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April 11, 1972


Edward R. Becker, District Judge.

The opinion of the court was delivered by: BECKER

EDWARD R. BECKER, District Judge.

 The plaintiff, a merchant seaman, has brought a claim for personal injuries under the Jones Act claiming negligence of the shipowner and unseaworthiness of the vessel. He has demanded a jury trial. Plaintiff has already received the sum of $3,618.66 in maintenance and cure and unearned wages due to the disability which forms the basis for the Jones Act claim. The shipowner contends that the disability in question stems not from anything which occurred on the voyage, but from a preexisting condition which the plaintiff deliberately concealed from it and from the physician examining him to determine his fitness for sea duty by misrepresenting to the doctor and falsifying information on the statement accompanying the application for employment on the subject voyage. *fn1" There are two interesting questions before us: (1) whether admiralty jurisdiction permits us to entertain a counterclaim which the shipowner seeks to interpose in this action looking towards the recovery of the maintenance and cure which it claims was procured by fraud; and (2) whether, if the counterclaim is cognizable, it may be submitted to the jury. *fn2" While we have found cases from which to draw instruction, we can find no reported case governing the precise issues involved.


 The first question is whether the counterclaim may be interposed. Plaintiff asserts that such counterclaim does not fall within the jurisdiction of this Court because it sounds in tort (i.e., misrepresentation) occurring before plaintiff joined the vessel. If plaintiff is correct, the matter is not within the maritime jurisdiction. However, we view the subject matter of the counterclaim as arising from a maritime contract (the contract of employment between the shipowner and the seaman), see Sheppard v. Taylor, 30 U.S. (5 Peters) 675, 8 L. Ed. 269 (1831), or at least from the status which is created by that contract pursuant to which the maritime law has historically recognized the right of the seaman to maintenance and cure and unearned wages. See, Gilmore and Black, Law of Admiralty § 6.7, p. 256 (1957). *fn3" Therefore, whether we view the counterclaim as one for breach of contract, or as a suit to recover because of unjust enrichment arising from a maritime contract, see Archawski v. Hanioti, 350 U.S. 532, 535, 76 S. Ct. 617, 100 L. Ed. 676 (1956), *fn4" and cf. McCorpen v. Central Gulf Steamship Corp., supra at fn. 3, we find it to be within the jurisdiction of this Court.

 The case with the most analogous facts is Fraser v. Astra Steamship Corp., 18 F.R.D. 240 (S.D.N.Y. 1955). Fraser involved an attempt by the shipowner to interpose in a Jones Act case a counterclaim for liquidated damages against the plaintiff seaman based on the damages incurred by the shipowner as a result of plaintiff's attack on his crewmate. The court held that a claim of a shipowner against a seaman for this type of conduct was within the general maritime jurisdiction of the court, *fn5" and that the counterclaim was cognizable on that basis. It also held that the counterclaim was properly before the court as a permissive counterclaim on the ground that it constituted a set-off, stating:

"[Set] off, recognized as a permissive counterclaim, is an exception to the general rule that there must be an independent jurisdictional basis to support a permissive counterclaim. In Marks v. Spitz [ D.C., 4 F.R.D. 348], the Court explained that exception in the following words:
'Where the counterclaim is in the nature of set-off, and is used defensively rather than affirmatively, no separate federal jurisdictional basis for the set-off need be established. 1 Moore, Federal Practice (1938), § 13.03, p. 696. * * * It is a counter-demand which a defendant has against the plaintiff arising out of a transaction extrinsic to that out of which the primary claim arose. * * * The claim must be liquidated or capable of liquidation and grow out of a contract or judgment.'

 The principles of Fraser are applicable here. In addition to our finding that the counterclaim is cognizable within the maritime jurisdiction, it must also be allowed as a contractual set-off.

 The parties have argued the question of whether the counterclaim, if without our jurisdiction, is a compulsory or permissive one under Rule 13. Lengthy discussion of this point is unnecessary, because, even if it is not a compulsory counterclaim, we would exercise our discretion and permit it as a permissive one. Not only is no confusion caused by its interposition, but (see discussion infra) its presence in the case is an aid to judicial efficiency and consistency. Accordingly, we will grant defendant leave to file a supplemental answer and counterclaim. *fn7"


 We also hold that the counterclaim is triable by the jury. In making this determination, we are not unmindful of the general principle that admiralty claims are not triable by a jury. *fn8" However, we believe that the trial of the counterclaim falls within the principles enumerated in Fitzgerald v. United States Lines Co., 374 U.S. 16, 83 S. Ct. 1646, 10 L. Ed. 2d 720 (1963). In Fitzgerald, the court sanctioned a consolidated jury trial for an admiralty claim for maintenance and cure and a Jones Act claim for damages, both arising from the same injury and asserted by the same plaintiff against the same defendant. Inter alia, the court said:

"Requiring a seaman to split up his lawsuit, submitting part of it to a jury and part to a judge, unduly complicates and confuses a trial, creates difficulties in applying doctrines of res judicata and collateral estoppel, and can easily result in too much or too little recovery. . . . It is extremely difficult for a judge in trying a maintenance and cure claim to ascertain, even with the use of special interrogatories, exactly what went into the damages awarded by a jury -- how loss of earning power was calculated, how much was allowed for medical expenses and pain and suffering, how much was allowed for actual lost wages, and how much, if any, each of the recoveries was reduced by contributory negligence. This raises needless problems of who has the burden of proving exactly what the jury did. And even if the judge can find out what elements of damage the jury's verdict actually represented, he must still try to solve the puzzling problem of the bearing the jury's verdict should have on ...

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