Nordling v. Gibbon

• Decision Date: 13 August 1945
• Citation: 62 F. Supp. 932
• Parties: NORDLING v. GIBBON et al.
• Court: U.S. District Court — Southern District of New York

62 F. Supp. 932

NORDLING v. GIBBON et al.

District Court, S. D. New York.

August 13, 1945.

Sol H. Sleppin, of New York City, for libelant.

Duncan & Mount, of New York City, (Wilbur H. Hecht and Russell T. Mount, both of New York City, of counsel), for respondent.

John F. X. McGohey, U. S. Atty., of New York City (Edward L. Smith, of New York City, and Leavenworth Colby, of Washington, D. C., on the brief), for the United States, amicus curiae.

BRIGHT, District Judge.

This libel is to recover $5,000 war risk insurance upon the life of Thor August Lindberg who was a member of the crew of the S. S. Casimir. Libellant was the designated beneficiary of that seaman under the policy of insurance. That ship, on February 26, 1942, collided with the S. S. Lara, subsequently sank, and Lindberg lost his life.

The policy, issued by Lloyds and underwritten by the respondent and others, insured deceased and the other members of the crew of the steamship mentioned, at the time of the collision and loss of life, against war risks only, in accordance with the conditions of the Full Crew Form approved by the United States Maritime War Emergency Board and by their supplement to decision No. 1 of February 6, 1942.

That Form provided for insurance against loss of life and bodily injury to a member of the crew "directly occasioned by capture, seizure, destruction by men of war, piracy, takings at sea, arrest, restraints and detainments and other warlike operations (including collisions in convoy but with reservation of subrogation rights under owner's marine policies or against other colliding vessel, in the event it is determined that such collision is attributable to marine causes) and acts of kings, princes and peoples in prosecution of hostilities or in the application of sanctions under international agreements, whether before or after declaration of war and whether by a belligerent or otherwise, including factions engaged in civil war, revolution, rebellion or insurrection, and including the risks of aerial bombardment, floating or stationary mines and stray or derelict torpedoes."

The facts are not in dispute. Thor August Lindberg concededly was insured under the provisions of the policy. Prior to February 26, 1942, the Cassimir sailed from Santiago, Cuba, bound for Baltimore, Maryland. It was a tank steamship, owned by the Cuba Distilling Company, Inc., and was laden with a full cargo of Cuban invert molasses, all of which was owned by the Defense Supplies Corporation. It was being transported under the direction of that corporation to the Curtis Bay Distillery of the United States Chemicals, Inc., of which the Cuba Distilling Company was a wholly owned subsidiary, at Curtis Bay, Baltimore, Maryland, and was intended to be distilled by the Chemicals Corporation into alcohol, under the direction of the United States War Production Board, to be used in the manufacture of smokeless powder and other war materials. The Defense Supplies Corporation was a corporate instrumentality and agency of the Government, and was used and empowered by the Government to purchase and acquire, among other things, materials, drugs, commodities and all things necessary to it in the prosecution of the war with Germany and Japan. The Cassimir, in accordance with the orders of the Navy Department of the United States, was proceeding on its voyage, completely blacked out and without showing any navigation lights of any kind, except that immediately before the collision the navigation lights on both ships were lighted. In the early morning of February 26, 1942, and while it was still dark, the Cassimir collided with the Lara, which was also proceeding without navigation lights and blacked out under the orders of the Navy Department. The Cassimir was badly damaged and shortly thereafter sank.

After the collision, in petitions for limitation of liability filed by both ships, both were held by this court guilty of fault. The Cassimir, D.C., 55 F.Supp. 822, affirmed Cuba Distilling Co. v. Grace Lines, Inc., 2 Cir., 143 F.2d 499.

The sole question involved is whether or not the loss of Lindberg's life was occasioned by "other warlike operations" underscored by me in the above quoted portion of the policy of insurance.

The Cassimir was not a war vessel. The cargo of the Cassimir was not capable of use for war in its then form. It was not consigned or to be delivered to the armed forces of this Government. The character of the Lara, of its cargo, or the nature of its business, were not shown. The collision and death, of course, occurred after the...