A Maritime Employment Contract
By John Merriam
(This is a true story. Names have been changed for obvious reasons.)
I should have smelled trouble as soon as I learned that the cook had been a paralegal. Paralegals are worth their weight in gold. They also know enough to be dangerous.
My involvement in the case started with a phone call from the woman who taught me how to go to trial when I was an intern still in law school. “John, I just accepted a sexual harassment case for a woman named Alisa who worked on a fishing boat. She was a paralegal and decided to change careers. The captain wouldn’t take ‘no’ for an answer. I haven’t investigated her claim yet but she says she was also cheated on her pay—given less than she was guaranteed by her contract of employment. I was wondering if I could give her your name for a small wage claim?”
“Happy to help, Joan. Send me the file.”
I got a copy of Joan’s file the middle of April. Alisa was a 37-year-old woman living in Seattle who joined the F/V (fishing vessel) Sea Lion as cook almost exactly one year before. She’d signed an employment contract that guaranteed her the greater of $125 per day for every day she was aboard, or six percent of the money earned by the boat. Alisa’s duties were limited to cooking only—no deckhand work. ‘Pretty generous contract,’ I thought. The Sea Lion was a tender. That is, the boat ‘tended’ to other boats by bringing them supplies and taking their catch, then motored to factory ships or canneries on land and ‘tendered’ the fish for processing. The 100-foot boat carried a crew of five to tender for the salmon and herring seasons in Alaska the previous spring and summer. Wages on tendering boats are usually determined by the tonnage of fish delivered, with the crew typically paid a percentage of the boat’s earnings. Cooks on fishing boats, and sometimes engineers, are often paid a flat daily wage rather than a percentage because, unlike deckhands, their jobs are the same regardless of the amount of fish handled.
Joan had just filed a lawsuit for Alisa, in federal court, alleging she was the object of unwanted sexual overtures from the master of the Sea Lion, a man named Chip. It appeared from the file that Joan was the fourth lawyer consulted or retained by Alisa; I was to be the fifth. There was reference to a different lawsuit in state court, filed by a lawyer I didn’t know—one Drake Smith—for the wage claim only. I made note to get that file also.
Joan’s file contained copies of some early correspondence from Alisa to others while Alisa was still pro se—before she started lawyer-shopping. On September 29 she’d filed a Coast Guard lien against the F/V Sea Lion for $4,750 claimed due as seaman’s wages. Two weeks later, she wrote a letter to the manager of Fishermen’s Terminal in Seattle demanding the Sea Lion be detained. Alisa enclosed a copy of what she called the “lien judgment” and wrote that the vessel was not allowed to leave its berth until she was paid $4,750. “That’s a creative legal theory,” I thought. “Too bad it won’t work.” The same day Alisa wrote another letter, this one to Seafirst Bank, again enclosing the Coast Guard lien. She demanded that the Sea Lion’s account be frozen until the lien was lifted. Her demands were apparently ignored because she hired a lawyer a few weeks later.
I called Drake Smith. He said everything he knew about Alisa’s claim was in his file and that he would send it right over. We agreed to split any fee received in proportion to our respective work on the case. Drake said Alisa’s wage claim had merit but dodged my question about why he withdrew.
Drake’s file was delivered the next day. He’d filed suit two months before in King County Superior Court. The case was given a trial date the following year and assigned to a judge who would later be appointed to federal court. Drake claimed Alisa was due wages of $125 per day for the entire fishing trip, 112 days, but had only been paid for 78 days—a difference of $4,250, $500 less than Alisa’s Coast Guard lien. He alleged she was also due overtime wages for doing deckhand work rather than just cooking as called for by her contract. The complaint was filed in rem—against the vessel itself—and in personam, against the fishing company. ‘There’s no in rem jurisdiction for state courts,’ I silently observed. ‘Drake’s heart is in the right place but he doesn’t have much experience with maritime wage claims. The count for overtime wages cites the Fair Labor Standards Act and the count for double wages relies on 46 United States Code section 10313, the penalty wage statute for merchant seamen on foreign voyages. Neither applies to fishing boats. I wonder how much of the research was done by Alisa?’ The Complaint was only for breach of the employment contract. There was no mention of sexual harassment.
Next I looked at the correspondence section of Drake’s file. His first letter, dated November 17, advised the fishing company that he represented Alisa. But there were also copies of some earlier letters written by Alisa that I didn’t remember seeing in Joan’s file. More than a week after the fishing trip was over in August, Alisa wrote both owners of the Sea Lion that she “will forever cherish” the experience and looked forward to the next trip. Something must have happened after that because the next letter was sent to only one of the owners: “It’s unfortunate you misplaced your copy of the contract. Fortunately, I didn’t lose my copy.” Alisa demanded overtime pay pursuant to 29 United States Code sec. 201 et seq., the Fair Labor Standards Act.
The third letter from Alisa was addressed to a different lawyer she’d consulted. Alisa spoke of a “sexual assault” by Chip, the master, whom she described as “a sexual pervert.” The letter also accused Chip of interfering with Alisa’s efforts to use Costco for the development of a food distribution service to the commercial fishing fleet. ‘Strange. What’s that all about? Oh well, it’s not relevant to a wage claim.’ I nervously flipped to the next letter, wondering whom else my new client was angry at—and for what?
On October 10, Alisa wrote again to both owners of the Sea Lion. She claimed breach of her contract of employment and demanded $4,000 additional wages. There was no mention of sexual harassment.
The next letter from Alisa in Drake’s file was dated the same day he’d filed the state court lawsuit for wages, February 16. It was addressed to two lawyers she’d consulted about sexual harassment, apparently behind Drake’s back. It seemed one of the two lawyers had spoken to a former client about Alisa. The former client was Alisa’s erstwhile “friend” from days in Alcoholics Anonymous and claimed to be her one-time confidant. The woman told the two lawyers that Alisa spoke of having an affair with the captain of her fishing boat, was “head-over-heels,” and said that she and Chip were going to get together after the fishing trip was over. Alisa wrote the two lawyers she would come by to pick up her file later that day because they refused to take her case. She also denied that “any sexual contact had occurred . . . (and) I had no reason to believe that he was going to do what he did.” Alisa went on to disparage her former friend’s “relapse history” and call her a malicious liar. She said her one-time friend turned on her during the trip to Alaska, when the woman occupied Alisa’s house and turned it into a “flop for sexual deviants.” ‘Wow!’ I thought. ‘Joan’s a good lawyer, but she’s going to earn her contingent fee with facts like these.’
The final letter was written two weeks before I got Drake’s file. He wrote Alisa that he was withdrawing from the case and filing a lien for attorney fees. He was dismayed about a voicemail from her the day before regarding how the case was to be handled. “I note that you have a pending sexual harassment claim against the captain and owners of the vessel,” he wrote, “and that you told me you had had an intimate and sexual relationship with the captain during your service on this vessel.” When it came to sleeping with the skipper, it seemed Alisa was telling different facts to different lawyers. One of the two lawyers Alisa consulted about sexual harassment had called Drake. Drake stated in his letter that he’d been retained to pursue only wages, but now she wanted more. He said her wage claim had merit but he had no experience with sexual harassment cases.
Drake’s Notice of Intent to Withdraw, along with a lien for attorney fees in the amount of $3,223.21, was dated April 4—the same day he received the voicemail from Alisa.
I filed a Notice of Appearance in King County Superior Court. ‘I don’t want to wait until July of next year to try this case,’ I thought after looking at the file. ‘Arbitration would be a lot quicker. There’s no way Drake could have claimed more than $35,000, even with Alisa doing his research about wage penalties.’ $35,000 was the jurisdictional limit for cases to be arbitrated, by lawyers informally, rather than tried by judges in courtrooms. I next filed a Statement of Arbitrability so the case would be transferred to the Arbitration Department of Superior Court. Then I left a voicemail at Joan’s office saying I was up-to-speed on the wage case and asking her help to put me in contact with Alisa for a meeting.
Alisa came to my office one morning in late April. She was a short brunette, slightly overweight but not unattractive. We talked about her contract of employment for the F/V Sea Lion. She told me that in fact there were duplicate originals of the contract. Alisa had taken the contract home after being offered the job. She conformed the original to verbal promises made by one of the owners and brought it back to the Sea Lion for the owner to initial Alisa’s handwritten changes to the printed terms. Then she and the owner both signed the duplicate contracts in haste as the Sea Lion cast off. “I made a photocopy the first time we hit port and mailed my original of the contract to a former friend for safekeeping. She destroyed it out of spite when I asked her to pay for the damage done to my house while I was in Alaska. The fishing company lost their copy of my contract. If they show you one, it’s a forgery.” She went on to describe what a bastard Chip was. I listened only long enough to get facts establishing friction with the captain—a plausible motive for cheating Alisa on her pay—then stopped her. ‘Anything more is Joan’s problem,’ I said to myself. I told Alisa there were no guarantees when it came to trial work but that I would do what I could. Then I handed her a fee agreement and explained I would be taking one-third, off the top, from any money I won for her. I said that lawyer rules in this state made her responsible for my out-of-pocket expenses—win, lose or draw. Alisa signed the fee agreement and our meeting concluded.
It seemed to me that Alisa had a legitimate beef about her wages based on the contract of employment. I wouldn’t make book on the sexual harassment claim, but I wasn’t Joan.
There was no Answer to the Complaint that I could find in Drake’s file. I left a courtesy phone message for opposing counsel, Jeff Brown, then filed a motion that the fishing company be held in default for not answering Alisa’s lawsuit.
Jeff Brown called me. He promised an Answer soon, then talked to me like I was his new “buddy.” Jeff told me that it was Alisa who had altered the contract. $125 per day was payable only when the Sea Lion was working hauling fish and that her pay did not start April 25 of last year, like she claimed, when the vessel left port for Alaska. He said Alisa’s duties included helping out on deck like everybody else. I responded, “That’s what courts are for, to see who’s telling the truth.”
I received an Answer from Jeff Brown the following day. The fishing company must have “found” its copy of the original employment contract because the allegations were very specific. The Answer accused Alisa of forgery and fraud. I called Jeff and asked for his version of the original.
The next day I sat down at my desk with the two versions of the contract in front of me. Both bore the initials of Alisa and one of the owners next to those paragraphs where handwritten changes had been made to the printed language. The fishing company’s contract subtly differed from Alisa’s in the paragraph about compensation, in that her $125/day wage guarantee did not start until the Sea Lion was actually tendering fish. There was a radical difference between the two contracts at paragraph 11. The owner’s version was nothing more than a printed severability clause, with no initials. Alisa’s version bore a handwritten addition: “Cook only. 3 meals/day @ $125 day lv Seattle dock to return to Seattle dock.” The initials of Alisa and one of the owners followed the addition. It looked like the key to the case was paragraph 11. Specifically, did the owner really initial the handwritten addition?
I first called my client, then opposing counsel. I got them both to agree that we would hire a neutral handwriting expert to examine the two contracts, and that the “loser” would pay the expert’s fee.
I’d never needed a handwriting expert before and didn’t know whom to contact. After asking around, I put a call in to a Josephine Walker. We agreed on her fee of a flat $400. With a smoky voice she told me to send the questioned documents. She then said it would be best if she announced her conclusions at a meeting of all concerned because she was acting, essentially, as a referee. I agreed to arrange such a meeting.
When I told Joan what I was up to, she insisted that her paralegal attend the meeting because the outcome would reflect on Alisa’s credibility and have bearing on the sexual harassment case in federal court.
The meeting was arranged to take place at Jeff Brown’s office. I got a ride that day from Joan’s paralegal, Paul, because I took the bus to work and didn’t have a car. When we arrived, Paul walked into the conference room to join the others while I tarried to look around the waiting area—I hate surprises—before strolling in.
The scene could have been from an episode of the old Alfred Hitchcock TV show: A matronly Josephine Walker presided at the head of a conference table. Paul sat to her left looking like a construction worker who’d been stuffed into a suit. Alisa sat next to him, rather brightly made up. On the expert’s right was Jeff Brown, small and scholarly-looking. ‘I bet he got beat up a lot in junior high school,’ I thought as I sat down next to my client. Neither of the boat owners was there.
Josephine Walker spoke: “I have examined the ‘original’ employment contract as well as the ‘photocopy’ (from Alisa). It is my professional opinion that the original document listed above has been tampered with/changed in order to produce the questioned document, listed above, which is a photocopy.”
There was stunned silence. Alisa’s eyes glinted like steel.
“I’ve got to get back to the office.” Paul broke the ice and stood up to leave. I told Alisa that I had to catch a ride with Paul but that I would call her.
Outside, the handwriting expert hurried after me as I walked toward Paul’s car. She glanced behind her back then whispered, “This is one of the most skillful forgeries I’ve ever seen.”
The written report arrived a few days later. Ms. Walker used a lot of jargon and detail to echo what she’d announced in person: Alisa had transposed the owner’s initials onto a paragraph of the employment contract that she had added to by way of photocopy. ‘I have an ethical duty to withdraw from this case,’ I thought, ‘but how can I get out without Alisa accusing me of sexual harassment? The door to my office was closed when I met with her. If I withdraw now I’ll be like a duck floating in Alisa’s pond during hunting season.’ The intercom interrupted my paranoid ruminations as my assistant announced a phone call.
“That Walker woman was paid off by the fishing company!” It was Alisa. “I want a copy of her report.”
Josephine Walker worked out of her house and her home address was on the letterhead of the report my client was demanding. I wasn’t sure what Alisa was capable of and hemmed and hawed while I tried to gather my thoughts. As a lawyer, I have a duty to provide my clients with any and all papers they request relating to their cases. I also have a duty to avoid giving assistance to my clients in the commission of crime—like harming my experts, for good example. I couldn’t reconcile my conflicting obligations, and finally blurted: “I’ll send you a copy if you pay me the $400 it cost.” I knew Alisa claimed poverty. The conversation got acrimonious. She finally agreed to pay me $400 in exchange for Josephine Walker’s report.
As it turned out, Alisa never did send me $400.
The rational side of my brain eventually prevailed about withdrawing from the case. On August 23, I dictated a Notice of Intent to Withdraw and a letter to Alisa. In the letter, I stated that “we” could no longer expect to win the case because of the handwriting expert. I said her conclusions, right or wrong, would be considered by the arbitrator and would mortally wound our case. I said nothing about lying or forgery.
I also dictated an attorney lien on the case for my expenses only, $520.72, mostly for Josephine Walker. I claimed nothing for my time and dictated a request that a copy of the lien be sent to Drake Smith. Then I took a deep breath and walked to my assistant’s desk to hand her the mini-cassette with my dictation. ‘Here we go. . .,’ I thought while exhaling. My assistant typed up the letter to Alisa, along with the Notice and lien, and sent it out in the afternoon mail.
Two days later my mail included a letter from Alisa. ‘There’s no way she could have received my letter and responded so quickly,’ I thought while noticing my hands trembling. I slit the envelope.
“Your services are terminated,” Alisa wrote. “I shall be at your office on August 27 to pick up my file.” My hands stopped shaking. She’d fired me before learning I was going to quit.
Alisa did pick up her file on August 27, and I never saw her again. I didn’t give her Josephine Walker’s report.
Joan told me that the sexual harassment case fizzled. That fall a Notice of Appointment of Arbitrator, addressed to Alisa, was delivered to my office. That meant no other lawyer had appeared for her and she was again pro se. I don’t know what happened at arbitration, if it even occurred.
Six months later I received a letter from a lawyer asking about the case on Alisa’s behalf. I wrote back offering him any information I had. The lawyer never responded.
I assume Alisa went back to work, but I don’t know if she returned to a fishing boat or a law office.
John Merriam is a former merchant seaman who now works as a lawyer representing all types of seamen on wage and injury claims.