United States v. Robinson

• Decision Date: 22 January 1949
• Docket Number: No. 12321.,12321.
• Citation: 170 F.2d 578
• Parties: UNITED STATES v. ROBINSON.
• Court: U.S. Court of Appeals — Fifth Circuit

170 F.2d 578 (1948)

UNITED STATES v. ROBINSON.

No. 12321.

United States Court of Appeals Fifth Circuit.

November 26, 1948.

Rehearing Denied January 22, 1949.

John H. Tappan and Percy C. Fountain U. S. Atty., both of Mobile, Ala., for appellant.

J. Edward Thornton, of Mobile, Ala., for appellee.

Before McCORD and LEE, Circuit Judges, and MIZE, District Judge.

MIZE, District Judge.

This is an appeal from a judgment of the court for the Southern District of Alabama. Appellee, George H. Robinson, filed his libel against the United States and sought recovery of $3,400 under the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., for maintenance and cure as provided by the act. He averred that he was a seaman on the ship "American Fisher" and that his vessel was employed and operated as a merchant vessel by the government, acting through the War Shipping Adminstration. He alleged that he shipped on it about the 26th of October, 1945 for a voyage from Baltimore to a foreign port and return, and that while on the vessel, engaged in his duties, he was injured. He further alleged that by the Clarification Act, 50 U.S.C.A. Appendix, § 1291, the United States had consented to be sued and that his claim had been administratively denied.

The government answered, admitting that plaintiff was a seaman on the vessel from October 26, 1945, to November 3, 1945, but denies that he was employed thereafter. It admits that he was injured while on the vessel on October 26 and remained on the vessel until November 3, 1945, and was then removed from the vessel and placed in a hospital at the United States Naval Operating Base at Guantanamo, Cuba, where he remained until November 20, 1945, and was then transferred to the Naval hospital at Key West, Florida. The government further set up a defense that the physical condition of the plaintiff in no way resulted from any injury received by him while a seaman on the Steamship "American Fisher"; that it had reimbursed him for his expenses for maintenance and cure through October 1, 1946; that the disease with which he is now suffering is incurable and that all improvement in his condition as reasonably may be expected to result from nursing, care and medical treatment was had on or before October 1, 1946, and that there was no further duty to provide treatment, nursing or care.

An agreed statement of facts was made at the trial as to many of the material facts, which is as follows:

"On the 25th day of August, 1945, Libelant was given a physical examination at the Marine Hospital in the City of New Orleans in the State of Louisiana, and a true and correct copy of the report of said examination, marked `Exhibit 1,' is attached hereto and made a part hereof. On that date Libelant signed on as a steward on a vessel operated by Tankers Company, Incorporated, as Agent for War Shipping Administration.

"On the 27th day of October, 1945, the Libelant shipped on board the ship `American Fisher,' operated by Tankers Company, Incorporated, for War Shipping Administration, for a voyage from the City of Baltimore, State of Maryland, to Puerto Rico and return. On that day, during the afternoon, while Libelant was engaged in the service of this vessel, which was then tied up at a dock in the City of Baltimore, and while on board the vessel, Libelant supervised the loading of stores aboard the vessel from a lighter tied up alongside the stern of the vessel. The stores were being hoisted from the lighter to the level of the deck by means of a fall which was secured to an I-beam which extended from the boat deck immediately above the place where Libelant was supervising the loading of the stores. The stores were hauled up with the fall until they were above the rail on the deck where Libelant was working. Longshoremen who were engaged in stowing these stores below, then pulled the stores while still secured to the fall over the rail and on to the deck, the hauling line being slacked sufficiently to allow the stores to be lowered on to the deck. Libelant was standing at the rail looking down into the lighter checking the stores yet to be stowed on board, while a three-hundred-pound (300) block of ice was hauled up in the fall and pulled over the rail preparatory to being let down on the deck. The longshoremen lost their hold on the ice and the ice swung back toward the rail where Libelant was standing and the block of ice struck him in the right rear lower chest and moved him against the rail, pinioning Libelant there. The blow received by Libelant was painful and knocked the breath temporarily out of Libelant. After a few minutes' rest, Libelant continued supervising the loading of stores and ultimately all of the stores were put below.

"Libelant continued about his duties during the remainder of the day, though he suffered some pain. That night Libelant retired for the night at about his usual time. At about one A.M. on the next morning, Libelant awakened in his bunk suffering extreme pain in his right rear lower chest. Libelant went to the Captain's quarters and reported his pain, there being no medical officer aboard, and was given aspirin. After taking the aspirin, Libelant returned to his bunk and slept fitfully throughout the remainder of the night. Libelant was unable to arise the next morning and the ship's master came to see him and asked if Libelant would like to go to the hospital. Libelant, thinking he had not been hurt seriously, stated that he did not wish to go to the hospital. The vessel sailed from Baltimore that day, October 27, 1945.

"On the 3rd day of November, 1945, the vessel was at sea. Libelant's condition had grown steadily worse and on that day it was such that the master of the vessel made arrangements with the United States Coast Guard at San Juan, Puerto Rico, for Libelant to be removed from the vessel. This was done on that day, and Libelant was taken to the Guantanamo Naval Operating Base where he was placed in the Naval Hospital, where he remained as a patient until the 20th day of November, 1945. A true and correct report of Libelant's medical history while a patient at the Naval Hospital at Guantanamo Bay, Cuba, marked `Exhibit 2,' is attached hereto and made a part hereof.

"On the 20th day of November, 1945, Libelant was transferred to the United States Naval Hospital at Key West, Florida, at which he was a patient until the 21st day of December, 1945, on which date he was released. A true and correct copy of the report of the medical history of Libelant, issued by the United States Naval Hospital, Key West, Florida, marked `Exhibit 3,' is attached hereto and made a part hereof.

"On the 23rd day of January, 1946, Libelant reported to the United States Marine Hospital at Mobile, Alabama, where he remains an out-patient to this date, reporting back to the hospital every two weeks. An abstract from the clinical record of the United States Marine Hospital at Mobile, as made on the 6th day of March, 1946, marked `Exhibit 4,' is attached hereto and made a part hereof.

"On the 23rd day of July, 1946, Libelant received $1,632.46 in accordance with the terms of a release signed by him at that time, a true and correct copy of which is attached hereto marked `Exhibit 5,' and made a part hereof.

"On the 26th day of October, 1946, Libelant was examined by the United States Marine Hospital, Mobile, Alabama, and a written report was made concerning his condition, a true and correct copy of which is attached hereto marked `Exhibit 6,' and made a part hereof.

"On the 5th day of August, 1947, Libelant was examined at the instance of defendant by Doctors G. O. Segrest and P. J. M. Acker, who made a report on Libelant's condition.

"Upon admission to the Hospital at the United States Naval Operating Base, Guantanamo, Cuba, Libelant was suffering from Pleurisy which subsequently cleared up prior to the time of his discharge from the Key West Hospital.

"The voyage of the S.S. `American Fisher,' during which the incident described in paragraph No. 3 of this agreed statement occurred, ended at Newark, New Jersey, on or about November 19, 1945.

"The above statement is submitted without prejudice to the right...