Before CHASE, CLARK and FRANK, Circuit Judges.
1. As the evidence sustains the judge's findings on the issues of defendant's negligence and unseaworthiness, we affirm the dismissal of the first cause of action.
2. On the findings, which are not "clearly erroneous," Sperbeck was a seaman. Carumbo v. Cape Cod Steamship Co., 1 Cir., 123 F.2d 991; Sullivan v. United States, 2 Cir., 179 F.2d 924. He was therefore entitled to be paid the expense of maintenance and cure. The evidence sustains the finding that defendant had failed to pay it.
There remains the question of the survival of the claim for the unpaid expense of maintenance and cure which, of course, accrued before Sperbeck's death.*fn1 Judge Coxe has held that such a claim does survive.*fn2 The third Circuit, without discussion, has also so held.*fn3 It has been decided that a hospital can recover from a shipowner, by way of subrogation, the value of treatment of a seaman when the defendant failed to supply it;*fn4 if that is correct, the claim here survived, for usually the same test applies for determining assignability (or subrogation) and for determining survival. We have discovered no other direct authorities (except a dictum in Cortes v. Baltimore Insular Line, 287 U.S. 367, 53 S. Ct. 173, 77 L. Ed. 368, which we shall discuss later).
Absent a statute, the general rule is that claims sounding in contract survive the death of either the obligor or the obligee, while those sounding in tort, if of a "personal" character, do not. These distinctions, it has been said, lack any present rhyme or reason.*fn5 If we turn for light to history, we find that the origin of the non-survival of "personal" tort claims is ancient and obscure.*fn6 Some say that it came about through the careless use by English judges of the maxim "actio personalis moritur cum persona," and that in particular Coke - often disingenuously inventing or misapplying sententious Latin phrases when he lacked good arguments or precedents*fn7 - with unfortunate success popularized his erroneous version of that maxim.*fn8 In part, the opposition to such survival apparently owed much to the erstwhile criminal element of "personal" torts,*fn9 an element not present in contract claims. Perhaps that partly explains the fact that, generally, quasi-contractual claims do not expire with the claimant or the claimee.*fn10 At any rate since the non-survival rule is explicable historically only, not rationally, it would seem that, where no precedent otherwise, requires, the rule should not be extended beyond the realm of torts.
Attempts to fit all the varieties of claims into neat categories, usable for all purposes, have never been satisfactory. Even the crudest of such attempts have never sought to shove into the category of torts all claims that are not contractual; for almost every purpose, it is granted that quasi-contractual ("as if" contractual) claims are not to be classified as torts, and that many claims arising from legal obligations imposed without regard to the intention of the obligated persons are quasi-contractual. Claims based on status seem clearly to be of that sort. To be sure, "status" is an ambiguous, leaky word.*fn11 Some status claims are partly contractual, partly not. This appears when one considers that frequently a contract itself creates a sort of status,*fn12 since it often gives birth to obligations, legally imposed by the courts, for reasons of policy, with the parties to the contract did not intend or contemplate,*fn13 so that many so-called contractual obligations may be viewed as to some extent quasi-contractual.*fn14 Here we come upon something like an unrecognized pun, and should beware of "the flatulencies that gather round the unacknowledged puns of language."*fn15
With that caution in mind, it is important to perceive that the right to maintenance and cure lies on the borderline between "contract" and "quasi-contract": (1) It arises because there is a contract. More than a century ago, Mr. Justice Story, singularly wise in matters maritime, said of this right that it is "a part of the contract for wages, and is a material ingredient in the compensation for the labor and services of the seamen";*fn16 the Supreme Court more recently quoted that statement with approval.*fn17 (2) On the other hand, the Court has said that the right is "implied in law as a contractual obligation," i.e., is quasi-contractual;*fn18 and, noting that the right developed long before modern notions of contract,*fn19 the Court currently emphasizes its status (or "relational") character.*fn20 Certainly such a right does not sound in tort; even more certainly, it never was and is not now founded upon a tort for "personal" injury.*fn21
In Cortes v. Baltimore Insular Line, 287 U.S. 367, 53 S. Ct. 173, 77 L. Ed. 368, a seaman fell ill without fault on the part of the ship, and later died. His administrator sued under the Jones Act, alleging that his death resulted from the ship's failure to afford him proper medical care. No claim was made for the expense of accrued maintenance and cure. This court - 2 Cir., 52 F.2d 22 - held that the obligation to provide cure was contractual, and that non-performance of a contractual obligation could not be deemed "negligence" within the meaning of the Jones Act, which provides that the seaman's personal representative may recover for "injury or death" of the seaman resulting from "negligence." The Supreme Court reversed, holding that the suit could be maintained if, on the facts, there was a causal relation between (a) the negligence in failing to furnish cure and (b) the death. The Court said that a failure to afford cure might yield two rights: (1) A right to the expense of the cure, regardless of negligence;*fn22 this right, the Court indicated in a dictum, would survive death without the aid of a statute. (2) A right, if the breach was negligent, for ensuing harm to the seaman's health; this second right does not survive except by a statute, such as the Jones Act,*fn23 because it is on account of something in the nature of a "personal" tort (i.e., what is sometimes called a "tortious breach of contract.")*fn24
Here the asserted right is the first kind, i.e., for the expense of accrued maintenance and cure, a right which had fully matured while the seaman lived, and which could then have at once been precisely determined in money terms. Surely (as the defendant itself vigorously asserts in its brief) this right did not grow out of a tort or a "tortious breach of contract." For that reason we think inapplicable the New York statute*fn25 keeping alive actions for "personal" torts, despite Just v. Chambers, 312 U.S. 383, 61 S. Ct. 687, 85 L. Ed. 903,*fn26 and although we are aware of the present rather anemic condition of the doctrine of Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S. Ct. 524, 61 L. Ed. 1086.*fn27 For the same reason, we regard as irrelevant the non-survival (other than by statute) of a claim for a seaman's wrongful death,*fn28 since such a claim is for a tort or a "tortious breach of contract."
We have here, then, a wholly nontort obligation, "relational" or status in nature, and thus quasi-contractual but emerging from a contract, an obligation said to resemble closely the equitable duty of a trustee to his cestui or a guardian to his ward.*fn29 As already noted, many quasi-contractual obligations survive,*fn30 including those derived from status.*fn31 So, too, do many claims for breaches of equitable duties.*fn32
Accordingly, believing that, although the death maxim is not yet dead, it should not be given enlarged potency, we hold - on the bases of history, analytic classification, analogy, common sense, reason, and justice - that the claim here did not follow the seaman into his grave.