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Bjornsson v. U.S. Dominator, Inc. (11/12/93), 863 P 2d 235
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
THE SUPREME COURT OF THE STATE OF ALASKA
EMIL BJORNSSON, ) Supreme Court
) File No. S-5094
) Superior Court
v. ) File No. 3AN-90-5384 CI
U.S. DOMINATOR, INC., ) O P I N I O N
Appellee. ) [No. 4023 - November 12, 1993]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
J. Justin Ripley, Judge.
Appearances: Lance Burger, Bauer Moynihan &
Johnson, Seattle, and R. Everett Harris,
Jensen, Harris & Roth, Anchorage, for
Appellant. Matthew D. Regan and Michael A.
Barcott, Faulkner Banfield Doogan & Holmes,
Anchorage, for Appellee.
Before: Moore, Chief Justice, Rabinowitz,
Burke, Matthews and Compton, Justices.
This breach of contract action arises out of a
compensation dispute between Emil Bjornsson and U.S. Dominator,
Inc. (the vessel owner). Bjornsson appeals the superior court's
decision entering summary judgment in the vessel owner's favor.
On appeal, Bjornsson argues that the superior court
erred in not applying 46 U.S.C. 10601 which requires that
fishing compensation arrangements be made in writing in order to
be effective.1 We agree and reverse the superior court's
II. FACTS AND PROCEEDINGS
Bjornsson worked as a commercial fisherman aboard the
U.S. DOMINATOR in February and March 1989 on a trip which left
from Lost Harbor and returned to Dutch Harbor, both Alaskan
ports. Prior to embarking on the voyage, the parties orally
agreed that Bjornsson was to be paid on a five percent "lay
share"basis. This meant that he was to be paid five percent of
the adjusted gross sale value of the fish caught. The value of
the fish was set at eight cents per pound before the start of the
trip. It is undisputed that neither the vessel owner nor its
master signed a written crew agreement with Bjornsson.
Bjornsson was not told that he would not be paid if the
vessel owner was not paid by the buyer of the fish. The vessel
owner contends that, as a customary condition of lay share
payments, Bjornsson was entitled to payment only if the vessel
owner received payment. The vessel owner reasons that lay share
fishermen are usually treated as independent contractors rather
than as simple employees under maritime law.
The fishing vessel U.S. DOMINATOR caught fish on the
fishing trip, although the record does not indicate how many
pounds of fish were caught. The vessel owner sold the fish to
the BERING TRADER, a commercial processor. To date, the BERING
TRADER has not paid the vessel owner, and the vessel owner has
not paid Bjornsson. The superior court granted summary
judgment in favor of the vessel owner without explaining its
decision. Bjornsson now brings this appeal arguing that the
superior court erred in failing to apply 46 U.S.C. 10601 and
11107 to his case.
We review de novo whether the superior court erred in
deciding on summary judgment that Bjornsson was not entitled to
payment until the vessel owner received payment. See Brown v.
State, 816 P.2d 1368, 1371 n.2 (Alaska 1991). We must determine
whether any genuine issues of material fact remain and whether
the moving party is entitled to judgment as a matter of law. See
Alaska R. Civ. P. 56(c); Shanks v. Upjohn Co., 835 P.2d 1189,
1193 (Alaska 1992).
A. 46 U.S.C. 10601 Applies to Lay Share Fishing
Federal law requires both the master and owner of a
fishing vessel to make and sign an agreement in writing with
every seaman employed before beginning a fishing voyage. 46
U.S.C. 10601 (a) and (b) (1988). The written agreement must
"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 . . . include
other agreed terms." 46 U.S.C. 10601(c)(2) and (3) (1988)
The vessel owner admits that neither the owner nor the
master made a written agreement pursuant to section 10601. The
vessel owner argues, however, that section 10601 was not intended
to prohibit oral lay share fishing arrangements. Instead, the
vessel owner contends that under maritime law, fishing lay share
agreements are a form of joint venture whereby the fisherman is
treated as a partner rather than an employee.
Federal law is split on this issue. Some courts
interpreting earlier versions of section 106012 and related
sections have not applied them to lay share fishermen. See,
e.g., The Cornelia M. Kingsland, 25 Fed. 856, 859-61 (S.D.N.Y.
1885) (fishermen who worked for shares in the catch were not
considered "seamen" within the meaning of the statute);
Sigurjonsson v. Trans-America Traders, Inc., 188 F.2d 760 (5th
Cir. 1951) (members of a crew who worked under contract which
specified a percentage of the proceeds from fish caught did not
qualify as "merchant seamen"), cert. denied, 342 U.S. 831 (1951).
Other courts, however, have held that lay share fishermen are
treated as "seamen"or employees, rather than as joint venturers
who would not be protected under the regulations at issue here.
See, e.g., Whalen v. The Silver Spring, 29 F. Cas. 477 (D.C.
Mass. 1854) (No. 17) (holding that former section 531 "is
positive and unequivocal, that the master of every fishing vessel
of more than twenty tons shall . . . make an agreement in writing
for shares, with every fisherman employed therein."); Stevens v.
Seacoast Co., 414 F.2d 1032 (5th Cir. 1969) (rejecting thesis
that participants in lay share fishing arrangement are partners
in a joint venture); Southern Shell Fish Co. v. Plaisance, 196
F.2d 312 (5th Cir. 1952) (affirming jury's factual determination
that participant in lay share fishing agreement was employee of
shipowner with whom shares were to be divided); Cape Shore Fish
Co. v. United States, 330 F.2d 961 (Ct. Cl. 1964) (rejecting
contention that lay share agreement derogates from employer-
employee relationship); Skivanich v. Davis, 186 P.2d 364 (Wash.
1947) (concluding that lay share fishermen are employees and not
members of a joint venture).
We conclude that the latter view is better reasoned.
By its terms, section 10601 provides that "seamen" are to be
protected by the statute. The plain language of 46 U.S.C.
10101 indicates that lay share fishermen are "seamen"as defined
in this part of the code.3 Furthermore, section 10601, enacted
in 1988, specifically states that it applies to "share"
agreements. Earlier versions of section 10601, such as former
section 531, did not so specify. Section 10601 clearly requires
a written contract between both the owner and the master of the
vessel and the seaman. No such written agreement existed here.
Therefore, the vessel owner violated 46 U.S.C. 10601.4
B. 46 U.S.C. 11107 Provides a Penalty for Violation
of 46 U.S.C. 10601
Section 10601 provides no clear sanction for failure to
reduce a fishing agreement to writing. However, federal law
provides a penalty under a different section of the same Part G5
of Title 46 of the United States Code. Section 11107 states, "An
engagement of a seaman contrary to a law of the United States is
void." 46 U.S.C. 11107 (1988). If the engagement is void, the
seaman can recover "the highest rate of wages at the port from
which the seaman was engaged or the amount [of] agreed [wages] .
. . at the time of engagement, whichever is higher." Id.
Without a written contract, Bjornsson's employment agreement
regarding his services aboard the U.S. DOMINATOR is contrary to
law, and thus, void pursuant to section 11107. Therefore,
Bjornsson may recover the higher of the highest rate of wages at
Lost Harbor, the port at which he was engaged, or the amount of
his agreed upon wage.
The vessel owner contends that section 11107 does not apply
to lay share fishermen, but rather only to "merchant seamen."
Thus, the vessel owner argues that section 11107 does not provide
a remedy for violation of section 10601.6 The vessel owner
relies on two cases to support this argument, The Cornelia M.
Kingsland, 25 Fed. 856 (S.D.N.Y. 1885) (treating "fishermen"
different from "merchant seamen"), and Sigurjonsson, 188 F.2d 760
(5th Cir. 1951) (holding that lay share fishermen are not
"merchant seamen entitled to seamen's wages under 46 U.S.C.
594, nor to any of the penalties prescribed by 46 U.S.C. 596
and 665."). His reliance is misplaced, however, because both
cases pertain to former code sections that have since been
repealed and replaced with new code sections. Sections 594, 596,
and 665 were repealed in 1983 and replaced with sections 10313,
10504, and 11106. See former 46 U.S.C. 596 and 665, repealed
by Pub. L. No. 98-89, 4(b), 97 Stat. 600-604 (1983); former 46
U.S.C. 665, repealed by Pub. L. No. 98-89, 4(b), 97 Stat. 600-
605 (1983); 46 U.S.C. 10313, 10504, 11106 (Supp. 1992). We do
not rely on any of these sections in rendering our decision.
Instead, we rely on section 11107.
Before 1983, the sections that regulated fishing
voyages and the sections that regulated merchant voyages were
located in separate "parts"of Title 46 of the United States
Code. Today as in 1989 when Bjornsson was employed aboard the
U.S. DOMINATOR, the provisions for both merchant seamen and
fishermen fall under the same part, Part G, entitled "Merchant
Seamen Protection and Relief." The earlier separate sections
pertaining to the requirement of a written employment agreement
and the penalties for noncompliance were repealed and replaced
with sections 10601 and 11107 in Part G.7
The Code defines "seaman,"as utilized throughout Part
G, as "an individual . . . engaged or employed in any capacity on
board a vessel." 46 U.S.C. 10101(3). Section 10101(3)
specifically excludes from the definition of "seaman"scientists,
sailing instructors and sailing students, but it does not
expressly limit its provisions to "merchant"seamen, nor does it
expressly exclude lay share fishermen. See 46 U.S.C. 10101(3).
Therefore, we interpret the definition of "seamen"to include lay
share fishermen.8 Because section 11107 applies to seamen, and
does not specifically exclude lay share fishermen, we conclude
that it should be applied when vessel owners fail to make a
written contract with lay share fishermen under section 10601.
Section 11107 provides that a seaman who is engaged
contrary to law is entitled to recover either the highest rate of
wages at the port from which he is engaged or the amount agreed
upon at the time of engagement, whichever is higher. 46 U.S.C.
11107. On remand, the trial court must compare the highest rate
of wages at Lost Harbor, the port of engagement, with the amount
of lay share originally agreed upon pursuant to the oral
agreement. In determining the terms of the agreement,
the court should construe the oral agreement to protect the
fisherman. Brown v. State, 816 P.2d 1368, 1371 (Alaska 1991)
("Sailors are historically the wards of admiralty, and the courts
have long accorded them special protection.").9 Additionally, as
the chapter title reflects, section 11107 is designed for
fishermen's "Protection and Relief." Therefore, we interpret the
words of section 11107, "the amount agreed to be given the seaman
at the time of engagement,"as referencing terms of the agreement
that are not in dispute (i.e., those parts of the agreement as to
which both parties agree). Any term in dispute has not been
agreed to by the parties and therefore, is not included in the
sanction created by section 11107. The parties agree that
Bjornsson was to be paid five percent of the gross sale value
which was set at eight cents per pound. The trial court must
determine the number of pounds caught and complete the
calculation.10 Because the parties disagree about whether a
condition of payment existed, we will not consider that term as
part of the agreement. Thus, we hold that Bjornsson is entitled
to the amount agreed upon before the voyage or the highest rate
of wages at Lost Harbor, whichever is higher.
We conclude that 46 U.S.C. 10601 and 11107 apply to
lay share fishermen. Lay share fishing ventures are subject to
the writing requirement of section 10601. The very point of
section 10601 is to avoid later misunderstandings and differing
interpretations, such as those which have brought these two
parties before this court. Lay share arrangements must be
written down to avoid penalties under section 11107. If the
writing is ambiguous, custom may then be considered to interpret
Therefore, the superior court's decision in favor of
the vessel owner on summary judgment is REVERSED. The case is
REMANDED with directions for the superior court to enter summary
judgment in favor of Bjornsson and to determine the proper amount
of compensation, the higher of the highest wages at Lost Harbor
or the agreed upon lay share.
1. Bjornsson also argues, in the alternative to the
application of federal law, that Alaska Statute 23.05.140
applies. Because this situation is controlled by federal law, we
do not address the Alaska statute.
2. See, e.g., former 46 U.S.C.A. 531 (West 1958 & Supp.
1993) ("The master of any vessel . . . shall, before proceeding
on such fishing voyage, make an agreement in writing with every
fisherman who may be employed therein. . . .").
3. "Seaman"is defined as meaning "an individual . . .
engaged or employed in any capacity on board a vessel." 46
U.S.C. 10101 (1988) (Part G--Merchant Seamen Protection and
4. The vessel owner also argues that the requirement of a
written contract is to protect the seaman from changes in the
contract once at sea and that here, the terms of the contract are
not in dispute. The vessel owner claims that because there was
no change in the contract term, he did not violate "the spirit"
of section 10601. This argument is flawed. Central to this
dispute is the issue of whether a certain term, payment to the
fisherman conditioned upon payment to the vessel owner, was part
of the contract. Presumably, a written contract would have
eliminated this dispute. Thus, the vessel owner violated section
10601 both in letter and spirit.
5. Part G is entitled "Merchant Seaman Protection and
Relief". 46 U.S.C. 10101-11507 (Supp. 1992).
6. The vessel owner claims that 46 U.S.C. 10602 provides
the proper remedy for violation of section 10601. Section 10602
When fish caught under an agreement under section 10601
of this title are delivered to the owner of the vessel
for processing and are sold, the vessel is liable in
rem for the wages and shares of the proceeds of the
46 U.S.C. 10602(a) (Supp. 1992). The vessel owner fails to
recognize, however, that while section 10602 gives seamen an
additional right in rem, it does not provide a penalty for
noncompliance with section 10601. See 46 U.S.C. 10602 (Supp.
1992). Section 10602 does not address the fisherman's remedy
when the compensation arrangement is not made in writing. Id.
7. See former 46 U.S.C. 531, repealed by Pub. L. No. 100-
424, 6(c), 102 Stat. 1592 (1988) (predecessor to section 10601,
requiring written contracts for fishermen; former 46 U.S.C. 564
and its accompanying penalty statute, 46 U.S.C. 578, repealed
by Pub. L. No. 98-89, 4(b), 97 Stat. 600-602 (1983)
(predecessor to section 11107, providing a penalty for lack of
written contract with every merchant seaman).
Although Congress has previously stated that "the
provisions of [Part G] generally do not apply to fishing
vessels," Congress passed section 10601 subsequent to making
this statement and incorporated it into Part G, the same part in
which section 11107 appears. See Pub. L. N. 98-89, 1983
U.S.C.C.A.N. 1004. It is presumed that Congress was aware of the
existence of section 11107 when it enacted section 10601. Native
Village of Venetie I.R.A. Council v. State of Alaska, 944 F.2d
548, 554 (9th Cir. 1991) ("Congress is presumed to be
knowledgeable about existing law pertinent to any new legislation
it enacts."); Hafling v. Inlandboatmen's Union of Pacific, 585
P.2d 870, 877 (Alaska 1978) ("it is assumed that whenever the
legislature enacts a provision, it has in mind previous statutes
relating to the same subject matter, and all should be construed
8. See also 46 U.S.C. 11101 (a), (b), (d) (specifying
"merchant"vessels), and 11106(d) (specifically excluding fishing
vessels) (Supp. 1992).
9. The Ninth Circuit similarly protects fishermen with
regard to conflicts over compensation. "[It is a] familiar
principle that seamen are the favorites of admiralty and their
economic interests [are] entitled to the fullest possible legal
protection." Carbone v. Ursich, 1954 A.M.C. 169, 175 (9th Cir.
10. The agreed upon amount is not difficult to determine.
The agreement was for five percent of the adjusted gross sale
value of the fish caught (not sold). The value was set before
the trip at eight cents per pound. The vessel owner must provide
the figure for the number of pounds caught.