DISSENTING OPINION OP
PERRY, J.One Edwin Campsie, an employee of Catton, Neill & Co., Ltd., Avhile engaged in repairing the feed-pump on the ocean-going steamship “Hawkeye State” then lying at a dock in the harbor of Honolulu, in navigable waters, and during a call of that ship for the purpose of loading and unloading freight and passengers, was injured by escaping steam and died as a result of these injuries. His widow, for herself and on behalf of their children, thereupon instituted proceedings before the industrial accident board of the City and County of Honolulu for the recovery of compensation for his death in accordance with the terms of what is generally known as the Workmen’s Compensation Act of the Territory of Hawaii. The board awarded compensation to the petitioners. From that *755award an appeal was noted to the circuit court of the first circuit and the latter tribunal reserves to this court Ihe question of whether the petitioners may recover under the Workmen’s Compensation Act or whether they are limited to such remedy as is available to them in a court of admiralty. In my opinion they cannot lawfully recover under the Workmen’s Compensation Act. It will serve no useful purpose to set forth my views at length. I shall endeavor to state them briefly.
The ultimate question is, as it seems to me, ■ whether, under the particular circumstances of this case, the Workmen’s Compensation Act of this Territory conflicts with Article III, Section 2, of the Constitution, Avhich provides that “the judicial power shall extend * “ * to all cases of admiralty and maritime jurisdiction” or with Article I, Section 8, of the Constitution (Congress may make necessary and proper laws for carrying out granted powers) or with the general maritime law recognized by our admiralty courts or with any act of Congress relating to that law. ' (The Judiciary Act of 1789, Sec. 9, granted to United States district courts “exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction * * *, saving to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it.” This provision was carried into the Revised Statutes—Secs. 563 and 711—and thence into the Judicial Code—clause 3, Secs. 24 and 256. The saving clause remained unchanged until the statute of October 6, 1917, added “and to claimants the rights and remedies under the workmen’s compensation law of any state.”) If it does it is invalid to that extent and the petitioners must be left to their remedy in admiralty; if it does not, recovery may be had under the compensation law. All of the recent decisions of the Supreme Court of the United States make this the test.
*756In So. Pac. Co. v. Jensen, 244 U. S. 205, the injured person was a stevedore engaged at the time of the injury in moving cargo with the aid of an electrical conveyor on board of a ship in commission lying in navigable waters. It was a case of injury to a person engaged in maritime service; the tort was purely maritime and the contract out of which the tort arose was likewise purely maritime. The Supreme Court of the United States held that under those' circumstances the compensation law of the State of New York was not enforceable, holding that if the legislation under consideration “contravenes the essential purpose expressed by an act of. Congress or works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations” it is not valid and that “this limitation, at the least, is essential to the effective operation of the fundamental purposes for which such law was incorporated into our international laws by the Constitution itself.” It held more particularly that the New York statute “conflicts with the Constitution and to that extent is invalid.” The petitioners were not permitted to recover under the workmen’s compensation law. The court further said that in so deciding, “the work of a stevedore in which the deceased was engaging is maritime in its nature; his employment was a maritime contract; the injuries which he received were likewise maritime; and the rights and liabilities of the parties in connection therewith were matters clearly within the admiralty jurisdiction.”
In State Industrial Commission of New York v. Nordenholt, decided by the Supreme Court of the United States on May 29, 1922, advance sheets No. 625, the court said that “the liability of the employer for damages on account of injuries received on shipboard by an employee under *757a maritime contract is matter within the admiralty jurisdiction.”
In Grant Smith-Porter Company v. Rohde, 257 U. S. 469, the libellant received injury while at work on a partially completed vessel lying at a dock in navigable waters. His employer, the Grant Smith-Porter Ship Co., at and prior to the time of libellant’s injury, was engaged in constructing steam vessels for the United States government. One of these was the steamer “Ahala.” Prior to the injuries the “Ahala” had been launched into navigable waters but although substantially completed was not yet ready for delivery and the work upon which Rohde was engaged pertained to the construction of the vessel by the respondent company. He was engaged in constructing a bulkhead enclosing certain tanks in the vessel. The court held that the vessel, because it was not yet completed, was not a ship within the meaning of the maritime law and that “the contract for constructing £The Ahala’ was non-maritime, and, although the incom-pleted structure upon which the accident occurred was lying in navigable waters, neither Rohde’s general employment nor his activities at the time had any direct relation to navigation or commerce.” (That “the rule that contracts for construction of ships are non-maritime and not within the admiralty jurisdiction applies to contracts for the work and material necessary to finish a partly constructed vessel which has been launched,” see The Thames Towboat Co. v. The Francis McDonald, 254 U. S. 242.) The court reaffirmed that “the general doctrine that in contract matters admiralty jurisdiction depends upon the nature of the transaction and in tort matters upon the locality, has been so frequently asserted by this court that it must be treated as settled.” It held that Rohde could recover under the workmen’s compensation law of Oregon in which state the accident happened *758and could not recover damages in an admiralty court. It said, evidently summarizing its reasoning, “here tbe parties contracted with reference to the state statute; their rights and liabilities had no direct relation to navigation; and the application of the local law cannot materially affect any rules of the- sea Avhose uniformity is essential.” The workmen’s compensation law of Oregon gave an option both to employers and workmen to accept that law or to reject it, and provided that the compensation received thereunder should be in lieu of all other claims for the injury or death. How far the court relied upon this optional feature of the statute in arriving at its conclusion is not entirely clear to me. It said on this subject: “The injury was suffered within a state whose positive enactment prescribed an exclusive remedy therefor. And as both parties had accepted and proceeded under the statute by making payments to the Industrial Accident Fund it cannot properly be said that they consciously contracted with each other in contemplation of the general system of maritime law. Union Fish Co. v. Erickson, 248 U. S. 308. Under such circumstances regulation of the rights, obligations and consequent liabilities of the parties, as between themselves, by a local rule would not necessarily work material prejudice to any characteristic feature of the general maritime law, or interfere with the proper harmony or uniformity of that law in its international or interstate relations.” If this was an essentially fundamental fact in the disposition of that case, the case at bar is distinguishable in that respect; for in Hawaii the Workmen’s Compensation Act is compulsory and not optional. If this was not an essential in the minds of the Supreme Court of the United States, then for another fundamental reason the case at bar is distinguishable from the Bolide case.
In the Rohde case, in referring to the Jensen case, *759supra, the Chelentis case (247 U. S. 372), the Erickson case (248 U. S. 308) and the Knickerbocker case (253 U. S. 149), the court said that “in each of them the employment or contract was maritime in nature and the rights and liabilities of the parties were prescribed by general rules of maritime law essential to its proper harmony and uniformity.” I take it that the fact that the employment or contract was maritime in nature was the reason why the rights and liabilities of the parties were held to be prescribed by general rules of maritime law essential to its proper harmony and uniformity; and that if in the case at bar the employment or contract was maritime the same results must follow and the Workmen’s Compensation Act must be denied applicability or validity.
That the tort involved in the case at bar was maritime is beyond doubt. As “frequently asserted” by the Supreme Court of the United States (Rokcle case, p. 476) the jurisdiction of admiralty in tort matters depends upon the locality. Here the tort occurred upon a completed vessel, actually engaged in navigation, and in navigable waters. Under the recent cases of the Supreme Court of the United States it seems to be essential, too, that the tort should have arisen out of a contract maritime in its nature. Was the contract in the case at bar maritime in nature? At this point the question naturally arises, what contract is it that is to be thus examined into? Is it the contract between the employer, Catton, Neill & Co., and the ship, or is it the contract between the deceased (Campsie) and Catton, Neill & Co.? I find it unnecessary to decide this point definitely for the following reasons: If it is the contract between Catton, Neill & Co. and the ship which is to. be examined into, that contract under every test was clearly and purely maritime. It had no non-maritime features. So also, if it is the contract between Campsie and Catton, Neill & Co. *760that is to be examined into, it is in my judgment .to be regarded as maritime; and this evidently is the precise point upon which the majority and minority of this court differ. It is true that it has been repeatedly held in Federal authorities that with reference to admiralty jurisdiction, a contract which is mainly maritime and only in some incidental features non-maritime is within the jurisdiction of admiralty and that a contract which is mainly non-maritime and only in incidental features maritime is not within the jurisdiction of admiralty. But it seems to me that that discussion and that doctrine have no force in the case at bar. All that the pleadings show in this respect is that Campsie, in February, 1920, applied to Catton, Neill & Co. for employment and was thereupon “regularly employed” by the company as machinist and floor worker and that the work actually done by him in the course of the employment was up to the time of his death mainly in connection with non-maritime machinery. It does not appear that he had a contract for a definite period of time. For aught that appea'rs the employment was terminable at any time at the will of either party. As long as the employment continued and the services were performed, Campsie, it is to be presumed, was to be paid a stated sum of wages per day or per hour. The work done by him in marine repairs in the instance under consideration or in any other instance was clearly sever-able from the work done by him on sugar-mill machinery or in other engagements on shore. If he, in the event of his injuries not having resulted in death, or his heirs or representatives as the facts actually occurred, had sought to invoke the aid of a court of admiralty in recovering compensation for the injuries or death, as the case might be, would not admiralty have had jurisdiction irrespective of the fact that most of his work was done ashore and on non-maritime matters? It seems to me that it certainly *761would. The present case would not be dissimilar in this respect from those in which a watchman has been held entitled to the protection of an admiralty court for his wages earned while guarding a ship engaged in navigation but not so entitled while guarding a ship laid up for the winter or for lack of business (The Fortuna, 206 Fed. 573, and The Erinagh, 7 Fed. 231, 232, 235) ; nor dissimilar from a case in which charges for wharfage were held recoverable in admiralty as against ships that incurred those charges while engaged in navigation but not as against the same ships incurring those charges while out of commission and simply lying in winter quarters (Robinson v. The Vanderbilt and other ships, 86 Fed. 785) ; nor dissimilar from the case of a tort arising out of a watchman’s contract to protect a vessel while serving merely as a storehouse for grain, during the winter, although the same watchman protected the same vessel while it was actually engaged in navigation and before going into winter quarters (The Richard Winslow, 67 Fed. 259, 261, and on appeal, 71 Fed. 426). In cases of each of these three classes, the admiralty court, in entertaining jurisdiction with reference to the periods of time when the ship served was engaged in navigation, found no difficulty in merely discarding the fact that at other times, although under the same general employment with the same immediate employer, the watchman or owner of the wharf as the case may be served ships that were out of commission and in that respect rendered services that were non-maritime. Practical difficulties there are none in segregating the time when Campsie served in repairing the feed-pump from the other periods of time when he served in non-maritime ways; nor do I see any legal obstacle to this severance in the doctrine invoked relating to contracts mainly non-maritime and only incidentally maritime. On the subject of severability of *762somewhat similar items see Grant v. Poillon, 20 How. 162, 168; Turner v. Beacham, Fed. Cas. No. 14252; and Plummer v. Webb, Fed. Cas. No. 11233.
The fact that the ship itself is not liable for the tort sued upon is not controlling in determining whether admiralty has jurisdiction. In such a case, in spite of the nonliability of the ship and its owners, the immediate employer of the injured employee may nevertheless be sued in admiralty (the other jurisdictional facts being present) although the employer was not the owner of the ship and merely contracted with the ship owners to perform a maritime service for the ship. Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 61, 62.
Regarding this case, then, as one in which the employment and the decedent’s activities thereunder were entirely maritime and the tort leading to his death being also unquestionably maritime, it seems to me that the case at bar falls within the rule of the Jensen case and not within the rule of the Bolide case and that the present petitioners cannot recover under the Workmen’s Compensation Act. In contradistinction to the Rhode case, Campsie’s activities at the time of his injury did have direct relation to navigation and commerce. It has been definitely held that repairs to a completed ship at the time engaged in navigation constitute a maritime service. North Pac. S. S. Co. v. Hall Bros., 249 U. S. 119; The Planter, 7 Pet. 324, 340; The Robert W. Parsons, 191 U. S. 17; 1 Ency. U. S. Rep. 142; 1 Am. & Eng. Ency. L. 660; 1 C. J. 1276, Sec. 88. The “‘Hawkeye State” was in the course of a voyage from Baltimore to Honolulu via other ports and was desirous of proceeding on the return trip. She was here to také on freight and passengers. Her feed-pump broke doAvn and repairs were needed to enable the ship to proceed on its voyage and to perform its duties as a carrier of freight and passengers. The *763repairs of the pump were in aid of and related to navigation and nothing else. Campsie’s services with reference to the pump were for the same purpose and in law were wholly disconnected from any services which he rendered ashore for sugar mills, land engines or other machinery. If in the Jensen and Knickerbocker cases the fact that “the employment or contract Avas maritime in nature” enabled and required the court to say that “the rights and liabilities of the parties were prescribed by general rules of maritime law essential to its proper harmony and uniformity” and that the Avorkmen’s compensation statute would interfere with that proper harmony and uniformity of law, the same results must follow in the case at bar, if my view is correct that the employment and activities in repairing the feed-pump were maritime in nature. In the Rohde case the court concluded that “the application of the local laAV cannot materially affect any rules of the sea whose uniformity is essential” because it had found that “their rights and liabilities had no direct relation to navigation” and perhaps also because it found that “the parties contracted Avith reference to the state statute.” In the case under consideration the rights and liabilities of the parties did have a direct relation to naAdgation and, if it be material, the parties did not contract with reference to the territorial statute,—any further than parties contract with reference to a law of the land simply because it is in existence and has to be obeyed, and the latter, it would seem, is not the sense in which this language was used in the Rohde case, at page 477.
In my opinion, the reserved questions should be an-SAvered in the affirmative.