Shaw v. Ohio River Co.

• Decision Date: 04 November 1975
• Docket Number: No. 75--1301,75--1301
• Citation: 526 F.2d 193
• Parties: Helen SHAW v. OHIO RIVER COMPANY, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 193

526 F.2d 193

33 A.L.R.Fed. 521

Helen SHAW v. OHIO RIVER COMPANY, Appellant.

No. 75--1301.

United States Court of Appeals, Third Circuit.

Argued Sept. 10, 1975.

Decided Nov. 4, 1975.

Hymen Schlesinger, Pittsburgh, Pa., for appellee.

Anthony J. Polito, Rose, Schmidt and Dixon, Pittsburgh, Pa., for appellant; John H. Riordan, Pittsburgh, Pa., of counsel.

Before ALDISERT, GIBBONS and WEIS, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

The Ohio River Company, owner of towboats operating on the Ohio River, appeals from an order of the district court awarding judgment in favor of one of its seapersons, Helen Shaw, for maintenance and cure in the amount of $7,724.31. ¹ In her amended complaint Shaw sought maintenance and cure payments for three distinct periods of illness during 1971, 1972 and 1973. Her illness in 1973 first occurred while she was aboard the motor vessel 'Robert P. Tibolt' while employed as a maid and cook. The symptoms of her illnesses in 1971 and 1972, however, manifested themselves while she was on shore leave pursuant to the accumulated leave time policy contained in the collective bargaining agreement with her employer. The Ohio River Company concedes that it is liable for maintenance and cure payments for the 1973 illness but denies its liability for the 1971 and 1972 illnesses. Alternatively, it argues that even if it is liable for maintenance and cure, it is entitled to a credit or set-off for accumulated leave time wages and for non-contributory, non-occupational insurance and hospital benefits which had already been paid to Shaw.

Confronted by these two issues of first impression in this Circuit, we conclude that Shaw is not entitled to maintenance and cure payments for her 1971 and 1972 illnesses, and that the Ohio River Company is entitled to a set-off only for the hospitalization and medical treatment in connection with the 1973 illness which had been furnished at the expense of Blue Cross-Blue Shield.

I. THE 1971 AND 1972 ILLNESSES

In 1971 and 1972 Shaw was employed on the M/V Beckjord pursuant to a collective bargaining agreement which provided for regular crew changes and accumulated free time. On June 28, 1971 she left the motor vessel on a regular crew change with accumulated leave time to August 11, 1971. On July 12, 1971, however, she went to a physician for a routine physical examination during which a breast tumor was discovered. There had been no prior symptoms or complaints of this condition. She was subsequently admitted to a hospital for surgery and was also treated for other illnesses not caused by or manifested while in the service of the vessel. ² On December 9, 1971 she returned to duty. The district court awarded maintenance for 141 days in 1971, less twelve days during which Shaw was in a United States Public Health Service hospital, and cure in the amount of her hospital and medical bills.

On March 12, 1972 Shaw left the M/W Queen City on her regular crew change with accumulated leave time to April 23, 1972. On March 14, 1972 she first experienced a leg cramp for which she was later treated by United States Public Health Service Physicians. This malady disabled her until May 5, 1972 when she returned to duty. The district court awarded maintenance for 51 days. Since all her medical treatment for the 1972 illness had been provided free of charge by the United States Public Health Service, Shaw made no claim for reimbursement.

The undisputed testimony of Robert Langdon, defendant's personnel manager, establishes that when a regular crew change occurs and a seaman departs the vessel on accumulated leave time he is no longer answerable to the call of duty. He is entirely free during accumulated leave time to follow his own pursuits. ³ This testimony is consistent with the terms of the collective bargaining agreement (Def. Exhibit A). Moreover, there is no evidence from which a finding could be made that on July 12, 1971 or on March 14, 1972 Shaw was answerable to the call of duty. The district court, however, held to the contrary:

'The Court is satisfied that in each of the situations presented, plaintiff did sustain her various illnesses while subject to the call of service and thus would be entitled to maintenance and cure. . . . The fact that plaintiff was on shore leave at home at any time in question would not preclude entitlement to maintenance and cure.' Shaw v. The Ohio River Company, 388 F.Supp. 229 (W.D.Pa.1975).

If the quoted holding was intended as a finding of fact, then it is clearly erroneous, for the only evidence is unequivocally to the contrary. Shaw urges instead that the holding constituted a legal conclusion that a vessel's obligation to provide maintenance and cure to inland water commuter seamen continues during accumulated leave time whether or not the seaman is answerable to the call of duty and whether or not the illness was caused by his service. This conclusion finds no support in prior case law and is inconsistent with recent restrictions imposed upon the right of commuter seamen to the remedy of maintenance and cure.

The right of a seaman to the remedy of maintenance and cure when falling ill or injured 'while in the service of the ship' has been recognized by maritime nations since at least the Middle Ages. See 2 M. Norris, The Law of Seamen §§ 538--43, at 1--15 (3d ed. 1970). Recognition of the seaman's right to this remedy first appeared in American maritime law in Harden v. Gordon, 11 Fed.Cas. 480 (No. 6,047) (C.C.D.Me.1823). ⁴ The requirements for being considered in the ship's service, however, have undergone significant developments. In Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 529, 58 S.Ct. 651, 653, 82 L.Ed. 993 (1938), the Supreme Court while recognizing that in most prior cases 'the efficient cause of the injury or illness was some proven act of the seaman in the service of the ship', noted in dictum that there were others where 'it was deemed enough that he was incapacitated when subject to the call of duty . . ..' ⁵ The Court expressly adopted this nocausal relationship test in Aguilar v. Standard Oil Co., 318 U.S. 724, 733, 63 S.Ct. 930, 87 L.Ed. 1107 (1943), holding that a seaman injured while on authorized shore leave should be held to be 'in the service of the ship' even though the leave had been granted for 'exclusively personal' reasons which had 'no relation to the vessel's business.' Justice Rutledge explained the reasons for extending the principles governing shipboard injuries to cover seaman Aguilar's plight. 'To relieve the shipowner of his obligation in the case of injuries incurred on shore leave,' he argued:

'would cast upon the seaman hazards encountered only by reason of the voyage. The assumption is hardly sound that the normal uses and purposes of shore leave are 'exclusively personal' and have no relation to the vessel's business. Men cannot live for long cooped up aboard ship without substantial impairment of their efficiency, if not also serious danger to discipline. Relaxation beyond the confines of the ship is necessary if the work is to go on, more so that it may move smoothly. . . . In short, shore leave is an elemental necessity in the sailing of ships, a part of the business as old as the art, not merely a personal diversion.' Id. at 733--34, 63 S.Ct. at 935.

The meaning of 'in the service of the ship' was further refined in Farrell v United States, 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850 (1949), where a seaman was injured while returning to ship after overextending his shore leave. The Court reasoned that a seaman is deemed to be 'in the service of the ship' as long as he is 'generally answerable to its call of duty.' Id. at 516, 69 S.Ct. at 709. See Warren v. United States, 340 U.S. 523, 530, 71 S.Ct. 432, 95 L.Ed. 503 (1944).

These decisions, it should be noted, dealt with traditional 'blue water' seamen who endured the hazardous and unique life associated with extended voyages to foreign ports. Shaw's 1971--72 claims involve a qualitatively different factual setting. A leading treatise has recognized the problem now confronting this court:

'The Supreme Court's extension of the maintenance and cure remedy to shore leave injuries has led to some uncertainty in subsequent lower court decisions in cases which involve what have been called 'commuter seamen'--that is seamen who live at home and commute to work daily or who spend fixed periods on the vessel and on shore . . .. Whether they are also entitled to maintenance and cure for injuries suffered during their periods on shore is a question as to which a certain amount of judicial disagreement appears to be developing . . .. The Fifth Circuit seems to be in the course of working out a fairly complicated distinction based on whether the plaintiff was or was not 'answerable to the call of duty' at the time of his injury. . . .' G. Gilmore & C. Black, The Law of Admiralty § 6--8, at 292 (2d ed. 1975) (footnotes omitted).

The Fifth Circuit decision referred to is Sellers v. Dixilyn Corp., 433 F.2d 446 (5th Cir. 1970) (per curiam), cert. denied, 401 U.S. 980, 91 S.Ct. 1214, 28 L.Ed.2d 332 (1971), in which the court held that an injured seaman must prove (1) that he was on authorized shore leave and (2) that he was answerable to the call of duty in order to qualify for maintenance and cure. Seaman Sellers worked on an off-shore oil rig. Under his contract of employment he worked on a schedule providing for a sequence of seven-day tours of duty followed by seven-day periods of authorized leave. While off-duty Sellers was permitted to spend his time as he pleased, including engaging in other employment. And while off-duty there was no obligation to return to work even if he were called for an emergency. This decision was considered to be purely discretionary on the seaman's part. The Fifth Circuit found Sellers to be neither on authorized shore leave nor answerable to the call of duty and, therefore, denied...