The opinion of the court was delivered by: GALSTON
This is a libel in admiralty for maintenance and cure. Following the trial of the action I rendered an opinion, dated May 28, 1953, concluding that the libel should be dismissed for lack of jurisdiction, because of the absence of proof that libellant had complied with the statutory requirement of filing a notice of claim with the proper governmental agency before bringing an action. Danstrup v. Richmond P. Hobson & United States, D.C., 112 F.Supp. 851. Subsequently, upon an application by the libellant I granted an order, dated July 2, 1953, reopening the trial, 'so that libellant may offer proof as to his filing the notice of claim with the respondent and other parties and complying with all statutes and regulations in regard to said filing.'
The evidence presented at the reopening of the trial supplied the necessary proof of compliance with the statutory requirement, and the regulations promulgated pursuant thereto. The respondent does not now contend otherwise.
With respect to the merits, the claim for maintenance and cure is based upon an alleged injury suffered by the libellant on or about October 9, 1944, at Leghorn, Italy. At the time he was serving as chief engineer aboard the S.S. Richmond P. Hobson, a vessel operated by the Isbrandtsen Steamship Company as general agent for the United States.
While he and another man were pulling on a five ton chain fall in an effort to free the frozen shaft on the turning engine, his foot slipped on some oil on the grating, and he, so he said, 'came down with all my weight hanging to that chain hoist, and I felt something give right across the stomach on the left side and the groin, and around my back on the left side.' He stated that it was not very painful at the time and he continued working. About 9:00 o'clock that night the pain became severe and continued during the night. The following morning he was taken to the U.S. Army Hospital at Leghorn. The remained in the hospital for ten to twelve days. His condition, according to the hospital record, was diagnosed as 'cardiac arryhymia (arrythmia); auricular fibrillation. C.U.'
He went aboard the Hobson again, and returned to the United States with the ship in November, 1944. He was paid off in Norfolk, Virginia. The returned to New York City, and on December 6, 1944 he entered the U.S. Marine Hospital, Staten Island. At the time of his admission, libellant stated he was bothered by tenderness in the lower left quadrant and weakness in the lower abdomen. X-ray examinations were taken of the kidneys on December 11, 1944. They revealed a double ureter on the left kidney, but no other abnormalities. The diagnosis was arteriosclerotic heart disease with auricular fibrillation. Digitalis brought about marked improvement, and libellant was discharged on December 21, 1944, condition improved, with a recommendation that he take one month's convalescence leave.
In January, 1945, he returned to work for Isbrandtsen as port engineer, and then in February he signed on as chief engineer of the S.S. 'W. P. Few', another Liberty ship operated by Isbrandtsen as general agent for the United States.
Libellant was given a physical examination when signing on for both the Hobson and the Few. The report, prior to the Hobson voyage, of the examining doctor notes 'frequent extra systoles' of the heart. Libellant was found fit for sea duty on both occasions. He served aboard the Few until it was retired from service on or about April 6, 1946, a period of about 14 months, during which the ship made a trip to Europe and returned by way of the Pacific.
It was during this trip on the Few that libellant first noticed swelling of his lower extremities and abdominal cavities. He testified that his body tissues filled up with fluid about four months after he started work on the Few. He did not ask for medical attention, but continued to perform his duties until the end of the voyage. Following his discharge from the Few in April, 1946, libellant consulted his own doctor for treatment. He received injections of mercupurin to relieve the swelling, and digitalis. There is in evidence a document entitled 'Full Release of all Claims', dated July 29, 1946, and signed by libellant, stating that, in consideration of the payment of $ 578.50 to him, the seaman released the
'United States of America, War Shipping Administration, Isbrandtsen Company, and particularly the 'W. P. Few' * * * from all * * * claims and demands * * * for all losses, injuries or damages arising out of or connected with an injury received by me on the Steamship 'W. P. Few' on or about the tenth day of October 1944 at Leghorn, Italy, including wages, maintenance and cure.'
It was not explained during the trial why this 'release' refers to the Few with respect to an accident occurring in October, 1944, when libellant admittedly was serving aboard the Hobson.
In August, 1946, he applied for another berth, but was rejected as medically unfit. On October 16, 1946, he was admitted to the United States Marine Hospital, Staten Island. The Discharge Summary, signed by Dr. C. Boswell, part of the hospital records, states the following:
'This 61 year old merchant seaman was admitted to the hospital on October 16, 1946, with chief complaint of swelling of his abdomen, ankles and genitalia. His present illness began two weeks prior to admission. However, the patient has a long history of cardiac decomposition associated with hepatic cirrhosis. He has been taking digitalis for five or six years.
'Extensive laboratory work-up was done which confirmed the diagnosis of hepatic insufficiency, auricular fibrillation, arterio-sclerotic coronary disease and persistent ascites. No significant pathology was found in the G.I. tract and the kidneys were found to be of fair function.'
Libellant was discharged on February 7, 1947, with instructions to continue digitalis, ammonium chloride and caffeine medications and to return to the hospital for periodic injections of mercupurin. The diagnosis was hepatic cirrhosis and arterio-sclerotic heart disease.
He visited the Marine Hospital as an out-patient two to three times weekly until April 1, 1947. On April 1st he was again admitted to the Marine Hospital complaining of increasing swelling of the lower extremities and abdomen, as well as exertional dyspnea (labored difficult breathing). The 'source' of admission is stated on the hospital records as the W. P. Few, as it was on the October 1946 admission. An inter-departmental memorandum of the Marine Hospital, dated April 14, 1947, requested consultation to see what the libellant could be offered in the way of operative procedure for the alleviation of his ascites. The left kidney was removed on May 14, 1947, and the ureter on the left side was anastomosed to the peritoneal cavity for aid in draining off the ascitic fluid.
A letter signed by Dr. Charles Ferguson, Senior Surgeon, USPHS., Chief of Urological Service, dated December 5, 1947, was put in evidence by libellant. It reads in part as follows:
'The above named (Hans Danstrup) was admitted to the U.S. Marine Hospital, Staten Island, New York, with the chief complaint of swelling of his abdomen, ankles and genitalia. He has a history of cardiac decompensation associated with hepatic cirrhosis. He stated that he has been taking digitalis for five or six years.
'Examination at this hospital confirmed the diagnoses of hepatic insufficiency, auricular fibrillation, arteriosclerotic coronary disease and persistent ascites. There was fair function of the kidneys.
'The recurring ascites disappeared when he received a surgical operation for its relief on May 14, 1947. * * * There was considerable scar formation about the left kidney. The cause of the scar formation is not apparent at the present time. It apparently is the result of an alleged contusion of this side ...