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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PACIFIC FISHERIES CORPORATION, a
California corporation,
Plaintiff-Appellant,
No. 99-16209
v.
D.C. No.
HIH CASUALTY & GENERAL
CV-97-04174-CRB
INSURANCE, LTD.; HIH MARINE
INSURANCE SERVICES, INC.; HARLOCK
OPINION
WILLIAMS LEMON, LTD., a
corporation,
Defendants-Appellees.
Appeal from the United States District
Court
for the Northern District of California
Charles R. Breyer, District Judge,
Presiding
Argued and Submitted
November 15, 2000--San Francisco, California
Filed February 9, 2001
Before: J. Clifford Wallace, Raymond
C. Fisher, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Rawlinson
_________________________________________________________________
COUNSEL
Dorothy F. Henson, Henson &
Henson, San Francisco, Cali-
fornia, for the plaintiff-appellant.
Robert N. Windes, Le Gros, Buchanan
& Paul, Seattle, Wash-
ington, for the defendants-appellees.
_________________________________________________________________
OPINION
RAWLINSON, Circuit Judge:
The Pacific Fisheries Corp. ("Fisheries")
appeals the dis-
trict court's judgment following bench
trial and denial of
1851
Fisheries' motion for a new trial in
its diversity action against
HIH Casualty & General Insurance
and HIH Marine Insur-
ance Companies ("The Insurers").
Fisheries alleges that the
court erred in denying its untimely
demand for a jury trial.
Fisheries also contends that because
the breach of the trading
warranty contained in the marine insurance
policies did not
itself cause the loss, its losses should
have been covered.
Because the district court properly
denied the untimely jury
demand and correctly found that the
insurance policies were
voided by breach of the trading warranty,
we affirm.
BACKGROUND
The Appellant, Fisheries, operates
a fishing vessel called
the Icy Point. The Icy Point embarked
on a fishing excursion
in the Pacific Ocean from San Francisco
on February 17,
1997. On March 11, 1997, Fisheries
purchased insurance cov-
erage from The Insurers under two policies:
a Protection and
Indemnity Policy ("P&I")
and a Hull and Machinery Policy
("Hull"). Each of these policies
contained an identical trading
warranty which provided that Fisheries'
insured vessel was
confined to the Pacific Ocean and was
not to travel beyond
certain points of that ocean.1
On March 31, 1997, the Icy Point
began traveling to Guam
in the normal course of business. The
travel to Guam consti-
tuted a breach of the trading warranty.
While in Guam, an
employee of the ship filed a lawsuit
against Fisheries on the
ground that the malfunction of the
boat's freshwater system
caused him to suffer dehydration. When
Fisheries informed
The Insurers of these events, The Insurers
advised Fisheries
that they needed to determine the reason
for the ship's breach
_________________________________________________________________
1 The vessel was "confined to
the waters and tributaries of the Pacific
Ocean not west of 165 degree E. longitude,
not south of 30 degrees S. lati-
tude, and not north of 55 degrees N.
latitude." This area does not include
Guam.
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of the trading warranty before agreeing
to defend against the
employee's claim. Further, The Insurers
told Fisheries that
they would not extend the trading warranty
in general, even
if they ultimately extended the warranty
for the limited pur-
pose of defending against the employee's
claim.
The vessel departed Guam on May
10, 1997 and proceeded
north, remaining outside the trading
warranty area. Approxi-
mately one week later, the Icy Point
experienced an engine
breakdown. When Fisheries informed
The Insurers of the
breakdown, The Insurers refused coverage
on the ground that
the vessel once again was in breach
of the trading warranty.
Fisheries filed suit for breach
of insurance contract in Cali-
fornia Superior Court on October 22,
1997. The Insurers
removed the action to the district
court for the Northern Dis-
trict of California, based on diversity,
on November 14, 1997.
After Fisheries' Motion to Remand was
denied, The Insurers
answered Fisheries' complaint on July
31, 1998. Fisheries
filed a demand for a jury trial on
August 28, 1998. Pursuant
to Federal Rule of Civil Procedure
38(b), Fisheries' demand
was due on August 10, 1998.2 The district
court denied the
demand as untimely.
Following a bench trial, the district
court ruled in favor of
The Insurers and entered judgment on
April 1, 1999. The
court found that the trading warranty
provision was material
to the insurance policy and that Fisheries
had deliberately
breached the warranty in complete disregard
of the terms of
the insurance contract.
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2 Rule 38(b) provides in relevant part,
"Any party may demand a trial
by jury of any issue triable of right
by a jury by (1) serving upon the other
parties a demand . . . not later than
10 days after the service of the last
pleading directed to such issue . .
. ." Because the answer filed by The
Insurers on July 31, 1998 was the "last
pleading directed to such issue,"
Fisheries' jury demand was due within
10 days of July 31, or August 10.
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Fisheries filed a motion for a new
trial on April 12, 1999,
which was denied on May 14, 1999. Fisheries
filed its timely
notice of appeal on June 11, 1999.
We have jurisdiction pur-
suant to 28 U.S.C. S 1291.
Jury Demand
We review the district court's denial
of Fisheries' untimely
demand for a jury trial for an abuse
of discretion. See Ticor
Title Ins. Co. v. Florida, 937 F.2d
447, 451-52 (9th Cir.
1991).
Fisheries contends that the district
court erred in denying its
demand for a jury trial pursuant to
Federal Rule of Civil Pro-
cedure 39(b).3 We have held,
The
district court, in its discretion, may order a jury
trial
on a motion by a party who has not filed a
timely
demand for one. F.R. Civ. P. 39(b). That dis-
cretion
is narrow, however, and does not permit a
court
to grant relief when the failure to make a
timely
demand results from an oversight or inadver-
tence.
Lewis v. Time Inc., 710 F.2d 549,
556-57 (9th Cir. 1983); see
also Chandler Supply Co. v. GAF Corp.,
650 F.2d 983, 987-
88 (9th Cir. 1980).
[1] An untimely request for a jury
trial must be denied
unless some cause beyond mere inadvertence
is shown. See
Mardesich v. Marciel, 538 F.2d 848,
849 (9th Cir. 1976); see
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3 Issues not demanded for trial
by jury as provided in Rule 38 shall
be tried
by the court; but, notwithstanding the failure of a party
to demand
a jury in an action in which such a demand might have
been
made of right, the court in its discretion upon motion may
order
a trial by a jury of any or all issues.
Fed. R. Civ. P. 39(b).
1854
also Russ v. Standard Ins. Co., 120
F.3d 988, 989-90 (9th Cir.
1997) (holding that the district court
could not employ
another rule to circumvent this circuit's
prohibition on grant-
ing untimely jury demands due to inadvertence);
Kletzelman
v. Capistrano Unified Sch. Dist., 91
F.3d 68, 71 (9th Cir.
1996) (denying untimely jury demand
when due to counsel's
oversight and inadvertence); Wall v.
Nat'l R.R. Passenger
Corp., 718 F.2d 906, 910 (9th Cir.
1983) (holding district
court's denial of untimely jury demand
not an abuse of discre-
tion where counsel's inadvertence was
the only reason
shown).
[2] Fisheries attempts to distinguish
between inadvertence
and what it characterizes as a good
faith mistake of law.
Apparently, counsel misinterpreted
Federal Rule 81(c), North-
ern District of California's local
rules and state civil proce-
dure rules and erroneously calculated
the period of time
available to make the demand. Counsel's
reasons for his
errors are of no consequence because
they are still due to
inadvertence or oversight. Therefore,
pursuant to the prece-
dent of this circuit, the jury demand
was untimely.
In Beckham v. Safeco Ins. Co. of
Am., 691 F.2d 898, 905
(9th Cir. 1982), the plaintiff also
attempted to excuse a late
demand for a jury trial because her
attorney mistakenly
believed that no demand was necessary
under Federal Rule
81(c). We held, "these facts .
. . show nothing more than inad-
vertence and neglect. The district
court thus did not abuse its
discretion in refusing to order a jury
trial." Id. As in Beckham,
the district court in the present case
did not abuse its discre-
tion in denying the demand because
counsel inadvertently
missed the deadline. A good faith mistake
of law is no differ-
ent than inadvertence or oversight.
Therefore, an untimely
jury demand due to legal mistake does
not broaden the district
court's narrow discretion to grant
the demand.4
_________________________________________________________________
4 Fisheries also attempted to distinguish
this case on the basis that the
district court judge stated he had
no discretion to grant a jury trial. Rather,
the judge recognized his limited discretion
under the law of this circuit.
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Breach of Trading Warranty
The district court's interpretations
of state law are reviewed
de novo. See Wetzel v. Lou Ehlers Cadillac
Group, 222 F.3d
643, 646 (9th Cir. 2000).5
[3] Fisheries also argues that the
district court erred in hold-
ing that the insurance policies were
void due to Fisheries'
breach of the trading warranty.6 Fisheries
contends that
because the breach of the trading warranty
itself did not cause
the loss claimed, the policies are
still effective. However,
under California law, "breach
of even an immaterial warranty
will void a policy `where the policy
expressly declares that it
shall avoid it.' " Certain Underwriters
at Lloyd's v. Montford,
52 F.3d 219, 223 (9th Cir. 1995) (citations
omitted). Causa-
tion between the breach of warranty
and any loss claimed is
not required. In the present case,
Fisheries received notice that
any breach of the trading warranty
would render coverage
under the policy void. Accordingly,
the district court did not
err in finding the policies void.
Motion for New Trial
We review the district court's denial
of Fisheries' motion
for a new trial for an abuse of discretion.
See DeSaracho v.
Custom Food Mach., Inc., 206 F.3d 874,
880 (9th Cir. 2000).
The district court did not abuse
its discretion in denying
Fisheries' motion for a new trial.
The court ruled that Fish-
eries had presented no case law to
support its contention that
_________________________________________________________________
5 Because this was a diversity action,
it was governed by the law of the
forum state. See Enron Oil Trading
& Transp. Co. v. Walbrook Ins. Co.
Ltd., 132 F.3d 526, 528 (9th Cir. 1997)
(court sitting in diversity applies
the law of the forum state).
6 During oral arguments, counsel for
Fisheries informed us that it was
waiving its waiver and estoppel argument.
Accordingly, this issue is not
addressed.
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The Insurers were required to show
that the breach of the
trading warranty caused the alleged
loss and, in any event, the
terms of the warranty were material
to The Insurers' agree-
ment to provide insurance. Also, the
court reiterated that Fish-
eries had disregarded the insurance
contract and deliberately
breached the trading warranty.
CONCLUSION
The district court did not abuse
its discretion by concluding
that Fisheries had waived its right
to a jury trial by failing to
file a timely jury demand. The court's
discretion was narrow
because Fisheries' untimely demand
was due to a mistake of
law, which is no different than inadvertence
or oversight.
Additionally, the court did not err
in concluding that the poli-
cies were void due to Fisheries' breach
of the trading war-
ranty, regardless of the relationship
between the breach and
the loss. Under California marine insurance
law, causation is
not required and The Insurers are not
liable for the loss. No
abuse of discretion occurred in the
denial of Fisheries' motion
for a new trial.
AFFIRMED.
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