Vitco v. Joncich

• Decision Date: 29 April 1955
• Docket Number: No. 16187.,16187.
• Citation: 130 F. Supp. 945
• Court: U.S. District Court — Southern District of California
• Parties: Anthony VITCO, Libelant, v. Marion JONCICH, Joseph C. Mardesich, Antonia Dogdanovich, Respondents.

130 F. Supp. 945

Anthony VITCO, Libelant, v. Marion JONCICH, Joseph C. Mardesich, Antonia Dogdanovich, Respondents.

No. 16187.

United States District Court S. D. California, Central Division.

April 29, 1955.

COPYRIGHT MATERIAL OMITTED

Margolis, McTernan & Branton, Los Angeles, Cal., for libelant.

Robert Sikes, Los Angeles, Cal., for respondents.

MATHES, District Judge.

The admiralty jurisdiction of this court is here invoked by a libel in personam filed by a tuna fisherman, without prepayment of fees or costs and without security therefor, 28 U.S.C.A. § 1916, to recover maintenance and cure and wages to the end of the period of his employment. Adm.Rule 13, 28 U.S. C.A.; Sheppard v. Taylor, 1831, 5 Pet. 675, 711, 30 U.S. 675, 711, 8 L.Ed. 269.

The facts, as disclosed upon the trial, are briefly these. Respondents are the owners of the commercial fishing vessel Pioneer. In the fall of 1951 libelant, who had shipped over many years from Pacific ports as fisherman-cook, was approached by respondent Joncich to "fish tuna" with the Pioneer during the ensuing "season."

Libelant had previously fished tuna with respondents aboard the Pioneer, and orally accepted respondent's invitation for the 1952 season. He then joined with other members of the crew, as is the custom, in spending a month or so without compensation preparing vessel and nets for the season's venture.

The vessel thus made ready for the first trip, on December 27, 1951, libelant and other members of the crew signed shipping articles "between the Master and seamen, or mariners, of the American Oil Screw "Pioneer" of which Joseph C. Mardesich is the present Master, or whoever shall go for Master, now bound from the Port of Los Angeles, California, to Mexican Waters and such other ports and places in any part of the world as the Master may direct, and back to a final port of discharge in the United States, for a term of time not exceeding 12 calendar months." See: 46 U.S.C.A. § 713; Id. §§ 564-568; Id. §§ 572-575.

In late January, 1952, while the Pioneer was in Mexican waters on the first fishing trip of the season, libelant suffered a series of heart attacks, as a result of which he was forced to leave the vessel at Manzanillo, Mexico, on January 29, 1952, and return home to San Pedro, California, totally disabled for further service during the period of his employment.

Libelant went to the marine hospital of the United States Public Health Service in San Pedro on March 7, 1952, where he received treatment and an electrocardiogram was taken. At the recommendation of respondent Joncich he then placed himself under the care of a private physician, with whom he incurred a bill of $135; and ultimately went to a physician recommended by his proctors, where he incurred for his own account a further bill of $348. In October, 1953, this latter physician determined that a maximum cure for libelant's heart condition had been reached during August, 1954.

Libelant urges that he is entitled to recover (1) his share of the tuna catch by the Pioneer for the entire 1952 season, as his wages for the period of his seaman's contract of maritime employment; (2) the sum of $6 per day as maintenance from the time his illness compelled him to leave the vessel on January 29, 1952 until October, 1954, when it was determined that his heart condition had been cured to the extent practicable; and (3) all medical expense incurred for his private account during this period of cure.

Respondents, per contra, contend: (1) that since libelant became totally disabled on the first trip of the season, he is entitled to wages — a share of the catch — for only the single trip on which he fell ill; (2) that since the date on which the seaman in fact reaches maximum cure is controlling, libelant is not entitled to maintenance beyond August, 1954, even though the fact he had reached maximum cure was not determined until October, 1954; and (3) that since libelant declined free medical treatment readily available to him at the marine hospital of the United States Public Health Service, he is not entitled to recover the cost of cure which he privately secured for his own account.

Considering these stated contentions in their inverse order, it is well to recall at the outset that the obligation of a shipowner to furnish cure, and maintenance as well, to a seaman who falls ill or is injured while in the service of the vessel is imposed by maritime law as an incident to the contract of employment. Aguilar v. Standard Oil Co., 1943, 318 U.S. 724, 730, 63 S.Ct. 930, 87 L.Ed. 1107; Calmar S. S. Corp. v. Taylor, 1938, 303 U.S. 525, 527, 58 S.Ct. 651, 82 L.Ed. 993; Cortes v. Baltimore Insular Line, 1932, 287 U.S. 367, 371, 53 S.Ct. 173, 77 L.Ed. 368; Pacific S. S. Co. v. Peterson, 1928, 278 U. S. 130, 138, 49 S.Ct. 75, 73 L.Ed. 220; The Iroquois, 1904, 194 U.S. 240, 241, 24 S.Ct. 640, 48 L.Ed. 955; The Osceola, 1903, 189 U.S. 158, 172, 23 S.Ct. 483, 47 L.Ed. 760; Harden v. Gordon, C.C.D.Me. 1823, 11 Fed.Cas. pp. 480, 482, No. 6,047.

The correlative maritime right of the seaman to receive maintenance and cure exists regardless of whether the compensation contracted for consists in specific money wages or, as here, in a lay or share of "the catch" — a share of the earnings of the vessel. The Betsy Ross, 9 Cir., 1944, 145 F.2d 688, 689; Luksich v. Misetich, 9 Cir., 140 F.2d 812, 814, certiorari denied, 1944, 322 U.S. 761, 64 S.Ct. 1280, 88 L.Ed. 1589; The Josephine & Mary, 1 Cir., 1941, 120 F. 2d 459, 461; Enochasson v. Freeport Sulphur Co., D.C.S.D.Tex.1925, 7 F.2d 674; The Atlantic, D.C.S.D.N.Y.1849, 2 Fed.Cas. pp. 121, 130, No. 620; Reed v. Canfield, C.C.D.Mass.1832, 20 Fed. Cas. pp. 426, 429, No. 11,641.

As to the quantum of the shipowner's duty, Mr. Chief Justice Stone said in Calmar S. S. Corp. v. Taylor, supra: "The maintenance exacted is comparable to that to which the seaman is entitled while at sea * * *, and `cure' is care, including nursing and medical attention during such period as the duty continues." 303 U.S. at page 528, 58 S.Ct. at page 653.

And "courts take cognizance of the marine hospital service where seamen may be treated at minimum expense, in some cases without expense, and they limit recovery to the expense of such maintenance and cure as is not at the disposal of the seaman through recourse to that service." Id., 303 U.S. at page 531, 58 S.Ct. at page 654; see Aguilar v. Standard Oil Co., supra, 318 U.S. at page 729, 63 S.Ct. 930.

Accordingly, since libelant abstained, for reasons of his own, from availing himself of the services and facilities of the United States Public Health Service in his home town of San Pedro, whereat it appears substantially the same services as were rendered by the private physicians were readily available to him without charge, libelant cannot recover the costs of privately-obtained treatment as part of the cure which the law awards as an incident of the seaman's employment. See: Bailey v. City of New York, 2 Cir., 1946, 153 F. 2d 427; Benton v. United Towing Co., D.C.N.D.Cal.1954, 120 F.Supp. 638, 641; cf. Luth v. Palmer Shipping Co., 3 Cir., 210 F.2d 224, certiorari denied, 1954, 347 U.S. 976, 74 S.Ct. 788, 98 L.Ed. 1116, and comment by Roscoe Pound, 14 NACCA L.J. 203 (Nov. 1954); Repsholdt v. United States, 7 Cir., 205 F.2d 852, 856-857, certiorari denied, 1952, 346 U.S. 901, 74 S.Ct. 226, 98 L.Ed. 401; Van Camp Sea Food Co. v. Nordyke, 9 Cir., 140 F.2d 902, 906-907, certiorari denied, 1944, 322 U.S. 760, 64 S.Ct. 1278, 88 L.Ed. 1587.

What has just been said, however, denies recovery only as to the $348 which libelant incurred for his own account with the physician to whom he was referred by his proctors. As to the bill of $135 incurred with the physician to whom libelant was referred by respondent Joncich, it is found that respondents authorized the private service and in effect consented to bear the physician's reasonable charge. See: McManus v. Marine Transport Lines, 2 Cir., 1945, 149 F.2d 969; June v. Pan-American, etc., Co., 5 Cir., 1928, 25 F.2d 457; The Bouker No. 2, 2 Cir., 241 F. 831, 835-836, certiorari denied, 1917, 245 U.S. 647, 38 S.Ct. 9, 62 L.Ed. 529; cf. United States v. Loyola, 9 Cir., 1947, 161 F.2d 126, 128.

The shipowner's obligation to furnish maintenance is coextensive in time with his duty to furnish cure, Skolar v. Lehigh Valley R. Co., 2 Cir., 1932, 60 F.2d 893, 895; cf. The J. F. Card, D.C.E.D.Mich.1890, 43 F. 92, and neither obligation is discharged until the earliest time when it is reasonably and in good faith determined by those charged with the seaman's care and treatment that the maximum cure reasonably possible has been effected. Farrell v. United States, 1949, 336 U.S. 511, 517-519, 69 S.Ct. 707, 93 L.Ed. 850; cf. Calmar S. S. Corp. v. Taylor, supra, 303 U.S. at pages 528-530, 58 S.Ct. 651; The Osceola, supra, 189 U.S. at page 175, 23 S.Ct. 483; Desmond v. United States, 2 Cir., 1954, 217 F.2d 948, certiorari denied 349 U.S. 911, 75 S.Ct. 600; Reed v. Canfield, supra, 20 Fed.Cas. at page 429, No. 11,641.

It follows that the libelant at bar is entitled to maintenance from respondents at the agreed rate of $6 per day from the time illness compelled him to leave the vessel on January 29, 1952, until October 15, 1953, when — it is now found — his physician reasonably and in good faith determined for the first time that further treatment would not advance cure.

Along with the obligation to provide maintenance and cure, the maritime law attaches to the seaman's contract of employment the right to receive his agreed wages throughout the period of employment, cf. The City of Alexandria, D.C.S.D.N.Y.1883, 17 F. 390, 396; The Osceola, supra, 189 U.S. at page 175, 23 S.Ct. 483; which historically has meant "to the end of the voyage", since "the general custom in ships, other than the coastwise trade, is to sign on for a voyage rather than for a fixed period." Farrell v. United States, supra, 336 U.S. at...