Albert Reardon v. California Tanker Company

Stаndard, Weisberg, During Har Harolds, and trial, pres- but not City, Malament, York ence olds & New defendant’s counsel appellee. offered to that defendant had plaintiff for maintenance and cure SWAN, and Before MEDINA day period per the rate of $8 at Judges. WATERMAN, Circuit day pursuant to its collective union, with the a total of $576. Judge. SWAN, The court Circuit ruled inad- the evidence to be missible and to directed defense counsel appeal by a This an from is defendant quеstions ask no subject. on the judgment plaintiff a for after trial to brought charge an judge action instruct Act, ed that, Jones damages to recover plain U.S.C.A. § if found the personal injuries tiff for entitled recovery, only sustained to a items two by plaintiff employed of while as seaman namely, a considered, were to be question pre- on loss vessel. The of defendant’s which could exceed not $831, appeal sented court is whether the and pain and for suffering excluding resulting erred in evidence that defend- injury. He plaintiff, charged a ant had to further may that “no element other bargaining agreement damages collective be used computing union, you and may seamen’s for which plaintiff. For award example, you may cure. not take into consider ation the cost of his room and dur board damages Plaintiff’s suit claimed of ing period These convalescence. $10,000 alleged for an to items havе disposed adjusted of and negligence. been caused defendant’s parties and are not the case complaint made demand for main- no your consideration.” The returned cure, tenance and answer and defendant’s a $1,600, judgment verdict of and subject.1 made no reference to that was entered thereon.2 simple facts established at trial are undisputed. and jury, plaintiff in- As a of his result A who or is falls sick incapacitated was for work injured ship in the service of the while August 30, signed off he when ship, is or its entitled to receive from the voyage, at wages vessel the end of the cure, owner, maintenance and and 10, 1955, pro- November when voyage.3 to the end of Maintenance duty. no lodging. ‍‌‌​‌​‌‌‌‌‌‌​​‌​​‌‌‌​‌​​‌​​‌‌‌‌​‌​​‌​​‌‌‌​‌‌​​​‌​‍nounced fit He incurred keep, food means and expenses treatment, medical and comparable “The maintenance exacted earnings during day period loss of to that to which the seаman is entitled of his convalescence could exceed and while at sea [citations omitted] $831, wages computed on the of his including nursing basis care, med ‘cure’ is the time of the accident. during period ical such attention as negligence denying Judge The answer denied al- Herlands motion leged assumption unreported defenses affirmative delivered gives which contributory negligence. only risk and denying his reasons the motion but also his reasons for еx- cluding Thereafter defendant moved under Rule the evidence. F.R.C.P., 15(b) 28 U.S.C.A. to amend allege its answer as an going ships, affirmative de- ocean 3. “For the rule is said fense diminution are recoverable for the * * voyage facts which it offered to as to balance *. In coast- payment shipping cure. customary This sign wise it is on chiefly ground motion denied on voyage members crew not for but for unnecessary, period time, it was since the record adequatеly protected regularly as made defendant’s grant end until of term is appeal ruling raise on the court’s Black, ed.” See Gilmore and The Law agree Admiralty as to the excluded evidence. We and cases there cited. it does. rights overlap, duty main each action to some extent continues.” The only admiralty prevails the rule tenance and cure exist voyage elsewhere voyage in the law re- that no one after the but continuе compensatory cover has been more than the disabled seaman ends until During once.” such In Robinson possible.5 v. Isbrandtsen far cured so 2 judgment vacated we reimbursement he is entitled to expenses the third incurred for count, cure; for maintenance if he incurs lodging judgment recover because the first on the he can for food and count, “presum- nothing Act, he has if for “maintenance” ably wages, for covered lost was has no since there no mеdical he testimony together jury subject on rights, which the “cure.”6 These during right the told to consider.” the receive employed, period arise he for which was problem present- the case bar at contract, are employment from the separate ed is proffered whether exclusion of the of, from, independent may permitted plaintiff evidence have may have the seaman damages to recover in excess those negli frоm his resulted fact that gence chargeable actually so, sustained. If employer, or his was relevant and should been ad- By the vessel. unseaworthiness mitted. negli by injured the Jones Act a seaman Cir., Co., 2 S.S. In Perez v. Suwanee chargeable employer gence 180, be error held to 239 F.2d it was right against given independent for the award to refuse to deduct employer.7 by the sea- earned period man as a dishwasher Although seaman opinion alleged incapacity. The of his claims, one based have cumulative states, page 181: conduct, contract, on tortious the other remedy maintenance is “The be com should it is obvious that he good position put he pensated for loss once would as he as to principle has board has sustained. This in, if had become have been he usually main for in suits been discussed added to he earned is brought ill. If what the sea tenance after get allowance, will some- the full thing already in a had suit man brought main- addition more Muise Jones Act.8 under the 590, Abbott, Cir., tenance.” where 1 160 F.2d v. judgment appealed allow seaman ing from a jury’s present verdict In the case the only partial for him a libel relief in plaintiff Under $1600.9 awarded at said the court might maintenance and that the court’s instructions page recoverable 592 that “the lost earn- for allow more than $831 Ripley Lykes Brothers S.S. See v. 8. Smith 4. Quotation Cir., 604, de Corp. F.2d certiorari 105 5 Mr. Stоne Calmar S.S. Justice 604, 141, page 528, 84 L. Taylor, 525, S.Ct. nied 308 U.S. 60 58 303 at v. U.S. Cir., 505; Abbott, 653, 1 160 651, Ed. Muise v. L.Ed. 993. S.Ct. 590; McCarthy American East v. F.2d States, 511, v. United 336 U.S. Farrell 5. Cir., 727; Corp., 3 175 F.2d Robin ern 517-519, 707, pages 69 S.Ct. 93 L.Ed. Cir., Co., 2 son Isbrandtsen F. v. 850. 514; Associates, v. Eastern Gas Gomes D.C.Mass., F.Supp. 29, 30, 31. States, 46, v. United 333 U.S. 6. Johnson 391, 92 L.Ed. Stankie 68 S.Ct. returned 9. Since ver- Corp., Cir., Fruit v. United S.S. wicz dict, may well it be doubted whether Field Waterman judgment reversed, could be if the trial Corp., 5 S.S. However, were conducted without error. Peterson, question Pacific Co. v. S.S. before us is whether the evi- rightly 49 S.Ct. 73 L.Ed. 220. dence was excluded. ings, may “presumed” Accordingly judgment that some- it is reversed thing of dam- for this item was allowed the cause remanded for a new trial ages.10 the converse to be conformity Hence this is conducted in with this shipowner opinion. There Perez situation. allowance reduce the was held entitled to the excess MEDINA, Judge (dissenting). Circuit maintenance over amount because, my opinion, any dissent item actually expended for this amount evidence of the maintenance and cure damages. shipowner claims Here the appellant pursu- made jury’s award to be entitled reduce bargain- ant to the terms of the collective earnings. proof There lost ing agreement totally immaterial to any expense plaintiff incurred whether question lodging during food appellee recoverable in the case voyage ended. of convalescence after at bar. plaintiff If the awarded brоught suit, In this under the Jones actually paid Act, 46 U.S.C.A. § lodg- food and than for his out less ing, $576 injured claimed that he was while a sea- plaintiff been awarded has employ man appellant, in the of the compensation” extent to the “double injury solely that such resulted jury less If the awarded the excess. appellant’s negligence or the unseaworth- wages, award but their than lost $831 Appellee sought iness of the vessel. to $576, item, plus exceeded for plaintiff’s August recоver for loss of expenses for mainte- actual signing the date of his off the wages, of his lost nance and the amount appellant’s through ship, 10, November directing By overpaid. he has still been 1955, duty, when he was certified fit for questions defendant’s counsel to ask no pain suffering and for due to subject on of maintenance the court injury. ap- course the trial the any precluded proving defendant from sought pellant evidence, to introduce in overрayment. order ap- reduce strange precise point possible pellee’s recovery, It seems that to show that litigated only apparently company paid once. appellee has mainte- precisely point in found no case day, We nance cure rate a$8 ap $576, pursuant counsel for other than cited that a total to a collective namely, Guay bargaining pellant, Presi American appellee’s v. with the Lines, Ltd., 495, Cal.App.2d 184 dent 81 union which established that rate. The 539, reported in 1949 P.2d also trial court ruled that the evidence was in- here, There, ac likely in an A.M.C. 1890.11 prej- admissible to confuse and Act, of Jones tion evidence udice the but instructed the prove payment considering of maintenance fered to that appellee’s the amount of the damages they de was excluded. The held: (to) court “The were “not permitted to fendant should havе been take into consideration the his cost of ‘earned’ show that through in fact room and board of con- paid him the ‘maintenance’ ap- valescence.” On the basis ‍‌‌​‌​‌‌‌‌‌‌​​‌​​‌‌‌​‌​​‌​​‌‌‌‌​‌​​‌​​‌‌‌​‌‌​​​‌​‍of the ** agree earnings prior pellee’s sum of We $539. to the date of his decision, injury, charged that error was that and think court also excluding committed the case at bar could award the directing proffered as, than, evidence much hut no more questions wages. counsel ask no the sub The lost returned a awarding ject. appellee $1,600. verdict analogous, 10. Robinson v. Isbrandtsen 11. Somewhat involv maintenance, ing United is States v. upon Brooks, Cir., which appellant also relies. injured Act appealing the Under the Jones an seaman appellant, in The against may shipowner a claim assert to admit refusal court’s trial regarding ground neg- pay on latter was cure ligent join therewith a contentions. claim ments, claim on two its bases injured that, argues the unseaworthiness vessel. First, since it to, compensatory suing This addition and in- tort is in tort dependent of, the seaman’s a double secure cannot cure. Pacific S. S. Co. mitiga Peterson, 278 U.S. S.Ct. payments admissible are damages. L.Ed. 220. appellant’s second tion Fed of the Section contention application It is in of these Act, Liability 45 U.S. Employer’s eral principles to case at bar that dis any “(t)hat provides 55, which §C.A. agree my with thе views of brothers. *** any against brought action majority opinion apparently com virtue under or carrier common disregards pletely that the main fact chapter, provisions any of this of the and cure tenance appellee made to the may off therein set carrier common such any pro were made to the paid or contributed has sum it agree visions of collective indemnity benefit, insurance, or relief appellee’s Thus, ment with the union. have been undoubtedly that, while it sound law person thereto employee entitled or the agreement, such an absent seaman who death or on account money spends no for his brought” and action said injury medical cafe the as of an result bar applicable to the case at is which ship recover sum cannot 688, permits that § of 46 U.S.C.A. virtue owner for maintenance and John and paid for maintenance amount the States, v. United son against the tort claim off be cure set 68 S.Ct. L.Ed. Stankie Although latter injured this seaman. the Cir., Corp., wicz v. United Fruit S. S. majority the point mentioned in is not 229 F.2d Field v. Waterman reversing the the decision opinion in Cir., Corp., S.S. necessary below, consider it is court' provision in unless the the collective appellant’s contentions of the both bargaining agreement which fixed a trial the result the to affirm order pay rate for and maintenance cure is, arguments of thesе Each court. void, ments is this rule of law has no my opinion, merit. without bearing on the case at bar. There no is majority opinion intimation the needlessly repeating Without provision and cure the maintenance is regard the law of the with review the invalid, and indeed there would seem to injured am rights which is of an holding. no be sound reason for such a majority opinion, ply in the forth set between certain distinctions are there appellee entitled, Since thе general rights mari under seaman’s contract, union under the to the mainte rights the Jones law and time payments, I and cure nance turn to an Un must borne in mind. which ground Act possible for other reversal. The general who law a seaman maritime der appellant payments, contends that those or is ill becomes plus appellee by amount awarded the employment is entitled of his course recovery.” constituted a “double expense of and сure maintenance however, my opinion, they did rights part shipowner. are These compensation to excessive amount be seaman’s for the consideration of the verdict did not include cause ship, agreement and thus to work on the lodging and and there board for was no predicated on a claim that are appellee claim submitted for negligence expenses. appellee due to or If the illness actu medicаl ally expenses spent more than for of the vessel. unseaworthiness or Steamship Co., category and maintenance within cure, against quite consistent, think, claim which have no he would expressed. shipowner for this excess because views above In Perez the Likewise, if by the contract. claim fixed rate dismissed ship- merits, leaving only spent amount the less than for the claim “re- judge to claim a maintenance and be heard cure. owner cannot The trial having agreed in fixed to the rate the maintenance to after include the en- bate” tire to maintenance of the the contract. seaman’s “convales- separate cence,” despite dis- and payments was and cure the fact that he had been gainfully appellee’s employed during claim part tinct of that suffering wages pain deducting due to time. and and amount actually earnings payments made injury, thus from the awаrd we no did more way cure than reaffirm well principle settled appellee purpose amount to that the affected the of maintenance cure Jones under the in his suit is to make put was entitled whole, the seaman “to good position seaman in as Act. board in, he would have if words, In other he had not become ill.” And we added: disposed of had been because claim “If what he earned is added to the full no medical allowance, get something he will more in paid provided had been addition to his maintenance.” This is agreement; bargaining in the collective very thing saying different this action under asserted in the claim for in a case Jones Act sum Act was to be diminished made for $831, and for to exceed maintenance and cure. suffering; pain amounts of the collec- paid to the terms Similarly, Section 5 of the F.E. quite ir- were tive appellant L.A. does not entitle the to set or the claim for relevant to any portion off suffering; pain against maintenance and cure verdict the wisely properly judge refused trial recovered jury below because the payments and of these take specifically instructed not to include an to confine themselves instructed amount for board and in its subject of to lost on the words, verdict. other pro Section suffering. all pain and With defer- recovery just hibits double as does the my I a brothers think bаsic error ence to subject case law on and the reasoning is the connection in their in case at bar has not received such wag- appellee’sclaim for between see compensation. excessive made es and the pursuant judgment I would affirm appealed to the terms collective from. agreement. my view CLARK, Judge, Before Chief relation whatever one to two bear no HINCKS, LOMBARD, WATERMAN, I think that extent And other. MOORE, Judges. Lines, Circuit Guay v. American President that Cal.App.2d Ltd., 184 P.2d Rehearing On Petition for contrary to the expresses views it states be not followed. law should bad step PER CURIAM. by my only brothers can now taken majority judges A in active serv- delayed payments, confusion lead to having voted ice to 28 U.S.C. § uncertainty phase of a sea- in law of 46(c) a determination in banc of rights simple should be that men’s petition rehearing plaintiff’s for a of possible. clear judgment of reversal entered herein on 7, 1958, any difficulty April do I determination Nor find will be Plaintiff, suing seaman, a Perez made. Curiam in v. Suwanee un- Per so our just indicated, Act, 46 had have der the issue us is § the Jones U.S.C. before judgment of one of an recovered verdict and not affirmative for that a award injuries, only $1,600 personal purpose, of a or refund deduction sitting however, previously add, re- panel which the award. We opinion trial, depart that we previous rulings for a with an no reason to from our vеrsed new see by Judge holding' Swan, in concurred written effect dissenting Judge Waterman, form of and with trial the discretion of the trial Judges by Judge long Swan court so as care is taken see that Medina. participated in double and Medina present is not allowed. majority Cir., Co., decision. A Gonzales v. United Fruit 479, 480, judges participating views in the concur note v. Central Weiss Judge J., 309, 310, dis- expressed by Medina R. Co. of N. 235 F.2d Accordingly pre- senting opinion. note withdrawn, judgment vious of reversal Judgment аffirmed. district court judgment affirmed. and the below MOORE, Judge, Circuit concurs ruling previous was based result. finding part of the on a of error on judge holding evi inadmissible trial WATERMAN, Judge (con- Circuit by the defendant to dence offered curring). bargain it, pursuant to its collective I concur in the soon after union, paid, result. So ing agreement with the Cir., 1956, Perez v. Suwanee S. S. for maintenance en convalescence, banc affirmance 72-day period ruling exclusionary of the district cоurt’s per day, No of $576. total rate Hence, should be a unanimous court. for maintenance issue of allowance though majority judge I was that held and the cure was before specifically decision, our I charged otherwise in former now should join judges with the other active circuit and board cost of room consider the My previous of only circuit an affirmance. ma such convalescence. Our writing any separate excuse re- jority if exceeded held the $576 marks is that do wish the result for mainte plaintiff’s actual meaning interpreted reached here al nance, should have been the defendant more than the individual facts of this al the excess to deduct lowed justify. case leged avoid item lost compensation,” and hence “double upon Reardon based his libel bearing upon issue should this alleged he Act. He that was agree with But we admitted. been have employment solely thе course of his due per Judge of the amount Medina that negligence by shipowner’s and that to day in the collective item fixed for this upon reason thereof the vessel which he agreement a fair and bargaining employed unseaworthy. He did party pre-estimate neither proper particularize sought not repudiate. the defendant Hence could recover, properly were to limited say it when be heard money could for loss tо any incapacity of ‍‌‌​‌​‌‌‌‌‌‌​​‌​​‌‌‌​‌​​‌​​‌‌‌‌​‌​​‌​​‌‌‌​‌‌​​​‌​‍agreed-upon it plaintiff the paid resulting from his overpaid him. had prevented earning, him for his suffering. pain and presented parties ar have significantly libel Reardon did whether in this guments issue on the praying a for an include count allow- claim for of cases class ap- for maintenance cure. He heard ance not be or should should cure along pears to have well satisfied Act the Jones with successfully pre- particular; and he has much mooted text issue claim—an disclosing employer any as we vented But in other circuits. writers

377 580, Corp., Cir., 1956, employer S. 2 S. His relative thereto. facts 129, S., F.2d to a collec- Williams v. U. sought paid 986, 76 den., had certiorari it tive Bay day S.Ct. L.Ed. received $8.00 and he had him By Mead, Cir., 1937, of in lieu 88 F.2d 144. days allowance as such an present maintenance, our it receiving and that I not wish decision would actual Reardon’s understood I mention that the decisions exceeded sum so the total pur- longer expenses. applicable are no Its circuit. this actual maintenance money pay- excess pose have was to guarded Moreover, carefully as the money against the ment credited regret is, mention mention it sought his loss recover Reardon ways the court’s of the varied wages. money judges presently that district handle sought adjudication Reardon no claims for maintenance and cure when sufficiency respecting court district coupled such libel claims are the same day allowance, ade- or the the $8.00 Jones Act claims. There was 72-day quacy of duration these coupling here daily payments. court The district $8.00 held that these maintenance application claims as- had no Act, the claims serted adjudi- present it for Reardon did inasmuch as cation. It held that sought any allowance for libelant court, and cure respоndent show over- could not Henry MARKS, Appellant, it made out of court allowances therefor. America, UNITED STATES confusion, we Lest we further create Appellee. attempt should not to ascribe further No. 5793. support than

reasons to our affirmance upon. those the court acted Where below Appeals United Court States prayer in his the seaman has included a Tenth ‍‌‌​‌​‌‌‌‌‌‌​​‌​​‌‌‌​‌​​‌​​‌‌‌‌​‌​​‌​​‌‌‌​‌‌​​​‌​‍Circuit. granting for the libel allowance Oct. permitted maintenance and we have Certiorari Denied Jan. looking shipowners put in defenses See 79 S.Ct. 315. amounts toward reductions claimed. Perez S. v. Suwanee S. supra; S., Cir., 1956, Wilson v. U. Judge Frank where said of nature of the allowance sufficiently “it ‘contractual’ so the seaman has the ‘duty’ equivalent of the so-called to miti gate damages.” Supra page 281. And expended nothing

when the seaman has he seeks the

for the maintenance court to him, shipowners

allow heretofore it, thereby permitted pre show recovering venting any the seaman thing. S., Johnson ‍‌‌​‌​‌‌‌‌‌‌​​‌​​‌‌‌​‌​​‌​​‌‌‌‌​‌​​‌​​‌‌‌​‌‌​​​‌​‍v. U. 391, 92 Field 68 S.Ct. L.Ed. 1939, 104 Corp., Cir., S. S. v. Waterman Fruit Stankiewicz v. United

Case Details

Case Name: Albert Reardon v. California Tanker Company

Court Name: Court of Appeals for the Second Circuit

Date Published: Nov 6, 1958

Citation: 260 F.2d 369

Docket Number: 53, Docket 24583

Court Abbreviation: 2d Cir.