Keefe v. American Pac. SS Co., 14299.

• Decision Date: 19 February 1953
• Docket Number: No. 14299.,14299.
• Citation: 110 F. Supp. 853
• Parties: KEEFE v. AMERICAN PAC. S. S. CO.
• Court: U.S. District Court — Southern District of California

110 F. Supp. 853

KEEFE v. AMERICAN PAC. S. S. CO.

No. 14299.

United States District Court S. D. California, Central Division.

February 19, 1953.

Herbert Resner, Los Angeles, Cal., for libelant.

Dan Brennan (of Overton, Lyman, Prince & Vermille), Los Angeles, Cal., for respondent.

TOLIN, District Judge.

The facts of this case are relatively simple. The dispute arises in application of well-established principles of maritime law thereto.

On November 5, 1951, at the Port of San Pedro, California, libelant signed written articles to serve aboard the U.S.N.S. Millicoma in the capacity of oiler at base wages of $241 per month for a voyage not to exceed twelve calendar months. He signed articles, entered upon duty and rendered deck service while the vessel was still tied to the wharf at that Port. Before it left the Port upon the contemplated voyage but after the signing of the articles and after the entry upon his duties, libelant was injured while driving away from the vessel on a personal mission. He was provided hospitalization and medical care so there is no claim on this account. Although he has received his cure, he asks for maintenance during the period of his disability. Both parties conceded that if he is entitled to this, that a period of 172 days is the appropriate time period. The voyage was actually un-undertaken by the vessel and was still in progress at the time this action was commenced. It is noted that the voyage was for a period of twelve months and that before the twelve-month period had ended, libelant, having become fit for duty, shipped out on another vessel on May 19, 1952. He claims wages until that date. Although many shipowners in this area had entered into a contract with the appropriate Maritime Union fixing a maintenance rate, the respondent shipowner was not a party to that or any contract on this subject.

It is now settled law that a seaman injured ashore while a crew member of a vessel is injured in the vessel's service. Aguilar v. Standard Oil Co. of New Jersey, 1942, 318 U.S. 724, 63 S.Ct. 930, 87 L.Ed. 1107; Farrell v. United States, 1948, 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850; Warren v. United States, 1950, 340 U.S. 523, 71 S.Ct. 432, 95 L.Ed. 503; Ellis v. American Hawaiian S. S. Co., 9 Cir., 165 F.2d 999, 1948 A.M.C. 707; Kyriakos v. Goulandris, 2 Cir., 151 F.2d 132, 1945 A.M.C. 1041; Nowery v. Smith, 3 Cir., 161 F.2d 732, 1947 A.M.C. 756; Moss v. Alaska Packers Ass'n, 70 Cal.App.2d Supp. 857, 160 P.2d 224, 1945 A.M.C. 493; Stanley v. Weyerhaeuser, S. S. Co. (Superior Court., Calif. San Francisco) 1947 A.M.C. 411; Shipowners' Liability Convention of September 29, 1939, 54 Stat. 1693.

In Norris, "The Law of Seamen", Vol. II, 168, the author discusses the meaning of the phrase "in the service of the ship" and says:

"The meaning of `in the service of the ship' was further clarified in Farrell v. United States, by the court's explanation that it meant that the seaman must generally be answerable to the call of duty rather than that at the time of the onset of illness or injury he was in the actual performance of routine tasks or engaging in activities pursuant to specific orders. Since the Aguilar case, a liberal interpretation of `in the service of the ship' has been applied. A number of cases have been decided wherein awards of wages and maintenance and cure have been granted to seamen ill or injured ashore while in the pursuance of their own relaxation and pleasures.

"The effect of the Aguilar decision has been to expand and elasticize the meaning and extent of the phrase `in the service of the ship' so that at the present time it virtually encompasses all of the seaman's activity from the time he first boards the vessel to the time that he departs from her after signing off, and perhaps, for a reasonable time thereafter should any illness manifest itself traceable to his activities while in the ship's service. The personal nature of the seaman's activity at the moment of illness or injury is not the determining factor in deciding his right to an award. * * *"

It appears that wages and maintenance have been allowed where the seaman was injured in a barroom altercation, Aguilar and Moss cases above cited, and when assaulted as in the Kyriakos case, supra, as well as in a diving accident suffered while engaged in recreation ashore as in the Ellis case, supra, and in a fall from a balcony while ashore as in the Warren case, supra. The Court sees no distinction in principle between the suffering of an injury in a private automobile accident and in the various cases cited. There is no suggestion of misconduct on the part of libelant. The voyage has outlasted libelant's disability. The Court awards him maintenance for 172 days, being the agreed period of his disability. The parties are in active dispute as to the rate of maintenance. Respondent claims that it should be $4 a day. This claim is based upon a contention that this sum of money is adequate to provide room and lodging ashore for a seaman. There has not been any evidence to that effect. Libelant insists upon $8 per day upon the basis...