Libellant assigns four reasons for granting the motion, the substance of which is as follows:
(1) Since the hearing, libellant has discovered new evidence in the form of a photograph of the steamer 'Allegheny' taken within a short time of the accident, which photograph indicates the absence of a handrail on the port towing knee.
(2) Libellant is trying to locate other crew members who did not testify and believes and expects that they will be available to testify on the subject of the non-existence of a handrail on the port towing knee at the time of the accident.
(3) Libellant requested the right of argument before findings were made, which the court agreed to.
(4) Libellant requests opportunity to submit additional testimony on the claim for maintenance and cure as to the time of disability, to prevent serious injustice to libellant.
The photograph which libellant discovered after the trial is merely an enlargement of respondent's exhibit 'A', which was admitted in evidence at the trial and which disclosed the absence of a handrail on the port towing knee. Notwithstanding this exhibit, the court found from the testimony of the witnesses that at the time of the accident the knee was equipped with a handrail. There is no proof of the time when the picture was taken.
With regard to the libellant's request to argue the case before findings were made, on December 30, 1953, the court mailed to counsel for the libellant and respondents a letter which stated:
Herewith are tentative findings of fact in the above cases.
If you desire to file briefs and have oral argument, kindly advise.'
Counsel for the libellant did not reply to the letter and on January 19, 1954, counsel for the respondents advised by telephone that he did not desire to make further argument.
Furthermore, at the argument on the pending motions, the libellant was given the opportunity to make full argument on all issues of the case.
In order that a new trial be granted or a trial be re-opened to allow in new evidence, the evidence must in fact be newly discovered, that is, discovered since the trial. Facts must be alleged which disclose diligence on the part of the movant and the evidence must not be merely cumulative or impeaching. The evidence must be material to the issues involved and it must be of such nature as would probably result in an alteration of the decree of the court. In my opinion, the matters which libellant presents in his motion do not satisfy these requirements.
In his brief, libellant urges that notwithstanding the court's finding that libellant's injuries resulted solely from his own negligent act and not because of unseaworthiness of the vessel, nevertheless he is entitled to an award for pain and suffering which he endured as a result of the alleged failure of the master to promptly provide him with medical care. He argues, as we understand it, that such neglect is a form of unseaworthiness and not barred in this case by the statute of limitations. However, upon reconsideration of the evidence as to the nature of libellant's injuries, I make the following additional findings:
Finding of Fact
25. During the period from the time of libellant's injury to the time he left the ship, the master did not breach any duty or obligation owed to libellant by respondents.
Conclusion of Law
(6) Respondents are not liable to libellant for the pain and suffering which he endured as a result of the injuries which he sustained on May 28, 1945.
An order will be entered refusing the libellant's motions.