S. Felicione & Sons Fish Co. v. Citizens Casualty Co. of NY
| Citation | 430 F.2d 136 |
| Decision Date | 18 September 1970 |
| Docket Number | No. 28319.,28319. |
| Parties | S. FELICIONE & SONS FISH COMPANY, Inc., Plaintiff-Appellee, v. CITIZENS CASUALTY COMPANY OF NEW YORK, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
William S. Frates, II, West Palm Beach, Fla., John T. Allen, Jr., Baya M. Harrison, III, St. Petersburg, Fla., for defendant-appellant; Harrison, Green, Mann, Davenport, Rowe & Stanton, St. Petersburg, Fla., of counsel.
Charles F. Clark, MacFarlane, Ferguson, Allison & Kelly, Tampa, Fla., for plaintiff-appellee.
Before GODBOLD, DYER and MORGAN, Circuit Judges.
Rehearing Denied and Rehearing En Banc Denied September 18, 1970.
This bizarre saga of the seas — involving a double murder and ship scuttling by a drunkenly irrational master — is not only novelesque, but leaves novel legal consequences in its wake. It begins on November 9, 1967, when the MISS SONDRA LEIGH owned by plaintiff, S. Felicione & Sons Fish Company, Inc., under the command of Captain Lee Tindall, and with two crewmen on board, the rigman, Duhon, and an unidentified Mexican shrimp header, departed Port Isabelle, Texas, to fish for shrimp on the flats of Campeche, Mexico. She arrived about November 14, 1967, and fished the waters until November 18, 1967, when she, along with ten or fifteen other fishing vessels, congregated on the flats to discharge her catch into the vessel JUNE, a service boat which would take the catch into port.
The MISS SONDRA LEIGH dropped anchor in the vicinity of the JUNE about 3:30 P. M., some ten to twenty miles in the Gulf of Mexico in international waters. The ESTO FLEET, a 72 foot steel hulled vessel, commanded by Captain Frank Paprocki, was anchored about 150 yards to the starboard of the MISS SONDRA LEIGH. The shrimp was transferred from the MISS SONDRA LEIGH to the JUNE just before dark. During the transfer of the shrimp the ESTO FLEET came portside and made up to the MISS SONDRA LEIGH. Captain Paprocki emerged from the wheel house of the ESTO FLEET, apparently under the influence of alcohol, with a gun in one hand and a bottle of whiskey in the other. He shot into the air and the water and then fired two shots into the galley and wheelhouse of the MISS SONDRA LEIGH. Captain Tindall told Captain Paprocki to stop shooting the gun. This request made Captain Paprocki mad and he began arguing violently with Captain Tindall.
Captain Paprocki then boarded the MISS SONDRA LEIGH and asked Captain Tindall and Duhon to drink with him. They refused. Captain Paprocki boarded the vessel portside to the MISS SONDRA LEIGH and then returned. He refused to disengage the ESTO FLEET, so the MISS SONDRA LEIGH got underway with the ESTO FLEET in tow. Duhon went below to prepare an ice bed for further shrimping. He heard two shots from the bow and, shortly after that, two shots by the hatch.
Duhom came topside and saw Captain Tindall dead, lying on the nets on the starboard side. The Mexican national was also dead, lying on the bow next to the hatch. Duhon ran to his sleeping quarters, grabbed a life jacket and, as he emerged, Captain Paprocki appeared from an after door of the ESTO FLEET and said "You are next." Duhon jumped overboard. Paprocki fired twice but missed. Duhon was picked up about twelve hours later by a Mexican fishing boat.
On the next morning, November 19, 1967, Captain Grisham of the TOBY JEAN saw the ESTO FLEET towing the MISS SONDRA LEIGH tied up alongside, towards the open sea. The MISS SONDRA LEIGH was partially submerged and no one appeared to be on board her. Captain Grisham contacted Captain Paprocki by radio and was informed by him that the MISS SONDRA LEIGH had sprung a leak and that its crew was on the beach. Captain Paprocki appeared to be drunk, or at any rate not in a normal condition. Captain Grisham followed the ESTO FLEET.
Early in the afternoon Captain Grisham saw the MISS SONDRA LEIGH strung out aft of the ESTO FLEET on a single line, sunk down to her decks but still upright. Captain Paprocki pulled the MISS SONDRA LEIGH back and forth until he capsized her, cut his line to her, rammed her three times with the steel-hulled ESTO FLEET, and departed. Captain Grisham tied a buoy to the rudder shoe of the MISS SONDRA LEIGH and returned to Port Isabelle.
On November 20, 1967, the MISS SONDRA LEIGH was towed from twenty miles to within five miles offshore Mexico, at which time Captain Tindall's body was discovered chained inside the fishhold. The Mexican national's body was later discovered chained to the fuel tank.
The vessel was a constructive total loss. A survey showed that it had been rammed three times on the starboard side and two times on the port side while in a capsized position by a vessel with a V-shaped hull. The port side was holed in three areas. Two bullet holes were found aft of the hatch, favoring the starboard side of the pilot house, three in the overhead area and four bullet holes aft of the fishhold hatch in the aft deck near the center of the deck.1
The policy issued to plaintiff by defendant Citizens Casualty Company of New York provided coverage of the MISS SONDRA LEIGH in the familiar, aphoristic terms:
Touching the adventures and perils which this Company is contented to bear and take upon itself, they are of the waters named herein, fire, lightning, earthquake, assailing thieves, jettisons, barratry of the master and mariners and all other like perils that shall come to the hurt, detriment or damage of the vessel named herein.
The policy further provides:
The District Court, trying the case without a jury, found as conclusions of law:
"1. When Captain Paprocki lashed down the bodies of the dead seamen to the MISS SONDRA LEIGH and towed her seaward, casting her away by towing her so as to sink her and then exhorting a final flourish by ramming her, he acted with force against the insured property with the intention of permanently depriving the owner of the property so as to fall within the provision of the policy insuring against loss from `assailing thieves.\'
Captain Paprocki was an assailing thief.
Final judgment was entered for the plaintiff for the full amount of the policy and this appeal ensued. The question of coverage of defendant's policy for the irrational conduct of Captain Paprocki is the sole issue to be determined in this appeal.
It is too well settled to require citation that the burden of proving a loss by a peril insured against is on the insured. To meet this burden Felicione, in the District Court, asserted that the loss was occasioned by "assailing thieves." Citizens defended in the District Court on the ground that the proximate cause of Felicione's loss was Paprocki's piratical act, a peril excluded in the policy. The District Court agreed with Felicione.
On appeal both parties assert alternative contentions which they did not raise below. Felicione would have us find that if the loss was not technically within the coverage of the "assailing thieves" provision it was caused by a "like peril" to that term, or by a like peril to barratry, or by a collision. Citizens now adds the argument that the vessel was captured, seized or taken, all of which were excluded perils. We decline the invitation of both parties to interpret and construe the recondite niceties of verbiage in an ancient clause of an insurance policy, none of which were presented to or decided by the lower court. We are content to limit our inquiry to what was decided below, viz., was Paprocki an "assailing thief"? Since the burden is upon Felicione to prove the loss was caused by a peril specifically insured against, we need not determine whether the MISS SONDRA LEIGH was lost through a peril specifically excluded by the policy terms.
In this frame of reference the actions of Paprocki are pivotal. He and Captain Tindall were very close friends. He came aboard in an intoxicated condition with a fifth of whiskey in one hand and a gun in the other and wanted Captain Tindall and the crew to have a drink with him. They refused. He sat on the deck and continued drinking. Later, in an irrational condition, Paprocki murdered Tindall and one of the crew and attempted to murder the other crewman who avoided such a fate by jumping overboard with Paprocki blazing away at him. Then Paprocki sank the...
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