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Basel et al v. Westward Trawlers et al (3/4/94), 869 P 2d 1185
<![CDATA[
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
ANNA L. BASEL, A Citizen of )
Oregon, Personal Representa- ) Supreme Court No. S-4708
tive of the Estate of Ray )
Basel, BERNARD HEANEY, A ) Superior Court No.
Citizen of New York, Personal ) 3KO-88-43 CI
Representative of the Estate )
of Shawn Heaney; OLAFIA ) O P I N I O N
JOHNSDOTTIR, A Citizen of )
Iceland, Personal Representa- ) [No. 4064 - March 04, 1994]
tive for the Estate of Sveinn )
Ben Adalsteinsson; and LINDA )
PERRI, A Washington Citizen, )
Personal Representative of )
the Estate of Paul Rowe, )
)
Appellants, )
v. )
)
WESTWARD TRAWLERS, INC., )
STEUART INVESTMENT CO., )
STEUART FISHERIES, INC., DON )
HANSON, F/V HALF MOON BAY, )
RICK JOHNSON, F/V SUNSET BAY, )
TAIYO FISHERIES COMPANY, )
WESTERN ALASKA FISHERIES, )
INC., VIKING LIMITED )
PARTNERSHIP, HORIZON TRAWLERS )
INC., ROBERT DOOLEY, HUGH )
RILEY, JOHN A. DOOLEY, SEA )
PACIFIC, INC., )
)
Appellees. )
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Kodiak,
Brian C. Shortell, Judge.
Appearances: Gerald W. Markham, Kodiak,
for Appellants. John A. Treptow, Atkinson,
Conway & Gagnon, Anchorage, for Appellees
Westward Trawlers, Inc., Steuart Investment
Co., Steuart Fisheries, Inc., Don Hanson, F/V
Half Moon Bay, Rick Johnson, F/V Sunset Bay.
Herbert H. Ray, Jr., Bliss Riordan,
Anchorage, for Appellees Taiyo Fisheries Co.,
Western Alaska Fisheries Inc., Viking Limited
Partnership, Horizon Trawlers, Inc., Robert
Dooley, Hugh Riley, John A. Dooley, Sea
Pacific, Inc.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices.
RABINOWITZ, Justice.
The F/V Alert, owned and captained by Melvin Wick,
disappeared in the Shelikof Straits near Kodiak Island in
February 1985. This appeal arises from wrongful death claims
that Anna L. Basel and others (collectively Basel), in their
capacities as personal representatives of four deceased crew
members of the F/V Alert, asserted against the participants in a
Magnuson Act joint fishing venture.1
I. FACTS AND PROCEEDINGS
Melvin and Shari Wick were the owners of the F/V Alert,
and Melvin Wick was the vessel's master, when it disappeared in
February 1985. The Wicks and the other owners of the catcher
vessels appointed Westward as their agent in dealing with Taiyo.
Under its agreements to participate with the Wicks and the owners
of the other catcher vessels, Westward was to coordinate joint
fishing operations and to act as a representative for the owners
"in all dealings between the Fishing Vessels and Taiyo." As
payment for its services, Westward was to receive "two and one-
half percent (2-1/2%) of the gross value of all consideration due
Owner for deliveries of fish by Owner's Vessel to the Processing
Vessels."
Taiyo and Westward entered into a "Fishing Agreement -
Alaska Pollack Fishing"in May of 1983.2 Under the terms of this
agreement Taiyo was obligated to purchase Alaska pollack and
other bottom fish and was further obligated to provide two
processing vessels. Westward was to coordinate fishing
operations, to arrange for seven American-owned catcher vessels
to catch the pollack and other bottom fish, and to supply the
fish to the two Taiyo processing vessels.
Westward subsequently contacted Melvin Wick, who
eventually agreed to participate in the 1983 fishery. Westward
and Wick entered into an "Agreement to Participate in Joint
Venture and to Appoint Agent." Under this agreement Wick was to
provide a fully licensed and equipped F/V Alert, ready for
fishing, and a crew. Westward entered into similar separate
agreements with other catcher vessel owners.
In 1983 Taiyo, Westward, the F/V Alert and six other
American-owned catcher vessels engaged in a Magnuson Act joint
venture fishing operation.3 Subsequently, Westward and Taiyo
entered into a "Memorandum of Agreement for the 1985 Joint
Venture Pollack Fisheries." This agreement incorporated the
terms and conditions of the 1983 fishing agreement.
Additionally, it established new tonnage limits and prices to be
paid by Taiyo for the fish delivered by the catcher vessels
during the 1985 fishery.
In 1985, the catcher vessels entered into an oral
agreement to share or "pool"certain receipts. In the event that
a catcher vessel's delivery of fish reached or exceeded an agreed
upon fifty metric ton limit, the extra revenue for the additional
fish "would go into a pool that would be shared amongst the
catcher vessels." This pooling agreement did not affect the
price per pound that Taiyo paid for the fish purchased from the
catcher vessels, since this price was the same whether or not a
delivery exceeded fifty metric tons. Similarly, Westward's 2.5%
compensation remained fixed whether or not a delivery exceeded
fifty metric tons.
After the disappearance of the F/V Alert, the personal
representatives of four fishers who died on the vessel filed
claims in a limitation proceeding initiated by Shari Wick
pursuant to 46 U.S.C. 183. These claims were eventually
settled for approximately $1,810,000.00.4 After the settlement,
Basel filed a complaint in the superior court against the 1985
Shelikof Fishery Joint Venture for wrongful death, pre-death pain
and suffering, negligence, and unseaworthiness.
In the superior court action Basel asserted that
Westward/Steuart and Taiyo formed a common law joint venture with
the Wicks and that this joint venture was the Jones Act employer
of the decedents at the time of their deaths.5 In the event the
joint venture was not found to be the Jones Act employer, Basel
alternatively alleged that the joint venture was vicariously
liable under the Jones Act for the negligence of the joint
venturer skipper, Melvin Wick.
Westward, Steuart, and the masters of the F/V Sunset
Bay and the F/V Half Moon Bay moved for summary judgment,
alleging that (1) no joint venture existed, because there was no
evidence of the essential elements of profit and loss sharing and
the right of joint control of the adventure; and (2) Melvin Wick
was the owner and operator of the F/V Alert and the decedents'
sole Jones Act employer. Taiyo and Westward also filed a motion
for partial summary judgment, asserting that they were not Jones
Act employers and were not liable for the unseaworthiness claim
because they were neither owners of the F/V Alert nor joint
venturers with Wick.
Basel opposed the motions for summary judgment and
cross-moved for summary judgment, requesting a determination that
as a matter of law a joint venture existed among all the parties,
and that the joint venture was the equitable owner of the F/V
Alert and thus owed the Alert's crew a duty of seaworthiness.
The superior court initially denied the summary judgment motions
and cross-motion, concluding that genuine issues of material fact
existed regarding whether there was a common law joint venture,
who had equitable ownership of the F/V Alert, what the effect of
the duty of seaworthiness was, and whether the joint venture was
Wick's superior employer and thus liable to the decedent seamen.
Taiyo and Westward subsequently moved for reconsideration on the
ground that there had been no sharing of profits, an essential
element of a joint venture under federal maritime law, Alaska
law, and Washington law.
The superior court granted Taiyo's motion for
reconsideration and modified its prior decision, granting Taiyo
summary judgment. The superior court reasoned that Basel offered
no evidence of an "agreement to share profits and losses," that
evidence in support of Basel's theory of joint venture by
estoppel was insufficient to raise a genuine issue of material
fact, and that use of the term "joint venture"in the parties'
agreements does not necessarily mandate the conclusion that Taiyo
or Westward/Steuart was Basel's Jones Act employer.6 This appeal
followed.
II. JURISDICTION
[T]he admiralty jurisdiction of the
United States extends to all waters, salt or
fresh, with or without tides, natural or
artificial, which are in fact navigable in
interstate or foreign water commerce, whether
or not the particular body of water is wholly
within a state, and whether or not the
occurrence or transaction that is the
subject-matter of the suit is confined to one
state.
Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty 31-32
(2d ed. 1975). State courts may adjudicate claims in admiralty
under the "saving to suitors"clause of 28 U.S.C. 1333.7
Shannon v. City of Anchorage, 478 P.2d 815, 818 & n.7 (Alaska
1970). In Shannon we said that "seamen may bring saving to
suitors clause suits under the Jones Act in state courts.
Apparently maritime rules of substantive law, as modified by the
Jones Act, apply in saving clause cases in state courts under the
Jones Act." Id. at 818 (footnote omitted).
III. ARGUMENTS
The parties do not contest that the F/V Alert
disappeared in the 200 mile contiguous zone in the Shelikof
Strait in waters between Kodiak Island and the Alaskan Peninsula.
We therefore initially look to federal maritime law to determine
whether the superior court correctly ruled that no genuine issues
of material fact were presented relating to the existence of a
joint venture between Taiyo, Westward/Steuart, and the owners of
the F/V Alert, and whether the superior court correctly held that
as a matter of law Basel had failed to prove the existence of a
joint venture between Taiyo, Westward/Steuart and the owners of
the F/V Alert.
A. Applicable Law
The Jones Act does not contain a definition of "joint
venture." The superior court, in holding that the showing of
profits and losses is an essential element of a joint venture,
did not specify what law it was applying.
Basel argues that paramount maritime law does not
require a showing of profits and losses for the establishment of
a joint venture. She relies on two lines of federal authority,
namely Davidson v. Enstar Corp., 848 F.2d 574 (5th Cir.),
superseded, 860 F.2d 167 (5th Cir. 1988) (joint venture in the
context of litigation under the Longshore and Harbor Workers'
Compensation Act, 33 U.S.C. 901), and Fulcher's Point Pride
Seafood, Inc. v. M/V "Theodora Maria", 935 F.2d 208 (11th Cir.
1991) (litigation involving joint ventures and maritime liens
under the Maritime Lien Act, 46 U.S.C. 31342).8
State law applies in admiralty cases in the absence of
either a controlling federal statute or a rule established by the
federal courts. See Wilburn Boat Co. v. Fireman's Fund Ins. Co.,
348 U.S. 310, 313-14 (1955). Taiyo and Westward/Steuart contend
that no maritime law defining joint venture exists. More
particularly, they note that maritime courts apply the relevant
state's law regarding joint venture in determining whether a
joint venture exists.9
Review of the relevant authorities persuades us that no
paramount or general federal maritime law defines joint venture
in the context of Jones Act litigation.10 Further, we are not
persuaded that there is a special need for uniformity regarding
the defining elements of a joint venture.11 We thus turn to
Alaska law.
B. Alaska Law of Joint Venture
Taiyo and Westward/Steuart take the position that
Alaska law establishes that the right to share profits and losses
is an essential element of a joint venture. They are correct.
Alaska has approved Professor Williston's formulation of the
requirements of a joint venture. Nicholas v. Moore, 570 P.2d
174, 178 (Alaska 1977). According to Williston the requirements
are
(a) A contribution by the parties
of money, property, effort, knowledge,
skill, or other asset to a common
undertaking;
(b) A joint property interest in the
subject matter of the venture;
(c) A right of mutual control or
management of the enterprise;
(d) Expectation of profit, or the
presence of "adventure,"as it is sometimes
called;
(e) A right to participate in the
profits;
(f) Most usually, limitation of the
objective to a single undertaking or ad hoc
enterprise.
2 Samuel Williston, Williston on Contracts 318A, at 563-65
(Walter H.E. Jaeger ed., 3d ed. 1959) (footnotes omitted); see
also Fomby v. Whisenhunt, 680 P.2d 787, 790 (Alaska 1984); Alaska
State Hous. Auth. v. Blomfield, Dudley & Ekness, 662 P.2d 114,
117 (Alaska 1983); Northern Lights Motel, Inc. v. Sweaney, 561
P.2d 1176, 1187 (Alaska 1977). Our decisions also require a
sharing of the profits for the establishment of a joint venture.12
C. A Joint Venture Was Not Established as to Taiyo
We affirm the superior court's ruling that Basel failed
to establish the existence of a joint venture between Taiyo,
Westward/Steuart, and the F/V Alert. Under the operative
agreements between the parties, Taiyo's role was to purchase and
then process fish purchased from the catcher boats. These
agreements fixed the prices that Taiyo was to pay the catcher
boats. Taiyo's obligation to pay these agreed-upon prices to the
catcher boats remained fixed regardless of whether or not it made
any profits from the fish it processed. Taiyo profited only in
the larger sense of the word--that is, if it made a profit from
the fish it purchased and processed. There is no evidence in the
record that Taiyo agreed to share profits or losses with its
alleged joint venturers.
Taiyo's agreement to lend its resources and expertise
to assist catcher boats in the search for and retrieval of lost
codends does not establish that it was engaged in a joint venture
with the catcher boats, nor does the fact that the relationship
with Westward/Steuart was described as a joint venture. As noted
above, the joint venture terminology results from the provisions
of the Magnuson Act and the text of 50 C.F.R. 611.2, which
contains an extremely broad definition of joint venture.
D. A Joint Venture Was Not Established as
to Westward/Steuart
Under the controlling agreement, Westward/Steuart was
to receive a fixed percentage (2.5%) of the gross receipts paid
by Taiyo to the catcher boats for fish sold to Taiyo.
Westward/Steuart was to receive its 2.5% of the gross receipts
whether or not any of the catcher boats made a profit on their
sales to Taiyo. Westward/Steuart also received 2.5% of the gross
sales receipts from any hauls of at least fifty metric tons of
fish.
There is no evidence in the record that
Westward/Steuart agreed to share the profits or losses with other
alleged joint venturers. Westward/Steuart's compensation was
based solely on a percentage of the catcher vessels' gross
receipts, not any share in any profits as that term is normally
understood. Just as "the sharing of gross returns does not of
itself establish a partnership,"AS 32.05.020(3), the sharing of
gross receipts between Westward/Steuart and the catcher boats
does not establish the existence of a joint venture. Therefore,
we affirm the superior court's ruling that Basel did not
establish the existence of a joint venture between
Westward/Steuart, Taiyo and the F/V Alert.
E. A Joint Venture Was Not Established as to Taiyo
Since It Had No Right of Mutual Control of Management
of the Alleged Adventure
Basel argues that the relevant documents demonstrate
that Taiyo, Westward/Steuart and the catcher vessels agreed to a
detailed plan for the coordination of the combined efforts of the
two processing vessels and the catcher vessels. Pursuant to
those agreements, the parties delegated a significant degree of
control to Westward, who was to act as the parties' coordinator.
Basel contends that these agreements deprived the
skippers of their freedom to depart from an assigned location in
the face of danger:
[T]he ALERT's master did not have the
authority to unilaterally act for the para
mount protection of his vessel and its crew
. . . . Only when conditions deteriorated to
the point of "extreme emergency" which
"seriously" threatened the safety of the
vessel or the crew, could the vessel owner
arguably unilaterally leave, and only then at
the risk of being assessed damages if his
judgment of the situation was subsequently
determined to be precipitous.
In Nicholas we discussed the requirement that joint
venturers have the right of mutual control over all aspects of
the management of the enterprises. 570 P.2d at 178. Taiyo's
control over the F/V Alert was insufficient to establish a joint
venture or to impose vicarious liability upon it for Melvin
Wick's alleged negligence. There is no evidence that Taiyo had
the right to control Wick's performance as master of the F/V
Alert. Taiyo did not exercise any control over the management of
the F/V Alert in the outfitting, equipping, and hiring or firing
of the crew. Nor did Taiyo exercise any significant degree of
control over the details of the navigation of the F/V Alert.
F. A Joint Venture Was Not Established as to
Westward/Steuart Since it Had No Right of Mutual
Control or Management of the Alleged Joint Venture
Study of the record persuades us that Westward is
correct in its assertion that there is no evidence in the record
establishing that Westward had a right of mutual control over the
navigation of the catcher vessels. The fact that the parties'
agreement provided for the coordination of catcher deliveries to
the processing ships, a detailed manual calling for certain
procedures, and control over the transfer of fish from a floating
net does not establish that Westward had control over the
navigation of the F/V Alert when it disappeared in February 1985.
Rather, the sole authority and responsibility for the navigation
of the F/V Alert remained with the master of the vessel.13
G. The Superior Court Correctly Entered Summary
Judgment Against Basel on Her Joint Venture by Estoppel
Claim
Basel additionally argues that the superior court erred
in granting summary judgment against her on her joint venture by
estoppel claim. The essence of Basel's argument is that Taiyo
and Westward/Steuart employed joint venture language in the
agreements, and that this defined the relationship of the
parties. Given the parties' use of joint venture terminology,
Basel further contends that if Taiyo and Westward/Steuart wished
to avoid joint venture liability "in the face of these
agreements, at the very least they should have expressly so
declared."
Taiyo and Westward/Steuart counter that the superior
court granted summary judgment on this issue on the ground that
Basel had failed to show that the crew of the F/V Alert relied on
the existence of a common law joint venture. Taiyo and
Westward/Steuart also contend the superior court could have
granted summary judgment in their favor on the estoppel issue on
the basis that neither misrepresented that they were joint
venturers.
Taiyo and Westward/Steuart draw a valid distinction
between a Magnuson Act joint venture and a common law joint
venture. The only evidence Basel relies on in support of her
position is the 1985 Taiyo-Westward fishing agreement. Though
this agreement constituted an agreement to participate in a
Magnuson Act fishery joint venture,14 Basel adduced no evidence
that either Taiyo or Westward/Steuart misrepresented that they
were engaged in a common law joint venture.
Further, review of the record fails to reveal any
evidence that the crew of the F/V Alert relied on a
representation by either Taiyo or Westward/Steuart that they had
entered into a common law joint venture with Melvin Wick. Nor is
there any evidence that the crew of the F/V Alert believed that
they were employed by a joint venture consisting of Taiyo and
Westward/Steuart.15
IV. CONCLUSION
The superior court's grant of summary judgments in
favor of Taiyo and Westward/Steuart are AFFIRMED.
_______________________________
1 The principal appellees in this case are (1) Taiyo
Fishery Co., Ltd. (Taiyo), a Japanese fish processing firm whose
processing ships participated in the Magnuson Act 1985 fishery;
(2) Western Alaska Fisheries, Taiyo's wholly-owned subsidiary,
which undertook certain services to Taiyo and possibly others in
regard to the fishery; (3) Westward Trawlers (Westward), which
functioned as a coordinator between the Taiyo processing vessels
and the catcher vessels who had contracted with Westward to
supply fish for sale to the processing vessel, and which
determined where the vessels would fish and when they would
deliver fish to Taiyo; and (4) Steuart Investment Co. and Steuart
Fisheries, Inc. (Steuart), owners of the F/V Half Moon Bay and
F/V Sunset Bay, and their skippers, Don Hanson and Rick Johnson.
Steuart owned 50% of Westward and held two of three
seats on Westward's board of directors. Westward in turn held
part ownership interests in the Steuart vessels. Basel refers to
the mutual interests of these two enterprises as
Westward/Steuart.
2 In 1983 Taiyo applied to the Department of Commerce to
obtain foreign fishing vessel permits for two of its processing
vessels to fish the "Bering Sea and Aleutian Islands Groundfish"
as well as the "Gulf of Alaska." These permits were sought as
part of a Magnuson Act joint venture in support of U.S. vessels.
Taiyo's application was granted by the Department.
3 The Magnuson Act gives U.S. companies priority
access to fishery resources located within a 200-mile zone in
waters contiguous to the territorial sea of the United States; it
allows foreign fishing only if an international fishing treaty
permitting such activity existed at the time of the Act. 16
U.S.C. 1821(b), (d); see also United States v. Seafoam II, 528
F. Supp. 1133, 1135 (D. Alaska 1982); see generally H. Gary
Knight, Managing the Sea's Living Resources 83-85 (1977)
(summarizing Magnuson Act) Warren G. Magnuson, The Fishery
Conservation and Management Act of 1976: The First Step Towards
Improved Management of Marine Fisheries, 52 Wash. L. Rev. 427
(1977) (discussing substance of act, legislative history relating
to it, and act's impact on U.S. foreign policy). As originally
passed in 1976, it allowed foreign fisheries to sidestep some of
the effects of the act by creating "joint business ventures."
See Chris Blackburn, Alaskans Unwilling to Join Joint Venture,
Kodiak Daily Mirror, July 13, 1978, at A1; Fear Partnership Is a
Ploy, Kodiak Daily Mirror, Sept. 14, 1976, at A1. Foreign
processor partnerships did not have to be licensed under the 1976
Magnuson Act because they were not "fishing." The proliferation
of "joint ventures"combined with an inability to regulate the
field resulted in the 1978 Processor Priority Amendment. Pub. L.
No. 95-354, 92 Stat. 519 (1978). The Department of Commerce
through its administering agency, the National Oceanic and
Atmospheric Administration, promulgated regulations that defined
a joint venture as
any operation by a foreign vessel
assisting fishing by U.S. fishing vessels,
including catching, scouting, processing
and/or support. (A joint venture generally
entails a foreign vessel processing fish
received from U.S. fishing vessels and
conducting associated support activities.)
50 C.F.R. 611.2 (1992).
4 The Alert was officially registered in the name of
Melvin and Shari Wick. Shari Wick commenced a limitation action
on behalf of herself personally and as personal representative of
the Melvin Wick estate. The action proceeded in federal court in
a case captioned In Re: Complaint of Shari Wick, A85-639 Civil,
and was settled without adjudication of the merits of any
substantive issues. Though the settlement foreclosed future
claims against the Wicks, it expressly allowed Basel to sue any
other persons or entities allegedly liable for the accident.
5 Under the Jones Act, "[a]ny seaman who shall suffer
personal injury in the course of his employment may . . .
maintain an action for damages at law . . . and in case of the
death of any seaman as a result of any such personal injury the
personal representative of such seaman may maintain an action for
damages at law." 46 U.S.C. 688.
6 Westward/Steuart moved for summary judgment, arguing
that they were not participants in a joint venture because they
did not share profits. The superior court granted
Westward/Steuart partial summary judgment, stating that there was
insufficient evidence to support Basel's theory of joint venture
by estoppel. The superior court scheduled oral argument on the
issue of whether Westward/Steuart was part of a joint venture.
The court subsequently issued an oral order granting
Westward/Steuart summary judgment on the joint venture issue.
The court ruled that Westward/Steuart did not share profits,
therefore as a matter of law there was no joint venture.
The superior court denied Basel's motion for
reconsideration of its grant of partial summary judgment. There
after the parties filed a stipulation agreeing to dismiss with
prejudice all remaining claims against Shelikof Fisheries so that
Basel could immediately appeal from the summary judgment orders.
7 This statute provides in relevant part:
The district courts shall have
original jurisdiction, exclusive of the
courts of the States, of:
(1) Any civil case of admiralty or
maritime jurisdiction, saving to suitors in
all cases all other remedies to which they
are otherwise entitled.
28 U.S.C. 1333.
8 See also Sasportes v. M/V Sol de Copacabana, 581 F.2d
1204, 1208 (5th Cir. 1978).
9 See Itel Containers Int'l Corp. v. Atlanttrafik Express
Serv. Ltd., No. 86 CIV. 1313 (RLC), 1988 WL 75262, at *3, 5
(S.D.N.Y. July 13, 1988), aff'd in part, vacated in part on other
grounds, 909 F.2d 698, 701 (2d Cir. 1990); see also Lyon v.
Ranger III, 858 F.2d 22, 27 (1st Cir. 1988) (applying
Massachusetts law); Rowe v. Brooks, 329 F.2d 35, 40-41 (4th Cir.
1964) (applying Virginia law); Hellenic Lines, Ltd. v.
Commodities Bagging & Shipping, Process Supply Co., Inc., 611 F.
Supp. 665, 679 (D.N.J. 1985).
10 In reaching this conclusion we reject Basel's
contention that the Davidson and Fulcher's Point lines of federal
authority establish paramount federal maritime law to the effect
that the showing of profits and losses and the right to joint
control are merely important indicators of a joint venture
relationship rather than essential elements of such a
relationship.
Fulcher's Point deals with maritime liens, not with
employment status or tort liability under The Jones Act. 935
F.2d at 209. The emphasis of Fulcher was on nondilution of the
credit of the vessel and the maintenance of this security for
suppliers who are strangers to ownership of the vessel. See id.
at 211, 213. Davidson involved the application of the Longshore
and Harbor Workers' Compensation Act, 33 U.S.C. 901. 848 F.2d
at 575.
11 But cf. Evich v. Morris, 819 F.2d 256, 257-58 (9th
Cir.), cert. denied, 484 U.S. 914 (1987) (holding that uniformity
is as important in maritime survival actions as it is in maritime
wrongful death actions).
12 As Taiyo points out, a substantial majority of
jurisdictions consider the right of the parties to share in the
profits to be an essential element for the existence of a joint
venture. See, e.g., Karl's, Inc. v. Sunrise Computers, Inc., 901
F.2d 657, 659 (8th Cir. 1990) (applying and construing Oregon
law); Nelson v. Serwold, 687 F.2d 278, 282-83 (9th Cir. 1982)
(construing Washington law).
13 Westward correctly argues that the uncontroverted
evidence in the case establishes that
1) the individual vessel masters decided
where their vessels would fish, how long they
would fish, and what gear they would use; 2)
on February 13, 1985, it was the catcher
vessel masters who decided to stop fishing
because of deteriorating weather conditions;
3) Captain Wick was not required to advise
Westward of his departure from the fishing
grounds and did not need Westward's
permission to do so; 4) it was Wick's
unilateral decision to take his vessel to the
Alaska Peninsula side of Shelikof Straits; 5)
it was Captain Wick's unilateral decision to
turn his vessel around and head east back
toward Kodiak Island when his vessel began
icing up; 6) navigation of any vessel in the
Shelikof fishery was the responsibility of
the captain.
(Footnote omitted).
14 On this point Taiyo further elaborates:
Pursuant to the agreement, Taiyo, a
foreign corporation was to purchase fish from
U.S. vessels within the FCZ. Taiyo had to
obtain a joint venture permit from NOAA to
participate in the fishery. The agreement
was expressly conditioned on Taiyo's ability
to obtain those permits. It is undisputed
that Taiyo did obtain NOAA permits to
participate in a Magnuson Act joint venture
fishery and was purchasing fish from Wick
pursuant to those permits.
15 Not until her reply brief does Basel develop in any
significant respect her contention that the owners of the other
catcher vessels were joint venturers with the owners of the F/V
Alert. Basel's theory is based on the fact that the owners of
the catcher vessels agreed to pool proceeds derived from tows
exceeding 50 metric tons in order to compensate catcher vessels
that went off to scout new areas to fish while the other vessels
remained fishing in an area.
We reject this argument. Sharing in proceeds is not
the equivalent of a sharing in the profits and losses for
purposes of establishing joint venture status.
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