The opinion of the court was delivered by: RYAN
These suits in the admiralty arise from a collision on the morning of December 16, 1942, between the United States Navy Ship YMS-12 and the steam tanker John Worthington, at sea in a buoyed channel in the approaches to the New York harbor.
The YMS-12 alone sustained collision damage.
The S.S. John Worthington, at the time of the collision, was being operated under the terms of a charterparty to the Government.
In one suit, the United States in a collision libel filed as owner of the YMS-12 sues the Standard Oil Company of New Jersey (hereafter, Standard Oil), as owner and operator of the S.S. John Worthington, for damages sustained by the YMS-12. The answer interposed pleads an affirmative defense based on the war risk insurance provided by the Government under Clause '20' of the charterparty.
In the second suit, Standard Oil sues the United States upon the contract of war risk insurance for any sum which Standard Oil may be held liable to pay in the collision action, and the expenditures necessarily incurred in the defense of that action.
The following findings of fact are made with the consent of all parties by stipulation; no issue of fact remains for determination by the court; all questions of fact have been resolved.
(1) At all material times the United States of America owned and operated the United States Ship YMS-12, a mine sweeper of the United States Navy, manned and commanded by the United States Naval personnel, and Standard Oil Company of New Jersey owned and operated the Steamship John Worthington, a tank ship.
(2) Between 5:00 and 6:00 a.m. on December 16, 1942, a collision occurred between the United States Ship YMS-12 and S.S. John Worthington in a buoyed channel otherwise known as the swept channel in the approaches to the New York harbor. Said channel was marked by center line buoys from a point about twenty-three miles off Point Pleasant on the New Jersey Coast at Buoy A, Lat. 40 deg. 04' 50' N; Long. 73 deg. 31' 45' W, to a point in the vicinity of Ambrose Light Vessel, at Buoy I, Lat. 40 deg. 26' 46' N; Long. 73 deg. 51' 51' W.
(3) At the time of the collision the YMS-12 was part of a mine sweeping formation and was proceeding seaward with her mine sweeping gear streamed and displaying three all around green lights designating mine sweeping vessels towing mine sweeps in accordance with notice to mariners issued July 1, 1942, in addition to here regular running lights. Said mine sweeping formation consisted of three mine sweepers which were engaged in mine sweeping in said buoyed channel. The USS YMS-105 was the guide ship of the formation, which was proceeding on the easterly side of the swept channel, keeping the mid-channel buoys on the port hand. The YMS-12 was stationed several hundred yards on the starboard beam of the YMS-105 and the third vessel in the formation, the USS AMC-95, was echelon to the right of the guide ship, in a position approximately a half mile astern of and midway between the YMS-105 and the YMS-12.
(4) At the time of the collision, S.S. John Worthington was outbound from New York in ballast and was proceeding to sea in convoy, displaying regular and proper lights. The weather was clear, visibility good.
(5) The aforesaid collision was contributed to both by fault in the navigation of S.S. John Worthington and fault in the navigation of the United States Ship YMS-12, consisting of failure on the part of both vessels to comply with the applicable rules for the prevention of collisions and the requirements of good seamanship under the circumstances.
(6) S.S. John Worthington did not sustain any physical damage but the YMS-12 did sustain damage as a result of the collision.
(7) At the time of the collision S.S. John Worthington was operating pursuant to a time charter party between the United States of America and Standard Oil Company of New Jersey, duly executed and in force at all material times. Said time charter party contained among others, the following provisions:
'Clause 20. Unless otherwise mutually arranged, at all times during the currency of this Charter the Charterer shall provide and pay for or assume: (i) insurance on the Vessel, under the terms and conditions of the full form of standard hull war risk policy of the War Shipping Administration, which shall include malicious damage, sabotage, strikes, riots and civil commotion, insured for and valued at the amount set forth in Part I which insurance shall be made payable to the persons entitled thereto;
'Except as to risks or liabilities assumed, insured or indemnified against by the Charterer pursuant to this Charter, unless otherwise agreed, the Owner shall assume or insure against all other risks or liabilities of whatever nature including without limitation those of a Marine Hull and P. and I. nature and such Hull and P. and I. coverage shall also protect the interests of the Charterer to the extent of the liability it would have if it were the owner of the Vessel.'
(8) At the time of the collision Standard Oil Company of New Jersey was insured by the United States of America against specified war risks with respect to S.S. John Worthington and a binder of insurance was issued by the United States of America to Standard Oil Company of New Jersey and was in force at the time of the collision. Said binder of insurance contained, among others, the following provisions:
War Shipping Administration
Division of Wartime Insurance
The War Shipping Administration hereby insures against War Risks Only the risks as listed in schedule below: (SCHEDULE OMITTED)
DWT 12475 Speed 10.8 Knots Date Built
3. This binder shall be subject to all the rules, regulations, conditions and policy forms as prescribed by the War Shipping Administration. * * * '
(9) Endorsement No. 1 to said war risk binder issued by the United States of America contained, among others, the following provisions: '2. This insurance shall be subject to all the rules, regulations, conditions and policy forms as prescribed by the War Shipping Administration in force at the time of issuance of the binder and shall be subject to the term of the requisition charter party relative to this vessel accepted by the assured and any modifications or amendments thereto.'
(10) The full form of standard marine and war risk policy of War Shipping Administration, including the war risk clauses annexed thereto, referred to in said binder and charter, in effect at all material times, contained, among others, the following provisions:
'Unless physically deleted by the Underwriters, the following warranty shall be paramount and shall supersede and nullify any contrary provision of the policy:
F.C. & S. Clause. Notwithstanding anything to the contrary contained in the Policy, this insurance is warranted free from any claim for loss, damage, or expense caused by or resulting from capture, seizure arrest, restraint, or detainment, or the consequences thereof or of any attempt thereat, or any taking of the Vessel, by requisition or otherwise, whether in time of peace or war and whether lawful or otherwise: also from all consequences of hostilities or warlike operations (whether there be a declaration of war or not), piracy, civil war, revolution, rebellion, or insurrection, or civil strife arising therefrom.
If war risks are hereafter insured by endorsement on the Policy, such endorsement shall supersede the above warranty only to the extent that their terms are inconsistent and only ...