George v. CHESAPEAKE & OHIO RAILWAY COMPANY

• Decision Date: 20 September 1972
• Docket Number: Civ. A. No. 77-70.
• Citation: 348 F. Supp. 283
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Luther Earl GEORGE, Plaintiff, v. The CHESAPEAKE & OHIO RAILWAY COMPANY, Defendant.

348 F. Supp. 283

Luther Earl GEORGE, Plaintiff, v. The CHESAPEAKE & OHIO RAILWAY COMPANY, Defendant.

Civ. A. No. 77-70.

United States District Court, E. D. Virginia, Newport News Division.

September 20, 1972.

Henry E. Howell, Jr., Norfolk, Va., for plaintiff.

Robert M. Hughes, III, Norfolk, Va., for defendant.

WALTER E. HOFFMAN, Chief Judge.

Plaintiff, Luther Earl George, seeks payment from his employer, The Chesapeake and Ohio Railway Company (C & O), for maintenance and cure alleged to be due as a result of an operation which was performed upon the plaintiff at a private hospital. He is also seeking damages by way of attorney's fees for failure to pay maintenance and cure. Recovery is sought solely under the principles of general maritime law.

George has been a marine employee of C & O for 48 years and has achieved the status of a tugboat pilot. Since the tugboats are utilized seven days a week and 24 hours a day, George works a 12-hour shift and is off 24 hours; then 12 hours on and 48 hours off; all of which is the equivalent of a 40-hour workweek. His time off is his own and any recall for extra duty during this time is purely optional on his part. He is paid by the hour with no meals and lodging being provided by the company.

For the past 15 years George has been afflicted with recurrent sores in his mouth and gums. He has treated himself for this condition with warm salt water rinses, such treatments being taken both on board the tugs and at home. In June 1967 while serving as pilot on the Tug A. T. LOWMASTER, a sore developed which did not respond to the accustomed treatment. His condition became so aggravated that George went to see Dr. Kupcuoglu, a private ear, nose and throat specialist, who took a biopsy of the lesion.

Upon learning of the ulcer's cancerous nature, George reported to the C & O boatmaster as required by company regulations. The boatmaster sent plaintiff to a local company doctor who, in turn, referred him to the C & O Railway Employee's Hospital Association's hospital at Clifton Forge, Virginia, where he was seen by Dr. Charles. George was given the same diagnosis and advised of alternative remedies—radical surgery or conservative treatment by way of x-ray therapy. Dr. Charles, who represented himself as having been a doctor on a transoceanic passenger liner, told the plaintiff he would perform the surgery, if such course was undertaken.

Due to the very serious nature of the operation which in effect amounted to the removal of one-third of the face, as explained by Dr. Charles to his wife, George elected to undergo the x-ray treatment. While evidence subsequent to the eventual operation revealed that the C & O hospital had a plastic surgeon¹ from Roanoke, Virginia, as a consultant, and indeed Dr. Charles himself might very well have been qualified to perform the operation, none of this information or special qualifications was relayed to the plaintiff at the time of his decision.

The hospital at Clifton Forge was without the proper facilities to administer radiation therapy, so George returned to his home in Newport News, Virginia. The boatmaster did not send George to the Marine Hospital in Norfolk² for free treatment but arranged for a series of cobalt treatments at a private hospital, which were paid for without question by the C & O.

Upon his return to Newport News on July 3, 1967, George sought the advice of Dr. Thompson, his family physician. Realizing the gravity of the situation, Dr. Thompson sent the plaintiff to Dr. Charles Horton, a highly qualified plastic surgeon in Norfolk. It was Dr. Horton's considered opinion that such an operation should be performed only by a qualified plastic surgeon due to the extensiveness, the anatomical location, and the pathological grade of the disease; and he was quite emphatic about not having such an operation performed at the Clifton Forge hospital.

Since Dr. Horton believed the x-ray treatments advisable prior to any operation, George pursued that course of action. As a result of such treatments, there was an apparent remission of the disease for six months. Early in February 1968, George noticed a lump in his neck and returned directly to Dr. Horton, without notifying the company boatmaster. The plaintiff was told that, unless he was operated upon immediately, he could not expect to live longer than two months. There was much discussion at that time by George and Dr. Horton as to where the operation should be performed, with some mention of the United States Marine Hospital in Norfolk. Although these operations had been performed at the Marine Hospital, and in all probability Dr. Horton would be the operating surgeon, Norfolk General was designated as the hospital of choice since this was the only location at which the post-operative period of intensive care with constant supervision was available, as required by these critical cases.

The operation was in fact performed at Norfolk General, a private hospital, and George was placed in the intensive care unit for the following five days, being seen at least three times each day by one of several doctors. After a substantial recuperative period George returned and is currently employed by C & O as a tug pilot.

It is important to note that at no time did the C & O boatmaster suggest that George go to the Marine Hospital; nor did the plaintiff request to be sent there. While it is true that George had the authority to issue "hospital tickets" to members of his crew allowing them to enter the Public Health facilities in Norfolk, only the boatmaster could do the same for him as a pilot.

The issues, stated broadly, are simply: Whether George is a seaman who is due maintenance and cure for this malady; and, if so, whether his conduct amounted to such willful misconduct as to forfeit his rights. Finally, whether C & O's conduct was such as to warrant an award of damages by way of attorney's fees.

Maintenance and cure are ancient maritime remedies which were founded upon humanitarian considerations of the unique perils of the traditional "blue water sailors." See Farrell v. United States, 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850 (1949); Harden v. Gordon, Fed.Cas. 6047 (C.C.Me., 1823). They were developed to ensure the welfare of these individuals being injured or falling ill far from home. However, courts have refused to deny recovery to a seaman "merely because his voyages are short, because he sleeps ashore, or for other reasons his lot is more pleasant than that of most of his brethren." Weiss v. Central Railroad Company of New Jersey, 235 F.2d 309, 313 (2 Cir., 1956). See, e. g., Hudspeth v. Atlantic & Gulf Stevedores, Inc., 266 F.Supp. 937 (E.D.La., 1967). Thus, the mere fact that George was a "seaman" for only 12 hours at a time is not fatal to his claim for maintenance and cure.

Since there is no distinction among types of seamen, the plaintiff in this case must bear the ordinary burden of proof before there can be any recovery. He must allege and prove facts bringing himself within scope of the remedy. Prendis v. Central Gulf Steamship Company, 330 F.2d 893 (4 Cir., 1963). The essential factors of a maintenance and cure case are that he was a seaman and secondly, that his illness occurred, was aggravated, or manifested itself while in the ship's service. No question has been presented as to George's status as a seaman in the general sense. The controversy lies in the interpretation to be placed on the second requirement.

The phrase "in the service of the ship" has become one of art in this field. Since maintenance and cure has been characterized as an implied contractual obligation, Aguilar v. Standard Oil Co., 318 U.S. 724, 730, 63 S.Ct. 930, 87 L.Ed. 1107 (1943), it is obvious that a seaman is thusly engaged while he is performing his assigned tasks on board ship. It is clear, however, that the illness or injury need not arise out of the seaman's employment, nor need it rest on the culpability of the employer. Calmar Steamship Corp. v. Taylor, 303 U.S. 525, 527, 58 S.Ct. 651, 82 L.Ed. 993 (1938). Therefore the Supreme Court, in keeping with the benevolent nature of the remedy, has liberally construed the phrase so as to encompass a seaman who is ashore on authorized leave tending to purely personal business. Aguilar v. Standard Oil Co., supra. Additionally, a seaman is deemed to remain "in the service of the ship" as long as he is generally answerable to the call of duty. Farrell v. United States, supra at 516, 69 S.Ct. at 709.

Due to the nature of his employment, George no longer remains in the ship's service when he leaves his vessel at the completion of his shift. It would be a contravention of the basic principles underlying the shore leave cases to hold that he was on authorized shore leave every night upon returning home. The philosophy behind extending maintenance and cure to apparently personal adventures stems from the restrictive life led by seamen on lengthy voyages. Such a seaman is in a sense serving the ship while ashore since the time off makes him a more efficient crew member; not to mention the fact that no one would become a sailor if he were denied shore leave. Aguilar v. Standard Oil Co., supra. In the present case, the purpose for leaving every night is merely to allow the plaintiff to live a normal home life, and therefore cannot be said to serve the ship to such an extent as to justify his absence on shore leave. Sellers v. Dixilyn Corporation, 433 F.2d 446 (5 Cir., 1970), cert. denied, 401 U.S. 980, 91 S.Ct. 1214, 28 L.Ed.2d 332 (1971). Likewise the plaintiff was not answerable to the call of duty during his off hours. While there is some indication of the willingness of George to return if called, this is immaterial. In order to raise the obligation of maintenance and cure on the part of an employer, there must be a corresponding obligation by seamen to return if called. It is because the seaman remains bound to the vessel that the...