Ninth Circuit Refuses to Apply the Pennsylvania Rule to Jones Act Claim
Plaintiff MacDonald appealed the district court's judgment in his Jones Act suit against defendant Kahikolu, Ltd. Kahikolu conducts whale watching, scuba, and snorkeling tours off the coast of Maui, Hawaii. MacDonald worked as a deck hand, lifeguard and, as part of his job, occasionally made free dives. A "free dive" is an underwater dive done on a single breath without scuba equipment or other underwater breathing apparatus. On one outing, Macdonald was working aboard Kahikolu's Frogman II and undertook a free dive to retrieve a mooring line from the sea floor at a depth of approximately 46 feet. As he descended, MacDonald injured his left ear trying to equalize the pressure in his ears, resulting in permanent hearing loss, dizziness, and tinnitus. MacDonald appealed arguing that the district court should have applied the rule from The Pennsylvania, 86 U.S. (1 Wall.) 125 (1873).
The Pennsylvania Rule is a longstanding rule of admiralty law. The rule holds that where a vessel is in violation of a statutory regulation, the burden of proof of causation shifts from the plaintiff to the defendant. In such cases it is for the defendant to establish by clear and convincing evidence that the violation was not the cause of the harm in respect of which the suit is being prosecuted by the plaintiff. Recently, personal injury plaintiffs have sought to apply the Pennsylvania Rule with respect to Jones Act cases. This is important because the Pennsylvania Rule also dictates that the vessel owner defendant is thereafter strictly liable and cannot plead contributory negligence as an assertive defense if the defendant fails to prove its burden.
Judge Fletcher, delivering the opinion of the United States Court of Appeals for the Ninth Circuit, held that although it was undisputed that Kahikolu violated C.F.R. §197.420 by not having an operations manual aboard the ship at the time of MacDonald's accident, it was unclear whether the court should apply the Pennsylvania Rule to cases that did not involve a collision or another "navigational" accidents. MacDonald v. Kahikolu, Ltd. (September 10, 2009). The Court reasoned that beyond man-overboard cases, no court has applied the Rule to a Jones Act claim, except for the Second Circuit. However, in another Jones Act case heard that same year, the Second Circuit ruled against extending the Rule beyond the area of ship collisions.Id at MacDonald v. Kahikolu, Ltd. (September 10, 2009).
Upon review of the facts, the Ninth Circuit decided it did not need to settle on the scope of thePennsylvania Rule because even if the Rule applies to Jones Act claims, it would not apply here. In order for the Rule to apply, a plaintiff must prove there was a causal connection between the violation and the injury before the Rule can be applied. In this case, the Court held that MacDonald failed to show such a connection because the regulations violated were not intended to protect against the injuries he suffered.
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