Before BIGGS and KALODNER, Circuit Judges, and McGRANERY, District Judge.
Appellee brought an action in admiralty to recover war risk insurance for the death of her son, Theodore W. Ellse, a member of the crew of the S.S. "Maiden Creek," a vessel documented under the laws of the United States.
The deceased seaman was employed by the Waterman Steamship Corporation. The latter purchased from the War Shipping Administration Insurance Division*fn1 a policy insuring the crew of the "Maiden Creek" against loss of life, bodily injury, etc., "directly occasioned by capture, seizure, destruction by men of war, piracy, takings at sea, arrests, restraints and detainments and other warlike operations, * * * and acts of kings, princes and peoples in prosecution of hostilities. * * *"
The question for determination is: was the loss of Ellse's life due to a risk of was or warlike operations and thus within the scope of the policy sued upon, or was it the consequence of a marine peril which would bar recovery?
Preliminarily it must be kept in mind that an appeal in admiralty partakes of a trial de novo and serves to vacate the decree of the district court; that the findings of the latter when supported by competent evidence are entitled to great weight and that such findings should, therefore, not be set aside on appeal except upon a showing that they are clearly wrong. The S.C.L. No. 9, 3 Cir., 114 F.2d 964, 966. The basis of the latter rule is "that the trial judge has a peculiar opportunity for appraising the worth of oral testimony by observing the witness' demeanor which the cold print of a record fails to disclose." The S.C.L. No. 9, supra. The rule is modified where the findings of the district court are based wholly on depositions. Matson Nav. Co. v. Pope & Talbot, Inc., 9 Cir., 149 F.2d 295.
In the instant case, the District Court's findings were premised solely on depositions submitted and not on the testimony of the single witness who appeared before it. The witness who appeared merely testified as to the radio log of the "Maiden Creek."
At this point it must be stated that the appellee bases the right to recovery on two theories. The first theory is that the "Maiden Creek" was "ordered" into a convoy and was thus under restraint" when the loss occurred; the second theory is that the S.S. "Exhibitor" which responded to an SOS call of the "Maiden Creek" "abandoned" her because of a fear of submarines and that the latter action came within the category of "other warlike operations" as stated in the policy.
It may be noted parenthetically that originally, in the libel filed, the second theory alone was relied on by the appellee as sustaining the right to recovery.
The District Court, however, did not premise allowance of recovery on the score latterly mentioned but rested its finding in favor of the appellee on the ground that the proximate cause of the loss was "the 'restraint' imposed by the military authorities" upon the "Maiden Creek" in ordering her into a convoy and exercising "complete control over" her as will be subsequently discussed.
The appellant contends that there is no liability; that none of the events which occurred was a risk of war or a warlike operation, within the terms of the war risk policy. It asserts that the loss was solely the consequence of a marine peril.
The "Maiden Creek," carrying a cargo of gasoline, left New York in a convoy on October 11, 1942. It ultimately arrived in Greenland (date undisclosed) and discharged its cargo, after which it proceeded to Botwood, Newfoundland, where it took on a cargo of ore concentrates and then proceeded to St. Johns, Newfoundland, arriving there December 10, 1942. It left St. Johns two days or so later in a convoy bound for New York.
Severe storms were encountered and the "Maiden Creek" shortly lost its convoy. The vessel labored in the heavy seas for several days and when its fuel supply began to run low changed its course from its intended destination and headed for Halifax, Nova Scotia. It arrived at Halifax "in distressed condition and down by the head." The "Maiden Creek" remained in Halifax for four or five days where it took on oil and the water was pumped out. At some time during its stay in Halifax the Master and Henry S. Connolly, the radio operator of the "Maiden Creek," separately attended convoy conferences with Canadian Naval authorities. Connolly in his deposition stated that he did not know what took place at the conference attended by the Master. He subsequently saw "written orders with reference to sailing in the Master's quarters" but was not shown the instructions that pertained to sailing, but only the instructions that pertained to the operation of the signal equipment.
The "Maiden Creek" left Halifax in convoy on December 27, 1942, bound for New York. It was at that time "down by the head." The third day out of Halifax the convoy ran into a gale and the "Maiden Creek" had difficulty maintaining her speed and position and became unable to keep up with the convoy. Since the vessel was "falling behind all the time" and was "going down by the head," the Master decided to leave the convoy. Thereafter, the Captain decided on his own volition to change course so he would have the benefit of running with the seas in the attempt to run up the coast of Long Island and in the hope of being able to get into Long Island Sound.
At the time the vessel changed course - about 11 o'clock A.M. December 31, 1942 - it was five to eight miles astern of the convoy. Immediately following the change of course the speed of the "Maiden Creek" came up to 10 knots an hour; the seas were heavy, the weather "real bad." About 2 o'clock the Master gave instructions to the radio operator to prepare a coded message to the Coast Guard Station on Long Island describing the vessel's difficulties, giving its course, speed, position, and asking for help. The message was sent at 3 o'clock.
A plain language SOS was sent out shortly before 5 o'clock and the S.S. "Exhibitor" arrived at the scene almost immediately. It came virtually alongside the "Maiden Creek" and advised her by blinker signal that she was prepared to take off her crew. At the time, some members of the crew of the "Maiden Creek," equipped with life preservers, were standing by the lifeboats; other crew members were on the bridge. The lifeboats "were all in their chocks" where they were usually carried, but they were not readied for use.
The "Exhibitor" inquired of the "Maiden Creek" by blinker signal if she wanted to abandon ship and received conflicting replies. The "Exhibitor" then pumped oil overboard to smooth the seas so as to facilitate abandoning operations.
However, the "Maiden Creek" kept going at the rate of four or five knots an hour and the "Exhibitor" "couldn't figure out what they were trying to do." The "Exhibitor" then signalled the "Maiden Creek" if they were going to abandon they would have to abandon before dark." Subsequently the "Maiden Creek" sent out a message cancelling its SOS. That was about 5:24. About a half hour later the "Exhibitor," after circling around twice, and seeing no evidence of any attempt or intention on the part of the distressed ship to abandon, left the scene. It did not signal the distressed ship that it was going to do so. At the time the "Exhibitor" left the "Maiden Creek" the latter was proceeding toward Block Island about 100 miles away at about four or five knots an hour. As the "Exhibitor" was steaming away she received a message from the "Maiden Creek" asking her to leave an oil slick to Block Island. She did not do so.
After the "Exhibitor" sailed away - she was then about three or four miles off and the sun was about on the horizon - the Master of the "Maiden Creek" gave orders to abandon. The seacocks were smashed to let the water in so that the vessel would sink and would not be a hazard to navigation. About five minutes later two lifeboats were lowered, 25 men in one and 31 in the other. The boat with Ellse was lost, the other lifeboat was subsequently rescued. The vessel itself sank a number of hours later.
Connolly, the radio operator of the "Maiden Creek," supplied the details as to what occurred after the "Exhibitor" sailed away. He stated that before the crew took to the lifeboats he called the Master's attention to the fact that the "Exhibitor" was leaving but that the Master "said no," that she was "just circling around." Connolly suggested that he go back to the radio room and send a new SOS but that the Master refused to give him permission to do so.
Connolly made the further statement that after the SOS was cancelled and prior to the departure of the "Exhibitor", the Master of the "Maiden Creek" had stated that he "was going to let some of the crew members leave the ship and that he wanted to keep as many of the men as were willing to stay and attempt to run the ship into the Coast," and that he asked him to stay. He said that prior to the cancellation of the SOS an "abandon ship" order had been given by the Master, but that it was subsequently rescinded and the crew went back to quarters.
The above rather detailed recital as to the occurrences on December 31, 1942 is necessitated by the fact that the appellee, as stated at the outset, urges that the departure of the "Exhibitor" under all the circumstances came within the "other warlike operations" provision of the war risk policy so as to create a liability for the loss.
In support of her contention, the appellee asserts that "were it not for the war, the 'Exhibitor' would have remained as long as necessary after dark to receive the survivors" and that "this fact alone identifies the situation as a risk of war or ...