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Deaver v. The Auction Block Company (02/25/2005) sp-5870
Deaver v. The Auction Block Company (02/25/2005) sp-5870
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
DENNIS DEAVER, )
) Supreme Court No. S-10724
Appellant, )
) Superior Court No. 3HO-00-157
CI
v. )
) O P I N I O N
THE AUCTION BLOCK COMPANY,)
) [No. 5870 - February 25, 2005]
Appellee. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Homer,
Harold M. Brown, Judge.
Appearances: Shane C. Carew, Shane Carew,
P.S., Seattle, Washington, for Appellant.
Steven J. Shamburek, Law Office of Steven J.
Shamburek, Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Dennis Deaver delivered his halibut catch to the
Auction Block Company, which issued him an Auction Block fish
ticket. Auction Block ultimately paid Deaver less for some of
the halibut than the price specified on the fish ticket. Deaver
sued Auction Block for the specified price, claiming it was the
buyer of his fish. Following trial, the superior court found
that the parties had agreed Auction Block was an auctioneer, not
a buyer. Because it is undisputed that Auction Block gave Deaver
an Auction Block fish ticket, we hold that Auction Block was the
primary fish buyer of Deavers halibut, within the meaning of AS
44.25.040(a). If the buyer does not fully pay a fisher who
delivers fish to the buyer, the fisher can proceed against the
buyer and, per AS 44.25.040(e), the buyers surety bond. Further,
Auction Block must be considered a merchant buyer within the
meaning of Deavers claim under the Uniform Commercial Code. We
therefore reverse and remand.
II. FACTS AND PROCEEDINGS
Dennis Deaver is a commercial fisher and owner of a
fishing vessel, the F/V Pacific Sun.1 He fishes commercially in
the waters off the State of Alaska.
The Auction Block Company is an Alaska corporation that
conducts online auctions of fish and provides other services to
fishers and fish buyers. Auction Block is bonded and licensed in
Alaska as a primary fish buyer. Between May 1999 and May 2001,
it was the principal on a $10,000 surety bond issued by the
Continental Casualty Company to Auction Block conditioned upon
Auction Block paying commercial fishers for the price of raw
fishery resource purchased from them.
Deaver and Auction Block engaged in two transactions
relevant here. The dispute before us arises out of the second
transaction. In the first transaction, Deaver took a load of
fish to Seward on September 28, 1999 and sought to engage Auction
Blocks services. Deaver and Kevin Hogan, president of Auction
Block, met in Seward that evening to discuss Deavers
participation in an online auction of his fish. Hogan explained
that if three qualified bidders submitted bids, Deaver would be
committed to selling his fish to the highest bidder. Hogan also
explained that the bidders would be able to specify sale
conditions, such as a condition allowing the bidder to inspect
the fish for quality and to reduce the price for number two
quality fish. Deaver then hired Auction Block to auction his
fish.
The next morning, Deaver and Hogan watched the online
auction of Deavers fish from Auction Blocks Seward office.
Icicle Seafoods submitted the highest bid, conditioned on Icicle
grading the fish for quality and paying twenty percent less for
number two quality fish.
Deaver delivered the fish directly to Icicle in Seward,
where Icicle graded their quality. After receiving the fish,
Icicle issued Deaver an Alaska Department of Fish and Game
(ADF&G) fish ticket. The fish ticket identified Icicle as the
Company. The Fish Received by line on the ticket bore the
signature of Larry S. Dalberg. The attached catch receipt
identified Dalberg as the Reg. Buyer Representative.
Icicle graded some of the halibut as number two quality
and consequently reduced the purchase price for those fish.
Although Icicles bid had specified that Icicle would pay twenty
percent less for number two quality fish, Icicle and Deaver
negotiated a modified price reduction of ten percent.
The fish ticket Icicle issued to Deaver described the
species (halibut) and specified by size the prices per pound and
the number of pounds of fish Deaver had delivered to Icicle. It
also listed the number of pounds of number two quality fish
delivered and the reduced price per pound for those fish. It
stated the total weight delivered and the total price Icicle
agreed to pay Deaver for the halibut. Deaver paid Auction Block
a one percent commission for the transaction. There is no
dispute that Icicle was the primary fish buyer of this load of
halibut and that Auction Block was not.
The second transaction differed somewhat. Deaver
notified Auction Block in early October 1999 that he wanted to
market a load of halibut and sablefish (black cod) through
Auction Block. Auction Block conducted an online auction of
these fish; Seafood Products, of Vancouver, British Columbia, was
the high bidder, offering to pay $2.60 per pound for the halibut.
Its bid also specified that Seafood Products would inspect the
halibut at its plant and that it would pay fifteen percent less
for number two quality halibut. Snug Harbor Seafoods, a buyer in
Kenai, ultimately purchased the black cod.
Deaver landed his halibut in Seward on October 5 and
Auction Block offloaded the fish from Deavers boat. Auction
Block issued Deaver ADF&G Halibut/Sablefish Ticket P99008307.
The fish ticket listed Auction Block as the Company. Auction
Block does not dispute that the fish ticket states that Auction
Block is the buyer of the halibut, although it does not concede
that it actually was the buyer of the fish. The parties
stipulated in the superior court that: The Alaska Department of
Fish & Game Halibut/Sablefish Ticket states that the Auction
Block Company is the buyer. The Auction Block issued the fish
tickets for the second sale discussed above. The Auction Block
is listed as the registered buyer on the IFQ/CDQ Shipping
Reports.
The fish received by line on the fish ticket bears the
signature of Molly J. OLeary, an Auction Block employee. The
attached catch receipt identified OLeary as the Reg. Buyer
Representative. The fish ticket specifies the number of pounds
of halibut delivered and the price per pound, $2.60, but does not
mention any reduction for number two quality fish, and does not
state a total price for the fish. Auction Block arranged to have
the halibut trucked to Seafood Products in Vancouver.
Seafood Products paid for the shipping and inspected
and graded the fish when they were delivered in Vancouver some
days later. It decided that many of the fish that had been
stored in refrigerated sea water (RSW) were of lesser quality,
requiring downgrade to number two quality; it therefore paid
$2.21 per pound for the RSW portion of the halibut, a fifteen
percent reduction from the $2.60 specified on the fish ticket
delivered to Deaver. The reduction was consistent with the terms
of Seafood Productss bid. Seafood Products wired the purchase
money to Auction Block, which wrote two checks to Deaver. Some
weeks passed between Deavers delivery of the fish to Auction
Block and his receipt of payment from Auction Block, because
Auction Block did not pay Deaver until Seafood Products paid
Auction Block. Auction Block paid Deaver the total amount bid by
Seafood Products, as reduced by Seafood Products by fifteen
percent for the RSW halibut graded number two quality, and
further reduced by Auction Blocks commission.
Deaver sued Auction Block to recover the difference
between the price listed on the fish ticket Auction Block issued
to Deaver on October 5, 1999 when he delivered the halibut to
Auction Block and the price Seafood Products paid for the fish.
His complaint concerned the reduction from $2.60 per pound to
$2.21 per pound for the 19,000 pounds of RSW fish Deaver
delivered on October 5. Auction Block responded that it was only
the nominal buyer, and that Deaver should have sued Seafood
Products, which was, according to Auction Block, the real buyer.
The superior court conducted a one-day trial. After
listening to testimony and reviewing the documentary evidence,
the court found with respect to the second transaction that
Deaver knew he contracted with Auction Block to auction his fish
to the highest bidder. Finding that Auction Block fulfilled its
bargain, the court dismissed Deavers claim against Auction Block.
The court reasoned that the logical flaw in Deavers argument was
that the statute [AS 44.25.040] does not provide (nor can it be
implied) that only buyers can issue fish tickets. The statute
does not establish that [Auction Block] was a buyer. The court
also reasoned that the issuance of the fish ticket is merely some
evidence to be considered in determining the parties contract.
Based on all the evidence, the court rejected Deavers claim that
Auction Block was the buyer of the halibut. The court entered
final judgment dismissing Deavers complaint and awarding Auction
Block attorneys fees and costs against Deaver.
Deaver appeals the dismissal of his claims against
Auction Block. He also appeals the award of attorneys fees to
Auction Block.
III. DISCUSSION
A. Standard of Review
On appeal, we review a trial courts factual findings
for clear error and its legal rulings de novo.2 We apply our
independent judgment to questions of statutory interpretation and
adopt the rule of law that is most persuasive in light of
precedent, reason, and policy.3 Because the facts relevant to
the narrow issue before us are undisputed and because Deavers
appeal turns on the meaning and effect of a statute and
regulation, we apply our independent judgment.
B. Auction Blocks Role in the October 5 Transaction
On appeal, Deaver advances numerous factual and legal
arguments to support his contention that it was error to dismiss
his action against Auction Block: (1) the halibut were number one
quality when he delivered them to Auction Block; (2) as a matter
of fact, the transaction between Deaver and Auction Block was not
an auction; (3) as a matter of law, only a buyer may issue fish
tickets; (4) as a matter of law, when a fisher receives a fish
ticket, the company listed on the fish ticket is the buyer; (5)
when a company issues a fish ticket to a fisher and invoices a
third party for the price, the company issuing the fish ticket is
the buyer; (6) a company that is licensed and bonded by the state
to buy fish is a merchant under the Uniform Commercial Code
(UCC); and (7) unless there is an effective rejection, a merchant
buyer under the UCC must pay according to the terms of the fish
ticket.
Some of these contentions present legal or factual
disputes that were not expressly resolved below. The superior
courts finding that Auction Block was an auctioneer and not a
buyer rendered it unnecessary to decide some of the issues Deaver
raises here. We think that a single narrow legal issue controls
this appeal: does the undisputed fact that Auction Block issued
Deaver an Auction Block fish ticket when Deaver delivered his
halibut to Auction Block make Auction Block the primary fish
buyer of Deavers fish? If so, it was error to dismiss Deavers
action against Auction Block.
As Auction Block recognized in its superior court
brief, the commercial fishing industry in Alaska is highly
regulated.4 This extensive regulation reflects the states strong
interest in the management of a renewable resource.5 But it also
reflects a state social policy of protecting commercial fishers.
Thus, AS 44.25.040(a) requires a primary fish buyer to post a
surety bond for the express purpose of securing payment to
fishers for the raw fish they deliver.6 According to its title,
AS 44.25.040 is intended to provide [s]ecurity for collection of
wages and payment for raw fish.7 The statute was originally
enacted in 1977 and codified as AS 16.10.290, as part of an act
relating to security for the collection of wages and payment for
raw fish.8 In 1993 the governor, by Executive Order No. 85,
transferred from the Department of Labor to the Department of
Revenue administration of the bonding program that serves as
security for the collection of wages and payment for raw fish.9
Alaska Statute 16.10.290 then became AS 44.25.040.10
Alaska Statute 44.25.040 requires a primary fish buyer
to file a surety bond running to the state conditioned upon the
promise to pay independent registered commercial fisher[s] for
the price of the raw fishery resource purchased from them . . . .11
The primary fish buyer must post this surety bond unless the
buyer has more than the amount of the bond in lienable property
within the state.12 The statute defines primary fish buyer to
mean a person engaging . . . in the business of originally
purchasing or buying any fishery resource . . . .13
The legislature amended the statute in 1989 to extend
the coverage of the bond to unemployment insurance contributions,14
but in doing so gave priority to claims of persons furnishing
labor and to claims of independent registered commercial
fishermen.15
Alaska Statute 44.25.041 exempts specified purchasers
and entities. Buyers that do not actually purchase fish or hire
employees do not have to post a bond, nor do
restaurants, grocery stores, and established fish markets.16
There is no statutory exemption for auctioneers who are primary
fish buyers.17
We read AS 44.25.040 to require a person or firm acting
as a primary fish buyer to be licensed and to post the specified
bond. We also read it as treating the surety bond of the
primary fish buyer as security for fulfilling the purchase terms
promised to the fisher. It therefore implicitly gives the fisher
a claim against the buyer of the fish if the fisher is not fully
paid.
Also relevant to our inquiry are the state regulations
imposing duties on fishers delivering raw fish to processors or
buyers and on the persons to whom raw fish are delivered.18 Per 5
AAC 39.130, when a fisher delivers a load of fish to a buyer not
licensed to process fish, the buyer issues a fish ticket.19 The
fish ticket must be imprinted with a permit number and must
include the buyers name.20 Only a buyer who has posted the
required surety bond may obtain these fish tickets from the
state; only then can it act as a buyer.21 The fish ticket
regulation, 5 AAC 39.130, states that a person who is the first
purchaser of raw fish may operate only after receiving
authorization and fish tickets from the department.22 The
regulation also provides that forms will not be processed and
fish tickets will not be issued without certification that surety
bonds as required by [AS 44.25.040] have been posted . . . .23
Thus, the statutes and regulations require a primary fish buyer
to post the statutory bond before the buyer can issue fish
tickets and operate as a buyer.24
Was Auction Block the primary fish buyer in the October
5 transaction? Auction Block argues that it, per its agreement
with Deaver, was merely the auctioneer and not the buyer of
Deavers fish, and that Seafood Products was the primary fish
buyer. Auction Block characterized itself below as only the
nominal buyer in the transaction. Auction Block argues that it
provided services to Deaver offloading the fish, arranging for
their shipment, and processing the necessary administrative
paperwork and fisheries reporting requirements but did not buy
his fish.
Auction Block points to evidence that indicates it was
acting as an auctioneer; this evidence includes the submission of
bids by Seafood Products and other bidders and the testimony of
trial witnesses. The parties pre-trial stipulation of
uncontested facts also indicates that the parties intended
Auction Block to act as the auctioneer. Those stipulated facts
and the trial evidence would reasonably permit a fact finder to
find that Auction Block and Deaver had agreed that Auction Block
was Deavers auctioneer of the halibut Deaver delivered on October
5. Indeed, the superior court did not clearly err in making that
finding.
But the issue whether Auction Block was a primary fish
buyer under AS 44.25.040 does not depend on disputed facts, for
two reasons. First, Auction Blocks status as an auctioneer for
the October 5 halibut landing is not inconsistent with its status
as the primary fish buyer for purposes of the statute and
regulation. Auction Block seems to assume that a finding that it
was the auctioneer must mean that its conduct in issuing Deaver
an Auction Block fish ticket when he delivered the halibut to
Auction Block was of no legal significance. We disagree.
Treating Auction Block as the buyer to carry out statutory and
regulatory purposes does not preclude Auction Block from relying
on the parties contractual intentions for other purposes. Thus,
even if Auction Block, as the primary fish buyer, must satisfy
the statute by paying Deaver in full for his fish, it may still
invoke its contracted-for auctioneer status to defend against any
claims not precluded by the statute. For example, Deavers first
amended complaint sought not only a money judgment for the
difference in the $2.60 price specified on the fish ticket and
the $2.21 reduced price he received for the RSW fish, but also
unspecified damages in an amount to be proven for Auction Blocks
alleged breach of the duty of good faith and fair dealing. As to
that claim, it seems likely that Auction Blocks contracted-for
status, rather than its status as a statutory buyer, controls.
Second, even assuming the roles of auctioneer and
statutory buyer in the same fish-purchase transaction are
fundamentally inconsistent, it would not follow that the parties
contractual arrangement surmounts the demands of public policy.
Parties cannot by private contract avoid the requirements of this
kind of protective statutory and regulatory scheme or thwart its
purpose.25 The statute, by providing some protection against
nonpayment or under-payment, was enacted to protect fishers who
may be compelled by exigencies to enter into improvident
agreements with fish buyers or to deal with buyers whose own
finances may be shaky. The remedy the legislature provided
would be obviated if a buyer could compel a fisher to contract
away this statutory protection. Therefore, if the initial
recipient of the fish is deemed the primary fish buyer, its
contractual role as auctioneer cannot relieve it of its statutory
duties.
It is therefore irrelevant that Deaver arguably agreed
to contract terms that are inconsistent with the statute. The
public policy reflected by the statute must control; to hold
otherwise would leave non-parties to the contract without
effective recourse. Crew entitled to shares of the catch
proceeds could be harmed if unwise agreements defeat statutory
protections. An owners attempt to maximize price could leave
crew members no effective recourse if the ultimate recipient of
the fish were not amenable to claims in Alaska or were without
assets.
Auction Block contends that its auction services are
beneficial to fishers, and may help them obtain a higher price
for their fish. Regardless, Auction Block may not avoid the
duties imposed on it by statute and regulation, or limit the
remedy the statute provides. Auction Block is effectively asking
us to create an exemption the legislature did not enact.
Moreover, even assuming auctions may benefit fishers,
this transaction illustrates how an auction format may harm them
if a dispute arises. If the auctioneer receives the fish and
issues a fish ticket, no other subsequent purchaser would be
considered the primary fish buyer. Consequently, the ultimate
purchaser would have no obligation to post the statutory surety
bond.
Auction Block observes that Seafood Products was itself
a licensed primary fish buyer and had posted its own statutory
surety bond. Auction Block was nevertheless the buyer in this
transaction. Seafood Products was not the primary fish buyer nor
was it the initial recipient of Deavers fish. It did not issue
its own fish ticket to Deaver. Furthermore, even assuming an
ultimate purchaser has posted a bond per AS 44.25.040(a), the
briefing before us in this case does not establish that Seafood
Productss bond would apply to a transaction in which the ultimate
purchaser was not the primary fish buyer. We decline to reach
that issue in this case; two of the entities potentially most
interested in that issue, Seafood Products and its surety, are
not parties to this appeal. Moreover, efforts of the auctioneer
to determine that the successful bidder is financially
responsible are not an adequate substitute for the statutes
security requirement or for the states ultimate authority to
discipline firms acting as licensed primary fish buyers.
Finally, an auction arrangement potentially permits
exactly the sort of transaction that led to adoption of the bond
requirement in the first place: purchase of the fish by an out-of-
state buyer which may resist administrative or judicial
jurisdiction in Alaska, and which may not have the means to pay
the fisher in full or on time.26
Because the surety bond statute and fish ticket
regulation govern initial sales of raw fish, a factual finding
that Deaver and Auction Block intended to enter into a contract
for auction services does not dispose of Deavers claim. The
material facts relevant to this appeal are Deavers delivery of
the halibut to Auction Block, and Auction Blocks issuance to
Deaver of an Auction Block fish ticket listing the halibut Deaver
delivered to Auction Block, and listing Auction Block as the
buyer.
C. Deavers UCC Claim
Deaver also argues that Auction Block was a buyer under
the Uniform Commercial Code (UCC) and therefore subject to rules
governing buyers. Fish are goods as defined by the UCC.27 The
undisputed facts also demonstrate that Auction Block held itself
out as a knowledgeable dealer in fish sales. For example, Kevin
Hogan, president of Auction Block, stated in his affidavit that
the company is the Home of the Cyber Fish and allows prospective
buyers and sellers of commercially harvested fish to meet in the
cyberspace marketplace. Auction Block was therefore a merchant
for purposes of the UCC.28 Because Auction Block was the primary
fish buyer in the October 5, 1999 transaction, under the UCC it
was also a buyer who buys or contracts to buy goods.29 It was
therefore subject to UCC rules governing buyers.
The UCC provides that acceptance of goods occurs when a
buyer fails to make an effective rejection, or after a reasonable
opportunity to inspect the goods, signifies to the seller that
the goods are conforming or that the buyer will take or retain
them in spite of their nonconformity.30 Deavers superior court
affidavit stated that he confirmed with Auction Block personnel
on site that the fish were in excellent condition, and also
stated that Auction Block accepted the fish for shipment to
Seafood Products. Auction Block did not rebut these facts, which
establish that it had the opportunity to inspect the fish and
that it did not indicate to Deaver that any defects were present.
Auction Block therefore accepted the goods within the meaning of
the UCC.31
Acceptance imposes on Auction Block the burden of
establishing any breach with respect to the accepted goods and,
failing that, obligates Auction Block to pay Deaver the contract
rate.32
Because the dismissal of Deavers complaint was founded
on a ruling that Auction Block was not the buyer and because
issues of material fact may remain, we remand for consideration
of Deavers claims against Auction Block. We express no opinion
about the specific merits of Deavers claims beyond our conclusion
that Auction Block must be deemed the statutory buyer of the
halibut under AS 44.25.040, that Deaver may therefore proceed
against Auction Blocks surety bond, and that Auction Block has
the status of a buyer for purposes of a claim against Auction
Block under the UCC.
Deavers Alaska Civil Rule 68 and attorneys fees
arguments are mooted by our decision reversing the dismissal of
Deavers action, because the award of attorneys fees and costs to
Auction Block must be vacated.
IV. CONCLUSION
Because Auction Block issued its own fish ticket to
Deaver when Deaver delivered his fish to Auction Block, we hold
that Auction Block was the buyer of the fish under AS 44.25.040.
We therefore REVERSE the judgment of dismissal, VACATE the award
of attorneys fees and costs, and REMAND for further consideration
of Deavers claims against Auction Block.
_______________________________
1 We describe these mostly undisputed facts to provide a
context for the narrow legal issue of this appeal. We do not
intend to preclude the parties from litigating genuine material
factual disputes on remand.
2 Skaflestad v. Huna Totem Corp., 76 P.3d 391, 395
(Alaska 2003).
3 In re Life Ins. Co. of Alaska, 76 P.3d 366, 368 (Alaska
2003).
4 State v. Dutch Harbor Seafoods, Ltd., 965 P.2d 738, 742
(Alaska 1998) (evaluating strict liability commercial fishing
regulations in the context of the highly regulated multi-million
dollar fishing industry); State v. Lawler, 919 P.2d 1364, 1366
(Alaska App. 1996) (calling commercial fishing a licensed and
heavily regulated commercial activity and holding that
participants in this activity can properly be held to higher
standard of compliance than might be appropriate for ordinary
citizens); Cole v. State, 828 P.2d 175, 178 (Alaska App. 1992)
(stating that commercial fishing qualifies as heavily regulated
industry); see also McNabb v. State, 860 P.2d 1294, 1298 (Alaska
App. 1993) (noting that court had upheld the application of large
fines in commercial fishing cases and that fines reflect the
heavily regulated nature of the industry, the large profits which
can occur from illegal fishing, and the value of the resource to
the citizens of the state).
5 We have noted that in conformity with article VIII,
section 2 of the Alaska Constitution, the legislature created the
Board of Fisheries for purposes of the conservation and
development of the fishery resources of the state. Interior
Alaska Airboat Assn v. State, Bd. of Game, 18 P.3d 686, 690-91
(Alaska 2001) (citing Alaska Fish Spotters Assn v. State, Dept of
Fish & Game, 838 P.2d 798, 800 (Alaska 1992)); see also Nathanson
v. State, 554 P.2d 456, 458 (Alaska 1976). The court in
Nathanson noted that Alaskas fisheries are unquestionably an
important resource of this state and, further, that to insure the
viability of this resource and the welfare of those dependent
upon it, the state has broad powers in the regulation of
fisheries. Id. at 458.
6 AS 44.25.040(a) provides in part:
A person applying for a license as a fish
processor or primary fish buyer shall file
with the commissioner of revenue a surety
bond running to the State of Alaska
conditioned upon the promise to pay . . . (2)
independent registered commercial fishermen
for the price of the raw fishery resource
purchased from them . . . .
7 A fiscal note attached to House Bill 350 before its
enactment as chapter 102, SLA 1977, described the bills purposes
in these terms:
This bill will provide needed protection to
persons furnishing labor in the business of
fish processor or buyers, particularly those
enterprises that are not domestic in the
state, claims against the latter are
difficult if not impossible to collect or
require considerable time to resolve,
creating a financial hardship to a claimant.
8 Ch. 102, 2, SLA 1977.
9 Executive Order No. 85 1 (1993).
10 Id. at 3-4.
11 AS 44.25.040(a) provides:
A person applying for a license as a fish
processor or primary fish buyer shall file
with the commissioner of revenue a surety
bond running to the State of Alaska
conditioned upon the promise to pay (1) all
persons furnishing labor to a fish processor
or primary fish buyer, including contractual
employee benefits; (2) independent registered
commercial fishermen for the price of the raw
fishery resource purchased from them; and (3)
unemployment insurance contributions. If the
surety bond is insufficient to satisfy all
obligations under this subsection, the
obligations to persons furnishing labor and
to independent registered commercial
fishermen shall be paid before unemployment
insurance contributions are paid. The surety
or sureties must be satisfactory, in the
determination of the commissioner.
12 AS 44.25.040(c) (A bond is not required if the fish
processor or primary fish buyer has more than the amount of the
bond in lienable property in the state and provides proof of the
property satisfactory to the commissioner.).
13 AS 44.25.048(6).
14 Ch. 100, 1, SLA 1989, codified as AS 16.10.290(a) (now
codified as AS 44.25.040(a)).
15 AS 44.25.040(a).
16 AS 44.25.041 provides:
Exemptions from bonding requirement. (a) A
fish processor or primary fish buyer that
does not purchase fish or hire employees is
exempt from the bonding requirements of AS
44.25.040.
(b) Restaurants, grocery stores, and
established fish markets are exempt from the
bonding requirement of AS 44.25.040.
17 See AS 44.25.041(a)-(b).
18 5 AAC 39.130.
19 5 AAC 39.130(c) provides in part: Each buyer of raw
fish, each fisherman selling to a buyer not licensed to process
fish (a catcher/seller), and each person or company who catches
and processes his or her own catch or that has catch processed by
another person or company shall record each landing on an ADF&G
fish ticket. (Emphasis added.)
20 5 AAC 39.130(c)(1), (c)(9).
21 5 AAC 39.130(a)(1).
22 Id.
23 Id.
24 See State v. Tyonek Timber, Inc., 680 P.2d 1148, 1156
(Alaska 1984). In Tyonek, we stated that AS 36.25.010-.025
(Alaskas Little Miller Act) requires primary contractors to post
a payment bond to protect persons supplying labor and material;
award of a contract is conditioned upon the contractors
furnishing of the bond. The requirement here is analogous;
ability to buy fish is conditioned upon the buyers furnishing of
the surety bond.
25 See Currington v. Johnson, 685 P.2d 73, 78 (Alaska
1984) (stating contract is void if made in violation of
constitutional statute, even if statute does not contain express
prohibition). See also Hoffman Constr. Co. v. United States
Fabrication & Erection, Inc., 32 P.3d 346, 354 (Alaska 2001)
(stating that AS 45.45.900 limits enforceability of
indemnification clauses in private contracts).
26 See supra note 7.
27 AS 45.02.105(a) states that goods means all things . .
. which are movable at the time of identification to the contract
for sale other than the money in which the price is to be paid,
investment securities (AS 45.08) and things in action.
28 AS 45.02.104(a) defines merchant to be:
a person who deals in goods of the kind or
otherwise by occupation holds oneself out as
having knowledge or skill peculiar to the
practices or goods involved in the
transaction or to whom this knowledge or
skill may be attributed by the persons
employment of an agent or broker or other
intermediary who by occupation holds oneself
out as having this knowledge or skill.
29 AS 45.02.103(a)(1).
30 AS 45.02.606(a)(1)-(2).
31 Id.
32 AS 45.02.607(a)-(b), (d); AS 45.02.709(a)(1).
