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Bodzai v. Arctic Fjord, Inc. (10/15/99) sp-5195
Bodzai v. Arctic Fjord, Inc. (10/15/99) sp-5195
Notice: This opinion is subject to 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) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
MIKLOS BODZAI, )
) Supreme Court No. S-8828
Appellant, )
) Superior Court No.
v. ) 3AN-98-3151 CI
)
ARCTIC FJORD, INC., ) O P I N I O N
)
Appellee. ) [No. 5195 - October 15, 1999]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Dan A. Hensley, Judge.
Appearances: Gerald W. Markham, Law Offices
of Gerald W. Markham, and Mark A. Sandberg,
Sandberg, Wuestenfeld & Corey, Anchorage, for
Appellant. Kenneth G. Schoolcraft, Jr., Le
Gros, Buchanan & Paul, Anchorage, for
Appellee.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
This case involves Miklos Bodzai's appeal of the superior
court's dismissal of his personal injury action against Arctic
Fjord, Inc. The superior court decided that Alaska was an improper
forum for Bodzai's action based on a forum-selection clause in
Bodzai's employment contract with Arctic Fjord. Because Bodzai's
personal injury claims did not arise under the terms of his
employment contract, we reverse the superior court's dismissal.
2. FACTS AND PROCEEDINGS
Miklos Bodzai was injured while serving aboard the F/V
ARCTIC STORM. He was present on the fishing vessel pursuant to a
contract he signed with Arctic Fjord, Inc. in 1996.
Bodzai sued Arctic Fjord in Alaska state court. His
complaint alleged three basic causes of action: (1) maintenance,
cure, and unearned wages; (2) unseaworthiness; and (3) negligence.
Arctic Fjord moved to dismiss the complaint pursuant to two Alaska
Rules of Civil Procedure: Rule 3(d), which allows dismissal for
forum non conveniens; and Rule 12(b)(3), which allows dismissal for
improper venue. Arctic Fjord stated that this latter ground was
"on the basis of a contractual forum selection clause." The
relevant clause provided: "Any dispute which may arise under the
terms of this contract shall be determined by the courts in King
County, Washington."
The superior court granted Arctic Fjord's motion to
dismiss. It ruled that the forum-selection clause in Bodzai's
contract was valid and applied to Bodzai's claims. The dismissal
was without prejudice to Bodzai's right to re-file his complaint in
King County, Washington, the forum specified in the contract. The
superior court declined to address Arctic Fjord's alternative
grounds for dismissal -- namely, forum non conveniens.
Bodzai appeals.
3. DISCUSSION
1. Standard of Review
Whether the forum-selection clause is enforceable is a
question of law. We apply our independent judgment to such
questions.1
B. Bodzai's Claim for Maintenance and Cure Does Not
Arise under the Terms of His Employment Contract.
In the unique parlance of maritime law, a seaman's2 cause
of action for "maintenance and cure"is defined as follows:
"'Maintenance' is the right of a seaman to food and lodging if he
falls ill or becomes injured while in the service of the ship.
'Cure' is the right to necessary medical services. Both extend to
the maximum point of recovery."3 This duty on the employer's part
is an absolute one.4 The duty includes payment of the seaman's
wages "at least so long as the voyage is continued."5
In Brown v. State, we quoted the Supreme Court of the
United States for the proposition that "[t]he 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."6 We
further underlined this point by quoting from another Supreme Court
case that held that "[w]hen the seaman becomes committed to the
service of the ship the maritime law annexes a duty that no private
agreement is competent to abrogate."7 Further, we noted
approvingly in Brown that "[t]he federal courts have consistently
stated that sailors' rights to maintenance and cure cannot be
abrogated by contract."8
Arctic Fjord argues that "courts have recognized that a
seaman's right to maintenance and cure 'arises out of the contract
of employment.'" The Fifth Circuit cases that it cites do indeed
contain language to that effect;9 however, in Brown, we reached a
different conclusion, one more consistent with the Supreme Court's
jurisprudence on the matter. It is well-established that "this
court is not bound by decisions of federal courts other than the
United States Supreme Court on questions of federal law."10
The other case that Arctic Fjord cites in support of its
position is a Supreme Court opinion; however it, in fact, supports
Bodzai on this issue. In Cortes v. Baltimore Insular Line, Inc.,
Justice Cardozo held that the duty of a maritime employer to
provide injured seamen with maintenance and cure "is one annexed by
law to a relation, and annexed as an inseparable incident without
heed to any expression of the will of the contracting parties."11
In other cases, the Supreme Court has likewise noted: "In the
United States the obligation has been recognized consistently as an
implied provision in contracts of marine employment."12 Therefore,
it cannot be said that Arctic Fjord's duty "arises under the terms"
of the contract Bodzai signed. Rather, whatever those terms, the
duty to provide maintenance and cure was annexed to that contract
by operation of law.
The Supreme Court reaffirmed the breadth of the right to
maintenance and cure and its divorce from contractual limitation in
Farrell v. United States:13
It has been the merit of the seaman's right to
maintenance and cure that it . . . can be . .
. administered without technical
considerations. . . . For any purpose to
introduce a graduation of rights . . . based
on some relative proximity of the activity at
time of injury to the "employment"or the
"service of the ship"would alter the basis
and be out of harmony with the spirit and
function of the doctrine. . . .[14]
The apparent confusion in Arctic Fjord's argument on this
point is well addressed by a leading commentary on maritime law,
Gilmore and Black's treatise. "The right to maintenance and cure
arises when the seaman signs articles and continues until he has
received his discharge. It is the fact of employment, or, more
accurately, the fact that the seaman is engaged in the service of
the ship which creates the right and not the form of contract: a
term in a contract under which the seaman purported to waive the
right would unquestionably be held void."15
The argument that the maintenance and cure duty "arises
under the terms"of Bodzai's contract, then, is inconsistent with
both this court's and the Supreme Court's precedent, as well as
with scholarly opinion. Arctic Fjord provides no compelling reason
for us to depart from this precedent. Bodzai's claims for
maintenance and cure are not controlled by the contract's forum-
selection clause, and the superior court erred in dismissing the
claims for improper venue.
C. Bodzai's Claim for Unseaworthiness Does Not Arise
under the Terms of His Employment Contract.
It is even more clear that Bodzai's right to recover
against Arctic Fjord for unseaworthiness does not "arise under"the
terms of his employment contract. The basis for a seaman's right
to recovery under this theory is "the shipowner's duty to provide
a seaworthy vessel."16 As we held in Brown, the duty "to provide
a vessel and appurtenances reasonably fit for their intended use"
is absolute.17
In Brown, we adopted the Supreme Court's holding in
Sieracki that "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."18
We went on to emphasize that, like an employer's duty to provide
maintenance and cure, "[t]he right to recover under the doctrine of
seaworthiness is also plainly not susceptible to contractual
modification."19 We quoted the Supreme Court in driving this point
home: "[T]he necessary consequences of this absolute duty are that
the obligation of seaworthiness cannot be shifted about, limited,
or escaped by contracts or the absence of contracts and that the
shipowner's obligation is rooted, not in contracts, but in hazards
of the work."20
Therefore, Bodzai's argument that his seaworthiness claim
does not "arise under"the terms of his employment contract is
correct. The superior court should not have dismissed this claim
based on the contract's forum-selection clause.
4. Bodzai's Jones Act Claim Does Not Arise under the
Terms of His Employment Contract.
Bodzai's final claim, that Arctic Fjord negligently
caused his injuries, is encompassed by the federal Jones Act.21 The
Jones Act provides, in part: "Any seaman who shall suffer personal
injury in the course of his employment may . . . maintain an action
for damages at law . . . ."22 In enacting the Jones Act, Congress
apparently "intended to change the maritime law as stated in The
Osceola under which an injured seaman could recover more than his
maintenance and cure only in an action based on unseaworthiness and
could not recover damages for negligence of master or crew in the
navigation or management of the ship."23
Just as Bodzai's common-law maritime claims do not "arise
under the terms"of his employment contract, neither does his Jones
Act claim.24 Rather, this claim "arises under"the Jones Act
itself, which "provides a right of action for injury or death to
sailors caused by the negligence of their employers."25 The right
is dependent on the employment contract only inasmuch as the
contract creates the employer-employee relationship, which is a
predicate for liability to attach.26
5. Whether Arctic Fjord May Gain a Dismissal for Forum
Non Conveniens is Irrelevant to this Appeal.
Finally, Arctic Fjord cites several forum non conveniens
cases in which seamen were denied their choice of forum. These
cases are not relevant to this appeal. As one of the cases cited
by Arctic Fjord states, the forum non conveniens determination "is
committed to the sound discretion of the trial court."27 Multiple
factors are to be weighed when trial courts make these decisions.28
In contrast, the question of the enforceability of the forum-
selection clause in Bodzai's contract is a purely legal issue, not
the sort of fact-intensive, flexible inquiry undertaken when trial
courts examine forum non conveniens motions.
This case itself demonstrates why the two issues may not
be collapsed. If the facts are as Arctic Fjord alleges, Arctic
Fjord may prevail on its forum non conveniens theory, which it made
in the alternative in the trial court, despite the unenforceability
of the forum-selection clause. Arctic Fjord states that "[t]he
parties and this litigation have numerous contacts with the State
of Washington and virtually none with Alaska,"and then goes on to
list in detail what those contacts are. A superior court might
find -- after full opportunities for both sides to present their
evidence and argument -- that Bodzai's action should be dismissed
on forum non conveniens grounds, or it might not. We express no
opinion on the proper determination of that issue. But it is a
separate issue from the efficacy of the contractual forum-selection
clause. The summary dismissal of Bodzai's suit based on the
contractual forum-selection clause was improper as a matter of law.
4. CONCLUSION
The superior court erred when it dismissed Bodzai's
claims based on the forum-selection clause, because Bodzai's claims
do not "arise under the terms"of his employment contract.
Accordingly, the superior court's order is REVERSED and the case is
REMANDED for further proceedings.
Footnotes:
1 See Abbott v. State, __ P.2d __, Op. No. 5115 at 5 n.6
(Alaska, May 14, 1999) (citing Langdon v. Champion, 752 P.2d 999,
1001 (Alaska 1988); Gudenau & Co. v. Sweeney Ins., Inc., 736 P.2d
763, 766-67 (Alaska 1987)).
2 The term "seaman"is a maritime law term of art, not
exclusive to one gender.
3 Brassea v. Person, __ P.2d ___, Op. No. 5158 (Alaska,
August 13, 1999) at 5 (quoting 1 Thomas J. Schoenbaum, Admiralty
and Maritime Law, 348 (2d ed. 1994)).
4 See Brown v. State, 816 P.2d 1368, 1371 (Alaska 1991)
("This duty does not depend upon fault.") (quoting De Zon v.
American President Lines, 318 U.S. 660, 667 (1943)) (internal
quotation marks omitted).
5 Grant Gilmore & Charles L. Black, Jr., The Law of
Admiralty § 6-2, at 275 (2d ed. 1975) (quoting The Osceola, 189
U.S. 158 (1903)).
6 Brown, 816 P.2d at 1371 (quoting Cortes v. Baltimore
Insular Line, Inc., 287 U.S. 367, 371 (1932)) (internal quotation
marks omitted).
7 Id. (quoting De Zon, 318 U.S. at 667) (internal quotation
marks and ellipsis omitted).
8 Id. at 1373 (citing Cortes, 287 U.S. at 371; Gardiner v.
Sea-Land Serv., Inc., 786 F.2d 943, 946 (9th Cir. 1986); Barnes v.
Andover Co., 900 F.2d 630, 637 (3d Cir. 1990)).
9 See Marinechance Shipping, Ltd. v. Sebastian, 143 F.3d
216, 221-23 (5th Cir. 1998) (holding that contract clause providing
that Philippine court had "original and exclusive jurisdiction over
any and all disputes or controversies arising out of or by virtue
of this Contract"applied to seamen's personal injury claims);
Baker v. Raymond Int'l, Inc., 656 F.2d 173, 185 (5th Cir. Unit A
Sept. 1981) ("Although an injured seaman's right to these forms of
support is implied by law, it 'arises out of the contract of
employment.'") (citations omitted).
10 Totemoff v. State, 905 P.2d 954, 963 (Alaska 1995)
(citation omitted).
11 Cortes, 287 U.S. at 372 (emphasis added).
12 Aguilar v. Standard Oil Co., 318 U.S. 724, 730 (1943)
(emphasis added) (citing Harden v. Gordon, 11 F. Cas. 480, 482
(C.C.D. Maine 1823) (No. 6,047); The Atlantic, 2 F. Cas. 121, 130
(C.C.S.D.N.Y. 1849) (No. 620); Cortes, 287 U.S. at 371).
13 336 U.S. 511 (1949).
14 Id. at 516.
15 Gilmore & Black, supra note 5, § 6-7, at 287 (emphasis
added) (footnotes omitted).
16 Brown at 1372 (citing Gilmore and Black, supra note 5, §§
6-38 to 6-44(a), at 383-404).
17 Id. (citations omitted).
18 Id. at 1372 (emphasis added) (quoting Seas Shipping Co.
v. Sieracki, 328 U.S. 85, 94-95 (1946)).
19 Id. at 1373 (citing Sieracki, 328 U.S. at 94-95).
20 Id. at 1375 (quoting Sieracki, 328 U.S. at 95; Reed v.
S.S. Yaka, 373 U.S. 410, 414-15 (1963)) (internal citations and
quotation marks omitted) (emphasis added).
21 46 U.S.C. App. § 688(a) (1999).
22 46 U.S.C. App. § 688(a).
23 Gilmore & Black, supra note 5, § 6-20, at 325 (reviewing
legislative text and history).
24 See Lauritzen v. Larsen, 345 U.S. 571, 588 (1953)
(holding that "a Jones Act suit is for tort"and "does not seek to
recover anything due under the contract or damages for its
breach").
25 Brown, 816 P.2d at 1372.
26 See Gilmore & Black, supra note 5, § 6-21(a), at 337.
27 Bromley v. Mitchell, 902 P.2d 797, 800 (Alaska 1995)
(quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981)).
See also Crowson v. Sealaska Corp., 705 P.2d 905 (Alaska 1985).
28 In Crowson we identified some of these factors: "[T]he
ease of access of proof, the availability and cost of obtaining
witnesses, the possibility of harassment of the defendant in
litigating in an inconvenient forum, the enforceability of the
judgment, the burden on the community in litigating matters not of
local concern, and the desirability of litigating local matters in
local courts."
