Day v. American Seafoods Co.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JACKIE DAY, Executor of the Estate 
of Jesse Ray O’Neal, Jr.,
Plaintiff-Appellant,
v. No. 07-35712
AMERICAN SEAFOODS COMPANY  D.C. No.
CV-06-01579-RSM
LLC, in personam; KATIE ANN F/T
Offical Number 518441, her OPINION
engines, machinery, appurtenances
and cargo in rem,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding

Submitted December 12, 2008*
Seattle, Washington

Filed March 2, 2009

Before: Robert R. Beezer, Ronald M. Gould and
Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Gould

*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

2409
 DAY v. AMERICAN SEAFOODS CO. 2411

COUNSEL

John Merriam, Seattle, Washington, for the plaintiff-
appellant.

Anthony John Gaspich and Russell Reese Williams, Gaspich
& Williams, PLLC, Seattle, Washington, for the defendant-
appellee.

OPINION

GOULD, Circuit Judge:

Jackie Day (“Day”), as executor of the estate of Jesse
O’Neal, Jr. (“O’Neal”), appeals the order of the district court
barring extrinsic evidence pertaining to the duration of
O’Neal’s employment agreement with American Seafoods
Company (“ASC”). O’Neal signed a contract to work for
ASC that was limited to one fishing voyage and that included
an integration clause. O’Neal hurt his neck and back on that
voyage, and left the ship’s employ after the voyage. ASC paid
O’Neal wages through the end of that trip, and O’Neal did not
2412 DAY v. AMERICAN SEAFOODS CO.
sign a new contract to work with ASC on another voyage.
Day seeks “unearned wages” for a period of time longer than
the single voyage agreed upon in the employment contract,
and contends that extrinsic evidence will show an oral under-
standing for that longer period. The district court declined to
admit parol evidence on the question. We review the district
court’s application of the parol evidence rule de novo. See
Miller v. Fairchild Indus., Inc., 885 F.2d 498, 503 (9th Cir.
1989). We affirm.

[1] Unearned wages are “the actual wages the seaman did
not earn because of his injury or illness.” Berg v. Fourth Ship-
mor Assocs., 82 F.3d 307, 309 (9th Cir. 1996).1 “Generally
speaking, . . . whether the employment is for a voyage or for
a definite time, it is the shipowner’s obligation to pay a sea-
man who falls ill or is injured while in the service of the ves-
sel, full wages throughout the period of employment.” Id.
(quoting Vitco v. Joncich, 130 F. Supp. 945, 949 (S.D. Cal.
1955), aff’d 234 F.2d 161 (9th Cir. 1956)). The dispute here
is over the “period of employment” for which ASC owed
O’Neal unearned wages after he was injured.

[2] Federal law requires that shipowners and employees for
fishing voyages enter a fishing agreement, in writing, that
“state[s] the period of effectiveness of the agreement.” 46
U.S.C. § 10601(b)(1) (2000).2 ASC complied by reaching a
1
Unearned wages are part of the doctrine of “maintenance and cure.”
See Lipscomb v. Foss Maritime Co., 83 F.3d 1106, 1109 (9th Cir. 1996)
(“Under the general maritime law, a seaman who falls ill or becomes
injured while in the service of a ship is entitled to ‘maintenance and cure’
by his employer. This right includes (1) ‘maintenance’ —a living allow-
ance for food and lodging to the ill seaman; (2) ‘cure’—reimbursement for
medical expenses; and (3) ‘unearned wages’ from the onset of injury or
illness until the end of the voyage.”) (internal citations omitted).
2
Congress has passed different laws for different seafaring trades: 46
U.S.C. Chapter 103 for foreign and intercoastal voyages, 46 U.S.C. Chap-
ter 105 for coastwise voyages, and 46 U.S.C. Chapter 106 for fishing voy-
ages.
 DAY v. AMERICAN SEAFOODS CO. 2413
written agreement with O’Neal that stated prominently that
“the term of this Contract Period is agreed to be for one (1)
trip.” The agreement defined “trip” as one fishing voyage,
from the time the seaman reports to the vessel to the time the
catch is unloaded. Further, O’Neal signed immediately below
an integration clause that provided:

This agreement constitutes the final commitment of
the parties, and any modification of its terms is inef-
fective unless agreed upon in writing, signed by the
party against whom enforcement is sought. No party
has entered into this Agreement based on any repre-
sentation, consideration, or promise not stated in this
Agreement.

On the basis of the explicit contractual language and the
integration clause, the district court held that Day could not
offer extrinsic evidence to rebut the unambiguous duration
agreed upon in the contract. See generally United States v.
Triple A Mach. Shop, Inc., 857 F.2d 579, 585 (9th Cir. 1988)
(explaining the federal parol evidence rule).

[3] Unearned wages are only available for the “period of
employment,” Berg, 82 F.3d at 309, and 46 U.S.C. § 10601
requires written employment contracts that state explicitly the
period of employment. While section 10601 does not alter the
doctrine of maintenance and cure, it does require that the
durational language specified in the contract be honored, even
when calculating unearned wages. See Diaz v. Ocean Peace,
Inc., No. C00-490P, 2000 U.S. Dist. LEXIS 20127, at *3
(W.D. Wash. Aug. 8, 2000); Miller v. Arctic Alaska Fisheries
Corp., 944 P.2d 1005, 1013 (Wash. 1997) (“We do not
believe where federal law requires the maritime employer and
seaman to agree in writing on the length and terms of employ-
ment we will permit variation of the terms of the agreement
by parol evidence.”). Day contends that Miller and Diaz are
“flat out wrong,” and that express durational language in a
contract should only limit the recovery of earned, not
2414 DAY v. AMERICAN SEAFOODS CO.
unearned, wages to the agreed duration. However, Day offers
no relevant support for these contentions, and cites no support
for the proposition that unearned wages have ever been avail-
able for longer than an explicit duration included in an unam-
biguous employment agreement.

Day cites two cases in an unsuccessful attempt to overcome
the parol evidence rule. The primary case cited by Day is
inapposite because it dealt with an ambiguous durational
term. Benny v. Blue North Fisheries, No. C04-0672L (W.D.
Wash. Jan. 3, 2005) (order denying plaintiff’s motion for par-
tial summary judgment) (“The contract at issue here (to the
extent there was one) is ambiguous regarding the contem-
plated duration of plaintiff’s employment . . . .”). The other
case, as the district court here pointed out, is a 10-line order
that lacks context, Gillis v. Seldovia Fisheries, Inc., No. C04-
1503C (W.D. Wash. Mar. 29, 2005) (order determining what
evidence admissible). Day does not argue that the duration
term in this case is ambiguous, and he has failed to persuade
us that the explicit and unambiguous contract term may be
rebutted by extrinsic evidence.

We also reject Day’s arguments that employment contracts
for one fishing voyage are, as applied to unearned wages, per
se unconscionable or void as against public policy. Day cites
Vitco, 130 F. Supp. at 950-51, to support this position. At
most, however, Vitco stands for the proposition that an
employer may not contractually abrogate its duty to pay
unearned wages for the duration of an employment agree-
ment. Id. at 951. That case does not apply here because the
employee and employer agreed to a one-voyage employment
arrangement and the employee seeks unearned wages beyond
that single voyage.

[4] There are valid reasons why both the employee and
 DAY v. AMERICAN SEAFOODS CO. 2415
employer may wish to enter into one-voyage contracts. We
decline to declare such contracts unconscionable per se.3

AFFIRMED.

3
Day argues that if shipowners can enter contracts for “one fishing
voyage”—as even Day concedes has been an accepted practice for many
years—then soon we will see contracts of a week or even a day, just so
employers can avoid unearned wages if the party gets injured or sick. That
eventuality can be addressed if it ever arises. A contract for an entire voy-
age does not present the same concerns.