The opinion of the court was delivered by: GOURLEY
This is a non-jury trial under the Jones Act based on negligence and unseaworthiness, and in admiralty for maintenance and cure. 46 U.S.C.A. § 688.
The actions have been pending for an extraordinary length of time upon the docket of this court, having been filed March 15, 1948. Aside from continuances granted upon the request of counsel, by reason of commitment of one counsel or another in the trial of litigation in other courts, considerable delay was caused by the unavailability of the plaintiff, Charles Brown, who could not be located in spite of assiduous and protracted efforts on the part of his counsel. Nevertheless, this court, cognizant of its responsibility to a seaman who under law is deemed a ward of the court, enlisted the services of the Federal Bureau of Investigation, which conducted a most exhaustive search and secured information which materially assisted in locating plaintiff, and made possible the disposition of these proceedings.
The precise date of the alleged accident by reason of unavailability of the shiplog appears to be indefinite, varying from April 20, 1947, to September 19, 1947. For the most equitable disposition of these proceedings, based upon its reconstruction, the court finds September 15, 1947, as the date of accident.
Libellant contends that as he was moving backwards, his foot stepped on a loose, slack hemp line, and his foot rolled with the line causing him to fall. The fellow employee, on the other hand, states that libellant's heel hit the drain that went across the guard of the vessel.
Upon libellant's admission to the Marine Hospital on October 15, 1947, he gave a history merely of slipping or falling without reference to a loose hemp line. Likewise, the history given his personal physician corroborates the testimony presented by the fellow seaman which similarly fails to advert to a loose hemp line.
It is the court's conclusion that libellant has failed to establish by the preponderance or the weight of all the credible evidence either negligence or unseaworthiness on defendant's part, but on the contrary the evidence establishes that libellant's falling was a fortuitous circumstance over which defendant had no control.
Libellant has not established his right to recover under the Jones Act based on negligence, nor in admiralty based on unseaworthiness.
As to the action for maintenance and cure, claims are presented for a hernia condition and injury to the left leg alleged to have resulted from the accident. Most substantial and irreconcilable conflict exists in the record as to whether or not the hernia arose as a result of the employment, or whether the hernia condition preceded the accident.
In order to resolve this issue, I found it necessary to permit libellant's estranged wife to testify as to his physical condition prior to the accident. Taylor v. Crain, 3 Cir., 224 F.2d 237. I am satisfied that the wife's testimony was credible and sufficiently established the existence of libellant's complaint of hernia prior to the time of accident, and in my judgment must render his claim for a hernia condition as not credible nor valid.
I must, however, conclude otherwise as to the leg injury. The leg injury was clearly evidenced in the Marine Hospital record upon libellant's admission on October 15, 1947. An examination of libellant of October 14, 1947, reflected a derangement of the internal cartilage of the left knee joint with subcutaneous hemorrhage and contusion of the left hip joint with subcutaneous hemorrhage. As a result of the condition to the left leg, the libellant has a disability of forty to fifty per cent in the open labor market. Surgery could be performed by an orthopedic surgeon for the condition of the left leg, but because of the long standing problem and lapse of time during which the condition has existed, the degree of success to be expected from such an operation cannot be stated with any degree of certainty. A surgeon could at least make efforts to strengthen the ligaments of the joint and should the cartilage be injured, it could be removed, providing additional strength and stability, with the probability of some residual disability. I must, therefore, find that the seaman has not reached the point in his recovery where care and nursing would not benefit him. Shields v. U.S., 3 Cir., 175 F.2d 743, 745.
Defendant contends that even if it were assumed that the accident did result in conditions justifying maintenance and cure, an obligation rested on the libellant to take advantage of maintenance and cure available to him and make known his need therefor to defendant. The court must recognize that defendant was sufficiently apprised of libellant's condition when the suits were filed on March 15, 1948, and the pending proceeding constituted notice of libellant's need for maintenance and cure. It is to be noted that not only the court but that also the employer occupies a position of guardianship towards an injured seaman. Murphy v. American Barge Line Co., 3 Cir., 169 F.2d 61. Nor is the seaman required to be under the care of a physician to assert a claim for maintenance and cure. Seville v. U.S., 9 Cir., 163 F.2d 296, 297.
An order for an award for maintenance and cure should be entered in the amount of $ 5 per day commencing October 2, 1947, and including November 30, 1956, final date of hearing, less periods of hospitalization, incarceration and gainful employment.
In view of the apparently undisputed medical prognosis that surgery could undoubtedly better the seaman's condition as it relates to his left leg, it is suggested and recommended that immediate steps be taken in this direction. In connection therewith, I advert to that rule of law wherein the court is empowered to award such reasonable sums as the circumstances of the case indicate to cover future treatment for a foreseeable future period of time. Farrell v. U.S., 336 U.S. 511, 69 S. Ct. 707, 93 L. Ed. 850; Chesser v. General Dredging Co., D.C., 150 F.Supp. 592.
1. Libellant, Charles Brown, is a citizen of the State of Pennsylvania and resides in ...