SWAN, Circuit Judge.
This is a libel for maintenance brought by an Egyptian seaman who was employed as an oiler on the appellant's merchant vessel "Samuel Ashe."
In 1943, while serving on an American vessel, Ahmed became sick and was hospitalized at the United States Marine Hospital in Puerto Rico. From there he was transferred in July 1943 to the Marine Hospital at New Orleans, Louisiana, where his condition was diagnosed as "tuberculosis of the lung moderately far advanced." In the hospital his condition improved and at the end of August his sputum was found to be negative. On December 9, 1943 he was discharged at his own request against medical advice; he was cautioned not to work for several months and then to do only light work for some time. About a week after being discharged, Ahmed sought employment as an oiler on a ship operated by Spencer Kellogg Company. He received the routine physical examination and was passed as fit for duty. The voyage for which he signed on ended January 19, 1944. Between that date and April 18, 1944 he was unemployed because he found no work. On the latter date he signed on as an oiler on the steamship Samuel Ashe after a physical examination in which he was again found fit for duty. Both on this and the previous examination his chest was tested only stethoscopically. In neither examination did he volunteer information that he had previously been treated for tuberculosis and advised not to work for several months. At the trial he testified, and the court found, that during the period of approximately four months between his discharge from the New Orleans hospital and his signing on for the voyage of the Samuel Ashe he felt in good health and believed that he was well enough to perform the duties of an oiler on ships.
As already stated, Ahmed became ill during the voyage of the Samuel Ashe and had to undergo treatment for advanced tuberculosis of the lungs at various hospitals from June 6, 1944 to July 8, 1946. The last of these was the Marine Hospital, Neponsit Station, Rockaway Beach, New York. There he was a rather restive patient. He was discharged on the date last mentioned to outpatient status with a notation that he was emotionally unstable and not suited for institutional care. He continued to receive outpatient treatment at Neponsit Station until October 6, 1948.
The appellant urges that a seaman who is sick and holds himself out as fit for duty cannot recover maintenance and cure. The case relied upon for this proposition, Tawada v. United States, 9 Cir., 162 F.2d 615, does not support so broad a contention. There it was held that a seaman who, knowing that he was afflicted with a disabling disease, concealed the fact and held himself out as fit, was not entitled to maintenance. Here the court found that Ahmed believed himself in good health. The appellant argues that Ahmed should have called his quiescent tubercular condition to the attention of the physician who examined him as a prospective member of the crew. No authority has been cited which supports this argument. On the contrary, long ago it was held that a seaman
The appellant's second contention is even more tenuous than the first. It is argued that by obtaining at his own request a discharge to outpatient status from the Neponsit hospital he forfeited his right to maintenance. To support this proposition the appellant cites cases in which the seaman left the hospital without leave of the authorities,