search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Brown v. State & Div. of Marine Highway Systems (8/30/91), 816 P 2d 1368
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order that corrections
may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
DALE C. BROWN, )
Appellant, ) File No. S-3811
v. ) 1JU 88 578 CIVIL
STATE OF ALASKA AND DIVISION )
OF MARINE HIGHWAY SYSTEMS, ) O P I N I O N
Appellees. ) [No. 3747 - August 30, 1991]
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Rodger W. Pegues, Judge.
Appearances: David S. Teske, David S. Teske
& Associates, Seattle, for Appellant. James
P. Moynihan, Bauer, Moynihan & Johnson, Seatt
le, and Douglas B. Baily, Attorney General,
Juneau, for Appellees.
Before: Rabinowitz, Chief Justice, Burke,
Matthews, Compton and Moore, Justices.
COMPTON, Justice, dissenting.
This is an appeal of the superior court's order
granting summary judgment to the State of Alaska and Division of
Marine Highway Systems (state), dismissing the plaintiff sailor's
complaint for relief under the Jones Act and the doctrine of
unseaworthiness. We reverse.
The facts of this case are not disputed. Dale Brown
was employed as a marine engineer by the Alaska Marine Highway
System (AMHS) when he was injured while working on board the M/V
Aurora on December 31, 1984. Brown suffered a knee injury while
acting in the course and scope of his employment as a sailor.
Brown was a member of the Marine Engineer's Beneficial
Association (MEBA) and was operating under a union contract at
the time of his injury. Section 9.03 of this contract states,
"Employees shall be entitled to Alaska Worker's Compensation
Benefits in lieu of remedies for wages, maintenance and cure,
unseaworthiness, and negligence for illness and injuries incurred
while in the service of the Employer." Brown has received
benefits for his knee injury under the Alaska Workers'
Compensation program, including biweekly payments, payment of
medical bills, and vocational rehabilitation training.
In October of 1986 Brown brought an action against the
state in the United States District Court for the Western
District of Washington, asserting claims based on the Jones Act
and the doctrine of unseaworthiness. The action was dismissed
after the Ninth Circuit Court of Appeals held in a similar case
that the eleventh amendment to the United States Constitution
bars a state-employed sailor from suing the state in federal
court. Collins v. State of Alaska, 823 F.2d 329 (9th Cir. 1987).
Brown then filed this action in the superior court,
again asserting causes of action based on the Jones Act and the
doctrine of unseaworthiness. The court granted summary judgment
in favor of the state on June 23, 1989. Brown appeals.
The United States Constitution extends the federal
judicial powers to "all cases of admiralty and maritime jurisdic
tion." U.S. Const. art. III, 2. Section 9 of the Judiciary
Act of 1789 implements this constitutional extension of judicial
power to maritime cases:
The district courts shall have
original jurisdiction, exclusive of the
courts of the States, of:
(1) Any civil case of admiralty or
maritime jurisdiction, saving to suitors in
all cases all other remedies to which they
are otherwise entitled.
28 U.S.C. 1333 (1988). This court has previously commented on
the effect of the "saving to suitors"clause:
This statute reserves to the
federal courts in admiralty exclusive
jurisdiction over in rem admiralty actions,
that is, claims in the nature of maritime
liens to be enforced usually against vessels.
Generally, the "saving to suitors" clause
means that a suitor asserting an in personam
admiralty claim may elect to sue in a "common
law" state court through an ordinary civil
action. In such actions, the state courts
must apply the same substantive law as would
be applied had the suit been instituted in
admiralty in a federal court.
Shannon v. City of Anchorage, 478 P.2d 815, 818 (Alaska 1970)
(footnotes omitted). In this case, Brown's sole avenue is
through the state courts because the eleventh amendment to the
United States Constitution bars a state-employed sailor from
suing the state in federal district court. See Collins, 823 F.2d
The substantive rules of maritime law, as modified by
the Jones Act, apply in savings clause cases under the Jones Act.
Shannon, 478 P.2d at 818. Brown's unseaworthiness claim is a
federal maritime tort, thus it is governed by the existing body
of federal substantive law. Barber v. New England Fish Co., 510
P.2d 806, 808 (Alaska 1973).2
Sailors are historically the wards of admiralty, and
the courts have long accorded them special protection. See
Harden v. Gordon, 11 F. Cas. 480, 485 (C.C.D. Maine 1823) (No.
6,047) (Story, J.). As a result of common law development and
legislative action, an injured sailor today can avail himself of
three important rights: the maritime-law right to maintenance and
cure, the maritime-law right to recover damages for injuries
caused by the unseaworthiness of the vessel, and the Jones Act
right to recover damages caused by an employer's negligence.
Section 9.03 of the MEBA contract affects all three of these
rights, and we must briefly discuss each of them before
considering the validity of the contract.
"Maintenance and cure is designed to provide a seaman
with food and lodging when he becomes sick or injured in the
ship's service; and it extends during the period when he is
incapacitated to do a seaman's work and continues until he
reaches maximum medical recovery." Vaughan v. Atkinson, 369 U.S.
527, 531 (1962). The duty to provide maintenance and cure "is
imposed by the law itself as one annexed to the employment.
Contractual it is in the sense that it has its source in a
relation which is contractual in origin, but given the relation,
no agreement is competent to abrogate the incident." Cortes v.
Baltimore Insular Line, Inc., 287 U.S. 367, 371 (1932) (citation
omitted). "When the seaman becomes committed to the service of
the ship the maritime law annexes a duty that no private
agreement is competent to abrogate . . . . This duty does not
depend upon fault." De Zon v. American President Lines, 318 U.S.
660, 667 (1943).
Although maintenance and cure has sometimes been analo
gized to workers' compensation, it is in fact a superior right:
The shipowner's liability for
maintenance and cure resembles that of an
employer subject to a Workmen's Compensation
Act only in that it is a liability without
fault which is based on the employment
relationship. The shipowner's liability is
not restricted to injury or illness "arising
out of" or causally related to the seaman's
shipboard duties; except for injury and
illness caused by the seaman's gross and
willful misconduct or existing at the time
the seaman signed on and knowingly concealed
by him, the shipowner is liable for any
injury which occurs or any illness which
manifests itself while the seaman is under
G. Gilmore & C. Black, The Law of Admiralty 6-6 (2d ed. 1975).
Furthermore, the right to maintenance and cure, unlike workers'
compensation, is not exclusive. When considered in conjunction
with the sailor's right to recover for negligence and unseaworthi
ness, "[t]he 'poor and friendless' seaman is . . . the
beneficiary of a system of accident and health insurance at
shipowner's expense more comprehensive than anything yet achieved
by shorebound workers." Id.3
The doctrine of unseaworthiness, like maintenance and
cure, arose under the general maritime law, Cortes, 287 U.S. at
370-71, developing in American admiralty courts from the late
nineteenth century. Mitchell v. Trawler Racer, Inc., 362 U.S.
539, 544 (1960). Beginning in the 1940s, the Supreme Court
significantly expanded the shipowner's duty to provide a
seaworthy vessel, such that the availability of actions under
this doctrine is an important right for injured sailors. See G.
Gilmore & C. Black, The Law of Admiralty 6-38 through 6-44(a)
(2d ed. 1975). Shipowners are under an absolute duty to provide
a vessel and appurtenances reasonably fit for their intended use.
Mitchell, 362 U.S. at 549-50; see also Morales v. Galveston, 370
U.S. 165, 169 (1962); Seas Shipping Co. v. Sieracki, 328 U.S. 85,
94-95 (1946) ("[T]he liability is neither limited by conceptions
of negligence nor contractual in character. It is a form of
absolute duty owing to all within the range of its humanitarian
policy.") (citations omitted). The duty also is nondelegable.
Sieracki, 328 U.S. at 100. Damages recoverable under this
doctrine include pecuniary and nonpecuniary losses, as well as
punitive damages under some circumstances. Dyer v. Merry
Shipping Co., 650 F.2d 622, 623, 626-27 (5th Cir. 1981).
The Jones Act provides a right of action for injury or
death to sailors caused by the negligence of their employers. It
reads in relevant part:
Any seaman who shall suffer
personal injury in the course of his
employment may, at his election, maintain an
action for damages at law, with the right of
trial by jury, and in such action all
statutes of the United States modifying or
extending the common-law right or remedy in
cases of personal injury to railway employees
shall apply; and in the case of the death of
any seaman as a result of any such personal
injury the personal representative of such
seaman may maintain an action for damages at
law with the right of trial by jury, and in
such action all statutes of the United States
conferring or regulating the right of action
for death in the case of railway employees
shall be applicable. Jurisdiction in such
actions shall be under the court of the
district in which the defendant employer
resides or in which his principal office is
46 U.S.C. 688(a) (1988).
The language concerning the rights and remedies of
railway employees has the effect of extending to sailors the
provisions of the Federal Employers' Liability Act (FELA), 45
U.S.C. 51-60 (1988). Mitchell, 362 U.S. at 546-47. Most
importantly, sailors have the right to sue shipowners for damages
for injury or death "resulting in whole or in part from the
negligence of any of the officers, agents, or employees of such
[shipowner], or by reason of any defect or insufficiency, due to
its negligence, in its . . . equipment." 45 U.S.C. 51 (1988).
A Jones Act plaintiff enjoys two significant advantages
over the plaintiff in a common-law negligence case. First, the
standard of care owed to a sailor is higher than the common-law
standard. As Justice Cardozo noted:
We do not read the [Jones Act] as
expressing the will of Congress that only the
same defaults imposing liability upon
carriers by rail shall impose liability upon
carriers by water. The conditions at sea
differ widely from those on land, and the
diversity of conditions breeds diversity of
duties. This court has said that "the
ancient characterization of seamen as 'wards
of admiralty' is even more accurate now than
it was formerly.". . . Out of this relation
of dependence and submission there emerges
for the stronger party a corresponding
standard or obligation of fostering
Cortes, 287 U.S. at 377. Second, the Jones Act plaintiff's
burden on the issue of causation has been described as a
"featherweight." G. Gilmore & C. Black, The Law of Admiralty 6-
36 (2d ed. 1975). That burden is satisfied if the plaintiff
establishes "that employer negligence played any part, even the
slightest, in producing the injury or death for which damages are
sought." Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521,
523 (1957); Robin v. Wilson Brothers Drilling, 719 F.2d 96, 97 &
n.1 (5th Cir. 1983) (approving jury instruction to the effect
that "negligence is a legal cause [in a Jones Act case] if it
played any part, no matter how slight, in bringing about or
actually causing the injury or damage").
Section 5 of FELA closely limits the ability of an
employer to restrict its own liability: "Any contract, rule,
regulation, or device whatsoever, the purpose or intent of which
shall be to enable any common carrier to exempt itself from any
liability created by this chapter, shall to that extent be void
. . . ." 45 U.S.C. 55 (1988). The Supreme Court has found
that "Congress wanted 5 to have the full effect that its
comprehensive phraseology implies." Boyd v. Grand Trunk Western
R.R. Co., 338 U.S. 263, 265 (1949) (quoting Duncan v. Thompson,
315 U.S. 1, 6 (1942)); see also Brice v. National R.R. Passenger
Corp., 664 F. Supp. 220, 224 (D. Md. 1987) ("The purpose of
Section 55 is to insure that the employee is compensated to the
full extent of his loss."). Whether an agreement violates
section 5 of FELA is a federal question to be decided by federal
law. South Buffalo Ry. Co. v. Ahern, 344 U.S. 367, 372 (1953).
We turn now to the validity of section 9.03.
The state's primary contention is that sailors can
contract away any right provided a) the sailor understands the
contract and b) there is an adequate quid pro quo. In support of
this the state directs our attention to general statements made
by Justice Story in decisions handed down while he was riding
circuit in the early nineteenth century. Harden, 11 F. Cas. at
480; Brown v. Lull, 4 F. Cas. 407 (C.C.D. Mass. 1836) (No.
2,018). Although Harden is generally credited for establishing
the proposition that sailors are wards of admiralty, it scarcely
provides the last word in deciding the issues before us in this
The state also urges us to follow the decision of the
district court in Collins v. State of Alaska, 621 F. Supp. 722
(W.D. Wash. 1985), aff'd on other grounds, 823 F.2d 329 (9th Cir.
1987), upholding a contractual provision virtually identical to
the one in this case. While conceding that Collins has no
precedential value,4 the state asserts that "the reasoning of the
district court is sound." We disagree. In concluding that a
union could bargain away sailors' common-law rights of
maintenance and cure and seaworthiness and statutory rights under
the Jones Act provided it received an adequate quid pro quo, the
district court's brief opinion engages in no analysis of the
nature of those rights or the stringent protection they have been
given by courts. As the following discussion makes clear, such
an analysis convinces us that section 9.03 is invalid.
The federal courts have consistently stated that
sailors' rights to maintenance and cure cannot be abrogated by
contract. E.g., Cortes, 287 U.S. at 371; Gardiner v. Sea-Land
Service, Inc., 786 F.2d 943, 946 (9th Cir.), cert. denied, 479
U.S. 924 (1986); Barnes v. Andover Co., 900 F.2d 630, 637 (3d
Cir. 1990). The right to recover under the doctrine of
seaworthiness is also plainly not susceptible to contractual
modification. Sieracki, 328 U.S. at 94-95. Section 5 of FELA
establishes a similarly strict prohibition against any
contractual limitation of a shipowner's liability. These
principles, all of which Section 9.03 violates, preclude the
validity of the MEBA contract irrespective of the presence of a
quid pro quo.
Several federal circuit courts have upheld contracts
which set the rate of maintenance and cure, even though the
contractual rate was clearly too low to provide the injured
sailor with food and lodging. Al-Zawkari v. American S.S. Co.,
871 F.2d 585, 588 (6th Cir. 1989); Macedo v. F/V Paul & Michelle,
868 F.2d 519, 522 (1st Cir. 1989); Gardiner, 786 F.2d at 949-50.
But see Barnes, 900 F.2d at 637 (rejecting proposition that
clearly inadequate rate does not amount to abrogation). Even the
courts enforcing an inadequate rate, however, generally make
clear that total abrogation is not allowed. Al-Zawkari, 871 F.2d
at 588 ("duty to provide maintenance cannot be entirely
abrogated") (emphasis in original); Gardiner, 786 F.2d at 946;
see also Dowdle v. Offshore Express, Inc., 809 F.2d 259, 263-64
(5th Cir. 1987) ("[T]here is a fundamental difference between
contractual regulation of the rate of maintenance payments and
contractual elimination of such payments altogether.").
Section 9.03, by exchanging Alaska Workers'
Compensation coverage for maintenance, impermissibly abrogates
the right to maintenance and cure for an important class of
sailors: those who become ill or are injured while in the service
of the state, but whose illness or injury is not related to their
work. The right of maintenance and cure attaches for any illness
or injury that occurs while the sailor is "subject to the call of
duty," Aguilar v. Standard Oil Co., 318 U.S. 724, 732 (1943),
without regard to whether it is work-related:
[The] employer's responsibility for
maintenance and cure extends beyond injuries
sustained because of, or while engaged in,
activities required by his employment. In
this respect it is a broader liability than
that imposed by modern workmen's compensation
. . . .
. . . [U]nlike the statutory
liability of employers on land it is not
limited to strictly occupational hazards or
to injuries which have immediate causal
connection with an act of labor.
Id. at 732, 734; see also Warren v. United States, 340 U.S. 523,
529-30 (1951) (sailor on shore leave injured in Italian dance
hall entitled to maintenance and cure); Calmar Steamship Corp. v.
Taylor, 303 U.S. 525, 527 (1938) (illness need have no causal
connection whatsoever to employment to entitle sailor to mainte
nance and cure).
By way of contrast, an employee covered by the Alaska
Workers' Compensation laws is entitled to benefits only if his
illness or injury is causally connected to his employment:
"[T]he idea is to rule out cases in which claimant can show
neither that the injury occurred in the course of employment nor
that it arose out of it, as where he contracted a disease but has
no evidence to show where he got it." Burgess Construction Co.
v. Smallwood, 623 P.2d 312, 316 n.4 (Alaska 1981) (quoting 1 A.
Larson, Workmen's Compensation Law 10.33, at 121 (1978)). Even
though the workers' compensation law contains a liberal
presumption in favor of compensability, AS 23.30.120(a)(1), it is
not equivalent to the unconditional right to maintenance and cure
historically guaranteed sailors. Rather than merely fixing a
rate of entitlement, which in at least some circuits would be
permitted, section 9.03 has the effect of totally eliminating the
entitlement under certain circumstances. We find this to be an
impermissible abrogation of the right.
Section 9.03 also impermissibly seeks to restrict the
shipowner's liability under the doctrine of unseaworthiness. As
noted above, the Supreme Court long ago emphasized that the
shipowner's liability for the seaworthiness of its vessel "is
neither limited by conceptions of negligence nor contractual in
character." Sieracki, 328 U.S. at 94. The Court subsequently
concluded that necessary consequences of this "absolute duty,"
id. at 95, are that the "obligation of seaworthiness cannot be
shifted about, limited, or escaped by contracts or by the absence
of contracts and that the shipowner's obligation is rooted, not
in contracts, but in hazards of the work." Reed v. Steamship
Yaka, 373 U.S. 410, 414-15 (1963).
Section 9.03 limits the state's obligation to provide a
seaworthy vessel by substantially limiting liability should the
state breach its duty. Section 9.03 would allow the state to
escape, for example, liability for any pain and suffering caused
to sailors by the unseaworthiness of its vessels, as well as--in
the case of a sailor killed by the state's breach of this
absolute duty--the loss of society suffered by survivors. See
Dyer, 650 F.2d at 623 & n.4. One might argue that the obligation
still remains, merely the remedy has been limited. Indeed, the
state makes such an argument with regard to the limitation of its
Jones Act liability. Such an argument misses the point: A legal
obligation without legal liability would be no obligation at all;
similarly, an obligation with limited liability is a limited
obligation. We therefore find section 9.03 to be an
impermissible limitation of the state's obligations under the
doctrine of unseaworthiness.
Analogous reasoning applies to section 9.03's
limitation of the state's Jones Act liability. As noted above,
section 5 of FELA, which is incorporated by reference into the
Jones Act, prohibits "[a]ny contract . . . the purpose or intent
of which shall be to enable any common carrier to exempt itself
from any liability created by this chapter." 45 U.S.C. 55
(1988) (emphasis added). The purpose and effect of this section
are as broad as the language indicates. Boyd, 338 U.S. at 265.
Contrary to the state's assertion, section 5 does not merely
prohibit contracts which would exempt the shipowner from all
liability; it also clearly prohibits contracts that exempt the
shipowner from any liability to which it would otherwise be
Section 9.03 does purport to effect such a prohibited
exemption. A Jones Act defendant, for example, would normally be
liable for an injured sailor's pain and suffering. See 46 U.S.C.
5 688(a) (1988) (authorizing "action for damages at law"); Dyer,
650 F.2d at 624. Under the terms of section 9.03, however, the
state has exempted itself from any such liability. Contrary to
the purpose of section 5, injured sailors will not be
"compensated to the full extent of [their] loss." Brice, 664 F.
Supp. at 224.
The state asserts without analysis or citation that
"[i]t can hardly be said that the benefits provided by the Alaska
Workers' Compensation Act do not compensate injured workers . . .
to the full extent of their losses." Brief of Appellees 30-31.
In fact we have ourselves pointed out that "[t]he purpose of
workers' compensation is to compensate the victims of work-
r[el]ated injury for a part of their economic loss, measured by
the wage loss to the worker or the surviving family." Wien Air
Alaska v. Arant, 592 P.2d 352, 357 (Alaska 1979). The basic
nature of workers' compensation as a trade of potential full
recovery for certain partial recovery is well known: "In accom
plishing the goal of securing adequate compensation for injured
employees without the expense and delay inherent in a
determination of fault as between the employee and employer, the
legislature apparently also found it necessary to limit the total
amount of the employer's liability to the statutory award."
Arctic Structures, Inc. v. Wedmore, 605 P.2d 426, 437 (Alaska
1979). One may plausibly argue that such a trade-off is as
appropriate in the maritime context as it is on land. But the
law as it stands now explicitly prohibits the exchange. Reconsid
eration of the wisdom of that policy is for Congress, not the
The state directs our attention to cases in which
courts have suggested that the compromise of FELA claims do not
violate section 5. Ahern, 344 U.S. at 371-72; Heagney v.
Brooklyn Eastern District Terminal, 190 F.2d 976 (2d Cir. 1951),
cert. denied, 342 U.S. 920 (1952); Apitsch v. Patapsco & Back
Rivers R.R. Co., 385 F. Supp. 495 (D. Md. 1974). These cases are
inapposite, as they all concerned compromise of accrued claims.
E.g., Ahern, 344 U.S. at 372 (challenged law permits agency "to
effectuate private agreements compromising a federal
controversy"). Compromise of existing disputes is favored by the
courts. ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d
988, 997 (2d Cir. 1983). As a consequence, compromises are
assumed to be satisfaction of the plaintiff's claims. Mitchell
v. Mitchell, 655 P.2d 748, 751 (Alaska 1982). Thus, the valid
compromise of a FELA claim is the equivalent of full compensation
of the injured sailor. In this sense, a compromise would not
violate section 5.
Even these post-injury, FELA compromises are, however,
"jealously scrutinized"to ensure that the employer does not
escape any liability and that the employee receives the
equivalent of full compensation. Ahern, 344 U.S. at 372-73; Wink
v. Rowan Drilling Co., 611 F.2d 98, 100 (5th Cir.), cert. denied,
449 U.S. 823 (1980). In Apitsch, for example, the injured
railroad worker entered into a post-injury agreement to process
his claim under state workers' compensation scheme and to waive
his FELA rights. Apitsch, 385 F. Supp. at 499-500. The railroad
offered this opportunity to the worker based on an agreement with
the worker's union to treat such claims under the state workers'
compensation law. Id. at 498. The court concluded that this
"apparent union approval"of the waiver of FELA rights, coupled
with the pressure to settle inherent in the employment
relationship, rendered the agreement between the railroad and
union to process claims under the workers' compensation laws
invalid and the release by the employee of his FELA claims
fatally involuntary. Id. at 504.
The present case is even clearer than Apitsch. Rather
than "apparent union approval"of a post-injury compromise, we
are faced with a union-mandated, pre-injury release of Jones Act
rights. As the railroad's counsel conceded in Apitsch, such an
agreement "is void per se under section 5." Id.5
The superior court's grant of summary judgment is
REVERSED and this case is REMANDED for further proceedings.
COMPTON, Justice, dissenting.
Last year, in State v. Brown, 794 P.2d 108 (Alaska
1990), this court held that by passing the Claims Against the
State Act (CATSA), AS 09.50.250, the state had waived its
sovereign immunity against Jones Act claims made by state
employees, notwithstanding the exclusive remedy provisions of the
Alaska Workers' Compensation Act (AWCA), AS 23.30.055. In
dissent, I expressed the view that the enactment of CATSA was not
meant to abrogate the effect of the more limited waiver of
sovereign immunity in AWCA, and that AWCA provided the exclusive
remedy for injured state employees.
Today the court goes one step further, invalidating a
fairly bargained union labor contract authorized by state statute
to be entered into between the State of Alaska and certain state
employees. The court effectively says not only that the state
waived its sovereign immunity as far as Jones Act liability is
concerned, but also that the state may never immunize itself from
such liability, either through statute or negotiation. For the
reasons expressed in my prior dissent, Brown, 794 P.2d at 111,
and because I believe that this court shows an even greater
willingness to sacrifice state sovereignty to federal supremacy
without a clear federal constitutional requirement that it do so,
I must again dissent.
1. We have previously determined that the state is
subject to suit under the Jones Act and the admiralty doctrines
of maintenance and cure and unseaworthiness. State v. Brown, 794
P.2d 108, 111 (Alaska 1990).
2. State courts may apply their own standard of
review to maritime cases under the "saving to suitors" clause.
Maxwell v. Olsen, 468 P.2d 48, 51-52 (Alaska 1970). This is an
appeal from a grant of summary judgment involving purely
questions of law, therefore review is de novo. Langdon v.
Champion, 745 P.2d 1371, 1372 n.2 (Alaska 1987).
3. To this extent, even if we accepted the state's
argument that these rights could be exchanged for an adequate
quid pro quo, it is doubtful that such an exchange exists in this
4. For some reason, the court addressed the merits of
the case before determining whether the eleventh amendment
prevented it from having jurisdiction. Collins, 621 F. Supp. at
725. On appeal, the court of appeals determined that the
eleventh amendment did in fact bar Collins's suit. Collins, 823
F.2d at 333.
5. Brown has not sued for maintenance and cure,
apparently on the theory that section 9.03 provides a rate of
maintenance and cure--that is, workers' compensation benefits.
As this opinion makes clear, section 9.03 is completely invalid.
Thus, Brown may wish to make a Civil Rule 15(a) motion to the
superior court to amend his complaint to add a claim for mainte
nance and cure. See Alaska R. Civ. P. 15(a); Rutledge v. Alyeska
Pipeline Service Co., 727 P.2d 1050, 1054 (Alaska 1986).