
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1280                   OLYMPO TRANSPORT COMPANY OF PUERTO RICO, ET AL.,                               Plaintiffs, Appellants,                                          v.                     CERTAIN INSURANCE COMPANIES AT THE INSTITUTE                           OF LONDON UNDERWRITERS, ET AL.,                                Defendants, Appellees.                                 ____________________                                        ERRATA               The  published opinion of this  Court issued on December 30,          1996, is amended as follows:               Cover sheet:  delete the [Hon. Carmen Consuelo Cerezo,  U.S.                                                                       ____          District Judge] and insert the [Hon. Salvador E. Casellas] in its          ______________          place.                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1280                 OLYMPO TRANSPORT COMPANY OF PUERTO RICO, INC. ET AL,                               Plaintiffs, Appellants,                                          v.                         CERTAIN INSURANCE COMPANIES AT THE                       INSTITUTE OF LONDON UNDERWRITERS, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                             [Hon. Salvador E. Casellas]                                 ____________________                                        Before                      Coffin and Campbell, Senior Circuit Judges,                                           _____________________                             and DiClerico,* Chief Judge.                                             ___________                                 ____________________            Paul  E.  Calvesbert,   with  whom  Jose  E.  Alfaro-Delgado   and            ____________________                ________________________        Calvesbert, Alfaro & Lopez-Conway were on brief for appellants.        _________________________________            Edward M.  Cuddy, III, with whom  James W.  Carbin, Christopher B.            _____________________             ________________  ______________        Turcotte, and Kroll & Tract were on brief for appellees.        ________      _____________                                 ____________________                                  December 30, 1996                                 ____________________                                    ____________________        *Of the District of New Hampshire, sitting by designation.                      CAMPBELL, Senior Circuit Judge.  Plaintiffs are two                                ____________________            non-vessel operating common carriers and an insurance carrier            who have sued in  the district court to recover  insurance on            account of damages allegedly suffered from the loss overboard            of several cargo containers that  were being carried by barge            from Jacksonville,  Florida, to San  Juan, Puerto Rico.   The            barge and tug were  operated by Ocean Line of  North Florida,            Inc.  ("Ocean Line"), a  now defunct  shipping company.   The            principal defendants, from whom plaintiffs seek recovery, are            the  issuers  of an  open marine  cargo insurance  policy for            Ocean Line.  The case was tried in the United States District            Court for the  District of  Puerto Rico.   The court  entered            judgment  for  the  defendant insurers  and  plaintiffs  have            appealed.                      We  affirm the  judgment below.   We  are satisfied            that the findings  of the district court, as set forth in its            Opinion  and Order, are  not clearly erroneous,  and that its            conclusions  and   legal  analysis  therein   are  materially            correct.  This being so  we see no need to go  over in detail            the  same  ground  comprehensively covered  in  the  district            court's  own opinion.  Instead, we limit ourselves to a brief            discussion of the controlling issues.                      In  their direct action  on the  policy, plaintiffs            have sought to establish  that    notwithstanding the absence            of  affirmative requests  from shippers  that their  goods be                                         -3-            insured       the   policy's  coverage   was  "automatically"            available to all  shippers.  In support of  this proposition,            plaintiffs offered evidence at trial  of a "custom and usage"            in the Puerto Rico-United States trade for ocean carriers  to            provide insurance automatically up to certain limits, without            a  shipper having  to affirmatively  request coverage  at the            time of  entrusting his  goods to  the carrier.   Defendants,            however, sharply disputed  this contention, and the  district            court  found, on  the conflicting  proofs, that there  was no            such custom  and  usage.   We  see  no clear  error  in  that            finding.   The  court also  expressed  doubts as  to  whether            custom and  usage evidence,  such as  it was,  could override            Ocean Line's announced policies on the matter.                      Plaintiffs argue that, apart from custom and usage,            coverage is manifest from the language of the  policy itself.            They  disparage as immaterial  Ocean Line's published tariffs            and its  bills of  lading, which contained  specific language            requiring shippers to first  request insurance if they wished            to  obtain  it.     Instead,  plaintiffs  urge  us   to  rely            exclusively  on the insurance  policy itself.   But, like the            district court, we find little support in the policy language            for plaintiffs'  position.  The definition of  assured in the            insurance  policy   includes   Ocean  Line   and   associated            companies,  "and/or for  whom  they received  instructions to            insure."    Express  shipper's  instructions  to  insure  are                                         -4-            lacking here,1 and  we see  no reliable basis  from which  to            infer that  such instructions  were given.   The tariffs  and            bills  of lading  specifically call  for shippers  to provide            explicit  instructions if  they wish insurance.   It  is true            that  one section of the tariffs indicates that "the rates in            this tariff include insurance," and the parties seem to agree            that a  shipper would  have been  entitled to free  insurance            (i.e. with  Ocean  Line to  pay  the premium),  but  disagree            whether the free insurance was "automatic" or had first to be            requested, and the  cargo value  stated, as  the tariffs  and            bills of lading provide.  Nothing in the policy itself states            that all  shipments are to  be automatically insured;  to the            contrary, the  policy definition of assureds   suggests quite            the  opposite,  as does  the  evidence  of Ocean  Line's  own            practices and methods for paying premiums prior to  the loss.            As  we say,  we find  no  indication of  clear  error in  the            district  court's  findings  and  factual  conclusions, which            appear well-supported on this record.  We can only agree with            the court that plaintiffs  have failed to establish  that the                                            ____________________            1.  Transcaribe tendered  pro forma  bills of lading  late in            the district  court proceedings which it  says manifested the            shipper's  requests  for  insurance.    The  district  court,            expressing  doubts as  to these  documents' authenticity  and            credibility, found this late-filed evidence  was insufficient            to establish that proper requests were made.  Infra.                                                          _____                                         -5-            cargo,  for the loss of which  they are claiming, was in fact            insured under the policy in question.2                      As  noted in  Note 1,  there was  a dispute  at the            trial  concerning the weight to be given to certain pro forma            bills of lading submitted as evidence very late in the day by            Transcaribe.   Transcaribe argued  that these  indicated that            coverage  had,   in  fact,   been  requested,   although  the            documentary evidence was far from  being clear or uniform  in            this respect.  The district court's disposition of this issue            is  explained in its Opinion and Order.  The district court's            evaluation  and handling  of  this evidence  was not  clearly            erroneous  and was  within its  reasonable discretion  in the            circumstances of this case.                      Affirmed.                      ________                                            ____________________            2.  The plaintiffs call  our attention to  several translated            Puerto  Rico cases  and  to one  Second  Circuit case,  Estee                                                                    _____            Lauder  International,  Inc.  v. World  Wide  Marine Service,            ____________________________     ____________________________            Inc., 923  F.2d  238 (2d  Cir.  1991).   We  agree  with  the            ____            defendant insurers that these  cases are either irrelevant to            the   contested  issues   in   this  case   or  are   readily            distinguishable and thus are not dispositive.                                         -6-
