Summary
In Blair v. Suard Barge Services, Inc., 2004 WL 325428 (E.D.La.2004), where the watercraft exclusion was applied, the barges were many feet from the shore.
Summary of this case from Henry v. SugarsOpinion
CIVIL ACTION NO. 03-909, SECTION "C" (4)
February 18, 2004
ORDER AND REASONS
Before the Court is Defendant's, Federal Insurance Company (hereinafter referred to as "Federal"), Motion for Summary Judgment on Coverage, which was set for hearing on January 7, 2004. (Rec. Doc. 22). Federal seeks the Court to rule that the insurance policy it issued Defendant, Suard Barge Service, Inc. (hereinafter referred to as "Suard"), does not provide coverage to Plaintiff's' claims against Suard due to the policy's watercraft exception. Suard and its Protection and Indemnity Insurer, Defendant, XL Specialty Risks Insurance Company (hereinafter referred to as "XL"), do not oppose Federal's Motion. Plaintiff's oppose Federal's Motion arguing, alternatively, that the policy's watercraft exception is inapplicable or an endorsement to the watercraft exception is applicable. (Rec. Doc. 30). Federal has filed a response to Plaintiff's' opposition. (Rec. Doc. 33).
After a thorough review of the law, the record, the Motion, and the memoranda filed in support of the Motion and in opposition thereto, Federal's Motion for Summary Judgment on Coverage is GRANTED.
BACKGROUND
This insurance coverage dispute arises out of the death of Dwayne Michael Blair's (hereinafter referred to as "the Decedent"). For purposes of this Motion, the facts have not been disputed. On August 31, 2002, the Decedent was operating a mud boat in the Company Canal, in Lafourche Parish, a geographic and political subdivision of the State of Louisiana. At about 9:35 p.m., the mud boat struck two moored barges, Suard Barge 24 and Suard Barge 76. As a result, the decedent suffered critical injuries and died soon thereafter. The boat itself was also severely damaged.
At the time of the accident, Suard was provided general marine liability insurance coverage by Federal and protection and indemnity coverage by XL.
On April 1, 2003, Plaintiff's, Dutie L. Blair and Charles Wesley Blair, the Decedent's parents, brought suit to recover for their injuries and the injuries sustained by their son against Suard; Federal; XL; Premier Services, Inc. (hereinafter referred to as "Premier"); as well as three other entities that have not yet answered the complaint: Diamond Boats, Inc.; Setton Barge Rental, Inc.; and Petro Quest Exploration, Inc. Among other theories of recovery, Plaintiff's claim that the barges were not properly lit in violation of certain federal regulations and that Defendants failed to warn the Decedent of the moored vessels' positions. Plaintiff's, pursuant to Rule 9(h) of the Federal Rules of Civil Procedure, have designated their action as one in admiralty.
On December 5, 2003, Federal moved the Court for Summary Judgment arguing that the policy they issued Suard does not provide coverage for Suard's liability arising from the Decedent's death.
STANDARD OF REVIEW
A district court can grant a motion for summary judgment only when the "`pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). When considering a motion for summary judgment, the district court "will review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). The court must find "[a] factual dispute . . . [to be] `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party . . . [and a] fact . . . [to be] `material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248(1986)).
"If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non — moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial." Engstrom v. First Nat'l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (citing Celotex, 477 U.S. at 322-24, and Fed.R.Civ.P. 56(e)). The mere argued existence of a factual dispute will not defeat an otherwise properly supported motion. See Anderson, 477 U.S. at 248. "If the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Id. at 249-50 (citations omitted).
LAW AND ANALYSIS
The question presented to the Court is whether Plaintiff's have created a genuine issue of material fact as to whether the policy issued by Federal to Suard requires Federal to indemnify Suard for any liability Suard may incur as a result of the Decedent's death. The answer to this question depends largely on the Court's interpretation of the general marine liability policy provided by Federal to Suard.
For quite some time, the courts have recognized that marine insurance contracts are maritime contracts, subject to the admiralty jurisdiction of the United States. Ins. Co. v. Dunham, 78 U.S. 1 (1870); Delovio v. Boit, 7 Fed. Cas. 418 (D. Mass. 1815) (Case No. 3,776) (("My judgment is, that policies of insurance are within (though not exclusively within) the admiralty and maritime jurisdiction of the United States.")). When suit is brought on a maritime contract, federal statutes and the general maritime law generally govern the theories of recovery and defenses asserted by the parties. Miles v. Apex Marine Corp., 489 U.S. 19, 36 (1990) ("[m]aritime tort law is now dominated by federal statute."). However, in some circumstances, state law may be applied to the resolution of issues within the admiralty jurisdiction. Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986). When state law does not "contravene[ ] the essential purpose expressed by an act of Congress, or work[ ] material prejudice to the characteristic features of the general maritime law, or interfere[ ] with the proper harmony and uniformity of that law in its international and interstate relations", it may be applied to the resolution of issues within the admiralty jurisdiction. Am. Dredging Co. v. Miller, 510 U.S. 443 (1994); S. Pac. Co. v. Jensen, 244 U.S. 205 (1917).
In the area of maritime insurance contracts, Congress and the federal courts have refused to fashion laws governing the interpretation of maritime contracts. Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310 (1955). As such, state law governs the interpretation of maritime contracts. Wilburn Boat Co., 348 U.S. at 320-321; Truehart v. Blandon, 884 F.2d 223 (5th Cir. 1989); Employers Ins. of Wausau v. Trotter Towing Corp., 834 F.2d 1206 (5th Cir. 1988); Elevating Boats, Inc. v. Gulf Coast Marine, Inc., 766 F.2d 195, 198-99 (5th Cir. 1985); Cont'l Oil Co. v. Bonanza Corp., 677 F.2d 455, 462 (5th Cir. 1983); D L Marine Transp., Inc. v. Suard Barge Serv., Inc., 2003 WL 22284547 (E.D. La. Sep. 30, 2003). In the present case, neither party disputes that Louisiana law applies to the interpretation of Suard's policy issued by Federal. The Court agrees. Truehart, 884 F.2d at 226.
Under Louisiana law, the interpretation of an insurance contract is a question of law for the court. Id. Interpretation of a contract is the determination of the common intent of the parties. LA. CIV. CODE ANN. art. 2045 (West 1987). When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. LA. CIV. CODE ANN. art. 2046 (West 1987).
Federal issued a policy of Marine General Liability Insurance, Policy No. 7318258, to Suard. (Rec. Doc. 22, exhibit 3). Section I of the policy provides the general scope of the policy's coverage. Id. It provides that "[t]he company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of . . . [personal injury or property damage] to which this insurance applies, caused by an occurrence . . ." Id. Under the policy, occurrence means an accident, including continuous or repeated exposure in conditions, which results in bodily injury neither expected nor intended from the standpoint of the insured. Id.
Section I also excludes from coverage incidents that normally would fall within the general scope of the policy's coverage. Id. It provides that "[t]he insurance afforded [by this policy] is subject to the following exclusions . . . (E) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of: (1) any water craft owned or operated by or rented or loaned to any insured, or (2) any other water craft operated by any person in the course of his employment by any insured." (Rec. Doc. 22, exhibit 3). Immediately thereafter, Section I provides that "this exclusion does not apply to water craft while ashore on premises owned by, rented to or controlled by the named insured." Id.
This exclusion is commonly included in general marine liability policies and is referred to as the watercraft exclusion.
Endorsement VIII of the policy provides that the watercraft exclusion "does not apply to any water craft provided such water craft is neither owned by the named insured nor being used to carry person or property for a charge." Id. It further provides that "[w]here the insured is, irrespective of this coverage, covered or protected against any loss or claim which would otherwise have been paid by [Federal] under this endorsement, there shall be no contribution or participation by this company on the basis of excess, contributing, deficiency, concurrent, or double insurance or otherwise." Id.
Both parties agree that the incident in question falls within the general scope of the policy. Federal argues that the incident falls within the watercraft exclusion and is, thus, not covered by the policy. To buttress this argument, they offer a copy of Plaintiff's' complaint (Rec. Doc. 22, exhibit 1), in which Plaintiff alleges the facts developed in the Background section above, and a copy of a accident report written by Max Dupre, Jr., an agent of the Louisiana Department of Wildlife Fisheries, detailing the Decedent's accident, which also essentially mirrors the facts developed in the Background section above (Rec. Doc. 22, exhibit 2). Of additional importance, in that report, Mr. Dupre states that, at the time of the incident, Barge 76 was 93 feet from the bank and Barge 24 was 123 feet from the bank.
Federal has met the initial burden of showing that there is no genuine issue of material fact. The burden now shifts to Plaintiff's to produce evidence or designate specific facts showing the existence of a genuine issue for trial.
Plaintiff's argue that the watercraft exclusion does not apply for the following reasons: (1) the accident was caused by an unreasonably dangerous mooring device; (2) the Suard barges were moored in place and were not being owned, operated, used, loaded, or unloaded; (3) the Suard barges were ashore on land controlled by Suard, and (4) Barge 76 was not owned by Suard nor was it used to carry person or property for a charge.
To support Plaintiff's' first argument, they offer Terra Res., Inc. v. Lake Charles Dredging Towing Inc., 695 F.2d 828 (5th Cir. 1983). In Terra Res., Inc., three barges, two owned by Parker Brothers and one by Lake Charles Dredging Towing, were moored to a defective anchoring device, owned by Parker Brothers, at the bottom of a bay in Louisiana. Id. at 830. After a heavy storm set in atop the bay, waves and gale — force winds drove the barges into Terra Resources' oil production facility causing substantial property damage to both the barges and the facility. Id.
Terra resources filed suit against both Lake Charles Dredging and Fidelity Casualty, its P I insurer. Id. Parker Brothers was added later. Id. Both Parker Brothers and Lake Charles Dredging informed Aetna, their general comprehensive liability insurer, of the claim. Terra Res., Inc., 695 F.2d at 830. Aetna denied liability pointing to the watercraft exclusion of the insurance policies. Id. As a result, the three defendants brought a third party action against Aetna. Id. Soon thereafter, Terra settled its claims against the three defendants for $140,000. Id. The third party action went to trial. Id. A federal district judge sitting in the Western District of Louisiana found that Aetna was liable to the third party plaintiffs because the watercraft exception does not bar recovery when the insured's liability to the original plaintiff is premised on a theory of recovery not predicated solely on the insured's ownership, use, operation, loading, or unloading of the vessel, in this case, the theory being that the defective anchoring system partly caused the accident. Terra Res., Inc., 695 F.2d at 831. Aetna appealed. Id.
In affirming the district court, the United States Fifth Circuit Court of Appeals agreed that, in cases where the insured's liability is premised solely on its ownership and use of the barges, the watercraft exception normally bars recovery under a general marine liability policy. Id. However, because Parker Brothers actually owned and used a defective anchoring device upon which Parker Brothers liability was premised, the watercraft exception did not bar recovery against Aetna. Id. at 831-33.
The present case, however, is distinguishable. Even if Plaintiff's offered any evidence to suggest that the mooring device employed by Suard was defective and that Suard owned the mooring device, they would still not be able to create a genuine issue of material fact on whether the accident was caused by an unreasonably dangerous mooring device because the device, even assuming the allegations contained in Plaintiff's' opposition are true, did not cause the incident. The barges did not drift into the decedent's boat as the barges in Terra Res., Inc. drifted into the oil refinery thereby causing the accident. The barges remained stationary. The mere fact that the barges were moored at the time of the incident did not sway the Terra Res., Inc. court to find that the watercraft exclusion was inapplicable. The Terra Res., Inc. court found the water craft exclusion inapplicable because an independent theory of recovery, that is, Lake Charles Dredging's ownership of a defective mooring device and/or negligent failure to replace or fix the mooring device caused Terra's injuries. In this case, the mooring device had nothing to do with the accident. In Plaintiff's' complaint, they allege that the accident was caused by the negligent failure of Suard to provide proper lighting aboard the barges. Providing proper lighting aboard the barges is inextricably intertwined with the use or operation of the barges and cannot be construed as an independent source of liability.
Because Plaintiff's have not offered such an independent theory of recovery or facts to sustain such a theory until trial, Plaintiff's first assertion that summary judgment is improper because the accident was caused by an unreasonably dangerous mooring device is without merit.
Plaintiffs' second argument is likewise without merit. Plaintiff's argue that because the Suard barges were moored in place, they were not being owned, operated, used, loaded, or unloaded. Moored vessels are technically in use and are technically being operated. Terra Res., Inc., 695 F.2d at 831. The Terra Res., Inc. court certainly recognized this, when it stated that, except for an independent theory of recovery not encompassed by the watercraft exception, the court would agree that water craft exclusion bars recovery where the vessel is moored, as it is in use. Id A moored vessel does riot cease being used or operated because it is anchored to the bottom of a body of water. Id.
Although general marine liability policies' watercraft exclusions typically refer to ownership, operation, use, or loading and unloading, the policy at issue here does not employ the word `use.' (Rec. Doc. 22, exhibit 3).
It is true that, in Terra Res., Inc., Lake Charles Dredging owned the barge. However, the court found that the water craft exception would have applied, in the absence of the independent theory of recovery not encompassed by the water craft exception, either because Lake Charles Dredging owned the barge or because the barge was in use by them at the time of the incident. Terra Res., Inc., 695 F.2d at 831.
Plaintiff's' third argument opposing summary judgment is also without merit. Plaintiff's has offered no evidence to suggest that the barges were any closer to the shore than indicated by Agent Dupre. Agent Dupre stated that, at the time of the incident, Barge 76 was 93 feet from the bank and Barge 24 was 123 feet from the bank. Instead, Plaintiff's suggest that the barges' positions at those distances from the shore qualify as `ashore' within the meaning of the policy. Plaintiff's point to H. C. Price Co. v. Compass Ins. Co., 483 F. Supp. 171 (N.D. Tex. 1980), for support.
In H. C. Price Co., an insured brought a declaratory action against his insurer seeking indemnification for a sum of money the insured paid to the widow and unborn child of Neil Hebert for his wrongful death. Id. at 173. The insured was a construction company, which, at the time of Neil Hebert's death was performing a contract to construct and build a pipeline on both sides of and across a Texas bayou. Id. As part of the agreement, the insured had procured the contractual right to conduct operations on the shores of the bayou. Id. During the construction project, the insured used a flexiboat, the purpose of which was to transport equipment back and forth between the bayou's two sides. Id. The flexiboat was tied to one side of the bayou by a cable, which was attached to the a winch on the flexiboat. H. C. Price Co., 483 F. Supp. at 173. Shortly before the accident and at the time of the accident, the flexiboat was propped up on a ramp on the far side of the bayou. Id. As a result, the cable was fully extended across the width of the bayou. Id. Neil Hebert was piloting a motorboat in the bayou when the boat hit the cable, and he was thrown from the boat to his death. Id. at 172.
Neil Hebert's widow and child filed a wrongful death action against the insured claiming that the insured's negligent failure to warn Mr. Hebert of the presence of the cable caused Mr. Hebert's death. Id. After investigating the incident, the insurer agreed to provide a defense to the insured reserving its rights to contest its liability to the insured under the contract. H. C. Price Co., 483 F. Supp. at 173. The insured refused to agree to the reservation of rights and, after hiring his own attorney to defend the suit, settled with Mr. Hebert's widow and child. Id. Thereafter, the insured filed a declaratory action to recover against the insurer. Id.
Before trial of the matter, the parties both filed motions for summary judgment. Id. at 172. The insurer argued that the water craft exception of the general marine liability policy applied to bar recovery. Id. The insured argued that, because the boat was propped up against a ramp on the far side of the bayou, the qualification in the water craft exclusion providing that "this exclusion does not apply to watercraft while ashore on premises owned by, rented to or controlled by the named insured" applied and allowed recovery. H. C. Price Co., 483 F. Supp. at 173-75. The district court, sitting in the Northern District of Texas, granted the insured's motion for summary judgment agreeing that a boat, while propped up on a ramp on the shore, is technically `ashore' under the wording of the watercraft exception if though the bulk of the craft is in the water. Id. at 174-75.
Here, Plaintiff's have offered evidence to show that Federal controlled the shore, which Federal has not rebutted. However, Plaintiff's have failed to show that Barge 24 and Barge 76 were ashore. The undisputed testimony of Agent Dupre shows that, at the time of the incident, Barge 76 was 93 feet from the bank and Barge 24 was 123 feet from the bank. The Court disagrees with Plaintiff's' construction of the word `ashore' to encompass this situation and refuses to construe the word `ashore' to cover vessels so far from the shore, regardless of where they are moored. Therefore, Plaintiffs' third argument opposing summary judgment must fail.
Last, Plaintiff's argue that their claim falls within the wording of Endorsement VIII, a contractual exclusion to the policy's water craft exclusion. Endorsement VIII applies to provide coverage notwithstanding the watercraft exclusion when the watercraft is not owned by the named insured and is not used to carry person or property for a charge. Plaintiff's have submitted an United States Coast Guard Certificate of Inspection which indicates that Barge 76 is owned by Premier Services, Inc. However, that Certificate of Inspection expired on May 11, 2001. Nevertheless, Federal does not contest that Suard does not own Barge 76. Instead, Federal argues that the barge was "being used to carry persons or property for a charge" across the water as that phrase is understood under the contract and that, as a bareboat charterer, Suard should be considered the owner.
The undisputed facts show that, at the time of the accident, Barge 76 was moored and was not, at that precise moment, carrying persons or property for a charge. The undisputed facts also show that Barge 76 was almost always used to carry persons or property for a charge. In fact, Federal has introduced Suard's answer to interrogatory no. 14, in which Suard admits that Barge 76 was just returned to Suard on the day of the accident by Petro Quest, a charterer of the Barge 76.
The question, therefore, becomes whether a vessel, which is almost always used to carry persons or property for a charge, but which is not at the precise moment of the accident used in that manner, is "being used to carry persons or property for a charge". The determination of this question necessarily involves the interpretation of the word "being". Interpretation of a contract is the determination of the common intent of the parties. LA. CIV. CODE ANN, art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. LA. CIV. CODE ANN. art. 2046.
"Being", as the present tense participle of the verb "be", does not have its own definition. WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 136 (9th ed. 1984). Instead, it is incorporated within the definition of the word "be" by the designation and qualification that it is the present participle of the word "be". Id. "Be" is defined as "to equal in meaning: have the same connotation as"; "to have identity with"; "to construe the same class as"; "to have a specified qualification or characterization"; "to belong to a class of"; "to have an objective existence: have reality or actuality: LIVE"; "to have, maintain, or occupy a place, situation, or position"; "to remain unmolested, undisturbed, or uninterrupted"; and "to take place: OCCUR". Id. While these definitions certainly unambiguously describe the word "be", the qualification of "being" as the present participle of the word "be" presents ambiguity, especially in this circumstance.
For instance, if one were to say, "The house is being built," he would probably define the time period to which "being" applies as all the time from the initiation of the construction project till the time when the house is finally built, including within that period of time those times when no one is actually doing any work on the house, such as nights and, perhaps, Sundays.
However, if one were to say, instead, "The apartment is being rented to Bill," knowing that two days after Bill's lease expires the apartment will be rented to Tim, no one would refer to the apartment during the two — day period of time in between the durations of the two leases as "being rented."
As such, the word "being" is not clear and explicit. A doubtful provision [that is, one that is not clear and explicit] must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties. LA. CIV. CODE ANN. art. 2053.
While it is true that ambiguities in provisions of contracts are to be construed against the party that provided the contract, that method of resolving ambiguous provisions may not be availed of until the Court finds that the ambiguity is not otherwise resolvable. LA. CIV. CODE ANN. art. 2053 (West 1987); In re Liljeberg Enters., Inc., 79 F.3d 410 (5th Cir. 2002).
Although courts may refer to marine insurance contracts generically, there are many different diverse types. Most vessel owners, or bareboat or demise charterers, obtain several different kinds of marine insurance including, but, depending on the exact operations the vessel performs, probably not limited to a Hull policy, a Protection and Indemnity policy (P I), and a marine general liability policy (hereinafter referred to as "MGL") or a comprehensive general liability policy (hereinafter referred to as "CGL").
A Hull policy typically provides coverage to the owner of a vessel for damage that occurs to the vessel which is caused by certain enumerated causes, such as barratry. Nat'l Union Fire Ins. Co. of Pittsburgh v. Republic of China, 254 F.2d 177 (4th Cir. 1958). Hull policies, like P I policies, do not cover general areas of liability subject to some exclusions and endorsements. Id. Rather, they cover only those risks specifically enumerated in the policies. Id. Nevertheless, the hull policy also will exclude coverage for damage that occurs to the vessel which, although arguably caused by one of the enumerated and insured against causes, is also caused by certain enumerated exclusions, such as the war risks exclusion. U.S. Fire Ins. Co. v. Cavanaugh, 732 F.2d 832 (11th Cir. 1984). Of course, like any policy of insurance, the underwriter may require certain express warranties from the assured, including warranting that a vessel will only be used in a certain geographic area. Wilburn Boat Co., 348 U.S. at 321.
Historically, P I policies are issued to protect owners of a vessel from risks not encompassed by the Hull policy. Quigg Brothers-Schermer, Inc. v. Commercial Union Ins. Co., 223 F.3d 997, 1000 (9th Cir. 2000), quoting Ins. Co. of America v. Board of Comm'rs of the Port of New Orleans, 733 F.2d 1161, 1165 (5th Cir. 1984), quoting Seaboard Shipping Corp. v. Jocharanne Tugboat Corp., 461 F.2d 500 (2d Cir. 1972). Unlike, the Hull policy, the P I policy generally provides liability insurance for tortious liability the owner of the vessel incurs as a consequence of his ownership of the vessel. Lanasse v. Travelers Ins. Co., 450 F.2d 580 (5th Cir. 1971); 5. 5. Underwriting Ass'n v. Landry, 281 F.2d 482 (1st Cir. 1960). The P I policy indemnifies the insured for specific enumerated risks arising out of the legal liability of the insured as the owner of a vessel scheduled on the policy. WILLIAM E. O'NEIL, Insuring Contractual Indemnity Agreements Under CGL, MGL, and P I Policies, 21 TUL. MAR. L.J. 359, 373 (Summer 1997), quoting ROBERT T. LEMON, II, The Lanasse Rule and the Additional Assured's Dilemma Under American — Form P I Policies, 21 J. MAR. L. COMM. 503, 503 (Oct. 1990). P I policies do not obligate the underwriter to provide a defense to the assured, only to compensate him for loss. They typically cover liability arising from injuries to Jones Act seaman, longshoremen, or passengers.
CGI or MGI policies typically cover the risks not included by either the P I policy or the Hull policy. They provide insurance for tort liabilities. JOHN N. BOLUS, Contractual Liability Insurance Provisions: An Overview, Reference Handbook on the Comprehensive General Liability Policy: Coverage Provisions, Exclusions, and Other Litigation Issues (Peter J. Neeson ed., 1995). The broad grant of coverage in the CGL and MGL policies obligates the insurer to pay sums that the insured becomes legally obligated to pay as damages because of bodily injury or property damage. WILLIAM E. O'NEIL, Insuring Contractual Indemnity Agreements Under CGL, MGL, and P I Policies, 21 TUL. MAR. L.J. 359, 373 (Summer 1997). Unlike the P I policy, the CGL and MGL policies expressly provide that the insurer has a duty to defend any suit against the insured seeking damages. Id. Most importantly, CGL and MGL policies typically contain a watercraft exclusion with the intent being not to afford coverage and defense for maritime exposures presumably the subject of P I policies or hull policies. Id.
As one can see, as is the custom in the marine insurance industry, P I policies typically cover the liability Suard may incur for the damages Plaintiff's have suffered. The actual language of the MGL policy incorporates this understanding, albeit, ambiguously, in the watercraft exclusion. Another part of the policy, Endorsement VIII, recognizes this custom as well when it provides that, even when the water craft exclusion and Endorsement VIII are both applicable and the policy would provide coverage, the MGL policy will not pay anything when a P I policy covers the loss. (Rec. Doc. 22, exhibit 3).
In this case, Suard procured P I insurance from XL. Neither XL nor Suard, the parties with a true interest in making sure that Federal remains in this lawsuit, have opposed this motion for summary judgment. This evidences that the parties do not consider Federal to be liable for an incident occurring in this fashion.
The Court finds that the parties did not intend the general marine liability policy to provide coverage in this instance because Barge 76 was "being used to carry persons or property for a charge", as that phrase is understood under the policy. To hold otherwise would be to allow a barge to literally float in and out of insurance coverage. At least with respect to one maritime act, Congress and the United States Supreme Court has expressed reservations about such geographic or temporal restrictions on a law's application. Nacirema Operating Co., Inc., v. Johnson, 396 U.S. 212 (1969); Calbeck v. Travelers Ins. Co., 370 U.S. 114 (1962); Davis v. Dept. of Labor Indus, of Wash., 317 U.S. 249 (1942); Grant Smith-Porter Ship Co. v. Rhode, 257 U.S. 469 (1922); S. Pac. Co., 244 U.S. 205; see also GAINSBURG FALLON, The Twilight's Last Gleaming, 37 TUL. L. REV. 79 (1963). For instance, a longshoreman is still a longshoreman even if he is not actually doing longshoreman work at the time. Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249 (1977). So to was Barge 76 still "being used to carry persons or property for a charge", even when it was moored in between jobs.
Because the Court finds that Barge 76 was "being used to carry persons or property for a charge", it is unnecessary to address whether Suard could be considered an owner of the Suard barge 76 or whether the other insurance clause of Endorsement VIII applies.
CONCLUSION
The Marine General Liability policy issued by Federal to Suard was issued to cover a great number of risks. Nevertheless, the risk encompassed by the accident which occurred here is not one of them. The undisputed facts of this case clearly show that the watercraft exclusion in the policy Federal issued Suard bars Plaintiff's' recovery against Federal. Federal is entitled to judgment as a matter of law.
Therefore, Federal's Motion for Summary Judgment on Coverage is GRANTED.