MacDonald v. Kahikolu, Ltd.

• Citation: 581 F.3d 970
• Decision Date: 10 September 2009
• Docket Number: No. 08-15239.,08-15239.
• Parties: Christopher MacDONALD, Plaintiff-Appellant, v. KAHIKOLU, LTD., doing business as Frogman Charters, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

581 F.3d 970

Christopher MacDONALD, Plaintiff-Appellant, v. KAHIKOLU, LTD., doing business as Frogman Charters, Defendant-Appellee.

No. 08-15239.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 12, 2009.

Filed September 10, 2009.

John R. Hillsman, McGuinn, Hillsman & Palefsky, San Francisco, CA; Howard G. McPherson, Cronin, Fried, Sekiya, Kekina & Fairbanks, Honolulu, HI, for the plaintiff-appellant.

Richard C. Wootton and Mitchell S. Griffin, Cox, Wootton, Griffin, Hansen & Poulos, LLP, San Francisco, CA, for the defendant-appellee.

Appeal from the United States District Court for the District of Hawaii, Leslie E. Kobayashi, Magistrate Judge, Presiding. D.C. No. CV-02-00084-LEK.

Before PROCTER HUG, JR., BETTY B. FLETCHER and MICHAEL DALY HAWKINS, Circuit Judges.

B. FLETCHER, Circuit Judge:

For a second time, plaintiff Christopher MacDonald appeals the district court's judgment after a bench trial in his Jones Act suit against defendant Kahikolu, Ltd. MacDonald worked as a crew member aboard one of Kahikolu's ships and was injured while performing a "free dive," an underwater dive done on a single breath without scuba equipment or other underwater breathing apparatus. In a prior opinion, a separate panel of this court vacated the district court's judgment, and remanded for the district court to consider whether Kahikolu's failure to comply with Coast Guard regulations played any part in causing MacDonald's injuries. See MacDonald v. Kahikolu Ltd., 442 F.3d 1199, 1200 (9th Cir.2006). On remand, the district court held that Kahikolu's failure to comply with the regulations did not cause MacDonald's injuries and again entered judgment for the company. MacDonald appeals, arguing that the district court should have applied the rule from The Pennsylvania, 86 U.S. (1 Wall.) 125, 136, 22 L.Ed. 148 (1873), which puts on the ship owner the burden of proving that its violation of a statute or regulation did not cause the injury.

We have jurisdiction under 28 U.S.C. § 1291. Because we conclude that the Pennsylvania Rule does not apply here, we affirm.

I.

The factual background is set forth in MacDonald, and we reprise it here only insofar as is necessary.

Kahikolu conducts whale watching, scuba, and snorkeling tours off the coast of Maui, Hawaii. MacDonald, 442 F.3d at 1200. MacDonald worked as a deck hand and lifeguard for Kahikolu and, as part of his job, periodically made free dives. Id. On one outing, MacDonald was working aboard Kahikolu's Frogman II and undertook a free dive to retrieve a mooring line from the sea floor, a depth of about 46 feet. Id. However, as he descended to the sea floor, he injured his left ear trying to equalize the pressure in his ears.¹ Id. As a result, MacDonald had to be treated for permanent hearing loss, dizziness, and tinnitus. Id.

MacDonald sued Kahikolu, alleging a violation of the Jones Act, 46 U.S.C. § 30104, for failure to provide a safe work environment, among other claims.² Id. After a bench trial, the district court found that MacDonald was an experienced free diver who regularly had made many dives to depths of 30, 40, and 50 feet without ear pain or injury. Id. at 1201. The court also found that Kahikolu employees had made thousands of free dives without injury and that the activity was not inherently dangerous. Id. Although the court found that Kahikolu had inadequately trained MacDonald regarding free dives, the court ultimately found Kahikolu not negligent because it did not have notice of any unsafe condition. Id.

Before the district court and in his prior appeal, MacDonald argued that Kahikolu was negligent per se, because it had not complied with Coast Guard regulation 46 C.F.R. § 197.420(a)(1), which required the company to provide an operations manual to the person in charge of the dive.³ Id. at 1200. The district court rejected this theory, because it held that the regulations applied only to commercial scuba divers, not to free divers. Id. at 1201.

On appeal, we reversed the district court out of concern that the court erred in failing to consider the applicability of Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958). In Kernan, the Supreme Court held that under the Federal Employers' Liability Act and the Jones Act, an employer is liable for the injury or death of an employee if it is caused "in whole or in part[ ] by the employer's fault," including by breach of a common law or statutory duty. Id. at 432. Kernan thus dispenses with the traditional negligence per se requirement that the statute must be designed to prevent the kind of injury actually at issue. See MacDonald, 442 F.3d at 1203. Pursuant to Kernan, MacDonald would be entitled to recover damages if Kahikolu's violation played any part in causing his injury, no matter how slight. Id.

We remanded with the following instructions:

The record shows that the commercial diving regulations expressly applied only to persons using underwater breathing apparatus and not to free divers. It is not clear, however, whether the district court applied the appropriate causation standard in determining that Kahikolu was not liable for Mr. MacDonald's injuries. Accordingly, we vacate the judgment and remand with instructions that the district court determine whether the failure of Kahikolu to comply with Coast Guard regulations played any part, "`even the slightest,'" in producing Mr. MacDonald's injuries and enter a new judgment in accordance with that finding.

Id. (citation omitted).

On remand, the district court again found in favor of Kahikolu. While the regulations required Kahikolu to have a dive operations manual aboard the Frogman II, the district court found "little, if any, evidence to support Plaintiff's contention that the absence of a dive manual aboard the vessel contributed, even in the slightest, to Plaintiff's injuries." According to the district court, the applicable regulations are "simply void of any discussion relating to free diving," so having an operations manual would not have affected what happened to MacDonald on his free dive. Thus, the district court concluded that Kahikolu's failure to comply with the applicable Coast Guard regulations did not play any part in producing MacDonald's injuries.

In so deciding, the district court declined to apply the Pennsylvania Rule, and alternatively held that even if the Pennsylvania Rule applied, Kahikolu had met its burden under the Rule. MacDonald now challenges those decisions.

II.

We review the district court's conclusions of law, including whether the Pennsylvania Rule applies, de novo. Ambassador Hotel Co. v. Wei-Chuan Investment, 189 F.3d 1017, 1024 (9th Cir.1999). Findings of fact following a bench trial are reviewed for clear error. Id. If the Pennsylvania Rule applies, application of the Rule to the facts is also reviewed for clear error. See Churchill v. F/V Fjord, 892 F.2d 763, 770 (9th Cir.1988); Trinidad Corp. v. S.S. Keiyoh Maru, 845 F.2d 818, 827 (9th Cir.1988).

III.

The Pennsylvania Rule is a longstanding rule of admiralty law, and we have often applied it in this circuit. See, e.g., Exxon Co. v. Sofec, Inc., 54 F.3d 570, 577 (9th Cir.1995); Trinidad Corp., 845 F.2d at 825; see also Mathes v. Clipper Fleet, 774 F.2d 980, 982 (9th Cir.1985) (listing cases). Under the Rule, if a vessel involved in an accident violated a statute or regulation intended to prevent such an incident, it is presumed that the ship owner was at fault, and the burden of proving causation shifts to the ship owner. See The Pennsylvania, 86 U.S. (19 Wall.) at 136. As the Supreme Court explained,

The liability for damages is upon the ship or ships whose fault caused the injury. But when, as in this case, a ship at the time of a collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster. In such a case, the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been.

Id. The Court justified imposing such a heavy burden by stating that the rule "is necessary to enforce obedience to the mandate of the statute."⁴ See id. at 136.

The burden imposed by the Pennsylvania Rule has been described as "`difficult, if not impossible,'" to discharge. Trinidad Corp., 845 F.2d at 825 (quoting Ishizaki Kisen Co. v. United States, 510 F.2d 875, 879 (9th Cir.1975)). Nevertheless, the presumption is rebutted where the defendant shows by clear and convincing evidence that the violation could not reasonably be held to have been a proximate cause of the injury. Id. at 824 (quoting States S.S. Co. v. Permanente S.S. Corp., 231 F.2d 82, 87 (9th Cir.1956)).

It is undisputed that Kahikolu violated 46 C.F.R. § 197.420 by not having an operations manual aboard the ship at the time of MacDonald's accident. MacDonald also argues that Kahikolu failed to designate a "person-in-charge" of the vessel and a "diving supervisor," as required by 46 C.F.R. §§ 197.208(a) and 197.210(a).⁵

Despite these regulatory violations, it is not clear that the Pennsylvania Rule applies to cases that do not involve a collision or other "navigational" accident, or to claims made under the Jones Act. In Mathes, we decided that the Rule did not apply to a personal injury claim brought by a plaintiff whose foot was pinned between two ships. 774 F.2d at 982-83. The crew member on one of the ships did not have a local endorsement aboard the ship, as required by Coast Guard regulations. Id. at 983. We declined to apply the Rule, because there was "no conceivable causal connection between the violation and the injury," and under the Rule, "if it clearly appears the fault could have had nothing to do with the disaster, it may be dismissed from consideration." Id. at 983 (citation omitted). W...