     Case: 09-30549        Document: 00511567478              Page: 1       Date Filed: 08/10/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                                        FILED
                                                                                     August 10, 2011

                                            No. 09-30549                              Lyle W. Cayce
                                                                                           Clerk

STEPHEN MARSHALL GABARICK, on behalf of himself and all others
similarly situated; Et Al,

                                                          Plaintiffs
v.

LAURIN MARITIME (AMERICA) INC.; WHITEFIN SHIPPING COMPANY
LIMITED,

                                                          Defendants – Appellants

v.

D.R.D. TOWING COMPANY, LLC,

                                                          Defendants – Appellee

------------------------------------------------------------------------------------------------------------
AUSTIN SICARD; Et Al,

                                                          Plaintiff

v.

LAURIN MARITIME (AMERICA) INC.; WHITEFIN SHIPPING COMPANY
LIMITED,

                                                          Defendants – Appellants

v.

D.R.D. TOWING COMPANY, LLC,
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                                             No. 09-30549

                                                          Defendants – Appellee
------------------------------------------------------------------------------------------------------------
IN RE: IN THE MATTER OF THE COMPLAINT OF WHITEFIN SHIPPING
COMPANY LIMITED, OWNER AND MANAGING OWNER OF M/V
TINTOMARA, LAURIN MARITIME AB AND ANGLO-ATLANTIC
STEAMSHIP LIMITED FOR EXONERATION FROM OR LIMITATION OF
LIABILITY

WHITEFIN SHIPPING COMPANY LIMITED, As owner and Managing
owner of the M/V Tintomara, petitioning for exoneration from or Limitation of
Liability; LAURIN MARITIME (AMERICA) INC., As owner and Managing
owner of the M/V Tintomara, petitioning for exoneration from or Limitation of
Liability; LAURIN MARITIME AB; ANGLO-ATLANTIC STEAMSHIP
LIMITED

                                                          Petitioners – Appellants

v.

D.R.D. TOWING COMPANY, LLC

                                                          Claimant – Appellee
------------------------------------------------------------------------------------------------------------
GEORGE C. MCGEE; ET AL

                                                          Plaintiffs

v.

LAURIN MARITIME (AMERICA) INC.; WHITEFIN SHIPPING COMPANY
LIMITED

                                                          Defendants – Appellants

v.

D.R.D. TOWING COMPANY, LLC

                                                          Defendant – Appellee
------------------------------------------------------------------------------------------------------------



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                                             No. 09-30549

BERNADETTE GLOVER, on behalf of herself and all others similarly
situated
                                  Plaintiff

v.

LAURIN MARITIME (AMERICA) INC.; WHITEFIN SHIPPING COMPANY
LIMITED

                                                          Defendants – Appellants

v.

D.R.D. TOWING COMPANY, LLC

                                                          Defendant – Appellee
------------------------------------------------------------------------------------------------------------
IN RE: IN THE MATTER OF THE COMPLAINT OF AMERICAN
COMMERCIAL LINES LLC, OWNER OF BARGE DM-932 FOR
EXONERATION FROM OR LIMITATION OF LIABILITY

AMERICAN COMMERCIAL LINES LLC, As Owner of Barge DM-932,
Praying for Exoneration from or Limitation of Liability

                                                          Petitioner – Appellant

v.

LAURIN MARITIME AB; WHITEFIN SHIPPING COMPANY LIMITED;
ANGLO-ATLANTIC STEAMSHIP LIMITED; LAURIN MARITIME
(AMERICAN) INC.

                                                          Movants – Appellants

v.

CSILLA FEKETE; ET AL

                                                          Defendants
------------------------------------------------------------------------------------------------------------



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                                             No. 09-30549

JEFFERSON MAGEE, Individually and on behalf of all others similarly
situated; ET AL

                                                          Plaintiffs

v.

WHITEFIN SHIPPING COMPANY LIMITED; LAURIN MARITIME AB

                                                          Defendants – Appellants

v.

D.R.D. TOWING COMPANY LLC

                                                          Defendant – Appellee
------------------------------------------------------------------------------------------------------------
JAMES ROUSSELL; ET AL

                                                          Plaintiffs

v.

LAURIN MARITIME (AMERICA) INC.; WHITEFIN SHIPPING COMPANY
LIMITED

                                                          Defendants – Appellants

v.

D.R.D. TOWING COMPANY, LLC

                                                          Defendants – Appellee
------------------------------------------------------------------------------------------------------------
JAMES JOSEPH, on behalf of himself and all others similarly situated

                                                          Plaintiff

v.




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                                             No. 09-30549

LAURIN MARITIME (AMERICA) INC.; WHITEFIN SHIPPING COMPANY
LIMITED

                                                          Defendants – Appellants

v.

D.R.D. TOWING COMPANY, LLC

                                                           Defendants – Appellee
------------------------------------------------------------------------------------------------------------
VINCENT GRILLO, Individually and on behalf of all others similarly
situated; ET AL

                                                          Plaintiffs

v.

D.R.D. TOWING COMPANY LLC

                                                          Defendant – Appellee

v.

WHITEFIN SHIPPING COMPANY LIMITED; LAURIN MARITIME AB

                                                          Defendants – Appellants
------------------------------------------------------------------------------------------------------------
INDEMNITY INSURANCE COMPANY OF NORTH AMERICA

                                                          Plaintiff – Appellee

v.

AMERICAN COMMERCIAL LINES, LLC; AMERICAN COMMERCIAL
LINES, INC.; LAURIN MARITIME AB; LAURIN MARITIME (AMERICA)
INC.

                                                          Defendants – Appellants

v.


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                                             No. 09-30549

D.R.D. TOWING COMPANY, LLC; D.R.D TOWING GROUP, LLC; WAITS,
EMMETT & POPP, LLC; DAIGLE, FISSE & KESSENICH

                                                          Defendants – Appellees
------------------------------------------------------------------------------------------------------------
IN RE: IN THE MATTER OF THE COMPLAINT OF D.R.D. TOWING
COMPANY, INC., OWNER PRO HAC VICE OR ALLEGED OWNER PRO
HAC VICE OF THE M/V MEL OLIVER, FOR EXONERATION FROM OR
LIMITATION OF LIABILITY

D.R.D. TOWING COMPANY, INC., as owner pro hac vice or alleged owner
pro hac vice of the M/V Mel Oliver

                                                          Petitioner – Appellee

v.

LAURIN MARITIME AB; WHITEFIN SHIPPING COMPANY LIMITED;
ANGLO-ATLANTIC STEAMSHIP LIMITED; LAURIN MARITIME
(AMERICA) INC.

                                                          Claimants – Appellants
------------------------------------------------------------------------------------------------------------
DONNETTA CHERAMIE, individually and on behalf of all others similarly
situated

                                                          Plaintiff

v.

D.R.D. TOWING COMPANY, LLC

                                                          Defendant – Appellee

v.

WHITEFIN SHIPPING COMPANY LIMITED; LAURIN MARITIME AB

                                                          Defendants – Appellants
------------------------------------------------------------------------------------------------------------
TRI NATIVE CONTRACTORS, INC.; ET AL


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                                             No. 09-30549

                                                          Plaintiffs

v.

D.R.D. TOWING COMPANY, LLC

                                                          Defendant – Appellee

v.

WHITEFIN SHIPPING COMPANY LIMITED; LAURIN MARITIME AB

                                                          Defendants – Appellants
------------------------------------------------------------------------------------------------------------
IN RE: IN THE MATTER OF THE COMPLAINT OF AMERICAN
COMMERCIAL, LLC, OWNER OF M/V MEL OLIVER, FOR
EXONERATION FROM OR LIMITATION OF LIABILITY

AMERICAN COMMERCIAL LINES, LLC, as owner of the M/V Mel Oliver
praying for exoneration from or limitation of liability

                                                          Petitioner – Appellant

v.

LAURIN MARITIME (AMERICA) INC.; LAURIN MARITIME AB;
WHITEFIN SHIPPING CO. LIMITED; ANGLO-ATLANTIC STEAMSHIP
LIMITED

                                                          Appellants

v.

JAHDA MUHAMMAD

                                                          Defendant
------------------------------------------------------------------------------------------------------------
KEVIN A. PETTIGREW

                                                          Plaintiff



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                                             No. 09-30549

v.

D.R.D. TOWING COMPANY, L.L.C.

                                                          Defendant – Appellee

v.

LAURIN MARITIME (AMERICA) INC.; LAURIN MARITIME AB;
WHITEFIN SHIPPING CO. LIMITED; ANGLO-ATLANTIC STEAMSHIP
LIMITED

                                                          Movants – Appellants

                                         __________________

                                            No. 09-30809
                                         __________________

STEPHEN MARSHALL GABARICK, on behalf of himself and all others
similarly situated; ET AL

                                                          Plaintiffs

v.

LAURIN MARITIME (AMERICA) INC; ET AL

                                                          Defendants

------------------------------------------------------------------------------------------------------------

INDEMNITY INSURANCE COMPANY OF NORTH AMERICA

                                                          Plaintiff – Appellee

v.

D.R.D. TOWING COMPANY, L.L.C.; AMERICAN COMMERCIAL LINES
L.L.C.; AMERICAN COMMERCIAL LINES, INC.; ANGLO-ATLANTIC



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                                  No. 09-30549

STEAMSHIP LIMITED; LAURIN MARITIME AB; LAURIN MARITIME
(AMERICA), INC.

                                               Defendants - Appellants

v.

WHITEFIN SHIPPING COMPANY LIMITED

                                               Appellant




                 Appeal from the United States District Court
                     for the Eastern District of Louisiana


Before HIGGINBOTHAM, OWEN, and HAYNES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
        The M/V TINTOMARA, an ocean-going tanker, collided with the barge
DM-932, in the tow of the M/V MEL OLIVER, splitting the barge in half and
spilling its cargo of oil into the Mississippi River. Following the filing of
numerous lawsuits, including personal injury claims by the crew members and
class actions by fishermen, the primary insurer filed an interpleader action,
depositing its policy limits with the court.
        We are asked to review allocations of interpleader funds as well as the
district court’s finding that the maritime insurance policy’s liability limit
included defense costs. We affirm the district court’s decision that defense costs
erode policy limits but are persuaded that its orders allocating court-held funds
among claimants were tentative and produced no appealable order.
                                        I.
        The TINTOMARA was owned and operated by Laurin Maritime (America),
Inc., Laurin Maritime AB, Whitefin Shipping Co. Limited, and Anglo-Atlantic

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                                        No. 09-30549

Steamship Limited (collectively, “Laurin Maritime”). American Commercial
Lines , LLC owned the tug, barge, and fuel oil. D.R.D. Towing, LLC provided the
crew for the tug boat pursuant to a bareboat charter.
       The towing company was covered by a protection and indemnity policy
issued by Indemnity Insurance Company of North America (“IINA”). This policy
contained the SP-23 Form, with some modifications, and provided a $1 million
limit of liability for any single occurrence, with a $15,000 deductible. After the
collision, the towing company and the barge owner1 demanded that IINA defend
and indemnify them.             IINA responded with an interpleader action for
determination of its rights and obligations under the policy. Around the time of
its filing, IINA deposited $985,000 into the registry of the court, which was its
full liability limit less the deductible.
       The barge owner moved to dismiss under Federal Rules of Civil Procedure
Rule 12(c), arguing that IINA could not avoid its obligation to defend by
depositing its policy limits with the court. The district court denied the motion
to dismiss the interpleader action and held that IINA had a duty to reimburse
defense costs but no duty to defend.
       The towing company and the barge owner then sought release of funds to
recover defense costs. IINA responded that defense costs were included within
the policy limits—that is, monies paid for defense costs would come from funds
capped by the policy limits. The district court agreed and found that defense
costs eroded the limit of liability.2 Further, the court granted the towing
company’s motion for release of funds and denied the barge owner’s motion.




       1
         The barge owner originally acted in this suit as an additional insured under the P&I
policy. On appeal, the barge owner abandons its additional insured status and only asserts
its rights as a claimant under the Louisiana Direct Action Statute.
       2
           Gabarick v. Laurin Maritime (America) Inc., 635 F. Supp. 2d 499 (E.D. La. 2009).

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                                       No. 09-30549

      The barge owner and Laurin Maritime timely filed notices of interlocutory
appeal under 28 U.S.C. § 1292(a)(3), challenging the district court’s decision that
defense costs eroded the liability limits and allocating interpleader funds. We
have jurisdiction over interlocutory appeals from orders that “determin[e] the
rights and liabilities of the parties to admiralty cases.”
      Shortly after filing its notice of appeal, the barge owner sought and
obtained a Rule 54(b) certificate covering the same order it had previously
appealed.       The parties then appealed the 54(b) judgment, which was
consolidated with the interlocutory appeals.3
                                              II.
      IINA questions this court’s jurisdiction, arguing in part that the
§ 1292(a)(3) appeals notice divested the district court of its authority to enter a
Rule 54(b) certification.        We do as a matter of course examine our own
jurisdiction.4
      The barge owner and Laurin Maritime both appealed the order before the
district court entered a Rule 54(b) final judgment. Although the filing of a notice
of appeal ordinarily divests the district court of jurisdiction over those aspects
of the case involved in the appeal,5 the district court retains jurisdiction to enter
a Rule 54(b) certification.6 Therefore, we have jurisdiction under Rule 54(b).
      However, we are unpersuaded that there was a final ruling on the release
of funds. The district court did not permanently deny funds to the barge owner,


      3
        ACL (the barge owner) is the primary appellant on the defense costs erosion issue,
with DRD (the towing company) and Laurin Maritime joining ACL’s arguments. ACL’s second
attack upon the distribution of funds was not joined by DRD and was opposed by Laurin
Maritime.
      4
          Borne v. A&P Boat Rentals No. 4, Inc., 755 F.2d 1131, 1133 (5th Cir. 1985).
      5
          Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982).
      6
          See Swope v. Columbian Chems. Co., 281 F.3d 185, 191–92 (5th Cir. 2002).

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                                          No. 09-30549

but rather stated, “payment to [the barge owner] at this time would not be
equitable.”7       The allocation of funds is an ongoing matter the parties are
addressing with the district court.
       Before a district court grants a Rule 54(b) certificate, the court must
determine that the judgment is final “in the sense that it is ‘an ultimate
disposition of an individual claim.’”8 Here, the allocation of interpleader funds
was not an ultimate disposition, evidenced by the court’s implication that the
barge owner might later be entitled to some of the court-held funds. Although
the decision to certify is reviewed for abuse of discretion, we still must
“scrutinize the district court’s evaluation . . . so as to prevent piecemeal appeals
in cases which should be reviewed only as single units.”9 We decline to express
an opinion regarding the allocation or denial of funds. The tentative character
of the “ruling” is equally fatal to jurisdiction under § 1292(a)(3).
       The barge owner asks this court to confirm its status as a direct claimant
under the Louisiana Direct Action Statute, but the district court did not rule on
this claim in the appealed order. Therefore, we will not address this issue.10
                                                III.
       We review a district court’s interpretation of an insurance contract de
novo.11      “[I]n the absence of a specific and controlling federal rule,” the
interpretation of marine insurance policies is “to be determined by reference to



       7
           Gabarick, 635 F. Supp. 2d 499 at 513 (emphasis added).
       8
        Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 7 (1980) (quoting Sears, Roebuck
& Co. v. Mackey, 351 U.S. 427, 436 (1956)).
       9
        Id. at 10; see also Lockett v. General Finance Loan Co. of Downtown, 623 F.2d 1128,
1129 (5th Cir. 1980).
       10
            See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
       11
            Travelers Lloyds Ins. Co. v. Pac. Emp’rs. Ins. Co., 602 F.3d 677, 681 (5th Cir. 2010).

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                                         No. 09-30549

appropriate state law.”12 Here, there is no entrenched maritime law addressing
whether legal expenses are included within or in addition to a protection and
indemnity policy’s liability limit. However, marine insurance commentators
have recognized that defense costs are typically included within the P&I policy’s
liability limit.13 The Maritime Law Association of the United States instructs
that for P&I policies “[t]here is no coverage for legal expenses in excess of the
policy limits, such expenses being included within, and no[t] in addition to,
policy limits.”14 P&I policies do not ordinarily create a duty to defend15 and are
indemnity policies, not liability policies. With only a duty to pay covered claims
and no duty to defend, reimbursement of defense costs must be footed on the
indemnification, which is limited to the agreed upon policy limit.16


       12
            Albany Ins. Co. v. Kieu, 927 F.2d 882, 886 (5th Cir. 1991) (internal quotation marks
omitted).
       13
         See CHARLES M. DAVIS, MARITIME LAW DESKBOOK 575 (2010) (“Generally, costs, fees
and expenses of defending against insured claims is included in the limits of a P & I policy, at
least with respect to indemnity policies that include no separate duty of the insurer to provide
a defense.”); id. (noting that the SP-23 form is ambiguous with respect to defense costs when
the insurer, rather than the insured, employed the defense counsel); Stephen V. Rible, A
Juxtaposition of Hull and Protection & Indemnity Coverages, 83 TUL. L. REV. 1189, 1199 (2009)
(“Legal costs are a part of the policy limits included in the exhaustion of P&I policies.”).
       14
         Warren M. Faris & Mat M. Gray III, Costs of Defense, Notice and Settlement of Claim,
Assistance and Cooperation, in MARINE PROTECTION & INDEMNITY POLICY ANNOTATIONS
PROJECT 65, 65 (Simon Harter ed., 2001), available at http://www.mlaus.org/
archives/library/530a.pdf. The First Circuit has also held that language similar to the SP-23
unambiguously included defense costs in the policy limit. Geehan v. Trawler Arlington, Inc.,
547 F.2d 132 (1st Cir. 1976).
       15
         See DAVIS, supra note 13, at 574; William E. O’Neil, Insuring Contractual Indemnity
Agreements Under CGL, MGL, and P & I Policies, 21 TUL. MAR. L.J. 359, 373 (1997). As noted
above, the district court has found that the policy in dispute here did not provide a duty to
defend and the parties did not appeal that decision.
       16
          See DAVIS, supra note 13, at 574–75; cf. N. Am. Speciality Ins. Co. v. Royal Surplus
Lines Ins. Co., 541 F.3d 552, 559 (5th Cir. 2008) (noting that “[l]iability insurance policies
often have two components: defense and indemnity,” and when the policy limits only apply to
the indemnity section, the obligation to defend is not capped by the policy limits). When there
is no “defense” component of the insurance policy, the duty to defense must be encompassed

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                                            No. 09-30549

         Turning to Louisiana law, courts interpreting insurance contracts should
“seek to determine the parties’ common intent, as reflected by the words in the
policy.”17 Words used in the policy “must be given their generally prevailing
meaning.”18 “When those words are clear, explicit, and lead to no absurd
consequences, the contract must be interpreted within its four corners . . . .”19
         “A provision in an insurance contract is ambiguous if it is susceptible to
two or more reasonable interpretations or if the intent of the parties cannot be
ascertained from the language employed.”20 “If after applying the other general
rules of construction an ambiguity remains, the ambiguous contractual provision
is to be construed against the drafter, or, as originating in the insurance context,
in favor of the insured.”21 However, Louisiana’s presumption in favor of the
insured does not apply where the insured is a sophisticated commercial entity
that drafted the policy or used an agent to secure the desired policy provisions.22
         With regard to P&I policies, we have noted that the general law in
Louisiana is “for legal expenses incurred in defending a liability covered by the
policy to be treated as part of the overall claim. That claim [inclusive of legal
expenses] is limited by the amount insured in the primary policy.”23 Thus, the


within the indemnity provision and corresponding limit of liability.
         17
              Seacor Holdings, Inc. v. Commonwealth Ins. Co., 635 F.3d 675, 680 (5th Cir. 2011).
         18
              LA. CIV. CODE ANN. art. 2047.
         19
         Seacor, 635 F.3d at 680 (citing Peterson v. Schimek, 98-1712 (La. 3/2/99), 729 So. 2d
1024, 1031).
         20
              Six Flags, Inc. v. Westchester Surplus Lines Ins. Co., 565 F.3d 948, 955 (5th Cir.
2009).
         21
              La. Ins. Guar. Ass’n. v. Interstate Fire & Cas. Co., 630 So. 2d 759, 764 (La. 1994).
         22
              Six Flags, 565 F.3d at 958 (interpreting Louisiana law).
         23
         Exxon Corp. v. St. Paul Fire & Marine Insurance Company, 129 F.3d 781, 787 (5th
Cir. 1997) (internal quotation marks omitted) (alteration in original).

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                                   No. 09-30549

barge owner must present evidence that this contract should be treated
differently than traditional Louisiana P&I policies.
                                        IV.
      The towing company’s insurance contract sets forth three distinct but
related coverages: 1) the hull and machinery coverage (excluding collision
liability), 2) collision and towers liability, and 3) protection and indemnity
coverage. The collision and P&I policies are at issue here. For P&I coverage, the
contract is based on a standard maritime insurance form, SP-23, with some
modifications, known as manuscript provisions. One modification is the addition
of a collision and towers liability clause.
      The SP-23 Form provides coverage for “[c]osts, charges, and expenses,
reasonably incurred and paid by the Assured in defense against any liabilities
insured against hereunder in respect of the vessel named herein, subject to the
agreed deductibles applicable, and subject further to the conditions and
limitations hereinafter provided.” Under the conditions subsequently provided,
the policy states: “Liability hereunder in respect of any one accident or
occurrence is limited to the amount hereby insured.” Giving these words their
generally prevailing meanings, the policy provides coverage for the insured’s
defense subject to the conditions of the overall policy, including the liability
limit. There is no ambiguity in the SP-23 Form on the erosion of policy limits by
payment of defense costs.
                                        V.
      The barge owner urges the agreement is ambiguous, in part because of
language from the Collision and Towers Liability Clause, which was added as
a manuscript provision and is not part of the SP-23 Form. This clause reads:
      (a)   if the vessel hereby insured shall come into collision with any
            other vessel . . . or shall cause her tow to come into collision
            with any other vessel . . . and the Insured or the Surety, in
            consequence of the insured vessel being at fault, shall become

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                                           No. 09-30549

                liable to pay and shall pay . . . we, the Underwriters, will pay
                the Insured or the Surety, whichever shall have paid, such
                proportion of such sum or sum so paid provided always that
                our liability shall not exceed the limit of liability afforded
                under this policy;
      (b)       and in cases where the liability of the Vessel has been
                contested or proceedings have been taken to limit liability,
                with our consent in writing, we will also pay the costs which
                the Insured shall thereby incur or be compelled to pay.
In addition to these sections, the collision clause excludes coverage if the
insured’s liability arises from either personal injury claims or oil spills.
      The barge owner points to our decision in Exxon Corp. v. St. Paul Fire &
Marine Insurance Company, where we found that defense costs were not
included within the P&I liability limit in a policy with similar language.24
Exxon’s policy read:
      We will, subject to the reservations herein mentioned, pay to the
      Assured such proportion of the sum or sums so paid, for such loss,
      as our respective subscriptions bear to the policy value of the ship
      hereby insured, and in case the liability of the Assured has been
      contested, with the consent in writing of two-thirds of the
      Underwriters on the ship hereby insured in the amount, we will,
      subject to the conditions of the policy, also pay a like proportion of
      the costs which the Assured shall thereby become liable for and
      shall pay.25
The barge owner asserts that because its policy, like the one in Exxon, includes
the term “also pay,” the policy is at least ambiguous as to whether defense costs
are included within the liability limit. More likely, the argument continues,
“also pay” demands that defense costs be excluded from the regular liability
limit. The barge owner urges that the similarity in the language between this




      24
           129 F.3d 781 (5th Cir. 1997).
      25
           Id. at 787 (emphasis added).

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                                     No. 09-30549

clause and Exxon’s clause requires this court to find an ambiguity in the policy,
as we did in Exxon.
      This reasoning is flawed. First, Exxon involved a personal injury suit
based on inhalation of noxious fumes, not a collision.26 Therefore, the “also pay”
language must have been included in the P&I policy itself. By contrast, here,
the SP-23 Form and other P&I elements of the policy unambiguously include
defense costs within the liability limit. This leaves the barge owner’s contest
only applying to the collision clause’s “also pay” language, and that language
here will not carry the freight.
      The barge owner asserts in its brief that the collision clause “is
indisputably triggered in this case because the liability arises out of a collision
involving a towed vessel.” In a footnote, the barge owner then describes its
claims for loss of barge and cargo, for wreck removal, and cleanup expenses, as
well as numerous claims for property damage by commercial fishermen.
However, all of the claims mentioned would be excluded from the collision clause
coverage. The collision coverage refuses to indemnify the insured for damages
arising out of “removal or disposal of obstructions, wrecks or their cargoes under
statutory powers or otherwise pursuant to law;” “cargo or other property on or
the engagements of the Vessel;” “loss of life, personal injury or illness;” and “the
discharge, spillage, emission or leakage of oil, petroleum products, chemicals or
other substances of any kind or description whatsoever.” Further, loss or
damages to vessels owned by the insured are also excluded from collision
coverage. Therefore, all claims pointed to by the barge owner are excluded from
collision coverage, and any recovery must come under the standard P&I section
of the policy, not its collision clause.




      26
           Id. at 783.

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                                         No. 09-30549

       That the parties added a collision provision to the P&I section does not
necessarily indicate the collision coverage is subject to the benefits and
requirements of the other P&I coverages.27 Commentators, including one relied
upon by the barge owner, explain that a collision clause “is a separate contract
which provides coverage against certain liabilities to third parties.”28 Any
ambiguity created by the “also pays” language is restricted to the collision clause
and does not infect the main P&I provisions.
       Even if this policy were ambiguous, the barge owner would not
automatically be entitled to a presumption favoring its interpretation, as was the
case in Exxon. Again, Louisiana does not apply the presumption in favor of the
insured when a broker has negotiated the policy on the insured’s behalf. Both
the barge owner and IINA are sophisticated parties, and it is undisputed that
Marsh, an insurance broker, issued the policy. Although the barge owner now
implies that Marsh was acting as an agent for IINA, in the district court, the
towing company asserted that the policy at issue here “was a ‘manuscript’ or
‘specifically written’ policy that was prepared by [the towing company]’s broker,
Marsh.’”29 Given that the towing company arrived at its policy using a broker,
the presumption in favor of the insured does not apply.30



       27
          See Ins. Co. of N. Am. v. Board of Commissioners of the Port of New Orleans, 733 F.2d
1161, 1166 (5th Cir. 1984) (discussing marine insurance policies and noting that “[a]lthough
helpful, the label is not conclusive”).
       28
        See LESLIE J. BUGLASS, MARINE INSURANCE AND GENERAL AVERAGE IN THE UNITED
STATES 382 (emphasis added).
       29
         Memorandum by DRD Towing in Response to/opposition to Motion of ACL to Declare
Defense Costs Outside the Limits Under the IINA Primary Policy and to Release Funds to
ACL at 2, Gabarick et al v. Laurin Maritime (America) Inc. et al, No. 2:08-cv-04007-ILRL-KWR
(E.D. La. Jan. 19, 2009), ECF No. 575.
       30
         See Six Flags, 565 F.3d at 958 (noting that “the presumption does not apply where
the insured is a sophisticated commercial entity that itself drafts or utilizes its agent to secure
desired policy provisions”).

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  Case: 09-30549    Document: 00511567478      Page: 19   Date Filed: 08/10/2011



                                  No. 09-30549

      In sum, the barge owner’s assertions of ambiguity demand reliance upon
the collision clause, which is not only severable but also inapplicable because all
of the damages incurred are excluded from that coverage. Returning to the pure
P&I coverage, the policy is clear that defense costs were intended to be included
within the policy limits. This P&I policy is unambiguously written against the
backdrop of traditional principles of maritime law that defense costs erode P&I
limits of liability. It is evident that viewed objectively the parties expectations
were as we have today held. For want of jurisdiction, we decide nothing more
regarding allocation of the court-held funds. AFFIRMED in part; DISMISSED
in part.




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