The opinion of the court was delivered by: LUONGO
The trial of this matter was not long, but it was drawn out. It was started at a time when libelant was in this country, but had to be suspended to enable respondent to conclude its discovery and the taking of depositions. The trial, therefore, started on December 17, 1963. Testimony was presented on December 17, 18 and 19, 1963, and on June 17, 1964. In addition, a number of depositions were presented. Upon the pleadings and the proof thus submitted, I make the following
1. Libelant, Theodoros Kontos, is a citizen of Greece who resided in that country until September 1962 at which time he married a citizen of the Netherlands and he has resided in the latter country since that time.
3. Respondent, Southern Star Shipping Company, Inc., a New York corporation with offices located in New York City, it agent for various shipowners, including the owner of the SOPHIE C., while the vessels of such owners are located in American waters. It was the American agent for the SOPHIE C. at the time of the events material to these proceedings. Its officers are both United States and Greek citizens and its sole stockholder, George Coumantaros, is a United States citizen.
4. Excelsior Shipping Company, Ltd., a Liberian corporation, was, at the times here material, the owner of the SOPHIE C. Its officers were United States and Greek citizens. Its sole stockholder, John Coumantaros, is a Greek citizen who resides in Argentina. It maintained a general agent in Piraeus, Greece.
5. Peter Paul Vucetic was master of the SOPHIE C. until October 22, 1957, and Nicolaos Vekios was master thereafter. They were citizens of Greece as were all except four of the 35 to 40 members of the ship's crew.
6. On October 17, 1957, at the port of San Pedro, California, libelant made arrangements to join the SOPHIE C. as a fireman. At that time he requested and was granted an advance of $ 40 against the amount to be earned in the future, to tide him over while in the port of San Pedro until he joined the crew.
7. On October 23, 1957, libelant signed articles of employment as a crew member on the SOPHIE C. with the rating of fireman, at the wage of $ 120 per month, for one or more voyages to a port of final discharge at the discretion of the master.
8. The articles of employment, designated 'Crew Roll and Agreement' which libelant signed, were printed in both the English language and the Greek language. Libelant is able to read and write the Greek language and he was familiar with and understood the terms and conditions contained in the articles of employment when he signed them.
9. The articles of employment contained a provision that 'in the event of illness or death resulting from ordinary causes while in service, the Owner's liability as regards treatment, maintenance, and compensation is to be settled in accordance with the provisions of the Greek Merchant Shipping Collective Agreement of 1951.'
10. As a fireman aboard the SOPHIE C., the libelant's tour of duty in the engine room was 8:00 a.m. to noon, and 8:00 p.m. to midnight during each day of the week. His duties consisted of changing and cleaning the furnace burners and checking the fire, steam, and water.
11. From the time libelant signed on in October 1957, until April 1958, the SOPHIE C. made a series of voyages between San Pedro, California, San Juan, Peru and ports and Japan.
12. On April 14, 1958, the SOPHIE C. arrived in the port of Hirohata, Japan. Libelant, having finished his morning watch in the engine room at noon and being scheduled to return to duty at 8:00 p.m., went to his cabin, washed his hands, had his noon meal in the mess room, and returned to his room where he slept for one or two hours.
13. When libelant awakened, the SOPHIE C. was preparing to dock. Libelant made preparations to go ashore and, while bathing and shaving, drank whiskey or rum. He left his room, located one deck below the main deck, and went to the master's room, located on an upper deck, some three or four flights of stairs above the deck where libelant's room was, for the purpose of obtaining a shore pass and a portion of his wages for use while ashore.
14. The master refused libelant's request for a shore pass because of libelant's drunken condition, and ordered him to return to his room. At that time the vessel was docked and relatively free of motion.
16. After the libelant left the master's room, he was seen by the Third Officer, Mr. Bafaloukas, walking in the passageway of the officers' deck, located one deck above the main deck. The Third Officer saw libelant swing at a glass door, stopped him and warned him that he might hurt himself, whereupon libelant desisted and went on his way.
17. Libelant did not return to his room, as he had been ordered to do by the master, but instead went to the crew's smoking room. He arrived there safely. At 5:00 p.m., while in the smoking room, libelant, in anger at being refused a shore pass, drove his fist through a glass door, sustaining a cut in the area of the wrist.
18. Intoxicating beverages were not prohibited aboard the SOPHIE C. Crew members could purchase whiskey or beer, but were required to do so through the ship's steward. The cost thereof was deducted from the seamen's wage account. In the six months voyage, libelant purchased one bottle of whiskey from the steward.
19. Notwithstanding that liquor was permitted aboard, the SOPHIE C. was well run, was not disorderly or dangerous, was reasonably fit for its intended use, and was seaworthy.
20. Libelant was given first aid treatment aboard the vessel, and thereafter was promptly taken ashore at Hirohata where the wound was sutured and dressed by Japanese physicians. Following this incident, libelant was unfit for duty and did not work aboard the vessel.
21. Libelant was given medical treatment ashore again at Hirohata, and when the vessel moved on to Hiroshima, where it remained from April 22 to April 30, he was there given medical treatment consisting mainly of dressing changes.
22. On April 26, 1958, the doctor at Hiroshima recommended one week's rest, which advice was entered in the vessel log. The rest prescribed did not require a total abstinence from performance of duties, only the avoidance of duties requiring the use of the injured arm.
23. On April 29, 1958, libelant returned to duty in the engine room, as the vessel was leaving Japan enroute to the United States. During the trip to the United States, libelant's wound became infected, causing pain and swelling.
24. Notwithstanding the condition of his hand, libelant performed his duties in the engine room with the assistance of other crew members. Because of a reduced sensitivity in his right hand to the presence of heat, libelant occasionally burned that hand when changing burners.
25. The SOPHIE C. arrived at San Francisco on May 13, 1958. On May 15, 1958, libelant was taken by the ship's agents to the Overseas Medical Center where he was examined by Dr. William H. Rustad, head of the Center and a general surgeon of established competence and experience, who prescribed hospitalization to eliminate the infection in libelants' wound.
26. Libelant signed off the vessel on May 16, 1958, and was admitted to the Hahnemann Hospital where he remained until June 6, 1958. An operation was performed to treat the infection. In the course of the operation, there was found in the wound heavy suture material (of the type commonly used in Japan) which contributed to the infection. Dr. Rustad diagnosed the injury as a partial severance of the median nerve and a cut of the long tendon to the right thumb, producing restriction in the movement of the thumb and first two fingers and loss of sensation in that area of the right hand. ...