Opinion
No. 17163.
May 2, 1949.
George J. Engelman, New York City (Stanley P. Danzic, New York City, of counsel), for libelant.
J. Vincent Keogh, United States Attorney for Eastern District of New York, Brooklyn, N.Y. (Corydon B. Dunham, New York City, of counsel), for respondent.
This case was duly tried before me, and I found no cause for damages because of negligence. However, I am satisfied that libelant, as a result of the accident, did receive a serious aggravation of an existing physical condition while in the service of the ship, and has made a proper case for the allowance of maintenance.
The accident happened October 25, 1943, and from that time on to the date of the trial, libelant suffered recurrent pain and disability in his back, which seriously interfered with his continuous carrying on of his work as head waiter at various places.
As stated by the Court of Appeals of this Circuit, each case is to be decided on its own established facts, and where a possibly incurable condition has brought about recurrent disability, the seaman is entitled to maintenance and cure, for at least a reasonable time after the accident. Muruaga v. United States, et al. 2 Cir., 1949, 172 F.2d 318.
To be sure there is proof that from time to time libelant suffered from this unfortunate condition when he was working at different places, but the proof indicates that very frequently he was unable to work because of the pain and condition of his back.
Counsel for libelant calculates that in the aggregate during these months since the accident there was a considerable number of days when he could not perform his work, although if this unfortunate situation had not existed, he was averaging One hundred and twenty-five Dollars a week during this period of several years. That the sum of Twenty-five Dollars a week for these breaks in employment due to the accident was neither unreasonable nor without substantial proof.
Of course there must be a definite and reasonable end of liability under such conditions, but I think that the sum of Three thousand Dollars covering this period of several years up to the date of trial, is a proper allowance for maintenance and cure.
A decree, therefore, for this sum may be presented, together with proposed findings of fact and conclusions of law.