Christopher MacDonald v Kahikolu Ltd
Christopher MacDonald ("MacDonald"), plaintiff, brought an action against boat owner, Kahikolu Ltd., ("Kahikolu"), alleging negligence under the Jones Act. The U.S.D.C. Of Hawaii entered judgment, following a bench trial in favor of Kahikolu. The Court of Appeals vacated and remanded then the District Court of Hawaii again entered judgment for the company. MacDonald appealed again.
Kahikolu conducts whale watching, scuba, and snorkeling tours off the coast of Maui and Hawaii. MacDonald worked as a deck hand and lifeguard for Kahikolu and periodically made free dives as a part of his job.
On the day of MacDonald's injury, aboard the Frogman II , MacDonald undertook a free dive to retrieve a mooring line from the sea floor at a depth of about 46 feet. While descending to the sea floor he injured his left ear trying to equalize the pressure in his ears.
As a result, MacDonald had to be treated for permanent hearing loss, dizziness, and tinnitus.
MacDonald alleged a violation of the Jones Act for failure to provide a safe work environment, among other claims.
During the first trial, the District Court found that MacDonald was an experienced free diver who regularly had made many dives to depths of 30, 40, and 50 feet without ear pain or injury. Furthermore, the Court found that Kahikolu employees had made thousands of free dives without injury and that the activity was not inherently dangerous. Ultimately the Court found that Kahikolu was not negligent because they did not have notice of any unsafe condition.
Moreover, MacDonald argued that because Kahikolu did not comply with a Coast Guard regulation which required the company to provide an operations manual to the person in charge of the dive. The District Court found that this applied to commercial scuba divers, not to free divers.
This Court reversed the Court's decision on the grounds that the Court failed to consider the applicability of a Supreme Court case which stated an employer was liable for the injury of an employee (under FELA and the Jones Act) for breach of a common law or statutory duty.
On remand, the District Court again found that failure to have a dive manual, as required by the regulation did not play any part in producing MacDonald's injuries.
The District Court again declined to apply the rule set forth in Pennsylvania alternatively held that even if the rule applied, Kahikolu had met its burden under the Rule.
Did the District Court err in failing to apply Pennsylvania in reaching its decision to not hold Kahikolu liable for negligence although they violated a Coast Guard regulation?
The Pennsylvania Rule is a longstanding rule of admiralty law that has often been applied in the Ninth Circuit.
Under the Rule, if a vessel involved in an accident violated a statute or regulation intended to prevent such an incident, it is presumed that the ship owner was at fault, and the burden proving causation shifts to ship owner. The Court reasoned this burden was necessary to enforce obedience to the mandate of the statute.
However, this Court found that in order for the Pennsylvania Rule to apply, the injury must be of the kind intended to be prevented by the statute or regulation the defendant violated.
This Court declined to decide whether the Pennsylvania Rule reaches beyond the traditional domain of navigational accidents and ship collisions.
This Court found that because the regulation applied only to commercial divers (persons using underwater breathing apparatus - not free divers) Moreover, the manual is not required to contain restrictions or protocol regarding free diving. This indicated, according to the Court, that the regulations were not intended to protect against MacDonald's injuries and that there is no casual relationship between the regulation violation and the injury.
Accordingly this Court affirmed the District's Court ruling holding that Kahikolu was not liable to MacDonald under the Jones Act
An employer will be per se negligent under the Jones Act if a violation of a regulation or statute is related to the injury suffered by the plaintiff.
The Pennsylvania Rule, shifting the burden of proof on the defendant, involves a 3 part test. The Rule will apply upon a showing (1) by the preponderance of the evidence showing a violation of a statute or regulation that imposes mandatory duty (2) the statute or regulation must involve marine safety or navigation and (3) the injury suffered must be of a nature that the statute or regulation was intended to prevent.
Steve Gordon
http://www.offshoreinjuries.com
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