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February 25, 1991


The opinion of the court was delivered by: Platt, Chief Judge.


On March 14, 1984, plaintiff Gillikin was an able-bodied seaman aboard the U.S.N.S. MAUMEE, an 85 class tanker, owned by the defendant, the United States, and operated by the Military Sealift Command through a contract operator.*fn1 On that day, Gillikin injured his knee while performing his duties during one of the MAUMEE's transatlantic military missions.

He brought the present action under the Suits in Admiralty Act, 46 U.S.C.App. §§ 741-52 (1982) (the "SAA"), and the Public Vessels Act, 46 U.S.C.App. §§ 781-90 (1982) (the "PVA"), seeking recovery on three theories, 1) Jones Act negligence, 2) unseaworthiness and 3) maintenance and cure. These claims were tried to this Court and, by its Amended Memorandum and Order, dated November 7, 1989, it denied the first two claims. However, it granted the Gillikin's claim for maintenance. The United States now moves this Court pursuant to Fed.R.Civ.P. 59(e) for an order modifying the judgment entered by the Clerk of the Court on November 21, 1989. For the following reasons, that motion is now granted in part and denied in part.

I.  The Applicability of the Maintenance Rate Contained in
    the Collective Bargaining Agreement

The right to maintenance entitles a seaman taken ill or injured in service to a vessel to collect support payments from the vessel's owner without regard to fault on the part of the owner. Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 528, 58 S.Ct. 651, 653, 82 L.Ed. 993 (1938). These payments are intended to compensate the seaman for the cost of food and lodging comparable to that which he would have received aboard ship had he not been incapacitated. Id. The right to maintenance continues until the seaman recovers or his condition permanently stabilizes, a state known as "maximum cure." Vaughan v. Atkinson, 369 U.S. 527, 531, 82 S.Ct. 997, 999, 8 L.Ed.2d 88 (1962).

The right of maintenance is ancient, dating back to the medieval sea codes. Gilmore & Black, The Law of Admiralty, § 6.6 (2d ed. 1975). In this country, it has existed as a matter of federal common law since the early nineteenth century. Harden v. Gordon, 11 Fed.Cas. n. 6047, p. 480, 483 (C.C.D.Me. 1823) (Story, J.). As originally formulated, the right of maintenance was intended to protect seaman put ashore "poor and friendless" in alien ports from "the accumulated evils of disease, and poverty" as well as from their own "habits of gross indulgence, carelessness and improvidence." Aguilar v. Standard Oil Co., 318 U.S. 724, 728, 63 S.Ct. 930, 932, 87 L.Ed. 1107 (1943) (quoting Harden v. Gordon, supra). It was also designed to provide an incentive for shipowners to look after the health and welfare of their seamen as well as an incentive for prospective seamen to enter into this sometimes dangerous but important industry. Id. The "broad and beneficial purposes" underlying the right have led courts to guard its boundaries closely and to avoid fine distinctions which might diminish its scope. Doubts or ambiguities relating to the right must be resolved in favor of the seaman. Vaughan, supra, 369 U.S. at 531-32, 82 S.Ct. at 1000; Aguilar, supra, 318 U.S. at 735-36, 63 S.Ct. at 936. Although it has its origin in a relationship which is contractual in nature, in the past the right has not itself been regarded as contractual. Cortes v. Baltimore Insular Line, 287 U.S. 367, 371, 53 S.Ct. 173, 174, 77 L.Ed. 368 (1932). Rather, the shipowner's obligation to pay maintenance was deemed to have been imposed by law and thus to be beyond contractual "abrogation." De Zon v. American President Lines, 318 U.S. 660, 667, 63 S.Ct. 814, 818, 87 L.Ed. 1065 (1943); Cortes, supra, 287 U.S. at 371, 53 S.Ct. at 174.

Several circuits have considered the issue of whether a court must enforce a rate of maintenance specified in a collective bargaining agreement even though that rate is not capable of providing the seaman with food and lodging comparable to that enjoyed aboard ship. Of these, three have come to the conclusion that while they may not abrogate the right completely, such agreements may substantially "modify" it. The most complete statement of the rationale underlying these decisions is laid out in Gardiner v. Sea-Land Service, Inc., 786 F.2d 943 (9th Cir. 1986), which enforced a contractually specified maintenance rate of eight dollars a day. Although it noted that the right to maintenance was beyond contractual abrogation, Gardiner held that a seafarer's union could properly submit the right to maintenance to the collective negotiation process. Id. at 949. Moreover, it held that, when challenged by a union member, the rate contained in the agreement eventually produced by such negotiations could not be judged in isolation, but rather only in relation to the total package of benefits provided by the agreement. Id. Where such agreements reduced the rate of maintenance payments below the level necessary to provide comparable food and shelter, they could not be considered to have "abrogated" that right so long as it was clear that a genuine "quid pro quo" had been received through collective bargaining. Id. Only where a seaman could show that the collective bargaining agreement as a whole was unfair or where he could show that the rate provided was no more than a token and that the union had received no significant quid pro quo for surrender of the right, could he avoid the specified rate. Id. at 949-950.

Although it held that the federal labor laws did not preempt the maritime rate of maintenance, the Ninth Circuit nevertheless argued that its holding was compelled by the dictates of federal labor policy. Id. at 947-48. If collective bargaining agreements were not permitted to regulate the broadest possible array of rights related to the employment relationship, it felt that two of the aims of federal labor policy, the promotion of industrial peace and the collective economic empowerment of workers would be unjustifiably threatened. Id. at 949-50.

This reasoning was later adopted by decisions of the First and Sixth Circuits. See Macedo v. F/V PAUL AND MICHELLE, 868 F.2d 519 (1st Cir. 1989) ($10.00 daily rate); Al-Zawkari v. American Steamship Co., 871 F.2d 585 (6th Cir. 1989) ($8.00 daily rate).

In Barnes v. Andover Co., 900 F.2d 630 (3rd Cir. 1990), the Third Circuit adopted a different approach. Refusing to enforce an eight dollar daily rate, the Barnes court first held that the right to maintenance was not purely a contractual one and historically had been considered beyond contractual abrogation. Id. at 636-37. It noted that the policies which traditionally underlay the right might very well have little relevance in the case of unionized seamen whose union membership renders them neither friendless nor improvident. Id. It did not, however, feel that the emergence of unions allowed it to disregard its longstanding obligation to guard the interests of seaman, who remained "wards of the admiralty." Id. at 637.

Like Gardiner, Barnes also found that the federal labor laws did not preempt the right of maintenance. Id. at 637-39. Unlike the Ninth Circuit, however, the Third Circuit refused to accord dispositive significance to the federal policy favoring full enforcement of collective bargaining agreements. Id. at 640. Finding no authority for what it termed a doctrine of "quasi-preemption," Barnes refused to enforce an agreed rate of maintenance which it deemed inadequate. Id. Absent some indication of Congressional intent, it did not feel that it could allow a private contract to "override" a common law right of such longstanding. Id.

Based upon its reading of these cases, this Court concludes that the approach outlined in Barnes is the proper one. The source and substance of the right to maintenance direct that Gillikin's recovery may not be limited to eight dollars per day on the ground that that is the rate mandated by the collective bargaining agreement.

The right to maintenance springs from maritime law and not from the contract of employment. As a result, it is beyond the power of private ...

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