Jones Act – Negligence – Assault

289. By other crewmen

Although under warranty of seaworthiness shipowner is not liable every time seaman gets drunk and does damage to member of crew, nor every time injuries result from fisticuffs on shipboard, shipowner is liable for breach of warranty of seaworthiness to seaman injured through assault by drunken fellow crew member where it appears assailant is not equal in disposition to ordinary men of his calling, and that assailant’s membership in crew renders crew incompetent to meet contingencies of voyage. Boudoin v Lykes Bros. S.S. Co. (1955) 348 US 336, 99 L Ed 354, 75 S Ct 382, amd on other grounds 350 US 811, 100 L Ed 727, 76 S Ct 38.

Shipowner is not liable under doctrine of respondeat superior for wrongful assault committed by one employee on another unless assault is committed in furtherance of or in attempt to further owner’s business. Jones v Lykes Bros. S.S. Co. (1953, CA2 NY) 204 F2d 815, cert den 346 US 857, 98 L Ed 370, 74 S Ct 72, reh den 346 US 905, 98 L Ed 404, 74 S Ct 217 and reh den 348 US 960, 99 L Ed 749, 75 S Ct 447.

Shipowner was liable for fatal stabbing of seaman by another crew member, since officers failed to prevent foreseeable assault; chief steward allowed assailant to drink on board and was aware assailant was hostile and “on something” prior to attack. Miles v Melrose (1989, CA5 La) 882 F2d 976, 132 BNA LRRM 2481, 113 CCH LC P 11554, reh den, en banc (CA5 La) 888 F2d 1388 and reh den, en banc (CA5 La) 888 F2d 1388.

Action of ship’s officers in encouraging rather than preventing fight between sailors, in course of which seaman who was innocent bystander was injured, led to liability of government for failure of officers to properly protect safety of seaman; where seaman was injured in attempting to take knife from drunken sailor during fight on ship, government as shipowner was liable for failure of officers in their duty to see safety of crew by preventing fight. Jensen v United States War Shipping Administration (1949, DC Pa) 88 F Supp 542, affd (CA3 Pa) 184 F2d 72.

Where assault of which plaintiff complains is result of personal difference between plaintiff and his assailant, assailant was not known to officers of vessel to be violent and belligerent and plaintiff had himself instigated friction which resulted in assault, no recovery may be allowed under 46 USCS Appx § 688. Condon v Grace Line (1951, DC Cal) 97 F Supp 197.

Seaman injured in course of his employment by assault by another seaman may recover damages from ship owner either under doctrine of unseaworthiness or under theory of negligence under 46 USCS Appx § 688. States S.S. Co. v Featherstone (1965, DC Or) 240 F Supp 830.

In action to recover for injuries to finger suffered in fight with fellow crew member, summary judgment for defendant and dismissal are proper where plaintiff provoked fight, testifies that opponent did not have vicious nature aside from fight, and fails to show more than negligible connection between injuries and captain’s sale of beer to boatswain, whose relieving plaintiff late on watch began chain of events which ended in fight. Palmer v Apex Marine Corp. (1981, WD Wash) 510 F Supp 72.

In action by widow of fishing boat captain under Jones Act and general maritime law against corporation that owned ship and employed captain, to recover for his death as result of vicious assault by ship’s engineer, trial court erred in dismissing widow’s unseaworthiness claim, where there were issues of fact, first, as to who had primary duty to retain seaworthy crew, i.e., captain or his employer, and, secondly, as to captain’s breach of his primary duty, if any, to maintain seaworthy crew, in view of evidence that ship’s engineer concealed his ill will towards captain, which raised factual question for jury as to captain’s knowledge of engineer’s dangerous propensities and whether captain breached his duty to take proper countermeasures; moreover, trial court erred in dismissing widow’s claim that defendant was negligent in retaining engineer because of his violent disposition, where there was evidence from which jury could have found negligence by defendant in retaining engineer, because of his general reputation for violence and fact that he spent off-season employed in defendant’s yard. Snow v Whitney Fidalgo Seafoods, Inc. (1984) 38 Wash App 220, 686 P2d 1090.

Seaman could not recover from shipowner under 46 USCS Appx § 688 for injuries resulting from being assaulted by another seaman while aboard launch apparently operated by military which occasionally operated launch service for seamen going from and returning to vessel while on shore leave when commercial vessels are anchored off town in Viet Nam. Bell v Seatrain Lines, Inc. (1974, 2d Dist) 40 Cal App 3d 16, 115 Cal Rptr 76.

Killing of seaman by fellow employee as result of personal quarrel between them, where there is no connection between quarrel and employee’s work, and deceased and killer had previous to quarrel been close friends, does not result in liability of employer under 46 USCS Appx § 688. Quinn v American Range Lines, Inc. (1942) 344 Pa 85, 23 A2d 487, cert den 316 US 677, 86 L Ed 1750, 62 S Ct 1107.

290. By officers or superiors on crewmen

Assault by employee’s foreman for purpose of hurrying employee in his work, although in excess of authority conferred by employer upon foreman, was committed in course of discharge of foreman’s duties and in furtherance of work of employer’s business and is cognizable claim under 46 USCS Appx § 688. Jamison v Encarnacion (1930) 281 US 635, 74 L Ed 1082, 50 S Ct 440.

Whether assault on plaintiff-seaman will invoke liability for shipowner under 46 USCS Appx § 688 is not controlled by mere fact that assailant holds superior position or that he asserts authority, question to be answered is whether he was attempting to assert his superiority on behalf of master or in private brawl. Nelson v American-West African Line, Inc. (1936, CA2 NY) 86 F2d 730, cert den 300 US 665, 81 L Ed 873, 57 S Ct 509.

Where assault by chief cook on plaintiff-dishwasher was for purpose of speeding up plaintiff’s work, chief cook was acting within scope of his authority, and shipowner is liable under 46 USCS Appx § 688. Pittsburgh S.S. Co. v Scott (1947, CA6 Ohio) 159 F2d 373.

Assault is outside scope of employment and not in furtherance of employer’s business where it is committed for purpose of revenge for prior assault; chief officer on ship could not recover damages from owner and operator for personal injuries as result of assault upon him by chief engineer where trial court found that chief engineer was not vicious, pugnacious, or dangerous and that chief engineer’s assault was not in course of his employment. Kable v United States (1948, CA2 NY) 169 F2d 90, later app (CA2 NY) 175 F2d 16.

Shipowner is liable for assault by superior officer on seaman made to enforce performance of order, but not for assault growing out of personal quarrel. Sutherland v Ore S. S. Corp. (1929, DC NY) 1929 AMC 1454.

Vessel was not liable for unexpected assault by ship’s officer on seaman. The Anaconda (1934, DC NY) 1934 AMC 709.

Fight in barroom due to apparently unprovoked assault by chief engineer will not constitute liability for shipowner under 46 USCS Appx § 688 where assailant had not been acting within scope of his employment, even though his purpose in coming to plaintiff’s table was to speak with seaman whom assailant suspected of pretending illness aboard ship to avoid work. Nowery v Smith (1946, DC Pa) 69 F Supp 755, affd (CA3 Pa) 161 F2d 732.

291. By crewmen on officers or superiors

Under seaworthiness doctrine, vessel owner is obligated to provide competent crew for vessel, composed of seamen of equal temperament, disposition, and seamanship; thus, unprovoked, sudden, and unusually savage assault against captain by deck hand constituted, as matter of law, breach of owner’s duty to provide seaworthy vessel, regardless whether owner knew or should have known of assailant’s dangerous propensities. Deakle v John E. Graham & Sons (1985, CA11 Ala) 756 F2d 821, reh den, en banc (CA11 Ala) 763 F2d 419.

Vessel is not liable under 46 USCS Appx § 688 for death of master resulting from assault committed by crew. Birks v United Fruit Co. (1930, DC NY) 48 F2d 656.

Second captain of ship is not entitled to recover from shipowner under Jones Act, 46 USCS Appx. 688, where second captain, who is white, was attacked by black crewman after second captain used racial epithet to black crewman, because junior crewman attacked superior officer, not vice versa, attack was not in shipowner’s interest, and attack was not foreseeable or preventable by captain or master. Fountain v John E. Graham & Sons (1993, SD Ala) 833 F Supp 873, 1993 AMC 1978.

Third mate may recover under 46 USCS Appx § 688 where he was assaulted by forklift operator upon ordering him to stop work and get down off forklift. Foss v Oliver J. Olson & Co. (1967, 2d Dist) 250 Cal App 2d 44, 58 Cal Rptr 511.

In personal injury action by ship’s officer against ship owner arising out of assault upon plaintiff by deckhand in which deckhand struck plaintiff in head with “cheaterbar” (steel pipe three feet in length, two inches in diameter, and weighing up to 15 pounds), defendant was liable on basis of unseaworthiness; questions presented in unseaworthiness claim case based on assault are whether seaman’s behavior was within usual and customary standards of his calling, or whether behavior evidences wicked disposition, propensity to evil conduct, or savage and vicious nature; mere presence of seaman with such disposition renders vessel unseaworthy. Newton v Federal Barge Lines, Inc. (1980, 5th Dist) 81 Ill App 3d 454, 37 Ill Dec 183, 401 NE2d 1276.