Robert H. Jackson

“ Moreover, there is no proof whatever that, if a hemorrhage within the eye once occurred to an extent not absorbed by the ordinary natural processes, it is curable at all. If this petitioner was destined to lose his eye at all odds, he hardly establishes a cause of action by saying it should have occurred at Honolulu instead of San Francisco. Hospitalization either on ship or on land is not in itself a cure. ”

“ The loss of the petitioner's eye is a serious handicap. But damages may be recovered under the Jones Act only for negligence. Jamison v. Encarnacion, supra, 281 U.S. at page 639, 50 S.Ct. at page 442, 74 L.Ed. 1082. Whether the legislative policy of compensating only on the basis of proven fault is wise is not for us to say, nor is it our function to circumvent it by reading into the law a theory, however disguised, that a physician who undertakes care guarantees cure, and that each unsuccessful effort of the physician may be visited with a successful malpractice suit. ”

“ When the seaman becomes committed to the service of the ship the maritime law annexes a duty that no private agreement is competent to abrogate, and the ship is committed to the maintenance and cure of the seaman for illness or injury during the period of the voyage, and in some cases for a period thereafter. ”

“ He said: 'If, by law or by choice, the defendant was bound to provide a surgeon for its ships, its duty to the passenger was to select a reasonably competent man for that office, and it is liable only for a neglect of that duty. ”

“ The Secord case gives only a charge to a jury in a case where the issue was liability of a railroad to a passenger for negligent treatment by a physician in its employ. The McDonald case held a hospital immune from liability for negligence of its house surgeon on the ground that it was a charitable institution.↑ The duty is not to 'cure' in a literal sense, but to provide care, including nursing and medical attention. ”

“ Its measure depends upon the circumstances of each case-the seriousness of the injury or illness and the availability of aid. Although there may be no duty to the seaman to carry a physician, the circumstances may be such as to require reasonable measures to get him to one, as by turning back, putting in to the nearest port although not one of call, hailing a passing ship, or taking other measures of considerable cost in time and money. ”

“ There is a similar obligation to leave a seriously injured seaman in a port at which a vessel has arrived. [9] This duty of course exists where no adequate treatment can be given on the ship. Here the ship's doctor was not an eye specialist; the ship did not have aboard the medicines which competent physicians in San Francisco applied; and there was no x-ray although one was later found essential for diagnosing the ailment. It is not surprising that the ship should lack these facilities, for every merchant vessel cannot be a floating hospital ”

“ Injury now alleged to cause the disability was a scale of paint in the eye and it is the opinion of the surgeon in charge that this would give an intraocular hemorrhage such as was present in the right eye. ”

“ The Jones Act reads in pertinent part as follows: 'Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply ”

“ Our own experience vividly demonstrates that careful and competent men frequently reach different conclusions despite the fullest and most careful examination of all available data, including the difference of opinion on the part of their associates. In the present case neither doctor had the benefit of all the facts of the eye's history. ”

“ Canfield, Fed.Cas.No.11,641, 1 Sumn. 195.↑ The Iroquois, 194 U.S. 240, 242, 24 S.Ct. 640, 641, 48 L.Ed. 955.↑ The United States guarantees the cost of maintenance and return to the United States of injured seamen discharged in foreign ports. ”