May 14, 1993      UNITED STATES COURT OF APPEALS
                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                             

No. 92-2366

                       LEONARD J. LEBLANC,

                      Plaintiff, Appellant,

                                v.

                       B.G.T. CORPORATION,

                       Defendant, Appellee.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Marianne B. Bowler, U.S. Magistrate Judge]
                                                        

                                             

                              Before

                      Selya, Circuit Judge,
                                          

                 Friedman,* Senior Circuit Judge,
                                                

                     and Cyr, Circuit Judge.
                                           

                                             

     Joseph  G.   Abromovitz,  with  whom  John   G.  Balzer  and
                                                            
Abromovitz &amp; Leahy, P.C. were on brief, for appellant.
                        
     Richard H. Pettingell with whom Debra A. Joyce and Morrison,
                                                                 
Mahoney &amp; Miller were on brief, for appellee.
                

                                             

                           May 14, 1993

                                             

               
*Of the Federal Circuit, sitting by designation.

          SELYA,  Circuit Judge.  We must answer today a question
          SELYA,  Circuit Judge.
                               

of  first impression in this circuit and,  of late, in the courts

of  appeals:  Does a person's status as  a seaman in service of a

ship necessarily end immediately upon termination  of employment,

thereby extinguishing a right to maintenance and cure which might

otherwise be available under general maritime law?  We think not.

Because  the court below applied  a contrary rule,  we vacate the

judgment and remand for further development of the record.

I.  BACKGROUND

          Plaintiff-appellant  Leonard  J. LeBlanc  worked  as an

engineer aboard the F/V RESOLUTE, a commercial fishing boat owned

by defendant-appellee B.G.T. Corporation.1   The RESOLUTE set out

from  Fairhaven, Massachusetts  on September  25, 1991.   Shortly

after its departure, the  vessel broke down and returned  to port

for   minor  repairs.    It  then  headed  back  to  sea  with  a

rehabilitated winch  and renewed hopes, but,  it appears, against

the winds of fortune.  The crew's efforts produced few fish.

          Appellant  grew  uneasy  in  the  face of  disappointed

expectations.   Since  his  remuneration would  reflect both  the

value of  the catch and the  expense of the voyage,  he sought to

truncate  what had  become a  relatively unproductive  and costly

trip.   His  importunings  placed him  at  loggerheads  with  the

                    

     1The  litigants, who  do  not agree  on  very much,  have  a
difference of  opinion as  to nomenclature.    Although the  case
caption and appellant's filings refer to the defendant as "B.G.T.
Corporation,"  the defendant persists  in styling  itself "B.T.G.
Fisheries, Inc."  This seems to us small beer, and  we, following
both alphabetical order and the lead of the magistrate judge, use
the former appellation.

                                2

captain, and a heated confrontation ensued.  Although the parties

vigorously  debate the  exact  content of  this  war of  words   

appellant may or may not have  been cashiered then and there   it

is  undisputed that  the RESOLUTE  turned back,  arriving  in New

Bedford  during the night of  October 9.   The following morning,

the  crew dislodged the catch.   The RESOLUTE then made the five-

minute journey to her  dock in Fairhaven.   Throughout, appellant

continued to perform the ship's work.

          Once the vessel docked, appellant, assisted by a fellow

crew  member, Peter Lynch, began unloading his gear.  During this

process, or  shortly thereafter, the captain  approached and gave

appellant his "per."2   Another argument erupted.  In  the course

of  this brouhaha, the captain  either told or reminded appellant

that  he was fired  and, at any  rate, ordered him  to remove his

belongings  from  the  boat.    Ten  to  fifteen  minutes  later,

appellant slipped while descending the stairs  to the engine room

and broke his right foot.

          It remains unclear exactly what transpired in the brief

interval between  the second  imbroglio  and the  accident.   The

parties agree that appellant removed some additional gear that he

routinely  kept aboard  the  RESOLUTE between  voyages; but  they

disagree  as  to exactly  how  he accomplished  this  feat, i.e.,
                                                                

whether  he exited the  vessel during  the unloading  process or,

                    

     2A "per" is a  bonus provided to certain crew  members, like
the  engineer, whose  duties include  the performance  of special
tasks.   Appellant did not  receive his basic  remuneration   his
crewman's "share"   until a later time.

                                3

instead, stayed on board and handed his possessions over the side

to Lynch.   The  record is  similarly obscure  concerning whether

appellant succeeded  in removing all  his gear prior  to injuring

himself  or, instead, as he claimed at trial, had yet to retrieve

his boots from the engine room.

          Following  the  mishap, appellant  received maintenance

checks for a period of time.  As soon as  the employer's attorney

got wind  of  the accident  and  suggested that  appellant,  when

injured, was  no longer in the ship's  service, the flow of funds

stopped.  Appellant then sued, including in his complaint a count

for  maintenance and cure under general maritime law.  That count

was tried by mutual  consent before a  magistrate judge.  See  28
                                                             

U.S.C.   636(c)(1) (1988).  After a two-day trial, the magistrate

denied recovery for maintenance and cure.  LeBlanc appeals.3

II.  ANALYSIS

          The magistrate reasoned that appellant was not entitled

to maintenance and cure because, as a matter of  law, that remedy

cannot  attach after termination of employment.  Since this was a

bench trial in  an admiralty case,  the magistrate's findings  of

fact are reviewable only for clear error.  See, e.g.,  DiMillo v.
                                                              

Sheepscot Pilots,  Inc.,  870  F.2d  746, 749  (1st  Cir.  1989);
                       

Clauson v. Smith,  823 F.2d 660, 661  (1st Cir. 1987).   However,
                

                    

     3LeBlanc also sued  for negligence under  the Jones Act,  46
U.S.C. app.   688  (1988), and for unseaworthiness under  general
maritime law.   These claims remain in  drydock.  Notwithstanding
the case's  odd posture,  we have appellate  jurisdiction because
the magistrate's order definitively resolved the maintenance-and-
cure count.   See 28  U.S.C.   1292(a)(3)  (1988) (providing  for
                 
liberal interlocutory appeals in admiralty cases).

                                4

appellant  does not  claim that  the magistrate  misperceived the

facts, but, rather, that she applied an incorrect legal standard.

We consider  this  claim of  legal error  de novo.   See  Liberty
                                                                 

Mutual Ins. Co. v.  Commercial Union Ins. Co., 978  F.2d 750, 757
                                             

(1st Cir.  1992);  Dedham Water  Co. v.  Cumberland Farms  Dairy,
                                                                 

Inc., 972 F.2d 453, 457 (1st Cir. 1992).
    

                                A

          Before addressing the merits of the appeal, we limn the

seascape  against which it arises.  From time immemorial, the law

of  the sea has required shipowners to ensure the maintenance and

cure of seamen who fall ill or become injured while in service of

the  ship.   See, e.g.,  1B Ellen  M. Flynn  et al.,  Benedict on
                                                                 

Admiralty    41-42 (6th ed. 1993) (finding the requirement extant
         

in  the Laws of  Oleron and other ancient  admiralty codes).  The

duty to provide maintenance and cure is today a firmly entrenched

accouterment  of  general maritime  law.   See, e.g.,  Aguilar v.
                                                              

Standard Oil Co., 318 U.S. 724, 726 (1943); The Osceola, 189 U.S.
                                                       

158, 175 (1903).

          The term "maintenance and cure" refers to the provision

of, or payment for,  food and lodging ("maintenance") as  well as

any necessary health-care expenses  ("cure") incurred during  the

period of recovery from an injury or malady.  See, e.g., Aguilar,
                                                                

318 U.S. at 730; Calmar Steamship Corp. v. Taylor, 303 U.S.  525,
                                                 

528  (1938).   As the  label implies,  the right  is  curative in

nature  and  is thus  to  be distinguished  from  other admiralty

rights, such as the right  to recover lost wages or the  right to

                                5

recover  for a  shipowner's negligence,  which are  compensatory.

See Aguilar,  318 U.S. at 730.  The right to maintenance and cure
           

attaches largely  without regard to  fault; a seaman  may forfeit

his entitlement only by engaging in gross misconduct.  See, e.g.,
                                                                

Calmar, 303  U.S. at 527-29.   And,  moreover, once the  right to
      

maintenance   and  cure  has  attached,  the  injured  employee's

entitlement continues, even after  termination of service,  until

he is  "so far cured as possible."  Farrell v. United States, 336
                                                            

U.S. 511, 518 (1949); accord Clauson, 823 F.2d at 661 n.1.
                                    

          Developed though the doctrine  may be in some respects,

its  scope  has never  been precisely  delineated.   While  it is

common ground that the right is available only to a "seaman"  who

is  "in service  of the ship"  at the  time an  injury or illness

eventuates,  see Aguilar, 318 U.S.  at 732; Osceola,  189 U.S. at
                                                   

175, the  meaning of these imbricated terms has evolved piecemeal

over many  decades and  attempts at further  refinement typically

have been imbued  with the factual residuum of  particular cases.

See, e.g., McDermott  Int'l, Inc.  v. Wilander, 111  S. Ct.  807,
                                              

814-16, 818 (1991);  Senko v. LaCrosse  Dredging Corp., 352  U.S.
                                                      

370, 374 (1957).4  Thus, there are lingering questions as  to the

exact  manner  in  which  the  right  to  maintenance   and  cure

                    

     4Although the cited cases involve  the Jones Act, 46  U.S.C.
app.   688,  general maritime  law and the  jurisprudence of  the
Jones  Act have largely evolved in tandem.   See Wilander, 111 S.
                                                         
Ct. at 810-11.  Moreover, those falling within the prophylaxis of
the Jones  Act  are also  among  the  class of  persons  who  are
afforded  the primary  protections  of general  maritime law,  of
which maintenance  and cure is a prime exemplar.  See 1B Flynn et
                                                     
al., Benedict on Admiralty, supra,   44.
                                 

                                6

interfaces with the employment relationship.  It is, for example,

still  unsettled whether  the right  to maintenance  and cure  is

coterminous  with,  and  a  contractual  attribute  of,  employed

status,  or,  instead, whether  the  right retains  a  measure of

independent force.  See 2  Martin J. Norris, The Law of  Seamen  
                                                               

26:10 (4th ed. 1985) (collecting cases).

          The instant case requires us to explore these uncharted

waters,  for  B.G.T.  contends,  and  the  magistrate  apparently

believed,  that  termination of  employment,  in  and of  itself,

necessarily and always prevents  subsequent attachment of a right

to  maintenance and cure.  We reject this thesis, concluding that

the right  to  maintenance  and  cure stems  from  the  employer-

employee relationship but is  not in all circumstances completely

coextensive with it.  As we explain below,  a number of different

considerations undergird this conclusion.

                                B

          One  pylon   upon  which   our  holding  rests   is  an

appreciation of  the historical purpose of  maintenance and cure.

A  common thread running through the reported cases, some of them

centuries old, is that maintenance and cure must always be viewed

as an alleviatory remedy.   Seamen should receive it  because the

nature  of their  employment necessitates  their exposure  to the

peculiar hazards of seafaring life while at the same time leaving

them  utterly dependent  on the  ship, which  serves as  the very

framework for their existence.   See, e.g., Farrell, 336  U.S. at
                                                   

514-16; Aguilar, 318 U.S. at 731-34; Harden v. Gordon, 11 F. Cas.
                                                     

                                7

480,  483 (C.C.D.  Me. 1823)  (No. 6,047)  (Story, J.);  see also
                                                                 

Wilander, 111 S.  Ct. at  817 (stating that  a seaman's  remedies
        

grow out of  "his peculiar relationship to the vessel,  and . . .

the  special  hazards"  of  seafaring)  (citation   and  internal

quotation marks omitted).  Because it was feared that without the

right  to  maintenance  and  cure  as  an  inducement  few  might

willingly  devote themselves  to a  way of  life that  would both

render them  at risk and leave them friendless in the face of the

assumed risk, see Calmar, 303 U.S. at 528; see also Macedo v. F/V
                                                                 

Paul  &amp; Michelle,  868  F.2d  519,  521  (1st  Cir.  1989)  ("The
                

obligation for maintenance and cure arose, historically, from the

irresponsible  behavior of  shipowners  who set  disabled  seamen

ashore at foreign ports to shift for themselves."),  the benefits

of  maintenance  and cure  have not  been  limited to  victims of

predictable shipboard injuries.   For instance, in ruling that  a

seaman injured while on shore leave could receive maintenance and

cure, Justice Rutledge wrote:

               The voyage creates not only the need for
          relaxation ashore, but the necessity  that it
          be satisfied in distant and unfamiliar ports.
          If, in  those surroundings, the seaman  . . .
          incurs injury, it  is because of  the voyage,
          the  shipowner's business.  That business has
          separated  him  from   his  usual  places  of
          association.  . . .  In sum, it is the ship's
          business  which  subjects the  seaman  to the
          risks  attending  hours   of  relaxation   in
          strange surroundings.  Accordingly, it is but
          reasonable  that the business extend the same
          protections  against injury  from them  as it
          gives for other risks of the employment.

Aguilar,  318 U.S.  at  734.   This  historical perspective     a
       

seaman's  lifestyle  makes  him   dependent  on  the  ship  while

                                8

simultaneously ensuring  his exposure to the  variegated risks of

seafaring, thus warranting an alleviatory remedy   is what stands

behind, and gives meaning  to, the black letter rule  that seamen

who are,  broadly speaking,  in the  ship's service when  injured

merit maintenance and cure.

                                C

          A second pylon upon  which our holding rests  goes hand

in glove  with this historical perspective.   Linguistically, the

entitlement  to   maintenance  and  cure  must   not  be  defined

grudgingly.   While the "seaman in service" language has at times

appeared  to acquire  a restrictive  gloss, we  believe that  any

meaningful  interpretation of  the phrase  must remain  moored to

maintenance  and   cure's   core   purpose:      palliating   the

disadvantages of seafaring life.  Thus, the nature of the right

          require[s] that  it be not  narrowly confined
          or   whittled   down   by   restrictive   and
          artificial  distinctions defeating  its broad
          and beneficial purposes.   If leeway is to be
          given   in   either   direction,    all   the
          considerations which brought the [right] into
          being  dictate it should  be in  the sailor's
          behalf.

Aguilar, 318 U.S. at 735.
       

          It  is for  this  reason that  a certain  expansiveness

rightfully attends determinations of whether a person is a seaman

in service of  the ship.  To cite one  example, we recently ruled

that  a sailor  injured  at  home on  a  Sunday was  entitled  to

maintenance and cure although his ship  was not due to sail until

the  following Tuesday,  observing that  "the captain  could have

changed  his  mind  and  decided  to  sail  Monday  and  required

                                9

plaintiff to  do the  preparatory  boat work  Sunday, holiday  or

not."  Macedo, 868  F.2d at 520-21.   As this illustration  makes
             

clear, if a person  is enduring circumstances which, in  a rather

general sense, further the ship's purposes, he may well be deemed

in the ship's service.  Accord  Farrell, 336 U.S. at 516 (holding
                                       

that  a seaman  is  in the  ship's service  when he  is generally

answerable to the call of duty).

          The Supreme Court's most  recent visit to these straits

exemplifies  the  same strain  of  interpretive  generosity in  a

slightly  different  context.   In  Wilander,  an employee  whose
                                            

duties  consisted  of supervising  the  painting  of a  sea-bound

drilling  platform was  injured.   He  sued,  seeking a  seaman's

remedies.  The Court,  refusing to impose a requirement  that, to

be  a  seaman,  one  must aid  in  the  navigation  of  a vessel,

concluded instead that "[t]he key to seaman status is employment-

related connection to a vessel."  Wilander, 111 S. Ct. at 817.5
                                          

          In sum, the motivational impetus behind maintenance and

cure dictates availability of  the anodyne whenever a plaintiff's

                    

     5It  can, of course, be  argued that cases  dealing with the
question of who qualifies  as a seaman, see, e.g.,  Wilander, 111
                                                            
S.  Ct. at  807,  are distinguishable.    However, the  two  most
frequently asked questions in  seamen's cases   Who is  a seaman?
Was the seaman  in service of  the ship?    overlap.  The  former
question  usually reduces  to  asking:   How  connected with  the
ship's function must  a person's duties be in  order for the mine
run of  rights under maritime law to attach?  The latter question
usually  reduces to  asking:    How  connected  with  the  ship's
function must  the injury-inducing circumstances be  in order for
such  rights to attach?   In our estimation,  the answers to both
questions  shed light  upon  the quandary  we face  here, namely,
whether  it is necessarily true  that a seaman  in service of the
vessel instantly loses that status upon discharge.

                                10

injury  or   illness  occurs  amidst  circumstances   endured  in

furtherance of, and as  a result of, an employment, the duties of

which  help accomplish  the  mission of  a vessel  in navigation.

This formulation makes clear that, while the right to maintenance

and cure stems from a person's  employment, there is no reason to

assume that  the right and  the employment are  conterminous with

each other.   Indeed, the  decided cases  indicate the  contrary.

See  Aguilar, 318  U.S.  at 730  (explaining  that the  right  to
            

maintenance  and  cure  arises  "as an  incident  of  the  marine

employer-employee  relationship");  Cortes  v. Baltimore  Insular
                                                                 

Line, Inc., 287 U.S.  367, 371 (1932) (explaining that  the right
          

to maintenance and cure  "has its source  in a relation which  is

contractual in origin").

                                D

          A  third pylon  on which  our holding rests  reflects a

policy  judgment.     We   recognize  that  the   possibility  of

maintenance  and cure attaching  will end in  most instances when

the  employment  relationship  expires.     But,  this  need  not

invariably  be the  case.  We  are of  the opinion  that taking a

mechanical  approach, as  appellee urges,  would as  a matter  of

policy  be incompatible  with  the Court's  repeated eschewal  of

sharp-edged rules limiting seamen's rights.  See, e.g., Wilander,
                                                                

111 S.  Ct. at 817-18; Desper v. Starved Rock Ferry Co., 342 U.S.
                                                       

187, 190 (1952).

          What  is more, a strict cut-off point of the sort urged

by  appellee  would sometimes  run  at  cross  purposes with  the

                                11

historical   antecedents   and   definitional    imperatives   of

maintenance and cure.  See supra Parts II(B), (C).  We think this
                                

is so because the life of a seaman requires that he be drawn into

the  separate world of the ship and subjected to the unique risks

present therein.  If he is  terminated while still in that realm,

the separation  and its risks    which are,  after all,  the twin

rationales for providing maintenance and cure    do not instantly

evaporate.   Nor,  therefore, does  the seaman's  persona change,

like Cinderella  at the stroke of twelve,  from a servitor of the

ship  to a  landlubbing interloper.   Rather, the  title "seaman"

must remain attached  at least until the  individual has finished

his  shipboard tasks  (unless duly  relieved of  them) and  had a

reasonable chance  to  exit  from the  maritime  realm,  or,  put

another way, for so long as the twin  rationales remain in force.

Just as the Court deemed Aguilar  a seaman in service of the ship

because the risks inherent in his  situation were necessitated by

the ship's  business, see Aguilar,  318 U.S. at  734, so,  too, a
                                 

person  cashiered  while  on  board a  vessel  remains  a  seaman

furthering its purposes at least until he is afforded  reasonable

time and opportunity for disembarkation.

                                E

          The  last pylon on which our holding rests is hewn from

the  caselaw.   There is  a venerable  court of  appeals decision

directly on  point in  which the  plaintiff,  after being  fired,

injured  himself while leaving the ship.  The Fourth Circuit held

that

                                12

          the  obligation  of   the  ship  to   furnish
          maintenance  and  cure attaches  to accidents
          which  happen in  the brief  interval between
          the time  a seaman  is paid off  and formally
          discharged and the  subsequent time at which,
          in   ordinary   course,   he  actually   gets
          physically away from  her.  He went on her as
          a seaman, and for the  purpose in hand he did
          not cease to be one  until he was safely  off
          her.

The Michael Tracy, 295 F.  680, 681 (4th Cir. 1924).   We believe
                 

that  this statement  of  the law  continues  to shine  brightly,

undimmed by the passage of time.6

          We  discern   further   decisional  support   for   our

conclusion in  the closely related area  of workers' compensation

law.  Although statutes  differ from state to state,  the general

rule  stipulates   that  "coverage   is  not   automatically  and

instantaneously  terminated  by the  firing  or  quitting of  the

employee" but extends for a reasonable period thereafter so  that

the  employee  may  "wind[]  up   his  affairs  and  leave[]  the

premises."  1A Arthur Larson, The Law of Workmen's Compensation  
                                                               

26.10  (1993) (collecting  cases);  see also  id.     26:30-26:40
                                                 

(indicating that  a "reasonable period" incident  to severance of

employment encompasses  time to pick  up a paycheck  and retrieve

                    

     6B.G.T. suggests  that Fisher v. Cleveland  Cliffs Iron Co.,
                                                                
1975 A.M.C. 1570  (W.D. Pa. 1975), a  case in which the  district
court abjured the rule of Tracy, is the beacon by which we should
                               
steer.   We  disagree.   First, Fisher's  reasoning depends  upon
                                      
statements  (dicta  in  decisions  and  passages  in  commentary)
treating  with unrelated questions.  See id. at 1577-78.  Second,
                                            
none of this  rumination actually rules out  recovery by recently
fired employees.  See id.  On the whole, Fisher is unsupported by
                                               
the authorities upon which it purports to rely.  Hence,  we, like
the commentators, see,  e.g., 2 Norris, supra,    26.31, consider
                                             
Tracy more persuasive.
     

                                13

personal effects);  Elmer H. Blair, Reference  Guide to Workmen's
                                                                 

Compensation     5:03 (1974  &amp; Supp.  1993)  ("When a  workman is
            

discharged,  the right to compensation as an employee is not lost

until he has  had a reasonable  time to collect  his pay and  his

personal belongings, and leave the premises of his employer.").

          We think  the  presence  of  this  "reasonable  period"

standard  in  workers'  compensation   law  takes  on  a  special

significance  for  our  purposes   because  an  injured  seaman's

entitlement to maintenance  and cure is widely  thought to impose

"a  broader  liability  than  that imposed  by  modern  workmen's

compensation statutes."   Aguilar, 318  U.S. at 732;  see also  2
                                                              

Norris,  supra,   26:40 ("Maintenance and  cure under the general
              

maritime law is far more liberal in its application than are most

of the present workmen's compensation acts.").

                                F

          We  need  go  no further.    The  four  pylons we  have

described  form  an  integrated  foundation.   Building  on  that

foundation, we hold that  the right to maintenance and  cure made

available by general  maritime law to  seamen injured or  falling

ill while in service of the ship may attach after  termination of

employment so long as the triggering event takes place within the

period of time  reasonably needed for the accomplishment of tasks

in  general furtherance of  winding up the  seaman's employment  

the  prototypical  examples   being  removing  one's  belongings,

quitting the ship,  or implementing  direct orders  given at  the

time of discharge.

                                14

          In  the case  at hand, the  magistrate judge  applied a

different, incorrect legal standard.  Moreover, the record is not

sufficiently developed to allow us to resolve the  controversy by

regrouping the available  findings of fact along the proper legal

matrix.7   The  case must,  therefore,  be remanded  for  further

consideration in  light of  this opinion,  and  for such  further

proceedings as may be required.  Although it is apparent that the

entire case need not be retried, we in no way intend to limit the

scope of the magistrate judge's inquiry on remand, but leave that

to  her informed discretion.  In the  same vein, we see no reason

for the interposition of a new trier.

Vacated and remanded.  Costs to appellant.
                                         

                    

     7Without  attempting  to  be  all-inclusive,  we   cite  two
examples of potentially important  uncertainties.  (1) The record
is inscrutable with  regard to whether LeBlanc,  after the second
imbroglio,  alighted from  the  RESOLUTE, and  then returned,  or
whether he  remained on board.   (2) There is some  dubiety as to
whether LeBlanc, at the  time of his injury,  was carrying out  a
direct order  to remove his gear  from the ship.   The magistrate
made  no clear finding  on either point, nor  did she address the
question of  when LeBlanc's injury  occurred with respect  to the
reasonable  period  of time  needed  to  wind  up his  legitimate
business on board the RESOLUTE.

                                15
