*1 be couched injunction prop- Particularly general is terms. independently er where a defendant in- means the court of what advised supporting court’s district clude. The activities opinion made clear here de- That covered. were found to be in- scope understood fendant junction fact is evidenced first description activities of these bodily opinion lifted sentence of our compro- Some
from defendant’s brief. in decree between must be effected mise articulation, need need for pre- comprehensiveness to for sufficient “easy Jack- v.
vent
evasion.” McComb
1949, supra,
Paper Co.,
U.S.
sonville
500;
page
page 193,
see
69 S.Ct. at
Mitchell, 1
v.
Aetna Finance Co.
objection
v.
THE ex THE Yacht ESCAPADE THOR II etc., al., Appellees. et COMPANY,
RELIANCE INSURANCE Appellant,
v. BOND, Appellee.
Howard
Nos. Appeals
United Court of States Fifth Circuit. 17, 1960.
June *2 Anderson, Yancey, Hervey
Cromwell A. Miami, (Smathers, Thompson Fla. & Dyer, Miami, Fla., counsel), appel- for lant. Parker, Miami, Turner,
W. F. David M. Fla., appellees in Nos. Parker, Thomson, W. F. Robert M.
Miami, Fla., appellees in No. 18018. HUTCHESON, Before BROWN Judges. WISDOM, Circuit BROWN, Judge. JOHN R. Circuit We here test whether determining Court was correct in subsequent conduct of the underwriter a loss it either waived asserting acknowledged breach private pleasure use yacht significance policy. of a hull solving Sue and Labor Clause problem may be at the heart of the case. ostensibly
While in the form of two separate proceedings,1 reality this is in .admiralty (No. salvors, 18017) 1. The yard, cause Dunn’s boat and int.ervenor brought against in rem Corporation, the Yacht recov- Allied Judge saw After a trial grows sub out of single case which flesh, the witnesses Yacht heard damage sustained stantial Escapade notwithstanding the stranding held that near Court result aas *3 had 8, warranty, February the breach of on Cay Bahamas in the Cat or was the defense either insured waived Escapade was 1958. The M/Y breach. yacht hull to Recovery from the assert forfeiture apparently standard an under additionally and $30,000. for losses agreed of valuation policy at an expenses the Sue hoary for all incurred lan of the variations It contained Clause,4 de- was therefore and Labor found, generally Saskatchewan guage Pack, creed. Spot Ins. Co. v. Government 1957, 386; Tropical briefly F.2d facts the We need but discuss Birmingham Fire Products, Inc. v. of those do in terms and then we shall so 116, 118, Pa., Cir., 247 F.2d expressly impliedly found Co.of either rovers, pirates and along actually so assailing thieves, the The Yacht was trial court. expressly covered it Bond, February own- the stranded Of of seas. perils the to Assured, due losses word er not receive and did by severe course, strand, followed February a He from immediately Yacht until 11. the days several vessel for pounding casualty of the the reported to the the of Agent abatement awaited Hansen, salvors while Insurance office of the weather, case classic fury was poli- a of the the had delivered who executed and Consequently, peril. sea cy of a over took for and who soon the Insurer of want for denied been handling not have could loss local direction of the the liability, peril. Denial insured reporting an home to the under continuous came, the belatedly on was office, during per- when office. Hansen’s his had ground been vessel McClaskey, that since the dispatched absence, sonal voyage, was for week’s chartered surveyor acted marine who thereafter warranty2 Insurer, representative of the use to breach the of the policy. Cay vessel. Cat to examine stranded voided
and this ' imately $1095.99) vors. of ped age granted by Bond, Insurer, mittedly due, amount' due preventive liminary granted Reliance ery attorneys’ fees. the Insurer under the care- ed er, (estimated ($2967.90). Under .the “Private $19,890.05), the value of work on the 'the of in Bond, the civil $2700 pilferred ($3500) and recovery to recovery to paid by preparatory Insurance shipyard provided: Assured work done pleasure heading ground recover cost survey yacht. The owner, civil was for yacht owner, impleaded shipyard action. to the Owner plus payable ultimately him to the salvors salvage for (18018) after his “General Company, warranty: against repairs policy. the loss in full Florida cleaning up survey (approx- delivery by bill loss and was Reliance, fitting strip- salvage, vessel shall Conditions” Xacht The was Warrant- statutory for $1288.17 brought for the Insur- clean- Court Court taken value dam- pre- sum sal- and ad- 4. 3. ets Assurer ing we, ing Insurance,” herein guard unless necessary for the waiver clause declared travel loss or shall ceptance permission to servants be used poses yard Under Payment “Sue and any are inserted for and for, insured. the rate survey, preserving approved misfortune, insurance; Assurers, part solely or Assured preventive clean-up considered to shall endorsed hereon.” recovery abandonment.” labor: heading agreed thereof, assigns, [2]): see for not be policy provided salvors and to the And it is [2] about the Assured, will to note private pleasure pur- it shall [1] quantity of the “Section identify hired contribute without property insured, a waiver or charges In case recovering, no sue, Assurers, supra. be defense, their or chartered preparatory said acts lawful labor especially ‘A’—Hull prejudice the sum whereof factors, accord- (brack- vessel, of the safe- ship- later sav- any and and ac- though McClaskey hav- leaving Cay, In other words the Cat Before ing right inquire pursuant to the to take action salvors, Dunn, called salvage supra, Clause, if note 4 they Sue and Labor see could undertake whether put responsi- McClaskey so and the full returned declined do proved feasible. bility dis- February morn- There no on the Assured. was On to Miami on pute salvage cost, probable estimated February talked ing Hansen neighborhood $2,000, ves- dis- that the from Bond Bond and learned plain Meyers, as- cussed.5 At rate Hansen made chartered. sel had been arrange immediately sal- Hansen, Bond that he had obtained sistant of implication vage, equally copy and the charter. That afternoon *4 so, positive both Meyers Bond Bond that if failed to do called on Hansen and underway salvage salvage program Es- the the then of his office where M/Y they Although stopped, would capade and the Insurer discussed. would be was Following liability. it, had Hansen further Bond about disclaim did not tell of prepared letter already office of the Bond the home such demands talked to along authority Insurer, exist- addressed to of these lines had informed them the copy McClaskey up charter-party, picked it later of which the salvors. the ence of February had, the then on from on afternoon of he instructions the then and Cay letter then the had called counsel flew to Cat delivered home office in the acting of arrived with for the because to the salvors who had still Insurer begun salvage yet pleasure equipment but had not known breach the the salvage 2, supra. operations. warranty, note the by through Meyers Bond’s Mc- to But direction Hansen Hansen and went Claskey yet the at an afternoon Bond was for was not office because Insurer that contending present not, total time or that the Yacht was a Whether all the end. McClaskey kept therefore abandoned in constant touch with loss was salvage operations. was Hansen adamant the The vessel Insurer. was the accept an the Feb- that returned salvors to Miami on would not the ship- emphatic ruary equally abandonment and was 19 where she was taken the yard responsibility pro- Corporation. of Allied Mc- that it was Bond’s Claskey salvage property done and to the vessel to be tect his outlined certain work Although McClaskey, pur- shipyard, apparently wary in- if feasible. but the directions, surveyors, had to Hansen’s earlier structions declined suant arrangements perform any McClaskey, preliminary the still act- made with work. ing Insurer, salvors, plain made Bond told that Bond Hansen it for the Bond personally shipyard to that Bond did not authorize have to if would authorize salvage, McClaskey, for Bond real Hansen and do the work. asserts with no compliance call back. that would the salvors contradiction his strenuously McClaskey 5. Bond examined Bond’s and his wife insisted light that had stated Bond in invoice of' Hansen that need counsel tbe the- 10, 1958, Shipyard worry Company not the Insurance March Allied $1,095.99. pay sum In would this above the in sum of addition to over policy. washing $30,000 limit This was other down and clean- items Meyers up ing $94 denied Hansen and the interior the vessel for etc., ($924.96) did balance of it related Court not resolve con- District this regard charges decisive, primarily do to labor disassem- flict. not We it as quite desalting, bly of the main evident from the removal seems compressor parties generator, Labor, engine, of Sue and and elec- nature both equipment discussing expenditures pre- from the boat for Sue and trical damage up inspec- and dean “for Labor in the best of faith could vent have surveyor.” thought are recover- tion amounts question “Now, [items are those able over and above To the the face value of specified policy. on sub- exhibit] Their would difference of work you stantially things categorically agreed over whether Hansen wanted masterpiece pay op- his answer was a whether was left done?” process policy. Chance eration Tinker-to Evers-to of a These circumstances led McClaskey’s he advised was that demand estoppel. they mem- Court to find In brief authorized shipyard were highlights opinion touching Mc- oranda Hansen work do whatever inconsistency emphasized Whatever Court Claskey them to do. instructed authorization, (through Hansen of the Insurer of the terms give asserting Hansen) have McClaskey Bond would direc- the ones to were acting protect prop- they look tions, then to erty after and his own were and since accept owner, in- their Insurer would as the vessel as friends solely pointed activity to abandonment. The out related Court terest and “Neither of these any Insurer. statements can interests significance rational the face February 12 Though this from all of They liability by a denial of insurer. through early days had of March meaningful only can become in a context direct, personal gone active, predicated continuing liability, upon McClaskey, participation the Insurer’s insurer is abandon- not concerned with re- representative full detailed and with liability, if ment denies office,7 Insurer was ports home *5 only compulsion upon care the insured to per- To Bond’s claim. silent about the damaged property for his desire to is his handling Hansen, inquiries, sistent required do the ‘sue labor and ground mere- loss on the ly clause’; keep policy force thus to patient. not It was told Bond be recovery.” and so become entitled to a from until March 7 that Bond received F.Supp. [173 832] only and communica- the first Insurer court). By gen- appeal (except pleadings filed this tion attacks erally holding urges estoppel Bond have date “I On Hansen wrote and message specifically applied the effect that it cannot here be [Reliance] special they accepting in for two are reasons. The first is that estoppel applied your on cannot be connection accident extend cov- with [M/Y erage. Oddly enough Escapade].” re- second even is that even if the In- this principles general- cooperation applicable quested in- surer under further ly vestigation wholly companies estopped act insurance the claim—an was asserting liability.8 breach with denial of inconsistent Hansen’s 7. Marine that would McClaskey’s or Hansen’s acts. inspect They Hansen to informed believe likely. things: pletely quiescent Assured, we you by which to make this ence—A. ly Yes, done, “Q. “Q. “Q. “Q. “A. That can bet on that. were were sir. before were what And You told They * * * you it.” Quite silent not the (1) doing. and did Oh. doing down testimony they get knew wasn’t possible. I but they never could them? A. You Insurer: Mr. Bond Don’t did Home home office I (2) that, nothing? knew all about what have informed that, knowing want this get repudiated any it was made clear worry refer- here with didn’t Office remained in the boat to I wanted done. to inform Mr. that of the about completely was com- A. they? court certain- Allied what Very what that. this two A. 8. The letter A. A. Right, told Right. did wrote vessel Right, ing day tion right. about “Q. —They “Q. You “Q. “Q. And “Q. “Q. “Q. You “Q. “Q. [*******] nothing. Right. taken Right. you the 6th was you It was itAnd was And And it that’s * * * charterers they over the up being brought told they continued: estimates told will be right. or 7th [Reliance] did being told them did them all of But river? being put nothing being surveyed? appreciated.” telephone you nothing? of March when you the vessel disassembled? A. were your “Hank —* in? A. A. wanted to talk told until early * Right. that? A. A. them [Meyers] made? That’s ways? on or atten- other They they be- A.
487 against the claim pleasure stood. abhor- use Consistent the law’s expenses consequence this was rence of of for- for sue and labor since the harsh having unique feiture, policy policy provi- sue marine violations bringing provision, upon be no es- could sions are labor looked about peril temporary toppel claim for as to the named “forfeiture” more which is damage accurately itself. Yacht described now the term coverage generally policy may objections used— be first these suspended. coverage “Consequently are aware that quickly answered. We permanently destroyed. is sus- It many others, Court, see as have long pended long as, only so so Co., Campbell Motor Ins. Home Co. v. specified policy the violations of the basic 486; Ala. 150 So. requirements clear, Equally continue. Practice, Appleman, Law Insurance coverage is revived the moment (1944), has declared at 628-629 § breaches or cease.” conditions Lineas supply estoppel cannot waiver Expresas Aereas Colombianas v. Travel- existed, it cannot where none contract Co., Cir., 1958, ers Fire Ins. 257 F.2d coverage supply the contract did where 150, 155, especially and see note 9. conditions “It is settled that not. well coverage scope going of a course, Of the moment the distinguished insurance, as from those Yacht commenced, fetched the loss ground forfeiture, may furnishing a yet cured, the breach had not been by implication from con- not be waived suspension, Henjes unlike v. Aetna rule is that duct or action. The while Co., Cir., 1943, 132 F.2d conduct its insurer operative. AMC point was still But the *6 insisting knowledge upon a for- its from private pleasure is that the war coverage policy, or re- feiture a of ranty merely provided a defense to an oc coverage cannot ex- on the be strictions currence and loss otherwise under covered by waiver es- tended doctrine of or policy.9 any As case of in other Employ- toppel.” & v. C. E. Co. Carnes coverage, may defense to contract it be Liability Corp., 5 Assurance ers’ 1939, may waived or the underwriter be es- F.2d 742. topped doing it, to so not assert is expanding coverage. creating newa estoppel here found a But the as by the does not create specific fact District Court We do not think that the second grant liability coverage availing. not Moreover, new reason a already is more policy. pointed As we out a discussion of will also it serve dis- language general policy pose holding hull traditional this attack on the reflecting estoppel grounds the even more tradi ancient under the broad that to, marine underwriters intends tions of the action of prop- the Insurer could not damage does, expressly erly regarded from cover be as inconsistent nor as Stranding peril inducing perils seas. is a conduct detrimental to the As- pounding sea. from objection So is sured. The nub of the second angry Liability policy waves. seems to be this. Granted that action peril company be absent not because the is an comparable will insurance covered, but because not the As taken that here the Insurer Feb- from chartering ruary in Yacht has ostensi sured 12 to March was inconsistent coverage bly policy “forfeited” the other with denial of and induced ac- existing. promissory But these war tion detrimental wise to the Assured so that a really not forfeit the contract ranties do court would hold that the Insurer was normally asserting term is under- that awesome as from the known and especially is This true as dorsed. What underwriter re- has pleasure qualified approve by special as the war- unto served itself to supra. By terms, permission ranty, advance, own note its can it waive or operative ap- it is unless the charter assent to is after the event. permission proved insurer and en- contracts, reviving though proached thereby as it were two available defense contract,10 ordinary just dif- insurance one as in the the forfeited whole of This, policy. Consequently, required the ineonsistent- here. is ferent result detriment-inducing-conduct argument goes, incon- should be so because is sepa- separable (if one on the confined that sistent action injury undertaking. rate) this hand, The trouble with the detrimental ignores history, Assured, other, function all relate to is that on the salvage protect purpose the vessel and Labor Clause. of the Sue efforts to nature, briefly These, by may capsule, stated. In a that be harm. further duty his expenditures toward covered has the labor Since assured are sue and provision of aof unique underwriter to exercise the care separately under the poli- protect prudent in- of marine owner Labor Clause uninsured
the Sue and therefore, property clause, sured order to minimize This takes cies. rule, operation prevent the usual' occurrence loss case out of the only may estoppel liable as to be run which the underwriter would and the policy, expenditures, not loss undertakes under the sue and labor clause expendi- peril. insured reimburse the assured for these named from the primarily tures which are made argument initially re- be benefit the underwriter either say sue since guiling. loss alto- duce or eliminate covered It seems supple gether. affirmatively protects the added Also it treated as and labor may ap coverage, policy position be each as to abandonment.11 mental 11. The clause been writing legal § both 139, v.Co. tect vent property.” take action 1952). such States underwriter may least, make clear the ance, not known lar dated 1613. serted in part clause, arable. Were contract that its ance, cede that “It contract, The Insurer’s brief 799a at 721-722 the import restitution or 143, in settled have been transpired the could Reliance duty to assured Ashby, duty [footnote the in minimize theAt Insurance, page 195 coverage provisions this other than one well such as the policies, invalid 7 insured 1848, when the ‘waiver,’ appears has not be held 2 toward the after an occurrence himself L.Ed. country is an Arnould, be is the case.” 1830, to labour this The latter would be forced been of detained bottom is the result between 26 stated loss. introduced, said it was as to any is property.” Winter, 809]; cites (1950). ancient one. 4 Pet. to words were first judicially o'f puts of the events Marine Insurance “The type step of marine insur part; privilege of the later underwriter Bond and Columbian clause the in ‘Tiger’ policy, the insurance part of the 139, the are not of insurance or in existence it had The clause in the United valid clear recognized origin assured’s .and (3rd damaged recovery Arnould, of simi 29 U.S. part to to con “It is short, Reli long duty pro pre way. *7 sep Ins. and in ed. to at British Mich.1943, take underwriter curred, the loss.” AMC the twofold. prevent 1957 Md., na v. 1922, and igently It ter. He was [b] Co. tion or ful and pra. in serving sentially isted ter, surer.” assured is inserted optional quiring obligation * * * Against imposes the modification taking v. purpose bind the to supra, 1957, AMC 915. steps National Union Fire 282 “Courts Liberty for the the & alleviate a threatened loss with either the alter the American necessary,’’ thus It “is F. under the Mercantile measures for the 151 no White Star S.S. Co. North 48 word duty implied by at 393. the assured use due “primarily when would be quoted 514, damaged property.” this of the clause is additional already Sand assured to take converting under have held that background of this F.Supp. F.Supp. diminish recovery ‘necessary’ the burden of to operation contractual 522. Merchant Marine Ins. & Gravel the see loss [a] with Compliance by bound 211, Republic duty liable if original language “it shall saving the amount of into an [1] encourage does for which the Co., Ins. of the clause. approval at law and re to labor dil does not es on mas note Co., Cir., duty the page which ex Co., D.C.E.D. v. occur to the property steps at diligence of Chi the in express purpose 3 inser is not 4, duty, least 1943 D.C. Win law 238, pre and oc the su
489 through the no contractual Taking analysis would be the —there obligation repay The the and labor. that since sue step, obvious next it is “coverage” therefore sue and labor is assured is to reimburse clause perils irrevocably satisfying as tied the insured expenses incurred coverage. By token, is where such underwriter, duty there the same to the sured’s coverage reflecting is one policy, for demand duty continued no such where underwriter, lack made pursuant action taken basic reason or another —either defense, for works coverage the assured an unwaived or his apply. under there- feiture, detriment when is The etc.—does right after demand declined. no writer has steps un labor sue and assured take the Consequently, actions of applicable. asser An is less significance far Insurer had which con is therefore tion of such demand potential lia transcended and labor sue only continued existence sistent with bility. conduct, assaying dowe In coverage. clear is made all This not, think the Insurer seems to very labor of sue and er nature do, Judge did or had either coverage. supplementary it is While salvage February at confine it spoken of in it is often true February sea activities went on from applicable terms, certainly does when February at Yacht least 19 when obligate above the underwriter over and brought shipyard in Miami. to the policy, specified dollar limits might uncertainty have Whatever there expression cau must be used being obligation position been about the Insurer into tion. comes only ultimately to minimize when the action taken is should decisions were take as prevent under pressure a loss for which made under considerable under during If writer would be February 12, prevailed liable. none following days. writer would not be liable at all—here six Continued ac personal salvage quiescence by use because of breach of the Ciconett, Home Ins. v. Co. expense whole of the sue labor principal * * * F.2d Its ulti he has incurred and without aim is mate clear. “Prevention loss regard to the amount the loss very object in view. It contem is plates whether been a has wheth- loss only benefit insurers salvage, though er there even * * Arnould, supra, § paid underwriter a total loss frequently 795. While it said that policy.” the main White Star S.S. *8 separate sue and labor “the clause is a Co., Co. v. North British & Ins. Merc. supplementary and is to the supra, insurance F.Supp. 808, 813, 48 1943 AMC pay of underwriter a contract 399. particular respect damage sum specific In addition to the references * * sustained White Star S.S. Co. above, following generally also bear Co., North & v. British Merc. Ins. su Arnould, on the clause. 1 Marine Insur pra, F.Supp. 812-813, 48 1943 AMC (13th 1950); ance §§ 22-23 ed. 2 Ar keyed obligation nould, supra, is 864-872, 799a; Ap §§ 6 liability the existence of on the under pleman, Insurance Law and §§ Practice peril. writer as to the loss from the named (1942); Templeman 3794-3795 & Green * * * expenses acre, "The must have been (4th Marine Insurance at 112-118 averting incurred with view to or min 1934); Winter, ed. Marine Insurance at imizing a loss for which the underwrit (3rd 1952); 393 ed. American pol er would have been liable under Liberty Merchant Ins. Marine Co. v. Sand Templeman icy.” Greenaere, & Co., Cir., 1922, 514; & Gravel 3 282 F. (4th 1934). at 115 ed. It Insurance Star White S.S. Co. v. North British & course, “separate,” of in the that Co., sense D.C.E.D.Mich.1943, Merc. F.Supp. 808, Ins. 48 to the assured reimbursement 399; 1943 AMC Ciconett to, beyond, Co., addition and over W.D.Ky.1948, Home v. 80 F. payable amount under or dollar lim Supp. 429, affirmed, Cir., 1950, 6 179 F. perils of, coverage. Republic its 892; named “Un of China v. 2d National Co., der this clause the assured recovers Fire Ins. Union D.C.Md.1957, 151 F.Supp. AMC 1957 490 serting imperative let- demands ostensibly pursuant to operations costly or run Assured these actions Assured take it from order exacted ter insurance. no the risk that he would continued
accompanied was with as essentially Judge lia- acceptance District on what is of The denial silence about reach question significant entitled circum- of fact was bility equally were conclusion, withstands the clearly which Moreover, taken the action stances. concept F.R.Civ.P. of Assured erroneous shipyard requiring that the nearly $1,- 52(a), U.S.C.A., conduct 28 expenditure of authorize the no fare preserve valua- would remove, marine underwriter 000 to clean on tradi water machinery better than would an insurer further salt from ble deterioration, them, law important, and, to tional land risks. As to more waiver, survey regarded permit were up ship is clear that whether clean properly estoppel, inconsistent wholly or more inconsistent likewise acts nonliability. prevent assured of the was to to the detriment former The reviving damage, contract related has the and the latter effect of further obligation unnecessary survey wholly if “forfeited” theretofore provis policy had been the contract breach of or other considered that And, warranty. ion.12 forfeited for breach compara- course, done in of this was ample through evi February 19 Court tive from leisure light early March, dence, detailed 52(a), determined F.R.Civ.P. home information furnished the incon were these actions the Insurer office, 7, supra, the action it was see note nonliability a known sistent with agents. merely its of the warranty, the Assured breach of and that to take had been induced this conduct presence Labor Sue es action to his detriment. This is necessity prompt an- Clause made estoppel, this conclusion sence and on position of the Insurer’s nouncement allowing the District Court correct more, less, emphatic. full With recovery thereon in both of the actions knowledge February 12 on expenses concerning and for loss for sue and labor which the charter exact facts tardy peril. denial was alone the basis for to the named due liability later, the Insurer weeks three as- Affirmed. time stood silent at the same while ing where, Appleman, its course of deal- Insurance Law and See open ing, actions, 9253-9254, Practice, 9081-9096, induced or its it has §§ pursue discussing (1944) especially of con- the insured course § Appleman, conceptual to his detriment.” waiver duct differences between estoppel. ordinarily supra at 623-624. “A § “It must versus * * * forfeited be revived had has been shown the insurer par- contracting constituting knowledge mutual consent facts policy may forfeiture, a void also be re- ties. And breach *9 unequivocal by a result of a waiver insurer some act rec- instated as Appleman, supra policy ognizing 6 § Insurer.” 4150 the continuance of the wholly which was inconsistent with Tinsley Aetna, Appleman, supra 1918, v. 16 See also 199 § a forfeiture.” 78; Mo.App. 693, 205 General Ac 9086 at 616. “Since forfeitures are not S.W. Corp. law, & Life Assur. Fire v. favored in the insurance com- cident Schero, an Cir., 1945, (in pany 151 F.2d a 5 825 not forfeiture where set McMurry law); volving by Kahmann & Florida course of conduct it has induced its Co., provision Ins. . Aetna in that a belief the insured a v 20, 29; upon Hilton F. v. Federal will for * forfeiture be insisted not * * Cal.App. 648; Co., 1931, 495, 5 P.2d in [and] instances Ashford, Tex.Civ.App. interpose estoppel Life v. Bankers will safe- courts 858; Am.Juris, guard rights policy 29A 139 S.W.2d holder. deny- Insurance, § The will insurer Judge (concur- HUTCHESON, Circuit LUSSAN,Appellant, Eugene J. part). dissenting ring part in in v. opinion and the I concur in While GRAIN DEALERSMUTUALINSUR case, admiralty 18017, the in result No. COMPANY,Appellee. ANCE opinion result I dissent both No. 18234. in No. Appeals Court of United States by was policy Reliance issued The Fifth Circuit. containing pleas- yacht policy, 17, 1960. June warranty follows: ure the Assured “Warranted solely for vessel shall be used private pleasure purposes shall ap- unless not chartered be hired or permis- proved by Assurers, and hereon.”
sion endorsed undisputed, indeed
The evidence was express admitted, war- was that this deliberately
ranty breached chartering yacht for char- insured per day. charter-
ter hire of $125.00 er, young lady, friends, and two charter,
captain employed took the for the Islands, where the
vessel to Bahama Cay. aground vessel was run near Cat is, court result decision of the of the my theory opinion, of es- make the coverage toppel operate to extend the provided in, only risk not
prohibited by, insurance. my view,
In is no basis whatever record for the result reached case.
I was a member court de- Lineas, Travelers, Cir.,
cided v. etc. F.2d here as au- cited court vig-
thority conclusion, for its and I must
orously from the idea that that dissent deals similar
case with a situation to that
existing authority here or furnishes reached result here.
for the What that is case is that an involved flagrantly
express breach- against insured, loss to
ed, and contract, did the insurer is
which it *10 pay. Convinced as I am made by supporting opinion, theory case, good prin- estoppel runs Hattier, Orleans, in this La., B. New John ground, I appellant. Dissent. cipal into