Luth v. Palmer Shipping Corp.

Decision Date12 February 1954
Docket NumberNo. 11117.,11117.
Citation210 F.2d 224
PartiesLUTH v. PALMER SHIPPING CORP.
CourtU.S. Court of Appeals — Third Circuit

Harrison G. Kildare, Philadelphia, Pa. (Rawle & Henderson, Thomas F. Mount, Joseph W. Henderson, Philadelphia, Pa., on the brief), for appellant.

Paul M. Goldstein, Philadelphia, Pa., for appellee.

Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.

KALODNER, Circuit Judge.

This is an appeal from a decree in an admiralty action awarding a seaman maintenance and cure.1

The facts as found by the District Court may be stated as follows:

Between May 2 and August 2, 1951, the libellant, William C. Luth, was employed as a boatswain on the Steamship "Nathaniel B. Palmer", owned and operated by the respondent, Palmer Shipping Corporation. In the latter part of July, 1951, while the vessel was outside Buenos Aires, Argentina, libellant became disabled because of acute stomach pains. He was treated by a physician in Buenos Aires. On August 2d, libellant's pains became so severe that he was removed to the British Hospital in Buenos Aires. The diagnosis was duodenal ulcers. Two operations were performed to relieve gastric ulcers and resect a part of the stomach, resulting in a scar across his abdomen. About this time libellant's bottom teeth were extracted. He remained at the British Hospital from August 2d until October 11, 1951, at which time he was repatriated at respondent's expense to Philadelphia, arriving there October 17, 1951. At the time of the repatriation there was due the libellant the sum of $304.85 in unearned wages, which respondent refused to pay.

On October 31, 1951, libellant reported to the United States Public Health Service at Philadelphia for treatment of his incision, which had not yet healed. While receiving treatment for his incision, he complained of stomach pains and nausea after eating. On November 29, 1951, he was given a diet schedule and was advised that due to the reduced size of his stomach pouch he should eat smaller and more frequent meals each day. He was under treatment until December 21, 1951, when he asked the Public Health Service for a fit-for-duty slip, so that he could secure employment. In compliance with his request, the Service gave him a certificate of discharge, stating that he was "fit for full duty." On the same day he joined the crew of the Steamship "Dorothy" as ship's carpenter. Two weeks after he started work on the "Dorothy" libellant first noticed a small swelling in one part of his incision. However, he continued to do his regular work. The swelling gave him no pain at that time and he did not report the condition to the Master of the vessel at any time before he left that employment on April 1, 1952, after serving for three consecutive voyages.

After he left the "Dorothy" he applied for a position as a rigger at a shipyard where he was told that he was physically unqualified for the job because he had an incisional hernia. On April 4, 1952, he returned to the Public Health Service where he was examined and advised to submit to an operation to eliminate the incisional hernia. He was also requested to obtain lower dentures to assist him in properly chewing his food, which would aid in controlling the gastritis which caused his stomach pains and nausea after eating.

Beginning April 19, 1952, libellant for various periods of time, obtained the following positions:

From April 19 to 28, 1952, he was on the "Cape Fairweather" as a standby;

From June 2 to June 6 he worked as a painter;

Starting June 9, he worked three days for Haenn Shipping, shoring up cargo; and

Starting June 15, he worked two days for the Jarka Corporation, doing similar work.

On June 20, 1952, libellant's counsel wrote a letter to respondent informing it of the fact that he had developed the hernia, that an operation was necessary and that he was without funds to maintain himself during the convalescence period. He asked that it assure him it would provide the funds for his maintenance, and if the Public Health Service did not perform the operation free of charge, he would expect the respondent to pay for it. Respondent did not reply to his letter. Respondent did not offer to pay libellant maintenance and cure if he submitted to surgery for the removal of the incisional hernia.

From the period of July 2 to September 30, 1952, libellant worked as a carpenter on the Steamship "Carolyn". Although he performed his work, he did not feel well because he was continually nauseated. Thereafter he worked intermittently as a ship watchman and longshoreman up to the date of the trial, February 2, 1953.

During the period between October 17, 1951 and February 3, 1953 (the date of trial) libellant was unable to work as boatswain because of the condition resulting from the operations. He accepted lighter work, but his condition prevented him from working steadily at those jobs.

On the facts as stated the District Court held that the "fit-for-duty" certificate given libellant by the Public Health Service on December 21, 1951 was "premature"; libellant's disability was sustained in the service of the vessel and not by reason of his own vice or misconduct; from October 17, 1951, to February 3, 1953 libellant was disabled for periods aggregating 225 days because of the condition resulting from his operation and during that period improvement of his condition through nursing care and medical attention could reasonably have been anticipated.

The District Court further found that "Although libellant has made repeated requests upon it for maintenance and cure, including the period of convalescence which would follow the operation, respondent has neither paid him any part of the sum requested nor consented to do so" and "Libellant's refusal to submit to surgery until respondent would agree to pay for his maintenance and cure during the post-operative period was reasonable."

On this appeal respondent contends that libellant's rejection, "without good reason or excuse" of the Public Health Service's proffered operation for his incisional hernia in April, 1952, barred libellant from right of recovery of maintenance and cure; libellant had no legal right to impose upon the respondent a demand for guarantee of maintenance as a condition of his accepting medical care (surgery); the District Court's finding that libellant was "reasonable" in refusing the hernia operation was unsupported by the evidence; and finally, libellant's condition had reached the point of maximum improvement through medical care in December, 1951. On this score it may be noted that following the District Court's decree and prior to argument on this appeal, respondent paid that portion of the award for maintenance embracing the period from October 17, 1951 (when libellant was repatriated to Philadelphia) to December 21, 1951 (when he first returned to work).

It is libellant's contention that he did not voluntarily reject surgery but that there was an inability on his part to accept it because he would have been financially unable to maintain himself during the four months of convalescence which would follow it. He points out that although he was unable to work by reason of his illness between October 17, 1951 and December 21, 1951, respondent then refused to pay him any maintenance2 and also refused to pay him unearned wages unquestionably due.3 In view of respondent's past course of conduct, says the libellant, he had reasonable cause to believe that respondent would fail to pay him maintenance during the period of convalescence which would follow the surgery which was offered by the Public Health Service. On that score the record discloses that following his repatriation on October 17 libellant was confined to bed for some 10-12 days; that he then reported to the Public Health Service and received a special diet prescribing meals seven times a day; that during the period between October 17 and December 21, 1951, he was virtually destitute; that his only source of income was his wife's earnings of some $30.00 a week.4

The contentions of the parties present these issues: was the District Court "clearly erroneous" in its Findings of Fact that (1) there had not been a voluntary rejection of medical care by the libellant and his refusal to submit to surgery under the circumstances was "reasonable"5 and (2) libellant's condition would have improved by medical care during the period for which he was granted maintenance and cure — October 17, 1951 to February 3, 1953,6 and in its Conclusions of Law that the respondent was liable to libellant for maintenance.7

As we have frequently noted, an appeal in admiralty partakes of a trial de novo and serves to vacate the decree of the District Court; the findings of the latter when supported by competent evidence are entitled to great weight and should not, therefore, be set aside on appeal except upon a showing that they are clearly wrong.8

In our opinion the record establishes that the District Court's fact findings were...

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16 cases
  • Vitco v. Joncich
    • United States
    • U.S. District Court — Southern District of California
    • April 29, 1955
    ...City of New York, 2 Cir., 1946, 153 F. 2d 427; Benton v. United Towing Co., D.C.N.D.Cal.1954, 120 F.Supp. 638, 641; cf. Luth v. Palmer Shipping Co., 3 Cir., 210 F.2d 224, certiorari denied, 1954, 347 U.S. 976, 74 S.Ct. 788, 98 L.Ed. 1116, and comment by Roscoe Pound, 14 NACCA L.J. 203 (Nov.......
  • Sanford Bros. Boats, Inc. v. Vidrine
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    • U.S. Court of Appeals — Fifth Circuit
    • May 15, 1969
    ...right to maintenance and cure is forfeited by voluntary rejection of hospital care on his part (see Luth v. Palmer Shipping Corp., 1954 A.M.C. 502, 210 F.2d 224, 228 (3 Cir., 1954), and cases there cited). It seems to have been consistently recognized that a seaman is not entitled to reject......
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    • United States
    • U.S. Supreme Court
    • April 17, 1961
    ...hold the shipowner to his duty to provide maintenance and cure. Williams v. United States, D.C., 133 F.Supp. 319; Luth v. Palmer Shipping Co., 3 Cir., 210 F.2d 224; The Bouker No. 2, 2 Cir., 241 F. 831; see Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 58 S.Ct. 651, 82 L.Ed. 993. But without c......
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