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
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.
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
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
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 ...