(concurring).
This case once again raises the difficult issues recently considered by this court in Robert Lawrence Co. v. Devonshire Fabrics, Inc., 2d Cir., 1959, 271 F.2d 402, certiorari granted, 362 U.S. 909, 80 S.Ct. 682, 4 L.Ed.2d 618, certiorari dismissed pursuant to stipulation, 1960, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37. I concur fully in the disposition which the majority makes of this ease, but state my reasons separately since one of the issues involves the significant question as to the scope of federal law and its effect on state courts.
We decided in the Lawrence case that the Arbitration Act passed in 1925 by a Congress which had no reason to foresee the decisions of the Supreme Court in Erie R. R. Co. v. Tompkins, 1938, 304 U. S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, and Bernhardt v. Polygraphic Co., 1956, 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199, involved an exercise not only of the constitutional power to control procedures in the federal courts but also of the authority constitutionally delegated to Congress to regulate interstate commerce and maritime transactions. This decision was not prompted merely by a desire to salvage the Arbitration Act so that it might apply in diversity cases when the Erie doctrine would usually compel recourse to state law; it was based on a conclusion regarding the intent of Con*386gress as culled from the legislative history of the-Arbitration Act. The report submitted by the committee of the House of Representatives which drew up the law expressly found authority for its enactment in the power over federal-court procedures granted to Congress by Article III, § 1 of the Constitution and the substantive powers of Article I, § 8 (interstate commerce) and Article III, § 2 (admiralty).1 Since the Act could not stand after the Supreme Court decision in Bernhardt v. Polygraphic Co., supra) as an exercise of the power to control procedures in the federal courts, the alternative basis of legislative authority became the sole ground 'for invoking the Act in diversity cases. If it is an exercise of the commerce and admiralty powers, the Act must apply not only to litigation in the federal courts but to suits in state courts as well.
We further held, in Robert Lawrence Co. v. Devonshire Fabrics, Inc., supra, that § 2 of the Arbitration Act did not merely render arbitration clauses in interstate commerce and admiralty contracts valid irrevocable, and enforceable in federal arid state courts regardless of state law, but that it also empowered the courts to develop a substantive body of federal law with regard to the interpretation and construction of such clauses. Irrespective of state court decisions regarding the construction of arbitration clauses, all such clauses in contracts coming within the scope of the act must be interpreted in the light of federal de-cisional law.
It is most important, therefore, to define precisely what the limits of the federal law are, since state courts will, in all probability, turn to federal decisions to learn when it is that local law must give way under the Supremacy Clause of the Federal Constitution, art. 6.
Section 2 of the Arbitration Act specifies that it should apply to any written provision in “any maritime transaction” or in “a contract evidencing a transaction involving commerce.” The issue in this case is whether, on the facts before us, the contract to paint buildings in Florida was one “evidencing a transaction involving commerce.”
Notwithstanding the finding in Lawrence that “Congress intended to- use to the fullest possible extent its powers to regulate commerce as it was affected by arbitration agreements,” the legislative history of the Arbitration Act of 1925 reveals little awareness on the part of Congress that state law might be affected. See Note, 69 Yale L.J. 847, 863 (1960). Having no clear mandate from Congress as to the extent to which state statutes and decisions are to be superseded, we must be cautious in construing the act lest we excessively encroach on the powers which Congressional policy, if not the Constitution, would reserve to the states. It may be a close constitutional question indeed whether Congress could regulate arbitration provisions in all contracts “affecting commerce” or between persons “engaged in commerce” as these phrases have been defined by countless cases under the National Labor Relations Act, § 10(a), 29 U.S.C.A. § 160(a), or the Fair Labor Standards Act, §§ 6(a), 7(a), 29 U.S.C.A. §§ 206(a), 207(a). See e. g. Mitchell v. H. B. Zachry Co., 1960, 362 *387U.S. 310, 80 S.Ct. 739, 4 L.Ed.2d 753, and cases there cited. The majority in this case does not suggest that the Arbitration Act be read so broadly. Judge Moore finds however, that the quantity of interstate commerce actually engaged in was sufficient to bring the contract before us within the area which Congress wished to affect. I agree, but my conclusion is based not on what in fact happened, but on what was in the contemplation of the parties as manifested in their written agreement.
The language of § 2 of the Arbitration Act might suggest that the test to be applied is a formalistic one. The statute does not purport to affect arbitration provisions in all contracts involving commerce; it puts its stamp only on such provisions when incorporated in contracts evidencing a transaction involving commerce. Were it not for the broad remedial purpose of the statute and for contrary indications in the legislative history,2 we might be justified in limiting the effect of the act to only those contracts which, on their face, reveal that some interstate transaction is to take place. In view of the decision in the Lawrence case, the advantage of such a rule would be that it would restrict the number of cases in which federal rules concerning the interpretation of arbitration clauses would be imposed upon essentially local transactions.
Even presuming that Erie and Bernhardt could have been anticipated, however, it is unlikely that Congress would have wished so to limit the effect of the act. Contracts of parties unaware of the judicially pronounced rule might then fall outside the scope of the act although the activity demanded by these contracts might involve substantial interstate traffic. The rule of construction should be based on some more realistic appraisal of the ends Congress wished to serve.
In enacting the Arbitration Act, unlike various other statutes invoking the interstate commerce power, Congress was not seeking to regulate and control- activity affecting commerce, but was providing for those engaged in interstate transactions an expeditious extra-judicial process for settling disputes. The Arbitration Act may be avoided entirely by those engaged in interstate traffic if they merely refrain from including any arbitration provisions in their contracts. The Congressional intent was not, therefore, to impose an adjudicative system on those who wished none nor was the intent to affect all contracts possessing certain interstate elements; the purpose of the act was to assure those who desired arbitration and whose contracts related to interstate commerce that their expectations would not be undermined by federal judges, or, since the clarification in Lawrence, by state courts or legislatures. See American Airlines, Inc. v. Louisville & Jefferson County Air Board, 6 Cir., 1959, 269 F.2d 811.
The significant question, therefore, is not whether, in carrying out the terms of the contract, the parties did cross state lines, but whether, at the time they entered into it and accepted the arbitration clause, they contemplated substantial interstate activity. Cogent evidence regarding their state of mind at the time would be the terms of the contract, and if it, on its face, evidences interstate traffic, such as did the shipment from New York to Massachusetts in the Lawrence case, the contract should come within § 2. In addition, evidence as to how the parties expected the contract to be performed and how it was performed is relevant to whether substantial interstate activity-was contemplated.
*388In this case, at the very top of the written contract between the parties was the following designation:
Name of Job
Armed Services Housing Project Homestead Air Force Base Homestead, Florida
The body of the contract named one of the subcontractors as “Metro Industrial Painting Corp. of 404 Exterior Street, Borough of Manhattan, New York, New York.” When taken together with the uncontradicted statement in the affidavit submitted by the President of the Metro Corporation that at least 20% of the men working on the project were transported from New York to Florida, and that the main supervisory forces were from New York, it appears reasonably clear that the parties anticipated substantial interstate traffic. The trips made by supervisors must have been foreseen, as well as the interstate transportation of some of the working force to Florida. The contract was, therefore, one “evidencing a transaction involving commerce,” it came within § 2 of the Arbitration Act, and federal law controlled construction of the arbitration clause.3
The fact that it is necessary for one party to cross state lines in order to fulfill obligations arising out of the contract should not by itself bring the arbitration clause within the reach of the federal statute. See Conley v. San Carlo Opera Co., 2 Cir., 1947, 163 F.2d 310, affirming D.C.S.D.N.Y.1946, 72 F.Supp. 825. The Arbitration Act should apply only when the parties know or have reason to believe that the performance of the contract will require substantial interstate movement. Cf. Tejas Development Co. v. McGough Bros., 5 Cir., 1947, 165 F.2d 276.
. The House report contained the following language:
“The matter is properly the subject of Federal action. Whether an agreement for arbitration shall be enforced or not is a question of procedure to be determined by the law court in which the proceeding is brought and not one of substantive law to be determined by the law of the forum in which the contract is made. Before such contracts could be enforced in the Federal courts, therefore, this law is essential. The bill declares that such agreements shall be recognized and enforced by the courts of the United States. The remedy is founded also upon the Federal control over interstate commerce and over admiralty. The control over interstate commerce reaches not only the actual physical interstate shipment of goods but also contracts relating to interstate commerce.” H.R.Rep. No. 96, 68th Cong., 1st Sess. 1 (1924).
. It appears that the language reading “evidencing a transaction involving” was added to the bill without explanation by a Senate committee, S.Rep. No. 536, 68th Cong., 1st Sess. 1 (1924). The bill had previously read, “In any maritime transaction or contract or transaction involving commerce.” The committee’s intent was apparently 'to improve the language of the act and not to effect a substantive change.
. Even if the contract were not held to be one “evidencing a transaction involving commerce,” the reference to arbitration would still be proper under New York Civil Practice Act, § 1450. Although arbitration is held substantive for Erie purposes, Klaxon Co. v. Stentor Elec. Mfg. Co., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477, requires us to look to the New York rule on conflict of laws in deciding whether to apply New York or Florida law to the arbitration clause of the contract. New York might under Auten v. Auten, 1954, 308 N.Y. 155, 124 N.E.2d 99, 50 A.L.R.2d 246, apply Florida law in interpreting various provisions of the contract before us. But whether a dispute comes within an arbitration clause would, under New York conflicts law, relate to the “law of remedies,” and the question would be governed by the law of the forum. See Matter of Gantt, 1948, 297 N.Y. 433, 79 N.E.2d 815, 818. The Gantt case indicates that arbitration is considered by the New York courts as merely an alternative method of deciding facts, and the reference to arbitration is, therefore, procedural for conflict-of-laws purposes. The clause in this case, under New York decisions, would clearly cover the dispute with regard to delays in performance. See In re Iino Shipbuilding & Engineering Co., 1958, 6 A.D.2d 159, 175 N.Y.S.2d 750; Application of Potter, Sup.Ct. 1956, 2 Misc.2d 515, 149 N.Y.S.2d 641, affirmed 2 A.D.2d 816, 155 N.Y.S.2d 775; Straight Line Foundry & Mach. Corp. v. Wojcik, Sup.Ct.1959, 204 N.Y.S.2d 29; Fabrox Corp. v. Winard Sales Co., Sup.Ct.1950, 23 Misc.2d 26, 200 N.Y.S.2d 278.