The following is an excerpt from Chapter 5 of: “Wrecked: The Edmund Fitzgerald and the Sinking of the American Economy,” by Thomas M. Nelson and Jerald Podair. Published by Michigan State University Press.
If you could distill the American dream into one person, it would be Toby Marcovich. In a sea of Scandinavians and Lutherans, this Jew of Russian and Lithuanian extraction stood out in Superior. “Well maybe not stood, I’m only five feet seven,” he told me. Toby was not immune to his community’s dry, self-deprecating Norwegian humor. Said Steve Eckman, an attorney of the DeParque Law of Minneapolis, Minnesota, a firm that represented two Fitzgerald families, “He was flamboyant, he was unorthodox. He was a bit like the show on TV, Better Call Saul. He was like [lead character] Jimmy McGill. That’s Toby.”
The ninety-two-year-old attorney sat across from me in his law office, behind a full-size executive desk cluttered with legal memos, knickknacks, and coffee mugs. His permanent and sincere smile made me feel like a close friend even though we had just met in person. No wonder he was such a successful attorney. In addition to black-and-white pictures marking career and legal milestones placed on the wood-paneled walls of his office, a sundrenched photo of Marcovich and his wife atop a Bradley tank with the Israeli army hung next to the door. It was the first and last thing visitors, including opposing counsel, would notice when entering and leaving his office.
More important, Toby stood out because of his legal acumen in the courtroom. In the early 1970s Toby was winning cases across the legal spectrum: settling personal injury cases for record amounts, getting small-time crooks out of murder convictions, and representing families of the fallen sailors of the Edmund Fitzgerald.
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His connection to the families of the Fitzgerald was natural, and not just because he was the top plaintiff’s attorney in the Northwoods. From the docks of Superior and Duluth, Minnesota, to the imposing shipyards of Ohio, Toby called the USS Philip Minch home for the summers of 1947, 1948, and part of 1949. He was one of them.
Toby was a local boy made good. He earned his JD from the University of Wisconsin–Madison in 1954. He turned down a professorship at Stanford University to return home, where he was elected Superior city attorney, later served as an assistant district attorney, and finally established a private practice in 1968.
You could say Toby was a renaissance man of sorts. An amateur pilot, Toby would log 5,000 air hours over his life. In his single-engine Cessna airplane, which translated into over 700,000 miles or twenty-eight laps around the planet. A good chunk of those miles was logged between the city airport in Superior and Chicago’s O’Hare International Airport when he was settling cases for two of his three Fitzgerald clients, Janice Armagost and Doreen Cundy. The third client was the family of Porter Freddie Beecher. Beecher was single with no dependents. Maritime law considers a life worthless if the soul had an uncle and not a spouse or children, as was the case for Mr. Beecher. And even that didn’t mean much to Oglebay Norton Corporation. “I was able to settle it for a small amount just so they’d get rid of me,” Toby told me.
Toby also had close connections to the families. Beecher’s uncle was a cop in Superior and Toby worked closely with him when he was a prosecuting attorney for the county. Toby had a couple of connections to Ransom Cundy, Beecher’s best friend. Cundy’s wife was a waitress at a nearby diner that Toby frequented. Cundy was also a good customer at the corner bar, and Toby knew the owner. Toby wrote a will and last testament for Michael Armagost. He would run into the Armagosts for Friday night fish fries at a supper club in Iron River, thirty-eight miles east of Superior, near where Toby had a cabin.
Toby found Mrs. Armagost in his office waiting room the morning after the ship’s sinking. She knew exactly what to do when word of the ship’s demise reached her. Before setting off to the Superior docks just two days earlier, Michael had told his wife, “If anything happens to me, just call Toby.”
It was in a Chicago boardroom where Toby went head-to-head with a phalanx of lawyers defending the good name and reputation of their client, Oglebay Norton Corporation. But Toby would not be intimidated by the big city attorneys. From an early age, he learned to fight back against schoolyard bullies who tried to take advantage of his size and toss around cruel jokes. He endured those attacks and insults for some time. “That was, until I learned to fight back,” Toby told me. Now, attorney Toby would need that kind of fortitude and endurance for the Fitzgerald cases. His first trip to the Windy City on his Cessna 337 would not be his last.
Overall, the attorneys for the families of the Fitz didn’t have much to go on. Their leading piece of evidence was at the bottom of a lake, covered with and surrounded by 416 million taconite pellets. Plus, no one knew what they would find down there—or when. Photographic and film technology was relatively rudimentary at the time, and no one was confident in its quality. There could be a smoking gun, or there could be nothing. No one wanted to wait around any longer. Justice moved slowly enough.
Coast Guard investigators put eyeballs on the wreckage in May of 1976. Not surprisingly, the pictures showed a ship battered and bruised and snapped in half with twenty-six thousand long tons of taconite pellets scattered on and around the wreckage. There were no bodies nor any compelling pieces of evidence. The families and loved ones of the fallen sailors weren’t any closer to the answers to the important questions: why it sank, what caused it, and who was responsible. Families and their attorneys would have to look elsewhere or hope for a bit of luck to come their way.
For Toby, luck came early. Incredibly, Ransom Cundy had taken a picture of his wife on top of the ballast tanks in the hull of the Fitzgerald a few years earlier. The ballast tank is at the bottom of the inside of a ship’s hull. It is about six feet deep. The area is filled with water when ships make their return trip to port without cargo. Its purpose is to give the ship stability as she sails. At first blush, it seemed completely ridiculous. “Why the hell anybody would go down there and take a picture is beyond me,” Toby recalled. “She’s standing on top of the ballast tank in front of a rib. It’s just nuts. Getting down there is a project in itself.”
Crawling down into a ballast tank is not unlike slipping down a manhole in the middle of a street. There is a lot of activity upstairs, but under the street—behind the scenes—hides the true anatomy that makes the road work. Downstairs it’s ugly and raw: unkempt and rusted stairs, pitch-black surroundings, and the constant ringing of noises above and below the hold. If a sailor is inside the ballast area for too long, he could fall victim to dead air and pass out. Work in the ballast was considered the least desirable of chores on a ship.
The Fitzgerald was known by reputation as a “wet ship” because the ballast never completely emptied from the tanks. It would collect lake-bottom dirt and sludge, which would accumulate and measure up to three feet high at times. Worse, the crew would only clean it out when ordered by the Coast Guard, and even then it was done half-way. Over time, collected water and dirt in the hull could rust the ship’s bottom and weaken its structure.
What was truly incredible about Cundy’s picture is that it showed a hairline crack in a rib on the hull. There she was in all her glory—the smoking gun that would close the case. While slightly faded, the crack ever so carefully crawled down the side behind Mrs. Cundy’s right shoulder. It was real. Toby’s legal career reflected a charmed life, and this encounter was no exception. He sent the picture off to a lab to be analyzed.
One report was inconclusive, but the other one affirmed his initial suspicions. He sent the latter (“Of course, I only sent the one that helped my case”) to the plaintiffs’ attorneys committee, a loose consortium of lawyers representing various families. Despite the expert opinion, Toby’s colleagues seemed unimpressed. But for Toby it did come in handy. He held onto the photo until the very end of his negotiations. When he disclosed the evidence, the attorney settled soon after. Following the conclusion of the negotiations, he filed it away in a banker’s box in his law office basement where it would then be lost to an accidental flooding several years later.
