Federal Judiciary

MacDonald v. Kahikolu (9th Cir. - Sept. 10, 2009)

By Shaun Martin

Chris MacDonald was working on a whalewatching and snorkeling ship in Hawai'i (nice life!) when he performs a free dive to retrieve a mooring line that's on the sea floor around 46 feet down. But he bursts his eardrum when he tries to equalize pressure, and he then sues the owners of the ship.

He loses at a bench trial. But then appeals to the Ninth Circuit, which reverses, holding that the wrong legal standard was applied and that a particular admiralty law principle -- one that's very difficult for defendants to meet -- should have been applied. So then back down to Judge Kobayashi the case goes, but again the lower court decides in favor of the defendants. Hence another appeal back to the Ninth.

But this time, the decision is affirmed. Yep, it's a tough standard. But the district court applied it (this time), and defendants satisfied their burden. Sure, they didn't have the required operations manual. But that didn't cause the accident -- even "in the slightest" -- since the manual didn't have to say anything about free diving in any event; plus, the employees had done tons of these alreay, and a manual wouldn't have made a difference. Stuff happens. Eardrums burst. That's one of the downsides of being under 46 feet of water. When you try to equalize the pressure in your ear canal, sometimes you blow too long or too hard. (Trust me, I know.) That's the downside of diving down deep.

So after all this -- after two shots at the district court, and two shots in the Ninth -- MacDonald loses. Good job by the defendants not settling after the intial loss in the Ninth. And sorry for MacDonald and his counsel. Like trips to 46 feet, not every trip to the Ninth Circuit gets you what you want.

Full post as published by California Appellate Report on September 28, 2009 (boomark / email).