Litigating Marine Insurance Warranties: Once More Into the Breach

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1 Litigating Marine Insurance Warranties Litigating Marine Insurance Warranties: Once More Into the Breach Steven E. Goldman I. Introduction The 19th Century transcendental philosopher Ralph Waldo Emerson is commonly credited with the familiar quotation about an undue regard for consistency being the hobgoblin of little minds. To be precise, however, the complete quotation actually attributes this lamentable requirement for consistency to several particular and distinct examples of humanity, described by the philosopher as little statesmen and philosophers and divines. 1 Perhaps it is significant that Emerson saw fit to omit from this roster members of the legal profession, judges and attorneys, along with marine underwriters and those who seek to purchase the valuable and much sought after protections afforded by the policies of marine insurance that those underwriters offer for sale. Those people, who live in the world of commercial reality and who from time to time find themselves having to resort to courts in order to resolve the various disputes that arise from these particular types of agreements, must unavoidably be quite concerned with the rules that will be applied to resolve these legal disputes. They must regrettably, but perhaps understandably, take quite a different view of the need for and the value of having a consistent body of rules and laws available to assist them in their day to day labors. It is frequently thought by these people to be highly desir- 1 Bartlett s Familiar Quotations 455 (17th ed. 2002) (from Emerson s essay Self-Reliance (1841). 111

2 FDCC Quarterly/Winter 2007 Steven E. Goldman is a partner in the law firm of Goldman & Hellman and is a member of the New York and Florida Bars. His practice is devoted to the representation of marine insurers in coverage disputes with insureds, and he holds degrees from Harvard University and Tulane Law School. able, a very good thing in fact, that the rules that will be applied to resolve legal disputes be consistent, that the laws be clear and known to all. Frequently it is thought to be highly desirable, a very good thing in fact, that attorneys be able to respond authoritatively when they are consulted with regard to a prospective legal controversy. As for marine insurers, marine underwriters and the claims departments that serve them seek to enjoy as predictable and as rational an environment as possible. In this regard, marine insurers are no different from any other business or commercial venture. In fact, it is manifest that such utterly basic things as the premiums set by the underwriters and the coverage decisions made by claims managers hinge directly upon the ability of such persons to make informed predictions about what laws and rules of decision are going to apply in particular situations. Attorneys are rightly proud of being able to provide their clients with sound legal advice based on such quotidian things as legal authorities and precedents. Indeed, there is a term of opprobrium commonly held to apply to a situation that exists when there is no consistency, where there are no reliable authorities or precedents, when things are random and when rational advice is a mirage. Such a situation, where consistency is lacking, is commonly said to be arbitrary and capricious. Presumably, therefore, one can foresee and predict the existence of a broad consensus on consistency as a chief value for our legal system; such a consensus would agree that similar issues presented in similar factual situations should be decided using the same legal principles, resulting in the same outcome regardless of the court or that court s location in this country. Yet despite the fact that all who must participate in our legal system seek to derive from it a high level of consistency, and despite the horror with which the legal establishment views the epithet of arbitrary and capricious, it is respectfully submitted that precisely such a situation is exactly what exists at the present time in the narrow but critical subject with which this article is concerned. As will be discussed herein, when the question concerns the rule that a court will apply to resolve a dispute as to the coverage afforded under a policy of marine insurance when it is alleged that a policy warranty has been breached by 112

3 Litigating Marine Insurance Warranties the insured, there exists at the present time a situation which can be properly described as one of chaos. Several recent decisions from federal district courts dealing with cases where coverage had been denied because of an alleged breach of an express warranty in a marine insurance policy have placed the issue into stark relief. A real problem exists at the present time, one in which our federal courts seem to be making decisions based on competing and conflicting case authorities. The situation presently exists in which a federal court in one part of this country may reach a decision by choosing to apply what it states is an established rule of federal admiralty law, while another federal court may well reach a completely different decision by choosing to reject the existence of any such established rule of federal admiralty law, contending that it is bound instead to apply a state law rule or statute. Other federal courts, aware of this situation and therefore unable to assert with confidence whether either federal admiralty law or state law should correctly apply to resolve a particular coverage dispute that has come before them, have been reduced to the expedient of protecting themselves against appellate reversal by asserting that there is no need to choose between federal as opposed to state rules, since in a particular instance the ultimate outcome of the litigation and the court s decision would be the same regardless of which rule were to be applied to the facts of the case. As will be seen, that response can be at least marginally satisfactory when there is no divergence between the federal and the state rule, but reliance upon this type of protective reflex would become quite unsatisfactory when these two legal regimes might be different and therefore necessitate different outcomes. So the question persists what legal rule applies to resolve a dispute between a marine insurer and an insured vessel owner when the latter has breached an express warranty contained in the policy insuring his vessel? Shall the court look to federal law or to state law? Is there a federal law rule that governs the breach of an express warranty in a policy of marine insurance? If there is, then what is that rule? Can such a rule be accepted nationwide as the uniform and consistent principle that will resolve all such disputes? Now some may object to any shedding of tears for the marine insurance industry, arguing that no acceptable basis exists for any such claims to a nationally uniform system of laws and procedures, when others of the various types and varieties of insurance have traditionally enjoyed no such national uniformity. Why should marine insurers, alone amongst all the many different types of insurers, claim it as their special and unique privilege to have their coverage disputes resolved in federal courts, vested with admiralty jurisdiction and applying special principles of federal admiralty law which may be and quite frequently are quite different from the laws passed by state legislatures which have always governed coverage disputes relating to auto, homeowners, professional liability and even aviation insurance? But the fact of the matter is that marine insurance is different in a number of important respects, and those differences have always been, and in the view of this writer still remain, the justification for the existence and the application of a consistent and uniform body of federal admiralty law principles that should furnish the rules of decision in every court, federal or state, in which a litigation might be filed. For example, the market for marine insurance policies is at the very least nationwide in scope, with the same essential 113

4 FDCC Quarterly/Winter 2007 contracts and agreements being peddled in every state where there is a port or a puddle of water substantial enough to float a vessel. That the market for marine insurance is even wider, being international in scope, is apparent from the fact that marine insurance policies are, and always have been, the specialty of those entities that have existed for centuries in the London Market (namely Lloyd s Underwriters and Institute of London Underwriters). That market traditionally has been the major and at times the predominant source of marine insurance policies sold in the United States. Beyond the London Market, European giants now compete in the American market, as well, and to deny the consistent nationwide application of consistent federal admiralty law rules in such circumstances cannot result in a rational or a smoothly running marketplace. These same considerations quite simply do not exist when the subject is liability insurance coverage for drivers of automobiles. Consideration should also be accorded to the fact that for at least two hundred years there did exist a uniform and nationally applied body of federal admiralty law in general, and a uniform and nationally applied federal admiralty law principle with reference to breach of an express policy warranty in particular. Reasoning that American admiralty law should remain in essential harmony with British admiralty law, the Supreme Court has ruled on a number of occasions that [t]here are special reasons for keeping in harmony with the marine insurance laws of England, the great field of this business II. A Federal Admiralty Law Rule The lamentable predicament described above is of a fairly recent vintage, with the centuries-long harmony between U.K. and U.S. marine insurance law, and its happy circumstance of a nationally applied rule of decision, having been disrupted only some fifty years ago. Once, however, when the salutary consequences of a uniform and consistent admiralty law were widely recognized and promoted, there would have been no possibility of a breach of warranty dispute having a different outcome due to the irrelevant fact that the policy had been delivered in Texas as opposed to New York, or to that equally irrelevant fact that the litigation was taking place in a federal court rather than in a state court. Virtually everywhere in the world where the language spoken in the court was English, and where, therefore, the tradition of the laws, statutes and practices of the United Kingdom would have been recognized, any litigation involving a breach of an express warranty in a marine insurance policy would have been resolved by the application of a rule calling for the strict or literal 2 Queen Ins. Co. v. Globe & Rutgers Fire Ins. Co., 263 U.S. 487, 493 (1924). 114

5 Litigating Marine Insurance Warranties compliance with that warranty. 3 American courts adjudicating disputes requiring application of or reference to British law have had no difficulty whatsoever discerning what this law was and continues to be, i.e., that express warranties in policies of marine insurance must be strictly or literally complied with. In addition, the complete absence of any causal relationship between the breach and the loss will not avoid or even mitigate this result. 4 As early as 1834, in the case of Hazard s Administrator v. New England Marine Insurance Co., 5 and right up until 1955, review of the jurisprudence will reveal that the federal courts in the United States were following the British rule calling for strict or literal compliance with express warranties in marine insurance policies. Criticizing the 1955 decision that would mark the departure from consistent adherence to the strict or literal compliance rule, and also citing to the numerous pre-1955 cases that had affirmed the existence and the continued vitality of the strict or literal compliance rule in the United States, Prof. Schoenbaum has stated: It is true that not every circuit in the United States had pronounced the [strict or literal compliance] rule in admiralty jurisdiction, but, because of the geography of the United States, admiralty cases are rare or non-existent in judicial circuits located in the country s interior. All the major admiralty Courts of Appeal had long accepted the literal compliance rule. They had even cited and relied upon English authors and authorities. The Supreme Court was guilty of sloppy research, for it did not even cite most of these cases and even ignored its own jurisprudence adopting the strict compliance rule in a marine insurance case. 6 Imagine that pre-1955 world, and contrast it with the one that is today extant: regardless of where a breach of warranty case was being heard whether in Baltimore or Houston, Des Moines or Los Angeles, whether in the Eastern District of New York, the Northern District of California or the Southern District of Florida the judge could with absolute certainty have been able to bring to the resolution of the coverage dispute the utter confidence that there existed a universally acknowledged and accepted rule of federal admiralty law. Even more critically, the attorneys and even the litigants themselves would have possessed that exact 3 See British Marine Ins. Act of 1906, 6 Edw. 7, C. 41, sec. 33(3), which states that in the event of any breach of an express warranty, the insurer is discharged from liability as from the date of the breach of warranty, but without prejudice to any liability incurred by him before that date. See also, Thomas J. Schoenbaum, Key Divergences Between English and American Law of Marine Insurance (1999). 4 See, e.g., Hartford Accid. & Indem. Co. v. Lloyd s of London, 1989 A.M.C (E.D. Pa. 1989); See also, H.M. The Queen v. Les Tulloch, 1989 A.M.C (Canada, Fed. Ct. App. 1989) U.S. (8 Pet.) 553 (1834) 6 Schoenbaum, supra note 3, at 143 (footnote omitted). 115

6 FDCC Quarterly/Winter 2007 same certainty regarding the legal rule that would resolve their dispute, and, even before making the always difficult decision to resort to the expense of such litigation, would have been able to evaluate with great reliability their respective chances of obtaining a satisfactory outcome. In contrast to that happy situation, consider the situation that must be confronted at the present time by attorneys and litigants in marine insurance cases involving a breach of an express warranty. As stated at the outset of this article, the situation has recently deteriorated to the point where there is no longer even a pretense of consensus with regard to whether there is any existing federal admiralty rule, with the outcome often depending on which express warranty amongst a sizable number of such provisions is the precise one actually in dispute, or even what that federal rule might actually be. At the present time, in stark contrast to the pre-1955 world, the geographic location where an action is pending can be and all too frequently is critically important to the outcome of the litigation. That is because reliance upon a state statute to adjudicate a breach of warranty case must mean that results will differ from venue to venue and from court to court since various states have enacted various and quite differing rules for resolving breach of warranty cases. As will be seen, some states have decided to legislatively enact the good old strict or literal compliance rule, 7 while others have enacted laws intended to ameliorate what are thought to be the unduly harsh results of following the old rule. 8 How did this current predicament come to exists? To answer that question, it is necessary to turn our clocks back over fifty years, and to review, very briefly, what perhaps still remains the single most controversial admiralty case ever decided by the Supreme Court of the United States. III. The Wilburn Boat Case It is startling to consider that in the field of marine insurance law, a case decided by the United States Supreme court over fifty years ago remains not only problematic but also controversial. The problematic and controversial nature of the case of Wilburn Boat Co. v. Fireman s Fund Insurance Co. 9 is made even more substantial by the astonishing fact that 7 An example, which will be discussed much more fully, infra, is New York State, where the apposite statutory provision calls for reference to the rule of strict or literal compliance in all cases involving express or implied warranties under a contract of Marine Insurance See, N.Y. Ins. L., 150 (3) (2006). 8 The classic example would be the statute from the state of Texas which was deferred to by the United States Supreme Court in the Wilburn Boat case, which provision requires the showing of a causal relationship between the breach and the incident which leads to or causes the casualty. See Tex. Ins. Code Ann (2006) U.S. 310 (1955). 116

7 Litigating Marine Insurance Warranties right up until the present day this same case is also the last occasion on which the Supreme Court of the United States has taken up and issued a ruling on any marine insurance issue. An equivalent predicament might exist if the Supreme Court had nothing further to say on the subject of civil rights and racial equality since the decision in Brown v. Board of Education 10 in 1954 or on the subject of abortion and reproductive rights since the case of Roe v. Wade 11 in Having roiled the previously placid waters of the federal maritime law, at least insofar as breach of warranty was concerned, the Supreme Court then turned away from the chaotic situation that its ill-founded decision had created and left all of the federal circuit and district courts, and every level of each one of the fifty state judicial systems, to attempt to repair and, if possible, reconstitute the consistent and rational structure that had existed in this field of law for the previous two hundred fifty years. It must be said that, thus far, no such consistent or rational structure has been reconstituted. Rather, in the wake of this failure it has been left to judges and attorneys, underwriters, and insureds to simply do their best in dealing with the unfortunate and chaotic results of the decision. The marine insurance policy that was the subject of the Supreme Court s review contained a provision that was and remains quite common in the marine insurance policies that are issued to cover pleasure boats and private yachts. That provision was an express warranty stating that the vessel would be used by the insured for the latter s personal and private pleasure purposes exclusively, and it is intended to emphasize the marine insurer s refusal to bear the additional exposure believed to be the consequence of commercial activities. When the insured vessel was destroyed in a fire, the post-incident investigation revealed that the insureds had been carrying paying passengers and the insurer denied the claim, contending that under the authority of the strict or literal compliance rule, such a breach of the express warranty voided the coverage despite the rather obvious absence of any causal connection between the loss and the breach. The insureds asserted that since the policy had been delivered in Texas, a Texas state statute should provide the rule of decision in the case rather than any rule of federal admiralty law, that Texas statute being one which prohibited any breach of a warranty from being used as a defense to a suit or to avoid a policy unless the breach or violation contributed to cause the destruction of the property Relying on the authority of the strict or literal compliance rule as a well established rule of the federal admiralty law, both the district court and the Court of Appeals for the Fifth Circuit had no difficulty in rejecting the insured s arguments calling for any reference to a Texas state statute. The policy was ruled to have been voided as a result of the insured s breach of the express warranty calling for the vessel to be used for private pleasure purposes U.S. 483 (1954) U.S. 113 (1973). 12 Tex. Ins. Code Ann (2006). 117

8 FDCC Quarterly/Winter 2007 only. However, the decision of the Fifth Circuit, along with all of the various and numerous other circuit and district court decisions that had held the strict or literal compliance rule to be an established principle of the federal admiralty law, was rejected by the Supreme Court, with Justice Black writing for the majority and stating: Whatever the origin of the literal performance rule may be, we think it plain that it has not been judicially established as part of the body of federal admiralty law in this country. Therefore, the scope and validity of the policy provisions here involved and the consequences of breaching them can only be determined by state law unless we are now prepared to fashion controlling federal rules. 13 Justice Reed published a dissenting opinion that took the majority strongly to task for what he clearly perceived to have been an unwarranted departure from precedents mandating both harmony with British law and practice and enforcement of a nationwide and uniform rule of federal admiralty law on this subject: Our admiralty laws, like our common law, came from England. As a matter of American judicial policy, we tend to keep our marine insurance laws in harmony with those of England. Before our Revolution, the rule of strict compliance with maritime insurance warranties had been established as the law of England. That rule persists. While no case of this Court has been cited or found that says specifically that the rule of strict compliance is to be applied in admiralty and maritime cases, that presumption has been consistently adopted as the basis of reasoning from our earliest days. Other courts have been more specific. No case holds to the contrary. 14 This decision soon elicited a strong reaction, with most of the commentary emphatically in the negative. 15 Suggestions for dealing with the obvious difficulties presented by the threatened chaos included seeking the enactment of a federal marine insurance statute akin to the British Marine Insurance Act of Now, more than fifty years since the decision and with no pronouncements or guidance of any kind from the Supreme Court during that entire period of time, and with cases in abundance having been decided that illustrate U.S. at Id. at 325 (citations omitted). 15 See, e.g., Nicholas J. Healy, The Hull Policy: Warranties, Representations, Disclosures and Conditions, 41 Tul. L. Rev. 245 (1967) (referring to the Wilburn Boat case as an anomaly ); Grant Gilmore & Charles L. Black, The Law of Admiralty (1st ed. 1957) (using the term chaos to describe the situation). 16 Benjamin W. Yancey, State Regulation of Marine Insurance, 23 Ins. Counsel J. 143, 148 (1956). 118

9 Litigating Marine Insurance Warranties all too clearly just how well placed were the concerns of the early critics, the entire marine insurance industry and the North American Market that it strives to serve have been left to suffer the inevitable consequences. IV. The Courts Choose Sides Federal Law or State Law To illustrate how different courts around the nation reacted to the Wilburn Boat decision, all one need do is review some of the cases that have been issuing out of various American courts ever since the Supreme Court held that, at least with specific reference to an express warranty of private pleasure use only, there was no existing federal admiralty rule. Striving to adhere to the majority decision s directions, courts have conducted what has come to be characterized as a Wilburn Boat analysis, which asserts that state law will control the interpretation of a marine insurance policy only in the absence of a federal statute, a judicially fashioned federal admiralty rule, or a need for uniformity in admiralty practice. 17 Since, in contrast to the situation in the United Kingdom, there is no federal statute on marine insurance, in actual practice this so-called method of analysis has left it up to the individual whims of each individual court to judge for itself in any particular warranty case whether, in that jurist s opinion, there exists some consideration that might be accepted as constituting a judicially fashioned federal admiralty rule or as justifying a need for uniformity in admiralty practice. Different district court judges and different panels of circuit court judges, precisely as might be expected and precisely as the commentators feared, have taken widely divergent views of whether the existence of a judicially fashioned admiralty rule can be discerned in the case of any particular warranty, or whether the resolution of a particular coverage dispute involving that warranty calls for the court to fashion such a rule in order to meet the need for uniformity in admiralty practice. Perhaps the most widely utilized express warranty in the entire field of marine insurance is the Navigational Limits Warranty, commonly appearing in all types of marine policies and made a part of policies issued to cover both commercial and private pleasure vessels. As the name implies, the Navigational Limits Warranty provides, in myriad different verbiages and provisions, that the vessel is to be operated, and there will only be insurance, within the boundaries described in the warranty itself or elsewhere in the body of the insuring agreement. For example, the warranty might state that it is warranted that the vessel is to be operated only along the east coast of the United States, south of the latitude of Eastport, Maine and north of the latitude of Jacksonville, Florida, and not further than 250 miles off- 17 Bohemia, Inc. v. Home Ins. Co., 725 F.2d 506, 510 (9th Cir. 1984). 119

10 FDCC Quarterly/Winter 2007 shore. Under such an express and well worded warranty, the act of taking the insured vessel into the waters of either the Caribbean Sea or the Gulf of Mexico would clearly constitute a breach, and any claim presented by the insured vessel owner occurring in either of those inviting but prohibited bodies of water would leave the anxious underwriter and his claims manager with several questions, upon the answers to which the coverage decision must be contingent: Does the policy provide coverage for the loss, or does the breach of the express warranty void the coverage? Must there be some causal connection between the loss and the breach? Is there an established federal admiralty rule that applies to the breach of this particular warranty? As a point of departure only, consider the case of Lexington Insurance Co. v. Cooke s Seafood, 18 a 1988 case involving a 100 mile navigation limit in which the Eleventh Circuit affirmed the ruling of the district court in Georgia that federal admiralty law required strict construction of express warranties in marine insurance policies and that any breach of such a warranty by the insured would have the effect of releasing the marine insurer from liability for the loss, even where it is shown that compliance with the warranty would not have avoided the loss. Only one year after the Eleventh Circuit s decision in the Cooke s Seafood case, the federal district court in San Francisco decided the case of United States Fire Insurance Co. v. Liberati, 19 involving a warranty confining a fishing vessel to the navigable waters and tributaries of San Francisco Bay. When a crew member was injured while the vessel was fishing in the vicinity of Bristol Bay, Alaska, the marine insurer denied coverage for the claim due to the breach of the express warranty and presented a summary judgment motion which argued that breach of the warranty voided the policy. The court did a much abbreviated Wilburn Boat analysis and quickly stated its ruling that this maritime insurance contract [was] governed by state law, since there is no well settled applicable federal admiralty rule. 20 Since California was the state with the greatest interest in the dispute, the court looked to that state s insurance code provision and held: The settled rule in California is that no right to avoid or rescind an existing insurance policy arises from the violation by the insured of a provision in the policy unless such provision materially affects the risk, or the policy specifically sets forth that the breach will void the policy. The rule is the same regardless of the fact that the provision may be characterized as a warranty F. Supp. 323 (S.D. Ga. 1987), aff d, 835 F.2d 1364 (11th Cir. 1988) A.M.C (N.D. Cal. 1989). 20 Id. at Id. at 1441 (citation omitted). 120

11 Litigating Marine Insurance Warranties Since the policy did not contain any statement declaring that breach of the warranty would void coverage, California state law required evidence of a breach materially affecting the risk of having to defend and indemnify the insured for incidents occurring far away from the waters of San Francisco Bay. Summary judgment had to be denied to the marine insurer since the materiality of the warranty was deemed to be a question of fact. That is a stark and disturbing contrast to the situation that would have resulted had the case arisen in Georgia or Florida or any other court within the boundaries of the Eleventh Circuit, where on the authority of the Cooke s Seafood case and the Eleventh Circuit s approval of the strict or literal compliance rule, the summary judgment motion would have been granted. Conspicuous by its absence was any mention of the ruling by the Eleventh Circuit in the Cooke s Seafood case, or any discussion of whether perhaps some judicially fashioned admiralty rule or perhaps some requirement or minimal need for uniformity in admiralty practice just might exist in cases involving Navigational Limits Warranties. Even more distressing, less than two years after the Northern District of California s ruling in the Liberati case, another district court within the Ninth Circuit came to an utterly different result, in explicit reliance upon the reasoning in the Cooke s Seafood case. In Port Lynch, Inc. v. New England International Assurety, 22 the insured fishing vessel was destroyed by a fire while it was located in the Bering Sea, more that 1000 miles north of Southeast Alaska where its express Navigational Limits Warranty restricted its operation. Rejecting the vessel owner s contention that Washington state law should be applicable to the dispute, and that Washington state law would require the existence of a causal connection between the breach of the warranty and the loss, the Western District of Washington granted the marine insurer s motion for summary judgment, expressly adopting the reasoning of the district court in Cooke s Seafood, stating: Wilburn Boat does not require this court to reject solidly entrenched rules of maritime law applicable to the precise types of warranties at issue in this case in favor of applying general state insurance principles. As stated earlier, Wilburn Boat merely provides that state law will control the interpretation of a marine insurance policy only in the absence of a federal statute, a judicially fashioned admiralty rule, or a need for uniformity in admiralty practice. With respect to the interpretation of navigational and trading warranties, the Court holds that there is both a judicially fashioned admiralty rule which applies and a need for uniformity in admiralty practice. The federal admiralty rule requiring strict interpretation of navigational and trading limits has been adopted and applied by almost every federal court which has considered the scope and effect of navigational and trading limits in marine insurance policies F. Supp. 816 (W.D. Wash. 1991). 23 Id. at 824 (citations omitted). 121

12 FDCC Quarterly/Winter 2007 Interestingly absent is any mention of the ruling by its sister court from the Northern District of California in the Liberati case, or any discussion of how that member of the Ninth Circuit had managed to conclude that there existed neither a judicially fashioned admiralty rule nor any particular need for uniformity in admiralty practice in cases involving Navigational Limits Warranties. Then, in two cases in the Eleventh Circuit just a few years later, it seemed that the rule requiring strict or literal compliance, at least in the case of Navigational Limits Warranties, might become universally accepted. In 1996, in the case of Hilton Oil Transport v. Jonas, 24 the appellate court reversed a summary judgment in favor of the marine insurer and returned the case to the district court only because of uncertainty regarding the impact on the policy s Navigational Limits Warranty of a held covered clause, stating that such reconsideration was critical in view of the admittedly harsh consequences of what it stated quite clearly was the federal admiralty rule on the subject of breach of this express warranty: In the absence of a held covered clause [a] breach of warranty discharges the insurer from liability and deprives the assured from recourse against the insurer, whether the loss can be traced to the breach or not and even though such breach was innocently or inadvertently committed by the assured. The admiralty cases that support this principle are legion and form a judicially established and entrenched federal admiralty rule. Thus, in the absence of a held covered clause, federal admiralty law, not state law, would control. 25 Just three years later, in the case of La Reunion Francaise, S.A. v. Christy, 26 a summary judgment was granted to a marine insurance company based on breach of a policy s Navigational Limits Warranty when the estranged husband of the insured vessel owner took the vessel to Jamaica, where it was eventually lost, despite a warranty limiting use of the vessel to the waters of the east coast of the United States. Underwriters denial of the claim for the loss of the vessel was upheld by the district court, and a summary judgment motion granted, in reliance upon the Cooke s Seafood case, as well as two more recent decisions similarly asserting that there existed an established and well entrenched federal admiralty rule and also a clear and compelling need for uniformity in this express warranty F.3d 627 (11th Cir. 1996). 25 Id. at 630 (citations omitted) A.M.C (M.D. Fla. 1999). 27 The two cases were Home Ins. Co. v. Vernon Holdings, 1995 A.M.C. 369 (S.D. Fla. 1994) and Aetna Ins. Co. v. Dudney, 595 So. 2d 238 (Fla. Dist. Ct. App. 1992). 122

13 Litigating Marine Insurance Warranties The seeming possibility that the matter had been resolved in favor of the Eleventh Circuit s stated position in support of the existence of an established federal admiralty rule, and that such a rule would be the familiar and long established pre-wilburn Boat rule of strict or literal compliance was soon shown to be fool s gold. In the case of Pacific Fisheries Corp. v. HIH Casualty & General Insurance, Ltd., 28 decided in early 2001, the Ninth Circuit Court of Appeals was presented with a simple case that should have afforded a quick and easy opportunity to terminate the conflict or even the potential for conflict between the federal circuits, but failed to do so. The insured s fishing vessel traveled to Guam, beyond the boundaries set for the Navigational Limits Warranty in the policy, where it suffered an engine breakdown that the marine insurer denied on the basis of the clear breach of the express warranty. A bench trial in the Northern District of California ended with judgment for the marine insurer on the basis of California state law and its statute allowing coverage to be voided when there is a showing that the warranty was material or where the policy expressly declares that a breach will render the coverage void. Rejecting a clear opportunity to make a statement approving the reasoning of the district court from the Western District of Washington in the Port Lynch case and to thereby bring consensus to an entire area of marine insurance law, the Ninth Circuit instead approved the lower court s decision made on the basis of California state law. The effect of this relatively recent decision must be a grudging, but unavoidable, recognition that there is a conflict in the stated positions taken by the federal appellate courts in two of the most active and important locations in this nation. There is at least a strong possibility that courts located in the Ninth Circuit are going to resolve breach of warranty cases on the basis of state law, whereas those in the Eleventh Circuit are going to turn to federal law. The state laws in California and in Washington differ in substantial respects from the familiar federal rule of strict or literal compliance with express warranties, and, as a result, there are going to be different outcomes in cases presenting the same or substantially similar fact patterns, depending upon whether the resulting litigation is conducted in San Francisco or in Miami, in Seattle or in Tampa. So much for consistency. So much for uniformity. Other cases involving other warranties seem to demonstrate that marine insurers and insureds, as well as their attorneys, will have to deal with a failure or an outright refusal by the courts to agree upon consistent legal principles for resolving disputes arising due to breach of an express warranty. Right up to virtually the present moment, as will be reviewed below, there have been cases in which courts have been presented with clear opportunities to bring consistency to this area of the law, and yet the courts seem to have deliberately spurned such opportunities. In other, somewhat less recent cases, we can observe courts struggling with the problem. Examples abound A.M.C. 952 (9th Cir. 2001). 123

14 FDCC Quarterly/Winter 2007 In the case of Prado, Inc. v. Lexington Insurance Co., 29 the federal district court in Boston held that the insured s breach of a marine policy s express warranty calling for a particular individual to be aboard the insured vessel and acting as the captain would be resolved under the law of the Commonwealth of Massachusetts. Compare this to the decision of the Ninth Circuit, the same court that, as stated above, determined that California state law must apply to disputes arising out of breach of the Navigational Limits Warranty, but which has recently affirmed a decision from the district court in Honolulu, in the case of Yu v. Albany Insurance Co., 30 holding that a Captain Warranty fell within the purview of the federal admiralty law and its familiar and well established principle requiring that such provisions be strictly and literally complied with. Rather interestingly, in a self-protective measure clearly derived from the unfortunate inability to predict which law, federal or state, would apply to any particular warranty, we see courts resorting to the transparent expedient of asserting that the announced decision would have been the same under both or either the federal or the state rule. So in the aforementioned Yu case, we actually see the Court of Appeals decision asserting that while it is affirming the district court s ruling reached on the basis of federal admiralty law, for the sake of safety the exact same outcome would have resulted even if Hawaiian state law had been employed: We need not decide, however, whether federal or state law governs because we conclude that, even under Hawaii law, the violation of the Captain Warranty suspends coverage whether or not the violation has been shown to have caused the loss. Indeed, the district court, although relying on federal law, stated that, if it were to apply state law, it would conclude that Hawaii law would enforce the Captain Warranty according to its terms. 31 The federal district court in Orlando, Florida responded in much the same manner in the matter of AXA Global Risks (UK) Ltd. v. Webb, a case involving a type of warranty termed a Lay up Warranty. It is quite common in pleasure boat and yacht policies and provides that the insured vessel will be out of the water, layed up, and not operated during some particular period of time, most commonly the winter months in the more northerly latitudes of the continental United States. The claim for the loss of the vessel was denied by the marine A.M.C (D. Mass. 1990) A.M.C. 660 (9th Cir. 2002). 31 Id. at (citations omitted). 124

15 Litigating Marine Insurance Warranties insurer when the vessel sank while being operated by the insured during the period of time when he had warranted that it would be out of the water and on shore. The federal district court granted a summary judgment motion made by the insurer, clearly citing to the federal admiralty rule of strict or literal compliance with express warranties, but also going a good distance further and safely wrapping the decision in the state flag of Florida by stating that the same outcome would have followed had the state law been referred to in order to decide the issue. 32 V. Recent Decisions Utter Chaos Three of the most recent decisions from the federal district courts demonstrate that it may no longer be possible in any real sense to predict what law might be applied, or what effect might be given, when the evidence illustrates that an insured has breached an express warranty in a marine insurance policy. These most recent cases would seem to suggest that even the desire for some minimal degree of consistency in this area may be little more than a hopeful but frustrated aspiration. In Commercial Union Insurance Co. v. Pesante, 33 the insured s claim for coverage under the Protection & Liability portion of the policy was denied because the incident occurred while the fishing vessel was en route back to port after having engaged in something known as gill netting. The policy contained a Commercial Fishing Vessel Endorsement that included an express warranty stating that the only commercial use of the insured vessel(s) shall be for lobstering, 34 an activity that the district court had no difficulty distinguishing from gill netting. The court stated that there was no question that the use of the [vessel] for gill netting breached the warranty that it would be used only for lobstering, 35 and then put the question whether that breach voided the policy even though the [vessel] was not engaged in gill netting when it collided with the Boston Whaler. 36 Acknowledging that counsel for the marine insurer was arguing for application of what he maintained was the federal rule 32 Fla. Stat (2) (2006) states: A breach or violation by the insured of any warranty, condition, or provision of any wet marine or transportation insurance policy, contract of insurance, endorsement, or application therefore 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 F. Supp. 2d 81 (D. R.I. 2005). 34 Id. at Id. 36 Id. 125

16 FDCC Quarterly/Winter 2007 of strict or literal compliance with express warranties, the court revealed a reluctance to agree, stating that the cases do not support that proposition. 37 After the obligatory bow to Wilburn Boat and that decision s alleged direction to pay deference to state hegemony over insurance, 38 the Rhode Island district court judge went off in another direction completely. Rather than proceeding to decide the dispute under Rhode Island state law, as would be expected under Wilburn Boat, he instead applied federal admiralty law. However, rather than applying the strict or literal compliance rule as the well established federal rule, as the familiar principle found in the law of the United Kingdom, or as in the many cases decided both prior and subsequent to Wilburn Boat, the court asserted that the federal rule that it was going to favor would be one that called for simple suspension of coverage only so long as the breach of warranty was in effect or ongoing! Although the insured vessel had been gill netting prior to the incident, and in fact had been gill netting on a regular and frequent basis for quite some time prior to the incident, reference to an alleged suspension rule in federal admiralty law had the effect of ensuring that coverage would exist, since the vessel had stopped active gill netting and was simply motoring back to harbor when it came to grief. Less than two months later during 2005, in the case of New Hampshire Insurance Co. v. Dagnone, 39 the Rhode Island district court issued another ruling, this time dealing with a Lay Up Warranty alleged to have been breached by the fact that the vessel was not laid up and out of commission during the period shown on the declarations. 40 Just like the judge in the Pesante case, the judge in Dagnone acknowledged that the marine insurer was arguing for application of what its attorney maintained was the federal rule of strict or literal compliance with express warranties. That would have compelled a decision in favor of the marine insurer since the strict or literal compliance rule required no proof of any causal connection, nor did it require that the breach be in effect at the time of the loss. Once again, however, the court stated with reference to the strict or literal compliance rule that this Court is not convinced that such a rule exists, 41 and instead decided the case by applying the law of the state of New York as the state having the greatest interest in having its law apply to the case. The ruling asserted it reliance not only on the authority of Wilburn Boat but also on the decision in the Pesante case, utterly ignoring the crucial fact that the Pesante decision had merely rejected strict or literal compliance as the established federal rule. However, the Pesante decision had expressly accepted that there did indeed exist a recognized federal admiralty rule that would be relied upon in order to resolve breach of warranty cases, and 37 Id. at Id F. Supp. 2d 480 (D. R.I. 2005). 40 Id. at Id. at

17 Litigating Marine Insurance Warranties had merely concluded that the said federal rule was the so-called suspension rule for which there existed some modest basis in the jurisprudence. 42 Perhaps most disturbing, the Rhode Island court took an express warranty, the Lay Up Warranty a provision no less unique to maritime issues, and neither less antediluvian nor any less well established that the Navigational Limits Warranty, a provision that in point of fact had never previously been the subject of anything other than federal admiralty law and, by the simple act of ignoring well known and established cases and authorities, 43 succeeded for the first time in subjecting this warranty to the pernicious and tiresome debate over what law must apply where it is alleged to have been breached. The court made a bad situation worse and added to the sum total of the uncertainty that continues to plague marine insurance law ever since Wilburn Boat and which gives every indication of only becoming more pronounced. Surely it must be apparent why the foregoing is disturbing and why it should matter to all persons and institutions that might have occasion to bring to an American court a dispute centering on a breach of a particular express warranty in a marine insurance policy. In the same federal district, within weeks of each other, two different decisions were issued, one of which applied what purported to be a federal rule of decision to a warranty case while the other applied state law. The decision applying what was described as federal admiralty law resurrected an obscure doctrine also based on questionable precedents. This must disturb attorneys who might well believe they possess some modest right to demand consistency in order to be in a position to advise clients about what law is going to apply to a dispute and what the outcome might potentially be based on that law. As it is, outcomes are going to depend on what presently gives every appearance of being the courts capricious and unknowable inclinations in favor of federal or state law, or one version of the federal law or another. Most recently, in the case of Cunningham v. Insurance Co. of North America, 44 the federal district court in Brooklyn was again presented with a case involving a Lay Up Warranty. The federal magistrate quickly disposed of the argument advanced by counsel for the insurer that there might be precedents or authorities supporting the existence of a federal 42 See, e.g., Henjes v. Aetna Ins. Co., 132 F.2d 715 (2d Cir. 1943) as an example of a pre-wilburn Boat case invoking the suspension rule ; Aguirre v. Citizens Cas. Co., 441 F.2d 141 (5th Cir. 1971) as an example of a post-wilburn Boat case invoking the suspension rule. See also, Thoms J. Schoenbaum, Warranties in the Law of Marine Insurance: Some Suggestions for Reform of English and American Law, 23 Tul. Mar. L.J. 267 (1999) for a discussion of the subject. 43 Cases that had decided Lay Up Warranty disputes on the basis of federal admiralty law and the strict or literal compliance rule include Goodman v. Fireman s Fund Ins. Co., 1979 A.M.C (4th Cir. 1979); AXA Global Risks (UK) Ltd. v. Webb, 2000 A.M.C (M.D. Fla. 2000); Jefferson Ins. Co. v. Huggins, 2000 A.M.C (N.D. Tex. 2000) A.M.C (E.D.N.Y. 2006). 127

18 FDCC Quarterly/Winter 2007 rule governing the interpretation of warranties in marine insurance contracts, specifically the Eleventh Circuit s decision in the Lexington Insurance Co. v. Cooke s Seafood. 45 The magistrate asserted that even were he to concede that such precedents might actually exist, these cases supporting a vital and established federal rule came from other circuits 46 and therefore could not be relied upon to vary from the Supreme Court s holding in Wilburn Boat. According to the magistrate, [neither] is there any basis for the court to fashion a federal rule in cases concerning warranties in marine insurance contracts. 47 For this particular jurist, neither the peculiar nature of the Lay Up Warranty (applicable only to vessels, as no other type of insured property is regularly or routinely prohibited from being operated during winter months, or stored ashore and out of the water) nor the fact that other courts had determined that the federal rule of strict or literal compliance did indeed apply to breaches of the Law Up Warranty could support application of such a rule. The uniformity so essential to a coherent body of admiralty law 48 was not a sufficient value for this jurist to allow the court to join others in affirming the existence of a binding and nationwide federal rule of decision. Not believing that uniformity is essential or even particularly important to admiralty law, this jurist decided arbitrarily to join with others who prefer application of state law to breach of warranty litigation. This outcome is especially surprising and made even more distressing by the fact that the court applied the law of the state of New York, which is nothing less than the strict or literal compliance rule in statutory form. As will be discussed more fully below, a number of distinct approaches have been taken by state legislatures over the years in dealing with how breaches of warranty are to be resolved and the legal principles that the state courts are to have reference to when cases arise. However, as noted, the legislature in New York seems to have intentionally crafted a provision that calls for application of the strict or literal compliance rule only where policies of marine insurance are concerned, 49 resulting in a situation in which New York state courts have long recognized that an express... warranty [in a marine insurance policy] must be literally complied with, and... noncompliance forbids recovery, regardless of whether the omission had causal relation to the loss Lexington Ins. Co. v. Cooke s Seafood, 686 F. Supp. 323 (S.D. Ga. 1987), aff d, 835 F.2d 1364 (11th Cir. 1988). 46 Cunningham, 2006 A.M.C. at Id. at Cooke s Seafood, 686 F. Supp. at See, e.g., Hartford Fire Ins. Co. v. Mitlof, 2002 A.M.C. 1901, 1904 where the court stated, New York s Insurance Law specifically carves out a maritime exception from its general rule regarding breach of collateral warranties. 50 Jarvis Towing & Transport. Corp. v. Aetna Ins. Co., 82 N.E.2d 577, 577 (N.Y. 1948). 128

19 Litigating Marine Insurance Warranties Therefore, the Report and Recommendation issued by the United States magistrate in the Cunningham case goes beyond what was required in order to rule that the warranty had been breached or that a rule requiring strict or literal compliance would support a ruling in favor of the marine insurer for that breach. He could have quite easily taken the same tack that other courts have had where the same outcome must result regardless of whether federal or state law is applied to decide the effect of a breach, 51 in that manner avoiding choosing sides and avoiding issuing a ruling which is now almost inevitably going to be cited as further justification for taking the Wilburn Boat holding to its most extreme conclusion: rejecting the existence of any federal law on breach of express warranties in marine insurance. The Report and Recommendation could have avoided inflicting any further harm on the already rent garment that was once the federal admiralty law and could have stated explicitly that the same ruling must apply regardless of which law might be applied. Unmindful or unconcerned with national or international uniformity of admiralty law in general, or of marine insurance law in particular, the federal magistrate in Cunningham may quite possibly have sounded Last Post for what was for centuries thought to be a critical, even an essential, element of that body of law and practice. VI. What is To Be Done? If there is no longer any federal admiralty rule, or if whatever does exist must be recognized as being a rule in name only, possessing whatever meaning or content any particular judge wishes to invest it with, then what is the situation that confronts the marine insurance industry? How shall marine insurers and insureds, and the attorneys who bring to court the inevitable disputes that must arise between those parties, react to what all must now admit is a chaotic situation in which the courts appear willing and able to arbitrarily cherry-pick whatever legal principle might be at hand in order to resolve a case involving an alleged breach of any particular express warranty? What is to be done? It should be apparent that two things are not going to happen, and that those who might have some real interest in the reintroduction of some element of consistency in marine insurance law should place their faith neither in the Congress nor in the Supreme Court of the United States. There will not be any American statutory counterpart to the British Marine Insurance Act of 1906, bringing a uniform national statutory regime to marine insurance. It has been more than fifty years since the waters were first roiled by the Wilburn Boat case, and if the Congress has not responded during that time with the passage of a national legislative enactment, it might be safely predicted that no sudden sense of urgency should 51 See, e.g., Yu v. Albany Ins. Co., 2002 A.M.C. 660 (9th Cir. 2002); AXA Global Risks (UK) Ltd. v. Webb, 2000 A.M.C (M.D. Fla. 2000). 129

20 FDCC Quarterly/Winter 2007 reasonably be expected from the solons of Capital Hill. And to expect the Supreme Court to revisit its handiwork seems similarly unjustified, more especially when one takes note of the fact that the issue of which rule to apply to a breach of warranty case is not the only area of marine insurance law where a veritable chasm between the circuit courts has been allowed to develop and persist by a seemingly disinterested Supreme Court. For fifteen years now, when it comes to deciding cases where a marine insurance claim has been rejected due to what is alleged by the underwriter to have been a misrepresentation of material fact on an application, state and federal courts within the boundaries of the United States Court of Appeals for the Fifth Circuit have followed a rule of decision distinctly different from the rule accepted as binding by virtually every other court in the United States. In contrast to every other court around the country that has enjoyed an opportunity to address the subject, the Fifth Circuit in 1991 rejected the centuries old marine insurance doctrine known as uberrimae fidei, or utmost good faith, which permits a marine policy to be voided where the coverage was procured even via an innocent or unintentional misrepresentation of, or failure to disclose, material facts. 52 This rule of utmost good faith is accepted by the other courts across the nation as a firmly established and binding principle of federal admiralty law, leaving courts in Texas and Louisiana to make reference to those states legislative enactments and resulting in a situation where completely different outcomes can and do follow from the exact same fact patterns, depending on nothing more than where a policy may have been delivered or where a particular litigation may be filed. 53 If the Supreme Court has shown itself impervious to recognition of the pressing need for remediation in such a situation, surely there is no reason to expect the Court to suddenly recognize a pressing need for any such intervention where breach of warranty is concerned, save perhaps for that hope which poets tell us always springs eternal. One possibility is, of course, to simply accept what has been dished out, and to learn to deal with a legal system that yields arbitrary and capricious outcomes depending on nothing more compelling that geography and the personal preferences of the individual who happens to be the judge. The marine insurance industry and those who sup at its table can just make the best of a bad situation, forget about ever again enjoying national consistency (undue concern for which can be dismissed as the hobgoblin of little minds), and become resigned to dealing with the statutory provisions of the individual states. 52 See Albany Ins. Co. v. Anh Thi Kieu, 1991 A.M.C (5th Cir. 1991). 53 See also Progressive Northern Ins. Co. v. Bachman, 2004 A.M.C (W.D. Wis. 2004) where a federal district court in Wisconsin held that a state statute rather than the federal rule of utmost good faith would govern a case involving coverage for a pleasure boat damaged on an inland lake, where no issues of commercial or international scope were involved. 130

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