The Context

Much of the existing literature on state-labour relations has focused predominantly on the relationship between organised labour and the executive branch of the state, and has concentrated particularly on moments of crisis, such as strikes and subsequent state repression. Not surprisingly, the main conclusions have been that the state acted primarily as a disciplinary force in its relationship to labour and that the executive branch had almost exclusive initiative in mediating social conflict.Footnote ⁹ One work to have challenged these presumptions is Eduardo Zimmermann's 1996 study of Argentine politicians' first efforts to pass labour and social legislation.Footnote ¹⁰ Nevertheless, although legislators presented many bills, few were passed. Zimmermann's study therefore, despite making a convincing argument that the Argentine political elites did not exclusively opt for repression as their response to new social problems, does not alter significantly the perception that the legislature, in the end, largely failed in confronting the social question.

In the same way that the attention in the literature has been skewed toward the executive branch of the state, much of the attention given to labour has focused on the organised labour movement. A prevalent tendency in this regard has been to write labour history as a political chronology of organised labour, focusing on the emergence, development, politics and ideological orientations of the different labour unions.Footnote ¹¹ The prevailing view is that from the turn of the twentieth century and until the early 1910s, when the Anarchists dominated the organised labour movement, workers preferred to confront employers directly through strikes rather than to seek an institutional response from the state to their grievances.Footnote ¹² While there are exceptions to the predominant focus on organised labour for this period, most notably Mirta Lobato's excellent case study of the workers in the meatpacking plants in Berisso,Footnote ¹³ they have not taken issue with that perception of state-labour relations.

The current article makes several claims that both contribute to and challenge the literature on state-labour relations outlined above. First, it asserts that the judiciary, which has been largely ignored in the study of state-labour relations in this period, was actually the most important branch of the state in articulating an institutional response to the social question that went beyond immediate crisis management during strikes. Second, the kind of solutions the judiciary was able to offer to the social question effectively defined the kind of citizenship rights that workers were able to claim. In this respect, one implication of the research is that workers at this time invoked citizenship rights in the judicial arena that were of an economic and social nature, and that were intrinsically linked to their condition as workers. Daniel James, making use of T. H. Marshall's theory of citizenship in his landmark study on Peronism, claims that one of the explanations for Perón's political success with workers lay in his capacity to expand the notion of citizenship from one that was exclusively political, to one that was ‘now redefined in terms of the economic and social realm of civil society’.Footnote ¹⁴ This article, however, suggests that workers' own notion of ‘social citizenship’ antedated Perón and was – under certain circumstances – recognised by the state in the shape of its judicial branch.Footnote ¹⁵ Indeed, the judiciary after 1905 recognised wider citizenship rights for workers than did both the legislature and the executive, and the rights were intrinsically linked to the plaintiffs' condition of being workers, victims of occupational accidents. This throws new light on the argument made by Matthew Karush in his book, Workers or Citizens, that Argentine ruling elites in their hegemonic project for nation-state formation sought to deny workers any class-based identity and thereby create a ‘de-classed’ citizenry in order to preserve social order.Footnote ¹⁶ The court cases examined in this article suggest a different elite vision of how to incorporate workers into the nation-state and thereby preserve social order: By recognising rather than denying the legitimacy of workers' claims, judges hoped there would be less need for workers to make their demands in other arenas, such as in Anarchist unions or through strikes.

This article makes two additional contributions to the literature on state-labour relations in Argentina at the turn of the twentieth century. By focusing on individual workers' court actions, it provides a glimpse into the world of work that renders particularly well the heterogeneous nature of work and of workers in Argentina at this time. The legal sources forming the basis for this article make workers visible as carriage drivers, railroad workers and commercial employees, all sharing the insecurities of that heterogeneous world of work they inhabited. This heterogeneity is often missed in studies that focus on factory workers. Secondly, these court cases show an important area of state-labour interaction that has been lost in studies that look predominantly at organised labour. Indeed, they show that individual workers were not as averse to resorting to the state for a redress of their grievances at this time, as studies of the Anarchist labour movement have previously led us to believe.

The other main historiographic field that informs the present article is that of legal history, or more specifically, the ‘new’ legal history.Footnote ¹⁷ Inspired by the writings of Michel Foucault, much of the new legal history has focused on criminal law and has covered in detail the development of a modern prison system; how notions of race, gender and class served to define social deviance, and the relationship between crime, punishment and social control.Footnote ¹⁸ Even if many of these studies are careful to stress that law is not exclusively an instrument of social control, but a space where power is contested and negotiated,Footnote ¹⁹ it is unsurprising that they have tended to accentuate the law as one of the state's major disciplinary tools. In short, studying the law from a criminal perspective highlights the law as a powerful and often repressive instrument of nation building. Studying nation building and the relationship between state and society through criminal law, however, runs the danger of focusing too much attention on the deviant. After all, civil and commercial law defines a greater part of the legal relationship between the state and civil society than criminal law.

Little attention has been devoted to the workings of Argentine civil and commercial law, with some notable exceptions. Jeremy Adelman's Republic of Capital analyses the institutional transformation from mercantilism to commercial capitalism that occurred in Argentina in the nineteenth century.Footnote ²⁰ Focusing on the development of commercial law, it is consequently also a legal history of state-market relations, which, according to Adelman, constituted a key element of nation-state formation in Argentina in the nineteenth century. Another exception to the dominant preoccupation with criminal law is Juan Manuel Palacio's case study of the Jueces de Paz in Coronel Dorrego, a department in the province of Buenos Aires.Footnote ²¹ The present article adds to this relatively scant literature on how non-criminal law has constituted a central element of the institutional nature of state-society relations in Argentina and Latin America in general.

It has been well documented that underprivileged groups at different moments in history have resorted to the courts to resolve conflicts and redress their grievances.Footnote ²² Showing that workers did so too is not the principal contribution of this article. Rather, its contribution lies in showing how ‘the law’ – including the absence of law and the judicial decisions intended to fill it – formed an intrinsic part of the relationship between workers and the state, between workers and employers, and between the state, workers and employers. Finally, while conceptually the article departs from the conviction – shared by the great majority of works in the new legal history – that ‘the law’ should be considered an arena for negotiation of power, I focus particular attention on how legal doctrines and principles defined both the terms and the possible end results of that negotiation. In other words, although the law must certainly be understood as embedded in – and responsive to – the larger social, economic and political order of which it forms a part, it is also in part autonomous. As this article will show, the legal framework available to judges and workers, as well as the procedural workings of the court system, ultimately decided the kind of citizenship workers were able to claim in court.

Interpretations of the Civil Code in Cases of Occupational Accidents, 1900–1915

During the 15 years before the passage of the first Argentine occupational accident law in 1915, Argentine courtrooms were confronted with the new social and economic reality brought about by the changes in the world of work inherent to the process of modernisation. With a work environment characterised by precarious working conditions and increasing mechanisation, occupational accidents were frequent and of serious consequences for the workers involved and their families. In an attempt to receive financial compensation from their employers for the temporary or permanent loss of income, workers – or their relatives – in some cases took their employers to court.

In the absence of a specific occupational accident law, plaintiffs invoked the general dispositions of the Civil Code pertaining to damages. The right to damages established in the Argentine Civil Code was embodied primarily in its Article 1109, which states: ‘Any one who performs an act, and whose fault (culpa) or negligence (negligencia) causes a damage to someone else, is under the obligation to compensate the damage … ’.Footnote ²³ This part of the article examines how judges' interpretations of the Civil Code in cases of occupational accidents changed during the course of these 15 years. The changes and developments in interpretations can roughly be divided into two periods: The first lasted until 1905 and can be called the period of ‘restrictive’ or ‘classical’ interpretation. The second period, from 1905 and until the passing of the Occupational Accident Law in 1915, is referred to as the period of ‘sociological’ interpretation.Footnote ²⁴

The Restrictive or Classical Interpretation, 1900–1905

The right to damages embodied in the Argentine Civil Code's Article 1109 centred on the notion of fault. In short, it was necessary for anyone suing a person for damages to prove that the defendant had been either directly at fault in producing the damage, or that the damage was due to the defendant's negligence. The main problem in applying the principle of fault to cases of occupational accidents, however, was that most such accidents did not occur because the employer caused them directly through fault or negligence. Rather, they were accidents inherent to the nature of work, especially industrial work. Working with machinery was potentially dangerous in itself and became even more so when one considers the long hours and the often deplorable working conditions the Argentine workers were subject to at the turn of the twentieth century.

Only about 25% of all occupational accidents could be attributed to the direct negligence or fault of the employer. Another 25% were estimated to have been caused by the worker's own imprudence, and the remaining incidents occurred without anyone being directly responsible. Thus, approximately 75% of all occupational accidents fell outside the dispositions for damages in the Civil Code.Footnote ²⁵ With a literal interpretation of the notions of fault and negligence, workers had little hope of obtaining compensation, and the first cases of occupational accidents tried in the courts confirm this statement. The Capital's Civil Court of Appeals ruled uniformly during these years, establishing the doctrine that, to be eligible for compensation for damages, it was necessary to prove that the occupational accident had been caused by the direct fault or negligence of the defendant.Footnote ²⁶

In 1903, however, Judge Ernesto Quesada in the Capital's Civil Court challenged this restrictive interpretation for the first time in a ruling of the first instance. On 27 June Quesada ruled that the worker Bautista Lenardón was entitled to a compensation of 5,000 pesos from his employers Del Piano and Lucas, the owners of the mill Solís. Lenardón had broken his leg when the scaffold on which he was standing collapsed. He initially sued Del Piano and Lucas for 15,000 pesos for the damages produced by the accident, but Judge Quesada reduced this to 5,000 pesos. It should be noted that, even if the amount was reduced from the plaintiff's initial claim, 5,000 pesos was still a significant amount of money in 1903. According to statistics from the National Labour Department, the average monthly salary for an experienced bricklayer ranged between 70 and 120 pesos at this time. Even if we operate with the maximum range of this scale; i.e., a salary of 120 pesos per month, Lenardón's compensation still amounted to three and a half times the annual salary of a skilled bricklayer.Footnote ²⁷

Quesada's rationale for his decision illustrates a new way of interpreting the notion of fault in cases of occupational accidents:

According to Quesada, fault was not only attributable to someone who through a direct action caused a damage, but also to someone who failed to take the necessary precautions in order to insure the prevention of an accident. In his interpretation, the notion of fault not only embodied action, but also an omission to act, which considerably extended the meaning of the term fault in comparison to the previous sentences. Ernesto Quesada was therefore the first judge to uphold the doctrine that Rafael Bielsa later summarised in the following way: ‘[W]here there is fault, whether this consists of carelessness or negligence, action or omission, the legal principle [of fault] is applicable ….’Footnote ²⁹ Quesada's sentence was not upheld in the court of appeals, however, where the traditional and restrictive interpretation of the Civil Code was reiterated. The court ruled that ‘if the accident is caused by the worker's own lack of foresight, compensation for damages is not admissible’, and that ‘the owners or employers of the factory are not obliged to personally supervise the state of the equipment commonly used by the worker’.Footnote ³⁰ Although the classical or restrictive interpretation of the Civil Code was upheld by the court of appeals in this case, it turned out to be challenged more decisively shortly afterwards.

The Sociological Interpretation, 1905–1915

A second sentence pronounced by Ernesto Quesada on 10 May 1905 initiated a whole new phase in Argentine jurisprudence in the field of occupational accidents. In the case Olivera v. Mareyra y Othacché, Carmelo E. Olivera sued the employers of his son, José Mareyra and José Othacché, for the damages the son had suffered in an occupational accident in their textile factory. Olivera Junior, who was a minor, had lost his hand when it got caught in a machine in the factory on 10 December 1902, and Judge Quesada sentenced Mareyra and Othacché to pay the minor's father 3,000 pesos. In his rationale this time, Quesada went even further than in his 1903 sentence in reinterpreting the principles of the Civil Code and their application to cases of occupational accidents.Footnote ³¹ In an analysis of the sentence, Federico Figueroa synthesised the three important principles it established:

1. (1) That the action for damages in these cases (of occupational accidents) is not only appropriate when one can prove the fault or negligence on behalf of the employer. What constitutes the ground for action is the damage suffered without reason, whatever may be the cause, however good the machinery used, and however thorough the supervision of employers and foremen may be.

2. (2) That our Civil Code, without awaiting special labour laws, has legislated the matter with such ample criterion that nothing escapes its regulations; this has also been established by the jurisprudence of the Supreme Court ….

3. (3) That it does not fall to the worker to prove fault; instead, that proof, on inverted terms, falls to the employer. With this established, … there is no reason to consider the responsibility or intention of the immediate agent in the act. One only considers the act that has produced the damage, because the employer answers for the acts of industry whether or not these are produced by the workers, by the objects forming part of or intervening in the industry, whether they are due to proper fault or the object's risk, whether they are acts of nature or they result from the industry itself. [The employer is responsible] in all cases where the damage suffered by the worker or employee cannot be attributed to his [the worker's] own fault or intention.Footnote ³²

Each one of these points established important juridical principles and precedents that are worthy of a more detailed analysis.

Maybe the most significant and innovative interpretation by Quesada in this 1905 sentence was his dismissal of the relevance of the traditional notion of fault, on which all previous sentences had been based. Instead of needing to prove fault or negligence on behalf of the employer, Quesada stated that ‘the employer is responsible for whatever damage the worker or employee may suffer … due to the nature of his work or on the occasion of work, and for whatever damage he would not have suffered, had he not accepted the job, even if it is accidental or produced by force majeure (fuerza mayor)’.Footnote ³³ The notion that the employer was inherently responsible for any and all kinds of accidents suffered by a worker while performing his job is usually referred to as the principle of ‘occupational risk’.

The legal doctrine of occupational risk was not Quesada's innovation, however. According to Alejandro Ruzo, the doctrine originated in France in the nineteenth century and should be attributed to the jurist Julio [Jules] Favre. From France, it then spread to other European nations to form the basis for legislation pertaining to occupational accidents. The doctrine had three fundamental principles: First, that there is an inherent risk to all industry, especially large industry. Second, that the employer, as the representative of industry, has to assume the responsibility for this risk. This applies in all cases, regardless of whether the employer is at fault, whether precautions have been taken, in short, regardless of all circumstances. Third, that the compensation received should be equivalent to the damage occurred.Footnote ³⁴ By 1905, the following European countries had already passed occupational accident laws that adopted the doctrine of occupational risk: Denmark, Spain, Belgium, France, England, Greece, Russia, Italy, Finland, Holland, Germany, Austria, Luxemburg, Sweden and Norway.Footnote ³⁵

Quesada was undoubtedly familiar with European occupational accident legislation and the legal principles on which it was founded. The Argentine intellectual elite's intimate familiarity and preoccupation with European ideas – and especially French ideas – has been amply documented,Footnote ³⁶ and legal scholars were no exception. Legal commentaries usually dedicated substantial space to European, and sometimes North American, legal precedents and doctrines, as was the case in the special issue of the Boletín del Departamento Nacional del Trabajo dedicated to the topic of occupational accidents.Footnote ³⁷ Indeed, such knowledge seems to have been taken for granted among the experts in the field. Miguel Angel Garmendia, in a 1918 monograph, mentions in a footnote a few of the most important French works on labour legislation: [Léon] Duguit, [Adrien] Sachet, and Paul Pic. Matter-of-factly he states that the new directions in the field of private law have given rise to a copious literature, and that ‘[t]hese doctrines are familiar to all of those who dedicate themselves to the study of such important subjects’.Footnote ³⁸

Nevertheless, Argentine judges could not freely borrow from foreign legislation or foreign legal doctrine and apply principles to national cases that did not have a basis in Argentine law. In fact, Quesada makes no reference to foreign legal precedents in his 1905 decision, but rather goes to great pains to show that the foundations for the doctrine of occupational risk could actually be found in several articles of the Argentine Civil Code itself. Consequently, Quesada found sufficient rationale to put aside the notion of fault in his ruling.

To claim that the employer's responsibility in cases of occupational accidents was a given, regardless of whether or not he was at fault, was doubtless bold and innovative – not to mention controversial – interpretation of the Civil Code. To understand Quesada's radical decision, it is important to pay careful attention to the historical moment in which he pronounced his ruling. The first time he made room for the plaintiff's claim to damages was in 1903, the year after the first big general strike had taken place in Argentina. The strike was headed by the growing Anarchist organisations that dominated the labour movement at the time and had caused considerable concern among the governing elites, who had responded by declaring a state of siege and promulgating the repressive Residence Law. In addition to repressive measures, however, the government realised the need to propose long-term institutional solutions to the social question, which had so forcefully made its entrance on to the Argentine political stage. An important legislative response was to present a Labour Code bill in 1904.Footnote ³⁹

The need to channel social conflict through institutional structures to prevent it from assuming more radical expressions was not just perceived by the legislators, but also by judges. As Eduardo Zimmermann has pointed out, jurists at the time engaged in an active debate about how juridical institutions could best adapt to the new social phenomena.Footnote ⁴⁰ Quesada himself expressed this concern in a talk he gave in the city of La Plata in 1907. He worried that, if the indifference among intellectuals to the antagonism between labour and capital continued, the class struggle and its ‘Marxist Gospel’ was threatening to make into a ‘terrifying problem’ something which ‘appropriately directed could be just a more or less normal accident in the Argentine development’.Footnote ⁴¹

Quesada took it upon himself to provide this ‘appropriate direction’ when ruling in labour cases in his courtroom. Oscar Terán, in his detailed analysis of Quesada's writing and ideas, explains that his treatment of the social question can be seen as a typical intervention from a reformist member of the elite, steeped in scientific culture. Quesada advocated a moderate state intervention in the form of social reformism as the appropriate government response to the new, conflictive, relationship between labour and capital, and that this state intervention should be based on scientific criteria of social analysis.Footnote ⁴² With this kind of state intervention, it would be possible to prevent workers' discontent from assuming more radical expressions, such as adherence to the Anarchist organisations that were flourishing in Argentina – and especially in Buenos Aires – at the time.Footnote ⁴³

In the extension of his radical introduction of the principle of occupational risk, Quesada established another juridical principle that would prove even more important in terms of its influence on future jurisprudence. This was the principle of ‘the inverted burden of proof’, or inversión de la prueba. According to the classical interpretation of the Civil Code, it was the worker who had to provide proof of the employer's fault or negligence. However, the core of the doctrine of occupational risk was the automatic presumption of the employer's responsibility. If the employer's responsibility were automatically presumed, it would no longer fall to the worker to prove the employer's fault; rather, it would fall to the employer to prove the existence of special circumstances absolving him of his responsibility to compensate. In short, an automatic presumption of the employer's responsibility shifted the burden of proof from the worker to the employer.

There can be no doubt about the transcendental importance of Quesada's sentence. As Miguel Angel Garmendia stated:

Quesada's decision was far from uncontroversial, however. When the Court of Appeals upheld the sentence, the judges conveniently confirmed its outcome, but refrained from commenting on its rationale. That is, they upheld the decision that Olivera was entitled to damages from his son's employers, but justified their decision by claiming that Mareyra and Othacché had shown carelessness in employing a child to perform a dangerous factory task. They had therefore been at fault.Footnote ⁴⁵ Thus, the Court based their decision on an expanded definition of the traditional concept of fault and not the principle of occupational risk invoked by Quesada.

In fact, few judges were willing to go as far as Quesada in claiming that the doctrine of occupational risk was actually embodied in the Civil Code. Rather than automatically presuming the employer's responsibility, judges after 1905 stretched and bent the dispositions of the Civil Code in an attempt to prove it. Just like the Court of Appeals, they based their rulings on the traditional, albeit expanded, notion of fault. This expanded notion of fault was invoked in different ways and under different circumstances in the cases presented between 1905 and 1915. If the worker and his counsel were able to show that the accident was due to the omission of even the most minimal precaution to ensure worker safety, there was a good chance the judges would rule in their favour. The same was the case when the accident was produced by the failure of any of the equipment used.

As such, these were analogous cases to Quesada's 1903 sentence, which had established that it was the employer's responsibility to take all possible measures to prevent the occurrence of accidents. This included insuring the good condition of his establishment's equipment. In Antonio Messina v. Medici y Lacaze, a federal judge of the capital, Agustín Urdinarrain, on 14 September 1909, sentenced the company of Medici and Lacaze to pay Antonio Messina 12,000 pesos in damages for an accident his son had suffered on board their ship ‘Beatriz Amanda P’. The accident occurred when the chain of a loading crane broke and the load came down on the minor's left leg, shattering it completely below the knee. The Court of Appeals confirmed the sentence on 30 September 1909, upholding Urdinarrain's ruling that the employer is responsible for the damages caused in an accident produced by the faulty equipment that is his property.Footnote ⁴⁶

Another example of this principle can be seen in the case José Orlando v. Enrique Fynn, sentenced by Judge Jorge de la Torre of the Capital's Civil Court in the first instance on 31 December 1909.Footnote ⁴⁷ In this case, the blacksmith José Orlando had been injured when he fell down the stairs to the basement of Enrique Fynn's workshop. According to Orlando, the accident had occurred because of the dangerous conditions of the basement entrance. The only access to the basement was through an opening in the floor, an opening that was partially obstructed by an iron beam. In order to descend into the basement, it was necessary for the blacksmith to bend under the beam to reach the movable staircase leading from the opening in the floor and down to the workshop. The staircase was without handrails. As Orlando approached the opening, he did not bend down far enough, hit himself on the beam and fell into the basement. Judge de la Torre, basing his sentence on the responsibility of the employer to compensate an accident provoked by the omission of safety precautions, ruled that Enrique Fynn should pay the accident victim 15,000 pesos in compensation. An interesting aspect of this sentence is that the judge dismissed the defendant's argument that the accident had been caused by the plaintiff's own carelessness, and that this should absolve him of any responsibility for the incident. De la Torre declared that ‘even in the case that the plaintiff should have proceeded thoughtlessly or carelessly, which has not been proved, this would not exempt the defendant from responsibility … ’.Footnote ⁴⁸ His ruling was upheld in the Court of Appeals on 3 December 1910, though the compensation was reduced to 6,000 pesos.Footnote ⁴⁹

Where the victims of occupational accidents were minors, their age could constitute an advantage for the plaintiff in proving the employer's fault. As seen in Quesada's 1905 sentence, the Court of Appeals that upheld his ruling founded its decision on the claim that the employer had been at fault when employing a minor to perform a potentially dangerous factory task. This was true also in the case Aquiles Panella v. Juan Ferrari,Footnote ⁵⁰ where Panella sued Ferrari for damages due to the death of his son Rómulo, who had been employed in the defendant's store (almacén). The tragic incident occurred when Rómulo, at the order of his employer, had gone to the basement to fetch a container of alcohol. He had taken with him a candle, which apparently constituted the only lighting available in the establishment. When reaching for the container on the shelf, which was situated almost two metres above ground, the minor lost his balance, spilling alcohol on his clothes which then caught on fire, and the boy died some days later as the result of the burns.

Judge E. Giménez Zapiola, of the Capital's Civil Court of the first instance, ruled on 14 March 1910 that, ‘when hiring the services of the minor, [the defendant] contracted the obligation to look after him, preventing him from performing any act that would involve a danger to his life’.Footnote ⁵¹ The notion that the employer had special responsibility for the safety of employees who were minors was also invoked in the case Eloísa Moreno v. F.C.C.A. In revoking the sentence of B. Palacios, federal judge of Santiago del Estero, the court of appeals in Córdoba resolved that Eloísa Moreno was entitled to 4,000 pesos in damages for the accident suffered by her seventeen-year-old son, Fortunato Moreno, which resulted in the loss of his left hand.Footnote ⁵² The court ruled that ‘the admission made by the company … to have set the minor Moreno … to perform such delicate and dangerous tasks as those of switch operator is sufficient to attribute to it the harmful consequences of its carelessness’.Footnote ⁵³

Despite the fact that most judges were not willing to follow Quesada's example in adopting the doctrine of occupational risk, the principle of the inverted burden of proof was applied in various sentences in the period between 1905 and 1915. This was of utmost importance for workers as plaintiffs since meeting the burden of proof constituted one of the major obstacles for workers in the courtrooms. Often, the only proof the worker could present was the testimony of other workers. Most workers, however, would not want to challenge their boss by testifying against him in court, for fear of losing their job or suffering other forms of reprisals. The uneven situation of power made it especially difficult for the plaintiff to meet the burden of proof. If the judge was willing to accept an inversion of the burden of proof, it significantly increased the worker's chances of winning the lawsuit.

One kind of accident where judges found it possible to invoke the principle of inverted proof was when a machine in the workplace had directly caused the injury. In these cases, some judges found room for applying the Article 1133 of the Civil Code, which states: ‘When damage is inflicted by any kind of inanimate object, its owner is responsible for the compensation, unless he can prove that there exists no fault (culpa) on his behalf … ’. This was the case, for example, in María Bravi De Mazzoni v. Ruizli y Ortiz,Footnote ⁵⁴ where Judge R. Naveira of the Capital's Civil Court in the first instance on 11 December 1913 ruled:

The sentence was also upheld in the Court of Appeals.

In some cases, the principle of the inverted burden of proof was invoked with a different rationale than Article 1133 of the Civil Code. Rather, it was based on what was referred to as the doctrine of contractual fault (falta contractual). This doctrine, espoused by several of the European jurists concerned with the new field of labour legislation, was based on the tenet that there are certain rights and obligations inherent to a contractual agreement where the worker agrees to sell his labour to the employer.Footnote ⁵⁶ A cornerstone of this arrangement was the employer's obligation to pay the worker for his labour. In addition, however, these theorists considered the employer's responsibility to provide for his employee's safety while performing tasks at his order to be inherent to the labour contract.Footnote ⁵⁷ If it is an automatic and inherent part of the labour contract that the employer should ensure the safety of his employee, then it is the employer who must be assumed responsible in the case of an occupational accident. In effect, this was the same principle, albeit with a different justification, established in the doctrine of occupational risk. In both cases, the burden of proof lay with the employer rather than with the worker.Footnote ⁵⁸

The Special Case of Railroad Workers

Railroad workers found themselves in a special position when it came to occupational accidents, for various reasons. First, they were employed in one of the most dangerous industries that existed at the time, and where accidents happened frequently. Second, they belonged to an industry that had developed in the nineteenth century, one that had occupied a central position in the nation-building project. Because of its centrality to the economic life of the new republic, separate laws had regulated the operation of the railroad from the very beginning of its existence. The first national railroad law, for example, had been passed in 1872 and had been replaced in 1891 by Law 2873.Footnote ⁵⁹ The National Railroad Law contained a detailed regulation of the railroad companies' operations and established schedules and prices. It also defined the railroad companies' obligations to their passengers as well as to the companies and individuals for whom the railroad was essential in the transportation of merchandise (cargadores). An important aspect of the law was to establish appropriate security measures to insure the smooth functioning of trade and transportation. Article 5 outlined a range of measures the railroad company was obliged to adopt to avoid accidents, and Article 91 established that any breach of the law's regulations automatically made the railroad company responsible. Although these articles were intended to regulate the relationship between the railroad companies and their customers, railroad workers who had been victims of occupational accidents invoked these dispositions in the courtrooms in an attempt to establish the employer's responsibility.

This was the case, for example, in Miguel González v. F.C.C. Argentino.Footnote ⁶⁰ The complaint was first heard in 1912 in the Federal Court of the first instance in Rosario, Santa Fe, and subsequently in the Federal Court of Appeals on 11 March 1915. The judge of the first instance, Eugenio Pucci y Benza, applied the traditional interpretation that the plaintiff had to prove fault on behalf of the defendant in order to be eligible for damages and consequently rejected González's claim. The Court of Appeals, however, revoked the sentence on the basis that the company had failed to adopt the security measures outlined in Article 87 in the Reglamento de Ferrocarriles and sentenced the company to pay González 6,000 pesos in compensation.Footnote ⁶¹ Again, it should be noted that this was a significant amount. According to statistics assembled by Carlos Díaz Alejandro, the average annual salary for a railroad worker in the period 1909–1914 was 1,081 pesos, the compensation therefore was approximately six times this amount.Footnote ⁶²

While the appeals court decision was an application of the expanded notion of fault, there were other cases in which the judges went further in presuming the responsibility of the employer. Interesting in this respect is the invocation of the National Railroad Law's Article 65, which stated: ‘In the case of accidents, it falls to the companies to prove that the damage is due to unforeseen circumstances (caso fortuito) or force majeure.’Footnote ⁶³ It logically followed that the company's responsibility in the case of an accident should be automatically presumed, inverting the burden of proof. If one reads Article 65 in its entirety, however, it becomes clear that its dispositions were intended to regulate the relationship between the company and its passengers rather than the relationship between the company and its employees.Footnote ⁶⁴

Two rulings by Federal Judge Juan Alvarez in Rosario, Santa Fe, are particularly noteworthy with regard to the application of the National Railroad Law's Article 65 to cases of occupational accidents. In the first case, Luis Caballero sued the Compañía General de Ferrocarriles en la Provincia de Buenos Aires for damages after his son Luis lost his left hand while at work for the company. Alvarez ruled in favour of the plaintiff, applying the latter part of Article 65 of the National Railroad Law and on 31 March 1913 sentenced the company to pay the plaintiff a compensation of 2,000 pesos within three days.Footnote ⁶⁵ When the sentence was appealed, the court upheld the decision to compensate the plaintiff, but was hesitant to accept Alvarez's rationale to apply the Railroad Law's Article 65. In fact, the Supreme Court had previously ruled that the last part of Article 65 only referred to the relationship between the companies and their passengers and cargadores, which made it difficult to claim it could be applied to cases of occupational accidents. The Court of Appeal instead decided to uphold the sentence on the basis that the company had been at fault by not complying with security regulations. The court, by choosing to rely on an expanded notion of fault rather than the National Railroad Law's Article 65 to establish the employer's responsibility, reiterated the interpretation that fault had to be proved rather than presumed.Footnote ⁶⁶

In spite of the Appeals Court's rationale, Federal Judge Juan Alvarez repeated his interpretation of the National Railroad Law in Agapito Miranda v. Ferrocarril Central Argentino.Footnote ⁶⁷ In his decision, he again claimed that the company's fault was automatically presumed in all cases of accidents – including occupational accidents – unless the company could prove that the accident was due to unforeseen circumstances or force majeure.Footnote ⁶⁸ On 7 October 1915, the Federal Court of Appeals again confirmed the plaintiff's right to compensation, but with the same rationale as in the above-mentioned Luis Caballero v. Compañía General de Ferrocarriles en la Provincia de Buenos Aires. The court's pronunciation is confusing and shows its hesitation and vacillation in employing the National Railroad Law in matters of occupational accidents at all:

José Alleva v. Compañía Francesa de los Ferrocarriles de la Provincia Footnote ⁷⁰ was another case involving railroad workers that illustrates the eclectic application of different legal principles to cases of occupational accidents before 1915. In their ruling in the Court of Appeals in the city of Santa Fe on 31 October 1910, the judges chose to invoke the Commercial Code rather than the National Railroad Law. Claiming that a railroad company was primarily a commercial establishment, they considered the articles of the Commercial Code to be applicable. Basing its decision on the Code's Article 156, the Court of Appeals determined that the victim was eligible for compensation in accordance with the principle of occupational risk.Footnote ⁷¹ Together with Quesada's and Alvarez's sentences, this ruling belonged among the more radical reinterpretations of the existing legal framework in cases of occupational accidents.

Obstacles for Labour in the Courts

The fact that after 1905 judges started interpreting the classical notion of fault more extensively by no means meant that the courts provided a satisfactory alternative to an occupational accident law. The courts were important primarily by default because there was nowhere else for the workers and their families to turn when they struggled to make ends meet in the aftermath of an accident. Besides, workers faced substantial obstacles when resorting to the court system. One of the main problems, as seen above, was meeting the burden of proof. If the worker failed to show the employer's negligence or carelessness, or a lack of proper security measures, the chance that the ruling would result in his favour was significantly diminished.

The following cases serve as poignant illustration to this point. In Genaro Freire v. La Compañía Cervecería Palermo,Footnote ⁷² Freire had been the victim of an occupational accident when one of the beer bottles he was stowing suddenly exploded. As a result of the accident, he lost a good part of the feeling in his hand and could move his fingers only with great difficulty, which made him unable to continue performing his job. The plaintiff alleged the responsibility of the employer by claiming the accident had occurred because of the faulty way the company stored the beer, which caused the bottles to explode as a result of the fermentation of the alcohol. Consequently, the company was at fault according to Article 1109 of the Civil Code.Footnote ⁷³ In order to prove the company's responsibility, Freire had three of his co-workers testify that the bottle exploded due to the fermentation of the beer, and that the situation was caused by the bottle's change in temperature after leaving the pasteurising machine and before stowing. The judge, however, swiftly dismissed the testimony of the plaintiff's co-workers with the following reasoning:

He continued to rule that the company's responsibility had not been proved and rejected the plaintiff's claim. The sentence was pronounced in the Capital's Civil Court of the first instance on 11 June 1910 and was upheld in the court of appeals on 10 December the same year.

The case aptly illustrates several of the major obstacles workers encountered in lawsuits over damages for occupational accidents. First, even if one applied an expanded notion of fault, many accidents were simply the result of the inherent risk of work itself and could not be attributed to even the slightest lack of precaution on behalf of the employer, or to the failure of specific equipment, as was Freire's case. This shows how anything short of the adoption of the concept of occupational risk, embodied in law, constituted a highly insufficient solution to the problem of occupational accidents. Second, the case is a poignant illustration of the difficulties involved in having to prove the employer's fault. Not only was it difficult in itself to document the existence of fault, but workers were also at a disadvantage compared to their employers with respect to witnesses. In Freire's case, he at least managed to have three co-workers testify for him. A more common scenario was that it was very difficult for workers to find colleagues who were willing to testify against their employers. As the case further illustrates, even when the worker did find witnesses to testify on his behalf, their testimonies could easily be dismissed, since the testimonies of ‘simple’ workers could not be compared to that of more technical ‘experts’. Last, but not least, it was easier for employers than for workers to present witnesses with a high social status and therefore increase their credibility.

One of the most obvious obstacles workers faced when forced to rely on the court system to remedy their grievances was the costly and time-consuming nature of a regular civil lawsuit. Most workers did not have the money to hire a lawyer to take their case and were even less able to support the risk of accumulating additional expenses if they should lose. Workers' generally poor financial circumstances were additionally worsened in the aftermath of an accident, making the financial obstacles to litigation insurmountable to most.Footnote ⁷⁵ A civil lawsuit for damages could also take a long time to bring to conclusion. From what can be discerned from the cases studied in this article, it could take years between a case was initiated and the final ruling was pronounced.

Freire, for example, had suffered the accident on 29 May 1909. The court in the first instance pronounced its ruling on 11 June 1910 and the Court of Appeals on 16 December the same year. With a year and a half between the occurrence of the accident and the Court of Appeal's final ruling, his case was actually fairly swift in comparison to many others. In the case Aquiles Panella v. Juan Ferrari, the accident had taken place on 23 April 1908, and the final sentence was pronounced by the Court of Appeals on 23 March 1911, almost three years later.Footnote ⁷⁶ The situation was even worse in the case of José Orlando v. Enrique Fynn, where the Court of Appeals pronounced the final sentence five and a half years after the incident.Footnote ⁷⁷ It goes without saying that this drawn-out process prevented a majority of occupational accident victims from ever considering initiating litigation. Even those who did and won would have to be prepared to subsist for years before seeing the slightest sign of compensation.

A final obstacle that workers faced when resorting to the courts in matters of occupational accidents was the highly confusing jurisdictional situation. Argentina, due to the country's federal system of government, had two parallel court systems: one federal and one provincial, which meant that every province operated with two different jurisdictions. The capital and the national territories were their own jurisdiction, but just like the provinces, they operated with the division between federal and common courts. In general, cases of occupational accidents belonged in the common civil courts, since the legal norms that applied were the dispositions of the Civil Code. This seemingly straightforward situation was significantly changed when, for example, the employer was either an agency of the state, a railroad company, or if the accident had occurred on board a ship.

As established by the Constitution's Article 100, cases where the state was party, the litigating parties belonged to different provinces, and which related to maritime jurisdiction, were all of federal jurisdiction. In fact, a large part of the occupational accident cases were tried under the federal jurisdiction. First, as a result of the rapid expansion of infrastructure and construction of public buildings at the turn of the century, as well as a result of the expansion of state institutions, the state was an important employer with a significant part of the country's workforce on its payrolls. Second, the railroads had a high incidence of accidents, many of which were serious and even fatal. Court cases involving railroad companies were generally considered to belong to the federal jurisdiction because of the inherently federal nature of this form of transportation. In addition, they were often state-owned, making the state party to the litigation. In other cases, the federal jurisdiction applied because the litigating parties belonged to different provinces.

Although the general rule was that occupational accidents involving railroad companies were of federal jurisdiction, the above-mentioned Alleva v. La Compañía Francesa de Los Ferrocarriles de la Provincia constitutes an exception. It was presented to the Provincial Court of the first instance in the city of Santa Fe and continued to the Court of Appeals. The issue of jurisdiction was contested in the very sentence. When the case arrived in the Court of Appeals, the railroad company claimed it should be dismissed and reinitiated in the federal court because it had been presented in the wrong jurisdiction. A dismissal would obviously have been to the benefit of the company, as the plaintiff most likely did not have the funds to start the judicial process all over again. The Provincial Court of Appeals – contrary to what was procedure in other cases involving railroad companies – determined that the provincial jurisdiction was appropriate since the lawsuit concerned damages and damages were a matter of general civil law. The judges therefore dismissed the company's objection and continued to uphold the ruling from the first instance, granting the plaintiff compensation.Footnote ⁷⁸

The contested jurisdiction in cases of occupational accidents involving railroad companies is further illustrated in Angel Lorenzo v. F.C. Sud.Footnote ⁷⁹ Called to rule on the appropriate jurisdiction for the case, the Capital's Federal Court of Appeals resolved on 3 February 1916 that it belonged to the federal jurisdiction in which it had been initiated. The decision was not unanimous, however. Judge José N. Matienzo dissented from the interpretation of the majority and sustained that, since the case concerned damages according to the principles of the Civil Code, and it did not invoke an article of the Constitution, a national law, or a treaty, the case was not under federal jurisdiction.Footnote ⁸⁰ The issue was also debated in Gerardo Bugallo v. F.C.S.,Footnote ⁸¹ wherein the same Court of Appeals Judge Tomás Arias joined Judge Matienzo in his interpretation that the case was not of federal jurisdiction. However, with the three other appeals court judges voting to the contrary, the federal jurisdiction was confirmed. Nevertheless, the court's division illustrates the contested nature of the issue.Footnote ⁸² These kinds of procedural vacillations and confusions constituted a serious obstacle for workers in their encounter with the courts. Without unequivocal precedent with regards to jurisdiction there was always a risk that a lawsuit could be dismissed if the judge decided it had been initiated in the wrong jurisdiction. The result of a dismissal was in practice the same as losing the case, since the worker was not in a position to afford two lawsuits.

An additional complication concerning jurisdiction presented itself if the accident victim was covered by an insurance policy, bought by the employer. In the case of an occupational accident, the insurance policy would cover the damage according to a fixed scale; i.e., the kind of injury suffered by the worker would determine the amount he was entitled to as compensation. The arrangement had several advantages for both workers and employers. An obvious benefit for the employer was to be freed from a possible lawsuit, as well as the potential outcome of having to face a significant expense if sentenced to compensate his employee. For the worker, the benefits were even more important. For one, he would automatically have the right to compensation in the case of an accident, completely regardless of any notion of fault. Thus, he was spared a lengthy, costly and complicated lawsuit with a highly uncertain outcome.

In 1907, the recently created National Labour Department sent a letter to the Argentine Industrial Union requesting information about private accident insurance in the city of Buenos Aires. According to the Argentine Industrial Union, there were 942 valid accident insurance policies, covering 51,869 workers in the capital in that year,Footnote ⁸³ leading the representatives of the Labour Department to state:

Nationwide, in 1910, the numbers reached 3,045 policies, covering a total of 102,964 workers.Footnote ⁸⁵ In 1912, the numbers were 5,900 and 162,775, respectively.Footnote ⁸⁶ Between 1907 and 1912, then, there was a steady increase in the number of private accident insurance policies, although the nation-wide numbers fluctuated and in 1914 returned to 1910 levels.Footnote ⁸⁷ In 1912, there were apparently 17,686 cases of occupational accident compensation paid by insurance companies in the whole of the Republic. In 1913, the number was 15,502, and in 1914, 11,838.Footnote ⁸⁸ These numbers make it evident that judges were not the only ones who attempted to offer solutions to the legal vacuum that existed in cases of occupational accidents; employers – and insurance companies – did too. However, it is likely that the two solutions related to each other. One may speculate that judges actively intended to give employers a powerful incentive to take out accident insurance for their employees when they handed out steep sums in accident compensation.

Although the point of accident insurance was to ensure the worker automatic compensation, insurance companies on various occasions refused to pay the premium stipulated in the policy contract, leaving the victim with no other option but to claim the right to compensation in the courts. When a worker was covered by an insurance policy, however, the procedure was different from regular lawsuits for damages. Since the Commercial Code regulated activities of insurance companies, claims had to be initiated in the commercial courts, rather than in the civil courts, despite the fact that cases over damages were regulated by dispositions of the Civil Code. An illustrative example of some of the confusions and difficulties this created for the workers is the case Catalina Ciarnelo de D'Onofrio v. Faustino Di Vaco,Footnote ⁸⁹ sentenced by Judge Juan B. Estrada in the capital's commercial court of the first instance on 24 December 1914. The plaintiff was the mother of Domingo D'Onofrio, who had died from an occupational accident on 4 March 1913 while working for Faustino Di Vaco. Di Vaco had insured all of his employees against occupational accidents with the insurance company The River Plate. When the victim's mother did not receive the compensation of 4,800 pesos stipulated by the insurance policy, she contacted the insurance company to make her claim. The insurance company, however, referred her to Di Vaco, who again referred her back to the insurance company as the party responsible for providing the compensation.

Frustrated in her attempts to obtain what was rightfully hers, she filed a lawsuit in the commercial court against the employer Di Vaco. Her claim, however, was rejected on the grounds that the employer Di Vaco could not be made responsible for the accident, since the insurance policy replaced his financial responsibility with that of the insurance company. The ruling was upheld in the court of appeals on 22 June 1915. In addition, the ruling established that in cases where workers were covered by accident insurance, and the provider failed to pay, then judicial action should be taken against the insurance company rather than the employer. This was confirmed in the following cases: Luoni y Delbosco v. La Industrial, Gelsomina Belardi v. La Industrial, Ana B. de Tranquilli v. La Rural, Margarita R. de Pérez y sus hijos menores v. Carols De Cillis y la Compañía La Nueva Zelandia.Footnote ⁹⁰ The courts thereby effectively stopped the insurance companies' attempts to dodge their financial obligations to the workers. Nevertheless, the confusion reigning over whom it was appropriate to sue for damages in these cases, as well as the separate commercial jurisdiction for cases involving insurance companies, constituted additional obstacles in the workers' encounter with the judicial system.

Last, but not least, one of the most serious obstacles for workers was the vacillation in jurisprudence and the wide and often eclectic range of laws, articles and dispositions that were invoked by the judges in their rulings. While in some cases judges attempted to establish the principle of the inverted burden of proof and the doctrine of contractual fault and occupational risk, these attempts did not constitute juridical precedent. There was no guarantee that one judge's interpretation would be followed by another's in a different ruling. As this discussion has shown, the only principle to have been established as something close to a precedent was the expanded notion of fault. All the other ways that judges tried to stretch and adapt the existing legal framework to accommodate the new social reality were highly contested and not unanimously accepted or applied.

The lack of a coherent judicial precedent created considerable insecurity for potential plaintiffs – for whom going to court was a costly and risky enterprise in itself – and surely led many to desist from legal action. Alejandro Unsain, one of the foremost experts on labour law at the time and a prominent personality in the National Labour Department, later summed up the situation succinctly in his book on the 1915 Occupational Accident Law: