same reason as was pointed out above, this includes maintenance up to and including the last day of trial. Thus both Texaco and Sinclair are obligated to libellant for maintenance from March 12, 1965. Simplicity in maintenance actions for the benefit of seamen seems to dictate that seamen should be allowed to look primarily to the last vessel for immediate payment of maintenance concurrent with the need. Vessel owners can later adjust or litigate any equities as between themselves. Consequently, in order to avoid duplication of recovery, a money judgment at this time will be entered in favor of libellant against Sinclair, but not as against Texaco.
Respondent, Sinclair, refused for a long time to pay libellant any maintenance and cure, despite its clear liability to do so as the last vessel on which libellant served. As a matter of fact, it was not until more than a year had elapsed, counsel retained, and suit instituted, that any payments at all were received from Sinclair. Such unjustified recalcitrance renders Sinclair liable to libellant both for attorney's fees and other costs of litigation. Vaughan v. Atkinson, 369 U.S. 527, 530, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962); Smith v. Seitter, 225 F. Supp. 282, 287 (E.D.N.C.1964); Jordan v. Norfolk Dredging Company, 223 F. Supp. 79, 84 (E.D.Va.1963). Compare Johnson v. Mississippi Valley Barge Line Co., 335 F.2d 904, 907 (3 Cir. 1964).
Therefore, although both Texaco and Sinclair owe a continuing duty of maintenance and cure to libellant, only a judgment against Sinclair in favor of libellant is being entered at this time. There remains the perplexing question, however, of the ultimate responsibility for payment of this maintenance as between Texaco and Sinclair. There seem to be no cases directly on point and those cited by the parties are, at best, analogous. Compare Jones v. Waterman S.S. Corporation, 155 F.2d 992 (3 Cir. 1946) with The Federal No. 2, 21 F.2d 313 (2 Cir. 1927). Sinclair argues that it is due reimbursement by Texaco. It is true, as pointed out by Sinclair, that this injury was caused solely by the accident which occurred upon the SS. TEXACO MISSISSIPPI. However, the right to maintenance and cure is in no way based upon negligence or unseaworthiness, nor was there any contractual relationship between Texaco and Sinclair that might make Texaco liable to Sinclair.
Nevertheless, this Court, while sitting in admiralty, is very largely a Court of equity attempting to render natural justice between the parties involved. "The court is bound to determine the cases submitted to its cognizance, upon equitable principles, and according to the rules of natural justice * * * the grand object of doing justice between the parties is superior to technical rules and forms * * *" 2 Benedict on Admiralty, 6th ed., section 223, at page 30 (1940). The fact remains that the sole cause of libellant's injury was the accident aboard the SS. TEXACO MISSISSIPPI. As pointed out above, Texaco is, therefore, still liable for maintenance and cure. Although we have concluded that it is for the benefit of the seaman to allow him to recover immediately all maintenance from the last vessel on which he served, ultimate responsibility for bearing the financial loss should be carried by the ship on which the accident actually occurred. Therefore, Sinclair can recover against Texaco in No. 151 of 1965 In Admiralty all maintenance and cure which it has been required to pay.
In this proceeding, Sinclair may not collect from Texaco its own counsel fee, and no award will be made to Sinclair for that purpose. I agree with the ruling made by my distinguished colleague, Judge Van Dusen, in the case of Gore v. Maritime Overseas Corporation and Ocean Cargo Ships, Inc., filed June 20, 1966, 256 F. Supp. 104. Judge Van Dusen, in his Opinion, has set forth in great detail the case law applicable to the principle involved that shipowners "are entitled to counsel fees under the policy of the admiralty law which encourages shipowners to pay maintenance claims rapidly and discourages situations where a seaman may be denied a just claim for maintenance during the often lengthy period of time it takes competing shipowners, or a court, to resolve the issue of who is ultimately responsible for such payments," citing Vaughan v. Atkinson, 369 U.S. 527, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962), Jordan v. Norfolk Dredging Company, 223 F. Supp. 79 (E.D.Va.1963), and Sims v. United States of America War Shipping Adm'n, 186 F.2d 972 (3 Cir. 1951), cert. denied 342 U.S. 816, 72 S. Ct. 31, 96 L. Ed. 617; see also Jones v. Waterman S.S. Corporation, 155 F.2d 992 (3 Cir. 1946).
Here, the respondent, Sinclair, by positive action, thwarted the payment of a just claim and should not profit by its own actions. The ruling in the instant case, however, is without prejudice to the right of Sinclair to recover future counsel fees if forced to litigate the recovery over as against Texaco of the amount which it will be forced to pay under the judgment to be entered in this case.
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