Case No. C04-0727L.
March 10, 2005
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on a motion for summary judgment filed by defendant Maersk Line Limited ("Maersk"). (Dkt. #17). Maersk argues that plaintiff's claims against it are barred by the exclusivity provision of the Suits in Admiralty Act of 1920, 46 U.S.C. App. §§ 741-752 (the "SAA").
For the reasons set forth below, the Court denies the motion for summary judgment.
A. Background Facts.
The following facts are either not in dispute, or, where a dispute exists, the facts are viewed in the light most favorable to plaintiff Ali M. Abdulla ("Abdulla"), the nonmoving party. Abdulla brings a claim for seaman's wages against Maersk, alleging that it wrongfully withheld $1,628.29 from the wages he earned at sea.
Beginning in November 2002, Abdulla worked as a steward's assistant on the vessel CPL. LOUIS J. HAUGE, JR. (the "HAUGE"). Abdulla was dispatched to the HAUGE by his labor union, the Seafarers International Union ("SIU"). The HAUGE is a privately owned cargo ship that was time chartered to the U.S. government during the relevant time period. Although the vessel was chartered from the Expander Transport Corporation ("Expander"), Maersk, through an operating contract with Expander, performed most of Expander's duties under its government contract.
A traditional time charter allows the charterer to use the vessel for a specified period of time. The vessel owner retains primary possession and control.
During the first three months of 2003, the HAUGE was a Maritime Prepositioning Ship ("MPS") assigned to Maritime Preposition Ship Squadron 2 of the Military Sealift Command ("MSC") of the U.S. Navy. As an MPS, the HAUGE was engaged in transporting equipment and supplies for the U.S. military, as directed by the MSC.
In January 2003, shortly before the start of the war with Iraq, the MSC informed Maersk that it required vaccinations for merchant mariners on ships controlled by the MSC, including the HAUGE, as part of the government's smallpox and anthrax vaccination program. The MSC subsequently informed the vessel's master, Captain Glenn Bond, that when the ship arrived in Souda Bay, Crete, MSC medical personnel would board the ship to administer the vaccinations. The MSC also informed Captain Bond that any crew members who did not receive the vaccinations would have to be removed from the HAUGE.
Abdulla argues that the MSC merely requested, but did not require, that all HAUGE seamen receive the vaccines. The Court assumes Abdulla's version is correct for purposes of this motion.
The HAUGE called at the U.S. naval base in Crete in February 2003. At that time, Captain Bond ordered the crew members to receive vaccinations for smallpox and anthrax. The Captain informed the crew that if they refused, they would be immediately terminated for cause, have formal charges in the vessel's official log book entered against them, and forfeit previously earned wages. Plaintiff's Opposition at 4. One crew member who accepted the vaccines alleges that he subsequently became seriously ill as a result. See Francis v. Maersk Line, Ltd., No. CV03-2898C (W.D. Wash.).
Abdulla refused the vaccines. Captain Bond then dismissed Abdulla for cause, entered formal charges against him in the vessel's log book, and deducted from his wages the cost of repatriating him to the United States. Pursuant to agreements between Maersk and the SIU, a mariner was required to serve for at least four months before his repatriation expenses would be paid for him. It is undisputed that Abdulla served less than four months, and that Abdulla was paid all wages earned, less his repatriation costs.
Abdulla brings claims against Maersk to recover earned wages under 46 U.S.C. § 10313(f), attorney's fees, a month's unearned wages pursuant to 46 U.S.C. § 10318, and penalty wages under 46 U.S.C. § 10313(g), which provides that if a mariner's wages are improperly withheld, "the master or owner shall pay to the seaman two days' wages for each day payment is delayed." Abdulla alleges that the United States is liable because Maersk was acting as its agent. See Amended Complaint at ¶¶ 32, 33.
B. Summary Judgment Standard.
Summary judgment is proper if the moving party shows that "there is no genuine issue as to any material fact and that [it] is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A court should consider all of the material evidence and determine whether reasonable persons could reach but one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A court must construe all facts in favor of the non-moving party. Id. at 255.
1. Suits in Admiralty Act Standards.
Maersk argues that the United States is the exclusive defendant in this case, pursuant to the SAA. The exclusivity provision of the SAA states that "where a remedy is provided by this Act, it shall hereafter be exclusive of any other action by reason of the same subject matter against the agent or employee of the United States . . . whose acts or omissions gave rise to the claim." 46 U.S.C. App. § 745. The purpose of the statute is to substitute an action in personam for a proceeding in rem against the vessel, thereby preventing the seizure of vessels owned or operated by the government. See, e.g., Eastern S.S. Lines v. U.S., 187 F.2d 956 (1st Cir. 1951).
Pursuant to the statutory language of Section 745, the first step in the inquiry is to determine whether the SAA provides a remedy. Section 742 provides, "In cases where . . . if a private person or property were involved, a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States." It is important to note that the SAA itself does not provide a remedy. "Rather, the Act merely acts to waive the United States' immunity so as to furnish a jurisdictional hook on which to hang a traditional admiralty claim." See Williams v. Central Gulf Lines, 874 F.2d 1058, 1061 (5th Cir. 1989) (internal citation and quotation omitted). If a court finds that a remedy exists against the United States, it must then analyze whether an agency relationship existed, and whether the claim against the private party is of the same subject matter as the claim provided against the United States.
As an initial matter, it is worth noting that caselaw regarding the SAA is scant and sometimes difficult to reconcile. The vast majority of cases involving the SAA involve physical injuries and claims for maintenance and cure. The parties have not cited, and the Court has not located, any published decision applying the exclusivity provision to immunize a private employer, operating a privately owned vessel, from a wage claim by one of its employees. Cf. Padro v. Vessel Charters, Inc., 731 F. Supp. 145, 149 (S.D.N.Y. 1990) ("Indeed, it would be anomalous to allow VCI, as a private ship owner and private employer, to relieve itself of any obligations to its crew by entering into a contract with a third-party, albeit the United States."). Furthermore, the parties have presented no evidence that Congress intended the exclusivity provision to apply to this situation. Against this backdrop, the Court analyzes Maersk's motion.
2. Remedy Provided by the SAA.
The Williams court applied a two-part test to determine whether a remedy against the United States is provided by the SAA when the vessel is privately owned and the United States is a time charterer. First, the court considered whether the government consented to suit given the facts at hand, also called the "jurisdictional hook" inquiry. Williams, 874 F.2d at 1061. Second, the court considered "whether the party attempting to invoke the exclusivity provision as a defense to suit has shown that a traditional admiralty claim could have been stated against the United States." Id. A party must satisfy both prongs of the test. The Court assumes, as the parties have, that Maersk has satisfied the "jurisdictional hook" prong of the inquiry, and proceeds to analyze the second prong.
The Ninth Circuit has approved of the analysis inWilliams. Alexander, 63 F.3d at 822-23.
An admiralty claim against the United States is available to a plaintiff if provided by statute or general maritime law. In cases like this, where the United States is a time charterer, the Court considers whether "when the action arose, principles of maritime law would have allowed the appellant to state a claim against a private person in the same position as the Government, i.e. against a private time charterer." Williams, 874 F.2d at 1062. "Under traditional admiralty principles an injured seaman cannot sue a time charterer unless the seaman can show either the time charterer had enough control of the vessel to render it the owner pro hac vice, or the time charterer was actively negligent." Alexander v. United States, 63 F.3d 820, 822 (9th Cir. 1995). The Court agrees with the court's finding inFrancis that the level of control retained by the MSC over the HAUGE's destinations and its cargo did not result in the MSC becoming an owner pro hac vice. See Francis v. Maersk Line, Ltd., No. CV03-2898C (W.D. Wash.), Docket #59 at 7-8.
Maersk argues that because the vaccination program ultimately led to Abdulla's discharge, Abdulla could state a claim against the government for tortious interference with his employment contract, although he has not done so. Abdulla counters that the SAA does not provide a remedy because he could not bring his wage claim against the United States, even if it were a private employer. However, Maersk is correct that the claim that could be asserted against the government need not be identical to the claim asserted against the private employer. Instead, the language of the SAA merely requires the availability of any admiralty claim against the government. See 46 U.S.C. App. § 742. Indeed, Abdulla's reading of the statute would render superfluous the exclusivity clause's requirement that the actions be "regarding the same subject matter." See 46 U.S.C. App. § 745. Moreover, although a tortious interference claim, if brought, would likely fail, the Court does not delve into the merits of the potential claim at this stage in the analysis. Accordingly, the Court finds that the SAA provides a remedy against the United States.
See, e.g., Nelsen v. Research Corp. of Univ. of Hawaii, 752 F. Supp. 350, 355-56 (D. Haw. 1990) ("Plaintiff confuses the question [of] whether he could actually recover against the United States on the merits of his hypothetical claim with the narrower jurisdictional inquiry sufficient to satisfy section 742;" noting that section 742 does not require courts "to conduct a mini-trial to determine whether plaintiff would in fact prevail against the United States").
3. Acting as an Agent.
Next, the Court applies the exclusivity provision, and considers whether Maersk was acting as the government's agent.See 46 U.S.C. App. § 745 (barring a claim "by reason of the same subject matter against the agent or employee of the United States"). The Ninth Circuit has held that the agency analysis under the SAA begins with common law principles of agency. See Dearborn v. Mar Ship Operations, Inc., 113 F.3d 995, 997 (1997).
Agency requires mutual consent between the US and [Maersk] that [Maersk] will act subject to control of the US to accomplish a matter undertaken on behalf of the US. Dearborn, 113 F.3d at 998 n. 3. In this case, that matter was discharging any HAUGE crewmembers who refused to receive anthrax vaccinations to meet the US's objective of assuring continued military support operations of the HAUGE even in the face of a biological attack.
Maersk's Reply at 5. Maersk argues that it merely carried out the government's instructions by requiring crewmembers to receive the vaccine and discharging those who refused. Although Maersk correctly notes that under Dearborn, agency requires mutual consent to accomplish a matter on the government's behalf, its argument that consent occurred is based on an overly broad interpretation of the matter. In requiring mutual consent,Dearborn states that the parties' consent delineates the scope of the agency. Dearborn, 113 F.3d at 998 n. 3. Abdulla's claims all relate to his allegedly wrongfully withheld wages; he asserts no claims based on the loss of his job or the administration of the vaccines. The parties agreed that Maersk would remove from the HAUGE any crewmembers who refused vaccinations; they did not agree, however, that Maersk would withhold wages from those employees. The agreements between Maersk and the United States do not reflect any government direction to Maersk regarding the payment or withholding of wages, and there is no evidence that the government instructed Maersk to withhold wages from Abdulla or any employee. In fact, the contract explicitly provides that Maersk will be solely responsible for employees' wages. See Declaration of James Gerdes (Dkt. #20), Ex B. In light of these facts, it is clear that the United States did not direct Maersk regarding the payment or withholding of wages, and it did not consent to accept liability on that basis.
It is appropriate to consider the parties' contracts to determine the scope of consent. See Dearborn, 113 F.3d at 998-99; see also Padro, 731 F.Supp. at 149 (reviewing parties' contract and denying motion for summary judgment regarding mariner's injury where owner remained liable for injuries under terms of time charter agreement).
The Court notes that in the Francis case, the court held that Maersk was an agent of the United States. See Francis v. Maersk Line, Ltd., No. CV03-2898C (W.D. Wash.), Docket #87 at 3. The Francis court noted, however, that "Maersk may be subject to liability for its own independent acts of negligence not subsumed under the umbrella of its agency relationship with the United States government." Id. at 8. This Court's holding is therefore not inconsistent with Francis as the withholding of wages is clearly outside the umbrella of any agency relationship.
Finally, the Court notes that Maersk has not shown that Abdulla's wage claims against Maersk are of the same subject matter as the claim provided against the United States. Maersk has identified only one claim Abdulla could bring against the United States, and that is for tortious interference with his employment contract. Based on that potential claim, Maersk argues that the "subject matter" is "plaintiff's dismissal from the HAUGE." Maersk's Reply at 10. Abdulla's claims against Maersk, however, are not for the loss of his job. Rather, they relate solely to Captain Bond's decision to withhold a portion of his earned wages to cover the costs of repatriation. Accordingly, the Court finds that the wage claims are not of the same subject matter as the potential tortious interference claim, providing a second basis for the inapplicability of the exclusivity provision.
For the foregoing reasons, the Court DENIES Maersk's motion for summary judgment. (Dkt. #17).