(concurring).
I concur in the result. So soon after Perez v. Suwanee S. S. Co., 2 Cir., 1956, 239 F.2d 180, 181, an en banc affirmance of the district court’s exclusionary ruling should be by a unanimous court. Hence, though I was of the majority that held otherwise in our former decision, I now join with the other active circuit judges of the circuit in such an affirmance. My only excuse for writing any separate remarks is that I do not wish the result reached here to be interpreted as meaning more than the individual facts of this case justify.
Reardon based his libel upon the Jones Act. He alleged that he was injured in the course of his employment due solely to the shipowner’s negligence and that by reason thereof the vessel upon which he was employed was unseaworthy. He did not particularize the damages he sought to recover, but they were properly limited to compensation for loss of money wages any incapacity resulting from his injury prevented him from earning, and for his pain and suffering.
In his libel Reardon significantly did not include a count praying for an allowance for maintenance and cure. He appears to have been well satisfied in that particular; and he has successfully prevented his employer from disclosing any *377facts relative thereto. His employer sought to prove that pursuant to a collective bargaining agreement it had paid him and he had received $8.00 a day for 72 days as such an allowance in lieu of receiving actual maintenance, and that the total sum so paid exceeded Reardon’s actual maintenance expenses. Its purpose was to have this excess money payment credited against the money damages Reardon sought to recover for his loss of money wages.
Reardon sought no adjudication by the district court respecting the sufficiency of the $8.00 a day allowance, or the adequacy of the 72-day duration of these $8.00 daily payments. The district court held that these maintenance payments had no application to damage claims asserted under the Jones Act, the claims that Reardon did present to it for adjudication. It held that inasmuch as the libelant had not sought any allowance for maintenance and cure from the court, the respondent could not show any over-allowances it may have made out of court therefor.
Lest we create further confusion, we should not attempt to ascribe further reasons to support our affirmance than those the court below acted upon. Where the seaman has included a prayer in his libel for the granting of an allowance for maintenance and cure we have permitted shipowners to put in defenses looking toward reductions of the amounts claimed. Perez v. Suwanee S. S. Co., supra; Wilson v. U. S., 2 Cir., 1956, 229 F.2d 277, where Judge Frank said of the nature of the claim for allowance for maintenance and cure, “it is sufficiently ‘contractual’ so that the seaman has the equivalent of the so-called ‘duty’ to mitigate damages.” Supra at page 281. And when the seaman has expended nothing for the maintenance he seeks the court to allow him, shipowners heretofore have been permitted to show it, thereby preventing the seaman from recovering anything. Johnson v. U. S., 1948, 333 U.S. 46, 50, 68 S.Ct. 391, 92 L.Ed. 468; Field v. Waterman S. S. Corp., 5 Cir., 1939, 104 F.2d 849; Stankiewicz v. United Fruit S. S. Corp., 2 Cir., 1956, 229 F.2d 580, 581; Williams v. U. S., 228 F.2d 129, 134, certiorari den., 351 U.S. 986, 76 S.Ct. 1054, 100 L.Ed. 1499; The Bay Mead, 9 Cir., 1937, 88 F.2d 144. By our present decision I would not wish it understood that the decisions I mention are no longer applicable in this circuit.
Moreover, carefully guarded as the mention of it is, I regret the mention in the court’s opinion of the varied ways that district judges presently handle claims for maintenance and cure when such claims are coupled in the same libel with Jones Act claims. There was no coupling here