b'LEGAL MATTERS LEGAL MATTERSPVA Weighs In On WaiversSTEVEN E. BERS, ESQ. // PVA GENERAL COUNSELO n Nov. 1, 2022, the Passenger Vesseldistinct waiver which had been signed by themembers. PVAs general counsel was directed Association filed a letter to the U.S.missing snorkeler. The issue before the courtto file a letter, making PVAs position heard Ninth Circuit Court of Appeals, inwas whether the waiver was enforceable in viewin support of the enforcement of waivers, as furtherance of the interest of many members,of a Federal statute, 46 USC Section 30509.involved in the case. in a case arising in the U.S. District Court forThe Hawaii U.S. District Court concluded, as the District of Hawaii, challenging the enforce- a preliminary matter before the case was tried, ability of liability waivers for vessels departingthat the waiver was unenforceable. The vesselEven though not and returning to the same port. The case arisesoperator filed an immediate interlocutory ap-from an unfortunate incident: a vessel excur- peal (an appeal filed on a single matter before aa PVA member, sion in which a passenger failed to return fromcase has been fully tried) to the U.S. Court of snorkeling and was never found. Appeals for the Ninth Circuit.PVA identified the Aclaimwasbroughtagainstthenon-PVAPVAwasapproachedbythevesselopera- case issuethe vesseloperatorclaimingthatthevesselwastor. Even though not a PVA member, PVA negligentinmaintainingoversightoftheidentified the case issuethe enforceabilityenforceability of a activity. The vessel operator sought to defendofaliabilitywaiverasoneneverthelessliability waiveras againstliabilitybyreferencingaclearandlikely to have an impact upon certain PVAone neverthelesslikely to have an impact upon certain PVA members. The enforcement question turns on the inter-pretation of a Federal Statute, 46 USC Section 30509, which reads in relevant part:The owner, master, manager, or agent ofa vessel transporting passengers between portsintheUnitedStates[emphasis added], or between a port in the United States and a port in a foreign country, may not include in a regulation or contract a provisionlimitingtheliabilityofthe owner,master,oragentforpersonal injury or death caused by the negligence or fault of the owner or the owners em-ployees or agents. The key interpretive question involved in the case focused on the language of the Statute, between ports in the United States. Does that prohibition apply to an excursion vessel that leaves and returns to the same port?E X2 0B 1 9I After a review of legislative history, the Hawaii Court negated the waiver on the basis that the WINNER statute was enacted with some reference to an FOGHORN 32'