vessel will not be held responsible for an error of judgment on the part of officers, if their judgment is conscientiously exercised with reference to existing conditions. The Van Der Duyn, 2 Cir., 1919, 261 F. 887. A ship's officer is not to be held to the same standard of skill as a professional medical man in matters of diagnosis and cure. Barlow v. Pan Atlantic S.S. Corp., 2 Cir., 1939, 101 F.2d 697.
The only problem that affords the court any difficulty in this case is the manner of plaintiff's dismissal and his conduct thereafter at the port of destination, Harbor Island, Texas. That plaintiff was in need of medical attention when he was discharged was recognized by the defendant when it provided him with a marine ticket of admission to a United States Public Health Service Hospital. There is no doubt in the mind of the court that plaintiff was injured in his service of the vessel, albeit from his own negligence, even though he failed to report the occurrence to his superior officers. He also suffered an attack of gastritis and finished the voyage laid up in the ship's hospital. Upon leaving the vessel, plaintiff was informed by a fellow crewman that a hospital facility at the nearest city, Corpus Christi, was closed on that day, a Saturday. The nearest Government marine hospital was at Galveston, Texas, a considerable distance away.
There is nothing in the evidence as to the means by which he was expected to get there. Plaintiff boarded a bus in Corpus Christi and journeyed to Staten Island, New York, after a stop-over at the home of his sister in Norfolk, Virginia. The only medication he received on the journey was provided him at his sister's home. Plaintiff received outpatient care at the Staten Island marine hospital from June 19-26, 1953. He was confined to the hospital from July 13-31, 1953, on which latter date he was discharged as fit for immediate duty.
Defendant resists the claim for maintenance and cure on the ground that plaintiff's illness on board the 'Fort Mims' was caused solely by his own willful misconduct in overindulging in liquor in violation of the rules of the ship.
It would serve no useful purpose to review the numerous cases covering the right to maintenance and cure on the part of a seaman, for in reviewing the factual circumstances in themselves there is a wide diversity of opinion with respect to interpreting them in the light of the general rule. That rule is that in the absence of 'gross act of indiscretion' and 'wilful misconduct' recovery should be allowed. The Berwindglen, 1 Cir., 1937, 88 F.2d 125; Barlow v. Pan Atlantic S.S. Corp., supra. The duty of the master to provide maintenance and cure to a seaman injured or falling ill in service is one imposed by law, Cortes v. Baltimore Insular Line, 1932, 287 U.S. 367, 53 S. Ct. 173, 77 L. Ed. 368, and this duty 'does not rest upon negligence or culpability on the part of the owner or master.' Calmar S.S. Corp v. Taylor, 1938, 303 U.S. 525, 58 S. Ct. 651, 653, 82 L. Ed. 993; Aguilar v. Standard Oil Co., 1943, 318 U.S. 724, 730, 63 S. Ct. 930, 87 L. Ed. 1107; The Mars, 3 Cir., 1907, 149 F. 729. Nor is it restricted to those cases where the seaman's employment is the cause of the injury or illness. The Bouker No. 2, 2 Cir., 1917, 241 F. 831, certiorari denied 1918, 245 U.S. 647, 38 S. Ct. 9, 62 L. Ed. 529; Aguilar v. Standard Oil Co., supra. And if the injury or illness outlasts the voyage, the right to maintenance and cure continues for a reasonable time thereafter, depending on the particular circumstances of each case. Calmar S.S. Corp. v. Taylor, supra; Loverich v. Warner Co., D.C.E.D.Pa.1941, 36 F.Supp. 943, remanded with directions to enter judgment for libellant, 3 Cir., 1941, 118 F.2d 690.
In the case at bar, there was no gross misconduct or insubordination which would work a forfeiture of the seaman's right to maintenance and cure. The Supreme Court has given the instruction that in applying the maintenance and cure rule, seamen, as wards of admiralty, should be beneficiaries of a liberal attitude in consonance 'with the dictates of sound maritime policy.' Aguilar v. Standard Oil Co., supra, note 15, 318 U.S. at page 732, 63 S. Ct. at page 935, 87 L. Ed. 1107. And although decisions hold that an offer of hospital services is a fulfillment of the shipowner's obligation to furnish maintenance and cure, The Bouker No. 2, supra; United States v. Loyola, 9 Cir., 1947, 161 F.2d 126; June v. Pan American Petroleum & Transport Co., 5 Cir., 1928, 25 F.2d 457, the views of Judge Goodrich in Murphy v. American Barge Line Co., 3 Cir., 1948, 169 F.2d 61, 64, bear repeating:
'If hospitalization was the way in which the obligation of maintenance and cure was to be fulfilled, this would mean, we think, that there was a duty to provide means to get the man there. He was no longer an employee of the respondent, it is true, but the duty of maintenance and cure did not stop with his discharge. Loverich v. Warner Co., 3 Cir., 1941, 118 F.2d 690, certiorari denied 1941, 313 U.S. 577, 61 S. Ct. 1104, 85 L. Ed. 1535. A hospital ticket without more under these circumstances does not discharge the obligation * * *.'
While the actions of plaintiff in deciding to travel from Texas to Staten Island for hospitalization may warrant the conclusion that he erred in judgment, I do not consider them to be of such nature as to warrant a forfeiture of his right to maintenance and cure. Cf. Gardner v. Sinclair Refining Co., D.C.E.D.Pa.1955, 129 F.Supp. 225, affirmed 3 Cir., 1955, 227 F.2d 958. The hospital records indicate out-patient care was rendered plaintiff from June 19 to June 26, 1953, inclusive. Accordingly, he is entitled to maintenance and cure for that period at the rate of $ 8 a day. He is also entitled to reimbursement for transportation to Staten Island which was claimed to amount to $ 49.
An order may be submitted in conformity with the findings and conclusions herein expressed.
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