Loverich v. Warner Co.

CLARK, MARIS, and GOOD- Before RICH, Judges. Circuit GOODRICH, provision Judge. make for maintenance Circuit imposed by cure is “annexed the law admiralty to recov action This ” * * * an inseparable incident maintenance er parties. relation of the Cortes Bal the libel appealed; Each side cure.1 Line, Inc., 1932, timore Insular 367, 372, limit award too the was lant claims that 173, 174, 77 L.Ed. ed; respondent no award claims the that The nature obligation and extent of this made. at all should have been owed to the seaman has dis recently been Loverich, libellant, was in The Frank B. by Corp. cussed court in Calmar S. this S. respondent employ in 1925 and the of the Taylor, Cir., by 92 F.2d respondent’s employee upon sole the was case, 1938, Supreme Court in the same the barge According to his oil called “01”. 82 L.Ed. 58 S.Ct. testimony began fol- he to suffer hoarseness of right It is clear that the such mainte barge during a fire on the in lowing not nance is restricted to those cases where extinguishment 'of was ex- the which he employment of the is the cause seaman’s posed smoke The condi- and weather. clear, also, It is the illness. now that the tion of his throat became and the serious obligation may continue after termina the aggravated. June, In more hoarseness voyage of injury tion the in is which began spells. dizzy 1933 he suffer from sustained or begins. points an illness Those by physician employed He was examined the definitely settled by the decisions by company the who found libellant suf- litigation. the Calmar arteriosclerosis, fering from advanced malig aphonia acquired this If Loverich laryngitis, and left incom- chronic nancy employed throat while inguinal physician the plete hernia. rec- respondent company for the then the man seaman to the was ommended that though work, and cure arises even poor “especially risk of maintenance around ma- boat, by anything was caused incidental chinery or not extreme heat.” He to his did not seek to establish discharged July was work. Libellant on exposure to smoke and weather given of He a letter was recommendation cancer, although caused the throat there good forth setting long his character and testimony was some medical to the effect stating and faithful service that he - obliged exposure that such if could a factor was to leave because of illness. hospitalized predisposition he there was a fall was that disease. That in New York n Likewise, testimony discharged there was stay. and was after two that with months type patient employed by malignancy he was this of Then Reading could Company active really for fourteen and around until it months. He “took was hospitalized again a few him off his is days history for feet”. There of and short- ly laryngitis, improved thereafter secured chronic position by another once treat ment, becoming for gradually continued about fifteen but months. worse Dur- over period ing years. company’s this his the course of gradually physi condition be- suspected syphilis came worse and both cian his voice and or cancer breath- discharge by were affected. he re time of Loverich’s entered the Philadelphia Hospital General spondent. treat- It was until time of operated ment and was on for operation Philadelphia throat con- General Hos diagnosed dition which was pital biopsy gave that a the basis for the cancer. Rubber tubes were testimony inserted diagnosis in his definite of cancer. The throat permit him X-ray to breathe support sufficient conclusion treat- following operation. continued plaintiff’s illness during arose his em therapy This has relieved respondent, ployment by condition that it but was , somewhat. employment. by such caused problem presented ’by question this Then arises the of the ex litigation what, any, respondent’s is the obligation, leaving tent employer under the consideration, moment, maritime law out for the of maintenance which, course, and cure fact libellant was discharged really means maintenance respondent and care.2 The he worked for some time originally begun was Corp. Taylor, As action Cir., Calmar S. S. indemnity, thero was also a claim 92 F.2d 84. has been withdrawn. this was examination syphilis. No Calmar dence In the employers. two other pres- was cancer in made ascertain whether was the seaman case he If out. to ent man was turned and the subject was disease which curable in one cancer already suffering from was surgical treatment. amelioration hardly could stages he lump developing of its awas approved in this court award per- employers for past subsequent look to meeting both defray cost sum to do not obligation. We needs, formance of this based anticipated future needs keeping see how his self-reliance own The award expectancy. life on his preclude could should going as he for three reasons: reversed lump sum was respondent. against recovery of medical character amount and (1) The meas cannot be required in the future all, question whether The last hos tables; marine mortality (2) ured claim, barred any part libellant’s expense of treat down the pital services cut in Oc started by This was laches. case seaman; duty to safe (3) the the ment for discharged libellant was tober of 1939. ill danger of “from the guard a seaman July of 1933. respondent’s service in from guard him succor,”3 and to ness without of Court, analogy applying the District by pay met the improvidence is not against for limitations Pennsylvania of statute the expenses for lump cover sum to ment of only recovery claims, allowed contractual The Court during life. attendance year the six beginning with period for a duty, case in the of the said that the limit lower agree with the limitation date. We by the incapacity’is not caused the where obligation a con theory that the court’s “beyond a fair employment, was its extent Therefore, to the failure re one. tinuous voyage in which effect the to after time year period prior the six for time to cover seaman’s condi improvement in the such necessarily recovery lat for not bar would reasonably expected re tion as delay suit bringing the er time if the care, nursing, and medical treatm from sult not, itself, constitute laches. The anal did in that case Under the decision ent”.4 limitations, however, ogy to statute of the for an award here is entitled to libellant analogy not a rule. Pan- and pe a reasonable and cure for maintenance Franquiz, Trading D.C. Co. v. American employment following the term of his riod S.D.Fla.1925, “Laches con 8 F.2d respondent payment by the is relieved unless elements, delay in inexcusable of two sists employment subsequent by libellant’s the prejudice resulting instituting suit and laches. delay. Its exist from such defendant the case, equities depends upon of the should make the What difference ence lapse upon time.” merely of following case because the ter and the libellant’s not Works, employment respondent Alex Dussel Iron of his with mination United States 535, Cir., 1929, successively Inc., em F.2d 536. We do he worked other two part delay on the assuming during period any that inexcusable such not find ployers, compa this case. The originat from the disease libellant in he was of the employment respond during ny’s physician the had advised him that treat his point part the Upon help find his ailment was no of com ent? this we no ment of believe, however, he see his pany’s that should the authorities. We business that employ something physician. He secured other while this is extension own imposed kept going as he could. under the rule the case, justified by brought soon after he had it is funda was Calmar action upon he still principles upon and while was operated which the mental Philadephia Gener maintenance and cure is bottomed. treatment at under any prejudice see Hospital. man did vol do we be noted this Nor al respondent untarily respondent’s employment. resulted to from leave the necessary go delay. were back dismissed on a recommendation of If it He was negli physician involving existence of company’s questions who advised company poor 1926 and witnesses that he was a risk. like gence disappeared problem might physician admitted on cross-examination died or had But claim for examination indem libellant different. problem this syphilis case does not from of the thought nity he had or cancer out he records are as Medical available laryngitis. There evi- arise. the chronic is no 525, 651, 4 1938, 530, 531, 3 1938, 525, 651, U.S. 58 S.Ct. U.S. 82 L.Ed. 993. 82 L.Ed. 993. up now as earlier. We of the trial do not believe that since date prej- any application period ending April doctrine oí laches has 30. This without libellant any case. later suit udice which he and cure to recover maintenance Coupled question with this re may entitled. then be spondent further urges that if libellant makes a claim arising CLARK, (dissenting). Judge March 1927 Circuit only possible claim Longshore is under the dissent of this writer With diffidence1 men’s and Compensation Harbor Workers’ misjudge brethren learned suggests that his Act, Stat. sec. 33 U.S.C.A. § Supreme scope decision 905. This expressly exempts statute S.S. leading case Calmar Court provisions its a “master or of a member our own up from Corp. Taylor2 (coming any vessel”; crew of 2(3), 33 U.S. § § misconception, if Circuit3). Such 902(3), C.A. 903. We believe that Lov §§ least one text one, expected has been exception erich came within the as ex opinion discussing the Calmar writer. plained applied by Supreme Court keep is to bit says: he “Thus the seaman in sett, 1940, Chicago South Coal & Dock Co. v. Bas long re cherry. But how ing at his 60 S.Ct. The case does as before. hazy mains L.Ed. 732. He was a coal chute a mere watcher of however, dis indicate, an incurable claimant was in that employment arising ease out —that case. He was junior a engineer licensed is, occupational disease re disease or a and water qualified tender and as an able employer’s negligence— sulting barge master, seaman and 2nd mate and liberally’, though ‘more would be treated 3rd slept mate. He ate and on board the differently just is not stated.” Robin how barge. During employment he was 299, 300, pp. Admiralty italics ours. son on paid by the operated month. He the entire right “mainte man’s seafaring The barge, whose voyages sometimes took six ancient back to the dates nance and cure” was, weeks. He therefore, judg in our the Laws Article six of the sea.4 laws of ment, worker, not a harbor but a seaman. by “If the master’s orders reads: of Oleron company ship’s any of and commands The unit cost in of maintenance thereby ship, and of the in the service be stipulated case has been between the hurt,, otherwise happen to wounded or be parties day. per as The case is remand $2 pro they shall be cured and case judgment ed directions to enter for the charges of the at the costs vided for libellant at this rate as follows: From the ship.”5 duty is relational and said period discharge present, to the ex job Its char partial insurance.6 provides periods cluding (a) therefrom when he was has stated: acter been employed wages employers for other periods hospitalized (b) when he was country: un “The of maintenance- In this rule der circumstances where he striking was under no forerunner of work- is a and cure expense. acts, Following the compensation perhaps direction of as the men’s it Supreme Court Corp. in Calmar S. S. assertion of first care for Taylor, supra, may regard there injured be included in workman without or sick workmen’s, of the discretion court below such party. amounts either fault of Unlike acts, be however, needful compensation immediate it future does stipulated up permanent at the rate including provide damages disability, for April 1941. There wages also includ loss of termination ed care, widow, child, the cost of whatever voyage, benefits or any, may reasonably dependents have been wrongful incurred other or death.. view Injuries man er for Co., L.Ed. -. 1 ^[4] Smith, 2 3 Cir., The dissent January Develops 418; Maintenance Liability 92 F.2d 84. Admiralty Liability Seamen, 13, 1941, Incurable in Sibbach 58 in the and Cure 19 Harvard Law — 61 Disease in Serv Admiralty S.Ct. v. Wilson & When Sea 82 of Own L.Ed. For Re 85 ice, sonal miralty Law, Article Robinson, of the Hanse Review Ordinances, Harvard Law Review 223. Robinson, Cf. Laws of 24 Injury II; Virginia 283. Louis Towns, Legal Pet. 16 Boston Seaman Wisby, Law XIV, Admiralty Adjustments Maritime Article Review 920 Article Bk. University American Ad III, 39; Decisions. 18; Industry,. Title of Per- Marine- (note); Laws, Law 4,. April 1928 4th of include “Until law tort, liability in it does not Unlike law up the maritime set insurance compensatory damages pain, respect than in that Pillsbury, liberal was much more disfigurement.” Jurisdiction law; only then that it was Workers, business Injuries 18 Vir- to Maritime Over responsible for dis- employers were made ginia Law Review provided injuries as ease well as And France: April law 1898.” of the 9th of timeless almost a tradition “Pursuant de Danjon, Droit Manuel Translation: obliged to furnish shipowner Premier, Mer, de Maritime, Chapitre Gens are wounded fall sick or sailors who L’Armateur, V, Obligations sub de section in his service. Des Medical Gens Traitement section significant as- of the most “That is one pp. D’Equipage, 101-102.7 much has been pects in which maritime law counterpart: applying civil have progressive than its cases the doctrine more recently implications comparatively chiefly troubled imposed April 1898 early “cure”.8 It was decided law of the 9th word responsibility upon employers guarantee for industrial had element of no should accidents; Ages interpreted original Middle in its of care.9 ever since the sense 7) ap- thought narrowing (articles that even such Laws Oleron Some principle imposed great ship em- plied shipowners too a burden on the England,10 continent,11 ployers’ liability. owner. on the presque wages.” 7 “D’apres im- tions from their J. une tradition P. Card, D.C., memoriale, faire donner 43 P. l’armateur doit qui Admiralty, tombent malades Robinson on des aux marins cases cited soins p. Admiralty 298; “Care, service. Rule ou sont blesses son Cure, Wages” Applied to the plus points les saillants “C’est un des' Lakes, Michigan Great Law Review grande- lesquels maritime a le sur Droit (note). le c’est devanee Droit terrestre: ment of, or a “The master seaman be l’epoque contemporaine que a seulement longing to, ship any who receives hurt la re- loi avril a institue la du 9 injury ship, or in the service of the or patrons pour sponsabilite acci- des les any illness, being from suffers due Moyen industriel; le travail des dents du act, default, wilful own or misbe 7) (art. Age, avai- les Roles d’Oleron et6 haviour, medicine, is entitled to medical principe applique du le aux armateurs ent risque professionnel. advice, cured, and until he is maintenance dies, proper or is to a returned return organi- “Jusqu’a la loi du 4 avril 1928 expense port at the of the owners.” 30 sociales, mar- les assurances le Droit sant Halsbury’s Ed., p.‘ England, Laws of 2d beacoup plus large egard etait a cet itime que 215, italics ours. pas industriel; car n’est le Droit ce Rayner, 1903, Anderson Cf. 1 K. B. blessure, comme la en cas de seulement aussi en cas de loi du 9 avril mais exceptions lasting are “Xet made of qu’il responsabilite maladie, etablissait la disorders such sen, the venereal.” Jacob- Danjon, Original: employeurs.” des Sea, Laws of from the translated the Maritime, cited, Manuel de Droit above German, p. 144. pp. 101, 102. Code “As the of Commerce did not fix Card, Brown, In Mr. The J. E. Justice shipowner’s obligation of limits the the judge the district Eastern Dis- then of it lasted until of the cure the ship- Michigan, speaking of of sailors trict sailor. This could resulted in a ping Lakes, Great said: on the heavy if not excessive burden on the ship shipowner. say that the So the law of 12th of “To of this the Au- every gust permitted captains the the cure of man of [its extends to to free happens shipowner to be taken or re- the of crew] who sick cost treat- injury upon by landing injured vessel, sick and while ceives and disability may long putting in the of how hands the state no matter sum imposing prescribed by continue, has been be a burden decrees of would beyond September of 1912 and owners far that con- 8th the 81st vessel required August templated law, or of humanity. The $ will of court interests ^ “According judicial to the terms of notice of the fact that ma- Article 80 take Code, affirming previ- prin- hospitals Maritime established at the rine jurisprudence, given ports nursing cipal care to and cure ous be to a lake supported by due not sailors, to be when which are deduc- sailor ceased of convention,12 question may depend finally by The answer international to the legislativé precision have on which of considerations of Mr. limitations Jus States, Story’s passage tice the United classic Harden introduced. however, Gordon14 should be stressed. The learned Congress has been content with, gave these two the rule: reasons for leave the courts a free hand Justice “ * * * hand, if satisfactory On the ex thought, altogether results. other these penses charge upon ship, are a the inter rejected judges the insistence that will immediately est owner con the voyage. ended with One of nected with that of the seamen. The master them observed: “This rule undoubted vigilance will over their watch health with subject to ly be variations. When a course fidelity. methods, He will take the best treatment, appro necessary diseases, prevent as well as to ensure seaman, priate to the cure of the has been speedy recovery from them. He will never and is in commenced termination, a course of favorable tempted to abandon sick to their for impressive there be an would fate; duty, combining lorn but his with the propriety ship holding chargeable interest of his owner lead him will to succor completion, with its at least for a reason distress, cheering their and shed a kindness voyage able time after ended or the anxious over the despondency. hours of Judge mariner is at home.” Betts in The Beyond this, is great pub Atlantic, Abb.Adm. 480.13 lic policy preserving important class just beyond But port how far and how of citizens for the commercial service and far towards the conversion of the merchant Every defence of maritime nation. act public marine into health service the legislation healths, which secures their go, puzzling. courts should Judge has been comforts, increases their and administers to expressed Hough bewilderment: infirmities, their strongly binds them more “ * * * find, therefore, we neither con- country; parental to their law, trolling authority, any complete nor con- which relieves them in sickness fastening opinion, point sensus of as to the open left ship, their interests to the pol inwise Osceola, in The nor our attention been icy, just obligation. Even the any directed to decisions dealing with the merchant himself derives an ultimate bene expense cost attempted or reasonable fit from at seem first an onerous what cure; length neither has the time dur- charge. encourages It engage seamen to ing which right persists the seaman’s (in perilous voyages with promptitude, more event the lescence) of chronic illness wages. and temptation conva- lower diminishes judicial received much plunderage upon treatment.” to approach 2, Cir., 831, sickness; The Bouker No. 2 241 F. urges 833. of and the seamen to en- Ies malades une somme liberer entre les traitement lieu, par lourde, mar.), durait H incurable.” armateurs. (reproduite L’Armateur, Medical decret du de relative is healed uel sailor Gens de “Aux ¡i: $Le pouvait limite de ^[*] is cured Code Droit a-t-elle jusqu’a ^[*] les armateurs terms si aux Des Mer, 8 un mains resulter en faisant ce en cela septembre Aussi une de soins; done, when Translation: qui Maritime, Ghapitre Premier, ou Gens subsection decret due 31 aout 1927. de 1’art. l’obligation n’est section commerce n’avait autorise but la blesses, a ete tarifiee de l’autorite par de guerison D’Equipage, also excessive, loi transporter 1912 la illness V, de tons l’art. les when du en une 3, et en Obligations de l’armateur Danjon, O. trav. et, 12 aout 1885 principe, capitaines des has charge Traitement en dernier francaise pour frais pp. G. pas par versant marins. become injury mar., Man- trav. terre fort fixe elle un les de de lieved of nish medical ternational Labor Conference at may bility coverage uel not where there mary However, October les soins a dus, cluding nue incurable.” sory insurance, confirmant consolidee, abled gueri, “ ^[12] Cf. The de Fed.Cas. No. less than 105. non limit issued ‘The person mais has Droit board and 6-24, seulement national liability ou donner shipowner la the insurance encore by Department has been cured or Osceola, L.Ed. care Maritime, quand 16 jurisprudence arrangements Original: 6,047. au lodging, weeks. and quand shipowner may declared lorsque laws or la maladie est deve- marin cessent d’etre the extent of the 189 U.S. these maintenance, above required la blessure est plans.” Danjon, until Ie expenses permanent. regulations anterieure, Labor, marin cited, countries Geneva, compul- to be Man- Sum- disa- fur- dis- In- pp. re- in- est time n service, voyage ship’s beyond after the counter hazards in the tends fair they might disposed improvement which otherwise be in which to effect such Gordon, reasonably be withdraw.” Harden v. 11 Fed. seaman’s condition 480, 483, 6,047. pp. care, nursing, Cas. No. expected to result from medical treatment.” Supreme Court The United States position. yet take a not had occasion to cit- Taylor, Corp. above S. S. v. Calmar S. Calmar only point in S. decided ed, The Corp. ours. italics cited, one Taylor, was the above passages leads comparison A of these Osceola, open” in above cited. “left The “benefit” The test is conclusion. the seaman The lower courts had awarded “improvement”. in mean- As some but is lump voyage. The sum for care synonymous, a differ- ings the words are Supreme lump sum Court reversed one sought. logical ence be must judgment remanded directions assigning “improve- would seem be in n further proceedings. proceedings be- Such Any aspect permanency. ment” an due, ing the determination of amounts words, my therapy, brother’s scientific use ship- holding ex necessitate extends of alleviation— benefits at in a sense least liability beyond port. ex- owner’s unfortunately, may not do more. scope pre- act of such extension is not beyond the goes view the award In this because, scribed. could as Mr. be years majority decree six testimony. The Stone said: have “The courts below Justice care. (approximately) maintenance findings made no enable sufficient to us for cancer— “indicated” fix respondent the amount which is enti- X-rays. They unquestionably “benefit” the tled Corp. to recover.” Calmar S. S. sketchy examination of sufferer. Taylor, 525, 532, 58 S.Ct. uncer the writer leaves witness 655, 82 L.Ed. 993. “improved”.15 of the word tain as to use Any are, Highest words of our Court explain not further characterize or He does however, properly persuasive and must bring the case within this dissent’s and so ^ pertinent appear page examined. Those on interpretation dic of Mr. Stone’s Justice opinion U.S., 530 of the Court’s on reason, prefers tum. For that the writer page S.Ct., 82 L.Ed. 993: pre proceedings. a remand for further He questions “There bar, remain whether fers it not case at the case of a widespread impli chronic illness the con- but also because tinues so as medical problem. attendance and Both cations of seamen and beneficial, care are until death shipowners rights need are entitled know their lasts long, so lump whether a obligations sum cases dread of this so defray awarded to meeting prevalent the cost of disease. * ** anticipated need. ig seen Although courts have fit to support policies “But we find no it, of confusion in the illustration nore generated the doctrine for hold- in the indiscriminate manner rule found imposes ship on personnel. owner application to Formulat of its indefinitely continuing obligation ed, Story’s already to furnish in Mr. words Justice “perilous service”, care to a seaman afflicted quoted, disease, incurable which manifests itself the hazards of the garbage saves employment, during or, here, dump16 Philadelphia but is not caused harbor. advised, it. as we shipowners’ attempts So far it is with- to call whatever support out purposes the authorities. floats “vessel” for the lim We can that, find no for saying present if the dis- basis itation of inverse ana proves incurable, ease to be logy.17 ex- U.S. Diamond Coal 17 Craig 15 Record, p. ^[16] The Bouker v. Continental & No. Coke Co. v. Iron Ins. Cir., L.Ed. Co., 886; City F. Hazelwood denied S.Ct. Sand Ferry Co., Diamond Coal Co. 3 68 L.Ed. Dock Cir., Co., Stone, 297 1197; F. & U.S. Cir., Coke Co. Grays certiorari 46 F.2d Land

Case Details

Case Name: Loverich v. Warner Co.

Court Name: Court of Appeals for the Third Circuit

Date Published: Mar 17, 1941

Citation: 118 F.2d 690

Docket Number: 7517, 7559

Court Abbreviation: 3rd Cir.