Flores v. Carnival Cruise Lines

• Decision Date: 21 March 1995
• Docket Number: No. 93-5209,93-5209
• Citation: 47 F.3d 1120
• Parties: , 63 USLW 2605 Mario FLORES, Plaintiff-Appellant, v. CARNIVAL CRUISE LINES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1120

47 F.3d 1120

1995 A.M.C. 1360, 63 USLW 2605

Mario FLORES, Plaintiff-Appellant, v. CARNIVAL CRUISE LINES, Defendant-Appellee.

No. 93-5209.

United States Court of Appeals, Eleventh Circuit.

March 21, 1995.

Sharon L. Wolfe, Cooper & Wolfe, P.A., Miami, FL, for appellant.

John W. Keller, Keller, Houck & Shinkle, P.A., Keith E. Hope, Law Offices of Keith Hope, Miami, FL, for appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before KRAVITCH and CARNES, Circuit Judges, and HILL, Senior Circuit Judge.

CARNES, Circuit Judge:

This case presents a novel question: if a seaman whose income consists mainly of tips becomes ill or injured and is unable to work, can he recover those tips under the remedy for wages that is provided by admiralty law? We hold that the average tip income the seaman was earning prior to his incapacitation is to be included in the measure of wages he is due if he becomes unable to work.

I. FACTS AND PROCEDURAL HISTORY

Mario Flores is a seaman who signed two consecutive employment contracts to work as a cabin steward on cruise ships owned by Carnival Cruise Lines. Flores entered his first contract with Carnival in September 1991 to work for one year on the MS Ecstasy. The contract promised Flores a salary of $45 a month, to be paid every two weeks, and further provided:

If you have been contracted as a ... CABIN STEWARD, in addition to your monthly salary you may expect daily tips for your services to the passengers .... [T]he tips you may expect go as high as $1000.00 a month. Carnival will take it upon itself to inform passengers of what is customarily tipped for the work that you perform.

The underlined words and figures were typed into blank spaces on the original printed form.

Flores claims that he worked on the Ecstasy until April 27, 1992, earning tips of $800 a week. Then he fell ill and went ashore for medical treatment. While ashore, Flores received bi-monthly checks for "unearned wages" from Carnival in the amount of $161.97. That amount was the same as Flores's vacation pay would have been, and it was equal to the wages of the lowest-paid non-gratuity-earning crew member.

Flores stayed ashore from April 27, 1992, until his first contract expired at the end of September 1992. When his first contract expired, Flores signed a second, six-month contract to work on the MS Fantasy. The second contract contained exactly the same payment terms as the first. Flores claims that he worked on the Fantasy from September 28, 1992, to October 19, 1992, earning tips of $600 a week. On October 19, the ship doctor sent him ashore again, where Flores remained until the expiration of his second contract.

Flores filed a class action suit under Fed.R.Civ.P. 23 against Carnival Cruise Lines, seeking compensatory and punitive damages on behalf of all tip-earning crew members of the Carnival Cruise Lines fleet who became sick or were injured in the three years preceding the filing of Flores's suit and who did not receive "reasonably anticipated lost tips or in the alternative, monthly guaranteed tips." Carnival filed a motion to dismiss the complaint, maintaining that it had no legal duty to pay Flores anything more than his $45-per-month salary as unearned wages.

A magistrate judge first issued an order treating Carnival's motion to dismiss as a motion for summary judgment, and then issued a report and recommendation concluding that "tips which are not guaranteed, ... and not specific ... would not be appropriately includable as wages...." However, finding merit in Flores's contention that he had been guaranteed tips by Carnival, the magistrate judge determined that a genuine issue of material fact existed to preclude summary judgment. Carnival filed an objection to the magistrate judge's report and recommendation.

"After a de novo determination, and considering the Report and Recommendation, the written objections, and the record herein," the district court entered an order granting summary judgment for Carnival on both the compensatory and punitive damages claims based upon its determinations that the written contract did not guarantee "any particular amount of tips" to Flores and that any alleged oral promise of tips made at the time Flores signed the contract was merged into the written agreement and barred by the parol evidence rule. Flores appeals the summary judgment ruling.

II. DISCUSSION

We review de novo a district court's grant of summary judgment, considering the evidence in the light most favorable to Flores. First Union Discount Brokerage Serv. v. Milos, 997 F.2d 835, 841 (11th Cir.1993). Because we have no precedent directly addressing the issue of whether a sick or injured seaman whose income consisted primarily of tips may recover lost tip income as part of the wages remedy, we consider the purposes and policy underlying the maritime remedy for wages, the decisions of courts that have considered similar questions under the rubric of nonmaritime workers' compensation law, and the actual wording of Flores's contract. These factors lead us to conclude that Flores may recover his average tip earnings as unearned wages.

A. THE INCLUSION OF TIPS IN THE MEASURE OF UNEARNED WAGES UNDER ADMIRALTY LAW

1. The Purpose and Policy Underlying the Wages Remedy

Under general maritime law, Flores is entitled to bring an action for "maintenance and cure," a remedy available to compensate seamen who fall ill or become injured during their employment. "The cause of action for maintenance and cure includes three specific items of recovery: (1) maintenance, which is a living allowance; (2) cure, which covers nursing and medical expenses[;] and (3) wages." Herbert R. Baer, Admiralty Law of the Supreme Court 6 (3d ed. 1979); see 1B Benedict on Admiralty Sec. 43 (Aileen Jenner ed., 7th ed. 1994); Grant Gilmore and Charles L. Black, Jr., The Law of Admiralty 309 (2d ed. 1975). Unearned wages are measured from the time of the seaman's incapacity until the end of his employment contract. See Archer v. Trans/American Serv., Ltd., 834 F.2d 1570, 1575 (11th Cir. 1988).

Although the recovery of unearned wages technically is a separate element of recovery from those for maintenance expenses or cure expenses, "it is settled law that wages is a basic component of an award of maintenance and cure." Id. at 1574. For that reason, our references to "maintenance and cure" are meant to include the wages remedy. Maintenance and cure is a remedy with roots in the medieval sea codes; ¹ it is a remedy designed to protect seamen from the perils of living and working at sea. To recover in a maintenance and cure action, the seaman need not suffer from illness or injury that is causally related to his duties, Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 527, 58 S.Ct. 651, 653, 82 L.Ed. 993 (1938), as long as the seaman's incapacitation did not result from his own wilful misconduct. Garay v. Carnival Cruise Line, Inc., 904 F.2d 1527, 1530 (11th Cir.1990), cert. denied, 498 U.S. 1119, 111 S.Ct. 1072, 112 L.Ed.2d 1178 (1991). ²

The seaman's right to maintenance and cure was firmly endorsed in Harden v. Gordon, a famous circuit opinion by Justice Story:

Seamen are by the peculiarity of their lives liable to sudden sickness from change of climate, exposure to perils, and exhausting labour. They are generally poor and friendless, and acquire habits of gross indulgence, carelessness, and improvidence. If some provision be not made for them in sickness at the expense of the ship, they must often in foreign ports suffer the accumulated evils of disease, and poverty, and sometimes perish from the want of suitable nourishment. Their common earnings in many instances are wholly inadequate to provide for the expenses of sickness ....

11 F.Cas. 480, 483 (C.C.D.Me.1823) (No. 6,047). The Supreme Court has noted that "[i]t has been the merit of the seaman's right to maintenance and cure that it is so inclusive as to be relatively simple, and can be understood and administered without technical considerations." Farrell v. United States, 336 U.S. 511, 516, 69 S.Ct. 707, 709-10, 93 L.Ed. 850 (1949).

The traditional breadth of the remedy, as well as its nature and purpose, support Flores's contention that the measure of his unearned wages should include the tips he would have earned had he not become disabled. The Supreme Court has repeatedly declared that "the shipowner's liability for maintenance and cure was among 'the most pervasive' of all and that it was not to be defeated by restrictive distinctions nor 'narrowly confined.' " Vaughan v. Atkinson, 369 U.S. 527, 532, 82 S.Ct. 997, 1000, 8 L.Ed.2d 88 (1962) (quoting Aguilar v. Standard Oil Co., 318 U.S. 724, 730, 735, 63 S.Ct. 930, 933, 936, 87 L.Ed. 1107 (1943)). Moreover, "[w]hen there are ambiguities or doubts, they are resolved in favor of the seaman." Vaughan, 369 U.S. at 532, 82 S.Ct. at 1000. The purposes of the maintenance and cure remedy include protecting "poor and friendless" seamen, encouraging shipowners to guard the safety and health of working seamen, and inducing seamen to accept duty at sea. Calmar, 303 U.S. at 528, 58 S.Ct. at 653.

The remedy has served its purposes well over the centuries. Until recently, no luxury cruise ships, no cabin stewards, and no system of compensation through tips from passengers existed to complicate the disabled seaman's simple right to recover wages. It is altogether fitting, however, that an ancient remedy born of the reality of the seaman's position should be applied to fit the reality of our modern times. That reality is reflected in the contract between Carnival and Flores, which acknowledges that the bulk of Flores's compensation would come not from the mere pittance of $45 a month that Carnival agreed to pay, but from the hundreds of dollars in tips Flores would receive each week from Carnival's passengers, at Carnival's urging. The contract itself stated the shipowner's own...