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November 21, 1946


The opinion of the court was delivered by: INCH

Libellant brings this suit against the United States of America pursuant to Suits in Admiralty Act, 46 U.S.C.A. 741 et seq., and all Acts supplemental thereto and amendatory thereof.

In his libel, he states that he was a seaman (Third Army cook) employed on the S.S. Uruguay. That during the course of his employment as such seaman, he became sick and developed, acquired and sustained a tuberculosis and/or a pre-existing condition, unknown to him, was aggravated through the negligence of the respondent in failing to provide a proper, safe and seaworthy vessel; in failing to provide proper, safe and seaworthy quarters; in failing to provide a safe place in which to work and safe and competent superior officers. In his second cause of action he claims maintenance and cure.

 The respondent answered and denies these allegations as to alleged negligence and sets forth that the vessel was seaworthy, etc., and for further and separate defense alleges that libellant on May 26, 1944, executed a general release.

 The case came on for trial and libellant was a witness, as was a physician who had made a physical examination of libellant on May 27, 1946. Respondent offered in evidence depositions taken of officers of the ship, among them the chief medical officer of the ship, and witnesses in reference to the signing of the general release by libellant. Libellant also offered in evidence the deposition of a fellow employee, who was a messman. The record contains the usual hospital records, so that at the end of the trial the court had before it a complete statement of the facts surrounding libellant's claim and the defense.

 There is no need in this opinion to go into all the details, suffice it to say that libellant is a Filipino 44 years old, and has been going to sea for some seventeen years, always in the steward or kitchen department.

 The S.S. Uruguay during the period from February to October 1943, was a former passenger vessel converted into a troop ship carrying from four to five thousand soldiers. Because of war conditions, vigilance had to be strictly enforced over blackouts at night, and apparently it was at times a part of a convoy. It had experienced officers and crew, a chief medical officer, who was a graduate physician, the usual assistants and a ship's hospital.

 Libellant first signed up on this vessel on a trip which was completed at Newport News, March 25, 1943. In a few weeks thereafter, he reshipped on this vessel and after the completion of that voyage he once more reshipped. Each time, it was as Third Army cook and his work and conditions were the same. As a rule, his place of work was in front of steamers where eggs were steamed and potatoes boiled, and near a pot washer. This was in the galley and after each service of meals this galley deck was washed down and cleaned.

 There were daily inspections by the various officers of the ship, including a representative of the Army, and the chief medical officer, which inspection related also to the sleeping quarters of the crew. There has been nothing shown before me to indicate negligence on the part of the respondent in this regard, or to show that the sleeping quarters were not reasonably safe and adequate.

 Libellant was entirely familiar with all of such things and yet he repeatedly signed up and sailed with this vessel, and I find no basis for finding that his subsequent illness on the last trip can be attributed to any breach of duty on the part of those in charge of the vessel. On the contrary, it seems to me that Dr. Sewall, the chief medical officer, did all that was possible to relieve the physical condition of libellant and it was decided that, after consultation with doctors in certain ports on the trip, it was best for libellant to remain on the ship and be brought home, rather than left in a hospital in some foreign port where he would receive no better treatment than he was receiving on board the Uruguay.

 As regards the cause of action for negligence, therefore, I find no liability on the part of the respondent. The question of a release as to such cause of action is not necessary to discuss. As to the second cause of action for maintenance and cure, however, a different situation exists.

 I am satisfied from the medical testimony, which includes the testimony of libellant's own physician, who was an expert on tuberculosis, that libellant, prior to his shipping on the Uruguay on this last trip, was suffering from minimal tuberculosis and very possibly had been so suffering for some time before. This condition is an arrested type of tuberculosis, and the medical testimony, including that of Dr. Lang, libellant's witness, indicates that as tuberculosis is a germ, no one can indicate with any assurance when the germ is implanted, but as Dr. Sewall states it is most unusual for it to make its appearance as suddenly as in this case and experience is to the contrary.

 Dr. Lang testified that when he examined libellant as late as May 27, 1946, he found his physical condition fairly well-developed and well-nourished, temperature 98, pulse 78, and that the tuberculosis was apparently arrested. That he, at no time, had more than minimal tuberculosis and that the practice at the Marine Hospital was to discharge a tubercular patient only when his condition is apparently arrested. This means his sputum is negative and chances are it will remain negative and is not progressive.

 This brings us to what actually happened to libellant. In his work as Third Army cook in the galley, he caught cold and developed pleurisy. In his previous physical condition, not due to any negligence on the part of the respondent, this pleurisy made his tubercular condition more acute and no doubt he was a sick man. Dr. Sewall at once put him in the ship's hospital. He went up on deck occasionally for sunlight and fresh air, and when the vessel arrived at Hobart, Tasmania, he was taken ashore to the hospital, X-rayed and returned to the ship. It was decided by the doctors the best thing for him was to remain on the ship. The water that had collected in his lung was removed, and again, when the ship reached Australia, he was taken ashore and X-rayed. The X-ray showing no change and so it continued on the voyage.

 When possible, libellant was taken ashore and X-rayed and his condition discussed by Dr. Sewall with other doctors. At one time prior to the final stop before leaving for California, casualties had been taken aboard and Dr. Sewall then had libellant removed from the ship's hospital on B deck to a comfortable room on A deck which he usually occupied by himself. After the fluid had been taken from the lung, libellant had a slight amount of discomfort and a low grade fever. He was afforded, according to Dr. Sewall, 'all the facilities that his condition required, good food, good ...

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