The opinion of the court was delivered by: LEVET
This is an action brought by the libellant to recover damages for personal injuries allegedly sustained by him on July 11, 1957, while a member of the crew of the SS Buena Fortuna.
After hearing the testimony, examining the exhibits, the pleadings, briefs and proposed findings, this court makes the following findings of fact and conclusions of law:
1. The libellant, Ioannis Konstantopoulos, is a citizen of the Republic of Greece, where he resides and is domiciled.
2. At all times hereinafter mentioned, the respondent, Diamante Cia. De Vapores, S.A., was and still is a foreign corporation organized and existing under the laws of the Republic of Panama.
3. At all times hereinafter mentioned, said respondent owned, operated and controlled a certain merchant vessel known as the SS Buena Fortuna, which was a vessel documented and registered under the laws of the Republic of Liberia, flying the Liberian flag.
4. On or about May 24, 1957, the libellant was engaged by said respondent as a fireman aboard the SS Buena Fortuna under an employment agreement whereby libellant's basic wages were $ 117 a month plus overtime and found.
5. The libellant was serving aboard the aforesaid vessel on the 11th day of July, 1957, on which date the SS Buena Fortuna was on the high seas en route from a European port to Newport News, Virginia.
6. At or about and between 3:30 P.M. and 3:45 P.M. on July 11, 1957, the libellant was painting a certain ship's stairway or ladder at the forward end of the upper level of the engine room on the said ship and fell therefrom sustaining certain injuries.
7. Libellant has failed to prove by a preponderance of the evidence any unseaworthiness on the said vessel or in respect to the said ladder, stairway or otherwise which contributed to or caused such injuries as he received.
8. The testimony of the libellant as to what caused his injuries of July 11, 1957 is unreliable:
(a) His testimony that he was using a scaffold is not supported by other evidence; in fact, it is contradicted;
(b) No proof indicates exactly what happened to the scaffold, if it were indeed present when libellant says;
(c) The testimony of Duffy and Salem, hereinafter referred to, indicates that libellant may have fainted from heat and fallen;
(d) The testimony of the ship's engineers, Lemos and Zaholitis, who are believed by me, definitely demonstrates that the libellant said he fell from the ship's stairway on which he was then painting;
(e) The libellant's own testimony was confused and at times contradictory, with substantial variations between his statements in the examination before trial and that at the trial.
9. I further find that the libellant has not sustained the burden of proving by a fair preponderance of the evidence that any of the injuries sustained on board the SS Buena Fortuna on the 11th day of July, 1957 continued after July 31, 1957, or were responsible for any of the conditions of which libellant complained after his discharge on July 31, 1957 from the Riverside Hospital at Newport News, Virginia.
10. The libellant has offered no evidence to prove any sums expended or liabilities incurred for hospital or medical expenses, past, present or future; he has failed to prove that he is entitled to any maintenance and cure for any injury sustained or condition contracted or aggravated while on board the SS Buena Fortuna.
Libellant claims that he was injured while painting on the SS Buena Fortuna on July 11, 1957. He was a fireman on this ship, but in overtime did certain painting. On July 11, 1957, he began painting at about 1:00 o'clock, and continued until the time of this accident, which was 3:30 to 3:45 P.M. He testified that pursuant to orders he was painting the smoke stack while seated on a plank or scaffold, which was hanging by ropes attached; that these ropes were tied to rails next to vent holes on the ceiling. He said he was seated in the middle of the plank. He expressed the happening in substance as follows: 'As I was painting, the plank got out of the rope or broke or whatever happened I don't know. I just fell down. The plank fell down too.' Libellant stated that he did not look at the ropes either before or after the fall and there is no evidence that he looked at them during the course of any painting done from the scaffold.
There was no specific indication as to what, if anything, was wrong with the plank or scaffold, except that one Capt. William C. Ash testified that it was good seamanship to use scaffolds with horns or cleats fastened crossways to the planks with the ropes wound around or tied around these horns or cleats. There was nothing in the testimony of libellant to indicate exactly what had happened. There was no supporting testimony even to indicate that a scaffold was present.
Libellant testified that one of the wipers, a Peruvian named Chumacero, was working with him but had left the scaffold before the accident to see what time it was. Konstantopoulos stated that he was trying to move to the center of the scaffold without holding on to the rope, prodding himself along with his right hand. In his examination before trial, which in many respects differs from his testimony at the trial, he had testified that he was in complete exhaustion because of the heat and that he did not see the rope come off or break.
Libellant testified that the first thing he remembered after the accident was that he awakened at a hospital; that he was dizzy; there was blood coming out of his mouth and he had pains in the head and chest. He stayed at the hospital, which was the Riverside Hospital, Newport News, Virginia, for some twenty days. The ...