Weller

■ This is an action for maintenance and cure for the period extending from December 5, 1951, the date libelant was last discharged from the Marine Hospital, to May 1, 1953. The action has heretofore been dismissed with prejudice as to respondent Pacific Atlantic Steamship Company. Li-belant, who ’has been hospitalized intermittently for tuberculosis since November 26, 1945, bases his claim on the ground that the disease first manifested itself while he was in the service of the S. S. Robert G. Harper, a vessel owned by repondent United States of America. Respondent resists the claim on the grounds that libelant breached a warranty of physical fitness when he j oined the ship and that, furthermore, he is disqualified by reason of certain conduct during his periods of hospitalization.

Respondent’s first defense is not supported by modern decisions. The seaman who signs on a ship without knowledge that his system contains the germs of a disease that may later incapacitate him is not thereby barred from claiming maintenance and cure if the disease manifests itself during his service with the ship. Calmar S. S. Co. v. Taylor, 303 U.S. 525 , 58 S.Ct. 651 , 82 L.Ed. 993 ; Rey v.…