(dissenting).
I dissent because, in my opinion, any evidence of the maintenance and cure payments made by the appellant pursuant to the terms of the collective bargaining agreement was totally immaterial to the question of the amount of damages recoverable by the appellee in the case at bar.
In this suit, brought under the Jones Act, 46 U.S.C.A. § 688, the appellee claimed that he was injured while a seaman in the employ of the appellant, and that such injury resulted solely from the appellant’s negligence or the unseaworthiness of the vessel. Appellee sought to recover for loss of wages from August 30, 1955, the date of his signing off the appellant’s ship, through November 10, 1955, when he was certified fit for duty, and for pain and suffering due to the injury. In the course of the trial the appellant sought to introduce evidence, in order to reduce the amount of the ap-pellee’s possible recovery, to show that the company paid the appellee maintenance and cure at the rate of $8 a day, a total of $576, pursuant to a collective bargaining agreement with the appellee’s union which established that rate. The trial court ruled that the evidence was inadmissible as likely to confuse and prejudice the jury, but instructed the jury that in considering the amount of the appellee’s damages they were “not (to) take into consideration the cost of his room and board during his period of convalescence.” On the basis of the ap-pellee’s earnings prior to the date of his injury, the court also charged the jury that they could award the appellee as much as, hut no more than, $831 for his lost wages. The jury returned a general verdict awarding the appellee $1,600.
*374The appellant, in appealing from the trial court’s refusal to admit evidence regarding the maintenance and cure payments, bases its claim on two contentions. First, it argues that, since an injured seaman suing in tort for compensatory damages cannot secure a double recovery for his lost wages, the maintenance and cure payments are admissible in mitigation of damages. The appellant’s second contention is that Section 5 of the Federal Employer’s Liability Act, 45 U.S.C.A. § 55, which provides “(t)hat in any action brought against any * * * common carrier under or by virtue of any of the provisions of this chapter, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which said action was brought” and which is applicable to the case at bar by virtue of 46 U.S.C.A. § 688, permits that the amount paid for maintenance and cure be set off against the tort claim of the injured seaman. Although this latter point is not mentioned in the majority opinion in reversing the decision of the court' below, it is necessary to consider both of the appellant’s contentions in order to affirm the result in the trial court. Each of these arguments is, in my opinion, without merit.
Without needlessly repeating the review of the law with regard to the rights of an injured seaman which is amply set forth in the majority opinion, there are certain distinctions between the seaman’s rights under general maritime law and his rights under the Jones Act which must be borne in mind. Under general maritime law a seaman who becomes ill or is injured during the course of his employment is entitled to maintenance and cure at the expense of the shipowner. These rights are part of the consideration for the seaman’s agreement to work on the ship, and thus are not predicated on a claim that the illness or injury was due to negligence or the unseaworthiness of the vessel. Under the Jones Act an injured seaman may assert a claim against the shipowner on the ground that the latter was negligent and join therewith a claim based on the unseaworthiness of the vessel. This tort claim is in addition to, and independent of, the seaman’s right to maintenance and cure. Pacific S. S. Co. v. Peterson, 278 U.S. 130, 49 S.Ct. 75, 73 L.Ed. 220.
It is in the application of these principles to the case at bar that I disagree with the views of my brothers. The majority opinion apparently completely disregards the fact that the maintenance and cure payments made to the appellee were made pursuant to the provisions of a collective bargaining agreement with the appellee’s union. Thus, while it is undoubtedly sound law that, absent such an agreement, a seaman who spends no money for his lodging and medical cafe as the result of an injury cannot recover any sum from the shipowner for maintenance and cure, Johnson v. United States, 333 U.S. 46, 50, 68 S.Ct. 391, 92 L.Ed. 468; Stankiewicz v. United Fruit S. S. Corp., 2 Cir., 229 F.2d 580, 581; Field v. Waterman S.S. Corp., 5 Cir., 104 F.2d 849, 851, unless the provision in the collective bargaining agreement which fixed a rate for maintenance and cure payments is void, this rule of law has no bearing on the case at bar. There is no intimation in the majority opinion that the maintenance and cure provision is invalid, and indeed there would seem to be no sound reason for such a holding.
Since the appellee was entitled, under the union contract, to the maintenance and cure payments, I turn to another possible ground for reversal. The appellant contends that those payments, plus the amount awarded the appellee by the jury, constituted a “double recovery.” In my opinion, however, they did not amount to excessive compensation because the verdict did not include recovery for board and lodging and there was no claim submitted by the appellee for medical expenses. If the appellee actually spent more than $576 for expenses *375within the category of maintenance and cure, he would have no claim against the shipowner for this excess because of the rate fixed by the contract. Likewise, if he spent less than this amount the shipowner cannot be heard to claim a “rebate” after having agreed to the rate in the contract. The right to maintenance and cure payments was separate and distinct from the appellee’s claim for lost wages and pain and suffering due to the injury, and thus payments actually made for maintenance and cure in no way affected the amount to which the appellee was entitled in his suit under the Jones Act.
In other words, the maintenance and cure claim had been disposed of because appellee had no medical expenses and his maintenance had been paid as provided in the collective bargaining agreement; the claim asserted in this action under the Jones Act was for wages, in a sum not to exceed $831, and for compensation for his pain and suffering; the amounts paid pursuant to the terms of the collective bargaining agreement were quite irrelevant to the claim for wages or that based on pain and suffering; and the trial judge properly and wisely refused to take evidence of these payments and instructed the jury to confine themselves on the subject of damages to lost wages and pain and suffering. With all deference to my brothers I think a basic error in their reasoning is the connection they see between appellee’s claim for lost wages and the maintenance payments made pursuant to the terms of the collective bargaining agreement. In my view the two bear no relation whatever one to the other. And I think that to the extent that Guay v. American President Lines, Ltd., 81 Cal.App.2d 495, 184 P.2d 539, expresses views to the contrary it states bad law and should not be followed. The step now taken by my brothers can only lead to delayed payments, confusion and uncertainty in a phase of the law of seamen’s rights that should be as simple and clear as possible.
Nor do I find any difficulty with our Per Curiam in Perez v. Suwanee Steamship Co., 2 Cir., 239 F.2d 180, which is quite consistent, I think, with the views above expressed. In Perez the general damage claim was dismissed on the merits, leaving only the claim for maintenance and cure. The trial judge fixed the maintenance to include the entire period of the seaman’s “convalescence,” despite the fact that he had been gainfully employed during part of that time. In deducting the amount of the earnings from the award we did no more than reaffirm the well settled principle that the purpose of maintenance and cure is to make the seaman whole, “to put the seaman in as good a position as to board and lodging as he would have been in, if he had not become ill.” And we added: “If what he earned is added to the full allowance, he will get something more in addition to his maintenance.” This is a very different thing from saying that the claim for wages in a Jones Act case is to be diminished by payments made for maintenance and cure.
Similarly, Section 5 of the F.E. L.A. does not entitle the appellant to set off any portion of the amount paid for maintenance and cure against the verdict recovered below because the jury was specifically instructed not to include an amount for board and lodging in its verdict. In other words, Section 5 prohibits double recovery just as does the case law on this subject and the appellee in the case at bar has not received such excessive compensation.
I would affirm the judgment appealed from.
Before CLARK, Chief Judge, and HINCKS, LOMBARD, WATERMAN, and MOORE, Circuit Judges.