William Ehart, Jr. v. Lahaina Divers, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

WILLIAM MCMEIN EHART, Jr., No. 22-16149
Individually and as Personal
Representative of the Estate of D.C. No.
Maureen Anne Ehart, Deceased, 1:21-cv-00475-
SOM-KJM
Plaintiff-Appellee,
v.
OPINION
LAHAINA DIVERS, INC.; CORY
DAM,

Defendants-Appellants,

and

KAITLIN MILLER; JULIANNE
CRICCHIO; LAHAINA DIVE &
SURF LLC,

Defendants.

Appeal from the United States District Court
for the District of Hawaii
Susan O. Mollway, District Judge, Presiding

Argued and Submitted February 17, 2023
Honolulu, Hawaii
2 EHART, JR. V. LAHAINA DIVERS, INC.

Filed February 8, 2024

Before: Carlos T. Bea, Daniel P. Collins, and Kenneth K.
Lee, Circuit Judges.

Opinion by Judge Bea;
Dissent by Judge Collins

SUMMARY *

Admiralty Law

The panel reversed the district court’s order granting
plaintiff’s motion to strike an affirmative defense of waiver
or release and remanded for further proceedings in a
wrongful death admiralty action.
Plaintiff’s claims arose from his wife’s death during a
scuba and snorkeling tour from Lahaina Harbor to Molokini
Crater, an atoll off the coast of Maui. Before the tour,
plaintiff and his wife each signed a waiver document
releasing rights to sue defendants. Defendants asserted
waiver and release as an affirmative defense to claims based
on simple negligence. The district court struck the defense
on the basis that the liability waivers were void under 46
U.S.C. § 30527(a), which prohibits certain liability waivers
regarding “vessel[s] transporting passengers between ports

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 EHART, JR. V. LAHAINA DIVERS, INC. 3

in the United States, or between a port in the United States
and a port in a foreign country.”
Citing Wallis v. Princess Cruises, Inc., 306 F.3d 827 (9th
Cir. 2002) (finding jurisdiction to review the district court’s
grant of partial summary judgment limiting the defendant’s
liability in accordance with a clause on the back of a cruise
ship ticket), the panel held that it had jurisdiction to review
the district court’s interlocutory order under 28 U.S.C.
§ 1292(a)(3) because the order determined the rights and
liabilities of parties in an admiralty case.
On the merits, the panel held that, under the plain
meaning of “between ports in the United States,” § 30527(a)
does not apply to liability waivers as to vessels that transport
passengers away from and back to a single port without
stopping at any other port.
Dissenting, Judge Collins wrote that he would dismiss
the appeal for lack of jurisdiction because the majority
greatly expanded the court’s already overbroad construction
of 28 U.S.C. § 1292(a)(3). He would hold that Wallis is
distinguishable because there, the district court imposed an
across-the-board limitation on the defendants’
liability. Judge Collins also disagreed with the majority’s
interpretation of 46 U.S.C. § 30527(a).

COUNSEL

Ralph J. O'Neill (argued), Jamie C.S. Madriaga, and
Matthew A. Hemme, MacDonald Rudy O’Neill &
Yamauchi LLP, Honolulu, Hawaii, for Defendants-
Appellants.
4 EHART, JR. V. LAHAINA DIVERS, INC.

John R. Hillsman (argued), McGuinn Hillsman & Palefsky,
San Francisco, California, for Plaintiff-Appellee.
Mark M. Williams, Law Office of Mark M. Williams,
Pasadena, California, for Amicus Curiae Daniel W. Bader,
dba Sea Landing Dive Center.
Brian O. Felder, Wilson Elser Moskowitz Edelman & Dicker
LLP, Los Angeles, California, for Amicus Curiae Marine
Recreation Association.
Charles D. Naylor, Law Offices of Charles D. Naylor, Long
Beach, California; Michael F. Sturley, University of Texas
Law School, Austin, Texas; Michael A. Kelly, Richard H.
Schoenberger, Matthew D. Davis, Spencer J. Pahlke, and
Joseph Nicholson, Walkup Melodia Kelly & Schoenberger
PC, San Francisco, California; Gretchen M. Nelson and
Carlos F. Llinas Negret, Nelson & Fraenkel LLP, Los
Angeles, California; Douglas T. Moore, The Law Offices of
Douglas Thomas Moore LLC, Honolulu, Hawaii; Preston
Easley, Law Offices of Preston Easley APC, San Pedro,
California; Joseph S. Stacey, James P. Jacobsen, and Nigel
T. Stacey, Stacey & Jacobsen LLP, Seattle, Washington;
Lyle C. Cavin, Jr., Law Offices of Lyle C. Cavin, Jr. &
Associates, Oakland, California; Daniel C. Dziuba, Tichenor
Dziuba Law Office, Portland, Oregon; Kurt Micklow and
Edward M. Bull, III, Brodsky Micklow Bull & Weiss LLP,
Oakland, California; Joel Krissman, Krissman & Silver
LLP, Long Beach, California; for Amici Curiae Injured
Vessel Passengers and Surviving Family Members and
Personal Representatives of Fatally Injured Vessel
Passengers.
 EHART, JR. V. LAHAINA DIVERS, INC. 5

OPINION

BEA, Circuit Judge:

The question in this case is whether 46 U.S.C.
§ 30527(a), 1 which prohibits certain liability waivers
regarding “vessel[s] transporting passengers between ports
in the United States, or between a port in the United States
and a port in a foreign country,” applies when a vessel
transports passengers away from and back to a single port in
the United States without stopping at any other port. We hold
that it does not. The plain meaning of “between ports in the
United States” is between at least two separate ports in the
United States, and § 30527(a) therefore does not apply to
liability waivers as to vessels that transport passengers away
from and back to a single port without stopping at any other
port.
I. BACKGROUND 2
On September 14, 2021, Maureen Anne Ehart and her
husband, William McMein Ehart, Jr., went on a chartered
scuba and snorkeling tour to Molokini Crater. Molokini
Crater is a crescent-shaped volcanic atoll located about 2.5
miles off the south coast of Maui, Hawaii. The Eharts
boarded the Dauntless—a boat owned by Lahaina Divers,

1
At the time of the relevant events and the time this case was filed, this
statute was codified as 46 U.S.C. § 30509. As of December 23, 2022, the
statute has moved to 46 U.S.C. § 30527. This opinion uses the updated
citation. Other than the citation, the statute has not changed.
2
Except where otherwise indicated, these facts are taken from the
pleadings and are accepted as true. See Hoeft v. Tucson Unified Sch.
Dist., 967 F.2d 1298, 1301 n.2 (9th Cir. 1992); Sidney-Vinstein v. A.H.
Robins Co., 697 F.2d 880, 885 (9th Cir. 1983).
6 EHART, JR. V. LAHAINA DIVERS, INC.

Inc.—at Lahaina Harbor and traveled on the boat to
Molokini Crater along with 14 other paying passengers and
a three-person crew. The crew included the master of the
Dauntless, Cory Dam, and two scuba instructors, Kaitlin
Miller and Julianne Cricchio.
Prior to the excursion, the Eharts had each signed a
separate waiver document, which stated: “THIS IS A
RELEASE OF YOUR RIGHTS TO SUE LAHAINA DIVE
& SURF, LLC, AND/OR LAHA[I]NA DIVERS INC.
(LDS/LDI), AND ITS OWNERS, EMPLOYEES, AGENTS
AND ASSIGNS FOR PERSONAL INJURIES OR
WRONGFUL DEATH THAT MAY [OCCUR] DURING
THE FORTHCOMING DIVE ACTIVITY AS A RESULT
OF THE INHER[ENT ]RISKS ASSOCIATED WITH
SCUBA DIVING AND/OR SNORKE[LI]NG OR AS A
RESULT OF NEGLIGENCE.” The waiver then instructed
participants to check boxes. Maureen Ehart checked the
following boxes (William Ehart checked all of the boxes):
EHART, JR. V. LAHAINA DIVERS, INC. 7
8 EHART, JR. V. LAHAINA DIVERS, INC.

Below the questionnaire, the Eharts each again signed
the waiver. 3
The Dauntless traveled across the water from Lahaina
Harbor to Molokini Crater, where it tied up to a mooring
buoy. At Molokini Crater, the scuba instructors (Miller and
Cricchio) escorted two groups of divers on separate scuba
tours. Instead of joining the scuba tour members, Maureen
Ehart and two other passengers snorkeled separately from
the scuba tours in the waters of the Crater. Dam remained on
the Dauntless to maintain an anchor watch, serve as a
lookout, monitor the weather, supervise the passengers’
snorkeling activities, and act as a lifeguard, among other
duties.
The winds, waves, and currents inside the Crater
increased, and the two other snorkelers who had gone with
Maureen returned to the Dauntless, while Maureen stayed in
the water. Dam, preoccupied by other duties, “lost track of
[Maureen] and permitted her to drift away unsupervised and
unseen.” When Dam realized he had lost sight of Maureen,
he did not recall the scuba tour members, call the Coast
Guard, or conduct an immediate search; instead, he waited
for both scuba tours to return to the boat and then ordered
Miller and Cricchio to search for Maureen. This search,
which lasted approximately 30 minutes, was “poorly
planned, improperly equipped, and ultimately
unsuccessful.” Dam eventually called for assistance from the
Coast Guard and local authorities. The Coast Guard and

3
The waiver language and questionnaire are taken from an exhibition
attached to the Plaintiff’s concise statement of facts in support of the
motion to strike. The parties do not dispute the accuracy of the waiver
language or questionnaire.
 EHART, JR. V. LAHAINA DIVERS, INC. 9

Maui County Emergency Services searched for Maureen for
three days, but she was never found.
Plaintiff filed an action under admiralty jurisdiction in
the District of Hawaii asserting six causes of action against
Lahaina Divers and Dam (“Defendants”) 4: (1) a wrongful
death claim based on gross negligence; (2) a wrongful death
claim based on simple negligence; (3) a survival claim based
on gross negligence; (4) a survival claim based on simple
negligence; (5) a reckless infliction of emotional distress
claim; and (6) a negligent infliction of emotional distress
claim.
In their Answer to the Complaint, Defendants asserted
waiver and release as an affirmative defense. 5 Plaintiff
moved to strike the defense, arguing that the liability waiver
signed by the Eharts was void under 46 U.S.C. § 30527(a)
and Hawaii Revised Statute (“HRS”) § 663–1.54.
Defendants opposed the motion on the grounds that (1) 46
U.S.C. § 30527(a) does not apply here because the Dauntless
was not “transporting passengers between ports in the United
States, or between a port in the United States and a port in a

4
Plaintiff also brought the following claims against Miller and Cricchio:
(1) a wrongful death claim based on simple negligence; (2) a survival
claim based on simple negligence; and (3) a negligent infliction of
emotional distress claim. However, Miller and Cricchio did not raise the
affirmative defense of waiver and release and are not parties to the
present appeal.
5
In their Answer to the Complaint, Defendants appeared to raise the
affirmative defense of waiver and release against all six causes of action
(including those based on gross negligence). But in their Opening Brief
on appeal, Defendants appeared to acknowledge that the waiver
pertained only to simple negligence, not gross negligence.
10 EHART, JR. V. LAHAINA DIVERS, INC.

foreign country”; and (2) federal admiralty law precludes
application of the Hawaii state statute in this case.
The district court granted Plaintiff’s motion to strike the
affirmative defense on the basis that the liability waivers
signed by the Eharts were void under § 30527(a). In its
decision granting the motion to strike, the district court held
that 46 U.S.C. § 30527(a) applies to the Dauntless because
the Dauntless was conveying passengers from Lahaina
Harbor to Molokini Crater and back. The district court did
not make a determination as to whether Molokini Crater is a
“port.” Instead, it reasoned that § 30527(a) applies “not only
to the transportation of passengers between Port A and a
different port but also to the transportation of passengers
from Port A . . . on an excursion that returns to Port A even
if there is no intervening different port.” Because the
Dauntless transported passengers away from and back to
Lahaina Harbor—which the parties do not dispute is a
“port”—the district court concluded that § 30527(a) applies
to the Dauntless and renders the liability waivers void. The
district court then explained that the Hawaii statute does not
provide an alternate basis to strike the affirmative defense
because there remains a question of fact as to whether the
liability waiver was inapplicable under the Hawaii statute. 6
Defendants sought reconsideration of the district court’s
order to strike the affirmative defense or, in the alternative,

6
The Hawaii statute provides that liability waivers regarding recreational
activities will not be valid unless the owner or operator of the activity:
(1) provides full disclosure of the inherent risks of the activity; and (2)
takes reasonable steps to ensure that the patron is physically able to
participate in the activity and is given the necessary instructions to
participate safely. Haw. Rev. Stat. § 663–1.54. The district court held
that there was a question of fact as to whether each of these conditions
was satisfied.
 EHART, JR. V. LAHAINA DIVERS, INC. 11

to have the court certify an interlocutory appeal with respect
to the striking of that defense. The district court denied the
motion and declined to certify the interlocutory appeal.
Defendants then filed this interlocutory appeal.
II. STANDARD OF REVIEW
We review questions of statutory interpretation de novo.
United States v. Doe, 136 F.3d 631, 634 (9th Cir. 1998). We
review a district court’s ruling on a motion to strike for abuse
of discretion. El Pollo Loco, Inc. v. Hashim, 316 F.3d 1032,
1038 (9th Cir. 2003). We review de novo a district court’s
holding as to whether an affirmative defense is applicable as
a matter of law. In re Hanford Nuclear Rsrv. Litig., 534 F.3d
986, 1000 (9th Cir. 2008).
III. JURISDICTION
The district court declined to certify an interlocutory
appeal under 28 U.S.C. § 1292(b). 7 However, this court has
jurisdiction over the interlocutory appeal under 28 U.S.C.
§ 1292(a)(3). Under 28 U.S.C. § 1292(a)(3), a court of
appeals has jurisdiction over “[i]nterlocutory decrees
of . . . district courts . . . determining the rights and liabilities
of the parties to the admiralty cases in which appeals from
final decrees are allowed.” This court has previously
exercised jurisdiction under § 1292(a)(3) in interlocutory
appeals to review the enforceability of an affirmative
defense based on the existence of a maritime contract
limiting liability. See Wallis v. Princess Cruises, Inc., 306
F.3d 827, 832–34 (9th Cir. 2002) (finding jurisdiction to

7
“Section 1292(b) provides a mechanism by which litigants can bring
an immediate appeal of a non-final order upon the consent of both the
district court and the court of appeals.” In re Cement Antitrust Litig.
(MDL No. 296), 673 F.2d 1020, 1025–26 (9th Cir. 1981).
12 EHART, JR. V. LAHAINA DIVERS, INC.

review the district court’s grant of partial summary judgment
limiting the defendant’s liability in accordance with a clause
on the back of a cruise ship ticket); Vision Air Flight Serv.,
Inc. v. M/V Nat’l Pride, 155 F.3d 1165, 1168 (9th Cir. 1998)
(finding jurisdiction to review the district court’s grant of
partial summary judgment limiting the defendant’s liability
pursuant to the Carriage of Goods at Sea Act); Carman Tool
& Abrasives, Inc. v. Evergreen Lines, 871 F.2d 897, 899 (9th
Cir. 1989) (same). Because this court “ha[s] jurisdiction over
an interlocutory appeal under § 1292(a)(3) where, as here,
only the validity and applicability of a provision limiting
liability has been determined,” this court has jurisdiction
over the present interlocutory appeal. 8 Wallis, 306 F.3d at
834.

8
The dissent characterizes our exercise of jurisdiction in this case as an
expansion of Wallis. To distinguish Wallis from this case, the dissent
emphasizes that the liability waiver at issue here does not cover
Plaintiff’s gross negligence claims, whereas the liability waiver in Wallis
pertained to the plaintiff’s only claim that survived the defendants’
motion for summary judgment, the plaintiff’s Death on the High Seas
Act (“DOSHA”) claim. But we do not see a meaningful difference
between this case and Wallis. In Wallis, this court exercised appellate
jurisdiction under § 1292(a)(3) where the district court had “only
decided that, if Princess [the defendant] were liable, its liability would
be limited pursuant to the contract” at issue. Wallis, 306 F.3d at 833. The
dissent argues this limitation was an “across-the-board” cap. See Diss.
Op. at 34. But surely the panel in Wallis, which was decided in 2002, did
not think such a provision could be an absolute, across-the-board limit
on liability, when this Circuit had recently held that “a party to a
maritime contract should not be permitted to shield itself contractually
from liability for gross negligence.” See Royal Ins. Co. v. Sw. Marine,
194 F.3d 1009, 1016 (9th Cir. 1999). On appeal, the effect of the Wallis
panel’s exercise of jurisdiction to review a contractual liability limitation
was to determine “what [the plaintiff would] have to prove to recover”
beyond the contract’s liability limitation. See Diss. Op. at 35 (emphasis
 EHART, JR. V. LAHAINA DIVERS, INC. 13

IV. 46 U.S.C. § 30527
46 U.S.C. § 30527(a) is a section of the Shipowner’s
Limitation of Liability Act (“the Act”) that prohibits certain
contractual provisions limiting liability for personal injury
or death. Section 30527(a) provides:

(a) Prohibition.--
(1) In general.--The owner, master,
manager, or agent of a vessel
transporting passengers between ports in
the United States, or between a port in the
United States and a port in a foreign
country, may not include in a regulation
or contract a provision limiting--
(A) the liability of the owner, master,
or agent for personal injury or death
caused by the negligence or fault of
the owner or the owner’s employees
or agents; or
(B) the right of a claimant for
personal injury or death to a trial by
court of competent jurisdiction.

removed). The same is true here: if the liability waiver applies, then
Plaintiff would need to prove that Defendants were grossly negligent to
recover; if the liability waiver is prohibited by statute, then Plaintiff need
only prove that Defendants were negligent. The dissent agrees that “we
reaffirmed in Wallis that an order determining ‘the validity and
applicability of a provision limiting liability’ counts as a ‘decree[] . . .
determining the rights and liabilities of the parties’ within the meaning
of § 1292(a)(3).” Diss. Op. at 31 (alterations and emphasis in original)
(citing Wallis, 306 F.3d at 834). That is what the district court’s order
determined in this case. We see no meaningful distinction between the
posture of this case and Wallis. Hence, we are bound by Wallis and have
appellate jurisdiction.
14 EHART, JR. V. LAHAINA DIVERS, INC.

(2) Voidness.--A provision described in
paragraph (1) is void.

46 U.S.C. § 30527(a) (emphasis added). The question before
us is whether § 30527(a) applies where a vessel departs from
and returns to a single port in the United States without
stopping at any other port. We hold that the language
“between ports in the United States” requires transport
between at least two ports in the United States.
A statute’s language is the starting point for its
interpretation. Dyer v. United States, 832 F.2d 1062, 1066
(9th Cir. 1987). “When a statute does not define a term, we
typically ‘give the phrase its ordinary meaning.’” FCC v.
AT&T Inc., 562 U.S. 397, 403 (2011) (quoting Johnson v.
United States, 559 U.S. 133, 138 (2010)). “To determine the
‘plain meaning’ of a term undefined by a statute, resort to a
dictionary is permissible.” San Jose Christian Coll. v. City
of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004). 46
U.S.C. § 30527 does not define the term “transporting
passengers between ports,” nor is it a term of art with a
particular legal definition, see Williams v. King, 875 F.3d
500, 503 (9th Cir. 2017), so we apply the term’s plain
meaning.
The plain meaning of the term “transporting passengers
between ports” is transporting passengers from one port to
another port (Port A to Port B), not transporting passengers
away from and back to a single port (Port A to Port A). This
meaning stems from the combination of the word “between”
and the plural form of “ports.” The use of the plural “ports”
is not determinative on its own because “[i]n determining the
meaning of any Act of Congress, unless the context indicates
otherwise-- . . . words importing the plural include the
singular.” 1 U.S.C. § 1 (emphasis added). But here, the word
 EHART, JR. V. LAHAINA DIVERS, INC. 15

“between” suggests that the plural “ports” does not include
the singular “port.” See Witkowski v. Niagara Jet
Adventures, LLC, 2020 WL 486876, at *4 n.4 (W.D.N.Y.
Jan. 30, 2020) (reasoning that, in § 30527, “the word
‘between’ . . . necessarily provides context that the plural
cannot include the singular.”). Further, the use of the word
“ports” when referring to ports in the United States and
“port” when referring to a port in the United States and a port
in a foreign country in the same sentence of the Act imports
the meaning that “ports” is not used to denote the singular
under 1 U.S.C. § 1. See ANTONIN SCALIA & BRYAN A.
GARNER, Presumption of Consistent Usage, in READING
LAW: THE INTERPRETATION OF LEGAL TEXTS 170 (2012).
In holding otherwise, the district court relied on three
dictionary definitions of the word “between”: (1) “[i]n or
through the position or interval separating”; 9 (2)
[c]onnecting spatially”; 10 and (3) “in the time, space, or
interval that separates.” 11 The district court appears to have
handpicked these definitions from the eight definitions of
“between” in the American Heritage Dictionary and the
eleven definitions in the Merriam-Webster Dictionary

9
E.g., “between the trees” or “between 11 o’clock and 12 o’clock.”
Between, THE AMERICAN HERITAGE DICTIONARY,
https://www.ahdictionary.com/word/search.html?q=between
[https://perma.cc/45AZ-WV7D]. Notice: there is more than one tree or
one hour.
10
E.g., “a railroad between the two cities.” Between, THE AMERICAN
HERITAGE DICTIONARY. Notice: there are two cities.
11
E.g., “the alley between the butcher shop and the pharmacy” or “should
arrive between 9 and 10 o’clock.” Between, MERRIAM-WEBSTER
DICTIONARY, https://www.merriam-webster.com/dictionary/between
[https://perma.cc/8HJL-9KDG] (emphasis in original). Notice: there are
two shops and two times.
16 EHART, JR. V. LAHAINA DIVERS, INC.

without explanation. But even these definitions, and their
corresponding examples, nonetheless support a holding that
the phrase “between ports” refers to multiple ports. Each of
these definitions involves a relationship between one thing
and something else. Put more simply, the word “between”
implies more than one.
Of the eleven definitions of “between” found in the
Merriam-Webster Dictionary, the definition that best fits the
context of § 30527(a) is “from one to another of,” 12 for
example, “air service between Miami and Chicago.”
Between, MERRIAM-WEBSTER DICTIONARY,
https://www.merriam-webster.com/dictionary/between
[https://perma.cc/8HJL-9KDG] (emphasis in original). This
definition demonstrates that, in the transportation context,
the word “between” necessarily implies at least two
locations. See ANTONIN SCALIA & BRYAN A. GARNER,
Ordinary-Meaning Canon, in READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 70 (2012) (“Most
common English words have a number of dictionary
definitions . . . . One should assume the contextually
appropriate ordinary meaning unless there is reason to think
otherwise.”).
The district court attempted to avoid this conclusion by
reasoning that “[h]ad Congress intended to require different
ports when it used the word ‘ports,’ it could have easily

12
The other definitions are as follows: (1) “by the common action of :
jointly engaging”; (2) “in common to : shared by”; (3) “in the time, space
or interval that separates”; (4) “in intermediate relation to”; (5) “serving
to connect or unite in a relationship (such as difference, likeness, or
proportion)”; (6) “setting apart”; (7) “in preference for one or the other
of”; (8) “in point of comparison of”; (9) “in confidence restricted to”;
and (10) “taking together the combined effect of.” Between, MERRIAM-
WEBSTER DICTIONARY.
 EHART, JR. V. LAHAINA DIVERS, INC. 17

indicated that by using the phrase ‘between different ports.’”
This argument fails because, as discussed, the word
“between” indicates that Congress intended to reference
multiple ports. Multiple ports are, by definition, different
one from the other; adding “different” would be tautological.
See ANTONIN SCALIA & BRYAN A. GARNER, Surplusage
Canon, in READING LAW: THE INTERPRETATION OF LEGAL
TEXTS 174 (2012) (“[No word] should needlessly be given
an interpretation that causes it to duplicate another provision
or to have no consequence.”).
The district court next attempted to skirt the plain
meaning of the phrase “between ports” by reasoning that
limiting the statute’s application to vessels transporting
passengers between different ports would result in “absurd
results.” The district court reasoned:

[A]pplying “ports” only when journeys are
between Port A and Port B leads to odd and
absurd results. For example, a vessel may
take passengers a few hundred yards from
one side of a river to the other (Port A to Port
B). Waivers of negligence for the short
journey between Port A and Port B would be
prohibited by § 305[27], as the journey
would involve transportation of passengers
“between ports of the United States.”
However, if the same vessel left Port A for a
10-hour sightseeing tour and then returned to
the same port (Port A), then, under
Defendants’ argument, waivers of negligence
for such a journey would not be prohibited by
§ 305[27]. It makes little sense to think that
Congress intended to prohibit a waiver only
18 EHART, JR. V. LAHAINA DIVERS, INC.

for the first (very brief) journey. Both involve
the transportation of passengers between
ports. In the latter example, the vessel is
conveying the passengers from one port out
for a boat tour and then back to the same port,
with the tour being the interval between
embarkation and disembarkation at the same
port.

We reject this reasoning for two reasons. First, both
examples do not “involve the transportation of passengers
between ports.” The vessel that departs from Port A and
returns to Port A might involve the transportation between a
port and the water, but it does not involve the transportation
of passengers between ports (plural). Second, nothing in the
text of the statute indicates that its applicability is tied to the
length of the journey, but the phrase “between ports” does
indicate that the statute’s applicability is dependent on the
transportation of passengers between different ports. 13

13
The district court also cited the General Slocum disaster as a reason to
believe that Congress intended that § 30527(a) apply to vessels that
depart from and return to the same port. The General Slocum was a
steamship that caught fire in New York Harbor in 1904, resulting in the
death of 957 of its 1,388 passengers and crew members. LAWRENCE O.
MURRAY ET AL., U.S. DEP’T COM. & LAB., REPORT OF THE UNITED
STATES COMMISSION OF THE INVESTIGATION UPON THE DISASTER TO THE
STEAMER “GENERAL SLOCUM” 25 (1904). The district court observed
that the General Slocum disaster was discussed during testimony before
Congress during the hearings regarding the predecessor to 46 U.S.C.
§ 30527. The district court reasoned that the General Slocum was
chartered to take passengers from the harbor to a picnic area and back to
the harbor, and “[t]hus, in enacting [the predecessor to § 30527],
Congress was well aware of vessels taking passengers on day trips to and
from the same port.”
 EHART, JR. V. LAHAINA DIVERS, INC. 19

In summary, we conclude that the plain language of
§ 30527 limits its application to vessels transporting
passengers between at least two ports and does not apply to
vessels transporting passengers away from and back to a
single port. Because the Dauntless was not transporting
passengers between two ports, but away from and back to a
single port (Lahaina Harbor), § 30527 does not apply. 14

Because the meaning of the statute is clear from its text, the district
court’s review of the legislative history was unnecessary and improper.
CVS Health Corp. v. Vividus, LLC, 878 F.3d 703, 706 (9th Cir. 2017).
But even were the legislative history a suitable basis for statutory
interpretation, the district court’s reasoning misses the mark. The
General Slocum may have planned to depart from and return to the same
port, but it also planned to stop at another port along the way. According
to the record, the steamship was chartered to transport passengers
between its origin port on Manhattan to a picnic ground with its own pier
on Long Island (from which pier the passengers would depart), and later
back to the origin port. Thus, the General Slocum’s intended route was
from Port A (Manhattan) to Port B (Long Island) to Port A, not merely
from Port A to Port A.
14
Plaintiff asserts in conclusory terms that Molokini Crater is a “port.”
We disagree as a matter of law. The ordinary meaning of the word “port”
is a place where vessels may load or unload cargo or passengers from or
onto land—not a mooring buoy where passengers can depart from the
ship into water. See Port, MERRIAM-WEBSTER DICTIONARY,
https://www.merriam-webster.com/dictionary/port
[https://perma.cc/BD46-NXJR]; Port, COLLINS DICTIONARY,
https://www.collinsdictionary.com/us/dictionary/english/port (last
visited Jan. 18, 2024); Port, NATIONAL GEOGRAPHIC,
https://education.nationalgeographic.org/resource/port/
[https://perma.cc/EV8T-BGW8]; Port, AMERICAN HERITAGE
DICTIONARY, https://www.ahdictionary.com/word/search.html?q=port
[https://perma.cc/HUW2-5SAW]; Port, BRITANNICA DICTIONARY,
https://www.britannica.com/dictionary/port [https://perma.cc/8498-
5Q85]. And “port” is not a term of art with “a particular meaning in legal
parlance” such that the court should depart from the ordinary usage of
20 EHART, JR. V. LAHAINA DIVERS, INC.

V. HAWAII REVISED STATUTE § 663–1.54
Plaintiff argues that the liability waiver signed by the
Eharts is void under HRS § 663–1.54 and that Hawaii state
law thus provides an alternate basis to affirm the district
court’s decision striking the affirmative defense of waiver.
HRS § 663–1.54 states:

[O]wners and operators of recreational
activities shall not be liable for damages for
injuries to a patron resulting from inherent
risks associated with the recreational activity
if the patron participating in the recreational
activity voluntarily signs a written release
waiving the owner or operator’s liability for
damages for injuries resulting from the
inherent risks. No waiver shall be valid
unless:
(1) The owner or operator first provides
full disclosure of the inherent risks
associated with the recreational activity;
and
(2) The owner or operator takes
reasonable steps to ensure that each patron
is physically able to participate in the
activity and is given the necessary
instruction to participate in the activity
safely.

HRS § 663–1.54(b). The district court held that it is unclear
based on the pleadings and present record whether

the word. Williams v. King, 875 F.3d 500, 503 (9th Cir. 2017) (quoting
United States v. Guerrerio, 675 F. Supp. 1430, 1438 (S.D.N.Y. 1987), in
explanatory parenthetical).
 EHART, JR. V. LAHAINA DIVERS, INC. 21

conditions of the statute were satisfied, including whether
Defendants provided “full disclosure of the inherent risks”
of snorkeling, whether Defendants took “reasonable steps to
ensure that [Maureen] was physically able to participate in
the activity,” and whether Maureen was “given the necessary
instruction to participate in the activity safely.”
Plaintiff forfeited any argument that the district court
erred in finding that there was a question of fact as to
whether the conditions of the statute were satisfied because
Plaintiff failed to raise this issue in the answering brief. See
Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009). Thus,
on this record, HRS § 663–1.54 does not provide an alternate
basis for upholding the district court’s decision striking the
affirmative defense of waiver. 15
VI. CONCLUSION
For the reasons stated above, we reverse the district
court’s order granting Plaintiff’s motion to strike the
affirmative defense of waiver or release, and we remand for
further proceedings.
REVERSED AND REMANDED.

15
Defendants argue that HRS § 663–1.54 conflicts with federal
admiralty law and is therefore preempted in this context. While
Defendants raise a substantial question about federal preemption, we
need not resolve it here given that the district court found that there is a
question of fact whether the conditions of the Hawaii statute were met.
The district court did not address the preemption issue and the parties
provided only cursory arguments in their briefs. Thus, we decline to
exercise our discretion to resolve the issue now.
22 EHART, JR. V. LAHAINA DIVERS, INC.

COLLINS, Circuit Judge, dissenting:

In asserting jurisdiction over this interlocutory appeal
from an order striking an affirmative defense from an
answer, the majority greatly expands this circuit’s already
overbroad construction of 28 U.S.C. § 1292(a)(3)’s narrow
grant of interlocutory appellate jurisdiction in admiralty
cases. That construction has been rejected by at least four
other circuits, but the majority nonetheless erroneously
extends it in ways that even our prior decisions cannot
justify. Having thus improperly asserted jurisdiction that we
do not have, the majority then erroneously resolves an
important question of law by holding that Congress’s
prohibition of liability waivers for passenger-carrying
vessels, see 46 U.S.C. § 30527, does not apply to day-trip
excursions that start and end at the same port without visiting
another port. Because all of this is wrong, I respectfully
dissent.
I
Plaintiff William Ehart (“Plaintiff” or “William”), his
wife Maureen, and “fourteen other paying passengers” set
out from Maui’s Lahaina harbor aboard the “dive boat”
Dauntless early on the morning of September 14, 2021 for a
“dive tour.” 1 The Dauntless is owned by Defendant Lahaina

1
Because this case arises on a motion to strike an affirmative defense as
“insufficient” under Federal Rule of Civil Procedure 12(f), we must take
the facts as alleged by the non-moving party—here, the Defendants—as
true for purposes of evaluating the adequacy of the challenged defense.
See Rev Op Grp. v. ML Manager LLC (In re Mortgages Ltd.), 771 F.3d
623, 630–32 (9th Cir. 2014) (holding that, in evaluating whether denials
in an answer “were a sufficient defense” under Rule 12(f), the “factual
allegations” contained in those denials “must be presumed to be true”).
Accordingly, I take as true the version of facts reflected in Defendants’
 EHART, JR. V. LAHAINA DIVERS, INC. 23

Divers, Inc. (“Lahaina Divers”). However, the boat was
chartered by a separate entity, Lahaina Dive and Surf, LLC
(“Lahaina Dive & Surf”), which is also the entity that
operated the dive tour and employed the crew. 2 The crew
included the captain, Defendant Cory Dam, as well as two
“open-water-scuba instructor[s]” certified by the
Professional Association of Diving Instructors, namely,
Defendants Kaitlin Miller and Julianne Cricchio.
Dam guided the Dauntless to the “Molokini Crater, a
crescent-shaped islet in the ocean off the southeast coast of
Maui.” However, the vessel was not tied directly to the
crater or to any structure attached to the crater; instead, Dam
tied the boat “to a mooring buoy known as ‘Reef’s End’ at
the Crater.” At that point, Miller and Cricchio led two
groups of passengers, including William, into the water for
their separate scuba excursions. After they did so, several
remaining passengers, including Maureen, went into the
water in order to snorkel. At that time, Dam “was the sole
crew member aboard to maintain a lookout, . . . oversee the
snorkeling activities, recall the divers and snorkelers if
necessary, and provide rescue if necessary.” The complaint
alleges that, after the other snorkelers got back in the boat,

paragraph-by-paragraph answer responding to the factual allegations of
the original complaint. Although an amended complaint and answer
were filed after the district court’s ruling that is challenged in this
interlocutory appeal, the allegations that we must take as true have not
been materially altered by those filings, except to correct (in accordance
with Defendants’ answer) the names of two of the crew members named
as Defendants. Those subsequent filings are therefore of no consequence
to this appeal.
2
Lahaina Dive & Surf has been added as an additional Defendant in the
subsequently filed amended complaint, but it is not a party to this
interlocutory appeal.
24 EHART, JR. V. LAHAINA DIVERS, INC.

Maureen stayed in the water alone and ultimately drifted
away in the current unnoticed. The two scuba groups
returned of their own accord, and at no point did Dam “recall
the scuba divers or snorkelers.” After Maureen’s
disappearance was finally noticed, Miller and Cricchio
swam in the area in an unsuccessful effort to locate her. Dam
also sought assistance on the emergency marine radio
channel, and the Coast Guard and Maui County responders
used “various resources” in a fruitless attempt to locate
Maureen. Maureen was never found and is presumed dead.
The Dauntless returned to Lahaina with its remaining
passengers.
Invoking the district court’s maritime jurisdiction under
28 U.S.C. § 1333, William brought this suit on behalf of
himself and his wife’s estate, naming as Defendants Lahaina
Divers, Dam, Miller, and Cricchio. Invoking theories of
negligence and gross negligence, the complaint alleged
claims for wrongful death, claims for “survival damages” for
the injuries Maureen experienced before her death, and
claims for William’s emotional distress. In answering the
complaint, Defendants Lahaina Divers and Dam (hereafter
“Defendants”) asserted, as an affirmative defense, that
William and Maureen had “waived and released the claims”
asserted. As further elaborated in connection with Plaintiff’s
subsequent motion to strike this affirmative defense, the
defense was based on written waivers that William and
Maureen had each signed before boarding the Dauntless.
The relevant language in those releases stated, inter alia, that
the signatory intended to “exempt, release and hold
harmless” Lahaina Divers, Lahaina Dive & Surf, and related
entities and agents “from all liability whatsoever for personal
injury, property damage, and wrongful death caused by
negligence.”
 EHART, JR. V. LAHAINA DIVERS, INC. 25

In moving to strike this affirmative defense of waiver
and release, Plaintiff contended, inter alia, that the waivers
were void under what is now § 30527 of title 46 of the United
States Code. 3 That statute provides:

(a) Prohibition.—
(1) In general.—The owner, master,
manager, or agent of a vessel transporting
passengers between ports in the United
States, or between a port in the United States
and a port in a foreign country, may not
include in a regulation or contract a provision
limiting—
(A) the liability of the owner, master, or
agent for personal injury or death caused
by the negligence or fault of the owner or
the owner’s employees or agents; or
(B) the right of a claimant for personal
injury or death to a trial by court of
competent jurisdiction.
(2) Voidness.—A provision described in
paragraph (1) is void.

3
At the time of the relevant district court proceedings, this provision was
contained in § 30509 of title 46. However, in December 2022, Congress
redesignated § 30509 as § 30527. See Pub. L. No. 117-263,
§ 11503(a)(3), 136 Stat. 2395, 4130 (Dec. 23, 2022). Prior to the
enactment of title 46 as positive law in 2006, the predecessor provision
to § 30509 was contained in § 4283B of the Revised Statutes and was
classified to § 183c of the unenacted version of title 46. The underlying
prohibition on liability waivers was first enacted as § 4283B in 1936.
See Ch. 521, § 2, 49 Stat. 1479, 1480 (June 5, 1936).
26 EHART, JR. V. LAHAINA DIVERS, INC.

46 U.S.C. § 30527(a). Concluding that the written waivers
signed by Plaintiff and Maureen were covered by
§ 30527(a)(1), the district court on May 10, 2022 held that
the waivers were void under § 30527(a)(2). Accordingly,
the court granted Plaintiff’s motion to strike Defendants’
defense of waiver and release.
Defendants timely filed a motion for reconsideration of
the district court’s order, and in that motion they also asked,
in the alternative, that the district court certify that order for
immediate interlocutory appeal under 28 U.S.C. § 1292(b).
The district court denied the motion. Contending that the
order granting the motion to strike was nonetheless
immediately appealable as of right under 28 U.S.C.
§ 1292(a)(3), Defendants filed a timely notice of appeal.
II
In my view, we lack interlocutory jurisdiction over this
appeal, and I therefore would dismiss it without reaching the
merits.
A
“From the very foundation of our judicial system, the
general rule has been that the whole case and every matter in
controversy in it must be decided in a single appeal.”
Microsoft Corp. v. Baker, 582 U.S. 23, 36 (2017)
(simplified). Under this “general rule,” that “single appeal”
is “to be deferred until final judgment has been entered,” at
which time “claims of district court error at any stage of the
litigation may be ventilated.” Digital Equip. Corp. v.
Desktop Direct, Inc., 511 U.S. 863, 868 (1994). This “final-
judgment rule,” now codified in 28 U.S.C. § 1291, is based
on the recognition that “[p]ermitting piecemeal,
prejudgment appeals . . . undermines ‘efficient judicial
 EHART, JR. V. LAHAINA DIVERS, INC. 27

administration’ and encroaches upon the prerogatives of
district court judges, who play a ‘special role’ in managing
ongoing litigation.” Mohawk Indus., Inc. v. Carpenter, 558
U.S. 100, 106 (2009) (citations omitted).
Congress, however, has recognized several statutory
exceptions to that general rule by expressly “authoriz[ing]
review of certain interlocutory decisions” in the various
provisions of 28 U.S.C. § 1292. Baker, 582 U.S. at 27 n.1.
After unsuccessfully attempting to persuade the district court
to invoke one of those exceptions—namely, § 1292(b)’s
discretionary authority to allow interlocutory appeals of
orders resolving certain “controlling question[s] of law”—
Defendants asserted that they could take an immediate
appeal as of right under a different subsection of § 1292.
Specifically, Defendants invoked subsection (a)(3) of that
statute, which authorizes appeals of:

(3) Interlocutory decrees of such district
courts or the judges thereof determining the
rights and liabilities of the parties to
admiralty cases in which appeals from final
decrees are allowed.

28 U.S.C. § 1292(a)(3). Accordingly, whether we have
jurisdiction over this appeal turns dispositively on whether
the district court’s order striking the affirmative defense
counts as an “[i]nterlocutory decree[] . . . determining the
rights and liabilities of the parties to admiralty cases in which
appeals from final decrees are allowed.” Id. There is no
question that this is an “admiralty case[],” nor is there any
doubt that this is a case in which, when a final decree is
entered, an “appeal[] from [that] final decree[] [is] allowed.”
Id. There is likewise no dispute that the district court’s order
28 EHART, JR. V. LAHAINA DIVERS, INC.

here is “[i]nterlocutory.” Id. The only question, then, is
whether it counts as a “decree[] . . . determining the rights
and liabilities of the parties.” Id.
This distinctive phrase traces back verbatim to the
enactment of the predecessor to § 1292(a)(3) in 1926. See
Ch. 102, 44 Stat. 233 (Apr. 3, 1926) (adding, to § 129 of the
Judicial Code, language stating that “[i]n all cases where an
appeal from a final decree in admiralty to the circuit court of
appeals is allowed an appeal may also be taken to said court
from an interlocutory decree in admiralty determining the
rights and liabilities of the parties”). In explaining the
primary purpose of the provision, we have stated:

It was a common practice for the admiralty
court to determine first the issue of liability
and, if it found liability, to refer the parties to
a commissioner for the determination of
damages. The purpose of § 1292(a)(3) was
to permit a party found liable to take an
immediate appeal from that finding and
thereby possibly avoid an oftentimes costly
and protracted trial of the damages issue.

Seattle First Nat’l Bank v. Bluewater P’ship, 772 F.2d 565,
568 (9th Cir. 1985) (quoting 9 MOORE’S FEDERAL PRACTICE
¶ 110.19[3], at 209–10 (1985)); see also Stark v. Texas Co.,
88 F.2d 182, 183 (5th Cir. 1937) (similar). In a series of
early decisions, the Second Circuit suggested that the
interlocutory jurisdiction granted by the statute extended
little, if at all, beyond that paradigmatic context—i.e., one in
which liabilities have been fully adjudicated, “leaving only
the question of damages for determination.” H. Lissner &
Co. v. Oceanic Steam Nav. Co., 30 F.2d 290, 290 (2d Cir.
 EHART, JR. V. LAHAINA DIVERS, INC. 29

1929); see also The Maria, 67 F.2d 571, 571 (2d Cir. 1933)
(“That statute was primarily intended to avoid the expense
and delay of a reference to compute damages, since it is
always possible that the libelant may later turn out to have
no right to recover at all; and, although it would perhaps be
too much to say that it covers that situation alone, it is hard
to imagine other instances.”).
This narrow understanding also comports with the
statutory language. An order that has not yet found whether
a plaintiff in fact has a “right” to recover from a defendant
and whether a defendant in fact has a “liability” to a plaintiff
cannot be said to have “determined the rights and liabilities
of the parties.” 28 U.S.C. § 1292(a)(3) (emphasis added).
See Determine, WEBSTER’S SECOND NEW INTERNATIONAL
DICTIONARY 711 (1939) (“To settle a question or
controversy about; to decide by authoritative or judicial
sentence; as, the court has determined the cause.”).
Anything less than such a determination of rights and
liabilities is simply the resolution of some preliminary issue
and does not come within the statutory language. And that
remains true even if the order resolves an important
substantive legal question touching upon the merits of the
controversy. Any more expansive reading of the statute
would violate the settled rule that, as an exception to “the
final judgment rule,” § 1292(a)(3) must be “construed
narrowly” to embrace only what comes within its plain
terms. Seattle First, 772 F.2d at 568; see also
Schoenamsgruber v. Hamburg American Line, 294 U.S.
454, 458 (1935).
Under this understanding of the statute, the jurisdictional
issue in this case is easy. An order striking a particular
defense as being inapplicable to the case at bar simply does
not “determin[e]” the “rights and liabilities of the parties”
30 EHART, JR. V. LAHAINA DIVERS, INC.

under any reasonable reading of those words. 4 As the district
court correctly observed in denying Plaintiff’s request to
authorize a discretionary appeal under § 1292(b), the
striking of Defendants’ affirmative defense of waiver neither
established nor precluded Defendants’ liability for any of the
relief sought. That was true, the district court noted, because
it was undisputed that the asserted defense of waiver did not
apply to Plaintiff’s claims based on gross negligence. See
Royal Ins. Co. v. Southwest Marine, 194 F.3d 1009, 1016
(9th Cir. 1999) (holding that “a party to a maritime contract
should not be permitted to shield itself contractually from
liability for gross negligence”). Because the motion to strike
thus merely resolved whether Plaintiff would have to show
gross negligence, rather than mere negligence, it did not
settle in any respect whether or not Defendants are actually
liable to Plaintiff. The district court’s order thus plainly does
not fall within the scope of § 1292(a)(3).
B
But matters are not so easy, at least in this circuit. As we
noted in Wallis v. Princess Cruises, Inc., 306 F.3d 827 (9th
Cir. 2002), the Third, Fourth, and Fifth Circuits have all
held—consistent with what I have sketched above—“that
§ 1292(a)(3) requires a determination of actual liability [or

4
I express no view on the question whether, under the statutory language,
all of the “rights and liabilities” of all of “the parties” must first be
resolved before an appeal under § 1292(a)(3) would be authorized. See
Chem One, Ltd. v. M/V Rickmers Genoa, 660 F.3d 626, 640–41 (2d Cir.
2011) (adopting the “majority view” that § 1292(a)(3) “permits an
interlocutory appeal when rights and liabilities have been determined
between two of a number of parties, notwithstanding that disputes remain
between one of them and others, as, for example, between the plaintiff
and one of several defendants, or between a defendant and third-party
defendant” (simplified)).
 EHART, JR. V. LAHAINA DIVERS, INC. 31

non-liability] by the district court.” Id. at 833–34 (emphasis
added) (citing Evergreen Int’l (USA) Corp. v. Standard
Warehouse, 33 F.3d 420, 424 (4th Cir. 1994); Bucher-Guyer
AG v. M/V Incotrans Spirit, 868 F.2d 734, 735 (5th Cir.
1989); and Burgbacher v. Univ. of Pittsburgh, 860 F.2d 87,
88 (3d Cir. 1988)). However, we also correctly noted in
Wallis that Ninth Circuit precedent had already departed
from that narrow understanding of the jurisdiction conferred
by § 1292(a)(3). Id. at 832–33 (citing Carman Tool &
Abrasives, Inc. v. Evergreen Lines, 871 F.2d 897 (9th Cir.
1989), and Vision Air Flight Serv., Inc. v. M/V Nat’l Pride,
155 F.3d 1165 (9th Cir. 1998)). In line with those cases, we
reaffirmed in Wallis that an order determining “the validity
and applicability of a provision limiting liability” counts as
a “decree[] . . . determining the rights and liabilities of the
parties” within the meaning of § 1292(a)(3). Id. at 834
(emphasis added).
Although this court in Carman Tool and Vision Air had
simply asserted jurisdiction under § 1292(a)(3) without any
analysis, we offered the following explanation in Wallis for
upholding such jurisdiction over appeals of orders
concerning “the validity and applicability of a provision
limiting liability”:

If a district court holds that a limitation of
liability clause is valid and applicable, that
determination will, as a practical matter,
usually end the case. For example, in a
COGSA [Carriage of Goods at Sea Act] case,
if the district court has held that a plaintiff can
recover no more than $500 if actual liability
is established, an economically rational
plaintiff will not ordinarily pursue the case to
32 EHART, JR. V. LAHAINA DIVERS, INC.

judgment, and the correctness of the district
court’s determination of applicability of the
liability limitation will never be reviewed.
Limitation of liability provisions are
common in maritime cases, not limited to
cases brought under COGSA. As we read
§ 1292(a)(3), it takes into account the
practical problem posed by limitations of
liability. Its explicit text of § 1292(a)(3)
authorizes [appeals of] “interlocutory
decrees.” If the phrase “determination of the
. . . liabilities,” which occurs later in the same
text, were construed to exclude a
determination of limitations of liability from
“interlocutory decrees,” such a construction
would make interlocutory appeals impossible
in many admiralty cases, and would do so in
precisely those cases where such appeals are
most needed. We therefore hold that we have
jurisdiction to decide this interlocutory
appeal.

Wallis, 306 F.3d at 834.
As this excerpt makes clear, the reasoning in Wallis’s
atextual and policy-based analysis rests on what has
sometimes been described as the “death knell” theory of
appellate jurisdiction—i.e., that an interlocutory appeal
should be allowed when the practical effect of an adverse
ruling makes it economically infeasible or impractical for the
losing party to continue litigating to final judgment. See,
e.g., Coopers & Lybrand v. Livesay, 437 U.S. 463, 466
(1978). However, in its subsequent decision in Baker, the
Supreme Court reaffirmed its longstanding rejection of any
 EHART, JR. V. LAHAINA DIVERS, INC. 33

such “death-knell doctrine” as a basis for recognizing
exceptions to the final judgment rule. Baker, 582 U.S. at 29.
Among other points, the Court emphasized that § 1292(b)
expressly authorized discretionary appeals of certain
“controlling question[s] of law” whose appellate resolution
would “materially advance the ultimate termination of the
litigation,” 28 U.S.C. § 1292(b), and employing the death-
knell doctrine to authorize immediate appeals, as of right, of
potentially case-dispositive issues improperly
“circumvented § 1292(b)’s restrictions.” Baker, 582 U.S. at
29 (simplified). As the instant case starkly illustrates,
Wallis’s death-knell-based expansive reading of
§ 1292(a)(3) contravenes Baker’s admonition against
construing appellate jurisdictional provisions in a manner
that would circumvent the limitations of § 1292(b). Wallis
thus relied dispositively on reasoning that was later
emphatically rejected by the Supreme Court. As a result, the
continued validity of our holding in Wallis—which remains
the subject of a lopsided circuit split—seems highly
doubtful, to say the least. 5
But even assuming arguendo that Wallis is not “clearly
irreconcilable” with Baker, see Miller v. Gammie, 335 F.3d
889, 899–900 (9th Cir. 2003) (en banc), I disagree with the

5
Since our decision in Wallis, the Eleventh Circuit has expressly rejected
it and instead adopted the contrary position of the Third, Fourth, and
Fifth Circuits. See Wajnstat v. Oceania Cruises, Inc., 684 F.3d 1153,
1155–56 (11th Cir. 2012). Moreover, the Third and Fifth Circuits have
reaffirmed their contrary positions and expressly rejected Wallis. SCF
Waxler Marine, L.L.C. v. ARIS T M/V, 902 F.3d 461, 466 (5th Cir. 2018)
(rejecting Wallis); Estate of Hager ex rel. Hager v. Laurelton Welding
Serv., Inc., 124 F. App’x 104, 106–07 (3d Cir. 2005). Either in this case,
or in a subsequent case, we should consider eliminating this circuit split
by overruling Wallis en banc.
34 EHART, JR. V. LAHAINA DIVERS, INC.

majority’s further expansion of Wallis in this case. In
asserting interlocutory appellate jurisdiction under
§ 1292(a)(3), our published opinions in Wallis, Carman
Tool, and Vision Air each characterized the respective
district court orders in those cases as having effectively
imposed an across-the-board limitation on the defendants’
liability. Thus, in both Carman Tool and Vision Air, we
stated that the respective district court orders had accepted
the defendants’ argument that any liability in the case, on
any theory, was limited to a small, fixed amount. See Vision
Air, 155 F.3d at 1168 (“The district court granted [the
defendants’] motion and issued an order granting partial
summary judgment, limiting [the defendants’] liability to
$1000.00.”); Carman Tool, 871 F.2d at 899 (stating that
“[a]ll parties moved for partial summary judgment as to
whether defendants’ liability is limited to $500 per package”
and that “[t]he district court granted partial summary
judgment in favor of defendants”). 6 In Wallis, we similarly
explained that, because the district court ruling limited the
defendants’ liability in the case to $60,000, Wallis was
“procedurally and jurisdictionally identical to Carman
Tool”:

As an affirmative defense, Princess asserted
that its liability, if any, for the death of Mr.

6
In Vision Air, we held that negligence, gross negligence, and
recklessness provided no basis for evading the liability cap in that case,
but that intentional conduct was not subject to the cap. See 155 F.3d at
1175. And because we concluded that there was a triable issue as to
whether some of the damages were intentionally caused, we reversed, to
that limited extent, the district court’s imposition of a complete cap on
liability. Id. at 1176. In Carman Tool, we affirmed the district court’s
ruling and agreed that “defendants are entitled to COGSA’s $500 per
package limitation.” 871 F.2d at 901–02.
 EHART, JR. V. LAHAINA DIVERS, INC. 35

Wallis is limited to roughly $60,000 pursuant
to its Passage Contract. Princess moved for
partial summary judgment as to whether its
liability is so limited, and the district court
granted the motion. As in Carman Tool, the
district court in our case has not decided
whether Princess is actually liable for
plaintiff’s wrongful death claim. It has only
decided that, if Princess were liable, its
liability would be limited pursuant to the
contract.

306 F.3d at 833 (emphasis added).
It is perhaps at least plausible to say—as these cases
did—that, when a district court has determined that the
defendants in fact had no liability for the entire category of
damages above the relevant fixed amount, such a ruling has
“determin[ed] the rights and liabilities of the parties” with
respect to such further damages. 28 U.S.C. § 1292(a)(3)
(emphasis added). But the same cannot be said in this case.
As noted earlier, all that is at stake here is whether Plaintiff’s
claims for negligence will be knocked out of the case,
leaving him only with his claims for gross negligence.
Merely removing one legal theory of liability from a case
does not “determin[e]” anything at all about Defendants’
ultimate liability for any class of damages. Regardless of
how Plaintiff’s motion to strike is resolved, Defendants’
liability vel non for any and all claimed damages remains
entirely undecided, because the only issue at stake in that
motion is what Plaintiff will have to prove to recover. The
majority’s expansion of Wallis to that distinct context blows
a gaping hole in the final judgment rule in admiralty cases.
36 EHART, JR. V. LAHAINA DIVERS, INC.

The majority does not and cannot dispute that, as written,
our opinion in Wallis asserted jurisdiction under
§ 1292(a)(3) on the theory that, as in Carman Tool and
Vision Air, the district court’s ruling imposed a cap on the
defendant’s liability. Instead, the majority insists that,
because this court had previously held that “a party to a
maritime contract should not be permitted to shield itself
contractually from liability for gross negligence,” Royal Ins.
Co., 194 F.3d at 1016, the district court order at issue in
Wallis must be understood as having left available to the
plaintiffs for trial an un-capped claim for gross negligence.
See Opin. at 12 n.8. With that additional “fact” engrafted
into Wallis’s description of the facts of that case, the
majority reasons, Wallis would then be on all fours with this
case. The problem with this argument is that it rewrites
Wallis to stand for something very different from what that
opinion actually says. The Wallis opinion says nothing at all
about any such exception for claims of gross negligence;
indeed, that opinion affirmatively implies that the Wallis
plaintiff’s sole remaining claim under the Death on the High
Seas Act (“DOHSA”) was based only on negligence. See
Wallis, 306 F.3d at 832 (stating that “the district court left
for trial the issue of whether Princess was liable for a
negligent search under DOHSA” (emphasis added)).
Moreover, far from stating that the case involved only a
partial liability cap that applied only to certain theories of
liability and not to others, we said in Wallis that the district
court order there involved a limitation of liability that was
“identical” to the across-the-board caps at issue in Carman
Tool and Vision Air. See Wallis, 306 F.3d at 833 (emphasis
added). Contrary to what the majority seems to suggest,
Wallis is binding precedent based only on the facts and
rationale as we described them (rightly or wrongly) in that
 EHART, JR. V. LAHAINA DIVERS, INC. 37

decision. Because our opinion in Wallis asserted jurisdiction
based on the clearly stated premise that the district court’s
order there was an across-the-board limitation of liability,
that precedent provides no justification for the majority’s
extension of Wallis’s rule beyond that context. 7
The majority’s unduly expansive reading of § 1292(a)(3)
also largely renders the limitations of § 1292(b) a dead letter
in admiralty cases. If, as the majority claims, § 1292(a)(3)
allows interlocutory appeals of pretrial orders that merely
resolve the legal viability of one or more alternative theories
of liability or defense, there is no practical need ever to resort
to § 1292(b) in admiralty cases. The sort of threshold legal
issues that the majority now brings within § 1292(a)(3)’s
appeal-as-of-right are precisely the kind of “controlling
question[s] of law” that come within the purview of
§ 1292(b), but that statute does not authorize an appeal
unless the follow conditions are met: “there is substantial
ground for difference of opinion”; an immediate appeal
might “materially advance the ultimate termination of the
litigation”; and both the district court and the court of
appeals exercise their respective discretion to allow the
appeal. 28 U.S.C. § 1292(b). None of those additional
limitations in § 1292(b) makes any difference in admiralty

7
As it turns out, the majority may be correct in speculating that our
opinion in Wallis may have misdescribed the facts of that case. The
answering brief of the defendants in Wallis described the district court
order there as having “limit[ed] plaintiff’s damages to approximately
$60,000, unless she can prove [the defendants’] conduct was reckless.”
Brief of Appellees, Wallis v. Princess Cruises, Inc., No. 01-56700, 2002
WL 32139357, at *6. But our opinions have precedential force only as
written and not based on how (in light of research into the underlying
case files) they should have been written. It is particularly problematic
to extend Wallis to a fact pattern that we never mentioned in our opinion
in that case and to which our stated rationale does not apply.
38 EHART, JR. V. LAHAINA DIVERS, INC.

cases under the majority’s overbroad reading of
§ 1292(a)(3), as this case vividly illustrates: here, the district
court expressly held that these additional requirements were
not met, but Defendants took the appeal anyway. Thus, in
addition to being unsupported by the text of the statute or our
caselaw, the majority’s flawed reading of § 1292(a)(3)
improperly “circumvent[s] § 1292(b)’s restrictions.” Baker,
582 U.S. at 29 (simplified).
Because we lack jurisdiction over this interlocutory
appeal, I would dismiss Defendants’ appeal and would not
reach the merits.
III
The majority, however, concludes that we do have
jurisdiction, and it therefore proceeds to issue a binding
precedential opinion as to the scope of the ban on liability
waivers in § 30527. In my view, the majority’s construction
of the statute is wrong.
A
As noted earlier, § 30527 declares to be “void” any
“provision” in a “contract” that “limit[s] . . . the liability of
the owner, master, or agent” of a covered vessel “for
personal injury or death caused by the negligence or fault of
the owner or the owner’s employees or agents.” 46 U.S.C.
§ 30527(a)(1)(A), (2). In holding that the statute is
inapplicable here, the majority relies only on the threshold
determination that the “vessel” in question—the
Dauntless—does not fall within the subset of vessels that are
 EHART, JR. V. LAHAINA DIVERS, INC. 39

covered by the statute. 8 I disagree with that conclusion and
with the construction of § 30527 on which it is based.
The statute states that its prohibition on liability waivers
applies to any “vessel transporting passengers between ports
in the United States, or between a port in the United States
and a port in a foreign country.” 46 U.S.C. § 30527(a)(1). 9
The plain language of the statute thus describes the covered
“vessel[s]” by reference to the travel by which they
“transport[] passengers”: a “vessel” is covered only if it
either “transport[s] passengers between ports in the United
States” or transports them “between a port in the United
States and a port in a foreign country.” 46 U.S.C.
§ 30527(a)(1). This language confirms that two things must
be true for the vessel to be covered.
First, the vessel must be “transporting” “passengers”
“between” ports—meaning that, if the vessel was never
intended to be taken out into the water with its passengers,
then it is not covered. The statute would thus not apply to,
say, a visit to the Queen Mary at its permanent mooring in
Long Beach. That makes sense, because if there is no plan
for the ship ever to leave port, then the dangers associated
with such transportation—which are ultimately what
underly the rule against liability waivers—would never be

8
The majority does not dispute that the Dauntless is a “vessel,” and it
clearly is. For purposes of the U.S. Code, the term “vessel” expressly
“includes every description of watercraft or other artificial contrivance
used, or capable of being used, as a means of transportation on water.”
1 U.S.C. § 3.
9
Effective December 23, 2022, § 30527 does not apply “to covered small
passenger vessels” as defined in 46 U.S.C. § 30501(1). See 46 U.S.C.
§ 30502(b). No party has contended that this exception is relevant to our
resolution of this appeal, and I express no view on that question.
40 EHART, JR. V. LAHAINA DIVERS, INC.

implicated. In this respect, it is important to recognize that
the enactment of § 30527’s predecessor in 1936 partly
served to codify the longstanding rule of maritime law and
common law that, in order to ensure that common carriers
by sea or by land would exercise “the highest degree of
carefulness and diligence” with “regard to passengers,” such
carriers were barred from disclaiming liability towards such
passengers. See Liverpool & G.W. Steam Co. v. Phenix Ins.
Co., 129 U.S. 397, 439–40 (1889); id. at 443–61 (rejecting
the view that maritime law, at least in the United States,
applied a different rule); see also New York Cent. R.R. Co. v.
Lockwood, 84 U.S. 357, 384 (1873) (holding that a common
carrier “cannot lawfully stipulate” to “exemption from
responsibility for the negligence of himself or his servants”
and that this rule applies “both to carriers of goods and
carriers of passengers for hire, and with special force to the
latter”); The Oregon, 133 F. 609, 630 (9th Cir. 1904)
(holding, in an action for personal injuries suffered by
passengers during a voyage, that if the “provision of the
contract, relieving the carrier from responsibility for the
negligence of the carrier . . . can be held to be applicable, it
is clearly void by reason of being against public policy”).
Second, the statute specifies that at least one of the ports
in question must be a United States port. The obvious import
of this requirement is to impose a jurisdictional element that
excludes vessels transporting passengers entirely between
foreign ports. See Hodes v. S.N.C. Achille Lauro ed Altri-
Gestione, 858 F.2d 905, 914–15 (3d Cir. 1988) (stating that
§ 30527’s predecessor was enacted to settle the
“jurisdictional scope” of the maritime-law anti-liability-
waiver rule and did so by “delimit[ing] the reach of
American public policy to contracts of passage for voyages
 EHART, JR. V. LAHAINA DIVERS, INC. 41

that touch the United States”), overruled on other grounds
by Lauro Lines s.r.l. v. Chasser, 490 U.S. 495 (1989).
This particular aspect of § 30527(a)(1) traces back to the
predecessor statute enacted in 1936, 10 and it reflected an
important change in then-existing law. Cf. Mendoza-Linares
v. Garland, 51 F.4th 1146, 1164 (9th Cir. 2022) (“Congress
. . . is presumed to know the law.”). Specifically, by
excluding wholly foreign voyages from the statute’s anti-
liability-waiver rule, Congress thereby abrogated the Second
Circuit’s 1925 split decision in Oceanic Steam Navigation
Co. v. Corcoran, 9 F.2d 724 (2d Cir. 1925). There, the
plaintiff, a passenger on the Canopic as it traveled from
Montreal to Liverpool, was seriously injured due to the
alleged negligence of a ship steward. Id. at 725–26. Her
ticket contained a liability-limiting provision, but the Second
Circuit held that, because the contract was made in the
United States, that provision was void. Id. at 726–27, 733.
As the court explained, “[u]nder the admiralty law of the
United States, a common carrier by sea cannot by any
contract it makes exempt itself from all responsibility for
loss or damage by perils of the sea arising from the
negligence of its officers or crew.” Id. at 727. Notably, the
Second Circuit applied U.S. law on this point, even though
application of English law would have led to a different
conclusion; the contract expressly stated that it was governed
by English law; and the ship was traveling exclusively
between foreign ports. Id. at 728–33. Judge Hough

10
See Ch. 521, 49 Stat. 1479, 1480 (June 5, 1936) (enacting § 4283B of
the Revised Statutes) (stating that the prohibition on liability waivers
generally applied to “any vessel transporting passengers between ports
of the United States or between any such port and a foreign port”).
42 EHART, JR. V. LAHAINA DIVERS, INC.

dissented, arguing that the majority’s application of U.S. law
was “the apex of unreason.” Id. at 733.
Under § 30527 and its 1936 predecessor, the now-
codified rule voiding liability waivers for vessels
transporting passengers would not apply to the sort of wholly
foreign voyage at issue in Oceanic Steam, because that
voyage did not involve transportation of passengers either
“between ports in the United States” or “between a port in
the United States and a port in a foreign country.” 46 U.S.C.
§ 30527(a)(1). See Hodes, 858 F.3d at 914–15 (noting that
Oceanic Steam was a departure from the then-existing
caselaw and that Congress abrogated it by limiting the
liability-waiver rule to “voyages that touch the United
States”).
Viewed against this backdrop, § 30527 clearly applies to
the Dauntless. Because the Dauntless was “transporting
passengers” from Lahaina (a “port[] in the United States”),
out into the water, and then back to Lahaina (again, a “port[]
in the United States”), the travel was “between ports in the
United States.” 46 U.S.C. § 30527(a)(1). The prohibition in
that section therefore applies to the Dauntless as a threshold
matter, leaving only the question of whether the substantive
rule contained in § 30527(a) prohibits the type of liability
waiver contained in this release. 11

11
As I note below, Defendants alternatively contend that § 30527(a) only
precludes waiving liability that relates to the vessel’s transportation of
passengers and that the statute therefore does not preclude waivers of
liability concerning additional potentially high-risk activities, such as
scuba diving or snorkeling. See infra section III(C).
 EHART, JR. V. LAHAINA DIVERS, INC. 43

B
The majority nonetheless concludes that, in addition to
partly codifying the established maritime rule against
liability waivers and excluding its application to wholly
foreign voyages, Congress in § 30527 went further and also
categorically excluded, from the coverage of that rule, any
excursion trip that starts and ends in the same U.S. port. That
is incorrect.
First, the majority’s view would effectively rewrite the
statute as applying only to “transporting passengers between
different ports in the United States.” As we have explained
in another context, “[h]ad Congress intended to impose such
a limitation, it could easily have added that simple word. But
it did not do so, and we cannot rewrite the statute to insert an
additional restriction that Congress omitted.” See
Charboneau v. Davis, 87 F.4th 443, 454 (9th Cir. 2023).
And under the language Congress wrote, there is no such
different-ports requirement. In maritime usage, a “port” can
refer either to a “port of departure,” which is “[t]he port from
which a vessel departs on the start of a voyage,” or to a “port
of destination,” which is “[t]he port at which a voyage is to
end.” Port, BLACK’S LAW DICTIONARY (11th ed. 2019).
Transportation “between ports” would thus be understood as
transportation “between” a “port” of departure and a “port”
of destination, and there is no conceivable logical reason
why those ports cannot be the same. And when, as here, they
are the same, and that port happens to be in the United States,
then the resulting travel is “between ports in the United
States.”
The majority contends that the requirement that the port
of departure and the port of destination be different arises
from the use of the word “between,” which it says “implies
44 EHART, JR. V. LAHAINA DIVERS, INC.

more than one.” See Opin. at 16. In support of this
contention, the majority notes, for example, that in the
dictionary’s illustrative phrases “the alley between the
butcher shop and the pharmacy” and “should arrive between
9 and 10 o’clock,” there are necessarily “two shops and two
times.” See Opin. at 15 n.11 (citation omitted). But it simply
is not true that “between” always connotes two different
reference points, as a few counter-examples will
demonstrate. A runner halfway through a 400-meter race on
a 400-meter oval running track is “between” the starting line
and the finish line, even though they are the same line.
Someone halfway through Finnegan’s Wake is “between”
the beginning and the end of the novel, even though it ends
where it began. And Benjamin Harrison, like every past
President except Washington, served “between” Presidents,
even though in Harrison’s case, those Presidents were the
same person (Grover Cleveland). The difference in the two
reference points in the majority’s examples does not flow
from anything inherent in the concept of “between”; rather,
it is an artifice of these particular examples. Because there
is no such thing as time travel, one cannot arrive, after a
journey, at the same moment that one left; the times will
necessarily be different. And if one describes an “alley” by
reference to its two physical sides on the ground, those sides
will necessarily be different, even if (to change the
majority’s example) the alley bisects a single shop. The
point is that, although “between” is frequently used to link
things that cannot be said to be the same, the majority is
wrong in insisting that the word “between” “necessarily”
implies that the two reference points must be distinct in all
relevant senses. See Opin. at 16 (emphasis added). And, in
particular, there is nothing peculiar about saying that a
passenger is being transported “between ports” if he leaves
 EHART, JR. V. LAHAINA DIVERS, INC. 45

the port of Lahaina, travels around the Molokini Crater, and
returns to the port of Lahaina.
Second, the majority’s reading of the statute violates the
rule that a “textually permissible interpretation that furthers
rather than obstructs the [statute’s] purpose should be
favored.” ANTONIN SCALIA & BRYAN A. GARNER, READING
LAW: THE INTERPRETATION OF LEGAL TEXTS 63 (2012). The
majority’s reading of the statute is not compelled by its
language, and we should not adopt it when it produces
irrational distinctions that would pointlessly thwart the
statute’s evident objective. Even agreeing (as I do) that the
majority is correct that a mooring buoy does not count as a
“port,” see Opin. at 19 n.14, the majority’s refusal to apply
the statute to an excursion that returns to the same port would
produce distinctions that make no conceivable rational
sense. The following hypotheticals illustrate the point:

• Two snorkel boats leave a Hawaiian
harbor, headed to a pristine area off an
adjacent island where sea turtles are
known to swim. The first docks at an old
wooden pier stretching out from the
island; the second docks a hundred feet
away, at a floating mooring buoy. On the
majority’s view, the passengers on the first
ship are protected by § 30527(a), while the
passengers on the second ship are not.
• Two ships leave the Port of Long Beach
for identical day-long whale-watching
trips off the California coast. The first is
scheduled, upon its return, to dock at a
different berth in the Port of Long Beach.
The second is scheduled, upon return, to
46 EHART, JR. V. LAHAINA DIVERS, INC.

dock at a nearby berth that is technically in
the adjacent Port of Los Angeles. On the
majority’s view, the passengers on the
second ship are protected by § 30527(a),
while the passengers on the first ship are
not.
• A riverboat line offers scenic day tours
with two slightly different itinerary
options. On the first, an on-board five-star
chef prepares lunch, allowing passengers
to enjoy the scenery without ever leaving
the ship. On the second, the ship docks for
an hour at a pier that hosts a well-known
local restaurant where the passengers will
have lunch. The voyages otherwise travel
the same distance, show passengers the
same sights, last for the same period of
time, and return to the same port. On the
majority’s view, the passengers on the
second ship are protected by § 30527(a),
while the passengers on the first ship are
not.

None of these distinctions makes even the slightest bit of
sense. As noted above, the self-evident objective of the
statute—like the maritime rule it partly codified—is to
preclude operators of vessels that carry passengers into the
“perils of the sea” from disclaiming their responsibilities to
exercise due care towards those passengers. See Oceanic
Steam, 9 F.2d at 727. Viewing the statute in that light, it
makes no sense to say that the vessel operator’s duty to
protect against such perils turns on whether the ship touches
a distinct port. Congress, of course, is free to enact
 EHART, JR. V. LAHAINA DIVERS, INC. 47

seemingly irrational statutes, subject to minimum
constitutional limits. But we should not lightly assume that
Congress has chosen that route—particularly where a
perfectly rational alternative construction is available,
compatible with the statutory text and context, and supported
by the maritime-law principles underlying the statute. The
majority opinion assumes that Congress chose to be
irrational in this instance. I do not.
Accordingly, I conclude that the Dauntless counts as a
“vessel transporting passengers between ports in the United
States.” 46 U.S.C. § 30527(a)(1).
C
The key remaining merits question is whether
Defendants are correct in alternatively contending that, even
if § 30527(a) applies as a threshold matter to the Dauntless,
the statute does not void a liability waiver for snorkeling or
scuba diving. In support of this argument, Defendants cite
the Eleventh Circuit’s decision adopting this view, at least
with respect to additional activities that do not occur on the
ship itself. See Shultz v. Fla. Keys Dive Ctr., Inc., 224 F.3d
1269, 1271 (11th Cir. 2000) (holding that the predecessor to
§ 30527 did not apply to a “liability release to participate in
the recreational and inherently risky activity of scuba
diving”); cf. Johnson v. Royal Caribbean Cruises, Ltd., 449
F. App’x 846, 848–49 (11th Cir. 2011) (holding, without
citing Shultz, that § 30527’s predecessor applied to an on-
board “simulated surfing and body boarding activity,”
because “[t]he statute contains no exceptions regarding the
type of activity—whether recreational, ultra hazardous, or
otherwise—in which the passenger is partaking when the
injury occurs”). Defendants also note that, in addressing the
common law liability of common carriers prior to the
48 EHART, JR. V. LAHAINA DIVERS, INC.

enactment of § 30527’s predecessor, the Supreme Court had
held that the common law prohibition of liability waivers for
common carriers did not extend to “special engagements
which are not embraced within its duty as a common carrier,
although their performance may incidentally involve the
actual transportation of persons and things, whose carriage
in other circumstances might be within its public
obligation.” Sante Fe, Prescott & Phoenix Ry. Co. v. Grant
Bros. Constr. Co., 228 U.S. 177, 185 (1913) (emphasis
added); see also id. (“Manifestly, this rule [against liability
waivers] has no application when a railroad company is
acting outside the performance of its duty as a common
carrier.”). Plaintiff counters that Defendants’ proposed
restriction on the scope of § 30527’s anti-liability-waiver
rule simply lacks any basis in the statutory text and therefore
was properly rejected by the district court.
Under the unique circumstances of this appeal, I decline
to address this question. As I have explained, in my view,
we lack jurisdiction over this appeal, and we therefore lack
the power to say anything about its merits. Given that the
majority has concluded that we do have jurisdiction and has
issued a binding precedential opinion holding that § 30527
does not apply to excursions to and from the same port, I
nonetheless think it is appropriate for me—despite my
dissent on the jurisdictional issue—to proceed to point out
why the majority’s conclusion on that particular merits issue
is incorrect and should not have been made the binding law
of this circuit. But having done so, I see no reason why I
should say anything more. Doing so would be to further
exercise a jurisdiction that I do not think we have in order to
gratuitously provide my views on additional merits issues
that the majority has not discussed. I therefore decline to say
anything further concerning the merits of the remaining
 EHART, JR. V. LAHAINA DIVERS, INC. 49

issues concerning § 30527 that the majority found
unnecessary to reach. 12
* * *
For the reasons I have set forth, I would dismiss this
appeal for lack of jurisdiction. To the extent that the
majority does otherwise, I respectfully dissent.

12
I agree with that majority’s holding that, to the extent we have
jurisdiction over this appeal, the district court did not err in concluding
that Plaintiff had failed to show, as a matter of law at the pleading stage,
that Defendants would be unable to establish facts that would defeat the
applicability of the distinct anti-liability-waiver provision in Hawaii
Revised Statutes § 663-1.54.