APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil Action No. 68-380)
Before VAN DUSEN, GIBBONS and HUNTER, Circuit Judges Rehearing before the Court en banc May 9, 1975
Before SEITZ, Chief Judge, and VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and GARTH, Circuit Judges
We are asked in these appeals to reconsider the rule peculiar to this circuit, announced in Neff v. Dravo Corp., 407 F.2d 228 (3d Cir. 1969), and followed in Ward v. Union Barge Line Corp., 443 F.2d 565 (3d Cir. 1971). In those decisions we held that a seaman is entitled to maintenance and cure not only up to the time treatment for his illness or injury has achieved maximum recovery possible, but extended thereafter, when the seaman has become totally and permanently disabled, so long as medical care is necessary to arrest further progress of the disease or to relieve pain. We conclude that the Neff and Ward holdings are inconsistent with the limitations on the maintenance and cure remedy imposed by the Supreme Court and must be overruled to the extent of such inconsistency. The instant case strikingly demonstrates the conflict between our Neff and Ward holdings and those of the Supreme Court.
The suit below was filed by William Cox, an injured seaman, against his ship's owner, the Dravo Corporation, in April, 1968. When Cox died in August, 1973, his widow and administratrix was substituted as plaintiff. The plaintiff sought maintenance and cure under the general maritime law, and under the Jones Act, 46 U.S.C. § 688, consequential damages allegedly arising from Dravo's negligent failure to provide these remedies.
In a previous case Cox had sued under the Jones Act and general maritime law for personal injuries by reason of negligence and unseaworthiness. In that action he claimed total and permanent disability, and sought recovery for pain and suffering, past and future, and for lost earnings, past and future. Medical evidence introduced in the first case indicated that Cox was permanently and totally disabled. The jury apparently so found, for it returned a general verdict for the plaintiff in the amount of $75,000.00.
In the first trial no claim for maintenance and cure was submitted to the jury. This was not in disregard of the rule of Fitzgerald v. United States Lines, 374 U.S. 16, 10 L. Ed. 2d 720, 83 S. Ct. 1646 (1963), that such claims, when joined with a Jones Act claim growing out of the same set of facts, must be submitted to the same jury. At the time of the first trial no claim for maintenance and cure was made because the owner of the vessel had paid maintenance at the rate of $47.50 per week from June 28, 1964, the date of plaintiff's injuries until December 7, 1966, almost a year after the jury verdict which had established Cox's permanent and total disability. Dravo had also paid for medical expenses until January, 1966, the date of trial in the first suit.
In 1968 the instant suit was filed, seeking maintenance at the rate of $8.00 a day from December 7, 1966, and medical expenses incurred by Cox after that date, medical expenses incurred by Cox prior to that date not recovered in the first action, and consequential damages for pain and suffering caused by defendant's alleged negligent failure and refusal to continue to provide maintenance and cure. The case was tried without a jury. It was stipulated that the court would consider the entire record of the earlier action. In addition, testimony was presented that after December 7, 1966, Cox was unable to perform any strenuous activity, that he suffered headaches and dizzy spells, that he took medicines and physical therapy treatments prescribed by his doctor, and that the physical therapy treatments made Cox feel better and relieved his aches and pains. Plaintiff's medical witness testified that the effect of the treatments received after December 7, 1966 was solely the relief of pain and discomfort, that no cure would be effected from such treatments, and that they would not arrest Cox's progressively deteriorating physical condition. The cost of physiotherapy and medical treatment from December 7, 1966 until Cox's death on August 8, 1973, with interest, totalled $3,111.13. The district court entered judgment for plaintiff in this amount for cure, but allowed no award on the claim for maintenance, which at the stipulated rate of $8.00 a day for some 2,453 days, totalled $19,524.00 plus interest. The defendant appeals from the $3,111.13 judgment, and the plaintiff appeals from the court's refusal to enter judgment for the additional $19,524.00.
The district court, recognizing that Cox had become permanently and totally disabled prior to the jury verdict in the first case, and that no treatment would cause an improvement in his condition, nevertheless felt bound by the Neff and Ward decisions to impose on the vessel the cost of physiotherapy and medication for the relief of Cox's pain and discomfort until the seaman's death. The court held, however, that the $75,000 verdict in the first case, which included the monetary value of the loss of future earning power suffered as a result of the accident in suit, barred recovery for maintenance, since such an award would result in duplication of the damages awarded by the jury.*fn1
The latter holding puts into sharp relief the analytical difference between the maintenance and cure remedy on the one hand, and the indemnification remedies for negligence, unseaworthiness, or workmen's compensation on the other. The Jones Act*fn2 permits recovery for personal injury or sickness caused by negligence, and general maritime law permits a similar recovery for unseaworthiness of a vessel. The Federal Employees Compensation Act permits recovery for personal injury or sickness sustained in the performance of duties of employment.*fn3 Although in this case, Cox's condition resulted from an accident sustained as a result of negligence or unseaworthiness, and apparently while he was performing duties of employment, such factors are not relevant to the recovery for maintenance and cure. That remedy is available to any seaman who becomes ill or injured while in the service of his ship, and not even his own negligence will bar recovery.*fn4 The remedy has nothing to do with his employer's duty to indemnify him for permanent injury; a duty which arises from other sources. Maintenance is the equivalent of the food and lodging to which the seaman is entitled while at sea, even if ill or injured, and cure is the equivalent of the medical care to which an ill or injured seaman is entitled while at sea. Thus, we cannot agree with the district court that the jury verdict indemnifying Cox for his total and permanent disability was duplicative of the vessel's entirely separate obligation to provide maintenance and cure.
However, that does not end the inquiry, for although the obligation to provide maintenance and cure is separate from any duty of indemnification or compensation for employment-related injuries, it is clearly not an open-ended duty to provide food, lodging and medical care for the total duration of every illness or injury incurred while in the service of a vessel. Yet the thrust of the Neff and Ward cases seems to be that this is indeed the scope of a vessel's duty in this circuit. For so long as palliative treatment to arrest further progress of the disease or to relieve pain is still medically possible, these decisions permit an award of maintenance and cure even when a seaman has become totally and permanently disabled. In the hypothetical context of an illness entirely unrelated to the seaman's employment, a malignancy for example, the rule on its face seems expansive. Such a result is not, we believe, permitted by the definition of maintenance and cure in Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 82 L. Ed. 993, 58 S. Ct. 651 (1938) and Farrell v. United States, 336 U.S. 511, 93 L. Ed. 850, 69 S. Ct. 707 (1949), recently reiterated in Vella v. Ford Motor Co., 421 U.S. 1, 95 S. Ct. 1381, 43 L. Ed. 2d 682, 43 U.S.L.W. 4447 (U.S. April 15, 1975). See also Salem v. United States Lines, 370 U.S. 31, 8 L. Ed. 2d 313, 82 S. Ct. 1119 (1970).
The obligation of the vessel to provide maintenance and cure first appeared in American maritime law in Harden v. Gordon, 11 F. Cas. 480 (No. 6,047) (C.C.D. Me. 1823). In ...