FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUG 22, 2008

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-14446

Non-Argument Calendar

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D.C. Docket No. 06-00708-CV-C-1

GREAT SOUTHERN WOOD PRESERVING, INC.,

Plaintiff-Appellant, 

versus

AMERICAN HOME ASSURANCE COMPANY,

AIG,

AMERICAN INTERNATIONAL UNDERWRITERS

CORPORATION,

AMERICAN INTERNATIONAL MARINE AGENCY,

 Defendants-Appellees.

 

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Appeal from the United States District Court 

for the Middle District of Alabama

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(August 22, 2008)

Before EDMONDSON, Chief Judge, TJOFLAT and BLACK, Circuit Judges.
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PER CURIAM:

Plaintiff-Appellant Great Southern Wood Preserving, Inc. (“Great

Southern”) appeals the grant of summary judgment in favor of DefendantAppellee American Home Assurance Company (“American Home”) on Great

Southern’s insurance claims. No reversible error has been shown; we affirm.

Great Southern imports raw lumber which it chemically treats at one of its

domestic treatment facilities and then resells to retail and independent business

customers. The imported lumber is delivered by ship and discharged at ports in

the United States. American Home issued Great Southern a Marine Open Cargo

Insurance Policy effective 2 June 2005 (the “Policy”). Two shipments of raw

lumber received by Great Southern at the Port of Gulfport in August 2005 are at

issue in this case.

Because trucking lanes are limited at the Port of Gulfport, the logistics of

picking up a large load of cargo is difficult. Great Southern entered into a

warehouse lease with the Mississippi State Port Authority to allow the short-term

storage by Great Southern of lumber discharged at the Port of Gulfport. On 3

August 2005, the Kestral Arrow arrived at Gulfport bearing 4,056 packs of lumber

for Great Southern. On 8 August 2005, Great Southern began transporting these

packs to its treatment facilities. On 25 August 2005, the Sanko Stream arrived at
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Gulfport bearing approximately 100 tractor-trailer loads of raw lumber for Great

Southern. On 29 August 2005, Hurricane Katrina hit the Port of Gulfport. The

warehouse in which Great Southern stored its shipments was destroyed. Great

Southern suffered the loss of the entire Sanko Stream shipment; also lost was that

portion of the Kestral Arrow shipment – 28 per cent – that had not yet been

transported from the warehouse.

Great Southern filed a claim under the Policy for the lost lumber. American

Home denied the claim contending that coverage under the Policy had ceased

before the time of loss. In the light of that denial, Great Southern brought suit

asserting claims of breach of contract and bad faith.

The Policy contained a “warehouse-to-warehouse” provision that is

oftentimes included in marine cargo insurance:

This insurance attaches from the time the goods leave the

Warehouse and/or Store at the place named in the

Declaration and/or Certificate for the commencement of

transit and continues during the ordinary course of

transit, including customary transshipment, if any, until

the goods are discharged overside from the overseas

vessel at the final port. Thereafter the insurance

continues whilst the goods are in transit and/or awaiting

transit until delivered to the final warehouse at the

destination named in the policy or until the expiry of 15

days (or 30 days, if the destination to which the goods

are insured is outside the limits of the port) whichever

shall first occur.
 Great Southern concedes that it sometimes sells raw lumber to other manufacturers directly from 1

the Gulfport warehouse.

 Although the Policy references the final warehouse at the destination named in the policy, the 2

Policy named no such destination. 

 As the district court explained, although diversity jurisdiction applied, the suit also was 3

cognizable under admiralty jurisdiction byvirtue of the maritime contract at issue. “When a contract

is a maritime one, and the dispute is not inherently local, federal law controls the contract

interpretation.” Norfolk Southern Railway Co. v. Kirby, 125 S.Ct. 385, 392 (2004).

4

According to Great Southern, the lumber it imported into Gulfport had as its

final destination one of Great Southern’s treatment facilities; so, under the 1

warehouse-to-warehouse clause, the Policy insured the cargo until the cargo was

delivered to a Great Southern treatment facility (assuming – as is the case here –

the 30-day period had not yet expired). Great Southern maintained that the whole

2

phrase in the Policy “in transit and/or awaiting transit until delivered to the final

warehouse at the destination named in the policy” was ambiguous; and “Alabama

law instructs that ambiguities in insurance contracts are to be interpreted in favor

of the insured.” Twin City Fire Ins. Co., Inc. v. Ohio Cas. Ins. Co., Inc., 480 F.3d

1254, 1264 (11 Cir. 2007). th

But the district court recognized no ambiguity: warehouse-to-warehouse

clauses are standard throughout the marine insurance industry; the contract 3

language had a settled meaning in the industry. And under that settled meaning,
5

once the insured exercised dominion and control over the cargo it no longer was in

transit and coverage ceased. We agree.

Lumber & Wood Products, Inc. v. New Hampshire Ins. Co., 807 F.2d 916

(11 Cir. 1987), involved similar facts. A shipment of lumber of the insured th

reached the private dock of a third-party consignee in good order. The lumber was

off-loaded and had to be moved about ninety feet to be placed in the consignee’s

warehouse. The consignee had responsibility for and control over the lumber once

it was off-loaded from the vessel; and it had a practice of sometimes selling some

of the off-loaded lumber directly from its dock. Because an earlier shipment

occupied the warehouse space at the dock, the lumber remained on the dock

outside the warehouse; a hurricane came through and damaged the exposed

lumber. At issue was whether the lumber was “in transit” within the meaning of

the warehouse-to-warehouse clause. 

We determined that, once the consignee “exercised dominion and control

over the lumber in storing and processing on its dock, coverage under the policy

expired;” “a transit policy of insurance should not be stretched or tortured to

provide coverage for losses which take place after delivery at the consignee’s

facility.” Id. at 920.
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As was the case with the consignee in Lumber & Wood Products, Great

Southern exercised dominion and control over the lumber once it was off-loaded

from the vessel and placed in the warehouse space leased at the Port of Gulfport. 

According to the deposition testimony of Great Southern’s import manager, he and

other Great Southern employees made all decisions on the future destination for

the temporarily-stored lumber. The warehouse operated as a staging area. 

Inventory levels and other supply and demand considerations were weighed by

Great Southern’s inventory management team to determine the Great Southern

facility to which the lumber would be transported. And, again as was the case

with the consignee in Lumber & Wood Products, from time to time Great Southern

sold lumber directly from the Gulfport warehouse to other manufacturers. The

district court concluded correctly that – as a matter of law – Great Southern

exercised dominion and control over the lumber once it was off-loaded at the Port

of Gulfport; at that point, for purposes of the warehouse-to-warehouse clause, the

lumber had reached it “final warehouse” and “transit” had ceased.

Great Southern argues that the lumber off-loaded from the Sanko Stream

could not be under Great Southern’s dominion and control because the United

States Department of Agriculture (“USDA”) had not as yet cleared and released

that lumber when the hurricane hit. Federal regulations restrict imported lumber
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to the port of entry until a USDA inspector affirms that the regulated article is in

compliance with applicable regulations. See 7 C.F.R. § 319.40-9. According to

Great Southern, the USDA hold on the Sanko Stream lumber prevented Great

Southern from exercising custody and control; the lumber consequently, was still

“in transit” for insurance purposes.

 The district court concluded – and we agree – that the restrictions imposed

by the USDA regulations did not annul the dominion and control exercised by

Great Southern over the goods held exclusively in its possession. A government

hold on goods in the possession, custody and control of an insured does not render

the goods “in transit” for purposes of insurance coverage. See Fireman’s Fund

Ins. Co. v. Service Trans. Co., 466 F.Supp. 934 (D.C. Md. 1979) (rejecting claim

that coffee shipment that was subject to a Federal Drug Administration hold was

“in the ordinary course of transit” when it was destroyed by fire at trucking

company’s terminal).

For the reasons stated by the district court, Great Southern’s bad faith claim

is without merit.

AFFIRMED.