to the ordinary men of the calling. Thus, we conclude that there has been no violation of the warranty of seaworthiness by the United States.
MAINTENANCE AND CURE
The determination of whether plaintiff is entitled to maintenance and cure is based on considerations entirely separate from those crucial in deciding if a violation of the warranty of seaworthiness has occurred.
"[Logically] and historically the duty of maintenance and cure derives from a seaman's dependence on his ship, not from his individual deserts, and arises from his disability, not from anyone's fault." Farrell v. United States, 336 U.S. 511, 515-516, 69 S. Ct. 707, 709, 93 L. Ed. 850 (1949). The seaman is entitled to maintenance and cure even if he is at fault, being barred from recovery only if guilty of gross misconduct. Warren v. United States, 340 U.S. 523, 71 S. Ct. 432, 95 L. Ed. 503 (1951); Farrell v. United States, 336 U.S. 511, 69 S. Ct. 707, 93 L. Ed. 850 (1949); Aguilar v. Standard Oil Company of New Jersey, 318 U.S. 724, 63 S. Ct. 930, 87 L. Ed. 1107 (1943).
Once plaintiff showed that his injuries occurred while in the service of defendant's vessel, to defeat recovery for maintenance and cure, the burden was on the defendant to prove that plaintiff was guilty of gross misconduct. We do not think defendant has met that burden.
Maintenance and cure benefits have been denied in situations where the seaman's willful misconduct has been the sole and proximate cause of his disability, as in cases where a disease was a result of chronic alcoholism. Blouin v. American Export Isbrandtsen Lines, Inc., 319 F. Supp. 1150 (S.D.N.Y. 1970); Smith v. Isthmian Lines, Inc., 205 F. Supp. 954 (N.D. Cal. 1962). However, maintenance and cure is not forfeited by the mere circumstance that a seaman is intoxicated at the time that he is injured. Bentley v. Albatross S.S. Co., 203 F.2d 270 (C.A. 3, 1953).
In cases involving a seaman injured in a fight, courts have varied somewhat in their approach to claims for maintenance and cure. It is clear that where the injured seaman has been the physical aggressor in the fracas, and no more force than necessary has been used to repel his assault, he has no right of recovery. Watson v. Joshua Hendy Corporation, 245 F.2d 463 (C.A. 2, 1957). Likewise, if seamen fight in a pre-arranged battle, there would be no maintenance and cure for the wounded. The Quaker City, 1 F. Supp. 840 (E.D. Pa. 1931) (dictum).
At least one court, however, has allowed recovery for maintenance and cure to an intoxicated seaman injured in a brawl. Stone v. Marine Transport Lines, Inc., 182 F. Supp. 200 (D. Md. 1960); contra, Matthews v. Gulf & South American Steamship Company, 226 F. Supp. 555 (E.D. Pa. 1964). Insulting provocative language by one crew member which causes another seaman to attack and injure him also has not been deemed to be gross misconduct which would bar recovery. Murphy v. Light, 224 F.2d 944 (C.A. 5, 1955); but see Bencic v. Marine Traders, Inc., 255 F. Supp. 561, 565 (D. Del. 1966) (dictum).
In this case, we know that there was an initial scuffle between the plaintiff and Dorsey in the ship's recreation room, with neither of them being injured. After this confrontation, Dorsey remained in the recreation room, while plaintiff was sent to the crew mess room. Approximately five minutes later Dorsey and plaintiff were fighting again in the recreation room. It appears that plaintiff returned there.
What happened afterwards is to a large extent a matter of speculation. Whether plaintiff merely insulted Dorsey upon his return to the recreation room, or hit him, is unknown. All we do know is that when third mate Spires returned to the scene, Dorsey was on top of plaintiff, and there was plenty of plaintiff's blood on the deck. Plaintiff had head cuts requiring 23 stitches, while Dorsey was virtually uninjured. Defendant had failed to prove that plaintiff was the physical aggressor, or that Dorsey did not use excessive force. Plaintiff is entitled to maintenance and cure, since defendant has not sustained its burden of proving that plaintiff's injuries were the result of his own willful gross misconduct.
In reaching this decision, we have kept in mind that "sailors lead a rough life and are more apt to use their fists than office employees." Jones v. Lykes Bros. Steamship Co., supra, 204 F.2d at 817. When a seaman is injured in a fight, we should not be too quick to conclude that he has been guilty of gross misconduct.
The parties agree that plaintiff was not fit for duty for a period of 47 days, from February 9 to March 27 in 1968. Calculated at the daily sum of $8.00, a rate stipulated to by counsel, total maintenance due plaintiff is $376.00.
Since plaintiff is entitled to maintenance and cure, he is also entitled to unearned wages until the end of the voyage. Jones v. Waterman S.S. Corporation, 155 F.2d 992 (C.A. 3, 1946). Since the end of the foreign articles was February 19, 1968, plaintiff may recover for ten days unearned wages (one-third of his monthly salary). Plaintiff's base pay was $422.58 a month, thus his recovery for unearned wages is $140.86.
The final issue involved here is whether plaintiff may recover for counsel fees. In Vaughan v. Atkinson, 369 U.S. 527, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962), the Court held that in an action for maintenance and cure, counsel fees could be recovered as part of damages, reversing a decision by the Fourth Circuit. In Vaughan, the Court found the shipowners to be callous in their attitude toward the seaman's claim, making no investigation of it.
"As a result of that recalcitrance, libellant was forced to hire a lawyer and go to court to get what was plainly owed him under laws that are centuries old. The default was willful and persistent. It is difficult to imagine a clearer case of damages suffered for failure to pay maintenance than this one." Vaughan, supra, 369 U.S. at 531, 82 S. Ct. at 999.
After Vaughan, most courts have confined an award of counsel fees as part of damages to those situations where the shipowner was acting in bad faith in an arbitrary and capricious manner in denying maintenance and cure. E.g., Richard v. Bauer Dredging Co., 433 F.2d 954 (C.A. 5, 1970); Roberts v. S.S. Argentina, 359 F.2d 430 (C.A. 2, 1966); Roberson v. S/S American Builder, 265 F. Supp. 794 (E.D. Va. 1967).
In this case, the withholding of maintenance and cure was not the result of the shipowner's bad faith recalcitrance, but an honest belief that plaintiff was guilty of gross misconduct and thus not entitled to maintenance and cure. To allow recovery here for counsel fees we would have to conclude that "attorneys' fees have been made a routine element of damages to be paid any seaman who wins a contested maintenance and cure suit." Jordan v. Norfolk Dredging Company, 223 F. Supp. 79, 83 (E.D. Va. 1963). While we find ourselves persuaded by the reasoning of the Jordan decision, we find that this Circuit has at least impliedly followed the majority view, and we are of course bound by its determination.
In Johnson v. Mississippi Valley Barge Line Company, 335 F.2d 904 (C.A. 3, 1964), the court upheld the district court's rejection of plaintiff's requested charge to the jury that if a shipowner fails to provide maintenance and cure it is liable for counsel fees as consequential damages. It was indicated that recovery of counsel fees does not routinely follow an award for maintenance and cure. "In denying this request, the district court observed that there was nothing in the record which would support an award of attorneys' fees." Johnson, supra, 335 F.2d at 907 (footnote 2).
This Circuit in denying counsel fees in an admiralty case, has observed that though there are exceptions to the general rule against assessing attorney's fees, "the cases applying these exceptions invariably involve wrongfulness or injustice often amounting to bad faith." Gore v. Clearwater Shipping Corporation, 378 F.2d 584, 588 (C.A. 3, 1967).
Therefore, in the situation presented by this case where there is absolutely no evidence of bad faith, plaintiff may not recover for counsel fees.
Plaintiff's recovery is as follows:
Unearned Wages 140.86
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