The opinion of the court was delivered by: KALODNER
This is a libel in personam brought against Lyke Bros. Steamship Co., Inc., incorrectly designated in the libel as Lykes Brothers Steamship Co. The libel also designated as defendants the United States of America and the United States Maritime Commission, but the Libellant consents to dismissal of these defendants on the basis of the decision of this court by Judge Kirkpatrick in Burkholder v. United States of America, D.C. 1944, 56 F.Supp. 106.
The theory of the action is negligence, and the narrow question for determination is whether the Libellant sustained his injuries as a result of the failure of the Master of the steamship on which Libellant was employed, to have the lifeboats fixed in the position prescribed by the Coast Guard Regulations.
The case was submitted to the court on the pleadings, additional testimony and argument of counsel. Accordingly, I make the following
1. At all times herein the Steamship "Syros" was owned, operated and controlled by Lykes Bros. Steamship Co., Inc., and the Libellant was an employee of Lykes Bros. Steamship Co., Inc.
2. At all times material hereto the Steamship "Syros" was under time charter to the United States of America, but the Respondent Lykes Bros. Steamship Co., Inc., operated and controlled the vessel and employed the officers and crew.
3. In March, 1942, prior to sailing from the United States there were installed upon the Steamship "Syros" sliding lifeboat chocks to facilitate launching of the lifeboats. These chocks were designed and installed by Maryland Dry Dock Company.
4. On the 16th day of April, 1942, the United States Coast Guard issued its Regulation:
"153.3 Lifeboats on Ocean and Coastwise Vessels
"(b) Readiness for Lowering. Masters shall with due regard to safety, cause all lifeboats attached to davits other than gravity davits to be properly griped in the outboard position as will allow immediate lowering in case of emergency. All boat covers are to be removed when the vessel is at sea and the guys rigged from the davit heads. All falls gear and equipment are to be ready for immediate use." Dated April 16, 1942. In Federal Register April 18, 1942, Vol. 7, No. 76, Page 2908.
5. On May 26, 1942, the Steamship "Syros" was one of a convoy of vessels sailing through the Barents Sea bound for Murmansk, U.S.S.R.
6. The Steamship "Syros" was sunk as a result of enemy action when torpedoed in the Barents Sea while bound for Murmansk, U.S.S.R., on May 26, 1942, at about 1:00 A.M. The vessel sank within two minutes or so after being torpedoed.
7. About 1:00 A.M. on May 26, 1942, the Libellant was in the messroom on the Steamship "Syros" when the alarm bell sounded. He went to the galley and then through a passageway proceeding toward one of the upper decks. While he was thus proceeding a torpedo struck the ship. When the Libellant attempted to ascend to the boat deck, which was two decks above the messroom where he had been at the time of the sounding of the alarm bell, he was ...