Mount v. Keahole Point Fish, LLC

• Decision Date: 23 November 2015
• Docket Number: Civ. No. 14-00100 ACK-RLP
• Citation: 147 F.Supp.3d 1116
• Parties: Richard Mount and Ellen Frosch, Plaintiffs, v. Keahole Point Fish, LLC ; Blue Ocean Mariculture, LLC; Fish Facts, Inc., in personum; M/V Kona Kampachi I; and M/V/ Kona Kampachi II, their Engines, Tackle, Apparel, Furniture and Appurtenances, etc., in rem, Defendants.
• Court: U.S. District Court — District of Hawaii

147 F.Supp.3d 1116

Richard Mount and Ellen Frosch, Plaintiffs,

v.Keahole Point Fish, LLC ; Blue Ocean Mariculture, LLC; Fish Facts, Inc., in personum; M/V Kona Kampachi I; and M/V/ Kona Kampachi II, their Engines, Tackle, Apparel, Furniture and Appurtenances, etc., in rem, Defendants.

Civ. No. 14-00100 ACK-RLP

United States District Court, D. Hawai'i.

Signed November 23, 2015

David L. Fairbanks, Howard G. McPherson, Cronin Fried Sekiya Kekina & Fairbanks, Honolulu, HI, John T. O'Connell, Lee Myers and O'Connell LLP, Aurora, CO, for Plaintiffs.

Ralph J. O'Neill, Jamie Christine S. Madriaga, MacDonald Rudy Byrns O'Neill & Yamauchi, Honolulu, HI, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Alan C. Kay, Sr. United States District Judge

For the following reasons, the Court hereby GRANTS Defendants' Motion for Summary Judgment. (Doc. No. 50.) Because the Court concludes that the United States Coast Guard Commercial Diving Operations regulations do not apply to Defendants' Kampachi Vessels, the Court grants judgment in Defendants' favor as to Plaintiffs' claims for negligence per se and unseaworthiness per se. All other claims in the Second Amended Complaint remain.

FACTUAL BACKGROUND¹

This is an admiralty case arising out of injuries Plaintiff Richard Mount suffered while working as a crew member and lead diver for Defendant Keahole Point Fish, LLC (“Keahole Fish”). (Def. CSF, Madsen Decl. ¶ 19; SAC ¶ 8.)

Defendant Blue Ocean Mariculture, LLC (“Blue Ocean”) is an aquaculture company that raises Hawaiian Kampachi fish in submersed net structures approximately one mile off the coast of Kona, Hawaii. (Madsen Decl. ¶ 4.) In support of its business, Blue Ocean operates the following vessels: the Kona Kampachi I (“Kampachi I”), Official Number 1183797, and the Kona Kampachi II (“Kampachi II”), Official Number 1198834 (together, “Kampachi Vessels”). (Id. ¶ 3.)

Defendant Keahole Fish employs divers and other employees to support Blue Ocean's operations. (Id. ¶ 5.) Plaintiff began working for Keahole Fish in January of 2010.² (Id. ¶ 19.) Plaintiff Mount asserts that he suffered an ear injury on November 15, 2011, while working aboard the Kampachi I and taking part in a diving operation staged from that vessel. (SAC ¶ 14.) Specifically, a scuba regulator hose burst near his left ear during the dive, causing his alleged injury. (Id. ; Def. CSF, Madsen Decl. ¶ 20; Def. CSF, Ex. H (“Report of Work-Related Injury”).)

Plaintiff also claims that on September 6, 2012, he suffered an inguinal hernia

while working underwater from the Kampachi II, pushing a net “sweep wall” used by the divers to confine fish to prepare them to be harvested. (SAC ¶¶ 16-23.) Plaintiff asserts that he and a group of other divers were pushing the sweep wall net, but at some point all of the other divers had surfaced without Plaintiff's knowledge. (Id. ¶¶ 18-21.) Plaintiff continued pushing against the sweep wall net and felt a sharp pain in his groin. (Id. ¶ 22.) Plaintiff continued working until he reported the incident on January 7, 2013. (Madsen Decl. ¶ 21; Def. CSF, Ex. I (“Report of Work-Related Injury”).) Plaintiff was diagnosed with an inguinal hernia for which he underwent surgery at Kaiser Permanente in Kona on January 31, 2013. He continued to experience pain thereafter and, on January 29, 2015, underwent a second surgery at the UCLA Lichetenstein Amid Hernia Clinic. (Mot. at 4.) Plaintiff asserts that he continues to suffer the negative impacts of the injuries he suffered while working for Defendants. (SAC ¶¶ 51-52.)

PROCEDURAL BACKGROUND

On February 28, 2014, Plaintiffs Richard Mount and his wife Ellen Frosch (together, “Plaintiffs”) filed their original Complaint against Blue Ocean, in personum , and the M/V KONA KAMPACHI I and M/V KONA KAMPACHI II, in rem. (Doc. No. 1.) Plaintiffs subsequently filed a First Amended Complaint on May 2, 2014, adding as defendants Keahole Fish, and Fish Facts, Inc. (all defendants collectively referred to as “Defendants”). (Doc. No. 15.) In the First Amended Complaint, Plaintiffs brought the following claims: (1) Jones Act Negligence as against all in personum defendants; (2) Unseaworthiness as against Defendants Blue Ocean, Fish Facts, and the Vessels; (3) Maintenance and Cure as against Defendants Keahole Fish Point and the Vessels; and (4) Loss of Consortium as against Defendants Blue Ocean, Fish Facts, and the Vessels. On August 5, 2014, the parties stipulated to the dismissal of Count III, Plaintiffs' maintenance and cure claim. (Doc. No. 29.)

On February 6, 2015, the parties stipulated to stay the instant case for approximately three months to allow Plaintiff Mount time to recover from a surgery he underwent on January 29, 2015.³ (Doc. No. 38.) The stay was lifted on June 26, 2015, and Defendants filed the instant Motion for Summary Judgment, along with a concise statement of facts and numerous supporting exhibits, on July 22, 2015. (Doc. Nos. 50 & 51.)

While the instant Motion was pending, Plaintiffs were granted leave to file a Second Amended Complaint, re-alleging a claim for Maintenance and Cure. (Doc. No. 78.) Plaintiffs therefore filed their Second Amended Complaint on September 22, 2015, alleging the same four counts as alleged in the First Amended Complaint (including the Maintenance and Cure claim that had previously been dismissed via the parties' stipulation). (Doc. No. 80.)

Plaintiffs filed their memorandum in opposition to the instant Motion, along with a concise statement of facts and several exhibits, on October 9, 2015.⁴ (Doc. Nos. 88 & 89.) Defendants filed their reply on October 19, 2015. (Doc. No. 93.)

A hearing on the Motion⁵ was held on November 2, 2015.⁶

STANDARD

Summary judgment is appropriate when a “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a)

. The central issue is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)

. If that burden has been met, the nonmoving party must then come forward and establish the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The Court must draw all reasonable inferences in favor of the nonmoving party. Id. at 587, 106 S.Ct. 1348.

In supporting a factual position, a party must “cit[e] to particular parts of materials in the record ... or show[ ] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)

. The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita , 475 U.S. at 585, 106 S.Ct. 1348. “[T]he requirement is that there be no genuine issue of material fact .... Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson , 477 U.S. at 247–48, 106 S.Ct. 2505 (emphasis in original). Also, “[t]he mere existence of a scintilla of evidence in support of the non-moving party's position is not sufficient[ ]” to defeat summary judgment. Triton Energy Corp. v. Square D Co. , 68 F.3d 1216, 1221 (9th Cir.1995). Likewise, the nonmoving party “cannot defeat summary judgment with allegations in the complaint, or with unsupported conjecture or conclusory statements.” Hernandez v. Spacelabs Med. Inc. , 343 F.3d 1107, 1112 (9th Cir.2003).

DISCUSSION

In the instant Motion, Defendants seek summary judgment as to the applicability of the United States Coast Guard (“USCG”) diving regulations and, thus, the viability of Plaintiffs' claims for negligence per se and unseaworthiness per se based upon alleged violations of those regulations, as set forth in Kernan v. American Dredging Co. , 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958)

.⁷

In Kernan

, the United States Supreme Court held that the strict liability principles set forth in the Federal Employer's Liability Act (“FELA”), 45 U.S.C. §§ 51 -60, apply in Jones Act cases,⁸ and, as such, a violation of a statute or Coast Guard regulation that causes the injury or death of any employee creates liability “in the absence of any showing of negligence.” 355 U.S. 426, 431, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958). Thus, under the Jones Act, “the common-law concepts of foreseeability and risk of harm are not applicable where the employer violates a federal statute or a Coast Guard regulation, if such conduct in whole or in part caused injury.” MacDonald v. Kahikolu Ltd. , 442 F.3d 1199, 1203 (9th Cir.2006).

Here, Plaintiffs assert that Defendants were subject to and violated the Coast Guard's Commercial Diving Operations regulations (codified at 46 C.F.R. § 197.200 et seq.

) and are therefore subject to per se liability for Plaintiffs' alleged harm. Defendants counter that the Kampachi Vessels are uninspected fishing vessels not subject to the Coast Guard regulations and, thus, they cannot be held per se liable based upon those regulations. The Court therefore turns to an examination of the applicability of the Coast Guard regulations to the Kampachi Vessels.

The Coast Guard Commercial Diving Operations regulations apply on their face to any “commercial diving operations taking place” from, inter alia , “vessels required to have a certificate of inspection issued by the Coast Guard.” 46 C.F.R. § 197.202

. Defendants assert that the Kampachi Vessels are fishing vessels and fish tender vessels below a...