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April 23, 1980

STEWART V. DIXON, Plaintiff, against MARITIME OVERSEAS CORP., Defendant.

The opinion of the court was delivered by: COOPER

Plaintiff brought suit against defendant for injuries to his knee sustained on August 3, 1978 aboard defendant's ship while employed as an able-bodied seaman. On January 18, 1980 the jury rendered a verdict in favor of the plaintiff: $ 108,000 in damages for injuries to plaintiff on his claim of unseaworthiness; $ 29,776 for maintenance and cure. Defendant Maritime Overseas Corporation now moves for relief in two respects: (1) a new trial, pursuant to Fed.R.Civ.P. 59, on the unseaworthiness cause of action and (2) for judgment notwithstanding the verdict, pursuant to Rule 50 of the Fed.R.Civ.P., or for a new trial or remittitur with respect to maintenance and cure.

Maintenance and Cure

In light of the two different causes of action dealt with here, it might be well to keep in mind the true purpose of maintenance and cure. "Maintenance and cure is a contractual form of compensation given by general maritime law to a seaman who falls ill while in the service of his vessel." Evans v. Blidberg Rothchild Co., 382 F.2d 637, 639 (4th Cir. 1967). It must be remembered that maintenance and cure is not a panacea; its objectives are limited. Farrell v. U. S., 336 U.S. 511, 519, 69 S. Ct. 707, 711, 93 L. Ed. 850 (1949) puts it plainly:

Maintenance and cure is not the only recourse of the injured seaman. In an appropriate case he may obtain indemnity or compensation for injury due to negligence or unseaworthiness and may recover, by trial before court and jury, damages for partial or total disability. But maintenance and cure is more certain if more limited in its benefits. It does not hold a ship to permanent liability for a pension, neither does it give a lump-sum payment to offset disability based on some conception of expectancy of life. (emphasis added)

 The obligation to provide maintenance and cure ends at "the point where the maximum possible cure has been attained." M. Norris, The Law of Seamen § 562 (3d ed. 1970) (hereinafter cited as Norris); G. Gilmore & C. Black, The Law of Admiralty § 6-10 (2d ed. 1975); Oliveras v. United States Lines Co., 318 F.2d 890, 893 (2d Cir. 1963); Brahms v. Moore-McCormack Lines, 133 F. Supp. 283, 285 (S.D.N.Y.1955); See also Berke v. Lehigh Marine Disposal Corp., 435 F.2d 1073, 1076 n.3 (2d Cir. 1970); Vandinter v. American Steamship Co., 387 F. Supp. 989, 990 (W.D.N.Y.1975); Norris § 563.

 Although awards for accrued maintenance and cure have been approved for periods as long as seven years (see Koslusky v. United States, 208 F.2d 957 (2d Cir. 1953)), a grant of prospective maintenance is only allowed for short periods of time which are definitely capable of ascertainment. The grant of a lump sum for an indefinite period is invalid. Calmar S. S. Corp. v. Taylor, 303 U.S. 525, 58 S. Ct. 651, 82 L. Ed. 993 (1938); Campbell v. American Foreign S. S. Corp., 116 F.2d 926, 929 (2d Cir. 1941); Keiser v. American President Lines, Ltd., 384 F. Supp. 554, 555 (S.D.N.Y.1974); Norris § 567.

 Plaintiff was injured on August 3, 1978; he was declared fit for duty and recommenced work on October 9, 1978. No claim was made for maintenance and cure for this period because plaintiff had been paid. Plaintiff only claimed maintenance and cure from the time he was reinjured in his subsequent employment aboard the S. S. Virgo, on January 20, 1979, until April 2, 1979, when he was declared fit for duty.

 The jury was charged that maintenance and cure runs only until the time when a "maximum cure" is reached, and this term was defined. It was explained that "This does not mean a complete cure has been effected. It means only that the plaintiff can recuperate no further from his injuries . . . ." Charge of Court, Transcript of Jan. 14, 1980, p. 25 (hereinafter cited as Charge). The jury was also charged that it "may find that it (maximum cure) has not yet been reached." (Charge at 26.) The jury was then instructed that in calculating the amount of the maintenance and cure:

Despite inflation or other factors, the union contract establishes the rate for payment of maintenance and cure at $ 8.00 a day. That is binding on the plaintiff. Thus, you may multiply this figure by the number of days that the plaintiff was due his maintenance and cure under the guidelines I have already given you.


 Defendant contends that the maximum maintenance and cure that can be awarded is $ 8.00 a day for a period of 72 days (January 20, 1979-April 2, 1979), or $ 576.00. Plaintiff agrees that he can only recover maintenance and cure for a period of "some 72 days." However, he argues that this number of days should be multiplied by $ 25.00. Therefore, plaintiff argues that "we are of the opinion that any remittitur should reduce the verdict on the maintenance award to no less than $ 1800," but he adds that this would be "together with appropriate interest, and reserving all rights as to damages because of defendant's willful failure to pay maintenance and cure." Answering Affidavit of Max Cohen, Esq., filed Feb. 8, 1980, at P 4.

 The jury was charged to grant $ 8 per day until the point of maximum cure, which we believe was correctly defined.

 We denied plaintiff's routine demand for counsel fees for the simple reason that the total trial record was completely barren of any evidence reflecting that the shipowner had been "callous in (its) attitude," "(recalcitrant)," or "willful and persistent" in failing to pay maintenance and cure, proof required for the granting of such relief. Vaughan v. Atkinson, 369 U.S. 527, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962); Roberts v. S.S. Argentina, 359 F.2d 430 (2d Cir. 1966).

 The granting of costs and interest also requires that circumstances had existed in which the defendant had been "callous and reckless in failing to recognize its continuing obligations to plaintiff, and that its action in cutting off payment of . . . maintenance to plaintiff stemmed from a "wanton and intentional' disregard of his rights as a seaman." Catrakis v. Nautilus Petroleum Carriers Corp., 427 F. Supp. 255, 260 (S.D.N.Y.1977); Vandinter v. American Steamship Co., 387 F. Supp. 989, 990-91 (W.D.N.Y.1975).

 We hold that the jury award of $ 29,776 for maintenance and cure was grossly excessive. As a matter of law, we are compelled to reduce it to $ 576 ($ 8. for each of the 72 days claimed). The jury's verdict on this claim demonstrates, to this Court, the jury's conviction that plaintiff's claim as to the extent of his injuries, their permanency, his pain and suffering, etc. had merit; this conviction accounts for and is reflected in the verdict on the unseaworthiness claim.

 Under Fed.R.Civ.P. 50, the standard for granting a motion for judgment notwithstanding the verdict is the same as that for directing a verdict at the close of evidence. 9 Wright & Miller, Federal Practice and Procedure: Civil §§ 2534, 2537. Formulation of the standard by our Second Circuit is found in Simblest v. Maynard, 427 F.2d 1 (2d Cir. 1970): "Simply stated, it is whether the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable men could have reached." Id. at 4.

 Whereas the verdict is excessive, it does not warrant being set aside, rather, the verdict must be reduced.

 Maintenance and cure: remittitur is the remedy

 The trial court is empowered to grant a new trial on all issues or on a particular issue to prevent a "miscarriage of justice" resulting from a jury verdict. Since the court has sole discretion over the granting of such a motion, it is a remedy which is not lightly employed. 11 Wright & Miller, Federal Practice and Procedure: Civil § 2803. A jury verdict is not to be disregarded unless a prejudicial error occurs causing "substantial harm" to the losing party. Id; Fed.R.Civ.P. 61. The drastic remedy of a new trial is not necessary in an instance such as this where the excess of the award can be segregated from the valid portion.

 When clearly excessive damages are awarded, the Court will use the procedural device of remittitur to reduce the damages awarded. The denial of the defendant's motion for a new trial is conditioned upon remission of the excess amount by the plaintiff. Comiskey v. Pennsylvania R.R. Co., 228 F.2d 687, 688 (2d Cir. 1956). Wright & Miller describe the procedure this way: "There is . . . a practice, now sanctioned by long usage, by which the court may condition a denial of the motion for a new trial upon the filing by the plaintiff of a remittitur in a stated amount." 11 Wright & Miller, Federal Practice & Procedure: Civil § 2815. A case, such as this, in which certain identifiable sums included in the verdict should not have been awarded to plaintiff clearly warrants the remedy of remittitur. The filing of a remittitur by the plaintiff should be in the amount of the excess verdict. 11 Wright & Miller: Civil § 2815. Clearly to be avoided is the delay and expense of a new trial.

 Plaintiff would have us adopt the position that the per day allowance in this Circuit should be $ 25.00 rather than the standard $ 8.00. We rejected this position at trial. The growing burden of inflation, the high cost of living and the diminished value of money are factors about which we are not unsympathetic, however, our Circuit Court has fixed the daily rate for maintenance and cure at $ 8.00 and we feel so bound.

 Since we find it abundantly clear that the maximum period of maintenance and cure herein is 72 days at the prevailing rate of $ 8.00 a day, plaintiff is directed to file a remittitur in the sum of $ 29,200; ...

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