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He is also seeking damages by way of attorney's fees for failure to pay maintenance and cure. Recovery is sought solely under the principles of general maritime law. Since the tugboats are utilized seven days a week and 24 hours a day, George works a hour shift and is off 24 hours; then 12 hours on and 48 hours off; all of which is the equivalent of a hour workweek. His time off is his own and any recall for extra duty during this time is purely optional on his part.

He is paid by the hour with no meals and lodging being provided by the company.

For the past 15 years George has been afflicted with recurrent sores in his mouth and gums. He has treated himself for this condition with warm salt water rinses, such treatments being taken both on board the tugs and at home. In June while serving as pilot on the Tug A. His condition became so aggravated that George went to see Dr. Kupcuoglu, a private ear, nose and throat specialist, who took a biopsy of the lesion. George was given the same diagnosis and advised of alternative remediesradical surgery or conservative treatment by way of x-ray therapy.

Charles, who represented himself as having been a doctor on a transoceanic passenger liner, told the plaintiff he would perform the surgery, if such course was undertaken.

Due to the very serious nature of the operation which in effect amounted to the removal of one-third of the face, as explained by Dr. Charles to his wife, George elected to undergo the x-ray treatment. Charles himself might very well have been qualified to perform the operation, none of this information or special qualifications was relayed to the plaintiff at the time of his decision.

The hospital at Clifton Forge was without the proper facilities to administer radiation therapy, so George returned to his home in Newport News, Virginia. Thompson, his family physician.

Realizing the gravity of the situation, Dr. Thompson sent the plaintiff to Dr. Charles Horton, a highly qualified plastic surgeon in Norfolk. It was Dr. Horton's considered opinion that such an operation should be performed only by a qualified plastic surgeon due to the extensiveness, the anatomical location, and the pathological grade of the disease; and he was quite emphatic about not having such an operation performed at the Clifton Forge hospital. Since Dr. Horton believed the x-ray treatments advisable prior to any operation, George pursued that course of action. As a result of such treatments, there was an apparent remission of the disease for six months.

Early in FebruaryGeorge noticed a lump in his neck and returned directly to Dr. Horton, without notifying the company boatmaster. The plaintiff was told that, unless he was operated upon immediately, he could not expect to live longer than two months.

There was much discussion at that time by George and Dr. Horton as to where the operation should be performed, with some mention of the United States Marine Hospital in Norfolk. Although these operations had been performed at the Marine Hospital, and in all probability Dr.

Horton would be the operating surgeon, Norfolk General was deated as the hospital of choice since this was the only location at which the post-operative period of intensive care with constant supervision was available, as required by these critical cases. While it is true that George had the authority to issue "hospital tickets" to members of his crew allowing them to enter the Public Health facilities in Norfolk, only the boatmaster could do the same for him as a pilot. The issues, stated broadly, are simply: Whether George is a seaman who is due maintenance and cure for this malady; and, if so, whether his conduct amounted to such willful misconduct as to forfeit his rights.

Maintenance and cure are ancient maritime remedies which were founded upon humanitarian considerations of the unique perils of the traditional "blue water sailors. United States, U. Gordon, Fed. They were developed to ensure the welfare of these individuals being injured or falling ill far from home.

However, courts have refused to deny recovery to a seaman "merely because his voyages are short, because he sleeps ashore, or for other reasons his lot is more pleasant than that of most of his brethren. See, e. Thus, the mere fact that George was a "seaman" for only 12 hours at a time is not fatal to his claim for maintenance and cure. Since there is no distinction among types of seamen, the plaintiff in this case must bear the ordinary burden of proof before there can be any recovery.

He must allege and prove facts bringing himself within scope of the remedy. Prendis v. Central Gulf Steamship Company, F. The essential factors of a maintenance and cure case are that he was a seaman and secondly, that his illness occurred, was aggravated, or manifested itself while in the ship's service. No question has been presented as to George's status as a seaman in the general sense.

The controversy lies in the interpretation to be placed on the second requirement. The phrase "in the service of the ship" has become one of art in this field. Since maintenance and cure has been characterized as an implied contractual obligation, Aguilar v. Standard Oil Co. It is clear, however, that the illness or injury need not arise out of the seaman's employment, nor need it rest on the culpability of the employer.

Calmar Steamship Corp. Taylor, U. Therefore the Supreme Court, in keeping with the Norfolk Virginia man seeks ohio nature of the remedy, has liberally construed the phrase so as to encompass a seaman who is ashore on authorized leave tending to purely personal business. Aguilar v. Additionally, a seaman is deemed to remain "in the service of the ship" as long as he is generally answerable to the call of duty. Farrell v. United States, supra at69 S.

Due to the nature of his employment, George no longer remains in the ship's service when he leaves his vessel at the completion of his shift. It would be a contravention of the basic principles underlying the shore leave cases to hold that he was on authorized shore leave every night upon returning home.

Such a seaman is in a sense serving the ship while ashore since the time off makes him a more efficient crew member; not to mention the fact that no one would become a sailor if he were denied shore leave. In the present case, the purpose for leaving every night is merely to allow the plaintiff to live a normal home life, and therefore cannot be said to serve the ship to such an extent as to justify his absence on shore leave.

Sellers v.

George v. chesapeake & ohio railway company, f. supp. (e.d. va. )

Dixilyn Corporation, F. Likewise the plaintiff was not answerable to the call of duty during his off hours. While there is some indication of the willingness of George to return if called, this is immaterial. In order to raise the obligation of maintenance and cure on the part of an employer, there must be a corresponding obligation by seamen to return if called.

It is because the seaman remains bound to the vessel that the employer must care for him even while away from the ship.

Baker v. Ocean Systems, Inc. Socony Mobil Oil Company, F. Since George no longer remains in the ship's service once he leaves the vessel, in order to bring himself within the protection of maintenance and cure his cancer must have either "occurred, become aggravated, or manifested itself" while he was on board his vessel.

The application of this test is complicated by the fact that the plaintiff's maladies are merely manifestations of a slow and insidious disease from which he apparently has been suffering for 15 years. This is not the case of some traumatic accident which originates at an identifiable point in time or an illness whose first manifestation is disabling. Obviously this malignancy was present during his daily periods of being in the service of his ship and, therefore, George is entitled to maintenance and cure.

Petition of the United States, F. Even though a plaintiff has shown himself to be entitled to maintenance and cure, he may forfeit this right by his own willful misconduct. Warren v.

However, such a defense must be affirmatively alleged and the burden of proof rests upon the defendant. Gulledge v. United States, F. It has been contended that the election of George to be operated upon by a private physician in a private hospital amounted to such willful misconduct as to bar any recovery for maintenance and cure. As a general rule where an employer has offered hospital services which are voluntarily refused by the seaman, any obligation of maintenance and cure is relieved. Murphy v. American Barge Line Co.

While this rule is not applied inflexibly, Rodgers v. United States Lines Co. Palmer Shipping Corp.

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Truman v. Therefore, George's conduct must be examined in light of all the surrounding circumstances to determine whether it was justified or merely some purely personal choice. Roberson v.

The important consideration is his compliance with the company regulations upon determining the seriousness of his illness. Likewise, the plaintiff's decision to undergo radiation therapy should not prejudice his rights. Normally the advice of an expert must be followed, except when grave and severe operations are involved.

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