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FAISON v. UNITED STATES

May 26, 1950

FAISON et al.
v.
UNITED STATES et al. (two cases)



The opinion of the court was delivered by: LEIBELL

Findings of Fact

1. The libelants, Henry Faison and Floy Faison, as parents of a deceased seaman, and Mertie Faison, as a sister of the deceased seaman, filed a libel (A142-114) on April 12, 1946, against the United States of America to recover, as beneficiaries under a Second Seaman's War Risk Life Insurance Policy, for the loss of life of the seaman, Daniel E. Faison. Jurisdiction thereof was founded on Section 1128d of Title 46 U.S.C.A.

 2. On April 11, 1950, at the trial of this action the claim of the plaintiff, Mertie Faison, was discontinued.

 3. Another libel (A142-134) by Henry Faison, as Administrator of the Estate of Daniel E. Faison against the United States of America as owner of the vessel, S. S. B. F. Shaw, was filed April 15, 1946 to recover for the wrongful death of the deceased seaman. That libel has been settled on the trial of the action for the sum of $ 146.25 on condition that this sum would be deducted from the amount of any recovery on the policy of insurance in A142-114.

 4. On April 15, 1944 the Steamship B. F. Shaw was owned and operated by the United States of America.

 5. On April 15, 1944 Daniel E. Faison was serving as a member of the crew of the S. S. B. F. Shaw while the vessel was in port in Italy and was given shore leave at Castellammare Di Stabia, Italy.

 6. On April 15, 1944 Daniel E. Faison was insured under a Second Seaman's War Risk Insurance Policy against loss of life directly and proximately caused by risks of war and warlike operations in the amount of $ 5,000.00.

 7. Article 3 of the policy of insurance provided:

 'Risks and Perils. The insurance is for loss of life * * * 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, acts of kings, princes and peoples in the prosecution of hostilities or in the application of sanctions under the 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, scuttling to prevent capture, aerial bombardment, or, attempts at, or measures taken in defense of, all of the foregoing acts, floating or stationary mines, torpedoes, whether derelict or not, collision caused by failure, in compliance with wartime regulations, of said vessel or any vessel with which she is in collision, to show the usual full peacetime navigation or anchorage lights, stranding caused by the absence of lights, buoys, or similar peacetime aids to navigation consequent upon wartime regulations, stranding caused by the failure of said vessel to employ a pilot in waters where a pilot would ordinarily be employed in peacetime, but in which the employment of a pilot is dispensed with in compliance with military, naval or other governmental orders, or with a view to avoiding imminent enemy attack (for the purposes of the foregoing, the failure to show lights, the absence of lights, buoys, etc., and the failure to employ a pilot shall be presumed to be the cause of the collision or stranding unless the contrary be proved, and stranding shall include sinking consequent upon stranding or contact with any part of the land), collision with another vessel in the same convoy or collision with any military or naval personnel and designed to be employed primarily in armed combat service, stranding, collision or contact to any external substance (including ice, but excluding water), as a result of deliberately placing the vessel in jeopardy, in compliance with military, naval or other governmental orders in order to avoid imminent enemy attack, or as an act or measure of war taken in the actual process of embarking or disembarking troops or loading or unloading material of war.

 'The fact that a vessel, or any vessel with which such vessel is in collision, is carrying troops or military or other supplies, or is proceeding to or from a war base, or is manned or operated by military or naval personnel, shall not alone be sufficient to include in this policy any claim which is not included by the foregoing terms of this article.'

 8. The insured, Daniel E. Faison, did not designate any beneficiary of said policy of insurance which provided in Article 7:

 'Beneficiaries of Insurance for Loss of Life.

 '(3) If the insured fails to designate a beneficiary or if the beneficiary or beneficiaries, whether primary or contingent, die before the insurance or any portion thereof shall be paid, the insurance will, subject to the provisions of paragraph B hereof, be paid to the beneficiary or beneficiaries within the following classes and in the order named:

 '(a) If the insured shall be survived by a lawful widow or widower but without any child of him or her surviving, 100 ...


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