The Ninth Circuit just published an opinion relating to the Jones Act and a worker injured while conducting a “free dive” incident to the employer’s vessel operations.

The case is MacDonald v. Kahikolu, Ltd., No. 08-15239, download here.

In MacDonald, a vessel employee was injured while “free diving” to support anchoring of the vessel.  The U.S. Coast Guard does regulate diving from vessels, but such diving does not include “free diving.” 

At issue in the appeal was to what extent the violation of Coast Guard safety regulations caused the injury to the plaintiff.  Supplementing that issue was to what extent do employers bear the burden of proof to establish causation.  The applicable precedent is The Pennsylvania, 86 U.S. (19 Wall.) 126 (1873).  The Pennsylvania Rule puts the burden of proof on ship owners to show that the violation of the regulation did not cause plaintiff’s injury.

The Ninth Circuit noted that the origins of the Pennsylvania Rule were from vessel collision cases.  Simply put, if you are violating a navigation statute or regulation and a collision occurs, you bear the burden to prove that your conduct did not cause the plaintiff’s injury.  In MacDonald, the ship owner was violating Coast Guard regulations by not having a diving supervisor onboard and not having an operations manual onboard the vessel.  But, the Court found that these regulatory violations did not cause the plaintiff’s injuries.  While finding that the plaintiff did not even meet the threshold of proving that there was a causal connection between the violation and the injury, the court also declined to extend the Pennsylvania Rule to contexts outside of the collision one.