608 F2d 1312 Pashby v. Universal Dredging Corporation

608 F.2d 1312

Barry James PASHBY, Appellant,
v.
UNIVERSAL DREDGING CORPORATION, and Anchor Barge No. 10,
Official No. 554497, Appellees.

Nos. 77-1442, 77-1522.

United States Court of Appeals,
Ninth Circuit.

Dec. 3, 1979.

Stuart M. Cowan, Cowan & Frey, Honolulu, Hawaii, for appellant.

William L. Fleming, Honolulu, Hawaii, for appellees.

Appeal from the United States District Court for the District of Hawaii.

Before TRASK and GOODWIN, Circuit Judges, and LARSON,* District Judge.

PER CURIAM:

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1

Appellant Pashby was employed by appellee Universal Dredging Corporation as a deckmate. On October 5, 1973, he was working on Anchor Barge No. 10. Appellant had occasion that morning to reprimand a deckhand, one Rodriguez. Mr. Rodriguez took exception to the rebuke and a brief scuffle ensued. Forty-five minutes later, Mr. Rodriguez approached appellant from the rear without warning and assaulted and battered him with an 18 inch eye bolt, causing head, leg and hand injuries.

2

Appellant brought this suit under the Jones Act, 46 U.S.C. § 688, charging negligence and breach of the duty of seaworthiness. The district court awarded summary judgment to the appellees, prompting this appeal by Mr. Pashby.

3

Summary judgment is properly awarded only when no genuine issue of material fact remains after the facts have been examined in a light most favorable to the party opposing the summary judgment motion. Santos v. Scindia Steam Navigation Co., 598 F.2d 480, 483 (9th Cir. 1979); Blake v. City of Los Angeles, 595 F.2d 1367, 1377 (9th Cir. 1979).

4

A vessel may be unseaworthy because of "defective" crew members. Boudoin v. Lykes Bros. Steamship Co., 348 U.S. 336, 339, 75 S.Ct. 382, 99 L.Ed. 354 (1955); Smith v. American Mail Line, Ltd., 525 F.2d 1148, 1150 (9th Cir. 1975). A seaman must be reasonably fit; he must be equal in disposition to the ordinary men of that profession. Calcagni v. Hudson Waterways Corp., 603 F.2d 1049, 1051 (2d Cir. 1979); Claborn v. Star Fish & Oyster Co., 578 F.2d 983, 985 (5th Cir. 1978), Cert. denied, 440 U.S. 936, 99 S.Ct. 1281, 59 L.Ed.2d 494 (1979); Harbin v. Interlake Steamship Co.,570 F.2d 99, 103 (6th Cir.), Cert. denied, 437 U.S. 905, 98 S.Ct. 3091, 57 L.Ed.2d 1135 (1978); Kirsch v. United States, 450 F.2d 326, 327 (9th Cir. 1971); Stechcon v. United States, 439 F.2d 792, 793-94 (9th Cir. 1971); Boorus v. West Coast Trans-Oceanic Steamship Line, 299 F.2d 893, 895-96 (9th Cir. 1962).

5

The crucial and often cited questions were formulated in Boudoin,supra, 348 U.S. at 340, 75 S.Ct. at 385: "Was the assault within the usual and customary standards of the calling? Or is it a case of a seaman with a wicked disposition, a propensity to evil conduct, a savage and vicious nature?" An attack with a dangerous weapon has frequently been found to be evidence of a wicked and dangerous disposition. Calcagni v. Hudson Waterways Corp., supra; Claborn v. Star Fish & Oyster Co., supra, at 986; Clevenger v. Star Fish & Oyster Co., 325 F.2d 397, 401-02 (5th Cir. 1963). The Claborn court went so far as to find that such an attack established unseaworthiness as a matter of law.

6

The nature of the assault here raises factual questions which are not properly resolved on a summary judgment motion. The judgment below is reversed and the case remanded for further proceedings.

*

The Honorable Earl R. Larson, United States Senior District Judge for the District of Minnesota, sitting by designation