Opinion
02 CV 3042 (CLP)
October 30, 2003
MEMORANDUM AND ORDER
On May 22, 2002, plaintiff, John Marcic, commenced this action pursuant to 46 U.S.C. § 688 (the "Jones Act"), and the general maritime law, seeking damages from Reinauer Transportation Companies, et al. ("Reinauer"), for injuries he allegedly suffered during two accidents that occurred while he was working on Reinauer vessels on May 20, 2001 and on May 21, 2001. He also claimed that, as a seaman, he was entitled to recover maintenance and cure during the period of his disability.
Prior to trial, the parties stipulated that there was no basis for a claim of future cure. Plaintiff also decided not to pursue claims for damages based on the May 20, 2001 injury to his eye.
The parties consented to trial before the undersigned and on August 29, 2003, the jury returned a verdict in favor of the defendants on plaintiff's unseaworthiness claim and on his claim under the Jones Act. However, the jury found in plaintiff's favor on his claim for maintenance, awarding him $75,000 for the period March 2002 to August 29, 2004, and $1,000 for past cure.
The jury's maintenance award was broken down into an award of $45,000 for past maintenance and $30,000 for future maintenance, of which the latter has been discounted to present value.
Defendants now move for an order reducing the jury's award of maintenance to $13,695, calculated at the rate of $15.00 per day as set forth in the Collective Bargaining Agreement ("CBA") that exists between defendants and the Union of which plaintiff is a member,
The amount was calculated using the contractual rate of maintenance of $15 per day for the period of the time from March 2002 to August 29, 2004 — the period of time for which the jury found maintenance was owed.
DISCUSSION
Under admiralty law, "maintenance" is the obligation of the shipowner to provide food and lodging to a seaman who becomes injured or falls ill while in the service of the ship; "cure" is the obligation of the shipowner to pay medical expenses. See Vella v. Ford Motor Co., 421 U.S. 1, 3 (1975); The Osceola, 189 U.S. 158, 175 (1903),overruled on other grounds; Moran Towing Transp., Co. v. Lombas, 843 F. Supp. 885, 886 (S.D.N.Y. 1994), aff'd in part, 58 F.3d 24 (2d Cir. 1995); Smith v. Delaware Bay Launch Serv., Inc., 842 F. Supp. 770, 773 (D. Del. 1994), aff'd, 54 F.3d 770 (1995). A seaman is entitled to receive maintenance from the date that he "is incapacitated to do a seaman's work" and until he reaches the point of "maximum cure." Vaughan v. Atkinson, 369 U.S. 527, 531 (1962); Barnes v. Andover Co., 900 F.2d 630, 634 (3rd Cir. 1990); Durfor v. K-Sea Transp., No. 00 CV 6782, 2001 WL 856612, *3 (S.D.N.Y. July 27, 2001); Gillikin v. United States, 764 F. Supp. 261, 264 (E.D.N.Y. 1991). Maximum cure is the point at which no further improvement in the seaman's medical condition is reasonably expected. Vaughan v. Atkinson, 369 U.S. at 531; Vella v. Ford Motor Co., 421 U.S. at 3; Ammar v. United States, 342 F.3d 133, 142 (2d Cir. 2003); Barnes v. Andover Co., 900 F.2d at 634; Durfor v. K-Sea Transp., 2001WL 856612, at *3; Gillikin v. United States, 764 F. Supp. at 264.
A seaman is entitled to maintenance even though he was not injured as a result of any negligence on the part of his employer or as a result of any unseaworthy condition of the vessel. See, e.g., Vella v. Ford Motor Co., 421 U.S. at 4; see also Ammar v. United States, 342 F.3d at 142; Gillikin v. United States, 764 F. Supp. at 264. To recover maintenance, the plaintiff need only show that he suffered injury or illness while in the service of the vessel on which he was employed as a seaman, without willful misbehavior on his part. The injury or illness need not be work related, it need only occur while the seaman is in the service of the ship. Vella v. Ford Motor Co., 421 U.S. at 4; Ammar v. United States, 342 F.3d at 142;Barnes v. Andover Co., 900 F.2d at 633.
During the course of the trial, defendants argued that should the jury find plaintiff to be entitled to recover maintenance, the award should be limited to recovery calculated at the rate of $15.00 per day, which is the maintenance rate set out in the CBA. Plaintiff argued to the contrary. Relying on the Third Circuit's decision in Barnes v. Andover, where the court held that "a union cannot bargain away the individual seaman's right to maintenance by agreeing to a wholly inadequate figure as a daily maintenance rate," 900 F.2d at 640, plaintiff argued that he should be allowed to prove the true amount of maintenance he incurred, including, among other things, his actual expenditures for food, as well as mortgage expenses paid during the period of his incapacity to the date he reached "maximum cure." See Incandela v. Am. Dredging Co., 659 F.2d 11, 14 (2d Cir. 1987); see also Hall v. Noble Drilling (U.S.) Inc., 242 F.3d 582, 587-88 (5th Cir. 2001).
Historically, maintenance awards took "`into account all relevant circumstances, such as the somewhat equivalent costs for housing and food ashore as well as regional differences in prices.'" Ammar v. United States, 342 F.3d at 143 (quoting G. Managone, United States Admiralty Law, 127 (1997)). Recently, however, a number of circuits have held that where a maintenance rate has been agreed to in a collective bargaining agreement, "the broad policies which undergrid the labor laws as well as the nature of the collective bargaining process, require nevertheless that the maintenance rate expressed in the collective bargaining agreement be enforced." Gardiner v. Sea-Land Service, Inc., 786 F.2d 943, 948 (9th Cir.), cert. denied, 479 U.S. 924 (1986): see also Frederick v. Kirby Tankships, Inc., 205 F.3d 1277 (11th Cir. 2000); Baldassaro v. United States, 64 F.3d 206 (5th Cir. 1995); Al-Zawkari v. American Steamship Co., 871 F.2d 585 (6th Cir. 1989); Macedo v. F/V Paul Michelle, 868 F.2d 519 (1st Cir. 1989).
At the time the trial commenced on August 25, 2003, the Second Circuit had not ruled on the question of whether a seaman was limited to the rate of maintenance specified by the applicable collective bargaining agreement, and the circuits were split on the issue. While the Third Circuit in Barnes had ruled that a plaintiff was not bound by the rate in the collective bargaining agreement, the First, Fifth, Sixth, Ninth and Eleventh Circuits had determined that where a seaman was a member of a union that had agreed to a specific daily maintenance rate, the seaman was limited to recovery of maintenance at that rate. See Frederick v. Kirby Tankships, Inc., 205 F.3d at 1292;Baldassaro v. United States, 64 F.3d at 212-13; Al-Zawkari v. American Steamship Co., 871 F.2d at 588; Macedo v. F/V Paul Michelle, 868 F.2d at 522; Gardiner v. Sea-Land Service, Inc., 786 F.2d at 949-50. The district courts in this Circuit were also split. Compare Durfor v. K-Sea Transp., 2001 WL 856612, at *4 (deciding that collective bargaining agreement rate of $15 per day was not binding); Gillikin v. United States, 764 F. Supp. at 267 (finding "that the rate of maintenance specified by the collective bargaining agreement . . . cannot provide the requisite support, . . . and therefore it may not enforce the rate"); Bachir v. Transoceanic Cable Ship Co., No. 98 CV 4625, 1998 WL 831035, *2 (S.D.N.Y. Nov. 24, 1998) (same); with Denardo v. Energy Transp. Corp., 1989 WL 58038, *1 (S.D.N.Y. May 19, 1989) (holding collective bargaining rate of $8 per day as binding);Dixon v. Maritime Overseas Corp., 490 F. Supp. 1191, 1194 (D.C.N.Y. 1980) (same); Maloney v. Bouchard Transp. Co., 1990 WL 96988, *11 (S.D.N.Y. 1990) (same). Thus, in the absence of a definitive ruling from the Second Circuit, this Court held that plaintiff should not be limited to the rate in the CBA, but instead permitted plaintiff to introduce evidence of the actual expenses he incurred following the accident, including the funds expended for food and his mortgage expenses.
On August 29, 2003, the day the jury rendered its verdict in this case, the Second Circuit issued its decision in Ammar v. United States, 342 F.3d 133, joining the majority of circuits which have held that where there is a collective bargaining agreement in place, the plaintiff is limited to recovery of maintenance at the rate set forth in the agreement. Id. at 146. In reversing the lower court's decision, the Second Circuit in Ammar noted that while the district courts in the Second Circuit have been divided on the question, "most have adopted the view of the Third Circuit in Barnes," (Id. (citing cases)). Nevertheless, the Court indicated that it found the reasoning of the Ninth Circuit in Gardiner v. Sea-Land Services, Inc., 786 F.2d at 948-950 persuasive, concluding that:
The modern reality is that most seaman are no longer "friendless," rather, they have gained strength through collectivity. . . . Thus, the need for judicial intervention to protect seamen has been substantially lessened. Recognizing both the goal of providing protection for injured seamen and the importance of collective bargaining to industrial peace, we conclude, that, in light of the reality of modern circumstances, the appropriate accommodation between federal maritime common law and federal common law for the enforcement of collective bargaining agreements is to allow unionized seamen to bargain for rights and privileges they prefer in exchange for limiting the per diem rate of maintenance.342 F.3d at 146.
Following the issuance of the decision in Ammar, defendant's counsel in this action moved for an order modifying the jury's award of maintenance to the reduced rate of $15.00 per day established by the applicable CBA or, in the alternative, a new trial. (Def.'s Letter of Sept. 4, 2003 at 2).
Plaintiff argued in response that the jury's verdict was not inconsistent with the holding in Ammar because the relevant CBA at issue here does not limit maintenance to $15.00 per day, but merely sets that rate as "a minimum amount that must be paid." (PL's Letter of Sept. 8, 2003 at 1). Specifically, the union contract states:
Section 16. Maintenance and Cure
When an Employee becomes ill or is injured under circumstances entitling him to maintenance and cure under general maritime law principles, he shall be paid a minimum of $15.00 per day for each day or part thereof of entitlement. If the Employer contests its liability for maintenance and cure in any case, the issue shall not be determined under this Agreement but solely by a court of competent jurisdiction, except that such claims for maintenance and cure of less than $200.00 for any single accident or sickness shall be determined under the Adjustment and Arbitration provisions of this Agreement.
In adjusting maintenance and cure for legitimate out-patient treatment, the Employer will compensate the Employee on the basis of $15.00 per day subject to the production of a "Non fit for duty certificate."
Based on this language, plaintiff argues that the agreement "establishes a floor, not a ceiling" and that consistent with this, Reinauer voluntarily paid plaintiff for some period of time at the higher rate of $80 per day until maintenance payments ceased altogether in February 2002. (PL's Letter of Sept. 8, 2003 at 1). Specifically, plaintiff attempts to draw a distinction between the two clauses in Section 16 of the CBA. He points to the sentence in the agreement that provides that where an employer contests liability under this provision, the dispute should be presented to a court. He argues that this should be interpreted as indicating that while a $15 minimum rate is required, the parties can agree on a higher maintenance level. (PL's Letter of Sept. 10, 2003), If there is a disagreement as to that rate, plaintiff argues that this language was meant to require the parties to take the dispute to court. (PL's Letter of Sept. 15, 2003 at 1).
While this Court agrees that the language of the CBA does not prohibit the parties from negotiating a higher rate if they wish, that was not the case here. Defendants disputed plaintiff's claim that the difference between the $15.00 and the $80.00 per day that was paid out to plaintiff during a certain period was meant to be "maintenance." Moreover, this Court does not agree with plaintiff's reading of the language of the relevant section. Rather, the language relied on by plaintiff is clearly meant to indicate that rather than subject disputes about maintenance to the grievance and arbitration provisions of the contract, disputes relating to maintenance are issues for a court to decide. That does not, however, substantiate plaintiff's claim that a court is free to impose a maintenance rate higher than $15.00 on the defendants.
At least two cases in this Circuit, both decided beforeAmmar, have considered language similar to that in plaintiff's CBA where maintenance payments were stated in the agreements as minimum amounts. See, e.g., Durfor v. K-Sea Transp. Co., 2001 WL 856612, at *4 (finding inadequate the maintenance rate provided for in the agreement which was "to be paid at a minimum of $15 per day," and holding that a plaintiff who can show evidence of "actual living expenditures" may recover that amount provided it is reasonable) (quotingIncandela v. Am. Dredging Co., 659 F.2d at 14). But see Maloney v. Bouchard Transp. Co., Inc., 1990 WL 96988, at *3 (holding that where plaintiff sought "a retroactive increase in his maintenance above the $15.00 per day, which was the minimum amount required under the union agreement because it was not sufficient to meet his daily expenses," the "plaintiff is bound by the union collective bargaining agreement, and the payment of maintenance at the rate of $15.00 per day is in compliance with the agreement").
Although neither of these courts had the benefit of the Second Circuit's reasoning in Ammar, this Court finds that the reasoning in Ammar favors defendant's position in that the parties bargained for and agreed upon a rate of $15.00 per day, which seems to be a fairly standard rate in comparison with other agreements.See, e.g., Maloney v. Bouchard Transp. Co., Inc., 1990 WL 96988; see also Durfor v. K-Sea Transp. Co., 2001 WL 856612;Ruiz v. Buchanan Marine, Inc., No. 95 CV 9861, 1996 WL 200301, at *1 (S.D.N.Y. April 25, 1996); Covella v. Buchanan Marine, Inc., No. 95 CV 6514, 1996 WL 164482, at *2 (S.D.N.Y. Apr. 9, 1996).
Accordingly, based on the Second Circuit's recent decision inAmmar, this Court finds that the jury's award of maintenance must be reduced to $13,695, based on a rate of $15.00 per day for the period of time that the jury found it would take plaintiff to reach maximum cure.
Wherefore, this Court enters judgment in favor of plaintiff in the amount of $14,695 based on the jury's award of maintenance of $13,695, plus past cure in the amount of $1,000. Judgment is entered on plaintiff's remaining claims in favor of defendants.