
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE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 &  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 &  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-
