                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 21 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

BRYAN HANEY; SAM HOGUE,                         No.    17-35590

                Plaintiffs-Appellants,          D.C. No. 2:15-cv-01347-RSL

 v.
                                                MEMORANDUM*
HUGHIE R. BLAKE; et al.,

                Defendants-Appellees.

                   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.
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


                                          2                                    17-35590
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


                                         3                                      17-35590
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


                                          4                                    17-35590
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.




                                           5                                        17-35590
