The opinion of the court was delivered by: MODARELLI
This is a libel brought upon two causes of action, one for damages for alleged breach of warranty of seaworthiness, and the other for maintenance and cure. From the pleadings and proof at a trial without a jury, I make the following:
1. Plaintiff, Cleveland B. Sawyer, was employed by the defendant as a pumpman on June 7, 1953, on the late afternoon of which day he boarded the defendant's oil tanker, the S. S. Fort Mims, at Perth Amboy, New Jersey.
2. Plaintiff was examined by a physician on behalf of the defendant herein and found fit for duty prior to joining said vessel.
3. While the vessel was in port, plaintiff was assigned the task of attending the ballasting operation, his main duties being to see that the tanks did not overflow and observe that the pumps were functioning properly.
4. Plaintiff discovered that there was leakage from the pumps and that some oil had settled on top of the bilge in the pumproom. Some oil fumes were also apparent to the plaintiff.
5. After the vessel had put to sea, plaintiff became ill while attending his duties and some time around midnight sought assistance from the First Mate, Mr. Waterman, who promised to send a seaman to help the plaintiff.
6. The seaman made an official report to the First Mate that plaintiff was not found in the pumproom but was discovered asleep in a corner of the shelter deck. During plaintiff's absence from his duties, one of the tanks overflowed onto the deck.
7. Plaintiff had consumed two drinks of alcoholic beverage during the afternoon prior to boarding the vessel and two drinks after going aboard, but I am unable to conclude therefrom that he was in an intoxicated condition.
8. I find that the leakage from the pump was a normal incidence of their functioning and that the oil fumes in the pumproom were not excessive considering the type of vessel in question.
9. On June 8, 1953, the plaintiff was called upon to assist the Chief Pumpman in opening a 'frozen' valve, using a 36' Stillson wrench for the purpose. In performing this operation, the wrench slipped, the handle striking the plaintiff in the abdomen. This incident was not reported to those in command. Plaintiff continued to work throughout that day.
10. The following morning plaintiff complained to the Purser that he had been expectorating blood and that he was ill from the gas fumes inhaled during the ballasting operation. He also reported that he had suffered gall bladder trouble. Plaintiff refused the offer to enter the hospital quarters aboard, preferring instead to return to his room. An ice bag was provided him.
11. Later, on the afternoon of the same day, plaintiff returned to the Purser complaining of nausea and vomiting. The Purser administered epsom salts. On a return visit milk of magnesia was given to the plaintiff. The Captain radioed the Coast Guard and the advice received therefrom was followed.
12. At the port of destination, Harbor Island, Texas, on June 13, plaintiff was discharged and given a marine ticket which would admit him to any United States Public Health Service Hospital. The nearest ...