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March 11, 1954


The opinion of the court was delivered by: HARTSHORNE

Does a pot-pourri of homosexuality and attempted murder create an unseaworthy ship? Such is the primary issue here presented, the other, the validity of a seaman's release.

Plaintiff Thompson, a colored cook, at sea, signed on the S. S. Rosina Marron, a tanker owned and operated by defendant. The vessel carried a complement of some forty men, including among them one Medina, a Cuban, as crew messman. Medina was definitely effeminate, a 'queer', called Rosina or other feminie names by all aboard the ship, who at times was seen kissing other members of the crew. This was clearly not to the liking of Thompson, a big, clean-cut masculine individual, who neither smoked nor drank. But nothing outwardly had occurred between the two on their voyage from Marcus Hook, Pennsylvania, to Corpus Christi, Texas, in January 1950, save some words when Median repeatedly gave Thompson the crew's 'short orders' in Spanish, which thompson could not understand, as he had repeatedly advised Medina.

 The testimony further indicates that one Pittaway, to whose room Medina constantly resorted after evening chow, had been given a wrist watch by Medina and was apparently a favorite of his. Thompson, who was fond of cards, was accustomed also to go to Pittaway's room, shared with one Schopf, to get Pittaway and Medina, and perhaps others, to play cards with him, later in the evening. The night of January 12, 1950 Thompson went to Medina's room or 'fo'c'sle', found the door not open as usual, but closed, and on entry says he found Medina and Pittaway, and Schopf, as well, engaged in a homosexual act. Neither Medina nor Pittaway testified. Schopf denied such acts himself, and also on the part of the other two. But Schopf does admit that when Thompson entered, he said to Thompson that 'it was a good thing you came'. So the innate tendencies of Medina were obviously finding an outlet at that time, at least with Pittaway.

 In any event, it is clear that Thompson promptly stated what he had seen, both to his superior, the Chief Steward, Schiffers, and to their Union delegate, Kaplus. So the Union delegate called a meeting of all concerned, the decide whether to report the matter to the Coast Guard, or to have it settled then and there at the Union meeting, as to whether Medina should be compelled to leave the ship.

 But this Medina refused to do, going into no details, but simply making a flat denial of the charge, and leaving the meeting. However, he did not leave till after one of those present had called Thompson's attention to the fact that he, Thompson, was the only one to support and make the charge to the Coast Guard against Medina and the others.

 A few minutes later the meeting broke up, the rest leaving more or less together. Suddenly, as Thompson, in the darkness, turned a corner on the boat deck, he was struck on the head from behind three times, by what afterwards turned out to be his own heavy meat cleaver, and Medina's high-pitched voice cried 'I'm going to kill you'. Were it not for the fact that Thompson's skull was much thicker than ordinary, as the doctors testified, this intent of Medina would undoubtedly have succeeded. As it was, Thompson's thick skull was cut through both tables. He was promptly given first aid, taken to his stateroom in critical condition, with unconsciousness for an uncertain period, lifted ashore at Corpus Christi and taken to the hospital there, on landing the next day. A short time after the vessel docked, the Coast Guard saw him but briefly in his then critical condition, and made a report on the situation, but apparently interviewed the other witnesses but casually, though objections to the introduction of the report in evidence were withdrawn toward the close of the trial. However, both for the above reason and because the truth as to Medina's homosexuality with Pittaway is relatively unimportant, as shown later, this report is of little moment. Medina was ultimately tried and convicted on the murderous assault charge, the homosexual angle of the matter apparently not being moved under the circumstances. Meanwile, Thompson was moved from the Coprus Christi Hospital to the New Orleans Hospital, as well as to others, and later to that at Stapleton, Staten Island, at the latter of which he received both in-patient and out-patient treatment, the latter still continuing to the present day.

 Thompson still claims to be suffering from severe pains in the right side of his head, the site of the injury, down through the side of his face and ear, with hot and cold spells there, severe headaches, and a peculiar restless and dissatisfied urge, which drives him continually, to get away from himself, and from whatever he is doing to something else. In April 1950, when he was first discharged from the U.S. Marine Hospital at Stapleton, the diagnosis was 'encephalopathy due to trauma', i.e., brain damage due to a blow, and the medical testimony indicates the above symptoms are all typical of that condition. True, he had had certain diseases, such as lues, duodenal ulcer, etc., all of which might have had a bearing on his neuropsychiatric condition, but the testimony clearly indicates the major cause of his neuropsychiatric condition to have been the fractures of his skull by the meat cleaver in the hands of Medina.

 Meanwhile, shortly after his first discharge from Stapleton, April 28, 1950, he went to one Barron, of the Ship Owners Claim Bureau, representing defendant, to get settlement moneys on his case, having refused the importunities of a series of lawyers who sought to represent him. Meanwhile, Barron, or another agent of the defendant, had had Thompson examined by their Dr. Farr, who reported that Thompson then, in May 1950, would be able to return to work in three months, and had but a 10% permanent disability. This was in fact somewhat similar to the prognosis then made by the hospital itself, which was for a 'good' recovery, and that he would be fit for duty May 29th. But that both Dr. Farr and the hospital were incorrect in their prognosis as to the length and amount of Thompson's mental and neuropsychiatric disability appears quite clear. For instance, not three months, but a year, later, we find him again confined in the Stapleton Hospital, where, among the treatment of other disconnected conditions, we find he had a 'neuropsychiatric consultation', and a year after that, at the New Orleans Hospital, he was diagnosed, among other conditions, as having a 'schizophrenic reaction'. Finally, now, three and one-half years after Dr. Farr's examination, Thompson is still receiving out-patient treatment at the Stapleton Marine Hospital, where they recently gave him a head X-ray, obviously in order to ascertain any objective basis for his neuropsychiatric complaints. While the X-ray was negative, Dr. Farr himself admits these complaints are real, not sham. Furthermore, the undisputed testimony shows that Thompson can not serve in his old position as cook, since the heat of the stove so seriously affects the pains in his head, and that he now is acting as a utility or mess man. Not only is this a job of lower rating than cook, but it of course carries substantially lower pay.

 In any event, at Thompson's settlement conferences with Barron, the latter, or defendant's other agent, told Thompson of this prognosis of Dr. Farr, now found to be incorrect, and Barron refused to consider any greater settlement figure than $ 4,000 because he insisted to Thompson that Thompson was practically well then. Barron admits that if he had then known that Dr. Farr's prognosis was incorrect and that Thompson's future would be as serious as it has now turned out to be, he would not have evaluated his case at $ 4,000, but would have told Thompson to get a lawyer before he settled. Barron also told Thompson he thought he had a weak case on liability. For at that time the case of Keen v. Overseas Tankship Corp., 2 Cir., 1952, 194 F.2d 515, certiorari denied 343 U.S. 966, 72 S. Ct. 1061, 96 L. Ed. 1363, had not been decided, and Barron thought that notice to defendant of Medina's alleged vicious character, a difficult thing to prove, was essential, in order to impose liability on the owner of the ship. But it is clear that this is not the law, and that a seaman can recover if hurt by unseaworthy personnel, in the same way that he can if he is hurt by unseaworthy materiel, and quite regardless of the ship owner's notice or negligence.

 Thus, as a result of these incorrect, though not intentionally false, statements of both fact and law to Thompson, this man, unrepresented by counsel, and without any independent medical advices of his own, signed a full release of his rights for the sum of $ 4,000. Such are the facts in outline.

 These facts were presented to this Court sitting without a jury, on waiver by both sides, upon a complaint (a) for negligence, under the Jones Act, (b) for unseaworthiness, (c) for maintenance and cure, though the last-named cause of action is not pressed, under the circumstances. To this complaint defendant entered appropriate denials. We turn to the legal issues.

 The recovery under the Jones Act, and derivatively under the Federal Employers' Liability Act *fn1" depends upon the negligence of the employer, and this, in turn, depends upon plaintiff's proving that defendant did not use reasonable care to provide plaintiff with a reasonably safe place to work, which caused his injury, in that he was subjected to working with a crew member -- Medina -- of a vicious disposition and not of a disposition equal to that of the ordinary member of a crew. Keen case, supra. To support such a cause of action, plaintiff must also show that defendant knew that Medina was either actually homosexual and dangerous, as distinguished from being merely effeminate, or, on the other hand, was otherwise vicious, in being willing to premeditatedly murder on provocation, as above. But since these elements of defendant's negligence and knowledge are not essential to recovery for unseaworthiness, and the quantum of damages in either aspect is much the same, we turn to the consideration of the case in the latter aspect.


 The Keen case (194 F.2d 518), decided since the occurrences herein, in fact since the execution of the release herein, correctly holds that a vessel can be rendered unseaworthy either by defective materiel or personnel, provided the latter be shown to be not the 'equal in disposition and seamanship to the ordinary men in the calling.' Thus an owner would be liable 'if he signs on a homicidal paranoiac, whose appearance does not betray his disposition.' This case further makes clear the fact that, just as a latent defect in material, unknown to the shipowner, suffices to render a vessel unseaworthy, so personnel, defective under the above standard, renders a vessel unseaworthy, and the owner liable, even if such defect is latent and unknown to the owner. ...

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