Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In the Matter of the Complaint of Sailing Shipps, Ltd., Dba Gemini Charters v. Jason Alconcel

July 12, 2012


The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge



This action seeks a limitation of liability pursuant to the Limitation of Liability Act, 46 U.S.C. §§ 30501-30512 ("Limitation Act"), which limits a ship owner's liability for someone's injuries to the value of the ship if the owner had no knowledge of conditions that caused the injuries and was not in privity with the actor who caused the injuries.

Defendant Jason Alconcel, who fell off of a zodiac boat while at sea, is seeking damages in state court from the corporation that owns the zodiac, Plaintiff Sailing Shipps, Ltd., and from Chimo Shipp, who owns part of Sailing Shipps and who operated the zodiac. Sailing Shipps seeks application of the Limitation Act.

Alconcel now moves for summary judgment on the ground that, because Chimo Shipp is a part-owner of Sailing Shipps, Sailing Shipps must have had knowledge of the conditions that caused Alconcel's injury or must be deemed to have been in privity with Chimo Shipp. Because the court cannot, on the present record, conclude that limitation is out of the question, the court denies Alconcel's summary judgment motion.

In the alternative, Alconcel asks this court to allow his negligence claim to proceed in state court by lifting the injunction this court entered earlier restraining all other legal proceedings against Sailing Shipps relating to Alconcel's injuries. Alconcel also seeks a stay of this limitation action pending resolution of the negligence claim. Identifying no prejudice to Alconcel if this action is dismissed instead of stayed, the court dismisses this action without prejudice. Once the state court proceedings have been fully adjudicated, Sailing Shipps may refile its claim in this court, as described in the Conclusion of this order.


On February 22, 2008, Chimo Shipp, Jason Alconcel, and two other friends took a zodiac boat owned by Sailing Shipps from Lahaina Harbor, on the island of Maui, to a beach in Kaanapali, Maui. Def. Jason Alconcel's Separate and Concise Statement of Facts in Supp. of Mot. for Summ. J. at 4, ECF No. 47 ("Alconcel Facts"). While at sea, Alconcel fell backward off of the zodiac's rubber pontoon-like edge when Chimo Shipp, the driver of the boat, allegedly made a wide turn. Id. at 5-6. Alconcel was allegedly sucked under the zodiac and hit the zodiac's propeller. Id. at 6. He suffered head injuries as a result. Alconcel's Facts Ex. 2 (Deposition of Chimo Shipp) at 90:24-91:5, ECF No. 49-1.

The zodiac is owned by Sailing Shipps. Alconcel Facts at 2. Sailing Shipps is a Hawaii corporation half-owned by Melany Shipp and half-owned by her three adult children, including Chimo Shipp. Id. at 1. Chimo Shipp owns one-third of one-half of Sailing Shipps. Pl.'s Concise Statement of Facts in Opp. to Claimant's Mot. for Summ. J. at 6, ECF No. 55.

On February 18, 2011, Alconcel filed a negligence action in Hawaii state court against Sailing Shipps and Chimo Shipp. Alconcel Facts at 6. On March, 15, 2011, Sailing Shipps filed the present action, seeking exoneration from or limitation of its liability under 46 U.S.C. § 30505 and Rule F of the Supplemental Rules for Certain Admiralty and Maritime Claims. On March 16, 2011, in accordance with Rule F(3), this court enjoined the further prosecution of any action against Sailing Shipps arising out of the incident in issue. See ECF No. 11.

Alconcel now seeks summary judgment on the limitation issue and dissolution of the injunction. In the alternative, he asks that this court allow his state court negligence action to proceed by staying this limitation action pending resolution of his negligence claim.


Summary judgment shall be granted when "the movant shows 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). A moving party has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000).

The burden initially falls on the moving party to identify for the court "the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. Catrett, 477 U.S. 317, 323 (1986)); accord Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 987 (9th Cir. 2006). "A fact is material if it could affect the outcome of the suit under the governing substantive law." Miller, 454 F.3d at 987. When the moving party bears the burden of proof at trial, that party must satisfy its burden with respect to the motion for summary judgment by coming forward with affirmative evidence that would entitle it to a directed verdict if the evidence were uncontroverted at trial. Id. (quoting C.A.R. Transp. Brokerage Co., Inc. v. Darden Rest., Inc., 213 F.3d 474, 480 (9th Cir. 2000)). When the nonmoving party bears the burden of proof on one or more issues at trial, the party moving for summary judgment may satisfy its burden with respect to those issues by pointing out to the court an absence of evidence from the nonmoving party. Miller, 454 F.3d at 987.

When the moving party meets its initial burden on a summary judgment motion, "[t]he burden then shifts to the nonmoving party to establish, beyond the pleadings, that there is a genuine issue for trial." Id. The court must not weigh the evidence or determine the truth of the matter but only determine whether there is a genuine issue for trial. See Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). On a summary judgment motion, "the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor." Miller, 454 F.3d at 988 (brackets omitted) (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)).

Summary judgment may also be appropriate when a mixed question of fact and law involves undisputed underlying facts. See EEOC v. UPS, 424 F.3d 1060, 1068 (9th Cir. 2005); Colacurcio v. City of Kent, 163 F.3d 545, 549 (9th Cir. 1998).


A. Summary Judgment is Not ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.