United States District Court, D. Hawaii
Richard Mount, Ellen Frosch, Plaintiffs: David L. Fairbanks,
LEAD ATTORNEY, Howard G. McPherson, Cronin Fried Sekiya
Kekina & Fairbanks, Davies Pacific Center, Honolulu, HI; John
T. O'Connell, LEAD ATTORNEY, PRO HAC VICE, Lee Myers and
O'Connell LLP, Aurora, CO.
Blue Ocean Mariculture, LLC, in personam, M/V Kona Kampachi
I, M/V Kona Kampachi II, their Engines, Tackle, Apparel,
Furniture and Appurtenances, etc., in rem, Keahole Point
Fish, LLC, Fish Facts, Inc., Defendants: Ralph J.
O'Neill, LEAD ATTORNEY, MacDonald Rudy Byrns O'Neill
& Yamauchi, ASB Tower, Honolulu, HI; Jamie Christine S.
Madriaga, MacDonald Rudy Byrns O'Neill & Yamauchi,
Pacific Tower, Honolulu, HI.
GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Kay, Senior United States District Judge.
following reasons, the Court hereby GRANTS Defendants'
Motion for Summary Judgment. (Doc. No. 50.) Because the Court
concludes that the United States Coast Guard Commercial
Diving Operations regulations do not apply to Defendants'
Kampachi Vessels, the Court grants judgment in
Defendants' favor as to Plaintiffs' claims for
negligence per se and unseaworthiness per se. All other
claims in the Second Amended Complaint remain.
an admiralty case arising out of injuries Plaintiff Richard
Mount suffered while working as a crew member and lead diver
for Defendant Keahole Point Fish, LLC (" Keahole
Fish" ). (Def. CSF, Madsen Decl. ¶ 19; SAC ¶
Blue Ocean Mariculture, LLC (" Blue Ocean" ) is an
aquaculture company that raises Hawaiian Kampachi fish in
submersed net structures approximately one mile off the coast
of Kona, Hawaii. (Madsen Decl. ¶ 4.) In support of its
business, Blue Ocean operates the following vessels: the Kona
Kampachi I (" Kampachi I" ), Official Number
1183797, and the Kona Kampachi II (" Kampachi II"
), Official Number 1198834 (together, " Kampachi
Vessels" ). (Id. ¶ 3.)
Keahole Fish employs divers and other employees to support
Blue Ocean's operations. (Id. ¶ 5.)
Plaintiff began working for Keahole Fish in January of
2010. (Id. ¶ 19.) Plaintiff
Mount asserts that he suffered an ear injury on November 15,
2011, while working aboard the Kampachi I and taking part in
a diving operation staged from that vessel. (SAC ¶ 14.)
Specifically, a scuba regulator hose burst near his left ear
during the dive, causing his alleged injury. (Id.;
Def. CSF, Madsen Decl. ¶ 20; Def. CSF, Ex. H ("
Report of Work-Related Injury" ).)
also claims that on September 6, 2012, he suffered an
inguinal hernia while working underwater from the Kampachi
II, pushing a net " sweep wall" used by the divers
to confine fish to prepare them to be harvested. (SAC ¶
¶ 16-23.) Plaintiff asserts that he and a group of other
divers were pushing the sweep wall net, but at some point all
of the other divers had surfaced without Plaintiff's
knowledge. (Id. ¶ ¶ 18 21.) Plaintiff
continued pushing against the sweep wall net and felt a sharp
pain in his groin. (Id. ¶ 22.) Plaintiff
continued working until he reported the incident on January
7, 2013. (Madsen Decl. ¶ 21; Def. CSF, Ex. I ("
Report of Work-Related Injury" ).) Plaintiff was
diagnosed with an inguinal hernia for which he underwent
surgery at Kaiser Permanente in Kona on January 31, 2013. He
continued to experience pain thereafter and, on January 29,
2015, underwent a second surgery at the UCLA Lichetenstein
Amid Hernia Clinic. (Mot. at 4.) Plaintiff asserts that he
continues to suffer the negative impacts of the injuries he
suffered while working for Defendants. (SAC ¶ ¶
February 28, 2014, Plaintiffs Richard Mount and his wife
Ellen Frosch (together, " Plaintiffs" ) filed their
original Complaint against Blue Ocean, in personum,
and the M/V KONA KAMPACHI I and M/V KONA KAMPACHI II, in
rem. (Doc. No. 1.) Plaintiffs subsequently filed a First
Amended Complaint on May 2, 2014, adding as defendants
Keahole Fish, and Fish Facts, Inc. (all defendants
collectively referred to as " Defendants" ). (Doc.
No. 15.) In the First Amended Complaint, Plaintiffs brought
the following claims: (1) Jones Act Negligence as against all
in personum defendants; (2) Unseaworthiness as
against Defendants Blue Ocean, Fish Facts, and the Vessels;
(3) Maintenance and Cure as against Defendants Keahole Fish
Point and the Vessels; and (4) Loss of Consortium as against
Defendants Blue Ocean, Fish Facts, and the Vessels. On August
5, 2014, the parties stipulated to the dismissal of Count
III, Plaintiffs' maintenance and cure claim. (Doc. No.
February 6, 2015, the parties stipulated to stay the instant
case for approximately three months to allow Plaintiff Mount
time to recover from a surgery he underwent on January 29,
2015. (Doc. No. 38.) The stay was lifted on
June 26, 2015, and Defendants filed the instant Motion for
Summary Judgment, along with a concise statement of facts and
numerous supporting exhibits, on July 22, 2015. (Doc. Nos. 50
the instant Motion was pending, Plaintiffs were granted leave
to file a Second Amended Complaint, re-alleging a claim for
Maintenance and Cure. (Doc. No. 78.) Plaintiffs therefore
filed their Second Amended Complaint on September 22, 2015,
alleging the same four counts as alleged in the First Amended
Complaint (including the Maintenance and Cure claim that had
previously been dismissed via the parties' stipulation).
(Doc. No. 80.)
filed their memorandum in opposition to the instant Motion,
along with a concise statement of facts and several exhibits,
on October 9, 2015. (Doc. Nos. 88 & 89.) Defendants filed
their reply on October 19, 2015. (Doc. No. 93.)
hearing on the Motion was held on November 2,
judgment is appropriate when a " 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). The central issue is " whether the
evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law." Anderson ...