Reinold v. United States, 106

• Citation: 167 F.2d 556
• Decision Date: 29 April 1948
• Docket Number: No. 106,Docket 20730.,106
• Parties: REINOLD v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

167 F.2d 556 (1948)

REINOLD v. UNITED STATES.

No. 106, Docket 20730.

Circuit Court of Appeals, Second Circuit.

April 29, 1948.

John F. X. McGohey, U. S. Atty., of New York City (Edward L. Smith, Sp. Asst. to Atty. Gen., and Benjamin H. Berman, Sp. Atty., Department of Justice, of Washington, D. C., of counsel), for the United States.

Frederick R. Graves, of New York City, for Mary Louise Reinold, libellant-appellee.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

Libellant, Mary Louise Reinold, is the beneficiary under a Crew Life and Injury Policy of Insurance issued by the War Shipping Administration covering the master, officers and crew of M/V Baltic. The sole issue is whether the death of Ernest F. Backus, the chief officer of the vessel, who was shot and killed on board by a drunken armed guard resulted from a peril insured against.

The Baltic was of Panamanian registry, was operated by the Panama Transport Company, and was under a time charter to the War Shipping Administration. She had aboard a cargo of crude oil destined for Montevideo, which was loaded at La Libertad, Ecuador, and consigned to Administracion Nacional de Combustibles, Alcohol y Portland of the Government of Uruguay. While the vessel was in the harbor of Montevideo, discharging her cargo, she was equipped with machine guns and had aboard an Armed Guard consisting of an ensign and naval personnel who had come on the vessel at Miami. Such an Armed Guard was in conformity with the usual practice aboard merchant vessels chartered by the United States during the recent war.

On the evening of June 29, 1943, the master of the Baltic and the commanding officer of the Armed Guard were ashore, and the chief officer Backus was left in charge of the merchant crew, and Pendarvis — gunner's mate — was left in charge of the gun crew. About 8 P.M. Williams and Brown of the merchant crew came aboard with a quart of whisky and asked Rosborough, a member of the gun crew who was on gangway watch, to drink with them. Rosborough was relieved from his watch, and he, Williams and Brown went below and Rosborough drank most of the quart of whisky and became drunk. Backus and Rosborough got into a fight. Pendarvis attempted to break up the fight and put Rosborough to bed three times. Finally, Rosborough went about looking for a knife which he did not get, went on the bridge, and was seen near the starboard machine gun. From there he fired a burst in the air, whereupon Phillips of the Armed Guard, Williams of the merchant crew, and Backus, the chief officer, proceeded to the bridge and Williams got one arm around Rosborough's neck and seized his left arm, while Phillips and Backus approached to assist. At this Rosborough fired a burst on the gun, while Williams continued to struggle with him; Backus was struck by the fire and killed almost instantly. Thereafter the libellant, the beneficiary in his insurance policy, sued the United States under the Suits in Admiralty Act to recover $5,000 as the amount named in the policy payable for loss of life of the insured by reason of risks enumerated in the following clause of the policy:

"Against loss of life and bodily injury to the master, officers, and crew (including within the term `crew' licensed and unlicensed seamen, including radio operators and cadets) directly occasioned by capture, seizure, destruction by men of war, piracy, takings at sea, arrests, 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 District Judge found that "Backus, while in the performance of his duty, was shot and killed and that the proximate cause of his death was the restraint exercised by the U. S. Navy while said vessel was engaged in warlike operations." In our opinion the proximate cause of the death was not either a restraint or any other enumerated or contemplated risk covered by the policy.

The Wartime Instructions for United States Merchant Vessels were in evidence and so far as pertinent for our consideration contained the provisions set forth in the margin.¹ It appears from these "Instructions" that the commander of the Armed Guard is the "military adviser" of the master of the vessel, that the latter "commands the vessel" and is charged with "the safety of all persons on board," and also that the Armed Guard is "subjected to the orders of the master of the merchant vessel as to matters pertaining to internal organization." The partial independence of the Armed Guard with respect to such matters as military discipline was not in our opinion sufficient to constitute a "restraint" of the vessel as that word is used in the policy. The master...