{dissenting).
Commentators have had occasion to refer to the Jones Act, 46 U.S.C. § 688, passed in 1920, as an example of “impossibly bad drafting.” Gilmore & Black, The Law of Admiralty 282 (1957). But since 1940 “the Supreme Court has been rewriting the law” and the “rewrite job has gone far enough to make it clear that a revolution has taken place.” Ibid. 248. In this process, recovery for personal injuries for unseaworthiness has practically swallowed Jones Act negligence, which remains only as a convenient tag upon which to ground jurisdiction “at law” and trial by jury as granted in the statute. It is now clear that claims based on unseaworthiness and on maintenance and cure may be joined with claims for negligence, and that there is a right of trial by jury on the unseaworthiness claims so joined. Bartholomew v. Universe Tankships, Inc., 2 Cir., 263 F.2d 437, certiorari denied 359 U.S. 1000, 79 S.Ct. 1138, 3 L.Ed.2d 1030; and see Romero v. International Terminal Operating Co., 358 U.S. 354, 380-381, 79 S.Ct. 468, 3 L.Ed.2d 368. Left undecided is the question here at issue, namely whether there is a right to jury trial on the claim for maintenance and cure when joined with a claim for Jones Act negligence.
That this is a serious and troublesome issue is shown by the three different opinions held by us on this appeal. Differences are perhaps natural in view of the clash of policy between safeguarding a cherished admiralty right, long antedating the Jones Act, on the one hand, and the clarity and convenience of the unitary approach now being achieved under that Act on the other. The rationale of that approach seems such as to include all three of the claims we are considering in situations such as here disclosed, and we have concluded that they should be treated alike so far as the form of trial is concerned.
Before analyzing this more carefully we should note that a claim for maintenance and cure may be asserted on quite other facts than those of the accident giving rise to the claims for damages for personal injuries, and the claim may therefore be one remediable only in admiralty. What we are dealing with are overlapping claims arising out of a single accident — the situation here, as expressly alleged in the complaint. Many of the cases cited by my brother FRIENDLY to show the separate nature of the maintenance-and-cure claim are those where there were not overlapping claims or where the defendant did not show that an award so made involved double recovery, while others were those where the parties failed to object to a court trial. It seems that only lately has this problem of duplicating recoveries assumed the importance it deserves. But once perceived, there is no question about the answer and the need to avoid such duplication of recovery. Thus in the second Bartholomew case we remanded specifically for the deduction of such overlapping recoveries, holding the burden on.the defendant to show the amount thereof. Bartholomew *476v. Universe Tankships, Inc., 2 Cir., 279 F.2d 911, 916-917, citing cases such as McCarthy v. American Eastern Corp., 3 Cir., 175 F.2d 727, certiorari denied 338 U.S. 911, 70 S.Ct. 349, 94 L.Ed. 561; Smith v. Lykes Bros.-Ripley S.S. Co., 5 Cir., 105 F.2d 604, certiorari denied Lykes Bros. Ripley S.S. Co. v. Smith, 308 U.S. 604, 60 S.Ct. 141, 84 L.Ed. 505; and Reardon v. California Tanker Co., 2 Cir., 260 F.2d 369, certiorari denied 359 U.S. 926, 79 S.Ct. 609, 3 L.Ed.2d 628. See also Gilmore & Black, The Law of Admiralty 261 (1957). The inconvenience and often error of this duplicating form of trial points to the need for a rule of law preserving the unitary approach to include a claim for maintenance and cure, as well as of negligence and unseaworthiness, all arising out of the same accident. Further, the doctrine of collateral estop-pel will bar relitigation of issues and facts settled in earlier litigation and may thus operate in particular instances even to cut down the jury trial now so thoroughly supported under the Bartholomew principle. See McCarthy v. American Eastern Corp., supra, 3 Cir., 175 F.2d 727, certiorari denied 338 U.S. 911, 70 S.Ct. 349, 94 L.Ed. 561; Runyan v. Great Lakes Dredge & Dock Co., 6 Cir., 141 F.2d 396; La Fontaine v. The G. M. McAllister, D.C.S.D.N.Y., 101 F.Supp. 826.
In the light of these well settled principles it would seem that careful analysis supports the teaching of practical convenience and necessity to the effect that the single claim or cause should be considered at the one trial. As Judge FRIENDLY shows, a presently popular rationale treats the additional admiralty claims as “pendent” to the Jones Act claim “at law” for negligence. See Bartholomew v. Universe Tankships, Inc., supra, 2 Cir., 263 F.2d 437, 448, certiorari denied 359 U.S. 1000, 79 S.Ct. 1138, 3 L.Ed.2d 1030; Romero v. International Terminal Operating Co., supra, 358 U.S. 354, 380-381, 79 S.Ct. 468, 3 L.Ed.2d 368; Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 331, 81 S.Ct. 6, 5 L.Ed.2d 20. Another approach is that of Judge Lumbard in the first Bartholomew case, 2 Cir., 263 F.2d 437, 448, that the Jones Act itself should be construed as broad enough to include all these claims in its aegis. These are but differing ways of stating the same result, which goes back to “the fundamental singleness of the underlying claim” where “the legal theories differ somewhat,” but “from the standpoint of the parties the facts all exist as a single unit.” Medina, J., in 2 Cir., 263 F.2d 437, 446, 447. To the writer clarity and convenience in thinking are promoted by viewing the situation in terms of the single cause of action, the identic factual situation which may give rise to several rights of action or legal remedies. “On any realistic appraisal there should be only one cause of action for jurisdiction and hence for trial. When a seaman has been injured his total claim should not be butchered up. He should be able to put it forward either wholly in admiralty without any right of jury trial, or wholly at law with a right of jury trial on all the issues.” 5 Moore’s Federal Practice 284 (2d Ed. 1951).
This points the way to a logical as well as convenient solution. When the claim for maintenance and cure is based on a cause of action unconnected with that upon which the claims of negligence and unseaworthiness are founded, then the claim must be pursued in admiralty and there is no right to a jury trial. When, however, all the claims are based on the same cause of action, then they must be tried as a unit and the right of jury trial accorded by the Jones Act applies to all the contentions. That is the situation here under the issues tendered by the complaint; and since the plaintiff pressed his claim for jury trial, the court was in error in reserving trial to itself.1
*477The approach we have made accords with the authorities we have cited and is not precluded by any specific precedent, so far as we are advised. True, there is much by way of dicta or lack of discussion or even overlooking of the point, all of which adds to the confusion. Actual decision is scanty to the point of nonexistence. This fact, plus undoubted dicta (in which the writer also has participated), does lend support to the approach of our brothers WATERMAN and SMITH, suggesting that we might still continue to rely upon our past statements, holding maintenance and cure a remedy always available also in admiralty, until the Supreme Court tells us otherwise. But notwithstanding our sympathy for this view, we are constrained to conclude that we must go where reason and practical necessity take us, namely to the unitary form of approach and the resulting trial by jury as we have outlined.
There remains the third approach to this issue, that set forth by Judge FRIENDLY speaking for himself and three other members of the court. We are constrained to hold this the least satisfactory of the three on policy, precedent, and logical analysis. First it is held that, while normally a jury trial may be had of maintenance and cure when jurisdiction is based on diversity of citizenship, such claim was here lost or waived by inadequate pleading or disclosure to the court. This, we suggest, is cavalier treatment of perhaps the most cherished of all procedural rights and is not justified on the record before us.2 No precedent is cited for this novel restriction on the jury trial right. Then it is held that all claims for maintenance and cure not brought in the court’s diversity jurisdiction must invariably be tried to the court. This presents the unusual spectacle of a forced court trial and of course rejects the unitary approach by arbitrary fiat and not for policy or convenience in the large number of cases to which it is applicable.3 The result is necessarily a rigid compartmen*478talized system where jury trial must be had in some of the cases, and court trial in others. Since this division is unconnected with the practicalities of the situation, since in this type of case it is easy to overlook the citizenship of the parties where the Jones Act is the primary source of federal jurisdiction, we must necessarily expect reversals based on form rather than substance.4 We fear the unsatisfactory results which will ensue from this novel formalism in the general maritime law.
Our conclusion therefore is that the district court erred in depriving the plaintiff of his asserted right to a jury trial of his entire cause of action. The judgment should therefore be reversed and the action remanded for a trial to the jury.
. Seemingly the scholarly commentators support the unitai’y approach and trial by jury as the preferred course. See Currie, The Silver Oar and All That: A Study of the Romero Case, 27 U.CM.L.Rev. 1, 4-6. 41-51, 58-65, esp. 63-64 (1959);. Kurland, The Romero Case and Some Problems of Federal Jurisdiction, 73-*477Harv.L.Rev. 817, 849, 850 (1960); 73 Harv.L.Rev. 138, 142-146 (1959); 5 Moore’s Federal Practice 284 (2d Ed. 1951); Gilmore & Black, The Law of Admiralty 262 (1957).
. This is based in substance upon the failure of the complaint to set forth the plaintiff’s citizenship, jurisdiction being there based on the Jones Act. But under modern civil procedure, the jury trial right comes from the Constitution, not the trial court, and such trial being once claimed (as here in the plaintiff’s complaint) cannot be lost unless it is waived by written stipulation or oral stipulation made in open court. F.R. 38(b) (d), 39(a); James, Trial by Jury and the New Federal Rules of Procedure, 45 Yale L. J. 1022 (1936); Clark, Code Pleading 113-122 (2d Ed.1947). There is no requirement that a party must plead in such a way as to warn the court of his constitutional right. Actually here the plaintiff’s counsel in pressing his claim in successive colloquies at the opening of trial cut short by the judge’s adverse rulings made broad contentions quite adequate to cover this issue. Thus he specifically cited jury trials of state actions at law for maintenance and cure. Indeed it is difficult to see how he could have put his claim more inclusively unless he could have foreseen the novel trend my brothers’ opinion was later to take. Rather inconsistently they hold that the claim for jury trial of the issue as pendent to the main issue was sufficiently asserted to require disposition even though “pendent” was never mentioned in the colloquies. Further the court is bound to examine the entire record to see if San Martin’s citizenship was there disclosed, Troupe v. Chicago, Duluth & Georgian Bay Transit Co., 2 Cir., 234 F.2d 253, 257-258, and amendment of the pleadings, even on appeal, is directed by 28 U.S.C. § 1653. See Brooks v. Yawkey, 1 Cir., 200 F.2d 663, 664.
. This appears to be a complete acceptance in this area of the law, and a rejection of our settled rule to the contrary, of the holding in Jordine v. Walling, 3 Cir., 185 F.2d 662, that jury trial of the issue of maintenance and cure constitutes reversible error. This holding, which has been widely criticized by scholars—see the writers cited in note 1 supra, and notably Professors Moore and Currie—has not been followed in the First Circuit, where the practical need of jury trials has been ably set forth by Judge Wyzanski in the-oft-cited case of Jenkins v. Roderick, D. C.Mass., 156 F.Supp. 299, 304-306, following Doucette v. Vincent, 1 Cir., 194 *478F.2d 834, 840, 846. We have cited with approval Professor- Moore’s criticism, 5 Moore’s Federal Practice 281-285 (2d Ed. 1951), supra, of the Jordine case as improperly dividing up a single cause of action, and have never found error in the submission of this issue to a jury, Gonzales v. United Fruit Co., 2 Cir., 193 F.2d 479, 480, n. 1; see also Rosenquist v. Isthmian S.S. Co., 2 Cir., 205 F.2d 486, and McAllister v. Cosmopolitan Shipping Co., 2 Cir., 169 F.2d 4, reversed on another issue 337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed. 1692. A dictum in a footnote in Weiss v. Central R. Co. of N. J., 2 Cir., 235 F.2d 309, 310, n. 1, has occasionally been misread as expressing a preference for court trial of this issue, even though it cited and relied on the Gonzales ease, and only ventured to suggest that the trial judge had also discretion to order a court trial. That suggestion we now believe should be withdrawn for the reasons stated in the text of this dissent.
. The stress placed on the supposed compulsion of F.R.Civ.Proc. 39(c) seems out of place, for the rules provide only a procedure for working out the substantive rules of trial elsewhere stated, as in the Constitution or statutes. If a trial judge does take a jury verdict when he is not required to do so, error cannot be assigned on his action. Hurwitz v. Hurwitz, 78 U.S.App.D.C. 66, 136 F.2d 796, 799, 148 A.L.R. 226; Rath v. Wilgus, 110 Neb. 810, 195 N.W. 115; Groome v. Steward, 79 U.S.App.D.C. 50, 142 F.2d 756; Clark, Code Pleading 90, 102, 106, 107 (2d Ed. 1947).