Before WATERMAN, FRIENDLY and SMITH, Circuit Judges.
The issue, here presented for the first time in a federal Court of Appeals, is whether the wife of an injured longshoreman can recover for the loss of her husband's consortium caused by negligence of the shipowner or unseaworthiness of the ship. Two other district judges have concluded, as Judge Bartels did here, that she cannot. Bergamaschi v. Isthmian Lines, Inc., 1959 A.M.C. 1862 (S.D.N.Y.); Pruitt v. M. S. Rigoletto, 211 F.Supp. 295 (E.D.Mich.1962). We agree.
Peter and Theresa Igneri, husband and wife, brought this action in the District Court for the Eastern District of New York against Cie. de Transports Oceaniques. Their complaint invoked federal jurisdiction on the basis of diverse citizenship, the Igneris being alleged to be citizens of New York and defendant a foreign corporation. In a "First Cause of Action," Peter Igneri claimed damages for injuries sustained when he was struck by a bale of rubber while working as a longshoreman, in the employ of a stevedoring contractor, aboard defendant's vessel in Brooklyn harbor. The injuries are claimed to be permanent and to include a fracture of the spine with complete paralysis of the lower extremities and bladder; liability was asserted on the bases of negligence by the shipowner and of unseaworthiness of the vessel. In a "Second Cause of Action," Theresa Igneri sought further damages on the ground that "heretofore and for many years prior to this occurrence [she and Peter Igneri] * * * were and still are husband and wife, living together as such and in a happy connubial state * * *" and that as a result of the occurrence she "has been deprived of the services of her husband, Peter Igneri, his companionship, support, love, affection and consortium, as well as all facilities and domiciliary happiness normally enjoyed in normal marriage." Judge Bartels granted defendant's motion to dismiss the second cause of action as failing to state a claim upon which relief could be granted, 207 F.Supp. 236. Subsequently he amended his order to include the statement specified in 28 U.S.C. § 1292(b); we granted a timely application by Mrs. Igneri for leave to appeal, since the appeal presented a question of novel impression which ought be determined at this time so that, in the event of our disagreeing with the district judge, the two claims could be tried together.
(1) We begin by noting our approval of Judge Bartels' overruling an argument by defendant, which indeed has not been seriously pressed in this Court, that Mrs. Igneri's claim must be dismissed because, the action having been brought on the "law side", New York law controls and New York does not recognize a wife's claim for loss of consortium. Kronenbitter v. Washburn Wire Co., 4 N.Y.2d 524, 176 N.Y.S.2d 354, 151 N.E.2d 898 (1958).
Mrs. Igneri's claim is governed not by the law of New York but by the general maritime law. Although she was not aboard ship, it was the impact on her husband, which occurred on navigable waters, that caused the injury to her. Jordan v. States Marine Corp., 257 F.2d 232 (9 Cir., 1958); Pruitt v. M.S. Rigoletto, supra. The same considerations as to the desirability of uniformity that are relevant to the relations between a ship and those who work upon her apply with like force to claims by a worker's wife resulting from an injury to him. Suits by a husband, father, or wife for injury allegedly resulting from a shipboard accident to a family member have uniformly been held to involve maritime torts. New York & Long Branch Steamboat Co. v. Johnson, 195 F. 740 (3 Cir., 1912); Plummer v. Webb, 19 F.Cas. 891, 892-893 (No. 11,233) (C.C. Maine 1827); Pruitt v. M.S. Rigoletto, supra; Westerberg v. Tide Water Associated Oil Co., 304 N.Y. 545, 110 N.E.2d 395 (1953). The wrong to Mrs. Igneri, if any, being maritime, it is unnecessary to do more than cite Garrett v. Moore-McCormack Co., 317 U.S. 239, 244-245, 63 S. Ct. 246, 87 L. Ed. 239 (1942); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409-410, 74 S. Ct. 202, 98 L. Ed. 143 (1953); and Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628, 79 S. Ct. 406, 3 L. Ed. 2d 550 (1959), for the proposition that if the maritime law recognizes a claim such as that here asserted, this could not be defeated by a contrary New York rule.*fn1
(2) Although New York's denial of a claim by a wife for loss of consortium is thus in no way decisive, it does not follow that reference to the common law generally is without relevance. Maritime law draws on many sources; when there are no clear precedents in the law of the sea, admiralty judges often look to the law prevailing on the land. See Gilmore and Black, Admiralty (1957), § 1-16. At least this much is true. If the common law recognized a wife's claim for loss of consortium, uniformly or nearly so, a United States admiralty court would approach the problem here by asking itself why it should not likewise do so; if the common law denied such a claim, uniformly or nearly so, the inquiry would be whether there was sufficient reason for an admiralty court's nevertheless recognizing one. Compare The Harrisburg, 119 U.S. 199, 213-214, 7 S. Ct. 140, 30 L. Ed. 358 (1886). So we turn to the common law.
It was early held, and still is in the great majority of American states, that one who causes personal injury to a married woman, intentionally or negligently, is subject to liability to her husband for loss of consortium*fn2 as well as for any reasonable expenses incurred by him in providing medical treatment. American Law Institute, Restatement of Torts (1938), § 693; see Prosser, Torts (2d ed. 1955), at 701; Note, Judicial Treatment of Negligent Invasion of Consortium, 61 Colum.L.Rev. 1341, 1348-49 (1961). But until 1950 no decision (save for two that were rather promptly disapproved*fn3) allowed a recovery by a wife for loss of consortium resulting from a negligent injury to her husband. Restatement of Torts, supra, § 695; 1 Harper & James, Torts (1956), at 641; Holbrook, The Change in the Meaning of Consortium, 22 Mich.L.Rev. 1, 2-4 (1923). In that year the Court of Appeals for the District of Columbia Circuit, in Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811, rejected the monolithic authority to the contrary and held, under the domestic law of the District,*fn4 that a wife could obtain such a recovery. Since 1950 eight state courts have followed the Hitaffer decision,*fn5 federal courts have interpreted the law of two other states to the same effect,*fn6 and in one state the same result has been achieved by statute.*fn7 As against the 12 American jurisdictions*fn8 which may thus be said to have espoused the Hitaffer result, 19 such jurisdictions,, which have considered the question since Hitaffer, have continued to deny recovery to a wife.*fn9 So also has the House of Lords, Best v. Samuel Fox & Co.,  A.C. 716, without a dissenting voice. However, in a number of these cases the opinions have made it plain, and others have implied, that the court agreed with Hitaffer in principle but felt constrained to leave any "change in the common law" to the legislature.*fn10 The commentator vote has been considerably more favorable to the Hitaffer result than the judicial. We have found only two voices,*fn11 but these notable ones, against the wife's recovery.*fn12
The prime argument for the Hitaffer result is equality between the sexes. Since the husband's cause of action for negligent invasion of consortium is generally recognized, it is said to fly in the face of the modern policy favoring the "emancipation" of married women to deny a corresponding action to the wife, whose "interest in the undisturbed relation with her consort is no less worthy of protection than that of her husband." Prosser, supra, at 704; see Hitaffer v. Argonne Co., supra, 183 F.2d at 819; cf. Bennett v. Bennett, 116 N.Y. 584, 590-91, 23 N.E. 17, 18-19, 6 L.R.A. 553 (1889). The wife's interest in the marital relation having long been accorded legal protection by claims for alienation of affections and similar torts, see Bennett v. Bennett, supra, it is argued that "[relief] is extended to the wife in [these] * * * cases for one basic reason, the interest of society in the protection of the family * * *. If this is the interest to be protected, * * * the law's protection should extend as well to the negligent as to the intentional injury." Montgomery v. Stephan, supra note 5, 101 N.W.2d at 234; see Lippman, supra, 30 Colum.L.Rev. at 668. The "intentional" nature of such torts as alienation of affections is said not to afford a valid reason to "invoke the principle which gives a right of action for an act done malevolently when no right of action would exist if the act were done without malice," since in such torts "there is never that active malevolence toward the plaintiff which is made the gist of the right of action." Holbrook, supra, 22 Mich.L.Rev. at 8.*fn13 Finally, it is urged that the harm done to the wife through serious injury to the husband is undeniably real, if only because "a sick, lame, nervous spouse is less desirable as a companion than a spouse in normal physical condition," Holbrook, supra, 22 Mich.L.Rev. at 8, but more especially when the injury permanently forecloses the wife's opportunity of having sexual relations and bearing children. Hence, it is said, the law should grant the wife such compensation as it can for the harm that she has suffered, and will continue to suffer, through the fault of the defendant.
The opposing arguments begin with the long history of common law authority against the wife's action, see Deshotel v. Atchison, T. & S.F. Ry., supra, 328 P.2d at 451,*fn14 but in no way stop there. It is contended that when the husband sues for his wife's injury, the real basis of his recovery is loss of her services, with the "sentimental" aspects of the recovery being in the nature of "parasitic" damages; since the wife in contrast has no right to her husband's services, but rather is entitled to his reciprocal obligation of support, and since she effectively recovers for this by sharing his own recovery for lost earnings due to his injury, the alleged "discrimination" between the spouses is said to be actually a rational distinction. See Kronenbitter v. Washburn Wire Co., supra, 176 N.Y.S.2d at 355; Best v. Samuel Fox & Co., supra,  A.C. at 735-36 (Lord Reid).*fn15 With loss of services eliminated, the wife's recovery would involve only such elements as the diminution of the value of her husband's society and affection and the deprivation of sexual relations and the attendant loss of child-bearing opportunity - elements which, it is argued, are too personal, intangible, and conjectural to be measured in pecuniary terms by a jury. See Deshotel v. Atchison, T. & S.F. Ry., supra, 328 P.2d at 451; Pound, supra, 14 Mich. L.Rev. at 194, 196. It is feared, moreover, that recognition of a cause of action on behalf of the wife would lead to a "double recovery." The husband in suing for his own injuries may recover not only for lost earnings (part of which recovery presumably goes to support his wife) but also for the impairment of function evidenced by his lost or diminished ability to engage in sexual intercourse, see Jaffe, supra, 18 Law & Contemp.Prob. at 229; cf. Dagnello v. Long Island R.R., 289 F.2d 797, 808 (2 Cir., 1961); Helmstetler v. Duke Power Co., 224 N.C. 821, 824, 32 S.E.2d 611, 613 (1945), and still further, probably, for the value of his wife's nursing services. See McCormick, Damages (1935), § 90. The fear is that in the wife's suit the jury will award duplicative damages to her for some of the same elements of injury. See Jaffe, supra, at 229; Dini v. Naiditch, supra, 170 N.E.2d at 894-896 (Schaefer, C.J., dissenting). It is true that, as Chief Justice Schaefer apparently concedes, see id., 170 N.E.2d at 895, this danger would be minimized where, as in the present case, the husband and wife have joined their claims so that these may be tried to a single jury. But once the wife's cause of action was recognized, the courts would have no power to require such a joinder - see 3 Moore, Federal Practice (1948), at 1808, and 1 Harper & James, supra, at 640 - and it is doubted that the trial court's instructions and its own power, combined with that of the appellate Court, Dagnello v. Long Island R.R., supra, to review verdicts for excessiveness would suffice to remove the danger of double recovery. Other less persuasive arguments are that the harm to the wife through her husband's injury is too "indirect" to warrant recovery, since it was suffered without physical impact or apprehension thereof, Best v. Samuel Fox & Co., supra,  A.C. at 731 (Lord Goddard), and that allowing recovery by the wife would open the door to claims by children of the injured man and others whose "relational interests" were even more attenuated. Neuberg v. Bobowicz, supra note 9, 162 A.2d at 666-67; Best v. Samuel Fox & Co., supra, at 734 (Lord Morton of Henryton). Compare Prosser, supra, at 704.
Finally, in answer to the "equality" argument, it is argued that the husband's recovery for loss of consortium should itself be abrogated. That right is said to be "a fossil from an earlier era," Jaffe, supra, at 229 - an anachronistic remnant of the wife's common law inability to sue and recover damages for her own injuries. Best v. Samuel Fox & Co., supra, at 728, 733, 735 (Lords Porter, Goddard, and Morton of Henryton); Neuberg v. Bobowicz, supra, 162 A.2d at 667. Adopting this view, some states, either by statute or decision, have eliminated the husband's action,*fn16 while others have restricted it to recovery for loss of services.*fn17 Although several commentators approving Hitaffer have indicated that producing "equality" between the sexes in this way would suit them just as well,*fn18 such a solution would be unacceptable to most adherents of that case.
(3) With the common law authorities so conflicting*fn19 and the opposing arguments so nearly in balance, we turn to an inquiry whether the historic common law position or the Hitaffer result comports better with other relevant elements of maritime law.
Defendant contends that the former answer can be rather quickly reached on the basis that the maritime law does not recognize even a husband's right to sue for loss of consortium, so that the "equality" argument is unavailable to the wife. In a District Court opinion in Savage v. New York, N. & H. S.S. Co., adopted by this Court, 185 F. 778, 781 (1911), Judge Hough stated in dictum that "No instance of what is in substance an action per quod consortium amisit has been shown in admiralty." But in the following year in New York & Long Branch Steamboat Co. v. Johnson, supra, 195 F. 740 (3 Cir., 1912), a court created precisely such an "instance * * * in admiralty" by holding that a husband could sue "for the injury sustained by him through said injury to his wife" while a passenger on a steamship; the husband was awarded $1,147, of which $447 was for medical expenses and $700 "for the loss of the aid, comfort and society of his wife * * * including therein probable future deprivation and expenses." (Record on Appeal, p. 237) The decision relied on two authorities, neither entirely relevant. One was the decision by Mr. Justice Story on circuit in Plummer v. Webb, supra, 19 F.Cas. 891, that a father, having a right to the services of his minor children, might sue in admiralty for damages from the tortious abduction of his son while on an ocean voyage. The other, even more dubious, was The Sea Gull, 21 F.Cas. 909 (No. 12,578) (C.C.Md.1865), allowing a husband to recover for his wife's death - a situation in which damages have traditionally been limited to the "pecuniary" loss without the sentimental aspects of consortium, see Michigan Central R.R. Co. v. Vreeland, 227 U.S. 59, 70-74, 33 S. Ct. 192, 57 L. Ed. 417 (1913), Gerardo v. United States, 101 F.Supp. 383, 385 (N.D.Cal.1951), and a decision which was overruled by The Harrisburg, supra, 119 U.S. 199, 7 S. Ct. 140, 30 L. Ed. 358. On the other hand, the dismissal of a husband's action for both medical expenses and loss of society as the result of an alleged assault on his wife during a steamship voyage was affirmed, although without any ...