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CRUZ v. HARKNA

May 7, 1954

CRUZ
v.
HARKNA et al. THE MERIDA



The opinion of the court was delivered by: CONGER

In this case I decided that the libellant could not recover under the Jones Act, 46 U.S.C.A. § 688, but I would accept jurisdiction under the General Maritime Law and that recovery could only be under the Honduran law (see opinion rendered in open court on February 24, 1954). Since then libellant has proven the Honduran law.

Normally, I believe the procedure would be to send libellant back to Honduras to present his claim but it appears that libellant was never a resident of Honduras and the statute of limitation has run against his claim in Honduras. It further appears that libellant is soon to be deported to Portugal.

In all equity it would seem to me that this Court should grant libellant whatever relief he is entitled to under the facts.

 The applicable Honduran law (Chapter XI of Decree 55) is in essence a compensation act. The amount of recovery for various injuries and illnesses is fixed.

 Chapter XI is entitled 'Compensation for Maritime Labor Accidents.' Article 33 of Chapter XI provides that Article 34-53 are applicable to all 'sickness or labor accidents suffered by the officer and member of the crew * * *.'

 Article 34 provides that officers and members of the crew who 'should become sick on board in the service of the vessel or who should suffer any injury or temporary or permanent incapacity caused by a maritime labor accident should have the right to receive from his employer the compensation established by law.'

 Section 35 defines a maritime labor accident 'as any injury or body infection that the victim may suffer in the course or as a direct consequence of the work that he renders in the service or benefit of the vessel * * *.'

 I gather from the above that compensation is allowed a seaman who is taken ill while on the vessel (this parallels what we call maintenance and cure) or who suffers injury, wounds or body infection while on board. In neither case is negligence a factor.

 Then follow Articles 36-40 inclusive, which define various types of injuries and incapacities which we are not particularly concerned with.

 As I understand it, libellant claims total incapacity under Article 41 which provides incapacity as follows: 'In all other cases the degree or class of incapacity suffered which may not be specified in Articles 38, 39, 40 shall be determined according to special circumstances of each case.'

 Article 42 provides for specified compensation to a member of the crew who shall become sick on board the vessel during the period of his contract.

 Article 43 provides payment of certain expenses incurred by a member of the crew who may be a victim of a maritime labor accident.

 Article 44 provides for specific payments of compensation to a member of the crew who suffered incapacity by reason of a maritime labor accident.

 Libellant also claims that he is entitled to the benefits provided for by Article 42 (maintenance and cure).

 Libellant, a member of the crew of the S. S. Merida, claims to have been injured on board the vessel on September 9, 1949; that while he was working in the engine room he was struck in the chest by a spare part of the propeller shaft which had been bolted to a wooden bulkhead and had broken loose. Libellant claims that this occurrence, coupled with the unseaworthy condition of the vessel including wet, damp and unhealthy living quarters along with the failure of the vessel to furnish him with adequate, prompt medical care and attention on board the vessel and subsequent thereto were the producing causes of a hernia and a chest or lung condition which he claims he suffered and from which he states he is still suffering. Libellant claims that within two days after the accident he had a fever and a cough; that he was unable to work but that the captain or the chief engineer ordered him to do so.

 I am not convinced that libellant was laid up to any great extent after the alleged accident. My recollection is that he was sick for some cause which I am unable to determine from the testimony for about 6 1/2 days from on or about September 2, 1949 to September 8, 1949. It also appears from libellant's overtime record that from September 9, 1949 to November 8, 1949 he did some overtime work.

 As to the hernia, libellant has failed to prove to me that the hernia was caused by the accident. My notes fail to indicate that ...


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