Gardiner v. Sea-Land Service, Inc.

• Decision Date: 08 April 1986
• Docket Number: Nos. 84-2354,SEA-LAND,84-2547,s. 84-2354
• Citation: 786 F.2d 943
• Parties: 122 L.R.R.M. (BNA) 2001, 1986 A.M.C. 1521, 54 USLW 2544, 104 Lab.Cas. P 11,921 Cory GARDINER, William E. Bishop, et al., Plaintiffs-Appellees, v.SERVICE, INC., United States Lines, Inc., etc., et al., Defendants- Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 943

786 F.2d 943

122 L.R.R.M. (BNA) 2001, 1986 A.M.C. 1521,

54 USLW 2544,

104 Lab.Cas. P 11,921

Cory GARDINER, William E. Bishop, et al., Plaintiffs-Appellees, v. SEA-LAND SERVICE, INC., United States Lines, Inc., etc., et

al., Defendants- Appellants.

Nos. 84-2354, 84-2547.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 17, 1985.

Decided April 8, 1986.

A. Curtis Sawyer, Jr., Jarvis, Miller, Brodsby & Baskin, Inc., San Francisco, Cal., for plaintiffs-appellees.

Sam D. Delich, Sandra McCandless, Graham & James, San Francisco, Cal., Mark Chavez, Pillsbury, Madison & Sutro, San Francisco, Cal. Howard L. Ganz, Porskauer, Rose, Goetz & Mendelsohn, New York City, for defendants-appellants.

Appeal from the United States District Court for the Northern District of California.

Before TANG and FLETCHER, Circuit Judges, and HILL, ^* District judge.

TANG, Circuit Judge:

Pursuant to 28 U.S.C. Sec. 1292(b), Defendants-Shipowners appeal the district court's denial of their motion to dismiss or for summary judgment. The issue presented is whether the provision in a seamen's collective bargaining agreement calling for a rate of maintenance will be held binding and will be enforced even if, when viewed in isolation, the rate fixed in the agreement is inadequate. The district court held that union members are not bound by such a rate of maintenance and it could not be enforced.

I. BACKGROUND

In August, 1983, seven seamen who belong to maritime unions filed an action on behalf of themselves and a proposed class of similarly-situated seamen (Seamen) against eight maritime employers and a proposed defendant class represented by those employers (Shipowners). The Seamen assert a right under maritime law to maintenance payments from the Shipowners greater than the daily rate of $8.00 called for in the collective bargaining agreements between the Shipowners and the Seamen's unions.

The parties stipulated that the Shipowners would move for dismissal and/or summary judgment on the ground that the Plaintiffs were not entitled to the relief sought and that Defendants were entitled to judgment on the merits. Defendants argued that the collectively-bargained maintenance rates were enforceable as a matter of law. The parties also agreed that if the motion were denied, they would join in a motion for certification for interlocutory appeal under 28 U.S.C. Sec. 1292(b), and that all further proceedings would be stayed pending the appeal.

On August 1, 1984, the district court denied the Shipowners' motion based upon its reasoning in a prior published order, Rutherford v. Sea-Land Service, Inc., 575 F.Supp. 1365 (N.D.Cal.1983). In Rutherford, the court surveyed the legal principles underlying the maritime right to maintenance. Based on the principle that "no private agreement may abrogate the right," id. at 1371 (citing, inter alia, Cortes v. Baltimore Insular Line, 287 U.S. 367, 371, 53 S.Ct. 173, 174, 77 L.Ed. 368 (1932)), the court held that:

[a] seaman who becomes ill or injured while in the service of his ship is not bound by the maintenance figure set forth in a collective bargaining agreement in instances in which the payment is not adequate to provide him with lodging and three meals per day of the kind and quality he would have received aboard the vessel.

Id. at 1370. Without review of the policies underlying federal labor law, the court concluded that "the public policy in support of the ancient right of maintenance must be found to outweigh the national labor policy" of enforcing collective bargaining agreements. Id. at 1373. Additionally, the court took judicial notice that a daily maintenance rate of $8.00 is inadequate to obtain food and lodging in the San Francisco Bay area of a quality comparable to that aboard ship. Id. at 1370.

In its order denying Defendants' motion, the district court certified the issue just discussed for interlocutory appeal under 28 U.S.C. Sec. 1292(b). This court granted the petition for permission to appeal by order dated October 9, 1984.

II. MARITIME RIGHT TO MAINTENANCE

The Seaman's right to maintenance dates back to the Middle Ages. Gilmore and Black, The Law of Admiralty 281 (2d ed. 1975). "Maintenance" is the duty of a shipowner to provide food and lodging to a seaman who falls ill or becomes injured while in the service of the ship. Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 528, 58 S.Ct. 651, 653, 82 L.Ed. 993 (1938). The right to maintenance is tied to the right to cure, i.e., necessary medical services, and both extend to the point of "maximum recovery." Vaughn v. Atkinson, 369 U.S. 527, 531, 82 S.Ct. 997, 999, 8 L.Ed.2d 88 (1962). In addition, a seaman is entitled to recover unearned wages. The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760 (1903); Norris, The Law of Seamen Sec. 26.7 at 15-16 (4th ed. 1985). In sum, the elements of the common law maintenance and cure action included a living allowance during the recovery period (maintenance), reimbursement for medical expenses (cure), and unearned wages for the period from the onset of injury or illness until the end of the voyage. Gilmore and Black, 281, 305, 309.

Traditionally, maintenance has been said to serve three purposes: (1) to protect the poor and improvident seaman while ill in foreign ports, (2) to encourage shipowners to protect the seaman's safety and health while in service, and (3) to induce employment in the merchant marine. See Vella Ford Motor Co., 421 U.S. 1, 3-4, 95 S.Ct. 1381, 1382-83, 43 L.Ed.2d 682 (1975), quoting Aguilar v. Standard Oil Co., 318 U.S. 724, 727, 63 S.Ct. 930, 932, 87 L.Ed. 1107 (1943); Gypsum Carriers v. Handelsman, 307 F.2d 525, 536 (9th Cir.1962).

The duty to provide maintenance is imposed by law. Cortes v. Baltimore Insular Line, 287 U.S. 367, 371, 53 S.Ct. 173, 174, 77 L.Ed. 368 (1932) (per Cardozo, J.). The obligation is said to be an incident of the status of the seaman, and "contractual" only in that the obligation has its source in the employment relationship. Id. Although courts have sometimes characterized the duty as an "implied contract provision," see, e.g., Aguilar v. Standard Oil Co., 318 U.S. 724, 730, 63 S.Ct. 930, 934, 87 L.Ed. 1107 (1943), they have consistently held that the right to maintenance cannot be abrogated by contract, Cortes, 287 U.S. at 371, 53 S.Ct. at 174.

Case law defines the extent of the right to maintenance, and how it is measured. The seaman is entitled to food and lodging of the kind and quality of that which he would receive aboard ship. Calmar S.S. Corp., 303 U.S. at 528, 58 S.Ct. at 653. Traditionally, the right was restricted to actual out-of-pocket expenses. Gilmore and Black at 305; Johnson v. United States, 333 U.S. 46, 68 S.Ct. 391, 92 L.Ed. 468 (1948). However, more recent cases have awarded a flat per diem rate without further inquiry. Gilmore and Black at 307. A rate of $8.00 per day was judicially established in the late 1940's. Id. Apparently that rate has been continued down to the present time in many places, both as the rate to be paid to individual non-union seamen and the rate frequently established in collective bargaining agreements. Very recently, the $8.00 rate has been successfully challenged in cases involving individual non-union seamen. See, e.g., Incandela v. American Dredging Co., 659 F.2d 11, 14 (2d Cir.1981).

When the $8.00 rate established in a collective bargaining agreement has been challenged by one or more union members, the district courts have not reached uniform results. For example, the contract provision was enforced in Grove v. Dixie Carriers, Inc., 553 F.Supp. 777 (E.D.La.1982) and Hodges v. Keystone Shipping Co., 578 F.Supp. 620 (S.D.Tex.1983) and denied enforcement in Rutherford, 575 F.Supp. 1365. We are apparently the first Court of Appeals to decide whether the $8.00 rate as established in a collective bargaining agreement should or should not be enforced.

III. DISCUSSION

The Shipowners advance two primary reasons to justify enforcement of the maintenance rate contained in the collective bargaining agreement. First, they argue that federal labor legislation has preempted maritime law. Second, they argue that absent preemption, the give and take process of collective bargaining and the range of other benefits accruing to seamen as a consequence of collective bargaining justify enforcement of the contracted maintenance rate.

A. Preemption

In City of Milwaukee v. Illinois, 451 U.S. 304, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981), the Supreme Court articulated a test for determining the preemptive effect of a federal statute over federal common law. ¹ Referring to Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978) (Court refused to provide damages for "loss of society" under general maritime law when not provided for in Death on High Seas Act), the Court stated that the question was whether the legislative scheme "spoke directly to a question," not whether Congress had affirmatively proscribed the use of federal common law. City of Milwaukee, 451 U.S. at 315, 101 S.Ct. at 1791. Maritime law will be preempted by statute if applying that common law would entail "rewriting rules that Congress has affirmatively and specifically enacted." Mobil Oil, 436 U.S. at 625, 98 S.Ct. at 2015. Thus where Congress has spoken, courts "need not pause to evaluate ... opposing policy arguments ... [for] Congress has struck the balance for [the courts]." Id. at 623. In evaluating the displacement issue, courts must assess the scope of the legislation and whether the legislative scheme addresses the problem formerly governed by federal common law. City of Milwaukee, 451 U.S. at 315 n. 8, 101 S.Ct. at 1792 n. 8.

The Shipowners claim that the labor statutes "speak directly" to and preempt the maritime right to maintenance in two ways. First, the Shipowners contend that non-enforcement of the maintenance provision subverts the statutory mandate that unions...