Between ports: an admiralty decision in the Ninth Circuit presents an intriguing question of statutory interpretation

“It is not possible to step into the same river twice. …”

Plutarch (quoting Heraclitus)

Does a statute covering “vessel[s] transporting passengers between ports” include a vessel that leaves from and returns to the same port? 46 U.S.C. § 30527 (emphasis added).

In a recent admiralty case, Ehart v. Lahaina Divers, Inc., 92 F.4th 844 (9th Cir. 2024), the Ninth Circuit answered that question in the negative. Ehart features a spirited disagreement between the majority and the dissent regarding statutory interpretation. The majority held that the inclusion of “between” in the statutory language made clear that the statute was intended to cover only vessels that traveled from one port to a different port. Judge Collins, in dissent, argued that such a reading was contrary to the purpose of the statute and could produce absurd results.

Background

The case arose from tragic circumstances. Plaintiff and his wife “went on a chartered scuba snorkeling tour to Molokini crater,” “a crescent-shaped volcanic atoll located about 2.5 miles off the south coast of Maui.” Ehart, 92 F.4th at 846. Plaintiff and his wife had each signed a liability waiver prior to the trip. Id. During the snorkeling trip on a vessel named Dauntless, plaintiff’s wife apparently drifted away, and could not later be located. Id. at 847.

Plaintiff filed suit under admiralty jurisdiction in federal district court in Hawai’i, asserting wrongful death and other claims. Id. at 848. Defendants raised the signed waivers as an affirmative defense. Id. Plaintiff then “moved to strike the defense, arguing that the liability waiver signed by the plaintiff and his wife was void under 46 U.S.C. § 30527(a)” and a Hawaii state statute. Id. at 849.

Section 30527 “is a section of the Shipowner’s Limitation of Liability Act … that prohibits contractual provisions limiting liability for personal injury or death.” Id. at 850. Section 30527(a) provides, in relevant part, as follows:

“(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.”

46 U.S.C. § 30527(a) (emphasis added).

Defendants opposed the motion to strike, arguing that § 30527(a) did not apply because, inter alia, “the Dauntless was not ‘transporting passengers between ports in the United States . …’” Id.

The district court granted the plaintiff’s motion to strike and held the liability waivers void under § 30527(a). Id. The court “held that [§ 30527(a)] applie[d] to the Dauntless because the [ship] was conveying passengers from Lahaina Harbor to Molokini crater and back.” Id. The court “reasoned that § 30527 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.” Id. Defendants appealed.

The Majority’s Analysis of § 30527

The majority framed the question of statutory interpretation presented as “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.” Id. at 851.

The majority placed heavy emphasis on the statute’s use of the word “between,” reasoning that the use of “between” implied two separate things that are separated by a “between”:

“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 ‘between’ suggests that the plural ‘ports’ does not include the singular ‘port.’ … 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.”

Id. at 851 (citation omitted).

The majority took issue with the district court’s use of the dictionary definitions of “between,” but concluded that any review of the dictionary definitions supported the majority’s view that “between” necessarily required two different things or places separated by the “between”:

“the district court relied on three dictionary definitions of the word ‘between’: (1) ‘[i]n or through the position or interval separating’; (2) ‘[c]onnecting spatially’; and (3) ‘in the time, space, or interval that separates.’ 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 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,’ for example, ‘air service between Miami and Chicago.’ … This definition demonstrates that, in the transportation context, the word “between” necessarily implies at least two locations.”

Id. at 851-52 (citation omitted).

The majority also took issue with the district court’s conclusion that restricting the application of § 30527(a) would produce “absurd results” by, for example, including short ferry trips across rivers in its coverage, but not 10-hour sea excursions. Id. at 853. “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.” Id. (emphasis in original).

Notably, the district court, having concluded that “’the literal reading of a statutory term would compel an odd result,’” had turned to “evidence of congressional intent to lend the term its proper scope.’” Ehart v. Lahaina Divers Inc., No. 21-00475 SOM-KJM, 2022 WL 1472048, at *8 (D.Hawai’i May 10, 2022) (quoting Pub. Citizen v. U.S. Dep’t of Just., 491 U.S. 440, 454 (1989). The district court had relied on evidence from the House and Senate Reports suggesting a legislative intent that the statute have broad effect to support its reading of the statute as applying even when a ship leaves and returns to the same port. Id. at *12.

The majority in the Ninth Circuit did not look to congressional intent at all, presumably because the majority did not agree with the district court that a plain reading of the statute would produce absurd results. Ehart, 92 F.4th at 853.

The Dissent’s Analysis of § 30527

Judge Collins, in dissent, took issue with the majority’s assertion of jurisdiction over the interlocutory appeal, and the merits of the majority’s reading of § 30527.

Judge Collins first argued that “the majority’s view would effectively rewrite the statute as applying only to ‘transporting passengers between different ports in the United States.’” Id. at 865. Judge Collins noted that, “‘[h]ad Congress intended to impose such a limitation, it could easily have added that simple word. …’” Id. (Collins, J., dissenting).

Judge Collins targeted the core of the majority’s reasoning as to § 30527: namely, “that the requirement that the port of departure and the port of destination be different arises from the use of the word ‘between,’ which [the majority] says ‘implies more than one.’” Id. at 865. To counter this point, Judge Collins offered several thought-provoking counterexamples:

“[I]t 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 Finnegans 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. … [A]lthough ‘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. … And, in particular, there is nothing peculiar about saying that a passenger is being transported ‘between ports’ if he leaves the port of Lahaina, travels around the Molokini Crater, and returns to the port of Lahaina.”

Id. at 865 (emphasis in original).

These counterexamples are certainly intriguing, though one might gently object that they are somewhat idiosyncratic, relying, as they do, on (1) a situation where the starting line is the same as the finish line, (2) a book almost no one has ever actually finished [Note: I am joking], and (3) a quirk in Presidential history.

As to Judge Collins’s point about “time travel,” he appeared to be gesturing toward the more metaphysical point (to paraphrase Heraclitus) that one can never step foot in precisely the same port twice, presumably because of time’s arrow, etc. Cf. Blum, Harold F., “Time’s Arrow and Evolution” (1st ed. 1951) (exploring the relationship between the second law of thermodynamics (“time’s arrow”) and organic evolution).

Putting aside the Heraclitan view, Judge Collins’s point here also raises the question whether one can be “between” identical things. Can one be “between” the city of Los Angeles if one leaves the city for a day trip to Joshua Tree? Perhaps the expression makes more sense with a nautical trip, where a ship on a day excursion is “between ports” when it sails from and then later returns to the same port? Does “between” require a difference in identity of the things separated by the “between”? Cf. Jacques Derrida, “Différance,” in “Margins of Philosophy 3,” 3-27 (Alan Bass trans., 1982) (discussing the concept of “spacing” as necessary to “difference”).

Judge Collins further argued that “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.” Id. at 865 (quoting Antonin Scalia & Bryan Garner, “Reading the Law: The Interpretation of Legal Texts 63,” (2012).) Judge Collins agreed with the district court’s conclusion that “the … refusal to apply the statute to an excursion that returns to the same port would produce distinctions that make no rational sense.” Id. at 866. To illustrate this, he offers several hypotheticals that involve ships involved in essentially identical round trips, but with minor differences: for example, in one hypothetical, two ships leave the Port of Long Beach for day trips. When they return, one ship docks at a different berth at the Port of Long Beach; the other docks “at a nearby berth that is technically in the adjacent Port of Los Angeles.” “On the majority’s view,” Judge Collins argued, “the passengers on the second ship are protected by § 30527(a), while the passengers on the first ship are not.” Id.

Ultimately, the primary thrust of Judge Collins’s argument appears to be that the purpose of the statute is clear, and given that, in his view, a permissible reading of the statutory language would avoid absurd results, the court had an obligation to interpret the statute in a way that would produce coherent and defensible results: “[T]he self-evident objective of the statute … 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. … 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 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” Id. (citation omitted).

Conclusions

Erhart presents, to this reader’s view, an agonizingly difficult problem of statutory interpretation.

There is certainly force to the majority’s view that a plain-language reading of “between ports”—understanding “between” in its ordinary usage—strongly suggests that Congress intended the statute to cover only journeys between two different ports.

That said, Judge Collins’s dissent, and the district court decision below, make a forceful case that interpreting the statute as the majority does potentially produce irrational results that are difficult to justify. The district court sought to avoid absurd results by turning to the broad language of the legislative history and the statute’s purpose. Judge Collins sought to avoid absurd results by emphasizing the statutory purpose and demonstrating that the statutory language could fairly be read to include round trips from the same port.

And one imagines that, if a rational legislature were drafting the statute today, lengthy round-trip excursions like the one at issue in this case would be covered. As Judge Collins notes, the purpose of the statute appears to be to offer protections to passengers on ships that leave any U.S. port. The requirement that a ship touch two different ports—no matter how close or distant—to fall within the ambit of the statute seems quite arbitrary.

Judge Collins notes that Congress “is free to enact seemingly irrational statutes, subject to minimum constitutional limits.” Id. at 866. This case highlights the tension between that principle and the competing principle that courts must seek to avoid statutory constructions that produce absurd results. See E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 670 (9th Cir. 2021) (noting that the court “avoid[s] absurd results when interpreting statutes”); see also Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 305 U.S. 315, 333 (1938) (“[T]o construe statutes so as to avoid results glaringly absurd, has long been a judicial function.”).

If the potentially absurd results here are the result of inartful drafting, how much leeway does (or should) a court have in “correcting” what it sees as inartful drafting, by divining the true purpose of the statute? Cf. Michael C. Mikulic, “The Emergence of Contextually Constrained Purposivism,” 91 Notre Dame L. Rev. Online 128, 145-46 (April 2016) (expressing view that the Court in King v. Burwell 576 U.S. 473 (2015) “believe[d] it [was] acting as a faithful agent of Congress when it correct[ed] inartful drafting in light of a statute’s purpose”) (emphasis in original).

These are questions well above my pay grade as a state-court trial judge covered in Post-its and papercuts down here on the legal factory floor, but they are intriguing to consider.