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January 4, 1957

Bernardino BARROS, Jr., Libelant,
UNITED STATES of America, Respondent

The opinion of the court was delivered by: BYERS

This libelant's cause is that the loss of sight in his right eye resulting from atrophy of the optic nerve, as manifested probably on July 10, 1945 in connection with an acute and painful swelling on the right side of his face, was the result of a fall to the deck of a ship on which he was working, on the preceding April 11th. The immediate result of that fall was a small laceration just above and to the right of the right eye, which was promptly treated. The wound was washed with alcohol, and sulfanilimide was applied, and a bandage (band-aid?) was affixed. Seemingly no later evidence of a local condition was reported by the patient or observed, but five days later he complained of headaches.

The libelant was a wiper in the engineroom crew of the S.S. Frank P. Walsh, and signed on that ship March 31, 1945. The voyage started at Halifax on April 5, 1945 when the Walsh joined a convoy bound for Cardiff and other ports in Europe. She carried bombs and was engaged in wartime service. The subsequent dates of consequence are: 1945 April 20 Arrived at Cardiff. April 30 Left for Plymouth. May 1 Arrived off Bayeux. May 11 Libelant reported to Dental Clinic, U.S. Army LeHavre. Treated for gum boils upper left and severe pain; diagnosis, abscessed teeth. Treatment: Ice bag applied to face, and given sulfathiazole and soda. May 17 Nothing found wrong except a mild case of trench mouth for which treatment was given. "Patient was sent to 346th Med. Comp." As to the incidents of his stay in Havre, the deposition of the purser-pharmacist Thompson offered by both libelant and respondent, contains the following: "* * * I took all the men over to the Army hospital * * * and there the men were treated by Army dentists and physicians. I recall * * * Barros, having some extractions and I also recall he had something the matter with his mouth * * * I believe it was diagnosed as trench mouth." May 22 Arrived at Southampton. about (Libelant asked for no medical attention in that part.) June 12 Arrived in New York, and libelant was paid off. June 29 Signed on as wiper on S.S. Cyrus H. K. Curtis American Export Lines, after taking medical examination for physical fitness. As to incident of this service, see below. July 2 Reported to Marine Hospital, Hudson & Jay Sts.; complained of "pain in the face." He there had a tooth extracted, and the diagnosis was: "No sign of infection from extraction at this time. Complaints: Cavernous sinus thrombosis following extraction." July 5 Reported to Cumberland Hospital. There seems to be no hospital record, but the assumption is that he was at once sent to the Kings County Hospital. July 5 to Received at Kings County Hospital, and continued as inpatient Aug. 7. until discharged on latter date. On admission the diagnosis was: "Facial cellulitis -- Associated Diseases: Orbital abscess." The pain and swelling was on the right side of the face. It should be said in parenthesis that the testimony of the libelant is so confusing and uninforming, due to his inability to understand and speak English (and the incapacity of one who was called to act as interpreter from Portugese into English), that his narrative does not rise to the level of testimony, either as to his accident or physical condition. What is herein related is gathered from what other witnesses deposed. The fact that there was one or more tooth extractions in Havre is thus accepted for present purposes.

 Without quoting the Kings County Hospital record in detail, it will suffice to say that the swelling and accompanying pain became increasingly acute, and the patient received constant care and professional attention because the inflammatory developments were so severe that his eye son protruded and pus was discharged in considerable volume; the condition created such pressure that a complete atrophy of the optic nerve of the right eye resulted, so that he lost the sight in that eye; hence this cause, on the theory that the unfortunate outcome of his hospitalization was primarily due to the injury that he suffered on April 11th when he fell to the deck of the Walsh as above set forth.

 The original libel was filed April 30, 1951 and the amended libel October 29 of the same year, and in the latter, two causes are pleaded, namely, negligence, in that 'the libelant was ordered and directed to perform duties on an open deck during rough seas, thus unduly exposing him to danger, and the respondent was further at fault in that * * * having ordered him to work on the open deck, * * * failed to make proper observation as to the wind, weather and seas, and maneuver the vessel to afford libelant some protection from the rough seas, and * * * in failing to provide any or sufficient life lines, safeguards or other safety measures * * * which resulted in the libelant's being thrown about with force and violence and suffering the injuries complained of.'

 The second cause is for maintenance and cure.

 As to the first, there is no testimony whatever to sustain the cause.

 This ship was a member of a convoy which means that it was navigated in obedience to the directions of a commanding officer. It is true that on April 11th the ship had run into extremely rough weather, almost of hurricane force, and at times the waves were higher than the ship itself. The libelant is said to have lost his balance and struck his head while on the deck, pursuant to an order of a superior requiring him either to procure or retrieve certain tools needed by the engineer force in connection with the maintenance of the engines. There is no testimony on the subject of life lines.

 The libelant cites several cases involving injuries suffered during rough seas, all of which have been examined; they are to the effect that whether under given circumstance an injured member of a crew was ordered to perform a hazardous task because of the neglect or ignorance of one of the ship's officers, is a question of fact under all the circumstances of a given case, which is the principle that will govern this decision.

 One of the cited cases is Matson Nav. Co. v. Hansen, 9 Cir., 132 F.2d 487, 488, where the injured man was caused to walk across exposed steel beams which were loaded on deck, and which were so disposed that he was caused to perform his duty in an unsafe place to work.

 The District Court had found in favor of the libelant on that theory, and in affirming, the Court wrote in part:

 'No liability flows from requiring a sailor to perform his necessary sailor's duties with the ship rolling and lurching in a heavy storm, even though he may be injured from a fall caused by a wave sweeping across the deck. Yet the owner would be liable if, instead of performing some necessary duty, he were injured when sent by the mate across the same wave swept deck to rescue the ship's cat. The test is whether the requirement of the sailor is one which a reasonably prudent superior would order under the circumstances.'

 Having in mind the necessary restrictions under which this vessel was navigated as a member of a convoy, there is nothing disclosed in the testimony offered for the libelant, which would justify a finding that his injury was the result of negligence on the part of the ship; surely there was no requirement that it should move out of formation and heave to, to enable this libelant to fetch some tools from wherever they were, under the most favorable possible conditions of wind and sea.

 The finding of fact is that the first cause as pleaded, is not supported by evidence.

 The case for maintenance and cure confronts the court with the uncongenial task of selecting which of two medical theories should be accepted as to the primary cause of the libelant's said loss of vision.

 The libelant's professional witnesses were:

 Dr. C. R. Franklin, whose qualifications in the field of ophthalmology are stated in full in the record. He first examined the libelant in October of 1947, over two years after the ...

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