Body Lost at Sea
A boy fishing in the ocean off Boston was drowned. The body was not found; there were no witnesses to the actual drowning. Now, after a month, the family presumes the boy dead and wants to hold a funeral or memorial service. May such a service be held? When does the family begin its observance of the seven days of mourning? (From Rabbi Earl Grollman, Belmont, Massachusetts)
Basically, the law requires the full religious ritual of mourning for a person drowned in the sea. This law is found clearly in the Gaonic compilation (Semahot II, 10), where it is clearly stated that whoever falls into the sea or is swept away by a river, all mourning rites are to be observed for him, and that the period of mourning should begin when the family has finally given up hope of recovering the body. That moment of definite hopelessness is equivalent to the date of burial. So there is no doubt that the first answer in the case mentioned is that a funeral service should be held and that the family should begin counting from then the days of mourning that they will observe.
However, the law, apparently so clear, is complicated by another problem that arouses a great deal of debate all through the legal codes. If a husband thus disappears, is his wife free to remarry? In all questions of permitting a wife to remarry following the disappearance of her husband, the law is very strict, for suppose she does remarry and has children and then her original husband, thought dead, reappears; the legitimacy of the children is brought into question. Therefore, permitting a woman to remarry is one of the strictest matters in Jewish law.
The law makes a distinction in the case of drowning between two types of waters where a man is said to have been drowned: an unlimited body of water, such as an ocean, and a limited body of water, such as a lake whose borders can be seen. If it is a limited body of water, it can be known (and seen) whether the man actually was drowned or really emerged. But if it is an unlimited body of water whose boundaries (all four of them) can not be seen, the man allegedly drowned may have climbed up out of sight on some island and be still alive. The law is that if a man is allegedly drowned in limited waters, his wife is free to marry, but if alleged to be drowned in unlimited waters, she is not free to remarry unless strong testimony is brought confirming at least the overwhelming probability of his death. This law is based upon the Mishnah (m. Yeb. 16 : 4) and the Talmud (b. Yeb. 121a).
There is thus an apparent contradiction in the law. The law cited first (from Semahot) says that full mourning rites are to be conducted for someone drowned in the sea; but if a woman whose husband drowned in the sea were directed to conduct full mourning rites by the rabbi, it would be equivalent to declaring her husband dead and she would feel free to remarry. Therefore Joseph Caro tries to ex plain away the earlier statement; and the law comes to the conclusion, stated in the Shulchan Aruch (Yore Deah 375 : 7), that only if a man drowns in limited waters may his wife mourn for him. But if he is said to have been drowned in unlimited waters, she may not mourn for him. This law regarding mourning is developed in two places: by Joseph Caro, in his “Beth Josef” to Tur, Yore Deah 375, and by Sabbathai Cohen (Shach to the Shulchan Aruch to Tur, Yore Deah 375). There is some later discussion as to whether certain aspects of mourning (such as wearing black clothes) may not be permitted to a woman even though she cannot be free for remarriage. But in general the law states firmly that the woman may not observe any mourning at all. Thus, Gershon Ashkenazi (seventeenth century; “Avodas Ha-Gershuni” # 18) makes it a fixed rule that in all cases where there is not enough evidence for the woman to be remarried, no Kaddish may be said.
But what if the drowned person was a bachelor? Then there is no question of mourning rites being a signal for a woman to remarry. Should not, then, mourning be permitted for an unmarried boy alleged to be drowned? Many scholars say No, in order by this further restriction to protect the other law that a woman may not mourn. But the tendency of the law is toward liberality in this regard. The first to be clearly in favor of permitting mourning for a drowned unmarried boy was Jacob Reischer, of Metz (eighteenth century), in his “Shevus Ya’acov” I, 102. Then the great Moses Sofer, of Pressburg (in his Responsum #344), using the responsum of Jacob Reischer, says definitely that mourning should be conducted for an unmarried man, even one who has drowned in unlimited waters.
Finally, Jacob Ettlinger, of Altona (in his “Binyan Zion” #121) decides on the basis of earlier authorities that such mourning rites should be conducted.
Therefore, in the case before us, full funeral services should be held now that the family has abandoned hope of recovering the boy’s body.
What sort of services should be conducted and what sort of mourning period should be followed, since there is no body? The basic law (which is in Semahot II, 10) says distinctly that if a person is drowned in the sea, we do not deprive him of any of the regular ritual.
Therefore, have the regular service. Have the usual amount of mourning to which the family is accustomed in such cases, and also a tombstone. The mourning should begin from the moment they have given up hope, or, to set the more exact time, from the moment of the funeral service. If there were a body, the family would count from time of the burial. Since there is no burial, we count from the funeral service.