Habel v. Grove Farm Fish & Poi, LLC, Civil No. 10–00576 LEK–BMK.

• Court: United States District Courts. 9th Circuit. United States District Court (Hawaii)
• Citation: 855 F.Supp.2d 1112
• Decision Date: 27 February 2012
• Docket Number: Civil No. 10–00576 LEK–BMK.
• Parties: Daniel L. HABEL, Plaintiff, v. GROVE FARM FISH & POI, LLC, dba Hukilau Foods, in personam; M/V Wailoa HA533CC, and the Feed Barge HA737CC, their Engines, Tackle, Apparel, Furniture and Appurtenances, etc., in rem, Defendants.

855 F.Supp.2d 1112

Daniel L. HABEL, Plaintiff,
v.
GROVE FARM FISH & POI, LLC, dba Hukilau Foods, in personam; M/V Wailoa HA533CC, and the Feed Barge HA737CC, their Engines, Tackle, Apparel, Furniture and Appurtenances, etc., in rem, Defendants.

Civil No. 10–00576 LEK–BMK.

United States District Court,
D. Hawai‘i.

Feb. 27, 2012.

[855 F.Supp.2d 1113]

David L. Fairbanks, Howard G. McPherson, Cronin Fried Sekiya Kekina & Fairbanks, Honolulu, HI, for Plaintiff.

James A. Wagner, Wagner Choi & Verbrugge, Mark S. Hamilton, Michael J. Nakano, Robert G. Frame, Frame & Nakano, Honolulu, HI, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
LESLIE E. KOBAYASHI, District Judge.

Before the Court is Plaintiff Daniel Habel's (“Plaintiff”) Motion for Partial Summary Judgment (“Motion”), filed November 1, 2011. Defendants Grove Farm Fish & Poi, LLC, doing business as Hukilau Foods (“Grove Farm”), M/V Wailoa HA 533CC, and Same Smell HA 0737CC (collectively “Defendants”) filed their memorandum in opposition on January 23, 2012, and Plaintiff filed his reply on January 30, 2012. This matter came on for hearing on February 13, 2012. Appearing on behalf of Plaintiff were Howard McPherson, Esq., and David Fairbanks, Esq., and appearing on behalf of Defendants were Mark Hamilton, Esq., and Michael Nakano, Esq. After careful consideration of the Motion, supporting and opposing memoranda, and the arguments of counsel, Plaintiff's Motion is HEREBY GRANTED IN PART AND DENIED IN PART for the reasons set forth below. The Motion is GRANTED as to Plaintiff's Jones Act seaman status and the applicability of United States Coast Guard commercial diving operations regulations, and DENIED in all other respects.

[855 F.Supp.2d 1114]

BACKGROUND

Plaintiff was employed as a diver and offshore crewman by Grove Farm from April 2009 to February 2010. Grove Farm raises moi fish in open-ocean cages off of Ewa Beach, Oahu, and owns and operates in rem defendants M/V Wailoa HA 533CC (“Wailoa”), and the Feed Barge Same Smell HA 0737CC (“Feed Barge”). Plaintiff alleges that, during the course of his employment, Grove Farm failed to provide a safe place in which to work, including a lack of commercial diving safeguards and procedures required by law. Plaintiff's Complaint alleges: (1) Jones Act negligence pursuant to 46 U.S.C. § 30104 (Count I); (2) unseaworthiness (Count II); and (3) maintenance, cure, and found (Count III). [Complaint at ¶¶ 2–18.]

I. Plaintiff's Motion

Plaintiff seeks partial summary judgment on the grounds that: (1) Grove Farm is liable under the Jones Act based on violations of United States Coast Guard (“Coast Guard”) diving regulations; and (2) comparative fault is not an available defense to that liability.

According to Plaintiff, he suffered diving decompression sickness (“DCS” or “the bends”) in the course of his employment with Grove Farm. With respect to his duties, he states that he contributed to the mission of both vessels, helping with mooring lines, piloting, and maintaining engines and equipment during his employment. He also performed commercial diving tasks staged from Wailoa, which transported divers to Grove Farm's offshore site. [Pltf.'s Concise Statement of Facts (“CSF”), Declaration of Daniel L. Habel (“Habel Decl.”), at ¶¶ 2–10, 14–19.] Plaintiff spent 95% to 98% of his time on the vessels or diving from them. [Pltf.'s CSF, Second Declaration of Daniel L. Habel (“Second Habel Decl.”), at ¶¶ 3–5.]

Plaintiff states that Grove Farm: permitted scuba diving outside the no-decompression limits on a daily basis and scuba diving below 130 feet at least two or three times per week; did not have a decompression chamber, decompression or treatment tables, or breathing gas for treatment of decompression sickness on site; and did not have work rules ensuring proper detection or reporting of DCS. [Habel Decl. at ¶¶ 9–13.] According to Plaintiff's expert, Dr. Robert Sanders, Grove Farm's workplace practices were contributing causes of Plaintiff's DCS. [Pltf.'s CSF, Declaration of Robert S. Sanders (“Sanders Decl.”), at ¶ 5.]

Plaintiff states that he first suffered what he believed to be DCS symptoms in October or November of 2009 after a specific dive deeper than 130 feet at the offshore cages, and felt a sharp and intense pain in his right arm, which he reported to his co-workers and supervisor. He asserts that he was told that the company was short-staffed, which he understood to mean that he needed to keep working. He says he was never told that he should seek decompression sickness treatment. In January 2010, after surfacing from a dive from the Wailoa, he experienced more severe DCS, including numbness and weakness in his right hand and arm, which he reported to his supervisor, Harry Lynch. Mr. Lynch told him that he needed to finish work for the day and could seek recompression treatment the following day; because he wanted to keep his job, Plaintiff complied with his instruction and stayed at work. The next day, he was treated by Dr. Saunders at the Hyberbaric Treatment Center in Honolulu. He states that he initially got relief from his symptoms, but they returned within twelve hours after treatment and have not abated since. He was disqualified from diving in January 2010. [Habel Decl. at ¶¶ 11, 14–20.]

[855 F.Supp.2d 1115]

A. Seaman Status

Plaintiff first argues that he satisfies the test for Jones Act seaman status as a matter of law because he: (1) contributed to the mission of the two vessels in navigation, Wailoa and Feed Barge; and (2) had a substantial connection to the vessels in navigation, spending nearly all of his work time in the service of Wailoa and Feed Barge for nine months. [Mem. in Supp. of Motion at 4–6.]

B. Statutory Violations Constitute Negligence Per Se

Plaintiff next argues that Coast Guard commercial diving operations regulations create mandatory legal duties under the Federal Employer's Liability Act (“FELA”), 45 U.S.C. §§ 51–60, which is applicable in Jones Act cases. [ Id. at 2 (citing Kernan v. Am. Dredging Co., 355 U.S. 426, 439, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958)).] Plaintiff maintains that FELA § 51 provides the basis for employer liability here, and that liability is established when an employer's violation of a statutory duty is a contributing cause of injury. [ Id. at 7 (citing Kernan, 355 U.S. at 437–39, 78 S.Ct. 394 (1958)); MacDonald v. Kahikolu, 442 F.3d 1199, 1203 (9th Cir.2006).]

Plaintiff states that Coast Guard regulations relating to commercial diving operations applied to his diving work staged from Wailoa because Wailoa is required to have a certificate of inspection issued by the Coast Guard as a “towing vessel” subject to inspection. [ Id. at 8 (citing 46 U.S.C. §§ 2101(40), 3301(15), and 3311(a); 46 C.F.R. § 197.202).] He alleges the following regulatory violations:

• 46 C.F.R. § 197.430, which provides in relevant part:

The diving supervisor shall insure that—

(a) SCUBA diving is not conducted—

(1) Outside the no-decompression limits;

(2) At depths greater than 130 fsw[.]

Working from Wailoa, Plaintiff claims he regularly made scuba dives outside the no-decompression limits and deeper than 130 feet salt water (“fsw”), and that Grove farm's instructing him, or even allowing him to, violated this Coast Guard regulation. [ Id. at 9.]

• 46 C.F.R. § 197.314(c), which provides in relevant part:

(c) Each dive location supporting mixed-gas dives, dives deeper than 130 fsw, or dives outside the no-decompression limits must ... have—

(1) A decompression chamber;

(2) Decompression and treatment tables;

(3) A supply of breathing gases sufficient to treat for decompression sickness[.]

During Plaintiff's employment at Grove Farm's offshore site, he asserts that there was no decompression chamber, no decompression or treatment tables, and no supply of breathing gas sufficient to treat decompression sickness. [ Id.]

• 46 C.F.R. § 197.410, which provides in relevant part:

(a) The diving supervisor shall insure that—

....

(7) After the completion of each dive—

(i) The physical condition of the diver is checked by—

(A) Visual observation; and

(B) Questioning the diver about his physical well-being;

(ii) The diver is instructed to report any physical problems or adverse physiological effects including aches, pains, current illnesses, or symptoms of decompression sickness or gas embolism;

....

[855 F.Supp.2d 1116]

(8) For any dive outside the no-decompression limits, deeper than 130 fsw, or using mixed-gas

as a breathing mixture—

....

(iii) A dive team member, other than the diver, is trained and available to operate the decompression chamber[.]

Plaintiff asserts that Grove Farm did not meet these requirements, and the only remaining issue is whether these violations contributed to his injury. [ Id. at 10.] He argues that, under the minimal Jones Act standard for legal causation, he need only show that the employer's negligence was a contributing cause. Based on the opinion of his treating physician, Dr. Sanders, that Grove Farm's alleged statutory violations played a part in causing his injury, Plaintiff argues that he has satisfied this standard. [ Id. at 11 (citing Sanders Decl. at ¶ 5).]

C. Statutory Violations Bar Comparative Fault Defense

Next, Plaintiff argues that the defense of comparative fault is barred under FELA § 53, which provides that: “No ... employee who shall be injured ... shall be held to have been guilty of contributory negligence in any case where the violation ... of any statute enacted for the safety of employees contributed to the injury....” [ Id. at 12.] He states that he meets the five-element test set forth in Fuszek v. Royal King Fisheries, Inc., 98 F.3d 514, 516 (9th Cir.1996), for application of this section because: (1) Grove Farm violated Coast Guard regulations; (2) Plaintiff, as a commercial diver, was an intended beneficiary; (3) the Coast Guard regulations were designed to prevent the diving injury...