Peterson, a seaman, brought an action at law in a Superior Court of Washington against his employer, the Pacific Steamship Co., the owner of a domestic merchant vessel on which he was serving, to recover damages for personal injuries suffered at sea on a voyage between the ports of Puget Sound and California.
The complaint charged that the injury resulted from the negligence of the mate of the vessel — there being no charge that the vessel was unseaworthy — and based the right of action expressly on § 20 of the Seamen's Act of 1915,
The Company, in its answer, not only denied the averments of negligence, but alleged, generally, in Par. 2,
The court, on the plaintiff's motion, struck from the answer the allegations in Par. 2; and also sustained a
By the general maritime law of the United States prior to the Merchant Marine Act, a vessel and her owner were liable, in case a seaman fell sick, or was wounded in the service of the ship, to the extent of his maintenance and cure, whether the injuries were received by negligence or accident, and of his wages, at least so long as the voyage was continued, and were liable to an indemnity for injuries received by a seaman in consequence of the unseaworthiness of the ship and her appliances; but a seaman was not allowed to recover an indemnity for injuries sustained through the negligence of the master or any member of the crew. The Osceola, 189 U.S. 158, 175; Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 380; Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 258.
By § 33 of the Merchant Marine Act, as heretofore construed, the prior maritime law of the United States was modified by giving to seamen injured through negligence the rights given to railway employees by the Employers Liability Act of 1908 and its amendments, and permitting these new substantive rights to be asserted and enforced in actions in personam against the employers in federal or state courts administering common-law remedies, with the right of trial by jury, or in suits in admiralty in courts administering maritime remedies, without trial by
The defendant contends, on the one hand, that this statute gives an injured seaman the new right of action for damages merely as an alternative right to those provided by the old maritime rules, which he may enforce "at his election," thereby requiring him to elect whether he will proceed for the recovery of maintenance, cure, wages, and indemnity under the old maritime rules, or for the recovery of damages under the new rule; and hence that if he demands and receives from the employer maintenance, cure and wages under the old maritime rules, he is bound by that as an election and cannot thereafter maintain an action for damages under the statute.
The plaintiff contends, on the other hand, that the words "at his election" as used in the statute, refer, at the most, to an election between an action for compensatory damages, on the ground of negligence, under the new rule, and the inconsistent action for indemnity or compensatory damages on the ground of unseaworthiness, under the old maritime rules; and not to an election between an action for damages under the new rule and the consistent and cumulative remedy for maintenance, cure and wages under the old rules.
We pass without determination the question whether the affirmative allegations of fact in the answer, as distinguished from the conclusions of the pleader, show that the plaintiff had in fact demanded or received maintenance and cure from the defendant, or had merely acquiesced in being taken by the defendant to the Marine Hospital and there receiving from the United States, without expense to himself or to the defendant, maintenance and treatment as a disabled seaman; and we proceed to the determination of the sole question argued by counsel,
It was stated, in general terms, in Panama R.R. Co. v. Johnson, supra, at p. 388, that the statute "extends to injured seamen a right to invoke, at their election, either the relief accorded by the old rules or that provided by the new rules. The election is between alternatives accorded by the maritime law as modified . . ." And see Engel v. Davenport, supra, at p. 36. But this general statement does not define the scope of the election or the precise alternative accorded — a question which was not involved or discussed in either of these cases. And while an incidental statement in the Engel case, at p. 36, if taken broadly, might well be understood to mean that the right to recover compensatory damages under the new rule was granted as an alternative to the allowances covered by the old rules, including maintenance, cure and wages, this was at the most a general expression respecting a particular as to which no question was raised — no allowance for maintenance, cure and wages being there involved — which ought not to control the judgment in a subsequent suit when the very point is presented for decision, Cohens v. Virginia, 6 Wheat. 264, 399, Downes v. Bidwell, 182 U.S. 244, 258, Weyerhaeuser v. Hoyt, 219 U.S. 380, 394, Bailey v. Baker Ice Machine Co., 239 U.S. 268, 272, or to prevent the determination as an original question of the proper construction of the statute in that particular. See United States v. Corbett, 215 U.S. 233, 239.
What then were the "alternatives" accorded to an injured seaman by the maritime law, as modified, between which the statute grants him an election? Plainly, we think, the right under the new rule to compensatory damages
The right to recover compensatory damages under the new rule for injuries caused by negligence is, however, an alternative of the right to recover indemnity under the old rules on the ground that the injuries were occasioned by unseaworthiness; and it is between these two inconsistent remedies for an injury, both grounded on tort, that we think an election is to be made under the maritime law as modified by the statute. Unseaworthiness, as is well understood, embraces certain species of negligence; while the statute includes several additional species not embraced in that term. But, whether or not the seaman's injuries were occasioned by the unseaworthiness of the vessel or by the negligence of the master or members of the crew, or both combined, there is but a single wrongful invasion of his primary right of bodily safety and but a single legal wrong, Baltimore S.S. Co. v. Phillips, supra, 321, for which he is entitled to but one indemnity by way of compensatory damages.
Considered in the light of these several remedies and the extent of the inconsistency between them, we agree with the view expressed by the Supreme Court of Washington that the statute was not intended to restrict in any way the long-established right of a seaman to maintenance,
It results that there was no error in the rulings as to the affirmative defense interposed by the defendant. And the judgment is
MR. JUSTICE HOLMES concurs in the result.