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De Guinea v. Insurance Co.

argued: June 17, 1986.

COMPAGNIE DES BAUXITES DE GUINEA
v.
INSURANCE COMPANY OF NORTH AMERICA, THE INSURANCE CORPORATION OF IRELAND, LTD., METCANTILE & GENERAL REINSURANCE CO., LTD., HANOVER EAGLE STAR INSURANCE CO., LTD., HANOVER INSURANCE COMPANY, CONTINENTAL ASSURANCE COMPANY OF LONDON, LTD., THE CENTURY INSURANCE CO., LTD., YUVAL, THE INSURANCE COMPANY OF ISRAEL, LTD., HOME INSURANCE CO., LTD., SLATER WALKER INSURANCE COMPANY, LTD., YASUDA FIRE & MARINE INSURANCE COMPANY (UK) LTD., NICHIDO FIRE & MARINE INSURANCE CO., LTD., TUREGUM INSURANCE COMPANY, SAHAR INSURANCE CO., LTD., EXCESS INSURANCE CO., LTD., TRIDENT INSURANCE CO., LTD., VESTA (UK) LTD., CHIYODA FIRE & MARINE INSURANCE, LTD., TOKYO, STRONGHOLD INSURANCE CO., LTD., BRITISH RESERVE INSURANCE CO., LTD., ENGLISH & AMERICAN INSURANCE CO., LTD., CONSOLIDATED EUROPEAN REINSURANCE CO., LTD. & L'UNION ATLANTIQUE SA D'ASSURANCES BRUSSELS, ALL BEING CORPORATIONS



On Appeal from the United States District Court for the Western District of Pennsylvania (Pittsburgh) D.C. Civil No. 75-1567.

Author: Hunter

Opinion OF THE COURT

HUNTER, Circuit Judge :

Before: SEITZ, HUNTER, and MANSMANN, Circuit Judges.

I. BACKGROUND

1. Compagnie Des Bauxites de Guinea ("CBG") is a multi-national corporation owned 49% by The Republic of Guinea and 51% by Halco Mining, Inc. ("Halco"). Halco is owned by the world's six largest aluminum producers. In 1969, CBG's predecessor began constructing the Boke Project, a facility to mine and process bauxite in Guinea. The first production year for the Boke Project began on October 1, 1973. The bauxite from Guinea was supplied to the aluminum companies owning Halco.

2. CBG mines bauxite in the interior of Guinea at Sangaredi and transports it by railway to the processing and shiploading facility at Kamsar, on the coast of Guinea. At Kamsar, the railroad ore cars are raised and the ore unloaded onto conveyors known as the "pan feeders." The bauxite is moved to the tippler building, a ninety-five foot high, reinforced concrete structure, where it is crushed. The crushed ore is then dried if necessary. A bucket wheel picks up the dried ore, which is then loaded onto ships at a dock connected to the processing facility.

3. CBG obtained an insurance policy, with a liability limit of ten million dollars, for business interruption loss coverage from the Insurance Company of North America ("INA"). INA's place of incorporation and principal place of business is Pennsylvania. The initial and renewal policy term was from February 12, 1974 to June 1, 1975. The policy insured against "losses resulting directly from necessary interruption of business caused by damage to or destruction of real or personal property.

4. Before beginning its first year of operations, CBG entered into contracts to supply 4.7 million metric tons of bauxite during its first production year, the period from October 1, 1973 to September 30, 1974. However, during this first year, CBG shipped only about 3.6 million metric tons of bauxite and canceled several shipments. CBG entered into contracts to supply 6.8 million metric tons of bauxite during it second production year, which began on October 1, 1974.

5. On September 2, 1974, CBG discovered cracks in the tippler building. Mr. Hercules Pappas, the president of CBG, went to Guinea to review the problem with CBG's engineers. On September 16, 1974, Pappas concluded that there were serious problems with the structural integrity of the building and that crushing, and therefore shipments, of bauxite would have to be curtailed to avoid the building's collapse. He immediately canceled a great number of bauxite shipments.

6. Pappas testified that he canceled the shipments because of the cracks and not, as INA contended, for other reasons that were known before the discovery of the cracks. CBG's engineers had told Pappas to minimize production. Pappas admitted that he had overreacted by canceling so many shipments. Crushing and shipments during October, November, and December 1974 were higher than Pappas had anticipated after seeing the cracks, but were lower than CBG had projected before it knew about the cracks. Crushing during these three months was greater than it had been in any month in the first production year. CBG testified, however, that they had reasonably expected production to be significantly greater in the second year and that the actual crushing done, while greater than the first year's amount, was still much lower than their expectation. In its first year of production, less than 400,000 metric tons were crushed each month in all but one month. In October, November and December 1974, CBG crushed between 450,000 and 475,000 metric tons per month. In May 1975, the first month of crushing after the tippler building was fully restored, CBG crushed 675,000 metric tons of bauxite. CBG had planned to crush over 500,000 metric tons per month in its second year of production. CBG was able to reinstate a number of the canceled shipments.

7. There was no crushing done from early January 1975 to April 18, 1975. During this time, the tippler building was repaired. CBG continued to make some shipments of bauxite by using its inventory. CBG contended that over the period from September 1974 to April 1975, it lost sales of 1,291,000 metric tons of bauxite. While restoring the tippler building, CBG also restored the mechanical pan feeder system's support. At trial, INA contended that the down-time did not result primarily from cracks in the tippler building but from a variety of other problems including a shortage of storage space, electrical repairs, mechanical repairs, a delay while waiting for raw bauxite, breakdowns of the pan feeders, and a need to redesign the tippler building and the pan feeder system.

8. CBG notified INA of its business interruption loss claim in June 1975. The district court found that INA received notice of the claim as of January 1975, when INA gained access to a report by Donald Mars, an international claims adjuster. In November 1975, another insurance company had sent Mars to the Boke facility to investigate a property damage claim with respect to the tippler building. While he was there, Mars also investigated, on behalf of INA, CBG's business interruption claims arising from damage to Bucket Wheel No. 3 and from a train derailment.

9. On January 23, 1975, Mars met with J.J. Gelinas, an employee in INA's European Head Office in Brussels. They met to discuss the train collision claim. On the basis of the meeting, Gelinas prepared a memo which was given to John Stel, the senior officer at INA's international claims subsidiary in Philadelphia. Gelinas wrote the memo under the caption of the train collision loss, but discussed the cracks in the tippler building and the expected loss of production.

10. On December 11, 1975, CBG brought suit against INA and the excess insurers seeking recovery under its business interruption insurance policy for losses due to damage to the tippler building. In two other suits, CBG made claims under the same policy for losses due to a train collision and to an accident with the reclaiming machine, Bucket Wheel NO. 3. The three suits were consolidated for pretrial matters and discovery was conducted from 1975 to 1982. CBG recovered only $72,273.00 in the train collision action. See Compagnie Des Bauxites de Guinee v. Insurance Co. of North America, 721 F.2d 109 (3d Cir. 1983). The jury found for INA on the bucket wheel action, which had been tried on the issue of damages before the same jury that considered the instant case.

11. The court scheduled trial in the instant case for November 1982 but on January 19, 1983 the district court granted summary judgment in favor of INA, finding that the damage to the tippler building was not fortuitous. This court reversed and remanded for trial on the merits. On remand, the bucket wheel case and the tippler case were consolidated. The six-week non-jury trial began on February 11, 1985. A jury trial was held, to determine damages, from April 9, 1985 to May 8, 1985. The jury returned a verdict in favor of INA on the bucket wheel claim but, in favor of CBG on the tippler building claim. They determined that CBG had suffered a loss of 935,250 metric tons of bauxite. Based on the stipulated value of bauxite, the trial judge calculated an actual loss of $10,701,526. He entered judgment for CBG for the policy's limit of $10,000,000 and awarded prejudgment interest at a rate of six percent from April 18, 1975 to May 15, 1985 for a total judgment of $16,044,383.56.

II. NOTICE OF LOSS

12. The district court held that "notice to INA on January 24, 1975 was reasonable in time and form under the circumstances." INA claims that the notice of loss required by the policy was not obtained by INA until June 1975 when CBG sent them a letter regarding their business interruption loss claim. INA asserts 1) that CBG was required to give notice within sixty days of September 2, 1974, the date on which it discovered the cracks; 2) that information from a third party does not constitute notice; 3) that Mars's January 1975 report contained insufficient information to give INA notice of a potential business interruption loss claim.

13. The district court ruled that INA had received notice on January 24, 1975 through Mars's report. We do not believe that the district court erred in making this finding. Gelinas' report to Stel contained the following passage:

It appears that some months ago one of the engineers of CBG from their Head Office, while visiting the site, noticed that this particular building was cracked, which he considered a very serious situation. He discussed this problem with the engineer in charge, who replied that this was only shrinkage in the cement. The man was immediately fired and replaced, because the head office engineer realized that the building was about to collapse, and since then they have undertaken to reinforce the building one side at a time, placing them in a position where they cannot unload from both sides, and therefore, delaying their operation tremendously, causing a loss of production.

I am led to believe that this work will not be finished until next summer. The cracks in the building were actually caused by the fact that some 10 ton chunks of bauxite were unloaded by the tilter, hitting the steel floor, which made the building shade to such a degree that all the cement structure started to crack. For this reason, as it ...


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