Kossick v. United Fruit Co.

RESPONDENT:United Fruit Co.
LOCATION:Trailways Bus Terminal

DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 365 US 731 (1961)
ARGUED: Feb 20, 1961
DECIDED: Apr 17, 1961

Facts of the case


Audio Transcription for Oral Argument – February 20, 1961 in Kossick v. United Fruit Co.

Earl Warren:

— Kossick, Petitioner versus United Fruit Company.

Mr. Rassner.

Jacob Rassner:

Mr. Chief Justice, Justices of the Supreme Court.

The question upon which we seek instruction is just to what extent a ship owner owes a seaman the duty of maintenance and cure and whether or not the obligation may be terminated or delegated.

The court below has held that a ship owner’s obligation to treat its sick or injured seamen is delegable by the expediency or by the method of tendering to a seaman a so called master certificate which is a paper signed by what the master, or one of the other officers, notifying a marine hospital that the bearer of that paper is eligible for treatment.

We hold that such decision is contrary to the authorities treating with the subject.

We believe that a ship owner’s obligation for maintenance and cure just does not ceased by a mere tender of a piece of paper nor that they can delegate it by saying to somebody else, a marine hospital, “Gentlemen, this is your problem from here on.

We’ve given a piece of paper to our seaman.

We wash our hands of further obligation.

It’s your duty.”

Another question which I think has been met and discussed many times by Judge Learned Hand as I’ve pointed out in my brief and I do not intend to repeat that which I have covered in the brief and by this Court that when we are dealing with a maritime composition, state law will not be permitted to alter, diminish or abolish the rights given to seamen.

There has been a great deal of talk about seamen now being represented by unions and they do not need the protection of the courts as wards of the Court.

But realistically and based on over 35 years of experience, I still consider them as just big overgrown boys, children, they need protection now just as much as years ago.

They —

William O. Douglas:

I have to pursue the petition — what happened below?

Jacob Rassner:

The plaintiff, the petitioner here was a chief steward working for the United Fruit Line.

He had a goiter.

He had an illness and he retained Dr. Fricke as his surgeon to treat it.

He had had some experience with the marine hospital and was fearful of going back not knowing whether he’d get internist, a learner, a student or some experienced doctor to treat him.

He’d had some minor ailments in the past and was quite fearful.

He went to the United Fruit Line and said I will pay for my own doctor.

I’ve already retained him and I set forth the names of the people in debates in the amended complaint and in answers to interrogatories.

The United Fruit Line said, “You will not be permitted to hire your own doctor or we will stop your maintenance.

You go to the marine hospital.”

Obviously, the point was that if he went to his private doctor, his maintenance would continue because he does not get maintenance while in the marine hospital.

He wanted his maintenance.

He had no means.

He had no choice of freedom of bargaining.

So he discharged his own doctor and went to the marine hospital.

He says that but for a promise by the United Fruit Line to indemnify him for any damages, they had a lot of conversations, many and the substance of it was if there is anything that befalls you by reason of faulty treatment or lack of treatment, we will compensate you for all your damage or loss.

Jacob Rassner:

That was not in writing.

The court below, the trial court was a District Judge, Judge Bicks, held that the Statute of Frauds barred the action on the contract made by the United Fruit Line with the chief steward to the effect that the United Fruit Line would indemnify him for damages.

William O. Douglas:

And by New York law.

Jacob Rassner:

Yes and we take the position that this is a contract.

Call it by whatever terms, whatever material may be spoken of, it is still a contract, it is still a seaman’s contract and it is still subject to the scrutiny given to a seaman’s release.

Now that the same scales of justice should be employed in measuring the circumstances under which that contract was entered into.

But for the Statute of Frauds of the State of New York, the decision, both in the District Court and in the Circuit Court of Appeals asserts in substance that the petitioner will have a malt — a valid cause of action for the maltreatment at the marine hospital.

Potter Stewart:

Mr. Rassner, is there any claim at all that the petitioner’s original condition was the result of any breach of duty on — on the part of —

Jacob Rassner:

No, Justice Stewart, there is not.

Potter Stewart:

Just the illness and the —

Jacob Rassner:

That is true.

And our amended complaint paragraph 19 on page 5 shows that we did allege that he was not treated properly because his maintenance was just cut off and he had no freedom of action, no choice of selecting his own doctor whom he had selected.

Now we take the possession that the New York Statute of Frauds which curtails his rights, is no different in the law is applicable to relations generally.

You do not judge seamen on the basis of state law when you treat with a contract called a release and I do not see why this type of contract falls on any different category.

That’s my personal view on it.

Now, insofar as the argument and I did not ask for time to rebuttal, I know what the arguments are by Mr. Eugene Underwood that in so far as other States, 50 States have similar statutes that doesn’t make any difference because they may have similar statute as to seamen’s releases.

We’re dealing with a maritime tort.

Now, the — to let the court below —

Maritime tort you say is (Inaudible)

Jacob Rassner:

Maritime tort which illegibly — which that the tort is the failure to given the treatment a breach of contract is failing to give in his maintenance and cure.

So, whether we deal with maritime tort or maritime contract, we’re dealing with maritime law and state law should not be permitted, to court — curtails.

Charles E. Whittaker:

(Inaudible) this is a Court Act, not a (Inaudible) form of contract.

Jacob Rassner:

The choice of expression was ill advised.

I should have — I should have read — just refer to the breach of contract.

There was a tort involved in the way the complaint is drawn, failure to give him cure and treatment, failure to give him his maintenance was at tort.

But we are primarily consigned with the contract at this particular discussion of his rights.

We take the position that the contract for maintenance and cure and I do not believe there is any room for rebuttal or refuting that contention, it is maritime.

It’s part of the wages of the seamen and I think this Court has expressed it any number of cases including the last six or seven that came down dealing with seamen.

I have reference to the Mitchell case, (Inaudible), I have reference to the Romero case and several of the others treating with and (Inaudible) all treat with the fact that a seaman’s right to maintenance and cure is part and parcel of his contract of employment.

Now, if we make a distinction between the responsibility and the end result, we are taking a maritime contract and chopping it into pieces.

Jacob Rassner:

If he is entitled to maintenance and cure, he is entitled to it by reason of his employment, his contractual relationship to the ship.

If something is substituted for it, I do not believe that that creates a cleavage.

If they substitute a promise to give him money on shore for the obligation of maintenance and cure, which is certainly ashore most of the time, if not always, I do not see where the learned court below was justified into the conclusion.

This was a contract to be performed ashore.

It doesn’t make the slightest bit of difference in my humble opinion where it was to be performed.

Felix Frankfurter:

(Inaudible) position of the lower court that it was to be performed ashore, what you have to attack is that the duty to provide cure wasn’t satisfied because the opinion as I read it below rests on the composition that the contract followed the satisfactory of the obligation to provide cure of it.

Jacob Rassner:

It is most —

Felix Frankfurter:

And therefore, what you have started out was — and seems to me to be the gravamen of the case namely that did not satisfy the requirement of the cure.

Jacob Rassner:

I read the part of the lower court’s decision of page 22 of the transcript the above four or five lines down.

Nevertheless, it is obvious that it applies only to maritime contracts.

The contract sued on is not maritime contract since it was merely a promise to pay money on land if the former seems to be —

Felix Frankfurter:

Well, money is a vital thing but, to pay money and — but go on read the rest of it.

It clearly said that the obligation to provide cure satisfy — I take it —

Jacob Rassner:

Oh, that is another point of error which we urge that the mere giving of piece of —

Felix Frankfurter:

That is another point.

If that is right, if there was a satisfaction of the duty to provide cure, then this is a subsidiary thing that the — they said whether — whether the old case in 248 is still valid or not, it’s a different situation.

Jacob Rassner:

It is most difficult to counsel to differ with the Justice of the Supreme Court but I respectfully —

Felix Frankfurter:

You would never have that difficulty Mr. Rassner.

Jacob Rassner:

Well, but I do have the difficulty now.

I don’t see if that’s void at all.

I see it as a maritime contract.

No matter what language is used, no matter what substitution was made.

Felix Frankfurter:

Although — although the provision that preceded it, satisfied the requirement of case, is that right?

Is that the difficulty —

Jacob Rassner:

Well, it’s — if we take that as an assumption, then the answer is right.

I don’t think that assumption at all.

I say —

Felix Frankfurter:

I understand that.

But that’s a different —

Jacob Rassner:

If — yes, of course.

Felix Frankfurter:

Alright, we’ll take that assumption.

Jacob Rassner:

Then the answer is yes, it’s satisfied.

Felix Frankfurter:


Then — then, the contact nevertheless is a maritime contract outside of the so-called of New York authority, is that right?

Jacob Rassner:

Yes, sir.

I – I think that the —

Felix Frankfurter:

But I — I — maybe so but it isn’t Erickson case.

Jacob Rassner:

Well, I — I take a great deal of relief from reading the opinion in the Erickson case insofar as eliminating the distinction between whether it’s in writing or whether it’s forum.

And, insofar as (Inaudible) the Statute of Fraud deals only with the distinction.

Is it in writing, is it oral?

I take the — the satisfaction to that extent from the Erickson case, but, my point is — is that being maritime at its very nature.

It can’t change as substituting, a promise to pay on land doesn’t change it.

The second point is, there is a difference between the two bargaining parties.

It is utterly ridiculous to assume that a seaman is going to ask ship owner or for that matter get from him or a claim agent, a written agreement when they substitute something for the right to maintenance.

That’s just is unrealistic.

And when we’re dealing with seamen, we have to be realistic, this Court has so stated.

Then the next question comes like Your Honor, I think wrote in Pisel case.

You have to consider the bargaining positions of both parties.

Here is a man who has actually made an agreement with his doctor to be treated.

The United Fruit Line comes in and says “Don’t do that.

Why go to that expense.

Why put us to that expense in substance.

We think the US marine hospital is good enough anything happens, we’ll make it up to you.”

Now, if that had been in writing, it have a cause of action but who would ever think of getting that writing so in — so my position is this that we have to take a realistic approach.

Unfortunately, I didn’t get this case until several years after the statute against the Government had run.

Felix Frankfurter:

I think that’s the real gravamen of the case.

Jacob Rassner:

Well, that’s the — we — I would have — I wouldn’t have been here otherwise, but we certainly would not have a complaint dismissed.

The point I make is that it’s still maritime.

It just that it isn’t writing.

Felix Frankfurter:

Do you think the argument is over when you say I think it’s maritime where the state law can apply?

Jacob Rassner:


No, I think that the question of the Statute of Fraud is only incidental.

I think that here is a seaman’s action where the more important question is the obligation and I think that that is primarily why we’re here.

To get instruction, how far is the duty of — of a ship owner, how far does it extend?

Does it extend only to the time they give a master certificate or a hospital certificate or does it go beyond that?

Does maximum benefit of pure mean maximum benefit until the seaman is out of their hands and the hands of marine hospital or does it mean what it literally says, maximum cure that the obligation does not die?

It is not sent into limbo when the certificate is given.

The obligation is, if I read it literally is the big maximum cure is the terminating point.

And until then, it is still the ship owner’s obligation regardless of who the individual is that gives the treatment.

There is nobody can argue that the Government hospital was grossly neglectible here.

They gave a man a — I think it was a male nurse, gave this man an anesthetic full strength and burned the anus completely out that he have to have a colostomy done at one side and then neglect him further, that became effected, he have to do a second colostomy on for a simple goiter operation and turned out that the man is ruined for life as chief steward.

Now, the question is one that presents a legal question.

Where does — that is the main point, where does the obligation stop?

At the issuing of the certificate, can the ship owner say now I wash my hands of it, of every responsibility I have given you a certificate or does it continue until that particular seaman has gotten the maximum benefit of medical and surgical aid in attendance irrespective of who —

Charles E. Whittaker:

Aren’t you talking about the second count?

Jacob Rassner:

Yes, Your Honor.

Charles E. Whittaker:

In that respect?

Jacob Rassner:

Yes, sir.

Now, discontinued a cause of action for maintenance because his maintenance was paid and we did not want a few dollars that was left over standing away of having the question fully presented and we have to take to the other and I voluntarily discontinue the second cause of action so we can have a main issue taken upon appeal.

Otherwise, it would have been premature.

Charles E. Whittaker:

So the second count is not here?

Jacob Rassner:

It is not here in that sense.

It is here in the sense that under the contract that the petitioner entered into with the United States Lines.

The question is one, even to come within the very provisions of the New York Statute of Frauds, because of the obligation was the United States — United Fruit Lines obligation to place distance, then it did not have to be in writing.

Then their promise orally made would be sufficient.

In other words, if the obligation or death is the primsor’s, it does not have to be in writing under the New York Statute.

I’ve quoted it in that brief.

Earl Warren:

Mr. Underwood.

Eugene Underwood:

Mr. Chief Justice and may it please the Court.

I think it might be helpful to say a few words at the outset as to what is not involved in this case.

Eugene Underwood:

Mr. Rassner has said and I say this somewhat in passing but this man has been ruined for life.

There’s nothing in the record about this.

This case came up from a decision on a motion but the fact is that he has been employed quite frequently in recent times on board United States Lines vessel as a chief steward.

As to what is not involved in this case, there is no question about the duty of maintenance and cure being delegable or not delegable.

This was not held below.

Neither court below discussed or decided such a question.

The suggestion seems to be that it’s the duty as part of cure for the ship owner to the stand over the medical man and supervise the medical man’s attentions to the patient.

This has never been held by any court anywhere.

There is no question upon seaworthiness or negligence in this case.

There is no question as to liability or any breach of duty on the part of this defendant.

The only question is one of contract.

Indeed, there is no question of maintenance and cure as such.

That cause of action has been discontinued.

To correct a statement, Mr. Rassner made, no maintenance was ever withheld in this case.

There is no suggestion of that in the record and I have brought here for display as may be needed this man’s original receipts for a maintenance that was paid to him over the months that follow.

There is not therefore any question in this case of maintenance and cure at all.

The only question —

Felix Frankfurter:

Would you mind stating it again why there is no question of cure?

Would you mind stating it again?

Eugene Underwood:

Yes, sir, yes, sir.

Because cure was supplied by giving the master’s certificate to a public health service hospital which this defendant had reason to believe was a competent public institution.

Felix Frankfurter:

But as I understand, that is a challenge isn’t it Mr. Underwood?

Eugene Underwood:

I can’t quite tell.

I would much rather have Mr. Rassner speak for himself if Your Honor please.

He challenges great many things, sometimes more and sometimes less one time or another.

However, if that —

Felix Frankfurter:

What do you say on the merits whether making appropriate provision for his entering — entering into then marine hospital, does that take care of the obligation to furnish cure?

Eugene Underwood:

I — I say that it does.

In Calmar against Taylor in 303 US, this Court so held, and I have a brief quotation of it on page 22 of the respondent’s brief.

Charles E. Whittaker:

But are we concerned with that question here?

Charles E. Whittaker:

The second count sought recovery for failure to provide maintenance and cure and it was voluntarily discontinued.

Eugene Underwood:

That is correct, sir.

That is correct.

Charles E. Whittaker:

You’re at the end of it?

Eugene Underwood:

Yes, sir.

In my judgment, in my opinion, it is sir.

The only question in this case is whether or not – or not this alleged oral contract by this defendant which it denies to answer for the debt or default, the possible debt or default of the public health service people if they should per chance, injure this man in the course of administering cure is a valid contract and enforceable and the defense —

Charles E. Whittaker:

(Inaudible) whether it’s a Maritime contracts or not, (Inaudible)?

Eugene Underwood:

Possibly so, that’s one view.

Our view was that the Statute of Frauds controls it and it doesn’t make any difference whether it’s maritime or not because to apply the Statute of Frauds to this contract, if it be maritime would not distort or disarrange the so called uniform admiralty rule.

Felix Frankfurter:

(Inaudible) as I understood you, a minute ago in answering Mr. Whittaker, you said the discontinuance of the second account was a discontinuance of claims for maintenance and cure.

Did I understand it —

Eugene Underwood:

Yes, sir.

I so understand it.

Felix Frankfurter:

But as I understand the — Judge Magruder’s opinion, he said you can’t — didn’t deal with maintenance and cure but just deal maintenance.

The cure point is — your cure point relies on Judge Hawkes’ opinion in Barker, isn’t that it?

Eugene Underwood:

That is — that is the cure point, Judge Hawkes’ opinion in Barker said that that complies with the shipowner’s duty–

Felix Frankfurter:

Which was cited in — which was cited in (Inaudible) wasn’t it?

Eugene Underwood:

Yes, it was sir.

Felix Frankfurter:

So the cure point is definitely by Judge Hawkes in Barker and the maintenance point insofar as it is dealt with, it dealt with by the discontinuance without the prejudice of the second count.

Eugene Underwood:

My recollection is sir that the second cause of action included maintenance and cure and that that has been discontinued.

I can’t put my finger on it on the record.

Felix Frankfurter:

That is what Justice Magruder said.

Eugene Underwood:

But it all — yes sir.

Charles E. Whittaker:

(Inaudible) does say that on record 22 in the last paragraph in his opinion where he says as to the obligation for his maintenance to the (Inaudible) point second count (Inaudible) defendant failed and the (Inaudible) maintenance and cure was in the order of (Inaudible) the second cause of action to discontinue without prejudice and without (Inaudible)

Eugene Underwood:

If the Court please, on page six of the record, in the middle of the page where the second cause of action paragraph 22nd, alleges that it was the duty of the defendant to provide the plaintiff for the expenses in his maintenance and cure.

Now that cause of action was discontinued.

If you’ll refer to page 14 of the record ordered that the second cause of action in the within cause be and herby is discontinued without prejudice and without cause.

Felix Frankfurter:

What I’m suggesting is that Judge Magruder took it distributively or not conjunctively.

Eugene Underwood:

Well, that — that just may be sir.

Eugene Underwood:

But our — our point is that the owner, the ship owner in defending itself against seaman’s claims needs the protection of the Statue of Frauds as much as any class of defendants in the community.

Felix Frankfurter:

What has happened to Erickson since it was decided?

Naturally I don’t think anything has happened in 1919 is in the middle ages but it is usually called old in old case.

What has happened to that case?

Eugene Underwood:

It’s very rarely been cited if the Court please and I have no quarrel with Erickson.

That was a contract between a ship master and a ship owner to serve as master for an indefinite time, more than a year.

Before the lapse of the year had passed, he was fired for failure to perform his duties properly and he sued on the contract.

That’s all.

That was obviously a maritime contract, no doubt about it.

Felix Frankfurter:

That’s really the — that was an agreement for employment as a —

Eugene Underwood:

— as the master of a ship and you could hardly get anything more maritime than that.

Felix Frankfurter:

The local variation certainly would not be tolerated as to that.

Eugene Underwood:

I should think that would be true although the application — the — this Court’s refusal to apply the statute to that case has been criticized by some of the text writers.

Felix Frankfurter:

Anyhow that’s not this?

Eugene Underwood:

No, sir, no sir.

Now, of course to apply the Statue of Frauds to a case of this Court works no prejudice to the uniform maritime rule because there isn’t any uniform maritime rule about what must be and may not or need not be in writing.

And furthermore, all 50 states do have a Statute of Frauds or its very substantial equivalent so that if you do apply each state’s statute, you will get the same result anyway.

Felix Frankfurter:

Is there any maritime law regarding the subject matter of what the Statute of Frauds deals with?

Eugene Underwood:

No, sir except — none that I’m aware of except the statutes that required that seaman’s articles being writing, I know of no other.

Now, this Court has been getting further and further away from the uniformity of doctrine anyway in recent times.

In Standard Dredging Company against Murphy where Mr. Justice Black wrote the opinion, you held at New York unemployment insurance tax must be paid by the employers of maritime workers and the payment of such a tax to New York would not destroy a maritime uniformity.

In a recent case, Huron Portland Cement against Detroit you held at a municipal ordinance requiring certain smoke retarders in tug boats which all already been passed by the inspectors of the coast guard was not violative of the uniformity concept.

In Kelly against Washington several years ago, you held the same way with regard to state inspection of diesel tugs although the Federal Government did not require diesel tugs to be inspected and although the Federal Government had established their (Inaudible) for a system of inspections and exempted them and so on.

It seems to me that the basic, the underlying question in this case and the decision that the petitioner would like to get from this Court is one to the effect that the ship owner is bound to pay for the damages resulting for malpractice even in the case such as this where there is no liability for the original ailment that makes it necessary for the man to seek medical attention.

Now, there is no precedent for such a ruling anywhere, and there are several contrary to it which I referred to in my brief.

In response to Mr. Justice Frankfurter’s questions I’ve already indicated to you that in Calmar, this Court indicated that a limit of the ship owner’s obligation where the man does go to the public health service hospital is to make that available to him by master certificate.

The books are full of cases where the ship owner has been held to have complied with his requirements, fulfilled his duty by providing competent medical attention.

There are I think four cases in the books where the ship owner has provided medical attention by some person or institution which has proved not to be infallible namely where the man has been injured as a result of some malpractice or mistake in the medical institution or at a doctor’s hands.

And uniformly in those cases, the ship owner has been exonerated has not been held liable for that kind of injury or that negligence because it needs one of those cases as here, the ship owner was justified in believing that the medical institution or the medical doctor was licensed and competent.

That’s his full duty.

Felix Frankfurter:

In other words, if there any ill consequences of discharging his duty by way of a public health hospital be left to the local law authority, is that it?

Eugene Underwood:

Yes, sir.

And that —

Felix Frankfurter:

What you’re saying here, what you were arguing here is that this agreement is really an agreement to deal with those consequences which without agreements would be left to the local law.

Eugene Underwood:

Yes and there would be no consequences.

Felix Frankfurter:

But I mean if there is incompetence on the part of surgeon, (Inaudible)

Eugene Underwood:

This man had a perfectly complete and adequate remedy.

He could have sued the United States for this injury that befell him and he had a complete remedy.

Unfortunately for him and it’s very regrettable, he left the time go by but that of course is no reason why the law of maintenance and cure should suddenly and without allowing the industry to be heard on the question would be greatly enlarged to require ship owners to be responsible for the malpractice of any perfectly well-qualified physician or a surgeon to whom it might send a man for treatment.

A ship owner can’t possibly be expected to stand over the doctor or the surgeon and supervise his treatment and that’s what a decision in favor of this petitioner would require.

Potter Stewart:

Well, not quite that, there is a allegation here that you promised that you all — that you promised to do that, that you promised to stand over the physician and make good any harm (Inaudible) commitment?

Eugene Underwood:

Oh yes.

I’ve gone one step behind that.

I say that the opposition in that believe to be perfectly sound as the Court of Appeals thought and I have said that I think what really the petitioner really wants this Court to decide regardless of the promise or the Statue of Fraud or the maritime nature of the contract, I think what the petitioner really wants for this Court to decide is that maintenance and cure is such a broad thing that it includes not only providing or making you available to competent medical attention, but would also includes actual affecting of a cure.

That is what I say has never, never been held.

And if that’s to be the law then I respectfully submit the Congress should be permitted to make it so.

William J. Brennan, Jr.:

Mr. Underwood, is the making of this (Inaudible), is that it?

Eugene Underwood:

Oh no sir, no, sir.

This has a —

Potter Stewart:

— As to this case I suppose it is, isn’t it because it’s —

Eugene Underwood:

Oh, by virtue of the pleadings for the purposes of this argument, yes.

Potter Stewart:

Alleged in the complaint and the –

Eugene Underwood:

yes the purposes of this argument, it is admitted but as Judge Bick said in his opinion, we all think there is a strategem to get around the tort three-year statute.

Thank you.

Jacob Rassner:

I wonder if might my answer to Justice Frankfurter’s questions?

Earl Warren:


Jacob Rassner:

Mr. Justice Frankfurter, you asked us to the Union Fish company case Erickson, Judge Ryebell referred to that case.

I have that on page 7 of my brief and I would like to ask one more point of Mr. Underwood raised which was not taken up in the Statute of Limitations as to the United Food two or three years.

There was nothing to stop them for impleding U.S. Government after the two-year statute had run.

So that the fault could’ve actually be determined at one trial so that a real tort we sought could have been held to account.