ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Alan C. Kay, Sr. United States District Judge.

For the following reasons, the Court hereby GRANTS Defendants' Motion for Summary Judgment. (Doc. No. 50.) Because the Court concludes that the United States Coast Guard Commercial Diving Operations regulations do not apply to Defendants' Kampachi Vessels, the Court grants judgment in Defendants' favor as to Plaintiffs' claims for negligence per se and unseaworthiness per se. All other claims in the Second Amended Complaint remain.

FACTUAL BACKGROUND1

This is an admiralty case arising out of injuries Plaintiff Richard Mount suffered while working as a crew member and lead diver for Defendant Keahole Point Fish, LLC ("Keahole Fish"). (Def. CSF, Madsen Decl. ¶ 19; SAC ¶ 8.)

Defendant Blue Ocean Mariculture, LLC ("Blue Ocean") is an aquaculture company that raises Hawaiian Kampachi fish in submersed net structures approximately one mile off the coast of Kona, Hawaii. (Madsen Decl. ¶ 4.) In support of its business, Blue Ocean operates the following vessels: the Kona Kampachi I ("Kampachi I"), Official Number 1183797, and the Kona Kampachi II ("Kampachi II"), Official Number 1198834 (together, "Kampachi Vessels"). (Id. ¶ 3.)

Defendant Keahole Fish employs divers and other employees to support Blue Ocean's operations. (Id. ¶ 5.) Plaintiff began working for Keahole Fish in January of 2010.2 (Id. ¶ 19.) Plaintiff Mount asserts that he suffered an ear injury on November 15, 2011, while working aboard the Kampachi I and taking part in a diving operation staged from that vessel. (SAC ¶ 14.) Specifically, a scuba regulator hose burst near his left ear during the dive, causing his alleged injury. (Id.; Def. CSF, Madsen Decl. ¶ 20; Def. CSF, Ex. H ("Report of Work-Related Injury").)

Plaintiff also claims that on September 6, 2012, he suffered an inguinal hernia while working underwater from the Kampachi II, pushing a net "sweep wall" used by the divers to confine fish to prepare them to be harvested. (SAC ¶¶ 16-23.) Plaintiff asserts that he and a group of other divers were pushing the sweep wall net, but at some point all of the other divers had surfaced without Plaintiff's knowledge. (Id. ¶¶ 18-21.) Plaintiff continued pushing against the sweep wall net and felt a sharp pain in his groin. (Id. ¶ 22.) Plaintiff continued working until he reported the incident on January 7, 2013. (Madsen Decl. ¶ 21; Def. CSF, Ex. I ("Report of Work-Related Injury").) Plaintiff was diagnosed with an inguinal hernia for which he underwent surgery at Kaiser Permanente in Kona on January 31, 2013. He continued to experience pain thereafter and, on January 29, 2015, underwent a second surgery at the UCLA Lichetenstein Amid Hernia Clinic. (Mot. at 4.) Plaintiff asserts that he continues to suffer the negative impacts of the injuries he suffered while working for Defendants. (SAC ¶¶ 51-52.)

PROCEDURAL BACKGROUND

On February 28, 2014, Plaintiffs Richard Mount and his wife Ellen Frosch (together, "Plaintiffs") filed their original Complaint against Blue Ocean, in personum, and the M/V KONA KAMPACHI I and M/V KONA KAMPACHI II, in rem. (Doc. No. 1.) Plaintiffs subsequently filed a First Amended Complaint on May 2, 2014, adding as defendants Keahole Fish, and Fish Facts, Inc. (all defendants collectively referred to as "Defendants"). (Doc. No. 15.) In the First Amended Complaint, Plaintiffs brought the following claims: (1) Jones Act Negligence as against all in personum defendants; (2) Unseaworthiness as against Defendants Blue Ocean, Fish Facts, and the Vessels; (3) Maintenance and Cure as against Defendants Keahole Fish Point and the Vessels; and (4) Loss of Consortium as against Defendants Blue Ocean, Fish Facts, and the Vessels. On August 5, 2014, the parties stipulated to the dismissal of Count III, Plaintiffs' maintenance and cure claim. (Doc. No. 29.)

On February 6, 2015, the parties stipulated to stay the instant case for approximately three months to allow Plaintiff Mount time to recover from a surgery he underwent on January 29, 2015.3 (Doc. No. 38.) The stay was lifted on June 26, 2015, and Defendants filed the instant Motion for Summary Judgment, along with a concise statement of facts and numerous supporting exhibits, on July 22, 2015. (Doc. Nos. 50 & 51.)

While the instant Motion was pending, Plaintiffs were granted leave to file a Second Amended Complaint, re-alleging a claim for Maintenance and Cure. (Doc. No. 78.) Plaintiffs therefore filed their Second Amended Complaint on September 22, 2015, alleging the same four counts as alleged in the First Amended Complaint (including the Maintenance and Cure claim that had previously been dismissed via the parties' stipulation). (Doc. No. 80.)

Plaintiffs filed their memorandum in opposition to the instant Motion, along with a concise statement of facts and several exhibits, on October 9, 2015.4 (Doc. Nos. 88 & 89.) Defendants filed their reply on October 19, 2015. (Doc. No. 93.)

A hearing on the Motion5 was held on November 2, 2015.6

STANDARD

Summary judgment is appropriate when a "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The central issue is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If that burden has been met, the nonmoving party must then come forward and establish the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The Court must draw all reasonable inferences in favor of the nonmoving party. Id. at 587, 106 S.Ct. 1348.

In supporting a factual position, a party must "cit[e] to particular parts of materials in the record ... or show[] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 585, 106 S.Ct. 1348. "[T]he requirement is that there be no genuine issue of material fact.... Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505 (emphasis in original). Also, "[t]he mere existence of a scintilla of evidence in support of the non-moving party's position is not sufficient[]" to defeat summary judgment. Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir.1995). Likewise, the nonmoving party "cannot defeat summary judgment with allegations in the complaint, or with unsupported conjecture or conclusory statements." Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003).

DISCUSSION

In the instant Motion, Defendants seek summary judgment as to the applicability of the United States Coast Guard ("USCG") diving regulations and, thus, the viability of Plaintiffs' claims for negligence per se and unseaworthiness per se based upon alleged violations of those regulations, as set forth in Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958).7

In Kernan, the United States Supreme Court held that the strict liability principles set forth in the Federal Employer's Liability Act ("FELA"), 45 U.S.C. §§ 51-60, apply in Jones Act cases,8 and, as such, a violation of a statute or Coast Guard regulation that causes the injury or death of any employee creates liability "in the absence of any showing of negligence." 355 U.S. 426, 431, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958). Thus, under the Jones Act, "the common-law concepts of foreseeability and risk of harm are not applicable where the employer violates a federal statute or a Coast Guard regulation, if such conduct in whole or in part caused injury." MacDonald v. Kahikolu Ltd., 442 F.3d 1199, 1203 (9th Cir.2006).

Here, Plaintiffs assert that Defendants were subject to and violated the Coast Guard's Commercial Diving Operations regulations (codified at 46 C.F.R. § 197.200 et seq.) and are therefore subject to per se liability for Plaintiffs' alleged harm. Defendants counter that the Kampachi Vessels are uninspected fishing vessels not subject to the Coast Guard regulations and, thus, they cannot be held per se liable based upon those regulations. The Court therefore turns to an examination of the applicability of the Coast Guard regulations to the Kampachi Vessels.

The Coast Guard Commercial Diving Operations regulations apply on their face to any "commercial diving operations taking place" from, inter alia, "vessels required to have a certificate of inspection issued by the Coast Guard." 46 C.F.R. § 197.202. Defendants assert that the Kampachi Vessels are fishing vessels and fish tender vessels below a certain size and weight and, as such, are not subject to inspection under 46 U.S.C. § 3301 because of applicable exemptions under 46 U.S.C. § 3302. (See generally Mot.) Plaintiffs do not appear to dispute that the Kampachi Vessels are fishing and fish tender vessels, or that those types of vessels are exempt from inspection; however, Plaintiffs assert that the Kampachi Vessels may nevertheless also be classified as towing vessels under 46 U.S.C. § 3301, such that they are, in fact, subject to Coast Guard inspection.9 (Opp'n at 7-9.) The instant dispute therefore turns on whether the Kampachi Vessels may be classified as towing vessels for purposes of the USCG regulations.

A "towing vessel" is defined by the Coast Guard Regulations as "a commercial vessel engaged in or intending to engage in the service of pulling, pushing, or hauling along side, or any combination of pulling, pushing, or hauling along side." 46 U.S.C. § 2101(40). Noting that this definition's use of the phrase "in the service of" may not be interpreted as mere surplusage, a Vice Commandant of the Coast Guard, in examining this language for purposes of an administrative proceeding, concluded that the definition encompasses all "commercial vessels in the business of towing." U.S. Coast Guard v. License No. 659384 and Merchant Mariner's Doc. No. XXX-XX-XXXX-D1 Issued to: Michael L. Williams, Appellant, Appeal Decision 2566, 1995 WL 17010116, at *5 (USCG May 2, 1995), aff'd, NTSB Order No. EM-181, 1996 WL 30281 (Jan. 4, 1996) (finding that a vessel "returning to Seattle from a towing job in Cherry Point, crewed appropriately for towing, and operated by a towing company" was "in the service of towing" and thus a towing vessel for purposes of USCG regulations).

Here, it does not appear that the Kampachi Vessels are engaged in the business, or "service of pulling, pushing, or hauling along side," as required by the statute. See id. Rather, it appears the Kampachi Vessels are engaged in the business of commercial fish farming. First, the physical characteristics of the vessels and their customary use support this conclusion. The vessels are outfitted for fishing, rather than towing operations. The Kampachi Vessels are former U.S. Navy or Army Landing Craft Mechanized 8 vessels refitted for fish farm tending. (Madsen Decl. ¶ 8; Pl. CSF ¶ 1.) Thus, they are equipped with fish harvesting pumps, cranes, bins to hold fish, scuba gear, fish feeding pumps, fish peroxide treatment pumps, and air compressor and associated hoses to lift the fish pens to the surface. (Madsen Decl., Exs. A, B, E; Pl. CSF ¶ 8.) The vessels make use of this equipment to (1) transport fish from hatcheries to offshore pens, or from existing pens to new ones; (2) carry fish feed and other products from the harbor to the fish pens; (3) clean and move fish pens; (4) feed, clean, and tend to the fish; and (5) harvest fish and transport the harvested fish to shore. (Madsen Decl. ¶¶ 6, 15 & Ex. C.) The vessels do not engage in commercial towing. (Madsen Decl. ¶ 14.) Thus, the equipment aboard the Kampachi Vessels, as well as their apparent customary use, indicate that they are not engaged in the business of towing.

Moreover, the documentation issued by the USCG to the Kampachi Vessels also supports the conclusion that they are fishing, rather than towing, vessels. The Kampachi I's Certificate of Documentation,10 issued by the USCG's National Vessel Documentation Center ("NVDC") states that the vessel's operational endorsements are fishery11 and registry12 only. (Def. CSF, Madsen Decl. ¶ 11 & Ex. F.) Similarly, the Kampachi II's Certification of Documentation states that it also has operational endorsements for fishery and registry only. (Madsen Decl. ¶ 12 & Ex. G.) It is undisputed that neither vessel has a coastwise endorsement, which would entitle them to be used in towing. See 46 C.F.R. § 67.19(a). Indeed, were the Kampachi Vessels to engage in towing without coastwise endorsements, Defendants would be subject to monetary fines and possible forfeiture of the vessels and their equipment. 46 U.S.C. § 12151; 46 C.F.R. § 67.142.

Defendants assert that the USCG, in a letter dated July 1, 2015,13 confirmed, based upon Defendants' description of the vessels' operation and the information contained in the USCG's Marine Information Safety and Law Enforcement database,14 that the Kampachi Vessels are "fish tender vessels15 [and, a]s such, they are not subject to inspection by the U.S. Coast Guard at this time." (Def. CSF, Madsen Decl., Ex. M.) And it is undisputed that the Kampachi Vessels do not, in fact, have USCG Certificates of Inspection. (Def. CSF ¶ 4; Pl. CSF ¶ 4.) Thus, the USCG documentation for the Kampachi Vessels is also persuasive evidence that they are not towing vessels subject to USCG inspection.

Plaintiffs nevertheless argue that, because the Kampachi Vessels have engaged in "substantial" towing activity, they are properly categorized as towing vessels for purposes of the Coast Guard regulations. (Opp'n at 12-13.) To support this argument, Plaintiffs note that the Kampachi Vessels are regularly used (1) to tow component parts of offshore fish cages between the offshore farm site and land, (2) to assist in "cage-flipping," wherein they tow offshore cages into position; and (3) to tow "transfer pens" used to move fish between offshore cages. (Id.) Importantly, however, all of these activities are merely incidental to the business of fish farming. See Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 293 (5th Cir.1990) (stating that, in determining whether a craft qualifies as a "vessel" for purposes of the Jones Act, "it is necessary to focus upon the purpose for which the craft is constructed and the business in which it is engaged," and concluding that a work platform was not a vessel because its movement across navigable waters in the course of normal operations was "merely incidental to the platform's primary purpose" which was not transportation).

Plaintiffs also point to two incidents where the Kampachi Vessels were used in a towing capacity in the aid of others: (1) when they were used to aid in the retrieval of a burst pipe belonging to the Natural Energy Laboratory of Hawaii Authority ("NELHA"); and (2) when they aided a vessel disabled at sea by towing it back into Honokohau Harbor. (Opp'n at 13.) As was the case with the instances of equipment towing incidental to the fish farming operation, the Court believes that these instances of occasional Good Samaritan towing are simply insufficient to reclassify these commercial fishing vessels into towing vessels for purposes of the Coast Guard regulations.

Indeed, the Proposed Regulations promulgated by the Coast Guard establishing the rules governing inspection of towing vessels would expressly exclude from inspection "workboats that do not engage in commercial towing for hire, but may intermittently move a piece of equipment within a work site such as a dredging or construction site; and towing vessels performing assistance towing." Inspecton of Towing Vessels, 76 Fed. Reg. 49976, 49979 (proposed Aug. 11, 2011). The Court notes, however, that this rule has yet to become final and, therefore, is of no force or effect; although, it does reflect that under the current USCG proposal the towing activities the Kampachi Vessels undertake, both incidental to the farming operations and when providing occasional assistance to other vessels, do not suggest that they are in the business of towing, or convert them into towing vessels subject to Coast Guard inspection.16

Finally, the Court notes that the fact that the Kampachi Vessels are currently inspected and regulated by the Occupational Safety and Health Administration ("OSHA") also supports its conclusion that they are not subject to the Coast Guard diving regulations. The OSHA diving regulations do not apply to those diving operations over which the Coast Guard exercises inspection and regulating authority. See Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235, 122 S.Ct. 738, 743, 151 L.Ed.2d 659 (2002) (noting that "OSHA's regulations have been pre-empted with respect to inspected vessels" (emphasis in original)); see also Memorandum of Understanding, U.S. Coast Guard and the Occupational Safety and Health Administration, 48 Fed. Reg. 11366 (March 17, 1983); OSHA AUTHORITY OVER VESSELS AND FACILITIES ON OR ADJACENT TO U.S. NAVIGABLE WATERS AND THE OUTER CONTINENTAL SHELF, Directive No. CPL 02-01-047 at 10 (Feb. 22, 2010) (stating that OSHA has jurisdiction over seamen on vessels not inspected by the Coast Guard); OSHA INSTRUCTION. RE: COMMERCIAL DIVING OPERATIONS, Directive No. CPL 02-00-151 at B-2 (June 13, 2011) ("Under a 1983 Memorandum of Understanding between OSHA and the U.S. Coast Guard, the occupational safety and health of seamen on inspected vessels is the exclusive responsibility of the U.S Coast Guard."). Thus, the OSHA diving regulations only apply to diving operations launched from vessels that are not inspected by the Coast Guard.17

Here, Plaintiffs do not dispute that the Kampachi Vessels are subject to and actually regulated under OSHA's diving regulations. (See Pl. CSF ¶¶ 16-18.) Indeed, in early 2013, OSHA conducted a surprise inspection of the Kampachi Vessels to ensure their compliance with the OSHA diving regulations. (Def. CSF ¶ 18; Pl. CSF ¶ 18.) Moreover, OSHA generally appears to exercise jurisdiction over fish farming operations like Defendants'. Thus, for example, OSHA has issued an Interpretation Letter stating that "[o]perations that are clearly part of the controlled growing and harvesting of fish ... are covered by the OSHA standards for agriculture ... [t]hus, diving operations directly related to activities involving the controlled growing and harvesting of fish, shellfish, and plants are considered agricultural operations." (Def. CSF, Ex. Q (OSHA, Standard Interpretation No. 1928 (Sept. 28, 1982).) It therefore appears that OSHA views commercial fish farming operations like the one at issue here to be governed by the OSHA diving regulations.18

In sum, in light of their physical characteristics, their customary use, their official documentation, and OSHA's exercise of jurisdiction over the diving operations launched from them, the Court concludes that the Kampachi Vessels are not "vessels required to have a certificate of inspection issued by the Coast Guard." 46 C.F.R. § 197.202. Because the Kampachi Vessels are not subject to inspection by the Coast Guard, the Coast Guard Commercial Diving Operations regulations do not apply to the diving operations taking place from them. Id. Plaintiffs therefore cannot base their negligence per se and unseaworthiness per se claims on any alleged violations of those Coast Guard regulations. The Court therefore GRANTS Defendants' Motion for Summary Judgment as to Plaintiffs' negligence and unseaworthiness claims to the extent they are based upon a theory of per se liability.

CONCLUSION

For the foregoing reasons, the Court GRANTS Defendants' Motion for Summary Judgment. (Doc. No. 50.) Because the Court concludes that the United States Coast Guard Commercial Diving Operations regulations do not apply to Defendants' Kampachi Vessels, the Court grants judgment in Defendants' favor as to Plaintiffs' claims for negligence per se and unseaworthiness per se. All other claims in the Second Amended Complaint remain.

IT IS SO ORDERED.