Harper v. U.S. Seafoods Lp

• Decision Date: 29 January 2002
• Docket Number: No. 01-35264.,01-35264.
• Citation: 278 F.3d 971
• Parties: Joe HARPER, and the class of similarly situated persons; Alex Morrow, and the class of similarly situated persons; Jason McBride, and the class of similarly situated persons, Plaintiffs-Appellees, v. UNITED STATES SEAFOODS LP; Seafreeze Alaska F/V, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

278 F.3d 971

Joe HARPER, and the class of similarly situated persons; Alex Morrow, and the class of similarly situated persons; Jason McBride, and the class of similarly situated persons, Plaintiffs-Appellees, v. UNITED STATES SEAFOODS LP; Seafreeze Alaska F/V, Defendants-Appellants.

No. 01-35264.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 5, 2001.

Filed January 29, 2002.

Anthony J. Gaspich (argued), Gaspich & Williams, P.L.L.C., Seattle, WA, for defendant-appellant United States Seafoods, L.P.

George H. Luhrs, (argued), Seattle, WA, for plaintiffs-appellees Joe Harper and the class of similarly situated persons, et al.

Jay H. Zulauf (argued), and Christopher S. McNulty, Mundt MacGregor, L.L.P., Seattle, WA, for defendant-intervenor F/T Seafreeze Alaska, and amicus curiae At-sea Processors Association.

Appeal from the United States District Court for the Western District of Washington; Marsha J. Pechman, District Judge, presiding. D.C. No. CV-00-01610-MJP.

Before: O'SCANNLAIN, GRABER, and McKEOWN, Circuit Judges.

OPINION

McKEOWN, Circuit Judge.

This case calls for us to decide whether an admiralty statute that requires the master of a fishing vessel to "make an ... agreement in writing" with each crew-member before a voyage also requires the master's signature on the agreement. 46 U.S.C. § 10601. Although the predecessor statute dates from the late 1770s, surprisingly, this is a question of first impression in the Ninth Circuit. The district court granted partial summary judgment in favor of a seaman who was employed under a contract that the master did not sign. The district court held that the contract was invalid because the statute required this signature. We agree and affirm.

BACKGROUND

Defendant-Appellant United States Seafoods L.P. employed Plaintiff-Appellee Joe Harper on its fishing vessel Seafreeze Alaska in early 2000. The Seafreeze Alaska is a factory trawler that operates out of Alaska, in the Bering Sea. United States Seafoods hired Harper through its Seattle office, and its recruiting and hiring coordinator signed the employment contract on behalf of the company. It is undisputed that the vessel's master did not sign this contract.

Harper and two other crewmembers filed an action on behalf of themselves and a putative class against United States Seafoods L.P. in personam, and the F/T Seafreeze Alaska in rem (collectively, "U.S.Seafoods"), primarily claiming that their contracts were defective.¹ Harper moved for partial summary judgment on the issue of whether his contract was invalid under 46 U.S.C. § 10601. In a carefully considered order, the district court granted the motion, reasoning that the statute unambiguously required the master to sign. Order on Plaintiff's Motion for Partial Summary Judgment, Harper v. United States Seafoods, No. C00-1610P (W.D.Wa. Mar. 8, 2001). Because there was no evidence that the master had in any way participated in drafting the agreement, the court declined to consider whether the statute could be satisfied by some participation short of signing the agreement. The district court specifically declined to rule on "damages, if any." Id. at n. 2.

JURISDICTION

We have jurisdiction in this interlocutory admiralty appeal pursuant to 28 U.S.C. § 1292(a)(3).² "Ordinarily, interlocutory orders are not appealable, but 28 U.S.C. § 1292(a)(3) `creates an exception to the final judgment rule for orders determining the rights and liabilities of the parties to admiralty cases.'" Royal Ins. Co. of Am. v. S.W. Marine, 194 F.3d 1009, 1013 n. 2 (9th Cir.1999) (quoting Kesselring v. F/T Arctic Hero, 30 F.3d 1123, 1125 (9th Cir.1994)).

DISCUSSION

This case presents a pure question of statutory interpretation, which we review de novo. See Silver Sage Partners, Ltd. v. City of Desert Hot Springs, 251 F.3d 814, 819 (9th Cir.2001). Following the direction of the Supreme Court in Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 2124, 150 L.Ed.2d 251 (2001), we look first to the text of the statute, which is clear and unambiguous:

(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 an [sic] fishing agreement in writing with each seaman enployed [sic] 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 United States.

(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.

46 U.S.C. § 10601.

The unambiguous text of 46 U.S.C. § 10601, which is supported by its historical development, requires the master to sign the agreement. The written agreement is a two-way street. Where there is a valid agreement, wages are determined according to contract and the crewmembers have only six months within which to file suit on in rem claims. 46 U.S.C. § 10602. And, where there is no controlling written agreement, wages are based on a statutory formula: the higher of the amount agreed to or the highest rate of wages at the port where the seaman was engaged. 46 U.S.C. § 11107.

I. HISTORICAL BACKDROP OF WRITTEN CONTRACTS AND 46 U.S.C. § 10601

Statutory protection of the seafarer's right to a written contract dates back to one of the first acts of Congress, and 46 U.S.C. § 10601 descends from that venerable tradition. Seattle-First Nat'l Bank v. Conaway, 98 F.3d 1195, 1196 (9th Cir. 1996). In 1792, Congress provided that cod fishermen³ would be entitled to a statutory share of the fishing vessel's proceeds "unless the skipper or master thereof shall, before he proceeds on any fishing voyage, make an agreement in writing or in print, with every fisherman employed therein ... which agreement shall be endorsed or countersigned by the owner." Act of 1792, ch. 6, § 4, 1 Stat. 229, 231. The legislation went on to provide "[t]hat where an agreement or contract shall be so made and signed," the vessel would be liable for six months to the fishermen for their share. Id. § 5. This protection was extended to mackerel fishermen in 1865, March 3, 1865 Extension Act, 13 Stat. 535, and the statute was codified as R.S. 4391 (1878). See Caffray v. The Cornelia M. Kingsland, 25 F. 856, 859 (S.D.N.Y.1885). This provision was then codified at 46 U.S.C. § 531, the immediate predecessor to § 10601. As amended over the years, § 531 read, just prior to its repeal in 1988:

The master of any vessel [in the cod or mackerel fisheries] ... shall, before proceeding on such fishing voyage, make an agreement in writing with every fisherman who may be employed therein.... Such agreement shall be indorsed or countersigned by the owner of such fishing vessel or his agent.

46 U.S.C. § 531.

Cases under the predecessor acts refer to the master's signature, suggesting that our interpretation of the successor statute, § 10601, is consistent with the historical interpretation. See e.g., United States v. Atkins, 24 F. Cas. 885, 887 (D.Mass.1856) (No. 14, 474) (noting that a "paper was signed by the master and fishermen and countersigned by the owner"); Crowell v. United States, 6 F. Cas. 912, 913 (C.C.D.Mass.1856) (No. 3447) (holding an agreement invalid because it was not "in writing or print, signed by the master, and countersigned by the owner"); Whalen v. The Silver Spring, 29 F. Cas. 852, 852 (D.Mass.1854) (No. 17,477) (noting valid agreements were "signed by the captain and three men"). The requirement of a master's signature was thus assumed in prior case law.

Section 10601, which updated the statute's language and extended its coverage beyond the cod and mackerel industry to all fishing vessels, was enacted as part of the Commercial Fishing Industry Vessel Safety Act of 1988, titled: "An Act to provide for the establishment of additional safety requirements for fishing industry vessels, and for other purposes." Pub.L. 100-424, 102 Stat. 1585. The only legislative history relates to safety and limitation of liability. H.R. Rep. 100-729, 1988 U.S.C.C.A.N. 2149. The history of this statute thus illustrates that the requirement of the master's signature was carried forward from the Second Congress.

II. CONSTRUCTION OF 46 U.S.C. § 10601

We next turn to the text of § 10601 "to construe what Congress has enacted." Duncan, 121 S.Ct. at 2124. In a related context, we have previously held that this provision is "perfectly clear facially." Seattle-First Nat'l Bank, 98 F.3d at 1197. We again conclude that the plain text is controlling: "if the language of a statute is clear, we look no further than that language in determining the statute's meaning." Id. (citations and internal quotation marks omitted). The only exception would be for "absurd or impracticable consequences," id., which are not present here.

The requirement in § 10601(a) that the master and the seaman "make a[] fishing agreement in writing" facially requires both parties to sign the agreement. More generally, § 10601 requires that the fishing agreement contain certain substantive provisions. For example, the agreement must include "the period of effectiveness" and "the terms of any wage, share, or other compensation arrangement." 46 U.S.C. § 10601(c)(1) & (2). It is thus consistent to read § 10601(a) as imposing a concrete requirement that the master sign the agreement.

To "make" an agreement, at least as applied to a written contract, is to execute the agreement in due form. As the district court noted, the pertinent definition from Black's Law Dictionary is: "To legally perform, as by executing, signing, or...