The opinion of the court was delivered by: DUFFY
Bohdan Gajewski, a Polish immigrant who served as second assistant engineer on a public vessel of the United States, sues the United States for unearned wages, maintenance and cure, vacation pay, damages and attorney fees resulting from an illness suffered during his service aboard the USNS Neches ("the Neches") in January, 1978. The government contests Mr. Gajewski's allegation that money is due and owing. A motion to dismiss by the defendant for lack of jurisdiction was made on the morning of trial. I reserved decision pending submission of papers on the jurisdictional issue by both sides after the trial. A two day non-jury trial was held before me on the merits of plaintiff's case on September 10th and 14th, 1981. The following shall constitute my findings of fact and conclusions of law.
Mr. Gajewski joined the crew of the Neches, owned by the U.S. Military Sealift Command and operated by Cove Shipping, Inc., on November 22, 1977 as second assistant engineer, after two prior occasions of service aboard this ship. The Neches was at sea on short passages from November 22, 1977 until January 4, 1978 when the ship landed at Beaumont, Texas. On January 14, 1978, the Neches left Texas on a voyage which ended April 20, 1978. En route, the ship docked in Norfolk, Virginia on January 19, 1978 where Mr. Gajewski departed.
The overtime records from January 5 through January 12, 1978 indicate that Mr. Gajewski worked one hundred and twenty-six hours during this eight day period. Defendant's Exhibit K. Although the exact number of hours actually logged is disputed, it is clear that substantial periods of overtime were worked. The port time in Beaumont was used to repair the disastrous condition of the ship. Dabrowski Deposition, at p. 24. Consequently, excessive overtime hours were required of the plaintiff and other crew members. During this period Mr. Gajewski's duties ranged from watch of the engine room to more strenuous activity such as repairing the fuel pump and air compressor. In the engine room, where Gajewski did most of his repair work there was no air conditioning and the temperature often reached 90 degrees.
On January 14, 1978, when the Neches left Texas, Mr. Gajewski's overtime hours decreased sharply. Plaintiff contends that this drop off resulted from ill health, whereas the government argues that the ship was purposely cutting down on overtime hours available to the crew members in order to curb expenses. Whatever the reasons may be for the decreased overtime, Mr. Gajewski rarely worked more than two hours overtime from January 14th until the ship landed in Norfolk on January 19, 1978.
Mr. Gajewski testified that shortly after the ship left Texas he began to experience pain in his chest "radiating to my left side, and I was short of breath on it. It was like a pressure, like somebody was squeezing me. And I was sweating." Trial Transcript at p. 22. Mr. Gajewski obtained a Master's Certificate, Defendant's Exhibit G, on January 18, 1978, allowing him to obtain free medical care at the Public Health Service Hospital in Norfolk. The certificate states that the plaintiff was "not taken ill or injured while employed."; however, it is undisputed that Mr. Gajewski went straight from the ship to the Norfolk Hospital.
The doctors placed Mr. Gajewski in the intensive care unit for three days to monitor his heart. He was subjected to a myriad of tests and medications. During his hospitalization, the doctors detected a pulmonary embolism after an abnormal electrocardiogram was taken on January 25. This diagnosis resulted in more extensive tests and medication, and further prolonged Mr. Gajewski's hospital stay. The plaintiff remained as an inpatient at Norfolk Hospital until February 17, 1978 when he was released although he was not yet fit to resume duty. The hospital told him to return on March 10, 1978 if he had not secured private care elsewhere. Plaintiff's Exhibit 1. Gajewski immediately left for New Jersey, where he became the patient of Dr. Schwimmer, an internist. Mr. Gajewski remained under Dr. Schwimmer's care from February 21, 1978 until July 10 of that year when he was declared fit to resume duty. Plaintiff's Exhibit 2.
This lawsuit ensued from the plaintiff's unsuccessful attempts to recover from the United States Government unearned wages, maintenance and cure, and damages incurred during his illness.
Robert Silance, an employee of Cove Shipping, testified that the plaintiff visited his offices in February, 1978 in New York City and at that time he was paid a $ 500 advance on unearned wages. Unearned wages of $ 1,412.82 were paid to Mr. Gajewski when he reported to Cove Shipping, Inc. in July his change to active duty status. This amount only covered the period of Mr. Gajewski's hospitalization, January 19, through February 17, and was based on a forty hour work week with no allowance for overtime. Mr. Gajewski also received a $ 1,049.89 net payment of owed vacation pay for the same period. These are the only payments received by the plaintiff.
This lawsuit was initiated to recover unearned wages, overtime, and vacation pay through April 20, 1978, when the Neches' voyage which started on December 3, 1977 officially ended, and maintenance and cure from that time until July 10, 1978 when Gajewski was returned to active duty status.
The first issue to be resolved in this case is whether the plaintiff properly obtained personal jurisdiction over the government. It is the government's contention that no jurisdiction exists because it was not properly served. The summons and complaint were filed in this case on September 28, 1979. Copies of the summons and complaint were forwarded to the office of the United States Marshal ("Marshal") for service on the defendant on October 16, 1979. Court Exhibit A. It appears that the plaintiff's papers were misplaced and service on either the Attorney General or the United States Attorney was not effected until January 27, 1980 after plaintiff's counsel filed a supplemental summons and resubmitted copies to the Marshal's office for service.
Defendant contends that the eighteen day delay between the filing of the summons and complaint and delivery to the Marshal runs afoul of 46 U.S.C. § 742 and mandates dismissal of plaintiff's action. Section 742 states in pertinent part ...