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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Nunez v. American Seafoods (7/12/2002) sp-5593

Nunez v. American Seafoods (7/12/2002) sp-5593

     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,


MIGUEL NUNEZ,                 )
                              )    Supreme Court No. S-9875
               Appellant,          )
                              )    Superior Court No.
          v.                  )    3DI-99-141 CI
               Appellee.       )          [No. 5593  -  July  12,

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Dillingham, Fred Torrisi, Judge.

          Appearances:  Lanning M. Trueb, Beard  Stacey
          Trueb Jacobsen & Stehle, LLP, Anchorage,  for
          Appellant.  Michael A. Barcott and Stephen C.
          Smith,  Holmes  Weddle  &  Barcott,  Seattle,
          Washington, for Appellee.

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

          BRYNER, Justice.


          After  injuring  himself while working aboard  the  F/T

Ocean  Rover  in  Dutch  Harbor, seaman  Miguel  Nunez  sued  his

employer,  American  Seafoods, in the Alaska  Superior  Court  at

Dillingham.   He  appeals that courts order dismissing  his  case

based  on a contractual forum selection clause that required  him

to  sue  in  United States District Court in Seattle, Washington.

We reverse, holding that the employment contracts forum selection

clause  is invalid because it violates Nunezs right to sue  under

the Jones Act in any eligible forum.


          Miguel Nunez was a seaman employed by American Seafoods

on the fishing tender F/T Ocean Rover when he was injured in port

at Dutch Harbor in 1999.  Nunez was getting the gang way out when

a  deck  rail of the Ocean Rover collapsed and Nunez fell  twenty

feet to the dock below.  The fall severely injured Nunez.

          American Seafoods had employed Nunez on various fishing

vessels beginning in 1996.  Nunez signed a fishing agreement with

American  Seafoods for his work on the Ocean Rover  on  July  20,

1999.  The agreement included a forum selection clause specifying

that  any  legal  action . . . involving  this  contract  or  any

incident  or  injury occurring aboard the Vessel .  .  .  may  be

brought  only  in  the  Federal District Court  for  the  Western

District of Washington at Seattle.

          Nunez  nonetheless filed suit against American Seafoods

in  superior court at Dillingham, alleging admiralty jurisdiction

under  the federal saving to suitors clause1 and the Jones  Act.2

American  Seafoods moved to dismiss based on the forum  selection

clause.   Superior Court Judge Fred Torrisi heard oral  arguments

in  Dillingham,  upheld the forum clause,  and  granted  American

Seafoods  motion to dismiss without prejudice to  refile  in  the

U.S. District Court in Seattle.  Nunez appeals.


     A.   Standard of Review

          This  court  reviews a grant of a motion to dismiss  de

novo.3   Whether [a] forum-selection clause is enforceable  is  a

question of law to which we apply our independent judgment.4   We

also  review  de novo whether a fishing agreement  complies  with

relevant federal admiralty law.5

     B.   Discussion

          Nunez  argues that the forum selection clause  is  void

because  it violates federal law.  He argues that the  Jones  Act

expressly  incorporates the provisions of the  Federal  Employers

          Liability Act (FELA) and that in Boyd v. Grand Trunk Western

Railroad   Co.,6  the  United  States  Supreme  Court   expressly

interpreted  section 5 of the FELA to declare void  any  contract

provision within the Acts coverage that limits an employees right

to  bring suit in any eligible forum.7  American Seafoods, citing

Carnival  Cruise Lines, Inc. v. Shute8 and M/S Bremen  v.  Zapata

Off-Shore Co.,9 counters that the Supreme Court has more recently

declared  maritime  forum selection clauses to  be  presumptively

valid;  according  to  American Seafoods,  Nunez  has  failed  to

overcome this presumption.10

          We   find  Nunezs  arguments  to  be  more  persuasive.

Carnival Cruise Lines and M/S Bremen undeniably recognize that  a

strong  presumption  of  validity  attaches  to  forum  selection

clauses  under  general  maritime law.11   But  Nunez  filed  his

complaint  under the saving to suitors clause and the Jones  Act,

not  under  general maritime law.         As  we  have  noted  in

previous  cases,  the saving to suitors clause12 generally  means

that  a suitor asserting an in personam admiralty claim may elect

to  sue  in  a  common law state court through an ordinary  civil

action.   In such actions, the state courts must apply  the  same

substantive law as would be applied had the suit been  instituted

in admiralty in a federal court.13

          In  the  present  case, the Jones  Act  prescribes  the

substantive maritime law by providing a right of action  allowing

injured  sailors  to sue their employers for negligence.14    The

substantive rights conferred by the Jones Act are not the same as

those  conferred by general maritime law: in enacting  the  Jones

Act,  Congress 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.15

Hence,  [t]he substantive rules of maritime law, as  modified  by

the Jones Act, apply[.]16

          The  Jones Act accomplishes its goal of giving  injured

seamen a right of action against their employers by incorporating

the  rights  conferred to railway workers under  the  FELA;17  in

relevant part, the Jones Act provides:

          Any  seaman who shall suffer personal  injury
          in  the course of his employment may  .  .  .
          maintain an action for damages at law .  .  .
          and in such action all statutes of the United
          States  modifying or extending the common-law
          right  or remedy in cases of personal  injury
          to railway workers shall apply . . . .[18]
As we recognized in Brown v. State,

               The [Jones Acts] language concerning the
          rights and remedies of railway employees  has
          the   effect  of  extending  to  sailors  the
          provisions  of the [FELA].  Most importantly,
          sailors have the right to sue shipowners  for
          damages  for  injury  or death  resulting  in
          whole  or in part from the negligence of  any
          of the officers, agents, or employees of such
          [shipowner],  or by reason of any  defect  or
          insufficiency, due to its negligence, in  its
          . . . equipment.[19]

          The Jones Act thus effectively places an injured seaman

like Nunez in the shoes of an injured FELA railway worker:

          [The Jones Act] expressly provides for seamen
          the  cause  of  action  and consequently  the
          entire   judicially  developed  doctrine   of
          liability  granted to railroad workers by the
          FELA.   The  deceased seaman here  was  in  a
          position perfectly analogous to that  of  the
          railroad workers [in a line of cases allowing
          recovery without a showing of negligence] and
          the  principles governing those cases clearly
          should apply here.[20]

And  as  we  further  recognized in  Brown,  the  Supreme  Courts

interpretation  of section 5 of the FELA in Boyd v.  Grand  Trunk

Western  strictly  curtails an employers right  to  contractually

limit a workers substantive rights:

               Section  5  of FELA closely  limits  the
          ability  of an employer to restrict  its  own
          liability:   Any contract, rule,  regulation,
          or  device whatsoever, the purpose or  intent
          of  which  shall  be  to  enable  any  common
          carrier  to exempt itself from any  liability
               created by this chapter, shall to that extent
          be  void. . . .  The Supreme Court has  found
          that  Congress  wanted  5 to  have  the  full
          effect  that  its  comprehensive  phraseology
          The  specific issue considered in Boyd was the validity

of  a  contractual forum selection agreement limiting an  injured

railroad workers choice of forum under the FELA.22  Section 6  of

the FELA gives injured railway workers the choice of filing their

claims  in  a  state or federal forum.23  Relying on  section  5s

categorical  prohibition  of contracts exempting  employers  from

FELA  liability,24 Boyd invalidated the disputed forum  selection

agreement,  holding  that a workers right [under  section  6]  to

bring  the  suit in any eligible forum is a right  of  sufficient

substantiality to be included within the Congressional mandate of

5 and so could not be restricted by a contractual provision.25

          Here,  the  saving  to  suitors clause  gives  Nunez  a

comparable  right  to select a state or federal  forum.   Because

Nunez  stands  in a position perfectly analogous to  that  of  [a

railroad worker under the FELA],26 the scope of this right to file

suit  in his forum of choice must be gauged under section 5, just

as  in Boyd.  And Boyd dictates the conclusion that section 5  of

the FELA requires that Nunezs right to bring suit in any eligible

forum  be  deemed substantive and that any contractual  provision

purporting to limit it be deemed void.

          Contrary  to  American  Seafoods position,  nothing  in

Carnival  or  M/S Bremen undermines Boyd.  As already  indicated,

Carnival  and  M/S Bremen establish the presumptive  validity  of

forum selection clauses under general maritime law, whereas Nunez

brings  his  action under maritime law as modified by  the  Jones

Act,  which  incorporates FELA.  Indeed, M/S  Bremen  approvingly

cites  Boyd  when  discussing an important  caveat  to  its  rule

favoring  enforcement of forum selection clauses:  A  contractual

choice-of-forum   clause   should  be   held   unenforceable   if

enforcement would contravene a strong public policy of the  forum

in  which  suit  is brought, whether declared by  statute  or  by

          judicial decision.  See, e.g., [Boyd].27  If anything, then, M/S

Bremen  reconfirms the vitality of Boyds declaration that section

5 of the FELA renders forum selection clauses unenforceable.

          Nor  does  American Seafoods cite any other  persuasive

authority  or reason to establish that Boyd does not apply  to  a

Jones   Act   claim.28   American  Seafoods  relies  heavily   on

Marinechance  Shipping, Ltd. v. Sebastian29 and  its  progeny  to

fortify its position.30  But these cases are inapposite, for they

involve  foreign  sailors who were employed by foreign  shippers,

served  on  foreign  flagged vessels,  and  were  employed  under

contracts  that called for resolution of their legal disputes  in

other  nations; thus, these cases address problems of  uniformity

and comity that are unique to their international settings and do

not purport to apply  or even to meaningfully consider  the Jones

Act  or  the continued vitality of Boyd.  Here, by contrast,  the

facts   of   Nunezs  case  lack  any  significant   international

dimension, and the Jones Acts incorporation of the FELA  squarely

controls the cases outcome.31

          The  superior  courts decision to enforce Nunezs  forum

selection clause in the present case rested largely on the courts

perception that our recent decision in Bodzai v. Fjord,32 tacitly

found  Boyd inapplicable to Jones Act cases by failing to mention

that decision.  But Bodzais silence on the point does not support

this conclusion.33

          In   Brown  v.  State,  we  recognized  the  continuing

vitality of Boyd in the Jones Act context and held that [s]ection

5  of  FELA closely limits the ability of an employer to restrict

its own [Jones Act] liability[.]34  Nothing presented by American

Seafoods has persuaded us to alter this decision.


          The superior courts order of dismissal is REVERSED.

     1    28 U.S.C.  1333 (1988).

     2    46 U.S.C. App.  688 (1988).

     3     Hutton  v. Realty Executives, Inc., 14 P.3d  977,  979
(Alaska 2000).

     4    Bodzai v. Arctic Fjord, Inc., 990 P.2d 616, 618 (Alaska

     5     Bjornsson v. U.S. Dominator, Inc., 863 P.2d  235,  237
(Alaska 1993).

     6    338 U.S. 263 (1949).

     7    Id. at 265.

     8    499 U.S. 585 (1991).

     9    407 U.S. 1 (1972).

     10     In  dismissing Nunezs complaint, the  superior  court
accepted American Seafoods position.

     11    Carnival Cruise Lines, 499 U.S. at 593-94; M/S Bremen,
407 U.S. at 10.

     12     The  saving to suitors clause is contained within  28
U.S.C.  1333, which states, 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.
     13     Brown  v.  State, 816 P.2d 1368, 1370  (Alaska  1991)
(quoting Shannon v. City of Anchorage, 478 P.2d 815, 818  (Alaska
1970)) (footnotes omitted).

     14    Brown, 816 P.2d at 1372 (citing 46 U.S.C. App.  688(a)

     15     Grant  Gilmore & Charles L. Black, Jr.,  The  Law  of
Admiralty  325  (2d ed. 1975) (footnote omitted)  (citing,  among
other cases, The Osceola, 189 U.S. 158 (1903)).

     16     Brown, 816 P.2d at 1371 (citing Shannon, 478 P.2d  at

     17    45 U.S.C.  51-60 (1988).

     18    46 U.S.C. App.  688(a).

     19     Brown, 816 P.2d at 1372 (internal citations  omitted)
(quoting 45 U.S.C.  51 (1988)).

     20     Kernan v. Am. Dredging Co., 355 U.S. 426, 439  (1958)
(emphasis added).

     21     Brown,  816  P.2d at 1373 (quoting, respectively,  45
U.S.C.   55 (1988) and Boyd v. Grand Trunk W. R.R. Co., 338  U.S.
263, 265 (1949)).

     22    Boyd, 338 U.S. at 263.

     23    Id. at 265; 45 U.S.C.  56.

     24    45 U.S.C.  55.

     25    Boyd, 338 U.S. at 265.

     26    Kernan, 355 U.S. at 439.

     27    407 U.S. at 15.  This passage from M/S Bremen was also
quoted  approvingly  by  this court in  Volkswagenwerk,  A.G.  v.
Klippen, GmbH, 611 P.2d 498, 504 (Alaska 1980).

     28     American Seafoods does attempt to distinguish Boyd on
its  facts  by  noting  that  it  involved  a  post-injury  forum
selection contract.  But nothing in Boyd indicates that the Court
gave any weight to the timing of the contractual provision.   And
in any event, our case law suggests that a pre-injury contractual
compromise  of  Jones  Act rights should be deemed  presumptively
more  questionable,  not less questionable,  than  a  post-injury
compromise.  See Brown, 816 P.2d at 1376.

     29    143 F.3d 216 (5th Cir. 1998).

     30     See, e.g., Afram Carriers, Inc. v. Moeykens, 145 F.3d
298 (5th Cir. 1998); Sabocuhan v. Geco-Prakla, 78 F. Supp. 2d 603
(S.D.  Texas  1999);  Valle v. Chios Venture  Shipping,  1999  WL
155942 (E.D. La., March 17, 1999); Lajano v. KS Bandak, 705  S.2d
158 (La. 1997).

     31     American  Seafoods also relies on the  United  States
District  Courts  decision in Willard v. The Fishing  Company  of
Alaska,  1995  A.M.C.  1358 (D. Alaska).  But  Willard,  too,  is
inapposite.  There, several injured Jones Act seamen employed  by
a  Seattle based company filed suit in the United States District
Court  in Anchorage; their employer relied on contractual choice-
of-forum   clauses  to  transfer  venue  to  federal   court   in
Washington.  Because the seamen opted to bring their suits  in  a
federal forum rather than in a state forum, the district court in
Willard  correctly recognized that the cases presented a question
of  change  of  venue  rather than a change  of  forum  and  were
therefore  governed by the Jones Acts internal  venue  provisions
as  opposed  to  the  forum provision of the  saving  to  suitors
clause.   Id.  at 1359-60.  As the district court also  correctly
observed  in Willard, the Supreme Court has construed  the  Jones
Acts  venue clause to have no substantive significance.   Id.  at
1360.   Moreover,  because under the facts of Willard  the  Jones
Acts venue clause would have required the plaintiffs in that case
to  file  their  action  in Washington  the  employers  residence
rather  than  Alaska, see 46 U.S.C. App.  688(a), the  plaintiffs
election to file in a federal forum in Alaska could not have been
deemed to be the selection of an eligible forum under Boyd.

     32    990 P.2d 616 (Alaska 1999).

     33     In  Bodzai  we  considered the validity  of  a  forum
selection clause that required Bodzai, an injured seaman, to file
any claims arising under the terms of his employment contract  in
Washington.  Bodzai asserted three separate admiralty  claims  in
state  court,  only one of which was a Jones Act claim.   Id.  at
617.   As an argument common to all three claims, Bodzai asserted
that  none arose under the terms of his employment contract  and,
consequently, none was barred by the forum selection clause.  Id.
at  618.  In contrast, although Bodzai alternatively argued  that
the  forum  selection  clause  was barred  by  Boyds  prohibition
against contractual limitations of liability, that argument  only
applied to his Jones Act claim.  In deciding Bodzai, we addressed
and resolved all three claims on their common issue, holding that
none  of  the  claims arose under the terms of Bodzais  contract.
Resolving  the entire case on that basis left us no  occasion  to
reach  Bodzais alternative theory for disposing of the Jones  Act
claim   that the forum selection was precluded by Boyd.  In  that
context, then, our silence concerning Bodzais alternative  theory
signaled no hidden view as to its merits.

     34    816 P.2d 1368, 1373 (Alaska 1991).