Before CLARK, Chief Judge, and HINCKS and LUMBARD, Circuit Judges.
Plaintiff brought this action for negligence under the Jones Act, 46 U.S.C. § 688, and maintenance and cure under the general maritime law. The court submitted the count upon the Jones Act to a jury, which returned a verdict for defendant. At plaintiff's request the judge then considered the count for maintenance and cure and granted judgment for plaintiff for $5,000 and costs.*fn1 Defendant has appealed on the ground that plaintiff was not a seaman.
Defendant operates ferryboats crossing the Hudson River between Jersey City, New Jersey, and Liberty Street, New York City. Plaintiff applied to defendant for employment in June, 1950, and was hired as a "ferry deckhand," who was to report for work on an "extra man" basis, i.e., when called to replace other employees who were absent from their regular duties. Plaintiff began work on June 14 and continued in defendant's employ until July 3, 1950. During this period he worked 7 days on ferryboats as a deckhand or wheelsman; and on 6 other days he was employed on shore as a doorman or bridgeman, jobs connected with the docking and departure of ferries. On June 21 he worked as a deckhand on the ferryboat Somerville; on June 25, as a deckhand on the ferryboat Wilkes-Barre; on June 29 and 30 and July 1, as a wheelsman on the Wilkes-Barre; on July 2, as a deckhand on the Somerville; and on July 3, as a deckhand on the ferryboat Westfield.
When he worked as a deckhand plaintiff's duties consisted principally in handling mooring lines and keeping the vessel clean. As a wheelsman he acted as lookout in the wheelhouse, kept the wheelhouse clean, chocked the wheels of the first few cars that were loaded on the ferry, adjusted the rudder pin, and for part of the time operated the wheel of the ferry after it cleared the slip. During the period of his employment plaintiff slept at home and ate his meals there (except for his lunch); he was paid an hourly wage and worked an 8-hour day with occasional overtime.
While employed as a seaman aboard the ferryboats Wilkes-Barre, Somerville, and Westfield, plaintiff became ill by reason of a reactivation of a latent condition of pulmonary tuberculosis.There was evidence that this condition was produced by the physical exertion involved in working aboard ferryboats, particularly the running up and down stairs incident to his duties as a wheelsman. Although during a prior period of military service and on several other previous occasions plaintiff had suffered from respiratory aliments, he had no reason to believe at the time of accepting employment with defendant that he was not fit for duty and that his respiratory complaints had not been cured. For a period of time after July 3, 1950, until July 12, 1950, when he was admitted to the United States Public Health Service Hospital at Staten Island, New York, plaintiff was confined to his home; and commencing July 8 he was treated by his family physician for pneumonia.
On July 8 defendant called plaintiff to go to work, but he reported that he was then confined to bed by illness. Thereafter he was hospitalized from July 12, 1950, until October 29, 1951. He continued to receive outpatient care, visiting the hospital "about every week" to get a pneumo refill, until February 23, 1955, when he was readmitted to the hospital for a resection of the diseased lung. He remained there as a convalescent tubercular patient until his discharge on June 30, 1955.
Judge Murphy found that plaintiff was a seaman entitled to maintenance and cure for the period of 40 months during which he received outpatient care and the 8 days from July 3, 1950, to July 11, 1950, before his initial admission to the hospital, and awarded him the sum of $5,000.Upon defendant's appeal herein, it contends both that plaintiff is not entitled to maintenance and cure as a seaman and that the award is excessive.
Judge Murphy's determination of the basic facts from which emerges the ultimate finding that plaintiff is a seaman entitled to the traditional right to maintenance and cure is not clearly erroneous. On the basis of his determination of facts, which we accept - see McAllister v. United States, 348 U.S. 19, 75 S. Ct. 6, 99 L. Ed. 20 - we think his conclusion cannot be reversed as a matter of law. For in addition to finding support in the many authorities discussed below, it reflects the ancient solicitude of courts of admiralty for those who labor at sea. See The Osceola, 189 U.S. 158, 175, 23 S. Ct. 483, 47 L. Ed. 760.
Generally the criteria for determining whether or not plaintiff is a "seaman" for purposes of maintenance and cure are the same as those governing his right to recover under the Jones Act, 46 U.S.C. § 688. See Swanson v. Marra Bros., 328 U.S. 1, 4, 66 S. Ct. 869, 90 L. Ed. 1045. If an employee is a "seaman" for those purposes, he is by the same token a "master or member of a crew of any vessel" within the meaning of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901, 903(a)(1), and is excluded from the coverage of that Act. For it was the purpose of the Longshoremen's Act to provide recovery for longshoremen and harbor workers previously unable to obtain it under state compensation laws, but at the same time to leave distinct and unimpaired the traditional rights and remedies of seamen, for whom maintenance and cure had long served as a kind of nonstatutory workmen's compensation. See South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 60 S. Ct. 544, 84 L. Ed. 732; Swanson v. Marra Bros., supra, 328 U.S. 1, 4, 66 S. Ct. 869, 90 L. Ed. 1045; Robinson on Admiralty § 36 (1939); cf. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 101, 102, 104-107, 66 S. Ct. 872, 90 L. Ed. 1099. The remedies of an employee encompassed by the Longshoremen's Act and of a "master or member of a crew of any vessel" (a "seaman" for purposes of maintenance and cure) are therefore mutually exclusive, Norton v. Warner Co., 321 U.S. 565, 570, 64 S. Ct. 747, 88 L. Ed. 430; and the problem now presented is to determine into which of these two categories the plaintiff here must fall.
Weighing against plaintiff's claim are the factors that he was employed aboard ship for only a short period of time; that during that period he slept and ate most of his meals ashore; that he was paid an hourly wage and worked for the most part an 8-hour day; that he was employed for part of the time on jobs ashore; that he was working on an "extra man," rather than on a regular, basis; and that he had no seaman's papers. Various of these factors have been singled out for expression in decisions which have held claimants not to occupy a seaman's status. See South Chicago Coal & Dock Co. v. Bassett, supra, 309 U.S. 251, 60 S. Ct. 544, 84 L. Ed. 732; Merritt-Chapman & Scott Corp. v. Willard, 2 Cir., 189 F.2d 791; Wm. Spencer & Son Corp. v. Lowe, 2 Cir., 152 F.2d 847, certiorari denied 328 U.S. 837, 66 S. Ct. 1012, 90 L. Ed. 1613; Moore Dry Dock Co. v. Pillsbury, 9 Cir., 100 F.2d 245. But while these factors deserve consideration they are by no means conclusive, or even perhaps realistically compelling, as other cases have made clear. See Norton v. Warner Co., supra, 321 U.S. 565, 64 S. Ct. 747; A. L. Mechling Barge Line v. Bassett, 7 Cir., 119 F.2d 995; Maryland Casualty Co. v. Lawson, 5 Cir., 94 F.2d 190; Carumbo v. Cape Cod S.S. Co., 1 Cir., 123 F.2d 991.
So here, where the vessels in question were, during the time of plaintiff's employment aboard them, engaged in continuous navigation involving the carriage of passengers and vehicles across the Hudson River and where plaintiff himself was at the wheel of one ferryboat, the Wilkes-Barre, for considerable periods of time, we think the factors named inadequate to require a finding of only land employment as a matter of law. We may note the testimony of the Wilkes-Barre's captain that, while serving as a wheelsman, plaintiff did "practically the same as a steady man would do" and that "the boy seemed to be so anxious to learn the business." The captain instructed him in the proper operation of the wheel in navigating across the river. Thus plaintiff, although employed on an "extra man" basis, was merely standing on the first rung of the ladder which would lead him to a regular position in the ferryboat service. Despite the irregularity of his work, he was performing the duties of a seaman and was entitled to the rights pertaining to that status. Though but a neophyte, he was a member of a crew actively engaged in navigation.
We recognize that to be considered a "seaman" for purposes of recovery under the Jones Act and for exclusion from the Longshoremen's Act the nature of a claimant's duties aboard a vessel is not controlling and that he need not be serving her in a strictly navigational capacity. See A. L. Mechling Barge Line v. Bassett, supra, 7 Cir., 119 F.2d 995, 998.Still we know of no case where an employee whose duties consisted of actually operating the wheel of a vessel has been denied the designation of "seaman," as traditionally and universally associated with his position. Thus in the leading case of South Chicago Coal & Dock Co. v. Bassett, supra, 309 U.S. 251, 260, 60 S. Ct. 544, 549, Mr. Chief Justice Hughes said: "This [Longshoremen's] Act, as we have seen, was to provide compensation for a class of employees at work on a vessel in navigable waters who, although they might be classed as seamen (International Stevedoring Co. v. Haverty, supra [272 U.S. 50, 47 S. Ct. 19, 71 L. Ed. 157]), were still regarded as distinct from members of a 'crew.' They were persons serving on vessels, to be sure, but their service was that of laborers, of the sort performed by longshoremen and harbor workers and thus distinguished from those employees on the vessel who are naturally and primarily on board to aid in her navigation. See De Wald v. Baltimore & Ohio R. Co., 4 Cir., 71 F.2d 810; Diomede v. Lowe, 2 Cir., 87 F.2d 296; Moore Dry Dock Co. v. Pillsbury, 9 Cir., 100 F.2d 245."
The Moore Dry Dock Co. case, cited supra and relied upon by defendant in this case, is clearly distinguishable on the grounds set forth in the South Chicago Coal case; for in the Moore Dry Dock case the plaintiff Howland was employed as a "rigger" and spent the greater part of his working time aboard a launch or tug which performed various tasks connected with the operation of defendant's shipyard. He was not one of "those employees on the vessel who are naturally and primarily on board to aid in her navigation." South Chicago Coal & Dock Co. v. Bassett, supra, 309 U.S. 251, 260, 60 S. Ct. 544, 549. In this case, on the other hand, plaintiff, as part of his assigned duties as a crewman, took the wheel of a vessel regularly engaged in the carriage of passengers and vehicles across navigable waters. Thus as "a man who [served] the ...