Olympo v. Certain

• Court: Court of Appeals for the First Circuit
• Decided: December 30, 1996
• Docket: 96-1280
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


____________________



          No. 96-1280


OLYMPO TRANSPORT COMPANY OF PUERTO RICO, ET AL.,



                               Plaintiffs, Appellants,



                                          v.



                     CERTAIN INSURANCE COMPANIES AT THE INSTITUTE

                           OF LONDON UNDERWRITERS, ET AL.,



                                Defendants, Appellees.



                                 ____________________



                                        ERRATA



               The  published opinion of this  Court issued on December 30,

          1996, is amended as follows:



               Cover sheet:  delete the [Hon. Carmen Consuelo Cerezo,  U.S.
                                                                       ____

          District Judge] and insert the [Hon. Salvador E. Casellas] in its
          ______________

          place.



UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 96-1280



                 OLYMPO TRANSPORT COMPANY OF PUERTO RICO, INC. ET AL,



                               Plaintiffs, Appellants,



                                          v.



                         CERTAIN INSURANCE COMPANIES AT THE 

                      INSTITUTE OF LONDON UNDERWRITERS, ET AL.,



                                Defendants, Appellees.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                             [Hon. Salvador E. Casellas]



                                 ____________________



                                        Before



                      Coffin and Campbell, Senior Circuit Judges,
                                           _____________________



                             and DiClerico,* Chief Judge.
                                             ___________



                                 ____________________



            Paul  E.  Calvesbert,   with  whom  Jose  E.  Alfaro-Delgado   and
            ____________________                ________________________

        Calvesbert, Alfaro & Lopez-Conway were on brief for appellants.
        _________________________________

            Edward M.  Cuddy, III, with whom  James W.  Carbin, Christopher B.
            _____________________             ________________  ______________

        Turcotte, and Kroll & Tract were on brief for appellees.
        ________      _____________



                                 ____________________



                                  December 30, 1996

                                 ____________________


____________________



        *Of the District of New Hampshire, sitting by designation.



CAMPBELL, Senior Circuit Judge.  Plaintiffs are two
                                ____________________



            non-vessel operating common carriers and an insurance carrier



            who have sued in  the district court to recover  insurance on



            account of damages allegedly suffered from the loss overboard



            of several cargo containers that  were being carried by barge



            from Jacksonville,  Florida, to San  Juan, Puerto Rico.   The



            barge and tug were  operated by Ocean Line of  North Florida,



            Inc.  ("Ocean Line"), a  now defunct  shipping company.   The



            principal defendants, from whom plaintiffs seek recovery, are



            the  issuers  of an  open marine  cargo insurance  policy for



            Ocean Line.  The case was tried in the United States District



            Court for the  District of  Puerto Rico.   The court  entered



            judgment  for  the  defendant insurers  and  plaintiffs  have



            appealed.



                      We  affirm the  judgment below.   We  are satisfied



            that the findings  of the district court, as set forth in its



            Opinion  and Order, are  not clearly erroneous,  and that its



            conclusions  and   legal  analysis  therein   are  materially



            correct.  This being so  we see no need to go  over in detail



            the  same  ground  comprehensively covered  in  the  district



            court's  own opinion.  Instead, we limit ourselves to a brief



            discussion of the controlling issues.



                      In  their direct action  on the  policy, plaintiffs



            have sought to establish  that    notwithstanding the absence



            of  affirmative requests  from shippers  that their  goods be


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insured       the   policy's  coverage   was  "automatically"



            available to all  shippers.  In support of  this proposition,



            plaintiffs offered evidence at trial  of a "custom and usage"



            in the Puerto Rico-United States trade for ocean carriers  to



            provide insurance automatically up to certain limits, without



            a  shipper having  to affirmatively  request coverage  at the



            time of  entrusting his  goods to  the carrier.   Defendants,



            however, sharply disputed  this contention, and the  district



            court  found, on  the conflicting  proofs, that there  was no



            such custom  and  usage.   We  see  no clear  error  in  that



            finding.   The  court also  expressed  doubts as  to  whether



            custom and  usage evidence,  such as  it was,  could override



            Ocean Line's announced policies on the matter.



                      Plaintiffs argue that, apart from custom and usage,



            coverage is manifest from the language of the  policy itself.



            They  disparage as immaterial  Ocean Line's published tariffs



            and its  bills of  lading, which contained  specific language



            requiring shippers to first  request insurance if they wished



            to  obtain  it.     Instead,  plaintiffs  urge  us   to  rely



            exclusively  on the insurance  policy itself.   But, like the



            district court, we find little support in the policy language



            for plaintiffs'  position.  The definition of  assured in the



            insurance  policy   includes   Ocean  Line   and   associated



            companies,  "and/or for  whom  they received  instructions to



            insure."    Express  shipper's  instructions  to  insure  are


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lacking here,1 and  we see  no reliable basis  from which  to



            infer that  such instructions  were given.   The tariffs  and



            bills  of lading  specifically call  for shippers  to provide



            explicit  instructions if  they wish insurance.   It  is true



            that  one section of the tariffs indicates that "the rates in



            this tariff include insurance," and the parties seem to agree



            that a  shipper would  have been  entitled to free  insurance



            (i.e. with  Ocean  Line to  pay  the premium),  but  disagree



            whether the free insurance was "automatic" or had first to be



            requested, and the  cargo value  stated, as  the tariffs  and



            bills of lading provide.  Nothing in the policy itself states



            that all  shipments are to  be automatically insured;  to the



            contrary, the  policy definition of assureds   suggests quite



            the  opposite,  as does  the  evidence  of Ocean  Line's  own



            practices and methods for paying premiums prior to  the loss.



            As  we say,  we find  no  indication of  clear  error in  the



            district  court's  findings  and  factual  conclusions, which



            appear well-supported on this record.  We can only agree with



            the court that plaintiffs  have failed to establish  that the


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            1.  Transcaribe tendered  pro forma  bills of lading  late in

            the district  court proceedings which it  says manifested the

            shipper's  requests  for  insurance.    The  district  court,

            expressing  doubts as  to these  documents' authenticity  and

            credibility, found this late-filed evidence  was insufficient

            to establish that proper requests were made.  Infra.
                                                          _____



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cargo,  for the loss of which  they are claiming, was in fact



            insured under the policy in question.2



                      As  noted in  Note 1,  there was  a dispute  at the



            trial  concerning the weight to be given to certain pro forma



            bills of lading submitted as evidence very late in the day by



            Transcaribe.   Transcaribe argued  that these  indicated that



            coverage  had,   in  fact,   been  requested,   although  the



            documentary evidence was far from  being clear or uniform  in



            this respect.  The district court's disposition of this issue



            is  explained in its Opinion and Order.  The district court's



            evaluation  and handling  of  this evidence  was not  clearly



            erroneous  and was  within its  reasonable discretion  in the



            circumstances of this case.



                      Affirmed.
                      ________


____________________



            2.  The plaintiffs call  our attention to  several translated

            Puerto  Rico cases  and  to one  Second  Circuit case,  Estee
                                                                    _____

            Lauder  International,  Inc.  v. World  Wide  Marine Service,
            ____________________________     ____________________________

            Inc., 923  F.2d  238 (2d  Cir.  1991).   We  agree  with  the
            ____

            defendant insurers that these  cases are either irrelevant to

            the   contested  issues   in   this  case   or  are   readily

            distinguishable and thus are not dispositive.



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