The opinion of the court was delivered by: DAWSON
This is a seaman's action tried by the Court without a jury wherein libelant sues for recovery of damages for personal injuries and for maintenance and for his wages until the end of the voyage. The libel alleges that on or about April 18, 1955, while libelant was engaged in the course of his duties on board the S. S. Marine Arrow and while in his room, he was caused to be brutally assaulted by the master of the vessel, without provocation, and thereby sustained severe and painful personal injuries.
The issue in the case is primarily one of fact. It is whether the injuries suffered by libelant were the result of an unprovoked assault by the master, or whether they were the result of a fight, provoked by libelant, with the junior third mate and subsequent blows struck by the master in defending himself from a later assault of libelant. Subsidiary to the determination of this issue is the question as to whether libelant was in a state of intoxication at the time of the assaults.
Certain of the facts appear without controversy. There is no dispute that libelant, who had been a seaman for some years in various capacities, was engaged as third mate on the S. S. Marine Arrow which started its voyage on the Pacific Coast on or about March 14, 1955 and sailed for the Mediterranean. Previous to this trip, libelant had served as mate on several vessels owned or operated by the respondent, including the S. S. Marine Arrow.
The voyage from the United States to Barcelona, Spain, went off uneventfully except that during the course of that voyage, the libelant was asked by the captain to take over the watch of the second mate, which was done. The vessel arrived at Barcelona on April 15, 1955. In port, libelant again returned to the watch customarily taken by the third mate, which was the watch from midnight to 8:00 a.m. Libelant stated that because of the noise of unloading the ship, he took a hotel room in town so that he could sleep during the day.
The principal characters in the dramatis personae in the ensuing events were:
Libelant, a man about 40 years of age, who at the time weighed about 210 pounds, and was about 5'9' in height. He was the third mate on the ship.
Sidney R. Sanford, a man approximately 58 years of age, weighing about 150 pounds, and about 5' 9' in height. He was the junior third mate on the ship.
William A. Neville, a man about 35 years of age, who weighed approximately 160 pounds, and was 5' 4 1/2' in height. He was the captain of the ship.
On April 17, 1955, libelant went ashore about 8:30 a.m., after having completed his watch and having had breakfast on the ship. He stated that he went to his hotel to sleep and got up about 4:00 p.m. The ship was scheduled to sail the following morning.
The events of the evening and early morning hours preceding the sailing of the ship furnish the background to this action, and might better be described by a Conrad or a Hemingway than in the dull prose of a Court opinion.
Apparently, the ship's officers and crew were intent upon taking advantage of the wine, women, and hospitality of the Spanish nation before they started the long voyage home. Libelant, with a slight tone of nostalgia, admitted on the stand that it was a memorable night in a seaman's life. He started early with a trip around Barcelona. About 8:00 p.m. he repaired to a restaurant with a shipmate where, he states, they had a steak sandwich, but no drinks. In fact, he claims that throughout the entire rest of the evening and early morning hours, he had only ten glasses of Malaga wine, although admitting that most of the other members of the crew were engaged in drinking brandy or more exhilarating liquid refreshments.
Libelant was scheduled to start his watch on the ship at midnight. He states that about 9:30 p.m., he decided to go back to the ship, but en route, stopped at a bar where a number of the crew had congregated and that he bought a round of drinks for them. He stated that while he was there, the captain came into the bar; that the captain was drinking brandy, and that he bought a drink for the captain, and the captain reciprocated for him. According to libelant's statement, the captain at this time told libelant that he would advise Sanford, the junior third mate, to stand libelant's watch, and that he need not go back to the ship. The captain testified, on the other hand, that he made no such statement to libelant, but that what in fact happened was that he saw that libelant was already under the influence of liquor, and that when he returned to the ship before midnight, he told Sanford, the junior third mate, not to let libelant take over the watch at midnight if he returned in an intoxicated condition.
Apparently, libelant, with some of the officers and members of the crew, remained at the bar for some hours. At about midnight he, together with the second electrician, left the bar accompanied by two women, described by libelant as 'senoritas'. Libelant stated that the four of them went to a steakhouse where they had a 'fine dinner', but he insisted that all that there was to drink at the dinner was one bottle of table wine between the four of them. After they finished the dinner, he and the second electrician and the two women left and went to a hotel, which was not the hotel at which libelant had been staying, and at this establishment, he and one senorita went to one room, while the second electrician and the other senorita apparently repaired to another room. A polite pall of privacy was drawn over the events of the next few hours in these hotel rooms, except that libelant made the inference clear that he and his senorita were not engaged in consuming alcoholic beverages during this period of time.
At about 3:00 a.m., libelant left the senorita and this hotel and went back to his own hotel, picked up his belongings, and started to return to the ship. Apparently, a number of other members of the crew had also returned for the same purpose, and he stated that there was a series of four or five taxicabs conveying the members of the crew back to the ship. ...