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April 25, 1957

Francisco RODRIGUEZ, Libelant,
GERONTAS COMPANIA DE NAVEGACION, S.A., and THE SS GERONTAS, her engines, tackle, boilers, etc., Respondents

The opinion of the court was delivered by: DAWSON

This is an action tried by the Court without a jury. The libelant claims damages for an injury sustained by him on the SS Gerontas, a ship owned and operated by the corporate respondent, and also seeks to recover additional pay or compensation under the provisions of the Panamanian Labor Code. The libelant, who is 43 years old, was engaged at the port of Newport News, Virginia, on October 6, 1952 to serve as an assistant steward aboard the Panamanian flag steamship SS Gerontas, owned by the respondent Gerontas Compania de Navegacion, S. A. Libelant continued to serve aboard such vessel from October 6, 1952 to June 23, 1955.

The Injury to the Libelant

Some twenty years prior to his service aboard the SS Gerontas, libelant suffered an injury to his right hip in an automobile accident in Spain, the country of which he is still a citizen; as a result of this accident libelant's right hip joint became badly crippled. His right femur was thrust up into the pelvic joint with areas of destruction involving the head of the right femur and the adjacent acetabulum. The right hip joint became ankylosed or 'frozen.' This resulted in a shortening of his right leg and a lack of motion in his right hip. As a consequence libelant walked with a limp. Nevertheless, libelant succeeded in getting around and performing work without too much difficulty. During the Spanish Civil War libelant served as an infantryman for approximately eight months and thereafter for about two years as a truck driver. After the war he went to sea on various ships, serving as coal passer, fireman, able-bodied seaman and steward.

 On February 7, 1955, while libelant was engaged in the performance of his duties as assistant steward aboard the SS Gerontas, he slipped and fell in the pantry of the vessel. The fall suffered by the libelant was proximately caused by the slippery condition of the floor in the pantry. A fracture in the ship's port bulkhead permitted water to leak from the deck on to the pantry floor which thus became slippery. Libelant laid up from work for some two to four days and then resumed his duties. Libelant did not suffer any fracture or dislocation as a result of his fall on board the vessel. The medical testimony was conflicting but the Court, after hearing the testimony and examining the x-rays, concludes (1) that as a result of the accident on board the SS Gerontas libelant received contusions to his hip, (2) that these contusions loosened the fusion in the previously frozen hip joint because the fusion was fibrous instead of bony, and (3) that resulting motion in the hip joint became painful. In other words, the frozen hip became unfrozen and that which previously had been pain-free because of its frozen condition began to cause pain on motion of the hip joint.

 About four days after this accident the ship arrived at Sidney, Nova Scotia. Libelant did not secure any treatment by a physician. Although the vessel was in port for six or seven days and other crew members were sent to the doctor and means of transportation, an automobile of the vessel's agent at the port, was furnished them libelant did not obtain treatment by a doctor. There is a sharp dispute in the testimony as to whether Rodriguez requested treatment. In any event libelant continued on the vessel and performed his duties.

 Thereafter, and after a stay of several hours at Halifax, the vessel proceeded to Mazatlan, Mexico. There the libelant daily visited a doctor during the vessel's ten-day stay, but received treatment not for his leg but for a stomach condition of which he complained. There is no indication that if he had sought treatment for his leg Rodriguez would have been unable to receive it. After leaving Mazatlan the vessel proceeded to San Pedro, California. At this port, at libelant's request, he was seen by a doctor who came aboard for the purpose of examining another crew member who was ill. This doctor furnished some medication and advised libelant that he was probably suffering from an arthritic condition of his hip and suggested x-rays at Vancouver, the next port of call. On the vessel's arrival at Vancouver, libelant was examined by a doctor. The doctor told libelant that a proper cure would require a considerable period of hospitalization for an operation. The master of the vessel advised libelant that if he wished to stay at Vancouver he could do so and that the master would discharge him so that he could have the operation in Vancouver, or get any other treatment he desired. Libelant, however, informed the master that he was able to perform his duties and would prefer to remain with the vessel until it returned to New York so that he could get treatment there. Libelant then remained on the vessel and continued to perform his duties until the arrival of the vessel in New York on June 23, 1955.

 On June 28, 1955 libelant was admitted to the Westchester Square Hospital where he remained a patient until July 14, 1955, when he was discharged. X-rays were taken at the hospital and the libelant received physiotherapy treatments. As of July 1, 1955 the hospital physician stated that although pain might continue the libelant would be able to do his former work. Libelant did not return to sea or make any immediate attempt to get employment. Instead he went to work at a hotel on November 19, 1955 and worked there steadily since that date, working ten hours a day, with the exception of approximately two weeks in May, 1956 when he was hospitalized in St. Vincent's Hospital for treatment to his eyes. Libelant obtained no further treatment for his right hip after discharge from the Westchester Square Hospital although he has been a charity patient in St. Vincent's Hospital for treatment for his eyes not only in May 1956 but also for a period of six weeks in September and October 1955. Libelant's work at the hotel is light in nature being essentially that of a doorman, desk clerk and night watchman. For this work he receives a room of the reasonable value of $ 10.50 per week and approximately $ 24.50 per week in addition.

 Libelant now walks with a noticeable limp and contends that his hip is painful to him, and that he cannot return to duties at sea. His right leg has a marked shortening. This shortening, however, does not appear to have been the result of any physical injury to the skeletal structure of the leg but rather is a functional shortening which results from the way in which the leg is held, which in turn results from the pain of the partly unfrozen hip joint.

 The Court is convinced that the present derangement of Rodriguez' hip is only partly the responsibility of the ship. As a result of the unseaworthy condition of the pantry, libelant fell and aggravated a previous injury. Respondent, consequently, is liable for this aggravation. That this has resulted in a painful condition of the leg seems to be without dispute. However, it was not so painful as to prevent libelant from performing his duties in the hotel by which he has been employed for many months. A complete revision of the hip might be effected by an expensive and protracted operation. Libelant has shown no desire or willingness to undergo such an operation, nor has he made any demand upon respondent to have such an operation.

 Libelant's Claim for Personal Injury

 The Labor Code of Panama, which is applicable to a consideration of the rights and remedies of libelant, provides that a worker may recover compensation for any 'working accident' which is defined as 'every bodily injury which the worker may suffer on occasion of or as a consequence of the work he carried out. * * *' Art. 208. These Code provisions are essentially similar to a workmen's compensation law. They give the worker an absolute right of recovery, irrespective of negligence, but at the same time fix the amount of the recovery.

 Article 210 of the Labor Code provides that where the consequences of the accident are aggravated by an illness or injury which the worker may have had prior to the accident, 'such aggravation shall be considered, for the effects of the indemnity, as a direct result of the professional risk that has occurred and an indirect result of the illness or injury.'

 Indemnity is provided by the provisions of the Labor Code. The worker is entitled to indemnity for a working accident equal to his salary for the first two months of his 'disability' plus a sum equal to 50% of his salary for the following ten months 'if the injured party should continue disabled for all this time. * * *' Art. 218. In the case of partial permanent disability the worker is entitled to an income for three years fixed on the basis of his annual salary but determined according to the percentages of disability as provided under Article 222 of the Labor Code. Art. 218.

 Libelant's salary at the latter part of his service was $ *30 a month. He also received his room and board on the ship which, under the provisions of 183 of the Labor Code, must be valued at 50% of the salary which the worker was receiving in cash. Therefore the salary of libelant must be computed on the basis of $ *45 a month. It was stipulated that the Court should accept the valuation of.$ 2.80 for the pound. Therefore the salary of libelant was at the rate of $ 126.00 a month, or, on the basis of a 30-day month, at the rate of $ 4.20 per day.

 Libelant's period of total disability was from June 23, 1955 (the date of his discharge from the vessel) to July 14, 1955 (when he was discharged from the Westchester Square Hospital as able to return to work). This constituted 20 days of total disability for which he is entitled to $ 84.

 In addition libelant has had a permanent partial disability which his physician estimated at 80% of the use of his leg. Under Article 222 of the Labor Code the total loss of use of the leg would entitle the worker to an amount equal to 75% of his salary for three years, but this sum is to be reduced by the percentage of disability. Therefore libelant would be entitled to 80% of 75% of his salary for up to three years. This amounts to $ 75 a month for the period from July 14, 1955 to the date of trial, or twenty months, which equals $ 1,500. Or, if we consider that the permanent partial disability will continue, libelant is ...

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