Petition of Moore-McCormack Lines, Inc.

• Citation: 164 F. Supp. 198
• Parties: Petition of MOORE-McCORMACK LINES, INC., as owner of THE Steamship MORMACKITE, for exoneration from or limitation of liability. MOORE-McCORMACK LINES, INC., Cross-Libellant, v. Claire S. McMAHON, as executrix under the last will and testament of Patrick McMahon, deceased, Respondent. MOORE-McCORMACK LINES, INC., Cross-Libellant, v. Luisa V. WALL, as administratrix of the goods, etc., of Edward T. Wall, deceased, Respondent. MOORE-McCORMACK LINES, INC., Cross-Libellant, v. Jean O. RICHARDSON, as executrix under the last will and testament of Harold R. Richardson, deceased, Respondent.
• Decision Date: 30 June 1958
• Court: U.S. District Court — Southern District of New York

164 F. Supp. 198

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

MOORE-McCORMACK LINES, INC., Cross-Libellant, v. Claire S. McMAHON, as executrix under the last will and testament of Patrick McMahon, deceased, Respondent.

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

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

United States District Court S. D. New York.

June 30, 1958.

Burlingham, Hupper & Kennedy, New York City, for petitioner and cross-libellant. Eugene Underwood, Robert A. Feltner, Richard C. Hatch, New York City, of counsel.

Bigham, Englar, Jones & Houston, New York City, for claimants Armco Steel Corp., and Wessel, Duval & Co. Henry N. Longley, John J. Martin, New York City, of counsel.

Bernard Rolnick, Robert H. Kilroe, Milton H. Spiero, New York City, for claimants Charles L. Williams, Tadeo Del Valle, Miguel Hernandez, Charles Henry, Shed Sullivan, Jr., Pedro De Jesus, Remy Rosario and Maria De Oliviera Lavor.

William L. Standard, New York City, for claimant Ana Pagan. Herman Rosenfeld, New York City, of counsel.

Lee Pressman, New York City, for claimants Lillie Robinson, Mary G. Banks and Mae Berk. Herman Rosenfeld, New York City, of counsel.

Shafter & Shafter, New York City, for claimants Estelle Waithe and Luz Pena. Alfred M. Shafter, New York City, of counsel.

George Mutterperl, New York City, for claimant Genovena Rodriquez.

Diamond & Elkind, New York City, for claimant Cassie Braithwaite. Alfred M. Shafter, New York City, of counsel.

Cooper, Ostrin & De Varco, New York City, for claimants John A. Davis, Thomas Leamy, Manuel Roman, Helen Clark, Emilia Branca, Fred Tatter and Sarah Jiminez. Herbert J. De Varco, Richard Gyory, New York City, of counsel.

George Engelman, New York City, for claimant Teresa Morin. O. Raymond Basile, New York City, of counsel.

William Kapelman, New York City, for claimant Bernard Knieger.

Joseph Friedberg, Robert Kilroe, New York City, for claimants Milagros R. Acosta, Mercedes Cadiz, Delores Velez, Eulogia Cadiz, Ralph Pagen and Marianna Acosta.

Sol C. Berenholtz, Baltimore, Md., for claimants Sarah L. Frost, Nanine W. Gibbs, Catherine J. Gibbs and Mary Lord. Cooper, Ostrin & De Varco, New York City, of counsel.

Irving G. Gordon, New York City, for claimant Lillian Lewis.

Herbert J. Kaplow, New York City, for claimant Daniel Watts.

Boudin, Cohn & Glickstein, New York City, for claimant Eldredge T. Lemell.

Zock & Petrie, New York City, for claimant National Cinema Service.

Nathan Greenberg, New York City, for claimants Margaret Svendsen and William Grealish. Herbert J. De Varco, New York City, of counsel.

Hill, Betts & Nash, New York City, for claimants Lucy C. Mayes, Caroline Barclay, George Hinton, Josephine Overton and Nathan H. Dickerson.

Paul C. Matthews, New York City, for respondent Claire S. McMahon. Edwin M. Bourke, John J. Robinson, New York City, of counsel.

Trapp & Hohmann, Huntington, N. Y., for respondents Jean O. Richardson and Luisa Virginia Wall, by Bigham, Englar, Jones & Houston, Henry N. Longley, John J. Martin, New York City, of counsel.

McGOHEY, District Judge.

Moore-McCormack Lines, Inc. petitioned for exoneration from or limitation of liability for the sinking and total loss of its vessel S.S. Mormackite and her cargo off Cape Hatteras at about 9:45 in the morning on October 7, 1954. Thirty-seven of her personnel, including all her officers, perished. Eleven survived.

Claims were filed by the cargo owners, the survivors and the personal representatives of the estates of the deceased. The petitioner filed cross-libels asserting counterclaims against the representatives of the estates of the master, the chief officer and the chief engineer.¹ The claims by and against the representative of the master's estate were settled during trial.

The court's findings and conclusions are set forth in the following opinion.

The petition is in all respects denied and the cross-libels against the representatives of the estates of the chief officer and the chief engineer are dismissed.

All claimants are entitled to recover their damages and costs. The question whether interest may or should be awarded on any of the claims is reserved. As to the death claims and those of the survivors, it will be decided when those damages are determined. As to the cargo claimants, it will be decided on the coming in of the Special Commissioner's report or, if the parties stipulate those damages, on the entry of the final decree.

Petitioner is now and was at all relevant times a Delaware corporation having its principal place of business at 5 Broadway, New York, New York.

The S. S. Mormackite was owned by the petitioner when she sank, and her home port was New York, New York.

The vessel departed Vitoria, Brazil, September 25, 1954, bound for Baltimore with a cargo of 9,003 tons of iron ore and 30 tons of bagged cocoa beans.

She sank off Cape Hatteras at about 9:45 in the morning of October 7, 1954.

She was equipped with adequate lifeboats and was seaworthy as to hull, gear and safety equipment when she sailed from Vitoria.

The vessel, cargo, personal effects and baggage of her officers and crew were a total loss.

All of the deceased for whose deaths claims have been filed in this proceeding were employed on the vessel by the petitioner. They lost their lives at the time of the sinking or within a few hours thereafter.

All of the survivors who have filed claims were employed on the vessel by the petitioner. They were taken from the water some time during the morning of October 9, about fifty hours after the sinking.

The iron ore was owned by the claimant Armco Steel Corporation. The cocoa beans were owned by the claimant Wessel, Duval & Co., Inc.

At all relevant times the cargo owners were, respectively, corporations of Ohio and New York.

The ore was carried under a Charter dated September 3, 1954, executed by a duly authorized representative of Armco Steel Corporation and a vice president of the petitioner.

The cocoa beans were carried under a bill of lading in conventional form.

The petition alleges:

"Second: * * * Petitioner used due diligence to make the MORMACKITE seaworthy and at the time of the loss hereinafter set forth, and at and prior to the commencement of the voyage upon which said loss occurred, she was tight, staunch, strong, fully manned, equipped and supplied, and in all respects seaworthy and fit for the service in which she was engaged.

"Third: On September 25, 1954, the MORMACKITE sailed on a voyage from Vitoria, Brazil, to Baltimore, Maryland, laden with a cargo of iron ore and cocoa beans. She was in command of a competent and experienced master and was fully manned by a crew of competent and experienced licensed officers and unlicensed personnel. She proceeded on the aforesaid voyage without untoward incident until, on the early morning of October 7, 1954, she encountered strong winds and rough seas with long and heavy ground swells. The force of the wind, seas and swells caused her to roll and pitch and as time passed the wind, seas and swells increased in violence and caused her to roll and pitch, more and more. Speed was reduced and the course was changed to minimize the effect on the vessel but the storm did not abate and early in the 8:00 a. m. to 12 noon watch the vessel took a definite list to port. Measures to prevent a further list and to cause the vessel to return to an even keel were immediately taken and the list was arrested. The wind, seas and swells continued to bear upon the vessel with unabated force and after an interval estimated at about half an hour after the first list was taken and arrested the vessel took an additional list. The work of attempting to right the vessel continued without pause and the master ordered the radio operator to send a wireless message to inform vessels and shore stations of the danger but before further action could be taken to overcome the force and violence of the wind, waves and swells the vessel rolled over on her beam ends. The entire crew had been aroused and alerted and at the master's order from the navigating bridge took to the water. In a short time the vessel sank at a point about eighty miles E by N from Cape Hatteras. Each man was provided with an approved life preserver in good condition and the radio operator had a portable lifeboat-type wireless transmitter and receiver with which he attempted to send additional distress messages. The men in the water gathered hatch boards, dunnage boards and other objects made of wood which broke free from the vessel after she sank and improvised rafts which were used in addition to the life preservers to sustain them in the water. On the early morning of October 9, 1954, before dawn, the steamship MAKEDONIA, which had been informed by wireless of the possible fate of the MORMACKITE and alerted to watch for survivors, heard voices of men in the water. She immediately launched a boat and attempted to find them but not being equipped with a searchlight could not find anyone until dawn. Immediately upon hearing the voices in the water she notified the United States Coast Guard by wireless of her position and several Coast Guard vessels which were searching a wide area for the vessel or her survivors, and other vessels, privately-owned, began to converge on the scene at full speed. The MAKEDONIA picked up a total of eight survivors and three other survivors were picked up by other vessels. All were transferred to two United States Navy destroyer escort vessels which had been proceeding in the vicinity and were taken at high speed to Norfolk, Virginia, where they were immediately transferred to the United States Public Health

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