FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRISTOPHER MACDONALD, 

Plaintiff-Appellant, No. 08-15239

v. D.C. No.  CV-02-00084-LEK KAHIKOLU, LTD., doing business as

Frogman Charters, OPINION

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Hawaii

Leslie E. Kobayashi, Magistrate Judge, Presiding

Argued and Submitted

June 12, 2009—San Francisco, California

Filed September 10, 2009

Before: Procter Hug, Jr., Betty B. Fletcher and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge B. Fletcher

13143
COUNSEL

John R. Hillsman, McGuinn, Hillsman & Palefsky, San Francisco, California; Howard G. McPherson, Cronin, Fried,

Sekiya, Kekina & Fairbanks, Honolulu, Hawaii, for the

plaintiff-appellant.

Richard C. Wootton and Mitchell S. Griffin, Cox, Wootton,

Griffin, Hansen & Poulos, LLP, San Francisco, California, for

the defendant-appellee.

MACDONALD v. KAHIKOLU, LTD. 13145
OPINION

B. FLETCHER, Circuit Judge:

For a second time, plaintiff Christopher MacDonald

appeals the district court’s judgment after a bench trial in his

Jones Act suit against defendant Kahikolu, Ltd. MacDonald

worked as a crew member aboard one of Kahikolu’s ships and

was injured while performing a “free dive,” an underwater

dive done on a single breath without scuba equipment or other

underwater breathing apparatus. In a prior opinion, a separate

panel of this court vacated the district court’s judgment, and

remanded for the district court to consider whether Kahikolu’s

failure to comply with Coast Guard regulations played any

part in causing MacDonald’s injuries. See MacDonald v.

Kahikolu Ltd., 442 F.3d 1199, 1200 (9th Cir. 2006). On

remand, the district court held that Kahikolu’s failure to comply with the regulations did not cause MacDonald’s injuries

and again entered judgment for the company. MacDonald

appeals, arguing that the district court should have applied the

rule from The Pennsylvania, 86 U.S. (1 Wall.) 125, 136

(1873), which puts on the ship owner the burden of proving

that its violation of a statute or regulation did not cause the

injury.

We have jurisdiction under 28 U.S.C. § 1291. Because we

conclude that the Pennsylvania Rule does not apply here, we

affirm.

I.

The factual background is set forth in MacDonald, and we

reprise it here only insofar as is necessary.

Kahikolu conducts whale watching, scuba, and snorkeling

tours off the coast of Maui, Hawaii. MacDonald, 442 F.3d at

1200. MacDonald worked as a deck hand and lifeguard for

Kahikolu and, as part of his job, periodically made free dives.

13146 MACDONALD v. KAHIKOLU, LTD.
Id. 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, a depth of about 46 feet. Id.

However, as he descended to the sea floor, he injured his left

ear trying to equalize the pressure in his ears.1Id. As a result,

MacDonald had to be treated for permanent hearing loss, dizziness, and tinnitus. Id.

MacDonald sued Kahikolu, alleging a violation of the

Jones Act, 46 U.S.C. § 30104, for failure to provide a safe

work environment, among other claims.2Id. After a bench

trial, the district court found that MacDonald was an experienced free diver who regularly had made many dives to

depths of 30, 40, and 50 feet without ear pain or injury. Id. at

1201. The court also found that Kahikolu employees had

made thousands of free dives without injury and that the

activity was not inherently dangerous. Id. Although the court

found that Kahikolu had inadequately trained MacDonald

regarding free dives, the court ultimately found Kahikolu not

negligent because it did not have notice of any unsafe condition. Id. 

Before the district court and in his prior appeal, MacDonald

argued that Kahikolu was negligent per se, because it had not

complied with Coast Guard regulation 46 C.F.R.

§ 197.420(a)(1), which required the company to provide an

1Being underwater exerts pressure on a diver in excess of that at sea

level, creating a pressure differential between the ambient environment

and internal cavities such as the sinuses and middle ear. The pressure can

be equalized using what is called the “Valsalva maneuver,” which

involves holding the nose and gently blowing. See MacDonald, 442 F.3d

at 1200 n.2. Injury occurs if the diver blows too forcefully or too long. Id.

2The Jones Act provides that “[a] seaman injured in the course of

employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law, with the right

of trial by jury, against the employer,” under the same laws applying to

such suits by railway employees, i.e., the Federal Employers’ Liability

Act, 45 U.S.C. § 51. 46 U.S.C. § 30104. 

MACDONALD v. KAHIKOLU, LTD. 13147
operations manual to the person in charge of the dive.3

Id. at

1200. The district court rejected this theory, because it held

that the regulations applied only to commercial scuba divers,

not to free divers. Id. at 1201. 

On appeal, we reversed the district court out of concern that

3

46 C.F.R. § 197.420 states: 

(a) The diving supervisor shall— 

(1) Provide an operations manual to the person-in-charge prior

to commencement of any diving operation; and 

(2) Make an operations manual available at the dive location

to all members of the dive team. 

* * * 

(c) The operations manual must provide for the safety and health

of the divers. 

(d) The operations manual must contain the following: 

(1) Safety procedures and checklists for each diving mode

used. 

(2) Assignments and responsibilities of each dive team member for each diving mode used. 

(3) Equipment procedures and checklists for each diving mode

used. 

(4) Emergency procedures for— 

(i) Fire; 

(ii) Equipment failure; 

(iii) Adverse environmental conditions including, but not

limited to, weather and sea state; 

(iv) Medical illness; and 

(v) Treatment of injury. 

(5) Procedures dealing with the use of— 

(i) Hand-held power tools; 

(ii) Welding and burning equipment; and 

(iii) Explosives. 

13148 MACDONALD v. KAHIKOLU, LTD.
the court erred in failing to consider the applicability of Kernan v. American Dredging Co., 355 U.S. 426 (1958). In Kernan, the Supreme Court held that under the Federal

Employers’ Liability Act and the Jones Act, an employer is

liable for the injury or death of an employee if it is caused “in

whole or in part[ ] by the employer’s fault,” including by

breach of a common law or statutory duty. Id. at 432. Kernan

thus dispenses with the traditional negligence per se requirement that the statute must be designed to prevent the kind of

injury actually at issue. See MacDonald, 442 F.3d at 1203.

Pursuant to Kernan, MacDonald would be entitled to recover

damages if Kahikolu’s violation played any part in causing

his injury, no matter how slight. Id. 

We remanded with the following instructions:

The record shows that the commercial diving regulations expressly applied only to persons using underwater breathing apparatus and not to free divers. It

is not clear, however, whether the district court

applied the appropriate causation standard in determining that Kahikolu was not liable for Mr. MacDonald’s injuries. Accordingly, we vacate the

judgment and remand with instructions that the district court determine whether the failure of Kahikolu

to comply with Coast Guard regulations played any

part, “ ‘even the slightest,’ ” in producing Mr. MacDonald’s injuries and enter a new judgment in accordance with that finding. 

Id. (citation omitted).

On remand, the district court again found in favor of

Kahikolu. While the regulations required Kahikolu to have a

dive operations manual aboard the Frogman II, the district

court found “little, if any, evidence to support Plaintiff ’s contention that the absence of a dive manual aboard the vessel

contributed, even in the slightest, to Plaintiff ’s injuries.”

MACDONALD v. KAHIKOLU, LTD. 13149
According to the district court, the applicable regulations are

“simply void of any discussion relating to free diving,” so

having an operations manual would not have affected what

happened to MacDonald on his free dive. Thus, the district

court concluded that Kahikolu’s failure to comply with the

applicable Coast Guard regulations did not play any part in

producing MacDonald’s injuries.

In so deciding, the district court declined to apply the Pennsylvania Rule, and alternatively held that even if the Pennsylvania Rule applied, Kahikolu had met its burden under the

Rule. MacDonald now challenges those decisions.

II.

We review the district court’s conclusions of law, including

whether the Pennsylvania Rule applies, de novo. Ambassador

Hotel Co. v. Wei-Chuan Investment, 189 F.3d 1017, 1024 (9th

Cir. 1999). Findings of fact following a bench trial are

reviewed for clear error. Id. If the Pennsylvania Rule applies,

application of the Rule to the facts is also reviewed for clear

error. See Churchill v. F/V Fjord, 892 F.2d 763, 770 (9th Cir.

1988); Trinidad Corp. v. S.S. Keiyoh Maru, 845 F.2d 818, 827

(9th Cir. 1988).

III.

The Pennsylvania Rule is a longstanding rule of admiralty

law, and we have often applied it in this circuit. See, e.g.,

Exxon Co. v. Sofec, Inc., 54 F.3d 570, 577 (9th Cir. 1995);

Trinidad Corp., 845 F.2d at 825; see also Mathes v. Clipper

Fleet, 774 F.2d 980, 982 (9th Cir. 1985) (listing cases). Under

the Rule, if a vessel involved in an accident violated a statute

or regulation intended to prevent such an incident, it is presumed that the ship owner was at fault, and the burden of

proving causation shifts to the ship owner. See The Pennsylvania, 86 U.S. (19 Wall.) at 136. As the Supreme Court

explained,

13150 MACDONALD v. KAHIKOLU, LTD.
The liability for damages is upon the ship or ships

whose fault caused the injury. But when, as in this

case, a ship at the time of a collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption

that the fault, if not the sole cause, was at least a contributory cause of the disaster. In such a case, the

burden rests upon the ship of showing not merely

that her fault might not have been one of the causes,

or that it probably was not, but that it could not have

been.

Id. The Court justified imposing such a heavy burden by stating that the rule “is necessary to enforce obedience to the

mandate of the statute.”

4

See id. at 136.

[1] The burden imposed by the Pennsylvania Rule has been

described as “ ‘difficult, if not impossible,’ ” to discharge.

Trinidad Corp., 845 F.2d at 825 (quoting Ishizaki Kisen Co.

v. United States, 510 F.2d 875, 879 (9th Cir. 1975)). Nevertheless, the presumption is rebutted where the defendant

shows by clear and convincing evidence that the violation

could not reasonably be held to have been a proximate cause

of the injury. Id. at 824 (quoting States S.S. Co. v. Permanente

S.S. Corp., 231 F.2d 82, 87 (9th Cir. 1956)). 

It is undisputed that Kahikolu violated 46 C.F.R. § 197.420

by not having an operations manual aboard the ship at the

time of MacDonald’s accident. MacDonald also argues that

Kahikolu failed to designate a “person-in-charge” of the vessel and a “diving supervisor,” as required by 46 C.F.R.

§§ 197.208(a) and 197.210(a).5

4The Rule now applies to violations of either statutes or regulations. See

Mathes, 774 F.2d at 982 n.1. 

5Under the regulations, the diving supervisor must be “fully cognizant

of the provisions of the operations manual required by § 197.420” and is

“in charge of the planning and execution of the diving operation including

the responsibility for the safety and health of the dive team.” 46 C.F.R.

§ 197.404(a)(2), (b). 

MACDONALD v. KAHIKOLU, LTD. 13151
Despite these regulatory violations, it is not clear that the

Pennsylvania Rule applies to cases that do not involve a collision or other “navigational” accident, or to claims made under

the Jones Act. In Mathes, we decided that the Rule did not

apply to a personal injury claim brought by a plaintiff whose

foot was pinned between two ships. 774 F.2d at 982-83. The

crew member on one of the ships did not have a local

endorsement aboard the ship, as required by Coast Guard regulations. Id. at 983. We declined to apply the Rule, because

there was “no conceivable causal connection between the violation and the injury,” and under the Rule, “if it clearly

appears the fault could have had nothing to do with the disaster, it may be dismissed from consideration.” Id. at 983 (citation omitted). We did not, however, explicitly address

whether the Pennsylvania Rule could apply to cases that do

not involve a collision or navigational accident, nor do any of

our prior cases do so.6

Some other courts have applied the Rule broadly to noncollision and non-navigation cases. For example, the Third

Circuit has stated that “[a]lthough the Rule originally applied

only to collisions between ships, it has been reformulated to

apply to any statutory violator who is a party to a maritime

accident.” In re Nautilus Motor Tanker, 85 F.3d 105, 113 (3d

Cir. 1996) (citing Pennzoil Producing Co. v. Offshore

Express, Inc., 943 F.2d 1465, 1471 (5th Cir. 1991)); see also

United States v. Nassau Marine Corp., 778 F.2d 1111, 1116

(5th Cir. 1985) (“The Rule does not apply only to collisions.”); Reyes v. Vantage S.S. Co., 609 F.2d 140, 145-46 (5th

Cir. 1980) (applying Rule to Jones Act man-overboard case);

6The Alaska Supreme Court in Marine Solution Services, Inc. v. Horton,

70 P.3d 393, 406-07 (Alaska 2003), interpreted Mathes as assuming that

the Rule applies to Jones Act personal injury claims. However, the plaintiff in Mathes sought to apply the Rule to a third party, not to his

employer, so it was not, strictly speaking, a Jones Act claim. See Mathes,

774 F.2d at 981-83. In any event, Mathes did not discuss at all whether

the Rule did or should apply to personal injury claims and ultimately

found that the Rule did not apply. 

13152 MACDONALD v. KAHIKOLU, LTD.
In re Seaboard Shipping Corp., 449 F.2d 132, 136 (2d Cir.

1971) (applying Rule to man-overboard case and stating that

defendant was wrong “in its contention that admiralty applies

this rule only in collision cases”). However, beyond manoverboard cases, no court has applied the Rule to a Jones Act

claim, except for the Alaska Supreme Court in Horton. 70

P.3d at 407. Indeed, although the Second Circuit applied the

Pennsylvania Rule in Seaboard Shipping, a Jones Act case, it

also stated in another Jones Act case—decided the same year

as Seaboard Shipping—that it would not extend the Rule

beyond “the chosen area of ship collisions.” Wilkins v. Am.

Export Isbrandtsen Lines, Inc., 446 F.2d 480, 486 (2d Cir.

1971). It recently has reiterated its skepticism about whether

the Rule should apply to Jones Act claims at all. See Wills v.

Amerada Hess Corp., 379 F.3d 32, 43-45 (2d Cir. 2004)

(“Even if we were persuaded that The Pennsylvania Rule

should be applied in some Jones Act cases, we would still

decline to apply the rule in cases where, as here, it cannot be

said with confidence that the plaintiff ’s injury resulted from

defendant’s actions.”).

[2] In this case, we need not decide how far the Pennsylvania Rule reaches beyond its traditional domain of ship collisions and navigational accidents, because even if the Rule

applies to Jones Act claims, it would not apply here. All

courts have consistently required that there be a threshold

causal connection between the violation and the injury before

the Rule will apply. See, e.g., Mathes, 774 F.2d at 983; Wills,

379 F.3d at 44; Seaboard Tug & Barge v. Rederi AB/Disa,

213 F.3d 772, 775 (1st Cir. 1954); Horton, 70 P.3d at 407. In

part, this has meant that the injury must be of the kind

intended to be prevented by the statute or regulation that the

defendant violated.7See Wills, 379 F.3d at 43 (holding that

7

It is this requirement that illustrates one of the differences between the

Pennsylvania Rule and negligence per se after Kernan. Kernan dispenses

with the traditional negligence per se requirement that the statute must be

designed to prevent the kind of injury actually at issue. See MacDonald,

MACDONALD v. KAHIKOLU, LTD. 13153
application of the Rule is “limited to the violation of a statute

intended to prevent the catastrophe which actually transpired”); Nautilus Motor Tanker Co., 85 F.3d at 114 (requiring three elements to be met for the Rule to apply: “(1) proof

by a preponderance of the evidence of violation of a statute

or regulation that imposes a mandatory duty; (2) the statute or

regulation must involve marine safety or navigation; and (3)

the injury suffered must be of a nature that the statute or regulation was intended to prevent”); Folkstone Mar., Ltd. v. CSX

Corp., 64 F.3d 1037, 1047 (7th Cir. 1995) (adopting same);

Nassau Marine Corp., 778 F.2d at 1116 (stating that the Rule

“generally has been limited, at least in cases not involving

collisions and allisions, to violations of statutes intended to

prevent the injury that actually occurred”); see also 2 Thomas

J. Schoenbaum, Admiralty and Maritime Law § 14-3, at 102

(4th ed. 2004). Because the regulations here were not

intended to protect against the injuries MacDonald suffered,

the Pennsylvania Rule does not apply to Kahikolu, regardless

of the extent of its reach.

[3] First, as the prior panel noted, “the commercial diving

regulations expressly appl[y] only to persons using underwater breathing apparatus and not to free divers.” MacDonald,

442 F.3d at 1203; see 46 C.F.R. §§ 197.202(a) (stating that

regulations apply to commercial diving operations), § 197.204

442 F.3d at 1203. Thus, given the relaxed causation standard under the

Jones Act, liability follows if there was a violation of any statute or regulation that played any part in producing the injury, even the slightest. The

Pennsylvania Rule, by contrast, still retains the requirement that the statute

be intended to protect against the type of injury that in fact occurred.

Additionally, the Pennsylvania Rule does not establish negligence; it concerns itself only with the burden of showing causation. See Mathes, 774

F.2d at 983 (“The only relevant difference between the two theories is that

the per se rule requires the plaintiff to prove causation whereas the Pennsylvania Rule shifts the burden of proof on causation to the defendant.”).

Assuming the Rule applied here, Kahikolu would have the burden of

showing that its violation of the regulation did not play any part in causing

MacDonald’s injury. 

13154 MACDONALD v. KAHIKOLU, LTD.
(defining “commercial diving operation” as activities in support of a “commercial diver” and “diver” as someone “using

underwater breathing apparatus”). So although the regulations

concern an activity similar to free diving, they do not address

free diving itself and are not intended to prevent injuries

incurred while free diving.8

[4] Second, even insofar as a diving manual might possibly

have some bearing on Kahikolu’s free diving operations, it is

not mandatory that the manual contain restrictions or protocol

regarding free diving. This indicates both that the regulations

were not intended to protect against MacDonald’s injuries and

that there is no causal relationship between the lack of a diving manual and MacDonald’s injuries. The regulations require

certain topics to be covered, such as safety procedures and

pre-dive checklists, but these do not require the manual to

address diving without any equipment or equalizing pressure

in one’s ears. See 46 C.F.R. § 197.420(c)-(d). MacDonald

contends that if Kahikolu had adopted a manual, it would

have imposed a depth restriction on free diving. But the regulations do not explicitly require this, and nothing in the substance of the regulations suggests that Kahikolu had a duty to

impose such restrictions or any other diving procedure that

would have prevented MacDonald’s injury. See id.

§§ 197.404, 197.410, 197.420. By contrast, for example, 46

C.F.R. § 197.430 imposes mandatory restrictions on scuba

diving below 130 feet. See id. § 197.430(a). Since the Pennsylvania Rule is intended to enforce strict adherence to safety

regulations and statutes, the Rule applies only when a statute

or regulation actually imposes a mandatory duty. The regulations here do not do so; therefore, the Rule does not apply.

[5] We note finally that even if the Rule does apply, the

8While the regulations were probably designed in part to prevent

barotrauma, their concern was with such injuries as suffered by scuba

divers or others using underwater breathing apparatuses, not with free

divers. 

MACDONALD v. KAHIKOLU, LTD. 13155
district court’s assessment that Kahikolu had met its burden

was not clearly erroneous. Kahikolu established that its

employees had done numerous free dives before to a comparable depth without injury, and Kahikolu’s expert testified

that free diving is not per se unsafe. The district court did not

clearly err in finding this to be clear and convincing evidence

that the failure to have a manual could not reasonably have

contributed to the injury. If Kahikolu had followed its own

experience and its expert’s opinion, it would not have put a

depth restriction on free dives. See Pacific Tow Boat Co. v.

States Marine Corp., 276 F.2d 745, 749 (9th Cir. 1960) (stating that the Rule “do[es] not require the vessel guilty of a statutory fault to prove that its fault could not by any stretch of

the imagination have had any causal relation to the collision

no matter how speculative, improbable, or remote”). MacDonald’s expert testified to the contrary, but even if the Pennsylvania Rule had shifted the burden of proof to Kahikolu,

this shift would not have required the district court to find for

MacDonald simply because the experts had contradictory

opinions; the Rule requires only that Kahikolu present clear

and convincing evidence sufficient to carry its burden of persuasion. There is no indication that the district court clearly

erred in crediting Kahikolu’s expert over MacDonald’s, especially given their relative levels of experience with free diving.

[6] The prior panel remanded this case “for the limited purpose of having the district court make a finding as to whether

Kahikolu’s failure to provide an operations manual to the

person-in-charge of the Frogman II vessel . . . played any part

in producing the injury, no matter how slight, to Mr. MacDonald.” MacDonald, 442 F.3d at 1200. Although it did not

expressly mention the Pennsylvania Rule, the court did not

require the district court to apply the Rule, and for good reason: regardless of the kinds of claims to which the Rule might

apply, it does not apply here. The district court correctly followed our instructions on remand; the judgment below is

13156 MACDONALD v. KAHIKOLU, LTD.
AFFIRMED.

MACDONALD v. KAHIKOLU, LTD. 13157