the need for maintenance and cure in the instant case continued until September 1, 1946. The period for convalescence testified to by Respondents appears to us too short, and that testified to by Libellant too long.
The Court in its findings of fact found that Libellant was discharged from the vessel and paid off on July 26, 1946, and that he arrived at his home on July 29, 1946. Therefore, the Libellant is entitled to maintenance and cure from July 29, 1946 to September 1, 1946, inclusive, or for a period of 35 days. War Shipping Administration Operations Regulations 108, effective August 1, 1945, provides that licensed officers shall be paid maintenance and cure during periods of disability of not less than $ 4.00 nor more than $ 6.50 per day. We think Libellant is entitled under this Regulation as Third-Assistant Engineer to $ 5.00 per day, and consequently the total amount due the Libellant for maintenance and cure is $ 175.00, that is, $ 5.00 per day for 35 days.
The facts supporting maintenance and cure give rise to a concurrent liability for wages. The Osceola, supra; Calmar Steamship Corp. v. Taylor, supra. This obligation is restricted to the term of the employment as specified by the shipping articles. Jones v. Waterman Steamship Corp., supra. In the instant case, the obligation could have continued for a period of twelve months, as the shipping articles provided for a twelve-month voyage, and further provided for the earlier termination of the voyage at the option of the Captain. However, the Libellant here is entitled to wages only up to and including September 1, 1946 as we have already decided that on that date Libellant's convalescence should have terminated and he should have secured employment. We conclude therefore, the Libellant is entitled to wages from July 29, 1946 to September 1, 1946, or for a period of 35 days. As Libellant's rate of pay was $ 8.23 per day the total amount due the Libellant for wages is $ 288.05.
It is argued by the Respondents that the Libellant is entitled to wages only up to and including August 21, 1946, for the Shipping Articles were closed out on that date. The identical argument was urged in other cases ( Shields v. United States, D.C., 73 F.Supp. 862; Jones v. Waterman Steamship Corp., supra), and it was held that for the purposes of paying wages to a seaman who is injured or becomes ill on board a ship the term of the employment is determined by the original shipping articles and not by the actual termination of the voyage. Of course, the obligation to pay wages to a seaman who is injured or becomes ill on board a ship is terminated by the seaman's return to employment or as in the instant case by his ability to return to employment.
Conclusions of Law
1. Libellant failed to prove allegation of unseaworthiness.
2. Respondents were negligent in only one respect -- in failing to have access to a thermometer on the evening of June 30, 1946, when the Purser examined Libellant.
3. Respondents are not responsible for said negligent act because it was not the proximate cause of Libellant's injuries or illness.
4. Libellant is entitled to maintenance and cure for a period of 35 days (from July 29 to September 1, 1946, inclusive) at the rate of $ 5.00 per day, or in the total amount of $ 175.00.
5. Libellant is entitled to wages for a period of 35 days (from July 29 to September 1, 1946, inclusive) at the rate of $ 8.23 per day, or in the total amount of $ 288.05.
An order may be entered in conformity with the foregoing opinion, dismissing Libellant's first cause of action and granting his second cause for maintenance and cure and wages in the amount of $ 463.05. Interest and costs will be assessed against the Respondents.
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