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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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
MIGUEL NUNEZ, )
) Supreme Court No. S-9875
Appellant, )
) Superior Court No.
v. ) 3DI-99-141 CI
)
AMERICAN SEAFOODS, ) O P I N I O N
)
Appellee. ) [No. 5593 - July 12,
2002]
)
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.
I. INTRODUCTION
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.
II. FACTS AND PROCEEDINGS
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.
III. ANALYSIS
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
implies.[21]
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.
IV. CONCLUSION
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
1999).
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)
(1988)).
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
818).
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).
