The First Circuit recently determined the efficient proximate cause doctrine would not apply under Maine law.  See First Specialty Ins. Corp. v. Am. Home Assurance Co., 2009 U.S. App. LEXIS 3943 (Feb. 27, 2009 1st Cir.). 

    The insured was hired to deliver a construction barge on the Merrimack River using a tug.  As he attempted to maneuver the tug and barge to enter the Merrimack River, strong winds pushed the barge alongside the tug and then pushed both vessels out of the channel, eventually grounding them on a island.  The liability policy excluded "'property damage' arising out of the ownership, maintenance, use or entrustment to others of any . . . watercraft owned or operated by . . . any insured."      

    The First Circuit initially determined the barge was a watercraft under the policy.  The insured, however, did not own or rent the barge.  The insured did operate the barge, using the tug to attempt to maneuver the barge through the wind.  Therefore, the barge fit within the watercraft exclusion of the policy.

    The court next considered whether the operation of the tugboat was theefficient proximate cause of the occurrence?  The efficient proximate cause doctrine permitted coverage "when an insured peril sets other excluded perils into motion which in an unbroken sequence and connection between the act and final loss, produce the result for which recovery is sought."  Kish v. Ins. Co. of N. Am.,883 P.2d 308, 311 (Wash. 1994).  "In such a situation, the insured peril is considered the 'proximate cause' of the entire loss and the loss is covered despite the fact that other perils contributing to the loss were excluded."  Id. 

    The First Circuit noted it was unclear whether Maine courts would apply the doctrine.  Regardless, the doctrine was applicable here because the causes were not independent.  The tug and barge were operated together, maneuvering the tug so as to move the barge as needed.