A Challenge To Young Lawyers Practicing Maritime Law

By John Merriam

The maritime law is fashioned mostly by stare decisis – case law.  I’ve spent my 40-year career trying to shape that law in favor of seamen.  I’m 70 now and there are still several areas of the law in which favorable precedent is needed.  I have no plans to retire, but I can’t last forever.  I need someone to take up where I leave off if I can’t or don’t establish case law that addresses the issues below.

1. Seaman Denied Jones Act Jury Trial Because Not A U.S. Citizen

A federal judge in Seattle enforced the arbitration clause in a contract of employment requiring the seaman, a citizen of Mali, to arbitrate his injury claim rather than have a jury trial.  The seaman was injured while working aboard a U.S.-flagged factory trawler.  The judge based his decision on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C. sec.201 -208 (1970).  One of the requirements of that Convention to enforce arbitration clauses is that one of the parties to the agreement is not an American citizen. Earlier cases considered the ‘citizenship’ element to mean the citizenship of the vessel owner, not the seaman.  Injured seamen on U.S.-flagged vessels have previously never been forced into arbitration; only seamen injured on foreign-flagged ships have.  Non-U.S.-citizen seamen injured aboard U.S. vessels have been entitled to jury trials since the Jones Act was enacted 100 years ago.  46 U.S.C. sec. 30104.  The arbitration Convention does not trump the Jones Act!

If allowed to stand, this case creates dangerous precedent.  The ruling could affect the rights of the multitude of immigrants with green cards working aboard boats in the Alaska, Washington, and other fisheries.  An appeal of the trial court’s decision was filed in the Ninth Circuit.  Diarra v. Coastal Villages Pollock, No. 22-35202 (2022).  Unfortunately, the client was desperate and accepted a low-ball settlement offer, resulting in the appeal being dismissed before briefing.

The case was discussed in the June 2020 issue of Trial News, “Seaman on U.S.-Flagged Vessel Forced to Arbitrate Jones Act Claim Because Not a U.S. Citizen”.

2. Pay Practices Aboard Fish Factory Ships Violate Fair Labor Standards Act

Processors working aboard factory trawlers, boats that catch the fish they process, get paid a small percentage of the sale proceeds – a crewshare, or “lay”.  That means that processors don’t make any money when the factory trawler is not catching fish, which seems fair because the processors make a lot of money when there is a lot of fish to process.  Pure factory ships, on the other hand, don’t catch fish and rely on catcher boats to deliver them fish to process.  Those factory ships are subject to the Fair Labor Standards Act, 29 U.S.C. sec. 201 et seq., and must pay their processors hourly minimum and overtime wages.  I assert that those processors are entitled to be paid for their entire 16-hour shifts whether there’s fish to process or not, and whether they’re working or not.  The processors sleep in quarters smaller than a prison cell, aren’t allowed to go ashore, and can be summoned to work when fish are delivered any time during their 16-hour shifts.  The fishing industry disagrees.

This hasn’t been a problem until recently because most companies give their processors busy work – like cleaning the factory – when there is no fish to process, in order to keep them working and getting paid.  In 2019, this practitioner started receiving complaints about a fish factory ship called the M/V Cape Grieg, operated by E&E Foods out of Seattle.  During periods with no fish, the processors on the Cape Grieg sometimes went weeks at a time with little or no work, and little or no pay.  “No fish, no pay” one processor was told by a foreman.  This all came after the processors – mostly immigrants or Latinos from border towns in California and Arizona – had been promised big bucks by recruiters for working 16 hours/day, 7 days/week.

Although some were given a few hours of work now and then to perform tasks in the factory area of the boat, most of the time the processors sat idle, trapped on the Cape Grieg.  There were reports of arguments and assaults, and talk of beating up the supervisor.  Those who quit were dropped off in remote ports with no money and had to figure out how to pay their way home from Alaska.

There are no cases involving vessels subject to the Fair Labor Standards Act about whether wages are required when seamen are offered no work to perform and can’t go ashore when not working.  There are plenty of cases involving workplaces ashore, however.  Workers on land are entitled to be paid for time spent at the worksite when they are “engaged to wait” for work, as opposed to “waiting to be engaged” for work when, ostensibly, they can take other jobs or run errands.  See, 29 C.F.R. sec. 785.14.

A lawsuit is currently being litigated against E&E Foods claiming violation the Fair Labor Standards Act.  It was brought as a collective action, per 29 U.S.C. sec. 2016(b), for processors who worked aboard the Cape Grieg during the 2018-2021 summer salmon seasons.  Gutierrez et al. v. E&E Foods et al., No. 2:21-cv-00682(RSM)LK (W.D. Wash.).  (In a collective action the processors have to opt in to the lawsuit, as opposed to class actions where plaintiffs have to opt out.)  Daniel Johnson of Breskin Johnson Townsend is taking the lead as co-counsel in the case.

The issue is discussed in the February 2020 issue of Trial News, “No Fish, No Pay Practices Violate Fair Labor Standards Act”.

3. There Are No Federal Penalties For Cheating Commercial Fishermen Out Of Their Wages

This issue has been the subject of three Trial News articles:  “Are Punitive Damages Available in Wage Claims for Fishermen?” (December 2012); “Trial of a Maritime Case in Idaho” (December 2019), and “Certiorari Denied . . . Down in Flames after Seven Years” (January 2021).

I won’t belabor my arguments about why punitive damages should fill the gap where no federal law penalties exist when commercial fishermen get cheated on their wages.  The poorly reasoned and basically indefensible Ninth Circuit decision denying that relief was unpublished.  Dunn v. Hatch, 792 Fed. Appx. 449, cert. denied, 2020 U.S. LEXIS 4003 (2020).  Unpublished Ninth Circuit decisions cannot be cited as precedent.  FRAP 36-3.

This issue is begging for another test case(s).

4. Fishermen Can Be Fired Without Cause During Their Contractual Period Of Employment

Enacted in 1988, 46 U.S.C. sec. 10601 requires that employment contracts for commercial fishermen include a “period of effectiveness”.  It seems obvious to me that the statute abrogated the employment-at-will doctrine (whereby workers can be fired at any time for any reason, or no reason at all) and that ‘cause’ – a good reason – is required to fire a fisherman during the period of effectiveness.  To hold otherwise would render the ‘period’ meaningless.  So far, no court has agreed with me.

In 2013, in an unreported decision, a local federal judge ruled against me on this issue.  My motion for interlocutory appeal to the Ninth Circuit was denied and the case settled.  Rector v. E&E Foods, No. C12-1541, 2013 U.S. Dist. LEXIS 119661 (W.D. Wash.).  I filed the next wrongful discharge case for a fisherman in King County Superior Court.  It was dismissed on summary judgment, and I appealed to Division I.

During oral argument at the state Court of Appeals, the three-judge panel seemed visibly uncomfortable, even offended, that I was asking them to set precedent on an issue of federal maritime law.  They took the easy way out, holding that 10601 did not change the “historical rule of at will employment”.  The state Supreme Court wouldn’t touch the issue and denied review.  McPherson v. Fishing Company of Alaska, 94 Wn.App. 268, rev. denied, 189 Wn.2d 1021 (2017).   

This issue has hit a dead end in Washington state courts.  Future test cases should be filed in federal court.  There are still no reported federal decisions on point.  Even though the Rector decision, supra, was unreported, it is unlikely that judges at the district court level will rule against one of their own.  That means that reason cannot be expected to prevail, if at all, until a test case reaches the Ninth Circuit.

The effect of 46 U.S.C. sec. 10601 is discussed in the March 2014 issue of Trial News, “Is Employment of Fishermen ‘At Will’, or is Just Cause Required for Discharge?”.

5. A Seaman’s Mortgage Should Be Used To Calculate Maintenance Rate

Seamen recuperating from illness or injury are entitled to a reasonable rate of maintenance to pay for food and lodging.  ‘Reasonableness’ is determined by comparing what others in the locality pay for those basic living expenses.  For seamen with a mortgage, should the amount of that mortgage be compared to rents in the locality, or to other mortgages?  That question received an unfortunate answer by two federal trial judges.

Wilcox v. Hamilton Construction, involved a seaman living in a small, modest house with a mortgage.  In a motion to increase the rate of maintenance to cover the mortgage, I submitted expert testimony that my client’s mortgage was low for the locality where he lived.  Instead of challenging the seaman’s mortgage as unreasonable, the vessel owner submitted evidence that the seaman could live more cheaply in the area by renting an apartment.  The judge agreed with the vessel owner and denied my motion.  2019 A.M.C. 1867, 2019 U.S. Dist. LEXIS 101910 (W.D. Wash. 2019), clarified on reconsideration, 2019 A.M.C.1871, 2019 U.S. Dist. LEXIS 185311 (Minute Order of 7/2/19); accord, Ramirez v. Winter Blues, 2020 U.S. LEXIS 169426 (D. Ak. 2020).  Both cases settled and could not be appealed.

Should a seaman lose his home as the result of illness or injury simply because his or her mortgage is more than what the seaman would pay to rent an apartment?  The two federal district court decisions cited above are wrong!  This issue needs to be corrected by the Ninth Circuit before more courts follow this erroneous precedent.

This issue is discussed in two Trial News articles:  “When Setting Rates of Maintenance for Seamen with a House and Family, Should the Entire Mortgage Payment be taken into Account?” (April 2014); “Setting Rates of Maintenance:  How to determine ‘reasonableness’ in the home mortgage context” (January 2022) (inadvertently republished in the July/August 2022 issue).

6. Child Support Should Not Be Deducted From Maintenance

This position is not politically correct and has gotten me into trouble at home.  I contend that maintenance is not “income” under the general maritime law        and should not be subject to garnishment to pay child support.  Rather, maintenance is a substitute for the free room and board the seaman would have gotten on the vessel, but for the seaman’s illness or injury.  Deducting child support from maintenance makes no more sense than taking away part of someone’s food stamps to pay child support.

A seaman injured in Alaska owed child support to the state of Texas where he lived.  The seaman filed a Jones Act claim in federal court, here in Seattle, and received maintenance at the contractual rate of $20/day.  The Attorney General of Texas served the fishing company with a child support lien, and it started deducting half the seaman’s maintenance, $10/day, for child support.  That left the seaman $10/day to live on, not nearly enough to pay rent, food and utilities even 15 years ago in Texas.  Along with co-counsel, Gordon Webb, I filed a motion seeking a declaration that maintenance was not income as a matter of federal maritime law and should not be reduced under the authority of a Texas statute.  The judge assigned to the case denied the motion, ruling that maintenance was subject to garnishment under the state law of Texas.

The injury claim settled, and we appealed the ruling on child support only.  The Ninth Circuit affirmed, holding that state law, not federal maritime law, should determine the nature of maintenance.  As a matter of Texas law maintenance constituted “resources”, it held, and was thus subject to garnishment for child support.  To get to this result, the Ninth Circuit equated maintenance with wages.  Aguilera v. F/T Alaska Juris et al., infra.

I have no problem with garnishment of a seaman’s actual wages for child support.  But attaching maintenance to satisfy a child support lien serves only to create another person – the destitute seaman – who qualifies for public assistance, while doing little (an extra $10/day!) to get the dependent child off public assistance.  Regardless of one’s political or social views, this makes no sense!

In its rush to reach a politically correct result, the Ninth Circuit refused to recognize the fundamental difference between maintenance and wages.  Nevertheless, the Aguilera case is now the law in the Ninth Circuit, for federal courts at least, and we are stuck with it.  However, strictly construed, the Aguilera decision is limited to Texas and does not directly control child support orders from any other state, whether located in the Ninth Circuit or elsewhere.  In Washington, for example, only “income” can be attached to satisfy child support liens.  Income is defined at RCW 26.19.071(3).  There is no mention of seamen, only “spousal maintenance”.  Excluded from the definition of income is Social Security disability payments, general assistance (state welfare payments), “temporary assistance for needy families”, and food stamps.  Id. at RCW 26.19.071(4).

What is needed, and what I’m waiting for, is a test case with facts similar to the Aguilera case for a seaman subject to a child support lien from the state of Washington.  It should be brought in a Superior Court in Washington and should seek a declaration that a seaman’s maintenance does not constitute “income” as a matter of state law.  Hopefully, courts in this state will be more rational in interpreting Washington statutes than was the Ninth Circuit in interpreting Texas law.

The issue is discussed in two Trial News articles: “The Effect of Maintenance Payments on 1) Unemployment Compensation, and 2) Child Support Obligations” (May 2008); and “The Status of Maintenance (for seamen) and Child Support in Washington after Aguilera v. F/T Alaska Juris, 535 F.3d 1007, 2008 A.M.C. 1845 (9th Cir. 2009)” (Trial News October 2009).

Other than the case discussed in section #2 above, none of these issues are being litigated.  Test cases are needed for all the others.  Who will accept this challenge?

Eagle John Merriam is a former merchant seaman, now a sole practitioner at Seattle’s Fishermen’s Terminal where he restricts his practice to the representation of claimants for maritime wages and injury.