
USCA1 Opinion

	




          May 14, 1993      UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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 & Leahy, P.C. were on brief, for appellant.          ________________________               Richard H. Pettingell with whom Debra A. Joyce and Morrison,               _____________________           ______________     _________          Mahoney & 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          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          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                                          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                                          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  & 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                                          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                                          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                                          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  & 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                                          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.          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
