Warren v. United States, 1246.

• Citation: 75 F. Supp. 836
• Decision Date: 10 February 1948
• Docket Number: No. 1246.,1246.
• Parties: WARREN v. UNITED STATES.
• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

75 F. Supp. 836

WARREN v. UNITED STATES.

No. 1246.

District Court, D. Massachusetts.

February 10, 1948.

Harry Kisloff, of Boston, Mass, for libelant.

William T. McCarthy, U. S. Atty., Gerald McCarthy, and Edward O. Gourdin, Asst. U. S. Attys., and Thomas H. Walsh, all of Boston, Mass., for respondent.

WYZANSKI, District Judge.

The question at issue is for how long shall the operator of a vessel be obliged to pay maintenance and wages to a seaman who fell sick during the voyage but who recovered in a foreign port before the end of the voyage?

Libellant, a married man, joined the vessel in Boston as its second mate on December 1, 1944, for a voyage beginning December 8, 1944, which came to an end March 29, 1945. His maintenance was worth $5.25 a day, and his wages averaged $13.43 a day. On December 30, 1944, having been paid to that date, he left the vessel in Cowes, England, on account of sickness incurred on the voyage. By February 1, 1945, he was well and looking for a job in England. It does not appear that any job was available. Libellant was then brought at respondent's expense to Boston, the port from which he had originally sailed. He arrived there February 25, 1945; and it does not appear that he looked for a job thereafter. He claims that he was ill on his arrival but, particularly in the light of the fact that libellant did not report in Boston to a hospital or doctor, I find that he was well and able to work.

The question is whether he is entitled to maintenance and wages from December 31 to (a) February 1, the date he was well, or (b) February 25, the day he returned to Boston, or (c) March 29, the day that the vessel ended its voyage.

There are loose statements in the books that a seaman who falls sick during a voyage is entitled to wages at least until the end of the voyage The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 47 L.Ed. 760 and to maintenance for a reasonable time thereafter. Calmar S. S. Corporation v. Taylor, 303 U.S. 525, 530, 58 S.Ct. 651, 82 L.Ed. 993. Compare Pacific S. S. Co. v. Peterson, 278 U.S. 130, 134, 49 S.Ct. 75, 73 L.Ed. 220; Muise v. Abbott, 1 Cir., 160 F.2d 590, 592. But those statements were not made in cases where the seaman had recovered before the end of the voyage, and therefore are not decisive of the issue here.

The right to recover wages, maintenance and cure arises ex contractu. The obligation of the owner-operator is "a material ingredient in the compensation for the labor and services of the seamen". Harden v. Gordon, 11 Fed.Cas. pages 480, 481, No. 6,047, 2 Mason 541. The period of time which that obligation covers requires some discrimination of statement. So far as concerns wages, the obligation lasts for the shorter of the two following periods: (1) until the end of the voyage Jones v. Waterman S. S. Corporation, 3 Cir., 155 F.2d 992, 995 or (2) until the time when the seaman is not only well but able to find suitable employment. So far as concerns maintenance, the obligation lasts for the shorter of the two following periods: (1) until a reasonable time for medical attention, even though that time is beyond the end of the voyage Calmar S.S. Corporation v. Taylor, 303 U.S. 525, 58 S.Ct. 651, 82 L.Ed. 993, or (2), until the time when the seaman is not only well but able to find suitable employment.

No explanation is required of the two clauses numbered (1) in the last paragraph. However, a word needs to be said about the obligation stated in the two clauses numbered (2). The obligation may run beyond the time the seaman is physically well and until he can get suitable employment. The seaman's contract assures him (subject to certain conditions not here material) of protection during the period of actual illness and the subsequent period of looking for a suitable job — provided, of course, in the case of wages that those periods do not extend beyond the end of the voyage and in the case of maintenance that those periods do not extend beyond a reasonable time for medical treatment. The reason is that the seaman ought not to be left in the lurch during the period of time that he has been assured a job. This is important in all kinds of employment where the employee has a promise of a job for a fixed period. It is particularly important for a seaman who may be stranded in a foreign port. And it is consistent with the rationale of the contract that the seaman's right may extend beyond the point when he is completely well. It may include a space of time when he is looking for suitable employment or when he is returning home to look for and secure such employment.

It will be observed that the form of statement used in the preceding paragraph implies that the amount of recovery of a seaman who has been sick and recuperates is measured by the usual principles of contract law with respect to mitigation of damages. In short, since the seaman's right is a species of the generic right of obligees of employment contracts, he like other promisees of employment contracts is entitled to recover only such losses of wages, board and lodging as in the exercise of due diligence he could not avoid. If during the contract period, that is during the term of the voyage, he obtains or by diligence could have obtained other suitable employment, his damages are diminished by the amount which he receives or should receive in such employment. Restatement, Contracts § 336 comment (d); Restatement, Torts, § 455 comment (d); Williston, Contracts...