Marine Charter & Storage, Ltd., Inc. v. All Underwriters at Lloyds of London Subscribing to Cover Notes 2H04/1291
| Decision Date | 12 September 1990 |
| Docket Number | Nos. 88-2272,88-2856,s. 88-2272 |
| Citation | 568 So.2d 944 |
| Court | Florida District Court of Appeals |
| Parties | 15 Fla. L. Weekly D2279, 15 Fla. L. Weekly D2481 MARINE CHARTER & STORAGE, LTD., INC., Appellant/Cross Appellee, v. ALL UNDERWRITERS AT LLOYDS OF LONDON SUBSCRIBING TO COVER NOTES 2H04/1291; 2H173; 2HH0592; 2H173637; Orion Insurance Co. Ltd., et al, Appellees/Cross Appellants, and C.A. Hansen Corp., Appellee. |
Ben J. Weaver and Kimberly Whitaker of Weaver, Weaver & Petrie, P.A., Fort Lauderdale, for appellant/cross appellee.
G. Morton Good and Robert C. Shearman of Kelley Drye & Warren, Miami, for appellee/cross appellant all Underwriters at Lloyds of London.
Lloyds of London insured a ship which, upon arrival from Greece, was taken to Anchorage Marine on the New River in Fort Lauderdale for extensive refitting, renovation and repair. In order to obtain an insurance premium reduction, the ship requested a "laid-up and out of commission" endorsement to run "from January 1, 1983 to May 1, 1983 at Anchorage Marine Fort Lauderdale, Florida." During this time-frame, the ship was moved to another repair yard one-half mile down the river and while making the return trip to Anchorage Marine capsized and sank. Thereafter, Lloyds denied coverage claiming the two trips violated the policy endorsement. The trial court entered a summary judgment in favor of Lloyds, a disposition of which we approve, though we arrive at an affirmance by somewhat different rationales.
During the long, drawn-out litigation of this matter over the last seven years, the controversy was removed to federal court where Lloyds also successfully sought and obtained a summary judgment in its favor on the issue of coverage. Thereafter, the federal court decided it had no jurisdiction and the matter was returned to the state court. Upon consideration anew, the state trial judge decided that the summary judgment in federal court was "dispositive" and that he was "required to consider that this [the federal summary judgment] is the dispositive act of an earlier judge in this case." Frankly, we disagree with this reasoning, but nevertheless conclude that the trial court was right for the wrong reason. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979). Thus, the summary judgment in favor of Lloyds was appropriate.
Since we are of the opinion that the summary judgment granted in the trial court was proper, there is no need for protracted discussion as to why we do not believe the federal order was binding. Suffice it to say, by its own admission, the federal court had no jurisdiction, so its order could hardly be dispositive. See Desert Empire Bank v. Insurance Co. of North America, 623 F.2d 1371 (9th Cir.1980); Wilson v. Sandstrom, 317 So.2d 732, 741 (Fla.1975).
Turning to the question of whether there was coverage, the policy endorsement language is perfectly clear and unambiguous. Specifically, it requires that the ship remain located "at Anchorage Marine" 1 and be "laid-up and out of commission." The ship did not remain at Anchorage Marine and the loss was occasioned because it was moved to another facility one-half mile away. This move was not permitted under the terms of the endorsement and its movement cannot be excused as a deadweight tow. On the return trip, when the accident occurred, the ship's own engines were used to help navigate while it was clearly unfit for any voyage. No one denies that the ballast had been removed as had the porthole covers adjacent to the waterline.
There have been several cases construing the term "laid-up and out of commission" and they have not all reached uniform conclusions. Robinson v. Home Insurance Co., 73 F.2d 3 (5th Cir.1934); cert. denied, 294 U.S. 712, 55 S.Ct. 508, 79 L.Ed. 1246 (1935); Providence Washington Insurance Co. v. Lovett, 119 F.Supp. 371 (D.R.I.1953). However, we have found no case which supports the proposition that a ship operating on a navigable stream under its own power is "laid-up." By contrast, there is a case from the South Carolina Supreme Court, very similar to the one at bar, in which the boat was moved only three hundred yards from its dock to effect certain repairs while under a "laid-up and out of commission" policy of insurance. Tsalapatas v. Phoenix Insurance Co., 236 S.C. 508, 115 S.E.2d 49 (1960). We agree with the ultimate paragraph in that case:
We are of the opinion that the risk of striking an underwater object while the boat was being operated under its own power was one of the risks sought to be obviated by the terms of the warranty.
Similarly, in the case at bar, the ship ran aground while using its own power to help navigate. As a result, it listed and water poured through the open portholes causing it to founder. See also Campbell v. Hartford Fire Insurance Co., 533 F.2d 496 (9th Cir.1976); Marine Charter and Storage, Ltd. v. All Underwriters at Lloyds of London, 628 F.Supp. 740 (S.D.Fla.1986). Such a happening was not covered under the endorsement. It is argued that the ship had, in fact, arrived back within the geographical limits of Anchorage Marine when the mishap occurred. We do not believe that this argument is persuasive. First of all, the ship was returning from a policy-forbidden, and not yet completed, voyage and this was much more than a deadweight transfer from one part of the same facility to another. Second, the navigation in progress at the moment of running aground was not compatible with the requirement that the ship be laid-up and out of commission. Accordingly, we affirm.
In view of the result reached above, we do not find it necessary to address the remaining points on appeal, except that the cost judgment is also affirmed.
An interesting development has occurred in this case since oral argument. Simultaneously with the penning of this opinion, and some four months after oral argument,...
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