   Case: 17-30424   Document: 00514348272    Page: 1   Date Filed: 02/15/2018




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

                              No. 17-30424                       FILED
                                                          February 15, 2018
                                                              Lyle W. Cayce
                                                                   Clerk
CONTINENTAL INSURANCE COMPANY,

                                        Plaintiff,
versus

L&L MARINE TRANSPORTATION, INCORPORATED,

                                        Defendant.

                                 * * * * *

P & I UNDERWRITERS, Subscribing to Policy Number B0507M13PP07280,

                                        Plaintiff–Appellee,
versus

ATLANTIC SPECIALTY INSURANCE COMPANY,

                                        Defendant–Appellant.



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




Before REAVLEY, SMITH, and OWEN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

     Three tugs were towing a barge, with one designated as the “lead” tug
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                                 No. 17-30424
and the other two as “assisting” tugs. One of the assisting tugs allided with a
bridge fender system and sank. An insurance policy on the lead tug covers
damage only to its “tow.” Accordingly, we decide the meaning of “tow” for pur-
poses of that insurance contract and whether the assisting tug was the “tow”
of the lead tug. The district court held that the assisting tug was the “tow”
because of a tort principle known as the “dominant mind” doctrine. We reverse
and render.

                                        I.
      Three tugs—the M/V MISS DOROTHY, the M/V ANGELA RAE, and the
M/V FREEDOM—were traversing the Mississippi River with a barge,
FSB 101. The MISS DOROTHY allided with a portion of a bridge fender
system and sank, resulting in a total loss. Accordingly, its insurers, Contin-
ental Insurance Company (“Continental”), filed a complaint against the
ANGELA RAE’s owners, L&L Marine Transportation, Incorporated (“L&L”).
According to Continental’s complaint,
      At the time of the allision, the M/V MISS DOROTHY was assisting the
      M/V ANGELA RAE, and the M/V FREEDOM, with the towage of FSB
      101 . . . . Both the M/V ANGELA RAE and M/V FREEDOM were posi-
      tioned behind FSB 101, pushing it down the river, and the M/V MISS
      DOROTHY was positioned at the head of FSB 101.
Most importantly to the present dispute, Continental alleged that “[t]he M/V
ANGELA RAE was the lead tug and was responsible for coordination of the
tow.” Continental further averred that the ANGELA RAE was negligent in
several ways, including “failure to keep a proper look out; failure to properly
navigate around the Sunshine Bridge fender system; [and] failure to chart and
plan a proper and safe route.”

      Both Atlantic Specialty Insurance Company (“Atlantic Specialty”) and
P & I Underwriters (“P & I”) insured the ANGELA RAE. This is a dispute

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                                    No. 17-30424
between them regarding whose policy covers the incident. 1 Atlantic Specialty
is the Hull & Machinery insurer, while P & I provides Protection and Indem-
nity Insurance. Following the above complaint, Atlantic Specialty denied that
its policy covered any liability for the MISS DOROTHY’s allision and sinking.
Accordingly, P & I filed a complaint against Atlantic Specialty, claiming that
the Atlantic Specialty policy did so cover. P & I’s coverage complaint was ini-
tially consolidated with Continental’s tort suit against L&L, then severed by
joint motion.

      The parties cross-moved for summary judgment, each alleging that the
other’s policy covered any liability for the loss of the MISS DOROTHY. As
relevant here, Atlantic Specialty’s policy insures the ANGELA RAE as follows:
    [I]f the Vessel hereby insured shall come into collision with any other
    vessel, craft, or structure, floating or otherwise (including her tow); or
    shall strand her tow or shall cause her tow to come into collision with
    any other vessel, craft, or structure, floating or otherwise, or shall cause
    any other loss or damage to her tow or to the freight thereof or to the
    property on board, and the Assured, or the Surety, in consequence of
    the insured Vessel being at fault, shall become liable to pay and shall
    pay by way of damages to any other person or persons any sum or sums
    we, the Underwriters, will pay.
Essentially, the Atlantic Specialty policy covers the following situations:
(1) the ANGELA RAE collides with something else, (2) the ANGELA RAE
strands her tow, (3) the ANGELA RAE causes her tow to come into collision
with anything else, or (4) the ANGELA RAE causes any damage to her tow or
to her tow’s freight. As Atlantic Specialty maintains, none of those situations
occurred. The ANGELA RAE never collided with anything, nor was her tow
stranded, subject to collision, or damaged in any way.


      1  As an initial matter, P & I moved for partial summary judgment, insisting that
Atlantic Specialty had a duty to defend the insured, L&L. The district court denied that
motion in part, reasoning that the Atlantic Specialty Hull & Machinery policy was not a
defense policy and created no duty to defend. P & I does not raise that issue on appeal.
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                                 No. 17-30424
      Conversely, P & I’s policy is much broader, indemnifying L&L for “[l]ia-
bility for loss of or damage to any other vessel or craft, or to property on such
other vessel or craft . . . provided such liability does not arise by reason of a
contract made by the assured.” Yet P & I is suing because its policy covers only
situations that Atlantic Specialty’s does not: “Nonwithstanding anything to
the contrary contained in this policy, no liability attaches to the Assurer [f]or
any loss, damage, or expense which would be payable under the terms of the
{Response} form of policy on hull and machinery.” It is undisputed that, if
Atlantic Specialty’s policy does not cover this incident, then P & I’s does.

      Accordingly, P & I contends that the loss of the MISS DOROTHY falls
within the third situation covered by Atlantic Specialty’s policy, i.e. that the
ANGELA RAE caused her “tow” to come into collision with the fender system.
P & I reasons that the MISS DOROTHY was the “tow” of the ANGELA RAE—
despite being itself a tugboat—because the ANGELA RAE was allegedly the
lead tug. The district court agreed with P & I and granted it summary judg-
ment. Atlantic Specialty appeals.

                                       II.
      As a preliminary matter, the parties dispute whether the so-called
“Eight Corners” rule governs this case. Under it, courts “assess whether there
is a duty to defend by applying the allegations of the compliant to the under-
lying policy without resort to extrinsic evidence.”        Martco Ltd. P’ship v.
Wellons, Inc., 588 F.3d 864, 872 (5th Cir. 2009). Put another way, the court
determines whether an insurance policy covers an incident by looking to the
allegations in the underlying suit’s complaint. See id. P & I has consistently
maintained, before the district court and on appeal, that the rule applies.

      For the first time on appeal—and only in its reply brief—Atlantic Spe-
cialty disputes the application of the rule.     Accordingly, the district court
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                                       No. 17-30424
stated, “The parties do not dispute [that] the allegations in the complaint con-
trol which policy is liable for defense costs and coverage.” Thus, Atlantic
Specialty has waived any quarrel over the applicability of the Eight Corners
rule and the controlling nature of Continental’s complaint. 2 Accordingly, we
assume the facts in Continental’s complaint—the ANGELA RAE was the lead
tug; the MISS DOROTHY was assisting the ANGELA RAE with the towage of
FSB 101; and the ANGELA RAE negligently caused the MISS DOROTHY’s
allision.

                                             III.
       With these facts assumed, we turn to the central issue: Was the MISS
DOROTHY the “tow” of the ANGELA RAE for purposes of Atlantic Specialty’s
policy? Both sides agree that Louisiana law controls. 3 Under Louisiana law,
the interpretation of insurance policies is governed by general rules of contract
interpretation. Cadwallader v. Allstate Ins. Co., 848 So. 2d 577, 580 (La. 2003).
Accordingly, courts “should seek to determine the parties’ common intent, as
reflected by the words in the policy.” Gabarick v. Laurin Maritime (Am.), Inc.,
650 F.3d 545, 553 (5th Cir. 2011) (internal quotations omitted). “The words of
a contract must be given their generally prevailing meaning” or their technical


       2  See Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Disc. Ctrs., Inc., 200 F.3d 307,
316–17 (5th Cir. 2000) (“It is a bedrock principle of appellate review that claims raised for
the first time on appeal will not be considered.”). Even looking past waiver, it is not clear
why this disagreement makes an ounce of difference here. The relevant facts are that the
ANGELA RAE and the MISS DOROTHY were chartered to tow the barge FSB 101 while the
ANGELA RAE was the lead tug. Nowhere does Atlantic Specialty dispute that the ANGELA
RAE was the lead tug; all that it contests is the legal import of that fact. According to the
district court and P & I, the assisting tugs are the “tow” of the lead tug; conversely, Atlantic
Specialty maintains that the assisting tugs are still tugs, not tows. Thus, whether the Eight
Corners analysis appertains is irrelevant—we need only ask how to read the word “tow” in
Atlantic Specialty’s policy.
       3  See Richard v. Dolphin Drilling Ltd., 832 F.3d 246, 248 (5th Cir. 2016); Cal-Dive
Int’l, Inc. v. Seabright Ins. Co., 627 F.3d 110, 113 (5th Cir. 2010) (“The interpretation of a
marine policy of insurance is governed by relevant state law.”).
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meaning “when the contract involves a technical matter.” 4 If the words of the
contract “are unambiguous and the parties’ intent is clear, the insurance
contract will be enforced as written.” 5

                                               A.
       Because we look for the “plain, ordinary and generally prevailing mean-
ing” or “technical meaning” of the word “tow,” we begin with the dictionary.
See Cadwallader, 848 So. 2d at 580–81. Dictionary definitions almost uni-
formly point toward the following definition of “tow”: a vessel that is being
provided extra motive power from another vessel by being pushed or pulled.
For example, Black’s Law Dictionary defines “towage” as “[t]he act or service
of towing ships . . . by means of a small vessel called a tug.” 6 That indicates
that the “tug” is actively “towing” or exerting some force on the “tow.” Sup-
porting this, Merriam-Webster defines the verb “tow” as “to draw or pull along
behind” or “to move in tow.” 7 The Oxford English Dictionary agrees, defining
the verb “tow” as “[t]o draw by force; to pull, drag.” 8 Furthermore, Oxford
defines the noun “tow” as “[t]he action of towing or fact of being towed” or as
“[a] vessel taken in tow; also, string of boats, barges, etc. being towed. Hence
also, a string of barges that is pushed rather than pulled.” 9

       4LA. CIV. CODE ANN. art. 2047; see also Naquin v. Elevating Boats, L.L.C., 817 F.3d
235, 238 (5th Cir. 2016); Cadwallader, 848 So. 2d at 580.
       5Naquin, 817 F.3d at 238–39 (quoting Doerr v. Mobil Oil Corp., 774 So. 2d 119, 124
(La. 2000)); see also LA. CIV. CODE ANN. art. 2046.
       6   Towage, BLACK’S LAW DICTIONARY 1719 (10th ed. 2014).
       7    Tow,      MERRIAM-WEBSTER               (Online       ed.),     https://www.merriam-
webster.com/dictionary/tow.
       8     Tow,       OXFORD       ENGLISH    DICTIONARY       (Online                     ed.),
http://www.oed.com/view/Entry/203995?rsk ey=nHWNmf&result=7#eid.
       9      Tow,        OXFORD         ENGLISH         DICTIONARY          (Online        ed.),
http://www.oed.com/view/Entry/203993?rsk ey=nH WNmf&result=5&isAdvanced=false#eid.
This dictionary also includes a possibility that “[a] vessel that tows; a tug” is also a defined
as a “tow.” We discount this because it plainly cannot be the meaning of “tow” in the
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       Caselaw and treatises support those definitions. The Supreme Court
explained tows and towage in Stevens v. The White City, 285 U.S. 195, 200
(1932):
    The supplying of power by a vessel, usually one propelled by steam, to
    tow or draw another is towage. Many vessels, such as barges and canal
    boats, have no power of their own and are built with a view to receiving
    their propelling force from other sources. And vessels having motive
    power often employ auxiliary power to assist them in moving about
    harbors and docks.[ 10]
       Fifth Circuit precedent accords with this notion. In Mississippi Valley
Barge Line Co. v. Indian Towing Co., 232 F.2d 750, 753 n.5 (5th Cir. 1956), the
court noted that “[towage] is the employment of one vessel to expedite the
voyage of another.” Finally, at least one treatise defines “[t]owage” as “a ser-
vice rendered by one vessel to aid the propulsion or to expedite the movement
of another vessel. The vessel that supplies the power . . . is typically called a
tug.” THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW § 12-1 (West
5th ed. 2017) (“SCHOENBAUM”).

       Therefore, dictionaries, cases, and treatises all point to a common under-
standing of “tow”: some ship or boat that is being provided extra motive power
from another ship or boat by being pushed or pulled. 11 As P & I rightly con-
tends, the tow may have its own power—such as cruise ships or tankers being


contract—any other tug would then be a “tow,” including the ANGELA RAE. Even P & I
does not read the Atlantic Specialty policy so broadly. And no other dictionary, case, or
treaties defines “tow” in a similar way, indicating that this was not what the parties intended.
       10Similarly, in Sacramento Navigation Co. v. Salz, 273 U.S. 326, 328 (1927), the Court
defined “[t]owage service” as “the employment of one vessel to expedite the voyage of
another.”
       11  As P & I reads these dictionaries, cases, and treatises, the common thread is that
“towage is one vessel with some responsibility for the steering or navigation of another vessel
or object.” But none of these dictionaries or cases defines “towage” in relation to the responsi-
bilities of a vessel—a concept that P & I inserts without support. Instead, the plain definition
of “tow” requires that it be provided some motive power. P & I’s reading is without merit.
       Furthermore, P & I asserts that its definition of “tow” is the only one that is clean and
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                                        No. 17-30424
towed into a harbor—but the ship being towed is designated as the “tow” pre-
cisely because it receives auxiliary motive power from the tug or towing vessel.

       Under this plain-meaning approach, it is evident that the MISS
DOROTHY was not the “tow” of the ANGELA RAE. Nowhere is there indica-
tion that the ANGELA RAE was providing the MISS DOROTHY with any
motive power or was pushing or pulling her in any way. 12 Rather, Contin-
ental’s claim is that the ANGELA RAE was the lead tug—and that since the
MISS DOROTHY was an assisting tug, also pulling the barge FSB 101, the
ANGELA RAE was responsible for the safe navigation of the MISS DOROTHY.
But under those facts, there is no reason to characterize the MISS DOROTHY
as the “tow” of the ANGELA RAE.

                                               B.
       In the face of this plain meaning uniformly articulated by dictionaries,
treatises, and cases alike, P & I urges that we define “tow” as a vessel for whose
safe navigation another vessel has responsibility. That is, P & I insists that
we apply a maritime tort law concept—the “dominant mind” doctrine—to
define “tow” in this insurance contract. We decline that invitation.

       In any given flotilla, tugs generally have the following duties to their

easily applied. Yet there is no reason to think that the plain meaning of “tow,” articulated
above, is not also clean and easily applied. It will likely be plain in almost every case whether
one ship is providing another auxiliary momentum. To the contrary, as explained below, it
is P & I’s definition of “tow” that will likely lead to confusion—there may be instances in
which the vessel being towed has responsibility for the navigation of the tug.
       12  P & I claims that the MISS DOROTHY “alleges the MISS DOROTHY, though it
had motive power, in effect used the ANGELA RAE as ‘auxiliary power to assist [it] in moving
about.’” That quotation comes, however, from Stevens, 285 U.S. at 200—not from Continen-
tal’s complaint. We find no indication in the record that the MISS DOROTHY used the
ANGELA RAE for extra motive power. Rather, Continental’s complaint cuts the other direc-
tion. As Continental alleges, the MISS DOROTHY was “traversing the Mississippi River
with barge FSB 101 . . . in tow.” Thus, Continental’s complaint squares with the notion that
all three tugs were jointly pulling the barge. And other than this singular allegation by P & I,
the parties seem to agree that these are the facts upon which we should decide this case.
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tows: reasonable navigation, providing a proper towing apparatus, having a
qualified master and crew, following proper towing procedures, etc. SCHOEN-
BAUM   § 12-3. In turn, a tow has duties such as providing a seaworthy vessel,
being properly manned, and following the instructions of the tug. Id. § 12-5.

       The dominant mind doctrine usually kicks in where a flotilla—i.e. the
tugs and tows as unit—causes damage to some third party. 13 Typically courts
hold only the tug liable, given that it is usually in control of the operation,
having the duty of reasonable navigation. Id. § 12-6. Furthermore, the doc-
trine can absolve helper tugs of liability “if they are merely following instruc-
tions of the tug in charge.” Id. Yet this is merely a rebuttable presumption—
the tow or helper tug may be liable if negligent, 14 or the tow itself may be the
dominant mind. 15 Finally, the dominant mind doctrine can sometimes be used
where a tow itself is damaged—in such situations, a tug that was the dominant
mind may have had the duty of safely navigating the tow and may be liable. 16


       13See SCHOENBAUM § 12-6; Melbourne Bros. Constr. Co. v. Gnots-Reserve, 461 So. 2d
1145, 1148 (La. Ct. App. 5th Cir. 1984); Dep’t of Highways v. S. Shipbuilding Corp., 217 So.
2d 497, 500–02 (La. Ct. App. 1st Cir. 1969).
       14  SCHOENBAUM § 12-6; see also Chitty v. M/V Valley Voyager, 408 F.2d 1354, 1356–
58 (5th Cir. 1969) (finding that a refueling tug, which effectively became the “tow” of the lead
tug because it docked with the barge and mostly shut down its engines, was negligent by
failing to warn the lead tug of excessive speed); Commercial Union Ins. Co. v. M/V Bill
Andrews, 624 F.2d 643, 646–48 (similarly finding that a tug was mostly liable for the sinking
of a refueling tug that was effectively a tow but that the refueling tug was also somewhat
liable); S. Shipbuilding, 217 So. 2d at 502 (“[T]he helper tug is not liable for damages proxi-
mately caused by the faulty navigation of the superior or dominant vessel unless the helper
is guilty of independent fault which contributes to the casualty.”).
       15See, e.g., Plains Pipeline, L.P. v. Great Lakes Dredge & Dock Co., 54 F. Supp. 3d 586,
589–91 (E.D. La. 2014) (“The tow in this instance acted as the ‘dominant mind, instructing
the tug captains on the location to bring the dredge as well as how the dredge would be
anchored.’”). Furthermore, at least in admiralty cases, both tugs can be jointly at fault if
neither “surrendered command to the other.” Cenac Towing Co. v. Keystone Shipping Co.,
404 F.2d 698, 701–02 (5th Cir. 1968).
       16 See, e.g., Commercial Union, 624 F.2d at 647 (finding that a tug had duties to a
refueling tug that “became an appendage” of the lead tug); Chitty, 408 F.2d at 1356–57 (not-
ing the district court’s finding that the lead tug was negligent for failing to negotiate a river
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       According to the district court and P & I, a tug that is the dominant mind
of a flotilla, with the accompanying responsibilities, necessarily must view the
rest of the flotilla as its “tow.” Because Continental avers that the ANGELA
RAE was the lead tug and responsible for the navigation of the flotilla, P & I
infers that the MISS DOROTHY was the “tow” of the ANGELA RAE. As P & I
reasons, the ANGELA RAE owed the same duty of safe navigation to the MISS
DOROTHY as it did to the barge, FSB 101—thus, they are both the “tow” of
the ANGELA RAE.

       We disagree. First, there is little reason to think that these tort duties
should govern the meaning of “tow” in Atlantic Specialty’s policy. Tort duties
are precisely that: responsibilities that the parties owe to each other. But there
is no reason to think that these duties then define the meaning of “tow.” At
least in other contexts, there is good reason to think that using tort duties to
define contractual terms would be wholly inappropriate. 17

       Of course, some terms of insurance contracts might turn on tort law
concepts. If an insurance contract exempts employees who “assault” other
employees, then the tort law concept of “assault” is probably at play. Or a
contract that indemnifies a party only for acts that they “proximately cause”
would likely import that tort concept. But such terms usually derive their pri-
mary meaning from the relevant tort principles. Conversely, “tow” has a plain
and unambiguous meaning outside tort law or the dominant mind doctrine, as



bend safely and thus was liable to a refueling tug that effectively became the tow).
       17 For example, take a parent who has a $100,000 life insurance policy with his “chil-
dren” as the beneficiaries. Assume that the parent is acting as a chaperone for a field trip
when he is killed and that the relevant state law of in loco parentis imposes the same duty of
care on field-trip chaperones that any parent has over a child. Surely the insurance policy
does not then distribute the $100,000 equally to all of the children to whom the parent owed
that duty. The term “children” in the life insurance policy, everyone would know, would not
turn on the tort duty of in loco parentis.
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evidenced by the above-discussed cases, dictionaries, and treatises. Therefore,
there is little reason to think that the meaning of “tow” in an insurance con-
tract should be derived from tort law as opposed to its ordinary definition. 18

      Our conclusion is buttressed by the confusion we encounter when trying
to determine how to use tort duties to define “tow.” As discussed above, tugs
have several duties to their tows, only one of which is the duty of safe naviga-
tion. See SCHOENBAUM § 12-3. P & I gives no reason to think that the word
“tow” should be defined by that duty of safe navigation instead of, for example,
the duty to provide a proper towing apparatus. Cf. id. Indeed, the duty to
provide a proper towing apparatus seems more specific to tows and tugs. And
presumably, a lead tug would not have that duty to an assisting tug.

      Furthermore, as mentioned above, the dominant mind doctrine is only a
presumption. See id. § 12-6. It can be flipped; the tow can become the domin-
ant mind. See, e.g., Plains Pipeline, 54 F. Supp. 3d at 591; cf. SCHOENBAUM
§ 12-6. In such cases, it would be absurd to say that the tug is the “tow” of the
tow. The word “tow,” then, could not be defined by the dominant mind doctrine
in every case. And if the word “tow” does not always follow the duties attached
to the dominant mind, it is not clear why “tow” should ever be so defined.

      There is another reason why using the dominant mind doctrine to define
“tow” is strange: The doctrine does not impute the lead tug with sole responsi-
bility for the safe navigation of the flotilla. See SCHOENBAUM § 12-6. As our
caselaw make clear, even tugs that effectively become tows by relying on the
lead tug’s propulsion still have duties to inform the lead tug of any excessive
speed, to use their rudders to avoid catastrophe, and to move to more secure




      18  Notably, P & I points to no case in which the dominant mind doctrine is used to
define “tow” for an insurance contract.
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                                    No. 17-30424
positions if necessary. 19 Accordingly, both tugs have duties regarding the safe
navigation of the flotilla.

      The concept of “dominant mind” just helps courts allocate the fault of the
tugs, ensure that the lead tug has a duty of safe navigation, and determine
who was more negligent. Therefore, because liabilities flowing from the domin-
ant mind doctrine are really a matter of degree rather than kind, it seems odd
to use the doctrine as an ontological on/off switch when defining “tow.” That
is especially true insofar as the assisting tug could possibly be more negligent
in those duties regarding safe navigation.

                                          IV.
      In sum, “tow” as used in Atlantic Specialty’s policy is defined by its plain,
ordinary meaning: a vessel that is provided auxiliary motive power by being
pushed or pulled. A tug remains a tug when it is tugging (i.e., pushing or pull-
ing), and a tow is a tow only when it is being towed (i.e. being pushed or pulled).
And because the MISS DOROTHY was not provided any extra motive power,
it was not a tow. Atlantic Specialty’s policy does not apply.

      The summary judgment is REVERSED, and judgment is RENDERED
for Atlantic Specialty.




      19 Commercial Union, 624 F.2d at 646–48; Chitty, 408 F.2d at 1356–58; S. Shipbuild-
ing, 217 So. 2d at 502.
                                           12
