Lykes Bros. SS Co. v. Boudoin, 14765.

• Decision Date: 10 May 1954
• Docket Number: No. 14765.,14765.
• Citation: 211 F.2d 618
• Parties: LYKES BROS. S. S. CO., Inc. v. BOUDOIN. BOUDOIN v. LYKES BROS. S. S. CO., Inc.
• Court: U.S. Court of Appeals — Fifth Circuit

211 F.2d 618 (1954)

LYKES BROS. S. S. CO., Inc. v. BOUDOIN.

BOUDOIN v. LYKES BROS. S. S. CO., Inc.

No. 14765.

United States Court of Appeals Fifth Circuit.

March 26, 1954.

Rehearing Denied May 10, 1954.

Andrew R. Martinez, Wm. E. Wright, New Orleans La., Terriberry, Young, Rault & Carroll, New Orleans, La., of counsel, for appellant.

Raymond H. Kierr, Samuel C. Gainsburgh, New Orleans, La., for appellee.

Before HUTCHESON, Chief Judge, and HOLMES and BORAH, Circuit Judges.

HUTCHESON, Chief Judge.

This is an appeal by the defendant from a final judgment entered in plaintiff's favor in an action at law brought by a seaman for injuries inflicted upon him by another seaman and tried to the court upon a waiver of jury. The plaintiff also has attempted belatedly to appeal because of inadequacy, but, since plaintiff has been paid the amount of the award for maintenance and cure, and we are holding that no case for damages was made out, it will not be necessary to notice his appeal.

Both of the seamen were unlicensed crew members. Neither had supervisory control over the other, and the assault was unconnected with the business of the ship or the respondent steamship company.

The plaintiff was employed aboard the defendant's SS Mason Lykes in the capacity of oiler during a foreign voyage which commenced from, and ended in, New Orleans, between the dates of September 6, 1949, and December 19, 1949. During the late hours of November 24, 1949 (Thanksgiving night) and early hours of November 25, 1949, three unlicensed crew men, off duty and having no work to perform until the next morning, were in the forecastle of the boatswain talking and having drinks. One of the men was Manuel Gonzales, the assailant involved in this case.

The plaintiff, Elie Boudoin, had been drinking ashore on the afternoon of November 24th, and had gone to bed at about 5:00 P.M. that day. About 2:00 A.M. on the morning of November 25th, while the plaintiff was asleep or almost asleep in his bed, Manuel Gonzales left the boatswain's room and went into the room of the plaintiff and attempted to take a bottle of brandy from under the plaintiff's bed. When the plaintiff was startled in the semi-darkness by the shape and person of Manuel Gonzales close to his bed, he accosted Gonzales, and Gonzales struck him on the back of the head with the bottle which he, Gonzales, had taken from under plaintiff's bed. As a result of the blow on the head, the plaintiff suffered personal injuries for which the lower court awarded damages and maintenance. The maintenance part of the judgment has been paid, and this appeal concerns only the plaintiff's right to recover damages.

The district judge held the shipowner to an absolute warranty of seaworthiness in respect of the disposition of the members of the vessel's crew, which, as applied to assault cases, he declared required that each seaman be "equal in disposition * * * to the ordinary men in the calling". Applying this standard, he held the defendant liable to the plaintiff under the General Admiralty Law because the assailant, Manuel Gonzales, was not, during the voyage in question "equal in disposition * * to the ordinary men in the calling."¹ In addition, he held the officers of the ship negligent in not anticipating that some such trouble as occurred would, or might, occur, and in not preventing it by breaking up the party.

Appealing from the decision and judgment, the respondent is here insisting that in so finding and holding, the district judge erred and his decree based thereon must be reversed.

In opposition to the district judge's conclusion that the presence of Gonzales on board the SS Mason Lykes made it unseaworthy, it vigorously presents these views:

"By long and well established jurisprudence, a vessel\'s warranty of seaworthiness, applied to assaults committed by unlicensed crew members, means that the shipowner is liable only if the assailant possessed vicious proclivities based upon a number of assaults, vicious in nature, and occurring so that the ship\'s officers knew or should have known the assailant\'s disposition. In fact, prior to the case of Keen v. Overseas Tankship Corporation, 2 Cir., 194 F.2d 515, 1952 AMC 241, on which the district judge relied, no court had gone to the length of holding a shipowner liable in assault cases involving unlicensed crew members when the assailant did not possess known vicious traits."

Arguing in support of these views, exhaustively reviewing the jurisprudence, and quoting from, and analyzing decisions² written before and after the Keen case, it concludes its argument thus:

"These authorities establish clearly that a ship owner is not to be held liable for an assault unless: (1) it is committed by a superior on a subordinate in carrying out the ship\'s work; or (2) the assailant possessed known vicious characteristics."

Appellant points to the absence from the findings of the essential finding that prior to the assault the shipowners or the officers of the ship knew or had reason to know, that Gonzales had exhibited, or was possessed of, known vicious characteristics and to the complete absence from the record of any evidence which would support such a finding. So pointing, appellant insists that, under the established principles which, upon the authority of the Keen case, were departed from by the district judge, appellant is not, and cannot be made, liable on the theory advanced below that Gonzales' presence on board rendered the ship unseaworthy.

On the issue of negligence on the part of the ship's officers in not putting an end to the drinking on the night of the assault, on which issue the district judge, citing Koehler v. Presque-Isle Transp. Co., 2 Cir., 141 F.2d 490, and Jensen v. U. S., 3 Cir., 184 F.2d 72, also found for plaintiff, appellant concedes that it is the duty of officers to suppress disorders and conduct which they know or ought to know of, which may be reasonably expected to result in injury to crew members. It insists, though, that the record affords no basis for the finding that within the principle for which these cases stand, the ship's officers knew or should reasonably have anticipated that an incident of the kind and with the consequences shown here would be likely to occur, and that the failure to prevent it was actionable negligence.

Recognizing that the district judge has found, in Finding No. 19, that Gonzales was a person of dangerous propensities and proclivities, during the time he was employed aboard the SS Mason Lykes, and in Finding No. 20, that he was a person of violent character, belligerent disposition, excessive drinking habits, and disposed to fighting and making threats and assaults, it vigorously asserts that the record does not furnish support for this finding, except as it is based upon the assault in this case.³

It further insists that, assuming that the hearsay evidence of the plaintiff, as to Gonzales' propensity for fighting, is sufficient to show that the plaintiff believed that he had that propensity, there is no evidence to show that the officers knew that he had it, and none to show that they knew, or ought to have known, that it was probable or likely that he would leave his companions in the boatswain's quarters to assault the plaintiff in this case or any other seaman.

We find ourselves in complete agreement with the appellant that the Keen case, in undertaking to set up a standard of seaworthiness to which the dispositions of all seamen must equally conform, is a departure from the long settled law governing responsibility for injuries intentionally inflicted by one seaman upon another, as settled in The Rolph, 9 Cir., 299 F. 52, and in the other cases relied on by appellant. Indeed, the opinion in the Keen case admits that this is so.

It justifies the...