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BURNS v. UNITED STATES

September 28, 1945

BURNS
v.
UNITED STATES et al.



The opinion of the court was delivered by: KALODNER

This action was instituted by libel in admiralty seeking maintenance and cure. Trial was by the Court without a jury. The facts subsequently stated were agreed to by stipulation.

A single question is presented:

 Should maintenance and cure be allowed to a seaman who, at the time of his employment, failed to disclose a prior existing hernia, and whose incapacitation during the voyage was due solely to the fact that he 'forgot to bring his truss along'?

 In accordance with the stipulation and the exhibits annexed thereto, I make the following findings of fact:

 1. The libellant, an experienced seaman, joined the S. S. Philip Livingston on April 15, 1943 at Philadelphia as a utility messman at $ 87.50 per month plus maintenance and war bonus.

 2. The said libellant was paid off from the said vessel June 25, 1943 at Freemantle, Australia, for the purpose of securing medical or surgical care.

 3. The S. S. Philip Livingston at all times herein mentioned was owned by the United States of America and was operated by the American-Hawaiian Steamship Company under a general agency agreement with the War Shipping Administration.

 4. At the time of joining said vessel, libellant was suffering from a hernia which he had contracted while employed at the Philadelphia Navy Yard on January 30, 1943, as a shipfitter's helper. Claim for compensation under Section 39 of the Compensation Act of September 7, 1916, 5 U.S.C.A. § 789, was filed by the libellant on January 17, 1944 (some six months after the termination of his employment as a seaman) based on his injury while employed at the Philadelphia Navy Yard.

 5. The libellant, upon joining the said vessel, forgot to take along a truss which he wore for his rupture during the voyage.

 6. During the course of said voyage, libellant's hernia began to trouble him.

 8. The libellant performed his duties as a messman in a satisfactory manner from the time of joining the vessel until he was paid off on June 25, 1943.

 9. Upon arrival of the said vessel in Fremantle, Australia, libellant was examined by Dr. F. H. Uther Baker, employed by R. G. Lynn, Ltd., agents for American-Hawaiian Steamship Company.

 10. Libellant entered St. Helen's Hospital at Fremantle, Australia, on June 25, 1943 and was operated upon for his hernia on July 2, 1943. He left the said hospital July 24, 1943, and was thereafter treated as an outpatient at the said hospital until August 3, 1943, when he was discharged; all of which ...


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