301 F.Supp.2d 135 (2004) | Cited 7 times | D. Rhode Island | January 13, 2004


This matter comes before the Court on cross-motions for summaryjudgment, filed by both Plaintiffs and Defendants pursuant toFed.R.Civ.P. 56(c). Plaintiffs, Timothy Doyle (Doyle), Greg Hagaman(Hagaman), Brian Lague (Lague), Anthony W. Richards (Richards) and EricEdwards (Edwards), former deck hands on the fishing vessels Persistenceand Relentless, bring this suit against the ships' corporate owners,Defendants Huntress, Inc. and Relentless, Inc., alleging that thesecorporations failed to provide the Plaintiff seamen with writtencontracts prior to proceeding on several fishing voyages, as required by46 U.S.C. § 10601 (1988). Plaintiffs claim statutory damages under acompanion statute, 46 U.S.C. § 11107 (1983). Defendants opposePlaintiffs' motion and cross claim for summary judgment, alleging thattheir lay-share fishing agreements did not violate § 10601;Page 2that § 11107 creates no remedy for lay-share fishermen; and thatPlaintiffs' claims are barred by waiver and laches. For the reasonsarticulated herein, the Court concludes that there are no issues ofmaterial fact remaining as to the application of §§ 10601 and 11107 toPlaintiffs' claims, and grants partial summary judgment to Plaintiffs onthose issues, pursuant to Fed.R.Civ.P. 56(d). However, because the Courtrecognizes that genuine issues of material fact remain in dispute as tothe Defendants' defenses of laches and waiver, the Court deniesDefendants' cross-motion for summary judgment.

Facts and Travel

Between the years 1993 and 2000, Defendants employed each of thePlaintiffs at various times as deck hands and crewmen on the vesselsPersistence and Relentless, two fishing trawlers with home berths inDavisville, Rhode Island. The Persistence and Relentless are both 125foot, steel-hulled freezer trawlers, weighing in excess of 20 grosstons, and are the only fishing vessels permanently operating out of theport at Davisville.

The Defendant corporations utilized what is commonly referred to as the"lay-share system" in paying seamen working on their boats. On any givenfishing trip, the boat owners would employ approximately fourteen crewmenper trawler, and these crewmen would engage in commercial fishing alongthe New England and Mid Atlantic coastline, occasionally following fishfurtherPage 3south. After the voyage was over, the ship owners would take thetrip's catch and sell it for a profit, usually to a company calledSeaFreeze,1 who would then hold the fish in a shore-side freezer forup to a year and a half.

Once the fish were sold, Defendants would deduct the trip expenses, andthe remaining amount would reflect the net profits received from thefishing voyage. The ship owner would then retain a considerable portionof these profits, typically between 58 to 61 percent, and the remainingproceeds would be divided among the crewmen in the form of "shares." Eachcrewman who sailed with Defendants would be entitled to a share, or afraction of a share, of these remaining net proceeds gleaned from thetrip's catch. The size of each fisherman's share would be determined bythe vessel's captain based on the seaman's performance on the voyage, andwas not the product of bargaining or an agreement with the fishermanbefore leaving port. No crewmember would be told before the trip exactlywhat percentage of the catch he would receive when the voyage was over,as this determination was left to the discretion of the captain, based onPage 4his perception of a seaman's work during the trip. Generally, moreexperienced hands would perform better while out at sea, and thus wouldreceive a larger share, while less experienced seamen would perform lessoptimally, and as a result receive a smaller share of the proceeds.However, the percentage, or "share" due each fisherman was left entirelyto the captain's discretion, and no exact formula existed for determiningthe amount due each fisherman at the end of a voyage. Once the captaincalculated the amount due each fisherman, the Defendant corporationswould issue the seaman a check in that amount. No accounting of the tripwas provided to the fishermen, and they were not informed what particularpercentage or share of the proceeds their individual checks represented.

In some instances, this lay-share arrangement between the crewmen andthe ship owners was the product of an oral agreement between theparties, but the agreement itself was never reduced to any form ofwriting. On other occasions, Defendants would have the seamen sign a formagreement prior to embarkation provided by their insurance company. Thisdocument, entitled "FISHING AGREEMENT (As required under the terms of theCommercial Fishing Industry Vessel Safety Act of 1988, 46 United StatesCode Sec. 10601)" included the following language describing the crew'scompensation arrangement:

2. PAYMENT: The crewmember shall receive aPage 5 share of the crew's net proceeds from the trip. The crew's net proceeds are defined as a percent of the net sales received by the owner for the trip's catch, less trip expenses and any other expense mutually agreed upon by the owner and crewmember. The crew is to be responsible for his share of vessel expenses catch or no catch, catch lost or catch sold but uncollectible.

Plaintiffs' Motion for Summary Judgment, Appendices 5(a) and 6(a).

A later version of this form used by Defendants employs the samelanguage quoted above, but includes blanks for the amount of the seaman'sshare and the percentage of the catch to be divvied up amongst thecrewmembers. See Plaintiffs' Motion for Summary Judgment, Appendix 8(a).Defendants purposefully left these blanks empty when the crewmembersigned the agreement, as the seaman's share and the percentage ofproceeds due the crew were not determined by Defendants until after thetrip. These form "Fishing Agreement[s]" included a blank for the shipowner's signature, but they were never signed by either Huntress, Inc.,Relentless, Inc., or a designated representative of the applicablecorporation. Instead, the company's bookkeeper filled in these blankswith the name and address of Richard Goodwin, thePage 6President and primary shareholder of both Huntress, Inc. and Relentless,Inc.2 Goodwin does not recall specifically authorizing the bookkeeperto handwrite his name on these agreements.

Finally, on most trips the seamen would be required to sign a roster asthey boarded the boat. This roster was also signed by the ship's captain,and it included the following disclaimer above the crewman's signature: By signing my name to this crew roster, I agree to the terms and conditions of the fishing agreement for the vessel I am boarding.Plaintiffs' Motion for Summary Judgment, Appendix 3. Although thisstatement makes reference to a "fishing agreement" between the parties,in many cases this one written sentence is the only documentation bearingwitness to such an agreement. According to Goodwin, the central purposeof the crew rosters was not to serve as a fishing agreement, but ratherto keep track of who went out on the boat. See Goodwin Deposition at 13.Page 7

Plaintiffs Richards and Hagaman never signed any written fishingagreements with Defendants, although they did sign crew rosters whenboarding on most trips. Richards sailed on the Relentless for numeroustrips between July 1995 and November 2000. Hagaman sailed on theRelentless for five trips from March 1996 to July 1996.

Plaintiff Doyle was a crewmember on the Persistence from January 1996to March 1996 for approximately five trips, and on the Relentless fromJune 1995 to October 1997 for approximately 25 trips. Doyle never signeda written fishing agreement for his trips on the Relentless, however, hedid sign a form agreement, as described above, for his trips on thePersistence. This agreement is missing the year of its execution,however, Doyle believes it was signed January 18, 1996. Plaintiff Edwardssailed on the Persistence for approximately 49 trips, and on theRelentless for approximately four trips. His affidavit is silent as tothe dates of these trips. He signed no written fishing agreement for histrips on the Relentless, but, similar to Doyle, signed a form agreementdated June 19, 1993 for his trips on the Persistence.

Plaintiff Lague sailed on the Persistence for one trip in July 1996,and on the Relentless for several trips from July 1996 through February1999. Unlike the other fishermen who sailed on the Relentless, Lague didsign a written form fishing agreement,Page 8as described above, for his trips on that vessel. This agreement issigned July 15, 1996, and purports to cover only one year of sailing.Lague also signed a form agreement for his trip on the Persistence. ThisPersistence form agreement contains blanks, as described above, for theterms of Lague's share and the percentage of the proceeds assigned to thecrew.

As noted above, Plaintiffs were employed as deck hands on Defendants'vessels for different periods of time between the years 1993 and 2000. In2000, Plaintiffs' attorney, while reviewing settlement sheets forunrelated litigation, noticed that Defendants were paying theircrewmembers differing amounts per trip for the same work, and that nowritten agreements were executed prior to embarkation documenting theexact terms of the each fisherman's wage or share, as required by46 U.S.C. § 10601. According to Plaintiffs, this was their firstnotice that they were each paid different shares of the catch for thesame work on board the Persistence and the Relentless. As a result ofthis observation, Plaintiffs filed suit against Defendants, as well asthe different men serving as ship captains on the Persistence and theRelentless during the relevant time period, alleging that Defendants'violated § 10601, that Plaintiffs were entitled to statutory damagesunder § 11107, and common law breach ofPage 9contract claims against the individual defendants. During discovery,Plaintiffs voluntarily dismissed their breach of contract claims againstthe individual defendants. Thus, the only remaining issues in this caseare Plaintiffs' claims under § 10601 and § 11107 and the defensesthat Defendants raise to these claims. Now, this writer will analyze thecross-motions for summary judgment.


I. Jurisdiction

This case concerns a matter of admiralty law, and requires this Courtto interpret two statutory provisions regulating the employment ofseamen, 46 U.S.C. § 10601 and § 11107. As a result, this Courthas original jurisdiction of the matter pursuant to Article III, sec. 2,of the United States Constitution and 28 U.S.C. § 1331, the federalquestion jurisdiction statute.3 See 28 U.S.C. § 1331 (1980)("Thedistrict courts shall have original jurisdiction of all civil actionsarising under the Constitution, laws, or treatises of the UnitedStates.").

II. Standard of ReviewPage 10

The parties have filed cross-motions for summary judgment as to allremaining issues in this matter, pursuant to Fed.R.Civ.P. 56(c). Summaryjudgment is appropriate if the "pleadings, depositions, answers tointerrogatories, and admissions on file, together with the affidavits, ifany, show that there is no genuine issue of fact and that the movingparty is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).When a motion for summary judgment is filed, but "judgment is notrendered upon the whole case or for all the relief asked and a trial isnecessary," Fed.R.Civ.P. 56(d) enables the district court to "ascertainwhat material facts exist without substantial controversy and whatmaterial facts are in good faith controverted," and then issue an order"directing such further proceedings in the action as are just." Id. As aresult, Rule 56(d) acts as a tool for the district court to "narrow thefactual issues for trial." Rivera-Flores v. Puerto Rico Tel. Co.,64 F.3d 742, 747 (1st Cir. 1995).4Page 11

As has been previously observed, motions for partial summary judgmentunder Rule 56(d) are subject to the same standard of review as theircounterparts under Rule 56(c). Russell v. Enterprise Rent-A-Car Co. ofRhode Island, 160 F. Supp.2d 239, 249 (D.R.I. 2001). Therefore, summaryjudgment on any count is only appropriate when there is no dispute as toany material fact and only questions of law remain. Blackie v. Maine,75 F.3d 716, 721 (1st Cir. 1996). A material fact is one affecting thelawsuit's outcome under the applicable law. URI Cogeneration Partners,L.P. v. Board of Governors for Higher Education, 915 F. Supp. 1267, 1279(D.R.I. 1996). Factual disputes are genuine when "the evidence is suchthat a reasonable [trier of fact] could return a verdict for thenonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248(1986).

To win summary judgment on a particular issue, the moving party mustshow that "there is an absence of evidence to support" the nonmovingparty's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Inresponse, the nonmoving party cannot rest on its pleadings, but must "setforth specific facts demonstrating that there is a genuine issue fortrial" as to the claim at issue. Oliver v. Digital Equipment Corp.,846 F.2d 103, 105 (1st Cir. 1988). When facing cross-motions for summaryjudgment under either Rule 56(c) or (d), "the district court must resolveall genuine factual disputes in favor of the party opposing each suchPage 12motion and draw all reasonable inferences derived from the facts in thatparty's favor." Atlantic Fish Spotters Ass'n v. Evans, 321 F.3d 220, 223(1st Cir. 2003). However, at the summary judgment stage, there is "noroom for the measured weighing of conflicting evidence such as the trialprocess entails, no room for the judge to superimpose his own ideas ofprobability and likelihood." Greenburg v. Puerto Rico Mar. ShippingAuthority, 835 F.2d 932, 936 (1st Cir. 1987). When hearing a motion forsummary judgment, it is the responsibility of a trial judge to determinewhether a reasonable trier of fact could find for the nonmoving partybased on the admissible evidence, and to refrain from invading theprovince of the jury by weighing the evidence or making credibilitydeterminations. Mahan v. Boston Water & Sewer Comm'n., 179 F.R.D. 49,56 (D. Mass. 1998).

III. Lay-Share Fishing Agreements and 46 U.S.C. § 10601 (1988)

Plaintiffs' claim for relief rests upon this Court's interpretation oftwo statutes, 46 U.S.C. § 10601 (1988) and § 11107 (1983). Bothof these statutes appear in Part G of Subtitle II to Title 46 of theUnited States Code, entitled "Merchant Seamen Protection and Relief." TheCourt agrees with both Plaintiffs and Defendants that no genuine issuesof material fact remain regarding the application of these statutes toPlaintiffs' claim. When no genuine issues of fact remain for the trier offact on a particular issue, and only questions of lawPage 13are controverted, summary judgment is appropriate. See Fed.R.Civ.P. 56(c);Blackie, 75 F.3d at 721. Thus, as both Plaintiffs and Defendants arguethat they are entitled to summary judgment as a matter of law, thiswriter turns to the interpretation of § 10601 and § 11107, thestatutes at issue.

The first of these statutes, at the time Plaintiffs allege thatDefendants violated its tenets, read as follows: § 10601. Fishing agreements (a) Before proceeding on a voyage, the master or individual in charge of a fishing vessel, fish processing vessel, or fish tender vessel shall make a fishing agreement in writing with each seaman employed [sic] on board if the vessel is — (1) at least 20 gross tons . . .; and (2) on a voyage from a port in the United States. (b) The agreement shall also be signed by the owner of the vessel. (c) The agreement shall — (1) state the period of effectiveness of the agreement; (2) 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

(3) include other agreed terms.5Page 14

46 U.S.C. § 10601 (1988). Defendants argue that their lay-sharefishing agreements with the Plaintiffs, in all their forms, satisfy both"the language and spirit" of § 10601, and thus, Plaintiffs are notentitled to a recovery. Plaintiffs argue that Defendants did violate§ 10601 by failing to secure specific written agreements with eachfisherman prior to embarkation as the statute mandates. Determiningwhether Defendants violated this statute requires an examination of thestatutory language, determination of its meaning, and an application ofthe language to the facts of each Plaintiff's situation.

When interpreting a statute, the canons of construction dictate thatthe construing court must first look to the language of the provisionitself, and "assume that the words of the statute comport with theirordinary meaning, and that their ordinary meaning accurately expresseslegislative intent." Laaman v. Warden, New Hampshire State Prison,238 F.3d 14, 16 (1st Cir. 2001). Where the language of the statute isclear onPage 15its face, contains no ambiguities, and will not lead to an unreasonableresult when applied, then statutory construction should begin and endwith the language as written. Atlantic Fish Spotters, 321 F.3d at223-24. When statutory language "points unerringly in a singledirection, and produces an entirely plausible result, it is unnecessary— and improper — to look for other signposts or to browse inthe Congressional archives." U.S. v. Charles George Trucking Co.,823 F.2d 685, 688 (1st Cir. 1987).

This writer agrees with the Ninth Circuit that § 10601 is"perfectly clear facially." Seattle-First Nat. Bank v. Conway, 98 F.3d 1195,1197 (9th Cir. 1996). By its plain language, § 10601 requires thoseowning and operating fishing vessels of a certain weight out of UnitedStates ports to enter into written agreements with those seamen retainedto serve on board. The statute does not stop there, however. It furtherregulates these fishing agreements by statutorily proscribing whichparties are to sign the contract, when the contract will be executed, andwhat terms each agreement will include. Thus, § 10601 requiresfishing vessels weighing at least 20 gross tons and embarking from UnitedStates ports to satisfy the following requirements when retainingseamen:

1) The person in charge of the vessel must make a written contract with those seamen hePage 16 intends to retain for the fishing voyage.

2) There must be a separate contract with each seaman, entered into before leaving port, and signed by the owner of the vessel. 3) These agreements must state the effective time period, include the terms of any wage, share, or other compensation arrangement contemplated, and any other terms agreed upon by the seaman and the vessel owner.

Although Defendants do not dispute that § 10601 plainly applies toboth large fishing trawlers, such as the Persistence and the Relentless,and to the lay-share fishermen working such ships, Defendants ask thatthis Court refrain from interpreting § 10601 as requiring largefishing boat owners to enter into written contracts with their crewmenbefore leaving shore on a fishing voyage. Essentially, Defendants arguethat § 10601 does not foreclose the owners of fishing trawlers fromentering into oral contracts with their crewmembers, but, rather, workswith the following statutory subsection, 46 U.S.C. § 10602 (1988), toprovide a statute of limitations for filing suit as an incentive for thoseboat owners who choose to enter into written fishing agreements. Thus,Defendants suggest that this Court view §Page 17

10601 and § 10602 as a collective "carrot" held out to trawler ownersrather than a statutory "stick" intended to force ship owners'compliance. However, given the use of the mandatory term "shall"throughout § 10601, this writer finds Defendants' argumentunpersuasive.

Defendants also argue that interpreting § 10601 as requiringwritten contracts between ship owners and fishermen would lead to anunreasonable result, suggesting that such an interpretation wouldoverturn the age-old practice of fishing for lay-shares, a system thathas existed in New England and other areas for hundreds of years.Defendants argue that lay-share fishing is "the last true meritocracy,"because it allows fishermen of all ages and experience levels to ventureto sea on equal footing, and be compensated based on the quality of theirperformance. The vessel owners suggest requiring written contracts forlay-share fishermen would effect a substantial change in law and policynot intended by Congress when it rearranged and recodified federalmaritime law twice in the 1980s, thereby enacting § 10601 andrepealing is predecessor statute, 46 U.S.C. § 531 (rep. Sept. 9,1988), which had existed since 1813. In addition, they argue thatdevising term-specific contracts with lay-share fishermen before leavingport would be absurd, because the captain would have no basis forassigning appropriate shares to the different seamen without firstobserving the quality of their work.Page 18

Although Congress recodified § 531 as § 10601 in 1988, thisstatutory section regulating fishing agreements, since its earliestversion was enacted in 1813, has always required a written contractbetween working fishermen and those in charge of the vessel, and hasalways required the contract to be made before leaving port on thevoyage. See Crowell v. United States, 6 F. Cas. 912, 912-13 (D. Mass.1856) (observing that the "act of Congress of July 29, 1813 (3. Stat.52)" required ship masters of vessels in excess of twenty tons to makewritten fishing agreements with each fisherman "according to theprovisions of the act" before embarkation). Although recodified, first as§ 531, and then much later as § 10601, this language requiring apre-venture, term-specific, written fishing agreement for largefood-fishing vessels has remained constant over the years. Indeed, the1988 recodification merely extended the scope of the statute to apply toall fishing vessels in excess of twenty gross tons, regardless of thetype of fish pursued. See Manchester v. Massachusetts, 139 U.S. 240,264-65 (1891) (holding that the statute's prior codification, whichmentioned by name only cod and mackerel fisheries, applied to all foodfisheries).

Thus, the Court disagrees with Defendants that Congress did not intendto require written contracts for lay-share fishermen when it enacted§ 10601. On the contrary, this writer believes that Congress intendedto mandate written fishing agreementsPage 19negotiated prior to departure. Such an interpretation is consistent withthe age-old notion that Congressional action in admiralty cases islargely remedial in nature, devised to provide further protection for therights and needs of seamen, who have been traditionally viewed as wardsof the Court. See American Foreign Steamship Co. v. Matise, 423 U.S. 150,160 (1975); Garrett v. Moore-McCormack Co., Inc., 317 U.S. 239, 246(1942); Fuller v. Golden Age Fisheries, 14 F.3d 1405, 1408 (9th Cir.1994).

This Court disagrees with Defendants' assertion that devising termspecific contracts would lead to an absurd result. Mandating writtencontracts prior to embarkation merely fosters pre-voyage bargainingbetween the fisherman and the captain regarding what share of theproceeds a seaman is worth, and protects the fisherman from arbitrarydiscrimination by the captain once the voyage is underway. This statutoryinterpretation levels the playing field for the seaman, ensuring moreequal bargaining position between a fisherman and a vessel owner. Thus,this writer concludes that no unreasonable result would follow frominterpreting § 10601 to require written contracts for seamen sailingon large fishing vessels before leaving port.

Having interpreted the statute, this writer turns to the differenttypes of fishing agreements Defendants had withPage 20Plaintiffs. At issue are four types of fishing agreements utilized atdifferent times by Defendants: 1) oral agreements; 2) form agreementswith generic "share" language, signed by the fisherman and thecorporations' bookkeeper; 3) form agreements as described, but withblanks for the "share" terms; 4) crew roster sign-in sheets, withdisclaimer language. Plaintiffs argue that all of Defendants' purportedfishing agreements were insufficient to satisfy the requirements of§ 10601. The Court agrees.

By definition, oral agreements do not satisfy the statute, as §10601 requires Defendants to have written agreements with their crewmembers. Likewise, the crew roster sheets fail to meet the requirementsoutlined in § 10601, as they were not independently executed witheach seaman, were not signed by the vessel owner or a designatedrepresentative, and do not even attempt to describe the terms of afisherman's compensation arrangement or the effective dates ofengagement. The Court concludes that Defendants' disclaimer language atthe top of these sign-in rosters was insufficient to satisfy the writtencontract requirement of § 10601.

Further, both versions of the form agreements provided by Defendants'insurance company fail to satisfy the requirements outlined in §10601. Specifically, these agreements were required to specify the termsof each seaman's compensation arrangement, including the amount of theseaman's anticipatedPage 21"share" in the proceeds of the catch. See 46 U.S.C. § 10601 (c)(2)"The [fishing] agreement shall . . . include the terms of any wage,share, or other compensation arrangement peculiar to the fishery in whichthe vessel will be engaged. . . ."). Although the agreements do includegeneral language describing the concept of Defendants' lay-share paymentsystem, they are silent as to the specific size of each seaman'santicipated share and what percentage of the voyage proceeds wereintended to be divided amongst the crewmembers. Because Plaintiffs werefishermen working for shares, § 10601 required Defendants to include"the terms of any . . . share" each seaman could expect to receive inexchange for his work on the vessel during a given voyage. Failing toinclude these terms in a written contract before putting out to seaplaces Defendants in violation of the statute.

Defendants argue that these agreements satisfy § 10601 because thelanguage used adequately describes the "compensation arrangementpeculiar" to the lay-share fishing industry. This argument ignores thefact that Plaintiffs were working for shares, and thus, by the plainlanguage of § 10601, Defendants were required to include the specificterms of those shares in their written fishing agreements withPlaintiffs. However, putting aside the fact that Plaintiffs were workingfor shares, the existing agreements still fail to meet the requirementsof § 10601, as they fail to completely describe the terms of thePage 22compensation arrangement maintained by Defendants. The purported fishingagreements are silent as to who determines the appropriate share eachseaman will receive, what factors will be considered in making thisdetermination, when this determination will be made, and do not describeDefendants' policy of compensating different seamen with different sizeshares based on voyage performance. Because these essential terms weremissing from the agreements, they fail to satisfy the statute.Defendants' contracts with blanks are also deficient, as they evenfurther emphasize that certain essential terms of Defendants' fishingagreement with Plaintiffs were not memorialized in writing, as requiredby § 10601.

Defendants argue at length that their act of having the corporatebookkeeper for Huntress, Inc. and Relentless, Inc. handwrite "RichardGoodwin" on their fishing agreements with Plaintiffs satisfies that partof § 10601 requiring the owner's signature on the contract. Becausethis writer finds that all versions of the fishing agreements used byDefendants violate § 10601 because they omit necessary terms, theCourt need not address this argument. Thus, having determined thatDefendants violated § 10601 in their dealings with each of thePlaintiffs, the Court grants Plaintiffs' motion for summary judgment onthis issue. This writer now turns to the statutory consequences of such aviolation.Page 23

IV. Statutory Construction and 46 U.S.C. § 11107 (1983)

Plaintiffs argue that a statutory penalty for violating the mandatoryprovisions of § 10601 exists within a companion statute in the samePart and Title, 46 U.S.C. § 11107 (1983). This second statute readsas follows: § 11107. Unlawful engagements void An engagement of a seaman contrary to a law of the United States is void. A seaman so engaged may leave the service of the vessel at any time and is entitled to recover the highest rate of wages at the port from which the seaman was engaged or the amount agreed to be given the seaman at the time of the engagement, whichever is higher.46 U.S.C. § 11107 (1983).

The fishermen argue that Defendants' engagement of lay-share fishermenin violation of § 10601 constitutes the "engagement of a seamancontrary to a law of the United States," as described in § 11107.Thus, Plaintiffs ask this Court to rule that Defendants' purportedfishing agreements with Plaintiffs are void as a mater of law, and imposeon Defendants § 11107's statutory wage penalty as to each Plaintifffor all the voyages at issue. In support of this argument, Plaintiffsrely on decisions from the Ninth Circuit and the Alaska Supreme Courtinterpreting these two statutes in conjunction with one another, andholding that § 11107 provides a statutory default wage for lay-sharefishermen when ship owners fail to comply with the requirementsPage 24of § 10601. See Flores, 335 F.3d at 912; Harper v. United StatesSeafoods LP, 278 F.3d 971, 977 (9th Cir. 2002); TCW Special Credits v.Chloe Z Fishing Company, Inc., 129 F.3d 1330, 1333 (9th Cir. 1997);Seattle-First Nat. Bank, 98 F.3d at 1198; Bjornsson v. U.S. Dominator,Inc., 863 P.2d 235, 238-39 (Alaska 1993). This is a matter of firstimpression in this Circuit, and these reported decisions are the onlyones to have considered this issue since Congress reorganized, modified,and recodified our country's maritime laws in the 1980s.

The proper interpretation of § 11107 is also a question ofstatutory construction. As this writer stated previously, wheninterpreting a statute, the court must first consider the language aswritten by Congress, and when this statutory language is clear on itsface, and free of ambiguities, the statute must be applied as written.See Plumley v. Southern Container, Inc., 303 F.3d 364, 369, 371 n.5 (1stCir. 2002); Atlantic Fish Spotters, 321 F.3d at 223-24. Additionalstatutory construction by a court is only proper where a statute isambiguous, or would lead to an unreasonable result where applied. U.S.v. Charles George Trucking Co., 823 F.2d at 688.

After a thorough examination of § 11107, this writer must concludethat it is clear on its face, and not ambiguous or misleading. Thestatute plainly states that "[a]n engagement of a seaman contrary to alaw of the United States is void."Page 2546 U.S.C. § 11107. This admonition clearly applies to the engagementof any "seaman," as that term is defined within the statute, contrary tothe laws of the United States. Thus, because Defendants contracted withPlaintiffs in violation of § 10601, their purported fishingagreements were void as a matter of law, and Plaintiffs are nowstatutorily entitled to recover "the highest rate of wages at the portfrom which the seaman was engaged or the amount agreed to be given theseaman at the time of engagement, whichever is higher."46 U.S.C. § 11107.

It is clear that Plaintiffs, as lay-share fishermen, fall within thestatute's terminology. While it is true that § 11107 uses the term"seaman" rather than fisherman, this term's meaning within Part G is notambiguous. The definition section of Part G, 46 U.S.C. § 10101(1996), defines the term "seaman" as "an individual (except scientificpersonnel, a sailing school instructor, or a sailing school student)engaged or employed in any capacity on board a vessel." Thus, by theterms of the act itself, a lay-share fisherman is included within thedefinition of seaman. Furthermore, § 10601, which clearly deals withfishing agreements, describes lay-share fishermen as seamen. Finally,unlike some other sections within Part G, which specifically excludelay-share fishermen, § 11107 includes no such provision indicatingCongressional intent to limit thePage 26statute's application to merchant seamen. See, e.g., 46 U.S.C. § 10301(1996)(excluding vessels "on which the seamen are entitled by custom oragreement to share in the profit or result of a voyage");46 U.S.C. § 10509 (1983) (excluding fishing vessels and yachts).6Therefore, this writer is confident that § 11107'sPage 27"seaman" language cannot be held to exclude lay-share fishermen, andagrees with the Ninth Circuit that § 11107 is available for thesefishermen "as a statutory default to prevailing market wage in the caseof an invalid contract." Harper, 278 F.3d at 977.7

Defendants disagree with this thesis, arguing that § 11107 doesnot, and was never intended to apply to lay-share fishermen, but ratheronly to merchant seamen. To support this argument, Defendants delvedeeply into the legislative history of UnitedPage 28States admiralty law, which historically treated fishermen and merchantseamen differently. Defendants argue that this historical difference,combined with a review of the legislative history of § 11107 and itspredecessors, suggests a contrary reading of this statute, and preventsits application to lay-share fishermen. When, as here, a statute is clearon its face, legislative history "cannot serve as a baseline forstatutory construction." Lopez-Soto v. Hawayek, 175 F.3d 170, 176 (1stCir. 1999). As the United States Supreme Court has held, "the startingpoint for interpreting a statute is the language of the statute itself.Absent a clearly expressed legislative intention to the contrary, thatlanguage must ordinarily be regarded as conclusive." Consumer ProductSafety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980).However, because Defendants argue that the legislative history expressesan intended contrary result, this writer will examine it.

Prior to Congress' recodification of the various admiralty statutes inthe 1980s, the language now contained in § 11107 was located in§ 578, and its statutory wage penalty applied to merchant seamen, butnot fishermen working for lay-shares. See 46 U.S.C. § 578 (rep. Aug.26, 1983); 46 U.S.C. § 544 (rep. Aug. 26, 1983). When the statuteswere recodified and reorganized, Congress repealed the old statutes,including § 578. See id.

Defendants contend that Congress merely reorganized andPage 29recodified existing admiralty laws in the 1980s, and that any materialchange that may have taken place at this time in the statutes should beviewed by this Court as unintentional, and contrary to the intent ofCongress. As evidence of this legislative intent, Defendants refer thiswriter to certain sections of the legislative history explaining the needto reorganize and group together the admiralty laws that were then spreadthroughout the United States Code, and presenting a general intent ofCongress not to change the law, but merely to modernize it and recodifyit as a unit. See H.R. Rep. No. 338, 98th Cong. 1st Sess. 1983,available at 1983 WL 25324, p. 116-19.

However, this sentiment, as reported by Defendants, conveys only apiece of the Congressional intent behind the 1983 maritimerecodification. In later pages of the same House Committee Report fromthe Committee on Merchant Marine and Fisheries cited by Defendants, thiswriter finds the following:

The Committee wants to make it clear, however, that the bill as reported does in fact make a great many changes to the present law. . . . Thus, if a comparison of the language of this bill with the existing law shows that a substantive change has resulted, it should be understood that that change was intended by the Committee. The Committee intends and hopes that the interpretation of the maritime safety laws as codified and enacted by this bill will be based on the language of the bill itself. The bill, as reported, is based on that premise. There should, therefore, be little or no occasion to refer to the statutes being repealed in order to interpret the provisions of this bill.Page 30

The Committee also feels, as the courts have held, that the literal language of the statute should control the disposition of the cases. There is no mandate in logic or in case law for reliance on legislative history to reach a result contrary to the plain meaning of the statute, particularly where that plain meaning is in no way unreasonable.H.R. Rep. No. 338, 98th Cong. 1st Sess. 1983, available at 1983 WL25324, p. 120.

In light of these statements of legislative intent, it is clear thatDefendants' argument must fail. Defendants ask this court not to look atthe plain statutory language of § 11107 as written, but to divinedispositive legislative intent based on repealed statutes. This Courtdeclines to assume a legislative intention contrary to the plain languageof the statute, and will interpret the language of § 11107 as thelegislature codified it.

Finally, Defendants argue that applying § 11107 to lay-sharefishermen will create an absurd result, because it would allow a rookieseaman to potentially recover the same wages as a veteran seaman forunequal performance. However, Defendants overlook the fact that §11107 has been viewed both as a "penalty" placed on vessel owners forlack of compliance with admiralty laws and as a "statutory default tomarket wage" when a contract is contrary to law, and therefore invalid.Harper, 278 F.3d at 977. Defendants remain free to pay seaman differentwages based on their level of experience, however, such an agreement mustbe reduced to writing and signed by all appropriate parties beforeleaving port,Page 31consistent with § 10601. If Plaintiffs receive higher wages for theirwork then Defendants originally intended, then that is the penaltyDefendants have to pay for failing to comply with the law and utilize aterm-specific, written contract. However, this Court agrees with theNinth Circuit that § 11107's default wage "must be computed withrespect to the seaman's actual rate," taking into account his positionand ranking on the ship, and not impose "the highest possible rate on theship." See id. (holding that § 11107 did not afford crew with astatutory right to captain's wages).

Thus, in light of the foregoing, the Court concludes that § 11107applies to lay-share fishermen, and may be utilized by Plaintiffs as astatutory default wage in place of their void contracts with Defendants.Therefore, plaintiffs' motion for summary judgment on the application of§ 10601 and § 11107 to lay-share fishermen is granted. The Courtnow turns to Defendants' motion for summary judgment on its defenses oflaches and waiver.

V. Defenses

Defendants also cross-move for summary judgment in their favor, raisingthe defenses of waiver and laches. These will each be discussed in turn.

A. WaiverPage 32

Defendants argue that by accepting payment for their services at eachtrip's conclusion, Plaintiffs have waived the right to later contest theamount they were paid. Waiver is the "intentional or voluntaryrelinquishment of a known right[.]" Black's Law Dictionary 1580 (6th ed.1990); Irons v. Federal Bureau of Investigation, 880 F.2d 1446, 1452 (1stCir. 1989); Regional Properties, Inc. v. Financial & Real EstateConsulting Co., 752 F.2d 178, 183 (5th Cir. 1985). A person cannot besaid to waive a right unless he or she does it knowingly, that is, withknowledge of the facts. See id. Thus, to successfully attain summaryjudgment on this issue, Defendants must present undisputed factsestablishing that Plaintiffs knew that they were entitled to recoveradditional funds at the end of each trip, but, despite this knowledge,accepted the Defendants' checks as payment. Whether Plaintiffs knew thatthey were entitled to additional funds at the time they acceptedDefendants' checks remains an unresolved issue of fact. Plaintiffs claimthat they were not aware that they were each paid different lay-sharesfor the same work, or that the various agreements Defendants executedwith Plaintiffs were in violation of § 10601, until sometime in theyear 2000. Defendants, however, claim that Plaintiffs were always awarethat they were compensated on a lay-share system, and charge them withknowledge of the appropriate statutory provisions. What Plaintiffs knewand when they knew it remainPage 33genuine issues of material fact requiring a credibility determinationfrom the trier of fact, and, as a result, cannot be resolved on summaryjudgment. Therefore, Defendant's motion for summary judgment on thisground must be denied. B. Laches

In addition, Defendants argue that the doctrine of laches barsPlaintiffs' claim for relief. "[L]aches is an equitable defense barring aclaim for relief, prior to the running of the limitations period, `wherea party's delay in bringing suit was (1) unreasonable, and (2) resultedin prejudice to the opposing party.'" Pascoag Reservoir & Dam, LLCv. Rhode Island, 217 F. Supp.2d 206, 228-29 (D.R.I. 2002) (quoting K-MartCorp. v. Oriental Plaza, Inc., 875 F.2d 907, 911 (1st Cir. 1989)). Inadmiralty cases, when Congress has provided no specific statute oflimitations governing the timeliness of a claim, "maritime law and theequitable doctrine of laches govern the time to sue." TAG/ICIB Servicesv. Pan American Grain Co., Inc., 215 F.3d 172, 175 (1st Cir. 2000). Asthe First Circuit has observed, the application of laches is within the"`sound discretion' of the district court." Puerto Rican-American Ins.Co. v. Benjamin Shipping Co., 829 F.2d 281, 283 (1st Cir. 1987).

When conducting a laches analysis in an admiralty case, the Court mustdetermine the most analogous statutory limitations period by looking toother federal statutes or, where applicable,Page 34state law. Guerrido v. Alcoa Steamship Co., Inc., 234 F.2d 349, 358 (1stCir. 1956). This analogous statute is not dispositive of the claim,rather, it determines which party bears the burden of proof on theissue. Puerto Rican-American, 829 F.2d at 283. If a plaintiff files acomplaint within the analogous statutory period, then the defendantcarries the burden of proving that plaintiff's delay in filing suit wasunreasonable and that defendant suffered prejudice due to this delay.Id. However, if the plaintiff files after the analogous statutory periodhas passed, then the burden shifts to the plaintiff, and a presumption oflaches is created in favor of the defendant. Id.

Here, Defendants have suggested that the six month statute oflimitations found in 46 U.S.C. § 10602 is the most analogous statuteof limitations. This statute governs the time to sue for fishermenbringing claims for wages or shares based on written contracts meetingthe requirements for written fishing agreements outlined by Congress in§ 10601. However, the Ninth Circuit has held this statute oflimitations inapplicable to actions brought by fishermen alleging thattheir fishing agreements violate § 10601, and thus, are void ascontrary to the laws of the United States. Seattle-First Nat. Bank, 98F.3d at 1198 ("Congress would not have established a [six month] statuteof limitations for breaches of agreements which it has deemed `void.'").This writer agrees with the Ninth Circuit that it is unlikely thatPage 35Congress would have intended a six month statute of limitations forvoid contracts, and, as a result, declines to adopt six months as themost analogous statute of limitations.

Plaintiffs suggest that this Court look to Rhode Island state law forthe most analogous statute of limitations, and argue that the Courtshould assign the burden of proof for laches based on the ten yearstatute of limitations found in R.I. Gen. Laws § 9-1-13(a), the statestatute of limitations for all civil actions arising under state law,excluding torts, see R.I. Gen. Laws § 9-1-14, and other causes ofaction with specific individual limitations periods, such as professionalmalpractice. See R.I. Gen. Laws § 9-1-14.1. Recently, the RhodeIsland Supreme Court held § 9-1-13(a)'s "catchall ten-year statute oflimitations" applicable to claims for unpaid statutory wages, reasoningthat these claims "do not fall within any of the other specific statutoryprovisions providing for shorter periods of limitation" within RhodeIsland law. Pellegrino v. Rhode Island Ethics Commission, 788 A.2d 1119,1127 (R.I. 2002) (per curiam). Because Plaintiffs' claims do not arisefrom personal injuries, but, rather, are in the nature of a statutorywage claim, this Court agrees with Plaintiffs that Rhode Island's tenyear statute of limitations, § 9-1-13(a), is the most analogousstatute of limitations for determining the burden of proof in this lachesanalysis. As a result, Plaintiffs' complaint, filed on AugustPage 3631, 2001, is within the ten year statutory period, and Defendantsbear the burden of showing that Plaintiffs' claim is barred by laches.

With the burden of proof established, this writer turns to the lachesanalysis. For Plaintiffs' claim to be barred by laches, Defendants mustshow that Plaintiffs delayed unreasonably in bringing suit, and that thisdelay prejudiced Defendants. However, as was true for Defendants' defenseof waiver, genuine issues of material fact remain as to when Plaintiffsbecame aware that Defendants contracted with them in violation of §10601. What Plaintiffs knew, when they knew it, and, consequently,whether there was a delay in bringing suit, all remain disputed issues offact between the parties.

Defendants also bear the burden of showing that Plaintiffs' delay inbringing suit caused them prejudice. In their motion for summaryjudgment, Defendants argue that they are prejudiced by Plaintiffsbringing suit years after their respective trips on the Relentless andPersistence because Defendants immediately divided the crew's "share" ofthe proceeds from each trip as soon as the trip was over, and, thus,Defendants never retained any portion of the crew's share to redistributeamongst disgruntled fishermen who challenge their wages after the fact.However, Defendants cannot establish prejudice resulting from Plaintiffs'delay in bringing suit by arguing that they do not have the moneyPage 37to pay Plaintiffs' claim. To successfully utilize the defense of laches,Defendants must show not only unreasonable delay, but that the delayprejudiced their ability to defend the suit. See Gardner v. PanamaRailroad Co., 342 U.S. 29, 31 (1951); Cities Service Oil Company v.Puerto Rico Lighterage Co., 305 F.2d 170, 171 (1st Cir. 1962); Vega v.The Malula, 291 F.2d 415, 418 (5th Cir. 1961). As a result, the issue oflaches is not appropriate for summary judgment, and Defendants' motion onthis ground must also be denied.


For the aforementioned reasons, Plaintiffs' motion for summary judgmentis considered as a motion for partial summary judgment, pursuant to Fed.R. Civ. P. 56(d), and is granted as to the application of42 U.S.C. § 10601 and 11107. Defendant's cross-motion for summaryjudgment is denied on all the grounds asserted. Genuine issues ofmaterial fact remain as to the defenses of waiver and laches. Defendantswill bear the burden of proof on those issues at trial, and Plaintiffswill have to prove what monetary relief they are entitled to ifDefendants falter on these defenses.

It is so ordered.

1. Richard Goodwin, the President and principal share holder of bothHuntress, Inc., and Relentless, Inc., is also the primary owner ofSeaFreeze, the company who typically purchased the fish caught by thePersistence and the Relentless.

2. The agreements do not describe Goodwin's position of authoritywithin Huntress, Inc., and Relentless, Inc., the corporate owners of thevessel. Rather, it merely describes Goodwin himself as the owner of thevessel in question.

3. Although Plaintiffs' complaint improperly alleges jurisdictionunder 42 U.S.C. § 1331, a repealed provision in the United StatesCode dealing with Public Health and Welfare, Plaintiffs have also allegedthat this Court has subject matter jurisdiction by virtue of this casearising in admiralty. As a result, the Court considers Plaintiffs'citation error harmless.

4. Here, in addition to Plaintiffs' and Defendants' cross-motions forsummary judgment as to the application of 46 U.S.C. § 10601 and 11107to lay-share fishermen, and the viability of Defendants' affirmativedefenses, Plaintiffs have moved for summary judgment on the amount oftheir damages. In furtherance thereof, Plaintiffs have supplied the Courtwith numerous spreadsheets and supporting affidavits, which Defendantscontest. Because these damage calculations hinge on witness testimony andcredibility determinations, this matter is not appropriate for summaryjudgment. If Defendants are ultimately held liable to Plaintiffs, a trialon damages will be necessary. As a result, this instant motion is moreproperly considered as a motion for partial summary judgment underFed.R.Civ.P. 56(d).

5. Section 10601 was amended in 2002 by Pub. L. 107-295, § 441(a)and (b)(1)-(3). These amendments delete the language formerly insubsection (b) requiring written fishing agreements to be signed by theowner of the vessel, and replace it with language requiring "the owner,charterer, or managing operator, or a representative thereof, includingthe master or individual in charge" of the fishing vessel to make awritten fishing agreement with each seamen employed on a vessel prior toembarkation. At the time that Plaintiffs sailed with Defendants,however, this amendment was not in place, and thus Defendants werestatutorily required by § 10601 to have their written fishingagreements signed by a authorized representative of the vessel'scorporate owner. See Flores v. American Seafoods Co., 335 F.3d 904,915-16 (9th Cir. 2003) (holding that § 10601(b)'s prior languagerequiring the owner's signature was not violated when a designatedrepresentative signed in his or her stead).

6. This writer is aware that the Preamble to Part G, drafted in 1983,stated, "The provisions of this part generally do not apply to fishingvessels, whaling vessels, or yachts." U.S. Code, Title 46, Part G,Historical and Revision Notes (Aug. 26, 1983). Defendants argue that theCourt should infer from this sentence that Congress intended to generallyexclude fishing vessels from all the statutes within Part G that do notrefer to them specifically, including § 11107. However, five yearsafter this preamble was published, Congress broadened the scope of Part Gby passing the Commercial Fishing Industry Vessel Safety Act of 1988,which enacted §§ 10601 and 10602. By inserting these fishing agreementprovisions in Part G, and by using the term "seaman" to describe alay-share fisherman in § 10601 and § 10602, Congress clearlybrought fishermen within the scope of that term as it is used throughoutPart G, including § 11107, and afforded them all resultant rights andprivileges, unless a specific statute excludes them by its terms."Congress is presumed to be knowledgeable about existing law pertinent toany new legislation it enacts." Native Village of Venetie I.R.A. Councilv. State of Alaska, 944 F.2d 548, 554 (9th Cir. 1991).

7. This Court also agrees with the Ninth Circuit that the statutorywage contemplated by § 11107 is the highest rate of wages for asimilarly ranked seaman departing the same port at the time of thewrongful engagement. See TCW Special Credits, 129 F.3d at 1333; Harper,278 F.3d at 977.Page 1

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