George Barnes v. Andover Company, L.P.

BECKER, Before SLOVITER and LIFLAND, Judges, Circuit District * Judge OPINION OF THE COURT SLOVITER, Judge. Circuit I.

Issue payment by ship- is the Maintenance a seaman for the seaman’s food owner to lodging expenses incurred while he is accident. as a result of illness or ashore us agree that the issue before parties Both importance appeal is of substantial on this industry: to the United States by the rate of a seaman is bound whether bargain- fixed in a collective the seaman’s union ing agreement between bound, we shipowner. If he1 is not and a ex- prorated must also decide whether lodging may be permanent pense of his in the rate of maintenance. included Circuit, opinion, in a divided The Ninth collectively bargained rate held binding not- day is on the seaman $8.00 * Lifland, Cir. 526 F.2d 193 v. Ohio River States District Shaw John C. Hon. towboat); Jersey, sitting by 1975) (maid Mahramas of New and cook on Court for the District Lines, designation. Export Isbrandtsen v. American (2d Cir.1973) (hairdresser passenger lin opinion followed the author of this 1. The er). gender equality blow refraining Until the winds of principle, practice, as a matter will, industry, the author using pronouns characterize non- sexist into the maritime suggest opinion specific litigants. reality, the cases refer in this concession to employees this who will affected employees as seamen. see, e.g., overwhelmingly opinion male. But parties except settled all claims finding over. The withstanding the district court’s Barnes’ claim for maintenance from No- food inadequate to obtain the rate is July until vember v. Sea-Land Ser Gardiner lodging. vice, Inc., cert. (9th Cir.), 786 F.2d 943 hearing expedited At an before dis- denied, February par- trict court on both circuits re Two other L.Ed.2d 303 presented living on Barnes’ ties evidence approach. See Mace cently followed that expenses ship. on and off the The while Michelle, 868 F.2d 519 do v. F/V Paul & day, a $21.53 court ordered maintenance American Al-Zawkari v. (1st Cir.1989); which, following a motion for reconsidera- Cir.1989). Steamship 871 F.2d 585 tion, was later reduced to to exclude $20.88 held that the court in this case The district expenses for union dues. The dis- Barnes’ binding on the seaman contract rate is not trict court fixed this amount based on rate based on a maintenance and awarded plaintiff’s testimony as to the amount of we actually incurred. Because expenses expenses gas, electricity, monthly his court that the sea agree the district insurance, toiletries, food, homeowner’s rate, challenge bargained we man automobile, gas and oil for his and automo- First, position of the depart from the will After Andover filed a no- bile insurance. agree also and Ninth Circuits. We Sixth appeal, agreed counsel that tice of district court that with the inadequate permit review record was recovering the cost of precluded jointly supple- and moved to remand for he incurred lodging merely because also his mentation of the record. at sea. How expense that when he was remand, parties Upon submitted evi- ever, find that the district court because we concerning court dence to the district amount of in its calculation of the included living expenses, bargaining Barnes’ properly encom costs not leading up bargaining SIU right of mainte passed by the seaman’s agreement, the effect of inflation on the supported by the nance and costs not $8, bargained rate of and other information record, recalculation of we will remand for procedures. and regarding union benefits plaintiff is award to which the maintenance living expenses of Barnes’ evidence entitled. provided by testimony dep- and the Barnes’ sister, Molander, Mary was osition of his

II. longstand- that Barnes and his sister had a they History ing agreement whereby together Facts and Procedural Philadelphia, in Penn- maintained a home Barnes, George Plaintiff a member house, owned the sylvania. Molander (SIU or International Union the Seafarers completely was for. Barnes which Union), injured was on November the utilities and usually paid one-half of the M/V Adonis in working while aboard regardless he was expenses other whether He sued defendants Andover Puerto Rico. Molander testified that ashore or at sea. Corpo- Shipping Company Apex and Marine savings pay plain- used her own she (for Company, L.P. ration whom Andover he expenses household after tiff’s share of place in of both has since substituted been the settlement of was and before defendants) pursuant to the Jones original personal injury claim. his 688(a) (1982), Act, gen- U.S.C.App. § a second memo- injuries his The district court issued alleging eral maritime law reviewing the new evi- by negligence and randum order were caused defendants’ court held applicable and re- dence and law. The of the vessel the unseaworthiness punitive dam- that the contractual rate was unenforce- compensatory and quested right maintenance is a requested maintenance and able because ages. He also inseparable from the seaman’s service. day, cure in the amount of $35.00 rejected argument the defendant’s day provid- It in excess of the $8.00 amount preempts agree- National Labor Relations Act ed for the collective to claim maintenance And- the seaman’s the Union and ment effect between friendless, acquire poor and habits of rejected It also rate. the contractual above carelessness, indulgence, im- gross Ninth adopted by the Circuit argument provision providence. If some be not 948-49, Gardiner, expense made for them sickness at the our national labor policies underlying broad ship, they foreign must often bargained require the laws ports evils of dis- suffer accumulated held Finally, the court enforced. rate to be ease, perish poverty, and sometimes were a if rate maintenance even the from the want suitable nourish- bargaining, there was subject of proper expenses are ment. If these ... had rate of maintenance evidence upon the interest of the charge ship, be- subject an actual been immediately connected owner will be The shipowners. union and the tween the with that of the The master seamen. the it had reviewed then stated that court vigi- watch over their health with will concerning plaintiffs additional evidence fidelity_ Even the mer- lance and previ- the amount expenses, concluded that ultimate benefit chant himself derives an appropriate, and or- was ously determined at first an onerous from what seem mainte- Barnes pay defendant to dered charge. encourages It seamen to en- per day. of $20.88 nance in the amount gage perilous voyages in with more appeal. timely Andover filed a wages. It di- promptitude, and at lower plunderage temptation minishes the to III. sickness; upon approach and urges encounter hazards the seamen to Right The Maintenance service, they ship’s from which in the for a living allowance Maintenance is the disposed to with- might otherwise be recovering from he is seaman while ashore draw. Vaughan v. Atkin or illness. injury See Harden, 11 F.Cas. at 483. 997, 1000, 527, 531, 8 son, 82 S.Ct. 369 U.S. admiral- Viewing seamen as of the wards (1962). payment of is L.Ed.2d 88 Cure emphasized has ty, the Court treating expenses incurred medical construed and must be to maintenance cure injury or See Calmar seaman’s illness. consistently expanded the liberally and has 525, 528, 58 Corp. Taylor, v. S.S. 303 right. Vaughan, 369 U.S. scope of the See (1938). 651, 653, The 993 L.Ed. S.Ct. 1000-01; 531-34, at at 82 S.Ct. Warren and cure was duty provide to maintenance 523, 529-30, States, 340 U.S. admiralty American first introduced into 432, 436, (1951); Agui- 95 L.Ed. Story Harden by law Justice decided 933, 729, 735-36, lar, 63 S.Ct. at at 318 U.S. 480, (C.C.D.Me. Gordon, 11 482-83 F.Cas. 529-30, 936; Calmar, at 58 S.Ct. 303 U.S. circuit, 1823) (No. 6,047), decided on Thus, today shipowner is at 653-54. by the and defined recognized first was and cure re- obliged pay to maintenance Osceola, in The 189 U.S. Supreme Court only part; its any on gardless of fault 175, 158, 47 L.Ed. 23 S.Ct. part of the sea- on wilful misconduct (1903). from medie duty The was derived protection. its deprive man will him 169, at at 23 S.Ct. maritime codes. val Id. 730-31, 63 S.Ct. at Aguilar, U.S. at of Oler citing the Rules (quoting 933-34. on, Laws of Wisbuy, and the the Laws responsibility employer’s The Towns); Aguilar v. Standard the Hanse inju beyond and cure extends 6, Co., 724, 730 & n. 63 S.Ct. 318 U.S. Oil ship during on board ries sustained 6, (1943). 930, n. 87 L.Ed. 934 & incurred in any injuries working hours to duty on imposing reason for The subject is the seaman any place while the oft- shipowners is found in American 934; 732, at 63 S.Ct. duty. Id. at the call of Story: language of quoted Justice 529-30, 71 Warren, 340 U.S. see also their by peculiarity (seaman injured are leave Seamen shore S.Ct. at sickness from lives liable sudden dance hall entitled Italian pay obliged to climate, cure). shipowner is exposure perils, The change of the seaman and cure until They generally exhausting labour. they are entitled.3 At cure, is remedies which of maximum point reached the century this the Court beginning of is his condition cured or until the seaman if damage remedy seamen a granted and incurable. permanent diagnosed 5, 1, injuries resulted from unseaworthiness Co., 421 U.S. Motor Ford Vella v. equipment. in her ship or a defect of their 1384, (1975); 1381, 43 L.Ed.2d 95 S.Ct. 175, Osceola, 23 S.Ct. 1000; 189 U.S. 531, See The 82 S.Ct. U.S. at Vaughan, 369 Line, 487; Insular v. Baltimore 276 at Cortes Line Barge American Neville v. 53 S.Ct. Cir.1960). 287 U.S. 117, 118-19 Act, (1932). enacted The Jones L.Ed. 368 right to mainte- The traditional who provides Ship- in the recognized cure was nance and his em- through negligence of Convention, 54 Stat. Liability owners’ entitled to employee is ployer or a fellow made Senate ratified which was President damages. De v. American Zon President by proclamation effective 660-65, Lines, 815- Farrell v. Unit- 1939. See on October Jones Act 87 L.Ed. 1065 511, 517, 69 S.Ct. States, 336 U.S. ed provide action for held to also has been (1949). Article L.Ed. 850 negli- against shipowner a seaman shipowners liability on places Convention and provide maintenance gence failing to during occurring injury and for sickness 375-76, 371-72, Cortes, 287 U.S. at cure. Article 3 de- at employment. Id. 1695. 174; Zon, at 665- De 318 U.S. 53 S.Ct. at lodging. and as maintenance board fines (1943). at 63 S.Ct. 817-19 provides the Convention Article of Id. significant differences There are liable to de- shipowner shall be that “[t]he recent and the more between maintenance and main- care fray expense of medical the out, pointed has As the Court remedies. injured person has the sick or tenance until if cure is certain and more “maintenance point of reached the or has cured” been Farrell, 336 more limited its benefits.” The Conven- Id. at 1696. maximum cure. Although 212. at at U.S. S.Ct. by the Supreme has considered tion been to a entitle a seaman does not mari- reinforcing traditional the Court as compen payment to lump-sum or a pension Vella, 421 maintenance. See right time of earning capacity, disability or lost sate for Farrell, 1384; 5-6, at at 95 S.Ct. any of show absence it is available the 710-11; 517-19, O’Don- U.S. at S.Ct. unseaworthiness, it is ing negligence of or & Dredge Lakes Dock nell v. Great negligence, and by a seaman’s not reduced 488, 491, 87 L.Ed. 63 S.Ct. 318 U.S. provided at the onset it must (1943). only judi injury after illness or and and and cure Historically, finding liability. cial of recovery or during the wages2 unearned provide intended to is only Maintenance were the of the contract until the end compara lodging cost of and To- for the food to seamen. remedies available is entitled quality to the seaman array of ble in only part of day they are benefits, benefits, dismemberment wages have accidental right seaman would 2. The complete according disability pensions the terms able to to if he had been earned usually employment, to bargaining agreement terms of their un- contractual of collective voyage, been of appears the end work until negotiated It on their behalf. ion has and cure to maintenance viewed as incident traditionally the Seafarers the record that International from right. part of considered who agreement provides that members Union (7th Admiralty ed. 52 at 4-83 § on IB Benedict to permanently are disabled entitled 26;7 Norris, 1989); § Seamen The Law M. rang- disability monthly pension in an amount 1985). (4th to unearned ed. The at 15 depending ing the contri- $250 $1000 to on ship relationship wages "springs out employers to made butions seaman's seaman, employ- articles of and not wage, sea- pension plan, the seaman’s as historical basis has the same ment” and length Pension See Seafarers’ man’s Plan, service. Norris, supra, cure. 2 M. silent App. 301. record 26:7 at n. 34. § any union of these Barnes' entitlement benefits, dispo- our is immaterial to but fact in the discussed to the remedies In addition text, death sition. be entitled to seamen unionized maintenance established in col- Calmar, 58 rate of 303 U.S. to at sea. 653; Corp., Dravo bargaining agreement S.Ct. at Cox lective was not en- denied, Cir.) (in banc), (3d cert. forceable as a unionized seaman such as 46 L.Ed.2d 423 U.S. argues Barnes. It that the historical basis (1975). most courts have the 1940’s Since providing maintenance and cure is at day as maintenance generally $8 awarded contemporary reality odds with the for un- Admiralty IB to seamen. Benedict seamen, that maintenance and cure ionized 1989); 4-9, 4-74 ed. G. 51 at 43 at § § obligation subject nego- contractual is a Black, Admiralty The Law Gilmore & C. tiation, governing that labor law 1975). Today, deep most water ed. bargaining preempts the maritime law of appears it unionized and seamen are maintenance, policy re- that national labor agreements in most collective quires enforcement of the collective bar- IB Benedict on corporate the rate. See $8 1989); gaining agreement, and that the collective (7th ed. see 51 at 4-74 Admiralty § Note, Maintenance & Cure: generally bargaining process contained sufficient Right Legal Obligation?, Contract rate. quid quo pro for the low maintenance Tul.L.Rev. 625 primarily opinion Andover relies on the decade some courts past in the Appeals for the Ninth Cir obliged to determine the have been Service, cuit Gardiner Sea-Land for non- rate of maintenance appropriate (9th Cir.), denied, 786 F.2d 943 cert. recognized that the have unionized seamen 93 L.Ed.2d 303 inadequate provide generally rate (1986), and the decisions of the First and higher lodging, and have awarded food and that have followed Gard- Sixth Circuits costs the actual reasonable rates to reflect Although lead. and its iner’s Gardiner See, e.g., Morel v. the seamen incurred. enforced the contract rate of main progeny Co., Transp. F.2d Towing & 669 Sabine Cir.1982) ($20 345, day poli a for on the basis of national labor 347-48 tenance Arthur, Texas); in Port In- maintenance cy, the court held that federal Gardiner Co., 659 Dredging v. American candela preempted legislation has not the labor ($26.80 (2d Cir.1981) day 11, for 14 F.2d maintenance. The court maritime law of City); in York maintenance New Caulfield that the contractual rate should be held 1129, Marine, F.2d 633 v. & D AC long binding so as ($15 (5th Cir.1981) day main- 1132-33 rate of main fair and the process has been Orleans). above, in New As noted tenance subject negotia to real has tenance been courts have set in cases where the those F.2d at 949. tion. Id. 786 for unionized sea- the rate of maintenance men, they generally limited the award have the First and Appeals of The Courts in the union con- specified amount majority’s rea- adopted the Circuits Sixth reasonable ex- regardless of actual tract v. Paul & soning in toto. See Macedo F/V Macedo, 522; F.2d at Al- 868 penses. See Cir.1989); 519, (1st Michelle, 522 868 588; Gardiner, Zawkari, 786 F.2d at 871 Co., Steamship v. American Al-Zawkari holdings It is these latter F.2d at 948-50. (6th Cir.1989). 585, The Sixth 588 871 F.2d found are inconsist- which the district court of the rate opinion stressed Circuit legal right to a seaman’s historical ent with the collective can be set maintenance. right to that the bargaining agreement, but abrogated entirely cannot be IV. Al-Zawkari, 871 F.2d at 588. by contract. Collective Effect of Circuit, addition, which award- the First Agreement Bargaining day provided only the $10 ed a seaman A. contract, distinguished the situa- his union Approach stated, seaman, The Gardiner a nonunionized tion of individual seaman attempt to limit an “[a]n district court argues that Andover contrary to right important would holding that the in this law in a matter of erred as 636 Line, 287 Insular v. Baltimore Cortes it was established.” which principles on 173, 174, 367, 371, 77 L.Ed. 53 U.S. S.Ct.

Macedo, at 522.4 (1932). argu- Andover’s of major premise main- has described Most often mar- preempt the the labor laws ments that employment or a incident to as an tenance for unionized right of itime employment contract. right annexed to the policy re- labor that national seamen or 532, 1000; at 82 S.Ct. at 369 U.S. Vaughan, collectively bar- of quires enforcement Lines, 318 President De American Zon right to mainte- rate is gained for 667, 660, 87 L.Ed. U.S. S.Ct. ques- premise That nance is contractual. O’Donnell, (1943); 318 U.S. at tionable. duty provide mainte- at 491. The S.Ct. the seaman attaches enters nance once B. duty private ship, “a of service De competent abrogate.” agreement is Maintenance Right to Nature of Zon, at 63 S.Ct. at 318 U.S. noted, “the Supreme Court As the under argues the rationale Andover firmly established right was seaman’s maintenance, lying the recognition long before maritime law special status seamen on the predicated and contract.” tort between the distinction admiralty,” longer is no “wards Dock Dredge & Lakes v. Great O’Donnell every case true almost valid. It is Co., S.Ct. U.S. relies concerning right to maintenance has, Although the Court L.Ed. 596 description the sea Story’s on Justice normally associat- times, language used friendless, and “generally poor man as right, see to describe ed with contract gross indulgence, acquiring] habits Oil Standard Aguilar v. carelessness, Harden improvidence.” (1943) 930, 933, L.Ed. 1107 63 S.Ct. (C.C.D.Me. Gordon, 11 F.Cas. implied provision (maintenance is “an (No. 6,047), 1823) Vaughan, cited employment”), the contracts 1000; Aguilar, U.S. at “dif- that maintenance stressed Court has 2; n. at 728 n. normally classified as con- rights fers 525, Taylor, 303 U.S. Corp. v. Calmar S.S. Atkinson, U.S. Vaughan v. 369 tractual.” (1938). 528, 82 L.Ed. 993 S.Ct. 58 532, 8 L.Ed.2d 88 527, 82 S.Ct. arguing in that persuasive is duty the of mainte- Andover (1962). referring to are stated, seamen who unionized today those cure, Supreme the nance and improvident. nor See friendless it its neither in the sense that has it is “Contractual Co., 860 Steamship v. in American is contractual Merchant in a relation which source Cir.1988)(Nelson, 204, (6th J. dis- 212 relation, agreement F.2d no given the origin, but Gardiner, 949. The 786 F.2d at senting); the incident.” competent abrogate Circuit, the Second wages). We also note that suggests has that that circuit held Andover Shortly paid binding. holding should not before the is not in that maintenance rate the contract decision, damages, Circuit reversed Fifth stated the Act the Gardiner be from Jones deducted day a$8 award of mainte court’s a district nance, in the col rate "fixed $8 that the maintenance determination of the for a remanded and agreement fair and was a lective lodging. for food and McWil cost reasonable liams v. party could proper pre-estimate which neither Inc., (5th Texaco, Cir. F.2d 514 781 Hence, not be repudiate. defendant could the 1986). the district court unclear whether It plaintiff say it that when heard rate, a union had contract relied overpaid him.” agreed upon it had amount a Appeals whether such did not Court of discuss Co., 369, F.2d v. Tanker 260 Reardon California binding. that district court in be A rate would curiam), 1958) (in banc) (per cert. Cir. 376 denied, of maintenance held that rate circuit may ment, has 609, 926, 3 L.Ed.2d 628 U.S. 79 S.Ct. 359 agree by a fixed Waterman, concurring, noted Judge Inc., Carriers, F.Supp. v. Dixie Grove necessarily find the the court would that Appeals (E.D.La.1982), has Court of but the binding all bargained rate in situations decide that issue. expressly declined to since had not emphasized case seaman this Express, See Dowdle Offshore Id. rate was insufficient. $8 contended 259, Cir.1987) (holding labor contract at 377. right completely abrogate to unearned cannot 818; that the Seafar- but Garrett v. Moore-McCormack in this case shows record cf. 239, 246, Union, Barnes U.S. S.Ct. 87 L.Ed. 239 International to which ers (individual (1942) may for its members over- seamen execute re- belongs, has obtained pay, right injury vacation allow- lease of maintenance after oc- premium time and ances, shipowner amenities disability pensions, fairly curs where shows was televisions, Furthermore, dryers, bargained). washers Andover con- such breaks, midnight lunches. the union coffee See cedes even could not do so. Gardiner, however, Abrogation, imprecise 786 F.2d at 949. Further- is an con- also more, “help- adjectives cept “friendless” and in this context. acknowl- Andover sail- generally edges used to describe that a union contract could not less” were union foreign ports. change day, Now under rate to a$2 ors quickly abrogation. ill or seamen are which Andover characterizes as contracts repatriated. why retaining id. We fail to see the 1952 rate day day when in 1952 dollars $8 the union changed The circumstances of would have a value of see $32.24 rationale undercut ized App. comparable abroga- is not a right to mainte supporting the traditional Moreover, it is anomalous to decide tion. cure, least for unionized sea nance and right subject whether a can be the of con- Supreme Court has men. tract on the basis of the rate reached depart from its no inclination to shown bargaining. reject therefore the de- We seamen. long-established solicitude nomination of maintenance as contractual so, it does we see no basis to assume Until labels, purpose. Eschewing for this we powerful seamen’s emergence question, the more turn instead to relevant unions, development concerning which the effect the labor on the tradi- laws see, Oil, knowledge, e.g., the Court has full right of maintenance. tional Int’l & Atomic Workers Union Chemical Co., 426 96 S.Ct. v. Mobil U.S. Oil C. (1976); American Ra 48 L.Ed.2d Ass’n, 419 Steamship dio Ass’n v. Mobile Preemption Issue 42 L.Ed.2d U.S. press vigorously continues to Andover (1974); Compania Naviera Hidal Benz argument that the labor laws before us its L.Ed.2d

go, 353 U.S. of maintenance preempted have (1957), justifies ignoring our court, including despite the fact that no frequent pronouncements clear and Court’s Gardiner, adopted theory. It is remain wards of the admiral that seamen Congress is free to alter undoubted that Oil, See, Atomic ty. e.g., Chemical & O’Donnell, 318 statute. Union, 426 Int’l Workers 40-42, at 491. Federal at 63 S.Ct. U.S. (Powell, J., concurring); U.S. S.Ct. at 2147 “subject paramount to the common law is Carriers, 400 U.S. Arguelles, Inc. v. Bulk authority Congress.” City of Milwau- of 409, 411-12, L.Ed.2d 351, 355, 27 91 S.Ct. 304, 313, Illinois, 451 101 S.Ct. kee v. U.S. 207, 209, (1971); Roth, 348 U.S. Cox 1790, (1981) (quoting 1784, L.Ed.2d (1955).5 242, 243, 99 L.Ed. 260 75 S.Ct. 336, 348, York, 283 Jersey v. New U.S. New Moreover, mainte- Andover’s claim that 481, (1931)). 478, 75 L.Ed. 1104 51 S.Ct. with inconsist- nance is contractual beset legislation preempts can, course, Congressional of encies. A contractual speaks direct cases, law when it federal common Supreme Court away. contracted be issue, 451 U.S. at ly question to the at id. shipowner however, clear that the make it 315, 1791, applying and when 101 S.Ct. at sea- with an individual could not contract “rewriting require would the common law completely. abrogate maintenance man to Congress affirmatively and rules that has at Zon, at 63 S.Ct. 318 U.S. De See tanker, large lonely, larly a friendless fact, still to argues continue that seamen 5. In Barnes longer, voyages are habitat. protection because need turn around time shorter, ship, particu- and the 27 L.Ed.2d 400 U.S. Corp. v. Mobil Oil enacted.” specifically (1971). 618, 625, 98 S.Ct. 436 U.S. Higginbotham, (1978). Al- L.Ed.2d 159(a), 9(a), provides 29 U.S.C. Section § of federal preemption test for though majority by a representatives selected test stringent than the is less repre- common law employees be exclusive of shall feder- law because state bargain over preemption employees to of all sentatives issue, City not em- are conditions of rates, wages, alism concerns and other 316-17, protect 101 S.Ct. Milwaukee, designed to This is ployment. presump- “applied bargaining union has uncoerced selection employees. less somewhat statutory preemption representatives tion of NLRB, 633 Coop law than Ass’n v. Dairy maritime Farmers forcefully judge-made to Cir.1980). (3d not It does law” be- common F.2d federal to non-maritime are an rights maritime “expan- speak to whether an have courts the federal cause wheth- subject bargaining appropriate development of play in the to sive role binding bargain make a the union can er Oswego Barge Matter law.” maritime rights. relinquishing maritime Cir.1981). Corp., “invad[ing]” law or Thus, common statutes NLRA, 8(d) 29 U.S.C. Section read with a law are general employers to 158(d),requires unions and § prin- retaining familiar presumption toward respect “with good faith bargain Johnson, 343 ciples. Co. hours, Isbrandtsen and condi- and other terms wages, 96 L.Ed. Although mainte- employment.” tions condition of may viewed as a nance be obligation to bar- general employment, this following points to the Andover speak “directly” to whether gain does Labor Re the National provisions of three by mari- rights that have been established argu preemption support its lations Act through subject derogation time law (1982), 185(a) providing ment: U.S.C. § bargaining. proce grievance judicial for an exclusive some there tension While (1982), 159(a) requiring dure; 29 U.S.C. § enforcing collec- policy of general labor agents exclusive unions to be agreements if the bar- tive 158(d) members; 29 U.S.C. § en- is not of maintenance gained-for rate obligation bargain (1982), an imposing the sort of forced, cry far this is a provisions None of these wages. over gives rise to preemption. conflict that direct directly” propriety of bar “speaks Gardiner, at 947-48. When of maintenance. the rate gaining over preempt common Congress has wished explicitly. For it done so rights, NLRA, 29 U.S.C. 301 of Section Congress amended example, in 1972 “[sjuits for violation 185(a), provides § Compen- Workers’ Longshore Harbor employer and between of contracts (LHWCA), 44 Stat. Act sation brought in may be organization ... labor amended, seq., to elimi- 901 et 33 U.S.C. § hav- the United States court of any district ” liability to shipowner’s traditional nate the parties.... Barnes ing jurisdiction longshoreman for unseaworthiness for violation of brought suit has not shipowner liability to the the stevedore’s contract, on violation merely a suit based resulting in in- service for unworkmanlike Gardiner, law. See of maritime Edmonds longshoreman. See jury to the Moreover, has Supreme Court at 947. Transatlantique, Generale Compagnie 301, a section notwithstanding held that 99 S.Ct. 443 U.S. grievance not bound seaman was (1979). L.Ed.2d 521 required in the col- process and arbitration Edmonds, recognized the Court could con- In contract lective actions, tradi- Congress’ these remedy light of statutory in the older to use tinue clearly longer avail- rights were in federal tional wages to sue for permitting him lim- the Court plaintiffs. able to Arguelles, Bulk Carriers court. U.S. (1949) 93 L.Ed. 850 the amend- 69 S.Ct. effect of preemptive ited Congress explic- (noting organized pressured seamen areas that ments to those deciding In preempt. Congress against substituting itly intended to to elimi- Congress also intended compensation system). whether with a workmen’s “ prin- familiar ‘long-established and nate a Supreme In the words Court Ed- [regarding the maritime law ciple]’ of monds, point we find Andover’s failure to negligence suit longshoreman’s maritime any legislative history indicating that to propor- shipowner] by imposing a against a Congress meant to alter the traditional rule,” Edmonds, at 443 U.S. tionate-fault to maintenance to be “most elo- Isbrandtsen, (quoting 99 S.Ct. at 2757 quent.” provisions Because the Andover 1014),the at U.S. “speak directly” to the relies on do not history of the legislative looked maintenance, question they we hold that of Finding no mention LHWCA amendments. preempt duty pay do not the maritime rule, to alter the traditional of an intention maintenance. elo- “most considered this silence the Court suggest This does not that seamen are to contemplat- such reticence while quent, for strangers to be considered labor law. change ing important and controversial instances, governs national most labor unlikely.... very At the existing law is seamen, unions, the relations between least, expect some hint of a one would See, employers. e.g., NLRB v. and their there change, but purpose to work such Corp., 309 Steamship Waterman 266-67, at 2759 Id. at 99 S.Ct. was none.” 84 L.Ed. 704 We hold 60 S.Ct. omitted). (footnotes also Pacific only any provision that in the absence of Peterson, 278 U.S. Steamship v.Co. speaks the national labor statutes that di- 75, 77-78, 138-39, 73 L.Ed. 220 49 S.Ct. maintenance, rectly question (1928) (Jones that seamen provision Act long- unionized seaman is entitled to that claim does bring negligence may elect right. established remedy mainte- traditional preempt not imply claims and cure or that both nance together); City brought not be D. cf. 317-19,

Milwaukee, 101 S.Ct. at 451 U.S. at Policy National Labor Effect of (where Amendments to the 1792-93 Act cre- Pollution Control Federal Water if the argues Andover that even Na regulatory program comprehensive ated Act is not viewed as tional Labor Relations discharges from treat- concerning limits on maintenance, we should fol preemptive of for Court plants, there was no basis ment the other courts of low the decisions of stringent limits impose more based held that national labor appeals that have law); Oil, maritime Mobil peace encouraging labor policy favor of (where High Death on the through promotion and enforcement beneficiaries, specifically Act covers Seas dictates bargaining agreements collective survival, contributory negligence, and dam- mainte contractually determined spo- Congress ages, Court found majority opin The nance rate be enforced. damages question of “directly” ken on the Gardiner, the most contains ion by pro- Act supplement and would theory Andover complete exegesis of the damages society under viding for loss poli “the broad adopt, asks us to relies on law). laws, as well undergird the labor cies which nature of the collective as the pointed any legisla- Andover has not Gardiner, F.2d at 948. process.” would lead history of the NLRA that tive decision on the court its based Gardiner intended the Congress us to believe bargaining as the importance “speak di- Andover relies on to provisions “ policy ‘the keystone of labor relations right of mainte- rectly” to the traditional encour legislation to national labor of our aware of Congress is and has been nance. negoti management to scope. age both labor right of its the existence of the effectively regulate States, contracts that will ate See Farrell evidence, producing common law burden complex relation- of their every aspect court, (quoting by Winston- district that the $8 at 948-49 credited ship.”’ Id. v. Piedmont Printing Pressmen provide him with Salem rate was insufficient Co., 225-26 Publishing lodging. judicial can take food and We the collec- Cir.1968)). held that The court Philadelphia, as in San Fran- notice that not be agreement should bargaining tive cisco, day ordinarily inadequate to a is $8 agreement as a unless the repudiated lodging. Rutherford, provide food and See inadequate. or as unfair whole is viewed fact, the union F.Supp. at 1370. In sympathetic with Although we are also provides that when rooms contract itself encourage the use that would approach for the crew an allowance are not available reliability of collective ship is in per night is when of $20 per- for know of no basis agreements, we day App. a for food. port, as well as $17 a com- to override mitting such contracts Harper Zapata 170. See Off-Shore right of a seaman mon law maritime (5th Cir.1984) (looking to by the labor laws. preempted has not been provisions as a basis for similar contractual authority for a doctrine cites no Gardiner maintenance). determining rate of agree We “quasi-preemption”. dissenting Judge Fletcher in her position of event, it is any In we conclude that that a union cannot opinion in Gardiner doc with the traditional inconsistent both com- bargain away the individual seaman’s rejection trine of maintenance and with our by agreeing maintenance right mon law by the labor preemption figure daily wholly inadequate to a rate set to hold that the maintenance laws 950. We con- maintenance rate. Id. at bargaining agreement in the collective Congress determines that clude that unless higher binding who can show on a seaman giving the need rise to the circumstances daily expenses.6 changed and that maintenance have for appro- bargaining is now a more ill way with the issue of the priate to deal V. seaman, remedy the common the Rate Maintenance remain in full force. must Calculation of is a suggest that maintenance We do that Barnes is Having determined subject bargaining. There prohibited by day not bound $8 agree parties may be some benefit contract, we provided in the union rate they is a realistic rate of on what believe by presented must reach the second issue expectation that the maintenance with the appeal, daily this whether voluntarily by that rate parties would abide includ by impermissibly rate set the court Judge thereby litigation. avoid Fletch- permanent lodging. ed items of main- suggested bargained for er day the reaching award of its $20.88 left undisturbed un- tenance rate should be together monthly district court added that it is inade- the seaman can show less incurred and expenses Barnes testified he lodging him with food and quate provide daily rate. the total 30 to reach a divided quality he would have of the kind and Barnes’ testi- court referred to The district the vessel. id. at 951 received aboard monthly house- share of the mony that his Service, (citing v. Sea-Land Rutherford gas, for expenses was for $44 $45 hold (N.D.Cal.1983)). F.Supp. 1365 We food, and for home- electricity, $50 $225 in this case whether this need not decide insurance, he incurred and that owner’s with the conclusion position is consistent gas and shore of expenses while on preempt the that the NLRA does not automobile, for automo- his and $50 met his oil for maintenance because Barnes conclusion, Nothing opinion intended in this light nance rate. we do not reach 6. In of this argument good union in that the district court erred faith of the Andover's to reflect on the concluding was insufficient evi- that there behalf of the seamen. pro quo bargaining quid on the mainte- dence of

641 893, 896 Drilling re- Services court also The district insurance.7 bile (5th Cir.1983); Mahramas v. American Barnes incurred testimony that to ferred Lines, 165, F.2d Export Isbrandtsen and laundry, toiletries expenses of $180 Cir.1973). hand, (2d On other essentials, apparently an this was but other family entitled to living with his is seaman testimony in the only because error paid if that he his he shows items is Barnes’ concerning these record or that he family his room and board a month on testimony spent $16-20 he promised that he and was had would If instead App. $18 at 48. toiletries. See, obliged e.g., to do so. McCormick category for the is a month included $180 933, Duvalier, 311 F.2d Corp. v. Shipping essentials, and laundry, toiletries Cir.1963) curiam); (5th (per Flower v. using the district daily rate calculated Nordsee, Inc., (D.Me. F.Supp. be At $15.46. method would court’s 1987). us, counsel for argument before oral case, rate Barnes half of certain the maintenance this conceded that Barnes and recogniz- such as home insurance apparently expenses fixed high, too was awarded at whether he was or sea error, utilities ashore stated that and ing the clerical arrangement long-standing to a pursuant between $15 be amount should correct It is that while with his sister. irrelevant day. recuperating his sister ad- Barnes was with the take issue Andover does not for some of Barnes’ vanced amount objection is ba- figures. more specific Its expenses because these advances were is sic, that the seaman it because contends would be expectation in the that she made put he was only expenses entitled Thus, require- repaid. Barnes satisfies being forced consequence a direct as liability expenses or for the ment that It ar- during recuperation. his ashore live expenses incurred. be perma- who maintains that a seaman gues he question is whether difficult more at sea or ashore lodging he is whether nent for the fixed to maintenance entitled to recover for the not entitled be should in- which he he was ashore costs while lodging permanent cost of prorated sea, or wheth- he was curred even when period maintenance. Barnes’ during the expenses the incremental er he is limited to would elimi- expenses which be permanent food, laundry and the incurred, such gas, electricity, thus the costs for are nated attributable cost of utilities additional insurance. homeowner’s Supreme is no There presence. his is intended Because maintenance found no point, and we have precedent on lodging that one, for the food analyz- substitute case, parties have the cited nor sea, it is enjoyed at parallel may established ing the issue. Some precise expenses only to is entitled awarding the seaman mainte- decisions found seamen, tug- actually incurred. Johnson such as nance for land-based States, operators, work aboard ferry or who boat (1948); regularly day v. Ohio River ships during L.Ed. Shaw Cir.1975); (3d Although these sea- Stankiew sleep F.2d eat ashore. F.2d not cast Corp., men, injured, S.S. ill or v. United Fruit when icz Cir.1956). Thus, be- if a seaman is sailors” the “blue water ashore like their cus- only repair hospitalization they or lives need charged for cause not held that have incurring any expense tomary dwellings, courts family without his daily maintenance. care, entitled to they are also liability for his Admiralty Johnson, IB Benedict on § 333 U.S. at 68 S.Ct. See due. (7th ed. therein Barwick, and cases cited 393; 4-79 to 80 Nichols v. 1989). Cir.1986); Curry v. Fluor 1523-24 any amount surprisingly not did include specific expenses, testimony as to Molander’s bills, expenses which Mo- telephone gave by to available or water reference for the which she testimony. Barnes, lander, Barnes’ to. was at some variance testified but figures, accepted Barnes' The district court contrary general the rule that of an a seaman” propriety In a full discussion read restric- rights should not be seamen’s in these circum- maintenance award of be re- tively that all doubts should Rubin, then a district stances, Judge Alvin at 15 of the seaman. Id. solved favor that main- the notion rejected judge, court omitted). (footnotes only for services payable would be tenance seaman disabled the on board which given by the courts Many the reasons He stated: missed. awarding to land-based for maintenance to a be- deny who, definition, ordinarily To seaman] incur [maintenance seamen lodging and receive lodging he does not cause food and expenses own for problems that ship raises meals aboard applicable to inclusion mainte- are also the simple lines of permanent the prorated would distort costs of nance of the Indeed, the ra- remedy_ lodging by maintenance a blue seaman: status water is allowable admiralty, that maintenance tionale as wards of the of seamen DuPlantis, served 313; have been only Weiss, when meals would 235 F.2d now settled challenges 3; consistency well aboard n. F.Supp. at 14-15 & 313; is enti- tradition, Weiss, seaman that the disabled 235 F.2d at doctrine beyond the paid 14-15, DuPlantis, tled to be F.Supp. voyage, were end of his for those who are provide support need during days only those compensation to be allowed for ineligible for workman’s him ship Weiss, have served would support. which other means of meals, voyage was end it would when at 313. over. heavily on Andover relies Alexandervich Stevedores,

Hudspeth v. Atlantic & Corp., Gallagher Bros. Sand & Gravel Gulf v. (E.D.La.1967) F.Supp. (2d Cir.1961), Harper 298 F.2d 918 omitted). (footnote Co., 741 F.2d 87 Zapata Off-Shore Cir.1984), position that a sea- support its for the Second Appeals As the Court maintains a home ashore is noted, authority, man who of no know Circuit “[w]e regularly incurred costs entitled to have however, holding a seaman is not that for computed in his award. Nei- of his privileges to the traditional entitled provides support ther case Andover voyages his merely because status Harper the Court ashore, It is true or for oth seeks. that short, sleeps he because any lodging Appeals not award bene- pleasant than did is more reasons his lot er during period of cure the fits because his brethren.” Weiss of most of home with his wife stayed seaman at his of N.J., 235 R.R. Central noted, however, The court Cir.1956). and children. any the record was devoid of evidence Louisiana, The Eastern District expense. 741 F.2d lodging that he incurred cases, high of maritime number handles Thus, merely signify a Harper may at 91. notwithstanding that the sea also held that proof, absence of failure such maintaining a incurred the cost man testimony by the that he cost injury, the continued prior to his home recuperat- mortgage he was rent or while lodging during his conva for his paying did hold the ing. Significantly, the court actually incurred is a cost lescence daily mainte- to $20 seaman was entitled DuPlan in maintenance. includable thus solely on evidence nance based Indus., 298 tis v. Willimas-McWilliams provided its seamen with shipowner (E.D.La.1969). To hold oth F.Supp. when it sent them daily allowance for food erwise, “would not explained, court stormy during weath- ashore for school or theory underlying only do violence er. Id. maintenance, provide compensa which is to cites, Alexan- The other case Andover pay the care of the sufficient to tion dervich, on maintenance but on including focuses not seaman, necessarily his “found,” suing tort an amount a seaman also restrictive lodging expense, but would earnings claim in his loss of by may include actually incurred ly the costs define ... seamen, argument lodging inap- he land-based the meals and the value of plicable to Barnes. Barnes was not shore- if he had remained have received would suggest does not A seaman is enti- bound and Andover that employed as a seaman. if only wages contemplation in tort he incurs his were fixed in to “found” tled at 921. lodging. providing lodging. Id. his own food and expenses for food his Thus, that because Appeals held that The Court the fact Barnes chose to use his Alexandervich, galley, tugboat in a a cook wages to maintain on-shore residence fam- himself and his maintained a home for than on entertainment or on some rather Island, include he could not ily on Staten frivolity should not be used to reduce his part of his compensation lodging as recovery, particularly since there is no out-of-pocket damages was limited to but question any recovery here of double as lodging expenses incurred for food wages. result of land-based if he were which he would not have borne guidance Supreme We find some However, 922.8 tort tug. on the Id. at Atkinson, Vaughan Court’s decision in “found,” are calculated damages, such 88 369 U.S. S.Ct. L.Ed.2d including any loss of in-kind income (1962),where the Court held that a disabled and board which the seamen such as room seaman who had been forced to find em- Maintenance, earned. would have ployment employer had failed because hand, designed provide the sea- to other pay him the to which he to expend. he must men with funds that was entitled could recover entire main- recognize logic in And- We there is some offsetting him tenance due without allowing that mainte over’s contention earnings. Although amount of his for shore-bound seamen constitutes nance designed Court rationalized its decision as has stated recovery. double One treatise any employers to preclude inducement logic was that the life of “[i]f as a means of forc- withhold maintenance that experience, might it be assumed not work, ing seamen to the Court reiterated denied to maintenance awards would be that heretofore has “the liberal attitude who live at home and shore-based workers maintenance, regard id. obtained” provide their own sustenance.” G. Gilmore principle and the 82 S.Ct. at Black, Admiralty 305 and C. The Law of regard ambiguities or doubts in 1975). objec (2d principal ed. One “are resolved favor of lodging recovery permanent tions to S.Ct. at 1000. seaman.” Id. paid to land-based costs in maintenance Furthermore, concern for the traditional wages, unlike those of seamen is that being applicable to this the seaman’s well sailors, deep-sea computed with the ex is entitled to situation because a seaman they need to maintain pectation that will voyage wages only until the end of on shore. But see Crooks v. themselves peri- employment the end of his contractual States, 459 F.2d Cir. Osceola, od. The 1972) recovery argument (rejecting double After 47 L.Ed. 760 S.Ct. grounds). also Harden v. on historical lapses he is entitled wage obligation (C.C.D.Me. Gordon, 11 F.Cas. cure, unless he only to maintenance Black, 1923) (No. 6047); & C. G. Gilmore employer negli- against the has a claim (2d 1975). ed. Admiralty 305 The Law of Then, if the gence or unseaworthiness. adequate mainte- deprived of seaman is the merits of the double Whatever lodging his ex- ground that nance on the recovery objection for denied, Cir.1949), cert. entitled to "found” court also held he was (1950)). we have not both. 298 F.2d at 922. or maintenance but 94 L.Ed. 561 employee also held that when an This court has ex the non-incremental not considered whether damages Act for under the Jones lost recovers earnings may an element of penses be included as "found,” wages include both case before us is no claim in the "found.” There for the same he not recover maintenance element of "found” as an that Barnes received Shaw, (citing McCarthy period. F.2d at 200 with Andover. his settlement Corp., F.2d 727 American Eastern incremental, VI. no funds he has pense was lodgings. pay for his which to Cf. Summary (holding shore- Weiss, F.2d at rate of determined that We have mainte- ineligible for to be bound seamen bar- forth in the collective maintenance set ineli- class create a of workers nance would binding on agreement is not gaining ineli- but also receive maintenance gible to Barnes, ex- his actual proved who compensation). gible workman’s to receive We in excess of amount. penses were reasons, conclude we For all of the above are, course, aware that this decision of maintain a water seamen who that blue in circuits. We can a division the creates in their to include ashore are entitled home however, find, Supreme reason in no expenses their of maintenance calculation the depart us to precedent to lead in with connection actually incurred in favor of scope of maintenance traditional lodging, prorated for the permanent in daily rate included adequate than a less Thus, the district maintenance. period of agreement. If bargaining the collective including err in Barnes’ share court did not as su- is to be viewed the contract rate bills, as monthly gas and electric the of maritime rule long-standing perseding the home insurance. well as recovered, it can be expenses that actual court, Congress, not this be and must hand, agree with other we On the policy decision. makes not in should that maintenance Andover the district agree with We therefore (gas, expenses oil automobile clude Barnes’ its award of main- court’s decision to base insurance) Barnes or his toiletries. actually expenses Barnes tenance the the automobile to he needed testified that agree district We also with the incurred. App. at 48. doctor. go to and from the include as properly that Barnes could court has, discus without Although one court lodg- expense the cost the of sion, transportation to the cost of permitted prorated the year, all ing he maintained in the cal to be included medical facilities a decision is Such period of maintenance. maintenance, Autin v. Otis see culation of underlying the principle with the consistent F.2d 197 Cir. Engineering Corp., 641 land- awarding maintenance even to cases curiam), that ex 1981) (per we believe we con- seamen. because based medical in with penses connection incurred expenses Barnes’ automobile clude that considered appropriately visits are more improperly toiletries included were part of cure. maintenance, vacate we will the award addition, has tra- In because this order and remand the district court’s payment ditionally described as been the district court for reconsidera- case to see, Vaughan, 369 lodging,” e.g., “food and to be tion of the amount maintenance we see previously on the record awarded based expenses other why reason automobile made, entry consistent and for of an order borne transport be than for medical should opinion. this with why any category or by the shipowner mainte- as toiletries be included should LIFLAND, Judge, dissenting. District have looked to as we nance.9 Inasmuch holding of respectfully dissent from the I scope the in conclud- traditional the mainte- rate of majority that the by the the bound ing that the seaman not bargaining in the collective rate, nance set forth definition traditional contractual Thus, binding on Barnes agreement is not we disregarded here. should not be congressional determi- must be a court that there remand the district conclude that on is now a bargaining nation that collective costs from the these should exclude way deal the is- appropriate more amount of maintenance. establishing the ex- has the burden of ordinarily Laundry expenses, borne Drilling Curry Servic- penses es, Inc., v. Fluor incurred. had there ship, been would have includable (5th Cir.1983). support an award. The been such evidence employ- conditions terms and seamen, and other if the ill or of the sue myriad in a benefits ment which results prevail. is to rate collectively-bargained environment. appropriate to the result as the same reach I would the few will receive Mr. While Barnes have con- which Appeals1 Courts three his proven he has which dollars to extra have held question precise this sidered holding entitlement, in accordance with context collective seamen unionized majority, no other can be right of law common anything with- may receive in this Circuit between agreement by an measured expenses, perhaps actual proving their out duly-chosen and the employer Mr. has com- as Barnes in a suit such employees representative least, negotiated very menced. At the view, my right. possess who the seamen between settlement any accommoda- attempt does majority every case. necessary in employer will in conflict policies tion of settle- negotiated see such I fail to how did. case, courts other those this the seamen materially better for ment un- negotiated by their the settlement than conclusion majority’s agree with the I expense to the seamen. no additional ion at not have does maintenance right to why the seamen them- reason There except in the sense genesis contract its unions, in the cannot selves, through their relation which in a its source it has here be relied presented circumstances agree with the I also origin. contractual right to the common protect upon to labor majority conclusion against abrogation. right of main- preempted not laws have view, not striven majority has my me, it is to the tenance; it is clear inherent in the conflict to accommodate “di- spoken has not Congress majority, I do so case. would of this facts right of mainte- the traditional rectly” to challenge to reverse, any given lack laws enacting the various nance fair duty of discharge of its the Union’s policy. labor the national comprise representation. view of from the depart I what rejects seemingly it because majority of the accommodation obvious me is an right of main- policy and labor

national reaches the same majority

tenance. had Mr. reached that would result TELECOMMUNICATIONS, VANGUARD or had been non-union Barnes INC., Appellant, of main- no mention there been agree- in the collective tenance TELE- NEW ENGLAND SOUTHERN under which there ment, circumstances COMPANY; CSX PHONE right to between no conflict would be Lightnet. Corporation, policy. labor national and the 89-5550. No. Appeal believe, the Courts as did I Appeals, Al-Zawkari, Court of States Gardiner, Macedo Circuit. Third conflict a fair resolution there is and the right of between 11, 1989. Dec. Argued here, where, as fair policy labor national 30, 1990. March Decided in a mea- bargaining has resulted collective Rehearing En Banc Rehearing and bargain- right. Collective of that surement 23, May Denied it right when abrogated ing places a right and recognizes the clearly context right, in the on the dollar value wages, hours over Cir.1989); Michelle, (1st F.2d 519 Service, &Paul v. Sea-Land

1. Gardiner Steamship v. American denied, Al-Zawkari Cir.), (9th cert. Cir.1989). (1986); Macedo F/V 93 L.Ed.2d

Case Details

Case Name: George Barnes v. Andover Company, L.P.

Court Name: Court of Appeals for the Third Circuit

Date Published: Apr 25, 1990

Citation: 900 F.2d 630

Docket Number: 86-1508

Court Abbreviation: 3rd Cir.