The opinion of the court was delivered by: BARD
This is a seaman's action in admiralty for damages for personal injuries and for maintenance and cure. On the basis of the pleadings and the testimony, I make the following special
1. Libellant is Pleasant M. Linville, a merchant seaman, 47 years old, and a resident of Marcus Hook, Pennsylvania.
2. Respondents are the United States of America (hereinafter called respondent), and Tankers Company, Incorporated, a Delaware corporation.
3. No evidence whatsoever was presented to show that Tankers was in any way liable for libellant's accident and resulting injuries.
4. Respondent owned, operated and controlled the United States Navy Tanker 'Tomahawk' at all times mentioned herein.
5. On December 30, 1948 in Los Angeles, California, libellant was employed aboard the 'Tomahawk' as an able bodied seaman for $ 225.46 per month and overtime at $ 1.12 1/2 per hour for a voyage to European ports and return to Continental United States for a term not exceeding twelve months.
6. The 'Tomahawk' sailed from San Pedro, California, on January 1, 1949 with a cargo of high-test gasoline bound for Germany. It sailed from Germany on or about February 6, 1949 bound for New York with no cargo except water ballast.
7. On the trip to New York the deck crew was ordered to clean out the rust from the cargo tanks, which rust had accumulated over some period of time. This work was commenced a few days before February 12, 1949.
8. The weather on February 12, 1949, as recorded in the ship's log by the officer who had the 0400 to 0800 watch, was 'O'cast Rough SW sea & swell vessel rolling and pitching heavily shipping seas over bow and main deck. Lookout posted on flying bridge due to heavy weather good visibility hazy horizon'.
9. Libellant was assigned to the 4 to 8 watch for his normal duties but the job of cleaning the tanks required the services of the entire deck crew, and libellant on that day reported for tank cleaning duty at 8:30 A.M. at the starboard opening of the No. 1 main tank.
11. The point where libellant was required to work was 20 to 25 feet aft of the forward bulkhead at the bow of the vessel.
12. About 9 A.M. libellant and his partner put on their rain gear. At 10 A.M. the tank clearing detail ceased work and went below for coffee. The ...