L. HAND, Circuit Judge.
The plaintiff, Keen, a seaman on board the defendant's ship, "Meuse Argonne," appeals from a judgment entered upon the verdict of a jury against him, in an action to recover damages for personal injuries suffered in circumstances we shall state in a moment. As he did not ask for a directed verdict, the only questions open upon the appeal are the judge's rulings upon the admission of evidence, and his instructions to the jury. In order to understand the correctness of these it is necessary to state the facts in a little detail. Keen signed on as an A.B. and was part of the deck crew of the ship, a tanker. The second cook on board was named Mruczinski, and while the ship was in Manila, he and Keen went ashore on leave, and came back together on a launch. Mruczinski was drunk, as perhaps Keen was too; in any event the two got into a quarrel, either on the launch over Keen's supposed failure to pay Mruczinski a gambling debt, or over Mruczinski's lighting a cigarette after they had boarded the ship. In a scuffle which followed Keen knocked down Mruczinski with his fist. Mruczinski picked himself up, went to the galley, got hold of a meat cleaver, came back and from behind struck Keen a blow in the head, causing him serious injuries. Keen sued the defendant in a complaint in two counts, of which the second was for maintenance and cure, on which he obtained a judgment that is not before us. This appeal concerns only the verdict and judgment on the first count, which alleged (1) that the defendant was guilty of negligence in allowing a man of Mruczinski's known vicious proclivities to become a member of the crew, and (2) that the defendant was also liable because of the unseaworthiness of the ship, owing to Mruczinski having those proclivities. In his charge the judge told the jury that the first question they were to decide was whether the defendant had been negligent in failing to use proper care in signing Mruczinski on in the first place, and in keeping him on board after he had disclosed his violent nature. As to the unseaworthiness of the ship the charge was really no different, as appears from the following excerpt: the defendant "was under no duty * * * to inquire or examine into the physical or mental condition of a prospective employee," nor was it "an insurer" of his condition. If the cook was a man of "violent, vicious propensities" which "would constitute a menace," the defendant was bound to use care "to remove the peril,"
If the plaintiff had excepted to this passage in the charge, we should not have hesitated to reverse the judgment, because, for reasons which will appear, we hold that it was not a correct statement of the law. It has long been settled that the assured's warranty of his ship's seaworthiness in a maritime policy is broken if the master or the crew are not competent for their duties. The King's Bench so held in 1811, Tait v. Levi, 14 East 481 (see also Walker v. Maitland, 5 B. & Ald. 172); the Supreme Court assumed as much in 1828, McLanahan v. Universal Insurance Company, 1 Pet. 170, 183, 7 L.Ed. 98; and the same doctrine lay behind the decision in Draper v. Commercial Insurance Company, 21 N.Y. 378. Moreover, in a suit by cargo against the ship in rem, Judge Betts in The Gentleman, Olcott, 110, Fed. Cas.No.5,324, made one ground of his decree in favor of the libellant that the crew were disabled by fever when the ship broke ground; and, although Mr. Justice Nelson, Fed.Cas.No.5,323, reversed this decree upon the facts, the whole discussion presupposed that, had the crew been in fact unfit for their duty, Judge Betts would have been right. The Ninth Circuit in Re Pacific Mail S. S. Co., 130 F. 76, 69 L.R.A. 71, held the shipowner liable without limitation for the loss of passengers' lives — and for the loss of life of one member of the crew — because the inability of the officers to communicate with a Chinese crew made the crew itself unfit for their duty and the ship unseaworthy. On the other hand, with the exception of the seaman just mentioned in Re Pacific Mail S. S. Co., supra, as to whom the court suggested no distinction, in none of the decisions we have mentioned did a member of the crew recover for personal injuries. In 1903 in the often cited case of The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760, the Supreme Court reviewed the law at length relating to an injured seaman's right against the owner; and held that he could not recover from the owner for injuries suffered through the negligence of another seaman, invoking the fellow servant doctrine of the common law; but it recognized that it was otherwise if his injuries arose from the unseaworthiness of the ship. In all the decisions which followed until 1924 the seaman had been injured by some defect in the ship's hull and gear, not because a fellow member of the crew had proved incompetent. However, in that year in The Rolph, 299 F. 52, the Ninth Circuit did allow recovery to a seaman for an assault by a particularly brutal and vicious mate. It based the recovery upon the unseaworthiness of the vessel, and declared (299 F. at page 55), that the ship was unseaworthy "where the mate [was] a man known to be of a most brutal and inhuman nature, one known to give vent to a wicked disposition" to assault sailors. It is certainly possible to read the decision, as the judge did in the case at bar, so as to limit the liability to situations where the owner knows that the seaman is unfit; and it is much more likely than not that the court so intended. However, in fact the owner did know the mate's brutal disposition, and that is all that the court had to decide. Moreover, even by way of dictum it did not say that the result would have been different if they had not had that knowledge. We do not take it as an authority for that proposition. Judge Patterson in The Magdapur, D.C., 3 F.Supp. 971, used language that made no distinction between seaworthiness in hull and gear and in personnel; any more than we did in Kable v. United States, 2 Cir., 169 F.2d 90, 92; but neither case is a holding on the point now before us. In Spellman v. American Barge Line Co., 176 F.2d 716, 721, one of the three grounds for the Third Circuit's reversal was that there was evidence from which the jury might find that the master was incompetent, which made the ship unseaworthy; and, although it did not appear that the incompetence was known to the owner, no such condition was imposed upon the new trial. Moreover, the master's incompetence was of a kind that it is scarcely conceivable that the owner should have known.
It must be owned that we have not found any decision which deliberately
For the foregoing reasons we think that the judge misdirected the jury, but, since the plaintiff was content with the charge, we should not reverse the judgment, if there were nothing more in the record to justify doing so. There was. The plaintiff's effort throughout his case was to show that Mruczinski had been a drunken, dirty, quarrelsome seaman, who was
Judgment reversed; new trial ordered.
"Mr. Fogler: Judge, what I had in mind was the famous Scandrett in (sic) the Smith v. Socony Vacuum, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265. In that case the Court held that where there is unseaworthiness regardless of principles of negligence or regardless of the fact that it places upon the shipowner the burden of an insurer, there is responsibility; and in this case, my contention in that respect for adducing that proof of insanity was that if they found the man was insane, liability followed from his acts regardless of whether they knew or didn't know.
"The Court: Well, Mr. Fogler, I think I have indicated that I don't agree with you at all on the fact, that on your cause of action for indemnity the shipowner is in the position of an insurer, because I recognize a distinction between the crew, the officers, a lawsuit involving a member of the crew, and that line of cases that have to do with lawsuits by passengers and freighters or cargo owners, and if you will read the Rolph case very carefully you will find implicit in that decision that distinction, and in fact it finally boils itself down to this very fundamental element. Of course, the Rolph case was handed down long before the Jones Act, 46 U.S.C.A. § 688, came into existence, but today, where a member of the crew brings an action, as I understand the law, from (sic) indemnity under the Maritime law, and for negligence under the Jones Act, his proof is the same; he must establish negligence, and I don't consider that those cases which deal with the rights of passengers and the rights of people who put cargo on board, as