The opinion of the court was delivered by: DUSEN
In this maritime contract action, libellant (an able seaman and crew member of the Captain N. B. Palmer, which was owned, operated and controlled by respondent during 1953) seeks wages and maintenance and cure as a result of personal injuries and disability
alleged to have been sustained aboard that ship on August 25, 1953. Since the filing of respondent's motion to dismiss the action, libellant has stipulated that on November 15, 1953, he was paid maintenance for the period up to and including October 12, 1953, and that he makes no claim for maintenance for the period from October 27, 1953, to December 29, 1953. However, the motion to dismiss the action must be denied, since libellant is entitled to an opportunity to prove his claim for maintenance and wages for the following periods:
(a) October 13, 1953 to October 27, 1953.
The fact that the U.S. Public Health representatives gave libellant a fit-for-duty slip on October 12, 1953, does not preclude him from an opportunity to show he was not in fact under disability during this period.
See Lipscomb v. Groves, 3 Cir., 1951, 187 F.2d 40.
(b) Period subsequent to February 19, 1954.
The foregoing makes it unnecessary to pass on respondent's contention that the receipt by libellant of maintenance for the period from December 29, 1953, to February 19, 1954, and of wages for the period December 29, 1953, to January 24, 1954, precludes his claim for maintenance and wages during these periods.
However, the cases cited by respondent on page 4 of its brief are inapplicable to this situation, where, as to the periods stated in the foregoing sentence, libellant is bringing this action on behalf of the owner of S.S. Badger Mariner.
Apparently, respondent concedes that if there has been an assignment to libellant of the Badger Mariner claim, an appropriate amendment of the libel would permit recovery in this action.
Since the United States Court of Appeals for the Third Circuit has emphasized the desirability of a person such as libellant being kept free of economic pressure through prompt payment of maintenance and cure,