VELLA v. FORD MOTOR CO.

Transcript: 

Argument of John A. Mundell, Jr.

Chief Justice Warren E. Burger: Mr. Mundell, I think we can resume now in your case, Vella against Ford Motor Company.

We show you as having 23 minutes remaining.

Mr. John A. Mundell, Jr.: Thank you, Your Honor.

Mr. Chief Justice and may it please the Court.

At the conclusion of yesterday afternoon's session, I was reciting the facts of this case and I will not go over those again for they are set forth in the counter statement of facts in our brief.

I will continue by saying that in February of 1970, the petitioner filed a suit in the District Court for the Eastern District of Michigan, Southern Division with a count for negligence under the Jones Act and a count alleging unseaworthiness of the vessel under the General Maritime Law and a count for maintenance and cure.

The jury decided adversely to the petitioner on the issue of liability, finding the accident was due to his sole negligence.

They also found that petitioner was entitled to a maintenance and cure award for the period from June 29, 1968, the day he left the vessel until June 29, 1970.

Respondent moved for judgment notwithstanding the verdict and petitioner moved for attorney's fees and interests and costs.

Both motions were denied by the District Court.

Petitioner then appealed to the Sixth Circuit as to the first cause of action pertaining to the negligence under the Jones Act and to unseaworthiness under the General Maritime Law of the jury verdict of no cause for action.

Respondent filed with an appeal as to the propriety of the maintenance and cure award.

The Sixth Circuit Court of Appeals affirmed the jury verdict of no cause for action as to the liability question and reversed as to the maintenance and cure question.

On appeal, respondent argued at the trial level that petitioner went to great lengths to show that he suffered the vestibular disorder or condition when he left the vessel on June 28 or June 29, 1968 and that such was due to the accident which he alleged occurred in early April of 1968.

Quoting from the opinion of the Sixth Circuit which states respondent's position with succinctness, we read, “The defendant contends that the plaintiff’s injury was permanent from the date of the accident and was never susceptible of curative treatment.”

Dr. Heil testified that although he could not determine from his examination what had caused the vestibular disorder, a severe blow to the head could have caused his problem.

Presumably, the jury concluded that it was plaintiff's fault that caused the disorder and the disabling dizziness and headaches.

However, the evidence clearly shows that a vestibular disorder is not a condition that can be cured or improved by treatment.

When asked whether plaintiff might be cured by treatment, Dr. Heil, testified, “No, not really.

Treatment is primarily symptomatic for this condition.

That is, people with a vestibular disorder are apt to have intermittent episodes of dizziness which on occasion are somewhat more severe.

Treatment is limited to those times when the patient is particularly dizzy.

They can obtain some symptomatic relief with medication.

Other than that, there is no specific cure or treatment.”

No evidence was introduced in conflict with this conclusion of Dr. Heil.

The record in this case does not permit an inference other than that plaintiff's condition was permanent immediately after the accident.

It is not even alleged that plaintiff has ever received treatment for the condition itself although he has received medicine for the symptoms of dizziness and headaches, that one may require or be helped by treatment for the symptoms of a disorder does not qualify him for maintenance and cure, Farrell versus United Stated at 519.

Justice Potter Stewart: Mr. Mundell.

Mr. John A. Mundell, Jr.: Yes.

Justice Potter Stewart: Take the case that your brother opened with yesterday.

Let's assume that a seaman has both of his legs cut off.

Mr. John A. Mundell, Jr.: Yes, sir.

Justice Potter Stewart: Amputated in an accident in the service of the ship.

Now clearly, there is no cure for that.

If his legs are gone, they're gone.

Mr. John A. Mundell, Jr.: Yes, sir.

Justice Potter Stewart: But equally clearly, there are measures that can be taken in the way of artificial limbs and his training to use them to at least be palliative of the consequences of the double amputation.

But would it be your claim that since the double amputation is incurable at the moment it occurs that there's no right whatsoever on the part of the seaman to maintenance and cure?

Mr. John A. Mundell, Jr.: No, I would not say that, Your Honor.

Justice Potter Stewart: Why not?

That's what your argument is I think.

Mr. John A. Mundell, Jr.: No, there is no treatment for the vestibular disorder.

Justice Potter Stewart: There is no treatment for a double amputation.

You can't put back those legs.

Mr. John A. Mundell, Jr.: No, but I think --

Justice Potter Stewart: All you can do is deal with the symptoms of it.

Mr. John A. Mundell, Jr.: A reasonable conclusion I would think Your Honor would be that the treatment would consist of the fitting of the artificial limbs.

Justice Potter Stewart: Then wouldn't likewise the treatment here consist of medicating the impact of the symptoms even though it's not curable.

Mr. John A. Mundell, Jr.: No, I --

Justice Potter Stewart: What's the difference?

Mr. John A. Mundell, Jr.: I think in the case of the double amputation, once the legs are fitted, the maintenance cure would end.

In this case, maintenance and cure where he's just being treated for his headaches and dizziness could go on ad infinitum and the cases are quite clear that maintenance and cure is not appendant for life and that's what it would amount.

Justice Harry A. Blackmun: Let me give you another example to follow through on Justice Stewart's question.

Suppose in the middle of a long voyage, a patient has a diabetic flare-up.

I think this can't be cured but is it your position that the shipowner is not obligated to afford him such palliative treatment as is available by insulin?

Mr. John A. Mundell, Jr.: I think, if the Court pleases, Calmar versus Taylor says that the seaman is entitled to maintenance and cure for a reasonable period of time after the voyage during which time care and nursing might bring him to a point of maximum cure for his condition.

Justice Potter Stewart: How do you distinguish between medical treatment that is curative and palliative?

Isn't there a gray zone often as to whether has one or the other?

Mr. John A. Mundell, Jr.: I think, if the Court please that the interpretation of the word palliative in the cases has been stated to mean to ease without curing.

That answers your question, Your Honor.

Justice Potter Stewart: I suspect that oftentimes a position isn't able to draw that line of distinction with great accuracy.

Mr. John A. Mundell, Jr.: Likely, that's correct, Your Honor.

Justice Harry A. Blackmun: Do most ships apply in the Great Lakes, have doctors aboard them or is it always a question of wait until you get to the public health service hospital at the end of the voyage?

Mr. John A. Mundell, Jr.: It's -- the voyages on the Great Lakes, Your Honor are very short.

None of the ships to my knowledge have doctors aboard.

On occasion, on an extreme case, the Coast Guard will come up by helicopter and take the man off the ship.

But otherwise, because of the shortness of the voyages which may be anywhere from let's say four hours to Toledo from Detroit to two and a half days to Duluth, they rely on either putting the man ashore at the port when they arrive or at various ports between the port of departure and port of destination.

For example, leaving Detroit going to Duluth, a man might be put off at Sault Ste. Marie to the public health doctor there.

Justice Harry A. Blackmun: So that in this case, the injury having occurred in early April and the plaintiff having been discharged from the service the end of June, there presumably would have been a series of voyages?

Mr. John A. Mundell, Jr.: Yes, Your Honor, at that particular time, the Robert S. McNamara was engaged solely in trips between Detroit and Toledo.

Justice Harry A. Blackmun: Just back and forth?

Mr. John A. Mundell, Jr.: Back and forth from Detroit to Toledo which is in good weather --

Chief Justice Warren E. Burger: That's about 40 miles, isn't it?

Mr. John A. Mundell, Jr.: Yes, sir, 60 miles I believe.

Chief Justice Warren E. Burger: 60.

Mr. John A. Mundell, Jr.: -- and he could receive treatment at either end.

Justice Lewis F. Powell: Mr. Mundell.

Mr. John A. Mundell, Jr.: Yes, Justice Powell.

Justice Lewis F. Powell: Following up the questions that were asked you by Mr. Justice Stewart and Mr. Justice Blackmun, I understood you to say that maintenance and cure did not last for life under any circumstances.

The test being for a reasonable period of time, I have not read the cases that might shed any light as to what benchmarks are examined to determine what is a reasonable time.

Do cases shed light on that?

Take the case Mr. Justice Stewart put to you of a young man who lost both legs, or the man who had emphysema for example that would be with him for life.

How does the Court determine what is a reasonable time?

Mr. John A. Mundell, Jr.: It depends on the facts of the case of course.

But I believe that the courts have looked at the nature of the treatment such as Mr. Justice Stewart mentioned, the man with the legs off.

They very likely would permit the maintenance and cure until a man was fitted for artificial limbs.

In the case of a man with let's say chronic bronchitis, for example, the court says there's nothing more that can be done for him.

He's reached maximum cure and they stop it.

Chief Justice Warren E. Burger: The cutoff point is as I think you stated the point where the maximum cure has been reached.

Justice Lewis F. Powell: That's the rule.

Mr. John A. Mundell, Jr.: Yes, Your Honor.

At point where no further treatment can improve a condition, that's the statement from the cases.

Justice Potter Stewart: But palliative treatment could make the patient more comfortable and perhaps prolong life.

But that would not be included?

Mr. John A. Mundell, Jr.: No sir.

Farrell says not.

Along the same lines of the questions put to me a moment ago, in its opinion, the Court set forth the criteria for the payment of maintenance and cure which is in accordance with the overwhelming weight of judicial authority.

In discussing the applicable law, the Court stated, “Under the Maritime Law of the United States, a shipowner is liable to a seaman for maintenance and cure regardless of the negligence of either party if the seaman is injured while on the service of the ship citing Aguilar versus Standard Oil 318 U.S. 724 1943.

The duty of the shipowner to maintain and care for the seaman exists only until a seaman is cured to the maximum extent medically possible, Farrell versus United States 336 U.S. 511, 518 1949.”

In brief, once the seaman reaches “maximum medical recovery”, the shipowner's obligation to provide maintenance and cure ceases, Vaughan versus Atkinson 369 U.S. 524, 531 1962.

Justice Potter Stewart: May I ask you Mr. Mundell?

Mr. John A. Mundell, Jr.: Yes, Your Honor.

Justice Potter Stewart: When was it that -- on what exact date was it that Dr. Heil diagnosed -- announced his diagnosis?

Mr. John A. Mundell, Jr.: March --

Justice Potter Stewart: That this was incurable.

Mr. John A. Mundell, Jr.: I believe it was March 27, 1972, Your Honor.

Justice Potter Stewart: Was it that date up to which the jury awarded maintenance and cure?

Mr. John A. Mundell, Jr.: No, Your Honor, they awarded maintenance up to June 29 of 1970.

The reason I recited the facts of the case is there seems to be no basis or justification for the period selected by the jury for the payment of maintenance.

Justice Potter Stewart: Well, did anyone else -- did anyone other than Dr. Heil ever address the question whether or not the disease was incurable?

Mr. John A. Mundell, Jr.: No, sir.

Justice Potter Stewart: The first date that he did was March 27, 1972?

Mr. John A. Mundell, Jr.: Yes, sir.

Justice Potter Stewart: Why doesn't that fix the point up to which he's entitled to maintenance and cure?

Mr. John A. Mundell, Jr.: Because I believe even if the man had been examined the day he left the ship and the vestibular disorder --

Justice Potter Stewart: That was June 29, 1968 was it?

Mr. John A. Mundell, Jr.: Yes, sir and the vestibular disorder found, there was no cure then.

There was no cure when Dr. Heil diagnosed it as incurable.

Justice Potter Stewart: But the fact is, no one knew that put in your record, isn't that so?

Mr. John A. Mundell, Jr.: That it was incurable?

Justice Potter Stewart: Yes.

Mr. John A. Mundell, Jr.: No, Your Honor because the respondent's doctor and the public health on three occasions declared the man fit for duty and nothing was heard from the man again until February of 1970 when suit was instituted.

Justice Potter Stewart: Well, if the diagnosis of Dr. Heil is correct, then the U.S. Public Health Service pronouncements that he was fit for duty were incorrect?

Mr. John A. Mundell, Jr.: I would say so.

I would qualify that with this remark.

If the Court please, on the last visit on September 30 of 1968, the public health doctor said if symptoms persist, the patient should return and a complete workup would be performed.

The man never returned.

It's difficult to say at this point if the man had returned if they would not have conducted this test that would've found the condition.

Justice Potter Stewart: It seems to me, that's a jury argument.

The jury decided against you on this?

Mr. John A. Mundell, Jr.: Yes.

Justice Potter Stewart: And I take it your position is that if the disease cannot be cured, then though it takes 10 years to determine that, he still is not entitled to maintenance and cure.

Mr. John A. Mundell, Jr.: I would say so, Your Honor.

Justice Potter Stewart: Now, if you're wrong about that, Mr. Mundell, in any event, I take it, even if the petitioner were entitled up to March 27, 1972, the jury awarded only up to some time in 1970, was it?

Mr. John A. Mundell, Jr.: That's correct, Your Honor.

Justice Potter Stewart: And he never appealed from the jury limitations in 1970.

Mr. John A. Mundell, Jr.: That's right, there was no appeal on the jury award.

Justice Potter Stewart: So I take it your position would be in any event, he's entitled to nothing more than what the jury gave him.

Mr. John A. Mundell, Jr.: Absolutely.

Our position is he is entitled to nothing.

Justice Potter Stewart: I know.

Justice William H. Rehnquist: Mr. Mundell, supposing that at the conclusion of a voyage a man has a back complaint which he claims was incurred while in the ship's service and goes into a hospital and they keep him there for about three weeks.

Mr. John A. Mundell, Jr.: Yes, sir.

Justice William H. Rehnquist: And finally say, well there's nothing we can do for you.

It's a partially slipped disc or some of that but there's nothing more we can do for you here. Shouldn't he be entitled to maintenance and cure at least during the time it takes to --that he submitted that diagnostic procedure?

Mr. John A. Mundell, Jr.: No, Your Honor because maintenance and cure is not payable when the seaman is an inpatient in a hospital because he is in effect receiving his maintenance and cure.

He's being cared for there.

Justice Potter Stewart: Yes, it is payable in that form, is what you really mean.

Mr. John A. Mundell, Jr.: Yes, sir, in other words, the shipowner is not paying it.

It's being provided him by the Public Health Service.

Justice William H. Rehnquist: But he has no claim to money for that period of time over and above the hospital facility.

Mr. John A. Mundell, Jr.: No, sir.

Justice Potter Stewart: On the other hand, they wouldn't -- it's not your claim that he would have to pay for that three-week period?

Mr. John A. Mundell, Jr.: No, sir.

Public health hospitals are available to merchant seamen free of charge because initially, the public health hospitals were established with moneys provided by the merchant seamen at the initial inception of the public health hospitals and commonly referred to as the marine hospitals.

So from that time on, they've been entitled to free care public health.

Justice Potter Stewart: Which is at taxpayer's, not shipowner's expense?

Mr. John A. Mundell, Jr.: Yes, sir.

Justice Potter Stewart: Suppose the thing were so -- such an emergency that he were taken to a private hospital.

He wasn't near a public health institution, would he have to disgorge then or he himself have to pay if it turns out that his situation is incurable?

Mr. John A. Mundell, Jr.: Not necessarily, Your Honor.

If the man is taken off the ship to a hospital other than the public health, public health has told the shipowner to advise them immediately and they will authorize the attention.

But if for some reason, the public health is not notified, the shipowner will pick it up.

I would say from my own principle, they have on many occasions paid for private hospital care where the public health for one reason or another would not pick up the tab.

Justice Byron R. White: That would part of maintenance and cure?

Mr. John A. Mundell, Jr.: No, it's -- it would be an addition to the maintenance, Your Honor.

The shipowner would just assume that -- that cost.

Justice Byron R. White: Just for the good of the order?

Mr. John A. Mundell, Jr.: Yes, sir.

Justice Byron R. White: What if the seaman is treated at home by a doctor?

He's incapacitated.

He's at home like a lot of people are.

Mr. John A. Mundell, Jr.: I have seen cases such as that, Your Honor.

The shipowner will --

Justice Byron R. White: Let's say it's with a back and finally the doctor says, we just can't do anything about it?

Mr. John A. Mundell, Jr.: If the doctor says he's reached the point of maximum cure or maximum hospital benefits, then the case would say the maintenance and cure ceases but if --

Justice Byron R. White: Meanwhile, you say, he gets his maintenance --

Mr. John A. Mundell, Jr.: Yes, sir.

If the doctor sends a letter to the shipowner saying this man is under my care.

He's not fit for duty, can't return to work, the shipowner will pay the maintenance.

Justice Byron R. White: But it turns out that the doctor says, this is all -- since he left his ship, he's been in this condition.

Hopefully, I thought maybe I could do something but I can't.

So why wouldn't you argue that retroactively he's disentitled to any maintenance and cure?

Mr. John A. Mundell, Jr.: Because up to that time, the doctor thought he could do something and he was treating him.

But the point when the doctor said --

Justice Byron R. White: But he finally says it's incurable.

Mr. John A. Mundell, Jr.: Then the maintenance ends.

Chief Justice Warren E. Burger: He says I now, know it was incurable from the beginning?

Mr. John A. Mundell, Jr.: Then in effect the man has been paid money to which he was not entitled.

But I have never seen a case where they tried to recover that money.

Chief Justice Warren E. Burger: It wouldn't be?

Mr. John A. Mundell, Jr.: No.

Justice William J. Brennan: Why -- how is that different from this case?

Dr. Heil, as I understood what you said earlier, Mr. Mundell, is the only one to ever trust the question of whether it was curable or not.

And he didn't until March 27, 1972.

Mr. John A. Mundell, Jr.: Right.

Justice Potter Stewart: Was that during the trial?

Mr. John A. Mundell, Jr.: Yes, Your Honor, approximately.

Justice Potter Stewart: Was it actually after trial?

Mr. John A. Mundell, Jr.: Just prior to the trial and at the trial.

Unknown Speakers: (Voice Overlap)

Chief Justice Warren E. Burger: Pretrial proceedings.

Justice Byron R. White: Even from the fact that it was incurable from the day he left the ship, why then isn't he entitled from what you've just said up to that date short of -- fairly to appeal the jury verdict which gave him less to make this incurable?

Mr. John A. Mundell, Jr.: I think, Mr. Justice Stewart pointed out, if we had in fact paid the man the maintenance, it would just be money down the drain.

Chief Justice Warren E. Burger: But here you haven't paid it.

Mr. John A. Mundell, Jr.: We had not paid it because the man had been declared fit for duty on four occasions and nothing was heard from him until the date of trial.

Pardon me, until the date the suit was filed.

But if the man was in fact, not fit for duty when he left the ship, his condition was in fact not curable when he left the ship, then the man is not entitled to maintenance and cure under the case.

Justice William H. Rehnquist: Didn't a man named Dr. Burke examine him some time in 1970?

Mr. John A. Mundell, Jr.: Yes, that was the petitioner's doctor.

He is a neurologist.

He examined him.

He found a positive Romberg test.

As I mentioned yesterday, that's the test where the man stands with his eyes closed and there's a swaying which indicates a balance problem and he said that he thought there was vestibular damage.

He didn't know whether it was permanent or not.

He would refer it to an ear specialist which Dr. Heil was. I might also add that in January of 1970, petitioner was examined by Dr. Jimmy Benitez who conducted this sophisticated electronystagmography test which is a test that determines the vestibular disorder.

At that time in January 1970 and this is the petitioner's doctor, he found the disorder in January 1970.

When he had him examined by Dr. Heil in 1972 in preparation for trial, he referred him back to Dr. Benitez because he's an expert in Detroit on this particular test and again, Dr. Benitez found vestibular disorder.

Dr. Benitez was never called by petitioner at trial and had he been, he would have had to say that the condition was incurable in 1970, if we are to believe Dr. Heil's testimony which is unrefuted on the record.

Justice Byron R. White: Did you call him?

Mr. John A. Mundell, Jr.: No, we did not Your Honor.

Justice Byron R. White: Why?

Mr. John A. Mundell, Jr.: Because we had Dr. Heil and we had Dr. Benitez' records.

I might just conclude if the Court please by saying that the facts of the case at bar are such as call for a denial of the payment of maintenance and cure in any amount for the simple and cogent reason that petitioner's condition was incurable at the point of inception.

As to the attorney's fees requested in the petition which is an issue not granted by this Court, I would simply refer the Court to the decision of the district judge who denied the attorney's fees on the grounds that the shipowner --

Justice Byron R. White: Well, that's not here anyway.

Mr. John A. Mundell, Jr.: No, Your Honor.

Chief Justice Warren E. Burger: Thank you, Mr. Mundell.

Do you have anything further, Mr. Jaques?

I guess, you have about nine minutes left I think.

Argument of Leonard C. Jaques

Mr. Leonard C. Jaques: Mr. Chief Justice and may it please the Court.

In response to matters posed to my brother, in further response, in another situation where a seaman is inflicted with illness and is put ashore and under a circumstance such as this where a vestibular labyrinthine disorder is of a permanent nature, incurable and he is put ashore and incurs medical expenses.

I think Mr. Mundell has indicated well the shipowner though his benevolence even though it had no obligation would make those payments.

I submit that I would not place much stock on the benevolence of a ship owner who had no duty to make payments for medical expenses and I think that that really is the crucial part of the issue of this case.

When liability of a shipowner to pay a seaman's maintenance and cure commences and when it ends, the Sixth Circuit has taken the bold position.

And the position which unlocks -- submit humanism that if the incident renders the seaman unfit for duty at the occurrence and if it is found to be prominent, then the shipowner has no liability at all.

The maximum cure occurred, in the words of the Sixth Circuit, the moment that the trauma was inflicted.

The shipowner has stated here in response to a question with regard to this Court having stated in Farrell versus United Stated that there is no payment for maintenance and cure when the cure is palliative treatment.

Now, I say this, my brother has indicated in his brief on page 14 a quotation stating that the rule in effect as stated by this Court and then he cites -- and then he recites, “Now, I'm sure that this inadvertence on Mr. Mundell's part but this Court did not make ever that statement.

As a matter of fact, that statement came from a Texas Court -- Texas State Court in the case of Rey Lewis versus Isthmian Lines and that was the State of Texas -- it came out of the 1968 AMC 1688.

And so I submit that this Court has not made such a pronouncement relative to palliative treatment not being within the purview of the duration of liability of a shipowner to pay maintenance and cure.

Just further, the United State Public Health Service has a statutory duty to provide care for ill and injured seamen who are afflicted during the service of the vessel.

There is, however, a policy of the United States Public Health Service that if they find the seaman fit --for duty, and then 60 days expires or 90 days or whatever period that they have established, expires where the seaman has not been active, then he is no longer eligible and that was a situation with Vella and Vella thus became ineligible after that period of days and at that time it could have been 60 or 90, but whatever, it was period of days, and he was no longer eligible for public health --

Justice Potter Stewart: Well, he just left his job as a seaman, did he get another job somewhere?

Mr. Leonard C. Jaques: Never, ever since.

Justice Potter Stewart: How old the man is?

Mr. Leonard C. Jaques: He is about 44, 45 in that age vicinity.

Justice Harry A. Blackmun: Mr. Jaques, the jury as I understand that gave him maintenance and cure exactly two years, June 29, 1968 the date of discharge to the same date 1970.

Did they just pick this out of the air as kind of a compromise, what do you think it is?

What is the significance of that 1970 date?

Mr. Leonard C. Jaques: Well, that certainly is an interesting question and I have thought about this.

The only thing that I can say, Your Honor, in response to that is there was a period, approximately in that period of time, when the seaman was examined, by Dr. Benitus who was comparable to Dr. Heil and he is a specialist, although it was a period of time earlier, actually it was a trifle earlier than that two year period.

Now, in response further to Mr. Justice Brennan, with regard to the seaman's right to an appropriate period of time and other matters that are sought as relief in the brief of the petitioner, I submit, first of all, that this Court has declared way back, following Justice Story's declaration, of this court being, well a seaman is a ward of the Admiralty Court and as such, I submit that it's not unprecedented for an award to be made outside of the area of issues raised below.

In regard to the matter of the appropriate order to issue relative to judgment, to be consistent with the law that is established pertaining to the duration, maintenance and cure, not only is it not unprecedented that the court even on it's own motion could make such a determination.

Justice William H. Rehnquist: You say it is not unprecedented, either precedence in this Court for where that you have not appealed from an award of District Court to the Court of Appeals, we grant limited certiorari for us to do what you want us to?

Mr. Leonard C. Jaques: I submit Your Honor and this is my impression and I don't have -- it is my impression that such is not unprecedented.

Justice William H. Rehnquist: When you say, it's not unprecedented, are you relying on a particular case?

Mr. Leonard C. Jaques: Well, I do not at this time have the case.

I have not briefed it.

If the Court would direct, I would submit a separate brief on that issue.

But I submit that under the circumstances where a seaman is indeed a ward of the Admiralty Court that this circumstance could be effectuated.

But no matter, the pecuniary moment, the amount of pecuniary award to Vella may not be a great moment, but the significance of the Sixth Circuit decision if left to stand and the consequences of it, would be of, I would submit grave consequences.

Justice Potter Stewart: The instructions of the trial judge are not in the -- don't seem to be in the Appendix with respect to maintenance and cure.

I was wondering, did he gave instructions that would have rationally permitted the jury to return the verdict it did for two years of maintenance and cure?

Mr. Leonard C. Jaques: He did that Your Honor.

He gave the instructions, the trial judge gave the instructions consistent with the holdings of the Third Circuit and the holdings of the Fifth Circuit which I had previously enunciated and brought and briefed in the petition of the brief --

Justice Potter Stewart: So the instructions were given in court under your theory of what the law is, right?

The instructions reflected your theory of what the law is?

Mr. Leonard C. Jaques: That's correct, that's correct, Your Honor.

Justice Potter Stewart: Despite that the jury returned this verdict of arbitrarily two years for the maintenance and cure?

Mr. Leonard C. Jaques: That's correct and the judge has indicated that he was also puzzled at that particular period.

Thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Jaques, thank you, Mr. Mundell.

The case is submitted.

Transcript: 

Argument of Leonard C. Jaques

Chief Justice Warren E. Burger: We'll hear arguments next in 73-1994, Vella against Ford Motor Company.

Mr. Jaques.

Mr. Leonard C. Jaques: Mr. Chief Justice, if it please the Court.

In 1962, an intoxicated seaman was going back to his ship in Louisiana.

He fell asleep on a railroad track before he got there.

Justice Harry A. Blackmun: Does the record show he was intoxicated Mr. Jaques?

Mr. Leonard C. Jaques: Yes, Your Honor.

The record shows, in this particular case, I am citing and I am --

Justice Harry A. Blackmun: He got to the railroad track --

Mr. Leonard C. Jaques: Got to the a railroad track, couldn’t get to the ship, laid down on railroad track.

The train came along, amputated both legs.

The question arose, what duty does the shipowner have with regard to payment of maintenance and cure.

The Fifth Circuit held, in Myles versus Quinn Menhaden Fisheries Inc. 302 F.2d 146, that the duty of the shipowner did terminate at the time that there was provided for the seaman, a fitting of artificial legs.

The Sixth Circuit would hold, in 1975, that there was no duty at all to provide any cure, any maintenance for the seaman.

In its holding on the Vella case, the Sixth Circuit had indicated, that one who was afflicted by trauma with a vestibular labyrinthine disorder had actually reached the maximum cure, at the time that the incident occurred.

This is borne in the opinion on page 29 of the brief -- of the appendix.

And there the court stated, “the record in this case did not permit an inference other than, that plaintiff’s condition was permanent immediately after the accident.

To look at the Sixth Circuit holding, with regard to this case, it would necessarily follow that there could be no manner by which a seaman who had reached that point of maximum medical cure, as was enunciated by this Court in Farrell versus United States, where there had been, in fact a declaration, that there had been a maximum cure rendered for the treatment of the seaman.

For indeed if, once that particular declaration is made by a medical authority, according to the Sixth Circuit, relating back, the very onset of the incident which created the injury or the illness would have been in fact incurable.

Well, looking on these cases relative to maintenance and cure, the cure aspect, doesn’t mean cure in a medical sense solely, it means care.

There a question arises to what extent and this Court has never indicated that where there is treatment to provide a cure of an amelioratory nature, that would not permit a seaman to come within the scope of the doctrine and this court has never addressed itself to that very particular question.

I recognize that in Farrell and also in Vaughan versus Atkinson that the majority held that a seaman is not entitled to maintenance and cure payments for a lifetime.

What indeed the circuits have interpreted Farrell since it came down in 1949, the Third Circuit and the Fifth Circuit has consistently held and I must point out, that these two circuits, the Third and the Fifth, are quite active Maritime Circuits, much more than the Sixth Circuit.

But with regard to the test, I cite the case of Smith versus Dale Hart, Inc, it's 315 F.Supp. 1162, or in 1969 AMC 2400, I cite it for the language.

In that case, the Court held that the maximum medical care does not mean to the point where a seamen has the ability to return to work, but to restore a seamen to the status of a functional human being.

Now that case is very similar to the case of Vella.

An action was brought for the negligence under the Jones Act, in addition to unseaworthiness of the vessel.

It was held that there was no unseaworthiness of the vessel, no negligence under the Jones Act.

The third count, however, was with regard to maintenance and cure.

In that case the seamen suffered from a ruematoyed arthritic condition, degenerative spinal condition.

The orthopedic surgeon said, I can operate on him, I can cure him to the point where he can go back to sea, but I can cause him to be alleviated of pain and nothing more.

And there the Court held that this would be compensable and this is in line with the cases of Third Circuit such as --

Justice William H. Rehnquist: Mr. Jaques do you think that kind of a question is raised by our -- the question we granted certiorari on?

Well, we just granted one of your three questions that you presented in your petition and that was, whether a seaman was entitled to maintenance and cure during the interim between the occurrence of the incident and the time the disease was medically diagnosed and declared incurable?

Mr. Leonard C. Jaques: Indeed Your Honor.

Indeed, because embodied within that question, as it was framed, would be the question as to when and what time does the seamen -- the scope and duration, under what circumstance does he come within the scope and once he is within the scope or what is the duration?

And here in the Sixth Circuit opinion, under a very novel pronouncement, the Sixth Circuit said, there is more than a one step proposition, such as this Court held in the Osceola back in 1898, where a seamen was required to show that he actually sustained injury or became ill in the service of the vessel and at that time, it meant Your Honor, that he must have been actually performing work activities on the vessel.

Now, this Court in the Calmar versus Taylor case extended that and put the seamen ashore and where he is in fact injured ashore or sustains injury ashore, that is construed to be in the service of the ship, even though it's on a personal basis.

Now this --

Justice William H. Rehnquist: Your man was injured aboard the ship though, where he was doing work wasn't he?

Mr. Leonard C. Jaques: Indeed he was, but the Sixth Circuit held that, that wasn't enough, that showing in and off itself is not enough Your Honor.

The Sixth Circuit held, just as the shipowner argued that, he must not only show that he was injured while in the service of the vessel and indeed there is no question and they concede that, the shipowner indeed concedes that he was injured, that the jury did find that he was injured while in the service of the vessel.

But the Sixth Circuit holds that the seaman has an additional duty.

That he must go forward and show that he has that there -- whatever he is afflicted with is curable.

This is why, it is indeed important to make a determination as to whether or not this additional step is required in accordance with the law.

Take that situation alone; a Seaman who is saddled with responsibility to go forward to get medical authority to indicate that whatever he is afflicted with is curable in this day with the special problems that the Physicians have, it would be very difficult.

When I say problem, I am talking about Physicians having problem with regard to malpractice insurance and for a Physician to diagnose someone with a specific type of disability and for the shipowner to require the Physician to indicate that he does in fact have a curable ailment, maybe construed by doctors as a contract to cure him with the inherent; and I don't mean this disparagingly but it would be inherent tendency of medical practitioners to act on a conservative basis, it's doubtful that any seaman could ever get any doctor to make such a declaration.

Justice William H. Rehnquist: Mr. Jacques, as I understand the jury awarded your client maintenance and cure for a period of two years from the time he was discharged from the vessel till a period two years later?

Mr. Leonard C. Jaques: That's correct.

Justice William H. Rehnquist: What does maintenance and cure consist of, is it basically room and board?

Mr. Leonard C. Jaques: Maintenance means sustenance, cure means care.

It has been established by Collective Bargaining Contracts that this is set at a rate of $8 per day, rather unrealistic because it is supposed to be the kind of care and treatment and lodging that he would have received aboard the ship no better and no worse.

Justice William H. Rehnquist: On the assumption that he is disabled and in the hospital during this period?

Mr. Leonard C. Jaques: On the assumption that he is disabled -- more than assumption Your Honor, but then indeed, the fact that he is disabled and unfit for sea duty.

Justice Potter Stewart: The actual practice now for an injured or ill seaman go into a public hospital?

Mr. Leonard C. Jaques: Yes, Your Honor.

Justice Potter Stewart: An IAH hospital in (Voice Overlap)

Mr. Leonard C. Jaques: The (Inaudible) Hospital, the United States Public Health Service Hospital --

Justice Potter Stewart: Public Health Hospital and that's -- is that covered generally by Collective Bargaining Agreements or not?

Mr. Leonard C. Jaques: That's covered by statute Your Honor and --

Justice Potter Stewart: And that's where he goes, that's where he gets his maintenance and cure generally, isn't it?

Mr. Leonard C. Jaques: He gets maintenance and cure while he is in an --

Justice Potter Stewart: Unless he is not been -- until he becomes an outpatient?

Mr. Leonard C. Jaques: That's true.

He is not entitled to payments until he is an outpatient, if in fact, he had been interned in the medical facility, often times they are not, often times they are simply treated as outpatients but unfit for duty.

Justice Harry A. Blackmun: Mr. Jaques could I translate this into the facts of your case, your third cause of action, of course, is rather wide open and it's cost for relief, but what would you be satisfied with the per dime up to the time of the rendition of the medical judgment of the inner ear problem?

Mr. Leonard C. Jaques: I would be -- well, with regard to maintenance and cure benefits to not -- to my client, I would be satisfied for maintenance and cure payments up to the time where there had been a diagnosis and declaration by a medical authority that the disease was in fact incurable and that --

Justice Harry A. Blackmun: Suppose that it had come within a week of the accident?

Mr. Leonard C. Jaques: If that had come within a week of the accident, I must say Your Honor, when I answered this question, I had put it on strictly the hypothetical basis, or predicated on exactly as you phrase it.

Now if it happened within one week, I would say that the test would go to what I had set forth in my brief on page 17 which I and I did propose a test to show as follows.

A seaman who has contracted by trauma, but I will change that, a seaman who has become ill and the illness or injury is of a permanent nature, while in the service of the vessel, comes within the scope of maintenance and cure benefits and shall continue to be entitled to those benefits until cured or until the disease is diagnosed and declared by medical authority that the maximum degree of improvement of the seaman's health has been reached.

Now, that would take care --

Chief Justice Warren E. Burger: When did you reach that in this case according to the Sixth Circuit?

Mr. Leonard C. Jaques: Well, the Sixth Circuit said, it was reached when it happened, and that's not keeping within the purpose of the doctrine.

Justice Byron R. White: I mean as soon as that was diagnosed that it was incurable, it always have been incurable. There are no maintenance and cure.

Mr. Leonard C. Jaques: That's what Sixth Circuit said.

The Sixth Circuit would go back --

Justice Harry A. Blackmun: (Voice Overlap) until that diagnosis was made and it happened a good bit of time afterward?

Mr. Leonard C. Jaques: I follow this.

I would follow Your Honor what this Court has set forth particularly in the Farrell versus United States case and in that case it says, this court adapted a treaty -- well, the draft convention which really was a treaty in 1939 and that treaty is set forth in the brief in the precise language on page 11.

The shipowner shall be liable to defray the expense of medical care and maintenance until the sick or injured seaman has been cured or until the sickness or incapacity has been declared of a permanent character.

Justice William H. Rehnquist: Do you think that Farrell has authority for applying that on the Great Lakes?

Mr. Leonard C. Jaques: Absolutely, Your Honor.

This Court has never made a dichotomy with regard to maintenance and cure benefits with reference to high seas and the Great Lakes.

I concede Your Honor that this particular treaty did not have bearing on Great Lake seaman indeed by its language, it meant only persons on the high seas, but when this --

Justice William J. Brennan: You asking for a remand to the trial court to the entry of an amended order of judgment, which is to say you are not satisfied with the verdict you got from the jury?

Mr. Leonard C. Jaques: I think that the jury verdict under the proper test and the instructions of the Court was not correct.

Justice William J. Brennan: Can you ask us to do that?

You didn't appeal jury verdict yourself to the Court of Appeals, did you?

Mr. Leonard C. Jaques: I simply indicate here that the question as to the additur of the verdict was not brought before the Court of Appeals, but I submit --

Justice William J. Brennan: Well, how can you ask us to do it if you didn't appeal this to the Court of Appeals yourself?

Mr. Leonard C. Jaques: Well, I concede Your Honor that this is a circumstance where the Court may under the proper condition be loath to grant that which was not sought?

Justice William J. Brennan: I understand it.

What you got from the jury was for two years.

Was it from June 29, 1968?

Mr. Leonard C. Jaques: That's correct Your Honor.

Justice William J. Brennan: And you are asking for almost four years from June 29, 1968 to April 27, 1972, is that correct?

Mr. Leonard C. Jaques: That's correct, and that's because of the test that the Court has established.

Justice William J. Brennan: Well, you see our difficulties or at least my difficulties, I don't see how you can ask us to do that when you didn't appeal, a cross appeal to the Court of Appeals?

Mr. Leonard C. Jaques: I realize but the Court in retrospect would recognize that the Sixth Circuit would not lend any credence or even address itself to that proposition, had it been raised in the appellate court below.

Chief Justice Warren E. Burger: That's ordinarily not a reason for not raising it because you will make an advanced evaluation that they won't pay any attention to it which is what I understood you to say?

Mr. Leonard C. Jaques: I don't make an advance evaluation and I agree now under the circumstances indeed it is questionable whether or not this Court would grant the relief sought particularly with regard to additur of the verdict related to the maintenance and cure.

Justice William J. Brennan: Well, what about the issue of the Attorney's fees?

Mr. Leonard C. Jaques: Well, that was raised, the Attorney's fees was raised --

Justice William J. Brennan: But, again were they denied by the District Court?

Mr. Leonard C. Jaques: That's correct.

The trial court denied the Attorney.

Justice William J. Brennan: Again you didn't appeal that, did you?

Mr. Leonard C. Jaques: I did not appeal that to the Sixth Circuit.

The two-step criteria of the Sixth Circuit, and really what the Sixth Circuit is saying, first the seaman must show that he was injured while in the service of the vessel, and then he must show that whatever cure he undertakes that will be the -- that will result into his return to a fit for duty status.

This is novel.

This is something this Court has never held.

With regard to the duration the Sixth Circuit has criticized in the footnote, the Third Circuit relative to what was held in Ward versus the Barge Line where the Sixth -- where the Third Circuit indicated that maintenance and cure would go on as so long as there was some type of mandatory relief.

And the question I would pose would be how then can the Sixth Circuit square itself with Farrell in this particular case, because Farrell has indicated that maintenance and cure must be paid until there had been a declaration by medical authority that the disease was incurable and that was not done until the time of the trial.

But, Sixth Circuit did not even allow the two years that was granted by the jury.

I will reserve time.

Chief Justice Warren E. Burger: Very well Mr. Jaques.

Mr. Mundell.

Argument of John A. Mundell, Jr.

Mr. John A. Mundell, Jr.: Mr. Chief Justice, and may it please the Court.

In the case of the Bouker No. 2, 241 Fed. 831, the court stated at page 835, the limits of care or cure both as to kind of treatment and time of continuance must always depend on the facts of each particular case.

Respondent in this case contends the facts at bar are of special significance in the resolution of the issue now before the Court.

And I would ask the court to bear with me momentarily as I recite briefly the facts, because I believe they have a very special significance.

The petitioner in this case was an oiler on the S.S. Robert S. McNamara.

He claimed that while replacing a deck plate in the lower engine room, he slipped and fell, and bumped his head.

There was some doubt as to whether the petitioner reported that action at that time.

Thereafter, the petitioner claimed that he suffered from dizziness, headaches, imbalance, and fear of falling, but he continued to perform his regular duties until June 28, 1968.

The alleged accident occurred some time, a date unknown to the petitioner in early April, 1968.

That means, he was on the ship for a period of almost 19 days doing his regular work.

On June 28 the petitioner was discharged from the vessel for failing to obey the orders of a superior officer.

When the vessel arrived back at Dearborn following day on June 29, he was paid off and left the vessel.

During the course of the preparation of his discharge papers, the Third Assistant Engineer was doing this, the petitioner said and informed the Third Assistant Engineer that he had fallen back in April, 1968 and an accident report was prepared.

Petitioner also requested and was issued a master certificate permitting him or a hospital ticket permitting him to go to the United States Public Health Service Hospital where free care is provided for a merchant seaman.

Immediately, upon leaving the vessel, the petitioner was examined at respondent's plant hospital.

This hospital is staffed by 15 physicians and 89 nurses and headed by Dr. Charles David Litterick (ph).

Based upon the information supplied by the petitioner, Dr. Litterick gave a diagnosis of alleged left parietal contusion.

In as much as the petitioner denied visual difficulties, nausea, vomiting, dizziness, or headaches in the Romberg test which is the test where you close our eyes, and if you sway back and forth to indicate you have a balance problem, that test was negative and similar test finger-to-finger test with your eyes closed, finger to nose with your eyes closed; again a balance test, these tests were all normal.

Dr. Litterick ruled out vestibular damage, but based upon the petitioner's description that there was something electrical in his head, decided that complaint could relate to a tiny nerve branch contusion.

This he considered minor and he ordered a cold pack applied to the area where he described his harder electrical sensation and discharged him to enable to work.

From that day, June 29, 1968, petitioner went to the US Public Health Service Hospital in Detroit on three occasions, July 9, July 16 and September 30.

On each of those occasions, he was declared fit for duty.

It is to be noted in the appendix which sets forth these visits to the Public Health Service Hospital, that the petitioner when he went there, if he denied he had sustaining the unconsciousness, he had no headaches, dizziness, or other neural problems and nothing of an objective nature was found.

The final day that he was there, final visit --

Justice Harry A. Blackmun: Mr. Mundell, are you arguing that there isn't sufficient evidence in the record here to justify the jury's findings against you?

Mr. John A. Mundell, Jr.: Yes sir.

Justice Potter Stewart: What about your argument that there was never anything wrong with him or that whatever he did have wrong with him by way of an illness or injury didn't occur while he was in the service of the ship?

Mr. John A. Mundell, Jr.: Both, if the court, please.

It was our contention that when the man left the ship, he was fit for duty.

Now, the jury in this case, did give the man two years maintenance.

There was never a specific finding.

Justice Potter Stewart: Thereby found that he had a physical condition that occurred while he was in the service of the ship, necessarily if the instructions were correct?

Mr. John A. Mundell, Jr.: Yes.

Justice Potter Stewart: And found that as a fact?

Mr. John A. Mundell, Jr.: Well, that's why if the court please we appealed the maintenance verdict.

We felt there was no basis for this jury to grant maintenance and cure to this man.

Justice Byron R. White: Did the Court of Appeals ever passed on this part of your contention?

Mr. John A. Mundell, Jr.: Yes, on as to whether or not he actually was fit for duty or not fit for duty?

Justice Byron R. White: (Voice Overlap) it is whether the evidence to support the verdict?

Mr. John A. Mundell, Jr.: I think the words of the court were presumably the jury found that the man had sustained an injury in part of ship.

Justice Byron R. White: At least they didn't reverse on the ground you are urging now?

Mr. John A. Mundell, Jr.: No.

Justice Byron R. White: And they in effect rejected that ground?

Mr. John A. Mundell, Jr.: I would --

Justice Byron R. White: So we've got two courts saying that there was evidence to the Court of Appeals and the trial judge?

Mr. John A. Mundell, Jr.: Well --

Justice Byron R. White: Well, he said it in the jury.

Mr. John A. Mundell, Jr.: Oh!

Yes.

Chief Justice Warren E. Burger: I think we'll resume there at 10 o'clock in the morning.

Mr. John A. Mundell, Jr.: Very well Your Honor.