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FLOTA MERCANTE DOMINICANA v. AMERICAN MFRS. MUT. I

June 30, 1967

FLOTA MERCANTE DOMINICANA, C. POR A., Owner of the S/S SANTO DOMINGO, Plaintiff,
v.
AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY, Defendant


Frankel, District Judge.


The opinion of the court was delivered by: FRANKEL

MEMORANDUM

FRANKEL, District Judge.

 This is an action on a policy of warrisk insurance to recover for the asserted constructive total loss of plaintiff's vessel the S/S Santo Domingo. The case is ready for partial or complete disposition on motions by both sides for summary judgment. The key issue now joined may be stated simply without peeling off the "layer upon layer of warranties and riders," Calmar Steamship Corp. v. Scott, 345 U.S. 427, 430, 73 S. Ct. 739, 741, 97 L. Ed. 1125 (1953), in which nautical insurers choose to enshroud this subject. That question is whether, on facts which are not in dispute, the claimed loss was outside the policy's coverage because of an exclusionary warranty reading as follows:

 
"Warranted free from any claim arising from capture, seizure, arrest, restraint, detainment, preemption, confiscation or requisition by the Government of the United States or of the country in which the vessel is owned or registered or of the country in which any such right of requisition is vested."

 Urging that the question must be answered affirmatively, defendant has moved for summary judgment dismissing the complaint. Plaintiff, recognizing other hurdles to a complete recovery, moves to strike certain defenses and for partial summary judgment confirming its contrary view of the quoted warranty and determining some other questions to be noticed below.

 Since the court has concluded that plaintiff is correct on the main question presented, it is appropriate as well as convenient to proceed from defendant's summary of the undisputed facts. As formulated by defendant in its Statement pursuant to our local General Rule 9(g), they are as follows:

 
"1. The contract of war-risk insurance of S/S SANTO DOMINGO issued by defendant to plaintiff, Policy OE 9865, contained a clause excluding from coverage claims arising from certain acts of the United States Government, to wit: capture, seizure, arrest, restraint, detainment, preemption, confiscation or requisition.
 
"2. The master of the S/S SANTO DOMINGO, despite hostilities then occurring in the city of Santo Domingo, Dominican Republic, entered that port on April 29, 1965, moored his vessel to a harbor pier and left the ship, leaving the remainder of the crew or a part thereof on board.
 
"3. Subsequently, police forces loyal to the Dominican Government boarded and seized the vessel. After they left armed rebels boarded and, on May 4, 1965, directed small arms and automatic weapon fire upon an element of the 82nd Airborne Division, U.S. Army. Small arms fire from the U.S. troops failed to halt the rebel fire.
 
"4. At that time the 82nd Airborne Division, U.S. Army, and other U.S. armed forces, occupied parts of the city of Santo Domingo pursuant to carrying out orders of the President of the United States to protect U.S. Nationals.
 
"5. Lt. Col. George E. Pickett, IV, U.S. Army, Battalion Commander of the troops under fire from the ship received orders through regular official channels from the Commanding General of all U.S. Military Forces in Santo Domingo, to fire upon the ship with a 106 mm recoilless rifle.
 
"6. In compliance with these orders one round of 106 mm explosive projectile was fired into the bridge structure on May 4, 1965, starting a fire which continued to burn for at least two days and gutted the vessel.
 
"7. On May 5, 1965, firing from the vicinity of the S/S SANTO DOMINGO on U.S. forces was again observed and a second 106 mm projectile was aimed at and hit a point slightly above the water line.
 
"8. An additional reason for the 106 mm fire was that Lt. Col. George E. Pickett, IV, U.S. Army, and his Brigade Commander, Col. Robert F. Bayard, U.S. Army, both observing the vessel at that time, saw armed rebels removing from the ship boxes having the size and shape ...

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