Hasbro Indus., Inc. v. M/s \St. Constantine, 705 F.2d 339 (1983). · Go Syfert
Hasbro Indus., Inc. v. M/s \St. Constantine, 705 F.2d 339 (1983). Cases Citing This Book View Copy Cite
35 citation events (3 in the last 25 years) across 9 distinct courts.
Strongest positive: Cap Export, LLC v. Zinus, Inc. (cafc, 2021-05-05)
Treatment trajectory · 1984 → 2026 · click a year to view as-of
1984 2005 2026
Top citers, strongest first. 22 distinct citers. How cited ↗
cited Cited as authority (rule) Cap Export, LLC v. Zinus, Inc.
Fed. Cir. · 2021 · confidence medium
Constantine, 705 F.2d 339, 342 (9th Cir. 1983) (per curiam).
cited Cited as authority (rule) Wilson v. Beard
3rd Cir. · 2005 · confidence medium
Constantine,” 705 F.2d 339, 341 (9th Cir.1983).
cited Cited as authority (rule) Wilson v. Beard
3rd Cir. · 2005 · confidence medium
Constantine, " 705 F.2d 339, 341 (9th Cir.1983).
cited Cited as authority (rule) Stephen Leslie v. Grupo Ica
9th Cir. · 1999 · confidence medium
Constantine, 705 F.2d 339, 343 (9th Cir. 1983).
cited Cited as authority (rule) Leslie v. Grupo ICA
9th Cir. · 1999 · confidence medium
Constantine, 705 F.2d 339, 343 (9th Cir.1983).
cited Cited as authority (rule) Clifton v. Voyager Inc.
amsamoa · 1996 · confidence medium
Constantine, 705 F.2d 339, 341 (9th Cir. 1983), cert. denied, 464 U.S. 1013 , 78 L.
examined Cited as authority (rule) Nissan Fire & Marine Insurance v. M/V Hyundai Explorer (3×) also: Cited "see", Cited "see, e.g."
9th Cir. · 1996 · confidence medium
Constantine, 705 F.2d 339, 342 (9th Cir.1983) (holding that the negligence of the “shipowner’s supervisory or managing employees” was sufficient to find personal negligence); In re Ta Chi Navigation Corp., S.A, 677 F.2d 225, 228 (2d Cir.1982) (“ ‘Neglect’ ... means negligence, not the breach of a non-delegable duty.”); Sunkist, 603 F.2d at 1336 (stating that “ ‘neglect of the owner’ under the Fire Statute refers to ‘the neglect of the managing officers and agents as distinguished from that of the master or other members of the crew’ ”) (quoting Albina Engine & Machine…
examined Cited as authority (rule) Nissan Fire & Marine Insurance Company, Ltd. Taiko Bussan Kaisha, Ltd. v. M/v Hyundai Explorer, Her Engines and Appurtenances, Etc. Hyundai Merchant Marine Company, Ltd., Fireman's Fund Insurance Companies, a Corporation American Home Assurance Co., a Corporation v. M/v Hyundai Explorer, Her Engines, Tackle, MacHinery Etc. Hyundai Merchant Marine Company, Ltd. (3×) also: Cited "see", Cited "see, e.g."
9th Cir. · 1996 · confidence medium
Constantine, 705 F.2d 339, 342 (9th Cir.1983) (holding that the negligence of the "shipowner's supervisory or managing employees" was sufficient to find personal negligence); In re Ta Chi Navigation Corp., S.A., 677 F.2d 225, 228 (2d Cir.1982) (" 'Neglect' ... means negligence, not the breach of a non-delegable duty."); Sunkist, 603 F.2d at 1336 (stating that " 'neglect of the owner' under the Fire Statute refers to 'the neglect of the managing officers and agents as distinguished from that of the master or other members of the crew' ") (quoting Albina Engine & Machine Works v. Hershey Chocola…
discussed Cited as authority (rule) Henry J. Ollerdessen v. United States of America, and Frutec, Inc., a Corporation
9th Cir. · 1996 · confidence medium
Constantine, 705 F.2d 339, 343 (9th Cir.) (per curiam) (appellate court lacks jurisdiction over issue raised in district court but not raised on appeal), cert. denied, 464 U.S. 1013 (1983); cf. Gould, 790 F.2d at 772 (district court is divested of jurisdiction where the underlying judgment has been appealed). 8 Accordingly, we vacate the district court's order of August 24, 1994 and remand for the district court to consider Ollerdessen's August 11, 1994 motion.
cited Cited as authority (rule) Exxon Co. v. Sofec, Inc.
9th Cir. · 1995 · confidence medium
Constantine, 705 F.2d 339, 341 (9th Cir.), cert. denied, 464 U.S. 1013 , 104 S.Ct. 537 , 78 L.Ed.2d 717 (1983).
discussed Cited as authority (rule) Exxon Company Exxon Shipping Company, Plaintiffs-Counter-Defendants-Third-Party v. Sofec, Inc., Defendant-Counter-Claimant-Appellee. Pacific Resources, Inc. Hawaiian Independent Refinery, Inc. Pri Marine, Inc. Pri International, Inc., Defendants-Cross-Claimants-Third-Party v. Griffin Woodhouse, Griffin Woodhouse, Inc., Third-Party Bridon Fibres and Plastics, Ltd., Defendant-Third-Party
3rd Cir. · 1995 · confidence medium
Constantine, 705 F.2d 339, 341 (9th Cir.), cert. denied, 464 U.S. 1013 , 104 S.Ct. 537 , 78 L.Ed.2d 717 (1983). 34 Exxon "recognizes the futility of attacking on appeal the district court's finding that Captain Coyne was negligent" because of conflicting expert testimony on that issue, but argues that the district court erred: 1) in finding Captain Coyne's actions to have been extraordinarily negligent; and 2) in finding Captain Coyne's negligence, even if correctly characterized as "gross," to have been the legal cause of the loss. 35 The district court made detailed findings of fact and conc…
discussed Cited as authority (rule) Arthur Tate, Warden v. Timothy Flenoy
6th Cir. · 1995 · confidence medium
Constantine", 705 F.2d 339, 341 (9th Cir.) (negligence), cert. denied, 464 U.S. 1013 (1983). "[D]eferential review of mixed questions of law and fact is warranted when it appears that the district court is 'better positioned' than the appellate court to decide the issue in question or that probing appellate scrutiny will not contribute to the clarity of legal doctrine." Salve Regina College v. Russell, 499 U.S. 225, 233 (1991) (emphasis added).
discussed Cited as authority (rule) Kruso v. International Telephone & Telegraph Corp.
9th Cir. · 1989 · confidence medium
Constantine", 705 F.2d 339, 343 (9th Cir.), cert. denied, 464 U.S. 1013 , 104 S.Ct. 537 , 78 L.Ed.2d 717 (1983), in which this court stated that appellants "[are] required to file their appeal on all issues of which they wish[ ] review within 30 days of entry of the district court's final judgment...." Because appellants in that case brought, in addition to a timely appeal, a separate appeal after the 30-day limit imposed by Rule 4(a)(1) of the Federal Rules of Appellate Procedure, the Hasbro court refused to consider the issues raised in the latter appeal along with the issues raised in appel…
discussed Cited as authority (rule) Kruso v. International Telephone & Telegraph Corp.
9th Cir. · 1989 · confidence medium
Constantine", 705 F.2d 339, 343 (9th Cir.), cert. denied, 464 U.S. 1013 , 104 S.Ct. 537 , 78 L.Ed.2d 717 (1983), in which this court stated that appellants “[are] required to file their appeal on all issues of which they wish[ ] review within 30 days of entry of the district court’s final judgment. ...” Because appellants in that case brought, in addition to a timely appeal, a separate appeal after the 30-day limit imposed by Rule 4(a)(1) of the Federal Rules of Appellate Procedure, the Hasbro court refused to consider the issues raised in the latter appeal along with the issues raised i…
cited Cited as authority (rule) Columbia Marine Service, Inc. v. Dravo Mechling Corp.
S.D. Ohio · 1987 · confidence medium
Constantine, 705 F.2d 339, 341 (8th Cir.1983).
discussed Cited as authority (rule) Fireman's Fund Insurance Companies v. M/V Vignes
11th Cir. · 1986 · confidence medium
CONSTANTINE, 705 F.2d 339, 341 (9th Cir.1983) ("due diligence is essentially a negligence concept and ... determinations of negligence in admiralty cases are findings of fact which will be given application unless clearly erroneous"), cert. denied, 464 U.S. 1013 , 104 S.Ct. 537 , 78 L.Ed.2d 717 .
discussed Cited as authority (rule) Fireman's Fund Insurance Companies v. M/V Vignes
11th Cir. · 1986 · confidence medium
CONSTANTINE, 705 F.2d 339, 341 (9th Cir.1983) (“due diligence is essentially a negligence concept and ... determinations of negligence in admiralty cases are findings of fact which will be given application unless clearly erroneous”), cert. denied, 464 U.S. 1013 , 104 S.Ct. 537 , 78 L.Ed.2d 717 .
cited Cited as authority (rule) Ente Nazionale Per L'Energia Electtrica v. Baliwag Navigation, Inc.
4th Cir. · 1985 · confidence medium
Constantine, 705 F.2d 339, 341 (9th Cir.1983), ce rt. denied, — U.S. —, 104 S.Ct. 537 , 78 L.Ed.2d 717 (1983).
cited Cited as authority (rule) Ente Nazionale Per L'EnErgia Electtrica v. Baliwag Navigation, Inc. And Wheelock Marine Services, Ltd., and Rex Shipping Company S.A. Of Panama in Personam and M/v Kuniang, Her Engines, Tackle, and Apparel, Etc., in Rem v. Cravat Coal Company, Third Party and Third Party v. Baliwag Navigation, Inc., Wheelock Marine Services, Ltd., Almare Societa Di Navigazione S.P.A., Cooper Stevedoring Company, Inc., Third Party and Alla-Ohio Valley Coals, Inc., Ente Nazionale Per L'EnErgia Electtrica v. Baliwag Navigation, Inc. And Wheelock Marine Services, Ltd., and Rex Shipping Company S.A. Of Panama in Personam and M/v Kuniang, Her Engines, Tackle, and Apparel, Etc., in Rem v. Cravat Coal Company v. Baliwag Navigation, Inc., Wheelock Marine Services, Ltd., Almare Societa Di Navigazione S.P.A., Cooper Stevedoring Company, Inc., and Alla-Ohio Valley Coals, Inc., Third Party Ente Nazionale Per L'EnErgia Electtrica v. Baliwag Navigation, Inc. And Wheelock Marine Services, Ltd., and Rex Shipping Company S.A. Of Panama in Personam and M/v Kuniang, Her Engines, Tackle, and Apparel, Etc., in Rem, and Third Party v. Cravat Coal Company v. Baliwag Navigation, Inc., Wheelock Marine Services, Ltd., Almare Societa Di Navigazione, S.P.A., Third Party Cooper Stevedoring Company, Inc., and Alla-Ohio Valley Coals, Inc., Ente Nazionale Per L'EnErgia Electtrica v. Baliwag Navigation, Inc. And Wheelock Marine Services, Ltd., and Rex Shipping Company S.A. Of Panama, in Personam, and M/v Kuniang, Her Engines, Tackle, and Apparel, Etc., in Rem, and Third Party v. Cravat Coal Company v. Baliwag Navigation, Inc., Wheelock Marine Services, Ltd., Almare Societa Di Navigazione S.P.A., Cooper Stevedoring Company, Inc., Third Party and Alla-Ohio Valley Coals, Inc., Ente Nazionale Per L'EnErgia Electtrica v. Baliwag Navigation, Inc. And Wheelock Marine Services, Ltd., and Rex Shipping Company S.A. Of Panama, in Personam, and M/v Kuniang, Her Engines, Tackle, and Apparel, Etc., in Rem, and Third Party v. Cravat Coal Company v. Baliwag Navigation, Inc., Wheelock Marine Services, Ltd., Almare Societa Di Navigazione S.P.A., Cooper Stevedoring Company, Inc., Third Party and Alla-Ohio Valley Coals, Inc.
3rd Cir. · 1985 · confidence medium
Constantine, 705 F.2d 339, 341 (9th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 537 , 78 L.Ed.2d 717 (1983).
cited Cited as authority (rule) Haluapo v. Akashi Kaiun, K.K., S.A.M., Inc.
9th Cir. · 1984 · confidence medium
Constantine”, 705 F.2d 339, 342-43 (9th Cir.), cert. denied, — U.S. —, 104 S.Ct. 537 , 78 L.Ed.2d 717 (1983). 2 Ill CONCLUSION The judgment of the district court is AFFIRMED. .
discussed Cited as authority (rule) Haluapo v. Akashi Kaiun
9th Cir. · 1984 · confidence medium
Constantine", 705 F.2d 339, 342-43 (9th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 537 , 78 L.Ed.2d 717 (1983). 2 III CONCLUSION 9 The judgment of the district court is AFFIRMED. 1 It would be possible to interpret the time charter as creating an agency relationship between the Time Charterer and the master of the vessel.
discussed Cited "see, e.g." United States v. Winston Bryant McConney (2×)
9th Cir. · 1984 · signal: compare · confidence low
Compare Hasbro Industries, 705 F.2d 339 , with Great Atlantic & Pacific Tea Co. v. Brasileiro, 159 F.2d 661, 665 (2d Cir.) (non-deferential standard applied to negligence determination in admiralty case), cert. denied sub nom.
Retrieving the full opinion text from the archive…
\"
v.
A/s Garonne-Glittre
May 4, 1983.
705 F.2d 339
RU
Canby, Norris, Per Curiam, Reinhardt.
PER CURIAM:

Appellants Hasbro Industries, Inc., and A.A. Importing, Inc., were owners or underwriters of cargo destroyed when a fire broke out aboard the M/S St. Constantine, a cargo ship owned by the St. Constantine Maritime Co., Ltd. Appellants filed claims in a limitation proceeding brought by the vessel under the Limitation of Liability Act, 46 U.S.C. §§ 190-195 (1976). The claims were based upon the carriage of Goods by Sea Act (COGSA), 46 U.S.C. §§ 1300-1315 (1976). The district court found that the fire started when a lube oil line valve fractured due to excessive engine vibration and the absence of a necessary pipe support bracket, causing oil to spill onto the hot exhaust manifold and ignite. The crew was unable to extinguish the blaze because of inadequate training in firefighting techniques. The court concluded that the shipowner had notice of the defects and lack of training and was therefore liable because it failed to exercise due diligence to ensure that the vessel was seaworthy and that the crew was properly trained. The shipowner has not appealed.

Appellees A/S Garonne-Glittre and Barber Lines A/S intervened as plaintiffs in the proceedings below. Appellees were time charterers and subcharterers, respectively, of the vessel, with whom appellants had contracted for the transport of their goods. Appellants cross-claimed against appellee-charterers, alleging that the charterers were also liable because their duty to exercise due diligence was identical to the duty owed by a shipowner under COGSA, so that a breach of that duty by the shipowner was necessarily a breach by the charterers. The district court disagreed, finding that the charterers were absolved from liability because they had acted with the due diligence expected of reasonably prudent time charterers. We affirm.

Under COGSA, both shipowners and charterers who enter into a contract for carriage of goods are considered “carriers.” 46 U.S.C. § 1301(a). As such, shipowners and charterers must exercise due diligence to make the vessel seaworthy and to properly man, equip, and supply the ship. 46 U.S.C. § 1303(1), (2). If a carrier exercises due diligence, then the carrier will be exonerated from liability for loss due to fire unless caused by the carrier’s “actual fault or privity.” 46 U.S.C. § 1304(2)(b). Thus, the overriding obligation under COGSA is the duty to exercise due diligence. Sunkist Growers Inc. v. Adelaide Shipping Lines, 603 F.2d 1327, 1338 (9th Cir.1979), cert. denied, 444 U.S. 1012, 100 S.Ct. 659, 62 L.Ed.2d 640 (1980).

Appellants claim that the question whether due diligence has been exercised is a question of law reviewable de novo on appeal. On the contrary, this circuit has repeatedly held that due diligence is essentially a negligence concept and that determinations of negligence in admiralty cases are findings of fact which will be given application unless clearly erroneous. Waterman Steamship Corp. v. Gay Cottons, 414 F.2d 724, 735 n. 27 (9th Cir.1969); Rederi A/B Soya v. SS Grand Grace, 369 F.2d 159, 163 (9th Cir.1966). Of course, it is true that the question of what standard should be applied in determining due diligence is a question of law. Id. We find, however, that the district court applied the correct standard here. To hold otherwise would impose liability on time charterers for unseaworthiness resulting from the shipowner’s lack of due diligence, regardless of whether the charterer acted reasonably and prudently. As we stated in Sunkist, “[I]f the carrier used due diligence, the unseaworthiness would be excusable.” 603 F.2d at 1335 (emphasis omitted). Thus, where the charterers exercised due diligence but the shipowner did not, only the shipowner will be held liable, and the unseaworthiness is excusable with respect to the charterers.

Appellants’ basic assertion is that the shipowner’s duty of due diligence is identical to the charterer’s, with the result that[*342] whenever the one breaches its duty the other is liable vicariously. In support of this proposition, appellants cite section 1301(a) of the Act and Sunkist.

First, section 1301(a) serves only to include both shipowners and charterers within the definition of “carrier.” While both owe a duty of due diligence as a matter of law, 46 U.S.C. § 1304(1), the question whether particular circumstances amount to a breach is one of fact, the determination of which will vary with the circumstances. See Waterman Steamship Corp., 414 F.2d at 735 n.27. Since liability for loss by fire may be imposed only where there is “actual fault,” 46 U.S.C. § 1304(2)(b), a breach is necessarily personal to the “carrier” that is responsible for the harm. Thus, it is perfectly comprehensible that in some cases a shipowner may be liable when a charterer is not. Nothing in the statute suggests otherwise.

Second, the Sunkist case deals primarily with allocation of the burden of proof in COGSA cases, and with the trial court’s error in shifting the burden to the cargo claimants once the carrier had made an initial showing. See 603 F.2d at 1331, 1341. Because the court used the plural in referring to the potential liability of “appellees,” meaning both shipowner and charterer, appellants maintain that both must be liable in every case. This overlooks the Sunkist court’s statement that the “obligation to exercise due diligence ... [applies] to the owners or charterers personally.” Id. at 1341 (emphasis supplied). Sunkist does not require that the liability of one “carrier” must be imputed to all others. On the contrary, a district court must consider evidence of the extent and nature of the acts, omissions, and knowledge of the shipowner and charterer separately — just as the trial court did here. While this may sometimes lead to joint liability, it need not in every case.

The district court found that the shipowner, through its managerial employees, knew of the excessive vibration from a 1970 inspection report and from the purchase and replacement of an unusually high number of “holding down” bolts within the two years prior to the fire, but it failed to investigate the cause or effects of the engine vibration. The vessel owner also failed to take reasonable steps to ensure adequate training through periodic drills or formal instruction to all crew members on firefighting techniques. In addition, the shipowner knew that a pipe support bracket should have been attached to the lube oil pipe, and a reasonable inspection would have disclosed that the bracket was missing. This negligent conduct by the shipowner’s supervisory or managing employees constituted a failure by the shipowner to exercise due diligence. See Sunkist, 603 F.2d at 1136.

The same cannot be said of the charterers. They were not privy to the knowledge held by the vessel owner and its managing employees. Nor were they in control of maintenance and repairs; under the terms of the charter party the shipowner was solely responsible for maintenance. There is no evidence that the charterers knew about the 1970 report, the increasing and unusual number of broken “holding down” bolts in the two years prior to the fire, or the failure to train the crew adequately in firefighting techniques. Even if the inspections mandated within the charter party revealed that there had once been a bracket on the pipe, there would have been insufficient reason for the charterers to conclude that the condition of the engine was unsafe.

Moreover, the charterers proffered affirmative evidence to show that they exercised due diligence, and the district court found that they thereby sustained their burden of proof. We cannot say that that finding is clearly erroneous. Waterman Steamship Corp., supra. The charterers mandated within the charter party (1) that the vessel and crew be classified in the highest classification society; (2) that the vessel comply with all applicable provisions of the Safety of Life at Sea Convention (SOLAS); and (3) that numerous on-line and class survey inspections be performed[*343] as a prerequisite to their continued use of the St. Constantine. Under these circumstances the charterers did all that could be expected of diligent time charterers.

As the district judge noted during trial: [T]he charterer [would be] responsible if the ship were unseaworthy and the fire was caused by that which should have been clearly apparent to the charterer.
But we do not have that situation here. We have the charterer endeavoring through the surveys to keep the ship a seaworthy vessel. We also have the charterer before any charter was entered into having first acquainted itself of the quality of the ship; that the ship, insofar as construction was concerned and its ... condition at the time of the charter, was a ship that the charterer felt was seaworthy in every respect and fully able of taking care of the cargo of the charterer’s clients.

Since we affirm the district court’s conclusion that the charterers are not liable for the damage caused by the fire, we need not consider the issue presented in the cross-appeal, i.e., whether the COGSA limitation of liability applies to charterers.

Finally, we must address the question whether appellants’ separate appeal was timely. The district court entered final judgment in this case on October 31, 1981. In addition to awarding damages against the shipowner and absolving charterers from liability, the court allowed the appellants prejudgment interest — -but only at the rate permitted under Hawaii law. Appellants filed their notice of appeal on November 30, 1981. They made no challenge at that time to the rate of interest fixed by the district court. It was not until December 24, 1981, in a separate appeal, that appellants raised that issue. Although this separate appeal was well beyond the 30-day period within which an appeal must be filed, Fed.R.App.P. 4(a)(1), appellants contend that the appeal period did not begin tó run until appellees filed their cross-appeal on December 10, 1981. No authority is offered for the notion that a cross-appeal somehow enlarges the time for appeal in this way, and we have found none. Appellants were required to file their appeal on all .issues of which they wished review within 30 days of entry of the district courts final judgment on October 31. With respect to the issue of prejudgment interest, they failed to do so and therefore the separate appeal is time barred by Rule 4(a)(1).

AFFIRMED.