Martinez v. Star Fish and Oyster Co., Inc.

• Decision Date: 23 October 1974
• Docket Number: Civ. A. No. 6296-70-T.
• Citation: 386 F. Supp. 560
• Parties: Manuel MARTINEZ, Plaintiff, v. STAR FISH AND OYSTER CO., INC., Defendant.
• Court: U.S. District Court — Southern District of Alabama

386 F. Supp. 560

Manuel MARTINEZ, Plaintiff, v. STAR FISH AND OYSTER CO., INC., Defendant.

Civ. A. No. 6296-70-T.

United States District Court, S. D. Alabama, S. D.

October 23, 1974.

Ross M. Diamond, III, Mobile, Ala., Ned W. Johnson, Beaumont, Tex., for plaintiff.

Thomas M. Galloway, and Robert H. Smith, Mobile, Ala., for defendant.

DANIEL HOLCOMBE THOMAS, District Judge.

The above-styled cause was heard by the Court without a jury and taken under submission on the 25th day of September 1974. Having considered the testimony, exhibits, stipulations and arguments of counsel, the Court makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. This action was brought by the plaintiff to recover maintenance and cure and unearned wages for injuries which he sustained while in the service of the M/V BABY ANN, a 70-foot wooden fishing vessel built in 1929 and owned and operated by the defendant, Star Fish and Oyster Co., Inc. (Star Fish). Plaintiff also seeks damages for failure on the part of Star Fish to provide said maintenance and cure. Finally, plaintiff seeks general damages for Star Fish's negligence and its failure to provide a seaworthy vessel. In reply, Star Fish asserts in its Answer that plaintiff's injuries resulted from plaintiff's own negligence.

2. Plaintiff's trip aboard the BABY ANN was his first occasion to be employed as a crewmember of a fishing vessel. Prior to this, plaintiff had been employed primarily by his father for whom he at different times repaired radio and television sets and also drove trucks and moved furniture in connection with his father's transfer and storage business. Plaintiff had also previously worked for about three years as a "reader" for a local newspaper and was laid off from that job several years prior to 1969. Although at one time he did maintain his own apartment, plaintiff has resided most of his life at his father's home and was staying there during the period immediately prior to his trip on the BABY ANN.

3. Having been recruited by the BABY ANN's captain, the plaintiff signed on board the vessel as a deckhand in Galveston, Texas on March 21, 1969. The BABY ANN then departed Galveston with the intended purpose of fishing while enroute to Mobile, Alabama. The fishing trip produced a "broker", meaning few fish were caught, as a result of which Star Fish was obligated to pay each crewmember $25.00 in wages, These wages have never been paid the plaintiff.

4. Early on the morning of March 24, 1969, the plaintiff was injured while the BABY ANN was anchored at the East Flower Garden, an area of the Gulf of Mexico located some one hundred twenty-five miles southeast of Galveston. At the time of his accident, plaintiff was leaving the galley and going aft when he slipped on some oil on the deck, fell backwards and struck his head and lower back on the forward fish hatch. The prevailing weather conditions at the East Flower Garden were good with only moderate wave or swell heights.

5. Prior to plaintiff's accident, the plaintiff and at least one other crewmember had complained to the BABY ANN's captain about diesel oil from an above deck fuel tank being on the deck and causing a slippery condition. Other than having the deck washed down, the captain did nothing further to prevent the accumulation of oil on the deck.

6. After his fall, plaintiff had to be assisted below deck to his bunk. As a result of his injuries, he was forced to remain in his bunk until the BABY ANN returned to Galveston, arriving there on March 26, 1969. Throughout the period between his accident and arrival back at Galveston, plaintiff complained about severe back pains. At Galveston, plaintiff's condition necessitated the use of a stretcher to move him from his bunk to a waiting ambulance. Plaintiff was given a master's certificate by the BABY ANN's captain and then taken to the local Public Health Service Hospital.

7. Plaintiff was admitted to the Public Health Service Hospital and remained there until March 31, 1969, at which time he was discharged with a designation of "not fit for duty". Plaintiff returned to the public health hospital at least five times during the following year for further treatment and examination. His last visit to the public health hospital was on November 30, 1970. Previously on April 23, 1969, plaintiff began treatment by a private neurosurgeon. Plaintiff was examined and treated by this private physician on eleven occasions, with charges totalling $210.00.

8. As a result of his fall aboard the BABY ANN, plaintiff suffered a mild cerebral concussion and a strain or sprain of the lower back. Plaintiff's recovery to a point of maximum cure required eighteen (18) months from the date of injury. Additionally, plaintiff sustained a ten percent (10%) general disability. Since his accident, plaintiff has experienced occasional dizzy spells. However, plaintiff's earning capacity has in no way been diminished by his injuries or his disability.

9. After being discharged from the Public Health Service Hospital, plaintiff returned to live at his father's home where he still resides. For approximately eight (8) months, plaintiff was unable to perform any work. Following this period, he again worked for his father although limited at first to radio and television repair and light furniture moving. Within another year's time, plaintiff was able to again help drive his father's trucks. Later, plaintiff was temporarily employed for about three months by a local furniture company as a truck driver and furniture mover. Although plaintiff continues to work for his father, he has now ceased driving trucks due to problems caused by his dizzy spells. In essence however, plaintiff has returned to substantially the same life he had known prior to his accident onboard the BABY ANN. While working for his father, both before and commencing with eight months after his accident, plaintiff's wages have been $75.00 per week.

CONCLUSIONS OF LAW

1. The Court has jurisdiction over this matter based upon its admiralty and maritime jurisdiction. 28 U.S.C.A. § 1333.

2. The plaintiff herein seeks maintenance and cure for injuries which he sustained while employed as a seaman in the service of the defendant's vessel, lost wages and damages for failure on the part of the defendant to pay said maintenance and cure. Plaintiff also seeks damages for negligence under the Jones Act, 46 U.S.C.A. § 688, and damages for unseaworthiness under general maritime law.

I

3. Historically, the duty of the shipowner to provide an injured seaman maintenance and cure has been viewed as necessitated by the need to alleviate the physical and financial hardships which would otherwise beset the seaman when set ashore. Harden v. Gordon, 11 Fed.Cas. p. 480, Case No. 6,047 (C.C.D. Me.1823); Reed v. Canfield, 20 Fed.Cas. p. 426, Case No. 11,641 (C.C.D.Mass. 1832); Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 528, 58 S.Ct. 651, 82 L.Ed. 993 (1938).¹

4. In keeping with its historical purpose, the duty to provide maintenance and cure extends only as far as the seaman's needs. Calmar S.S. Corp. v. Taylor, supra, at 530, 58 S.Ct. 651. Recovery by a seaman has therefore been limited to amounts actually expended or liabilities actually incurred by him for his maintenance and cure. United States v. Johnson, 160 F.2d 789, 1947 AMC 765 (CA9 1947), aff'd on the question of maintenance, 333 U.S. 46, 50, 68 S.Ct. 391, 92 L.Ed. 468; Marine Drilling, Inc. v. Landry, 302 F.2d 127, 1962 AMC 1957 (CA5 1962).² Accordingly, a seaman has no right to maintenance and cure when he lives at home with his parents and has incurred no actual expense or liability for his care and support. United States v. Johnson, supra; Field v. Waterman S.S. Corp., 104 F.2d 849, 1939 AMC 1555 (CA5 1939). Under such circumstances, the seaman must bear the burden of proving that he himself did in fact incur expense or liability for his maintenance and cure before he will be entitled to a recovery. Marine Drilling, Inc. v. Landry, supra.

5. Upon being discharged from the Public Health Service Hospital, plaintiff returned to his father's home where he had resided prior to his accident and where he continues to reside. With the exception of medical expenses discussed below, plaintiff presented no evidence indicating that he had actually incurred any expense or liability for his maintenance and cure during the period of his convalescence. Accordingly, the Court is of the opinion that the plaintiff is not entitled to an award for maintenance and cure.

6. The plaintiff did present evidence of medical expenses incurred by him and arising out of services rendered by a private neurosurgeon. But the prevailing rule is that a seaman who leaves a Public Health Service Hospital for special or private treatment at a private hospital or the office of a private physician when such treatment is available free of charge at the public health hospital, cannot recover the cost of such treatment. Kossick v. United Fruit Co., 365 U.S. 731, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961). This general rule for forfeiture of maintenance and cure under such circumstances has recently been stated by the Fifth Circuit in Oswalt v. Williamson Towing Co., Inc., 488 F.2d 51, 53, 54, 1974 AMC 1311 (CA5 1974).

A forfeiture for unreasonable refusal (to accept medical care offered by the employer or through a government hospital) is called into play in one of two ways. . . . (1) the seaman may simply reject all timely medical attention or quit participation in a course of therapy already begun. . . . (2) injured seamen who require extensive convalescence are ordinarily cared for at public health and marine hospitals. When these tax supported facilities are used the seaman incurs no expense for subsistence or medical care during the recovery period. Consequently, he is entitled to no compensation from his employer for the non-existence expenditures. . . . . The logical corollary to

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