Although in the water, Mr. Borden was still attached to the boat as a passenger. Cf. Chervy v. Peninsular Oriental Steam Navigation Co., 243 F. Supp. 654, 654-55 (S.D.Cal. 1964), affirmed, 364 F.2d 908 (9th Cir. 1966). The Manta Ray had not put Mr. Borden off at his ultimate destination.

449 Fed.Appx. at 849 (reversing Johnson, 802 F.Supp.2d 1316, and the “purported policy rationale” it relied on in favor of § 30509's plain language). Because Chervy v. Peninsular and Oriental Steam Navigation Co., Ltd., 243 F.Supp. 654, 655 (S.D.Cal.1964) similarly relies on the public policy behind the predecessor statute to § 30509 rather than the statute's plain language, the Court declines to follow Chervy. See Johnson, 449 Fed.Appx. at 849 (holding that courts should focus on the plain language of § 30509 rather than the “purported policy rationale” behind it).

This argument, however, ignores the policy rationale behind the statute, which is that common carriers should not be able to secure immunity from liability for their own negligence in providing transportation and other essential functions of common carriers. See Chervy v. Peninsular Oriental Steam Navigation. Co., 243 F. Supp. 654, 655 (S.D. Cal. 1964) ("[T]he provisions of Title [ 46 U.S.C. § 30509] . . . were intended to apply as between common carrier and passengers."); Weade v. Dichmann, Wright Pugh, 337 U.S. 801, 807 (1949) ("The duty of a common carrier . . . is to transport for hire whoever employs it."); Liverpool G. W. Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 441 (1889) ("[T]he law does not allow a public carrier to abandon altogether his obligations to the public, and to stipulate for exemptions which are unreasonable and improper, amounting to an abnegation of the essential duties of his employment."); Shultz v. Florida Keys Dive Ctr, Inc., 224 F.3d 1269, 1271 (11th Cir. 2000) ("Congress enacted [§ 30509] . . . to put a stop to practices like providing [exculpatory clauses] on the reverse side of steamship tickets.") (internal quotations omitted); Chan v. Society Expeditions, Inc., 123 F.3d 1287, 1292 (9th Cir. 1997) ("[A]dmiralty law has generally prohibited carriers from limiting their liability for transporting p

This argument, however, ignores the policy rationale behind the statute, which is that common carriers should not be able to secure immunity from liability for their own negligence in providing transportation and other essential functions of common carriers. See Chervy v. Peninsular & Oriental Steam Navigation. Co., 243 F.Supp. 654, 655 (S.D.Cal.1964) (“[T]he provisions of Title [46 U.S.C. § 30509] ... were intended to apply as between common carrier and passengers.”); Weade v. Dichmann, Wright & Pugh, 337 U.S. 801, 807, 69 S.Ct. 1326, 93 L.Ed. 1704 (1949) (“The duty of a common carrier ... is to transport for hire whoever employs it.”); Liverpool & G.W. Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 441, 9 S.Ct. 469, 32 L.Ed. 788 (1889) (“[T]he law does not allow a public carrier to abandon altogether his obligations to the public, and to stipulate for exemptions which are unreasonable and improper, amounting to an abnegation of the essential duties of his employment.”); Shultz v. Florida Keys Dive Ctr., Inc., 224 F.3d 1269, 1271 (11th Cir.2000) (“Congress enacted [§ 30509] ... to put a stop to practices like providing [exculpatory clauses] on the reverse side of steamship tickets.”) (internal quotations omitted); Chan v. Society Expeditions, Inc., 123 F.3d 1287, 1292 (9th Cir.1997) ( “[A]dmiralty law has generally prohibited carrier

See Baltimore O.S.W. Ry. Co. v. Voigt, 176 U.S. 498, 513-14 (1900) (holding a messenger riding on train for his employer's purposes, and pursuant to a contract between his employer and the railway company, not a passenger). See also and c.f. Chervy v. Peninsular and Oriental Steam Nav. Co., 243 F. Supp. 654, 655 (S.D. Cal. 1964) (holding a visitor onboard not a passenger); Marks v. Home Fire and Marine Ins. Co. of Calif., 285 F. 959, 961 (App.D.C. 1923) (holding that a passenger is one who is carried by a conveyance that is held or offered for the use of the public). Hence, § 183C has no application to this case.

Tropical also argues that Section 183c does not apply because the carrier was acting outside the performance of its duty as a carrier. To support this proposition, Tropical cites Chervy v. Peninsular and Oriental Steam Navigation Co., 243 F. Supp. 654 (S.D.Cal. 1964), aff'd, 364 F.2d 908 (9th Cir. 1966). In Chervy, the court concluded that the injury occurred after the plaintiff's status as passengers had terminated.

The cases relied upon by the trial court are clearly distinguishable. Cf. Chervy v. Peninsular and Oriental Steam Navigation Co., 243 F. Supp. 654 (S.D.Cal. 1964) (persons injured were not passengers but "guests"; statutory provision held inapplicable), aff'd, 364 F.2d 908 (9th Cir. 1966), cert. denied, 385 U.S. 1007, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967); Lohman v. Royal Viking Lines, Inc., 1981 A.M.C. 1104 (D.Col. 1980) (suit based upon alleged negligence of others, not of the defendants). The principle applies equally to the breach of contract count, since negligence by a common carrier constitutes a breach of the contract of carriage.