Jackie DAY, Executor of the Estate of Jesse Ray O‘Neal, Jr., Plaintiff-Appellant, v. AMERICAN SEAFOODS COMPANY LLC, in personam; Katie Ann F/T Offical Number 518441, her engines, machinery, appurtenances and cargo in rem, Defendants-Appellees.
No. 07-35712.
United States Court of Appeals, Ninth Circuit.
Submitted Dec. 12, 2008. Filed March 2, 2009.
1056
John Merriam, Seattle, WA, for the plaintiff-appellant. Anthony John Gaspich and Russell Reese Williams, Gaspich & Williams, PLLC, Seattle, WA, for the defendant-appellee. Before: ROBERT R. BEEZER, RONALD M. GOULD and CONSUELO M. CALLAHAN, Circuit Judges.
[A]ttorney‘s fees ‘are to be based on market rates’ and such rates are based on the assumption that bills will be paid reasonably promptly; delays in payment thus deprive successful litigants of the market rates. To make up the difference, losses from delay can be compensated ‘by the application of current rather than historic hourly rates or otherwise.’ Thus there may be some adjustment for the delay, but the method of adjustment is somewhat discretionary; it does not necessarily call for payment of the lawyer‘s current hourly rate.
Id. at 1324 (citations omitted).
The BRB has recognized that ”Jenkins and Dague ... changed the fee-shifting landscape ... so that LHWCA cases may not be given special treatment,” and thus “a delay enhancement is appropriate under the Act.” Anderson, 91 F.3d at 1324 (citing Nelson, 29 B.R.B.S. at 97). In Nelson, the BRB held that it was an abuse of discretion to fail to award a delay enhancement when there had been a delay of eleven years. In Anderson, which involved a fourteen year delay, this court found the delay was “even more egregious than in Nelson where the BRB approved an award of current rates,” and ordered the OWCP to award Anderson “attorney fees at his current hourly rates.” Id. at 1325.7
In Anderson, we stated that, “where the question of delay is timely raised, the body awarding the fee must consider this factor.” Anderson, 91 F.3d at 1325 n. 2 (citing Nelson, 29 B.R.B.S. at 97) (emphasis added). The two-year delay complained of by Petitioners is not so egregious or extraordinary as to require a delay enhancement. Clearly the BRB—in both cases—considered the issue of delay, but declined to view the delay as long enough to merit augmentation. This was not an abuse of discretion.
CONCLUSION
On remand the BRB should re-evaluate its decisions and orders awarding attorney‘s fees in light of today‘s opinion. The BRB is directed to make appropriate findings regarding the relevant community and the prevailing market rate, but is not required to award a delay enhancement.
VACATED AND REMANDED.
* The panel unanimously finds this case suitable for decision without oral argument. See
Jackie Day (“Day“), as executor of the estate of Jesse O‘Neal, Jr. (“O‘Neal“), appeals the order of the district court barring extrinsic evidence pertaining to the duration of O‘Neal‘s employment agreement with American Seafoods Company (“ASC“). O‘Neal signed a contract to work for ASC that was limited to one fishing voyage and that included an integration clause. O‘Neal hurt his neck and back on that voyage, and left the ship‘s employ after the voyage. ASC paid O‘Neal wages through the end of that trip, and O‘Neal did not sign a new contract to work with ASC on another voyage. Day seeks “unearned wages” for a period of time longer than the single voyage agreed upon in the employment contract, and contends that extrinsic evidence will show an oral understanding for that longer period. The district court declined to admit parol evidence on the question. We review the district court‘s application of the parol evidence rule de novo. See Miller v. Fairchild Indus., Inc., 885 F.2d 498, 503 (9th Cir.1989). We affirm.
Unearned wages are “the actual wages the seaman did not earn because of his injury or illness.” Berg v. Fourth Shipmor Assocs., 82 F.3d 307, 309 (9th Cir.1996).1 “Generally speaking, ...
Federal law requires that shipowners and employees for fishing voyages enter a fishing agreement, in writing, that “state[s] the period of effectiveness of the agreement.”
This agreement constitutes the final commitment of the parties, and any modification of its terms is ineffective unless agreed upon in writing, signed by the party against whom enforcement is sought. No party has entered into this Agreement based on any representation, consideration, or promise not stated in this Agreement.
On the basis of the explicit contractual language and the integration clause, the district court held that Day could not offer extrinsic evidence to rebut the unambiguous duration agreed upon in the contract. See generally United States v. Triple A Mach. Shop, Inc., 857 F.2d 579, 585 (9th Cir.1988) (explaining the federal parol evidence rule).
Unearned wages are only available for the “period of employment,” Berg, 82 F.3d at 309, and
We also reject Day‘s arguments that employment contracts for one fishing voyage are, as applied to unearned wages, per se unconscionable or void as against public policy. Day cites Vitco, 130 F.Supp. at 950-51, to support this position. At most, however, Vitco stands for the proposition that an employer may not contractually abrogate its duty to pay unearned wages for the duration of an employment agreement. Id. at 951. That case does not apply here because the employee and employer agreed to a one-voyage employment arrangement and the employee seeks unearned wages beyond that single voyage.
There are valid reasons why both the employee and employer may wish to enter into one-voyage contracts. We decline to declare such contracts unconscionable per se.3
AFFIRMED.