Crist v. United States War Shipping Administration, 57.

• Decision Date: 15 January 1946
• Docket Number: No. 57.,57.
• Citation: 64 F. Supp. 934
• Parties: CRIST v. UNITED STATES WAR SHIPPING ADMINISTRATION.
• Court: U.S. District Court — Western District of Pennsylvania

64 F. Supp. 934

CRIST v. UNITED STATES WAR SHIPPING ADMINISTRATION.

No. 57.

District Court, E. D. Pennsylvania.

January 15, 1946.

Freedman, Landy & Lorry and Abraham L. Freedman, all of Philadelphia, Pa., for plaintiff.

Charles R. Sheidy, Jr., Asst. U. S. Atty., of Reading, Pa., Arnold W. Knauth, Head Atty., Claims Div., Department of Justice, of Washington, D. C., and Howard F. Fanning, Sp. Asst. to U. S. Atty., of New York City, for defendant.

WELSH, District Judge.

This is an action by the libellant to recover war risk insurance for the death of her son, Theodore W. Ellse, an American merchant seaman, under the rules and regulations of the Maritime War Emergency Board.

The decedent, Theodore W. Ellse, was in the employ of the Waterman Steamship Corporation as a member of the crew of the Steamship "Maiden Creek", a vessel documented under the laws of the United States. The "Maiden Creek" which was carrying high test gasoline departed in convoy from New York about October 8, 1942, bound for Greenland. She arrived at this latter place on October 28th, and thereafter the convoy was re-formed, some vessels continuing to the British Isles, others taking a southerly direction bound for Newfoundland and the United States. At the port of Botwoodszille, Newfoundland, ore concentrates were loaded aboard the "Maiden Creek". She then proceeded to St. John, Newfoundland, where she was ordered into a convoy bound for New York. On this portion of the voyage the vessel encountered severe weather. She began to labor, and when it became apparent that she could not keep up with the convoy, the vessel was instructed to change course and proceed to Halifax, Nova Scotia, to replenish the supply of fuel as well as to temporarily seek shelter. When the vessel entered the port of Halifax, it was down by the head with the forepeak and chain locker filled with water. The water in the forepeak was pumped out, but the vessel remained down by the head on an uneven keel with part of the rudder and propeller showing in the stern. Without any repairs having been made, the "Maiden Creek" was ordered to join a convoy at a specific time en route to New York. Before departing, the captain of the vessel had received his instructions at a convoy conference under the supervision of the military authorities. On December 31, 1942, while the convoy was proceeding from Halifax to New York, it encountered a storm and heavy seas, and as a result the "Maiden Creek" began to labor very heavily. Because of these internal and external difficulties described above, the "Maiden Creek" began to lose headway and fell behind the convoy. She thereupon sent out a distress call and was answered by another merchant vessel, the "Exhibitor", which agreed to stand by and take aboard the crew of the "Maiden Creek". While the "Maiden Creek" was being abandoned and her seacocks opened so that she would sink and not be a hazard to navigation, the "Exhibitor" because of the fear and imminence of enemy craft in the vicinity steamed away, leaving the crew of the "Maiden Creek" in two life boats somewhere in the North Atlantic. One of these life boats containing libellant's intestate among others was lost at sea with all hands.

Libellant contends that Theodore W. Ellse was lost as a result of a risk of war and warlike operations and in defense it is argued that the cause of the death was a marine peril not covered by the insurance policy and that our decision should be governed by Queen Insurance Company v. Globe & Rutgers Fire Insurance Company, 1924, 263 U.S. 487, 44 S.Ct. 175, 68 L.Ed. 402, and other similar cases.

Under Decisions Nos. 1 and 2 of the Maritime War Emergency Board, the crew of American Merchant vessels were required to be insured against loss of life due to "risks of war and warlike operations" and the policy prescribed by supplement to Decision No. 1 of the Maritime War Emergency Board provides against loss of life due to "capture, seizure, arrest, restraint and detainment and other warlike operations and acts of kings, princes and people in prosecution of hostilities. * * *"

The record is replete with testimony tending to show that the military authorities exercised complete control over the convoy which included the "Maiden Creek". The latter could only leave port under the direction and supervision of the naval escort. The Master was required to attend convoy conferences for instructions concerning the navigation and control of his vessel. The Master could exercise no discretion, he had to leave in convoy pursuant to a definite plan which required the vessel to hold a certain position in the convoy and maintain a course as directed by the Naval escort. A Navy gun crew was aboard the "Maiden Creek" as well as on every other American vessel which put out to sea during wartime. The "Maiden Creek" was forced to put to sea in an unseaworthy condition and ordered to maintain a specified speed and course in the convoy. That these enumerated compulsions and controls constitute a "restraint" as provided for in the supplement to Decision No. 1 of the Maritime War Emergency Board is we think too clear to require much more than mention. In this connection, however, it must be stated that proof of a "restraint" does not per se entitle a claimant to the benefits of war risk insurance. Proximate cause between the "restraint" and the injury or death as the case may be must be shown. Therefore, the sole question is whether the death of Theodore W. Ellse was proximately caused by the "restraint" imposed by the military authorities, or by an ordinary sea peril. In Muller v. Globe & Rutgers Fire Ins. Co. of New York, 2 Cir., 1917, 246 F. 759, 762, it was stated: "That cause is proximate which sets the other causes in motion; only when causes are independent is the nearest in time looked to. * * * If there is an...