Thomas v. Humble Oil & Refining Company, 13340.

• Decision Date: 30 January 1970
• Docket Number: No. 13340.,13340.
• Citation: 420 F.2d 793
• Parties: Curtis Lee THOMAS, Appellant, v. HUMBLE OIL & REFINING COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

420 F.2d 793 (1970)

Curtis Lee THOMAS, Appellant, v. HUMBLE OIL & REFINING COMPANY, Appellee.

No. 13340.

United States Court of Appeals Fourth Circuit.

Argued December 5, 1969.

Decided January 30, 1970.

Ralph Rabinowitz, Norfolk, Va., for appellant.

Guilford D. Ware, Norfolk, Va. (Francis N. Crenshaw, and Crenshaw, Ware & Johnson, Norfolk, Va., on brief), for appellee.

Before BRYAN, WINTER and BUTZNER, Circuit Judges.

ALBERT V. BRYAN, Circuit Judge:

For general maritime maintenance seaman Curtis Lee Thomas sued his ship's owner, Humble Oil & Refining Company. The District Court, 292 F. Supp. 260 (EDVa.1968), dismissed the libel on the finding that he had, in effect, been paid in full. We agree.

There was no question of Thomas' entitlement to maintenance. Ever since the ancient laws of Rhodes, Oleron and Wisby, it seems for every day a seaman is disabled and not on the ship or in the hospital, and until he has gained maximum medical cure, his right to maintenance has been an obligation of the owner and the ship. Aguilar v. Standard Oil Co., 318 U.S. 724, 727, 63 S.Ct. 930, 87 L.Ed. 1107 (1943).

Thomas had shipped for coastwise and nearby foreign service on Humble's vessels since 1950 until his retirement in 1967. His right wrist was injured in 1957 in a fall while swabbing deck on a tanker of the defendant. In 1963 aboard the SS Esso Washington, the pain and swelling returned in the wrist, and when the voyage terminated in Boston about December 23, 1963, Thomas left the ship to obtain medical attention.

Instead of the United States Public Health facilities at Boston, he reported at the Marine Hospital in Norfolk, Virginia. Listed there on December 25, 1963 as an out-patient, unfit for duty, he continued so rated until March 10, 1964. The next day he was admitted to the hospital as an in-patient receiving treatment until March 31, 1964, when he resumed out-patient status until declared ready for duty August 13, 1964.

Thereupon he signed on Humble's SS Esso Baltimore as an oiler, serving throughout the journey to her ad port, New York, on September 30, 1964. On October 1, 1964 Thomas again became and remained an out-patient until he qualified for duty October 8, 1964.

Thomas' suit here is for each of the days he was an out-patient. The maintenance daily rate, agreed, was $8.00. Indisputably, at least an equivalent sum, and usually more, was paid him for all of these days. However, Thomas contends that this remuneration does not qualify as maintenance.

No union, but rather a voluntary organization designated as the Esso Seamen's Association, was certified by the National Labor Relations Board in Humble's operation as the representative of unlicensed personnel, such as Thomas. A collective bargaining agreement was in force between the Association and the company. It recognized Humble's private disability plan for which no contribution was exacted from the employees. The crews' articles embraced its terms and were signed by Thomas each time he sailed on a Humble vessel.

The bargaining agreement stipulates, among other things, that:

"Maintenance shall not be paid concurrently with payments under the Disability Benefit Plan, if applicable, unless the maintenance due is in excess of plan payments, in which event the $8.00 rate as herein provided will apply. In such a case a differential will be paid which, when added to plan payments,

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