California Court of Appeal, 11640 Woodbridge Condominium Homeowners’ Association v. Farmers Insurance Exchange, B333848

First Party Property Insurance

 

“Named Perils” or “Specific Perils” Policies

 

“Specified-Risk” Coverage

 

“All-Risk” Policies

 

Marine Insurance

 

California Law

 

 

Sec. Sources: Tort Trial & Ins. Prac. L.J.; Couch on Insurance; New Appleman on Insurance Law Library Edition (2023).

 

 

 

First party property insurance indemnifies property owners against loss to property. (Another Planet Entertainment, LLC v. Vigilant Ins. Co. (2024) 15 Cal.5th 1106, 1122 (Another Planet), citing 10A Couch on Insurance (3d ed. 2005) § 148:1.) There are two general categories of first-party property insurance. “Named perils” or “specific perils” policies provide coverage only for the specific risks enumerated in the policy and exclude all other risks. (7 Couch on Insurance, supra, § 101:7.) “All-risk” policies provide coverage for all risks unless the specific risk is excluded.  (Ibid.; Another Planet, at p. 1122.) “‘Historically, property insurance grew out of the insurance against the risk of fire which became available for ships, buildings, and some commercial property at a time when most of the structures in use were made wholly or primarily of wood.’ (10A Couch on Insurance, supra, § 148:1.) ‘On this side of the Atlantic, fire insurance first developed in the middle of the eighteenth century. . . . This was insurance against only one cause of loss, or peril—fire. Over time other insured perils, such as wind and hail, were added. These insured perils were each specified in the insurance policy. For this reason, such insurance came to be known as “specified-risk” coverage. It insured property against the risk of damage or destruction resulting from specified causes of loss.’ (Abraham, Peril & Fortuity in Property & Liability Insurance (2001) 36 Tort Trial & Ins. Prac. L.J. 777, 782–783, fn. omitted.) By contrast, marine insurance developed ‘standardized forms that insured an ocean-going vessel and its cargo against “perils of the high seas.” Whereas the development of fire insurance for property on land focused on the danger presented by a specified cause of loss, marine insurance typically provided coverage for all risks associated with a particular shipment or voyage.’ (5 New Appleman on Insurance Law Library Edition (2023) § 41.01[1], fn. omitted.) ‘By the middle of the twentieth century, insurers adopted the marine insurance approach by offering all-risk commercial and homeowners’ property insurance. The operative phrase in such policies is contained in the section labeled “Perils Insured Against,” and provides coverage against the risk of “direct physical loss” to covered property.’ (Abraham, at p. 783, fn. omitted.)“ ‘As with any insurance, property insurance coverage is “triggered” by some threshold concept of injury to the insured property. Under narrow coverages like theft, the theft is itself the trigger. Under most coverages, however, the policy specifically ties the insurer’s liability to the covered peril having some specific effect on the property. In modern policies, especially of the all-risk type, this trigger is frequently “physical loss or damage” . . . .’ (10A Couch on Insurance, supra, § 148:46.)” (Another Planet, supra, 15 Cal.5th at pp. 1122–1123.)

 

 

 

(California Court of Appeal, March 28, 2025, 11640 Woodbridge Condominium Homeowners’ Association v. Farmers Insurance Exchange, B333848, Certified for Publication)

 

U.S. Supreme Court, Great Lakes Insurance SE v. Raiders Retreat Realty CO., LLC, Docket No. 22-500

Maritime Insurance Contract

 

Maritime Law

 

Choice-of-Law Provisions in Maritime Contracts

 

Federal Common Law Court

 

Circuit Split

 

 

 

“Federalism in admiralty and the scope of application of state law in maritime cases is one of the most perplexing issues in the law”.

 

 

 

 

 

This Court granted certiorari to resolve a split in the Courts of Appeals regarding the enforceability of choice-of law provisions in maritime contracts.

 

 

Maritime contracts often contain choice-of-law provisions that designate the law of a particular jurisdiction to control future disputes. The enforceability of those choice-of-law provisions is governed by federal maritime law. Applying federal maritime law in this case, we conclude that choice-of-law provisions in maritime contracts are presumptively enforceable, with certain narrow exceptions not applicable here.

 

 

Under the Constitution, federal courts possess authority to create and apply maritime law. Article III of the Constitution extends the federal judicial power to “all Cases of admiralty and maritime Jurisdiction.” U. S. Const., Art. III, § 2, cl. 1. That grant of jurisdiction contemplates a system of maritime law “‘coextensive with, and operating uniformly in, the whole country.’” Norfolk Southern R. Co. v. James N. Kirby, Pty Ltd., 543 U. S. 14, 28 (2004) (quoting American Dredging Co. v. Miller, 510 U. S. 443, 451 (1994)). The purposes of that uniform system include promoting “the great interests of navigation and commerce” and maintaining the United States’ “diplomatic relations.” 3 J. Story, Commentaries on the Constitution of the United States §1666, p. 533 (1st ed. 1833); see also Norfolk Southern, 543 U. S., at 28; Exxon Corp. v. Central Gulf Lines, Inc., 500 U. S. 603, 608 (1991). To maintain that uniform system, federal courts “make decisional law” for maritime cases. Norfolk Southern, 543 U. S., at 23. When a federal court decides a maritime case, it acts as a “federal common law court, much as state courts do in state common-law cases.” Air & Liquid Systems Corp. v. DeVries, 586 U. S. 446, 452 (2019) (internal quotation marks omitted); see Dutra Group v. Batterton, 588 U. S. 358, 360 (2019). “Subject to direction from Congress,” the federal courts fashion maritime rules based on, among other sources, “judicial opinions, legislation, treatises, and scholarly writings.” Air & Liquid Systems, 586 U. S., at 452; see also Exxon Co., U. S. A. v. Sofec, Inc., 517 U. S. 830, 839 (1996); East River S. S. Corp. v. Transamerica Delaval Inc., 476 U. S. 858, 864 (1986). Exercising that authority, federal courts follow previously “established” maritime rules. Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U. S. 310, 314 (1955).

 

 

No bright line exists for determining when a federal maritime rule is “established,” but a body of judicial decisions can suffice. See Bisso v. Inland Waterways Corp., 349 U. S. 85, 89–90 (1955). In the absence of an established rule, federal courts may create uniform maritime rules. See, e.g., Norfolk Southern, 543 U. S., at 23. When no established rule exists, and when the federal courts decline to create a new rule, federal courts apply state law. See Wilburn Boat, 348 U. S., at 320–321. For purposes of this general overview, we will stop there, as the “issue of federalism in admiralty and the scope of application of state law in maritime cases is one of the most perplexing issues in the law.” 1 T. Schoenbaum, Admiralty and Maritime Law §4:4, p. 268 (6th ed. 2018).

 

 

The initial question here is whether there is an established federal maritime rule regarding the enforceability of choice-of-law provisions. The answer is yes. Longstanding precedent establishes a federal maritime rule: Choice-of-law provisions in maritime contracts are presumptively enforceable. As a leading treatise says, it is “well established in admiralty that choice of law clauses” will “normally be enforced.” 1 Schoenbaum, Admiralty and Maritime Law §5:19, at 427; see also id., §4:4, at 275; 2 id., §19:6, at 431–432 (similar).

 

 

The Court has pronounced that forum-selection clauses in maritime contracts are “prima facie valid” under federal maritime law and “should be enforced unless” doing so would be “‘unreasonable’ under the circumstances.” The Bremen v. Zapata Off-Shore Co., 407 U. S. 1, 10 (1972); see also Carnival Cruise Lines, Inc. v. Shute, 499 U. S. 585, 593–594 (1991).

 

 

(…) Moreover, by supplying some advance assurance about the governing law, choice-of-law provisions help maritime shippers decide on the front end “what precautions to take” on their boats, American Dredging, 510 U. S., at 454, and enable marine insurers to better assess risk, see Brief for American Institute of Marine Underwriters et al. as Amici Curiae 12–13. Choice-of-law provisions therefore can lower the price and expand the availability of marine insurance. In those ways, choice-of-law provisions advance a fundamental purpose of federal maritime law: the “‘protection of maritime commerce.’” Exxon Corp., 500 U. S., at 608 (quoting Sisson v. Ruby, 497 U. S. 358, 367 (1990)).

 

 

Rather, the Wilburn Boat Court simply determined what substantive rule applied when a party breached a warranty in a marine insurance contract. See id., at 311–316. The Court concluded that no “established federal admiralty rule” governed the warranty issue. Id., at 314; see also id., at 314–316. And the Court declined to create a federal maritime rule on that question, both because States historically regulated insurance and because federal courts were poorly positioned to “unify insurance law on a nationwide basis.” Id., at 319; see also id., at 316–320. The Court therefore ordered that the warranty issue be tried “under appropriate state law.” Id., at 321.

 

 

(…) Moreover, Wilburn Boat held only that state law applied as a gap-filler in the absence of a uniform federal maritime rule on a warranty issue. 348 U. S., at 314–316. Here, however, no gap exists because a uniform federal rule governs the enforceability of choice-of-law clauses in maritime contracts.

 

 

After Wilburn Boat, maritime actors realized that a lot would depend on which State’s law governed each individual maritime dispute—a question that would be unclear in advance. See 2 Schoenbaum, Admiralty and Maritime Law §19:9. Choice-of-law provisions soon emerged as a ready answer to that problem. See W. von Bittner, The Validity and Effect of Choice of Law Clauses in Marine Insurance Contracts, 53 Ins. Counsel J. 573, 573, 578–579 (1986).

 

 

(…) The bottom line: As a matter of federal maritime law, choice-of-law provisions in maritime contracts are presumptively enforceable.

 

Of course, to say that choice-of-law clauses are presumptively enforceable as a matter of federal maritime law means that there are exceptions when the clauses are not enforceable. The parties agree that the exceptions are narrow—indeed, Raiders “freely concedes that in most every instance, a choice-of-law provision contained in a maritime insurance contract will be effective.” Tr. of Oral Arg. 54. In particular, the parties agree that courts should disregard choice-of-law clauses in otherwise valid maritime contracts when the chosen law would contravene a controlling federal statute, see Knott v. Botany Mills, 179 U. S. 69, 77 (1900), or conflict with an established federal maritime policy, see The Kensington, 183 U. S. 263, 269–271 (1902). For example, The Kensington declined to enforce a choice-of-law clause because the chosen law would have released a carrier from liability for negligence—a result that federal maritime law forbids. See ibid. The parties further agree that, as a matter of federal maritime law, courts may disregard choice-of-law clauses when parties can furnish no reasonable basis for the chosen jurisdiction. Cf. Carnival Cruise, 499 U. S., at 594–595; The Bremen, 407 U. S., at 10, 16–17. For example, it would be unreasonable to pick the law of a distant foreign country without some rational basis for doing so. That said, the “no reasonable basis” exception must be applied with substantial deference to the contracting parties, recognizing that maritime actors may sometimes choose the law of a specific jurisdiction because, for example, that jurisdiction’s law is “well developed, well known, and well regarded.” Brief for American Institute of Marine Underwriters et al. as Amici Curiae 17.

 

 

Unable to successfully invoke those exceptions, Raiders says that federal maritime law should recognize an additional exception when enforcing the law of the State designated by the contract would contravene the fundamental public policy of the State with the greatest interest in the dispute. We disagree with that argument. Indeed, Raiders’ request for that novel maritime exception is essentially a repackaged version of its initial argument that the enforceability of choice-of-law provisions in maritime contracts should be determined by state law. The argument fares no better here, for essentially the same reasons.

 

 

(…) We disagree with Raiders’ related suggestion that we adopt the choice-of-law approach set forth in §187(2)(b) of the Second Restatement of Conflict of Laws. In relevant part, that subsection says that choice-of-law provisions are enforceable unless they conflict with “a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue.” Restatement (Second) of Conflict of Laws §187(2)(b). As the commentary to the Restatement carefully explains, however, that rule arose out of interstate cases and does not deal directly with federal-state conflicts, including those that arise in federal enclaves like maritime law. See id. §2, Comment c; §3, Comment d; §10, Comment a.

 

 

 

 

Secondary sources: T. Schoenbaum, Admiralty and Maritime Law §4:4, p. 268 (6th ed. 2018); J. Coyle, The Canons of Construction for Choice-of-Law Clauses, 92 Wash. L. Rev. 631, 633, n. 6 (2017); M. Sturley, Restating the Law of Marine Insurance: A Workable Solution to the Wilburn Boat Problem, 29 J. Mar. L. & Com. 41, 45 (1998); G. Gilmore & C. Black, Law of Admiralty §§1–17, 2–8 (2d ed. 1975); W. von Bittner, The Validity and Effect of Choice of Law Clauses in Marine Insurance Contracts, 53 Ins. Counsel J. 573, 573, 578–579 (1986); Restatement (Second) of Conflict of Laws §187, Comment f, p. 567 (1969).

 

 

 

 

(U.S. Supreme Court, Great Lakes Insurance SE v. Raiders Retreat Realty CO., LLC, Feb. 21, 2024, Docket No. 22-500, J. Kavanaugh, Unanimous)

 

U.S. Court of Appeals for the Eleventh Circuit, Travelers Property Casualty Company of America v. Ocean Reef Charters LLC, Docket No. 21-14509

Insurance Law

 

Marine Insurance Warranty

 

Declaratory Action

 

Anti-Technical Statute (to Prevent the Insurer from Avoiding Coverage on a Technical Omission Playing No Part in the Loss)

 

Admiralty Law

 

New York State Law

 

Florida Law

 

 

 

 

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 9:18-cv-81270-RAR

 

 

Insurance coverage dispute between Travelers Property Casualty Company of America (“Travelers”) and Ocean Reef Charters LLC, (“Ocean Reef”), a Florida Limited Liability Company. Ocean Reef owned a 92-foot yacht, the M/Y My Lady, which was destroyed during Hurricane Irma in September 2017. Ocean Reef had a $2 million insurance policy with Travelers covering property damage to the yacht. One of the My Lady’s representatives for Ocean Reef with respect to the boat, Richard Gollel, moored the yacht to a dock behind his Pompano Beach, Florida residence as the hurricane approached. But the yacht was destroyed by what registered as a Category 4 storm.

 

 

Travelers tried to avoid paying for the loss by preemptively seeking a declaratory judgment that the policy did not cover the loss because Ocean Reef did not have a full-time, licensed captain and crew for the yacht during the hurricane, as required under warranties in the insurance policy. It brought the declaratory action in the Western District of New York, alleging that Ocean Reef had an office and its principal place of business in Rochester, New York. Under New York state law, an insured forfeits coverage by violating a marine insurance warranty, regardless of whether the violation had any effect on the accident. The same is true under federal admiralty law as applied to at least some marine insurance warranties. Travelers Prop. Cas. Co. of Am. v. Ocean Reef Charters LLC, 996 F.3d 1161, 1167–68 (11th Cir. 2021).

 

 

2 See Com. Union Ins. Co. v. Flagship Marine Servs., Inc., 190 F.3d 26, 31–32 (2d Cir. 1999) (discussing how, “under . . . the law of most states,” including New York, “warranties in maritime insurance contracts must be strictly complied with, even if they are collateral to the primary risk that is the subject of the contract, if the insured is to recover” (citing N.Y. Ins. L. § 3106(c))). “However, unlike New York and the majority of states, Florida does not require strict compliance with all warranties, but it does preclude recovery where the ‘breach or violation increased the hazard by any means within the control of the insured.’” Id. at 32 (quoting Fla. Stat. § 627.409(2)). (Fn. 2).

 

 

3 Florida Statute § 627.409(2) is a “so-called ‘anti-technical statute.’” Travelers, 996 F.3d at 1164. The statute “was ‘designed to prevent the insurer from avoiding coverage on a technical omission playing no part in the loss.’” Id. at 1170 (quoting parenthetically Pickett v. Woods, 404 So. 2d 1152, 1153 (Fla. 5th Dist. Ct. App. 1981)). (Fn. 3).

 

 

On remand, because Travelers offered no expert witness—such as a licensed captain competent to speak to the issue—to prove that the lack of a full-time captain and crew played a role in the destruction of the yacht during Irma, the District Court granted summary judgment to Ocean Reef. We affirm.

 

 

Ocean Reef’s insurance policy had contained two express warranties since Ocean Reef first insured the My Lady with Travelers in 2014. One was called the “Captain Warranty.” The Captain Warranty provides: It is warranted you employ a professional captain for the yacht shown on the Declarations Page of this policy. Such captain shall be employed full time and approved by us. We will pay up to $1,500 for the cost of hiring a replacement captain, approved by us, if your captain is unable to perform his regular duties due to a medically certified cause. The other warranty was called the “Crew Warranty.” The Crew Warranty provides: You employ 1 full time or part time professional crew for your yacht shown on the Declarations Page of this policy. We also provide coverage for any additional, temporary crew you employ.

 

 

(…) As indicated supra, Travelers likely engaged in a strategy to avoid the application of Florida’s anti-technical statute, Fla. Stat. § 627.409(2). Under that statute, it would need to prove that the lack of a full-time captain and crew played a material role in the My Lady’s sinking to avoid paying Ocean Reef. On the other hand, under the federal rule that applies to some marine insurance warranties, Travelers, 996 F.3d at 1167–68, “and the law of most states,” including New York, “warranties in maritime insurance contracts must be strictly complied with, even if they are collateral to the primary risk that is the subject of the contract, if the insured is to recover.” Com. Union Ins. Co. v. Flagship Marine Servs., Inc., 190 F.3d 26, 31–32 (2d Cir. 1999) (citing N.Y. Ins. L. § 3106(c)).

 

 

(…) On February 25, 2019, Ocean Reef disclosed Captain Thomas Danti and Allister Dredge, a marine surveyor, as expert witnesses. They attached both experts’ reports to the disclosure. The disclosure included both experts’ qualifications, their opinions, and the bases for their opinions. See Fed. R. Civ. P. 26(a)(2). Captain Danti opined, after interviewing Gollel and inspecting the site, that the “storm preparations by Mr. Gollel met the standard of care of a professional Mariner.” He also opined that “the main cause of the vessel’s damage was unforeseeable failure of a mooring pile.” So, “the lack of a full time captain would not have prevented the yacht from becoming a total loss.” Danti’s bottom-line conclusion was: “There was no increased hazard in risk to the vessel by not having a full time captain at the time of the incident.” Dredge, the surveyor, also opined that the damage to the yacht was a “constructive total loss,” as repairs would cost $2.5 million.

 

 

(…) For the reasons discussed in Travelers Property Casualty Co. of America v. Ocean Reef Charters LLC, 996 F.3d 1161 (11th Cir. 2021), Florida law applies.

 

 

The Florida anti-technical statute we must apply provides: A breach or violation by the insured of a warranty, condition, or provision of a wet marine or transportation insurance policy, contract of insurance, endorsement, or application does not void the policy or contract, or constitute a defense to a loss thereon, unless such breach or violation increased the hazard by any means within the control of the insured. Fla. Stat. § 627.409(2). “The statute is designed to prevent the insurer from avoiding coverage on a technical omission playing no part in the loss.” Pickett, 404 So. 2d at 1153. Whether an insured increased the hazard by noncompliance with a warranty “is typically a question of fact for the jury.” Serendipity at Sea, LLC v. Underwriters at Lloyd’s of London Subscribing to Pol’y No. 187581, 56 F.4th 1280, 1290 (11th Cir. 2023) (citing Pearl Assurance Co. v. S. Wood Prods. Co., 216 F.2d 135, 136 (5th Cir. 1954)).

 

 

The effect of Ocean Reef’s failure to retain a full-time captain and crew leading up to and during Hurricane Irma is exactly the kind of issue that requires expert testimony. The question is hypothetical. Discussing what would have happened if a captain were in charge of the My Lady during Hurricane Irma necessarily requires hypothesizing. “And the ability to answer hypothetical questions is ‘[t]he essential difference’ between expert and lay witnesses.” United States v. Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005).

 

 

 

 

 

Secondary Sources: Weinstein’s Federal Evidence § 701.03[1] (2023); Stephen A. Saltzburg et al., 3 Federal Rules of Evidence Manual § 701.02[7] (Matthew Bender 12th ed.)

 

 

 

 

(U.S. Court of Appeals for the Eleventh Circuit, June 23, 2023, Travelers Property Casualty Company of America v. Ocean Reef Charters LLC, Docket No. 21-14509, Publish)

U.S. Court of Appeals for the First Circuit, QBE Seguros v. Carlos A. Morales-Vázquez, Docket No. 19-1503

 

Maritime Law

 

Admiralty

 

Marine Insurance Contracts

 

Doctrine of Uberrimae Fidei

 

Duty of Utmost Good Faith

 

Warranty of Truthfulness

 

False Statement

 

Actual Reliance is Not a Necessary Prerequisite for an Insurer to Void a Marine Insurance Policy under the Doctrine of Uberrimae Fidei

 

Materiality of a False Statement or an Omission, Without More, Provides a Sufficient Ground for Voiding Such a Policy

 

Waiver and Estoppel May Be Affirmative Defenses

 

Should Federal or State Common Law Apply?

 

English Admiralty Law

 

 

This appeal involves a dispute between a boat owner (who purchased a policy of marine insurance without disclosing, among other things, a prior grounding) and his insurance company. Resolving the appeal requires us to revisit the doctrine of uberrimae fidei — an entrenched principle of maritime law that imposes a duty of utmost good faith on the parties to marine insurance contracts. Concluding, as we do, that the district court faithfully applied this doctrine, we affirm the entry of judgment in favor of the insurer.

 

As part of his application for this insurance policy, Morales left blank the spaces provided for answers to questions asking him to describe his prior boating history and all accidents related to any vessel he had previously owned, controlled, and/or operated.

 

He omitted the remaining information called for by section six even though the application form plainly stated that "if incorrect answers are provided (either by error, omission or neglect), I will be in breach of this warranty and the policy, if issued, will be void from inception."

 

We think it useful to start by sketching the evolution of the doctrine of uberrimae fidei. The Latin phrase "uberrimae fidei" loosely translates as "utmost good faith." See Black's Law Dictionary (10th ed. 2014). As relevant here, the doctrine requires parties to a marine insurance contract to disclose all known facts or circumstances material to an insurer's risk. See Windsor Mount Joy Mut. Ins. Co. v. Giragosian, 57 F.3d 50, 54-55 (1st Cir. 1995). Under the doctrine, an insurer may void a marine insurance policy if its insured fails to disclose "all circumstances known to the insured and unknown to the insurer" that materially impact the insurer's risk calculus. Caitlin at Lloyd's v. San Juan Towing & Marine Servs., Inc., 778 F.3d 69, 83 (1st Cir. 2015) (emphasis in original); cf. Stipcich v. Metro. Life Ins. Co., 277 U.S. 311, 316 (1928) (holding to like effect with respect to certain contracts outside marine insurance context).

 

The origins of the doctrine can be traced back to eighteenth-century London, which was — and remains — a global insurance hub. In its nascent form, the doctrine applied to a myriad of insurance contracts across a wide swath of industries. As early as 1766, Lord Mansfield recognized that insurance contracts impose a heightened duty of good faith to prevent a party from omitting or concealing facts that would induce the counterparty "into a bargain, from his ignorance." Carter v. Boehm (1766) 97 Eng. Rep. 1162, 1164 (K.B.). Such a requirement was rooted in practical wisdom, recognizing that an insurer often lacked the ability to verify the insured's representations before issuing a policy. See Thomas J. Schoenbaum, Admiralty and Maritime Law § 19:14, at 460 (6th ed. 2018). This practical wisdom still rings true when applied to marine insurance — an industry in which, for example, a policy may have to be issued in London, on a time-sensitive basis, for a vessel berthed halfway across the globe.

 

American courts first recognized the doctrine of uberrimae fidei in connection with marine insurance contracts in the early nineteenth century. See McLanahan v. Universal Ins. Co., 26 U.S. (1 Pet.) 170, 185 (1828). In 1882, the Supreme Court confirmed the strict disclosure requirements that the doctrine imposed on an insured. See Sun Mut. Ins. Co. v. Ocean Ins. Co., 107 U.S. 485, 510-11 (1883).

 

For some time, American and English law concerning marine insurance continued to develop in parallel through a parade of judicial decisions. Parliament, however, codified the by-then-venerable doctrine of uberrimae fidei by including it in the Marine Insurance Act of 1906 (1906 MIA). See Marine Insurance Act 1906, 6 Edw. 7 c. 41, § 17 (U.K.). Congress, however, remained silent; and American courts continued to develop their own federal common law of admiralty and continued to interpret marine insurance policies as incorporating, by implication, the doctrine of uberrimae fidei. See, e.g., San Juan Towing, 778 F.3d at 82; N.Y. Marine & Gen. Ins. Co. v. Cont'l Cement Co., 761 F.3d 830, 839 (8th Cir. 2014); AGF Marine Aviation & Transp. v. Cassin, 544 F.3d 255, 263 (3d Cir. 2008); Certain Underwriters at Lloyd's, London v. Inlet Fisheries Inc., 518 F.3d 645, 650 (9th Cir. 2008); HIH Marine Servs., Inc. v. Fraser, 211 F.3d 1359, 1362 (11th Cir. 2000); Puritan Ins. Co. v. Eagle S.S. Co. S.A., 779 F.2d 866, 870 (2d Cir. 1985).

 

Parliament lately adopted a number of insurance reforms. As relevant here, Parliament passed the Insurance Act of 2015, which (among other things) effectively amended the 1906 MIA to preclude an insurer from voiding a marine insurance policy by recourse to the doctrine of uberrimae fidei. See Insurance Act 2015, c.4, § 14 (U.K.) ("Any rule of law permitting a party to a contract of insurance to avoid the contract on the ground that the utmost good faith has not been observed by the other party is abolished."). Even so, Congress did not follow Parliament's lead.

 

This lack of congressional action is significant. As the federal common law of admiralty developed, the Supreme Court acknowledged that congressional silence left room for courts, among others, to fill the vacuum. See Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 321 (1955) ("We, like Congress, leave the regulation of marine insurance where it has been — with the States.").

 

(This means, of course, that questions sometimes arise in maritime cases as to whether federal or state common law should apply. See San Juan Towing, 778 F.3d at 76-80. Here, however, the parties present their uberrimae fidei arguments exclusively in terms of federal common law, and we therefore may accept the parties' plausible view that federal common law supplies the substantive rules of decision. Cf. Borden v. Paul Revere Life Ins. Co., 935 F.2d 370, 375 (1st Cir. 1991) (holding that, in diversity jurisdiction, court may accept parties' plausible agreement as to which state's law applies).)

 

Standard Oil offers us two important takeaways. First, American courts are not bound by legal developments in the United Kingdom. And even though the Standard Oil Court was speaking of judicial decisions, we think it follows, a fortiori, that acts of Parliament are equally non-binding. Second, although harmony between American and English admiralty law is desirable, "our practice is no more than to accord respect to established doctrines of English maritime law." The respect accorded by American courts to English maritime law stems from the wisdom of the particular doctrine, not from either the acceptance or the rejection of that doctrine by Parliament. It follows, we think, that federal courts tasked with hearing admiralty cases should take heed of developments in English law, but they are not obliged to change course merely because Parliament acts to alter a previously entrenched principle.

 

(…) We have never held that actual reliance is a necessary prerequisite for an insurer to void a marine insurance policy under the doctrine of uberrimae fidei. Rather, we have held that the materiality of a false statement or an omission, without more, provides a sufficient ground for voiding such a policy.

 

(If the named insured has, before or after a loss made a false statement or representation with respect to this insurance or has concealed or misrepresented any material fact or circumstance relating to this insurance, this policy shall be void and without effect. The false statement or representation or concealment need not be related to the damages or loss claimed in order to void the entire policy.

This language embodies the core of the uberrimae fidei
that omission or misrepresentation of a material fact is a sufficient ground, in and of itself, to allow an insurer to void a policy of marine insurance).

 

(…) Contractual requirements may operate as affirmative defenses. For example, waiver and estoppel may be affirmative defenses to a claim that an insured has committed a breach of a policy warranty.

 

 

Secondary sources: Thomas J. Schoenbaum, Admiralty and Maritime Law § 19:14, at 460 (6th ed. 2018); Thomas J. Schoenbaum, The Duty of Utmost Good Faith in Marine Insurance Law: A Comparative Analysis of American and English Law, 29 J. Mar. L. & Com. 1, 11 (1998).

 

 

(U.S. Court of Appeals for the First Circuit, Jan 19, 2021, QBE Seguros v. Carlos A. Morales-Vázquez, Docket No. 19-1503)

 

 

 

 

U.S. Court of Appeals for the Eleventh Circuit, Map Geico Marine Insurance Company, v. James Shackleford, Docket No. 18-12105

Maritime Law

Admiralty Jurisdiction

Admiralty Law

Insurance Law

Marine Insurance Contracts

Maritime Contracts

Maritime Doctrine of uberrimae fidei

Policy Construction

Waiver

Right to Contract Out of Federal Maritime Law

Florida Law

(…) In March 2016, Shackleford obtained a liability-only policy from Geico Marine.

General Conditions: (…) CRUISING LIMITS: While afloat, the insured Yacht shall be confined to the waters indicated below:
(There is no coverage outside of this area without the Company’s written permission.)

U.S. Atlantic and Gulf Coastal waters and inland waters tributary thereto between Eastport, ME and Brownsville, TX, inclusive and the waters of the Bahamas including the Turks and Caicos, however the boat must be north of Cape Hatteras, NC from June 1 until November 1 annually.

The day after the policy issued, Shackleford asked Geico Marine to change the policy to “Port Risk Ashore.” That restriction provides no coverage for navigation; instead, it provides coverage only while the vessel is out of the water. Geico Marine issued an endorsement and updated declarations page adding the restriction that same day. Because coverage now applied only if the vessel was ashore, the updated declarations page removed the original navigational limit that required the vessel to be north of Cape Hatteras during hurricane season if afloat.

(…) In May 2016, Shackleford called Geico Marine to seek removal of the Port Risk Ashore restriction so he could sail the vessel to Fort Lauderdale. He also confirmed that the policy now insured the vessel’s hull for $264,000 and that the vessel had “full coverage” for the voyage. On May 27, 2016, Geico Marine sent Shackleford an email confirming that it had removed the Port Risk Ashore restriction. Attached to the email was an endorsement removing the restriction and an updated declarations page. The updated declarations page reinstated the original navigational limit that required the vessel “while afloat” to be “north of Cape Hatteras, NC from June 1 until November 1 annually.”

(…) On May 28, one day after Geico Marine removed the Port Risk Ashore restriction and reinstated the navigational limit, Shackleford set sail from Taylor Boatworks to Fort Lauderdale. After arriving in Fort Lauderdale, Shackleford anchored the vessel in nearby Lake Sylvia. In June 2016, a storm caused the vessel to drag anchor and drove her into a sea wall, leading her to take on water and suffer other damage. Shackleford filed a claim under his insurance policy, but Geico Marine denied coverage.

After denying coverage, Geico Marine filed a declaratory-judgment action against Shackleford, 28 U.S.C. § 2201, and invoked admiralty jurisdiction, id. § 1333. Geico Marine sought a declaration that the policy was void ab initio under the maritime doctrine of uberrimae fidei, or utmost good faith, because Shackleford failed to disclose material facts about the vessel when procuring insurance. And it sought a declaration that coverage was barred by the policy’s navigational limit, which required the vessel to be north of Cape Hatteras, North Carolina, during hurricane season.

Marine insurance contracts qualify as maritime contracts, which fall within the admiralty jurisdiction of the federal courts and are governed by maritime law. AIG Centennial Ins. Co. v. O’Neill, 782 F.3d 1296, 1302 & n.6 (11th Cir. 2015) (citing U.S. Const. art. III, § 2, cl. 1 and 28 U.S.C. § 1333). Even so, “it does not follow that every term in every maritime contract can only be controlled by some federally defined admiralty rule.” Id. at 1302 (alteration adopted) (quoting Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310, 313 (1955)). “In the absence of a ‘judicially established federal admiralty rule,’ we rely on state law when addressing questions of marine insurance.” Id. (quoting Wilburn Boat, 348 U.S. at 314); see also Bryan A. Garner et al., The Law of Judicial Precedent § 69, at 570 (2016). The parties agree that Florida law fills any gaps here.

We reject Shackleford’s arguments and agree with Geico Marine that the navigational limit bars coverage. And because we agree with Geico Marine on this issue, we need not address its argument that Shackleford breached a duty of uberrimae fidei. The navigational limit is dispositive.

No established rule of maritime law governs whether a navigational limit is part of a marine insurance contract, so we apply Florida law to determine whether the policy contained a navigational limit. AIG Centennial, 782 F.3d at 1302. Under Florida law, we first look to the text of the policy and construe the policy “in accordance with its plain language.” Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So. 2d 161, 165 (Fla. 2003). But “if the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage,” the policy is ambiguous and we must construe it in favor of coverage. Id. (alterations adopted). That “a provision is complex and requires analysis for application” does not “automatically” mean it is ambiguous. Id. Before concluding that a provision is ambiguous, we must “read the policy as a whole, endeavoring to give every provision its full meaning and operative effect.” Id. at 166.

Reading the policy as a whole, we readily conclude that it unambiguously contained a navigational limit when the loss occurred.

(…) No established rule of maritime law governs the waiver of a navigational limit, so we apply Florida law to determine whether Geico Marine waived its right to enforce that provision. AIG Centennial, 782 F.3d at 1302. In Florida, implied waiver of a contractual right requires “conduct which implies the voluntary and intentional relinquishment of a known right.” Raymond James Fin. Servs., Inc. v. Saldukas, 896 So. 2d 707, 711 (Fla. 2005). Shackleford’s theory of implied waiver appears to be that Geico Marine waived the navigational limit by agreeing to a course of conduct that it knew would make it impossible for Shackleford to comply with the requirement that his vessel be north of Cape Hatteras by June 1. We are unpersuaded.

Geico Marine knew Shackleford was taking the vessel to Fort Lauderdale for “extensive repairs,” and it could reasonably have expected that Shackleford would comply with the navigational limit by having the vessel hauled ashore for repairs in Fort Lauderdale by June 1. The only way Geico Marine’s conduct could have suggested it intended to waive the navigational limit is if the voyage to Fort Lauderdale was impossible to complete by June 1. But Shackleford conceded at oral argument that the vessel arrived in Fort Lauderdale by June 1 and that he intended to haul the vessel ashore upon arrival, which would have complied with the navigational limit.

That the vessel arrived in Fort Lauderdale by June 1 shows that it was possible to complete the voyage by June 1. So Geico Marine plainly did not agree to a course of conduct that it knew would make compliance with the navigational limit impossible. Nothing in this record supports the conclusion that Geico Marine voluntarily and intentionally relinquished its right to enforce the navigational limit. The district court erred in ruling otherwise.

Even if Geico Marine did not waive the navigational limit, Shackleford argues that his breach of the navigational limit does not bar coverage because Florida law does not strictly enforce express warranties in marine insurance contracts. As Shackleford acknowledges, federal maritime law requires “strict” or absolute enforcement of express navigational warranties. Lexington Ins. Co. v. Cooke’s Seafood, 835 F.2d 1364, 1366 (11th Cir. 1988); see also Strict, Black’s Law Dictionary (11th ed. 2019) (“Absolute; requiring no showing of fault.”). And established federal maritime rules, like the rule requiring absolute enforcement of express navigational warranties, ordinarily control “even in the face of contrary state authority.” AIG Centennial, 782 F.3d at 1303. But Shackleford contends that he and Geico Marine contracted out of the federal maritime rule of enforcement and instead selected Florida’s more forgiving rule.

Although parties to a marine insurance policy are generally free to contract out of federal maritime law, King v. Allstate Ins. Co., 906 F.2d 1537, 1540–42 (11th Cir. 1990), we are not persuaded that Shackleford and Geico Marine did so.

The phrase “terms of this policy” appears in a provision titled “Conformity to Law,” and as its name suggests, the provision operates to conform any illegal policy terms to Florida law. Provisions like this one exist to address conflicts between the contract the parties wrote and what the law requires.

Shackleford effectively asks us to transform the policy’s conformity-to-law provision into a choice-of-law provision. By default, federal maritime law displaces contrary state law when construing a marine insurance contract. AIG Centennial, 782 F.3d at 1302–03. Shackleford would have us read the conformity- to-law provision as reversing this default rule, so that state law displaces any contrary federal maritime rule. But the provision does no such thing. The parties could have included a choice-of-law provision selecting state law over federal law, but they did not. And we “may not rewrite the parties’ contract, add meaning that is not present, or otherwise reach results contrary to the intentions of the parties.” Taurus Holdings, 913 So. 2d at 532.

Because the parties did not contract out of maritime law, we must apply the federal rule requiring absolute enforcement of express navigational limits. Under that rule, “breach of an express navigational warranty by the insured releases the insurance company from liability even if compliance with the warranty would not have avoided the loss.” Lexington, 835 F.2d at 1366. Here, the policy contained a navigational limit that conditioned coverage on the vessel being “north of Cape Hatteras, NC from June 1 until November 1 annually” if the vessel was “afloat.” The vessel suffered damage while afloat during a storm in Florida in early June. Because the vessel was outside of the covered navigational area when the loss occurred, the policy does not cover the loss.

(U.S. Court of Appeals for the Eleventh Circuit, December 17, 2019, Map Geico Marine Insurance Company, v. James Shackleford, Docket No. 18-12105, For Publication)