Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.
This is an appeal from a decree in an admiralty action awarding a seaman maintenance and cure.*fn1
The facts as found by the District Court may be stated as follows:
Between May 2 and August 2, 1951, the libellant, William C. Luth, was employed as a boatswain on the Steamship "Nathaniel B. Palmer", owned and operated by the respondent, Palmer Shipping Corporation. In the latter part of July, 1951, while the vessel was outside Buenos Aires, Argentina, libellant became disabled because of acute stomach pains. He was treated by a physician in Buenos Aires. On August 2d, libellant's pains became so severe that he was removed to the British Hospital in Buenos Aires. The diagnosis was duodenal ulcers. Two operations were performed to relieve gastric ulcers and resect a part of the stomach, resulting in a scar across his abdomen. About this time libellant's bottom teeth were extracted. He remained at the British Hospital from August 2d until October 11, 1951, at which time he was repatriated at respondent's expense to Philadelphia, arriving there October 17, 1951. At the time of the repatriation there was due the libellant the sum of $304.85 in unearned wages, which respondent refused to pay.
On October 31, 1951, libellant reported to the United States Public Health Service at Philadelphia for treatment of his incision, which had not yet healed. While receiving treatment for his incision, he complained of stomach pains and nausea after eating. On November 29, 1951, he was given a diet schedule and was advised that due to the reduced size of his stomach pouch he should eat smaller and more frequent meals each day. He was under treatment until December 21, 1951, when he asked the Public Health Service for a fit-for-duty slip, so that he could secure employment. In compliance with his request, the Service gave him a certificate of discharge, stating that he was "fit for full duty." On the same day he joined the crew of the Steamship "Dorothy" as ship's carpenter. Two weeks after he started work on the "Dorothy" libellant first noticed a small swelling in one part of his incision. However, he continued to do his regular work. The swelling gave him no pain at that time and he did not report the condition to the Master of the vessel at any time before he left that employment on April 1, 1952, after serving for three consecutive voyages.
After he left the "Dorothy" he applied for a position as a rigger at a shipyard where he was told that he was physically unqualified for the job because he had an incisional hernia. On April 4, 1952, he returned to the Public Health Service where he was examined and advised to submit to an operation to eliminate the incisional hernia. He was also requested to obtain lower dentures to assist him in properly chewing his food, which would aid in controlling the gastritis which caused his stomach pains and nausea after eating.
Beginning April 19, 1952, libellant for various periods of time, obtained the following positions:
From April 19 to 28, 1952, he was on the "Cape Fairweather" as a standby;
From June 2 to June 6 he worked as a painter;
Starting June 9, he worked three days for Haenn Shipping, shoring up cargo; and
Starting June 15, he worked two days for the Jarka Corporation, doing similar work.
On June 20, 1952, libellant's counsel wrote a letter to respondent informing it of the fact that he had developed the hernia, that an operation was necessary and that he was without funds to maintain himself during the convalescence period. He asked that it assure him it would provide the funds for his maintenance, and if the Public Health Service did not perform the operation free of charge, he would expect the respondent to pay for it. Respondent did not reply to his letter. Respondent did not offer to pay libellant maintenance and cure if he submitted to surgery for the removal of the incisional hernia.
From the period of July 2 to September 30, 1952, libellant worked as a carpenter on the Steamship "Carolyn". Although he performed his work, he did not feel well because he was continually nauseated. Thereafter he worked intermittently as a ship ...