Leep v. American Ship Management, LLC

• Decision Date: 14 February 2005
• Docket Number: No. B173066.,B173066.
• Citation: 126 Cal.App.4th 1028,24 Cal.Rptr.3d 463
• Court: California Court of Appeals Court of Appeals
• Parties: Ernest LEEP, Plaintiff and Appellant, v. AMERICAN SHIP MANAGEMENT, LLC, Defendant and Respondent.

24 Cal.Rptr.3d 463

126 Cal.App.4th 1028

Ernest LEEP, Plaintiff and Appellant, v. AMERICAN SHIP MANAGEMENT, LLC, Defendant and Respondent.

No. B173066.

Court of Appeal, Second District, Division 5.

February 14, 2005.

Preston Easley, San Pedro, for Plaintiff and Appellant.

Kaye, Rose & Maltzman, LLP; Elsa M. Ward, Los Angeles, Aksana Moshaiv for Defendant and Respondent.

MOSK, J.

Plaintiff and appellant Ernest Leep (appellant) appeals from a summary judgment in favor of defendant and respondent American Ship Management, LLC (respondent) in appellant's action for unearned wages. Appellant claims that he was injured aboard respondent's vessel, the M/V President Truman (Truman), during a 90-day employment engagement and that respondent owes him unearned wages for the entire 90-day period. Appellant relies on a 1994 memorandum of understanding between respondent and appellant's union, stating that "Second Assistant Engineer and Third Assistant Engineer rotary assignments shall be for ninety (90) days." Appellant was assigned to respondent's vessel as a third assistant engineer pursuant to a union dispatch slip stating that his assignment was for a "90 day rotary." Respondent asserts that the collective bargaining agreement provides for "maintenance and cure as customary" and that customarily an injured seaman is only entitled to wages to the end of a voyage. Respondent argues that there was no voyage due to a labor dispute, and that appellant was properly paid the correct amount through the date he left the vessel because of an injury.

We hold that the provision of the 1994 memorandum of understanding concerning 90-day rotary assignments raises a triable issue of material fact as to whether appellant's employment on respondent's vessel was for a 90-day period, and that respondent's evidence of what is customary is insufficient to support the summary judgment. We accordingly reverse the judgment.

BACKGROUND

Appellant is an engineer and a member of the Marine Engineers' Beneficial Association (MEBA). Respondent is the owner of the Truman, the vessel on which appellant was injured while working as a third assistant engineer. Respondent executed a MEBA collective bargaining agreement dated 1986-1990 that governs the employment of MEBA members aboard dry cargo vessels. The evidence suggests that other shipping companies are parties to the collective bargaining agreement. Respondent and MEBA executed various memoranda of understanding, including a 1994 memorandum of understanding. There is no indication that these memoranda of understanding were applicable to, or to be executed by, other shipping companies. Paragraph 11 of the 1994 memorandum of understanding states: "Second Assistant Engineer and Third Assistant Engineer rotary assignments shall be for ninety (90) days. It is understood that the length of rotary assignments on foreign to foreign shuttle vessels shall remain unchanged."

MEBA issued a relief clearance card to appellant, stating that he was assigned to the Truman for an "Approx. No. of Relief Days" for a "90 day rotary." Appellant commenced working aboard the Truman on October 7 2002. At that time, the Truman was berthed at Terminal Island for an indefinite period of time because of a labor dispute between the Pacific Maritime Association (PMA) and the International Longshoremen's and Warehousemen's Union (ILWU). The Truman had been engaging in 35-day foreign voyages from Oakland, California to Japan, China, Hong Kong, and Taiwan and returning to San Pedro, California and had been scheduled to depart from San Pedro to Oakland on October 9, 2002. Because of the PMA/ILWU dispute, however, the vessel was unable to depart, and the crew members were employed coastwise aboard the Truman.

On October 14, 2002, appellant was injured while operating a portable crane aboard the Truman. He left the vessel that day to receive medical treatment and was unable to return to work until January 6, 2003. Appellant was paid through October 14, 2002.

The Truman departed from San Pedro on October 19, 2002 and arrived in Oakland on October 20, 2002. Respondent paid the coastwise crew through October 20, 2002. On October 26, 2002, the vessel departed from Oakland for its foreign voyage to the Orient. Seamen aboard the Truman executed foreign voyage articles before departing from Oakland. Appellant was not aboard the Truman when the ship departed on October 26, 2002 and did not execute foreign voyage articles.

On November 13, 2002, appellant filed his complaint in the instant action, alleging causes of action for negligence, unseaworthiness, and maintenance and cure, seeking, among other damages, the unearned wages that are the subject of this appeal and his attorney fees. Appellant waived his right to a jury trial.¹

Appellant moved for partial summary judgment on his maintenance and cure cause of action, arguing that his assignment to the Truman had been for a 90-day period and that he was entitled to unearned wages for the entire 90 days. The trial court denied the motion on the ground that an issue of material fact existed as to whether appellant had been guaranteed employment aboard the Truman for 90 days.

Respondent subsequently brought its own motion for summary adjudication of appellant's maintenance and cure claim, arguing that respondent had paid all wages owed to appellant under federal maritime law and the collective bargaining agreement with appellant's union; or alternatively, that appellant could not establish a definite period of employment for 90 days. Respondent contended that section 7 of the collective bargaining agreement with MEBA provided for the payment of "maintenance and cure as customary," and that it was respondent's long-standing custom and practice to pay a crewman employed coastwise through the date of his departure from the vessel and to pay a crewman employed for a foreign voyage through the end of that voyage. Respondent filed in support of its motion the collective bargaining agreement; the subsequent memoranda of understanding; the declaration of Ron McCauley, a crewing manager employed by respondent or by respondent's predecessor in interest for 46 years; and a separate statement of undisputed material facts. Mr. McCauley stated in his declaration in part: "ASM [respondent] has never paid unearned wages to any seaman beyond the date of a foreign voyage. In situations where seamen are employed coastwise aboard ASM vessels and they become injured, the practice is to pay wages through the day in which the seaman leaves the vessel." Paragraph 3 of respondent's separate statement states: [¶] "Plaintiff did not sign ship's articles, and October 14, 2003, he was employed coastwise at Terminal Island, solely due to the PMA-ILWU Labor dispute and related lockdown of California ports. ASM did not agree plaintiff would be employed coastwise for any definite period of time, as the time period in which the strike would remain in effect necessarily remained uncertain."

Appellant argued in opposition to respondent's motion that his 90-day period of employment was established by paragraph 11 of the 1994 memorandum of understanding that provided, "Third Assistant Engineer rotary assignments shall be for ninety (90) days" and by a relief clearance card issued by MEBA assigning appellant to the Truman for a "90 day rotary." Appellant's opposition was supported in large part by his own declaration, in which he asserted that his 90-day assignment to the Truman had been pursuant to MEBA dispatch procedures and the terms of the 1994 memorandum of understanding between MEBA and respondent; that 90-day relief assignments typically cover more than one actual voyage; and that the captain of the Truman would not have permitted appellant aboard had the captain disagreed with the 90-day assignment specified on his relief clearance card.

Respondent filed evidentiary objections to appellant's declaration on the grounds that appellant lacked personal knowledge and any foundational basis to attest to MEBA's dispatch procedures, the meaning of the collective bargaining agreement between respondent and MEBA, the typical length of MEBA assignments aboard respondent's vessels, and the intent of the Truman's captain in permitting appellant aboard. Appellant did not respond to the evidentiary objections. The trial court sustained the objections and thereby excluded from evidence portions of the declaration to which respondent had objected. The court did not exclude from evidence the 1994 memorandum of understanding or the union dispatch slip issued by MEBA assigning appellant to the Truman for a "90 day rotary." The trial court granted respondent's motion for summary adjudication and dismissed appellant's third cause of action for maintenance and cure. Appellant then dismissed with prejudice his remaining causes of action, and the trial court granted summary judgment in respondent's favor. Appellant appeals from the summary judgment but has not challenged the trial court's evidentiary rulings.

We requested supplemental briefing from the parties as to whether appellant's failure to dispute paragraph 3 of respondent's separate statement of undisputed material facts precluded appellant from contending there was an agreement that he was employed aboard respondent's vessel for any definite period of time, and, if not, whether paragraph 11 of the 1994 memorandum of understanding raised a triable issue of fact. In his supplemental brief, appellant stated that his failure to dispute respondent's statement that there had been no agreement to employ appellant coastwise for any definite period of time did not preclude him from arguing that he had been assigned to respondent's vessel for a 90-day period of employment; that the 90-day period encompassed both coastwise and overseas employment; and that his 90-day assignment did not distinguish between coastwise and overseas periods of employment.

Respondent contended that a...