Smith and Seitz, Circuit Judges, and Joseph S. Lord, III, District Judge.
The questions of admiralty law which are here raised concerning a shipowner's rights to reimbursement from another party for maintenance and cure paid to a seaman have been considered in the Gooden case,*fn1 also decided today. In addition, this appeal presents a subsidiary issue involving liability for certain counsel fees and expenses.
On this appeal there is no dispute as to the facts found by the trial court. Libellant Gore ("seaman"), although he had had troubles with his back in 1954, 1957, 1958 and 1960, sought employment in late 1961 aboard the SS. Globe Carrier, owned by appellants Maritime Overseas Corporation ("Maritime") and Ocean Cargo Ships, Inc. ("Ocean Cargo"). A doctor found the seaman medically fit for this employment. However, the doctor did not know about the back ailments which the seaman later testified he had failed to mention because "they hadn't bothered me for years." The seaman was hired even though disclosure of his back difficulties might have required rejection pending further evaluation. On January 17, 1962, when the ship was in a Rotterdam shipyard for repairs, the seaman while on board slipped and fell on some loose sugar or salt scattered around a doorway.
Although he worked overtime for an hour and a half during the evening following the accident, the next day the seaman complained of pains in his left leg and back. A doctor advised two weeks rest and the seaman without working returned to the United States aboard the ship. For several months thereafter he received treatment at United States Public Health Service hospitals.
Pronounced fit for duty on a trial basis, the seaman obtained employment from July 31 to August 15, 1962 aboard the SS. Midland, owned by appellee Clearwater Shipping Corporation ("Clearwater"). The seaman did not sustain any accidents during this time, but his back condition in his words "came on worse" when he made a "hard left rudder" while standing wheel watch.
During the remainder of 1962 and the first few months of 1963 the seaman obtained further Public Health Service treatment for his back. In April 1963 he received a fit for duty slip and procured employment aboard the SS. Elemir, owned by appellee Oceanic Petroleum Carriers, Inc. ("Oceanic"). Although again there were no further accidents, this period of service also resulted in additional back trouble.
Compelled to leave Oceanic's ship in June 1963, the seaman received intermittent treatment at Public Health Service hospitals until April 15, 1964 when he once again was declared fit for duty. In spite of the prior fit for duty slips, it was only on this date that the seaman in fact reached maximum cure from his January 1962 back injury aboard the SS. Globe Carrier. A few days later he signed on for a month's service aboard the SS. Commander, owned by appellee Marine Carriers Corporation ("Marine"). The seaman injured his left ankle on board this ship.
After this injury there followed in the summer of 1964 more Public Health Service treatment, including some for his back. By September 1964 the seaman was given another fit for duty slip. He secured employment through November aboard the SS. Colorado, owned by Waterman Steamship Corporation ("Waterman"). This employment resulted in an aggravation of the seaman's back injury when he twisted his leg in Pakistan and when he worked under difficult conditions during a rough return crossing of the Atlantic.
The seaman in December of 1964 returned to the Public Health Service hospitals. In February 1965 a back operation was performed and by June 1965 the seaman again had qualified for a fit for duty slip. Near the end of that month he became a member of the crew of the SS. Chilore, owned by Venore Transportation Company ("Venore"). His tasks on that ship aggravated his back difficulties.
Forced to leave Venore's vessel in July, the seaman during the remainder of the summer of 1965 received further Public Health Service treatments. On September 28, 1965 he was declared fit for duty, his status at the time of trial.
The seaman brought six separate admiralty suits against all the shipowners for maintenance and cure. Clearwater, Oceanic, Marine, and Waterman impleaded Maritime and Ocean Cargo, the owners of the SS. Globe Carrier on which the accident of January 1962 had occurred. The cases were then consolidated and tried together. Only Waterman and Venore failed to settle the seaman's claims, but they do not appeal from the judgments subsequently rendered against them.
There remained for the trial court to decide the impleader issue of whether the maintenance and cure paid to the seaman by Clearwater, Oceanic and Marine could be recovered from Maritime and Ocean Cargo. The trial court concluded that the negligence of Maritime and Ocean Cargo and the unseaworthiness of their ship, the SS. Globe Carrier, caused the accident of January 1962 which resulted in the seaman's back injury. Further, the trial court found that this back injury was responsible for the seaman's periods of disability following service on the Clearwater and Oceanic ships in the summer of 1962 and the spring of 1963 but was not responsible for his disability following employment by Marine in the spring of 1964. On this basis the court below held that all the maintenance and cure payments which Clearwater and Oceanic were obligated to advance to the seaman could be recovered by them from Maritime and Ocean Cargo. Finally, Clearwater ...