Cortes v. Baltimore Insular Line
| Decision Date | 28 July 1931 |
| Docket Number | No. 357.,357. |
| Citation | 52 F.2d 22 |
| Parties | CORTES v. BALTIMORE INSULAR LINE, Inc. |
| Court | U.S. Court of Appeals — Second Circuit |
Hunt, Hill & Betts, of New York City (George Whitefield Betts, Jr., and H. Victor Crawford, both of New York City, of counsel), for appellant.
Jesse L. Rosenberg, of New York City, for appellee.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
This is an action at law brought by the administrator of Victor Manuel Santiago, deceased, on the theory that his death was caused by the defendant's negligence. The defendant is a New Jersey corporation with an office in the city of New York, and it operated a vessel upon which Santiago shipped as a seaman for a voyage from the port of New York to Boca Grande, Fla., and return, in October, 1928. During the return voyage Santiago became sick. After the vessel reached port he was removed to the Staten Island Marine Hospital, where his condition was diagnosed as lobar pneumonia with consolidation on both sides. He died the following morning.
The complaint charges that during the several days of Santiago's dangerous illness the officers of the ship failed to give him medical care and attention, allowed him to remain in the sailors' quarters in the fore-castle, which were cold, unsanitary, and equipped with insufficient bedding, provided him with insufficient and improper food, failed to obtain aid from passing vessels, sought no medical assistance when anchor was dropped at Sandy Hook, and after the steamer's arrival at its destination delayed for several hours to remove him to a hospital, and that his death resulted from the negligence of the defendant as above set forth At the conclusion of the evidence, the jury found for the plaintiff; and, since the record is not entirely barren of evidence to support some of the charges, we must take it that the defendant failed to give Santiago the care he should have been given during his illness. The evidence would not, in our opinion, sustain a verdict based on the theory that any affirmative acts of the defendant's agents caused his death, but it might justify a finding that the defendant omitted performance of its maritime duty to provide "cure" to the sick seaman, in that it failed to land him at some port on the voyage north, or to furnish more expert medical treatment on board, or to get him promptly to a hospital on arrival of the vessel at the port of New York. We shall assume for purposes of our discussion a causal relationship between such omission by the defendant and the sailor's death.
By the maritime law a seaman who falls sick or is wounded in the service of the ship has always been entitled to "wages, maintenance and cure" — that is, care, for the word "cure" means care, not a positive cure, which may, indeed, be impossible. The Mars, 149 F. 729, 731 (C. C. A. 3); The Bouker No. 2, 241 F. 831, 835 (C. C. A. 2). If a breach of the obligation to care for the sick or wounded seaman aggravated his condition and resulted, for example, in the amputation of a limb or in permanent disability, he could recover not only expenses for medical treatment, but compensatory damages as well. The Iroquois, 113 F. 964, 969 (D. C. N. D. Cal.) affirmed, 194 U. S. 240, 24 S. Ct. 640, 48 L. Ed. 955; The Troop, 128 F. 856 (C. C. A. 9); The City of Alexandria, 17 F. 390, 395 (D. C. S. D. N. Y.); Scarff v. Metcalf et al., 107 N. Y. 211, 216, 13 N. E. 796, 1 Am. St. Rep. 807; Benedict, Admiralty (5th Ed.) § 83. But if death resulted, no action lay, for neither the general maritime law nor the common law gave an action for the death of a person. Western Fuel Co. v. Garcia, 257 U. S. 233, 240, 42 S. Ct. 89, 66 L. Ed. 210; Lindgren v. United States, 281 U. S. 38, 47, 50 S. Ct. 207, 74 L. Ed. 686. Hence the plaintiff must show some statutory authorization for the present suit. He relies upon section 33 of the Merchant Marine Act (commonly referred to as the Jones Act), 41 Stat. 1007 (46 USCA § 688).
This statute provides that "any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law," in which action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply, and that, "in case of the death of any seaman as a result of any such personal injury," his personal representative may maintain an action for damages, and "in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable." The statutes referred to are the Federal Employers' Liability Act (35 Stat. 65), and its amendments (45 USCA §§ 51-59). Panama R. R. Co. v. Johnson, 264 U. S. 375, 391, 44 S. Ct. 391, 68 L. Ed. 748; Lindgren v. United States, supra. That act declares that a common carrier shall be liable in damages to any person suffering injury while he is employed by such carrier in interstate commerce, or, in case of the death of such employee, to his personal representative (for the benefit of designated surviving relatives), "for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier." Section 1 (45 USCA § 51).
The chief question raised by this appeal is whether section 33 of the Jones Act can properly be construed as creating a cause of action for the death of a seaman resulting from an illness which he contracted without fault attributable to the defendant, where the ship's officers neglect to provide proper medical treatment and thereby (it is assumed) fail to check a curable illness or accelerate death from a noncurable one.
It is argued by the appellant that a seaman who falls ill without fault on the part of the ship does not suffer a "personal injury" within the meaning of the statute. But, if a failure to treat the illness aggravates the disease, we should find no difficulty in considering the aggravated condition as a "personal injury," assuming that the statute should be interpreted to have been meant to cover such a case. Analogies may be found in decisions under compensation statutes where acceleration of a pre-existing disease resulting in death is held to come within the term "injury." In re Brightman, 220 Mass. 17, 107 N. E. 527, L. R. A. 1916A, 321; Pace v. N. D. Workmen's Compensation Bureau, 51 N. D. 815, 201 N. W. 348.
It is another question whether the Jones Act was meant to cover such a case as the plaintiff's. On behalf of the appellant it is argued that the duty to provide cure is a contractual obligation (see Pacific Co. v. Peterson, 278 U. S. 130, 138, 49 S. Ct. 75, 78, 73 L. Ed. 220), and that nonperformance of a contractual obligation cannot be deemed "negligence" within the...
To continue reading
Request your trial
-
Sperbeck v. AL Burbank & Co.
...the ship's failure to afford him proper medical care. No claim was made for the expense of accrued maintenance and cure. This court — 2 Cir., 52 F.2d 22 — held that the obligation to provide cure was contractual, and that non-performance of a contractual obligation could not be deemed "negl......
- In re Central Railroad of New Jersey, 425.