Is the Wardship Theory Ill?

by John W. Merriam

In 1823, Justice Story stated that seamen (including fishermen) were entitled to be treated as the wards of admiralty. Harden v. Gordon, 11 F. Cas. 480, No. 6047 (C.C. Maine). This class of workers also has been described as “wards of the nation.’ The Grace Dollar, 160 F. 906, 907 (9th Cir. 1908). Justice Cordoza viewed “the ordinary seaman (as) a member of a favored class.’ Warner v. Goltra, 293 U.S. 155, 162 (1934).

This article suggests that some fishing and shipping companies, along with their insurers and lawyers, have spent so much money and energy to erode the rights of seamen that the wardship theory is withering under the onslaught of superior resources. Some examples:

1. Non-union seamen are paid maintenance at a rate of $20-$25 per day, regardless of their actual living expenses. This rate, usually set in the employment contract, is not legally binding but rarely is challenged.

2. Most union merchant seamen receive a rate of maintenance that has been eight dol- lars per day since the Korean War. The Ninth Circuit and others have enforced that amount, but the Third Circuit struck it as not binding. Cf., Gardiner v. Sea-Land, 786 F.2d 943 (9th Cir. 1986) and Barnes v. Andover Co., 900 F.2d 630 (3rd Cir. 1990). Until the U.S. Supreme Court resolves the split between federal circuits, the state courts in Washington and elsewhere are free to follow whichever federal circuit they choose. Personal Restraint of Grisby, 121 Wn.2d 419 (1993). This rate of maintenance is being challenged in the state courts of Washington, unsuccessfully so far.

3. Fishermen and processors hired for a season are required to sign contracts dividing their contemplated periods of employment into artificial increments of 30 days or less at a time. The contractual period of employment typically is only invoked in cases of illness or injury on the job, and only to lessen the employers’ liability for unearned wages. These contracts rarely are challenged.

4. Some seamen are listed as ineligible for re-hire when having the temerity to become ill or injured in the service of the ship. Such a practice violates policies surrounding blacklisting and handicap discrimination. The practice needs to be challenged more vigorously.

5. The fishing industry in this area typically increases the lay (crewshare) above the percentage set forth in the written contracts of employment for those employees who perform well. Should some of those employees become ill or injured on the job, the lay frequently reverts to the lower, written percentage, for purposes of unearned wages. Despite a custom for routine raises in pay once aboard, such diminutions in compensation for incapacitated workers rarely are challenged.

6. Maintenance and cure is routinely cut off before maximum cure as soon as the ill or injured seaman is given work clearance or consults a lawyer. This is a violation of public policy and should be challenged by motions for partial summary judgment more frequently.

7. Some fishing companies routinely shortchange their employees — especially processors on their share of the catch in small amounts, confident that most of those employees will view the shortage as yet another hazard of the sea, and those that don’t will be hard pressed to find lawyers for the incremental amounts involved. We must be willing to pursue these claims regardless of size.

8. Processors working on factory trawlers are classified as ‘fishermen’ for purposes of 29 USC sec. 213(a)(5), making them ineligible for minimum and overtime wages under the Fair Labor Standards Act. That leaves them vulnerable to fishing company claims that they are owed zero and are sometimes presented with a bill for plane fair to Alaska — when the fishing company says that not enough fish were caught to cover operating expenses. Those processors, working below decks — for 16 or more hours per day, 7 days per week in conditions similar to factories during the Industrial Revolution, have no inkling of the profits generated from the catch, nor where the fishing is performed. They are hardly the type of fishermen engaging in “first processing” of fish envisioned when the Fair Labor Standards Act was enacted in 1938. Their entitlement to mini- mum wage in these times of shrinking fish stocks is being pursued, but as yet unsuccessfully.

9. Numerous seamen are stricken ill by noxious fumes aboard ship. Because this is so prevalent and has been going on for so long, it is accepted as an occupational hazard. It need not be accepted. A workplace at sea that is not safe constitutes an unseaworthy condition. Too few suits have been levied against air that is not safe to breathe.

10. Routinely omitted from unearned wage compensation are production bonuses, fringe benefits, normal and routine overtime, and other forms of deferred or additional compensation for employees. The amounts due as unearned wages are all monies the seaman would have earned during the contemplated period of employment, but for the illness or injury. Norris, The Law of Seamen sec. 26:7 (4th ed. 1985). Insurance company calculations of unearned wages are too frequently taken at face value. More challenges are needed.

11. Filing declaratory actions in federal court, pursuant to 28 USC sec. 2201 et seq., is a tactic that is presently in vogue amongst lawyers for fishing, shipping and insurance companies. Declaratory actions are typically a means to seize the initiative when it is suspected that an ill or injured seaman may pursue his or her remedies under the maritime law, especially if that pursuit is expected in state court. Most of these declaratory reactions are improvidently brought; it is the employee that should choose the forum and the time for litigation. Some of these would- be plaintiff employers have the gall to claim that they can escape the federal court filing fee (recently raised from $120 to $150) because they are filing a “seaman’s action” pursuant to 28 USC Sec. 1916. Dismissal of these actions rarely is sought.

Assaults on the wardship theory are escalating. A relatively recent local federal court decision suggested that the doctrine was antiquated and should be diluted. Fuller v. Golden Age Fisheries, 1992 AMC 1696, 1701 (W.D. Wash.1992). Fortunately, the Ninth Circuit did not parrot that rationale in affirming the trial court. Id., 14 F.3d 1405, cert. denied, _U.S.___.

But seamen still get cheated on their wages, routinely by some fishing companies. Seamen are not entitled to worker’s compensation. Fatigue and injury have replaced the floggings and leg irons of yore, at least on non-unionized vessels.

Our clients never will be able to match the financial resources available to their employers. The tide flowing in is swamping the historical rights of seamen. It is our obligation to stem that tide, regardless of the remuneration involved. Vigorous pursuit of all entitlements is required.

The wardship theory is still relevant and still needed. For maritime plaintiff practitioners, this is a call to arms.

John Merriam is a solo practitioner in the Smith Tower, restricting his practice to maritime injury and wage claims.