THE SAGUACHE, 294.
| Decision Date | 03 June 1940 |
| Docket Number | No. 294.,294. |
| Citation | 112 F.2d 482 |
| Parties | THE SAGUACHE. MEYER v. UNITED STATES et al. |
| Court | U.S. Court of Appeals — Second Circuit |
John T. Cahill, U. S. Atty., of New York City, and Harold M. Kennedy, U. S. Atty., of Brooklyn, N. Y. (Myron H. Avery, Sp. Asst. to U. S. Atty., of Washington, D. C., of counsel), for United States.
Lucien V. Axtell, of New York City (Silas B. Axtell, of New York City, and Dominick Blasi, of Brooklyn, N. Y., of counsel), for William Herbert Meyer, libellant.
Before L. HAND, AUGUSTUS N. HAND, and PATTERSON, Circuit Judges.
This is an appeal and a cross-appeal from a final decree upon a libel in admiralty filed by a seaman to recover for personal injuries. The pleading sets forth three causes of action.
The first is to the effect that on the high seas, while the libellant was working as a fireman on the Steamship Saguache, he was ordered to clean and paint the fire-room, that the place where he was required to work "was extremely hot, without ventilation and almost at a point of suffocation * * * that thereafter he became very sick, had a cough, was unfit for duty and in an extremely run down and debilitated condition, and he thereafter developed tuberculosis"; that libellant's illness and resulting disease was due to negligence of the respondents in failing to provide him with a safe place to work and in compelling him to perform the above duties under the conditions mentioned. The second cause of action is to the effect that the respondents neglected to provide him "with proper medical and surgical treatment and attention". The third cause of action asserts a claim for maintenance and cure for a reasonable time after the termination of the voyage.
The trial judge granted a decree allowing libellant $1500 upon the third cause of action and dismissing the first two causes of action based on negligence. The United States appealed from the amount awarded upon the third cause of action, and the libellant filed cross-assignments of error attacking the disposition of the first and second causes of action.
We hold that the dismissal of the causes of action founded on negligence was proper, but that the claim to recover damages for failure to provide maintenance and cure was not established.
The libellant Meyer signed articles for a voyage on the S. S. Saguache from Galveston to Breman, Rotterdam and Texas City. He testified that after he left Galveston, and while the vessel was at sea, he was directed to wash paint in the fireroom. He made no objection to doing this but did complain to the second engineer who had charge of the boiler-room that it was very hot. He said that he perspired profusely and went under the ventilators to get cool, caught a cold and as a result he claimed to have contracted tuberculosis. He testified that after the ship reached Bremen, her first port of call, and while she was there he was very sick, but that after leaving Bremen he resumed duty as a fireman when the ship was en route to Rotterdam. On arriving at Rotterdam he consulted a doctor who examined him with a stethoscope and told him he had a slight bronchial trouble, should rest for a few days and would be all right. Four or five days after leaving Rotterdam, where he had lain in his bunk three or four days, the engineer asked him to go to work because the ship was short one wiper and on the way home he cleaned the engineroom, polished the hand-rail, cleaned some of the places on the bulkhead that were dirty and did some light painting. He was weak when he arrived at Galveston and was sent to the Marine Hospital on November 9, 1925, where he was treated until February 6, 1926, leaving for an interval of about a week without permission. About February 7, 1926, he was transferred to a Marine Hospital for tuberculosis at Fort Stanton, New Mexico, where he remained for a year and two weeks and his...
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