The opinion of the court was delivered by: DAWSON
This action, tried by the Court without a jury, involves a claim for damages by libellant, a Merchant Marine officer, who claims he was stabbed by a fellow-officer on October 1, 1952. Libellant elected at the trial to proceed on the theory of unseaworthiness rather than negligence, contending that respondent breached its 'absolute duty to the libellant to provide him with a seaworthy vessel, manned with officers and crew equal in seamanship, character and disposition to the ordinary men in that calling. (Libel, Par. Eighth.)
The Court finds the following facts:
1. At the time of the occurrence in question the respondent United States of America owned and operated the Steamship Knox Victory.
2. Libellant was employed by respondent from on or about August 1950 to and including October 1, 1952, as Second Office on the S.S. Knox Victory.
3. In the period of time preceding October 1, 1952, and on October 1, 1952, one Sam Wilson was employed by the respondent as Third Officer on the S.S. Knox Victory.
4. In the course of the voyage of the S.S. Knox Victory, which ended at Seattle, Washington, on October 1, 1952, several arguments of a non-violent nature had taken place between Wilson and the libellant. On several occasions Wilson told be libellant that he wanted him off the ship so that he, Wilson, could get the position of Second Officer. On the morning of October 1, 1952, Wilson went to the master of the vessel and told him that if libellant did not leave the ship at the end of the voyage he would 'kill' him. Wilson also threatened Alfred Henderson, the Junior Third Officer, on various occasions and challenged him to fight.
5. Wilson is a large man, weighing about 250 pounds and standing 6 feet 2 inches in height. Libellant weighed about 170 pounds and stood 5 feet 7 1/2 inches in height.
6. Wilson was characterized, both by the libellant and by Henderson, as a pugnacious individual and as a bully. He had a pocket knife with a large blade which he frequently displayed and at times threatened to use.
7. On the morning of October 1, 1952, the crew of the S.S. Knox Victory was paid off. Wilson was paid off, signed off the ship and left for the dock. He left some belongings on board, however, and indicated he might return to sign on for the following voyage. Libellant did not sign off the ship at this time but did leave the ship to go on the dock. At that time he was still dressed in his working clothes.
8. The following incident on the dock gave rise to this lawsuit: Apparently the bad blood between Wilson and the libellant continued and they were engaged in an argument on the dock as they proceeded toward the barrier at which the Customs Officers were present. Wilson, although he testified that he did not ordinarily drink, admitted that on that particular morning, before going to the dock, he had 'four, five or six drinks' -- a 'combination of Scotch and Bourbon.' He had some of these drinks with the Chief Officer. Respondent contends, and the testimony of the Customs Officers would seem to corroborate, that libellant was pursuing Wilson and making threats toward him, and that when they got to the Customs barrier the libellant struck a blow at Wilson. Libellant, on the other hand, contends that during this period on the dock, Wilson was threatening him and stated he would put him on charges, and that libellant retorted by calling Wilson a bully. At any rate, all parties agree that irrespective of what started the altercation, Wilson, when he reached a point near the Customs barrier, stabbed the libellant in the abdomen with his pocket knife. Wilson explained that the stabbing was accidental. He contended that as the libellant lunged at him he held up his hands to protect his face and the knife, which he held in his hand cut the libellant as he was raising his hands before his face. This explanation of the stabbing seems unworthy of belief. A man holding a knife in his hand which he is raising to protect his face would not accidentally plunge the knife into his opponent's abdomen. He might accidentally slash the other man but the medical evidence here is that the injury was not a slash but a cut directly into the abdomen. The Court finds as a fact that Wilson did draw a knife and plunge it into libellant's abdomen.
The knifing stopped the fight. The Customs Officers separated the antagonists. Wilson was arrested and taken to jail; the libellant was taken to a hospital. At the hospital the wound was cleaned and then sewn up. This was done under a local anesthetic. He was given a blood transfusion. Libellant remained at the hospital from October 1, 1952, to October 24, 1952, and continued under out-patient care at the hospital until December 16, 1952. He then came east to New York where he received further out-patient care at the United States Public Health Hospital on Staten Island. He was confined to this hospital for three days with influenza, but this was not causally related to the accident. Libellant was found fit for duty on January 17, 1953 and returned to sea as a ship's officer on January 24, 1953. He has continued actively working as ship's officer whenever employment is available since that date.
10. The wages of the libellant on the S.S. Knox Victory were at the basic rate of $ 522.56 per month, plus overtime. In 1951 his earnings were $ 10,597; in the period from January 1, 1952, to October 1, 1952, his earnings were $ 10,213.
11. It was stipulated that if libellant was entitled to maintenance this should be computed at the rate of $ 8 per day.
12. Libellant made a very good recovery from his injuries. The only permanent results of his injury are a scar on his abdomen, which is tender to touch and which causes some pain when bending, and that ...