Petition for Writ of Certiorari — Palmer Shipping Corp. v. Luth

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TABLE OF CONTENTS OF PETITION.

Summary Aanp STaTEMENT OF Mattrer INVOLVED ......

IIE 0.0 dato 6 tase ee eae ere Se ial og a

SPOMREIONG TPRMUBRTED ounce cece ccscrseescensces

Reasons FOR GRANTING THE PETITION ..............

TABLE OF CONTENTS OF BRIEF.

I og 6 as akc cs bs a ces ek eeed Ga enews kus

I. A Seaman’s Right to Maintenance and Cure

Is Barred by Voluntary Rejection of

IIS GD: boo Cia iis Kaiek sks

II. The Evidence Shows That the Respondent’s

Refusal to Accept Medical Care Was

Neither Reasonable Nor Proper, and

Therefore Was Voluntary ............

III. Respondent’s Residual Gastritis Had

Reached the Point of Maximum Medical

Improvement in December, 1951 .......

i ME, bus uudass Vw Maa ides eabs daed ee

TABLE OF CASES CITED.

Page

The Balsa, 10 F. 24 408 eS 2 rer 6, 10

The Bouker No. 2, 241 Fed. 831 (C. A. 2, 1917) ....... 6,10

Calmar S.S. Corp. v. Ta ylor, 803 U.S. 525 (1938) .... 6,10

Farrell v. United States, 336 U.S. 511 arn 7,14

June v. Pan-American Petroleum & Transport Co.,

20 F. 2d 457 (C. A. 5, EE awe bcakkt Geel. be

Marshall vy. International Mereantile Marine Co., 39

FP, 2d 551 (C. A. 2, DN en ceetinets ure! 6, 10

Murphy v. American Barge Line Co., 169 F. 2d 61

(C. A. 3, 1948), cert. den. 335 U.S. 859 (1948) .6, 10, 11

The Saguache, 112 F. 2d 842 (C. A. 2, 1940) ........ 6,9

The Santa Barbara, 263 Fed. 369 (C. A. 2, 1920) .... 6,10

Sims v. United States of America War Shipping Ad-

ministration, 186 F. 24 972 (C. A. 3, 1951), cert.

Gen. 343 U. G. GIG (1051) ................... 6, 10

IN THE

Supreme Court of the United States.

Ocroser Term, 1953.

PALMER SHIPPING CORPORATION,

Petitioner,

v.

WILLIAM (C. LUTH,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO UNITED

STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT.

To the Honorable, the Chief Justice and the Associate Jus-

tices of the Supreme Court of the United States:

The petitioner, Palmer Shipping Corporation, prays

that a writ of certiorari be issued to review a final judgment

of the United States Court of Appeals for the Third Circuit

entered on February 12, 1954 (R. 118), whieh judgment af-

firmed a final judgment of the United States Distriet Court

for the Eastern District of Pennsylvania awarding main-

tenance and cure to the respondent seaman covering the

period subsequent to his refusal of necessary surgical care

offered by the United States Public Health Service (R. 55).

SUMMARY AND STATEMENT OF MATTER

INVOLVED.

The respondent filed a libel in personam in admiralty

against the petitioner in the United States Distriet Court

for the Eastern District of Pennsylvania to reeover dam-

ages for maintenance and cure and unearned wages which

the respondent, as a member of the crew of Steamship ‘‘Na-

thaniel B. Palmer,’’ claims to be entitled by reason of dis-

a PREG ET SEES SLRS ECE A REN SR ARI EN tro Sa: a Se a arent rt

RI LES Tae eR € : SE a hal

2 Petition for Writ of Certiorari

ability resulting from a gastric resection with residual gas-

tritis, followed several months later by an incisional hernia

(R. 50, 51, 52).

On August 2, 1951, while respondent was employed as

boatswain on petitioner’s Steamship ‘‘Nathaniel B. Palm-

er,’’ he suffered an acute ulcer attack which resulted in his

hospitalization at the British Hospital in Buenos Aires un-

til October 11, 1951 (R. 50, 61, 62). Part of his stomach

was excised and his lower teeth were extracted (R. 50).

The petitioner arranged for his repatriation by air, so that

he returned to his home in Philadelphia on October 17, 1951

(R. 50, 51). Between October 31 and November 27, 1951

he visited the United States Public Health Service station

in Philadelphia for treatment to complete the healing of

the abdominal incision. It was fully healed by December

21, 1951 when the attending physician gave him a statement

certifying that he was ‘‘fit for full duty’’ as a seaman (R.

10). He also received a diet schedule to ease stomach pains

after eating (R. 51), which had been his complaint before

he joined the petitioner’s vessel] in May, 1951 (R. 8, 17),

and he was advised to eat several small meals each day be-

cause of the reduced capacity of his stomach due to the gas-

tric resection (R. 18, 63, 67).

When the respondent received his fit-for-full-duty cer-

tificate he immediately joined the crew of Steamship ‘‘ Dor-

othy’’ as ship’s carpenter (R. 10, 11). About two weeks

later, he first noticed a small swelling in a portion of the

abdominal incision, but it did not interfere with his work

and he made no report of it to anyone (R. 12). He re-

mained on this vessel until April 1, 1952, when he found

that he could not maintain his diet or frequency of meals

so he decided to take employment ashore (R. 13). He was

rejected by a shipyard doctor who informed him that he

had developed an incisional hernia (R. 13). On April 4,

1952 the respondent returned to the United States Public

Health Service doctor at Philadelphia for examination (R.

20, 21, 37).

Petition for Writ of Certiorari 3

The diagnosis of hernia was confirmed, and he was ad-

vised to submit without delay to corrective surgery at Balti-

more Marine Hospital (R. 21, 37, 38, 39). He admittedly

refused to do so, on the ground that he could not support

himself and his family during the period of convalescence

(R. 14, 21).

The respondent was also advised to apply for a new

set of upper and lower dentures at public expense so that

he could masticate his food and reduce his gastritis (R. 21,

22, 40). No such application was made (R. 41).

The petitioner was not informed of the need for a her-

nia operation until June 20, 1952. At that time, the re-

spondent’s proctors demanded that petitioner guarantee

his post-operative maintenance as a condition of accepting

free surgery (R. 102, 103). When no such guarantee was

given, the respondent shipped out as carpenter on Steam-

ship ‘‘Carolyn’”’ from July 2 through September 30, 1952,

and thereafter he has been employed as a longshoreman,

shoring up cargo on ships in the port of Philadelphia (R.

15, 16, 34, 35, 53). He has not requested new dentures or

submitted himself for a hernia operation. At the time of

the trial he complained that he was still feeling the same

pains after eating which he experienced before he joined

the petitioner’s vessel, but not so severe (R. 17).

The District Court found that the respondent seaman’s

refusal to submit to surgery until the petitioner, as his

former employer, would agree to pay for his maintenance

and cure during the post-operative period was reasonable

(R. 53). It also found that the respondent was entitled to

(a) unearned wages from August 2 to August 31, 1951 when

the voyage for which he had been employed was terminated,

and (b) maintenance for the entire period from October 17,

1951 until February 3, 1953 when the trial was held, less

any periods of employment during that time (R. 54).

The petitioner paid the award in respect to unearned

wages and maintenance from October 17 through Decem-

ber 21, 1951. The award for maintenance from December

ORL SL END ENT ET SET NE SEEN PRR

+ Petition for Writ of Certiorari

21, 1951, when the respondent obtained a ‘‘fit for full duty”’

certificate and returned to work, until the date of trial was

appealed on the ground that respondent’s refusal of proper

treatment when duly offered to him thereafter barred his

right of recovery for maintenance.

The Court of Appeals affirmed the judgment, holding

that the rule barring maintenance to seamen after they

have refused treatment ‘‘is not inexorably applied’’ (R.

115), and that his refusal to accept treatment in this case

was justified (R. 116, 117).

This application for a writ of certiorari is presented

to review the said decision as to the liability of the ship-

owner for maintenance and cure subsequent to December

21, 1951.

JURISDICTION.

The judgment of the United States Court of Appeals

for the Third Cireuit was entered on February 12, 1954

(R. 118).

The jurisdiction of this Court to entertain this peti-

tion and grant the same is provided by Section 1254(1) and

Section 2101(c) of Title 28 of the United States Code and

by Rule 38, par. 5(b) of the Supreme Court of the United

States.

OPINIONS BELOW.

The opinion of Judge Ganey of the United States Dis-

trict Court for the Eastern District of Pennsylvania, filed

June 12, 1953 appears on pages 50 to 54, inclusive, of this

record and is not reported.

The opinion of Judge Kalodner of the United States

Court of Appeals for the Third Circuit, filed February 12,

1954, appears on pages 110 to 117 of the record and is re-

ported in 210 F. 2d 224.

Petition for Writ of Certiorari 5

QUESTIONS PRESENTED.

1. Where a seaman refuses medical care for a condi-

tion which resulted from an illness arising in the course of

his maritime employment, is he entitled to payment of

maintenance and cure following such refusal?

2. If the seaman refuses such medical care on the basis

of alleged indigence, where the evidence shows that he had

sufficient funds to support himself and his family during a

reasonable period of convalescence, that he did not notify

his former maritime employer about the required treatment

until nearly three months later, and that he has been vari-

ously employed as a seaman and longshoreman since the

said refusal without submitting himself for treatment,

should his former employer be obligated to pay mainte-

nance for all periods of his unemployment subsequent to

the refusal?

3. Is a seaman entitled to impose upon his former mar-

itime employer the condition that payment of future main-

tenance must be guaranteed in advance before submitting

himself to necessary medical care which has been promptly

offered?

4. Where a gastric resection followed by residual gas-

tritis requires the seaman to avoid intoxicants and certain

types of food, and to eat smaller and more frequent meals

for an indefinite time in the future because of the reduced

capacity of his stomach, has that particular condition not

received the maximum benefit reasonably to be expected

from medical care?

REASONS FOR GRANTING THE PETITION.

The petition should be granted because:

1. The decision of the United States Court of Appeals

for the Third Circuit in holding that respondent is entitled

to payments of maintenance and cure after his refusal to

RELAY pease

6 Petition for Writ of Certiorari

accept a prompt offer of hospital care is in conflict with

prior decisions in this and other circuits which held that an

offer of hospital services is a fulfillment of the shipowner’s

obligation to furnish maintenance and cure to an injured

seaman. United States v. Johnson, 160 F. 2d 789 (C.A. 9,

1947), United States v. Loyola, 161 F. 2d 126 (C.A. 9, 1947),

June v. Pan-American Petroleum & Transport Co., 25 F.

2d 457 (C.A. 5, 1928), The Saguache, 112 F. 2d 482 (C.A.

2, 1940), Marshall v. International Mercantile Marine Co.,

39 F. 2d 551 (C. A. 2, 1930); The Santa Barbara, 263 Fed.

369 (C. A. 2, 1920), The Bouker No. 2, 241 Fed. 831 (C. A.

2, 1917), and The Balsa, 10 F. 2d 408 (C. A. 3, 1926). It

is probably in conflict with the decision of this Court in

Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 531 (1938),

where it was stated that ‘‘courts take cognizance of the

marine hospital service where seamen may be treated at

minimum expense, in some cases without expense, and they

limit recovery to the expense of such maintenance and cure

as is not at the disposal of the seaman through recourse

to that service.’’

2. The present decision constitutes an unreasonable

extension of the exception to the foregoing general rule pre-

viously laid down by decisions in the Third Circuit, to the

effect that rejection of hospital care does not forfeit a sea-

man’s right to subsequent maintenance and cure unless such

rejection is voluntary and without proper reason or excuse.

See Murphy v. American Barge Line Co., 169 F. 2d 61 (C.A.

3, 1948), cert. den. 335 U.S. 859 (1948), and Sims v. United

States of America War Shipping Administration, 186 F.

2d 972 (C.A. 3, 1951), cert. den. 342 U.S. 816 (1951). This

exception to the rule involves an important question of the

federal law relating to sick and injured seamen which has

not been, but should be, settled by this Court.

3. This decision, in holding that a seaman is entitled

to require a maritime employer’s advance guarantee of

Petition for Writ of Certiorari 7

maintenance as a condition for accepting medical care for

the incisional hernia when promptly offered, is so far as

petitioner knows entirely without precedent as a legal cause

for rejecting care, and involves a further question of the

federal law which has not been, but should be, settled by

this Court.

4. The decision in holding that the respondent could

have benefited by ‘‘medical treatment’’ for the residual

gastritis is without support in the evidence. Respondent’s

own doctor testified that all he required was to avoid cer-

tain foods and to eat smaller and more frequent meals for

such period of time as might be required for his stomach

to enlarge to normal size (R. 24, 25, 29, 30). The finding

that this amounted to medical treatment probably conflicts

with the concept of ‘‘curative treatments’’ to which a sea-

man is entitled under the decision of this Court in Farrel!

v. United States, 336 U.S. 511 (1949). In any event, it does

not justify an award of maintenance for periods when the

seaman is following his diet schedule at home and is gener-

ally able to work as a longshoreman, in such an amount

that he will receive maintenance as a seaman for every day

he is not actually employed as a longshoreman.

Respectfully submitted,

Parmer Surppinc Corporation,

By JosepH W. HENpDeERSON,

Of Counsel.

8 Petition for Writ of Certiorari

COMMONWEALTH OF PENNSYLVANIA

County or PHILADELPHIA

JosepH W. Henverson, being duly sworn according to

law, deposes and says that he is counsel for the petitioner

herein and that the facts set forth in the foregoing petition

are true and correct to the best of his knowledge, informa-

tion and belief.

DOSEPH W. SERDERSOW

Swern to and subscribed before me this @/f — day

of April , 1954.

HARRISON G. KILDARE

NOTARY PUBLIC

My Commission Expires Jan. 25, 1955

I hereby certify that I have examined the foregoing

petition and that in my opinion it is well founded and en-

titled to the favorable consideration of the Court and that

it is not filed for the purpose of delay.

JosepH W. HENDERSON,

Counsel for Petitioner.

BRIEF IN SUPPORT OF PETITION FOR WRIT OF

CERTIORARI.

For Opinions Below, Jurisdiction, Statement of the

Matter Involved, and Questions Presented see pages 1 to 5

of the Petition.

ARGUMENT.

I. A Seaman’s Right to Maintenance and Cure Is Barred by

Voluntary Rejection of Hospital Care.

The evidence in this case (summarized under State-

ment of Matter Involved) is clear and undisputed that the

respondent seaman developed a small incisional hernia

after he returned to his employment following the opera-

tion at Buenos Aires for which he had been receiving medi-

cal treatment from the petitioner between August 2 and De-

cember 21, 1951, and that when he had been working three

months the need for limited diet and more frequent meals

induced him to leave his maritime employment on April 1,

1952.

At that time he was informed by a shipyard doctor

that he had an incisional hernia (R. 13). On April 4, 1952,

the doctor at the United States Public Health Service Sta-

tion at Philadelphia told him that he should submit to sur-

gical correction of the hernia at Baltimore Marine Hospital

(R. 21, 37, 38, 39). His refusal to accept this offer of treat-

ment is undisputed (R. 14, 21, 38, 39, 53, 113).

An offer of hospital services is a fulfillment of the ship-

owner’s obligation to furnish maintenance and cure to a

sick or injured seaman. United States v. Johnson, 160 F.

2d 789 (C. A. 9, 1947), United States v. Loyola, 161 F. 2d

126 (C. A. 9, 1947), June v. Pan-American Petroleum &

Transport Co., 25 F. 2d 457 (C. A. 5, 1928), The Saguache,

112 F. 2d 482 (C. A. 2, 1940), Marshall v. International

(9)

Seat a ek ora .

“sn f SEE

10 Brief in Support of Petition

Santa Barbara, 263 Fed. 369 (C. A. 2, 1920), The Bouker

No. 2, 241 Fed. 831 (C. A. 2, 1917), and The Balsa, 10 F. 2d

408 (C. A. 3, 1926). The obligation of a seaman to obtain

relief through recourse to the marine hospital service is

recognized in Calmar S. 8. Corp. v. Taylor, 303 U. S. 525,

531 (1938).

The opinion in the Court of Appeals acknowledged the

existence of this rule and its relevancy to the present case

(R. 113). Nevertheless, the court imposed upon the rule the

condition that the refusal of the seaman to accept such care

when offered must be ‘‘voluntary and without good reason

or excuse’’ in order to bar him from further relief, follow-

ing Murphy v. American Barge Line Co., 169 F. 2d 61

(C. A. 3, 1948), cert. den. 335 U. S. 859 (1948), and Sims v.

United States of America War Shipping Administration,

186 F. 2d 972 (C. A. 3, 1951), cert. den. 342 U. S. 816 (1951).

In the Murphy case, supra, the seaman could not afford

the expense of travelling several hundred miles from his

home to the nearest marine hospital. The court found that

he was a penniless invalid and was in such pain that he

could not work. Transportation expenses were awarded as

a necessary incident of providing maintenance and cure

under the special circumstances involved, which the court

said did not amount to ‘‘voluntary”’ rejection of hospital

care. In contrast to this situation, the present respondent

was in no pain or discomfort from the hernia (R. 34), he

could and did work as a seaman and as a longshoreman

after the refusal to accept hospital care, and his travel ex-

pense was considerably less. This respondent raised an

entirely different issue from that involved in the Murphy

case by rejecting hospital care on the ground that he did

not have enough money to provide for his support during

convalescence.

The Sims case, supra. involved consequential damages

for refusal to pay maintenance. It was contended that the

shipowner’s failure to pay maintenance had rendered it

economically impossible for the seaman to secure the rest,

PP YATY

Brief in Support of Petition 11

medication and proper diet prescribed for his gastric con-

dition. No question of ‘‘voluntary rejection’? was in-

volved. The Murphy case was cited as dictum on the point

that ‘‘it is not enough to give a sick man a hospital ticket;

if he is ill and penniless, transportation to the place of

treatment must be provided. * * * Financial inability to

secure medical treatment can be as great a barrier as phy-

sical inability, and it was in this case’’ (186 F. 2d 972, at

pages 974 and 975).

The present case attempts to limit the ‘‘voluntary re-

jection”’ rule still further. It goes far beyond the previ-

ously unprecedented obligation upon the shipowner to

bring the patient to the place where the offer of hospital

services may become effective. This may be justified on the

logical basis that an offer of hospital service is mean-

ingless unless the patient has sufficient funds for trans-

portation, so that his suffering may be relieved. It is

unreasonable and unjustified to permit a seaman to reject

such an offer when no question of transportation is raised,

and where he is neither penniless nor unemployable nor in

pain.

The respondent imposed as a condition of accepting the

offer of hospital care the shipowner’s guarantee that main-

tenance would be paid during his convalescence. Such a

condition is without legal or moral justification. He was

not entitled to more than payment of his proper main-

tenance when he had accepted the operation and was actu-

ally disabled thereby. This promise on the part of the

shipowner would amount to a contract without considera-

tion, unless the seaman intended to obtain some benefit

which he would not otherwise have been entitled to receive.

It did not amount to legal cause for rejecting hospital care.

He had no right to demand such a promise, and the ship-

owner was under no obligation to give it.

Furthermore, the rejection of hospital care in this case

was not contemporaneous with the respondent’s demand

for an advance guarantee of maintenance. He refused the

LES TAA Moe MEE NSS TE BH NG NEM TA SILI LOE IOY PIO SET TE GE APE ay RE MELE Y-

12 Brief in Support of Petition

operation on April 4, 1952. The demand for maintenance

during convalescence did not come until June 20, 1952,

nearly three months later (R. 52, 102). The refusal of

care in April was ‘‘voluntary’’ within the meaning of the

general rule. The lower courts nevertheless awarded the

respondent his maintenance during the period prior to the

demand (R. 53, 54).

The present case demonstrates the unjust burden

placed upon shipowners through the attempted exception

to the rule of voluntary rejection of care by seamen. If

applied without a reasonable definition of ‘‘voluntary,”’ it

opens the door to countless abuses of the seaman’s contract,

by imposing any conditions on acceptance of medical treat-

ment which devious minds may seek to contrive. The in-

tegrity of the maintenance and cure principle is involved.

All shipowners and their underwriters are directly con-

cerned in the result.

The situation requires prompt clarification by this

Court, so that this important question of federal law may

be settled.

II. The Evidence Shows that the Respondent’s Refusal to

Accept Medical Care Was Neither Reasonable Nor

Proper, and Therefore Was Voluntary.

The basic importance of this case to the shipping in-

dustry is the extreme liberality of interpretation given by

the Court of Appeals to ‘‘voluntary rejection’? of medical

care.

In finding that the respondent seaman was reasonable

in refusing a hernia operation when offered to him in April,

1952, the Court below conceded that his excuse of indigence

was open to question by his admission that he had just re-

ceived over $1,000.00 in wages from his three consecutive

voyages on Steamship ‘‘Dorothy’’. This was explained

away in the opinion with the comment that ‘‘he had been

at sea for three months; that he had a wife and son and he

Bevin REDE PNM ER ELEN IAT BET MOL LENE TRE LOT LILIES AIL IER I AO EO SRR IONE. TTI GIT

Brief in Support of Petition 13

maintained a home for them and when he returned from

sea he had to discharge obligations incurred for the shelter

and maintenance of his family during his absence’’ (R.

116). There was nothing in the testimony to support the

Court’s conclusion that he had to discharge obligations in-

curred during his absence. The respondent testified that

he had received the money but said nothing about meeting

debts then due. His testimony referred only to his opinion

that he would not be able to live on the money during con-

valescence (R. 14, 21, 102). He had only $367.93 for his

support between October 23 and December 21, 1951 (R. 19).

The Court below made no mention of that fact, nor that

the respondent worked only 17 days between April 1 and

July 2, 1952 (R. 13, 15, 52). His proved ability to sustain

himself for at least two months, which the United States

Public Health Service doctor testified was a reasonable

period of recovery (R. 38, 39), contradicts the respondent’s

excuse of indigence.

If the respondent had a genuine excuse of poverty to

reject medical treatment in April, 1952, he would not have

waited until nearly three months later to bring this situa-

tion to the attention of the petitioner (R. 102).

Where a seaman is declared by competent doctors to

be fit for duty, and thereafter he complains of some disa-

bility which he contends arose during his subsequent em-

ployment, the shipowner is justified in requiring proper

proof that the new disability is connected with the former

illness. There is no presumption that the two disabilities

are causally connected. The shipowner is entitled to rely

on a ‘‘fit for duty’’ certificate to the same extent as the

seaman (R. 53; Finding of Fact No. 20). He is not bound

to accept the seaman’s assertion of liability, without strict

and satisfactory proof, before undertaking to pay main-

tenance.

Under the present ruling of the Court below that a

seaman may refuse medical treatment on the grounds which

were found reasonable in this case, and still be entitled to

14 Brief in Support of Petition

maintenance and cure, there is no limit to the conditions

which may be imposed on the shipowner. The seaman may,

for example, demand a guarantee that he shall receive main-

tenance for a period of recovery estimated by his own doe-

tors rather than the shorter period estimated by govern-

ment doctors, which oceurred in this ease. He may demand

that payment be made in advance, which was declared by

this Court to be contrary to the best interest of seamen in

Farrell v. United States, 386 U.S. 511 (1949). He may

spend his available funds in spite of alleged indigence and

three months later demand a guaranteee, as this respondent

did.

The shipowner’s obligation to pay maintenance and

cure should be limited to a bona fide offer of adequate med-

ical care. If any exception is to be made on the basis of a

‘voluntary’? refusal, the line between ‘‘voluntary’’ and

‘involuntary’ should be drawn in such terms by this Court

that the shipowner'’s ancient obligation may not be unduly

or unjustly extended.

III. Respondent’s Residual Gastritis Had Reached the

Point of Maximum Medical Improvement in December,

1951.

The respondent's doctor testified at the trial that the

stomach pains diagnosed as residual gastritis which some

times may follow a gastrie resection required only the

avoidance of certain foods and intoxicants (R. 24, 29). The

petitioner's doctor testified that there was no reasonable

basis to expect improvement or benefit from medical care

(R. 42, 48). The finding of the Court below that the gas-

tritis could have been improved by proper medical treat-

ment (R. 117) is without support in the evidence,

Restricting the diet by avoidance of certain foods and

intoxicants is not within the concept of curative treatment

approved by this Court in Farrell v. United States, 336

U.S. 511, 519 (1949). In that case, the seaman was suffer-

ing from post-traumatic convulsions which admittedly

YORE SE RIE ite tB i ent EMT hm RSP Pa LPO th PRATT By LEY ONIN ED EATER, SA BENPEN ZED ASE EP AGERE ILIA ATEN SEITE

Brief in Support of Petition 15

would require some medical care to ease attacks of head-

aches and epileptic convulsions.

To the extent that the Court below interpreted dietary

control as curative treatment, the decision conflicts with

the meaning of ‘curative treatment’’ as used in the Farrell

ease. This term requires a more concrete definition to

avoid misinterpretation. Furthermore, maintenance dur-

ing curative treatment should be limited to periods when

the patient is under medical care and is actually disabled

from working. Maintenance in the present case was

awarded for all periods when the respondent was not em-

ployed, regardless of medical care and availability of shore

employment.

Extension of the shipowner’s obligation for main-

tenance and cure to the degree here shown indicates the

pressing need for review, so that this important question of

federal law relating to seamen may be settled.

IV. Conclusion.

We therefore submit that the petitioner's prayer for a

writ of certiorari should be granted.

Respectfully submitted.

Joseru W. Hrenprrson,

J. Writes Henperson,

Attorneys for Petitioner.