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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bodzai v. Arctic Fjord, Inc. (10/15/99) sp-5195

Bodzai v. Arctic Fjord, Inc. (10/15/99) sp-5195

Notice:  This opinion is subject to 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, phone (907) 264-0608, fax (907) 264-0878.



		THE SUPREME COURT OF THE STATE OF ALASKA
	


	MIKLOS BODZAI,				)
							)	Supreme Court No. S-8828
   				Appellant,		)
							)	Superior Court No.
		v.					)	3AN-98-3151 CI
							)
	ARCTIC FJORD, INC.,			)	O P I N I O N
							)
   				Appellee.		)	[No. 5195 - October 15, 1999]
		______________________________)



Appeal from the Superior Court of the State of 
Alaska, Third Judicial District, Anchorage,
	Dan A. Hensley, Judge.


Appearances:  Gerald W. Markham, Law Offices 
of Gerald W. Markham, and Mark A. Sandberg, 
Sandberg, Wuestenfeld & Corey, Anchorage, for 
Appellant.  Kenneth G. Schoolcraft, Jr., Le 
Gros, Buchanan & Paul, Anchorage, for 
Appellee.


Before:	Matthews, Chief Justice, Eastaugh, 
Fabe, Bryner, and Carpeneti, Justices.  


CARPENETI, Justice.


I.	INTRODUCTION

This case involves Miklos Bodzai's appeal of the superior 
court's dismissal of his personal injury action against Arctic 
Fjord, Inc.  The superior court decided that Alaska was an improper 
forum for Bodzai's action based on a forum-selection clause in 
Bodzai's employment contract with Arctic Fjord.  Because Bodzai's 
personal injury claims did not arise under the terms of his 
employment contract, we reverse the superior court's dismissal.
2. FACTS AND PROCEEDINGS
Miklos Bodzai was injured while serving aboard the F/V 
ARCTIC STORM.  He was present on the fishing vessel pursuant to a 
contract he signed with Arctic Fjord, Inc. in 1996. 
Bodzai sued Arctic Fjord in Alaska state court.  His 
complaint alleged three basic causes of action: (1) maintenance, 
cure, and unearned wages; (2) unseaworthiness; and (3) negligence. 
 Arctic Fjord moved to dismiss the complaint pursuant to two Alaska 
Rules of Civil Procedure:  Rule 3(d), which allows dismissal for 
forum non conveniens; and Rule 12(b)(3), which allows dismissal for 
improper venue.  Arctic Fjord stated that this latter ground was 
"on the basis of a contractual forum selection clause." The 
relevant clause provided: "Any dispute which may arise under the 
terms of this contract shall be determined by the courts in King 
County, Washington."
The superior court granted Arctic Fjord's motion to 
dismiss.  It ruled that the forum-selection clause in Bodzai's 
contract was valid and applied to Bodzai's claims.  The dismissal 
was without prejudice to Bodzai's right to re-file his complaint in 
King County, Washington, the forum specified in the contract.  The 
superior court declined to address Arctic Fjord's alternative 
grounds for dismissal -- namely, forum non conveniens.  
Bodzai appeals. 

3. DISCUSSION
1. Standard of Review
Whether the forum-selection clause is enforceable is a 
question of law.  We apply our independent judgment to such 
questions.1 
B.	Bodzai's Claim for Maintenance and Cure Does Not 
Arise under the Terms of His Employment Contract.
In the unique parlance of maritime law, a seaman's2  cause 
of action for "maintenance and cure"is defined as follows: 
"'Maintenance' is the right of a seaman to food and lodging if he 
falls ill or becomes injured while in the service of the ship.  
'Cure' is the right to necessary medical services.  Both extend to 
the maximum point of recovery."3   This duty on the employer's part 
is an absolute one.4   The duty includes payment of the seaman's 
wages "at least so long as the voyage is continued."5 

In Brown v. State, we quoted the Supreme Court of the 
United States for the proposition that "[t]he duty to provide 
maintenance and cure is imposed by the law itself as one annexed to 
the employment.  Contractual it is in the sense that it has its 
source in a relation which is contractual in origin, but given the 
relation, no agreement is competent to abrogate the incident."6   We 
further underlined this point by quoting from another Supreme Court 
case that held that "[w]hen the seaman becomes committed to the 
service of the ship the maritime law annexes a duty that no private 
agreement is competent to abrogate."7   Further, we noted 
approvingly in Brown that "[t]he federal courts have consistently 
stated that sailors' rights to maintenance and cure cannot be 
abrogated by contract."8 

Arctic Fjord argues that "courts have recognized that a 
seaman's right to maintenance and cure 'arises out of the contract 
of employment.'" The Fifth Circuit cases that it cites do indeed 
contain language to that effect;9  however, in Brown, we reached a 
different conclusion, one more consistent with the Supreme Court's 
jurisprudence on the matter.  It is well-established that "this 
court is not bound by decisions of federal courts other than the 
United States Supreme Court on questions of federal law."10 

The other case that Arctic Fjord cites in support of its 
position is a Supreme Court opinion; however it, in fact, supports 
Bodzai on this issue.  In Cortes v. Baltimore Insular Line, Inc., 
Justice Cardozo held that the duty of a maritime employer to 
provide injured seamen with maintenance and cure "is one annexed by 
law to a relation, and annexed as an inseparable incident without 
heed to any expression of the will of the contracting parties."11  
 In other cases, the Supreme Court has likewise noted: "In the 
United States the obligation has been recognized consistently as an 
implied provision in contracts of marine employment."12   Therefore, 
it cannot be said that Arctic Fjord's duty "arises under the terms"
of the contract Bodzai signed.  Rather, whatever those terms, the 
duty to provide maintenance and cure was annexed to that contract 
by operation of law.
The Supreme Court reaffirmed the breadth of the right to 
maintenance and cure and its divorce from contractual limitation in 
Farrell v. United States:13 
It has been the merit of the seaman's right to 
maintenance and cure that it . . . can be . . 
. administered without technical 
considerations. . . .  For any purpose to 
introduce a graduation of rights . . . based 
on some relative proximity of the activity at 
time of injury to the "employment"or the 
"service of the ship"would alter the basis 
and be out of harmony with the spirit and 
function of the doctrine. . . .[14]

The apparent confusion in Arctic Fjord's argument on this 
point is well addressed by a leading commentary on maritime law, 
Gilmore and Black's treatise.  "The right to maintenance and cure 
arises when the seaman signs articles and continues until he has 
received his discharge.  It is the fact of employment, or, more 
accurately, the fact that the seaman is engaged in the service of 
the ship which creates the right and not the form of contract: a 
term in a contract under which the seaman purported to waive the 
right would unquestionably be held void."15 

The argument that the maintenance and cure duty "arises 
under the terms"of Bodzai's contract, then, is inconsistent with 
both this court's and the Supreme Court's precedent, as well as 
with scholarly opinion.  Arctic Fjord provides no compelling reason 
for us to depart from this precedent.  Bodzai's claims for 
maintenance and cure are not controlled by the contract's forum-
selection clause, and the superior court erred in dismissing the 
claims for improper venue.
C.	Bodzai's Claim for Unseaworthiness Does Not Arise 
under the Terms of His Employment Contract.

It is even more clear that Bodzai's right to recover 
against Arctic Fjord for unseaworthiness does not "arise under"the 
terms of his employment contract.  The basis for a seaman's right 
to recovery under this theory is "the shipowner's duty to provide 
a seaworthy vessel."16   As we held in Brown, the duty "to provide 
a vessel and appurtenances reasonably fit for their intended use"
is absolute.17 

In Brown, we adopted the Supreme Court's holding in 
Sieracki that "liability is neither limited by conceptions of 
negligence nor contractual in character.  It is a form of absolute 
duty owing to all within the range of its humanitarian policy."18  
 We went on to emphasize that, like an employer's duty to provide 
maintenance and cure, "[t]he right to recover under the doctrine of 
seaworthiness is also plainly not susceptible to contractual 
modification."19   We quoted the Supreme Court in driving this point 
home:  "[T]he necessary consequences of this absolute duty are that 
the obligation of seaworthiness cannot be shifted about, limited, 
or escaped by contracts or the absence of contracts and that the 
shipowner's obligation is rooted, not in contracts, but in hazards 
of the work."20 
Therefore, Bodzai's argument that his seaworthiness claim 
does not "arise under"the terms of his employment contract is 
correct.  The superior court should not have dismissed this claim 
based on the contract's forum-selection clause.
4. Bodzai's Jones Act Claim Does Not Arise under the 
Terms of His Employment Contract.

Bodzai's final claim, that Arctic Fjord negligently 
caused his injuries, is encompassed by the federal Jones Act.21   The 
Jones Act provides, in part:  "Any seaman who shall suffer personal 
injury in the course of his employment may . . . maintain an action 
for damages at law . . . ."22   In enacting the Jones Act, Congress 
apparently "intended to change the maritime law as stated in The 
Osceola under which an injured seaman could recover more than his 
maintenance and cure only in an action based on unseaworthiness and 
could not recover damages for negligence of master or crew in the 
navigation or management of the ship."23  

Just as Bodzai's common-law maritime claims do not "arise 
under the terms"of his employment contract, neither does his Jones 
Act claim.24   Rather, this claim "arises under"the Jones Act 
itself, which "provides a right of action for injury or death to 
sailors caused by the negligence of their employers."25   The right 
is dependent on the employment contract only inasmuch as the 
contract creates the employer-employee relationship, which is a 
predicate for liability to attach.26 
5. Whether Arctic Fjord May Gain a Dismissal for Forum 
Non Conveniens is Irrelevant to this Appeal.


Finally, Arctic Fjord cites several forum non conveniens 
cases in which seamen were denied their choice of forum.  These 
cases are not relevant to this appeal.  As one of the cases cited 
by Arctic Fjord states, the forum non conveniens determination "is 
committed to the sound discretion of the trial court."27   Multiple 
factors are to be weighed when trial courts make these decisions.28  
 In contrast, the question of the enforceability of the forum-
selection clause in Bodzai's contract is a purely legal issue, not 
the sort of fact-intensive, flexible inquiry undertaken when trial 
courts examine forum non conveniens motions.
This case itself demonstrates why the two issues may not 
be collapsed.  If the facts are as Arctic Fjord alleges, Arctic 
Fjord may prevail on its forum non conveniens theory, which it made 
in the alternative in the trial court, despite the unenforceability 
of the forum-selection clause.  Arctic Fjord states that "[t]he 
parties and this litigation have numerous contacts with the State 
of Washington and virtually none with Alaska,"and then goes on to 
list in detail what those contacts are.  A superior court might 
find -- after full opportunities for both sides to present their 
evidence and argument -- that Bodzai's action should be dismissed 
on forum non conveniens grounds, or it might not.  We express no 
opinion on the proper determination of that issue.  But it is a 
separate issue from the efficacy of the contractual forum-selection 
clause.  The summary dismissal of Bodzai's suit based on the 
contractual forum-selection clause was improper as a matter of law.

4. CONCLUSION
The superior court erred when it dismissed Bodzai's 
claims based on the forum-selection clause, because Bodzai's claims 
do not "arise under the terms"of his employment contract.  
Accordingly, the superior court's order is REVERSED and the case is 
REMANDED for further proceedings.

Footnotes:
	
1 	See Abbott v. State, __ P.2d __, Op. No. 5115 at 5 n.6 
(Alaska, May 14, 1999) (citing Langdon v. Champion, 752 P.2d 999, 
1001 (Alaska 1988); Gudenau & Co. v. Sweeney Ins., Inc., 736 P.2d 
763, 766-67 (Alaska 1987)).
2 	The term "seaman"is a maritime law term of art, not 
exclusive to one gender.
3 	Brassea v. Person, __ P.2d ___, Op. No. 5158 (Alaska, 
August 13, 1999) at 5 (quoting 1 Thomas J. Schoenbaum, Admiralty 
and Maritime Law, 348 (2d ed. 1994)).
4 	See Brown v. State, 816 P.2d 1368, 1371 (Alaska 1991) 
("This duty does not depend upon fault.") (quoting De Zon v. 
American President Lines, 318 U.S. 660, 667 (1943)) (internal 
quotation marks omitted).
5 	Grant Gilmore & Charles L. Black, Jr., The Law of 
Admiralty  6-2, at 275 (2d ed. 1975) (quoting The Osceola, 189 
U.S. 158 (1903)). 
6 	Brown, 816 P.2d at 1371 (quoting Cortes v. Baltimore 
Insular Line, Inc., 287 U.S. 367, 371 (1932)) (internal quotation 
marks omitted).
7 	Id. (quoting De Zon, 318 U.S. at 667) (internal quotation 
marks and ellipsis omitted).
8 	Id. at 1373 (citing Cortes, 287 U.S. at 371; Gardiner v. 
Sea-Land Serv., Inc., 786 F.2d 943, 946 (9th Cir. 1986); Barnes v. 
Andover Co., 900 F.2d 630, 637 (3d Cir. 1990)).
9 	See Marinechance Shipping, Ltd. v. Sebastian, 143 F.3d 
216, 221-23 (5th Cir. 1998) (holding that contract clause providing 
that Philippine court had "original and exclusive jurisdiction over 
any and all disputes or controversies arising out of or by virtue 
of this Contract"applied to seamen's personal injury claims); 
Baker v. Raymond Int'l, Inc., 656 F.2d 173, 185 (5th Cir. Unit A 
Sept. 1981) ("Although an injured seaman's right to these forms of 
support is implied by law, it 'arises out of the contract of 
employment.'") (citations omitted).
10 	Totemoff v. State, 905 P.2d 954, 963 (Alaska 1995) 
(citation omitted).
11 	Cortes, 287 U.S. at 372 (emphasis added).
12 	Aguilar v. Standard Oil Co., 318 U.S. 724, 730 (1943) 
(emphasis added) (citing Harden v. Gordon, 11 F. Cas. 480, 482 
(C.C.D. Maine 1823) (No. 6,047); The Atlantic, 2 F. Cas. 121, 130 
(C.C.S.D.N.Y. 1849) (No. 620); Cortes, 287 U.S. at 371).
13 	336 U.S. 511 (1949).
14 	Id. at 516.
15 	Gilmore & Black, supra note 5,  6-7, at 287 (emphasis 
added) (footnotes omitted).
16 	Brown at 1372 (citing Gilmore and Black, supra note 5,  
6-38 to 6-44(a), at 383-404).
17 	Id. (citations omitted).
18 	Id. at 1372 (emphasis added) (quoting Seas Shipping Co. 
v. Sieracki, 328 U.S. 85, 94-95 (1946)).
19 	Id. at 1373 (citing Sieracki, 328 U.S. at 94-95).
20 	Id. at 1375 (quoting Sieracki, 328 U.S. at 95; Reed v. 
S.S. Yaka, 373 U.S. 410, 414-15 (1963)) (internal citations and 
quotation marks omitted) (emphasis added).
21 	46 U.S.C. App.  688(a) (1999).
22 	46 U.S.C. App.  688(a).
23 	Gilmore & Black, supra note 5,  6-20, at 325 (reviewing 
legislative text and history).
24 	See Lauritzen v. Larsen, 345 U.S. 571, 588 (1953) 
(holding that "a Jones Act suit is for tort"and "does not seek to 
recover anything due under the contract or damages for its 
breach").
25 	Brown, 816 P.2d at 1372.
26 	See Gilmore & Black, supra note 5,  6-21(a), at 337.
27 	Bromley v. Mitchell, 902 P.2d 797, 800 (Alaska 1995) 
(quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981)). 
 See also Crowson v. Sealaska Corp., 705 P.2d 905 (Alaska 1985).
28 	In Crowson we identified some of these factors: "[T]he 
ease of access of proof, the availability and cost of obtaining 
witnesses, the possibility of harassment of the defendant in 
litigating in an inconvenient forum, the enforceability of the 
judgment, the burden on the community in litigating matters not of 
local concern, and the desirability of litigating local matters in 
local courts."