                                                                            FILED
                           NOT FOR PUBLICATION                              FEB 10 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



NAAMAN SHEPARD,                                  No. 09-35291

             Plaintiff - Appellant,              D.C. No. 2:08-cv-00434-RAJ

  v.
                                                 MEMORANDUM *
FOREMOST INSURANCE COMPANY
INC.,

             Defendant - Appellee.



                    Appeal from the United States District Court
                      for the Western District of Washington
                    Richard A. Jones, District Judge, Presiding

                      Argued and Submitted February 3, 2010
                               Seattle, Washington

Before: ALARCÓN, W. FLETCHER and RAWLINSON, Circuit Judges.

       Naaman Shepard (Shepard) appeals the district court’s judgment following a

bench trial that the marine insurance policy issued by Foremost Insurance

Company (Foremost) did not cover his loss.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. The Washington proximate cause rule, see Wright v. Safeco Ins. Co. of

Am., 124 Wash. App. 263, 273-74 (Wash. Ct. App. 2004), and the federal

proximate cause rule, see Commodities Reserve Co. v. St. Paul Fire & Marine Ins.

Co., 879 F.2d 640, 643 (9th Cir. 1989), are substantially similar. Therefore, any

error in applying the Washington law was harmless. See Coutee v. Barington

Capital Group, L.P., 336 F.3d 1128, 1134-35 (9th Cir. 2003) (applying harmless

error to a choice of law decision).




      2. The policy exclusion for “lack of reasonable care or due diligence in the

maintenance of your watercraft” is unambiguous and must be enforced. See

Conrad v. Ace Prop. & Cas. Ins. Co., 532 F.3d 1000, 1005 (9th Cir. 2008).




      3. The district court did not clearly err in finding that the efficient proximate

cause of the loss was a lack of reasonable and proper maintenance because trial

testimony supports the finding. See Exxon Co. v. Sofec, Inc., 54 F.3d 570, 576 (9th

Cir. 1995).




      4. Shepard’s reliance on Founders’ Ins. Co. v. Rogers, 305 F.2d 944 (9th

Cir. 1962) is inapt. Rogers was decided under English law and a policy provision


                                          2
providing that the vessel owner discharged his responsibility under the policy by

delegating the maintenance responsibility to the master. See id. at 945.

      AFFIRMED.




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