MEDICAL CARE FOR SELF-EMPLOYED SEAMEN THURSDAY, OCTOBER 24, 1963 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON PUBLIC HEALTH AND SAFETY OF THE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE Washington D.C. The subcommittee met at 10 a.m., pursuant to call, in room 1334, Longworth Building, Hon. Kenneth A. Roberts (chairman of the subcommittee) presiding. Mr. ROBERTS. The subcommittee will please be in order. We are meeting today to hear from the Department of Health, Education, and Welfare. With reference to certain language in Senate bill 978 and related bills with reference to providing medical care for certain persons engaged onboard a vessel in the care, preservation, or navigation of such vessel. At the last meeting we had several of our colleagues testify on these bills and the representative, I believe from the Department of the Interior, testified that under the language of S. 978 the benefits sought to be derived under these bills could be extended to persons engaged in the care, preservation, or navigation of such vessels as ferries, tugboats, houseboats I believe, and some other charter boats, and this interpretation gives this subcommittee a great deal of trouble. It is our understanding that prior to the 1954 administrative ruling which eliminated owner-operators, these benefits were not extended to these classes, but that probably one thing that brought about that ruling, I believe, was the fact that the wife of a houseboat owner sought these benefits at a Public Health Service hospital. Therefore, this morning we had set aside for hearing the representatives of the Department of Health, Education, and Welfare, and it is my pleasure to welcome Mr. Sydney Edelman, assistant chief, Public Health Division, Office of the General Counsel. We are glad to have you, Mr. Edelman. We would be happy to have your comments. STATEMENT OF SIDNEY EDELMAN, ASSISTANT CHIEF, PUBLIC HEALTH DIVISION; ACCOMPANIED BY THEODORE ELLENBOGEN, DEPUTY CHIEF, LEGISLATION DIVISION, OFFICE OF GENERAL COUNSEL, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE Mr. EDELMAN. Thank you, Mr. Chairman. As the chairman just said, the question of the employment status of persons living on houseboats came up prior to 1954. If the act is amended as proposed by S. 978, it will include individuals who are self-employed aboard documented vessels of the United States as sea men if they perform the customary activities of a seaman in the care, preservation, or navigation of the vessel. Mr. ROBERTS. You agree then with the opinion of the witness for the Department of the Interior? Mr. EDELMAN. Yes, sir. I read that in the record and I agree with it. Mr. ROBERTS. Let me ask this further question: Do you think it would take an amendment of an exclusive nature to cure this situation and to limit it to fishing vessels engaged in commercial fishing, that is, exclude charter boats, exclude ferries, excluding tugboats, possibly by naming those types of vessels that the committee would desire to exclude? Would it be your recommendation that language in the form of an amendment would be the proper way to cure it, or do you think we could cure it by spelling out the legislative intent in the form of a report? Mr. EDELMAN. Mr. Chairman, I think the question of spelling out legislative intent in a report is always a hazardous operation. The language of the statute is so broad that the legislative intention as expressed in a report may not be sufficient to furnish a legal basis for restriction. I think if the committee intends to restrict the remedial effect of this amendment to a category of seamen it should specify in the bill exactly what kind of restriction it intends to be applied. Mr. ROBERTS. May I suggest then that the Department submit language to us that would acomplish the exclusion of the group that you say would be excluded in the broad language of the Senate bill? Mr. EDELMAN. Do I understand it is the intention of the committee to restrict the effect of this amendment to owner-operators of commercial fishing vessels? Mr. ROBERTS. That is correct. Mr. EDELMAN. We will be glad to prepare such an amendment for the committee. Mr. ROBERTS. Thank you, Mr. Edelman. Mr. Schenck? Mr. SCHENCK. My only question, Mr. Chairman, is that it would be confined then entirely to fishermen on fishing vessels whose purpose is to sail and work in the collection of fish for sale on the open market and not a pleasure boat or pleasure vessel? Mr. EDELMAN. If this is the intention of the committee, I think language can be drafted to accomplish that purpose, though I would like to offer my personal views. It would be very difficult to draft a definition which will include only vessels actually engaged, because vessels do tie up for repairs and they do have crews aboard, even though they are not actually engaged in fishing operations, but I think the language can be drafted to accomplish this purpose. Mr. SCHENCK. Well, the purpose, as I understand the chairman's idea, is that it be confined to only those vessels which are engaged in commercial fishing, not just when they are engaged, but which are so engaged full time except when being repaired as their reason of operation, and not any commercial type charter boat service which takes people out for pleasure fishing. Can that be done! Mr. EDELMAN. I think we can put the words together to accomplish that, Mr. Schenck. Mr. ROBERTS. Mr. Nelson? Mr. NELSON. No questions. Thank you. Mr. ROBERTS. One other question, Mr. Edelman. I ask this for Mr. Rogers of Florida, who is really the one who originated this line of inquiry. Have there been any requests for reconsideration of the 1954 opinion? Mr. EDELMAN. Yes, Mr. Chairman, there was a request and I would like to just briefly go back and give the chronology of this. Two opinions were written in 1951 in the month of October, one dealing with the owner of a vessel in Florida who was listed as the master. The vessel had been tied up in port for 5 years. The woman worked in town at Food Fair and various grocery stores and said she was engaged every night and weekends in the preservation of the vessel in order to get it ready for navigation, but because of the lack of time she was falling behind and the vessel was falling into a worse and worse state of preservation, and it looked as though she would never be able to get it out to navigate it. The other one involved a houseboat in Washington where the wife of the owner of the boat came in for medical care. In both those cases we held in the light of the legislative history that Congress intended that the medical services be available only to seamen who occupied the status of employees. In 1953 we were asked to reevaluate that opinion by the Public Health Service to determine whether there was any basis for changing our views. At that time, on December 29, 1953, we advised the Service in writing that we had reexamined the previous opinions and saw no reason to change our views. We suggested that if there was any confusion it might be desirable to amend the regulations in order to specify that individuals who were not actually employed as employees were not eligible. This was done by a notice of proposed rulemaking published in the Federal Register on March 24, 1954. Thirty days notice was given. No comments or protests of any kind were received. The regulation was then promulgated and went into effect 30 days after publication on May 26, 1954, so the interpretation of the provision is now embodied in regulations. I have a copy which I will submit. It is section 32.1(d) of the Public Health Service Regulations, as amended, which contains the definition of "seaman." This now has the force and effect of law. It has never been challenged in court. No one has ever brought a suit contending that he had been denied care illegally because the regulation was invalid or beyond the authority of the Surgeon General and the Secretary to promulgate. As far as the Office of General Counsel is concerned, we have from time to time informally been asked whether our views have changed or are subject to change, and each time we have reviewed the original opinions and have indicated that we saw no basis for a change in our views. Mr. ROBERTS. That answers the question that I think Mr. Rogers of Florida would like to have in the record. Also, without objection, the regulation which you submitted will be included in the record. Mr. EDELMAN. I have copies of the opinions referred to, Mr. Chairman, if you would like them to be submitted for the record. Mr. ROBERTS. I would like to have those opinions too, please. (The information referred to follows:) Office memorandum-U.S. Government. FEDERAL SECURITY AGENCY, OFFICE OF THE ADMINISTRATOR, To: Mr. Robert T. Hollinger, Chief, Regulations and Procedures Section, Division of Administrative Management, BMS. From: Office of the General Counsel. Subject: Medical services-Eligibility for medical care of owner of vesselMrs. Hermia Sobraski. Your memorandum of August 14 on the above case forwards a copy of a memorandum from the Medical Officer in Charge of the Outpatient Clinic, Miami, Florida, concerning the eligibility of Mrs. Sobraski for treatment as a statutory beneficiary of the Service and requests our views on the subject. It appears that Mrs. Sobraski is the master and owner of the "Virginia Dare." a vessel documented under the laws of the United States. The vessel, however, has been tied up for the past five years and has been used as Mrs. Sobraski's home while she has been employed ashore. Apparently she returns to the vessel each evening and, according to her statement, engages in the preservation and care of the vessel for the balance of the evening. The questions presented are whether, under these facts, Mrs. Sobraski is a "seaman" and whether the vessel is "temporarily laid up in port" within the meaning of Part B, Chapter I, section 2.22 of the Division of Hospitals Operation Manual. It is unnecessary to answer these specific questions as we have concluded that Mrs. Sobraski as owner of the vessel is not "employed on board" such vessel and is therefore not entitled to benefits under the Public Health Service Act. Section 2(h) of the Act defines the term "seamen" as including "any person employed on board in the care, preservation or navigation of any vessel, or in the service on board of those engaged in such care, preservation or navigation." (Emphasis added.) This definition has been retained without substantial change since its original enactment in 1875 (18 Stat. 485), apparently in response to recommendations by the Supervising Surgeon.1 Prior to 1875 the term "seamen" had not been defined in the statute. Under section 322(a)(1) of the Act, applicable to Mrs. Sobraski's claim, medical care is authorized for seamen "employed on vessels of the United States . . ." [Emphasis added.] In order to be eligible for medical benefits in accordance with the provisions of the statute, therefore, an individual must not only be a "seaman," but must also be "employed" aboard a vessel as such. The term "employed" as used in the statutory language quoted above may not, in the light of legislative history, reasonably be interpreted as equivalent to "occupied" or "engaged in" but must be taken to refer to services rendered in an employment relationship under a contract of hire, express or implied.2 The history of the provisions for the medical care of seamen discloses that. apart from any question as to the nature of the duties which bring an individual within the class of persons considered as seamen, the statute was intended to benefit those merchant seaman who received an economic return for their services in the form of wages (not as a profit on an investment of capital). and thus fell into a generic classification of "employees." One of the purposes of the early statutes here discussed was to provide means for the relief of seamen "by withdrawing a small fund from time to time from their maritime earnings." Seamen were traditionally considered a reckless and "improvident class of men" who would not make provision for their future needs unless compelled to do so." 1 A definition was recommended to assist in the collection of hospital dues and the determination of eligibility for care. United States Marine Hospital Service, Annual Reports 1873, p. 14; 1874, p. 7. In view of the requirement of section 322 (a) (1) quoted above, it is immaterial in this case whether the definition of the term "seaman" in section 2 (h) is to be considered as an open or restrictive definition. See our memorandum of August 5, 1944 on the eligibility of lunchroom employees of ferry concessions. 3 Reed v. Canfield, 20 Fed. Cas. 426 (1832). The limitation of benefits to individuals whose maritime earnings were derived from their services rendered as employees is accordingly understandable “in the light of the mischief to be corrected and the end to be attained." The first Federal legislation providing medical care for seamen (1 Stat. 605, Act of 1798) entitled "An Act for the relief of sick and disabled seamen" required the "master or owner of every ship or vessel of the United States" to pay to the collector 20 cents per month for every seaman “employed on board such vessel," which sum he was authorized "to retain out of the wages of such seaman." [Emphasis added.] That the seaman's status as an empolyee was one of the elements on which liability for the tax depended is made even clearer by the Act of June 29, 1870 (16 Stat. 169). That Act raised the hospital dues to 40 cents per month for every seaman "employed on sail vessel" and authorized the master or owner to "collect and retain [such sum] from the wages of said employees." [Emphasis added.] Significantly, section 5 of the Act of 1870, the forerunner of section 322 (a) of the present act, provided for the disbursement of the fund so collected for the "care and relief of sick and disabled seamen employed in . . . vessels of the United States." [Emphasis added.] At the time the definition of "seaman," referred to earlier, was adopted by the Act of 1875, the funds for the maintenance of what were then known as the Marine Hospitals were still derived from taxes laid upon the wages of seamen employed on vessels of the United States. That Act, which again authorized the withholding of hospital dues from "each seaman's wages," also provided a penalty for the failure to keep accurate records of seamen "employed" on board vessels subject to the payment of hospital dues. The statutes have thus uniformly recognized and required as an essential element for liability for the hospital tax and for eligibility for benefits that the seamen here considered be "employed" on vessels or, as stated in the Act of 1870, supra, be "employees." By the Act of June 26, 1884 (23 Stat. 57) all provisions for the assessment and collection of a hospital tax for seamen were repealed and it was provided that the expense of maintaining a Marine Hospital Service was thereafter to be borne by the United States out of the receipts of duties on tonnage. The statute, however, both in its definition of seamen (now section 2 (h)) and in its conditions of eligibility for care, (now section 322 (a)(1)) continue to require that the seamen be "employed" on vessels of the United States. 5 The current regulations of the Public Health Service, in accordance with sections 2(h) and 322(a)(1) of the Public Health Service Act, make plain that the economic status of a seaman as an employee is a necessary element for his classification as a person entitled to benefits under the Public Health Service Act. Specifically, section 32.14 requires, among other things, evidence that the applicant "has been employed on a * * * vessel of the United States." Again, section 32.15 refers to the eligibility of seamen taken sick or injured ashore "while actually employed on a vessel." Finally, this economic dependence of the seaman on the business of others is underscored by section 32.17 which preserves the eligibility of a seaman where more than 90 days have elapsed since his last service if. among other things, such lapse of time was "due to closure of navigation or economic conditions resulting in decreased shipping with consequent lack of opportunity to ship." "Lack of opportunity to ship" in this context is meaningful only to an employee looking for employment and not to an employer who performs services on his own vessel. In the light of this discussion, the decisive question in this case is not the condition of the vessel or the nature of the work done by Mrs. Sobraski, but whether she is "employed” aboard the vessel owned by her. It seems to us that where an individual is the sole owner of a vessel, as a matter of law he cannot be said to be "employed" aboard such vessel as a seaman, regardless of whether he actually performs the services traditionally rendered by seamen. The employment relationship, including employment as a seaman, is essentially a contractual one, either express or implied, and an individual cannot contract with himself so as to make himself his own employee. Accordingly, since Mrs. Sobraski is the owner of the Virginia Dare, she is not "employed" aboard such vessel within the meaning of the Public Health Service Act, and she is not therefore entitled to benefits under that Act. SIDNEY EDELMAN. Warner v. Goltra, 293 U.S. 155; N.L.R.B. v. Hearst Publications, 322 U.S. 111; U.S. v. Silk, 331 U.S. 704. Cf. Bartels v. Birmingham, 332 U.S. 126. 130, United States v. Silk, 331 U.S. 704, 712. * 48 Am. Jur. Shipping 140; 56 C.J. 931; the Joseph B. Thomas, 148 F 762. |