delivered the opinion of the Court.
Santiago, a seaman, shipped on the respondent’s vessel for a voyage from the harbor of New York to Boca Grande, Florida, and return. On the home voyage, he fell ill of pneumonia, and died in a hospital after reaching the home port. His administrator, the petitioner, sued to recover damages for his death, which was charged to have been caused by the failure of the master of the ship to give him proper care. In the District Court there was a judgment for the petitioner, which was reversed upon appeal. The reversal was on the ground that the seaman’s right of action for negligent care or cure was ended by his death, and did not accrue to the administra-' tor for the use of next of kin. 52 F. (2d) 22. The case is here on certiorari.
By the general maritime law a seaman is without a remedy against the ship or her owners for injuries to his person, suffered in the line of service, with two exceptions
*371
only. A remedy is his if the injury has been suffered as a consequence of the unseaworthiness of the ship or a defect in her equipment.
The Osceola,
The question then is to what extent the ancient rule has been changed by modern statute. Section 33 of the Merchant Marine Act of 1920, commonly known as the Jones Act 1 (41 Stat. 1007, § 33; 46 U. S. Code, § 688), *372 gives a cause.of action to the seaman who has suffered personal injury through the negligence of his employer. For death resulting from such injury it gives a cause of action to his personal representative. We are to determine whether death resulting -from the negligent omission to furnish care or cure is death from personal injury within the meaning of the statute.
The argument is pressed upon us that the care owing to a seaman disabled while in service is an implied term of his contract, and that the statute cannot have had in view the breach of a duty contractual in origin for which he had already a sufficient remedy under existing rules of law.
We think the origin of the duty is consistent with a remedy in tort, since the wrong, if a violation of a contract, is also something more. The duty, as already pointed out, is one annexed by law to a relation, and annexed as an inseparable incident without heed to any expression of the will of the contracting parties. For breach of a duty thus imposed, the remedy upon the contract does not exclude an alternative remedy built upon the tort. The passenger in a public conveyance who has been injured by the negligence of the carrier, may sue for breach of contract if he will, but also at his election in trespass on the case.
Jackson
v.
Old Colony Street Ry.,
We are thus brought to the inquiry whether
“
negligence ” and
“
personal injury ” are terms fittingly applied to the acts charged to the respondent. The case is helped by illustrations. Let us suppose the case of a seaman who is starved during the voyage in disregard of the duty of maintenance‘with the result that his health is permanently impaired. There is little doubt that in the common speech of men he would be said to have suffered a personal injury, just as much as a child in an orphan’s home who had been wronged in the same way. Cf.
Queen
v.
Instan,
[1893] 1 Q. B. 450. Let us suppose the case of a seaman slightly wounded through his own fault, but suffering grievous hurt thereafter as a consequence of septic poisoning brought about by lack of treatment. The common speech of men would give a like description to the wrong that he had suffered. The failure to provide maintenance or cure may be a personal injury or something else according to the consequences. If the seaman has been able to procure his maintenance and cure out of his own or his friends’ money, his remedy
*374
is for the outlay, but personal injury there is none. If the default of the vessel and its officers has impaired his bodily or mental health, the damage to mind or body is none the less a personal injury because he may be free at his election to plead it in a different count. Cf.
Pacific Co.
v.
Peterson, supra,
pp. 137, 138. Nor is liability escaped by appeal to the distinction between acts of omission on the one hand and those of commission on the other.
Moch Co.
v.
Rensselaer Water Co.,
We are told, however, that the personal injury from negligence covered by the statute must be given a narrow content, excluding starvation and malpractice, because for starvation and malpractice the seaman without an.' enabling act had a sufficient remedy before. The seaman may indeed have had such a remedy, but his personal representative had none if the wrong resulted in his death. While the seaman was still alive, his cause of action for personal injury created by the statute may have
*375
overlapped his cause of action for breach of the maritime duty of maintenance and cure, just as it may have overlapped his cause of action for injury caused through an unseaworthy ship.
Pacific Co.
v.
Peterson, supra,
p. 138;
Baltimore S. S. Co.
v.
Phillips,
We are warned, however, that in giving this content to the statute we are omitting to give heed to its reference to the act regulating the remedies of railroad employees, and are ignoring the standards of duty thus carried over and adopted. The Employers’ Liability Act for the protection of the employees of common carriers by railroad gives a remedy to such employees “ for injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier,” or by reason of any negligent defect in its roadbed or equipment. 35 Stat. 65, § 1; 45 U. S. Code, § 51. True indeed it is that a common carrier by land is not subject to a duty, except in special circumstances, to give maintenance or cure to sick or disabled employees. We say except in special circumstances, for it would be hazardous to assert that such a duty may not rest upon the representative of a railroad as well as upon the master of a ship when the servant, exposed by the conditions of the work to extraordinary risks, is helpless altogether unless relief is given on the spot.
Ohio & Mississippi Ry. Co.
v.
Early,
The act for the protection of railroad employees does not define negligence. It leaves that definition to be filled in by the general rules of law applicable to the conditions in which a casualty occurs. Cf.
Murray
v.
Chicago & N. W. Ry. Co.
The Court of Appeals in its reversal of the District Court assumed without deciding that the care of the seaman had been negligent and that there was a causal relation between the negligence and the death. The correctness of that assumption is challenged by counsel for the shipowner. These issues of fact being still open and undecided should be disposed of by the court below.
The judgment is reversed and the cause remanded to the Court of Appeals for further proceedings in conformity with this opinion.
Reversed.
Notes
“ That any seaman who shall suffer personal injury in the course of Ms employment may, at Ms election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by *372 jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable.”
Compare the act of March 30, 1920, c. Ill, § 1, 41 Stat. 537, 46 U. S. Code, § 761, “Death on the High Seas by Wrongful Act,” which extends to persons other than seamen, but is limited to suits in admiralty.
The authorities are brought together and carefully discriminated by Prof. Francis H. Bohlen, in an article “ Moral Duty to Aid Others as Basis of Tort Liability,” in 56 University of Penn. L. Rev. 217, 316, reprinted in his “ Studies in the Law of Torts,” pp. 290, 315.
Compare again the authorities collected by Bohlen in his “ Studies in the Law of Torts,” p. 312.