United States v. Abbott

• Decision Date: 07 April 1937
• Docket Number: No. 11.,11.
• Parties: UNITED STATES v. ABBOTT et al.
• Court: U.S. Court of Appeals — Second Circuit

89 F.2d 166 (1937)

UNITED STATES v. ABBOTT et al.

No. 11.

Circuit Court of Appeals, Second Circuit.

April 7, 1937.

Burlingham, Veeder, Clark & Hupper, of New York City (Chauncey I. Clark and Eugene Underwood, both of New York City, of counsel), for appellants Abbott and Warms.

Lamar Hardy, U. S. Atty., of New York City (F. W. H. Adams, Joseph Prendergast, and Walter B. Lockwood, all of New York City, of counsel), for the United States of America.

Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The above-named defendants were all convicted of violating section 461, title 18, United States Code (18 U.S.C.A. § 461) which reads as follows:

"Loss of life by misconduct of officers of vessels; liability of corporation officer. Every captain, engineer, pilot, or other person employed on any steamboat or vessel, by whose misconduct, negligence, or inattention to his duties on such vessel the life of any person is destroyed, and every owner, charterer, inspector, or other public officer, through whose fraud, neglect, connivance, misconduct, or violation of law the life of any person is destroyed, shall be fined not more than $10,000, or imprisoned not more than ten years, or both. When the owner or charterer of any steamboat or vessel shall be a corporation, any executive officer of such corporation, for the time being actually charged with the control and management of the operation, equipment, or navigation of such steamboat or vessel, who has knowingly and willfully caused or allowed such fraud, neglect, connivance, misconduct, or violation of law, by which the life of any person is destroyed, shall be fined not more than $10,000, or imprisoned not more than ten years, or both."

The defendants Eben S. Abbott and William F. Warms are the only defendants who have appealed. The former was the chief engineer and the latter the master of the steamship Morro Castle that met with disaster on September 8, 1934, from a fire which arose when she was off the New Jersey coast and en route from Havana to New York. As a result of the fire and the panic which ensued, upward of one hundred of those on board were burned to death or drowned.

The Morro Castle had 318 passengers and a crew of 231. Robert R. Wilmott was her master when she sailed from Havana for New York, but he died about 7:45 p. m. on September 7, 1934, and Warms, being the chief officer, took over the command of the vessel. Wilmott had been master since November, 1930, and Warms mate since April, 1932. Probably just before 3 a. m. on September 8, 1934, Warms was notified by two night watchmen and a sailor named Dunn that smoke was issuing from a ventilator on the port side of the bridge deck and that there was a fire in the writing room. Warms himself then went to the place where the ventilator came out on the bridge deck and saw smoke issuing from it. Thereafter the indicator on the bridge showed the spread of fire to other parts of the ship and Warms rang the fire alarm and sent one Welch, the bridge lookout, below to arouse the boatswain and crew and also told acting third officer Hansen to take care of the passengers. At about the same time he had a CQ or "standby" signal sent out by the radio operator. The first and second officers, whom Warms had sent down to deal with the fire, thereafter reported that it was out of control and at 3:18 a. m. Warms ordered an S O S issued. The government's contention is that he learned of the fire at 2:40 and that in spite of its gravity he neglected to send out the S O S for over half an hour and also that he was unduly slow in sending in the fire alarm. There was evidence, on which the government relies, that he neglected to follow up his orders in respect to the passengers and failed to give directions to have them taken to the starboard lifeboats on A deck, and that as a result of the delay many of them jumped into the sea and were drowned and others were burned to death, although six lifeboats were safely launched and reached the shore carrying about 90 members of the crew and only 7 passengers and to a great extent unoccupied. It is charged that Warms failed to see that directions were given to close the fire screen doors to prevent the spread of the fire, or to put water in the fire lines. His answer to those charges was in substance that other officers of the ship had been sent to do whatever was necessary to fight the fire. But the lack of proof that he did much either to supervise these matters or to see that the other officers were attending to their duties and that passengers were placed in the lifeboats may have left the question whether he was guilty of negligence which caused loss of life one for consideration by the jury. His answer to the last charge is that he gave the signal to abandon ship at 3:10 a. m. and ordered the second officer to take charge of the manning of the boats.

The fire spread with great rapidity and cut off many of the passengers from access to the boats, but, in spite of the fact that the responsibility of Warms as master of the vessel was a new one, that the situation required management of passengers and crew in a terrible emergency, and that he maintained the best traditions of the sea by staying on his vessel until the bridge had burnt under him and no one else remained on board, it may be that there was enough proof of negligence, rather than of mere errors in judgment, to justify submission of the case against him to a jury. We do not need to decide this difficult question which depends on reasoning after the event about what ought to have been done at a time of storm and stress where the considerations for action were conflicting and doubtful.

The chief difficulty in sustaining Warms' conviction is that some of the most important charges of neglect submitted to the jury were his alleged failure when acting as mate during the years he was on the vessel before the fire to conduct proper fire and boat drills. It is said that the neglect to hold proper drills accounted for the confusion and inefficiency of the crew when the fire broke out and contributed to the great loss of life. There was proof that the drills had been inadequate and failed to comply with the regulations. But we think it cannot be said that the duty to regulate these drills devolved upon Warms and are of the opinion that he was only liable for neglect in so far as the conduct of drills was assigned to him and he failed properly to carry out what thus came within his province. Not only was Warms' testimony to the effect that the drills were always in the presence of Wilmott, who ordered them and was on the bridge whenever they were in progress, but the testimony of Welch, Dunn, Bernhardt, and Dinne tended to confirm what Warms said. The evidence we think tends to show that Wilmott was in general charge of the drills before Warms joined the ship and that after the advent of the latter he continued his former practice. Wilmott, and not Warms, told the operating vice president of the line that he had decided not to lower the lifeboats to the rails, and Wilmott it was who excused the purser and the chief engineer from attendance. Moreover, it seems unlikely that, if Warms was in general charge, he would have been personally engaged in such routine activities as routing out members of the crew to take part in the drills. The fact that he at times gave orders respecting the drills in the presence of the captain does not negative, but rather confirms, the absolute control of the latter. It was certainly wholly consistent with such control and makes any conclusion to...