(dissenting).
I find that I am not able to concur in the statement of the general maritime law which is made the basis of the decision in the opinion of the majority of the court in this case. The holding is that the failure to sufficiently instruct an inexperienced seaman in the duties to be performed by him constitutes negligence in the performance of a non-delegable duty owing by the shipowner, and that compensatory damages (as distinct from maintenance and cure) can be enforced by a libel in rem against the ship although there is no 'finding of unseaworthiness or defective appliances, or refusal or neglect to provide maintenance and cure.
The effect of the holding is to establish a new maritime lien not hitherto known in admiralty. I had supposed that the law was established to the contrary by the case of The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 47 L.Ed. 760, decided by the Supreme Court in 1902 and not subsequently modified or departed from so far as I have been able to ascertain. On the contrary, on the particular point, the doctrine of that case has been recently reaffirmed in Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 370, 53 S.Ct. 173, 174, 77 L.Ed. 368, where Mr. Justice Cardozo, speaking for the Court, said:
“By the general maritime law, a seaman is without a remedy against the ship or her owners for injuries to his person, suffered in the line of service, with two exceptions only. A remedy is his if the injury has been suffered as a consequence of the unseawortliiuess of the ship or a defect in her equipment. The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760; Chelentis v. Luckenbach S. S. Co., 247 U.S. 372, 38 S. Ct. 501, 62 L.Ed. 1171; Pacific Co. v. Peterson, 278 U.S. 130, 134, 49 S.Ct. 75, 73 L.Ed. 220. A remedy is his also if the injury has been suffered through breach of the duty to provide him with ‘maintenance and cure.’ ”
The conclusion of the court is reached by extending the liability of the ship, in the situation stated, on the same principle that the vessel and her owners are held to liability for failure to make her seaworthy, or to supply and keep in order proper appliances appurtenant to the ship. This, I think, is an extension of the general maritime law adopted by analogy from the common or municipal law relating to master and servant, and is contrary to previously *950established precedent as to the general maritime law. In Benedict on Admiralty, Vol. I, 5th Ed. s. 15, the law in this respect is succinctly stated as follows:
“The maritime lien, being secret and operating adversely to a ratable distribution of assets among creditors, as well as adversely in many instances to the rights of prior mortgagees and purchasers without notice, is stricti juris, rests in each case on precedent and will not be extended to other classes of cases by construction, analogy or inference.”
For this statement of the law the author cites and is supported by the cases of Vandewater v. Mills, 19 How. 82, 15 L. Ed. 554; Piedmont & George’s Creek Coal Co. v. Seaboard Fisheries Co., 254 U.S. 1, 41 S.Ct. 1, 65 L.Ed. 97; The,Cora P. White (D.C.) 243 F. 246, and The Neptune (C.C.A.) 277 F. 230. And ■ similarly in The Saturnus, 250 F. 407, 414, 3 A.L.R. 1187, it was said by Circuit Judge Hough for the Second Circuit Court of Appeals that:
“Merchant and mariner alike subject the'ir property to the municipal law of every country into which their venture comes, but a maritime lien is as near an approach to jus gentium as can be found in private jurisprudence, and any extension thereof not internationally well founded is to be opposed as jealously as is a denial of its accepted extent.”
And this doctrine has also been recently again stated by the Supreme Court in the case of Plamals v. The Pinar Del Rio, 277 U.S. 151, at page 157, 48 S.Ct. 457, 458, 72 L.Ed. 827, where, after repeating the rule as above stated, Mr. Justice McReynolds adds:
“To subject vessels during all the time allowed by the statute of limitations to secret liens to secure undisclosed and unlimited claims for personal injuries by every seaman who may have suffered injury thereon would be a very serious burden. One desiring to purchase, for example, could only guess vaguely concerning the value.”
The crucial question in this case relates to the remedy rather than the right. It is not merely whether the duty to instruct is, in the abstract, a non-delegable duty owing by the shipowner to the seaman, enforceable in some proper proceeding, but whether, assuming the existence of the duty, compensatory damages for its breach (other than maintenance and cure) constitute a maritime lien upon the ship to be enforced by the peculiar admiralty proceeding in rem, as in this case. In The City of Alexandria, (D.C.S.D.N.Y.) 17 F. 390, 392, Judge Brown said:
“This claim, however, is brought in a court of admiralty by a libel in rem against the vessel; and in such a case the question is not properly whether the analogies of the municipal law would or would not sustain such an action, but whether by the maritime law a lien exists upon the vessel for such a claim. * * * The liability of seamen to injuries of this kind is as old as navigation, and multitudes of essentially similar cases must have occurred almost every year from time immemorial. It would 'seem to be incredible, therefore, that the sea-laws, ancient and modern, should not have indicated the extent of the liability of the vessel or her owners for such injuries. The obligations of the vessel and her owners have, in fact, been defined in nearly the same language in both the ancient and modern authorities.”
I fail to find support in the texts for the proposition now advanced; and the cases cited with regard thereto in the majority opinion do not seem to me to be authority for the position taken. The general statement in the first edition of Hughes On Admiralty, page 183, that “the relation between the crew and the ship or her owners is substantially the same as the relation between master and servant at common law, «insofar as it bears upon the question of torts to the person” is clearly too broad [Crockett v. Brandt (C.C.A.2) 271 F. 415, 418], and was not repeated in that form but much qualified in statement in the second edition of that work (page 204). Cook v. Smith, (C.C.A.3) 187 F. 538 (the only appellate decision referred to) did not arise out of a libel in rem against the ship but .in a limitation of liability proceeding filed in the federal district court subsequent to a suit at law for damages in a state court. It is apparent from the opinion of the Court that the particular question of the existence of the lien on the ship was not specially considered. The case of The Osceola was not mentioned at all. And the District Court cases of The P. P. Miller, 180 F. 288, 290, and McKenna v. Union S. S. Co., 215 F. 284, clearly furnish no authority for the proposition because on the facts- recovery was not permitted, and such expressions as appeared in the opinion with regard to the duty to instruct would seem *951to have been rather assumptions for purposes of the particular case than decisions as to the affirmative existence of the particular rig'ht and remedy. And the latter case was apparently not even a proceeding in rem. The case of The New York (C.C.A.2) 204 F. 764, 765 (which was a case of a libel in rem against a ship) is, as I read it, a clear authority to the contrary. The facts that were involved are quite similar to those in the instant case. It was said by the Court:
“It is the law of the sea that vessel owners are liable for wages, maintenance, and expenses of cure of a seaman injured in the service of the ship, except as a result of his own willful misconduct. There has been gradually added to this well-defined relation, either by statute or by judicial decisions, an obligation of the owners to give 'the seaman indemnity for injuries resulting from unseaworthiness of the vessel or her. equipment. The final utterance of the .‘Supreme Court on the relation of seamen and owners is the case of The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760 (1902). It is inconsistent with many prior and some subsequent decisions. * * * The omission of the libelant’s superiors to tell him where to stand when filling the cup, or to warn him not to straddle the shaft, if negligence, was negligence of fellow servants, for which the owners are not responsible.”
This is not a suit under the Jones Act, 46 U.S.C.A. § 688, by which statute Congress has materially extended the rights of seamen as against shipowners; and it is very clear that the extent of the rights under that particular statute are not enforceable in a proceeding by a libel in rem against the ship. Plamals v. The Pinar Del Rio, 277 U.S. 151, 48 S.Ct. 457, 72 L.Ed. 827. The seaman’s remedy under this statute “may have overlapped his cause of action for breach of the maritime duty of maintenance and cure, just as it may have overlapped his cause of action for injury caused through an unseaworthy ship.” Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 375, 53 S.Ct. 173, 175, 77 L.Ed. 368. But the seaman is required to elect which remedy he will pursue. See Plamals v. The Pinar Del Rio, supra, 277 U.S. 151, at page 156, 48 S.Ct. 457, 458, 72 L.Ed. 827, where Mr. Justice McReynolds said in reference to the Jones Act:
“In the system from which these new rules come no lien exists to secure claims arising under them and, of course no right to proceed m rem. We cannot conclude that the mere incorporation into the maritime law of the rights which they create to pursue the employer was enough to give rise to a lien against the vessel upon which the injury occurred. The section under consideration does not undertake to impose liability on the ship itself, but by positive words indicates a contrary purpose. Sea men may invoke, at their election, the relief accorded by the old rules against the ship, or that provided by the new against the employer. But they may not have the benefit of both.”
The reasons advanced in the majority opinion in support of the conclusion reached are the social desirability for more liberal treatment of seamen, and the need therefor in matter of instruction arising from the increased complexity of the modern ship’s appurtenances. As to the latter, it can hardly be said to have occurred since 1902 when The Osceola was decided and certainly not since the Cortes Case in 1932. And as to the former, it is to be observed that Congress has provided the Jones Act which does not give a lien on the ship.
As Congress has provided a specific new remedy available to the libelant under the Jones Act, it is my view that the decree in this case for compensatory damages should be reversed and the recovery limited to maintenance and cure, or the libel be dismissed without prejudice to the right of the libelant to proceed under the Jones Act, which remedy it appears is still available to him. See Pacific Co. v. Peterson, 278 U.S. 130, 49 S.Ct. 75, 73 L.Ed. 220; Panama R. Co. v. Johnson, 264 U.S. 375, 391, 44 S.Ct. 391, 395, 68 L.Ed. 748.