Jay O. Franks, formerly a wiper on defendant's vessel the "S.S. American Veteran," seeks to recover damages for personal injuries allegedly sustained by him in a fall down one of the vessel's stairways. The issues of negligence and unseaworthiness raised by his allegations were submitted to a jury, which found against him. Judgment for defendant was accordingly entered on this verdict. The court reserved to itself the issue of maintenance and cure, following the then controlling authority of Fitzgerald v. United States Lines Co., 2 Cir., 306 F.2d 461, and allowed plaintiff's claim for a portion of the period for which he had sought it.

Plaintiff attacks the charge in this case on varied grounds, but we find none of them to be sustained. Trial judges must be allowed some leeway, and absolute clarity is hardly to be always expected. True, a single ruling can vitiate an entire charge if it is on a vital issue and is misleading. DeLima v. Trinidad Corp., 2 Cir., 302 F.2d 585. But here the areas of ambiguity which plaintiff stresses were made sufficiently clear by the charge as a whole to assure him a fair consideration of all his theories. "A charge must be interpreted as a whole, * * * not in individual parts." Sutton v. Public Service Interstate Transp. Co., 2 Cir., 157 F.2d 947, 948, cert. denied 330 U.S. 828, 67 S. Ct. 870, 91 L. Ed. 1277. Nor does plaintiff's objection to the court's charge as to the permissibility of drawing an adverse inference from the nonappearance of a doctor who had treated him have merit. See United States v. Llamas, 2 Cir., 280 F.2d 392.

We turn, therefore, to the appeal involving the issue of maintenance and cure. The recent decision of Fitzgerald v. United States Lines Co., 374 U.S. 16, 83 S. Ct. 1646, 10 L. Ed. 2d 720, overruling 2 Cir., 306 F.2d 461, supra, makes it clear that the trial court's reservation of the trial of this issue to itself was impermissible.1 But this, rather than solving our problems, leaves us with the difficult question of the appropriate relief. Looking to the basis of the decision, it is apparent that the Court reached its result because: "Only one trier of fact should be used for the trial of what is essentially one lawsuit to settle one claim split conceptually into separate parts because of historical developments." 374 U.S. at page 21, 83 S.Ct. at pages 1650, 1651, 10 L. Ed. 2d 720. In explaining the underlying considerations for its decision it stated, 374 U.S. at pages 18, 19, 83 S.Ct. at pages 1649, 10 L. Ed. 2d 720: "Requiring a seaman to split up his lawsuit, submitting part of it to a jury and part to a judge, unduly complicates and confuses a trial, creates difficulties in applying doctrines of res judicata and collateral estoppel, and can easily result in too much or too little recovery."

Obviously the Court's objection was not to the competency or fairness of the judge as a trier of fact with regard to maintenance and cure issues, but rather to the "cumbersome, confusing, and time consuming" bifurcation of the claim in accordance with the demands of tradition made senseless by time. Fitzgerald v. United States Lines Co., supra, 374 U.S. 16, 21, 83 S. Ct. 1646, 10 L. Ed. 2d 720; see 5 Moore's Federal Practice, 2d Ed. 1951, 284. Thus no criticism made by the Court is actually solved by the utilization of another jury to decide the still artificially separated maintenance and cure claim. Cf. Fitzgerald v. United States Lines Co., supra, 2 Cir., 306 F.2d 461, 475 (dissenting opinion).

Nevertheless, the ultimate paragraph of the Court's opinion requires the conclusion that it remanded only the claim dealing with maintenance and cure.2 We are unable to distinguish our situation from the one there before the Court. Here, as there, the trial court reserved for its decision the claim for maintenance and cure, and submitted to the jury the claim for negligence and unseaworthiness. In both cases the jury found against the plaintiff on the latter claim. Since the actions of the Supreme Court make plain the relief it feels such a situation warrants, we are constrained to follow its example and remand only the claim for maintenance and cure for jury trial.

The judgment for defendant on the claim of negligence and unseaworthiness is affirmed. The judgment on the claim for maintenance and cure is reversed and remanded for a trial by jury.