Ehart v. Lahaina Divers, Inc.

Filing 45

ORDER DENYING MOTION TO DISMISS; ORDER GRANTING MOTION TO STRIKE AFFIRMATIVE DEFENSES ASSERTING WAIVER/RELEASE AND ASSUMPTION OF THE RISK re: 24 , 31 - Signed by JUDGE SUSAN OKI MOLLWAY on 5/10/2022. &nb sp;For the reasons stated above, the court denies the motion to dismiss filed by the SCUBA instructors (Miller and Cricchio). However, the court grants William Ehart's motion to strike the affirmative defenses of waiver and release and assumption of the risk. Within one week of the entry of this order, the parties are directed to contact the Magistrate Judge assigned to this case to conduct a settlement conference. (jo)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
WILLIAM McMEIN EHART, JR.,
Individually and as Personal
Representative of MAUREEN
ANNE EHART, deceased,

)
)
)
)
)
Plaintiff,
)
)
vs.
)
)
LAHAINA DIVERS INC.;
)
CORY DAM;
)
KAITLIN MILLER; and
)
JULIANNE CRICCHIO,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 21-00475 SOM-KJM
ORDER DENYING MOTION TO
DISMISS; ORDER GRANTING
MOTION TO STRIKE
AFFIRMATIVE DEFENSES
ASSERTING WAIVER/RELEASE
AND ASSUMPTION OF THE RISK

ORDER DENYING MOTION TO DISMISS;
ORDER GRANTING MOTION TO STRIKE AFFIRMATIVE DEFENSES
ASSERTING WAIVER/RELEASE AND ASSUMPTION OF THE RISK
I.

INTRODUCTION.
Maureen Anne Ehart and her husband, Plaintiff William

McMein Ehart, Jr., went on a chartered SCUBA and snorkeling boat
tour to Molokini Crater, a crescent-shaped volcanic atoll located
about 2.5 miles off the south coast of Maui, Hawaii.

Maureen

Ehart disappeared while snorkeling on that tour and is presumed
to have died.

William Ehart, individually and as personal

representative of Maureen Ehart’s estate, has brought this
wrongful death action, naming as Defendants 1) Lahaina Divers
Inc., the owner of the boat; 2) Cory Dam, the captain of the tour
boat; 3) Kaitlin Miller, a SCUBA instructor on the tour; and
4) Julianne Cricchio, a SCUBA instructor on the tour.

The

Complaint failed to name as a Defendant the operator of the tour

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boat and the employer of the individual Defendants, Lahaina Dive
& Surf LLC.1
Before the court are two motions.

In the first, the

SCUBA instructors (Miller and Cricchio) seek dismissal of the
claims asserted against them, arguing that the facts alleged in
the Complaint do not support any viable claim against them.
Their motion is denied because the facts alleged plausibly
support negligence claims against them.
In the second motion, William Ehart seeks to strike
affirmative defenses asserting waiver and release and assumption
of the risk.
II.

That motion is granted.

BACKGROUND.
Molokini Crater is a popular location for diving and

snorkeling south of Maui, Hawaii, as it is a marine life
conservation district and bird sanctuary.

1

It is an unpopulated

The Complaint incorrectly identified Defendants Kait Irene
and Jules Cricchio. Kaitlin Miller and Julianne Cricchio have
indicated that they are the correct Defendants. For purposes of
the present motion, this court deems all references in the
Complaint to Kait Irene and Jules Cricchio to be references to
Kaitlin Miller and Julianne Cricchio. The parties have also
indicated that Lahaina Dive & Surf LLC should be added as a
party. Plaintiff is given leave to file an Amended Complaint to
correctly identify the parties and to add Lahaina Dive & Surf LLC
as a Defendant. Any such Amended Complaint must be filed no
later than May 31, 2022. Defendants should respond in accordance
with court rules. Defenses stricken by the present order should
not be reasserted, but the absence of them in response to a
pleading filed after the filing of this order shall not
constitute an abandonment of the defenses. Rather, such absence
shall reflect the law of the case.
2

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partially submerged volcanic crater located approximately 2.5
miles off Maui.

See https://molokinicrater.com/ (last visited

May 9, 2022).
On September 14, 2021, the Eharts went on a chartered
SCUBA and snorkeling tour to Molokini Crater.

They boarded the

boat, Dauntless, at Lahaina Harbor and traveled on the Dauntless
to Molokini Crater along with 14 other paying passengers.
See Complaint ¶ 15, ECF No. 1, PageID # 6.

According to the

Complaint, the Dauntless had a three-person crew.

The crew

included Dam, who was the master of the Dauntless and the person
in charge of the charter boat trip, as well as Miller and
Cricchio, open-water SCUBA instructors certified by the
Professional Association of Diving Instructors (“PADI”).

See id.

¶¶ 9-11, 14, PageID #s 5-6.
At the hearing on the present motion, counsel for
Lahaina Divers clarified that Lahaina Divers owned the Dauntless,
while Lahaina Dive & Surf chartered the tour and employed Dam,
Miller, and Cricchio.

See also ECF No. 21-1 n.1, PageID # 94.

Before boarding the Dauntless, the Eharts signed a
waiver.

See ECF No. 32-5, PageID # 239-40; ECF No. 32-5, PageID

#s 246-47.

They released “LAHAINA DIVE & SURF, LLC, AND/OR

LAHA[I]NA DIVERS INC. (LDS/LDI), AND ITS OWNERS, EMPLOYERS,
AGENTS AND ASSIGNS FOR PERSONAL INJURIES OR WRONGFUL DEATH THAT
MAY [OCCUR] DURING THE FORTHCOMING DIVE ACTIVITY AS A RESULT OF
3

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THE INHERENT RISKS ASSOCIATED WITH SCUBA DIVING AND/OR SNORKELING
OR AS A RESULT OF NEGLIGENCE.”
the Eharts to check boxes.

Id.

The waiver then instructed

The following are the boxes that

Maureen Ehart checked (William Ehart checked all of the boxes):

4

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According to the Complaint, Dam, Miller, and Cricchio
“planned, organized, approved, and conducted” the SCUBA and
snorkeling charter boat trip.

See id. ¶ 16, PageID # 6.

The Dauntless went across water to Molokini Crater,
which meant the boat remained on the water, as the crater is
partially submerged.

The boat tied up to a mooring buoy on the

east side of the crater.

See id. ¶ 16, PageID # 6.

At the

hearing on the motion, William Ehart argued that Defendants had
admitted in their answer that Molokini Crater was a protected
area with more than two dozen permanent moorings at which
passengers could get on and off boats.

However, in paragragh 16

of the Answer, Lahaina Divers and Dam admit only that vessels can
disembark and reembark passengers at 16 to 20 moorings at
Molokini Crater, not that the moorings are permanent or that
Molokini Crater is a protected anchorage.
Miller escorted one group of divers on a 40-minute
SCUBA tour, while Cricchio escorted another group on a similar
SCUBA tour.

See id. ¶ 17, PageID #s 6-7.

in either group.

Maureen Ehart was not

After the SCUBA divers, including William

Ehart, began their dives, Maureen Ehart and two others went from
the boat into the water to snorkel.

See id. ¶ 18, PageID # 7;

ECF No. 32-4, PageID # 230 (police report indicating that William
Ehart told police that he was on his SCUBA tour when his wife
entered the water to go snorkeling).

5

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Dam remained on the Dauntless, allegedly to:
a.

Maintain an anchor watch;

b. Serve as a topside lookout and maintain a
bubble watch;
c. Monitor the radio, the currents, and the
weather;
d. Supervise the passengers’ snorkeling
activities;
e.

Act as a lifeguard;

f. Recall the divers and snorkelers if
necessary;
g. And unmoor and get the vessel underway by
himself should the situation require it.
See Complaint ¶ 17, PageID # 7.
According to the Complaint, the wind, waves, and
current increased, and the two other snorkelers returned to the
Dauntless.

Maureen Ehart, however, continued snorkeling alone.

See id. ¶ 19, PageID # 7.
disappeared.

At some point, Maureen Ehart

See ECF No. 32-4, PageID # 229 (police report

indicating that Dam said he lost sight of Maureen Ehart when he
took his eyes off of her for about one minute to help the SCUBA
divers back onto the boat).
The Complaint alleges that, instead of recalling the
SCUBA excursions, reporting a missing passenger to the Coast
Guard, or conducting an immediate search for Maureen Ehart, Dam
waited for both SCUBA tours to return to the boat and then
ordered Miller and Cricchio to look for her.
6

See id. ¶¶ 20-21,

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PageID #s 8-9.

PageID #: 390

The Complaint alleges that this search was poorly

planned, as Miller and Cricchio had no paddle boards or buoys to
give them a better vantage point and were unable to effectively
communicate with anyone while they searched for Maureen Ehart.
See id. ¶ 22, PageID # 9.
The Complaint alleges that Dam called the Coast Guard
to ask for assistance only after Miller and Cricchio failed to
locate Maureen Ehart.

See id. ¶ 23, PageID # 9.

The Coast Guard

searched for Maureen Ehart for three days, but she was never
found.

See id. ¶¶ 23-24, PageID #s 9-10.
The Complaint asserts six causes of action:
1) A Wrongful Death Claim against Lahaina Divers and

Dam based on alleged gross negligence;
2) A Wrongful Death Claim against Miller and Cricchio
based on alleged simple negligence;
3) A Survival Claim against Lahaina Divers and Dam
(damages sustained by Maureen Ehart from the time of the alleged
gross negligence until her death);
4) A Survival Claim against Miller and Cricchio
(damages sustained by Maureen Ehart from the time of the alleged
simple negligence until her death);
5) A Reckless Infliction of Emotional Distress Claim
against Lahaina Divers and Dam; and

7

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6) A Negligent Infliction of Emotional Distress Claim
against Miller and Cricchio.
III.

ANALYSIS.
A.

The SCUBA Instructors’ Motion to Dismiss is
Denied.
1.

Standard.

On a Rule 12(b)(6) motion to dismiss, all allegations
of material fact are taken as true and construed in the light
most favorable to the nonmoving party.

See Fed'n of African Am.

Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.
1996).

However, conclusory allegations of law, unwarranted

deductions of fact, and unreasonable inferences are insufficient
to defeat a motion to dismiss.

See Sprewell v. Golden State

Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
“[T]o survive a Rule 12(b)(6) motion to dismiss,
factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true even if doubtful in fact.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks omitted); accord Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,’ but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation”).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss

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does not need detailed factual allegations, a plaintiff's
obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will
not do.”

Twombly, 550 U.S. at 555.

The complaint must “state a

claim to relief that is plausible on its face.”

Id. at 570. “A

claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”

Iqbal,

556 U.S. at 678.
2.

Analysis.

The parties do not dispute that the claims asserted in
the Complaint arise in admiralty, and the court agrees.

See

Matter of Pac. Adventures, Inc., 5 F. Supp. 2d 874, 877-78 (D.
Haw. 1998).

“Federal courts have authority to develop a

substantive body of general maritime law applicable to cases
within the admiralty and maritime jurisdiction.

The general

maritime law affords redress for injuries and damage caused by
negligence.”

Sutton v. Earles, 26 F.3d 903, 912 (9th Cir. 1994)

(citation and brackets omitted)
To recover for maritime negligence, a plaintiff must
establish “(1) duty; (2) breach; (3) causation; and (4) damages.”
Samuels v. Holland Am. Line-USA Inc., 656 F.3d 948, 953 (9th Cir.
2011).

The duty that applies in maritime negligence cases is
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that of reasonable care under the circumstances.

PageID #:

See Peters v.

Titan Nav. Co., 857 F.2d 1342, 1345 (9th Cir. 1988).

“The degree

of care required is always that which is reasonable, but the
application of reasonable will of course change with the
circumstances of each particular case.”

In re Catalina Cruises,

Inc., 137 F.3d 1422, 1425 (9th Cir. 1998) (stating that a
shipowner owes a duty of reasonable care to those aboard a ship
who are not crew members).
In essence, Miller and Cricchio argue that they owed no
duty of care to Maureen Ehart, as they were SCUBA instructors who
were escorting others on SCUBA tours when Maureen Ehart entered
the water to snorkel and then disappeared.

They argue that the

Complaint’s allegations with respect to their failure to comply
with PADI standards are insufficient because no specific standard
has been identified.

See ECF No. 24-1, PageID #s 99-100.

To the

extent the Complaint alleges that their search was untimely, they
contend that the allegations support no claim against them
because they were leading SCUBA tours when Maureen Ehart
disappeared, and they searched for her only after the captain
ordered them to do so.

Id., PageID # 101.

They further argue

that their failure to find Maureen Ehart does not support a
negligence claim because they had no duty to find her.
PageID #s 101-02.

Id.,

Finally, they argue that their failure to use

paddle boards in their search is insufficient to support a breach
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of any duty because there is no allegation that there were paddle
boards available to them.

Id., PageID # 102.

The SCUBA instructors ignore a number of allegations in
the Complaint.

In evaluating the Complaint on a Rule 12(b)(6)

motion, the court accepts as true the facts asserted and
concludes that William Ehart has alleged sufficient facts
supporting a possible breach of a duty of care.

See Coyoy v.

City of Eloy, 859 F. App’x 96, 97 (9th Cir. 2021) (examining
whether a complaint alleged facts sufficient to plausibly support
a breach of a duty of care);

Spizzirri v. JPMorgan Chase Bank,

NA, 592 F. App’x 599, 600 (9th Cir. 2015) (examining whether a
complaint “plausibly allege[d] that the defendants owed . . . a
duty of care”).
The Complaint plausibly alleges that the SCUBA
instructors breached their duty of care in several respects.

In

paragraph 28 of the Complaint, for example, the Complaint alleges
that all Defendants (Lahaina Divers, Dam, Miller, and Cricchio)
had a duty to provide:
a. A vessel that was manned, equipped, and
operated in accordance with the requirements
of its Certificate of Inspection and in
compliance with 46 C.F.R. Subchapter T;
b. Safe and suitable snorkeling,
scuba-diving, passenger-safety, and rescue
procedures;
c. Crew members, lifeguards, dive masters,
open water scuba instructors, and snorkeling
supervisors who were properly trained,
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certified, and equipped for their respective
jobs;
d. A safe, suitable, and properly supervised
time and place for the scubadiving and
snorkeling excursions that Plaintiff and
DECEDENT had booked; [and]
e. And a timely and effective rescue to any
passenger whom they knew or should have known
to be in peril.
In relevant part, the Complaint alleges that all
Defendants planned, organized, approved, and conducted the SCUBA
and snorkeling trip that tragically ended with Maureen Ehart’s
disappearance.

See Complaint ¶ 16, PageID # 6.

It alleges that

Lahaina Divers and Dam failed to use an appropriate degree of
care in adopting, implementing, and enforcing safe and suitable
snorkeling, SCUBA, and rescue procedures, and in supervising the
snorkeling activities at issue.

See Complaint ¶ 29(e) and (f).

In the second cause of action (a simple negligence claim against
Miller and Cricchio), the Complaint incorporates those
allegations by reference and asserts that Miller and Cricchio
also failed to comply with those duties.
PageID # 16.

See id. ¶¶ 35-36,

The Complaint then further asserts that Miller and

Cricchio were negligent in failing to comply with PADI membership
standards and in failing to timely and effectively conduct a
rescue effort.

Id. ¶ 37.

The Complaint also alleges that the

search was poorly planned and improperly equipped.
PageID # 9.

12

Id. ¶ 22,

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The Complaint plausibly alleges that, as SCUBA
instructors and crew members of the Dauntless, Miller and
Cricchio had a duty to plan and implement the SCUBA and
snorkeling excursion such that it was safe and such that Maureen
Ehart was properly supervised while snorkeling.

The Complaint

also plausibly alleges that Miller and Cricchio had a duty to
properly plan for the foreseeable situation in which a passenger
went missing, requiring them to execute a rescue plan in a timely
and effective manner.

This court is not ruling that Miller

and/or Cricchio actually had such duties, only that the facts
alleged plausibly support such duties.

Nor is the court ruling

that such duties arise under any PADI standard or Coast Guard
regulation.

This court leaves for further adjudication at trial

or via some other motion the issue of whether the actual facts
support such duties.

On the present motion, the court is

accepting as true the allegation that the SCUBA instructors had
such duties in this case.
In so doing, this court is well aware that it is often
said that whether a duty exists is a question of law.

See

Martinez v. Korea Shipping Corp., 903 F.2d 606, 609 (9th Cir.
1990) (“The existence and extent of a duty of care are questions
of law, but proximate cause and whether such a duty has been
breached are questions of fact.”); Contango Operators, Inc. v.
United States, 9 F. Supp. 3d 735, 741 (S.D. Tex. 2014) (stating

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that the duty owed in a negligence case brought under admiralty
law is a question of law for the court to decide), aff'd sub nom.
Contango Operators, Inc. v. Weeks Marine, Inc., 613 F. App’x 281
(5th Cir. 2015); see also Janssen v. Am. Hawaii Cruises, Inc., 69
Haw. 31, 34, 731 P.2d 163, 165 (1987) (“The existence of a duty
is a question of law.”).

The problem in the present case is that

duties may or may not exist based on facts that have not been
established in the record.

This court, accepting as true the

Complaint’s factual allegations, cannot say that the alleged
duties are absent as a matter of law.

In maritime cases, a court

considers whether a duty of reasonable care exists, but the
circumstances of a case affect what is reasonable.

See In re

Catalina Cruises, Inc., 137 F.3d at 1425.
Because the Complaint plausibly alleges a breached duty
on the part of the SCUBA instructors, their motion to dismiss is
denied.
B.

William Ehart’s Motion to Strike Lahaina Divers’
and Dam’s Second Affirmative Defense Is Granted in
Light of 46 U.S.C. § 30509.
1.

Standard.

Rule 12(f) of the Federal Rules of Civil Procedure
states that a district court “may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent,
or scandalous matter.”

“The function of a 12(f) motion to strike

is to avoid the expenditure of time and money that must arise
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from litigating spurious issues by dispensing with those issues
prior to trial.”

Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d

970, 973 (9th Cir. 2010) (quotation marks and citation omitted).
In considering a motion to strike, the court “views the
challenged pleadings in the light most favorable to the [opposing
party].”

Wailua Assocs. v. Aetna Cas. & Sur. Co., 183 F.R.D.

550, 554 (D. Haw. 1998).

A Rule 12(f) motion to strike is a

“severe measure and is generally viewed with disfavor.”

United

States v. 729.773 Acres of Land, 531 F. Supp. 967, 971 (D. Haw.
1982).

However, a motion to strike a defense may be granted when

a defense is clearly insufficient.
2.

Id.

Analysis.

Lahaina Divers and Dam have asserted waiver and release
as their Second Affirmative Defense.
# 73.

See ECF No. 20, PageID

William Ehart seeks to strike this defense, arguing that

it is void under part of the Shipowner’s Limitation of Liability
Act, 46 U.S.C. §

30509(a), which states:

(1) The owner, master, manager, or agent of a
vessel transporting passengers between ports
in the United States, or between a port in
the United States and a port in a foreign
country, may not include in a regulation or
contract a provision limiting--(A) the
liability of the owner, master, or agent for
personal injury or death caused by the
negligence or fault of the owner or the
owner’s employees or agents.
Any such provision is void.

46 U.S.C. § 30509(a)(2) (“A

provision described in paragraph (1) is void.”).
15

Because

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§ 30509(a)(1)(A) prohibits waivers with respect to vessels
transporting passengers between ports in the United States, the
court rules that the waiver signed by the Eharts is void.
Accordingly, the motion to strike the second defense is granted.
In striking the defense, this court acknowledges the
multiple cases that Defendants cite in arguing that the waivers
the Eharts signed are enforceable.

For example, Shultz v.

Florida Keys Dive Center, Inc., 224 F.3d 1269 (11th Cir. 2000),
Olivelli v. Sappo Corporation, 225 F. Supp. 2d 109, 119 (D.P.R.
2002), and Jerome v. Water Sports Adventure Rentals and
Equiptment, 2013 WL 1499046 (D.V.I. Apr. 12, 2013), all
determined that § 30509 (or its predecessor statute) was
inapplicable to waivers involving recreational ocean sport
activities.
In Shultz v. Florida Keys Dive Center, Inc., 224 F.3d
1269 (11th Cir. 2000), the Eleventh Circuit determined that the
predecessor statute to § 30509, 46 U.S.C. § 183c(a), did not
prohibit waivers of negligence claims arising out of SCUBA
activities from a dive boat.

In other words, the waiver in

Shultz was enforceable unless there was some other reason not to
enforce it.

Under § 183c(a) (as under § 30509), it was

unlawful for the manager, agent, master, or
owner of any vessel transporting passengers
between ports of the United States or between
any such port and a foreign port to insert in
any rule, regulation, contract, or agreement
any provision or limitation (1) purporting,
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in the event of loss of life or bodily injury
arising from the negligence or fault of such
owner or his servants, to relieve such owner,
master, or agent from liability, or from
liability beyond any stipulated amount, for
such loss or injury . . . .
Shultz had sued the Florida Keys Dive Center and some of its
employees after his wife apparently drowned during a SCUBA trip
conducted by the dive center.

224 F.3d at 1270.

Shultz sought

to invalidate the waiver he and his wife had signed under
§ 183c(a).

The Eleventh Circuit rejected the application of

§ 183c(a), reasoning that the vessel at issue was “only as a dive
boat: it departed the port of Tavernier in the Florida Keys,
brought the divers to the location of the dive, and after the
dive returned them to Tavernier.

It was not a ‘vessel

transporting passengers between ports of the United States or
between any such port and a foreign port.’”

Id. at 1271.

In ruling that the Shultzes’ waivers were not void
under § 30509’s predecessor, the Eleventh Circuit stated:
The legislative history supports the
interpretation . . . that the statute does
not cover the liability release signed by
Patricia Shultz. Congress enacted § 183c(a)
in 1936 to “put a stop to” practices like
“providing on the reverse side of steamship
tickets that in the event of damage or injury
caused by the negligence or fault of the
owner or his servants, the liability of the
owner shall be limited.” H.R. Rep. No.
74–2517, at 6–7 (1936)[;] H.R. Rep. No.
74–2517, at 6–7 (1936); S. Rep. No. 74–2061,
at 6–7 (1936)[;] S. Rep. No. 74–2061, at 6–7
(1936). That “practice” that Congress
intended to outlaw was much different than
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the practice here--requiring a signed
liability release to participate in the
recreational and inherently risky activity of
scuba diving.
Id.
Olivelli v. Sappo Corporation, 225 F. Supp. 2d 109, 119
(D.P.R. 2002), relied on Shultz in declining to invalidate a
waiver pursuant to § 183c(a) with respect to a wrongful death
action asserted against a dive instructor and his employer
arising out of a SCUBA accident.
In Jerome v. Water Sports Adventure Rentals and
Equipment, 2013 WL 1499046 (D.V.I. Apr. 12, 2013), the plaintiff
sued Watersports Adventure Rentals and Equipment, Inc., dba
Island Flight Adventures, for injuries sustained during a jet ski
and snorkeling tour.

The district court determined that § 30509

did not apply to void a release because the case did not involve
a “‘vessel transporting passengers between ports in the United
States, or between a port in the United States and a port in a
foreign country’ as required by § 30509(a)(1).

Instead, the

plaintiff was injured during a recreational jet ski and
snorkeling tour provided by IFA.”

Id. at * 7.

The rulings of Shultz, Olliveri, and Jerome purport to
embody the simple rule that dive boats differ from steamships,
and that Congress was not thinking of dive boat excursions when
it enacted § 183c(a) (now § 30509).

18

But the actual language of

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§ 30509 and its purpose suggest a different result in the present
case.
Section 30509 voids the waivers the Eharts signed only
if all of the statute’s terms are satisfied.

Wallis v. Princess

Cruises, Inc., 306 F.3d 827, 835 (9th Cir. 2002), is instructive.
In Wallis, the Ninth Circuit refused to apply § 183c to a cruise
that “did not touch a United States port.”

The Ninth Circuit

reasoned that § 183c plainly did not apply when the vessel was
not transporting passengers between ports of the United States or
between any such port and a foreign port.

Id.

This court

similarly turns to whether the facts of this case satisfy the
language of § 30509 in light of the basic canons of statutory
construction.
It is well established that “issues of statutory
construction are questions of law.”

Nelson v. Heiss, 271 F.3d

891, 893 (9th Cir. 2001); Barona Grp. of Capitan Grande Band of
Mission Indians v. Am. Mgmt. & Amusement, Inc., 840 F.2d 1394,
1401 (9th Cir. 1987).

A statute’s language is the starting point

for its interpretation.

See Dyer v. United States, 832 F.2d

1062, 1066 (9th Cir. 1987).

This court interprets undefined

statutory terms by giving them their ordinary meanings.

See FCC

v. AT&T Inc., 562 U.S. 397, 403 (2011) (“When a statute does not
define a term, we typically give the phrase its ordinary meaning”
(internal quotation marks and citation omitted)); Animal Legal
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Def. Fund v. United States Dep't of Agric., 933 F.3d 1088, 1093
(9th Cir. 2019) (same); accord Mohamad v. Palestinian Auth., 566
U.S. 449, 454 (2012) (“Because the TVPA does not define the term
‘individual,’ we look first to the word’s ordinary meaning.”).
The Ninth Circuit has explained that, in determining
the ordinary meaning of a word, courts usually consult dictionary
definitions.

When the word has a plain meaning or is

unambiguous, the statutory interpretation inquiry ends.

See

Animal Legal Def. Fund, 933 F.3d at 1093.
Of course, as the Supreme Court has recognized, when
“the literal reading of a statutory term would compel an odd
result, . . . we must search for other evidence of congressional
intent to lend the term its proper scope.”

Pub. Citizen v. U.S.

Dep't of Just., 491 U.S. 440, 454 (1989) (quotation marks and
citation omitted).

The Supreme court has explained:

Looking beyond the naked text for guidance is
perfectly proper when the result it
apparently decrees is difficult to fathom or
where it seems inconsistent with Congress’
intention, since the plain-meaning rule is
rather an axiom of experience than a rule of
law, and does not preclude consideration of
persuasive evidence if it exists.
Id. (quotation marks and citation omitted).

In other words,

“[t]he plain meaning governs unless a clearly expressed
legislative intent is to the contrary . . . , or unless such
plain meaning would lead to absurd results.”
1066 (citation omitted).
20

Dyer, 832 F.2d at

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Section 30509(a)(1)(A) prohibits (1) an “owner, master,
manager, or agent of a vessel” that is (2) “transporting
passengers between ports in the United States” from (3) limiting
liability for “personal injury or death caused by the negligence
or fault of the owner or the owner’s employees or agents.”
first and third elements are not in issue here.

The

Lahaina Divers

and Dam have admitted that Lahaina Divers is the owner of the
Dauntless.

See Answer ¶ 8, ECF No. 20, PageID # 67 (“Defendants

admit that Lahaina Divers owned the dive boat Dauntless . . .
.”).

They further admit that “Dam was the master of the vessel.”

Id. ¶ 10, PageID # 68.

Nor is there any dispute that the

Dauntless qualifies as a “vessel.”

See id. ¶ 4, PageID # 66

(calling the Dauntless a “dive vessel”).

Finally, there is no

dispute that the Eharts signed a waiver that limited Lahaina
Divers’ and Lahaina Dive & Surf’s liability for personal injury
or death caused by negligence.

See ECF No. 32-5, PageID # 239-

40; ECF No. 32-5, PageID #s 246-47.
The court thus turns to the second element of the
statute--whether Lahaina Divers, Lahaina Dive & Surf, and/or Dam
were “transporting passengers between ports in the United
States.”

There is no dispute that the Eharts were “passengers.”

In Paragraph 4 of Lahaina Divers’ and Dam’s Answer, for example,
they admit that Maureen Ehart was a “passenger-for-hire” for
purposes of 46 C.F.R. § 70.10-1, which defines “passenger-for-

21

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hire” as “a passenger for whom consideration is contributed as a
condition of carriage on the vessel, whether directly or
indirectly flowing to the owner, charterer, operator, agent, or
any other person having an interest in the vessel.”

In paragraph

10 of Lahaina Divers’ and Dam’s Answer, Lahaina Divers and Dam
similarly admit that the Eharts “were aboard the Dauntless along
with fourteen other paying passengers when the vessel . . . left
Lahaina Harbor.”

See ECF No. 20, PageID # 68.

The Opposition to

the motion to strike also characterizes the Eharts as “paying
passengers.”

ECF No. 39, PageID # 286.
a.

The Dauntless Was “Transporting
Passengers.”

Defendants argue that the Dauntless was not
“transporting passengers,” and therefore that § 30509 is
inapplicable and the Eharts’ waivers are enforceable unless
otherwise prohibited.

While Defendants essentially argue that

the Dauntless was not acting as a common carrier, the plain
language of § 30509 does not limit its application to common
carriers.

To the contrary, Congress has explicitly stated that

the statute “applies to seagoing vessels and vessels used on
lakes or rivers or in inland navigation, including canal boats,
barges, and lighters.”

46 U.S.C. § 30502.2

2

Consistent with

Defendants themselves have sought application of the
Shipowner’s Limitation of Liability Act to the case, specifically
46 U.S.C. § 30505 (providing a limitation of certain liabilities
of an owner of a vessel to “the value of the vessel and pending
22

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§ 30502, § 30509 only requires that a vessel be “transporting
passengers,” not that it act as a common carrier.

See Matter of

Pac. Adventures, Inc., 5 F. Supp. 2d 874, 879 (D. Haw. 1998)
(“Section 183c is not limited to common carriers but applies to
‘all vessels used on lakes or rivers or in inland navigation,
including canal boats, barges, and lighters.’” (quoting 46 U.S.C.
App. § 188.)).
While the statute does not define “transporting,” its
ordinary meaning is satisfied under the facts presented here.
The American Heritage Dictionary of the English Language defines
“transport” as “[t]o move or carry (goods, for example) from one
place to another; convey.”
https://www.ahdictionary.com/word/search.html?q=transport (last
visited May 9, 2022).

The Merriam-Webster dictionary similarly

defines “transport” as “to transfer or convey from one place to
another.”

https://www.merriam-webster.com/dictionary/transport

(last visited May 9, 2022).
The Opposition to the Motion to Strike argues that the
Dauntless was just a dive boat and that its purpose was not to
transport passengers like a common carrier, but instead to take
divers and snorkelors from Lahaina Harbor to a dive spot and then

freight”). See Twelfth Affirmative Defense, ECF No. 20, PageID
# 75. It is not clear why this court should use different
definitions under § 30505 versus under § 30509. Under § 30502,
neither section is expressly limited to common carriers.
23

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return them to the Lahaina Harbor after their recreational
excursion.

This narrow construction does not represent the

ordinary meaning of “transporting passengers.”

As noted above,

there is no dispute that the Eharts were “passengers” on the
Dauntless.

Nor is there any dispute that the Dauntless was

conveying the Eharts from Lahaina Harbor to Molokini Crater and
then intended to return them to Lahaina Harbor.

This satisfies

the plain meaning of “transporting”; the Eharts were being
conveyed from one place to another.
b.

The Dauntless Was Transporting
Passengers “Between Ports of the United
States.”

In arguing that § 30509 is inapplicable and that the
Eharts’ waivers are therefore enforceable, Defendants note that
the Dauntless was conveying passengers from Lahaina Harbor to a
dive spot and then back to Lahaina Harbor.

Because the starting

and ending points involve the same port, Defendants contend that
the Dauntless was not transporting passengers “between ports,” as
required by § 30509.

William Ehart, on the other hand, argues

that traveling between different ports (Port A to Port B) is not
necessary for § 30509 to apply and that roundtrip travel from a
port and back to the same port (Port A to Port A) is sufficient.
He alternatively argues that the mooring buoy at Molokini Crater
constitutes a port such that the voyage was, in fact, between
Port A (Lahaina Harbor) and Port B (the mooring buoy).

24

This

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court agrees that transporting passengers on a vessel traveling
from Port A and then back to Port A is sufficient to satisfy
§ 30509’s “between ports” requirement such that the waivers the
Eharts signed are void because § 30509’s elements are all
satisfied.

The court therefore need not reach the argument that

the mooring buoy constitutes a port.
The American Heritage Dictionary of the English
Language defines “between” as “[i]n or through the position or
interval separating” and “[c]onnecting spatially.”
https://www.ahdictionary.com/word/search.html?q=between (last
visited May 9, 2022).

The Merriam-Webster dictionary similarly

defines “between” as “in the time, space, or interval that
separates.”

https://www.merriam-webster.com/dictionary/between

(last visited May 9, 2022).
The American Heritage Dictionary of the English
Language defines “port” as:
1. a. A place on a waterway with facilities
for loading and unloading ships.
b. A city or town on a waterway with such
facilities.
c. The waterfront district of a city.
2. A place along a coast that gives ships and
boats protection from storms and rough water;
a harbor.
3. A port of entry.

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https://www.ahdictionary.com/word/search.html?q=port (last
visited May 9, 2022).
The Merriam-Webster dictionary similarly defines “port”
as:
1 : a place where ships may ride secure from
storms : HAVEN
2a : a harbor town or city where ships may
take on or discharge cargo
b : AIRPORT
3 : PORT OF ENTRY
https://www.merriam-webster.com/dictionary/port (last visited May
9, 2022).
In its Glossory of Shipping Terms at 80, the United
States Department of Transportion similarly defines “port” as a
“[h]arbor with piers or docks.”
https://www.maritime.dot.gov/sites/marad.dot.gov/files/docs/resou
rces/3686/glossaryfinal.pdf (last visited May 9, 2022).
Black’s Law Dictionary (11th ed. 2019) defines “port”
as “1.

A harbor where ships load and unload cargo. 2. Any place

where persons and cargo are allowed to enter a country and where
customs officials are stationed.”3

3

As noted above, this court does not reach the issue of
whether the mooring buoy at Molokini Crater constitutes a port as
defined in another chapter of the United States Code governing
telecommunications. There, Congress defined “harbor” or “port”
as “any place to which ships may resort for shelter or to load or
unload passengers or goods, or to obtain fuel, water, or
supplies.” 47 U.S.C. § 153.
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While § 30509 uses the plural “ports,” this does not
necessarily mean that different ports must be involved.

As noted

above, when “the literal reading of a statutory term would compel
an odd result, . . . we must search for other evidence of
congressional intent to lend the term its proper scope.”

Pub.

Citizen v. U.S. Dep't of Just., 491 U.S. 440, 454 (1989)
(quotation marks and citation omitted).

Here, applying “ports”

only when journeys are between Port A and Port B leads to odd and
absurd results.

For example, a vessel may take passengers a few

hundred yards from one side of a river to the other (Port A to
Port B).

Waivers of negligence for the short journey between

Port A and Port B would be prohibited by § 30509, as the journey
would involve transportation of passengers “between ports of the
United States.”

However, if the same vessel left Port A for a

10-hour sightseeing tour and then returned to the same port (Port
A), then, under Defendants’ argument, waivers of negligence for
such a journey would not be prohibited by § 30509.

It makes

little sense to think that Congress intended to prohibit a waiver
only for the first (very brief) journey.

Both involve the

transportation of passengers between ports.

In the latter

example, the vessel is conveying the passengers from one port out
for a boat tour and then back to the same port, with the tour
being the interval between embarkation and disembarkation at the
same port.

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Had Congress intended to require different ports when
it used the word “ports,” it could have easily indicated that by
using the phrase “between different ports.”

It did not do so.

Congress could have also clarified that it meant “ports” to
include the same or different ports by using the phrase “between
the same or different ports.”

Again, it did not do so.

Because

this court’s job in interpreting the meaning of “between ports”
is to facilitate congressional intent when absurd results might
follow or when there is ambiguity in a statute, this court looks
to § 30509’s legislative history.

Nothing in the ordinary

meaning of the words “between ports” renders those words
exclusive to voyages involving two distinct ports (Port A to
Port B).

Instead, the word “between” allows a port to be

spatially and temporally connected to itself by an intervening
tour.

That is, Port A may be connected to Port A by the voyage

taken from the initial port that then returns to the same port.
Congressional testimony with respect to § 183c(a)
indicates that, in response to the Owners’ Liability Act, which
increased the liability of shipowners, operators of passenger
vessels started printing limitations of liability on the back of
tickets.

See, e.g.,

Cong. Record-House at 8575 (1936); Cong.

Record–Senate at 8438 (June 1, 2936); see also Hearings Before
the Committee on Merchant Marine and Fisheries H.R. 9969, Part 4,
Amending the Limited Liability Act at 3 (1936) (“The proposed

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amendments are necessitated by the immediate measures that were
taken by steamship owners to evade the privileges and benefits of
that new liability law.

Because of the increased liability they

are now inserting on the back of passenger tickets their own
private limitations of liability, some in nominal amounts, some
in larger amounts, but, nevertheless, not the sufficient amount
which was the intent of this committee to decree the steamship
owners should be liable for.”); but see id. at 116 (testimony
denying that the limitation provisions were inserted on the back
of tickets only after the new law was enacted).
During testimony before Congress with respect to
§ 183c, the infamous General Slocum disaster from several decades
earlier was discussed.

See Hearings Before the Committee on

Merchant Marine and Fisheries, House of Representatives, Seventy
Fourth Congress, Second Session on H.R. 9969 at 23 (1936).
According to the Report of the United States Commission of the
Investigation Upon the Disaster to the Steamer “General Slocum”
(Oct. 8, 1904), 957 of the 1,388 passengers and crew of the
General Slocum died when the vessel caught fire in New York
Harbor on June 15, 1904.
this disaster.

Congress examined the circumstances of

See Evidence Before the Committee on Claims of

the House of Representatives on H.R. 4154 for the Relief of the
Victims of the General Slocum disaster (Apr. 20, 1910).

The

General Slocum was chartered to take up to 1,500 passengers from

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the harbor to a picnic area and back.

See id. at 3-4.

started shortly after the trip began.

PageID #:

The fire

Apparently, the life

preservers were rotten and the fire safety apparatus did not
work.

This meant that many passengers either died from the fire

or smoke or jumped overboard and drowned, not knowing how to
swim.

Id.
More than 30 years after the General Slocum disaster,

testimony before Congress with respect to § 183c still referred
to the event.

For example, discussions about older excursion

vessels taking passengers on daily excursions in New York Harbor
included references to the General Slocum disaster.

Concern was

raised that passengers going out on a day’s excursion were
permitted to go on those outings without knowing in advance which
ones were safe and which were not.

See Hearings Before the

Committee on Merchant Marine and Fisheries, House of
Representatives, Seventy Fourth Congress, Second Session on H.R.
9969 at 36 (1936).

Thus, in enacting § 183c, Congress was well

aware of vessels taking passengers on day trips to and from the
same port.
Against this backdrop, the House and Senate Reports
with respect to § 183c’s voiding of waivers noted the testimony
regarding the “practice of providing on the reverse side of
steamship tickets that in the event of damage or injury caused by
the negligence or fault of the owner or his servants, the

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liability of the owner shall be limited to a stipulated amount.”
S.R. 74-2061 (May 12, 1936); H.R. 74-2517 (Apr. 28, 2936).

The

reports indicated that § 183c(a) “is intended to, and in the
opinion of the committee will, put a stop to all such practices
and practices of like character.”

Id. (emphasis added).

In

other words, Congress intended to put a stop to all waivers by
passengers being transported by ship, not just waivers with
respect to passenger transportation from one port to a different
port.

Given the express intent by Congress to “put a stop to all

such practices and practices of like character,” this court
applies § 30509 not only to the transportation of passengers
between Port A and a different port but also to the
transportation of passengers from Port A (provided it is in the
United States) on an excursion that returns to Port A even if
there is no intervening different port.
This is essentially what one judge in this district
recognized in Courtney v. Pacific Adventures, 5 F. Supp. 2d 874,
879 (1998), which also involved a dive boat accident.

That case

rejected an argument that § 183c(a) was inapplicable because the
dive boat transported the plaintiff to and from the same port.
The judge reasoned that § 183c(a) was not so limited, stating,
“The provision stating ‘between ports of the United States or
between any such port and a foreign port’ means that there must
be a nexus between the voyage and the United States.”

31

Id.

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PageID #:

In Hambrook v. Smith, 2015 WL 3480887, *5 (D. Haw. June
2, 2015), that same judge applied his earlier Courtney holding to
invalidate a waiver of negligence claims against a different dive
company involved in a diving accident.
Hambrook was appealed.

Neither Courtney nor

The present judge views those cases as

consistent with the intent of Congress to bar “all” waivers with
respect to the transportation of passengers.
This court has already acknowledged the Eleventh
Circuit’s contrary statement of congressional intent in Shultz.
See 224 F.3d at 1271.

Under Shultz, whether a waiver is void or

enforceable under § 30509 turns on when the negligence occurred
or what a person on a vessel was doing, not on whether a vessel
was transporting passengers between ports.

According to the

Eleventh Circuit’s reasoning, § 30509 would not void a waiver
signed by a passenger who drowned while being transported to a
dive spot if the vessel sank on the way there (assuming the
“between ports” element was satisfied).

But allowing a waiver

under those circumstances would contravene the intent of Congress
to void waivers by passengers injured in the process of being
transported.

There is no good reason to differentiate between a

waiver signed by a passenger who drowns while being transported
to a dive spot when a vessel sinks from a waiver signed by a
passenger who gets off a vessel at a dive spot and then drowns
while diving.

Congress wanted to prohibit waivers involving

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passenger transportation and to “put a stop to all such practices
and practices of like character.”
The Eleventh Circuit itself has subsequently
invalidated a waiver executed in favor of a cruise ship that was
transporting passengers between a port in the United States and a
foreign port when a passenger was injured while on a simulated
surfing and body-boarding activity on the cruise ship.

See

Johnson v. Royal Caribbean Cruises, Ltd., 449 Fed. App’x 846,
848-49 (11th Cir. 2011).

In Johnson, the Eleventh Circuit

recognized that the statute did not make exceptions with respect
to the type of activity underlying a waiver.
Because the Dauntless was transporting the Eharts
(paying passengers) between a port of the United States and the
same port, and because all of the other elements of § 30509 are
satisfied, the court rules that the Eharts’ waiver is void under
§ 30509.

Accordingly, the court strikes Defendants’ affirmative

defense asserting waiver and release.
3.

Plaintiff Fails to Demonstrate That the
Waiver and Release Affirmative Defense Should
Also Be Stricken Based on Section 663-1.54 of
Hawaii Revised Statutes.

William Ehart also seeks to strike the waiver and
release defense on the ground that it is void under section 6631.54 of Hawaii Revised Statutes.

That statute provides:

(a) Any person who owns or operates a
business providing recreational activities to
the public, such as, without limitation,
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scuba or skin diving, sky diving, bicycle
tours, and mountain climbing, shall exercise
reasonable care to ensure the safety of
patrons and the public, and shall be liable
for damages resulting from negligent acts or
omissions of the person which cause injury.
(b) Notwithstanding subsection (a), owners
and operators of recreational activities
shall not be liable for damages for injuries
to a patron resulting from inherent risks
associated with the recreational activity if
the patron participating in the recreational
activity voluntarily signs a written release
waiving the owner or operator's liability for
damages for injuries resulting from the
inherent risks. No waiver shall be valid
unless:
(1) The owner or operator first provides
full disclosure of the inherent risks
associated with the recreational activity;
and
(2) The owner or operator takes
reasonable steps to ensure that each patron
is physically able to participate in the
activity and is given the necessary
instruction to participate in the activity
safely.
(c) The determination of whether a risk is
inherent or not is for the trier of fact. As
used in this section an “inherent risk”:
(1) Is a danger that a reasonable person
would understand to be associated with the
activity by the very nature of the activity
engaged in;
(2) Is a danger that a reasonable person
would understand to exist despite the owner
or operator’s exercise of reasonable care to
eliminate or minimize the danger, and is
generally beyond the control of the owner or
operator; and

34

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(3) Does not result from the negligence,
gross negligence, or wanton act or omission
of the owner or operator.
Haw. Rev. Stat. Ann. § 663-1.54 (West).
When situations arise that are not governed by
legislation or admiralty precedent, federal courts may look to
state statutory and common law to “borrow” as the appropriate
federal admiralty rules.

See Richard v. Anadarko Petroleum

Corp., 850 F.3d 701, 709 (5th Cir. 2017) (recognizing that “state
law may occasionally be utilized to fill the gaps in an
incomplete and less than perfect maritime system” (quotation
marks and citation omitted)).

For example, in Hambrook v. Smith,

2016 WL 4498991 (Aug. 17, 2016), the court borrowed Hawaii’s law
on negligence when issuing post-trial findings of fact and
conclusions of law with respect to a fatal SCUBA diving accident.
Even assuming that this court should borrow section
663-1.54 to supplement admiralty law, William Ehart fails to
establish that all of section 663-1.54’s requirements for voiding
the waivers at issue have been established.

Section 663-1.54(a)

provides that owners and operators of businesses providing SCUBA
recreation “shall be liable for damages resulting from negligent
acts or omissions of the person which cause injury.”

However,

section 663-1.54(b) provides that they “shall not be liable for
damages for injuries to a patron resulting from inherent risks
associated with the recreational activity” so long as certain

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conditions are satisfied.

PageID #:

Those conditions include “full

disclosure of the inherent risks” and taking “reasonable steps to
ensure that each patron is physically able to participate in the
activity and is given the necessary instruction to participate in
the activity safely.”

This court cannot find as a matter of law

based on the pleadings alone that these conditions have or have
not been satisfied.

Moreover, section 663-1.54(c) provides that

“determination of whether a risk is inherent or not is for the
trier of fact.”
Under these circumstances, even assuming section 6631.54 applies, William Ehart fails to establish based on the
allegations in the pleadings that it voids the waivers at issue
here.

In so ruling, the court recognizes that William Ehart

mentioned the summary judgment standard in filing his motion and
even submitted a concise statement.

However, there remains on

the present record a question of fact about whether section 6631.54(b)’s conditions were satisfied, including whether there was
“full disclosure of the inherent risks” and whether the Tour
Operator took “reasonable steps to ensure that [Maureen Ehart
was] physically able to participate in the activity and [was]
given the necessary instruction to participate in the activity
safely.”

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C.

PageID #:

William Ehart’s Motion to Strike Lahaina Divers’
and Dam’s Third Affirmative Defenses Is Granted.

Lahaina Divers and Dam assert assumption of the risk in
their Third Affirmative Defense.

See ECF No. 20, PageID # 73.

At the hearing, the parties agreed that this affirmative defense
should be stricken.

See also ECF No. 39, PageID # 285

(“Defendants do not oppose the motion as to implied assumption of
risk.”).

Accordingly, the court strikes the assumption of the

risk affirmative defense.
IV.

CONCLUSION.
For the reasons stated above, the court denies the

motion to dismiss filed by the SCUBA instructors (Miller and
Cricchio).

However, the court grants William Ehart’s motion to

strike the affirmative defenses of waiver and release and
assumption of the risk.
Within one week of the entry of this order, the parties
are directed to contact the Magistrate Judge assigned to this
case to conduct a settlement conference.

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PageID #:

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 10, 2022.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Ehart v. Lahaina Dive & Surf LLC, Civ. No. 21-00493 SOM-KJM; ORDER DENYING MOTION TO
DISMISS; ORDER GRANTING MOTION TO STRIKE AFFIRMATIVE DEFENSES ASSERTING WAIVER/RELEASE
AND ASSUMPTION OF THE RISK

38