The opinion of the court was delivered by: WRIGHT
This suit is brought under the Suits in Admiralty Act against the United States as owner and operator of the sea-going tug, M/V Black Rock. Two causes of action are alleged, one under the Jones Act, 46 U.S.C.A. § 688, claiming damages and the other for maintenance under the general Admiralty law. Libelant's claim in damages is predicated on injuries he allegedly received while a member of the crew of the M/V Black Rock when he jumped from the bow of a sinking vessel on which he had been sent by the Master of the Black Rock in order to make a towing hawser fast to her. Respondent admits libelant jumped as alleged but maintains that he volunteered to go aboard the sinking vessel and, in any event, any injuries he may now have are in no way related to his jump. The issues of fact and law having come on to be heard on the pleadings and proofs of the parties and due deliberation having been had, the court now makes the following findings of fact and conclusions of law.
1. The Motor Vessel Black Rock is an ocean-going tugboat approximately 196 feet in length and carries a complement of thirty-six officers and men. On June 24, 1944 the vessel was owned by the United States and operated by a general agent.
2. The libelant, Joseph Koslusky, is fifty-eight years old, and at the time of the institution of this action resided in the jurisdiction of the court. He has been a merchant seaman for over thirty-five years and has served on various merchant vessels owned by the United States and operated in connection with the war effort of this country during World War II. He signed on the M/V Black Rock on May 16, 1944 and served aboard her as oiler until September 14, 1944.
3. On June 24, 1944 The Black Rock was engaged in towing operations in the English Channel. In the early morning of that date the vessel received orders from the British Admiralty to go to the assistance of a British merchant vessel which was in distress as a result of bombing, torpedoing or having struck a mine. The Black Rock arrived alongside The Fort Norfolk at 9:15 A.M.
4. Libelant had stood the 4 to 8 watch and was in the mess hall having breakfast when The Black Rock was ordered to the assistance of The Fort Norfolk. The majority of the members of the crew at that time were assembled on the after part of the main deck. The Captain, the Purser and a member of the Navy gun crew were on the after part of the boat deck.
5. On inspection of the condition of The Fort Norfolk the Captain of The Black Rock was of the opinion that she would sink rapidly. He, therefore, advised the officers aboard a British naval vessel standing by that he would not order his men aboard The Fort Norfolk to put a line on her or to perform other salvage services.
6. After The Black Rock's Master refused to order his crew aboard The Fort Norfolk a discussion among the men who were standing on the after part of the main deck ensued, as a result of which some members of the gun crew volunteered to go aboard The Fort Norfolk. Three members of the Navy gun crew boarded The Fort Norfolk by means of a Jacob's ladder which was hanging from her side. After the Navy men boarded The Fort Norfolk three members of the merchant crew including libelant volunteered to and did board the vessel.
7. On boarding The Fort Norfolk several of the men including Koslusky went to the bow of the vessel for the purpose of receiving the line from The Black Rock and making the same fast to The Fort Norfolk. A line was passed from the tug to The Fort Norfolk and actually made fast to her bow bitts. The slack was then taken up by using the capstan on The Black Rock.
8. As the slack on the towing hawser was being taken up, all of the seamen except Koslusky moved from the bow to the middle of the vessel. At this point The Fort Norfolk began to break in half and the seamen all ran down the Jacob's ladder which was still over the side of the vessel. Koslusky, isolated in the eyes of the vessel by swinging booms and other loose gear, jumped into the water from the bow. At the time the bow was rising as the stern was sinking and various witnesses have established the distance from the bow to the water from 50 to 75 feet.
9. Koslusky and the other seamen who had been on the sinking Fort Norfolk swam to The Black Rock or to a British net tender which had come alongside. On reaching The Black Rock Koslusky climbed up the Jacob's ladder which had been thrown over the side for the purpose of taking the men back aboard.
10. Libelant showed no particular ill effects from his jump into the water on his return to the vessel. He continued to do his work until September 14, 1944 when the vessel arrived at Plymouth, England, and he was taken by the Chief Engineer to the 115th General Army Hospital there. From this hospital he was transferred to the 67th General Army Hospital and on November 5, 1944 was repatriated to the United States aboard The Brazil, a hospital ship. On arrival in the United States on November 16, 1944 he was admitted to the United States Marine Hospital at Brighton, Massachusetts, from which he was discharged on November 29, 1944 with a recommendation of thirty days convalescence.
11. Thereafter libelant received treatment as an outpatient at the United States Public Health Service Hospital at 67 Hudson Street, New York, on several occasions and was discharged as fit for sea duty in May of 1945. On May 29, 1945 he was examined and passed for sea duty on the S/S Grace Abbott upon which he served as an oiler. He left that vessel on August 22, 1945 to enter a hospital at Balboa Heights, Canal Zone, where he remained for several weeks. He was returned to the United States and on October 5, 1945 he entered the Marine Hospital at Ellis Island and the U.S. Marine Hospital at Stapleton, Staten Island, from which he was discharged on September 17, 1951 as permanently unfit for duty at sea. He now resides at Sailors Snug Harbor, Staten Island, New York, and is disabled from performing any duties.
12. Libelant claims that his present deafness, blindness in his left eye, spondylolisthesis, or a slipping forward of the fifth lumbar vertebra, and encephalopathy, a degenerative disease of the brain, are all directly attributable to his jump from the bow of The Fort Norfolk.
13. Prior to his service aboard the Black Rock he had been injured when the S/S Florence McDonald, the vessel on which he was serving at the time, was torpedoed in June of 1943. He received various medical treatment for his injuries and on November 8, 1943 was admitted as a patient at Gladstone, a rest or convalescent home for seamen. At the time of his admission to Gladstone he gave a history of gonorrhea and syphilis in 1932. He also stated that for two months prior to ...