The opinion of the court was delivered by: KRAFT
From the evidence in this action for maintenance and cure, the court makes
1. Libellant, James D. Cotton, as an employee of both respondents, signed on as messman in the crew of the SS 'William H. Wilmer' on September 9, 1953.
2. Dr. George E. Burden, on respondents' behalf, made a pre-sign-on physical examination of the libellant, and, upon the basis of his examination, reported the libellant fit for sea duty.
3. For almost a year before Dr. Burden's examination, libellant was aware of recurrent periods of testicular and abdominal pain, but did not disclose that knowledge to Dr. Burden.
4. The voyage of the SS 'William H. Wilmer' began on or about September 9, 1953, at Philadelphia, Pennsylvania, and terminated November 28, 1953, at Portland, Oregon.
5. On or about October 2, 1953, the day following the vessel's departure from Los Angeles, California, for Inchon, Korea, libellant reported to the master of the 'William H. Wilmer' that he was suffering from pain in the abdominal and testicular area. Libellant made no claim of accidental injury to the master, who administered aureomycin capsules.
6. Libellant returned for further treatment on October 3, 9 and 11, 1953. On one of these occasions libellant informed the master that when he had had a similar pain previously, penicillin had afforded him relief. The master caused one or more doses of penicillin to be administered.
7. Libellant's onslaught of pain did not occur, as libellant testified, when the vessel was a week or ten days from Inchon, Korea, on the date when spoiled potatoes were jettisoned and a boat drill held. The spoiled potatoes were jettisoned at sea on September 29, 1953, before the vessel's arrival at Los Angeles. No boat drill was held that day. Boat drills were held on September 28 and October 5, 1953. The vessel arrived at Inchon, Korea, October 27, 1953.
8. The testimony of the libellant that the onslaught of pain in the testicular and abdominal area occurred while he was engaged in dumping spoiled potatoes overboard at a time when the vessel was a week or ten days from Inchon, Korea, was wilfully false and not merely mistaken recollection.
9. After October 11, 1953, the libellant made no request to the ship's officers for further medical care. Although the vessel stopped for several days at Inchon, Korea and Kure, Japan, libellant made no effort to seek medical examination or treatment by any doctor ashore, though he had opportunity to do so.
11. Prior to, during and subsequent to his service as a member of the crew of the SS 'William H. Wilmer', libellant suffered from the effects of an anatomical malformation, a congenital defect, consisting of high insertion of the testis on the left side. This defect resulted in occasional spontaneous twisting of the spermatic cord upon itself, an event productive of acute abdominal pain. Ordinarily, the spermatic cord untwists itself within half an hour of such occurrence and the swelling of the testicle caused by the attack and the accompanying pain abates in twenty-four ...