Petition of Moore-McCormack Lines, Inc.

• Decision Date: 14 March 1960
• Citation: 184 F. Supp. 585
• Parties: Petition of MOORE-McCORMACK LINES, INC., as owner of THE Steamship MORMACKITE, for exoneration from or limitation of liability. Claims by and on behalf of: Harold H. Richardson, Edward T. Wall, Marvin Knieger, Richard B. Braithwaite, Lawrence Berk, Carmen Cadiz, Remy Rosario, Pedro De Jesus, Tadeo Del Valle, Shed Sullivan, Charles Henry, Miguel A. Hernandez, Charles Lee Williams.
• Court: U.S. District Court — Southern District of New York

184 F. Supp. 585

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

Claims by and on behalf of: Harold H. Richardson, Edward T. Wall, Marvin Knieger, Richard B. Braithwaite, Lawrence Berk, Carmen Cadiz, Remy Rosario, Pedro De Jesus, Tadeo Del Valle, Shed Sullivan, Charles Henry, Miguel A. Hernandez, Charles Lee Williams.

United States District Court S. D. New York.

March 14, 1960.

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Burlingham, Hupper & Kennedy, New York City, for petitioner. Eugene Underwood, John J. Crowley, James W. Lynch, William M. Kimball, New York City, of counsel.

Bigham, Englar, Jones & Houston, New York City, for Richardson and Wall claimants. John J. Martin, John L. Quinlan, New York City, of counsel.

William Kapelman, New York City, for Knieger claimant.

Lee Pressman, New York City, for Berk claimants. Standard, Weisberg, Harolds & Malament, Louis Harolds, New York City, of counsel.

Shafter & Shafter, New York City, for Braithwaite claimants. Alfred M. Shafter, Jack Steinman, New York City, of counsel.

Joseph Friedberg, New York City, for Cadiz claimants. Bernard Rolnick, Robert H. Kilroe, New York City, of counsel.

Bernard Rolnick, Robert H. Kilroe, New York City, for claimants Rosario, De Jesus, Del Valle, Sullivan, Henry, Hernandez and Williams.

McGOHEY, District Judge.

Thirteen claims filed in this proceeding are here considered. They seek damages for death and personal injuries for which the petitioner has been held liable without limitation.¹ They were tried together pursuant to stipulation. Six are by representatives of deceased crew members. Seven are by survivors.² The Court's findings and conclusions appear in the following opinion. Matters common to all will be considered before taking up the individual claims.

Neither of the vessel's two lifeboats was lowered before she sank at 9:45 A.M. on October 7, 1954.³ The men entered the water about 9:30 A.M. Its temperature was about 65°. Each man was wearing a life jacket over his work clothes.

The waves were then about 10 to 12 feet high and continued so until sunset at 5:30 P.M. Thereafter they gradually became lower. They were only about 4 to 5 feet high on Friday and also on Saturday morning when the survivors were picked up.

The men quickly swam away from the vessel. After she sank, dunnage, hatch boards, doors and other pieces of wood were washed up. The men got hold of these and either lay or hung on to them to keep afloat. At first they were in one large group. Later they broke up into smaller groups and several men went off by themselves. No distress call had been sent by the vessel's radio.⁴ Accordingly ships which the men saw passing at a distance on Thursday afternoon and night and again on Friday were not looking for them.⁵ And although they called out, their voices did not carry to the ships.

There was at least one shark, and probably more, in the general area where the men were on Thursday and Friday. It is conceded that one man "bled to death in eight or nine minutes" after he was attacked by a shark on Thursday evening.⁶ It was light enough for this attack to be observed by at least two of the survivors, Davis and Rosario. I find it occurred at about 7 P.M. A second man, unidentified, was bitten by a shark about 9 A.M. on Friday. This attack was seen by Rosario. Toothmarks 9 inches in diameter were found on chief officer Richardson's body which was recovered. The medical examiner at Norfolk, Va. "presumed," quite reasonably it would seem in the circumstances, that these were made by a shark. I find they were.

All of the survivors were weak and weather-worn when they were taken from the water at various times on the morning of October 9. They had been without food or drink for from 46 to 50 hours; their eyes and throats were irritated by the salt water; the rubbing of their life jackets and of the boards they hung onto caused multiple abrasions of their chests, arms and legs; until rescued they all feared for their lives. It is a reasonable assumption that, up until he died, each deceased suffered similarly. I find he did. I find further that $300 is fair compensation for each hour of conscious pain and suffering endured by each man while in the water.

Findings as to what additional awards should be made to any survivor for alleged permanent injuries resulting from the sinking will be deferred until their individual claims are considered.

The logs of the rescue vessels recorded the various times when each survivor was picked up. Accordingly there is no dispute as to the number of hours each of them actually was in the water. There is, however, no evidence as to how long each deceased actually remained alive. No witness saw any of them die. And, although the time when each was last seen alive is known with reasonable certainty, that obviously cannot be taken as the time of his death; for it would be absurd to find that a man was dead at a time when the uncontradicted evidence shows he was in fact alive. Then, too, while it is possible that of those last seen alive at about the same time, some died sooner than others, the evidence furnishes no basis whatever for distinction. In such circumstances one is forced to estimate the time of death. Mine is that each deceased died one hour after he was last seen alive, and I find accordingly.

Richardson Claim

Harold R. Richardson was the chief officer of the vessel. He left the vessel without physical injury. His body, still clad as when he entered the water, was recovered some time on October 9 and brought to Norfolk, Virginia, The following day the medical examiner there certified the cause of death as "accidental drowning due to submersion due to vessel sinking at sea"; and the time of death as "approximately 10 A.M. on the 7th."

He left surviving two infant daughters and their mother, Jean O. Richardson, his widow and executrix, who makes this claim on behalf of herself and their two children.

The examiner was not called as a witness and the evidence before me furnishes no support whatever for his finding as to the time of death. Several survivors swore without contradiction that they saw Richardson alive after sunset which occurred about 5:30 P.M., and one, Rosario the bo'sun, added that he and Richardson were together throughout the night of the 7th and until about 9 A.M. on the 8th. That was twenty-three and one-half hours after the sinking. In pre-trial testimony Rosario had said they had been together about "16 or 17 hours," which would have been about 2 or 3 A.M. on the 8th. He was closely questioned about this variance and said he could not remember giving the earlier testimony. However, it seems to me probable that his trial testimony is more accurate. It is conceded that sunrise on the 8th did not occur until 6 A.M. This was twenty hours after the sinking. Rosario testified that on that morning Richardson and he, accompanied by a seaman he could not identify, left a group they were in and started what proved to be a futile attempt to swim to a distant vessel. While Rosario did not fix the time when this occurred, it is unlikely that such an attempt would have been made in darkness when their chances of being observed would have been very slight.⁷ Rosario insisted there was a very bright sun when they abandoned their attempt and Richardson left him and swam back to the group, which Rosario saw him reach. It is, of course, impossible to be sure that Rosario's recollection of the time of these events was better at the trial than when he gave his deposition. However, he impressed me as trying to be fair and truthful in his trial testimony as to the time of these events and it accords with the probabilities. Moreover this did not materially advance his own interests and he certainly was not shown to have any motive to fabricate in favor of Richardson's family. His trial testimony as to the time he last saw Richardson alive is accepted. Accordingly the medical examiner's finding as to the time of death is rejected. Richardson was last seen alive by Rosario at 9 A.M. on the 8th. I find he died at 10 A.M. on October 8th; twenty-four and one-half hours after he entered the water.

It was stipulated that the medical examiner, if called, would testify in accordance with a letter he sent to Mrs. Richardson on December 27, 1954, which was received in evidence. In it he said his examination of Richardson's body disclosed "a ring of toothmarks on the right thigh and buttock 9 inches in diameter, but they only penetrated the skin. No skin, or muscle, was missing, and I presume this was done by a shark through the clothing. It is impossible for me to say if this was done before or after his death." If Richardson had been attacked during the twenty-three and one-half hours he was with Rosario, it is altogether unlikely the latter would have failed to relate this either in his pre-trial or trial testimony. He did neither; and this can hardly be attributed to inadvertence or forgetfulness. He related two instances of attacks on other men. I find that Richardson was not attacked before 9 A.M. on the 8th. The question remains whether he was attacked between then and 10 A.M. when he died. If he had been attacked while alive, it is certainly reasonable to suppose he would have made some struggle with a resulting tearing of his flesh. But the flesh was not torn. Accordingly I find that the attack occurred after his death and that death resulted from drowning.

Richardson's widow, whose testimony on this point was unchallenged, said he was a devoted husband and father. Other unchallenged evidence supports her. He acquired his own house in 1951 and thereafter improved it. He maintained a car for his family. He regularly brought them gifts from the foreign countries he visited on his voyages. While at home between voyages and during his annual vacations he spent most of his time with...