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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Krossa v All Alaskan Seafoods, Inc. et al. (10/12/2001) sp-5488

Krossa v All Alaskan Seafoods, Inc. et al. (10/12/2001) sp-5488

     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
                                 

JAMES KROSSA,                 )
                              )    Supreme Court No. S-9576
             Appellant,       )
                              )    Superior Court No.
     v.                       )    1JU-98-487 CI
                              )
ALL ALASKAN SEAFOODS, INC.,   )    O P I N I O N
an Alaska Corporation;        )
AAS-DMP MANAGEMENT, L.P.,     )    [No. 5488 - October 12, 2001]
a Washington Limited          )
Partnership; SHELIKOF         )
MARITIME, INC., an Alaska     )
Corporation,                  )
                              )
             Appellees.       )
______________________________)




          Appeal from the Superior Court of the State of
Alaska, First Judicial District, Juneau,
                      Larry R. Weeks, Judge.


          Appearances:  Shane C. Carew, Seattle,
Washington, for Appellant.  Gregory R. Henrikson and Daniel T.
Quinn, Richmond & Quinn, Anchorage, and Tom Montgomery, Montgomery
Scarp, PLLC, Seattle, Washington, for Appellees.


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


          FABE, Chief Justice.


I.   INTRODUCTION
          James Krossa signed a contract with All Alaskan Seafoods
to fish for crab in exchange for a percentage of the "gross
receipts" from the excursion.  After about a week fishing in
Russian waters, he learned that due to the unusual structure of All
Alaskan's business venture, the boat on which he fished would not
sell the crab or receive "gross receipts" in the conventional
sense.  Rather, All Alaskan calculated crew shares based on a
complicated formula using a fixed price per pound of crab caught. 
Krossa fulfilled the remainder of the contract and returned for a
second term, this time under a contract which made explicit All
Alaskan's payment formula.  He later sued for breach of the first
contract.  The superior court held that because there was no
meeting of the minds as to the meaning of "gross receipts," no
contract existed until Krossa learned All Alaskan's terms and
ratified them by his actions.  We affirm the superior court's
holding that, after one week of work, Krossa accepted All Alaskan's
payment terms and the parties formed a contract.  For the week
during which Krossa worked without a contract, he has already
received reasonable compensation.  We therefore conclude that the
superior court correctly denied any additional damages.
II.  FACTS AND PROCEEDINGS
          In 1994 All Alaskan Seafoods formed a joint venture with
a Russian company, Dalmoreproduct, which owned the rights to a
quota of crab in Russian waters.  All Alaskan provided catcher
vessels, a processing ship, and experienced crews that could teach
their Russian counterparts how to catch and process crab for the
frozen crab market.  Dalmoreproduct apparently retained ownership
of the crab and received all direct profits from the venture.  The
Russian company then paid All Alaskan a management fee.
          As part of its initial deal with Dalmoreproduct, All
Alaskan developed an unusual formula for paying crew members.
Because the boats passed the crab directly to Dalmoreproduct rather
than themselves selling the crab to processors, the crew members
were not compensated based on the price brought by their catch.
Instead, they were compensated based on an artificial rate of $.50
per pound.  This figure was well below the market rate, but the All
Alaskan crew share amounted to nearly 100% of the total crab
captured; by contrast, a typical crew in Alaska waters might be
paid based on the price of the crab sold by the boat, but be paid
for only 35-40% of the total catch.  In addition, All Alaskan did
not take the usual deductions out of the crew members' earnings for
fuel, bait, and loss of gear.
          Before the venture began, All Alaskan's crab processing
vessel was destroyed in a fire; thereafter, some of All Alaskan's
fishing vessels had to spend time hauling the catch the long
distance to the replacement processing vessel instead of fishing. 
As a result, All Alaskan added another unusual aspect to their crew
contract:  Crew compensation was based on the crab delivered by all
ten boats in the fleet collectively, rather than on the deliveries
of each individual boat.  Hence, each person's compensation was
based on the pooled catch of the entire fleet.
          The resulting payment formula was somewhat complicated.
As later expressed in a contract spelling out its terms, it paid
crew members 
          [gross weight of processed crab for the
season] divided by 0.64 (the recovery rate) to arrive at the
estimated raw weight of fish caught by the fleet during the season. 
This gross poundage will be multiplied by $0.50 per pound for all
species of crab caught, then divided by the number of boats in the
fleet, then multiplied by the crewmember's crewshare percentage of
__%, to arrive at a full season share aboard the vessel at the
crewmember's percentage.  This number will be divided by the number
of days in the season, to arrive at a daily rate at the
crewmember's percentage.  The crewmember's pay will then be
calculated based on the number of days aboard the vessel, minus
$20.00 per day for groceries.

This formula compensated the crew at a sufficiently competitive
rate that some crew members -- including the plaintiff in this case
-- returned to the fleet for additional work under the same terms.
          Although All Alaskan explained its payment formula
verbally and through informational meetings with some contractors,
it apparently failed in many cases to ensure that individual
contractors understood the formula prior to embarking on the
venture.  At least four lawsuits, including this one, have arisen
based on the contracts used in 1994 and early 1995. [Fn. 1]  In
some of the suits, courts concluded that All Alaskan had never
explained the payment system to particular plaintiffs.  In this
case, the superior court concluded that All Alaskan did at the
start of the fishing season "make more than reasonable efforts to
describe the specific terms" by holding meetings in which the
payment formula was explained and written pay projections based on
the $.50 price were provided to the crew.  However, Krossa
apparently did not attend a meeting because he hired on in Juneau
later in the season.  The contract that he signed stated simply:
          I understand that my share to be paid is 9% of
the gross receipts after local taxes which may apply, if any.  In
addition, groceries will be charged at $20.00 per day.[ [Fn. 2]]

          Although this language is apparently similar to language
typically used in Alaska crab fishing contracts, it did not refer
to a typical financial arrangement.  As the Court of Appeals for
the Ninth Circuit explained in an unpublished decision considering
the same All Alaskan contract:
          In the Alaska fishery, the boat owns the crab
and sells it.  As the judge found, "gross receipts" means the
number of pounds caught and sold multiplied by the price per pound,
which is to say, what the boat gets paid.  That trade custom could
not apply in this case, because the boat did not own the crab. Nor
was the crab delivered to processing boats that paid for it, as was
usual in the trade. Instead, the engagement with the Russians (the
terms of which the fishermen did not know in any detail)
established that the Russians would own the crab from the time it
was caught, and the boat would not sell the crab at all.  On behalf
of the Russian owners, the boats delivered the crab to processing
vessels for processing and delivery to the Japanese customers. 
There were no fish tickets or invoices to show how much crab each
vessel delivered, and all ten boats' catches were added together
and divided by ten, to get a figure for each boat, unlike the usual
fishing voyage.  Thus there were no "gross receipts" in the
customary sense that the words were used in the trade.[ [Fn. 3]]

As the Ninth Circuit's opinion also pointed out, applying the
conventional definition of gross receipts as "what the boat is paid
for the fish it delivers," gross receipts in this venture were
zero. [Fn. 4]
          John Krossa joined the venture as a deckhand on the F/V
SHELIKOF in Juneau in April of 1995.  He spoke to an All Alaskan
representative who told him that he would receive a 9% crew share,
but apparently did not explain the compensation system beyond that. 
He flew to Russia to join the ship, and signed his contract there. 
The superior court found that Krossa's employment began at this
time, and that at this time he "may have believed he would make 9%
of some total value of the crab" instead of a value based on the
$.50 figure. 
          The SHELIKOF spent about a week in the crabbing grounds
and then delivered the crab to an All Alaskan processing vessel.
The superior court determined that during this initial period of
about a week, the parties still "had different impressions of how
to calculate the crew shares."  But it found that after the first
crab delivery, Krossa came to understand the terms offered by All
Alaskan.  The superior court found non-credible Krossa's testimony
that he asked the captain about the pay rate and was not told.  It
found that Krossa was "at best being willfully ignorant of reality"
if he did not know other members' crew shares and realize that his
assumption that he would earn over $400,000 for the three-month job
was unreasonable.  Krossa eventually received written explanation
of All Alaskan's pay arrangement from the captain.
          The superior court also found that after the first week
of fishing, when Krossa learned of All Alaskan's intended payment
terms, he accepted them.  At that point, it held, a meeting of
minds was achieved and a valid contract was formed.  The court
noted that Krossa later demonstrated his willingness to work under
All Alaskan's contractual terms by coming back for a second term
under the same contract.  Krossa later sought to return for a third
contractual term with All Alaskan.
          The superior court further found that All Alaskan's terms
were reasonable -- as evidenced by the fact that Krossa earned more
money than in any previous season and returned for more work under
the same payment formula.  But it found that Krossa's claimed
initial expectation that he would earn over $400,000 for three
months' work was not reasonable.  The court noted that if Krossa's
initial interpretation of the contract were correct then an
inordinately high percentage -- at least 81% - of revenues from the
venture would go to crew payment alone.
          The superior court also concluded that Krossa had not
presented sufficient evidence to justify additional contract
damages for the week-long period between when Krossa signed the
contract and when he came to understand All Alaskan's terms. 
Although Krossa attempted to use the market price of crab in Japan
and Alaska as a basis for calculation, the court found these
figures unrealistic as a basis for determining what price was
received for the crab caught in the Russian venture.  Instead, the
superior court concluded that no payment in excess of the sum
already paid by All Alaskan under its contract terms was due to
Krossa for the first week of fishing.
III. STANDARD OF REVIEW
          We review questions of law de novo and apply the de novo
standard of review to a trial court's interpretation of a written
contract if that interpretation was based exclusively on
documentary evidence. [Fn. 5]  We apply the clearly erroneous
standard when the trial court has relied on extrinsic testimonial
evidence in interpreting a contract. [Fn. 6]  In this case, the
trial court's conclusions regarding what the parties intended and
what intentions or assumptions were reasonable under the
circumstances depended in large part on witness testimony.  We
review the trial court's factual findings for clear error and do
not "weigh conflicting evidence or assess the credibility of
witnesses; these are functions peculiarly within the province of
the trial court." [Fn. 7]
IV.  DISCUSSION
     A.   Alaska Principles of Contract Interpretation, and Not
Federal Maritime Law, Govern this Case.

          The Constitution vests admiralty jurisdiction in the
federal courts. [Fn. 8]  However, we adjudicate admiralty claims
under the "saving to suitors" clause of 28 U.S.C. sec. 1333 [Fn. 9]
and apply state law unless that law "works material prejudice to
the characteristic features of the general maritime law or
interferes with the proper harmony and uniformity of that law in
its international and interstate relations." [Fn. 10]  Because
application of Alaska's contract law in this case does not
interfere with federal maritime law, Alaska law governs this case. 
Although Krossa cites federal cases for several principles which he
claims should apply, he gives no indication that these cases
represent essential features of federal law which should preempt
Alaska's principles of contract interpretation, nor is it clear
that the cases even support his position. [Fn. 11]
     B.   The Written Agreement Signed by Krossa Did Not Constitute
a Valid Contract.
     
          The superior court correctly concluded that the agreement
signed by Krossa prior to embarking on the SHELIKOF, which referred
to compensation based on "gross receipts," was not a valid
contract.  When a phrase in an agreement is differently understood
by the contracting parties and the disputed phrase is sufficiently
ambiguous to reasonably support the different understandings, no
contract exists. [Fn. 12]  The superior court made a factual
finding that between the time when Krossa signed the contract and
the time of the first crab delivery about a week later, the parties
had different understandings of the term "gross receipts."  Krossa
does not dispute this finding.  Therefore, if the term "gross
receipts" as used in the written agreement had no plain meaning and
was instead ambiguous, we must conclude that no contract existed
during that time.  "A contract is ambiguous only if, taken as a
whole, it is reasonably subject to differing interpretations." [Fn.
13]
          1.   The term "gross receipts" is ambiguous.
          The parties agree that gross receipts should be defined
as weight times price, but disagree about what price should be
inserted into this formula.  Krossa argues that market price must
be used in calculating gross receipts.  All Alaskan maintains that
while gross receipts may typically be calculated based on the price
actually received by boats selling crab, no such figure exists in
this case because the boats never owned or sold the crab. [Fn. 14] 
Therefore, it argues, "gross receipts" should be defined by the
artificial figure of $.50 per pound which All Alaskan intended to
offer.
          In the context of the Dalmoreproduct/All Alaskan business
venture, the term "gross receipts" is ambiguous.  Black's Law
Dictionary defines gross receipts as "the total amount of money or
the value of other considerations received from selling property or
from performing services." [Fn. 15]  Following this definition, the
SHELIKOF's "gross receipts" were zero, since the vessel never owned
or sold any crab.  All Alaskan itself received payment for services
that it provided to Dalmoreproduct, but it would be absurd to
interpret the contract as promising a single crew member 9% of the
company's gross receipts from the entire venture.  Neither of these
possible literal interpretations of the term "gross receipts" is
plausible; therefore, the term is ambiguous. [Fn. 16]
          Because the plain language of the written agreement was
ambiguous and the parties in fact understood the agreement
differently, the superior court correctly concluded that no valid
contract existed during the first week that Krossa worked on the
SHELIKOF.
          2.   Collateral estoppel
          Krossa argues that the meaning of "gross receipts" in
this case was established in other cases arising from the same All
Alaskan contract.  He claims that All Alaskan is collaterally
estopped from relitigating the meaning of the term.  Krossa did not
squarely raise this claim to the superior court, and it is
therefore arguably waived. [Fn. 17]  However, neither of the cases
cited by Krossa supports collateral estoppel in any event.  We have
explained that collateral estoppel bars the relitigation of an
issue when 
          (1) the party against whom the preclusion is
employed was a party to or in privity with a party to the first
action; (2) the issue precluded from relitigation is identical to
the issue decided in the first action; (3) the issue was resolved
by a final judgment on the merits; and (4) the determination of the
issue was essential to the final judgment.[ [Fn. 18]]

          Krossa first claims that the meaning of the term "gross
receipts" in the contract was settled as a matter of law by an
Alaska superior court's order granting partial summary judgment in
Domaschk v. All Alaskan Seafoods, Inc. [Fn. 19]  But the issue
decided in that case is not identical to the one posed by this case
because the Domaschk court's order depended on application of a
federal law, 46 U.S.C. sec. 10601, which is not applicable here.
[Fn. 20]  Moreover, the order granting partial summary judgment was
not
a "final judgment" for purposes of collateral estoppel. [Fn. 21]
          Krossa also claims that Narte v. All Alaskan Seafoods, a
federal district court case construing the same All Alaskan
contract, determined the meaning of "gross receipts." [Fn. 22]  But
that case determined only the meaning of the term as understood by
the particular parties in that case; the Narte court emphasized
that its findings were intended to apply only to the plaintiffs in
that case and not to any other parties or potential claims.  Narte
did not address the reasonable expectations of the parties in this
case, and therefore has no collateral estoppel effect.
     C.   The Parties Formed a Valid Contract When Krossa Accepted
the Terms Offered by All Alaska.

          1.   Krossa ratified All Alaskan's terms.

          The superior court found that Krossa learned of All
Alaskan's payment formula after about one week on the SHELIKOF, and
that at that time "he accepted the meaning intended by All
Alaskan," thereby forming a contract.
          Because we "give effect to the parties' reasonable
expectations" [Fn. 23] in interpreting a contract, and because the
superior court found that after the first week the parties both
reasonably expected that Krossa would be paid based on All
Alaskan's payment formula, we affirm the superior court's holding
regarding contract formation.
          We have explained that although a party may avoid a
contract based on mistake or misrepresentation regarding the
contract's meaning, the party loses power to avoid the contract 
          if, after he knows or has reason to know of
the mistake or non-fraudulent misrepresentation . . . he manifests
to the other party his intention to affirm it or acts with respect
to anything he has received in a manner inconsistent with
disaffirmance, or he does not within a reasonable time manifest to
the other party his intention to avoid it.[ [Fn. 24]] 

          Krossa does not challenge the evidentiary sufficiency of
the superior court's findings that he accepted All Alaskan's terms
and that his acceptance was "further confirmed by his asking to
return immediately for another contract that he signed in August,
1995, which included explicitly all the terms [intended by All
Alaskan in the first contract]."  Nor does he offer evidence that
he manifested intent to avoid the contract at any point during the
term of his first contract.  Therefore, the trial court was correct
in its conclusion that Krossa ratified the contract by his actions.
          2.   Krossa does not have a valid duress claim.
          Krossa argues that even if he ratified the contract, that
ratification was invalid because he acted under duress.
          Krossa waived this argument by not raising it below.  We
will not consider on appeal new arguments which (1) "depend on new
or controverted facts," (2) are not closely related to the
appellant's arguments at trial, and (3) could not have been gleaned
from the pleadings, unless the new issue raised establishes plain
error. [Fn. 25]  Krossa's duress claim depends on factual claims
regarding his financial situation and the feasibility of leaving
the SHELIKOF when he learned of All Alaskan's payment terms; the
superior court reached no factual findings on this issue because
Krossa made no duress claim below.  A duress argument could not
have been gleaned from Krossa's argument below, since at the outset
of this case he sought enforcement of his interpretation of the
contract.  In Hill v. Ames, we considered a similar waiver issue: 
One party brought suit to enforce an alleged oral contract, lost
that claim, and on appeal argued that the lower court erred by not
granting equitable quantum meruit damages. [Fn. 26]  We held:
          While there is evidence in the record which
might be relevant to possible relief on theories of quantum meruit
or constructive trust, appellee did not have an opportunity to put
in countervailing evidence on those theories, and the court was not
apprised that those questions were to be litigated.  No motion for
leave to amend the complaint was made in the superior court. 
Therefore, we will not consider these questions on appeal.[ [Fn.
27]]

Following this precedent, we will not address Krossa's new claim of
duress in this appeal. [Fn. 28]
     D.   Krossa Has Not Presented a Valid Claim for Damages for
the Week During Which He Worked Without a Contract.

          During his first week as a SHELIKOF crew member, Krossa
worked without a valid contract.  He is entitled to reasonable
payment for this period.  However, because he has already received
reasonable payment, an award of damages is not appropriate. 
          When parties to a contract dispute do not have a valid
contract, plaintiffs may generally recover in quantum meruit for
services rendered. [Fn. 29]  The measure of recovery in quantum
meruit is the reasonable value of the services rendered to the
defendant. [Fn. 30] In this case, the superior court determined
that All Alaskan's actual payment to Krossa based on All Alaskan's
payment formula -- which amounted to "more than [Krossa] had ever
earned previously in a fishing season" -- was reasonable.  Krossa
has already been paid at this reasonable rate for his work during
the first week, as well as subsequent weeks after he ratified All
Alaskan's terms.  He therefore has no valid claim for additional
damages. [Fn. 31]
V.   CONCLUSION
          We AFFIRM the superior court's conclusion that no valid
contract existed until one week after Krossa began working, and
that the parties thereafter created a contract by agreeing to the
terms offered by All Alaskan.  Because Krossa has already been
adequately compensated for his work during the period before that
contract was created, the superior court correctly denied damages.


                            FOOTNOTES


Footnote 1:

     See Narte v. All Alaskan Seafoods, Inc. (Narte II), 2000 WL
237923 (9th Cir., March 1, 2000) (unpublished), aff'g Narte v. All
Alaskan Seafoods, Inc. (Narte I), No. C95-794WD (W.D. Wash., July
31, 1997); Paul v. All Alaskan Seafoods, Inc., 2001 WL 569119
(Wash. App., May 29, 2001); Domaschk v. All Alaskan Seafoods, Inc.,
No. 3AN-95-7190 Ci. (Alaska Super., May 27, 1997).


Footnote 2:

     The contract produced for trial was not Krossa's but that of
another crew member.  The parties agreed, however, that the terms
were the same as those of Krossa's contract.


Footnote 3:

     Narte II, at *1.


Footnote 4:

     Id. at *3.


Footnote 5:

     See Klosterman v. Hickel Inv. Co., 821 P.2d 118, 122 (Alaska
1991).


Footnote 6:

     See id.


Footnote 7:

     Ursin Seafoods, Inc. v. Keener Packing Co., 741 P.2d 1175,
1178 (Alaska 1987).


Footnote 8:

     See U.S. Const. art. III, sec. 2, cl. 1. 


Footnote 9:

     28 U.S.C. sec. 1333 provides in part that 

          [t]he 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 other remedies to
which they are otherwise entitled.


Footnote 10:

     Hughes v. Foster Wheeler Co., 932 P.2d 784, 787 (Alaska 1997)
(quoting American Dredging Co. v. Miller, 510 U.S. 443, 446-47
(1994)).

          Although the contract in this case included a choice of
law clause calling for application of Alaska or Washington law, a
choice of law clause may not defeat federal preemption and federal
law.  See Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 227
(1986) (noting that federal maritime law displaces state common law
remedies and that parties may not elect which law will govern).


Footnote 11:

     Krossa claims that under Grivas v. Alianza Compania Armadora,
S.A., 276 F.2d 822 (2d Cir. 1960), he is owed damages equal to what
he expected to be paid under the contract -- over $400,000. 
However, that case does not support such a broad rule.  He also
argues that under federal law "articles signed after the port of
departure are not binding upon the seaman."  However, the cases he
cites stand for no more then the general principle that
"[a]dmiralty looks with disfavor on a contract of employment
entered into while the ship is at sea."  Mateo v. M/S KISO, 805 F.
Supp. 761, 776 (N.D. Cal. 1991) (quoting I.M. Norris, The Law of
Seamen sec. 6.4, at 179 (4th ed. 1985)); see The Theodore Perry, 23
F.
Cas. 914 (E.D. Mich. 1878).  Finally, Krossa suggests that parol
evidence may be applied as against shipowners but not seamen.
However, the cases he cites refer only to common law parol evidence
rules and not to a special rule governing maritime cases.  See id.;
Bender v. Waterman S.S. Co., 69 F. Supp. 15, 19-20 (E.D. Pa. 1946).


Footnote 12:

     See Salmine v. Knagin, 645 P.2d 148, 150-51 (Alaska 1982)
(material misunderstanding about meaning of a contract term can
prevent formation of contract); 2 Richard A. Lord, Williston on
Contracts sec. 6:58, at 700-01 (4th ed. 1991) (same); see also id.at
695-97 ("As a general principle, a party to a contract is bound by
his express language, and cannot contradict the meaning of his
words by denying that he intended that meaning.").


Footnote 13:

     Williams v. Crawford, 982 P.2d 250, 253 (Alaska 1999).


Footnote 14:

     Krossa claims that All Alaskan conceded below that Krossa's
definition of gross receipts is correct.  But All Alaskan's
definition below was the same definition it now advances before us.

          Krossa further argues that because the contract contained
an integration clause, the parol evidence rule precludes
consideration of extrinsic evidence in construing its meaning.  But
the parol evidence rule applies only after preliminary
determination of what the contract means.  See Alaska Diversified
Contractors, Inc. v. Lower Kuskokwim Sch. Dist., 778 P.2d 581, 583
(Alaska 1989).  And "[e]xtrinsic evidence may always be received on
the question of meaning."  Id. at 584.  We have explained:

          The parol evidence rule does not apply "where
a contract has been formed as a result of misrepresentation or
mutual mistake."  [Where a party offered parol evidence] to show
that the parties did not intend that the [contract] had the meaning
the [other party] ascribed to it, not to vary or contradict the
terms of the written contract . . . [t]his was a permissible use of
extrinsic evidence to prove mutual mistake.

Philbin v. Matanuska-Susitna Borough, 991 P.2d 1263, 1270 (Alaska
1999) (footnote omitted).


Footnote 15:

     Black's Law Dictionary 633 (5th ed. 1979).


Footnote 16:

     Krossa's brief to this court could be interpreted as arguing
that he relied on an established conventional meaning of the term
"gross receipts."  However, because Krossa did not squarely raise
this point before the superior court, that court issued no factual
finding as to whether "gross receipts" has a conventional meaning. 
Even where conventional meaning is established, however, we have
previously declined to rely on that meaning in interpreting a
contract where it was not clear that both parties intended
conventional meaning to apply.  See Little Susitna Constr. Co. v.
Soil Processing, Inc., 944 P.2d 20, 22-25 (Alaska 1997) (rejecting
claim that a particular customary definition of the term "turnkey"
should be read into a contract and instead upholding jury
instruction that meaning of term depended on parties' reasonable
understandings and intentions).


Footnote 17:

     See Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280
(Alaska 1985) (issue not raised in trial court ordinarily not
reviewable on appeal).  Krossa did argue below that Domaschk and
Narte established the meaning of the term "gross receipts" in this
contract, but did not frame his argument in terms of collateral
estoppel or address the legal prerequisites for application of that
doctrine.


Footnote 18:

     Alaska Contracting & Consulting, Inc. v. Alaska Dep't of
Labor, 8 P.3d 340, 344-45 (Alaska 2000) (quoting Renwick v. State,
Bd. of Marine Pilots, 971 P.2d 631, 634 (Alaska 1999)).


Footnote 19:

     No. 3AN-95-7190 Ci. (Alaska Super., May 27, 1997).


Footnote 20:

     See id.  46 U.S.C. sec. 10601 requires written contracts for
fishing vessels on voyages from United States ports.  See U.S.C.
sec.
10601(a)(2) (2000).  It is not applicable in this case because the
SHELIKOF was on a voyage from a Russian port.


Footnote 21:

     See Alaska Civil Rule 54(b) ("any order or other form of
decision, however designated, which adjudicates fewer than all of
the claims [in a case]. . . is subject to revision at any time
before the entry of judgment adjudicating all the claims"); Briggs
v. State, Dep't of Pub. Safety, 732 P.2d 1078, 1082 (Alaska 1987)
(collateral estoppel arises only from judgment that is
"sufficiently firm to be accorded conclusive effect" and that is
subject to appeal).


Footnote 22:

     No. C95-794WD (W.D. Wash., July 31, 1997), affirmed by Narte
v. All Alaskan Seafoods, Inc. (Narte II), 2000 WL 237923 (9th Cir.,
March 1, 2000).


Footnote 23:

     Williams v. Crawford, 982 P.2d 250, 253 (Alaska 1999).


Footnote 24:

     Thorstenson v. ARCO Alaska, Inc., 780 P.2d 371, 374 (Alaska
1989) (internal quotations and citations omitted).


Footnote 25:

     Arnett v. Baskous, 856 P.2d 790, 791 n.1 (Alaska 1993).


Footnote 26:

     606 P.2d 388 (Alaska 1980).


Footnote 27:

     Id. at 390.


Footnote 28:

     We note that even if Krossa's duress claim were not waived, it
would probably fail.  Duress exists where "(1) one party
involuntarily accepted the terms of another, (2) circumstances
permitted no other alternative, and (3) such circumstances were the
result of coercive acts of the other party."  Totem Marine Tug &
Barge, Inc. v. Alyeska Pipeline Serv. Co., 584 P.2d 15, 21 (Alaska
1978).  Such "coercive acts" will only support a duress claim if
they were "wrongful in a moral sense."  Helstrom v. North Slope
Borough, 797 P.2d 1192, 1198 (Alaska 1990).  In this case, Krossa
did not claim and the superior court did not find that All Alaskan
acted in bad faith or intended to trick or coerce Krossa into
accepting the terms of the contract.


Footnote 29:

     See, e.g., Truly v. Austin, 744 S.W.2d 934, 936 (Tex. 1988);
Ramsey v. Ellis, 484 N.W.2d 331, 333-34 (Wis. 1992).


Footnote 30:

     See Fairbanks North Star Borough v. Tundra Tours, Inc., 719
P.2d 1020, 1029 n.15 (Alaska 1986) (quoting Peavey v. Pellandini,
551 P.2d 610, 616 (Idaho 1976)).


Footnote 31:

     Krossa offered evidence of the price of crab in the Alaskan
and Japanese markets to support his damages claim.  To the extent
that this evidence was intended to support a claim for reasonable
compensation, the superior court did not err in finding it too
speculative to support a damages calculation.

          Krossa also challenges the superior court's alleged
reliance on All Alaskan's expert to determine market price.  But
the superior court did not determine or rely on a market price.