In re Holoholo, Civ. No. 79-0324A

• Court: United States District Courts. 9th Circuit. United States District Court (Hawaii)
• Writing for the Court: SAMUEL P. KING
• Citation: 512 F. Supp. 889
• Parties: In re HOLOHOLO Barbara K. TRENS, individually and as personal representative of Mike Julio Trens, deceased, Plaintiff, v. The UNIVERSITY OF HAWAII, a corporation; the Research Corporation of the University of Hawaii, a corporation; State of Hawaii, a sovereign corporation; the University of California, a corporation; John Laney; and Arthur F. Stubenberg, Defendants. Robert RUSECKAS, personal representative of the estate of James Edward Ruseckas, deceased, Plaintiff, v. The UNIVERSITY OF HAWAII, a corporation; the Research Corporation of the University of Hawaii, a corporation; State of Hawaii, a sovereign corporation; the University of California, a corporation; John Laney; and Arthur D. Stubenberg, as personal representative of the estate of Arthur F. Stubenberg, Defendants. Lynne Ann HAROUN, individually and as executrix of the estate of Stephan Randall Shannon, deceased, and Joann D. Shannon, Plaintiffs, v. The UNIVERSITY OF HAWAII, a corporation; the Research Corporation of the University of Hawaii, a corporation; State of Hawaii, a sovereign state; the University of California, a corporation; Michael Vincent Paulin, as guardian of the property of John Laney, Sr., deceased; and Arthur D. Stubenberg, as personal representative of the estate of Arthur F. Stubenberg, deceased, Defendants. Youngsook Kim HARVEY, individually and as personal representative of the estate of Robert R. Harvey, deceased; Andrew Kim Weaver; Sarah Kim Weaver; and Susan W. Niemeyer, individually and as personal representative of the estate of Gary C. Niemeyer, deceased, Plaintiffs, v. UNIVERSITY OF HAWAII, a corporation; Research Corporation of the University of Hawaii, a corporation; State of Hawaii, a sovereign state; University of California, a corporation; Michael Vincent Paulin, as guardian of the property of John Laney, Sr., deceased, and a legal representative of the estate of John Laney, Sr., deceased; Arthur D. Stubenberg, as personal representative of the estate of Arthur F. Stubenberg, deceased; and Barbara K. Trens, as personal representative of the estate of Mike Julio Trens, deceased, Defendants. Nancy J. LAIRD, individually, as personal representative of Norman P. Laird, deceased, and as guardian ad litem for Kristine Renee Laird, a minor, Plaintiffs, v. The UNIVERSITY OF HAWAII, a corporation; the Research Corporation of the University of Hawaii, a corporation; the University of California, a corporation; Michael Vincent Paulin, as guardian of the property of John Laney, Sr., deceased; Arthur D. Stubenberg, as personal representative of the estate of Arthur F. Stubenberg, deceased, Defendants. Carol A. CHARNELL, individually, as personal representative of Robert Lewis Charnell, deceased, and as guardian ad litem for Mareline Charnell and Erika Charnell, minors, Plaintiffs, v. The UNIVERSITY OF HAWAII, a corporation; the Research Corporation of the University of Hawaii, a corporation; State of Hawaii, a sovereign corporation; the University of California, a corporation; Michael Vincent Paulin, as guardian of the property of John Laney, Sr., deceased; Arthur D. Stubenberg, as personal representative of the estate of Arthur F. Stubenberg, deceased, Defendants.
• Decision Date: 13 April 1981
• Docket Number: 79-0631,79-0583,Civ. No. 79-0324A,80-0053 and 80-0054.,79-0353

512 F. Supp. 889

In re HOLOHOLO

Barbara K. TRENS, individually and as personal representative of Mike Julio Trens, deceased, Plaintiff, v. The UNIVERSITY OF HAWAII, a corporation; the Research Corporation of the University of Hawaii, a corporation; State of Hawaii, a sovereign corporation; the University of California, a corporation; John Laney; and Arthur F. Stubenberg, Defendants.

Robert RUSECKAS, personal representative of the estate of James Edward Ruseckas, deceased, Plaintiff, v. The UNIVERSITY OF HAWAII, a corporation; the Research Corporation of the University of Hawaii, a corporation; State of Hawaii, a sovereign corporation; the University of California, a corporation; John Laney; and Arthur D. Stubenberg, as personal representative of the estate of Arthur F. Stubenberg, Defendants.

Lynne Ann HAROUN, individually and as executrix of the estate of Stephan Randall Shannon, deceased, and Joann D. Shannon, Plaintiffs, v. The UNIVERSITY OF HAWAII, a corporation; the Research Corporation of the University of Hawaii, a corporation; State of Hawaii, a sovereign state; the University of California, a corporation; Michael Vincent Paulin, as guardian of the property of John Laney, Sr., deceased; and Arthur D. Stubenberg, as personal representative of the estate of Arthur F. Stubenberg, deceased, Defendants.

Youngsook Kim HARVEY, individually and as personal representative of the estate of Robert R. Harvey, deceased; Andrew Kim Weaver; Sarah Kim Weaver; and Susan W. Niemeyer, individually and as personal representative of the estate of Gary C. Niemeyer, deceased, Plaintiffs, v. UNIVERSITY OF HAWAII, a corporation; Research Corporation of the University of Hawaii, a corporation; State of Hawaii, a sovereign state; University of California, a corporation; Michael Vincent Paulin, as guardian of the property of John Laney, Sr., deceased, and a legal representative of the estate of John Laney, Sr., deceased; Arthur D. Stubenberg, as personal representative of the estate of Arthur F. Stubenberg, deceased; and Barbara K. Trens, as personal representative of the estate of Mike Julio Trens, deceased, Defendants.

Nancy J. LAIRD, individually, as personal representative of Norman P. Laird, deceased, and as guardian ad litem for Kristine Renee Laird, a minor, Plaintiffs, v. The UNIVERSITY OF HAWAII, a corporation; the Research Corporation of the University of Hawaii, a corporation; the University of California, a corporation; Michael Vincent Paulin, as guardian of the property of John Laney, Sr., deceased; Arthur D. Stubenberg, as personal representative of the estate of Arthur F. Stubenberg, deceased, Defendants.

Carol A. CHARNELL, individually, as personal representative of Robert Lewis Charnell, deceased, and as guardian ad litem for Mareline Charnell and Erika Charnell, minors, Plaintiffs, v. The UNIVERSITY OF HAWAII, a corporation; the Research Corporation of the University of Hawaii, a corporation; State of Hawaii, a sovereign corporation; the University of California, a corporation; Michael Vincent Paulin, as guardian of the property of John Laney, Sr., deceased; Arthur D. Stubenberg, as personal representative of the estate of Arthur F. Stubenberg, deceased, Defendants.

Civ. Nos. 79-0324A, 79-0324, 79-0353, 79-0583, 79-0631, 80-0053 and 80-0054.

United States District Court, D. Hawaii.

April 13, 1981.

Carlton E. Russell, Long Beach, Cal., David C. McClung, Honolulu, Hawaii, for plaintiff in No. 79-0324.

Stuart M. Cowan, Robert E. Rau, Cowan & Frey, Honolulu, Hawaii, for plaintiff in No. 79-0353.

John S. Edmunds, Charles W. Crumpton, Edmunds & Hall, Honolulu, Hawaii, for plaintiffs in Nos. 79-0583, 80-0053 and 80-0054.

David C. Schutter, Reinhard Mohr, Honolulu, Hawaii, for plaintiffs in No. 79-0631.

Douglas Hartwich, Short & Cressman, Seattle, Wash., for plaintiffs in Nos. 80-0053 and 80-0054.

Charles E. Yates, Moriarty, Mikkelborg, Broz, Wells & Fryer, Seattle, Wash., for plaintiffs in No. 80-0053.

Wayne Minami, Atty. Gen., Nelson S. W. Chang, Deputy Atty. Gen., Honolulu, Hawaii, for defendants the State of Hawaii and the University of Hawaii.

Everett Cuskaden, Oliver, Cuskaden & Lee, Honolulu, Hawaii, for defendant the Research Corp. of the University of Hawaii.

Richard K. Quinn, Stephen A. Nordyke, Michael M. Payne, Honolulu, Hawaii, for defendant The Regents of the University of California.

John A. Roney, Stubenberg, Roney, Hartnett, Lawhn, Fong & Kuwasaki, Honolulu, Hawaii, for defendant Stubenberg.

DECISION AND ORDER DENYING MOTIONS TO DISMISS

SAMUEL P. KING, Chief Judge.

I. Facts

On December 9, 1978, the M/V HOLOHOLO, a 90-foot Alaskan power scow converted to a yacht and then to a research vessel, sailed from Honolulu, Hawaii, on the second of six planned voyages to an ocean thermal energy conversion ("OTEC") station located 17 nautical miles west of Kawaihae on the Island of Hawaii. The vessel had been chartered by the Research Corporation of the University of Hawaii ("RCUH") pursuant to a subcontract with the University of Hawaii ("UH"), which was in turn operating under a subcontract with defendant The Regents of the University of California ("UC"), which was operating pursuant to a master contract with the United States Department of Energy ("DOE").¹ Aboard were the owner, a licensed master of research vessels, a mechanic, and seven marine scientists for a total of ten persons.

The HOLOHOLO did not arrive at Kawaihae on schedule on December 11. A ten-day search for the vessel began on December 12 following notification to the United States Coast Guard on that day. During that search, no trace of the vessel or those aboard was found.²

Plaintiffs brought these wrongful death actions on behalf of themselves and the estates of the presumably deceased persons on the vessel. The actions allege negligent, willful, intentional, or reckless acts or omissions by defendants, their agents, or employees in the design, construction, supervision, control, management, maintenance, alteration, outfitting, entrustment, and operation of the HOLOHOLO. Specifically, plaintiffs allege, among other things, that defendants: (1) intentionally disregarded and violated laws, safety regulations, and established procedures intended to safeguard lives and property at sea; (2) used the HOLOHOLO for ocean operations it was unsafe to perform by reason of its design, hull strength, water tight integrity, and configuration; (3) altered the HOLOHOLO to render it more unsafe and unseaworthy; (4) failed to maintain adequate communications; (5) failed to furnish the vessel with an adequate crew; (6) failed to equip the vessel with adequate lifesaving equipment; and (7) failed promptly to notify the United States Coast Guard so that effective search and rescue could be made. All of these acts or omissions, plaintiffs allege, resulted in requiring their decedents to perform their duties in an unsafe place to work.

II. Causes of Action and Jurisdiction

Plaintiffs allege that the sinking and presumed deaths occurred either on the navigable waters of the United States, possibly within the waters of the State of Hawaii, or on the high seas of the North Pacific Ocean. The various actions, now consolidated, were brought under the admiralty and maritime jurisdiction of this Court pursuant to the Jones Act, 46 U.S.C. § 688 (1975), the Death on the High Seas Act ("DOHSA"), 46 U.S.C. §§ 761-767 (1975), and the General Maritime Law. Jurisdiction lies under 46 U.S.C. § 761 and/or 46 U.S.C. § 688 and the general admiralty and maritime jurisdiction.

The Jones Act provides:

Recovery for injury to or death of seaman

Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.

46 U.S.C. § 688.

The DOHSA provides:

Right of action; where and by whom brought

Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued.

46 U.S.C. § 761.

Plaintiffs seek damages amounting to several millions of dollars under one or both of the statutes or under the general maritime cause of action.

The availability of damages under the Jones Act depends upon whether each of the deceased was a seaman. Since that issue will be determined by the factfinder at the trial, it is treated here in favor of the coverage of the deceased as non-moving parties on motions to dismiss. As to the DOHSA, all indications at this point are that the sinking and deaths occurred on the high seas, i. e., more than one marine league from shore.³ The deceased are "persons" covered by the DOHSA.

III. The Eleventh Amendment

The consolidated actions are before this Court on motions to dismiss made by defendants the State of Hawaii, the UH, the RCUH and the UC on the ground that the actions are...