concurring:
Any legislative scheme that compensates workmen or their families for industrial mishaps should be capable of simple and dependable enforcement. That was the aim of Congress when, with due regard for the diverse conditions in the several States, it afforded to harbor-workers the *259benefits of state workmen’s compensation laws. Act of October 6, 1917, c. 97, 40 Stat. 395, as amended by the Act of June 10, 1922, c. 216, 42 Stat. 634. But Southern Pacific Co. v. Jensen, 244 U. S. 205, and cases following, frustrated this purpose.
Such a desirable end cannot now be achieved merely by judicial repudiation of the Jensen doctrine. Too much has happened in the twenty-five years since that ill-starred decision. Federal and state enactments have so accommodated themselves to the complexity and confusion introduced by the Jensen rulings that the resources of adjudication can no longer bring relief from the difficulties which the judicial process itself brought into being. Therefore, until Congress sees fit to attempt another comprehensive solution of the problem, this Court can do no more than bring some order out of the remaining judicial chaos as marginal situations come before us. Because it contributes to that end, I join in the Court’s opinion.
Theoretic illogic is inevitable so long as the employee in a situation like the present is permitted to recover either under the federal act (cf. Parker v. Motor Boat Sales, 314 U. S. 244; Northern Coal Co. v. Strand, 278 U. S. 142; Nogueira v. N. Y., N. H. & H. R. Co., 281 U. S. 128; Employers’ Liability Assurance Co. v. Cook, 281 U. S. 233) or under a state statute (cf. Millers’ Underwriters v. Braud, 270 U. S. 59; Alaska Packers Assn. v. Accident Comm’n, 276 U. S. 467). That is the practical result, whether it be reached by the Court’s path or that apparently left open under the Chief Justice’s views. It is scant comfort to an employer that he may find he has committed a misdemeanor in not posting a bond as required by the federal act because he may have been advised, not unnaturally, that under the prior rulings of this Court the activities of his employees were local in nature and hence he could be sued only under state law.
*260Me. Chief Justice Stone :Any effort to lessen the uncertainties and complexities which have followed in the wake of the Jensen decision and its successors during the past twenty-five years deserves sympathetic consideration. But in the present state of the law, the Court’s attempt to remove them by construing state workmen’s compensation acts and the Longshoremen’s and Harbor Workers’ Act so that their coverages overlap, can hardly be deemed to be within judicial competence.
Section 3 of the Longshoremen’s Act, 33 U. S. C. § 903, authorizes payment of compensation “only ... if recovery for the disability or death through workmen’s compensation proceedings may not validly be provided by State law.” In Parker v. Motor Boat Sales, 314 U. S. 244, 250, we held, as a matter of construction of this clause of the statute, that it had adopted the rationale of J ensen and its followers, regardless of their constitutional validity, as “the measure by which Congress intended to mark the scope of the Act they brought into existence.” We thus decided that, if by the application of the Jensen doctrine recovery could not constitutionally be had under state laws, the federal act conferred a right of recovery whether or not the Jensen decision was sound.
The Court’s opinion in the present case seems to proceed upon the assumption that, if petitioner had filed a claim under the federal act, and the federal commissioner had awarded compensation, we would sustain his ruling, although the Court now holds that the state authorities erroneously concluded they were without constitutional power to make the award. Indeed, after our decision in Parker v. Motor Boat Sales, supra, petitioner’s right of recovery under the federal act can hardly be doubted: not only could a federal commissioner properly decide *261in favor of jurisdiction, but any candid application of the Jensen rule would seem to compel reversal of a federal commissioner who declined jurisdiction. See Northern Coal Co. v. Strand, 278 U. S. 142, and Employers’ Liability Assurance Co. v. Cook, 281 U. S. 233, both cited to justify the federal award in the Motor Boat case, 314 U. S. at 247.
Congress by the enactment of the Longshoremen’s and Harbor Workers’ Act has left no room for an overlapping dual system of the sort which the Court now espouses by placing its decision on a new doctrine that recovery under either the state or the federal act is to be sustained if the case is thought a close one. Section 5 of the Act, 33 U. S. C. § 905, provides that the employer’s liability under it “shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death . . .” See Nogueira v. N. Y., N. H. & H. R. Co., 281 U. S. 128, 137. I cannot say that this section does not mean what it says. If there is liability under the federal act, that liability is exclusive. It follows that, in any case in which compensation might have been awarded under the federal act, a recovery under state law is in plain derogation of the terms of the federal statute, as construed in the Motor Boat case, supra.1 Congress has made it our duty, before we sanction a recovery under state law, to ascertain that an award under the federal act can not be had.
*262The proposition that an employee in a “twilight zone” (where it is doubtful whether the federal or a state act applies) can recover under either act, not only controverts the words of the statute but also imposes an unauthorized burden on the employer. Besides being subjected to a liability which the statute forbids, he is compelled, in order to protect himself in the large number of cases in which the Court apparently would allow recovery under either act, to comply with both. Under the federal act, the employer must post security for compensation in a manner specified in § 32, 33 U. S. C. § 932, and failure to do so is a misdemeanor, § 38, 33 U. S. C. § 938, punishable by fine and imprisonment. Under state acts, there is an obligation to contribute insurance premiums, or take some comparable step, to say nothing of penal sanctions which a state may impose.
Congress has directed that if the case is within the federal statute, the employer shall be relieved of all other obligation. But in order to relieve the employee in a doubtful case of the necessity of filing two claims, one under each act, a double burden is imposed on the employer by an inadmissible construction of the federal act. The dual system of presumptions, which are to operate in favor of the employee, but apparently never against him, will serve to sustain an exercise of either state of federal jurisdiction in every case within the so-called “twilight zone.” But this is accomplished only by depriving employers of the immunity which Congress sought to confer when it set up a system in which federal and state acts are made mutually exclusive.
Although the basic question in these cases is said to be “factual,” the twilight zone doctrine does not reveal how — in view of the great weight which is to be given the federal commissioner’s finding, as in the Motor Boat case— we can in this case disregard the findings of four state *263tribunals,2 or what the function of this Court is to be in cases where the federal and the state commissioners both find against jurisdiction, or how the line which marks the doubtful case is to be drawn more readily than that which, under the Jensen doctrine, separates state from federal power.
Notwithstanding the ruling in the Motor Boat case that Congress had adopted the Jensen boundary of federal jurisdiction, there are in the present case special circumstances which take it out of that ruling and leave us free to reconsider Jensen’s constitutional basis. The exclusive liability section of the federal statute contains a proviso that if the employer fails to give security for payment of compensation, as required, then the employee may elect to claim compensation under the federal statute, “or to maintain an action at law or in admiralty.” The purpose of this proviso seems to be to preserve to the employee all remedies which he might otherwise have had, in the event that the employer does not give the prescribed security. Since this record does not show that the employer complied, petitioner is free to pursue any available remedy which the Constitution permits and which the state may choose to afford.
Only if the Court were to overrule the Jensen case in its constitutional aspects could I join in a reversal of the judgment here. If we are to continue to apply the Jensen *264doctrine, even when not required to do so by the federal act, then our own decisions, including the recent Motor Boat case, preclude a reversal of the Washington courts. Escape from Jensen’s embarrassments by the adoption of the twilight zone doctrine, in disregard of the jurisdictional command of the federal statute, is plainly not permissible. I am not persuaded that it is practicable.
Tbe Washington statute explicitly recognizes the exclusiveness of the federal statute, for in its coverage of employees engaged in maritime occupations it is made applicable only to those “for whom no right or obligation exists under the maritime laws.” § 7693a.
The state supervisor found that “after thorough investigation it has been determined that the work which the claimant was doing at the time of the said fatal accident does not come under the jurisdiction of the workmen’s compensation act, but is maritime in character” and “that the alleged injury was sustained on board a vessel in navigable waters and was therefore under admiralty jurisdiction.” His finding and decision were sustained by the joint board of the state department of labor and industries, the state superior eourt, and the state supreme court.