NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHAD BARRY BARNES,

Plaintiff-Appellant,

v.

SEA HAWAII RAFTING, LLC; et al.,

Defendants-Appellees.

No. 18-17154

D.C. No. 

1:13-cv-00002-ACK-RLP

MEMORANDUM*

CHAD BARRY BARNES,

Plaintiff-Appellant,

v.

SEA HAWAII RAFTING, LLC; et al.,

Defendants-Appellees.

No. 19-15646

D.C. No. 

1:13-cv-00002-ACK-RLP

CHAD BARRY BARNES,

Plaintiff-Appellant,

v.

No. 19-16484

D.C. No. 

1:13-cv-00002-ACK-WRP

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

SEP 22 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

ALOHA OCEAN EXCURSIONS LLC,

Defendant-Appellee,

and

SEA HAWAII RAFTING, LLC; et al.,

Defendants.

CHAD BARRY BARNES,

Plaintiff-Appellee,

v.

ALOHA OCEAN EXCURSIONS LLC,

Defendant-Appellant,

and

SEA HAWAII RAFTING, LLC; et al.,

Defendants.

No. 19-16910

D.C. No. 

1:13-cv-00002-ACK-WRP

Appeal from the United States District Court

for the District of Hawaii

Alan C. Kay, District Judge, Presiding

CHAD BARRY BARNES,

Appellant,

No. 19-17613

D.C. No. 

1:16-cv-00588-JAO-WRP
3

v.

KRISTIN KIMO HENRY; NIMA 

GHAZVINI, Trustee,1

Appellees.

Appeal from the United States District Court

for the District of Hawaii

Jill Otake, District Judge, Presiding

CHAD BARRY BARNES,

Appellant,

v.

KRISTIN KIMO HENRY; et al.,

Appellees.

No. 19-17614

D.C. Nos. 

1:19-cv-00212-DKW-RT

1:19-cv-00213-DKW-RT

1:19-cv-00215-DKW-RT

Appeal from the United States District Court

for the District of Hawaii

Derrick Kahala Watson, District Judge, Presiding

Argued and Submitted February 2, 2021

Honolulu, Hawaii

Before: CLIFTON, R. NELSON, and COLLINS, Circuit Judges.

1 The pending motions to substitute party/notices of substitution of party will be 

addressed in a separate order.
4

Chad Barnes, a seaman, was injured when there was an explosion on the 

vessel on which he was working. He brought various claims in admiralty against 

Sea Hawaii Rafting, LLC (“SHR”) (his employer and the vessel owner), individual 

Kristin Henry (SHR’s sole member and owner), and the Tehani (the vessel in rem). 

SHR and Henry declared bankruptcy. The district court and bankruptcy court 

proceedings progressed concurrently.

These consolidated interlocutory appeals arise from a bench trial in Barnes’s 

favor, the denial of various motions relating to Barnes’s attempts to recover awards 

from that trial, the district court’s vacatur of a bankruptcy court order, and the 

district court’s affirmance of a bankruptcy court discharge. Henry’s new company, 

Aloha Ocean Excursions, LLC (“AOE”), cross-appeals one order.

Although we are sympathetic to Barnes’s recovery efforts, we cannot 

provide him the relief he seeks. We affirm in part and dismiss in part for lack of 

jurisdiction. 

18-17154:

We have jurisdiction over Barnes’s appeal of the maintenance and cure 

bench trial. The trial determined the “rights and liabilities” of the parties: the 

district court determined the extent of liability against SHR and the Tehani in favor 
5

of Barnes on his maintenance and cure claims.2 28 U.S.C. § 1292(a)(3); Barnes v. 

Sea Hawaii Rafting, LLC, 889 F.3d 517, 528 (9th Cir. 2018) (stating that exercise 

of jurisdiction under § 1292(a)(3) is only appropriate when the order below is 

“substantive in nature” and involves the “merits” of the claims, as opposed to 

orders that make “adjective, tactical, or procedural” determinations). 

We do not have jurisdiction over the issues raised that fall outside of the 

scope of the district court’s maintenance and cure decision.

3

 See Swint v. 

Chambers Cnty. Comm’n, 514 U.S. 35, 50 (1995) (holding that the scope of 

interlocutory jurisdiction is generally limited to the “precise decision 

independently subject to appeal”). 

At oral argument, Barnes expressly abandoned his argument that the district 

court’s maintenance and cure decision against SHR and the Tehani should be 

2 We do not have jurisdiction under 28 U.S.C. § 1291 because, although the district 

court entered a partial amended judgment under Federal Rules of Civil Procedure 

54(b) and 59(e), the district court did not certify that judgment for immediate 

appeal. See Frank Briscoe Co. v. Morrison-Knudsen Co., 776 F.2d 1414, 1416 

(9th Cir. 1985) (holding that a district court’s express determination that there was 

no just reason for delay is a jurisdictional requirement under Rule 54(b)).

3 Specifically, we do not have jurisdiction over the issues of whether: (1) the 

district court erred in refusing to arrest the Tehani before the judgment; (2) the 

district court erred by not allowing Barnes to pursue a “piercing the corporate veil” 

theory at trial; and (3) the bankruptcy court unconstitutionally interfered in 

Barnes’s admiralty trial on maintenance and cure.
6

vacated. He argues that we should additionally impose liability against Henry. 

This we cannot do. As the district court recognized, Henry was not a defendant in 

the maintenance and cure trial. Because Henry was not a defendant at that trial, the 

district court did not determine his liability. Thus, that issue is not among the 

matters “determin[ed]” by the district court over which we may assert jurisdiction 

under § 1292(a)(3).

The district court did not abuse its discretion, see Kumho Tire Co. v. 

Carmichael, 526 U.S. 137, 152 (1999), in prohibiting two of Barnes’s witnesses 

from testifying as expert witnesses at the maintenance and cure trial. Barnes 

conceded that he did not timely disclose those witnesses and he did not 

substantially justify that untimeliness. See Goodman v. Staples The Office 

Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011) (holding that, when a party 

fails to make disclosures required by Federal Rule of Civil Procedure 26(a), the 

party is disallowed from using the witness to supply evidence unless it establishes 

that the failure was substantially justified or was harmless). 

Barnes also raises a handful of arguments related to how the district court 

erred in calculating his maintenance and cure award. None of them are persuasive. 

To the extent that Barnes contends that he was prejudiced by his refusal to enter 
7

into a proposed stipulation concerning maintenance and cure, he has failed to 

demonstrate any such prejudice on appeal.

19-15646:

We have jurisdiction over the issue of whether the commercial use permit 

was an appurtenance of the Tehani. Like the issue of whether Barnes could assert 

in rem claims against the Tehani, that subsidiary question is sufficiently 

“substantive in nature” because it involves Barnes’s potential “right” to the permit 

in the in rem proceedings. See Barnes, 889 F.3d at 528. 

We do not have jurisdiction to consider the district court’s denial of Barnes’s 

request to be appointed substitute custodian of the Tehani. That was an “adjective, 

tactical, [and] procedural” determination. See id. We do not have jurisdiction over 

the issues raised that fall outside of the scope of the district court’s order regarding 

the commercial use permit and appointment of substitute custodian.4 See Swint, 

514 U.S. at 50.

Reviewing de novo, see Lim v. City of Long Beach, 217 F.3d 1050, 1054 

(9th Cir. 2000), we hold that the commercial use permit was not an appurtenance 

4 Specifically, we do not have jurisdiction over the issues of whether: (1) the 

district court was mistaken in requiring Barnes to prepay the marshal’s arrest costs; 

(2) the conflict between 28 U.S.C. § 1916 and 28 U.S.C. § 1921 is a violation of 

Barnes’s due process rights and inconsistent with the law of maintenance and cure; 

(3) the district court erred in providing Barnes with $10,000 for maintenance and 
8

of the Tehani. It is undisputed that the permit was issued to SHR as a corporation 

and cannot be automatically transferred with the Tehani. See Haw. Code R. § 13-

231-62(b)(2)(B) (“A commercial use permit . . . shall automatically expire . . . [i]f 

the vessel or vessels operated under the commercial use permit . . . are sold or 

otherwise transferred . . . .”). That is determinative here because, to qualify as an 

appurtenance, the permit would have to be transferable with the Tehani. 

19-16484/19-16910:

We have jurisdiction under 28 U.S.C. § 1292(a)(1) to consider the district 

court’s refusal to stay the disbursal of the funds. That order had the practical effect

of denying an injunction to stay disbursal of funds. See Gulfstream Aerospace 

Corp. v. Mayacamas Corp., 485 U.S. 271, 287–88 (1988) (holding that 

§ 1292(a)(1) provides appellate jurisdiction over orders that have the practical 

effect of denying an injunction). We have jurisdiction over the district court’s 

denial of Barnes’s motion to dismiss AOE’s claim to the funds from the sale of the 

Tehani. That decision is “inextricably intertwined” with the decision to not stay 

then directing Barnes to use his maintenance payment to pay for the marshal’s 

costs related to the arrest; and (4) the district court has jurisdiction over the 

contract for the sale of the Tehani by the chapter 7 trustee to AOE and Henry. 
9

disbursal of the funds. See Puente Arizona v. Arpaio, 821 F.3d 1098, 1109 (9th 

Cir. 2016).

Reviewing de novo, Ventura Packers, Inc. v. F/V Jeanine Kathleen, 305 

F.3d 913, 916 (9th Cir. 2002), we hold that the district court had jurisdiction over 

the funds and did not err in denying Barnes’s motion to dismiss. The district court 

has subject matter jurisdiction over the lawsuit generally because Barnes’s claims 

do not arise from the sale of a vessel or a contract but rather from various other 

admiralty claims, including unseaworthiness, various theories of negligence, and 

intentional infliction of emotional distress. The district court has exclusive in rem 

jurisdiction over the Tehani, and the bankruptcy court has no jurisdiction over it. 

See Barnes, 889 F.3d at 533. Any proceeds the bankruptcy court received when it 

improperly retained jurisdiction over the Tehani should have, and would have,

properly fallen within the district court’s jurisdiction. See Barnes, 889 F.3d at 524 

(district court never lost its in rem jurisdiction, despite bankruptcy court’s actions); 

cf. Ventura Packers, Inc. v. F/V Jeanine Kathleen, 424 F.3d 852, 860–61 (9th Cir. 

2005) (in rem jurisdiction remained even though res was erroneously released); see 

also Fed. R. Civ. P. Supp. Adm. & Mar. Cl. R. C(3)(c), E(9)(b).

The district court did not abuse its discretion in its calculation of the amount 

of funds it chose to disburse based on a determination of a lease amount that was 
10

the same as the bankruptcy court. See Teutscher v. Woodson, 835 F.3d 936, 942 

(9th Cir. 2016) (district court’s award of equitable relief is reviewed for abuse of 

discretion). Barnes had ample opportunity to, and did indeed, argue to the district 

court what amount should be disbursed to him. Because the district court 

independently concluded that a rent of $500 per month was reasonable, Barnes was 

not deprived of any right to have this issue decided by an Article III tribunal.

We have jurisdiction over AOE’s cross-appeal regarding the district court’s 

direction to transfer the permit. That order had the practical effect of directing

injunctive relief. See Abbott v. Perez, 138 S. Ct. 2305, 2319 (2018) (stating that 

§ 1292(a)(1) provides appellate jurisdiction over orders that have the “practical 

effect” of granting injunctive relief). However, the issue is moot. AOE did not 

comply with the district court’s directive, and the district court is no longer seeking 

to enforce its directive. Therefore, there is no harm to remedy. See Earth Island 

Inst. v. United States Forest Serv., 442 F.3d 1147, 1157 (9th Cir. 2006) (internal 

quotations omitted), abrogated on other grounds by Winter v. Natural Res. Def. 

Council, Inc., 555 U.S. 7 (2008). To the extent AOE challenges the subsequent 

imposition of sanctions for its non-compliance with the district court’s order, the

sanctions orders are outside the scope of the order appealed. See Swint, 514 U.S. at 

50.
11

We deny AOE’s offhand request that Barnes’s appeals be deemed frivolous. 

See In re George, 322 F.3d 586, 591–92 (9th Cir. 2003).

19-17613:

We lack jurisdiction over the district court’s order vacating the bankruptcy 

court’s approval of the sale of the Tehani. The district court’s order is not a final 

decision within the meaning of 28 U.S.C. § 158(d)(1). Cf. Bank of New York 

Mellon v. Watt, 867 F.3d 1155, 1158 (9th Cir. 2017) (holding that a district court’s 

order vacating a bankruptcy court order and remanding “[is] rarely [a] final 

appealable order[]”). 

19-17614:

We have jurisdiction to consider Henry’s discharge because it was a final 

judgment of a bankruptcy court. Espinosa v. United Student Aid Funds, Inc., 553 

F.3d 1193, 1199 (9th Cir. 2008), aff’d, 559 U.S. 260 (2010). We have jurisdiction 

to review the denial of the motion to stay discharge and lift protective order 

because a final judgment confers jurisdiction over “all earlier, non-final orders and 

rulings which produced the judgment.” Litchfield v. Spielberg, 736 F.2d 1352, 

1355 (9th Cir. 1984). 

The bankruptcy court did not err in declining to lift the protective order

because the protective order only prevented Barnes from using the bankruptcy 
12

court proceedings to obtain discovery relevant to his district court case. Barnes 

was free to, and did, request discovery in the district court. Indeed, the district 

court has since allowed Barnes to conduct discovery on the exact issues he sought 

in the bankruptcy court.

Reviewing the bankruptcy court’s legal conclusions de novo and its factual 

findings for clear error, In re Gilman, 887 F.3d 956, 963 (9th Cir. 2018), we hold 

that Henry’s discharge was proper.5 The sections of the bankruptcy code that 

Barnes relies on in arguing to the contrary only allow for a bankruptcy court to 

revoke a discharge, see 11 U.S.C. § 1328(e), or detail types of debts that are not 

dischargeable, see 11 U.S.C. § 523(a)(9); 11 U.S.C. § 1328(a)(4) — they do not 

require a bankruptcy court to deny discharge if a debtor has debts that fall under 

them. Barnes waived or forfeited his other arguments because they are 

undeveloped or were not first raised to the bankruptcy court. See In re Cybernetic 

Servs., Inc., 252 F.3d 1039, 1045 n.3 (9th Cir. 2001). His further arguments are 

not relevant to the bankruptcy court’s discharge of Henry or speak to how the 

bankruptcy court erred in discharging Henry.

5 We do not decide and express no opinion on the scope of the debts that Henry 

had discharged. We do note, however, that Henry concedes that any post-petition 

conduct, including fraudulent conduct, is exempt from the discharge.
13

Costs to be taxed against Barnes. 

AFFIRMED IN PART AND DISMISSED IN PART.