The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge
ORDER DENYING DEFENDANTS' MOTION FOR RECONSIDERATION
Before the Court is Defendants Grove Farm Fish & Poi, LLC, doing business as Hukilau Foods ("Grove Farm"), M/V Wailoa HA 533CC, and Same Smell HA 0737CC's (collectively "Defendants") Motion for Reconsideration of the Order Granting in Part and Denying in Part Plaintiff's Motion for Partial Summary Judgment Filed February 27, 2012 ("Motion"), filed March 12, 2011. Plaintiff Daniel Habel ("Plaintiff") filed his memorandum in opposition on March 23, 2012, and Defendants filed their reply on April 2, 2012. The Court finds this matter suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawai`i ("Local Rules"). After careful consideration of the Motion, the supporting and opposing memoranda, and the relevant legal authority, this Court HEREBY DENIES Defendants' Motion.
The parties and the Court are familiar with the factual and procedural background of this case. The Court therefore will only discuss the background that is relevant to the instant Motion.
Plaintiff was employed as a diver and offshore crewman by Grove Farm from April 2009 to February 2010. Grove Farm raises moi fish in open-ocean cages off of Ewa Beach, Oahu, and owns and operates in rem defendants M/V Wailoa HA 533CC ("Wailoa"), and the Feed Barge Same Smell HA 0737CC ("Feed Barge"). Plaintiff alleges that he was injured during the course of his employment, and that Grove Farm failed to provide a safe place in which to work, including a lack of commercial diving safeguards and procedures required by law. Plaintiff's Complaint alleges: (1) Jones Act negligence pursuant to 46 U.S.C. § 30104 (Count I); (2) unseaworthiness (Count II); and (3) maintenance, cure, and found (Count III). [Complaint at ¶¶ 2-18.]
Plaintiff sought partial summary judgment, inter alia, on the ground that Grove Farm is liable under the Jones Act based on violations of United States Coast Guard ("Coast Guard") commercial diving operations regulations. He argued that the regulations create mandatory legal duties under the Federal Employer's Liability Act ("FELA"), 45 U.S.C. §§ 51-60, which is applicable in Jones Act cases. He asserted that the regulations applied to his diving work staged from Wailoa because Wailoa is required to have a certificate of inspection issued by the Coast Guard as a "towing vessel" subject to inspection, under 46 U.S.C. §§ 2101(40), 3301(15), 3311(a), and 46 C.F.R. § 197.202.
Defendants argued in opposition that the regulations do not apply here because the Coast Guard has never required Wailoa to have a certificate of inspection and it was not an inspected vessel when Plaintiff was an employee. Defendants argued that 46 U.S.C. § 3301(15), the section of the statute cited by Plaintiff as requiring inspection of Wailoa, is dependant upon the Coast Guard's pending rulemaking to determine whether vessels like Wailoa are subject to inspection, and if so, the nature and scope of the inspection.
In its February 27, 2012 Order ("Order"), the Court granted Plaintiff partial summary judgment as to the applicability of the Coast Guard commercial diving operations regulations as follows:
The parties dispute whether the Coast Guard regulations cited by Plaintiff in his Motion apply to the Defendants, and whether Wailoa was an "inspected vessel." The Coast Guard and Maritime Transportation Act of 2004, § 415, added "towing vessels" to 46 U.S.C. § 3301. Pub. L. No. 108--293, § 415, 118 Stat. 1028 (Aug. 9, 2004). The Court agrees with Plaintiff that § 3301(15) classifies all "towing vessels" as vessels subject to Coast Guard inspection, and that the action of classification was complete and effective upon enactment in 2004. Although Wailoa is not required to be inspected by current Coast Guard regulations, it does not follow that Wailoa is not a "towing vessel" subject to § 3301(15). That is, § 3301(15) brings Defendants' vessel Wailoa within the reach of the inspection statute, regardless of the ultimate inspection regime to be established by as-yet unpromulgated regulations. See United States v. Massachusetts, 440 F. Supp. 2d 24, 35 (D. Mass. 2006), reversed on other grounds, 493 F.3d 1 (1st Cir. 2007) (rejecting Defendants argument that towing vessels do not fall within the scope of a different statute because towing vessels are not actually inspected, and stating: "[w]hether towing vessels are actually inspected by the Coast Guard or whether the Coast Guard has promulgated regulations on the inspection of towing vessels is irrelevant").
On the current record, the Court finds that Wailoa is a "towing vessel" for purposes of 46 U.S.C. § 3301(15). The parties do not dispute that Wailoa actually towed the Feed Barge up to twice a week, round-trip, from Honolulu Harbor to the offshore cages. [Habel Decl. ¶¶ 5--6; Mem. in Opp. at 11--12 (addressing Wailoa's "occasional tow of the feed barge" and "intermittent towing of the feed barge").] Further, 46 U.S.C. § 2101(40) - which is part of the same Subtitle II ("Vessels and Seaman") as § 3301, and defines terms used within the subtitle - states that "'towing vessel' means a commercial vessel engaged in or intending to engage in the service of pulling, pushing, or hauling alongside, or any combination of pulling, pushing, or hauling alongside." Wailoa clearly falls within the plain meaning of this applicable statutory definition.
Moreover, 46 U.S.C. § 3302 lists vessels that are exempt from inspection under § 3301; the parties do not dispute that none of the exemptions applies to Wailoa. The vessel Wailoa therefore falls within the purview of § 3301(15) as a towing vessel, and is not otherwise exempt under § 3302. Because the Court finds that Wailoa is a towing vessel and is not exempt from inspection, Wailoa is a "a vessel subject to inspection under this part. . . ." 46 U.S.C. § 3311(a).
The Court therefore CONCLUDES that the Coast Guard commercial diving operations regulations set forth in Subpart B of 46 C.F.R. §§ 197.200 through 197.488 apply to Defendants' diving operations from the vessel Wailoa. Plaintiff's Motion is GRANTED with respect to this issue.
Habel v. Grove Farm Fish & Poi, LLC, Civil No. 10--00576 LEK--BMK, 2012 WL 668810, at *11-13 ...