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November 20, 1956

Juan FUENTES, Libellant,

The opinion of the court was delivered by: LEVET

This is a libel action by Juan Fuentes against the Panama Canal Company under the provisions of the Jones Act, 46 U.S.C.A. § 688 and the General Maritime Law for the recovery of maintenance and cure.

Libellant was employed as a wiper on the S.S. Ancon, owned and operated by the Panama Canal Company. His term of employment was from October 10, 1955, to the time the vessel, bound for the Canal Zone, returned to the City of New York. The employment was subject to the terms of a contract between the respondent and others on the one hand and the National Maritime Union on the other, which in Section 6 thereof contained the following provisions:

 ' § 6. Maintenance and cure benefits.

 '(a) Crew members who are entitled to maintenance under the General Maritime Law Doctrine of wages and maintenance and cure on account of injury or illness incurred in the service of the ship shall be paid maintenance at the rate of $ 8.00 per day, with payments to be made once weekly.

 'Wages, maintenance and cure, under such doctrine, shall not be withheld in any case merely because the claimant has also submitted a claim for damages or has filed suit for or has taken steps toward that end.'

 The S.S. Ancon sailed from New York on October 13, 1955, and arrived at Cristobal, Panama Canal Zone, on October 19, 1955. While there, libellant was on leave at least from day to day, and apparently returned to the ship each night.

 On October 22, 1955, libellant returned to the S.S. Ancon at about 1:00 P.M. According to one Beverly Ricker, Senior Third Officer of the ship, libellant appeared to be coming out of a 'terrific drunk,' his eyes were glassy, he was swaying and seemed to be in a stupor. It also appears that at about 3:00 P.M. the same day, libellant attempted to commit suicide by throwing himself over the side of the ship.

 The Corozal Hospital record also shows that because of libellant's behavior and evidence of certain auditory hallucinations, he was taken off the ship at Cristobal on October 22, 1955. After first being taken to the Gorgas Hospital, where he attempted to jump out of the window, he was transferred on the same day to the Corozal Hospital, with the diagnosis of acute schizophrenic reaction. Libellant was admitted to a mental ward. He was discharged on November 4, 1955 and placed on the respondent's S.S. Cristobal to return to New York. Upon his arrival in New York on November 10, 1955, he was admitted to the Public Health Service Hospital on Staten Island and remained there until November 15, 1955. The final diagnosis there was schizophrenic reaction, acute undifferentiated type. The disposition entered on November 15 was as follows:

 'The patient was discharged from the hospital 11/15/55, as unfit for duty, from a psychiatric point of view. His seaman's papers were removed by the Coast Guard during hospitalization, and patient was advised to contact the hospital after about six months time in connection with re-evaluation for a fitness for duty certificate.'

 Libellant was examined by a physician for the respondent before employment and was in effect marked fit for duty. Libellant, however, failed to reveal that he had been in the Bellevue Hospital from August 20, 1955 to August 29, 1955, or that he had been hospitalized at the Public Health Service Hospital on Staten Island during the period from August 29, 1955 to September 22, 1955. Although while at the Public Health Service Hospital libellant had been operated on for appendicitis, the diagnosis was the same as that in the later hospitalizations, to wit, schizophrenic reaction, acute undifferentiated type. However, at the time he was discharged by the hospital on September 22, 1955, he was marked 'Fit for duty.'

 No proof was submitted with respect to any unpaid wages and consequently the respondent's motion to dismiss this portion of the claim was granted.

 The remaining claim is for maintenance and cure at the rate of $ 8 per day, as appears by the aforementioned union agreement, for a period from November 15, 1955, the date of hospital discharge, to June 1, 1956, when libellant was certified fit for duty. Libellant admitted that in January 1956 he believed himself capable of working and that he appeared at the Coast Guard, which had lifted his papers, as hereinabove shown; that the Coast Guard said he must secure a certificate of fitness.

 There was no proof of expenditures of any sums for medical attention or psychiatric treatment of any kind.

 The general nature and character of the right of maintenance and cure has been stated in Smith v. Lykes Brothers-Ripley S.S. Co., 5 Cir., 1939, 105 F.2d 604, certiorari denied 308 U.S. 604, 60 S. Ct. 141, 84 L. Ed. 505, as follows:

 'The duty to provide maintenance and cure for a seaman falling sick or injured in the service of his ship is an obligation in additon to mere wages and keep during the term of employment. It is an incident to the contract of service, may extend beyond the termination of the voyage, includes care, nursing, and medical attention, and rests upon the seaman's need, not upon the negligence or culpability of anyone.' 105 F.2d at page 605.

 The respondent contends that the libellant held himself out as fit for duty when, in fact, this was not true, and that, therefore, he cannot recover maintenance and cure. The rule stated in Ahmed ...

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