The Bouker No. 2

• Citation: 241 F. 831
• Decision Date: 20 March 1917
• Docket Number: 170.
• Parties: THE BOUKER NO. 2.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

241 F. 831

THE BOUKER NO. 2.

No. 170.

United States Court of Appeals, Second Circuit.

March 20, 1917

For a few days before April 16, 1914, Jones felt unwell, and on that day declared himself too sick to work, left the boat at Communipaw, went home by train, and called a doctor, who found him with a fever, and on the 20th declared the disease to be pneumonia. Libelant remained at home, and quite ill until May 23d, when he was taken to a private room at the Muhlenberg Hospital in Plainfield, where he remained until July 19th, during which time he endured the operation for relief of the pleural cavity; i.e., removal of part of a rib for drainage purposes. He then returned home, was treated medically until November, and did not feel able to resume work until the following March-- a period of 11 months. Soon after leaving the tug he received his wages in full, and a gratuity of $25, from the claimant. No request or suggestion was made by libelant or any one else that he go to the Marine Hospital, a course undoubtedly open to him, and owing to the proximity of that institution far easier and attended with less exposure than traveling by rail from Communipaw to his home.

On August 27, 1915, this libel was filed (in forma pauperis) claiming $800 for maintenance and cure and additional damages or indemnity, upon allegations that libelant's pneumonia was caused by the unwholesome, if not unseaworthy, condition of the Bouker No. 2, in respect of the sleeping quarters occupied by libelant and others. The libel was not sustained so far as any wrong doing or neglect of the owners or master was concerned, and libelant did not appeal. For maintenance and cure the court decreed payment of $1,091.90, made up as follows:

(1) Charges of Muhlenberg Hospital for (say) two months............	$ 284.90
(2) Bill of surgeon for operation	350.00
(3) Charges of physician privately employed by libelant	102.00
(4) Amount paid a woman hired to assist libelant's wife in housework, while the wife was busied in attending on her	85.00
husband
(5) "Maintenance" at the agreed rate of $1 per day for 11 months, less two months spent in hospital.............................	270.00
	---------
	$1,091.90

Of these items Nos. 1, 3, and 4 represent actual disbursements by libelant, 5 is an estimate by agreement, and 2 has never been paid, nor has any effort to collect been made (so far as appears), otherwise than by this action.

The libelant, Jones, is a marine engineer, and in April, 1914, was, and had been for about two months, in charge of the engines of the Bouker No. 2, a tug engaged principally in the business of towing scows laden with city refuse out to the dumping grounds beyond Scotland Lightship. In good weather, two trips a day were accomplished. In no other sense could the tug be said to make voyages. Jones was paid by the week, and was entitled to food and quarters at the tug's expense, as well as money wages. He remained on board a week or more at a time, and then went home for brief periods, to his house not far from Plainfield, N.J., where he lived with his wife. His earnings in money amounted to about $100 per month.

(1) Charges of Muhlenberg Hospital for (say) two months . . .	$284.90
(2) Bill of surgeon for operation . . .	350.00
(3) Charges of physician privately employed by libelant . . .	102.00
(4) Amount paid a woman hired to assist libelant's wife in housework, while the wife was busied in attending on her husband	85.00
(5) 'Maintenance' at the agreed rate of $1 per day for 11 months, less two months spent in hospital . . .	270.00

From this decree claimant appealed, assigning for error in substance (1) that the tug was held for any expense of maintenance and cure; (2) that any liability therefor had been upheld after termination of liability for libelant's wages; (3) that any recovery had been granted, when libelant might have gone to the Marine Hospital, and did not choose so to do; and (4) that under any circumstances the award was excessive.

William J. Martin, George V. A. McCloskey, and Foley & Martin, all of New York City, for appellant.

Silas B. Axtell and Frederick R. Graves, both of New York City, for appellee.

Before COXE, ROGERS, and HOUGH, Circuit Judges.

HOUGH Circuit Judge (after stating the facts as above).

The problem presented by this appeal is to square the rights of parties with so much of the decision in The Osceola as declared that: 'The vessel and her owners are liable, in case a seaman falls sick, or is wounded, in the service of the ship, to the extent of his maintenance and cure, and to his wages, at least so long as the voyage is continued.' 189 U.S. 175, 23 Sup.Ct. 487 (47 L.Ed. 760).

The last phrase of this quotation deliberately (doubtless) left undecided the query, not involved in the case then at bar, whether a seaman's right to maintenance and cure depended upon and ceased with, his right to wages. Upon this point opinion, even since The Osceola, has perhaps varied. Cf. The Nyack, 199 F. 383, 118 C.C.A. 67 (C.C.A. 7th), and The Mars, 149 F. 729, 79 C.C.A. 435 (C.C.A. 3d).

This court has several times adverted to the general rule, but always without reference to the time when the seaman's privilege ends. Cornell Steamboat Co. v. Fallon, 179 F. 293, 102 C.C.A. 345; The New York, 204 F. 764, 123 C.C.A. 214; The Transfer No. 12, 221 F. 409, 137 C.C.A. 207. Numerous as are the reported litigations on this subject, we find, therefore, neither controlling authority, nor any complete consensus of opinion, as to the point left open in The Osceola, nor has our attention been directed to any decisions dealing with the cost or reasonable expense of attempted cure; neither has the length of time during which the seaman's right persists (in the event of chronic illness or long convalescence) received much judicial treatment.

Before considering these questions, now acutely presented upon a meager and inadequate record, we may state our opinion that a seaman 'falls sick, or is wounded, in the service of the ship,' if such misfortune attacks him while he is attached to the ship as part of her crew. It is not necessary that the wound or illness should be directly caused by some proven act of labor; it is enough that he was, when incapacitated, subject to the call of duty as a seaman, and earning wages as such. ^[1] We further hold that an engineer, even on a harbor tugboat, is a seaman, within the meaning of the rule. If authority be needed for these propositions, it is found in the citations already made; indeed, there has been at bar no denial of their truth

The courts in this circuit have several times considered cases of seamen demanding cure after voyage ended, and consequent termination of the wage relation. Judge Betts' earlier decisions (Nevitt v. Clarke, Olc. 316; The Atlantic, 1 Abb.Adm. 451; Ringgold v. Crocker, 1 Abb.Adm. 344) were reviewed by Judge Addison Brown in The City of Alexandria (D.C.) 17 F. 390, and The W. L. white (D.C.) 25 F. 503, with due consideration of Reed v. Canfield, 1 Sum. 195, Fed. Cas. No. 11,641, out of which opinion of Justice Story this subdivision of the law has undoubtedly grown so far as the American admiralty is concerned. Since The W. L. White it has been the rule of such of the District Courts in this circuit as have had the question presented to hold that a seaman's right to maintenance and cure persisted for the duration of the voyage and a reasonable time thereafter, a doctrine largely based upon the words of Betts, J. (in commenting on Justice Story's decisions), that: 'When a course of medical treatment necessary and appropriate to the cure of a seaman has been commenced and is in course of favorable termination, there would be an impressive propriety in holding the ship chargeable with its completion, at least, for a reasonable time after the voyage is ended, or the mariner is at home. ' The Atlantic, supra.

This view was enforced by Benedict, J., in The Wensleydale (D.C.) 41 F. 829, which is one of the very few cases of sickness, as distinct from violent injury, to be found...