The opinion of the court was delivered by: MURPHY
Plaintiff, a 52 year old seaman, brings this action for negligence under the Jones Act, 46 U.S.C.A. § 688, for indemnity because of unseaworthiness, and for maintenance and cure all because of an assault upon him by a fellow seaman on board the S.S. Frederick Lykes on May 25, 1949.
On the basis of the pleadings, testimony and exhibits, I make the following:
1. The plaintiff has been a seaman for 32 years and signed articles on the defendant's S.S. Frederick Lykes at Houston, Texas, for a foreign voyage to the Far East which consumed about four months' time.
2. Aboard ship he shared quarters with two fellow seamen, including Hunter, his assailant. Through the entire course of the voyage to the Far East and return there was no trouble between plaintiff and Hunter. In fact plaintiff described their relationship as 'friendly.' There was testimony, however, that on a single occasion in the Philippines Hunter had an argument with a fellow crew member but no blows were struck by either.
3. On the evening of the assault, May 25, 1949, when the ship had returned to Galveston, Texas, plaintiff and Hunter had a can of beer together ashore and left each other under amicable circumstances. Plaintiff returned to the ship and went to sleep since his watch did not begin until 12 midnight. He reported for duty in the fireroom of the S.S. Frederick Lykes at a few minutes before midnight. Hunter, who had the 8 to 12 watch in the same fireroom, told him everything was in order and left, presumably for his quarters.
4. Plaintiff did not find everything in order. There were no notations on the blackboard concerning the tips in the burner and some oil had been spilled on the deck. The ship was being maneuvered to go upstream to hOuston. Plaintiff inquired of the junior engineer what size tips Hunter had used and got no satisfactory response.
5. A few minutes later Hunter returned to the fireroom and shouted some vile remarks at plaintiff. Hunter told plaintiff that he had been firing long enough to know where things were. This argument was broken up by the chief engineer, who told Hunter to go back to his quarters. No blows were struck- in fact there was no physical contact at all.
6. Later that same morning after the plaintiff had completed his watch and returned to his quarters he was suddenly and without provocation beaten by Hunter. As a result plaintiff sustained severe injuries to his hip. These injuries caused plaintiff to be conveyed by ambulance that day to a hospital in Houston and from there to the Marine Hospital in Galveston.
7. Plaintiff was confined to the United States Marine Hospital in Galveston from May 25 to July 19, 1949, and from there removed to the United States Marine Hospital at New Orleans where he stayed from July 19 for a period of two months and three weeks and then continued as an outpatient until November, 1950.
8. Plaintiff's discharge papers show that he had been on The Frederick Lykes from February 2, 1949 to May 25, 1949.
9. Plaintiff shipped again, this time as a saloon-pantryman from August 4, 1950 to September 3, 1950, on the S.S. Howell Lykes and again from March 26, 1951 to July 6, 1951, as a fireman on the S.S. Lone Star State. On this last voyage plaintiff had to remain confined to his bed from Gibralter to Baltimore, a period of 16 days.
10. When plaintiff arrived in Baltimore on July 6, 1951, he went to the United States Marine Hospital in Baltimore for two weeks. He then came to New York and was admitted to the United States Marine Hospital on Staten Island on October 7, 1951, and was confined there until December 13, 1951. He has not worked since.
11. The injuries that plaintiff sustained consisted of a fracture of the neck of the right femur. A pin placed through the femur to keep that bone in place was subsequently removed. Later the shaft of the femur was broken by surgeons in order to align it better. At that time a metal plate was placed in the femur, which remains to ...