Roberts v. Argentina
| Decision Date | 26 April 1966 |
| Docket Number | Docket 29499.,No. 332,332 |
| Citation | 359 F.2d 430 |
| Parties | Aloysius ROBERTS, Libellant-Appellant-Appellee, v. S.S. ARGENTINA and Moore-McCormack Lines, Inc., Respondents-Appellees-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
William M. Kimball, New York City (Burlingham, Underwood, Barron, Wright & White, New York City, on the brief), for respondents-appellees-appellants.
Sidney Zwerling, New York City (Zwerling & Zwerling, New York City, on the brief), for libellant-appellant-appellee.
Before LUMBARD, Chief Judge, and WATERMAN and ANDERSON, Circuit Judges.
Libellant commenced this action for maintenance and cure. The case came on before Judge Croake in the Southern District of New York who decided it on the basis of an agreed statement of facts. The libellant was awarded $320, but his claim for counsel fees was denied. Both parties have appealed. The libellant claims that he is entitled to counsel fees within the rule of Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962), and the respondents appeal from the award of maintenance and cure. We affirm in all respects.
After reviewing the brief record, we conclude that the award for maintenance and cure was properly allowed and it is affirmed. With regard to the allowance of attorney's fees, we think that Vaughan v. Atkinson, supra, should be read to allow recovery of counsel fees only where the employer is shown to have been "callous" or "recalcitrant" in refusing to pay maintenance and cure when demanded by a seaman. Although one or two district courts have awarded counsel fees under a very broad interpretation of Vaughan v. Atkinson, supra, see Jordan v. Norfolk Dredging Co., 223 F.Supp. 79 (E.D.Va.1963), the overwhelming majority of district courts have required a showing of callousness or recalcitrance in withholding maintenance and cure to support such an allowance. See, e. g., Pyles v. American Trading & Production Corp., 244 F.Supp. 685, at 687 (S.D.Tex. 1965); Connorton v. Harbor Towing Corp., 237 F.Supp. 63, at 68 (D.Md. 1964); Diaz v. Gulf Oil Corp., 237 F. Supp. 261, 266 (S.D.N.Y.1965); Diddlebock v. Alcoa Steamship Company, 234 F.Supp. 811, at 814 (E.D.Pa.1964); and Vaughan v. Atkinson, 206 F.Supp. 575, at 577 (E.D.Va.1962) (). We hold that the view of the majority is correct.
As there is nothing to indicate that Moore-McCormack was not acting in good faith in ...
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McMillan v. Tug Jane A. Bouchard
...terminating and refusing to reinstate McMillan's maintenance and cure. See Incandela, supra, 659 F.2d at 15 (citing Roberts v. S.S. Argentina, 359 F.2d 430 (2d Cir.1966)). Ordinarily the issue of callousness or recalcitrance is one for a jury. Id. However, in pure maintenance and cure cases......
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Hudspeth v. Atlantic & Gulf Stevedores, Inc.
...recovery of counsel fees only where the employer is shown to have been `callous' or `recalcitrant' in" his refusal. Roberts v. SS Argentina, 2d Cir. 1966, 359 F.2d 430; see in accord Diaz v. Gulf Oil Corp., S.D.N.Y.1965, 237 F.Supp. 261; Pyles v. American Trading and Production Corp., S.D.T......
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Springle v. Cottrell Engineering Corp.
...Vol. 1B, § 51, p. 4-81. The majority view appears to require a showing of callousness or recalcitrance. As stated in Roberts v. S.S. Argentina, 359 F.2d 430 (2nd Cir., 1966): "With regard to the allowance of attorney's fees, we think that Vaughan v. Atkinson, supra, should be read to allow ......
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