The opinion of the court was delivered by: GALSTON
This is a libel in admiralty for personal injuries allegedly sustained by Michael J. Keegan, the libellant, while employed as a seaman aboard the S. S. Charles H. Marshall. The respondent, the United States of America, owned and operated the S. S. Charles H. Marshall. The respondent, Polarus S. S. Co., operated and managed the Marshall under a general agency agreement with the United States. The libel as against the respondent, Polarus S. S. Co., was dismissed by order of this court, dated August 12, 1950.
The first cause of action alleges that on or about October 29, 1945, while the Marshall was in the Philippine Islands, libellant, acting under orders, was engaged in cement brushing a water tank, and fell and came into contact with a bolt, which resulted in serious injury to him. It is alleged that the injuries were caused solely through the failure of the respondent in failing to furnish libellant with a safe and seaworthy vessel and appliances; in failing to furnish him with a safe place to work; and in failing to furnish adequate lights. Damages in the amount of $ 10,000 are asked.
A second cause of action is alleged for maintenance and cure, in the amount of $ 5,000.
The libellant testified, at the trial, that on October 29, 1945, he was engaged in cement brushing the interior of a water tank in one of the holds of the Marshall, which was then lying at anchor in the port of Damortis, Philippine Islands. He stated that he was standing on a wooden plank ten to twelve feet long, about a foot across and one inch thick, which was being used as a scaffold and that when he was about in the center of the plank, it bent under his weight and cracked, causing him to lose his balance and fall, striking his chest against an iron bolt used to secure the radiators on the bottom of the ship. According to the libellant, he examined the planking after the alleged accident and found it old and rotted. He also testified that there were other crewmen assigned to the work of cement brushing the tank, but that at the time of the accident he was the only one working, the others having already quit for the day.
According to the libellant's testimony, the accident occurred about 5:00 o'clock in the afternoon. He stated that he didn't observe the injury immediately, but that it was only after washing up that he noticed a bruise and swelling just below the sternum, in the region of the solar plexus. He then went in search of the purser to report the accident. After two hours, not having found the purser, he reported to the chief mate.
The libellant was taken ashore on November 1, 1945 and entered the 360th Station Hospital in the Philippine Islands. Upon examination it was found that he had an epigastric hernia. An operation was performed to repair the hernia on November 2, 1945. He was discharged from the hospital on December 31, 1945, and returned to the United States on an Army vessel, arriving at San Pedro, California on January 21, 1946, and finally arrived in New York on January 29, 1946.
The ship's report of the alleged accident is in evidence. The purser of the Marshall on the date of the accident testified at the trial that he filled out the report on the basis of what Keegan had told him at the time. Paragraph 7 of the report states:
'Injury received: (a) Date 10/29/45 (b) Hour 11:00 A.M. (c) Place Damortis, Luzon (d) To whom first reported H. Cornfield, Purser. (e) When Immediately'
Paragraph 9 of the report described how the accident happened:
'While working aboard this vessel Mr. Keegan incurred a ventral hernia sometime around the 29th of October. The hernia was noticed on this date, but he does not actually know when he was hurt.'
The hospital entry card to the 313th General Hospital, signed by G. E. Hanna, Major MC, dated November 1, 1945, includes the following item:
'Hernia, epigastric, cause undetermined'
In his deposition the chief mate of the Marshall, Charles E. Temple, states that on the day before the libellant went to the hospital, he met the libellant at No. 2 hatch of the Marshall and that the libellant told him that he had fallen in No. 2 hold and hurt himself. According to the mate, the ...