254 F.3d 987 (11th Cir. 2001), 00-12336, Fireman's Fund Ins. Co. v Tropical Shipping & Constru.
|Citation:||254 F.3d 987|
|Party Name:||FIREMAN'S FUND INSURANCE COMPANY, TALL PONY PRODUCTIONS, INC., Plaintiffs-Appellants, IN ANY EVENT, INC., Plaintiff, v. TROPICAL SHIPPING AND CONSTRUCTION COMPANY, LTD., BIRDSALL, INC., Defendants-Appellees, STAGELINE MOBILE STATE, INC., Defendants-Cross-Defendants, M/V TROPIC TIDE, in rem, SEVEN SEAS INSURANCE CO., INC., Defendants, BROMMA, INC.,|
|Case Date:||June 19, 2001|
|Court:||United States Courts of Appeals, Court of Appeals for the Eleventh Circuit|
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Appeals from the United States District Court for the Southern District of Florida D. C. Docket Nos. 96-08341-CV-KLR & 96-08876-CV-KLR
Before TJOFLAT, DUBINA and MESKILL[*], Circuit Judges.
MESKILL, Circuit Judge:
This action spawned four appeals from various final judgments entered by the United States District Court for the Southern District of Florida, Ryskamp, J., brought by two insurance companies, an ocean carrier and its stevedore, and a television production company, arising out of the destruction of a mobile stage while it was being loaded for transport from the Port of Palm Beach to the island of St. Maarten for use in an HBO television special titled "Sinbad's 70's Soul Party."
In May 1995, Tall Pony Productions (Tall Pony) leased a mobile stage from In Any Event, Inc. (Any Event). Any Event had previously leased the stage from its owner, Stageline Mobile Stage (Stageline), a Canadian manufacturer of mobile stages. Tall Pony subleased the stage in connection with an HBO Sinbad Special television production scheduled to take place in St. Maarten. Tall Pony contracted with Tropical Shipping & Construction (Tropical), an ocean carrier, to transport the stage and other equipment from the Port of Palm Beach to St. Maarten. Tropical and Tall Pony entered into a shipping contract, evidenced by a bill of lading, for shipment of the cargo on Tropical's vessel, the "Tropic Tide." A separate clause in the bill of lading limited Tropical's liability to $500 for each trailer or container prepared by the shipper, except where the shipper, in this case Tall Pony, declared a higher value for the equipment and paid the corresponding higher ad valorem tariff. Tropical contends that Tall Pony did not declare value for the shipment on the bill of lading, and, as such, did not pay a higher tariff rate for its cargo, which the district court noted would have been approximately $64,000 based on figures provided by Tropical. If Tropical is correct, Tall Pony's recovery for property damage to the stage is limited to the $500 per package limitation provided under the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. App. § 1304(5).
Fireman's Fund insured both Tall Pony and Any Event. To that end, Fireman's Fund issued Tall Pony a "blanket policy," which was supplemented with separate declaration endorsements for each production undertaken by Tall Pony. Fireman's Fund issued one such policy and declaration for the "Sinbad's 70's Soul Party" production. That policy states, in pertinent part, that "[t]his coverage insures against all risks of direct physical loss or damage to the property covered." The policy further provides coverage for "the value of personal property, including but not limited to . . . mechanical effects equipment, grip equipment and mobile equipment . . . damaged or destroyed during the term of coverage, caused by the Perils Insured against, while such property is used or to be used by you in connection with an insured production." Notably, the policy does not contain an exclusion for property damage incurred during the loading and transport of the stage, and no endorsement to that effect
was ever issued by Fireman's Fund in connection with the Tall Pony production at issue. The Fireman's Fund policy also contains an "Other Insurance" provision, which provides that the policy "shall apply as excess insurance over [any] other insurance" issued in favor of Tall Pony and covering the same property.
Fireman's Fund issued a Certificate of Insurance on behalf of Tall Pony and in favor of Stageline for the mobile stage. As the lessee of the stage, Any Event was required to indemnify Stageline for damage to the stage. Tall Pony, the sublessee and actual user of the stage, was in turn legally obligated to indemnify Any Event for any amounts it paid to Stageline arising from damage to the stage.
Shortly before the scheduled shipment date, Jerome Anderson, the Fireman's Fund underwriter for the Tall Pony policy, informed Tall Pony that its policy did not cover the loading and ocean transport of the stage and that Fireman's Fund did not wish to underwrite risks associated with shipping by water. Concerned about lack of coverage for the stage once it was turned over to Tropical for loading onto its vessel, Danny Harris, head of production at Tall Pony, contacted Tropical to inquire about obtaining ocean marine cargo coverage for the shipment. Tropical referred Harris to Jim McIntire, a vice-president at Seven Seas Insurance Company (Seven Seas), a sister corporation of Tropical. After independently checking on Seven Seas with its broker, Tall Pony obtained "open cargo" or "open sea" insurance coverage from Seven Seas for the ocean transport of the stage, listing Tall Pony as named assured. The Seven Seas policy was an "all risk" cargo policy, and contained an "Other Insurance" provision similar to the one contained in the Fireman's Fund policy. At Tall Pony's request, on May 17, 1995, the same day the stage was damaged, Seven Seas issued a letter to Tall Pony, confirming that the stage was insured for ocean transport under the Seven Seas policy: "Tall Pony Productions is held covered on their cargo sailing from Port of Palm Beach to St. Maarten and on the return trip from St. Maarten to Port of Palm Beach. Coverage is all risk excluding any pre-existing discrepancies prior to receipt from Tropical Shipping." Relying on Seven Seas' letter as proof of insurance coverage for its shipment, Tall Pony took no further action with respect to securing insurance coverage.
Tropical employed Birdsall, a stevedore, to load the stage onto the vessel through the use of a crane with spreaders. The crane employed by Birdsall was manufactured by Bromma. During the course of loading the stage, the crane failed, causing the stage to drop to the dock, resulting in its total destruction. Consistent with the adage that "the show must go on," Tall Pony made arrangements to secure a replacement stage.
B. Proceedings in the District Court
On May 17, 1996, Tall Pony, Fireman's Fund, its insurer, and Any Event commenced an action against Tropical, Birdsall, Bromma and Stageline, and the Tropic Tide, in rem, for damages arising from the destruction of the stage at the time it was being loaded onto the Tropic Tide (Tall Pony I). On December 19, 1996, Tall Pony initiated a separate action against Seven Seas to recover, inter alia, property and consequential damages pursuant to the terms of the "all risk" policy issued by Seven Seas (Tall Pony II). On May 1, 1997, the district court dismissed, on joint stipulation of the parties, Any Event as a plaintiff in Tall Pony I. On November 7, 1997, the district court consolidated the Tall Pony I and Tall Pony II actions.
While Tall Pony I and Tall Pony II were pending in the district court, Stageline and its insurers commenced an action against Fireman's Fund and Any Event to recover for the property damage to the stage. In settlement of that claim, Fireman's Fund paid Stageline and its insurers $234,000. On December 2, 1997, in exchange for payment of the settlement proceeds, Stageline and its insurers executed a release in favor of Fireman's Fund and/or its insureds for all claims relating to the physical damage to the stage. Fireman's Fund made additional payments for claims arising out of the destruction of the stage: $57,500 to Any Event for its loss of use claim against Tall Pony; $180,348 to Tall Pony for reimbursement of expenses incurred in connection with obtaining a replacement stage; and $2,175 for miscellaneous accounting expenses.
In October 1998, some ten months after Fireman's Fund settled the claims...
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