DO v. OCEAN PEACE, INC., 49056-7-I (Wash.App. 5-20-2002)

No. 49056-7-I.The Court of Appeals of Washington, Division One.
Filed: May 20, 2002 UNPUBLISHED OPINION

Appeal from Superior Court of King County, No. 002084170, Hon. Jay White, August 24, 2001, Judgment or order under review.

Counsel for Appellant(s), John W. Merriam, Attorney At Law, 4705 16th Ave NE, Seattle, WA 98105.

Counsel for Respondent(s), Dennis M. Moran, Legros Buchanan Paul, 701 5th Ave Ste 2500, Seattle, WA 98104-7051.

Amanda A. Owen, 4118 Greenwood Ave N, Seattle, WA 98103-7018.

BAKER, J.

Hoang “Wayne” Do appeals a trial court’s conclusion that his employer, Ocean Peace, Inc., properly calculated his rate of pay as a fish processor aboard the company’s factory trawler. Although the work Do performed was exempt from the wage and hour requirements of the Fair Labor Standards Act[1] (FLSA), because the contract under which he was hired was void, we reverse and remand for consideration of his other wage claims.

I
Ocean Peace is a factory trawler, on which its crew catches fish off the coast of Alaska, and then cleans them, fillets or grinds them, and freezes them. Hoang “Wayne” Do, Bora Do, his wife, and their friend, Tihn Pham signed a “maximum 40 day” employment contract with Ocean Peace, Inc. to work as fish processors aboard the trawler. After completing two trips, Wayne Do became injured and dissatisfied with his job. He left with his wife and friend and the three flew home at their own expense. Some time later, Ocean Peace, Inc. sent Do a settlement statement, which itemized his earnings less the costs of in-bound and out-bound airfare and personal expenses incurred while aboard the vessel. The statement reflected a net sum due by Do to Ocean Peace of $716.39. Do challenged the statement and the parties arbitrated his wage dispute.

When Ocean Peace prevailed, Do filed suit for FLSA and maritime law violations, and for personal injury. Bora Do and Tihn Pham filed similar wage actions in federal court. The trial court dismissed Do’s FLSA claims on summary judgment. Upon conclusion of trial, judgment was entered for Ocean Peace. Do appeals.

II
The Fair Labor Standards Act (FLSA) exempts the following workers:

[A]ny employee employed in the catching, taking, propagating, harvesting, cultivating, or farming of any kind of fish . . . or in the first processing, canning or packing such marine products at sea as an incident to, or in conjunction with, such fishing operations . . . .[2]

Do argues that the work he performed as a fish processor was not exempt from the wage and hour requirements of the act, because the term “first processing” necessarily contemplates a secondary processing of fish not exempt from the requirements of the FLSA. He contends that the tasks he performed fell into this second category.

The Ninth Circuit recently rejected this contention in Do v. Ocean Peace Inc.,[3] a case in which Do’s wife, Bora Do, and his friend Thin Pham, made the identical argument. The court in Do adopted the Department of Labor’s definition of `first processing,’ which is `the `first operation or series of continuous operations’ that effectuate change from a marine product’s natural state,’ including cleaning, filleting, cutting and freezing.[4] Because Bora Do and Pham performed these tasks on the Ocean Peace, they were exempt from the wage and hour requirements of the FLSA.[5] Wayne Do urges us to disregard the Ninth Circuit’s holding, citing Lundborg v. Keystone Shipping Co.,[6] in which this court declined to follow Ninth Circuit precedent. But in Lundborg, this court resolved an issue of law on which the Circuits were divided.[7] This court elected to follow the rule adopted in the Third Circuit, which decision was affirmed by the Washington Supreme Court.[8] By contrast, no division among the Circuits exists on the interpretation of 29 U.S.C. § 213(a)(5). We hold that the work Do performed on the Ocean Peace was “first processing,” exempt from the requirements of the FLSA. Do next argues that the six month suit limitation period set forth in his employment agreement is void and therefore does not bar his other claims for wages. Generally, in rem actions for wages under an employment agreement with a fishing vessel must be brought within six months after the sale of the fish.[9] But if the employment contract is void, the contractual and statutory limitation period does not apply.[10] Do contends that his employment agreement is void because neither the master of the Ocean Peace nor its owner signed it. Under maritime law:

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 employed on board [the vessel].[11]

Further, “[t]he agreement shall be signed also by the owner of the vessel.”[12] In Harper v. United States Seafoods LP,[13] the Ninth Circuit held that this statute requires the signature of both the master and the owner of the vessel on the agreement.[14] The signature of the employer’s human resources representative is insufficient. A contract not properly executed is void.[15] In this case, the only signature on the employment agreement other than Do’s is a representative from the company’s personnel department. This is insufficient, rendering the contract void and the six month suit limitation period invalid.

Ocean Peace argues that we need not remand the matter to the trial court for consideration of Do’s other wage claims because under any scenario, Do’s expenses still exceed his earnings from Ocean Peace. We cannot discern from the record the accuracy of this assertion. In its findings of fact and conclusions of law, the trial court concluded that the contract was valid. It calculated Do’s wages under the contract less allowable expenses and determined that Do was entitled to no wages. It also refused to consider his other wage claims on the basis that they were barred by the six month suit limitation clause in the contract. We vacate the order and remand for consideration of Do’s other wage claims.

Do asserts that on remand, his wages should be calculated to include the .4 shares bonus. Under the federal statutory scheme entitled “Merchant Seaman Protection and Relief,” if a contract under which a seaman works is void, he is entitled to recover the highest port wages of a seaman of comparable rating at the port from which he engaged.[16] Although it could be inferred from Do’s employment agreement that other fish processors of Ocean Peace worked under the same terms, thus making the full one percent crewshare the highest rate of pay, this is an issue of fact for the trial court to decide.

Do last requests attorney fees. RCW 49.48.030 allows a plaintiff to recover reasonable attorney fees if he successfully obtains a judgment for wages or salary owed him. On remand, if the trial court determines that Do is entitled to a judgment for wages, then Do is entitled to his reasonable attorney fees expended on his wage claim.[17]

APPELWICK, J., concurs.