(dissenting).
In view of both the fact and the form of remand before, the opinion herewith cannot he considered at all unreasonable, or indeed unexpected. For like reasons I have no ground (save error) for changing my views previously expressed, 2 Cir., 169 F.2d 90, 93, 94, in the light of the added formal and conclusory findings below that “Svedman was entitled to regard” Kable’s conduct as a threat of further bodily harm, etc. Nor has time convinced me of error in my conception of the law, particularly as it has been quoted approvingly in high judicial quarters. Dillon’s Case, 324 Mass. 102, 85 N.E.2d 69, 72, and see also 2 Nacca L.J. 37, 144, 149, 250. The question still remains whether a seaman who, it is true, has engaged in a drunken brawl with another seaman has put himself so far beyond the pale that he is fair game for the other’s revengeful assault “about an hour or so” later. Remember that on Svedman’s own testimony he had gone back to his room — three rooms removed from Kable’s — and remained there for an hour or so when ho heard Kable calling for his gun, that Kable made these calls two or three times over an interval of five minutes, and that only thereafter did Svedman go after Kable. Remember, too, that, as I view it, this is not a question of recompense for the injuries — though the finding now entered that Svedman was aiming “to produce quiet on board” (sic!) does raise a dilemma as to a more general liability which libelant has been quick to exploit; it is a question of bare maintenance and cure for an injured seaman. The result of this case is to endorse, for shipowners, the attitude of the captain here when sent for, “To hell with them. It is their fight.”1
Had this all happened when the ship was at sea, would the same barring of all help because of misconduct obtain? Or should the injured seaman be set adrift, as proper punishment?
In justice to the respondent, it should be said that it does not appear to have taken literally the position which the law as now declared would have allowed it to take. Indeed it asserts vigorously that it did in fact provide all tbe maintenance and cure which could possibly be required of it. That, however, would present an issue of fact to be decided by the district court.