Catastrophic Marine Loss Alert



Marcus G. Mahfood

MARCUS G. MAHFOOD is a Partner with the Miami office of The Chartwell Law Offices, LLP.  Mr. Mahfood is an experienced federal court litigator specializing in the areas of Admiralty and Maritime law and insurance coverage litigation. His practice also includes handling a wide variety of crew and passenger claims, marine insurance claims, yacht and small recreational boat matters, personal injury and wrongful death claims, property damage claims, premises liability,...

Andrew D Craven

ANDREW D. CRAVEN is a partner with the Miami office of The Chartwell Law Offices, LLP.  Mr. Craven's practice focuses primarily on maritime matters, including the defense of crew and passenger claims, limitation of liability actions, cargo claims, and salvage claims.  Mr. Craven's experience includes trials, arbitrations, and appeals.  He is Board Certified in Admiralty and Maritime law by the Florida Bar. Mr. Craven graduated from Florida State University with a...

P. Zak Colangelo

P. ZAK COLANGELO is an associate in Chartwell’s Miami office. Born in New York, New York, Mr. Colangelo graduated with a Bachelor of Arts in English from Washington and Lee University in 2010, where he focused his studies on Medieval British Literature. At Washington and Lee, Mr. Colangelo was also a four-year letterman on the school’s wrestling team. After returning to New York City to spend a year working in...

Krista Fowler Acuña

KRISTA FOWLER ACUÑA is a Partner in the Miami office of The Chartwell Law Offices, LLP.   Ms. Fowler Acuña represents domestic and London market clients in liability and coverage matters.  In additional to general liability matters (such as premises and vehicular claims), Ms. Fowler Acuña has particular acumen and experience in counseling and representing technical industries and markets including maritime and admiralty, products liability (consumer, industrial, and marine products), construction...

CATASTROPHIC MARINE LOSS ALERT

While our thoughts go out to those affected by Hurricane Irma, we also want our clients to know that we are available to help. The damage left in Irma’s wake is devastating and as you most likely know Florida is experiencing significant damage to vessels, docks, marinas, and shipyards.

Often marine losses become high profile, bringing external considerations into the claims adjustment process.  While external considerations do not have a direct impact on the interpretation of policy wording and coverage, the higher profile claim requires an elevated level of attention to time considerations in the claims process and to the management of expectations.

During these difficult times, we thought it would be helpful to point out some important general maritime and Florida law considerations that may be implicated in the aftermath of hurricanes, floods and surges. Here are a few to keep in mind:

  • What to Expect
    • Hull claims
    • Claims by vessel owners against marina operators for damage to their vessels.
    • Claims by marina operators against vessel owners for damage to marina facilities.
    • Claims by third parties for property damage caused by vessels blown out of marinas.
    • Derelict vessel issues
  • General Maritime Law or State Law?
    • General maritime law applies on the navigable waters of the United States including on the “waterside” of a seawall.
    • Dockage Agreements and Slip Rental Agreements for “In-Water” moorings are “maritime” contracts governed by the general maritime law.
    • Damage caused ashore during a hurricane by vessels on the water falls within admiralty jurisdiction.
    • State law may supplement but not change general maritime law.
    • Local activities such as anchoring and mooring are especially suited for local regulation.
    • Local regulations, however, cannot alter fundamental principles such as the standard of care.
    • In coverage disputes, applicable law may be dictated by a choice of law provision in the Policy so long as the selected state’s law bears a substantial connection to the Policy.
    • Be mindful that the current status of general maritime law in the 11th Circuit permits an insured to recover prevailing party attorneys fees under Fla. Stat. 627.428 in a coverage case against its marine insurer.
    • Challenges to choice of law provisions could result in application of another state’s law that might permit for statutory attorney fees as well (Texas, for example).
    • Florida has enacted legislation addressing public policy concerning terms and conditions of marina contracts and whether actions taken to prepare for hurricanes may, or may not, be included.
    • Florida Statute Section 327.59 provides that marinas may not adopt policies pertaining to evacuation of vessels which require vessels to be removed from marinas following the issuance of a hurricane watch or warning, in order to ensure that protecting lives and safety of vessel owners is placed before interests of protecting property.
  • Warfinger Duties
    • Under general maritime law, the entity that provides vessel berths, dockage, etc. is referred to as a “wharfinger.”
    • The most elemental duties owed by the wharfinger to a shipowner are to provide a safe berth, sufficient and adequate mooring appliances, and safe ingress and egress.
    • The failure to provide a safe berth may create a presumption of negligence in the manner of its construction and maintenance.
    • Be aware…..many marinas designed or built before 1994 were NOT designed to withstand Category 2 hurricane force wind and waves WITH vessels moored to the piers.  As are result, many are destined to fail in any storm of force with vessels moored to the piers.
  • Vessel Owner Duties
    • Act with reasonable care under the circumstances.
    • Use all reasonable means and take proper action to prevent or mitigate the dangers posed by the hurricane.
    • Properly moor the vessel, stow loose gear on deck, and properly tie down other gear.
    • Must follow insured’s specific hurricane plan where one was required by underwriters.
  • Act of God
    • The Act of God defense applies only to events in nature so extraordinary that the history of climatic variations and other conditions in the particular locality affords no reasonable warning of them.
    • Thus, an essential element of the Act of God defense is “that the damage from the natural event could not have been prevented by the exercise of reasonable care.”
  • Force Majeure
    • An inevitable or unavoidable accident caused by overwhelming and unforeseeable natural conditions that could not have been avoided by reasonable precautions or measures.
    • Party relying on the “Act of God” defense bears a heavy burden to show they exhausted every reasonable possible precaution and did everything reasonable care required.
  • Other Important Considerations
    • Take note of the quantum of a hull claim - is the insured vessel a constructive total loss or repairable?
    • Require a sworn proof of loss with a detailed written list of damages for all Hurricane Irma claims without exception.
    • Be sure to confirm accurate mooring locations for any insured vessel that broke free during the storm.
    • Waiver of Subrogation issues
    • Marinas as additional insureds
    • Hold harmless and indemnify from third party claims
    • Shifting loss to third party insurer
    • Indemnify for loss without fault
    • Exculpatory Clauses
    • Limitation of Liability Clauses
    • Evacuation requirements
  • Abandoned and Derelict Vessels
    • Derelict vessels are those in a wrecked or substantially dismantled condition upon any public waters of the state, at any port in this state without the consent of the agency having jurisdiction thereof, or docked or grounded upon the property of another without the consent of the property owner.
    • Fla. Stat. 823.11 states that it is unlawful for any person, firm, or corporation to store, leave, or abandon any derelict vessel.
    • Violation of this section constitutes a 1st Degree Misdemeanor (punishable by fine or imprisonment less than one year).
    • When a derelict vessel is docked or grounded upon private property, the owner of the property may remove the vessel at the vessel owner's expense 60 days after compliance with the notice requirements of Fla. Stat.  328.17(5).
    • For removal, contact the Florida Fish and Wildlife Conservation Commission as they are empowered by statute to remove  abandoned or derelict vessel.

For many years, Chartwell Law’s maritime attorneys have assisted clients with first and third party claims arising out of hurricanes and other natural disasters throughout the United States, including the Caribbean. While our admiralty and maritime group practices out of our Miami office, Chartwell has seven offices located throughout Florida and can handle Irma claims anywhere in the state. A map of our Florida office locations and a list of our attorneys are enclosed.

Our marine coverage and litigation experience includes claims arising from marine insurance, property damage, personal injury and wrongful death, maritime commercial disputes, shipping and cargo claims, marina and boatyard liability, recreational watercraft issues, and environmental concerns. Our clients include most major domestic, London, Bermuda and European insurers.

Chartwell’s admiralty and maritime group works closely and collaboratively with our clients and their retained experts and consultants to ensure prompt, accurate and legally defensible positions on claims issues. Our attention to details ensures the fair and timely assessment of all available information and the proper application of policy provisions in accordance with the relevant legal standards.

If we can be of any assistance to you during these hectic times, please feel free to call upon us.  We appreciate the opportunity to serve your legal needs and for your confidence in our work.

Regards,

Krista Fowler Acuña

kfacuna@chartwelllaw.com

Mobile 305-778-1640

 

Andrew D. Craven

acraven@chartwelllaw.com

Mobile 305-439-0919

 

Marcus G. Mahfood

mmahfood@chartwelllaw.com

Mobile  786-325-5606

 

P. Zak Colangelo

zcolangelo@chartwelllaw.com

Mobile  845-642-3604