* 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. 07-30110

In Re: In the Matter of: ELEVATING BOATS LLC, as owner of the A C

Brown Elevator praying for Exoneration from or Limitation of Liability 

-------------------------------------------------

ELEVATING BOATS LLC,

Petitioner - Appellant, 

v.

DEVON LOUISIANA CORP, formerly known as Ocean Energy Inc, 

Claimant - Appellee. 

Appeal from the United States District Court for the

Eastern District of Louisiana 

2:03-CV-3259

Before GARWOOD, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

This appeal involves a maritime contract dispute between appellant

Elevating Boats, L.L.C. (“Elevating Boats” or “the Owner”), the owner of the

M/V A.C. BROWN ELEVATOR, and the vessel’s time charterer, appellee Devon

United States Court of Appeals

Fifth Circuit

F I L E D

June 13, 2008

Charles R. Fulbruge III

Clerk
No. 07-30110

2

Louisiana Corp. (“Devon” or “the Charterer”). Elevating Boats challenges the

district court’s grant of summary judgment to Devon and award of $250,000 in

damages based on Elevating Boats’ breach of its alleged obligation to list Devon

as an additional insured on its protection and indemnity (“P & I”) insurance

policy. We AFFIRM the judgment of the district court. 

I

The case underlying this appeal arose from an allision that occurred while

Devon was the vessel’s time charterer. Four Devon subcontractors were injured

in the allision and filed suit against Elevating Boats and Devon. Elevating

Boats and Devon each settled with all of the plaintiffs. The last plaintiff settled

on the first day of trial. 

After all of the plaintiffs’ claims were settled, a single issue remained in

the case. Devon contended that Elevating Boats breached an obligation under

the parties’ Blanket Charter Agreement (“the Agreement”) to list Devon as an

additional insured on Elevating Boats’ P & I policy. According to Devon, because

Devon could not rely on Elevating Boats’ insurance, Devon was forced to use its

own insurance to cover the costs of its defense and settlement. Devon paid a

$250,000 insurance deductible to cover the defense and settlement of the case.

Devon sought to recover that amount from Elevating Boats. 

The pertinent sections of the Agreement are as follows. First, the

Agreement has an indemnity provision. The relevant portion of the indemnity

provision, contained in paragraph 19(c), provides: “OWNER and CHARTERER

each agree to indemnify and hold each other harmless from and against any cost

and expenses resulting from loss, damage or personal injury to any third party

to the extent of such indemnifying party’s negligence in causing such loss,

damage or personal injury.” The parties do not dispute that each of the plaintiffs
No. 07-30110

3

was a “third party” for the purposes of this provision and that subsection (c)

therefore applies.

The Agreement also contains a provision concerning the types of insurance

that each party must obtain. Paragraph 26 of the Agreement provides in

relevant part: 

CHARTERER and OWNER shall procure and maintain in effect, at

their own expense, with reliable insurance companies authorized to

do business in the state or states in which OWNER is to render

Charter Services, insurance coverage to support the indemnities

provided for herein, provided, however, that OWNER’S coverage

shall be of the types and with limits not less than those set forth in

Exhibit “A” attached hereto. . . . OWNER shall have the right, upon

at least thirty (30) days prior written notice to CHARTERER, to

elect self-insurance to support the indemnities provided for herein.

In the event OWNER serves notice to elect self-insurance, then

OWNER agrees to provide CHARTERER, upon request, sufficient

financial information regarding OWNER’S ability to self-insure for

the applicable indemnities. CHARTERER shall be allowed, in its

sole discretion, to cancel upon 24 hours notice any vessel charter

hereunder if CHARTERER is not fully satisfied as to OWNER’S

ability to self-insure.

(emphasis added). Exhibit “A,” referenced in paragraph 26, is titled

“REQUIRED INSURANCE.” Exhibit “A” requires Elevating Boats to maintain,

among other insurance,“Protection and indemnity insurance on the SP 23 Form

or equivalent, written to include the following endorsements and minimum

limits: . . . CHARTER [sic] as an Additional Insured [and] Removal of ‘other than

Owner’ Limitation clauses as respects CHARTER [sic].” Apart from listing the

required insurance, Exhibit “A” further states and clarifies: 

It is further agreed that each such policy, other than Workers’

Compensation policies, shall name CHARTERER its parent and

affiliated companies as Additional Insured with respect to

OWNER’S operations hereunder. However, OWNER shall be solely

responsible for deductibles required under such policies, and

OWNER shall not under any circumstances call upon CHARTERER

for payment of such deductibles and OWNER shall defend,
No. 07-30110

1 The parties consented to the district court’s resolution of this issue on the papers

submitted in connection with the motion for summary judgment and subsequent motions for

reconsideration. On appeal, neither party contends that there were any genuine issues of

material fact that warranted a trial, nor do they contend that the district court’s resolution of

this matter on summary judgment was improper.

4

indemnify and hold harmless CHARTERER, its parent and

affiliated companies,their officers, directors, employees, and agents

from and against any and all claims, demands, courses of action or

suits with respect to such deductibles whatsoever the reason for or

howsoever occurring whether as a result of the negligence in whole

or in part of CHARTERER, or its parent and affiliated companies.

After twice reversing itself,the district court eventually granted summary

judgment in favor of Devon for the full amount of the $250,000 deductible that

Devon paid on its own insurance. Reviewing the language of the Agreement, the

district court rejected Elevating Boats’ argumentthatits obligation to list Devon

as an additional insured was limited by the indemnity obligations in paragraph

19. The district court reasoned that Elevating Boats’ obligation to name Devon

as an additional insured constituted an independent obligation, separate and

apart from the parties’ indemnity agreement. The district court concluded that

the Agreement required Elevating Boats to name Devon as an additional insured

for coverage that extended beyond any indemnity obligations and awarded

damages for Elevating Boats’ failure to do so. Elevating Boats appealed.

II

We review a district court’s grant of summary judgment de novo, applying

the same standard as the district court. Madison Materials Co., Inc. v. St. Paul

Fire & Marine Ins. Co., 523 F.3d 541, 542 (5th Cir. 2008). Summary judgment

is proper only if “there is no genuine issue as to any material fact and . . . the

movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c);

Madison Materials Co., 523 F.3d at 543.1
No. 07-30110

5

The interpretation of the terms of a contract is a matter of law, which we

review de novo. See Thibodeaux v. Vamos Oil & Gas Co., 487 F.3d 288, 293 (5th

Cir. 2007). “A maritime contract containing an indemnity agreement, whether

governed by federal maritime or Louisiana law, should be read as a whole and

its words given their plain meaning unless the provision is ambiguous.”

Weathersby v. Conoco Oil Co., 752 F.2d 953, 955–56 (5th Cir. 1984).

III

As a threshold matter, Elevating Boats raises two procedural objections

to the district court’s judgment. First, Elevating Boats argues that the district

court erred in granting an untimely motion under Federal Rule of Civil

Procedure 59(e) and revising its prior order denying Devon’s motion for

summary judgment. Second, Elevating Boats argues that the district court

abused its discretion in considering new arguments for the first time on a Rule

59(e) motion. Interestingly, despite these objections, which occupy the majority

of Elevating Boats’ brief, Elevating Boats urges us in a footnote to nonetheless

review the substantive merits of the dispute “[i]n the interest of judicial

efficiency.” 

Regardless, the district court did not commit any error or abuse its

discretion in considering the Rule 59(e) motion. The district court’s denial of

Devon’s motion for summary judgment on this issue was an interlocutory order,

and the district court did not abuse its discretion by revising that order prior to

the entry of final judgment. See Lavespere v. Niagara Mach. & Tool Works, Inc.,

910 F.2d 167, 185 (5th Cir. 1990) (“[B]ecause the denial of a motion for

summary judgment is an interlocutory order, the trial court is free to reconsider

and reverse its decision for any reason it deems sufficient, even in the absence

of new evidence or an intervening change in or clarification of the substantive

law.”), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069,
No. 07-30110

2 Elevating Boats devotes a mere three-and-a-half pages of its brief to the merits of this

contract dispute. There may be arguments that Elevating Boats might have raised but did

not. We address only those arguments that Elevating Boats has raised; any arguments that

Elevating Boats has not raised are waived. See, e.g., Yohey v. Collins, 985 F.2d 222, 225–26

(5th Cir. 1993). This decision should be read accordingly, narrowly focused on the arguments

presented to the court by the appellant. 

6

1075 n.14 (5th Cir. 1994) (en banc); see also FED. R. CIV. P. 54(b) (“[A]ny order

or other decision, however designated,that adjudicates fewer than allthe claims

or the rights and liabilities of fewer than all the parties . . . may be revised at

any time before the entry of a judgment adjudicating all the claims and all the

parties’ rights and liabilities.”)

IV

In its brief, Elevating Boats raises three arguments that the district court

erred in construing the Agreement. Each of these arguments is without merit.2

A

First, Elevating Boats argues that the district court erroneously

interpreted the terms of the Agreement so as to render the indemnity provision

contained in paragraph 19(c) of the Agreement meaningless and superfluous.

This provision, it argues, was intended to ensure that each party was responsible

for its own proportionate share of the fault in cases involving damage or injury

to third parties. According to Elevating Boats, Devon and Elevating Boats each

settled for their proportionate share of the fault; as such, under this provision,

there was nothing leftto resolve between Elevating Boats and Devon. Elevating

Boats argues that the district court’s award forced Elevating Boats to indemnify

Devon for the costs of Devon’s defense in contravention of the parties’

Agreement.

The district court awarded damages to Devon because it determined that

Elevating Boats breached an independent obligation under the Agreement to list
No. 07-30110

7

Devon as an additional insured under its P & I policy. The award was not based

on any reapportionment of the fault between the parties, as contemplated by

paragraph 19(c). As such, the district court’s award did not conflict with the

parties’ indemnity agreement in paragraph 19(c), and Elevating Boats’ argument

that the award rendered this particular indemnity agreement “meaningless” is

without merit. 

B

Elevating Boats next argues that the district court erred in holding that

it breached its obligation to list Devon as an additional insured under the

Agreement. Elevating Boats argues that its obligation to list Devon as an

additional insured was contingent on the applicability of the indemnity

obligations in Paragraph 19 of the Agreement. Because indemnity was not

required in this case, Elevating Boats argues that the additional insured

obligation was inapplicable.

The plain language of Exhibit “A” requires Elevating Boats to list Devon

as an additional insured for various, enumerated policies with respect to

Elevating Boats’ operations under the Agreement. This obligation is

independent of the indemnity obligations and includes the P & I policy at issue

in this case. We thus reject Elevating Boats’ argument that this obligation is

somehow contingent on the specific applicability of the indemnity provision in

paragraph 19. Although paragraph 26 qualifies and circumscribes the purpose

of the insurance coverage that each party is required to obtain (“to support the

indemnities provided for herein”), that paragraph also requires that Elevating

Boats’ coverage “be of the types and with limits not less than those set forth in

Exhibit ‘A.’” Nothing in paragraph 26 suggests that the requirements of Exhibit

“A” only apply if the indemnity provision of the Agreement is triggered. Thus,

as the district court concluded, the obligations created by Exhibit “A” stand on
No. 07-30110

8

their own, independent of the specific applicability of the indemnity provision.

Based on Exhibit “A,” Elevating Boats was required to list Devon as an

additional insured on the P & I policy that Elevating Boats was required to

obtain. The district court therefore did not err in concluding that the provisions

of Exhibit “A” were applicable and that Elevating Boats breached its obligation

to list Devon as an additional insured on the P & I policy.

C

Finally, Elevating Boats argues that it was not required to pay Devon’s

deductible because Exhibit “A” requires only that Elevating Boats pay the

deductibles on its own insurance and any insurance for which it is required to

name Devon as an additional insured. This argument misconstrues the nature

ofthe district court’s award. Elevating Boats was required under the agreement

to obtain insurance, list Devon as an additional insured, and cover any

deductibles for that insurance. It failed to do so. As a result of this breach,

Devon suffered damages, the cost of paying its own $250,000 deductible to

proceed using its own insurance. The district court awarded Devon the $250,000

amount. Elevating Boats has not raised any argument to establish why this was

an inappropriate measure of damages. 

AFFIRMED