dissenting.
It may be conducive to a dispassionate consideration of the law of this case to remind ourselves that the plaintiff below unquestionably was covered by the Longshoremen’s and Harbor Workers’ Compensation Act. Nobody questions his right to all that other injured harbor workers usually receive for like injury or to what this plaintiff would receive for the same injuries if suffered under slightly different circumstances. What is in issue here is a bonus recovery over and above the statutory scale of compensation that Congress has established for injured harbor workers in general, which this plaintiff claims only because of special circumstances said to create a liability by a third party, a bareboat charterer we will refer, to as the shipowner.
This decision seems to me to so confuse maritime law with common and statutory tort law as to destroy the integrity of the former as a separate system based on the peculiarities and risks of seagoing labor.
1. Diversity of Citizenship and Pennsylvania State Law.
This case was instituted on the law side of federal district court, the complaint specifically alleging that “jurisdiction is based on diversity of citizenship” and pleading the other requisites of that jurisdiction. After amendment, the complaint alleged both ordinary common-law negligence and lack of seaworthiness against the shipowner. As I shall presently point out, the allegations of negligence could not have been an invocation of the *420Federal Jones Act, which affords to seamen a federal remedy for negligence. It appears to have been an invocation of the negligence law of the Commonwealth of Pennsylvania, in the territorial waters of which the injury was sustained. This may have been permissible because § 9 of the Judiciary Act of 1789, 1 Stat. 76-77, gave the District Courts of the United States “exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction . . . ; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it . . . Under this reservation it would appear that there is considerable room for application of state law, although I do not undertake to guess how much. Cf. Caldarola v. Eckert, 332 U. S. 155.
This being the form of action, the plaintiff had a jury trial. The court’s instructions scrambled common-law negligence doctrines with admiralty principles of indemnity for unseaworthiness.
But, as a diversity action based on the tort law of Pennsylvania, plaintiff’s case must fail because the jury, in answer to special interrogatories, reported that the plaintiff himself was guilty of negligence which contributed 17%% to his injuries. Under Erie R. Co. v. Tompkins, 304 U. S. 64, the law of the state of injury would apply to the case and, under Pennsylvania law, contributory negligence defeats recovery. Therefore, some other basis must be found to sustain the verdict.
2. Action for Negligence.
The failure of maritime law to afford a remedy for negligence, The Osceola, 189 U. S. 158, was overcome by the Federal Jones Act, 46 U. S. C. § 688 et seq., which provides an action for negligence with jury trial. But this plaintiff’s difficulties, under this Act, were so formidable that his counsel makes no claim that the recovery can rest upon it. Notwithstanding this, case after case *421which was decided under the Jones Act is cited by the Court today, which implies that the Court relies on the Jones Act to help out in some way toward supporting the recovery here. But that Act gives a right of action only against the employer, and this plaintiff was not employed by the shipowner. Moreover, the Jones Act gives its right of action only to seamen, and this claimant is not a seaman.
It is clear that Congress provided the compensation remedy, not the Jones Act remedy, for such a case as this. In International Stevedoring Co. v. Haverty, 272 U. S. 50, this Court attempted to allow recovery by a longshoreman against his employer under the Jones Act. Immediately Congress passed the Longshoremen’s and Harbor Workers’ Compensation Act, which made exclusive, as against the employer, the compensation remedy it conferred on longshoremen and harbor workers. So the Jones Act is not available to support a recovery against this plaintiff’s employer because of provisions of the compensation Act, nor against the shipowner because the Jones Act makes no one liable who is not an employer. Therefore, as a tort action this case cannot be sustained under the Federal Act.
If plaintiff was invoking Pennsylvania negligence law— the ordinary law of the business invitee — he cannot recover because he was contributorily negligent. The only possible basis for recovery is a maritime tort. The question is a tricky and difficult one, resurrecting old cases which involved many aspects of maritime law no longer in force. In any event, the charge below so scrambled two theories of recovery that the jury could not possibly have had a fair understanding of the law of the case. The jury was instructed on the one hand that negligence was not necessary to recovery because of the unseaworthiness theory and on the other that negligence itself was a basis for recovery. The least petitioner was entitled *422to was a submission which would eliminate the confusing doctrine of liability without fault not applicable to the case.
3. Indemnity for Unseaworthiness.
Along with the claim of common-law negligence there was submitted to the jury in this case, as an alternative basis of liability, the claim that the ship was unseaworthy. It is true that a seaman has a right to indemnity or compensatory damages where he can show injury from unseaworthiness of the ship.
As was explained in The Osceola, supra, at 171, this was adopted into our maritime law from British legislation, wherein “in every contract of service, express or implied, between an owner of a ship and the master or any seaman thereof, there is an obligation implied that all reasonable means shall be used to insure the seaworthiness of the ship before and during the voyage.” This obligation was adopted into American admiralty law as a warranty of seaworthiness, of which the owner is not relieved by exercise of due diligence and which rests on wholly different principles from those of negligence. Mahnich v. Southern S. S. Co., 321 U. S. 96, 100. But this case was begun, tried, submitted and decided as a negligence action, while it is sustained here on an admiralty doctrine of liability for breach of warranty which does not at all depend upon negligence.
The principal reliance of the Court is on Seas Shipping Co. v. Sieracki, 328 U. S. 85. That decision advanced a novel holding that the traditional warranty of seaworthiness extended not only to seamen but also to longshoremen. This was a virtual repetition of the Court’s earlier effort in the International Stevedoring Co. case, supra, to give seamen’s remedies to longshoremen, an effort which was promptly rebuffed by Congress when it enacted the Longshoremen’s and Harbor Workers’ Compensation Act *423to preserve the traditional distinction. But a much greater departure than that which Congress rejected must be taken here if the warranty of seaworthiness is to be further expanded to sustain this recovery. There may be some logic in saying that when a longshoremen or stevedore is brought aboard to load a ship, the ship should be fit for sailing. But it seems to me that the extension of this implied warranty to a repair crew which works for an independent contractor is unjustified. The Court can cite no authority for such a holding, and I think there is no logic in it.
This claimant was a carpenter in the employ of a ship repairing company. That company had a contract to make certain repairs aboard this ship and the claimant was sent aboard by his employer, under whose direction he worked. It does not seem to me that one who hires a contracting firm to put his ship in seaworthy condition guarantees that it is in seaworthy condition before the work starts. If everything were shipshape, he would not need the services of the repairmen.
I think that the expansion of the warranty of seaworthiness from a seaman to a repairman is illogical, contrary to any decisional law and not consistent with the scheme of Congress to maintain a sharp distinction between the seafaring man and the harbor worker.
From ancient times admiralty has given to seamen rights which the common law did not give to landsmen, because the conditions of sea service were different from conditions of any other service, even harbor service. The seaman on board a merchant ship ties his fate to that of the ship and joins its separate community for the voyage. Under earlier conditions seagoing labor was extremely hard. Voyages were long, tedious and treacherous. Shipwreck, stranding, capture by pirates, fire, and other eventualities threatened. Scurvy was common, and the ships were little prepared to combat disease. Discipline *424was harsh and cruel, and savage punishments were inflicted. Poor food, cramped quarters, long hours and complete subjection to the will of the master was the rule. While his lot has been ameliorated, even under modern conditions the seagoing laborer suffers an entirely different discipline and risk than does the harbor worker. His fate is still tied to that of the ship. His freedom is restricted. He is under an unusual discipline and is dependent for his food, medicine, care and welfare upon the supplies of the ship. Contrast the lot of this plaintiff who lived at home, was free to leave his employment, took no risks of the sea and had no different condition or hazard attached to his employment than would have attached to a carpentry job in a building ashore.
That the sharp differentiation Congress made in the rights of seamen as contrasted with harbor workers has a basis in differences in risk and working conditions will be apparent from a study of 46 U. S. C., c. 18, which governs merchant seamen. I point out some of the most obvious respects in which this claimant’s position as a land-based laborer, free to bargain, strike or quit, and subject to no extraordinary hazards, differed from that of most seamen (there are certain exceptions) who are employed as a part of the ship’s crew.
The Government superintends the engagement and discharge of seamen and apprentices and the terms and execution of their contract, and provides for their presence on board at the proper time. §§ 545,561,565. A master and the vessel are subject to penalties for taking on a seaman as one of the crew except by virtue of an agreement under such supervision. §§ 567-568,575. But the penalties are not all on the master and the vessel. Every contract must provide the day and hour when the seaman shall render himself on board the ship. If the seaman shall neglect to be on board at the time mentioned without giving twenty-four hours’ notice of his inability, he may *425forfeit for every hour which he shall so neglect to render himself one-half of one day’s pay. If he wholly neglects to appear or deserts, he shall forfeit all of his wages and emoluments. § 576. Unlike the land laborer, the seaman may forfeit his wages if he has not “exerted himself to the utmost to save the vessel, cargo, and stores . . . .” § 592. The seaman may not be paid any wages in advance of the time he has earned the same, and his assignment or allotment to dependents of his wages is restricted. § 599. The seaman is deprived of credit, for no sum exceeding one dollar shall be recoverable from him by any one person for any debt contracted during his service. §602.
It is so important to the seaman that the ship be seaworthy that a majority of the crew may complain that the vessel is unseaworthy or unfit in crew, body, tackle, apparel, furniture, provisions or stores to proceed on an intended voyage and thereupon require an inquiry and a determination, and, if the charge is not sustained and the seamen refuse to proceed, they shall forfeit any wages due them. §§ 653, 655. So dependent are they that the Government provides inspection of the crew quarters, which must comply with standards, §§ 660-1, 660a, and the seamen may complain as to the provisions or water and obtain an examination. § 662.
More importantly, the seaman is not a free man. He may not, as the longshoreman or harbor worker may, protect himself by striking or quitting the job. Desertion, refusing without reasonable cause to join his vessel, absence without leave at any time within twenty-four hours of the vessel’s sailing from any port, or absence from his vessel and from his duty at any time without leave and without sufficient reason, or quitting the vessel without leave after arrival at port and before she is in security, are all punishable by certain forfeitures of his wages. Moreover, at the option of the master, willful *426disobedience to any lawful command at sea is punishable by being placed in irons until such disobedience shall cease, and for continued willful disobedience to such command or neglect of duty the seaman may be placed in irons and four days out of five on bread and water until such disobedience shall cease. To these penalties are added certain other forfeitures. § 701. There is more, but this is enough to demonstrate that Congress knew and respected the difference between the seaman to whom it preserved admiralty remedies plus the remedies of the Jones Act, and harbor workers, such as this claimant, who are given the remedies of the compensation Act, like most other shore workers.
I cannot bring myself to believe that it is either the congressional will or the tradition of maritime law or common sense to mingle the two wholly separate types of labor in their remedies as is being done in this case. There are other questions in the case as to division of the damages which I need not discuss, in view of my conclusion that there is no basis for recovery. I would reverse the judgment below.