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Ocean Marine |
Barratry |
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Free of Capture and Seizure |
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Jack Tillery (Tillery) owned the Texas Pride. He entered into a contract with Captain Paul Miller (Miller) to use the Texas Pride for fishing within 200 miles of the coast of Florida. The contract specifically stated that the Texas Pride could not be used to carry illegal substances. A month into the contract Miller took the Texas Pride to Jamaica in order to pick up a shipment of marijuana. The Texas Pride was seized by Jamaican authorities and stripped of its gear. A forfeiture hearing took place and Texas Pride became the property of Jamaica.
Hull Company provided coverage on the Texas Pride and paid
$30,000 for the release of the vessel. Later a claim was presented by Tillery
for a total constructive loss of the Texas Pride because of the damage that
occurred to it while in the hands of the Jamaican government. Hull denied the
loss because of the Free of
Capture and Seizure clause (FCS clause). Tillery argued that coverage did apply
because it was due to the barratry of Captain, a covered loss.
The trial
court agreed with Hull and Tillery appealed
On
appeal, the insured again argued that the damage to the ship was caused by the
captain's barratry. The insurer contended that almost all damage was caused by
the seizure and stripping of the vessel by the authorities. The task for the
court was to decide what peril caused the damage.
The
appeal court followed precedent and concluded that the vessel had not been damaged
by the barratry of its master but instead had been damaged by the Jamaican
authorities after it had seized it which was excluded under the FCS clause. The
court concluded that there had not been a constructive total loss, as claimed
by the insured. It allowed a modest sum, associated with the captain's
barratry, to the insured.
The
judgment of the trial court in favor of the insurance company and against the
insured was affirmed.
(TILLERY,
Plaintiff, Appellant v. HULL & COMPANY, INC. ET AL., Defendants, Appellees.
United States Court of Appeals, Eleventh Circuit. No. 88-3706. July 12, 1989.
CCH 1989-90 Fire and Casualty Cases, Paragraph 1927.)