Funeral Services and Mourning for Those Lost at Sea
A man’s plane was lost at sea and hope has been given up for his recovery. When may funeral service and memorial service be held, and when does mourning begin for the family? (From Rabbi Meyer Miller, Durban, South Africa)
The tragic question which you ask is unfortunately not without ample precedent in Jewish law. It happened often in past generations that Jews were slain on the road and drowned in the rivers, with no definite proof available as to the time of death or even as to the certainty of death. Therefore, there is a great deal of legal material involved in this matter, and it is better to simplify it and follow the law chronologically.
The Gaonic compilation, Semachot (2 : 10), states definitely that if a man falls into the sea or is swept away by a river, all mourning rites are to be observed, and the period of mourning should begin when the family has finally given up hope of recovering the body. This moment of definite hopelessness of recovering the body, “mi-she-nishyoashu, ” is to be considered equivalent to the date of burial for all purposes of Kaddish and yahrzeit. This principle of the moment of hopelessness being the crucial point becomes basic in the law.
Isaac Or Zorua was asked by a son whose father was drowned in the Rhine and whose body was not recovered, whether he should say Kaddish for his father and when he should begin, and Isaac Or Zorua said to him that he should begin at once to say Kaddish, because Kaddish begins from the moment that “they have despaired” of recovering the body.
The Shulchan Aruch uses this same term, namely, the time of despair of recovering the body, as legally equivalent to the date of burial. It gives the case of a person killed by a tyrannical government, whose body is not obtainable for burial (Yore Deah 375 : 5), and Joseph Caro asks: When do they begin to mourn for him and to count shiva and the thirty days of mourning? and he answers: When they give up hope of getting the body for burial. More specifically, Yore Deah 375 : 7 reads as follows: “One who is drowned in waters that have a limit [for example, a lake in which you can see definitely that he did not emerge] they count from the time when they give up hope of finding him; or if there is a definite report that bandits slew him, they count from the time that they gave up hope of finding him.”
Of course, the ocean is considered “waters that have no limit” and, therefore, according to the Talmudic law, there is a possibility that he may be cast up on an island and is alive and, therefore, the law discourages formal mourning lest that be taken as permission to his wife to be remarried. To what extent this law concerning the “unlimited” ocean applies today we must now discuss, because if it were taken strictly, none of the thousands of people drowned at sea would ever be considered officially dead. This, of course, is not the case because the older concept of water without limit has gradually changed. The Orthodox opinions have been changing. You will notice at the end of the large “Pis-che Teshuva” section, the author (Z’Vi Eisenstadt) lines up a whole sequence of authorities who say that even if the wife cannot be free to remarry on the basis of the evidence, nevertheless Kaddish should be said and mourning followed, even in waters that have no limit. The authorities quoted there are of the first rank. While the general law is that the wife may not mourn on the ground that her husband may yet be found, there is a contrary opinion from Hai and Sherira Gaon cited by the Tur that even if there is no clear proof that he is dead but there is a report, you must mourn for him. True, this is not the prevailing opinion, but these two Gaonim are sufficient for us to rely on in a case like this.
In modern times, the concept of “water without limit,” which carries the presumption that the husband might still be alive, has changed. You will find, for example, that certain Orthodox scholars will permit a wife to be free, that is to say, they will accept the presumption of death even in such waters, because nowadays, with telegrams and cables and wireless, there is hardly any place on the ocean from which a man could not communicate if he were alive. This is not universally accepted as a general rule, but there is a tendency in the law nowadays to allow the legal presumption of death to apply also in “waters without limit.” Taking this tendency into consideration, together with the opinions of Gaonim Hai and Sherira and our own Reform liberal mood to accept the presumption of death, we may conclude in the case you cite that, although the Indian Ocean would be considered “water without limit,” nevertheless there is sufficient evidence that the man is dead and that mourning and memorial services can be held. The date for the beginning of mourning (and all other dates follow from this) is the date when they definitely give up hope.