Dowdle v. Offshore Exp., Inc.

• Decision Date: 09 February 1987
• Docket Number: No. 85-3520,85-3520
• Citation: 809 F.2d 259
• Parties: Claudius M. DOWDLE, Plaintiff-Appellant, Cross-Appellee, v. OFFSHORE EXPRESS, INC., Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 259

809 F.2d 259

86 A.L.R.Fed. 379

Claudius M. DOWDLE, Plaintiff-Appellant, Cross-Appellee, v. OFFSHORE EXPRESS, INC., Defendant-Appellee, Cross-Appellant.

No. 85-3520.

United States Court of Appeals Fifth Circuit.

Feb. 9, 1987.

Bonnie L. Zakotnik, Heisler & Wysocki, New Orleans, La., for plaintiff-appellant, cross-appellee.

Henry S. Provosty, Burke & Mayer, James O. M. Womack, New Orleans, La., for defendant-appellee, cross-appellant.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, RANDALL and JOLLY, Circuit Judges.

RANDALL, Circuit Judge:

This appeal concerns a seaman's suit under the general maritime law against his former employer to recover maintenance, cure, unearned wages, punitive damages, and attorney's fees for illness sustained while in the service of the employer's vessel. We affirm the district court's award of cure and denial of punitive damages and attorney's fees, but reverse and remand the district court's denial of unpaid wages and award of maintenance.

I.

A.

In November of 1983, plaintiff Claudius M. Dowdle signed an employment contract with defendant Offshore Express, Inc. ("Offshore"), agreeing to work as an engineer off the coast of Diego Garcia aboard the M/V Ellen-F McAllister, a deep sea tugboat owned by Offshore. ¹ The contract provided for a bonus to be paid upon "the successful completion of six months of service," and further provided that if the employee became injured or ill during the term of the contract and was unable to return to his position aboard the vessel, he would be repatriated at Offshore's expense and his wages would cease upon repatriation.

Dowdle began working aboard the M/V Ellen-F McAllister on November 30, 1983. In early March of 1984, Dowdle complained of dizzy spells and was admitted to the Naval Hospital in Diego Garcia, where he was prescribed medicine and bed rest. Dowdle was discharged of his duties aboard the Ellen-F McAllister on March 30, 1984, and was repatriated to Louisiana.

On April 7, Dowdle was admitted to the East Jefferson Hospital in Louisiana. After seven days of testing, Dowdle was discharged from the hospital with no objective indication of cardio-vascular illness or neurological disfunction. On April 23, Dowdle was released by his referring physician as fit to return to his regular work duties. Dowdle was scheduled for a neurological evaluation following his discharge from East Jefferson Hospital but failed to keep his appointment.

Offshore offered Dowdle a position as a training engineer on a supply boat, but Dowdle refused the position as being too strenuous and resigned his employment with Offshore in May, 1984. ²

Beginning May 1, 1984, Dowdle worked for John Graham, Inc. for a two-week period. Dowdle then worked for CalDive International, Inc. His later employment with Otto Candies, Inc. continued up to the time of the trial. Throughout his employment with these maritime corporations, Dowdle experienced dizzy spells.

While working as an engineer for Otto Candies aboard the M/V Prudence Candies, Dowdle suffered a severe episode of unconsciousness. On March 1, 1985, Dowdle was again admitted to the East Jefferson Hospital, and was diagnosed as suffering from multiple episodes of slowing of heart rhythm and symptoms of loss of consciousness. On March 7, a cardiological surgeon implanted a pacemaker in Dowdle's chest. Dowdle has not experienced dizziness or unconsciousness since the implantation of the pacemaker.

Medical testimony at trial indicated a causal relationship between the dizzy spells manifested aboard the M/V Ellen-F McAllister and the change in heart rhythm that necessitated the pacemaker implantation in March, 1985. Such testimony also indicated that Dowdle's condition had steadily worsened since he was first diagnosed.

B.

In late July of 1984, Dowdle had sought legal assistance because medical bills, incurred as a result of his stay in East Jefferson Hospital in April, 1984, had not yet been paid by Offshore. In August of that year, Dowdle brought suit against Offshore, seeking maintenance, cure, unearned wages and bonuses, punitive damages, and attorney's fees resulting from his illness aboard the M/V Ellen-F McAllister.

After a one-day bench trial, the district court found that Dowdle reached "maximum cure" following the implantation of the pacemaker on March 7, 1985. The court awarded maintenance and cure to Dowdle from the time of his initial repatriation up to the date of maximum cure, excluding from the maintenance award those days spent in the hospital. The court found, however, that Dowdle had waived his right to unearned wages by a clause in his employment contract providing as follows: "If the Employee is injured or becomes ill during the term of the contract and is unable to return to his position aboard the Company vessel, he will be repatriated at the expense of the Company and his wages will cease upon repatriation." Relying upon a district court decision that the rate of maintenance payments may be fixed by a collective bargaining agreement, Grove v. Dixie Carriers, Inc., 553 F.Supp. 777 (E.D.La.1982), the district court reasoned that if maintenance payments may be regulated, unearned wages may be regulated as well. Finally, the district court found that the evidence did not warrant an award of punitive damages.

Dowdle appeals the district court's refusal to award unearned wages and punitive damages. Dowdle argues that unearned wages, like maintenance and cure, are not subject to contractual abrogation. Dowdle attacks the denial of punitive damages and attorney's fees as clearly erroneous, asserting that the evidence did support such an award.

Offshore cross-appeals, arguing that Dowdle forfeited his right to maintenance and cure, and, alternatively, that Dowdle's employment aboard three other ships during the period in question placed exclusive, or at least proportionate, responsibility on those employers for the time Dowdle worked for them.

We grant in part and deny in part both the appeal and the cross-appeal.

II.

The appeal presents the novel question of whether an injured seaman's right to unearned wages may, unlike his right to maintenance and cure, be abrogated by a contractual provision. Finding no reason to treat unearned wages differently, at least in this context, from maintenance and cure, we reverse the decision of the district court.

Dowdle attacks the district court's decision, arguing first that because the contractual clause in question refers only to "wages," and not to the seaman's right to unearned wages, the right to unearned wages is not called into question by the provision. Second, Dowdle criticizes the district court's reliance on Grove v. Dixie Carriers, Inc., 553 F.Supp. 777 (E.D.La.1982) (rate of maintenance payments may be fixed by collective bargaining agreement), as support for its reasoning that, since the rate of maintenance may be regulated by contract, unearned wages may also be regulated by contract. Dowdle distinguishes regulation of the rate of maintenance payments, as in Grove, and the complete abrogation of the seaman's right to unearned wages suggested by the contractual provision in question here. Contractual abrogation of the right to unearned wages, like abrogation of the right to maintenance and cure, cannot be judicially countenanced. Finally, Dowdle argues that the provision is ambiguous and parol evidence suggests the parties never intended it to apply to cases such as that of Dowdle.

Offshore, on the other hand, applauds the district court's reasoning, adding only that the shipowner has traditionally been authorized to set out in the articles the contractual period of employment. Since the provision had the effect of limiting Dowdle's period of employment, the district court's recognition of the provision was justified in maritime law.

An injured seaman's right to unearned wages, maintenance, and cure has been legally recognized for almost one thousand years. See 2 M.J. Norris, The Law of Seamen Sec. 26:3 & n. 4 (4th ed. 1985). The Laws of Oleron, frequently cited as the blueprint for subsequent medieval maritime codes, provided for the injured seaman as follows:

If it happens that sickness seizes on any one of the mariners, while in the service of the ship, the master ought to set him ashore, to provide lodging and candlelight for him, and also to spare him one of the ship-boys, or hire a woman to attend him, and likewise to afford him such diet as is usual in the ship; that is to say, so much as he had on shipboard in his health, and nothing more, unless it please the master to allow it him; and if he will have better diet, the master shall not be bound to provide it for him, unless it be at the mariner's own cost and charges; and if the vessel be ready for her departure, she ought not to stay for the said sick party--but if he recover, he ought to have his full wages, deducting only such charges as the master has been at for him. And if he dies, his wife or next kin shall have it.

Laws of Oleron, art. VII, reprinted in 30 F.Cas. 1171, 1174-75 (1897) (appendix) (footnote omitted). The United States courts have long enforced the seaman's right to maintenance, cure, and unearned wages. See The Osceola, 189 U.S. 158, 175 (1903) ("the law may be considered as settled upon the following propositions: 1. That the vessel and her owners are liable, in case a seaman falls sick, or is wounded, in the service of the ship, to the extent of his maintenance and cure, and to his wages, at least so long as the voyage is continued."); see also Justice Story's exhaustive review of policy concerns and foreign and medieval authorities supporting the award of maintenance and cure in Harden v. Gordon, 11 F.Cas. 480, 482-83, 2 Mason 541 (C.C.D.Me.1823) (No. 6,047). Because of the centuries of litigation requesting enforcement of this triumvirate of rights, courts and commentators have held...