Moore-McCormack Lines v. McMahon

• Decision Date: 29 June 1956
• Docket Number: No. 316,Docket 23960.,316
• Citation: 235 F.2d 142
• Parties: MOORE-McCORMACK LINES, Inc., Cross-Libellant-Appellant, v. Claire S. McMAHON, executrix under the will of Patrick McMahon, Respondent-Appellee. MOORE-McCORMACK LINES, Inc., Cross-Libellant-Appellant, v. Luisa Virginia WALL, administratrix of the estate of Edward T. Wall, Respondent-Appellee. MOORE-McCORMACK LINES, Inc., Cross-Libellant-Appellant, v. Jean O. RICHARDSON, executrix under the will of Harold R. Richardson, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

235 F.2d 142 (1956)

MOORE-McCORMACK LINES, Inc., Cross-Libellant-Appellant, v. Claire S. McMAHON, executrix under the will of Patrick McMahon, Respondent-Appellee.

MOORE-McCORMACK LINES, Inc., Cross-Libellant-Appellant, v. Luisa Virginia WALL, administratrix of the estate of Edward T. Wall, Respondent-Appellee.

MOORE-McCORMACK LINES, Inc., Cross-Libellant-Appellant, v. Jean O. RICHARDSON, executrix under the will of Harold R. Richardson, Respondent-Appellee.

No. 316, Docket 23960.

United States Court of Appeals Second Circuit.

Argued May 10, 1956.

Decided June 29, 1956.

Eugene Underwood, New York City (Burlingham, Hupper & Kennedy and Robert B. Pohl, New York City, on the brief), for cross-libellant-appellant.

Edwin M. Bourke, New York City (Paul C. Matthews, New York City, on the brief), for respondent-appellee McMahon.

William F. Andersen, New York City (Bigham, Englar, Jones & Houston, New York City, on the brief), for respondents-appellees Wall and Richardson.

Before CLARK, Chief Judge, and FRANK and HINCKS, Circuit Judges.

CLARK, Chief Judge.

Libellant's vessel the Mormackite, bound from Vitoria, Brazil, to Baltimore, Maryland, sank at sea on October 7, 1954, with a loss of 37 of her 48-man crew. To meet claims of survivors and next of kin of decedents, libellant filed its petition below for exoneration from or limitation of liability; and in this proceeding numerous claims were filed, including those by the personal representatives of the estates of the vessel's master, Patrick McMahon, its chief officer, Harold R. Richardson, and its chief engineer, Edward T. Wall, all of whom were lost. Libellant, acting on the basis of testimony from the survivors that the loss of the ship was due to the negligence of these officers, filed a cross-libel against the representative of each estate, asserting a claim for indemnity for amounts it might be forced to pay. All three representatives excepted to the cross-libels on the grounds that libellant's claims abated with the officers' deaths and that no cross-libels can be filed to claims in the limitation proceeding. Acting on the second or procedural ground only, Judge Clancy sustained the exceptions; and this appeal from the resulting decrees followed.

We think the court was in error in its view of admiralty procedure. While the admiralty rules do not specifically regulate the practice as to cross-libels, Admiralty Rule 50, 28 U.S.C., providing for security for costs for a cross-libel "filed upon any counterclaim arising out of the same contract or cause of action for which the original libel was filed," has been taken as authorizing such libels arising out of the same contract or cause of action as that sued upon. The required or suggested condition is clearly fulfilled here. In fact all the various claims to be considered arise out of the one accident and loss as a single cause; and the testimony must be either identical or greatly overlapping, so much so that economy of trial litigation suggests the desirability of one trial only. And we think our previous holdings, In re United States Steel Products Co., 2 Cir., 24 F.2d 657, 659, and The Steel Inventor, 2 Cir., 43 F.2d 958, 961, certiorari denied Bell v. United States Steel Products Co., 283 U.S. 819, 51 S.Ct. 344, 75 L.Ed. 1435, are direct authority for this course. The court below distinguished the cross-libels there against cargo claims in limitation of liability proceedings as being against the res, while the present claims were said to arise out of the relationship of the parties. But we see no basis in reason or the authorities for such a distinction; and none was drawn in the recent persuasive decision of Judge Dobie for his court in British Transport Commission v. United States, 4 Cir., 230 F.2d 139, 143-145, upholding cross-claims in limitation proceedings. Judge Clancy said that we "know of no authority that permits such an alleged cross-libel." As stated, we think there is authority; but in any event, approach to modern admiralty as to modern civil procedure should be to permit convenient practice where we know of no authority that forbids.

Appellees urge that the decision should be affirmed because in no event may there be a recovery on the cross-libels. But we do not think this can be said with assurance at this time, and it is appropriate that the cases be remanded for proper responsive pleading and full trial of such issues as may be raised in due course. With respect to appellees' first point that these are claims in tort which in admiralty do not survive the respondents' death, it should be noted that even as to torts there may be a question as to whether the more modern principle of survivability will not come to be recognized, notwithstanding, and perhaps as indicated in, Nordquist v. United States Trust Co. of New York, 2 Cir., 188 F.2d 776, 777. See also Sperbeck v. A. L. Burbank & Co., 2 Cir., 190 F.2d 449; Just v. Chambers, 312 U.S. 383, 387, note 4, 61 S.Ct. 687, 85 L.Ed. 903. But more important for the immediate purpose is appellant's contention that its claim is by way of indemnity and hence contractual, so that it would clearly survive under settled authority. Sperbeck v. A. L. Burbank & Co., supra, 2 Cir., 190 F.2d 449, and cases cited. While the contention is vigorously contested by the appellees, it is at least plausible, and appellant should have the opportunity to develop it.

The other contention made is that each claim is on behalf of the estate's representative acting for named dependents (under both the Jones Act, 46 U.S.C. § 688, incorporating 45 U.S. C. § 51, and the Wrongful Death on the High Seas Act, 46 U.S.C. § 761), while the cross-libel is against the representative generally. The matter, too, is illustrated by the reference sometimes made to the representative in her first capacity as a form of statutory "trustee," as in Stark v. Chicago, North Shore & Milwaukee Ry. Co., 7 Cir., 203 F.2d 786, 788. But such descriptive phrases do not change the statutory requirement that suit must be by the "personal representative" of the decedent; see statutes cited supra. Hence by specific requirement of law the claim on behalf of the dependents must be made by the same person against whom claims owed by the estate will be asserted. Of course it is obvious as well as unimportant here that the representative may owe differing obligations, as one to a named class of dependents and another to all claimants, including creditors and legatees. For there is no requirement in modern procedure that claims be mutually offsetting, cf. F.R.C. P., rule 13(c), 28 U.S.C., and discussion in Clark on Code Pleading 650-652 (2d Ed. 1947); and the mere fact that the widow here as fiduciary may have different responsibilities does not prevent the convenient single trial of these claims. Note the free filing of counterclaims by or for personal representatives authorized by N. Y. Civil Practice Act, §§ 268, 269, and see Clark on Code Pleading 672, notes 142-144 (2d Ed. 1947). Thus there may be scope for the operation of the doctrine of res judicata¹ and for contemporaneous judgments in favor of the representative on behalf of herself as widow and against her as representative of the estate generally, though of course we do not and should not try to forecast the results at this time. The issue here presented is of practical importance, since the appellees appear to be not subject to personal service in the district.

Reversed and remanded.

FRANK, Circuit Judge (dissenting).

I agree with my colleagues' interpretation of Admiralty Rule 50 and with their expressed attitude towards the survival of the alleged claims by appellant against the estates of the three deceased ship's officers. However, I do not agree with the last paragraph of my colleagues' opinion. The difference between their view and mine is important: If my colleagues are correct — i. e., if those estates are already represented by appellees in the limitation proceedings — then Admiralty Rule 50 applies, and appellant can prosecute its claims against those estates in that proceeding without service of process on appellees (except service on their lawyers). If, however, my colleagues are wrong, then appellant cannot prosecute those claims in that proceeding except by treating the cross-libels as impleading petitions under Admiralty Rule 56 — which requires that appellees be "duly served" by service of process on them.¹ My reasons for thinking my colleagues in error are as follows:

Each cross-libel seeks affirmative relief, against the estate of a particular designated deceased ship's officer, for the loss of appellant's vessel (alleged to have had a value of $1,000,000) and for the amount of all awards against appellant (alleged to be potentially about $11,000,000). My colleagues in concluding that the cross-libels (thus seeking recovery in that large amount, far in excess of the claims filed respectively by the appellees) properly bring into the limitation proceedings the "estates" of the respective deceased officers, rest their decision on their key statement that "the claim on behalf of the dependents" must be made by the same person against whom "claims owed by the estate" will be asserted.

This key statement thus treats a claim on behalf of the dependents as if substantially related to a claim on behalf of the "estate." This I think erroneous. The "dependents" and the "estate" have no relation. No one of the appellees could — or did — file in the limitation proceeding a claim on behalf of the "estate" of the particular deceased officer.

No one of those "estates" ever had any claim against appellant. Each of the filed claims was explicitly asserted under the Jones Act — 46 U.S.C.A. § 688 — or the Death on the High Seas Act — 46 U.S.C.A. § 761 et seq. In suing under either of these federal statutes, none of these appellees represents the "estate" of a decedent: Under the Jones Act (through incorporation by a reference of...