990 F.2d 885 (6th Cir. 1993), 91-2274, Blainey v. American S.S. Co.

Docket Nº:91-2274.
Citation:990 F.2d 885
Party Name:Robert BLAINEY; Donald Larson; Mosa Mosed Said; Charles Reed; Carl Mayhew; Vincent Sylvis; Stanley Beckish; Albert Merchant; Martin Tighe; Said Mudhegi; Richard Waeme; Robert La Haie; Ali Yaha; and Thomas Puharic, on behalf of themselves and other Great Lakes Seamen paid maintenance by Defendants but not unearned wages, Plaintiffs-Appellants, v. AM
Case Date:April 06, 1993
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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990 F.2d 885 (6th Cir. 1993)

Robert BLAINEY; Donald Larson; Mosa Mosed Said; Charles

Reed; Carl Mayhew; Vincent Sylvis; Stanley Beckish;

Albert Merchant; Martin Tighe; Said Mudhegi; Richard

Waeme; Robert La Haie; Ali Yaha; and Thomas Puharic, on

behalf of themselves and other Great Lakes Seamen paid

maintenance by Defendants but not unearned wages,




Inc.; Huron Cement; Rouge Steel Company;

Interlake Steamship Company; and

Cleveland Cliffs Iron Company,


No. 91-2274.

United States Court of Appeals, Sixth Circuit

April 6, 1993

Argued Dec. 8, 1992.

Rehearing Denied May 4, 1993.

Rehearing and Rehearing En Banc

Denied May 27, 1993.

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Dennis M. O'Bryan (argued and briefed), O'Bryan Law Center, Birmingham, MI, for plaintiffs-appellants.

Thomas W. Emery, Daniel S. Saylor (argued and briefed), Garan, Lucow, Miller, Seward, Cooper & Becker, Detroit, MI, for American S.S. Co.

Robert H. Fortunate, Foster, Meadows & Ballard, Detroit, MI, for Bob-Lo.

Richard A. Dietz, Foster, Meadows & Ballard, Detroit, MI, for Cleveland Tankers, Inc.

Richard C. Sanders, Hill, Lewis, Adams, Goodrich & Tait, Detroit, MI, for Huron Cement.

Paul D. Galea (argued), Foster, Meadows & Ballard, Detroit, MI, for Rouge Steel Co., Interlake S.S. Co.

William D. Carle (argued), Ray, Robinson, Hanninen & Carle, Cleveland, OH, for Cleveland Cliffs Iron Co.

Before: GUY and NORRIS, Circuit Judges; and BROWN, Senior Circuit Judge.

ALAN E. NORRIS, Circuit Judge.

This class action invokes our admiralty jurisdiction and raises the issue of whether Great Lakes seamen who become sick or injured while on a voyage can recover unearned wages beyond the end of that voyage. The seamen plaintiffs appeal the district court's grant of summary judgment to the seven shipowner defendants. We arrive at the same result as did the district court concerning six of the defendants and affirm its judgment, albeit upon different reasoning. We remand the cause against the seventh shipowner for further proceedings.

I. Admiralty Law Background

Rather than relying upon the protection of workers' compensation statutes, seamen who suffer illness or injury on the job look to a unique package of remedies.

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Due to "historical tradition and the realization that seamen are required to endure special perils and hardships," federal common law of the sea accords seamen special relief not available to other workers, including maintenance, cure, and unearned wages. 1 Thomas J. Schoenbaum, Admiralty and Maritime Laws § 5-1 (1987). Maintenance refers to a shipowner's obligation to provide a mariner with food and lodging if he becomes injured or falls ill while in service of the ship, while cure alludes to the duty to provide necessary medical care and attention. See Al-Zawkari v. American S.S. Co., 871 F.2d 585, 586 n. 1 (6th Cir.1989). A shipowner is liable to pay maintenance and cure to the point of maximum cure, that is, when the seaman's affliction is cured or declared to be permanent. See Farrell v. United States, 336 U.S. 511, 517-19, 69 S.Ct. 707, 710-11, 93 L.Ed. 850 (1949). Finally, a shipowner must also pay a stricken seaman's unearned wages "at least so long as the voyage 2 is continued." The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760 (1903) (quoted in McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991)).

The shipowner's obligation to pay maintenance, cure, and unearned wages can be traced to several longstanding policy rationales articulated in admiralty case law. First, it recognizes the unique relationship of sailors to their ships, which, when at sea, approaches "personal indenture." Pacific S.S. Co. v. Peterson, 278 U.S. 130, 137, 49 S.Ct. 75, 77, 73 L.Ed. 220 (1928). The shipowner's duty also recognizes the difficulty of a seaman's work, and protects injured mariners from being put ashore and abandoned in a foreign port. See 2 Martin J. Norris, The Law of Seamen § 26.9 at 23-24 (4th ed. 1985). As Justice Story noted in his thorough analysis of the subject, the obligation to pay maintenance, cure, and unearned wages also aligns the shipowners' interests with the health of their seamen, preserves an important class of citizens needed for national commerce and defense, and encourages seamen "to engage in perilous voyages with more promptitude, and at lower wages." Harden v. Gordon, 11 F.Cas. 480, 483 (C.C.D.Me.1823). See also Vella v. Ford Motor Co., 421 U.S. 1, 3-4, 95 S.Ct. 1381, 1382-1383, 43 L.Ed.2d 682 (1975) (maintenance and cure duty "fosters the combined object of encouraging maritime commerce and assuring the well-being of seamen").

For these reasons, a shipowner's ancient duty to pay maintenance, cure, and unearned wages is imposed by the law itself as an obligation annexed to the employment; it exists regardless of any employment contract, including a collective bargaining agreement. See Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 371, 53 S.Ct. 173, 174, 77 L.Ed. 368 (1932). Thus, the duty to provide maintenance, cure, and unearned wages cannot be entirely abrogated by contract, although this circuit has held that a seaman's right to these remedies can be modified and defined by contract. Al-Zawkari, 871 F.2d at 588. See also Dowdle v. Offshore Express, Inc., 809 F.2d 259, 263-64 (5th Cir.1987) ("there is a fundamental difference between contractual regulation of the rate of maintenance payments and contractual elimination of such payments altogether").

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With these principles in mind, we turn to the facts of this case, many of which have been stipulated by the parties.

II. Facts

For over 150 years, it has been the unbroken custom of the Great Lakes sailing trade to pay unearned wages only until the end of the voyage on which a sailor is injured or falls ill. Accordingly, if a seaman was injured while the ship was out of port, he would receive the wages he would have earned to the end of the voyage, but after the ship arrived at port, he collected only maintenance and cure, even if he were forced to miss future journeys with his ship. Under this custom, a voyage is a port-to-port trip; a trip "from an unloading port to a loading port or vice versa."

In 1985, twelve sailors challenged this custom by bringing this suit in the United States District Court for the Eastern District of Michigan against the defendant corporations, which operate ships on the Great Lakes. All plaintiffs were injured or became ill while in service of their ships. They did not dispute that they had received appropriate sums as maintenance and cure, nor that they had received unearned wages to the end of the voyage on which they were injured or fell ill. They claimed, however, that they should have received unearned wages beyond the end of the journey to the end of their "term of employment," that is, either to the end of the Great Lakes sailing season, to the end of a pay period, or to the termination of the articles under which they served.

Defendant shipowners operate vessels carrying various commodities, such as iron ore, coal, and limestone, between upper and lower Great Lakes ports. Also represented are operators of tankers and excursion vessels. Depending upon their type, these vessels normally are in their home ports at least every three days, some more frequently. Excursion craft are never more than an hour away from port.

The plaintiff seamen serve under agreements called "articles." Traditionally, articles are a type of engagement agreement between the crew members and the employer shipowner, in which the employer agrees to pay wages for services rendered by the seamen. Articles are required by statute, and must specify the "nature of the voyage or the period of time for which the seaman is engaged." See 46 U.S.C. §§ 10501-02. All the plaintiff seamen are also covered by collective bargaining agreements negotiated by their unions with the defendant shipowners, and the parties have stipulated that

if the [articles'] provisions are in conflict with the applicable collective bargaining agreement, then the latter controls. Despite the use of the articles by Great Lakes vessel owners, it has never been the intention of the shipowner or seamen that a seaman was bound to the ship (or required to remain in the shipowner's employment) for the period of time specified in the articles ... nor has it been the intention of either that the shipowner be bound to provide employment during the stated term, unless provided for in the applicable collective bargaining agreement.

Thus, in Great Lakes shipping practice, the shipowners have regarded articles primarily as a roster of crew members. The collective bargaining agreements, by contrast, cover the terms and conditions of employment of sailors aboard ship, such as rates of pay, wage computation, working conditions, right to employment, periods of employment, vacations, certain aspects of medical care, pensions, sickness and accident benefits (in some instances), overtime, and transportation. Moreover, they specify that maintenance shall be paid at a stipulated rate, though they make no reference to unearned wages.

No agreement now in force between plaintiffs and defendants provides for the payment of unearned wages for any specified period of time, and no union has raised unearned wages as a topic of collective bargaining. Defendants have no record of any union having filed a grievance for failure to pay unearned wages, nor are any of the unions a party to this case.

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III. District Court Proceedings

The district court denied motions to dismiss by various defendants and, in November 1987, certified this case as a class action.

In December 1989, the district court granted plaintiffs' motion for partial summary judgment against...

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