Tancredi v. Dive Makai Charters, Civ. No. 89-00873 BMK.

• Decision Date: 28 May 1993
• Docket Number: Civ. No. 89-00873 BMK.
• Citation: 823 F. Supp. 778
• Parties: Catherine D. TANCREDI, and Louis D. Tancredi, Sr., Individually and as Co-Administrators for the Estate of Louis D. Tancredi, Jr., Deceased, Plaintiffs, v. DIVE MAKAI CHARTERS, Tom Shockley, Lisa Choquette, Gary Simons and Rich Westphal, Defendants.
• Court: U.S. District Court — District of Hawaii

823 F. Supp. 778

Catherine D. TANCREDI, and Louis D. Tancredi, Sr., Individually and as Co-Administrators for the Estate of Louis D. Tancredi, Jr., Deceased, Plaintiffs, v. DIVE MAKAI CHARTERS, Tom Shockley, Lisa Choquette, Gary Simons and Rich Westphal, Defendants.

Civ. No. 89-00873 BMK.

United States District Court, D. Hawaii.

May 28, 1993.

COPYRIGHT MATERIAL OMITTED

Michael D. Wilson, Judith Ann Pavey, Cindy S. Inouye, Honolulu, HI, for plaintiff.

John O'Kane, Jr., Alcantara & Frame, Honolulu, HI, for defendant Simons.

Richard A. Lesser, Mark A. Hruska, Michele Nelson, Hruska & Lesser, Honolulu, HI, for defendants Shockley, Choquette, and Westphal.

FINDINGS OF FACT AND CONCLUSIONS OF LAW; ORDER DENYING DEFENDANTS' MOTION TO AMEND THE ORAL ORDER OF THE COURT AWARDING DAMAGES FOR LOSS OF SOCIETY; ORDER DENYING DEFENDANTS' MOTION TO FURTHER AMEND THE ORAL ORDER OF THE COURT AWARDING DAMAGES FOR FUTURE LOST WAGES; ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR PRE-JUDGMENT INTEREST

KURREN, United States Magistrate Judge.

This case arises out of the death of Louis D. Tancredi, Jr. ("Tancredi") that occurred during a scuba diving expedition off the Island of Hawaii on June 30, 1988. Tancredi's parents, Catherine D. Tancredi and Louis D. Tancredi, Sr., brought this wrongful death and survivor's action against Dive Makai Charters, the dive charter company responsible for planning and conducting the guided scuba dive in question; Tom Shockley and Lisa Choquette, Dive Makai's owners; and Gary Simons and Rich Westphal, Dive Makai's vessel captain and dive master, respectively.

This case came on for trial without a jury. Having considered the evidence presented at trial and the arguments of counsel, the court finds as follows:

I. FACTS

In June 1988, Tancredi, a 35 year-old resident of Plymouth Meeting, Pennsylvania, traveled to Hawaii for a vacation and to participate in scuba diving activity. In 1981, he had obtained the basic open-water certification supplied to divers by the recreational dive industry. Tancredi also had some experience diving in waters off the Island of Hawaii prior to his trip in 1988.

On June 29, 1988, Tancredi booked charter space with defendant Dive Makai Charters ("Dive Makai") for the following day, when another dive company was unable to accommodate him and recommended Dive Makai. Tancredi engaged Dive Makai to plan and guide a safe recreational dive in an area of the ocean approximately one mile off the coast of Kailua-Kona, Hawaii.

On June 30, 1988, Tancredi presented himself at Kailua Pier for boarding Dive Makai's vessel. He was advised that a dive scheduled for that day was to the "Deep Reef". The plan was a dive to a maximum depth of 145 feet for a maximum time of 20 minutes, with decompression stops at 20 feet for three minutes and at 10 feet for eight minutes.

The dive planned for June 30 was a dive suitable only for very experienced divers because of its depth and the fact that it required several decompression stops. Dive Makai was well aware of the substantial risks and dangers associated with such a deep dive, and it was Dive Makai's usual practice to make sure its customers were ready for the dive by having them participate in less dangerous dives before allowing them to go to the "Deep Reef" location.

Tancredi, however, was not an experienced or advanced diver capable and qualified to participate in a dive as deep as the "Deep Reef" dive planned for June 30. Tancredi also had never gone diving with Dive Makai before. He was the only diver to ever dive with Dive Makai to the "Deep Reef" location who had not been taken on a previous dive by the company. Furthermore, neither Dive Makai's owners nor the dive master, defendant Rich Westphal ("Westphal"), discussed with Tancredi in any detail his diving experience or reviewed his dive log. Dive Makai failed to determine that Tancredi was not adequately prepared for the dive to the "Deep Reef" location before taking him on the dive. However, Tancredi also knew or should have known, based on the basic certification training he had received, that he was not ready for a decompression dive as deep as 145 feet because of his inexperience.

Tancredi was not assigned a "buddy" for the dive by Westphal. The five other customers on the tour, however, were either related or knew each other and had established informal "buddy" arrangements for the dive.

The dive began with the group descending along the anchor line to approximately 137 feet where the anchor was set. During the course of the tour on the bottom, the divers descended further to a maximum depth of 145 feet in order to view black coral and associated fish. The divers stayed close to each other during the tour, although Tancredi made two short excursions away from the others to take pictures.

Approximately 19 minutes into the dive, the group returned to the anchor and began their ascent up the anchor line. Tancredi was fourth up the line followed by Dr. and Mrs. Mel Levy. As the divers began their ascent, Westphal returned to the anchor to inflate a lift bag with his own air so that the bag could later be used to pull up the anchor. Westphal used almost all of his remaining air to inflate the lift bag.

At approximately 120 feet, Tancredi dropped down to the level of the Levys and indicated to Dr. Levy by pointing to his regulator that he was having difficulty in breathing. Dr. Levy thought that Tancredi had sufficient air to make it to the surface and signaled him to ascend. Because Dr. Levy was not Tancredi's "buddy", he did not stay with Tancredi to assist him in breathing or to calm him down. Instead, Dr. Levy descended to obtain assistance from Westphal.

As Westphal approached Tancredi, Tancredi was holding the anchor line and breathing, although his eyes were dilated. Westphal could not help Tancredi because he ran out of air as a result of inflating the lift bag. Westphal motioned to Tancredi to ascend but Tancredi did not move. Since Westphal was out of air, he swam to Mrs. Levy to share air from her tank. Mrs. Levy at that time was above Tancredi. While Westphal was breathing Mrs. Levy's air, he saw Tancredi release his grip from the anchor line and saw blood emitting from Tancredi's nose and mouth. Tancredi became negatively buoyant and sank.

Westphal made a rapid ascent to the surface to obtain help, suffering decompression sickness as a result. The vessel captain, defendant Gary Simons ("Simons"), immediately entered the water in an effort to rescue Tancredi. Simons found Tancredi on the bottom at about 130 feet and brought him to the surface. CPR was unsuccessful and Tancredi died.

The court finds that during the course of the dive, Tancredi ran low on air and had difficulty in breathing, probably caused by an inadequate air supply, the stress and exertion of the dive, nitrogen narcosis, and his lack of experience in deep diving. Tancredi's breathing difficulty caused him to draw more air rapidly from his regulator, which in turn led to greater breathing difficulty. Tancredi ultimately became hypoxic and unconscious. He aspirated sea water and died as a result of drowning. Tancredi probably would not have died had he been taken to the surface when he indicated his distress to Dr. Levy and Westphal.

II. DISCUSSION

A. Jurisdiction and Waiver of Defenses

1. Diversity Jurisdiction

The court has diversity jurisdiction over the action pursuant to 28 U.S.C. § 1332. A federal court sitting in diversity jurisdiction must apply the substantive law of the forum state. Davis v. Metro. Prod., Inc., 885 F.2d 515, 524 (9th Cir.1989). Plaintiffs, therefore, seek a recovery under Hawaii's wrongful death statute, Haw.Rev.Stat. § 663-3, and Hawaii's survivor statutes, Haw.Rev.Stat. §§ 663-7 and 663-8.

Defendants have asserted that admiralty jurisdiction pursuant to 28 U.S.C. § 1333 is also applicable, and hence that admiralty law precludes the application of provisions of the Hawaii wrongful death and survivor statutes to this case. However, defendants did not raise this argument at any time prior to or during the trial.

At the conclusion of the trial, on December 22, 1992, the court ruled from the bench in favor of plaintiffs finding, pursuant to § 663-3, that each of Tancredi's parents is entitled to $125,000 for the loss of love, society and companionship suffered as a result of the death of Tancredi, and, pursuant to §§ 663-7 and 663-8, that Tancredi's estate is entitled to $50,000 for Tancredi's conscious pain and suffering and $86,700 for lost excess future earnings. The court also found contributory negligence on the part of Tancredi and indicated that the damages award would be reduced by twenty percent therefor.

On February 18, 1993, defendants filed a Motion to Amend the Oral Order of the Court Awarding Damages for Loss of Society. Defendants argue that an award for loss of society is not available under general maritime law for non-dependent relatives, citing Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275, 1991 A.M.C. 1 (1990); Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974); and Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339, 1970 A.M.C. 967 (1970). On March 10, 1993, defendants filed a Motion to Further Amend the Oral Order of the Court Awarding Damages for Future Lost Wages. Defendants argue that the court's award of future lost wages is also in error based upon Miles. In Miles, the Supreme Court held that: 1) "there is no recovery for loss of society in a general maritime action for the wrongful death of a Jones Act seaman"; and 2) "a general maritime survival action cannot include recovery for a seaman's lost future earnings." 498 U.S. at 33, 37, 111 S.Ct. at 326, 328, 112 L.Ed.2d at 291, 294.

Defendants' motions are hereby denied. For the reasons set forth below, the court finds that general maritime law is not applicable to the...