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In Mount v. Keahole Point Fish, LLC, et al, the district court considered the applicability of the United State Coast Guard Commercial Diving Operations regulations to the vessels at issue and thus the viability of the Plaintiff’s 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 (1958).

Defendant, Blue Ocean Mariculture LLC (“Blue Ocean”) was an aquaculture company engaged in the business of raising fish. Defendant, Keahole Point Fish, LLC (“Keahole Fish”) employed divers to support Blue Ocean’s operations. Plaintiff suffered an inner ear injury caused by a scuba regulator hose that burst near his ear. Plaintiff also asserted he suffered an inguinal hernia while working underwater.

In Kernan, the Supreme Court held that the strict liability principles set forth in the Federal Employer’s Liability Act (“FELA”), apply in Jones Act cases. Accordingly, a violation of a statute or Coast Guard regulation that causes injury or death creates liability in the absence of any showing of negligence.”

The Coast Guard Commercial Diving Operations Regulations apply on their face to any commercial diving operations taking place from vessels required to have a certificate of inspection issued by the Coast Guard. Here, Defendant asserted that the Defendants’ vessels were uninspected fishing vessels not subject to the Coast Guard regulations and thus, they cannot be held per se liable. The Plaintiff asserted that the vessels were classified as towing vessels and as a result subject to inspection. As a result, the dispute centered on whether the vessels could be classified as towing vessels.

A towing vessel is a commercial vessel engaged in the business or service of pulling, pushing, or hauling along side. Here, the district court found that that because of their physical characteristics, customary use, official documentation, and OSHA’s exercise of jurisdiction over the diving operations launched from them, the vessels were not towing vessels and not subject to inspection. As a result the district court held that Coast Guard Commercial Diving Operations Regulations did not apply and could not be the basis of a claim for negligence per se and unseaworthiness per se.