Lumbard, Chief Judge, Feinberg, Circuit Judge, and Clarie, District Judge.*fn* Lumbard, Chief Judge (dissenting).
Plaintiff John Laguna, a seaman, appeals from a judgment for defendant American Export Isbrandtsen Lines, Inc., after a jury trial before Walter R. Mansfield, J., in the United States District Court for the Southern District of New York. Appellant offers a number of reasons why he is entitled to a new trial but only one requires extended discussion: the claim that the trial judge should have modified the pre-trial order to allow plaintiff to press at trial a negligence theory not made explicit in the pre-trial order. Because we agree that the judge erred in this respect, we reverse for a new trial limited to the issues specified below.
This is not a typical seaman's action because there is no controversy over whether or how plaintiff was injured. There is, however, a sharp dispute as to whether any basis exists for holding defendant liable. The accident occurred in defendant's vessel on December 16, 1967, when plaintiff was shoved by the master of the vessel and hit his back against a handrail. The injury turned out to be quite serious, resulting in a spinal fusion operation and other claimed effects, which need not concern us now.
The events leading up to this unusual accident were as follows. Plaintiff was a steward's delegate, or union representative, on the vessel. On the evening of December 15, when the ship was in the Port of Seville, Spain, another crew member, Eugenio Gonzalez, apparently drank heavily while ashore. When he returned to the vessel, he created a noisy disturbance. When told by the chief mate to be quiet, Gonzalez hit him in the face. The chief mate did nothing about this until 8:00 A.M. on the morning of December 16, when he reported the incident to the master. The master then conducted a search for liquor in the room of Gonzalez, who was still obviously drunk. Gonzalez at that time flatly refused three direct orders of the master. Some liquor bottles were found and confiscated; one was half-empty.
Later that morning Gonzalez was still drunk. About noon, Gonzalez insisted that plaintiff obtain for him a master's certificate for medical treatment, which the master had refused Gonzalez a short while before because he was drunk. Plaintiff went to see the master, telling Gonzalez to stay below. Despite this advice, Gonzalez followed plaintiff into the master's room, and the master angrily ordered him out. Gonzalez left, then suddenly returned and punched the master, who was wearing glasses, in the face. Plaintiff managed to get Gonzalez out of the room and, at the direction of the purser, gave first aid to the master, who was bleeding around his eyes. Meanwhile, two ship's officers were subduing Gonzalez in the passageway. The master heard the racket and, with plaintiff dabbing at his eyes, walked to the door. When the master saw Gonzalez still struggling, he violently pushed plaintiff out of the way to go after Gonzalez. As a result, plaintiff was propelled backwards across the passageway and struck his back with great force against a handrail; plaintiff fell down and hit the cement deck. Gonzalez was eventually handcuffed, arrested and taken off the vessel by shore police.
From this occurrence, plaintiff claims to have had a number of theories at trial for holding the ship liable: the master's assault on plaintiff was negligence; the master was sufficiently below the competence of his calling to make the ship unseaworthy; Gonzalez was also not equal in disposition to the ordinary man of his calling, rendering the ship unseaworthy; the ship's officers should have prevented liquor from being brought aboard; and finally, Gonzalez should have been restrained or put ashore after he physically assaulted the chief mate and verbally abused the master, so that the later assault and accident to plaintiff would never have occurred. Although all of the evidence summarized above was admitted, plaintiff was allowed to argue that defendant was negligent or the vessel was unseaworthy only because of the master's assault on plaintiff.*fn1 As to these two theories, the court held that there was insufficient evidence even to allow the jury to consider whether the master was below the level of his calling. As to whether the master's assault constituted actionable negligence, the jury found for defendant under instructions to be considered below.
The judge's refusal to allow plaintiff to press his other claims was based upon plaintiff's tardiness in presenting them. The complaint was a typical, bare bones pleading, alleging in relevant part*fn2 only:
Sixteenth: That on or about the 16th day of December, 1967, while plaintiff was employed aboard defendants vessel he was attacked and brutally assaulted by a superior officer causing the injuries complained of herein.
Seventeenth: The aforesaid occurrence was due solely to the unseaworthiness of the said vessel and the negligence of defendant.
The pre-trial order, dated December 15, 1969, was similarly imprecise. The relevant paragraphs provided:
 (b) It is plaintiff's contention that on or about the 15th or 16th day of December, 1967, the plaintiff was employed by the defendant aboard the S/S Exford and on such date the plaintiff was caused to be pushed by the Master of the vessel and/or employees of the defendant, which assault caused plaintiff to sustain the following injuries * * *.
The said occurrence and the resulting injuries were caused by the unseaworthiness of the vessel and/or the negligence of the defendant, its agents, servants, employees, officers and crewmembers.
9. The issues to be tried are formulated by the Court (with the consent and agreement of the parties) as follows:
(1) Was the defendant negligent as contended in Paragraph 3(b) herein?
(2) Was the S/S Exford unseaworthy as contended in ...