Rofer v. Head & Head, Inc., 15529.
| Decision Date | 14 December 1955 |
| Docket Number | No. 15529.,15529. |
| Citation | 226 F.2d 927 |
| Parties | Karl ROFER, Appellant, v. HEAD & HEAD, Inc., Claimant owner of Yacht VAGABONDIA, III, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Arthur Roth, Miami, Fla., for appellant.
Richard H. Hunt, Miami, Fla., for appellee.
Before RIVES, TUTTLE and JONES, Circuit Judges.
This is a seaman's libel for wages and maintenance and cure. The libelant was hired in November, 1953, to work as a cook aboard the yacht Vagabondia III. He was apparently in normal health when employed, but as the period of employment wore on, he became excitable and often upset, and once reached a state of frenzy. Before he left the vessel, the deckhands were afraid of him, saying that he had threatened them.
On the first or second of March, 1954, he complained to the captain that he had sprained his back in picking up an eighty-pound stove plate. The captain asked him if he wanted a certificate to the Public Health Service Clinic in Miami. The libelant refused, saying that he would prefer to go to his own doctor, a chiropractor who had treated him before. He did undergo such treatments on March 16, 17 and 18. He never had any other treatments for this condition, and the trial court found that he did not complain of its bothering him until the bringing of this libel.
About March 23, he complained of a cold. The captain asked him whether he wanted treatment available aboard or would prefer to go to a doctor, and informed him that the vessel would pull into Key West on the next day. The libelant said he would wait until then. When the vessel stopped there, he went ashore and bought a bottle of cough medicine. Then he returned to the yacht, and later on the 26th said he felt "fine." The next day he complained and said that he could not go on, and demanded that he be put ashore immediately. The captain gave him a letter of discharge and a certificate for treatment by the U. S. Public Health Service Clinic in Miami. He was taken to shore and to a bus stop, and when asked if he had enough money, said he had plenty. He told the captain to get a replacement for him.
He hitched a ride to the nearest town, where he consulted a doctor. He had a slight fever, and while undergoing treatment, took a room in a nearby motel. On March 31, he was told that he was well enough to travel. His main complaint at the time was about his back, and the doctor felt that the libelant's own physician could best treat this, although he would not say, either, that the cold had been completely cured.
Libelant delayed going until Friday, April 2, when he took a bus, arriving in Miami that afternoon. On the following Monday, he visited his own doctor, and on Tuesday, he went to the Public Health Service Clinic. The examination at the clinic disclosed that libelant was suffering from viral myositis, post-influenza condition, and a paranoid tendency. He was put on out-patient care. His own physician found that he had the residue of a virus infection in his lungs, and a back pain.
He remained under the treatment of three doctors, each of whom did not know that he was being treated by the others, until June 26, 1954, when he was transferred to the Public Health Service hospital in Savannah. He was discharged from there on September 2, 1954. The psychiatrist there reported that there was no evidence of any psychosis, but that there were "areas of emotional immaturity" and that his "defense mechanism" — the gastro-intestinal condition, the main and perhaps only ailment treated in Miami and Savannah — was "rather unhealthy"; he concluded that the libelant was not fit for sea duty and should "be returned to Miami and receive psychiatric care at his own expense." The libelant returned to Miami, but did not seek or receive any such treatment.
Wages. The district court allowed the libelant no wages, "as his discharge was occasioned by his own action." His wages up to the date of discharge were paid by the vessel's owners.
The libelant contends that he is entitled to his wages for the remainder of the voyage, on the strength of Farrell v. United States, 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850, and The Osceola, 189 U. S. 158, 23 S.Ct. 483, 47 L.Ed. 760. The Osceola answered two questions certified to the Court by the Seventh Circuit. The main issue was whether a seaman's right to maintenance and cure, and to wages, is subject to the fellow-servant defense. No question was raised as to the length of the employment contract of the seamen aboard this lake vessel, and the Court answered that the vessel and her owners were liable for wages "at least so long as the voyage is continued." Farrell v. United States presented the converse of the instant case. There, in 1943, Farrell signed aboard under ship's articles which were drawn in vague terms for security reasons. The articles provided that the ship would go to such ports as directed by the United States government, "and back to a final port of discharge in the United States, for a term not exceeding 12 (Twelve) calendar months." Farrell was totally disabled while the ship was moored in Palermo, Sicily, and claimed wages for the remainder of the twelve-month period. The owners argued that he should be paid only until the time when the ship returned to a port of discharge in the United States.
In a divided opinion the court agreed with the owners. It said that the contract obligated the seaman to serve only until the port of discharge was reached, or twelve months had passed, whichever occurred sooner. It added that, except in the coastwise trade, the general custom is to sign on for a voyage and not for a fixed term. The dissenting opinion said that if this were a coastwise voyage, Farrell could unquestionably recover for the balance of the twelve months and that the seaman had actually bound himself for that period, the number of voyages being immaterial.
The Farrell case most directly answers the question regarding wages presented here. Rofer did not sign any articles on coming aboard, and was paid on a month-to-month basis. This being a coastwise voyage, the assumption would be that he was obligated to serve for a fixed period. The fixed period here could have been no longer than a month, and an ill seaman would then be entitled to wages for this length of time only.
The district judge found that the libelant's discharge was occasioned by his own actions. The evidence plainly shows that he was not fired, however. The captain, when Rofer demanded to be put ashore, asked him if he would not continue, and promised him a chance to rest for a day or two, and extra help in the galley. Rofer adamantly demanded that he be put...
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