Griffin v. Oceanic Contractors, Inc., 80-1599

Citation664 F.2d 36
Decision Date17 June 1981
Docket NumberNo. 80-1599,80-1599
PartiesDanny L. GRIFFIN, Plaintiff-Appellant, v. OCEANIC CONTRACTORS, INC., Defendant-Appellee. Summary Calendar. . Unit A
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Friedman & Chaffin, Robert A. Chaffin, Houston, Tex., for plaintiff-appellant.

Fulbright & Jaworski, Theodore Goller, Houston, Tex., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before BROWN, POLITZ and TATE, Circuit Judges.

TATE, Circuit Judge.

The plaintiff, Danny Griffin, was injured on a vessel while in the employ of the defendant, Oceanic Contractors, Inc. He brought suit against his employer seeking damages under the Jones Act, 46 U.S.C. § 688, the general maritime law of the United States, and for penalty wages under 46 U.S.C. § 596. 1

After a judge trial on the merits, the trial court found that Griffin's injury was caused by an unseaworthy condition of the vessel, and accordingly awarded him an amount totalling $23,670.40. On appeal, Griffin contends that this award was insufficient due to the trial court's error (1) for failure to award him lost wages for his entire contractual term, (2) for failure to include any bonus and/or overtime pay in the computation of earned and/or unearned wages, and (3) for failure to properly apply the penalty wage statute, 46 U.S.C. § 596.

Facts

Plaintiff Griffin signed an employment contract on February 18, 1976, with the defendant, Oceanic Contractors, Inc. (hereinafter "Oceanic"), agreeing to work as a senior pipeline welder on defendant's vessels operating in the North Sea. The contract stipulated that his employment would commence "on the date of (his) departure and will continue ... until December 15, 1976 or until Oceanic's 1976 pipeline committal in North Sea is fulfilled whichever shall occur first ...."

Griffin shortly thereafter flew to Antwerp, Belgium, and reported to the vessel, Lay Barge 27, which was tied up in the harbor for winter repairs. On April 1, 1976, in getting the barge ready to put to sea, Griffin developed traumatic thrombosed hemorrhoids when he attempted to move an empty oxygen bottle by himself.

On April 3, 1976, emergency surgery was performed on Griffin at a hospital in Antwerp, where he remained until April 5, 1976. On April 6, 1976, he flew back to his home in Houston, Texas, and was there examined by Dr. Ernest Max, a colon and rectal surgeon, on April 6, 14 and 28, 1976. Griffin reached maximum medical recovery and was found fit to return to duty on May 3, 1976.

Griffin brought suit against Oceanic under the Jones Act, general maritime law, and 46 U.S.C. § 596, for its failure to pay maintenance and cure, repatriation expenses, and earned and unearned wages. The trial court found that the vessel was unseaworthy due to an insufficient number of the crew members, and that Griffin's injury resulted from this unseaworthy condition (because he had no aid in moving the oxygen bottle.)

The trial court awarded the damages totalling $23,670.40 to Griffin, as follows: (1) $5,913.68, as recovery for maintenance and cure, earned and unearned wages, repatriation expense and the value of lost personal effects; (2) $2,506.89, as prejudgment interest on the recovery for maintenance and cure, earned and unearned wages, repatriation expense, and the value of lost personal effects; (3) $3,368.23, as attorney's fees for the recovery for maintenance and cure, earned and unearned wages, repatriation expense and prejudgment interest; (4) $5,000.00, as recovery for pain and suffering and penalty wages; and (5) $6,881.60 as penalty wages.

Griffin's appeal questions only the refusal of the trial court to allow him full wages (straight time, overtime, and bonuses) for the entire period of his contractual employment (the trial court limited the wage-recovery to the period of disability), and its failure to award him the full statutory penalty, 46 U.S.C. § 596 (quoted at note 1), of double-daily wages for each day until the time of actual payment in 1980 of the unpaid wages earned in 1976 (the trial court awarded him double the daily rate of straight time wages for the 34-day period of unemployment during 1976, or a total of $6,881.60).

I

The trial court allowed Griffin to recover unearned wages from the day after his injury, April 2, to the date he was found fit for duty by Dr. Max, May 3, 1976. On appeal, Griffin urges that the trial court committed an error of law in not awarding him unearned wages until the ending date of his contractual period of employment, which in this instance was September 15, 1976, the date on which Oceanic's pipelaying season was completed in the North Sea.

Griffin advances three separate theories upon which he should recover unearned wages from April 1 to September 15: (1) under the general maritime law (as part of his claim for maintenance, wages, and cure); (2) as general damages under the Jones Act; and (3) under a breach of contract theory.

We find all three to be inapplicable to the facts before us.

The right of an injured seaman to recover unearned maintenance-wages-cure (M-W-C) wages under the general maritime law of the United States until either (1) the end of the voyage or (2) the end of the contractual period of employment is well established. See, e. g., The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760 (1903); Isthmian Lines v. Haire, 334 F.2d 521 (5th Cir. 1964); Vickers v. Tumey, 290 F.2d 426, 434 (5th Cir. 1961); Rofer v. Head & Head, Inc., 226 F.2d 927, 929 (5th Cir. 1955); 2 M. Norris, The Law of Seamen 17 § 544, p. 17 (3d ed. 1970). However, if the seaman recovers from the injury and is fit to return to duty prior to the termination of the voyage or his contractual period, then he is not entitled to continue to receive M-W-C wages past that point. 2 See Vickers v. Tumey, supra, 290 F.2d at 434-435; Martinez v. Star Fish and Oyster Co., 386 F.Supp. 560, 564 (S.D.Ala.1974); Warren v. United States, 75 F.Supp. 836, 838 (D.C.Mass.1948).

As Griffin contends, lost wages may also form an element of damages in a suit brought under the Jones Act. See Vickers v. Tumey, supra, 290 F.2d at 434. Nevertheless, even under the Jones Act (under which a plaintiff may recover for loss of future earnings after the termination of voyage or contract), Griffin is not allowed to recover for lost wages past May 3, 1976, because he was found to have fully recovered as of that date and was found to have incurred no diminution of future earnings as a result of his injury. Any decrease in earnings after May 3 was due to Griffin's failure to return to work for Oceanic, not from his injury, since Oceanic (see below) held his position open for him.

Finally, Griffin contends he is due unearned wages through September 15, 1976, because the defendant breached his employment contract by wrongfully discharging the defendant on April 1, 1976. The trial court did indeed find that Griffin was discharged effective April 1, but it failed to state that such a discharge constituted a breach of contract. Although notice was sent to Griffin that his discharge was effective April 1, such notification was not transmitted until June 2 (after unsuccessful efforts to contact Griffin and discover when he would return to work) (Def. Ex. 11, 12, Tr. 364-67), and the evidence in the record establishes that Griffin's job was held open until at least June 1, 1976 (Def. Ex. 12), that he made no effort to return to work for Oceanic (indeed, he obtained new employment on May 5), and that Oceanic made numerous attempts to contact Griffin for the purpose of re-employment. 3

II

The plaintiff also contends that the trial court erred in not awarding him (1) bonus pay for the period prior to his injury and (2) bonus and overtime pay for the period between April 2 and May 3.

We disagree. Griffin's contract provided for (1) an annual bonus and (2) a contract-completion bonus. The trial court found that "the terms of the contract provide that such bonuses are not payable unless the employment term is completed by the employee." Since the employment term was not completed, we do not find that the trial court was clearly erroneous in not including a proportionate amount of these bonuses in computing Griffin's unearned wages, either on a contract theory or as Jones Act wage damages.

Furthermore, the district court did not include any overtime pay for the period between April 2 and May 3. Again, we cannot say that the district court erred. The actual amount of overtime was uncertain, and hence any inclusion of such would have been purely speculative. See Martinez v. Star Fish and Oyster Co., 386 F.Supp. at 564; Keefe v. American Pacific Steamship Co., 110 F.Supp. 853, 856 (S.D.Cal.1953).

III

The district court found that Oceanic's failure to promptly pay $412.50 withheld from wages already earned by Griffin constituted a withholding of wages without sufficient cause. Under 46 U.S.C. § 596, Griffin was entitled to recover a penalty for this wrongful withholding. The statutory penalty requires payment of a penalty of (twice the daily wage rate for each)...

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