Olympo v. Certain
U.S. Court of Appeals for the First Circuit
Olympo v. Certain
Opinion
USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1280
OLYMPO TRANSPORT COMPANY OF PUERTO RICO, ET AL.,
Plaintiffs, Appellants,
v.
CERTAIN INSURANCE COMPANIES AT THE INSTITUTE
OF LONDON UNDERWRITERS, ET AL.,
Defendants, Appellees.
____________________
ERRATA
The published opinion of this Court issued on December 30,
1996, is amended as follows:
Cover sheet: delete the [Hon. Carmen Consuelo Cerezo, U.S. ____
District Judge] and insert the [Hon. Salvador E. Casellas] in its ______________
place.
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1280
OLYMPO TRANSPORT COMPANY OF PUERTO RICO, INC. ET AL,
Plaintiffs, Appellants,
v.
CERTAIN INSURANCE COMPANIES AT THE
INSTITUTE OF LONDON UNDERWRITERS, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas]
____________________
Before
Coffin and Campbell, Senior Circuit Judges, _____________________
and DiClerico,* Chief Judge. ___________
____________________
Paul E. Calvesbert, with whom Jose E. Alfaro-Delgado and ____________________ ________________________
Calvesbert, Alfaro & Lopez-Conway were on brief for appellants. _________________________________
Edward M. Cuddy, III, with whom James W. Carbin, Christopher B. _____________________ ________________ ______________
Turcotte, and Kroll & Tract were on brief for appellees. ________ _____________
____________________
December 30, 1996
____________________
____________________
*Of the District of New Hampshire, sitting by designation.
CAMPBELL, Senior Circuit Judge. Plaintiffs are two ____________________
non-vessel operating common carriers and an insurance carrier
who have sued in the district court to recover insurance on
account of damages allegedly suffered from the loss overboard
of several cargo containers that were being carried by barge
from Jacksonville, Florida, to San Juan, Puerto Rico. The
barge and tug were operated by Ocean Line of North Florida,
Inc. ("Ocean Line"), a now defunct shipping company. The
principal defendants, from whom plaintiffs seek recovery, are
the issuers of an open marine cargo insurance policy for
Ocean Line. The case was tried in the United States District
Court for the District of Puerto Rico. The court entered
judgment for the defendant insurers and plaintiffs have
appealed.
We affirm the judgment below. We are satisfied
that the findings of the district court, as set forth in its
Opinion and Order, are not clearly erroneous, and that its
conclusions and legal analysis therein are materially
correct. This being so we see no need to go over in detail
the same ground comprehensively covered in the district
court's own opinion. Instead, we limit ourselves to a brief
discussion of the controlling issues.
In their direct action on the policy, plaintiffs
have sought to establish that notwithstanding the absence
of affirmative requests from shippers that their goods be
-3-
insured the policy's coverage was "automatically"
available to all shippers. In support of this proposition,
plaintiffs offered evidence at trial of a "custom and usage"
in the Puerto Rico-United States trade for ocean carriers to
provide insurance automatically up to certain limits, without
a shipper having to affirmatively request coverage at the
time of entrusting his goods to the carrier. Defendants,
however, sharply disputed this contention, and the district
court found, on the conflicting proofs, that there was no
such custom and usage. We see no clear error in that
finding. The court also expressed doubts as to whether
custom and usage evidence, such as it was, could override
Ocean Line's announced policies on the matter.
Plaintiffs argue that, apart from custom and usage,
coverage is manifest from the language of the policy itself.
They disparage as immaterial Ocean Line's published tariffs
and its bills of lading, which contained specific language
requiring shippers to first request insurance if they wished
to obtain it. Instead, plaintiffs urge us to rely
exclusively on the insurance policy itself. But, like the
district court, we find little support in the policy language
for plaintiffs' position. The definition of assured in the
insurance policy includes Ocean Line and associated
companies, "and/or for whom they received instructions to
insure." Express shipper's instructions to insure are
-4-
lacking here,1 and we see no reliable basis from which to
infer that such instructions were given. The tariffs and
bills of lading specifically call for shippers to provide
explicit instructions if they wish insurance. It is true
that one section of the tariffs indicates that "the rates in
this tariff include insurance," and the parties seem to agree
that a shipper would have been entitled to free insurance
(i.e. with Ocean Line to pay the premium), but disagree
whether the free insurance was "automatic" or had first to be
requested, and the cargo value stated, as the tariffs and
bills of lading provide. Nothing in the policy itself states
that all shipments are to be automatically insured; to the
contrary, the policy definition of assureds suggests quite
the opposite, as does the evidence of Ocean Line's own
practices and methods for paying premiums prior to the loss.
As we say, we find no indication of clear error in the
district court's findings and factual conclusions, which
appear well-supported on this record. We can only agree with
the court that plaintiffs have failed to establish that the
____________________
1. Transcaribe tendered pro forma bills of lading late in
the district court proceedings which it says manifested the
shipper's requests for insurance. The district court,
expressing doubts as to these documents' authenticity and
credibility, found this late-filed evidence was insufficient
to establish that proper requests were made. Infra. _____
-5-
cargo, for the loss of which they are claiming, was in fact
insured under the policy in question.2
As noted in Note 1, there was a dispute at the
trial concerning the weight to be given to certain pro forma
bills of lading submitted as evidence very late in the day by
Transcaribe. Transcaribe argued that these indicated that
coverage had, in fact, been requested, although the
documentary evidence was far from being clear or uniform in
this respect. The district court's disposition of this issue
is explained in its Opinion and Order. The district court's
evaluation and handling of this evidence was not clearly
erroneous and was within its reasonable discretion in the
circumstances of this case.
Affirmed. ________
____________________
2. The plaintiffs call our attention to several translated
Puerto Rico cases and to one Second Circuit case, Estee _____
Lauder International, Inc. v. World Wide Marine Service, ____________________________ ____________________________
Inc., 923 F.2d 238 (2d Cir. 1991). We agree with the ____
defendant insurers that these cases are either irrelevant to
the contested issues in this case or are readily
distinguishable and thus are not dispositive.
-6-
Reference
- Status
- Published