The opinion of the court was delivered by: BYERS
The present problem is to decide whether a peptic duodenal ulcer which became manifest in libellant Rogel during the second of two voyages which he made as a member of the crew of a merchant ship (Benjamin Bonneville, owned by the United States and operated by Coastwise (Pacific Far East) Line as General Agent), out of San Francisco, May 26, 1943, to the South Pacific, entitles him to recover under the disability aspect of War Shipping Administration.
The issuance of the policy and its terms are not in dispute; the presently material provisions are: ' * * * disability (including dismemberment and loss of function), * * * from the perils and causes hereinafter stated, * * *
'Schedule 2. Disability, Including Dismemberment and Loss of Function.
'For disability proximately caused by the risks and perils insured against herein, and which arises within ninety days from the date of the happening of such risks and perils, * * * .'
'Stipulations and Conditions.
'Article 3. Risks and Perils. The insurance is for * * * disability (including dismemberment and loss of function), * * * of the insured, directly and proximately caused by risks of war and warlike operations, including capture, seizure, destruction by men-of-war, sabotage, piracy, takings at sea, arrests, restraints and detainments, * * * , scuttling to prevent capture, aerial bombardment, or, attempts at, or measures taken in defense of, all of the foregoing acts, floating 8r stationary mines, torpedoes, * * * collision * * * stranding * * * .'
'Article 12. Disability and Dismemberment.
'A. Disability. 'Disability' as that term is used in this Policy means incapacity because of injury proximately caused by the risks insured against herein which necessarily and continuously prevents the insured from performing any and every kind of duty pertaining to his occupation at the time of injury.
'D. Disability shall not include incapacity directly resulting from bodily * * * infirmity or disease of any kind. * * * .'
'Article 21. Notice of Loss and Claim. Notice of disability * * * , and claim for payment therefor under this Policy shall be given to the Administrator within ninety days after the happening of the event causing the disability * * * , or ninety days after the insured returns to the continental United States. * * *
'Article 22. Limitation of Suit. No action or suit upon this Policy shall be valid unless commenced within two years from the time the insurance, benefits or allowances conferred by this Policy are payable * * * .'
Note: As to this limitation, no question arises; Rogel arrived back in the United States on March 25, 1944, and signed off on the 31st. This libel was filed August 30, 1945.)
'Article 24. 'Administrator' Defined. Whatever the term 'Administrator' is used in this Policy that term shall include the person who is the Administrator of the War Shipping Administration at the time of the issuance of this Policy and his successor or successors in office, and such other person or persons employed by the Administrator, the War Shipping Administration, or the United States of America, in the War Shipping Administration to whom the Administrator may delegate duties or powers for the administration of the insurance. * * * .'
It seems necessary to state briefly how the obligation to provide insurance arose, and how the duty was performed, in order to pass upon the validity of the defense pleaded by amendment introduced at the trial concerning Rogel's ...