Yesterday’s post, The race technically started – but Merlin is docked! Understand Florida’s anti-technique statute regarding marine insurancewas the result of a case originally reported in TCaptain and crew guarantees in a yacht policy are important. The Eleventh Circuit Court of Appeals upheld a judgment for the policyholder last week and further discussed the law regarding Florida’s anti-technology statute:1
We recently applied Florida’s anti-technique statute in a case involving the destruction of a yacht during Hurricane Dorian. See Serendipity at Sea, 56 F.4 at 1282. There, the insurer, not the insured, called Captain Danti as an expert witness. The insurer argued that Captain Danti offered “undisputed testimony” that the insured’s failure to “employ a full-time licensed captain in violation of the policy’s captain warranty” increased the risk to the yacht. Essentially, he believed that a full-time captain would have moved the boat away from the Bahamas — where the yacht was moored and where the hurricane hit — and back to Cape Canaveral, the yacht’s primary mooring. The district court found Captain Danti’s opinion in the matter undisputed because the insured did not offer an opposing expert and granted summary judgment to the insurer.
We reversed the district court because we found that Captain Danti’s expert testimony was based on facts about which there was reasonable dispute. Specifically, we explained that the insured cited weather reports in its motion for summary judgment showing that Hurricane Dorian was unpredictable, and that as of the day before the storm hit the Bahamas—where the yacht was moored—it was expected to hit Cape Canaveral, not the Bahamas. It undermined Captain Danti’s opinion that a full-time captain would have moved the yacht from the Bahamas to Cape Canaveral. So there was a genuine issue of fact for the jury as to whether the lack of a full-time captain increased the risk to the yacht.
The rule from these cases is clear: to meet its burden under Florida’s anti-technique statute, the insured must show that under the circumstances of the particular accident at issue the breach of warranty had some material effect on the loss. Otherwise, the insurer can avoid[ ] coverage of a technical failure that plays no part in the loss.’
Travelers lost the case in part because it had no expert witness:
The impact of Ocean Reef’s failure to retain a full-time captain and crew in the run-up to and during Hurricane Irma is exactly the kind of issue that calls for expert opinion. The question is hypothetical. Discussing what would have happened about a captain where responsible for My lady during hurricane Irma necessarily requires hypotheses. “And the ability to answer hypothetical questions is”[t]the essential difference between expert and lay witnesses.
All in all, without expert opinion on what a professional captain would have done differently to avoid injury My lady during Hurricane Irma, the jury would have had to speculate to find travelers under Florida’s anti-technique statute. And we see no need to give travelers another bite of the apple.
I’m certainly not a professional captain, but I’m with an expert crew of racers starting the Transpacific Yacht Race tomorrow from Los Angeles to Honolulu. For readers who want to follow Merlin’s progress, here is a link to the race tracker.
Ocean racing is inherently dangerous. Intellectually, you know it is. But until you’ve been tested, you won’t get a real sense of how quickly things can go wrong. You also won’t get a sense of why we’re doing this. The combination of the adrenaline rush, camaraderie and power of a full-tilt open sea racing machine is like nothing you’ll ever experience anywhere else.
— Mavericks & Merlins: Sailors and Renegades leave the coast, how about you? by Chip Merlin
1 Travelers Prop. Cas. Co. of Americano. 21-14509 (11Th Cir. 23 June 2023).