Caulfield v. AC & D Marine, Inc.

• Decision Date: 05 January 1981
• Docket Number: No. 80-3356,80-3356
• Citation: 633 F.2d 1129,1982 A.M.C. 1033
• Parties: Wayne Michael CAULFIELD, Plaintiff-Appellee, v. AC & D MARINE, INC. and Travelers Insurance Company, Defendants-Appellants. Summary Calendar. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1129

633 F.2d 1129

Wayne Michael CAULFIELD, Plaintiff-Appellee, v. AC & D MARINE, INC. and Travelers Insurance Company Defendants-Appellants.

No. 80-3356

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit A

Jan. 5, 1981.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John O. Charrier, Jr., New Orleans, La., for defendants-appellants.

No appellee brief filed.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEE, RUBIN and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

Plaintiff Wayne Michael Caulfield was employed by AC & D Marine, Inc. as a pilot and relief captain aboard the M/V MAERINE D. On December 21, 1978, plaintiff was aboard the M/V MAERINE D and suffered injuries when he fell over an anchor. Immediately after the accident, plaintiff received emergency medical care at a nearby hospital. The following day plaintiff was treated by Dr. Anthony La Nasa. AC & D Marine does not customarily refer injured employees to public health facilities; rather the company normally permits an injured employee to seek care from any private physician. If the employee expresses no preference for a particular doctor, the company selects a physician to treat the injured employee. Dr. La Nasa regularly treats employees of AC & D Marine who do not have personal physicians.

On January 4, 1979, Dr. La Nasa released plaintiff for light duty with instructions to return if he experienced further pain or disability. Plaintiff continued to experience pain; however he did not return to Dr. La Nasa.

In late January, 1979, plaintiff instituted this suit against AC & D Marine and its insurer, Traveler's Insurance Company, asserting claims under the Jones Act, 46 U.S.C. § 688, general maritime law and seeking to recover maintenance and cure. Thereafter, plaintiff's attorney contacted Traveler's to discuss maintenance and cure payments. Traveler's informed plaintiff's attorney by letter that the company did "not expect ... (plaintiff) to be treated at the United States Public Health Service Hospital" (emphasis in original) and that Traveler's "would be glad to pay for any medical care which is necessary" as a result of the accident.

In April, 1979, plaintiff was examined by Dr. Henry La Rocca, an orthopedic surgeon. Dr. La Rocca recommended that plaintiff be hospitalized for further tests to determine the cause of his continued pain. At this point, Traveler's informed plaintiff that it objected to his continuing under the care of Dr. La Rocca and tendered the services of Dr. Harold Stokes, another orthopedic surgeon. Dr. Stokes examined the plaintiff and found no objective clinical manifestations of damage to plaintiff's back.

Plaintiff followed the recommendation of Dr. La Rocca and entered the hospital where a venogram and a bladder pressure test indicated abnormalities in the vertebrae in plaintiff's lower back. Dr. La Rocca performed surgery on plaintiff on May 30, 1979. Finding a weakened disc between two vertebrae, Dr. La Rocca fused the vertebrae to brace the incompetent disc. The fusion results in immobility between the fused joints.

Prior to the trial of this case, the district court, pursuant to 28 U.S.C. § 636(c), severed the issues of maintenance and cure from the other claims and referred these issues to a magistrate. In a hearing before the magistrate, the parties disputed, inter alia, the questions whether the plaintiff forfeited his right to cure by seeking treatment from a private physician of his own choice and the per diem rate at which maintenance should be paid. The magistrate concluded that the defendant employer was liable for the costs of the plaintiff's medical care despite the fact that plaintiff received treatment from a physician of his own choosing rather than from the doctor preferred by the company. The magistrate concluded that $15 per day was "a fair and reasonable estimate of this plaintiff's daily living expenses ashore during his period of recuperation."

The district court entered judgment for the plaintiff, ordering the defendants to reimburse plaintiff for his medical expenses and to pay maintenance at the rate of $15 per day from the date of the accident until such time as the plaintiff was fit for duty or had reached the point of maximum care.

On appeal, defendant-appellants argue, first, that the award of maintenance at the rate of $15 per day is unsupported by any evidence in the record and thus "clearly erroneous," and second, that plaintiff rejected the defendant's "tender of cure" and thus forfeited his claim to recover his medical expenses.

I. THE PER DIEM RATE OF MAINTENANCE

A seaman who is injured or falls ill while he is in the service of the ship is entitled to recover "maintenance" from his employer or the shipowner. Maintenance is intended to cover the reasonable costs the seaman incurs in acquiring food and lodging ashore during the period of his illness or disability. The obligation to provide maintenance and the accompanying duty to tender cure, i. e., medical care, to an ill or injured seaman are "among the most ancient and pervasive of all the liabilities imposed on a shipowner." Oswalt v. Williamson Towing Company, Inc., 488 F.2d 51, 54 (5th Cir. 1974). The Supreme Court has long recognized the importance of these remedies, The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760 (1903); Chelentis v. Luckenbach S. S. Co., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171 (1918), and has declared that the doctrines of maintenance and cure are to be liberally construed to benefit the seaman. "When there are ambiguities or doubts, they are resolved in favor of the seaman." Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962).

Maintenance payments are designed to provide subsistence to the injured seaman and not to compensate the seaman for any specific injury or damage; thus the rate at which maintenance is paid tends to become standardized to reflect the costs of food and lodging in a particular area. The customary rate in this circuit, as well as many other areas, has long been $8 per day.

Recently, however, commentators have noted that the tendency to standardize maintenance awards without adjustments to reflect the effect of inflation on the seaman's cost of living threatened to eviscerate the traditional concept of maintenance.

The failure to adjust the rate to reflect inflation suggests that maintenance is no longer regarded as a living allowance sufficient to support even the proverbially impecunious unmarried male seaman in the modest circumstances to which he is thought to be entitled.

G. Gilmore and C. Black, Jr., The Law of Admiralty, 307 (2nd ed. 1975).

Today, practically no one is capable of maintaining himself at the $8.00 per day, especially ashore. If maintenance is to retain the same definition that it had many years ago, this rate is obviously unrealistic ...

1B Benedict on Admiralty, § 51 (7th ed. 1976).

Courts have also become sensitive to the fact that the standard award of $8 per day may be inadequate to cover the basic costs of food and lodging. In Robinson v. Plimsoll Marine, Inc., 460 F.Supp. 949 (E.D.La.1978), an injured seaman sought to increase his maintenance, which was then being paid at the $8 per day rate, to an amount which would actually cover his basic expenses of living ashore. The district court reasoned that although $8 per day had been the customary rate of maintenance in the Eastern District of Louisiana for almost fifteen years, the amount of maintenance due remained essentially a factual question. Id. at 950. On the basis of testimony by an expert witness, the court concluded that meals and lodging costing $8 per day in 1969 would cost approximately $15 per day in 1978 and that plaintiff's daily maintenance should be paid at this higher rate.

The amount of maintenance to which an injured seaman is entitled is a question of fact. United States v. Robinson, 170 F.2d 578 (5th Cir. 1948). Thus our review of the district court's award of $15 per day is limited by the clearly erroneous standard of Fed.R.Civ.P. 52(a). In this case, plaintiff did not offer any expert testimony similar to that in Plimsoll Marine. The defendant argues that in the absence of such testimony there is no evidence to support maintenance in excess of the customary $8 per day and thus the award is clearly erroneous. We disagree.

In this case, plaintiff himself testified as to the average costs he incurred for food and lodging during his period of disability. Plaintiff testified that food similar to that he usually ate aboard the ship cost approximately $9 to $10 per day when he purchased it ashore and that lodging would cost approximately $12 per day. We believe that the seaman's own testimony as to his expenses is competent, probative evidence of the amount of maintenance due. The defendant offered no evidence that these figures were unreasonable or inaccurate estimates of the costs of subsistence in the New Orleans area. Based upon this record we cannot say that the district court clearly erred when it ordered maintenance at the rate of $15 per day based upon the magistrate's conclusion that this sum was a "fair and reasonable estimate of plaintiff's daily living expenses ashore during his period of recuperation."

II. THE PLAINTIFF'S RIGHT TO RECOVER THE COSTS OF HIS CURE

Appellant relies on this court's opinion in Sanford Bros. Boats, Inc. v. Vidrine, 412 F.2d 958 (5th Cir. 1969), as authority for its argument that the plaintiff here, by continuing to seek care from a private physician of his own choice after being informed that the employer wished to provide medical care through another private physician, forfeited his right to reimbursement for his subsequent medical expenses. In Sanford Bros., the employer initially authorized the injured seaman to seek private medical treatment. Later however, the...