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February 15, 1972


Joseph S. Lord, III, Chief Judge.

The opinion of the court was delivered by: LORD, III

JOSEPH S. LORD, III, Chief Judge.

 This is a maritime action by a merchant seaman against his shipowner-employer to recover damages for personal injuries sustained while in the service of defendant's vessel. The complaint has two counts, the first for damages, alleging that defendant failed to provide a seaworthy vessel, and the second for maintenance and cure. We have jurisdiction under 28 U.S.C. ยง 1333.

 The case involves a fight between plaintiff and a third cook on the vessel, Leroy Dorsey. Naturally, their versions of what took place differ dramatically.

 Plaintiff spent the evening of January 11, 1968 from 6:00 p.m. until 10:00 p.m. at the Seaman's Institute in Cam Ranh Bay. When he left the club, he says he was neither first-class sober, nor drunk. Two of the ship's crew testified on deposition that they saw the plaintiff there at 8:30 p.m., and that he was staggering and argumentative. Little weight can be attached to their observations at that time, since the fight on the ship did not take place until 11:30 p.m., ample time for their characterization of the plaintiff to become no longer accurate.

 Dorsey, meanwhile, had been sitting for a few hours in his robe and shower shoes watching television in the crew recreation room. He had been there alone until almost 11:30, when the chief steward, Horace Brown, joined him. A few minutes later plaintiff entered the recreation room after hitching a ride back to the ship. While he places the blame on Dorsey for the argument which then ensued between them, Brown's testimony lends more credence to Dorsey's version of what happened. Brown testified that plaintiff just walked right into the room and turned the television off without consulting either him or Dorsey. Dorsey turned it back on, while plaintiff insisted that it be kept off. When a heated argument began between plaintiff and Dorsey, Brown left the room. There are no witnesses to the initial stages of the scuffle which then took place. However, after a crowd gathered outside the recreation room, Brown returned and saw plaintiff sitting on top of the water fountain in the room clinched with Dorsey. This was confirmed by third mate Hubert Spires, who was on watch from 4:00 p.m. until midnight. Reacting to the crowd outside the door, he arrived to see plaintiff slide off the water fountain to the deck pulling Dorsey down with him.

 Spires separated the two men. Neither one was injured at this time. He sent plaintiff to the crew mess room, and told Dorsey to remain in the recreation room. Both obeyed without argument. Spires then went down to the cargo hold. Coming back up some five minutes later he found that a crowd had gathered around the door to the recreation room again. When he entered the room, he found plaintiff and Dorsey struggling, with Dorsey on top, and blood all over the deck. Again, they were both separated, neither man giving third mate Spires any trouble.

 It turned out that the blood on the deck was plaintiff's. He was taken to a hospital where he received twenty-three stitches in his head for six separate cuts. He also complained of back pains, while Dorsey was unharmed save for a cut lip which did not require treatment.

 Plaintiff alleges that the six head cuts were caused by being struck six times on the head with a coffee mug in an unprovoked attack by Dorsey. Dorsey, on the other hand, claims that plaintiff attacked him with the mug, and that he hit him with it but once in defending himself after gaining control of it during the struggle. The court is without sufficient evidence to conclude that the mug was the cause of the six head cuts, rather than some object or objects in the room with which plaintiff came in contact during the fight. Moreover, though there are discrepancies in the stories of both Dorsey and plaintiff as contrasted with the testimony of other witnesses, plaintiff's account of an unprovoked attack from behind with the mug borders on the incredible. After being separated when first found scuffling in the recreation room, plaintiff was sent to another room in the ship, while Dorsey was told to stay in the recreation room. Since they were again fighting in the recreation room five minutes later, the clear implication is that plaintiff returned there to confront Dorsey again. It is thus highly unlikely that he was at this time struck repeatedly from behind with a mug in an unprovoked surprise attack.


 The warranty of seaworthiness is often referred to as a species of liability without fault, but "it does not mean that the shipowner is liable for injuries 'resulting from every sailor's brawl.'" Boudoin v. Lykes Brothers Steamship Company, Inc., 348 U.S. 336, 339, 75 S. Ct. 382, 384, 99 L. Ed. 354 (1955). "The crucial consideration is whether the ship was reasonably fit to permit the seaman to perform his task aboard her with reasonable safety." Brown v. Dravo Corporation, 258 F.2d 704, 706 (C.A. 3, 1958).

 In Boudoin, the Court, reversing the Court of Appeals, held that the District Court could find a violation of seaworthiness if a crew member with a savage disposition attacked another seaman. "A seaman with a proclivity for assaulting people may, indeed, be a more deadly risk than a rope with a weak strand or a hull with a latent defect." Boudoin, supra, 348 U.S. at 339-340, 75 S. Ct. at 385.

 The Court placed great reliance on a decision by Judge Learned Hand, adopting his standard for a finding of a breach of the warranty of seaworthiness in an assault case. A violation is shown whenever the attacking seaman was a man not fit to serve, unequal in disposition to the ordinary men of that calling. Jones v. Lykes Bros. Steamship Co., 204 F.2d 815 (C.A. 2, 1953); ...

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