D. Yancey White, Corpus Christi, Tex., for appellant.

J. Michael Mahaffey, R. W. Woolsey, Corpus Christi, Tex., for appellee.

Before GODBOLD and MORGAN, Circuit Judges, and BUE,* District Judge.

CARL O. BUE, Jr., District Judge:

William O. Haughton, a boatswain aboard the S/S GULF PANTHER, sustained injuries when he slipped on the snow covered deck on the port side of the vessel while it was moored in the Port of Philadelphia, Pennsylvania, on February 17, 1967. He had just completed loading and stowing two new coils of mooring line with two other seamen and was making his way aft through the uncleared snow when he fell. The trial court, 334 F. Supp. 317, in a non-jury case awarded $34,650 in damages, but held that Haughton was fifty percent contributorily negligent, thereby reducing the damage award to $17,325. Additionally, the plaintiff was awarded the sum of $1,000 for maintenance and cure to and including April 19, 1969.

Two objections to the trial court's findings may be dismissed with brief comment. Appellant objects to the trial court's ruling that the plaintiff had achieved maximum physical recovery and thus was not entitled to maintenance and cure after April 19, 1969. Inasmuch as the trial court made this determination which cannot be shown to be clearly erroneous from a review of this record, it should be affirmed under Rule 52(a), Fed.R.Civ.P. Likewise, without clear error is the court's finding to which cross-appellant objects that the GULF PANTHER was rendered unseaworthy by the presence of snow on her deck. We are reminded that "a seaman is not absolutely entitled to a deck that is not slippery. He is absolutely entitled to a deck that is not unreasonably slippery," Colon v. Trinidad Corp., 188 F. Supp. 97, 100, (S.D.N.Y.1960). See Tate v. A/B Svenska Amerika Linein, 331 F. Supp. 854 (E.D.La.1970), aff'd per curiam, 435 F.2d 172 (5th Cir. 1970). Whether the deck became so unreasonably slippery as to render the vessel unseaworthy is a question of fact for the trial judge to resolve which ruling is not to be disturbed on appeal unless clearly erroneous.

Appellant also cites as error the trial court's finding that appellant's failure to submit to a spinal graft and fusion would prevent recovery of any damages which such operation would have alleviated. However, it is unnecessary to decide this point, inasmuch as the court below made no such finding. Rather, the court, by applying a reasonably prudent man standard, rejected the contention made at trial that failure to submit to surgery would prevent recovery of any damages which such surgery would have alleviated.

This Court feels that the evidence presented by the orthopedic specialist should be given more weight than that of the general practitioner; but even so, when you consider the age of plaintiff, who was about fifty-one (51) years of age at the time of injury, apparently fifty-four (54) at the time of trial, and that he is able to work at less strenuous jobs and does not hurt bad enough to have the surgery, the Court feels that a reasonably prudent man, under the circumstances in this case, would not go ahead with the surgery, and the Court so finds.

Moreover, it is clear from the Supplemental Memorandum and Order of the trial court filed on June 16, 1971, that no reduction in the amount of damages awarded in this case was made for this reason. The court noted that plaintiff preferred not to undergo surgery and, accordingly, awarded medical expenses without including a sum to compensate for the expense of surgery. This, too, is objected to by appellant, who argues that he should be awarded a sum to have surgery performed, even though he now contemplates no such operative procedure.

We find the award of the trial court to be consistent with the applicable rule of law and with the policy considerations sustaining such rule.

The award of a lump sum in anticipation of the continuing need of maintenance and cure for life or an indefinite period is without support in judicial decisions. Awards of small amounts to cover future maintenance and cure of a kind and for a period definitely ascertained or ascertainable have occasionally been made.

Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 530-531, 58 S. Ct. 651, 654, 82 L. Ed. 993 (1938).

It is further alleged that the trial court erred in failing to make specific findings for each element of damage as required by Noble v. Bank Line, Ltd., 431 F.2d 520 (5th Cir. 1970); Neill v. Diamond M Drilling Co., 426 F.2d 487 (5th Cir. 1970). This contention is without merit in the context of this case. The Supplemental Memorandum and Order entered on June 16, 1971, corrected the trial court's lump sum award previously made and sets out with sufficient particularity the amount of money awarded for each element of damage.

Finally, appellant urges as error that the court considered appellant's retirement benefits in mitigation of damages, thus contravening the proper application of the collateral source rule. This legal area merits some exposition.

The trial court found that the retirement benefits received by Haughton were from a fund established by virtue of a contract between Blackships and the National Maritime Union, that all of the money in the fund was contributed by the employer Blackships and that Haughton's pension was a benefit directly attributable to the employer. This collateral source income, the court said, should be considered in mitigation of damages, since it was derived from a fund directly attributable to the employer and not one to which the employee also contributed. In reaching its conclusion, the court scrutinized and distinguished Eichel v. New York Central R. R. Co., 375 U.S. 253, 84 S. Ct. 316, 11 L. Ed. 2d 307 (1963); and New York, New Haven & Hartford R. R. Co. v. Leary, 204 F.2d 461, 468 (1st Cir. 1953), cert. denied, 346 U.S. 856, 74 S. Ct. 71, 98 L. Ed. 370 (1953).

After a review of the reported cases and related policy considerations, we reverse on this issue. In considering the applicability of the collateral source rule, the basic principle to be applied is that the employer-tortfeasor is not entitled to mitigate damages by setting off compensation received by the employee from an independent source. However, it is also true that the source of the funds may be determined to be collateral or independent, even though the employer-tortfeasor supplies such funds, United States v. Price, 288 F.2d 448 (4th Cir. 1961). See also Annot., 75 A.L.R. 2d 886 (1961).

Application of the collateral source rule depends less upon the source of funds than upon the character of the benefits received, Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 534-535 (9th Cir. 1962).1 The mere fact that the employer-tortfeasor has contributed money (by payment of premiums, contributions, etc.) to the fund from which the benefits derive does not establish that such fund may not be a collateral source, Hall v. Minnesota Transfer Ry. Co., 322 F. Supp. 92, 95 (D.Minn.1971), and cases cited therein.

Hall, a FELA case, is particularly helpful in resolving the instant appeal. In that decision the "collateral source" was a medical and hospitalization policy which, as a result of a collective bargaining agreement, was instituted to cover employees' premiums that were to be paid by the employer directly to the insurer. The district court reasoned as follows, relying on United States v. Price, 288 F.2d 448, 450 (4th Cir. 1961):

The collective bargaining contract between that employee group and the defendant Railroad includes, as an economic term, a requirement that the employer pay premiums directly to the insurer, much as an employer might at the direction of his employee deduct money from wages and forward them directly to that employee's creditor or bank savings plan. This policy is, in short, a fringe benefit given in part consideration for the employee's services. It is in no sense a mere gratuity nor an arrangement by which the company has undertaken voluntarily to indemnify itself against possible liabilities to injured employees under the FELA.