Before LUMBARD, Chief Judge, and FRIENDLY and KAUFMAN, Circuit Judges.
The plaintiff brought an action in the United States District Court for the Southern District of New York to recover from his employer, Moore-McCormack Lines, Inc., damages for injuries resulting from a shipboard fight.*fn1 His plea for recovery was based upon allegations of unseaworthiness and of negligence in hiring. After all the evidence on the issue of liability had been presented to the jury, Judge McGohey, upon motion, ordered a directed verdict for the defendant because there had been a failure of proof on both theories of liability. The plaintiff appeals from the judgment entered upon the directed verdict.
We affirm the judgment of the District Court.
The plaintiff, on November 26, 1958, was employed by the defendant as a messman aboard the S. S. Brazil, where he served meals to the members of the deck department. One member of that department was George Shannon, a fire patroller, who was present in the messroom at some time between 4:30 p.m. and 5:00 p.m. of November 26, 1958, preparing for his supper. On that evening, plaintiff took Shannon's order for roast beef, melon, and potato. When Walters returned to the table with Shannon's food, Shannon asked him where the corn was and Walters replied that he had not ordered any. Shannon then exclaimed, "You call me a liar?" and demanded that his corn be brought to him, employing some of the indelicate language not uncommon to the hardy seafarer. Plaintiff, detecting Shannon's growing annoyance, withdrew to the galley where he picked up some other orders as well as Shannon's order of corn. As Walters approached his table with both hands laden, Shannon leaped up and once again exclaimed, "You call me a liar," and with this, he struck the plaintiff in the face, causing the dishes in his hands to crash to the deck. Shannon continued to strike the plaintiff's face with his fists and then struck him a "karate" blow on the right side of the neck. The plaintiff, some thirty pounds lighter than Shannon, fell to the deck, and Shannon leaped upon him continuing furiously to strike him. Other members of the crew in the messroom shouted, "Why don't you people stop that man before he sills this man?" and "Don't get up. If you get up he'll kill you. He's mad." A doctor and nurse soon came and Walters was taken away on a stretcher. Such is the plaintiff's version of the incident.
The defendant's version reveals that, as in so many cases, much depends upon who is telling the story. Shannon testified that he ordered the corn, plaintiff failed to bring it, Shannon then asked for it again, and Walters sarcastically replied "You've got an hour to eat." Walters left the table, and when he returned, and Shannon again inquired about his corn, the plaintiff retorted with an obscenity. Shannon, incensed, "went after him" and struck the plaintiff with his fists two or three times in the face but at no time while plaintiff was lying on the deck.
There was uncontested testimony that Walters did not return any of the blows. It was further uncontradicted that Shannon quickly repented and sought to aid the injured messman. He handed Walters a towel to use to stem the flow of blood from a cut under his eye. One witness testified that Shannon "tried to wipe" Walter's face with it.
The plaintiff urges that there was sufficient evidence to go to the jury on the issue of unseaworthiness of the defendant's vessel. He submits that from the evidence offered in his behalf, a jury could reasonably infer that Shannon was unequal in disposition and temperament to the ordinary seaman.
The law is clear that if a crewmember possesses a vicious disposition or savage nature, his presence on board ship may merit a jury finding that the defendant had breached its warranty of seaworthiness.*fn2 See Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336, 75 S. Ct. 382, 99 L. Ed. 354, modified, 350 U.S. 811 76 S. Ct. 38, 100 L. Ed. 727 (1955); Keen v. Overseas Tankship Corp., 194 F.2d 515 (2d Cir.), cert. denied, 343 U.S. 966, 72 S. Ct. 1061, 96 L. Ed. 1363 (1952); Bartholomew v. Universe Tankships, Inc., 168 F.Supp. 153 (S.D.N.Y.1957). aff'd, 263 F.2d 437 (2d Cir.), cert. denied, 359 U.S. 1000, 79 S. Ct. 1138, 3 L. Ed. 2d 1030 (1959). Seamen's brawls are not uncommon, either on board ship or off. The confinement of the ship's frame, the forced continuous interaction of the members of a crew, the cramped living conditions, the ennui which often accompanies shipboard routine, are factors which often induce conditions which enflame those who possess short tempers and occasionally even those reputed for even-temperedness. It would be unreasonable and unwise to find unseaworthiness whenever an irascible crewmember engaged in a shipboard brawl with a colleague. The shipowner warrants that his ship is seaworthy to the extent that the members of the crew are of a disposition common to the ordinary man in the calling. That "ordinary man", as we have seen, lives under conditions quite "extraordinary" when viewed through the eyes of the landlubber. As Judge Learned Hand observed,
"Sailors lead a rough life and are more apt to use their fists than office employees; what will seem to sedentary and protected persons an insufficient provocation for a personal encounter, is not the measure of the 'disposition' of 'the ordinary man in the calling.'" Jones v. Lykes Bros. S.S. Co., 204 F.2d 815, 817 (2d Cir.), cert. denied, 346 U.S. 857, 74 S. Ct. 72, 98 L. Ed. 370 (1953).
The seaman, in a sense, accepts the risk of encountering crewmembers whose disposition may be more irascible than his own but which can not be deemed so savage that shipboard life becomes a menace.
As in every personal injury case, where the court and jury deal with issues of fault or of unreasonable conduct, there are problems present here of definition, of line-drawing.
"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." Boudoin ...