Cruise Ship Law

CHRISTOPHER MACDONALD, Plaintiff-Appellant, v. KAHIKOLU LTD., dba Frogman Charters, Defendant-Appellee.

No. 04-15979
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
442 F.3d 1199; 2006 U.S. App. LEXIS 7901
March 31, 2006, Filed

PROCEDURAL POSTURE: Plaintiff employee challenged the decision entered by the United States District Court for the District of Hawaii that found in favor of defendant employer in the employee's action that alleged a violation of the Jones Act, 46 U.S.C.S. App. § 688, by failing to provide him with a safe, proper, and suitable work environment. He also sought damages on the ground that the vessel was not seaworthy.

OVERVIEW: The employer conducted whale watching, scuba, and snorkel tour boat cruises, and the employee worked as a deck hand on the employer's boat. The employee was periodically required to do free dives to retrieve mooring lines that had sunk to the sea floor. During such a free dive, the employee sustained an injury to his left ear when he attempted to equalize the hyperbaric pressure on descent. The injury and subsequent treatment left the employee with permanently severe to profound hearing loss and related maladies. Following a bench trial, the employee sought reversal on the ground that the trial court erred in concluding that the employer's failure to comply with the United States Coast Guard regulations did not establish negligence per se liability under the Jones Act. The appellate court ordered the judgment to be vacated and remanded for the limited purpose of having the district court make a finding as to whether the employer's failure to provide an operations manual to the person-in-charge of the vessel, as required the Coast Guard's scuba diving regulations, played any part in producing the injury, no matter how slight, to the employee.

OUTCOME: The court vacated the district court's order and remanded.