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Mount v. Keahole Point Fish, LLC

United States District Court, D. Hawaii

November 23, 2015

RICHARD MOUNT and ELLEN FROSCH, Plaintiffs,
v.
KEAHOLE POINT FISH, LLC; BLUE OCEAN MARICULTURE, LLC; FISH FACTS, INC., in personum; M/V KONA KAMPACHI I; and M/V/ KONA KAMPACHI II, their Engines, Tackle, Apparel, Furniture and Appurtenances, etc., in rem, Defendants

          For 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.

         For 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.

         ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

         Alan C. Kay, Senior United States District Judge.

         For the 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.

         FACTUAL BACKGROUND[1]

         This is 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 ¶ 8.)

         Defendant 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.)

         Defendant 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.[2] (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" ).)

         Plaintiff 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 ¶ ¶ 51-52.)

         PROCEDURAL BACKGROUND

         On 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. 29.)

         On 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.[3] (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 & 51.)

         While 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.)

         Plaintiffs filed their memorandum in opposition to the instant Motion, along with a concise statement of facts and several exhibits, on October 9, 2015.[4] (Doc. Nos. 88 & 89.) Defendants filed their reply on October 19, 2015. (Doc. No. 93.)

         A hearing on the Motion[5] was held on November 2, 2015.[6]

         STANDARD

         Summary 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 ...


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