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affirming dismissal of wrongful discharge cause of action where defendant offered "persuasive defenses" that were an overriding justification for the dismissal
Summary of this case from Brown v. Tethys Bioscience, Inc.Opinion
No. 54445-4-I
Filed: May 23, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 03-2-26160-2. Judgment or order under review. Date filed: 06/16/2004. Judge signing: Hon. J. Wesley Saint Clair.
Counsel for Appellant(s), Bradley H. Bagshaw, Helsell Fetterman LLP, 1001 4th Ave Ste 4200, Seattle, WA 98154.
Counsel for Respondent(s), David Carl Bratz, Attorney at Law, 701 5th Ave Ste 2500, Seattle, WA 98104-7022.
William Arthur Keller, Attorney at Law, 701 5th Ave Ste 2500, Seattle, WA 98104-7022.
Twenty-three crewmembers of the Ocean Phoenix sued their former employer, Premier Pacific Seafoods, Inc., after they were discharged for refusing to work 16-hour shifts instead of the customary 16 hour shifts. The crewmembers alleged (1) breach of contract, (2) wrongful discharge, (3) double wages and attorney fees, and (4) violation of 46 U.S.C. sec. 10601, which requires that certain terms be in seamen's contracts. Premier Pacific filed a CR 12(b)(6) motion to dismiss the first three claims and a summary judgment motion on the fourth claim. The company argued that maritime law and policy and contract law preempted the crewmembers' claims. The trial court granted the motions, and the crewmembers appealed.
Because the contract was completely integrated and did not include any terms governing work hours, we cannot grant relief on the crewmembers' claim that the contract was ambiguous on that subject. And even if we assume, as we must under CR 12(b)(6), that expanding the work day from 16 to 16-hours violated the custom in the industry or some other employment term, the requirement that the seamen work an extra one-half hour each day is not egregious enough to warrant expanding the narrow wrongful discharge public policy exception to the employment at-will doctrine to allow the crewmembers to pursue their wrongful discharge claim. But Premier Pacific violated 46 U.S.C. sec. 10601 because it did not define the production-based compensation terms to which the crew was subject before the ship left Seattle. We therefore affirm in part and reverse in part, and remand for further proceedings consistent with this opinion.
FACTS
In early January 2003, the 23 plaintiff crewmembers signed contracts in Seattle to work as fish processors for Premier Pacific Seafoods, Inc. (Premier Pacific), aboard the Ocean Phoenix, a factory processing ship headed to the Bering Sea off the coast of Alaska. The contracts covered the pollock fishing 'A' season that typically runs from January into early spring. Many of the crewmembers had previously worked for Premier Pacific. The Ocean Phoenix departed Seattle with approximately 230 employees aboard.
Fish processing requires physically demanding labor and long work hours. The contract included a 'Certification of Physical Condition' clause that stated in part that the '[e]mployee understands that working conditions aboard the ship are difficult, strenuous and sometimes hazardous and that working hours are often long. Employee has considered these factors before making a decision to accept this employment.' The contract did not specify work hours, but the experienced processors had worked 16 hour days, seven days a week during previous 'A' seasons with Premier Pacific. At the beginning of the 2003 'A' season, after the Ocean Phoenix had left Seattle for the Bering Sea, Premier Pacific's on-board factory management told the processors that they would be working 16-hour days that season.
After working several 16-hour days, some of the processors protested the longer working hours. On February 2, 2003, management met with approximately 30 processors, including most of the plaintiff crewmembers. The parties dispute what happened at the meeting, but they agree that the factory manager, Pat Hermens, did not want to discuss work hours at that time and told the processors to go back to work. The processors refused. The next day Premier Pacific diverted the Ocean Phoenix to Dutch Harbor, Alaska, and ordered the protesting processors, including the plaintiff crewmembers, off the ship. The crewmembers immediately complained about unsafe working conditions to the Coast Guard, which investigated the crewmembers' claims but found no safety violations.
The parties dispute the events of February 2, including those which precipitated the meeting.
The parties dispute whether Premier Pacific terminated the crewmembers' employment or the crewmembers quit.
Coast Guard's investigative report summary dated February 6, 2003.
The crewmembers sued Premier Pacific for (1) wrongful discharge based on the their organizing to protest working conditions, (2) wrongful discharge based on their refusing to work because of safety concerns, (3) violation of 46 U.S.C. sec. 10601 because the employment contract failed to define the terms of compensation, (4) double wages, damages and attorney fees under Washington state law, (5) an accounting of the value of their shares under 46 U.S.C. sec. 10602, and (6) breach of contract based on the 16-hour work day. The crewmembers voluntarily dismissed the organizing and accounting claims. After the trial court granted Premier Pacific's CR 12(b)(6) and summary judgment motions, the crewmembers filed this appeal.
Premier Pacific states that the trial court dismissed the claims based on federal preemption, but the trial court's orders do not explain the court's reasoning.
DISCUSSION
A trial court's ruling on a CR 12(b)(6) motion is a question of law that we review de novo. Dismissal under CR 12(b)(6) is proper only if it appears beyond a reasonable doubt that no facts exist that would justify recovery. We presume the plaintiffs' allegations are true, and we may consider hypothetical facts supporting the plaintiffs' claims even if they are not part of the record. CR 12(b)(6) motions should be granted sparingly and only in the unusual case where the plaintiff "includes allegations that show on the face of the complaint that there is some insuperable bar to relief."
Cutler v. Phillips Petroleum Co., 124 Wn.2d 749, 755, 881 P.2d 216 (1994) (citing Hoffer v. State, 110 Wn.2d 415, 420, 755 P.2d 781 (1988), aff'd on rehearing, 113 Wn.2d 148, 776 P.2d 963 (1989)), cert. denied, 515 U.S. 1169 (1995).
Id.
Id.
Id. (quoting Hoffer, 110 Wn.2d at 420).
I. Breach of Contract
An integrated agreement is a writing the parties intend to be the final expression of the terms of their agreement. The crewmembers' contracts contained this integration clause:
Emrich v. Connell, 105 Wn.2d 551, 556, 716 P.2d 863 (1986); Restatement (Second) of Contracts sec. 209(1) (1981).
ENTIRE AGREEMENT. This is the entire and only agreement between the employee and owner. There are no other express or implied agreements. Any prior written or oral statements are superseded. This agreement shall not be modified, amended, or otherwise changed except in writing, signed by both employee and an authorized representative of owner.
Premier Pacific argues that the integration clause prevents the crewmembers from bringing a breach of contract claim based on a term that was not included in the contract. The crewmembers argue that the contract is ambiguous about work hours, and the integration clause does not bar the court from looking outside the contract to interpret an ambiguous term. They contend that the parties intended that the crewmembers' shifts would not exceed 16 hours a day, and Premier Pacific breached this agreement by requiring 16-hour work days.
Specifically, the crewmembers assert that the parties' course of dealing and Premier Pacific's employee information booklet show that the parties intended that the workday be limited to 16 hours.
'A court's primary task in interpreting a written contract is to determine the intent of the parties.' An integration clause is strong evidence that the parties intended that the contract be the complete and final expression of their agreement. When the 'parties have agreed that the written instrument is the exclusive and final embodiment of their contract, antecedent understandings and parol evidence are not admissible to alter its terms.' But extrinsic evidence is admissible to prove omitted but not inconsistent terms, or to determine the parties' intent, if the contract was only partially integrated or if a contractual clause was ambiguous. A completely integrated agreement is one which the parties adopt as the 'complete and exclusive statement of the terms of the agreement.' A partially integrated agreement is a writing that 'is a final expression of those terms which it contains but not a complete expression of all terms agreed upon[.]' On appeal, the crewmembers do not dispute that the employment agreement is completely integrated. Instead, they contend that the following contractual clause is ambiguous about working hours: 'DUTIES. Employee shall perform his/her duties as requested by the owner, whether written or oral, in connection with the ship's operating and processing activities.' But the clause the crewmembers rely on governs the employees' duties, not their working hours. The contract does not contain any working-hour terms. The crewmembers cannot use extrinsic evidence to clarify the contract's ambiguous working-hour terms because there are no ambiguous terms to clarify. We affirm the trial court's order dismissing the crewmembers' breach of contract claim.
U.S. Life Credit Life Ins. Co. v. Williams, 129 Wn.2d 565, 569, 919 P.2d 594 (1996) (citing Eurick v. Pemco Ins. Co., 108 Wn.2d 338, 340, 738 P.2d 251 (1987)).
Denali Seafoods, Inc. v. W. Pioneer, Inc., 492 F. Supp. 580, 582 (W.D. Wash. 1980) (citing Golden Gate Acceptance Corp. v. Gen. Motors Corp., 597 F.2d 676 (9th Cir. 1979)).
Golden Gate, 597 F.2d at 680.
Berg v. Hudesman, 115 Wn.2d 657, 662, 801 P.2d 222 (1990).
Restatement (Second) of Contracts sec. 210(1) (1981).
Berg, 115 Wn.2d at 670.
The crewmembers argued in the trial court that the parties had a partially integrated agreement that did not cover working hours and therefore extrinsic evidence was admissible to prove an omitted but not inconsistent working-hour term. They abandon this argument on appeal, instead relying on the 'ambiguous term' argument. They could not have prevailed on the 'partially integrated' argument because the contract's integration clause describes the agreement as the 'entire and only agreement' between the parties, strongly indicating that it was intended as a complete expression of all terms between the parties, i.e., a completely integrated agreement.
The remainder of the 'duties' clause reads as follows: Employee will perform such duties at the direction of the employer, Master, Manager, Supervisor or other person designated by the owner or Master. Duties shall include but are not limited to preparing the vessel for its processing operation, including cargo offloading and vessel maintenance through the term of this agreement. Failure to perform any of the duties as assigned may result in disciplinary action up to and including termination.
The 'Certification of Physical Condition' clause contains the contract's only reference to working hours: 'Employee understands that working conditions aboard the ship are difficult, strenuous and sometimes hazardous and that working hours are often long.' (Emphasis added.) Premier Pacific states that working hours are purposefully omitted from the crew contracts because 'production on a fishing vessel varies and therefore so do working hours.'
II. Wrongful Discharge A. Federal Claim
The crewmembers argue that they made a valid federal wrongful discharge claim because their discharge violated public policy. They contend that the public policy concern, guarding seamen's health and safety, is strong enough to allow a wrongful discharge cause of action when crewmembers are discharged for refusing to work an unsafe schedule. Pacific Seafoods argues that complaints about working hours do not fall within the public policy exception to the maritime employment-at-will doctrine. It contends that the vessel and crew were not in danger. It also relies on federal policies requiring seamen's obedience at sea and disfavoring judicial regulation of seamen's working hours.
Although an at-will employee may generally be discharged for any reason, '[i]n some circumstances, . . . a court sitting in admiralty will recognize a wrongful termination cause of action when the termination violates an important public policy.' Federal maritime law first recognized a wrongful discharge tort in Smith v. Atlas Off-Shore Boat Services, where the Fifth Circuit allowed a seaman to assert a wrongful discharge claim after he was discharged in retaliation for filing a personal injury action under the Jones Act. The court stated that the 'employer's discharge of the at-will seaman-employee, while it is in essence a lawful act, should not be used as a means of effectuating a 'purpose ulterior to that for which the right was designed.'' The recognition of a cause of action in admiralty providing the seaman with relief from a discharge caused by his filing of a claim against the employer is particularly appropriate in light of the admiralty court's protective attitude towards the seaman. The judiciary's leading role in fashioning controlling rules of maritime law and in reshaping old doctrine to meet changing conditions makes the admiralty court peculiarly sensitive to the inequities inherent in the traditional rule. . . .
Seymore v. Lake Tahoe Cruises, Inc., 888 F. Supp. 1029, 1034 (E.D. Cal. 1995) (citing Smith v. Atlas Off-Shore Boat Serv., Inc., 653 F.2d 1057, 1060 (5th Cir. 1981)).
Id.
653 F.2d 1057 (5th Cir. 1981). The court held that 'a discharge in retaliation for the seaman's exercise of his legal right to file a personal injury action against the employer constitutes a maritime tort.' Id. at 1063. The Jones Act, 46 U.S.C. sec. 688, removed the legal bar to a seaman's suit for employer negligence, giving seamen the right to file personal injury claims. See Ann K. Wooster, Annotation, Validity, Construction, and Application of Jones Act, 46 App. U.S.C.A. sec. 688 Supreme Court Cases, 170 A.L.R. Fed. 587 (2001).
Smith, 653 F.2d at 1062 (quoting Blades, Employment At Will Vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 Colum. L. Rev. 1404, 1424 (1967)).
Id. at 1063 (footnotes omitted).
But in Feemster v. BJ-Titan Services Co., the Fifth Circuit refused to extend the public policy exception it recognized in Smith to allow a wrongful discharge claim where a tugboat captain refused to make an 18-hour trip that would violate a federal statute limiting a captain to 12 work hours in a 24-hour period. The statute at issue was directed at employers and provided only a small fine for violations. The court held that the 'general purpose of [the] legislation is to promote maritime safety, but not with employees acting as private enforcers and as private attorneys general; the agent of enforcement is the Coast Guard.' The federal district court in Seymore v. Lake Tahoe Cruises, Inc., later summarized Feemster's general rule: '[W]here the public policy implicated by an employee's termination is weak, stemming from a regulatory statute that could readily be enforced by the Coast Guard, a wrongful termination cause of action will be denied.'
873 F.2d 91 (5th Cir. 1989). The Fourth Circuit followed Feemster in a case with very similar facts. See Meaige v. Hartley Marine Corp., 925 F.2d 700 (4th Cir.) (tugboat captain refused to make a 30-hour trip), cert. denied, 501 U.S. 1217 (1991). In Meaige, the court held that 'the Coast Guard is the agent of enforcement of maritime safety and seaman protection laws; therefore, Meaige 'can complain of safety violations to the Coast Guard and enlist its aid to prevent violations.'' Meaige, 925 F.2d at 702 (quoting Feemster, 873 F.2d at 93-94).
Feemster, 873 F.2d at 93.
888 F. Supp. 1029, 1035 (E.D. Cal. 1995). The Seymore court cites Feemster and Meaige for examples of this situation.
In Seymore, the company discharged a cruise boat captain after he refused to pilot a boat he deemed unseaworthy because it had a leaking hull. The court held that there was a strong public interest in preventing a captain from taking out a leaking vessel and jeopardizing the safety of passengers and crew.
Indeed, the public policy at issue here is so strong that 46 U.S.C. sec. 10908 makes it a felony to send or attempt to send to sea a vessel in an unseaworthy state that is likely to endanger the life of an individual. Given the strong public policy at issue in the present case, it is appropriate to recognize a wrongful termination cause of action in favor of a captain terminated for refusing to pilot or order another to pilot a vessel that the captain reasonably believes is unseaworthy, posing an undue risk of death or serious injury to passengers or crew.
Id. at 1035 (footnote omitted). The court also cited 46 U.S.C. sec. 2302(a), which imposes a civil penalty on a person operating a vessel in a negligent manner, as evidence of the strong public policy at issue. Id.
In Borden v. Amoco Coastwise Trading Co., a tugboat captain was fired after he twice cited safety concerns in refusing to pilot a recently repaired tug carrying toxic chemicals into the path of a major storm. Although the court agreed with the defendant that Feemster provided the proper analysis, it held that Feemster must be read in light of Smith. '[T]he primary inquiry is whether public policy considerations in particular factual circumstances are sufficient to override the at-will doctrine. Simply stated, clearly important public policy concerns were not at issue in Feemster. Such concerns were at issue in Smith, and such concerns are at issue here.' The Borden court relied on the public interest in preventing a captain from piloting a vessel he reasonably believes is unseaworthy, especially when the vessel carried highly toxic chemicals and a full crew, to hold that the public policy concerns were sufficiently strong to overcome the at-will presumption.
985 F. Supp. 692 (S.D. Tex. 1997).
Id. at 697.
Id. at 698. The court's rationale closely followed that in Seymore: Indeed, the public policy at issue here is so strong that sec. 10908 makes it a felony to send to sea a vessel in an unseaworthy state when lives are at stake. Feemster itself recognized the public policy exception, but found it nonapplicable in that case. . . . The Court today recognizes a strong public policy in protecting the safety of not only seamen, but the public as well, and the sanctity of our coastlines. These considerations, coupled with the public policy implications surrounding sec. 10908, are sufficient to overcome the at-will presumption. Thus, the public policy exception is clearly applicable in this case. Id. (citation omitted).
Here, the question is whether the public policy considerations on which the plaintiffs rely are sufficient to override the at-will doctrine. Because the trial court dismissed this claim under CR 12(b)(6), we assume the truth of the crewmembers' allegation that '[t]he 16.5-hour work schedule imposed by defendants is injurious to the health and welfare of those doing the work. It exhausts workers and increases their risk of injury.' The crewmembers argue they should at least have a chance to present evidence that the 16-hour day impacted their safety to the extent that it implicated public policy in a way the 16 hour day did not. But under the analytical framework of Smith, Feemster, and their progeny, the courts must consider additional, competing public policy considerations embodied in the maritime law to determine whether dismissal was appropriate under the facts of this case.
Seamen have long been considered wards of the court, and a 'strong policy favoring the protection of seaman is deeply entrenched in our legal system.' It is ancient but still valid maritime law that maritime employers have a duty to look out for the health and safety of their seamen-employees. But maritime law does not allow seamen to defy orders and/or stop working, and a sailor's contract is unique, necessarily requiring him or her to surrender personal liberty to some extent during the life of the contract.
MacPhail v. Oceaneering Int'l, Inc., 170 F. Supp. 2d 718, 725 (S.D. Tex. 2001), vacated in part on other grounds by, 302 F.3d 274 (5th Cir. 2002), cert. denied, 537 U.S. 1110 (2003).
The Iroquois, 194 U.S. 240, 247, 24 S. Ct. 640, 48 L. Ed. 955 (1904). See Van Mill v. Bay Data, Inc., 819 So.2d 963, 964 (Fla.App. 4 Dist. 2002) (citing Iroquois for proposition that maritime employers have a duty to care for their seamen-employees); Deisler v. McCormack Aggregates, Co., 54 F.3d 1074, 1083 (3d Cir. 1995) (citing Iroquois).
See 46 U.S.C. sec. 11501 (providing penalties for refusing to follow a Captain's lawful orders while at sea); 18 U.S.C. sec. 2192 (providing penalties for encouraging disobedience or resisting the lawful orders of the master).
N.L.R.B. v. Sea-Land Serv., Inc., 837 F.2d 1387, 1397 (5th Cir. 1988).
[T]he relationship of master to seaman has been entirely different from that of employer to employee on land. The lives of passengers and crew, as well as the safety of ship and cargo, are entrusted to the master's care. Every one and every thing depend on him. He must command and the crew must obey. Authority cannot be divided. These are actualities which the law has always recognized. . . .
Southern S.S. Co. v. N.L.R.B., 316 U.S. 31, 38, 62 S. Ct. 886, 86 L. Ed. 1246 (1942).
But despite this general concern, neither Congress nor the Coast Guard regulates processors' work hours, although they do regulate the hours of certain other processing vessel employees. Seamen have a remedy under the Jones Act for injuries resulting from fatigue caused by an employer's negligence. And the U.S. Supreme Court recently cautioned the courts to be restrained in shaping maritime common law:
See 46 U.S.C. sec. 8104(k) (requiring that licensed individuals and deck crew on a fish processing vessel be divided into at least three watches); 46 CFR 15.710(e) (requiring three watches for licensed officers and deck crew on processing vessels over 5,000 gross tons, and two watches for vessels under 5,000 gross tons).
Smith v. Reinauer Oil Transp., Inc., 256 F.2d 646 (1st Cir.), cert. denied, 358 U.S. 889 (1958); Gajewski v. United States, 540 F. Supp. 381 (S.D.N.Y. 1982).
'While there is an established and continuing tradition of federal common lawmaking in admiralty, that law is to be developed, insofar as possible, to harmonize with the enactments of Congress in the field.' . . . Because of Congress's extensive involvement in legislating causes of action for maritime personal injuries, it will be the better course, in many cases that assert new claims beyond what those statutes have seen fit to allow, to leave further developments to Congress. . . .
Norfolk Shipbuilding Drydock Corp. v. Garris, 532 U.S. 811, 820, 121 S. Ct. 1927, 150 L. Ed. 2d 34 (2001) (citations omitted).
Premier Pacific asserts that because the crewmembers were not injured, they have no Jones Act claims. It also argues that the court should not substitute its judgment for that of Congress or the Coast Guard, which chose not to limit processors' work hours. We question Premier Pacific's contention that until fatigue results in actual injury, a processor has no legal recourse and must work whatever hours the employer requires regardless of safety risks. Considering seamen's protected status, it seems unlikely that a court would eliminate any legal recourse where working conditions pose an unreasonable risk to a seaman's welfare. But we need not decide that question today. In light of the unique relationship between maritime employers and employees and the restraint we must show in changing or expanding maritime law, we may permit wrongful discharge claims based on work-hour grievances only in the most egregious circumstances, that is, where 'clearly important public policy concerns' are at issue. A requirement that plaintiffs work an additional one-half hour each day does not raise public policy concerns that are sufficient to overcome the employment-at-will doctrine.
Borden, 985 F. Supp. at 697 (emphasis omitted).
The parties agree that a fish processor's work is difficult, potentially dangerous, and involves long hours the contract signed by the crewmembers states as much. The crewmembers are expected to work 16 hour days, seven days a week, and many of them had previously worked as processors for Premier Pacific. They understood the harsh conditions they faced when they agreed to do the work. Their wrongful discharge claim requires that they prove that the extra half hour in their daily work schedule created unreasonably dangerous working conditions such that public policy required that they be allowed to refuse to work without being discharged.
But unlike the plaintiff in Smith, the crewmembers were not fired for pursuing a statutory remedy. And unlike the employers' demands in Borden and Seymore, Premier Pacific's demands did not violate a statute, put the public's safety at risk, or force the crewmembers to work on an unseaworthy vessel. The crewmembers argue that, as in Borden and Seymore but unlike in Feemster, safety was genuinely at issue. Given that safety was already at issue when the crewmembers agreed to and worked 16 hour shifts, this argument is not persuasive.
The crewmembers' opening brief and their counsel at oral argument compared the injury rate from the summer 2002 season, involving 12 hour workdays, to the winter 2003 season at issue here to support their claim that the 16-hour workday created unreasonably dangerous working conditions. But the proper comparison would be between previous winter seasons, involving 16 hour workdays, and the 2003 winter season. The crewmembers had to prove that the 16-hour workday posed substantially greater risk than the 16 hour workday they anticipated when they agreed to work the winter 'A' season.
After they were dropped off in Dutch Harbor, the crewmembers complained to the appropriate authority, the Coast Guard. The Coast Guard investigated and concluded that it did not have jurisdiction because the incident appeared to be a labor issue rather than a safety issue. While the Coast Guard's conclusion is not dispositive, it provides further evidence that the 16-hour shift, even if it created a more dangerous situation than the 16 hour shift, did not create a 'most egregious circumstance' that permits the crewmembers to bring a wrongful discharge claim. Even taking the crewmembers' allegations as true, it is hard to imagine a scenario where an extra half hour, added to an otherwise legal, worker-accepted schedule, creates insufferable working conditions requiring a court to further expand the public policy exception to the employment at-will doctrine. We affirm the trial court's order dismissing the crewmembers' federal wrongful discharge claim.
B. State Claim
The crewmembers argue that they may also bring a wrongful discharge claim under Washington law because the state and federal interests protecting workers' health and safety are the same, so there is no threat to uniformity. They contend that courts have repeatedly given effect to state wrongful discharge laws in situations such as this. Premier Pacific argues that federal maritime law preempts Washington's wrongful discharge law. It asserts that federal law established unique rules in the maritime workplace, and the need for uniformity in the regulation of seamen's working hours preempts a state cause of action.
Washington law applies to maritime commerce unless it contravenes the essential purpose of an act of Congress, works material prejudice to the characteristic features of the general maritime law, or interferes with the proper harmony and uniformity of that law. 'Whether maritime harmony and uniformity will be disrupted depends on a balancing of the federal and state interests involved.' Employment in Washington is generally terminable at-will, but an employee has a wrongful discharge cause of action if the discharge 'violates a clear mandate of public policy.' To establish a claim for wrongful discharge in violation of public policy, a plaintiff must prove (1) the existence of a clear public policy (the clarity element), (2) that discouraging the conduct in which the plaintiff engaged would jeopardize the public policy (the jeopardy element), (3) that the public-policy-linked conduct caused the dismissal (the causation element), and (4) the defendant must not be able to offer an overriding justification for the dismissal (the absence of justification element).
Paul v. All Alaskan Seafoods, Inc., 106 Wn. App. 406, 411, 24 P.3d 447 (2001) (citing S. Pac. Co. v. Jensen, 244 U.S. 205, 216, 37 S. Ct. 524, 61 L. Ed. 1086 (1917)).
Id. at 418 (citing Ballard Shipping Co. v. Beach Shellfish, 32 F.3d 623, 628 (1st Cir. 1994); Stanton v. Bayliner Marine Corp., 123 Wn.2d 64, 84, 866 P.2d 15 (1993), cert. denied, 513 U.S. 819 (1994)).
Anica v. Wal-Mart Stores, Inc., 120 Wn. App. 481, 495, 84 P.3d 1231 (2004) (citing Selix v. Boeing Co., 82 Wn. App. 736, 740, 919 P.2d 620 (1996), review denied, 130 Wn.2d 1024 (1997)).
Id. (citing Selix, 82 Wn. App. at 740).
Id. (citing Gardner v. Loomis Armored Inc., 128 Wn.2d 931, 941, 913 P.2d 377 (1996)).
Washington's wrongful discharge exception is narrow and should be applied cautiously. Washington's wrongful discharge cause of action is essentially the same as the federal maritime common law wrongful discharge cause of action. Because the current circumstances do not allow the crewmembers' federal claim, they also do not permit them to bring a claim under state law. The central flaw is the same in either the federal or state context: the factual circumstances are not egregious enough to warrant an extension of the narrow wrongful discharge public policy exception. Additionally, Premier Pacific can offer as persuasive defenses the need for obedience at sea or the prohibition on work stoppages at sea as (1) overriding justifications for the dismissal, or (2) characteristic features of general maritime law that would be prejudiced by applying state law to allow a wrongful discharge claim where maritime law would not. We affirm the order dismissing the wrongful discharge cause of action under state law.
Id.
Because we affirm the trial court's order dismissing the crewmembers' breach of contract and wrongful discharge claims, we do not reach the question whether Washington's wage penalty and attorney fees statutes apply here.
III. 46 U.S.C. sec. 10601
46 U.S.C. sec. 10601 requires that, '[b]efore proceeding on a voyage, the owner . . . of a . . . fish processing vessel . . . shall make a fishing agreement in writing with each seaman employed on board' that includes 'the terms of any wage, share, or other compensation arrangement peculiar to the fishery in which the vessel will be engaged[.]' The crewmembers' employment contract states:
Calculation of compensation shall be based on production with a base rate guarantee. Hourly Employees are guaranteed a rate of $6.00 plus overtime for all hours worked in excess of forty (40) hours per week. Compensation based on production will be calculated and if greater than the employee's base wage at the end of a trip production wage will be paid. Settlement will be paid 10 working days following the last day of the final offload.
Production[-]based compensation pays employees a unit rate for each metric ton of frozen product produced during a trip. Production compensation depends in large part on factors not within the control of the employer such as weather and abundance and availability of fish. Unit rates will vary with the different types of products produced. Management, in its sole discretion, will set unit rates at the beginning of each trip.
The hourly rate was handwritten into the contract, and there is no dispute that it was $6.00 per hour.
The crewmembers argue that Premier Pacific violated 46 U.S.C. sec. 10601 because it did not define the unit rates for production-based compensation until after the crewmembers could have had a meaningful opportunity to consider them and make an informed decision about whether to accept the contract. Premier Pacific argues that the trial court properly granted its motion for summary judgment because under Flores v. American Seafoods Co., the contract's production-based compensation terms were sufficiently defined to comply with the statute.
335 F.3d 904, 907 (9th Cir. 2003).
We review summary judgments de novo, performing the same inquiry as the trial court. Summary judgment is proper only when there is no genuine issue about any material fact, and the moving party is entitled to a judgment as a matter of law. We consider all facts and reasonable inferences in the light most favorable to the nonmoving party. Questions of fact may be determined as a matter of law when reasonable minds can reach only one conclusion. 46 U.S.C. sec. 10601 protects the seafaring employee 'from the duress, coercion, or deception that might result if masters were permitted to ship them out to sea without first providing written articles.' The written contract ensures that seamen 'have a clear and enforceable written commitment defining the consideration for which they risk their life at sea.' Congressional legislation favoring seamen is 'largely remedial and calls for liberal interpretation in favor of the seamen.'
Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002).
Mountain Park Homeowners Ass'n v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994).
Hartley v. State, 103 Wn.2d 768, 775, 698 P.2d 77 (1985) (citing LaPlante v. State, 85 Wn.2d 154, 531 P.2d 299 (1975); Balise v. Underwood, 62 Wn.2d 195, 381 P.2d 966 (1963)).
Seattle-First Nat'l Bank v. Conaway, 98 F.3d 1195, 1199 n. 2 (9th Cir. 1996).
Flores v. Am. Seafoods, Co., 335 F.3d at 907.
Isbrandtsen Co. v. Johnson, 343 U.S. 779, 782, 72 S. Ct. 1011, 96 L. Ed. 1294 (1952).
In Flores, seamen alleged that their contract violated 46 U.S.C. sec. 10601 because the employer conveyed the terms of the contract's discretionary bonus provision orally rather than in writing. The employer explained in detail the terms of the bonus, and the seamen did not argue that the oral terms were ambiguous. The court held that an oral explanation of written provisions warranted voiding the contract under the statute 'only if the oral terms were imposed under duress, or involved the kind of coercion or deception that section 10601(a) is designed to prevent.' The court held that the contract did not violate the statute because 'the basic terms of a discretionary bonus were specified and [the employer's] failure to spell out all of the details in writing was not deceptive.' Thus, a contract does not violate 46 U.S.C. sec. 10601 even if all the details are not reduced to writing, provided the employer otherwise specifies the basic terms of compensation and does not deceive or coerce the seamen when doing so. In Flores, it was within the employer's discretion whether to pay a bonus, but the employees knew the basic terms of the bonus before they signed their contracts and the ship left port. Here, the contract gave Premier Pacific discretion to define the basic terms of production-based compensation after the crewmembers signed the contracts and, more importantly, after the Ocean Phoenix left for Alaska. The contracts stated that production-based compensation depended on unit rates, but Premier Pacific never explained how it determined the unit rates. Only after the Ocean Phoenix left for the Bering Sea did Premier Pacific reveal the unit rates. The unit rate is one of two components used in calculating production-based compensation. It is thus clearly a basic term of compensation that Premier Pacific must define before the crewmembers sign their contracts. Unlike the employer in Flores, Premier Pacific did not sufficiently define the terms of compensation either orally or in writing.
Flores, 335 F.3d at 909.
Id. at 914.
Id.
Id.
The number of tons of fish caught is the other factor.
Premier Pacific's contract with the seamen does not explain how the unit rate will be determined other than to state in the contract that unit rates 'vary with the different types of products produced.'
Premier Pacific contends that it posted the unit rates at the beginning of the trip as provided in the contract. But it fails to explain why it waited until shortly after the ship left port to post the unit rates. A promise that compensation will be based on unit rates means nothing without knowing what those rates are, or at least how those rates are determined, at a time that gives the crewmembers the option of not leaving on the voyage. The purpose of the statute is to make sure seamen know all the essential contract terms before the ship leaves port, so they can make an informed decision about whether to sail with the ship. Here, once the ship left Seattle and the unit rates were then posted, a crewmember who was dissatisfied with the unit rates was without recourse until the ship reached its next stop in Dutch Harbor, Alaska. At this point, it is too late for him to join another crew that season, and he has to (1) pay for his room and board on the ship, (2) find his own way back to Seattle, and (3) face the possibility of being blackballed in the fish processing industry and unable to find work in future seasons. We hold that 46 U.S.C. sec. 10601 requires an owner to fully define the terms of compensation before the ship leaves port in order to give seamen employees a real opportunity to decide not to sail with the ship if the final contractual terms are not satisfactory.
At oral argument, Premier Pacific's counsel stated that the unit rates were posted four days after the contracts were signed.
Premier Pacific argues in the alternative that the clearly defined terms of the base rate guarantee established the contract's validity under 46 U.S.C. sec. 10601 even if the production-based compensation terms were not sufficiently defined. The crewmembers argue that the statute requires that the contract include the terms of any compensation arrangement, not just the base rate. The statute is clear on its face, and Premier Pacific cites no support for its proposition that a compliant base rate term cures an insufficient production-based contract term. The language of the contract clearly indicates that Premier Pacific intended that production-based compensation would be the crewmembers' main compensation incentive:
'Calculation of compensation shall be based on production with a base rate guarantee.' That makes the failure to define the terms of production-based compensation even more egregious as it will likely be the actual basis for the seamens' compensation. Premier Pacific violated 46 U.S.C. sec. 10601 because it did not sufficiently define a basic term of compensation before the Ocean Phoenix left Seattle.
(Emphasis added.) The crewmembers assert that the hourly minimum has never been the basis for crew pay in a pollock fishing season. Pat Hermens, production manager on the Ocean Phoenix, stated that the base rate safety net had not been used as the basis for crew pay during the pollock season since 1990, before any of the plaintiff crewmembers worked on the Ocean Phoenix.
The remedy for violation of 46 U.S.C. sec. 10601 is addressed by 46 U.S.C. sec. 11107:
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 engagement, whichever is higher.
46 U.S.C. sec. 11107 provides 'a statutory default to prevailing market wage in the case of an invalid contract.' Harper v. U.S. Seafoods, LP, 278 F.3d 971, 977 (9th Cir.), cert. denied, 537 U.S. 879 (2002).
We reverse the trial court's summary judgment order on this issue and remand for further proceedings consistent with this opinion. We also remand for determination of fees and expenses under RAP 18.1(i).
Affirmed in part, reversed in part and remanded.
COLEMAN and BECKER, JJ., Concur.