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
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.
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)