Moore-McCormack Lines, Inc. v. Armco Steel Corp., 69

• Decision Date: 30 November 1959
• Docket Number: No. 69,Docket 25329.,69
• Citation: 272 F.2d 873
• Parties: MOORE-McCORMACK LINES, INC., Petitioner-Appellant, v. ARMCO STEEL CORPORATION, Wessel, Duval & Co., Inc., et al., Claimants-Appellees. MOORE-McCORMACK LINES, INC., Cross-Libellant-Appellant, v. Luisa V. WALL, as administratrix of the goods, etc., of Edward T. Wall, deceased, Respondent-Appellee. MOORE-McCORMACK LINES, INC., Cross-Libellant-Appellant, v. Jean O. RICHARDSON, as executrix under the last will and testament of Harold R. Richardson, deceased, Respondent-Appellee. Petition of MOORE-McCORMACK LINES, INC., as owner of THE Steamship MORMACKITE, for exoneration from or limitation of liability.
• Court: U.S. Court of Appeals — Second Circuit

272 F.2d 873 (1959)

MOORE-McCORMACK LINES, INC., Petitioner-Appellant, v. ARMCO STEEL CORPORATION, Wessel, Duval & Co., Inc., et al., Claimants-Appellees.

MOORE-McCORMACK LINES, INC., Cross-Libellant-Appellant, v. Luisa V. WALL, as administratrix of the goods, etc., of Edward T. Wall, deceased, Respondent-Appellee.

MOORE-McCORMACK LINES, INC., Cross-Libellant-Appellant, v. Jean O. RICHARDSON, as executrix under the last will and testament of Harold R. Richardson, deceased, Respondent-Appellee.

Petition of MOORE-McCORMACK LINES, INC., as owner of THE Steamship MORMACKITE, for exoneration from or limitation of liability.

No. 69, Docket 25329.

United States Court of Appeals Second Circuit.

Argued October 16, 1959.

Decided November 30, 1959.

Rehearing Denied December 31, 1959.

Eugene Underwood, New York City, for appellant.

Burlingham, Hupper & Kennedy, New York City, for petitioner-cross-libellantappellant Moore-McCormack Lines, Inc., Hervey C. Allen, Robert A. Feltner, Richard C. Hatch, New York City, of counsel.

Henry N. Longley, New York City, for appellees.

Bigham, Englar, Jones & Houston, Bernard Rolnick, Joseph Friedberg, Cooper, Ostrin & De Varco, William L. Standard, Shafter & Shafter, New York City, for claimants, John J. Martin, Robert H. Kilroe, Herbert J. De Varco, Louis R. Harolds, Jack Steinman, New York City, of counsel.

Before CLARK and HAND, Circuit Judges and SMITH, District Judge.

HAND, Circuit Judge.

The Moore-McCormack Lines, Inc., the owner of the steamer, "Mormackite," appeals from a judgment of the District Court denying its petition for exoneration from, or limitation of, liability for the loss of life and cargo when its vessel, the "Mormackite," sank off Cape Hatteras on the morning of October 7, 1954 with the loss of her cargo of iron ore and a parcel of cocoa beans, together with that of 37 of the ship's company, including her master, chief mate and chief engineer. The survivors, 11 members of the crew, the personal representatives of the estates of those lost, and the owners of the cargo filed claims against Moore-McCormack Lines, Inc., and that company filed cross-libels against the master, chief mate and chief engineer of the ship for negligent navigation. After a long trial Judge McGohey granted judgment against the owner without limitation in favor of the survivors, the personal representatives of those lost, and the cargo claimants, and dismissed the cross-libels. The issues in the case are whether the stowage of the "Mormackite" was seaworthy, whether her navigation preceding the loss was proper, and whether, if the stowage was unseaworthy, the owner may limit its liability for either the cargo or loss of life under § 183(a) of Title 46 U.S.C.

The findings are that the ship had been laden at Vitoria, Brazil, which port she left on September 25th, and "proceeded without untoward incident" until on October 7th "shortly after 4 a.m. heavy seas struck the vessel's starboard side, rolling her very hard to port about 20 to 25 degrees. The ore shifted. * * * The vessel took a port list. Her speed was reduced at once," and shortly thereafter the list was so far corrected she had only a little list to port. "Heavier seas were still coming from starboard. Some time after 8:30 there was another very violent roll to port. The ore shifted heavily again. * * * The shifting continued. The vessel took a severe port list. * * * The list increased steadily. Chief Officer Richardson and Chief Engineer Wall were then seen attaching fire hoses to the sounding pipes leading to the starboard deep tanks." "At or after 8:30 the speed had increased"; and at about the time of the violent roll "the speed indicator * * * registered `full speed.'" "However, `the next telegraph order from the bridge' was `full stop; * * * every moment it was changing.'" The master on the bridge was "ordering `right wheel amidships — he was trying to right the ship.'" "At 8:30 the vessel still had a port list which resulted from the first shift of cargo at 4 o'clock. And, despite the fact that she had been on reduced speed since 4 o'clock, she was nevertheless rolling hard. And the seas hitting her starboard were heavier than before. It is obvious that, in order to avoid a further shift of the ore a change of course was necessary. It is clear that this is just what Captain McMahon was trying to do." He may have been "trying to put her about and thus cause some of the ore to shift away from port to starboard." "The cargo pumps were put into operation after the 8:30 list."

Upon these findings McGohey, J., found that the stowage was unseaworthy. It is not clear whether he would have so found, had there been no evidence as to the stowage itself; but upon that highly disputed issue he found that "the ore was stowed as indicated on the stowage plan, Claimant's Exhibit 4: that is, the ore in No. 1 lower hold was piled up through the hatch into No. 1 lower 'tweendeck; in No. 3 and 5 lower 'tweendecks the ore was piled up through the hatches into the upper 'tweendecks." He also found by inference which we accept, that the master knew how the ore was stowed when the ship broke ground. If his conclusions were not "clearly erroneous," it would follow that for the personal injuries and deaths of the ship's company the petitioner was liable without limitation. § 183(e) Title 46 U.S.C.

The seaworthiness of the stowage depended first upon how it was put on board at Vitoria and whether that was in accordance with proper maritime practice. As has already appeared, the finding was that the ore was deposited in piles whose tops extended through the hatches in three instances. The ore had lain in piles ashore, near where the ship lay, from which it was dumped upon a "conveyor belt" which moved perpendicular to the ship's side. This "belt" carried a "chute" which could be manipulated so as to discharge ore at varying angles into any of the hatches. The claimants argue that without hand trimming this necessarily resulted in stowing the ore in conical heaps which were apt to shift as the ship rolled. The ship answered that the chutes could deliver the ore at an angle and fill the hold, or 'tweendeck, so as to reach its sides and bulkheads in heaps not conical and therefore not likely to shift. Furthermore she put in evidence that the practice had been common at Vitoria to stow ore in this way, and that only in one instance had a cargo shifted that had been similarly stowed. Her expert witness, Wilson, testified that this method was safe. Moreover, although four or five of the survivors swore that the ore in the holds had lain in heaps and had extended through the hatches, some of these had stated upon examination by the Coast Guard they had not observed such stowage of the ore.

We do not think that the evidence was such as would permit our disturbing the judge's finding on the facts. That the survivors' testimony was inconsistent was of course to be considered; but it was not conclusive, especially since the judge had seen the witnesses. Again we cannot say that the judge should have accepted the opinions of the ship's experts in preference to that of Manning, the claimants' expert who condemned the stow. The outstanding fact is that in seasonable weather the ore did shift and in the end capsized the ship. As McGohey, J., put it, the "inference is inescapable, I think, that she was unseaworthy as to her stowage." 164 F.Supp. 206. When to this we add the almost inevitable conclusion that when she broke ground her master must have seen the stow, the denial of limitation follows; or at any rate we should not be warranted in holding that the findings were "clearly erroneous."

Other considerations apply to the claims of the cargo. A shipowner may limit his liability for cargo loss under § 183(a) of Title 46 only in case he proves that the loss was "without" his "privity or knowledge." In the case at bar the owner was a corporation, and it must be owned that it is hard to say from the books who are the officers whose "privity or knowledge" will charge the corporation, except that they must apparently be "the managing officers" (Craig v. Continental Insurance Co., 141 U.S. 638, 646, 12 S.Ct. 97, 99, 35 L.Ed. 886), whatever that may mean. In the case at bar it appears to be common ground that only notice to the following four of the corporation's officers would deprive it of its right to limit: Furey, Chief of Operations, Mayo, Marine Superintendent, Barrett, Assistant Marine Superintendent, and O'Brien, Operations Manager. It does not appear that Claimants' Exhibit 4 came to the notice of any of these men before the ship broke ground...