The opinion of the court was delivered by: BARD
This action was brought by Benjamin G. Mitchell against the United States of America and the War Shipping Administration for damages and maintenance and cure.
I make the following special
1. The libellant is Benjamin G. Mitchell.
2. The respondents are the United States of America and the War Shipping Administration.
3. The merchant vessel 'John Philip Sousa' was at all material times owned by the United States of America through the War Shipping Administration. She was operated by Wessel, Duval & Co., Inc., under an agreement entered into between that company and the War Shipping Administration.
4. Libellant enlisted in the United States Army in June, 1942, and was honorable discharged in March, 1943, because of over-age.
5. After his discharge from the United States Army, libellant secured a position in industry as an inspector of airplane parts, and was employed in that capacity until December, 1943.
6. In January, 1944, libellant entered the United States Merchant Marine service as a messman.
7. On July 28, 1944, after having completed two previous voyages, libellant signed on board the 'John Philip Sousa' as a messman.
8. Shortly after going aboard the 'John Philip Sousa,' libellant was assigned by the vessel's steward to an upper bunk in the steward's department. This bunk was defective, as it had a round piece of metal pipe, two or three inches long, protruding vertically upward from the middle area of the outboard horizontal support, as a result of the 'boost bar' having been previously sawed off at this point. This condition was known to both the steward and libellant at the time the bunk was assigned. This was the only bunk available for libellant, and no other bunk was ever made available for his use, nor was the defective condition corrected.
9. On August 6, 1944, while the vessel was in the port of Philadelphia, Pennsylvania, the ship's purser snapped on the lights in the steward's department forecastle at about one A.M., when libellant was asleep in his bunk, and ordered all hands on deck for inspection by the immigration authorities.
10. Libellant, aroused from his sleep, immediately descended from his bunk. As he was descending, his underwear caught on the protruding piece of metal, which caused him to fall to the deck, sustaining a severe jolt in the area of his right hip, side, and back.
11. Because of this fall, libellant was unable to perform his regular duties aboard ship for a period of four or five days during ...