TCW SPECIAL CREDITS, INC., Plaintiff
v.
F/V KASSANDRA Z, OFFICIAL NO. 6553390,
Her Engines, Nets, Furniture, Etc., Defendant in Rem
and
KASSANDRA Z FISHING CO., Defendant in Personam
_________________________________
AND RELATED CLAIMS-IN-INTERVENTION.
High Court of
Trial Division
CA No. 92-96
[1]
[2]
A seaman retained in violation of the law requiring a written fishing agreement
is entitled to compensation for services rendered at the agreed upon rate, or
the highest rate of wages at the port in which he was [3ASR3d164] engaged,
whichever is higher.
[3]
Even where a written fishing agreement does not exist, the Seaman Protection
and Relief Act does not enable a seaman to accept 95% of his agreed upon wages
and then, years later, seek to retroactively void his unwritten agreement and
claim significantly higher statutory wages.
[4]
The “highest rate of wages” language contained in § 11107 of the Seaman
Protection and Relief Act entitles an aggrieved seaman to the highest rate of
wages paid a comparable seaman, not any seaman.
[5]
All deckhands are not per se comparable, however, a seaman only need make a
prima facie showing of comparability in order to make out a § 11107 claim.
[6]
Where other vessels in same fleet functioned essentially the same, where all vessels
in fleet maintained contact with each other and functioned as a group, where
crewmembers often serve on different vessels throughout fleet, and where
authority of fish captain was consistent throughout fleet it was appropriate to
compare wages of crewmembers throughout fleet for purposes of damages under the
Seaman Protection and Relief Act.
[7]
A ship’s master, or anyone possessing the ship’s master’s responsibilities, may
not recover penalty wages under 46 U.S.C. § 11107 because such individual is
charged with the responsibility of securing written fishing agreements with the
seamen.
[8]
Although case involved many fishermen who had been originally “engaged” to fish
in
[9]
When a seaman performs work for a vessel in reasonable anticipation of a
prospective fishing trip, that seaman is entitled to be compensated for his
services on a quantum meruit basis.
[10]
It is a common understanding in the fishing industry that a fishing trip is
only completed when the catch has been off-loaded to the cannery and the vessel
has been cleaned.
[11]
The fundamental purpose of Seaman Protection and Relief Act is not to penalize,
but rather to compensate seamen for
their wages when a company fails to provide its crew with written
fishing agreements. [3ASR3d165]
[12]
Seamen’s liens for wages take priority over all preferred liens except for
expenses of justice while the vessel is in custodia legis.
[13]
In
[14]
[15]
Absent statutory authorization, the prevailing party in an admiralty case is
generally not entitled to an award of attorney’s fees.
[16]
In exception to the rule that each party bears its own costs exists when a
party is found to have acted in bad faith, vexatiously, wantonly, or for
oppressive reasons.
[17] Where company refused to pay any wages until resolution of
litigation, such action did not rise to level of “bad faith” necessary to
invoke the exception to the American Rule.
Before
KRUSE, Chief Justice, TUA`OLO, Chief Associate Judge, ATIULAGI, Associate
Judge.
Counsel: For Plaintiff TCW,
Craig Miller and Barry
For Plaintiffs-in-Intervention
Michael Datin, et al., William
Banning and William H. Reardon
OPINION AND ORDER
This much-prolonged litigation commenced on July 2, 1996, with the
filing of plaintiff TCW Special Credits’ (“TCW”) complaint in rem and in
personam for foreclosure of preferred marine mortgages, arising out of
TCW’s term loan note from the Kassandra Z Fishing Co., Inc. (“KZFC”), secured
by a preferred ship mortgage on the F/V Kassandra Z (“Kassandra Z”), a vessel
owned by KZFC. Plaintiffs-in-Intervention Michael Datin, et al. (“the Crew”),
members of the crew of the Kassandra Z allegedly owed unpaid wages and other
miscellaneous amounts for several past fishing trips, filed a
complaint-in-intervention on August 16, 1996 and an amended
complaint-in-intervention on October 25, 1996.
Cross-motions for partial summary judgment were filed by the Crew and
TCW on August 14, 1997 and February 25, 1998, respectively, and our order
denying in part and granting in part the motions for partial summary judgment
was issued on July 23, 1998. As will be
discussed further below, in that order we outlined, inter alia, our
interpretation of [3ASR3d166] the
“highest rate of wages” language of 46 U.S.C. § 11107.
In the months that followed our order on partial summary judgment, both
the Crew and TCW filed several motions relative to the discovery process. In
addition, on
The trial of this matter was held
Facts
Although specific facts relevant to any given legal issue will be
discussed throughout the opinion, the basic facts surrounding the operations
and arrest of the Kassandra Z are set forth below.
Built in 1982, the Kassandra Z is a steel-hulled tuna purse seiner
registered at 1651 gross tons. It was a United States flagged fishing vessel,
owned by a Northern Mariana corporation (KZFC), and it operated in the western
Pacific Ocean, using ports in Hawaii, Guam, and American Samoa, with an
official home in Honolulu, Hawaii.
Like its counterparts throughout the western Pacific tuna fishing
industry, the Kassandra Z sailed on individual, consecutively-numbered trips,
each of which involved proceeding from port to the prospective fishing grounds,
spending several weeks or even months fishing at sea, and then returning to
port and off-loading the catch to a cannery.
Crews technically were hired for individual trips, but the majority of
the officers and crew were rehired from trip to trip. The crew lists therefore remain relatively
consistent throughout the time period relevant to this case.
On
Discussion
A. Relevant Federal Statutes
[1] The astounding volume of paper filed in this case notwithstanding, the
legal issues involved are not terribly complex. The parties agree that the
members of the Crew were never given written fishing agreements in violation of
46 U.S.C. § 10601, which reads:
(a) Before proceeding on a
voyage, the master or individual in charge of a fishing vessel, fish processing
vessel, or fish tender vessel shall make a fishing agreement in writing with
each seaman employed on board if the vessel is—
(1) at least 20 gross tons as measured under section 14502 of this
title, or an alternate tonnage measured under section 14302 of this title as
prescribed by the Secretary under section 14104 of this title; and
(2) on a voyage from a port in the
(b) The agreement shall be signed also by the owner of the vessel.
(c) The agreement shall—
(1) state the period of effectiveness of the agreement;
(2) include the terms of any wage, share, or other compensation
arrangement peculiar to the fishery in which the vessel will be engaged during
the period of the agreement; and
(3) include other agreed terms.
[2] In addition, TCW concedes that the terms of 46 U.S.C. § 11107
therefore establish the Crew’s proper remedy:
An engagement of a seaman
contrary to a law of the
See also TCW Special Credits v. Chloe Z Fishing Co.,
Inc., 129 F.3d 1330, 1333 (9th Cir.
1997); Seattle-First Nat’l Bank v. Conaway, 98 F.3d 1195, 1198 (9th Cir.
1996); Bjornsson v. U.S. Dominator, Inc., 863 P.2d 235, 238-40 (Alaska
1993).
Among others and as discussed below, the issues in dispute relate to
specific determinations of which trips should be eligible for § 11107
consideration, which rate of “highest wages” should be used for these purposes,
and how the Crew’s agreed wages were to be calculated. [3ASR3d168]
B. Trips 16-24
As a preliminary matter, we must distinguish certain of the trips made
by the Kassandra Z. The Crew is owed at least some amount of unpaid wages for
11 different trips actually completed, namely trips 16-26,[1]
but the circumstances of the first nine of these trips are vastly different
from those of the latter two.
The evidence at trial established that it was the practice of KZFC—and,
apparently, throughout the western Pacific tuna fishing industry—to pay wages
to its crews in two separate installments. The first was a substantial payment
of 90-95% of wages owed, based on the gross amount of fish off-loaded; the
second payment, known as a “short check,” would cover any remainder owed after
the cannery had an opportunity to determine the quality of the fish and the
percentage of “rejects” (i.e., fish which are too small or high in salt content
to be fit for consumption). Short checks would typically be issued within a few
weeks of off-loading, shortly after the cannery issued its “Final Settlement”
detailing the volume of fish accepted and the price paid to the owners. See, e.g., Tr. at 37-38 (testimony of
Gojko Milisic), Tr. at 2 34-37 (testimony of George John Copitas).
For trips 25 and 26, the Crew received no wages whatsoever, and those
trips are clearly subject to § 11107 analysis.
For trips 16-24, however, the Crew was paid—and accepted—the
initial large check, and is due only the amounts of the short checks which were
never actually tendered, despite repeated assurances from KZFC that they would
soon be forthcoming. Under these circumstances, we do not find it appropriate
or necessary to go back and retroactively void these substantially-completed
contracts.
[3] Although the “Seaman Protection and Relief Act” (of which § 11107 is
part) by its very terms seeks to safeguard the wellbeing of seamen like those
of the Kassandra Z, we do not believe that it envisions a situation in which
crewmembers tacitly acknowledge the terms of their contract by accepting a full
90-95% of their wages, and then turn around and request that those same
contracts be declared void in favor of a higher rate of pay. Rather, we believe
that the statute primarily contemplates one of two common scenarios: a seaman
either is not paid at all (as in trips 25 and 26 herein), or is offered payment
at a wage lower than that which he was promised. In the latter case, we believe
that the seaman may either accept the wage offered or bring a claim under §
11107; he [3ASR3d169] cannot,
however, accept the payment and then, several years later, seek to
retroactively void the contract and claim significantly higher statutory wages.[2]
C. “Comparable Seaman”
[4] Although § 11107 states broadly that a seaman is entitled to receive
the higher of agreed wages or the “highest rate of wages at the port from which
the seaman was engaged,” we held in our July 23, 1998, ruling on partial
summary judgment that this provision is properly construed as entitling the
wronged seaman not to the highest rate paid any seaman, but rather only
to the highest rate of wages of a comparable seaman. Partial Summary
Judgment Order, at 9. This ruling was consistent with the Ninth Circuit’s
ruling in TCW Special Credits v. Chloe 3, Inc., which held that such a
seaman should be awarded the “highest rate of wages that could be earned by a
seaman at the port of hire who has the same rating as the complainant.”
129 F.3d 1330, 1333 (emphasis in original).
When we last reviewed this issue on summary judgment, we were faced
with a very specific issue, identical to that which the Ninth Circuit explored
in the Chloe 3 case: whether § 11107 entitled the lowliest deckhand, who
had agreed wages of approximately $5.00/ton, to be compensated at the captain’s
rate of approximately $40.00/ton — an 800% increase. We found that it did not.
Now, we confront the related but distinct question, “how comparable is
comparable?”
In our prior order, we held that “a comparable seaman includes the
elements of rank, job classification, duties, ability, and other similar
factors.” Order of
At trial, the Crew sought to establish that these men all form a common
[3ASR3d170] pool of labor, and that
they all perform roughly the same duties on an as-needed basis: they help keep
watch for fish, stack the nets, sort and load the fish, assist the engineers,
clean the boat, participate in general maintenance, and perform any number of
other tasks that may be requested of them by the senior officers. In short, in
the Crew’s version of life on a tuna boat, all deckhands are roughly
interchangeable and are therefore “comparable” for purposes of calculating §
11107 statutory wages.
TCW, on the other hand, highlights the different skills and the
spectrum of ability and experience that characterize the crewmembers within
this broad ranking. In accordance with
its theory that each crewmember is unique, TCW implies that there are distinct
positions within the ranks of the deckhands, such as “fish spotter,” “net
stacker” or “assistant skiff boat driver.”
Because one deckhand may have been paid only $5.00/ton while another
might receive fully double that amount, TCW quite logically concludes that
these gradations of pay must relate to factors such as ability and experience,
and that “comparability” within this subset of the Crew must therefore take
these factors into consideration.
The truth, no doubt, lies somewhere between these two extreme
positions. 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, as Fish Captain Gojko Milisic testified. Tr. at 124-26. Similarly, crewmember Goran Uzelac testified
that better pay went to those deckhands who routinely performed specialized
tasks, such as spotting fish from the mast or operating the winch or driving
the skiff boat. Tr. at 313.
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. Tr. at 72-73.
Even when a deckhand did perform one of the more specialized tasks, such
as driving the work boat, upon completion of that single task he would return
to those more general duties shared in common by all seamen. Tr. at 155.
The method of hiring replacement deckhands is particularly illustrative
of the interchangeable nature of these workers. As Fish Captain Gojko Milisic
testified, when a deckhand was not rehired for any reason, the practice was
simply that the “[n]ext seaman just takes the job.” Tr. at 73. 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.
If
deckhands were largely interchangeable but were nevertheless paid vastly
different wages, there must be some factor or factors to account for those
gradations in pay. While we find that
experience and abilities may have played a small role in this process, 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.” Tr. at 124. Another deckhand aboard Kassandra Z was paid
several dollars a ton more than others simply because he was the Fish Captain’s
cousin, and Nilisic testified that this practice was not unusual. Tr. at
125-26. Even those factors which one might presume to be easily quantifiable,
such as experience, turn out to be more complicated. Total experience as a seaman might be
marginally relevant to wages, but loyalty to a particular captain appears
to be much more significant. See, e.g., Tr. at 124-26.
Given these factual circumstances, we are left to determine exactly
what a seaman must prove in terms of “comparability” in order to make out a
successful § 11107 claim. Must he find another seaman, engaged from the same
port, who had “good eyes for spotting fish” (however that may be
defined), had been with his captain for eight years, and generally was not a
“trouble maker”? Must his fellow deckhand track down another seaman who, like
him, happened to assist the skiff boat driver—in addition to his multiplicity
of other more mundane duties—and was also the son-in-law of the fish captain’s
boyhood friend from Croatia?
We think
that to place this kind of burden on a seaman would twist the meaning and
intent of § 11107, making it impossible for that statute to serve its
fundamental purpose, namely, providing a quick and efficient means by which
wronged seamen can get the wages owed to them. As the Crew points out in its
closing trial brief, seamen traditionally enjoy wards of admiralty status, and
the burdens of proof and production allocated to them under various admiralty
claims are, accordingly, relatively minimal. See, e.g., Comeaux v. T. L. James & Co., Inc., 702 F.2d
1023, 1024 (5th Cir. 1983) (seaman’s burden of proving cause in Jones Act cases
is “featherweight”); Yelverston v. Mobile Laboratories, Inc., 782 F.2d
555, 558 (5th Cir. 1986) (light burden of production in non—statutory
maintenance and cure claim); Neathery v. M/V Overseas, 700 F.2d 140 (4th
Cir. 1983) (upon establishing statutory conditions, burden shifts to shipowner
in 46 U.S.C. § 594 claims). We agree
that a [3ASR3d172] similarly light
burden of proof is properly applied in § 11107 cases, particularly given the
nebulous factors which may often comprise a comparability inquiry, as addressed
above.
[5] Moreover, there are practical constraints to be considered. Not
surprisingly, seamen spend the vast majority of their time at sea; to
require a seaman to not only locate his or her “perfect match”—if indeed such a
match exists—but also to contact that individual and procure testimony, would
essentially render § 11107 useless to the average deckhand. As such, we find
that although all deckhands are not per se comparable, the Crew need
only make a prima facie showing of comparability in order to make out a
§ 11107 claim. TCW is then free to rebut by putting forward an alternative
seaman who it believes to be more comparable to the claimant. Unlike
crewmembers, shipowners have far greater access to crew lists and other such
information, and requiring them to find a more comparable seaman than that
proffered by a claimant is reasonable and consistent with the goals of the
statute.
The Crew offers three alternative wage measures for purposes of
determining the highest wages paid to comparable seamen. Those are the highest
rates paid: 1) throughout the western Pacific (including the Gemini fleet); 2)
throughout the Zuanich fleet, including the Kassandra Z herself; or 3) the
Kassandra Z alone. Although John Copitas
did offer extensive testimony regarding the policies and procedures of the
Gemini fleet, we are not satisfied that even general comparability has been
established with regard to that fleet. Unlike the informal procedures which
characterized the hiring of crews on the Zuanich boats, for example, Mr.
Copitas testified that all hiring and firing on Gemini fleet ships was
coordinated by corporate headquarters located in
[6] The Zuanich fleet, however, is another matter.[4] The record contains ample testimony to
establish that the other vessels within this fleet functioned in essentially
the same manner as the Kassandra Z. All vessels in the fleet maintained close
contact with each other and functioned as a “Code Group,” regularly advising
each other of their [3ASR3d173] positions and providing assistance as needed.
Tr. at 75. Crewmembers often fished on several of the Zuanich vessels, and
their duties were substantially similar on each.
Under these facts, the Crew has established general comparability and
has met its light prima .facie burden; because TCW failed to rebut by
offering the court more comparable alternatives, we find that each member of
the Crew is comparable to his counterparts throughout the Zuanich fleet, within
the meaning of the Ninth Circuit’s decision in Chloe Z and this court’s
earlier order on partial summary judgment. The exact measure of damages is
discussed below.
D. Master and Fish Captain
TCW argues that neither the master nor the fish captain should be
permitted to recover statutory wages under § 11107, on the ground that they
were the individuals aboard the Kassandra Z responsible for compliance with
federal statutory law, including the § 10601 requirement that written fishing
agreements be provided to all crewmembers.
In the Chloe 3 case, Judge Unpingco of the U.S. District Court
for Guam ruled on this exact issue, noting that “a master may not seek penalty
wages under 46 U.S.C. § 11107 because failure to follow 46 U.S.C. § 10601 is
caused primarily by his own failure to provide written agreement. . . . [H]e
shall not avail himself of the protection of the statute he was responsible for
adherence.” TCW Special Credits v. Chloe 3, Order of
[7] By its very terms, § 10601 holds a ship’s master accountable for
securing written fishing agreements: “[b]efore proceeding on a voyage, the
master or individual in charge of a fishing vessel . . . shall make an [sic]
fishing agreement in writing with each seaman employed on board.” Even absent
evidence that Master Raymond Falante exercised actual responsibility for such
matters about the Kassandra Z, we believe that just as he enjoys the benefits
of his status as master, he must also bear the responsibilities of such
position. Having failed to ensure compliance with federal statute, he cannot
now benefit from that failure by seeking higher penalty wages.
Unlike
the Chloe Z, on the Kassandra Z the fish captain also held an official masters
license from the United States Coast Guard. In his [3ASR3d174] interrogatory responses, Fish Captain Gojko Milisic
stated that he “performed all duties required by any
Master and Fish Captain,” and his trial testimony confirms that he had broad
authority to select and hire his crews. Response to TCW Written Discovery,
1.9(c), dated
Both Falante and Milisic therefore will be entitled only to their
agreed wages, as set forth more particularly below.
E. The “Tonnage” Calculation
As discussed generally above, seamen are typically paid a particular
fixed wage multiplied by the amount of fish caught, as measured in tons.
Accordingly, the method of calculating “tonnage” directly and significantly
impacts a seaman’s overall compensation, and is therefore an important
component of any wage analysis. The Crew
argues that, for purposes of determining both agreed wages and § 11107
statutory wages, the proper calculation should be based on gross tonnage, less
rejects; TCW maintains that tonnage in both cases should be “adjusted,” with
certain percentage reductions for less profitable sizes and species, less
rejects.
1. Agreed
Wages
The
tonnage calculation with respect to agreed wages involves a straightforward
inquiry regarding the understanding between the Crew and KZFC management. It is undisputed that the Zuanich companies
in fact almost always used adjusted tonnages in calculating wages during the
relevant time period. However, the Crew
maintains that Fish Captain Gojko Milisic always understood tonnage to mean
gross tonnage, and that gross tonnage must therefore be the basis of those
agreements because he was the individual responsible for making the oral wage
agreements with the Crew.
We find that this scenario stretches the bounds of credibility,
particularly with respect to Captain Milisic’s purported lack of knowledge
about tonnage adjustments. As TCW points out, Milisic’s own sworn declaration
of
In addition, the owners of F/V
Kassandra Z adjusted the tonnage according to the size of the fish delivered.
Sometimes [3ASR3d175] we would be
paid 100% for all fish above a certain weight, 90% (or 80%) for medium size
fish and nothing for small fish under three pounds.
Tr. Ex. 15, ¶ 8. In its reply brief, the Crew argues that this
statement reveals only Milisic’s knowledge at the time the declaration was
signed, rather than his understanding during the trips themselves. Further
passages from the declaration, however, belie that assertion. In the same
paragraph, Milisic goes on to state:
This “sliding scale” was changed
by the owners regularly depending upon the prices paid for the fish by the
canneries. We would never know the
exact net adjusted tonnage the company would use in calculating our wages until
long after the trip ended.
In addition,
even though Milisic at trial generally asserted his lack of prior knowledge
about adjustments, he did make several statements to the contrary, confessing
that he understood tonnage calculations to be linked to cannery prices, and
that he was aware of occasional percentage reductions for medium-sized fish.
Tr. at 135, 101. Moreover, common sense suggests that the company’s adjustment
practices, which were standard over the entire relevant period,[5]
must have been known to the Crew. Milisic testified that he frequently
discussed compensation matters both with Lawrence Zuanich and with the other
fish captains throughout the Zuanich fleet, with whom he was in constant
communication. Tr. at 93. He could also
estimate with considerable accuracy (often within 1%) the total tonnage of fish
taken aboard the Kassandra Z on any given voyage; knowing his promised wage per
ton and the amount he actually received for each trip, it is inconceivable that
Milisic could not have been aware of the tonnage reductions. Tr. at 93-94.
In addition,
the evidence presented at trial indicates that the master of the vessel,
Raymond Falante, received at least some documents including [3ASR3d176] information about tonnage
adjustments. Although he couldn’t recall specific interactions with Mr. Falante
or Fish Captain Milisic, Thomas Meneghini testified that it was his practice to
forward all payroll calculations—including tonnage adjustments—to each ship’s
master, so that any questions or discrepancies regarding compensation could be
addressed. Tr. at 397-98. One document, which appears to be a facsimile
entitled “Tonnage for Kassandra Z Trip 23 Payroll—Preliminary Settlement,”
clearly includes a “% Payable” column indicating tonnage adjustments. Tr. Ex.
53. As indicated on the accompanying
covermemo and by a handwritten note on the fax itself, this document was
apparently transmitted to Raymond Falanteon or about
This
document, together with Mr. Meneghini’s testimony, demonstrates by a
preponderance of the evidence that Master ‘Raymond Falante was aware of the
Zuanich adjustment practices, and that the remainder of the Crew was similarly
informed.[6] Agreed wages are to be calculated based on
adjusted tonnages.
2. Statutory
Wages
We also find that the “highest wage” comparison required under § 11107
should be calculated according to adjusted tonnages. As discussed above, we lack sufficient
information to make comparisons with the Gemini Fleet.[7] The Crew did present some evidence suggesting
that gross tonnage payments were made on occasion within the Zuanich fleet, as
in the case of the Chloe 3’s trip number 23B. See Tr. at 414-15
(testimony of Thomas Meneghini); Tr. Ex. 55. However, we are not prepared to
hold that such an isolated incident within the fleet may serve as the basis for
determining the highest wages within the meaning of § 11107.
The record clearly indicates that adjusted tonnages were the standard
measures used within the Zuanich fleet. Moreover, the Ninth Circuit expressed
the same opinion in the Chloe 3 case: [3ASR3d177]
The rate is then multiplied by
the adjusted tonnage of fish caught. [fn. 3] “Adjusted tonnage” is gross
tonnage of fish caught and off loaded, adjusted for species and size, less
cannery rejects.
129 F.3d 1330, 1331 and fn. 3. As we interpret the language of § 11107,
“wage” can only mean that amount paid as standard compensation to a comparable seaman,
i.e., his regular rate of pay. If gross tonnages were used on a single trip of
a single vessel, such payments for that trip should more properly be construed
as a bonus of sorts, rather than the standard “wage” earned by those seamen.
Viewed in another light, the rare payment to seamen based on gross tonnage
could be seen as one of the many variations in the spectrum of “adjustments”
that were unpredictable and varied from trip to trip. Generally, adjustments were at least loosely
based on the prices paid by the cannery; perhaps the cannery had extremely high
demand during that period and the company chose to reward its employees
accordingly? At any rate, we find that percentage adjustments based on size and
species were standard within the Zuanich fleet, and any § 11107 statutory wages
to be awarded must be calculated on that basis.
3. “Rejects”
The final dispute regarding tonnage concerns the issue of “rejects,”
generally defined as “fish people cannot eat,” which were understood to be
excluded from wage calculations. Tr. at 27.
The Crew understood that fish under three pounds are more likely to be
unfit for human consumption due to their high salt content and the greater
likelihood that they could be smashed in the ship’s storage wells. They also
understood that, as a result, those fish fell squarely within the category of
“rejects” for which they would not be paid.[8] Tr. at 36-37, 96-97, 166, 177, 180, 184, 204,
211, 292, 308-10, 319, 336.
The Crew, however, contends that rejects should not include fish under
3 lbs., on the ground that KZFC was in fact paid for such fish on occasion.
Unfortunately, the fact that KZFC may have been paid for these fish does not
alter the basic agreement between the company and the Crew. Although a more
fair system may have mandated payment to the Crew [3ASR3d178]for all fish actually sold to the cannery, there are
legitimate reasons why KZFC may have chosen to not pay for sub-3 lb. fish.
Knowing that these fish were generally far less valuable, it is reasonable to
assume that the company utilized such a system to provide an incentive for the
Crew to load only larger fish. Or, it may have been administratively more
efficient to pay a premium for the more profitable fish and then to pay nothing
for the less lucrative smaller fish. Whatever the reason, the evidence at trial
overwhelmingly confirms the understanding between the company and the Crew that
fish weighing less than 3 lbs. would not be included in the tonnage
calculations; we refuse to upset that understanding by retroactively
compensating the Crew for fish which they knew to be likely rejects and for
which they never expected to be paid.
The analysis with respect to § 11107 statutory wages yields the same
result. Although there may have been a
single trip for which KZFC did pay for these smaller fish, as Fish Captain
Milisic testified, this was not part of the regular wage of any identified
“comparable seaman.” Tr. at 134. We find that nonpayment for fish under 3 lbs.
was indeed the fleet and industry standard, and therefore decline to include
these fish in the adjusted tonnages for purposes of computing § 11107 “highest
wages.” Tr. at 96-97 (testimony of Gojko Milisic).
F.
As noted supra, § 11107 restricts recovery to the highest rate
of wages “at the port from which the seaman was engaged.” TCW argues that
because each and every member of the Crew did not offer testimony regarding his
port of engagement — as well as that of the proffered “comparable seaman” —
their claims must necessarily fail.
We agree that there is a technical difference between port of
embarkment and port of engagement, as the caselaw cited by TCW indicates. Henry
v. S/S Bermuda Star, 863 F.2d 1225, 1237 n.54, 1238 (5th Cir. 1989); Ladzinski
v. Sperling Steamship and Trading Corp., 300 F.Supp. 947, 949-950 n.3
(S.D.N.Y. 1969). Those two cases, however, merely establish the port to which a
sailor is entitled to be returned upon completion or termination of a contract;
neither addresses the issue in the unique context of a § 11107 claim.
[8] In our
view, the “highest wage” provision of § 11107, quite simply, seeks to award a
wronged seaman the highest wage paid to a comparable seaman from within the
same local community of seamen. It is likely that several members of the Crew
may have been technically “engaged” in their home country of
More importantly, the evidence at trial demonstrated that seamen were
hired on a trip-to-trip basis. Tr. at 41. Although there may be an exception
for certain other boats of the Zuanich fleet, each trip of the Kassandra Z and
the other Zuanich boats on which Fish Captain Milisic sailed—including the
Bonnie and the Jennifer—began and ended in
G. Port Wait Time
As
discussed briefly above, the Kassandra Z docked at the conclusion of trip
number 26 on
Gojko Milisic, similarly, testified that he had received regular
assurances from KZFC regarding the company’s financial situation and the
prospects of future fishing:
Q: And what did Cousin John Zuanich tell you about the prospects of
your ability to leave port on Trip 27?
A: He asked me if I’m going out on the next trip, I say yes, and he
said we got problems financially. We get a loan soon. Once we get the loan
final, you guys going to get paid and you’re ready to go fishing.
Q: Now the boat came in on
A: At least once a week.
Q: And what in essence did Mr. John Zuanich tell you week after week
about what you and the crew of Kassandra Z should do while waiting for the
financing to come through for the Z Company?
A Don’t go any
place. It’s almost done
Tr. at 66-67. The company’s pitch to the Crew was also confirmed by a
fax of
I want to assure everyone on board the vessels that we
are very close to finalizing the “deal” with our new invest[ors], we are down
the stretch as they say in English. I realize all of you in Samoa as well as
those in
Tr. Ex. 14 (emphasis added). For Gojko Milisic, as presumably for many
of the rest of the Crew, these assurances resulted in his refusal to seek other
employment—or even to accept other unsolicited job offers—so that he would be
available when the Kassandra Z was once again ready to sail. Tr. at 68-70.
[9] When a seaman performs work for a vessel in reasonable anticipation of
a prospective fishing trip, that seaman is entitled to be compensated for his
services on a quantum meruit basis. In Zuguin v. M/V Captain M.J. Souza,
for example, we found that a helicopter mechanic was properly due his regular
wage for work performed prior to a fishing trip, even though he voluntarily
quit his position due to a wage disagreement. 23 A.S.R.2d
7 (Trial Div. 1992). The Crew’s situation in the instant case is even more
compelling. These seamen did not walk off the vessel in dissatisfaction; they
were thrown off. The Crew is entitled to be compensated for remaining
available to KZFC and for the actual work performed aboard the Kassandra Z
following trip number 26.
Judge Unpingco made a similar finding based on quantum meruit in
the Chloe Z matter. Memorandum Order of