Case Information
‐ Atl. Specialty Ins. v. Envtl. Grp., Inc.
In the United States Court of Appeals For the Second Circuit
August Term,
No. ‐ ‐ cv A TLANTIC S PECIALTY I NSURANCE C OMPANY , Plaintiff ‐ Counter ‐ Defendant ‐ Appellant, v.
C OASTAL E NVIRONMENTAL G ROUP I NC ., Defendant ‐ Cross ‐ Defendant ‐ Counter ‐ Claimant ‐ Cross ‐ Claimant ‐ Appellee,
S TERLING E QUIPMENT , I NC ., Defendant ‐ Third ‐ Party ‐ Plaintiff ‐ Cross ‐ Claimant ‐ Counter ‐ Claimant ‐ Cross ‐ Defendant ‐ Appellee,
G LOBAL I NDEMNITY I NSURANCE A GENCY , I NC ., Third ‐ Party ‐ Defendant ‐ Third ‐ Party ‐ Plaintiff ‐ Cross ‐ Defendant ‐ Counter ‐
Defendant ‐ Appellee,
A LL R ISKS L TD ., Third Party ‐ Defendant ‐ Cross ‐ Claimant ‐ Counter ‐ Claimant ‐ Appellee. *2 Appeal from the United States District Court for the Eastern District of New York.
No. ‐ cv ‐ — Joan M. Azrack, Judge .
A RGUED : O CTOBER 23,
D ECIDED : D ECEMBER Before: K ATZMANN Chief Judge , C HIN and D RONEY , Circuit Judges .
After loss off Coney Island of barge the “MIKE B,” Plaintiff ‐ Appellant Atlantic Specialty Insurance (“Atlantic”) sought declaratory judgment insurance policy it issued to Defendant Appellee Coastal Environmental Group, Inc. (“Coastal”) was void ab initio or, alternative, there no coverage loss of barge damage to adjacent pier. Judge Wexler of U.S. District Court Eastern District of New York conducted bench trial but passed away prior issuing his findings of fact conclusions of law. case transferred Judge Azrack, who, after no party requested recall of any witness under Federal Rule Civil Procedure issued findings fact conclusions law her role as successor judge entered judgment finding Atlantic liable under terms policy. On appeal, argues Judge Azrack made legal, factual, evidentiary errors Judge Azrack erred recalling certain witnesses. argues that, due Azrack’s role successor judge making findings fact based only trial record, these factual findings are subject de novo review. We conclude that, Federal Rule Civil Procedure 52(a)(6), factual findings successor judges who have certified their familiarity record are subject “clearly erroneous” *3 standard review, and, under Federal Rule Civil Procedure successor judge is no independent obligation recall witnesses unless requested one parties. In addition, find no reversible error Azrack’s findings fact conclusions law, therefore judgment below AFFIRMED.
J AMES W. C ARBIN (Patrick R. McElduff, ICC Industries Inc., New York, NY, brief ), Duane Morris LLP, Newark, NJ, for Plaintiff ‐ Counter ‐ Defendant ‐ Appellant Specialty Insurance Company E RIC J. M ATHESON (Don P. Murnane, Jr., Michael E. Unger, brief ), Freehill Hogan & Mahar LLP, New York, NY, for Defendant ‐ Cross ‐ Defendant ‐ Counter ‐ Claimant ‐ Cross ‐ Claimant ‐ Appellee Environmental Group Inc . Gregory G. Barnett, Casey & Barnett, LLC, New York, NY, for Defendant ‐ Third ‐ Party ‐ Plaintiff ‐ Cross ‐ Claimant ‐ Counter ‐ Claimant ‐ Cross ‐ Defendant ‐ Appellee Sterling Equipment, Inc.
Patrick M. Kennell, Kaufman Dolowich Voluck, LLP, New York, NY, Third ‐ Party ‐ Defendant ‐ Third ‐ Party ‐ Plaintiff ‐ Cross ‐ Defendant ‐ Counter ‐ Defendant ‐ Appellee Global Indemnity Insurance Agency, Inc. Peter T. Shapiro, Lewis Brisbois Bisgaard & Smith LLP, New York, NY, Third Party ‐ *4 Defendant ‐ Cross ‐ Claimant ‐ Counter ‐ Claimant ‐ Appellee All Risks, Ltd.
D RONEY Circuit :
Plaintiff ‐ Appellant Atlantic Specialty Insurance Company (“Atlantic”) appeals from a final judgment the United States District Court for Eastern District New York (Azrack, J. ). Atlantic brought action after April loss “MIKE B,” a spud barge deployed support crane repair Coney Island’s Steeplechase Pier, which had been damaged by Hurricane Sandy issued maritime hull insurance policy Defendant Appellee Coastal Environmental Group Inc. (“Coastal”) coverage MIKE B, well as related protection indemnity insurance. sought declaratory judgment policy void ab initio or, alternative, loss B damage pier caused sinking vessel were covered under terms policy. counterclaimed amount it alleged it owed policy.
Judge Leonard D. Wexler of United States District Court for Eastern District of New York presided over action and conducted bench trial in October and November of 2017. However, Judge Wexler passed away in March prior issuing findings of fact and conclusions of law. case transferred Judge Joan M. Azrack, who, after no party requested recall any witness Federal Rule Civil Procedure certified her familiarity record and issued her findings fact conclusions law September See Atl. Specialty Ins. v. Envtl. Grp. F. Supp. 3d (E.D.N.Y. 2018). Judge Azrack found policy void covered losses, entered judgment Coastal.
On appeal, Atlantic asks us vacate court’s findings fact conclusions law enter declaratory judgment favor or, alternative, remand new trial. argues, among other things, this Court should review Azrack’s findings fact de novo due her role as a successor judge, Judge Azrack erred by recalling witnesses during her consideration record.
We hold findings fact made by successor judge circumstances here are subject “clearly erroneous” standard review contained Federal Rule Civil Procedure 52(a)(6), even where successor judge rules based documentary record, standard we find no basis vacate district court’s judgment. We conclude Azrack required recall any witnesses because no party requested such recall. Accordingly, affirm judgment court.
I. BACKGROUND
A. Factual Background
Coney Island’s Steeplechase Pier situated southern side island, extending into Lower New York Bay toward Rockaways Ocean. In pier substantially damaged by *7 Hurricane Sandy. The City New York contracted with Triton Structural Concrete (“Triton”) repair the damage, and Triton in turn subcontracted with Coastal actually perform repairs.
To conduct work, Coastal chartered MIKE B, a spud barge, from Sterling Equipment, Inc. (“Sterling”). The MIKE B serve as a base for crane perform work on pier. A spud barge holds itself place lowering its spuds (in case MIKE B, steel pipes measuring sixty five feet length) into sea floor. The spuds are housed within spud wells, which serve sleeve around spud and are welded barge’s deck bottom barge. This structure prevents barge from moving horizontally, while still allowing it move up down sea. The B two spuds, which were located its starboard side aft forward positions. Sterling signed an agreement (the “Charter Agreement”) barge March 2013, charter period between April 7, June Charter Agreement included address “1904 Surf
Avenue, Brooklyn[,] NY 11224” heading of “Job Site.” Joint App’x 1409. Under terms of Charter Agreement, Coastal obligated to secure both hull insurance, insuring against damage loss MIKE B, protection and indemnity insurance covering third party claims, including property damage. Coastal a preexisting policy Atlantic covered other vessels period January January 2014; result, Coastal sought add coverage MIKE B this policy. policy included condition “the vessel shall be confined [the]: Coastal Inland waters United States around Brooklyn, NY.” Joint App’x 1445.
On Monday, April 2013, Coastal’s insurance broker, George Zerlanko Global Indemnity Insurance Agency, Inc. (“Global”), emailed Dorothy Schmidt All Risks, Ltd. (“All Risks”) requesting B added policy. On Friday, April 2:17 p.m., Schmidt *9 emailed Mark Fairchild Atlantic asking for a quote add B. Schmidt’s email included Charter Agreement as attachment, including job site address at Surf Avenue. At 3:36 p.m., less than ninety minutes later, Fairchild responded with a quote; addition premiums for additional coverages, quote included a requirement that Coastal assume a higher deductible than that provided for Charter Agreement, but otherwise contained no conditions for extension coverage did request further information. Three minutes later, Schmidt sent along Atlantic’s quote Zerlanko at Global; forty minutes after that, Zerlanko responded, indicating that Coastal would accept quote, including higher deductible. Finally, ten minutes later, at 4:27 characterizes All Risks as “Coastal’s insurance broker.” Appellant Br. claims instead All Risks “licensed agent [International Marine Underwriters (IMU)],” “a writing company IMU.” Appellee Br. (quoting Joint App’x 835–36 (deposition testimony Dorothy Schmidt)). We need resolve whether Schmidt acted as agent because bound coverage directly through its own employee, Mark Fairchild, indicated text, infra . Specifically, Fairchild quoted $10,000 deductible — match other vessels Coastal’s existing policy — while noting Charter Agreement called no higher than $5,000 deductible.
p.m., Schmidt forwarded acceptance quote back Fairchild at Atlantic, indicating that coverage should be bound.
Three days later, Monday, April an expert marine surveyor, Jason Meyerrose, conducted an in water survey barge at Sterling’s yard in Staten Island at Coastal’s request, after which he prepared survey titled “Preliminary Advices for Insurance Underwriting Purposes.” Joint App’x 1390. Meyerrose’s survey declared vessel’s overall condition “fair age past services” valued vessel at $400,000. Joint App’x The survey also stated “the hull equipment subject vessel are satisfactory condition operation in inland waters.” Id. Meyerrose forwarded survey employee Coastal, Kristine Morehouse, later day. In his cover email, Meyerrose indicated Sterling needed make some minor repairs before service, while *11 asking: “This barge will be working in protected waters at Coney Island correct, on Ocean / inlet side????” Joint App’x 1388–89. Morehouse responded few minutes later stating: “Yes correct it will protected waters at Coney Island, Ocean.” Joint App’x Morehouse subsequently forwarded preliminary survey to Zerlanko at Global, who then forwarded it to Schmidt at All Risks, who passed it finally on Fairchild Atlantic. Morehouse’s email subsequent communications all included Meyerrose’s question, but none included Morehouse’s response. took possession B towed it, first
construction yard where fifty ton crane installed, then, Thursday, April job site pier. barge then “spudded” seabed hold it place next pier. That evening, Coastal’s ‐ *12 1 site supervisor, Eric Gundersen, checked the weather forecast, which called 2 rain one ‐ foot seas. [5]
3 When he returned at 7:00 a.m. the next morning, Friday, April 12, 4 Gundersen saw waves were higher than forecasted, “2 to 4” feet 5 coming “from ocean” to south. Joint App’x 1242–43. [6] Gundersen 6 testified he promptly called Miller’s Launch (“Miller”), a tug company 7 which Coastal pre arranged to have a tug available “within an 8 hour at all times,” to send over tug. Joint App’x 1245. [7] The purpose *13 standby tug was to tow the B away from the pier if warranted sea conditions. Gundersen then boarded the barge, where he remained “45 minutes to an hour” to inspect whether the waves were harming it and to ensure everything was “tied down”; Gundersen testified the barge seemed to safe condition time but starting to “mov[e] pretty good” the seas continued to get rougher, he called Miller again to check on the tug’s status. Joint App’x 1244–46. Gundersen subsequently returned barge to further secure items deck, spending an hour hour half board; point he observed one spuds appeared have bent. By time tug finally arrived late morning, Gundersen had learned aft spud well had failed water entering barge.
That afternoon, Coastal deployed floating containment booms protect against any oil spill from then listing barge; because barge already struck pier, Miller worked anchor barge keep it from damaging pier further. Miller — eventually *14 crane manufacturer — prepared to remove the crane from the barge’s deck, work continuing throughout the weekend. Coastal time informed Global the barge was trouble, and Global advised Coastal should do whatever was the “normal range to keep the barge afloat.” Joint App’x 357–58. By Monday morning, April 15, the crane was removed; however, Tuesday morning, April 16, because the ongoing danger barge posed to pier and high cost thus far unsuccessful pumping effort, Coastal chose allow MIKE B sink to sea floor. By April 17, barge fully submerged then, June removed scrap purposes.
Atlantic sent marine surveyor, Alan Colletti, investigate incident on Monday, April 15; he returned twice week, on April April submitted reports estimating costs repairs evaluating cause loss. In interim, wrote April reserving its rights insurance policy claims related B did so again April
On May 24, 2013, Atlantic wrote to Coastal declining coverage for the MIKE B. On October 17, 2013, Coastal requested payment the $400,000 due under policy loss the barge, stating the vessel’s loss “caused by perils seas.” Joint App’x 1621–23. again declined payment February 3, 2014. On August 21, 2014, Coastal again wrote Atlantic, this time also seeking payment under policy’s protection indemnity coverage damage pier costs attempting save barge; Coastal reiterated its claim related loss barge itself. All were denied Atlantic. In total, claimed over $1.2 million policy.
B. Procedural Background
On December 2014, filed this action Eastern District New York. An amended complaint filed December complaint sought declaratory judgment policy covering *16 B was void ab initio or, alternative, there was no coverage under policy’s terms. As relevant here, Atlantic alleged policy was void due fact Coastal had violated its admiralty law duty of uberrimae fidei (utmost good faith) by failing disclose a material risk, breached either express or implied warranties seaworthiness. Alternatively, Atlantic alleged loss B was due a peril covered under policy. Wexler presided over case, including bench trial
conducted over seven days October November trial limited question whether declination coverage proper and, if not, extent damages owed by Atlantic Coastal and/or Sterling policy. Resolution other issues, such potential damages owed Coastal resolution third ‐ party *17 and cross claims, was postponed. Though most witnesses presented live testimony, others did appear in court despite attempts to subpoena them, court accepted their testimony from depositions video or transcript form. Of particular relevance this appeal, Gundersen, Coastal’s site supervisor, apparently ignored two subpoenas trial testimony, Judge Wexler instead admitted Gundersen’s deposition testimony into evidence. In March 2018, after conclusion trial but before he issued a decision case, Judge Wexler passed away, case reassigned Judge Azrack April 2018.
Upon taking over case, Azrack held telephone conference with parties July one its topics whether any parties sought recall witnesses Federal Rule Civil Procedure counsel suggested court “may wish hear from” *18 1 Gundersen; however, when Judge Azrack asked why Gundersen would be 2 likely to honor a third subpoena and appear recall, Atlantic’s counsel did 3 press his request for Gundersen to testify or seek to exclude Gundersen’s 4 deposition testimony.
parties. In a hearing a nonjury trial, successor judge must, a party ʹ s request, recall any witness whose testimony is material and disputed who is available testify again without undue burden. The successor judge may also recall any other witness.
Fed. R. Civ. P. full exchange between Judge Azrack counsel (Attorney Carbin,
misspelled as Corbin in transcript) concerning recall witnesses is reproduced below:
MR. CORBIN [sic]: I note that your request was pursuant Rule particular, whether any parties thought that trial witness should be recalled.
THE COURT: Right.
MR. CORBIN: And regard, I would suggest, your Honor, that from plaintiff’s perspective, only witness your Honor may wish hear from is witness put forward by defendant Coastal. He their job superintendent job time casualty. In fact, he’s ex ‐ employee, as I understand it. He subpoenaed twice defendant refused honor either those subpoenas. And over our objection, Wexler accepted his deposition testimony read in. We had objected testimony being read because Mr. Gundersen, name witness Eric Gundersen. Mr. Gundersen had been previously convicted attempted murder New York City Police Officer served time conviction. But I said, when *19 1 On September Judge Azrack issued her findings fact and 2 conclusions law, stating they were based her “review record 3 and post trial submissions.” Atl. Specialty Ins. F. Supp. 3d 4 Judge Azrack found improperly denied coverage Coastal 5 both hull insurance policy loss B and barge 6 salvage costs, protection indemnity policy pier damage. 7 Turning damages, court awarded Coastal full $400,000 claimed he twice subpoenaed appear testify, he did not honor subpoenas, did appear court instead, Wexler accepted some hi[s] deposition testimony I think Court may interested hear from Mr. Gundersen directly rather than his deposition testimony. THE COURT: But what makes you think Mr. Gundersen going appear now opposed — since he didn’t appear before?
MR. CORBIN: Fair question, your Honor. I do know. I think it ʹ s fair observation.
THE COURT: All right.
MR. CORBIN: I think — rather than take his deposition testimony, I think Court should have insisted his appearance.
THE COURT: Okay, I understand but what you were referring fact he twice ignored subpoenas, correct?
MR. CORBIN: Yes.
THE COURT: Okay. All right. Anything else? Okay.
Joint App’x 2557–58.
for loss of B; $394,725.13 for salvage costs (slightly less than $400,000 sought for such costs); full $402,470.51 claimed for damage pier. Id. 449–53. timely appealed from Azrack’s findings of fact
conclusions of law, claiming error on a variety of legal, factual, evidentiary grounds.
II. STANDARD OF REVIEW On appeal from a bench trial, conclusions of law — well as mixed questions law fact — are reviewed de novo , while findings fact are reviewed clear error. See, e.g. , Beck Chevrolet v. Gen. Motors LLC , 787 F.3d 663, 672 (2d Cir. 2015). [12] “Under clear error standard, ‘may Evidentiary decisions, meanwhile, are subject abuse discretion standard, which error occurs only where district court “bases its ruling an erroneous view law clearly erroneous assessment evidence, or renders a decision cannot located within range permissible decisions.” United States v. Hendricks , 921 F.3d 320, 328 n.37 (2d Cir. 2019) (citation alterations omitted); see United States v. Apple, Inc. , F.3d (2d Cir. 2015) (“Following bench trial, . . . [t]he court’s evidentiary rulings . . . are reviewed abuse discretion.” (citations omitted)). Even where standard met, however, reversible error occurs only where erroneous ruling “also affects party’s substantial rights.” Boyce v. Soundview Tech. Grp., Inc. F.3d (2d Cir. 2006) (citation omitted).
*21 reverse [a finding] even though convinced that had [we] been sitting trier fact, [we] would have weighed evidence differently.’” Mobil Shipping & Transp. v. Wonsild Liquid Carriers Ltd. , 190 F.3d 67 (2d Cir. 1999) (alterations original) (quoting Anderson v. City Bessemer City , U.S. (1985)). “Rather, finding is clearly erroneous only if ‘although there evidence support it, reviewing court entire evidence is left with definite firm conviction that mistake has been committed.’” Id. at 67–68 (quoting Anderson U.S. at 573).
argues particular circumstances this case merit departure from standard review. Specifically, contends that, because Azrack present trial, her factual “determinations are entitled deference” should be reviewed de novo . Appellant Br. We disagree hold factual findings successor judge who has certified her familiarity record accordance with Federal Rule Civil Procedure are entitled same deference would due if findings been made judge who presided over *22 the taking the evidence, even when the successor judge relies entirely on a documentary record.
Such a conclusion is supported by the text Rule 52(a)(6), which provides “[f]indings fact, whether based oral other evidence , must not set aside unless clearly erroneous.” [13] Fed. R. Civ. P. 52(a)(6) (emphasis added). The Rule makes clear a reviewing court shall not apply more stringent standard than “clearly erroneous” to finding fact due form evidence which the factual finding is based. Instead, deference factfinder embodied Rule “is rule, not exception.” Anderson , U.S. 575. And, as Supreme Court has stated, rationale deference merely trial court’s superior ability make credibility determinations; instead, clear error standard takes into account trial court’s expertise fact finding well as concern over “huge cost” in judicial resources a more searching review appellate courts would entail for an only “negligibl[e]” improvement in accuracy. Id. 574–75.
drafting history Rule further supports our interpretation. Rule 52 amended addition phrase “whether based on oral other evidence,” effort make explicit deference owed trial court’s factual findings regardless form evidence which they were based. See Amendments Rules, 105 F.R.D. 204–05, 221–23 (1985); see 9C Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § (3d ed. 2019) (“An amendment made it clear standard appellate review same for oral documentary evidence.”). Prior amendment, some courts appeals applied lesser level deference factual findings where “trial court’s findings [did] rest demeanor evidence evaluation witness’ [sic] credibility.” Amendments Rules, F.R.D. (Advisory Committee’s Note) (citing, example, Marcum v. United States *24 621 F.2d 144–45 (5th Cir. 1980) (reviewing court more likely find clear error where findings based on written evidence); Taylor v. Lombard F.2d (2d Cir. 1979) (reviewing court “may make [its] own independent factual determination” based on written record)). However, as Advisory Committee noted explaining amendment, deference district court’s factual findings based only on court’s ability weigh credibility, but on “public interest stability judicial economy would be promoted recognizing trial court, appellate tribunal, should be finder facts.” Id. . These objectives were determined sufficient bases deferring court’s findings fact regardless nature evidence, absence credibility determinations on documentary evidence regarded insufficient reason an appellate court conduct more searching review factual findings based such evidence.
As result, since least this Court has routinely applied clear error standard reviewing factual findings based documentary *25 evidence, as well as those based witness credibility. See, e.g. , Connors v. Conn. Gen. Life Ins. , F.3d 127, 135 (2d Cir. 2001); see Koam Produce, Inc. v. DiMare Homestead, Inc. F.3d (2d Cir. 2003). And while we have previously occasion to consider this approach where factual findings are of a successor judge, see no reason to depart from clear directive Rule these circumstances. A successor judge who has certified his or her familiarity with record proceeds to make findings fact based record conducts essentially same analysis a trial judge evaluating written other documentary evidence. And considerations underlie deference a district court’s findings fact — recognition fact finding expertise court concern over judicial stability economy — apply equal force findings successor judge.
Moreover, Rule which governs procedures followed successor judges, provides opportunity recall witnesses any litigant who believes credibility particular witness material *26 accuracy successor judge’s factual findings and such credibility may properly assessed only via new testimony. Rule 63 provides that, if any party so requests, successor judge “ must . . . recall any witness whose testimony material disputed,” provided witness “is available to testify again without undue burden.” Fed. R. Civ. P. 63 (emphasis added). In addition, Rule provides successor judge has discretion recall any other witness. Id. Rule 63’s mandatory discretionary recall requirements are important tools protect against incomplete inadequate record. As D.C. Circuit has noted, Rule 63 seeks “[b]alanc[e] efficiency fairness.” Mergentime Corp. v. Wash. Metro. Area Transit Auth. F.3d 1262 (D.C. Cir. 1999). While recall provisions contribute completeness court proceedings, once those requirements are satisfied, Rule permits successor judge make factual findings thus “complet[e] interrupted trials without causing ‘unnecessary expense delay.’” Id. (quoting Fed. R. Civ. P. advisory committee’s note amendment).
*27 We find arguments to contrary to be unavailing: their focus Judge Azrack’s determination it unnecessary rehear evidence as its basis for de novo review cannot reconciled with text Rules 52 and they rest same reasoning rejected by Supreme Court Anderson addressed amendment Rule 52. could have required recall any prior witnesses — including Gundersen — whose testimony it now claims Judge Azrack should have relied upon, but it chose not do so.
For these reasons, we review Azrack’s factual findings clear error, will reverse them only if are “left definite firm conviction a mistake has been committed.” Anderson U.S. 573.
III. DISCUSSION
Turning to merits its appeal, Atlantic raises five primary grounds for error, in addition to challenging numerous evidentiary decisions made by Judges Wexler Azrack. primary arguments are Azrack erred finding that: (1) Coastal did not breach its duty uberrimae fidei , thus policy was void; (2) Atlantic failed prove MIKE B was unseaworthy; (3) loss B was due “peril sea” thus was covered by policy; (4) Coastal entitled damages contractual payments withheld its contractor repairs Steeplechase Pier; (5) Coastal proved its damages using only summary spreadsheet invoices, as well as unauthenticated invoices, evidence. We address each claim turn. A. Coastal’s Duty Uberrimae Fidei
first argues Coastal breached its duty uberrimae fidei utmost good faith, because “the risk presented . . . actual risk.” Appellant Br. Uberrimae fidei doctrine admiralty law requires “the party seeking insurance . . . disclose all *29 circumstances known it which materially affect the risk.” Fireman’s Fund Ins. Co. v. Great Am. Ins. Co. , 822 F.3d 620, 633 (2d Cir. 2016) (quoting Folksamerica Reinsurance Co. v. Clean Water of N.Y., Inc. , 413 F.3d 307, 311 (2d Cir. 2005)). The doctrine “does require the voiding the contract unless undisclosed facts were material relied upon.” Id. at 638 (quoting Puritan Ins. Co. v. Eagle S.S. Co. S.A. , F.2d 871 (2d Cir. 1985)). “Further, minute disclosure every material circumstance is required. The assured complies rule if he discloses sufficient call attention underwriter such way that, if latter desires further information, he can ask it.” Puritan , F.2d (alteration omitted). materiality information underwriter’s reliance information are distinct elements proven, id. , burden proof is insurer show there breach this duty, see id. 872; see Contractors Realty v. Ins. Co. N. Am. F. Supp. 1293–94 (S.D.N.Y. 1979). Finally, because duty imposed “so insurer can decide itself . . . whether accept risk,” duty disclose *30 ceases once the insurer has accepted the risk by binding coverage. Knight v. U.S. Fire Ins. , F.2d (2d Cir. 1986).
argues that Coastal breached this duty failing disclose two material facts: first, that barge would operate southern side Coney Island facing ocean, and, second, that barge “extensively corroded deteriorated.” Appellant Br. at Because each these issues factual in nature, we apply clearly erroneous standard Rule 52(a)(6). See Puritan F.2d (applying clear error standard factual findings bearing breach uberrimae fidei ). In doing so, find district court did err in finding Coastal did not breach duty.
First, district court did clearly err concluding disclosed information concerning actual location barge sufficient comply its duty. As court correctly noted, time bound coverage, policy covered operation barge “[c]oastal [i]nland waters United States around Brooklyn, *31 NY.” Joint App’x 1445; see Atl. Specialty Ins. F. Supp. 3d at 437. This stated navigation limit encompassed the job site the Steeplechase Pier. And Atlantic’s Fairchild testified that upon receiving the Charter Agreement as part Coastal’s request coverage, which included Brooklyn address — Surf Avenue — Job Site, he “looked at” address only confirm “it within navigation [limit] policy.” Joint App’x Because record shows Coastal disclosed barge’s operational location Atlantic relied this information only confirm barge would operated within policy’s navigational limits — thus face risks inherent operating within those limits — failed prove breach by Coastal its duty uberrimae fidei regards use barge Steeplechase Pier.
Likewise, are not persuaded by argument Coastal violated its duty failing more fully disclose condition barge. As initial matter, did demonstrate knew did disclose any material information concerning B’s condition *32 prior binding coverage on April 5. Coastal obtained preliminary survey conducted by Meyerrose only on Monday, April 8 — three days after date on which coverage was bound — and, in any event, that survey concluded that barge’s condition was “fair age past services” barge had recently been repaired. Joint App’x 1391. And though cites number “deficiencies” identified Meyerrose’s “On Hire Survey,” which was based his April inspection, did receive that survey until April Likewise, statements Coastal’s employees cited by evidence Coastal’s knowledge failure disclose material information about barge’s condition all were made after coverage bound, many being made only after barge already been exposed damaged high seas. We thus reject argument court clearly erred finding *33 Coastal did fail disclose circumstances that materially affected risk undertaken Atlantic.
B. Seaworthiness MIKE B second argument is that district court clearly erred concluding that failed prove that MIKE B unseaworthy. first takes issue with court placing burden proof on it, insurer, contending that instead bore burden prove B seaworthy. Though this court has previously held so explicitly, agree consensus authority places burden insurer. See, e.g. , Darien Bank v. Travelers Indem. Co. , 654 F.2d 1015, 1021 (5th Cir. Unit B Aug. 1981); Fed. Ins. Co. v. PGG Realty, LLC , 538 F. Supp. 2d 694 (S.D.N.Y. 2008); Cont’l Ins. v. Lone Eagle Shipping Ltd. (Liberia) , F. Supp. 1067 (S.D.N.Y. 1997) (“The burden is insurer prove unseaworthiness.”), aff’d F.3d (2d Cir. 1998) (per curiam); see Thomas J. Schoenbaum, Admiralty & Maritime Law § 19:16 (6th ed. 2019) (“As general rule, there presumption *34 1 vessel seaworthy, so the burden of proving unseaworthiness is the 2 insurer.”). [16]
3 Turning the district court’s factual determinations concerning the 4 seaworthiness of the MIKE B, we review clear error. See Raphaely 5 Int’l, Inc. v. Waterman S.S. Corp. , 972 F.2d 503 (2d Cir. 1992). [17] 6 Azrack made number findings concerning MIKE B’s seaworthiness, 7 ultimately crediting Coastal’s Sterling’s experts’ testimony over 8 expert testimony evidence put forth by Atlantic. Atl. Specialty Ins. Co. , F. Supp. 3d 446–47. primarily disputes Judge Azrack’s weighing evidence her decision to credit Coastal’s Sterling’s experts.
At outset, disagree with contention that, because Judge Azrack did not recall any witnesses Rule 63, she not entitled to weigh evidence or credit one expert over another. As discussed above, no such restriction is found text Rule Rule clear successor judge is obligated recall a witness only when party has so requested, decision recall other witnesses left successor judge’s discretion. Judge Azrack found “[t]he parties have chosen not recall any witnesses.” Atl. Specialty Ins. F. Supp. 3d 434.
record supports this finding: did request recall any experts other witnesses, its suggestion Azrack “may wish hear from” Gundersen, Joint App’x without more, does rise level recall request triggering obligations Rule *36 Atlantic’s reliance on Mergentime Corp. therefore, misplaced. There, D.C. Circuit vacated a successor judge’s decision because he failed to recall witnesses after appealing party specifically requested that a damages expert be recalled offered submit a list of other witnesses that should be recalled. See F.3d 1266. court concluded that “the plain language Rule control[led]” finding successor judge should have granted appealing party’s request. Id. We agree plain language Rule governs here well, imposing obligation recall witnesses successor judge only after party has so requested. After failing request recall these witnesses below, then, cannot now claim error basis Rule
We turn then substantive arguments court erred finding breached either warranty seaworthiness explicitly provided insurance policy or warranty seaworthiness implied maritime law. Warranties seaworthiness, whether express implied, require vessel able “adequately *37 perform particular services required of her voyage she undertakes.” GTS Indus. S.A. v. S/S “Havtjeld” , F.3d 1535 (2d Cir. 1995). While warranty is “absolute” — i.e., “imposed regardless fault” irrespective “the owner’s knowledge alleged unseaworthy conditions” — meaning seaworthiness is “relative” “varies vessel involved use which vessel is intended.” PGG Realty , F. Supp. 2d 693; see Schoenbaum, supra , § 19:16 (“[T]he standard perfection but reasonableness.”).
With this standard mind, find claim unseaworthiness without merit. In concluding failed prove MIKE B was unseaworthy, Judge Azrack reasonably credited Meyerrose’s testimony findings his preliminary survey, which stated vessel ”in satisfactory condition operation inland waters,” Joint App’x noting Meyerrose “the only qualified person[] have conducted survey B before incident,” Atl. Specialty Ins. F. Supp. 3d Similarly, *38 Azrack’s decision to credit Coastal’s and Sterling’s experts over Atlantic’s concerning condition of the barge and the cause of its loss reasonably based on a comparison experts’ qualifications and testimony. See id. (noting, example, that expert Colletti had only limited experience spud barges finding material portions his testimony be “imprecise reliable”).
In addition her conclusion concerning barge’s seaworthy condition, Judge Azrack found, record supports, had place inclement weather plan have a tug available on one ‐ two hour notice assist lifting MIKE B’s spuds moving barge. Indeed, record supports finding that, had tug arrived on time, spud *39 may have bent, several hours passed between when Miller was first called when the tug finally arrived, during which the spud bent its well tore, causing loss. To the extent it may bear the MIKE B’s seaworthiness, then, Coastal’s contingency plan reasonable circumstances reasonably known time; fact that tug took far longer arrive than planned, coupled with unanticipated severity weather sea conditions, did render MIKE B unseaworthy. Under clear error standard applicable determinations seaworthiness, we reverse only where we are “left definite firm conviction mistake has been committed.” Mobil Shipping & Transp. F.3d 67–68. In light court’s extensive findings their support record, cannot find any such mistake has been committed here.
C. Covered Peril third claimed error concerns Azrack’s finding met its burden proving loss B *40 proximately caused by peril of sea covered the insurance policy. [19] A peril of sea maritime insurance term, defined reference “those perils which are peculiar sea, and which are of extraordinary nature or arise from irresistible force or overwhelming power.” R.T. Jones Lumber Co. v. Roen S.S. Co. , F.2d 458 (2d Cir. 1959). Our cases have applied term “damage [] done fortuitous action sea,” N.Y., New Haven & Hartford R.R. v. Gray F.2d (2d Cir. 1957), have held term includes “occasional visitations violence nature, like great storms, even though these are no more than should be expected. . . . Indeed, fortuitous actions sea much less violent than storms have been held within its intended *41 coverage.” Cont’l Ins. Co. v. Hersent Offshore, Inc. , 567 F.2d 535 (2d Cir. 1977) (citation omitted). For example, have found high swells caused a passing freighter constitute a covered peril of sea. See Allen N. Spooner & Son, Inc. v. Conn. Fire Ins. , 314 F.2d 756 (2d Cir. 1963), cert. denied , 375 U.S. determination of whether certain weather or sea conditions constitute peril of sea “is fact intensive inquiry which requires examination type of vessel, location of vessel, expectability [sic] weather, as well as its severity.” Lone Eagle Shipping , F. Supp. 1061; see Darien Bank F.2d 1020 (“[W]hether an occurrence constitutes an extraordinary risk so peril sea itself absolute unvarying thing, but is dependent circumstances case character vessel insured.” (citation omitted)).
In conducting this inquiry, Azrack made detailed findings concluded had met its burden showing “wind sea conditions generated waves . . . averaging feet when B *42 was lost” that these conditions “were proximate cause of spud well tearing, initial ingress water, loss MIKE B.” Atl. Specialty Ins. F. Supp. 3d at 447–48. raises two sets challenges these findings. First, it raises evidentiary challenges, arguing that Judge Wexler should not have allowed deposition testimony Gundersen considered, that Judge Azrack should not have credited Gundersen’s testimony, that it was error Judge Azrack “refus[e]” recall Gundersen. See Appellant Br. at 46–48. Second, challenges Judge Azrack’s ultimate conclusions, primarily arguing did prove conditions were “extraordinary” it B’s unseaworthiness instead proximately caused loss. Id. 48–51. We disagree each argument. First, Wexler’s decision consider Gundersen’s testimony certainly abuse discretion. Federal Rule Evidence permits admission former testimony, including “given as witness . . . lawful deposition,” where witness unavailable testify. Fed. R. Evid. 804(b)(1)(A). And, relevant *43 here, witness is considered unavailable where he or she is “absent from trial . . . statement’s proponent has not been able, by process other reasonable means, procure . . . [witness]’s attendance.” Fed. R. Evid. 804(a)(5). Given Gundersen’s refusal appear under subpoena testimony was taken under oath during deposition, admission of evidence instead appears faithful application of Federal Rule Evidence 804. Next, we do not find error in Judge Azrack’s decision credit Gundersen’s testimony: inconsistencies identified by are most minor, many cases — such Gundersen’s statements concerning height seas April — credited testimony supported other evidence record. And, lastly, have already concluded Rule Judge Azrack under no obligation *44 attempt recall Gundersen given Atlantic’s lack of specific request do so.
has likewise failed demonstrate that Judge Azrack’s factual findings concerning the presence peril of the sea and the cause the barge’s loss were clearly erroneous. As the related inquiry into the B’s seaworthiness, Judge Azrack reasonably credited Coastal’s Sterling’s experts over on condition the barge the cause spud well’s tearing, finding that it was unexpected sea conditions, any inherent fragility barge, that caused losses. And Azrack’s decision credit Coastal’s experts weather sea conditions over Atlantic’s, due superior methodology modeling relied former, similarly well reasoned. See Atl. Specialty Ins. F. Supp. 3d 442–43, 447–48. Taken together, then, evidence record amply supports court’s findings seas reached four six feet, such conditions were “fortuitous” light barge’s deployment, it these conditions caused loss *45 barge. Accordingly, we do not find the district court’s conclusion that the MIKE B was lost due covered peril under the policy be clearly erroneous. [22]
D. Damages Atlantic’s final two claims error concern the calculation of damages undertaken by the district court. First, contends that because the policy excludes “[a]ny liability assumed by the assured beyond imposed by law,” Joint App’x 1436 — thus excludes third party contractual liabilities — it should not be responsible for payments withheld under the contract between Coastal Triton. [23] Appellant Br. 54–56. *46 Second, challenges inclusion damages for barge salvage pier damage were substantiated trial by “un authenticated third party bills, records unsupported summaries sums Triton reportedly withheld under their contract.” Appellant Br. We do not find either claim error persuasive.
Regarding claim certain damages are not compensable under policy by virtue their being “contractual” nature, asks us to read into its policy terms simply do not exist. claimed damages do arise out contractual dispute, but represent payments withheld specifically to compensate Triton for repairs necessitated by MIKE B’s collisions Steeplechase Pier. challenge to its liability repairs under policy is, rather, challenge form which Coastal paid repairs, fact such repairs are covered repairs. After pier further damaged B, Triton held back portions its payments their subcontractor agreement cover costs Triton incurred repair these further damages clean up related debris.
*47 under policy. Under Atlantic’s theory, it would apparently not avoid liability if Coastal had made repairs itself, if Triton had simply sent an invoice requesting payment for repairs, if Triton sued tort for costs repairs. Because policy makes no distinction concerning form payment, we cannot agree argument essentially implies such term into policy.
Similarly, do find persuasive arguments concerning Coastal’s use court’s admission “un authenticated third party bills, records unsupported summaries sums Triton reportedly withheld under their contract” prove damages. Appellant Br. 56. We find no abuse discretion by district court admitting crediting challenged evidence. That evidence lengthy compilation spreadsheets supporting invoices prepared trial, but Coastal’s insurance adjuster purposes submitting claim policy, it sent court correctly concluded failed raise any credible reason suspect *48 documents were inauthentic inaccurate. Moreover, even if Atlantic had done so, documents, “taken together all circumstances,” have “distinctive characteristics” invoices propounds they are. Fed. R. Evid. 901(b)(4). And district court rightly concluded Rule which requires party able to produce for examination original documents underlying summary chart prepared for trial, inapplicable these documents as they were prepared trial, but submission insurance claim 2014. See Fed. R. Evid. 1006. In sum, do find error district court’s computation Coastal’s damages.
*49 IV. CONCLUSION 1
2 We have reviewed all remaining arguments raised 3 appeal find them without merit. For foregoing reasons, 4 AFFIRM judgment court.
[1] facts recounted here are undisputed parties unless otherwise indicated.
[2] All Risks “licensed insurance broker.” Joint App’x dispute nature relationship between All Risks parties.
[4] B had previously been surveyed Meyerrose’s father partner at firm, Rick Meyerrose, 2012; point, Rick Meyerrose had valued barge $400,000, Jason Meyerrose did believe value changed subsequent year.
[5] Gundersen testified in deposition, but trial. His deposition was admitted trial, however. objected to use Gundersen’s testimony below continues raise objections to it on appeal. For reasons discussed in more detail below, find there no error court’s consideration Gundersen’s testimony.
[6] Coastal’s weather expert, Dr. Austin Dooley, testified waves would have been “4 feet” area pier April Joint App’x 1166, while expert, Trevor Bevens, testified waves would have been more than two feet, Joint App’x 1177–78.
[7] There is additional testimony record indicates tug would available within two hours, rather than one. Joint App’x record unclear whether it standard operating procedure Coastal contract have tug available such short notice, if made such arrangement specifically due B’s location associated operational conditions, including weather.
[8] References “complaint” this opinion are this amended complaint.
[9] Sterling asserted counterclaims against cross claims against each other; Sterling asserted third ‐ party claim against Global, Global asserted third party claim against All Risks.
[10] Rule provides follows: If judge conducting hearing trial unable proceed, any other judge may proceed upon certifying familiarity record determining case may completed without prejudice
[13] Rule continues provide “the reviewing court must give due regard trial court’s opportunity judge witnesses’ credibility.” Fed. R. Civ. P. 52(a)(6). As Supreme Court has stated, however, this additional language “does alter [the Rule’s] clear command” all factual findings, regardless their evidentiary basis, are owed deference reviewing court. Anderson U.S.
[14] As discussed more detail below, failed request recall experts whose testimony it challenges, its suggestion court it “may wish hear from” Gundersen, Joint App’x likewise did qualify request mandatory recall witness Rule
[15] We note Meyerrose did mention his April On Hire Survey nor amended his preliminary survey reflect barge located ocean side Coney Island.
[16] district court concluded, in alternative, that proven preponderance evidence B was, fact, seaworthy. See Atl. Specialty Ins. Co. , 368 F. Supp. 3d at
[17] Earlier cases this Court have suggested “conclusory finding seaworthiness” may entitled slightly less deference appeal, though even under standard finding nevertheless “entitled great weight will ordinarily stand unless lower court manifests incorrect conception applicable law.” Mobil Shipping & Transp. , F.3d (citing In re Marine Sulphur Queen , F.2d 98 (2d Cir. 1972)). As pointed out Mobil Shipping , however, more recent cases including Raphaely have adopted clear error standard. Id. 67–68. To extent these standards are meaningfully different, we conclude, as court did Mobil Shipping we need settle this question: discussed below, court made extensive findings fact concerning seaworthiness barge, would defer them either standard.
[18] Atlantic contends Judge Wexler had already been “apparently persuaded” MIKE B’s unseaworthiness when he barred Atlantic from showing further photos B’s hull during trial. See Appellant Br. 32–37. Based this conclusion, suggests it error Judge Azrack find met its burden proof. However, review trial transcript compels only conclusion Wexler, having already reviewed number photographs, found further testimony potential holes barge cumulative minimally probative. See Joint App’x
[19] Policy reads, relevant part: PERILS: Touching Adventures Perils which Underwriters are contented bear take upon themselves, they are Seas . . . all other like Perils, Losses Misfortunes have or shall come Hurt, Detriment Damage Vessel, or any part thereof . . . . Joint App’x
[20] argues Judge Wexler should not have admitted Gundersen’s testimony Judge Azrack should have credited it due Gundersen’s prior convictions assault. E.g. Appellant Br. 47. Azrack’s exclusion evidence these prior convictions — none which bears directly Gundersen’s truthfulness, latest which occurred — abuse discretion. See Fed. R. Evid.
[21] district court found the alternative the loss was caused by Gundersen’s negligence failing properly account for weather, which would covered Policy’s Inchmaree (“Additional Perils”) clause. See Atl. Specialty Ins. F. Supp. 3d 448–49. Because we find no error with district court’s conclusion concerning perils sea, we need address this separate conclusion.
[22] Because we affirm court’s conclusions policy void it covered loss MIKE B, reject claim for reimbursement $238,750 it paid reservation rights third party removal B wreck.
[23] As recounted above, Triton prime contractor Steeplechase Pier project City New York. Triton subcontracted with undertake pier
[24] We note these documents its possession thus had ample time seek discovery concerning their accuracy. did produce evidence inaccuracy concerning two invoices, district court excluded those from its calculation. See Atl. Specialty Ins. F. Supp. 3d Given substantial opportunity evaluate other invoices, Atlantic’s failure credibly call into question any them supports court’s rejection challenge their authenticity.