Darien Bank v. Travelers Indem. Co.
| Decision Date | 31 August 1981 |
| Docket Number | No. 80-7648,80-7648 |
| Citation | 654 F.2d 1015 |
| Parties | The DARIEN BANK, Plaintiff-Appellee, v. The TRAVELERS INDEMNITY COMPANY, Defendant-Appellant. Jack GORE, Plaintiff-Appellee, v. The TRAVELERS INDEMNITY COMPANY, Defendant-Appellant. . Unit B |
| Court | U.S. Court of Appeals — Fifth Circuit |
Edwin D. Robb, Jr., Walter C. Hartridge, Savannah, Ga., for defendant-appellant.
Charles M. Jones, Hinesville, Ga., for plaintiffs-appellees.
Appeal from the United States District Court for the Southern District of Georgia.
Before HILL, FAY and HENDERSON, Circuit Judges.
Appellant, Travelers Indemnity Company, appeals the District Court's denial of its motions for a directed verdict and for a judgment notwithstanding the verdict in this consolidated action to recover under a marine insurance policy for the loss of the vessel STONEFIELD LADY. Finding that the appellee, as plaintiff, not only presented a prima facie case but also met his burden of proof, we affirm.
This appeal arose out of the loss in the Gulf Stream of a 73 foot shrimp boat, the STONEFIELD LADY, which was owned by appellee Gore, mortgaged to appellee bank and insured by appellant. When discovered by the Coast Guard off Cape Hatteras, North Carolina, on June 27, 1978, the vessel was in a semi-submerged condition, bow vertically down, anchor out, with only three feet of stern above water. Since the Coast Guard suspected that the vessel contained contraband they airlifted a Navy Diving Team to the site and investigated the vessel. The team found no evidence of contraband in the vessel but they did note that the ship's wheel had been lashed in two places, that there were few personal belongings within, that the vessel's rigging was normal, that one portable pump was rigged on deck and the hatches open, that there were no openings through the hull valvefittings or in the hull itself which would allow ingress of sea water. Record, at 146-54. However, the diver also testified in deposition, that it appeared that someone had unsuccessfully attempted to hole the hull in the forward compartment. 1 Shortly after the vessel was taken in tow it completely sank in calm seas. The parties stipulated that the vessel "was lost by sinking". The whereabouts of the crew or their fate remains unknown.
Several weeks prior to the loss of the STONEFIELD LADY, police seized fifteen tons of marijuana from one of appellee's other shrimp boats, the LITTLE HORNET. Appellee received immunity from prosecution in consideration for testimony against his co-conspirators in that case as well as in regard to the STONEFIELD LADY. No prosecution was instituted in the latter instance, yet appellant maintains that the parallels between the two vessel's activities indicate that the STONEFIELD LADY was scuttled when this criminal scheme was foiled by the authorities.
In the spring of 1978, appellee a Georgia resident, owned four shrimp boats, the LITTLE WASP, LITTLE HORNET, WINYAH BAY and STONEFIELD LADY which were outfitted mainly in Fort Myers, Florida for fishing in the Gulf of Mexico. Testimony indicates that appellee approached a Georgia neighbor, Jack D'Antignac, with a plan for using appellee's pier for off-loading marijuana after importing it from Colombia in the LITTLE HORNET. They agreed to this scheme and shortly thereafter the boat was outfitted in Fort Myers with a long range single-side-band radio and a navigational aid, the Loran A, to supplement the LITTLE HORNET's existing navigational system. Although a soon to be phaseout model of radio navigation equipment, Loran A could be used to navigate at distances further from the United States than the newer system, Loran C, i. e. to Colombia. This was due to the dearth of Loran C stations throughout the Caribbean at that time. However, there are other aspects to such a purchase.
The Loran A was in some instances more accurate than Loran C, in areas of mutual coverage, due to problems in the new system. Further, appellee testified that differences in the placement of Loran lines on charts were significant to his fishing activities. Since shrimping involves fishing off small "table top" formations on the Gulf floor, precise navigation is essential and resort to two navigational aids, where possible, would be beneficial. Record at 15-20, 63-64.
The LITTLE HORNET, LITTLE WASP and WINYAH BAY all had Loran A's on them. The newly built STONEFIELD LADY only had the Loran C installed, but soon after the LITTLE HORNET received her second set of Loran A, 2 the STONEFIELD LADY was also outfitted with a Loran A and a single-side-band radio. The other two shrimp boats did not receive such radios. 3
Appellee relieved the regular captain and crew of the LITTLE HORNET and turned that vessel over to D'Antignac for the smuggling run. Before leaving for Colombia the boat took on small quantities of ice and large quantities of fuel. Similarly, appellee relieved his son Tom as captain of the STONEFIELD LADY, as well as the crew, and put them on the WINYAH BAY. He testified that he did this to increase production on the WINYAH BAY and with the intent that he would captain the STONEFIELD LADY himself to increase its production. Record at 4-6. On cross, appellee admitted that the STONEFIELD LADY, under Tom Gore, had out produced all the other boats, but he also noted that he had made one trip on it himself that season. Record at 55-56.
The STONEFIELD LADY was also provisioned with a relatively large quantity of fuel and small quantity of ice prior to departing Fort Myers on May 26, 1978. Appellee attempted to explain these facts as relevant to the larger fuel and ice keeping capacity of the STONEFIELD LADY, compared to his other boats, and the need to prevent condensation rusting of fuel tanks by keeping the tanks topped off on long shrimping trips. Record at 84-89. The STONEFIELD LADY departed Fort Myers a week after the LITTLE HORNET and was discovered semi-submerged in the Gulf Stream seventeen days after the LITTLE HORNET was seized. During that time the appellee testified that he had no contact with the STONEFIELD LADY or its crew and that he did not know how it had come to be in that condition over 1,000 miles from its port of departure.
The vessel was covered by a specifically enumerated Marine Perils Policy for $160,000 with appellee bank as a loss payee. The quaint perils clause reads as follows:
PERILS Touching the Adventures and Perils which we, the said Underwriters, are contented to bear and take upon us, they are of the Seas, Men-of-War, Fire, Lightning, Earthquake, Enemies, Pirates, Rovers, Assailing Thieves, Jettisons, Princes and Peoples, of what nation, condition or quality soever, Barratry of the Masters and Mariners and of all other like Perils, Losses and Misfortunes that have or shall come to the Hurt, Detriment or Damage of the said Vessel, etc., or any part thereof; excepting, however, such of the foregoing Perils as may be excluded by provisions elsewhere in the Policy or by endorsement. And in case of any Loss or Misfortune, it shall be lawful and necessary for the Assured, their Factors, Servants and Assigns, to sue, labor and travel for, in, and about the Defense, Safeguard and Recovery of the said Vessel, etc., or any part thereof, without prejudice to this Insurance, to the Charges whereof the Underwriters will contribute their proportion as provided below. And it is expressly declared and agreed that no acts of the Underwriters or Assured in recovering, saving or preserving the property insured shall be considered as a waiver or acceptance of abandonment.
When the insurer's agent learned of the discovery of the STONEFIELD LADY, he attempted to contact the appellee in regards to adjusting the claim and the possible salvage of the vessel. Appellee referred all inquires, including those of the Coast Guard, to his attorney. 4 No salvage attempt was made by any party to this litigation. All insurance loss claims were rejected by the appellant.
Also relevant to this action is whether a full crew was on board the STONEFIELD LADY when she departed Fort Myers. 5 Appellee testified that he hired a Jim Gentile to captain the STONEFIELD LADY and instructed him to hire a crew of two and fish off the Louisiana and Alabama coasts. Appellee related that he had known this individual for several years as a result of fishing in the same vicinity and conversing on ship to ship radio but had never actually met him. However, appellee stated that Gentile came to him in search of a job while appellee was working on the STONEFIELD LADY and that appellee tested his knowledge of rigging and maneuvering prior to hiring him as captain. Appellee further testified that it was customary for the captain to hire his own crew and that appellee did not meet any member of the STONEFIELD LADY'S crew before she sailed. Record at 8-12, 26-28.
Appellant, in response, put on evidence of discrepancies between appellee's description of Gentile and the description of others who apparently might have dealt with this captain. Further, various knowledgeable people in the area testified for appellant that they had never heard of a Jim Gentile as captain of a shrimpboat. Record at 70, 72, 94-96, 107-08. However, some of these witnesses had not heard of Tom Gore, appellee's son, as a shrimpboat captain either. Record at 96.
We are principally concerned with whether the evidence presented was sufficient to state a prima facie case, to reach the jury and to support a verdict for the plaintiff. Under a specific perils insurance policy the burden of proving a loss by a peril insured against is on the insured. S. Felicione & Sons Fish Co. v. Citizens Casualty Co. of N.Y., 430 F.2d 136, 138 (5th Cir. 1970), cert. denied, 401 U.S. 939, 91 S.Ct. 936, 28 L.Ed.2d 219 (1971). However, the standard for review of motions for directed verdict and for judgment notwithstanding the verdict prevents us from reaching determinations...
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