My Journey from Merchant Marine to Maritime Lawyer
After 12 years in the merchant marine and pursuing education between voyages, I made a significant career change in 1982, transitioning from a merchant seaman to a lawyer. Since then, I have represented various seamen in wage and injury claims. Maritime law, largely shaped by judicial decisions (stare decisis), allows seamen to choose between state or federal court when suing for wages or injury. Over the past 35 years, I have played a part in shaping maritime law, with over 20 significant reported decisions and nearly 50 articles in Trial News.
Early Legal Career and Notable Cases
Immediately after taking the 1982 summer bar exam, I began working as a Rule 9 intern. My first major task was to sue Ronald Reagan for cutting off free medical care for seamen by closing the U.S. Public Health Service Hospitals. I filed a class action on behalf of about 5,000 permanently disabled seamen, but the case was dismissed on summary judgment by federal Judge Donald Voorhees. Despite an unsuccessful appeal to the Ninth Circuit and a denied petition for certiorari to the U.S. Supreme Court, the Ninth Circuit's decision contained dicta supporting the right to lifetime medical care for permanently disabled seamen, albeit from ship owners rather than the government. This case inspired two Trial News articles: “Do Seamen and Fishermen Injured in the Service of the Ship have the Right to Medical Care for Life?” (January 1994), and “Suing Ronald Reagan…” (April 2010).
Working under my new boss, who had numerous Jones Act cases, I quickly learned to argue for tolling, extending, or disregarding limitation periods. For a 1979 injury case where the three-year limitation period was missed by 26 days, I convinced federal Judge William Beeks that the three-year limit should not be applied retroactively. This case, Nasser v. Hudson Waterways, 563 F.Supp. 88 (W.D. Wash. 1983), set an important precedent. Later, I persuaded federal Judge William Dwyer to continue applying the flexible laches doctrine to maintenance-and-cure claims instead of the rigid three-year limit. This was established in Lightfoot v. Arctic Storm, 1994 A.M.C. 2460 (W.D. Wash. 1994).
International Advocacy and the ITWF
In the 1980s, I collaborated with the International Transport Workers Federation (ITWF), which monitors wages and working conditions for seamen on ships flying flags-of-convenience from countries like Liberia and Panama. These flags are often used to circumvent safety standards and wage scales of the ship owners' home countries. Seamen from third-world countries, like the Philippines and Indonesia, were paid extremely low wages. The ITWF would mobilize sympathetic unions in Western countries to boycott and picket offending vessels.
Some vessels used a double set of books to deceive ITWF inspectors, showing higher wage rates while actually paying much less. One such vessel, the M/V Hira II, docked in Seattle in 1989. The Filipino crew was paid far less than the collective bargaining agreement stipulated. I filed a suit in federal court and had the vessel arrested. Although the vessel was bonded out and the crew discharged in Hong Kong, Judge Dwyer ruled that U.S. federal courts have mandatory jurisdiction over wage claims by foreign seamen in U.S. ports, even if they are not discharged there. This ruling was made in Galon v. M/V Hira II, 1990 A.M.C. 342 (W.D. Wash. 1989). However, a subsequent case effectively reversed this ruling.
My journey from merchant seaman to maritime lawyer has been marked by significant legal battles and contributions to maritime law, impacting the rights and welfare of seamen across the globe.
The Case of the M/V Pine Forest and the Evolution of Maritime Law
The M/V Pine Forest was a freighter transporting logs from the U.S. to Japan, flying the flag of Vanuatu, but owned by Japanese interests. Members of the Filipino crew risked their jobs to report to an ITWF Inspector that they were not receiving the wages specified in their collective bargaining agreement. The Inspector brought in Jerry Dodson, a skilled lawyer from Baton Rouge, Louisiana, to address the issue of double bookkeeping. Dodson filed suit and had the Pine Forest seized in Tacoma. I served as local counsel.
Assigned to federal Judge Jack Tanner, the case resulted in a bench trial where Judge Tanner awarded $32 million in wage penalties and other relief. This verdict was celebrated as the largest wage award to seamen in history. Although I cannot claim credit for the trial's outcome, nor for the subsequent appeal, NYK's appeal led to a significant reversal by the Ninth Circuit. The appellate court ruled that foreign seamen could not use U.S. wage penalty statutes unless they were discharged in a U.S. port. This ruling in Raby v. M/V Pine Forest, 1990 A.M.C. 2441 (W.D. Wash. 1990), modified sub nom., Su v. Southern Aster, 978 F.2d 462 (9th Cir. 1992), effectively ended my ability to represent foreign seamen on wage claims, as they typically lacked U.S. immigration status.
Changes in the U.S. Merchant Marine and Legal Battles
During the 1990s, the U.S. merchant marine continued to shrink, with more freight carried by ships under flags-of-convenience. Meanwhile, the fishing industry boomed due to the Exclusive Economic Zone, which restricted fishing within 200 miles of the U.S. coastline to U.S.-flagged vessels. My client base shifted from merchant seamen to commercial fishermen, including factory workers on fish processing ships, who are legally considered seamen.
In 1992, a prominent marine insurance defense firm adopted more aggressive and questionable tactics in defending Jones Act cases, leading to widespread discovery abuse. In response, I was appointed chairman of the Maritime Section of the Washington State Trial Lawyers Association (now the Washington State Association for Justice) for the 1993-94 term. I confronted the defense firm through bar complaints, motion practice, and meetings. Despite attempts to address these issues, including a request for Judge Dwyer to oversee a meeting to discuss discovery abuse, the firm only agreed to a private meeting, which did not resolve the conflicts.
One notable case, involving small damages, escalated to the state Supreme Court. In Miller v. Arctic Alaska Fisheries, 83 Wash.App.255, rev’d, 133 Wn.2d 250 (1997), the Supreme Court made a controversial ruling on the doctrine of unearned wages, which I critiqued in a Trial News article titled “Litigation or War of Attrition?” (February 1998). The court also analyzed the new Evidence Rule 904, allowing certain documents into evidence without witness verification. Over time, the defense firm reverted to more standard litigation tactics, losing market share in the process.
Advocacy for Seamen's Rights
One of the most significant cases of my career is Lundborg v. Keystone Shipping, 138 Wn.2d 658 (1999). At that time, union seamen received only $8 per day in maintenance during recuperation, a rate set during the Korean War. The Ninth Circuit had upheld this rate due to its inclusion in a collective bargaining agreement. However, the Washington State Supreme Court ruled that this rate was not binding if it failed to cover basic living expenses, contradicting federal precedent.
In the same year, federal Judge John Coughenour ruled similarly in Rowell v. Tyson, 1999 A.M.C. 2277 (W.D. Wash. 1999), stating that maintenance rates in employment contracts were not legally binding if they did not cover basic necessities. This ruling challenged the long-standing practice of limiting maintenance to $20 per day by fishing companies. Both the Lundborg and Rowell cases were discussed in a Trial News article, “Rates of Maintenance in Contracts of Employment Not Enforced When Too Low to Reimburse Reasonable Expenses for Recuperating Seamen” (December 1999).
These cases and my continued advocacy have aimed to ensure fair treatment and adequate compensation for seamen, reflecting my dedication to maritime law and the rights of those who work at sea.
Processors on Factory Trawlers and FLSA Exemptions
Processors on fish factory ships are entitled to minimum and overtime wages under the Fair Labor Standards Act (FLSA), 29 U.S.C. §201 et seq. However, processors doing the same work on factory trawlers—vessels that both catch and process fish—are not entitled to these wage protections. Instead, they work for a share of the catch, often a minuscule percentage of the sale price, without any guarantee of compensation. They typically work 16-hour days, seven days a week, and can end up earning little or nothing if the fishing is bad or if the catch is fraudulently understated. This is due to the exemption for those engaged in fishing and the "first processing" of fish under 29 U.S.C. §213 (a)(5).
At the time the FLSA was enacted in 1938, there were no U.S.-flagged factory trawlers. Fish were caught by catcher boats, then headed, gutted, and delivered to land-based canneries for final processing. I argued that "first processing" referred to the initial handling of fish by fishermen, while the "real" processing was done by land-based processors who were entitled to FLSA wages. This theory was detailed in "Are Processors aboard Factory Trawlers Entitled to Federal Minimum Wage and Overtime Protection?" (Trial News, July/August 1994).
Despite my efforts in federal court to challenge the interpretation of the "first processing" exemption, the Ninth Circuit ruled against my arguments in an unpublished memorandum decision, Wyatt v. Royal Seafoods, 96-35960 (1998). Undeterred, I continued to push my interpretation in both federal and state courts.
The Case of the Do Family and Tinh Pham
Some fishing companies engage in unscrupulous practices, charging processors for expenses such as airfare and ship store charges, often leaving them with a bill instead of a paycheck. This issue was highlighted in "Working 16 Hours/Day for No Pay" (Trial News, March 2001).
Three Vietnamese immigrants, Wayne and Gabby Do, and their friend Tinh Pham, came to see me after experiencing such treatment aboard the factory trawler F/T Ocean Peace. Wayne was injured, Gabby was sexually harassed, and Tinh Pham became ill. They left the ship 30 days into a 40-day contract and were billed for their northbound airfare after borrowing money from relatives to fly home.
I filed suit in federal court for Gabby Do and Tinh Pham, and a parallel lawsuit in King County Superior Court for Wayne Do. Federal Judge Thomas Zilly dismissed the federal case on summary judgment, and the state case was similarly dismissed. The Ninth Circuit upheld the dismissal, ruling that "first processing" in the exemption meant the first time fish are processed, rather than the first stage of processing (Do v. Ocean Peace, 279 F.3d 688 (9th Cir. 2002)). The Washington State Court of Appeals followed suit in an unpublished opinion (Do v. Ocean Peace, No. 49056 -7-I (Wn. App. 2002)).
Subsequent Legal Developments and Advocacy
In 2002, I persuaded federal Judge Barbara Rothstein to incorporate the Enhanced Injury Doctrine into maritime law. This doctrine allows for damages if an injured person's condition is worsened by other factors. In Van Valkenberg v. Puget Sound Inflatables, 2002 A.M.C. 2673 (W.D. Wash. 2002), the case involved a seiner capsizing and the failure of a life raft to deploy. Judge Rothstein applied the Enhanced Injury Doctrine to maritime law, a significant legal development.
Further, federal Judge Coughenour ruled that the failure to report injuries within seven days does not negate a vessel owner’s obligation to pay compensation (Hankin v. Traveler, 2003 A.M.C. 2099 (W.D. Wash. 2003)). Judge Robert Lasnik ruled that a fishing company's obligation to pay maintenance-and-cure could resume if there was a way to improve healing from an initial injury, even if that obligation had previously terminated (Smith v. Marauder, 2003 A.M.C. 1308 (W.D. Wash. 2003)).
In another notable case, Gruver v. Lesman, 489 F.3d 978 (9th Cir. 2007), involved a fisherman not provided a written contract as required by 46 U.S.C. §10601. Gruver was also assaulted by the Master of the vessel. Judge Bryan ruled that the fisherman was entitled to double-wage penalties under state law, on top of wages increased under federal law. This case set a precedent for combining state and federal wage penalties.
Maintenance and Child Support Issues
I have long argued that child support should not be deducted from maintenance payments, as maintenance is a substitute for the free room and board a seaman would have received if not injured. This view, however, has not been widely accepted. In Aguilera v. Alaska Juris, 535 F.3d 1007 (9th Cir. 2008), the Ninth Circuit ruled that maintenance constituted "resources" under Texas law, subjecting it to garnishment for child support. Despite my disagreement with this decision, I opted not to pursue it to the U.S. Supreme Court.
Throughout my career, I have advocated for fair treatment and adequate compensation for seamen and processors, fighting against systemic injustices in the maritime industry.
This saga isn't over yet. It's a basic principle that maritime law, not state law, should determine maintenance issues. Even if we look at state law, particularly that of Washington (if not Texas), maintenance shouldn't be treated as regular wages. Leaving an injured seaman with just $10 a day to survive not only pushes them towards public assistance but also fails to align with the public policy behind child support payments. The Aguilera decision, strictly interpreted, only pertains to Texas law's definition of "resources." I'm eagerly awaiting a test case in Washington state regarding garnishment of maintenance for child support. My intention is to challenge the state law, arguing that maintenance shouldn't be classified as "income."
Seamen aren't covered by workers' compensation. The closest they get to compensation for lost time is through unearned wages, which are paid until the end of their expected period of employment, often termed as maintenance-wages-cure. I contested a practice in state court where fishing companies issued short-term contracts but expected workers to stay for longer periods before reimbursing travel expenses. The State Supreme Court rejected my argument, which later led to even shorter contracts, even as brief as one trip. I then brought cases to federal court, where I found success in challenging these practices, despite setbacks in some cases.
One significant victory in my career was the Dean v. Fishing Company of Alaska case. This case addressed companies' tactics to cut off maintenance-and-cure benefits for ill or injured seamen by obtaining opinions from hired doctors. The state Supreme Court's ruling shifted the burden of proof to the vessel owners to show that the seaman was no longer entitled to maintenance-and-cure, preventing insurance companies from starving out seamen until they settled for less.
There are no federal statutory penalties for failing to pay wages to commercial fishermen, allowing fishing companies to circumvent state wage penalties by including specific language in contracts. I've been striving to establish precedents, in both state and federal courts, to enable punitive damages for wage claims of fishermen, but the issue remains unresolved.
Several pending cases could establish important precedents, including disputes over overtime compensation for ill or injured seamen and the enforcement of settlements that restrict seamen's future employment. Another significant issue is whether fishermen can be discharged without cause during the contractual term specified in their employment contracts.
Though retirement may beckon someday, I remain committed to my work, believing that true meaning is found in the ongoing struggle for justice.
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