Of Counsel:
CRONIN, FRIED, SEKIYA,
KEKINA & FAIRBANKS
DAVID L. FAIRBANKS 735-0
WAYNE K. KEKINA 780-0
HOWARD G. McPHERSON 5582-0
600 Davies Pacific Center
841 Bishop Street
Honolulu, Hawaii 96813
Telephone: (808) 524-1433
E-mails: dfairbanks@croninfried.com;
wkekina@croninfried.com;
hmcpherson@croninfried.com
Attorneys for Plaintiff Mary Strickert
McGUINN, HILLSMAN & PALEFSKY
JOHN R. HILLSMAN Pro Hac Vice
535 Pacific Avenue
San Francisco, California 94611S
Telephone: (415) 421-9292
E-mail: jrhillsman@mhpsf.com
Attorneys for Plaintiff Sara Spreen
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MARY M. STRICKERT,
individually, as Personal
Representative of the Estate of Mark
David Strickert, deceased, and SARA
SPREEN, as the duly appointed
Guardian ad litem for C.H.S., a
minor, and C.S.S., a minor,
Plaintiffs,
vs.
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CIVIL NO. 14-00513 DKW-RLP
PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
ON PRE-ACCIDENT RELEASE OF
LIABILITY; MEMORANDUM IN
SUPPORT OF MOTION;
CERTIFICATE OF SERVICE
Trial: June 26, 2017
(Caption Continued on Next Page)
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CHARLES C. NEAL; MOLOKINI
DIVERS, INC.; NEALCO
INTERNATIONAL, LLC dba
SCUBA SHACK; JEFFREY
BARTUNEK; and ALANA OSAKI,
Defendants.
_______________________________
ALANA DOHNER OSKI,
Plaintiff,
CHARLES C. NEAL; JEFFREY
BARTUNEK; MOLOKINI DIVERS,
INC.; NEALCO INTERNATIONAL,
LLOC dba SCUBA SHACK; M/V
DOUBLE SCOOP,
Defendants.
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CIVIL NO. 15-00409 DKW-RLP
PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY
JUDGMENT ON PRE-ACCIDENT RELEASE OF LIABILITY
Pursuant to Rules 16 and 56(a), Fed.R.Civ.P., and LR 56.1, Plaintiffs Mary
M. Strickert and Sara Spreen respectfully move the Court for an Order determining
that the PADI DSD Release Agreement and Molokini Divers Release Agreement
asserted in this case as defenses are unenforceable as a matter of law.
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This Motion is based on the attached Memorandum, the concurrently-filed
Plaintiffs’ Concise Statement of Facts with accompanying Declaration and
Exhibits, and upon the record and file herein.
Dated: Honolulu, Hawaii, January 19, 2017.
Respectfully submitted,
CRONIN FRIED SEKIYA KEKINA & FAIRBANKS
and
McGUINN, HILLSMAN & PALEFSKY
By: /s/ Howard G. McPherson
Howard G. McPherson
Attorneys for Plaintiff MARY STRICKERT
Attorneys for Plaintiff SARA SPREEN
Case 1:15-cv-00409-DKW-RLP Document 63 Filed 01/19/17 Page 3 of 3 PageID #: 746
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MARY M. STRICKERT,
individually, as Personal
Representative of the Estate of Mark
David Strickert, deceased, and SARA
SPREEN, as the duly appointed
Guardian ad litem for C.H.S., a
minor, and C.S.S., a minor,
Plaintiffs,
vs.
CHARLES C. NEAL; MOLOKINI
DIVERS, INC.; NEALCO
INTERNATIONAL, LLC dba
SCUBA SHACK; JEFFREY
BARTUNEK; and ALANA OSAKI,
Defendants.
_______________________________
ALANA DOHNER OSKI,
Plaintiff,
CHARLES C. NEAL; JEFFREY
BARTUNEK; MOLOKINI DIVERS,
INC.; NEALCO INTERNATIONAL,
LLOC dba SCUBA SHACK; M/V
DOUBLE SCOOP,
Defendants.
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CIVIL NO. 14-00513 DKW-RLP
MEMORANDUM IN SUPPORT OF
MOTION
CIVIL NO. 15-00409 DKW-RLP
Case 1:15-cv-00409-DKW-RLP Document 63-1 Filed 01/19/17 Page 1 of 26 PageID #:
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CONTENTS
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES………………………………………....ii
I. SUMMARY OF ARGUMENT………………………………………1
II. STANDARD OF REVIEW…………………………………………..2
III. ARGUMENT…………………………………………………………3
A. The PADI DSD Release Agreement is Unenforceable
Because The Court has Already Determined it “Does
Unequivocally Indicate it Covers the Incident at Issue” ..……..3
B. The Molokini Divers Release Agreement is also
Ambiguous and Therefore Unenforceable…...………………..8
C. The Exculpatory Provisions are Substantively Barred by
Federal and Hawaii Statutes………………………………….12
IV. CONCLUSION…………………………………………………......20
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TABLE OF AUTHORITIES
CASES PAGES
Airport Car Rental Antitrust Litigation,
474 F. Supp. 1072, 1109 (N.D.Cal. 1979)……………………………... 2
Anzai v. Chevron Corp.,
158 F.Supp.2d 1180, 1183 (D.Haw. 2001)……………………………….. 2
Commercial Union Ins. Co. v. Blue Water Yacht Club Assoc.,
239 F.Supp.2d 316, 322 (E.D.N.Y. 2003)…………………………....6, 10, 11
Dann Marine Towing, LLC v. General Ship Repair Corp.,
31 F.Supp.3d 743, 746 (D. Md. 2014)…………………………………3, 5, 10
Disandro v. Makahuena Corp.,
588 F.Supp. 889, 892 (D.Haw. 1984)……………………………………... 2
East River S.S. Corp. v. Delaval, Inc.,
476 U.S. 858, 864 (1986)…………………………………………………..3, 5
Edward Leasing Corp. v. Uhlig & Assoc., Inc.,
785 F.2d 877, 889 (11th Cir. 1986)………………………………………... 4
Fitzgerald Marine & Repair, Inc.,
619 F.3d 851, 858 (8th Cir. 2010)…………………………………………. 3
Ghotra v. Bandila Shipping, Inc.,
113 F.3d 1050, 1054-1055 (9th Cir. 1997)……………………………….. 4
Hambrook v. Smith,
2015 WL 3480887 (D.Haw.)……………………………………………… 17
Hambrook, v. Smith,
2016 WL 4408991 (D. Haw.)…………………………………………...passim
Hode v. S.N.C. Achille Lauro,
858 F.2d 905, 915 (3rd Cir. 1988)……………………………………….... 13
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749
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In re Pacific Adventures,
5 F.Supp.2d 874 (D.Haw. 1998)………………………………………..passim
In re Wechsler,
121 F.Supp.2d 404, 435 (D. Del. 2000)………………………………...........4, 10
Jig the Third Corp. v. Puritan Marine Ins. Underwriters Corp.,
519 F.2d 171, 178 (5th Cir. 1975)………………………………………..… 5
King v. CJM Country Stables,
315 F. Supp.2d (D. Haw. 2004)……………………………..............….…. 20
Malcak v. Cooney,
93 F.R.D. 830, 831 n. 1 (N.D. Ill. 1982)………………………….............. 2
MP Leasing Corp. v. Colonnas Shipyard,
2009 WL 2581575 (E.D.Va.) at *8………………………………………... 5
Roane v. Greenwich Swim Committee,
330 F.Supp.2d 306, 322 (S.D.N.Y. 2004)……………………………..5, 6, 12
Sea-Land Services. v. Gaudet,
414 U.S. 573, 588 (1974)………………………………………….……… 4
Stevens Institute of Technology v. U.S.,
396 F.Supp. 986, 988-989 (S.D.N.Y. 1975)………………………………. 6
Wallis v. Princess Cruises, Inc.,
306 F.3d 827, 835 (9th Cir. 2002)…………………………………………. 13
Yamaha Motor Corp., U.S.A. v. Calhoun,
516 U.S. 199, 206 (1996)…………………………………………3, 16, 17, 18
STATUTES
46 U.S.C. § 183c...…………………………………………………………….. 12
46 U.S.C. App. § 188………………………………………………………..13, 14
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46 U.S.C. § 30509…………………………………………………………..14, 17
RULES
Fed.R.Civ.P. 56(a)…………………………………………………………….. 2
TREATISES
3 Moore’s Federal Practice (3d. ed., 2010) § 16.02…………………….…...2, 16
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I. SUMMARY OF ARGUMENT
This Motion first addresses an issue left unresolved by the Court in a prior
proceeding: whether the PADI DSD Release Agreement form signed by Plaintiff
Mary Strickert’s deceased husband Mark Strickert is enforceable as a defense to
Plaintiffs’ maritime negligence claims. See, ECF No. 71, Order Denying
Defendants’ Motion for Summary Judgment, 11/30/15, at 11-16 (concluding
questions of fact precluded summary judgment for Defendants).
In this Motion, Plaintiffs seek partial summary judgment in their favor on
this issue, on two separate grounds:
(1) The Court previously determined that material provisions of the form
are ambiguous, see, id. at 13-16 (e.g. at 13: “there are several ambiguities as to its
intent and scope”), and under well-established contract law principles, applicable
in admiralty, the ambiguities of those provisions render them unenforceable;
(2) Under the existing law prevailing in this District, enforceability of the
PADI DSD Release Agreement is substantively barred by both federal maritime
and Hawaii state statutes, whether they are ambiguous or not.
In addition, Plaintiffs seek partial summary judgment in their favor, on the
same two grounds, with regard to enforceability of the Molokini Divers Release
Agreement discussed by the Court in the prior Order cited above. See, ECF No. 71
at 14 n.3 (discussing fact Mr. Strickert did not initial a material provision).
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II. STANDARDS OF REVIEW
“Rule 16 is explicitly intended to encourage active judicial management of
the case development process and of trial in most civil actions.” 3 Moore’s Federal
Practice (3d. ed., 2010) § 16.02, p. 16-19. “One of the purposes of Rule 16 is to
permit the Court to ‘make rulings on questions of law in order to facilitate
preparation for trial.’” In re Airport Car Rental Antitrust Litigation, 474 F. Supp.
1072, 1109 41 (N.D.Cal. 1979); see also Malcak v. Cooney, 93 F.R.D. 830, 831 n.
1 (N.D. Ill. 1982) (“a ruling on a single issue of law”).
Summary judgment is appropriate where the materials on file show that
“there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a).
Summary judgment is available “to decide [certain] purely legal issues”
even if the ruling “will not entirely dispose of any one claim.” Anzai v. Chevron
Corp., 158 F.Supp.2d 1180, 1183 (D.Haw. 2001) (brackets by the court), quoting
Disandro v. Makahuena Corp., 588 F.Supp. 889, 892 (D.Haw. 1984).
Interlocutory adjudications on specific issues of law are thus available under
Rule 56 as “partial summary judgments.” Fed.R.Civ.P. 56(a); see generally, 11
Moore’s Federal Practice, supra, at §§ 56.02[4] and 56.122[2] (“The freedom to
use summary judgment procedure [in this way] is an important feature of Rule 56,
making it a much more useful case management device[.])”
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“Interpretation of a maritime contract's terms is a matter of law.” Dann
Marine Towing, LLC v. General Ship Repair Corp., 31 F.Supp.3d 743, 746 (D.
Md. 2014), citing In re Fitzgerald Marine & Repair, Inc., 619 F.3d 851, 858 (8th
Cir. 2010) (“Contract interpretation, including construction of indemnity clauses
and whether a contract is ambiguous, is a matter of law[.]”) (citations omitted).
III. ARGUMENT
A. THE PADI DSD RELEASE AGREEMENT IS UNENFORCEABLE
BECAUSE THE COURT HAS ALREADY DETERMINED IT “DOES
UNEQUIVOCALLY INDICATE IT COVERS THE INCIDENT ISSUE” 1
The Court previously determined that the facts of this case satisfy the legal
test for admiralty subject matter jurisdiction. ECF No. 71 at 11 (“As such, the
Court determines that the application of admiralty jurisdiction is proper”).
“‘With admiralty jurisdiction,” we have often said, “comes the application of
substantive admiralty law.’” Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S.
199, 206 (1996) (quoting East River S.S. Corp. v. Delaval, Inc., 476 U.S. 858, 864
(1986). And this is true however and wherever the case is filed:
[A] plaintiff with in personam maritime claims has three choices: He
may file suit in federal court under the federal court’s admiralty
jurisdiction, in federal court under diversity jurisdiction if the parties
are diverse and the amount in controversy is satisfied, or in state court.
…. The same substantive law pertains to the claim regardless of the
forum, a type of ‘reverse-Erie’ doctrine to ensure the uniform
application of admiralty law.
1 See ECF No. 71, supra, at 13.
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Ghotra v. Bandila Shipping, Inc., 113 F.3d 1050, 1054-1055 (9th Cir. 1997)
(citations omitted). Furthermore, it is “the humanitarian policy of the maritime law
to show ‘special solicitude’ for those who are injured within its jurisdiction.”
Sea-Land Services. v. Gaudet, 414 U.S. 573, 588 (1974) (citations omitted).
In addition, in admiralty “Courts give full effect to exculpatory clauses only
‘[w]hen the contractual language is clear and unequivocal and plainly indicates the
intentions of the parties[.]’” ECF No. 71, supra, at 12-13 (brackets by the Court),
quoting In re Wechsler, 121 F.Supp.2d 404, 435 (D. Del. 2000).
As the Court explicitly noted in its prior ruling, the form language asserted
by Defendants does not meet this threshold legal test: “Contrary to Defendants'
assertions, the PADI DSD Release Agreement does not unequivocally indicate that
it covers the incident at issue. Rather, there are several ambiguities as to its intent
and scope[.]” ECF No. 71 at 13 (emphasis added).
It follows that the PADI DSD Release Agreement is unenforceable, as
matter of law, simply because whatever the drafter’s intended meaning was for the
ambiguous language at issue, it is not unequivocally clear.
Several courts applying this principle have reached the same conclusion.
Edward Leasing Corp. v. Uhlig & Assoc., Inc., 785 F.2d 877, 889 (11th Cir. 1986)
(“Courts will not enforce ‘red letter clauses’ unless the contractual language at
issue is clear and unequivocal and clearly indicates the intentions of the parties”)
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(emphasis added) (affirming district court’s refusal to enforce limitation of liability
clauses in marine engine repairer’s contract); Jig the Third Corp. v. Puritan
Marine Ins. Underwriters Corp., 519 F.2d 171, 178 (5th Cir. 1975) overruled on
other grounds by East River, supra, (“[W]e do not believe that the purported
language of disclaimer adequately supports Atlantic Marine’s contentions . . . it is
certainly not clear and unequivocal . . . . We conclude that Atlantic Marine’s
contractual defense must fail”) (emphasis added) (affirming judgment for
shipowner against shipbuilder for loss of vessel at sea); Dann Marine, supra, 31
F.Supp.3d at 747-748 (“Even if the clause could be considered ‘ambiguous,’ that
ambiguity would prevent the clause from clearly and unequivocally limiting GSR’s
liability to Dann Marine”) (emphasis added) (granting vessel owner’s motion for
partial summary judgment, holding exculpatory clause in ship repair contract
unenforceable); MP Leasing Corp. v. Colonnas Shipyard, 2009 WL 2581575
(E.D.Va.) at *8 (“The portion of the red-letter clause Defendant relies on does not
unambiguously or unequivocally establish that the consequential damages
limitation applies to damages that arise out of breach of contract. . . . Accordingly,
Plaintiffs’ pursuit of damages, consequential or otherwise, that arise out of
Defendant’s breach of contract are not precluded by the red-letter clause”)
(emphasis added) (awarding judgment for Plaintiffs in ship repair dispute); Roane
v. Greenwich Swim Committee, 330 F.Supp.2d 306, 322 (S.D.N.Y. 2004) (“The
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disclaimer form signed by Roane does not state unequivocally that GSC,
McDermott, or any other defendant is relieved of its own negligence . . . GSC’s
and McDermott’s failure to state in plain and precise terms that the limits of
liability extend to their own negligence renders the purported disclaimer
unenforceable with regard to plaintiffs’ claims against them”) (emphasis added)
(granting plaintiffs’ motion for partial summary judgment, striking pre-accident
release of liability defense based on waiver form injured swimmer was required to
sign to participate in distance swimming event); Commercial Union Ins. Co. v.
Blue Water Yacht Club Assoc., 239 F.Supp.2d 316, 322 (E.D.N.Y. 2003) (“Blue
Water’s failure to state plainly and precisely that its limit of liability extends to its
own negligence renders the purported disclaimer unenforceable with regard to the
claims in this case. Accordingly, the Court will not enforce the purported
disclaimer”) (emphasis added) (denying defendant marina’s motion to dismiss
claims arising from fire that damaged boats in storage at marina); see also, Stevens
Institute of Technology v. U.S., 396 F.Supp. 986, 988-989 (S.D.N.Y. 1975)
(refusing to enforce exculpatory clauses in school’s contract to purchase
decommissioned navy ship for use as dormitory on grounds that exculpatory
clauses were not sufficiently explicit, and were therefore unenforceable, and were
in any event void as against public policy).
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In this case, the Court has previously determined that the PADI DSD
Release Agreement form language relied upon by Defendants contains “several
ambiguities as to its intent and scope,” ECF No. 71 at 13, and specifically, with
respect to whether the snorkeling activity during which Mr. Strickert died is
deemed within the phrase “this program” and/or whether the purported release of
liability for negligence “applies solely to the Discover Scuba Diving program” and
not snorkeling. ECF No. 71 at 13-14.
The Court concluded that “[w]hen the terms at issue are viewed in this light,
their exact meaning is, at best, ambiguous, insofar as they relate to Mr. Strickert's
activities at Molokini.” Id at 16 (emphasis added).
The Court has thus already determined the terms at issue do not clearly and
unequivocally indicate the intention of the parties as required—or as the Court put
it “the PADI DSD Release Agreement does not unequivocally indicate it covers
the incident at issue.” Id. at 13 (emphasis added).
Under the legal principles applied in the cases cited above, this renders the
purported release of negligence liability in the PADI DSD Release Agreement
unenforceable as a matter of law, and no further analysis is necessary.
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B. THE MOLOKINI DIVERS RELEASE AGREEMENT IS ALSO
AMBIGUOUS AND THEREFORE UNENFORCEABLE
In the prior Order (ECF No. 71), the Court did not pass upon the
enforceability of the Molokini Divers Release Agreement. The Court did review
the document, however, explaining in part as follows:
[T]the Molokini Divers Release Agreement contains eleven
enumerated sections and instructs participants to “[i]nitial each
of the following sections as you read them. If you do not scuba
dive, initial only those items marked by the (*) symbol.” Dkt.
No. 54-1 at 4 (brackets omitted). The following five sections
were marked by an asterisk and initialed by Mr. Strickert:
2. I am aware of the risks inherent in scuba diving and/or
snorkeling, as well as boat travel to and from the
snorkel/dive sites, and I accept these risks.
3. I affirm that I am in good mental and physical fitness
for diving, snorkeling, and/or boat travel and that I am
not under the influence of alcohol or drugs which are
contra indicatory to scuba diving, snorkeling and/or boat
travel. If I am taking medication, I affirm that I have
consulted a physician and have approval to scuba dive,
snorkel, and/or travel on a boat while under the influence
of medication. If I am a non-swimmer or poor swimmer,
I agree to wear a personal flotation device (PFD) at all
times while on board a boat or in the water. If I refuse to
wear a PFD, I will be refused passage on the boat.
....
6. I will inspect all of my equipment prior to the activity
and will notify the above listed business and/or an
individual 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.
7. I acknowledge that I am physically fit to scuba dive,
snorkel, and/or travel on a boat 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
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problems or other illnesses that occur while scuba diving
and/or snorkeling.
....
10. I also understand that on this open water diving rip
[sic], I will be at a remote site and there will not be
immediate medical care or hyperbaric care available to
me and I expressly assume the risk of diving and/or
snorkeling in such a remote location. Dkt. No. 54-1 at 4.
The eleventh section of the release, which did not contain an
asterisk and was not initialed by Mark Strickert, provides: “It
is my intention by this instrument to exempt, release, and hold
harmless Scuba Shack and all related entities as defined above
from all liability whatsoever for personal injury, property
damage, and wrongful death caused by negligence.” Dkt. No.
54-1 at 4.
See ECF No. 71 at 5-6 (second brackets and emphasis by the Court). After noting
that defense counsel confirmed at hearing the Molokini Divers Release Agreement
“was not signed by Mr. Strickert on behalf of himself, but rather on behalf of his
son,” id. at 14 n.3, the Court further noted the following:
. . . Mr. Strickert did not initial the paragraph of the Molokini
Divers Release Agreement stating: “It is my intention by this
instrument to exempt, release, and hold harmless Scuba Shack
and all related entities as defined above from all liability
whatsoever for personal injury, property damage, and
wrongful death caused by negligence.” Dkt. No. 54-1 at 4. The
absence of Mr. Strickert's initial next to this paragraph cuts
against DEFENDANTS' argument that Mr. Strickert clearly
intended to release Defendants from all liability for personal
injury and wrongful death caused by DEFENDANTS'
negligence.
See ECF No. 71 at 14 n.3 (emphasis added).
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The absence of Mr. Strickert’s initials for this critical paragraph, together
with the ambiguities contained in the document as a whole, render it unenforceable
on the same basis, and for the same reasons, as the PADI DSD Release Agreement.
“In admiralty cases, the courts traditionally construe the language of
exculpatory clauses strictly against the drafter.” ECF No. 71 at 12 (emphasis
added), quoting In re Wechsler, supra, 121 F.Supp.2d at 435; cf. Dann Marine,
supra, 31 F.Supp3d at 748 (“Moreover, contractual language, and any ambiguities
therein, is construed against the drafter”), citing Commercial Union Ins. Co.,
supra, 239 F.Supp.2d at 322 and Sea Land Indus., Inc. v. Gen. Ship Repair Corp.,
530 F.Supp. 550, 552-553 (D.Md. 1982). Furthermore, “[i]n resolving the
question of whether terms in a contract are ambiguous, a court may not view the
particular terms in a vacuum. . . . Rather, a court must view the terms in the context
of the entire integrated agreement.” ECF No. 71 at 15 (citations omitted).
Viewed as a whole, the Molokini Divers Release Agreement is ambiguous in
two respects. First, as the Court has noted (ECF No. 71 at 5), the document
affirmatively directs the participant to initial only the paragraphs marked with an
asterisk symbol. Arguably the most critical paragraph of all, confirming the
participant’s intention to “exempt, release, and hold harmless Scuba Shack” (see
Exhibit C attached to Plaintiffs’ Concise Statement of Facts, paragraph 11), is not
one of those so marked. The document as a whole can thus be read to mean it is
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not the intention of the participant to release the Defendants from liability. In other
words, the intent envisioned by the drafter is ambiguous.
Second, the initial, unnumbered paragraph of the document ends with the
phrase “as a result of negligence.” See, Exhibit B, supra, at 2. But it is unclear
whose negligence is contemplated. Is it the Defendants’ negligence, or is it a third-
party’s that is referenced? The numbered paragraphs marked with asterisk that
follow immediately after the phrase—discussing the participant’s affirmations and
promises to do and not do several things—suggest the intended meaning may
actually be the participant’s negligence, in whole or in part. See, Exhibit B, supra,
at 2, e.g. par. 6 (“I will inspect all of my equipment prior to the activity . . . I will
not hold the above listed businesses or individuals responsible for my failure to
inspect my equipment”) and par. 7 (“I acknowledge that I am physically fit . . . I
will not hold the above listed businesses or individuals responsible if I am injured
as a result of . . . illnesses that occur while scuba diving and/or snorkeling”).
Defendants’ failure to make the intended meanings of this document
unequivocally clear renders it unenforceable, as a matter of law, under the rule
articulated and applied by the authorities cited on pages 11 and 12 above. E.g.,
Commercial Union Ins. Co., supra, 239 F.Supp.2d at 321-322 (“The Court finds
that the above disclaimer does not state unequivocally that Blue Water is relieved
of its own negligence . . . In order for Blue Water to effectively disclaim liability
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for its own negligence, it should have directly said so or used similar language that
imports a disclaimer for its own negligence.”) (emphasis added); Roane, supra,
330 F.Supp.2d at 322 (defendants’ “failure to state in plain and precise terms that
the limits of liability extend to their own negligence renders the purported
disclaimer unenforceable with regard to plaintiffs' claims against them.”).
C. THE EXCULPATORY PROVISIONS ARE SUBSTANTIVELY BARRED
BY FEDERAL AND HAWAII STATUTES
The Court previously did “not reach the question of whether the PADI DSD
Release Agreement is invalid under admiralty law or Hawai‘i law.” ECF No. 71 at
12, n.1. It is also unnecessary for the Court to reach these legal issues in this
Motion, based on the grounds set forth above.
If, however, the Court deems it necessary to reach substantive enforceability,
under the existing law prevailing in this District, the PADI DSD Release
Agreement and Molokini Divers Release Agreement’s exculpatory terms are
unenforceable under both federal maritime and Hawaii statutes.
In In re Pacific Adventures, 5 F.Supp.2d 874 (D.Haw. 1998), then Chief
Judge Kay held a release of liability form similar to the forms at issue in this case
was substantively unenforceable under 46 U.S.C. § 183c. Id. at 878-880.
In that analysis, the Court noted that “Section 183c is not limited to common
carriers but applies to ‘all vessels used on lakes or rivers or in inland navigation,
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including canal boats, barges, and lighters.’ 46 U.S.C.App. § 188.” Id. at 879
(emphasis added). The Court thus noted that the statute is explicitly applicable to
virtually all vessels plying U.S. waters, not only common carriers.
The Court also explained that “[t]he provision stating ‘between ports of the
United States or between any such port and a foreign port’ means that there must
be a nexus between the voyage and the United States. The terms of 183c do not
limit its application to voyages between different ports of the United States, and
the Court finds no reason to impose such a distinction.” Id. (emphasis added).
That reasoning is a logical and sound interpretation of the statute’s context
and legislative history. A foreign vessel need only touch one U.S. port. It would
make no sense that a domestic vessel need touch two—especially when § 183c, by
§ 188’s terms, is explicitly not limited to common carriers. Cf. Wallis v. Princess
Cruises, Inc., 306 F.3d 827, 835 (9th Cir. 2002) (legislative history of § 183c
suggests Congressional intent simply to regulate vessels “within waters of the
United States”); Hode v. S.N.C. Achille Lauro, 858 F.2d 905, 915 (3rd Cir. 1988)
(Congress intended statute to encompass voyages that “touch the United States”).
In Hambrook, v. Smith, 2016 WL 4408991, (D. Haw.) (“Hambrook II”),
Senior Judge Kay reaffirmed the holding and reasoning of Pacific Adventures
without reservation, applying the re-codified version of § 183c found now at
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46 U.S.C. § 30509. Noting that the “two versions of the statute are not
substantively distinct with respect to the claims at issue[,]” id at *25, the Court
explained:
16. In Pacific Adventures, 5 F. Supp. at 880, this district
court held that Section 183c applied to a release for personal
injuries in the context of a scuba diving excursion. Pursuant to
Pacific Adventures, and as noted in the Court's Summary
Judgment Order [2105 A.M.C. 2156, infra], Section 30509
applies to this admiralty action and “generally bars releases of
liability for personal injuries [or death] arising out of
negligence.” Summary Judgment Order, at 15–16; see also
Pacific Adventures, 5 F. Supp. at 879 (noting that “[s]ection
183c is not limited to common carriers but applies to ‘all
vessels used on lakes or rivers or in inland navigation,
including boats, barges, and lighters' ” (quoting 46 U.S.C. §
188 (recodified at § 30502)).
17. Section 30509 applies to owners, masters, managers,
and agents of vessels. There is no dispute that Smith and HSS
operated and owned the vessel at issue. Accordingly, the Court
finds and concludes that the Releases at issue are invalid as to
Smith and HSS.
18. With respect to McCrea, the Court finds and
concludes that McCrea was an agent of the vessel or vessel
owner such that the statute applies to invalidate the Releases
as against him. In Pacific Adventures, this district court
considered the defendant's argument that Section 183c did not
apply to invalidate the release against him because he was a
diving guide and deckhand on the vessel at issue, but was not
the agent of the vessel's owner. 5 F. Supp. 2d at 880. The court
held that to establish agency for purposes of Section 183c:
“first, the principal must exercise significant control over the
agent's activities, and, second, the agent must be engaged in
conducting the business of the principal.” Id. at 880–881. The
court rejected the dive guide's contention that as a matter of
law, he was a non-agent independent contractor. Id. at 881. In
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this respect, the court noted that the defendant acted as both a
deckhand and a dive guide, and that he conceded that in
dropping the anchor prior to the dive, the vessel owner “had
the right to control [his] conduct.” Id. Thus, the court
determined that the dive guide's duties were “not limited to
providing a service to another without supervision.” Id.
19. Here, McCrea testified that he was an independent
contractor for Smith, but he conceded that while serving as a
captain on the vessel he was under Smith's control. Ex. 179
(McCrea Dep. Tr. 27, 29). McCrea additionally agreed that
while working for Smith, he accepted the fact that Smith
“would tell [him] what to do.” Id. 30. Thus, the Court finds
and concludes that Smith exercised significant control over
McCrea. It is also clear that McCrea was “engaged in
conducting the business of” Smith given that he was hired by
Smith to assist him during the scuba diving excursion. See
Pacific Adventures, 5 F. Supp. 2d at 881. McCrea's
responsibilities on the day of the dive included mooring the
boat, assisting with loading the equipment on the boat and
launching the boat, and, as required by United States Coast
Guard regulations, serving as boat captain while Smith was in
the water. As noted above, McCrea also provided a dive
briefing on the day of the incident. Accordingly, the Court
finds and concludes that McCrea acted as Smith's and HSS's
agent on the day of the incident. The Court further finds and
concludes that McCrea, in his aforesaid services as captain
while Smith was in the water, also was the manager and
master of the vessel. On this basis, the Court finds and
concludes that Section 30509 operates to invalidate the
Releases as to McCrea.
Hambrook II, 2016 WL 4408991 at *25-26.
In this case, Defendant Charles Neal and his two companies, Defendants
Molokini Divers, Inc. (MDI) and Nealco International LLC (Nealco), stand in the
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same position as the vessel owner/operator in Pacific Adventures, and Smith and
HSS in Hambrook
Similarly, Defendants Bartunek and Osaki, the two dive guide-deckhands on
the vessel, stand in the same position as the dive guide-deckhand in Pacific
Adventures, and McCrea in Hambrook. The holding and reasoning of Pacific
Adventures apply to this case with equal force, and as to all Defendants.
In Hambrook, Senior Judge Kay also determined Hawaii law could be
applied in the Court’s analysis of the liability waiver, explaining as follows:
Notwithstanding the Court's conclusion that admiralty
jurisdiction applies in the instant suit, the Court may
nevertheless apply Hawaii law in its analysis of the liability
waiver, to the extent Hawaii law does not conflict with general
maritime law. Generally, “[w]ith admiralty jurisdiction ...
comes the application of substantive admiralty law.” Yamaha
Motor Corp., U.S.A., v. Calhoun, 516 U.S. 199, 206 (1996)
(citation omitted). Nevertheless, the exercise of admiralty
jurisdiction “does not result in automatic displacement of state
law.” Id. Thus, the United States Supreme Court in Calhoun
stated that some state regulation is still permissible in the
context of admiralty law. Id. Since Calhoun, courts have
generally found that state laws that do not conflict with
general maritime law may be applied in the context of
admiralty jurisdiction. See Hawaii Stevedores, Inc. v. Island
Cement, LLC, Civ. No. 09–00250 DAE–BMK, 2009 WL
3681875, at *4 (D.Haw. Nov. 3, 2009) (“Because Hawaii's
assumpsit statute does not conflict with general maritime law,
Haw.Rev.Stat. § 607–14 applies here under the ‘maritime but
local’ doctrine.”); 17A James Wm. Moore, et al., Moore's
Federal Practice ¶ 124.46 (3d ed.2009) (state law applies if not
in conflict with general maritime law (citing Calhoun, 516
U.S. at 215–16)). Here, there is no conflict between general
maritime law and the Hawaii statute at issue. Specifically, and
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as discussed in more detail below, Hawaii Revised Statutes
section 663–1.54, titled “recreational activity liability,”
prohibits any waiver of liability for negligence against the
owner or operator of a business providing recreational
activities in the state. As discussed above, Section 183c
similarly bars liability releases for negligence in the context of
admiralty cases. See 46 U.S.C. § 30509. Thus, no conflict
exists between the Hawaii statute and general maritime law.
The Court therefore concludes that it is appropriate to consider
Hawaii law, notwithstanding the Court's exercise of admiralty
jurisdiction in this case.
Hambrook v. Smith, 2015 WL 3480887, 2015 A.M.C. 2156 (D.Haw.)
(“Hambrook I”) at 2169 n.8.
In Hambrook II, the Court applied H.R.S. § 663-1.54, explaining
in pertinent part, as follows:
II. Applicable Law
4. In Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S.
199, 206 (1996), the Supreme Court held that “[w]ith
admiralty jurisdiction ... comes the application of substantive
admiralty law.” (citation omitted). However, the Court noted
that “[t]he exercise of admiralty jurisdiction ... does not result
in automatic displacement of state law.” Id. (citation omitted).
5. Since Yamaha, courts have held that state law may be
applied to supplement general maritime law as long as there is
no conflict. As noted in the Court's Summary Judgment Order,
Since Calhoun, courts have generally found that state
laws that do not conflict with general maritime law may
be applied in the context of admiralty jurisdiction. See
Hawaii Stevedores, Inc, v. Island Cement, LLC, Civ. No.
09-00250 DAE–BMK, 2009 WL 3681875, at *4 (D.
Haw. Nov. 3, 2009) (“Because Hawaii's assumpsit statute
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does not conflict with general maritime law, Haw. Rev.
Stat. § 607–14 applies here under the ‘maritime but local’
doctrine.”); 17A James Wm. Moore, et al., Moore's
Federal Practice ¶124.46 (3d ed. 2009) (state law applies
if not in conflict with general maritime law (citing
Calhoun, 516 U.S. at 215–16)).
Summary Judgment Order at 17 n. 8 [2015 A.M.C. at 2169].
6. Courts have also held that consistent state law may
supplement admiralty remedies for the death of nonseafarers
in state territorial waters. Matheny v. Tennessee Valley
Authority, 503 F. Supp. 2d 917, 922 (M.D. Tenn. 2007)
(“Under the Supreme Court's most recent line of cases, state
law is to be applied where it ‘fills gaps' or provides relief that
otherwise would not be available under admiralty law; but,
where state law would supersede or limit clearly defined
maritime causes of action, it cannot be applied.”); In re Air
Crash at Belle Harbor, New York on Nov. 12, 2001, No. MDL
1448 (RWS), 2006 WL 1288298, at *15 (S.D.N.Y. May 9,
2006) (“Subsequent federal courts, consistent with the
rationale of Yamaha, have allowed more generous state law to
supplement the Moragne death action and rejected arguments
by defendants that Yamaha requires application of state law
even when that law is narrower than the Moragne cause of
action.”).
* * *
20. The Court also concludes that the Release documents are
unenforceable even if Hawaii law governs this issue. Hawaii
Revised Statutes (“HRS”) § 663–1.54 titled “[r]ecreational
activity liability” provides:
(a) Any person who owns or operates a business providing
recreational activities to the public, such as, without limitation,
scuba or skin diving, sky diving, bicycle tours, and mountain
climbing, shall exercise reasonable care to ensure the safety of
patrons and the public, and shall be liable for damages
resulting from negligent acts or omissions of the person which
cause injury.
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(b) Notwithstanding subsection (a), owners and operators of
recreational activities shall not be liable for damages for
injuries to a patron resulting from inherent risks associated
with the recreational activity if the patron participating in the
recreational activity voluntarily signs a written release waiving
the owner or operator's liability for damages for injuries
resulting from the inherent risks. No waiver shall be valid
unless:
(1) The owner or operator first provides full disclosure of the
inherent risks associated with the recreational activity; and
(2) The owner or operator takes reasonable steps to ensure that
each patron is physically able to participate in the activity and
is given the necessary instruction to participate in the activity
safely.
(c) The determination of whether a risk is inherent or not is for
the trier of fact. As used in this section an “inherent risk”:
(3) Does not result from the negligence, gross negligence, or
wanton act or omission of the owner or operator.
21. The Standing Committee that drafted Section 663–
1.54 explained its purpose as follows:
Your Committee finds that this measure is necessary to
more clearly define the liability of providers of
commercial recreational activities by statutorily
invalidating inherent risk waivers signed by the
participants. Your committee further finds that these
inherent risk waivers require providers to disclose known
risks to the participant, but these waivers do not extend
immunity to providers for damages resulting from
negligence. Thus, it is the intent of your Committee that
this clarification in the law will appropriately reduce
frivolous suits without increasing risks to participants.
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Haw. Stand. Comm. Rep. No. 1537, 1997 Senate Journal, at
1476; see also King v. CJM Country Stables, 315 F. Supp. 2d
1061, 1067 (D. Haw. 2004) (providing detailed analysis of
legislative history of § 663–1.54).
22. Thus, Section 663–1.54 precludes any waiver of
liability for negligence against the owner or operator of a
business providing recreational activities, including scuba
diving excursions, and only permits waivers for damages
resulting from “inherent risks” that have been fully disclosed
to the customer. See King, 315 F. Supp. 2d at 1067.
23. The Court finds and concludes that because both
Smith and McCrea provided “recreational activities to the
public,” the statute applies. See HRS § 663–1.54(a).
Hambrook II, 2016 WL 4408991 at *22, 26-27 (emphasis original).
In short, “Section 663–1.54(a) explicitly precludes waiving
liability for negligence.” King v. CJM Country Stables, supra, 315 F.
Supp. 2d at 1067.
In sum, both federal and Hawaii statutes substantively bar
enforcement of the terms of the two Release Agreements in this case
purporting to waive liability for negligence.
IV. CONCLUSION
Plaintiffs respectfully request that this Motion be granted.
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Dated: Honolulu, Hawaii, January 19, 2017.
Respectfully submitted,
CRONIN FRIED SEKIYA KEKINA & FAIRBANKS
and
McGUINN, HILLSMAN & PALEFSKY
By: /s/ Howard G. McPherson
Howard G. McPherson
Attorneys for Plaintiff MARY STRICKERT
Attorneys for Plaintiff SARA SPREEN
----------------------------------------------------------------------------------------------------
Civil No. 14-00513 DKW-RLP; MARY M. STRICKERT, individually, as
Personal Representative of the Estate of Mark David Strickert, deceased, and
SARA SPREEN, as the duly appointed Guardian ad litem for C.H.S., a minor, and
C.S.S., a minor vs. CHARLES C. NEAL; MOLOKINI DIVERS, INC.; NEALCO
INTERNATIONAL, LLC dba SCUBA SHACK; JEFFREY BARTUNEK; and
ALANA OSAKI, et al.; PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
ON PRE-ACCIDENT RELEASE OF LIABILITY; MEMORANDUM IN SUPPORT OF MOTION;
CERTIFICATE OF SERVICE
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772
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MARY M. STRICKERT,
individually, as Personal
Representative of the Estate of Mark
David Strickert, deceased, and SARA
SPREEN, as the duly appointed
Guardian ad litem for C.H.S., a
minor, and C.S.S., a minor,
Plaintiffs,
vs.
CHARLES C. NEAL; MOLOKINI
DIVERS, INC.; NEALCO
INTERNATIONAL, LLC dba
SCUBA SHACK; JEFFREY
BARTUNEK; and ALANA OSAKI,
Defendants.
_______________________________
ALANA DOHNER OSKI,
Plaintiff,
CHARLES C. NEAL; JEFFREY
BARTUNEK; MOLOKINI DIVERS,
INC.; NEALCO INTERNATIONAL,
LLOC dba SCUBA SHACK; M/V
DOUBLE SCOOP,
Defendants.
________________________________)
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CIVIL NO. 14-00513 DKW-RLP
CERTIFICATE OF SERVICE
CIVIL NO. 15-00409 DKW-RLP
Case 1:15-cv-00409-DKW-RLP Document 63-2 Filed 01/19/17 Page 1 of 4 PageID #:
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2
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that true a copy of the foregoing document was
duly served via CM/ECF on January 19, 2017 as indicated below:
JARED A. WASHKOWITZ, ESQ.
1050 Bishop Street, Suite 450
Honolulu, Hawaii 96813
Email: jw102475@gmail.com
Attorney for Defendants (Civ. 14-00513)
CHARLES C. NEAL; MOLOKINI
DIVERS, INC.; NEALCO INTERNATIONAL,
LLC dba Scuba Shack
and
Attorney for Defendants (Civ. 15-00409)
CHARLES C. NEAL; MOLOKINI
DIVERS, INC.; NEALCO INTERNATIONAL,
LLC dba Scuba Shack; M/V DOUBLE SCOOP
JASON M. TANI, ESQ.
Rush Moore LLP
737 Bishop Street, Suite 2400
Honolulu, Hawaii 96813
Email: jtani@rmhawaii.com
Attorney for Defendants (Civ. 15-00409)
CHARLES C. NEAL; MOLOKINI
DIVERS, INC.; NEALCO INTERNATIONAL,
LLC dba Scuba Shack
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3
GREGORY K. MARKHAM, ESQ.
KEITH K. KATO, ESQ.
Chee Markham & Feldman
American Savings Bank Tower
1001 Bishop Street, Suite 2700
Honolulu, Hawaii 96813
Emails: tmarkham@cheemarkham.com
kkato@cheemarkham.com
Attorneys for Defendant
ALANA OSAKI (Civ. 14-00513)
RICHARD A. LESSER, ESQ.
LESSER & ASSOCIATES PC
423 South Pacific Coast Highway, Suite 206
Redondo Beach, California 90277
Email: lesser@divelaw.com
and
HAROLD G. HOPPE, ESQ.
Attorney at Law
737 Bishop Street, Suite 1640
Honolulu, Hawaii 96813
Email: Hoppea001@hawaii.rr.com
Attorneys for Plaintiff
ALANA DOHNER OSAKI (Civ. 15-00409)
GARY G. GRIMMER, ESQ.
Gary G. Grimmer & Associates
City Financial Tower
201 Merchant Street, Suite 1940
Honolulu, Hawaii 96813
Email: Gary@GrimmerHawaiiLaw.com
Attorney for Defendant
JEFFREY D. BARTUNEK (Civ. 14-00513) and Civ. 15-00409)
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DATED: Honolulu, Hawaii, January 19, 2017.
CRONIN FRIED SEKIYA KEKINA & FAIRBANKS
and
McGUINN, HILLSMAN & PALEFSKY
By: /s/ Howard G. McPherson
Howard G. McPherson
Attorneys for Plaintiff MARY STRICKERT
Attorneys for Plaintiff SARA SPREEN
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