In a diversity of citizenship suit in a Federal District Court
in New York by petitioner, a seaman, against respondent, a
shipowner, the complaint alleged that: while a member of the crew
of respondent's vessel, petitioner suffered an ailment which was
not attributable to any fault of respondent but which entitled him
to maintenance and cure; he requested private treatment at
respondent's expense; this was denied, but respondent promised
that, if petitioner would accept treatment at a Public Health
Service Hospital, respondent would assume responsibility for all
consequences of improper or inadequate treatment; petitioner did
so, and suffered injury as a result of improper treatment. The
District Court dismissed the complaint because it failed to allege
that the agreement was in writing and such a verbal agreement is
void under the New York Statute of Frauds.
it was error to apply the New York Statute of
Frauds to bar proof of the agreement alleged in the complaint. Pp.
365 U. S.
(a) The alleged agreement was sufficiently related to peculiarly
maritime concerns as not to be, without more, beyond the pale of
admiralty law, which regards oral contracts as valid. Pp.
365 U. S.
(b) It was not, nevertheless, of such a "local" nature that its
validity should be judged by state law. Pp. 365 U. S.
275 F.2d 500, reversed.
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
Page 365 U. S. 732
the allegations of the complaint are deficient by reason of the
New York Statute of Frauds.
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.
. 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 by 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.
Page 365 U. S. 733
The District Court dismissed the complaint, considering that the
agreement sued on was void under the New York Statute of Frauds,
N.Y. Personal Property Law, § 31, par. 2, [Footnote 2
] there being no allegation that such
agreement was evidenced by any writing, 166 F. Supp. 571. [Footnote 3
] The Court of Appeals
affirmed. 275 F.2d 500. We brought the case here because it
presented novel questions as to the interplay of state and maritime
law. 363 U.S. 838.
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
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
Page 365 U. S. 734
York Statute of Frauds, if state law controls, nor, on the other
hand, can its validity well be doubted, though the alleged
agreement was not reduced to writing, if maritime law controls. For
it is an established rule of ancient respectability that oral
contracts are generally regarded as valid by maritime law.
] In this posture of
Page 365 U. S. 735
questions must be decided: first, was this alleged contract a
maritime one? Second, if so, was it nevertheless of such a "local"
nature that its validity should be judged by state law?
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,
411, or to insure a ship, Insurance Co. v.
11 Wall. 1, is maritime, but a contract to
build a ship is not. People's Ferry Co. v.
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 a Vapeur v.
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 Towing & Wrecking Co.,
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
Page 365 U. S. 736
contract. Methodist Episcopal Hospital v. Pacific Transport
3 F.2d 508. The principle by reference to which the cases
are supposed to fall on one side of the line or the other is an
exceedingly broad one. "The only question is whether the
transaction relates to ships and vessels, masters and mariners, as
the agents of commerce. . . ." I Benedict, Admiralty 131. [Footnote 5
The Court of Appeals here held:
"The contract sued on is not a maritime contract, since it was
merely a promise to pay money, on land, if the former seaman should
suffer injury at the hands of the United States Public Health
Service personnel, on land, in the course of medical treatment. . .
. For all that appears in the complaint, it may well be that the
contract sued on was allegedly made after the maritime contract of
employment of the plaintiff had been terminated. It really makes no
difference whether this was so or not. All that remained was the
performance by the shipowner of its undisputed obligation to supply
maintenance and cure. The shipowner supplied plaintiff with a
master's certificate, which was used by him to obtain admittance as
a patient in the United States Public Health Service Hospital. . .
. That took care of the obligation to furnish 'cure.' . . ."
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
Page 365 U. S. 737
Court of Appeals and respondent are certainly correct in
considering that a shipowner's duty to provide maintenance and cure
may ordinarily be discharged by the issuing of a master's
certificate carrying admittance to a public hospital, and that a
seaman who refuses such a certificate or the free treatment to
which it entitles him without just cause, cannot further hold the
shipowner to his duty to provide maintenance and cure. Williams
v. United States, 133 F.
; Luth v. Palmer Shipping Co.,
210 F.2d 224;
The Bouker No. 2,
241 F. 831; see Calmar S.S. Corp. v.
Taylor, 303 U. S. 525
without countenancing petitioner's intemperate aspersions against
Public Health Service Hospitals, and rejecting as we have the
noncontractual grounds upon which he seeks to predicate liability
here, we nevertheless are clear that the duty to afford maintenance
and cure is not simply and as a matter of law an obligation to
provide for entrance to a public hospital. The cases which
respondent cites hold no more than that a seaman who can receive
adequate and proper care free of charge at a public hospital may
"deliberately refuse the hospital privilege, and then assert a
lien upon his vessel for the increased expense which his whim or
taste has created."
The Bouker No. 2, supra,
241 F. at 835. Presumably, if
a seaman refuses to enter a public hospital or, having entered, if
he leaves to undergo treatment elsewhere, he may recover the cost
of such other treatment upon proof that "proper and adequate" cure
was not available at such hospital. Cf. Williams v. United
States; Luth v. Palmer Shipping Co., supra.
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
Page 365 U. S. 738
here alleged should be regarded as an agreement on the part of
petitioner to forego a course of treatment which might have
involved respondent in some additional expense, in return for
respondent's promise to make petitioner whole for any consequences
of what appeared to it at the time as the cheaper alternative. In
other words, the consideration for respondent's alleged promise was
petitioner's good faith forbearance to press what he considered --
perhaps erroneously -- to be the full extent of his maritime right
to maintenance and cure. Compare
American Law Institute,
Restatement, Contracts § 75, 76. So viewed, we think that the
alleged agreement was sufficiently related to peculiarly maritime
concerns as not to put it, without more, beyond the pale of
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
257 U. S. 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 244 U. S. 218
(dissenting opinion); Standard Dredging Corp. v. Murphy,
319 U. S. 306
319 U. S. 309
-- the qualifications and exceptions which this Court has built up
to that imperative doctrine have not been considered notably more
Gilmore and Black, Admiralty,
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
Page 365 U. S. 739
is this: the fact that maritime law is -- in a special sense, at
least, Romero v. International Terminal Operating Co.,
358 U. S. 354
federal law, and therefore supreme by virtue of Article VI of the
Constitution carries with it the implication that wherever a
maritime interest is involved, no matter how slight or marginal, it
must displace a local interest, no matter how pressing and
significant. But the process is surely rather one of accommodation,
entirely familiar in many areas of overlapping state and federal
concern, or a process somewhat analogous to the normal conflict of
laws situation where two sovereignties assert divergent interests
in a transaction as to which both have some concern. Surely the
claim of federal supremacy is adequately served by the availability
of a federal forum in the first instance, and of review in this
Court to provide assurance that the federal interest is correctly
assessed and accorded due weight.
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 wellbeing.
In allowing state wrongful death statutes, The Tungus v.
Skovgaard, 358 U. S. 588
The Hamilton, 207 U. S. 398
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's 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 be die, the intrusion of these
state remedial systems need not
Page 365 U. S. 740
bring with it any undesirable disuniformity in the scheme of
Altogether analogous reasoning was used by Mr. Justice Brandeis
in Red Cross Line v. Atlantic Fruit Co., 264 U.
, 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
The line of cases descended from the early precedent of
Cooley v. Board of
12 How. 299, and most recently added to by
Huron Portland Cement Co. v. Detroit, 362 U.
; 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:
". . . The thrust of the federal inspection laws [with which
petitioner had complied] is clearly limited to affording protection
from the perils of maritime navigation. . . ."
"By contrast, the sole aim of the Detroit ordinance is the
elimination of air pollution to protect the health and enhance the
cleanliness of the local community. . . ."
"* * * *"
"Congressional recognition that the problem of air pollution is
peculiarly a matter of state and local concern is manifest in . . .
362 U.S. at 362 U. S.
Page 365 U. S. 741
Turning to the present case, we think that several
considerations point to an accommodation favoring the application
of maritime law. It must be remembered that we are dealing here
with a contract, and therefore with obligations, by hypothesis,
voluntarily undertaken, and not, as in the case of tort liability
or public regulations, obligations imposed simply by virtue of the
authority of the State or Federal Government. This fact, in itself,
creates some presumption in favor of applying that law tending
toward the validation of the alleged contract. Pritchard v.
Norton, 106 U. S. 124
Ehrenzweig, Contracts in the Conflict of Laws, Part One: Validity,
59 Col.L.Rev. 973. As we have already said, it is difficult to deny
the essentially maritime character of this contract without either
indulging in finespun distinctions in terms of what the transaction
was really about or simply denying the alleged agreement that
characterization by reason of its novelty. Considering that sailors
of any nationality may join a ship in any port, and that it is the
clear duty of the ship to put into the first available port if this
be necessary to provide prompt and adequate maintenance and cure to
a seaman who falls ill during the voyage, The Iroquois,
194 U. S. 240
seems to us that this is such a contract as may well have been made
anywhere in the world, and that the validity of it should be judged
by one law wherever it was made. On the other hand, we are hard put
to perceive how this contract was "peculiarly a matter of state and
local concern," Huron Portland Cement Co. v. Detroit,
unless it be New York's interest in not lending her
courts to the accomplishment of fraud, something which appears to
us insufficient to overcome the countervailing considerations.
Finally, since the effect of the application of New York law here
would be to invalidate the contract, this case can hardly be
analogized to cases such as Red Cross Line v. Atlantic
or Just v. Chambers, supra,
where state law had
the effect of supplementing
Page 365 U. S. 742
the remedies available in admiralty for the vindication of
maritime rights. Nor is Wilburn Boat Co. v. Fireman's Fund Ins.
Co., 348 U. S. 310
apposite. The application of state law in that case was justified
by the Court on the basis of a lack of any provision of maritime
law governing the matter there presented. A concurring opinion,
at 348 U. S. 321
and some commentators have preferred to refer the decision to the
absurdity of applying maritime law to a contract of insurance on a
houseboat established in the waters of a small artificial lake
between Texas and Oklahoma. See
Gilmore and Black,
Admiralty 44-45. Needless to say, the situation presented here has
a more genuinely salty flavor than that.
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
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.
Apparently any cause of action against the United States arising
out of the alleged negligence of its agents in treating petitioner
was barred by the running of a shorter statute of limitations than
is applicable to the contract alleged here. Compare
U.S.C. § 2401(b), with
New York Civil Practice Act, §
New York Personal Property Law, § 31, par. 2, provides:
"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."
A second cause of action for maintenance and cure was
subsequently discontinued by petitioner, 275 F.2d at 502.
Although the question has not often been litigated, Union
Fish Co. v. Erickson, 248 U. S. 308
see United States Fidelity & Guaranty Co. v.
American-Hawaiian S.S. Co.,
280 F. 1023; Hastorf v. F. R.
Long-W. G. Broadhurst Co.,
239 F. 852; Quirk v.
20 Fed.Cas. No. 11,518; Northern Star S.S. Co. of
Canada v. Kansas Milling Co., 75 F.
, it is well accepted that maritime contracts do not
as a generality depend on writing for their validity. As Judge
Hough, one of the most distinguished of the federal admiralty
judges, once said:
"[This] failure to stress force of custom in maritime matters is
found in Union Fish Co. v. Erickson [supra],
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
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
 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,
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
no more than exemplifies the enforceability
of an oral maritime contract of hire.
Benedict goes on to quote from an anonymous commentary on the
Mediaeval Statutes of Culm, one of the early sources of maritime
law, that anything pertaining to navigation or seamen is to be
considered a part of the maritime law.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE STEWART joins,
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
mischief it has caused was due to the uncritical application of the
loose doctrine of observing "the very uniformity
Page 365 U. S. 743
in respect to maritime matters which the Constitution was
designed to establish." Southern Pacific Co. v. Jensen,
at 244 U. S. 217
The looser a legal doctrine, like that of the duty to observe "the
uniformity of maritime law," the more incumbent it is upon the
judiciary to apply it with well defined concreteness. It can fairly
be said that the Jensen
decision has not been treated as a
favored doctrine. Quite the contrary. It has been steadily narrowed
in application, as is strikingly illustrated by such a tour de
as our decision in Davis v. Department of
Labor, 317 U. S. 249
The Court today, relying as it does on Jensen,
reinvigorates that "ill starred decision." Davis v. Department
of Labor, supra,
at 317 U. S. 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.