USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 96-1280

OLYMPO TRANSPORT COMPANY OF PUERTO RICO, ET AL.,

Plaintiffs, Appellants,

v.

CERTAIN INSURANCE COMPANIES AT THE INSTITUTE

OF LONDON UNDERWRITERS, ET AL.,

Defendants, Appellees.

____________________

ERRATA

The

published opinion of this

Court issued on December 30,

1996, is amended as follows:

Cover sheet:

delete the [Hon. Carmen Consuelo Cerezo,

U.S.
____

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

______________
place.

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1280

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

Plaintiffs, Appellants,

v.

CERTAIN INSURANCE COMPANIES AT THE

INSTITUTE OF LONDON UNDERWRITERS, ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas]

____________________

Before

Coffin and Campbell, Senior Circuit Judges,

_____________________

and DiClerico,* Chief Judge.

___________

____________________

Paul E. Calvesbert,
____________________

with

whom

Jose E. Alfaro-Delgado
________________________

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

_________________________________
Edward M. Cuddy, III, with whom
_____________________

James W. Carbin, Christopher

________________ ___________

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

________
_____________

____________________

December 30, 1996

____________________

____________________

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

CAMPBELL, Senior Circuit Judge.

____________________

Plaintiffs are two

non-vessel operating common carriers and an insurance carrier

who have sued in

the district court to recover

insurance on

account of damages allegedly suffered from the loss overboard

of several cargo containers that

were being carried by barge

from Jacksonville,

Florida, to San

Juan, Puerto Rico.

barge and tug were

operated by Ocean Line of

The

North Florida,

Inc.

("Ocean Line"), a

now defunct

shipping company.

The

principal defendants, from whom plaintiffs seek recovery, are

the

issuers

Ocean Line.

of an

open marine

cargo insurance

policy for

The case was tried in the United States District

Court for the

District of

judgment

the

for

Puerto Rico.

defendant insurers

The court

and

entered

plaintiffs

have

appealed.

We

affirm the

that the findings

Opinion

correct.

the

same

court's

and

are satisfied

not clearly erroneous,

legal

This being so

ground

We

of the district court, as set forth in its

and Order, are

conclusions

judgment below.

analysis

therein

own opinion.

are

we see no need to go

comprehensively covered

and that its

in

materially

over in detail

the

district

Instead, we limit ourselves to a brief

discussion of the controlling issues.

In

their direct action

on the

have sought to establish

that

of

from shippers

affirmative requests

policy, plaintiffs

notwithstanding the absence

that their

goods be

-3-

insured

the

policy's

coverage

was

"automatically"

available to all

shippers.

In support of

plaintiffs offered evidence at trial

this proposition,

of a "custom and usage"

in the Puerto Rico-United States trade for ocean carriers

to

provide insurance automatically up to certain limits, without

shipper having

time of

to affirmatively

entrusting his

goods to

however, sharply disputed

court

found, on

such custom

finding.

custom and

and

The

court also

usage evidence,

the carrier.

We

at the

Defendants,

this contention, and the

the conflicting

usage.

request coverage

district

proofs, that there

see

no clear

expressed

such as

error

doubts as

it was,

to

was no

in

that

whether

could override

Ocean Line's announced policies on the matter.

Plaintiffs argue that, apart from custom and usage,

coverage is manifest from the language of the

They

disparage as immaterial

and its

bills of

to

obtain

exclusively

Ocean Line's published tariffs

lading, which contained

requiring shippers to first

it.

policy itself.

specific language

request insurance if they wished

Instead,

plaintiffs

on the insurance

urge

us

policy itself.

to

rely

But, like the

district court, we find little support in the policy language

for plaintiffs'

insurance

position.

policy

The definition of

includes

companies,

"and/or for

insure."

Express

Ocean

whom

Line

they received

shipper's

-4-

instructions

assured in the

and

associated

instructions to

to

insure

are

lacking here,1 and

infer that

bills

that

no reliable basis

such instructions

of lading

explicit

we see

were given.

specifically call

instructions if

from which

The tariffs

for shippers

they wish insurance.

to

and

to provide

It

is true

one section of the tariffs indicates that "the rates in

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

that a

shipper would

(i.e. with

Ocean

have been

Line to

pay

entitled to free

the premium),

but

insurance

disagree

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

requested, and the

cargo value

bills of lading provide.

that all

the

the tariffs

be automatically insured;

policy definition of assureds

opposite,

as does

the

evidence

we say,

district

we find

court's

no

of Ocean

indication of

findings

and

factual

appear well-supported on this record.

the court that plaintiffs

clear

to the

suggests quite

Line's

practices and methods for paying premiums prior to

As

and

Nothing in the policy itself states

shipments are to

contrary, the

stated, as

own

the loss.

error in

the

conclusions, which

We can only agree with

have failed to establish

that the

____________________

1.

Transcaribe tendered

the district
shipper's
expressing

pro forma

bills of lading

court proceedings which it

requests
doubts as

for

insurance.

to these

late in

says manifested the

The

district

court,

documents' authenticity

credibility, found this late-filed evidence

to establish that proper requests were made.

and

was insufficient
Infra.
_____

-5-

cargo,

for the loss of which

they are claiming, was in fact

insured under the policy in question.2

As

trial

noted in

Note 1,

there was

a dispute

at the

concerning the weight to be given to certain pro forma

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

Transcaribe.

coverage

Transcaribe argued

had,

in

fact,

been

documentary evidence was far from

this respect.

is

that these

requested,

erroneous

although

being clear or uniform

the

in

The district court's disposition of this issue

explained in its Opinion and Order.

evaluation

indicated that

and handling

and was

of

within its

circumstances of this case.

Affirmed.
________

The district court's

this evidence

was not

reasonable discretion

clearly

in the

____________________

2.

The plaintiffs call

Puerto

Rico cases

and

our attention to
to one

Lauder International, Inc.

____________________________
Inc., 923
____

F.2d

238 (2d

Second

several translated
Circuit case,

Estee
_____

v. World Wide Marine Service,

____________________________

Cir.

1991).

We

agree

with

the

defendant insurers that these

cases are either irrelevant to

the

this

contested

issues

in

case

or

distinguishable and thus are not dispositive.

-6-

are

readily