Incandela v. American Dredging Co., 1379

• Decision Date: 04 September 1981
• Docket Number: D,No. 1379,1379
• Citation: 659 F.2d 11
• Parties: Joseph INCANDELA, Plaintiff-Appellant, v. AMERICAN DREDGING COMPANY, Defendant-Appellee. ocket 80-9136.
• Court: U.S. Court of Appeals — Second Circuit

Page 11

659 F.2d 11

Joseph INCANDELA, Plaintiff-Appellant, v. AMERICAN DREDGING COMPANY, Defendant-Appellee.

No. 1379, Docket 80-9136.

United States Court of Appeals Second Circuit.

Argued May 27, 1981.

Decided Sept. 4, 1981.

Paul C. Matthews, New York City, for plaintiff-appellant.

Michael D. Martocci, New York City (Frank J. Pallone, New York City, of counsel), for defendant-appellee.

Before FEINBERG, Chief Judge, and LUMBARD and MANSFIELD, Circuit Judges.

MANSFIELD, Circuit Judge:

Joseph Incandela appeals from a judgment n.o.v. entered on November 24, 1980, by Judge Constance Baker Motley of the United States District Court for the Southern District of New York granting in part defendant's motion to reduce a jury verdict awarding $24,000 for maintenance due plaintiff as a seaman following his sustaining injuries aboard defendant's dredge, for suffering, and for attorney's fees. The district court reduced the award to $16,800 after eliminating amounts for suffering and counsel fees.

The principal issues relate to the amount to be awarded a seaman for maintenance and whether he is entitled to counsel fees incurred to obtain the award. The district court instructed the jury that any award for maintenance should be calculated on the basis of the $13.50 per day rate actually paid by defendant to Incandela in lieu of maintenance during the period immediately following plaintiff's accident, rather than allowing it to rely on evidence put in by plaintiff that his actual expenditures for maintenance had been approximately $26.80 per day. We hold that an award calculated at the higher rate should be entered on remand. We also vacate the district court's decision to eliminate the jury's counsel fees award, and remand for further proceedings to determine the amount of counsel fees which should be awarded. In all other respects the judgment is affirmed.

Incandela brought this action against American Dredging Co. for lower back injuries sustained on August 29, 1976, when he was employed as a seaman aboard one of defendant's dredges. Incandela had been assigned the task of cleaning and regreasing a number of large bolts which his coworkers were tossing up to him from the pump room below. It was Incandela's testimony that he hurt his back when he bent down to pick up one of the bolts from the floor and slipped on the grease which the bolts had deposited when they landed.

At the close of the evidence, the district court conferred at length with counsel for both sides on the question of maintenance. Counsel informed her that there was a dispute as to the daily rate at which maintenance, if owed, was to be calculated. Plaintiff argued that the rate should be at least $25.00 per day, which in his opinion was supported by plaintiff's testimony at trial that his living expenses after suffering the injury amounted to between $175 and $200 per week. Defendant argued that plaintiff's testimony as to his own living expenses was insufficient to support an instruction on the maintenance rate question, and that one of two alternate rates should be used instead: (a) $8.00 per day, which was the union rate at the time of plaintiff's accident, or (b) $13.50 per day, which was the amount that defendant had actually paid to plaintiff in lieu of maintenance in the period immediately following the accident. The district court ruled that plaintiff's testimony as to what his actual living expenses had been did not meet his burden of proving what the maintenance rate should be. She explained her ruling to plaintiff's counsel:

You had the burden of proving what the employer was required to pay for maintenance based on what the employer had previously paid, or some such thing, or what is generally paid in the industry for maintenance, not to have this man tell us he spent $200 a week as a single man himself to live in New York City.

She then ruled that, since plaintiff was not working under a union contract and was therefore not covered by the $8.00 union rate, she would charge the jury that any maintenance award should be calculated on the basis of $13.50 per day, the rate initially paid by defendant.

The jury returned a verdict awarding plaintiff $24,000 on the maintenance and cure count. ¹ That award consisted of the following elements: $2,000 for cure, $14,800 for maintenance (based on the $13.50 rate), $1,500 for suffering, anguish and aggravation resulting from defendant's failure to pay maintenance when asked, and $5,700 in counsel fees. The district court then granted in part defendant's motion for judgment notwithstanding the verdict, setting aside the jury award for counsel fees and for suffering. Judge Motley refused to consider plaintiff's cross-motion for a new trial, however, because plaintiff refused to pay half of the cost of preparing a copy of the trial transcript for the use of the court.

The first question is whether the district court erred in instructing the jury that any maintenance award would be limited to $13.50 per day, rather than allowing it to rely on plaintiff's testimony that his actual expenses had been in the neighborhood of $187.50 per week or $26.80 per day. For centuries courts have imposed on shipowners the duty of providing maintenance and cure for their injured seamen. As the Supreme Court has recently written:

The shipowner's ancient duty to provide maintenance and cure for the seaman who becomes ill or is injured while in the service of the ship derives from the "unique hazards (which) attend the work of seamen," and fosters the "combined object of encouraging marine commerce and assuring the well-being of seamen." ... (T)he breadth and inclusiveness of the shipowner's duty assure its easy and ready administration for "(i)t has few exceptions or conditions to stir contentions, cause delays and, invite litigations." Vella v. Ford Motor Co., 421 U.S. 1, 3-4, 95 S.Ct. 1381, 1382-83, 43 L.Ed.2d 682 (1975), quoting from Aguilar v. Standard Oil Co., 318 U.S. 724, 727, 63 S.Ct. 930, 932, 87 L.Ed. 1107 (1943); Farrell v. United States, 336 U.S. 511, 516, 69 S.Ct. 707, 709, 93 L.Ed. 850 (1949).

To fulfill its purpose, the maintenance rate should be set at a level which will "provide a seaman with food and lodging when he becomes sick or injured in the ship's service." Vaughan v. Atkinson, 369 U.S. 527, 531, 82 S.Ct. 997, 999, 8 L.Ed.2d 88 (1962). Nevertheless, since at least the early 1950's many courts have fallen into the habit of awarding maintenance at the fixed rate of $8.00 per day, regardless of the gradual erosion of the purchasing power which the amount represents. 1B Benedict on Admiralty § 51 (1980); G. Gilmore & C. Black, The Law of Admiralty 307 (2d ed. 1975). On the other hand, some courts have awarded higher maintenance rates after seamen have introduced evidence of higher living costs. See, e. g., Caulfield v. AC & D Marine, Inc., 633 F.2d 1129, 1132-33 (5th Cir. 1981); Gauthier v. Crosby Marine Service, Inc., 499 F.Supp. 295, 299 (E.D.La.1980); Robinson v. Plimsoll Marine, Inc., 460 F.Supp. 949, 950 (E.D.La.1978). Cf. Tate v. American Tugs, Inc., 634 F.2d 869, 870-71 (5th Cir. 1981) (maintenance rate should vary to reflect the quality of food and lodging on ship and the cost of their equivalents on shore). We adopt this latter view rather than adhere to the rigid application of a frozen dollar figure which stands as a symbolic but unfulfilled promise to seamen that their maintenance needs...