1. Injury suffered by a seaman in the course of his employment,
as the result of failure of the master of the ship to furnish him
care or cure when stricken by pneumonia, is a "personal injury"
from
Page 287 U. S. 368
"negligence," within the purview of § 33 of the Merchant Marine
Act, supplemented by the Federal Employers' Liability Act, for
which that section gives a right of action by the seaman, if
living, or by his personal representative if the injury result in
death. Pp.
287 U. S.
371-373.
2. The fact that the duty of master and of shipowner to furnish
care and cure to a seaman in case of illness is a duty arising from
and attached to the contractual relation of employment, for the
breach of which the seaman has, under the general maritime law, a
cause of action
ex contractu, is not inconsistent with
allowing him also, at his election, a statutory action
ex
delicto when neglect of the duty results in impairment of body
or mind; still less inconsistent with allowing such an action to
his personal representative (who could not otherwise sue) if the
injury causes death. P.
287 U. S.
372.
3 After the voyage has begun, with care and cure cut off from an
ill seaman unless furnished by officers and crew, withdrawal from
the relation from which springs the duty is impossible, and
abandonment is a tort. Pp.
287 U. S. 374.
4. Section 33 of the Merchant Marine Act should be liberally
construed in aid of its purpose to protect seamen and those
dependent on their earnings. P.
287 U. S.
375.
5. When a duty imposed by law for the benefit of the seaman and
for the promotion of his health or safety has been neglected, to
the damage of his person, his remedy under § 33 of the Merchant
Marine Act is the same as though a like duty had been imposed by
law upon carriers by rail. Pp.
287 U. S.
376-378.
52 F.2d 22 reversed.
Certiorari, 285 U.S. 535, to review the reversal of a judgment
for damages, recovered against the steamship company by the
petitioner, as administrator of the estate of a deceased
seaman.
Page 287 U. S. 370
MR. JUSTICE CARDOZO delivered the opinion of the Court.
Santiago, a seaman, shipped on the respondent's vessel for a
voyage from the harbor of New York to Boca Grande, Florida, and
return. On the home voyage, he fell ill of pneumonia and died in a
hospital after reaching the home port. His administrator, the
petitioner, sued to recover damages for his death, which was
charged to have been caused by the failure of the master of the
ship to give him proper care. In the District Court, there was a
judgment for the petitioner, which was reversed upon appeal. The
reversal was on the ground that the seaman's right of action for
negligent care or cure was ended by his death, and did not accrue
to the administrator for the use of next of kin, 52 F.2d 22. The
case is here on certiorari.
By the general maritime law, a seaman is without a remedy
against the ship or her owners for injuries to his person, suffered
in the line of service, with two exceptions
Page 287 U. S. 371
only. A remedy is his if the injury has been suffered as a
consequence of the unseaworthiness of the ship or a defect in her
equipment.
The Osceola, 189 U. S. 158;
Chelentis v. Luckenbach S.S. Co., 247 U.
S. 372;
Pacific S.S. Co. v. Peterson,
278 U. S. 130,
278 U. S. 134.
A remedy is his also if the injury has been suffered through breach
of the duty to provide him with "maintenance and cure." The duty to
make such provision is imposed by the law itself as one annexed to
the employment.
The Osceola, supra. Contractual it is in
the sense that it has its source in a relation which is contractual
in origin, but, given the relation, no agreement is competent to
abrogate the incident. If the failure to give maintenance or cure
has caused or aggravated an illness, the seaman has his right of
action for the injury thus done to him, the recovery in such
circumstances including not only necessary expenses, but also
compensation for the hurt.
The Iroquois, 194 U.
S. 240. On the other hand, the remedy for the injury
ends with his death in the absence of a statute continuing it or
giving it to another for the use of wife or kin.
Western Fuel
Co. v. Garcia, 257 U. S. 233,
257 U. S. 240;
Lindgren v. United States, 281 U. S.
38,
281 U. S. 47.
Death is a composer of strife by the general law of the sea as it
was for many centuries by the common law of the land.
The question then is to what extent the ancient rule has been
changed by modern statute. Section 33 of the Merchant Marine Act of
1920, commonly known as the Jones Act [
Footnote 1] (41 Stat. 1007, § 33, 46 U.S.Code, § 688),
Page 287 U. S. 372
gives a cause of action to the seaman who has suffered personal
injury through the negligence of his employer. For death resulting
from such injury, it gives a cause of action to his personal
representative. We are to determine whether death resulting from
the negligent omission to furnish care or cure is death from
"personal injury" within the meaning of the statute.
The argument is pressed upon us that the care owing to a seaman
disabled while in service is an implied term of his contract, and
that the statute cannot have had in view the breach of a duty
contractual in origin for which he had already a sufficient remedy
under existing rules of law.
We think the origin of the duty is consistent with a remedy in
tort, since the wrong, if a violation of a contract, is also
something more. The duty, as already pointed out, is one annexed by
law to a relation, and annexed as an inseparable incident without
heed to any expression of the will of the contracting parties. For
breach of a duty thus imposed, the remedy upon the contract does
not exclude an alternative remedy built upon the tort. The
passenger in a public conveyance who has been injured by the
negligence of the carrier may sue for breach of contract if he
will, but also, at his election, in trespass on the case.
Jackson v. Old Colony Street Ry., 206 Mass. 477, 485, 92
N.E. 725;
Busch v. Interborough R.T. Co., 187 N.Y. 388,
391, 80 N.E. 197;
Rich v. New York Central & H. R.
Co., 87 N.Y. 382, 390;
Neil v. Flynn Lumber Co., 71
W.Va. 708, 77 S.E.
Page 287 U. S. 373
324.
Cf. the cases cited in Pollock on Torts (13th
ed.), p. 557
et seq. The employee of an interstate
carrier, injured through the omission to furnish him with safe and
suitable appliances, may have a remedy under the Federal Employers'
Liability Act § 1 (45 U.S.Code § 51), or at times under the Safety
Appliance Act §§ 1 to 6 (45 U.S.Code, §§ 1 to 6), though the
omission would not be actionable in the absence of a contract
creating the employment. So, in the case at hand, the proper
subject of inquiry is not the quality of the relation that gives
birth to the duty, but the quality of the duty that is born of the
relation. If the wrong is of such a nature as to bring it by fair
intendment within the category of a "personal injury" that has been
caused by the "negligence" of the master, it is not put beyond the
statute because it may appropriately be placed in another category
also.
We are thus brought to the inquiry whether "negligence" and
"personal injury" are terms fittingly applied to the acts charged
to the respondent. The case is helped by illustrations. Let us
suppose the case of a seaman who is starved during the voyage in
disregard of the duty of maintenance, with the result that his
health is permanently impaired. There is little doubt that, in the
common speech of men, he would be said to have suffered a personal
injury, just as much as a child in an orphan's home who had been
wronged in the same way.
Cf. Queen v. Instan, [1895] 1
Q.B. 450. Let us suppose the case of a seaman slightly wounded
through his own fault, but suffering grievous hurt thereafter as a
consequence of septic poisoning brought about by lack of treatment.
The common speech of men would give a like description to the wrong
that he had suffered. The failure to provide maintenance or cure
may be a personal injury or something else, according to the
consequences. If the seaman has been able to procure his
maintenance and cure out of his own or his friends' money, his
remedy
Page 287 U. S. 374
is for the outlay, but personal injury there is none. If the
default of the vessel and its officers has impaired his bodily or
mental health, the damage to mind or body is nonetheless a personal
injury because he may be free at his election to plead it in a
different count.
Cf. Pacific S.S. Co. v. Peterson, supra,
pp.
287 U. S.
137-138. Nor is liability escaped by appeal to the
distinction between acts of omission, on the one hand, and those of
commission, on the other.
Moch Co. v. Renesselaer Water
Co., 247 N.Y. 160, 167-168, 159 N.E. 896. A division is
sometimes drawn between the termination of a relation at a time
when it is still executory or future and its termination when
performance has gone forward to such a point that abandonment of
duty becomes an active agency of harm.
Moch Co. v. Renesselaer
Co., supra. The respondent is not helped though its treatment
of the seaman be subjected to that test. Here, performance was
begun when the vessel started on her voyage with Santiago aboard
and with care and cure cut off from him unless furnished by
officers or crew. From that time forth, withdrawal was impossible,
and abandonment a tort. Given a relation involving in its existence
a duty of care irrespective of a contract, a tort may result as
well from acts of omission as of commission in the fulfillment of
the duty thus recognized by law.
Moch Co. v. Renesselaer Water
Co., supra, citing Pollock on Torts (13th ed.) p. 567;
Kelley v. Metropolitan Ry. Co., [1895] 1 Q.B. 944.
We are told, however, that the personal injury from negligence
covered by the statute must be given a narrow content, excluding
starvation and malpractice, because, for starvation and
malpractice, the seaman without an enabling act had a sufficient
remedy before. The seaman may indeed have had such a remedy, but
his personal representative had none if the wrong resulted in his
death. While the seaman was still alive, his cause of action for
personal injury created by the statute may have
Page 287 U. S. 375
overlapped his cause of action for breach of the maritime duty
of maintenance and cure, just as it may have overlapped his cause
of action for injury caused through an unseaworthy ship.
Pacific S.S. Co. v. Peterson, supra, p.
278 U. S. 138;
Baltimore S.S. Co. v. Phillips, 274 U.
S. 316,
274 U. S. 321,
274 U. S. 324.
In such circumstances, it was his privilege, insofar as the causes
of action covered the same ground, to sue indifferently on any one
of them. The overlapping is no reason for denying to the words of
the statute the breadth of meaning and operation that would
normally belong to them -- at all events when a consequence of the
denial is to withhold any remedy whatever from dependent next of
kin. A double remedy during life is not without a rational office
if the effect of the duplication is to carry the remedy forward for
others after death. The argument for the respondent imputes to the
lawmakers a subtlety of discrimination which they would probably
disclaim. There was to be a remedy for the personal representative
if the seaman was killed by the negligent omission to place a cover
over a hatchway or to keep the rigging safe and sound. There was to
be none, we are told, if he was killed for lack of food or
medicine, though the one duty equally with the other was attached
by law to the relation. This Court has held that the act is to be
liberally construed in aid of its beneficent purpose to give
protection to the seaman and to those dependent on his earnings.
Jamison v. Encarnacion, 281 U. S. 635. An
assault by one member of the crew upon another with a view to
hurrying up the work has been brought within the category of
"negligence," and hence, in a suit against the owner, becomes an
actionable wrong.
Jamison v. Encarnacion, supra; Alpha S.S. Co.
v. Cain, 281 U. S. 642.
Approaching the decision of this case in a like spirit of
liberality, we put aside many of the refinements of construction
that a different spirit might approve.
Page 287 U. S. 376
The failure to furnish cure is a personal injury actionable at
the suit of the seaman during life, and at the suit of his personal
representative now that he is dead.
Cf. U.S. Shipping Board
E.F. Corp. v. Greenwald, 16 F.2d 948, 949.
We are warned, however, that, in giving this content to the
statute, we are omitting to give heed to its reference to the act
regulating the remedies of railroad employees, and are ignoring the
standards of duty thus carried over and adopted. The Employers'
Liability Act for the protection of the employees of common
carriers by railroad gives a remedy to such employees "for . . .
injury or death resulting in whole or in part from the negligence
of any of the officers, agents, or employees of such carrier," or
by reason of any negligent defect in its roadbed or equipment. 35
Stat. 65, § 1, 45 U.S.Code, § 51. True indeed it is that a common
carrier by land is not subject to a duty, except in special
circumstances, to give maintenance or cure to sick or disabled
employees. We say except in special circumstances, for it would be
hazardous to assert that such a duty may not rest upon the
representative of a railroad as well as upon the master of a ship
when the servant, exposed by the conditions of the work to
extraordinary risks, is helpless altogether unless relief is given
on the spot.
Ohio & Mississippi Ry. Co. v. Early, 141
Ind. 73, 81, 40 N.E. 257;
Shaw v. Chicago, M. & St.P. Ry.
Co., 103 Minn. 8, 114 N.W. 85;
Raasch v. Elite Laundry
Co., 98 Minn. 357, 108 N.W. 477;
Hunicke v. Meramec Quarry
Co., 262 Mo. 560, 581, 597, 172 S.W. 43. [
Footnote 2] The result, however, will not be
different though we assume that the servant of a railroad company,
if he has been injured without fault, may never call for help as
due to him of right, however pressing the emergency and
imperative
Page 287 U. S. 377
the need. We do not read the act for the relief of seamen as
expressing the will of Congress that only the same defaults
imposing liability upon carriers by rail shall impose liability
upon carriers by water. The conditions at sea differ widely from
those on land, and the diversity of conditions breeds diversity of
duties. This Court has said that "the ancient characterization of
seamen as
wards of admiralty' is even more accurate now than it
was formerly." Robertson v. Baldwin, 165 U.
S. 275, 165 U. S. 287.
Another court has said:
"The master's authority is quite despotic, and sometimes roughly
exercised, and the conveniences of a ship out upon the ocean are
necessarily narrow and limited."
Scarff v. Metcalf, 107 N.Y. 211, 215, 13 N.E. 796, 797.
Out of this relation of dependence and submission there emerges for
the stronger party a corresponding standard or obligation of
fostering protection. There is doubt, and that substantial, whether
the administrator of a railroad engineer who by misadventure has
fallen from his locomotive while the train is on a bridge has a
cause of action under the Federal Employers' Liability Act because
of the failure of the crew of the train to come to the rescue of
their comrade.
Harris v. Penn. R. Co., 50 F.2d 866, 868.
[
Footnote 3] There is little
doubt that rescue is a duty when a sailor falls into the sea,
United States v. Knowles, 4 Sawy. 517, and that a
liability to respond in damages is cast upon the shipowners if he
is abandoned to his fate.
Harris v. Penn. R. Co.,
supra.
The act for the protection of railroad employees does not define
negligence. It leaves that definition to be filled in by the
general rules of law applicable to the conditions in which a
casualty occurs.
Cf. Murray v. Chicago & N.W. Ry. Co.,
62 F. 24, 31;
Ward v. Erie R. Co., 230 N.Y. 230, 234, 129
N.E. 886;
Michigan v. Michigan Trust Co., 286 U.
S. 334,
286 U. S. 343.
Congress did not mean
Page 287 U. S. 378
that the standards of legal duty must be the same by land and
sea. Congress meant no more than this, that the duty must be legal,
i.e., imposed by law; that it shall have been imposed for
the benefit of the seaman, and for to promotion of his health or
safety, and that the negligent omission to fulfill it shall have
resulted in damage to his person. When this concurrence of duty, of
negligence, and of personal injury is made out, the seaman's remedy
is to be the same as if a like duty had been imposed by law upon
carriers by rail.
The Court of Appeals, in its reversal of the District Court,
assumed, without deciding, that the care of the seaman had been
negligent, and that there was a causal relation between the
negligence and the death. The correctness of that assumption is
challenged by counsel for the shipowner. These issues of fact being
still open and undecided should be disposed of by the court
below.
The judgment is reversed, and the cause remanded to the Court of
Appeals for further proceedings in conformity with this
opinion.
[
Footnote 1]
That
"any seaman who shall suffer personal injury in the course of
his employment may, at his election, maintain an action for damages
at law, with the right of trial by jury, and, in such action, all
statutes of the United States modifying or extending the common law
right or remedy in cases of personal injury to railway employees
shall apply, and in case of the death of any seaman as a result of
any such personal injury, the personal representative of such
seaman may maintain an action for damages at law with the right of
trial by jury, and in such action, all statutes of the United
States conferring or regulating the right of action for death in
the case of railway employees shall be applicable."
Compare the Act of March 30, 1920, c. 111, § 1, 41
Stat. 537, 46 U.S.Code, § 761, "Death on the High Seas by Wrongful
Act," which extends to persons other than seamen, but is limited to
suits in admiralty.
[
Footnote 2]
The authorities are brought together and carefully discriminated
by Prof. Francis H. Bohlen, in an article "Moral Duty to Aid Others
as Basis of Tort Liability," in 56 University of Penn.Law Review
217, 316, reprinted in his "Studies in the Law of Torts," pp. 290,
315.
[
Footnote 3]
Compare again the authorities collected by Bohlen in
his "Studies in the Law of Torts," p. 312.