Midnight Marine Limited v. Aviva Insurance Company of Canada

In Admiralty Practice, Marine Insurance on

Facts: In March 2007 the plaintiffs were engaged in a transport of scrap metal in the Caribbean when the barge used in that transport rolled in rough seas, causing a material handler to fall off the barge. Insurance coverage applicable to the barge was provided by defendant insurer under a commercial general liability policy with a contractors’ equipment floater endorsement, which excluded loss beyond the territorial limits of Canada and continental USA and an exclusion of coverage while the material handler was waterborne.  The policy was in effect since 2005 and was renewed in July 2006. The plaintiffs’ claim for the material handler was denied by the defendant insurer as the loss fell within the exclusions. The plaintiffs argued that the exclusion provisions were not included in the renewal policy. The defendant insurer argued the floater endorsement and exclusions were attached to the initial policy and incorporated by reference in the renewal.

Decision: Defendant insurer not required to indemnify for the loss; plaintiffs’ action dismissed.

Held: The insuring agreement included provision for coverage of the material handler under the insurance policy offered by the defendant insurer, including the waterborne exclusion and territorial limit coverage. The Court found that the insurance policy was in accordance with the insuring agreement, and that the defendant insurer also intended to provide first-party property coverage for the equipment during the renewal period under the same endorsement that covered the equipment in the initial policy. The Court held that the renewal document complied with the provincial statute as it advised the plaintiffs of the changes to the CGL policy and incorporated the unchanged floater endorsement by reference to the name and number of the endorsement, which had been delivered to the plaintiffs with the initial policy.