300 N.Y. 48 | NY | 1949
Plaintiff, then sixteen years old, was, while employed as a seaman on defendant's tug and tow proceeding through the New York Barge Canal, so seriously injured that his leg had to be amputated a few hours after the accident. The *51
young man's father was master of the tug at the time, and his father and mother arranged for urgently required surgical and hospital care. Plaintiff was confined in a hospital for about a month, then convalesced at his parents' home for more than two years. This suit was brought by the infant mariner, through his mother as guardian ad litem, to enforce defendant's obligation to pay for his maintenance and cure. Judgment was granted to plaintiff for about $2,700, made up as follows: about $1,200 for expenses paid or incurred by plaintiff's parents for hospital, physicians' and nurses' bill and an artificial leg, and $1,500 for the reasonable value of plaintiff's board and lodging at his famiy home. At the Appellate Division defendant argued, although no such point seems to have been made at the trial, that, although plaintiff's accident was, admittedly, in the service of the ship, he had no right to any award of maintenance and cure since he himself had neither incurred any expense nor obligated himself to reimburse those who had paid the costs. The Appellate Division majority held that "the circumstance that the parent paid for some of the items of maintenance and cure, without express agreement providing for reimbursement by a minor son, ought not to relieve the defendant from the obligation to pay therefor." (
It has often been said, in one form of words or another, that a seaman who is hurt or falls sick on a voyage, may recover from the shipowner, for "maintenance and cure", only such amounts as the seaman has spent or for which he has obligated himself (Calmar S.S. Corp. v. Taylor,
From the brief summary we have given, of the development of the American doctrine of maintenance and cure, it will be seen that the owner's obligation either directly to furnish necessary care and lodging, or to pay for it, is absolute. If the seaman pays for it, his employer must reimburse him. We do not see why the owner should escape this absolute contractual obligation merely because the parents of an infant sailor, in the emergency situation of a grievous injury, went ahead and, as parents, obtained and paid for what their son immediately needed.
It is ancient learning that seamen are the wards of the admiralty courts, which are particularly solicitous as to their rights, and that the policy of the law maritime is to avoid the application, to seamen's cases, of the harsh rules of the common law (Gabrielson v. Waydell,
Certain other facts confirm the propriety of an affirmance here. After the accident, the young man's parents, on his behalf and their own, commenced an action against this defendant. That action, as originally brought, demanded full recovery for the injured man's pain and suffering, for the parents' loss of his *54 services, and for the cost of his treatments. An attorney appeared for defendant and informed the parents that he (the attorney) represented an insurance company whose policy covered all defendant's liability to plaintiff and his parents except as to maintenance and cure, which latter was the subject of another insurance policy issued to defendant by another insurance company not represented by that attorney. Arrangements were then made whereby the parents' claims and the infant's claim, except for maintenance and cure, were compromised and the compromise amounts paid, the infant's settlement being duly approved by the proper court. The settlement papers made it clear that the maintenance and cure items were specifically excepted from the compromise, and the complaint in this action was then amended to cover maintenance and cure only. The second insurance company, through a different attorney, then took over the defense. These circumstances, we think, are further proof that this defendant, insured by two different insurers, has so far performed only part of its duties toward these people. Insured or uninsured, defendant itself is liable for this debt. When the original settlement was made, defendant through the attorneys who first appeared for it, knew of this claim for maintenance and cure and, without indicating any objection to it, arranged that the compromise documents should specifically exclude it. Had the action continued as originally brought, as a negligence suit, plaintiff's parents, as part of their own damages, could have recovered for the same items which are contested on this appeal. It would be inequitable and inconsistent with maritime law principles to let this contest succeed, because of a series of incidents not related to defendant's liability, but resulting from the fact that defendant carried two liability insurance policies.
The decisions referred to in appellant's brief and in the memorandum filed by the Appellate Division minority, do not forbid recovery here. Some of them, like our Sonnesen case (
The judgment should be affirmed, with costs.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DYE, FULD and BROMLEY, JJ., concur.
Judgment affirmed.