Dead Sea: Is a Person Lost in Water Presumed Deceased?

Adapted from the writings of Dayan Yitzhak Grossman

July 25, 2024

The AP reports:

A Chinese woman who was swept out to sea while swimming at a Japanese beach was rescued 37 hours later after drifting in an inflatable swim ring more than 80 kilometers (50 miles) in the Pacific Ocean, officials said Thursday…

She was likely swept out to sea by a current and an evening seaward wind from the mountains, and her swim ring made it more difficult to move against the wind…

The woman was spotted by a cargo ship early Wednesday, about 36 hours after she disappeared off the southern tip of Boso Peninsula, the coast guard said.

The cargo ship asked a passing LPG tanker, the Kakuwa Maru No. 8, to help. Two of its crew members jumped into the sea and rescued the woman, officials said. She was airlifted by a coast guard helicopter to land…

The coast guard said she had drifted more than 80 kilometers (50 miles) and was lucky to have survived despite the danger of heat stroke, hypothermia at night, or being hit by a ship in the dark.

Hidetoshi Saito, a senior member of the Society of Water Rescue and Survival Research, said in a televised interview that the woman’s survival was like “a miracle.”[1]

How great are the words of the Chachamim:

The Rabanan taught in a breisa: If a man fell into water and did not emerge, whether it is water that has an end or water that has no end, his wife is forbidden to remarry; these are the words of R’ Meir. But the Chachamim say: If it is water that has an end, his wife is permitted to remarry; if it is water that has no end (mayim she’ein lahem sof), his wife is forbidden to remarry…

It was taught in a breisa: Rabban Gamliel said, once I was traveling on a ship, and I saw a ship that was shattered, and I was pained about a talmid chacham who was on it. And who was it? R’ Akiva. But when I came up onto dry land, R’ Akiva came and sat and deliberated before me in a matter of halacha! I said to him: My son, who raised you up? He said to me: A board from the ship appeared before me and I took hold of it, and before every wave that came upon me, I bowed my head, and it passed over me…At that time I said, how great are the words of the Chachamim, who said: If it is water that has an end, his wife is permitted to remarry; if it is water that has no end, his wife is forbidden to remarry. (R’ Akiva’s survival demonstrates that if a person is lost in water that has no end, we cannot be certain of his death.)

It was taught in a breisa: R’ Akiva said, once I was traveling on a ship, and I saw a ship that was sinking into the sea, and I was pained about a talmid chacham that was on it. And who was it? R’ Meir. But when I came up onto the land of Cappadocia, R’ Meir came and sat and deliberated before me in a matter of halacha! I said to him: My son, who raised you up? He said to me: One wave swept me on to its fellow, and its fellow on to its fellow, until the sea spat me out onto dry land. At that time I said, how great are the words of the Chachamim, who said: If it is water that has an end, his wife is permitted to remarry; if it is water that has no end, his wife is forbidden to remarry.[2]

The Chachamim do implicitly acknowledge that one who fell into mayim she’ein lahem sof is presumptively dead, and the prohibition against his wife remarrying is a mere (apparently Rabbinic) stringency. This is evident from the following Gemara:

There was that idolater that was going about saying, “Who is here from the household of Chasa? Chasa has drowned.” Rav Nachman said, “By G-d! The fish have eaten Chasa.” On the basis of Rav Nachman’s words, Chasa’s wife went and remarried, and they didn’t say anything to her.

Rav Ashi said: Learn from here that that which the Rabanan said that if it is water that has no end, his wife is forbidden to remarry, this pertains only lechat’chilah (ab initio), but if someone did marry her, we do not take her away from him.[3]

The permission for the wife of a man who fell into mayim she’ein lahem sof who remarried to remain with her new husband, and the fact that Rav Nachman swore (by Hashem’s Name!) that Chasa had been eaten, clearly indicate that we actually are convinced that the man is dead, and that the prohibition for the wife to remarry lechat’chilah is only a stringency, as R’ Meir ben Baruch (Maharam) of Rothenburg explains:

Do not wonder about Rav Nachman, who swore that the fish have eaten Chasa, how could he have so sworn? Since we say that his wife is prohibited, we see that we are uncertain whether he died or not! For one may answer that most people who fall into mayim she’ein lahem sof are not saved, so Rav Nachman swore properly. For even in cases of capital punishment we follow the majority, but with regard to arayos (forbidden unions) we are stringent and say that lechat’chilah she may not marry, even though most are not saved…[4]

The Rambam, too, says that the stringency of not presuming a man who fell into mayim she’ein lahem sof to be dead is limited to the prohibition against his wife remarrying, as opposed to other halachic contexts:

One who drowned in water that has no end, and witnesses testify that he drowned in their presence and all traces of him were lost, even though his wife may lechat’chilah not marry, his heirs may inherit him on the basis of their testimony…

For I say that they were stringent in these matters only because it concerns a prohibition subject to kareis (spiritual excision). But with regard to money, if witnesses testify to events that can be presumed to lead to death, saying that they saw these things, and all traces of the person are lost, and afterward it is heard that he died, they may inherit on this basis. This is followed on an everyday basis in all courts of law, and we have not heard anyone disputing this.[5]

While the Maharam and the Rambam do not explicitly say that the stringency about the wife remarrying is Rabbinic, numerous Acharonim interpret the Rambam’s view that way,[6] and it is this writer’s impression that this is a ubiquitous assumption in teshuvos on the topic of agunah.

One early source that is explicit on this point is R’ Avraham ben Moshe of Regensburg (a correspondent of R’ Eliezer ben Yoel Halevi, the Ra’aviah):

Because a woman whose husband has fallen into mayim she’ein lahem sof and subsequently remarried is permitted to remain with her new husband after the fact (bedieved), it is evident that the prohibition here is only deRabanan, and because of this she is permitted bedieved. For if we would consider this to be a matter of doubt on a de’Oreisa level, then we would say that she must leave her new husband…And the reason for this is that we maintain that most of those that fall into the water…end up dying.[7]

[1]Mari Yamaguchi. Woman swept to sea while swimming at a Japanese beach rescued 37 hours later and 50 miles away. AP News. https://apnews.com/article/japan-swimmer-swept-to-sea-rescued-a85550612d729dfc2a57f8197d34fb72.

[2]Yevamos 121a.

[3]Ibid. 121b.

[4]Shu”t Maharam (Cremona edition) end of siman 194 (also in Teshuvos Maimoniyos Nashim siman 11 and elsewhere). Cf. Tosfos ibid. 36b s.v. Ha lo shaha, Bava Metzia 20b s.v. Isura, Avodah Zarah 40b s.v. Rashbag omer, and Bechoros 20b s.v. Chalav poter.

[5]Hilchos Nachalos 7:3.

[6]Shu”t Darchei No’am E.H. siman 63 p. 165a; Shu”t Noda Bihudah kama E.H. simanim 29 (s.v. Ve’achar kol hahatzaos ha’eileh), 32 (s.v. Vehinei haRambam), and 46 (s.v. Umeiatah omer ani); and see Sefer Hamafteiach to the Rambam (Frankel edition) ibid. for additional sources. (The Noda Bihudah is focusing not on mayim she’ein lahem sof but on some of the other scenarios mentioned by the Rambam that we omitted in our citation, but his understanding of the Rambam’s view would certainly seem to extend to the case of mayim she’ein lahem sof as well.)

[7]Sefer Ra’aviah (Yerushalayim 5725) Vol. 4 siman 901 p. 138.

For discussion of the precise circumstances under which someone who fell into mayim she’ein lahem sof may be presumed dead, see Otzar Haposkim E.H. Vol. 7 pp. 74a-109b, and Sefer Hamafteiach ibid.

Cf. Chevel Nachalaso 2:56:4, here, and here.