Vandinter v. AMERICAN STEAMSHIP COMPANY, Civ-72-378.

• Decision Date: 30 January 1975
• Docket Number: No. Civ-72-378.,Civ-72-378.
• Citation: 387 F. Supp. 989
• Parties: Robert J. VANDINTER, Plaintiff, v. AMERICAN STEAMSHIP COMPANY, Defendant.
• Court: U.S. District Court — Western District of New York

387 F. Supp. 989

Robert J. VANDINTER, Plaintiff, v. AMERICAN STEAMSHIP COMPANY, Defendant.

No. Civ-72-378.

United States District Court, W. D. New York.

January 30, 1975.

Harrison, Gruber & Gaughan, Buffalo, N. Y., for plaintiff; Fenton F. Harrison, Buffalo, N. Y., of counsel.

Cadwalader, Wickersham & Taft, New York City, William S. Busch, New York City, of counsel, Heffernan, Sweet & Murphy, New York City, James P. Heffernan, Buffalo, N. Y., of counsel, for defendant.

DECISIONAL MEMORANDUM

ELFVIN, District Judge.

This action was brought to recover for personal injuries allegedly brought about by the negligence of the defendant under the Jones Act and/or by the unseaworthiness of the defendant's boat. Joined with said cause or causes of action was one for maintenance and cure allegedly due the plaintiff while he was disabled by said injuries.

The parties have stipulated that the Court himself should decide the amount, if any, of maintenance to which the plaintiff may be entitled. (The plaintiff withdrew his claim for cure inasmuch as the whole of the past cost of the same has been paid by the United States Public Health Service.)

The evidence showed that the accident was brought about, in part, by contributory negligence on the part of the plaintiff. It is well settled, however, that contributory negligence is no bar to a seaman's right to recover for maintenance in the absence of willful misbehavior or willful misconduct, such as willful disobedience of orders or intoxication. Upon considering all of the evidence, the Court finds that the defendant has failed to carry its burden of proving that the plaintiff was guilty of such willful disobedience of orders as would bar maintenance and, while there was a clear showing that the plaintiff had imbibed alcoholic beverages while on shore leave shortly before the accident it also was clearly demonstrated that he was not drunk or intoxicated. See, Aguilar v. Standard Oil Co., 318 U.S. 724, 63 S.Ct. 930, 87 L.Ed. 1107 (1943).

The parties have stipulated that, if any sum is found to be due the plaintiff for maintenance, it should be at the rate of $8.00 for each day. The Court has determined that the plaintiff was entitled to maintenance for a total of 76 days that is, from October 16, 1971 (the date of the injury) until February 26, 1972 (the date when the doctors at the Public Health Services Hospital in New Mexico pronounced him fit for duty and issued a slip to that effect), less the time that the plaintiff was a patient in Public Health Hospitals in Green Bay, Wisconsin and Staten Island, New York. He had by the latter date attained the maximum cure. While the finding by the New Mexico hospital on February 26,...