Georges v. American Export Lines, Inc.

• Decision Date: 09 October 1980
• Citation: 77 A.D.2d 26,432 N.Y.S.2d 165
• Parties: , 1981 A.M.C. 808 Assoumany GEORGES, Plaintiff-Appellant-Respondent, v. AMERICAN EXPORT LINES, INC., Defendant and Third-Party Plaintiff-Respondent- Appellant, v. Manuel GALVAO, Third-Party Defendant.
• Court: New York Supreme Court — Appellate Division

Page 165

432 N.Y.S.2d 165

77 A.D.2d 26, 1981 A.M.C. 808

Assoumany GEORGES, Plaintiff-Appellant-Respondent, v. AMERICAN EXPORT LINES, INC., Defendant and Third-Party Plaintiff-Respondent- Appellant, v. Manuel GALVAO, Third-Party Defendant.

Supreme Court, Appellate Division, First Department.

Oct. 9, 1980.

Theodore H. Friedman, New York City, of counsel (Fred R. Profeta, Jr., New York City, with him on brief; Schneider, Kleinick, Friedman, Miller & Weitz, New York City), for plaintiff-appellant-respondent.

Stephen K. Carr, New York City, of counsel (Juan A. Anduiza, New York City, and William J. Troy, III, with him on brief; Haight, Gardner, Poor & Havens, New York City), for defendant and third-party plaintiff-respondent-appellant.

Before MURPHY, P. J., and ROSS, MARKEWICH, SILVERMAN and LYNCH, JJ.

MURPHY, Presiding Justice:

Plaintiff Georges brought this action to recover damages for injuries sustained as a result of an allegedly unprovoked assault by his roommate, third-party defendant Galvao. Both Georges and Galvao were seamen on the S. S. Export Commerce, which was owned by defendant American Export Lines, Inc. They had been on the same "watch" and had roomed together from May 1969 to January, 1973, when the alleged assault occurred.

Georges, a black man, testified that Galvao, from the very first day they had become roommates, had openly expressed his displeasure with the color of Georges' skin. He further asserted that Galvao had threatened him on two occasions. In 1970 in Cadiz, Spain and in 1971 in Leghorn, Italy, Georges stated that Galvao had invited him to fight. Georges had declined both of these invitations because he was older and smaller than Galvao. Plaintiff's testimony suggests that he told the third engineer, Chick, of the threats; it also tends to show that he asked the first assistant engineer, Mittell, for a change of "watch" and room.

Plaintiff further testified that he had filed a complaint with the Coast Guard in 1971 because Galvao slept with a knife under his pillow. Plaintiff admitted that he had never been threatened with the knife. According to plaintiff's testimony, the Coast Guard investigated the complaint, and the knife was never seen thereafter. The Coast Guard files did not reflect any history of this purported complaint by plaintiff.

Georges stated that, on January 15, 1973, he was punched and knocked to the floor in an unjustified and unprovoked attack by Galvao. Plaintiff did not attempt to fight back; he merely fled for his own safety. Plaintiff's medical evidence tended to establish that the assault was the competent producing cause of a permanently disabled herniatic disc.

Plaintiff's case was supported by the testimony of fellow seamen Avila, Capron and Garcia. These individuals confirmed that Georges was very friendly with all the personnel on the vessel while Galvao did not "get along" with any of the personnel. These seamen confirmed Galvao's use of racial epithets and his basic discrimination against black men.

The plaintiff also buttressed his case with the testimony of the bosun named Sununu. The latter maintained that the master, Duplissa, had authorized him to investigate the occurrence and to make a formal oral report. The trial court ruled that Sununu's oral report was an admission that could be introduced into evidence against American. Sununu interviewed the plaintiff, the master, the first engineer, and various members of the crew, some named and others unnamed. The bosun's testimony revealed that the master, Duplissa, and the first engineer, Mittell, had been aware for a period of time of the tensions between Georges and Galvao. The bosun's testimony also reflected the fact the crew was generally aware of the "bad blood" between those roommates.

Duplissa and Mittell averred that they were unaware of any friction between Georges and Galvao. Chick stated that he knew about a minor incident in which the plaintiff threw Galvao's socks away. Both Mittell and Chick believed that Galvao was friendly and one of the best "oilers" whom they had known. American's evidence indicated that Galvao had never been logged, fired or reprimanded during his entire career. In his own testimony, Galvao denied that he had even assaulted the plaintiff on the date under discussion.

Plaintiff's complaint contained causes of action against American based upon (i) the unseaworthiness of the vessel arising from Galvao's vicious nature, (ii) maintenance and cure, and (iii) negligence under the Jones Act in hiring and retaining Galvao in its employ. At the close of plaintiff's case, the trial court dismissed the cause founded upon unseaworthiness because it found that Galvao was not a person of savage or vicious nature, unequal in disposition and seamanship to the ordinary men of the calling. The parties stipulated that the cause founded upon maintenance and cure need not be submitted to the jury. The negligence cause was submitted to the jury and a verdict of $400,000 was returned in favor of Georges against American. Subsequently, the trial court submitted American's third-party claim against Galvao to the jury on the issue of apportionment. The jury found that American was 51% responsible and Galvao was 49% liable. In a resettled order, entered January 4, 1979, the trial court granted American's motion for a new trial based upon excessiveness of the verdict to the extent of directing a new trial upon damages only unless plaintiff stipulated to a reduction of the verdict in his favor to the sum of $150,000. Both Georges and American now appeal from that resettled order.

The first issue presented is whether the trial court correctly dismissed the cause based upon unseaworthiness of the vessel. In resolving this issue and the second issue relating to the evidentiary sufficiency of the negligence cause, the testimony of bosun Sununu will not be considered for the reason later to be explained under the fourth issue. In discussing the first and second issues, the evidence will otherwise be viewed most favorably to the plaintiff (Bihm v. Lykes Bros. Steamship Co., 213 F.Supp. 899, 900, aff'd 323 F.2d 1005).

The warranty of seaworthiness is a species of liability without fault (Boudoin v. Lykes Bros. Steamship Co., 211 F.2d 618, rev'd 348 U.S. 336, 338, 75 S.Ct. 382, 384, 99 L.Ed. 354 and on other grounds 350 U.S. 811, 76 S.Ct. 38, 100 L.Ed. 727). The warranty is not that a seaman is competent to meet all contingencies. The warranty does require that he is equal in disposition and seamanship to the ordinary men in the calling (Keen v. Overseas Tankship Corp., 194 F.2d 515, 518 cert. den. 343 U.S. 966, 72 S.Ct. 1061, 96 L.Ed.2d 1363). If the seaman has a savage and vicious nature, then the ship becomes a perilous place and the warranty is breached (Boudoin v. Lykes Bros. Steamship Co., 348 U.S. at 340, 75 S.Ct. at 385). A plaintiff may show that an assailant's presence created an unseaworthy condition on a vessel through (i) independent evidence with regard to the assailant's temperament and disposition, or (ii) direct evidence showing a vicious and unprovoked attack. In establishing the deficiencies in the assailant's temperament, a plaintiff may show that the assailant was exceptionally quarrelsome, habitually drunk, or had other characteristics making him unfit to serve as a seaman. (1B Benedict on Admiralty § 31 at 3-256 and 3-257 (6th ed. 1976)).

Although Galvao's record before the time of the assault was unblemished, the fact remains that the plaintiff had reported to the officers two threats made by Galvao in Cadiz and Leghorn. These threats, in themselves, constituted some proof that Galvao had a belligerent nature. Moreover, plaintiff's other witnesses confirmed that Galvao had a reputation for being less than friendly, if not for being irascible. Of course, American is not absolved from liability, as a matter of law, simply because Galvao's record theretofore was unblemished (See, Boudoin v. Lykes Bros. Steamship Co., 211 F.2d 618, 620 fn. 3).

The present factual situation is highly analogous to that in Stechon v. U. S. (439 F.2d 792). In Stechon, the Court of Appeals for the Ninth Circuit reversed an award for summary judgment in favor of the defendant shipowner. While that Court found that there was no merit to the negligence claim, if found that a question of fact was presented as to whether the assailant had an evil disposition. The Court emphasized, as well may be done in this case, that plaintiff's proof did not indicate a "sailors' brawl" had occurred. Instead, the proof suggested the plaintiff had been unjustifiably attacked with the assailant's fists. The savage attack described by Georges creates a factual issue, in itself, as to whether Galvao had a vicious temperament. At the new trial that is herewith ordered for the errors in the acceptance and exclusion of evidence, the cause based upon unseaworthiness will be reinstated.

The second issue is whether plaintiff established a prima facie case of negligence on the part of American in hiring and retaining Galvao. A plaintiff may recover on the theory of negligence where a vessel's officers have failed in their duty to protect the safety of the crew. The plaintiff must establish that the assailant constituted a foreseeable risk to the plaintiff against which the shipowner had a duty to guard. (1B Benedict on Admiralty § 31 at 3-247 and 3-248; 22 ALR 3d 624, Liability Under Jones Act or Seaworthiness Doctrine for Injuries Caused by Assault, § 3, at p. 634; See, Guzzi v. Seas Shipping Co., Inc., 270 F.2d 714).

In its brief, American contends that there was no "foreseeable risk" since the trial court found, in dismissing the unseaworthiness claim, that Galvao did...