*2
HATCHETT,
Before HILL and
Circuit
*,
Judge.
Judges, and
District
ALLGOOD
ALLGOOD,
Judge:
District
Company
United States Fire
Fire)
(U.S.
action for declara-
brought this
tory judgment
Cathy Ca-
against Gene and
vanaugh,
judgment
it was
seeking a
damage
for
suffered
not liable
trawler,
Cavanaughs’ shrimp
the “Serious
Cavanaughs
counter-
Business.”
The dis-
loss.
claimed
recover
Cava-
judgment
court entered
for the
trict
appealed.
naughs and
Fire
U.S.
Cathy Cavanaugh
were
Gene
Business” at
owners
the “Serious
aground
it ran
on June
time
burned
Cavanaughs
purchased
had
Lennis,
father,
in Au-
trawler
Gene’s
time Lennis Cava-
gust,
During
times,
naugh
and at all
owned the trawler
Cavanaugh voyage,
until its final
Gene
May
Cava-
captain.
Gene
recovering
pox
from chicken
naugh was
agreement with
a charter
and entered into
*
Allgood,
sitting by designation.
U.S. District
Honorable Clarence W.
Alabama,
Judge from
District of
the Northern
October,
“Serious
take the
Ballard to
C.
Fire instituted this
William
oper-
action for a
shrimping.
declaratory judgment
Ballard was
Business”
Augustine,
contract. The
St.
coun-
trawler between
ate the
terclaimed, contending
Texas,
Brownsville,
and was
loss was due to
Florida, and
the barratry of
Ballard
thus a covered
limit
navigational
mile
of a 150
informed
*3
loss. The
court
district
found that
the
which
policy
in the insurance
warranted
hiring of
fishing expedi-
Ballard for the one
Cava-
Business.”
the
“Serious
tion did not constitute a change manage-
primarily
Ballard
naugh apparently hired
ment
violation
the
him on a
did take
reputation,
on his
but
and that Cavanaugh had
due
exercised
dili-
the trawler’s
to
prior
cruise
“shakedown”
gence to properly man the vessel. The
to
Ballard was
May
departure on
court went on to find that there was no
any problems
Cavanaugh if he
contact
authorized,
evidence that
the
port.
the
put in at
When
he
or when
to,
agreed
any way
were in
involved in
Island, Florida, May
on
trawler left Stock
Ballard’s
operate
decision to
the trawler
experi-
Cavanaugh’s
and two of
Ballard
beyond the 150 mile limit and concluded
only people
the
members were
enced crew
that that act amounted to barratry and was
on board.
proximate
cause of the loss. Final
14, 1981, the Coast Guard noti-
On June
judgment was entered in favor of the de-
Cavanaughs that
fied the
the “Serious
fendant, including prejudgment interest at
aground
was
burning
Business”
and
per year
the rate of
from
date
12%
Bajo
Reef
Neuvo
about 150 miles south-
the loss.
day,
peo-
eight
west of Jamaica. The next
appeal,
On
U.S. Fire contends that the
rescued
ple were
water near
district court
in finding
erred:
remains of the trawler. Ballard has not
policy was in
loss;
force at the
time of
again.
been
nor heard from
seen
determining
proxi-
was the
Business” was
The “Serious
insured
cause of
mate
the loss of the “Serious
purchased
at the time it was
U.S. Fire
Business”;
awarding
and in
prejudgment
Cavanaugh
that policy
re-
Lennis
was
interest.
Cathy Cavanaugh.
by Gene and
newed
dispute
There is no
the “Serious
provided coverage
The
for the “bar-
beyond
Business” was
mile limit
ratry
the masters and
all
mariners and
aground
when she ran
and burned. U.S.
perils____” However,
like
the trawl-
points
Fire
to several cases which state
being
er was covered
when it was
that insurance
suspended
when
operated
Cape Hatteras,
between
North
goes beyond
a vessel
the navigational lim-
Brownsville,
Carolina,
Texas,
and no
during
its and that a loss
that time is not
further than 150
Bajo
miles offshore. The
covered.
v.
Robinson
Home Insurance
approximately
Neuvo Reef is
400 miles be- Co.,
(5th Cir.1931);
Canton In-
yond the covered area.
Independent Transp.
Office
Fire was
advised of the
but Co.,
(9th Cir.1914);
with proximate the loss accidentally, if then there would have even ground Business” “Serious and there burning Bajo Neuvo Reef. coverage. been no insurance would have admiralty truly cases the “cause which is Business”, however, was tak- “Serious is that which beyond the warranted en some 400 miles efficiency.” Steamship Lanasa Fruit act of third limits the unauthorized Indemnity Co. Universal Insurance written and party in of both ver- violation 556, 563, 371, 374, agreements, an act bal by grounding Loss L.Ed. insured. What would Cavanaughs were *4 specifically fire under in was covered the warranty is a of not a have been breach policy. barratry, grounding Since the mile in this case where limit breach perils and fire were act all covered the the barratrous acts due to of was exceeded barratry operate of cannot to the Ballard. coverage, the void decision of finding the actions of Bal the Fire is district court that U.S. liable barratry, adopts this court lard constituted the policy under the loss must be af barratry of district court’s definition the To otherwise find firmed. hold to guidelines set forth which follows operate peril one covered could to re (1) Barratry can be defined our circuit. any lieve the insurer of loss which occurred by the or mari an act committed master peril.2 from another On the covered issues ship involving a ners of a deliberate misrepresentation by of the owners and disobeyance instruc of owner’s willful diligence properly failure to due to exercise tions, (2) act the master or an committed vessel, clearly sup man the the evidence unlawful, ship a for some dis mariners of ports findings. The the trial court’s award honest, contrary purpose, fraudulent or rule prejudgment of interest in admi owners, whereby duty their lat ralty exception eases rather than the (3) every injury, an or ter sustained viola part this error of the court finds no duty by master or tion of mariners ordering. district court in so culpable negligence arising gross and AFFIRMED. duty to contrary to their the owner. See Indemnity Co., v. Travelers Darien Bank HILL, Judge, (5th Cir.1981); JAMES C. Circuit dissent- Fishing ing:
Fleet, Inc. v. Trident Insurance majority because the has mis- dissent barratry of in this this circuit has held that barra- construed role Because predi- gross culpable negligence majority’s drama. The can be try covers result mariners, only upon cap- that the by the or it is clear that cated a master conclusion barratry insurance cov- barratry also include tain’s extended the the definition must against judge reasoning peril similar was or was not a ... 2. The district followed Republic to that the court in China v. the loss is exclud used where the cause of ultimate National Union Fire or an exclu ed from aff'd, (D.Md.1957), Cir. clause, recovery may not be had on the sion 1958), barratry. grounds of (1958): L.Ed.2d 64 Id. at 231. barratry one of the causes of the [W]here Although case in this fact situation (such stranding the ultimate cause here, if finding princi lend itself to similar coverage by capture) or is not excluded from ple granting is con where clause, recovery a may exclusion (here, of the loss nected to the ultimate cause barratry, be had on fire) is the same. of the loss the ultimate cause whether (“F.C. S.”) it, of the the result barra- erage. subjudi- As Clause. The case coverage. It try the owner’s was ce involves detention or seizure owner, grievous loss to but not was a specific vessel such that a exclusion from against which the the losses one of coverage applies. The vessel out- coverage. provided side the territorial limits of coverage against the loss of provide did not the barratry master, a result of it insured coverage; loss of its own a covered which is loss under “Per- matters, In maritime the in- the vessel. Moreover, of the policy. ils” clause recover if sured following language Court notes policy proximately causes the from the Blaine & Richards case: Co. the vessel. In this the vessel time, single At the same lost as a result of Bal- was not nearest the loss in time should barratry;1 grounding proximately lard’s necessarily proxi- be found to be the the loss of the vessel. caused mate cause. In- [Citation omitted.] does not cover specifically losses stead, in accord with the reasonable (or occurring perils) more groundings understandings expectations offshore; therefore, 150 miles than parties, we attempt must to ascertain judgment of the should district court Supreme what the Court has referred reversed. “predominant to as the and determin- that Ballard’s ing” or the “real efficient” cause *5 vessel, of the court district the loss Determi- [Citations omitted.] following findings made the of fact and of nation cause in these conclusions of law: cases is thus a matter of com- applying Captain barratry was the Ballard’s judgment mon sense reasonable proximate cause of the the vessel. alleged. source to the of the losses Bank, supra, Darien 654 F.2d at See 1054-55. 1019-22; Fleet, Inc., Fishing supra, 598 Thus, judge the district bar- concluded that at 927-28. His F.2d deliberate will- reef, ratry, running aground directly misconduct ful caused the legally opinion the loss. The fire grounding, and destruction of the that, majority apparently concludes al- The eases the Plain- vessel. cited though grounding caused the the bar- contrary tiff/Counterdefendant for a ratry coverage beyond extended the cases, proposition inapposite. Those Both warranted limit. the district court Richards & Co. v. Marine In- Blaine are, majority believe, and the I in error. demnity Company Insurance Ameri- of analyze Cir.1980) Before cases cited ca, (2d F.2d 1051 and Nau- 635 judge parties, district it will be Charter, Edinburgh Inc. v. tilus helpful precisely to (D.Md. determine and Co., define F.Supp. 510 1092 Insurance 1981), presented.2 the issue covers opinion, published without aff'd specified (4th Cir.1981), perils including barratry and F.2d involved 673 1314 not, however, vessels, grounding. The detention or of where the seizure provide specified perils for the if policy specifically insurance excluded (150 warranty off- such the territorial miles detention or seizure shore) Despite majority’s under the and Seizure Capture Free from breached.3 discovered, accept problem majority’s of Bal- than view more characterization Co., purposes Georgia lard's actions as dissent; however, of this half solved.” Ellison Railroad 87 for 706-07, 691, my 13 S.E. resolution Ga. 809 because of case, I see no issue and pass need to on that express provides, opinion propriety pertinent part, "war- therefore 3. The to the majority’s navigation ranted confined to U.S. coastal conclusion. Hatteras, tributary Cape waters inland Brownsville, inclusive, Texas, Bleckley Georgia Chief Justice As Su- N.C. to both noted, preme right point Court "when to exceed 150 miles therefrom.” offshore
837
opinion,
grounding
possible
cannot be covered
when the direct cause
clearly
poli-
it
because
occurred outside the
of the loss was excluded by warranty.
The insured
precludes recovery
cy’s
ed”
ance
368,
dent in this circuit a
burn Boat Co. v. Fireman’s Fund Insur-
150-mile limit. Under the clear
dard Oil Co.
340
as the
court stated in
China v.
135, 137,
National Union Fire
(1950).6
Insurance
S.Ct.
95 L.Ed.
(D.Md.1957),
aff'd, Simply stating
the doctrine of causa
(4th Cir.),
F.2d 177
próxima
spectatur
non remota
not,
(1958),
Lords, nould’s exception ence “explained” nould’s Law of Marine Insurance & Aver- age may be considered. thority, although cient cause doctrine does not apply in cases validity may the treatise barratry, H765 has A.C. see John treatise “well-established,” states, questioned by ed. states questioned, that more remote causes its (Blackburn, L.J.),7 and, 1981). factors, weight, effect, & Sons v. exception generally Although the House of thus render- its exist- the effi- may Burr, Ar- Ar- phasis added); coverage by warranty clause, recovery may not be had on the mate cause ture) is not excluded mate cause of loss was or was be had whether or not the ulti- ery may ultimate cause is one of the against____ at 231 or an exclusion barratry. see also causes of the the loss is excluded (such (citations But Nautilus stranding or an exclusion where the ulti- coverage by a clause, omitted) (em not a recov- if the cap- Edinburgh Charters v. applicability its unclear. Arnould’s F.Supp. 1092, 765.H That somewhat dispute (D.Md.1981) ancient (quoting here, need Republic China), however, not be resolved mem., be- aff'd 6. The Lanosa Court Leyland Shipping Co. v. Norwich Union Fire In- Lords). notion of ment but the That various influences meet was the The chain of causation is links in topic though truly impaired cient sprung up which have the a forces, cribed. proximate meet; as the tends cause. result of which it still remains mate is that which is tinct from one is nearest Causes are What does chain, To treat proximate upon question. causes has to be referred to—it efficiency may cause to which the event can be as- Society, infinitely. Lord figure events, proximate and which was the remote but a net. At each a matter of cause as if it was the cause which próxima the radiation from each thus in time is out of the spoken chain, ‘proximate’ in time Shaw, The [1918] causes it, another as beads in a row or precedent and joined inadequate. Causation is not and it At the quoted cause. cause which is but—if this of as if causa as the cause which fact to declare which of is, have been A.C. yet may at the it is for the here mean? To treat not point where these I have aptly explains the handy expression, they were point meantime have following destroyed culminate in a point 369 simultaneous, preserved in the real effi- metaphysical said, truly proxi- influences, efficiency. wholly (House judgment point question. of effect as dis- out of state- it, ex- so. al- 7. Lord Blackburn stated: Lord Bramwell also infra ties that The Justice Brett seemed to to there. the Court rightly) passage the book, and that the to the remote that in a try cited as surance am at though certainly one, there laid down that whilst it is in vol. Mr. Justice Field and Lord Arnould on in the first edition no other A note 5. and that the remote cause general were passage *7 authority part it is. there is an very protest against that this was a present ii., p. consequence. from Arnould law. that the cause of loss was being entitled to thought rightly wrongly I can instances which are authority rule is that in insurance the Insurance, was cited from the last edition of 838 of consequence For of that statement advised to not think that it is. an established exception subject. only say my addressed be indemnified was not a the first edition. He has what Sir for such a rule- own That is all I which I now find was suppose naturally I Joseph that I think there is in the case of barra- of insurance for which the instances in which am part may principle the merely putting I do not think very given Arnould, be hereafter in the text- issue. rule; be looked say upon barratry, you true that (I remote in the law, of in- think look par- it is See I
839
loss,
the efficient cause
ratry was
denied,
Cir.1981), cert.
456
(4th
U.S.
1314
Cavanaughs may not recover.
the
(1982).8
468
72 L.Ed.2d
945, 102 S.Ct.
John
Manufacturers
gin
393; mon than cases
Ope Shipping, Ltd. v. Allstate Insur-
a standard
the
Republic of
or the
tain
(2d Cir.1982),
ance
cluded
See
& clause. cause of the
specifically excluded
aff'd
must
express
ta
stated,
150-mile
The instant
followed
s.)
Merchants
ship will
attempted
Charters
district court
be the
equivalent are
“the
warranty by the
part,
limit.
that,
1523,
nied, L.Ed.2d America,
UNITED STATES
Plaintiff-Appellee, HYDER,
Leo Calvin
Defendant-Appellant.
No. 83-3741
Non-Argument Calendar. Appeals, Court of
United States
Eleventh Circuit.
May 17, 1984. Horwitz, Fla., Orlando,
Mark L. de- for fendant-appellant. Purcell,
Stephen Atty., L. Or- Asst. U.S. lando, Fla., plaintiff-appellee. HILL, and HENDER- JOHNSON Before SON, Judges. Circuit
