MacDonald v. Kahikolu Ltd. ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER MACDONALD, 
Plaintiff-Appellant, No. 04-15979
v.
 D.C. No.
CV-02-00084-LEK
KAHIKOLU LTD., dba Frogman
Charters, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, Magistrate, Presiding
Argued and Submitted
February 14, 2006—San Francisco, California
Filed March 31, 2006
Before: Arthur L. Alarcón and M. Margaret McKeown,
Circuit Judges, and H. Russel Holland,* District Judge.
Opinion by Judge Alarcón
*The Honorable H. Russel Holland, Senior United States District Judge
for the District of Alaska, sitting by designation.
3593
MACDONALD v. KAHIKOLU LTD. 3595
COUNSEL
Howard G. McPherson, Cronin, Fried, Sekiya, Kekina & Fair-
banks, Honolulu, Hawaii; John R. Hillsman, McGuinn, Hills-
man & Palefsky, San Francisco, California, for the plaintiff-
appellant.
Richard C. Wootton, Cox, Wootton, Griffin, Hansen & Pou-
lous, LLP, San Francisco, California, for the defendant-
appellee.
3596 MACDONALD v. KAHIKOLU LTD.
OPINION
ALARCÓN, Circuit Judge:
Christopher MacDonald appeals from the final judgment
entered following a bench trial before Magistrate Judge Leslie
E. Kobayashi.1 Mr. MacDonald seeks reversal on the ground
that the trial court erred in concluding that the failure of
Appellee Kahikolu, Ltd. (“Kahikolu”), doing business as
Frogman Charters, to comply with the United States Coast
Guard regulations codified at 46 C.F.R., Ch. I, Subch. V, Pt.
197 (“Coast Guard regulations”) did not establish negligence
per se liability under the Jones Act, 46 App. U.S.C. § 688. We
vacate the judgment and remand for the limited purpose of
having the district court make a finding as to whether
Kahikolu’s failure to provide an operations manual to the
person-in-charge of the Frogman II vessel, as required the
Coast Guard’s scuba diving regulations, played any part in
producing the injury, no matter how slight, to Mr. MacDon-
ald.
I
Kahikolu conducts whale watching, scuba, and snorkel tour
boat cruises off the coast of Maui, Hawaii. Mr. MacDonald
worked as a deck hand on Kahikolu’s Frogman II, and was
periodically required to do free dives to retrieve mooring lines
that had sunk to the sea floor. Free dives are underwater dives
on a single breath of air, without the use of scuba gear, sur-
face supplied air, or surface supplied mixed-gas equipment.
During such a free dive, Mr. MacDonald sustained an injury
to his left ear when he attempted to equalize the hyperbaric
pressure on descent.2 The injury and subsequent treatment left
1
The parties consented to the conduct of the trial by a United States
Magistrate judge pursuant to 28 U.S.C. § 636(c)(1).
2
The pressure to the ear drum which results from a free dive is equal-
ized by holding the nose while the diver blows gently against it. Injury
occurs if the diver blows too forcefully or too long.
MACDONALD v. KAHIKOLU LTD. 3597
Mr. MacDonald with permanently severe to profound hearing
loss and related maladies.
Kahikolu did not provide an operations manual to the
person-in-charge of commercial diving operations, as required
by 46 C.F.R. § 197.420(a)(1), prior to Mr. MacDonald’s free
dive.3
Mr. MacDonald filed this action in the district court. He
alleged three causes of action. He claimed that Kahikolu vio-
lated the Jones Act by failing to provide him with a safe,
proper, and suitable work environment. He also sought dam-
ages on the ground that the vessel was not seaworthy. In his
third cause of action, he asserted that he was entitled to main-
tenance and care because of Kahikolu’s negligence and its
failure to provide a vessel that was fit for its intended use.
At trial, each side presented an expert to testify regarding
the cause of Mr. MacDonald’s injury. Mark Almaraz testified
on behalf of Mr. MacDonald that the failure to provide an
operations manual, as required by the Coast Guard’s scuba
diving regulations, caused the injury. He opined that the pres-
ence of some safe dive practices for scuba divers would have
improved the “safety culture” of Kahikolu’s operations. Mr.
Almaraz, also testified that he lacked any expertise about free
diving, free diving training, or free diving safety issues. He
stated that he was unaware of any Coast Guard regulations
that apply to free divers. Mr. Almaraz further testified that
free diving is an inherently dangerous activity and that a
proper safe practices manual would not permit a seaman to
free dive more than twenty feet.
3
Section 197.420(a)(1) provides as follows:
(a) The diving supervisor shall —
(1) Provide an operations manual to the person-in-charge
prior to the commencement of any diving operation.
3598 MACDONALD v. KAHIKOLU LTD.
Kahikolu presented Glennon Gingo as its expert. Mr. Gingo
is an accomplished free diver. He has worked as a free diver
and has coached the U.S. national free diving team in compe-
tition. He is the author of the YMCA’s free diving training
manual. He testified that free diving is a safe activity, easily
learned with or without formal training. He also stated the
most important part of learning to equalize pressure is by trial
and error in the water.
The record shows that Mr. MacDonald was an experienced
free diver before he was hired by Kahikolu. He worked
eighty-six days before his injury and regularly made free
dives to depths of thirty, forty, and fifty feet without ear pain
or other ear related injury. He also knew how to equalize pres-
sure in his ears before his injury.
After weighing the conflicting evidence, the district court
found that Mr. MacDonald was an accomplished free diver
who knew how to equalize the pressure in his ears safely
through making frequent dives and talking to other free
divers. The court further found that prior to Mr. MacDonald’s
injury, Kahikolu’s employees had made thousands of free
dives without injury from pressure in their ears. Based on
these findings, the court concluded that “this is not a case
where Plaintiff was performing inherently dangerous work, or
where Plaintiff had no diving knowledge or experience.” The
court also found that “the evidence conclusively establishes
that free diving is not inherently dangerous.” The district
court determined that negligence per se could not be estab-
lished by Kahikolu’s violation of the Coast Guard regulations
because those regulations apply only to commercial scuba
divers and not to employees who perform free dives.
The court concluded that by giving him inadequate training
for doing free dives, Kahikolu had failed to provide Mr. Mac-
Donald with a safe work environment. It held, however, that
Kahikolu was not negligent because Mr. MacDonald failed to
demonstrate that Kahikolu had notice of an unsafe condition.
MACDONALD v. KAHIKOLU LTD. 3599
The court denied Mr. MacDonald’s claim for unseaworthi-
ness, finding that the dive procedure and crew were reason-
ably fit for their intended purpose.
Mr. MacDonald has timely appealed from the district
court’s final judgment. In his opening brief, he expressly lim-
ited his appeal to his claim that the district court erred in hold-
ing that he failed to demonstrate per se liability under the
Jones Act. We have jurisdiction over this appeal pursuant to
28 U.S.C. § 1291.
II
A
The district court concluded that Mr. MacDonald failed to
demonstrate that Kahikolu’s violation of Coast Guard regula-
tions constituted negligence per se, stating that “[b]ecause the
Court finds that Plaintiff was a free diver and not a scuba
diver, Defendant’s violation of the Coast Guard diving regula-
tions cannot be used to establish negligence per se.” The dis-
trict court also concluded that “[a] plaintiff under the Jones
Act must establish the elements of negligence — duty,
breach, notice and causation — which Plaintiff has here failed
to do.” In reaching its conclusion, the district court relied in
part upon this court’s statement of the elements of negligence
per se under the Jones Act based on a regulation violation in
Fuszek v. Royal King Fisheries, Inc., 98 F.3d 514, 516 (9th
Cir. 1996).
[1] Mr. MacDonald contends that the district court erred in
concluding that this court held in Fuszek that to establish neg-
ligence per se, a seaman in a Jones Act case must demonstrate
that he or she was a member of the intended beneficiaries of
a statute or Coast Guard regulation. We agree. The question
whether the vessel, its owner, or operator was negligent per
se was not addressed in Fuszek. The issue before this court in
Fuszek was whether the district court erred in reducing the
3600 MACDONALD v. KAHIKOLU LTD.
seaman’s award by 25% because his injuries were partially
due to his negligence.
We stated in Fuszek that
[i]n these consolidated appeals we are called upon to
determine whether section 3 of the Federal Employ-
ers Liability Act (“FELA”), 45 U.S.C. § 53, over-
rides the longstanding maritime doctrine of
comparative fault in a situation in which a ship’s
violation of a safety regulation contributed to a sea-
man’s injuries. Under the facts of this case, we hold
that FELA precludes the reduction of damages on
the ground of comparative fault.
Fuszek, 98 F.3d at 515.
[2] In Fuszek, the parties conceded that a Coast Guard reg-
ulation requiring all exposed machinery on board a vessel to
have suitable hand covers was applicable under the facts pres-
ented at trial. Id. at 516. It was also “undisputed that Fuszek
was injured by exposed machinery on board a vessel lacking
a suitable hand cover. . . .” Id. at 516-17. We relied on the
Fifth Circuit’s decision in Smith v. Trans-World Drilling Co.,
772 F.2d 157, 160 (5th Cir. 1985) for the principle that a vio-
lation of a Coast Guard regulation “could amount to negli-
gence per se under the Jones Act . . . .” Id. at 517. We stated
in Fuszek that the holding in Smith — that the FELA pre-
cludes a reduction of a damages award for comparative negli-
gence — was “consistent with our decision in Kopczynski v.
The Jacqueline, 742 F.2d 555 (9th Cir. 1984),” where “we
noted in passing that the seaman could have recovered in full
(i.e., without any reduction for comparative fault) if he had
been injured while at sea and his injuries had been due to neg-
ligence attributable to the violation of a Coast Guard regula-
tion . . . .” Id. Thus, in Fuszek, we held for the first time, that
a seaman whose injuries were caused by a violation of a stat-
ute or a safety regulation could recover damages under the
MACDONALD v. KAHIKOLU LTD. 3601
Jones Act, and this recovery could not be reduced under the
comparative fault defense. Id.
B
Mr. MacDonald argues that we must reverse because the
district court failed to apply the elements of “per se liability”
under the Jones Act set forth in Kernan v. American Dredging
Co., 355 U.S. 426 (1958). Mr. MacDonald correctly notes that
the district court, and this court, are compelled to obey the
decisions of our nation’s highest court. See Hart v. Massa-
nari, 266 F.3d 1155, 1171 (9th Cir. 2001) (“Obviously, bind-
ing authority is very powerful medicine. A decision of the
Supreme Court will control that corner of the law unless and
until the Supreme Court itself overrules or modifies it. Judges
of the inferior courts may voice their criticism, but follow it
they must.”).
[3] We agree with Mr. MacDonald that the district court
erred in failing to “consider Kernan at all.” In Kernan, the
Supreme Court held that under the Jones Act, a violation of
a statute or a Coast Guard regulation that causes the injury or
death of an employee creates liability “in the absence of any
showing of negligence . . . .” 355 U.S. at 431. The Court
instructed that the general tort doctrine that an employer is lia-
ble for violation of “a statutory duty only where the injury is
one which the statute was designed to prevent” is inapplicable
under the Jones Act. Id. at 432.
The Court summarized its holding as follows:
The FELA and the Jones Act impose upon the
employer the duty of paying damages when injury to
the worker is caused, in whole or in part, by the
employer’s fault. This fault may consist of a breach
of the duty of care, analogous but by no means iden-
tical to the general common-law duty, or of a breach
of some statutory duty.
3602 MACDONALD v. KAHIKOLU LTD.
Id. (emphasis added).
[4] Thus, under the Jones Act, the common-law concepts of
foreseeability and risk of harm are not applicable where the
employer violates a federal statute or a Coast Guard regula-
tion, if such conduct in whole or in part caused injury. We
held in Oglesby v. Southern Pacific Trans. Co., 6 F.3d 603
(1993) that “ ‘an employee is entitled to recover damages if
the employer’s negligence played any part in producing the
injury, no matter how slight.’ ” Id. at 609 (quoting Taylor v.
Burlington N. R.R., 787 F.2d 1309, 1313 (9th Cir. 1986)
(emphasis in original)).
In this matter, it is undisputed that Kahikolu failed to com-
ply with the Coast Guard’s Commercial Diving Regulations
that it make an operations manual available at a dive location
to the person-in-charge and all members of the scuba dive
team. Mr. MacDonald contends that his expert, Mr. Almaraz,
established a causal connection when he testified that free
dives to depths below twenty feet are unsafe and that a failure
to have a scuba dive operations manual on board contributed
to Mr. MacDonald’s injury because such a manual “identifies
any potential unsafe practices.”
The district court judge credited Mr. Gingo’s testimony
over that of Mr. Almaraz in determining that dives to depths
below twenty feet are not unsafe and that free diving is not
inherently dangerous. Evidence presented by Kahikolu sup-
ports the district court’s findings that safely equalizing pres-
sure is an easily learned skill which does not necessarily
require formal training, and that Mr. MacDonald was an
accomplished free diver who was familiar with and knew how
to equalize pressure in his ears.
[5] The record shows that the commercial diving regula-
tions expressly applied only to persons using underwater
breathing apparatus and not to free divers. It is not clear, how-
ever, whether the district court applied the appropriate causa-
MACDONALD v. KAHIKOLU LTD. 3603
tion standard in determining that Kahikolu was not liable for
Mr. MacDonald’s injuries. Accordingly, we vacate the judg-
ment and remand with instructions that the district court
determine whether the failure of Kahikolu to comply with
Coast Guard regulations played any part, “ ‘even the sligh-
test,’ ” in producing Mr. MacDonald’s injuries and enter a
new judgment in accordance with that finding. Oglesby, 6
F.3d at 607 (quoting Bertrand v. Southern Pac. Co., 282 F.2d
569, 573 (9th Cir. 1960)).
VACATED AND REMANDED. Each side shall bear its
own costs.