Hastie, Chief Judge, and Freedman*fn* and Gibbons, Circuit Judges.
This case is before the court on an appeal and cross-appeal from a judgment in an action for damages by the estate and survivors of a former seaman against his employer.
Decedent Charles E. Ward had worked for defendant, Union Barge Line Corporation, as a deckhand and mate for twenty years prior to May 13, 1963. Decedent suffered from rheumatoid arthritis beginning sometime in 1956 or 1957. He received cortisone and other steroid medication for this ailment beginning in 1958. The jury found that he knew himself to be permanently disabled by May 13, 1963.
Decedent had been examined by defendant's doctor in February of 1959 and given a "B" rating, fit for work. The records of the 1959 examination show that the decedent thought himself to be afflicted with rheumatoid arthritis, but that the doctor made no such definite diagnosis. Decedent was again examined by defendant's doctor in May of 1961. The doctor at that time determined that decedent was suffering from rheumatoid arthritis. He prescribed medication and rated decedent "C," fit for restricted duty. Despite this classification, the doctor told decedent that he was not fit for duty.
Notwithstanding the defendant employer's knowledge, or at least constructive knowledge, of decedent's arthritic condition, he was offered employment and did sporadically work between May of 1961 and May 13, 1963 when he became totally disabled and ceased to work. From May 13, 1963, until August 1, 1963, decedent was given full pay, and from August 1, 1963 until December 1, 1963, he was given half pay. Decedent formally retired on December 1, 1963. Thereafter he received retirement benefits based on total and permanent disability.
On April 20, 1966, decedent was admitted to Veterans Memorial Hospital in Pomeroy, Ohio, complaining of abdominal pain. He was found to have developed an ulcer, allegedly due to the prolonged steroid treatment. This condition was followed, in its turn, by obstructive jaundice requiring surgery. On May 10, 1966, Mr. Ward died of complications following the surgery.
Plaintiff commenced this action for damages on August 9, 1966. The factual theory underlying her claims is that the nature and conditions of employment aboard defendant's vessels caused, or at least aggravated, decedent's arthritic condition. This necessitated the steroid medication, which eventually caused the ulcer and jaundice, finally resulting in death following surgery. The complaint alleges three separate causes of action. The first claim is brought by decedent's widow in her capacity as administratrix of his estate. It is in the nature of a surviving action for personal injuries. The second claim is brought by the widow on her own behalf and on behalf of her minor daughter for wrongful death. The personal injury and wrongful death claims both assert these three theories of liability: (1) negligence, (2) unseaworthiness, and (3) breach of the duty to provide maintenance and cure. The third cause of action is for the costs of maintenance and cure incurred during decedent's incapacity prior to his death. The complaint alleges jurisdiction under 28 U.S.C. §§ 1331, 1332 and under general admiralty jurisdiction.
The district court denied all claims for damages for personal injuries and wrongful death and entered summary judgment for plaintiff in the amount of $6,148.75 for maintenance and cure between December 1, 1963 and May 10, 1966. The judgment below was supported in part by a general jury verdict for the defendant on the issue of liability due to negligence and by the jury's answers to three special interrogatories. For the reasons set forth below, we affirm.
I. The Action for Personal Injuries
A. Negligence. It was alleged that defendant is negligent in calling decedent to work when it knew of his physical condition and in failing to provide a safe place to work. This claim is brought under the Jones Act*fn1 and was held barred by the three year statute of limitations imposed by that act. Plaintiff does not seriously contest this disposition on appeal and since decedent ceased work three years and three months prior to the commencement of this action, the district court was clearly correct.
B. Unseaworthiness. The district court held that the claim for personal injuries based on unseaworthiness is barred by laches. Plaintiff now claims that the district court erred in finding laches. Although a finding of laches generally assumes both unreasonable delay and prejudice to the defendant,*fn2 this court has consistently held that if an action for personal injuries due to unseaworthiness is brought outside of the analogous three year period of limitations under the Jones Act, the plaintiff must plead and prove facts which excuse the delay and show why the defendant has not been prejudiced.*fn3 Neither the original nor the amended complaint contain any allegations addressed to this issue, and no such proof was introduced below.*fn4 The trial court correctly held that the claim for personal injuries due to unseaworthiness is barred by laches.
C. Breach of the duty to provide maintenance and cure. Relying on Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 53 S. Ct. 173, 77 L. Ed. 368 (1932), the district court held that the action for personal injuries for breach of the maritime duty to provide maintenance and cure is barred by the three year period of limitations under the Jones Act. Plaintiff argues that this period of limitations is inapplicable, and that the doctrine of laches should govern the availability of the action. In Cortes the court noted that under the general maritime law, if the failure to give maintenance and cure has caused or aggravated an illness, the seaman may recover consequential damages, but that this claim is extinguished at his death. The court went on to hold that the Jones Act provides an additional cause of action for negligent breach of the duty to provide maintenance and cure. At trial plaintiff withdrew any claim based on nonnegligent breach of the duty, acknowledging that under Cortes the remedy dies with the seaman leaving the Jones Act as the sole avenue for redress. The dictum in Cortes, that the general maritime action for damages for failure to provide maintenance and cure is extinguished at death, was rooted in the general proposition that "death is a composer of strife by the general law of the sea." 287 U.S. at 371, 53 S. Ct. at 174. This is no longer an accurate statement of the law. The court in Cortes supported this dictum by citing Western Fuel Co. v. Garcia, 257 U.S. 233, 240, 42 S. Ct. 89, 66 L. Ed. 210 (1921) and Lindgren v. United States, 281 U.S. 38, 43, 50 S. Ct. 207, 74 L. Ed. 686 (1930). These cases are progeny of The Harrisburg, 119 U.S. 199, 7 S. Ct. 140, 30 L. Ed. 358 (1886). Last term the United States Supreme Court overruled The Harrisburg in Moragne v. States Marine Lines, 398 U.S. 375, 90 S. Ct. 1772, 26 L. Ed. 2d 339 (1970), squarely holding that "an action does lie under general maritime law for death caused by violation of maritime duties." 398 U.S. ...