USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 97-1817

DRAKE FISHING, INC., ET AL.,

Plaintiffs, Appellants,

v.

CLARENDON AMERICAN INSURANCE CO.,

Defendant, Appellee.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

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Aldrich, Senior Circuit Judge,

____________________

and Boudin, Circuit Judge.

_____________

____________________

John A. Birknes, Jr. for appellants.

____________________
Thomas

J. Muzyka

with whom

Clinton

& Muzyka

was on

brief

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_________________

appellee.

____________________

February 20, 1998

____________________

ALDRICH,

Senior Circuit Judge.

_____________________

The F/V

DRAKE,

dragging for scallops on February 28, 1995, "hung" her dredge

on

the bottom.

She was unable to

ended up

with the wire

quarter

into

the

unable

and

seas

The

hydraulic winch

Meanwhile, the seas were

lazarettes

faster than

response to

a May Day

saved, but

brought to recover

the bilge

pumps

lost.

the agreed value, on

American Insurance Company's hull policy.

the

crew

jammed, and,

not light a

filling the

could handle.

call, another vessel arrived

the DRAKE was

unsatisfied condition

into

off, and the

rain and weather, the crew could

torch to cut the wire.

her stern

splashing

covers having come

to replace them.

because of the

crew was

at 90 degrees (downward),

wind,

lazarettes, the hatch

free by maneuvering, and

In

and the

This action

was

defendant Clarendon

On the basis of an

precedent, plaintiffs-appellants

lost

on summary judgment in the district court.

When the

various

minor

alarm warning

battery

in

DRAKE put to

deficiencies,

lights and

the pilot

however, were working,

the water.

loss.

The audible

and the crew

Mass.

no lazarette

required spare

house.

The battery's

Accordingly,

sea on this voyage,

including

no

We affirm.

it had

bilge

communications

bilge

alarms,

was obviously aware

of

absence was also irrelevant to the

G.L. ch.

175,

186

might have

precluded either of these defects, or a number of other minor

ones, from giving

rise to a successful

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misrepresentation or

breach of warranty

the

set-up.

defense on the policy,1 but

Defendant

had

stronger

this was not

defense,

the

Massachusetts law of condition precedent.

Conformance with stated

to

govern

regardless

the

attachment

of their

of

conditions that are agreed

the

irrelevancy to

policy

is

the actual

obligatory,

loss.

See
___

Charles, Henry & Crowley Co. v. Home Ins. Co., 349 Mass. 723,
____________________________
_____________

724-25,

212 N.E.2d

240 (1965);

see also Edmonds

v. United

___ ____ _______

States, 492
______

F. Supp.

970, 974 (D.

F.2d 877 (1st Cir. 1981).

relate essentially

issue

the policy.

Mass. at 726.

aff'd, 642
_____

It is enough that the

statements

intelligent decision to

Charles, Henry & Crowley Co., 349

______________________________

This question is an objective one:

matter be considered

See Krause
___ ______

Mass. 1980),

to the insurer's

See
___

______

of importance by a

would the

reasonable insurer.

v. Equitable Life Ins. Co., 333 Mass.

________________________

200, 204,

129 N.E.2d 617 (1955); Lopardi v. John Hancock Mut. Life Ins.
_______
___________________________

Co.,
___

289 Mass.

492, 496,

194

United States Cas. Co., 278

________________________

N.E. 706

Mass. 178,

(1932); see also Edmonds, 642 F.2d at 883.

___ ____ _______

(1935); Kravit
______

180, 179

v.

N.E. 399

Involved

conditions.

by the

here, among

The DRAKE was

United States

sticker.

There

was

others,

following

to undergo and pass an inspection

Coast Guard

to

were the

be a

and display

back-up

a compliance

radio battery

with

____________________

1.

It

is

agreed that,

Massachusetts law governs.

though

this was

marine policy,

See generally Wilburn Boat Co. v.

___ _________ ________________

Fireman's Fund Ins. Co., 348 U.S. 310 (1955).

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associated

charging equipment.

And, the DRAKE

was to have

both audible and visual bilge alarms in the lazarettes, wired

to

the

pilot

house.

All

unsatisfied

at the

focussed on

the first, finding

reasonable maritime

would

not as

policy

had

sticker."

relevant

known that

We agree.

conceded

times.

The

that "as

insurer would

a matter of

it

are

to

there

wasn't

been

district

court

a matter of

law a

have wanted

law, not fact,

have

to know

and

have issued th[e]

that

Coast Guard

Cf. Edmonds, 642 F.2d at 883 & n.2 (FAA

___ _______

biennial flight review requirement).

There

plaintiffs:

is

further

question

raised

by

the

were these matters truly expressed as conditions

precedent.

Whether a policy term is a condition precedent or

a warranty is a question of law.

See Shaw v. Commercial Ins.

___ ____
_______________

Co., 359 Mass. 601, 605-06, 270 N.E.2d 817 (1971).

___

requirement

that

equivalent be

Co.,
___

349

the words

used was

Mass.

at

"condition precedent"

met.

726.

See
___

The

Here, the

or their

Charles, Henry & Crowley

_________________________

Fishing

Vessel

Safety

Requirements Clause, expressly attached to and forming a part

of the policy, stated,

It

is

condition

coverage that these

complied
date

with

precedent

of

this

requirements must be

prior to

the

attachment

of this policy and as proof of such

compliance

this

Fishing

Vessel

Safety

Requirements Clause must be signed by the

Assured

and

company . . . .

be

returned

to

this

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The

listed "requirements"

included the

the battery, and the bilge alarms.

who was also the

inspection sticker,

The captain of the DRAKE,

son of its owner, signed the

assured, one month before the final voyage.2

clause as the

Plaintiffs attempt to save their case by contending

that

least,

valid conditions

in the

language in

precedent must

application

for

appear,

insurance.

Charles, Henry & Crowley Co.

_____________________________

initially at

Although

might be

the

read to

support this, see 349 Mass. at 726 ("[A] statement made in an

___

application

for a policy of insurance may become a condition

of the policy rather than remain a warranty or representation

if . . . ."),

other cases reveal a broader view, see Shurdut

___ _______

v. John Hancock Mut. Life Ins. Co., 320

________________________________

N.E.2d

391

(1947)

lapse); Lopardi,
_______

(application

289 Mass.

at 495

for

Mass. 728, 731,

reinstatement

(provisions in

71

after

policy);

Kravit, 278 Mass. at 179 (policy schedule); see also Edmonds,

______
___ ____ _______

492 F. Supp. at

972-73 (amendments added in connection

with

renewal).

There

notice

of

the

can be no

conditions,

insurer's decision to

dispute here that

or that

they

take the risk.

Cf.
___

plaintiffs had

related

to

the

Edmonds, 642 F.2d

_______

____________________

2.

Although

1994 rather
mistake.

the insured's
than 1995, it

Despite a later,

signature
is clear

is dated

that this was

plaintiffs-appellants can

Fishing Vessel Safety

simply a

and feeble, effort to cast doubt,

plaintiffs-appellants essentially admitted

event,

January 27,

make

no

as much.
claim

Requirements Clause was not

the policy or that they had no notice.

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In

any

that

the

a part of

at 882.

Clarendon reinstated the policy on February 2, 1995,

after issuing notice

had separately

of cancellation, only after

executed

Safety Requirements Clause

and submitted

the

days earlier.3

plaintiffs

Fishing

The

Vessel

DRAKE had no

inspection sticker at that time, nor later that month when it

left

harbor.

surrounding

Considering

the

issuance

of

the

facts

the policy,

and

as

circumstances

we

may, see
___

Massachusetts Mun. Wholesale Elec. Co. v. Town of Danvers,

________________________________________
________________

411 Mass. 39, 45-46, 577 N.E.2d 283 (1991), we think it clear

that plaintiffs' argument

731

(resumption of

conditional

upon

fails.

obligation

the

truth

application for reinstatement).

Affirmed.
_________

____________________

Cf. Shurdut, 320

___ _______

after lapse

of

statements

made

made

Mass. at

expressly

in

the

3.

A simultaneous basis for

the premium,
its owners

cancellation was non-payment of

also remedied before

had never before

Coast Guard for

they requested
behest of their

reinstatement.

had the Drake inspected

purposes of obtaining a
such an

and no sticker was issued.

by the

compliance sticker,

inspection in February

insurance brokers.

Although

The Drake

1995 at

the

did not pass,

The reasons are immaterial to the

loss. Cf. Edmonds.

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