Marquette Transportation Co. v. Louisiana MacHinery Co. ( 2004 )


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  •                                                           United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    April 16, 2004
    FOR THE FIFTH CIRCUIT
    Charles R. Fulbruge III
    Clerk
    No. 02-30949
    MARQUETTE TRANSPORTATION COMPANY, INC.,
    Plaintiff-Counter Defendant
    Appellant-Appellee-Cross-Appellant,
    BLUEGRASS MARINE, INC.; IOWA FLEETING SERVICE, INC.;
    ZURICH AMERICAN INSURANCE COMPANY, INC.; THE WATER
    QUALITY INSURANCE SYNDICATE
    Plaintiffs-Appellants,
    versus
    LOUISIANA MACHINERY COMPANY INC., Etc; ET AL,
    Defendants,
    LOUISIANA MACHINERY COMPANY INC., doing business as Louisiana
    Machinery Power Systems;
    Defendant-Appellee,
    QUALITY SHIPYARDS, INC.
    Defendant-Counter Claimant
    Appellee-Appellant-Cross-Appellee
    --------------------
    Appeals from the United States District Court
    for the Eastern District of Louisiana
    --------------------
    Before HIGGINBOTHAM, SMITH, and WIENER, Circuit Judges.
    WIENER, Circuit Judge:
    The plaintiff-appellants in this maritime action were the
    owners and operators of the M/V KAY ECKSTEIN (the “KAY”) and their
    insurers (collectively, “Plaintiffs”). The KAY was a triple screw,
    steel hulled push boat which was originally constructed in 1973.
    In 1999, the KAY’s three Caterpillar 3606 engines, which had been
    installed in 1992, were overhauled and other extensive renovations
    were performed        by    defendant-appellant       Quality        Shipyards,    Inc.
    (“Quality”)     and    defendant       Louisiana      Machinery       Company,     Inc.
    (collectively, “Defendants”).               After the work was completed, the
    KAY successfully underwent dock and sea trials and was returned to
    Marquette,    which        operated   the    vessel   for      five    weeks    without
    incident.     Late in May 1999, however, a catastrophic engine-room
    fire led to the KAY’s total loss.
    Plaintiffs sued Defendants for maritime negligence and breach
    of express and implied warranties of workmanlike service.                       Quality
    counterclaimed seeking attorneys’ fees and court costs.                         After a
    bench trial, the district court concluded that (1) Marquette had
    not carried its burden of proof with regard to negligence and
    causation,    but     (2)    Quality’s      counterclaim       was    without    merit,
    notwithstanding the repair agreement’s indemnity provision.                        Both
    sides appealed.       Although we see no reason to disturb the district
    court’s disposition of the negligence and breach of contract
    claims, we conclude that the trial court erred in interpreting the
    indemnity    provision        here    at    issue   and   in    denying    Quality’s
    counterclaim.
    I. Facts and Proceedings
    2
    The KAY underwent extensive maintenance and repair work in
    1998-99,   including   the   overhauling   of   its   three   Caterpillar
    engines; designing and fabricating kort nozzles and I struts around
    its screws; removing, modifying, and reinstalling the screws,
    rudders, and shaft lines; and testing and delivering the vessel.
    The engine overhauls included installing new fuel and oil filters
    and resealing and rebushing the oil pump.       The contract price for
    the work was $870,000.
    None of the KAY’s crewmembers witnessed the start of the fire,
    although one crewman had been in the engine room thirty minutes
    prior to the fire’s estimated start time.         The KAY lost engine
    propulsion approximately thirty minutes after the fire was first
    noticed, and sank shortly thereafter.       After the KAY was raised
    from the river approximately 10 days after it had sunk, Plaintiffs
    discovered that the check valve fittings on the center main engine
    were loose.
    At trial, Plaintiffs’ primary contention was that Defendants
    had improperly torqued (tightened) the check valve fittings on the
    KAY’s center main engine.     According to Plaintiffs’ theory, those
    under-tightened fittings had been gradually loosened by engine
    vibration, eventually allowing a fuel spray to develop. Plaintiffs
    advanced several potential ignition sources, the most probable of
    which —— according to Plaintiffs —— was the exhaust pipe of the
    generator’s diesel engine.      When the trial ended, the district
    court concluded that Plaintiffs had not carried their burden of
    3
    proof with regard to either fault or causation, and held for
    Defendants.     Plaintiffs argue on appeal that the district court
    erred as a matter of law by holding Plaintiffs to an improperly
    high burden of proof.
    Quality counterclaimed for the attorneys’ fees and costs it
    incurred in defending the suit, basing its claims on the repair
    agreement’s indemnification provision, which by its terms applies
    to such expenses:
    Each party agrees to defend, indemnify and hold harmless
    the other party’s indemnitees free and harmless from and
    against any and all suits, claims, or liabilities
    (including, without limitation, the cost of defending any
    suit and reasonable attorney’s fees).
    When it first considered the indemnity provision, the district
    court granted Quality’s motion to exclude parol evidence on the
    question of the parties’ intent, holding that the terms of the
    provision were unambiguous.     The court denied Quality’s motion for
    summary judgment on this claim, however, indicating that the
    indemnification     provision   would   not    be    enforceable   if   the
    Defendants had acted with gross negligence.           The district court
    subsequently ruled that although Quality was not negligent in this
    matter,   the   indemnity   provision    had    to   be   interpreted   in
    conjunction with the other provisions of the repair agreement.           As
    the agreement required each party to obtain specified insurance
    policies, concluded the district court, the proceeds of those
    policies were intended to be the “primary payer” of the subject
    damages, ahead of the contract’s indemnity obligations: “There is
    4
    no logical way to reconcile the indemnity provisions and the
    mandatory insurance provisions ... other than to find that the
    parties intended that the insurance coverages be exhausted prior to
    the indemnity obligation being triggered.”1
    In reaching this conclusion, the district court relied on Ogea
    v.   Loffland         Brothers        Company2      and      Tullier    v.       Halliburton
    Geophysical Services, Inc.,3 cases in which each party to an
    indemnity    agreement        was       required      to     name     the    other    as   an
    “additional      insured”        under     the      mandated        insurance      policies.
    Quality argues that because there was no requirement in the instant
    contract to name the party opposite as an additional insured,
    Marquette was not entitled to any benefit from the insurance
    policies    at       issue.      As    such,       insists    Quality,      it    should   be
    reimbursed by Marquette under the terms of the indemnification
    provision without regard to those insurance policies. The district
    court took       a    “broader    view,”       finding       that    the    “existence     of
    mandatory reciprocal insurance obligations” was determinative,
    despite the fact that, unlike the situations in Ogea and Tullier,
    the instant obligations did not require that the other party be
    1
    Marquette Transpo. Co., Inc., et al., v. Louisiana Mach.
    Co., Inc., et al., 
    2002 WL 1809092
    at *18 (Aug. 7, 2002).
    2
    
    622 F.2d 186
    (5th Cir. 1980).
    3
    
    81 F.3d 552
    (5th Cir. 1996). The district court also relied
    on In Re Diamond Services, 2001 U.S. Dist LEXIS 6812 (May 16,
    2001), a district court case that we affirmed in an unpublished
    opinion.
    5
    named as an additional insured.4        Quality thus maintains that the
    district court’s ruling constitutes an unwarranted extension of our
    precedent.
    II. Analysis
    A.   Standard of Review
    We review the district court’s conclusions of law —— including
    its contractual interpretations —— de novo.       We review findings of
    fact for clear error.5
    B.   Burden of Proof
    Plaintiffs    must    show   negligence   and   causation   by   a
    preponderance of the evidence.6     Marquette correctly notes that in
    a fire case, these elements frequently must be established by
    circumstantial evidence because of the fire’s destruction of the
    physical evidence.7        Even so, the evidence available must be
    sufficient to find both negligence and causation.8      We address each
    in turn.
    1.   Negligence
    4
    Marquette Transportation, 
    2002 WL 1809092
    at *18.
    5
    See, e.g., Dow Chem. Co. v. M/V Roberta Tabor, 
    815 F.2d 1037
    , 1042 (5th Cir. 1987).
    6
    See, e.g., Boudreaux v. American Ins. Co., 
    262 La. 721
    , 762-
    63 (La. 1972).
    7
    See Id.; Minerals & Chems. Philipp Corp. v. S.S. Nat’l
    Trader, 
    445 F.2d 831
    (2d. Cir. 1971).
    8
    See, e.g., 
    Boudreaux, 262 La. at 761-63
    .
    6
    The district court correctly noted that, to assess whether
    Defendants were negligent, the court first had to “determine
    whether it is more probable than not that the couplings were loose
    at the time the vessel left the shipyard or whether vibration or
    heat from the fire likely loosened the fittings.”9                 This task was
    complicated by the fact that the KAY had been under water, exposed
    to river currents and elements, for some 10 days before it was
    raised and examined.           Furthermore, when Plaintiffs’ representative
    examined the KAY and reported that the check valve fittings at
    issue were loose, he neglected to mark the fittings in any way that
    would record for posterity just how loose they were.                         Instead,
    Plaintiffs’      representative       relied    on    “his   degree     of    ‘gentle
    shaking’ and his ability to rotate the fittings” to estimate their
    condition at the time of the fire,10 but this “measurement” was
    performed after the fittings had been subjected to (1) the extreme
    heat of the fire and (2) the currents of the river.
    Because     of    these    factors,     the    district   court    relied     on
    circumstantial evidence to extrapolate the status of the fittings
    as of the time that the KAY had left the shipyard.               The court noted
    that during the KAY’s five weeks of operation prior to the fire,
    there had been no evidence of a loose check valve fitting; that is,
    no   crew     member    ever    saw   fuel    seeping   or   spraying        from   the
    9
    Marquette Transportation, 
    2002 WL 1809092
    at *6.
    10
    
    Id. at *5.
    7
    connection.11 Therefore, reasoned the district court, one important
    question is “if the fittings were improperly tightened before the
    vessel left the shipyard, would the fittings have leaked at some
    point after the ship left the shipyard and prior to spraying fuel
    on the date of the fire?”12        On this question, there was trial
    testimony from more than one source that if the fittings were loose
    because they had been improperly torqued, a leak likely would have
    developed as soon as the engine was cranked and pressure built up.13
    Further complicating Plaintiffs’ negligence theory is the fact
    that it is not clear who reinstalled the fuel transfer line after
    the engine mountings were drilled. First, there was no notation on
    any   written    record   indicating   that   Defendants’   employees   had
    performed that task.14        Neither did the check valve fittings
    themselves need to be loosened for the fuel pump to be reinstalled.
    Finally, record evidence indicates that Marquette personnel ——
    including an engineer —— were at the site when the work was
    completed.      As those employees had previously performed some work
    on the engine, it is at least possible that Plaintiffs’ own
    11
    This was so despite hourly engine-room inspections on the
    day of the fire, including one just 30 minutes before the fire
    broke out. Previously, however, one of the KAY’s crewmembers had
    found a loose check valve fitting on the port engine, which he
    tightened to avoid complications. See Marquette Transportation,
    
    2002 WL 1809092
    at *6-7.
    12
    
    Id. at *6.
          13
    See 
    Id. at *8,
    *10.
    14
    See 
    Id. at *3.
    8
    employees participated in the reinstallation of the pump.                 Given
    the lack of evidence suggesting that the check valve fittings were
    loose when the KAY left the shipyard, and the lack of evidence that
    Defendants’      employees       alone   were   responsible    for   improperly
    torquing the fittings if they were in fact loose, the district
    court concluded that “Plaintiffs have not proved by a preponderance
    of the evidence that there was any contractual breach or maritime
    negligence by either defendant.”15
    2.   Causation
    The district court was equally unimpressed by Plaintiffs’
    causation theory. Experts on both sides testified that, over time,
    engine     vibration     could    further     loosen   an   improperly   torqued
    fitting, eventually leading to a spray of fuel; and that it was
    hard to know how long it might take for such a spray to develop.
    Defendants, however, produced experts with significant experience
    working with the flared valve fittings here at issue (experience
    the Plaintiffs’ experts did not have), who ventured that it would
    be “highly improbable” for loose fittings to move from no leak to
    a full-blown spray within the 30-minute period involved in this
    case.16
    Defendants created a model of the center main engine to
    demonstrate that even a check valve fitting improperly torqued to
    15
    
    Id. at *15.
          16
    
    Id. at *8.
    9
    the degree alleged by Plaintiffs would not produce a fuel spray
    that could reach what Plaintiffs identified as the most likely
    source     of   ignition   ——   the    diesel    generator   exhaust   pipe.17
    Defendants also produced a fire expert who stated that the absence
    of a specific “flash pattern” indicated that the fire did not start
    in the area alleged by Plaintiffs.18            In other words, even if the
    check valve fittings were loose when the KAY left the shipyard, it
    is unclear that those fittings could have caused the fire under
    these circumstances, much less that in fact they did so.                  The
    district court found for Defendants on this issue, concluding that
    “Plaintiffs have also not met their burden of proof with respect to
    causation.”19
    3.   Plaintiffs’ contentions on appeal
    On appeal, Plaintiffs argue that the circumstantial evidence
    they produced was sufficient for a finding of liability by a
    preponderance of the evidence, given how that standard has been
    interpreted in the applicable case law.           The district court, argue
    Plaintiffs, held them to an inappropriately high burden of proof on
    negligence and causation.             For support, Plaintiffs cite cases
    17
    
    Id. at *12-13.
    Again, the model dealt with the degree of
    improper torquing alleged by Plaintiffs; because the check valve
    fittings were not marked after Plaintiffs’ original inspection, it
    was impossible to say how loose the fittings were when the KAY was
    raised from the river, much less how loose they might have been at
    the time the fire started.
    18
    See 
    Id. at *10.
          19
    
    Id. at *15.
    10
    discussing the burden of proof in fire cases, which stand for the
    propositions that (1) circumstantial evidence may support a finding
    of negligence and causation,20 (2) a plaintiff’s proof need not
    exclude or eliminate every other possible cause of the fire,21 and
    (3) a plaintiff need not establish the method or point of ignition,
    but only sufficient circumstances implicating the defendant.22
    Plaintiffs’ arguments on this issue ultimately fail, as all
    the cases that they cite contain circumstances allowing for strong
    inferences of negligence and causation —— circumstances not present
    in the instant case.      In Boudreaux v. American Insurance Company,23
    for   example,    the   restaurant   that   burned   down   was   under   the
    exclusive control of the defendants on the evening of the fire,
    which started after hours. Similarly, in Hanover Insurance Company
    v. Jacobson-Young, Inc.,24 a fire broke out because Jacobson-Young
    employees had improperly stored flammable materials in an area
    where only Jacobson-Young employees were allowed.           The other cases
    20
    See, e.g., Boudreaux v. American Ins. Co., 
    262 La. 721
    (La.
    1972); Valiant Ins. Co. v. City of Lafayette, 
    574 So. 2d 505
    (La.
    App. 3 Cir. 1991).
    21
    See Universe Tankships, Inc., v. Pyrate Tank Cleaners, Inc.,
    152 F.Supp 903, 922 (S.D.N.Y. 1957).
    22
    See, e.g., Hanover Ins. Co. v. Jacobson-Young, Inc., 
    294 So. 2d 564
    , 567 (La. App. 4 Cir. 1974).
    23
    
    262 La. 721
    (La. 1972).
    24
    
    294 So. 2d 564
    , 568 (La. App. 4 Cir. 1974).
    11
    cited by Marquette are similarly distinguishable.25   Additionally,
    all the cases ultimately detail the same burden of proof, which the
    plaintiff meets when “the inferences from the testimony are such as
    to persuade that the occurrence of an essential fact was more
    likely or probable than its non-occurrence.”26
    In the cases cited by Plaintiffs, the fact patterns were such
    that the circumstantial evidence was sufficient to find liability.
    Here, in contrast, (1) there was credible expert testimony on both
    sides, (2) the KAY had been out of Defendants’ control for more
    than a month before the fire, and (3) the destruction caused by the
    fire made it difficult to discern the cause. In combination, these
    facts made it difficult for Plaintiffs to prove their theory of the
    accident, even by a preponderance.    And, in its capacity as the
    finder of fact, the district court concluded that Plaintiffs had
    25
    In Universe Tankships, Inc., v. Pyrate Tank Cleaners, Inc.,
    152 F.Supp 903 (S.D.N.Y. 1957), it was apparent at trial that
    defendants had negligently used critically weakened pyrex bowls for
    the lamps inside the tank, negligently failed to install non-
    sparking metal guards or cages on those bowls, and negligently
    permitted its employees to work inside the tank at a time when the
    tank had not been tested for its toxic and explosive gas content.
    In addition, the court found plaintiffs’ expert witnesses
    “impressively reliable and persuasive.” 
    Id. at 907.
           U.S. v.
    Standard Oil Co. of California, 
    495 F.2d 911
    (9th Cir. 1974) is a
    similarly distinct situation: the court in that case explained that
    circumstantial evidence could suffice to find negligence and
    causation in the course of upholding, not overruling, the trial
    court’s negligence determination. (“Our review of the record
    reveals substantial circumstantial evidence ... which supports the
    district court’s finding ....”). 
    Id. at 916.
         26
    Universe Tankships, 152 F.Supp at 920 (quoting United States
    v. Masiello, 
    235 F.2d 279
    , 286 (2d. Cir 1956)(Judge Frank,
    concurring).
    12
    failed to carry this burden, labeling their theory as “improbable,”
    and “possible, but unlikely.”27
    Plaintiffs make two additional arguments about the district
    court’s methodology, both revolving around the claim that the court
    put them to an improperly high burden of proof.            Plaintiffs argue,
    for example, that the burden shifted to Defendants to propose an
    equally probable cause of the fire after Plaintiffs met their
    burden by demonstrating negligence.             This argument, of course,
    presumes that Plaintiffs actually met their burden in the first
    place, and is undermined by the district court’s facially logical
    —— and apparently proper —— conclusion that they had not done so.
    Similarly, Plaintiffs argue that the district court improperly
    “impos[ed] ... a requirement to prove the exact mode and point of
    ignition.”      The district court did note that it “reject[ed] the
    notion that such a [fuel] spray permeated the elbow joint of the
    diesel generator exhaust in an amount sufficient to ignite.”28 This
    statement,      however,   is   merely   part   of   the   district   court’s
    discussion of the strengths and weaknesses of Plaintiffs’ case.
    And, that discussion of the ignition point matters little in the
    overall context of this case, as the district court also found that
    the other elements of Plaintiffs’ fire theory were improbable and
    27
    Marquette Transportation Co., Inc., et al., v. Louisiana
    Machinery Co., Inc., et al., 
    2002 WL 1809092
    at *14 (Aug. 7, 2002).
    28
    
    Id. 13 that
    there was no contractual breach or maritime negligence by
    Defendants in any event.29
    In sum, we perceive that the district court did weigh the
    conflicting evidence —— all of it credible —— and concluded that
    Plaintiffs had not proved their theory of the accident by a
    preponderance of the evidence.             That there are many fire cases in
    which the plaintiff was able to bear his burden with purely
    circumstantial evidence does not automatically make the district
    court’s approach —— or its conclusion —— erroneous.
    C.   Indemnification
    Quality’s counterclaim, as noted, is based on the repair
    agreement’s indemnification clause, which binds the signatories,
    Quality and Marquette.            That clause provides, in relevant part:
    Each party agrees to defend, indemnify and hold harmless
    the other party’s Indemnitees free and harmless from and
    against any and all suits, claims, or liabilities
    (including, without limitation, the cost of defending any
    suit and reasonable attorney’s fees) for loss or damage
    to property owned, leased or operated by the indemnitor,
    regardless of cause, including the negligence or other
    legal fault of any of each party’s Indemnitees.30
    Quality     argues   that    “property     owned,   leased   or   operated”   by
    Marquette     includes      the    KAY   itself.    Therefore,    according   to
    29
    
    Id. at *15.
          30
    Emphasis added. The “other party’s indemnitees,” in the
    case of Marquette, are defined in section 8(B) as “Shipyard, its
    parent, subsidiary, and affiliated companies, each of their
    officers, directors, and employees, the Vessel, its registered
    owner, its master and crew, and each of their respective
    underwriters.”
    14
    Quality, because Marquette wrongfully sued for the loss of its
    “property,”        Marquette   should    be   responsible   for   the    expenses
    Quality incurred in defending the claim.
    As we have noted, the district court’s decision on this matter
    turned on the interplay between the indemnification clause and the
    reciprocal insurance obligations required by the repair agreement.
    Specifically, Quality was required to purchase:
    at its own expense for its own employees, properties and
    operations, the following policies of insurance:
    (A) By Shipyard -
    (1) Worker’s Compensation ... and employer’s
    liability insurance and/or appropriate maritime employers
    coverage ...;
    (2) Comprehensive Public Liability and Ship
    Repairers’ Liability Insurance ... including broad form
    contractual liability coverage ...;
    (3) Automobile liability insurance ...; and
    (4) Full form physical damage insurance on all
    property (including floating equipment and vessels)
    owned, chartered, operated, or otherwise used by the
    Shipyard.
    The repair agreement contains similar insurance requirements for
    Marquette, with additional required coverages.
    The district court looked to a series of cases in which we
    held        (or   affirmed)    that,    because   of   reciprocal       insurance
    requirements, contractual indemnity provisions did not apply until
    the limits of those insurance policies had been reached.                 In other
    words, the insurance policies were the “primary payers” and should
    be exhausted before any indemnity obligations attached.                  In those
    cases —— Ogea v. Loffland Brothers Company,31 Tullier v. Halliburton
    31
    
    622 F.2d 186
    (5th Cir. 1980).
    15
    Geophysical Services, Inc.,32 and In Re Diamond Services33 —— the
    contractual insurance obligations included the express requirement
    that each party name the other as an additional insured under the
    applicable policies.     In Tullier, we noted that this factor had
    been “controlling” in Ogea, and deemed it so again in Tullier.34
    In Diamond Services, the district court explained that although
    there was no additional-insured requirement for the Comprehensive
    General Liability policy, which contained the contractual liability
    coverage, there was such a requirement for the P&I policy, which
    provided primary coverage.     The district court in Diamond Services
    explained that the “essential fact is that the liability insurance
    provided ... under Diamond’s P&I policy is primary and, therefore,
    before CMC is required to indemnify Diamond, the limits of the P&I
    policy must be exhausted.”35
    In the instant case, there are no contractual provisions
    requiring “additional insured” coverage or, as in Diamond Services,
    32
    
    81 F.3d 552
    (5th Cir. 1996).
    33
    
    2001 U.S. Dist. LEXIS 6812
    (May 16, 2001). As the district
    court noted, this case was upheld on appeal in an unpublished
    opinion. Therefore, although we discuss the published district
    court case, the principles expressed in it were affirmed in our
    unpublished opinion.
    34
    
    Tullier, 81 F.3d at 554
    .
    35
    Diamond Services, 
    2001 U.S. Dist. LEXIS 6812
    at *11. There
    was some question whether the P&I policy at issue would be extended
    to cover Chet Morrison Contractors, Inc., the adverse party in that
    case. The district court, however, declined to reach that issue,
    deciding that the fact that the liability insurance provided
    through the P&I policy was primary was dispositive.
    16
    dictating      that     the   contractually-required       insurance     policies
    provide primary coverage.          The district court nevertheless looked
    past    this    fact,    taking    a    “broader   view”   and   examining   the
    underlying reasoning of Ogea and Tullier.              As the district court
    noted, in both of those cases we explained that it is necessary to
    read all contractual provisions “in conjunction with each other in
    order to properly interpret the meaning of the contract.”36                  This
    mandate,      combined    with    the   following   reasoning     from    Diamond
    Services, led the district court to conclude here that the presence
    of “additional insured” coverage is not a critical factor:
    There is no reason for an indemnitor to require an
    indemnitee to procure insurance if the indemnitor did not
    intend to limit its indemnification obligations to the
    excess of the required insurance coverage. ... To read
    the indemnity and insurance requirements any other way
    produces an incoherent result, e.g., why would CMC
    require Diamond to obtain certain insurance policies if
    CMC is required to indemnify Diamond for any claims
    covered under those policies.37
    The district court explained that, “[a]fter considering the repair
    agreement as a whole,” it came to the same conclusion as did the
    Diamond Services court: “There is no logical way to reconcile the
    indemnity provisions and the mandatory insurance provisions ...
    other than to find that the parties intended that the insurance
    36
    
    Tullier, 81 F.3d at 553-54
    (quoting 
    Ogea, 622 F.2d at 190
    ).
    37
    In Re Diamond Services, 2001 U.S. Dist LEXIS 6812 at *10
    (citation omitted).
    17
    coverages be exhausted prior to the indemnity obligation being
    triggered.”38
    We disagree with the district court’s conclusion that there is
    “no   logical    way”     to    reconcile     the   indemnity    and    insurance
    provisions without finding that the parties intended that the
    insurance limits be exhausted prior to attachment of the indemnity
    obligations.     This line of thinking is appropriate in cases like
    Ogea, Tullier, and Diamond Services, where the contracts contained
    “additional     insured”       requirements    or   dictated    the    primacy   of
    insurance coverage over indemnification obligations, or both. That
    made it illogical to read the underlying contracts as providing for
    anything other than an indemnity obligation that does not become
    operable until and unless the insurance proceeds are exhausted. In
    the   absence    of     similar    contractual      language,    however,    this
    reasoning is inapposite.            In the instant case, the insurance
    requirement appears to be designed to provide a solvent, deep
    pocket for any indemnity obligations that may eventuate between the
    parties and to cover any third-party claims that might arise.                    It
    simply is not true that there is only one way to integrate the
    repair agreement’s indemnity and insurance obligations.                   In this
    absence of language supporting the district court’s interpretation
    of those provisions, we cannot accept it.
    38
    Marquette Transportation Co., Inc., et al., v. Louisiana
    Machinery Co., Inc., et al., 
    2002 WL 1809092
    at *18 (Aug. 7, 2002).
    18
    Marquette also makes a number of alternative arguments on the
    indemnity clause. Although all these arguments are based, at least
    in part, on the assumption that the indemnity clause is ambiguous,
    and have therefore been either directly or inferentially addressed
    by the district court’s decision on summary judgment,39 we touch on
    each briefly.
    First, Marquette argues that an ambiguity exists in the “other
    parties’    indemnitees”        language     of   the    indemnity        clause.
    Specifically, Marquette notes that “the vessel ... its registered
    owner, and each of their respective underwriters” are included in
    the   definitions   of    both     “owner    indemnitees”        and    “shipyard
    indemnitees.”    Marquette asserts that this makes the provision
    “confusing and contradictory as to who is indemnifying whom.”
    Although, certainly, an indemnity claim by the vessel’s owners
    against themselves would be contradictory and confusing, we find no
    ambiguity in the contract’s requirement that Marquette indemnify
    Quality.     “Shipyard,    its     parent,    subsidiary,     and      affiliated
    companies” are the first of the listed “Shipyard indemnitees.”
    That fact, in combination with the phrase “[e]ach party agrees to
    defend,    indemnify,     and     hold     harmless     the   other       party’s
    indemnitees,”   makes    clear    that     Marquette    agreed    to   indemnify
    Quality and hold it harmless.
    39
    Discussing Marquette’s contention that the indemnity
    clause’s discussion of “property” did not include the vessel
    itself, or was at least ambiguous, the district court asserted:
    “[T]he terms of the Agreement are not ambiguous ....”
    19
    Marquette also argues that the indemnity clause amounts to an
    unenforceable exculpatory clause.      Again, we disagree.   First, the
    clause clearly indicates that the indemnification obligation will
    attach regardless of the negligence of any of the indemnitees:
    “Each party agrees to defend, indemnify and hold harmless the other
    party’s   indemnitees   ...   regardless   of   cause,   including   the
    negligence or other legal fault of each party’s indemnitees.”
    Second, this particular indemnity clause does not absolve Quality
    of its warranty duties under the contract as Marquette alleges.40
    If Quality had been found to be in breach of those warranties,
    perhaps our application of the indemnity clause would be different.
    As Quality apparently met its duties under the contract, however,
    it is entitled to indemnification from Marquette for the costs and
    expenses caused by the latter’s suit.
    Marquette contends in addition that the phrase “property
    owned, leased, or operated” does not encompass the vessel itself.
    In an effort to support this proposition, Marquette notes that the
    term “vessel” is used 19 times in the repair agreement, but the
    term “property” is used only six times, and argues this is an
    indicator that different meanings are ascribed to the two terms.
    Although the limited use of the term “property” may suggest a
    limited meaning, the plain fact is that, as between the terms
    40
    Marquette claims the clause “serves to absolve the shipyard
    of all obligations,” and that the contract does not “contain any
    other clause or language disclaiming express or implied
    warranties.”
    20
    “property” and “vessel,” the former is the broader of the two.
    “Vessel” is a lesser included type of “property,” but it is
    property nonetheless.      If Marquette had wanted to exclude the
    vessel from the ambit of “property,” it could have insisted on
    language such as “property other than the vessel” or even “other
    property” in the indemnity clause.41       No such language is present,
    however, and   we   will   not   infer   limiting   language   absent    any
    indication of party intent.
    Finally, Marquette asserts that the indemnity clause should be
    construed against its drafter —— Quality —— again, because of the
    clause’s alleged ambiguity.      Beyond our conclusion, shared by the
    district court, that the language is not ambiguous (certainly not
    in the context of the instant case), we note further that changes
    —— initialed by both parties —— were made to the indemnification
    provisions found in paragraph 8 of the repair agreement.42              This
    shows that Marquette read and considered the language of the
    indemnification clause —— again, language that we do not find
    ambiguous.   Under these facts, we decline to impose a strained
    41
    In its order on the cross-motions for summary judgment, the
    district court came to the same conclusion on this point: “If
    Marquette intended for the loss of the vessel to be exempt from
    this broad clause, it could have included such an exclusion.”
    42
    Although the parties changed only subparagraph 8(B), and the
    precise indemnification language at issue in the instant case comes
    from 8(C), this is nevertheless an important indicator of Quality’s
    knowledge of the contents of paragraph eight.
    21
    construction of the language on Quality for having drafted the
    initial version of the agreement.
    III. Conclusion
    The district court did not require Plaintiffs to meet an
    incorrectly difficult burden of proof on the issues of negligence
    and causation; rather, Plaintiffs simply failed to carry the proper
    burden.    On the issue of indemnification, however, the district
    court’s expansive application of the Ogea/Tullier reasoning to the
    instant situation is unwarranted.          The repair agreement in this
    case —— unlike those in Ogea and Tullier —— did not require that
    any party opposite be named as an additional insured; neither did
    it dictate that the required insurance would provide primary
    coverage    before     indemnification.         Absent   explicit   language
    entitling Marquette to benefit from the proceeds of those insurance
    policies, we see no justification for reading such provisions into
    the agreement.       We therefore affirm that portion of the district
    court’s August 6, 2002 Order finding that Plaintiffs had not
    carried their    burden    of    proof   with   regard   to   negligence   and
    causation, but reverse that portion of the Order finding Quality’s
    counterclaim without merit by virtue of the interplay between the
    repair     agreement’s     indemnification        clause      and   insurance
    obligations.    The decision of the district court is therefore
    AFFIRMED in part, REVERSED in part, and REMANDED with instructions.
    22
    23