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Loverich v. Warner Co.

March 17, 1941

LOVERICH
v.
WARNER CO.



Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Harry E. Kalodner, Judge.

Author: Goodrich

Before MARIS, CLARK, and GOODRICH, Circuit Judges.

GOODRICH, Circuit Judge.

This is an action in admiralty to recover upon the obligation for maintenance and cure.*fn1 Each side has appealed; the libellant claims that the award was too limited; the respondent claims that no award at all should have been made.

The libellant, Frank B. Loverich, was in the employ of the respondent in 1925 and was the sole employee upon respondent's oil barge called "01". According to his testimony he began to suffer hoarseness following a fire on the barge in 1926, during the extinguishment of which he was exposed to smoke and weather. The condition of his throat became serious and the hoarseness more aggravated. In June, 1933 he began to suffer from dizzy spells. He was examined by the physician employed by the company who found libellant suffering from advanced arteriosclarosis, chronic laryngitis, aphonia and left incomplete inguinal hernia. The physician recommended to the company that the man was a poor risk to work, "especially around machinery or a boat, with extreme heat." Libellant was discharged on July 6, 1933. He was given a letter of recommendation setting forth his good character and long and faithful service and stating that he was obligaed to leave only because of illness. That fall he was hospitalized in New York and was discharged after two months stay. Then he was employed by the Reading Company for fourteen months. He was again hospitalized for a few days and shortly thereafter secured another position which continued for about fifteen months. During this period his condition gradually became worse and both his voice and breathing were affected. In 1939 he entered the Philadelphia General Hospital for treatment and was operated on for a throat condition which was diagnosed as cancer. Rubber tubes were inserted in his throat to permit him to breathe and X-ray treatment continued following the operation. This therapy has relieved his condition somewhat.

The problem presented by this litigation is what, if any, is the obligation of the employer under the maritime law of maintenance and cure which, of course, really means maintenance and care.*fn2 The duty to make provision for maintenance and cure is imposed by the law and is "annexed as an inseparable incident * * * " to the relation of the parties. Cortes v. Baltimore Insular Line, Inc., 1932, 287 U.S. 367, 372, 53 S. Ct. 173, 174, 77 L. Ed. 368. The nature and extent of this obligation owed to the seaman has recently been discussed by this court in Calmar S.S. Corp. v. Taylor, 3 Cir., 1937, 92 F.2d 84, and by the Supreme Court in the same case, 1938, 303 U.S. 525, 58 S. Ct. 651, 82 L. Ed. 993. It is clear that the right of such maintenance is not restricted to those cases where the seaman's employment is the cause of the illness. It is now clear, also, that the obligation may continue after the termination of the voyage in which an injury is sustained or an illness begins. Those points are definitely settled by the decisions in the Calmar litigation.

If Loverich acquired this malignancy in the throat while employed as a seaman for the respondent then the duty of maintenance and cure arises even though it was not caused by anything incidental to his work. He did not seek to establish that the exposure to smoke and weather caused the throat cancer, although there was some medical testimony to the effect that such exposure could be a factor if there was a predisposition to that disease. Likewise, there was testimony that with this type of malignancy the patient could be active and around until it really "took him off his feet". There is a history of chronic laryngitis, improved once by treatment, but gradually becoming worse over the course of years. The company's physician suspected syphilis or cancer at the time of Loverich's discharge by the respondent. It was not until the time of the operation in the Philadelphia General Hospital that a biopsy gave the basis for the definite diagnosis of cancer. The testimony is sufficient to support the conclusion that the plaintiff's illness arose during his employment by respondent, but not that it was caused by such employment.

Then arises the question of the extent of the respondent's obligation, leaving out of consideration, for the moment, the fact that after the libellant was dicharged by the respondent he worked for some time for two other employers. In the Calmar case the seaman was suffering from an incurable disease which was subject to amelioration by surgical treatment. The award approved in this court was a lumpsum to defray the cost of meeting both past needs and anticipated future needs, based on his life expectancy. The award of the lump sum was reversed for three reasons: (1) The amount and character of medical care required in the future cannot be measured by mortality tables; (2) marine hospital services cut down the expense of treatment for the seaman; (3) the duty to safeguard a seaman "from the danger of illness without succor,"*fn3 and to guard him against improvidence is not met by the payment of a lump sum to cover expenses for medical attendantce during life. The Court said that the limit of the duty, in the case where the incapacity is not caused by the employment, was its extent "beyond a fair time after the voyage in which to effect such improvement in the seaman's condition as reasonably may be expected to result from nursing, care, and medical treatment".*fn4 Under the decision in that case libellant here is entitled to an award for maintenance and cure for a reasonable period following the term of his employment unless payment by the respondent is relieved by the libellant's subsequent employment or laches.

What difference should it make in libellant's case because following the termination of his employment with respondent he worked successively for two other employers, assuming that during such period he was suffering from the disease originating during his employment by the respondent? Upon this point we find no help in the authorities. We believe, however, that while this is something of an extension of the liability imposed under the rule of the Calmar case, it is justified by the fundamental principles upon which the obligation for maintenance and cure is bottomed. It is to be noted that this man did not voluntarily leave the respondent's employment. He was dismissed on a recommendation of the company's physician who advised the company that he was a poor risk. The physician admitted on cross-examination that upon his examination of the libellant he thought he had syphilis or cancer from the chronic laryngitis.There is no evidence of syphilis. No examination was made to ascertain whether cancer was present and the man was turned out. If he was already suffering from cancer in one of its developing stages he could hardly look to subsequent employers for the performance of this obligation. We do not see how his own self-reliance in keeping going as long as he could should preclude his recovery against this respondent.

The last question is whether all, or any part of libellant's claim, is barred by laches. This case was started in October of 1939. The libellant was discharged from respondent's service in July of 1933. The District Court, applying the analogy of the Pennsylvania statute of limitations for contractual claims, allowed recovery only for a period beginning with the six year limitation date. We agree with the lower court's theory that the obligation is a continuous one. Therefore, the failure to recover for time prior to the six year period would not necessarily bar recovery for later time if the delay in bringing the suit did not, itself, constitute laches. The analogy to the statute of limitations, however, is only an analogy and not a rule. Pan-American Trading Co. v. Franquiz, D.C.S.D. Fla. 1925, 8 F.2d 500. "Laches consists of two elements, inexcusable delay in instituting suit and prejudice resulting to the defendant from such delay. Its existence depends upon the equities of the case, and not merely upon the lapse of time." United States v. Alex Dussel Iron Works, Inc., 5 Cir., 1929, 31 F.2d 535, 536. We do not find any inexcusable delay on the part of the libellant in this case. The company's physician had advised him that treatment of his ailment was no part of the company's business and that he should see his own physician. He secured other employment and kept going as long as he could. The action was brought soon after he had been operated upon and while he was still under treatment at the Philadelphia General Hospital. Nor do we see any prejudice which has resulted to the respondent from the delay. If it were necessary to go back to questions involving existence of negligence and the like in 1926 and witnesses had died or disappeared the problem might be different. But with a claim for indemnity out of the case this problem does not arise. Medical records are as available now as earlier. We do not believe that the doctrine of laches has any application to this case.

Coupled with this question respondent further urges that if libellant makes a claim arising after March 1927 his only possible claim is under the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, sec. 5, 33 U.S.C.A. § 905. This statute expressly exempts from its provisions a "master or member of a crew of any vessel"; § 2(3), § 3, 33 U.S.C.A. §§ 902(3), 903. We believe that Loverich came within the exception as explained and applied by the Supreme Court in South Chicago Coal & Dock Co. v. Bassett, 1940, 309 U.S. 251, 60 S. Ct. 544, 84 L. Ed. 732. He was not a mere watcher of a coal chute as the claimant was in that case. He was a licensed junior engineer and water tender and qualified as an able seaman and barge master, 2nd mate and 3rd mate. He ate and slept on board the barge. During his employment he was paid by the month. He operated the entire barge, whose voyanges sometimes took six weeks. He was, therefore, in our judgment, not a harbor worker, but a seaman.

The unit cost of maintenance in this case has been stipulated between the parties as $2 per day. The case is remanded with directions to enter judgment for the libellant at this rate as follows: From the period of his discharge to the present, excluding therefrom (a) periods when he was employed for wages by other employers and (b) periods when he was hospitalized under circumstances where he was under no expense. Following the direction of the Supreme Court in Calmar S.S. Corp. v. Taylor, supra, there may be included in the discretion of the court below such amounts as may be needful in the immediate future at the stipulated rate up to and including April 30, 1941. There may also be included the cost of whatever medical care, if any, may have been reasonably incurred since the date of the trial and up to the period ending April 30. This without prejudice to any later suit by the libellant to recover maintenance and cure to which he may then be entitled.

CLARK, Circuit Judge (dissenting).

With diffidence*fn1 the writer of this dissent suggests that his learned brethren misjudge the scope of the decision of the Supreme Court in the leading case of Calmar S.S. Corp. v. Taylor*fn2 (coming up from our own Circuit*fn3). Such a misconception, if it is one, has been expected by at least one text writer. In discussing the Calmar opinion he says: "Thus the seaman is to keep biting at his cherry. But for how long remains as hazy as before. The case does indicate, however, that an incurable disease arising out of the employment - that is, an occupational disease or a disease resulting from the ...


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