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Daranowich v. Land

decided: January 15, 1951.


Author: Swan

Before L. HAND, Chief Judge, and SWAN and FRANK, Circuit Judges.

SWAN, Circuit Judge.

This is a suit upon an insurance policy issued by the War Shipping Administration insuring the life of Vladimir Trushko who was a member of the crew of the S.S. Africanda, a merchant vessel owned by the United States. The issue below and on appeal is whether Trushko's death was within the coverage of the policy.

While proceeding in a convoy from Scotland to Murmansk, the Africanda was sunk by enemy torpedoes on September 13, 1942. Trushko jumped into the sea and was taken aboard a life boat, from which he was transferred first to a minesweeper, then to a coastal "rescue ship," and finally to the British destroyer Milne. The Milne returned to Iceland, where she remained for a few hours, and then set out for Scotland. On September 22, 1942 shortly after leaving Iceland, a general alarm was sounded when Trushko and a British sailor were washed overboard. The Milne stood by to search for them but they were not seen and she proceeded on her voyage. On these facts the district court held that Trushko's death was not within the coverage of the insurance policy.

Clause A of the policy insures against loss of life "directly occasioned by * * * warlike operations," with a proviso "That in case of destruction or abandonment of said vessel from the causes specified in this Clause A, said master, officers, and crew shall continue to be insured against the risks herein specified until they have reached a safe vessel or some other place of safety, whereupon insurance hereunder shall cease except to the extent of the insurance provided in Clause B hereunder."

Clause B provides

"In the event of * * * the destruction or abandonment of the vessel resulting from * * * warlike operations * * * the insurance herein provided shall be extended."

"During the period commencing with * * * the arrival upon a safe vessel or at some other place of safety * * * and terminating upon arrival of the seaman at a continental United States port.

"Against loss of life and bodily injury to the master, officers, and crew directly occasioned by warlike operations * * *"

The district judge expressed the opinion that the minesweeper, coastal vessel and British destroyer were seaworthy and "safe" vessels within the meaning of the policy. The appellant contends that the words "safe vessel" should not be interpreted to mean a seaworthy vessel but rather a vessel in "safe" waters, i.e. removed from the war-risks against which the policy was intended to afford protection; and that under such interpretation the Milne was not a "safe vessel" because her voyage from Iceland to Scotland was through a dangerous war zone. It would seem that the more liberal interpretation for which the appellant contends would best carry out the purposes of the policy, but decision of the question is not essential in the present case. If Trushko had not arrived upon a safe vessel, Clause A of the policy still covered; if he had, the coverage of Clause B was not to terminate until his arrival at a continental United States port. Under either clause the decisive issue is whether his death was "directly occasioned by warlike operations."

In United States v. Standard Oil Co., 2 Cir., 178 F.2d 488, affirmed 340 U.S. 54, 71 S. Ct. 135, where the question was whether marine or war risk underwriters should bear a loss, we stated "the American rule to be that under a policy which expressly insures against war risks or 'all consequences of hostilities or warlike operations,' the coverage extends only to perils due directly to some hostile action, military maneuver, or operational war danger, and does not include the aggravation or increase of a maritime risk because of war operations". 178 F.2d at page 493. The appellant urges that the policy in suit should be more liberally construed in favor of the seaman, as stated in Admiral Land's report dated October 17, 1945.*fn1 Granting that such policies should be gently treated, nevertheless they still remain marine insurance and the stipulations they contain were intended to limit the Government's liability. Liability is not assumed for every death however caused, even though it would not have happened if the seaman had not been a member of the crew. Thus in Reinold v. United States, 2 Cir., 167 F.2d 556, certiorari denied 335 U.S. 824, 69 S. Ct. 48, 93 L. Ed. 378, we held that the death of an officer killed by a drunken member of the gun crew was not within the coverage of a policy like the one in suit. See also Crist v. United States War Shipping Administration, 3 Cir., 163 F.2d 145, certiorari denied 332 U.S. 852, 68 S. Ct. 352, 92 L. Ed. 422. "Directly occasioned" means more than in any way connected with conditions bringing about death. Even should we hold that the Milne was engaged in a warlike operation while proceeding from Iceland to Scotland through waters made hazardous by submarines, nevertheless the policy would not have covered the loss, if Trushko had died from a blow from some part of the vessel that had been carried away in heavy weather. In such event the warlike operation would not have been the "proximate cause" of his death, i.e. would not have "directly occasioned" it. Nor was it the proximate cause of his being swept overboard.

The appellant particularly relies upon the interpretative resolution of March 22, 1944 adopted by the Maritime War Emergency Board. This resolution states that the Board "finds the following administrative policy will carry out the intent of the Board in adopting its aforementioned Decisions, to wit: allowance of claims for loss of life and bodily injury under the aforementioned insurance policies issued by War Shipping Administration pursuant to the aforementioned Decisions of this Board, where full evidence of the cause of the casualty insured against is not available or where evidence of the cause of the casualty is reasonably open to conflicting inferences, if in the determination of the Administrator the operations of war have substantially contributed to the casualty and payment is required to make equitable provision for the seaman or his dependents." We find no evidence in the record to bring the case within this resolution. The appellant argues that the insured's risk of being washed overboard was a war risk because it was a peril created by the high speed of the British destroyer in a dangerous war zone. A witness who was aboard the Milne testified that the sea was very rough.In response to a question by the court as to the height of the waves, he replied: "They were going over the ship sometimes because he had speed." We see nothing in this statement to support an inference that the destroyer was going at a higher speed than she would have been making in such weather if there had been no war. The appellant argues that the Milne was proceeding at high speed, that such speed was put on the vessel because she was in dangerous waters, and that the added speed caused her decks to be awash and this caused the deceased to have been washed overboard. But there is absolutely no proof of any such chain of events.

If the resolution means that the burden is on the insurer to prove that the operations of war have not contributed to the casualty, it is true that no such proof was made by the insurer. Indeed, there would be few cases where the insurer could so prove if the insured was killed within the war area. We do not read the resolution as reversing the ordinary burden of proof; nor, if it does go so far, would it be legally binding on the courts. It is only an intradepartmental directive.The plaintiff failed ...

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