What is a captain? That might seem like a silly question to bring up, especially in a magazine where many of the readers are captains in one form or another, whether recreationally after buying a boat, or commercially, through accumulating sea time and sitting for a U.S. Coast Guard license.
In the most casual sense, the term “captain” could bring to mind the fatherly “skipper” on the lighthearted 1960s sitcom Gilligan’s Island. The term could also suggest a six-pack OUPV (operator uninspected passenger vessel) captain who runs morning fishing charters out of Montauk. Or it could mean a deck officer on the bridge of the 171,000-ton container ship Emma Mærsk, who holds an unlimited tonnage, ocean master license but who sails as first officer. There are many possibilities.
Although the average boater enjoying a Sunday afternoon on Long Island Sound or Great South Bay might not give much thought to the legal technicalities associated with the term “captain,” insurance policies may be more exacting. When an insurance company uses the term “captain,” you could be correct to guess that the choice of words has significance. And the term “captain” did have legal significance in a case involving the destruction of a yacht during a hurricane.
The matter took place in the Bahamas on Great Abaco Island in 2019. A 61-foot yacht was destroyed by Hurricane Dorian, a Category 5 storm. The owners sued the insurance carrier Lloyd’s of London for breach of contract after Lloyd’s denied their claim for hurricane damage. Lloyd’s defended its position based on the argument that the owners had not hired a full-time licensed captain.
They argued that this amounted to a violation of the policy’s captain warranty. The policy contained two warranties, a captain warranty and a crew warranty. The term warranty here is slightly different than what we’re accustomed to seeing in everyday usage, as in the case of a refrigerator warranty. The term “warranty” here is more about conditions for crewing a vessel. The captain warranty became a focus of the lawsuit, in particular, the provision requiring that a full-time licensed captain be employed for the maintenance and care of the vessel and who was to be on board while the vessel was underway.
The insurance carrier took the position that a full-time captain would have taken the vessel back to Florida with the impending storm. The lower court ruled in favor of the carrier in a summary judgment motion. Admittedly, this was an erratic weather event, with forecasts changing frequently as meteorological conditions intensified. In the beginning, the storm was predicted to hit Central Florida.
A few days later, it was predicted that it would hit Puerto Rico as a tropical storm. In the course of several days, Dorian because a Category 3 hurricane. And in a short time after that, it escalated into a Category 5 hurricane, making landfall on Great Abaco, where the yacht was docked.
On appeal, the vessel owners argued that the captain warranty was ambiguous, raising questions such as, “What exactly is a ‘full-time licensed captain?” or “What is considered ‘full time?’” The appeals court did agree that that there was ambiguity in the terms of the contract, but it also felt that the insured had breached the warranty. The matter was sent back to the lower court for further review.
For the small boat owner of something under 35 feet that doesn’t require a paid crew, captain warranties and crew warranties could seem irrelevant. But on a more general note, one of the learning points in a case like this might be to closely examine insurance policies. And admittedly, that’s something easier said than done. Insurance policies sometimes come in binders and have many paragraphs, with some of the most confusing provisions buried toward the end.
So, then what exactly is a captain? Maybe the best answer to the question could be found on those placards that some boat owners have on the console… “I’m the captain of this vessel because my wife [or husband] gave me permission to say I am!”
Ref: Serendipity at Sea, LLC, Plaintiff-Appellant v. Underwriters at Lloyd’s of London, Defendant-Appellee, USI Insurance Services, LLC; U.S. Court of Appeals (11th Circuit) No. 21-11733, on appeal from the U.S. District Court, Southern District of Florida, Docket No. 0:20-cv-60520-RAR
Tim is a NY-based maritime attorney and has taught law at SUNY Maritime College. Erol is a graduate of CUNY School of Law and Farmingdale State College.