United States District Court, S.D. Florida
IN THE MATTER OF THE COMPLAINT OF BLUE CREST HOLDING ASSET, INC., as Owner and Operator of the M/Y MIMI, for Exoneration from and/or Limitation of Liability, Petitioner.
ORDER SETTING FORTH FINDINGS OF FACT AND CONCLUSIONS
CECILIA M. ALTONAGA UNITED STATES DISTRICT JUDGE
Plaintiff, Miami Beach Marina Associates, Ltd.
(“MBM”) filed a Motion to Enforce the Settlement
Agreement with Blue Crest Holding Asset, Inc. and Maximilian
Camino [ECF No. 197] on January 5, 2018. By Order [ECF No.
210] dated January 29, 2018, the Court denied the Motion to
Enforce and directed the parties to schedule the matter for
an evidentiary hearing. That hearing took place on March 14
and 15, 2018. (See [ECF Nos. 250 & 252]). At the
evidentiary hearing, MBM called six witnesses to testify:
John Alder, John Hopwood, John Keller, Maximilian Camino,
Marlin Kareem Green, and Janice McIntyre. Neither BCH nor Mr.
Camino called any witnesses.
Court has carefully considered the testimony of the
witnesses, the exhibits admitted, the parties' written
submissions, and applicable law. Based on its review of the
record and pursuant to Federal Rule of Civil Procedure
52(a)(1), the Court makes the following findings of fact and
conclusions of law.
March 17, 2017, Petitioner, Blue Crest Holding Asset, Inc.
(“BCH”), filed a Verified Complaint for
Exoneration from or Limitation of Liability [ECF No. 1].
was an owner of the M/Y MIMI, an 80-foot Hatteras Motor
Yacht. The Vessel is the subject of this Limitation of
Liability Proceeding due to an incident that occurred on
October 2, 2016. Underwriters at Lloyd's (“Blue
Crest Lloyd's”) appointed Mr. Green to bring the
only claims asserted directly against BCH are those of MBM;
James Terry, and Certain Underwriters at Lloyd's of
London Under Binding Authority: B0901LC1616622000 subscribing
to Policy Number: 500061-ACH as the subrogee of FCM (BVI)
Trading as Sunsail and The Moorings Limited, the owner,
charterer and/or operator of the M/Y LAZY SUSAN and M/Y
ANDIAMO (collectively “Claimant Lloyd's”).
Green, attorney-in-fact for BCH, verified the Complaint.
(See Compl. 8). Mr. Green brought the Limitation
Action on behalf of Blue Crest Lloyd's, insurers for the
MIMI. Mr. Green reports to both the primary and excess leads
for Blue Crest Lloyd's.
Green received instructions from both the primary and excess
insurers with regard to defending the case. At some
point there was a shift as to which insurer, the primary or
excess, would give Mr. Green instructions to file the
Limitation Action. Mr. Green never informed anyone there was
a switch from primary to excess underwriters; he never
indicated to MBM's counsel that control of the case was
being handed to someone else.
its Complaint, BCH issued the following Ad Interim
Stipulation of Value:
. . . Petitioner, as principal, and Certain Underwriters at
Lloyd's, London, as sureties, hereby undertake the sum of
ONE HUNDRED THIRTY SEVEN THOUSAND AND NO/100 DOLLARS ($137,
000.00) and such increases or decreases in such amount as
this Court may time to time order and that they agree that
they will file in this proceeding a Stipulation to Abide
Decree or Stipulation For Value in such amount as this Court
may from time to time order and that they agree that they
will file in this proceeding a Stipulation to Abide Decree or
Stipulation For Value in such amount as the Court may direct,
with interest at the rate of 6% per annum from the date
hereof, and that pending the filing of a Stipulation to Abide
Decree or the giving of a Stipulation for Value therefor,
this Stipulation shall stand as security for all claims in
the limitation proceeding.
* * *
Petitioner and said surety hereby commit themselves to the
jurisdiction of the Court and agree to abide by all orders of
the Court, interlocutory and final, and to pay the amount
awarded, if any, by the Final Judgment rendered by this
Court, or an appellate court if an appeal intervenes, not to
exceed the amount of ONE HUNDRED THIRTY SEVEN THOUSAND AND
NO/100 DOLLARS ($137, 000.00) with interest at the rate of 6%
per annum, unless a Stipulation to Abide Decree or
Stipulation for Value therefor shall be given as aforesaid in
the meantime, in which event this Ad Interim
Stipulation shall be void.
(Compl. Ex. B, 14-15 (alteration added)).
Ad Interim Stipulation was signed on March 17, 2017
by BCH, and Certain Underwriters at Lloyd's, London. By
the terms of the Ad Interim Stipulation, Blue Crest
Lloyd's is a surety to BCH.
the Ad Interim Stipulation, Mr. Green did not
identify which Certain Underwriters at Lloyd's were being
bound as sureties. He also did not have the sureties
countersign the Ad Interim Stipulation. There was an
acknowledgment in the Ad Interim Stipulation that
Mr. Green had authority to bind Blue Crest Lloyd's.
never separately filed a claim for damages to the MIMI
against MBM. BCH filed a counterclaim against MBM but did not
assert any damages to the MIMI. Instead, BCH asserted
indemnity and contribution for any claims BCH might be
required to pay as a result of other lawsuits filed against
it in the Limitation Action.
October 2, 2016, Blue Crest Lloyd's provided Hull
Machinery and Equipment, Protection and Indemnity
(“P&I”) coverage and other insurance coverage
for BCH and the MIMI.
had both a primary insurance policy and an excess insurance
policy for the MIMI. The primary policy, B0621MMILYBY15096,
attaching to delegated underwriting contract number
B0621MMILYBY15CVA, effective February 16, 2016, had P&I
coverage for the MIMI valued at $1, 000, 000. The primary
policy is subject to the American Yacht Form R12.
American Yacht Form R12 states insurers will not only pay the
cost and expenses of the defense, but if they name the
lawyers, the insurers have discretion and control. As such,
the insurers have a duty to pay for the defense and defend
the insured. Primary insurers have the duty to pay for the
defense, separate and apart from the policy limits.
excess policy, attaching to the unique market reference of
B0621MMILXPI16025, effective February 16, 2016, had excess
insurance coverage for the MIMI valued at $3, 000, 000. Prior
to this litigation, neither BCH nor Third-Party Defendant,
Maximilian Camino, informed MBM there was an excess policy
for the MIMI.
excess and primary policies for the MIMI list the Lloyd's
syndicates and managing agents (collectively
“syndicates”) for each policy. There are common
syndicates for both policies. For example, Munich Re
Syndicate, Limited (“Munich Re”) and Ace
Underwriting Agencies Limited are listed on the primary and
According to Mr. Green, his client for purposes of the excess
policy was the lead of that policy, Munich Re. Mr. Green
stated his client for purposes of the primary policy was the
lead of that policy “Chubb, ” now known as Ace
Underwriting Agencies Limited.
Green undertook BCH's defense at the expense of Blue
Crest Lloyd's, in addition to being the attorney for
marine surveyor John Alder, who signed the Affidavit of Value
accompanying the Complaint. (See Compl. Ex. A
10-11). Mr. Green was hired to undertake the defense of Blue
Crest Lloyd's' insureds.
operates the Miami Beach Marina, a public marina located in
Miami Beach. RCI Marine Inc. is an affiliated company to MBM
and operates select aspects of the marina. The property on
which the marina is situated is owned by the City of Miami
is insured by Travelers Property Casualty Company of America,
which issued a policy that was in effect on October 2, 2016.
Camino was an owner of the MIMI. He is a corporate lawyer and
businessman, has incorporated over ten companies, and sits on
several corporate boards. Mr. Camino has held positions with
several corporations as corporate secretary, director,
managing member, and president.
Throughout this litigation, Mr. Camino has taken the position
he is the authorized representative for BCH. He was not aware
BCH filed this Limitation Action on March 17, 2017, nor was
he consulted on the filing of the lawsuit.
When Mr. Camino was served with MBM's Third-Party
Complaint, he contacted his personal attorney, Stephen
Gillman of Shutts & Bowen. Nevertheless, the MIMI's
insurers are paying Mr. Green to defend Mr. Camino in the
Camino signed four contracts with MBM for dockage of the
MIMI, each listing him as owner. All contracts include the
same material language.
Dock Space Lease and License Agreements signed by Mr. Camino
for dockage of the MIMI were entered on May 1, 2014, October
1, 2014, and October 1, 2015. Mr. Camino did not qualify his
signature on the documents by stating he was signing as a
representative for someone, including BCH.
October 1, 2016, Mr. Camino entered a fourth Dock Space Lease
and License Agreement with MBM (“MIMI Marina
Agreement”) for dockage of the MIMI commencing October
1, 2016. Again, he did not qualify his signature in the MIMI
Marina Agreement by writing that he was signing on behalf of
BCH. The MIMI Marina Agreement was in effect at the time of
the incident that occurred on October 2, 2016.
Under the MIMI Marina Agreement, Mr. Camino agreed:
At all times, OWNER retains exclusive care, custody and
control of, and is solely responsible for, VESSEL, its
engines, appurtenances and contents. MARINA is not a bailee
of VESSEL, its engines, appurtenances or contents and assumes
no responsibility for safe operating condition, tie up,
dockage or maintenance of VESSEL. OWNER is solely responsible
for security of VESSEL and for preventing entry by
unauthorized persons on VESSEL.
(MBM Hr'g Ex. 16, 2).
MIMI Marina Agreement also states:
If the person signing this APPLICATION is not the OWNER, such
person: (a) must fully name and identify OWNER in this
APPLICATION, (b) warrants and represents his/her authority to
obligate OWNER and VESSEL to this AGREEMENT, (c) agrees to be
bound personally, jointly and severally, with OWNER and
VESSEL pursuant to this AGREEMENT, and (d) certifies that
he/she has lawful custody and control of VESSEL as
Captain/Agent of OWNER.
(Id. 1). Mr. Camino did not name and identify BCH as
“owner” in the MIMI Marina Agreement. He
represented his authority to bind BCH to the MIMI Marina
Agreement and agreed to be personally, jointly and severally
Blue Crest Lloyd's, both primary and excess underwriters,
appointed marine surveyor John Alder. Throughout the
litigation, Mr. Alder represented himself as Blue Crest
Lloyd's' inspector, surveyor and “authorized
representative.” In email correspondence with MBM, Mr.
Alder stated he was representing Lloyd's of London. Mr.
Green never had any concern about Mr. Alder signing his
emails as the representative of Lloyd's of London, nor
did Mr. Green ever correct Mr. Alder.
MIMI's hull and liability underwriters appointed Mr.
Alder, and since October 3, 2016, he has been working on
behalf of the Lloyd's syndicates for the MIMI. He never
specified to MBM which Lloyd's insurers he was appointed
Alder was paid by Blue Crest Lloyd's through JLT
Insurance, a London broker that placed the insurance risk for
the MIMI. JLT's Robert Williams would refer Mr.
Alder's reporting to Blue Crest Lloyd's.
October 2, 2016, the MIMI was docked at the marina when in
the late-night hours, an unidentified individual attempted to
operate the MIMI out of her slip. The individual caused
extensive damage to MBM and other vessels at the marina. MBM
sustained damages when the MIMI collided with pilings and
other structures of the marina.
Captain Brenda Bedell was the captain of the MIMI on October
2, 2016, responsible for the safety and security of the MIMI.
While onboard the MIMI, Mr. Camino would instruct Captain
Bedell on where he wanted the MIMI to go.
October 3, 2016, Mr. Alder went to the marina instructed by
Blue Crest Lloyd's to assess the damage to the MIMI, to
other vessels, and to the marina itself.
Alder was directly involved in arranging for the MIMI's
salvage. Resolve Salvage and Fire Americas Inc.
(“Resolve Salvage”) was contracted to undertake
removal of the MIMI. Mr. Alder was issued a salvage plan on
behalf of the MIMI's owners and insurers. Mr. Alder never
distinguished between MIMI's primary and excess
underwriters in his dealings with Resolve Salvage.
Part of the salvage plan for the MIMI involved bringing in a
barge. On behalf of Blue Crest Lloyd's, Mr. Alder
contracted with salvors and salvor sub-contractors, including
Kearns Construction Company (the company that provided the
barge for removal of the MIMI), in an effort to remove the
wreckage of the MIMI from the marina.
Alder asked Kearns Construction to send its invoices to him
so he could remit payment directly. Kearns Construction sent
an invoice dated December 23, 2016 for payment to “John
Alder/Lloyd's.” (MBM Hr'g Ex. 7). In issuing
payment, Mr. Alder issued a check to Kearns Construction in
the amount of $2, 000.00 for the MIMI salvage operation.
Alder made several payments to Kearns Construction for the
MIMI's removal. He received the money to pay Kearns
Construction from the Lloyd's syndicates who underwrote
the risks for the MIMI.
Alder evaluated the amount claimed by Resolve Salvage for the
removal of the MIMI. Mr. Green was involved in this process,
communicating with Mr. Alder regarding the amounts claimed by
Resolve Salvage. On January 10, 2017, Mr. Alder wrote Resolve
Salvage advising he had audited the billing and found it
excessive. As a result, Resolve Salvage filed an arbitration
proceeding against BCH. Mr. Green defended BCH in the
arbitration, resulting in an award against BCH.
Blue Crest Lloyd's paid Mr. Green for the defense of BCH
in the salvage or removal of the MIMI, although he does not
know which insurer made the payments.
Alder was asked by Mr. Green's firm to pay Resolve
Salvage with funds from his trust bank account, a sum of
approximately half a million dollars. The MIMI's insurers
paid the arbitration award that ...