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KUNTZ v. WINDJAMMER "BAREFOOT" CRUISES

August 16, 1983

RUSSELL KUNTZ, Administrator of the Estate of CHRISTINE ANN KUNTZ, Deceased, Plaintiff,
v.
WINDJAMMER "BAREFOOT" CRUISES, LTD., a corporation, and ABAGADOS PANAMANEOS INCORPORADOS, a corporation, and ENGLISH HARBOR YACHTS, LTD., a corporation and, FANTOME, LTD., a corporation, and TOM MILLER, Defendants



The opinion of the court was delivered by: ZIEGLER

 Ziegler, District Judge

 I. History of Case

 (1) This is a civil action for money damages filed by Russell Kuntz, as Administrator of the Estate of Christine Ann Kuntz, against Windjammer "Barefoot" Cruises, Ltd., and English Harbor Yachts, Ltd. The action was instituted in the Court of Common Pleas of Allegheny County, Pennsylvania, on March 14, 1979, and removed to this court pursuant to 28 U.S.C. § 1441 by defendant Windjammer Cruises on April 23, 1979.

 (2) Russell Kuntz is a citizen of the Commonwealth of Pennsylvania. Windjammer Cruises, Ltd. is a corporation organized and existing under the laws of the British Virgin Islands. Windjammer is registered to do business in the State of Florida. Defendant English Harbor Yachts, Ltd. is a corporation organized and existing under the laws of the British Virgin Islands. The amount involved exceeds the sum of $10,000. Jurisdiction of this court is premised on diversity of citizenship, 28 U.S.C. § 1332, and in admiralty, based on 46 U.S.C. § 761, which is the Death on the High Seas Act.

 (3) The original complaint sought money damages for the alleged wrongful and negligent acts of Windjammer Cruises, Ltd. and Tom Miller, its alleged employee, based on the Wrongful Death and Survival Acts of the Commonwealth of Pennsylvania, 42 Pa.C.S.A. §§ 8301 and 8302. The complaint also contained a claim against a third defendant, Abagados Panamaneos Incorporados, but that claim has not been pursued, will be dismissed by the court, and is not relevant to these findings.

 (4) On May 9, 1979, the administrator filed an amended complaint in this court seeking money damages against the defendants of record, at that time, based on the Death on the High Seas by Wrongful Act statute, 46 U.S.C. § 761, hereafter referred to as DOHSA.

 (5) Windjammer Cruises then filed a motion to dismiss the original and amended complaints, alleging want of personal jurisdiction, forum non conveniens, and pre-emption by DOHSA. The parties initiated discovery concerning the jurisdiction questions, and, on August 24, 1979, this court denied the motion by holding that jurisdiction is extant under DOHSA, and further that this court had personal jurisdiction by virtue of Windjammer's aggregate, substantial, and continuous business contacts with the United States and this forum.

 (6) On December 15, 1980, plaintiff filed a motion to add English Harbor Yachts, Ltd., and Fantome, Ltd., as defendants. The motion was granted the next day. The amended complaint which followed posited jurisdiction based upon diversity of citizenship and DOHSA. The amended complaint contained damage claims under DOHSA and the Pennsylvania Wrongful Death and Survival Acts. Windjammer Cruises responded with a motion to dismiss the money damage claim, grounded on the state statutes, due to the alleged pre-emption by DOHSA with respect to the damages. The added defendants also moved to dismiss, asserting that the claim was time-barred, because the complaint was not filed as to them until February 18, 1981, whereas DOHSA required that an action be instituted within two years of the operative event at that time.

 (7) In a memorandum dated November 6, 1981, this court held that plaintiff's claim, based on DOHSA, was untimely as to English Harbor Yachts, Ltd., and Fantome, Ltd., but timely as to them under the Fatal Accidents Act of the Bahamas, as provided by 46 U.S.C. § 764.

 (8) On May 12, 1980, defendant Tom Miller moved to dismiss, alleging want of personal jurisdiction. Following discovery relative to this issue, we ordered that the action against Miller be transferred to the United States District Court for the Southern District of Texas, pursuant to 28 U.S.C. § 1404(a). The date of that order was October 12, 1982. The memorandum explaining this court's reasoning is dated September 27, 1982, and filed of record.

 (9) The case then proceeded to a bench trial against defendants Windjammer "Barefoot" Cruises, Ltd., and English Harbor Yachts, Ltd. Plaintiff's claims against Abagados Panamaneos Incorporados and Fantome, Ltd., are no longer being pursued and this court will enter an order dismissing those parties from the case. Plaintiff's claim for damages against English Harbor Yachts, Ltd., is grounded on the Fatal Accidents Act of the Bahamas. The foregoing findings rehearse the procedural posture of this case in order to facilitate appellate review, if any. We turn now to the questions of subject matter jurisdiction and choice of law.

 II. Jurisdiction and Choice of Law

 (10) The first question we must resolve is whether we have subject matter jurisdiction in admiralty, pursuant to 28 U.S.C. § 1333, since this is a civil action arising out of a scuba diving accident. We hold that subject matter jurisdiction is extant in accordance with the teachings of Foremost Insurance Company v. Richardson, 457 U.S. 668, 102 S. Ct. 2654, 73 L. Ed. 2d 300, 50 U.S.L.W. 4778 (1982). There the Supreme Court held that the federal interest in protecting maritime commerce can be vindicated only if all operators of vessels on navigable waters, whether commercial or otherwise, are subject to uniform rules. Here, we have a commercial vessel in navigable waters, providing a maritime service to passengers for a fee, with the service promoted, conducted, and supervised by a member of the crew. In addition, as Justice Stewart points out in Executive Jet Aviation v. City of Cleveland, an aviation case, the Death on the High Seas Act provides a basis for our jurisdiction, so long as there is a nexus with traditional maritime activity and, as here, a vessel on the high seas is involved. 409 U.S. 249, 93 S. Ct. 493, 34 L. Ed. 2d 454 (1972). We hold that subject matter jurisdiction in admiralty is present. See Benedict On Admiralty, Volume 2, Section 2, pages 1 through 16.

 (11) The next question we must resolve concerns the substantive law which applies to this case, because the original jurisdiction of this court is based on diversity of citizenship, 28 U.S.C. § 1332, and federal question jurisdiction, predicated on DOHSA, 46 U.S.C. § 761. In the former, the substantive law of Pennsylvania is controlling. In the latter, federal admiralty law is controlling. We hold that federal admiralty law controls the substantive law of this case, because the accident occurred on the high seas and more than one marine league beyond the United States and its territories. In our judgment and we find, Congress sought uniformity when it enacted DOHSA, rather than the possibility of disparate and inconsistent results that could follow a death on the high seas, if the federal district courts were required to apply the substantive law of the various states. In short, DOHSA and federal maritime law pre-empts the substantive law of Pennsylvania and, therefore, is controlling.

 (12) We also find that the substantive maritime laws of the United States, including DOHSA, control the outcome in this case, despite the fact that the accident occurred on the seas near the Bahamas. Windjammer does not contend otherwise. Indeed, Windjammer urged this choice of law from the outset, and the case has been tried by the parties on that basis. In Chirinos de Alvarez v. Creole Petroleum Corporation, 613 F.2d 1240 (3d Cir. 1980), the Court of Appeals articulated the factors to be considered in ascertaining whether the laws of the United States should apply to accidents without the United States. Although that case dealt with an injury to a seaman in a foreign country, the rationale is applicable to this case. In the instant case, the plaintiff and the deceased are United States citizens. The contract for the voyage was executed in the United States. The defendants do substantial business in the United States and Pennsylvania. Indeed, Windjammer advertises extensively in Pennsylvania newspapers and national publications throughout this nation. All witnesses in this case are citizens of the United States. Windjammer is registered to do business in the state of Florida and does business in other states and maintains an office in Miami and pays taxes to the state of Florida. The only contrary factors are that the accident occurred in the Bahamas, and defendants are foreign corporations. However, in our judgment, these factors do not prevent the application of the laws of the United States, pursuant to the teachings of Creole Petroleum Corporation. In short, we find that federal substantive law controls the claim against Windjammer and English Harbor Yachts and that Windjammer has urged this court to so hold from the outset. Windjammer's urgings are consistent with the law in the Third Circuit.

 III. Facts

 (13) Christine Ann Kuntz was born on September 30, 1957, and died on April 14, 1978, while scuba diving off Little Stirrup Bay, Berry Islands, Bahamas. The cause of death was drowning. Prior to her death, Miss Kuntz was a passenger on the vessel Fantome, which is owned and operated by defendants.

 (14) Christine Kuntz read an advertisement in Cosmopolitan Magazine in October, 1977. See Plaintiff's Exhibit 11A. Thereafter, she attended a film at the Marriott Hotel in Pittsburgh which was presented to attract customers to Windjammer's "Barefoot" Cruises. See Exhibits 9 and 10. Plaintiff's Exhibit No. 2 is an invoice from Windjammer Cruises, through its representative at Northway Mall, Pittsburgh, indicating that payment had been made by decedent and two others for a cruise from April 10 through April 16, 1978. The decedent flew to Miami, Florida, and then to Freeport, Bahamas, where she boarded the Fantome.

 (15) Christine Kuntz was capable of swimming, but had no prior experience as a scuba diver. She paid a fee and agreed to receive scuba diving instructions under the direction of Tom Miller. Miller was a certified scuba diver and instructor and, as defendants have stipulated, he was their agent, servant, and employee at the time of the accident.

 (16) The decedent enrolled in the resort course, which is a program devised by the National Association of Underwater Instruction. The resort course is designed to introduce the novice to the rudiments of scuba diving. The minimum standards pertaining to the course are set forth in Plaintiff's Exhibit Nos. 18 and 19, and we find that the standards were in effect and applicable to the instant cause of action. Tom Miller was a member of the Association at the time of the accident.

 (17) The decedent attended a lecture and participated in a shallow water dive, under the supervision and direction of Tom Miller, prior to her death. On April 14, 1978, she participated in an open water, deep dive, under the direction of defendants' employee, Mr. Miller.

 (18) We find that Christine Kuntz's death was caused by the "wrongful act, neglect, or default" of defendants, which occurred on the high seas and beyond one marine league from the shore of any state, territory, or dependency of the United States, as defined in 46 U.S.C. § 761.

 (19) We find that plaintiff has established by a preponderance of the evidence that the open water dive on April 14, 1978, was negligently conducted, wrongfully supervised, and deficiently handled by Tom Miller, in the following particulars:

 A. In failing to institute and maintain a buddy or partner type system when the four inexperienced students entered the open water off the reef adjacent to Little Stirrup Bay;

 B. In failing to institute a partner system and in failing to assign a partner or buddy to the decedent;

 C. In failing to direct and supervise the activities of the class during the deep dive;

 D. In failing to remain present and supervise the decedent after she encountered difficulty with her mask and in equalizing during the dive;

 E. In engaging in spear fishing and leaving the area of the students, when Tom Miller knew or should have known that Christine Kuntz was a problem student and having difficulty;

 F. In failing to instruct Christine Kuntz to leave the reef and in failing to guide the decedent to shallow water, once Mr. Miller knew or should have known that she was encountering difficulty with her mask and equalizing during the dive;

 G. In failing to insure that the students, including Miss Kuntz, remained in the immediate area of Tom Miller at all times;

 H. In failing to give close, direct, personal attention to the class, and the decedent in particular;

 I. In failing to establish a surface support station for the open water dive; and

 J. In failing to give close, direct, personal attention to the decedent, when she encountered difficulty, and in failing to institute and maintain a buddy or partner system, when Miss ...


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