New York Tank Barge Corp., 1941, 314 U.S. 104, 112, 62 S. Ct. 156, 86 L. Ed. 89.
The libellants' primary contentions have been that negligence contributing in part to, and unseaworthiness causing, the explosion consisted of (a) the failure to post lookouts and (b) the failure to turn on the degaussing mechanism. The trial judge rejects contention (a) because the evidence overwhelmingly shows an under-water explosion from a mine which could not have been seen by lookouts, even if they had been posted. Contention (b) is rejected because of libellants' failure to sustain their burden of showing, by the fair preponderance of the evidence, either that failure to have the degaussing equipment on at the time and place of the accident was negligence or unseaworthiness, or that such failure (even if it were unseaworthiness or negligence) contributed in any part to the accident, since the degaussed signature of the Cedar Mills was sufficient to detonate a German combination magnetic-acoustic mine of the type involved here even if such mine was the type involved in this case. Unless the mine which was detonated at Ancona harbor contained a magnetic element, contention (b) cannot be sustained. Libellants have, at most, raised a doubt in the trial judge's mind on this fact issue.
Furthermore, since the same facts which support the inference that a mine with a magnetic element was present support equally the inference that a mine with an acoustic element only was present, the libellants have not sustained their burden of proof.
See Pennsylvania R.R. Co. v. Chamberlain, 1933, 288 U.S. 333, 339-340, 53 S. Ct. 391, 77 L. Ed. 819; Kehoe v. Commissioner, 3 Cir., 1939, 105 F.2d 552, 555, reversed on other grounds
Helvering v. Kehoe, 1950, 309 U.S. 277, 60 S. Ct. 549, 84 L. Ed. 751; McAllister v. United States, 2 Cir., 1953, 207 F.2d 952, 954; Stirk v. Mutual Life Insurance Co. of New York, 10 Cir., 1952, 199 F.2d 874, 877.
B. Maintenance and cure
1. Libellant O'Neill
Since libellant O'Neill was furnished maintenance and cure by his family during his periods of disability prior to May 1955 (see Finding of Fact No. 13 above) and since he had no disability between May 1955 and the time of trial (May 1956), he is only entitled to maintenance and cure for one week, as stated in the above-mentioned Finding of Fact No. 13. It has been consistently recognized that a seaman is not entitled to maintenance and cure during the period that he has lived at home with his family. Johnson v. United States, 1948, 333 U.S. 46, 50, 68 S. Ct. 391, 92 L. Ed. 468; Stolper v. United States, 1950 A.M.C. 551 (E.D.Pa.1950); Nunes v. Farrell Lines, Inc., D.C.D.Mass.1955, 129 F.Supp. 147.
2. Libellant Alltmont
Libellant Alltmont was disabled from the time he left the Public Health Hospital in the New York area on March 19, 1946, until January 22, 1947, when he was given a 'fit for duty' classification (see Exhibit L-11). He was also disabled as the result of this explosion which activated a pre-existing hernia condition, which required surgery, from October 27, 1947, to November 6, 1947 (see Exhibit L-14). He was disabled after this surgery from November 6, 1947, to December 10, 1947.
He is entitled to maintenance and cure for these two periods -- namely, 310 days and 34 days, respectively, or a total of 344 days.
C. Liability for consequential damages resulting from failure to pay O'Neill maintenance and cure.
It is clear that a shipowner is liable for any damages resulting from his failure to provide maintenance and cure promptly, where he was given notice that such maintenance and cure was required and the seaman was unable to procure proper care due to indigence. Sims v. United States, 3 Cir., 1951, 186 F.2d 972; Graham v. Alcoa S.S. Co., 3 Cir., 1953, 201 F.2d 423, 425. Libellant O'Neill contends that the filing of the libel in this case on December 11, 1946, gave respondents notice that he required psychiatric medical treatment for his mental condition.
He was advised by the representatives of the respondents to go to a doctor about this condition when he signed off in December 1945, but did not do so because he thought it would pass off (N.T. 277-8). This libellant applied for 'medical help' for the care and cure of his anxiety state (see Finding of Fact No. 14) in 1946, prior to his original examination by Dr. Levine on September 10 of that year. He was advised by the Public Health Service to go to the Philadelphia General Hospital, but he did not do so for these reasons (N.T. 421):
'He didn't want to consider himself a charity case, and he had a lot of feeling about being considered a mental case. It was for these reasons that he avoided seeking any specific help.'
The record also indicates that libellant was paid approximately $ 500 when he was paid off in December 1945 (see Amended Answer to Requests for Admission No. 8, filed 11/4/55). He had also earned the following amounts between December 1945 and the time he filed his complaint in 1946, alleging that the refusal of the respondents to furnish him maintenance and cure had aggravated his anxiety state:
Board of Education, April 1946-July 1946 n31 $290.55
Philadelphia Record, September 1946-January 1947
(17 weeks X $22.00; see N.T. 293) 374.00
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