Burkert v. Weyerhaeuser Steamship Company, 19706.

• Decision Date: 16 August 1965
• Docket Number: No. 19706.,19706.
• Citation: 350 F.2d 826
• Parties: Martin BURKERT, Appellant, v. WEYERHAEUSER STEAMSHIP COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

350 F.2d 826 (1965)

Martin BURKERT, Appellant, v. WEYERHAEUSER STEAMSHIP COMPANY, a corporation, Appellee.

No. 19706.

United States Court of Appeals Ninth Circuit.

August 16, 1965.

Lawrence Drasin, Daniel Fogel, Bodle & Fogel, Los Angeles, Cal., for appellant.

L. Robert Wood, Thomas H. Werdel, Jr., Lillick, Geary, McHose & Roethke, Los Angeles, Cal., for appellee.

Before HAMLEY, HAMLIN and BROWNING, Circuit Judges.

HAMLIN, Circuit Judge.

Martin Burkert, appellant herein, instituted the present action by filing a complaint in the United States District Court for the Southern District of California, Central Division, on February 19, 1963, wherein appellant sought maintenance and cure, wages to the end of the voyage, damages and attorney's fees. The district court's jurisdiction was invoked pursuant to 28 U.S.C. § 1333. Trial was held before the court, and, in an opinion filed June 11, 1964, the court held that the appellant was not entitled to recover in his action.¹ After making Findings of Fact and Conclusions of Law, the court entered a final decree ordering the libel dismissed on July 8, 1964. From this decree appellant appeals, invoking the jurisdiction of this court pursuant to 28 U.S.C. § 2107.

Because of our disposition of this appeal, only a limited statement of the facts is required. Appellant commenced his maritime career in 1934 as an apprentice seaman with the United States Navy. In 1938 he obtained a third mate's license, and after employment aboard merchant ships as an able seaman worked continuously as a mate from 1942 through 1945. During this period appellant's license was upgraded to second mate. In 1946 appellant was afflicted with a nervous disorder, and after a brief hospitalization, he resumed his occupation, obtaining his Master's License in 1948. In 1949 mental illness again manifested itself, and appellant was hospitalized for a period of approximately five months. Upon discharge, appellant worked ashore as a painter from 1950 to 1952, at which time he resumed his occupation as a licensed deck officer, working steadily as such until July of 1955 when mental illness again recurred and he was again hospitalized. For the following two years appellant was plagued with cycles of recurrent periods of mental illness followed by treatment in various institutions, the final period of treatment ending in July of 1957. At this time appellant returned to his occupation, working first on various vessels in port as a night relief officer. In October, 1958, appellant applied for renewal of his Master's License. At that time he was examined by Public Health Service medical personnel, who, after examining him and reviewing both his physical and mental medical history, concluded that appellant was competent. The Coast Guard thereupon renewed his Master's License, thus entitling him to be Master of a merchant vessel.

In 1959 he obtained employment with the Los Angeles Harbor Department as a deck hand on a ferry which operated between San Pedro and Terminal Island. He worked mainly at this occupation until September of 1962, although during that period he also served as Third Mate on the HAWAIIAN RANCHER on a voyage to Honolulu from May through July, 1960, and as Second Mate on the M. V. GEAR from December, 1960, through January, 1961. For approximately five years, from 1957 to 1962, he suffered no recurrence of any mental illness. In September, 1962, when a bridge was being constructed to replace the ferry on which he had been working, he registered with the Masters, Mates and Pilots organization for a job. In September, 1962, he bid for and obtained a job on the S.S. HORACE IRVINE, owned and operated by Weyerhaeuser Steamship Company, appellee herein, as a Third Mate relief officer on an intercoastal voyage. When appellant signed aboard, he was not asked to submit to a prehiring medical examination or interview, and no questions were asked of appellant regarding his physical and mental condition. The vessel proceeded north to San Francisco and then south through the Panama Canal and up the East Coast to Baltimore. During this period, appellant performed his duties satisfactorily and in a competent manner. On October 23, three days out of Baltimore, on the return trip to the West Coast, appellant became mentally ill and he was confined to his quarters. When the vessel arrived in Panama, appellant was taken ashore and hospitalized.

The district court held that, under the facts of his case, appellant was under a duty to disclose his history of prior mental illness to appellee when he signed aboard, and that his failure to do so relieved appellee of any liability in connection with the disability resulting from appellant's illness which occurred during the voyage.² We reverse and remand.

In reaching its decision below, the court framed what it thought to be the applicable standard in the following language:

"This court must at the outset determine whether libelant was under a duty to disclose a pre-existing illness which might — and in fact did — lead to disability, even though he might at the time have considered himself fit for duty.

"The United States Court of Appeals for the Ninth Circuit has answered this question in the affirmative in the case of Tawada v. United States, 162 F.2d 615 (1947) * * * *." (Emphasis added.)³

This court's decision in Tawada does not support such a broad statement. There, Tawada was a seaman who signed aboard the respondent's vessel as an engineer in September, 1944. On the day before Tawada signed aboard, he was given a "pre-sign-on" medical examination to determine his physical fitness for sea duty and for the purpose of determining whether or not he was afflicted with a contagious disease. As part of the medical examination, an X-ray of his chest was taken. It was the practice to give each seaman a certificate of fitness in the event that no disability was discovered by routine examination before the X-ray films were developed. Two days after the examination, Tawada was recalled by the Public Health Service for a further X-ray, and it was found that he was suffering from a moderately advanced pulmonary tuberculosis. Thereafter, Tawada brought suit for wages and maintenance and cure. Tawada denied having any knowledge that he was afflicted with tuberculosis prior to signing aboard. Testimony at the trial, however, showed that Tawada was afflicted with tuberculosis as early as June, 1944, more than two months prior to signing aboard. It was admitted that the X-rays taken in June, 1944, disclosed a tubercular condition, but Tawada denied that his condition was ever disclosed to him. This court agreed with the lower court's finding that Tawada was not telling the truth in this regard, and affirmed the lower court's finding that Tawada was suffering from a far advanced case of tuberculosis, of which he was aware at the time he signed aboard in September, 1944. The court held:

"We do not understand counsel for appellant to contend seriously that appellant is entitled to recover in the event the finding that Tawada was aware of and concealed his condition at the time he signed the shipping articles, can be sustained. The ship owner\'s liability for maintenance and care extends to seamen `becoming ill or injured during the period of their service\' (Aguilar v. Standard Oil Co., 318 U.S. 724, 730, 63 S.Ct. 930, 933, 87 L.Ed. 1107), but that liability does not extend to a seaman who, with knowledge that he is afflicted with a disabling disease, conceals that fact and holds himself out as fit." Id. at 617.

The decision in Tawada merely holds that a seaman who, knowing that he is afflicted with a disabling disease, conceals that fact and holds himself out as fit for duty, is not entitled to maintenance and cure. The decision, quite clearly, does not hold that a seaman who has a good faith belief that he is fit for duty must disclose a pre-existing history of disease concerning which no inquiry is made. The court was careful to distinguish such cases in the course of its decision:

"The trial court, considering all the circumstances of this case, was justified in finding that Tawada knew he was suffering from tuberculosis at the time he signed the shipping articles and failed to make disclosure of that fact. Such circumstances distinguish the instant case from the cases upon which appellant mainly relies.

"In the cases cited by appellant either a pre-existing disease was `lighted up\' through some injury on the ship; was incurred during service on the ship, or `the seaman, without fraud or concealment, and believing himself able to perform his duty, enters upon the service\'. Neilson v. The Laura (Note 3)." Id. at 617.

The principle underlying the Tawada decision is simply this: When a seaman signs aboard, he must have a good faith belief that he is reasonably fit for duty. A seaman having such a belief is entitled to maintenance and cure and is not precluded from relief for failing to voluntarily disclose any illness or disease, whether existing or pre-existing.⁴ See Ahmed v. United States, 177 F.2d 898 (2nd Cir. 1949).⁵ In Tawada, the seaman did in fact have a disabling disease, knew that he was so afflicted, and could not but have known that such affliction rendered him unfit for duty.⁶ This knowledge, of course, negated any possible finding that he entertained the requisite good faith belief that he was fit for duty at the time he signed aboard, and compelled a finding that the seaman knowingly concealed the fact that he was unfit for duty.

It is clear from the portion of the district court's opinion quoted above that the court applied an erroneous standard in this case, for it did not consider appellant's belief that he was fit for duty relevant. The proper standard to be applied in cases such as this is whether the seaman, in good faith believed himself fit for duty when he signed aboard for duty. The crucial fact issue before the court was whether or not...