Kahue v. Pacific Environmental Corporation et al

Filing 218

ORDER (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS' 105 MOTION FOR SUMMARY JUDGMENT; AND (2) DENYING DEFENDANTS' 109 MOTION FOR SUMMARY JUDGMENT ON COMPLAINT IN INTERVENTION: "On the basis of the foregoing, PENCO's M otion for Summary Judgment, filed on July 19, 2011 is HEREBY GRANTED IN PART and DENIED IN PART. The Motion is GRANTED as to Plaintiff's Count II claim for unseaworthiness and DENIED in all other respects. PENCO's Motion for Summary Judgmen t on Complaint in Intervention, filed on August 3, 2011, is HEREBY DENIED. IT IS SO ORDERED." Signed by District JUDGE LESLIE E. KOBAYASHI on November 29, 2011. (bbb, )CERTIFICATE OF SERVICEParticipants regi stered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CEDRIC K. KAHUE,

)
)
Plaintiff,
)
)
vs.
)
)
PACIFIC ENVIRONMENTAL
)
CORPORATION, ET AL.,
)
)
Defendant.
)
_____________________________ )

CIVIL NO. 10-00001 LEK-KSC

ORDER (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT; AND (2) DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT ON COMPLAINT IN INTERVENTION
Before the Court are the following motions: (1)
Defendants Pacific Environmental Corporation, M/V PENCO 1, and
M/V PENCO 2’s (collectively “Defendants” or “PENCO”) Motion for
Summary Judgment (“Motion”), filed on July 19, 2011; and
(2) PENCO’s Motion for Summary Judgment on Complaint in
Intervention (“Motion on Complaint in Intervention”), filed on
August 3, 2011.

Plaintiff Cedric Kahue (“Plaintiff” or “Kahue”)

filed his memorandum in opposition to the Motion on October 12,
2011, and PENCO filed its reply on October 19, 2011.

Intervenor

Commerce and Industry Insurance Company (“Intervenor” or “CIIC”)
filed its memorandum in opposition to the Motion on Complaint in
Intervention on October 12, 2011, and PENCO filed its reply on
October 19, 2011.

These matters came on for hearing on

October 31, 2011.

Appearing on behalf of PENCO was Richard

Wootton, Esq., appearing on behalf of Plaintiff were Cory
Birnberg, Esq., Collin Marty Fritz, Esq., and Allen Williams,
Esq., and appearing on behalf of Intervenor was Lynn Krieger,
Esq.

After careful consideration of the motions, supporting and

opposing memoranda, and the arguments of counsel, PENCO’s Motion
is HEREBY GRANTED IN PART and DENIED IN PART – the Motion is
GRANTED as to Plaintiff’s Count II claim for unseaworthiness and
DENIED in all other respects – and PENCO’s Motion on Complaint in
Intervention is DENIED for the reasons set forth below.
BACKGROUND
On January 1, 2010, Plaintiff filed a Complaint against
Defendants, seeking recovery under the Jones Act, 46 U.S.C.
§ 30104, for injuries incurred while employed as a seaman by
Defendants.

He alleges that, on June 12, 2008, he was injured

while preparing for a hazardous waste spill response when a large
bale of rags from the second story of a PENCO building fell on
his head.

As a result, Plaintiff is a partial quadriplegic.

[Complaint at ¶¶ 13-14.]

Plaintiff alleges claims for: (1)

negligence (Count I); (2) unseaworthiness (Count II); and (3)
traditional maritime remedies, including maintenance, cure,
found, and wages (Count III).

[Id. at ¶¶ 17-30.]

On April 13, 2011, Intervenor CIIC filed its First
Amended Complaint in Intervention, alleging that it issued an
insurance policy to PENCO against claims under the Longshore and

2

Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq.
(“Longshore Act” or “LHWCA”), under which it paid workers’
compensation benefits to Plaintiff.
Intervention at ¶ V.]

[First Amended Complaint in

Intervenor alleges that it continues to

pay disability compensation and medical expenses for Plaintiff as
a result of the June 12, 2008 injury, and that it is subrogated
to the rights of PENCO and has a lien against any recovery by
Plaintiff in this case.
I.

[Id. at ¶ X.]

Defendants’ Motion
Defendants seek summary judgment on all of Plaintiff’s

claims on the grounds that Plaintiff may not recover under the
Jones Act because he does not qualify for seaman status, and is
already receiving lifetime benefits under the Longshore Act.
Alternatively, Defendants seek partial summary judgment on
Plaintiff’s Count II unseaworthiness claim because no vessel was
involved, and on their affirmative defense to limit liability to
the value of the vessel involved pursuant to 46 U.S.C. § 30501 et
seq.

[Mem. in Supp. of Motion at 1-2.]
PENCO states that it provides environmental remediation

and spill cleanup services, primarily on land, involving
hazardous material and oil spill response operations on roads and
in warehouses, factories, piers, and shipping containers.
[Defendants’ Separate and Concise Statement of Facts (“CSF”),
Declaration of Teal Cross (“Cross Decl.”), at ¶ 2.]

3

PENCO also

performs soil remediation, oil pumping and processing facilities
excavation, above and underground storage tank removal, and
hazardous materials disposal.

[Id. at ¶ 3.]

According to Teal Cross, PENCO’s Executive Vice
President, a small percentage of PENCO’s work takes place at sea,
including marine spill responses, deploying containment booms
around vessels for fueling, and transporting people and equipment
to and from jobsites.

[Id. at ¶ 4.]

PENCO’s marine operations

are conducted primarily from its Boston Whaler, Radon, and three
unpowered skiffs; PENCO employees occasionally work on vessels
owned by the Clean Islands Council (“CIC”), a customer of
PENCO’s, and American Marine Corporation (“AMC”), a separate
business entity.

[Id. at ¶¶ 7-9; Defendants’ CSF, Declaration of

Scott Vuillemot (“Vuillemot Decl.”), at ¶ 3.]
PENCO states that it hired Plaintiff in 1996 as a
laborer, and he later worked as a HAZMAT technician and foreman.
[Cross Decl. at ¶ 11.]

According to Mr. Cross, the “vast

majority of Plaintiff’s work with PENCO was on land jobs
operating cranes, backhoes, excavators, dozers, boom trucks,
loaders, forklifts and pickup trucks.”

[Id. at ¶ 12.]

Plaintiff

also worked on or under piers, vessels tied up to piers or in
drydock, and on vessels in harbor or at sea.

[Id. at ¶¶ 14-16.]

His marine work included operating PENCO’s skiffs to place oil
containment booms around vessels taking on or discharging fuel,

4

transporting passengers and equipment, and occasionally,
performing oil spill clean up and training.

[Id. at ¶ 18.]

Plaintiff also operated and worked aboard skiffs owned and
controlled by CIC or AMC’s boats.

[Id. at ¶ 19.]

According to

Mr. Cross, during Plaintiff’s entire employment with PENCO, he
spent 14.82% of his time in the service of PENCO’s skiffs away
from a dock or underway, 2.72% of his time was on vessels owned
by AMC, and 2.18% on CIC’s and other company’s vessels.

[Id. at

¶¶ 23-24.]
Mr. Cross asserts that PENCO is always prepared to
respond to land or marine cleanup projects, but that it does not
expect its employees to be available for every job arising after
normal work hours, and no PENCO employees are on call for service
on the skiffs.

[Id. at ¶ 25.]

He claims that PENCO allowed

Plaintiff to live at its shop as an accommodation to him,
because, in 2003, Plaintiff was evicted from his apartment and
began sleeping at the shop without approval.

PENCO purchased a

shipping container to be modified as an apartment, which
Plaintiff paid for through payroll deductions.

This

accommodation was not contingent on Plaintiff being available for
work at any time after his regular shift ended.

That is, when

off work, PENCO did not require Plaintiff to be at the pier and
he was not paid for time spent there.

[Id. at ¶ 26.]

On the date of Plaintiff’s injury, Plaintiff was the

5

foreman in charge of mobilizing equipment and supplies at PENCO’s
shop for a highway spill response job in Honolulu.

Plaintiff

ordered two co-workers, James Uyehara and Jarvis Kanakaole, to
load necessary supplies and equipment into a truck.
were in a storeroom on the second floor of the shop.

The supplies
Kahue

testified that he expected his co-workers to carry the supplies
down the stairs, while he waited next to the truck.

Mr. Uyehara,

however, dropped an unopened bale of cleaning rags, weighing
forty to fifty pounds, rather than carrying it down.

No one was

acting as lookout and Mr. Uyehara did not call out a warning.
The bale of rags hit Plaintiff on the head.

Plaintiff agrees

that if proper PENCO procedures for loading supplies were
followed, he would not have been hit in the head.

[Defendants’

CSF, 4/20/11 Deposition of Cedric Kahue (“Kahue Dep.”), at 159,
361-3761.]
A.

Plaintiff Was Not a Seaman
Defendants first argue that Plaintiff’s Jones Act claim

fails because he was a land-based worker, not a seaman.

They

contend that Jones Act seamen have traditionally been afforded
heightened protections not available to land-based maritime
workers.

[Mem. in Supp. of Motion at 9 (citing Chandris v.

Latsis, 515 U.S. 347, 354 (1995)).]

1

The Kahue Deposition is attached as Exh. A to the
Declaration of Richard Wootton (“Wootton Decl.”).
6

In order to qualify as a seaman, Plaintiff must both:
(1) have an employment related connection to a vessel in
navigation on the navigable waters of the United States; and
(2) contribute to the function of the vessel or the
accomplishment of its mission.

To satisfy the first prong, a

seaman must have a connection to a vessel (or group of vessels)
that is substantial in terms of both its duration and its nature.
[Id. (citing Chandris, 515 U.S. at 354).]
PENCO argues that Plaintiff was not in the service of a
vessel at the time of his injury, and spent less than twenty
percent of his time on PENCO’s marine projects.

It argues that,

under Chandris, a worker’s service to a vessel is determinative
of his status as a seaman, and that a seaman must have an
enduring relationship with the vessel.

Even if Plaintiff could

show that he otherwise met the duration requirement, he was
working on a land-based job at the time of the accident and was
not in service of any vessel.

That is, his injury did not arise

out of his service to any vessel.

[Id. at 10-11.]

Next, PENCO argues that Plaintiff’s work does not
satisfy the duration element of the substantial connection test,
which requires that roughly thirty percent of a worker’s time be
spent in service of a vessel in navigation.

Here, Plaintiff

spent only 14.82% of his time in service of PENCO’s vessels.

The

duration element is proper on summary judgment because, “where

7

undisputed facts reveal that a maritime worker has a clearly
inadequate temporal connection to vessels in navigation, the
court may take the question from the jury by granting summary
judgment.”

[Id. at 14 (quoting Chandris, 515 U.S. at 371).]
PENCO also argues that Plaintiff’s unseaworthiness,

maintenance, and cure claims fail because he is not a seaman.

It

notes that unseaworthiness is a form of strict liability unique
to maritime law, but that a vessel owner owes a duty only to
seamen working aboard its vessel to ensure that it is seaworthy.
A seaman is also entitled to recover “maintenance and cure” in
the event he is injured in service of a ship; this right is also
limited to seamen.

Plaintiff is not a seaman, and cannot

maintain his claim for unseaworthiness, maintenance, and cure.
[Id. at 17.]
B.

Partial Summary Judgment on Count II (Unseaworthiness)
Alternatively, PENCO seeks partial summary judgment on

Plaintiff’s unseaworthiness claim.

It argues that Plaintiff was

not injured by a vessel, let alone an unseaworthy one.

Here,

Plaintiff was injured while supervising the loading of a truck
with supplies to clean up a roadside oil spill – there is no
vessel that was a substantial factor in causing his injury.
PENCO argues that there is no legal or factual basis for
Plaintiff’s Count II unseaworthiness claim, and that it is
entitled to summary judgment on that claim.

8

[Id. at 18.]

C.

Partial Summary Judgment as to Limitation of Liability
PENCO also seeks partial summary judgment based on its

affirmative defense of limited liability under the Limitation
Act.

It argues that the Limitation Act’s language is very

general, permitting limitation for “any act . . . done,
occasioned, or incurred, without privity or knowledge of the
matter.”

[Id. at 10 (quoting 46 U.S.C. § 30505).]

PENCO asserts

that there is no evidence that it had any privity and knowledge
that its employees would violate safety procedures, and, barring
such evidence, PENCO is entitled to limit its liability under the
Limitation Act.
II.

[Id.]

Plaintiff’s Memorandum in Opposition
A.

Plaintiff Is a Seaman
In his memorandum in opposition, Plaintiff argues that

he is a Jones Act seaman, and that this determination is a mixed
question of law and fact, which is for the trier of fact and not
appropriate for summary judgment.

[Mem. in Opp. to Motion at 2-

3.]
Plaintiff argues that, under the Chandris test, the
term “seaman” is to be liberally construed.

Plaintiff argues

that he is a seaman because he meets the following four factors:
(1) he contributed to the function of, or helped accomplish the
mission of, a vessel; (2) his contribution was to a particular
vessel or identifiable group of vessels; (3) his contribution was
9

substantial in terms of the duration and nature; and (4) his
employment regularly exposed him to the hazards of the sea.

[Id.

at 4-5.]
First, he argues that the definition of “vessel” is
broad, and that a vessel need not be out to sea.

He argues that

all of the vessels he used during his employment at PENCO should
be considered in determining seaman status regardless of whether
they were in the harbor or the open ocean, including
paddleboards, jet skis, skiffs, dinghies, Boston Whalers, Radons,
and Livingstons.

[Id. at 6.]

Second, Plaintiff argues that his duties contributed to
the function of the vessel, and that he need not have aided in
navigation.

He argues that all “who work at sea in service of

the ship” are eligible for seaman status, and that this threshold
is very broad.

[Id. at 7.]

Third, Plaintiff maintains that he was in service to an
identifiable group of vessels, including other entities’ vessels.
According to Plaintiff, “[i]n service, of course, includes
operations of the vessel but the term is much broader than simply
being on board and/or operating the vessel.

To be in service of

a vessel, one is ‘answerable to the call of duty.’
include being on call.”

[Id. at 9.]

This would

He argues that, because

PENCO was a “24/7 emergency marine response company,” its
employees were subject to being called in, especially Plaintiff,

10

as he was living at the facility and “was effectively on duty
24/7 365 days a year.”

[Id.]

Plaintiff argues that “in service of a vessel, would
necessarily include prepping, repairing, and routine maintenance
of the vessel.”

[Id. at 10.]

He also states that the

requirement is that the employee be in service of the vessel, not
actually on the vessel.

In Defendants’ calculations of the

amount of Jones Act time Plaintiff spent, the time considered was
incorrectly limited to his time spent on the vessel in the water
and away from the dock.

Plaintiff urges the Court to consider

his time spent in service of all PENCO, CIC, and AMC vessels in
determining his seaman status.

[Id. at 10-13.]

Fourth, Plaintiff claims that his contribution was
substantial in terms of duration and nature.

Plaintiff’s own

statistical analysis of the documents produced indicate more than
fifty-five percent of Plaintiff’s time was in service of a vessel
for the three years prior to his injury.

[Id. at 15 (citing

Plaintiff’s Concise Statement of Facts in Opposition (“CSF”),
Declaration of Amy Chan (“Chan Decl.”), passim).]

Plaintiff also

states that “all of the witnesses that have been deposed, that
were asked about Plaintiff’s work, felt that Plaintiff’s time was
at least 70% or more on the water.”

[Id. (citing Plaintiff’s

CSF, Saito Decl., at ¶¶ 17, 21, 24-26, 29, 31, 32, 46; Uyehara
Decl., at ¶¶ 8, 11, 13, 14, 20, 30, 33; Birnberg Decl. ¶¶ 3, 4,

11

10; Kaumeheiwa Decl. ¶ 5).]

Plaintiff argues that Defendants’

calculations are deficient and applied an incorrect (and very
narrow) interpretation of what constitutes Jones Act work,
omitting, for example, all of Plaintiff’s time spent prepping,
maintaining, and repairing the vessels.
was also not included.

Plaintiff’s time on call

There were also numerous discrepancies

and errors in Mr. Cross’s calculations.

Plaintiff argues that

his time in service of a vessel is an issue of fact and that
summary judgment is not appropriate.

[Id. at 16.]

Finally, Plaintiff argues that whether he was exposed
to the “perils of the sea” is not determinative of seaman status,
but, that, in any event, he was so exposed.

Risks encountered by

Plaintiff included failing overboard, drowning, and being exposed
to dangerous marine life.

[Id. at 17-18.]

With respect to the type of job Plaintiff was reporting
for on the day of his injury, he claims that there is no basis to
claim that Plaintiff would even have gone on the “land based job”
that day.

Plaintiff testified that he did not know what type of

job he was preparing for (rags are used for both land based and
marine based jobs).

[Id. at 19 (citing Plaintiff’s CSF,

Declaration of Cedric Kahue (“Kahue Decl.”), at ¶ 25).]

He

argues that the fact that his injury occurred on land does not
deprive him of seaman status.

12

B.

Defendants’ Insurance Coverage and Seaman Status
Plaintiff next argues that PENCO is a Jones Act

Employer, specifically taking out Jones Act insurance to cover
its employees, not only in the service of its own vessels, but in
the service of its customers’ vessels (and the vessels of its
sister organization AMC), without reference to a time percentage
or assignment to a specific identifiable vessel or group of
vessels.

He states that PENCO has marine Protection and

Indemnity (“P&I”) insurance, which specifically includes Jones
Act seaman coverage for employees on vessels and other non-PENCO
owned vessels.

[Id. at 23-24 (citing Plaintiff’s CSF,

Declaration of Cory Birnberg (“Birnberg Decl.”), at ¶¶ 3, 7).]
Plaintiff argues that PENCO’s insurance coverage is indicative of
his seaman status.
C.

[Id. at 24-25.]

PENCO Is Not a Land-Based Company
According to Plaintiff, PENCO is not simply a land-

based company.

PENCO’s website touts its history and services as

marine-based, and, through its insurance coverage, workers’
compensation type benefits are being provided to Plaintiff as a
“maritime worker” under the Longshore Act.

[Id. at 25 (citing

Birnberg Decl. ¶ 2 and Exh. A attached thereto (Website print
outs)).]
D.

Limitation of Liability Is Not Applicable
With respect to PENCO’s affirmative defense under the
13

Limitation Act, Plaintiff argues that PENCO’s skiffs are excluded
under the law.

He states that it is applicable “only to seagoing

vessels, but does not apply to pleasure yachts, tugs, towboats,
towing vessels, tank vessels, fishing vessels, fish tender
vessels, canal boats, scows, car floats, barges, lighters, or
nondescript vessels.”

[Id. at 26 (quoting 46 U.S.C. §30506(a))

(emphasis Plaintiff’s).]
Plaintiff argues that a vessel owner cannot limit
liability if the unseaworthy condition or negligent act was
within its privity and knowledge.

He states that Justin Souza,

supervisor, on site, informed Plaintiff to get ready for a spill.
[Id. at 27 (citing Defendants’ CSF ¶ 28).]

If the vessel owner

or management is on the vessel, knowledge is presumed as it is
something they knew or should have known.

Plaintiff asserts that

46 U.S.C. §§ 30505 and 30506 state that a ship owner may limit
liability for actions arising from personal injury or death only
if the ship owner did not have privity or knowledge of the
negligence or unseaworthiness responsible for the loss.
Supervisors and Vice President Justin Souza and Dave Carter were
present at the time of the Plaintiff’s injury.

Ruben Sabog and

Jacob Darakjaian were Plaintiff’s supervisors and present and
instructing Plaintiff as to the emergency response.

The report

of injury specifically says management was at fault for the
accident and caused Plaintiff to hurry.

14

[Id. at 28 (citing

Birnberg Decl., at ¶ 16 and Exh. N attached thereto (Cross Dep.
82:15-16)).]

Plaintiff argues that limitation is not allowed or

is a triable issue of fact as to Defendants’ privity and
knowledge.
E.

Defendants Are Answerable for Unseaworthiness
With respect to Count II, Plaintiff argues that “it is

a settled rule than a seaman who is not equal in disposition and
seamanship to the ordinary men in the calling makes the vessel
unseaworthy and visits liability on the ship or her owner.”
at 29.]

[Id.

In this case, Plaintiff argues that Mr. Uyehara, the

person who threw the bag of rags on Plaintiff’s head, was not fit
to be a seaman.

“No one throws a heavy bundle from a second

story without looking or having appropriate safety rules.”

[Id.]

Further, PENCO failed to have proper safety rules for its
vessels, its loading and unloading equipment, and supplies for
its vessels were stored in the second story mezzanine.

He argues

that Mr. Uyehara did not have the proper training and the rules
for him were not defined.
unseaworthiness.

Thus, Defendants are liable for his

[Id. (citing Scindia Steam Navigation Co. v.

Moon Engineering Co., 379 F.2d 928 (3rd. Cir. 1967) (“a
supervisor must not assume that a safe condition exists when he
has notice that such may not be the case”)).]
III. Defendants’ Reply
Defendants argue in reply that Plaintiff was not in
15

service of a vessel, was not a seaman, and that summary judgment
is proper here.
A.

Plaintiff Was Not In Service of a Vessel
PENCO argues that a seaman injured on shore is only

entitled to pursue seaman’s remedies if he was in the service of
the vessel at the time of his accident, which precludes Plaintiff
from recovering under the Jones Act here.

Further, even if

Plaintiff could prove seaman status, he was not in the service of
any vessel at the time of the accident.

It is his service to the

vessel, not the mere fact of his employment, which entitles a
seaman to Jones Act protection when injured on shore.
3-4.]

[Reply at

PENCO distinguishes the instant facts from cases in which

“blue water seamen” are injured ashore.

Blue water seamen who

sign seaman’s articles are contractually and statutorily bound to
the vessel during the entirety of the voyage, and retain their
seaman status when injured ashore.
B.

[Id. at 5 (citing cases).]

Plaintiff Was Not a Seaman
PENCO argues that Plaintiff does not qualify for seaman

status as a result of his overall employment with PENCO, and he
does not satisfy the duration element of the Chandris substantial
connection test.

PENCO maintains that only Mr. Cross has

properly analyzed Plaintiff’s day-to-day work records, and he was
the only person with a clear understanding of how to interpret
them because the knew all the jobs, the timekeeping system, had
16

performed all the work himself, and knew what Plaintiff’s
assignments were.

Mr. Cross agreed at his deposition that

certain entries in PENCO’s Timberline accounting system were
miscoded, and he also explained how he checked these to ensure
that his calculations were accurate.

[Id. at 9 (citing Wootton

Decl., at ¶ 4 and Exh. C attached thereto (Cross Dep.)).]
C.

Duration Element and Time Spent in Service of Vessel
PENCO argues that time spent in the service of a vessel

does not count toward the duration element if the plaintiff is
not aboard a vessel.

That is because time spent in the service

of a vessel is the same as time spent doing Jones Act work.

The

case law mandates that a worker who divides time between the
shore and vessel “must demonstrate that he spends a substantial
part of his work time aboard the vessel in order to demonstrate
that he has the requisite connection to a vessel in order to
qualify as a seaman.”

[Id. at 10 (quoting Nunez v. B&B Dredging,

Inc., 288 F.3d 271, 277 (5th Cir. 2002)).]

Defendants argue that

none of the cases cited by Plaintiff supports his proposition
that all time spent by a purported seaman in the service of a
vessel, whether on land or sea, counts toward the thirty percent
seaman status threshold.
D.

[Id. at 10-11.]

Plaintiff’s Other Arguments in Opposition
With respect to Plaintiff’s arguments regarding PENCO’s

P&I insurance, PENCO argues that such coverage does not establish
17

that it employs seaman.

Rather, all it shows is PENCO’s

recognition that a plaintiff might bring such a suit.

By

Plaintiff’s logic, that PENCO also carries Longshore coverage and
has paid out benefits thereunder establishes that Plaintiff was a
harbor worker, not a seaman.

[Id. at 14.]

With respect to Plaintiff’s unseaworthiness claim,
PENCO argues that his opposition cites no cases indicating that
one can have a viable unseaworthiness claim without a vessel.
With respect to the Limitation Act, Plaintiff’s contention that
PENCO didn’t have an established safety procedure for lowering
supplies from the loft to the floor is contrary to Plaintiff’s
own testimony.

PENCO argues that the accident was due to

Mr. Uyehara’s unanticipated violation of an established safety
protocol.
IV.

[Id. at 14-15.]

Defendants’ Motion on the Complaint in Intervention
The second matter before the Court is PENCO’s Motion on

Complaint in Intervention.

It states that CIIC investigated the

matter, concluded that Plaintiff was a harbor worker, and paid
and continues to pay the benefits to which he is entitled
pursuant to the Longshore Act.

CIIC has intervened in this

action to recover those payments from PENCO, but PENCO claims
that CIIC’s lien and subrogation claim are legally deficient
because there is no third party against whom CIIC can bring its
subrogation claim.

[Mem. in Supp. of Motion on Complaint in

18

Intervention at 2.]
A.

Intervenor Has No Right of Recovery
According to PENCO, CIIC has no subrogation rights here

because PENCO cannot sue itself.

It argues that CIIC’s Complaint

in Intervention seeks recovery pursuant to 33 U.S.C. § 933, but
that section only applies when a person other than the employer
is liable for damages.

PENCO asserts that the statute “preserves

a compensated worker’s right to recover damages from parties
other than his employer.”

[Id. at 4 (quoting Peters v. North

River Ins. Co. of Morristown, New Jersey, 764 F.2d 306, 310 (5th
Cir. 1985)) (emphasis Defendants’).]

According to PENCO, an

employer would never sue itself to recover payments for Longshore
benefits made to its employee, nor could it because the
employee’s rights assigned to the employer only permit its suit
of a third person responsible for the injury to the employee.
[Id.]
Under § 933(d), after an assignment to the employer
pursuant to § 933(b), an employer may institute proceedings or
may “compromise with such third person[.]”

Section 933(g)(1)(2)

requires a person entitled to compensation who enters into a
settlement with a third person to seek approval from the employer
and the employer’s carrier, and that person’s failure to notify
the employer of any settlement or judgment rendered against a
third person terminates his or her right to Longshore
19

compensation and benefits.

PENCO argues that, what is missing in

§ 933 is any mention of what CIIC claims it is entitled to here;
that is, Congress did not expressly provide that a Longshore
insurer may sue its insured employer to recover the Longshore
benefits paid to one of its employees.

[Id. at 5-6.]

It claims

that, as a matter of law, CIIC has no right of recovery under
§ 933 against PENCO and summary judgment is proper.
B.

Affect of the Longshore Act
PENCO posits that § 905(b) of the Longshore Act does

not change the above analysis.

PENCO anticipates that CIIC will

argue that an employer can indeed be a third person vis a vis an
injured employee covered by the Longshore Act, which may be
technically true, but does not change the outcome here.
V.

Intervenor’s Memorandum in Opposition
Intervenor argues that PENCO’s motion is an attempt to

prevent the Longshore carrier from interfering with its Jones Act
carrier’s ability to achieve a favorable settlement.

It states

that it has paid nearly one million dollars in ongoing
compensation and benefits to Plaintiff, and that it has a right
to recover the benefits it paid in the event Plaintiff receives
either an award or settlement in this action.

It argues that the

Jones Act carrier has paid nothing to Plaintiff, yet – through
its insured, PENCO – asserts that in the event Plaintiff receives
money through his efforts in prosecuting this action, the
20

Longshore carrier has no right to reimbursement for compensation
and benefits it paid and may continue to pay – at least not by
virtue of intervening in this action.

[Mem. in Opp. to Motion on

Complaint in Intervention at 2.]
A.

Amended Complaint in Intervention
CIIC first argues that the Court’s order granting it

leave to file a complaint in intervention precludes PENCO from
relitigating the question of whether the carrier is entitled to
maintain its complaint in intervention.

On December 15, 2010,

the magistrate judge issued an order that CIIC could intervene in
this suit in order to “protect its rights to any recovery
Plaintiff may obtain in this case.”

[Id. at 6 (quoting Order

Granting Proposed Intervenor Insurance Company of the State of
Pennsylvania’s Motion for Order Granting Leave to Intervene,
filed 12/15/10 (dkt. no. 39), at 12).]

It states that the court

based its findings on the fact that CIIC was intervening in order
to enforce its lien rights once Plaintiff received a settlement
or award.

CIIC argues that the magistrate judge’s findings are

at the heart of what PENCO now seeks to reargue.

[Id.]

It characterizes PENCO’s motion as arguing that the
complaint in intervention was filed against PENCO.

CIIC asserts

that it did not sue PENCO, or bring any claims against PENCO, and
that there can be no issues in dispute between PENCO and itself.
CIIC argues that the law of the case doctrine prevents PENCO from

21

rearguing this issue, and from rearguing the propriety of the
intervention itself.

[Id. at 6.]

Intervenor argues that the issue of whether it, by
intervening in this action, was “suing itself” was explicitly
decided by the court.

Plaintiff opposed the motion to intervene

on the same issue PENCO is now raising.

Specifically, Plaintiff

argued that:
In Section X, proposed Intervenor claims it “has
become subrogated to all of the rights of PEC
[Defendants], and against any third party who is
or may be liable to the plaintiff on account of
his injuries. . .” However, “any third party” is
in fact the Defendants, PEC. Thus, Proposed
Intervenor is claiming all of the rights of PEC
against PEC. Such a circular claim makes
intervention unduly complicated when Proposed
Intervenor can simply assert its lien as a Lien
Claimant.
[Id. at 7 (quoting Plaintiff’s Opposition to COMMERCE AND
INDUSTRY INSURANCE COMPANY’S Motion, at 11-12, Nov. 22, 2010,
attached as Exh. 5 to Declaration of Lynn Kreiger (“Kreiger
Decl.”)).]

According to Intervenor, after full briefing on this

issue, the magistrate judge found that by intervening, CIIC was
not suing itself, but rather intervening in the case for the sole
purpose of protecting the recovery rights that would arise
against Plaintiff’s settlement or award.
Intervenor argues that PENCO’s motion improperly
reargues that it seeks to enforce its rights against PENCO, and
that consequently, it does not have the right to intervene.

22

It

argues that this Court has already decided this issue and
PENCO’s motion should be denied.
B.

[Id.]

Effect of 33 U.S.C. § 933
CIIC next argues that PENCO’s “literal” reading of 33

U.S.C. § 933 is unsupported by law.

It argues that these

sections allow the Longshore carrier (which is subrogated to the
rights of PENCO as a Longshore employer) to recover its lien for
compensation paid.

[Id. at 8-9.]

CIIC cites Peters v. North River Insurance Co., 764
F.2d 306, 312-13 (5th Cir. 1985), stating that the Fifth Circuit
noted that, while the Longshore employer’s liability is exclusive
and without fault, the Longshore employer’s remedy of subrogation
is not, and an employer “is free to assert whatever independent
causes of action against third parties that may exist under
applicable law.”
C.

[Id. at 10.]

Single Employer Can Fill Two Rolls
Intervenor next argues that the treatment of a single

employer as filling two distinct roles is not a novel concept;
the right to reimbursement and the prohibition on double recovery
remain unchanged.

It states that cases in which the injured

worker reimburses the Longshore carrier after receiving an award
or settlement are not limited to situations involving
third-party, non-employer defendants.

Intervenor argues that §

905(b) was created in order to give a claimant the opportunity to
23

sue his employer civilly if his employer also happened to own the
vessel on which the longshoreman was injured.

The creation of

this section alone indicates the recognition that an employer can
wear two different hats.

[Id. at 11.]

It cites Bundens v. J.E. Brenneman Co., 46 F.3d 292
(3rd Cir. 1995), which addressed the same argument raised by
PENCO here, wherein the plaintiffs argued that the dual-capacity
employer could not be a “third person” within the meaning of §
933(f).

Intervenor cites Bundens’ statement that:
We believe that the only meaningful interpretation
of § 933(f) is to treat the employer as a third
party whenever the employee recovers funds from
the employer in other legal proceedings. Section
933(f), as set forth above, indicates that an
employer only has to pay compensation benefits to
the “person entitled to compensation” (“PETC”)
when the amount of the benefits to which the PETC
is entitled under the LHWCA exceeds the net amount
of money that the PETC has recovered from a third
party. If the employer/vessel owner is a third
party, then any monies paid by the employer in the
negligence suit can be used to offset the monies
owed the PETC under the LHWCA. If the
employer/vessel owner is not considered to
be a third party under § 933(f), then the employer
is prohibited from deducting monies already paid.

[Id. at 13 (quoting 46 F.3d at 303).]
According to Intervenor, the only case PENCO cites in
support of its argument is inapplicable, and PENCO acknowledges
it is “not directly on point.”

Intervenor argues that Johnson v.

American Mutual Liability Insurance Co., 559 F.2d 382 (5th Cir.
1977), was not at all on point.

It states that Johnson was a

24

case in which the injured plaintiff attempted to sue the
employer’s Longshore carrier directly, for negligence in failing
to properly inspect and control the safety program at the
plaintiff’s place of work.

Summary judgment was affirmed in

favor of the Longshore carrier because the court found that the
compensation carrier’s inspections of the premises were made
pursuant to its contract of insurance with the employer, only for
purposes of determining compliance with the insurance contract.
The inspections were merely “adjunct” to the contract and largely
for underwriting purposes.

The Longshore carrier could not,

therefore, be held directly liable to the plaintiff for any
injuries caused by his employer’s safety violations.

Intervenor

asserts that Johnson was not a case against the employer for
negligence under the Longshore Act – it was a case for general
negligence against an insurance carrier.

It also was not a

case in which the court was examining a “dual-capacity” employer
under section 905(b) of the Longshore Act.

The Fifth Circuit in

Johnson distinguished this situation from that of a dual-capacity
employer, explaining: “This problem [of bringing the compensation
carrier into the group of ‘third person[s]’ who may be liable for
damages as distinguished from compensation] is not satisfactorily
explained away by saying in effect that when the carrier sues
itself, it, as defendant, can grant a set-off against itself as
plaintiff for the amount of compensation paid, thus preventing a

25

double recovery.”

[Id. at 14-15 (quoting Johnson, 559 F.2d at

390).]
Intervenor maintains that, where the same employer is
liable in two different capacities, and is insured by two
different carriers, the Longshore carrier is simply reimbursed
from the award or settlement paid by the Jones Act carrier in the
civil matter.
D.

[Id. at 15.]

Intervenor Does Not Seek Recovery From PENCO
Intervenor next argues that PENCO’s claim that the

complaint in intervention seeks a recovery against PENCO is
inaccurate.

First, neither the original Complaint in

Intervention nor the First Amended Complaint in Intervention
states any cause of action against PENCO.

The prayer for relief

states only:
That it be adjudged that Intervenor has a lien
against any recovery by plaintiff in this case,
either by way of judgment or settlement, to the
extent of all payments made to and on behalf of
said plaintiff by Intervenor herein under the
Longshore and Harbor Workers’ Compensation Act,
according to proof, and that such lien shall be
enforced against the proceeds of any such
settlement or judgment herein[.]
[Id. at 15 (quoting First Amended Complaint in Intervention at
5).]
Second, Intervenor argues that, at no point in the
ongoing litigation of this case has it attempted to prosecute its
claims against any of the parties.

26

It argues it has, consistent

with its position in the pleadings, refrained from taking a
position on, or attempting to affect, liability.
VI.

[Id. at 15-16.]

Defendants’ Reply
PENCO argues in reply that it is not a “third person”

in relation to CIIC; that is, an employer is not a “third person”
in relation to its own insurer under § 933.

PENCO asserts that

CIIC’s intervention is not necessary to prevent a double recovery
by Plaintiff, but, rather, CIIC is seeking to recover from PENCO
the benefits that it paid on behalf of PENCO.

[Reply to Motion

on Complaint in Intervention at 1.]
A.

PENCO Is Not a Third Person In Relation to CIIC
PENCO argues that, as between an employee and employer,

an employer can bear “third party” liability to the employee by
having a “dual capacity,” with responsibility to the employee for
the payment of workers’ compensation, and potential civil
liability under 33 U.S.C. § 905(b) for the same accident “in a
capacity as a third-party vessel owner.”

[Id. at 2.]

In such

cases, the employee may treat the employer as if it were a third
party to the employment relationship, however, there is no legal
authority allowing the employer to be treated as a “third person”
relative to its own insurer in a Jones Act suit such as this.
[Id. at 3.]
B.

PENCO Did Not Waive Its Right to Bring This Motion
Finally, PENCO argues that, rather than admit the
27

allegations in CIIC’s complaint in intervention, it filed an
answer specifically denying all material allegations, and setting
out affirmative defenses.

It argues that it did not waived its

ability to file the instant motion for summary judgment by not
opposing CIIC’s motion to intervene.

PENCO states that, if

CIIC’s argument were correct, a defendant filing an answer,
rather than first filing a motion to dismiss, would waive its
ability to later challenge the allegations in the complaint by
summary judgment motion.

It argues that there is no legal

support for CIIC’s position that PENCO must have opposed the
motion to intervene as a prerequisite to PENCO challenging the
allegations contained in the complaint in intervention with this
motion for summary judgment.
STANDARD
Pursuant to Federal Rule of Civil Procedure 56(a), a
party is entitled to summary judgment “if the 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.”
Summary judgment must be granted against a
party that fails to demonstrate facts to establish
what will be an essential element at trial. See
Celotex [Corp. v. Catrett], 477 U.S. [317,] 323
[(1986)]. A moving party has both the initial
burden of production and the ultimate burden of
persuasion on a motion for summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210
F.3d 1099, 1102 (9th Cir. 2000). The burden
initially falls on the moving party to identify
for the court “those portions of the materials on
file that it believes demonstrate the absence of
28

any genuine issue of material fact.” T.W. Elec.
Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809
F.2d 626, 630 (9th Cir. 1987) (citing Celotex
Corp., 477 U.S. at 323). “A fact is material if it
could affect the outcome of the suit under the
governing substantive law.” Miller [v. Glenn
Miller Prods., Inc.], 454 F.3d [975,] 987 [(9th
Cir. 2006)].
When the moving party fails to carry its
initial burden of production, “the nonmoving party
has no obligation to produce anything.” In such a
case, the nonmoving party may defeat the motion
for summary judgment without producing anything.
Nissan Fire, 210 F.3d at 1102-03. On the other
hand, when the moving party meets its initial
burden on a summary judgment motion, the “burden
then shifts to the nonmoving party to establish,
beyond the pleadings, that there is a genuine
issue for trial.” Miller, 454 F.3d at 987. This
means that the nonmoving party “must do more than
simply show that there is some metaphysical doubt
as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986) (footnote omitted). The nonmoving
party may not rely on the mere allegations in the
pleadings and instead “must set forth specific
facts showing that there is a genuine issue for
trial.” Porter v. Cal. Dep’t of Corr., 419 F.3d
885, 891 (9th Cir. 2005) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)).
“A genuine dispute arises if the evidence is such
that a reasonable jury could return a verdict for
the nonmoving party.” California v. Campbell, 319
F.3d 1161, 1166 (9th Cir. 2003); Addisu v. Fred
Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000)
(“There must be enough doubt for a ‘reasonable
trier of fact’ to find for plaintiffs in order to
defeat the summary judgment motion.”).
On a summary judgment motion, “the nonmoving
party’s evidence is to be believed, and all
justifiable inferences are to be drawn in that
party’s favor.” Miller, 454 F.3d at 988
(quotations and brackets omitted).
Rodriguez v. Gen. Dynamics Armament & Technical Prods., Inc., 696
F. Supp. 2d 1163, 1176 (D. Hawai`i 2010) (some citations

29

omitted).
DISCUSSION
I.

Defendants’ Motion
The Court first addresses two preliminary matters

raised in Plaintiff’s “Evidentiary Objections in Opposition to
Motion for Summary Judgment” [dkt. no. 163,] and a request for
judicial notice [dkt. no. 164].

First, to the extent Plaintiff

objects to the admissibility of the Declaration of Teal Cross and
argues that Mr. Cross’s factual allegations must be excluded, the
Court overrules the objections.

The Court FINDS that the

Declaration satisfies Rule 56(c)(4) of the Federal Rules of Civil
Procedure, formerly Rule 56(e)(1), which requires affidavits and
declarations supporting or opposing a motion for summary judgment
to “be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.”
Second, Plaintiff requests that the Court take judicial
notice, pursuant to Fed. R. Evid. 201, of his Exhibits A through
D, which include: (1) Brief for Respondent in Southwest Marine,
Inc. v. Byron Gizoni, 502 U.S. 81 (1991) (Exhibit A); (2) Amicus
Curiae Brief of the United States in Support of Respondent in
Southwest Marine, Inc. (Exhibit B); (3) Amicus Curiae Brief of
United Brotherhood of Carpenters and Joiners in Support of
Respondent in Southwest Marine, Inc. (Exhibit C); and Excerpts
30

from the Deposition of Cedric K. Kahue taken on June 3, 2010, in
the longshore action Kahue (Claimant) v. Pacific Environmental
Corp (Employer) and Insurance Company of the State of
Pennsylvania1 (Carrier) [now known as CIIC], OALJ Case No.
2010-LHC-00361; OWCP No. 15-050918 (Exhibit D).
This district court has recognized that:
This court “may take notice of proceedings in
other courts, both within and without the federal
judicial system, if those proceedings have a
direct relation to matters at issue.” United
States ex rel. Robinson Rancheria Citizens Council
v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.
1992). A court may also take judicial notice of
the existence of matters of public record, such as
a prior order or decision, but not the truth of
the facts cited therein. See Lee v. City of Los
Angeles, 250 F.3d 668, 689-690 (9th Cir. 2001);
see also Interstate Natural Gas Co. v. Southern
California Gas Co., 209 F.2d 380, 385 (9th Cir.
1953) (holding a court may take judicial notice of
records and reports of administrative bodies).
Finley v. Rivas, CV 10-00421 DAE-LEK, 2010 WL 3001915, at *2 n.2
(D. Hawai‘i July 31, 2010).
Plaintiff, however, does not appear to rely on the
proffered legal briefs or deposition excerpt for any
“adjudicative facts” contained therein; rather, they support
Plaintiff’s legal arguments.

To the extent that Plaintiff does

not ask the Court to take judicial notice of “adjudicative
facts,” as provided for by Rule Fed. R. Evid. 201(a), the request
for judicial notice is DENIED.

Although it need not take

judicial notice of any facts set forth in these documents, the
31

Court has reviewed and considered the substance of Plaintiff’s
Exhibits A-D in ruling on the Motion.

The Court next turns to

the merits of PENCO’s Motion.
A.

The Motion Is Denied as to Plaintiff’s Seaman Status
PENCO first moves for summary judgment on the grounds

that Plaintiff is not a Jones Act seaman.
The Jones Act provides a cause of action for
any seaman “injured in the course of employment”.
46 U.S.C. § 30104. Section 30104 provides, in
pertinent part, that “[a] seaman injured in the
course of employment or, if the seaman dies from
the injury, the personal representative of the
seaman may elect to bring a civil action at law,
with the right of trial by jury, against the
employer.”
“The determination of who is a seaman is a
mixed question of fact and law.” Scheuring v.
Traylor Bros., Inc., 476 F.3d 781, 785 (9th Cir.
2007) (citing Chandris, Inc. v. Latsis, 515 U.S.
347, 369, 115 S. Ct. 2172, 132 L. Ed. 2d 314
(1995)). As the Ninth Circuit explained in
Scheuring:
In Chandris, the Court articulated a
two-part test which drew on its holdings in
earlier cases:
[T]he essential requirements for seaman
status are twofold. First, as we
emphasized in [McDermott Int’l, Inc. v.]
Wilander, [498 U.S. 337 (1991),] “an
employee’s duties must ‘contribut[e] to
the function of the vessel or to the
accomplishment of its mission.’” . . .
Second, . . . a seaman must have a
connection to a vessel in navigation (or
to an identifiable group of such
vessels) that is substantial in terms of
both duration and its nature.
Chandris, 515 U.S. at 368, 115 S. Ct. 2172
32

(citations omitted). . . .
As the Supreme Court explained in
Chandris, the first part of the requirement
is very broad, covering “‘[a]ll who work at
sea in the service of a ship.’” Id. (quoting
Wilander, 498 U.S. at 354, 111 S. Ct. 807).
The second requirement, on the other hand,
narrows the pool of potential seaman
in order to give full effect to the
remedial scheme created by Congress and
to separate the sea-based maritime
employees who are entitled to Jones Act
protection from those land-based workers
who have only a transitory or sporadic
connection to a vessel in navigation,
and therefore whose employment does not
regularly expose them to the perils of
the sea.
Id. The Court explained that this test is
“fundamentally status based.” Id. at 361,
115 S. Ct. 2172. “Land-based maritime
workers do not become seamen because they
happen to be working on board a vessel when
they are injured, and seamen do not lose
Jones Act protection when the course of their
service to a vessel takes them ashore.” Id.
The Court also equated the question of who is
a “seaman” to the determination of who is a
“member of a crew.” Id. at 356, 115 S. Ct.
2172. Decided two years later, Harbor Tug &
Barge Co. v. Papai, 520 U.S. 548, 117 S. Ct.
1535, 137 L. Ed. 2d 800 (1997), provides
additional guidance on the substantial
connection prong of the test articulated in
Chandris.
For the substantial connection
requirement to serve its purpose, the
inquiry into the nature of the
employee’s connection to the vessel must
concentrate on whether the employee’s
duties take him to sea. This will give
substance to the inquiry both as to the
duration and nature of the employee’s
connection to the vessel and be helpful
33

in distinguishing land-based from
sea-based employees.
Papai, 520 U.S. at 555, 117 S. Ct. 1535. The
crux of the second prong of the “seaman” test
involves distinguishing land-based from
sea-based employees by examining the
employee’s activities and duties.
Id. at 785-86 (some alterations in original).
A “rule of thumb” for determining seaman
status is that “[a] worker who spends less than
about 30 percent of his time in the service of a
vessel in navigation should not qualify as a
seaman under the Jones Act.” Chandris, 515 U.S.
at 371. The Supreme Court cautioned, however,
that the thirty-percent rule of thumb “serves as
no more than a guideline established by years of
experience, and departure from it will certainly
be justified in appropriate cases.” Id.
Nguyen v. Nguyen, Civil No. 10–00320 LEK–RLP, 2011 WL 3793344, at
*5-6

(D. Hawai‘i Aug. 24, 2011).
As to the first prong, the Court FINDS that PENCO has

not met its burden of establishing that Plaintiff did not have a
connection to a vessel.

Plaintiff presented evidence that he had

a connection to PENCO’s and other vessels (Boston Whalers, a
skiff or small boat that ferried him out to sea, and jet skis, as
well as vessels involved in marine clean up), and he contributed
to the accomplishment of the vessels’ mission, namely, marine
clean up.

According to PENCO, Plaintiff worked on or under

piers, vessels tied up to piers or in drydock, and on vessels in
harbor or at sea.

[Cross Decl. at ¶¶ 14-16.]

His marine work

included operating PENCO’s skiffs to place oil containment booms

34

around vessels taking on or discharging fuel, transporting
passengers and equipment, and occasionally, performing oil spill
clean up and training.

[Id. at ¶ 18.]

Plaintiff also operated

and worked aboard skiffs owned and controlled by CIC or AMC’s
boats.

[Id. at ¶ 19.]

For purposes of summary judgment, and

based on the current record, PENCO has not established that
Plaintiff did not “contribut[e] to the function of the vessel or
to the accomplishment of its mission.”

Chandris, 515 U.S. at

368.
As to the second prong, whether his connection to the
vessel was substantial in duration, the Court FINDS that there is
a question of fact as to this material issue, and, therefore,
summary judgment is not appropriate.

The parties presented

entirely contradictory evidence on the duration and nature of
Plaintiff’s duties, work done in the past, and his responsibility
to be available for work on an emergency basis.

For example,

according to Mr. Cross, during Plaintiff’s entire employment with
PENCO, he spent 14.82% of his time in the service of PENCO’s
skiffs away from a dock or underway, 2.72% of his time was on
vessels owned by AMC, and 2.18% on CIC’s and other company’s
vessels.

[Cross Decl. at ¶¶ 23-24.]

Plaintiff argues that

Defendants’ calculations are incorrect and omitted all of
Plaintiff’s time spent prepping, maintaining, and repairing the
vessels, and Plaintiff’s time on call.

35

Plaintiff’s own

statistical analysis shows that more than fifty-five percent of
Plaintiff’s time was in service of a vessel, for the three years
prior to his injury.

[Mem. in Opp. at 15 (citing Plaintiff’s

CSF, Chan Decl., passim).]

Further, “all of the witnesses that

have been deposed, that were asked about Plaintiff’s work, felt
that Plaintiff’s time was at least 70% or more on the water.”
[Id. (citing Plaintiff’s CSF, Saito Decl., at ¶¶ 17, 21, 24-26,
29, 31, 32, 46; Uyehara Decl., at ¶¶ 8, 11, 13, 14, 20, 30, 33;
Birnberg Decl. ¶¶ 3, 4, 10; Kaumeheiwa Decl. ¶ 5).]
For purposes of summary judgment, and viewing the
evidence in the light most favorable to the non-moving party,
PENCO has not established as a matter of law that Plaintiff did
not have a connection to a vessel in navigation that is
substantial in terms of both duration and its nature.

The Motion

is DENIED as to this issue.
B.

The Motion Is Granted as to Count II (Unseaworthiness)
PENCO also moves for summary judgment on Plaintiff’s

Count II claim for unseaworthiness.
The admiralty doctrine of unseaworthiness is
a form of strict liability that requires the owner
of a vessel to ensure that a vessel and its
appurtenant equipment and appliances are
“reasonably fit for her intended service.” Usner
v. Luckenbach Overseas Corp., 400 U.S. 494, 499
(1971); see also Seas Shipping Co. v. Sieracki,
328 U.S. 85, 90 (1946). Although the origins of
the unseaworthiness doctrine are “perhaps
unascertainable,” Sieracki, 328 U.S. at 91, the
doctrine likely developed from the seaman’s right
to abandon an improperly fitted vessel. Arizona
36

v. Anelich, 298 U.S. 110, 121, n.2 (1936). The
doctrine appears to have been established in the
late nineteenth century as a response to the
increased danger seamen faced aboard more modern
vessels. See Sieracki, 328 U.S. at 92 n.9 (“With
the advent of steam navigation, however, it was
realized . . . that ‘maintenance and cure’ did not
afford to injured seamen adequate compensation in
all cases for injuries sustained.” (citing The
State of Maryland, 85 F.2d 944, 945 (4th Cir.
1936))); see also Mahnich v. S.S.S. Co., 321 U.S.
96, 99 (1944) (“[Unseaworthiness] was generally
applied, before its statement in [The Osceola, 189
U.S. 158, 171 (1903),] by numerous decisions of
the lower federal courts during the last
century.”); The Edith Godden, 23 F. 43, 46
(D.C.N.Y. 1885). But see Usner, 400 U.S. at 497
(“[Unseaworthiness arose] from its humble origin
as a dictum in an obscure case in 1922 . . . .“
(citing Carlisle Packing Co. v. Sandanger, 259
U.S. 255 (1922))); Sieracki, 328 U.S. at 104
(Stone, C.J., dissenting) (“[I]ndemnity for
injuries resulting from unseaworthiness was first
recognized by this Court in The Osceola.”).
Wagner v. Kona Blue Water Farms, LLC, Civil No. 09-00600 JMS/BMK,
2010 WL 3566731, at *2 (D. Hawai‘i Sept. 13, 2010).
To establish a claim for unseaworthiness, a plaintiff
must establish: “(1) the warranty of seaworthiness extended to
him and his duties; (2) his injury was caused by a piece of the
ship’s equipment or an appurtenant appliance; (3) the equipment
used was not reasonably fit for its intended use; and (4) the
unseaworthy condition proximately caused his injuries.”

Ribitzki

v. Canmar Reading & Bates, Ltd. P’ship, 111 F.3d 658, 664-65 (9th
Cir. 1997).
“[A] shipowner’s liability for an unseaworthy vessel
extends beyond the members of the crew and includes a
37

longshoreman. . . .”

Usner, 400 U.S. at 497-98.

In Usner, the

court explained that the plaintiff’s injuries were not caused by
the condition of the ship, its appurtenances, cargo, or crew,
“but the isolated, personal negligent act of the petitioner’s
fellow longshoreman.

To hold that this individual act of

negligence rendered the ship unseaworthy would be to subvert the
fundamental distinction between unseaworthiness and negligence
that we have so painstakingly and repeatedly emphasized in our
decisions.”

Id. at 500 (footnotes omitted).

Usner concluded

that it would be error “where no condition of unseaworthiness
existed, to hold the shipowner liable for a third party’s single
and wholly unforeseeable act of negligence.”

Id.

In this case, Plaintiff was not injured by a vessel, a
piece of the ship’s equipment, or an appurtenant appliance.
Rather, Plaintiff was injured while supervising the loading of a
truck with supplies to clean up a roadside oil spill.

The

Supreme Court examined “appurtenances” in Victory Carriers, Inc.
v. Law, 404 U.S. 202, 202-03 (1971), considering “whether state
law or federal maritime law governs the suit of a longshoreman
injured on a pier while driving a forklift truck which was moving
cargo that would ultimately be loaded aboard ship.”

The Court

found that in that case, “the typical elements of a maritime
cause of action are particularly attenuated: [the longshoreman]
was not injured by equipment that was part of the ship’s usual

38

gear or that was stored on board, the equipment that injured him
was in no way attached to the ship, the forklift was not under
the control of the ship or its crew, and the accident did not
occur aboard ship or on the gangplank.”

Id. at 213-14.

In

Victory Carriers, “the Supreme Court placed a substantive
limitation on at least the shoreward reach of the seaworthiness
remedy.”

Drachenberg v. Canal Barge Co., Inc., 571 F.2d 912, 919

(5th Cir. 1978)
Likewise, in the instant case, it is undisputed that
the accident occurred somewhere at PENCO’s warehouse near the
pier, as opposed to on a gangplank or aboard a vessel.
Plaintiff, therefore, cannot maintain a claim for
unseaworthiness.

See Parker v. South Louisiana Contractors,

Inc., 537 F.2d 113 (5th Cir. 1976) (finding that a ramp
permanently attached to dock was not an appurtenance of the
vessel); cf. Drachenberg, 571 F.2d at 921 (concluding that
dockside marine unloading arm “firmly and physically attached to
the vessel” was an appurtenance thereof).
The Court therefore GRANTS PENCO’s Motion as to
Plaintiff’s Count II unseaworthiness claim.
C.

The Motion Is Denied as to Limitation of Liability
Finally, PENCO moves for summary judgment on its

affirmative defense of limitation of liability.
Act provides:

39

The Limitation

(a) In general.--Except as provided in section
30506 of this title, the liability of the owner of
a vessel for any claim, debt, or liability
described in subsection (b) shall not exceed the
value of the vessel and pending freight. If the
vessel has more than one owner, the proportionate
share of the liability of any one owner shall not
exceed that owner’s proportionate interest in the
vessel and pending freight.
(b) Claims subject to limitation.--Unless
otherwise excluded by law, claims, debts, and
liabilities subject to limitation under subsection
(a) are those arising from any embezzlement, loss,
or destruction of any property, goods, or
merchandise shipped or put on board the vessel,
any loss, damage, or injury by collision, or any
act, matter, or thing, loss, damage, or
forfeiture, done, occasioned, or incurred, without
the privity or knowledge of the owner.
(c) Wages.--Subsection (a) does not apply to a
claim for wages.
46 U.S.C. § 30505.
The act is limited as follows:
(a) Application.--This section applies only to
seagoing vessels, but does not apply to pleasure
yachts, tugs, towboats, towing vessels, tank
vessels, fishing vessels, fish tender vessels,
canal boats, scows, car floats, barges, lighters,
or nondescript vessels.
(b) Minimum liability.--If the amount of the
vessel owner’s liability determined under section
30505 of this title is insufficient to pay all
losses in full, and the portion available to pay
claims for personal injury or death is less than
$420 times the tonnage of the vessel, that portion
shall be increased to $420 times the tonnage of
the vessel. That portion may be used only to pay
claims for personal injury or death.
(c) Calculation of tonnage.--Under subsection (b),
the tonnage of a self-propelled vessel is the
gross tonnage without deduction for engine room,
40

and the tonnage of a sailing vessel is the tonnage
for documentation. However, space for the use of
seamen is excluded.
(d) Claims arising on distinct
occasions.--Separate limits of liability apply to
claims for personal injury or death arising on
distinct occasions.
(e) Privity or knowledge.--In a claim for personal
injury or death, the privity or knowledge of the
master or the owner’s superintendent or managing
agent, at or before the beginning of each voyage,
is imputed to the owner.
46 U.S.C. § 30506.
First, as Plaintiff notes, the act applies “only to
seagoing vessels, but does not apply to pleasure yachts, tugs,
towboats, towing vessels, tank vessels, fishing vessels, fish
tender vessels, canal boats, scows, car floats, barges, lighters,
or nondescript vessels.”

46 U.S.C. § 30506(a).

Although the

parties have not thoroughly briefed this issue, it appears that
the Boston Whalers, skiffs, jet skis, and tugboats that Plaintiff
worked on are excluded under this definition.

See Matter of

Talbott Big Foot, Inc., 854 F.2d 758, 761-62 (5th Cir. 1988)
(“[T]he inquiry to determine whether a particular vessel is
‘seagoing’ . . . is whether the vessel does, or is intended to,
navigate in the seas beyond the Boundary Line in the regular
course of its operations.

These operations may in fact proceed

on either side of the Boundary Line; but the court must find
that, considering the design, function, purpose, and capabilities
of the vessel, it will be normally expected to engage in
41

substantial operations beyond the nautical boundary.”).
In any event, even if a vessel does fall within the
ambit of the act, a question of fact remains as to the material
issue of whether or not the owner had privity or knowledge.
Privity or knowledge exists where the owner has
actual knowledge or could have and should have
obtained the necessary information by reasonable
inquiry or inspection. This is basically a
“reasonable man” test. Moreover, for purposes of
establishing privity or knowledge regarding
limitation as to personal injury and death
claimants, the privity or knowledge of the master
of the vessel at or before the beginning of each
voyage is deemed conclusively the privity or
knowledge of the owner. See 46 U.S.C. § 30506;
see also Trico Marine Assets, Inc. v. Diamond B
Marine Servs. Inc., 332 F.3d 779, 789-90 (5th Cir.
2003) (“[I]n situations resulting in loss of life
or bodily injury, the knowledge of a seagoing
vessel’s master at the commencement of a voyage is
imputed to the vessel’s owner.”); Pennzoil
Producing Co. v. Offshore Exp., Inc., 943 F.2d
1465, 1473-74 (5th Cir. 1991) (“[A] shipowner has
privity if he personally participated in the
negligent conduct or brought about the unseaworthy
condition. Knowledge, when the shipowner is a
corporation, is judged not only by what the
corporation’s managing officers actually knew, but
also by what they should have known with respect
to conditions or actions likely to cause the
loss.”)
In re Int’l Marine, LLC, 614 F. Supp. 2d 733, 740-41 (E.D. La.
2009).
Here, Plaintiff presented evidence regarding whether
the supervisors and vice presidents were present and directing
the manner of work being done at the time of the accident.
Plaintiff claims that supervisors and vice president and

42

Dave Carter were present at the time of the Plaintiff’s injury.
Ruben Sabog, Justin Souza and Jacob Darakjaian were Plaintiff’s
supervisors and present and instructing Plaintiff as to the
emergency response.

Further, the report of injury specifically

says management was at fault for the accident and caused
Plaintiff to hurry.

[Mem. in Opp. at 28 (citing Birnberg Decl.,

at ¶ 16 and Exh. N attached thereto (Cross Dep. 82:15-16)).]
PENCO did not contest this evidence on summary judgment.

The

Court FINDS that there is a triable issue of fact as to
Defendants’ privity and knowledge, thereby rendering summary
judgment inappropriate.
II.

The Motion is DENIED as to this issue.

Motion on Complaint in Intervention
PENCO also seeks summary judgment on Intervenor’s First

Amended Complaint in Intervention.

The Court first notes that on

December 15, 2010, the magistrate judge issued an order that CIIC
could intervene in this suit in order to “protect its rights to
any recovery Plaintiff may obtain in this case.”

[Order Granting

Proposed Intervenor Insurance Company of the State of
Pennsylvania’s Motion for Order Granting Leave to Intervene,
filed 12/15/10 (dkt. no. 39), at 12-13).]

The magistrate judge

concluded that Plaintiff and Intervenor would seek recovery from
the same fund, and therefore, Plaintiff would not adequately
represent Intervenor’s interests in this matter, and Intervenor
was entitled to intervene as a matter of right.

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[Id. at 10.]

The magistrate judge based his findings on the fact that CIIC was
intervening in order to enforce its lien rights once Plaintiff
received a settlement or award.
Turning to the Longshore Act, § 935 (“Substitution of
carrier for employer”) provides that the carrier may discharge
“for such [insured] employer . . . such obligations and duties of
the employer in respect of such liability, imposed by this Act.”
Section 933(h) (“Subrogation”) provides that “[w]here the
employer is insured and the insurance carrier has assumed the
payment of the compensation, the insurance carrier shall be
subrogated to all the rights of the employer.”

Sections 935 and

933(h) together provide that the carrier may step into the shoes
of the employer it insures.
Longshore employer.

Here, that employer is PENCO, as the

The Intervenor Longshore carrier is the

party is enforcing its right to recover compensation and
benefits, against a settlement or award to Plaintiff.
Section 903(e) provides “[n]otwithstanding any other
provision of law, any amounts paid to an employee for the same
injury, disability, or death for which benefits are claimed under
this Act . . . shall be credited against any liability imposed by
this Act.”

Section 933(f), provides “[i]f the [claimant]

institutes proceedings . . . the employer shall be required to
pay as compensation . . . a sum equal to the excess of the amount
which the Secretary determines is payable on account of such

44

injury . . . over the net amount recovered against such third
person.”

These sections allow the Longshore carrier to recover

its lien for compensation paid, and receive a credit for future
compensation the Longshore carrier may be obligated to pay, over
and above the net amount of a plaintiff’s settlement or award,
preventing duplicative compensation.

See Taylor v. Bunge Corp.,

845 F.2d 1323, 1327 (5th Cir. 1988) (“Thus the LHWCA creates a
harmonious scheme, guaranteeing both that the exclusive remedy
against the employer is the employee’s action for statutory
benefits, and that, in the event of a longshoreman’s recovery
against a third party, the employer’s lien prevents double
recovery.”); see also id. at 1329 (“If we disallow the lien in
cases such as this one, injured vessel employed longshoremen
could easily word settlement agreements to avoid the employer’s
lien.”).
The Court FINDS that the Intervenor Longshore carrier
here seeks only to preserve its lien rights, and has the right to
recover compensation and benefits paid in the event Plaintiff
recovers against a third-party, including PENCO or its Jones Act
carrier.

The Motion on Complaint in Intervention is DENIED.
CONCLUSION
On the basis of the foregoing, PENCO’s Motion for

Summary Judgment, filed on July 19, 2011 is HEREBY GRANTED IN
PART and DENIED IN PART.

The Motion is GRANTED as to Plaintiff’s

45

Count II claim for unseaworthiness and DENIED in all other
respects.

PENCO’s Motion for Summary Judgment on Complaint in

Intervention, filed on August 3, 2011, is HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, November 29, 2011.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

CEDRIC KAHUE V. PACIFIC ENVIRONMENTAL CORPORATION, ET AL; CIVIL
NO. 10-00001 LEK-KSC; ORDER (1) GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; AND (2) DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON COMPLAINT IN
INTERVENTION

46