Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-31206

BAYOU STEEL CORPORATION; NEW YORK MARINE & GENERAL

INSURANCE COMPANY

Plaintiffs-Appellants

v.

EVANSTON INSURANCE COMPANY; NATIONAL UNION FIRE

INSURANCE COMPANY OF PITTSBURGH, PA.

Defendants-Appellees

Appeal from the United States District Court

 For the Eastern District of Louisiana. 

No. 2:07-cv-1034

Before KING, DAVIS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

In this case we consider the meaning and scope of an endorsement to an

insurance policy excluding coverage for claims or suits against an insured

brought “pursuant to” the Longshoremen and Harbor Worker’s Compensation

Act (“LHWCA”). More particularly, we consider whether the exclusion of

United States Court of Appeals

Fifth Circuit

F I L E D

November 10, 2009

Charles R. Fulbruge III

Clerk
No. 08-31206

2

coverage for claims brought pursuant to the LHWCA applies to a third party

maritime tort suit brought against the insured by an injured worker covered by

the LHWCA. We conclude that the exclusion does not apply and reverse the

order of the district court, reaching a contrary conclusion. 

I.

In 2002, Bayou Steel Corporation (“Bayou”) engaged Memco Barge Lines

under a classic contract of affreightment to transport steel bundles by barge

from Bayou’s facility in La Place, Louisiana to Bayou’s facility on the Calumet

River in Illinois. Bayou loaded the barge in Louisiana and hired Kindra Marine

Terminal, Inc., a stevedoring company, to unload the barge upon arrival in

Illinois. While unloading the barge, Ryan Campbell, a Kindra employee,

suffered substantial injuries. As a result, Campbell filed suit against Bayou in

Illinois state court. Bayou’s primary wharfinger insurer accepted coverage and

defense for Campbell’s claims against Bayou. However New York Marine &

General Insurance Company (“NYMAGIC”), Bayou’s excess wharfinger insurer,

Evanston Insurance Company (“Evanston”), Bayou’s primary general liability

insurer, and National Union Fire Insurance Company of Pittsburgh

(“NUFICPA”), Bayou’s excess insurer, all initially denied coverage.

Faced with Campbell’s claim for damages, Bayou brought suit against all

of its insurers who had denied coverage of Campbell’s claim. On March 23, 2007,

NYMAGIC agreed to fund a substantial portion of the settlement between

Campbell and Bayou in exchange for Bayou’s dismissal of all of its claims

against NYMAGIC. NYMAGIC also took an assignment from Bayou of its

claims against the remaining insurers who continued to deny coverage.

Following Bayou and NYMAGIC’s agreement, the parties were realigned and

NYMAGIC joined Bayou as plaintiff against defendant appellees. In October of
No. 08-31206

 As an excess insurer, NUFICPA’s policy followed the form of the Bayou’s primary 1

policies. As such, coverage under Evanston’s policy necessarily implies coverage under

NUFICPA’s policy.

3

2008, the parties filed opposing Motions for Summary Judgment and presented

the coverage issues to the district court 

Evanston’s denial of coverage was based on a exclusions from its policy.

1

which stated:

This insurance does not apply to “Bodily Injury”, “Property

Damage”, “Personal Injury”, or “Advertising Injury”, imposed upon

you or assumed by you under contract with respect to claims made

or suits brought against you or any indemnitee pursuant to the

“United States Longshoremen & Harbor Workers Compensation

Act” (Title 33 USCA, Sections 901 - 950) including any amendments

or revisions thereto. 

Record, pp. 149-155. Before the district court, Evanston contended that

because of both Campbell’s status as a longshoreman and the nature of the

claims he asserted against Bayou, Campbell’s claim or suit could only have been

brought pursuant to section 905(b) or section 933 of the LHWCA. Accordingly,

Evanston argued, Campbell’s claims were “pursuant to” the LHWCA. Bayou,

however, maintained that Campbell’s assertion against Bayou was not a claim

or suit brought “pursuant to” the LHWCA but was a claim grounded in

negligence under the general maritime law.

The district court granted Evanston’s Motion for Summary Judgment,

holding that Campbell’s claims against Bayou were pursuant to the LHWCA and

thus Evanston’s policy provided no coverage to Bayou. 

Bayou appealed.

II.

This court reviews a district court’s grant of summary judgment de novo,

applying the same standards as the district court. Kimberly-Clark Corp. v.

Factory Mut. Ins. Co., 566 F.3d 541 (5th Cir. 2009). A party is entitled to
No. 08-31206

4

summary judgment only if “the pleadings, the discovery and disclosure materials

on file, and any affidavits show that there is no genuine issue as to any material

fact and that the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56.

III.

Bayou argues first that Evanston’s policy exclusion for suits brought

“pursuant to” the Longshoremen & Harbor Worker’s Compensation Act, 33

U.S.C. § 901 et seq does not exclude coverage for negligence claims brought by

longshoremen against third parties under 33 U.S.C. § 933.

In finding that the exclusion did apply in this case, the district court relied

on our decision in the coverage case of Beaumont Rice Mill, Inc. v. Mid-American

Indemnity Insurance Co., 948 F.2d 950 (5th Cir. 1992). In Beaumont, MidAmerican Indemnity Insurance Company (MAIIC) issued an excess CGL policy

to Beaumont Rice Mill. As in this case, the plaintiff in the underlying suit was

a longshoreman not employed by Beaumont who was injured when a sack of rice

fell on him. The longshoreman brought an action against Beaumont in

negligence and Beaumont asserted a third party demand against MAIIC for

coverage. MAICC, however, refused coverage based on an exclusion in its policy

with Beaumont. The exclusion stated that MAICC will not insure, “any losses

arising out of injuries covered under the United States Longshore and Harbor

Workers Act, Federal Employees Liability Act, Maritime or Admiralty Law

whether brought by the injured employee or any third party.” Id at 951

(emphasis added). 

Although the facts in Beaumont are similar to those in this case, the

exclusion at issue in Beaumont is very different from the exclusion in Evanston’s

policy. Evanston’s policy excludes coverage for “claims made or suits brought

against [Bayou] pursuant to the LHWCA” while MAICC’s exclusion denied

coverage for “any losses arising out of injuries covered under the LHWCA.”
No. 08-31206

5

(emphasis added). In Beaumont, the injured longshoreman’s injuries were

covered under the LHWCA. Indeed, he was receiving LHWCA benefits from his

employer after the accident. Under the plain language of the exclusion in

Beaumont, then, the court had no occasion to consider the nature of the injured

longshoreman’s claim against Beaumont. The fact that his injuries were covered

under the LHWCA triggered the exclusion. But in this case, we must look to the

nature of Campbell’s claims against Bayou rather than looking at whether his

injuries were covered under the LHWCA. The exclusion contained in Beaumont

is therefore distinguishable from the exclusion we must interpret in Evanston’s

policy.

An insurance policy is a contract subject to the general rules of contract

interpretation set forth in the Louisiana Civil Code. Succession of Fannaly v.

Lafayette Ins. Co., 805 So.2d 1134, 1137 (La. 2002). In the interpretation of an

insurance policy, our responsibility is to determine the common intent of the

parties. La. Civ. Code art. 2045. To ascertain this common intent, courts begin

their analysis with a review of the words in the insurance contract. Succession

of Fannaly v. Lafayette Ins. Co., 805 So.2d 1134, 1137 (La. 2002) citing La. Civ.

Code art. 2047. Accordingly, the proper inquiry in determining whether

Evanston’s policy excludes coverage for the damages paid to Mr. Campbell must

commence with the plain language of the exclusion. 

The exclusion in this case bars “claims made or suits brought” against

Bayou “pursuant to” the LHWCA. The LHWCA acknowledges three types of

claims available to a covered longshoreman: a claim for compensation against

a covered employer under § 904, a tort claim against a “vessel” under § 905(b),

and a tort claim against third parties under § 933. In the proceedings below,

Evanston acknowledged that Bayou was not Campbell’s employer and Campbell

asserted no claims for compensation against Bayou under § 904 of the LHWCA.

Record, p.861. At oral argument, counsel for appellees conceded that Campbell,
No. 08-31206

 G. Gilmore & C. Black, The Law of Admiralty , §6–4, p.278 (1975) (“If the

2

circumstances of his injury constituted a maritime tort, the harbor worker, like any other

person injured by or on board a ship, could bring an action in personam against the shipowner

or in rem against the ship, or, under the saving to suitors clause, could proceed outside

admiralty.” ) See e.g. Southern Pac. Co v. Jensen , 244 U.S. 205, 217 (1917) (decided before the

passage of the LHWCA and holding that the deceased stevedore’s claim against his employer

arose under admiralty jurisdiction: “The work of a stevedore, in which the deceased was

engaging, is maritime in its nature; his employment was a maritime contract; the injuries

which he received were likewise maritime; and the rights and liabilities of the parties in

connection therewith were matters clearly within admiralty jurisdiction); See also Atlantic

Transport Co. v. Imbrovek, 234 U.S. 52, 62 (1914) where a stevedore brought claims for slander

against his employer and a third party: (“The appropriate basis of all admiralty jurisdiction,

whether in contract or tort, is the maritime nature of the transaction or event . . .”).

6

in his lawsuit against Bayou, did not assert a claim for vessel negligence under

§ 905(b). Therefore, the issue narrows to whether Campbell’s claim or suit

against Bayou for third party negligence–a claim recognized in § 933–is a claim

brought “pursuant to” the LHWCA.

The primary purpose behind the creation of the LHWCA was to provide

a compensation scheme for longshoremen and other land based workers working

on or near vessels who, because of the maritime character of their employment,

were not covered under state worker’s compensation statutes. Admiralty and

Maritime Law, Thomas J. Schoenbaum 7-1. Before the passage of the LHWCA,

maritime workers could assert a general maritime law claim against any

party–their employers and third parties– so long as their claims properly

satisfied the requirements of admiralty jurisdiction.2

In § 904, the LHWCA makes it clear that the compensation remedy is the

longshoreman’s exclusive remedy against his employer; yet the Act also makes

it clear that the longshoremen’s historic general maritime law claim against

third parties is unaffected by § 904. 33 U.S.C. § 933(a) reads: 

If on account of a disability or death for which compensation is

payable under this Act, the person entitled to such compensation

determines that some person other than the employer or a person

or persons in his employ is liable in damages, he need not elect
No. 08-31206

See also Perez v. Arva Nat’l Shipping Line, Ltd., 468 F.Supp. 799, 802 (S.D.N.Y. 1979), 3

aff’d mem., 622 F.2d 575 (2d Cir. 1980), aff’d sub nom. Rodriguez v. Compass Shipping Co.,

451 U.S. 596 (1981)“[§ 933] is intended to provide covered employees the benefits of workmen’s

compensation, without depriving them of the right to be compensated for their injuries by

negligent third parties, or eliminating the incentive for third parties to provide longshoremen

a safe place to work..

7

whether to receive such compensation or to recover

damages against such third person.

(emphasis added). In Norfolk Shipbuilding & Drydock Corp. v. Garris, the 3

United States Supreme Court, in discussing the nature of the longshoreman’s

claim against third parties, held that 33 U.S.C. § 933(a) “expressly preserves all

claims against third parties.” 532 U.S. 811, 818 (2001) (citations omitted)

(emphasis added). This court has also recognized that a person entitled to

compensation under the LHWCA can still pursue a negligence claim against a

third party and that this claim is not created by 33 U.S.C. § 933(a). McLaurin

v. Noble Drilling Inc., 529 F. 3d 285, 292 (5th Cir. 2008) (citations omitted). In

light of the plain language of the statute and the holdings of these cases, we

therefore read § 933 as having one purpose: to make it clear that the

longshoreman’s historic maritime tort action against third parties was

unaffected by the provisions of the LHWCA Accordingly, Campbell’s claim or

suit against Bayou is unaffected by § 933 of the LHWCA and thus cannot be

characterized as a claim or suit “pursuant to” the LHWCA Evanston’s

exclusion, therefore, does not apply and Evanston and NUFICPA must provide

coverage to Bayou consistent with their respective policies.

IV.

Appellee NUFICPA argues that should this court find Evanston’s

exclusion inapplicable to this case, NYMAGIC’s subrogation claim fails as a

matter of law. Specifically, appellees maintain that since NYMAGIC’s payment

of Campbell’s claims was purely voluntary, NYMAGIC is not subrogated to
No. 08-31206

 The relevant language states that NYMAGIC received from Bayou: “The assignment, 4

transfer, and conveyance of “any and all rights, movable or immovable, tangible or intangible,

that [Bayou] possessed as plaintiff in the litigation to pursue indemnification from the

remaining general liability and excess umbrella insurers for payment up to the actual amount

paid by NYMAGIC on behalf of Bayou Steel.” Record, p. 801. 

 As the Civil Code points out, there is no distinction between assignment of rights and 5

conventional subrogation by the obligee. La. Civ. Code art 1827. cmt. (a). The Civil Code

defines conventional subrogation by the obligee in art. 1827: “An obligee who receives

performance from a third person may subrogate that person to the rights of the obligee, even

without the obligor’s consent. That subrogation is subject to the rules governing obligation of

rights.” 

 Subrogation can be conventional or legal. In conventional subrogation by the obligee, 6

an obligee who receives performance from a third person may subrogate that person to the

rights of the obligee, even without the obligor’s consent. 

 Bayou’s rights and causes of action it has against its insurers who refused coverage 7

are not strictly personal. The Civil Code distinguishes between strictly personal and heritable

obligations. Strictly personal obligations are “patrimonial in nature [but] are so closely

connected with the personality of the debtor that they cannot be exercised by third persons.

A.N. Yiannopoulos, Louisiana Civil Law Treatise § 197 (4th ed. 2001). Examples of strictly

personal obligations are obligations to fulfill a marriage engagement, contracts for dancing

lessons, and recording contracts between a musician and a record company. La. Civ. Code art.

1766 cmt. (c). See King v. Illinois Nat. Ins. Co., 9 So.3d 780, 791 (La. 2009) (Kimball, J.

dissenting) (“The obligation of an insurer to pay damages to its insured for breach of its duties

8

Bayou’s rights and the assignment Bayou executed in NYMAGIC’s favor is

ineffective. We disagree. 

When NYMAGIC funded a substantial portion of the settlement between

Bayou and Campbell, they received an assignment from Bayou. Since the 4

Release and Assignment Agreement between NYMAGIC and Bayou makes clear

that the parties consented to be governed by Louisiana law, NYMAGIC has

acquired these rights under the law of conventional subrogation and assignment

of rights. Record, p. 802. 

5

Subrogation is “the substitution of one person to the rights of another.”6

The Louisiana Civil Code allows great contractual freedom in the assignment of

rights, stating that all rights–save for strictly personal rights–may be assigned.

La. Civ. Code art. 2642. Thus, regardless of whether NYMAGIC is subrogated 7
No. 08-31206

is not uniquely personal to the insurer or the insured.”). 

9

to Bayou’s rights as a matter of law, the assignment Bayou executed in

NYMAGIC’s favor effectively transferred Bayou’s rights against Evanston and

others to NYMAGIC. Accordingly, NYMAGIC’s claims against appellees are

proper.

V.

For the reasons stated above, we reverse the judgment of the district court

and remand this case for further proceedings if necessary and for entry of

judgment consistent with this opinion.

REVERSED AND REMANDED.