himself of the prescribed diet and period of rest. His inability to so aggravated and prolonged his illness.
The libellant's position in essence is that breach of an obligation to provide maintenance is a tort and that the ordinary rule of damages for tortious wrong applies.
No case has been cited in which a claim has been made for consequential damages for nonpayment of maintenance, after the termination of the seaman's employment, and I can find none. In Cortes v. Balitmore Insular Line, Inc., 287 U.S. 367, 53 S. Ct. 173, 77 L. Ed. 368, it was decided that, although the duty to provide maintenance and cure arises as an incident to a contractual relationship, failure to perform that duty aboard ship may be 'negligence' and cause 'personal injury' to the seaman within the meaning of those terms as used in the Jones Act, 46 U.S.C.A. § 688; but that was a case of neglect to provide proper medical care on shipboard during the course of a voyage. In terms of performance, there is a difference between the shipowner's duty during the voyage and his duty after it has ended.
On shipboard, maintenance and cure are due in kind and, for obvious reasons, the payment of money has never been thought of as any part of the obligation. What the shipowner owes the seaman during the voyage is food and shelter and, in case of illness or injury, first aid, antiseptics, medicines and such surgery and nursing as is required and within his power to give. Money would do the seaman no good and the employer owes the seaman no money beyond his wages until he is put ashore.
When the voyage has ended the obligation in respect of maintenance and cure continues for a reasonable time but, for equally obvious reasons, the performance is commuted so that it is fully met by providing the seaman with money by which he can maintain himself and get needed medical attention. If the shipowner is ready and willing to pay he cannot reasonably be required to keep track of seamen no longer in his employ and see that they actually get proper food and care. Leaving out of the question the provision for treatment and care of seamen in the Marine Hospitals and by the Public Health Service, which is statutory and does not affect the essential nature of the obligation, it would hardly be contended that a seaman could refuse adequate maintenance offered by his employer in money, and, instead, compel the employer to provide him with a place to live and to buy and deliver to him his food and necessaries.
This being the nature of the obligation, I am of the opinion that the sole remedy is the recovery of the money due. This view is not merely a statement of the well-nigh universal rule of the common law that consequential damages are not recoverable upon failure to pay money due (Williston, Contracts, Sec. 1410) but is based upon the inherent nature of an obligation which arises entirely under the maritime law. 'In discussing these questions, it must be borne in mind that the rules which govern and control them must be determined, not from the municipal law, but by the maritime law. The maritime law furnishes entirely different principles upon many subjects from the common law.', Whitney et al. v. Olsen, 9 Cir., 108 F.292, 297. Analogies are often helpful, but maintenance and cure is a right which simply cannot be fitted into the categories of the common law. It is, I know, difficult to deal with the subject without using the familiar nomenclature of that system but when one reads the decisions they may be confusing unless the unique nature of the obligation be kept clearly in mind. Thus, in Pacific Steamship Company v. Peterson, 278 U.S. 130, 49 S. Ct. 75, 77, 73 L. Ed. 220, the Court referred to the right to maintenance, cure and wages as 'implied in law as (not arising out of) a contractual obligation' and in Cortes v. Baltimore Insular Line, Inc., supra, the Court said that abandonment of the obligation was a tort, referring to abandonment during the voyage.
Of course, if, after the voyage has ended, maintenance is not paid when owing and the seaman's illness is thereby prolonged, the obligation to pay will be extended beyond the time when it otherwise could have been ended and, to that extent, the seaman will be compensated for the delay, but I find no rule of law or policy which extends the recovery beyond that.
The shipowners' burden would be increased far beyond the limits contemplated by the maritime law if in every case in which he honestly, though perhaps mistakenly, feels that no maintenance is due, he were put to the risk of having to respond in consequential damages if he refused it. It can easily be foreseen that under such a rule there would be few suits for maintenance and cure which would not include counts for consequential damages.
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