Farrell v. United States (336 U.S. 511)/Dissent Douglas
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK, Mr. Justice MURPHY and Mr. Justice RUTLEDGE concur, dissenting.

I. Wages.-The articles bound Farrell to a voyage on the vessel which was en route to 'a point in the Atlantic Ocean to the Eastward of Philadelphia and thence to such ports and places in any part of the world as the Master may direct or as may be ordered or directed by the United States Government or any department, commission or agency thereof * * * and back to a final port of discharge in the United States, for a term of time not exceeding 12 (twelve) calendar months.' If this were a coastwise voyage, there would be little question that Farrell could recover his wages for the entire twelve-month period. See Enochasson v. Freeport Sulphur Co., D.C., 7 F.2d 674, 675; Jones v. Waterman S.S.C.orp., 3 Cir., 155 F.2d 992, 996. I agree with Judge Kirkpatrick that the principle of those cases is likewise applicable to foreign voyages. Shields v. United States, D.C., 73 F.Supp. 862  866. Any difference is not apparent. In each the seaman binds himself for the period. The obligation to pay wages should be cotermious with that responsibility. Enochasson v. Freeport Sulphur Co., supra. The number of voyages made is therefore immaterial. It is the extent of the voyage that could be demanded that is controlling.

II. Maintenance and Cure.-Calmar S.S.C.orp. v. Taylor, 303 U.S. 525, 58 S.Ct. 651, 82 L.Ed. 993, involved maintenance and cure  for an incurable disease which manifested itself during the seaman's employment but was not caused by it. The Court held that the shipowner's liability ended when the seaman was cured as far as possible, reserving the question whether a different rule would apply if the incapacity arose from the employment. 303 U.S. at page 530, 58 S.Ct. at page 654, 82 L.Ed. 993. The question reserved is now presented, for an injury received on returning to a ship from shore leave is plainly incurred in the service. Aguilar v. Standard Oil Co. of New Jersey, 318 U.S. 724, 63 S.Ct. 930, 87 L.Ed. 1107; Reed v. Canfield, Fed.Cas.No. 11,641. Justice Story was of the view that the ship remained liable until the cure was completed. Reed v. Canfield, supra. That was in 1832. Intervening decisions in the lower courts qualified that view. It was held that the right to maintenance and cure extended to a reasonable time beyond the end of the voyage.  The problem of what was a reasonable time remained. The test adopted by the Court is that it extends through the period when the maximum cure within the reach of medical science has been achieved.

But that test is not sufficiently discriminating.

Even though a maximum cure has been effected, two entirely different states of being may result when the injured man is left totally disabled.

(1) He may be totally disabled but no longer in need of medical aid to care for the condition created by the injury nor without means of providing maintenance. That is not the present case, at least so far as medical care is concerned. And we need not determine what rights to maintenance and cure one so situated has.

(2) One injured in the service of a ship may not only be permanently disabled after reaching the point of maximum cure. He may also be in need of future medical aid to sustain that condition and be without means of maintenance. These needs may extend to end of life. That is the present case, at least so far as medical care is concerned.  In this situation payments to give continuing needed care of wounds have been allowed, even though a maximum cure has been effected. The Josephine & Mary, 1 Cir., 120 F.2d 459, 462, 464. Cf. Saunders v. Luckenbach Co., D.C., 262 F. 845, 847.

In the present case an award for maintenance and cure to cover a six-month period after discharge from the hospital was allowed. Nevertheless even though Farrell's expenses of care may be continuing, the district court judge refused any further award. I do not believe that these future expenses should be any less a charge on the ship than past ex enses. To conclude as the Court now does that they are not is to ignore in part the salutary policy supporting the doctrine of maintenance and cure.

Maintenance and cure is an ancient doctrine. It reflects in part the concern which the state has had from an early date in a poor and improvident class of workers. See Mr. Justice Story in Harden v. Gordon, Fed.Cas.No.6,047. It also recognizes the imperative necessity of the nation to maintain in peace and war a merchant marine. If men are to go down to the sea in ships and face the perils of the ocean, those who employ them must be solicitous of their welfare. Maintenance and cure is an inducement on the part of masters and owners to be solicitous of the health, safety, and welfare of seamen while they are in the service. It gives a decree of security, though injury or sickness be incurred. It gives service in the merchant marine a dignity equal to the important function it performs. It reflects 'the great public policy of preserving this important class of citizens for the commercial service and maritime time defence of the nation.' Id., Fed.Cas.No.6,047.

Accordingly, the injuries of seamen arising out of the service were made a charge against the enterprise to the extent at least of maintenance and cure. Their maintenance and cure were indeed part of the cost of the business. It is nonetheless a legitimate cost though the expense continues beyond the time when a maximum cure has been effected.  

Notes

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

But Art. 12 contains a power to depart from that standard in this type of case. It provides:

'Nothing in this Convention shall affect any law, award, custom or agreement between shipowners and seamen which ensures more favourable conditions than those provided by this Convention.'