Felix Frankfurter

“ But seamen's rights are not longshoremen's rights and the events combining to present the question concerning seamen's rights in the Hust case were not conclusive upon longshoremen's rights. This is true although in some instances longshoremen, through legislation or by virtue of their succession to seamen occasioned by the industry's evolution in some phases of ship and shore duty, have been held entitled to similar protections. ”

“ For in either event, it says, ' (New York's) determination is decisive that there is no remedy in its courts for such a business invitee against one who has no control and possession of (the) premises.' From this conclusion I disagree. For, if the liability here is founded in federal law, as creating the maritime tort, then New York law has nothing to do with creating or nullifying the substantive right. Its sole function is to supply the remedy commanded by § 9 of the Judiciary Act. ”

“ Swan, J., speaking for the court, said in reference to the Hust case, 156 F.2d at page 602, 'If the agent remains the employer sufficiently to be liable to members of the crew under the Jones Act, we think it cannot escape the duties of an owner pro hac vice in other respects. Thus it has the duty to furnish stevedores with a safe place to work, a duty which is analogous to that owed by a landowner to a business visitor.' The Court does not essay to answer that argument ”

“ While the liability here is not legislative in origin, nevertheless as in the Hust case, application of the common-law 'control' test to defeat the longshoreman's remedy under the state procedure, as provided by § 9 of the Judiciary Act of 1789, cannot 'be justified in this temporary situation unless by inversion of that wisdom which teaches that 'the letter killeth, but the spirit giveth life. ”