The opinion of the court was delivered by: MURPHY
This suit having been tried by the court the following are made.
1. At all times mentioned herein libelant was a corporation organized under the laws of Delaware with its principal place of business within this district, and was owner of the American Steamship Esso Charleston.
2. At all such times respondent, through the War Shipping Administration, employed and operated The Esso Charleston under a requisition time charter, dated as of April 20, 1942, under which the charterer undertook to 'provide and pay for or assume' insurance of 'the full form of standard hull war risk policy of the War Shipping Administration which shall include malicious damages, sabotage, strikes, riots and civil commotion, * * *.'
3. In accordance with said charter, War Risks Binder No. R. C. 755, dated September 9, 1942, was executed on behalf of respondent insuring the hull of The Esso Charleston against war risks only, subject by endorsement to 'rules, regulations, conditions and policy forms as prescribed by the War Shipping Administration in force at the time of issuance of the binder * * *.' The full form of such war risk insurance policy in force at such time contained a war risk clause providing in part:
'It is agreed that this insurance covers only those risks which would be covered by the attached policy (including the Collision Clause) in the absence of the F. C. & S. warranty contained therein but which are excluded by that warranty.
'This insurance is also subject, however, to the following warranties and additional clauses:
'The Adventures and Perils Clause shall be construed as including the risks of piracy, civil war, revolution, rebellion or insurrection, or civil strife arising therefrom, floating and/or stationary mines and/or torpedoes whether derelict or not, and/or military or naval aircraft and/or other engines of war including missiles from the land, and warlike operations and the enforcement of sanctions by members of the League of Nations, whether before or after declaration of war and whether by a belligerent or otherwise; but excluding arrest, restraint, or detainment under customs or quarantine regulations, and similar arrests, restraints, or detainments not arising from actual or impending hostilities or sanctions.'
4. On the afternoon of December 31, 1942, The Esso Charleston, after a voyage in convoy from New York with cargo of admiralty fuel oil for use of Allied Expeditionary Forces in North Africa, came in contact and collided with another vessel of the same convoy, The West Madaket, loaded with cargo for use of the same forces, off Casablanca, Morocco, both vessels sustaining damage.
5. In this court both a libel (Docket No. A. 126-378) by the Waterman Steamship Corporation, owner of The West Madaket, to which answer was interposed and cross-libel (Docket No. A. 127-137) by the Standard Oil Company of New Jersey, were filed claiming damage as a result of the collision. The respondent herein was not a party to these suits in which the twelve depositions taken by both sides constitute evidence in this case by stipulation of respondent. These suits were settled on the basis of mutual fault, Standard Oil Company of New Jersey agreeing to pay 60 per cent of provable damage with interest and Waterman Steamship Corporation 40 per cent with interest.
6. The collision took place when both The Esso Charleston and The West Madaket proceeded to enter the harbor of Casablanca through an opening some two hundred feet wide in an anti-submarine net maintained and regulated by the United States Navy through orders issued to incoming and outgoing vessels. The starboard side of The Esso Charleston came in contact with the port side of The West Madaket in the vicinity of the net opening, after the latter vessel overtook the former one. Prior to the collision The West Madaket had sounded four short blasts and The Esso Charleston had turned hard left. After the collision, The West Madaket continued through the net and The Esso Charleston reversed, turned about and went back to sea to anchor.
7. The proximate cause of the collision and resulting damage was navigational fault on the part of both vessels.
8. The 'consequences of hostilities or warlike operations' was not the proximate ...