finding negligence where an inadequately manned vessel was lost at sea
How later courts described this case
- finding negligence where an inadequately manned vessel was lost at sea
- captain not precluded from recovering from shipowner for inadequate crew, even where captain had hired crew
- “[O]nly an owner or charterer of a vessel may petition to limit liability arising from its loss.”
Written by the judges who cited it.
The opinion
HAMLEY, Circuit Judge
(dissenting in part).
If appellants are liable to Woolen and Cone it is on the ground of negligence or unseaworthiness. They owed Woolen the duty not to employ him as a crewman because of his inexperience. They breached that duty by reason of Cone’s act in employing Woolen, and Martin-son’s failure to discover and cancel Cone’s act. The vessel was not seaworthy because of Woolen’s incompetence. Hence, both on the grounds of negligence and unseaworthiness appellants are liable to Woolen.
In my view, however, the situation is entirely different as to Cone. I do not believe appellants owed the experienced Cone any duty of discovering and canceling his own act of negligence in employing Woolen. If this is true, then liability as to Cone cannot be predicated on negligence, because the sole negligence as to Cone would be his own. It would then also follow that appellants are not *653 chargeable to Cone on the ground of unseaworthiness, for as to him the unseaworthiness was brought about solely by Cone’s negligence.
In Boudoin v. Lykes Bros. S. S. Co., 1955, 348 U.S. 336 , 75 S.Ct. 382, 384 , 99 L.Ed. 354 , a seaman was permitted to recover on the theory of unseaworthiness when he was assaulted and injured by a fellow seaman who was found to be “a person of dangerous propensities and proclivities.” But if the seaman whose propensities and proclivities rendered the ship unseaworthy was himself injured in the brawl, I do not think he could have recovered. As noted in the Boudoin case, liability by reason of unseaworthiness is based upon a breach of a warranty of seaworthiness. I would hold that the warranty does not extend to one who by reason of his own sole willful or negligent conduct produced the condition relied upon as establishing unseaworthiness.