WILLIAM MCMEIN EHART, Jr., Individuаlly and as Personal Representative of the Estate of Maureen Anne Ehart, Deceased v. LAHAINA DIVERS, INC.; CORY DAM, and KAITLIN MILLER; JULIANNE CRICCHIO; LAHAINA DIVE & SURF LLC
No. 22-16149
United States Court of Appeals, Ninth Circuit
February 8, 2024
D.C. No. 1:21-cv-00475-SOM-KJM
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
WILLIAM MCMEIN EHART, Jr., Individually and as Personal Representative of the Estate of Maureen Anne Ehart, Deceased, Plaintiff-Appellee, v. LAHAINA DIVERS, INC.; CORY DAM, Defendants-Appellants, and KAITLIN MILLER; JULIANNE CRICCHIO; LAHAINA DIVE & SURF LLC, Defendants.
OPINION
Susan O. Mollway, District Judge, Presiding
Argued and Submitted February 17, 2023 Honolulu, Hawaii
Filed February 8, 2024
Before: Carlos T. Bea, Daniel P. Collins, and Kenneth K. Lee, Circuit Judges.
Opinion by Judge Bea; Dissent by Judge Collins
SUMMARY*
Admiralty Law
The panel reversed the district court‘s order granting plaintiff‘s motion to strike an affirmative defense of waiver or release and remanded for further proceedings in a wrongful death admiralty action.
Plaintiff‘s claims arose from his wife‘s death during a scuba and snorkeling tour from Lahaina Harbor to Molokini Crater, an atoll off the coast of Maui. Before the tour, plaintiff and his wife each signed a waiver document releasing rights to sue defendants. Defendants asserted waiver and release as an affirmative defense to claims based on simple negligence. The district court struck the defense on the basis that the liability waivers were void under
in the United States, or between a port in the United States and a port in a foreign country.”
Citing Wallis v. Princess Cruises, Inc., 306 F.3d 827 (9th Cir. 2002) (finding jurisdiction to review the district court‘s grant of partial summary judgment limiting the defendant‘s liability in accordance with a clause on the back of a cruise ship ticket), the panel held that it had jurisdiction to review the district court‘s interlocutory order under
On the merits, the panel held that, under the plain meaning of “between ports in the United States,”
Dissenting, Judge Collins wrote that he would dismiss the appeal for lack of jurisdiction because the majority greatly expanded the court‘s already overbroad construction of
COUNSEL
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
OPINION
BEA, Circuit Judge:
The question in this case is whether
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 loсated 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
- ☑ * 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 agеncies) 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 be 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.
- ☑ * 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.
- ☑ 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.
- ☑ 9. I also expressly assume the risk and accept the responsibility to plan my scuba dive and dive my plan.
- ☑ * 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.
- ☑ * 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.
- ☑ * 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 searсh; 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
foreign country“; and (2) federal admiralty law precludes application of the Hawaii state statute in this case.
The district court granted Plaintiff‘s motion to strike the affirmative defense on the basis that the liability waivers signed by the Eharts were void under
Defendants sought reconsideration of the district court‘s order to strike the affirmative defense or, in the alternative,
to have the court certify an interlocutory appeal with respect to the striking of that defense. The district court denied the motion and declined to certify the interlocutory appeal. Defendants then filed this interlocutory appeal.
II. STANDARD OF REVIEW
We review questions of statutory interpretation de novo. United States v. Doe, 136 F.3d 631, 634 (9th Cir. 1998). We review a district court‘s ruling on a motion to strike for abuse of discretion. El Pollo Loco, Inc. v. Hashim, 316 F.3d 1032, 1038 (9th Cir. 2003). We review de novo a district court‘s holding as to whether an affirmative defense is applicable as a matter of law. In re Hanford Nuclear Rsrv. Litig., 534 F.3d 986, 1000 (9th Cir. 2008).
III. JURISDICTION
The district court declined to certify an interlocutory appeal under
review the district court‘s grant of partial summary judgment limiting the defendant‘s liability in accordance with a clause on the back of a cruise ship ticket); Vision Air Flight Serv., Inc. v. M/V Nat‘l Pride, 155 F.3d 1165, 1168 (9th Cir. 1998) (finding jurisdiction to review the district court‘s grant of partial summary judgment limiting the defendant‘s liability pursuant to the Carriage of Goods at Sea Act); Carman Tool & Abrasives, Inc. v. Evergreen Lines, 871 F.2d 897, 899 (9th Cir. 1989) (same). Because this court “ha[s] jurisdiction over an interlocutory appeal under
IV. 46 U.S.C. § 30527
(a) Prohibition.--
(1) In general.--The owner, master, manager, or agent of a vessel transporting passengers between ports in the United States, or between a port in the United States and a port in a foreign country, may not include in a regulation or contract a provision limiting--
(A) the liability of the owner, master, or agent for personal injury or death caused by the negligence or fault of the owner or the owner‘s employees or agents; or
(B) the right of a claimant for personal injury or death to a trial by court of competent jurisdiction.
removed). The same is true here: if the liability waiver applies, then Plaintiff would need to prove that Defendants were grossly negligent to recover; if the liability waiver is prohibited by statute, then Plaintiff need only prove that Defendants were negligent. The dissent agrees that “we reaffirmed in Wallis that an order determining ‘the validity and applicability of a provision limiting liability’ counts as a ‘decree[] . . . determining the rights and liabilities of the parties’ within the meaning of
(2) Voidness.--A provision described in paragraph (1) is void.
A statute‘s language is the starting point for its interpretation. Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987). “When a statute does not define a term, we typically ‘give the phrase its ordinary meaning.‘” FCC v. AT&T Inc., 562 U.S. 397, 403 (2011) (quoting Johnson v. United States, 559 U.S. 133, 138 (2010)). “To determine the ‘plain meaning’ of a term undefined by a statute, resort to a dictionary is permissible.” San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004).
The plain meaning of the term “transporting passengers between ports” is transporting passengers from one port to another port (Port A to Port B), not transporting passengers away from and back to a single port (Port A to Port A). This meaning stems from the combination of the word “between” and the plural form of “ports.” The use of the plural “ports” is not determinative on its own because “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise-- . . . words importing the plural include the singular.”
“between” suggests that the plural “ports” does not include the singular “port.” See Witkowski v. Niagara Jet Adventures, LLC, 2020 WL 486876, at *4 n.4 (W.D.N.Y. Jan. 30, 2020) (reasoning that, in
In holding otherwise, the district court rеlied on three dictionary definitions of the word “between“: (1) “[i]n or through the position or interval separating“;9 (2) [c]onnecting spatially“;10 and (3) “in the time, space, or interval that separates.”11 The district court appears to have handpicked
without explanation. But even these definitions, and their corresponding examples, nonetheless support a holding that the phrase “between ports” refers to multiple ports. Each of these definitions involves a relationship between one thing and something else. Put more simply, the word “between” implies more than one.
Of the eleven definitions of “between” found in the Merriam-Webster Dictionary, the definition that best fits the context of
The district court attempted to avoid this conclusion by reasoning that “[h]ad Congress intended to require different ports when it used the word ‘ports,’ it could have easily
indicated that by using the phrase ‘between different ports.‘” This argument fails because, as discussed, the word “between” indicates that Congress intended to reference multiple ports. Multiple ports are, by definition, different one from the other; adding “different” would be tautological. See ANTONIN SCALIA & BRYAN A. GARNER, Surplusage Canon, in READING LAW: THE INTERPRETATION OF LEGAL TEXTS 174 (2012) (“[No word] should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.“).
The district court next attempted to skirt the plain meaning of the phrase “between ports” by reasoning that limiting the statute‘s application to vessels transporting passengers between different ports would result in “absurd results.” The district court reasoned:
[A]pplying “ports” only when journeys are between Port A and Port B leads to odd and absurd results. For example, a vessel may take passengers a few hundred yards from one side of a river to the other (Port A to Port B). Waivers of negligence for the short journey between Port A and Port B would be prohibited by § 305[27], as the journey would involve transportation of passengers “between ports of the United States.” However, if the same vessel left Port A for a 10-hour sightseeing tour and then returned to the same port (Port A), then, under Defendants’ argument, waivers of negligence for such a journey would not be prohibited by § 305[27]. It makes little sense to think that Congress intended to prohibit a waiver only
for the first (very brief) journey. Both involve the transportation
of passengers between ports. In the latter example, the vessel is conveying the passengers from one рort out for a boat tour and then back to the same port, with the tour being the interval between embarkation and disembarkation at the same port.
We reject this reasoning for two reasons. First, both examples do not “involve the transportation of passengers between ports.” The vessel that departs from Port A and returns to Port A might involve the transportation between a port and the water, but it does not involve the transportation of passengers between ports (plural). Second, nothing in the text of the statute indicates that its applicability is tied to the length of the journey, but the phrase “between ports” does indicate that the statute‘s applicability is dependent on the transportation of passengers between different ports.13
In summary, we conclude that the plain language of
Because the meaning of the statute is clear from its text, the district court‘s review of the legislative history was unnecessary and improper. CVS Health Corp. v. Vividus, LLC, 878 F.3d 703, 706 (9th Cir. 2017). But even were the legislative history a suitable basis for statutory interpretation, the district court‘s reasoning misses the mark. The General Slocum may have planned to depart from and return to the same port, but it also planned to stop at another port along the way. According to the record, the steamship was chartered to transport passengers between its origin port on Manhattan to a picnic ground with its own pier on Long Island (from which pier the passengers would depart), and later back to the origin port. Thus, the General Slocum‘s intended route was from Port A (Manhattan) to Port B (Long Island) to Port A, not merely from Port A to Port A.
V. HAWAII REVISED STATUTE § 663–1.54
Plaintiff argues that the liability waiver signed by the Eharts is void under
[O]wners 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 safely.
the word. Williams v. King, 875 F.3d 500, 503 (9th Cir. 2017) (quoting United States v. Guerrerio, 675 F. Supp. 1430, 1438 (S.D.N.Y. 1987), in explanatory parenthetical).
conditions of the statute were satisfied, including whether Defendants provided “full disclosure of the inherent risks” of snorkeling, whether Defendants took “reasonable steps to ensure that [Maureen] was physically able to participate in the activity,” and whether Maureen was “given the necessary instruction to participate in the activity safely.”Plaintiff forfeited any argument that the district court erred in finding that there was a question of fact as to whether the conditions of the statute were satisfied because Plaintiff failed to raise this issue in the answering brief. See Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009). Thus, on this record,
VI. CONCLUSION
For the reasons stated above, we reverse the district court‘s order granting Plaintiff‘s motion to strike the affirmative defense of waiver or release, and we remand for further proceedings.
REVERSED AND REMANDED.
COLLINS, Circuit Judge, dissenting:
In asserting jurisdiction over this interlocutory appeal from an order striking an affirmative defense from an answer, the majority greatly expands this circuit‘s already overbroad construction of
I
Plaintiff William Ehart (“Plaintiff” or “William“), his wife Maureen, and “fourteen other paying passengers” set out from Maui‘s Lahaina harbor aboard the “dive boat” Dauntless early on the morning of September 14, 2021 for a “dive tour.”1 The Dauntless is owned by Defendant Lahaina
Divers, Inc. (“Lahaina Divers“). However, the boat was chartered by a separate entity, Lahaina Dive and Surf, LLC (“Lahaina Dive & Surf“), which is also the entity that operated the dive tour and employed the crew.2 The crew included the captain, Defendant Cory Dam, as well as two “open-water-scuba instructor[s]” certified by the Professional Association of Diving Instructors, namely, Defendants Kaitlin Miller and Julianne Cricchio.
Dam guided the Dauntless to the “Molokini Crater, a crescent-shaped islet in the ocean off the southeast coast of Maui.” However, the vessel was not tied directly to the crater or to any structure attached to the crater; instead, Dam tied the boat “to a mooring buoy known as ‘Reef‘s End’ at the Crater.” At that point, Miller and Cricchio led two groups of passengers, including William, into the water for their separate scuba excursions. After they did so, several remаining passengers, including Maureen, went into the water in order to snorkel. At that time, Dam “was the sole crew member aboard to maintain a lookout, . . . oversee the snorkeling activities, recall the divers and snorkelers if necessary, and provide rescue if necessary.” The complaint alleges that, after the other snorkelers got back in the boat,
Maureen stayed in the water alone and ultimately drifted away in the current unnoticed. The two scuba groups returned of their own accord, and at no point did Dam “recall the scuba divers or snorkelers.” After Maureen‘s disappearance was finally noticed, Miller and Cricchio swam in the area in an unsuccessful effort to locate her. Dam also sought assistance on the emergency marine radio channel, and the Coast Guard and Maui County responders used “various resources” in a fruitless attempt to locate Maureen. Maureen was never found and is presumed dead. The Dauntless returned to Lahaina with its remaining passengers.
Invoking the district court‘s maritime jurisdiction under
In moving to strike this affirmative defense of waiver and release, Plaintiff contended, inter alia, that the waivers were void under what is now § 30527 of title 46 of the United States Code.3 That statute provides:
(a) Prohibition.—
(1) In general.—The owner, master, manager, or agent of a vessel transporting passengers between ports in the United States, or between a port in the United States and a port in a foreign country, may not include in a regulation or contract a provision limiting—
(A) the liability of the owner, master, or agent for personal injury or death caused by the negligence or fault of the owner or the owner‘s employees or agents; or
(B) the right of a claimant for personal injury or death to a trial by court of competent jurisdiction.
(2) Voidness.—A provision described in paragraph (1) is void.
Defendants timely filed a motion for reconsideration of the district court‘s order, and in that motion they also asked, in the alternative, that the district court certify that order for immediate interlocutory appeal under
II
In my view, we lack interlocutory jurisdiction over this appeal, and I therefore would dismiss it without reaching the merits.
“From the very foundation of our judicial system, the general rule has been that the whole case and every matter in controversy in it must be decided in a single appeal.” Microsoft Corp. v. Baker, 582 U.S. 23, 36 (2017) (simplified). Under this “general rule,” that “single appeal” is “to be deferred until final judgment has been entered,” at which time “claims of district court error at any stage of the litigation may be ventilated.” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994). This “final-judgment rule,” now codified in
administration’ and encroaches upon the prerogatives of district court judges, who play a ‘special role’ in managing ongoing litigation.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009) (citations omitted).
Congress, however, has recognized several statutory exceptions to that general rule by expressly “authoriz[ing] review of cеrtain interlocutory decisions” in the various provisions of
(3) Interlocutory decrees of such district courts or the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.
here is “[i]nterlocutory.” Id. The only question, then, is whether it counts as a “decree[] . . . determining the rights and liabilities of the parties.” Id.
This distinctive phrase trаces back verbatim to the enactment of the predecessor to
It was a common practice for the admiralty court to determine first the issue of liability and, if it found liability, to refer the parties to a commissioner for the determination of damages. The purpose of § 1292(a)(3) was to permit a party found liable to take an immediate appeal from that finding and thereby possibly avoid an oftentimes costly and protracted trial of the damages issue.
Seattle First Nat‘l Bank v. Bluewater P‘ship, 772 F.2d 565, 568 (9th Cir. 1985) (quoting 9 MOORE‘S FEDERAL PRACTICE
1929); see also The Maria, 67 F.2d 571, 571 (2d Cir. 1933) (“That statute was primarily intended to avoid the expense and delay of a reference to compute damages, since it is always possible that the libelant may later turn out to have no right to recover at all; and, although it would perhaps be too much to say that it covers that situation alone, it is hard to imagine other instances.“).
This narrow understanding also comports with the statutory language. An order that has not yet found whether a plaintiff in fact has a “right” to recover from a defendant and whether a defendant in fact has a “liability” to a plaintiff cannot be said to have “determined the rights and liabilities of the parties.”
Under this understanding of the statute, the jurisdictional issue in this case is easy. An order striking a particular defense as being inapplicable to the case at bar simply does not “determin[e]” the “rights and liabilities of the parties”
under any reasonable reading of those words.4 As the district court correctly observed in denying Plaintiff‘s request to authorize a discretionary appeal under
B
But matters are not so easy, at least in this circuit. As we noted in Wallis v. Princess Cruises, Inc., 306 F.3d 827 (9th Cir. 2002), the Third, Fourth, and Fifth Circuits have all held—consistent with what I have sketched above—“that § 1292(a)(3) requires a determination of actual liability [or
non-liability] by the district court.” Id. at 833-34 (emphasis added) (citing Evergreen Int‘l (USA) Corp. v. Standard Warehouse, 33 F.3d 420, 424 (4th Cir. 1994); Bucher-Guyer AG v. M/V Incotrans Spirit, 868 F.2d 734, 735 (5th Cir. 1989); and Burgbacher v. Univ. of Pittsburgh, 860 F.2d 87, 88 (3d Cir. 1988)). However, we also correctly noted in Wallis that Ninth Circuit precedent had already departed from that narrow understanding of the jurisdiction conferred by
Although this court in Carman Tool and Vision Air had simply asserted jurisdiction under
If a district court holds that a limitation of liability clause is valid and applicable, that determination will, as a practical matter, usually end the case. For example, in a COGSA [Carriage of Goods at Sea Act] case, if the district court has held that a plaintiff can recover no more than $500 if actual liability is established, an economically rational plaintiff will not ordinarily pursue the case to
judgment, and the correctness of the district court‘s determination of applicability of the liability limitation will never be reviewed.
Limitation of liability provisions are common in maritime cases, not limited to cases brought under COGSA. As we read § 1292(a)(3), it takes into account the practical problem posed by limitations of liability. Its explicit text of § 1292(a)(3) authorizes [appeals of] “interlocutory decrees.” If the phrase “determination of the . . . liabilities,” which occurs later in the same text, were construed to exclude a determination of limitations of liability from “interlocutory decrees,” such a construction would make interlocutory appeals impossible in many admiralty cases, and would do so in precisely those cases where such appeals are most needed. We therefore hold that we have jurisdiction to decide this interlocutory appeal.
As this excerpt makes clear, the reasoning in Wallis‘s atextual and policy-based analysis rests on what has sometimes been described as the “death knell” theory of appellate jurisdiction—i.e., that an interlocutory appeal should be allowed when the practical effect of an adverse ruling makes it economically infeasible or impractical for the losing party to continue litigating to final judgment. See, e.g., Coopers & Lybrand v. Livesay, 437 U.S. 463, 466 (1978). However, in its subsequent decision in Baker, the Supreme Court reaffirmed its longstanding
such “death-knell doctrine” as a basis for recognizing exceptions to the final judgment rule. Baker, 582 U.S. at 29. Among other points, the Court emphasized that
But even assuming arguendo that Wallis is not “clearly irreconcilable” with Baker, see Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc), I disagree with the
majority‘s further expansion of Wallis in this case. In asserting interlocutory appellate jurisdiction under
As an affirmative defense, Princess asserted that its liability, if any, for the death of Mr.
Wallis is limited to roughly
$60,000 pursuant to its Passage Contract. Princess moved for partial summary judgment as to whether its liability is so limited, and the district court granted the motion. As in Carman Tool, the district court in our case has not decided whether Princess is actually liable for plaintiff‘s wrongful death claim. It has only decided that, if Princess were liable, its liability would be limited pursuant to the contract.
306 F.3d at 833 (emphasis added).
It is perhaps at least plausible to say—as these cases did—that, when a district court has determined that the defendants in fact had no liability for the entire category of damages above the relevant fixed amount, such a ruling has “determin[ed] the rights and liabilities of the parties” with respect to such further damages.
The majority does not and cannot dispute that, as written, our opinion in Wallis asserted jurisdiction under
decision. Because our opinion in Wallis asserted jurisdiction based on the clearly stated premise that the district court‘s order there was an across-the-board limitation of liability, that precedent provides no justification for the
The majority‘s unduly expansive reading of
cases under the majority‘s overbroad reading of
Because we lack jurisdiction over this interlocutory appeal, I would dismiss Defendants’ appeal and would not reach the merits.
III
The majority, however, concludes that we do have jurisdiction, and it therefore proceeds to issue a binding precedential opinion as to the scope of the ban on liability waivers in § 30527. In my view, the majority‘s construction of the statute is wrong.
A
As noted earlier, § 30527 declares to be “void” any “provision” in a “contract” that “limit[s] . . . the liability of the owner, master, or agent” of a covered vessel “for personal injury or death caused by the negligence or fault of the owner or the owner‘s employees or agents.”
covered by the statute.8 I disagree with that conclusion and with the
The statute states that its prohibition on liability waivers applies to any “vessel transporting passengers between ports in the United States, or between a port in the United States and a port in a foreign country.”
First, the vessel must be “transporting” “passengers” “between” ports—meaning that, if the vessel was never intended to be taken out into the water with its passengers, then it is not covered. The statute would thus not apply to, say, a visit to the Queen Mary at its permanent mooring in Long Beach. That makes sense, because if there is no plan for the ship ever to leave port, then the dangers associated with such transportation—which are ultimately what underly the rule against liability waivers—would never be
implicated. In this respect, it is important to recognize that the enactment of § 30527‘s predecessor in 1936 partly served to codify the longstanding rule of maritime law and common law that, in order to ensure that common carriers by sea or by land would exercise “the highest degree of carefulness and diligence” with “regard to passengers,” such carriers were barred from disclaiming liability towards such passengers. See Liverpool & G.W. Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 439-40 (1889); id. at 443-61 (rejecting the view that maritime law, at least in the United States, applied a different rule); see also New York Cent. R.R. Co. v. Lockwood, 84 U.S. 357, 384 (1873) (holding that a common carrier “cannot lawfully stipulate” to “exemption from responsibility for the negligence of himself or his servants” and that this rule applies “both to carriers of goods and carriers of passengers for hire, and with special force to the latter“); The Oregon, 133 F. 609, 630 (9th Cir. 1904) (holding, in an action for personal injuries suffered by passengers during a voyage, that if the “provision of the contract, relieving the carrier from responsibility for the negligence of the carrier . . . can be held to be applicable, it is clearly void by reason of being against public policy“).
Second, the statute specifies that at least one of the ports in question must be a United States port. The obvious import of this requirement is to impose a jurisdictional element that excludes vessels transporting passengers entirely between foreign ports. See Hodes v. S.N.C. Achille Lauro ed Altri-Gestione, 858 F.2d 905, 914-15 (3d Cir. 1988) (stating that § 30527‘s predecessor was enacted to settle the “jurisdictional scope” of the maritime-law anti-liability-waiver rule and did so by “delimit[ing] the reach of American public policy to contracts of passage for voyages
that touch the United States“), overruled on other grounds by Lauro Lines s.r.l. v. Chasser, 490 U.S. 495 (1989).
This particular aspect of
dissented, arguing that the majority‘s application of U.S. law was “the apex of unreason.” Id. at 733.
Under § 30527 and its 1936 predecessor, the now-codified rule voiding liability waivers for vessels transporting passengers would not apply to the sort of wholly foreign voyage at issue in Oceanic Steam, because that voyage did not involve transportation of passengers either “between ports in the United States” or “between a port in the United States and a port in a foreign country.”
Viewed against this backdrop, § 30527 clearly applies to the Dauntless. Because the Dauntless was “transporting passengers” from Lahaina (a “port[] in the United States“), out into the water, and then back to Lahaina (again, a “port[] in the United States“), the travel was “between ports in the United States.”
B
The majority nonetheless concludes that, in addition to partly codifying the established maritime rule against liability waivers and excluding its application to wholly foreign voyages, Congress in § 30527 went further and also categorically excluded, from the coverage of that rule, any excursion trip that starts and ends in the same U.S. port. That is incorrect.
The majority contends that the requirement that the port of departure and the port of destination be different arises from the use of the word “between,” which it says “implies
more than one.” See Opin. at 16. In support of this contention, the majority notes, for example, that in the dictionary‘s illustrative phrases “the alley between the butcher shop and the pharmacy” and “should arrive between 9 and 10 o‘clock,” there are necessarily “two shops and two times.” See Opin. at 15 n.11 (citation omitted). But it simply is not true that “between” always connotes two different reference points, as a few counter-examples will demonstrate. A runner halfway through a 400-meter race on a 400-meter oval running track is “between” the starting line and the finish line, even though they are the same line. Someone halfway through Finnegan‘s Wake is “between” the beginning and the end of the novel, even though it ends where it began. And Benjamin Harrison, like every past President except Washington, served “between” Presidents, even though in Harrison‘s case, those Presidents were the same person (Grover Cleveland). The difference in the two reference points in the majority‘s examples does not flow from anything inherent in the concept оf “between“; rather, it is an artifice of these particular examples. Because there is no such thing as time travel, one cannot arrive, after a journey, at the same moment that one left; the times will necessarily be different. And if one describes an “alley” by reference to its two physical sides on the ground, those sides will necessarily be different, even if (to change the majority‘s example) the alley bisects a single shop. The point is that, although “between” is frequently used to link things that cannot be said to be the same, the majority is wrong in insisting that the word “between” “necessarily” implies that the two reference points must be distinct in all relevant senses. See Opin. at 16 (emphasis added). And, in particular, there is nothing peculiar about saying that a passenger is being transported “between ports” if he leaves
the port of Lahaina, travels around the Molokini Crater, and returns to the port of Lahaina.
Second, the majority‘s reading of the statute violates the rule that a “textually permissible interpretation that furthers rather than obstructs the [statute‘s] purpose should be favored.” ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 63 (2012). The majority‘s reading of the statute is not compelled by its language, and we should not adopt it when it produces irrational distinctions that would pointlessly thwart
- Two snorkel boats leave a Hawaiian harbor, headed to a pristine area off an adjacent island where sea turtles are known to swim. The first docks at an old wooden pier stretching out from the island; the second docks a hundred feet away, at a floating mooring buoy. On the majority‘s view, the passengers on the first ship are protected by
§ 30527(a) , while the passengers on the second ship are not. - Two ships leave the Port of Long Beach for identical day-long whale-watching trips off the California coast. The first is scheduled, upon its return, to dock at a different berth in the Port of Long Beach. The second is scheduled, upon return, to
- dock at a nearby berth that is technically in the adjacent Port of Los Angeles. On the majority‘s view, the passengers on the second ship are protected by
§ 30527(a) , while the passengers on the first ship are not. - A riverboat line offers scenic day tours with two slightly different itinerary options. On the first, an on-board five-star chef prepares lunch, allowing passengers to enjoy the scenery without ever leaving the ship. On the second, the ship docks for an hour at a pier that hosts a well-known local restaurant where the passengers will have lunch. The voyages otherwise travel the same distance, show passengers the same sights, last for the same period of time, and return to the same port. On the majority‘s view, the passengers on the second ship are protected by
§ 30527(a) , while the passengers on the first ship are not.
None of these distinctions makes even the slightest bit of sense. As noted above, the self-evident objective of the statute—like the maritime rule it partly codified—is to preclude operators of vessels that carry passengers into the “perils of the sea” from disclaiming their responsibilities to exercise due care towards those passengers. See Oceanic Steam, 9 F.2d at 727. Viewing the statute in that light, it makes no sense to say that the vessel operator‘s duty to protect against such perils turns on whether the ship touches a distinct port. Congress, of course, is free to enact
seemingly irrational statutes, subject to minimum constitutional limits. But we should not lightly assume that Congress has chosen that route—particularly where a perfectly rational alternative construction is available, compatible with the statutory text and context, and supported by the maritime-law principles underlying the statute. The majority opinion assumes that Congress chose to be irrational in this instance. I do not.
Accordingly, I conclude that the Dauntless counts as a “vessel transporting passengers between ports in the United States.”
C
The key remaining merits question is whether Defendants are correct in alternatively contending that, even if § 30527(a) applies as a threshold matter to the Dauntless, the statute does not void a liability waiver for snorkeling or scuba diving. In support of this argument, Defendants cite the Eleventh Circuit‘s decision adopting this view, at least with respect
enactment of § 30527‘s predecessor, the Supreme Court had held that the common law prohibition of liability waivers for common carriers did not extend to “special engagements which are not embraced within its duty as a common carrier, although their performance may incidentally involve the actual transportation of persons and things, whose carriage in other circumstances might be within its public obligation.” Sante Fe, Prescott & Phoenix Ry. Co. v. Grant Bros. Constr. Co., 228 U.S. 177, 185 (1913) (emphasis added); see also id. (“Manifestly, this rule [against liability waivers] has no application when a railroad company is acting outside the performance of its duty as a common carrier.“). Plaintiff counters that Defendants’ proposed restriction on the scope of § 30527‘s anti-liability-waiver rule simply lacks any basis in the statutory text and therefore was properly rejected by the district court.
Under the unique circumstances of this appeal, I decline to address this question. As I have explained, in my view, we lack jurisdiction over this appeal, and we therefore lack the power to say anything about its merits. Given that the majority has concluded that we do have jurisdiction and has issued a binding precedential opinion holding that § 30527 does not apply to excursions to and from the same port, I nonetheless think it is appropriate for me—despite my dissent on the jurisdictional issue—to proceed to point out why the majority‘s conclusion on that particular merits issue is incorrect and should not have been made the binding law of this circuit. But having done so, I see no reason why I should say anything more. Doing so would be to further exercise a jurisdiction that I do not think we have in order to gratuitously provide my views on additional merits issues that the majority has not discussed. I therefore decline to say anything further concerning the merits of the remaining
issues concerning § 30527 that the majority found unnecessary to reach.12
* * *
For the reasons I have set forth, I would dismiss this appeal for lack of jurisdiction. To the extent that the majority does otherwise, I respectfully dissent.