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Moore-Mccormack Lines Inc. v. Richardson

October 25, 1961

MOORE-MCCORMACK LINES, INC., PETITIONER-APPELLANT-APPELLEE,
v.
JEAN O. RICHARDSON, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF HAROLD R. RICHARDSON, ET AL., CLAIMANTS-APPELLEES-APPELLANTS.



Before Lumbard, Chief Judge, Madden, Judge, United States Court of Claims,*fn* and Waterman, Circuit Judge.

Author: Lumbard

LUMBARD, Chief Judge.

Moore-McCormack Lines, Inc., appeals from a final decree of the United States District Court for the Southern District of New York in an admiralty proceeding awarding damages against Moore-McCormack to eleven claimants for losses resulting from the capsizing of the steamer "Mormackite" off Cape Hatteras on the morning of October 7, 1954, with the loss of 37 lives and a cargo of iron ore and cocoa beans. The death claimants crossappeal, challenging the district court's disallowance of interest from the date of death on the four death claims and the set-off against certain of the awards of the receipts from insurance policies on which Moore-McCormack had paid all the premiums.

In 1954 Moore-McCormack brought a limitation proceeding. 46 U.S.C.A. § 183 et seq. After trial on the issues of liability and limitation, the district court found Moore-McCormack liable without limitation to all claimants, death, personal injury and cargo alike. Petition of Moore-McCormack Lines, Inc., D.C.S.D. N.Y.1958, 164 F.Supp. 198. We affirmed as to the personal injury and death claimants, but upheld Moore-McCormack's right to limitation against the cargo claimants. Moore-McCormack Lines, Inc. v. Armco Steel Corporation, 2 Cir., 1959, 272 F.2d 873, certiorari denied 1960, 362 U.S. 990, 80 S. Ct. 1079, 4 L. Ed. 2d 1023. The district court then proceeded to determine the amount to which each personal injury or death claimant was entitled. Petition of Moore-McCormack Line, Inc., D.C.1960, 184 F.Supp. 585. From the resulting awards on four of the death and seven of the personal injury claims Moore-McCormack now appeals.*fn1

Moore-McCormack, while not challenging the power of the trial court to award upon sufficient proof compensation for all items of damage making up the awards, objects to many of the awards as being excessive. It also contends that the district judge insufficiently detailed certain of the findings of fact and on occasion erred in his computation. That we have both the power and the duty to examine awards for excessiveness, even when the awards are made by a jury, seems well established. See Dagnello v. Long Island R.R. Co., 2 Cir., 1961, 289 F.2d 797. We do so here where the awards were made by a judge in admiralty.

The district court allowed damages for the pain and suffering endured by the members of the crew after the "Mormackite" capsized on October 7, 1954 at 9:45 A.M. at the rate of $300 per hour for each hour before death or rescue. The length of suffering varied from ten hours in the case of Carmen Cadiz, who the court found died at approximately 7:30 P.M. on the day of the sinking, to an award for fifty hours to Charles Henry, the last survivor to be picked up from the water. Thus these awards ranged from $3,000 to $15,000.

We think $300 per hour for pain and suffering while in the water is excessive. That the crew's experience before the death of most of them and the rescue of the remaining few was harrowing and bitter in the extreme is clear from Judge McGohey's summary at 184 F.Supp. 585, 589-590. We agree with the trial judge that there is no way of differentiating between the suffering of any deceased or survivor and that the award should be assessed on the same basis as to all. Concededly, there is also no way by which suffering can either be measured or compensated for in money. But courts are nonetheless required to do precisely that, and they have attempted to resolve this insolvable problem in scores of cases.*fn2 As the awards in each case turn on so many varied facts, no purpose would be served in citing precedents. However, from such guidance as the numerous decisions dealing with the problem afford, we conclude that the award of $300 an hour is excessive and that it should be reduced to $150 per hour. Since this is the only issue before us in the Sullivan, Henry, Hernandez and Williams claims, these awards are modified accordingly, and as so modified are affirmed, with interest from the date of the district court decree, June 3, 1960. We proceed to consider the other issues raised with respect to the seven other claims.

Claims from the Death of Harold Richardson

Richardson, the chief mate, was a competent officer and had made a distinguished record with the Moore-McCormack Lines. The district court found that he survived for twenty-four and onehalf hours in the water before he died and allowed $7,350 for pain and suffering.

The district court allowed to the widow for herself and Richardson's two minor children damages to talitaling $184,361. Moore-McCormack claims error in the manner in which the court computed the present value of the future pecuniary loss to be $118,296, contending that this item should be reduced to $113,592. The trial court found the estimated loss for each year discounted by 4% and totaled the resulting figures. Moore-McCormack urges that an average annual loss for the decedent's entire remaining working life expectancy be calculated and the present cost of an annuity paying that sum be awarded. As the district court found that Richardson's beneficiaries would have received more for the years 1962 through 1971 than for the years 1972 through 1987, the method of the district court seems to us more fair and exact than that proposed by Moore-McCormack.*fn3

Moore-McCormack further complains that the awards to the Richardson children for loss of nurture were excessive. The district judge found that the fair value of the lost care, guidance and training to each of the two daughters during minority was $1,000 per year.

There was evidence to support an award for loss of a father's care, guidance and training. See Norfolk & Western Ry. v. Holbrook, 1915, 235 U.S. 625, 35 S. Ct. 143, 59 L. Ed. 392; Sipes v. Michigan Cent. R.R. Co., 1925, 231 Mich. 404, 204 N.W. 84. As the two daughters were aged 7 and 4 respectively in October of 1954, it was necessarily difficult for the claimant to supply much evidence concerning the father's contribution to the training of his daughters. It was testified that Richardson was an attentive father, concerned with the welfare of his children and that he spent as much time as he could with them during his periods of shore leave. From his prior record and character there was good reason to believe that he would have made a real contribution to their nurture, guidance and training, particularly in furture years. An award for the loss is therefore justified. See 2 Harper & James, The Law of Torts, § 25.14 (1956), McCormick, Damages, § 99 (1935). Although the compensation is generous, substantially more was awarded for loss of nurture in both Meehan v. Central R.R. Co. of New Jersey, D.C.S.D.N.Y.1960, 181 F.Supp. 594, 621-622 ($1,200 per year to each child) and Rogow v. United States, D.C.S.D.N.Y.1959, 173 F.Supp. 547, 561-562 ($1,420 per year to each child). In Meehan and Rogow there may well have been evidence of greater loss, particularly since here the deceased were seamen necessarily absent from home much of the time, but all such distinctions are adequately reflected in the comparative modesty of the awards presently reviewed.

We therefore modify the Richardson award by reducing the amount allowed for pain and suffering from $7,350 to $3,675. The district court properly offset against the award sums paid to Richardson's widow under a liability insurance policy (derived from the Second Seamen's War Risk Policy) taken out by petitioner and on which all premiums had been paid by petitioner. See Lawson v. United States, 2 Cir., 1951, 192 F.2d 479; O'Connor v. United States, 2 Cir., 1959, 269 F.2d 578; 2 Harper & James, Law of Torts, § 25.22 (1956). The award as modified therefore totals $175,186.

Claims From the Death of Edward T. Wall

Edward T. Wall had been the vessel's chief engineer. The court found that he died after twenty-seven hours in the water. Thirty-four years of age at the time of his death, he left a widow, and three children, aged 16, 10 and 3. The district judge allowed damages to each of the three children at the rate of $1,000 per year for loss of care, guidance and training until they became 21 years of age.

For the reasons previously given we reduce the damages allowed for pain and suffering from $8,100 to $4,050. We affirm the awards for loss of nurture. The total awarded on this claim is therefore reduced from $190,159 to $186,109.

Claims From the Death of Lawrence Berk

Lawrence Berk, third assistant engineer on the "Mormackite," was twenty-five years old at the time of his death. He was unmarried and lived with his parents and younger brother, Norman, whose ages were respectively 54, 46 and 14 years. The district judge found that Berk had died after ten and one-half hours in the water.

For loss to Berk's parents of future benefits,*fn4 the lump sum of $20,000 was allowed. As Moore-McCormack points out, this is sufficient to provide an annuity of $1,000 per year to the parents for the normal life expectancy of their deceased son, despite the fact that they would normally have predeceased him by a considerable period of time. Moreover, the evidence shows that neither of Berk's parents were dependent upon him for their normal living expenses nor is it likely that they would thereafter have been forced to look to him for the major portion of their living expenses. In any event, in view of the trial judge's finding that Berk would have married by the time he reached the age of thirty in 1959, it is highly improbable that Berk would have been able to give or would have given to his parents so substantial a sum as was here awarded. We agree with the district judge that Berk's unusual generosity in contributing $7,200 to the cost of his parents' house is not a reliable indication of the extent of his future generosity, particularly since this house, at the time of its purchase, was Berk's home as well. Under these circumstances Berk might reasonably be expected to give, at the very most, $500 per year during the twenty-five years of life expectancy of the younger parent at the time of the decree. The present value of an annuity of $500 per year for twenty-five years discounted at 4% is $7,811. Recognizing that Berk might from time to time make special gifts to his parents, we think a proper allowance was $10,000 and accordingly we reduce this portion of the award from $20,000 to $10,000.

For the reasons already stated the award for pain and suffering must be reduced from $3,100 to $1,550. Properly offset against the award were sums paid under a seamen's insurance policy, see Richardson claim, supra. The total award is therefore reduced from $23,850 to $12,300.

Claims From the Death of Carmen Cadiz

Carmen Cadiz, thirty-eight, the third cook, was survived by his widow and two sons, age 33, 10 and 9 years respectively. The trial judge found that Cadiz survived for ten hours in the water before ...


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