The opinion of the court was delivered by: DUFFY
KEVIN THOMAS DUFFY, D.J.:
The sea has fascinated man for ages. Sailors have been simultaneously held in pity and in awe. Even the law for centuries has held seamen to be wards of the court and special provision has been made in admiralty for those who go down to the sea in ships. Recent statutes designed primarily for landlubbers have not excluded seamen from their sweep and, at times, seeming contradictions appear between such statutes and the law of the sea. Collective bargaining agreements covering seamen have been written using landlubber's terms and concepts and have produced similar anomalies. This is such a case.
The facts underlying the issues are not in dispute. The principal substantive issue is purely a question of law: is "overtime" normally paid to a healthy seaman to be included in calculating the benefits due to a seaman who becomes ill or is injured while in the service of a ship? Both sides have moved for judgment and have stipulated to the following facts.
On September 2, 1980, in Orange, Texas, the USNS SEALIFT ATLANTIC ("Atlantic"), a public vessel of the United States, commenced a voyage under foreign articles. The voyage terminated on August 18, 1981 in Corpus Christi, Texas. The Atlantic was chartered to the Department of the Navy, Military Sealift Command, and was operated and managed by Marine Transport Lines, Inc. ("MTL").
Mr. Lamont began employment with defendant as an unlicensed seaman aboard the Atlantic in the capacity of a Qualified Member of the Engineering Department ("QMED") at a base wage of $1,516.92 per month plus overtime and other benefits as provided for in the collective bargaining agreement between MTL and the National Maritime Union ("NMU"). Pursuant to the collective bargaining agreement, on December 16, 1980, a cost of living increase went into effect raising plaintiff's base wage to $1,557.42 per month. The vacation pay benefit was increased from $253.33 per month to $260.09 per month, and the overtime rate was increased from $13.13 per hour to $14.49 per hour.
On September 12, 1980, plaintiff signed off the ship's articles at Houston, Texas after receiving a "not fit for duty" slip from the local United States Public Health Service Hospital for a recurrence of a back condition that was the result of an injury sustained while aboard another vessel. Plaintiff remained on "not fit for duty" status until April 20, 1981. From September 13, 1980 to April 19, 1981, plaintiff was paid by MTL maintenance and cure benefits totalling $1,760.00 and unearned gross wages totalling $11,241.39. Maintenance and cure were paid at a rate of $8.00 per day and unearned wages were paid at the full base pay rate prorated for each day plaintiff was not fit for duty. During the same period, $6,261.74 was paid by MTL to the NMU Pension Fund.
On April 20, 1981, after being declared fit for duty, Lamont attempted to obtain employment aboard the Atlantic by requesting permission from MTL. The request was denied. On April 24, 1981, plaintiff registered with the NMU hiring hall in New York and obtained employment aboard the USNS EXPLORER commencing June 22, 1981. From September 13, 1980 to April 19, 1981, plaintiff was paid by MTL, maintenance, wages, and cure totalling $11,241.39. No overtime wages, however, were paid for this period. MTL also made payments totalling $6,261.74 to the NMU Pension Fund on the plaintiff's behalf for pension and vacation benefits.
Plaintiff seeks base pay, overtime, and vacation pay from April 20, 1981 through June 21, 1981, plus overtime for the period of time that he received base wages (September 13, 1980 through April 19, 1981), plus attorney's fees. Thus, Lamont seeks to receive unearned wages for the time until he was declared fit for duty and able to find new employment and overtime compensation for that same period of time.
It is well established that shipowner has a duty to provide maintenance, wages, and cure to a "seamen who becomes ill or is injured while in the service of the ship." Vella v. Ford Motor Co., 421 U.S. 1, 3, 43 L. Ed. 2d 682, 95 S. Ct. 1381 (1975); see Griffin v. Oceanic Contractors, Inc., 664 F.2d 36, 39 (5th Cir. 1981). The shipowner's duty derives from the hazardous nature of the seamen's work and is intended to encourage marine commerce. 421 U.S. at 3-4. The responsibility for these benefits springs from the relationship of ship and seaman and not from the employment contract. See Isthmian Lines, Inc. v. Haire, 334 F.2d 521, 523 (5th Cir. 1964). Furthermore, the right of the seaman to unearned wages continued either through the end of the voyage (or the end of the contractual period of employment) or until the seaman becomes fit for duty, whichever occurs first. See Griffin, 664 F.2d at 39; Vickers v. Tumey, 290 F.2d 426, 434 (5th Cir. 1961).
Citing Vaca v. Sipes, 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967) and Republic Steel Corp. v. Maddox, 379 U.S. 650, 13 L. Ed. 2d 580, 85 S. Ct. 614 (1965), defendant argues that plaintiff is barred from any recovery because he has failed to exhaust his remedies under the NMU collective bargaining agreement. I disagree.
It has been held previously that a seaman is not procedurally barred from pursuing judicially his statutory right to the prompt payment of earned wages by a failure to utilize his collective bargaining agreement grievance procedure machinery. See Arguelles v. U.S. Bulk Carriers, Inc., 408 F.2d 1065, 1071-72 (4th Cir. 1969), aff'd, 400 U.S. 351, 27 L. Ed. 2d 456, 91 S. Ct. 409 (1971). The Fourth Circuit reasoned that because Arguelles was "seeking the judicial adjudication or enforcement of his rights created by a federal statute which applies solely to seamen and the payment of their wages," he did not have to use the "additional mode of redress for such seaman and which he may pursue, at his election." 408 F.2d at 1071. Affirming the decision of the Fourth Circuit, the Supreme Court stated that it could "find no suggestion in the legislative history of the Labor Management Relations Act of 1947 that grievance procedures and arbitration were to take the place of the old shipping commissioners or to assume part or all of the roles served by the federal courts protective of the rights of seamen since 1790." 400 U.S. at ...