Padilla v. Maersk Line, Ltd.

• Decision Date: 12 March 2009
• Docket Number: No. 07 Civ. 3638 (PKL).,07 Civ. 3638 (PKL).
• Citation: 603 F.Supp.2d 616
• Parties: John PADILLA, Plaintiff, v. MAERSK LINE, LTD., Defendant.
• Court: U.S. District Court — Southern District of New York

Page 616

603 F.Supp.2d 616

John PADILLA, Plaintiff, v. MAERSK LINE, LTD., Defendant.

No. 07 Civ. 3638 (PKL).

United States District Court, S.D. New York.

March 12, 2009.

O'Bryan Baun Cohen Keubler Karamanian, Dennis M. O'Bryan, Esq., Birmingham, MI, for John Padilla.

Freehill Hogan & Mahar, LLP, John J. Walsh, Esq., Daniel J. Fitzgerald, Esq., New York, NY, for Maersk Line, Ltd.

OPINION AND ORDER

LEISURE, District Judge:

This matter is before the Court upon plaintiff John Padilla's ("Padilla") motion to compel his employer, defendant Maersk Line, Ltd. ("Maersk"), to pay overtime compensation to plaintiff as part of his entitlement to unearned wages. For the reasons stated below, this motion is GRANTED.

BACKGROUND

Padilla brings a complaint on behalf of himself and a proposed class of similarlysituated seamen against Maersk¹ under general maritime law for unearned wages. Padilla claims that he and other similarly situated seamen suffered illness and injury in the service of Maersk's vessels. (Compl. ¶ 3.) Furthermore, Padilla claims that Maersk paid him unearned wages until the end of voyage, along with maintenance and cure, but failed to pay overtime wages that Padilla otherwise would have earned in service aboard Maersk's vessel. (See id. ¶¶ 3-4.)

A. Factual History

The essential facts are undisputed. On October 30, 2006, Padilla was hired as Chief Cook aboard defendant's vessel, the Maersk Arkansas. (Def.'s Opp'n 1; O'Connell Decl. ¶ 1.)² Maersk and Padilla's union, the Seafarers International Union ("SIU"), are parties to a collective bargaining agreement known as the Standard Freightship Agreement (the "CBA").³ (O'Connell Decl. ¶ 2.) Pursuant to Article V, Section 1 ("Wages") of the CBA, a Chief Cook in the Steward Department is entitled to regular monthly wages of $3,051.76. (Def.'s Opp'n 1; O'Connell Decl. Ex. A at 50.) In addition, the CBA provides that wages "will be paid on a day for day basis on all contracted vessels ...." (O'Connell Decl. Ex. A at 27.) Accordingly, the Particulars of Engagement and Discharge (the "shipping articles"⁴) that Padilla signed upon boarding the Maersk Arkansas list Padilla's regular daily wage rate as $101.73, which Maersk calculated by dividing the monthly wage rate in the CBA by 30. (Def.'s Opp'n 1; O'Connell Decl. Ex. B.)

Padilla's sworn testimony is that his regular shift lasted from 6:30 a.m. to 6:30 p.m. (Pl.'s Dep. 29:2, Mar. 26, 2008)⁵, with a coffee break from 9:30-10:30 a.m. and a longer break from 1:00 p.m. to 4:00 p.m. (Id. 29:13-18.) This testimony is consistent with the terms of the CBA, which states that a Chief Cook is required to work eight (8) hours between 6:30 a.m. and 6:30 p.m. (O'Connell Decl. Ex. A at 50.) Pursuant to Article II, Section 21 ("Over-time Rates and Penalty Rates") of the CBA, a Chief Cook in the Steward Department earns $21.06 per hour for all work in excess of eight (8) hours Monday through Friday and any work performed on Saturdays, Sundays, or holidays. (O'Connell Decl. Ex. A at 10, 50.) Although the head of each department must authorize overtime work (id. at 14; see also Pl.'s Dep. 91:17-18), Padilla swears that, on a weekly basis prior to his injury, he performed three (3) overtime hours each weekday and eleven (11) overtime hours each Saturday, Sunday, and holiday. (Padilla Aff. ¶¶ 2-3.) This testimony is consistent with the payroll vouchers for Padilla that Maersk submitted. (See O'Connell Decl. Ex. C.) In addition, at his deposition, Padilla explained that some duties essential to maintaining a well-run ship, such as sougeeing the galley and working the stores, automatically required him to work overtime each week. (Pl.'s Dep. 88, 91:23-92:8, 93-94.) This testimony is also consistent with the CBA, which contemplates that, for members of the Steward Department, certain "non-routine" work, such as preparing and serving night lunches, sougeeing, or any work not specifically designated in the CBA will automatically be paid at the applicable overtime rate. (See O'Connell Decl. Ex. A at 52-55; see also Pl.'s Dep. 94:16-17.)

After eight days of service aboard the MV Arkansas, Padilla was discharged and repatriated at the Port of Salalah, Oman, on November 6, 2006. (See Def.'s Opp'n 2; Berger Decl. ¶ 7; O'Connell Decl. Ex. B.) At that time, Padilla signed off the ship's articles, which indicated that he was "unfit for duty." (Def.'s Opp'n 2; O'Connell Decl. Ex. B.) In addition, the shipping articles indicate that the balance of earned wages owed to Padilla⁶ at discharge totaled $1,090.00 and included six days of regular wages plus 34 hours of overtime wages.⁷ (O'Connell Decl. Exs. B & C.)

The Maersk Arkansas's voyage ended on February 26, 2007. (Berger Decl. ¶ 8; O'Connell Decl. ¶ 9.) Maersk paid Padilla unearned wages at a daily rate of $101.73, along with maintenance payments of $16 per day,⁸ from Padilla's discharge until February 26, 2007. (Def.'s Opp'n 2.) Carol Berger, General Manager, Quality Environment, Safety and Security for Maersk, attests that it is not her practice to factor overtime wages into any calculation of unearned wages, and she is unaware of any company in the industry that includes overtime wages in its unearned wage calculations. (Berger Decl. ¶¶ 6, 9.) However, Catherine O'Connell, Maersk's Jones Act Claims Manager, attests that when Maersk enters into negotiations with a seaman to settle a Jones Act claim, she will recommend that Maersk include overtime in unearned wages to induce the seaman to settle his claim. (O'Connell Decl. ¶ 6.)

Padilla testified at his deposition that he contacted Maersk to request payment of overtime wages that he would have earned but for his injury, but Maersk denied his request, stating that it did not pay over-time as unearned wages. (Pl.'s Dep. 62:2-17.) In addition, Padilla's testimony indicates that at least one other company has paid him unearned wages consisting of his daily base wage plus overtime he would have earned but for injury or illness. (Id. 63:3-15.) Maersk indicates that Padilla's replacement man aboard the Maersk Arkansas earned $15,103.52 in overtime wages during his 108 days of service on the Maersk Arkansas. (Pl.'s Reply 3 & Ex. A.)

B. Procedural History

At a December 13, 2007 pre-trial conference before this Court, the parties agreed to have the Court determine defendant's liability for overtime wages as unearned wages prior to addressing whether the action is suitable for class action status. Now before the Court is Padilla's motion for judgment on the merit s with respect to Maersk's liability for payment of overtime wages.

DISCUSSION

Padilla argues that overtime wages are payable as unearned wages. (Pl.'s Mem. 2.) Padilla relies on Lamont v. United States, 613 F.Supp. 588, 592-93 (S.D.N.Y. 1985) (Duffy, J.) for the proposition that a seaman may recover overtime as a component of unearned wages where it was the "apparent custom and practice ... of the seamen working a substantial amount of overtime" such that overtime was a "common expectation" of the seamen's remuneration and where "such an assessment [of overtime wages] can be made without speculation." (Id. 6-8 (quoting Lamont, 613 F.Supp. at 593) (internal quotation marks removed).) Similarly, in this action, Padilla asserts that an overtime assessment can be made without speculation based on Padilla's testimony regarding the average overtime he worked prior to his injury. (Id. 8-9.) In this vein, Padilla asserts that, at an average overtime of three (3) hours per weekday and eleven (11) hours each weekend day and holiday, paid at the applicable rate of $21.06, the amount of overtime wages Padilla is owed total $12,972.96. (Pl.'s Mem. 9.) In the alternative, Padilla argues the amount of overtime wages he is owed can be readily ascertained based on the overtime wages paid to Padilla's replacement man until the end of the ship's voyage, which total $15,103.52. (Id. 9; Pl.'s Reply 3 & Ex. A.)

Maersk does not dispute that Padilla is entitled to payment of unearned wages until the end of the ship's voyage. (Def.'s Mem. 4.) In fact, Maersk asserts that it paid Padilla unearned wages at the wage rate specified for a Chief Cook in the Steward Department in Article V, Section 1 ("Wages") of the CBA, and in the shipping articles, from the onset of Padilla's injury until the voyage ended. (Id. 12.) Although Maersk does not agree that overtime wages should be included in unearned wage calculations, Maersk contends that even if a seaman's right to unearned wages includes overtime wages, Padilla's entitlement to unearned wages was contractually modified. (Id. 5, 9-10.) Maersk argues that the wage rate indicated in the shipping articles is the rate at which Maersk is obligated to pay Padilla's unearned wages, and overtime pay is not factored into that applicable wage rate. (Id. 8, 11-12.) Furthermore, Maersk contends that even if Padilla is entitled to receive unearned overtime pay, summary judgment must be denied because there is a genuine issue of material fact as to the amount of overtime Padilla would have earned but for his injury. (Id. 3-4.)

Thus, the first issue before the Court is whether, as a matter of law, overtime pay is factored into unearned wage calculations for purposes of an incapacitated seaman's entitlement to maintenance and cure under general maritime law. For the reasons stated below, we conclude that it is, to the extent that overtime compensation the seaman would have earned but for his or her injury is readily ascertainable. In addition, the Court must determine whether Padilla's general maritime right to unearned wages was contractually modified so as to preclude Padilla's recovery of overtime benefits as a matter of law. As discussed below, the Court finds that Padilla's general maritime right to overtime pay as part of his unearned wages was not contractually modified, and can be reasonably ascertained based on his average overtime earned prior to injury.

I. ...