of those events and condition. No physical examination was made of Libellant by Respondent or on its behalf.
'Libellant admitted, in his history prior to his employment aboard the Steamship O.M. Bernuth, that after 2 or 3 weeks at sea he experienced the return of acute tenseness and nervousness; that he did not like the sea but did like the income derived from sea duty.
'During this voyage, libellant was nervous and tense, as the vessel traversed the Pacific Ocean to Pearl Harbor and Eniwetok, Marshall Islands, during the time the United States was at war with Japan, and he was observed by the Second Assistant Engineer, his immediate superior, to be nervous and 'shaky".
The rule to be applied was stated by the Circuit Court of Appeals in Lindquist v. Dilkes, 3 Cir., 127 F.2d 21, 24, as follows: ' * * * the sailor's duty is to disclose whatever he as an ordinarily prudent person should have known is material to the risk. * * * ', the 'risk' referred to being the risk that his condition may cause him to become ill or disabled on the voyage to an extent that will make him a charge upon the ship.
So far as the findings disclose, this libellant knew that he was a nervous man and had been nervous for the past seven years and that he could expect to experience acute tenseness and nervousness after two or three weeks at sea, also, that he did not like the sea.
It seems to me that in attempting to prescribe what an ordinarily prudent person would disclose as material to the risk, one should take into account the difference between physical conditions, such as the hernia from which the libellant was suffering in Burns v. United States, D.C., 62 F.Supp. 603, and conditions known only subjectively to the sufferer, such as that commonly known as nervousness. Countless persons complain of and actually suffer from extreme nervousness, without the slightest though that the condition is or is likely to become a disabling ailment. The only thing in this case which suggests that the libellant may have had reason to believe that his condition might prove grave is that, a month and a half before he signed the articles, he had been hospitalized for five days with a diagnosis of 'anxiety state'. He also knew, however, that he had been discharged as fit for duty in three weeks, and I am not convinced that the episode was sufficient to cause him to believe that he would be likely to develop the psychoneurotic state which caused his subsequent discharge as unfit for sea duty. In the case of a man who has no tangible physical sign of disease or deformity and has experienced no impairment of function, allowance must be made for the natural disinclination to admit to one's self that one is an invalid, as well as for the will to work and earn and the desire to take one's place in the world as a normal person, which usually cause even the 'ordinarily prudent person' to discount such things as nervousness and 'anxiety state' and to consider them immaterial matters in respect of employment.
I, therefore, find myself in accord with Judge Henderson's conclusions of law and confirm the same.
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