Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

GORE v. MARITIME OVERSEAS CORP.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


June 1, 1966

Edgar L. GORE
v.
MARITIME OVERSEAS CORPORATION and Ocean Cargo Ships, Inc. Edgar L. GORE v. CLEARWATER SHIPPING CORP. v. MARITIME OVERSEAS CORPORATION and Ocean Cargo Ships, Inc. Edgar L. GORE v. MARINE CARRIERS CORPORATION and Oceanic Petroleum Carriers, Inc. v. MARITIME OVERSEAS CORPORATION and Ocean Cargo Ships, Inc. Edgar L. GORE v. MARINE CARRIERS CORPORATION v. MARITIME OVERSEAS CORPORATION and Ocean Cargo Ships, Inc. Edgar L. GORE v. WATERMAN STEAMSHIP CORPORATION v. MARITIME OVERSEAS CORPORATION and Ocean Cargo Ships, Inc. Edgar L. GORE v. VENORE TRANSPORTATION CO.

The opinion of the court was delivered by: VAN DUSEN

SUR PLEADINGS AND PROOF

 VAN DUSEN, District Judge.

 These six admiralty actions were consolidated and tried to the court on December 13-15, 1965. Unless otherwise specified, all findings of fact shall be equally applicable to each of the first four captioned causes, as agreed to by the parties (N.T. 258-260). *fn1"

 The libellant in all these actions, Edgar L. Gore (hereinafter "Gore"), was at all times herein relevant a seaman in the United States Merchant Marine (N.T. 235). Respondents in No. 131 of 1962 (who are also the impleaded respondents in Nos. 163 of 1963, 449 of 1963, 279 of 1964 and 39 of 1965), Maritime Overseas Corporation and Ocean Cargo Ships, Inc., are corporations which owned and/or operated the S.S. "Globe Carrier" (N.T. 235). Respondent in No. 163 of 1963, Clearwater Shipping Corporation, is a corporation which owned and operated the S.S. "Midland" (N.T. 235). Respondent in No. 449 of 1963, Oceanic Petroleum Carriers, Inc., is a corporation which owned and operated the S.S. "Elemir" (N.T. 235). Respondent in No. 279 of 1964, Marine Carriers Corporation, is a corporation which owned and operated the S.S. "Commander" (N.T. 237). Respondent in No. 39 of 1965, Waterman Steamship Corporation, is a corporation which owned and operated the S.S. "Colorado" (N.T. 12). Respondent in No. 271 of 1965, Venore Transporation Company, is a corporation which owned and operated the S.S. "Chilore" (N.T. 222). *fn2"

 Since the libellant originally instituted these six actions in order to recover maintenance and cure from his shipowner-employers, it is necessary to set forth in some detail his lengthy medical history. *fn3"

 On August 17, 1954, libellant, while at sea on the S.S. "Republic," slipped and injured his back (p. 32, Dep. of Gore, 2/26/63, filed as Document 34 in 131/1962). On August 23, 1954, he reported to Philadelphia, complaining that since the accident his back had bothered him. On August 26, 1954, he complained of lumbosacral pain, but said that his condition was improving. X-rays were negative for bone or joint pathology. On September 9, 1954, he was much improved and was marked "fit for duty" (p. 1, R.Com-2; *fn4" N.T. 148). Libellant thereafter returned to sea duty.

 In March of 1955, he reported to Philadelphia on eight different occasions for treatment of a cut in his right hand which had become infected (p. 2, R.Com-2) and at no time during this period did he make any complaints about his back (N.T. 148). Libellant was treated for injury to his left elbow in 1955 and for a laceration of the left hand in 1957 (Dep. of Kaplan, filed as Document 30 in 131/1962, p. 11).

 On December 22, 1957, libellant, in the course of his work on a ship, "Poling Bros. No. 9," felt a snap in his back while lifting a 75-pound hose. Pains in his back caused by this accident resulted in libellant seeking medical attention at Philadelphia, which referred him to Baltimore for intensive care for a "right inguinal hernia and lumbosacral strain" (RM-9). Libellant was hospitalized in Baltimore from January 4 to January 23, 1958, and again from February 4 to February 20, 1958, when he was discharged "not fit for duty for one month" (RM-9). During the hospitalization from January 4 to January 23, 1958, there was some radiation of back pain and the back pain was severe enough to merit postponement of the hernia operation (N.T. 114). During the hospitalization from February 4 to February 20, 1958, a right inguinal herniorrhaphy was performed and treatment was given for back complaint (RM-9). Also during this latter hospitalization period there were no significant leg symptoms and no spasm (N.T. 150), and the back showed a normal curve with sensory reflexes in the leg normal. There was no atrophy and straight leg raising was negative (N.T. 151). After recovery from surgery, he again returned to maritime employment.

 Libellant was hospitalized in Baltimore on May 2, 1958, with a history of right shoulder pain. He was discharged on May 9, 1958, fit for duty (the diagnosis having been calcific peritendonitis) and was later readmitted with the same complaints on June 18, 1958. A curettement of calcium particles was performed and he was discharged on July 2, 1958 (RM-9). During these periods of hospitalization (May 2 to May 9, 1958, and June 18 to July 2, 1958), there was no treatment given to libellant for his back and no complaints or symptomatology referable to the back (N.T. 152-3).

 On October 3, 1960, libellant reported to Philadelphia that three weeks previously he had had a dull pain in his left lower back which stopped the following day and then appeared in the back of his thigh. A day or so later the pain left his thigh and went to the back of his leg, where it persisted. The ankle was swollen for two days and the calf muscles were weak, and he could not stand on the toes of that foot. Whirlpool baths were given to the extremity and by October 25, 1960, the leg was much better (RM-5; p. 18, Dep. of Kaplan).

 Libellant joined the S.S. "Globe Carrier" on or about December 28, 1961 (p. 3, Dep. of Gore, 2/26/63, Document 34 in 131/1962). On December 30, 1961, the libellant was examined by Dr. George E. Burden in Philadelphia for medical approval of his fitness for sea duty as a crew member on the S.S. "Globe Carrier" (N.T. 172). Dr. Burden fund the libellant physically fit for duty (N.T. 178). The libellant did not disclose his previous medical history concerning his back (N.T. 173). At the time of his physical examination, the libellant thought himself physically fit (p. 4, Dep. of Gore, 2/26/63, Document 34 in 131/1962). The libellant did not tell Dr. Burden of his previous ailments because "they hadn't bothered me for years" (p. 15, Dep. of Gore, 10/19/65, filed as Document 35 in 163/1963). Dr. Burden might have investigated libellant's back condition had he known of it on December 30, 1961 (N.T. 180).

 On January 17, 1962, the S.S. "Globe Carrier" was in a Rotterdam shipyard undergoing repairs (p. 4, Dep. of Gore, 2/26/63, Document 34 in 131/1962). Libellant and other crew members had been assigned to carrying dry stores from back aft to midship in order to enable the shipyard workers to make the necessary repairs (p. 5, Dep. of Gore, 2/26/63, Document 34 in 131/1962; p. 17, Dep. of Kukk, filed as Document 21 in C.A. 31393, admitted in evidence in these cases as N.T. 194). On his first trip in moving stores at about 1600 hours, while carrying two cartons of canned milk weighing approximately 50 pounds, the libellant slipped and fell as he was stepping across the raised sill of the bulkhead doorway. The fall was caused by libellant's slipping on a "log" which he did not see and which was used as a temporary intermediate step inside the doorway around which either sugar or salt was scattered (pp. 4-6, 9-11, 14 and 20, Dep. of Gore, 2/26/63, Document 34 in 131/1962; p. 6 Dep. of Gore, 11/19/65, Document 35 in 163/1963). The sugar or salt was spilled from bags being moved at that time by other members of the crew (pp. 11, 13, 14 and 16, Dep. of Gore, 2/26/63, Document 34 in 131/1962; RM-2-1). After the accident, libellant worked overtime from 6:00 to 7:30 P.M., connecting ballast hoses (RM-2-3). Raul Kukk, Chief Officer of the S.S. "Globe Carrier," gave the order for shifting stores (p. 18, Dep. of Kukk), obtained a signed statement from a witness to the accident, Herbert C. Justice, and then prepared a Report of Personal Injury (pp. 24 & 29, Dep. of Kukk), to which the statement of the witness was attached (RM-2-1).

 On January 18, 1962, the day following the accident, the libellant reported to the Chief Officer that he had tripped on the threshold and injured his left leg (Dep. of Kukk, p. 9). Libellant was sent to the hospital in Rotterdam, where the doctor reported that he had a hematoma of the left leg and requested him to return on January 22, 1962 (RM-2-2). On that date, libellant complained of lower back pain and the doctor recommended two weeks rest (RM-2-4).

  Libellant returned to the United States aboard the S.S. "Globe Carrier" but did no work during the course of the voyage. The vessel arrived in Philadelphia on February 5, 1962, and two days later libellant submitted himself for treatment at Philadelphia (RM-10).

 Libellant received out-patient treatment in Philadelphia from February 7, 1962, through April 9, 1962 (RM-10). On February 13, 1962, Dr. Burton Chance, Jr., orthopedic consultant, reported:

 

"On the 18th of January this year this patient fell on board ship and sustained rather severe bruises of the left thigh and calf, and following the fall developed pain in the left sacroiliac area with referred pain down the posterior thigh to the outer calf and foot. This pain is increased on coughing and straining, the ecchymosis has cleared up but he has pain on straight leg raising and he does not have good power in his gastroc.

 

"This man has sciatica, I believe, as a result of his fall. He should be put on rest, physical therapy, vitamin B, and is at present not fit for duty." (RM-10)

 Libellant was hospitalized in Baltimore on April 10, 1962, and was treated for acute low back strain and discharged on April 24, 1962, "not fit for duty for fourteen days" (RM-11). During the period of hospitalization in Baltimore from April 10 to April 24, 1962, there was some limitation of forward flexion, an abnormal lumbo lordotic curve and tenderness over the spinous processes of L5-S1 and the lumbosacral area. Libellant was treated with traction and physical therapy and given medication (RM-11). Libellant was treated in Philadelphia from May 11 to June 12, 1962, when he was permitted to return to work on a trial basis (RM-10). On May 29, 1962, Dr. Chance reported:

 

"This patient continues to have low back pain to the left thigh, groin and calf. He has considerable pain on coughing and sneezing.

 

"I would suggest that he be fitted for a corset and that the corset have a sacroiliac pad added to it and that he continue with his physical therapy." (RM-10)

 On June 12, 1962, libellant was given a fit-for-duty on a trial basis slip and on July 31, 1962, he joined the crew of the S.S. "Midland," on which he worked until August 15, 1962 (p. 6, Dep. of Gore, 10/16/65, Document 35 in 163/1963; p. 38, Dep. of Gore, 2/26/63).

 The libellant suffered pain in his back when he joined the S.S. "Midland" (p. 15, Dep. of Gore, 10/19/65, Document 35 in 163/1963). Although he had no accident aboard the S.S. "Midland" (p. 35, Dep. of Gore, 2/26/63, Document 34 in 131/1962; p. 7, Dep. of Gore, 10/19/65, Document 35 in 163/1963), libellant testified that his back condition "came on worse" when he made a "hard left rudder" while standing wheel watch (Gore Dep., p. 35, 2/26/63, Document 34 in 131/1962). Between the time the libellant left the S.S. "Midland" and the time he joined the S.S. "Elemir" (his next ship), he was not involved in any accident involving his back (p. 8, Dep. of Gore, 10/19/65, Document 35 in 163/1963). Libellant received out-patient treatment in Philadelphia from August 17, 1962, for low back pain (R.Com-4), after which he was hospitalized in Baltimore from August 21 to August 31, 1962, for low back derangement (RM-12). During the hospitalization in Baltimore from August 21 to August 31, 1962, there was paraspinal muscle spasm and pain which was considered "possible sciatic irritation on the left" (RM-12). Libellant was discharged from this period of hospitalization in Baltimore "not fit for duty" and ordered to wear a back brace (RM-12). On September 21, 1962, libellant returned to Philadelphia; bed rest for four weeks was ordered (R.Com-4).

 On October 16, 1962, libellant was examined by Dr. Martin L. Beller on behalf of impleaded respondents, Maritime Overseas Corporation and Ocean Cargo Ships, Inc. (N.T. 109). Dr. Beller reported that the libellant complained of constant pain, worse on walking, standing and climbing steps (N.T. 111). During the course of his examination, Dr. Beller found tenderness in the L5-S1 area and tenderness in the left buttocks (N.T. 145). Dr. Beller was of the opinion that, at the time of his examination on October 16, 1962, libellant had "genuine difficulties" in the low back and left sciatic nerve with positive signs in regard to restriction of back movements, positive straight leg raising on the left side, and a small diminution of the left ankle jerk (N.T. 115, 134, 145). Dr. Beller was unable to determine when the condition he found on his examination in 1962 had arisen (N.T. 129-131).

 Libellant was treated on an out-patient basis at Philadelphia from October 19 through November 30, 1962, when he ased for and received a "fit for duty" slip, but he returned six days later on December 6, 1962, and was sent to Baltimore (R.Com-4). Libellant was hospitalized in Baltimore for low back derangement from December 10, 1962, to January 6, 1963, when he was discharged "not fit for duty for one month" (RM-13). Libellant was seen in February and March 1963 in Philadelphia and declared "not fit for duty", but in April, when he returned to Baltimore, he requested a "fit for duty" slip and received it (p. 9, Dep. of Kaplan, Document 30 in 131/1962).

 Libellant served on the S.S. "Elemir" from April 9 to June 12, 1963 (pp. 8-9, Dep. of Gore, 10/19/65, Document 35 in 163/1963). The libellant suffered pain in his back when he joined the S.S. "Elemir" (p. 16, Dep. of Gore, 10/19/65, Document 35 in 163/1963). Although the libellant had no accident while serving on board the S.S. "Elemir" (p. 9, Dep. of Gore, 10/19/65, Document 35 in 163/1963), he had trouble with his back and legs while on that ship and went to see a doctor in Port Said, Egypt where he was examined and marked "unfit for duty" (p. 9, Dep. of Gore, 10/19/65, Document 35 in 163/1963). Because of his back and leg difficulties, libellant was compelled to leave the S.S. "Elemir" in New Orleans on June 12, 1963 (p. 8, Kaplan Dep., Document 30 in 131/1962). From June 14, 1963, to April 15, 1964, libellant was treated on an out-patient basis both at Philadelphia and Baltimore (RW-5; RW-6; RW-7; R.Com-6; R.Com-7; R.Com-8, Kaplan Dep., pp. 8 & 9). On December 12, 1963, libellant was examined by Dr. Richard Kaplan, orthopedic surgeon, on behalf of Clearwater, Oceanic, and Marine (p. 5, Kaplan Dep). At the time of the examination by Dr. Kaplan, libellant complained of pain in the left low back. Dr. Kaplan found that libellant was able to forward bend to 100 degrees but that he failed to reverse his curve; he found a protective spasm, and lesser ability to straight leg raising of the left leg and a complaint of pain on straight leg raising on the left side, directly confirmed by testing (pp. 9, 12 & 13, Dep. of Kaplan). X-rays taken under Dr. Kaplan's direction showed some narrowing at the lumbosacral joint (Dep. of Kaplan, p. 14).

 From June 12, 1963, until he joined the S.S. "Commander" on April 19, 1964, libellant was not involved in any accident involving his back (p. 11, Dep. of Gore, 10/19/65, Document 35 in 163/1963). On January 14, 1964, in Baltimore, libellant was marked "not fit for duty indefinitely" (RW-6), but on April 15, 1964, libellant was declared fit for duty (RM-4).

 Libellant served on the S.S. "Commander" from April 19 to May 21, 1964 (p. 12, Dep. of Gore, 10/19/65, Document 35 in 163/1963). While on this vessel in April 1964, the libellant injured his left ankle when he caught his foot in a doorway (pp. 12 & 17, Dep. of Gore, 10/19/65, Document 35 in 163/1963). The libellant testified that he was treated for both his ankle and his back following this accident (p. 12, Dep. of Gore, 10/19/65, Document 35 in 163/1963).

 Libellant received out-patient treatment for his ankle in Philadelphia from May 21 to June 8, 1964 (RW-8; RM-8), and was hospitalized for further treatment of the ankle in Baltimore on June 10, 1964 (RM-15; N.T. 154). While libellant was in the hospital, having been admitted on June 10, 1964, he had difficulty with low back pain (RM-15; N.T. 153-5). The record discloses no evidence of additional treatment for his back at this time, except that he was advised to continue wearing his brace and to do no heavy activity (RM-14). The libellant received further out-patient treatment for his ankle and for his back from June 24 to September 1, 1964, in Philadelphia (RW-8; RW-9).

 Dr. Henry Sherk, orthopedic consultant, reported on July 30, 1964:

 

"This 48 year old man has been complaining of low back pain since 1962 when he fell on board a ship. The pain radiates in the posterior aspect of the left leg. Examination reveals moderate limitation of the lumbosacral spine, Straight leg raising is negative. The extensor hallucis longus is weak on the left. The patient should have a myelogram at this time. Possibility of a herniated vertebral disc is great." (RW-8)

 Libellant had recovered sufficiently by September 2, 1964, to be given a fit-for-duty slip (L-1A).

 Libellant served on the S.S. "Colorado" from September 21, 1964, until December 4, 1964 (pp. 6 & 7, Dep. of Gore, 10/19/65, Document 46 in 39/1965). The libellant was not required to submit to a physical examination in order to serve on the S.S. "Colorado" and there is no evidence that he made any misrepresentation in this regard (N.T. 14). While onboard the S.S. "Colorado" on November 6, 1964, when the ship was in port at Karachi, Pakistan, libellant stepped into a coil of wire on the deck and twisted his left leg and ankle (pp. 7-9, Document 46). This injury aggravated libellant's back condition, which had been bothering him during his voyage on the S.S. "Colorado" (p. 9, Document 46). Libellant was treated at the Seventh Day Adventist Hospital in Karachi, where he had been referred due to ankle complaints (par. 5 of Document 26 in 39/1965), for back injury. Libellant performed his regular duties onboard the S.S. "Colorado" on that vessel's return trip to Wilmington, N.C. (p. 9, Document 46 in 39/1965). He testified that his back condition was further aggravated by the "rolling and banging of the ship" (p. 12, Document 46 in 39/1965) during the exceptionally rough return passage across the Atlantic Ocean. On this same rough crossing, libellant lost his footing on the slippery deck of the rolling ship and cut his toe on a stanchion (p. 11, Document 46 in 39/1965). Libellant left the S.S. " Colorado" at Sunny Point, N.C., on December 5, 1964, prior to the termination of the foreign voyage, the Foreign Articles (which did not terminate until December 8, 1964) still being in effect (N.T. 20).

 Libellant was admitted to out-patient care at Philadelphia on December 8, 1964, and was stated to be not fit for duty (L-1B). Philadelphia referred him to Baltimore and he was admitted to the Baltimore hospital on January 4, 1965 (L-1C). During this period of hospitalization, on the recommendation of Dr. LeVan, a myelogram was performed on January 14, 1965 (L-1C).

 Libellant was discharged as not fit for duty from the Baltimore hospital on January 26, 1965, and readmitted on February 2, 1965, preparatory to exploratory surgery, which was performed on February 3, 1965, and resulted in the removal of a portion of the intervertebral disc between L5 and S1 (L-1D). Libellant made a very satisfactory recovery from surgery and started physical therapy on February 15, 1965, and was subsequently discharged from the hospital on February 19, 1965 (L-1D).

 Libellant had sufficiently recovered from surgery by June 15, 1965, that he received a fit-for-duty slip from the Baltimore hospital on that date (L-1G).

 On June 24, 1965, libellant entered the employ of respondent Venore as a member of the crew of the S.S. "Chilore" as an able bodied seaman (N.T. 221). While onboard the S.S. "Chilore," the libellant experienced trouble with his back and was forced to leave that ship in order to seek medical care on July 9, 1965 (p. 14, Document 46 in 39/1965). During the time he worked on the S.S. "Chilore," the libellant cleaned tanks, swept up rust, climbed ladders, and pulled up buckets of "rust and dust and sweepings," which aggravated his back (p. 17, Document 46 in 39/1965). Libellant received treatments from the Philadelphia out-patient clinic commencing July 13, 1965 (L-11), until he was declared fit for duty on September 28, 1965 (p. 20, Document 46 in 39/1965). (L-1K). This was the posture of the case at the time of trial.

 Gore v. Waterman v. Maritime, No. 39 of 1965 In Admiralty, and Gore v. Venore, No. 271 of 1965 in Admiralty

 These two admiralty actions were consolidated for trial with the abovecaptioned four related admiralty actions and the six cases were tried together to the court on December 13-15, 1965. This part of the opinion considers only these two of the six related cases *fn5" since libellant has settled his claims in the other four, now seeking recovery only in Nos. 39 and 271 of 1965, and since some of the evidence received in the other four cases was not received in these two cases. Since the libellant in these two actions is asking for maintenance and cure which has allegedly been wrongfully withheld, as prompt as possible a determination is desirable, while the more complicated questions of liability as between the various respondents and impleaded respondents in the other four actions can await a second opinion with findings and conclusions, which is now in preparation. *fn6" The policy of the law favors the prompt determination of the libellant's claims.

 Libellant is a seaman in the United States Merchant Marine, who entered the employment of Waterman as a member of the crew of the S.S. "Colorado" on September 21, 1964, under Foreign Articles as an able seaman. Waterman did not require libellant to submit to any physical examination before he became a member of the crew (N.T. 13-14).

 On November 6, 1964, the libellant was examined by a doctor at the Seventh Day Adventist Hospital at Karachi, Pakistan, and was given treatment because of complaints made to the hospital only referable to his back (N.T. 16). Libellant was paid earned wages by the S.S. "Colorado" up to and including December 4, 1964 (N.T. 19). When libellant left the vessel on December 5, 1964, at Sunny Point, North Carolina, the foreign voyage of the S.S. "Colorado" was not completed and the Foreign Articles were not terminated (N.T. 20). The foreign voyage of the S.S. "Colorado" concluded and the Foreign Articles terminated in New York at midnight on December 8, 1964 (N.T. 20).

 Libellant was an in-patient at the U.S. Public Health Service Hospital, Baltimore, Md., during the following periods:

 

1/4-1/26/65 (N.T. 21)

 

2/2-2/19/65 (Exhibits L-1C and L-1D)

 He was fit for duty on June 15, 1965 (L-1G; see, also, pp. 59 ff. of LeVan Deposition, being Document 20 in 163/1963, received in evidence at N.T. 96-97).

 Libellant has not sustained his burden of proving that the disability of July to September 1965 was substantially caused by the accident of November 1964.

 On June 22, 1965, Waterman sent to libellant's attorney a check in the sum of $250 (N.T. 22) on account of any maintenance which he might claim to be due from respondent (Exhibits L-3A to L-3H). Libellant's base pay at the time he served on the S.S. "Colorado" was $369.17. Maintenance and cure is payable at the rate of $8.00 a day. The cost of libellant's transportation from Wilmington, North Carolina, to Philadelphia, Pa., in December 1964 was $37.74 (N.T. 221).

 Libellant had a pattern of repeated back pains from 1954 to the time of his operation in February 1965 and at least one exacerbation (defined at N.T. 117 as a separate attack) after this operation (N.T. 116-7). His lower back (L5-S1 level) was such that an exacerbation could be caused by a bending or a moving act such as putting on his shoes, as well as by trauma (N.T. 117-8). Such exacerbations occurred in November 1964 on the S.S. "Colorado" (RW-3 and N.T. 70), at which time libellant twisted his leg when he stepped in loose wire located at the foot of a ladder (pp. 7-9 of Document 46), and in late June or July 1965 as a result of pulling up buckets of rust and dirt on the S.S. "Chilore" (pp. 14-20 of Document 46).

 Libellant has sustained his burden of showing that it is more probable than not that he in fact suffered disability, which continued until June 15, 1965, aboard the S.S. "Colorado" and respondent Waterman has not shown that it is more probable than not that any of the defenses recognized by the Supreme Court of the United States to claims for maintenance and cure are applicable in this case. See Farrell v. United States, 336 U.S. 511, 69 S. Ct. 707, 93 L. Ed. 850 (1949); Vaughan v. Atkinson, 369 U.S. 527, 530, 531, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962). The respondent Waterman has not sustained its burden of establishing that it is more probable than not that the accident of January 1962 on the S.S. "Globe Carrier" was a substantial factor in causing the libellant's disability from December 1964 to June 15, 1965, when he next became fit for duty. Although Dr. Kaplan's testimony is consistent with the possibility that this disability from December 1964 to June 1965 resulted from the January 1962 accident, it is noted that Dr. Kaplan emphasized that: (1) the first evidence of neurologic weakness was shown along the extensor hallucis longus in July 1964, prior to the November 1964 accident but long after the January 1962 accident and also after the accident on the S.S. "Commander" in April 1964 (see RM-8A, RW-8 and p. 38 of Document 30); and (2) although there was in 1962 "discogenic disease. That doesn't mean herneiated disc" (p. 30 of Document 30). Dr. Kaplan's findings were principally concerned with libellant's condition prior to November 1964 and he had not seen the libellant after December 1963 (pp. 5 and 23 of Document 30).

 The trial judge was most impressed by Dr. Beller's testimony and it is noted that Dr. Beller saw the libellant in October 1962 (N.T. 109), which was more than a year prior to the examination by Dr. Kaplan.

 Similarly, Dr. Sharrett testified that the 1962 accident was not the final exacerbation of libellant's back condition, using this language at page 27 of his deposition *fn7" (Document 34 in 163/1963, received in evidence at N.T. 55-56):

 

"Q So then the final exacerbation, if there was any worsening of a pre-existing condition, was the date of the accident aboard the vessel in Holland, is that correct?

 

"A No, sir; I can't agree with that because he stated to me, and I am again quoting from Dr. Sharrett deposition exhibit No. 1, he stated that he did improve afterwards sufficiently that he was able to return to his ship in September of 1964."

  Although Waterman contends in its trial brief (pp. 13-14 of Document 56), submitted on the first day of the trial, that the release (RW-10) and covenant not to sue (RW-11) executed by libellant in favor of Maritime on October 11, 1965, make any award to libellant in these actions a "double recovery," the record before the court does not sustain such contention and Waterman has not included any Request for Finding or Conclusion on the point (see document 55 in 39/1965). When the Civil Actions against Maritime, Oceanic and Waterman (Civil Actions 31393, 34004 and 38780), which were related to the above admiralty actions against these respondents, were called for jury trial in early October 1965, a settlement was reached and the Civil Actions were marked terminated by agreement of the parties. See pp. 2-16 and 22-23 of Document 31 in No. 131 of 1962, being transcript of a conference in the chambers of the trial judge on October 11, 1965. *fn8" The above-mentioned release and covenant not to sue were the reason for libellant's agreeing to the dismissal of the Civil Actions and these documents make clear that libellant was only waiving any claim for maintenance for the period prior to July 31, 1962. The law favors settlements of the type shown by this record, and the foregoing contention of Waterman is rejected.

 Respondent Waterman failed to pay libellant maintenance and cure concurrently with the need (see L-3A to L-3H) and required libellant to secure a lawyer and institute this action. *fn9" Libellant is entitled to a reasonable counsel fee. See Vaughan v. Atkinson, 369 U.S. 527, 530-531, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962).

 Libellant is granted 30 days within which to file an affidavit supporting his claim for counsel fee in a specific amount and respondent will be granted 30 additional days to file counter-affidavits if counsel cannot agree on the amount of such fee.

 Rulings on Requests for Findings of Fact and Conclusions of Law Concerning Waterman (Documents 54 & 55 in No. 39 of 1965)

 A. Requested Findings of Fact

 1. Paragraphs 1-4, 9, 10, 12 and 14-18 of Libellant's Requests (Document 54) are affirmed.

 Requests 8, 11, 13, 19 and 25 are affirmed as modified, as follows: in 8, the words "his back condition" are substituted for all words after "by" in the top line on page 3; in 11, the last letter (s) is deleted from the second word and the first parenthesis is deleted; in 13, the words "prior to surgery" are inserted after "care"; in 19, the words "insofar as" are substituted for the first two words of the third line; and in 25, the words "to June 15, 1965" are inserted after "disability."

 Requests 5, 6 and 26 are denied as stated.

 2. Paragraphs 1-3 ("Globe" substituted for "Gulf"), 5 and 7 of Respondents' Requests (Document 55) are affirmed.

 Paragraphs 4, 6, and 8-12 of Respondents' Requests are denied. Request 6 must be denied as stated. If the quotation means that libellant did not go the the Baltimore Public Health Hospital on or before September 1, 1964, it may be correct, but the record shows that he went to that hospital on September 2, 1964, was found "asymptomatic" and "FFD re back." See Exhibit L-1A. As to Requests 10 and 11, the libellant complained that his left leg was "real sore," as well as "I get Charlie Horses" (L-1B). On December 28, 1964, libellant complained to the Philadelphia Public Health Clinic (L-1B):

 

"Left leg pain no better. Now the right leg is also becoming involved. Pain is throbbing - just like a toothache."

 The libellant was sent to the Baltimore Public Health Hospital and a Memorandum sent from the Philadelphia Clinic to that hospital covering his case, dated December 31, 1964, started off with these words (RM-8):

 

Mr. Edgar L. Gore, 46 years of age, will report to you for re-evaluation of his low back syndrome on January 4, 1965."

 Pages 9 and 10 of the Deposition referred to at the end of Request 11, being Document 46, makes clear that libellant repeatedly stated that his back was injured and was hurting him when he left the S.S. "Colorado."

 B. Requested Conclusions of Law (above-mentioned Documents 54 and 55)

 1. Paragraphs 1 and 3-5 of Libellant's Requested Conclusions are affirmed. Paragraph 8 is affirmed, substituting for the words from "the" to "as," inclusive, the word "a."

 2. Paragraph 3 of Respondents' Requested Conclusions is affirmed and all other Requested Conclusions are denied as stated. Libellant is entitled to recover the following from Waterman: Maintenance at $8.00 per day for a net of 154 days, being 193 days from 12/5/65 to and including 6/15/65 less the above specified 39 days when he was in the hospital, or $8.00 X 154 $1232.00 Less $250. (amount received on account) 250.00 Total Maintenance $ 982.00 Transportation, Wilmington, N.C., to Philadelphia, Pa. 37.74 Wages to the end of the voyage, 12/5 to 12/8/64 49.20 Interest on $982. of maintenance for one year at 5% (see Ursich v. DaRosa, 328 F.2d 794, 798 (9th Cir. 1964)) 49.10 Interest on $86.94 for 18 months at 5% per year 6.51 Costs (see Document 51 in 39/1965 n10) Reasonable counsel fee (amount to be determined) n11 Total $1,124.55

19660601

© 1992-2004 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.