Doyle v. Huntress, Inc.

United States Court of Appeals
For the First Circuit

No. 04-1242

TIMOTHY DOYLE; GREG HAGAMAN; BRIAN LAGUE;
ANTHONY W. RICHARDS; ERIC EDWARDS,

Plaintiffs-Appellees/Cross-Appellants,

v.

HUNTRESS, INC.; RELENTLESS, INC.,

Defendants-Appellants/Cross-Appellees,

GREG BRAY; KYLE GOODWIN,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

Before

Torruella, Lynch, and Lipez,
Circuit Judges.

Martin K. DeMagistris, with whom J. Renn Olenn and Olenn &
Penza, LLP, were on brief, for appellants.
Merlyn P. O'Keefe, with whom Packer & O'Keefe was on brief,
for appellees.

August 12, 2005
 TORRUELLA, Circuit Judge. The issue presented in this

interlocutory appeal is whether the 1983 codification of the

maritime safety laws in Title 46 creates a cause of action for lay

share fishermen under the "highest rate of wages" provision of 46

U.S.C. § 11107, and the liability provisions of 46 U.S.C. § 10601.

We hold that it does.

I.

This appeal arises out of a compensation dispute between

plaintiffs-appellees, Timothy Doyle, Greg Hagaman, Brian Lague,

Anthony W. Richards, and Eric Edwards ("the fishermen"), former

deckhands on the fishing vessels the PERSISTENCE and RELENTLESS,

and the corporate owners of the fishing vessels, defendants-

appellants Huntress, Inc. and Relentless, Inc. The fishermen

brought suit against the vessel owners in the United States

District Court for the District of Rhode Island, alleging that the

vessel owners failed to comply with 46 U.S.C. § 10601 (1988), which

requires, among other things, that the owners of a fishing vessel

make a written fishing agreement with each seaman employed prior to

the voyage. Plaintiffs claimed statutory damages under a companion

statute, 46 U.S.C. § 11107 (1983). The defendant owners moved for

summary judgment, alleging that (1) their lay share fishing

agreements did not violate section § 10601, (2) § 11107 does not

create a remedy for lay share fishermen, and (3) plaintiffs' claims

are barred by waiver and laches. The district court concluded that

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the vessel owners violated the requirements of § 10601, Doyle v.

Huntress, 301 F. Supp. 2d 135, 145 (D.R.I. 2004), and concluded

that "§ 11107 applies to lay-share fishermen, and may be utilized

by Plaintiffs as a statutory default wage in place of their void

contracts with Defendants." Id. at 148. The district court thus

granted summary judgment in favor of the fishermen as to the

application of §§ 10601 and 11107 to their claims. However, the

district court found that genuine issues of material fact remained

in dispute as to the defendants' defenses of laches and waiver,

thus necessitating trial. The district court stayed the

proceedings below pending resolution of this interlocutory appeal.

Plaintiffs-appellees served as deckhands and crewmen

aboard the fishing vessels PERSISTENCE and RELENTLESS at various

times from 1993 until 2000. The vessels are 125-foot, steel hulled

freezer trawlers, weighing in excess of twenty tons each, and

operating out of the Port of Davisville in North Kingstown, Rhode

Island.

As is typical in the fishing industry, the vessel owners

used the "lay share system" to compensate the fishermen they

employed. The owners generally employed a crew of ten to thirteen

per trawler for commercial fishing voyages along the New England

and mid-Atlantic coastline. Upon completion of a fishing voyage

the vessel owners sold the catch and deducted the trip expenses

from the profit. The remaining profit was then be divided, with

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the vessel owner retaining more than half of the profits -- usually

between 58 and 61 percent -- and the remaining proceeds being

divided among the crewmen in the form of "lay shares."

The share or fraction of a share each crewman received

was determined by the captain of the vessel, based on the

fisherman's skills and performance on the voyage. The size of the

share was not a product of any written agreement with the fisherman

made prior to leaving port, and no fisherman was told before the

trip exactly what percentage of the net profit he will receive at

the end of the voyage. This determination was left to the

discretion of the captain based on the performance of the fisherman

during the voyage. After the captain calculated the "share" due

each fisherman, the vessel owners issued a check in that amount.

More experienced and skilled crewmen are better able to perform

highly specialized functions, making them more valuable on a

voyage. Thus, fishermen with greater experience received a larger

share of the profits than less experienced crewmen.

II.

We begin with the question of appellate jurisdiction.

Although both parties agree that jurisdiction exists in this court

to review the district court's order granting partial summary

judgment, we have an obligation to inquire sua sponte into our

jurisdiction over the matter. Florio v. Olson, 129 F.3d 678, 680

(1st Cir. 1997).

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 The underlying action is still pending in the district

court and has been stayed until we resolve this question. Thus,

the district court's decision and order granting summary judgment

to the plaintiffs on their § 11107 claim is not a "final decision"

in the sense required by 28 U.S.C. § 1291 (conferring appellate

jurisdiction over "final decisions" of the district courts).

However, Congress has created statutory exceptions to the final

judgment rule, including 28 U.S.C. § 1292(a)(3), which allow

immediate appeal from some interlocutory orders. Section 1292

provides that "(a) [T]he courts of appeals shall have jurisdiction

of appeals from: . . . (3) Interlocutory decrees of such district

courts or the judges thereof determining the rights and liabilities

of the parties to admiralty cases in which appeals from final

decrees are allowed.". See Martha's Vineyard Scuba Headquarters,

Inc. v. Unidentified, Wrecked and Abandoned Steam Vessel, 833 F.2d

1059, 1062-64 (1st Cir. 1987). An interlocutory appeal under

§ 1292(a)(3) applies to any order that conclusively determines the

liability of a party, even if the order leaves unresolved an issue

which may ultimately preclude recovery by a particular plaintiff.

In re S.S. Tropic Breeze, 456 F.2d 137, 139 (1st Cir. 1972). Three

prerequisites must be met for this court to have jurisdiction to

consider this interlocutory appeal pursuant to § 1292(a)(3): "(1)

the underlying case must be an admiralty case 'in which appeals

from final decrees are allowed;' (2) the appeal must be from an

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interlocutory order or decree of the district court; and (3) the

order or decree must have determined 'the rights and liabilities of

the parties.'" Wingerter v. Chester Quarry Co., 185 F.3d 657, 663

(7th Cir. 1998) (citing Foulk v. Donjon Marine Co., 144 F.3d 252,

255 (3d Cir. 1998); Martha's Vineyard Scuba Headquarters, 833 F.2d

at 1063).

A. Admiralty Case

The case at hand arises in admiralty and concerns the

interpretation of two statutes that regulate the employment of

seamen, 46 U.S.C. § 10601 and § 11107. "Whether a case is an

admiralty case turns on whether the plaintiff properly designated

the action as an admiralty case." Wingerter, 185 F.3d at 664.

Federal Rule of Civil Procedure 9(h) governs the designation of

admiralty claims:

A pleading or count setting forth a claim for
relief within the admiralty and maritime
jurisdiction that is also within the
jurisdiction of the district court on some
other ground may contain a statement
identifying the claim as an admiralty or
maritime claim for the purposes of Rules
14(c), 38(e), 82, and the Supplemental Rules
for Certain Admiralty and Maritime Claims.
. . . A case that includes an admiralty or
maritime claim within this subdivision is an
admiralty case within 28 U.S.C. § 1292(a)(3).

The district court found that it had jurisdiction over the case

below pursuant to 28 U.S.C. § 1331, Huntress, 301 F. Supp. 2d at

140, and also confirmed that "[t]his case concerns a matter of

admiralty law," id. at 140; see 28 U.S.C. § 1333. The district

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court specifically noted that plaintiffs alleged subject matter

jurisdiction by virtue of this case arising in admiralty. Id. at

140 n.3. As the underlying case was properly designated an

admiralty case, it is also an admiralty case for purposes of 28

U.S.C. § 1292(a)(3). See Fed. R. Civ. P. 9(h).

B. Interlocutory Order

The district court's decision and order of January 13,

2004 was plainly interlocutory because it leaves unresolved the

defenses of laches and waiver.

C. Rights and Liabilities

Finally, to "ascertain whether, for purposes of § 1292

(a)(3), the substantive rights and liabilities of these adversaries

were sufficiently determined by the order," Martha's Vineyard, 833

F.2d at 1064, we must identify a decision on the merits of the

claims or defenses underlying the dispute which determines

substantive rights. Id.

Although the district court's decision and order did not

fully resolve the plaintiffs' claims regarding their ultimate

damages, it did conclusively determine the substantive grounds of

the complaint. The district court determined that defendants (the

vessel owners) had violated the requirements of § 10601 in the

fishing agreements they entered into with plaintiffs (the

fishermen). Huntress, 301 F. Supp. 2d at 146. In addition, the

court determined that § 11107 applies to lay share fishermen and

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therefore could "be utilized by Plaintiffs as a statutory default

wage in place of their void contracts with Defendants." Id. at

148. Thus, the district court found that plaintiffs were

statutorily entitled "to recover 'the highest rate of wages at the

port from which the seaman was engaged or the amount agreed to be

given the seaman at the time of engagement, whichever is higher.'"

Id. at 146 (quoting 46 U.S.C. § 11107). Therefore, the district

court granted partial summary judgment to plaintiffs as to the

application of § 10601 and § 11107. We are satisfied that the

district court's ruling meets the substantive "rights and

liabilities" prerequisite of § 1292(a)(3). We conclude, therefore,

that we have jurisdiction to hear this interlocutory appeal.

III.

We now turn to the merits. The question before this

court on interlocutory appeal is whether the 1983 partial

codification of the maritime laws created a cause of action for

"lay share" fishermen under the "highest rate of wages" provision

of 46 U.S.C. § 11107, and the liability provisions of 46 U.S.C.

§ 10601. A question of statutory construction presents a purely

legal question; therefore, we review de novo. See Strickland v.

Comm'r Maine Dep't of Human Serv., 96 F.3d 542, 545 (1st Cir.

1996).

Section 11107 provides as follows:

An engagement of a seaman contrary to a law of
the United States is void. A seaman so engaged

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 may leave the service of the vessel at any
time and is entitled to recover the highest
rate of wages at the port from which the
seaman was engaged or the amount agreed to be
given the seaman at the time of engagement,
whichever is higher.

46 U.S.C. § 11107 (1983) (emphasis added).

Ordinarily, "[t]he starting point in discerning

congressional intent is the existing statutory text." Lamie v.

United States Tr., 540 U.S. 526, 534 (2004). "'[W]hen the

statute's language is plain, the sole function of the courts -- at

least where the disposition required by the text is not absurd --

is to enforce it according to its terms.'" Dodd v. United States,

--- U.S. ---, 125 S. Ct. 2478, 2483 (2005) (quoting Hartford

Underwriters Ins. Co. v. Union Planter's Bank, N.A., 530 U.S. 1, 6

(2001)).

However, it is well established that there is a

presumption against change in codification statutes. "[I]t will

not be inferred that Congress, in revising and consolidating laws,

intended to change their effect, unless such intention is clearly

expressed." Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S.

222, 227 (1957); see also United States v. Ryder, 110 U.S. 729, 740

(1884) (same); Tidewater Oil Co. v. United States, 409 U.S. 151,

162 (1973) ("[T]he function of the Revisers of the 1948 Code was

generally limited to that of consolidation and codification. . . .

[c]onsequently, a well-established principle governing the

interpretation of provisions altered in the 1948 revision is that

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'no change is to be presumed unless clearly expressed.'") (quoting

Fourco Glass Co., 353 U.S. at 227)).

In this case, defendants-appellants contend that we must

look beyond the plain meaning of the text of the statute to

legislative history because the exclusionary companion statute to

§ 11107's predecessor -- which expressly excluded seamen entitled

to earn lay shares from entitlement to the "highest rate of wages"

-- was repealed in the course of the 1983 partial recodification of

Title 46. See 46 U.S.C. § 544 (repealed 1983) (excluding any

vessel "where the seamen are by custom or agreement entitled to

participate in the profits or result of a cruise, or voyage" from,

among other wage statutes, the "highest rate of wages" predecessor

to § 11107). The repeal of this exemption constitutes a major

change, which defendants-appellants argue should not be inferred.

Defendants-appellants point out that all of the other exemptions

that were previously under § 544 were recodified in other

locations, and § 11107 is the only wage statute that applies to

share fishermen in the recodification. Therefore, defendants-

appellants conjecture that this exemption must have been

inadvertently deleted during the 1983 codification.

Given the presumption against change in codification

statutes and the significant, unannounced change Congress made in

the 1983 recodification to the application of the "highest rate of

wages" provision to seamen earning lay shares, we agree that it is

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appropriate to go beyond the plain meaning of the text of the

statute and consider the legislative history.

Another significant factor that we must consider in our

construction of this statute is the presumption in favor of seamen.

"[L]egislation for the benefit of seamen is to be construed

liberally in their favor." McMahon v. United States, 342 U.S. 25,

27 (1951). See also Isbrandsten Co. v. Johnson, 343 U.S. 779, 782

(1952) ("Whenever congressional legislation in aid of seamen has

been considered here since 1872, the Court has emphasized that such

legislation is largely remedial and calls for liberal

interpretation in favor of the seamen."). This holds true for

statutes concerning seamen's wages and penalty wages. "'[T]he

maritime law by inveterate tradition has made the ordinary seaman

a member of a favored class. He is a 'ward of the admiralty,'

. . . . Discrimination may thus be rational in respect of remedies

for wages.'" Isbrandsten, 343 U.S. at 782-83 (quoting Warner v.

Goltra, 293 U.S. 155, 162 (1934)). See also Forster v. Oro

Navigation Co., 228 F.2d 319, 319-20 (2d Cir. 1955) (penalty wages

"statute, designed to protect seamen, must be liberally interpreted

for their benefit").

A. History of the "highest rate of wages" provision

The substance of the "highest rate of wages" provision

was not new when § 11107 was enacted in 1983. In 1840, Congress

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enacted the statute that eventually became 46 U.S.C. § 11107.1 Act

of July 20, 1840, ch. 48, 5 Stat. 395 (current version at 46 U.S.C.

§ 11107 (1983)).2 This statute entitled all seamen engaged

contrary to the provisions of any act of Congress to the highest

wage paid at the port of engagement, or to the agreed wage.3 At

that time, there was no provision excluding fisherman employed

aboard lay share vessels from this "highest rate of wages" statute.

1
Title 46 actually contains two "highest rate of wages"
provisions that are substantially the same: 46 U.S.C. §§ 10508 and
11107. The predecessor to § 10508 was one of the first acts of
Congress in 1790 and applied to merchant ships operating in the
coastwise shipping industry. Act of July 20, 1790, ch. 29, § 1, 1
Stat. 131 (current version at 46 U.S.C. § 10508 (1996)). It
provided the highest rate of wages to a seaman employed on a voyage
without an agreement satisfying the requirements of the predecessor
to the current § 10502. Id. By its express terms, the 1792
statute remained in force for only seven years. Congress extended
it in 1800 and eventually replaced it in 1813 with a successor
statute that has remained substantially unchanged ever since. Act
of June 19, 1813, ch. 2, § 1, 3 Stat. 2. From its inception, this
"highest rate of wages" provision applied only to the coastwise
merchant shipping industry and is not relevant to this dispute.
2
The 1840 statute, ch. 48, 5 Stat. 394, was revised in 1872,
becoming R.S. 4523. In 1928 Congress codified the statute as 46
U.S.C. § 578, the immediate predecessor to § 11107.
3
The language of the 1840 Act has not changed much over the
years. The 1840 Act provided:

All shipments of seamen, made contrary to the provisions
of this and other acts of Congress, shall be void; and
any seaman so shipped may leave the service at any time,
and demand the highest rate of wages paid to any seaman
shipped for the voyage, or the sum agreed to be given him
at his shipment.

5 Stat. at 395.

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 During the mid- to late-1800s, however, several federal

courts concluded that a lay share is not a wage within the purview

of the "highest rate of wages" statutes. See Caffray v. The

Cornelia M. Kingsland, 25 F. 856, 858-59 (S.D.N.Y. 1885); The

Ianthe, 12 F. Cas. 1145 (D. Me. 1856). Then, as part of the 1872

Shipping Commissioners Act, which imposed new regulations on the

burgeoning foreign and intercoastal shipping industry, Congress

excluded share-based vessels from multiple statutes, including the

highest rate of wages statute. See Shipping Commissioners Act of

1872, ch. 322, 17 Stat. 262 (1872) (repealed). These exemptions

were later consolidated in § 544. See 46 U.S.C. § 544 (repealed

1983) (excluding coastwise vessels and any boat "where the seamen

are by custom or agreement entitled to participate in the profits

or result of a cruise, or voyage" from many regulatory statutes

reserved for vessels engaged in foreign shipping, including the

"highest rate of wages" predecessor to § 11107).4 Thus, prior to

1983, lay share vessels were explicitly excluded from the "highest

rate of wages" provision of the predecessor statute to § 11107.

More than one hundred years later, as part of its on-

going effort to recodify all of the United States Code, Congress

passed an act recodifying the maritime statutes in Title 46. In

the course of this revision, the exclusionary statute, § 544, was

4
Section 544 succeeded an older exemptive revised statute that
was adopted in 1874. Act of Aug. 9, 1874, c. 260, 18 Stat. 64.

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repealed. It was replaced, for the most part, however, by

individual exclusions where appropriate. The exclusion of share-

based vessels from the "highest rate of wage" statute, however, was

not replaced.

B. Legislative Intent

The "presumption that codification is not intended to

make changes of substantive law . . . is particularly true where

. . . the legislative history shows a positive disclaimer of any

such intent." United States v. Standard Accident Ins. Co., 280

F.2d 445, 447 (1st Cir. 1960) (citing United States v. Sischo, 262

U.S. 165, 168-69 (1923); Washington v. Maricopa County, Ariz., 152

F.2d 556, 559 (9th Cir. 1945)). However, we would be hard put to

find that Congress showed a "positive disclaimer of any such

intent" in this case. This circuit previously noted that the

signals in the legislative history of the revision are mixed.

United States v. Rivera, 131 F.3d 222, 226 (1st Cir. 1997). "[T]he

stated purpose of the legislation was simply to recodify in an

organized fashion the then-existing law relating to the safety of

vessels and protection of seamen."5 Id. Both the Senate and House

Reports emphasize repeatedly that no substantive changes of a

5
House Report No. 98-338 states: "The ultimate aim of this
legislation is three-fold: to make maritime safety and seamen
protection law easier for the Coast Guard to administer, to make it
less cumbersome for the maritime community to use, and to make it
more understandable for everyone involved." H.R. Rep. No. 98-338,
at 113, reprinted in 1983 U.S.C.C.A.N. 924, 925.

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controversial nature were intended. See S. Rep. No. 98-56, at 1

("The purpose of S. 46, as reported, is to restate without

substantive changes of a controversial nature, the existing laws .

. . governing commercial shipping and navigation and recreational

boating, principally contained in title 46 of the U.S. Code.");

H.R. Rep. No. 98-338, at 113, reprinted in 1983 U.S.C.C.A.N. 924

(same). The Senate Report even cited to Supreme Court case law

discussing the presumption against substantive change as follows:

"In a codification statute . . . the courts uphold the . . .

presumption: no change in law is intended unless clearly

expressed." S. Rep. No. 98-56, at 10 (citing Fourco Glass Co., 353

U.S. at 227; Tidewater Oil Co., 409 U.S. at 162; Muñiz v. Hoffman,

422 U.S. 454, 467-74 (1975)).

Despite these disclaimers, Congress anticipated questions

about the substantive revisions made to the laws.

The committee wants to make it clear . . .
that the bill . . . does in fact make a great
many substantive changes to the present law.
Those changes are all either minor changes,
adjustments, or modifications, or they are
more significant changes to which the
Committee received no objection and which the
Committee believed would enhance the clarity
and effectiveness of the law and the [sic]
generally accepted by the industry. Thus, if a
comparison of the language of this bill with
the existing law shows that a substantive
change has resulted, it should be understood
that that change was intended by the
Committee. The Committee intends and hopes
that the interpretation of the maritime safety
laws as codified and enacted by this bill will
be based on the language of the bill itself.

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 The bill, as reported, is based on that
premise. There should, therefore, be little or
no occasion to refer to the statutes being
repealed in order to interpret the provisions
of this bill. The Committee also feels, as
the courts have held, that the literal
language of the statute should control the
disposition of cases. There is no mandate in
logic or in case law for reliance on
legislative history to reach a result contrary
to the plain meaning of the statute,
particularly where that plain meaning is in no
way unreasonable.

H.R. Rep. No. 98-338, at 120, reprinted in 1983 U.S.C.C.A.N. 924,

932 (emphasis added).

Appellants point to Carbo v. United States, 364 U.S. 611

(1961), in which the Supreme Court rejected the claim that Congress

had substantively changed the law in a new codification statute,

explaining that "[a]fter almost two hundred years, we cannot now

say it has been abandoned by a Congress which expressly said it

intended to make no substantive changes." Id. at 620. But in the

present case, Congress expressly stated that it had "in fact ma[d]e

a great many substantive changes to the present law." H.R. Rep.

No. 98-338, at 120. Thus, although Congress disclaimed any intent

to make substantive, controversial changes, Congress recognized

that it made many substantive changes and stated that where "the

existing law shows that a substantive change has resulted, it

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should be understood that that change was intended by the

Committee." H.R. Rep. No. 98-338, at 120.6

While the direction in the House Report is clearly to

rely on the plain meaning when interpreting the new statutes, the

Report also indicates that "the committee intended to make no

substantive changes that were objected to by any affected party or

that the committee felt would be a significant change in maritime

policy or that would adversely affect any rights, benefits, or

duties of those impacted by this bill." Id. at 120 (emphasis

added). The vessel owners argue that repeal of the exclusion of

lay share fishermen from the "highest rate of wages" provision

adversely affects the owners of commercial fishing vessels.

However, although the vessel owners cite the testimony of a

representative of the fishing industry before Congress, they have

not identified any instance in which any affected party objected to

the repeal of this exclusion as the revision wound its way through

Congress.7 As Congress stated:

6
In addition, there is precedent "that where a revising statute,
or one enacted for another, omits provisions contained in the
original act, the parts omitted cannot be kept in force by
construction, but are annulled." Stewart v. Kahn, 78 U.S. 493, 502
(1870).
7
In a brief statement before Congress, James P. Walsh,
representing the American Tuna Boat Association, endorsed the Act
but warned that merchant marine policy is a complicated area of law
and "encourage[d] the committee to follow the implementation of the
statute to assure that there is in fact no major inadvertent change
or no major modifications through administrative interpretation."
Joint Hearing of Subcommittees on Coast Guard and Navigation and

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 The maritime community has been aware of and
has actively participated in this revision of
the maritime safety laws since 1980 when the
project was in its initial stages within the
Coast Guard. Provisions in the early draft
that were objectionable have been removed or
altered. The remaining substantive changes
are deemed noncontroversial by virtue of the
fact that there has been no objection raised
to them during the two and one half years in
which the maritime community has examined and
commented on each successive draft.

H.R. Rep. 98-338, at 119-20 (emphasis added).

Because the legislative history provides mixed signals,

we do not apply the presumption of recodification that Congress did

not intend substantive changes.

C. Scrivener's error?

If appellants believe that Congress inadvertently removed

the provision during the course of the 1983 revision, then their

proper course of action would be to request that Congress correct

the alleged error by re-enacting the exclusionary language.

Appellants-defendants cite to the recent Supreme Court case, Koons

Buick Pontiac GMC, Inc. v. Nigh, --- U.S. ---, 125 S. Ct. 460

(2004), and ask us to follow the recommendation of the concurring

opinion of Justices Stevens and Breyer by following "common sense"

rather than giving effect to a "scrivener's error." Id. at 470

(Stevens, J., concurring). However, "[i]f Congress enacted into

law something different from what it intended, then it should amend

Merchant Marine, Committee on Merchant Marine and Fisheries,
April 28, 1983, 493-94.

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the statute to conform it to its intent. It is beyond our province

to rescue Congress from its drafting errors, and to provide for

what we might think . . . is the preferred result." Lamie v.

United States Trustee, 540 U.S. 526, 542 (2004) (internal quotation

marks and alteration omitted). See also Koons Buick, 125 S. Ct. at

476 (Scalia, J., dissenting) (same).

D. The Common Law

Defendants-appellants also argue that the statutes at

issue here do not create a cause of action under the "highest rate

of wages" provision for lay share fishermen because the common law

principle was, and still remains, that statutory wage provisions do

not generally apply to fishermen earning lay shares. In support of

this argument, the vessel owners point to two nineteenth century

cases that declined to apply the old "highest rate of wages"

provision to fishermen earning lay shares, despite the absence of

a statutory exclusion for lay share fishermen. See, e.g., The

Cornelia M. Kingsland, 25 F. at 857-61 (treating "fishermen"

differently than "seamen"); The Ianthe, 12 F. Cas. at 1145.

In The Cornelia M. Kingsland, several lay fishermen

brought a claim under a predecessor to § 11107 -- § 4523 of the

Revised Statutes -- seeking the "highest rate of wages." The

Southern District of New York held against the fishermen because it

found that (1) the "highest rate of wages" provision was intended

to apply to seamen, and that "fishermen" had been treated as

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distinct from seamen in all legislation; (2) the language of the

provision seemed more appropriate to a seaman earning a "sum

agreed" upon rather than an agreement for a "lay" subject to

general average distribution; and (3) that engaging seamen through

oral contracts was not "contrary to the provisions of any act of

Congress" because no act of Congress required that agreements with

fishermen be in writing at that time. The Cornelia M. Kingsland,

25 F. at 857-61. In The Ianthe, lay share fishermen made a similar

claim and the District Court of Maine also found that the Act made

no provision for fishermen employed without a written agreement.

12 F. Cas. at 1145.

Times have changed, and we see no reason to rely on these

cases in our decision today. First, this court observed as early

as 1899 that "[f]ishermen are seamen, having uses and customs

peculiar to their business, but are at the same time, except as

modified by their peculiar contracts, express or implied, protected

by law as other seamen are. For their wages they can look to the

vessel, her master, and ordinarily her owners." The Carrier Dove,

97 F. 111, 112 (1st Cir. 1899); see also Cromwell v. Slaney, 65

F.2d 940, 941 (1933) (same); Tran v. Captain Glyn, Inc., 909 F.

Supp. 727, 732 (D. Haw. 1995) ("Fishermen are seamen under the

Jones Act, for the purpose of maintenance and cure, and wage

relief."). Second, as we discuss more fully below, we do not find

that the disparity between determining the amount a wage-earning

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seaman and a lay share-earning fisherman should receive bars

application of the "highest rate of wages" provision to lay share

fishermen. We agree with the Ninth Circuit that § 11107 should be

construed as "entitl[ing] the wronged seaman to recover either his

promised wages or the highest rate of wages of a seaman of

comparable rating at the port from which he was engaged, whichever

is higher." TCW Special Credits v. Chloe Z Fishing Co., 129 F.3d

1330, 1334 (1997) (emphasis added). Third, unlike what the court

found in The Cornelia M. Kingsland, there is a violation of an act

of Congress in this case; thus the fishermen were engaged contrary

to law. Section 10601 is the liability section, and it clearly

lays out requirements for fishing agreements.8 The district court

8
During the time the fishermen were employed aboard the
PERSISTENCE and RELENTLESS, § 10601 provided that:

(a) Before proceeding on a voyage, the master or
individual in charge of a fishing vessel, fish processing
vessel, or fish tender vessel shall make a fishing
agreement in writing with each seaman enployed [sic] on
board if the vessel is--
(1) at least 20 gross tons ...; and
(2) on a voyage from a port in the United
States.
(b) The agreement shall also be signed by the owner of
the vessel.
(c) The agreement shall--
(1) state the period of effectiveness of the
agreement;
(2) include the terms of any wage, share, or
other compensation arrangement peculiar to the
fishery in which the vessel will be engaged
during the period of the agreement; and
(3) include other agreed terms.

46 U.S.C. § 10601 (1988).

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determined that the vessel owners failed to meet those

requirements.

Furthermore, the statutes considered in The Cornelia M.

Kingsland and The Ianthe, which are older versions of § 10601 and

§ 11107, have been repealed and replaced with new code sections

multiple times. As the Alaska Supreme Court noted in Bjornsson v.

U.S. Dominator, Inc., reliance on the older statutes is misplaced.

863 P.2d 235, 239 (Alaska 1993). Therefore, rather than relying on

these outdated cases, we focus on interpreting the applicable

statue, § 11107.

E. Our reading of the statute

The most natural meaning of the text of § 11107 is that

it declares "[a]n engagement of a seaman contrary to a law of the

United States is void," and provides remedies for the seaman. 46

U.S.C. § 11107.

The "cardinal rule [is] that a statute is to be read as

a whole . . . , since the meaning of statutory language, plain or

not, depends on context." Conroy v. Aniskoff, 507 U.S. 511, 515

(1993). Section 11107 is located in Part G, "Merchant Seaman

Protection and Relief," of Subtitle II of Title 46. "The

provisions of Part G form an interlocking whole and are exclusively

concerned with regulating the relationship between seamen and the

masters and owners of the vessels in which they set out to sea."

Rivera, 131 F.3d at 233 (Torruella, J., concurring). Reading the

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"highest rate of wages" provision in the context of the rest of

Part G, it seems appropriate that the provision should be applied

to violations of lay share fishing agreements.

The most natural reading of the term "seaman" in § 11107

is that "seaman" encompasses lay share fishermen. Section 11107

provides remedies for a "seaman" who is engaged contrary to law.

Section 10101(3) of Part G defines "seaman" as "an individual . . .

engaged or employed in any capacity on board a vessel." 46 U.S.C.

§ 10101(3). This definition appears to encompass fishermen. The

vessel owners do not contest the fact that the fishermen are

employees of the vessel and serve as crewmen.

In addition, "unlike some other sections within Part G,

which specifically exclude lay-share fishermen, § 11107 includes no

such provision indicating Congressional intent to limit the

statute's application to merchant seamen." Huntress, 301 F. Supp.

2d at 146 (citations omitted).

Furthermore, § 10601, which contains requirements for

fishing agreements, describes lay share fishermen as seamen.

Section 10601 is a liability section and § 11107 is tied to § 10601

as a remedial provision. Section 10601 is also located in Part G.

It was enacted in 1988 when Congress passed the Commercial Fishing

Industry Vessel Safety Act of 1988, an Act with broad remedial

purposes. By its terms, § 10601 provides that "seamen" are to be

protected by the statute. The section specifically includes lay

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share fishermen by providing that "[t]he agreement shall . . .

include the terms of any wage, share, or other compensation

arrangement peculiar to the fishery in which the vessel will be

engaged." 46 U.S.C. § 10601(c)(2) (emphasis added).

Thus, § 10601 places certain requirements on fishing

agreements, and if the vessel owners or masters engage a fisherman

-- regardless of whether he is earning lay shares or wages --

contrary to the provisions of § 10601, there should be a remedy.

Yet, in this instance, where the fishermen have already received a

lay share portion of the proceeds from the fishing voyages they

participated in, there does not appear to be any other real remedy

for the vessel owners' failure to comply with § 10601, absent

§ 11107.

Appellants contend that the vessel owners' loss of the

benefit of a limited statute of limitations when the fishing

contracts do not comply with § 10601 is the only remedy available

to the fishermen. See 46 U.S.C. § 10602(a) (1988) ("When fish

caught under an agreement under section 10601 of this title are

delivered to the owner of the vessel for processing and are sold,

the vessel is liable in rem for the wages and shares of the

proceeds of the seamen. An action under this section must be

brought within six months after the sale of the fish."). But,

where, as here, the fishermen have already been paid a lay share

pursuant to an invalid agreement, the vessel owners' loss of this

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six-month limitation fails to provide a remedy. Under the view

that the only penalty is the removal of the six month statute of

limitations, the fishermen will get nothing beyond that which they

have already received –- lay shares paid in accordance with the

invalid contracts. We also note that there is nothing that says

the statute of limitations provision in § 10602(a) is intended to

be the exclusive remedy for a violation of § 10601.

Thus, reading § 11107 together with § 10601, we find that

the "highest rate of wages" provision is a cause of action

available to lay share fishermen when their fishing agreements are

contrary to law. Both the Ninth Circuit and Alaska Supreme Court

have reached the same conclusion. See Flores v. American Seafoods

Co., 335 F.3d 904, 912 (9th Cir. 2003) (stating that an agreement

that violates the requirements of § 10601 "will trigger the

application of 46 U.S.C. § 11107); TCW Special Credits, 129 F.3d at

1333 ("Fishermen hired without articles, contrary to the provisions

of section 10601, may avail themselves of the protection afforded

seamen by 46 U.S.C. § 11107."); Seattle-First Nat'l Bank v.

Conaway, 98 F.3d 1195, 1198 (9th Cir. 1996) (Section "11107

provides for a penalty against vessel owners who employ seamen

without written agreements in violation of § 10601."); Bjornsson,

863 P.2d at 240 (holding that §§ 10601 and 11107 apply to lay share

fishermen and that "[l]ay share arrangements must be written down

to avoid penalties under section 11107").

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 IV.

For the reasons stated, we hold that § 11107 applies to

lay share fishermen.

Affirmed.

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