Romero v. International Terminal Operating Company/Dissent Brennan

by William J. Brennan, Jr.

United States Supreme Court

358 U.S. 354

Romero  v.  International Terminal Operating Company

 Argued: Oct. 22, 23, 1958. --- Decided: Feb 24, 1959

Mr. Justice BRENNAN, dissenting in part and concurring in part.

I regret that I cannot agree with the Court's holding that § 1331 of the Judicial Code does not give jurisdiction to a Federal District Court, sitting at law, over a seaman's claims against his employer for maintenance and cure and for indemnity damages for injury caused by unseaworthiness, where the claims are asserted in the manner of a suit at common law and the requisite jurisdictional amount is in controversy. I believe that the jurisdictional statute and the logic of the principles of this Court's decisions construing it compel a contrary result. I think the Court's opinion attempts to turn aside the statutory language and the thrust of this Court's decisions with reasoning that is altogether too insubstantial.

The point on which the Court and I are at issue is one which has been much mooted in the Courts of Appeals, and I agree that it is appropriate that a thorough expression of views on it be presented. I propose first to explain why jurisdiction should be sustained under § 1331, and then to offer some reply to specific arguments set forth by the Court which apparently proceed from supposed practical inconveniences that are thought to arise from sustaining the jurisdiction.

The petitioner brought this suit in a Federal District Court. The element in his action with which I am dealing is his claim for money damages from Compania Trasatlantica, his employer, for breach of the shipowner's duty to maintain a seaworthy ship and for maintenance and cure. Since there was no diversity of citizenship between petitioner and Compania Trasatlantica, ^[1] jurisdiction was predicated on the grant in 28 U.S.C. § 1331, 28 U.S.C.A. § 1331 of jurisdiction in 'civil actions wherein the matter in controversy * * * arises under the Constitution, laws or treaties of the United States.' ^[2] Jurisdiction of such claims could have been established on the admiralty side of the District Court since 28 U.S.C. § 1333, 28 U.S.C.A. § 1333 specifically grants jurisdiction in the District Courts in 'case(s) of admiralty or maritime jurisdiction.' The question is whether petitioner can bring this part of his action on the law side of a Federal District Court.

First. In a long series of decisions tracing from Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, this Court has made it clear that, in a seaman's action to recover damages for a maritime tort from his employer, the substantive law to be applied is federal maritime law made applicable as part of the laws of the United States by the Constitution itself, and that the right of recovery, if any, is a federally created right. ^[3] Chelentis v. Luckenbach S.S.C.o., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171; Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834; Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239; Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143. Cf. Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 124-125, 44 S.Ct. 274, 277-278, 68 L.Ed. 582.

It is true that early in our history maritime law was thought to be an international law merchant which was impartially administered by the several maritime nations of the world. This concept was expressed by Chief Justice Marshall's language in American Ins. Co. v. Canter, 1 Pet. 511, 545-546, 7 L.Ed. 242: 'A case in admiralty does not, in fact, arise under the Constitution or laws of the United States. These cases are as old as navigation itself; and the law, admiralty and maritime, as it has existed for ages, is applied by our Courts to the cases as they arise.' But that this did not mean that there was some supra-national law, by which American courts were bound, was made clear by Mr. Justice Bradley in The Lottawanna, 21 Wall. 558, 572, 22 L.Ed. 654, where he said for the Court: '(I)t is hardly necessary to argue that the maritime law is only so far operative as law in any country as it is adopted by the laws and usages of that country. . . .' This teaching was emphasized in The Western Maid, 257 U.S. 419, 432, 42 S.Ct. 159, 160, 66 L.Ed. 299, where Mr. Justice Holmes, speaking for the Court, said: '(W)e must realize that however ancient may be the traditions of maritime law, however, diverse the sources from which it has been drawn, it derives its whole and only power in this country from its having been accepted and adopted by the United States. There is no mystic overlaw to which even the United States must bow.'

The sovereign power which determines the rules of substantive law governing maritime claims of the sort which petitioner asserts here is federal power, speaking through Congress as in the case of the Jones Act, 46 U.S.C.A. § 688, or through this Court in the case of judicially defined causes of action. Southern Pacific Co. v. Jensen, supra. This is an area where the federal courts have defined substantive rules themselves, and have not applied state law. Indeed, it is federal substantive law so created which the States must enforce in such actions brought in state courts, Garrett v. Moore-McCormack Co., supra, and which the federal courts have applied in actions at law in which diversity of citizenship has been relied upon as a jurisdictional basis, Pope & Talbot, Inc., v. Hawn, supra. The causes of action asserted against his employer by petitioner here present 'no claim created by or arising out of (state) law. His right of recovery * * * is rooted in federal maritime law.' Id., 346 U.S. at page 409, 74 S.Ct. at page 205.

Second. Since petitioner's causes of action for unseaworthiness and for maintenance and cure are created by federal law, his case arises under the 'laws * * * of the United States' within the meaning of § 1331, for it is clear that 'a suit arises under the law that creates the cause of action.' Holmes, J., in American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 586, 50 L.Ed. 987. ^[4] The contention cannot be accepted that since petitioner's rights are judicially defined, The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760, they are not created by 'the laws * * * of the United States' within the meaning of § 1331; or, in other words, that only maritime rights created by Act of Congress are created by 'the laws * * * of the United States.' In another context, that of state law, this Court has recognized that the statutory word 'laws' includes court decisions. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. The converse situation is presented here in that federal courts have an extensive responsibility of fashioning rules of substantive law in maritime cases. See Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 314, 75 S.Ct. 368, 370, 99 L.Ed. 337. These rules are as fully 'laws' of the United States as if they had been enacted by Congress. Cf. Garrett v. Moore-McCormack Co., supra; Warren v. United States, 340 U.S. 523, 526-528, 71 S.Ct. 432, 434-435, 95 L.Ed. 503; and see Mater v. Holley, 5 Cir., 200 F.2d 123. ^[5]

Third. Notwithstanding these conclusions, jurisdiction under § 1331 would, of course, not lie if it were beyond the constitutional power of Congress to vest jurisdiction over this action of a seaman against his employer, a matter falling admittedly within the 'admiralty or maritime jurisdiction,' in a federal court sitting at law. But it is too late to make such an argument. The jurisdictional treatment of the rights of seamen under the Jones Act, a cause of action bound up with the cause of action in question here, is preclusive on the issue. The Jones Act was held in Panama R. Co. v. Johnson, 264 U.S. 375, 44 S.Ct. 391, 68 L.Ed. 748, to be authorized by the legislative power residing in the Admiralty Clause of Article III. The right of action granted was, however, specifically stated by Congress to be exercisable 'at law, with the right of trial by jury' and in the Federal District Courts. This treatment was upheld, against constitutional challenge, by the Court, which held that jurisdiction properly lay, at the option of the plaintiff, either in admiralty or on the law side of the District Court. '(T)he constitutional provision interposes no obstacle to permitting rights founded on the maritime law or an admissible modification of it to be enforced as such through appropriate actions on the common-law side of the courts * * *.' Id., 264 U.S. at page 388, 44 S.Ct. at page 394. And the unchallenged maintenance of the very cause of action in question here at law in the District Courts under 28 U.S.C. § 1332, 28 U.S.C.A. § 1332, where diversity of citizenship is present, is further proof that no constitutional inhibition to the maintenance of such an action at law under § 1331 exists. Cf. The Belfast, 7 Wall. 624, 644, 19 L.Ed. 266.

But despite the constitutional power of Congress, jurisdiction under § 1331 may still be defeated if that power has not there been exercised; in other words, if that jurisdictional grant is to be read as containing an implied exception as to cases falling within the 'admiralty or maritime jurisdiction.' See Paduano v. Yamashita Kisen Kabushiki Kaisha, 2 Cir., 221 F.2d 615; Jenkins v. Roderick, D.C., 156 F.Supp. 299, 302. This I take to be the net effect of the Court's reasoning. The gist of the argument, as it has been developed in the Courts of Appeals, is that § 1331 was enacted 'to insure the availability of a forum designed to minimize the danger of hostility toward, and specially suited to the vindication of, federally created rights * * *.' Paduano v. Yamashita Kisen Kabushiki Kaisha, supra, 221 F.2d at page 618. Continuously since 1789 Congress has provided specially for admiralty courts in which rights under the federal maritime law could be asserted. The argument runs that it follows that claims under the maritime law were not intended to fall within the scope of § 1331. And here, the Court's conclusion rests primarily on an analysis of the terms and background of the 1875 Act which was the ancestor of § 1331, and on various inferences drawn from silence after that Act's passage.

The members of the First Congress, in agreement that national courts of admiralty were an imperative necessity of the times, 1 Annals of Cong. 797-798 (1789), gave to the District Courts in § 9 of the First Judiciary Act original jurisdiction over 'all civil causes of admiralty and maritime jurisdiction * * *.' 1 Stat. 76, 77. Under § 21 the Circuit Courts were given appellate jurisdiction 'in causes of admiralty and maritime jurisdiction * * *.' 1 Stat. 83. These phrases followed almost literally the wording of Art. III, § 2, of the Constitution, extending the federal judicial power 'to all Cases of admiralty and maritime Jurisdiction * * *.' Significantly, the First Judiciary Act granted to the District and Circuit Courts no general federal-question jurisdiction.

Section 9 of the First Judiciary Act, however, contained the clause '* * * saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it * * *.' The Saving Clause survives in 28 U.S.C. § 1333, 28 U.S.C.A. § 1333, phrased '* * * saving to suitors in all cases all other remedies to which they are otherwise entitled. * * *' This provision, plainly, was a recognition that there were, prior to 1789, maritime claims within the concurrent jurisdiction of courts of admiralty and law, 1 Benedict, American Admiralty (6th ed. 1940), § 20; Schoonmaker v. Gilmore, 102 U.S. 118, 119, 26 L.Ed. 95, and it was clearly the intention of Congress to perpetuate this duality of remedy. It is true that certain classes of cases, such as the traditional in rem, prize, and seizure cases, lay within the exclusive jurisdiction of the admiralty, 1 Benedict, American Admiralty, § 23; The Moses Taylor, 4 Wall. 411, 18 L.Ed. 397; The Hine v. Trevor, 4 Wall. 555, 18 L.Ed. 451; The Glide, 167 U.S. 606, 17 S.Ct. 930, 42 L.Ed. 296, but all other suits under the maritime law of an in personam nature might be brought as well in the state courts or, under the diversity jurisdiction, in the Federal Circuit Courts. § 11, 1 Stat. 78.

It is thus clear that any argument that § 1333 is an exclusive grant of jurisdiction would be false to the history of enactments allocating the judicial power of the United States. The fact that, in a diversity case under § 1332, the claimant is free to proceed on the law side of the federal court to enforce rights created by the federal maritime law, Seas Shipping Co. v. Sieracki, 328 U.S. 85, 88-89, 66 S.Ct. 872, 874-875, 90 L.Ed. 1099, clearly runs counter to any theory that the federal courts, because of § 9 of the Judiciary Act of 1789, can adjudicate maritime claims only while sitting in admiralty. There is no compelling reason why § 1333, which does not exclude maritime actions from being brought at law in a federal court under § 1332, should exclude them from being so brought under § 1331. ^[6] Indeed, I find it a gross anomaly to hold, as the Court holds today, that an action rooted in federal law can be brought on the law side of a federal court only if the diversity jurisdiction, usually a vehicle for the enforcement of state-created rights, can be invoked.

Plainly there is nothing in the language of § 1331 which would exclude jurisdiction of maritime claims of the nature asserted by petitioner. Rather, in more than a manner of speaking, the language of that section fits the cause of action in question here 'like a glove,' Jenkins v. Roderick, D.C., 156 F.Supp. 299, 301. But the Court reasons that the section must be read restrictively because the corresponding jurisdictional grant in the Constitution speaks of 'Cases, in Law and Equity, arising under this Constitution, the Laws of the United States * * *.' This specification of 'law and equity,' reflected in the 1875 ancestor ^[7] of present § 1331 as 'suits of a civil nature at common law or in equity * * * arising under the Constitution or laws * * *' is said to indicate that a suit arising under the substantive maritime law is not comprehended under the section. But the argument mistakes the nature of a Saving Clause action. An action brought under the Saving Clause is maintained 'at law' or 'in equity,' and the very action that Romero would assert here he would assert 'at law.' The mere fact that the substantive claim a court enforces in a particular Saving Clause action is rooted in the general maritime law does not transform the proceedings from a suit 'at law' to one 'in admiralty'; the state courts can hardly be said to sit 'in admiralty' when they try actions under the Saving Clause. Cf. The Hamilton, 207 U.S. 398, 404, 28 S.Ct. 133, 134, 52 L.Ed. 264. The Saving Clause itself, in its 1789 form, stated that what it was 'saving' was 'a common law remedy' to be available in maritime fact situations. It can readily be admitted that a suit 'in admiralty' is not the same thing as a suit 'at law.' But this is not to say that a suit involving a maritime cause of action cannot be the subject of a suit 'at law' in the federal courts. Obviously Saving Clause actions brought on the law side of the federal court, with diversity of citizenship present, are actions 'at law.' In fact, the grant of diversity jurisdiction in the 1875 Act was in the very same terms as the grant of the 'arising under' jurisdiction; the same introductory phrase, 'suits of a civil nature at common law or in equity,' governed both grants. It seems to me very odd to say that this phrase, introducing two grants of jurisdiction, had the effect of excluding maritime causes of action entirely from the one but not at all from the other.

The legislative history of § 1331 does not indicate any intent on the part of Congress to exclude claims asserted under federal maritime law from its ambit. The present section is but the latest recodification of the provisions of the Judiciary Act of 1875, 18 Stat. 470, alluded to above, which for the first time with any permanence vested in the federal courts an original general federal-question jurisdiction over any claim which 'arises under the Constitution, laws or treaties of the United States.' The congressional debates focused so largely on proposed changes in the diversity jurisdiction that no considered scrutiny was given to the provisions which have become § 1331. See 2 Cong.Rec. 4978-4988; Frankfurter and Landis, The Business of the Supreme Court (1927 ed.), 65-69. Nothing appears which would indicate a congressional intent to modify, by implication or otherwise, the sweep of the language of this Act, embodying as it does substantially the words of the constitutional grant. ^[8] And nothing appears which would indicate any intention that the Act's coverage be 'frozen' to exclude federal causes of action which were not fully developed in 1875.

The Court argues, however, that Congress, aware of Chief Justice Marshall's statement that Article III created the admiralty jurisdiction as 'distinct' from the 'arising under' jurisdiction, ^[9] American Ins. Co. v. Canter, supra, 1 Pet. at page 545, intended that the jurisdictional statutes be mutually exclusive. The manager of the 1875 legislation in the Senate declared of the bill generally that it conferred 'precisely the power which the Constitution confers nothing more, nothing less.' 2 Cong.Rec. 4987. It is difficult to infer that Congress meant to crystallize any particular interpretation of the Constitution in the statute. But even if it were proper, in the absence of concrete indication, speculatively to breathe into our construction of § 1331 views of the Constitution ^[10] which might have served as a silent premise of congressional action, I do not think that the Court here is called on to do so. Marshall's statement is not, when understood in its context, contrary to my position, and in fact its proper scope was recognized before 1875.

Before discussing the Canter case, I think it wise to restate the precise nature of the issue before the Court. This is so because I fear the Court, in an expansive reading of Canter not justified either by what was decided there or by what was said there considered in the light of what was decided, has blurred the issue for decision today. The issue before us is not whether all cases 'of admiralty and maritime jurisdiction' are per se encompassed in the statutory 'arising under' jurisdiction. A suit seeking the sort of remedy that the common law is not competent to give could not be fairly contended to lie under § 1331; it would clearly be the sort of suit in which the jurisdictional grant of § 1333 was intended to be exclusive. The issue before us concerns only actions maintainable in some forum 'at law' under the Saving Clause. And again, the issue is not even the narrower one whether Saving Clause actions are per se cognizable under § 1331. The tests of jurisdiction under § 1331 must still be met, and there is no contention that they are met merely by a showing that an action is one maintainable under the Saving Clause and involving the requisite jurisdictional amount. The plaintiff's right to recovery must still be one rooted in federal substantive law, and it has quite recently been made clear that there are Saving Clause actions that do not meet that test. Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 75 S.Ct. 368, 99 L.Ed. 337. The issue before us is only whether the fact that an action is a Saving Clause action excludes it from § 1331 where it would otherwise be maintainable thereunder.

At issue in American Ins. Co. v. Canter was the power of a territorial court to make a decree selling cargo to satisfy a maritime lien in rem existing in favor of its salvors. A state court, even under the Saving Clause, could not pass such a decree at all; it is the enforcement of the classic admiralty remedy, and a matter solely within the competence of the federal admiralty courts. The Hine v. Trevor, 4 Wall. 555, 18 L.Ed. 451. In the passage from Marshall's opinion relied upon, the Chief Justice was saying only that the Act of Congress which conferred on certain territorial courts jurisdiction in 'cases arising under the laws and constitution of the United States,' § 8, 3 Stat. 752, did not by that token alone grant them power to enforce a remedy peculiarly within the competence of admiralty courts. ^[11] In its broadest permissible interpretation, the dictum only means that the fact that the Constitution creates admiralty jurisdiction does not make all admiralty cases cases arising under the Constitution. ^[12] But Marshall's opinion does not say that an action seeking remedial relief of a sort which the common law is competent to give, and in which the plaintiff's right to recover is rooted in federal law, ceases to be a suit arising under the laws of the United States merely because it is of a maritime nature. ^[13] No one is contending here, of course, that § 1331 is a grant of power to enforce remedies peculiar to the admiralty; the contention is solely that that section, which empowers a federal court to administer common-law remedies in vindication of rights of plaintiffs which take their origin from federal law, is not subject to an exception for rights taking their origin in federal maritime law. Marshall's opinion simply is not addressed to this question or dispositive of it.

Much is made by the Court of Marshall's language that the categories of actions he mentions are 'distinct' and not 'identical.' Of course this is so, in a real sense and the only sense in which Marshall meant it. A matter affecting an ambassador or a counsel is not per se an action 'arising under,' just as it is not per se a maritime action. But could not a case involving a consul be also a case of admiralty jurisdiction, under certain fact situation? And could not a suit by or against a consul happen, perchance, to be also one 'arising under'? The fact that the jurisdictional categories are separate and distinct, as Marshall demonstrates, does not mean that a particular action could not come under the heading of more than one of them. Everyone recognizes that this is the case in a maritime matter in which the parties are of diverse citizenship. I see no reason why it should not be true here of Romero's general maritime law claims against his employer.

It appears also to be clear that even before 1875 Marshall's opinion was not thought of as creating a situation in which it was impossible to say that there were maritime cases that could be also attributed to other categories of federal jurisdiction. Long before Congress contemplated the jurisdictional grant of 1875, this Court in Taylor v. Carryl, 20 How. 583, 15 L.Ed. 1028, made it clear that there were fact situations which were of maritime cognizance, giving rise to rights for which the admiralty could supply a remedy, or for which alternatively proceedings at the course of common law lay. Maritime torts were specifically conceived of as within this category. The Court in that case followed the view of Mr. Justice Story expressed in his Commentaries on the Constitution, which were quoted with approval:

"Mr. Chancellor Kent and Mr. Rawle seem to think that the admiralty jurisdiction given by the Constitution is, in all cases, necessarily exclusive. But it is believed that this opinion is founded on mistake. It is exclusive in all matters of prize, for the reason that, at the common law, this jurisdiction is vested in the courts of admiralty, to the exclusion of the courts of common law. But in cases where the jurisdiction of common law and admiralty are concurrent, (as in cases of possessory suits, mariners' wages, and marine torts,) there is nothing in the Constitution necessarily leading to the conclusion that the jurisdiction was intended to be exclusive; and there is no better ground, upon general reasoning, to contend for it. The reasonable interpretation * * * would seem to be, that it conferred on the national judiciary the admiralty and maritime jurisdiction exactly according to the nature and extent and modifications in which it existed in the jurisprudence of the common law. When the jurisdiction was exclusive, it remained so; when it was concurrent, it remained so. Hence the States could have no right to create courts of admiralty as such, or to confer on their own courts the cognizance of such cases as were exclusively cognizable in admiralty courts. But the States might well retain and exercise the jurisdiction in cases of which the cognizance was previously concurrent in the courts of common law. This latter class of cases can be no more deemed cases of admiralty and maritime jurisdiction than cases of common-law jurisdiction.' (3 Story's Com., sec. 1666, note.)' 20 How. at page 598.

And it was understood before 1875 that this concurrent jurisdiction at law was not one merely existent in the state courts, but one available to suitors in the federal courts. See The Belfast, 7 Wall. 624, 644, 19 L.Ed. 266, infra, 79 S.Ct. at page 498.

Accordingly, I cannot see how it can be concluded that Congress in 1875 read Marshall's opinion as creating some sort of gulf that would make it impossible for any maritime case to be also one 'arising under the Constitution or laws of the United States.' ^[14]

Of course, one cannot rely, to prove the Court's thesis, on dicta in cases decided before 1875 to the effect that Saving Clause actions could be brought on the law side of a federal court only when there is diversity of citizenship, and the Court does not so rely. The Belfast, 7 Wall. 624, 643-644, 19 L.Ed. 266; Leon v. Galceran, 11 Wall. 185, 188, 20 L.Ed. 74; Steamboat Co. v. Chase, 16 Wall. 522, 533, 21 L.Ed. 369. The 1875 Act for the first time with any permanence granted general federal-question jurisdiction to the federal courts of first instance. It can hardly be denied that these statements were correct when made, but it is equally plain that they are no authority for limiting the law-side jurisdiction to diversity cases once the 1875 Act had been passed. Moreover, I cannot seriously attach any significance, as the Court does, to the repetition, obiter, of their formulation in a case decided shortly after the Act's passage, where the effect of the new statute was not at all presented or discussed. Norton v. Switzer, 93 U.S. 355, 356, 23 L.Ed. 903. In fact, the approach this Court followed in the interpretation of the Saving Clause during this period supports, rather than detracts from, my conclusion here. It was observed in 1869 that the remedies saved by the Saving Clause were saved 'to suitors, and not to the State courts, nor to the Circuit Courts ^[15] of the United States. * * * Congress intended by that provision to allow the party to seek redress in the admiralty if he saw fit to do so, but not to make it compulsory in any case where the common law is competent to give him a remedy. Properly construed, a party under that provision may proceed in rem in the admiralty, or he may bring a suit in personam in the same jurisdiction, or he may elect not to go into admiralty at all, and may resort to his common law remedy in the State courts or in the Circuit Court of the United States, if he can make proper parties to give that court jurisdiction of his case.' The Belfast, 7 Wall. 624, 644, 19 L.Ed. 266. It is clear from the Court's language that the common-law remedies saved to suitors could properly be enforced in any tribunal otherwise having jurisdiction; the remedies saved were saved generally to suitors without discrimination as to any tribunal.

Nor can I consider it sound to place the reliance the Court has placed on the fact that the arguments we are considering today were not raised until 1950. Till then no court ever considered the problem that we discuss here at great length. None of the assortment of commentators listed in the Court's Appendix ever discussed it. The Court's argument, in fact, claims to draw force from the fact that it was not discussed at all. From the fact that the issue was never explored or tried at all till 1950, when Judge Magruder in a dictum in Jansson v. Swedish American Line, ^[16] 1 Cir., 185 F.2d 212, 216-218, 30 A.L.R.2d 1385, took a point of view similar to the one expressed here, we are asked to infer that the argument for jurisdiction should not succeed when finally raised. I cannot accept this as a convincing argument in the construction of a broadly written statute which was intended, at least in some aspects, to be as broad and dynamic as the Constitution itself, and which has served as the basic jurisdiction entitlement for the vindication of the numerous and increasing types of federally created rights in the lower federal courts ever since its enactment. It is a modern development in legal science in this country's federal system that increasing concern is taken with the source of the substantive law administered by the courts. Southern Pacific Co. v. Jensen, supra, and notably Erie R. Co. v. Tompkins, supra, are indications of this trend. When lawyers and judges in our federal system came to concentrate more and more on the source of the substantive law administered in the courts, and when this Court's opinions made it increasingly clear that there were kinds of maritime actions where the underlying right to recover was rooted in federally created law, inadmissible of significant modification by the States, it was an inevitable consequence that the relation of § 1331 to maritime matters would come for the first time to be examined, as Judge Magruder examined it in the Jansson and Doucette cases. If one views the history of the common-law system of adjudication as the history of a process, one must conclude that the 'historical' material relied upon by the Court has nothing to do with this sort of history at all, except to illustrate its antithesis.

It is, finally, true that this Court has adhered to a policy of construing jurisdictional statutes narrowly. Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 703, 78 L.Ed. 1248; Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 675, 86 L.Ed. 951. In regard to the grant of federal-question jurisdiction to the District Courts, this Court has insisted that a claim created under federal law be a necessary part of the plaintiff's case, Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126, and that this claim be truly federal in nature, Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70. But the present problem is apart from this line of cases, for here it is clear that petitioner is presenting to a federal court a claim created by federal law, and the objection is that somehow Congress intended to exclude claims of this particular sort from the grant in § 1331. But the arguments presented for such a narrow construction appear to me too insubstantial to withstand the logic of petitioner's position. However, willing one might be to resolve doubtful language against jurisdiction, exceptions to statutory language cannot be manufactured in a manner unwarranted by the words themselves and derived from the pertinent history only by a process of futile speculation. I am compelled to the conclusion that it is the effect of the 1875 Act and its intent, judged by the lights by which the courts must discern legislative intent, that the federal courts possess original jurisdiction, at law, to determine claims arising under federal substantive maritime law, where the common law is competent to afford the remedy sought by the plaintiff.

Fourth. The Court envisions various unfortunate results, from a practical standpoint, that would ensue from a holding on the jurisdictional issue under § 1331 contrary to its own. I shall comment briefly on its arguments.

It is first argued that the recognition of jurisdiction under § 1331 would, combined with the removal provisions of § 1441(b) of the Judicial Code, operate to destroy the competence of the States in maritime matters altogether. A source cited by the Court itself ^[17] indicates that in the five-year period 1953 to 1957 inclusive only about 150 decisions in Saving Clause actions have been rendered in all of the state courts of the country. As I have developed, resolution of the jurisdictional issue contrary to the majority's view would not mean that all these cases would be assertable originally in the federal court or removable there, even present $10,000 in controversy. It is apparent then that the removability point addresses itself to a situation nearly de minimis. Saving Clause suitors seem long ago to have deserted the state courts. I therefore cannot share the concern that state judiciaries will be deprived of their historic active roles in the development of maritime law. Of the few actions that are left in the state courts, many may stay, for aught that can be predicted now. What sort of role do the state judiciaries now have in the development of the maritime law, with thirty-odd Saving Clause actions a year among them? Will the doctrine really put an end to this role, whatever it is? And it must be noted that such legislative competence as they possess remains to the States regardless of what may happen to the number of maritime cases in their courts; the view I have urged does not subtract one iota from the legislative competence of the States. And it is only because of an enlargement of removal that it affects their judicial competence; it does not take away their original jurisdiction at all, if suitors are content with it.

In further elaboration of the inroads on state competence which rejection of the Court's view is supposed to entail, it is stated that it is a destructive oversimplification to claim that all enforced rights pertaining to maritime matters are rooted in federal law. So it is; and no one is so claiming. The point is not that all Saving Clause actions meet the 'arising under' test of § 1331. ^[18] It is, however, perfectly evident from the past holdings of this Court that the seaman's action for unseaworthiness and maintenance and cure is rooted in federal law, and it is only this claim that need present the issue of the case as to § 1331. I agree perfectly with the Court's observation that in our federal system allocations of jurisdiction have been carefully wrought to correspond to the realities of power and interest and national policy. I think that § 1331 embodies this approach by vesting in the federal courts, in civil actions, jurisdiction, at the option of the suitors, over all suits seeking a legal or equitable remedy, arising under federal law and involving a specified amount, and that this is so whether they involve maritime matters or not. I cannot see how it fits with the 'realities of power and interest and national policy' to say that there is federal jurisdiction at common law over federally defined maritime causes of action only if there is diversity of citizenship among the parties involved in them.

The Court next argues that a holding to the contrary of its own will produce venue problems, and will in fact be unduly restrictive toward plaintiffs in their choice of forums. Where the District Courts have jurisdiction under § 1331 (even though diversity may also be present) § 1391(b) of the Judicial Code rather than § 1391(a) governs, and the suit must be brought in the defendants' residence district, and may not be brought in the plaintiffs' residence district, unless of course it also happens to be the defendants'. But one reading the discussion of the consequences this will have for plaintiffs is apt to forget (for the Court does not inform him) that defendants in maritime actions are most likely to be corporations (particularly in personal injury litigation, the sort of case we have at bar) and that § 1391(c) declares that the residence of a corporation for venue purposes is any district where it is incorporated or any district in which it is licensed to do, or actually doing business. With corporate venue so widely defined, it will be a rare plaintiff (and a rarer personal injury plaintiff, for seamen and longshoremen are apt to live near where their employers carry on business, or where the vessel owners their employers serve do business) who can take much advantage from the fact that he can sue in the district of his own residence in an action based solely on diversity and not otherwise. And of course, the existence of proper venue at his own residence does not mean the plaintiff can sue the defendants there; he must still serve them with process. Except that process can be run throughout the limits of the State, while venue speaks in terms of the district, this means that the broader diversity venue only is of assistance where there is a defendant who, while not 'doing business' in an area, is nonetheless amenable to process there. Of course there are some such, but I think by now the dimensions of this 'practical' reason for the Court's holding are patent.

The Court, though it rejects Romero's assertion of jurisdiction over his general maritime law claims against his employer under § 1331, proceeds to adjudicate them on the merits. It reaches them through a 'pendent' jurisdiction theory analogous to Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148. The Court's action appears unprecedented, as it appears to recognize. The prior applications of the doctrine recognized here have been limited to caes where claims arising under state law, over which there was no independent jurisdiction in the federal court, have been intertwined with federal claims. The theory has not been here applied to cases where there have been two types of claims, both admittedly within the District Court's jurisdiction, one of which was admittedly cognizable according to the forms of the common law and the other, except for the theory, not. Here a plaintiff comes into court desiring that his claims be adjudicated strictly according to the common law and disclaiming federal jurisdiction in admiralty. In short, he desires that a common-law jury pass upon his claims. If the federal courts do not have such jurisdiction over all his claims, there are state courts which do, and he may well prefer them in that event. The Court today tells him that though it is doubtful whether there is enough common-law jurisdiction in the federal courts to proceed to a plenary adjudication of his claim, there is enough certainly to award summary judgment against him on the merits. I must say I cannot understand a sort of jurisdiction that allows the federal courts to make a preliminary exploration of the merits of the case, and a binding adjudication upon them, but which may not allow them to go further.

Obviously what we have here, once the Court's view of § 1331 is accepted, and as claims are presented which can survive summary judgment, is not a problem in pendent jurisdiction but a glaring problem in judicial administration and in the separation of functions between judge and jury. Crew members' maritime tort suits almost invariably urge claims under the Jones Act and under the general maritime law for breach of the duty to maintain a seaworthy vessel. These claims are legally, and generally factually, completely bound up with each other. McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 78 S.Ct. 1201, 2 L.Ed.2d 1272; Baltimore S.S.C.o. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069. It would be productive of extraordinary problems if the two elements of the claim are presented to different triers of fact at the same time, as would be one consequence of holding that there was no jurisdiction at law of any sort over unseaworthiness claims where diversity of citizenship was absent. Cf. Jenkins v. Roderick, D.C., 156 F.Supp. 299, 304-306. Should an advisory jury (with the same membership, doubtless, as the 'mandatory' one hearing the Jones Act claim) hear the unseaworthiness claim? To what extent would its verdict bind the judge? If the judge passes on the issues himself, how to avoid overlapping damages, or contradictory findings? And what would be the effect of a finding of facts common to both claims made by the judge before the rendition of the jury's verdict, or vice versa? Would the doctrine of collateral estoppel apply? These problems arise in the wake of the Court's rejection of jurisdiction under § 1331 and its restricted holding on any other jurisdictional basis (apart from § 1333) of Romero's claims under the general maritime law against his employer. I cannot consider that the Court's solution of the controversy among the lower courts that has prevailed since the Jansson dictum has shed much light on them.

Since under my view there would be jurisdiction at law (the only jurisdiction Romero invoked) to consider all his claims, I arrive at the merits of his claims against his employer, Compania Trasatlantica. As to them, I concur in the result set forth in Part II of the Court's opinion. I also agree with the Court's disposition of the claims against the other respondents, as set forth in Part III of its opinion.

THE CHIEF JUSTICE joins in this opinion, and Mr. Justice BLACK and Mr. Justice DOUGLAS join in it except to the extent indicated in their dissents.

Notes

1. The grant of diversity of citizenship jurisdiction contained in 28 U.S.C. § 1332, 28 U.S.C.A. § 1332 contains no language which would include a suit by one alien against another, even where there might also be citizen defendants. For the constitutionality of a broader statute, at lease under Art. III, § 2, cl. 1, subclause 8, see Hodgson v. Bowerbank, 5 Cranch 303, 3 L.Ed. 108.
2. At the time of the commencement of petitioner's suit, § 1331 read:
3. It is true that to a certain extent state law may be consulted in this area, at least where it does not work 'material prejudice to the characteristic features of the general maritime law' or interfere with 'the proper harmony and uniformity of that law * * *.' Southern Pacific Co. v. Jensen, supra, 244 U.S. at page 216, 37 S.Ct. at page 529. For example, recovery has made use of state wrongful death acts, The Hamilton, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264; Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210; Levinson v. Deupree, 345 U.S. 648, 73 S.Ct. 914, 97 L.Ed. 1319, and of state survival statutes, Just v. Chambers, 312 U.S. 383, 668, 61 S.Ct. 687, 85 L.Ed. 903.
4. There is not presented here the problem of interpreting, in its periphery where state and federal elements are blended, the scope of the arising-under provisions of § 1331. See Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577; Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70; Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194.
5. Since § 1331 is derived from § 1 of the Judiciary Act of 1875, 18 Stat. 470, and since the language of the jurisdictional grant in that Act is taken from Art. III, § 2, it is worthy of note that the earlier draft forms of Article III had provided that the judicial power should extend to 'cases arising under laws passed by the legislature of the United States.' See Madison's Diary, for July 26, August 6, and August 27, 1787 (II Elliot's Debates (2d ed. 1941) 368, 376, 380); Warren, The Making of the Constitution (1937 ed.), 538-539; United States v. Flores, 289 U.S. 137, 148, 53 S.Ct. 580, 582, 77 L.Ed. 1086.
6. It is argued that the policy of § 1331 'to insure the availability of a forum designed to minimize . . . hostility . . . to the vindication of federally created rights,' has no application here because of the availability of a federal forum under § 1333. Substantially the same argument could be made in a diversity case under § 1332 since it would be assumed that the admiralty would be impartial in treatment of out-of-state parties. Cf. Paduano v. Yamashita Kisen Kabushiki Kaisha, supra, 221 F.2d at page 618.
7. § 1, Act of March 3, 1875, c. 137, 18 Stat. 470. This was the first permanent statute vesting original 'arising under' jurisdiction in the federal courts. Section 11 of the Act of February 13, 1801, c. 4, 2 Stat. 92, extended such jurisdiction, but it was shortly repealed by § 1 of the Act of March 8, 1802, c. 8, 2 Stat. 132.
8. I might say that I do not think impressive the Court's argument that because the members of the Senate Judiciary Committee and other Congressmen in 1875 were men of large legal attainments and learning they could not have intended a result contrary to the Court's when they participated in the enactment of the Judiciary Act. The Court states that public ministers, and consuls; to all cases have made such a 'revolutionary' change in the maritime jurisdiction as a holding these as three distinct classes of supposed to be. But cf. Frankfurter and Landis, op. cit., supra, at 65: 'This development in the Federal Judiciary ('arising-under' jurisdiction), which in retrospect seems revolutionary, received hardly a contemporary comment.' At any rate, the Court's argument, to me, combines an unwarranted historical 'cult of the personality' with an attribution of one's own views to prior generations. What is not involved here is some sort of conspiratorially silent change in federal jurisdiction, but the question whether a tacit exception should be engrafted on a thoroughgoing and explicit new jurisdictional grant; whether we should 'read out' of the statute 'what as a matter of ordinary English speech is in.' United States v. Hood, 343 U.S. 148, 151, 72 S.Ct. 568, 570, 96 L.Ed. 846.
9. Marshall's statement in full is as follows:
10. I advert to these constitutional views only for such light as they may shed on Congress' probable intent at the time the Act of 1875 was under consideration. Marshall's statement may be thought to have been made in constitutional terms. As I have developed above, there can be no constitutional argument against the power of Congress to allocate this type of action, at least concurrently, to the law side of a federal court.
11. The power to enforce the remedy was in fact found in another section of the territorial organic act, § 7, 3 Stat. 752, under which jurisdiction could be vested in the court in question, rather than in the territorial Superior Court, to which § 8 related. Cf. note 14, infra.
12. This seems to be the import of the first sentence from the Marshall dictum quoted in note 9, supra. And see note 13, infra.
13. The opinion of Justice Johnson in the Canter case, rendering the judgment in the Circuit Court which Marshall's opinion affirmed on appeal, makes this very distinction. Johnson rejected the idea that the constitutional grant of admiralty jurisdiction made all admiralty cases cases arising under the Constitution. He did not believe that the cause of action for salvage arose under the Constitution or the laws of the United States. Yet he recognized, and enumerated, cases of a maritime nature where the substantive rights were rooted in federal law, and to which the grant of 'arising under' jurisdiction would extend. American Ins. Co. v. Canter, 1 Fed.Cas. page 662, No. 302a. Johnson sat in the Supreme Court on the appeal, and did not express any indication that Marshall's opinion was contrary to what he had said at circuit. In fact, Marshall's language that 'jurisdiction over the case does not constitute the case itself,' note 9, supra, appears to recognize Johnson's distinction; the constitutional grant of admiralty jurisdiction does not mean that all admiralty cases are 'arising under' cases; the substantive law governing the case is determinative. Cf. People of Puerto Rico v. Russell & Co., 288 U.S. 476, 483, 53 S.Ct. 447, 449, 77 L.Ed. 903.
14. Only four years after the passage of the 1875 Act, the Court rejected Marshall's dictum in the very narrow application that it had at the time it was originally delivered. In The City of Panama, 101 U.S. 453, 25 L.Ed. 1061, the Court again was considering the power of a territorial court to enforce remedies peculiarly within the competence of a court of admiralty. A counterpart to the section on which Marshall finally predicated the jurisdiction in Canter was not presented by the case, and the Court based jurisdiction on a section of the territorial organic act similar to the one Marshall had rejected, i.e., on § 9, 10 Stat. 175, 176, which extended jurisdiction in certain 'cases arising under the constitution and laws of the United States.' In holding that this 'arising under' language granted admiralty jurisdiction, the Court referred to Canter: 'Select passages of the opinion in that case, when detached from the context, may appear to support the theory of the respondents, but the actual decision of the court is explicitly and undeniably the other way.' 101 U.S. at page 458.
15. The original repositories of the diversity jurisdiction, § 11, Act of September 24, 1789, c. 20, 1 Stat. 78.
16. Judge Magruder thoroughly developed his views in Doucette v. Vincent, 1 Cir., 194 F.2d 834.
17. The Seventh 5-Year Index-Digest of American Maritime Cases, 1953-1957 (1957), xliii-xlviii. This source reports all state court decisions, including those not published otherwise.
18. The Court later, however, recognizes that no one is arguing that all Saving Clause actions per se are encompassed by § 1331. But the argument then progresses that it will be unfortunate if the courts are forced to determine in limine whether various Saving Clause actions do or do not 'arise under' for § 1331 purposes. Is it really an obstacle to the efficient administration of justice if a trial court, at the first stage of litigation, is called upon precisely to determine what is the legal system that has created the cause of action on which the plaintiff is suing?