Mount v. Blue Ocean Mariculture, LLC

Filing 111

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT re 50 - Signed by JUDGE ALAN C KAY on 11/23/2015. "For the foregoing reasons, the Court GRANTS Defendants' Motion for Summary Judgment. (Doc. No. 50. ) Because the Court concludes that the United States Coast Guard Commercial Diving Operations regulations do not apply to Defendants' Kampachi Vessels, the Court grants judgment in Defendants' favor as to Plaintiffs' claims for n egligence per se and unseaworthiness per se. All other claims in the Second Amended Complaint remain." (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

RICHARD MOUNT and ELLEN FROSCH,
Plaintiffs,
v.
KEAHOLE POINT FISH, LLC; BLUE
OCEAN MARICULTURE, LLC; FISH
FACTS, INC., in personum; M/V
KONA KAMPACHI I; and M/V/ KONA
KAMPACHI II, their Engines,
Tackle, Apparel, Furniture and
Appurtenances, etc., in rem,
Defendants.

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ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
For the following reasons, the Court hereby
GRANTS Defendants’ Motion for Summary Judgment. (Doc. No. 50.)
Because the Court concludes that the United States Coast Guard
Commercial Diving Operations regulations do not apply to
Defendants’ Kampachi Vessels, the Court grants judgment in
Defendants’ favor as to Plaintiffs’ claims for negligence per se
and unseaworthiness per se. All other claims in the Second
Amended Complaint remain.
FACTUAL BACKGROUND1/

1/

The facts as recited in this Order are for the purpose of
disposing of the current motion and are not to be construed as
findings of fact that the parties may rely on in future
proceedings.

This is an admiralty case arising out of injuries
Plaintiff Richard Mount suffered while working as a crew member
and lead diver for Defendant Keahole Point Fish, LLC (“Keahole
Fish”). (Def. CSF, Madsen Decl. ¶ 19; SAC ¶ 8.)
Defendant Blue Ocean Mariculture, LLC (“Blue Ocean”) is
an aquaculture company that raises Hawaiian Kampachi fish in
submersed net structures approximately one mile off the coast of
Kona, Hawaii. (Madsen Decl. ¶ 4.) In support of its business,
Blue Ocean operates the following vessels: the Kona Kampachi I
(“Kampachi I”), Official Number 1183797, and the Kona Kampachi II
(“Kampachi II”), Official Number 1198834 (together, “Kampachi
Vessels”). (Id. ¶ 3.)
Defendant Keahole Fish employs divers and other
employees to support Blue Ocean’s operations. (Id. ¶ 5.)
Plaintiff began working for Keahole Fish in January of 2010.2/
(Id. ¶ 19.) Plaintiff Mount asserts that he suffered an ear
injury on November 15, 2011, while working aboard the Kampachi I
and taking part in a diving operation staged from that vessel.
(SAC ¶ 14.) Specifically, a scuba regulator hose burst near his
left ear during the dive, causing his alleged injury. (Id.; Def.
CSF, Madsen Decl. ¶ 20; Def. CSF, Ex. H (“Report of Work-Related
Injury”).)

2/

Plaintiff also worked for Keahole Fish’s predecessor
company, Kona Blue, beginning in 2007. Keahole Fish hired him
after purchasing Kona Blue. (Madsen Decl. ¶ 19.)
2

Plaintiff also claims that on September 6, 2012, he
suffered an inguinal hernia while working underwater from the
Kampachi II, pushing a net “sweep wall” used by the divers to
confine fish to prepare them to be harvested. (SAC ¶¶ 16-23.)
Plaintiff asserts that he and a group of other divers were
pushing the sweep wall net, but at some point all of the other
divers had surfaced without Plaintiff’s knowledge. (Id. ¶¶ 1821.) Plaintiff continued pushing against the sweep wall net and
felt a sharp pain in his groin. (Id. ¶ 22.) Plaintiff continued
working until he reported the incident on January 7, 2013.
(Madsen Decl. ¶ 21; Def. CSF, Ex. I (“Report of Work-Related
Injury”).) Plaintiff was diagnosed with an inguinal hernia for
which he underwent surgery at Kaiser Permanente in Kona on
January 31, 2013. He continued to experience pain thereafter and,
on January 29, 2015, underwent a second surgery at the UCLA
Lichetenstein Amid Hernia Clinic. (Mot. at 4.) Plaintiff asserts
that he continues to suffer the negative impacts of the injuries
he suffered while working for Defendants. (SAC ¶¶ 51-52.)
PROCEDURAL BACKGROUND
On February 28, 2014, Plaintiffs Richard Mount and his
wife Ellen Frosch (together, “Plaintiffs”) filed their original
Complaint against Blue Ocean, in personum, and the M/V KONA
KAMPACHI I and M/V KONA KAMPACHI II, in rem. (Doc. No. 1.)
Plaintiffs subsequently filed a First Amended Complaint on May 2,

3

2014, adding as defendants Keahole Fish, and Fish Facts, Inc.
(all defendants collectively referred to as “Defendants”). (Doc.
No. 15.) In the First Amended Complaint, Plaintiffs brought the
following claims: (1) Jones Act Negligence as against all in
personum defendants; (2) Unseaworthiness as against Defendants
Blue Ocean, Fish Facts, and the Vessels; (3) Maintenance and Cure
as against Defendants Keahole Fish Point and the Vessels; and (4)
Loss of Consortium as against Defendants Blue Ocean, Fish Facts,
and the Vessels. On August 5, 2014, the parties stipulated to the
dismissal of Count III, Plaintiffs’ maintenance and cure claim.
(Doc. No. 29.)
On February 6, 2015, the parties stipulated to stay the
instant case for approximately three months to allow Plaintiff
Mount time to recover from a surgery he underwent on January 29,
2015.3/ (Doc. No. 38.) The stay was lifted on June 26, 2015, and
Defendants filed the instant Motion for Summary Judgment, along
with a concise statement of facts and numerous supporting
exhibits, on July 22, 2015. (Doc. Nos. 50 & 51.)
While the instant Motion was pending, Plaintiffs were
granted leave to file a Second Amended Complaint, re-alleging a
claim for Maintenance and Cure. (Doc. No. 78.) Plaintiffs
therefore filed their Second Amended Complaint on September 22,

3/

Pending at the time was a prior Motion for Summary
Judgment filed by Defendants, (doc. no. 35); however, that motion
was withdrawn when the parties stipulated to the stay.
4

2015, alleging the same four counts as alleged in the First
Amended Complaint (including the Maintenance and Cure claim that
had previously been dismissed via the parties’ stipulation).
(Doc. No. 80.)
Plaintiffs filed their memorandum in opposition to the
instant Motion, along with a concise statement of facts and
several exhibits, on October 9, 2015.4/ (Doc. Nos. 88 & 89.)
Defendants filed their reply on October 19, 2015. (Doc. No. 93.)
A hearing on the Motion5/ was held on November 2,
2015.6/
STANDARD
Summary judgment is appropriate when a “movant shows

4/

In their concise statement of facts, Plaintiffs object to
the Expert Report of Defendants’ expert, Mr. Sharpe, “to the
extent Mr. Sharpe offers legal conclusions[.]” (Pl. CSF ¶¶ 5-6,
10-11.) Because it is arguable that Mr. Sharpe’s expert opinion
reaches the ultimate issues and offers legal conclusions, in an
abundance of caution the Court will not consider it in ruling on
the instant Motion. See Mukhtar v. Cal. State Univ., Hayward, 299
F.3d 1053, 1065 n.10 (9th Cir. 2002)(“[A]n expert witness cannot
give an opinion as to her legal conclusion, i.e., an opinion on
an ultimate issue of law.”), overruled on other grounds by Estate
of Barabin v. AstenJohnson, Inc., 740 F.3d 457 (9th Cir.) cert.
denied, 135 S. Ct. 55, 190 L. Ed. 2d 30 (2014).
5/

Also pending before the Court are Defendants’ Motion to
Dismiss, filed on September 22, 2015, (doc. no. 81,) and Motion
for Summary Judgment, (doc. no. 85,) both of which are set for a
hearing on December 17, 2015.
6/

At the conclusion of the hearing, the Court instructed
the parties to file supplemental briefs addressing several
additional issues brought up during the hearing. The parties
timely filed their briefs on November 19, 2015. (Doc. Nos. 105 &
106.)
5

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.
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

6

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
In the instant Motion, Defendants seek summary judgment
as to the applicability of the United States Coast Guard (“USCG”)
diving regulations and, thus, the viability of Plaintiffs’ claims
for negligence per se and unseaworthiness per se based upon
alleged violations of those regulations, as set forth in Kernan
v. American Dredging Co., 355 U.S. 426 (1958).7/
In Kernan, the United States Supreme Court held that
the strict liability principles set forth in the Federal
Employer’s Liability Act (“FELA”), 45 U.S.C. §§ 51-60, apply in

7/

As Plaintiffs note in their opposition, they appear to
have also raised negligence and unseaworthiness claims not based
upon a per se theory; however, those claims are not at issue in
the instant motion.
7

Jones Act cases,8/ and, as such, a violation of a statute or
Coast Guard regulation that causes the injury or death of any
employee creates liability “in the absence of any showing of
negligence.” 355 U.S. 426, 431 (1958). Thus, under the Jones Act,
“the common-law concepts of foreseeability and risk of harm are
not applicable where the employer violates a federal statute or a
Coast Guard regulation, if such conduct in whole or in part
caused injury.” MacDonald v. Kahikolu Ltd., 442 F.3d 1199, 1203
(9th Cir. 2006).
Here, Plaintiffs assert that Defendants were subject to
and violated the Coast Guard’s Commercial Diving Operations
regulations (codified at 46 C.F.R. § 197.200 et seq.) and are
therefore subject to per se liability for Plaintiffs’ alleged
harm. Defendants counter that the Kampachi Vessels are
uninspected fishing vessels not subject to the Coast Guard
regulations and, thus, they cannot be held per se liable based
upon those regulations. The Court therefore turns to an
examination of the applicability of the Coast Guard regulations
to the Kampachi Vessels.
The Coast Guard Commercial Diving Operations
regulations apply on their face to any “commercial diving
operations taking place” from, inter alia, “vessels required to

8/

The parties do not appear to dispute that Plaintiff Mount
was a seaman injured during the course of his employment as such
for purposes of Jones Act liability. (See generally Mot.; Opp’n.)
8

have a certificate of inspection issued by the Coast Guard.” 46
C.F.R. § 197.202. Defendants assert that the Kampachi Vessels are
fishing vessels and fish tender vessels below a certain size and
weight and, as such, are not subject to inspection under 46
U.S.C. § 3301 because of applicable exemptions under 46 U.S.C. §
3302. (See generally Mot.) Plaintiffs do not appear to dispute
that the Kampachi Vessels are fishing and fish tender vessels, or
that those types of vessels are exempt from inspection; however,
Plaintiffs assert that the Kampachi Vessels may nevertheless also
be classified as towing vessels under 46 U.S.C. § 3301, such that
they are, in fact, subject to Coast Guard inspection.9/ (Opp’n at
7-9.) The instant dispute therefore turns on whether the Kampachi
Vessels may be classified as towing vessels for purposes of the
USCG regulations.
A “towing vessel” is defined by the Coast Guard
Regulations as “a commercial vessel engaged in or intending to
engage in the service of pulling, pushing, or hauling along side,
or any combination of pulling, pushing, or hauling along side.”
46 U.S.C. § 2101(40). Noting that this definition’s use of the
phrase “in the service of” may not be interpreted as mere
surplusage, a Vice Commandant of the Coast Guard, in examining
this language for purposes of an administrative proceeding,

9/

Contrary to Plaintiffs’ assertions, Defendants do not
argue that vessels cannot fall under more than one classification
in 46 U.S.C. § 3301. (Reply at 2.)
9

concluded that the definition encompasses all “commercial vessels
in the business of towing.” U.S. Coast Guard v. License No.
659384 and Merchant Mariner’s Doc. No. XXX-XX-XXXX-D1 Issued to:
Michael L. Williams, Appellant, Appeal Decision 2566, 1995 WL
17010116, at *5 (USCG May 2, 1995), aff’d, NTSB Order No. EM-181,
1996 WL 30281 (Jan. 4, 1996) (finding that a vessel “returning to
Seattle from a towing job in Cherry Point, crewed appropriately
for towing, and operated by a towing company” was “in the service
of towing” and thus a towing vessel for purposes of USCG
regulations).
Here, it does not appear that the Kampachi Vessels are
engaged in the business, or “service of pulling, pushing, or
hauling along side,” as required by the statute. See id. Rather,
it appears the Kampachi Vessels are engaged in the business of
commercial fish farming. First, the physical characteristics of
the vessels and their customary use support this conclusion. The
vessels are outfitted for fishing, rather than towing operations.
The Kampachi Vessels are former U.S. Navy or Army Landing Craft
Mechanized 8 vessels refitted for fish farm tending. (Madsen
Decl. ¶ 8; Pl. CSF ¶ 1.) Thus, they are equipped with fish
harvesting pumps, cranes, bins to hold fish, scuba gear, fish
feeding pumps, fish peroxide treatment pumps, and air compressor
and associated hoses to lift the fish pens to the surface.
(Madsen Decl., Exs. A, B, E; Pl. CSF ¶ 8.) The vessels make use

10

of this equipment to (1) transport fish from hatcheries to
offshore pens, or from existing pens to new ones; (2) carry fish
feed and other products from the harbor to the fish pens; (3)
clean and move fish pens; (4) feed, clean, and tend to the fish;
and (5) harvest fish and transport the harvested fish to shore.
(Madsen Decl. ¶¶ 6, 15 & Ex. C.) The vessels do not engage in
commercial towing. (Madsen Decl. ¶ 14.) Thus, the equipment
aboard the Kampachi Vessels, as well as their apparent customary
use, indicate that they are not engaged in the business of
towing.
Moreover, the documentation issued by the USCG to the
Kampachi Vessels also supports the conclusion that they are
fishing, rather than towing, vessels. The Kampachi I’s
Certificate of Documentation,10/ issued by the USCG’s National
Vessel Documentation Center (“NVDC”) states that the vessel’s
operational endorsements are fishery11/ and registry12/ only. (Def.
CSF, Madsen Decl. ¶ 11 & Ex. F.) Similarly, the Kampachi II’s

10/

The Certificate of Documentation is a document issued by
the Coast Guard indicating the service in which the vessel is
permitted to engage. There are five types of endorsements:
registry, coastwise, Great Lakes, fishery, and recreational. The
“coastwise” endorsement indicates that a vessel is permitted to
engage in dredging and towing. 46 C.F.R. § 19(a).
11/

A “fisheries” endorsement entitles a vessel to employment
in the fisheries. 46 C.F.R. § 67.21(a).
12/

A “registries” endorsement entitles a vessel to
employment in foreign trade. 46 C.F.R. § 67.17(a).
11

Certification of Documentation states that it also has
operational endorsements for fishery and registry only. (Madsen
Decl. ¶ 12 & Ex. G.) It is undisputed that neither vessel has a
coastwise endorsement, which would entitle them to be used in
towing. See 46 C.F.R. § 67.19(a). Indeed, were the Kampachi
Vessels to engage in towing without coastwise endorsements,
Defendants would be subject to monetary fines and possible
forfeiture of the vessels and their equipment. 46 U.S.C. § 12151;
46 C.F.R. § 67.142.
Defendants assert that the USCG, in a letter dated July
1, 2015,13/ confirmed, based upon Defendants’ description of the
vessels’ operation and the information contained in the USCG’s
Marine Information Safety and Law Enforcement database,14/ that

13/

Plaintiffs have objected to the admissibility of the
letter from the Coast Guard on the grounds that it contains
inadmissible hearsay; however, it appears the letter is
admissible as admissible hearsay under Federal Rule of Evidence
803(8) (public records). See Quiles v. Sikorsky Aircraft, 84 F.
Supp. 2d 154, 162 (D. Mass. 1999) (finding that “the Coast Guard
letter, here attached by plaintiff’s expert, is admissible as a
government document”); Mowery v. Mercury Marine, Div. of Bruswick
Corp., 773 F. Supp. 1012, 1015 n.6 (N.D. Ohio 1991) (same); see
also Lundquist v. Cont’l Cas. Co., 394 F. Supp. 2d 1230, 1243
(C.D. Cal. 2005) (“It is well established that a court may take
judicial notice of records and reports of administrative bodies,
such as notices and opinion letters issued [by them.]”
(alteration omitted)).
14/

The Court notes that it is not entirely clear what
specific information the Coast Guard was relying upon when it
issued the July 1, 2015 letter; it appears to be in response to a
letter from Blue Ocean, as well as a follow-up phone conversation
with Mr. Madsen. (Def. CSF, Madsen Decl., Ex. M.) Because of the
(continued...)
12

the Kampachi Vessels are “fish tender vessels15/ [and, a]s such,
they are not subject to inspection by the U.S. Coast Guard at
this time.” (Def. CSF, Madsen Decl., Ex. M.) And it is undisputed
that the Kampachi Vessels do not, in fact, have USCG Certificates
of Inspection. (Def. CSF ¶ 4; Pl. CSF ¶ 4.) Thus, the USCG
documentation for the Kampachi Vessels is also persuasive
evidence that they are not towing vessels subject to USCG
inspection.
Plaintiffs nevertheless argue that, because the
Kampachi Vessels have engaged in “substantial” towing activity,
they are properly categorized as towing vessels for purposes of
the Coast Guard regulations. (Opp’n at 12-13.) To support this
argument, Plaintiffs note that the Kampachi Vessels are regularly
used (1) to tow component parts of offshore fish cages between
the offshore farm site and land, (2) to assist in “cageflipping,” wherein they tow offshore cages into position; and (3)
to tow “transfer pens” used to move fish between offshore cages.
(Id.) Importantly, however, all of these activities are merely
incidental to the business of fish farming. See Gremillion v.

14/

(...continued)
lack of clarity as to the information regarding the vessels’
operations provided to the Coast Guard, the Court places no
weight on the aforementioned USCG letter.
15/

As “fish tender vessels,” the Kampachi Vessels are
entitled to commercially supply, store, refrigerate, or transport
fish and fish products from a fishing, fish processing, or fish
tender vessel. 46 U.S.C. § 2101(11c).
13

Gulf Coast Catering Co., 904 F.2d 290, 293 (5th Cir. 1990)
(stating that, in determining whether a craft qualifies as a
“vessel” for purposes of the Jones Act, “it is necessary to focus
upon the purpose for which the craft is constructed and the
business in which it is engaged,” and concluding that a work
platform was not a vessel because its movement across navigable
waters in the course of normal operations was “merely incidental
to the platform’s primary purpose” which was not transportation).
Plaintiffs also point to two incidents where the
Kampachi Vessels were used in a towing capacity in the aid of
others: (1) when they were used to aid in the retrieval of a
burst pipe belonging to the Natural Energy Laboratory of Hawaii
Authority (“NELHA”); and (2) when they aided a vessel disabled at
sea by towing it back into Honokohau Harbor. (Opp’n at 13.) As
was the case with the instances of equipment towing incidental to
the fish farming operation, the Court believes that these
instances of occasional Good Samaritan towing are simply
insufficient to reclassify these commercial fishing vessels into
towing vessels for purposes of the Coast Guard regulations.
Indeed, the Proposed Regulations promulgated by the
Coast Guard establishing the rules governing inspection of towing
vessels would expressly exclude from inspection “workboats that
do not engage in commercial towing for hire, but may
intermittently move a piece of equipment within a work site such

14

as a dredging or construction site; and towing vessels performing
assistance towing.” Inspecton of Towing Vessels, 76 Fed. Reg.
49976, 49979 (proposed Aug. 11, 2011). The Court notes, however,
that this rule has yet to become final and, therefore, is of no
force or effect; although, it does reflect that under the current
USCG proposal the towing activities the Kampachi Vessels
undertake, both incidental to the farming operations and when
providing occasional assistance to other vessels, do not suggest
that they are in the business of towing, or convert them into
towing vessels subject to Coast Guard inspection.16/
Finally, the Court notes that the fact that the
Kampachi Vessels are currently inspected and regulated by the
Occupational Safety and Health Administration (“OSHA”) also

16/

Plaintiffs also assert that this case is similar to Habel
v. Grove Farm Fish & Poi, LLC, in which this district court
concluded that the vessel at issue did qualify as a towing vessel
for purposes of the USCG Commercial Diving Operations
regulations. 855 F. Supp. 2d 1112, (D. Haw. 2012). In Habel, the
defendant, Grove Farm, was a fish farming operation located off
the coast of Ewa Beach, Oahu. Id. at 1114. The vessel at issue in
that case has a coastwise endorsement (although there is no
evidence as to whether the endorsement was in place at the time
of the suit), (Def.’s Supp., Ex. C,) and did, in fact, tow a fish
feed barge approximately twice a week. Id. at 1123. Importantly,
the defendants in Habel did not dispute that their vessel was a
towing vessel under 46 U.S.C. § 3301. Rather, they argued that,
because the Coast Guard had not yet promulgated regulations
governing towing vessels (and, thus, were not actually inspecting
towing vessels), they could not be considered subject to Coast
Guard inspection for purposes of per se liability under the Jones
Act. 855 F. Supp. 2d at 117-18, 1123-24. Thus, Habel is of
limited use in determining whether the Kampachi Vessels here may
be considered towing vessels under section 3301.
15

supports its conclusion that they are not subject to the Coast
Guard diving regulations. The OSHA diving regulations do not
apply to those diving operations over which the Coast Guard
exercises inspection and regulating authority. See Chao v.
Mallard Bay Drilling, Inc., 534 U.S. 235, 122 S. Ct. 738, 743
(2002) (noting that “OSHA’s regulations have been pre-empted with
respect to inspected vessels” (emphasis in original)); see also
Memorandum of Understanding, U.S. Coast Guard and the
Occupational Safety and Health Administration, 48 Fed. Reg. 11366
(March 17, 1983); OSHA AUTHORITY OVER VESSELS
ADJACENT

TO

U.S. NAVIGABLE WATERS

AND THE

AND

FACILITIES

ON OR

OUTER CONTINENTAL SHELF, Directive

No. CPL 02-01-047 at 10 (Feb. 22, 2010) (stating that OSHA has
jurisdiction over seamen on vessels not inspected by the Coast
Guard); OSHA INSTRUCTION RE: COMMERCIAL DIVING OPERATIONS, Directive No.
CPL 02-00-151 at B-2 (June 13, 2011) (“Under a 1983 Memorandum of
Understanding between OSHA and the U.S. Coast Guard, the
occupational safety and health of seamen on inspected vessels is
the exclusive responsibility of the U.S Coast Guard.”). Thus, the
OSHA diving regulations only apply to diving operations launched
from vessels that are not inspected by the Coast Guard.17/

17/

The Ninth Circuit has held that a violation of OSHA
regulations, as opposed to Coast Guard regulations, does not give
rise to per se liability under FELA and the Jones Act. See
Robertson v. Burlington Northern R. Co., 32 F.3d 408, 410-11 (9th
Cir. 1994) (holding that OSHA standards may be admitted in a FELA
case as evidence of the applicable standard of care, but “a
(continued...)
16

Here, Plaintiffs do not dispute that the Kampachi
Vessels are subject to and actually regulated under OSHA’s diving
regulations. (See Pl. CSF ¶¶ 16-18.) Indeed, in early 2013, OSHA
conducted a surprise inspection of the Kampachi Vessels to ensure
their compliance with the OSHA diving regulations. (Def. CSF ¶
18; Pl. CSF ¶ 18.) Moreover, OSHA generally appears to exercise
jurisdiction over fish farming operations like Defendants’. Thus,
for example, OSHA has issued an Interpretation Letter stating
that “[o]perations that are clearly part of the controlled
growing and harvesting of fish . . . are covered by the OSHA
standards for agriculture . . . [t]hus, diving operations
directly related to activities involving the controlled growing
and harvesting of fish, shellfish, and plants are considered
agricultural operations.” (Def. CSF, Ex. Q (OSHA, Standard
Interpretation No. 1928 (Sept. 28, 1982).) It therefore appears
that OSHA views commercial fish farming operations like the one

17/

(...continued)
violation of an OSHA regulation is not negligence per se”); McCoy
v. Foss Maritime Co., 442 F. Supp. 2d 1103, 1112 (W.D. Wash.
2006) (citing Robertson and holding, in the context of an
admiralty case, that violation of OSHA regulations does not
constitute negligence per se, but that the OSHA regulations
“provide strong evidence of the standard of care”); see also 29
U.S.C. § 653(b)(4) (“Nothing in [the OSHA statutory scheme] shall
be construed to ... enlarge or diminish or affect in any other
manner the common law or statutory rights, duties, or liabilities
of employers *801 ... with respect to injuries ... arising out
of, or in the course of, employment.”).
17

at issue here to be governed by the OSHA diving regulations.18/
In sum, in light of their physical characteristics,
their customary use, their official documentation, and OSHA’s
exercise of jurisdiction over the diving operations launched from
them, the Court concludes that the Kampachi Vessels are not
“vessels required to have a certificate of inspection issued by
the Coast Guard.” 46 C.F.R. § 197.202. Because the Kampachi
Vessels are not subject to inspection by the Coast Guard, the
Coast Guard Commercial Diving Operations regulations do not apply
to the diving operations taking place from them. Id. Plaintiffs
therefore cannot base their negligence per se and unseaworthiness
per se claims on any alleged violations of those Coast Guard
regulations. The Court therefore GRANTS Defendants’ Motion for

18/

The Court notes, however, that it appears that OSHA
maintains jurisdiction over diving operations from uninspected
towing vessels at this time. As stated above, while 46 U.S.C.
§ 3301 includes towing vessels as subject to inspection, because
the Coast Guard has not yet issued final regulations regarding
the inspection of towing vessels, towing vessels (except those
that are steam powered, tugboats, or seagoing towing vessels over
300 gross tons) are not actually inspected at this time. Thus,
they are classified as uninspected towing vessels and therefore
fall under OSHA’s jurisdiction. See, e.g., OSHA AUTHORITY OVER
VESSELS AND FACILITIES ON OR ADJACENT TO U.S. NAVIGABLE WATERS AND THE OUTER
CONTINENTAL SHELF, Directive No. CPL 02-01-047 at 11 (Feb. 22,
2010). The fact that OSHA, rather than the Coast Guard, has
actually exercised inspection authority over the Kampachi Vessels
(and actually charged violations and issued fines) is therefore
not, in and of itself, definitive evidence that they are solely
uninspected fishing vessels, and not also uninspected towing
vessels. However, as discussed above, in light of the physical
characteristics, use, and documentation of the vessels, the Court
is satisfied that they are, in fact, fishing vessels.
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Summary Judgment as to Plaintiffs’ negligence and unseaworthiness
claims to the extent they are based upon a theory of per se
liability.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’
Motion for Summary Judgment. (Doc. No. 50.) Because the Court
concludes that the United States Coast Guard Commercial Diving
Operations regulations do not apply to Defendants’ Kampachi
Vessels, the Court grants judgment in Defendants’ favor as to
Plaintiffs’ claims for negligence per se and unseaworthiness per
se. All other claims in the Second Amended Complaint remain.
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, November 23, 2015

________________________________
Alan C. Kay
Sr. United States District Judge

Mount v. Blue Ocean Mariculture, LLC et al., Civ. No. 14-00100 ACK-RLP, Order
Granting Defendants’ Motion for Summary Judgment.

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