7ASR3d3
TCW SPECIAL CREDITS, a California
General Partnership, as Agent and Nominee, Plaintiff/Appellant,
v.
F/V KASSANDRA
Z, OFFICIAL NO. 653391, HER ENGINES, NETS, FURNITURE, etc., In Rem KASSANDRA
FISHING COMPANY, INC.; a Commonwealth of the Northern Mariana Islands
corporation, In Personam, Defendants.
______________________________
MICHAEL DATIN,
et al., Plaintiffs-In-Intervention/Appellees,
v.
M/V KASSANDRA Z, OFFICIAL NO. 654491, HER ENGINES, NETS, FURNITURE, etc.,
In Rem, et al., Defendants.
______________________________
AND RELATED
CLAIMS
High Court of American Samoa
Appellate Division
AP No. 05-00,
AP No. 09-00
March 4, 2003
[1] An appellate court reviews questions of law de novo but may not set aside the findings of fact of the Trial Division
unless they are clearly erroneous.
[2] A trial court finding of fact is clearly erroneous
when “the entire
record produces the definite and firm conviction that the court below committed
a mistake, according particular weight to the trial judge’s assessment of
conflicting and ambiguous facts.”
[3] The purpose of the portion of statutory wages
awarded under 46 U.S.C. § 11107 that is more than what the seaman would have
received had his fishing agreement been valid is designed to punish ship owners
who illegally engage seamen.
[4] Historically, the purpose of the requirement of a
written shipping articles agreement under 46 U.S.C. § 11107 was to protect seamen
from exploitation and mistreatment, while its modern purpose is to avoid
disputes about wages and other terms and conditions of employment.
[5] Punitive damages cannot be recovered against a
vessel.
[6] Statutory wages awarded under 46 U.S.C. § 11107
are not punitive damages since the statute merely substitutes for an oral
fishing agreement and calls for the rate of wages that are to be paid.
[7] Statutory wages awarded under 46 U.S.C. § 11107
give rise to preferred maritime liens that are recoverable in rem and are granted the highest priority
after in custodia legis costs.
[8] In contrast to 46 U.S.C. § 10313(g), 46 U.S.C. §
11107 has no language limiting recovery of penalty wages only as against the
vessel’s master or owner and therefore permits recovery in rem against the sale proceeds of a fishing vessel.
[9] Party was not an “innocent lienholder” and should
have known the applicable law even if industry practice was contrary to the
law.
[10] Courts
cannot change what is clear on the face of the statute.
[11] Operation
of 46 U.S.C. § 11107 is automatic, rendering oral agreements between a crew and
the employer void and awarding statutory wages, regardless of whether the
employer made partial payment of wages on the agreements’ terms.
[12] Laches is
an equitable doctrine that bars an action where there has been an unreasonable
delay in bringing the suit, and the other party has been prejudiced as a result
of the delay.
[13] A wronged seaman is entitled to
recover the higher of either the wages he orally agreed to, or the higher rate
of wages that could be earned by a seaman at the port of hire who has the same
rating (rank, job classification, duties and ability) as the complainant.
[14] A court
examines the totality of the circumstances in determining whether a seaman has
demonstrated that he or she is comparable to another seaman for purposes of 46
U.S.C. § 11107.
[15] To prevail
in a civil action, a party must make the required showing by a preponderance of
the evidence.
[16] The trial
court’s finding that crew members, other than ordinary deckhands, were
“interchangeable” with crew members of other ships and fleets without reference
to their rank, job classification, duties and abilities was clearly erroneous
in light of the crew’s burden of proving its case by a preponderance of the
evidence and the lack of facts that would support such a finding.
[17] The
doctrine of quantum meruit awards a
plaintiff an amount equal to the value of the benefit he has provided to
protect against the unjust enrichment of the beneficiary.
[18] Under quantum
meruit, crew entitled to the value of the benefit they conferred upon their
vessel and its owners where
crew was instrumental in keeping the vessel in working order even though the
imminent voyage never materialized because the vessel maintained a higher price
upon judicial sale than would have been realized if the vessel were run-down.
[19]
Calculation of crew’s recovery in quantum meruit for maintaining a
vessel before a voyage that never occurs is the actual value of the benefit
conferred, not the hypothetical benefit that might have accrued had the ship
taken the voyage.
[20] American Samoa law allows in rem recovery
against a vessel of a quantum meruit award.
Before RICHMOND, Associate Justice; WALLACE,* Acting Associate Justice; MOLLWAY,** Acting Associate Justice; MAMEA,
Associate Judge; TUPUIVAO, Associate Judge.
Counsel: Craig Miller and Barry I. Rose for Plaintiff/Appellant TCW Special Credits
William H. Reardon and
William L. Banning for
Michael Datin, et al.,
Plaintiffs-In-Intervention/Appellees
OPINION AND ORDER
TCW Special Credits (“TCW”) appeals from a judgment of the
Trial Division holding that following its foreclosure of a preferred ship
mortgage on the F/V Kassandra Z (Kassandra Z), TCW must pay
Michael Datin, et al., Kassandra Z’s crew, statutory
wages under 46 U.S.C. § 11107 and quantum meruit damages because the chip’s former owner failed to do so
prior to the arrest of the ship in 1996.
The crew also appealed and cross-appealed. The Trial Division had jurisdiction over this
action pursuant to A.S.C.A. § 3.0208(a).
We have jurisdiction over these timely appeals pursuant to A.S.C.A. §
3.0208(c). We affirm in part, reverse in
part, and remand to the Trial Division for further proceedings.
I.
The Kassandra Z was part of a family of eleven tuna seiners owned
by the Zuanich family who operated out of various ports, including American
Samoa, Guam, New Zealand, and San Diego, California. The Zuanich family began to experience
financial difficulty in 1995. Seeking
relief, the Kassandra Z Fishing Co., Inc., one of the companies owned by the
Zuanich family, granted a preferred ship mortgage to TCW secured
against its vessel, the Kassandra Z. On
July 2, 1996, TCW filed a foreclosure action against the Kassandra Z in
the Trial Division and had the vessel arrested by the High Court Marshal. The crew members on board were removed from
the ship, and most were repatriated to their homeland in Croatia.
Thereafter, the crew members intervened in the foreclosure action,
alleging that they were owed unpaid wages for two full voyages, as well as
“short checks”—adjustments in pay based on the cannery’s final calculation of
the haul to be canned—left unpaid from other trips. Because the crew members
were never given written fishing agreements as required by 46 U.S.C. § 10601
they asserted they were entitled to statutory wages under 46 U.S.C. §
11107. Section 11107 provides that “[a]n
engagement of a seaman contrary to a law of the United States is void. A seaman so engaged . . . is entitled to
recover the highest rate of wages at the port from which the seaman was engaged
or the amount agreed to be given the seaman at the time of engagement, whichever
is higher.” 46 U.S.C. § 11107.
Following a three-day trial the Trial Division awarded judgment for the
crew in the amount of $713,623.14. The
Court determined the amount of the award based upon unpaid wages under Section
11107 for two trips, wages for the time the crew spent waiting in port for what
was to be the final voyage of the ship, prejudgment interest, and other
costs. Both sides moved for
reconsideration of portions of the Trial Division’s decision, and the Court
issued a second order, holding that Section 11107 wages for the short checks
were available, and adjusting the crew’s award to $1,396,155.55.
On appeal, TCW argues that the wages awarded to the crew under 46 U.S.C.
§ 11107 are really “penalties” that cannot be recovered in rem with priority over TCW’s preferred ship mortgage. It also argues that the Trial Division erred
in awarding wages under Section 11107 for the “short checks” that were never
paid. TCW alleges that the Trial
Division erred in allowing the crew to prove the rate of wages to which they
were entitled under Section 11101 by a “prima facie” showing only. Finally, it asserts that the Trial Division
erred in awarding any wages for the crew’s in-port waiting time for the final
journey that never happened. The crew
argues on cross-appeal that the court erred in requiring the crew to prove any
comparability under Section 11107. They
assert that instead they should receive the highest wage paid to “any seaman”
on board the ship. In the alternative,
they suggest that the Trial Division should have used a rating system as
suggested by the Court of Appeals for the Ninth Circuit in TCW Special Credits v. Chloe Z Fishing Co.,
129 F.3d 1330 (9th Cir. 1997).
II.
One preliminary matter deserves
attention. Long after briefing had
closed and just weeks before oral
argument, the crew filed what it styled a “supplemental brief,” which
urged that under the unpublished decision in TCW Special Credits v. Barandiaran, 238 F.3d 431 (Table), 2000 WL
1277939 (9th Cir. Sept. 8, 2000), the Trial Division additionally erred in
ruling that the Kassandra Z’s
Master and Fish Captain were not entitled to wages under Section 11107. The Court of Appeals for the Ninth Circuit
does not ordinarily allow citation to unpublished decisions. Ninth Circuit Rule 36-3(b). The crew does not provide a reason why we
should consider a decision the authoring court does not deem to be of
precedential authority.
However, we need not decide this issue. We conclude the crew’s claim in its
“supplemental brief” is jurisdictionally barred. While parties may direct our attention to
legal authority established subsequent to briefing, they are not free to raise
new arguments not addressed in their briefs.
The crew did not raise this issue in either their appellee’s brief or
their cross-appeal brief. Therefore, the
“supplemental brief” does not meet the ten-day time limitation for filing a
notice to appeal, A.C.R. 4(a). Because
the deadline for filing a notice of appeal is jurisdictional, A.S.C.A. §
43.0802(b), Taulaga v. Patea, 17
A.S.R.2d 34, 35 (App. Div. 1990), we will not address this issue.
III.
[1-2] We review questions of law de novo. Anderson
v Vaivao, 21 A.S.R.2d 95, 98 (App. Div. 1992). We may not set aside the findings of fact of
the Trial Division unless they are clearly erroneous. A.S.C.A. § 43.0801(b); Anderson, 21 A.S.R.2d at 98.
A finding is clearly erroneous when “the entire record produces the
definite and firm conviction that the court below committed a mistake,”
according particular weight to the trial judge’s assessment of conflicting and
ambiguous facts.” E.W. Truck & Equip. Co. v. Coulter, 20 A.S.R.2d 88, 92 (App. Div.
1992).
With this in mind, we turn first to whether the Trial
Division erred in concluding that the statutory wages it awarded the crew for
unpaid trips under 46 U.S.C. § 11107 were recoverable in rem against the
Kassandra Z and with a
preferred lien status over TCW’s ship mortgage.
[3-4] TCW urges us to call these statutory
wages “penalties” or “punitive damages,” and asserts that we should hold that
they are not recoverable in rem with
priority over TCW’s preferred ship mortgage.
TCW correctly points out that the purpose of the portion of statutory
wages awarded under Section 11107 that is more than what the seaman would have
received had his fishing agreement been valid is designed to punish ship owners
who illegally engage seamen. Seattle-First Nat’l Bank v. St. Elias Ocean
Prods., Inc., 98 F.3d 1195, 1198 (9th Cir. 1996). Historically, the purpose of the requirement
of a written shipping articles agreement was to protect seamen from
exploitation and mistreatment, Sylvis v. Rouge
Steel Co., 873 F.2d 122, 125 (6th Cir. 1989), while its modern purpose is
to avoid disputes about wages and other terms and conditions of employment
precisely like the one in this lawsuit. Id.
As such, the “punishment” for violation of this requirement is that the
ship is answerable to the crew for a rate that may be higher than what they
invalidly agreed to in the first place.
[5-6] We understand that punitive damages cannot be recovered against a
vessel. Hunley v. Ace Mar. Corp., 927 F.2d 493, 496 (9th Cir. 1991). Nonetheless, statutory wages awarded under
Section 11107 are not punitive damages.
The statute expressly states that the seaman illegally engaged “is
entitled to recover the highest rate
of wages at the port from which the seaman was engaged or the amount
agreed . . . whichever is higher.” 46
U.S.C. § 11107 (emphasis added). The
statute therefore substitutes for the oral agreement, and calls for the rate of
wages that are to be paid. Thus, the
amount awarded under Section 11107 is not a “punitive damages” award—it rather
represents wages owed at a rate statutorily set. Courts have long held this to be the
case. See West Winds, Inc. v. M.V.
Reso1ute, 720 F.2d 1097, 1103 n.4 (9th Cir. 1993) (citing to predecessor
statutes discussed in Collie v. Fergusson,
281 U.S. 52, 54 (1930) and Gerber v.
Spencer, 278 F. 886, 889 (9th Cir. 1922)); Buckley v. Oceanic S.S. Co., 5 F.2d 545, 546 (9th Cir. 1925)
(predecessor statute).
[7]
Statutory wages awarded under 46 U.S.C. § 11107 give rise to preferred maritime
liens that are recoverable in rem. 46 U.S.C. § 31301(5)(D); Seattle-First Nat’l Bank v. Conaway, 95
F.3d 1195, 1198-99 (9th Cir. 1995). This
is so because, as the Supreme Court recognized early in American history, a
ship is liable in rem for the unpaid wages of a Seaman.
The John G. Stevens, 170 U.S.
113, 119 (1898). Moreover, seamen’s wage
liens have always been granted the highest priority after in custodia legis costs. Key
Bank of Wash. v. S. Comfort, 106 F.3d 1441, 1443-44 (9th Cir. 1997); Kesselring v. F/T Arctic Hero, 30 F.3d 1123,
1125-26 (9th Cir. 1994). The Ship
Mortgage Act also makes clear that liens for wages of the crew have priority
over preferred ship mortgages. 46 U.S.C.
§ 31326(b)(1).
[8]
TCW urges us to adopt the holding of the Fifth Circuit in Governor & Co. of Bank of Scotland v. Sabay, 211 F.3d 261, 275 (5th Cir. 2000), and apply it here. Sabay
held that penalty wages awarded under 46 U.S.C. § 10313(g) are not recoverable in rem against the sale proceeds
of a fishing vessel. Id. at 275. However, the plain language of Section
10313(g), with which Sabay dealt,
makes the holding in that case inapplicable to the case before us. Section 10313(g) states that when the master
does not pay each seaman the balance of wages due “without sufficient cause,
the master or owner shall pay to
the seaman 2 days’ wages for each day payment is delayed.” 45 U.S.C. § 10313(g) (emphasis added). The Fifth Circuit interpreted this statute’s
plain language to “preclude . . . enforcement
of the penalty wages liens at issue against the sale proceeds. The statute imposes liability for such wages
only on the vessel master or owner. Sabay,
211 F.3d at 275. Because the sale
proceeds were insufficient to satisfy all of the liens against the vessel, the
owner no longer had an interest in those proceeds; therefore the lien could not
be enforced against proceeds in which the owner no longer had an interest. Id. at 275-76. Sabay
is inapplicable to this case, where Section 11107 has no language limiting
recovery only as against the vessel’s master or owner.
[9] TCW’s final
argument is that it is an “innocent lienholder” and shouldn’t have to pay the
crew’s wages under Section 11107. But
when TCW secured its mortgage on the Kassandra
Z, the statutes at issue in this case, 46 U.S.C. § 10601 and 45 U.S.C. §
11107, were already law. Commercial
Wishing Industry Vessel Safety Act of 1988, Pub. L. 100-424, § 6(a), 102 Stat.
1591 (codified as 46 U.S.C. § 10601); Act of Aug. 25, 1983, Pub. L. 99-89, 97
Stat. 580 (codified as 46 U.S.C. § 11107).
The relevant cases, West Winds,
720 F.2d at 1103 n.4 (holding that Section 11107 wages are wages and not
punitive damages) and The John G. Stevens.
170 U.S. at 119 (holding that “as long as a plank of the ship remains, the
sailor is entitled, against all other persons, to the proceeds as a security
for his wages”) had long been decided.
When TCW secured
the mortgage on the Kassandra Z, it should have been aware of what the
law was, even if, as it asserts, it was standard practice in the fishing
industry to operate without written fishing agreements. Indeed, compared to fishermen, mortgagees
like TCW are in a better position to demand that vessel owners make written
agreements with their seamen through covenants in the mortgage contract.
We therefore hold that the Trial Division did not err in awarding the
statutory wages to the crew under Section 11107’s preferred status over TCW’s
ship mortgage.
IV.
We next deal with TCW’s challenge to the Trial Division’s decision to
award approximately $600,000 under 46 U.S.C. § 11107 for unpaid wages owed on
certain “short checks” unpaid at the time of the vessel’s arrest. It is standard practice in the tuna fishing
industry to pay crew wages in two installments: the first is a substantial
payment of 90-95% of the wages owed based on the estimated weight of the fish
off-loaded; the second is for the remaining 5-10%, known as a “short check,”
which is calculated after the cannery determines the quantity of
“rejects.” Short checks typically are
issued within a few weeks after the catch is off-loaded; however, the owners of
the Kassandra Z never paid crew members their short checks for nine of
the twenty-six fishing trips they made.
TCW argues that the Trial Division erred in awarding statutory wages for
these missing short checks. TCW’s
argument is based upon three contentions: (1) the seamen were “fully paid” for
the nine trips in question; (2) permitting the recovery of statutory wages
would be unfair and would cause dire consequences to the fishing industry; and
(3) the crew’s claims are barred by the equitable doctrine of laches.
As for TCW’s
first contention, the Trial Division found that the crew members were not fully
paid for these trips. We hold the
finding was not clearly erroneous. That
they received the first payment of 90-95% does not mean they were “fully paid.”
[10-11]
The “unfairness” argument, based upon the crew recovering more wages than they
would have had their fishing agreements been valid, is addressed to the wrong
forum. We cannot change what is clear on
the face of the statute. Conn. Nat’l Bank v. Germain, 503 U.S.
249, 254 (1992); Griffin v Oceanic Contractors, Inc., 458
U.S. 564, 570 (1982). The
statutory-language here is unambiguous: statutory wages are awarded any time
there is an unlawful engagement of a seaman.
46 U.S.C. § 11107. Operation of
Section 11107 is automatic because it renders “engagement of a seaman contrary to
the law of the United States . . . void.”
Id. As the Trial Division observed, “A void contract is a legal nullity,
and cannot serve as the basis for equitable estoppel. In the event that the oral agreements between
the [c]rew and [the Kassandra Z Fishing Company] were void, partial payment on
their terms does not constitute a bar to the recovery of statutory wages under
46 U.S.C. § 11107.” TCW Special Credits, Inc. v F/V Kassandra Z, 4 A.S.R.3d 154, 164-65
(Trial Div. 2000). The crew members are
entitled to statutory wages for those trips, regardless of whether they had
already been paid a majority of their wages.
The result of the Trial Division considering the old trips for which the
crew admittedly was mostly paid is a consequence of the plain language of the
statute. Such seemingly harsh
consequences are precisely directed by the statute at forcing compliance with
Section 10601. Thus, TCW should direct this argument to Congress.
[12]
TCW’s third assertion is that the crew’s claims for statutory wages on these
prior trips are barred by laches. Laches
is an equitable doctrine that bars an action where there has been an
unreasonable delay in bringing the suit, and the other party has been
prejudiced as a result of the delay. Czaplicki v. The Hoegh Silvercloud, 351
U.S. 525, 533 (1956); Sandvik v. Alaska Packers Ass’n,
609 F.2d 969, 971 (9th Cir.
1979). Given a proper use, claims
involving old trips already mostly paid for might cause application of the
doctrine of lathes to mitigate the harsh consequences of the automatic
operation of Section 11107. But TCW only
argues that if any of the crew members had raised their claims for wages under
Section 11107 earlier, the issue would have been resolved right away. But with no record support, it would be
difficult to conclude that such claims would have been resolved with any speed,
given the fact that the owners of the Kassandra Z had repeatedly failed to pay the crew what they were owed
under the invalid oral agreements.
Furthermore, TCW has not made an express claim of undue delay or
prejudice, nor has it made a record of any prompt payment. The best that TCW has been able to suggest is
that if the crew members had raised their Section 11107 claims before the
foreclosure action, perhaps the vessel’s owners would have paid them. This is an allegation, not proof, and there
is no basis upon which we could hold that the action of the crew members as to
these nine trips is barred by laches.
V.
[13-14]
TCW next challenges the “light burden” of proof to which the Trial Division
held the crew when it came to determining the amount of wages to which the crew
was entitled for its unpaid voyages and short checks under Section 11107. The Trial Division decided that the crew need
only make what it called a “prima facie” showing that an individual seaman was
comparable to another seaman who made a higher wage at the port where the
seamen were employed. The Court borrowed
the comparability requirement from the Court of Appeals for the Ninth Circuit’s
holding in Chloe Z, 129 F.3d at 133,
that “a wronged seaman is entitled to recover the higher of either the wages he
orally agreed to, or the higher rate of wages that could be earned by a seaman
at the port of hire who has the same rating as the complainant.” “Rating” refers to the seaman’s “rank, job
classification, duties and ability.” Id. at 1331. We hold that Chloe Z properly states the rule.
In most cases, it requires that seamen seeking statutory wages under
Section 11107 prove that the wage rate they claim is a rate derived from the
salary of a seaman with the same rank, job classification, duties and
ability. However, these considerations
are not exclusive. We examine the totality
of the circumstances in determining whether a seaman has demonstrated that he
or she is comparable to another seaman for purposes of Section 11107. The Trial Division accepted a “prima facie”
showing as making out the crew’s claim of comparability.
[15]
To prevail in a civil action, a party must make the required showing by a
preponderance of the evidence. Tuia Suasuai v. Salave`a, 3 A.S.R.2d 1
(Lands & Titles Div. 1986). Here we
are called upon to determine whether the Trial Division erred when it allowed
crew members to demonstrate the applicable wage rate by merely submitting
rosters. Those rosters listed various
crewmen with job labels such as “deckhand” or “seaman” and the corresponding
person with the same label who was earning the most money elsewhere in the
Zuanich fleet. However, the Trial
Division made extensive findings of fact that the wage rate for ordinary
deckhands in the Zuanich fleet was determined largely by intangible factors
such as loyalty to a captain or even nepotism, rather than factors such as
rank, job classification, duties or ability.
TCW has not proven these findings to be clearly erroneous, and
therefore, the findings must be accepted.
The Court’s findings of fact suggest that deckhands were not generally
comparable because their wages depended not on identifiable factors like rank,
job classification, duties or ability, but rather on intangibles such as
personality or relationship to the Fish Captain. As the Court found:
There
are indeed significant distinctions in the rate of wages offered deckhands, not
only from one ship to another, but even on a single trip of a single
vessel. Certainly the reasons for these
differences were based at least in part on issues such as ability and
seniority. . . . At the same time, the facts established at trial also demonstrate
that most deckhands performed substantially the same day-to-day tasks,
including stacking nets and cork, standing watch, sorting fish, painting, and
other such duties not requiring any particular expertise or training . . . .
The method of hiring replacement deckhands is particularly illustrative of the
interchangeable nature of these workers . . . . [Fish Captain Gojko] Milisic
would simply put in a call to have someone flown out from Croatia, or would
hire any available seaman off the docks, regardless of whether the deckhand to
be replaced happened to have served in a specialized role such as spotting fish
or driving the skiff . . . . [I]n his words, the deckhands were “[j]ust . . .
laborer[s]” and needed “no license, no skill.” . . . . While we find that
experience and abilities may have played a small role in [determining wages],
as discussed above, the evidence indicates that the more critical contributing
factors were significantly less tangible.
For example, Fish Captain Milisic testified that, among other things, he
might pay one seaman more than another because “I like the guy” or because he’s
not “a trouble maker” . . . Total experience as a seaman might be marginally
relevant to wages, but loyalty to a particu1ar captain appears to be
much more significant.
TCW Special Credits, Inc. v. F/V Kassandra Z,
163 3 A.S.R.3d 163, 170-71 (Trial Div. 1999).
Because TCW has
provided us no basis upon which to conclude that this finding dealing with
ordinary deckhands aboard the Kassandra Z is clearly erroneous, there is
no basis for requiring proof in addition to the rosters of the crew. We affirm the Trial Division’s decision with
respect to those deckhand crew members because the Trial Division made specific
findings of fact that the Chloe
factors of rank, job classification, duties and ability played only a small
role in determining the deckhands’ wages.
We now turn to
the other members of the crew. The Trial
Division constructed its overall “prima facie” case mechanism after considering
the purpose of Section 11107 and the historical position of seamen in the
fishing industry. The Trial Division
placed a “light burden” on the crew for proving comparability based upon
concerns about the ability of seamen to search out and identify someone from their
port who has the same duties and skills as he, and the seaman’s traditional
role as a “ward . . . of admiralty.” TCW, 3 A.S.R.3d at 171. The Trial Division concluded that requiring
complicated methods of proof would thwart the primary purpose of Section 21107:
to provide “a quick and efficient means by which wronged seamen can get the
wages owed to them.” Id.
Instead, the Court decided it would be better to place the heavier
burden of rebutting prima facie comparability on the vessel’s owner, who would
have better access to the personnel in his fleet. Id.
at 172. In addition, the Court pointed
out that burdens of production and proof in admiralty claims are generally
relatively minimal. Id. at 171 (citing Comeaux v, T.L. James & Co., 702
F.2d 1023, 1024 (5th Cir. 1983) (seaman’s burden of proving cause in Jones Act
cases is “featherweight”); Yelverton v.
Mobile Labs, Inc., 782 F.2d 555, 558 (5th Cir. 1986) (“A seaman’s burden of
production in establishing the value of his maintenance is feather light.”)).
[16]
Nonetheless, we disagree with the Trial Division that crew members in this
case, other than ordinary deckhands, are entitled to recover the wage of the
highest paid Zuanich fleet employee with the same job label such as “assistant
engineer” or “fish captain” based on crew rosters alone. These terms are too general; the Trial
Division made no finding of fact that such generalities were reflective of the
actual computation of these crew members’ wages. To the contrary, the Court stated “[t]here
appears to be little debate that for the most established positions aboard a
tuna boat captain, engineers, helicopter pilots, deck boss, cook,
etc.), these factors [rank, job classification, duties and ability]
will, by definition, all be [capable of comparison] from boat to boat and from
fleet to fleet.” TCW, 3 A.S.R.3d at 169.
Therefore, the Court’s determination that “each member of the [c]rew is
[equal] to his counterparts throughout the Zuanich fleet, within the meaning of
the Ninth Circuit’s decision in Chloe Z,”
id. at 173, is clearly erroneous in light of the crew’s burden of proving
its case by a preponderance of the evidence and the lack of facts that would
support the finding that crew members, other than ordinary deckhands, were
“interchangeable” without reference to their rank, job classification, duties
and abilities. Instead, it would have
been helpful, for example, if these crew members had correlated themselves to
someone in the fleet with the same rank, job classification, duties and ability
(whether contained in his job description or not). This is not too much of a burden on these
crew members in light of the monetary import of entitlement to statutory wages
under Section 11107.
On
cross-appeal, the crew members argue for
a literal reading of the statute and a conclusion that they are entitled
to whatever the highest wage rate is at the port at issue, regardless of what
kind of job that person holds. Section
11101 is ambiguous as to exactly whose wages at the port in question should be
used as a substitute for the seaman engaged without fishing articles. It says “the highest rate of wages at the
port from which the seaman was engaged or the amount agreed . . . whichever is
higher.” The crew’s reading, however, is
patently absurd, as the phrase “whichever is higher” would have no meaning:
someone at the port (e.g., the chief executive officer of a shipping company,
etc.) will always have a wage higher than the one a crew member was promised as
a seaman. In any event such a holding is
foreclosed by Chloe Z, 125 F.3d 1333.
Therefore, we
reverse the Trial Division’s ruling other than the deckhands, that the crew’s prima facie showing of comparability
proved their case by a preponderance of the evidence.
VI.
[17] Finally,
TCW argues that the Trial Division erred in awarding the crew wages for the
time they spent waiting in port for what was to be the Kassandra Z’s final voyage before
the ship’s arrest. The Trial Division
awarded fourteen crew members wages for the period of November 21, 1996 through
July 2, 1996, the time between the end of the 215th trip and the time the Kassandra Z was arrested. The Trial
Division awarded wages based on the doctrine of quantum meruit, which awards a plaintiff an amount equal to the
value of the benefit he has provided to protect against the unjust enrichment
of the beneficiary. Restatement (Second)
of Contracts § 370 (1981).
[18] TCW
argues that tuna fishermen are not ordinarily paid wages for in-port wait time,
and that there was little or no work performed by the crew during this period. Whether fishermen are ordinarily paid wages
for time spent waiting in port is irrelevant to the question whether the crew
can recover in quantum meruit
for the value of the benefit they conferred upon the Kassandra Z and its owners.
Moreover, the Trial Division found that “the [c]rew was indeed active in
maintaining the vessel and preparing it for its next fishing voyage.” TCW,
3 A.S.R.3d at 179. The Trial Division found that the crew was instrumental in
keeping the vessel in working order, which was valuable even if the imminent
voyage never materialized because it maintained a higher price upon judicial
sale of the vessel than would have been realized if the vessel were
run-down. This finding is not clearly
erroneous, and thus we hold that it was not error for the Trial Division to
award recovery in quantum meruit for in-port waiting time.
[19]
We next turn to the method the Court used in calculating the quantum meruit damages owed to the crew. The Court multiplied 43 days (the number
spent waiting) by an “average daily catch” (as if the crew had been fishing),
which it found to he 14427 tons; and multiplied this amount (619.93 tons) by
the rate it determined to be the highest rate of wages paid to a comparable
“seaman.” Id. at 185. This calculation
cannot be correct because quantum meruit is an award based on the actual
value of the benefit conferred, not the hypothetical benefit that might have
accrued (catching a certain tonnage of fish) had the ship taken a last
voyage. Furthermore, the statutory wage
provision of Section 11107 (highest rate of wages at the port of engagement)
cannot come into play in the calculation of an award for benefits conferred
during the in-port waiting time. Section
10601 (whose violation results in an award of statutory wages under Section
11107) provides that a written fishing agreement shall be made “before
proceeding on a voyage.” 46 U.S.C. §
10601. The Kassandra Z did not “proceed on a voyage” after
Trip 26 (the last before the ship was arrested), so Section 10601 could not
have been violated, nor Section 11107 implicated. We therefore reverse the Trial Division’s
decision regarding the method of calculating the quantum meruit award, with direction to find
facts and make a calculation of the benefit conferred upon the Kassandra Z by the crew’s efforts in
those 43 days.
[20]
TCW argues that even if quantum meruit recovery is warranted, it cannot
be awarded in rem against the sale
proceeds of the ship. However, American
Samoa law allows in rem recovery against a vessel of a quantum meruit
award. Zuguin v. M/V Captain M.J. Souza, 23 A.S.R.2d 7, 10 (Trial Div.
1992). Zuguin permitted a helicopter pilot engaged to prepare a ship for a
voyage to recover in quantum meruit
in an in rem proceeding against the vessel where the mechanic had quit
prior to the planned voyage. Id. at 10-11. We therefore hold that the Trial Division may
allow in rem recovery of the quantum
meruit award.
VII.
In summary, we
affirm the Trial Division’s award of wages under Section 11107 for ordinary
deckhands, the grant of priority to these wages over TCW’s preferred ship
mortgage, and the allowance in rem award of quantum meruit
damages for services performed while the Kassandra Z was in harbor.
We reverse the
Trial Division’s decision allowing the crew, other than the ordinary deckhands,
to prove comparability by prima facie
showing only, and its method of calculating the quantum meruit recovery owed to the crew for
in-port waiting time.
We remand for
the Court to conduct such further hearings as the Trial Division wishes in
keeping with our decision. No costs.
It
is so ordered.
**********
The Honorable J. Clifford Wallace, Senior Circuit Judge, United States Court of
Appeals for the Ninth Circuit, sitting by designation of the Secretary of the
Interior.
The Honorable Susan Oki Mollway, District Judge, United States District Court
for the District of Hawaii, sitting by designation of the Secretary of the
Interior.