8. He went directly to his family physician, where he was treated for a period of five weeks and was unable to go to work until the 27th day of December, 1946, by reason of the condition of his hand.
9. The libellant in opening the bottle of rum committed an act of gross indiscretion and the entire circumstances cannot be attributed to 'in the service of the ship'.
Conclusions of Law
1. This court has jurisdiction of the parties and the cause of action.
2. Under the law and the evidence the verdict shall be for the defendant.
The right to maintenance, cure and wages, implied in law as a contractual obligation arising out of the nature of the employment, is independent of the right to indemnity or compensatory damages for an injury caused by negligence. Pacific Steamship Co. v. Peterson, 278 U.S. 130, 49 S. Ct. 75, 73 L. Ed. 220. The phrase, 'in the service of the ship' is resorted to on many occasions by the courts as stated in The Osceola, 189 U.S. 158, 23 S. Ct. 483, 47 L. Ed. 760; 'That the vessel and her owners are liable, in case a seaman falls sick, or is wounded, in the service of the ship, to the extent of his maintenance and cure, and to his wages, at least so long as the voyage is continued.'
The question posed here is whether the act of the libellant in opening a bottle of rum in the manner in which he did would entitle him to maintenance and cure for his injuries.
An examination of the cases shows that resort is made by the courts, in denying relief to phrases such as 'gross acts of indiscretion', Berwindglen, 1 Cir., 88 F.2d 125, 1937 A.M.C. 347, 'wilful misconduct', Paul R. Jackson v. Pittsburgh S.S. Co., 6 Cir., 131 F.2d 668, 1943 A.M.C. 885. In Aguilar v. Standard Oil Co. of New Jersey, 2 Cir., 130 F.2d 154, 155, the court, after reviewing the cases with respect to maintenance and cure, says: 'Be that as it may, it is not to be confused with the exception that a seaman forfeits his right to the cure of injuries suffered even on shipboard, if they are cuased by his misconduct. Lortie v. American-Hawaiian S.S. Co., 9 Cir., 78 F.2d 819; The S.S. Berwindglen, 1 Cir., 88 F.2d 125; Barlow v. Pan Atlantic S.S. Corp., 2 Cir., 101 F.2d 697'.
It would serve no useful purpose to recite the many cases covering the right to maintenance and cure on the part of a seaman, but suffice it to say, it is the opinion of this court, that the act of the libellant here, in attempting to open a bottle of rum in the manner in which he did, by pounding the bottom of the bottle with the palm of his hand, was such an act of misconduct, as well as such a gross indiscretion, as to bar recovery for his injuries.
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