California corporation,
                                                                                  No. 99-16209
                                                                                  D.C. No.
HIH CASUALTY & GENERAL                                        CV-97-04174-CRB

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



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.



RAWLINSON, Circuit Judge:

The Pacific Fisheries Corp. ("Fisheries") appeals the dis-
trict court's judgment following bench trial and denial of

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.


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

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.
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.

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.

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-

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
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).

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

[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.

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

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.


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.