Bosarge v. Triple T. Boats, Inc., Civ. A. No. 74-390-T.
| Decision Date | 24 November 1975 |
| Docket Number | Civ. A. No. 74-390-T. |
| Citation | 403 F. Supp. 1260 |
| Parties | Levi BOSARGE, Sr., in his own behalf, and in behalf of his minor son, Levi Bosarge, Jr., Plaintiffs, v. TRIPLE T. BOATS, INC., Defendant. |
| Court | U.S. District Court — Southern District of Alabama |
E. Elliott Barker, Mobile, Ala., for plaintiffs.
A. Clay Rankin, III, J. Hodge Alves, III, Mobile, Ala., for defendant.
This cause came on to be heard on October 17, 1975, on the motion of the plaintiffs for partial summary judgment for maintenance and cure against the defendant, Triple T. Boats, Inc., pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Court having considered all the pleadings on file, the affidavits of the plaintiffs, Levi Bosarge, Sr., and Levi Bosarge, Jr., and having heard the arguments of counsel finds that there is no genuine issue as to any material fact. However, for the reasons set forth hereinafter, the Court is of the opinion that the plaintiffs are not entitled to a judgment for maintenance and cure as a matter of law, and therefore the motion for partial summary judgment is hereby denied.
This is a seaman's action for damages under the Jones Act, 46 U.S.C. § 688, and under the general maritime law. The complaint's third cause of action seeks maintenance at the rate of $8.00 per day for the period beginning March 1, 1974, and continuing until the minor plaintiff has recovered or until maximum care has been achieved. In its answer the defendant admits that the plaintiff, Levi Bosarge, Jr., a minor, was a seaman employed by the defendant on board the F/V TARA RENITA and that while aboard the vessel the minor plaintiff sustained injuries when he was struck by a piece of chain. As a result of the injuries received on board the vessel, the plaintiff was hospitalized at the Ochsner Hospital in New Orleans, Louisiana, and then transferred and hospitalized in the Mobile General Hospital. Subsequently, on March 15, 1974, plaintiff was transferred to the home of his parents in Bayou La Batre, Alabama.
On June 5, 1975, the plaintiff filed two affidavits in open court. The affidavit of the plaintiff, Levi Bosarge, Sr., states that his son promised after his injury that he would make payments to his parents, from whatever money he should receive, for maintaining the injured plaintiff.1 The affiant also expressed his expectation of payment by their son for the support that the minor received from his parents. The second affidavit submitted by the minor plaintiff states that the minor promised to reimburse his parents for their support while he was unable to work.2
On the basis of the foregoing facts, the Court makes the following Conclusions of Law:
1. The Court has jurisdiction over this matter based upon its admiralty and maritime jurisdiction. 28 U.S.C. § 1333.
2. The minor plaintiff herein seeks maintenance and cure for injuries which he sustained as a seaman in the service of the defendant's vessel.
3. Without a lengthy discussion of the historical purpose of maintenance and cure and of the duty of the shipowner to provide for the seaman's needs, suffice it to state that as a general rule, a seaman cannot recover maintenance and cure during a period in which the seaman has incurred no expense or liability for his care and support. Johnson v. United States, 333 U.S. 46, 68 S. Ct. 391, 92 L.Ed. 468 (1948); Marine Drilling, Inc. v. Landry, 302 F.2d 127, 128 (5th Cir. 1962); Martinez v. Star Fish and Oyster Co., 386 F.Supp. 560, 563 (S.D.Ala.1974). This fundamental rule supports the denial of maintenance and cure to a minor seaman who lives at home with his parents and incurs no actual expense or liability for his care and support. Johnson v. United States, supra; Field v. Waterman S. S. Corp., 104 F.2d 849, 851 (5th Cir. 1939). A contrary view asserted by the plaintiffs holds that a seaman may recover maintenance for support furnished by a seaman's parents or relatives even though the seaman has not incurred out-of-pocket expenses. McCormick Shipping Corp. v. Duvalier, 311 F.2d 933 (5th Cir. 1963); Duplantis v. Williams-McWilliams Industries, Inc., 298 F.Supp. 13 (E.D.La.1969); Brinkman v. Oil Transfer Corp., 300 N.Y. 48, 88 N.E.2d 817 (1949). The Court is of the opinion that the prevailing view is that a seaman who has not paid for his own expenses, whether that seaman be a minor residing at the home of his parents or otherwise cannot recover maintenance from the shipowner. Marine Drilling, Inc. v. Landry, 302 F.2d 127, 128 (5th Cir. 1962); Field v. Waterman S. S. Corp., supra. Therefore, in order for the minor seaman to recover for maintenance and cure he must show proof of expenses incurred or obligations created during the period that he resides with his parents. Johnson v. United States, supra; Dodd v. The M/V Peggy G, 149 F.Supp. 823, 824 (S.D.Ala.1957); 2 Norris, The Law of Seaman § 573. In the instant case, there is no written evidence which documents that the minor plaintiff has incurred out-of-pocket expenses or made payments to his parents.3 Accordingly, the Court finds that there is insufficient evidence to support the finding that the minor plaintiff has incurred any expense or liability for his care and support.
4. In support of said motion the plaintiffs have submitted affidavits wherein the minor plaintiff has "expressed his intention" to make payments to his parents from whatever money he should receive and there is an "expectation" on the part of the seaman's parents to be reimbursed. (See Pl. Ex. 1, 2.) The plaintiffs assert that these affidavits satisfy the requirements set out in Duplantis v. Williams-McWilliams, 298 F.Supp. 13, 16-17 (E.D.La.1969) wherein the court stated:
The plaintiffs primarily rely on McCormick Shipping Corp. v. Duvalier, supra, for the...
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