Perez Ortiz et al v. Colon Zambrana et al

Filing 142

ORDER granting 52 Defendants' request for a ruling that Regulation 6979 applies to the facts of this case. We remind the parties of the Settlement Conference scheduled for September 22, 2011, at 1:30 P.M. Signed by Judge Jose A Fuste on 9/15/2011. (mrj)

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UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO
FRANCISCO PEREZ ORTIZ, ET. AL.
Plaintiffs,

Civil No. 09-2261 (JAF)

v.
ALBERIC COLON ZAMBRANA,
ET. AL.
Defendants.

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ORDER

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Plaintiffs, Francisco Pérez-Ortiz (“Ortiz”); Efraín O. Cornier-Lancara (“Efraín”); and

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Juan C. Cornier-Lancara (“Juan”); bring this maritime tort action against defendants Alberic

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Colón-Zambrana (“Zambrana”); Zambrana’s wife, Celeste Solís-Aguiló (“Solis); their

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conjugal partnership; and unknown insurance companies. (Docket No. 1.) This court has

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admiralty and maritime jurisdiction under 28 U.S.C. § 1333.1 Defendants request a ruling

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on the application of Article 32(1) of Regulation 6979 (“Regulation 6979") of the Puerto

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Rico Regulations for the Registration, Navigation and Aquatic Safety. (Docket No. 52.)

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Plaintiffs oppose (Docket No. 65), and Defendants respond (Docket No. 70).

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The statute provides: “[t]he district courts shall have original jurisdiction, exclusive of the
courts of the States, of ... [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in
all cases other remedies to which they are otherwise entitled.” 28 U.S.C. § 1333(1).

Civil No. 09-2261 (JAF)

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We have already provided a detailed summary of the facts of this case in our Opinion

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and Order of September 12, 2011, granting Defendants’ motion for partial summary

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judgment. (Docket No. 140.) However, here we include a brief summary and additional

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facts relevant to this motion.

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On July 24, 2009, while snorkeling and harpoon fishing, Plaintiffs were injured when

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hit by Zambrana’s boat. (Docket No. 1 at 8.) Plaintiffs allege that Defendants were

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negligently operating their vessel, and that defendants Zambrana and Solís denied them

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assistance after the accident. (Id. at 19).

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Defendants counter that plaintiffs failed to comply with Puerto Rico regulations

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requiring a diver’s flag. (Docket No. 52 at 2.) They point to Regulation 6979. Article 32(1)

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of Regulation 6979 (“Regulation 6979") states:

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A flag must be displayed for all diving activity. The shape of the flag
will be rectangular, with a length of 16 inches and a width of 12 inches
(16 ” x 12 ”), red in color, bearing a white diagonal stripe with a width
of 2 inches from its upper left hand corner to its lower right hand
corner.2
Regs. for the Registration, Navigation and Aquatic Safety in P.R., art. 32(1), reg. 6979

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(2005), enacted pursuant to 12 L.P.R.A. § 1401 (2000).

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Plaintiffs admit that they were not using a diving flag at any time during the trip

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(Docket No. 65 at 4), but deny that Regulation 6979 applies to them. (Id.) Plaintiffs argue

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that because “diving activity” is not defined in Regulation 6979 or its enabling statute,

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Certified translation in compliance with L.Cv.R. 5(g), Docket No. 52 at 17.

Civil No. 09-2261 (JAF)

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Regulation 6979 cannot apply to snorkeling and harpoon fishing. (Id. at 5.) Defendants

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bring a motion, requesting a ruling that Article 32(1) of Regulation 6979 applies to the facts

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of the case and arguing that the term “diving activity” applies to Plaintiffs’ activities.

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(Docket No. 52 at 10.)

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In Spanish, Regulation 6979 states, “Toda actividad de buceo deberá desplegar una

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bandera.” (Docket No. 52-18.) A certified translation of Regulation 6979 reads, “A flag

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must be displayed for all diving activity.” (Id.) “Buceo” is defined as “acción de bucear,”

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or “the act of diving;” “bucear,” or “dive,” is defined by the dictionary of the Real Academia

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Española: “to swim with the entire body submerged.”3 Real Academia Española, Buceo,

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Diccionario de la Lengua Española, http://buscon.rae.es/draeI/ (last visited Sept. 13, 2011).

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Therefore, Defendants argue, Regulation 6979 applies to Plaintiffs’ activity because, at

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various times during Plaintiffs’ excursion, Plaintiffs’ bodies were completely submerged in

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the water. (Docket No. 52 at 10, 16.)

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Defendants also point to the interpretation of Article 32(1) by an employee of the

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Puerto Rico Department of Natural Resources (“DNR”). (Id. at 9.) While deposed, an

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employee of the DNR, Sergeant Enrique Pérez-Prado (“Prado”), was asked if it was the

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“official position” of his Department that Article 32 applied to snorkeling. (Docket No. 52-

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20.) Prado answered in the affirmative, citing to the same dictionary definition as provided

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above by the Dictionary of the Real Academia Española. (Id.) Referring to the word
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Certified translation of dictionary definition, in compliance with L.Cv.R. 5(g), Docket
No. 52-19.

Civil No. 09-2261 (JAF)

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“buceo,” Prado said, “That means diving, even if you don’t have equipment or a tank.” (Id.)

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Defendants cite to decisions holding that a state agency’s interpretation of state laws is

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entitled to deference by a court. (Docket No. 52 at 5 (citing Antilles Cement Corporation v.

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Acevedo Vilá, 408 F.3d 41, 51 (1st Cir. 2005); Pharm. Research & Mfrs. Of Am. v.

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Concannon, 249 F.3d 66, 75, (1st Cir. 2001)).)

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Plaintiffs respond that Regulation 6979 does not apply to them, because it does not

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explicitly define “diving activity,” and does not expressly state that it applies to “snorkeling”

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or “harpoon fishing.” (Docket No. 65 at 5.) Plaintiffs further argue that they took adequate

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precautions to avoid a collision, by sticking together as a group and displaying buoys. (Id.

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at 7.)

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We agree with Defendants. The words “diving activity” encompass the plaintiffs’

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activities on July 24, 2009. While snorkeling and harpoon fishing, plaintiffs’ bodies were

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submerged in the water on several occasions during the excursion. (Docket No. 52 at 16.)

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This activity falls within the Real Academia Española definition of the term “buceo,” even

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if the term is not defined in Regulation 6979 itself. The interpretation of Prado, an official

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with the DNR, bolsters our holding. (Docket No. 52-20; see Zambrana v. Gonzalez, 145 P.R.

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Dec. 616, 639 (1998) (holding that agency’s interpretation of Commonwealth law is entitled

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to deference).)

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We hold that Article 32(1) applies to the facts in this case. A jury will be free to

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consider Regulation 6979 when deciding whether plaintiffs were comparatively negligent.

Civil No. 09-2261 (JAF)

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In accordance with the foregoing, we hereby GRANT Defendants’ request for a ruling that

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Regulation 6979 applies to the facts of this case. (Docket No. 52).

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We remind the parties of the Settlement Conference scheduled for September 22,
2011, at 1:30 P.M.

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IT IS SO ORDERED.

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San Juan, Puerto Rico, this 15th day of September, 2011.

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s/José Antonio Fusté
JOSE ANTONIO FUSTE
U.S. District Judge