Smith v. Lauritzen

• Citation: 201 F. Supp. 663
• Decision Date: 01 February 1962
• Docket Number: No. 28343.,28343.
• Parties: Arthur SMITH v. J. LAURITZEN v. JARKA CORPORATION OF PHILADELPHIA.
• Court: U.S. District Court — Eastern District of Pennsylvania

201 F. Supp. 663

Arthur SMITH v. J. LAURITZEN v. JARKA CORPORATION OF PHILADELPHIA.

No. 28343.

United States District Court E. D. Pennsylvania.

February 1, 1962.

John Dorfman, Dorfman, Pechner, Sacks & Dorfman, Philadelphia, Pa., for plaintiff.

John T. Biezup, Rawle & Henderson, Philadelphia, Pa., for defendant.

JOSEPH S. LORD, III, District Judge.

Plaintiff, a longshoreman, was injured when attacked by a fellow longshoreman while both were working aboard defendant's vessel. Suit was brought against defendant as the owner of the vessel, alleging defendant's negligence and unseaworthiness of the ship. Defendant having previously joined plaintiff's employer as third party defendant, now moves for summary judgment.

An examination of the pleadings and of plaintiff's deposition indicates that the sole cause of plaintiff's injuries were blows about his head administered with two cargo hooks in the hands of his fellow employe. The attack was without warning or provocation.

We think that Boudoin v. Lykes Brothers Steamship Co., Inc., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354 (1955), is here controlling on the issue of seaworthiness and requires that defendant's motion be denied. In Boudoin the Supreme Court upheld a finding by the District Court that an attack by a seaman was a breach of the warranty of seaworthiness where the attacker was a "person of dangerous propensities and proclivities", a "person of violent character, belligerent disposition, excessive drinking habits, disposed to fighting and making threats and assaults."

In Keen v. Overseas Tankship Corp., 194 F.2d 515, 518 (C.A.2, 1952), it was said:

"* * * We can see no reason for saying that, although the owner is liable if the ship's plates are started without his knowledge, he is not liable if he signs on a homicidal paranoiac, whose appearance does not betray his disposition. * * * Applied to a seaman, such a warranty of seaworthiness is, not that the seaman is competent to meet all contingencies; but that he is equal in disposition and seamanship to the ordinary men in the calling. * *"

Plaintiff's deposition in this case gives some indication that his attacker had been receiving mental treatment. We cannot say as a matter of law that plaintiff's attacker was "equal in disposition and seamanship to the ordinary men in the calling."

Defendant recognizes the Boudoin case but argues that a longshoreman, although a seaman for the purpose of being entitled to the warranty of seaworthiness, Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), is not a member of the crew for the purpose of finding that his incompetence might render the ship unseaworthy. We fail to see the distinction. The rationale for Sieracki is that a longshoreman is doing work traditionally done by a seaman. A seaman's...