Price v. Zim Israel Navigation Co.

616 F.2d 422
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 3, 1980
DocketNo. 78-1604
StatusPublished
Cited by12 cases

This text of 616 F.2d 422 (Price v. Zim Israel Navigation Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Price v. Zim Israel Navigation Co., 616 F.2d 422 (9th Cir. 1980).

Opinion

SNEED, Circuit Judge:

In a world in which dwell injured longshoremen, their stevedore employers, shipowners, and maritime insurance companies, this case between a shipowner and insurance company arises. The shipowner won below, the insurance company brought this appeal, and we affirm.

The district court held appellant, Tokio Marine & Fire Insurance Company (Tokio), liable to appellee, Zim Israel Navigation Company (Zim), under an insurance policy issued by Tokio which named Zim as an additional insured. Suit was brought after Tokio refused to assume responsibility for a suit brought against Zim by a longshoreman injured while performing stevedoring operations aboard a Zim vessel. Tokio contended that it had no contractual obligation to Zim under the insurance policy and that such a contractual obligation would in any event be void under section 18 of the Longshoremen’s and Harbor Workers’ Compensation Act Amendments of 1972, 33 U.S.C. § 905(b) (1976). The district court rejected both contentions and ordered Tokio to reimburse Zim, and Tokio has appealed. We agree with the district court.

I.

Zim, an Israeli corporation which transports cargo between ports throughout the world by means of cargo vessels, entered [425]*425into a contract on April 4, 1972 with International Transportation Service (ITS), a stevedoring company. Paragraph 9.4 of the contract provided that Zim would “defend, indemnify and hold harmless” ITS against any claims, losses, or expenses arising from Zim’s negligence or from unseaworthiness or substandard conditions of Zim’s vessels or equipment.1 Paragraph 9.6 provided that Zim would be named as a coinsured under ITS’s liability insurance policies.2

On May 11, 1973, Tokio, a Japanese corporation with its principal place of business in California, issued to ITS a comprehensive liability insurance policy, effective through May 1976. Six months after the issuance of this policy, on November 16, 1973, an endorsement was added at the request of ITS including Zim “as an additional insured as respects operations performed for Zim . .” The endorsement was typewritten on a printed form providing that all other terms and conditions remained unchanged.

No additional premium was paid for this endorsement at the time it was added to the policy. In 1974, however, Zim and ITS agreed that paragraph 9.6 of the stevedoring contract, the provision naming Zim as a coinsured, should be eliminated because ITS’s insurance premium would be substantially increased as a result of the coverage extended to Zim. In a subsequent stevedoring contract executed by Zim and ITS on August 1, 1974, paragraph 9.6 was omitted. Paragraph 9.4, the indemnification provision, was retained. The November 16, 1973 endorsement was not explicitly can-celled.

A longshoreman, Tyrone Price, was injured while working for ITS aboard a Zim vessel in January 1975. A month later, Price filed suit against Zim, alleging negligence and strict liability in tort. In September 1975, Zim tendered the defense of the action to Tokio. Although a year earlier Tokio had accepted the defense of a personal injury suit brought by a longshoreman injured while working on a Zim vessel. Tokio refused to defend the Price suit on the grounds that the suit was not within the policy’s coverage and that in any event the Zim endorsement had been cancelled. Zim then brought this action against Tokio. In due course the Price suit resulted in a settlement which all parties accept as fair. On the basis of stipulated facts, the district court entered judgment directing Tokio to reimburse Zim for the amount of the Price settlement and for its legal fees and costs. Tokio appeals from that judgment.

Two questions are before us on this appeal: Was Tokio obligated under the insurance policy to assume responsibility for the Price suit?3 And was the Zim endorsement void under 33 U.S.C. § 905(b) (1976)? We answer the first yes and the second no.

II.

Tokio maintains that Price’s suit against Zim was not within the coverage of the [426]*426insurance policy. The Zim endorsement extended the policy’s coverage to Zim “as respects operations performed for Zim .,” presumably by ITS. Since Price was an ITS employee and was injured aboard a Zim vessel while ITS was engaged in stevedoring operations for Zim, the endorsement appears to provide the coverage upon which Zim insists. However, Tokio argues that the endorsement was applicable only if ITS operations were the legal source, not merely the factual context, of Zim’s liability. Thus, Zim would be insured against a suit alleging that Zim was vicariously liable for the acts of ITS. However, where Zim was directly liable for an injury, as in this case, the endorsement would not apply; the fact that the injury occurred during ITS operations would merely be coincidental.

Tokio insists that this interpretation of the endorsement is necessary to avoid rendering meaningless paragraph 9.4 of the stevedoring contract, by which Zim agreed to indemnify and hold harmless ITS against all claims arising from Zim’s negligence or from the unseaworthiness of Zim’s vessels or equipment. We disagree. This paragraph has its purposive roots in prior law. Before the enactment of 33 U.S.C. § 905(b) in 1972, so-called Ryan triangle suits,4 in which injured longshoremen sued shipowners who in turn sued the longshoremen’s employers for contribution or indemnity, were quite common. See Robertson, Shipowner Negligence and Stevedore Immunities under the 1972 Amendments to the Longshoremen’s Act, 28 Mercer L.Rev. 515, 537 (1977). Paragraph 9.4 was addressed to this situation. It protected ITS from such third party suits by Zim. In return, Zim was protected by paragraph 9.6, which provided that Zim would be covered by ITS’s liability insurance. The two paragraphs thus established a mutually satisfactory way of disposing of claims by injured longshoremen. By providing for a single insurer, paragraph 9.6 reduced the possibility of litigation regarding the application of paragraph 9.4. By contrast, it seems improbable that the parties would have intended that ITS obtain insurance which would not cover the common Ryan triangle suits but would be applicable only in less likely instances of acts by ITS for which Zim was vicariously liable.

Moreover, Tokio’s construction, although plausible, is not the most natural reading of the language of the endorsement. The most that Tokio has shown is that the endorsement is ambiguous. Under standard principles for- construing insurance policies, we must resolve ambiguities in favor of Zim, the insured. Gray v. Zurich Insurance Co., 65 Cal.2d 263, 269, 54 Cal. Rptr. 104, 419 P.2d 168 (1966); 13 Appleman, Insurance Law and Practice § 7386 (1976).

Tokio also contends that its contract is inapplicable to the Price suit because of an exclusion which provided that “[t]his insurance does not apply to bodily injury . . . arising out of the ownership, maintenance, operation, use, loading or unloading of any watercraft owned or operated by . any insured, . . .

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