77 S. Ct. 443, 1 L. Ed. 2d 493 (1957); Ammar v. American Export Lines, Inc., supra.
Even failure of an absolute statutory duty does not impose liability unless causally connected with the injury. In Nolan v. Greene, 383 F.2d 814-817 (6th Cir. 1967), failure to maintain statutorily mandated fire extinguishers aboard ship, was held in no way causally related to seaman drowning. Smith v. United States, 66 F. Supp. 933 (D.C. Md. 1946), aff'd, 4 Cir., 159 F.2d 247, cert. denied, 331 U.S. 849, 67 S. Ct. 1735, 91 L. Ed. 1858, specifically involved alleged failure to maintain a proper "slop chest". Plaintiff claimed that he contracted tuberculosis from standing watch with wet feet because the "slop chest" did not have his size boots. The factual issues were determined against plaintiff, including failure to prove that the lack of boots "caused" the tuberculosis.
Plaintiff may have been ashore to purchase supplies by reason of the supplies not being aboard ship in a "slop chest". He may also have remained ashore to "sign-on" foreign articles because the shipping commissioner refused to board the ship by means of the rigged Jacob's ladder. These two reasons, as well as shoreside recreation afforded the occasion for being ashore at the time and place that plaintiff was injured, but none of these reasons, singly or in conjunction with any other in any way caused plaintiff to fall and injure his leg. I find no causal connection whatsoever, either proximate, direct, substantial, remote, or slightest to the least extent (whatever may be the correct test) between the alleged unseaworthiness and/or negligence of defendant and plaintiff's injuries, irrespective of whether the version of plaintiff or defendant is accepted.
Having found as a fact that plaintiff fell while trying to avoid a friendly blow from a fellow crew member, it is appropriate to consider whether this could in some way give rise to a cause of action. Although cases have allowed recovery on the doctrine of unseaworthiness where a member of the crew was physically attacked by another crewman, it would appear that the assailant must be shown to have a vicious nature. Nowery v. Smith, 69 F. Supp. 755 (D.C.Pa. 1946); aff'd 161 F.2d 732 (3rd Cir. 1947); Jones v. Lykes Bros. SS Co., Inc., 204 F.2d 815 (2nd Cir. 1953), cert. denied, 346 U.S. 857, 74 S. Ct. 72, 98 L. Ed. 370. Notice of the dangerous propensities, however, is not essential, if the crew member is shown to be vicious. Boudoin v. Lykes Bros. SS. Co., Inc., 348 U.S. 336, 75 S. Ct. 382, 99 L. Ed. 354 (1955). In the present case there is nothing to indicate that the member of the crew who was sparring with plaintiff had any of the characteristics necessary to impose liability. The evidence is directly to the contrary; that the sparring was entirely friendly and voluntarily participated in by plaintiff. Therefore, no doctrine of unseaworthiness is applicable.
There is nothing to indicate that Jacobs acted in any way negligently toward plaintiff in sparring with him in the place and manner that occurred. No evidence indicates that he foresaw any danger to plaintiff. Even if deemed negligent as between Jacobs and plaintiff, and even though both members of the crew were in the course of their employment while ashore, their action in sparring with each other was not in furtherance of the ship's business and the negligence of Jacobs, if any, toward plaintiff would not be imputed to the shipowner. Robinson v. Northeastern Steamship Co., 228 F.2d 679 (2d Cir. 1956); cert. denied, 351 U.S. 937, 76 S. Ct. 834, 100 L. Ed. 1465 -- fellow crewman negligently assisted intoxicated plaintiff-crewman.
Even if plaintiff's version of the events are accepted, the shipowner would not be liable under any theory of unseaworthiness or negligence. Plaintiff asserts he tripped over a log at the side of a public road in broad daylight. The doctrine of unseaworthiness would not apply in such a situation. Neither the log nor the public road were any part of the ship or under the shipowner's actual or legal control or right of control at any time. The duty of the shipowner is to supply and keep in order the ship and the gear and appliances appurtenant thereto. The Osceola, 189 U.S. 158, 23 S. Ct. 483, 47 L. Ed. 760. It is impossible to contend that the public road was in some way a part of or an appurtenance to the ship and its gear. Although possibly a convenient approach and exit from the landing pier, and also an appropriate way between the pier and the building where the "sign-on" was to occur. There is no evidence that this was even a necessary way. The doctrine of unseaworthiness does not extend to injuries caused by instrumentalities ashore having no connection with the vessel. Harling v. United States, 416 F.2d 405, 406 (9th Cir. 1969), cert. denied, 397 U.S. 917, 90 S. Ct. 922, 25 L. Ed. 2d 97.
There is no theory of negligence upon which the shipowner may be held liable for the log being in the side of the roadway. There is no showing that the shipowner or any members of the crew knew or should have known of the presence of the log, or that it presented any risk of harm to plaintiff. Even if, in fact, the shipowner knew of the presence of the log, to thereupon impose on the shipowner the duty, at its peril, to either remove the log (which it had no apparent legal right to do), or to warn plaintiff of such an obvious physical hazard, would be to impose a form of absolute guarantee for the safety of the crewman far beyond any present concepts of negligence, whether on land or sea.
In Trost v. American Hawaiian Steamship Co., 324 F.2d 225 (2d Cir. 1963), cert. denied, 376 U.S. 963, 84 S. Ct. 1125, 11 L. Ed. 2d 981, a ship's officer who stepped around an open trap door inside a dimly lit building was held not to impose liability upon the shipowner, where the purser who was following the ship's officer was not warned by the officer and fell through the trap door. The language of that case is appropriate (p. 227): --
"For even if human beings in general have a legal, as well as ethical obligation to abide by the Sermon on the Mount and to look out for one another, but see Restatements of Torts § 314, it hardly would seem to be part of the function of a captain to ensure that his officers are aware of apparently visible obstacles on shore while miles from the ship. It appears, therefore, that the fact that the captain and the purser were 'in the course of their employment' in terms of time and place, is not sufficient; a shipowner may not be held liable unless the particular act performed negligently was also in the scope of employment of the negligent employee. We do not consider it an element of the captain's employment to be on guard for the errant footsteps of his land-based purser and thereby to impose derivative liability on the ship."