Appeal from a directed verdict and judgment of the United States District Court for the Southern District of New York, Pierce, J., dismissing an action for negligence and unseaworthiness. Affirmed.
Before Lumbard, Waterman and Van Graafeiland, Circuit Judges.
This is an appeal from a directed verdict and judgment of the United States District Court for the Southern District of New York, Pierce, J., dismissing George Lambert's action against his employer, Morania Oil Tanker Corp., for personal injuries resulting from the alleged unseaworthiness of Morania's ship and Morania's alleged violation of the Jones Act, 46 U.S.C. § 688. We affirm.
In 1979, Lambert was the captain of Morania's barge T-30, a non-self-propelled vessel which carried a cargo of fuel oil and was manned by a two-person crew, a captain and a mate. In September, 1979, Lonnie Pfaudler was appointed mate. Lambert and Pfaudler worked together for a week without incident, sharing the same bunkroom and galley. Lambert testified that, prior to September 23, he had no reason to complain about Pfaudler's behavior.
Pfaudler had only recently been employed by Morania. He was hired through the local union in August 1979, and assigned to work aboard another barge, the Morania 130. After only a week, it was necessary to reassign Pfaudler to make room for seamen with more seniority. The captain of the Morania 130 had been satisfied with Pfaudler's performance and had expressed a desire to keep Pfaudler a member of his crew. However, because of Pfaudler's lack of seniority, this could not be done.
Before hiring Pfaudler, Morania checked his seagoing employment record with the Marine Bureau Index and learned that he had a valid tankerman's certificate and a clean employment record, never having been discharged for cause. Morania did not check to determine if Pfaudler had a criminal record. Pfaudler did, in fact, have a relatively recent conviction on his record for unauthorized use of a motor vehicle.
On September 22, 1979, the T-30, laden with a cargo of fuel oil, was towed to the Garaghan Oil Terminal in Kingston, New York. Discharge operations commenced around 6:00 p. m. Lambert stood the watch from 6:00 p. m. to midnight. Pfaudler went ashore where he had "a couple of beers". He returned to the T-30 about 11:30 p. m. and took over the watch from Lambert who turned in for the night.
Lambert's version of what followed is that he was awakened around 2:00 a. m. by the clanking of a pump. When he turned out to see if there was a problem, he discovered Pfaudler asleep on a couch in the galley. He woke Pfaudler, who immediately ran out on deck; Lambert dressed and followed. He discovered that Pfaudler had mishandled the discharge valves and, as a result, oil was not discharging properly. Lambert accused Pfaudler of not knowing what he was doing and ordered him below.
Pfaudler, who at 5'8 and 145 pounds was both shorter and lighter than the 6'3, 275 pound Lambert, took offense and assumed a "Kung-Fu" position. Lambert ignored him, and Pfaudler leaped feet first striking Lambert on the right knee, causing him to fall to the deck. Pfaudler then grabbed Lambert around the neck ripping off his shirt collar. Lambert shook off his assailant while struggling to his feet. Retreating, Pfaudler threw his flashlight at Lambert, narrowly missing him. Pfaudler went below deck where he was found asleep in his bunk about an hour later by police officers summoned to the scene by Lambert. On October 17, 1979, Pfaudler pleaded guilty to harassment in state court and received a 15-day suspended sentence.
According to Pfaudler, there was no fight. He testified that the discharge operation was proceeding smoothly when Lambert appeared on deck claiming something was wrong. They argued and cursed, but neither struck a blow.
In deciding Morania's motion for a directed verdict, the district court was required to view the evidence most favorably to the plaintiff, giving him the benefit of all reasonable inferences. Bigelow v. Agway, Inc., 506 F.2d 551, 554 (2d Cir. 1974). Nonetheless, the district court did not err in directing a verdict in favor of Morania.
Before the jury could have made a finding of unseaworthiness, plaintiff had to establish that Pfaudler was not equal in disposition and seamanship to the ordinary men in his calling but had instead a savage and vicious nature, a vicious, pugnacious, or dangerous disposition. Boudoin v. Lykes Brothers Steamship Co., 348 U.S. 336, 340, 75 S. Ct. 382, 385, 99 L. Ed. 354 (1955); Walters v. Moore-McCormack Lines, Inc., 309 F.2d 191, 192-94 (2d Cir. 1962); Keen v. Overseas Tankship Corp., 194 F.2d 515, 518 (2d Cir.), cert. denied, 343 U.S. 966, 72 S. Ct. 1061, 96 L. Ed. 1363 (1952); Kable v. United States, 169 F.2d 90, 92 (2d Cir. 1948). Because the record is totally devoid of such proof, a verdict in defendant's favor was properly directed on this issue. Walters v. Moore-McCormack Lines, Inc., supra, 309 F.2d at 192-94; Stankiewicz v. United Fruit Steamship Corp., 229 F.2d 580, 581 (2d Cir. 1956); Jones v. Lykes Bros. Steamship Co., 204 F.2d 815 (2d Cir.), cert. denied, 346 U.S. 857, 74 S. Ct. 72, 98 L. Ed. 370 (1953).
The record is also barren of proof that Morania knew or should have known that Pfaudler had a propensity for violence and nonetheless negligently hired him or retained him in its employ. See Guzzi v. Seas Shipping Co., 270 F.2d 714 (2d Cir. 1959). Like the district court, we are not prepared to accept plaintiff's argument that the expansive definition of negligence which has been developed in Jones Act cases made Morania liable under the doctrine of respondeat superior for the assault upon plaintiff by his co-employee.
Following the enactment of the Jones Act, it was not immediately apparent that the Act's abolishment of the fellow-servant rule applied to intentional torts such as assault. When the seminal case of Jamison v. Encarnacion, 281 U.S. 635, 50 S. Ct. 440, 74 L. Ed. 1082 (1930) was before New York State's Appellate Division Second Department, that court, 224 A.D. 260, 230 N.Y.S. 16 (1928), referred, as does the Jones Act, to the Federal Employers' Liability Act*fn1 and held that negligence, not assault, is the basis of liability under both Acts. In reversing the Appellate Division, the New York Court of Appeals, 251 N.Y. 218, 167 N.E. 422 (1929), held that the word "negligence" should be broadly interpreted to include "misconduct." The court distinguished Davis v. Green, 260 U.S. 349, 43 S. Ct. 123, 67 L. Ed. 299 (1922) on the ground that the injuries to Encarnacion were inflicted by his foreman in directing the performance of ...