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May 27, 1954


The opinion of the court was delivered by: BRUCHHAUSEN

The libelant, William F. Bradt, seeks to recover damages against the respondent, United States of America, both under the Jones Act, 46 U.S.C.A. § 688, and the general maritime law for unseaworthiness of the vessel, Pittston Victory, and for maintenance and cure. Libelant had been employed as an assistant engineer on the vessel from March 1945 to April 1946. He claims that he was burned and scalded during the performance of a hydrostatic test in the engine room of the vessel and also contracted tuberculosis, due to the alleged unseaworthiness of the ship. The respondent, Cardinal Engine & Boiler Works, Inc., conducted the hydrostatic test and was impleaded as a party in this proceeding.

It seems appropriate to first consider the libelant's claim for injuries in connection with the hydrostatic test. It appears that on February 4, 1946, the chief engineer of the Pittston Victory requested the libelant to observe some tests being made by the impleaded respondent, Cardinal Engine Company. The said impleaded respondent was then in the process of completing repair work on a condenser on the vessel. A tarpaulin was placed on the motor near the condenser to protect it from any water which might come from that part of the condenser which was left open so that the test might properly be observed. The libelant went below and entered the testing area. Upon his entrance, he then, without a word or question addressed to the men in charge of the test, walked over to the tarpaulin, bent down, and ripped it off. At that precise moment, he was scalded by steam and hot water which appears to have gushed forth from the opening, meant to aid observation.

 The testimony reveals that he knew scarcely anything about the procedures used in these tests. He knew that either hot or cold water could be used in them, yet he knew nothing of the procedures in this one. He was conscious that there was a good purpose for the placing of the tarpaulin. It appears to have been there to keep just such escaping water from the adjacent motors. Upon ripping off the tarpaulin, the libelant placed himself in the exact area to be protected from this specific occurrence viz.: water escaping from the opening deliberately left that way for the observation of the test, and falling upon the adjacent area occupied by Bradt.

 There is no evidence that the test was improperly or uncustomarily rigged so as to constitute a hazard for even the untutored who might come upon the scene, much less a maritime engineer placing himself in a hazardous position.

 There is no negligence on the part of the impleaded respondent, Cardinal Engine Company or of the respondent, United States. The accident was caused solely by the negligent acts and unwarranted interference of the libelant.

 In connection with the libelant's cause of action for damages for contracting tuberculosis, the respondents contend that it is untimely because the libel was filed on April 10, 1948, allegedly more than two years after the cause of action arose. The Suits in Admiralty Act, § 5, 46 U.S.C.A. § 745, prescribes a two year limitation for such actions.

 The respondents contend that the cause of action must have arisen earlier than April 11, 1946, for the reason that some of the symptoms such as jumpiness, colds, tiredness, nervousness, coughing, weight loss and sweating all were manifest to the libelant before he had specific knowledge that it was tuberculosis, thus putting him on notice as to an invasion of his legal rights. Thus, it is argued, since all of those symptoms were manifest prior to April 11, 1946, his action must be deemed barred. Such reasoning is clearly contrary to judicial precedent.

 The case of Urie v. Thompson, 337 U.S. 163, 69 S. Ct. 1018, 93 L. Ed. 1282, is the genesis of all cases dealing with this problem. An analysis thereof brings the problem into proper perspective. In that case, the plaintiff, a locomotive fireman, contracted silicosis as a result of inhaling silica dust. It was alleged that since he had inhaled silica dust since 1910, his cause of action must have accrued prior to 1938, thus barring his suit, begun in 1941, since it was in excess of the three year statute of limitations under the Federal Employers' Liability Act, 45 U.S.C.A. § 56. The Court in that case wrote, 337 U.S. at page 169, 69 S. Ct. at page 1024, 93 L. Ed. 1282:

'* * * such mechanical analysis of the 'accrual' of petitioner's injury -- whether breath by breath, or at one unrecorded moment in the progress of the disease -- can only serve to thwart the congressional purpose.
'If Urie were held barred from prosecuting this action because he must be said, as a matter of law, to have contracted silicosis prior to November 25, 1938, it would be clear that the federal legislation afforded Urie only a delusive remedy. It would mean that at some past moment in time, unknown and inherently unknowable even in retrospect, Urie was charged with knowledge of the slow and tragic disintegration of his lungs; under this view Urie's failure to diagnose within the applicable statute of limitations a disease whose symptoms had not yet obtruded on his consciousness would constitute waiver of his right to compensation at the ultimate day of discovery and disability.'

 The Court in that case, continuing, 337 U.S. at page 170, 69 S. Ct. at page 1025, wrote:

'We do not think the humane legislative plan intended such consequences to attach to blameless ignorance. Nor do we think those consequences can be reconciled with the traditional purposes of statutes of limitations, which conventionally require the assertion of claims within a specified period of time after notice of the invasion of legal rights. The record before us is clear that Urie became too ill to work in May of 1940 and that diagnosis of his condition was accomplished in the following weeks. There is no suggestion that Uire should have known he had silicosis at any earlier date. 'It follows that no specific date of contact with the substance can be charged with being the date of injury, inasmuch as the injurious consequences of the exposure are the product of a period of time rather that a point of time; consequently the afflicted employee can be held to be 'injured' only when the accumulated effects of the deleterious substance manifest themselves * * *.' Associated Indemnity Corp. v. Industrial Accident Commission, 124 Cal.App. 378, 381, 12 P.2d 1075, 1076.'

 The respondents attempt to distinguish the case of Urie v. Thompson, supra, on the restricted ground that the nature of silicosis was unknown and inherently unknowable and that its symptoms had not yet obtruded on the plaintiff's consciousness. It is argued that the symptoms of tuberculosis were not as deceptively hidden as those of silicosis, but rather had obtruded upon the consciousness of the libelant, and had given him notice of the invasion of his legal rights. An analysis of this contention in the light of the guideposts in Urie v. Thompson will reveal how each case must stand on its own facts.

 Just as the Court rejected the 'breath by breath' theory in silicosis cases, this Court must reject the 'symptom by symptom' theory advanced herein. Each symptom by itself is nothing but a stepping-stone in the direction of the true manifestation of the ultimate disease. It is true that the whispered warnings of approaching tuberculosis are more audible than the silent disintegration resulting from silicosis. But they, too, are the result of a condition over a period of time, rather than a point of time. It is not the symptom qua symptom that is the test. It is the symptom qua notice of the ultimate right, or notice of the duty to understand the composite maturity or ripening of the claim. It is not causes of action for the colds, coughing jumpiness, nerves, etc., which is the test. The test is when the claimant is no longer blamelessly ignorant of the fact that the occurrences obtruding on his consciousness are those of the particular cause of action, of the disease contracted, for which he seeks indemnity. The test is not the appearance of each subjective symptom or even a group of symptoms which may warn the tutored that tuberculosis may be ...

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