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June 30, 1958

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,
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

The opinion of the court was delivered by: MCGOHEY

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. *fn1" 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 dual 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 of 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 Service Hospital. * * *

 'Fourth: The aforesaid loss of life and the loss of the MORMACKITE and her cargo by reason of the premises were not caused or contributed to by any fault, neglect, design or want of care on the part of petitioner, the MORMACKITE or those in charge of her or of anyone for whom petitioner may be responsible, but were due to act of God and/or perils of the sea and navigation and/or latent defects not discoverable by the exercise of due diligence and/or to errors of judgment in navigation or management of the vessel.

 'Fifth: The aforesaid sinking on October 7, 1954, and the loss of life, damage and destruction resulting therefrom or consequent thereupon, were occasioned and incurred without the privity or knowledge of petitioner or of the master of the MOBMACKITE or of the superintendent or managing agent of petitioner or of any of them at or prior to the commencement of the voyage upon which the MORMACKITE was then engaged.'

 About a year after filing the petition, the cross-libels were filed. These allege, in substance, that the loss resulted from the failure and neglect of the master, chief officer and chief engineer, in violation of their respective employment contracts, properly and efficiently to perform their duties with respect to the stowage, management and navigation of the vessel. They seek indemnity for her loss and such sums as the petitioner may be required to pay on the claims arising therefrom.

 It is not disputed that the wind was strong and the seas heavy when the disaster occurred; that some time during the morning the ore shifted and the vessel listed to port and eventually capsized and sank.

 There was dispute as to the severity of the wind and seas on the morning of the loss; whether in the conditions existing on that morning the Mormackite was properly navigated and managed by the master, chief officer and chief engineer; whether she had adequate stability when she sailed on the fatal voyage; whether, if she did not, this resulted from the petitioner's failure to furnish her officers with sufficient accurate data and equipment to determine her actual stability; whether the ore was properly stowed; whether, if it was not, this was due to her master's neglect and with privity and knowledge of her owner.

 The vessel's logs were lost. Accordingly, her officers' personally recorded observations of the weather encountered on the day of the sinking are not available. However, the survivors and the two experienced weather experts who testified were in substantial agreement as to what the weather was on that day. The vessel had encountered only fine weather from September 25, the day she sailed, until early in the morning of October 7. The wind had begun to freshen around midnight. Although the wind and waves increased thereafter, she encountered no unusually heavy seas and she rolled only moderately until shortly before 4 A.M. From then on, the force of the wind and the height of the waves increased but at no time was the wind much greater than force 8 on the Beaufort scale, that is, a fresh gale averaging 37 miles per hour. The significant height of the waves was about 20 to 22 feet. The period of the waves was about 7 seconds. In the afternoon the weather moderated considerably.

 The Mormackite sustained no structual damage prior to the sinking. The weather on the fatal morning, though rough, was no worse than is common off Hatteras during October and so, was to be expected on this voyage. A stable seaworthy vessel, properly navigated and managed, should have been able to survive in it. Others in the vicinity at the time did. The loss did not result from a peril of the sea. *fn2"

 There was, understandably, some variation in the survivors' recollections of the details and sequence of significant events on the morning of the sinking. However, the sum of their testimony presents a fairly clear account of what happened. I find it was as follows. Shortly after 4 A.M., heavy seas struck the vessel's starboard side, rolling her very hard to port about 20 to 25 degrees. The ore shifted. This was heard by some survivors. The vessel took a port list. Her speed was reduced at once. Hernandez, the chief steward, was thrown from his bunk by the roll. Henry, a room steward, was awakened and shifted his pillow to the opposite end of his bunk in order to accommodate himself to the list. He remained in his bunk. Hernandez dressed and proceeded to inspect the officers' and crew's mess rooms and the galley, for breakage. His room was on the main deck. He first went to the deck immediately above and checked the officers' mess and pantry. He then went up to the next deck to the captain's quarters. Both the master and chief officer were already out of their rooms. Normally they would not be up at that hour. Hernandez then went down to the main deck to check the conditions in the crew's mess and the galley. While making his inspections there he 'noticed the ship was having that same list that they had when (he) woke up.' The list, however, was being corrected. By the time his inspections were finished the vessel had only 'a little list' and, although not entirely sure, he thought she even may have been 'all straight up.' Other survivors said she still listed to port to some extent when they went to breakfast at 8 o'clock. I find she did; and that, after 4 A.M. she rolled more to port than to starboard. The crew nevertheless went about their regular duties as usual.

 During breakfast the rolling became more severe. Heavier seas were still coming from starboard. Some time after 8:30, there was another very violent roll to port. The ore shifted heavily again. This also was heard by some survivors. It made a noise like coal being dumped on the deck. The shifting continued. The vessel took a severe port list. When this occurred most of the crew got their life jackets and congregated at the starboard rail on the main deck aft. The list increased steadily. Chief Officer Richardson and Chief Engineer Wall were then seen attaching fire hoses to the sounding pipes leading to the starboard deep tanks.

 Just before the vessel went all the way over on her port side, the men at the stern walked forward on her starboard side to about amidships and then down into the water. As far as is known, all personnel, except Captain McMahon and two unidentified men, got off. These three were last seen on the bridge just before the others went into the water. They were not seen thereafter. About 50 hours after the sinking the survivors were rescued as described in paragraph 'Third' of the petition set forth above.

 At or shortly after 8:30, speed had been increased. Roman, a wiper, was in the engine room at the time. His sea experience totaled about 13 months. He did not testify in person. The petitioner read from his deposition taken on April 26, 1955. When the ship rolled violently, tools in the engine room were thrown to the deck, causing a great noise. Roman left. He went up to his room, got his life jacket and joined the men on the main deck aft. At or about the time the violent roll occurred, he observed the speed indicator and it then registered 'full speed.' However, 'the next telegraph order from the bridge' was 'full stop; then they put it -- every moment it was changing.'

 Lemell, second electrician, was checking electric lights on the bridge at about this time. Just before the violent roll which he called a 'jar,' he noticed an increase in speed and he heard the chief officer, Richardson, tell the junior mate he would show him 'how to drive her through the bad weather.'

 The petitioner contends the conditions existing at 8:30 not only did not justify an increase in speed, but, on the contrary, required that this be avoided; that Chief Officer Richardson was grossly negligent in ordering increased speed; that this and other acts of negligence to be later discussed, proximately caused the loss of the vessel and cargo and death and injury to her officers and crew.

 It must first be noted that there is no testimony whatever that Richardson ordered the increase in speed. He was, it is true, on the bridge at the time. But that alone does not support an inference that he ordered the increase in speed. Captain McMahon also was up and about, as he had been since 4 o'clock. There is no reason to suppose he was not using his own judgment in the crisis and exercising his full authority as master to carry it out. Indeed that testimony of survivors shows he was. He was seen on the bridge. He was heard ordering ...

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