FRANK, Circuit Judge.
Appellant was employed as a seaman on the S.S. "Zarembo", owned and operated by defendant American-West African Line, Inc., from February 13, 1940, to May 15, 1940. Subsequently, from June 6, 1940, to June 20, 1940, he was similarly employed on the SS "Mormacyork", owned and operated by defendant-appellee Moore-McCormack Lines, Inc. He seeks damages in separate causes of action against each defendant for the development of tuberculosis, or the aggravation of existing tuberculosis, by reason of each defendant's negligence in supplying improper sleeping quarters on board its vessel. In a third cause of action, he alleges joint negligence by the defendants. In all three causes of action he asks maintenance and cure, besides damages for negligence.
Both defendants moved for summary judgment on the ground that the claims had been released by plaintiff in a release to one of them, the Moore-McCormack Lines. This motion was granted as to that one defendant, and Hume appeals. According to appellee's affidavits, the circumstances of the release were these: On June 21, 1940, Hume told its claim adjuster that he had burned his hand the previous night and had been treated at a hospital. The adjuster sent him to another hospital, and twice advanced him $15 maintenance. On July 15th Hume told another adjuster for the company that he wanted $250 in full settlement of any claims he had against the company. He was told to see the company doctor and to obtain a discharge from the hospital; in the meantime, he was given $15 more for maintenance.
On July 23rd, Hume presented his hospital discharge, which read "Discharged — Fit for duty July 15, 1940." The adjuster examined the company doctor's report and, after considerable discussion, arrived at a settlement of $150, which included the $45 previously advanced. For the $105, Hume was required to sign a release substantially identical with that set out in our opinion
"Release of All Rights
"By signing this you give up Every right you have."
The release specified in typewriting that Hume released his claims as to "Burn 3rd degree of right hand and fingers; burn 1st degree of forehead, face, left forearm June 20, 1940," and included a printed release "even as respects injuries, illnesses, rights and claims not mentioned herein or not known to me." There are several other references to injuries which are unknown or of unknown extent. Finally, in answer to the question (printed in red) "What is this paper which you are signing?" Hume wrote "Release of everything". Hume was told, and he acknowledged that he understood, that he was releasing the company of every claim he had against it, and that "he was signing his life away."
At the time he signed the release, neither Hume nor appellee knew that he was suffering from tuberculosis. The District Court held that the release was binding, nevertheless, as to the unknown injury, having been made by Hume as "the result of full consideration, and understanding of his act in dealing at arm's length with his employer's representatives," since appellant's affidavits suggested no defense to the release except that of inadequate consideration.
The legal effect of seamen's releases has been before us recently on two important occasions; our decision here turns on the application of principles there enunciated. In Bonici v. Standard Oil Co., 2 Cir., 103 Fed.2d 437, 438, 1939, a seaman, while at work on a vessel at sea, injured his shoulder. After a week of hospital treatment, he received from his employer, the shipowner, $89.45, which was somewhat in excess of the cost of that treatment, and executed and delivered and signed a general release of all claims which he had or might have against his employer. Subsequently he had further trouble with his shoulder necessitating further hospital treatment for several months. He sued for its cost. Respondent, the shipowner, was not negligent and the vessel was not unseaworthy. The release was substantially like that before us in the instant case; it was, we said, "made as extensive as human and legal ingenuity could make it". The seaman was a person of some education, able to read and write, and knew that he was signing a general release; he did so because the doctor for the shipowner had told him that there was nothing the matter with his arm and that he would be ready to work in a few days. We held that while a seaman's release is not always inoperative, yet, it must be jealously scrutinized to see that the seaman, as one of the "wards of the admiralty", has not been overreached, and that, on the facts, a judgment in the seaman's favor, covering the cost of his additional treatment, incurred after the release, must be affirmed. In Sitchon v. American Export Lines, 2 Cir., 113 F.2d 830, 1940, the facts were substantially the same as in the Bonici case but with the important difference that the seaman, before signing the release, had had the independent advice of his own physician and his own lawyer; because of those differentiating facts, which we stressed, we affirmed a summary judgment for the defendant. We are now presented with the question whether the doctrine of the Bonici case, supra, should be applied here.
That doctrine is founded on no statute, and yet is strikingly at variance with views which have long prevailed at common law. For many decades the common-law courts have held that (absent fraud, coercion or other special circumstances) a release given, for consideration, by an adult employee to his employer must be enforced against the employee strictly according to its terms, no matter how harsh or unusual, because those terms were the result of a bargain between persons regarded by the court as equals; each party to the bargain, it was said, acted with his eyes open. Most 19th century judges would have thought that to hold otherwise would be to interfere, inconceivably, with liberty of contract. But, in that same period, the admiralty courts utilized a different rule; they guarded, with special solicitude, the rights of seamen in such dealings with their employers. In this country, the same judges who, sitting one day at common law, applied a strict doctrine to employees in general, when, the next day, they sat in admiralty, applied a more lenient doctrine to workers at sea, calling them the "wards of admiralty"; see e.g. Harden v. Gordon, Fed. Cas. No. 6,047, 1823; Brown v. Lull, Fed. Cas. No. 2,018, 1836; The David Pratt, Fed.Cas. No. 3,597, 1839; Robertson v.
At one time there had been no such marked divergence between the common law and admiralty rules as to employees. In what we call the medieval period, the common law did not apply to workers, generally, any doctrine of "liberty of contract"; it may roughly be said — but with distinct need for qualifications
Slowly, however, there evolved a belief that, if men were let alone, each to follow his own selfish aims, the social welfare would be best promoted, a belief in the supreme desirability of the freedom of the individual, in all walks of life, from all restraints in matters of industry and trade. This belief had its beginnings at least as early as the 17th century
There was to be a swing, later in the 20th century, away from this excessive emphasis on liberty of contract;
A different answer was given to seamen. In The Juliana, 2 Dod. (1822) 504, Lord Stowell remarked that it would not do to say to a seaman "that it is all his own doing, and that he is thought fit to bring it upon himself by his own indiscretion in signing
Accordingly, when we ask why, during the 19th century, in the high noon of laissez-faire, those employed as sailors were accorded unique treatment — why judges sitting in admiralty, and without benefit of
Yet recent comments of the Supreme Court tend strongly to undermine that explanation. For, in American Foundries v. Tri-City Council, 257 U.S. 184, 209, 42 S.Ct. 72, 78, 66 L.Ed. 189, 27 A.L.R. 360, 1927, Chief Justice Taft (after stating that labor unions in many industries "were organized out of the necessities of the situation"), said: "A single employee was helpless in dealing with an employer. He was dependent ordinarily on his daily wage for the maintenance of himself and family. If the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and to resist arbitrary and unfair treatment."
Since, as Mr. Justice Holmes said, "it is revolting to have no better reason for a rule than that so it was laid down long ago", and it "is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past",
But that thesis stammers when it confronts admiralty's recognition of status or "relational" obligations. For the streams of influence which led to that attitude in admiralty had sources unrelated to feudal institutions. The ancient sea laws, adopted and adapted by the Admiralty Court, were not of English or feudal origin. English and American admiralty judges freely quoted, and incorporated into their domestic law, provisions of maritime codes
We must not, in seeking an answer to our question, hope to find an altogether unbroken connection with the past; it is a commonplace that, in the growth of legal systems, new bottles are seldom made for new wine; old formulations, with slight modifications, serve new purposes
With that in mind, we should note an intensely practical influence (especially meaningful for us today) sharply manifesting itself in the early 19th century admiralty decisions relating to seamen, which may give us the answer to our question: there is an explicit recognition of the importance of sea-power as an agency of commerce and of national defense. See Harden v. Gordon, supra; The David Pratt, supra; The Juliana, supra. National defense vitally affected the nation as a whole. Such matters were not to be left, a la laissez-faire, to any mere invisible hand guiding the ways of striving individuals bent on purely personal gain. The hand that guided national defense must be visible and forceful; the nation's very existence being at stake, there was no room, when it came to sea-power, for the minimalist dogma that the best government is invariably that which governs the least. The Juliana was decided by Lord Stowel, seven years after Waterloo, when memories of Napoleon's threatened invasion of England, his "continental system"
It would be absurd, of course, even to suggest that, in the prior course of English and American history, there had been no lively appreciation of the worth of sea power: Legend ascribes the foundation of the English navy to King Alfred; William the Conqueror knew what he was about when he established the Cinque Ports; Edward III followed his father in proclaiming himself "Sovereign of the Sea"; Henry VIII created a permanent royal navy; in order to revitalize a trade helpful in time of war, the fishing industry — weakened by the Reformation which did away with the religious obligation to eat fish — Edward VI established "Political Lent" by a statute requiring fish, instead of flesh, to be eaten on Fridays, Saturdays, Ember Days and during Lent;
For all that, this point remains: One of the impulses which apparently contributed to the survival of the admiralty doctrine as to seamen was vigorously reenforced by early 19th century events affecting both England and this country. And that stimulus still has vitality. See Calmar S. S. Corp. v. Taylor, 303 U.S. 525, 528, 58 S.Ct. 651, 653, 82 L.Ed. 993, where the court (citing Harden v. Gordon) speaks of "the maintenance of a merchant marine for the commercial service and maritime defense of the nation by inducing men to accept employment in an arduous and perilous service."
Our historical survey is necessarily sketchy; students of history may — and we hope they will — some day give us a more elaborate and precise story. With particular reference to the background of the doctrine we have been discussing, we have in mind, too, that, as more and more historians have come to recognize, history is not an exact science but more in the nature of an art, and that, aside from the inherent subjective factor involved in the selection of "significant" facts, it lacks exactitude for a variety of reasons including this: Many ideas that, in a past period, have profoundly shaped men's conduct often find no expression which survives in documentary form; for the dominant ideas of any period are frequently so taken for granted that the men of that period may be little aware of them, and, even if such an awareness exists, those ideas seem so "self-evident" that no one bothers to write them down
At any rate it is permissible to say that the promotion of national defense was one of the important reasons — and one
The legislative policy has been to extend that unique protection; in order to effectuate the Congressional intention, statutes of that type have been liberally construed to favor the seaman (Bainbridge v. Merchants' & Miners' Transp. Co., 287 U.S. 278, 53 S.Ct. 159, 77 L.Ed. 302), who has been called the "ward of the legislature"
This court has consistently followed the rule as to protection of seamen, as interpreted in our decisions above cited. We shall do so here. On the record now before us, the instant case lacks the differentiating circumstances we found in Sitchon v. American Lines, supra, and sufficiently resembles the facts in Bonici v. Standard Oil Co., supra, so that it should not have been decided against appellant on the facts as presented on the motion for summary judgment. Here the seaman had no lawyer nor other competent adviser representing him when he signed the release. There should be a trial of the issues, on evidence, at which the burden will be on the appellee to sustain the release "as fairly made with and fully comprehended by the seaman." (Harmon v. United States, 5 Cir., 59 F.2d 372, 373; Bonici v. Standard Oil Co., supra); in that connection, it will be significant, particularly because of the meager consideration, whether appellant had any knowledge or intimation, when he signed the release, that he was suffering, incipiently or otherwise, from tuberculosis.
The summary judgment for appellee, and the order dismissing the complaint as to it, are reversed.
Holdsworth expresses some regret that subsequently there was a wholesale abandonment of the Elizabethan program; loc. cit. IV 379, 386, 387; X (1938) 23, 24; XI (1938) 499-501; II, 3d Ed. 1923; 466; VI (1924) 349, 359. It is to be noted, however, that Holdsworth intimates his own distrust of democracy; see X (1938) 23, 723, 724.
Bentham, of course, was also an influence, but his views did not always pull in the same direction; Dicey, Law and Opinion in England During the Nineteenth Century (2d ed. 1914), xxx note 1, 146-158, 190-205, 303-310; see especially, 308, note 1 for Spencer's attack on utilitarianism.
In Lochner v. People of New York, supra, Holmes, J., dissenting, said, "The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics."
In England, the swing away from complete laissez faire began earlier than in this country; see Dicey, loc. cit., xxx, 64-69, 216 ff., 264 ff., 415ff., 310. Dr. Arnold, in 1838, called laissez-faire "the falsest maxim which ever pandered to human selfishness under the name of political wisdom"; Carlyle in 1839, said it was "false, heretical, and damnable, if ever aught was".
In The David Pratt, supra, the court said: "Seamen * * * are usually dependent on their wages for present support, and if they are withheld they ordinarily find themselves in a state of entire destitution, not only without present means to provide for their immediate and most pressing necessities, but without credit. If their employers choose to impose upon them hard terms, they are obliged to take what is offered them to meet their immediate wants or forthwith to re-ship on another vessel. They are thus placed too much in the power of the owners to be able to negotiate with them on equal terms"
On the other hand, it will not do to conceal the existence of status or relational obligations by assimilating them to contractual obligations, and then further bemuse ourselves by translating "as if" into Latin and talking of "quasi contractual" duties. As to the anesthetizing effect on lawyers of translating English (or American) into Latin, see Smith, The Use of Maxims in Jurisprudence, 9 Harv.L.Rev. (1895) 13, 25.
It may well be that there was another factor: In Coke's day the incomes of the common law judges were largely derived from fees and, therefore, they desired a large volume of litigation in their courts; see Usher, Rise and Fall of the High Commission (1913), 55; cf. Holdsworth, loc. cit. I, 246, 254, 255, 259, 261, 424, 425; Campbell, Lives of the Chancellors (1845), II, 184-185; Taney's dissenting opinion in Taylor v. Carryl, 20 How. 583, 612-617, 15 L.Ed 1028, 1857; Fischer v. Carey, 173 Cal. 185, 159 P. 577, L.R.A. 1917A, 1100, 1105; Goebel, Cases and Materials on the Development of Legal Institutions (1937), 206, 221. As to Coke's avarice and intense love of money, see Lord Birkenhead, Fourteen English Judges, 27, 28, 29, 50; as to the "love of gain" and "greed" as specifically operative in Coke's attack on admiralty, see Benedict, Admiralty, 5th Ed. 1925, I, 781, 756.
Hughes, Admiralty, 2d Ed. 1920, 3, makes an interesting (but perhaps unfounded) suggestion that Coke's "persecution (sic) of Raleigh, the great navigator, was the personification of his hatred of the new order of things", i.e., the development of maritime enterprise under Elizabeth. That Coke used "unscrupulous" methods in his attack on the Admiralty Court, see Holdsworth, loc. cit. I (3rd Ed. 1922) 553ff.