Lawler

This is an action for maintenance and cure. There is no question that libelant suffered injuries that incapacitated him for a period of time. The only issue before the court is whether, at the time he was so injured, libelant was in the service of the ship. The facts disclosed by the record, which included no testimony except libel-ant’s deposition are as follows.

Libelant was employed as a waiter on respondent’s vessel, the S. S. Lurline, under articles that terminated at San Francisco, California, on May 11, 1952. On May 9th, while still at sea, libelant signed new articles for a round-trip voyage from San Francisco to Honolulu. This voyage was subsequently cancelled because of a strike but libelant’s rights, if any, were not thereby affected. It was libelant’s testimony that it was customary on the coastwise vessels to sign articles at sea for the ensuing voyage; that in the instant case the articles in effect on May 9th terminated at noon *947 on May lltli and the new articles became effective immediately; that some members of the stewards department had to work on the 11th but, by custom, the members whose home port was San Francisco did not; that they were free to go…