Opinion

M&z Trading Corp. v. Hecny Group

  • 41 F. App'x 141
Court
Court of Appeals for the Ninth Circuit
Filed
Jul 12, 2002
Status
Published
Author
Fernandez
On the bench
Fernandez
Cited by
2 cases
Authority
More cited than 20.6%

finding no abuse of discretion in District Court's exclusion of translated exhibits— rather than untranslated original documents — because "[wjithout providing any affidavits or testimony regarding the competency of the translators for the translations it submitted, [plaintiff] failed to satisfy the accuracy and reliability requirements of [Fed. R. Evid.] 901”

How later courts described this case

  • finding no abuse of discretion in District Court's exclusion of translated exhibits— rather than untranslated original documents — because "[wjithout providing any affidavits or testimony regarding the competency of the translators for the translations it submitted, [plaintiff] failed to satisfy the accuracy and reliability requirements of [Fed. R. Evid.] 901”

Written by the judges who cited it.

The opinion

FERNANDEZ, Circuit Judge,

dissenting.

First, while it is, no doubt, true that documents must be authenticated and must be reliably translated, there was little opportunity to satisfy the district court’s arbitrary demands in that regard. The district court sprung a wholly fictitious requirement on M&Z in the midst of trial on November 8, 2000, and then granted judgment against M&Z on a motion for directed verdict under Federal Rule of Civil Procedure 52(c) at a 9:25 a.m. hearing the next morning. I do not think that the absence of the documents makes much difference or that their presence would have affected the district court’s decision, but I am convinced that the district court did err in this respect.

Second, I agree that the restraint-of-princes defense is generally available, and would have been available here if not given up by Cargolift. But, the parol evidence, which to my mind was admissible, 1 did tend to show that Cargolift agreed to assume all responsibility for getting the goods through Latvia safely. Despite M&Z’s misgivings, Cargolift insisted that it could safely negotiate the Latvian system.

Then Cargolift commenced attempts to escape from its assurances, but M&Z rejected Cargolift’s bait and switch tactics, or thought it had. Initially, Cargolift tried a provision that M&Z would be responsible for all customs; that was rejected. Then, Cargolift tried a provision that M&Z would be responsible for any delay by “Latvian *146 or Russian” customs, and that Cargolift would not be responsible for “local customs or customs documentation;” that, too, was rejected. Next Cargolift tried a provision that any delay caused by local or transit customs was M&Z’s problem and, again, that Cargolift would not be responsible for “local customs or customs documentation;” that was treated by M&Z with the same disdain it had shown before. Finally, Cargolift apparently capitulated and dropped all reference to Latvia, but declared that it did not have responsibility with respect to Russian customs or customs documentation, and delay by Russian customs was M&Z’s responsibility; that proposal was accepted by M&Z. I have no difficulty in reading that course of conduct to mean precisely what M&Z says it means, but Cargolift did not accomplish what it promised.

As a result, no matter how boldly Cargolift’s case can be painted in theory, the true facts etiolate it, and in the real commercial world a real injustice has occurred.

Thus, I respectfully dissent.

. See, e.g., Trident Ctr. v. Conn. Gen. Life Ins. Co., 847 F.2d 564, 569 (9th Cir.1988); cf. United States Cellular Inv. Co. v. GTE Mobilnet, Inc., 281 F.3d 929 , 938-39 (9th Cir.2002).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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