The opinion of the court was delivered by: BRODERICK
VINCENT L. BRODERICK, District Judge.
Plaintiff Konstantinos Catrakis was third mate on the ship "S.S. Sister Katingo", owned by the defendant. William Green, the third party defendant, was the chief pumpman on that ship. Plaintiff is a naturalized American citizen, although he resides in Greece. Since 1958 he has been active in the American Merchant Marine, initially as a seaman, and since 1968 as an officer.
Plaintiff brought an action herein against the defendant under the Jones Act, alleging unseaworthiness and negligence, and failure to pay wages and maintenance and cure in connection with an injury incurred by plaintiff on November 17, 1971. A trial was had before Judge Motley in June, 1976, in which the jury found for the defendant on the issue of seaworthiness and disagreed with respect to negligence. A retrial of the negligence issue was had before me in December 1976, and the jury found for the defendant.
The parties stipulated that the issue of defendant's liability to the plaintiff, if any, for maintenance and cure and for unpaid wages would be determined by the Court.
Plaintiff's injuries which were the subject of the claims herein were incurred in an assault on him by Green, the third party defendant. The facts concerning the relations between plaintiff and Green during the period immediately preceding the assault, and concerning defendant's knowledge of those relations, are useful in determination of the ultimate issues to be decided.
On one occasion in the fall of 1971, when the S.S. Sister Katingo was in a European port for the purpose of unloading oil, plaintiff Catrakis, who was the deck officer on duty, was asked by the captain to make sure that the oil was discharged from various tanks in such wise that the ship would remain on an even keel. Green as the chief pumpman was responsible for the mechanics of the unloading. As oil was unloaded from the ship, Catrakis noticed that the bow was higher than the stern. He drew this to Green's attention and told him to shift the unloading process to other tanks so as to reestablish an even keel. Green told the plaintiff not to bother him. Catrakis thereupon made the unloading adjustments which were necessary to reestablish an even keel, and that evening informed the captain of Green's refusal to obey orders. The captain instructed Green to obey the mate thereafter, and told Catrakis that the next time that Green disobeyed an order he should make an entry in the log book.
A short time thereafter a crewman warned Catrakis not to pass through a certain part of the ship because Green was waiting there to assault him. Catrakis reported this to the captain: the captain told Catrakis not to make a log book entry, but assured him that if Green tried to assault him he, the captain, would "fix" him.
On November 5, 1971, plaintiff saw Green in a spare room on the ship where belongings of absent crew members were kept. This room was normally locked. Green had opened a gear locker and had his hands inside a handbag which belonged to a missing crew member. He was inspecting the various items in this bag. When Green saw Catrakis, he closed the handbag and the locker. Catrakis reported this incident to the captain, who stated that nobody had given Green authority to enter the spare room, and directed Catrakis to make a log entry about the matter.
Catrakis explained to the captain that he took no action against Green at the scene because Green had indirectly threatened him with bodily harm and injury.
Four days later, on November 9, the captain called Green, Catrakis, the chief engineer and the chief mate to his quarters for an "investigation" into the incident of November 5. Green's explanation of his presence in the spare room was that he went there to repair the toilet: he found the door unlocked and attended to the necessary repairs. It could not be determined who sent Green to repair the toilet or who complained it needed repair. The clothes locker which contained the missing seaman's personal effects had always been kept locked, and contained no toilet: Green said that he opened this locker to check the contents, using a pass key which the chief mate gave him.
The captain ordered Green to stay away thereafter from that area of the ship unless specifically ordered to enter it, and under those circumstances to report to the officer on watch. He directed him to refrain from opening lockers. He ordered him to surrender any pass keys in his possession. The matter was then referred for any further action to the Coast Guard. Green refused to make response to plaintiff's charges, saying that he would reply to the Coast Guard.
On November 17, 1971, when the "S.S. Sister Katingo" was in a port near Naples, plaintiff Catrakis went to the Seamen's Club in Naples to make a telephone call to his father, who was hospitalized in Greece. As he was leaving the Seamen's Club, he was assaulted by Green, who hit him on the right side of his jaw. He was rendered unconscious. The Naples police took him to the hospital, and then to the police station. Thereafter he was taken to the International Hospital in Naples, where he was examined and kept overnight. He was found fit for duty the next day and went back to his ship.
The ship proceeded to Crete, where plaintiff was examined by a doctor and found not fit for duty. He was repatriated to the United States where he was hospitalized in the U.S. Public Health Service Hospital on Staten Island. He was an inmate in that hospital from November 25 until December 2, 1971,
and was an outpatient from that time until November 5, 1972, when he was declared fit for duty. Plaintiff commenced working once again in November of 1972, initially as a night mate on ships in port. He shipped out to sea again in May, 1973.
The voyage of the S.S. Sister Katingo in the course of which plaintiff's injury was incurred commenced on September 30, 1971, and terminated September 27, 1972. Plaintiff was discharged from the ship as not fit for duty on November 22, 1971. The defendant continued to pay plaintiff wages for a period thereafter, and then stopped paying such wages. Defendant also paid plaintiff maintenance for some time after his discharge from the U.S. Public Health Service Hospital, and then cut off such payments. Plaintiff and defendant have stipulated that the total of unpaid maintenance at $8 per day for 201 days is $1,608, and that the total of unpaid wages is $8,485.25.
Both plaintiff and Green testified at the December trial. Plaintiff testified that he was struck by Green, while he was leaving the Seamen's Club in Naples, and that Green had in his hand, as he struck him, an instrument resembling a pipe. Green's testimony, which I find not credible, was to the effect that plaintiff first made a threatening gesture towards him, and that Green's blow was a responsive one. Green denied that he had anything in ...