County Council of Sumter County v. United States and Blanding Post-Trial Brief for the United States of America

    I n  the

CUmtrt at %  Huttefr States
OCTOBER TERM, 1953

No.

HENRY J. JONES,

vs.
Petitioner,

LYKES BROS. STEAM SHIP CO., INC.,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

Charles Andrews Ellis, 
Counsel for Petitioner.

Silas Blake Axtell, 
Charles Andrews Ellis, 
Martin G. Stein,

Of Counsel.

ACKERMAN PRESS, Phones BO 9-7107-8



INDEX
----------- PAGE

Opinions Below ...........................    1
Jurisdiction ..............   2
Questions Presented .....................................................  2
Statutes Involved f . . . . . . . . . . . . . . . . . . , . . , . . . ; . .......  3
Statement .......................................................................  4
Specifications of E r ro r s ................ .............................. 8
Reasons for Granting the Writ ......................    9

I. The Court of Appeals’ erroneous treatment
of the assault in quarters as a risk assumed by 
plaintiff, and its failure to give effect under mari­
time law and Jones Act to the violation thereby 
of defendant’s duty to provide and warranty of, 
and Hunter’s consequent duty as an employee 
.assigned to the same quarters as plaintiff to so 
conduct himself as to secure to plaintiff, safe 
quarters and opportunity for rest therein between 
watches in safety from unprovoked assault by de­
fendant or its employee assigned to the same 
quarters.—Statutory violations, and conflicts and 
confusion .of decisions............................................  9

II. The violation of Fed, Rules of Civ, Proc.,
Rules 52, 75 and 76, and conflict with decisions 
of this Court in reversing the determination of 
unseaworthiness without the record containing the 
evidence or defendant having designated or stated 
such a point, or the Court of Appeals determining 
or being in position to determine from the evi­
dence that the District Court’s finding of unsea­
worthiness was clearly erroneous,—Rules and de­
cisions violated . . , ........................... . 19

IJL The erroneous ignoring of the theory of 
plaintiff’s case and refusal to notice plaintiff’s 
cross-appeal on the “ negligence” and inadequacy 
.of damages questions.—Decisions in Conflict . . . .  21

Conclusion .....................................................................  22



11 T able of A uthorities Cited

page
Cases:

Aguilar v. Standard Oil Co. of N. J. (1943), 318 U. S.
724 ...........................................................................  10

Alpha Steamship Corporation v. Cain (1930), 281 U. S.
642 .................................................................... 14,17,21

Anderson v. Atchison, Topeka and Santa Fe By. Co.
(1948) , 333 U. S. 821 ...........................................  18

Baltimore & Ohio B. B. Co. v. Baugh (1893), 149 U. S.
368 ...........................................................................  18

Boudoin v. Lykes Bros. S. S. Co. (D. C. E. D. La.,
1953), 112 F. Supp. 177 ..................................11,12,17

Brown v. Pacific Coal Co. (1916), 241 U. S. 571, 573 .. 14 
Buzynski v. Luekenbach Steamship Co. (1928), 277

U. S. 226 ..................................   21
Carlisle Packing Co. v. Sandanger (1922), 259 U. S.

255 .........................   19,20,21
Carter v. Atlantic & Saint Andrews Bay By. Co.

(1949) , 338 U. S, 430, 431 ..................................16,18
Compagnie Generale Transatlantique v. Bivers

(C. C. A. 2d, 1914), 211 Fed. 294, certiorari denied,
232 U. S. 727 ......................................................... 12,14

Compton v. Hammond Lumber Co. (1936), 153 Or. 546 11 
Cortes y. Baltimore Insular Line (1932), 287 U. S.

367 ..........................................................................10,11
Gleeson v. Virginia Midland B. B. Co. (1891), 140 U. S.

435 ...........................................................................  20
Jamison v. Encarnacion (1930), 281 U. S. 635 .. .14,15,17 
Johnson v. United States (1947), 333 U. S. 46 .. .13,17,18,

19, 20, 21
Kable v. United States (D. C. S. D. N. Y. 1948), 77 

F. Supp. 519 (C. A. 2d 1948), affd. 169 F. 2d 90 .. 17
Keen v. Overseas Tankship Corp. (C. A. 2d 1952), 194

F. 2d 515; certiorari denied 343 U. S. 966 ......... 15,17
Koehler v. Presque-Isle Transportation Co. (C. C. A.

2 Cir. 1944), 141 F. 2d 490 ............................. 15,16,17
Kyriakos v. Goulandris (C. C. A. 2d 1945), 151 F. 2d 

132 .................................................................... 15,16,17



T able of A uthorities Cited iii
PAGE

Lillie v. Thompson (1947), 332 U. S. 459 ....................  12
Luekenbach et al. v. W. J. McCahan Sugar Refining Co.

and The Insular Line (1918), 248 U. S. 139.........  19
Mahnich v. Southern S. S. Co. (1944), 321 IT. S. 96 . .10,19 
W. J. McCahan Sugar Refining Co. v, S. S. Wild-

croft (1906), 201 U. S. 378 ........................... 19
McCall y. Inter Harbor Navigation Co. (S. Ct. Or.

1936), 154 Or. 252 ...................................................  11
McDonough v. Buckeye S. S. Co. (D. C. N. D. Ohio, 

1951), 103 F. Supp. 473; affd. (C. A. 6 Cir., 1953),
200 F. 2d 558; certiorari denied 345 U. S. 926. . 13,14,18 

Nelson v. American-West African Line, Inc. (C. C. A.
2 Cir. 1936), 86 F. 2d 730; certiorari denied 300
U. S. 665 .......................................................... 15,16,17

Reck v. Pacific-Atlantic S. S. Co. (C. A. 2d, 1950), 180
F. 2d 866 .................   13,14,18

Rooker v. The Alaska S. S. Co. (1936), 185 Wash. 71,
certiorari denied, 299 U. S. 552 .............................  11

Searff v. Metcalf (1887), 107 N. Y. 211........................ 10
Steel v. State Line S. S. Co., L. R. 3 App. Cas. 72, 81,

82, 84, 86, 90, 91 ....................................................... 19
Sundberg v. Washington Fish and Oyster Co. (C. C. A.

9th, 1943), 138 F. 2d 801 ................................11,14,18
Terminal R. Assn, of St. Louis v. Stangel (C. C. A. 

8th), 122 F. 2d 271; certiorari denied 314 U. S.
680 ........................................................................... 20

The Carib Prinee (1898), 170 U. S. 655 ......................  19
The Lord Derby (C. C. A., E. D. La., 1883), 17 Fed. 265 11 
Tiller v. Atlantic Coast Line R. Co. (1943), 318 U. S.

54 .....................................................  12,13,17,18
United States v. Gypsum Co. (1948), 333 U. S. 364 . .20, 21 
United States Shipping Board Emergency Fleet Cor­

poration et al. y. Greenwald (C. C. A. 2d, 1927),
16 F. 2d 948 ............................................................ 11



IV S tatutes

PAGfi
Fed. Rtdes Civ. Proc.:

Rule 52, 28 U. S. C.............................................. 3,7,19,20
Rule 75, 28 U. S. C...................   3,5,19,20
Rule 76, 28 U. S. C..............................................3,5,19,20

United States Code:
Title 28, Sec. 1254(1)................................................... 2
Title 28, Sec. 2101(c) ................................................... 2
Title 45, Sec. 5 1 .................... ......................2,3,4,11,18
Title 45, Sec. 5 4 .................... ................ 2,3,4,11,12,18
Title 46, Sec. 391.................... ................................... 9
Title 46, Sec. 653 .................... ................................... 9
Title 46, Sec. 660a.................. ................................... 9
Title 46, Sec. 660-1 ................ ................................... 9
Title 46, Sec. 669 .................... ...................................9,10
Title 46, See. 673 .................... ................................... 10
Title 46, Sec. 688 .................... .................... 2,3,11,12,18

T extbook

Moore’s Federal Practice, 2nd Ed., Vol. 5, pages 2611- 
2629 .........................................................................  20



I n the

(Emirt 0! %  Staten
October T erm, 1953

No,

----------♦----------
H enry J . J ones,

vs.
Petitioner,

Lykes Bros. Steamship Co., I nc.,

Respondent.
--------------------- *---------------------

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

To the H onorable, T he Chiee J ustice and the Associate
J ustices op the Supreme Court oe the U nited States:

Petitioner, an American seaman, prays for a writ of 
certiorari to review the judgment of the United States 
Court of Appeals for the Second Circuit, entered June 4, 
1953, which reversed a judgment for plaintiff for damages 
for personal injuries and dismissed the complaint, and on 
June 19,1953, denied plaintiff’s petition for rehearing filed 
June 17, 1953.

Opinions Below

The opinion of the District Court (R. 10 to 17) is re­
ported in 108 F. Supp. 323. The opinion of the Court of 
Appeals (R. 25) is not yet published in Fed. 2d.

No opinion was rendered by the Court of Appeals in 
denying petitioner’s application for rehearing.



2

Jurisdiction

The judgment of the Court of Appeals was entered on 
June 4, 1953; thereafter petitioner filed a petition for re­
hearing in said Court on June 17, 1953, which said Court 
denied on June 19, 1953.

The jurisdiction of this Court is found in 28 U. S. Code, 
Sees. 1254 (1) and 2101 (c).

Questions Presented

1. Where a seaman assigned to the same quarters on 
shipboard as plaintiff committed unprovoked assault on 
plaintiff on shipboard in the quarters and during the time 
assigned to plaintiff for rest between watches:

(a) Whether unseaworthiness and unfitness of crew 
and quarters is limited to the assaulting seaman’s known 
or obvious unfitness broadly to serve as a member of a 
ship’s crew, or covers particularly his unfitness and fail­
ure, when assigned to the same quarters as plaintiff, and 
defendant’s failure through him, to secure, allow and 
maintain to plaintiff his right to safe quarters and oppor­
tunity for rest between watches in safety from unpro­
voked assault by such seaman, and supported, under the 
findings, the District Court judgment for plaintiff herein.

(b) Whether under the Jones Act (46 U. S. C. See. 688), 
and Federal Employers’ Liability Act (45 IT. S. C. Secs. 51 
and 54) “ negligence” as covering assault is limited to 
negligence of officers in employing a seaman of brutal or 
dangerous reputation, or covers also both (i) the failure 
of defendant to secure to plaintiff safe quarters and op­
portunity for rest between watches in safety from unpro­
voked assault by an employee of defendant assigned to the 
same quarters, and (ii) the act of Hunter, an employee of 
defendant assigned to the same quarters as plaintiff, in



3

committing unprovoked assault on plaintiff in the quarters 
and during the time assigned to plaintiff for rest between 
watches.

2. Whether the District Court’s determination of unsea­
worthiness was a finding of fact which under Rules 52, 75 
and 76 of the Federal Rules of Civil Procedure, the Court 
of Appeals lacked authority to review or set aside or re­
verse, where defendant did not designate and the record 
did not contain and the Court of Appeals did not review 
the evidence or testimony or a condensed statement in 
narrative form of all or part thereof, nor determine there­
from that the District Court’s finding of unseaworthi­
ness was clearly erroneous, and where defendant did not 
serve with its designation any statement of such a point, 
and

3. Whether the Court of Appeals erred in refusing to 
notice plaintiff’s cross-appeal as to negligence and inade­
quacy of damages and in reversing plaintiff’s judgment 
and dismissing the complaint without consideration of 
plaintiff’s cross-appeal.

Statutes Involved

The statutes involved are the Jones Act (46 U. S. C. Sec. 
688) and Federal Employers’ Liability Act (45 U. S. C. 
Secs. 51 and 54).

46 U. S. C. Sec. 688 provides:
“ Any seaman who shall suffer personal injury in the 
course of his employment may, at his election, maintain 
an action for damages at law, with the right of trial by 
jury, and in such action all statutes of the United 
States modifying or extending the common-law right 
or remedy in cases of personal injury to railway em­
ployees shall apply * * *”



4

45 U. S'. C. Sec. 51 provides:
“Every common carrier by railroad while engaging 
in commerce between any of the several States * * * 
shall be liable in damages to any person suffering 
injury while he is employed by such carrier in such 
commerce, or, in case of the death of such employee
* * * for such injury or death resulting in whole or 
in part from the negligence of any of the officers, 
agents, or employees of such carrier, or by reason of 
any defect or insufficiency, due to its negligence, in its
* * * equipment * * # ’ ’

Sec. 54 provides:
‘ ‘ That in any action brought # * * by virtue of any of 
the provisions of this chapter to recover damages for 
injuries to, or the death of, any of its employees, such 
employee shall not be held to have assumed the risks of 
his employment in any case where such injury or death 
resulted in whole or in part from the negligence of any 
of the officers, agents, or employees of such carrier; 
and no employee shall be held to have assumed the 
risks of his employment in any case where the violation
* * * of any statute enacted for the safety of employees 
contributed to the injury or death of such employee.”

Statement

Plaintiff, a seaman, 52 years old, obtained a judgment in 
the United States District Court, Southern District of New 
York (Thomas F. Murphy, D. J.) for $15,000 damages and 
$75 costs, for injury sustained in an assault on him on 
shipboard in the quarters and during the time assigned to 
him for rest between watches, committed by another sea­
man, Hunter, assigned to the same quarters.

The defendant appealed to the Court of Appeals, Second 
Circuit, and filed a designation (R. 20) which did not



5

include any of the evdience, nor any condensed statement 
in narrative form of all or part of the testimony, nor any 
statement of points, pursuant to the Federal Rules of Civil 
Procedure, Rule 75, paragraphs c, d and g, nor does the 
record contain such a statement, under Rule 76. Plaintiff 
cross-appealed from the dismissal of the complaint as to 
negligence in Conclusion of Law No. 1 and inadequacy.

The record contains the following (R. 10-17) :
‘‘F in d in g s  on F act

“ 1. That plaintiff has been a seaman for 32 years 
and signed articles on the defendant’s S. S. Frederick 
Lykes at Houston, Texas, for a foreign voyage to the 
Far East which consumed about four months’ time.

“ 2. Aboard ship he shared quarters with two fellow 
seamen, including Hunter, his assailant. Through the 
entire course of the voyage to the Far East and return 
there was no trouble between plaintiff and Hunter. 
In fact plaintiff described their relationship as 
‘friendly.’ There was testimony, however, that on a 
single occasion in the Philippines Hunter had an argu­
ment with a fellow crew member but no blows were 
struck by either.

“ 3. On the evening of the assault, May 25, 1949, 
when the ship had returned to Galveston, Texas, plain­
tiff and Hunter had a can of beer together ashore and 
left each other under amicable circumstances. Plain­
tiff returned to the ship and went to sleep since his 
watch did not begin until 12 midnight. He reported 
for duty in the fireroom of the S. S. Frederick Lykes 
at a few minutes before midnight. Hunter, who had 
the 8 to 12 watch in the same fireroom, told him every­
thing was in order and left, presumably for his quar­
ters.

“4. Plaintiff did not find everything in order. There 
were no notations on the blackboard concerning the 
tips in the burner and some oil had been spilled on the



6

deck. The ship was being maneuvered to go upstream 
to Houston. Plaintiff inquired of the junior engineer 
what size tips Hunter had used and got no satisfactory 
answer.

“ 5. A few minutes later Hunter returned to the fire- 
room and shouted some vile remarks at plaintiff. 
Hunter told plaintiff that he had been firing long 
enough to know wdiere things were. This argument 
was broken up by the chief engineer, who told Hunter 
to go back to his quarters. No blows were struck—- 
in fact there was no physical contact at all.

‘ ‘ 6. Later that same morning after the plaintiff had 
completed his watch and returned to his quarters he 
was suddenly and without provocation beaten by 
Hunter. As a result plaintiff sustained severe injuries 
to his hip. These injuries caused plaintiff to be con­
veyed by ambulance that day to a hospital in Houston 
and from there to the Marine Hospital in G-alveston.

#  *  #

“ 11. The injuries that plaintiff sustained consisted 
of a fracture of the neck of the right femur. A pin 
placed through the femur to keep that bone in place 
was subsequently removed. Later the shaft of the 
femur was broken by surgeons in order to align it bet­
ter. At that time a metal plate was placed in the 
femur, which remains to the present. Plaintiff walks 
with the aid of a cane and is presently suffering 
pain. # # #

“ D iscussion

* there is no evidence that the shipowner was 
aware of any propensity of Hunter’s to assault fellow 
employees, either at the time Hunter was hired or at



7

any other time prior to the assault on the plaintiff 
. * * # In this case however there is no evidence of 
any appreciable probability of such assault by hiring 
or retaining Hunter. * * *

“ * * * But neither the situation of a justified or 
sufficiently provoked intentional battery are presented 
by the evidence in this ease. And the evidence being 
uncontradicted that plaintiff’s injuries were intention­
ally caused by the blows of Hunter, a fellow seaman, 
the plaintiff may recover for breach of seaworthi­
ness.

“  CowCLtrsioisrs on Law

“ 1. The plaintiff has failed to prove negligence on 
the part of the defendant and the complaint in this 
regard should be dismissed.

“ 2. Because of the assault and battery on the 
plaintiff by Hunter the plaintiff is entitled to be in­
demnified for the defendant’s breach of its warranty 
of seaworthiness in the sum of $15,000.”

The Court of Appeals (Swan, Ch. J., L. Hand and 
Augustus N. Hand, Ct. JJ .) did not have before it nor re­
view the evidence, nor consider whether nor determine 
therefrom that the finding of unseaworthiness was 
clearly erroneous under Federal Rules of Civil Procedure, 
Rule 52. It, nevertheless, reversed the judgment and dis­
missed the complaint with an opinion by L. Hand, J. on 
June 4, 1953. It held that “ it will not be necessary to 
notice” plaintiff’s cross-appeal.

On June 17, 1953, petitioner filed with the said Court 
a petition for rehearing, which was summarily denied 
without opinion on June 19, 1953.



8

Specification of Errors

The Court of Appeals erred:

1. In failing to give effect to the duty of defendant to 
provide and secure to plaintiff safe quarters and oppor­
tunity for rest therein in safety between watches, and to 
the violation of such duty through the action of defend­
ant’s employee, Hunter, in assaulting plaintiff without 
provocation on shipboard in the quarters and during the 
time assigned to plaintiff for rest.

2. In holding defendant not liable for the unprovoked 
assault of plaintiff by defendant’s employee, Hunter, in 
the quarters and during the time assigned to plaintiff for 
rest on shipboard between watches.

3. In holding, in effect, that plaintiff assumed the risk 
of unprovoked assault by defendant’s employee, Hunter, 
in the quarters and during the time assigned to plaintiff 
for rest on shipboard between watches.

4. In reversing the .District Court’s determination of 
unseaworthiness without having before it or considerng 
the evidence on which such determination was based, or 
determining therefrom whether such determination was 
clearly erroneous, and without defendant having stated 
any such point in its designation.

5. In holding it unnecessaary to notice plaintiff’s cross- 
appeal, and refusing to notice, consider and determine the 
questions of defendant’s liability for “ negligence” of de­
fendant’s officers, agents and employees and inadequacy 
of damages presented by such cross-appeal.



9

Reasons for Granting the Writ*

I. Respecting unseawortliiness, the Court of Appeals, 
and respecting negligence, both courts have failed to give 
effect to plaintiff’s right to and defendant’s duty to pro­
vide, and its warranty of, safe quarters and opportunity 
for rest therein in safety between watches, and the con­
sequent duty of Hunter, as an employee of defendant, as­
signed to the same quarters as plaintiff, to so conduct 
himself as to secure to plaintiff his right to safe quarters 
and opportunity for safely resting therein between watches. 
The decision has burdened plaintiff with assumption of the 
risk of unprovoked assault in such quarters by such other 
seaman assigned to the same quarters. This violates and 
conflicts with the provisions and the results or the prin­
ciples of the following statutes and decisions.

(a) By statute, as by maritime law, unseaworthiness in­
cludes being “ otherwise unfit in her crew, body, tackle, 
apparel, furniture, provisions, or stores” (46 U. S. C. Sec. 
653); every vessel must have “ suitable accommodations 
for * * * the crew * * * with safety to life” (46 IT. S. C. 
Sec. 391); “ crew quarters * # * properly ventilated and in 
a clean and sanitary condition” (46 U. S. C. Sec. 660a); 
“ a space of not less than one hundred and twenty cubic 
feet and not less than sixteen square feet, measured on 
the floor or deck of that place, for each seaman or appren­
tice lodged therein, and each seaman shall have a separate 
berth * * * ■ sneh place or lodging shall be securely con­
structed, properly lighted, drained, heated, and ventilated, 
properly protected from weather and sea, and, as far as 
practicable, properly shut off and protected from the 
effluvium of cargo or bilge water” (46 IT. S. C. Sec. 660-1); 
“ space allotment for lodgings” {Idem. ) ; “ a safe and warm

* This summary of reasons is submitted also as petitioner’s brief 
or argument.



10

room for the use of seamen in cold weather” (46 U. S. C. 
Sec. 669); and “ firemen # * divided into at least three
watches, which shall he kept on duty successively” (46 
TT. S. C. Sec. 673).

In Aguilar v. Standard Oil Go. of N. J 318 U. S. 724, 
728, 729, 731-732, 734, this Court held that these statutory 
provisions, “ designed to secure the comfort and health of 
seamen aboard ship” and “ recognizing the shipowner’s 
duty * * * do not create the duty. That existed long before 
the statutes were adopted. They merely recognize the 
pre-existing obligation and put specific legal sanctions, 
generally criminal, behind it * * * The legislation therefore 
gives no ground for making inferences adverse to the 
seaman or restrictive of his rights * * * Rather it furnishes 
the strongest basis for regarding them broadly, when an 
issue concerning their scope arises * * * Unlike men em­
ployed in service on land, the seaman, when he finishes 
his day’s work, is neither relieved of obligations to Ms 
employer nor wholly free to dispose of his leisure as he 
sees fit. Of necessity, during the voyage he must eat, 
drink, lodge and divert himself within the confines of the 
ship. In short, during.the period of his tenure the vessel 
is not merely his place of employment, it is the framework 
of his existence * * * In sum, it is the ship’s business which 
subjects the seaman to the risks attending hours of relaxa­
tion in strange surroundings. Accordingly it is but rea­
sonable that the business extend the same protections 
against injury from them as it gives for other risks of the 
employment” (318 U. S. 728, 729, 731-732, 734).

(b) In respect to these duties fellow-seamen are not 
fellow-servants, but each is the agent of the owner, who 
is liable for their violations of a duty of the owner (Scarf 
v. Metcalf, et al., 107 N. Y. 211); such duty being “ imposed 
by the law itself as one annexed to the employment” 
(Cortes v. Baltimore Insular Line, 287 U. S. 367, 371), and 
being “ non-delegable and not qualified by the fellow-servant 
rule” (Mahnich v. Southern S. S. Co., 321 U. S. ,96, 102).



11

(c) Provision and maintenance as a part of the owner’s 
warranty and duty are not limited to maintenance and 
cure after injury; for, as this Court has pointed out, under 
both the maritime law and the Jones Act (46 U. S. €. Sec. 
688) and Employers’ Liability Act (45 U. S. C. Sec. 51) a 
shipowner would be liable for damages, for example, in 
“ the case of a seaman who is starved during the voyage 
in disregard of the duty of maintenance with the result that 
his health is permanently impaired” (Cortes v. Baltimore 
Insular Line, 287 U. S. 367, 373), or if unwholesome food 
is served aboard ship, causing injury to a seaman (U. S. 
S. B. E. F. C. v. Greenwald, 2 Cir., 16 F. 2d 948).

Specifically as to quarters and right of safe relaxation 
and rest, a shipowner has been held liable under the Jones 
Act (46 U. S. C. Sec. 688) and Employers’ Liability Act (45 
U. S. C. Secs. 51, 54)—and it would seem would be equally 
liable under the maritime law—for damages for assault 
by another member of the crew on plaintiff in the quarters 
assigned to him on shipboard (Boudoin v. Lykes Bros. S. 8. 
Co., E. D. La., 112 F. Supp. 177, 180); for tuberculosis con­
tracted “ while occupying the sleeping quarters provided 
for him on board ship” due to their dampness and im­
proper ventilation (McCall v. Inter Harbor Navigation Co., 
154 Or. 252, 258) or through the failure to provide “ safe” 
quarters aboard ship, due to a leaky valve of a radiator 
spraying dampness on a seaman’s berth (Booker v. Alaska 
8. S. Co., 185 Wash. 71, cert, denied 299 U. S. 552); and for 
contagious itch contracted by a seaman aboard ship from 
another member of the crew (Compton v. Hammond Lum­
ber Co., 153 Or. 546, 555). The Ninth Circuit in Sundberg 
v. Washington Fish & Oyster Co., 9 Cir., 138 F. 2d 801, held 
that the issue as to plaintiff’s claim for damages was for 
the jury and the complaint had been erroneously dismissed 
where plaintiff, while off duty was injured by a bullet fired 
by another member of the crew* at sea lions for sport. 
In The Lord Derby, E. D. La., 17 Fed. 265, Judge Pardee 
in 1883 held a vessel liable in rem for damages where a



12

pilot was bitten by a dog chained under the cabin table 
“ because the cabin was the place where the libellant had 
been assigned to sleep, had slept, where his baggage was 
placed, and where he had a right to go and did go for i t ” 
(17 Fed. 266).

The decision herein thus conflicts in principle with each 
of the foregoing decisions.

(d) In Lillie v. Thompson, 332 U. S. 459, this Court, per 
curiam, reversed dismissal and sustained a complaint 
against a railroad where a criminal assault was committed 
by a stranger on a woman employed by defendant as a 
night depot agent, because there was “ a duty to make 
reasonable provision against i t” and “ Breach of that duty 
would be negligence, and we cannot say as a matter of law 
that petitioner’s injury did not result at least in part from 
such negligence” (332 U. S. 462). And where an employee, 
charged with any part of the duty to provide safe quarters, 
himself commits the assault, his act in violation of such 
duty is further independent ground for liability. Boudoin 
v. Lyles Bros. 8. 8. Co., E. D. La., 112 F. Supp. 177, 178, 
where a seaman was assaulted in his bed by another sea­
man. Compare Compagnie Generate Transatlantique v. 
Rivers, 2 Cir., 211 Fed. 294, cert, denied 232 U. S. 727, 
holding a steamship company liable for assault by a mem­
ber of the crew upon a passenger in the quarters assigned 
to her aboard ship.

(e) The 1939 amendment to the Euployers’ Liability Act 
(53 Stat. 1404, c. 685, 45 U. S. C. Sec. 54) obliterated from 
the law every vestige of the doctrine of assumption of risk 
(Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54, 58). 
This applies to seamen under the Jones Act, and “ Thus 
the shipowner becomes liable for injuries to a seaman 
resulting in whole or in part from the negligence of another 
employee” , as unqualifiedly and completely as for negli­
gence of an officer or agent of defendant. “ AYhile the acts



13

of negligence underlying such accidents may reach higher 
into the management hierarchy, the Federal Employers’ 
Liability Act compels us to go no higher than a fellow 
servant” (Johnson v. TJ. 8., 333 U. S. 46, 49).

The decision herein conflicts with this Court’s interpreta­
tion of the statutes in the Tiller and JoJmson cases, for the 
‘Court of Appeals refused even to consider defendant’s 
liability for the acts of Hunter and thus burdened plaintiff 
with assumption of the full risk of unprovoked assault by 
Hunter in the quarters assigned to plaintiff for rest.

(f) In Reck v. Pacific-Atlantic S. S. Co., 2 Cir., 180 F. 2d. 
866, the Court affirmed a judgment for $46,000 damages and 
$1,836 maintenance and cure where a seaman, suffering 
from delirium tremens two days after leaving port due to 
severe alcoholic intoxication while in port, and put to bed 
in his quarters aboard ship, got up and left his quarters 
and fell into an open hatch when Tackett, another crew 
member assigned to guard him, thought him asleep and left 
him unguarded about five minutes while going to the lava­
tory fifteen feet away. The. Court pointed out that “ the 
watch was then changing and Tackett could have obtained 
relief for a moment” (180 F. 2d 868). In McDonough v. 
Buckeye 8. 8. Co., D. C. N. D. Ohio, 103 F. Supp. 473, affd. 
Buckeye Steamship Company v. McDonough, 6 Cir., 200 
F. 2d 558, cert, denied 345 U. S, 926, the Courts gave plain­
tiff judgment for death of Kerr, a seaman who, while 
drunk, was left briefly on a dock eighteen feet wide where 
he fell and could not be lifted by Cox, a seaman assigned 
to assist him to the ship, and drowned while Cox went 
aboard ship and reported. It was held that “* * * the 
conclusion is inescapable that Cox disregarded his duty 
and failed to act as a reasonable man of ordinary pru­
dence” (103 F. Supp. 477).

In light of the Reck and McDonough cases, the decision 
herein means that while the company through its employees



14

owes a duty to a drunk, no duty is owed to a sober seaman 
who has just come off watch, and he assumes the risk of 
being assaulted and crippled for life in the quarters as­
signed to him for rest, committed without provocation by 
a seaman assigned to share the same quarters.

(g) But here, with Hunter assigned to share quarters 
with plaintiff—and when told by the chief engineer to go 
back to his quarters, where he then awaited and assaulted 
plaintiff (R. 11)—Hunter was charged with and violated 
duty as defendant’s employee, indeed the very duty of de­
fendant, to allow and secure to plaintiff safe enjoyment 
of such quarters and the opportunity to rest therein in 
safety upon coming off watch; duty as positive as were the 
duties of Tackett, Cox, Varner and Lamure, violated in the 
Reck (180 F. 2d 866), McDonough (103 F. Supp. 473, affd. 
200 F. 2d 558), Simdberg (138 F. 2d 801) and Rivers (211 
Fed. 294) cases supra. “ He was the representative of 
principal duties of the defendant” (Brown v. Pacific Coal 
Co., 241 U. S. 571, 573).

It was the act of the junior engineer in communicating 
with Hunter which had aroused Hunter; then in the 
engine room plaintiff enjoyed protection from the chief 
engineer (R. 11, pars. 4 and 5); but in the quarters assigned 
to him and Hunter, as the findings indicate, he could look 
only to Hunter for safety, and was helpless when Hunter, 
in violation of duty, assaulted him (R. pp. 10, 11, pars. 2 
and 6).

(h) Jamison v. Encarnacion, 281 U. S. 635 and Alpha 
Steamship Corporation v. Cain, 281 U. S. 642 establish 
that, given a duty, its violation by assault is equally 
“ negligence” as is a violation of duty by any less willful 
act or default, this Court saying:

“ As unquestionably the employer would be liable if 
plaintiff’s injuries had been caused by mere inad­
vertence or carelessness on the part of the offending 
foreman, it would be unreasonable and in conflict with



15

the purpose of Congress to hold that the assault, a 
much graver breach of duty, was not negligence within 
the meaning of the Act” (281 U. S. 641).

This definition of negligence as including assault is as 
applicable to the assault by Hunter here as to that by the 
foreman in the Jamison case, because defendant’s duty 
here was owed through Hunter as fully as through the 
foreman in the Jamison case.

(i) The Second Circuit Court of Appeals itself reversed 
a dismissal in Nelson v. American-West African Line, 2 
Cir., 86 P. 2d 730, cert, denied 300 U. S. 665, where a boats­
wain entered the crew’s quarters and assaulted a seaman 
in his bunk; affirmed recoveries in Koehler v. Presgue-Isle 
Transp., Co., 2 Cir., 141 P. 2d 490, where a fellow-seaman 
Todd assaulted plaintiff on the ladder and then on deck 
when plaintiff was returning from shore leave, and in 
Kyriakos v. Goulandris, 2 Cir., 151 P. 2d 132, where a fel­
low seaman Bouritis assaulted plaintiff about a mile from 
the ship while plaintiff was returning from shore leave; 
and reversed a dismissal in Keen v. Overseas Tankship 
Corp., 2 Cir., 194 F. 2d 515, cert, denied 343 U. S. 966, 
where a fellow-seaman Mruczinski assaulted plaintiff on 
deck when they had just returned from shore leave. In 
Koehler, the Court (Frank, J. writing) said of “ negli­
gence” that “ We think that it includes any knowing or 
careless breach of any obligation which the employer 
owes to the seamen. Among those obligations is that of 
seeing to the safety of the crew” (141 P. 2d 491). In 
Kyriakos, noting that “ Bouritis was hidden behind the 
corner of a building * * * to ambush the libellant,” the 
Court (Augustus N. Hand, J., writing) pointed out that 
“ Seamen have no legal power to rid themselves of dan­
gerous shipmates” (151 P. 2d 135).

The Nelson, Koehler and Kyriakos cases, correct in 
rsult, conflict in result with the case at bar.



16

(j) But the Nelson, Koehler and Kyriakos cases con­
tain erroneous reasoning or theme, and the Court of Ap­
peals purportedly gives effect herein to the erroneous 
reasoning instead of the correct result of these cases, in 
refusing to follow their result to sustain the recovery 
herein. This “ confusion which has developed in the ap­
plication of the two statutes” (Carter v. Atlantic <& Saint 
Andrews Bay By. Co., 338 U. S. 430, 431) in assault cases 
makes doubly important a review to clarify and determine 
in the case at bar the points really justifying recovery. 
Thus, in Nelson, although the assault of Nelson in his bunk 
during rest between watches clearly established a violation 
by the boatswain of defendant’s duty to secure to Nelson 
safe quarters and opportunity for rest in safety between 
watches,—and the Court itself stated that “ In truth it was 
at best an act of wanton tyranny to get him out of his 
bunk at that time, to say nothing of the violence used in 
effecting i t”—the Court nevertheless erroneously said 
of the boatswain’s assault that “unless there was 
some evidence that he supposed himself engaged upon the 
ship’s business the ship was not liable” (86 F. 2d 732). 
And although the Court stated that “ the boatswain was 
blind drunk, and through his clouded mind all sorts of 
vague ideas may have been passing; the fact that he had 
made himself incompetent to further the ship’s business 
was immaterial” , the Court seized upon the bare fact that 
“ he told him not only to get up, but to ‘turn to’ ” as being 
“ some evidence that he meant to act for the ship.” The 
Court then states the astounding doctrine that, “ however 
imbecile his conduct” , the boatswain’s drunken use of 
these two words “ turn to” spelt the difference between lia­
bility of defendant or assumption by Nelson of the risk of 
assault in his bunk;—that the same assault, in identical 
detail except lacking use by a drunk of the words “ turn 
to” , would have required that Nelson bear the risk and 
the injury, and that the company be held not liable.

This reasoning in the Nelson case, and that herein, 
ignores the violation of the duty to provide safe quar­



17

ters and opportunity for rest in safety between watches, 
and also is in conflict with Boudoin v. Lykes Bros. S. S. 
Co., E. D. La., 112 F. Supp. 177, a District Court decision 
in the Fifth Circuit, and in conflict with this Court’s defini­
tion of negligence in the Jamison and Cain eases, and as­
sumption of risk rulings in the Tiller and Johnson cases.

Then, in Kable v. United States, 2 Cir., 169 F. 2d 90, 
where the chief officer was assaulted by the chief engineer, 
the Second Circuit, holding the defendant not liable, stated 
it distinguished the Nelson, Cain and Jamison cases as 
having “ no application here, for in each the assault was 
committed by a superior officer on an immediate inferior” 
and were “ directly related to the doing of the ship’s 
work” (169 F. 2d 92). The Koehler (141 F. 2d 490), 
Kyriakos (151 F. 2d 132) and Keen (194 F. 2d 515) cases, 
though correctly sustaining liability for assault by a fel­
low-seaman, ignore as the basis of liability the assaulting 
seaman’s violation of duty, and emphasize rather only 
the negligence of “ officers” in hiring or retaining dan­
gerous men (141 F. 2d 491; 151 F. 2d 135; 194 F. 2d 516) 
and consequent unseaworthiness (194 F. 2d 518).

This particular aspect of the Nelson, Kable, Koehler, 
Kyriakos and Keen decisions of the Second Circuit, of 
course, is directly contrary to this Court’s holding in 
Johnson v. United States, 333 U. S. 46, 49, that the Act 
“ compels us to go no higher than a fellow servant.”

But following this particular theme of its own assault 
decisions, rather than their results and the doctrine of this 
Court’s decisions, the Court of Appeals now holds herein 
that “ every workman is apt to be angry when a fellow 
complains of his work to their common superior; * * * 
Sailors lead a rough life and are more apt to use their 
fists than office employees; * * * when a man’s blood is up,*

* There is no finding that plaintiff “complained” ; but to whom 
should he complain if not to an officer? It was the junior engineer 
who got Hunter’s “blood up.”



18

lie will go farther than he should; * * * Such a set-to 
seldom results in serious injury when only fists are used, 
# * # We are not satisfied that the findings proved that 
Hunter was a man unfit to serve.” This is the language 
of assumption of risk,* now completely obliterated from 
the law. Moreover, the negligent servants were not held 
unfit to serve but to have violated duty in Tiller v. Atlantic 
Coast Line R. Co., 318 U. S. 54, Johnson v. II. 8., 333 IT. S. 
46, and Anderson v. Atchison, Topeka and Santa Fe Ry. 
Co., 333 U. S. 821. Tackett, Cox and Varner were not un­
fit to serve but violated duty in the Reck (180 F. 2d 866), 
McDonough (103 F. Supp. 473, affd. 200 F. 2d 558) and 
Sundberg (138 F. 2d 801) cases. Seldom would Tackett’s 
going to the lavatory, or Cox’s briefly leaving a man he 
could not carry or Varner’s shooting at sea lions cause 
injury or death as in the Reck, McDonough and Sundberg 
cases.

(k) The decision herein, if allowed to stand, will mean, 
in its effect, that in assault cases the word ‘‘employee” is 
to be ignored or excised from both the liability and as­
sumption of risk sections of the Federal Employers’ 
Liability Act (45 U. S. C. Secs. 51 and 54), as incorporated 
in the Jones Act (46 U. S. C. Sec. 688); that despite the 
use in the statute of the word “ employees” equally with 
“ officers”, a seaman assumes the risk of any assault not 
committed by an “ officer” or not due to an “ officer’s” 
negligence in hiring an unfit man, and that the seaman as­
sumes the risk of quarters made unsafe by conduct of a 
fellow seaman assigned to share the quarters. The con­
flict and confusion require review (Cf. Carter v. Atlanta 
& Saint Andrews Bay Ry. Co., 338 TJ. S. 430, 431); the de­
cision is too important not to review, too erroneous not to 
reverse.

* Compare for similarity of reasoning and ruling Baltimore & 
Ohio RR. Co. v. Baugh, 149 U. S. 368, decided in 1893; fifteen 
years before enactment of the Employers’ Liability Act and twenty- 
seven years before the Jones Act.



19

II. The reversal of the determination of unseaworthiness, 
on the record herein, violates Fed. Rules of Civ. Proc., 
Rules 52, 75 and 76, and conflicts with the following deci­
sions of this Court and the highest judicial authority of 
England which have consistently held that the issue of 
unseaworthiness is an issue of fact, and the determination 
by Court or jury of unseaworthiness (or seaworthiness) 
is a finding of fact (Maknich v. Southern Steamship Co., 
321 U. S. 96, 98; Luckenbach v. W. J. McCahan Sugar Re­
fining Co., 248 IT. S. 139, 145; W. J. McCahan Sugar Re­
fining Co. v. S. S. Wildcroft, 201 IT. S. 378, 387; The Carib 
Prince, 170 U. S. 655, 658; Steel v. State Line S. S. Co., 
L. R, 3 App. cas. 72, 81, 82, 84, 86, 90, 91).

The single defective rivet in the peak tank in The Carib 
Prince, and the insecurely latched port in Steel v. State 
Line S. S. Co., would have been immaterial with cargoes 
of marble or teakwood but supported fact finding of un­
seaworthiness with the cargoes of bitters and wheat. 
Maknich v. Southern Steamship Co. states unseaworthiness 
includes being—even due to the act of a fellow servant— 
“ inadequate for the purpose for which it was ordinarily 
used” (321 IT. S. 103, 104). The argument of availability 
of good rope was inappropriate “ because * * * it was the 
stage which was unseaworthy” (321 IT. S. 104). See also 
Carlisle Packing Co. v. Sandanger, 259 IT. S. 255. Unsea- 
worthiness is relative to the facts and evidence of each 
ease.

Here, the condition—the “ seaworthiness” or “ unsea­
worthiness”—of the quarters assigned to plaintiff, in­
cluded the assignment of Hunter to share such quarters. 
In turn, the fitness or “ seaworthiness” or “ unsea­
worthiness” of Hunter included not merely his qualifica­
tions or fitness as a member of a crew, but his fitness as 
a part of the quarters assigned to plaintiff. As with negli­
gence (Johnson v. United- States, 355 IT. S. 46, 48), so, we 
submit, with unseaworthiness (Cf. Carlisle Packing Co. v.



20

Sandanger, swpra) res ipsa loquitur applies in determining 
this factual issue; the question whether the injury was 
“ in fact the result of causes beyond the defendant’s 
responsibility” was a factual question (Gleeson v. Virginia 
Midland B. B. Co., 140 U. S. 435, 444; Terminal B. Assn, of 
St. Louis v. Stangel, 8 !Cir., 122 F. 2d 271, 276, cert, denied 
314 U. S. 680, cited in Johnson v. United States); and all 
the evidence was involved in its determination.

The District Court’s judgment for plaintiff was based 
upon its determination of unseaworthiness from “ the 
evidence in this case” (R. 16, fol. 48). The Court of 
Appeals, however, did not have before it “ the evidence 
in this case” ; it had only the District Court’s decision 
containing findings and conclusions. Under Federal Rules 
of Civil Procedure, Rules 75 and 76, defendant in ap­
pealing did not designate any part of the evidence, nor 
a condensed statement in narrative form of all or part 
of the testimony, nor a statement of points (Rule 75, 
pars, (c), (d) and (g)), nor does the record contain such 
a statement (Rule 76). If defendant intended contesting 
the factual determination of unseaworthiness, plaintiff 
was entitled to notice of this, and to the right to have 
the evidence included.

Defendant thus was in no position to contend that, and 
the Court of Appeals had nothing from which it could 
consider whether, the determination of unseaworthiness 
as a finding of fact was clearly erroneous. Under Rule 
52 “ Findings of fact shall not be set aside unless clearly 
erroneous.” This is to be determined “ on the entire evi­
dence” (United States v. United States Gypsum Co., 333 
U. S. 364, 395). See also 5 Moore’s Federal Practice, 2d 
Ed., pages 2611-2629 and cases cited. The Court of Appeals 
did not consider the evidence nor purport to determine 
therefrom that the finding was “ clearly erroneous.”



21

Its decision thus conflicts with the foregoing decisions 
and violates the foregoing rules; and the question is a 
most important one affecting appeals from judgments in 
personal injury actions (Cf. United States v. Gypsum Co., 
333 U. S. 364-).

III. The District Court’s ruling as to negligence, how­
ever, was solely as a conclusion of law (R. 17), based upon 
no showing that the shipowner was aware of any pro­
pensity of Hunter’s to assault fellow employees (R. 13). 
But this ignored as matter of law the theory of plain­
tiff’s case. Contrary to Johnson v. United States, 333 
U. S. 46, 49, both Courts herein, as matter of law, have 
looked only “ higher than a fellow servant.”

Both Courts also have ignored the fact that both the 
Chief Engineer and junior engineer were aware of (and 
apparently occasioned) Hunter’s wrath and his attempted 
assault of plaintiff in the engine room.

Contrary to the authorities noted under I, supra, both 
Courts have ignored also the non-delegable duty of de­
fendant to provide plaintiff safe quarters and oppor­
tunity to rest in safety between watches.

The findings as to unseaworthiness equally establish 
“ negligence” in these respects sufficient to support the 
District Court’s judgment on this ground as distinct 
from the bare ground of “ unseaworthiness” (Alpha 
Steamship Corporation v. Cain, 281 U. S. 642; Carlisle 
Packing Co. v. Sandanger, 259 U. S. 255). Plaintiff cross- 
appealed to present these questions, as well as the in­
adequacy of damages. It consequently was error—in­
deed, a denial of due proces of law—for the Court of Ap­
peals to hold that “ it will not be necessary to notice his 
appeal.” This itself is so important as to require review 
(Cf. Alpha Steamship Corporation v. Cain; Carlisle Pack­
ing Co. v. Sandanger, stipra; Busynski v. Luckenbach 
Steamship Co., 277 U. S. 226).



22

CONCLUSION
The decision of the Court below involves questions 

of the greatest importance to seamen, upon which the 
Court of Appeals clearly erred; questions of the great­
est importance respecting appellate practice, upon 
which said Court also clearly erred; and impressive 
conflict upon all questions with decisions of this and 
other high Courts; and a writ of certiorari should be 
granted and the case should be reviewed and reversed 
by this Court.

Dated, New York, N. Y., July 31, 1953.

Respectfully submitted,

Charles A ndrews E llis, 
Counsel for Petitioner.

S ilas Blake Axtell, 
Charles A ndrews E llis, 
Martin G. Stein , 

of Counsel.



[6599]