May 14, 1993 UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 92-2366
LEONARD J. LEBLANC,
Plaintiff, Appellant,
v.
B.G.T. CORPORATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Marianne B. Bowler, U.S. Magistrate Judge]
Before
Selya, Circuit Judge,
Friedman,* Senior Circuit Judge,
and Cyr, Circuit Judge.
Joseph G. Abromovitz, with whom John G. Balzer and
Abromovitz & Leahy, P.C. were on brief, for appellant.
Richard H. Pettingell with whom Debra A. Joyce and Morrison,
Mahoney & Miller were on brief, for appellee.
May 14, 1993
*Of the Federal Circuit, sitting by designation.
SELYA, Circuit Judge. We must answer today a question SELYA, Circuit Judge.
of first impression in this circuit and, of late, in the courts
of appeals: Does a person's status as a seaman in service of a
ship necessarily end immediately upon termination of employment,
thereby extinguishing a right to maintenance and cure which might
otherwise be available under general maritime law? We think not.
Because the court below applied a contrary rule, we vacate the
judgment and remand for further development of the record.
I. BACKGROUND
Plaintiff-appellant Leonard J. LeBlanc worked as an
engineer aboard the F/V RESOLUTE, a commercial fishing boat owned
by defendant-appellee B.G.T. Corporation.1 The RESOLUTE set out
from Fairhaven, Massachusetts on September 25, 1991. Shortly
after its departure, the vessel broke down and returned to port
for minor repairs. It then headed back to sea with a
rehabilitated winch and renewed hopes, but, it appears, against
the winds of fortune. The crew's efforts produced few fish.
Appellant grew uneasy in the face of disappointed
expectations. Since his remuneration would reflect both the
value of the catch and the expense of the voyage, he sought to
truncate what had become a relatively unproductive and costly
trip. His importunings placed him at loggerheads with the
1The litigants, who do not agree on very much, have a difference of opinion as to nomenclature. Although the case caption and appellant's filings refer to the defendant as "B.G.T. Corporation," the defendant persists in styling itself "B.T.G. Fisheries, Inc." This seems to us small beer, and we, following both alphabetical order and the lead of the magistrate judge, use the former appellation.
captain, and a heated confrontation ensued. Although the parties
vigorously debate the exact content of this war of words
appellant may or may not have been cashiered then and there it
is undisputed that the RESOLUTE turned back, arriving in New
Bedford during the night of October 9. The following morning,
the crew dislodged the catch. The RESOLUTE then made the five-
minute journey to her dock in Fairhaven. Throughout, appellant
continued to perform the ship's work.
Once the vessel docked, appellant, assisted by a fellow
crew member, Peter Lynch, began unloading his gear. During this
process, or shortly thereafter, the captain approached and gave
appellant his "per."2 Another argument erupted. In the course
of this brouhaha, the captain either told or reminded appellant
that he was fired and, at any rate, ordered him to remove his
belongings from the boat. Ten to fifteen minutes later,
appellant slipped while descending the stairs to the engine room
and broke his right foot.
It remains unclear exactly what transpired in the brief
interval between the second imbroglio and the accident. The
parties agree that appellant removed some additional gear that he
routinely kept aboard the RESOLUTE between voyages; but they
disagree as to exactly how he accomplished this feat, i.e.,
whether he exited the vessel during the unloading process or,
2A "per" is a bonus provided to certain crew members, like the engineer, whose duties include the performance of special tasks. Appellant did not receive his basic remuneration his crewman's "share" until a later time.
instead, stayed on board and handed his possessions over the side
to Lynch. The record is similarly obscure concerning whether
appellant succeeded in removing all his gear prior to injuring
himself or, instead, as he claimed at trial, had yet to retrieve
his boots from the engine room.
Following the mishap, appellant received maintenance
checks for a period of time. As soon as the employer's attorney
got wind of the accident and suggested that appellant, when
injured, was no longer in the ship's service, the flow of funds
stopped. Appellant then sued, including in his complaint a count
for maintenance and cure under general maritime law. That count
was tried by mutual consent before a magistrate judge. See 28
U.S.C. 636(c)(1) (1988). After a two-day trial, the magistrate
denied recovery for maintenance and cure. LeBlanc appeals.3
II. ANALYSIS
The magistrate reasoned that appellant was not entitled
to maintenance and cure because, as a matter of law, that remedy
cannot attach after termination of employment. Since this was a
bench trial in an admiralty case, the magistrate's findings of
fact are reviewable only for clear error. See, e.g., DiMillo v.
Sheepscot Pilots, Inc., 870 F.2d 746, 749 (1st Cir. 1989);
Clauson v. Smith, 823 F.2d 660, 661 (1st Cir. 1987). However,
3LeBlanc also sued for negligence under the Jones Act, 46 U.S.C. app. 688 (1988), and for unseaworthiness under general maritime law. These claims remain in drydock. Notwithstanding the case's odd posture, we have appellate jurisdiction because the magistrate's order definitively resolved the maintenance-and- cure count. See 28 U.S.C. 1292(a)(3) (1988) (providing for
liberal interlocutory appeals in admiralty cases).
appellant does not claim that the magistrate misperceived the
facts, but, rather, that she applied an incorrect legal standard.
We consider this claim of legal error de novo. See Liberty
Mutual Ins. Co. v. Commercial Union Ins. Co., 978 F.2d 750, 757
(1st Cir. 1992); Dedham Water Co. v. Cumberland Farms Dairy,
Inc., 972 F.2d 453, 457 (1st Cir. 1992).
A
Before addressing the merits of the appeal, we limn the
seascape against which it arises. From time immemorial, the law
of the sea has required shipowners to ensure the maintenance and
cure of seamen who fall ill or become injured while in service of
the ship. See, e.g., 1B Ellen M. Flynn et al., Benedict on
Admiralty 41-42 (6th ed. 1993) (finding the requirement extant
in the Laws of Oleron and other ancient admiralty codes). The
duty to provide maintenance and cure is today a firmly entrenched
accouterment of general maritime law. See, e.g., Aguilar v.
Standard Oil Co., 318 U.S. 724, 726 (1943); The Osceola, 189 U.S.
158, 175 (1903).
The term "maintenance and cure" refers to the provision
of, or payment for, food and lodging ("maintenance") as well as
any necessary health-care expenses ("cure") incurred during the
period of recovery from an injury or malady. See, e.g., Aguilar,
318 U.S. at 730; Calmar Steamship Corp. v. Taylor, 303 U.S. 525,
528 (1938). As the label implies, the right is curative in
nature and is thus to be distinguished from other admiralty
rights, such as the right to recover lost wages or the right to
recover for a shipowner's negligence, which are compensatory.
See Aguilar, 318 U.S. at 730. The right to maintenance and cure
attaches largely without regard to fault; a seaman may forfeit
his entitlement only by engaging in gross misconduct. See, e.g.,
Calmar, 303 U.S. at 527-29. And, moreover, once the right to
maintenance and cure has attached, the injured employee's
entitlement continues, even after termination of service, until
he is "so far cured as possible." Farrell v. United States, 336
U.S. 511, 518 (1949); accord Clauson, 823 F.2d at 661 n.1.
Developed though the doctrine may be in some respects,
its scope has never been precisely delineated. While it is
common ground that the right is available only to a "seaman" who
is "in service of the ship" at the time an injury or illness
eventuates, see Aguilar, 318 U.S. at 732; Osceola, 189 U.S. at
175, the meaning of these imbricated terms has evolved piecemeal
over many decades and attempts at further refinement typically
have been imbued with the factual residuum of particular cases.
See, e.g., McDermott Int'l, Inc. v. Wilander, 111 S. Ct. 807,
814-16, 818 (1991); Senko v. LaCrosse Dredging Corp., 352 U.S.
370, 374 (1957).4 Thus, there are lingering questions as to the
exact manner in which the right to maintenance and cure
4Although the cited cases involve the Jones Act, 46 U.S.C. app. 688, general maritime law and the jurisprudence of the Jones Act have largely evolved in tandem. See Wilander, 111 S.
Ct. at 810-11. Moreover, those falling within the prophylaxis of the Jones Act are also among the class of persons who are afforded the primary protections of general maritime law, of which maintenance and cure is a prime exemplar. See 1B Flynn et
al., Benedict on Admiralty, supra, 44.
interfaces with the employment relationship. It is, for example,
still unsettled whether the right to maintenance and cure is
coterminous with, and a contractual attribute of, employed
status, or, instead, whether the right retains a measure of
independent force. See 2 Martin J. Norris, The Law of Seamen
26:10 (4th ed. 1985) (collecting cases).
The instant case requires us to explore these uncharted
waters, for B.G.T. contends, and the magistrate apparently
believed, that termination of employment, in and of itself,
necessarily and always prevents subsequent attachment of a right
to maintenance and cure. We reject this thesis, concluding that
the right to maintenance and cure stems from the employer-
employee relationship but is not in all circumstances completely
coextensive with it. As we explain below, a number of different
considerations undergird this conclusion.
B
One pylon upon which our holding rests is an
appreciation of the historical purpose of maintenance and cure.
A common thread running through the reported cases, some of them
centuries old, is that maintenance and cure must always be viewed
as an alleviatory remedy. Seamen should receive it because the
nature of their employment necessitates their exposure to the
peculiar hazards of seafaring life while at the same time leaving
them utterly dependent on the ship, which serves as the very
framework for their existence. See, e.g., Farrell, 336 U.S. at
514-16; Aguilar, 318 U.S. at 731-34; Harden v. Gordon, 11 F. Cas.
480, 483 (C.C.D. Me. 1823) (No. 6,047) (Story, J.); see also
Wilander, 111 S. Ct. at 817 (stating that a seaman's remedies
grow out of "his peculiar relationship to the vessel, and . . .
the special hazards" of seafaring) (citation and internal
quotation marks omitted). Because it was feared that without the
right to maintenance and cure as an inducement few might
willingly devote themselves to a way of life that would both
render them at risk and leave them friendless in the face of the
assumed risk, see Calmar, 303 U.S. at 528; see also Macedo v. F/V
Paul & Michelle, 868 F.2d 519, 521 (1st Cir. 1989) ("The
obligation for maintenance and cure arose, historically, from the
irresponsible behavior of shipowners who set disabled seamen
ashore at foreign ports to shift for themselves."), the benefits
of maintenance and cure have not been limited to victims of
predictable shipboard injuries. For instance, in ruling that a
seaman injured while on shore leave could receive maintenance and
cure, Justice Rutledge wrote:
The voyage creates not only the need for relaxation ashore, but the necessity that it be satisfied in distant and unfamiliar ports. If, in those surroundings, the seaman . . . incurs injury, it is because of the voyage, the shipowner's business. That business has separated him from his usual places of association. . . . In sum, it is the ship's business which subjects the seaman to the risks attending hours of relaxation in strange surroundings. Accordingly, it is but reasonable that the business extend the same protections against injury from them as it gives for other risks of the employment.
Aguilar, 318 U.S. at 734. This historical perspective a
seaman's lifestyle makes him dependent on the ship while
simultaneously ensuring his exposure to the variegated risks of
seafaring, thus warranting an alleviatory remedy is what stands
behind, and gives meaning to, the black letter rule that seamen
who are, broadly speaking, in the ship's service when injured
merit maintenance and cure.
C
A second pylon upon which our holding rests goes hand
in glove with this historical perspective. Linguistically, the
entitlement to maintenance and cure must not be defined
grudgingly. While the "seaman in service" language has at times
appeared to acquire a restrictive gloss, we believe that any
meaningful interpretation of the phrase must remain moored to
maintenance and cure's core purpose: palliating the
disadvantages of seafaring life. Thus, the nature of the right
require[s] that it be not narrowly confined or whittled down by restrictive and artificial distinctions defeating its broad and beneficial purposes. If leeway is to be given in either direction, all the considerations which brought the [right] into being dictate it should be in the sailor's behalf.
Aguilar, 318 U.S. at 735.
It is for this reason that a certain expansiveness
rightfully attends determinations of whether a person is a seaman
in service of the ship. To cite one example, we recently ruled
that a sailor injured at home on a Sunday was entitled to
maintenance and cure although his ship was not due to sail until
the following Tuesday, observing that "the captain could have
changed his mind and decided to sail Monday and required
plaintiff to do the preparatory boat work Sunday, holiday or
not." Macedo, 868 F.2d at 520-21. As this illustration makes
clear, if a person is enduring circumstances which, in a rather
general sense, further the ship's purposes, he may well be deemed
in the ship's service. Accord Farrell, 336 U.S. at 516 (holding
that a seaman is in the ship's service when he is generally
answerable to the call of duty).
The Supreme Court's most recent visit to these straits
exemplifies the same strain of interpretive generosity in a
slightly different context. In Wilander, an employee whose
duties consisted of supervising the painting of a sea-bound
drilling platform was injured. He sued, seeking a seaman's
remedies. The Court, refusing to impose a requirement that, to
be a seaman, one must aid in the navigation of a vessel,
concluded instead that "[t]he key to seaman status is employment-
related connection to a vessel." Wilander, 111 S. Ct. at 817.5
In sum, the motivational impetus behind maintenance and
cure dictates availability of the anodyne whenever a plaintiff's
5It can, of course, be argued that cases dealing with the question of who qualifies as a seaman, see, e.g., Wilander, 111
S. Ct. at 807, are distinguishable. However, the two most frequently asked questions in seamen's cases Who is a seaman? Was the seaman in service of the ship? overlap. The former question usually reduces to asking: How connected with the ship's function must a person's duties be in order for the mine run of rights under maritime law to attach? The latter question usually reduces to asking: How connected with the ship's function must the injury-inducing circumstances be in order for such rights to attach? In our estimation, the answers to both questions shed light upon the quandary we face here, namely, whether it is necessarily true that a seaman in service of the vessel instantly loses that status upon discharge.
injury or illness occurs amidst circumstances endured in
furtherance of, and as a result of, an employment, the duties of
which help accomplish the mission of a vessel in navigation.
This formulation makes clear that, while the right to maintenance
and cure stems from a person's employment, there is no reason to
assume that the right and the employment are conterminous with
each other. Indeed, the decided cases indicate the contrary.
See Aguilar, 318 U.S. at 730 (explaining that the right to
maintenance and cure arises "as an incident of the marine
employer-employee relationship"); Cortes v. Baltimore Insular
Line, Inc., 287 U.S. 367, 371 (1932) (explaining that the right
to maintenance and cure "has its source in a relation which is
contractual in origin").
D
A third pylon on which our holding rests reflects a
policy judgment. We recognize that the possibility of
maintenance and cure attaching will end in most instances when
the employment relationship expires. But, this need not
invariably be the case. We are of the opinion that taking a
mechanical approach, as appellee urges, would as a matter of
policy be incompatible with the Court's repeated eschewal of
sharp-edged rules limiting seamen's rights. See, e.g., Wilander,
111 S. Ct. at 817-18; Desper v. Starved Rock Ferry Co., 342 U.S.
187, 190 (1952).
What is more, a strict cut-off point of the sort urged
by appellee would sometimes run at cross purposes with the
historical antecedents and definitional imperatives of
maintenance and cure. See supra Parts II(B), (C). We think this
is so because the life of a seaman requires that he be drawn into
the separate world of the ship and subjected to the unique risks
present therein. If he is terminated while still in that realm,
the separation and its risks which are, after all, the twin
rationales for providing maintenance and cure do not instantly
evaporate. Nor, therefore, does the seaman's persona change,
like Cinderella at the stroke of twelve, from a servitor of the
ship to a landlubbing interloper. Rather, the title "seaman"
must remain attached at least until the individual has finished
his shipboard tasks (unless duly relieved of them) and had a
reasonable chance to exit from the maritime realm, or, put
another way, for so long as the twin rationales remain in force.
Just as the Court deemed Aguilar a seaman in service of the ship
because the risks inherent in his situation were necessitated by
the ship's business, see Aguilar, 318 U.S. at 734, so, too, a
person cashiered while on board a vessel remains a seaman
furthering its purposes at least until he is afforded reasonable
time and opportunity for disembarkation.
E
The last pylon on which our holding rests is hewn from
the caselaw. There is a venerable court of appeals decision
directly on point in which the plaintiff, after being fired,
injured himself while leaving the ship. The Fourth Circuit held
that
the obligation of the ship to furnish maintenance and cure attaches to accidents which happen in the brief interval between the time a seaman is paid off and formally discharged and the subsequent time at which, in ordinary course, he actually gets physically away from her. He went on her as a seaman, and for the purpose in hand he did not cease to be one until he was safely off her.
The Michael Tracy, 295 F. 680, 681 (4th Cir. 1924). We believe
that this statement of the law continues to shine brightly,
undimmed by the passage of time.6
We discern further decisional support for our
conclusion in the closely related area of workers' compensation
law. Although statutes differ from state to state, the general
rule stipulates that "coverage is not automatically and
instantaneously terminated by the firing or quitting of the
employee" but extends for a reasonable period thereafter so that
the employee may "wind[] up his affairs and leave[] the
premises." 1A Arthur Larson, The Law of Workmen's Compensation
26.10 (1993) (collecting cases); see also id. 26:30-26:40
(indicating that a "reasonable period" incident to severance of
employment encompasses time to pick up a paycheck and retrieve
6B.G.T. suggests that Fisher v. Cleveland Cliffs Iron Co.,
1975 A.M.C. 1570 (W.D. Pa. 1975), a case in which the district court abjured the rule of Tracy, is the beacon by which we should
steer. We disagree. First, Fisher's reasoning depends upon
statements (dicta in decisions and passages in commentary) treating with unrelated questions. See id. at 1577-78. Second,
none of this rumination actually rules out recovery by recently fired employees. See id. On the whole, Fisher is unsupported by
the authorities upon which it purports to rely. Hence, we, like the commentators, see, e.g., 2 Norris, supra, 26.31, consider
Tracy more persuasive.
personal effects); Elmer H. Blair, Reference Guide to Workmen's
Compensation 5:03 (1974 & Supp. 1993) ("When a workman is
discharged, the right to compensation as an employee is not lost
until he has had a reasonable time to collect his pay and his
personal belongings, and leave the premises of his employer.").
We think the presence of this "reasonable period"
standard in workers' compensation law takes on a special
significance for our purposes because an injured seaman's
entitlement to maintenance and cure is widely thought to impose
"a broader liability than that imposed by modern workmen's
compensation statutes." Aguilar, 318 U.S. at 732; see also 2
Norris, supra, 26:40 ("Maintenance and cure under the general
maritime law is far more liberal in its application than are most
of the present workmen's compensation acts.").
F
We need go no further. The four pylons we have
described form an integrated foundation. Building on that
foundation, we hold that the right to maintenance and cure made
available by general maritime law to seamen injured or falling
ill while in service of the ship may attach after termination of
employment so long as the triggering event takes place within the
period of time reasonably needed for the accomplishment of tasks
in general furtherance of winding up the seaman's employment
the prototypical examples being removing one's belongings,
quitting the ship, or implementing direct orders given at the
time of discharge.
In the case at hand, the magistrate judge applied a
different, incorrect legal standard. Moreover, the record is not
sufficiently developed to allow us to resolve the controversy by
regrouping the available findings of fact along the proper legal
matrix.7 The case must, therefore, be remanded for further
consideration in light of this opinion, and for such further
proceedings as may be required. Although it is apparent that the
entire case need not be retried, we in no way intend to limit the
scope of the magistrate judge's inquiry on remand, but leave that
to her informed discretion. In the same vein, we see no reason
for the interposition of a new trier.
Vacated and remanded. Costs to appellant.
7Without attempting to be all-inclusive, we cite two examples of potentially important uncertainties. (1) The record is inscrutable with regard to whether LeBlanc, after the second imbroglio, alighted from the RESOLUTE, and then returned, or whether he remained on board. (2) There is some dubiety as to whether LeBlanc, at the time of his injury, was carrying out a direct order to remove his gear from the ship. The magistrate made no clear finding on either point, nor did she address the question of when LeBlanc's injury occurred with respect to the reasonable period of time needed to wind up his legitimate business on board the RESOLUTE.