Smith v. American Mail Line, Ltd.

• Decision Date: 10 July 1973
• Docket Number: No. 293-71C2.,293-71C2.
• Parties: Elma SMITH, Individually and as Administratrix of the Estate of George E. Smith, Deceased, Plaintiff, v. AMERICAN MAIL LINE LTD., a corporation, Defendant.
• Court: U.S. District Court — Western District of Washington

361 F. Supp. 1110

Elma SMITH, Individually and as Administratrix of the Estate of George E. Smith, Deceased, Plaintiff, v. AMERICAN MAIL LINE LTD., a corporation, Defendant.

No. 293-71C2.

United States District Court, W. D. Washington, Seattle Division.

July 10, 1973.

Levinson, Friedman, Vhugen, Duggan & Bland, Harold F. Vhugen, Seattle, Wash., for plaintiff.

Bogle, Gates, Dobrin, Wakefield & Long, Robert V. Holland, Seattle, Wash., for defendant.

OPINION

BEEKS, Senior Judge.

On the evening of July 31, 1971 the SS AMERICAN MAIL was at sea, returning to the United States from the Orient. George Smith, a messman on the crew of the vessel, had been in the crew's lounge with several other seamen who were playing cards. He left the lounge, bunked down in his quarters on a starboard alleyway, and fell asleep while listening to stereo music from his tape recorder with a headset. During the evening watch someone quietly took a fire ax from its case some distance aft of Smith's room on the same alleyway. He proceeded to Smith's quarters, entered, and killed him instantly with a single blow from the ax which virtually severed his neck.

Smith's body was discovered at 0555, August 1, 1971, during the regular call to work. The fire ax lay on the bunk next to him. There was no sign of a struggle. The headset was askew but still worn by Smith, and the tape recorder had automatically shut off when the tape terminated. Rigor mortis had set in. The master, chief officer, purser and chief steward inspected the room carefully without disturbing its contents, took pictures, and locked and sealed the room. A search of the ship and interview of the crew produced no clues.

The vessel was diverted to Adak, Alaska, where the Federal Bureau of Investigation interviewed the master, the other crew members and the twelve passengers. The murderer was never identified, and no charges have been filed in connection with the crime.

Smith's widow brought this lawsuit against his employer, the owner and operator of the SS AMERICAN MAIL. She claims damages under the Jones Act, the Death on the High Seas Act, and general maritime law. Her theory is that the vessel had on board a member of the crew who had vicious and homicidal propensities, and that this crew member struck Smith as he lay asleep in his bunk.

The case was tried to the court on oral testimony and depositions. Plaintiff sought to establish three facts: (1) that Smith was killed by a brutal and unprovoked attack; (2) that the passengers were mainly elderly retired persons or women, and that none had the motive or capability to commit the crime; and (3) that one or more of the crew had a motive and capability to murder Smith. Defendant maintains that plaintiff has failed to meet her burden of proof because she has failed to identify the murderer.

There is no evidence whatsoever to support the claim of negligence. Plaintiff's claim must stand, if at all, on proof by a preponderance of the evidence that unseaworthiness of the vessel proximately caused Smith's death.¹

The owner of a vessel warrants to its crew that each seaman shall be equal in disposition and seamanship to ordinary men in the calling.² It is no defense that a shipowner had no knowledge of the vicious character of a crewman.³ An analogy has often been drawn between a latent defect in the ship's equipment and a hidden propensity to violence in a crew member.⁴

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. . . . The problem, as with many aspects of the law, is one of degree. Was the assault within the usual and customary standards of the calling? Or is it a case of a seaman with a wicked disposition, a propensity to evil conduct, a savage and vicious nature? If it is the former, it is one of the risks of the sea that every crew takes. If the seaman has a savage and vicious nature, then the ship becomes a perilous place.⁵

Smith's primary duty as messman was to act as waiter for passengers and the ship's officers. He was 27 years old at time of death, had an honorable discharge from the United States Army, and claimed to have had some experience in the boxing ring. He had been married two and a half years. Although quiet and somewhat aloof in the performance of his duties on board, Smith was generally liked by passengers and fellow crew members alike. In port he was a flashy dresser, and enjoyed touring the night spots, where he was well known by the ladies there employed. He had no criminal record. He professed to be a member of the Black Panthers and an avid reader of Mao Tse Tung. Among the crew his closest acquaintance appears to have been a white messman by the name of Patrick Pappen, a confirmed alcoholic who often appeared shaky and nervous to the passengers and crew, and who did not hesitate to plead on occasion for a drink. Pappen is now deceased. Among the unescorted female passengers, Smith was on friendly terms with at least one. He also befriended a small but athletic white man by the name of Stuart Delaney, whose friendship with the same lady was terminated for reasons unknown to the Court. Smith and Delaney were close enough to exchange confidences. Among other things, Smith told Delaney that he smoked marihuana. Delaney arranged to meet Smith at a hotel in Keelung, Taiwan. Smith arrived with a female companion whose name appears from the record to have been "Super Star." Delaney visited Smith in his room on a number of occasions. This fraternization between a messman and a passenger was unusual, and struck crewmen and passengers alike as rather odd.

The only known friction between Smith and anyone else on the vessel was with a black saloon pantryman, Willie Sims. Sims was over six feet tall and weighed more than 200 pounds. He had a record of criminal convictions for crimes which include second and third degree assault; the last such conviction was in 1948. Sims was prone to exaggerate, and Smith was prone to call a bluff. They bickered frequently, and on occasion swore vigorously at each other. During one very heated argument, Smith drew an open pocket knife, whereupon Sims took a french knife from the pantry. This event was the closest to violence between Sims and Smith that any witness has admitted observing.

1. Was the Assailant Vicious?

Defendant maintains that, since the identity of the murderer is unknown, the court may not conclude that he had a violent temperament. The key in assault cases is that the disposition of the assailant must be unequal to that of ordinary men in the same calling.⁶

The nature of the fight itself does not establish a violation of the warranty of unseaworthiness. Therefore, a violation exists only if it can be shown that the assailant was an especially bellicose or pugnacious person.⁷

Mere failure to introduce any evidence on the assailant's past, however, is not necessarily fatal to plaintiff's case. Unseaworthiness is a species of strict liability. If a seaman is injured by a winch which becomes faulty, he need not show that on a number of other occasions the same winch nearly injured other members of the crew. The defective nature of gear is often demonstrated only by the circumstances surrounding the injury itself; the same may be said of the assault cases.

Defendant is correct in pointing out that, in some circumstances, even a deadly assault does not establish unseaworthiness. For example, the Court of Appeals for the Fifth Circuit has held that a seaman who stabbed his captain did not render the vessel unseaworthy.⁸ The evidence supported a finding that the attack was provoked by a cruel and abusive officer who carried a gun, cursed the crew, made false accusations, withheld pay wrongfully, stranded several members of the crew in foreign ports, and had some seamen arrested in port without cause. Immediately after the assault in question, the captain pulled his gun and fired several times at the assailant, who survived only by jumping overboard and swimming ashore. And in Connolly v. Farrell Lines, Inc.,⁹ plaintiff was hit over the head with a large "board" by a man who had earlier threatened to kill him. The assailant, who had never before been involved in a fight, struck plaintiff who was armed and advancing on him. Not all violent assaults, therefore, are committed by persons with a vicious nature.

True, there are a number of cases in which a judgment for plaintiff was precluded by a lack of evidence of a savage or vicious nature.¹⁰ In none of these cases, however, was the assault patently brutal or deadly. It is also true that a number of cases holding for plaintiff rely heavily if not exclusively on evidence of the assailant's prior acts of violence.¹¹ But these are, by and large cases in which the assault does not by itself suggest the assailant's disposition, or there is evidence that he merely was provoked by plaintiff or that the injury was the accidental result of a scuffle.

The confusion in the case law on this matter is directly traceable to the language chosen by the Supreme Court in its decision of Boudoin v. Lykes Brothers Steamship Co.¹² A narrow reading of that case suggests that every assault must fall into only one of two distinct and mutually exclusive categories: Either the assault is "within the usual and customary standards of the calling," such as a fistfight or sailors' brawl, or it involves "a seaman with a wicked disposition, a propensity to evil conduct, a savage and vicious nature."¹³ Yet surely there is occasionally a fight within the usual standards in which one of the combatants has a savage nature; and just as surely some of those assaults which exceed the customary standards of the calling must be committed by seamen who are not wicked or vicious.

In all of the caselaw there is a common denominator which is consistent with the spirit of Boudoin: the warranty of seaworthiness is breached unless the assailant was...