Sailing the Seas of Maritime Law (In 35 Years of Practice)
By John Merriam
After 12 years in the merchant marine – while going to school between ships – I changed careers in 1982, switching from merchant seaman to lawyer. I’ve represented all types of seamen in wage and injury claims ever since. The maritime law is largely judge-made – stare decisis – from written decisions in cases brought in the various courts. (When suing for wages or injury, seamen may choose either state or federal court.) I like to think that the cases I’ve litigated and appealed have changed the maritime law (not always for the good). I claim credit for more than 20 significant, reported decisions (and almost 50 articles published in Trial News) over the past 35 years. What follows is a summary of those cases that have set precedent.
I went to work as an (Admission to Practice) Rule 9 intern immediately after taking the 1982 summer bar exam. My new boss told me to sue Ronald Reagan for cutting off free medical care for seamen by shutting down the U.S. Public Health Service Hospitals around the country. (Formerly known as the Marine Hospitals, Seattle’s U.S.P.H.S. Hospital is/was the imposing structure on Beacon Hill later occupied for a time by Amazon.) I brought a class action against Ronald Reagan on behalf of an estimated 5,000 permanently disabled seamen. The case was assigned to federal Judge Donald Voorhees. Judge Voorhees certified the class of seamen and then dismissed the case on summary judgment. I appealed. Unsuccessful in the Ninth Circuit, I petitioned for certiorari to the U.S. Supreme Court. Jones v. Reagan, 748 F.2d 1331 (9th Cir. 1984), cert. denied, 472 U.S. 1029 (1985). Even though Judge Voorhees’ dismissal of the case was affirmed, some good dicta came out of the Ninth Circuit’s decision, arguably supporting the right to medical care for life for permanently disabled seamen, but from ship owners, rather than the government. The case inspired two Trial News articles: “Do Seamen and Fishermen Injured in the Service of the Ship have the Right to Medical Care for Life?” (January 1994), and “Suing Ronald Reagan…” (April 2010). My new boss had a lot of Jones Act cases, probably too many for a solo practitioner, and had been missing some deadlines. I rapidly became proficient in arguing why limitation periods should be tolled, extended, or did not apply. In one case for a 1979 injury, my boss had missed the three-year limitation period by 26 days. I persuaded federal Judge William Beeks that 46 U.S.C. 763(a) (enacted in 1980, imposing a three-year limitation on unseaworthiness claims previously governed by laches – i.e., inexcusable delay in filing suit plus prejudice to the vessel owner) should not be applied retroactively. Nasser v. Hudson Waterways, 563 F.Supp. 88 (W.D. Wash. 1983). Later, in another case, I persuaded federal Judge William Dwyer that the elastic time limit of laches should continue to govern maintenance-and-cure claims rather than the inflexible three-year time-bar of 46 U.S.C. §763(a). Lightfoot v. Arctic Storm, 1994 A.M.C. 2460 (W.D. Wash. 1994).
I collaborated with the International Transport Workers Federation in the 1980s. Among other endeavors, the ITWF monitors wages and working conditions for seamen employed aboard ships flying flags-of-convenience from third-world countries – e.g., Liberia and Panama – to avoid safety standards and wage scales imposed by countries where the beneficial owners reside – like the U.S. and Japan. Seamen on these ships were also from third-world countries, like the Philippines or Indonesia, and paid unconscionably low wages. If the wages were below the minimum mandated by international norms, the ITWF would get sympathetic unions in Western democracies to throw picket lines around the offending vessel when she came into port and prevent her from working cargo. To get around the threat of boycotts and picket lines, some vessels were using a double set of books for the wages paid to their seamen. One set of books listing higher wage rates was shown to ITWF Inspectors. The other set of books listed what the seamen were actually paid. The M/V Hira II, a freighter flying the Panamanian flag, put into Seattle in 1989. The crew was Filipino; the owner was a Panamanian corporation, but the charterer (and no doubt the beneficial owner) was the Japanese corporation NYK. The seamen belonged to a union in the Philippines with a collective bargaining agreement that set forth an acceptable rate of wages. The ITF alerted me that the Hira II was using a double set of books. To get a berth on the Hira II, the seamen had to sign individual contracts of employment with far lower rates of pay than those in the collective bargaining agreement. I filed suit in federal court and had the Marshal arrest the Hira II. NYK bonded the vessel out and she steamed for Hong Kong where the Filipino crew was discharged. Judge Dwyer ruled that federal courts have mandatory jurisdiction over wage claims brought by foreign seamen in a U.S. port, even when the seamen are not discharged from the vessel in that port. Galon v. M/V Hira II, 1990 A.M.C. 342 (W.D. Wash. 1989). The next case from the ITF that I was involved in effectively reversed Judge Dwyer’s ruling.
The M/V Pine Forest was a freighter bringing logs from the U.S. to Japan. She flew the flag of Vanuatu, a group of tiny islands in the South Pacific, but had Japanese beneficial owners. Some in the Filipino crew risked their jobs to complain to an ITWF Inspector that they had not been paid the wages stated in the ITWF-condoned collective bargaining agreement. The Inspector enlisted the aid of a silver-tongued lawyer from Baton Rouge, Louisiana named Jerry Dodson to seize the ship for keeping double books. Dodson filed suit and had the Pine Forest arrested by the Marshal in Tacoma. I was retained as local counsel. The case was assigned to federal Judge Jack Tanner. Following a bench trial, Judge Tanner awarded $32 million in wage penalties and other relief, a verdict hailed by the media as the largest award of wages to seamen in the history of the world! (Jerry Dodson tried the case and I can’t take any credit for the verdict. By the same token, I was not involved in the subsequent appeal (see infra) and won’t take any of the blame for reversal by the Ninth Circuit.) NYK appealed. The U.S. Court of Appeals took back almost everything Judge Tanner had awarded with the exception of $400,000 in attorney fees. The appellate court held that foreign seamen cannot avail themselves of U.S. wage penalty statutes unless they are discharged from their vessel in a U.S. port, which was not the case for seamen on the Pine Forest. Raby v. M/V Pine Forest, 1990 A.M.C. 2441 (W.D. Wash. 1990), modified sub nom., Su v. Southern Aster, 978 F.2d 462 (9th Cir. 1992). That decision put me out of business when it came to representing foreign seamen on wage claims. How can a foreign seaman get off a ship in a U.S. port when he or she has no immigration status here?
The 1990s saw a continued shrinking of the U.S. merchant marine as more and more freight was carried by ships flying flags-of-convenience. The fishing industry was booming, however, after the so-called Exclusive Economic Zone extended the limit to 200 miles off shore. Only U.S.-flagged vessels could fish within that limit, extending 200 miles off the coastline of Alaska as well as the continental U.S. My clientele changed from mostly merchant seamen to mostly commercial fishermen, including processors aboard fish factory ships. Factory workers on ships are “seamen” in the eyes of the law when they become ill or get injured.
In 1992, the marine insurance defense firm with the lion’s share of injury claims went to the dark side, in my opinion, and made a conscious policy decision to be “difficult” when defending Jones Act cases. Discovery abuse and sleazy litigation tactics became rampant. See “Litigating in the Bilge” (Trial News May 1994). I was appointed chairman of the Maritime Section of the Washington State Trial Lawyers Association. (now known as the Washington State Association for Justice) for the 1993-94 term, and declared war on the offending firm. Pitched battle ensued, with bar complaints, motion practice, and even a collective meeting/confrontation between the Maritime Section and representatives of the insurance defense firm. The firm agreed to such a meeting only on the condition that I withdraw my request for Judge Dwyer to order the convening of, and to preside over, such a meeting to discuss discovery abuse. Nothing was resolved. One of the grudge-match cases involving relatively small damages went all the way to the state Supreme Court. Miller v. Arctic Alaska Fisheries, 83 Wash.App.255, rev’d, 133 Wn.2d 250 (1997). The tactics used in that case are described in a Trial News article “Litigation or War of Attrition?” (February 1998). As discussed in the article, I contend the Supreme Court took liberties with logic and the law to affirm the jury’s verdict at trial, going to extraordinary lengths to prevent remand and a repeat of scorched-earth litigation. In doing so, the Supreme Court made a dubious ruling on the doctrine of unearned wages that will be discussed infra. The decision also was the first to analyze then-new Evidence Rule 904 (allowing certain documents into evidence without being verified by a witness). Trench warfare continued for several years until the firm got rid of its leading sociopaths and returned to ‘normal’ litigation tactics. It lost market share, it seemed to me, after returning to the mainstream. Perhaps certain segments of the fishing and marine insurance industries favored dirty tricks and hardball litigation tactics. Others in the maritime defense bar were quick to rise to the challenge.
See, e.g., “Millions for Defense but Not One Dime for Tribute: The case of Gruver v. Lesman, 489 F.3d 978 (9th Cir. 2007), on Remand” (Trial News March 2008). In my 35-year legal career, the case of which I am most proud is Lundborg v. Keystone Shipping, 138 Wn.2d 658 (1999). Most union seamen then received only $8/day in maintenance (a bare bones living stipend paid during recuperation) when ill or injured, a rate set about the time of the Korean War. The Ninth Circuit Court of Appeals upheld that ridiculous rate of maintenance because it was contained in a collective bargaining agreement. Gardiner v. Sea-Land Service, 786 F.2d 943 (1986), cert. denied, 479 U.S. 924. The state Supreme Court ruled contrary to the federal Ninth Circuit on an issue of federal maritime law, holding that the $8/day rate of maintenance was not binding as a matter of law if that amount “abrogated” a seaman’s right to maintenance – i.e., was too low to pay for basics like rent, utilities and food.
That same year federal Judge John Coughenour ruled that maintenance rates set forth in individual contracts of employment are not binding as a matter of law if insufficient to pay the basic necessities of living for an ill or injured seaman. Rowell v. Tyson, 1999 A.M.C. 2277 (W.D. Wash. 1999). The decision called into question the years-long practice by fishing companies of limiting maintenance to $20/day. This case and the Lundborg decision were discussed in a Trial News article, “Rates of Maintenance in Contracts of Employment Not Enforced When Too Low to Reimburse Reasonable Expenses for Recuperating Seamen” (December 1999).
Processors on fish factory ships are entitled to minimum and overtime wages under the Fair Labor Standards Act, 29 U.S.C. §201 et seq. Processors doing exactly the same work on factory trawlers, those boats that catch as well as process fish, are not entitled to FLSA wages. Instead they work for a share of the catch, often expressed as a few thousandths of one percent of the sale price. The processors typically work 16 hours per day, seven days per week with no guarantee of compensation. If fishing is bad, or if the catch is fraudulently understated, processors on factory trawlers are paid little or nothing. Exempted from FLSA wage protection are those engaged in fishing and in the “first processing” of fish per 29 U.S.C. §213 (a)(5). There were no U.S.-flagged factory trawlers when the FLSA was enacted in 1938. Fish were caught by catcher boats, headed and gutted, and then delivered to canneries on land for final processing. I maintain that “first processing” means the initial handling of the fish by fishermen. The real or ‘final processing’ of fish, as of 1938, was done by processors on land who were entitled to FLSA wages. The theory was outlined in Trial News, “Are Processors aboard Factory Trawlers Entitled to Federal Minimum Wage and Overtime Protection?” (July/Aug. 1994). I started bringing cases in federal court challenging the interpretation of the “first processing” exemption from minimum wage protection. To no avail. I’d be a liar if I said I didn’t think that money, politics and the influence of the fishing industry in Washington and Alaska had anything to do with refusal by federal courts to expand wage protections for processors, most of whom were immigrants. I appealed. In an unpublished memorandum decision, the Ninth Circuit shot me down. Wyatt v. Royal Seafoods, 96-35960 (1998) (unreported). Because the Wyatt decision was not binding precedent, I kept on pushing my interpretation of the law, bringing parallel actions in both federal and state courts.
Some of the more unscrupulous fishing companies charge their processors, after the employees have completed their contracts, with deductions for airfare, ship store charges, etc. exceed earnings. Instead of a pay check, the processors are sent a bill for the privilege of working 16 hours a day, seven days a week. See Trial News “Working 16 Hours/Day for No Pay” (March 2001). Three Vietnamese immigrants, Huang “Wayne” and Bora “Gabby” Do, a married couple, came to see me, along with their friend Tinh Pham. The three had left their homes in Virginia to make their fortunes fishing in Alaska. They signed contracts to work aboard the factory trawler F/T Ocean Peace. Wayne was injured when a fish spine punctured his hand, followed by infection; Gabby was sexually harassed; and Tinh Pham became ill. Thirty days into a 40-day contract all three left the Ocean Peace in Dutch Harbor, Alaska. They borrowed money from relatives to fly home. Settlements were mailed to them in Virginia. Instead of a check they each got a bill stating they owed Ocean Peace money for their northbound airfare. I filed suit in federal court for Gabby Do and Tinh Pham. To hedge my bet, I filed a parallel lawsuit in King County Superior Court for Wayne Do. Federal Judge Thomas Zilly promptly tossed the case out on summary judgment. I appealed to the Ninth Circuit. A Superior Court judge in state court, whose name I can’t recall, tossed Wayne’s case out on summary judgment as well. I appealed to Division I of the state Court of Appeals.
The U.S. Court of Appeals made short work of my argument, ruling that “first” in the “first processing” exemption of 29 U.S.C. §213(a)(5) meant the first time fish are processed, rather than the first stage of processing. Do v. Ocean Peace, 279 F.3d 688 (9th Cir. 2002). Four months later, the State Court of Appeals followed the Ninth Circuit in an unpublished opinion. Do v. Ocean Peace, No. 49056 -7-I (Wn. App. 2002). The composition of the U.S. Supreme Court at the time was such that a petition for certiorari did not seem like a good idea. Similarly, a petition for review by the Washington Supreme Court also seemed futile. Even though I’d done it once before – persuading a state court to rule against a federal court on an issue of federal law – the circumstances in the Lundborg case, supra, were more compelling and I doubted I’d be able to have that sort of success again.
All I’ve got to show for this effort is that it’s been several years now since a processor has come into my office with a bill from his or her employer for money owed after the processor worked 16 hours/day for no pay. Maybe the fishing companies have finally realized that there might be a limit to how far they can take advantage of their processors before Congress or the courts finally do something about it. In 2002, I persuaded federal Judge Barbara Rothstein to incorporate the Enhanced Injury Doctrine into the maritime law. Also called the crashworthiness doctrine, it means that injured people can recover damages, even for situations that they put themselves into, if their injuries are worsened by other factors. For example, if a driver is at fault for causing a head-on collision but the airbag doesn’t deploy, which could have saved the driver’s life, the driver’s estate can claim damages from the airbag manufacturer. In my case, a seiner in the Shelikof Strait, separating Kodiak Island from the Alaska mainland, broached (turned sideways in a trough) and capsized after being overtaken by a following sea. The life raft did not deploy and all hands were lost. The capsizing likely resulted from the negligence of the Master, whose estate I represented. I sued the manufacturer of the hydrostatic release mechanism which, had it activated, would have released the raft. In refusing to dismiss the case, Judge Rothstein looked to the state law of Washington and borrowed from the Enhanced Injury Doctrine. Van Valkenberg v. Puget Sound Iinflatables, 2002 A.M.C. 2673 (W.D. Wash. 2002). The case is discussed in Trial News, “Enhanced Injury Doctrine Adopted into the General Maritime Law” (June 2003).
The U.S. Code, 46 U.S.C. §10603, requires seamen aboard fishing vessels to report injuries within seven days. Federal Judge Coughenour ruled that the failure to timely report injuries is not a defense to the vessel owner’s obligation to pay compensation for injury claims. Hankin v. Traveler, 2003 A.M.C. 2099 (W.D. Wash. 2003). See “Failure to Report Injuries within Seven Days Not Fatal to Maritime Claims” (Trial News April 2012).
A fisherman had a heart attack while working. A stent was put in place and he was paid maintenance-and-cure (“cure” means payment of medical bills) until he reached “maximum cure” (as good as he was going to get) when his condition stabilized. Sometime later he suffered a second heart attack when the stent for repair of the first heart attack failed.
Following trial, federal Judge Robert Lasnik ruled that the fishing company’s obligation to pay maintenance-and-cure, although once terminated, sprang anew if there was a way to improve healing from the first heart attack. Smith v. Marauder, 2003 A.M.C. 1308 (W.D. Wash. 2003).
A case before Judge Robert Bryan, federal court in Tacoma, set precedent at both the trial level and on appeal, but for very different legal issues. Jeff Gruver was hired to work on a 49-foot shrimper out of Westport, WA. He was not given a written contract of employment as is required by 46 U.S.C. §10601. Gruver asserted he was not paid the wages verbally agreed to. While the boat was tied to the dock Gruver threatened the Master, who also owned the boat, and a confrontation ensued. The Master had a 380-pound deckhand named Jimmy Hoff resolve the dispute by beating Gruver to within an inch of his life. Gruver sued the Master for both wages and assault.
The remedy for not having a written contract is an entitlement to the highest rate of wages paid out of the port where the fisherman was hired. See 46 U.S.C. 11107. I persuaded Judge Bryan to rule that if the fisherman was cheated on the wages verbally agreed to, the fisherman was entitled to double-wage-penalties under state law on top of those wages already increased under federal law by 46 U.S.C. §11107 for the failure to provide a written contract. Gruver v. Lesman, 2005 A.M.C. 143 (W.D. Wash. 2005), rev’d, 489 F.3d 978 (9th Cir. 2007).
The wage aspect of the case settled shortly after the decision above, leaving only the cause of action for assault. I tried to get punitive damages for assault, an issue on which there was no precedent at the time. See “Are Punitive Damages Available when a Master Assaults a Deckhand?” (Trial News November 2005). Instead of deciding that issue, Judge Bryan dismissed the case, without prejudice to re-filing it in state court, ruling that there was no maritime jurisdiction for a claim of garden-variety assault.
I appealed, arguing that a fistfight between a deckhand and a Master over wages was “about as maritime as it gets.” The Ninth Circuit agreed with me and reversed. Gruver v. Lesman, supra, 489 F.3d 978 (2007). To read how the case resolved on remand, see the March 2008 edition of Trial News, supra, “Millions for Defense . . .”
I have long maintained that child support should not be deducted from maintenance, just as maintenance should not be an offset from unemployment compensation. “The Effect of Maintenance on: 1) Unemployment Compensation; and 2) Child Support” (Trial News May 2008). Maintenance is not a substitute for wage loss like workers’ compensation is.
Instead, it is a substitute for the free room and board a seaman would have received had he or she not left the vessel with illness or injury. My stance on this issue is not politically correct and has gotten me into trouble at home, with female colleagues and jurists, and ultimately with the Ninth Circuit.
Consider this scenario: An injured processor returns to his home in Texas where he can pay for his food, rent and utilities on the $20/day he’s given in maintenance. However, half his maintenance is garnished by the Texas Attorney General for child support. He could not get by on $10/day. I filed suit and brought a motion for a declaration that maintenance should be defined by maritime law and was not income subject to garnishment. Federal Judge James Robart disagreed and denied the motion, ruling that maintenance should be defined under the state law of Texas.
The rest of the case settled and I appealed only the maintenance/child support issue.
The Ninth Circuit affirmed Judge Robart’s decision, ruling that maintenance constituted “resources” under Texas law. To reach this result, the appellate court equated maintenance with wages subject to garnishment. Aguilera v. Alaska Juris, 535 F.3d 1007 (9th Cir. 2008). The decision was poorly-reasoned in my opinion, but I was not about to petition the U.S. Supreme Court for certiorari.
This is not over. It seems axiomatic that the nature of maintenance should be decided by maritime, not state law. Even under state law – certainly the law of Washington if not that of Texas – maintenance should not be equated with wages. Leaving an injured seaman with $10/day on which to live serves only to create another person who qualifies for public assistance – if not starvation, homelessness or crime – while the other $10/day is hardly enough to get the recipient child off public assistance. Regardless of one’s politics or social views, none of these outcomes comport with the public policy surrounding the payment of child support. Strictly construed, the Aguilera decision is limited to the definition of “resources” under the state law of Texas. In Washington, for example, only “income” can be attached to satisfy child support liens. Income is defined at RCW 26.19.071(3). I’m waiting for a test case involving garnishment of maintenance for child support by the State of Washington. It is my intention to file suit against the state, praying for a declaration that maintenance does not constitute “income” as a matter of state law. See, “The Status of Maintenance (for Seamen) and Child Support in Washington after Aguilera v. F/T Alaska Juris . . . ” (Trial News October 2009).
Seamen don’t receive workers’ compensation. The closest they get to no-fault time-loss payments are unearned wages – wages paid to the end of the contemplated period of employment. As part of the maintenance-and-cure doctrine, the benefit is sometimes called maintenance-wages-cure. Fishermen traditionally were employed by the season for the type of fish targeted. For those becoming ill or injured, the entitlement to unearned wages lasted to the end of the season. Some fishing companies started having fishermen sign employment contracts of short duration – e.g., 30 days – while verbally assuring the fisherman that he or she was being hired for the season. If the fisherman kept working without incident, the employer presented another contract for signature every 30 days. If the fisherman became ill or injured, however, unearned wages ceased at the end of the 30-day contractual period then in effect. I challenged this practice in state court, pointing out that the contract gave lie to 30 days being the contemplated period of employment because the fisherman had to complete three contracts – 90 days – before airfare to and from Alaska was reimbursed. The State Supreme Court shot down my theory. Miller v. Arctic Alaska, supra, 133 Wn.2d 250 (1997). As earlier discussed, I contend the Supreme Court took liberties with logic and the law to prevent remand of that case, making bad law in the process.
The decision would come back to haunt me.
Certain fishing companies became emboldened by the Miller decision and shortened their employment contracts even further, to one trip at a time – trips that sometimes lasted only a week or 10 days between offloads of the catch. Having struck out in state court, I renewed my challenge to this practice by bringing cases in federal court, where the Miller case was not binding precedent. I argued that if this scheme went unchecked we’d soon see one-day contracts of employment, effectively eliminating unearned wages for fishermen.
Federal Judges Coughenour and Lasnik agreed with me in unreported cases – notwithstanding Miller, supra – ruling that extrinsic evidence (apart from language in the contract) was admissible to determine the contemplated period of employment for purposes of unearned wages. Contra Diaz v. Ocean Peace, 2001 A.M.C. 408 (W.D. Wash. 2000) (Judge Marsha Pechman did rely on the Miller case). The cases are discussed in “Local Federal Courts More Protective than State Supreme Court of Fishermen’s Right to Unearned Wages” (Trial News July/Aug. 2005). These cases all settled without appeal. I did appeal another case involving short trip-to-trip contracts. The Ninth Circuit (citing Miller) refused to allow extrinsic evidence and enforced the employment contract as written. Day v. American Seafoods, 557 F.3d 1056 9th Cir. (2009). I lost.
The case I’m second-most proud of in my career is Dean v. Fishing Company of Alaska, 177 Wn.2d 399 (2013). When fishing and shipping companies got tired of paying maintenance-and-cure to an ill or injured seaman, all they had to do was hire a doctor to write an opinion stating that the seaman was at maximum cure or that the medical condition did not manifest while the seaman was in the service of the vessel. Maintenance-and-cure would then be cut off. Even if the seaman’s treating physician opined that the seaman needed more treatment for a condition that did manifest while the seaman was in the service of the ship, a motion for reinstatement of maintenance-and-cure was futile. Under the existing court rules, who-do-you-believe contests between doctors could not be decided until trial. The problem with that rule was that it takes about a year after filing suit in Seattle to get a trial date in federal court (about 18 months in King County Superior Court at the time). Even if the doctor testifying for the insurance company was a for-sale hack, his or her opinion could not be discounted until trial. How was the recuperating seaman to pay the bills until then? The answer too often was: settle your injury claim for cheap.
The state Supreme Court ruled that the normal standard for summary judgment motions should not be applied to situations involving seamen who had already established an entitlement to maintenance-and-cure, although the seaman still bears the burden of proof to establish an initial entitlement to those injury benefits. After establishing such an entitlement, the burden of proof shifts to the vessel owner to show that the seaman has reached maximum cure or is otherwise disentitled to maintenance-and-cure. In other words, in cases of conflicting medical opinions, the seaman’s treating physician trumps the insurance doctor until such time as there is a credibility determination at an evidentiary hearing or trial. No longer can insurance companies try to starve out seamen until they settle for cheap, simply by hiring a doctor to contradict the seaman’s treating physician. The case is discussed at “Shipowners Can No Longer Escape Maintenance-and-cure Obligation Simply by Purchasing a Contrary Medical Opinion” (Trial News July/Aug. 2013).
There are no statutory penalties under the federal maritime law for the failure to pay wages to commercial fishermen. (Fishing companies can avoid state law wage penalties simply by including language in employment contracts stating that state law cannot be used to supplement the maritime law.) This proposition should not be confused with 46 U.S.C. §11107, discussed supra, which provides for a higher rate of wages when a fisherman’s contract of employment is not in writing. For years I have been trying to establish precedent, in both state and federal courts, to the effect that punitive damages are available for these types of wage claims. The efforts were described in Trial News, “Are Punitive Damages Available in Wage Claims for Fishermen?” (December 2012). Judges refused to decide the issue on the motion calendar and the cases all settled before trial or appeal. At this writing I have a case in the federal District of Idaho, of all places, that might get this issue decided when appealed to the Ninth Circuit. (The case involves fishing in Alaska by a fisherman from Oregon, who brought a lawsuit in Washington against a vessel owner residing in Idaho. This jurisdictional smorgasbord is described at Dunn v. Hatch, 2016 A.M.C. 99 (W.D. Wash. 2015).) The only federal judge in Idaho, B. Lynn Winmill, held in a pretrial ruling that punitive damages are not available to commercial fishermen asserting wage claims. Once there is a verdict at trial, unless the case settles, I intend to appeal on the punitive damages issue. Dunn v. Hatch Marine, No.1:15-cv-00479-BLW (D. Idaho).
Three other pending cases promise to set precedent, win or lose:
1. In response to cases holding that unearned wages include all forms of compensation, including normal and routine overtime paid to union seamen, some shipping companies renegotiated their collective bargaining agreements. The agreement with the Seafarers International Union, for example, now states that unearned wages due ill or injured seamen shall consist of base wages only. On most ships, union seamen earn more in overtime than they do in base wages. An AB (able seaman) was seriously injured in a fall just before her ship left the Port of Tacoma on a foreign voyage. She was paid only base wages for the duration of foreign articles. Presently on the calendar in Pierce County Superior Court is the AB’s motion for partial summary judgment on her entitlement to overtime compensation as part of unearned wages. Relying on the Lundborg case, supra, I argue that the language about unearned wages in the collective bargaining agreement is not necessarily enforceable as a matter of law. Rather, a jury should be allowed to determine whether or not depriving the AB of more than half her expected compensation from the voyage effectively “abrogated” her entitlement to unearned wages. Brooks v. Crowley Maritime Corp., No. 17-2-05601-0. If the party losing this motion is unhappy with the jury’s verdict at trial, this issue will go up on appeal.
2. Another AB, Sisto Andrew, suffered a serious back injury while working on a freighter. He settled his case at mediation (while represented by a different lawyer) for $525,000. As a condition of the settlement he had to give up his seaman’s papers (Merchant Mariner’s Document issued by the Coast Guard) and agree that he would not work as a merchant seaman again for 25 years. The AB blew the settlement money and then tried to get his papers back from the Coast Guard, in blatant violation of the settlement agreement. The shipping company got wind of this and demanded arbitration. Per the settlement agreement the mediator became the arbitrator. The arbitrator entered an award requiring the AB to surrender his seaman’s papers and granted some $30,000 in attorney fees to the shipping company. I was retained to try to vacate the arbitration award. I argued that while ‘no sail’ agreements are enforceable as regards the company a seaman worked for when injured, requiring the seaman to give up his occupation is an impermissible restraint of trade.
Presiding Judge Beth Andrus of King County Superior Court disagreed and entered judgment on the arbitration award. I appealed. Oral argument in Division I is scheduled for June 13, 2017. OSG Ship Management v. Andrew, No. 75477-7-I (Wn. App. 2017).
3. The requirements of 46 U.S.C. §10601, mandate written contracts of employment for fishermen, was enacted by Congress in 1988. The contracts must include a “period of effectiveness” for the employment – how long the job is to last. I contend that the doctrine of employment at will is not applicable during the “period of effectiveness” and that a fisherman cannot be discharged without cause – for a good reason – during the contractual term. See “Is Employment of Fishermen at Will, or is Just Cause Required for Discharge?” (Trial News March 2014). Incredibly, no reported cases have addressed this issue during the almost 30 years the statute has been in effect.
Mike McPherson was recruited in Missouri, where he lives, to work for the Fishing Company of Alaska as Assistant Engineer. He flew to Dutch Harbor, Alaska, where he signed a contract to work aboard the F/T Alaska Spirit for 90 days at $200/day. Eighteen days into the 90-day contract FCA told him to go home, without giving him a reason. I sued FCA for wrongful discharge in King County Superior Court. Judge LeRoy McCullough dismissed the case on summary judgment, ruling that employment was still ‘at will’ even during the “period of effectiveness” of 46 U.S.C. 10601. In reaching that result, Judge McCullough relied on the reasoning of federal Judge Pechman. In an unreported decision for an earlier test case I’d brought in federal court, Judge Pechman ruled that there was no reason the employment at will doctrine should not apply during the “period of effectiveness” of a fisherman’s contract. The federal court case fizzled out and my attempt at appeal was rejected. This time, in state court, I did appeal. McPherson v. Fishing Company of Alaska, No.75059-3-I (Wn.App.). Oral argument before Division I of the state Court of Appeals was heard on April 18, 2017. The case awaits decision.
I have no plans to retire. I know I’ll have to retire sometime, but I don’t want to until someone steps into my shoes. I don’t know if I’ll ever find that person. The majority of cases I’ve taken up on appeal involve maintenance-and-cure or wage claims where not a lot of money is involved. So I guess I’ll keep on doing what I’m doing until I can’t do it anymore. I believe that meaning in the practice of law, as in life, is found in the struggle. The struggle continues . . .
John Merriam, EAGLE member, is a former merchant seaman, now a solo practitioner at Seattle’s Fishermen’s Terminal, who limits his practice to the representation of claimants for maritime wages and injury.