The Bouker No. 2
241 F. 831
2d Cir.
1917
Check Treatment
HOUGH, Circuit Judge

(after stating the facts as above). The problem presented by this appeal is to square the rights of parties with so much of the decision in The Osceola as declared that:

*833“The vessel and her owners are liable, in case a seaman falls sick, or is wounded, in the service of the ship, to the extent of his maintenance and cure, and to his wages, at least so long as the voyage is continued.” 189 U. S. 175, 23 Sup. Ct. 487 (47 L. Ed. 760).

The last phrase of this quotation deliberately (doubtless) left undecided the query, not involved in the case then at bar, whether a seaman’s right to maintenance and cure depended upon and ceased with, his right to wages. Upon this point opinion, even since The Osceola, has perhaps varied. Cf. The Nyack, 199 Fed. 383, 118 C. C. A. 67 (C. C. A. 7th), and The Mars, 149 Fed. 729, 79 C. C. A. 435 (C. C. A. 3d).

This court has several times adverted to the general rule, but always without reference to the time when the seaman’s privilege ends. Cornell Steamboat Co. v. Fallon, 179 Fed. 293, 102 C. C. A. 345; The New York, 204 Fed. 764, 123 C. C. A. 214; The Transfer No. 12, 221 Fed. 409, 137 C. C. A. 207. Numerous as are the reported litigations on this subject, we find, therefore, neither controlling authority, nor any complete consensus of opinion, as to the point left open in The Osceola, nor has our attention been directed to any decisions dealing with the cost or reasonable expense of .attempted cure; neither has the length of time during which the seaman’s right persists (in the event of chronic illness or long convalescence) received much judicial treatment.

[1, 2] Before considei'ing these questions, now acutely presented upon a meager and inadequate record, we may state our opinion that a seaman “falls sick, or is wounded, in the service of the ship,” if such misfortune attacks him while he is attached to the ship as part of her crew. It is not necessary that the wound or illness should be directly caused by some proven act of labor; it is enough that he was, when incapacitated, subject to the call of duty as a seaman, and earning wages as such.1 We further hold that an engineer, even on a harbor tugboat, is a seaman, within the meaning of the rule. If authority be needed for these propositions, it is found in the citations already made; indeed, there has been at bar no denial of their truth.

[3] The courts in this circuit have several times considered cases of seamen demanding cure after voyage ended, and consequent termination of the wage relation. Judge Betts’ earlier decisions (Nevitt v. Clarke, Olc. 316; The Atlantic, 1 Abb. Adm. 451; Ringgold v. Crocker, 1 Abb. Adm. 344) were reviewed by Judge Addison Brown in The City of Alexandria (D. C.) 17 Fed. 390, and The W. L. White (D. C.) 25 Fed. 503, with due consideration of Reed v. Canfield, 1 Sum. 195, Fed. Cas. No. 11,641, out of which opinion of Justice Story this subdivision of the law has undoubtedly grown so far as the American admiralty is concerned. Since The W. U. White it has been the rule of such of the District Courts in this circuit as have had the question presented to hold that a seaman’s right to maintenance and cure persisted for the duration of the voyage and a reasonable time thereafter, a doctrine largely based upon the words of Betts, J. (in commenting on Justice Story’s decisions), that:

*834“When a course of medical treatment necessary and appropriate to the cure of a seaman has been commenced and is in course of favorable termination, there would be an impressive propriety in holding the ship chargeable with its completion, at least, for a reasonable time after the voyage is ended, or the mariner is at home.”. The Atlantic, supra. ■

This view w'as enforced by Benedict, J., in The Wensleydale (D. C.) 41 Fed. 829, which is one of the very few cases of sickness, as distinct from violent injury, to be found reported. It was assumed without discussion by Adams, J., in The Charles H. Klinck (D. C.) 172 Fed. 1019, and there is nothing opposed thereto in The Bunker Hill (D. C.) 198 Fed. 587, where the point was' not in issue.

Thát the ship’s duty and seaman’s right do not terminate with the voyage has also 'been held in the First circuit (McCarron v. Dominion, etc., Co. [D. C.] 134 Fed. 762, per Lowell, J.; The Henry B. Fiske [D. C.] 141 Fed. 188, per Dodge, J.), in the Third (The Mars, supra; The Teviotdale [D. C.] 166 Fed. 481, per Holland, J.; Dougherty v. Thompson-Lockhart Co. [D. C.] 211 Fed. 224, per McPherson, J.), in the Fifth (The Lizzie Frank [D. C.] 31 Fed. 477, per Toulmin, J.), and in the Ninth (The Chandos [D. C.] 4 Fed. 645, per Deady, J.; Wilson v. Manhattan, etc., Co. [D. C.] 205 Fed. 996, per Cushman, J.; The C. S. Holmes [D. C.] 209 Fed. 970, per Neterer, J.). The question was argued in the Supreme Court of Pennsylvania in 1883, and a similar ruling made in Holt v. Cummings, 102 Pa. 212, 48 Am. Rep. 199.

On the other hand, the opinion of Justice (then District Judge) Brown in The J. F. Card (D. C.) 43 Fed. 92 derives especial importance from the fact that he also wrote in The Osceola, and in The Card distinctly impugned the authority of Reed v. Canfield.2 Nevertheless the latter case was not overruled by The Osceola, the question now under consideration was left open, and the very modern rulings above cited constitute a distinct weight of authority in favor of the doctrine laid down in The W. L. White.

It is noticeable, also, that, even in The J. F. Card, the court, though expressing views hostile to those of Story, J., concluded by awarding the seaman, not all he asked, but what seemed a reasonable allowance, a result wholly inconsistent with a strict limitation of right to a short voyage, and substantially like the award in Dougherty v. ThompsonLockhart Co.j supra.

On reason, also, we have no doubt that the seaman’s right to curative effort should not cease with the wage period. The demand constitutes a lien, not for any specific sum of money, but for whatever reasonable sum may be appropriate to discharge that lien, which lien arose once and for all, and in its entirety, when the mariner became ill or wounded in the ship’s service. It is nothing against a lien that it cannot be admeasured when it attaches, if suit can liquidate it; and in respect of this lien' it is more accurate to regard items arising after *835voyage ended, not as new demands, but as existing, but inchoate or unliquidated, at date of lien; i. e., of illness or wound.

We hold that the rule was correctly enunciated by Judge Addison Brown and that the duty of tire ship and owner persists for a reasonable time after the termination of voyage and wage relation. Of course it must begin before such termination.

The meaning of the phrase “maintenance and cure” is plain. By the custom of the sea the hiring of sailors has for centuries included food and lodging at the expense of the ship. This is their maintenance, and the origin of the word indicates the kind and to a certain extent the quantum of assistance due the sailor from his ship. We agree with the remark in The Mars, supra, that:

“Tiie word ‘cure’ is used in its original meaning of care, and means proper care of the injured seaman, and not a positive cure, which may be impossible.”

Furthermore, “cure” has been held to signify:

“The ordinary medical assistance and treatment in case of injury or acute disease, for a reasonable time. The ship is not bound to pay for (the sailor’s) medication for the cure of a chronic disorder for an indefinite length of time.” The Ella S. Thayer (D. C.) 40 Fed. 904.

Nor does the liability of the ship extend beyond — -

“expense of effecting a cure by ordinary medical moans. This does not include extraordinary medical treatment or treatment after cure effected as completely as possible in a particular case.” The C. S. Holmes, supra.

[4] It thus appears that the limits of cure or care, both as to kind of treatment and time of continuance, must always depend on the facts of each particular case.

[5] We take cognizance of the existence of the Marine Hospital service, where at minimum expense, or (in proper cases) none, a .seaman may be treated. It is not permissible for a person entitled to care from his ship (and equally entitled to have that care bestowed in a Marine Hospital) to deliberately refuse the hospital privilege, and then assert a lien upon his vessel for the increased expense which his whim or taste has created. It is one of the points upon which this record is insufficient that we are not properly informed of the knowledge of owners, master, or libelant as to what could be or might have been done in respect of Jones when he first complained of illness. Our inference from the meager testimony is that none of the parties concerned thought of the Marine Hospital; the fact being that, although libel-ant is technically a seaman, neither his master, employers, nor himself were sailors. Jones behaved like a landsman; indeed, he had worked as one not long before his employment on the tug, and at the time of this trial he was employed as the chauffeur of an auto-bus. It is not easy to adjust the rights of a seaman as between parties none of whom seem to think in terms of the sea.

As neither the owners nor master offered or suggested the Marine Hospital to this libelant, nor instructed him as to his rights in the premises, we think that the vessel remains responsible .for cure; i. e., care in the way of maintenance and ordinary medical treatment for a reasonable time. This does not include such extraordinary expenses *836as a private room in the Muhlenberg Hospital, northe privilege of procuring an operation, at rates current for well-to-do persons (as this evidence indicates).

The fact is that libelant’s conduct in regard to his illness was what would be expected from a land worker who “kept house” with an income.ample for a childless couple (which was Jones’ condition). He, of course, had the right so to do; but he has no right to charge his ship for the cost of illness, over and above what would have been appropriate in the case of a sailor living on shipboard.

Because no offer was made to send Jones to the Marine Hospital, we hold him entitled to recover for maintenance and cure as long as (so far as we can gather from this- evidence) he would have remained in the Marine Hospital, had he gone there — which we take to be approximately the date of his discharge from the hospital in Plainfield. This is 3y% months, or 105 days (i. e. $105), plus his doctor’s bill ($102), making a total of $207.

The decree below is modified, so as to award to libelant $207, out costs of this court or the District Court to either party; as so modified, it is affirmed.

Notes

This statement is made without overlooking the exception that sickness or injury occasioned by the seaman’s willful wrongdoing gives him no rights against vessel Or owners.

The J. F. Card cites the City of Alexandria (semble) as oposed to Reed* v. Canfield. This is a mistake; in the Alexandria the libel was dismissed, not because the seaman’s right had terminated, but because the court thought the ship had fulfilled its obligation, as imposed by Reed v. Canfield.