Federal Jurisdiction-Federal Civil Procedure-Right to Jury Trial of Seaman’s Claim for Maintenance and Cure Where Joined with Claim Under Jones Act

Plaintiff seaman, having been injured while in the employ of defendant shipowner, filed an action in federal district court. Plaintiff invoked the court’s federal-question jurisdiction alone, under section 1331 of the federal Judicial Code. He alleged claims for negligence under the Jones Act, for unseaworthiness, and for maintenance and cure, and demanded jury trial of all three counts. The trial court sustained the demand as to the first two counts, but ordered that the claim for maintenance and cure be tried to the judge alone, sitting as a court of admiralty. On appeal from the order denying jury trial of plaintiff’s claim for maintenance and cure, held, affirmed. Sitting en bane, the nine judges of the Second Circuit handed down three separate opinions. Judge Friendly, with three colleagues, held that an award of jury trial of a maintenance and cure count would constitute reversible error, on the grounds that Federal Rule 38(a)’s grants of jury trial are exclusive and that the trial court did not have pendent jurisdiction on the law side of the maintenance and cure claim. Judge Smith, with Judge Waterman, concurring, held that, so long as plaintiff presented a Jones Act claim, neither an award nor a denial of jury trial of a joined count for maintenance and cure would be reversible error. Judge Clark, dissenting with the remaining two judges, argued that plaintiff should be entitled to jury trial of all claims arising from any single factual situation. Fitzgerald v. United States Lines Co., 306 F.2d 461 (2d Cir. 1962), reversed, 83 Sup. Ct. 1646 (1963).