Litigating in the Bilge

By John Merriam

Only a few days after 9 lives were lost when the Aleutian Enterprise sank, Arctic Alaska was still playing fast and loose with Coast Guard safety regulations aboard another boat in the Bering Sea.

Working at the time in Florida, the plaintiff was contacted by Arctic Alaska to fill the position of chief mate aboard a crabber/processor, the Northern Enterprise. The plaintiff was offered free plane fare to Seattle and a generous share of the catch to take the job. The plaintiff signed a contract of employment, in Seattle, en route to join the vessel in St. Paul, Alaska. The exact share of the catch he was to receive as wages was left unspecified in the contract, the plaintiff receiving only verbal promises of a rather high rate of compensation since the defendant was ‘desperate for a mate on the vessel’.

When the plaintiff reported for duty aboard the Northern Enterprise, he was not allowed to perform navigational duties on the bridge, but instead was put to work merely as a processor. The plaintiff was a “paper mate”, being hired so that his Coast Guard license could hang in a passageway on the bridge deck of the vessel, rather than the plaintiff himself, being on the bridge being engaged in navigation.

A former member of the Coast Guard himself, and feeling somewhat disturbed by the recent sinking of the Aleutian Enterprise, the plaintiff took the Coast Guard manning requirements — contained in the CFRs — seriously. The plaintiff quit after one crabbing trip of two weeks.

When the plaintiff finally got his settlement sheet, showing his compensation, he realized that the defendant had retaliated against him for leaving the vessel, by setting his rate of Compensation at less than 1% of the catch, not even as much as a processor should make, to say nothing of a licensed deck officer. After subtracting the plaintiff’s advances on his wages, and deducting all air fares — including the one that the defendant had promised to pay — the defendant claimed that the plaintiff owed Arctic Alaska almost $3,000.00!

Once the case was filed, the central issue became the percentage of the catch that the plaintiff, as chief mate, should have earned had he not made waves. After receiving evasive and non-responsive discovery on this score, counsel for the plaintiff noted a CR 30(b)(6) deposition that was taken at defendant’s corporate offices on Fisherman’s Wharf.

Lo and behold: right in the plaintiff’s personnel file were notations that the plaintiff’s share of the catch had been initially calculated at 2.25% — information that was at the crux of plaintiff’s discovery requests — rather than the 0.93% the plaintiff had actually been paid. The plaintiff could only conclude that his wages had been slashed as a consequence of not going along with the fact that Arctic Alaska was navigating the Northern Enterprise with personnel not licensed by the Coast Guard.

Having not received the wage information in answer to discovery requests, counsel for the plaintiff drafted an arbitration brief requesting punitive damages under the maritime law after discovering this information at the 30 (b)(6) deposition. Defense counsel claimed that the document containing the sought after information, missing from an identical document provided in discovery –had originally been supplied to defense counsel from a different department of Arctic Alaska.

The arbitrator, Steven Yost, awarded plaintiff only the difference between the two rates of pay for the two week trip of the Northern Enterprise that the plaintiff was actually aboard the vessel, failing to make an award for breach of contract for the subsequent trip: the amount awarded the plaintiff was less than $3,000.00, plus the price of air fare between Florida and Seattle. Although the case was brought under the general maritime law, the arbitrator did find that state wage statutes, or one of them, was applicable. The arbitrator did not double the plaintiff’s wages pursuant to RCW 49.52.050 and . 070, but allowed counsel for the plaintiff to make application for attorney fees in an amount up to $5,000.00 (the maximum requested) upon submission of his time affidavit.

Prior to the submission of a time affidavit, defense counsel informed counsel for the plaintiff, him that unless the plaintiff settled for an amount less than the award, the deposition of plaintiff’s counsel would be noted and his original time records subpoenaed. Counsel for the plaintiff refused to compromise. Counsel for the plaintiff was then served with a subpoena at his office for his original time records to be produced at the deposition noted by defense counsel.

Counsel for the plaintiff informed counsel for the defendant that he would not honor the subpoena he had been served with since there was no authority to issue such a subpoena under the Mandatory Arbitration Rules (MAR), but that he would gladly produce his original time records in exchange for the time and billing records of defense Counsel. Hours spent and fees billed by opposing counsel is relevant to determining the reasonableness of attorney fee requests. Larson, Federal Court Awards of Attorney Fees, p. 273, and cases cited therein. Defense counsel refused.

Realizing that he did not have authority to issue a subpoena under MAR, defense counsel then faxed a request to the arbitrator for permission to issue such a subpoena. The arbitrator denied that request.

The arbitrator awarded the plaintiff $2,366. 50 plus $4,500.00 in attorney fees. Plaintiff was represented by John Merriam of Geisness, Merriam and Weigand. Defendant was represented by Joe Stacey and Brien Jacobsen, of LeGros, Buchanan and Paul. The case is Louis Boone v. Arctic Alaska, King County Superior Court Cause No. 92-2-24O42-4.

John Merriam is a sole practitioner in Seattle representing seamen on wage and injury claims.