Rainbow Management Group, Ltd. v. Atlantis Submarines Hawaii, L.P.

158 F.R.D. 656 (D. Haw. 1994)


D operates commercial submarine tours offshore at Waikiki Beach. P was under contract with D to transport passengers back and forth from the shore to the submarine. P's vessel, Elua, was ferrying passengers from the shore to D's. This required the vessels to be secured to each other with lines and with a ramp placed between the two vessels for the passengers to walk on. That same day, D1 and four passengers were aboard D1's vessel, the Boston Whaler, preparing to scuba dive. The Boston Whaler was moored at D reef approximately 200 yards from where the P-D vessels were beginning to transfer passengers. The Elua collided with the Boston Whaler. The Boston Whaler was destroyed, and several of its passengers suffered personal injuries. The Elua was damaged and repaired. George Martin Berry, a passenger, was injured as a result of the collision. Berry and his wife sued P and D as co-defendants on July 22, 1993. The complaint alleged that both P and D were negligent in the operation of their vessels. D filed a cross-claim against P and a third-party complaint against D1. Its cross-claim against P stated two counts, one for breach of contract, and the second for contribution and indemnity. P filed a cross-claim against D and a third-party complaint against D1. P sought contribution and indemnity, denied any wrongdoing, and prayed for joint and several liability against D and D1. However, P did not assert its claim for damage to or loss of use of the Elua resulting from the January 27, 1992 collision. D1 filed counterclaims alleging that P and D had been negligent and were responsible for damage to his vessel. D1 also denied responsibility for plaintiff Berry's claims. P answered D1'scounterclaim, denying liability for D1's losses and asserting the right to contribution and indemnity. P again failed to assert its Elua damage claim. P filed a second suit (the subject of the instant summary judgment motion). P sought recovery for damage to the Elua and loss of its use resulting from the collision of June 27, 1992. P then moved to consolidate its suit with the still-pending Berry case. That motion was denied because of delay and prejudice to the opposing parties. D and P have settled with the parties in the Berry case. In addition, P has settled with D1 in the instant case. Thus, the only remaining controversy is between P, and D. D asserts that P's claim is a compulsory counterclaim that P should have asserted in a previous lawsuit by one of the injured Boston Whaler passengers against D, D1, and P.