Timothy Fenby v. M/V Three D of Guernsey

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 2, 2007
No. 06-13100 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-60748-CV-ASG
TIMOTHY FENBY,
Plaintiff-Counter-Defendant,
MARYANNE FENBY,
his wife,
Plaintiff,
versus
M/V THREE D OF GUERNSEY,
her engines, tackle, apparel, furniture, equipment
and all other appurtenances thereto appertaining
and belonging,
Defendant-Third-Party-Plaintiff,
BURLEY MARINE LIMITED,
a Guernsey corporation,
Third-Party-Plaintiff-Counter-Claimant-Appellant,
versus
CERTAIN UNDERWRITERS AT LLOYD'S LONDON,
subscribing to Policy Number 02YP0216,
Third-Party-Defendant-Appellee,
CABLE MARINE, INC.,
a Florida corporation, et al.,
Third-Party-Defendants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 2, 2007)
Before BIRCH, DUBINA and PRYOR, Circuit Judges.
PER CURIAM:
Burley Marine Limited, owner of a yacht, appeals the declaratory judgment
entered in favor of Certain Underwriters at Lloyd’s London that denied the
existence of coverage, under a contract of marine insurance. Burley Marine owns
the M/V Three D of Guernsey, which was insured by Lloyd’s when it ran aground
in Ft. Lauderdale, Florida, in April 2003. The Three D was taken for repairs to
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Cable Marine, where Timothy Fenby was injured while working on the yacht.
Burley Marine sought a declaratory judgment that the insurance policy on the
Three D required Lloyd’s to pay for the repairs to the yacht and defend a lawsuit
brought by Timothy Fenby and his wife. After a bench trial, the district court
entered judgment in favor of Lloyd’s. We affirm.
The relevant facts are taken from the findings of the district court. On May
23, 2002, Lloyd’s issued an insurance policy on the Three D that provided
coverage for one year, and that policy contained two clauses relevant to this
appeal. First, the policy limited coverage to certain navigational limits, subject to a
“held covered” clause: “Mediterranean Waters . . . or held covered at rate and
terms to be agreed subject to notice being given as soon as practicable.” A “held
covered” clause provides coverage in certain circumstances when a breach of
warranty occurs. Hilton Oil Transp. v. Jonas, 75 F.3d 627, 629-30 (11th Cir.
1996). Second, the policy included the following “agreed paid for loss” clause:
“Agreed pay for loss or damage to the vessel when caused by the breach of any
warranty contained in this policy by a paid captain and/or crew members or a
charterer provided . . . such breach is not committed with the consent, approval or
knowledge of the assured.”
The parties later negotiated changes to the navigational limits for a limited
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term of coverage. In the fall of 2002, George Downing, the beneficial owner of
Burley Marine, decided to transport the Three D to Martinique, an island in the
West Indies, for the winter season. Downing had his insurance broker obtain from
Lloyd’s an endorsement to the insurance policy, which provided that, “[u]pon safe
arrival in Martinique, cruising is restricted to Caribbean Waters until April 2003.”
On March 31, 2003, Lloyd’s issued a second endorsement, which provided that
“the cruising range is extended to include Caribbean waters up to and including
April 16, 2003.” On April 10, 2003, Lloyd’s issued a third endorsement, which
provided that “the cruising range is extended to include Caribbean waters up to an
including 28th April 2003.” Neither the policy nor the endorsements defined the
term “Caribbean Waters.”
On April 14, 2003, the Three D ran aground on a beach in Ft. Lauderdale,
Florida. It was piloted by Kaj Collins, a captain hired by Trevor Woodman, the
captain hired by Downing to pilot the yacht. The Three D was taken to Cable
Marine, where Fenby was injured. Fenby and his wife brought a lawsuit against
various entities, including Burley Marine. On April 22, 2003, Lloyd’s issued a
final endorsement, which provided “coverage is extended to include cruising in
Florida waters.”
Burley Marine filed a third-party complaint for a declaratory judgment
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against Lloyd’s regarding coverage for damage to the vessel and injuries to Fenby.
Burley Marine presented three arguments. First, it contended that the navigational
limits had not been breached, because the phrase “Caribbean Waters” is ambiguous
and should be construed against Lloyd’s. Second, it argued, in the alternative, that
the “held covered” provision of the insurance policy provides coverage. Finally, it
asserted that the “agreed pay for loss” clause provides coverage.
The district court entered a declaratory judgment in favor of Lloyd’s. The
district court applied Florida law in interpreting the contracts of marine insurance,
see Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310, 321, 75 S. Ct. 368,
374 (1955), and rejected all three arguments of Burley Marine.
Our standard of review is settled: We review the legal conclusions of the
district court de novo and the findings of fact for clear error. Mitchell v.
Hillsborough County, 468 F.3d 1276, 1282 (11th Cir. 2006).
Burley Marine first contends that the Three D did not sail beyond the
navigational limits covered by the insurance policy when it ran aground on a beach
in Ft. Lauderdale. Burley Marine asserts that the phrase “Caribbean Waters” is
ambiguous and should be construed against Lloyd’s. We disagree.
Contrary to the assertion of Burley Marine, “‘[t]he mere failure to provide a
definition for a term involving coverage does not necessarily render the term
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ambiguous.’” Health Options, Inc. v. Kabeller, 932 So. 2d 416, 420 (Fla. Dist. Ct.
App. 2006) (quoting Jefferson Ins. Co. of N.Y. v. Sea World of Fla., Inc., 586 So.
2d 95, 97 (Fla. Dist. Ct. App. 1991)). “Ambiguity is not invariably present when
analysis is required to interpret the policy.” Gulf Tampa Drydock Co. v. Great Atl.
Ins. Co., 757 F.2d 1172, 1175 (11th Cir. 1985) (citing Blue Shield of Fla., Inc. v.
Woodlief, 359 So. 2d 883, 884 (Fla. Dist. Ct. App. 1978)). “Under Florida law,
the words utilized in an insurance policy are to be given their plain and ordinary
meaning.” Rigby v. Underwriters at Lloyd’s, London, 907 So. 2d 1187, 1188 n.1
(Fla. Dist. Ct. App. 2005).
The phrase “Caribbean Waters” is not ambiguous in this circumstance.
Under the plain and ordinary meaning of the words, “Caribbean Waters” do not
include waters immediately off the coast of Ft. Lauderdale, Florida. “Caribbean
Waters” are waters of or relating to the “Caribbean,” and The Oxford English
Dictionary defines the word “Caribbean” as an adjective or noun “applied to
certain of the West Indian isles, and to the sea between them and the [South and
Central American] mainland.” The Oxford English Dictionary 899 (2d ed. 1989)
(entry for “Carib”). Ft. Lauderdale is not a West Indian isle, and between Ft.
Lauderdale and the Caribbean Sea are more than 200 miles of the Atlantic Ocean
and the island of Cuba. See 14 The New Encyclopedia Britannica 304 (15th ed.
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2003) (entry for “Caribbean Sea”) (describing the Caribbean Sea as bounded to the
north by the islands of Cuba, Hispaniola, Jamaica, and Puerto Rico).
Second, Burley Marine argues that, even if the Three D sailed beyond the
navigational limits covered by the insurance policy and the endorsements, the
“held covered” provision of the policy provides coverage. We disagree. A “held
covered” clause provides coverage when a breach of warranty occurs, but only if
the breach was not willful. Hilton Oil Transp., 75 F.3d at 630. The district court
found that Downing knowingly and intentionally sent the Three D out of
“Caribbean Waters.”
Burley Marine argues that, contrary to the finding of the district court,
Downing did not know that the waters immediately off the coast of Ft. Lauderdale
were outside “Caribbean Waters,” but Burley Marine fails to provide any evidence
to support this assertion. “If the appellant intends to urge on appeal that a finding
[of the district court] . . . is unsupported by the evidence or is contrary to the
evidence, the appellant must include in the record a transcript of all evidence
relevant to that finding . . . .” Fed. R. App. P. 10(b)(2). Because Burley Marine
failed to comply with this rule, we cannot review the alleged evidentiary error and
must affirm the finding of the district court. Loren v. Sasser, 309 F.3d 1296, 1304
(11th Cir. 2002).
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Finally, Burley Marine contends that the “agreed pay for loss” clause of the
insurance policy provides coverage. Lloyd’s “[a]greed [to] pay for loss or damage
to the vessel when caused by the breach of any warranty contained in this policy by
a paid captain and/or crew members or a charterer provided . . . such breach is not
committed with the consent, approval or knowledge of the assured.” Burley
Marine argues that, even if navigational limits were breached, the breach was not
committed with the consent, approval, or knowledge of Downing.
We disagree. The district court found that Downing approved and ordered
that the Three D be sailed beyond the navigational limits covered by the insurance
policy and endorsements. Although Burley Marine contests this finding, it again
offers no evidence to support its assertion. Without a transcript of the trial to
review, we must affirm the finding of the district court.
The declaratory judgment of the district court is
AFFIRMED.
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