June v. Pan-American Petroleum & Transport Co.
| Decision Date | 10 April 1928 |
| Docket Number | No. 5190.,5190. |
| Citation | 25 F.2d 457 |
| Parties | JUNE v. PAN-AMERICAN PETROLEUM & TRANSPORT CO. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Samuel J. Tennant, Jr., of New Orleans, La., for appellant.
George H. Terriberry, H. F. Stiles, Jr., and Jos. M. Rault, all of New Orleans, La. (Terriberry, Young, Rault & Carroll, of New Orleans, La., on the brief), for appellee.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
This is a libel by a seaman to recover damages alleged to have been caused by the unseaworthiness of the vessel on which he was employed, in that his bunk was not fitted with a side piece, because of which he fell out of it and injured his foot. He claims loss of wages at $140 per month for three months, an amount of $125 paid for medical attention, and $1,500 as compensatory damages. In the alternative, he claims maintenance and cure.
It is conclusively shown that appellant is a seaman of 15 years' experience, holding a license as chief mate of oceans, and was employed on the steamship Mexoil, owned by appellee, as third mate. The vessel, a tanker, took on a load of oil at Destrehan, a few miles above New Orleans, and appellant boarded her from a small boat when she was opposite New Orleans on her way to sea. He did not stand his first watch after boarding the ship, but did stand the next watch. After going off watch he retired, and about 3:30 a. m. on the morning of April 24, 1926, he fell out of his berth and injured his heel. The sea was calm at the time. His injury was somewhat painful at first but not at all serious. No bones were broken, and he suffered only a severe bruise to his heel. The vessel reached Miami the day after the accident, and he did not request medical treatment. The captain offered to send him to a hospital, but he declined to go. On the return voyage to New Orleans, he stood his watches and made another round trip from New Orleans to Miami on the Mexoil, performing full duty. He left the Mexoil at New Orleans on May 6th or 7th. After staying 4 or 5 days on shore and consulting a doctor, he made two other voyages, one of 29 days and one of 24 days, and was able to perform his duties.
Appellee defended on the ground that appellant was drunk when he came aboard the vessel, and that he fell out of his berth because of his intoxicated condition. Appellant admits that he had been drinking while in New Orleans awaiting his ship, but testifies he had not had a drink for two or three hours before...
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