Appeal from the District Court of the United States for the Eastern District of Pennsylvania; George A. Welsh, Judge.
Before CLARK and JONES, Circuit Judges, and GIBSON, District Judge.
The learned District Judge's introductory statement of facts cannot be improved upon. We therefore quote from his opinion.
"Frank O. Lindquist, an able seaman 57 years of age, joined the crew of the barge 'Exeter' on April 15, 1939 without a physical examination. At that time, and since about 1920, he had been suffering from a urinary ailment. The symptoms of which consisted of frequency of desire accompanied by soreness upon urination, although it apparently did not interfere with his employment. On that day the barge left Philadelphia en route to Boston, but, due to unfavorable weather conditions, it did not reach its destination until May 1, 1939. During the voyage the libellant's condition became progressively worse, and upon arrival at Boston he was unable to aid in the docking of the vessel. His illness and distress had become so acute from the retention of urine that the master of the barge caused him to be removed in an ambulance to the U.S. Marine Hospital at Chelsea, Massachusetts. There the libellant's condition was diagnosed as hypertrophy of the prostate, benign, accompanied by bladder pains, frequency of urination and acute retention. He remained in the hospital where a cystoscopic examination was made on May 11 followed on May 18 by a super pubic prostatectomy for the removal of the prostate gland. Libellant was discharged from the hospital on July 22, 1939, at which time the record noted that the patient was ambulant, urinated normally and should be able to return to work one month from the discharge date." Appendix to Appellant's brief filed May 8, 1941, pp. 22, 23.
The prophecy of the record hereinabove referred to seems to have been over-optimistic. Plaintiff reapplied for his old job on August 21, 1939 but was unable to work at it. At irregular intervals he continued to receive post-operative treatments at various clinics and hospitals. He was still undergoing out-patient hospitalization at the time of the trial.
Plaintiff claimed for negligence under the Jones Act*fn1 and recovery under the doctrine of maintenance and cure for seamen.*fn2 No jury was demanded and the case was heard by the District Judge. At the conclusion of the plaintiff's case, the defendant moved to dismiss the cause of action under the Jones Act. The plaintiff agreed to withdraw that claim and the same was deemed withdrawn by mutual consent. The trial proceeded on the remaining claim for maintenance and cure. The District Court found that the plaintiff was entitled to maintenance at the rate of $13.000 weekly for the seventy weeks which have elapsed from the date of plaintiff's discharge from the hospital. Defendant appeals on grounds that no maintenance should have been granted and that even if permitted it should have been limited to the period of total disability. Finally, the appellant argues the judgment is void because it was obtained in a court that was without jurisdiction.
Plaintiff was not asked about his physical condition at the time he was signed on by the barge captain. He knew, of course, that he was suffering from a urinary ailment. As the learned District Judge puts it:
"* * * The symptoms, although of long standing, caused him some distress at the times when he relieved his bladder but there was nothing to indicate to him that this was an inherently serious or unusual condition to men of his age. The fact that libellant had worked continuously up to the time of hospitalization also seems to negative any idea that an actual disability existed when he was employed or that he knowingly concealed an incipient serious malady." Appendix to Appellant's brief filed May 8, 1941, p. 24.
He does not seem to have known fully its implications. Many men of his age do not.*fn3 The court below treats the matter thus:
"We believe, however, that the condition as it then existed was not of sufficient seriousness as to create in the mind of the libellant any doubt as to his ability to perform the services which would ordinarily be required of him." Appendix to Appellant's brief filed May 8, 1941, p. 24.
Thus a very interesting question is raised. Further, it is one that does not appear to have been met squarely in the cases. This Court has given considerable thought to the scope of the right and duty of the maintenance and care (cure) of seamen.*fn4 The writer rather differed with his learned brethren on the exact extent of the doctrine. He inclined to the feeling that it should not be given an interpretation wide enough to affect its ratio decidendi unfavorably.
By that standard how should we answer the question of the principal case? The obligation is not at peril. Shipowner's liability does not follow seaman's illness or injury. If these latter occur after the commencement of the voyage and are in some measure the result of the sailor's own deliberate acts, he suffers the consequences. We used the qualified "in some measure" because the cases exhibit a certain looseness of expression. Some of them stress morals rather than economics and judge the act by their view of its viciousness.*fn5 Others adopt the descriptive phrase of the cognate Compensation Acts*fn6 and speak of wilful misconduct.*fn7 Still others*fn8 talk of fault in a manner which comes close to a clearly unsound theory of contributory negligence.*fn9
When the physical condition precedes the maritime employment, the courts do not seem interested in its origin. For this there appears to be no logical reason. They have, however, concerned themselves with another problem. Three rules are possible. The seaman can be said to warrant his own fitness. Some cases use such language.*fn10 The shipowner can be compelled to take his "hands" as is. This is the court's interpretation of the Longshoreman's Act.*fn11 Or as a sort of middle ground, the seaman's mens rea can be the test. If, for instance, he has lied to his prospective captain, he should be and is left to his own devices.*fn12 The cases so holding rather speak interchangeably and confusingly, as we think, of fraud and concealment.*fn13 We suggest that a proper clarification can be borrowed from an analogous branch of the law. The life and health insurance contracts have been held uberrima fides,*fn14 more so perhaps in England than here.*fn15 This because the relationship imposes a duty to disclose.*fn16 We think the relationship with his master of as favored a servant as a seaman is ...