Vaughan v. Atkinson

PETITIONER:Vaughan
RESPONDENT:Atkinson
LOCATION:Vilage of Kake

DOCKET NO.: 323
DECIDED BY: Warren Court (1962)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 369 US 527 (1962)
ARGUED: Mar 22, 1962
DECIDED: May 14, 1962

Facts of the case

The general maritime law of the United States has long obliged ship owners to indemnify seamen against expenses of injury or illness suffered while on the job aboard ship. An ill or injured seaman is entitled to “maintenance and cure,” that is, to compensation by his employer for the expenses of his medical treatment and subsistence (i.e., room and board) while convalescing ashore. (Until 1982, a seaman could obtain free medical attention from the US Public Health Service. In such a case, the USPHS effectively relieved the seaman’s employer of the duty of cure.)

At discharge, after two voyages onS.S. National Liberty, seaman Clifford Vaughan got a hospitalization certificate from the master, N.J. Atkinson. Vaughan then spent three months in a USPHS hospital and two years as an outpatient undergoing treatment for tuberculosis. The ship owner ignored Vaughan’s request for maintenance as an outpatient. For a while before obtaining clearance to return to duty, Vaughan worked ashore as a cab driver. Later, he sued unsuccessfully in federal district court for maintenance and for damages from the ship owner’s failure to promptly pay, including his attorney’s fees. The U.S. Court of Appeals for the Fourth Circuit affirmed.

Question

1. Did the district court err in offsetting Vaughan’s possible recovery by the income earned as a cab driver?

2. Is the shipowner liable for attorney’s fees?

Earl Warren:

Number 323, Clifford Vaughan, Petitioner, versus N.J. Atkinson, et al.

Jacob L. Morewitz:

Mr. Chief Justice and Your Honors.

Earl Warren:

Mr. Morewitz.

Jacob L. Morewitz:

This is a case here on certiorari -from the Fourth Circuit involving a seaman in the characterization of Mr. Justice Story awarded the admiralty.

The uniqueness is that seldom the case of this import require the intervention or intervent — interposition as some people might call it of this Honorable Court.

There are two questions involved and set forth in our petition, two principal questions, whether or not maintenance is the sto — is designed to restore post-earnings of itself and the right to maintenance whether it should be unaffected by the incidental earning at shore while the seaman is a patient under treatment, unfit to do seaman’s work.

And there’s a second point as to where a shipowner for 23 months has held by both courts below at least in the minority opinion refers to the finding of fact which are conclusive both on the court below and this Court unless the Court goes back to the earlier theory of a new trial both in the Court of Appeals and here in an admiralty case where the shipowner refuses to pay maintenance for 23 months to a sick seaman and for — thereby forcing the seaman to go to the trouble of an expensive in — instituting a suit, obtaining a decree of the admiralty court for his maintenance during these 23 months period.

We say that the shipowner cannot escape paying damages merely because the seaman eventually gets well.

And in that, we are supported by the opinion of Chief Judge Sobeloff who wrote the minority orders sending opinion in the court below.

Vaughan, the seaman in this case, had been employed aboard the vessel on two previous voyages and — where he’s paid off on March the 2nd, 1957.

It’s important to keep the dates in mind to show these 23 months dereliction as the trial court on the part of the shipowner for which the seaman was only recompensed to the extent of interest on the weekly payments, they should’ve had all during these 23 months of delay.

And incidentally, some six months of the final payment was made after the libel was filed.

The case was in court and the trial judge had to take the matter up on two separate occasions before the final payments were made.

Now, the — when the man was discharged, he was given a certificate to enter the marine hospital at Norfolk (ph) which he did on March the 7th and he was examined on that day and told to come back on March the 18th.

Potter Stewart:

The voyage had ended at the time he was discharged?

Jacob L. Morewitz:

The voyage — the particular trip now — Your Honors in a case some years ago divided on the question of whether or not the provision, the usual provision in a foreign voyage of a six — termination, no less than six months or no more than six months rather.

Some of Your Honors minority opinion there held that the six months provision prevailed and the majority I think it was a five-four decisions.

The majority held that it terminated as Your Honor suggested, when the trip was over, he was paid off and got a discharge from the ship no matter what the article might have called for with regard to a minimum period.

In this case, he received his wages on March the 2nd and then given the certificate entitling him without any cost to either the vessel or to the man to be en — to enter and be treated at the marine hospital that’s covered by a fund that’s created out of some of the taxes that the shipowner has to pay in entering and clearing the customs on foreign voyages.

Now, the man entered the hospital as I’ve suggested on March the 18th, 1957 and was under treatment until June the 6th, 1957.

And during that period under the law, he could not recover any maintenance because he received his board and lodging while he was in the hospital.

But immediately upon leaving the hospital, under the principles enunciated during the day of the (Inaudible), they started the — the status of the seaman as I’ve said of being awarded the admiralty because primarily in those days, he couldn’t recover.

They were killed, there were no death statutes and the — in most instances, couldn’t recover even for an unseaworthy vessel.

That doctrine came along a hundred years after.

But he — from time immemorial got maintenance and cure and that’s been thought or furthered away to some extent by the last principles that have been announced that they — if he can’t be cured, if he’s beyond cure, then they — the harsh rule is that the shipowner’s liability stops that he — the only time that the shipowner has to enforce to pay is when there is some possibility of his recovery.

And he must establish that he has been in the employ of the vessel when this injury or the sickness occurred.

And that’s entirely separate apart from what Your Honors have heard under the Jones Act and under the unseaworthy doctrine as to the liability of the shipowner for damages or any negligent or injury whether willful or not or whether it’s a — as a result of the unseaworthiness of the vessel.

But this doctrine —

Potter Stewart:

All you have to show is that the injury or illness or incapacity —

Jacob L. Morewitz:

Yes.

Potter Stewart:

— occurred while you were in the service of the ship?

Jacob L. Morewitz:

Yes, Your Honor.

But we say and the Chief Judge in the court below agreed with us, that here and the — the District Judge in entering up his judgment while he — doesn’t — the use — the vigorous language as the Chief Justice — Chief Judge Sobeloff is — agrees that this was a callous disregard of the rights of this seaman or any other seaman to recover maintenance under the circumstances unless that it in this case and at that disregard continued for some two months after the libel was filed.

Potter Stewart:

Now, Mr. Morewitz, let me get a couple of things straight in my own mind, cure is not involved in this case?

Jacob L. Morewitz:

Cure is not involved because he was under treatment, had outpatient treatment for as — over two years, I think.

Potter Stewart:

Right from the beginning that —

Jacob L. Morewitz:

And he was discharged finally as fit for duty —

Potter Stewart:

Right.

Jacob L. Morewitz:

— as a seaman.

Potter Stewart:

So cure is not in any way involved in this case?

Jacob L. Morewitz:

Cure is not involved.

Potter Stewart:

All that is involved is maintenance?

Jacob L. Morewitz:

Is the maintenance.

Potter Stewart:

And now, what is it — your position that — the — that it was the extent of the respondent’s obligations so far as maintenance goes because —

Jacob L. Morewitz:

Well —

Potter Stewart:

— you told us the voyage had ended.

Jacob L. Morewitz:

Yes.

Potter Stewart:

And I shall think of it at least be arguable that there was absolutely no obligation with respect to maintenance.

Jacob L. Morewitz:

No, Your Honor.

Your Honors availed in the — from the days of Mr. Justice Story up to present, no court as far as I know had held that it ends with a trip because that would knock out all the benefits that a seaman would get by reason of his employment.

If you just cast him a shore and put him on relief or subject to charity the very thing that the initial principles when a seaman was a slave was created to prevent.

Potter Stewart:

Right.

Well then how — what’s — how long would this obligation to pay maintenance continue —

Jacob L. Morewitz:

Until he —

Potter Stewart:

— in your (Voice Overlap) —

Jacob L. Morewitz:

Until he is either cured or there’s no possibility of cure as I announced originally.

Potter Stewart:

Until he —

Jacob L. Morewitz:

I don’t —

Potter Stewart:

— would be — he’s either cured or it was shown that he was incurable?

Jacob L. Morewitz:

That’s the principle.

Potter Stewart:

And the obligation to pay maintenance would go on until that point was reached?

Jacob L. Morewitz:

Yes, Your Honor.

Now here, without any excuse whatsoever, I haven’t heard a whole lot today and I was very much interested in the National Labor Relations cases with regard to the proposition of good faith on the part of the owner or the employer.

In the case at bar, it would seem to us that the burden was on the respondent’s shipowner convinced both of the lower courts if he could.

He had a faith of any kind.

Good — certainly, we have a right to argue as the — intermitted by the Chief Judge’s opinion, the case below that the shipowner’s faith in this case was entirely bad that he had no excuse whatsoever and didn’t endeavor to even argue much less establish in the courts below that he paid any regard to this seaman’s rights with regard to maintenance, it’s been long established, which doesn’t require any contract of the courts and this Court have held in the ca — the decision that’s cited by both sides of Mr. Justice Cardozo with regard to the establishment.

The only thing that the seaman has to establish is that he’s been employed onboard of this vessel and is given service on.

It doesn’t go so far as to — to be a self-infatuating insurance, but it goes pretty close to it and then in some respects even — we think go to a lot further because I don’t know if there may be some insurance policies that require the insurance company to pay forever if there’s any chance of the seaman reestablishing himself but I think it goes to that extent in the case of this sort if there’s any probable reason to believe that the seaman can recover so he can go back to work.

Potter Stewart:

Go back to work as a seaman or go back to work generally (Inaudible)?

Jacob L. Morewitz:

I think under the present day, the charge that he gets for them — the hospital in which took over two years here to get, was that he was fit for duty as a seaman.

And in the meantime, what the shipowner is seeking to take advantage of here that he was employed as a part-time taxi driver and had some earnings during that period, during that long period while the shipowner wasn’t paying him anything.

That shipowner under the trial judge’s decision was able to deduct the maintenance from the — deduct from the amount of maintenance that he was undoubtedly entitled to receive under a union contract which is unconditional if Your Honors will read it both so far as we referred to it here and I’ll refer to it in a moment.

Under the union contract here which is contrary to what Your Honors have heard in the labor relations cases if necessarily be negotiated before it could be enact — acted upon.

Here, there’s no question about what the union contract had been negotiated and repeatedly renegotiated that what it contains and it’s unqualified.

And yet, with all of the line, the plain language that it contains, the shipowner without making any attempt to rely on it prior to the time the suit was instituted, was able to convince the trial court and the majority of the court below that the amount that he earned when he was forced to work in order to keep himself going to in this period that he was a patient that that should be duc — deducted from the maintenance that was due him under the contract.

Potter Stewart:

Well, now the contract didn’t — the contract specified the amount of — for the —

Jacob L. Morewitz:

And it also —

Potter Stewart:

— in dollars to that.

Jacob L. Morewitz:

Your Honor, made it unconditional with no conditions in the contract, it even —

Potter Stewart:

But it didn’t go to the question of how long it should be paid —

Jacob L. Morewitz:

Well, that — the — as I —

Potter Stewart:

— as matter of law, isn’t it?

Jacob L. Morewitz:

That’s a matter of law.

It’s implied, they didn’t have any contract, didn’t have to have any contract to cover —

Potter Stewart:

And —

Jacob L. Morewitz:

— to begin with.

Potter Stewart:

And that that’s not purported to be dealt with in the point —

Jacob L. Morewitz:

No, sir.

Potter Stewart:

— of bargaining period.

It’s —

Jacob L. Morewitz:

Now, the —

Potter Stewart:

— the amount that’s specified, is that it?

Jacob L. Morewitz:

No, Your Honor.

Potter Stewart:

The unconditional amount that specified it.

Jacob L. Morewitz:

The unconditional amount and the unconditional way in which it was to be paid.

Potter Stewart:

The amount per day?

Jacob L. Morewitz:

To be paid weekly.

And it was to be paid without any question as through the position of a lawyer that even ignored any lien that a lawyer might have or any course under the statute of the United States that Your Honor probably familiar where that — they — you couldn’t attach the wages of a seaman under any circumstances for any claim that the shipowner might have or anybody else might have.

Potter Stewart:

But —

Jacob L. Morewitz:

That when he is entitled to wages under the law as laid down for nearly a 100 years by Congress that they — you can’t arrest his wages and you certainly couldn’t arrest his maintenance.

You can’t even do that on a workman’s compensation.

But they — here, the court below said that the — and the trial court held that the prevailing opinion of the majority opinions supported the view that it could be deducted.

We say that the majority opinions were the other way and that on reason and authority, it’s the other way.

And I come —

Potter Stewart:

Now I would — I should think, it just appears to me that the respondent could take an even more extreme position.

Once a person is able to earn wages, I should think the respondent might be able to say what my obligation to pay any maintenance at all is terminated.

Jacob L. Morewitz:

Yes, Your Honor.

That would be true if he was reestablished in the status of a seaman so he could earn what he was able to earn as a seaman.

Potter Stewart:

Well, let’s say he got a job but not as a seaman but as Vice President of General Motors of — by 50 times what a seaman earns.

Jacob L. Morewitz:

Well —

Potter Stewart:

Do you say he was still entitled to maintenance?

Jacob L. Morewitz:

No, sir.

But because there, it was — certainly be presumed that he had gotten a whole lot higher status than he would’ve as a seaman —

Potter Stewart:

Well —

Jacob L. Morewitz:

— and was able —

Potter Stewart:

But your argument —

Jacob L. Morewitz:

— to earn more money.

Potter Stewart:

Your argument, I should think, would lead you to answer yes.

He’s entitled to main — entitled to maintenance —

Jacob L. Morewitz:

Well, if —

Potter Stewart:

— if not able to work as a seaman.

Jacob L. Morewitz:

If I want to be extreme about it I —

Potter Stewart:

I’m (Voice Overlap) about it.

Jacob L. Morewitz:

I might and he could but I don’t want to be that extreme.

But they — the — they are — they conca — the setup of the decision of the court below which we of course rely on here, the dissenting opinion is unanswerable.

And the majority opinions Your Honors, I think are bound to agree doesn’t attempt to answer.

And they — there the — while I have great respect for Judge Soper, we’ve been on the bench for a long while, he doesn’t attempt to discuss the main propositions that Chief Judge Sobeloff sets forth at some length.

As a matter of fact, the opinion of Judge Soper, I think it’s about no more than two pages and refers to the decisions in the Second Circuit as being a better view than the decision in the Third Circuit.

The fact remains that the principles that are applicable to the case that we have here are enunciated as firmly as it could be by Chief Judge Sobeloff.

And that no reference to those principles are made by judge — now, of course I go along with this if Your Honors agree, with judge Soper then we have — got any case here.

William J. Brennan, Jr.:

Can he lose?

Jacob L. Morewitz:

Sir?

William J. Brennan, Jr.:

Can he lose?

Jacob L. Morewitz:

Yes.

But we — we’re — certainly have every reason to hope that Your Honors are bound to be convinced by Judge Sobeloff’s opinion here whether and we are not trying to sort of gild the lily by anything in our brief.

We have a proposition here where the court below an experienced judge and the Chief Judge of the Court of Appeals in Maryland and the Solicitor General of the United States had been on the Court of Appeals now for some four or five years that a — he is taking this view and that the majority in no way had been able to demonstrate that he is in anyway wrong.

Felix Frankfurter:

So we can’t put — there aren’t any scales by which we can weigh their respective appeal, their professional judgment or wisdom and (Inaudible) Judge Soper and Judge Sobeloff, can we?

Jacob L. Morewitz:

No sir, except this that if the reasoning of a one as against the other appeals to the court has been the fair and just way of handling a thing of this sort which affects one of the lowest class of our citizen.

And incidentally, in — well, this is a case involving American citizen on an American ship.

Whatever judgment of this Court is, it will affect seamen at large because as I’ve pointed out, the proposition of maintenance and the — and their refusal to take care of it for some 23 months as in the case at bar would be a whole lot worse in the case of a foreign seaman if he were cast ashore and put in an American hospital and no way of getting home and beaten in any such way as this.

Potter Stewart:

Of course while he’s in the hospital, he gets both maintenance and cure, does he?

Jacob L. Morewitz:

Yes.

Potter Stewart:

From the hospital?

Jacob L. Morewitz:

He gets at the expense of the United States.

Potter Stewart:

That’s right.

Board and lodging and —

Jacob L. Morewitz:

Yes.

Potter Stewart:

— and cure.

Jacob L. Morewitz:

And he also gets medical treatment.

Potter Stewart:

Yes.

Felix Frankfurter:

What’s the source of the doctrine of maintenance?

What’s the source of it?

Jacob L. Morewitz:

In law — the — it was a non — it was developed as I have stated — suggested for —

Felix Frankfurter:

A judge may think, isn’t it?

(Inaudible)

Jacob L. Morewitz:

Oh yes, that the admiralty judge —

Felix Frankfurter:

And it derives from a sense of public policy that that human being seaman, they ought not to be cast adrift, is that right?

Jacob L. Morewitz:

Yes, Your Honor.

Potter Stewart:

Kind of a 11th Century social security, you suppose?

Jacob L. Morewitz:

It — there — it certainly goes further than the present day ideas with regard to a man falling ill while he’s employed by a land employer because a seaman at sea is helpless.

Felix Frankfurter:

Now, of course you don’t restrict as to determining the rightness of the result of Judge Soper to his own — to his reasoning.

I suppose we have a little latitude in that regard.

Jacob L. Morewitz:

No, sir.

But they — I don’t think Your Honors could if you — he even agreed with Judge Soper.

He could agree.

Felix Frankfurter:

Couldn’t find a better reason?

Jacob L. Morewitz:

Sir?

Felix Frankfurter:

You couldn’t find a better reason than he gave?

Jacob L. Morewitz:

No I —

Felix Frankfurter:

Let me suggest some —

Jacob L. Morewitz:

I —

Felix Frankfurter:

Let me suggest some.

There’s a general principle of law that from the point of view of the public interest, we’re dealing here with a public interest, namely the protection of a seaman.

There’s a general principle of law that damages of a legal in — of a person may be entitled to them must be reduced.

The man can’t fold his arms and say, We’ll take a good number of contracts where cases have arisen.

The man is employed by a company, so much for years and he’s unduly discharged, he was unduly fired.

I suppose the doctrine is universal that he can’t just say, Well, you charged me unfairly.

I’m going to sue you.

I was — demand a salary of $20,000 or $10,000 or $5000 or $50,000.

And not only can’t he just collect all that he would’ve earned if he stayed there but there’s almost a duty to reduce the damages because society — it’s the society’s interest not to have economic weight.

Felix Frankfurter:

This Court adopted that — applied that doctrine in the labor cases where an employee who however affluent he may be in this questionably affluent society, isn’t too affluent so he can’t fold his arms.

And we held that the employer who disobeyed the Wagner Act must make good but not to the extent that you can’t deduct what the employee earned or reasonably could have earned.

Now, please tell me why that doctrine doesn’t apply to this situation?

Jacob L. Morewitz:

I refer again to Judge Sobeloff’s opinion and say to Your Honor this, that there’s a vital distinction between wages earned particularly on shore and maintenance such as — as implied in the contract for seamen because he’s entitled to maintenance plus wages.

The seaman is entitled to wages plus his maintenance as long as the voyage continues.

Felix Frankfurter:

Yes, but maintenance is full of purpose, namely that he should be sustained.

Jacob L. Morewitz:

Yes, Your Honor.

Felix Frankfurter:

And if he can sustain himself or has sustained himself by earning otherwise, why should the law which is law imposed, law enforce, why should the law say, Although you were maintained by having a job nevertheless, they think the fellow efficiency, owner’s duty, the ships duty is to maintain you although you have been maintained.”

Jacob L. Morewitz:

But Your Honor, in this case —

Felix Frankfurter:

So you’re sustained, you’re also entitled to maintenance because we are here to determine whether you’re entitled to maintenance under these conditions.

Jacob L. Morewitz:

But, the position that we take, supported by Judge Sobeloff is that the shipowner can’t take unilateral action to force a seaman to be employed so as — in order to create a windfall if you want to term it that, in the reduction of what is undoubtedly due under the seaman’s contract.

He doesn’t —

Felix Frankfurter:

But that you can’t say the exactly the same thing regarding the employer —

Jacob L. Morewitz:

Yes, but —

Felix Frankfurter:

(Voice Overlap)

Jacob L. Morewitz:

But you’ve —

Felix Frankfurter:

— exactly the same (Voice Overlap)

Jacob L. Morewitz:

Yes sir, but if —

Felix Frankfurter:

The employer has fired him and the employer was entitled to earn wages that felt stodge, but in the meantime, he earned — he had an income otherwise, I don’t mean of an income because the rich uncle died, an income to working otherwise and you might say the employer had a windfall.

Jacob L. Morewitz:

But now here, the contract says that this payment shall be made Your Honor, regardless of whether he has or has not obtained an attorney, filed a claim for damages or taken any other steps to that end and irrespective of any insurance arrangements in effect between the company and any insurer.

Felix Frankfurter:

You haven’t gotten any of those conditions here.

Jacob L. Morewitz:

Yes, Your Honor.

You have that — if I may be permitted to say so, you have a proposition that the shipowner made no attempt to pay him any even the part that he was forced to pay later.

The difference made no attempt and supposed to paid rigidly on a weekly basis.

But here, he paid nothing —

Potter Stewart:

Was any given —

Jacob L. Morewitz:

The placement —

Potter Stewart:

Was any reason given for that?

Jacob L. Morewitz:

No, sir.

And they’re attempting to give some excuse in this Court.

Jacob L. Morewitz:

But as said by both courts below, in Judge Sobeloff particularly, they didn’t attempt to defend themselves even or argue in the court below.

Of course —

Felix Frankfurter:

That doesn’t —

Jacob L. Morewitz:

(Inaudible)

Felix Frankfurter:

That doesn’t —

Jacob L. Morewitz:

Taken up —

Felix Frankfurter:

That doesn’t touch the doctrine of (Inaudible) case.

Jacob L. Morewitz:

No, sir but I —

Felix Frankfurter:

That doesn’t touch it.

Jacob L. Morewitz:

But the point that Your Honor, I — I think what I have to take in consideration here, did you have to make the vital distinction between his earnings as wages and his — and the obligation of the shipowner to provide maintenance plus his wages.

Felix Frankfurter:

Provide maintenance.

But I’m suggesting that he has seen to it that he’s had maintenance and you’re concerned, (Voice Overlap) —

Jacob L. Morewitz:

But he didn’t —

Felix Frankfurter:

And Judge Sobeloff is concerned on what he calls windfall of what he thinks will be an inducement against the shipowner not to do what is right.

Jacob L. Morewitz:

But if I may be prevented Your Honor here, the shipowner disregarded even the part that he was forced later to pay.

Felix Frankfurter:

Alright I may hold them for that.

It doesn’t fall on (Voice Overlap) —

Jacob L. Morewitz:

Yes, but that —

Felix Frankfurter:

— everything.

Jacob L. Morewitz:

But in addition to that — all the expense now Your Honor in the case here in the last 10 years held different to what our friends on the other side have said with regard to the payment of attorney’s fees to recover this half of what he was originally entitled to get.

That’s also — he loses that too so the net result is that he gets very little — what his contract call for in the face of the contract which says that the attorney’s obligation should be disregarded.

Potter Stewart:

Well, Mr. Morewitz, I — I was going to ask you about the laws to attorney’s fees in cases like this, is there any statue limiting the amount of attorney fees?

Jacob L. Morewitz:

No, no, Your Honor.

Potter Stewart:

There isn’t any.

And are attorney’s fees recoverable against a shipowner?

Jacob L. Morewitz:

They — well that’s one of the questions this Court has not called on to decide.

Judge Sobeloff says he thinks in any —

Potter Stewart:

Well, that’s not an issue in this case, isn’t it?

Jacob L. Morewitz:

Sir?

Potter Stewart:

That’s not one of the questions, is it?

Jacob L. Morewitz:

Yes sir, that’s one of the principal questions in the case.

Potter Stewart:

Whether attorney’s fees are recoverable?

Jacob L. Morewitz:

Whether or not as between solicitor and client as set forth by Mr. Justice Frankfurter in this Ticonic case sometime ago, whether that’s an — the court there — in that case in a footnote referred to the admiralty rule which was disregarded by both the majority opinion and the trial court’s opinion that attorney’s fees as between solicitor and client are recoverable in the case of this sort.

And this is a vital question that isn’t the — this — I don’t imagine Your Honor for a grant of certiorari to begin with.

If you didn’t think it was important enough to — with regard to a future conduct of a shipowner with regard to a seaman to be disregarded in the flagrant way in which this is —

Hugo L. Black:

I suppose you’re arguing that if the invocative principle of Justice (Inaudible) in order to require this man to surrender to the shipowner his little earnings he’s made that you also ask him if we invoke the principles of justice in equity to require the shipowner to pay the attorney’s fees —

Jacob L. Morewitz:

Yes, Your Honor.

Hugo L. Black:

— brought about by the shipowner’s refusal to do — live up to his (Inaudible)

Jacob L. Morewitz:

And what — what — what we have to keep mind if I may say so is earning it on the vessel is over — with something like $305 a month.

His maintenance only amounted to $56 a week and out of that $56 a week — now on the vessel while h was employed on the vessel in addition to his wage, he got his board to keep.

And he got it while he was in the hospital.

But he didn’t get it after he got out of the hospital.

And from that pittance that he was set up one-sixth to what he’s original earnings were are deducted — what he was able to scrape around and get as a part-time taxi driver.

Hugo L. Black:

How much was the — how much was he loosing a month you say, his wages?

Jacob L. Morewitz:

Something like —

Hugo L. Black:

— (Voice Overlap) — what wages had he been making?

Jacob L. Morewitz:

$305 a month.

Hugo L. Black:

How much was he getting out of this $8 a day?

Jacob L. Morewitz:

$56 a week.

Hugo L. Black:

Below the $200 (Inaudible)

Jacob L. Morewitz:

But the trouble is he didn’t get it.

Hugo L. Black:

Well, I understand he didn’t get that.

That he’s having this suit to get that.

Jacob L. Morewitz:

Yes.

He now —

Hugo L. Black:

And they want — they want to offset the little he does get by the —

Jacob L. Morewitz:

He will —

Hugo L. Black:

— by the (Inaudible) balanced he’s earned driving a taxi.

Jacob L. Morewitz:

Yes.

Not only do they want to do it but they were already been permitted to do it.

Jacob L. Morewitz:

And he hasn’t got it.

Earl Warren:

While they was on the ship he not only got $305 a month because of maintenance, (Voice Overlap)?

Jacob L. Morewitz:

That is maintenance.

And he — and they — the — he was able to have some regular routine in what he was doing.

This way he had — of course we haven’t brought up in this case.

He had some expense in going to and from the hospital in order to get this outpatient treatment.

That hasn’t been recompensed here in anyway.

But out of the $56 a week, there was a deduction of something like half or $25 or $30 a week from the $56 and the — under the rulings of the courts below, he only got the difference.

And it doesn’t seem to me that a court of equity would count this — leave aside a court of admiralty which is forced to go somewhat further even on a court of equity, which happens in that sort.

Now, if the shipowner — I’d go this far — if the shipowner had paid this man anything at all or even made a refusal to pay, they didn’t even acknowledge his letter, sending him a copy of the hospital report when he left the hospital, registered mail.

They didn’t even acknowledge that.

Just simply ignored the whole business until he filed this libel and then didn’t pay anything until the — not only judge had a hearings some two months after the libel was filed but I don’t know, I wasn’t there when the case was tried but I don’t know how the trial judge intermitted what he would do but certainly they had to pay him something even this difference that they are now being permitted to pay but they didn’t pay that for some two months after the trial judge had his hearing.

Earl Warren:

Mr. Martin.

Walter B. Martin, Jr.:

Mr. Chief Justice, may it please the Court.

The seaman in this case was not a professional seaman.

The only four months he had ever been to sea as a seaman was on the vessel National Liberty.

It’s been a good part of his life prior to World War II and for some 12 or 13 years after World Ward II as a taxicab driver.

For some unknown reason, he decided to go to sea for two voyages.

He left the National Liberty, not on account of illness, but he left at the end of a voyage when the entire crew signed off articles.

At that time, he did request a slip of the master to permit him to go to the Public Health Hospital.

Potter Stewart:

His employment, his articles when he signed on, what were the terms of his employment?

Walter B. Martin, Jr.:

Terms of his employment were —

Potter Stewart:

So far as —

Walter B. Martin, Jr.:

— to a —

Potter Stewart:

— terrain?

Walter B. Martin, Jr.:

— port of Europe and returned to the United States.

They were the ordinary coast guard forum articles on the United States merchant —

Potter Stewart:

Signed on for a round trip voyage, is that —

Walter B. Martin, Jr.:

That’s correct, sir.

And he signed off before the shipping commissioner with the rest of the crew, the normal termination of the voyage.

Earl Warren:

The — so far as this case is concerned, does it make any difference how long he was a seaman?

Walter B. Martin, Jr.:

I think it does if we are going to rely upon the dissenting opinion of Judge Sobeloff.

And I will get to that later, sir.

Jacob L. Morewitz:

If I may be permitted to suggest Your Honor that the articles are not here and they’re quoting from it and the ordinary one has a six months termination.

That is something different from this one.

Earl Warren:

Oh, I’d suggest if you want to quote further from the articles that you submit the articles to us so we can — so the Court can see them.

Walter B. Martin, Jr.:

I was merely reciting from my memory.

Justice Stewart asked me a question —

Earl Warren:

Yes.

Walter B. Martin, Jr.:

— relative to —

Earl Warren:

Yes.

Walter B. Martin, Jr.:

— the articles.

I wasn’t citing it for — they’re my statement of the facts.

Upon release from the Public Health’s Hospital in June of 1957, the seaman immediately went to work for his brother who owned a taxicab company in Newport News, Virginia.

He wrote a letter to the shipowner, sent him a copy of his medical discharge certificate from the Public Health Hospital, requested a payment of maintenance.

The owner investigated the claim.

He contacted the master of the vessel.

The master of the vessel said, The man had never made any complaint onboard his ship.

The law again presented the case.

The man had been discharged in the normal course of his employment.

The slip sent by the man to the owner showed that he reported to the hospital more than two weeks after his discharge from the vessel.

Now, this was an admission on — omission on the part of the seaman and that he did not tell the owner of his original contact with the hospital.

When he had first gone there, they had told him to come back some week or six days later.

With these facts, the owner denied any liability and no further contact was heard from the seaman for a period of a year-and-a-half.

For a year-and-a-half, he did not report.

Earl Warren:

Was the formal denial, is that in the record?

Walter B. Martin, Jr.:

No, there was no formal denial.

It was denial and that they did not reply.

Earl Warren:

Didn’t reply?

Walter B. Martin, Jr.:

Yes.

Walter B. Martin, Jr.:

A year-and-a-half, the seaman did nothing.

He worked and then he had paid the services of an attorney and he filed a suit.

A motion for interlocutory decree for award of maintenance was brought on before the District Judge.

It was heard and argued.

The District Judge, in an order requiring the shipowner to pay the seaman $8 per day less what he earned as a taxicab driver.

Now, the shipowner complied with that decree promptly.

And he complied with it all along.

And this — I think is of interest.

The judge did not say to the seaman, You have to continue working as a taxicab driver, but after the decree was entered and after the maintenance pay much were paid, the seaman continued to work for a period of some four months until he had been declared fit for duty as a taxicab driver.

And all during this period of approximately two years while this seaman was an outpatient, he was being treated at Public Health Hospital at periodic times, primarily with X-rays.

He had a suspected chest condition that it was never — they were never able to determine exactly what it was.

He was being treated with the knowledge of the physicians that he was doing this particular this type of work.

It was not injurious to his health.

It was a type of work that he had spent most of his adult life doing.

In fact, it’s not in the record but he has continued to do this work since his discharge from the marine hospital.

He has not gone back to sea.

But they say he’s not a professional seaman.

As to the law here involved, and I think on the law, we stand on a very firm pedestal.

The doctrine of maintenance and cure is an ancient doctrine.

It has its origin in the laws of the Mediterranean lands existing before the time of Christ.

The principle basically was that the seaman employed on a vessel was entitled to be cured at the expense of the owner if he was injured or if he incurred an illness in the service of the vessel.

This doctrine came down to our early admiralty courts through the English admiralty courts.

It was first enunciated by this Court in the Osceola in 1903.

It had been followed by the law of admiralty courts in this country since after the revolution.

The Osceola redefined the right of maintenance and cure saying that the shipowner owed to the seaman the duty to furnish him maintenance and cure until he was fit for duty or until he had reach the form of maximum cure.

Following the Osceola in 1904, this Court handed down a decision in the Iroquois which involved a sailing vessel bound from South America to the United States where there’s seaman onboard who had suffered an attack of appendicitis.

And the question was whether the master should’ve put in to the Port of Valparaiso in order to give the man more immediate medical care.

And there, the court in dicta said that the shipowner had this particular duty to furnish him maintenance and furnish him cure as promptly as possible, that if he did not furnish these elements, that the seaman might have a right of action.

That was dictum.

Some 28-29 years later, 1932, this Court handed down the Cortes decision in which a seaman died of pneumonia onboard a vessel at sea.

Walter B. Martin, Jr.:

The administrator of the seaman’s state claimed that the vessel should’ve been put into port.

And there, this Court held that the right of maintenance and cure was a contractual right.

It was a right that grew out of the contract.

It was an implied provision of the seaman’s contract.

And that if this provision of the contract was breached, then the seaman’s administrator in this case had a cause of action for damages, just as you would for the breach of any contract, the damages that naturally float from the breach which would be expensed that the man had to incur for his own maintenance or for the cost of his medical care that he had to employ or for the damage that he may have suffered in the case of Cortes, of the seaman that died.

Now, the finding in this case was that the refusal of the shipowner to furnish maintenance and cure did not cause this seaman any physical or mental injury.

In fact, the requiring of him to go to work was probably a very good therapeutic thing for him to do.

If he had suffered any injury, he would have a right of action but he has suffered none.

Now, the Court of Appeals below rested its decision primarily on a very learned decision, handed down by the Second Circuit, Wilson against United States, a decision written by Learned Hand, Judge Lumbard and Judge Medina in which they held that the right of maintenance was contractual.

And it was so contractual that the seaman had a corresponding duty to mitigate.

And in that case which I say was on all fours with this particular case, the Second Circuit said that the seaman’s earnings, I believe in that case is a dishwasher, were to be credited against the $8 a day that would do him for maintenance.

Potter Stewart:

By contractual, you mean it’s an implied term which the law imposes upon a contract with seaman’s contractual record (Inaudible)

Walter B. Martin, Jr.:

That’s correct, sir.

It’s an implied provision of the contract.

Potter Stewart:

It’s not contractual.

It’s not — not subject to its expressed (Voice Overlap)

Walter B. Martin, Jr.:

No.

It is contractual when it — when he signs his shipping articles or —

Potter Stewart:

Yes.

Walter B. Martin, Jr.:

— he signs his employment contract —

Potter Stewart:

It’s implied term which the law imposes upon that contract (Voice Overlap) —

Walter B. Martin, Jr.:

Right.

Though it is not written in the contract, it is an implied provision of the contract.

Potter Stewart:

Right.

And — well, I interrupted you, may I ask you this.

Is it your understanding that maintenance is that — what maintenance is supposed to be cover is his board and lodging pending cure?

Walter B. Martin, Jr.:

That’s correct, sir.

Potter Stewart:

Historically that was it, was it?

Walter B. Martin, Jr.:

That’s correct, sir.

Potter Stewart:

So that when you’re an inpatient in the hospital, you get both maintenance and cure.

Walter B. Martin, Jr.:

Well, that is correct, sir.

Potter Stewart:

And it’s only when you’re an outpatient that maintenance is a separate item, becomes —

Walter B. Martin, Jr.:

That’s correct, sir.

Potter Stewart:

(Inaudible)

Walter B. Martin, Jr.:

This Court not — excuse me, sir.

Potter Stewart:

Well, let me ask you then.

How long does it — how long does this duty last to pay maintenance in your view?

Walter B. Martin, Jr.:

The right to pay maintenance lasts —

Potter Stewart:

The duty to pay maintenance, the duty of the shipowner.

Walter B. Martin, Jr.:

Until the man is fit for duty.

Potter Stewart:

Fit for duty is what?

Walter B. Martin, Jr.:

Fit for duty for any duties as far as I’m concerned, fit to become gainfully employed.

He may never be fit for duty as a seaman.

Potter Stewart:

Yes.

Walter B. Martin, Jr.:

It can be argued that it last in — well, I — that — that is it, until he’s fit for duty — or —

Potter Stewart:

Or —

Walter B. Martin, Jr.:

— he has reached the point of maximum cure —

Potter Stewart:

Or — yes, that’s right or —

Walter B. Martin, Jr.:

Of course if he’s never —

Potter Stewart:

— until he’s determined that he was not curable.

Walter B. Martin, Jr.:

Can’t do anything else for him.

And you still (Voice Overlap)

Potter Stewart:

Historically that was it?

Walter B. Martin, Jr.:

Right, sir.

Potter Stewart:

And the question is fit for duty is what?

And if this is true, I should think your — your answer would lead you to the conclusion that once this man began working as a taxi driver, you didn’t owe him any maintenance.

Walter B. Martin, Jr.:

Well, that was their argument before the District Court.

Hugo L. Black:

Where is it?

Do you have any cases on that?

Walter B. Martin, Jr.:

On which, sir?

Hugo L. Black:

Fit for duty before what?

It says if he must be fit for duty as a taxicab driver, he loses to get — no more maintenance.

Walter B. Martin, Jr.:

There are no cases from this Court to that effect, sir.

William J. Brennan, Jr.:

Well, even in the (Voice Overlap) —

Hugo L. Black:

(Voice Overlap) cite — cases from any court?

Walter B. Martin, Jr.:

No sir, not up to that effect.

Hugo L. Black:

Have you seen any?

Walter B. Martin, Jr.:

No, sir, I have not.

Potter Stewart:

Well, would you be amazed if this man had got — gotten a job as Vice President of Ger — General Motors for a court and worked there for 20 years and it shown, he could never work as a sailor again, would you have been surprised if a District Court have said, “Well, you’re no longer entitled to maintenance by the shipowner?

Walter B. Martin, Jr.:

No, sir.

Hugo L. Black:

You think General Motors would take him?

Felix Frankfurter:

How about the other way around?

Earl Warren:

Yes, that’s what I was going to ask you.

Felix Frankfurter:

How about the other way around?

Suppose the — for some reason or rather he’s disabled to be a seaman, quite able to be an accountant on land or something.

Walter B. Martin, Jr.:

That is my argument, sir.

I say that, when this man is capable of doing any work of a remunerative nature —

William J. Brennan, Jr.:

Well, the Second Circuit did not go that far, didn’t they?

Walter B. Martin, Jr.:

No, they did not go that far, no, sir.

William J. Brennan, Jr.:

Well, there’s any authority that has gone that far?

Walter B. Martin, Jr.:

To my knowledge, there is none.

Potter Stewart:

You’re not going that far here?

Walter B. Martin, Jr.:

I would like to go that far.

Potter Stewart:

I’ve only suggested that you might (Voice Overlap) —

Walter B. Martin, Jr.:

I would like very much to go that far.

Potter Stewart:

But you — you’re not, that’s not your position.

Walter B. Martin, Jr.:

That is — is not the position I have taken in my brief.

Potter Stewart:

Right.

William J. Brennan, Jr.:

But you could (Voice Overlap)

Walter B. Martin, Jr.:

All I’m seeking is an affirmance of the court below.

William J. Brennan, Jr.:

You didn’t cross-petition then though?

Walter B. Martin, Jr.:

No, I did not sir.

There is one other question that Mr. Morewitz has presented and that is the question of attorney’s fees.

Question is so well settled in our law that I feel it hardly bear its argument before this Court.

I have cited in my brief ancient cases of this Court that attorney’s fees are not awarded in cases of contract and that’s what this is.

This is a suit under a contract, under the implied agreement of a shipowner to furnish maintenance and cure.

Certainly, even in tort actions except perhaps third party actions, there is no law in our country.

There is in England which would permit the awarding of attorney’s fees.

Hugo L. Black:

But you’re invoking principles of equity, are you not allow this fellow (Inaudible) were which until recently I think that — probably is not — this law in any of the Circuit, is that it?

Walter B. Martin, Jr.:

Justice Black, I did not say that is a principle of equity.

I say that is a principle of contract that — as a provision of the contract —

Hugo L. Black:

Well you think — you think that should be bound by the rigid principle to contract law?

Is that your argument?

Walter B. Martin, Jr.:

That is my argument here, that he has the duty to mitigate.

In other words, if — in the landman’s terms, if he had a lease of a house at a $100 a month and he refused to pay the rental and the landlord went out and required another rental, certainly, the man would be entitled to a settle.

Here, the man has worked.

It has done him no harm.

Hugo L. Black:

This is a doctrine that grew as you know out of trick principles of contract law but whatever it is, it was a theory that they owed this man long vintage start to pay him equity in good conscience.

Now, if that’s the spirit of the exception, why would your client be entitled to get the doctrine that drew up $8 a week set on and yet standby and refuse to pay him a cent of what he owes him at a time when according to the contemplation of this law which granted this, he is greatly in need of the house.

Walter B. Martin, Jr.:

Your Honor to hold otherwise would open the whole feel of maintenance to considerable abuse on the part of the seaman.

Hugo L. Black:

Or what about considerable abuse on the part of the employer not giving it to him at the time you need him, when he desperately needs it, maybe this man didn’t need to (Inaudible)

Walter B. Martin, Jr.:

Of course, as they say in Cortes, as this Court held at Cortes, the shipowner takes that particular chance.

In other words, if the seaman’s health is injured or if his illness is aggravated, then he must answer in damages that are ascertainable.

Hugo L. Black:

Well, if he’d asked him damages first, aggravation due to the lack of doctor’s treatment, why shouldn’t he answer the aggravation of damages to the man due to the fact that he hasn’t go to pay out his money to get a lawyer rather than (Inaudible)

Walter B. Martin, Jr.:

Because there again, there is no foundations in our law, I say —

Hugo L. Black:

You mean no precedent?

Walter B. Martin, Jr.:

That’s correct sir, for wanting attorney’s fees.

Felix Frankfurter:

Of the two — to be intermingled interchangeable namely, whether one erred to be a — a deduction officer at mitigation call it what you will if the fellow is actually earning therefore, he is — therefore maintenance would be a windfall for him in addition to what he’s earning and the question whether they should him counsel fee in court.

Of the two is — must I have decide both of those questions the same way?

Walter B. Martin, Jr.:

No, sir.

Walter B. Martin, Jr.:

I think if you decide the first question, if you decide the first question that the shipowner is entitled to have the maintenance mitigated, then the second question is moot.

Potter Stewart:

Why?

Felix Frankfurter:

Why?

I don’t follow that at all.

Why is that moot?

Walter B. Martin, Jr.:

It is our —

Felix Frankfurter:

If he’s entitled to mitigation, still the mitigation means something into — deducted from something else, I say he’s qualified but he still have to go to court and sue that part of it to which he was entitled and that was withheld from him, and he had to hire a lawyer so why shouldn’t he be compensated for that?

Walter B. Martin, Jr.:

Well, there it is —

Potter Stewart:

(Voice Overlap) why is that a separate and not moot question?

Walter B. Martin, Jr.:

Well, that would be a separate question, sir.

You are correct.

Potter Stewart:

Well, is it your point that he was making more than $8 a day as a taxi driver?

Walter B. Martin, Jr.:

No, no, no.

Potter Stewart:

I can understand.

If that were the case then —

Walter B. Martin, Jr.:

No —

Potter Stewart:

— this could be moot.

Walter B. Martin, Jr.:

No.

He was making —

Potter Stewart:

— (Voice Overlap) a complaint.

Walter B. Martin, Jr.:

— making less.

And I stand corrected on that that there are two separate questions.

Separate —

William J. Brennan, Jr.:

You’re not contesting the claim to the extent of the judgment allowed it below.

Walter B. Martin, Jr.:

No, sir.

All we are seeking is an affirmance of the judgment below.

We are not cross petitioners.

Felix Frankfurter:

But there is involved a question of the right to counsel, do you think?

Walter B. Martin, Jr.:

There is.

Felix Frankfurter:

And what is your — well, maybe I’m out of order but what — when you come to it, what is your answer to Mr. Morewitz’s question — contention that — with reference to the admiralty cases which were referred to in the Ticonic case namely that’s a matter of discretion.

Walter B. Martin, Jr.:

I did not believe Your Honor that those cases are applicable to the admiralty law today.

The only cases I can find that had any indication of award of attorney’s fees and admiralty related to in rem cases against the vessel itself —

Felix Frankfurter:

Related to what?

Walter B. Martin, Jr.:

In rem cases —

Felix Frankfurter:

Oh, yes.

Walter B. Martin, Jr.:

— again — cases against the vessel itself, prize cases.

Felix Frankfurter:

That didn’t — Justice Story didn’t — the Story opinions didn’t solve them, is it?

Walter B. Martin, Jr.:

In the —

Felix Frankfurter:

Did they?

In the Appollon and what (Voice Overlap) —

Walter B. Martin, Jr.:

In the Appollon I believe was a prize case, sir.

Felix Frankfurter:

Well —

Walter B. Martin, Jr.:

It was a seizure case.

Felix Frankfurter:

But judge — Justice Story said explicitly it’s true on the prize side and on the instance side.

And it does — I don’t understand why that isn’t good sense as admiralty become more rigid since it’s a (Inaudible)

Walter B. Martin, Jr.:

No, I don’t —

Felix Frankfurter:

Justice Story pointed out, there was no statute.

That admiralty therefore was free to do what it was free to do of all this private difficulty of — of interested in Mr. Morewitz (Inaudible) pointed that admiralty has more equity power from equity (Inaudible) we encounter the phrase, there are no equity powers in admiralty, I never could understand that either reluctantly I don’t understand.

But I don’t — has there been a limitation of those early decisions of Story’s?

Walter B. Martin, Jr.:

No, sir, I expect —

Felix Frankfurter:

No.

Walter B. Martin, Jr.:

— it has none other than the —

Felix Frankfurter:

It happens and I’m accountable for not having referred to them in Ticonic.

Walter B. Martin, Jr.:

Other than been limiting them within the framework of the particular case in bar itself.

Felix Frankfurter:

Well, in particular cases, I understand that.

It may well be, I’m sure there are particular cases where attorney’s fees as part of course, as part of damages, whatever you can call them, were not allowed or were disallowed.

But I do not know and I should be surprised if it is so that the direction of thought of those cases of Story’s, and I don’t suppose we’ve had a great admiralty judge since his time, laid down namely, that it’s been into discretion of admiralty and why shouldn’t it be?

Admiralty is a very imaginative branch in the law.

Walter B. Martin, Jr.:

I think it should not be sir, because I think it would open the — they fill up to tremendous abuse as far as the seaman is concerned.

Why should the seaman today be placed on a pedestal over and above any other working man in our society of the day of considering the seaman as they want that the admiralty should long have passed?

Felix Frankfurter:

Well —

Walter B. Martin, Jr.:

Those —

Felix Frankfurter:

maybe —

Walter B. Martin, Jr.:

— those were the days when they had sailing ships and they impress people on vessels and they —

Felix Frankfurter:

Well maybe so, but were talking about the power of a court charged with enforcing ancient rules that had come down today namely, certain protective rules in favor of a seaman and he’s been brought into court, he’s been brought into court for non — for the failure of the respondent here to fulfill at least certain obligations, is that right?

Walter B. Martin, Jr.:

That’s correct, sir.

Felix Frankfurter:

So that he’s been brought into court and why should the admiralty court of today — I think you’re (Inaudible) that I see in this case, why should that involve whether we have to decide the abstract question whether a seaman is still awarded for court.

I have a good feel of sympathy with your objection to the incantation of that phrase in these days when the situation was different but that isn’t the problem.

Walter B. Martin, Jr.:

It’s the basic —

Felix Frankfurter:

The problem is whether he was brought in to admiralty with an ancient rule of admiralty that the admiralty — admiralty has discretion to decide whether you should say — whether the withholding party should pay the expenses of a lawsuit, it’s as simple as that.

Walter B. Martin, Jr.:

Your Honor, as to this phrase, award of admiralty, I do think it is an underlying issue in this case.

It’s the underlying issue in —

Felix Frankfurter:

All depends — depends how we made the orders and how we decide this case on the other issues.

That’s why I wanted a separate the issue.

They’re very different issues for me.

Walter B. Martin, Jr.:

In conclusion Your Honor, I would just like to rephrase my argument.

One, the right of maintenance is contractual.

It’s an implied provision of the contract.

You want me to sit down?

Earl Warren:

No, no, no, no, no.

Go right ahead, your time —

Walter B. Martin, Jr.:

I thought my time was up.

Earl Warren:

No, your time is not up.

I was just —

Walter B. Martin, Jr.:

It’s an implied provision —

Earl Warren:

— listening to the —

Walter B. Martin, Jr.:

— of the — thank you, sir — it’s an implied provision of the contract.

And being such, the seaman should mitigate the amount due if he can do so without injury to his health.

Potter Stewart:

Now, it’s your — perhaps, this isn’t presented by this case, but is it — generally, in the law of damages in contract actions, it’s the duty to mitigate.

But you don’t, I suppose, have to make that argument here because the fact is, he did.

Walter B. Martin, Jr.:

He did.

Potter Stewart:

Get extra earnings and so you say, at least, when he has in fact mitigated his damages, he should — the employer should not give him a windfall.

Walter B. Martin, Jr.:

That’s correct, sir.

Potter Stewart:

Should not be required to give him a windfall.

Walter B. Martin, Jr.:

That’s correct, sir.

Potter Stewart:

That it would follow, I suppose from your argument, the logic of your argument, if this is a contractual action that he has a duty to mitigate.

Walter B. Martin, Jr.:

That is correct, sir.

And the Second Circuit has so held that the seaman has a duty to mitigate, has a duty to work if he’s able to work even though he is not fit perhaps to go back to sea.

Felix Frankfurter:

But (Inaudible)

Potter Stewart:

But what if he didn’t — what if he didn’t under your theory?

Walter B. Martin, Jr.:

Under my theory, then they should be offset of the reasonable amount that he could have earned.

Potter Stewart:

That he could’ve earned in the exercise (Voice Overlap) —

William J. Brennan, Jr.:

But how do — how was that established?

Walter B. Martin, Jr.:

Well, that was in — in both the Perez and in the Wilson case.

I believe that was discussed by the Second Circuit.

Potter Stewart:

Can you find those concepts in measuring damages in ordinary contractor (Inaudible)

Walter B. Martin, Jr.:

That’s correct, sir.

Potter Stewart:

Sometimes it’s difficult to establish but the concept is nevertheless there.

Walter B. Martin, Jr.:

That’s right, sir.

Felix Frankfurter:

I submit also there’s another word of controversy, whether this is a matter of contract and not a contract, the kind of contract that Justice Stewart indicated a little earlier.

When we say it’s a matter of contract, what we mean to say is that the law infuses that condition into the contract, where the contract says nothing about it, is that what it means?

Walter B. Martin, Jr.:

That’s correct, sir.

Felix Frankfurter:

And he derives it from a — from policy, it goes back to whatever it is, pre-tries the event from 11th A.D. century so it’s just the way of saying the same thing and with one legal concept rather than other that’s imposed by law or being imposed by law, it’s implied into whatever is written in the articles of — when they sign out —

Walter B. Martin, Jr.:

That’s correct, sir.

Felix Frankfurter:

— they sign on.