Island, where his injury was diagnosed as a fracture of the thumb of the left hand. The libellant was then paid off with the rest of the crew, the voyage having been completed. In compliance with his application, he was given employment on the ship as a watchman for several days, when he was discharged for intoxication and threatening a fellow-employee.
It is unnecessary further to discuss the extent and duration of the libellant's injuries, since I find as a fact that the injury to the libellant was the result of his own willful misconduct and with that finding counsel for the libellant is in agreement, as before mentioned.
I also find as a fact that the respondent was unaware of the extent of the libellant's injuries, and that the respondent gave adequate attention to the libellant during the course of the voyage to New York under the circumstances. It was not until after the completion of the voyage that it was learned that the libellant's thumb was fractured.
In the Mexoil, Leonard June, Appellant v. Pan-American Petroleum & Transport Company, Appellee, 5 Cir., 1928, 25 F.2d 457, 458, 1928 A.M.C. 829, the Court said: "With regard to the claim for maintenance and cure, it is reasonably certain that appellant did not request any further treatment than he received while on the vessel, and, of course, he received his maintenance and his wages for that period; when he left the ship at New Orleans, the captain offered him a marine hospital certificate which would have secured him the best of care and medical attention. In tendering the certificate, the master complied with any obligation the vessel had as to cure, and there is no doubt that appellant declined it." (Italics supplied.)
See also The Birkenhead, D.C., 51 F.2d 116; also The Van der Duyn, 2 Cir., 261 F. 887, 890. In that case a seaman received an injury, while the ship was at sea, which was attended with considerable swelling. Later, when the ship arrived in port, an X-ray disclosed that the arm had been fractured. The court there held that while the ship's officers had made an error of diagnosis, that they had exercised the reasonable care which was required. "We do not think that error of judgment of the officers of the ship, or the surgeon who was employed, and the lapse of time before the respondent received competent medical aid, are sufficient upon which to base liability."
I also find as a fact that the respondent did not compel the libellant to work during the course of that voyage, and that such work as the libellant engaged in, including the overtime work for which he received extra compensation, was voluntary on his part, and further that his work did not aggravate his injury.
I therefore find for the respondent upon the issue of negligence.
There remains the action for maintenance and cure. Since the libellant's injury was due to his own willful misconduct, and since there was no negligence on the part of the respondent, there can be no recovery for maintenance and cure by the libellant. See The Osceola, 189 U.S. 158, 23 S. Ct. 483, 47 L. Ed. 760; The Bouker No. 2, 2 Cir., 241 F. 831, certiorari denied, 245 U.S. 647, 38 S. Ct. 9, 62 L. Ed. 529; The City of Alexandria, D.C., 17 F. 390; The Alector, D.C., 263 F. 1007.
It appeared from the testimony that during the day and preceding the midnight argument between the libellant and Armistead that the libellant had been ashore and had had several drinks. There would be no justification for a finding that the libellant was drunk at the time of his argument with his fellow-seaman. Even if he were drunk he could not recover.
In Barlow v. Pan Atlantic S.S. Corporation et al., 2 Cir., 101 F.2d 697, 698, a seaman fell down a ladder leading to the well dock of the vessel because he was drunk. It was held that he could not recover maintenance and cure. "The general rule that a vessel and her owner are liable for maintenance and cure, if a seaman falls sick or is wounded in the service of the ship, is subject to a well-recognized exception, dating back to some of the earliest maritime codes, in case his disease or injury arises from his own vices or willful misconduct. * * * When it is clear that a seaman's injuries occurred solely because of his intoxication, we think they are rightly held to be occasioned by his own misconduct and that the shipowner is under no duty to provide maintenance and cure."
For the reasons above stated, judgment may be entered for the defendant in the action for negligence and for maintenance and cure.
© 1992-2004 VersusLaw Inc.