Ehart v. Lahaina Divers, Inc.

92 F.4th 844

William McMein EHART, Jr., Individually and as Personal Representative ofthe Estate of Maureen Anne Ehart, Deceased, Plaintiff-Appellee, v. LAHAINA DIVERS, INC.; Cory Dam, Defendants-Appellants,andKaitlin Miller; Julianne Cricchio;Lahaina Dive & Surf LLC, Defendants.

No. 22-16149

United States Court of Appeals, Ninth Circuit

Argued and Submitted February 17, 2023 Honolulu, Hawaii

Filed February 8, 2024

Appeal from the United States District Court for the District of Hawaii, Susan O. Mollway, District Judge, Presiding, D.C. No. 1:21-cv-00475-SOM-KJM

Ralph J. O'Neill (argued), Jamie C.S. Madriaga, and Matthew A. Hemme, MacDonald Rudy O'Neill & Yamauchi LLP, Honolulu, Hawaii, for Defendants-Appellants.

John R. Hillsman (argued), McGuinn Hillsman & Palefsky, San Francisco, California, for Plaintiff-Appellee.

Mark M. Williams, Law Office of Mark M. Williams, Pasadena, California, for Amicus Curiae Daniel W. Bader, dba Sea Landing Dive Center.

Brian O. Felder, Wilson Elser Moskowitz Edelman & Dicker LLP, Los Angeles, California, for Amicus Curiae Marine Recreation Association.

Charles D. Naylor, Law Offices of Charles D. Naylor, Long Beach, California; Michael F. Sturley, University of Texas Law School, Austin, Texas; Michael A. Kelly, Richard H. Schoenberger, Matthew D. Davis, Spencer J. Pahlke, and Joseph

Nicholson, Walkup Melodia Kelly & Schoenberger PC, San Francisco, California; Gretchen M. Nelson and Carlos F. Llinas Negret, Nelson & Fraenkel LLP, Los Angeles, California; Douglas T. Moore, The Law Offices of Douglas Thomas Moore LLC, Honolulu, Hawaii; Preston Easley, Law Offices of Preston Easley APC, San Pedro, California; Joseph S. Stacey, James P. Jacobsen, and Nigel T. Stacey, Stacey & Jacobsen LLP, Seattle, Washington; Lyle C. Cavin, Jr., Law Offices of Lyle C. Cavin, Jr. & Associates, Oakland, California; Daniel C. Dziuba, Tichenor Dziuba Law Office, Portland, Oregon; Kurt Micklow and Edward M. Bull, III, Brodsky Micklow Bull & Weiss LLP, Oakland, California; Joel Krissman, Krissman & Silver LLP, Long Beach, California; for Amici Curiae Injured Vessel Passengers and Surviving Family Members and Personal Representatives of Fatally Injured Vessel Passengers.

Before: Carlos T. Bea, Daniel P. Collins, and Kenneth K. Lee, Circuit Judges.

Opinion by Judge Bea;

Dissent by Judge Collins

OPINION

BEA, Circuit Judge:

The question in this case is whether 46 U.S.C. § 30527(a),¹ which prohibits certain liability waivers regarding "vessel[s] transporting passengers between ports in the United States, or between a port in the United States and a port in a foreign country," applies when a vessel transports passengers away from and back to a single port in the United States without stopping at any other port. We hold that it does not. The plain meaning of "between ports in the United States" is between at least two separate ports in the United States, and § 30527(a) therefore does not apply to liability waivers as to vessels that transport passengers away from and back to a single port without stopping at any other port.

I. BACKGROUND²

On September 14, 2021, Maureen Anne Ehart and her husband, William McMein Ehart, Jr., went on a chartered scuba and snorkeling tour to Molokini Crater. Molokini Crater is a crescent-shaped volcanic atoll located about 2.5 miles off the south coast of Maui, Hawaii. The Eharts boarded the Dauntless—a boat owned by Lahaina Divers, Inc.—at Lahaina Harbor and traveled on the boat to Molokini Crater along with 14 other paying passengers and a three-person crew. The crew included the master of the Dauntless, Cory Dam, and two scuba instructors, Kaitlin Miller and Julianne Cricchio.

Prior to the excursion, the Eharts had each signed a separate waiver document, which stated: "THIS IS A RELEASE OF YOUR RIGHTS TO SUE LAHAINA DIVE & SURF, LLC, AND/OR LAHA[I]NA DIVERS INC. (LDS/LDI), AND ITS OWNERS, EMPLOYEES, AGENTS AND ASSIGNS FOR PERSONAL INJURIES OR WRONGFUL DEATH THAT MAY [OCCUR] DURING THE FORTHCOMING DIVE ACTIVITY AS A RESULT OF THE INHER[ENT ]RISKS ASSOCIATED WITH SCUBA DIVING AND/OR SNORKE[LI]NG OR AS A RESULT OF NEGLIGENCE." The waiver then instructed participants to check boxes. Maureen Ehart checked the following boxes (William Ehart checked all of the boxes):

(Check off each of the following sections as you read them. If you do not scuba dive, check only those items marked by the * symbol.)

[ ] 1. I acknowledge that I am a certified diver trained in safe diving practices

[v] * 2. I am aware of the risks inherent in this scuba diving and/or snorkeling and I accept these risks

[ ] 3. I affirm that I am in good mental and physical fitness for diving, and that I am not under the influence of alcohol nor am I under the influence of drugs that are contraindicatory to scuba diving. If I am taking medication, I affirm that I have seen a physician and have approval to scuba dive while under the influence of the medication/drugs

[ ] 4. I am aware of the dangers of breath holding white scuba diving, and will not hold LDS/LDI and related entities (such as employees, instructors, certified assistants, boat operators, or diver agencies) responsible if I am injured doing so.

[ ] 5. I am aware that I will be expected to scuba dive with a buddy, and it will he our responsibility to plan a dive allowing for our diving limitations and the prevailing water conditions. I will not hold the above listed businesses or individuals responsible for my failure to safely plan my dive.

[ ] *6. I will inspect all of my equipment prior to the activity and will notify the above listed businesses and/or individuals if any of my equipment is not working properly. I will not hold the above listed businesses or individuals responsible for my failure to inspect my equipment prior to scuba diving or snorkeling.

[v] * 7. I acknowledge that I am physically fit to scuba dive and/or snorkel, and I will not hold the above listed businesses or individuals responsible if I am injured as a result of heart, lung, ear, or circulatory problems or other illnesses that occur while scuba diving and/or snorkeling.

[v] 8. I understand that even though I follow all of the appropriate dive practices, there is still some risk of my sustaining decompression sickness, embolism or other hyperbaric injuries, and I expressly assume the risk of said injuries.

[v] 9. I also expressly assume the risk and accept the responsibility to plan my scuba dive and dive my plan.

[v] 10. I also understand that scuba diving and/or snorkeling are physically strenuous activities and that I will be exerting myself during this diving excursion, and then if I am injured as a result of heart attack, panic, hyperventilation, etc, that I expressly assume the risk of said injuries and that I will not hold the above listed businesses or individuals responsible for the same.

[v] 11. I also understand that on this open-water diving trip. I will be at a remote site and that there will not be immediate medical care or hyperbaric care available to me. and I expressly assume the risk of diving in such a remote spot.

[v] 12. IT IS MY INTENTION BY THIS INSTRUMENT TO EXEMPT. RELEASE AND HOLD HARMLESS LDS/LDI AND ALL RELATED ENTITIES AS DEFINED ABOVE FROM ALL LIABILITY WHATSOEVER FOR PERSONAL INJURY, PROPERTY

DAMAGE. AND WRONGFUL DEATH CAUSED BY NEGLIGENCE. I HAVE FULLY INFORMED MYSELF OF THE CONTENTS OF THIS INFORMATION AND RELEASE BY READING IT BEFORE I SIGNED IT ON BEHALF OF MYSELF AND MY HEIRS.

Below the questionnaire, the Eharts each again signed the waiver.³

The Dauntless traveled across the water from Lahaina Harbor to Molokini Crater, where it tied up to a mooring buoy. At Molokini Crater, the scuba instructors (Miller and Cricchio) escorted two groups of divers on separate scuba tours. Instead of joining the scuba tour members, Maureen Ehart and two other passengers snorkeled separately from the scuba tours in the waters of the Crater. Dam remained on the Dauntless to maintain an anchor watch, serve as a lookout, monitor the weather, supervise the passengers' snorkeling activities, and act as a lifeguard, among other duties.

The winds, waves, and currents inside the Crater increased, and the two other snorkelers who had gone with Maureen returned to the Dauntless, while Maureen stayed in the water. Dam, preoccupied by other duties, "lost track of [Maureen] and permitted her to drift away unsupervised and unseen." When Dam realized he had lost sight of Maureen, he did not recall the scuba tour members, call the Coast Guard, or conduct an immediate search; instead, he waited for both scuba tours to return to the boat and then ordered Miller and Cricchio to search for Maureen. This search, which lasted approximately 30 minutes, was "poorly planned, improperly equipped, and ultimately unsuccessful." Dam eventually called for assistance from the Coast Guard and local authorities. The Coast Guard and Maui County Emergency Services searched for Maureen for three days, but she was never found.

Plaintiff filed an action under admiralty jurisdiction in the District of Hawaii asserting six causes of action against Lahaina Divers and Dam ("Defendants")⁴: (1) a wrongful death claim based on gross negligence; (2) a wrongful death claim based on simple negligence; (3) a survival claim based on gross negligence; (4) a survival claim based on simple negligence; (5) a reckless infliction of emotional distress claim; and (6) a negligent infliction of emotional distress claim.

In their Answer to the Complaint, Defendants asserted waiver and release as an affirmative defense.⁵ Plaintiff moved to strike the defense, arguing that the liability waiver signed by the Eharts was void under 46 U.S.C. § 30527(a) and Hawaii Revised Statute ("HRS") § 663-1.54. Defendants opposed the motion on the grounds that (1) 46 U.S.C. § 30527(a) does not apply here because the Dauntless was not "transporting passengers between ports in the United States, or between a port in the United States and a port in a foreign country";...