Before LUMBARD, Chief Judge, MEDINA, Circuit Judge, and JAMESON, District Judge.*fn*
On April 15, 1952 appellant Aston Bartholomew, a seaman, was assaulted by a fellow crew member aboard the Ulysses, a vessel owned by appellee. He brought suit, alleging three claims: negligence under the Jones Act, 46 U.S.C.A. § 688, unseaworthiness under the general maritime law and maintenance and cure. The first two claims were submitted to the jury and the trial judge reserved the maintenance and cure claim for decision by him later as a judge in admiralty. The jury returned a verdict for $25,000 less $400 paid to the defendant for a release which the jury concluded was not binding. Both parties agreed to have the decision on the maintenance and cure claim put off until after the determination of the appeal from the judgment entered on the jury's verdict. We affirmed the judgment in Bartholomew v. Universe Tankships, Inc., 2 Cir., 1959, 263 F.2d 437, and the Supreme Court denied certiorari, 359 U.S. 1000, 79 S. Ct. 1138, 3 L. Ed. 2d 1030. The trial judge subsequently dismissed the claim for maintenance and cure on the grounds that: (a) he believed the verdict amply compensated Bartholomew "for whatever he would ordinarily be entitled to by way of maintenance and cure"; and (b) it was to be presumed that the "items" of Bartholomew's claim for maintenance and cure were included in the verdict. Bartholomew appeals from the decree of dismissal.
While Bartholomew insists that there is no reason why he should not be permitted to recover "full damages" in his "damage suit" and "also collect full damages in his maintenance and cure action even though there may be overlapping of damages or double compensation," the uniform course of authority has been to the contrary. E. g., Yates v. Dann, 3 Cir., 1955, 223 F.2d 64, 67; McCarthy v. American Eastern Corporation, 3 Cir., 1949, 175 F.2d 727, certiorari denied, 1950, 338 U.S. 911, 70 S. Ct. 349, 94 L. Ed. 561; Muise v. Abbott, 1 Cir., 1947, 160 F.2d 590; Smith v. Lykes Brothers-Ripley S. S. Co., 5 Cir., 1939, 105 F.2d 604, certiorari denied, 1939, 308 U.S. 604, 60 S. Ct. 141, 84 L. Ed. 505. We hold that no such overlapping or double compensation is permissible.
The problem before us for decision is, how to determine whether or not on the record before us any allowance whatever for maintenance and cure would necessarily constitute a double recovery. This problem is particularly interesting as the numerous cases on the subject are seemingly in conflict and there has been comparatively little discussion of the principles controlling the decision of particular issues.We have concluded that there can be no further recovery for medical services and "cure," but that there must be a trial of the issues arising out of the claim for maintenance, or board and lodging.
Few legally protected rights have so ancient and international a lineage as the right of a mariner, injured or falling ill in the service of his ship, to medical treatment, food and lodging, and wages. As the Supreme Court has very recently noted: "Markedly similar provisions granting relief of this nature are to be found in the Laws of Oleron, promulgated about 1150 A.D. by Eleanor, Duchess of Giuenne; in the laws of Wisbuy, published in the following century; in the laws of the Hanse Towns, which appeared in 1957; and in the Marine Ordinances of Louis XIV published in 1681."*fn1 Mitchell v. Trawler Racer, Inc., 80 S. Ct. 926, 929. In the United States the seaman's rights to maintenance and cure were first recognized by Mr. Justice Story in two cases which he decided on circuit, Harden v. Gordon, C.C.D.Me. 1823, 11 Fed.Cas. p. 480, No. 6,047, and Reed v. Canfield, C.C.D.Mass.1832, 20 Fed.Cas. 426, No. 11,641. In Harden v. Gordon, supra, after an extensive survey Mr. Justice Story declared that he had "not been able to detect a single instance, in which the maritime laws of any foreign country throw upon seamen disabled or taken sick in the service of the ship, without their own fault, the expenses of their cure." [11 Fed.Cas. 482.] Mr. Justice Story found these rights desirable not only on humanitarian grounds but also because they served "the great public policy of preserving this important class of citizens for the commercial service and maritime defence of the nation." In upholding the jurisdiction of a court of admiralty over this subject matter he stated that the right to maintenance and cure "constitutes in the contemplation of law a part of the contract for wages, and is a material ingredient in the compensation of the labor and services of the seaman."
"[The] vitality of a seaman's right to maintenance and cure has not diminished through the years." Mitchell v. Trawler Racer, Inc., supra, 80 S. Ct. at page 929.It has become established that the obligation of the shipowner attaches as a result of the relationship of employment without any regard for the form of the contract or the will of the contracting parties. Cortes v. Baltimore Insular Line, 1932, 287 U.S. 367, 372, 53 S. Ct. 173, 77 L. Ed. 368. The rights of the seaman are neither conditioned on fault on the part of the shipowner nor on the absence of fault on his part.*fn2 Farrell v. United States, 1949, 336 U.S. 511, 69 S. Ct. 707, 93 L. Ed. 850. Nor must the injury or illness be in any way causally connected with shipboard duties. Farrell v. United States, supra. The obligation to provide maintenance and cure has been expanded so far that two of the foremost admiralty scholars have concluded that "With the exception of borderline cases on misconduct * * * [the] remedy has become absolute." Gilmore and Black, The Law of Admiralty (1957) 261.
There are generally three separate items of recovery in an action for maintenance and cure. The first of these is maintenance, a living allowance sufficient to enable the seaman to maintain himself in a manner comparable to that which he received aboard ship.Calmar S. S. Corp v. Taylor, 1938, 303 U.S. 525, 527-528, 58 S. Ct. 651, 82 L. Ed. 993. Maintenance is related to out-of-pocket expenses and thus is not recoverable for periods during which the seaman receives free room and board at a Marine Hospital. Calmar S. S. Corp. v. Taylor, supra; The Bouker No. 2, 2 Cir., 1917, 241 F. 831, certiorari denied, 1917, 245 U.S. 647, 38 S. Ct. 9, 62 L. Ed. 529. However, union contracts often provide for a specific daily allowance for maintenance and courts may adopt such provisions without proof of actual expenditure. See Reardon v. California Tanker Co., 2 Cir., 1958, 260 F.2d 369, certiorari denied, 1959, 359 U.S. 926, 79 S. Ct. 609, 3 L. Ed. 2d 628; Yates v. Dann, D.C.D.Del. 1954, 124 F.Supp. 125, reversed on other grounds, 3 Cir., 1955, 223 F.2d 64.
The second item is cure, which relates to the expense of medical treatment. The duty to provide such treatment, however, extends only until the patient reaches the point of maximum recovery. Calmar S. S. Corp. v. Taylor, supra; Farrell v. United States, 1949, 336 U.S. 511, 69 S. Ct. 707, 93 L. Ed. 850.
The final item of recovery comprises wages until the "end of the voyage" the seaman was on when he was incapacitated. The Osceola, 1903, 189 U.S. 158, 23 S. Ct. 483, 47 L. Ed. 760; Harriman v. Midland S. S. Line, 2 Cir., 1953, 208 F.2d 564.*fn3 It is important to note that if an incapacitated seaman has been put on shore before the end of the voyage there will be a period when he is entitled to recover in a maintenance and cure action not only for room and board and medical expenses but also for wages.
It has long been settled that a seaman is not required to elect between a claim for maintenance and cure and a claim for negligence under the Jones Act. On the contrary, the Supreme Court has held the two rights are "consistent and cumulative." Pacific S. S. Co. v. Peterson, 1928, 278 U.S. 130, 49 S. Ct. 75, 77, 73 L. Ed. 220. In this same case the Court also stated that a claim for maintenance and cure was consistent with one for unseaworthiness. In approving the statement of Mr. Justice Gray in an earlier case, The A. Heaton, C.C.D.Mass.1890, 43 F. 592, 595, the Court declared, 278 U.S. at page 137, 49 S. Ct. at page 77:
"that the right of a seaman to receive his wages to the end of the voyage and to be cured at the ship's expense, being 'grounded solely upon the benefit which the ship derives from his service, and having no regard to the question whether his injury has been caused by the fault of others or by mere accident, does not extend to compensation or allowance for the effects of the injury; but it is in the nature of an additional privilege, and not of a substitute for or a restriction of other rights and remedies,' and 'does not, therefore, displace or affect the right of the seaman to recover against the master or owners for injuries by their unlawful or negligent acts.'"
However, as the Third Circuit has aptly stated, "it does not follow that a particular item of his claim, such as maintenance, if recovered in one suit, may again be recovered in another. For in the admiralty as elsewhere in the law a litigant may not recover compensation for a single claim more than once. The ancient rule in the admiralty that the vessel and her owner must provide an injured seaman with maintenance was intended to assure him three meals a day and a bed in which to sleep during his treatment and convalescence. There is no basis in logic or law for assuming that he may ask for six meals a day or twin beds, however." McCarthy v. American Eastern Corporation, 3 Cir., 1949, 175 F.2d 727, 729, certiorari denied, 1950, 338 U.S. 911, 70 S. Ct. 349, 94 L. Ed. ...