Ahmed v. United States, 60
| Decision Date | 25 November 1949 |
| Docket Number | No. 60,Docket 21372.,60 |
| Citation | 177 F.2d 898 |
| Parties | AHMED v. UNITED STATES. |
| Court | U.S. Court of Appeals — Second Circuit |
John F. X. McGohey, United States Attorney, New York City, Proctor for appellant; Corydon B. Dunham, New York City, of counsel; Xavier N. Sardaro, New York City, Advocate.
Joshua S. Lev, New York City, Proctor for appellee; Herman B. Gerringer, New York City, Advocate.
Before L. HAND, SWAN and FRANK, Circuit Judges.
This is a libel for maintenance brought by an Egyptian seaman who was employed as an oiler on the appellant's merchant vessel "Samuel Ashe."1 During the voyage a previously arrested tubercular condition became reactivated and aggravated to an extent requiring hospitalization of the libellant as an inpatient from June 6, 1944 to July 8, 1946 and as an outpatient from the latter date until October 6, 1948. The decree awarded him maintenance from July 8, 1946 to December 1, 1949 at $5.00 per day, less sums received during that period as public relief and from a short period of private employment, the total award being $6,020. The appellant does not question the amount of the award if the seaman is entitled to any recovery, but contends that his conduct was such as to forfeit his right to maintenance.
In 1943, while serving on an American vessel, Ahmed became sick and was hospitalized at the United States Marine Hospital in Puerto Rico. From there he was transferred in July 1943 to the Marine Hospital at New Orleans, Louisiana, where his condition was diagnosed as "tuberculosis of the lung moderately far advanced." In the hospital his condition improved and at the end of August his sputum was found to be negative. On December 9, 1943 he was discharged at his own request against medical advice; he was cautioned not to work for several months and then to do only light work for some time. About a week after being discharged, Ahmed sought employment as an oiler on a ship operated by Spencer Kellogg Company. He received the routine physical examination and was passed as fit for duty. The voyage for which he signed on ended January 19, 1944. Between that date and April 18, 1944 he was unemployed because he found no work. On the latter date he signed on as an oiler on the steamship Samuel Ashe after a physical examination in which he was again found fit for duty. Both on this and the previous examination his chest was tested only stethoscopically. In neither examination did he volunteer information that he had previously been treated for tuberculosis and advised not to work for several months. At the trial he testified, and the court found, that during the period of approximately four months between his discharge from the New Orleans hospital and his signing on for the voyage of the Samuel Ashe he felt in good health and believed that he was well enough to perform the duties of an oiler on ships.
As already stated, Ahmed became ill during the voyage of the Samuel Ashe and had to undergo treatment for advanced tuberculosis of the lungs at various hospitals from June 6, 1944 to July 8, 1946. The last of these was the Marine Hospital, Neponsit Station, Rockaway Beach, New York. There he was a rather restive patient. He was discharged on the date last mentioned to outpatient status with a notation that he was emotionally unstable and not suited for institutional care. He continued to receive outpatient treatment at Neponsit Station until October 6, 1948.
The appellant urges that a seaman who is sick and holds himself out as fit for duty cannot recover maintenance and cure. The case relied upon for this proposition, Tawada v. United States, 9 Cir., 162 F.2d 615, does not support so broad a contention. There it was held that a seaman who, knowing that he was afflicted with a disabling disease, concealed the fact and held himself out as fit, was not entitled to maintenance. Here the court found that Ahmed believed himself in good health. The appellant argues that Ahmed should have called his quiescent tubercular condition to the attention of the physician who examined him as a prospective member of the crew. No authority has been cited which supports this argument. On the contrary, long ago it was held that a seaman who believes himself fit for duty and signs on without any fraudulent concealment, is entitled to maintenance and cure, notwithstanding a previous condition of ill health. Neilson v. The Laura, 17 Fed.Cas. page 1305, No. 10,092.2 When a shipowner undertakes by a physician's examination to satisfy himself as to the fitness of a prospective member of the crew, we think that such examination...
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