dissenting:
I respectfully dissent from the majority’s opinion in this matter. The question presented for our review is whether a person who resides on shore and commutes to his or her job as a day laborer aboard a ferry is entitled to compensation for lodging and food, if he or she becomes incapacitated, in addition to receiving long-term disability benefits paid for by his or her employer that fully cover his living expenses.
In concluding that Mr. Kopacz is entitled to an additional payment for the cost *636of his lodging and meals, the majority, citing this Court’s decision in Barnes v. Andover Co., L.P., 900 F.2d 630 (3rd Cir.1990), states as follows: “Although Barnes acknowledged that there was ‘some logic’ in denying maintenance to shore-based seamen, the court stressed that the ‘life of the law’ is ‘experience,’ not ‘logic.’ ” Majority Op. at 627. In a subsequent passage, the majority states: “Barnes strongly suggested that commuter seamen are also entitled to maintenance.” Majority Op. at 628. I disagree with this reading of Barnes. In fact this Court expressly declined to reach this question in Barnes. Instead, this Court stated:
Whatever the merits of the double recovery objection for maintenance paid to land-based seamen, that argument is inapplicable to Barnes. Barnes was not shorebound and Andover does not suggest that his wages were fixed in contemplation of his providing his own food and lodging. Thus, the fact that Barnes chose to use his wages to maintain an on-shore residence rather than on entertainment or on some frivolity should not be used to reduce his recovery, particularly since there is no question here of any double recovery as a result of land-based wages.”
Id. at 643 (emphasis added).
Moreover, the fact that “DRBA cites no authority supporting withholding maintenance from commuter seamen,” Majority Op. at 628, does not logically support a conclusion that a commuter seaman is therefore entitled to maintenance without some showing that the equities favor this result. I cannot join the majority’s number because I am persuaded that extending the maritime doctrine of maintenance to an employee who commutes each day from his shore-based home to his job as a day laborer on a ferry boat is contrary to both logic and experience.
I
As noted in Barnes, this Circuit has not yet determined whether the doctrine of maintenance applicable to seamen who are incapacitated while on ships that sail to distant ports should be extended to commuter seamen.
In his brilliant Harvard Law School lectures, Justice Oliver Wendell Holmes explained the evolution of Common Law principles as follows:
The object of this book is to present a general view of the Common Law. To accomplish the task, other tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage. The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.
*637Oliver Wendell Holmes, Jr., The Common Law 3-4, (John Harvard Library ed., Belknap Press of Harvard Univ. Press 2009) (1881).
The woeful experience suffered by seamen incapacitated on lengthy voyages to distant ports that led to the adoption of the maintenance doctrine was vividly described by Justice Story in 1823 in Harden v. Gordon, 11 F. Cas. 480 (C.C.D.Me.1823) (No. 6,047).
Seamen are by the peculiarity of their lives liable to sudden sickness from change of climate, exposure to perils, and exhausting labor. They are generally poor and friendless, and acquire habits of gross indulgence, carelessness, and improvidence. If some provision be not made for them in sickness at the expense of the ship, they must often in foreign ports suffer the accumulated evils of disease, and poverty, and sometimes perish from the want of suitable nourishment. Their common earnings in many instances are wholly inadequate to provide for the expenses of sickness; and if liable to be so applied, the great motives for good behavior might be ordinarily taken away by pledging their future as well as past wages for the redemption of the debt. In many voyages, particularly those to the West Indies, the whole wages are often insufficient to meet the expenses occasioned by the perilous diseases of those insalubrious climates. On the other hand, if these expenses are a charge upon the ship, the interest of the owner will be immediately connected with that of the seamen. The master will watch over their health with vigilance and fidelity. He will take the best methods, as well to prevent diseases, as to ensure a speedy recovery from them. He will never be tempted to abandon the sick to their forlorn fate; but his duty, combining with the interest of his owner, will lead him to succor their distress, and shed a cheering kindness over the anxious hours of suffering and despondency.
Id. at 483. Justice Story’s opinion in Harden was written in his capacity as the Circuit Justice for the District of Maine.
In 1903, the United States Supreme Court referred to Justice Story’s decision in Harden as the first case in this country that adopted the doctrine of maintenance and cure. The Osceola, 189 U.S. 158, 172, 23 S.Ct. 483, 47 L.Ed. 760 (1903). The Court summarized Justice Story’s opinion as follows:
Justice Story held that a claim for the expenses of cure in case of sickness constituted in contemplation of law a part of the contract for wages, over which admiralty had a rightful jurisdiction. The action was in personam against the master and owner for wages and other expenses occasioned by the sickness of the plaintiff in a foreign port in the course of the voyage, which were allowed.
Id. (emphasis added). The Court held in The Osceola that, upon reviewing English and American authorities, the law
may be considered as settled upon the following proposition[ ]: ... “[t]hat the vessel and her owners are liable, in case a seamen falls sick or is wounded in the service of his ship, to the extent of his maintenance and cure, and to his wages, at least as long as the voyage is continued.
Id. at 175, 23 S.Ct. 483. The Court also held “[t]hat the seaman is not allowed to recover an indemnity for the negligence of the master, or any member of the crew, but is entitled to maintenance and cure, whether the injuries were received by neg*638ligence or accident.” Id.11
In each of the cases in which the Supreme Court has applied Justice Story’s analysis of the experiences of seamen that support application of the doctrine of maintenance and cure, the facts demonstrate that the seaman was incapacitated while he served as a member of a vessel traveling to distant ports. In Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 58 S.Ct. 651, 82 L.Ed. 993 (1938), the Court defined the terms “maintenance” and “cure” as follows: “The maintenance exacted is comparable to that to which the seaman is entitled to while at sea and ‘cure’ is care, including nursing and medical attention, during such period as the duty continues.” Id. at 528, 58 S.Ct. 651 (internal citations omitted).
In Aguilar v. Standard Oil Co. of New Jersey, 318 U.S. 724, 63 S.Ct. 930, 87 L.Ed. 1107 (1943), the injured seaman was a messman on a steamship engaged in coastwise trade between New Orleans and East Coast and Gulf Coast ports. While the vessel was moored in a port in Philadelphia, the seaman was injured as he left the ship on shore leave. Id. at 725, 63 S.Ct. 930. In a consolidated companion case, a seaman on shore leave was injured as he walked back to his ship by the driver of a motor vehicle not owned, operated or controlled by the ship owner. Id. at 725-26, 63 S.Ct. 930.
Citing Justice Story’s decision in Harden, the Court in Aguilar explained its holding that the seamen were entitled to cure and maintenance as follows:
From the earliest times, maritime nations have recognized that unique hazards, emphasized by unusual tenure and control, attend the work of seamen. The physical risks created by natural elements, and the limitations of human adaptability to work at sea, enlarge the narrower and more strictly occupational hazards of sailing and operating vessels. And the restrictions which accompany living aboard a ship for long periods at a time combine with the constant shuttling between unfamiliar ports to deprive the seaman of the comforts and opportunities for leisure, essential for living and working, that accompany most land occupations. Furthermore, the seaman’s unusual subjection to authority adds the weight of what would be involuntary servitude for others to these extraordinary hazards and limitations of ship life.
Accordingly, with the combined object of encouraging marine commerce and assuring the well-being of seamen, maritime nations uniformly have imposed broad responsibilities for their health and safety upon the owners of ships. In this country these notions were reflected early, and have since been expanded, in legislation designed to secure the comfort and health of seamen aboard ship, hospitalization at home and care abroad. The statutes are uniform in evincing solicitude that the seamen shall have at hand the barest essentials for existence. They do this in two ways. One is by recognizing the shipowner’s duty to supply them, and the other by providing for care at public expense. The former do *639not create the duty. That existed long before the statutes were adopted. They merely recognize the preexisting obligation and put specific legal sanctions, generally criminal, behind it.
Id. at 727-29, 63 S.Ct. 930 (footnotes omitted).
In Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962), the plaintiff served as a seaman on the respondent’s vessel from November 26, 1956 to March 2, 1957. He was discharged on the termination of a voyage. On March 2, 1957, the ship’s master furnished the seaman with a certificate to enter a United States Health Services Hospital. He was examined five days later at the hospital. He was admitted as a patient on March 18, 1957 and treated for tuberculosis. He was discharged to an outpatient status on June 6, 1957. He continued to receive treatment in that status for over two years. Id. at 528, 82 S.Ct. 997.
The ship owner declined to provide the seaman with maintenance because he “never complained of any illness during his four months’ service.” Id. The seaman hired a lawyer to enforce his right to maintenance. He also requested an award of attorney’s fees. The District Court denied his request for the payment of his attorney’s fees. The Court of Appeals affirmed the denial of attorney’s fees and held that the amount he earned as a taxi driver had to be deducted from the amount he was entitled to for maintenance and cure. Id. at 529, 82 S.Ct. 997.
Relying on its decision in Calmar S.S. Corp. v. Taylor, and Justice Story’s opinion in Harden, the Supreme Court held in Vaughan that “[i]t is difficult to imagine a clearer case of damages suffered for the failure to pay maintenance than this one.” Id. at 531, 82 S.Ct. 997.
The Supreme Court has not extended the maritime doctrine of maintenance and cure to persons who commute to work aboard vessels that do not sail to distant ports. Instead, the Court has continued to adhere to Justice Story’s explanation of the policy underlying that duty in Harden. For example, in Vaughan, the Court stated:
The reasons underlying the rule, to which reference must be made in defining it, are those enumerated in the classic passage by Mr. Justice Story in Harden v. Gordon, Fed. Cas. No. 604-7 (C. C): the protection of seamen, who, as a class, are poor, friendless and improvident, from hazards of illness and abandonment while ill in foreign ports; the inducement to masters and owners to protect the safety and health of seamen while in service; the maintenance of a merchant marine for the commercial service and maritime defense of the nation by inducing men to accept employment in an arduous and perilous service.
369 U.S. at 531, 82 S.Ct. 997 (quoting Calmar S.S. Corp. v. Taylor, 303 U.S. at 528, 58 S.Ct. 651) (emphasis added).
The undisputed facts in this matter demonstrate that Mr. Kopacz was employed by the DRBA as a deckhand on its ferries. It was his day job. He commuted from his home. He did not receive lodging or meals from his employer. He reported an on-the-job injury on December 24, 2004. He was found to be unfit for duty on DRBA’s ferries on January 5, 2005.
Mr. Kopacz received benefits through a long-term disability policy paid for by his employer which provided for the payment of his full wages for the first ninety days of his disability, and 60% of his wages thereafter so that he would continue to be provided an income in the event his ability to earn a living was interrupted or terminated by prolonged disability.
*640Mr. Kopacz received his full pay for ninety days. Thereafter he was paid $2,192 per month. The parties stipulated that his monthly living expenses totaled $2,190 per month.
Mr. Kopacz applied for Social Security Administration (“SSA”) disability payments. SSA approved his application in October of 2006. SSA sent him a check in the amount of $17,142 which represented his benefits retroactive to July 5, 2005.
Thereafter, Mr. Kopacz received SSA benefits of $1,167 monthly. The DRBA’s long-term disability benefits policy provided that SSA benefits are an off-set to those provided by the policy. Hartford, the long-term disability insurer, requested that Mr. Kopacz repay the overpayment of $16,607.92 which arose when Mr. Kopacz was awarded SSA payments retroactively. Mr. Kopacz refused. He insisted that DRBA repay the Hartford $16,607.92 and the $1,100 per month that Hartford was deducting.
DRBA filed this action in the District Court seeking a declaration that it had fully met its obligations to Mr. Kopacz. The District Court concluded that DRBA was required to make payments to Mr. Kopacz for his maintenance to cover the cost of his lodging and food, notwithstanding the fact that DRBA had provided monthly living expenses benefits through a long-term disability policy.
The foregoing facts do not meet the requirements for the application of the doctrine of maintenance set forth in Harden and adopted by the Supreme Court in The Osceola. As the Court instructed in Vaughan, the “reasons underlying the rule to which reference must be made in defining” the doctrine of maintenance are those enumerated by Justice Story in Harden. Vaughan, 369 U.S. at 531, 82 S.Ct. 997. In awarding maintenance in this matter, the District Court failed to set forth the experiences encountered by a commuter seamen that define his or her entitlement to maintenance.
There is no evidence in the record that Mr. Kopacz is a poor, friendless, and improvident person. He was not subjected to the perilous hazards and sudden illnesses that can be incurred from the change of climate while sailing on the high seas. He was not subject to being abandoned in a distant port — without wages, or the means of providing for his own maintenance. Therefore, he clearly did not qualify for maintenance.
In extending the doctrine of maintenance and cure to day laborers who work on ferries and who do not face the hazards described by Justice Story, the District Court ignored Justice Holmes’s admonition that we must look to real-life experience in creating new rules of law. The fact that the Supreme Court has categorized seamen as “wards” of admiralty does not justify an extension of the maintenance doctrine to seamen who commute to work each day, and in addition, receive benefits through disability insurance and social security that were unavailable to Justice Story’s hapless seamen who depended on their masters to provide their lodging, food, and medical care. In my view, an award of maintenance under these circumstances clearly results in an impermissible double recovery for Mr. Kopacz.
II
Perhaps an even stronger argument that an award of maintenance and cure does not apply to a commuter seaman who does not sail to distant ports, and does not receive lodging and food aboard his employer’s ferry boats, is that such a rule is contrary to the Shipowners’ Liability (Sick and Injured Seamen) Convention. See Convention Between the United States of *641America and Other Members of the International Labor Organization Respecting Shipowners’ Liability in Case of Sickness, Injury, or Death of Seamen, October 24, 1936, 54 Stat. 1693, 40 U.N.T.S. 169, attached hereto. The Shipowners’ Liability Convention, proclaimed by the President on September 29, 1939, provides in section 1 of Article 4 that: “The ship owner shall be liable to defray the expense of medical care and maintenance until the sick or injured person has been cured, or until the sickness or incapacity has been declared of a permanent character.” 54 Stat. 1693, art. 4, § 1.
In section 3 of Article 4, the Convention also provides that:
if there is in force in the territory in which the vessel is registered a scheme applying to seamen of compulsory sickness insurance, compulsory accident insurance or workmen’s compensation for accidents, national laws may provide— (a) that a shipowner shall cease to be liable in respect of a sick or injured person from the time at which that person becomes entitled to medical benefits under the insurance or compensation scheme.
Id. at art. 4, § 3. The United States of America adopted the Convention subject to the understanding that “the United States understands and construes the words ‘maritime navigation’ appearing in this Convention to mean navigation on the high seas only.” Id. at 1704, U.S. ratification subject to understandings.
The Senate of the United States gave its consent on June 13, 1938 to the ratification of the Convention by the President of the United States. President Franklin D. Roosevelt declared on September 29, 1939 that he “caused the said convention to be made public to the end that the same and every article and clause thereof may be observed and fulfilled in good faith by the United States of America and the citizens thereof ... subject to understandings above recited_” Id. at Final Proclamation.
Extending the doctrine of maintenance and cure to commuter seamen, as adopted by the United States in ratifying the Convention, is in direct conflict with its limitation to seamen incapacitated on voyages on the high seas.
Conclusion
The Supreme Court’s decision in The Osceola limited the application of the doctrine of maintenance and cure to seamen incapacitated during voyages to distant ports where the record shows the following facts:
One. Because of the length of the voyage, the shipowner has provided the seaman with lodging and food.
Two. The shipowner has ceased paying wages to the seaman because of his unfitness for duty.
Three. The shipowner has failed to compensate the seaman for his food or lodging, for which he is unable to work because of his injury.
Four. The shipowner has failed to pay for the seaman’s medical care and hospitalization.
Five. The seaman has been abandoned in a foreign port without funds to pay for his medical treatment and transportation to his home.
Mr. Kopacz has not been subjected to any of these deprivations. His ferry boat did not sail to distant ports on the high seas. Because he commuted to his work assignment each day from his home, he did not eat or sleep aboard the shipowner’s ferryboats. He was not abandoned in a distant port without compensation for his living expenses and medical care. The shipowner paid for disability insurance *642that was sufficient to cover his monthly-living expenses.
I am sure Justice Story would be astonished to learn that a commuter seaman, whose monthly living expenses were provided for by his shipowner, must also be furnished additional funds to pay for lodging and food that he was not entitled to receive during his eight-hour shift, solely because he is a ward of admiralty.
While I am not sure Justice Holmes had the doctrine of maintenance and cure in mind when he instructed us that experience plays a dominant role in the evolution of the Common Law, I doubt seriously that he would have concluded that the relatively bland experience of a commuter seaman, as compared to one whose work takes him or her to distant parts on the high seas, would justify an extension of the doctrine of maintenance to seamen who do not encounter the conditions described in the Supreme Court’s decision in The Osceola.
It is also troubling that an award of maintenance to a commuter seaman is contrary to a Convention that the United States has entered into with other maritime nations. In relying on the absence of authority supporting the withholding of maintenance from commuter seamen to reach its conclusion that such seamen are therefore entitled to maintenance, Majority Op. at 11, the majority has failed to set forth the “reasons underlying the rule to which reference must be made in defining” the doctrine of maintenance as enumerated by Justice Story in Harden. Vaughan, 369 U.S. at 531, 82 S.Ct. 997. Until the Supreme Court addresses this novel question, I believe the lower federal courts must faithfully comply with the limited reach of the maintenance rule announced by the Supreme Court in The Osceola as the supreme law of the land.
Accordingly, I would reverse the double recovery awarded to Mr. Kopacz in the District Court’s judgment.
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, In 1920, Congress enacted the Jones Act. Its current text provides as follows:
A seaman injured in the course of employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law, with the right of trial by jury, against the employer. Laws of the United States regulat-
ing recovery for a personal injury to, or death of, a railway employee apply to an action under this section.
46 U.S.C. § 30104. Thus, under the Jones Act, a seaman can now recover for lost wages and compensation for medical expenses in a civil action against his or her employer.