Harbin v. Interlake S.S. Co., 76-1568

• Decision Date: 27 January 1978
• Docket Number: No. 76-1568,76-1568
• Parties: 2 Fed. R. Evid. Serv. 945 Alvin E. HARBIN, Plaintiff-Appellee, v. The INTERLAKE STEAMSHIP COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 99

570 F.2d 99

2 Fed. R. Evid. Serv. 945

Alvin E. HARBIN, Plaintiff-Appellee, v. The INTERLAKE STEAMSHIP COMPANY, Defendant-Appellant.

No. 76-1568.

United States Court of Appeals Sixth Circuit.

Argued Oct. 4, 1977.

Decided and Filed Jan. 27, 1978.

David G. Davies, David B. Hopkins, Arter & Hadden, Cleveland, Ohio, for defendant-appellant.

Lawrence E. Stewart, Stewart & Dechant Co., L. P. A., Cleveland, Ohio, for plaintiff-appellee.

Before WEICK and CELEBREZZE, Circuit Judges, and GRAY, ^* District Judge.

WEICK, Circuit Judge.

The plaintiff, Alvin E. Harbin (Harbin), a seaman, sued his employer, Interlake Steamship Company (Interlake), in the District Court, for damages in tort and for maintenance and cure under the Jones Act, 46 U.S.C. § 688, and the general maritime law. Jurisdiction was also invoked by reason of diversity of citizenship, 28 U.S.C. § 1332.

The tort was an alleged assault and battery committed upon plaintiff by another crewman, Alvin E. Highberg (Highberg), who was a second assistant engineer on board the steamer E. G. Grace, while the ship was in dock at Buffalo, New York.

In his complaint Harbin alleged negligence on the part of the ship's owner, Interlake, "in knowing and allowing Alvin Highberg to work as an officer on said ship despite his malicious and savage nature," and/or the unseaworthiness of the ship for the reason that Highberg "was an incompetent crew member by reason of his savage and vicious nature."

The case was tried before a jury. The District Court denied motions made by Interlake for a directed verdict at the close of plaintiff's evidence and at the close of all the evidence. The Court also denied Interlake's motion for a mistrial because of an alleged improper argument made by plaintiff's counsel to the jury. The Court submitted to the jury only the issue of unseaworthiness of the ship, and not any issue of negligence. The jury returned a verdict in favor of plaintiff in the amount of $10,000, and also answered special interrogatories as follows:

Interrogatory No. 1:

Did Alvin Highberg strike Alvin E. Harbin with a steel pipe during the course of the first altercation that occurred between the hours of 6:15 P.M. and 7:10 P.M. on the evening of December 11, 1973?

Answer: Yes

Interrogatory No. 2:

Was Alvin Highberg, the second assistant engineer, an officer not equal in disposition and seamanship to ordinary officers and men in his calling?

Answer: Yes

Interrogatory No. 3:

Did defendant's breach of its warranty of seaworthiness proximately cause or in any way contribute to injuries, if any, suffered by the plaintiff?

Answer: Yes

Interrogatory No. 4:

What sum of money do you find, if any, will fairly compensate plaintiff?

Answer: $10,000.00

The Court entered judgment on the verdict for $10,000 and costs, and also for $2,872 on the stipulated maintenance and cure count. We reverse the judgment on the verdict and affirm on the maintenance and cure count.

The facts of the case were very much in dispute. There was no dispute, however, about the fact that there were two assaults, rather than just one, committed during the evening of December 11, 1973. One was the assault which the jury found was committed by Highberg on Harbin between 6:15 and 7:10 p. m., and the other was an assault committed by Harbin on Highberg about two hours later. Harbin, in his testimony, admitted that just before he was assaulted by Highberg he had called Highberg a son-of-a-bitch. He testified, using only initials, that his words were: "You S.O.B., go to the engine room and leave me alone and I can take care of it or something, I could take care of it." Harbin also testified as to his later assault upon Highberg:

Q And at the time you were in the engine room at 10 o'clock did you and Mr. Highberg have a confrontation?

A Yes, sir. I told him I was going to take care of him.

The truth is that the evidence did not support the allegations of the complaint that Highberg was of "malicious and savage nature" and "was an incompetent crew member by reason of his savage and vicious nature." The uncontroverted evidence was to the effect that the time served by Highberg at sea was from twenty-five to twenty-six years, and that there had never been a complaint about his conduct. He had been licensed as a ship's officer by the United States Coast Guard for about twenty years, and had worked for Interlake for about three years. There was not an iota of evidence that he had a malicious, vicious and savage disposition. He was highly regarded by the men whom he supervised. He was never known to lose his temper or to raise his voice.

Harbin testified that he had been a seaman for twenty-five years, off and on. He did not say how much time was "off" or "on"; he had worked for Interlake less than two months. Harbin was 47 years of age, 6 feet 1 inch tall, and weighed 215 pounds. Highberg was nine years younger, was shorter, and weighed less.

There was no evidence of any prior enmity between Harbin and Highberg.

On the night of the incidents four crewmen were on watch duty: Highberg, the Second Assistant Engineer; Harbin, who was a fireman and was in charge of the operation of the boilers and stokers; an oiler, who was not a witness; and a wiper, Toivo Mikkola. All, except Highberg, were on duty from 4:00 to 8:00 p. m. Because another engineer had temporarily left the ship, Highberg was on duty from 6:00 p. m. to 12:00 midnight. The first two hours of Highberg's watch overlapped the last two of Harbin's watch, after which plaintiff would go off duty, and Highberg would then supervise another fireman, oiler and wiper. On the night of the alleged assault Highberg was the engineer of the watch, and Harbin was on duty in the fire room.

At approximately 7:00 p. m. Highberg was making a repair to the vessel, and shouted to Harbin to change the setting of a control in his area. The two men were separated by door-ways and a long distance, and Harbin did not understand the instructions. Highberg climbed down to Harbin's area.

Harbin testified that the following occurred: Highberg came down the ladder carrying a wrench and a pipe. Strong words ensued, and both men became angry. Harbin "cursed" Highberg and called him an "SOB". Then Harbin told Highberg to go back to the engine room and leave him alone, and turned his back, whereupon Highberg struck him on the hip with the pipe. Harbin fell to the floor, and was not attacked further. Then Highberg left.

Harbin testified that Highberg never did tell him what it was he wanted him (Harbin) to do, nor did Harbin assist further in making the repairs. Harbin stated that he had made no gestures or other physical provocation, and did not know that he was being attacked until the blow was struck.

Highberg, on the other hand, testified that the confrontation had been verbal only, and that he had carried no pipe when he went down to Harbin's area. He admitted that at the time in question he had nearly completed a double shift, which had been required because the ship was shorthanded. He had been on duty twelve hours a day for the past seven days, and had had no days off for "a couple of" weeks.

The testimony is undisputed that at about ten o'clock the same evening a second confrontation occurred. Harbin returned to the engine room, swore at Highberg, made threats, and then struck Highberg in the face, knocking him down. After a struggle, Highberg upset Harbin onto his back, and the fight ended. Harbin was promptly discharged by Interlake for this attack on Highberg, yet Harbin told no one of the alleged first attack. He complained of a lacerated thumb, which Highberg had bitten when Harbin put his hand over Highberg's face. Harbin also had a lump on the back of his head where his head struck the floor in the second encounter. Harbin admitted that he had spent considerable time talking with his roommates during the time between the two confrontations, yet he had made no mention of having been hit by Highberg with a pipe.

Harbin's injuries consisted of a large hematoma on the left hip, spasms and pain in the lower back, and the lump on his head. There was testimony that the hip injury had been caused by a pipe-like instrument, and had triggered the lower back problems.

At no time during the period of Highberg's license by the United States Coast Guard had his license been revoked, nor had he been disciplined. His longtime shipmates testified that he was a man of unusually-even temper, and that he was highly regarded by his subordinates. Highberg's testimony was uncontradicted that he had not been involved in any physical violence since he "was a kid."

Highberg was asked the question, "(I)n your experience does (sic) the conduct of an officer aboard a Great Lakes steamship striking a crew member with an iron bar the normal disposition of the ordinary officer?" His answer was "No." Highberg was also asked whether he had been provoked by Harbin and his answer was "No."

On this evidence the question whether Interlake had breached its duty to provide Harbin a seaworthy vessel by employing an officer with a proclivity for assaulting people, was submitted to the jury.

It is now well settled that a ship owner owes to the seamen employed on its vessels an absolute, nondelegable duty to provide a seaworthy vessel. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946); Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944); Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed. 927 (1922). In Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354 (1955), the Supreme Court held that a ship can be unseaworthy by reason of defective personnel as well as by reason of defective gear or a leaky hull. The Court approved the formulation of Keen v. Overseas Tankship Corp., 194 F.2d 515 (2d Cir.), cert. denied, 343 U.S. 966, 72 S.Ct. 1061, 96 L.Ed. 1363 (1952), in which case Judge Learned Hand...