The opinion of the court was delivered by: CONGER
Action by libellant against respondents as owners and operators of the Steamship 'Francis Parkman.'
Libellant seeks to recover damages for personal injuries sustained on March 6, 1944, while he was employed on the steamship 'Francis Parkman' as an able-bodied seaman. He also asks for maintenance and cure.
The amended libel herein pleads as a first cause of action negligence and unseaworthiness of apparel (first count) and maintenance and cure (second count).
The answer of respondents denies negligence and unseaworthiness and denies that libellant is entitled to maintenance and cure.
There are further set forth in the answer various separate and complete defenses which need not be mentioned except one: Respondents plead and contend that some time after the accident and before the commencement of this action, libellant for a valuable consideration and by an instrument in writing released respondents and the vessel from all liability as to the matters alleged in the libel.
On March 6, 1944, the S.S. 'Francis Parkman' was at Majuro, one of the atolls in the Marshall Islands. Cargo was being discharged from the vessel. There had been considerable bombing by the Japs in the area on various atolls, and the Captain of the steamship, being a bit nervous, was having fire and boat drills. At about 10:30 of the day in question, the Master called a boat drill. When it was sounded libellant picked up a life belt and went to his station at No. 3 boat on the starboard aft of the boat deck. Cargo was being discharged on the port side and the vessel had a list to port.
In the meantime, a small boat had been lowered to the water. It happened to be boat No. 3. The Master ordered No. 3 boat crew to get in the boat and take it away. The men left the ship by a debarkation net which was thrown over the side of the ship into the water. This net was about 30 feet long and about 20 feet wide and was made out of rope into a latticed network of squares. The squares were approximately 2 1/2 inches to 3 inches. Libellant started over the side of the ship. He got on the net and started to descend; he was going down pretty rapidly. When he got down to about 6 to 8 feet he slipped or fell a distance of about 24 feet into the life boat. As a result of the fall, libellant suffered a fracture of the oscalsis bone of the left foot.
After the accident, libellant was taken into a U.S. Navy repair ship where he spent the night. The next day he was transferred to a United States Naval Hospital ship. A cast was put on his foot on March 14. X-rays were also taken at that time. Libellant was then transferred to a Navy aircraft carrier and after 8 days arrived in Honolulu (March 22, 1944). He remained in Honolulu from March 22 to April 4 and while there he stayed at the Seamen's Institute. On March 29 he was examined at Honolulu by the United States Public Health Service which gave him a certificate to the effect that he was not fit for sea duties, and that he had a fracture of the left heel and was fit to travel to the mainland.
On or about April 4, Libellant's passage to San Francisco was arranged for by respondent's agents. He arrived in San Francisco about April 11. During his stay in San Francisco libellant lived at his sister's home. On or about April 20, libellant went to the office of respondents' steamship company where he made a statement concerning the details of his accident and resultant injuries and later after some negotiations on April 28 signed a release of all his claims for the sum of $ 1,090.69, which said sum was given by way of a check.
At San Francisco, from April 25 to June 16, libellant received some out-patient treatments at the United States Marine Hospital. Sometime between April 20 and April 28, libellant was examined by respondent's doctor.
The cast was removed from libellant's foot on May 25.
On June 16 the physician at the Marine Hospital certified that libellant was able to travel to New York. Libellant arrived in New York about July 1.
Libellant received out-patient treatments at the United States Marine Hospital at Stapleton, Long Island, from July 1, 1944, to February 1, 1945. In all he made five visits to the hospital on the following dates: July 1, July 3, August 4, August 16, 1944, and February 1, 1945.
The records of the Marine Hospital show that on August 16 libellant was fit for duty and that no further treatment was indicated.
Libellant went back to sea sometime in September, 1944, and remained going to sea about 15 months. At the time of the trial he was working as a bridge maintenance man nad bridge structural painter.
Libellant still complains of pain in his heel and says he cannot walk without an arch-support in his shoe.
It appears from the medical testimony that libellant has some permanent disability as the result of his accident which has been estimated at a 10% disability of the left foot. This, however, appears not to be disabling.
The first question to take up is that of the release.
The leading case on the subject is Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S. Ct. 246, 87 L. Ed. 239 wherein the Court stated:
' * * * that the burden is upon one who sets up a seaman's release to show that it was executed freely, without deception or coercion, and that it was made by the seaman with full understanding of his rights. The adequacy of the consideration and the nature of the medical and legal advice available to the seaman at the time of signing the release are ...