The opinion of the court was delivered by: LASKER
In this action seaman-plaintiff Blouin seeks recovery for maintenance and cure, unearned wages, and counsel fees. The complaint originally contained causes of action for negligence and unseaworthiness as well, but they were dismissed at the close of plaintiff's case. The jury which had been impanelled was also dismissed at that time, and the remaining issues were tried to the court. After considering the evidence and reviewing the applicable legal principles, I hold that plaintiff is entitled to recover for maintenance and cure.
On April 29, 1965, Francis Blouin appeared before Dr. George E. Burden to undergo a pre-employment physical examination prior to "signing on" as a member of the crew of one of defendant's ships. Dr. Burden, who was both employed and called to testify by defendant, rejected Blouin as not fit for sea duty because of hypertension (high blood pressure) and bronchitis. Blouin signed an examination form which Dr. Burden prepared. Above Blouin's signature appears the statement: "I have not been treated for any illness or injury by any private or Government doctor during the past 10 years except as included above." No illness or injury was "included above." Dr. Burden testified that he "specifically asked" Blouin about such previous afflictions. Dr. Burden also stated that he found a few rales at the base of Blouin's chest, that he thought it might have been bronchitis that caused them, that Blouin "had some congestion in his lungs," and that he did not examine further because Blouin's blood pressure was high enough so that "that alone would reject him." The recorded blood pressure was 180/104.
Blouin then exercised his right to a second examination by the Public Health Service and secured a "fit for duty" clearance from a Service physician, after which he signed on for service aboard the SS. EXCHESTER, owned by defendant.
The EXCHESTER sailed from New York on May 12, 1965. It was on a Mediterranean tour, and the first port reached was Rota, Spain, on May 24. The captain of the EXCHESTER, Joseph A. Pagano, testified that on May 26, the date of the ship's departure from Rota, Blouin was reported as being under the influence of alcohol and was reprimanded. The same thing happened in Catania, Sicily, on June 3. On June 4, Blouin was "logged" and fined for misconduct, for failure to perform his duties, and for being under the influence of alcohol. He was logged again on June 12 in Venice, and either logged or reprimanded on June 14 in Trieste. (Captain Pagano's chronological account of the events from June 12 to 14 is somewhat confusing. The ship's log, from which he read, fails to clarify those events.)
The EXCHESTER arrived in Rijeka, Yugoslavia, on June 13. That night Blouin went ashore. He was brought back to the ship on the morning of the 14th by a police escort. While under the influence of liquor, he had exposed himself in a public restaurant. Captain Pagano ordered him not to go ashore again, and took away his pass, but later that day Blouin left ship anyway. When he returned, on the evening of the 14th, he was under the influence of alcohol.
On June 15th, Blouin went to the purser, Mr. Cyril F.A. Carthy, and requested a doctor "for my high blood pressure."
Carthy, who was the chief medical officer on board ship, noted that no accident or injury was reported and none claimed. Carthy notified the ship's agent that a doctor was requested, without delay, and at 11:15 A.M. on June 15th, one Dr. Nonveiller arrived and performed an examination. The doctor diagnosed Blouin's condition as "Acute alcoholism, exhibitionism, High Blood Pressure (180/90)." He prescribed certain tablets and recommended that Blouin be hospitalized in Barcelona, Spain, to which port the EXCHESTER was scheduled to sail that day. The doctor explained to Carthy and Pagano that Rijeka lacked proper facilities to treat Blouin. At trial, Carthy noted that he had visited two Rijeka hospitals and "readily understood" what the doctor meant.
At 4:00 P.M. on June 15, Carthy was informed by another officer that Blouin had collapsed on the deck. When Carthy arrived, the plaintiff was breathing heavily, complained of a violent headache, and could not stand unaided. Carthy and Captain Pagano arranged for Blouin to be taken to the ship's hospital, where he was confined and treated until June 18, when the EXCHESTER arrived in Barcelona. There, he was removed from the ship and taken to the Serrallach Urological Clinic. The diagnosis of one Dr. Alomar was "Crisis of arterial hypertension with intensive headache and arterial tension of 200." On July 1, the Clinic Director where Blouin was confined reported that the "hipertensive crisis" (sic) had diminished and that Blouin could embark again.
After his release from the Barcelona clinic, the plaintiff was flown back to the United States. He entered the United States Public Health Service Hospital, Staten Island, on July 13, 1965, and remained there until August 25, 1965. The hospital admission record notes:
"This 52 year old colored male has a 24 year history of increased blood pressure. During this time the patient had been treated with a variety of medications on an outpatient basis. During the past two years the patient has noted chest pain and dyspnea on exertion. The patient has a two year history of orthopnea and occasional paroxysmal nocturnal dyspnea. On 6/18/65 the patient had a blackout spell aboard ship. * * * Since June 18th the patient has noted headaches * * * These are not relieved by aspirin. There is no history of trauma or previous unconsciousness."
Dr. Eugene Clark, a cardiologist called by the defendant, summarized Blouin's Staten Island hospital records. Those records indicate that upon his admission the plaintiff complained of headaches, and showed signs of moderate elevation of the blood pressure and possible enlargement of the liver. Blouin's blood pressure on the first day ranged from 150/108 to 156/106. The subsequent readings, for the next few days, ranged from 135/90 to 156/96. Dr. Clark characterized these as signifying "a very mild and a labile hypertension. It is present at times and absent at other times."
The hospital records say that Blouin had some congestive heart failure and his final diagnosis contains that finding. However, Dr. Clark maintained that none of the tests verified the occurrence of congestive heart failure, and stated that in his opinion the plaintiff had "mild hypertension and signs of a sub-acute or subsiding bronchitis." He testified that an electrocardiograph was taken on the second or third day, and that the results were entirely normal. Upon cross-examination, plaintiff's attorney mentioned a subsequent ...