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November 27, 1957

Aston BARTHOLOMEW, Plaintiff,

The opinion of the court was delivered by: CONGER

Action by plaintiff for damages based on negligence and unseaworthiness. The case was tried to the court with a jury. The jury brought in a verdict for plaintiff for $ 24,600. Defendant has moved under Rule 50(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., to have the jury's verdict set aside and judgment entered for the defendant. This motion is denied on the authority of Zimmerman v. Emmons, 9 Cir., 225 F.2d 97.

At the end of plaintiff's case, defendant did make a motion. It was rather long and involved. If it may be considered and construed as within the provisions of Rule 50(b) F.R.C.P., then I deny such motion for the reasons hereinafter set forth.

Defendant further moved, in the alternative, pursuant to Rule 59(a) of the Federal Rules of Civil Procedure, for an order setting aside the jury's verdict and granting a new trial. It sets up some eight grounds upon which it bases the relief asked for. I shall not refer to each of them separately, but only to those I feel are substantial, and a general discussion will dispose of all of them.

 Plaintiff was a seaman working on defendant's vessel. His claim was that on or about the 15th of April, 1952, he was assaulted and viciously beaten by one of his fellow seamen aboard the vessel, and seriously injured. His testimony was that this seaman, Duzzel Solomon, without provocation, started hitting plaintiff in the face with his hands, knocked him to the deck, and then 'trampled' plaintiff in the face with his feet, then picked up plaintiff, raised him up and attempted to throw him overboard. The testimony on the part of the plaintiff was that at no time did plaintiff strike or raise his hands to his assailant.

 There were two branches to the case, one based upon negligence (Jones Act, 46 U.S.C.A. 688) and the other based upon the unseaworthiness of the vessel.

 I charged the jury at length on both the question of negligence and of unseaworthiness. On the question of negligence, the theory was that the defendant failed to furnish plaintiff with a safe place to work in that it permitted inclusion in the crew, of which plaintiff was a member, of a person whom defendant knew or, in the exercise of reasonable diligence, should have known, to be a person of dangerous propensities and proclivities; and the claim of plaintiff was that in the course of his work this sailor viciously and without provocation assaulted him. Among other things, in connection with this, I charged the jury as follows:

 'If a member of the crew was of a vicious and belligerent nature and likely to inflict bodily harm upon other members of the crew, and if such fact was known to the defendant, its officers or agents, or should have been known to the defendant, its officers or agents by the exercise of ordinary diligence, the defendant was obligated to exclude such person from employment on board its ship.'

 The other branch of the cause of action was unseaworthiness, in which plaintiff claimed that the vessel was unseaworthy because it included a member of the crew who was not the equal in disposition and seamanship to the ordinary man in the calling, a seaman with dangerous propensities and proclivities; that by reason thereof the ship was made a perilous place. In this connection, see Boudoin v. Lykes Bros. S.S. Co., D.C., 112 F.Supp. 177; 348 U.S. 336, 75 S. Ct. 382, 99 L. Ed. 354.

 I charged the jury fully, and I believe correctly, on the doctrine of unseaworthiness in connection with this kind of case. Among other things, I charged:

 'The warranty of seaworthiness as to hull and gear has never meant that the ship shall withstand every violence of wind and weather; all it means is that she shall be reasonably fit for the voyage in question. Applied to a seaman, such a warranty is not that the seaman is competent to meet all contingencies but that he is equal in disposition and seamanship to the ordinary men of the calling.

 'In connection with his claim based on unseaworthiness, the sole ground of unseaworthiness asserted against the defendant was the inclusion in the crew of a person, Duzzel Solomon, who, the plaintiff alleges to be of a vicious nature, with a history of assaulting fellow crew members.'

 These issues presented questions of fact and there was evidence from which, I believe, the jury might find for the plaintiff on either branch of the cause of action. There certainly was not an absence of evidence; there was some evidence, so that I felt and still feel it was a matter for the jury to decide, not a question of law for the court.

 Of course, the first issue met in this case, after the question of jurisdiction to which I shall refer later, was the question of a release. I instructed the jury to pass on this first before going into the merits of the case. As I said before, the incident complained of occurred on April 15, 1952. The ship docked on April 28, 1952, at Philadelphia, after which plaintiff came to New York. Within a few days he went to the office of the defendant in New York, where he finally met an attorney for the defendant (Mr. Antopole), who sent him to several doctors for examination. He was also given some money on account of maintenance. Subsequently, discussions of settlement were commenced and thereafter and on or about June 3, 1952, it was contended by defendant that plaintiff signed a general release for $ 532, $ 132 of which was for advances made to plaintiff for maintenance, and $ 400 of which was in consideration of the release of all his claims against defendant.

 Plaintiff testified that he never understood he was signing a general release, but that he thought he was signing a receipt for advances made to him. However, the testimony of defendant as to the signing of the general release was very strong and included the testimony not only of Mr. Antopole but of his secretary and another man in the office. The jury may very well have come to the conclusion from the evidence that plaintiff did sign a general release knowing that he was signing a release, but it seems to me that this does not dispose of the issue. The rule is that seamen are more carefully protected by the courts in their rights than is the ordinary run of mankind, and the burden, in the last analysis, was on the shipowner to show that the release was fairly made and fully comprehended by the seaman. I charged the jury, among other things, on this issue as follows:

 'I charge you that although a seaman is not incapable of entering into a valid release, nevertheless such release should be subject to rigid scrutiny. This is a special rule in the case of seamen.

 'You must be satisfied that the release signed by the plaintiff was executed freely, without deception, over-reaching or coercion, and that it was made by the plaintiff with full comprehension of his rights. The adequacy of the consideration paid him, his mental condition, the nature of the medical and legal advice, if any, available to him at the time of his signing the release are all relevant to your appraisal of his understanding.'

 In coming to its decision, the jury may very well have taken into consideration the fact that at the time of the signing of the release plaintiff was without an attorney and had no doctor of his own. The testimony of the defendant's attorney was that he informed plaintiff that the defendant's doctors who had examined plaintiff could find nothing seriously wrong with him and further that he, the attorney, could see nothing much of injury; that the plaintiff had had severe headaches before the accident. He also informed plaintiff that, in his opinion, if plaintiff had provoked the assault, he would not get anything and that, in the opinion of the said attorney, plaintiff would get nothing except maintenance and cure. The jury may very well have come to the conclusion that the consideration for the release was inadequate and that at the time of the signing of the release plaintiff was not aware of the seriousness of his injuries and of the serious condition that would later result from the accident. The jury may have taken into consideration also the fact that the plaintiff was more seriously injured at the time he signed the release than the plaintiff ...

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