FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 February 2, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-13100

Non-Argument Calendar

________________________

D. C. Docket No. 03-60748-CV-ASG

TIMOTHY FENBY, 

Plaintiff-Counter-Defendant, 

MARYANNE FENBY, 

his wife, 

Plaintiff, 

versus 

M/V THREE D OF GUERNSEY, 

her engines, tackle, apparel, furniture, equipment 

and all other appurtenances thereto appertaining 

and belonging, 

Defendant-Third-Party-Plaintiff, 

BURLEY MARINE LIMITED, 

a Guernsey corporation, 

Third-Party-Plaintiff-Counter-Claimant-Appellant, 
2

versus 

CERTAIN UNDERWRITERS AT LLOYD'S LONDON, 

subscribing to Policy Number 02YP0216, 

Third-Party-Defendant-Appellee, 

CABLE MARINE, INC., 

a Florida corporation, et al., 

Third-Party-Defendants. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(February 2, 2007)

Before BIRCH, DUBINA and PRYOR, Circuit Judges.

PER CURIAM:

Burley Marine Limited, owner of a yacht, appeals the declaratory judgment

entered in favor of Certain Underwriters at Lloyd’s London that denied the

existence of coverage, under a contract of marine insurance. Burley Marine owns

the M/V Three D of Guernsey, which was insured by Lloyd’s when it ran aground

in Ft. Lauderdale, Florida, in April 2003. The Three D was taken for repairs to
3

Cable Marine, where Timothy Fenby was injured while working on the yacht. 

Burley Marine sought a declaratory judgment that the insurance policy on the

Three D required Lloyd’s to pay for the repairs to the yacht and defend a lawsuit

brought by Timothy Fenby and his wife. After a bench trial, the district court

entered judgment in favor of Lloyd’s. We affirm.

The relevant facts are taken from the findings of the district court. On May

23, 2002, Lloyd’s issued an insurance policy on the Three D that provided

coverage for one year, and that policy contained two clauses relevant to this

appeal. First, the policy limited coverage to certain navigational limits, subject to a

“held covered” clause: “Mediterranean Waters . . . or held covered at rate and

terms to be agreed subject to notice being given as soon as practicable.” A “held

covered” clause provides coverage in certain circumstances when a breach of

warranty occurs. Hilton Oil Transp. v. Jonas, 75 F.3d 627, 629-30 (11th Cir.

1996). Second, the policy included the following “agreed paid for loss” clause:

“Agreed pay for loss or damage to the vessel when caused by the breach of any

warranty contained in this policy by a paid captain and/or crew members or a

charterer provided . . . such breach is not committed with the consent, approval or

knowledge of the assured.”

The parties later negotiated changes to the navigational limits for a limited
4

term of coverage. In the fall of 2002, George Downing, the beneficial owner of

Burley Marine, decided to transport the Three D to Martinique, an island in the

West Indies, for the winter season. Downing had his insurance broker obtain from

Lloyd’s an endorsement to the insurance policy, which provided that, “[u]pon safe

arrival in Martinique, cruising is restricted to Caribbean Waters until April 2003.” 

On March 31, 2003, Lloyd’s issued a second endorsement, which provided that

“the cruising range is extended to include Caribbean waters up to and including

April 16, 2003.” On April 10, 2003, Lloyd’s issued a third endorsement, which

provided that “the cruising range is extended to include Caribbean waters up to an

including 28th April 2003.” Neither the policy nor the endorsements defined the

term “Caribbean Waters.”

On April 14, 2003, the Three D ran aground on a beach in Ft. Lauderdale,

Florida. It was piloted by Kaj Collins, a captain hired by Trevor Woodman, the

captain hired by Downing to pilot the yacht. The Three D was taken to Cable

Marine, where Fenby was injured. Fenby and his wife brought a lawsuit against

various entities, including Burley Marine. On April 22, 2003, Lloyd’s issued a

final endorsement, which provided “coverage is extended to include cruising in

Florida waters.” 

Burley Marine filed a third-party complaint for a declaratory judgment
5

against Lloyd’s regarding coverage for damage to the vessel and injuries to Fenby. 

Burley Marine presented three arguments. First, it contended that the navigational

limits had not been breached, because the phrase “Caribbean Waters” is ambiguous

and should be construed against Lloyd’s. Second, it argued, in the alternative, that

the “held covered” provision of the insurance policy provides coverage. Finally, it

asserted that the “agreed pay for loss” clause provides coverage.

The district court entered a declaratory judgment in favor of Lloyd’s. The

district court applied Florida law in interpreting the contracts of marine insurance,

see Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310, 321, 75 S. Ct. 368,

374 (1955), and rejected all three arguments of Burley Marine. 

Our standard of review is settled: We review the legal conclusions of the

district court de novo and the findings of fact for clear error. Mitchell v.

Hillsborough County, 468 F.3d 1276, 1282 (11th Cir. 2006).

Burley Marine first contends that the Three D did not sail beyond the

navigational limits covered by the insurance policy when it ran aground on a beach

in Ft. Lauderdale. Burley Marine asserts that the phrase “Caribbean Waters” is

ambiguous and should be construed against Lloyd’s. We disagree.

Contrary to the assertion of Burley Marine, “‘[t]he mere failure to provide a

definition for a term involving coverage does not necessarily render the term
6

ambiguous.’” Health Options, Inc. v. Kabeller, 932 So. 2d 416, 420 (Fla. Dist. Ct.

App. 2006) (quoting Jefferson Ins. Co. of N.Y. v. Sea World of Fla., Inc., 586 So.

2d 95, 97 (Fla. Dist. Ct. App. 1991)). “Ambiguity is not invariably present when

analysis is required to interpret the policy.” Gulf Tampa Drydock Co. v. Great Atl.

Ins. Co., 757 F.2d 1172, 1175 (11th Cir. 1985) (citing Blue Shield of Fla., Inc. v.

Woodlief, 359 So. 2d 883, 884 (Fla. Dist. Ct. App. 1978)). “Under Florida law,

the words utilized in an insurance policy are to be given their plain and ordinary

meaning.” Rigby v. Underwriters at Lloyd’s, London, 907 So. 2d 1187, 1188 n.1

(Fla. Dist. Ct. App. 2005).

The phrase “Caribbean Waters” is not ambiguous in this circumstance. 

Under the plain and ordinary meaning of the words, “Caribbean Waters” do not

include waters immediately off the coast of Ft. Lauderdale, Florida. “Caribbean

Waters” are waters of or relating to the “Caribbean,” and The Oxford English

Dictionary defines the word “Caribbean” as an adjective or noun “applied to

certain of the West Indian isles, and to the sea between them and the [South and

Central American] mainland.” The Oxford English Dictionary 899 (2d ed. 1989)

(entry for “Carib”). Ft. Lauderdale is not a West Indian isle, and between Ft.

Lauderdale and the Caribbean Sea are more than 200 miles of the Atlantic Ocean

and the island of Cuba. See 14 The New Encyclopedia Britannica 304 (15th ed.
7

2003) (entry for “Caribbean Sea”) (describing the Caribbean Sea as bounded to the

north by the islands of Cuba, Hispaniola, Jamaica, and Puerto Rico).

Second, Burley Marine argues that, even if the Three D sailed beyond the

navigational limits covered by the insurance policy and the endorsements, the

“held covered” provision of the policy provides coverage. We disagree. A “held

covered” clause provides coverage when a breach of warranty occurs, but only if

the breach was not willful. Hilton Oil Transp., 75 F.3d at 630. The district court

found that Downing knowingly and intentionally sent the Three D out of

“Caribbean Waters.”

Burley Marine argues that, contrary to the finding of the district court,

Downing did not know that the waters immediately off the coast of Ft. Lauderdale

were outside “Caribbean Waters,” but Burley Marine fails to provide any evidence

to support this assertion. “If the appellant intends to urge on appeal that a finding

[of the district court] . . . is unsupported by the evidence or is contrary to the

evidence, the appellant must include in the record a transcript of all evidence

relevant to that finding . . . .” Fed. R. App. P. 10(b)(2). Because Burley Marine

failed to comply with this rule, we cannot review the alleged evidentiary error and

must affirm the finding of the district court. Loren v. Sasser, 309 F.3d 1296, 1304

(11th Cir. 2002).
8

Finally, Burley Marine contends that the “agreed pay for loss” clause of the

insurance policy provides coverage. Lloyd’s “[a]greed [to] pay for loss or damage

to the vessel when caused by the breach of any warranty contained in this policy by

a paid captain and/or crew members or a charterer provided . . . such breach is not

committed with the consent, approval or knowledge of the assured.” Burley

Marine argues that, even if navigational limits were breached, the breach was not

committed with the consent, approval, or knowledge of Downing. 

We disagree. The district court found that Downing approved and ordered

that the Three D be sailed beyond the navigational limits covered by the insurance

policy and endorsements. Although Burley Marine contests this finding, it again

offers no evidence to support its assertion. Without a transcript of the trial to

review, we must affirm the finding of the district court.

The declaratory judgment of the district court is

AFFIRMED.