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 ORDER ON MOTION FOR PARTIAL

SUMMARY JUDGMENT - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

DANIEL BRYAN, a seaman, 

Plaintiff, 

v.

ICICLE SEAFOODS, INC., an Alaska

corporation, et al., 

Defendants. 

CASE NO. C06-0231RSM

ORDER ON MOTION FOR PARTIAL

SUMMARY JUDGMENT 

This matter is now before the Court for consideration of plaintiff’s motion for partial summary

judgment. Dkt. # 17. Plaintiff asks that the Court find, as a matter of law, that he is entitled to benefits

under Alaska’s Workers’ Compensation law without offset against any damages he may receive in this

case brought under the Jones Act, 46 U.S.C.App. § 688. Defendants have opposed the motion. The

Court has fully considered the motion, response, and reply. For the reasons set forth below, the motion

shall be denied.

BACKGROUND AND DISCUSSION

Plaintiff was employed as a fish processor on three different fish processing vessels owned by

defendants, the vessels Discovery Star, Arctic Star, and Bering Star. All three vessels are floating fish

processing vessels which remain tied to the dock, and plaintiff did not engage in any navigation-related

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1

Washington State has a repayment provision. RCW 51.12.100 states: 

In the event payments are made under this title prior to the final determination under the maritime

laws or federal employees’ compensation act, such benefits shall be repaid by the worker or

beneficiary if recovery is subsequently made under the maritime laws or federal employees’

compensation act. 

 ORDER ON MOTION FOR PARTIAL

SUMMARY JUDGMENT - 2

activities, only fish processing. Such workers on near-shore fish processor vessels are covered under the

Alaska Workers’ Compensation Act, AS 23.30 et seq. Plaintiff applied for, and received, workers’

compensation benefits for injuries to his wrist, which began in 2003 and continued into 2005. In 2006,

he filed this complaint under federal maritime law for damages due to negligence and unseaworthiness of

the vessel, together with a demand for maintenance and cure. 

In answering the verified complaint, defendants asserted two affirmative defenses which have been

put at issue in this motion. Affirmative Defense No. 7 states that “[t]he plaintiff’s claims are barred in

whole or in part by the exclusive liability provision of the Alaska Workers’ Compensation Act.” Answer,

Dkt. # 5, p. 6. Affirmative Defense No. 8 states that “[b]enefits have been paid to and on behalf of the

plaintiff and any award hereunder must be reduced by the amounts paid.” Id. In response to the motion

for partial summary judgment, defendants have withdrawn Affirmative Defense No. 7, so it need not be

addressed. 

Plaintiff’s motion asks for a determination that he is entitled to collect both workmen’s

compensation under Alaska law and maintenance and cure, as well as damages, under the Jones Act,

without offset of one against the other. His argument for such a determination arises from a 1988

amendment to the Alaska Worker’s Compensation Act, which modified the definition of commercial

fishermen to exclude fish “processing workers on floating fish processing vessels who do not operate

fishing gear or engage in activities related to navigation or operation of the vessel.” AS 16.05.940(4). 

This modification allowed these fish processing workers to be covered under the state workmen’s

compensation law, which excluded commercial fishermen from coverage. According to plaintiff, the

Alaska legislature’s failure to include a provision to offset workmen’s compensation benefits received 

against Jones Act benefits, means that no setoff is required or allowed.1

 In other words, according to

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 ORDER ON MOTION FOR PARTIAL

SUMMARY JUDGMENT - 3

plaintiff, he is entitled to double recovery. The Court finds no merit to this assertion. 

While the courts have held that an award of workman’s compensation benefits does not bar a later

suit under the Jones Act, the rule against double recovery is a well established one. See, e.g., Figueroa v.

Campbell Industries, 45 F. 3d 311, 315 (9th Cir. 1995); Miron v. All Alaska Seafoods, Inc., 705 F. Supp.

518, 519 (W.D. Wash. 1988). The rule is observed by the Alaska courts as well. After finding that the

“exclusive remedy” provision of the Alaska Workers’ Compensation Act cannot deprive a plaintiff of his

federal maritime remedy, the Alaska Supreme Court noted that double recovery would not be allowed: 

We noted in Barber that double recovery would not be permitted as the amounts paid under 

the compensation award would be subject to offset should the employee win his federal 

maritime case. This observation also governs the present case.

State of Alaska, Department of Public Safety v. Brown, 794 P.2d 108, 110 n.1 (Alaska 1990) (citing

Barber v. New England Fish Co., 510 P.2d 806, 813 n. 39 (Alaska 1973). 

Plaintiff contends that the first two cases mentioned above were decided before the amendment to

the Worker’s Compensation Act which provided for coverage of fish processor workers, and thus do not

address the specific issues here. However, the legislature’s silence cannot overcome the general rule,

observed in Alaska as elsewhere, barring double recovery. Plaintiff further asserts that although the

Alaska Supreme Court decided the Brown case quoted above after the 1988 amendments, the employee

there was a state ferry worker, and “the seaman ferry workers were not expressly covered under the

Alaska Workers’ Compensation Act.” Plaintiff’s Reply, p. 8 (emphasis as in original). That statement is

incorrect. The plaintiff in Brown worked for the state public safety department, and was injured when he

boarded a fishing vessel to inspect it for suspected fisheries violations. Brown, 510 P.2d at 109. The

Alaska Supreme Court’s pronouncement in Brown that double recovery would not be allowed was a

general statement and was not tied to any specific provision of the state’s Workers’ Compensation Act,

nor any particular type of worker. By that very generality, it directs the outcome of this motion. 

The Court declines to find that the fish processor workers such as plaintiff were granted a special

exception to the general rule of offset by the Alaska legislature’s silence. It is not necessary to certify the

question to the Alaska Supreme Court as plaintiff asks, because the question has already been answered

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 ORDER ON MOTION FOR PARTIAL

SUMMARY JUDGMENT - 4

by that very court in Brown. . 

Accordingly, plaintiff’s motion for partial summary judgment on the question of offset is

DENIED. However, the offset which will be allowed will include only the overlapping areas of plaintiff’s

damages, so that plaintiff does not reap a double recovery for such items as maintenance and cure, lost

wages, and medical payments. Miron, 705 F. Supp. at 519. This amount remains to be determined. No

offset will be allowed against other Jones Act damages such as pain and suffering, or loss of future

earning capacity. Id. 

DATED this 23 Day of October 2007.

A

RICARDO S. MARTINEZ

UNITED STATES DISTRICT JUDGE 

Case 2:06-cv-00231-RSM Document 27 Filed 10/23/07 Page 4 of 4