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., INC., Defendant in Personam.
_______________________________
AND RELATED CLAIMS-IN-INTERVENTION.
High Court of
Trial Division
CA No. 92-96[4ASR3d155]
May 1, 2000
[1] Under T.C.R.C.P.
54(d), costs are allowed as of course to the prevailing party unless the court
otherwise directs.
[2] A plaintiff recovering a judgment is a prevailing party
to whom costs are owed, even though he may fail to sustain all of his claims in
the action.
[3] A.S.C.A. § 43.0101 (a) requires that costs be in an
amount which is reasonable, fair and just compensation for the service
rendered.
[4] Parties may not normally collect fees as witnesses,
even where they are also witnesses for other parties.
[5] Expert witness fees, interpreter fees, and deposition
costs are generally limited by statute, and taxation of costs in excess of
these amounts are outside a court’s discretion unless expressly authorized by
statute.
[6] Attorney travel expenses are not allowable as
costs.
[7] A party may recover expenses for service of process in
the amount of what a marshal would have charged.
[8] T.C.R.C.P. 59(a) does not specify the grounds for a new
trial, but in nonjury actions, a new trial may be granted where the record
shows a manifest error of law or fact; and a court may alter or amend judgment
under T.C.R.C.P. 59(e) if it has made a clear error of law or fact.
[9] A void contract is a legal nullity, and cannot serve as
the basis for equitable estoppel; while a voidable contract may be affirmed by
the parties and rendered valid by the doctrine of estoppel—parties to a
transaction conceded to be fair and supposed to be lawful, on the faith of
which many other transactions have been entered into, are estopped from
questioning its validity and repudiating the transaction to the injury of
others.
[10] Although the starting point for interpretation of a
statute is the language of the statute itself (and absent a clearly expressed
legislative intention to the contrary, that language must ordinarily be
regarded as conclusive), the court may also consider the wrong the statute
seeks to prevent.
[11] Under 46 U.S.C. § 11107, oral fishing agreements are
void. [4ASR3d156]
[12] As a general principle of maritime law, a seaman who
falls ill or is injured during a voyage is entitled to maintenance, cure, and
wages for the remainder of the voyage.
[13] Under 46 U.S.C. § 11107, when read in light of the
larger statutory scheme, the Seamen Protection and Relief Act, and together
with 46 U.S.C. § 10601, ships’ masters are not entitled to statutory wages.
[14] A determination by the court regarding the award of
prejudgment interest lies soundly within its discretion.
[15] Under T.C.R.C.P. 32(a)(3), a deposition is excludable
when the deponent is not shown to be unavailable.
[16] Under T.C.R.C.P. 32(a)(4), if a portion of a
deposition is used by a party, an adverse party may require him to introduce
any other part which ought in fairness to be considered with the part
introduced.
[17] Absent statutory authorization, a prevailing party in
an admiralty case is generally not entitled to an award of attorney fees
[18] Under T.C.R.Ev. 201(d), a court shall take judicial
notice of an adjudicative fact if requested by a party and supplied with the
necessary information; an adjudicative fact is one not subject to reasonable
dispute.
[19] Although under Fed. R. Civ. P. 62(d), a party
appealing the order of a district court involving a money judgment is entitled
to a stay of that judgment as a matter of right upon posting of a supersedeas
bond, under A.S.C.A. § 43.0803 and T.C.R.C.P. 62(d)), a stay upon posting of a
supersedeas bond is not a matter of right, but is subject to the discretion of
the court, and a court should not grant a stay of judgment pending appeal
automatically or casually, but for cause shown.
Before KRUSE, Chief Justice, and TUA`OLO, Chief Associate
Judge.
Counsel: For Plaintiff TCW, Craig Miller and Barry
For
Plaintiffs-in-Intervention Michael Datin, et al., William
Banning and William
H. Reardon
For Intervenor A.
Sardina, Brian M. Thompson
ORDER ON CROSS MOTIONS FOR RECONSIDERATION
AND VARIOUS OTHER MOTIONS
Procedural History
On December 2, 1999, a hearing was held in this matter on
numerous motions filed by Plaintiff TCW Special Credits, Inc. (“TCW”) and [4ASR3d157] Plaintiffs-In-Intervention
Michael Datin, et. al. (“Crew”) with counsels Banning, Reardon, Rose and
Thompson present. A brief description of
those motions, in order of filing date, follows:
1. Crew’s Bill of
Costs, filed October 28, 1999.
2. Crew’s Motion for Reconsideration or New Trial, filed
October 29, 1999. The Crew alleges a
multiplicity of errors in the Court’s opinion and order of October 20, 1999.
3. The Crew’s Request for Judicial Notice, filed October
29, 1999. The Crew requests that the
Court take judicial notice of three documents relating to its Motion for
Reconsideration or New Trial.
4. TCW’s Motion for Reconsideration or New Trial, filed
November 1, 1999. In this motion, TCW
alleges errors in the Court’s rulings regarding the award of quantum meruit
to the Crew for the time period between the end of trip 26 and the arrest of
the vessel, the shifting to TCW of the burden of proof concerning comparable
seamen for purposes of statutory wage calculations, and the status of the
auction fee.
5. TCW’s Motion for Partial Stay of Execution of Judgment,
filed November 1, 1999. TCW asserts that
if funds are distributed to the Crew, and TCW prevails on appeal, TCW will be
unduly burdened in its attempts to recover those funds. TCW accordingly requests a stay of execution
of judgment, and also seeks a waiver of the supersedeas bond requirement.
6. TCW’s Motion for Clarification, filed November 2,
1999. TCW seeks clarification from the
Court as to whether the $53,121.75 paid broker Michael McGowan is included in
the $90,015.00 assessed by the Court as auction fees.
7. TCW’s Motion for Order Approving Disbursement of Funds
and for Determination of Attorney Fees and Costs, filed November 12, 1999. TCW stipulates to a distribution of
$457,657.60 in partial satisfaction of judgment but seeks to condition this
distribution on the Court’s examination of the Crew’s legal fees.
8. Crew’s Request for Sanctions against TCW, filed November
29, 1999.
The Crew argues that TCW’s motion concerning legal fees is
meritless because the Court denied a similar motion on May 7, 1999.[4ASR3d158]
Analysis
I. Crew’s Bill of
Costs
[1] Appellate Court Rule 39(d) “requires that a
party who desires costs to be assigned shall state them in an itemized and
verified bill of costs which shall be filed with the clerk, with proof of
service, within 14 days after the entry of judgment.” Pene v.
Bank of Hawaii, 18 A.S.R.2d 75, 76 (App. Div. 1991). The Crew has met this requirement by filing
its bill of costs on October 28, 1999.
“Except when express provision therefor is made either in a statute of
A. Prevailing
Party
The threshold question is whether the Crew is “the
prevailing party” under T.C.R.C.P. 54(d).
TCW argues that the Crew cannot be considered to have prevailed for
three reasons: first, the Crew did not
prevail on all the issues before the Court; second, the Crew recovered roughly
less than a third of its claimed damages; and third, the Crew would have been
better off accepting TCW’s settlement offers than in proceeding to trial.
[2] The Crew has clearly, on the whole, prevailed
against TCW in this lawsuit. A plaintiff
recovering a judgment is a “prevailing party” to whom costs are owed, even
though she may fail to sustain all of her claims in the action. Kaiser Indus. Corp. v. McLouth Steel Corp.,
50 F.R.D. 5, 8 (D.C.Mich. 1970) (citing 6 James Wm. Moore et al., Moore’s Federal
Practice ¶ 54.70[4] (3d ed. 1999)); see also Simmons v. Am. Export
Lines, Inc., 26 F.R.D. 111, 112 (D.C.N.Y. 1960) (where plaintiff
prevailed on one of three issues, plaintiff recovered one-third of its
costs). Accordingly, the Crew may recover
costs under T.C.R.C.P. 54(d).
We take note of a few principles before beginning the
piecemeal analysis of the Crew’s costs.
First, the Court notes that T.C.R.C.P. 54(d) provides wide discretion in
the apportionment and taxation of costs.
See, e.g., Jones v. Schellenberger, 225 F.2d 784, 794 (7th
Cir. 1955). Guiding this discretion is
the rule that costs are not equivalent to expenses, but include only such
statutorily enumerated items as court fees and witness fees. Hairline Creations, Inc. v. Kefalas,
664 F.2d 652, 655-56 (7th Cir. 1981).
The Court also recognizes that items proposed by winning parties as
costs should always be given careful scrutiny.
Farmer v. Arabian Am. Oil. Co., 379
[3] Although TCW is correct in stating that the
Court is not obligated to follow federal law in determining the validity of
costs, its argument that the Court should utilize a more stringent standard is
not convincing. A.S.C.A. § 43.0101(a)
requires that costs be “in an amount which is reasonable, fair and just
compensation for the service rendered.”
We fail to see how this standard is any more conservative than the
reasonableness standard used by federal courts in awarding costs under 28
U.S.C. § 1920. We shall accordingly
utilize 28 U.S.C. § 1920 and its accompanying caselaw to examine costs
proffered by the Crew.
B. Witness Fees
for Parties who were also Witnesses
[4] We turn first to witness fees sought by the Crew
for Branko Gregov, Tonci Jusic, Guillermo Gonzalez, and Gojko Milisic. These four were all parties in intervention
to the case. 28 U.S.C. § 1920(3)
admittedly makes no distinction between party and non-party witnesses. “The general rule, however, is that ‘parties
may not normally collect witness fees.’”
Haroco v. Am. Nat. Bank & Trust of Chicago, 38 F.3d
1429, 1442 (7th Cir. 1994) (citing Barber v. Ruth, 7 F.3d 636,
646 (7th Cir. 1993)); see also Hodge v. Seiler, 558 F.2d 284, 287
(5th Cir. 1977). The Crew argues that
witness fees should be allowed for these four parties because they were also
witnesses for other parties to the case.
While these parties may have played multiple roles, the Crew offers no
argument for establishing an exception to the general rule disallowing costs for
parties who are also witnesses. We decline
to make such an exception and instead agree with the Ninth Circuit that “the
expenses of witnesses who are themselves parties are not taxable.” Evanow v. M/V
C. Expert Witness
Fees
[5] Expert witness fees are generally limited by
statute, and taxation of costs in excess of these amounts are outside a court’s
discretion unless expressly authorized by statute. Crawford Fitting Co. v. J.T. Gibbons, Inc.,
482
D. Interpreter
fees in the Deposition of Goran Milisic
28 U.S.C. § 1920(6) specifically allows recovery of costs
for interpreters [4ASR3d160] and
special interpretation services. The
Crew is thus statutorily authorized to recover costs arising out of interpreter
Ivanka Gavrilovic Smith’s services in the deposition of Goran Milisic. TCW asserts, however, that because this
deposition was never used at trial, the interpretive services involved in its
preparation cannot be taxed as costs.
The issue of whether the interpreter’s fees should be allowed as costs,
however, depends on whether the deposition was reasonably necessary at the time
it was taken, not whether it was used at trial.
See, e.g., Kaiser Industries Corp. v. McLouth Steel Corp., 50
F.R.D. at 9; Bennet Chem. Co. v. Atl. Commodities, Ltd., 24
F.R.D. 200, 205 (D.C.N.Y. 1959).
“Whether a deposition or copy was necessarily obtained for use in the
case is a factual determination to be made by the [trial] court.” Fogelman v. Aramco, 920 F.2d
278, 285-86 (5th Cir. 1991). The burden
of proof rests on the challenger to demonstrate that a deposition was
unnecessary or that costs were unreasonable.
See, e.g., Kern County v. Ginn, 194
E. Depositions
28 U.S.C. § 1920 permits deposition expenses to be awarded
as costs. Alflex Corp. v.
Underwriters Lab, Inc., 914 F.2d 175, 177-78 (9th Cir. 1990). TCW is correct in stating that the Ninth
Circuit Court of Appeals has upheld decisions of district courts that deny
costs for depositions solely because they were not used at trial. Wash. State Dept. of Transp. v. Natural
Gas Co., 59 F.3d 793, 806 (9th Cir. 1995) (holding that such a
decision was within the trial court’s discretion). The Ninth Circuit has never, however, stated
that costs for depositions not used at trial should be denied as a general
rule. We follow the majority of
jurisdictions in allowing the recovery of costs of depositions, whether or not
used at trial, if the taking of the deposition seemed reasonably necessary at
the time it was taken. LaVay Corp. v.
Dominion Fed. Sav. & Loan Ass’n, 830 F.2d 522, 528 (4th Cir. 1987); Fogelman
v. Aramco, 920 F.2d at 285; Soler v. Waite, 989 F.2d 251,
254-55 (7th Cir. 1993). As stated above,
the reasonable necessity of the deposition must be disproved by the
challenger. TCW has failed to argue that
the depositions were not reasonably necessary; their expenses will accordingly
be taxed as costs.
F. Attorney
Travel Expenses
[6] TCW is correct in stating that attorney travel
expenses are not allowable as costs.
However, TCW does not indicate specific travel expenses for which the
Crew’s attorneys seek reimbursement, and the Court has been unable to locate
any such expenses in the Crew’s Bill of [4ASR3d162]
Costs.
G. Cost
Apportionment for Depositions of Thomas Meneghini and Narciso Castro
TCW asserts that the depositions of both Thomas Meneghini
and Narciso Castro concerned multiple cases, and that the costs related to
these depositions should be allocated among these cases accordingly. The Crew does not dispute the general
principle of allocation, but merely argues that both depositions concerned
matters pertinent to the present case.
We will accordingly examine the depositions and allocate costs based
upon their content.
From the transcript of the deposition of Thomas Meneghini,
volume II, taken on March 22, 1999, offered by the Crew as exhibit 2, it
appears that the deposition covered both the Chloe Z and the Kassandra Z
cases. The testimony regarding the Chloe
Z may have been useful in this case, but it is obviously more pertinent to the
Chloe Z matter. The Court having no more
information regarding the relative amount of the deposition spent on each case,
it will split the costs of this deposition equally between the two cases. This results in an award of $2,272.84 for the
depositions of Meneghini, leaving $2,272.84 to be subtracted from the total
bill of costs submitted by the crew.
From the transcript of the deposition of Narcisco Castro,
taken March 20, 1999, it appears that the deposition concerned only the present
case. The costs of the deposition will
therefore be allowed.
H. Process Server
Fees
[7] TCW asserts that costs should not be allowed for
service of process on parties who were not deposed or called at trial, but it
cites no authority to support this proposition.
The Crew similarly offers no support for its assertion that private
process server fees are properly allowed as costs. The Ninth Circuit has held that private
process server fees may be taxed as costs under 28 U.S.C. § 1920(1). Alflex Corp., 914 F.2d at
178. The Second Circuit flatly
disagrees.
I. Conclusion and
Award of Costs
The Crew has requested an award of $69,838.46 in
costs. Subtracting the above figures
from this proposed award, we award the Crew $28,343.74 in costs.
II. Crew’s Motion
for Reconsideration or New Trial
A. Grounds for
Reconsideration or New Trial
[8] T.C.R.C.P. 59(a) does not specify the grounds
for a new trial, but in nonjury actions, a great majority of federal
jurisdictions hold that a new trial may be granted where the record shows a
manifest error of law or fact. See,
e.g., Milwee v. Peachtree Cypress Inv. Co., 510 F. Supp. 284, 290
(D.C.Tenn. 1978), aff’d 644 F.2d 885 (6th Cir. 1981). In the alternative, a court may alter or
amend judgment under T.C.R.C.P. 59(e) if it has made a clear error of law or
fact. See, e.g., Knepp v. Lane,
859 F. Supp. 173, 175 (E.D.Pa. 1994).
The standard for either reconsideration or new trial being thus
essentially identical, we will examine our prior order for clear errors of law
or fact.
B. Statutory
Wages for Trips 16-24
[9] “Void” and “voidable” contracts are two very
different legal animals. 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 Crew and KZFC were void, partial payment on their terms does not constitute
a bar to the recovery of statutory wages under 46 U.S.C. § 11107. A voidable contract, on the other hand, may
be affirmed by the parties and rendered valid by the doctrine of estoppel. Parties to a transaction conceded to be fair
and supposed to be lawful, on the faith of which many other transactions have
been entered into, are estopped from questioning its validity and repudiating
the transaction to the injury of others.
Branch v. Jesup, 106
Thus, the deciding factor in awarding statutory wages for
trips 16-24 is whether Congress, by using the word “void” in 46 U.S.C. § 11107,
actually meant void rather than voidable.
The Court has reconsidered its holding on this matter and has decided
that it made a clear error of law in construing the oral agreements as voidable. The statutory scheme mandates that void be
given its literal meaning, and as a result, the majority of the Crew will
recover statutory wages for trips 16-24.
[10-11] “The starting point for interpretation of a
statute ‘is the language of the statute itself.
Absent a clearly expressed legislative intention to [4ASR3d163] the contrary, that language must ordinarily be regarded
as conclusive.’” Kaiser Aluminum v.
Bonjorno, 494
Taking each factor in turn, the plain language of the
statute says that the oral fishing agreements in this case were “void.” 46 U.S.C. § 11107. While not determinative, this language
obviously weighs in favor of finding the oral agreements for trips 16-14 void.
Courts examining the purpose of statutory wage recoveries
under 46 U.S.C. § 11107 have decided that the statute is intended, in part, to
penalize ship owners. Seattle-First
Nat’l Bank v. Conaway, 98 F.3d 1195, 1198 (9th Cir. 1996) (citing Bjornsson
v. U.S. Dominator, Inc., 863 P.2d 235, 238-40 (
On the other hand, the following proposition concerning the
statute’s reach argues for the opposite result.
A distinction may also be made between statutes which
forbid certain contracts to be made or certain acts to be done and those which
prescribe a certain mode and manner of doing the act, or the procedure to be
followed in making the contract, the inference being that a violation of a
statute of the latter kind does not necessarily render a contract void.
The class of persons sought to be controlled by the
statutory scheme is comprised of shipowners and masters on board comparatively
large fishing vessels, both of whom are responsible for ensuring that fishing
agreements are in writing. We are
uncertain as to what effect this [4ASR3d164]
determination should have on the void vs. voidable decision, but if we consider
the class of persons sought to be protected, seamen’s status of wards of
admiralty also argues for affording them maximum protection, and thus statutory
wages, under the statute by holding any oral fishing agreements to be void. See, e.g., Cox v. Roth, 348
Consideration of the wrong the statute seeks to prevent, on
the other hand, argues for finding the contract merely voidable rather than
void. The primary harm the statute seeks
to prevent is the failure to pay seamen fair wages for their services. It does not entitle seamen to recover penalty
wages. TCW Special Credits v. Chloe Z
Fishing Co., 129 F.3d 1330, 1332 (9th Cir. 1997). The Crew having received fair compensation
for their services, this Court’s award of compensatory wages for the difference
between agreed wages and those actually paid comports with the statute’s
compensatory intent.
In terms of legislative history, the two relevant
Congressional reports shed but little light on this issue. The portion of the section-by-section
analysis of House Report 98-338 treating § 11107 states that “Section 11107
entitles seamen engaged contrary to any United States law to leave the service
of the vessel without loss of wages.” We
infer from this analysis that the legislative intent underlying § 11107 is to
ensure only that seamen are compensated for their work. This goal would be served by holding the
Crew’s oral agreements to be voidable, and thus grounds for estoppel.
However, the effect of holding the oral agreements merely
voidable would be to allow shipowners to avoid using written fishing agreements
with impunity. Without the threat of
statutory wages, there appears to be little incentive for ship owners to
provide written fishing agreements.
Seamen will likely not know their rights under the statutes prior to
sailing. Even if apprised of these
rights, they will likely not be able to go without pay for long periods of time
and will be forced by economic circumstances to accept wages on the ship
owners’ terms. If the owners are
subsequently held to owe only agreed wages, their failure to offer written
fishing agreements entails no legal consequences.
Granted, this case does not seem to present such a
situation, but this Court’s prior order would bar statutory wages in a case
where crewmembers accepted a portion of agreed wages and subsequently sued
under 46 U.S.C. § 11107 at their earliest opportunity. Failing to award statutory wages in such a
case would jeopardize the well-being of seamen and contravene the purpose of
the statutory scheme. Accordingly, the
Court amends its order to award statutory wages to the Crew for trips 16-24,
less wages already received for those trips.
Gojko Milisic and Raymond Falante will not, however, receive statutory
wages [4ASR3d165] for these trips
for reasons described more fully in subsection E, infra.
This Court awarded a sum of
$54,346.18 to the Crew for “short checks,” the difference between wages
received and agreed wages, for trips 16-24.
TCW Special Credits, Inc. v. F/V Kassandra Z, 3 A.S.R.3d 163, 185
(Trial Div. 1999). This amount is to be
replaced by damages calculated according to statutory wages for the same
trips. The Court has ruled on the rate
of wages per ton to be used in this calculation at pages 34-35 of its prior
order. These are:
Fish Captain $45.00 (Yolanda Z)
Master $25.00 (Yolanda Z)
Chief Engineer $29.00
(Larry Z)
Assistant Engineer $17.00 (Soleil Z)
Helicopter Pilot $13.00 (Chloe Z)
Deck Boss $15.00 (Kassandra Z)
Cook $10.50 (Kassandra Z)
Seaman/Deckhands $11.50 (Larry Z)
These rates, multiplied by
the adjusted tonnage for trips 16-24, produce statutory wages owed the Crew for
these trips. We rely on Trial Exhibit
23, in this instance utilizing the calculations present at Tab 23. This exhibit breaks down damages calculated
according to the “Highest Wage Paid by the Fleet Times the Discounted Weight
Per Settlement Sheets” for each crewmember for each trip. Totals for each crewmember for trips 16-24,
excluding Raymond Falante and Gojko Milisic, follow:
Ante Didak $14,589.47
Dragan Gobin $16,896.90
Guillermo Gonzalez $59,986.12
Elvir Jakicevic $43,340.11
Tonci Jusic $44,045.60
Marjan Matulic $35,495.28
Todor Matulic $35,065.11
Mirislav Pavic $38,313.76
Arsen Pherhat $38,848.45
Zoran Ramov $44,617.28
Goran Strucic $24,343.27
Dragon Drazic $22,589.80
Ante Dragovic $37,024.48
Goran Milisic $11,004.91
Goran Uzelac $40,427.85
Dragan Blaslov $12,597.71
Venci Matulich $11,491.47
Branko Gregov $26,340.07
Nino Sarin $19,962.12
Zarko Skific $26,340.07[4ASR3d166]
Andrew White
$ 5,671.49
TOTAL $608,991.32
The above total represents
the amount due crewmembers, calculated with statutory wages according to 46
U.S.C. § 11107 for trips 16-24, excluding Raymond Falante and Gojko Milisic.
For reasons discussed below
in subsection E, infra, Raymond Falante and Gojko Milisic, as masters,
are not entitled to statutory wages under 46 U.S.C. § 11107. Their award for trips 16-24 will accordingly
be based on Trial Exhibit 52, which lists unpaid agreed wages due each
crewmember for each trip. As in our
Opinion and Order at page 33, we adjust the tonnages shown in this exhibit in
favor of the Crew by adding 203.5 tons for trip 17 and 83.9 tons for trip
18. After adding their unpaid wages for
trips 16-24, we arrive at the following awards:
Falante, Raymond $
6,182.60
Milisic, Gojko $16,976.00
C. Raymond Falante’s Wage Claim for Trip 23
[12] The Court recognizes a
clear error of law in its determination that Raymond Falante should not receive
wages for the 180 tons of fish caught while he served as fish captain during
trip 23. Cases are legion that assert,
as a general principle of maritime law, that a seaman who falls ill or is
injured during a voyage is entitled to maintenance, cure, and wages for
the remainder of the voyage. See,
e.g., Aguilar v. Standard Oil Co., 318 U.S. 724, 731-32 (1943); Lipscomb
v. Foss Maritime Co., 83 F.3d 1106, 1108-09 (9th Cir. 1996); Berg v.
Fourth Shipping Assoc., 82 F.3d 307, 309 (9th Cir. 1996); Gardiner v.
Sea-Land Service, Inc., 786 F.2d 943, 946 (9th Cir. 1986); Dragich v.
Strika, 309 F.2d 161, 163 (9th Cir. 1962).
TCW asserted during the
Hearing on Motion for Reconsideration that paying two persons for the same job
was not customary practice in the industry.
Similarly, Trial Exhibit 53 shows that KZFC believed it should only be
paying one person. Be that as it may,
this position runs contrary to well-established maritime law and thus
constitutes a clear error that the Court must correct at this point in time.
According to the rule cited
above, Fish Captain Milisic was legally entitled, under general maritime law,
to the wages paid him for the 180 tons of fish in question, even though he left
the ship due to illness before these fish were caught. Seeing as Raymond Falante was serving as fish
captain when the fish were actually caught, he too is entitled to fish captain
wages for the same 180 tons of fish.
Thus, the Court accordingly awards Raymond Falante payment due on this
claim in the amount of[4ASR3d167] $7200.00, being 180 tons at the agreed wages
of $40.00 per ton.
D. Highest Rate of Wages Issue & Adjusted
Tonnage
The Court affirms its
interpretation of “rate of wages” as found within 46 U.S.C. § 11107. Payments made on the basis of gross tonnages
were shown during trial to be anomalous occurrences, and thus do not provide a
legitimate basis for computing the wages of a comparable seaman for purposes of
the statute. The Crew attacks this same
issue from a different angle when it states that because the use of adjusted
tonnages was in dispute, it should not serve as the basis for agreed wages
under 46 U.S.C. § 11107. Again, this
Court disagrees. The preponderance of
the evidence demonstrates that adjusted tonnage is almost invariably the
measure in the industry for calculating wages.
Thus, the “highest rate of wages that could be earned by a seaman at the
port of hire” is properly calculated on the basis of adjusted tonnage. F/V Chloe Z Fishing Co., 129 F.3d at
1333.
E. Raymond
Falante and Gojko Milisic were both Responsible under 46 U.S.C. § 10601 for
Ensuring that Fishing Agreements Complied with the Law
[13] 46 U.S.C. § 11107 does not explicitly exclude
masters from recovering statutory wages under its provisions. However, this section must be read in light
of the larger statutory scheme, the Seamen Protection and Relief Act, of which
46 U.S.C. § 10601 is also a part. Under
§ 10601, “the master or individual in charge of a fishing vessel . . . shall
make an [sic] fishing agreement in writing with each seaman. . . .” It is obvious, from the plain language of the
statute, that Falante, as master of the Kassandra Z, had a duty to make written
fishing agreements.
Although Gojko Milisic was serving as the fish captain,
rather than master, of the Kassandra Z, he was similarly responsible for
ensuring the presence of written agreements.
Milisic held a master’s license, possessed broad authority to hire and
select members of the crew, and acknowledged that he performed “all duties
required by any Master and Fish Captain.”
Response to TCW Written Discovery, 1.9(c), dated October 25, 1998; Tr.
at 25-26, 40. Awarding statutory wages
for a violation of § 10106 to the very people who violated § 10106 would
contravene the well-established legal principle that one cannot benefit from
one’s own violation of the law. Such a
result would also contravene the purpose of § 10106, because it would remove
any incentive to comply with the statute.
That outcome obviously does not comport with the overall statutory
scheme, inclusive of 46 U.S.C. § 11107, and thus Milisic and Falante will not
recover statutory wages for the trips during which they were obliged to provide
written fishing [4ASR3d168] agreements.
F. Interest
Determination
[14] The Crew alleges an abuse of discretion in the
Court’s failure to award prejudgment interest.
An abuse of discretion occurs when a court issues a judgment that has no
foundation in fact or law. Black’s Law Dictionary 11 (6th ed.
1991). The law of this jurisdiction
clearly provides a basis for the denial of prejudgment interest. To reprise, any determination by this Court
regarding the award of prejudgment interest “lies soundly within the court’s
discretion.” See Interocean
Ships, Inc. v. Samoa Gases, 26 A.S.R.2d 28, 43 (Trial Div., 1994)
(citing Orduna S.A. v. Zen-Noh Grain Corp., 913 F.2d 1149, 1157 (5th
Cir. 1990); Masters v. Transworld Drilling Co., 688 F.2d 1013, 1014 (5th
Cir. 1982) (citations omitted)). The
Court remains unconvinced that a failure to award prejudgment interest from the
dates requested by the Crew will constitute a failure in deterrence. The
interest determination is accordingly affirmed.
G. Dates of
Quantum Meruit Award
The Court affirms its decision to award quantum meruit wages
from the date the fish were off-loaded and the vessel was cleaned, May 21,
1996. The Court reiterates that “the
record includes ample evidence to support the common understanding that a
fishing trip is only completed when the catch has been off-loaded to the
cannery and the vessel has been cleaned.”
F/V Kassandra Z, 3 A.S.R.3d at 181. In addition, although the Crew asserts that
the District Court of Guam awarded quantum meruit wages beginning ten days
after the Chloe Z arrived in
H. Rate of Wages
The Crew states that the Court’s setting of wages according
to those of comparable seamen is in error.
The Court directs the Crew’s attention to the Ninth Circuit’s decision
on this issue, which the Court finds to be much more persuasive authority than
that cited by the Crew. F/V Chloe
Z Fishing Co., 129 F.3d at 1334. The
Court accordingly affirms its determination that statutory wages will be set
according to those paid comparable seamen.[4ASR3d169]
I. Comparable
Seamen
The Crew next challenges the Court’s determination of
comparable seamen. While our
determination of comparable seamen is not semantically identical to the ratings
system used by the Ninth Circuit, our justification and purpose are
identical. “Cases construing the
predecessor statutes of 46 U.S.C. § 11107 consistently held that a seaman’s
‘highest rate of wages’ was to be measured against seamen with the same rating or
similar duties.” F/V Chloe Z
Fishing Co., 129 F.3d at 1334 (emphasis added). This Court has accordingly made its best
effort to identify seamen with similar duties for purposes of calculating
statutory wages and affirms these determinations and accompanying calculations.
J. Raymond
Falante’s Deposition
[15] The Court refers the Crew to T.C.R.C.P.
32(a)(3). Raymond Falante was not shown
to be unavailable. His deposition was
therefore properly excluded under this rule.
[16] As for Trial Exhibit 53, T.C.R.C.P. 32(a)(4)
states that if a portion of a deposition is used by a party, “an adverse party
may require him to introduce any other part which ought in fairness to be
considered with the part introduced . . . .”
The Crew failed to establish at trial that the circumstances
regarding the faxing of Exhibit 53 “ought in fairness” have been considered
along with the exhibit itself. It offers
no new arguments in its motion for reconsideration. The document speaks for itself requires no
explanation of the circumstances under which it was transmitted. We therefore affirm our decision to exclude
Raymond Falante’s deposition.
K. Income Tax
Deductions
As TCW does not object to awarding income tax deductions to
Raymond Falante and Guillermo Gonzalez, they shall be awarded unpaid income
taxes in the amounts of $6,608.00 and $1,897.00 respectively.
L. Attorney’s
Fees
[17] Absent statutory authorization, a prevailing
party in an admiralty case is generally not entitled to an award of
attorney’s fees. Interocean
Ships v. Samoa Gases, 26 A.S.R.2d 28, 41-42 (Trial Div. 1994). No statutory authorization exists in this
case, and the Crew has not proven bad faith on the part of TCW sufficient to
convince this Court to impose attorney’s fees.
The Court accordingly affirms its decision to deny the award of
attorney’s fees.[4ASR3d170]
M. Revised Award to
Crew
Statutory Wages for $ 608,991.32
Trips 16-24
(Revised Award)
Raymond Falante & $ 23,158.60
Gojko Milisic’s Wages
for Trips 16-24
Raymond Falante’s $ 7,200.00
Fish Captain Wages
for Trip 23
Income Tax Deductions $ 8,505.00
Trips 25 and 26 $ 74,488.08
(Fish Captain/Master)
Trips 25 and 26 $ 348,278.13
(Remainder of Crew)
Port Wait Time $ 130,805.28
Repatriation $ 19,500.00
Miscellaneous Damages $ 6,627.48
Pre-Interest Total $1,226,553.92
The Court will calculate interest in the same manner as it
did at page 40 of its prior opinion and order.
The Crew is owed 20.93% of the interest accrued on the original deposit
as of the date of this order. This
amounts to $169,601.63, bringing the Crew’s total damages award to
$1,396,155.55.
This sum is to be awarded to individual crewmembers in the
following amounts:
Ante
Didak
$ 32,655.64
Dragan
Gobin
$ 19,233.32
Guillermo
Gonzalez $
86,491.67
Elvir
Jakicevic
$ 67,085.67
Tonci
Jusic
$ 86,630.14
Marjan
Matulic
$ 77,026.24
Todor
Matulic
$ 76,577.34
Mirislav Pavic $ 43,611.59