Bryan Haney; Sam Hogue v. Hughie R. Blake;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRYAN HANEY; SAM HOGUE,
Plaintiffs-Appellants,
v.
HUGHIE R. BLAKE; et al.,
Defendants-Appellees.
No. 17-35590
D.C. No. 2:15-cv-01347-RSL
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Submitted August 27, 2019**
Seattle, Washington
Before: McKEOWN and BYBEE, Circuit Judges, and GAITAN,*** District Judge.
Bryan Haney and Sam Hogue appeal the district court's judgment in their
admiralty action against Appellees. Haney and Hogue alleged that they were
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Fernando J. Gaitan, Jr., United States District Judge
for the Western District of Missouri, sitting by designation.
FILED
NOV 21 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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entitled to additional pay for work performed aboard Appellee Hughie Blake's
fishing vessels in Prince William Sound. After a three-day bench trial, the district
court awarded Hogue $1,600.15 on his wage claim. The district court found that
Appellees were entitled to judgment on Haney’s wage claim, but that Haney was
entitled to judgment in the amount of $10,000 on his claim for breach of contract.
Haney and Hogue appeal, challenging the district court’s (1) calculation of the rate
of pay under 46 U.S.C. § 11107, (2) conclusion that 46 U.S.C. § 11109 did not
prohibit the parties from entering into voluntary agreements to pay debts from
wages, (3) conclusion that Appellants were not entitled to punitive damages or
penalty wages; and (4) failure to award attorneys’ fees, costs, and prejudgment
interest to Appellants. We affirm on the merits but vacate and remand for further
consideration as to whether prejudgment interest should be awarded and, if so, the
amount.
1. Appellants argue that the district court erred in using a 9% rate in
calculating their wages due, as they argue that Appellees paid another crewman,
Jim Nulph, at rates of 10.8% and 11.7% at relevant times. Appellants argue that in
calculating their wages pursuant to 46 U.S.C. § 11107, the court should have used
these higher rates of pay instead of the oral contract rate of 9%. The district court
found, however, that Nulph’s wages were also calculated at 9%; the extra
percentages paid to Nulph were attributable to lease agreements made between

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Nulph and Blake and did not constitute wages. The district court’s findings of fact
on this issue are not clearly erroneous. See Crowley Marine Servs., Inc. v.
Maritrans, Inc., 530 F.3d 1169, 1173 (9th Cir. 2008).
2. Haney argues the district court erred in concluding that 46 U.S.C.
§ 11109(b) did not prohibit Haney from entering into voluntary agreements with
Blake to pay debts from his wages. We review findings of law de novo. Crowley,
530 F.3d at 1173. We agree with the district court that Section 11109(b) does not
prohibit such agreements. Instead, Section 11109(b) provides that in certain
circumstances such agreements are not binding. See Escobar v. S.S. “Washington
Trader”, 640 F.2d 1063, 1065-66 (9th Cir. 1981) (finding in a different statutory
context that a seaman could voluntarily agree to have his wages advanced against
expenses). Moreover, the district court did not err in finding that Haney had
entered into such agreements with Blake, which operated to offset any wages owed
to him. Thus, we find no error. Crowley, 530 F.3d at 1173.
3. Appellants assert error in the district court’s failure to award punitive
damages or penalty wages. The trial court’s factual findings in support of an
award of punitive damages are reviewed for clear error. See In re Wolverton
Associates, 909 F.2d 1286, 1297 (9th Cir. 1990). The district court concluded,
based on the facts presented, that “even if [punitive damages] were available, they
would not be warranted.” This conclusion is not clearly erroneous. With respect

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to state law penalty statutes, Appellants have failed to conduct a choice of law
analysis or to set forth evidence in the record which would support a finding of bad
faith or willful violations on the wage claims. See Hallam v. Holland Am. Line,
Inc., 27 P.3d 751, 756 (Alaska 2001) (citing Alaska Stat. § 23.05.140(d)) (finding
the penalty under Section 23.05.140(d) to be discretionary and only available if the
court finds bad faith); Wash. Rev. Code § 49.52.050(2) (imposing damages only if
the employer’s conduct was willful). The district court committed no error here.
4. Appellants argue the district court erred in failing to award attorneys’
fees, costs, and prejudgment interest to Haney and Hogue. Denials of attorneys’
fees, costs, and prejudgment interest are reviewed for abuse of discretion. See
Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 967 (9th Cir. 2009) (attorney’s fees);
Edinburgh Assur. Co. v. R.L. Burns Corp., 669 F.2d 1259, 1263 (9th Cir. 1982)
(prejudgment interest); Subscription Television, Inc. v. S. Cal. Theatre Owners
Ass’n, 576 F.2d 230, 234 (9th Cir. 1978) (costs). Attorneys’ fees are not awarded
as a matter of course in admiralty claims; instead, they are awarded, if at all, “when
the shipowner acted arbitrarily, recalcitrantly, or unreasonably.” Madeja v.
Olympic Packers, LLC, 310 F.3d 628, 635 (9th Cir. 2002). The district court did
not abuse its discretion in finding no such showing. Nor did the district court
abuse its discretion in denying costs. See Subscription Television, 576 F.2d at 234.
However, in admiralty cases, prejudgment interest must be granted unless peculiar

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circumstances justify its denial. See Dillingham Shipyard v. Associated Insulation
Co., Ltd., 649 F.2d 1322, 1328 (9th Cir. 1981). Failure to articulate a reason for
denying prejudgment interest is an abuse of discretion. Edinburgh, 669 F.2d at
1263. Although Appellees argue that Haney and Hogue waived their claim for
prejudgment interest by failing to draw it to the district court’s attention, the
Complaint states: “Plaintiff is entitled to interest at the highest rate allowed by
law.” In addition, Haney specifically requested the district court award him
prejudgment interest with respect to his breach of contract claim. Given that the
district court did not articulate a reason for denial of prejudgment interest, the
district court abused its discretion.
Therefore, the judgment is vacated and remanded as to prejudgment interest
and affirmed in all other aspects. Each party shall bear its own costs on appeal.

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