(concurring in part, dissenting in part) — I agree with the majority that Lundborg may not recover additional “unearned wages” beyond the wages that have already been paid to him by the Keystone Shipping Company (Keystone). I disagree, however, with the majority’s conclusion that Lundborg is owed additional maintenance if the trier of fact determines that the maintenance rate provided for in the collective bargaining agreement (CBA) is so low as to constitute an abrogation of “Lundborg’s ancient entitlement to maintenance.” Majority op. at 660. In my view, the maintenance of $8 per day was properly estab*675lished in the CBA that was freely entered into by Lundborg’s union, the National Marine Union (NMU), and Keystone. The trier of fact should not, therefore, be permitted to supplant the negotiated rate of maintenance with a rate that simply reflects its notion of what the rate should be.
It is important to observe that our national labor laws manifest a strong preference for protecting the collective bargaining process. See 29 U.S.C. § 151 (stating that it is the policy of the United States to “encourag[e] the practice and procedure of collective bargaining”). Indeed, the United States Supreme Court has recognized the importance of collective bargaining and has frowned on efforts of states to interfere with this process. It has explicitly stated that the
ordering and adjusting of competing interests through a process of free and voluntary collective bargaining is the keystone of the federal scheme to promote industrial peace. State law which frustrates the effort of Congress to stimulate the smooth functioning of that process thus strikes at the very core of federal labor policy.
Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 104, 82 S. Ct. 571, 7 L. Ed. 2d 593 (1962) (emphasis added). This court has echoed the same sentiment, recognizing that there “is a strong federal labor policy, which favors written labor contracts and also favors their enforcement.” Restaurant Employees v. Rhodes, 90 Wn.2d 162, 165, 580 P.2d 611 (1978) (citations omitted); see also Trust Fund Servs. v. Heyman, 88 Wn.2d 698, 704, 565 P.2d 805 (1977) (stating that there is a federal statutory policy which favors the “enforcement of collective bargaining agreements”).
Unfortunately, the majority disregards the clear mandate of federal statutes and cases, as well as our own case law, and renders an opinion which, in my view, serves to “frustrate [] the effort of Congress to stimulate the smooth functioning of th[e] [collective bargaining] process [and] thus strike[] at the very core of federal labor policy.” Local 174. 369 U.S. at 104.
*676In judicially rewriting a provision in the CBA agreed upon by Keystone and Lundborg’s union, the terms of which were freely agreed upon by the contracting parties, the majority pays insignificant heed to the fact that every federal appellate court, save one, that has considered the argument advanced by Lundborg, has rejected it and enforced the maintenance rate set forth in the CBA that those courts were reviewing. See, e.g., Gardiner v. Sea-land Serv., Inc., 786 F.2d 943, 947 (9th Cir. 1986) (holding that “refusal to enforce the collectively-bargained [$8] maintenance rate would vitiate somewhat several of the policies underlying the federal labor laws”); Baldassaro v. United States, 64 F.3d 206, 212-13 (5th Cir. 1995) (rejecting a seaman’s claim that a CBA’s maintenance rate of $8 per day was unreasonable and so insufficient as to abrogate his right to maintenance); Al-Zawkari v. American S.S. Co., 871 F.2d 585, 588 (6th Cir. 1989) (holding that “the maintenance per diem rate, like any other benefit, which is the ultimate result from give and take collective bargaining between the parties, should be binding on them”); Macedo v. F/V Paul & Michelle, 868 F.2d 519, 522 (1st Cir. 1989) (holding that an agreed-upon maintenance rate in a CBA should be enforced).10 Indeed, in a lower federal court, the very maintenance provision of the NMU/Keystone CBA that is at issue here was challenged on grounds identical to those raised by Lundborg and was upheld. See Hodges v. Keystone Shipping Co., 578 F. Supp. 620, 622 (S.D. Tex. 1983) (“The NMU contract rate is the rate bargained for by the union as part of an overall benefits package. NMU members are to be paid maintenance at the $8 per day rate regardless of actual expenses for food and lodging. Accordingly, the Court finds that [the] plaintiff, as a member of the NMU, is bound by the maintenance rate of $8 per day, as specified in the collective bargaining agreement. . . .”).
*677It is particularly noteworthy that the majority’s opinion runs directly contrary to the decision of the Ninth Circuit Court of Appeals in Gardiner v. Sea-Land Service.11 While this court is not bound by the decision in Gardiner, we should, in my view, give substantial deference to the Ninth Circuit’s interpretation of federal maritime law. See In re Personal Restraint of Grisby, 121 Wn.2d 419, 430, 853 P.2d 901 (1993) (stating “we always give careful consideration to Ninth Circuit decisions”); State v. McCormack, 117 Wn.2d 141, 144, 812 P.2d 483 (1991) (stating that “federal Court of Appeals opinions construing federal law are ‘entitled to great weight’ in the state courts”) (quoting Home Ins. Co. v. Northern Pac. Ry., 18 Wn.2d 798, 808, 140 P.2d 507, 147 A.L.R. 849 (1943)). On a more practical level, the majority’s decision will undoubtedly encourage future forum shoppers to initiate similar lawsuits in the courts of this state, secure in the knowledge that they will receive a more favorable result here than in a neighboring federal district court.
The majority’s decision is motivated by its conclusion that a seaman may not be able to provide himself or herself with food and lodging for $8 per day and, if that is the case, the CBA has essentially abrogated the seaman’s right to maintenance. The majority leaves to the trier of fact the responsibility to determine the adequacy of the agreed upon maintenance rate. While I do not think that the sufficiency *678of a freely bargained for maintenance rate is properly a fact question for the trier of fact, I must observe that the maintenance provision is not as inadequate as it may appear to be on the surface. I reach that conclusion because the CBA provides that if the seaman “is unable to obtain lodging and subsistence for eight dollars ($8.00) per day, upon request the Company will furnish the same.” Clerk’s Papers (CP) at 108. This provision should overcome the majority’s concern that “there is evidence in the record to suggest that . . . food and lodging would cost much more than $8 per day.” Majority op. at .671. The majority also ignores the fact that the CBA specifically provides that Keystone must pay for the return transportation of crew-members whose services are terminated in a port “other than the port of original engagement for legitimate illness or injury.” CP at 109-10. Accordingly, an injured seaman is entitled to receive free transportation to their “port of original engagement,” presumably the place where the seaman makes his or her home. In such event the seaman would not be in need of other lodging.
Fundamentally though, the majority unwisely accepts Lundborg’s policy argument that the $8 per day maintenance rate essentially abrogates the seaman’s right to maintenance. The plain fact is that Lundborg’s union made a specific choice in its contract negotiations with Keystone to accept a lower maintenance rate in the CBA “in exchange for other benefits and wage concessions.”12 CP at 172 (emphasis added). The record clearly demonstrates that the maintenance rate was the subject of “real bargaining” during the contract negotiations between Keystone and the NMU, because the NMU had, at various times, *679requested that Keystone increase the maintenance rate. However, “[a]s part of the give and take process involved in the labor negotiations . . . the NMU has always conceded on its demand for a higher maintenance rate in exchange for other benefits and wage concessions from the employers in the agreements ultimately reached.”13 CP at 172 (emphasis added). Lundborg, having benefited from those other benefits and wage concessions, should not now be permitted to obtain a higher maintenance rate by the device of having this court judicially rewrite the CBA to provide maintenance in an amount that is satisfactory to the trial judge or jury. In doing just that, the majority, rather than promoting an equitable and legally accurate solution, enables Lundborg to “eat his cake,” in the form of substantial benefit and wage concessions, and “have it too,” in a higher maintenance rate.
This conclusion is buttressed by the fact that even the Third Circuit, the only circuit that heretofore has supported the argument Lundborg makes here, has conceded that policy considerations may no longer justify the refusal to enforce a specifically bargained for maintenance rate within a CBA. See Barnes v. Andover Co., L.P., 900 F.2d 630, 637 (3d Cir. 1990) (“The changed circumstances of the unionized seaman may undercut the rationale supporting the traditional right to maintenance and cure, at least for unionized seamen.”).
In sum, both federal law and our own case law strongly favor the enforcement of freely bargained for CBAs. In my opinion, the majority errs in refusing to follow the clear precedent established by the majority of the federal circuits, including the Ninth, which mandates that courts enforce and protect CBAs. This court should refuse to permit rewriting of a provision in the CBA to suit the trier of fact’s *680subjective notions of what is a fair maintenance rate. See Local 174, 369 U.S. at 103 (holding that the state courts are barred from applying individualized local rules when called upon to enforce CBAs); Al-Zawkari, 871 F.2d at 588 (“Courts generally have decided that it is more appropriate for the courts to enforce privately negotiated contractual rates of maintenance, rather than engaging in overt legislation of particular dollar figures.” (emphasis added)).
For the aforementioned reasons, I dissent.
Sanders, J., concurs with Alexander, J.
In addition, the California Court of Appeals considered the same issue that is before us and, citing the Ninth Circuit’s decision in Gardiner, enforced a $12 maintenance rate that was provided for in the CBA before that court. See Da Silva v. Pacific King, Inc., 195 Cal. App. 3d 1, 9, 240 Cal. Rptr. 395 (1987) (holding that the trial court “acted properly” in instructing the jury to only award the plaintiff maintenance at the rate specified in his contract).
In Gardiner, the Ninth Circuit Court of Appeals reasoned that “the national labor policy of encouraging the use and reliability of collective bargaining agreements, together with the realistic give and take occurring within the collective bargaining process, justify enforcement of the specified rate of maintenance contained in the agreement here.” Gardiner, 786 F.2d at 950. Moreover, the court held that “[o]ur national labor policy is built on the premise that employees can bargain most effectively for improvements in wages, hours, and working conditions by pooling their economic strength and acting through freely chosen labor organizations. Consequently, this court will not lightly embrace the repudiation of contractual obligations enumerated in a collective bargaining agreement and will ‘choose the rule that will promote the enforcement of collective bargaining agreements.’ ” Gardiner, 786 P.2d at 948 (emphasis added) (citations omitted) (quoting in part Toyota Landscape Co. v. Building Material & Dump Truck Drivers Local 420, 726 F.2d 525, 528 (9th Cir. 1984)). Significantly, as previously noted, the First, Fifth, and Sixth Circuits have each explicitly agreed with the holding in Gardiner. See Baldassaro, 64 F.3d at 212-13; Al-Zawkari, 871 F.2d at 588; Macedo, 868 F.2d at 522.
The following list contains examples of the benefits that the CBA mandated that Keystone provide to its seaman: several designated holidays; overtime, penalty, and holiday pay; a yearly cost of living increase; a “Pension and Welfare Plan” (CP at 86); a television set with at least a 21-inch screen; an entertainment system available to the television (or movie projector and screen) that can show full-length feature films, which the shipowner will exchange on a reasonable basis; bathing towels, soap, mattresses, linens, blankets, pillows, and matches; a washing machine, dryer, iron and ironing board; a messroom apart from the sleeping quarters which includes a clock, an electric refrigerator, toaster, dishes, and tables; a radio; and designated times for coffee breaks.
Significantly, Lundborg has not alleged that the CBA as a whole was unfair, or that his union failed to adequately represent him when it negotiated the CBA. In addition, the record contains no evidence that an unequal bargaining position existed between the NMU and Keystone. To the contrary, the record indicates that the maintenance rate, and the CBA as a whole, was freely negotiated between the NMU and Keystone.