Vaughan v. Atkinson, 480.
| Decision Date | 05 November 1959 |
| Docket Number | No. 480.,480. |
| Citation | 200 F. Supp. 802 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | Clifford VAUGHAN, Libellant-Petitioner, v. N. J. ATKINSON, a non-resident, individually, and as Master; National Shipping & Trading Corporation and American Waterways Corporation, both foreign corporations, as owners and/or operators of the American SS "National Liberty", Respondents. |
Burt M. Morewitz, Newport News, Va., for libellant.
Vandeventer, Black, Meredith & Martin (Walter B. Martin, Jr.), Norfolk, Va., for respondents.
The libellant, an American seaman, served on the respondent's vessel, the American Steamship "NATIONAL LIBERTY" from November 26, 1956, to March 2, 1957, when he was discharged from said vessel at Norfolk, Virginia, upon the termination of a voyage. On March 8, 1957, libellant reported to the United States Public Health Service Hospital at Norfolk, Virginia, for examination and was admitted to that institution as an in-patient on March 18, 1957, for treatment for suspected tuberculosis. Libellant was discharged to an outpatient status on June 6, 1957, and remained an out-patient until August 25, 1959, when he was notified that he was discharged fit for duty as of August 19, 1959.
The evidence in this case justifies a finding that the respondent was derelict in its duty to pay maintenance. The libellant had forwarded to the claims and insurance manager for National Shipping and Trading Corporation an abstract of his clinical record indicating that libellant was admitted to the United Sates Public Health Service Hospital at Norfolk, Virginia, on March 18, 1957, and was discharged to an out-patient status on June 6, 1957. The records of the hospital reflect a strong probability of active tuberculosis. The only investigation conducted by the respondent was to interrogate the master and chief engineer, who stated that the libellant had never complained of any illness during his four months' service as a wiper on the SS "NATIONAL LIBERTY". It is admitted, however, that the master furnished the libellant a certificate to enter the Public Health Service Hospital upon libellant's discharge on March 2, 1957. Respondent made no effort to further investigate the status of libellant's claim, and apparently did not even bother to admit or deny the validity of his claim for maintenance. Such action on the part of the respondent would give rise to a claim for damages under Cortes v. Baltimore Insular Line, 287 U.S. 367, 371, 53 S.Ct. 173, 77 L.Ed. 368, providing that the failure to furnish maintenance has caused or aggravated an illness. In the present case, there is no evidence before the Court which would justify a finding that the failure to furnish maintenance caused or aggravated the illness. I have examined the authorities submitted by proctor for the libellant, including The Troy, D.C., 121 F. 901, 906; Ran v. Atlantic Refining Co., D.C., 87 F.Supp. 853; and Murphy v. American Barge Line Co., 3 Cir., 169 F.2d 61, 64. While there is some statement in The Troy which could possibly be construed as an allowance of damages for failure to pay maintenance, it is clear that such allowance was limited to living expenses and some compensation for the suffering which libellant endured by reason of not having the care and attention called for under the circumstances of the case. Under the evidence before the Court at this time it appears that libellant actually earned more during his out-patient status than he had earned before signing on the vessel. There is no indication of any physical or mental suffering and, in the absence of provable damages, no allowance can be made to the libellant for this cause of action.
The evidence does show, and the Court finds that libellant was required to pay one-half of the amount recovered by way of maintenance to his proctor. This is undoubtedly a diminution of the total amount which should have been paid to libellant, but this Court knows of no authority which would justify the reimbursement of counsel fees through the guise of an allowance for damages incident to the failure to pay maintenance.
For the foregoing reasons, the claim for damages for failure to pay maintenance will be dismissed.
At the request of libellant, the Court granted a hearing on an application for interlocutory decree to require the respondent to pay the maintenance alleged to be due said libellant. This hearing was held on February 25, 1959, and on May 12, 1959, the Court entered an interlocutory decree granting the libellant maintenance at the rate of $8.00 per day as specified in his union contract for the period beginning June 6, 1957 (the date of his discharge from the hospital as an...
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Vaughan v. Atkinson, 92-6075
...while disallowing the claim for damages, granted maintenance, less any sums earned by the libellant during the period in question. 200 F.Supp. 802. The Court of Appeals affirmed, Chief Judge Sobeloff dissenting. 291 F.2d 813. The case is here on a writ of certiorari. 368 U.S. 888, 82 S.Ct. ......
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Stevens v. McGinnis, Inc.
...did not recover maintenance and cure until, after a trial, the district court ordered the shipowner to pay it. Vaughan v. Atkinson, 200 F.Supp. 802, 803 (E.D.Va.1960). The court, however, denied the seaman's claim for attorney's fees. Id. at 804. After the Fourth Circuit affirmed the judgme......
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Roberson v. S/S AMERICAN BUILDER
...rate of 6% per annum computed weekly, but not compounded. Perez v. Suwanee Steamship Co., (2 Cir., 1957) 239 F.2d 180; Vaughan v. Atkinson (E.D.Va., 1959) 200 F.Supp. 802, aff'd., 4 Cir., 291 F.2d 813, reversed, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d This brings us to the final point. Has th......