Fitzgerald v. United States Lines Company

PETITIONER:Fitzgerald
RESPONDENT:United States Lines Company
LOCATION:Clauson’s Inn

DOCKET NO.: 463
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 374 US 16 (1963)
ARGUED: Apr 18, 1963
DECIDED: Jun 10, 1963

Facts of the case

Question

Audio Transcription for Oral Argument – April 18, 1963 in Fitzgerald v. United States Lines Company

Earl Warren:

Number 463, Thomas I. Fitzgerald, Public Administrator of the County of New York, etcetera, Petitioner, versus United States Lines Company.

Mr. Friedman.

Theodore H. Friedman:

Mr. Chief Justice and may it please the Court.

This proceeding comes from the Circuit Court of Appeals of the Second Circuit by certiorari.

It involves the specific question of whether a seaman who has brought a maintenance and cure claim appended to a Jones Act negligence claim arising out of the same incident, the same employment, and the same injuries is or is not entitled to a trial by jury of the issues relating to the maintenance and cure claim.

In the Court below, it was denied to him and we are be — on behalf of a petition on the ground that he was entitled to that trial by jury and that it was improperly denied to him.

As the Court may note from the caption, the plaintiff, Mr. Andres San Martin died during the pendency of the appeal and his administrator, the Public Administrator of the County of New York was substituted and that is why the caption reads the way it does.

He was alive during the time of trial and testified.

Now, very briefly, the facts, as they may relate to the legal question before the Court, was that the petitioner or the intestate alleged that on November 5, 1954, while an ordinary seaman aboard the ship of the respondent, he was directed over his own objection and that of other seamen to carry a 100-pound drum of cement up an inclined gangway from the pier to the ship.

But this gangway was not secure, that he — as he was going up the gangway with this 100-pound drum of cement on his shoulder, lost his balance, wrenched his back, and suffered severe injuries.

At the end of the voyage in December, he left the ship with master certificate, and went to the United States Public Health Service Hospital in Staten Island, New York.

He was treated there, became an in-patient, and remained an in-patient until March 1, 1955, a period of about — approximately three months.

He was discharged from that hospital marked “not fit for duty” with the diagnosis of a herniated disc and another notation that he had received maximum hospital benefits.

He filed suit in June of 1955.

The case came to trial in May of 1960 in the Southern District.

At that time, when it finally became time, that I will go into later, for the maintenance and cure testimony to be presented, the defendant’s physician, orthopedic specialist, claimed that Mr. San Martin could not receive any further curative care and that when he was discharged on March 1, 1955, his condition was such that he would not benefit in any way from any further medical care.

The plaintiffs, the petitioner’s physician, who happened to be the former-Chief of the Orthopedic Service of the very Marine Hospital from which this man had been discharged, testified to the contrary.

This was all to the Court alone since the jury trial had been denied on these issues.

At the —

Potter Stewart:

The issue of being whether you’d reached the point of maximum cure, is that it?

Theodore H. Friedman:

Yes, Your Honor.

And, the testimony of the petitioner’s physician was that he should have received conservative treatment, received the brace, there is other medical treatment that this would not only have provided a cure in terms of relief from pain and suffering but would have removed him from the ranks of total disability which is where he remained throughout these five years and would have made him able to accept gainful employment of a non-arduous nature such as an elevator operator or an assembler of parts or things of that nature.

Now —

(Inaudible)

Theodore H. Friedman:

Yes, Your Honor.

(Inaudible)

Theodore H. Friedman:

Well, it’s a little longer than the normal at that time.

The Southern District is much less congested now.

The waiting period — my own experience, limited as it may be was — is that, now, three years, it’s the normal waiting period, approximately two years from the filing of note of issue but that can’t be done until all free trial discovery is completed.

It averages about a year, I would say three years.

Theodore H. Friedman:

At that time, it was longer.

Your Honors may be familiar that numerous just — judges have been appointed recently and that’s cut down the waiting period.

Now, as is clear from the opinions on the record, the District Court judge decided this factual issue against the plaintiff and accepted in full the testimony of the defendant’s physician that there was no curative treatment available to the man.

And so, without going to the facts anymore, now reverting to legal question, I think the record establishes that the seeking by the petitioner of a trial by jury related to some very substantial monetary issues to him, the outstanding maintenance and cure for the five years that it intervened as well as, as is noted from his complaint, he sought damages for the failure to properly pay him the maintenance and cure when it was due and of course, this Court has held many times that maintenance and cure is due when it is due, that is the very day that he is ill, the very day that he would and should receive curative treatment and does not.

And, again, this amount was substantial because the petitioner could have shown that he not only lost the $8 a day but the employment and the earnings that he would have had, had he been able to obtain gainful employment which he would’ve been able to obtain according to his physicians having received the medical treatment to which he was entitled and which the shipowner denied to him, although, without question, there had been a due demand by June of 1955 when the complaint was filed.

That of course, is on the record.

I think, if I may speak to the facts of life, we all know that the demand in fact had been made earlier, the seaman’s condition was known to the shipowner, it happened aboard the ship, he received the master certificate and they, in fact, had paid him a very small amount, some $32 in maintenance and cure in the intervening period and then had cut him off.

Potter Stewart:

But that the duty — just to verify the confusion in my mind, the duty of maintenance and cure is to pay cure up to the point of maximum cure where it — up to the point when no more treatment would do any good.

Isn’t that right?

Theodore H. Friedman:

Correct, Your Honor.

Potter Stewart:

And, maintenance is what?

Theodore H. Friedman:

Well, the maintenance is during that period.

The cure relates to the cost of the medical care.

Potter Stewart:

Right.

Theodore H. Friedman:

Frequently now, obtains free of charge from the United States Public Health Service but not always.

The maintenance refers to $8 a day which is agreed upon throughout the industry as the board and lodging, the “keep” as sometimes called in old maritime cases.

During the period that he’s receiving the cure, the medical care, he gets upkeep of $8 a day for maintenance.

Potter Stewart:

I wonder where the $8 a day came from because that was not —

Theodore H. Friedman:

It’s now the adopted in agreement —

Potter Stewart:

It’s a matter of universal custom now?

Theodore H. Friedman:

Yes, Your Honor.

And again, in my experience, even in those cases where the NMU, the National Maritime Union contract isn’t in effect, it’s almost stipulated by counsel rather than calling him “home economist” —

Potter Stewart:

I see.

Theodore H. Friedman:

— to testify what might be the reason of that.

William J. Brennan, Jr.:

Did he get them while he was hospitalized?

Theodore H. Friedman:

No, not while he’s an in-patient because he’s being maintained inside the hospital which — if it’s free, it’s there and —

Potter Stewart:

Could you say what the period involved as to maintenances here?

Theodore H. Friedman:

Well, the period that petitioner alleges would be from the time of March 1, 1955 when he no longer was an in-patient, right through to the time of trial.

He never became an in-patient again.

And then we reached the problems that this Court recently noted in the Salem case of whether any amount should ever be allowed for the time after trial.

Theodore H. Friedman:

As I understand the rule, if it is very, very clear and certain as to what amount should be allowed for the period after trial, the Court may allow it.

Otherwise, it should refrain from allowing it for any period after the trial.

But certainly, the claim was in May 12, 1960 when this case came for trial, something over five years of maintenance, so it was a substantial claim in addition to the other elements involved, the loss of employment and earnings.

Now, on the legal issue, the question framed on the writ of certiorari, I submit that there has been literally no question that it is desirable on all of the policy considerations that a joint trial be held.

I note that — in the briefs, we submit the writings of learned commentators and as I see it, there is not a learned commentator who has devoted time and energy and scholarship to this question but has not reached the conclusion that this is indeed the desirable result that when a Jones Act claim or when a seaman comes before a Court and relates that he has been injured, relates that negligence or unseaworthiness has caused his injury and presents all his medical testimony that the efficient affair, the proper way to proceed, if possible, would be to allow the same jury to determine what maintenance and cure payments he should receive.

And so, I will not speak at this point to any extent as to the question for what — this is the desired result.

In fact, even below, the only voice of all the opinions and commentators that have spoken on the subject that has suggested that a joint jury trial should not be allowed, that it suggested that the question now before the Court should be answered in the negative is the opinion of Judge Friendly of the Circuit Court on behalf of only four of the nine members of the Second Circuit who heard this matter en banc.

And even he concludes that this indeed would be desirable to have a joint jury trial.

In other words, the question now before this Court should be answered in the affirmative, if at all possible.

So, I now turn, if I may, to what —

Potter Stewart:

Did it — if this had been only a suit for maintenance and cure, you make no contention that it could have been tried in any other way except before a judge alone, do you?

Theodore H. Friedman:

I do, Your Honor, Mr. Justice Stewart, and the reason is this.

In fact, there was diversity of citizenship.

In fact, this man was a resident of the State of New York.

He was a citizen, as the record shows, either of Spain where he was born or of New York where he resided.

In fact, he had become a naturalized citizen in 1943.

This appears in the depositions but not in the trial record, but on the trial record appears the fact that he was born in Spain and lived for a long time in New York.

So, he’s either — from the trial record, a citizen of New York or Spain.

The defendant on his pleadings, was a resi — was a citizen of the State of New Jersey, was in any case a citizen not of the State of New York.

It was a foreign corporation, not an alien but a foreign corporation.

And therefore, diversity of citizenship existed.

Potter Stewart:

Well, even so, this isn’t a common law action, is it?

Theodore H. Friedman:

This —

Potter Stewart:

I’m assuming a law — a suit only for maintenance and cure, nothing else joined with it.

Theodore H. Friedman:

I then reach this proposition, Your Honor, if I understand the point we’re at.

A maintenance and cure claim, if diversity of citizenship exists, I submit is entitled — it is — they affirmed it, entitled to a trial by jury in the federal court.

Now, I submit the following that a maintenance and cure claim may enter the federal court on one of two grounds.

It may approach through the exercise of the admiralty jurisdiction in Article 3 of the Constitution and 28 Title 1333, and it — there appears as a maritime — as an admiralty claim, historically, not entitled to a jury.

But a plaintiff may appear as he so desires not that way but claiming it as a common law right which would be entitled to a jury in the state court.

But is he entitled, and that brings us to the question, to bring a state claim?

Theodore H. Friedman:

He is, if diversity of citizenship exists.

And then he appears in Court under 1332 of Title 28 and under the exercise of diversity of citizenship, if he were entitled to a jury in the state court, he is clearly entitled to a jury in the federal court.

Or, he —

Potter Stewart:

I follow this all except to your assumption that he would be entitled to a jury in a state court.

Theodore H. Friedman:

Well, this — Mr. Justice Stewart, is discussed in the opinion below.

There are numerous cases cited there of this Court and it has been conclusively held that in the state courts, a trial by jury as a common law matter, is permitted for maintenance and cure claims and has been regularly allowed.

I might call this attention — the Court to its own opinions in Leon v. Galceran, in the Garrett v. Moore-McCormack case which is a more recent case, rather often quoted in this area.

There was a trial by jury in the Pennsylvania Court.

It so happen that the Pennsylvania Court applied a state rule as to the burden of proof on release and this Court took the question and pointed out that they must apply the Federal Maritime Rule.

But recognizing without any disapproval or question whatsoever, that it was a properly submitted question, the maintenance and cure claim is a $1000 verdict for maintenance and cure in the Garrett case in the Pennsylvania Court.

Potter Stewart:

But it’s — are you — the question I’m asking is not whether a court may submit it to a jury but whether a court must, upon request, submit it to a jury.

Theodore H. Friedman:

Well, that question of course, would lie to what has been the state procedure in the past.

And I would submit that a study of this will show that, throughout the years, the state courts have allowed and grant the juries on these State — on these maintenance and cure claims when brought as a simple claim for money in personam against the shipowner for money damages.

It is in fact the — almost the simplest type of common law in personam claim in which the man comes in and seeks money against the shipowner, over whom he has obtained in personam jurisdiction, which was — what was obtained here.

Arthur J. Goldberg:

Mr. Friedman, am I right though, that this Court has never directly passed on what you have stated about diversity jurisdiction and jury trial has been agreed to by many lower federal courts that has asserted, had been denied in many other cases?

Has this Court ever directly said that?

Theodore H. Friedman:

I would say this, Mr. Justice Goldberg.

In Leon v. Galceran, decided in I think approximately 1893, the specific issue was wages, but wages is maintenance and cure.

There’s no issue about that.

This Court has said so I think in Pacific v. Peterson, pointed out that wages consists of maintenance and cure as it were.

It consists of three items: maintenance, cure, and wages — beyond our wages.

And there, it was specifically held by this Court that the claim for wages was within the savings clause, was a common law remedy, was entitled to a jury resolution.

I may point now this Court’s attention to the extensive scholarly discussion in Mr. Chief Justice Stone’s decision in Madruga which is cited in our reply brief and there, it is comprehensively noted in the footnotes the fact — excuse me, it’s Mr. Justice Black’s decision in Madruga.

I’m very sorry.

That the jury trials were allowed on these common law claims.

Also in fact, if I may borrow from my learned adversary’s brief, in the very case he cite, Henry v. Moore in which Mr. Chief Justice Stone wrote an extensive opinion and the issue there was an in rem proceeding in the state courts but in the scholarly discussion that appears there, they have numerous cases cited, a numerous discussion of all of the old law on this issue that state courts regularly treat these maritime claims and rightfully grant juries on them.

The mere fact that it is maritime does not deny a jury resolution of the issues in the state courts, and the opinion below in this Court, in the Second Circuit in this case, fully accepted that fact.

Arthur J. Goldberg:

Did you, on the other hand, say that these states (Inaudible)

Theodore H. Friedman:

Oh, yes, Your Honor.

You could not — the petitioner, a seaman, could not get into the federal court absent diversity and absent pending —

Arthur J. Goldberg:

(Inaudible)

Theodore H. Friedman:

— to a substantial —

Arthur J. Goldberg:

(Inaudible)

Theodore H. Friedman:

He couldn’t get in the door except through 1333, the Admiralty Court jurisdiction.

Arthur J. Goldberg:

(Inaudible)

Theodore H. Friedman:

Absolutely.

Arthur J. Goldberg:

(Inaudible)

Theodore H. Friedman:

Right.

Or you could, of course, attempt to invoke Rule 39 (c) of the FRCP and seek an advisory jury to the discretion of the Court, but we —

Arthur J. Goldberg:

(Inaudible)

Theodore H. Friedman:

Well, I can only say, Mr. Justice Goldberg, that I was relatively heartbroken that the court did not — below did not invoke that discretion and power that it have.

I don’t even know if it’s discretionary.

I see it that the Court had to, and when it was for — and that was cited to the Court, the Brooks v. Yawkey case to the First Circuit which point out that even when the case is pending on appeal, a court may and should amend the pleadings to bring the —

Arthur J. Goldberg:

(Inaudible)

Theodore H. Friedman:

Well, the fact that — starting from the respondent’s side, the fact that the respondent was not a citizen of New York, so that the first hurdle was acquired was — or the second hurdle, however you look at it, that appeared from the pleading right from the outset.

The fact that the petitioner’s intestate, the plaintiff, was a citizen of New York or of Spain but in any case, diverse from the defendant, appeared during the course of his testimony on the first day of trial when he testified that he came from Spain and that he resided in New York, and that appears in the record here and that was testimony taken on the first day of trial.

I may also say, because this was — I may also say that I submit respectfully that it was brought to the Court’s attention — the trial court’s attention, perhaps implicitly rather than explicitly, when I argue to the — to Judge Levitt, District Judge Levitt, and appears on page 89 of the brief, that this man could’ve brought his proceeding in the state court on a common law basis.

In the state court, it would’ve been entitled to a jury.

I think implicit within that was that, since I was referring to the state law and what it would’ve been entitled to in the state law, I was referring to the diversity of citizenship and the rights under Erie v. Tompkins which would grow there from.

And I think that implicitly in that argument was already brought to the Court’s attention the fact that there was a diversity of citizenship vaguely but explicitly as to the facts of citizenship, certainly the first day of trial revealed the plaintiff’s situation and the pleadings had already been before the Court as to the defendant.

Arthur J. Goldberg:

Was there any (Inaudible)

Theodore H. Friedman:

Only in the — on the appeal before the Circuit Court or when the brief was filed to the Circuit Court, the brief contained a discussion of this issue and stated to the Circuit Court that we are prepared and ready to amend the pleadings if such be necessary.

We noted the Brooks v. Yawkey case of the First Circuit where the Court had pointed out that it’s not necessary to amend the pleading just so long as the fact of diversity is brought to the Court’s attention then the Court will allow a pro forma motion after the opinion is rendered.

And so, we brought to the Court’s attention that fact and assume that the Brooks v. Yawkey decision would be followed.

Arthur J. Goldberg:

(Inaudible)

Theodore H. Friedman:

I would submit that he had —

Arthur J. Goldberg:

(Inaudible)

Theodore H. Friedman:

Yes, I would submit that and I would say even further, Mr. Justice Goldberg, if I may, that I don’t think, dealing with this basic and cherished procedural right, as Mr. Justice Clark — as Judge Clark called it below, that it is — that this can turn either on whether I, as counsel, mentioned it to Judge Levitt below.

I think that if the fact of diversity of citizenship existed then the jurisdictional principle must apply just that the reverse side of the coin, supposing diversity of citizenship hadn’t in fact existed and, for some reason or other, this case was in Court on diversity of citizenship.

Would it depend on whether counsel called it to the Court’s attention?

Theodore H. Friedman:

Clearly not.

Many Courts, this Court too has held that absent diversity, the sword must fall, the case must go out.

I think that the sword has two sides but in any case, as I submit, it was called to the Court’s attention.

Of course, as I say, as we have argued in our briefs, we don’t realize solely on the diversity of citizenship.

We think that as a matter of fundamental policy in appended jurisdiction argument should be evoked in the main brief and perhaps more extensively developed in the reply brief, if I may direct the Court’s attention to the discussion there that we’re fully entitled to a jury trial below.

Earl Warren:

Mr. Danahar.

Matthew L. Danahar:

Mr. Chief Justice, may it please the Court.

Petitioner in his original brief and in his reply brief which I received today or so ago and here today has alluded to and has been arguing questions which this Court refused to consider when it granted the writ.

One of the questions is this very diversity question that has been discussed with Mr. Justice Goldberg.

I will not yield to the temptation at this time to attempt to refute the argument on these questions that are now presented.

And I will deal solely with the question which is presented, which I’ll read.

Question: “Does a seaman have a right to a jury trial on a claim for unpaid maintenance and cure enjoined by the claim for Jones Act negligence?”

That is the only question that is presented to the Court here today.

Now, since maintenance and cure is basically a maritime claim, I think it’s appropriate to discuss briefly the historical background and development of the admiralty and maritime jurisdiction of this Court.

As this Court knows, prior to the adoption of the Constitution.

There existed in America a system of laws and these laws embodied principles of the maritime law which principles have developed from the very early ancient sea codes.

Under the — under this system, maintenance and cure claims were prevented or presented for adjudication and they were heard and determined without a jury.

The framers of the Constitution, in drafting the Constitution, had this system in mind and they adopted it and incorporated it into the Constitution.

They not only adopted the substantive features of this maritime law, this admiralty maritime jurisdiction, but also the procedural feature which did not permit a jury trial in these maritime claims.

Now, Article 3, Section 2, Clause 1 of the Constitution is the provision which incorporated this preexisting system and it read that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction.

Now, in addition to Article 3, Section 2, Clause 1, the framers of the Constitution further provided in Article 3 that Congress would have the power to set up inferior federal courts.

And pursuant to this power, Congress set up the inferior court system under the first Judiciary Act of 1789.

And among other things, Congress invested these inferior courts with admiralty and maritime jurisdiction.

These courts were not common law courts or courts of general jurisdiction.

Their jurisdiction was strictly limited to what Congress had conferred upon them.

Now, the language of this Act of 1789 did not show any indication on the part of Congress to change the existing maritime practice of hearing these maritime claims without a jury.

All that it provided for, it preserved to suitors the right to pursue the common law remedies in the state courts which they had a right before the adoption of the Constitution.

Thus, from the very founding of the Constitution and the enactment of the first Judiciary Act, the Federal Courts had the power to hear and determine these maritime claims but only on its admiralty side where a jury was not allowed.

The first Judiciary Act did not authorize the courts to give jury trials which Congress had not provided for and Congress, up to this present day has not seen fit to provide in these maritime claims, the jury trials except in two classes of cases which are not here applicable.

That’s the cases, so-called Great Lake cases which is 28 U.S.C. 1783, in the Jones Act case, 46 U.S.C. 688.

Matthew L. Danahar:

Now, the petition — now recognizing the fact, that this Court did not have the power to try a maritime case with the jury, has asserted that because his maritime cause of action was joined with his Jones Act claim, therefore he’s entitled to a jury trial.

And in doing this, he adopts the doctrine of Hurn v. Oursler, which I submit to Your Honors, is not applicable in this case at all.

The Hurn doctrine of pendency has nothing to do with the mode of trial.

It relates solely the question of jurisdiction and the authority of the federal court to decide a nonfederal claim that is appended to a federal claim.

It’s really a question of jurisdiction and giving access in the federal court to a state claim.

I submit to Your Honors there’s no — there’s no sound basis for extending this Hurn doctrine which is limited strictly to jurisdictional and not to mode of trial, particularly in view of the fact that Congress is not seen fit to extend jury trials in these maritime claims and the Constitution certainly does not provide for it.

Now, since petitioner’s maintenance and cure claim was joined in the same complaint with his Jones Act claim, it is therefore subject to the Federal Rules of Civil Procedure.

Potter Stewart:

You don’t question in any way the propriety jointer of the two claims, do you?

Matthew L. Danahar:

No, I do not, sir.

Potter Stewart:

That’s customary.

That’s all the time (Inaudible).

Matthew L. Danahar:

Yes sir.

The only thing I do question is that the mode of trial is governed by the Federal Rules of Civil Procedure and the District Court must follow these rules in giving the mode of trial.

Arthur J. Goldberg:

(Inaudible)

Matthew L. Danahar:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

Matthew L. Danahar:

Your Honor, Mr. Justice Goldberg, I cannot quarrel with the policy considerations urged by my opponent.I must concede that from a practical standpoint of convenience that it probably would be better to try these two claims together.

My position is that the Court does not have the right or the power to do that is up to the Congress or this Court under its rulemaking power to provide for that right, and that the District Court cannot do it.

Hugo L. Black:

Well, is there any statute or rule that says they cannot do it?

Matthew L. Danahar:

Well, there’s no — no, Mr. Justice Black, there’s no statute that says they cannot do it but, from the history of the development of the maritime law, as I just attempted to point out, from time immemorial in maritime cases, you have not had juries.

Hugo L. Black:

I agree that that’s the Court’s — this case — Courts has held that equity cases and maritime cases do not require to have a jury.

The Constitution doesn’t tell us, but has there ever been any case that said that — there may have been that a maritime case cannot be tried before a jury if the judge wants to?

Matthew L. Danahar:

Well, you mean before this case?

Hugo L. Black:

Yes.

Well, this case, as I gather, would put perhaps on the ground that the claim didn’t come at the right time.

But whether — has there ever been a case in this Court, as I’ve said that a maritime issue like this cannot be tried before a jury?

Matthew L. Danahar:

No.

No, sir.

No, Mr. Justice Black.

I’m not aware of any such case.

Hugo L. Black:

That’s the reason I was a little startled when you said the Court was without power.

I understand your historical argument, but you’re going far enough to say it was without power to do it.

Matthew L. Danahar:

Yes, sir.

Hugo L. Black:

That’s what your case depends on?

Matthew L. Danahar:

Yes, sir.

My case depends upon the lack of power in the District Court to grant a jury trial in a maritime claim absent diversity of citizenship.

Potter Stewart:

Well, even — it doesn’t necessarily — perhaps the only — in your opinion, the only good argument you can make is that — and the only one that will stand up, but Judge Smith and Judge Waterman apparently didn’t feel there was a lack of power in the judges, the trial judges’ discretion to submit the maintenance and cure case to the jury and that indeed, the district judge did have such discretion to submit it but they nevertheless concurred with the — with Judge Friendly’s judgment because they didn’t think that there was any compulsion to do so, is that it?

Matthew L. Danahar:

That’s right, Mr. Justice Stewart.

Potter Stewart:

Now, that may or may not be valid but in other words, at least two circuit judges didn’t go so far as you did and they nevertheless concurred in the judgment.

Matthew L. Danahar:

That’s correct.

Now, as I was saying —

Hugo L. Black:

But as I understand, you agree that — I thought you said that if there is power, that you agree with the other side as to the policy of the obedience and the wisdom of doing it —

Matthew L. Danahar:

Yes.

Hugo L. Black:

— insofar as the Court procedure is concerned.

Matthew L. Danahar:

Yes, Mr. Justice Black.

I must agree with my opponent as far as policy considerations are concerned.

It probably would be better, more convenient, can save time of the Court to try both of these claims together, but I say that the Court has no such right to do that absent — this Court here, making a rule providing for it.

Hugo L. Black:

So, it would have to be expressly permitted by a rule or a statute.

Matthew L. Danahar:

Yes, sir.

I return now to my discussion of the federal rules which would govern in this case because the maintenance and cure claim was pendent to the Jones Act claim.

Rule 38 and Rule 39 are the specific rules which deal with the mode of trial in cases where these rules are applicable.

Now, under Rule 38, the right to a jury trial is preserved and filed, as declared by the Seventh Amendment, in cases as declared by the Seventh Amendment and statutes by the United States.

And under Rule 39, if the Court should find that one of the issues in which a jury trial has been demanded does not come under the Seventh Amendment or under the statute of the United States and they cannot grant a jury trial and this is a specific prohibition in the rules to that effect.

Now, petitioner in this case does not come under the Seventh Amendment of the Constitution because that deals with common law rights and remedies and I pose that such situations, the common law right to a jury trial shall be preserved.

Petitioner does not come under that because this is a maritime right.

It’s maritime in nature and it’s not legal or common law in nature whatsoever.

Petitioner has no right to a jury trial under any statute of the United States.

Congress has seen fit to enact two statutes in which it has specifically granted jury trials.

One of them is the Great Lake statute which I have referred to before in the Jones Act, but neither of these statutes includes the maintenance and cure claim.

Surely, the language of the Jones Act itself doesn’t expressly include it.

Matthew L. Danahar:

There’s nothing in the Act at all that refers to maintenance and cure.

However, petitioner takes the position that the maintenance and cure claim is so intertwined as it puts it with the Jones Act case that it becomes part of it.

And therefore, it was — it’s implicit that Congress must have intended that it’d be tried with the Jones Act case into a jury.

I point out that while it is true, there is some connection between a Jones Act case and the maintenance and cure case, that is, there is a certain amount of intertwining, particularly in this case, because the Jones Act case is based upon one and the same action as the maintenance and cure claim.

So, there is intertwining to that extent.

Potter Stewart:

But am I right in remembering that in order to recover maintenance and cure, you don’t have to show any unseaworthiness or any fault or anything else in the part of the ship?

If you fall sick and you’re a member of the ship’s crew, you’re entitled to maintenance and cure, are you not?

Matthew L. Danahar:

That’s correct, Mr. Justice Stewart.

Arthur J. Goldberg:

(Inaudible)

Matthew L. Danahar:

That’s correct.

Arthur J. Goldberg:

Is that right?

Matthew L. Danahar:

That’s correct.

Arthur J. Goldberg:

(Inaudible)

Matthew L. Danahar:

That’s correct.

This —

Byron R. White:

How about the — as the result of the decisions below, there was no unseaworthiness and there was no negligence, is that right?

Matthew L. Danahar:

There was a claim for unseaworthiness and negligence and that issue was submitted to the jury —

Byron R. White:

And —

Matthew L. Danahar:

— for determination and resulted in a verdict for the defendant.

Byron R. White:

So, that there is no — the Jones Act or unseaworthiness claim left here.

Matthew L. Danahar:

That’s — that is correct, Mr. Justice White.

Byron R. White:

Nothing to be intertwined with.

Matthew L. Danahar:

That is correct, Mr. Justice White.

Arthur J. Goldberg:

(Inaudible)

Matthew L. Danahar:

Well, to answer your question, Mr. Justice Goldberg, it should be determined there.

That’s correct but, in answer to Mr. Justice White, it is a fact that we no longer have anymore Jones Act or unseaworthiness claim in this case.

Arthur J. Goldberg:

(Inaudible)

Matthew L. Danahar:

It was decided against the petitioner.

Potter Stewart:

Well your — your point, I gather, is that the question on which we granted certiorari and the present posture of the case simply isn’t here.

Matthew L. Danahar:

That’s correct, Mr. Justice Stewart.

Potter Stewart:

What we have now is an isolated single claim for maintenance and cure.

Matthew L. Danahar:

That’s correct.

Potter Stewart:

Not joined to anything else.

Matthew L. Danahar:

Correct.

And I say, because of that situation, I think the writ has been improvidently granted.

And I so argue that in the first point of my brief.

Arthur J. Goldberg:

(Inaudible)

Matthew L. Danahar:

That’s the problem presented here, Your Honor.

There’s one other element I would like to add and that is we do not have diversity of citizenship here.

Arthur J. Goldberg:

(Inaudible)

Matthew L. Danahar:

Yes.

Arthur J. Goldberg:

(Inaudible)

Matthew L. Danahar:

That’s right sir.

So, getting back to the intertwining of the maintenance and cure claim with the Jones Act claim, I say that the only intertwining in this case is that both claims arose out of the same accident and nothing more.

That’s where the intertwining ceases from thereon.

You have separate and distinct and independent causes of action.

The Jones Act cause of action is an action that damages personal injury based on negligence.

Your maintenance and cure of cause of action is simply an action to recover maintenance.

All you have to show in such an action is that an action or an injury occurred on the ship and that you were disabled during a certain period of time and therefore, you’re entitled to be maintained during that period of time.

William J. Brennan, Jr.:

Well, may I get this through?

Looking at the petition, there were two grounds, the questions presented under the Jones Act suits which we refused to take, is that it?

Questions three and four seemed to deal with the Jones Act claim, questions one and two, the maintenance and cure claim.

I’m looking at the petition for cert, what we do, limit this to questions one and two?

Potter Stewart:

No, just to one.

Just to one.

Matthew L. Danahar:

Just to one.

William J. Brennan, Jr.:

Just to one.

Matthew L. Danahar:

Does the seaman have a right to a jury trial on a claim for unpaid maintenance and cure when joined with a claim for Jones Act negligence?

That’s the only question that —

Potter Stewart:

So, it’s not his fault if we severed this now so that’s — and make it a maintenance and cure claim, is it?

Potter Stewart:

He tried to get his —

Matthew L. Danahar:

It’s not his fault, if Your Honor please, that this Court has seen fit to deny his — the other questions that he presented.

If that’s what you mean.

Arthur J. Goldberg:

(Inaudible)

Matthew L. Danahar:

Going back again to the history of the admiralty maritime jurisdiction prior to the Constitution, even in state courts, maritime matters were heard and determined and in those instances, jury trials were permitted and when the Constitution was enacted or rather when the Judiciary Act was passed and the Congress set up the inferior courts and invested them with jurisdiction in these admiralty maritime matters, they specifically reserved to suitors the right to pursue whatever remedies were existing at that time in the common law courts of the states and colonies.

So, this practice of hearing and determining maritime claims in common law existed long before the adoption of the Constitution, and that was preserved in the savings to the suitor’s clause.

Potter Stewart:

So, you’re — in basic agreement, as I understand you with Mr. Friedman, aren’t you, Mr. Danahar, on the outer limits of this thing?On the general framework, you say that you agree with him, as I understand it that perhaps you don’t, that if this certainly — if this were in a — in a state court, an action exclusively for maintenance and cure, the plaintiff would be entitled upon request to a jury trial.

Matthew L. Danahar:

Yes, I do.

Potter Stewart:

And do you all — further agree that in a federal court where jurisdiction is based upon diversity of citizenship there would also be such a right?

Matthew L. Danahar:

I do, sir.

Potter Stewart:

And you — and then he agrees with you on the other hand that if jurisdiction is based only on the admiralty jurisdiction of the federal courts and there’s a single action for maintenance and cure, that he would have no right to a jury trial.

Matthew L. Danahar:

Correct.

Potter Stewart:

And I think therefore, you — at least on the outer limits, we’ve narrowed the controversy between you.

Matthew L. Danahar:

That’s correct.

Arthur J. Goldberg:

Mr. Danahar, I suggest that you both (Inaudible)

Matthew L. Danahar:

I would be interested in that case, Your Honor.

Arthur J. Goldberg:

(Inaudible)

Matthew L. Danahar:

In summary, I would just like to say that in the absence of diversity, it is the position of the respondent that maintenance and cure claim is not properly triable to a jury on the civil side of the federal court, that pendency of policy considerations notwithstanding the District Court, does not have the power to extend this right to a jury trial in his maritime claim for maintenance and cure.

Earl Warren:

Mr. Friedman.

Theodore H. Friedman:

With the Court’s permission, I would like to respond to a couple of points and particularly to point out the following.

The petitioner here appeared and entered the federal court through the state door.

Granted, he had the right to come in through the admiralty door.

He chose to come in through the state door.

By coming in to the state door, and I’ll speak in a moment of Simler v. Conner and its effects on this situation.

But holding that to a side for the moment, I submit that this Court has held on numerous occasions, and I refer specifically to the decision of Mr. Justice Black in Madruga against the Superior Court of California, and noted that in admiralty matters, notwithstanding the Constitution, Article 3 seems to suggest that there is exclusive jurisdiction of admiralty matters.

What really is the fact is that there is concurrent jurisdiction of the state courts and of the federal courts.

Accordingly, this petitioner was within his rights to claim and he is within his rights here and now to argue to this Honorable Court, that he had a state common law right, notwithstanding that it is an event that occurred on the navigable waters and is in that sense, drenched with the maritime.

There is a common law and a long history of common law claims, notwithstanding it comes from the maritime.

The only maritime exclusively admiralty and maritime proceeding that exists, as was held in Madruga and in other cases, are the in rem proceedings against the offending vessel or thing and in personam judgment, a suit for money is permissibly, notwithstanding that it arises from the navigable waters, a state common law claim, if it be such.

Now, I understand the majority’s opinion of this Court in Romero to be to the effect that there is a “common law” law of the maritime controllable by this Court in the sense that it must be uniform throughout the country.

Theodore H. Friedman:

In that sense, it is nationally administered but nevertheless, in its origins, it comes from the state common law.

It was the minority ruling to apply — the minority in Romero.

There’d be no question this man had a jury trial.

He’d be in the Court under 1331 of Title 28.

But under the majority opinion, in applying Romero —

William J. Brennan, Jr.:

Well, I think in a sense, suggested independently that 1331 point that probably a jury trial is required where joined with a Jones Act case, could it?

Theodore H. Friedman:

Well, that’s our position here, sir.

Now, I just want to —

Potter Stewart:

But the fed — but your — accepting everything you say about his right of action in a state court and a right to a jury trial there, a federal court is a court of limited jurisdiction and the jurisdiction in this case was invoked, the admiralty jurisdiction of the federal court was invoked, was it not?

There was no —

Theodore H. Friedman:

With all respect, Your Honor, that is the basic point I want to make and the answer there is no.

Potter Stewart:

Tell me why.

Theodore H. Friedman:

That is the basic point I want to make.

He came in on a pending jurisdiction theory, assuming that he hadn’t — he didn’t have diversity of citizenship, holding that to the side.

Potter Stewart:

Right, right.

Theodore H. Friedman:

He claimed, just as a man with a copyright and an unfair competition case, the classic Hurn v. Oursler case.

He has a federal claim under the Copyright Act and the unfair com — this man had a federal claim under the Jones Act.

Potter Stewart:

Right.

Theodore H. Friedman:

He claimed that he had a substantially related claim under maintenance and cure.

He claims that that is a state claim under the common law.

It may also be a federal admiralty and maritime claim but it’s also a state common law claim.

He alleges it, appended to his federal substantially related Jones Act claim.

He is therefore entitled to walk in the door with his substantially related claim.

That’s the tail to the dog.

(Inaudible)

Theodore H. Friedman:

Well, from the majority opinion in Romero, from the various decisions cited to this Court, it is historical that the claim for maintenance and cure arises out of the common law.

This is what this Court decided in Romero.

Potter Stewart:

You mean, it’s a savings act claim.

Theodore H. Friedman:

Excuse me?

Potter Stewart:

It’s the savings clause claim —

Theodore H. Friedman:

Yes.

Potter Stewart:

— is what you’re saying.

Theodore H. Friedman:

Thank you, Your Honor, yes.

It is exactly, it’s a savings law claim, a clause claim.

It is one of those common law claims that existed prior to the Judiciary Act of 1789, historically triable in the state courts to a jury and was saved to suitors under the Judiciary Act of 1789.

(Inaudible)

Theodore H. Friedman:

Well, this is what this Court said in Madruga, that the fact that it is maritime doesn’t mean that it is not state common law.

That is the — I hope that that —

William J. Brennan, Jr.:

Isn’t that the whole burden of the savings clause, that even if it is a maritime claim, it was the kind of thing that was actionable in common law and, under the savings clause, is actionable in states?

Theodore H. Friedman:

Yes, if I may adopt Your Honor’s words, it is both, a maritime and a common law claim, if that it was what Your Honor is saying.

At least —

Was this action for common law?

Theodore H. Friedman:

Well, as to that, as I unders —

That was my question.

Theodore H. Friedman:

Mr. Justice Harlan, if I may respond this way.

Not that our agreement, counsel’s agreement, is in any way binding on the Court, but the answer to the diversity of citizenship proposition could not be what counsel have agreed it to be if there wasn’t a state common law basis for the maintenance and cure claim because if there isn’t such a basis, then diversity of citizenship would not apply and it could not enter the federal court as a diversity of citizenship case because that principle applies only to state common law claims.

(Inaudible)

Theodore H. Friedman:

Well, yes, Your Honor.

I refer to Leon v. Galceran, cited below, dealing with wages but honoring wages to the end of the voyage is — well, I submit, Mr. Justice Harlan, is not in any sense different than maintenance and cure.

It comes — it springs from the same birthplace and is the same right of a seaman.

The seaman injured aboard ship in the course of employment without proving negligence or unseaworthiness entitled to three things: maintenance, cure and unearned wages, from the laws of Oleron, etcetera, and that’s all the same thing.

Now, Leon v. Galceran deals with it specifically, Garrett v. Moore-McCormack in passing and if I may refer to just one point that I would like to say before my time runs up, and that is this.

The aspect of whether it’s pending and now that we are — the moot question, I submit, (a) that you have to decide as was pointed out from the bench here, this question when it arose.

And it arose before there’d been any jury verdict.

But also, I would like to direct the Court’s attention to the fact that in the first cause of action, it was alleged that the plaintiff was injured by the failure to pay the maintenance and cure.

Now, unless and until the jury — the trier of the issue of what maintenance and cure would do had decided that so much maintenance was due and so much cure was due for which injuries and for which period of disability, no jury could possibly return a verdict for nil or for thousands as to the effect of the aggravation and the hurt and the consequential damages to this seaman by the failure to pay the maintenance and cure when due.

I therefore submit that if the petitioner here is successful before this Honorable Court —

William J. Brennan, Jr.:

Well, that was a negligent failure to pay, I gather, as a Jones Act claim, wasn’t it?

Theodore H. Friedman:

Yes, Your Honor, and I —

William J. Brennan, Jr.:

Well, wasn’t that decided against you?

Theodore H. Friedman:

No, it was never decided because the jury —

William J. Brennan, Jr.:

Well, did that go to the jury?

I don’t know.

I haven’t read the record.

Theodore H. Friedman:

It did not go to the jury and it could not go to the jury because the trial court, having reserved to himself in subsequent hearings to be held after the verdict of the jury, the question of what maintenance and cure would do —

William J. Brennan, Jr.:

Or did the judge take to himself the Jones Act phase or the negligent (Inaudible) phase?

Theodore H. Friedman:

In effect, he did, Your Honor, and that’s the point.

He said that all main — that maintenance and cure issues were to be decided on evidence submitted to him after the jury verdict.

He uses the very words “after the jury verdict,” and that’s what happened.

And I submit that no jury could’ve possibly considered the question of the failure to pay —

William J. Brennan, Jr.:

Well, are you telling us that it’s still opened, the Jones Act claim, based on negligent failure to pay maintenance and cure?

Theodore H. Friedman:

Yes, Your Honor, and I submit —

William J. Brennan, Jr.:

And the way we’ve limited your —

Theodore H. Friedman:

I submit that your remand should include a direction that if —

William J. Brennan, Jr.:

But we’ve thrown you out on the Jones Act claims here?

Theodore H. Friedman:

You — not allowed me to argue here —

William J. Brennan, Jr.:

Alright, we’re (Voice Overlap) throwing you out.

We just haven’t let you open your mouth yet.

Theodore H. Friedman:

You may see fit on this early discussion to allow a reopening of the petition, I don’t know.

I hope.

But, in any case, I submit that the —

William J. Brennan, Jr.:

Rather than dismiss as incompetently granted.

Theodore H. Friedman:

Well, it truly was not improvidently or incompetently granted.

That I’m sure of but in any case, I say that the denial of the writ on the Jones Act was limited only to the question of the Jones Act claim basically, as it related to the negligence of ordering up — him up the gangway and whether certain evidence have noticed that should’ve been admitted — wasn’t admitted and whether it was probably for the Circuit Court, which held that it was improper to bar the evidence to nevertheless sustain the verdict.

That was the Jones Act claim that was submitted in the petition for certiorari and was not covered but the Jones Act claim, insofar as related to the maintenance and cure issues, has never been submitted.

And, I submit, on the remand if granted, should clearly state rather than us have to argue below that we are now permitted to try all of the issues limited relating to maintenance and cure, whatsoever they’d be, including, if the petition again so show, the negligent failure to pay the maintenance and cure when due and the aggravation and consequential harm which flowed there from.

Potter Stewart:

I would like to ask you about what you think of the effect of Simler against Conner on your argument.

Theodore H. Friedman:

I’m sorry.

I have it here.

I didn’t get to it.

Theodore H. Friedman:

Simler v. Conner clearly held that — also held, in addition to noting this Court’s historic favor, looking at favor upon trial by jury of issues.

Also noted that the basic nature of the claim must be looked to rather than the words of the pleading or the form of which it’s presented.

Potter Stewart:

And you told us that the basic nature of this claim, it’s an admiralty claim and in the federal courts alone would not be triable as of right to a jury.

Theodore H. Friedman:

I surely didn’t hope — intended to say that Mr. Justice Stewart.

What I said was that this is both a maritime and a common law claim, historically triable before a jury in the places and in the Courts where it arose, before there was a Constitution, before there was a federal court, before this great institution existed.

The Courts of the states and the colonies tried this claim before a jury.

That was the basic nature of it.

Looking to the basic nature of it, this Court, whether it apply the state law on the pending jurisdiction theory or the — establish a federal rule looking to the origin and basic nature of the claim, I submit in both — through both avenues, may and should grant a trial by jury and — or viewed from a more modern view point, viewing the policy as conceded here by counsel as to what should be desirable, this Court may and should establish as a policy that these type of claims when joined and when related to the same incident in employment and injuries should be tried with the same jury that decides a substantial —

Potter Stewart:

Well, now, Mr. Friedman, accepting the truth of your historic argument that before there was a Constitution these were triable in the common law courts of the colonies before juries which had a right to trial by jury and further that after the adoption of the Constitution, in the Courts of the state, you had a right to a jury trial in the maintenance and cure claim.

I was —

Theodore H. Friedman:

Yes.

Potter Stewart:

I frankly didn’t know that but I accept — accepting all that is true.

It still remains a fact, does it not, that in the federal trial courts, a claim — an isolated claim for maintenance and cure as a matter of federal law and practice and precedent is not triable to a jury?

Isn’t that correct?

Theodore H. Friedman:

That is correct and — but as to one that is —

Potter Stewart:

In Simler — let me just ask you — my — the reason I asked that is because I want to ask a further question.

Simler against Conner held, did it not, that in a diversity case you apply the federal standard in order to find out whether a person was entitled to a jury trial.

Theodore H. Friedman:

Yes.

But as to the question of what standard or what rule to apply to a maintenance and cure claim which is substantially related and intertwined with a Jones Act claim arising out of the same incident, this I submit, we have no determination from this Court and I submit that policy considerations dictate that it be granted a jury trial.

I also submit that this case was not before the — Judge Levitt on the admiralty side.

It was not an admiralty case.

It was before him as a civil side case all the way from the very beginning.

Thank you and I thank the Court for allowing me the extra time.

Earl Warren:

We’ll recess now.