The opinion of the court was delivered by: KAUFMAN
This libel is brought under the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., for injuries sustained by libelants Bartin and Champlin and for the death of libelants Palmer's and Funken's intestates when the Liberty ship SS Henry Bacon was torpedoed by enemy bombers and sank in the waters of the north Atlantic on February 23, 1945.
It was consolidated at the trial with the libel in the case of Flora Haviland McGrath against South Atlantic SS Line, without prejudice to the rights of respondent there to assert certain defenses, which were raised by exceptive allegations. The libel in the McGrath case was also brought for death of libelant's intestate arising from the sinking of the SS Henry Bacon.
By order of the court the issues of liability only were tried, the question of damages being reserved until after a decision herein.
Libelants' intestates Lynn R. Palmer, Frederick C. Funken and Donald F. Haviland, and libelants George Bartin and Lawrence E. Champlin were employees of the United States of America and members of the crew of the SS Henry Bacon.
The SS Henry Bacon was owned by the United States of America. Between November 9, 1944 and November 16, 1944, it was under annual inspection by the United States Coast Guard, Marine Inspection Division, at the Port of Boston. The hull inspector examined and tested fire fighting and all lifesaving equipment, including lifeboats, life rafts, individual life preservers, provisions and appurtenances required in lifeboats and the vessel's lifeboat launching equipment, comprising all davits and blocks and falls. The SS Henry Bacon was equipped with three standard rowing lifeboats with a capacity for 31 persons each and one motor lifeboat with a capacity for 25 persons. The No. 1 and No. 3 lifeboats were located on the starboard side of the boat deck, while the No. 2 and No. 4 lifeboats were on the port side of the boat deck, the No. 4 Boat being equipped with a motor. In addition, the vessel was equipped with four life rafts, mounted on steel structures, two of which were located on each side of the forward deck and two on each side of the aft deck. In each pair of these rafts, one had a carrying capacity of 20 persons and the other a capacity of 18 persons. There were also two smaller rafts on deck with a carrying capacity of 15 persons each. All the rafts could be released automatically and were inspected and approved.
The Henry Bacon was supplied with 55 life jackets or life preservers for the members of the crew, with 25% additional ones located in two boxes on the boat deck, and 18 ring buoys. In addition, the armed guard were provided with their own life preservers. All the boat davits were examined for fractures, bends or breaks and found in perfect condition. The vessel's holds and bilges were examined for leaks in the vessel's hull and bottom and were found in good condition. The steering apparatus, including the rudder, quadrant, steam steering engine, manual steering and telemotor system were examined and tested by both the hull and boiler inspectors in the steering engine room and were found in satisfactory condition and good working order.
Before leaving Boston a fire drill and a boat drill were conducted, with at least one boat fully manned and launched in the water. The vessel's boilers, main engine, fire pumps, evaporator, circulating pump, generators, telephone system and steering apparatus, together with appurtenances, were inspected and approved. The telemotor pipe lines were constructed of copper tubing.
An assistant engineer for the vessel's agent and representing the United States was aboard the Henry Bacon supervising the repairs which were required to make the vessel seaworthy in compliance with the Marine Inspection Division of the Coast Guard. The vessel was declared in A-1 seaworthy condition before she left the Port of Boston, and a certificate to that effect was issued on November 16, 1944.
The vessel sailed from Boston on November 17, 1944 for New York via the Cape Cod Canal, Long Island Sound and the East River. It carried 280 tons of permanent rock ballast and made the voyage in good weather and without any incident. The vessel arrived in New York on November 19, 1944, at Pier 60, North River, and during its stay in New York certain minor repairs were effected under the personal supervision of the Government's representative and the ship's chief engineer.
At the Port of New York, on November 21, 1944, shipping articles were signed.
When the SS Henry Bacon departed from the Port of New York on December 4, 1944, she was in A-1 seaworthy condition, laden with war cargo, and fully equipped and supplied for a trans-Atlantic voyage. The vessel sailed in convoy bound for the United Kingdom for orders. The weather was fair and the seas were moderate. The lifeboats were rigged outboard and fire and boat drills were conducted weekly after putting to sea.
The vessel arrived in the United Kingdom on December 18, 1944, and after calls at several intermediate ports for naval orders and routing instructions, the vessel departed from Scotland in convoy for Murmansk, Russia. The voyage was made under fair weather conditions and the SS Henry Bacon arrived at Murmansk (Kola Bay) on January 17, 1945, where her cargo was discharged.
While at the Port of Murmansk, 2,000 tons of sand ballast were placed in the Nos. 2, 3, 4 and 5 holds of the Bacon. At the request of the British and American military authorities, 19 Norwegian refugees were placed aboard the Bacon for transportation to the United Kingdom.
The Bacon departed from Murmansk on February 17, 1945 with a draft of 14 feet forward and 18 feet aft, in a convoy of about 40 ships. The vessel was fully manned with a crew of approximately 41 seamen and a Naval armed guard complement of about 28 enlisted sailors. On the day of departure, the Bacon's steering apparatus was tested and found in good working order and she was fully equipped, manned and in A-1 seaworthy condition.
Two days out the Bacon ran into heavy weather which culminated in a severe storm during the night of February 19th. Seas of thirty to forty feet, driven by forty-five mile an hour winds, swept across her main deck, causing the ship to pitch and roll. Other vessels were separated from the convoy and displayed distress signals which were visible aboard the Bacon. The Bacon herself temporarily lost contact with her companion ships when she suffered engine difficulties, but regained her position and continued voyage with the convoy.
More inclement weather was encountered on the 21st, and by the night of the 22nd the Bacon was in the midst of a severe Arctic storm. Winds of seventy-five miles per hour buffeted the ship and waves as high as forty feet lashed the main deck, the boat deck, and even the flying bridge. The binnacle was washed off the poop deck by the seas; lifeboat No. 4 was thrown from its cradle onto the deck with its bow stove in and its forward davit damaged.
A breakdown in her telemotor system forced the Bacon to separate from the convoy during the course of the storm on the night of the 22nd. Repairs were effected in rolling seas within two hours and an attempt was made to overtake the convoy, which, by midnight of February 22nd, was still in sight not more than a quarter of a mile off, as the blue stern light of one of its vessels could be discerned from the Bacon's decks. But by three-thirty of the morning of the 23rd, the faint silhouettes of the rocking hulls of the convoy were observed for the last time as the Bacon lost contact with the other ships when her motors stopped and she started to drift.
When the Bacon again got under way, she pursued the course set for the convoy but by early afternoon of the twenty-third as yet no sign of other vessels had been observed although a lookout had been posted in the crow's nest to maintain constant and vigilant watch. Wartime regulations forbade the use of radio communication, and the Captain, after conferring with the ship's officers, determined to retrace the Bacon's course for an hour on the chance that the convoy had been overtaken and passed during the calm weather which followed in the wake of ...