*2 Before FAY HATCHETT, Circuit Judges, *, and HODGES Chief District Judge.
HATCHETT, Judge: Circuit We are upon called to determine whether the district court properly ruled per- that a son a seaman “in the service of the ship” at the time person suffered an injury on entitling shore person maintenance and cure as well wages. Finding the district ruling proper, court’s we affirm.
FACTS Services, Ltd. (Trans/American) is a catering concession- provides aire that beverage food and ser- vice, with personnel, attendant to cruise ships. It had a contract with Scandinavian (Bahamas), World Ltd., (Scandina- Cruises vian) the operator owner and of the M/V 1982, Sun. In February, Trans/American’s recruiting agent in Ja- Archer, maica hired Devon appellee. Archer worked as an assistant pantryman lived January, the vessel until 1984, except for brief vacations. April, 1983, signed his second contract of with Trans/Ameri- one-year can for a beginning 11, May term expiring May 1984. In Janu- ary, 1984, the need for maintenance and repairs required that the M/V Scandinavi- placed an Sun be in dry dock for two Although weeks. Archer’s contract term expired, required had not he was to vacate ship during dry docking, but was invit- sign ed to a new of employment Horr, Harris, Mitchell, David J. Horr one-year & beginning term Associates, P.A., Miami, Fla., for defend- 1984. Archer the new contract and ant-appellant, cross-appellee. left on a unpaid then two-week vacation to Jamaica, his homeland. Clarke, Hicks,
Elizabeth K. Daniels & P.A., Miami, Fla., for plaintiff-appellee, Although was not scheduled to cross-appellant. depart the new em- * Hodges, Hon. William Terrell by designation. Chief U.S. District Judge Florida, for the Middle sitting District
ployment contract that Archer re- DISCUSSION to Trans/American's offices Miami A. Factual Findings of Review —Standard 1984.1 On cases, As in all civil the district court’s required, Archer returned from findings of in admiralty fact cases are bind upon reporting Jamaica and in at ing unless erroneous. Fed.R.Civ.P. office, company officials Carriers, 52(a), U.S.C.; Hercules Inc. v. *3 report ship instructed Archer to to the Florida, Claimant State Dept. of of instructions, 1984. As to the Transportation, Cir. “They found: district court informed V, 1985); Agios Fisher v. Nicolaoas him that in interim he would have no (5th Cir.1980). F.2d 308 specifically assigned duties and he was free suggests Trans/American its pleased do depar- to as he until the time of demonstrating burden of clear error is re following day, ture.” The Archer was in- parties laxed because the submitted this jured passenger while a in a friend’s auto- action to the district court entirely depo personal pleasure mobile on trip. sitions and documentary evidence. Where complaint entirely
Archer the evidence consists filed a three-count of documentary depositions evidence and against and Trans/American and Scandinavian require does assessment of credi Act, recovery under the recovery Jones bility, reviewing good court is in as general of maintenance and cure under the position as the district court to decide the law, recovery punitive maritime of facts. Emmco Insurance v.Co. Walleni damages attorney’s fees. Because the Lines, S.A., us Caribbean pertaining essential facts to Archer’s (5th Cir.1974). Trans/American as dispute, parties claims were not sub- serts that its burden under Fed.R.Civ.P. summary judg- mitted cross-motions for 52(a) to show that the district court’s find granted The ment. district court ings of fact clearly are erroneous is not as for summary judgment motion and award- heavy as it would be if the evidence general ed him damages, but denied his presented required at trial had the court to requests attorney’s punitive fees and credibility make choices. Even under a damages. ap- Trans/American Services burden, however, relaxed we reverse peals the award. only if findings we find the factual disputes erroneous. Since no factual were presented court, to the district our task as ISSUES findings to the easy. factual is presents Trans/American four issues in (1) appeal: Agency this whether Trans/American acting agent vessel; (2) as an for the In granting Archer’s motion for summa- whether Archer was “in the service of the ry judgment, the district court found that ship” awaiting (3) departure; while under the land based contract between whether he is entitled to maintenance and Scandinavian, cure; (4) he whether is entitled to acting Trans/American was as an wages one-year period during for the which ship for the ship and the owner/operator recovering injuries.2 from his when checked at contract, pertinent part, provided: 1. The ida. Show them this letter and otherwise, they you register. you Report will allow to expect- Unless notified will be ed to arrive at our office office listed above at 1700 North Amer- 1984 a.m. Floor, Way, Dodge ica Fifth Island on Janu- agree appellee way 2. We with the that another a.m. This does not mean a week viewing simply this case is specified. you earlier or a whether Archer is date later than If date, fail entitled to and cure Immigration to arrive on this U.S. maintenance because he your you to refuse was in the service of the admittance. If at the time of the Nevertheless, please proceed arrive after office hours El accident. we address the case Hotel, Street, Miami, Plaza upon presented by 100 N.E. appellant. 10th Flor- the issues as Trans/American’s Miami office on accountability for condition and 21, 1984. challenges this the conduct of working those aboard. In finding clearly erroneous, alleging that every instance in which the owner or agency no relationship existed between operator has historically been held account- Trans/American and Scandinavian. able, an contractor allegedly unrelated to the would be the respon- Federal maritime law embraces the sible party. principles Neptuno Naviera agency. S.A. v. All Freight International For 2. Archer’s Status warders, Inc., (11th Cir.1983). Naviera, district we held the existence of court also found that
agency relationship question attained is a seaman status of fact. at the time checked in at 665. On the at basis the undis Trans/American’s Miami puted parties, averments of office and “in both the dis service of finding trict court’s that an agency rela contends that finding this *4 tionship clearly erroneous, existed is clearly not is arguing erroneous. that Archer was on leave until January 1984, that Trans/American claims that it he had off ship’s the articles before merely an operat contractor going leave, on and that he yet had not ing pursuant agreement to a contractual signed back on the ship’s articles when he shipowner. with the any agency It denies injured. was relationship with the vessel or the vessel’s If, however, We owner. conclude the vessel that Archer pro is to was “in the vide food passengers, for its service the We must have arrive at this employees prepare to conclusion by recognizing and serve the food. that If the vessel does not directly persons acting hire Trans/American was the perform functions, to hiring these personnel then some the oth to handle the person er entity or beverage must act on and behalf of food concession. In order to the personnel vessel to obtain efficiently the carry provide to services, its important out this ship cruise function. Trans/American had marshal person- to its entity The which acts prior behalf of on the nel to ship’s departure the date. Con- vessel is agent. case, the vessel’s In this sequently, Trans/ American Arch- an agency relationship exists between er to check in at the Miami on office Janu- 21, 1984, and Scandinavian. to employment commence his Trans/American’s independent contractor which assignment resulted ship to does status not render agency finding the duty board on 1984. Archer’s improper erroneous or as a matter compliance, therefore, was in the “course of law. employment” of his and inured to Trans/American’s benefit. See Vincent v. If the law were to recognize this contrac- Service, Harvey Well (5th arrangement tual something other than Cir.1971). agency relationship, the result would be case, anomalous. In this ship cruise has Trans/American argues that Archer’s contracted for its beverage entire and food scheduled leave of absence not to end service, thus, completely insulating 23, 1984, itself ship when the from and all liability might which arise depart to scheduled from Miami. It is im- that ship from service. If the portant owner recognize, however, or to that Arch- operator can contract for its food and bev- er’s leave of absence effectively termi- service, erage may then it also contract for by requirement nated the that he make an members, its engineers, crew its its mainte- appearance in Miami prior to that date. nance, housekeeping, hospitality Furthermore, staffs. employment new logical The extension of this notion is Immigration that stated that officials had been ship operator owner or could contract instructed to refuse operation. manner, entire such a Archer if admittance failed to arrive on operator owner or escape 21,1984. would all necessary, It was there- provides that blue water two The law return from Jamaica
fore, injuries suffered departure seamen recover for scheduled days before personal to secure busi shore leave while on not Sun M/V Scandinavian Co., Inc., his en- ensure Talley also to ness. employment, but Liner v. J.B. Finally, Cir.1980). the fact that country. Archer was try into this aboard duties performing was not He lived aboard the blue water seaman. time of at the February, for Trans/American from M/V Scandinavian Sun seaman sta- him of deprive injury accident, does except until the time of his Co., Transp. Oil v. tus. Braen during a few brief vacations over that two- Pfeifer 80 S.Ct. 4 L.Ed.2d 361 U.S. injured, he year period. Had he not been Pace, 378 (1959); Towing Co. Magnolia would have boarded M/V Scandinavian Cir.1967). Because F.2d again resided on Sun return to made ship for the duration of his twelve on the commencing work prerequisite Miami a Archer was month contract. court that the district ship, find we seaman on shore essentially a blue water had sea- that Archer correctly concluded his home in Ja leave. He was neither at injured. when he was man status maica, where he resides. nor purpose presence for his Miami of Re- Legal Conclusions—Standard B. solely to serve date of the accident was view marshaling interest Trans/American’s of law conclusions court’s The district its contractual obli personnel to meet Bailey v. plenary review. subject to are gation. he arrived Miami Once *5 Inc., Lines, Carnival Cruise office, he signed in with Trans/American’s earlier, Cir.1985). pointed out As of the crew. was a member it, the dis- disputes before factual with no equivalent in Miami the two-day wait based legal conclusions reached trict court foreign port. We con of shore leave a agreed facts. seaman, that, as a blue water clude position during his two in the same and Cure 1. Maintenance been had days in Miami as he would have recognized on leave some other historically been law has Maritime cure a cruise. right to maintenance a seaman’s in the course of his injuries suffered for vessel, occurring on whether service to the Wages 2. v. Great Lakes on land. O’Donnell sea or the Trans/American contends 36, Co., 318 63 S.Ct. U.S.
Dredge & Dock
awarding
Archer lost
court erred
district
(1943). In
488, 491,
596
O’Don-
87 L.Ed.
It
one-year
period.
contract
wages for his
nell,
explained that the
Supreme Court
the
(1)
arguments:
presents the alternative
cure
maintenance and
of
maritime benefit
wages
to no
at all
that Archer was entitled
incident to the
regarded as “an
must be
the same reasons
employment of
in the
status of the seaman
argument against Archer’s
presented in its
at
a
63 S.Ct.
cure;
(2)
or
to maintenance and
entitlement
further contends that
recover his
only
entitled to
that Archer
analogous to a “shore
Archer’s case is
period.
wages for a one-month
defined
parameters
the
within
leave” case
to an award
As for Archer’s entitlement
Aguilar v. Standard Oil
by
progeny of
the
wages is a
wages,
is settled law that
of
930,
724,
Co.,
63 S.Ct.
87 L.Ed.
318 U.S.
of mainte-
component of an award
basic
established that
(1943). We have
1107
Tumey,
nance and cure. See Vickers
when he
seaman status
attained
Cir.1961).
Because we
the Miami office
in at
checked
Archer,
water sea-
as a blue
21, 1984,
conclude that
to mainte-
foreign port, is entitled
man in a
the time of
service of the
at
the
principles
governing
cure under
nance and
injury.
law,
of maritime
he is also entitled to
urged upon
Court;
the District
is not nec-
wages.
essary to a
decision in the
case;1
and tends
to obliterate the law of the
indeed,
regard
appropriate
peri
With
time
Circuit—
the law
calculating
wages,
everywhere governing
juris-
od for
award
—
prudential
law is also clear in this circuit. A
analysis
seaman
which should be made
year
under
can collect a
in differentiating agents
employees
year’s
wages
part
lost
of maintenance.
from independent contractors.2
Barwick,
1520,
Nichols v.
I
disagree
must also
with the Court’s
(11th Cir.1986). We concur with the law of
dawn,
ultimate result. “From its
the mari-
predecessor
our
circuit.
Vickers v. Tu
time
recognized
law has
right
seaman’s
(5th Cir.1961),
mey, 290 F.2d
to maintenance and
injuries
cure for
suf-
Fifth Circuit stated: “If employment is for
fered in the course of his service to his
period
voyage,
other than the
such as
vessel,
occurring
whether
on sea or on
coastwise articles for six months or for a
land.” O’Donnell v. Great
Dredge
Lakes
time,
voyage concept
definite
the end of the
Co.,
36, 41-2,
& Dock
318 U.S.
63 S.Ct.
apply
wages
does not
are due him for
(1943). Here,
Accordingly, the judg- district court’s whether or not Archer was “in the service ment is affirmed. ship” at the time of his accident and resulting injury. The Court concludes that
AFFIRMED.
was, relying by
analogy upon Aguilar v.
HODGES,
Judge,
Chief District
Co.,
Standard Oil
318 U.S.
dissenting:
(1943),
I respectfully dissent. The Court’s con-
man3 to maintenance and cure
clusion that
while on
Trans/American was an
personal
and not an
“shore leave”
recuperation.
contractor of the
for
ship owner
theory
embraces a
that
Although
was not
the issue is both novel and diffi-
vessel,
ers,
relationship
1.
Board,
It is the seaman’s
etc. v. National Labor Relations
669
identity
employer,
generates
(D.C.Cir.1981),
not the
of his
discussing
that
F.2d 759
all
in a varie-
right
Appel-
ty
legal
to maintenance and cure. The
settings
the numerous factors to be
correctly
lee himself
deciding
states that: “The fact of an
agent/independent
considered in
con-
agency relationship between the entities is ...
tractor issues.
irrelevant
to the case.
It is the seaman’s em
cure,
ployer who is liable for maintenance and
3.The
term “blue water seaman” refers to mem
shipowner
and not the
where the two are not
bers of the crew who live aboard the
Expert
the same. Mahramas v. American
Is
serves to differentiate them from seamen who
Lines, Inc.,
(2d Cir.1973)
brandtsen
Sun was period January 9 docking
dry 23. Archer off the January
through at its and left the vessel
ship’s articles4 However, his then in Miami.
home contract with employment
existing and, expired; not be- had for his home Ja- departing Miami fore COMPANY, DREDGING maica, agreement new STUYVESANT entered into a Plaintiff-Appellant, (from pay a raise providing $450.00 month) January per effective to $600.00 travelled Jamaica 1984. He then STATES, The UNITED effect, became, unpaid two what Defendant-Appellee. voyages. To be week vacation between majority, sure, emphasized by the No. 87-1304. to Miami
contract that return Appeals, Court of United States on Janu- and check with Trans/American Federal Circuit. 21; paid not not he was but it returned to rejoin due to Dec. 1987. Indeed, signifi- it is 23. service employment did cant that his contract name; ship by identify any specific
and, although parties contem- to the M/S
plated Archer would return Sun, equally clear that it is legal right under had as of the time of assign 22 to accident on
(or reassign) him to
pleased.5 view, therefore, fairly my it cannot be Archer was on
said on these facts that any time
“shore leave” at between not on a
9 and vessel was calling foreign port; in distant or
voyage *7 voyages and due to was between port. Archer service in its home
reenter signed off the and never
had Indeed, have as- on. he could been
back January 23 to on an
signed prior to work vessel. He well
entirely different employee of Trans/American
have been peri- purposes that crucial some given his contract of
od Though directly employed by was a 5. In his brief Archer states that "... owner, undisputed for the food and blue water seaman whose home it is when year beverage personnel sign was to be the on the and com- come M/V might skip as- they such other their service to the vessel become Sun or mence as'Defendant Brief, p. emphasis sign (Appellee's to" of the crew and him members subservient supplied). authority of the vessel's officers.