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WILSON v. TWIN RIVERS TOWING CO.

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA


May 10, 1976

Ruth WILSON, Plaintiff,
v.
TWIN RIVERS TOWING COMPANY, a corporation, Defendant

The opinion of the court was delivered by: GOURLEY

GOURLEY, Senior District Judge:

 This is an admiralty action for maintenance and cure and unseaworthiness with jurisdiction under the general maritime laws. *fn1" Essentially, plaintiff's action can be separated into three claims which are premised upon illnesses and injuries which developed while in defendant's employ.

 I

 Plaintiff's first claim arises out of her becoming ill on July 25, 1972, while in service of defendant's vessel M/V Arkwright. The record reflects that on July 25, 1972, plaintiff, while on duty, became so violently ill that it was necessary to take her off the ship to seek medical treatment. The following day the plaintiff was admitted to the Allegheny General Hospital with appendicitis and underwent an emergency appendectomy. As a result of this illness, the plaintiff, Ruth Wilson, did not return to work until November 1, 1972 and at no time during this period, from July 25, 1972 to November 1, 1972, did she receive any maintenance and cure from the defendant. *fn2"

 The broad scope of maintenance and cure has been characterized in Farrell v. U. S., 336 U.S. 511, 69 S. Ct. 707, 93 L. Ed. 850 (1949) as follows:

 

"It has been the merit of the seaman's right to maintenance and cure that it is so inclusive as to be relatively simple, and can be understood and administered without technical considerations. It has few exceptions or conditions to stir contentions, cause delays, and invite litigations. The seaman could forfeit the right only by conduct, whose wrongful quality even simple men of the calling would recognize -- insubordination, disobedience to orders, and gross misconduct. On the other hand, the Master knew he must maintain and care for even the erring and careless seaman, such as a parent would a child. For any purpose to introduce a graduation of rights and duties based on some relative proximity of the activity at time of injury to the 'employment' or the 'service' of the ship, would alter the basis and be out of harmony with the spirit and function of the doctrine and would open the door to the litigiousness which has made the landman's remedy so often a promise to the ear to be broken to the hope."

 The law is most firm and definite that recovery for maintenance and cure is available to any seaman who becomes ill in the service of the ship. Cox v. Dravo Corp., 517 F.2d 620 (3rd Cir. 1975). Unquestionably, the record supports the finding that the plaintiff was entitled to maintenance and cure for the ninety-six days in which she was off from work due to her illness. Moreover, when a claim for maintenance and cure is made, there is an affirmative duty upon the ship owner to investigate the claim with reasonable diligence. Vaughan v. Atkinson, 369 U.S. 527, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962). In the instant proceeding no such attempt was made; nor was the defendant able to present to the satisfaction of the Court, any justifiable reason or excuse for its failure to do so. Accordingly, the Court is of the firm belief that the plaintiff is entitled to interest at the rate of 6% on the total amount that is found due for maintenance and cure. Likewise, the Court is satisfied that under all the facts and circumstances, defendant's conduct and its failure to make those payments consistent with the provisions of law, justifies the awarding to plaintiff fair and reasonable attorney fees. Vaughan v. Atkinson (supra).

 However, the Court can find no merit to plaintiff's contention that she is entitled to recover her lost wages as a part of her maintenance and cure. The record reveals that the plaintiff's only claim for the period between July 25, 1972 and November 1, 1972 is for maintenance and cure and not under the Jones Act or doctrine of unseaworthiness. Maintenance and cure is designed to provide a seaman with food and lodging when he becomes sick or injured in the ship's service, and it extends during the period when he is incapacitated to do a seaman's work and continues until he reaches maximum care. Calmar Steamship Corp. v. Taylor, 303 U.S. 525, 58 S. Ct. 651, 82 L. Ed. 993 (1938). Maintenance and cure differs from rights such as wages which are normally classified as contractual. As stated in Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 53 S. Ct. 173, 77 L. Ed. 368 (1932):

 

"The duty . . . is one annexed by law to a relation, and annexed as an inseparable incident without heed to any expression of the will of the contracting parties."

  In view of the above, plaintiff is entitled to the following recovery as a result of her illness on July 25, 1972: Maintenance -- $8/day -- 96 days $ 768.00 Allegheny General Hospital $ 972.05 Dr. Zemel $ 350.00 $2,090.05 Interest at 6% $ 125.40 Total $2,215.45 Attorney fees (1/3) $ 705.15

19760510

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