Desirable as may be the result achieved by the court's decision, it is accomplished, I suggest, by rewriting the statute passed by Congress. I deem cardinal the rule, laid down by the cases, that "in the construction * * * of statutes * * * the intent of the framers * * * is to be sought first of all, in the words and language employed, and if the words are free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation." (McCluskey v.Cromwell, 11 N.Y. 593, 601; see, also, Matter of Palmer v.Spaulding, also decided today, 299 N.Y. 368.) Consonant with that principle, it is settled that we may not read exceptions into a plainly worded statute which is exclusive in terms. (SeePeople v. Rathbone, 145 N.Y. 434; People v. Long IslandR.R. Co., 194 N.Y. 130; Matter of Tishman v. Sprague,293 N.Y. 42, 50.)
It is true that, if we find the Federal Tort Claims Act applicable to this case, the plaintiff, a merchant seaman, will lose his right to sue in the State courts. And it is likewise true that the underlying design was to give many persons injured by the negligent or wrongful act or omission of Federal employees a cause of action which previously they did not possess. It is easy to conjecture that Congress could not have intended to circumscribe the rights of seamen employed on ships of the Government *Page 442 or a governmental agency, it is easy to conjecture that Congress meant to permit this plaintiff to sue in the State courts — but, the question is, what did Congress say about it? In short, did Congress except from the operation of the Act a claim for which a remedy was provided by the Jones Act (U.S. Code, tit. 46, § 688)? If the statute is to be taken as meaning what it says, the conclusion is clear that Congress gave thought to the matter and decided to include within the coverage of the Federal Tort Claims Act all claims against the Government based upon the negligence of a Government employee excepting only those set forth in section 421.
Aware that certain types of claims could be prosecuted under many existing Federal statutes, Congress listed twelve groups of claims and, in section 421, explicitly excepted them from the provisions of the Federal Tort Claims Act. Thus, Congress announced in so many words that "The provisions of this title shall not apply to * * * (d) Any claim for which a remedy is provided by the Act of March 9, 1920 (U.S.C. title 46, secs. 741-752, inclusive), or the Act of March 3, 1925 (U.S.C. title 46, secs. 781-790, inclusive), relating to claims or suits in admiralty against the United States". However, it did not include or mention the Jones Act. That statute is found in United States Code, title 46, section 688, and its omission from the listing of the twelve excepted groups of claims is the more significant, since the two statutes referred to in subdivision (d) have to do with admiralty and maritime claims against the United States and the claims mentioned in subdivision (g) relate to those "arising from injury to vessels, or to the cargo, crew, or passengers of vessels, while passing through the locks of the Panama Canal or while in Canal Zone waters."
Perhaps, Congress was guilty of an oversight in not similarly mentioning "any claim for which a remedy is provided by the Jones Act", but I do not see how we may say so. Though I would read a statute such as the one before us liberally and in favor of persons in plaintiff's class, I see no justification for rewriting it by inserting an exception which — for all we know — Congress may have designedly and deliberately omitted.
However, an affirmance is dictated by another consideration.
The motion to dismiss is directed against the complaint in its entirety. Here, the claim based upon negligence is only one of *Page 443 three causes of action stated in the complaint. The other two causes are for unseaworthiness and for maintenance and cure. In my opinion, those causes of action are good and valid, for I do not believe that the claims upon which they are based are within the reach of the Federal Tort Claims Act. If that is so, then the motion to dismiss the complaint must, in any event, be denied. (See, e.g., Advance Music Corp. v. American Tobacco Co.,296 N.Y. 79; Laster v. Solotaroff, 273 App. Div. 32, 33.)
Accordingly, I would affirm on the ground that the complaint states good causes of action regardless of the validity or invalidity of that cause which is based upon the claim of negligence.
CONWAY, DESMOND and DYE, JJ., concur with LEWIS, J.; FULD, J., concurs in separate opinion in which LOUGHRAN, Ch. J., and BROMLEY, J., concur.
Order affirmed, etc.