Everett Guy Kirsch v. United States

Defendant was the owner and operator of the SS Occidental Victory. Plaintiff Kirsch was a crewman on the vessel. In 1968 plaintiff was injured on board when he was struck by one Hutchison, a Third Assistant Engineer. This suit for damages was then instituted. The District Court found for plaintiff on the theory that Hutchison’s presence on the ship rendered it unseaworthy. This appeal followed.

Having reviewed the evidence, we conclude that it does not support the finding of unseaworthiness. We reverse.

The general warranty of seaworthiness is that the vessel is “reasonably fit.” The Silvia, 171 U.S. 462, 464 , 19 S.Ct. 7 , 43 L.Ed. 241 (1898). As applied to a seaman’s temperament and ability, the warranty “is ‘that he is equal in disposition and seamanship to the ordinary men in the calling.’ ” Stechcon v. United States, 439 F.2d 792, 793 (9th Cir. 1971), citing Keen v. Overseas Tankship Corp., 194 F.2d 515, 518 (2d Cir.), cert, denied, 343 U.S. 966 , 72 S.Ct. 1061 , 96 L.Ed. 1363 (1952). The questions are whether the behavior was “within the usual and customary standards of the calling,” or whether it was “a case of a seaman with a wicked disposition, a propensity to evil…