UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

In Admiralty

Case No.: 1:20-cv-22518-FAM

LEOPARD 34 M, LLC,

Plaintiff,

v.

NATIONAL UNION FIRE INSURANCE 

COMPANY OF PITTSBURGH, PA,

Defendant. /

DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT

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Table of Contents

Table of Authorities.....................................................................................................................iii

1. Introduction ........................................................................................................................... 1

2. Summary Judgment Standard ............................................................................................. 3

3. Choice of Law......................................................................................................................... 4

4. The Loss.................................................................................................................................. 6

5. Gradual or Sudden Loss Exclusion...................................................................................... 7

6. The Captain Warranty........................................................................................................ 10

6.1. Leopard Did Not Have a Full-Time Captain at the Time of the Loss............................ 11

6.2. Even If Captain Andrade Was the Full-Time Captain, Leopard Failed to Notify 

National Union of the Change................................................................................................... 14

6.3. Even If Captain Andrade Were the Full-Time Captain, He Was Not Operating the 

Vessel at the Time of the Loss. ................................................................................................. 15

7. Conclusion............................................................................................................................ 15

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Table of Authorities

Cases

Bonner v. City of Prichard, Ala.,

661 F.2d 1206 (11th Cir. 1981)................................................................................................... 4

Bottitta v. Bottitta,

598 N.Y.S.2d 304 (N.Y. App. Div. 1993)................................................................................... 8

Celotex Corp. v. Catrett,

477 U.S. 317 (1986).................................................................................................................... 3

Cent. Nat’l Bank v. Palmer,

806 F. Supp. 253 (M.D. Fla. 1992) ............................................................................................. 3

Chapman v. Am. Cyanamid Co.,

861 F.2d 1515 (11th Cir. 1988)................................................................................................... 3

Commercial Union Ins. Co. v. Flagship Marine Servs., Inc.,

190 F.3d 26 (2d Cir. 1999)........................................................................................................ 11

Cooper v. Meridian Yachts, Ltd.,

575 F.3d 1151 (11th Cir. 2009)................................................................................................... 4

Dominick v. Dixie Nat’l Life Ins. Co.,

809 F.2d 1559 (11th Cir. 1987)................................................................................................... 4

Fla. Int’l Univ. Bd. of Trs. v. Fla. Nat’l Univ., Inc.,

830 F.3d 1242 (11th Cir. 2016)................................................................................................... 4

Great Lakes Reinsurance (UK) PLC v. Durham Auctions, Inc.,

585 F.3d 236 (5th Cir. 2009)....................................................................................................... 5

Great Lakes Reinsurance (UK), PLC v. Rosin,

757 F. Supp. 2d 1244 (S.D. Fla. 2010).................................................................................. 5, 11

Hairston v. Gainesville Sun Publ’g Co.,

9 F.3d 913 (11th Cir. 1993)..................................................................................................... 3, 4

Hansard v. Fed. Ins. Co.,

46 N.Y.S.3d 163 (N.Y. App. Div. 2017)..................................................................................... 8

Howard v. BP Oil Co., Inc.,

32 F.3d 520 (11th Cir. 1994)....................................................................................................... 3

Jarvis Towing & Transp. Corp. v. Aetna Ins. Co.,

82 N.E.2d 577 (N.Y. 1948)....................................................................................................... 11

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Lachs v. Fid. & Cas. Co. of N.Y.,

118 N.E.2d 555 (N.Y. 1954)....................................................................................................... 8

Maven Techs., LLC v. Vasile,

46 N.Y.S.3d 720 (N.Y. App. Div. 2017)................................................................................... 15

MDW Enters., Inc. v. CNA Ins. Co.,

772 N.Y.S.2d 79 (N.Y. App. Div. 2004)..................................................................................... 8

Memmo v. Direct Supply of Wisc., Inc.,

No. 8:18-cv-879-JSM-JSS, 2018 WL 8244846 (M.D. Fla. July 6, 2018) .................................. 5

Ment Bros. Iron Works Co., Inc. v. Interstate Fire & Cas. Co.,

702 F.3d 118 (2d Cir. 2012)........................................................................................................ 9

Northville Indus. Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa.,

679 N.E.2d 1044 (N.Y. 1997)..................................................................................................... 9

Nunez v. Superior Oil Co.,

572 F.2d 1119 (5th Cir. 1978)..................................................................................................... 4

Serendipity at Sea, LLC v. Underwriters at Lloyd’s of London Subscribing to Policy No. 187581,

No. 20-CV-60520-RUIZ/STRAUSS, 2021 WL 1348435 (S.D. Fla. Feb. 5, 2021) ................. 14

Sierra Club, Inc. v. Leavitt,

488 F.3d 904 (11th Cir. 2007)..................................................................................................... 3

St. Paul Fire & Marine Ins. Co. v. Lago Canyon, Inc.,

561 F.3d 1181 (11th Cir. 2009)................................................................................................... 4

St. Paul Fire & Marine Ins. Co. v. Matrix Posh, LLC,

No. 10-CV-4776 (SJF)(WDW), 2011 WL 13377651 (E.D.N.Y. Nov. 22, 2011).................... 15

Travelers Prop. Cas. Co. of Am. v. Ocean Reef Charters, LLC,

396 F. Supp. 3d 1170 (S.D. Fla. 2019)................................................................................ 11, 13

Useden v. Acker,

947 F.2d 1563 (11th Cir. 1991)................................................................................................... 4

Warrior Tomigbee Transp. Co. v. M/V Nan Fung,

695 F.2d 1294 (11th Cir. 1983)................................................................................................... 3

Statutes

§ 370.101(22), Fla. Stat................................................................................................................. 10

§ 627.409(2), Fla. Stat................................................................................................................... 13

Rules

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Fed. R. Civ. P. 56........................................................................................................................ 1, 3

Fed. R. Civ. P. 9(h) ......................................................................................................................... 4

S.D. Fla. L.R. 56.1 .......................................................................................................................... 1

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Defendant, NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, 

PA (“National Union”), pursuant to Fed. R. Civ. P. 56 and Local Rule 56.1, hereby files its Motion 

for Final Summary Judgment, and for the reasons stated herein, respectfully submit that Summary 

Judgment must be granted in its favor:

1. Introduction

This case presents an insurance coverage dispute arising out of a loss sustained by the 

Plaintiff’s vessel, a 2008 112' Arno Leopard, M/Y ASASKA (the “Vessel”). The Vessel allegedly 

suffered damage when its starboard engine overheated during a trip from South Florida to the 

Bahamas on June 19, 2019. National Union has denied coverage.

In its investigation into the loss, National Union discovered that the overheat was caused 

by extensive marine growth in the Vessel’s starboard heat exchanger. That this growth caused the 

loss has been admitted by: (1) Javier Rodriguez, whom the Plaintiff hired to clean the heat 

exchangers following the loss; (2) Ricky Machin, the first mate aboard the Vessel at the time of 

the loss; and (3) Albert Maury, the beneficial owner of the Vessel and the insured’s corporate 

representative. Their reasoning is obvious to even the most casual observer. When the heat 

exchanger was disassembled following this loss, this is what they found. SOF ¶ 33.

1

1 References to National Union’s contemporaneously filed Statement of Material Facts are denoted SOF followed by 

the corresponding paragraph number.

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In short, there is no serious dispute as to why this loss occurred. Unfortunately for the 

Plaintiff, the Policy expressly excludes “loss, damage, claim or expense caused directly or 

indirectly, in whole or in part by...marine life[.]”

Aside from the fact that the loss was expressly excluded from coverage, at the time of the 

loss, the Plaintiff was also in violation of the Policy’s captain warranty insofar as (1) the Plaintiff 

did not employ a full-time captain at the time of the loss; (2) even if the Plaintiff did have a fulltime captain, it had not notified National Union of the change in captain; and (3) even if the 

Plaintiff did have a full-time captain, he was not operating the Vessel at the time of the loss. 

Because, under controlling law, violation of an express warranty in a marine insurance contract 

suspends coverage during the period of non-compliance, and because the Plaintiff was noncompliant at the time of the loss, such violation provides a separate basis for no finding no 

coverage.

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In short, there are two wholly distinct bases for finding that the subject loss is not covered. 

For that reason, the Court should enter summary judgment in National Union’s favor and dismiss 

this case with prejudice.

2. Summary Judgment Standard

Summary judgment is appropriate when, viewing the record in the light most favorable to 

the non-moving party, there is no genuine issue of material fact and the moving party is entitled to 

judgment as a matter of law. Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 911 (11th Cir. 2007); see 

also Fed. R. Civ. P. 56(a). Rule 56 “mandates the entry of summary judgment...against a party 

who fails to make a showing sufficient to establish the existence of an element essential to the 

party’s case, and on which that party will bear the burden of proof at trial. There is no issue for 

trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict 

for that party.” Chapman v. Am. Cyanamid Co., 861 F.2d 1515, 1518 (11th Cir. 1988) (omission 

in original) (citations omitted). 

The movant bears the burden of demonstrating there is no dispute as to any material fact 

in the case. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hairston v. Gainesville Sun Publ’g 

Co., 9 F.3d 913, 918 (11th Cir. 1993); Warrior Tomigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 

1294, 1296 (11th Cir. 1983). Once the moving party satisfies its burden, the burden shifts to the 

nonmoving party to establish the existence of a genuine issue of material fact. Celotex, 477 U.S. 

at 324; Howard v. BP Oil Co., Inc., 32 F.3d 520, 524 (11th Cir. 1994). 

Construction of an insurance policy may be a question of law and suitable for summary 

judgment. Cent. Nat’l Bank v. Palmer, 806 F. Supp. 253, 256 (M.D. Fla. 1992). When deciding a 

motion for summary judgment, “[i]t is not part of the court’s function...to decide issues of material 

fact, but rather [it is to] determine whether such issues exist to be tried.” Hairston, 9 F.3d at 919. 

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The only determination for the court in a summary judgment proceeding is whether there exists 

genuine and material issues of fact to be tried. Id. at 921; Dominick v. Dixie Nat’l Life Ins. Co., 

809 F.2d 1559 (11th Cir. 1987).

Because the Plaintiff filed this action in admiralty and made an election under Fed. R. Civ. 

P. 9(h) to proceed in admiralty, this Court has already recognized that any issue of fact in this 

matter as between the Parties will be tried to the bench, not a jury. See Order Granting Motion to 

Strike [ECF No. 37]; St. Paul Fire & Marine Ins. Co. v. Lago Canyon, Inc., 561 F.3d 1181, 1186-

89 (11th Cir. 2009). In bench trial cases, the district judge has greater discretion to grant summary 

judgment, and may be “warranted in concluding that there was or was not negligence, or that 

someone acted reasonably or unreasonably, or, as is the case here, that delay under the 

circumstances proved is justified or unjustified, even if that conclusion is deemed ‘factual’ or 

involves a ‘mixed question of fact and law.’” Nunez v. Superior Oil Co., 572 F.2d 1119, 1124 (5th 

Cir. 1978).

2 As the old Fifth Circuit explained, “The judge, as trier of fact, is in a position to and 

ought to draw his inferences without resort to the expense of trial.” Id. After the split in 1981, the 

Eleventh Circuit approved this approach. Fla. Int’l Univ. Bd. of Trs. v. Fla. Nat’l Univ., Inc., 830 

F.3d 1242, 1252 (11th Cir. 2016) (citing Useden v. Acker, 947 F.2d 1563, 1572-73 (11th Cir. 

1991)).

3. Choice of Law

As noted above, this action was filed in admiralty. Consequently, federal maritime choiceof-law rules apply. Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151, 1161-62 (11th Cir. 2009).

Under federal maritime choice-of-law rules, an express choice-of-law clause in a marine insurance 

contract will be enforced unless the pre-selected state has no substantial relationship to the parties 

2 Fifth Circuit opinions handed down prior to close of business on September 30, 1981 are binding precedent in the 

Eleventh Circuit. Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981).

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or the transaction or the state’s law conflicts with the fundamental purpose of maritime law. Great 

Lakes Reinsurance (UK), PLC v. Rosin, 757 F. Supp. 2d 1244, 1250-51 (S.D. Fla. 2010). In other 

words, a “choice of law provision in a maritime insurance contract will be upheld in the absence 

of evidence that its enforcement would be unreasonable or unjust.” Id. at 1251 (quoting Great 

Lakes Reinsurance (UK) PLC v. Durham Auctions, Inc., 585 F.3d 236, 242 (5th Cir. 2009)).

The Policy at issue contains a choice-of-law clause. That clause states that “Any dispute 

regarding the coverage afforded under the Policy shall be governed by the rules and principles of 

federal admiralty law. In the event that a rule of federal admiralty law does not exist, then any 

dispute regarding the coverage afforded under the Policy shall be governed by the law of the State 

of New York, without giving effect to any conflict of laws principles which might cause the 

application of the law of any other state or jurisdiction.” SOF ¶ 6.

This clause is enforceable. To start, “parties to a marine insurance policy, which can be 

governed by admiralty law, can certainly contract for the application of federal maritime law.” 

Rosin, 757 F. Supp. 2d at 1251. As for the secondary selection of New York law in the absence of 

entrenched federal maritime law, that too must be enforced. National Union is a Pennsylvania 

corporation with its principal place of business in New York City. SOF ¶ 7.

3 Similar forum 

selection clauses have been held enforceable in far more attenuated cases than where one of the 

parties is actually domiciled in the pre-selected forum. See Rosin, 757 F. Supp. 2d at 1251 (noting 

that a similar selection of New York law was enforceable where the insurer “first applied to be a 

surplus line carrier in New York...maintains bank accounts in New York...Great Lakes accepts 

3 Courts in Florida regularly take judicial notice of Sunbiz filings for identifying states of incorporation and principal 

places of business. See, e.g., Memmo v. Direct Supply of Wisc., Inc., No. 8:18-cv-879-JSM-JSS, 2018 WL 8244846, 

at *1 (M.D. Fla. July 6, 2018). The Court is requested to do so here.

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service of process through attorneys in New York...and...is a wholly-owned subsidiary of [two 

other entities]...the offices of both of those insurance companies are in New York.”).

In short, National Union—whose principal office is in New York—has substantial 

connections to New York that support enforcement of the choice-of-law clause. Therefore, to the 

extent that a particular term of the Policy is not covered by federal maritime law, the law of New 

York must govern.

4. The Loss

On June 19, 2019, the Vessel set sail from Albert Maury’s home in Coral Gables for the 

Bahamas. SOF ¶ 8. Mr. Maury is the beneficial owner of the Vessel. SOF ¶ 9. At the time, the 

Vessel was being captained by Jose Caballero, who was hired to operate the Vessel solely for the 

subject trip. SOF ¶ 10. He was not the full-time captain of the Vessel. SOF ¶ 11. Also aboard the 

Vessel at the time was its mate, Ricky Machin. SOF ¶ 12.

Approximately 30 minutes after departing from Coral Gables, Captain Caballero noticed 

that the Vessel’s starboard engine was running hotter than normal. SOF ¶ 13. Captain Caballero 

then stopped the engines and asked Ricky Machin to check the fluid in the starboard engine’s heat 

exchanger. SOF ¶ 14. After Machin reported that the fluid was low, Caballero instructed him to 

add fluid to the heat exchanger. SOF ¶ 15. Caballero then restarted the engines, and the Vessel 

continued on its way. SOF ¶ 16.

Approximately two hours later, Captain Caballero again noticed that the Vessel’s starboard

engine was running hotter than normal. SOF ¶ 17. After Ricky Machin reported that the fluid in 

the starboard heat exhcanger was low again, Caballero again instructed him to add fluid to it. SOF 

¶ 18. At this point, Caballero believed there might be a problem, but they nonetheless continued 

on. SOF ¶ 19.

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Approximately another 60-90 minutes later, the Vessel overheated a third and final time.

SOF ¶ 20. This time, the Vessel’s fire alarm went off and the engine room sealed itself to block 

any oxygen from entering the engine room. SOF ¶ 21. There was no actual fire; rather, a hole had 

burned into the exhaust system, and exhaust was poured into the engine room as a result. SOF 

¶ 22. At this point, Caballero and Machin shut the engines down, open the top hatch to vent the 

engine room, drop anchor, and call for a tow. SOF ¶ 23. Ultimately, the Vessel was retrieved and 

towed back to Pier 66 in Fort Lauderdale. SOF ¶ 24. The following day, it was towed back to Mr. 

Maury’s home in Coral Gables. SOF ¶ 25.

Once the Vessel was back in Coral Gables, Leopard contacted a specialist to diagnose what 

had happened. SOF ¶ 26. That specialist was Javier Rodriguez of a company called Diesel Core 

Marine, LLC. SOF ¶ 27. When he arrived at the Vessel on June 26, Mr. Rodriguez observed that 

a hole had been burned in the exhaust muffler, indicating a lack of water flow through the heat 

exchanger. SOF ¶ 28. After conducting an inspection, Mr. Rodriguez discovered a large mass of 

what he described as “mussels” or “barnacles” in the heat exchanger. SOF ¶¶ 33-37.

5. Gradual or Sudden Loss Exclusion

There appears to be no entrenched federal rule governing the construction of the Policy’s 

gradual or sudden loss exclusion. Therefore, New York law applies.

The Policy’s Gradual or Sudden Loss exclusion reads, in its entirety, as follows:

Gradual or Sudden Loss

We do not cover any loss, damage, claim or expense caused directly or 

indirectly, in whole or in part by osmosis, blistering, fiberglass or surface 

coat blistering, rust, corrosion, except electrolytic (stray current) corrosion 

or oxidation, marine life, marine borers, moth or vermin, rot, fungi, mold or 

infestation, warping or shrinkage, change of temperature, freezing or 

humidity, deterioration, lack of maintenance wear and tear, marring, 

scratching, denting or inherent vice. No coverage is provided for 

mechanical breakdown and Manufacturing or Design Defects in regards to 

Tenders, Electronic Navigation and Communication Equipment, Personal 

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Watercrafts or Trailers. However, coverage is provided for accidental 

damage resulting from zebra mussels, and muskrats, but applies only to 

engines, generators, and pumps that are attached to the Insured Vessel. 

Coverage is also provided for collision with marine mammals.

SOF ¶ 3.

Under New York law, unambiguous provisions in insurance policies are given their plain 

and ordinary meaning. See, e.g., Hansard v. Fed. Ins. Co., 46 N.Y.S.3d 163, 166 (N.Y. App. Div. 

2017). To that end, policies of insurance “must be read through the eyes of the average man on the 

street or the average housewife who purchases it.” Lachs v. Fid. & Cas. Co. of N.Y., 118 N.E.2d 

555, 558 (N.Y. 1954); see also MDW Enters., Inc. v. CNA Ins. Co., 772 N.Y.S.2d 79, 82 (N.Y. 

App. Div. 2004) (“In construing an insurance contract, the tests to be applied are ‘common speech’ 

and ‘the reasonable expectation and purpose of the ordinary businessman.’”). However, “A court 

may not write into a contract conditions the parties did not insert by adding or excising terms under 

the guise of construction, nor may it construe the language in such a way as would distort the 

contract’s apparent meaning.” Bottitta v. Bottitta, 598 N.Y.S.2d 304, 306 (N.Y. App. Div. 1993).

The subject exclusion is not ambiguous. Rather, it plainly excludes from coverage “loss, 

damage, claim or expense caused directly or indirectly, in whole or in part by...marine life[.]”

SOF ¶ 3. Put another way, if “marine life” in any way contributed to the loss, there is no coverage.

It does not matter whether the marine life grew onboard the Vessel or were sucked into an intake; 

it does not matter if the heat exchanger was last cleaned the day before the loss or months before 

the loss. If these organisms caused the loss “directly or indirectly, in whole or in part,” there is no 

coverage.

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Here, there is no serious doubt that the loss was caused by the buildup of oysters in the 

Vessel’s starboard heat exchanger.4 As testified to by Javier Rodriguez, the owner of Diesel Core 

Marine, the company retained by the Plaintiff to clean the heat exchanger, there are only two ways 

for this type of overheat to occur—either a valve must have been closed or there must have been 

an obstruction in the intake. SOF ¶ 29. The first possibility was ruled out; if a valve were closed, 

the engine would have overheated immediately, which did not happen. SOF ¶ 31. And the only 

obstruction that was discovered in the heat exchanger following the loss was the mass of oysters, 

which Mr. Rodriguez testified were blocking approximately 75-80% of the raw water flow. SOF 

¶¶ 33-37. Everyone who has looked has said that the loss was caused by this growth—in addition 

to Mr. Rodriguez, Ricky Machin (the mate aboard the Vessel at the time of the loss) and Albert 

Maury (the vessel’s beneficial owner, who was presented as a corporate representative to testify 

on “the cause of the loss that is the subject of this action”) have also said that this was the cause of 

loss. SOF ¶ 39. Indeed, when the Plaintiff submitted its first notice of loss on October 9, 2019, the 

Acord form submitted specifically stated “Ultimately after inspection, the issue was the result of 

the clogged heat exchanger.” SOF ¶ 40.

5

As a result, the only way in which the gradual or sudden loss exclusion would not exclude 

coverage for this loss is if the Plaintiff can convince this Court that the various species of mussels 

and oysters that grew in the heat exchanger—endemic to the salty and brackish waters that make 

up Biscayne Bay and the surrounding waters—are not “marine life.” See SOF ¶¶ 41-43. No 

4 There is an exception to the exclusion for “accidental damage resulting from zebra mussels.” However, under New 

York law, while the burden is on the insurer to prove the applicability of an exclusion, the burden is on the insured to 

prove an exception to an exclusion. See Ment Bros. Iron Works Co., Inc. v. Interstate Fire & Cas. Co., 702 F.3d 118, 

121-22 (2d Cir. 2012); Northville Indus. Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 679 N.E.2d 1044, 1048-

49 (N.Y. 1997). Regardless, no evidence of zebra mussels was found in the heat exchanger, which is to be expected, 

as zebra mussels only grow in fresh water, anyway. SOF ¶ 46.

5 That the loss was reported to National Union so late is a separate coverage defense that National Union has asserted. 

However, because there is a material issue of fact as to when the loss was reported, National Union has not moved for 

summary judgment on that issue.

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sensible definition of “marine life” could exclude the organisms found in the heat exchanger. By 

way of example, Florida law defines “marine fish” (which is definitionally narrower than “life”) 

as, inter alia, “marine invertebrates in the classes Gastropoda, Bivalvia, and Crustacea, or the 

phylum Echinodermata.” § 370.101(22), Fla. Stat. Isognomon, brachidontes, and mytilopsis are 

all in the Bivalvia class. SOF ¶ 41. And the Plaintiff’s own expert, Timothy Collins, a professor in 

the Department of Biological Sciences at Florida International University who has studied 

mollusks for 37 years, has admitted that the organisms found in the heat exchanger are “life” and 

survive in marine habitats. SOF ¶ 47. He further concluded that the bivalves in question came 

aboard the Vessel as larvae and grew past the intake filter. SOF ¶¶ 44-45.

Thus, because there is no dispute that the loss was caused by the oyster buildup in the heat 

exchanger, and because there is no dispute that such a cause of loss is excluded, summary judgment 

must be entered in National Union’s favor.

6. The Captain Warranty

The Policy also contains a Captain Warranty. That warranty provides, in its entirety:

It is warranted you employ a professional captain for the yacht shown on 

the Declarations Page of this policy. Such captain shall be employed full 

time to operate and maintain the insured yacht and approved by us.

The insured is required to provide us (the company) with a copy of the 

captain’s resume and current license.

If there is no captain employed, or if you change captains without 

reasonable notice and approval by us, then there will be no coverage under 

this policy.

All other terms, conditions and exclusions remain the same.

SOF ¶ 5. This warranty was violated in three ways. First, at the time of the loss, Leopard did not 

have a full-time captain; while Roger Andrade had nominally been hired, he did not commence 

work until nearly a month later. Second, even if Captain Andrade was the full-time captain of the 

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Vessel, the change in captain—and the loss—occurred before the Plaintiff notified National Union.

And third, even if Andrade had been nominally hired, he was not operating the Vessel at the time 

of the loss.

Whether as a matter of federal maritime law or New York law, any breach of a marine 

insurance warranty voids coverage, irrespective of whether there is any relationship between the 

breach and the loss. Travelers Prop. Cas. Co. of Am. v. Ocean Reef Charters, LLC, 396 F. Supp. 

3d 1170, 1177 (S.D. Fla. 2019) (holding that under federal maritime law, all warranties are to be 

strictly enforced);

6 Commercial Union Ins. Co. v. Flagship Marine Servs., Inc., 190 F.3d 26, 31-

32 (2d Cir. 1999) (holding the same under New York law). An express warranty in a marine 

insurance policy “must be literally complied with, and...noncompliance forbids recovery, 

regardless of whether the omission had a causal relation to the loss.” See Jarvis Towing & Transp. 

Corp. v. Aetna Ins. Co., 82 N.E.2d 577, 577 (N.Y. 1948); see also Rosin, 757 F. Supp. 2d 1257-

58 (discussing the impact of the breach of a marine insurance warranty under New York law).

Thus, because Leopard was in breach of the Captain Warranty at the time of the loss, there 

is no coverage for the loss.

6.1. Leopard Did Not Have a Full-Time Captain at the Time of the Loss.

Leopard’s had several captains throughout the early half of 2019. At the beginning of 2019, 

Roger Andrade was the Vessel’s full-time captain. SOF ¶ 48. He then left the Vessel on or about 

February 23, 2019, and was replaced, ostensibly, by Racso Bustamante in April. SOF ¶¶ 49-50. 

6 Candidly, Ocean Reef is currently on appeal in the Eleventh Circuit (case no. 19-13690) on its holding that all marine 

insurance warranties are strictly applied, where it has been fully briefed, argued, and is awaiting disposition. However, 

even if Ocean Reef is overturned on those grounds, New York law still strictly enforces marine insurance warranties. 

Either way, violation of the warranty results in a suspension of coverage. See Rosin, 757 F. Supp. 2d at 1257-58

(enforcing a named operator warranty under New York law after finding that there was no entrenched federal maritime 

law on point).

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National Union approved Mr. Bustamante as the Vessel’s captain on April 22, 2019. SOF ¶ 52.

7

In fact, Racso Bustamante explicitly testified that he was never the full-time captain of the Vessel,

SOF ¶ 51. In light of such a representation by Mr. Bustamante, it is questionable whether the 

Vessel even had a full-time captain between when Andrade left and when he ultimately came back 

after the loss.

Ultimately, however, Bustamante—whom National Union had approved as the full-time 

captain—was terminated as of the end of May of 2019. SOF ¶ 53. Then, at some point in early to 

mid-June, Mr. Maury offered Andrade the opportunity to come back as captain. SOF ¶ 54. Captain 

Andrade then ostensibly “started” on June 16, 2019—the first date appearing on the paystubs 

Leopard produced in discovery. SOF ¶ 55. The loss occurred three days later; Captain Andrade 

was not on board at the time. SOF ¶¶ 56-57. The captain who was onboard at the time, Jose 

Caballero, also testified that he was not the full-time captain of the Vessel. SOF ¶ 57.

Despite the “paper” start date, Captain Andrade could hardly have been considered the 

“full-time” captain on the date of the loss. Andrade went out of his way to contact National Union 

via email to confirm that “I was not the captain on board while the engine overheat and claim 

incident happened in June 2019.” SOF ¶ 58. In fact, when Captain Andrade first “came back” to 

the Vessel shortly before the loss, he testified that “I did not run the vessel or anything like that. I 

just came on board. And according to the mate’s information, there was a management company 

doing the regular maintenance, whatever they need to do, and that’s all I know so far.” SOF ¶ 60.

He “didn’t perform any particular job,” but remembered only that he “came back to see the mate 

and say hi and see the boat.” SOF ¶ 61. He also knew Leopard’s owner had planned a trip to the 

Bahamas, but Captain Andrade could not go because he was still finishing another job on another 

7 There is some inconsistency in the record about when precisely Mr. Bustamante was approved by National Union, 

but that inconsistency is not material for purposes of summary judgment.

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project and because he had a previously scheduled trip to Spain. SOF ¶ 62. He could not begin his 

employment as captain of the Vessel until those two items were dealt with. SOF ¶ 63. When asked 

“you did not begin your employment as captain until after you got back from Spain,” in July of 

2019, Captain Andrade responded “Correct.” SOF ¶ 64.

A very similar factual situation was considered by the Court in Ocean Reef. There, the 

policy’s captain warranty provided that the insured “employ a professional captain...Such captain 

shall be employed full time and approved by us.” Ocean Reef, 396 F. Supp. 3d at 1177 (emphasis 

original).

8 The court explained that where the subject captain was hired on a mere temporary basis 

and was not even in the state of Florida during his five-day tenure, he could not seriously be

considered full-time. Id. As noted above, both Captain Caballero and the Vessel’s owner admitted 

that Captain Caballero—the captain operating the Vessel at the time of the loss—was only a 

temporary captain. SOF ¶ 57. And even if Captain Andrade had ostensibly been hired three-days 

before the loss, he was not on board at the time of the loss, was not actually engaged in the work 

of a captain until July, and may not have even been in North America at the time. SOF ¶ 62.

In short, despite the fact that the first day of Captain Andrade’s pay period predated the 

loss (and by only 72 hours, at that), there is nothing to indicate that Captain Andrade actually was

the full-time captain of the Vessel at the time of the loss, including Captain Andrade’s own 

understanding of his role. The “mere availability to serve as a backup or assistant captain does not 

show—and, if anything, negates any contention—that he was employed as a full-time captain for 

the maintenance and care of the Vessel.” Serendipity at Sea, LLC v. Underwriters at Lloyd’s of 

8 As noted above, Ocean Reef is currently on appeal in the Eleventh Circuit. In Ocean Reef, the relevant choice-oflaw analysis was between federal maritime and Florida law. Id. at 1174. In that case, the difference was dispositive 

insofar as Florida law requires that for a breach of a marine insurance warranty to provide a defense to coverage, such 

breach must “increase[] the hazard by any means within the control of the insured.” § 627.409(2), Fla. Stat. The court’s 

conclusion that the warranty was breached was not appealed. Because, in this case, the effect of the breach of warranty 

is the same irrespective of which law applies, Ocean Reef remains highly instructive irrespective of its outcome in the 

Eleventh Circuit.

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London Subscribing to Policy No. 187581, No. 20-CV-60520-RUIZ/STRAUSS, 2021 WL 

1348435, at *5 (S.D. Fla. Feb. 5, 2021). The fact that Andrade was in another country at the time 

of the loss is a further strike against any full-time status. Id. at n.8 (“Whatever hypothetical 

questions Plaintiff posits about what it means to be a “full-time” captain, it certainly does not mean 

being “available” as a back-up captain when the boat is in another country for over a month with 

you never stepping foot on it.”). The Captain Warranty specifically provides that if the insured 

does not have a full-time captain employed, “then there will be no coverage under this policy.”

Because that warranty was violated, and because under either federal maritime or New York law 

the breach of a marine insurance warranty voids coverage irrespective of any causal relation, there 

is no coverage for the subject loss.

6.2. Even If Captain Andrade Was the Full-Time Captain, Leopard Failed 

to Notify National Union of the Change.

As noted above, there can be no serious contention that the Vessel had a full-time captain 

on June 19, 2019. But even if there were, the warranty was violated in another way. The Captain 

Warranty specifically provides that “if you change captains without reasonable notice and approval 

by us, then there will be no coverage under this policy.” SOF ¶ 5. As noted above, last captain 

whom National Union approved prior to the loss was Racso Bustamante, whose employment 

terminated at the end of May of 2019. SOF ¶¶ 53, 59. Leopard admits that the next time it notified 

National Union of a change in captain was June 24, 2019—five days after the loss, when it 

requested that the captain be changed to Andrade. SOF ¶¶ 59, 65. It never requested that Captain 

Caballero be approved at all. SOF ¶ 66.

9 As such, the Captain Warranty was violated and there is 

no coverage.

9 Strictly speaking, on June 24, Leopard only told their agent that the captain had changed. The agent did not refer the 

request to National Union until much later. But because, either way, the change request was not made until after the 

loss, it makes no difference.

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6.3. Even If Captain Andrade Were the Full-Time Captain, He Was Not 

Operating the Vessel at the Time of the Loss.

Finally, the Policy provides that the full-time captain “shall be employed full time to 

operate and maintain the insured yacht[.]” SOF ¶ 5. There is no dispute that, even if Captain 

Andrade were the full-time captain, he was not in command of the Vessel at the time of the loss. 

SOF ¶¶ 11, 57-58. Nor is there any dispute that Captain Caballero-who was—in command of the 

Vessel, had not been approved. SOF ¶¶ 11, 66.

Under general principles of contract interpretation under New York law, effect and 

meaning must be given to every term of the contract, and reasonable effort must be made to 

harmonize all of its terms. Maven Techs., LLC v. Vasile, 46 N.Y.S.3d 720, 722 (N.Y. App. Div. 

2017). The Policy requires—not just that the insured hire a full-time captain—but that the insured 

hire a full-time captain “to operate” the vessel. SOF ¶ 5; cf. St. Paul Fire & Marine Ins. Co. v. 

Matrix Posh, LLC, No. 10-CV-4776 (SJF)(WDW), 2011 WL 13377651, at *6 (E.D.N.Y. Nov. 22, 

2011) (holding that a warranty providing only that an insured “employ a professional captain” and 

that such captain be employed “full time” did not mean that only the captain could operate the 

vessel). In context, the only reasonable construction of the word “to” in the warranty is “for the 

purpose of.” Allowing the insured to have someone other than the full-time captain operate the 

vessel would read the requirement that a full-time captain be “employed full time to operate...the 

insured yacht and approved by us” right out of the Policy. It would allow the insured to change 

the identity of the captain on a whim; the insurer would have essentially no idea who was operating 

an extremely valuable piece of heavy machinery. Such a construction would be patently 

unreasonable. As such, because the insured breached the warranty by having someone other than 

the approved captain operating the Vessel at the time of the loss, there is no coverage.

7. Conclusion

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For the reasons discussed above, there is no coverage for this loss. The loss was caused by 

the substantial build-up of oysters in the starboard heat exchanger, which reduced the raw-water 

flow through the heat exchanger by as much as 80%. No other cause of loss has been identified, 

and the Plaintiff’s own corporate representative has affirmed that this marine life was the cause of 

the loss. Because the Policy expressly excludes “loss, damage, claim or expense caused directly 

or indirectly, in whole or in part by...marine life,” there is no coverage.

Secondly, the Policy’s Captain Warranty required both that a full-time captain be employed 

to maintain and operate the Vessel, and that changes in captain must be approved by National 

Union. At the time of the loss, the Vessel had no full-time captain. But even if it did, the change 

was not reported to National Union until after the loss. Either violation voided coverage, and there 

is no coverage for the loss.

WHEREFORE, National Union respectfully requests that this Court grant its Motion for 

Summary Judgment, dismiss the Plaintiff’s case with prejudice, and grant any further relief the 

Court deems just and appropriate.

Dated: April 19, 2021.

Respectfully submitted,

DAVANT LAW, P.A.

Attorneys for National Union

12 Southeast 7th Street, Suite 605

Fort Lauderdale, FL 33301

Telephone: (954) 414-0400

By: /s/Aaron M. Dmiszewicki

Charles S. Davant

Florida Bar No. 15178

csd@davantlaw.com

Aaron M. Dmiszewicki

Florida Bar No. 111455

amd@davantlaw.com

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