• 4, 5 A claim that a vessel was unseaworthy because one's assailant was not equal in temperament and disposition to the ordinary men in the calling is susceptible to one of two modes of proof: (1) by independent evidence with regard to the assailant's temperament and disposition; or (2) by direct evidence showing a vicious and unprovoked attack. ( Smith v. Lauritzen (3d Cir. 1966), 356 F.2d 171.) This second mode of proof, which was undoubtedly that pursued by Newton at trial, has also been described as proof of "an assault with a dangerous weapon."

The court reasoned, Smith v. Lauritizen, 356 F.2d 171 (3d Cir. 1966); 1B Benedict on Admiralty § 31, at 31-256. 325 F.2d 397 (5th Cir. 1963).

A party is entitled to have its requested instructions given only when there is evidence in the record supporting their submission. Smith v. Lauritzen, 356 F.2d 171 (3d Cir. 1966) (longshoreman's suit); McNello v. Kelly, Inc., 283 F.2d 96 (3d Cir. 1960). Perhaps instructions on superseding cause would be justified where, for example, evidence showed that the stevedore had rejected offers of assistance by the vessel owners, had been alerted to the danger some time in advance, or had expressly assured the owner that in spite of the unchocked condition of the stowage, it had the matter under control and would assume full responsibility for unloading the cargo safely.

Thus, under the circumstances of this case, defendant's acts would not have been innocent even if the facts had been as he allegedly believed them to be, and the district court's refusal to permit the jury to consider a mistake of fact defense was not error. See Keedy, supra at 83. Indeed, we have held that where the record does not support a party's claim of self-defense, the submission of this issue to the jury is cause for reversal. Smith v. Lauritzen, 356 F.2d 171, 176 (3d Cir. 1966). Defendant argues alternatively that even if Section 111 does not require proof of scienter as an essential element of the offense, the Government voluntarily assumed the burden of proving such knowledge by charging in the indictment that defendant knew the identity of the agents at the time he committed the acts in question.

Morran v. Pennsylvania R.R. Co., 321 F.2d 402, 403 (3 Cir. 1963). Smith v. Lauritzer, 356 F.2d 171 (3 Cir. 1966); Eichmann v. Dennis, 347 F.2d 978 (3 Cir. 1965); Moore v. Smith, 343 F.2d 206 (3 Cir. 1965); Morran v. Pennsylvania R.R. Co., 321 F.2d 402 (3 Cir. 1963); O'Neill v. Reading Co., 306 F.2d 204 (3 Cir. 1962). Counsel for appellant, however, failed to seasonably object to the District Judge's charge on contributory negligence. It was not until the oral argument in support of the motion for a new trial that counsel for appellant argued that no proof had been offered by which appellant could be found contributorily negligent.

Under these circumstances it would have been reversible error to submit the question of agency to the jury. Smith v. Lauritzen, 356 F.2d 171, 176 (3d Cir. 1966); see Walker v. United States Gypsum Co., 270 F.2d 857 (4th Cir. 1959), cert. denied, 363 U.S. 805, 80 S.Ct. 1240, 4 L.Ed. 2d 1148 (1960); Bass v. Commercial Credit Corp., 317 F.2d 910 (5th Cir. 1963); Fed.R.Civ.Proc. 56; Major v. McCurdy, 118 F. Supp. 537 (E.D.S.C. 1954) (South Carolina practice). Moreover, since the ruling of the District Court eliminating the independent contractor defense from the case came at the conclusion of all the evidence, after Texaco had had a full opportunity to establish its affirmative defense, a remand for the taking of additional evidence is unnecessary.

The defense applies when the defendant “believes that [s]he or another is in imminent danger of bodily harm,” and that belief is “reasonable.” Garris, 1997 WL 11308, at *2; accordSmith v.Lauritzen, 356 F.2d 171, 176 (3d Cir. 1966) (“[T]he defender is privileged to respond only to a reasonable belief on his part that he is in imminent danger of bodily harm.”).

But defense of others, like self-defense, has both an objective and subjective element. The defendant must “believe[] that [s]he or another is in imminent danger of bodily harm,” and that belief must be “reasonable.” Id.; accord Smith v. Lauritzen, 356 F.2d 171, 176 (3d Cir. 1966) (“[T]he defender is privileged to respond only to a reasonable belief on his part that he is in imminent danger of bodily harm.”). It is likely that the Commissioner's findings in the PFA order establish the objective element-i.e., that someone in Hanoch's position could reasonably fear that Leon was about to harm Goodman.

, at *3 (E.D. Pa. Mar. 11, 1996) (citing Smith v. Lauritzen, 356 F.2d 171 (3d Cir. 1966)).

The remaining cases cited by Brown similarly involve attacks with deadly weapons. See Brown's Opp'n to APL's Mot. at 28 (citing Deakle v. John E. Graham & Sons, 756 F.2d 821 (11th Cir. 1985) (stabbing); Calcagni v. Hudson Waterways Corp., 603 F.2d 1049 (2d Cir. 1979) (wheel wrench); Smith v. Lauritzen, 356 F.2d 171 (3d Cir. 1966) (cargo hooks); Horton v. Moore-McCormack Lines, Inc., 326 F.2d 104 (2d Cir. 1964) (broken glass and bottle); Clevenger v. Star Fish & Oyster Co., 325 F.2d 397 (5th Cir. 1963) (four-foot-long pointed steel ice chisel); Kelcey v. Tankers Co., 217 F.2d 541 (2d Cir. 1954) (previous incidents involving knife and axe)).