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May 9, 1958

Hubert N. SELBY, Jr., Libelant,
UNITED STATES of America, Respondent

The opinion of the court was delivered by: BYERS

This libelant seeks a decree to recover damages in a Jones Act case, 46 U.S.C.A. § 688, because, as he alleges, of having been 'exposed to contagion and illness' while serving as an oiler on the S. S. Rockland Victory (to be called Rockland) owned, managed, operated and controlled by the respondent.

It is understood from the libel, the testimony, and the briefs, that reliance is had upon the theory that libelant became tubercular on a voyage of the said ship which started in February, 1946, because of the negligence of the respondent in providing him with an unsafe place in which to work, and because the ship was unseaworthy as operated and maintained, for the transportation of horses and mules.

 The libelant does not rely upon aggravation of an existing tubercular condition, either active or not, (as in Hiltz v. Atlantic, etc., 3 Cir., 151 F.2d 159) but upon the creation of conditions arising from the lack of care of the animals constituting the cargo, which had the effect of imparting vitality to what would otherwise have been only the mere dormant germs of the disease. The customary presence of such in persons of normal health is said to be a recognized condition.

 If the Hiltz case and Hern v. Moran, 2 Cir., 138 F.2d 909 are understood, there is no difference between the duty of the ship towards its crew as to the aggravation of an existing condition on the one hand, and the causing to arise as a new thing a physical disability, on the other hand. The practical distinction goes merely to the award of damages.

 Also there is a manifest difference concerning the proof which a given libelant undertakes to demonstrate, depending upon which of the two theories he elects to stand.

 As the result of litigation against the owner of another ship upon which the libelant sailed at a later date, the second cause pleaded in this libel for maintenance and cure was withdrawn. (See Minutes 10/31/56, p. 21:

 '* * * There was a full accord and satisfaction. We are making no claim in this case for any maintenance * * * I am making no claim here for maintenance.')

 A continuance was had on that occasion, and final hearing was not possible because of intervening engagements of counsel, and inability of the court so to manipulate its calendar, until March 12, 1958.

 The relevant facts may be thus summarized:

 The libelant was born July 23, 1928, and therefore was eighteen years of age when he signed on as an oiler on the Rockland in January of 1946, at the port of New York for the voyage to begin at Houston, Texas, for the carriage of a cargo of horses. Prior to signing on, he underwent a physical examination (Dr. Dugdale) and he said that although no x-rays were taken at that time, there had been on prior occasions, of his chest, heart and lungs, with no abnormalities disclosed. His height was about six feet, and he weighted 170 pounds.

 During the year or so prior to this voyage, he had worked on harbor vessels, dredges, etc. and was aware of no difficulty in performing the incidental tasks of his occupation; he had suffered from ordinary colds which he said lasted for two weeks or so, from which he had no difficulty in making recovery.

 His base pay as an oiler on the Rockland was $ 177.50 per month, which was increased to average about $ 250 a month by reason of overtime; his duties were those to be expected, such as lifting a twenty pound plate from a tank, helping to clean out oil tanks, taking clearance on the main bearings which involved removing the cylinder heads, etc.; he worked five 8-hour days per week, and his sleeping and appetite were normal.

 The Rockland proceeded to the port of departure stopping at Key West to refuel; the cargo of horses was laden at Houston, and his testimony is that several of them suffered from respiratory conditions to such an extent that some died of pneumonia before they left port.

 The total number of animals laden seems to have been about 792.

 In parentheses it should be noted that incidents of the voyage as herein stated are based upon the testimony of the libelant and the one shipmate whom he called, (Fitzsimmons). No testimony was offered by the respondent in contradiction of what they said.

 The libelant observed as the vessel was being made ready in New York, that stalls on the main deck were erected, and that several, if not all, of these stalls were occupied by horses on the outbound voyage. The log of the vessel which is in evidence, contains entries showing that the horses were loaded into the holds of the ship, but nothing therein is stated concerning their presence in the stalls on deck.

 Selby complains that while he was walking on deck during the voyage he passed close to the stalls and that the horses coughed, sneezed and otherwise communicated flying sputum which he was forced to breathe and which also fell upon his clothing. The photographs which he presented, constituting Libelant's Exhibit 10, would be consistent with partial occupancy of the stalls by horses, but it is impossible to determine from the record whether that occupancy was a permanent or transitory thing; nor is it certain that they have to do with the first voyage of the ship.

 No finding can be made on this subject because the evidence as a whole leaves the court in doubt on the subject.

 Selby also asserts that the stalls were not cleaned by the handlers and that the accumulation of excreta on deck and in the holds, rendered the atmosphere of the entire ship nauseating in the extreme, particularly when the ship was navigated on sunny days.

 The libelant's theory is shortly that by reason of the said conditions which he related in considerable detail, he lost his appetite and was thus unable to nourish his body, whereby his resistance was so lowered that the tubercle bacilli were enabled to gain ascendency with the result hereinafter to be stated.

 The ship's destination was Trieste, where the cargo was discharged, (except for the dead horses which had been disposed of) departure from Houston having been had on or about February 22, 1946; return to the latter port was accomplished on April 3rd, and the crew was paid off on April 5th.

 Selby signed on for a second voyage on April 22nd. The fact that he did so in spite of the conditions which he says obtained on the first voyage, is not without significance both as to his health on the latter date, and the actual conditions on shipboard during the first voyage.

 As to the second, it began on April 25th, the destination being Volos, Greece, where arrival was had on May 12th, and the return to Norfolk was accomplished by June 8th. This time the log shows that 814 mules and mares were laden, of which only ten died.

 The interval between the two sailings was spent by Selby on the ship which remained at Houston. He testified that before Articles were signed for the second voyage, there was an informal meeting in the mess hall by the members of the crew, and that an oiler was delegated to speak to the captain and to request that the stalls be cleaned out every day on the forthcoming voyage; he was unable to give the name of that oiler other than Frank, with whom he had already made one trip; he said that the latter reported back to the group prior to the signing of the Articles; that following what he said, the men did so sign.

 The testimony is so vague and indefinite that it is not to be relied upon, but mention is made of it because it appears in the record.

 As to the start of the second trip, libelant's testimony is:

 'As I said, I felt well, and perhaps a week, seven or eight days out of Houston, I started to get extremely fatigued again, much worse than the first time, and the stalls were not cleaned out, and there was a lot of discussions about it again, but nothing could be done.

 'As I say, the stench increased, I was getting extremely fatigued and got very sick one night, a violent upset stomach, and I had to be relieved of my watch. I had found it difficult to eat anything, even toast or anything on this trip.'

 As to the return voyage, he testified:

 'I was still fatigued, and during the trip I did go to the purser several times for the cough. I was given aspirin * * * and then, oh, two weeks or so before the end of the voyage I developed trouble with my mouth. * ...

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