Noble v. Moore-McCormack Lines, 50-55

• Decision Date: 09 March 1951
• Docket Number: 50-28,No. 50-55,50-15,50-9,50-16.,50-55
• Citation: 96 F. Supp. 369
• Parties: NOBLE v. MOORE-McCORMACK LINES, Inc. SCHLUTER v. MOORE-McCORMACK LINES, Inc. DECKER et al. v. MOORE-McCORMACK LINES, Inc. GORTON PEW FISHERIES COMPANY, LIMITED v. MOORE-McCORMACK LINES, Inc. THE CORINTHIAN.
• Court: U.S. District Court — District of Massachusetts

96 F. Supp. 369

NOBLE v. MOORE-McCORMACK LINES, Inc.

SCHLUTER v. MOORE-McCORMACK LINES, Inc.

DECKER et al. v. MOORE-McCORMACK LINES, Inc.

GORTON PEW FISHERIES COMPANY, LIMITED v. MOORE-McCORMACK LINES, Inc.

THE CORINTHIAN.

Nos. 50-55, 50-28, 50-9, 50-15, 50-16.

United States District Court D. Massachusetts.

March 9, 1951.

Frederick W. Ryan, Lynn, Mass., for plaintiff Noble.

Harry Kisloff, Boston, Mass., for plaintiff Schluter.

John O. Parker and Ely, Bartlett, Thompson & Brown, all of Boston, Mass., for plaintiffs Decker et al.

Arthur J. Santry, Putnam, Bell, Dutch & Santry, Sumner H. Babcock, Joseph P. Rooney, and Paul V. Power, all of Boston, Mass., for plaintiff Gordon Pew Fisheries Co., Ltd.

Thomas H. Walsh, Boston, Mass., for Moore-McCormack Lines, Inc.

SWEENEY, Chief Judge.

All of the above actions, which grew out of a collision between the fishing vessel Corinthian and the S. S. Mormacfir, were consolidated for trial. The first three listed above are suits to recover under the Death on the High Seas statute, 46 U.S. C.A. § 761 et seq., and all of them also contain a second count for conscious suffering. To these second counts the respondent has filed exceptions. In the other two actions, the libellant seeks exoneration from or limitation of liability on its own behalf, and seeks recovery against the respondent for the loss of the fishing vessel Corinthian. In accordance with admiralty practice and confirming the stipulation made at the pretrials, this case has now been heard solely on the question of liability and will be referred to a commissioner for the assessment of damages.

Findings of Fact

The fishing trawler Corinthian at 6:50 P. M. on the evening of September 19, 1949, was fishing about twelve miles off the coast of Halifax. It was dark and a thick fog had closed down to the water. Visibility was possible for about one hundred yards. Aboard the Corinthian there were eleven fishermen, six of whom were lost a few minutes later when the Corinthian was run down by the Mormacfir. Aboard the Corinthian was a life preserver for each man which had been placed in the bunk which the particular fisherman occupied. In addition, on deck in boxes on the side of the whaleback — which is on the bow — there were four additional life preservers. On deck also there were two ring buoys and the captain's life preserver in the pilot house. The Corinthian was about 112 feet in length and made of wood, and the Mormacfir was a steel vessel about 430 feet in length. The Corinthian had just completed a set and was hauling in her nets with her motors idling. The knockout whistle had sounded at 6:35, which was the signal to resume work hauling in the fish. The last man to come out of the forecastle heard a whistle from the Mormacfir and reported it to the captain. The captain had also heard it. The evidence does not disclose whether or not the other men heard it. The Corinthian had been blowing two blasts at intervals of a minute or two. She had not been sounding a whistle and a bell as provided in Article 9(i) of the International Rules for Navigation at Sea, 33 U.S.C.A. § 79 (i), and the respondent contends that the failure to blow such a combination fixes liability upon the Corinthian. The Corinthian on the other hand contends that, since she was underway and stopped, hauling in her nets and "having no way upon her", by blowing the two blasts she was correctly following Article 15 (b), 33 U.S.C.A. § 91 (b). If the Corinthian had "way upon her", that is, was dragging her nets, blowing the two whistles would have been a variance from the rules, but since she had no way upon her just prior to the collision, the blowing of the two whistles at that moment was proper. The rules themselves seem to be ambiguous at least to the extent of defining the dividing limits between the situation under article 9 (i) and that under article 15 (b), but I find that the blowing of the two-blast signal, encouraged by a custom so to blow, was at least not such a clear cut violation of the rules that under the doctrine of The Pennsylvania v. Troop, 19 Wall. 125, 86 U.S. 125, 22 L.Ed. 148, would call for proof on the part of the Corinthian that her dubious violation could not and did not cause the collision. After the Corinthian heard the first blasts from the Mormacfir she continued blowing her two blasts until the Mormacfir again repeated the blowing of her whistle, but almost simultaneously with the second blast the Mormacfir emerged through the fog, was sighted, and struck the port quarter of the Corinthian, shearing off her stern and throwing her crew into the water. The Corinthian sank in a minute or two.

When the Mormacfir first heard the whistle of the Corinthian she was making 15 knots per hour through a heavy fog. The officer on the bridge ordered his engines into reverse but was unable to avoid hitting the Corinthian within the short distance which separated them because of the great speed of his vessel. At the moment of impact I find that the Mormacfir was traveling at not less than 6 knots per hour ahead with her engines in reverse. After the Mormacfir came to a stop at some distance beyond the point where the collision occurred, none of the crew members of the Corinthian or the boat itself was in sight. About an hour and five minutes after the collision the Mormacfir launched a motor boat to search for the survivors, and about an hour later the...