Glynn v. Roy Al Boat Management Corp.

• Decision Date: 21 June 1995
• Docket Number: Nos. 93-15546,93-15681,s. 93-15546
• Citation: 57 F.3d 1495
• Parties: , 64 USLW 2012 Christopher Gerald GLYNN, Plaintiff-Appellant-Cross-Appellee, v. ROY AL BOAT MANAGEMENT CORP.; Daniel J. Shawhan, in personam; F/V No Problem, O.N. 650399, her engines, equipment, appurtenances, catch, in rem; F/V Full Moon, her engines, equipment, appurtenance, cargo freight and catch, in rem, Defendants-Appellees-Cross-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1495

57 F.3d 1495

1995 A.M.C. 2022, 64 USLW 2012

Christopher Gerald GLYNN, Plaintiff-Appellant-Cross-Appellee, v. ROY AL BOAT MANAGEMENT CORP.; Daniel J. Shawhan, in personam; F/V No Problem, O.N. 650399, her engines equipment, appurtenances, catch, in rem; F/V Full Moon, her engines, equipment, appurtenance, cargo freight and catch in rem, Defendants-Appellees-Cross-Appellants.

Nos. 93-15546, 93-15681.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 10, 1994.

Decided June 21, 1995.

Jay Lawrence Friedheim and Joe P. Moss, Friedheim & Moss, Honolulu, HI, for plaintiff-appellant-cross-appellee.

James E. Ross, James E. Ross & Associates, Houston, TX, for defendants-appellees-cross-appellants.

Appeals from the United States District Court for the District of Hawai'i.

Before: FARRIS, BEEZER, and RYMER, Circuit Judges.

Opinion By Judge RYMER ^*

; Dissent by Judge RYMER.

RYMER, Circuit Judge:

These appeals require us to decide who can be an "employer" for purposes of a seaman's suit under the Jones Act, 46 U.S.C.App. Sec. 688, the propriety of punitive damages and attorney's fees awarded on a claim for failure to pay maintenance and cure, and whether the issue of prejudgment interest must be submitted to the jury when a maritime claim is tried by a jury.

Christopher Glynn brought suit under general maritime law and the Jones Act for injuries allegedly suffered as a crew member on board the F/V NO PROBLEM. The vessel was owned by Roy Al Boat Management Corporation, and mastered by Captain Daniel Shawhan. The district court ¹ determined that Roy Al was Glynn's "employer" but left Shawhan's "employer" status for the jury to decide. The jury returned special verdicts against both Roy Al and Shawhan on Glynn's claims for unseaworthiness, negligence, and maintenance. It also awarded punitive damages after finding that Roy Al and Shawhan acted arbitrarily, willfully, and with bad faith in failing to provide maintenance and cure. The district court awarded attorney's fees on the claim for maintenance and cure, but granted judgment notwithstanding the verdict on punitive damages as it believed that punitive damages are unavailable as a matter of law. The court also declined to award prejudgment interest on the ground that it is a question for the jury which Glynn waived by failing to request an instruction. Both parties appeal.

We conclude that the court properly determined that Roy Al, as the vessel owner for whom Glynn worked, was Glynn's Jones Act "employer" because the relationship bears no indicia of a joint venture other than the fact that Glynn's wages were determined by a percent of net profits. We also hold that there can be no more than one "employer" for purposes of the Jones Act. Submitting the question of Shawhan's "employer" status to the jury was therefore error, requiring reversal of the judgment against him for negligence.

On Glynn's cross-appeal we conclude that the district court properly granted JNOV on punitive damages because they are unavailable on claims for unpaid maintenance and cure. Finally, we hold that when a maritime claim is tried to a jury, the issue of prejudgment interest is for it to decide.

As we have jurisdiction under 28 U.S.C. Sec. 1291, we affirm in part and reverse in part.

I

To recover under the Jones Act, ² the plaintiff must show that the defendant was his employer at the time of injury. Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 787 n. 6, 69 S.Ct. 1317, 1319-20 n. 6, 93 L.Ed. 1692 (1949). Although both parties make a number of arguments, the dispute boils down to whether the district court should have instructed the jury that Glynn was "an employee of Defendant Shawhan or Roy Al Boat Management Company, or both ... [and] that it has already determined that as a matter of law plaintiff was an employee of Defendant Roy Al Boat Management Company." As Roy Al, Shawhan, and F/V NO PROBLEM jointly appeal and point no fingers at one another, we are not concerned here with whether one rather than the other should be Glynn's employer. ³ Rather, all contend that the district court went astray by determining that an employer/employee relationship existed as a matter of law. Roy Al maintains that the jury could have found that Glynn was a joint venturer or independent contractor, not an employee. ⁴ Shawhan in turn argues that it was erroneous to submit his status to the jury because, having already found that Roy Al was Glynn's employer, the court could not also let the jury find that he too could be a Jones Act employer. ⁵ Glynn, on the other hand, urges that no reasonable jury could have found that he was a joint venturer or independent contractor, and that he could be employed by Shawhan as well as Roy Al. ⁶

A

We have long held that whether an employer/employee relationship exists is usually a question of fact for the jury, so long as there is an evidentiary basis for its consideration. See, e.g., Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 989 (9th Cir.1987); The Norland (Loe v. Goldstein), 101 F.2d 967, 971-73 (9th Cir.1939). Roy Al contends that the jury could have found that Glynn was a joint venturer based on evidence that Shawhan and the crew were paid percentages out of 100 percent of the net profit, Roy Al managed the joint venture's administrative work and contributed the F/V NO PROBLEM, each crew member's gear was deducted from his share of net profit, Shawhan cut the checks for the crew's share, and Shawhan understood himself to be self-employed.

The facts are not in dispute. When Glynn was hired in late January 1992, Shawhan told him that he was captain, that the boat was owned by Roy Al, and "that we all worked for them." Glynn acknowledged in writing that he had signed on as a crew member of the F/V NO PROBLEM, owned by Roy Al and mastered by Shawhan; that his term of employment would begin upon signature of the document and end after Glynn gave two weeks notice; that he agreed to being compensated 8.3 percent of the net profit for each trip; and that "immediate termination of the job will take place" if caught with alcohol, illegal drugs, or narcotics, and that "all pay due will be confiscated by the captain."

As master, Shawhan gave all orders on the vessel. He told crew members when to show up for work when they were at dock, and set the schedule when they were fishing. He was not an officer or director of Roy Al, and had no charter agreements with it.

Shawhan and Roy Al made the decision to bring the NO PROBLEM to Hawaii. Hawaii Seafood in Honolulu managed the vessel. Bills for fuel, bait, or gear were sent to Hawaii Seafood, which would either cut the checks or forward them to Roy Al for payment; when Shawhan bought supplies himself, he got an advance from Hawaii Seafood after it was authorized by Roy Al. As agreed with Roy Al, Shawhan delivered the fish caught only to Hawaii Seafood.

After calculating the net profit for a fishing trip, Roy Al would keep 50 percent and send a check for the other 50 percent to Shawhan. From his share, Shawhan paid the crew members their agreed percentage of the total net profit. Under this arrangement, Shawhan believed himself to be self-employed.

Glynn's paycheck from the voyage was a personal check written by Shawhan and his wife. Usually Shawhan would purchase new equipment or rain gear for a new crew member and deduct the cost out of his paycheck. In Glynn's case, however, Shawhan provided Glynn with boots to use on the vessel but agreed to let Glynn keep them without charge. Finally, when Glynn showed up late for work while the NO PROBLEM was in dock, Shawhan fired him.

While there is no settled set of criteria for determining whether a Jones Act employment relationship exists, the Supreme Court has indicated that "[o]ne must look at the venture as a whole. Whose orders controlled the master and the crew? Whose money paid their wages? Who hired the crew? Whose initiative and judgment chose the route and the ports?" Cosmopolitan, 337 U.S. at 795, 69 S.Ct. at 1323-24. The Third Circuit similarly focuses on the degree of control exercised over the crew member and looks to factors such as payment, direction, supervision, and source of the power to hire and fire. Matute v. Lloyd Bermuda Lines, Ltd., 931 F.2d 231, 236 (3d Cir.), cert. denied, 502 U.S. 919, 112 S.Ct. 329, 116 L.Ed.2d 270 (1991).

Considering these factors, no reasonable jury could have found that Glynn was anything other than an employee. When he signed on, he was told that he and Shawhan worked for Roy Al. Roy Al and Shawhan decided where the vessel would go. Glynn had no control over when, where, or how long the fishing would occur. He had no say in managing, operating, or supervising the boat or its crew. His contract speaks in terms of compensation and his pay could be confiscated if he were found with contraband. The cost of his gear was not deducted from Glynn's share of the profit. He was hired on, could leave or be terminated, and was indeed fired. All of these facts point to an employment relationship; only the fact that Glynn's compensation was a percentage of net profit supports a finding of joint venture, but payment by shares is not inconsistent with the employer/employee relationship. ⁷ Southern Shell Fish Co. v. Plaisance, 196 F.2d 312, 314 (5th Cir.1952); see Callan v. Cope, 165 F.2d 703 (9th Cir.1948). Under these circumstances, we cannot say the district court erred in holding as a matter of law that Glynn was an employee of Roy Al.

The Norland, upon which Roy Al relies, is not to the contrary. In addition to being paid by shares, the crew in that case decided when and where to fish, and when and where to sell the catch. Moreover, the owner of the boat had nothing to do with the purchase of supplies, food, or equipment. The Norland, 101 F.2d at 970. It was also unclear whether there was a demise charter of the vessel. Id. at 971-72. These factors, which are absent in the instant case,...