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VINUELA v. S.S. "BRITANIS"

October 30, 1986

MACARIO VINUELA, Plaintiff,
v.
S.S. "BRITANIS", her engines, boilers, tackle, appurtenances, etc., the S.S. "DOLPHIN", her engines, boilers, tackle, appurtenances, etc., and CHANDRIS INCORPORATED, AJAX NAVIGATION CORP., BRITANNIS SHIP SERVICES, LIMITED, and APOLLO SHIP CHANDLERS, INC., Defendants



OPINION and ORDER

In this admiralty action, plaintiff Macario Vinuela, a citizen of Spain and at relevant times a dining room employee aboard the cruise ships "BRITANIS" and "DOLPHIN IV", sues for wages, overtime pay and other surcharges and payments allegedly owed him for his services aboard the "BRITANIS" in May and June 1983. The defendants in this action are "BRITANIS" AND "DOLPHIN IV"; *fn1" Ajax Navigation Corp., owner of the "BRITANIS"; Chandris, Inc., managing agent for "BRITANIS"; Britannia Ship Services, Ltd., food concessionaire for the "BRITANIS"; and Apollo Ship Chandlers, Inc., supplier of food, beverages and galley and dining room personnel to "BRITANIS" as agent of Britannia Ship Services. After a nonjury trial, I find for the defendants.

FACTS

From my observation of the witnesses and exhibits at trial, I find the preponderance of the credible evidence establishes the facts as follows.

 In April 1983 plaintiff, then a waiter in a seasonal hotel dining room in Spain, went to Madrid to interview for work in the United States. In Madrid he met Jorge Treserra who, as Personnel Manager for defendant Apollo Ship Chandlers, hired personnel for ships' dining rooms. Mr. Treserra agreed on behalf of Britannia Ship Services to employ plaintiff. He was hired to be one of three assistant maitres d'hotel on the "BRITANIS". During the conversation between plaintiff and Mr. Treserra it was agreed that plaintiff would be paid a salary of $800 per month plus tips which, for an assistant maitre d'hotel, could total $700 to $800 a month. Since plaintiff had never worked on a ship before, Mr. Treserra explained the nature of the work and the long hours. There was no discussion of overtime pay, holidays, week-end or Sunday work, or other such benefits. Mr. Treserra told plaintiff that he would be entitled to a vacation after nine month's work. He also told plaintiff that he would pay his own fare to the ship's berth in New York. When plaintiff remonstrated, Mr. Treserra explained that if the employer forwarded the amount of the ticket, the employee might not show up. Plaintiff then agreed to pay his own fare. There was no agreement that the fare would be refunded after plaintiff arrived.

 Plaintiff flew to the United States and boarded the "BRITANIS" in New York on April 30, 1983. From then until May 13, when the passengers boarded for the season's first cruise, he assisted in restoring the restaurant to normal operation as the vessel recommissioned after a six-month lay-up. Dining room equipment had to be brought in from storage, linen and cutlery cleaned, and the ship's officers and staff fed as preparations were made to receive passengers on May 13. During this two-week period plaintiff was required to work from 8:00 a.m. to noon, and from 1:00 p.m. to 3:30 p.m. in the afternoon. Otherwise, he was at liberty to go ashore, and it was during that time that he met and fell in love with his future wife.

 On May 15 plaintiff was paid $426.56 representing $400 for the first half of the month of May and $26.56 for the extra day's work on April 30.

 After the passengers came aboard on May 13 the "BRITANIS" took a series of short cruises. The first was a one-day "cruise to nowhere" (that is, simply a day's steaming), followed by a two-day cruise, and four-day and five-day cruises to Bermuda. After each cruise the vessel returned to port in New York. During these cruises the passengers were served four meals a day: breakfast, consisting of two sittings starting at 7:30 a.m. and ending at 10:00 a.m.; lunch, consisting of two sittings starting at noon and ending at 3:00 p.m.; dinner, consisting of two sittings starting at 6:00 p.m. and ending at about 10:15 p.m.; and a midnight buffet that lasted from midnight until about 1:30 a.m. and required the presence of one assistant maitre d'hotel. Each of the regular meals required the presence of the maitre d'hotel and all three assistants, except that the assistant maitre d'hotel who was responsible for the midnight buffet was excused from duty at breakfast the following morning.

 Since the staff was required to be present at least twenty minutes or one-half hour before each meal and for the half-hour cleanup at its conclusion, plaintiff was effectively on duty during the periods 7:00 a.m. to 10:30 a.m., 11:30 a.m. to 3:30 p.m. and 5:30 p.m. to 10:45 p.m. These periods totaled almost thirteen hours a day, subject to the variations on those evenings when he had the midnight buffet and was therefore relieved of duty for the following morning's breakfast.

 When the ship cruised to Bermuda, it stayed in that port for one day. Since few passengers remained aboard, only one assistant maitre d'hotel was required to be on duty for that shift. The other two were given the day off. Thus, during those times, plaintiff could spend his day ashore in Bermuda.

 As a restaurant staff member, plaintiff was under the supervision of the maitre d'hotel, Mr. Alex Lomba, and his superior the Food Service Manager, Mr. Luis Alcobas. It came to Mr. Alcobas' attention that the maitre d'hotel was unhappy with plaintiff's performance. Mr. Alcobas thereafter paid particular attention to plaintiff and observed that the passengers seemed unable to get his attention, that he was sometimes not at his proper position, that he failed to notice when food or plates needed replacement or refilling and that he divided his attentions unevenly among the passengers. Mr. Alcobas attempted some corrective instructions, but concluded that plaintiff was insufficiently experienced to be able to continue serving as an assistant maitre d'hotel on vessels catered by Apollo. By May 20 another waiter had been appointed assistant maitre d'hotel in preparation for taking over plaintiff's position.

 At the end of May, Mr. Alcobas told Mr. Jose Candiera, a trainee for Assistant Food Manager under Mr. Alcobas' supervision, to fire plaintiff. After Mr. Candiera spoke with plaintiff, plaintiff asked Mr. Alcobas why he had been fired, to which Mr. Alcobas responded that plaintiff's work had not been up to standard, probably because of his unfamiliarity with customs in the United States. Pointing out that he had come a long way from Spain for the job, plaintiff asked for a second chance. Mr. Alcobas offered a transfer to another ship, the "DOLPHIN IV", as a waiter, and suggested that plaintiff might use the position to learn and work up to assistant maitre d'hotel. Plaintiff agreed.

 At the May 31 payday on board the "BRITANIS," the $400 balance of plaintiff's pay for the month of May was withheld and, together with $231 collected from plaintiff (totalling $631), was retained by Apollo to cover the price of a return ticket to Spain for plaintiff. At the same time, Apollo purchased a ticket for $104 (out of the $631) for plaintiff's flight from New York to Miami to board the "DOLPHIN IV"

 After a few days delay, plaintiff proceeded to Miami. The "DOLPHIN IV" was at sea when he arrived, and he was lodged in a Miami hotel at Apollo's expense until the "DOLPHIN IV" returned and he joined her on June 10. Plaintiff claims that he was delayed by illness; defendants claim he simply failed to report to his new assignment on time, thus missing the trip and incurring extra expenses. The only apparent significance of that dispute stems from the fact that plaintiff turned in the ticket which Apollo issued him for the flight and purchased a later ticket for $124 with his own funds, for which he now seeks reimbursement. It is uncontested that plaintiff spent the intervening time with his wife-to-be. Aside from his own testimony which I find unreliable, there is no evidence of his illness during that time. I find as a fact that this delay was not necessitated by illness. This determination is supported by the absence of any apparent report of sickness to his employer either during the delay or upon his arrival in Miami, and the absence of any claim of recent incapacitation during a physical examination which he received in Miami. There is no evidence that plaintiff's diagnosed diabetes required the delay in reporting aboard the "DOLPHIN IV".

 Plaintiff's experience on the "DOLPHIN IV" was unsatisfactory from both sides' point of view. He claims he was surprised to find that he was expected to work as a waiter and refused to continue. The defendants' evidence suggests that he got along badly with his co-workers and superiors. The stipulated fact, which I accept, is that he departed the "DOLPHIN IV" by mutual consent on June 24. Plaintiff received a $528 plane ticket from Mr. Treserra for his return trip to Spain (Tr. 293), which depleted the funds in his transportation account held by Apollo. Since plaintiff did not wish to return to Spain, he exchanged the ticket for cash, which he kept.

 After a short trip to the Bahamas, Mr. Vinuela remains happily married in the United States where he is a legal resident.

 Plaintiff's testimony is sharply at odds with the foregoing findings on various points. For example, he testified that during the conversation with Mr. Treserra in Madrid, he was promised overtime at the rate of 50 percent after the first forty, forty-two or forty-five hours (he was not clear which), vacation pay, holidays and all other benefits provided under the law of Panama. With respect to his work aboard the "BRITANIS" during the April 30 to May 13 refitting period, he testified that he was required to labor for sixteen hours or more a day, was not permitted to leave the ship and had to do deck crew work such as cleaning corridors and bulkheads. With regard to the termination of his employment on the "BRITANIS", he insists that he was to be transferred to the "DOLPHIN IV" as an assistant maitre d'hotel. On each of these points, and wherever else his testimony conflicts with the above findings, I rule against him based upon ...


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