Hodges v. Keystone Shipping Co.

• Decision Date: 28 November 1983
• Docket Number: Civ. A. No. G-81-317.
• Parties: Lewis Leon HODGES, Plaintiff, v. KEYSTONE SHIPPING CO., et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

578 F. Supp. 620

Lewis Leon HODGES, Plaintiff, v. KEYSTONE SHIPPING CO., et al., Defendants.

Civ. A. No. G-81-317.

United States District Court, S.D. Texas, Galveston Division.

October 4, 1983.

Acceptance of Remittitur November 28, 1983.

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

James Warren, Fulbright & Jaworski, Houston, Tex., for defendants.

MEMORANDUM AND ORDER

HUGH GIBSON, District Judge.

BEFORE THE COURT are defendants' motion, pursuant to rule 59, Fed.R.Civ.P., to amend judgment for remittitur or for new trial, and plaintiff's opposition thereto. Plaintiff has filed notice of appeal in this matter. As defendant's motion was filed within the period prescribed by rule 59, plaintiff's appeal is untimely. Rule 4(a)(4), Fed.R.App.P. The Court is therefore proceeding with the consideration and disposition of defendant's rule 59 motion.

Plaintiff, a seaman, sued his employer under the Jones Act, 46 U.S.C. § 688, and general maritime law, seeking damages for personal injuries. This cause was tried before a jury January 12-19, 1983. The jury returned a verdict and the Court entered judgment on the verdict. The judgment ordered that plaintiff take nothing from defendant on his claims under the Jones Act and for unseaworthiness. Plaintiff was awarded $15,000 for cure; $30 per day for 806 days for maintenance (subject to a set-off of sums already paid); $75,000 compensatory damages for nonpayment of maintenance and cure; and $100,000 punitive damages for defendant's willful and capricious failure to provide maintenance and cure to plaintiff. Defendants' motion seeks to limit plaintiff's maintenance to the contract rate of $8 per day maintenance, remit his compensatory damages, and deny the punitive damages awarded by the jury.

The Court, upon consideration of defendants' motion and plaintiff's opposition thereto, grants the motion in part and denies it in part, as follows.

1. Plaintiff was injured in May 1981 when he slipped and fell on a deck that was wet and slippery with sea water and cleaning fluid. At the time the crew of the M/V GOLDEN GATE was engaged in cleaning the tanks of residue from the prior cargo. Plaintiff, a member of the crew, was hired under the National Maritime Union contract and signed on the vessel as extra personnel for the cleaning operation. At trial there was considerable testimony with regard to whether plaintiff actually fell on deck and whether there was standing soapy water on deck creating a hazard.

Plaintiff sought medical care for his injuries in August 1981. In September 1981 both written and oral demand for maintenance and cure were made to Keystone Shipping Co., plaintiff's employer. At that time defendants were furnished with plaintiff's not-fit-for-duty slips from the United States Public Service Health Hospital. Plaintiff was under medical care from August 1981 to January 1983 and has accumulated over $12,000 in medical bills.

Defendants have not paid any of plaintiff's medical bills. Defendants paid plaintiff the first maintenance payment June 22, 1982, after the filing of this suit. Subsequent to that payment, additional maintenance payments were made to plaintiff on a sporadic basis. At time of trial defendant had paid all currently due maintenance payment. Maintenance payments were made at the NMU contract rate of $8 per day. These payments were not made timely under the NMU contract, which calls for weekly payments of daily maintenance payments.

An issue was submitted to the jury as to the appropriate per diem maintenance rate. The jury returned an answer of $30 per day. The Court notes that the rate of $30 per day is a reasonable amount, substantiated by the record. However, the issue of the reasonableness of this amount is moot as plaintiff's rate of recovery of maintenance is limited by the NMU contract. Grove v. Dixie Carriers, Inc., 553 F.Supp. 777 (E.D.La.1982).

Maintenance is the daily allowance for food and lodging paid to a seaman who is injured or becomes ill while in the service of the ship. Pelotto v. L & N Towing Co., 604 F.2d 396, 400 (5th Cir. 1979). It is paid by the vessel owner while the seaman is unfit for duty (and not hospitalized) until the time which he reaches maximum cure. Id.; see Dixon v. Maritime Overseas Corp., 490 F.Supp. 1191, 1192 (S.D.N.Y.1980), aff'd, 646 F.2d 560 (2d Cir.), cert. denied, 454 U.S. 838, 102 S.Ct. 145, 70 L.Ed.2d 120 (1981). Maintenance payments should be an amount sufficient to provide a seaman with food and lodging ashore of the same character as those provided on the ship. Vaughn v. Adkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962); see Robinson v. Plimsoll Marine, Inc., 460 F.Supp. 949, 950 (E.D.La.1978), for discussion of factors including union contract rates to be considered by the Court when establishing a per diem rate in a non-contact maintenance case.

Maintenance "arises as a matter of law out of the contractual relationship between the seaman and his employer." Dixie Carriers, supra at 780. See Pelotto v. L & N Towing, supra at 400. The right to maintenance originates from an individual's seaman status and is a term of the employment which cannot be contracted away. Cortes v. Baltimore Insular Times, 287 U.S. 367, 371j, 53 S.Ct. 173, 174, 77 L.Ed. 368 (1932). The rate and mode of payment of maintenance, however, can be regulated by contract. The contract between the seaman and his employer "establishes as a matter of law, the rate of maintenance to be paid." Dixie Carriers, supra at 780.

The NMU contract rate is the rate bargained for by the union as part of an overall benefits package. NMU members are to be paid maintenance at the $8 per day rate regardless of actual expenses for food and lodging.

Accordingly, the Court finds that plaintiff, as a member of the NMU, is bound by the maintenance rate of $8 per day, as specified in the collective bargaining agreement entered into between employer and the union.

Breach of the terms of the union contract does not authorize a higher rate of maintenance than that bargained for in the contract. The contract rate is the rate which the court will compel the shipowner to pay when the shipowner withholds money owed for maintenance. Grove v. Dixie Carriers, supra; Gajewski v. United States, 540 F.Supp. 381 (S.D.N.Y.1982), Dixon v. Maritime Overseas, 490 F.Supp. at 1193. See also, Incandela v. American Dredging Co., 659 F.2d 11 (2d Cir.1981) (plaintiff awarded greater amount since not constrained by union contract). The seaman's remedy for tortious non-payment of maintenance and cure by a vessel owner is outlined by Vaughn v. Atkinson, supra, and as discussed below.

The jury award of $30 per day maintenance is beyond the rate which plaintiff is entitled to at law and is therefore excessive. The Court is compelled to reduce the maintenance recovery to the contract rate of $8 per day.

2. Defendant has also objected to the amount of compensatory damages awarded for non-payment of maintenance and cure. The jury found that "the defendants willfully and capriciously refused to provide maintenance and cure to plaintiff," and returned a verdict of $75,000 in compensatory damages for such nonpayment.

A full panoply of tort remedies are available to a seaman for his employer's unreasonable failure to pay or willful and capricious withholding of maintenance and cure. See Billiot v. Toups Marine Transport, 465 F.Supp. 1265, 1268 (E.D.La.1979). When an employer unreasonably fails to provide maintenance and cure, and such failure aggravates the seaman's condition, the employer is liable for the increased medical expenses, increased maintenance, and any other tort damages which result. Gaspard v. Taylor Diving & Salvage Co., 649 F.2d 372, 375 (5th Cir.1981); Cortes v. Baltimore Insurance Line, 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368 (1932); see Vaughn v. Atkinson, supra; Picon v. American Offshore Fleet, Inc., 576 F.2d 585 (5th Cir.1978); Parker v. Texaco, Inc., 549 F.Supp. 71 (E.D.La.1982).

On July 22, 1982, approximately ten months after the accident, defendants made the first maintenance payment. The second payment was made on September 16, 1982, and the third was made on November 30, 1982. At the time of trial defendant had paid plaintiff all currently owed maintenance at the rate of $8 per day, but had not paid any of plaintiff's medical bills.

Plaintiff testified that from the date of his injury to trial he was unable to work and to provide for himself. Plaintiff was forced to move to cheaper housing and was, on frequent occasions, unable to pay the lesser rent. At times plaintiff could not afford to eat properly and on occasion could not afford to pay for pain medication. He did not always have transportation to get to and from the doctor. As a result of these financial pressures, plaintiff suffered from emotional stress, anxiety and depression. Dr. Minyard testified that the failure to provide plaintiff with necessary funds to survive and provide his medication would be likely to cause headaches, emotional stress and muscular spasms, all of which would impede and lengthen his recovery.

Upon review of the record, the Court finds that the measure of compensatory damages found by the jury is beyond the maximum award which can reasonably be supported by the evidence presented at trial. In Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969), the Fifth Circuit set out the procedure for the evaluation of motions for judgment notwithstanding the verdict:

the Court should consider all of the evidence—not just the evidence which supports the non-mover's case—but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the

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