MR. JUSTICE HARLAN delivered the opinion of the Court.
This case calls in question the propriety of a dismissal before trial of the first cause of action in a seaman's diversity complaint. Dismissal was on the ground that
The allegations of the complaint, which for present purposes must be taken as true, are in substance as follows: Petitioner, while employed as chief steward on one of the vessels of respondent, United Fruit Company, suffered a thyroid ailment, not attributable to any fault of the respondent, but with respect to which it concededly had a legal duty to provide him with maintenance and cure. (The Osceola, 189 U.S. 158.) Respondent insisted that petitioner undergo treatment at a United States Public Health Service Hospital. Petitioner, however, considering on the basis of past experience that such treatment would prove unsatisfactory and inadequate, notified respondent that he wished to be treated by a private physician who had agreed to take care of him for $350, which amount petitioner insisted would be payable by the respondent in fulfillment of its obligation for maintenance and cure.
Respondent, the complaint continues, declined to accede to this course, but agreed that if petitioner would enter a Public Health Service Hospital (where he would receive free care) it would assume responsibility for all consequences of improper or inadequate treatment. Relying on that undertaking, and being unable himself to defray the cost of private treatment, petitioner underwent treatment at a Public Health Service Hospital. The Public Health Service Hospital and private physician alluded to were both located in New York.
Finally, it is alleged that by reason of the improper treatment received at such hospital, petitioner suffered grievous unwonted bodily injury, for which the respondent, because of its undertaking, is liable to the petitioner for damages in the amount of $250,000.
At the outset, we think it clear that the lower courts were correct in regarding the sufficiency of this complaint as depending entirely upon its averments respecting respondent's alleged agreement with petitioner. Liability here certainly cannot be founded on principles of respondeat superior. Nor is there anything in the authorities relating to a shipowner's duty to provide maintenance and cure which suggests that respondent was obliged, as a matter of law, to honor petitioner's preference for private treatment, or that it was responsible for the quality of petitioner's treatment at other hands which, for all that appears, may reasonably have been assumed to be well trained and careful.
With respect to respondent's alleged agreed undertaking, as the case comes to us, petitioner, on the one hand, does not deny the contract's invalidity under the New
The boundaries of admiralty jurisdiction over contracts —as opposed to torts or crimes—being conceptual rather than spatial, have always been difficult to draw. Precedent and usage are helpful insofar as they exclude or include certain common types of contract: a contract to repair, Endner v. Greco, 3 F. 411, or to insure a ship, Insurance Co. v. Dunham, 11 Wall. 1, is maritime, but a contract to build a ship is not. People's Ferry Co. v. Beers, 20 How. 393. Without doubt a contract for hire either of a ship or of the sailors and officers to man her is within the admiralty jurisdiction. 1 Benedict, Admiralty, 366. A suit on a bond covering cargo on general average is governed by admiralty law, Cie Francaise de Navigation v. Bonnasse, 19 F.2d 777, while an agreement to pay damages for another's breach of a maritime charter is not, Pacific Surety Co. v. Leatham & Smith T. & W. Co., 151 F. 440. The closest analogy we have found to the case at hand is a contract for hospital services rendered an injured seaman in satisfaction of a shipowner's liability for maintenance and cure, which has been held to be a maritime
The Court of Appeals here held:
With respect to the learned judges below, we think that is too narrow a view of the matter. It can as well be argued that the alleged contract related to and stood in place of a duty created by and known only in admiralty as a kind of fringe benefit to the maritime contract of hire. See Cortes v. Baltimore Insular Line, 287 U.S. 367. The
No matter how skeptical one may be that such a burden of proof could be sustained, or that an indigent seaman would be likely to risk losing his rights to free treatment on the chance of sustaining that burden, since we should not exclude that possibility as a matter of law as the Court of Appeals apparently did, it must follow that the contract
This brings us, then, to the remaining, and what we believe is the controlling, question: whether the alleged contract, though maritime, is "maritime and local," Western Fuel Co. v. Garcia, 257 U.S. 233, 242, in the sense that the application of state law would not disturb the uniformity of maritime law, Southern Pacific Co. v. Jensen, 244 U.S. 205.
Although the doctrines of the uniformity and supremacy of the maritime law have been vigorously criticized— see Southern Pacific Co. v. Jensen, supra, at 218 (dissenting opinion); Standard Dredging Co. v. Murphy, 319 U.S. 306, 309—the qualifications and exceptions which this Court has built up to that imperative doctrine have not been considered notably more adequate. See Gilmore and Black, Admiralty, passim; Currie, Federalism and the Admiralty: "The Devil's Own Mess," 1960, The Supreme Court Review, 158; The Application of State Survival Statutes in Maritime Causes, 60 Col. L. Rev. 534. Perhaps the most often heard criticism of the supremacy doctrine
Thus, for instance, it blinks at reality to assert that because a longshoreman, living ashore and employed ashore by shoreside employers, performs seaman's work, the State with these contacts must lose all concern for the longshoreman's status and well-being. In allowing state wrongful death statutes, The Tungus v. Skovgaard, 358 U.S. 588; The Hamilton, 207 U.S. 398, and state survival of actions statutes, Just v. Chambers, 312 U.S. 383, respectively, to grant and to preserve a cause of action based ultimately on a wrong committed within the admiralty jurisdiction and defined by admiralty law, this Court has attempted an accommodation between a liability dependent primarily upon the breach of a maritime duty and state rules governing the extent of recovery for such breach. Since the chance of death foreclosing recovery is necessarily a fortuitous matter, and since the recovery afforded the disabled victim of an accident need be no less than that afforded to his family should he die, the intrusion of these state remedial systems need not
Altogether analogous reasoning was used by Mr. Justice Brandeis in Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, where it was held that a New York court could properly compel arbitration under the arbitration clause of a maritime contract. It was there reasoned that since such clauses are valid in admiralty and their breach gives rise to an action for damages, to compel arbitration is really to do no more than substitute a different and more effective remedy for that available in admiralty.
The line of cases descended from the early precedent of Cooley v. Board of Wardens, 12 How. 299, and most recently added to by Huron Portland Cement v. Detroit, 362 U.S. 440; see also Kelly v. Washington, 302 U.S. 1, exemplify but another variation of this process of accommodation. In the Huron case we allowed the City of Detroit to impose the requirements of its smoke control regulations on vessels coming to the city, even though they had measured up to federally imposed standards as to ship's boilers and equipment. There the matter was put thus:
In sum, were contracts of the kind alleged in this complaint known to be a normal phenomenon in maritime affairs, we think that there would be little room for argument in favor of allowing local law to control their validity. A different conclusion should not be reached either because such a contract may be thought to be a rarity, or because of any suspicion that this complaint may have been contrived to serve ulterior purposes. Cf. 275 F. 2d, at 501; 166 F. Supp., at 573-574, note 1, supra. Without remotely intimating any view upon the merits of petitioner's claim, we conclude that it was error to apply the New York Statute of Frauds to bar proof of the agreement alleged in the complaint.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE STEWART joins, dissenting.
Certainly no decision in the Court's history has been the progenitor of more lasting dissatisfaction and disharmony within a particular area of the law than Southern Pacific Co. v. Jensen, 244 U.S. 205. The mischief it has caused was due to the uncritical application of the loose doctrine of observing "the very uniformity
The Court today, relying as it does on Jensen, reinvigorates that "ill-starred decision." Davis v. Department of Labor, supra, at 259 (concurring opinion). The notion that if such a limited and essentially local transaction as the contract here in issue were allowed to be governed by a local statute of frauds it would "disturb the uniformity of maritime law" is, I respectfully submit, too abstract and doctrinaire a view of the true demands of maritime law. I would affirm the judgment below.
MR. JUSTICE WHITTAKER, dissenting.
Like the Court of Appeals, 275 F.2d 500, I think the oral contract here claimed by petitioner was not a maritime but a New York contract and barred by its statute of frauds. New York Personal Property Law, § 31, par. 2. I therefore dissent.
"Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the person to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking;
"2. Is a special promise to answer for the debt, default or miscarriage of another person."
". . . [This] failure to stress force of custom, in maritime matters, is found in Union Fish Co. v. Erickson [supra], where with obvious correctness the California statute of frauds was not permitted to defeat a shipmaster's libel for wrongful discharge from an engagement for more than one year. . . . [T]he ground of decision should have been the simple one that such engagements, orally made, were as old as the history of marine customs, had passed into the maritime law of the United States, and would be recognized and enforced by the courts of the nation,—so that what California said on the subject (if anything) was merely immaterial." Hough, Admiralty Jurisdiction— Of Late Years, 37 Harv. L. Rev. 529, at 537.
Writing of a different sort of contract, an equally distinguished British admiralty judge has said that ". . . it is common practice for commercial men to assume very extensive financial obligations on the nod of a head or the initialing of a slip, and many binding chartering engagements are no doubt daily concluded in an informal manner. . . ." Soc. Portuguesa de Navios Tanques, Ltd. v. Hvalfslsk Polaris A/S,  1 Lloyd's List Reports 73, 74 (per McNair, J.), in which opinion he is confirmed by Kent, 3 Commentaries 159-160 (1828 ed.), and the French authority, Pothier, Maritime Contracts 10 (Cushing trans.). True, a seaman's contract of hire, his articles, have long been required to be in writing by statutes of the various maritime nations, among them one of the first statutes passed by our Congress, 1 Stat. 131 (1790). Compare 2 Geo. II, c. 36 (1729). But this rule was clearly instituted for the protection of the seaman, Curtis, Merchant Seamen 37, and in no way assumes the invalidity of such contracts in the absence of writing. In our law the seaman who ships without articles can recover the highest wages paid at the port of embarcation, as well as subjecting the master who took him on board to penalties, 46 U. S. C. §§ 564, 578; Norris, The Law of Seamen, §§ 91, 119. An Ordonnance of Louis XIV declares that if the seaman's contract is not in writing, the seaman's oath as to its provisions must be credited, Pothier, supra, at 100, while Lord Tenterden, Merchant Ships and Seamen 476, expressly states that an oral contract of hire is not invalid but only results in a penalty against the master. The Union Fish case, supra, no more than exemplifies the enforceability of an oral maritime contract of hire.