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Hughes et al v. Foster Wheeler Co. et al (3/7/97), 932 P 2d 784
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NOTICE: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested to bring
errors to the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, phone (907) 264-0607, fax (907)
264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
JOHN R. HUGHES, BLAND L. CASTANO,)
ERLING O. TRONNES, FLOYD KING, ) Supreme Court No. S-6928
HARRY DIVESTEIN, CARSTEN HJELLE, )
EDDIE T. OVERTON, ROBERT L. ) Superior Court No.
REYNOLDS, ROBERT P. BERGH, SAMUEL) 1JU-92-1855 CI
DERIKRAVA, ROQUE P. NAVARRO, )
ZENON J. PINTO, ANDREW S. ) O P I N I O N
MARSHALL, RUBEN GUERRA, )
FELICIANO SALCIDO, CREIGHTON E. ) [No. 4790 - March 7, 1997]
MILLER, Administrator of the )
Estates of Pok Tung Lee, William )
O. Anderson, Allan F. Berlund, )
Warren J. Henry, Edward T. )
Kusman, Peter J. Corvia, Leroy L.)
Mobley, James I. Payne, Robert )
Cranston, Malcolm Rogers, Lloyd )
Borland, Lucius McCall, James M. )
Goo, Alfred W. Franklin, and )
Frank W. Barber, )
)
Appellants, )
)
v. )
)
FOSTER WHEELER CO., CROWN CORK & )
SEAL CO., INC., GARLOCK, INC., )
ACandS, INC., MOBIL OIL CORP., )
PHILLIPS PETROLEUM CO., GATKE )
CORP., POPE & TALBOT CO., GENERAL)
ELECTRIC CO., FIBREBOARD CORP., )
PLIBRICO CO., TIDEWATER OIL CO., )
TEXACO INC., JOHN CRANE- )
HOUDAILLE, INC., UNITED STATES )
STEEL CORP. a/k/a USX CORP., )
OWENS-ILLINOIS, INC., ANCHOR )
PACKING CO., ALASKA STEAMSHIP )
CO., and THE SO-CALLED "CCR )
DEFENDANTS": A.P. GREEN REFRAC- )
TORIES CO., ARMSTRONG WORLD )
INDUSTRIES, INC., CERTAINTEED )
CORP., FLEXITALLIC, INC., GAF )
CORP., NATIONAL GYPSUM CO., U.S. )
GYPSUM CO., and UNION CARBIDE )
CORP., )
)
Appellees. )
_________________________________)
Appeal from the Superior Court of the State of
Alaska, First Judicial District, Juneau,
Larry R. Weeks, Judge.
Appearances: Leonard C. Jaques and Robert J.
Allen, The Maritime Asbestosis Legal Clinic, A
Division of the Jaques Admiralty Law Firm,
Detroit, Michigan, for Appellants. Jennifer
M. Coughlin, Preston, Gates & Ellis,
Anchorage; Jean L. Bertrand, Morgenstein &
Jubelirer, San Francisco, California; Rogert
Holmes, Biss & Holmes, Anchorage; and Thomas
M. Peterson and Michael B. Green, Brobeck,
Phleger & Harrison, San Francisco, California,
for Appellees.
Before: Compton, Chief Justice, Rabinowitz,
and Fabe, Justices. [Matthews and Eastaugh,
Justices, not participating.]
RABINOWITZ, Justice.
I. INTRODUCTION
Thirty merchant mariners filed complaints against various
shipowners and asbestos manufacturers alleging personal injuries
and wrongful deaths caused by exposure to asbestos while they
served aboard various vessels. The cases were dismissed on grounds
of forum non conveniens. This is an appeal from the superior
court's award of attorney's fees and costs under Alaska Civil Rule
82 entered in conjunction with its forum non conveniens dismissal.
II. FACTS AND PROCEEDINGS
The attorneys for the thirty merchant mariners filed
thirty similar complaints in three different superior courts of the
State of Alaska, naming multiple defendants. The suits alleged
personal injuries and wrongful deaths caused by exposure to
asbestos and other substances while the seamen were in the merchant
marine. Appellees (Foster) removed twenty-eight of the thirty
cases to federal district court, which remanded the cases to state
court. On motion of the mariners, the superior court consolidated
all thirty cases for the "purposes of hearing [Foster's] motion to
dismiss on personal jurisdiction and forum non conveniens"grounds.
The superior court granted the motion to dismiss on forum
non conveniens grounds. (EN1) The superior court then awarded
Foster $134,905.46 in attorney's fees and $106,782.36 in costs,
(EN2) finding Foster the "prevailing party"pursuant to Civil Rule
82. The mariners appeal the superior court's award of attorney's
fees and costs. (EN3)
III. DISCUSSION
A. The Superior Court Correctly Applied Civil Rule 82.
The mariners argue that admiralty law does not provide
for awards of attorney's fees and costs, and therefore the superior
court erroneously awarded costs and attorney's fees to Foster
pursuant to Civil Rule 82. (EN4)
1. Since the case was dismissed pursuant to the
doctrine of forum non conveniens, any prohibition
on the award of attorney's fees pursuant to
admiralty law is irrelevant.
These consolidated cases were dismissed pursuant to the
doctrine of forum non conveniens. The United States Supreme Court
recently held that the doctrine of forum non conveniens is not a
part of admiralty law. American Dredging Co. v. Miller, 510 U.S.
443 (1994). The court wrote, "[T]he doctrine of forum non
conveniens neither originated in admiralty nor has exclusive
application there. To the contrary, it is and has long been a
doctrine of general application." Id. at 450.
Even if the mariners are correct in arguing that cases
decided pursuant to federal admiralty law cannot support awards of
attorney's fees and costs, that argument is inapplicable to a case
resolved by a dismissal pursuant to the doctrine of forum non
conveniens. Accordingly, we hold that the superior court did not
err in finding that attorney's fees and costs could be awarded
pursuant to Civil Rule 82. (EN5)
2. Admiralty law does not prohibit the superior court
from awarding attorney's fees and costs pursuant to
Civil Rule 82.
Even assuming that admiralty law applies to an admiralty
case dismissed in the superior court pursuant to a forum non
conveniens motion, admiralty law does not prohibit the award of
attorney's fees and costs in admiralty cases decided in state
courts under the savings to suitors jurisdiction.
The United States Constitution provides that the federal
judicial power "shall extend . . . to all Cases of admiralty and
maritime Jurisdiction." U.S. Const., art. III, sec. 2, cl. 1.
However, federal courts do not have exclusive jurisdiction over
maritime and admiralty cases. 28 U.S.C. sec. 1333 provides in part
that
[t]he 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
other remedies to which they are otherwise
entitled.
The United States Supreme Court has interpreted this language to
allow state courts to entertain admiralty and maritime cases. See,
e.g., American Dredging Co., 510 U.S. at 442-43. However state
courts may not
"attempt to make changes in the 'substantive
maritime law.'" That proviso is violated when
the state remedy "works material prejudice to
the characteristic features of the general
maritime law or interferes with the proper
harmony and uniformity of that law in its
international and interstate relations."
Id. at 447 (citations omitted).
The mariners make two arguments as to why Alaska Civil
Rule 82 would violate "substantive maritime law." First, they
claim that, historically, attorney's fees and costs have been
prohibited in admiralty cases, and that any award thereof would
"work[] material prejudice to the characteristic features of the
general maritime law." Second, the mariners argue that allowing an
award of attorney's fees and costs is an improper intrusion of a
state into "substantive maritime law"when viewed from a policy
perspective. Specifically they argue that awarding attorney's fees
and costs would "interfere[] with the proper harmony and uniformity
of [admiralty] law in its international and interstate
relations[.]"
We note as a preliminary matter that, if the mariners are
to prevail, Williams v. Eckert, 643 P.2d 991 (Alaska 1982), must be
overruled. In Williams, we held that federal admiralty law did not
prohibit the application of Civil Rule 82 in awarding attorney's
fees in admiralty cases heard in our superior courts. We stated:
Eckert sued in state court to recover his
vessel. One of the remedial adjuncts of that
suit was the right to recover attorney's fees
under Alaska Civil Rule 82, if he prevailed.
Congress has not prohibited such an award in
state actions arising out of the admiralty
jurisdiction of the United States. Moreover,
an award of attorney's fees in a state court
does not frustrate or displace the essential
features of substantive maritime law. It is
merely remedial in nature.
Id. at 997. The mariners claim that Williams v. Eckert conflicts
with federal law.
a. The "American Rule"regarding attorney's fee
awards is not "characteristic"of admiralty
law.
The mariners claim that federal admiralty law
historically has prohibited awards of attorney's fees and therefore
the award of attorney's fees was error. We disagree.
The mariners cite no federal statute, but rely on the
federal and admiralty common law to support their argument that
awards of attorney's fees are prohibited in admiralty cases. (EN6)
None of the cases cited by the mariners are relevant to this case
because the cited cases involve situations where federal admiralty
law is litigated in federal court. In general, all federal courts
(and all state courts with the exception of Alaska) follow the
"American rule,"pursuant to which neither party is entitled to an
award of attorney's fees. See Home Savings Bank v. Gillam, 952
F.2d 1152, 1162 (9th Cir. 1991) ("Since the Supreme Court's
decision in Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421
U.S. 240; 44 L. Ed. 2d 141 (1975), the rule in federal courts has
been that, absent an express statutory command, attorney's fees
will not be awarded in civil cases.").
The prohibition against awarding attorney's fees in
admiralty cases stems not from admiralty law itself, but rather
from the fee-shifting rules used in most American courts. In The
Baltimore, 75 U.S. 377 (1869), the United States Supreme Court
refused to allow attorney's fees. However, the Court did not rely
upon admiralty law, but relied on a generally applicable law passed
by Congress in 1853. More recently, in Vaughn v. Atkinson, 369
U.S. 527 (1962), the Court allowed attorney's fees to be awarded in
admiralty cases where equity demands it. As equity must be invoked
in order to award attorney's fees, the decision implies that
attorney's fees may not be awarded in the majority of admiralty
cases; (EN7) however, the case does not state that the prohibition
is a part of admiralty law itself.
Finally, the United States Supreme Court discussed the
history of fee awards in American law in Alyeska Pipeline Service
Co. v. Wilderness Society, 421 U.S. 240 (1975). From the late
1700s until 1800, Congress provided for attorney's fee awards in
admiralty cases. Id. at 248-49. In 1853 Congress passed a
statute, applicable to all federal litigation, which abolished
awards of attorney's fees and costs to the prevailing parties in
federal courts. Id. at 251-52. This statute appears to be the
basis for the tradition in federal courts prohibiting awards of
attorney's fees and costs.
Thus, the mariners correctly argue that attorney's fees
historically have been denied in admiralty cases in federal courts.
However, this prohibition on attorney's fees results more from
coincidence than design. The vast majority of admiralty cases in
America have been heard in jurisdictions (usually federal, but
sometimes state) that do not provide for awards of attorney's fees
to the prevailing party. The mariners have not shown that
admiralty law itself prohibits awards of attorney's fees.
Therefore, we disagree with the mariners that it is characteristic
of admiralty law to prohibit attorney's fees. Rather, it is
characteristic of the "American Rule"which predominates in most
courts where admiralty cases are tried.
b. Civil Rule 82 need not yield in order to
protect the uniformity required by admiralty
law.
The mariners can prevail if they can show that a
prohibition on attorney's fees is necessary to maintain "the proper
harmony and uniformity of [admiralty] law in its international and
interstate relations." American Dredging Co., 510 U.S. at 447.
The mariners rely on the "reverse-Erie doctrine"which
the United States Supreme Court has applied when deciding whether
to apply state or federal law in admiralty cases. The doctrine
"requires that the substantive remedies afforded by the States
conform to governing federal maritime standards." Offshore
Logistics Inc. v. Tallentire, 477 U.S. 207, 222 (1986). Erie
Railroad Co. v. Tompkins, 304 U.S. 64 (1938), directs federal
courts sitting in diversity to apply state substantive law and
federal procedures. Conversely, the mariners argue that the
"reverse-Erie doctrine"directs state courts hearing admiralty
cases to apply state procedural law and federal substantive law.
The mariners also contend that a regular Erie analysis would hold
rules regarding awards of attorney's fees to be substantive law.
They thus conclude that federal rather than state fee rules should
be applied here.
This analysis, however, misconstrues the "reverse-Erie
doctrine." A post-Tallentire case, Exxon Corp. v. Chick Kam Choo,
817 F.2d 307 (5th Cir. 1987), overruled on other grounds by Chick
Kam Choo v. Exxon Corp., 486 U.S. 140 (1988), contains an
instructive discussion of the doctrine. Directly addressing an
argument similar to that made by the mariners, the Fifth Circuit
stated:
We reject this facile syllogism; drawing
conclusions from metaphors is dangerous. The
reason that state court procedures are not
preempted by maritime law is that they almost
never . . . conflict with it. When they do,
however, it is clear that they must yield.
. . . .
Because the Erie diversity doctrine and
the "reverse-Erie"maritime doctrine spring
from distinct principles and policies, there
is no reason to expect a perfect symmetry
between them. In the Erie context, the
substance/procedure dichotomy is simply
shorthand for distinctions that must be drawn
on the basis of policies underlying the
doctrine. The "reverse-Erie"question is
whether the inconsistent state law, whether
deemed a matter of substance or procedure,
conflicts with maritime law.
Exxon, 817 F.2d at 319 (emphasis added, footnotes omitted).
According to the Fifth Circuit, it is irrelevant whether
the disputed doctrine is substantive or procedural. The United
States Supreme Court, since Tallentire, also has repudiated any
suggestion that the relevant analysis turns solely on whether the
disputed doctrine is procedural or substantive. In American
Dredging Co., Justice Scalia, writing for the Court, said that
states are prohibited from any
"attempt to make changes in the 'substantive
maritime law.'" That proviso is violated when
the state remedy "works material prejudice to
the characteristic features of the general
maritime law or interferes with the proper
harmony and uniformity of that law in its
international and interstate relations."
510 U.S. at 447 (citations omitted.) The Court did proceed to
discuss whether forum non conveniens was a procedural or
substantive doctrine; however, the court used the distinction
merely as a guide. Id. at 453-55. Equally important to the
analysis was whether the disputed doctrine is likely to produce
"uniform results." Id. at 453. Justice Souter makes this point in
his concurrence:
I join in the opinion of the Court because I
agree that in most cases the characterization
of a state rule as substantive or procedural
will be a sound surrogate for the conclusion
that would follow from a more discursive
preemption analysis. The distinction between
substance and procedure will, however,
sometimes be obscure. As to those close
cases, how a given rule is characterized for
purposes of determining whether federal
maritime law pre-empts state law will turn on
whether the state rule unduly interferes with
the federal interest in maintaining the free
flow of maritime commerce.
Id. at 457-58 (Souter, J., concurring).
We think the relevant question is whether Alaska's Civil
Rule 82 regarding attorney's fees and costs interferes with the
uniformity traditionally required in admiralty law. The majority
opinion in American Dredging Co. articulates that the state law
must yield if it "interferes with the proper harmony and uniformity
of that law in its international and interstate relations."
Elsewhere in its opinion, the Court says that state laws generally
must yield when they are unlikely to produce "uniform results."
Justice Souter's concurrence phrases the question as "whether the
state rule unduly interferes with the federal interest in
maintaining the free flow of maritime commerce."(EN8)
American Dredging Co. distinguishes between state laws
that influence "primary"behavior and "secondary"behavior of
litigants. "Primary behavior"involves out-of-court conduct, or
"how to manage their business and what precautions to take." Id.
at 454. "Secondary behavior"involves decisions relating to "where
to sue or where one is subject to being sued."Id. In the
majority's view, the doctrine of forum non conveniens does not
influence either primary or secondary behavior.
Resolution of the forum non conveniens issue in any given
case is within the discretion of the trial court. As parties
cannot predict in advance the trial court's decision, the issue can
have little or no influence on secondary behavior.
With respect to primary behavior, it is highly doubtful
that parties -- either mariners or owners of vessels -- will alter
their business regimes or take different precautions due to the
risk that partial attorney's fees and costs can be awarded in favor
of the prevailing party against the losing party. Owners of
vessels already have sufficient reason to take precautions to
safeguard mariners working on their vessels, since they can and are
sued for unseaworthiness, personal injury, wrongful death, and
other causes of action when mariners are injured on-board. The
fact that Civil Rule 82 would allow a vessel owner, if successful
on the merits, to recoup partial attorney's fees and costs is not
a sufficient incentive for shipowners to scrimp on safety or change
their business management techniques. Similarly, the prospect that
mariners might recover partial attorney's fees and costs if they
successfully prosecute a suit hardly seems to be sufficient
incentive for them to carry out their duties in such a way that
would cause them to suffer injury.
The analysis of secondary behavior is more involved.
First, Civil Rule 82 will not substantially affect where plaintiffs
file suit. In all jurisdictions there is a chance that attorney's
fees and costs will be awarded. A plaintiff in an admiralty suit
who sues in courts of the State of Alaska knows that there is a
probability that partial attorney's fees and costs will be awarded
to the defendant if the defendant prevails. A plaintiff who files
suit in another jurisdiction (federal or state) knows only that,
pursuant to Vaughn, there is a possibility that attorney's fees
will be awarded in the exercise of the admiralty court's equity
power. While the likelihood of a fee award is higher in Alaska
than in other jurisdictions, the difference is not so great that it
would influence plaintiffs in their decision concerning where to
file suit. (EN9)
Any difference between state and federal law in admiralty
cases increases the risk of forum shopping to some degree. Even
so, courts have allowed the use of state wrongful death laws in
place of generally recognized federal maritime wrongful death law.
Yamaha Motor Corp. v. Calhoun, 116 S. Ct. 619 (1996). Courts also
have upheld state laws regarding the partition and sale of ships,
the specific performance of arbitration agreements, and the effect
of breach of warranty under contracts of maritime insurance.
American Dredging Co., 510 U.S. at 452 (quoting Romero, 358 U.S. at
373-74). The mere existence of a difference between state and
federal law does not dictate that the state law must yield. Here
Civil Rule 82 would be more likely to induce forum shopping than
any of these rules.
We conclude Civil Rule 82 regarding attorney's fees need
not yield to federal law. We therefore reaffirm Eckert, and hold
that the superior court was correct in applying Civil Rule 82 in
conjunction with its dismissal of the mariners' claims on the basis
of forum non conveniens.
B. The Superior Court Correctly held that the Defendants Are
Prevailing Parties.
The mariners argue that, since the case was dismissed
pursuant to the doctrine of forum non conveniens, the case was not
resolved on the merits, and Foster therefore cannot be the
prevailing party within the terms of Civil Rule 82. (EN10) We
recently considered the same argument in Bromley v. Mitchell, 902
P.2d 797 (Alaska 1995). We wrote:
[T]he trial court's award is legally supported
by our precedents and logically supported by
the fact that Mitchell has obtained a
judgment, binding on all Alaska courts, that
the claims against him must be resolved in
another forum. Under these circumstances, we
cannot conclude that the trial court abused
its discretion in determining that Mitchell
was the prevailing party.
Id. at 894. While the mariners ask us to reconsider and overrule
Bromley, they have not offered any new or persuasive arguments that
warrant reversal. The superior court did not abuse its discretion
by determining that Foster is the prevailing party within the terms
of Civil Rule 82.
C. The Superior Court Correctly Determined that the Mariners
Are Jointly and Severally Liable for the Attorney's Fees.
In imposing its award of attorney's fees, the superior
court wrote:
Where consolidation was granted at the request
of plaintiffs' counsel, and briefing on behalf
of the plaintiffs was "global,"treating all
plaintiffs as one entity, joint and several
responsibility for attorney's fees is
appropriate.
The mariners argue that the imposition of joint and
several liability for the award of attorney's fees and costs is
impermissible in Alaska. Specifically, they argue that AS
09.17.080(d) prohibits the imposition of joint and several
liability. We disagree. (EN11)
Alaska Statute 09.17.080(d) states in relevant part:
The court shall enter judgment against each
party liable on the basis of several liability
in accordance with that party's percentage of
fault.
The statute applies to findings of fault, whereas awards of
attorney's fees and costs pursuant to Civil Rule 82 are not
indicative of or dependent upon findings of fault. Civil Rule
82(e) states, "In a case in which damages are apportioned among the
parties under AS 09.17.080, the fees awarded to the plaintiff under
(b)(1) of this rule must also be apportioned among the parties
according to their respective percentages of fault." The clear
implication is that, in types of litigation where AS 09.17.080 is
not invoked, attorney's fees need not be apportioned by fault.
Here there were no damages awarded pursuant to 09.17.080, and it
follows that the statute is inapplicable to the award of attorney's
fees and costs in this case.
Moreover, since the statute's passage in 1987, this court
has suggested that awards of attorney's fees and costs for which
the non-prevailing parties are jointly and severally liable can
stand. In In re Soldotna Air Crash Litigation, 835 P.2d 1215, 1223
(Alaska 1992), we discussed our findings in Stepanov v.
Gavrilovich, 594 P.2d 30 (Alaska 1979):
[W]e held that when a defendant prevails
against multiple defendants who jointly moved
for consolidation of their cases, the trial
court could impose joint and several liability
for fees and costs. Such a ruling was within
the trial court's discretion.
In re Soldotna, 835 P.2d at 1223 (citation omitted). Additionally
we said:
In McGarvey, we indicated that the trial
courts have great discretion to adapt awards
of costs and fees to the unique circumstances
of a particular case.
Id. In Moses v. McGarvey, 614 P.2d 1363 (Alaska 1980), we said:
In Stepanov, the trial court imposed joint and
several liability on losing plaintiffs even
though they filed separate claims. We
affirmed because the same issue was involved
in each claim. It was thus within the trial
court's discretion to allocate the costs and
fees against the losing parties jointly and
severally.
McGarvey, 614 P.2d at 1367 n.5.
This reasoning applies to the instant case. "[T]he same
issue was involved in each claim,"namely, the issue of whether the
doctrine of forum non conveniens would perhaps further prosecution
of the case in the superior court. Therefore, the superior court
did not abuse its discretion by holding the mariners jointly and
severally liable for the award of attorney's fees. Neither this
court's precedents nor AS 09.17.080 mandate a contrary result.
(EN12)
D. The Superior Court Correctly Calculated the Size of the
Attorney's Fee Award Pursuant to Civil Rule 82.
The mariners argue that the award of attorney's fees of
$134,905.46 is unwarranted because "merchant seaman [sic] are the
wards of the Court, to be treated with great solicitude."(EN13)
They also maintain that the award is too large for them to satisfy
without suffering great distress in light of their indigency.
An award of attorney's fees will only be reversed for an
abuse of discretion, which exists if the award is arbitrary,
capricious, manifestly unreasonable, or the result of an improper
motive. Mt. Juneau Enterprises, Inc. v. Juneau Empire, 891 P.2d
829, 834 (Alaska 1995). The superior court found:
[T]he appropriate award of attorney's fees in
this case is 20% of the actual attorney's fees
necessarily incurred, up to $10,000. Pursuant
to Civil Rule 82 (b) (3), the court sets a
limit of $10,000 in fees awarded to each
defendant. The court bases its decision on
the fact that the case consisted entirely of
motion practice. In addition, the complexity
of the litigation, the attorney's efforts to
minimize fees, and the equities of the case
justify setting a maximum fees award of
$10,000. The court does not find the factors
in Civil Rule 82 (b) (3) A-K applicable to
enhance the award above 20%.[ (EN14)]
The attorney's fees awarded by the superior court were
not an abuse of discretion. The superior court set a limit of
$10,000 on the amount of attorney's fees awarded per defendant, in
effect departing downward from the Rule 82 schedule. The total
amount of the award of attorney's fees and costs is reflective of
the fact that the thirty mariners elected to sue a total of twenty-
six defendants in thirty separate actions. The award was therefore
proper.
IV. CONCLUSION
The superior court's award of attorney's fees and costs
is AFFIRMED.
ENDNOTES:
1. The mariners do not appeal this ruling.
2. The superior court excluded from its calculation attorney's
fees and costs incurred while the cases were removed to federal
court.
3. Subsequent to the filing of this appeal, the mariners sought
both a stay of execution and a waiver of the requirement that a
bond be posted. The superior court refused to waive the bond
requirement. Chief Justice Compton then ordered the superior court
to rule on the issue of whether the mariners were indigent. The
superior court found that the mariners were, as a class, indigent,
and waived the bond requirement.
4. The mariners did not argue before the superior court that
Civil Rule 82 does not apply to this case. Nonetheless, we have
previously stated that "if the alleged error is likely to result in
a miscarriage of justice, we will consider such error even though
not raised below." Holiday Inns of America v. Peck, 520 P.2d 87,
90 (Alaska 1974). Here the mariners would suffer injustice --
being forced to pay approximately $250,000 --if Rule 82 is
inapplicable. Therefore, we will review the decision below for
plain error.
Whether the superior court misapplied the applicable law is a
question of law. Harp v. ARCO Alaska, Inc., 831 P.2d 352, 356 n.5
(Alaska 1992). We review questions of law de novo. Langdon v.
Champion, 745 P.2d 1371, 1372 n.2 (Alaska 1987).
5. Our holding that attorney's fees and costs are awardable in
conjunction with a forum non conveniens dismissal necessarily
implies a rejection of the mariners' procedural-substantive reading
of American Dredging Co. v. Miller and Exxon Corp. v. Chick Kam
Choo, 817 F.2d 307 (5th Cir. 1987). See infra at section
III.A.2.(b).
6. We have upheld the application of a Congressionally-mandated
attorney's fees rule governing a claim based on federal law, even
when the federal attorney's fees rule differs from Alaska's Civil
Rule 82. See, e.g., Fairbanks Correctional Center Inmates v.
Williamson, 600 P.2d 743 (Alaska 1979) (holding that federal
attorney's fees statute applies to a claim based on 42 U.S.C. sec.
1983 brought in state court); Ferdinand v. City of Fairbanks, 599
P.2d 122 (Alaska 1979) (same).
7. Attorney's fees are awarded in federal admiralty actions for
maintenance and cure. In Royal Caribbean Corp. v. Modesto, 614 So.
2d 517, 520 (Fla. App. 1992), the court said:
[W]e find no conflict between Florida's rules
of law regarding offers of judgment and
federal maritime law. In federal admiralty
actions, an award of attorney's fees as a
component of maintenance and cure is
traditionally within the equitable
jurisdiction of the courts. Awards of
attorney's fees made pursuant to Florida law
regarding offers of judgment are intended to
deter unnecessary litigation and encourage
timely settlement of claims. . . . Because
Florida's rules relating to offers of judgment
are an integral part of this state's
management of its courts' proceedings and do
not conflict with federal admiralty law, we
reverse the order denying attorney's fees.
8. Justice Scalia warns that no bright-line rule can be applied:
It would be idle to pretend that the line
separating permissible from impermissible
state regulation is readily discernible in our
admiralty jurisprudence, or indeed is even
entirely consistent within our admiralty
jurisprudence.
American Dredging Co., 510 U.S. at 452.
A previous United States Supreme Court case stated that state
laws may be applied to admiralty law even "when they conflicted
with a rule of maritime law which did not require uniformity."
Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 374 (1959).
9. We note that Vaughn only addresses attorney's fees where they
are being awarded in favor of the plaintiff, while Rule 82
addresses fees being awarded in favor of either the defendant or
the plaintiff. However, there is nothing in the reasoning in
Vaughn that prohibits admiralty courts, using their equity powers,
from awarding attorney's fees in favor of defendants should the
proper case arise.
10. Decisions regarding awards of fees and costs are reviewed for
an abuse of discretion. Stepanov v. Gavrilovich, 594 P.2d 30, 36
(Alaska 1979).
11. The question of whether a statute is applicable to a given
case is a question of law. Harp v. Arco Alaska, Inc., 831 P.2d
352, 356 n.5 (Alaska 1992). Therefore, this court reviews the
issue on a de novo basis.
12. The mariners further argue that holding them jointly and
severally liable for the award of fees and costs would violate
their due process rights, since some plaintiffs would be liable to
defendants who were not named in individual suits. The mariners
cite a single case in support of their argument, but do not explain
how it applies to the present case, nor do they elaborate in any
way on this argument. Therefore, the argument is waived for lack
of sufficient briefing.
13. The special status of seamen is relevant when they sue their
employers; however, here the plaintiffs sued third parties. Brown
v. State, 816 P.2d 1368, 1371 (Alaska 1991).
14. Civil Rule 82(b)(2) and (3) provide:
(2) In cases in which the prevailing
party recovers no money judgment, the court
shall award the prevailing party in a case
which goes to trial 30 percent of the
prevailing party's reasonable actual
attorney's fees which were necessarily
incurred, and shall award the prevailing party
in a case resolved without trial 20 percent of
its actual attorney's fees which were
necessarily incurred. The actual fees shall
include fees for legal work customarily
performed by an attorney but which was
delegated to and performed by an investigator,
paralegal or law clerk.
(3) The court may vary an attorney's fee
award calculated under subparagraph (b)(1) or
(2) of this rule if, upon consideration of the
factors listed below, the court determines a
variation is warranted:
(A) the complexity of the litigation;
(B) the length of trial;
(C) the reasonableness of the attorneys'
hourly rates and the number of hours expended;
(D) the reasonableness of the number of
attorneys used;
(E) the attorneys' efforts to minimize
fees;
(F) the reasonableness of the claims and
defenses pursued by each side;
(G) vexatious or bad faith conduct;
(H) the relationship between the amount
of work performed and the significance of the
matters at stake;
(I) the extent to which a given fee award
may be so onerous to the non-prevailing party
that it would deter similarly situated
litigants from the voluntary use of the
courts;
(J) the extent to which the fees incurred
by the prevailing party suggest that they had
been influenced by considerations apart from
the case at bar, such as a desire to
discourage claims by others against the
prevailing party or its insurer; and
(K) other equitable factors deemed
relevant.
If the court varies an award, the court shall
explain the reasons for the variation.
Civil Rule 79 provides for the taxation of costs in favor of
"a party entitled to costs." The prevailing party standard of
Civil Rule 82 is used to determine the party entitled to costs.
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