Nelsen v. Research Corp. of the University of Hawaii

• Decision Date: 15 January 1991
• Docket Number: Civ. No. 89-00738 DAE.
• Citation: 752 F. Supp. 350
• Parties: Robert G. NELSEN, Plaintiff, v. RESEARCH CORPORATION OF the UNIVERSITY OF HAWAII, Defendant.
• Court: U.S. District Court — District of Hawaii

752 F. Supp. 350

Robert G. NELSEN, Plaintiff, v. RESEARCH CORPORATION OF the UNIVERSITY OF HAWAII, Defendant.

Civ. No. 89-00738 DAE.

United States District Court, D. Hawaii.

November 26, 1990.

As Amended January 15, 1991.

COPYRIGHT MATERIAL OMITTED

Douglas M. Fryer, Mikkelborg Broz Wells & Fryer, Seattle, Wash., James R. Moore, Reinwald O'Connor Marrack Hoskins & Playdon, Honolulu, Hawaii, for plaintiff.

C. Andrew Waters, Keesal Young & Logan, Long Beach, Cal., David A. Nakashima, Rush Moore Craven Sutton Morry & Beh, Honolulu, Hawaii, for defendant.

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

DAVID A. EZRA, District Judge.

Defendant's summary judgment motion came on for hearing before this court on October 1, 1990. Michael J. McGuigan, Esq. appeared for plaintiffs Robert G. Nelsen and Patricia Nelsen ("plaintiff"¹). C. Andrew Waters, Esq. appeared on behalf of defendant Research Corporation of the University of Hawaii ("defendant" or "RCUH"). The court having reviewed the motion and the memoranda, exhibits, and affidavits in support thereof and in opposition thereto, having heard oral arguments of counsel, and being fully advised as to the premises herein, DENIES defendant's motion for summary judgment under Fed. R.Civ.P. 56.

BACKGROUND

In this admiralty case, plaintiff Robert Nelsen seeks recovery under the Jones Act, 46 U.S.C.App. §§ 688, and maritime common law for emotional and psychological injuries allegedly sustained while he served as captain of an oceanographic research vessel, the Kila, from July 1984 to May 1987. Plaintiff Patricia Nelsen asserts a loss of consortium claim.

Plaintiff alleges defendant maintained the Kila negligently and ignored plaintiff's concerns about the vessel's safety. As a result, plaintiff maintains he suffered nightmares, anxiety attacks, and other psychological injuries. In particular, he asserts 1) that on September 27, 1986, the Kila's engine overheated and threatened to detonate explosives stored on board; 2) that on January 27, 1987, the Kila took on water and nearly sank; and 3) that from October 1986 to May 1987, problems with the vessel's controls rendered diving operations unsafe. Plaintiff contends these incidents, which occurred while he piloted the Kila in waters surrounding the Hawaiian Islands, gave rise to his emotional and psychological injuries.

Defendant now moves for summary judgment, arguing this court lacks subject matter jurisdiction because the Suits in Admiralty Act, 46 U.S.C.App. §§ 741-752 ("SIAA"), provides that plaintiff's exclusive remedy is against the United States, the Kila's owner.

DISCUSSION

A. Summary Judgment Standard

Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Retail Clerks Union, Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030 (9th Cir.1983). In ruling on defendant's motion, this court views the facts and inferences in the light most favorable to plaintiff. Id.

The moving party has the initial burden of "identifying for the court those portions of the materials on file in the case that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). If the moving party meets its burden, then the opposing party may not defeat a motion for summary judgment in the absence of any significant probative evidence tending to support his legal theory. Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 282 (9th Cir.1979).

B. The Suits in Admiralty Act

Section 745 of the SIAA contains an exclusivity clause. It states:

... where a remedy is provided by this chapter it shall hereafter be exclusive of any other action by reason of the same subject matter against the agent or employee of the United States or of any incorporated or unincorporated agency thereof whose act or omission gave rise to the claim.

(Emphasis added). The SIAA does not itself provide a cause of action; it operates merely as a waiver of the United States' sovereign immunity in admiralty suits. Nelson v. United States, 639 F.2d 469, 473 (9th Cir.1980). A congressional waiver of sovereign immunity is a prerequisite to any suit brought against the United States under admiralty law or otherwise. Roberts v. United States, 498 F.2d 520, 525 (9th Cir.), cert. denied, 419 U.S. 1070, 95 S.Ct. 656, 42 L.Ed.2d 665 (1974). The actual source of an admiralty claim against the United States is either maritime common law or statute. Williams v. United States, 711 F.2d 893, 895 (9th Cir.1983).

Here, that statute is the Public Vessels Act, 46 U.S.C.App. §§ 781-790 ("PVA"), which courts construe together with the SIAA. See Aliotti v. United States, 221 F.2d 598 (9th Cir.1955); see also Guidry v. Durkin, 834 F.2d 1465, 1472 (9th Cir.1987) (SIAA and PVA are "interrelated"). Thus, to determine whether "a remedy is provided" within the meaning of SIAA section 745, this court looks to the PVA.

1. Whether the Kila is a Public Vessel

Section 781 of the Public Vessels Act provides that suits in admiralty may be brought against the United States "for damages caused by a public vessel of the United States" (emphasis added). RCUH may not invoke the exclusivity clause of SIAA section 745 unless the Kila is a public vessel within the meaning of PVA section 781. See Santos v. RCA Serv. Co., 603 F.Supp. 943, 946 (E.D.La.1985).

A vessel owned by the government and used for a public purpose by a private party according to the government's direction is a "public vessel" under section 781. Petition of United States, 367 F.2d 505, 509 (3rd Cir.1966) (citations omitted), cert. denied, 386 U.S. 932, 87 S.Ct. 953, 17 L.Ed.2d 805 (1967); Santos, 603 F.Supp. at 946 (suggesting government ownership alone is sufficient to invoke the exclusivity provision of section 745).

In the instant case, the parties do not dispute the Kila is owned by the United States. See Defendant's Memorandum of Points & Authorities at 8 and Affidavit of Judy Rubano, attached as Exhibit "G"; Plaintiff's Memorandum in Opposition at 12. The charter agreement between the United States Office of Naval Research and the University of Hawaii, see Exhibit "A" to Defendant's Memorandum, is replete with language demonstrating clearly that defendants acquired no ownership interest in the Kila.²

In addition, the agreement contemplated defendant would operate the Kila for a public purpose. For instance, the preamble provides that "the Secretary of the Navy ... has determined that it is in the best interests of the Government to lease ... the Kila for use by the Charterer in the performance of ... oceanographic research work." See Exhibit "A" (italics added). The next paragraph states, "the Secretary has determined that it will be in the public interest to let the Vessel to the Charterer...." Id. (italics added). Further, by the terms of the agreement, the defendant's use of the vessel is restricted to

the performance of oceanographic research for the Government and time permitting for other oceanographic research work which may be financed by State or other public agencies, but only to the extent that such other work does not exceed 25% of the total use of the Vessel during any fiscal year; provided that the Contracting Officer may authorize use in excess of such 25% on such terms and conditions as he may prescribe. The Charterer may, in addition, use the Vessel for one or more training voyages, the cumulative total of which shall not exceed 60 days in any fiscal year, for the training of students....

Article 3(a), Exhibit "A".

Based on the charter agreement and the undisputed fact that the United States owned the Kila, there is no genuine issue of material fact as to whether the Kila was a public vessel so as to provide plaintiff a cause of action under PVA section 781.

2. Whether a Cause of Action Could be Maintained if the Kila were Privately Owned

Even if the Kila is a public vessel, SIAA section 742 precludes application of the exclusivity clause unless plaintiff's suit is also one that could be maintained if the Kila were privately owned. 46 U.S.C.App. § 742; see also United States v. United Continental Tuna Corp., 425 U.S. 164, 96 S.Ct. 1319, 47 L.Ed.2d 653 (1976) (discussing thoroughly the legislative history of both the SIAA and the PVA); Williams v. Central Gulf Lines, 874 F.2d 1058, 1063 (5th Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 843, 107 L.Ed.2d 837 (1990); Roberts, 498 F.2d at 525.

Because the inquiry under section 742 is strictly jurisdictional, i.e., is plaintiff's claim cognizable under the general admiralty jurisdiction of 28 U.S.C. § 1331, that inquiry is in no way directed toward the merits, i.e., would the plaintiff actually recover on the present facts if he were suing a private vessel owner. See Roberts, 498 F.2d at 525; Trautman v. Buck Steber, Inc., 693 F.2d 440, 445 (5th Cir.1982) (applying the test for admiralty jurisdiction announced in Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972)).

A claim for personal injuries is within the district courts' admiralty jurisdiction if the actions complained of occurred on or over navigable waters and the alleged wrong bears a significant relationship to traditional maritime activity. Executive Jet, 409 U.S. at 268, 93 S.Ct. at 504;³ Guidry, 834 F.2d at 1469. Neither party addresses, and it appears beyond dispute, that plaintiff's injuries here occurred on navigable waters. See Williams, 711 F.2d at 896 (waters of the Pacific Ocean are navigable waters).

Applying Executive Jet in a case quite similar to the one at bar, this court held specifically that the families of oceanographic research workers, who presumably drowned when their research vessel disappeared in the waters surrounding the Hawaiian...