

                    [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT
                                         

No. 97-1776

                          JOHN FORD,

                     Plaintiff, Appellee,

                              v.

              WOODS HOLE, MARTHA'S VINEYARD AND
                NANTUCKET STEAMSHIP AUTHORITY,

                    Defendant, Appellant.
                                        

No. 97-2007

                          JOHN FORD,

                    Plaintiff, Appellant,

                              v.

              WOODS HOLE, MARTHA'S VINEYARD AND
                NANTUCKET STEAMSHIP AUTHORITY,

                     Defendant, Appellee.
                                         

        APPEALS FROM THE UNITED STATES DISTRICT COURT

              FROM THE DISTRICT OF MASSACHUSETTS

         [Hon. Joseph L. Tauro, U.S. District Judge]                                                               

                                         

                            Before

           Selya, Boudin, and Lynch, Circuit Judges.                                                               
                                         

Thomas E. Clinton  with whom Clinton &amp;  Muzyka, P.C. was on  brief                                                                
for defendant.
David F. Anderson with  whom Latti Associates LLP was on brief for                                                             
plaintiff.

                                      

                      February 20, 1998                                                      
                                      

     Per  Curiam.    The Woods  Hole,  Martha's  Vineyard and                            

Nantucket  Steamship  Authority ("the  Steamship  Authority")

appeals from a  jury verdict awarding  damages to John  Ford.

Ford  was an  able bodied  seaman employed  on the  Steamship

Authority's  M/V Eagle, a  passenger and car  ferry operating

between Hyannis and  Nantucket, Massachusetts.  On the day of

Ford's misfortune, February 24, 1995,  the Eagle was laid  up

for general maintenance in Woods Hole, Massachusetts.  

     The drama began when one of  Ford's fellow seamen, Byron

Costa, approached  a paint  trailer on the  pier next  to the

ship.  Danny Pryor, the ship's boatswain and Costa's brother-

in-law, was  with him.   Costa was  holding a  "manhelper," a

long wooden pole with a  metallic tip, designed to connect to

a paint  roller to  increase a painter's  reach.   Inside the

paint trailer,  another seaman named Serephine  Rodrigues was

responsible for distributing  tools and mixing paint  for use

in maintenance tasks.  Costa  asked Rodrigues to mix him some

epoxy paint; Rodrigues refused, citing his instructions  that

he was only to issue oil-based paints.  A quarrel ensued, and

Rodrigues  eventually acceded  to Costa's  demands  and began

mixing the epoxy paint.  

     While  Rodrigues was at  work, Costa continued  to argue

with him.   At some  point, Rodrigues  became frustrated  and

told Costa to "leave  me alone" and "get  back in the  boat."

Rodrigues also threw a light rag, which hit Costa in the head

                             -2-                                         -2-

and slipped  off.  Costa  swung the manhelper back  with both

hands and then forward in Rodrigues's direction.   

     Prior to this moment, Ford had approached the trailer to

return some  tools.  While  inside the trailer, he  heard the

altercation escalate and  "knew something was going  to pop."

Ford  emerged  from the  trailer  just  as  Costa  swung  the

manhelper at Rodrigues.  The manhelper struck Ford in the hip

and then  glanced off Rodrigues's hand, which had been raised

to ward off  the blow.   Ford has been seriously  disabled by

the resulting injury.

     Ford sued the Steamship Authority in the district court,

alleging  negligence under  the Jones Act,  46 U.S.C.    688,

unseaworthiness, and an entitlement  to maintenance and  cure

under general  maritime law.1   On October  28, 1996,  a jury

awarded  Ford  $740,000 for  negligence  and unseaworthiness,

prejudgment interest at  a rate of 6%  (totaling $57,172.60),

and  $23,000 for  maintenance and  cure.  The  district court

entered judgment on the  verdict on November 26,  and amended

                                                    

     1Both parties  assume that  the latter  two claims  fall
under the admiralty  jurisdiction of the federal  courts.  It
is not entirely clear that  they satisfy the "location  test"
of admiralty jurisdiction, namely, that the  injury "occurred
on  navigable water  or .  . .  injury  suffered on  land was
caused by a  vessel on navigable water."   Jerome B. Grubart,                                                                         
Inc. v.  Great Lakes  Dredge &amp;  Dock Co.,  513 U.S.  527, 534                                                    
(1995).   But  Ford's  claim  under the  Jones  Act  provides
federal  question jurisdiction under 28 U.S.C.   1331, so the
other claims  fall within  the court's pendent  jurisdiction.
See  Romero v. International Terminal Operating Co., 358 U.S.                                                               
354, 380-81 (1959).

                             -3-                                         -3-

the  judgment on May  1, 1997, after  the Steamship Authority

pointed out a mathematical error.  

     The  Steamship  Authority  now  appeals  the verdict  of

unseaworthiness  and  negligence.    At  oral  argument,  the

Steamship Authority correctly  conceded that the  verdict may

be reversed only if the  jury could not reasonably have found

for Ford  on either theory.  Because we find that the verdict

of unseaworthiness  is supported  by the  record,  we do  not

address the issue of Jones Act negligence, which involves the

separate question  whether  the Steamship  Authority  was  on

notice of Costa's proclivity for violence.

     It is common ground that a vessel owner may be found  in

breach  of the  warranty of  seaworthiness if  one seaman  is

assaulted by another.   Boudoin v. Lykes Bros.  S.S. Co., 348                                                                    

U.S. 336, 338-39  (1955).  The  decisive question is  whether

the  assaulting  seaman   was  "equal   in  disposition   and

seamanship  to the ordinary men in  the calling."  Id. at 338                                                                  

(quoting Keen v. Overseas  Tankship Corp., 194 F.2d  515, 518                                                     

(2d Cir. 1952)).  Our limited  task on appeal is to determine

whether Ford  presented enough  evidence so  that a  rational

jury could conclude that Costa was worse in disposition  than

the ordinary seaman.

     No  one factor is  conclusive in determining  whether an

assailant's disposition is  substandard.  We have held that a

plaintiff may carry  his burden of proof in  two ways: either

                             -4-                                         -4-

by  showing  that  the particular  assault  on  the plaintiff

involved a dangerous  weapon, or by adducing  evidence of the

assailant's "quarrelsome  nature"  in general.   Connolly  v.                                                                     

Farrell Lines, Inc., 268 F.2d 653, 656 (1st Cir. 1959).  Ford                               

presented evidence of both.  There is little doubt that Costa

hit Ford with a dangerous weapon, namely, a thick wooden pole

five or six feet long and tipped with metal.  The  jury heard

testimony stating  that Costa was specifically  attempting to

hit Rodrigues,  that he  swung with both  hands, and  did not

check his swing.  Rodrigues  also testified that his head was

at the same height as the point  where Ford's hip was struck.

We do  not think the  jury would be irrational  in concluding

that  this was  a  particularly  violent  act  that  revealed

Costa's  disposition  to  be  unequal  to  that  of  ordinary

sailors.

     The jury  also heard  evidence of  Costa's penchant  for

violence on other occasions.   Other seamen testified to  two

physical fights that Costa  had instigated.  Costa  also once

stated that  he would  kill another  crewmember, although  no

violence  ensued.    A Steamship  Authority  captain  who had

worked with  Costa testified that Costa had  a reputation for

belligerence.     The  Steamship  Authority   countered  this

evidence at  trial and  still disputes it,  but the  jury was

entitled  to accept  the version  of the  facts  favorable to

Ford.

                             -5-                                         -5-

     Ford argues  that the appropriate comparison  of Costa's

disposition  is not with ordinary sailors generally, but with

ordinary  sailors employed by  the Steamship  Authority, whom

Ford says are a  pacific and docile group.   Because it would

not affect the outcome, we leave resolution of this issue for

another  day.    Ford also  cross-appeals  on  two procedural

issues  regarding,  respectively, the  Steamship  Authority's

failure to renew  its motion for judgment as a  matter of law

and untimely  filing of its notice of  appeal.  Both are moot

in light of our ruling on the merits.

     Affirmed.                         

                             -6-                                         -6-
