Elma Smith, Individually and as Administratrix of the Estate of George E. Smith, Deceased v. American Mail Line, Ltd., a Corporation

On the S.S. American Mail, a freighter carrying twelve passengers with a crew of forty-four, in mid-ocean, a steward was found dead one morning. He had been brutally murdered while apparently listening, through earphones, to his tape recorder. Cause of death was a blow from a fire axe which almost decapitated him. No criminal charges ever were filed. No arrest ever was made. This action for wrongful death was brought by the steward’s widow. The question presented is whether the presence of this killer aboard ship served to render the ship unseaworthy.

The district court held for the ship owner. It found that the attacker had a vicious and savage character such as could render the ship unseaworthy had he been a member of the crew. Boudoin v. Lykes Bros. Steamship Co., Inc., 348 U.S. 336 , 75 S.Ct. 382 , 99 L.Ed. 354 (1955). It also found, however, that the identity of the murderer had not been proved, and this finding, on the record, cannot be held to be clearly erroneous. We hold that failure to establish that the attack was by a crew member, rather than by a passenger, precludes recovery on the ground of unseaworthiness.

In Boudoin, supra, at 340 , 75 S.Ct. at 385 ,…