a suit under the Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq., but not in this proceeding.
I think, however, that the respondent is liable for the original injury. Among the obligations, the breach of which make an employer liable for 'negligence' under the Jones Act, 46 U.S.C.A. § 688, is that of seeing to the safety of the crew. Koehler v. Presque-Isle Transp. Co., 2 Cir., 141 F.2d 490. This means, among other things, doing what is reasonably necessary to protect a seaman from physical violence by another member of the crew.
In the present case the officer in charge of the launch and in command of the men in it unquestionably knew that there was going to be a fight between two of them when they got back to the ship. Not only did he do nothing to prevent it but his statement to 'wait till they got back on the ship' taken in connection with the fact that it was also said by some one 'When you get aboard the ship then you can have it out' looks almost as though he were promoting it. I do not say that failure on the part of a ship's officer to prevent two members of the crew from settling a dispute by fighting it out would always and under all circumstances amount to negligence, although it might be observed that if two men on shore engaged in a fist fight in a public place any policeman who did not try to stop it would certainly be derelict. What I do hold is that where a ship's officer knows that a drunken sailor, aggressively quarrelsome, in possession of a whisky bottle, and 'to all accounts in a bad mood' (Log) is going to fight another member of the crew aboard ship it is his duty to do what he can to prevent the encounter. In the present case the officer from the launch was on deck some eight minutes before Bennett got there and most of the other officers of the ship were also where they could have been apprised of what was going to happen. The probabilities are that they all knew it, although a fact finding on that point is not necessary.
Of course, the actual knifing occurred so quickly that none of the officers could have prevented it and it is not intended to imply that they knowingly countenanced anything of that sort. Still it must be remembered that this was not to be a boxing match or sporting event but a 'grudge' fight, with a drunken sailor involved, and it was not beyond the realm of foreseeability that a weapon might be used.
The fact that the injured party happened to be a bystander is immaterial. 'If the actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw not should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.' Restatement, Torts, Sec. 435.
'If the realizable likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby.' Restatement, Torts, Sec. 449. The breach, of course, was of the duty to protect the personal safety of Jensen. Bennett was the third person whose criminal act caused the harm.
Jensen was not guilty of contributory negligence. 'It is not contributory negligence for a plaintiff to expose himself to danger in a reasonable effort to save a third person * * * from harm.' Restatement, Torts, Sec. 472. Nor can it be called an independent intervening cause.
The foregoing statements of fact and conclusions of law may be taken as the Court's findings and conclusions. In addition I find:
(1) The libellant has suffered damage as the result of his injury in the amount of $ 5,000.
(2) The libellant is entitled to an award of maintenance for a total of 42 days.
Judgment may be entered for the libellant in accordance with the above.
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