Brinkman v. Oil Transfer Corp.

• Citation: 300 N.Y. 48,88 N.E.2d 817
• Parties: BRINKMAN v. OIL TRANSFER CORPORATION.
• Decision Date: 23 November 1949
• Court: New York Court of Appeals Court of Appeals

300 N.Y. 48

88 N.E.2d 817

BRINKMAN

v.OIL TRANSFER CORPORATION.

Court of Appeals of New York.

Nov. 23, 1949.

Wallace L. Brinkman, an infant, by Isabel Brinkman, his guardian ad litem, sued the Oil Transfer Corporation to recover for maintenance and cure.

The Appellate Division of the Supreme Court, in the First Judicial Department, entered a judgment February 11, 1949, 274 App.Div. 985, 84 N.Y.S.2d 457, which affirmed, by a divided court, a judgment of the Supreme Court in favor of plaintiff entered in New York County upon a decision of the court at trial term, Benvenga, J., 185 Misc. 257, 56 N.Y.S.2d 773, a jury having been waived, and defendant appealed.

The Court of Appeals, Desmond, J., affirmed the judgment, and held that plaintiff, a minor mariner, was entitled to recover for maintenance and cure from the owner of a tug, although expenses for hospitalization and convalescence had been incurred and paid for by his parents. C. B. M. O'Kelley and Hervey C. Allen. Jr., New York City, for appellant.

Edward J. Keane, New York City, for respondent.

DESMOND, Judge.

Plaintiff, then sixteen years old, was, while employed as a seaman on defendant's tug and tow proceeding through the New York Barge Canal, so seriously injured that his leg had to be amputated a few hours after the accident. The young man's father was master of the tug at the time, and his father and mother arranged for urgently required surgical and hospital care. Plaintiff was confined in a hospital for about a month, then convalesced at his parents' home for more than two years. This suit was brought by the infant mariner, through his mother as guardian as litem, to enforce defendant's obligation to pay for his maintenance and cure. Judgment was granted to plaintiff for about $2,700, made up as follows: about $1,200 for expenses paid or incurred by plaintiff's parents for hospital, physicians' and nurses' bill and an artificial leg and $1,500 for the reasonable value of plaintiff's board and lodging at his family home. At the Appellate Division defendant argued, although no such point seems to have been made at the trial, that, although plaintiff's accident was, admittedly, in the service of the ship, he had not right to any award of maintenance and cure since he himself had neither incurred any expense nor obligated himself to reimburse those who had paid the costs. The Appellate Division majority held that ‘the circumstance that the parent paid for some of the items of maintenance and cure, without express agreement providing for reimbursement by a minor son, ought not to relieve the defendant from the obligation to pay therefor.’ 274 App.Div. 985, 84 N.Y.S.2d 457. Two dissenting Justices, citing Johnson v. United States, 333 U.S. 46, 50, 68 S.Ct. 391, 92 L.Ed. 468, and other cases, thought that the maritime law forbade any such recovery when the seaman had neither paid anything nor obligated himself to pay anything, for his treatment and care. We think the award to plaintiff was proper, under applicable rules of maritime law.

It has often been said, in one form of words or another, that a seaman who is hurt or falls sick on a voyage, may recover from the shipowner, for ‘maintenance and cure’, only such amounts as the seaman has spent or for which he has obligated himself. Calmar S. S. Corp. v. Taylor, 303 U.S. 525, 531, 58 S.Ct. 651, 82 L.Ed. 993;Johnson v. United States, supra;Sonnesen v. Panama Transport Co., 298 N.Y. 262, 267, 82 N.E.2d 569, 570. But, relating that rule to the facts of the cases in which it has been announced, we find that it has never been applied so as to excuse a shipowner from liability for moneys actually spent in an emergency by relatives or other interested persons, on behalf of an injured man. When the cases say that the owner is liable for the seaman's expenditures for his own cure only, they are merely expressing the anciently settled holding that an owner, sued for maintenance and cure, is liable not as in tort, for indemnity or completely compensatory damages, but only for the actual expense of the medicines, physicians' and nurses' services and food and lodging needed by the sick or injured crewman. Reed v. Canfield, 1 Sumn. 195, 20 Fed.Cas. 426, No. 11,641. For the obligation to ‘maintain and cure’ is a contractual one, absolute but covering specific items of expenditure only. The seaman's physical needs are the measure of the ship's liability. In the oldest American case: Harden v. Gordon, 1823, 2 Mason, 541, 543, 11 Fed.Cas. 480, No. 6,047, Justice Story pointed out that it was the sailor's right ‘to be healed at the expense of the ship’, and added that his claim for such expenses ‘constitutes, in contemplation of law, a part of the contract for wages'. The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760, a classic decision in American maritime law, put the rule in this form: ‘That the vessel and her owners are liable, in case a seaman falls sick, or is wounded, in the service of the ship, to the extent of his maintenance and cure, and to his wages, at least so long as the voyage is continued.’ The point left open by the last clause in that quotation from The Osccola, supra, was settled in The W. L. White, D.C., 25 F. 503, which, in a holding now unquestioned, see Calmar S. S. Corp. v. Taylor, supra, 303 U.S. at page 529, 58 S.Ct. 651, 82 L.Ed. 993, declared that the expenses recoverable were for a reasonable time after the voyage, also. Applying those concepts to modern mariners like this plaintiff who undertake no long sailing voyages, but work on harbor or inland craft, the Second Circuit, in the well-known The Bouker No. 2, 241 F. 831, 835, realizing that such vessels do not ordinarily ‘maintain’ or ‘cure’ their sick or disabled on board, but send them to hospitals or to their homes, allowed recovery for lodging in the seaman's own home, plus medical and other similar expense. The Bouker No. 2, supra, took note of a fact, discussed in many later cases, that the United States Government was, in various ports, providing free service to seamen in marine hospitals. The court in the Bouker case made it plain that a seaman cannot ‘deliberately refuse’ to go to such a marine hospital and instead charge the owner with expensive accommodations elsewhere, but it made it equally clear that where, as in our present case, the owner does not suggest removal to a marine hospital and the seaman in...