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GRAY v. BERNUTH

March 3, 1950

GRAY
v.
BERNUTH, LEMBCKE CO., Inc.



The opinion of the court was delivered by: HENDERSON

Court's Findings of Fact.

1. On May 9, 1945, libellant was 27 years of age and a seaman in the United States Merchant Marine.

 2. On May 9, 1945, the respondent, a New York corporation, possessed, operated and controlled the S.S. 'Q. M. Bernuth' in foreign commerce.

 3. On March 27, 1945, libellant was discharged from the United States Marine Hospital, Baltimore, Maryland, where he had been hospitalized for five days with a diagnosis of 'anxiety state', as fit for duty in three weeks. Libellant gave a history of being nervous for the past 7 years.

 4. On May 9, 1945, Libellant entered the employ of Respondent as a member of the crew of the Steamship 'O. M. Bernuth', in the capacity of Fireman/Water Tender, at the base rate of pay of $ 112.50 per month, plus overtime and found. Libellant, at the time he signed the contract of employment, informed no one of his nervous condition nor of his being acutely anxious and nervously disturbed on certain occasions prior to that date, although he has admitted full knowledge of those events and condition. No physical examination was made of Libellant by Respondent or on its behalf.

 (a) 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.

 5. During this voyage, libellant was nervous and tense, as the vessel traversed the Pacific Ocean to Pearl Harbor and Enwetok, 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'.

 7. In accordance with these instructions, libellant stood by the fire without relief for about 45 minutes to an hour, when his head and chest began to throb; he became nauseous; his body trembled; he became short of breath and began to feel faint. At that point, the Chief Engineer came in and ordered him to go over under the ventilator to revive himself.

 (a) Libellant did not collapse or become unconscious, and after only five minutes rest returned to duty and completed his watch of approximately 3 hours in duration.

 (b) After this incident, Libellant performed his duties without complaint for 11 days, working 8 hours each day in the fireroom of the vessel.

 8. The vessel docked at Balboa, Canal Zone on September 8, 1945, and the following morning, libellant applied for treatment at the United States Public Health Service where his condition was diagnosed as psychoneurosis, combat-Type, severe, and he was declared permanently unfit for sea duty. Because of this condition, he was compelled to surrender his seaman's papers to the United States Coast Guard, and he was ordered to leave the vessel.

 9. Libellant was paid wages up to September 11, 1945, the date when he was removed from the vessel.

 10. Libellant was sent to the United States Marine Hospital at Ancon, Canal Zone, where he remained from September 12 to October 9, 1945. A diagnosis was made of anxiety state, chronic, severe, and he was discharged as 'improved, ...


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