Madeja v. Olympic Packers, LLC.

• Decision Date: 31 October 2002
• Docket Number: No. 01-16447.,01-16447.
• Citation: 310 F.3d 628
• Parties: Sampson MADEJA; Jose L. Rodriguez; Michael Steven Mallars; Solvi Olafsson; Olafur Skagvik, Plaintiffs-Appellants, v. OLYMPIC PACKERS, LLC, in personam; M/V Fierce Packer O.N. 546488, her engines, tackle, stores, and equipment freight, In Rem, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

310 F.3d 628

Sampson MADEJA; Jose L. Rodriguez; Michael Steven Mallars; Solvi Olafsson; Olafur Skagvik, Plaintiffs-Appellants, v. OLYMPIC PACKERS, LLC, in personam; M/V Fierce Packer O.N. 546488, her engines, tackle, stores, and equipment freight, In Rem, Defendants-Appellees.

No. 01-16447.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 10, 2002.

Filed October 31, 2002.

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Jay Lawrence Friedheim, Honolulu, HI, for the plaintiffs-appellants.

John O'Kane, Jr., Honolulu, HI, for the defendants-appellees.

Appeal from the United States District Court for the District of Hawaii; Susan Oki Mollway, District Judge, Presiding. D.C. No. CV 00-0190 SOM.

Before: WALLACE, TASHIMA, and TALLMAN, Circuit Judges.

TASHIMA, Circuit Judge.

Sampson Madeja ("Madeja"), Jose Rodriguez ("Rodriguez"), Michael Steven Mallars ("Mallars"), Solvi Olafsson ("Olafsson"), and Olafur Skagvik ("Skagvik") (collectively "Appellants") appeal from the district court's final judgment in this admiralty action, entered after a bench trial, denying them relief on the majority of their claims, filed in personam against Olympic Packer, LLC ("Olympic"), and in rem against the vessel Fierce Packer, for, inter alia, unpaid wages, penalty wages, and wrongful discharge. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I. BACKGROUND

Olympic, a Washington limited liability corporation, is the legal owner of the Fierce Packer, a 163-foot ship chartered to Interisland Maritime Services, Inc. ("IMAR"), on November 29, 1999. The "Bareboat Charter Agreement" required that IMAR be responsible for all operating, crew, maintenance, repair, and insurance costs during the charter period. During the IMAR charter period, Olympic played no role either in the hiring and control of the crew, or in the navigation of the ship.

While negotiating the charter agreement, Ron Ellis ("Ellis"), the president of IMAR, inquired as to the availability of a crew for the Fierce Packer. Ellis was put in touch with Skagvik, who had previously served as master of the Fierce Packer on a number of voyages operated by Olympic. Ellis hired Skagvik to be captain of the Fierce Packer on November 29, 1999, orally promising him $275 a day for his work on the ship during the IMAR charter period and asked him to put a crew together. Skagvik never signed a written employment contract with IMAR. On the same day, Ellis hired Mallars as chief engineer, orally promising him $250 a day for his work on the ship during the IMAR charter period. Like Skagvik, Mallars never signed a written contract with IMAR for his employment, though he did initial certain parts of a document that Ellis showed him that outlined his job responsibilities, but omitted his wage and the duration of his employment.

The Fierce Packer set sail from Seattle, Washington, to Honolulu, Hawaii, on November 30, 1999. Upon arriving in Honolulu, additional crew were hired to work on the Fierce Packer. Ellis hired Rodriguez as a deckhand/cook on December 18, 1999, orally promising him $125 a day for his work on the Fierce Packer. While Rodriguez never signed an employment contract with IMAR, he initialed the same document that was initialed by Mallars. On January 11, 2000, Ellis hired Madeja to be a mate on the Fierce Packer at the rate of $200 a day. Madeja worked on the Fierce Packer for only a short time, ending his employment there on January 28, 2000.¹ Finally, on January 31, 2000, Skagvik hired his son, Olafsson, (with Ellis' approval) to work as chief mate at the rate of $200 a day. Olafsson flew from Seattle to Honolulu with the expectation that he would be reimbursed for travel expenses exceeding $500. While Olafsson knew of the IMAR charter when he agreed to work on the Fierce Packer, and considered himself IMAR's employee, he never signed a written employment contract with IMAR.

While in Hawaii under the IMAR charter, the Fierce Packer went on three trips to Christmas and Fanning Islands. The first trip was from December 21, 1999, to January 4, 2000; the second trip was from January 13 to 27, 2000; and the final trip was from February 4 to 17, 2000.

After the second trip, Skagvik and Mallars spoke with Kim Hansen ("Hansen"), the president of Kim Hansen Enterprises, Inc. ("KHE"), a subsidiary corporation of Olympic responsible for managing the Fierce Packer. They told Hansen that Ellis was behind on payments to the crew and that shippers were beginning to complain about Ellis. Hansen asked Skagvik and Mallars to investigate the possibility of conducting further cargo runs to Christmas and Fanning Islands through Hansen, rather than through IMAR. Soon after, Olafsson and Mallars spoke with Leif Anderson ("Anderson"), the vice-president of IMAR, about the possibility of continuing cargo operations under Hansen's management. Anderson supported this proposal and, on February 17, 2000, transmitted a letter to Hansen asking that Olympic take over management of the Fierce Packer.

When the Fierce Packer returned to Honolulu on February 17, 2000, Mallars, Olafsson, Rodriguez, and Skagvik learned that IMAR was in bankruptcy and that they had been fired for (allegedly) consuming alcohol while on the Fierce Packer. That same day, Skagvik called Hansen to inform him of IMAR's bankruptcy and the crew's termination. Hansen asked Skagvik to stay on the Fierce Packer, keep it operational, and wait for Paul Schultz ("Schultz"), a KHE employee and the Fierce Packer's vessel operations manager, who would be traveling to Hawaii from Korea. According to Skagvik, Olafsson, and Mallars, Hansen asked that the rest of the crew stay on the Fierce Packer to await Schultz's arrival. Skagvik, Mallars, and Olafsson complied with this request; Rodriguez terminated his employment on the Fierce Packer on February 17, 2000. While Skagvik maintained that Hansen promised the crew payment for its work on the vessel after February 17, 2000, Hansen denied making any commitments to Skagvik on behalf of KHE or Olympic.² On February 21, 2000, Schultz arrived in Honolulu. While Appellants asserted that Schultz orally promised to pay them for work performed after being fired by IMAR on February 17, 2000, Schultz denied having made any commitments to the crew in that regard.³

After Schultz arrived, Skagvik, Mallars, and Olafsson worked under his direction. They maintained the Fierce Packer's systems and generators, kept the ship clean, made necessary repairs, informally kept "watch" on the ship, and moved the vessel three times to accommodate other cargo ships. Additionally, Schultz, Skagvik, Mallars, and Olafsson further investigated the possibility of an additional cargo trip to Christmas and Fanning Islands under Hansen's management. While neither Schultz nor Hansen committed the Fierce Packer to another cargo voyage, Skagvik, Mallars, and Olafsson created a flier to advertise the runs, faxed copies of the flier to potential customers, talked with customers by cellular phone about the possibility of cargo transport,⁴ and received some cargo from customers to ship to Christmas and Fanning Islands.⁵

At some point after February 21, 2000, Schultz received a check for $8,000 owed to IMAR for cargo transported during the IMAR charter period. The check was written to "cash" and Olafsson cashed the check for Schultz because Schultz did not have the requisite two pieces of identification. From this sum, Schultz paid $1,000 each to Skagvik, Mallars, and Olafsson, and $500 to Rodriguez.⁶ And at some point between February 21 and March 5, 2000, Schultz asked the crew if they would be willing to work for half their usual wage. Skagvik and Mallars refused this offer and left Honolulu on March 5, 2000.⁷ According to Schultz, only Olafsson agreed to the arrangement. However, while Olafsson remained on the Fierce Packer until March 17, 2000, he denied having agreed to a reduced rate of pay.⁸

Skagvik and Mallars were not paid for work done between February 18 and March 5, 2000. Olafsson was not paid for work done between February 18 and March 17, 2000. Beginning February 17, 2000, Appellants repeatedly made demands on Olympic, through KHE, for their unpaid wages. Shortly thereafter, Appellants commenced this action and had the Fierce Packer arrested as security for their wage claims. Olafsson remained on the vessel nearly 24 hours a day, taking care of the Fierce Packer while it was in custody. To secure the Fierce Packer's release, Olympic paid Appellants' wage claims, as demanded in the affidavits attached to their Verified Complaint, and posted a $135,000 bond.⁹

The litigation over who owed the wages and in what amounts proceeded and, shortly before trial, Appellants attempted to obtain a statement and documents from Anne Stevens ("Stevens"), an agent of Olympic. Appellees moved to exclude this evidence at trial and the court granted this motion, finding that Appellants' request was untimely.

After trial, the district court found that the Fierce Packer was liable in rem for wages due under the IMAR charter, but that the vessel was discharged of this liability when Olympic paid Appellants' wages to get the Fierce Packer released from custody. The court also found that Olympic was liable in personam for wages due Appellants in the post-IMAR charter period and awarded compensatory damages and pre-judgment interest from the date the wages were due. The court, however, denied Appellants' penalty wage claim under 46 U.S.C. § 10313, finding that there was no discrete, specific, or imminent voyage planned for the Fierce Packer during the post-IMAR charter period. Additionally, the district court rejected Appellants' wrongful termination claims and request for attorney's fees.

II. STANDARD OF REVIEW

The judgment of the district court, sitting in admiralty without a jury is reviewed for clear error. McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20 (1954); ...