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Lipari v. Maritime Overseas Corp.

February 7, 1974



Author: Garth

Before: VAN DUSEN, HUNTER and GARTH, Circuit Judges.


GARTH, Circuit Judge

This appeal involves a claim for maintenance and cure brought by the plaintiff (appellee) seaman Lipari, against the defendant (appellant) shipowner Maritime Overseas Corporation (hereinafter "Maritime").

On October 29, 1969 plaintiff instituted a suit against Maritime claiming damages under the Jones Act (46 U.S.C. ยง 688 et seq.), as a result of an accident sustained by him while a member of the crew of defendant's vessel "Overseas Traveller". The accident had occurred on August 15, 1969 when without warning, a boom fell toward, but did not reach, the deck on which Lipari was working. Had the boom fallen all the way, the plaintiff and several other crew members on deck at that time might easily have been killed or severely injured. Thereafter, as a result of this incident, Lipari complained of nervousness and anxiety.

On June 9, 1972 plaintiff instituted this action to recover maintenance and cure stemming from the August 1969 accident. The damage and maintenance actions were consolidated for trial, which commenced with a jury on June 21, 1972. At the conclusion of trial, the District Court submitted 11 interrogatories to the jury. These interrogatories were answered on June 27, 1972, and resulted in the entry of a judgment in favor of the plaintiff.*fn1

Thereafter, the court, sitting without a jury, received evidence and heard argument with respect to the issue of maintenance and cure and found that: (1) psychotherapy of the type that would benefit the plaintiff was not available to him; (2) no such psychotherapy treatment was ever offered to the plaintiff (by the defendant); (3) the plaintiff was unaware that he (the plaintiff) could get the type of psychotherapy necessary to benefit him; and (4) there was no evidence that plaintiff ever rejected such treatment.

Accordingly, on March 21, 1973, judgment in the amount of $4,456 was entered against the defendant, representing payment of maintenance and cure for the period November 24, 1970 to June 27, 1972, excluding a period of hospitalization from December 28, 1971 to January 22, 1972.*fn2 This appeal from the order of March 21, 1973, concerned only with the judgment as it pertained to maintenance and cure, followed.


Lipari, a merchant seaman,*fn3 while in the service of Maritime's vessel "Overseas Traveller" was almost struck by a falling boom on August 15, 1969. As a result of this accident, Lipari developed a nervous condition which caused him to leave the vessel when it reached its next port (Amsterdam). At his own expense, he thereafter returned to the United States, reporting on September 2, 1969 to the United States Public Health Service facility in New York, where he commenced out-patient treatment for his emotional condition. He remained under outpatient care, marked "not fit for duty", until December 4, 1969, at which time he was declared "fit for duty". He re-shipped aboard the first available vessel and served from January 29, 1970 until May 2, 1970, at which time he left the ship ("Newark") to make arrangements for his brother's funeral. Thereafter he re-registered, but his next assignment was not until October 16, 1970 when he joined the "Trans Idaho".*fn4

His nervous condition again resulted in his leaving his ship (now the "Trans Idaho"). He returned to the Public Health Service in New York on November 24, 1970. The record of that psychiatric examination includes among other things: "... post-traumatic, chronic excessive phobic reaction.... This man is not fit for duty. He is permanently 100% disabled for sea duty by virtue of his chronic insistent reaction to an accident fifteen months before. He should be given a medical retirement."*fn5

Lipari was told by the Public Health Service that he was to return in 2 1/2 months. He did not, but rather went home to Montreal, Canada, where he commenced work as a part-time taxicab driver.

The evidence discloses that Lipari did not seek any medical treatment of any sort whatsoever from November 24, 1970 until June 4, 1971. On June 4, 1971 and again on June 11 and July 2, 1971 he visited an orthopedic physician (Dr. Lemaire at Sacre-Coeur Hospital, Montreal) for a back problem, unrelated to either his service aboard the defendant's vessel or his psychiatric disability.

On July 15, 1971 at the request of Lipari's attorney, Lipari was examined by Dr. Alexander Silverstein, a Philadelphia psychiatrist, who recommended psychotherapy for approximately one to four years, three to four times a week, in order to "... help him [Lipari] gain insight into the mechanism of his condition and, hopefully, bring him back to his former level of adaptability and eventually return to the work he is best suited to do."

After this examination, Lipari returned to Montreal and his cab driving. Again he sought no treatment of a psychotherapeutic nature.

On December 28, 1971, Lipari was hospitalized at Sacre-Coeur Hospital in Montreal. The hospital record reveals that a number of tests and laboratory analyses were performed, none of which appear to have direct relevance to any psychiatric involvement.*fn6

Thereafter, (June 2, 1972) on the eve of instituting this action for maintenance and cure, Dr. ...

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