Barnes v. Sea Hawaii Rafting, LLC et al
Filing
197
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AS TO UNSEAWORTHINESS, NEGLIGENCE PER SE, AND FOR JONES ACT NEGLIGENCE, AND DISMISSING DEFENDANT M/V TEHANI FOR LACK OF JURISDICTION re 108 - Signed by JUDGE ALAN C KAY on 12/22/2015. "For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART Plaintiff Barnes's Motion for Summary Judgment as to Unseaworthiness, Negligence Per Se, and Jones Act Negligence (Doc. No . 108.) As to Count XII of the First Amended Complaint (Barnes's negligence per se claim), the Court GRANTS the Motion as to Defendant Sea Hawaii Rafting, LLC, but DENIES it as to the remaining Defendants. The Court DENIES the Motion as to Count s I and II. In addition, the Court DISMISSES all claims against Defendant M/V Tehani, in rem, for lack of jurisdiction." (emt, )CERTIFICATE OF SERVICEParticipants registered 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
CHAD BARRY BARNES,
Plaintiff,
v.
SEA HAWAII RAFTING, LLC, KRIS
HENRY, M/V TEHANI, et al.,
Defendants.
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Civ. No. 13-00002 ACK-RLP
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT AS TO UNSEAWORTHINESS, NEGLIGENCE PER SE, AND
JONES ACT NEGLIGENCE, AND DISMISSING DEFENDANT M/V TEHANI FOR
LACK OF JURISDICTION
For the following reasons, the Court GRANTS IN PART AND
DENIES IN PART Plaintiff Chad Berry Barnes’s Motion for Summary
Judgment as to Unseaworthiness, Negligence Per Se, and Jones Act
Negligence. (Doc. No. 108.) As to Count XII of the First Amended
Complaint (Barnes’s negligence per se claim), the Court GRANTS
the Motion as to Defendant Sea Hawaii Rafting, LLC, but DENIES it
as to the remaining Defendants. The Court DENIES the Motion as to
Counts I and II. In addition, the Court DISMISSES all claims
against Defendant M/V Tehani, in rem, for lack of jurisdiction.
FACTUAL BACKGROUND
This matter arises under admiralty law. Plaintiff Chad
Berry Barnes claims he was injured while working as a seaman
aboard the vessel M/V TEHANI. Defendant Sea Hawaii Rafting, LLC
is the owner of the Tehani, and Defendant Kris K. Henry is the
Master of Vessel of the Tehani and sole owner and manager of Sea
Hawaii Rafting, LLC. (Def.’s CSF, Henry Decl. ¶¶ 1, 3 & Ex. A;
Pl.’s CSF, Ex. I; Answer ¶ 10.) The vessel is a 25-foot rigidhull inflatable boat powered by twin outboard engines. (Def.’s
CSF, Henry Decl. ¶ 3.)
On July 3, 2012, the date of the accident in question,
Barnes states that he was called into work to replace a deck hand
who was unable to work as scheduled. (Pl.’s CSF, Ex. J (Barnes
Aff.) at ¶ 3.) At the time of the accident, Henry and Barnes were
preparing the vessel for an evening snorkel trip. (Id. ¶ 4.)
Henry was backing the Tehani, which was on a trailer, into the
water at the Honokohau Small Boat Harbor in Kailua-Kona, Hawaii.
(Def.’s CSF ¶ 9.) Once the vessel was lowered into the water,
Henry instructed Barnes to start the engine; when Barnes did so,
there was an explosion from under the floorboards which caused
parts of the vessel to be thrown into the air, striking Barnes on
the back of the head and causing his claimed injuries. (Pl.’s
CSF, Ex. E (Coast Guard Investigator Statement Form) at 1; Def.’s
CSF ¶¶ 9-10.)
The explosion and fire appear to have been caused by
fuel that had leaked out of the fuel tank through a missing bolt
in the fuel tank sender gauge; the fuel leaked into the bilge and
ignited when Barnes started the engine. (Def.’s CSF ¶¶ 14-15;
Pl.’s CSF, Ex. C (Offshore Marine Surveyors Field Report) at 1.)
2
PROCEDURAL BACKGROUND
On January 1, 2013, Barnes filed a Verified Complaint
against Sea Hawaii Rafting, LLC, Kris Henry, and a number of Doe
defendants, in personum, and M/V TEHANI, HA-1629 CP, and her
engines, equipment, tackle, stores, furnishings, cargo and
freight, in rem. (Doc. No. 1.) Barnes filed his unverified First
Amended Complaint on May 21, 2014. (Doc. No. 91 (“FAC”).) In the
First Amended Complaint, Barnes brings the following claims: (1)
negligence under the Jones Act, 46 U.S.C. § 688, against the in
personam Defendants (Count I); (2) unseaworthiness as against the
M/V TEHANI, in rem, and the in personam Defendants (Count II);
(3) maintenance, cure, and wages under general maritime law
(Count III); (4) compensation and recovery for negligence
pursuant to the Longshore and Harbor Workers’ Compensation Act,
33 U.S.C. § 905, against the in personam and in rem Defendants
(Counts IV-VI); (5) individual liability of Defendant Kris Henry
and the Doe Defendants for the negligence of Sea Hawaii Rafting,
pursuant to a theory of “piercing the veil of limited liability”
(Count VII); (6) intentional and/or negligent infliction of
emotional distress as against all Defendants (Count VIII); and
Jones Act negligence per se (Count XII).1/ (Id. ¶¶ 23-71.) On
1/
With his First Amended Complaint, Barnes also filed a
demand for jury trial. (Doc. No. 91, Ex. 3.) While no jury trial
is available to claims brought under general admiralty law, see
Fed. R. Civ. P. 38(e), Barnes’s Jones Act claims do give rise to
a right to trial by jury. See 46 U.S.C. § 30104. The United
3
July 7, 2014, Defendants Kris Henry, M/V Tehani, and Sea Hawaii
Rafting, LLC filed their Answer to the First Amended Complaint.
(Doc. No. 107.)
On August 20, 2013, Barnes filed a Motion for Summary
Judgment for Payment of Maintenance and Cure, asking for judgment
as to Count III of his complaint. (Doc. No. 25.) On November 15,
2013, the Court issued its Order Granting in Part and Denying in
Part Plaintiff’s Motion for Summary Judgment for Payment of
Maintenance and Cure. (Doc. No. 44.) In the Order, the Court
found that Barnes is entitled to maintenance and cure from July
3, 2012 (the date of his injury) until he reaches maximum cure,
and that Barnes had sufficiently proffered evidence that his
actual daily expenses are approximately $68 per day. (Id. at 9,
12.) The Court denied Barnes’s motion as to the appropriate
States Supreme Court has ruled that a seaman who joins in one
complaint claims under the general admiralty law and the Jones
Act, all arising out of one set of facts, is entitled to a jury
trial as of right on all claims. See Fitzgerald v. U.S. Lines
Co., 374 U.S. 16 (1963). At the hearing on the instant Motion,
counsel for Barnes stated that he wished to withdraw his demand
for a jury trial. In addition, on December 17, 2015, Barnes filed
a Waiver of Jury Demand. (Doc. No. 196.) Under Rule 39(a) of the
Federal Rules of Civil Procedure, after a demand for jury trial
has been made, the Court may only proceed with a bench trial if
the parties or their attorneys file a stipulation to a nonjury
trial or so stipulate on the record. Fed. R. Civ. P. 39(a)(1).
Here, counsel for Barnes, counsel for Defendant Henry, and
counsel for the bankruptcy trustee in the Sea Hawaii Rafting
bankruptcy proceeding all stipulated to a waiver of jury trial on
the record during the hearing on the instant Motion. The Court is
therefore satisfied that it may proceed with a nonjury trial in
this matter.
4
amount of maintenance and cure; however, finding that Barnes
failed to proffer sufficient evidence to demonstrate the
reasonable amount of maintenance for a seaman in Barnes’s
locality, and failed to prove his medical expenses.2/ (Id. at
18.)
On January 27, 2014, Barnes filed a second Motion for
Summary Judgment for Payment of Maintenance. (Doc. No. 58.) The
Court denied the motion on April 15, 2014, concluding that issues
of fact precluded a determination as a matter of law on the issue
of the appropriate rate of maintenance.3/ (Doc. No. 77.) On May
30, 2014, Barnes filed his Third Motion for Summary Judgment for
Payment of Maintenance. (Doc. No. 94.) In addition, on July 1,
2014, Barnes filed a Motion for Summary Judgment for Payment of
Cure. (Doc. Nos. 103.) The Court issued orders denying both
motions on September 2, 2014. (Doc. Nos. 120, 121.)
On July 7, 2014, Barnes filed the instant Motion for
Summary Judgment as to Unseaworthiness, Negligence Per Se, and
Jones Act Negligence, along with a concise statement of facts and
2/
On November 22, 2013, Barnes filed a Motion for
Reconsideration of the 11/15/13 Order. (Doc. No. 45.) The Court
denied the motion on December 13, 2013. (Doc. No. 51.)
3/
Barnes filed a Motion for Reconsideration of the 4/15/14
Order on April 16, 2014, (doc. no. 78,) which the Court denied on
May 14, 2014. (Doc. No. 88.)
5
numerous exhibits.4/ (Doc. Nos. 108 & 109.) On September 29,
2014, Defendants filed their memorandum in opposition to the
Motion, along with a concise statement of facts and exhibits.
(Doc. Nos. 124 & 125.) Barnes did not file a reply.5/
4/
The Court notes that Barnes has once again violated the
Local Rules by attaching his supporting exhibits to his motion,
rather than his separate concise statement of facts. See Local
Rule 56.1(h). Additionally, Barnes states in his Motion that he
“hereby incorporates by reference all his prior motions for
summary judgment in this case, along with all supporting
memoranda, declarations, affidavits and exhibits attached
thereto.” (Mot. at 2.) As this Court made clear in its September
2, 2014 Order Denying Plaintiff’s Third Motion for Summary
Judgment for Payment of Maintenance, it is a violation of the
Federal Rules of Civil Procedure for Barnes to attempt to so
incorporate by reference his previous filings. (Doc. No. 120 at
11 & n.9.) Under Federal Rule of Civil Procedure 10(c), parties
may incorporate by reference only pleadings or exhibits to
pleadings. See Swanson v. U.S. Forest Serv., 87 F.3d 339, 345
(9th Cir. 1996) (holding that, under Rules 7(b)(2) and 10(c),
“the incorporation of substantive material by reference is not
sanctioned by the federal rules . . ..”); Horsley v. Feldt, 304
F.3d 1125, 1134 (11th Cir. 2002) (stating that Rule 10(c) applies
to “pleadings” and not “motions”. A pleading is a complaint, an
answer, or a court-allowed reply to an answer — not a motion or
other paper. Fed. R. Civ. P. 7. There is no authority for
Barnes’s attempt to incorporate prior briefing instead of
articulating and supporting with evidence his arguments in the
instant motion. See Roth v. Meridian Fin. Network, Inc., No.
07–00045, 2008 WL 3850478, at *2 (D. Haw. Aug. 19, 2008). The
Court will therefore not consider any of the materials Barnes
purports to incorporate by reference. The Court further notes
that Defendants have likewise violated the Local Rules with their
own concise statement of facts by failing to include “a single
concise statement that admits or disputes the facts set forth in
the moving party’s concise statement.” Local Rule 56.1(b). The
Court cautions both parties that further violations of this
Court’s Local Rules or the Federal Rules of Civil Procedure may
result in sanctions.
5/
Barnes did, however, file a Fourth Motion for Summary
Judgment to Set a Maintenance Rate on July 1, 2015. (Doc. No.
157.) During the hearing on the instant motion, the Court
6
A hearing on the Motion was originally scheduled for
November 17, 2014; however, on November 3, 2014, Defendant Kris
Henry filed a Notice of Filing of Bankruptcy with this Court,
indicating that he had filed for Chapter 13 bankruptcy protection
in the United States Bankruptcy Court, District of Hawaii. (Doc.
No. 142.) Likewise, on November 13, 2014, Defendant Sea Hawaii
Rafting, LLC filed Notice with the Court that it had filed for
Chapter 7 bankruptcy protection in the United States Bankruptcy
Court, District of Hawaii. (Doc. No. 148.) The Court therefore
stayed the instant case pursuant to 11 U.S.C. § 362(a). (Doc. No.
152.) On June 22, 2015, Barnes filed a notice with this Court
that the bankruptcy judge had partially lifted the automatic stay
questioned the parties regarding the reasonable maintenance rate
in Barnes’s locale. Counsel for Defendant Henry stated that a
rate of $30 per day sounded reasonable. Barnes’s counsel declined
to stipulate to that rate; however, he stated that he would be
agreeable to whatever rate the Court determined. Accordingly,
without Barnes’s stipulation, the Court will be required to
determine the appropriate maintenance rate at trial. In his most
recent summary judgment motion regarding maintenance, Barnes has
raised no new issues of law or fact that would change this
Court’s prior conclusion that there is a factual dispute
regarding the reasonable maintenance rate for a single seaman in
Barnes’s locale. (See Doc. 120 at 14.) In view of the foregoing
and the fact that this matter will be set for trial shortly, the
Court suggests it appears in the interests of justice, as well as
the interest of the parties, for Barnes to withdraw his Fourth
Motion for Summary Judgment to Set a Maintenance Rate, and for
these issues to be determined at trial.
7
as to Defendant Kris Henry to allow the Court to “value to its
conclusion” Barnes’s claim against him.6/ (Doc. No. 155.)
On November 25, 2015, the bankruptcy judge partially
lifted the automatic stay as to Defendant Sea Hawaii Rafting, to
permit this Court “to adjudicate the validity, extent, amount,
and date of perfection of any maritime lien claim by Chad Barnes
against the assets of the bankruptcy estate.” (Doc. No. 182, Ex.
B.) The stay was not lifted, however, for any other purpose,
including with respect to the enforcement of any such maritime
lien.7/
In light of the lifting of the bankruptcy stays, the
Court held the hearing on the instant Motion on December 16,
2015. At the hearing, counsel for Barnes appeared, as well as
counsel for Defendant Henry (who also represents Henry in his
bankruptcy proceeding), and counsel for the bankruptcy trustee in
the Sea Hawaii Rafting bankruptcy proceeding.8/
6/
The bankruptcy court stated that the stay was not lifted,
however, as to the Tehani, reasoning that this Court does not
have jurisdiction over the vessel in rem because the vessel has
not been arrested pursuant to the Supplementary Rules for Certain
Admiralty Claims. (See id.)
7/
This Court thereafter ordered supplemental briefing
regarding the issues raised by the bankruptcy court’s order. The
parties, as well as the Bankruptcy Trustee in the Sea Hawaii
Rafting bankruptcy case, each timely filed those briefs. (Doc.
Nos. 188, 189 & 194.)
8/
The Ninth Circuit has stated that, in Chapter 7
liquidation proceedings (like the Sea Hawaii Rafting bankruptcy
proceeding), “only the trustee has standing to prosecute or
8
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 (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 (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 (1986). The Court must draw all
reasonable inferences in favor of the nonmoving party. Id. at
587.
defend a claim belonging to the estate.” In re DiSalvo, 219 F.3d
1035, 1039 (9th Cir. 2000). Thus, the bankruptcy trustee in the
Sea Hawaii Rafting bankruptcy case properly appeared before this
Court at the hearing on the instant Motion. With respect to
Chapter 13 reorganization proceedings (like Defendant Henry’s
bankruptcy proceeding), however, the same cannot be said; in
those cases “the debtor has express authority to sue and be
sued.” Id. Thus, counsel for Defendant Henry may continue to
represent him in the instant litigation, notwithstanding the
ongoing Chapter 13 proceeding.
9
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. “[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 (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
I.
Preliminary Issues Arising Out of the Ongoing Bankruptcy
Proceedings
As an initial matter, the Court must determine the
extent to which it may proceed in the instant litigation, in
light of the ongoing bankruptcy proceedings. First, as to
10
Defendant Henry, the bankruptcy court lifted the automatic stay
to allow the Court to “value to its conclusion” Barnes’s claims
against him. (Doc. No. 155.) The Court therefore concludes that
it may proceed in analyzing the underlying issues of liability as
to Defendant Henry.
As to Defendant Sea Hawaii Rafting, the bankruptcy
court lifted the automatic stay to permit this Court to
“adjudicate the validity, extent, amount, and date of perfection
of any maritime lien claim by Chad Barnes against the assets of
the estate in bankruptcy.”9/ (Doc. No. 182, Ex. B.) Thus, the
9/
In a separate order adjudicating the Bankruptcy Trustee’s
Objection to Barnes’s “Notice of Maritime Lien” in the Sea Hawaii
bankruptcy proceeding, the bankruptcy judge ruled that, because
Barnes had failed to file any opposition to the Objection or
otherwise provide evidence of his claim, any unsecured
prepetition claim of Barnes’s is “disallowed in its entirety.”
(Doc. No. 182, Ex. A.) The bankruptcy court further found that
Barnes’s claim for maintenance and cure is a prepetition claim
because it arises out of a prepetition incident, even though his
damages may continue to accrue post-petition. (Id.) Barnes did
not appeal the ruling. In a minute order issued on December 4,
2015, this Court informed the parties that it is “constrained to
proceed in conformance with the bankruptcy judge’s rulings” as to
these matters. (Doc. No. 187); see In re Millenium Seacarriers,
Inc., 419 F.3d 83, 94 (2d Cir. 2005) (noting that “the doctrine
of custodia legis has typically been invoked to resolve [the]
apparent conflict between bankruptcy proceedings and admiralty
actions in rem,” and that under that doctrine, “the court that
first secures custody of the property administers the
property.”). The Court notes that, during the hearing on the
instant Motion, counsel for Barnes asserted that he wished to
bring an interlocutory appeal; however, it is unclear which
particular order or decision he wishes to appeal. It appears he
may have been referring to an appeal from the bankruptcy court’s
ruling that his claim for maintenance and cure is a prepetition
claim. If that is the case, Barnes should have brought any such
appeal in the bankruptcy court. To the extent Barnes is seeking
11
Court must as an initial matter determine the extent to which
Barnes has a valid, perfected maritime lien.
In general, maritime liens exist to keep ships moving
in commerce, while preventing them from sailing away from the
debts they incur. Ventura Packers, Inc. v. F/V JEANINE KATHLEEN,
305 F.3d 913, 919 (9th Cir. 2002). The theoretical basis for the
maritime lien rests on the legal fiction that the ship itself
caused the loss and may be called into court to make good. Id.
Maritime liens arise at the time that the debt arises. Governor
and Co. of Bank of Scotland v. Sabay, 211 F.3d 261, 267-68 (5th
Cir. 2000) (“A maritime lien arises from the moment of the
service or occurrence that provides its basis.”). Thus, under the
general maritime law, a seaman injured in the service of a vessel
is entitled to recover maintenance and cure and other damages,
and has a priority maritime lien on the vessel.10/ See The
Imperator, 288 F. 372, 373 (5th Cir. 1923); Associated Metals and
Minerals Corp. v. Alexander’s Unity M/V, 41 F.3d 1007, 1011-12
an interlocutory appeal in the litigation before this Court, he
should do so by filing an appropriate motion.
10/
The Court notes, however, that claims arising under the
Jones Act, rather than the general maritime law, do not create a
maritime lien. Plamals v. The Pinar Del Rio, 277 U.S. 151, 155-57
(1928); see also Johnson v. Venezuelan Line S. S. Co., 314 F.
Supp. 1403, 1406 (E.D. La. 1970) (“The Jones Act does not support
an in rem action because it does not create a maritime lien.”).
Thus, in the instant suit, to the extent Barnes has a maritime
lien, it only arises out of his maintenance and cure and
unseaworthiness claims, and not out of his Jones Act negligence
and negligence per se claims against the in personam Defendants.
12
(5th Cir. 1995); Leger v. Offshore Staffing Servs. of Acadania,
Civ. No. 11-1539, 2012 WL 525477, at *3 (W.D. La. Feb. 10, 2012)
report and recommendation adopted sub nom. Leger v. Offshore
Staffing Servs. of Acadiana, Civ. No. 11-1539, 2012 WL 524119
(W.D. La. Feb. 15, 2012). A maritime lien grants the creditor the
right to seize the vessel, have it sold, and be paid from the
proceeds of the sale. Equilease Corp. v. M/V SAMPSON, 793 F.2d
598, 602 (5th Cir. 1986). This lien follows the vessel, even when
it is sold, and remains enforceable against it in rem. Id.; see
also St. Paul Fire & Marine Ins. Co. v. Chau Van Kha, Civ. No.
05-5059, 2006 WL 2513422, at *3 (E.D. La. Aug. 28, 2006).
Thus, maritime liens are enforced via an in rem action
against the vessel itself. Admiralty Supplemental Rule C(2)(a) of
the Federal Rules of Civil Procedure provides that when a party
pursues an in rem action to enforce a maritime lien, the
complaint for such an action must be verified. United States v.
Argent Chem. Labs., Inc., 93 F.3d 572, 574 (9th Cir. 1996)
(“Under the Supplemental Rules for Certain Admiralty and Maritime
Claims ..., an in rem action begins with a complaint that must
‘be verified on oath or solemn affirmation’ and that must
‘describe with reasonable particularity the property that is the
subject of the action.’”) (quoting Supplemental Rule C(2)).
Absent verification, no lien may attach and the court lacks in
rem jurisdiction. See Madeja v. Olympic Packers, LLC, 310 F.3d
13
628, 637 (9th Cir. 2002) (“[C]ontrolling precedent dictates that
Appellants’ failure to verify their complaint deprived the
district court of in rem jurisdiction.”); see also Madeja v.
Olympic Packer, LLC, 155 F. Supp. 2d 1183, 1211 (D. Haw. 2001),
aff’d 310 F.3d 628 (9th Cir. 2002) (“The failure to verify a
claim will result in the denial of the maritime lien.”); Goodman
v. 1973 26 Foot Trojan Vessel, 859 F.2d 71, 74 (8th Cir. 1988)
(requiring dismissal of in rem action for failure to file an
affidavit verifying claims, and to serve and arrest the vessel);
Amstar Corp. v. M/V Alexandros T., 431 F. Supp. 328, 334 (D. Md.
1977) (“Both Supplemental Rule B(1) and Supplemental Rule C(2)
require that an action of this sort be instituted by means of a
verified complaint.”), aff’d, 664 F.2d 904 (4th Cir. 1981)).
Here, it appears Barnes failed to file a valid verified
complaint such that the maritime lien may attach and this Court
may exercise in rem jurisdiction over the vessel. Barnes filed
his First Amended Complaint on May 21, 2014 without any
verification.11/ (Doc. No. 91.) Over a year later, on July 23,
2015, Barnes filed an “Affidavit of Verification of First Amended
Complaint.” (Doc. No. 159.) This document did not, however,
11/
It is well-settled law in this circuit that an amended
complaint “supersedes the original, the latter being treated
thereafter as non-existent.” Lacey v. Maricopa County, 693 F.3d
896, 925 (9th Cir. 2012) (citing cases). It is therefore of no
import to the Court’s analysis that Barnes’s original complaint
was verified.
14
actually contain an affidavit of verification. Several months
later, on December 1, 2015, Barnes filed his “Errata” to the
verification, this time including a signed affidavit by Barnes.
(Doc. No. 184.) The notary’s signature on the affidavit stated,
however, that the signed document had only one page, indicating
that the First Amended Complaint had not been attached to the
affidavit at the time it was signed. (See id.) Therefore, on
December 10, 2015, Barnes filed his “First Amended verification
of First Amended Complaint,” in which he included another
affidavit of verification signed by Barnes, this time referencing
the correct number of pages included in the Complaint as an
attachment. (Doc. No. 191.)
Notwithstanding Barnes’s many attempts to verify his
First Amended Complaint after the fact, he can point to no
authority (and the Court can find none) to support the notion
that, under the facts of this case, a complaint may be validly
verified at any time after its filing.12/ Barnes neither sought
12/
Indeed, Barnes’s successive attempts at verification very
likely violated one or both of the automatic bankruptcy stays in
effect at the time. While the bankruptcy court had lifted the
stay as to the Henry bankruptcy proceeding (for this Court to
“value to its conclusion the claim of [Barnes] arising” from this
litigation, but leaving the stay in place with regard to the M/V
Tehani, “which will remain in the Bankruptcy Estate.”) at the
time Barnes filed his attempts at verification, the stay had not
been lifted as to the Sea Hawaii Rafting bankruptcy proceeding.
Moreover, even when the bankruptcy court did lift that stay, it
did so only partially, and expressly left the stay in place as to
any action by Barnes to perfect or enforce any lien he may have.
Thus, Barnes’s verification filings violated the stay in the Sea
15
nor received permission from the Court under the Federal Rules of
Civil Procedure to file a third amended complaint, or to
supplement the current filing with the verification affidavits.
Indeed, by the time of Barnes’s first attempt at verification (on
July 23, 2015), the deadline for filing amended pleadings had
long since passed under this Court’s Second Amended Rule 16
Scheduling Order. (See Doc. No. 96.) The Court must therefore
conclude that Barnes has failed to file a valid verified
complaint, as required by the Admiralty Rules. Thus, as discussed
above, this Court lacks in rem jurisdiction over the vessel. See,
e.g., Madeja, 310 F.3d at 637.
Barnes argues, however, that this Court may
nevertheless exercise jurisdiction over the vessel because it has
waived any objection to jurisdiction by filing an Answer (among
other filings). Barnes is correct that, generally, a vessel may
consent to jurisdiction in rem by appearing in the action and
failing to raise the defense of lack of jurisdiction over the
party in a timely fashion. United States v. Republic Marine,
Inc., 829 F.2d 1399, 1402 (7th Cir. 1987); see also Cactus Pipe
and Supply Co. v. M/V Montmartre, 756 F.2d 1103, 1107-11 (5th
Cir. 1985) (holding that such a waiver occurred).
Hawaii Rafting bankruptcy proceeding, and are therefore void. See
11 U.S.C. § 362; In re Gruntz, 202 F.3d 1074, 1082 (9th Cir.
2000) (“[A]ctions taken in violation of the automatic stay are
void.”).
16
The case law is somewhat unclear, however, as to
whether a vessel may waive the verification requirement, or
whether waiver may only be applied to excuse the absence of an
arrest or service of process upon the vessel. Compare Garcia v.
M/V Kubbar, 4 F. Supp. 2d 99, 108-09 (N.D. N.Y. 1998) (“In cases
allowing a waiver of objection to in rem jurisdiction, the waiver
is applied only to excuse the absence of an arrest or service of
process upon the vessel.”) with Pizani v. M/V Cotton Blossom, 669
F.2d 1084, 1089-90 (5th Cir. 1982) (implying without holding that
a party may waive the verification requirement). The Court need
not decide the issue of whether a party may waive the
jurisdictional verification requirement here, however, as
Defendants did, in fact, object to in rem jurisdiction in their
Answer to the First Amended Complaint. (See Answer (Doc. No. 107)
¶ 8 (denying (except to admit that the vessel is registered and
located in the State of Hawaii) the allegations contained in
paragraph eight of the First Amended Complaint, in which Barnes
alleges that “[u]pon information and belief the vessel is in this
district and subject to the IN REM jurisdiction of this
court.”).) The Court therefore rejects Barnes’s argument that the
M/V Tehani waived any objection to this Court’s exercise of in
rem jurisdiction.
In sum, because the Court finds that Barnes failed to
verify his First Amended Complaint, it must conclude that this
17
Court is without in rem jurisdiction over the vessel, and no
maritime lien may attach to the M/V Tehani. See Madeja, 310 F.3d
at 637 (finding that the district court correctly concluded that,
because certain claims were not verified, “no lien attached to
the [vessel], in rem.”). The Court therefore DISMISSES for lack
of jurisdiction all claims against the M/V Tehani, and turns next
to an analysis of the instant Motion as to the remaining
Defendants.13/
II.
Barnes’s Summary Judgment Motion
Having found that it lacks in rem jurisdiction over the
Tehani, the Court turns next to Barnes’s Motion for Summary
Judgment as against the remaining defendants. In the instant
Motion, Barnes seeks summary judgment as to the claims in his
First Amended Complaint for unseaworthiness under general
maritime law (Count II), and negligence (Count I) and negligence
per se (Count XII) under the Jones Act. The Jones Act provides a
cause of action for “[a]ny seaman who shall suffer personal
injury in the course of his employment.” 46 U.S.C. § 30104.
Likewise, under general maritime law, a seaman injured by a
13/
The Court understands that, to some extent, the effect of
its rulings as against the in personam Defendants may be limited
by the rulings in bankruptcy court. Nevertheless, because Barnes
has raised an argument in his First Amended Complaint (that has
yet to be briefed by the parties) that the corporate veil should
be pierced such that Henry may be held personally liable for any
liability on the part of Sea Hawaii Rafting, the Court will
address Barnes’s Motion as to both remaining Defendants.
18
shipowner’s failure to provide a seaworthy vessel may sue the
shipowner for his harm. See, e.g., Ribitzki v. Canmar reading &
Bates, Ltd. Partnership, 111 F.3d 658, 664 (9th Cir. 1997).
There appears to be no dispute that Barnes was employed
as a seaman within the meaning of the Jones Act and under general
maritime law at the time he was injured. (See Pl.’s CSF ¶ 1;
Def.’s CSF ¶ 1.) Likewise, it appears the parties agree that Sea
Hawaii Rafting was the owner of the vessel and Barnes’s employer
for purposes of the Jones Act.14/ (See Def’s Supp. Memo (Doc. No.
167) at 2, 4 (asserting that Sea Hawaii Rafting was the legal
owner of the vessel and was Barnes’s employer at the time of the
accident, noting that his pay checks were drawn from Sea Hawaii
Rafting’s checking account); Pl.’s Supp. Memo (Doc. No. 164) at
4, 7 (stating that “SHR, as owner of the vessel and issuer of the
paychecks, is Barnes’ Jones Act employer . . ..”).)
The Ninth Circuit has held that there may be only one
employer for purposes of Jones Act liability. See Glynn v. Roy Al
Boat Mgmt. Corp., 57 F.3d 1495, 1500 (9th Cir. 1995), abrogated
on other grounds by Atlantic Sounding Co., Inc. v. Townsend, 557
U.S. 404 (2009). Because Sea Hawaii Rafting, rather than
Defendant Henry, is Barnes’s Jones Act employer and the owner of
the vessel, it appears Barnes may only bring his Jones Act
14/
Although, as noted above, Barnes argues that Henry may
nevertheless be held liable for the actions of Sea Hawaii Rafting
under a theory of piercing the corporate veil.
19
negligence claims and his unseaworthiness claim as against Sea
Hawaii Rafting. The Court therefore DENIES the instant Motion as
to Defendant Henry.15/ Accordingly, the Court proceeds to analyze
Barnes’s claims as against Sea Hawaii Rafting.16/
A.
Negligence Per Se (Count XII)
With the instant motion, Barnes seeks to establish that
Defendants may be held liable for per se negligence based upon
certain violations of Coast Guard safety regulations.
Specifically, Barnes seeks an order finding that Defendants
violated the Coast Guard’s regulations governing small passenger
vessels, and that they are therefore subject to per se liability
for Barnes’s injuries pursuant to Kernan v. American Dredging
Co., 355 U.S. 426 (1958). Defendants do not dispute that the
Coast Guard regulations at issue were applicable to the Tehani at
the time of the accident. (See generally Opp’n; Def.’s CSF.)
In Kernan, the United States Supreme Court held that,
under the Jones Act, a violation of a statute or Coast Guard
15/
The Court notes that it expresses no opinion here on the
issue of whether Henry may nevertheless be held liable for the
actions of the LLC under a theory of piercing the corporate veil.
16/
As noted above, the Court is aware that its rulings in
the instant suit may be limited to some extent by the rulings in
the bankruptcy court. As this case proceeds, the Court will need
further direction from the bankruptcy court as to the extent to
which this Court can determine ultimate liability as against the
remaining Defendants, particularly with respect to the Court’s
determination regarding whether the corporate veil should be
pierced and Henry should be held liable for any liability on the
part of Sea Hawaii Rafting.
20
regulation that causes the injury or death of any employee
creates liability “in the absence of any showing of negligence.”
355 U.S. at 431. 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)
(McDonald I). Any seaman who proves that his employer violated a
Coast Guard regulation is entitled to a finding of per se fault
so long as the violation played “any part, even the slightest, in
producing” the seaman’s injuries. Id. (internal quotation
omitted). Moreover, the seaman’s right to recovery is without
regard to his comparative fault, as long as the injury is
attributable to the violation. Fuszek v. Royal King Fisheries,
Inc., 98 F.3d 514, 517 (9th Cir. 1996); Best v. Pasha Hawaii
Transport Lines, LLC, Civ. No. 06-00634 DAE-KSC, 2009 WL 587202
at *4 (D. Haw. Mar. 6, 2009).
First, as to the alleged violation of Coast Guard
regulations, Barnes has introduced evidence that, at the time of
the incident, the Tehani did not have a flammable vapor detection
system as required by 46 C.F.R. § 182.460, and did not have a
mechanical ventilation exhaust system, as required by 46 C.F.R.
21
§ 182.480.17/ (Mot. at 9; Pl.’s CSF, Ex. B (Supp. Expert Witness
Report) at 4-6; Ex. C (Knutson Field Survey) at 2.) Defendants do
not dispute that the Coast Guard regulations are applicable to
the Tehani, nor do they appear to dispute that the Tehani lacked
17/
Among the exhibits Barnes has submitted in support of his
Motion, he includes a Coast Guard Investigator Statement Form
(Ex. E) and a Coast Guard Report of Investigation (Ex. G).
Defendants point out that, generally, Coast Guard reports such as
these are not admissible as evidence pursuant to 46 C.F.R.
§ 4.07-1(b), as stated in Huber v. United States, 838 F.2d 398,
402-03 (9th Cir. 1988). The Court notes, however, that there is
some question as to whether the Huber rule applies generally to
exclude all Coast Guard Reports where the government is not a
party to the litigation (as the Coast Guard was in Huber). See,
e.g., Complaint of Nautilus Motor Tanker Co., Ltd., 85 F.3d 105,
111-13 (3d Cir. 1996) (finding Coast Guard Report admissible as a
public record under Federal Rule of Evidence 803(8)); Puerto Rico
Ports Auth. v. M/V Manhattan Prince, 897 F.2d 1, 8 (1st Cir.
1990) (affirming district court’s admission of three conclusions
in a Coast Guard Report); Fox v. United States and Robert
Anderson, Civ. No. C–94–0941, slip op. at 4–8 (N.D. Cal. February
14, 1996) (Coast Guard report admissible under Rule 803(8) so
long as report meets trustworthiness standard of Beech Aircraft
Corp. v. Rainey, 488 U.S. 153 (1988)); Wright v. Daviesyndicate,
Inc., 1993 WL 246020, *8,*9 n. 10 (E.D. Pa. 1993) (conclusions
contained in Coast Guard Report admitted without comment);
Complaint of Kenneth I. Munyan, 143 F.R.D. 560, 565–66 (D.N.J.
1992) (conclusions and opinions in Coast Guard Report deemed
admissible under Rule 803(8)(C)); Taylor v. Bouchard, 1991 WL
107279, *4 (S.D.N.Y. 1991) (opinions and conclusions in Coast
Guard Report admitted); see also Windjammer Cruises, Inc. v.
Paradise Cruises, Ltd., Civ. No. 93-00190 ACK, 1993 WL 732431 at
*2 n.2 (D. Haw. June 8, 1993) (stating that a Coast Guard
Report’s admissibility must be considered in terms of whether its
absence would unduly prejudice its proponent, and finding no
prejudice where key witnesses, including those who prepared the
report, were available to testify). Even excluding the Coast
Guard Reports here, however, Barnes has still demonstrated
through other evidence, including the expert witness reports of
Dennis Smith (Exs. A & B), and the Field Survey conducted by Mark
Knutson of Offshore Marine Surveyors (Ex. C), that the Tehani was
in violation of the enumerated Coast Guard regulations at the
time of the accident.
22
a flammable vapor detection system and a mechanical ventilation
exhaust system. (See generally Opp’n; Def.’s CSF.) Rather, they
argue that the vessel had a valid Certificate of Inspection from
the Coast Guard at the time of the accident.18/ (Opp’n at 11;
Def.’s CSF ¶¶ 16, 19, Ex. A.)
With respect to the Certificate of Inspection, the
Court concludes that this document does not constitute evidence
of compliance with the requirements of 46 C.F.R. §§ 182.460 &
182.480 on the date of the accident. The Coast Guard’s own
regulations describe the Certificate of Inspection as a
descriptive document that “describes the vessel, the route(s)
that it may travel, the minimum manning requirements, the
survival and rescue craft carried, the minimum fire extinguishing
equipment and lifejackets required to be carried, the maximum
number of passengers,” and several other requirements. 46 C.F.R.
§ 176.103. The mere existence of a valid Certificate of
Inspection therefore does not in and of itself establish whether
18/
Defendants also argue without citing any authority that
Barnes cannot establish per se liability because the Coast Guard
did not ever actually charge Defendants with violating any
regulation. The Court is unable to locate any authority for the
proposition that negligence per se under Kernan requires proof of
issuance of a formal sanction from the Coast Guard. Rather, it
appears sufficient for a plaintiff to demonstrate that the vessel
in question was, in fact, in violation of Coast Guard
regulations, regardless of whether any formal citation was
actually issued.
23
the vessel was actually being operated in accordance with the
Coast Guard’s regulations and requirements.
Moreover, while the Certificate of Inspection does
indicate that the Tehani was subject to annual inspections, it
appears that the most recent inspection prior to the date of the
accident (on July 3, 2012) was conducted on December 6, 2011.
(Def.’s CSF, Ex. A at 4.) Thus, the Certificate of Inspection
does not itself demonstrate that the Tehani was in compliance
with all Coast Guard regulations on the date of the accident. As
such, the mere fact that the Tehani was operating pursuant to a
valid Certificate of Inspection does not refute Barnes’s evidence
demonstrating that the vessel was nevertheless in violation of
certain Coast Guard regulations at the time of the accident.
The Court therefore concludes that Barnes has
established that the Tehani was operating in violation of Coast
Guard regulations (namely, 46 C.F.R. §§ 182.460 & 182.480) at the
time of the accident. Accordingly, the Court turns next to the
issue of causation. Specifically, the Court must determine
whether the absence of a flammable vapor detection system and a
mechanical ventilation exhaust system, as required by the Coast
Guard regulations, played any part in producing Barnes’s alleged
injuries. See MacDonald I, 442 F.3d at 1200.
“The burden to establish legal causation under the
Jones Act is minimal.” Brooker v. Cleghorn, 907 F. Supp. 1406,
24
1413 (D. Haw. 1994). Indeed, causation is sufficiently
established if the employer’s violation of Coast Guard
regulations “played any part in producing the injury, no matter
how slight.” MacDonald I, 442 F.3d at 1203 (quoting Oglesby v. S.
Pac. Trans. Co., 6 F.3d 603, 609 (9th Cir. 1993)) (emphasis in
original). Here, Barnes has introduced evidence from his expert
that had the Tehani been equipped with the required mechanical
exhaust ventilation system and flammable vapor detection system,
“the explosion and fire would not have happened, or [Barnes would
have been] alerted to [the unsafe condition].” (Pl.’s CSF, Ex. B
at 5.) Moreover, the July 5, 2012 Coast Guard
Witness/Investigator Statement Form states that had the vapor
detector and mechanical exhaust systems been in place, “this
incident may have been avoided.” (Pl.’s CSF, Ex. E at 2.) Thus,
Barnes has demonstrated that the violations of the Coast Guard
regulations played at least some part in causing the explosion
and his claimed injuries.
Defendants have failed to produce any contrary evidence
as to causation; however, they assert that “the cause of the
incident was the leaky fuel line and Plaintiff’s failure to do
his duty as Captain to ensure the Vessel could be operated safely
by inspecting the Vessel before starting the engine.” (Opp’n at
11.) While it is true that the leaky fuel line contributed to the
accident, Barnes’s expert has testified that, had the flammable
25
vapor detection system been in place, Barnes might have been
alerted to the danger of the leak, and had the mechanical exhaust
ventilation system been in place, the explosion would not have
taken place at all. (Pl.’s CSF, Ex. B at 5.) Thus, Defendants’
claim regarding the leaky fuel line does not contradict Barnes’s
evidence that the explosion was caused at least in part by
Defendants’ failure to adhere to Coast Guard regulations. This is
sufficient to satisfy Barnes’s “minimal” burden in establishing
causation. See Brooker, 907 F. Supp. at 1413 (stating that “it
does not matter that the evidence points to other causes for the
injury,” so long as the employer’s negligence was a contributing
cause).
Defendants’ argument that Barnes cannot show causation
because he was the captain of the vessel at the time of the
accident and, thus, contributed to his injuries by failing to
properly inspect the vessel is likewise without merit. Even
assuming Barnes was acting as the captain of the vessel (which
Barnes disputes), in the context of a Jones Act per se negligence
claim premised on a violation of Coast Guard regulations, the
Ninth Circuit has made clear that a seaman whose injuries were
caused by a violation of a statute or safety regulation may
recover damages under the Jones Act without regard to any
comparative fault so long as his employer’s failure to comply
with the Coast Guard regulations “played any part, ‘even the
26
slightest,’ in producing [his] injuries[.]” MacDonald I, 442
F.3dat 1203 (quoting Oglesby, 6 F.3d at 607); see also Best, 2009
WL 587202 at *4. Here, as discussed above, Barnes has established
that the Tehani was in violation of certain sections of the Coast
Guard regulations (46 C.F.R. §§ 182.460 & 182.480), and that
these violations contributed at least in part to the accident
that caused Barnes’s alleged injuries.19/ Thus, Jones Act per se
liability applies. The Court therefore concludes that there is no
question of fact as to Barnes’s per se negligence claim, and that
Sea Hawaii Rafting is liable under the Jones Act for Barnes’s
alleged injuries arising out of the accident. Accordingly, the
Court GRANTS Barnes’s Motion as against Sea Hawaii Rafting as to
Count XII of his First Amended Complaint.
B.
Jones Act Negligence (Count I)
Barnes also asserts a separate Jones Act negligence
claim based on Defendants’ alleged breach of the duty to provide
a reasonably safe workplace. (FAC ¶¶ 23-27.) To recover on this
claim, Barnes must establish that Sea Hawaii Rafting was
19/
Moreover, there can be no question that the regulations
Defendants violated (46 C.F.R. §§ 182.460 & 182.480) were
established for the express purpose of protecting the safety of a
class of individuals to which Barnes belongs (those operating
small passenger vessels), and preventing accidents exactly like
the one here. Indeed, the Coast Guard regulations state
specifically that the intent of Part 182 of the Coast Guard
Regulations is “to afford adequate protection from causing fire,
explosion, machinery failure, and personnel injury.” 46 C.F.R. §
182.100.
27
negligent, and that this negligence “was a cause, however slight,
of [Barnes’s] injuries.” Ribitzki v. Canmer Reading & Bates, Ltd.
Partnership, 111 F.3d 658, 662 (9th Cir. 1997), as amended on
denial of reh’g and reh’g en banc (June 5, 1997), amended on
reh’g en banc sub nom. Ribitzki v. Canmar Reading & Bates, Ltd.,
1997 WL 34580081 (9th Cir. June 5, 1997). The “quantum of
evidence necessary to support a finding of Jones Act negligence
is less than that required for common law negligence . . . and
even the slightest negligence is sufficient to sustain a finding
of liability.” Id. (quoting Havens v. F/T Polar Mist, 996 F.2d
215, 218 (9th Cir. 1993)). The elements of a Jones Act negligence
claim are duty, breach, notice, and causation. Id.
As to the issue of duty, a shipowner has a duty to use
reasonable care in furnishing his employees with a safe place to
work. Id. Here, it is undisputed that Barnes was a seaman
employed by Sea Hawaii Rafting at the time of the accident. Thus,
the first element is satisfied.
As to the issue of whether Sea Hawaii Rafting breached
its duty to provide Barnes with a safe work environment, Dennis
Smith, Barnes’s expert, has stated that the Tehani was an unsafe
place to work because “the vessel owner failed to properly
maintain and care for the below deck enclosed spaces and
mechanical equipment, [and] failed to comply with regulations
regarding proper safety equipment.” (Pl.’s CSF, Ex. B at 5.) As
28
to the issue of notice, “[a]n employer is only liable under the
Jones Act if the employer or its agents either knew or should
have known of the dangerous condition.” Ribitzki, 111 F.3d at
663. Mr. Smith states that Defendant Henry20/ “knew that the
working environment on the Tehani was unsafe because he was on
notice as to the lack of proper maintenance from numerous Coast
Guard Inspections.”21/ (Pl.’s CSF, Ex. B at 6.) Indeed, the Coast
Guard’s Witness/Investigator Statement Form indicates that the
vessel had a “poor maintenance record[,]” and that “[a] review of
the vessel[‘]s Coast Guard Inspection reports [] shows a lack of
regulatory compliance at every annual inspection since the
vessel[‘]s original certification in 2005.” (Pl.’s CSF, Ex. E at
2.) Moreover, when Defendant Henry purchased the vessel it was
delivered to him from the factory without a fuel tank or fuel
20/
It is well settled that knowledge of an agent is
ordinarily imputed to the principal. See Restatement (Second)
Agency § 272; see also In re Signal Int’l, LLC, 579 F.3d 478, 496
(5th Cir. 2009) (“A corporation is charged with the knowledge of
any of its managing agents who have authority over the sphere of
activities in question.” (internal quotation marks and citation
omitted)). Thus, here, Henry’s knowledge is imputed to Sea Hawaii
Rafting, as Henry was the registered agent and sole owner and
manager of the LLC. (See Pl.’s CSF, Ex. I.)
21/
The Court notes that Mr. Smith does not, however, attach
copies of any of the “numerous Coast Guard Inspections” that
would have put Defendants on notice of the lack of proper
maintenance. It appears that this statement in the expert report
is simply based upon Mr. Smith’s review of a July 5, 2012 Coast
Guard Witness/Investigator Statement Form. In light of the lack
of support provided for Mr. Smith’s statements, the Court places
little weight on his report.
29
delivery system; he had these systems designed and installed
after the vessel arrived in Hawaii. (Pl.’s CSF, Ex. A at 3.)
Thus, he was clearly aware that the vessel lacked the required
vapor detector and mechanical exhaust systems at the time of the
accident. Finally, as discussed above, Barnes’s expert states in
his Supplemental Report that the accident would not have occurred
had Defendants ensured that the necessary safety equipment was
installed on the Tehani. (Pl.’s CSF, Ex. B at 5.) Thus, it
appears Barnes has introduced evidence sufficient to establish
Jones Act negligence.
Defendants argue, however, that the primary duty rule
precludes Jones Act negligence liability here. Under the primary
duty rule, “a seaman-employee may not recover from his employer
for injuries caused by his own failure to perform a duty imposed
on him by his employment.” Northern Queen Inc. v. Kinnear, 298
F.3d 1090, 1095 (9th Cir. 2002) (quoting California Home Brands,
Inc. v. Ferreira, 871 F.2d 830, 836–837 (9th Cir. 1989)).
Defendants argue that Barnes was acting as the captain
of the Tehani on the day of the accident and, as such, was
responsible for inspecting the vessel to ensure its safety. Thus,
Defendants contend that Barnes is precluded from establishing
liability under the primary duty rule. As an initial matter, it
appears that there is a question of fact as to whether Barnes or
Defendant Henry was acting as the captain of the Tehani on the
30
day of the accident. Barnes states that Henry was acting as the
captain and Barnes was serving as the crew member, and that Henry
would customarily act as captain whenever he was present on the
Tehani. (Pl.’s CSF, Ex. J ¶¶ 5-8.) Henry states, on the other
hand, that Barnes was a licensed captain and was assigned to
captain the Tehani on the day of the accident. (Def.’s CSF, Henry
Decl. ¶ 5.) The Coast Guard Report on the incident refers to
Barnes as a “crewmember” on a number of occasions, while also
referring to him as the “Captain” in other places. (See Pl.’s
CSF, Ex. G at 2-3, 12.) Absent these conflicting statements,
there is no other evidence as to who was actually serving as
captain of the Tehani on the day of the accident. The Court
therefore concludes that a question of fact exists as to whether
Barnes was acting as captain at the time of the accident.
In light of the question of fact as to whether Barnes
was acting as captain at the time of the accident, the Court must
likewise conclude that questions of fact exist to preclude a
ruling on the applicability of the primary duty rule. In order
for an employer to be relieved of liability under the primary
duty rule,
(1) the seaman must have consciously assumed a
duty as a term of employment; (2) the dangerous
condition that injured the seaman must have been
created by the seaman or could have been
controlled or eliminated solely by the seaman in
the proper exercise of his or her employment
duties; and (3) the seaman must have knowingly
31
violated a duty consciously assumed as a condition
of employment.
Northern Queen, 298 F.3d at 1096.
Here, as to the missing fuel ventilation equipment,
other than Defendant Henry’s vague statement that, “[a]s Captain,
it was Plaintiff’s responsibility to inspect the vessel and
ensure it was operating properly,” (Def.’s CSF ¶ 7,) Defendants
have introduced no evidence that Barnes in fact “consciously
assumed” a duty to ensure that all required safety equipment was
installed on the Tehani. Indeed, it is hard to believe that
Barnes would have primary responsibility or control over the
installation of equipment such as a flammable vapor detection
system and mechanical exhaust ventilation system when he had no
ownership interest in the Tehani, (see Def.’s CSF, Ex. A,) and
there is no evidence otherwise suggesting that he played any part
whatsoever in the purchase, installation, or maintenance of this
type of machinery on the vessel.
Barnes’s expert stated in his report, however, that the
fuel that leaked into the bilge, causing the explosion, leaked
out because of the missing fuel gauge sender bolt. (Pl.’s CSF,
Ex. B at 2.) Defendant Henry states in his declaration that “[a]s
Captain, Plaintiff was responsible for inspecting the Vessel to
ensure she could be operated safely,” including by checking the
bilge, fuel tanks, and fuel lines. (Def.’s CSF, Henry Decl. ¶¶ 89.) Thus, there is at least a question of fact as to whether,
32
assuming Barnes was acting as captain at the time of the
accident, his failure to properly inspect the vessel and discover
the missing bolt may have contributed to the cause of his
injuries. The Court therefore concludes that questions of fact
preclude a conclusion as a matter of law that Barnes’s injuries
were not “caused by his own failure to perform a duty imposed by
him by his employment.” Northern Queen, 298 F.3d at 1095.
The Court notes that Defendants also argue - again
based on the contention that Barnes was the acting captain at the
time of the accident and had a duty to inspect the fuel lines and
bilge - that, even if this Court finds Sea Hawaii Rafting was
negligent, any damages awarded to Barnes must be reduced because
of Barnes’s contributory negligence. Generally, comparative
negligence is applicable in a Jones Act action “when a seaman is
injured if ‘alternative courses of action are available to the
injured party, and he chooses the unreasonable course.’”
Simeonoff v. Hiner, 249 F.3d 883, 888-89 (9th Cir. 2001). “Courts
apply the doctrine of comparative fault to encourage reasonable
care by seamen while at the same time placing a high degree of
responsibility on owners for the seaworthiness and safety of
their vessels and appliances.” Id. at 889. Importantly, however,
a defense of comparative negligence is not available where the
seaman’s injuries are attributable, at least in part, to the
vessel’s being in violation of Coast Guard safety regulations
33
designed to protect the class of individuals to which the seaman
belongs. See Fuszek, 98 F.3d at 517; Brooker, 907 F. Supp. at
1409–11.
As discussed above, Barnes has introduced undisputed
evidence that, at the time of the incident, the Tehani did not
have a flammable vapor detection system as required by 46 C.F.R.
§ 182.460, and did not have a mechanical ventilation exhaust
system, as required by 46 C.F.R. § 182.480. (Mot. at 9; Pl.’s
CSF, Ex. B (Supp. Expert Witness Report) at 4-6; Ex. C (Knutson
Field Survey) at 2.) He has also demonstrated that his alleged
injuries are attributable, at least in part, to the violation of
these Coast Guard safety regulations. (Pl.’s CSF, Ex. B (Supp.
Expert Witness Report) at 5.) Finally, it is clear that the Coast
Guard regulations at issue were intended to prevent the very
injuries that Barnes alleges he suffered. Indeed, the Coast Guard
regulations state specifically that the intent of Part 182 of the
Coast Guard Regulations is “to afford adequate protection from
causing fire, explosion, machinery failure, and personnel
injury.” 46 C.F.R. § 182.100. Thus, a defense of comparative
negligence is not available to Defendants in this case. See,
e.g., Fuszek, 98 F.3d at 517 (concluding that the district court
erred by reducing the plaintiff’s damage award for comparative
negligence where “[t]he ship was in unexcused violation of a
Coast Guard safety regulation that was designed not only to
34
protect members of the class to which [the plaintiff] belonged,
but also to prevent the type of injury he sustained.”).
In sum, because the Court concludes that questions of
fact exist as to whether Barnes was the captain of the vessel at
the time of the accident and, thus, whether the primary duty rule
applies here, the Court DENIES Barnes’s Motion as to Jones Act
negligence (Count I).
C.
Unseaworthiness (Count II)
Finally, Barnes also seeks summary judgment as to his
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). “A shipowner has an absolute duty to furnish a seaworthy
ship.” Ribitzki, 111 F.3d at 664 (citing Mitchell v. Trawler
Racer, Inc., 362 U.S. 539, 549 (1960)).
To establish a claim for unseaworthiness, a plaintiff
must establish: “(1) the warranty of seaworthiness extended to
him and his duties;22/ (2) his injury was caused by a piece of the
ship’s equipment or an appurtenant appliance; (3) the equipment
22/
As discussed above, it appears to be undisputed that
Barnes is a Jones Act seaman; thus, he is entitled to a warranty
of seaworthiness.
35
used was not reasonably fit for its intended use; and (4) the
unseaworthy condition proximately caused his injuries.” Id. at
664-65. Importantly, the shipowner’s actual or constructive
knowledge of an unseaworthy condition is not essential to
liability. Id. at 664.
Here, Barnes argues that the Tehani was unseaworthy
because the missing flammable vapor detection system, mechanical
ventilation exhaust system, and fuel tank sender bolt made the
fuel delivery system not reasonably fit for its intended use.
(See Mot. at 15.) The “existence of a defective condition,
however temporary, on a physical part of the ship” may constitute
an unseaworthy condition. Ribitzki, 111 F.3d at 664 (citing
Usner, 400 U.S. at 499). Barnes has introduced expert testimony
that “due to the lack of a flammable vapor detection system, a
mechanical exhaust ventilation system, and the missing fuel gauge
sender bolt, the Tehani was not reasonably fit for its intended
use.” (Pl.’s CSF, Ex. B at 4.) Defendants do not appear to
dispute that the fuel bolt was, in fact, missing from the fuel
gauge sender at the time of the accident, which allowed fuel to
leak out of the resulting hole. (Def.’s CSF ¶ 15.) Nor do they
dispute that the Tehani lacked a flammable vapor detection system
and a mechanical ventilation exhaust system. Barnes has therefore
established that the fuel delivery system on the Tehani was not
reasonably fit for its intended use at the time of the accident.
36
As to the issue of causation, in the context of a claim
for unseaworthiness, “[c]ausation is established by showing that
the unseaworthy condition was a substantial factor in causing the
injury.” Ribitzki, 111 F.3d at 665. Here, Defendants themselves
acknowledge that the missing fuel bolt “allowed fuel to leak out
of the resulting hole,” and that “fuel vapors under the
floorboards were ignited when Plaintiff started the engine.”
(Def.’s CSF ¶¶ 14-15.) Indeed, Defendants state in their
opposition to the Motion that “[t]he cause of the incident was
the leaky fuel line . . ..” (Opp’n at 11.) It therefore appears
there is no dispute that the missing fuel ventilation systems and
the missing bolt and resultant leaking fuel were substantial
factors in causing Barnes’s alleged injuries.
Defendants argue again, however, that the primary duty
rule precludes Barnes’s recovery on his unseaworthiness claim
because his injuries were caused by his own breach of his
employment duties as captain. (Opp’n at 14.) As discussed above,
there is a factual dispute as to whether Barnes was acting as the
captain of the Tehani at the time of the accident. Moreover,
there is also a factual dispute as to whether, as captain, it was
his duty to inspect the vessel such that he would have discovered
the missing fuel sender bolt and resultant fuel leak. The Court
therefore concludes that questions of fact preclude a finding as
a matter of law as to whether the primary duty rule applies to
37
defeat Barnes’s unseaworthiness claim. Barnes’s Motion is
therefore DENIED as to Count II.
CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART AND
DENIES IN PART Plaintiff Barnes’s Motion for Summary Judgment as
to Unseaworthiness, Negligence Per Se, and Jones Act Negligence
(Doc. No. 108.) As to Count XII of the First Amended Complaint
(Barnes’s negligence per se claim), the Court GRANTS the Motion
as to Defendant Sea Hawaii Rafting, LLC, but DENIES it as to the
remaining Defendants. The Court DENIES the Motion as to Counts I
and II. In addition, the Court DISMISSES all claims against
Defendant M/V Tehani, in rem, for lack of jurisdiction.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 22, 2015
________________________________
Alan C. Kay
Senior United States District Judge
Barnes v. Sea Hawaii Rafting, et al., Civ. No. 13-00002 ACK-RLP, Order
Granting in Part and Denying in Part Plaintiff’s Motion for Summary Judgment
as to Unseaworthiness, Negligence Per Se, and Jones Act Negligence, and
Dismissing the M/V Tehani for Lack of Jurisdiction
38
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