Medina v. Erickson

• Decision Date: 19 October 1955
• Docket Number: 14194.,No. 14186,14186
• Citation: 226 F.2d 475
• Parties: Manuel Machado MEDINA, Appellant and Cross-Appellee, v. Sara ERICKSON, Administratrix of the Estate of Peter Erickson, Deceased, Appellee and Cross-Appellant. Sara ERICKSON, Administratrix of the Estate of Peter Erickson, Deceased, Appellant, v. Manuel Machado MEDINA, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

226 F.2d 475 (1955)

Manuel Machado MEDINA, Appellant and Cross-Appellee, v. Sara ERICKSON, Administratrix of the Estate of Peter Erickson, Deceased, Appellee and Cross-Appellant.

Sara ERICKSON, Administratrix of the Estate of Peter Erickson, Deceased, Appellant, v. Manuel Machado MEDINA, Appellee.

Nos. 14186, 14194.

United States Court of Appeals Ninth Circuit.

October 19, 1955.

COPYRIGHT MATERIAL OMITTED No. 14186.

Higgs, Fletcher & Mack, San Diego, Cal., Derby, Cook, Quinby & Tweedt, San Francisco, Cal., for appellant.

David A. Fall, San Pedro, Cal., for appellee.

No. 14194.

David A. Fall, San Pedro, Cal., for appellant.

Derby, Cook, Quinby & Tweedt, San Francisco, Cal., Higgs, Fletcher & Mack, San Diego, Cal., for appellee.

Before STEPHENS and FEE, Circuit Judges, and WIIG, District Judge.

WIIG, District Judge.

The questions presented in these appeals and cross-appeals from a decree and orders of the trial court, involving the same parties and arising out of the same factual situation, were consolidated for argument and disposition in this court.

Peter Erickson's administratrix was awarded the sum of $6,041.40 as the chief engineer's share of the catch of the fishing vessel D/V Alphecca for two trips on which the decedent did not serve as the chief engineer because of illness. Medina, master and part owner of the vessel, appeals from this award, which was made on the theory that Erickson had been employed for a term of twelve calendar months.

Prior to April 12, 1948, Erickson signed shipping articles with Medina to work as chief engineer on the Alphecca, which on that date started her maiden voyage, departing from San Diego, California. The articles provided in part as follows:

"It is agreed between the master and seamen of the American oil ship Alphecca, of which Manuel M. Medina is at present master, or whoever shall go for master, now bound from the port of San Diego, California, to Balboa, Canal Zone, and other ports and points on the Pacific Coast and return, for one or more trips and such other ports and places in any part of the world as the master may direct, and back to a final port of discharge in the United States for a term of time not exceeding 12 calendar months."

Medina had also executed an agreement with the Cannery Workers' and Fishermen's Union and the Machinists' Union, of which Erickson was a member, which contained this provision:

"Article 5

"Section 2(a) If any member becomes ill or is injured accidentally on the boat in line of duty, either at sea or in port, a doctor\'s certificate may be required by the master before permitting said crew member to leave the fishing grounds to return home. Any crew member returning home with the captain\'s approval shall receive a full share for that particular trip only. The cost of transportation home shall be paid by the boat owners. If thereafter the captain employs a substitute to take such man\'s place upon return to port, then the amount paid the substitute shall be considered trip expense."

During this trip, Erickson became ill and was put ashore at Acapulco, Mexico, on May 21, 1948. He did not rejoin the Alphecca which made two more trips before he died on October 8, 1948. Erickson received his share for the first trip.

It is agreed that a chief engineer is a seaman and that a share of a catch is equivalent to wages. The general rule that the payment of wages to a seaman who becomes ill while working continues throughout his term of employment applies here. Jones v. Waterman S. S. Corp., 3 Cir., 1946, 155 F.2d 992.

Query: When did Erickson's term of employment end?

Shipping articles should, as far as practicable, state "the duration of the intended voyage or engagement, and the port or country at which the voyage is to terminate." 46 U.S.C.A. § 564.

In Luksich v. Misetich, 9 Cir., 1944, 140 F.2d 812, 813, a suit for maintenance and wages and for damages, the shipping articles described the contemplated voyage as one from Los Angeles, California, to "`Mexican Waters, Mexico, for one or more trips and return, and such other ports and places in any part of the world as the Master may direct, and back to a final port of discharge in the United States, for a term of time not exceeding six (6) calendar months.'" At page 815, the court said:

"The shipping articles do not embody all the basic provisions of the employment (duration of contract and compensation) and consequently must be supplemented by additional terms to constitute a complete agreement. The oral arrangements between the parties herein preceded the written and therefore fall within the familiar principle that oral evidence is admissible to supply omissions in a written contract incomplete on its face. For these reasons we do not agree with the theory that the duration of employment should be restricted to a period consistent with the shipping articles. But a consideration of the evidence leads unerringly to the conclusion that at the time libellant embarked upon the voyage during which he was injured, his agreement with Misetich related to the tuna season only, the result reached by the district court."

Although there is authority for the proposition that any ambiguity in interpreting shipping articles should be construed in favor of the seamen, either because they are wards of admiralty who need the court's protection, or because contracts when ambiguous should be resolved against the maker, Gulf Refining Co. v. Home Indemnity Co. of New York, 8 Cir., 1935, 78 F.2d 842; The Thomas Tracy, 2 Cir., 1928, 24 F.2d 372; The Quoque, D.C.E.D.Va. 1919, 261 F. 414; The Catalonia, D.C. E.D.Va.1916, 236 F. 554, it is still true that extrinsic evidence is admissible and may be considered for the purpose of clarifying ambiguous terminology in the articles. Farrell v. United States, 1949, 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850; Luksich v. Misetich, supra; Vitco v. Joncich, D.C.S.D.Cal.1955, 130 F.Supp. 945. At the time Erickson signed the shipping articles in question, there was a custom of the industry at the port of San Diego that seamen, including chief engineers, by signing such articles, engaged themselves for only one voyage. There was also evidence from which it could be inferred that Erickson knew of this custom, because he had signed similar articles on two previous occasions within less than a year prior to April 12, 1948. That the remaining members of the crew of the Alphecca and Medina followed this custom is shown by the fact that the seamen and the master signed identical shipping articles for the second and third voyages of the Alphecca. We take note¹ that the agreement between the owners and the union provided that if any member of a crew became ill at sea and returned home with the captain's approval, he would "receive a full share for that particular trip only." Because the articles did not with particularity state the duration of the intended voyage, and in the light of the prevailing custom to sign on for a voyage rather than for a fixed period, we hold that the twelve-month period is a limitation upon the duration of the voyage and not a stated period of employment. Farrell v. United States, supra. Erickson's employment having ended when the Alphecca completed the first voyage, the trial court erred in awarding his administratrix a sum equal to the chief engineer's share of the catch for the second and third trips of the fishing vessel.

The trial court held that Erickson's administratrix was not entitled to recover in her causes of action for pain and suffering and for wrongful death. The following findings of fact as to each cause were made by the court:

"That the respondent, Manuel Machado Medina, was not negligent; that Peter Erickson was given reasonable medical care and treatment at all times while he was aboard the D/S `Alphecca\'; that any delay, if any, in taking Peter Erickson to the nearest port with medical facilities was a reasonable delay; that for some time prior to May, 1948, Peter Erickson had been and at the time of his illness was suffering from incurable bronchogenic carcinoma; that the pain and suffering, if any, and the death of said Peter Erickson resulted from an incurable bronchogenic carcinoma from which he was suffering; that the pain and suffering, if any, and the death of said Peter Erickson was not due to any act or omission on the part of the respondent, Manuel Machado Medina."

The record reveals that in May 1947, while employed as chief engineer aboard another fishing vessel, Erickson became ill in the early part of the voyage and was flown back from Guaymas, Mexico, to San Pedro, California, with a lung infection. He was sent to the desert for some time, and resumed his occupation as an engineer serving aboard a fishing vessel on voyages commencing October 17, 1947, and December 29, 1947.

On April 12, 1948, Erickson, then 49 years of age, put to sea as chief engineer of the D/V Alphecca, with Medina as master, and twelve other men, for the fishing banks off Central America. All of the men were fishing on shares, and each was liable for his proportionate share of the costs of the voyage. On or about May 8, 1948, Medina's attention was called to the fact that Erickson was not feeling well. Approximately two days later, Erickson was directed to remain in bed and was put under the care of Emmett Fowler, the navigator, who was experienced in the treatment of sick and injured men, and who had treated colds and administered drugs during his service aboard submarines as engineering officer and executive officer in the United States Navy from 1941 to 1945. Erickson's temperature was 102°, and except for the daily morning drop in the thermometer reading, his temperature remained about the same until May 21, 1948. While he was in bed, all of his meals were served to him by the cook, who also at intervals during the day attended to Erickson's needs. The cook prepared special food for him and he was given fruit juices and...