Smith and Seitz, Circuit Judges, and Joseph S. Lord, III, District Judge.
The appeals in this case and in the Gore cases,*fn1 also decided today, raise important and apparently novel questions of admiralty law respecting a shipowner's right to reimbursement from a third party for maintenance and cure payments made to a seaman.
The facts as found by the trial court are not in dispute on this appeal. On September 5, 1963 or thereabouts, libellant Gooden ("seaman") hurt his back in an accident aboard the SS. Texaco Mississippi, owned by appellant Texaco, Inc. ("Texaco"). The circumstances of the accident do not appear from the present record except that the injury was in no way the result of any vice, gross misconduct, or insubordination on the part of the seaman.
After leaving the ship the seaman obtained treatment at United States Public Health Service facilities. Texaco paid the seaman maintenance until May 20, 1964 and, after he had retained counsel and instituted suit, until December 15, 1964. The seaman has waived any rights to maintenance from that date until March 12, 1965.
On two occasions during the winter of 1964-65 the seaman was pronounced fit for duty by the Public Health Service. Although at first rejected by a doctor for appellee Sinclair Refining Company ("Sinclair"), the seaman upon production of a fit for duty slip procured employment beginning March 2, 1965 aboard Sinclair's ship, the SS.J.E. Dyer. In fact, however, the seaman was not fit for duty and, as the trial court expressed it, his prior injuries were "heightened" on Sinclair's ship although he was not involved in any other accidents.
Forced to leave the second ship on March 12, 1965, the seaman received further treatment from the Public Health Service which twice in April 1965 pronounced him fit for duty. Nevertheless, he was still not fit for duty and in June 1965 was rejected for service aboard the SS. Gulfknight. His disability continued down to the time of trial in May of 1966. At that time maximum recovery had not yet been reached. Even so, not until legal action had been taken against it did Sinclair pay the seaman $200 maintenance for the period March 12 through April 6, 1965. Except for the $200, neither shipowner made any other payments for maintenance of the seaman after March 12, 1965.
The seaman's 1964 libel against Texaco and his 1965 libel against Sinclair, in which Texaco was impleaded, were consolidated for trial both 1) on the right of the seaman to maintenance and cure after leaving Sinclair's ship on March 12, 1965 and 2) on the respective liabilities of the shipowners to pay it. Judgment totalling $2,826.85 was entered by the district court in the seaman's favor against Sinclair for maintenance plus 5% interest through May 24, 1966, without prejudice to possible future claims. In addition, certain costs and a counsel fee were awarded against Sinclair in the seaman's favor. The seaman was also granted a separate judgment against Texaco for counsel fees and statutory costs. However, even though Texaco was held to have a continuing maintenance and cure obligation toward the seaman, no judgment against it was entered on that basis because the trial court desired to avoid "duplicity of recovery". Finally, a finding that the seaman's disability was caused solely by the accident on board Texaco's ship provided the basis for the trial court's conclusion that Texaco was obligated to reimburse Sinclair for all the maintenance and cure Sinclair had paid the seaman on account of that disability.*fn2 Gooden v. Texaco, Inc., 255 F. Supp. 343 (E.D.Pa.1966).
Sinclair has not appealed the judgment against it for maintenance and cure of the seaman. Neither Texaco nor Sinclair appeals the judgments for costs and counsel fees. The sole appeal is by Texaco from the judgment against it ordering reimbursement of Sinclair.
In order to be able to analyze the problem of the rights of the shipowners inter se it is necessary to consider their duties toward the seaman. Not only does Sincair not appeal the judgment against it but in its brief in this Court it specifically affirms its maintenance and cure obligation toward the seaman. This obligation arises from the fact that the seaman, while in the service of Sinclair's ship, Vaughan v. Atkinson, 369 U.S. 527, 531, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962), became disabled through no insubordination, vice or misconduct of his own. Aguilar v. Standard Oil Co., 318 U.S. 724, 732, 63 S. Ct. 930, 87 L. Ed. 1107 (1943). It makes no difference that the disability was completely unrelated to the seaman's employment on Sinclair's ship, Farrell v. United States, 336 U.S. 511, 515-516, 69 S. Ct. 707, 93 L. Ed. 850 (1949). The obligation to provide maintenance and cure continues until maximum medical recovery has in fact been achieved, Vaughan v. Atkinson, 369 U.S. 527, 531, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962), notwithstanding the issuance of Public Health Service fit for duty slips, Koslusky v. United States, 208 F.2d 957, 959 (2nd Cir. 1953); Permanente Steamship Corp. v. Martinez, 369 F.2d 297, 299 (9th Cir. 1966); Labenz v. National Shipping & Trading Corp., 153 F. Supp. 785, 786 (E.D.Pa.1957)
Texaco naturally does not dispute these principles insofar as they establish Sinclair's liability to the seaman. However, Texaco in its brief is silent as to its own maintenance and cure obligation toward the seaman except to say that the lower court's conclusion to that effect was not appealable because no judgment was entered based upon it.*fn3 Yet we do not understand Texaco to dispute the trial court's determination that Texaco had an obligation to pay maintenance and cure prior to the seaman's service on Sinclair's vessel. In fact, Texaco has paid the seaman maintenance and cure for this period and we expressly conclude that it was obligated to do so.
If our understanding of its counsel's oral argument is correct, Texaco contends that its obligation to pay the seaman maintenance and cure terminated upon his subsequent service on Sinclair's ship. But such is not the law in this Circuit, Loverich v. Warner Co., 118 F.2d 690, 693 (3rd Cir. 1941); Yates v. Dann, 223 F.2d 64, 67 (3rd Cir. 1955); Labenz v. National Shipping & Trading Corp., 153 F. Supp. 785, 786 (E.D.Pa.1957), or elsewhere, Koslusky v. United States, 208 F.2d 957, 959 (2nd Cir. 1953); Wilson v. United States, 229 F.2d 277, 280 (2nd Cir. 1956); Pyles v. American Trading and Production Corp., 244 F. Supp. 685, 686 (S.D.Texas 1965). As the Ninth Circuit expressed it only last year,
"* * * the better view [is] that employment aboard another vessel * *, although evidence of the fact that the seaman had fully recovered, is not conclusive." Permanente Steamship Corp. ...