
    KOSLUSKY v. UNITED STATES.
    United States District Court S. D. New York.
    Aug. 18, 1952.
    
      O. Raymond Basile, S. P. Danzig, New York City, proctors for libelant.
    Myles J. Lane, U. S. Atty., New York City, by Macklin, Speer, Hanan & McKer-nan, L. F. Hanan, M. J. McHugh, New York City, proctors for respondent.
   WRIGHT, District Judge.

This suit is brought under the Suits in Admiralty Act against the United States as owner and operator of the sea-going tug,M/V Black Rock. Two causes of action are alleged, one under the Jones Act, 46 U. S.C.A. § 688, claiming damages and the other for maintenance under the general Admiralty law. Libelant’s claim in damages is predicated on injuries he allegedly received while a member of the crew of the M/V Black Rock when he jumped from the bow of a sinking vessel on which he' had been sent by the Master of the Black Rock in order to make a towing hawser fast to her. Respondent admits libelant jumped as alleged but maintains that he volunteered to go aboard the sinking vessel and, in any event, any injuries he may now have are in no way related to his jump. The issues of fact and law having come on to be heard on the pleadings and proofs of the parties and due deliberation having 'been had, the court now makes the following findings of fact and conclusions of law.

Findings of Fact.

1. The Motor Vessel Black Rock is an ocean-going tugboat approximately 196 feet in length and carries a complement of thirty-six officers and men. On June 24, 1944 the vessel was owned by the United States and operated by a general agent.

2. The libelant, Joseph Koslusky, is fifty-eight years old, ■ and at the time of the institution of this action resided in the jurisdiction of the court. He has been a merchant seaman for over thirty-five years and has served on various merchant vessels owned by the United States and operated in connection with the war effort of this country during World War II. He signed on the M/V Black Rock on May 16, 1944 and served aboard her as 'oiler until September 14, 1944.

3. On June 24, 1944 The Black Rock was engaged In towing operations in the English Channel. In the early morning of that date the vessel received orders from the British Admiralty to go to the assistance of a .British merchant vessel which was in distress as a result of bombing, torpedoing or having struck a mine. The Black Rock arrived alongside The Fort Norfolk at 9:15 A.M.

. 4. Libelant had stood the 4 to 8 watch and was in the mess hall having -breakfast when The Black Rock was ordered to the assistance of The Fort Norfolk. He came out on the deck of the ship as she came alongside The Fort Norfolk. The majority of the members of the crew at that time were assembled on the after part of the main deck. The Captain, the Purser and a member of the Navy gun crew were on the after part of the boat deck.

5. On inspection of the condition of The Fort Norfolk the Captain of The Black Rock was of the opinion that she would sink rapidly. He, therefore, advised the officers aboard a British naval vessel standing by that he would not order his men aboard The Fort Norfolk to put a line on her or to perform other salvage services.

6. After The Black Rock’s Master refused to order his crew aboard The Fort Norfolk a discussion among the men who were standing on the after part of the main deck ensued, as a result of which some members of the gun crew volunteered to go aboard The Fort Norfolk. Three members of the Navy gun crew boarded The Fort Norfolk by means of a Jacob’s ladder which was hanging from her side. After the Navy men boarded The Fort Norfolk three members of the merchant crew including libelant volunteered to and did board the vessel.

7. On boarding The Fort Norfolk several of the men including Koslusky went to the bow of the vessel for the purpose of receiving a line from The Black Rock and making the same fast to The Fort Norfolk. A line was passed from the tug to The Fort Norfolk and actually made fast to her bow bitts. The slack was then taken up by using the capstan on The Black Rock.

8. As the slack on the towing hawser was being taken up, all of the seamen except Koslusky moved from the bow to the middle of the vessel. At this point The Fort Norfolk began to break in half and the seamen all ran down the Jacob’s ladder which was still over the side of the vessel. Koslusky, isolated in the eyes of the vessel by swinging booms and other loose gear, jumped into the water from the bow. At the time the bow was rising as the stern was sinking and various witnesses have estimated the distance from the bow to the water from 50 to 75 feet.

9. Koslusky and the other seamen who had been on the sinking Fort Norfolk swam to The Black Rock or to a British net tender which had come alongside. On reaching The Black Rock Koslusky climbed up the Jacob’s ladder which had been thrown over the side for the purpose of taking the men back aboard.

10. Libelant showed no particular ill effects from his jump into the water on his return to the vessel. He continued to do his work until September 14, 1944 when the vessel arrived at Plymouth, England, and he was taken by the Chief Engineer to the 115th General Army Hospital there. From this hospital he was transferred to the 67th General Army Hospital and on November 5, 1944 was repatriated to the United States aboard The Brazil, a hospital ship. On arrival in the United States on November 16, 1944 he was admitted to the United States Marine Hospital at Brighton, Massachusetts, from which he was discharged on November 29, 1944 with a recommendation of thirty days convalescence.

11. Thereafter libelant received treatment as an outpatient at the United States Public Health Service Hospital at 67 Hudson Street, New York, on several occasions and was discharged as fit for sea duty in May of 1945. On May 29, 1945 he was examined and passed for sea duty on the S/S Grace Abbott upon which he served as an oiler. Pie left that vessel on August 22, 1945 to enter a hospital at Balboa Heights, Canal Zone, where he remained for several weeks. He was returned to the United States and on October 5, 1945 he entered the Marine Hospital at Ellis Island where he remained until May 27, 1946. Since that time he has been in various hospitals including the U. S. Marine Hospital at Ellis Island and the U. S. Marine Hospital at Stapleton, Staten Island, from .which he was discharged on September 17, 1951 as permanently unfit for duty at sea. He now resides at Sailors Snug Harbor, Staten Island, New York, and is disabled from performing any duties.

12. Libelant claims that his present deafness, blindness in his left eye, spondyl-olisthesis, or a slipping forward of the fifth lumbar vertebra, and encephalopathy, a degenerative disease of the brain, are all directly attributable,to his jump from the bow of The Fort Norfolk.

13. Prior to his service aboard The Black Rock he had been injured when the S/S Florence McDonald, the vessel on which he was serving at the time, was torpedoed in June of 1943. He received various medical treatment for his injuries and on November 8, 1943 was admitted as a patient at Gladstone, a rest or convalescent home for seamen. At the time of his admission to Gladstone he gave a history of gonorrhea and syphilis in 1932. He also stated that for two months prior to his admission he had been suffering with pains across his lower back. His examination at Gladstone shows the following:

“Sensory; bazaar; inconsistent hy-•pesthesia and hypalgesia over the left lower thoracic region posteriorly. There is severe tenderness all over the back.”

His Gladstone record contains further information as follows:

“He was advised that if any of the symptoms should return he should report back. Because of the nature of this patient’s illness the prognosis must be considered guarded, since there is very apt to be a recurrence particularly when he is about to board a ship.”

14. On May 16, 1944 when libelant was examined for duty aboard The Black Rock, his condition was found to be:

“Eyes: Cataract left eye.' Pupils: Left pupil sluggish and small.
Vision: Uncorrected: Rt. 20/25, It, 20/00
Ears: Cerumen (rt.)
Height: 5'5" Weight: 137 lbs.
Spine and Extremities: Three (3) fingers on left hand absent
Heart: Very slight systolic murmur at apex.
Pulse: 94 Blood Pressure: 150/110
Diagnosis: External Hemorrhoids, 3 fingers of' left hand amputated and cataract — left eye.
'Seaman was declared competent for • sea duty.”

This examination, while not to be relied on particularly because it is the superficial type usually given seamen prior to signing on a vessel, shows that libelant was unable to see from a distance of 20 feet out of his left eye because of a cataract and because the pupil was sluggish and small. This examination makes no reference to the back condition of which the patient complained on his admission to Gladstone.

15. On September 14, 1944 when being admitted to the 115th General Army Hospital at Plymouth libelant complained of pains in his abdomen and of nausea. As far as that hospital record shows he made no complaint about his left eye, his ears, or his back, although he did say that he had been suffering from failing vision and hearing for one year. On October 27, 1944 when libelant was discharged from the 115th Station Hospital, the diagnosis was:

“1. Other diseases of the brain, unspecified, cerebellar lesion, acute, severe, cause undetermined.
“2. Defective hearing, bilateral, type undetermined, chronic, cause undetermined. Hearing AD 5/15 AS 3/15
“3. • Defective vision, left type undetermined, chronic, cause undetermined. Vision OD 20/15 OS Hand movements at 2 feet.”

In connection with the disease of the brain of which Koslusky was found to be suffering, it should be noted that his Kahn test for syphilis was positive. The other tests given him at this hospital for syphilis were negative.

16. As stated above libelant was transferred from the 115th Station Hospital to the 67th Station Hospital, to the hospital ship, Brazil, and to the U. S. Marine Hospital at Brighton, Massachusetts. On his discharge from the Brighton Hospital on November 29, 1944, the diagnosis was:

“Osteoarthritis Secondary cataract Tertiary lues Deafness due to degeneration of acoustic nerve, cause unknown.”

In connection with the diagnosis from this-hospital it should be noted that Koslusky was apparently found to be in the third stage of syphilis.

17. On libelant’s return to New York from the U. S. Marine Hospital at Brighton, Massachusetts he reported for outpatient treatment on several occasions tO' the U. S. Marine Hospital at 67 Hudson Street, from which he was discharged fit for duty on May 14, 1945.

18. On May 29, 1945 libelant signed on the S/S Grace Abbott after the usual sign-on physical examination by the U. S. Public Health Service Dispensary Annex at 45- Broadway. This examination, which, as above stated, being a pre-sign-on examination, is not to be relied on. The report of the examination does say, however, that the medical findings are the same as,the findings of his pre-sign-on examination for The Black Rock on May 16, 1944.

19. Libelant served aboard the S/S Grace Abbott from May 29, 1945 until August 22, 1945 when he entered the Margarita Hospital in the Canal Zone. He was transferred from that hospital to Gorgas Hospital, Canal Zone, and was discharged therefrom on September 25, 1945. After being flown back to the United States he was admitted on October 5, 1945 to the U. S. Marine Hospital, Ellis Island, from which he was transferred on April 9, 1946 to the • U. S. Marine Hospital, Stapleton, Staten Island. On May 27, 1946 he was discharged from the Stapleton Hospital but continued to receive outpatient treatment at the U. S. Marine Hospital at 67 Hudson Street until October 4, 1946 at which time he was again admitted as an inpatient at the U. S. Marine Hospital, Ellis Island. He was discharged from that hospital on November 22, 1948 and readmitted to the U. S. Public Health Hospital, Stapleton, .Staten Island, on January. 18, 1951. He was discharged from the Stapleton Hospital on September 17, 1951 and sent to Sailors Snug Harbor where he now resides.

20. Upon discharge from the U. S. Marine Hospital, Stapleton, Staten Island, on September 17, 1951, the narrative summary on libelant’s clinical record showed:

“Diagnoses: 1. Spondylolisthesis, L-5, S-l
2. Osteoarthritis of lumbosacral spine
3. Deafness, bilateral, nerve, degenerative, cause unknown
4. Blindness right (left) eye, traumatic cataract
5. Encephalomyelitis of undetermined etiology
Condition: Improved
Prognosis: Poor
Disposition: No further hospitalization necessary. Permanently unfit for duty at sea, and was transferred to Sailors Snug Harbor for permanent care.”

21. The evidence fails to establish a direct causal relationship between libelant’s physical condition and his jump from the bow of The Fort Norfolk on June 24, 1944.

22. Libelant is entitled to maintenance at the rate of $4.50 per day for the periods from November 29, 1944 to May 26, 1945 and from September 25, 1945 to October 5, 1945; at the rate of $6 per day for the periods May 27, 1946 to October 4, 1946 and from November 22, 1948 to January 18, 1951.

Conclusions of Law

1. This court has jurisdiction over the subj ect matter of this suit and the venue is properly laid in the Southern District of New York. 46 U.S.C.A. § 742.

2. The burden is upon the libel-ant to prove the justice of his claim by a fair preponderance of the evidence. Li-belant has failed to carry this burden as to his claim in damages under the Jones Act and that claim must be dismissed.

3. Libelant- is entitled to maintenance as shown in Paragraph 22 of the findings of fact.

Let a decree be prepared in accordance with these findings.  