The opinion of the court was delivered by: BYERS
In this cause concededly only for maintenance and cure, the libel was filed November 14, 1949 in the Southern District and was transferred to this court on consent, April 11, 1950.
Trial proceeded on May 17, 1955 in the absence of libellant after his proctor had been admonished on several occasions to produce his client or take his testimony under deposition, because of the long time that the cause had been pending. Neither suggestion was adopted.
The libellant resides in Amityville, Long Island, and had been present in court at the March Term when its cause was not tried.
The respondent offered in evidence the deposition of the libellant which had been taken on February 26, 1954 pursuant to Admiralty Rule 32 of this court, which was received. It is entirely illuminating concerning his history and activities during all times material to the cause. Since his proctor has filed no brief in answer to that of the respondents served upon him on June 6th, there can be no reasonable doubt that the facts upon which libellant relies have been fully laid bare in the record so made, together with the other exhibits, namely:
Exhibit B -- Respondents' interrogatories and libellant's answers made in response thereto.
Exhibit C -- Maritime Administration medical records relating to the libellant and covering the period November 18, 1943 to May 19, 1944, together with an X-ray taken of libellant's chest on May 10, 1944, and the X-ray report made the same day.
Exhibit D -- Libellant's Coast Guard Employment Record from February 17, 1940 to March 15, 1944.
Exhibit E -- United States Coast Guard record relating to the hearing held on May 19, 1944, which resulted in suspension of the libellant's license by reason of his physical incompetence to go to sea.
Hospital records were also produced under subpoena and examined in the formulation of this decision.
Based upon the foregoing, the follow are the
1. On or about January 10, 1944 the libellant was temporary Chief Mate on the S./S. Elihu Root owned and operated by the United States, for which Agwilines, Inc. managed the ship under general agency agreement with the War Shipping Administration.
2. On or about that date the libellant was taken ill, while the ship was in Halifax, N.S. He was examined by a physician who advised that his condition was tubercular, i.e., there was an infiltration of the upper left lung. The physician recommended that he be returned to the United States for treatment. The captain of the ship refused to permit the libellant to be detached, but insisted that he remain with the ship.
3. The tubercular condition so revealed was the recurrence of an earlier manifestation of which the libellant was first aware in March of 1942, and for the treatment of which he had undergone hospitalization and treatment until April of ...