United States Court of Appeals,
Mario FLORES, Plaintiff-Appellant,
CARNIVAL CRUISE LINES, Defendant-Appellee.
March 21, 1995.
Appeal from the United States District Court
for the Southern District of Florida. (No. 92-2766-CIV-KMM), K. Michael
Before KRAVITCH and CARNES, Circuit Judges,
and HILL, Senior Circuit Judge.
CARNES, Circuit Judge:
This case presents a novel question: if a
seaman whose income consists mainly of tips becomes ill or injured and
is unable to work, can he recover those tips under the remedy for wages
that is provided by admiralty law? We hold that the average tip income
the seaman was earning prior to his incapacitation is to be included in
the measure of wages he is due if he becomes unable to work.
I. FACTS AND PROCEDURAL HISTORY
Mario Flores is a seaman who signed two consecutive
employment contracts to work as a cabin steward on cruise ships owned by
Carnival Cruise Lines. Flores entered his first contract with Carnival
in September 1991 to work for one year on the MS Ecstasy. [Flores Br. 3]
The contract promised Flores a salary of $45 a month, to be paid every
two weeks, and further provided:
If you have been contracted as a ... CABIN
in addition to your monthly salary you may expect daily tips
for your services to the passengers.... [T]he tips you may expect go as
high as $1000.00 a month.
Carnival will take it upon itself to inform
passengers of what is customarily tipped for the work that you perform.
[Flores Br. 3, Carnival Br.App. B] The underlined
words and figures were typed into blank spaces on the original printed
Flores claims that he worked on the Ecstasy
until April 27, 1992, earning tips of $800 a week. [Flores Br. 4] Then
he fell ill and went ashore for medical treatment. While ashore, Flores
received bi-monthly checks for "unearned wages" from Carnival in the amount
of $161.97. [Flores Br. 5] That amount was the same as Flores's vacation
pay would have been, and it was equal to the wages of the lowest-paid non-gratuity-earning
crew member. [Carnival Br.App. E]
Flores stayed ashore from April 27, 1992,
until his first contract expired at the end of September 1992. [Flores
Br. 4] When his first contract expired, Flores signed a second, six-month
contract to work on the MS Fantasy. [Id. at n. 2] The second contract contained
exactly the same payment terms as the first. [Carnival Br.App. B] Flores
claims that he worked on the Fantasy from September 28, 1992, to October
19, 1992, earning tips of $600 a week. On October 19, the ship doctor sent
him ashore again, where Flores remained until the expiration of his second
contract. [Flores Br. 4]
Flores filed a class action suit under Fed.R.Civ.P.
23 against Carnival Cruise Lines, seeking compensatory and punitive damages
on behalf of all tip-earning crew members of the Carnival Cruise Lines
fleet who became sick or were injured in the three years preceding the
filing of Flores's suit and who did not receive "reasonably anticipated
lost tips or in the alternative, monthly guaranteed tips." [RE2:2-5] Carnival
filed a motion to dismiss the complaint, [Carnival Br. 4] maintaining that
it had no legal duty to pay Flores anything more than his $45-per-month
salary as unearned wages.
A magistrate judge first issued an order treating
Carnival's motion to dismiss as a motion for summary judgment, [Carnival
Br.App. D] and then issued a report and recommendation concluding that
"tips which are not guaranteed, ... and not specific ... would not be appropriately
includable as wages...." [RE5:3-4] However, finding merit in Flores's contention
that he had been guaranteed tips by Carnival, the magistrate judge determined
that a genuine issue of material fact existed to preclude summary judgment.
[RE5:4] Carnival filed an objection to the magistrate judge's report and
"After a de novo
considering the Report and Recommendation, the written objections, and
the record herein," [RE6:1] the district court entered an order granting
summary judgment for Carnival on both the compensatory and punitive damages
claims based upon its determinations that the written contract did not
guarantee "any particular amount of tips" to Flores [RE6:6] and that any
alleged oral promise of tips made at the time Flores signed the contract
was merged into the written agreement and barred by the parol evidence
rule. [RE6:5] Flores appeals the summary judgment ruling.
We review de novo
a district court's
grant of summary judgment, considering the evidence in the light most favorable
to Flores. First Union Discount Brokerage Serv. v. Milos,
835, 841 (11th Cir.1993). Because we have no precedent directly addressing
the issue of whether a sick or injured seaman whose income consisted primarily
of tips may recover lost tip income as part of the wages remedy, we consider
the purposes and policy underlying the maritime remedy for wages, the decisions
of courts that have considered similar questions under the rubric of nonmaritime
workers' compensation law, and the actual wording of Flores's contract.
These factors lead us to conclude that Flores may recover his average tip
earnings as unearned wages.
A. THE INCLUSION OF TIPS IN THE MEASURE OF
UNEARNED WAGES UNDER ADMIRALTY LAW
1. The Purpose and Policy Underlying the
Under general maritime law, Flores is entitled
to bring an action for "maintenance and cure," a remedy available to compensate
seamen who fall ill or become injured during their employment. "The cause
of action for maintenance and cure includes three specific items of recovery:
(1) maintenance, which is a living allowance; (2) cure, which covers nursing
and medical expenses[;] and (3) wages." Herbert R. Baer, Admiralty Law
of the Supreme Court
6 (3d ed. 1979); see
1B Benedict on
§ 43 (Aileen Jenner ed., 7th ed. 1994); Grant Gilmore
and Charles L. Black, Jr., The Law of Admiralty
309 (2d ed. 1975).
Unearned wages are measured from the time of the seaman's incapacity until
the end of his employment contract. See Archer v. Trans/American Serv.,
834 F.2d 1570, 1575 (11th Cir.1988).
Although the recovery of unearned wages technically
is a separate element of recovery from those for maintenance expenses or
cure expenses, "it is settled law that wages is a basic component of an
award of maintenance and cure." Id.
at 1574. For that reason, our
references to "maintenance and cure" are meant to include the wages remedy.
Maintenance and cure is a remedy with roots in the medieval sea codes;
If it happens that sickness seizes on any
one of the mariners, while in the service of the ship, the master ought
to set him ashore, to provide lodging and candlelight for him, and also
to spare him one of the ship-boys, or hire a woman to attend him ... [.]
[I]f he recover, he ought to have his full wages, deducting only such charges
as the master has been at for him. And if he dies; his wife or next kin
shall have it.
1B Benedict on Admiralty
Other ancient sea codes contain similar provisions. See id.
a remedy designed to protect seamen from the perils of living and working
at sea. To recover in a maintenance and cure action, the seaman need not
suffer from illness or injury that is causally related to his duties, Calmar
S.S. Corp. v. Taylor,
303 U.S. 525, 527
, 58 S.Ct. 651, 653, 82 L.Ed.
993 (1938), as long as the seaman's incapacitation did not result from
his own wilful misconduct. Garay v. Carnival Cruise Line, Inc.,
F.2d 1527, 1530 (11th Cir.1990), cert. denied,
498 U.S. 1119
S.Ct. 1072, 112 L.Ed.2d 1178 (1991).
The seaman's right to maintenance and cure
was firmly endorsed in Harden v. Gordon,
a famous circuit opinion
by Justice Story:
Seamen are by the peculiarity of their lives
liable to sudden sickness from change of climate, exposure to perils, and
exhausting labour. They are generally poor and friendless, and acquire
habits of gross indulgence, carelessness, and improvidence. If some provision
be not made for them in sickness at the expense of the ship, they must
often in foreign ports suffer the accumulated evils of disease, and poverty,
and sometimes perish from the want of suitable nourishment. Their common
earnings in many instances are wholly inadequate to provide for the expenses
11 F.Cas. 480, 483 (C.C.D.Me.1823) (No. 6,047).
The Supreme Court has noted that "[i]t has been the merit of the seaman's
right to maintenance and cure that it is so inclusive as to be relatively
simple, and can be understood and administered without technical considerations."
Farrell v. United States,
336 U.S. 511, 516
, 69 S.Ct. 707, 709-10,
93 L.Ed. 850 (1949).
The traditional breadth of the remedy, as
well as its nature and purpose, supports Flores's contention that the measure
of his unearned wages should include the tips he would have earned had
he not become disabled. The Supreme Court has repeatedly declared that
"the shipowner's liability for maintenance and cure was among "the most
pervasive' of all and that it was not to be defeated by restrictive distinctions
nor "narrowly confined.' " Vaughan v. Atkinson,
369 U.S. 527, 532
82 S.Ct. 997, 1000, 8 L.Ed.2d 88 (1962) (quoting Aguilar v. Standard
318 U.S. 724, 730
, 735, 63 S.Ct. 930, 933, 936, 87 L.Ed.
1107 (1943)). Moreover, "[w]hen there are ambiguities or doubts, they are
resolved in favor of the seaman." Vaughan,
369 U.S. at 532
S.Ct. at 1000. The purposes of the maintenance and cure remedy include
protecting "poor and friendless" seamen, encouraging shipowners to guard
the safety and health of working seamen, and inducing seamen to accept
duty at sea. Calmar,
303 U.S. at 528
, 58 S.Ct. at 653.
The remedy has served its purposes well over
the centuries. Until recently, no luxury cruise ships, no cabin stewards,
and no system of compensation through tips from passengers existed to complicate
the disabled seaman's simple right to recover wages. It is altogether fitting,
however, that an ancient remedy born of the reality of the seaman's position
should be applied to fit the reality of our modern times. That reality
is reflected in the contract between Carnival and Flores, which acknowledges
that the bulk of Flores's compensation would come not from the mere pittance
of $45 monthly that Carnival agreed to pay, but from the hundreds of dollars
in tips Flores would receive weekly from Carnival's passengers, at Carnival's
urging. The contract itself stated the shipowner's own expectation that
Flores's tips could be as much as twenty times more than his paltry salary,
which amounted to less than two dollars a day. That is the reality of the
2. The Analogy to Workers' Compensation
Although we can find no admiralty cases on
point, we do draw guidance from workers' compensation cases defining "average
weekly wage" to include not only base salary but also average tip income.
Employees in certain service professions have traditionally relied upon
tips for a significant portion of their income. Waiters and waitresses,
for example, might receive only the statutory minimum wage from their employer
yet earn most of their income from tips. An overwhelming majority of the
courts that have considered this question have determined that that tip
income is recoverable as part of an individual's "average weekly wage"
under workers' compensation laws. A recent annotation of state court opinions
addressing the specific question of whether tips or gratuities should be
included in average weekly wages for purpose of workers' compensation remedies
Every court which has considered "tip" cases
under statutes defining average weekly wage as the weekly wage earned by
an employee at the time of his or her injury has determined that such tips
constitute earnings and are to be factored into the calculation of compensation.
Jane Massey Draper, Annotation, Workers'
Compensation: Tips or Gratuities as Factor in Determining Amount of Compensation,
A.L.R. 5th 191, 205 (1993).
Other cases allow the employee to recover
tips, even if the statute expressly prohibits inclusion of gratuities,
by reasoning that tips are distinguishable from gratuities. See, e.g.,
Petrafeck v. Industrial Comm'n,
191 Colo. 566, 554 P.2d 1097 (1976)
(en banc) (excluding tips would defeat purpose of workers' compensation);
Sturgill v. M & M, Inc.,
329 A.2d 360 (Del.1974) ("gratuity"
in dictionary sense meant something over and above amount earned, while
waitress's "tip" was bargained-for recompense and implicit consideration
in contract for hire); Hopkins v. Fred Harvey, Inc.,
92 N.M. 132,
133, 584 P.2d 179, 180 (Ct.App.) ("When it is within the contemplation
of the parties that tips are to be retained by an employee as part of his
compensation, they are to be
regarded as wages for compensation purposes."),
92 N.M. 180, 585 P.2d 324 (1978). Still others include
tips despite the fact that the employee did not conform to a statutory
reporting requirement, because the employer knew that the employee was
receiving tips but had failed to establish a reasonable reporting procedure.
See, e.g., Hanks v. Tom Brantley's Tire Broker,
500 So.2d 614 (Fla.Dist.Ct.App.1986);
Nash v. Holiday Inn at Calder,
395 So.2d 306 (Fla.Dist.Ct.App.1981).
Some cases even suggest that to prevent tip-earning
employees from including tips in their wages would violate the equal protection
clause of the United States Constitution. See, e.g., Petrafeck,
P.2d at 1098 (finding equal protection violation in distinction between
employees earning tips as part of contract and hourly wage earners); Senor
T's Restaurant v. Industrial Comm'n of Arizona,
131 Ariz. 360, 364,
641 P.2d 848, 852 (1982) (en banc) (interpreting statute to include tips
in wages in order to avoid addressing question of equal protection violation).
The reasons given by an Arizona state court apply equally to Flores's situation:
[T]he loss of income from tips is as real
as the loss of income from employer disbursements. The manifest injustice
of compensating for the losses stemming from one source but not from the
other has been a persuasive force in the development of [workers' compensation]
Scott v. Industrial Comm'n,
169, 171, 593 P.2d 919, 921 (Ct.App.1978). Just as it does not matter for
maintenance and cure purposes whether Carnival had any hand in causing
Flores's illness, so it should not matter whether Flores's income came
directly from Carnival or indirectly, in the form of tips given by Carnival's
passengers at Carnival's urging.
Carnival argues that the analogy to state
workers' compensation laws is not apt, because of the differences between
that system of compensation and the recovery rights of seamen. It notes
that maritime labor unions have jealously guarded their "basket of remedies"-maintenance
and cure actions, Jones Act negligence claims, and general maritime law
claims of unseaworthiness-against legislative attempts to replace those
remedies with a maritime equivalent to state workers' compensation schemes.
Unlike seamen, who have remedies both for injuries completely unrelated
to their employment and for those arising from negligence or other breaches
of an employer's duties, employees under workers' compensation laws generally
trade their ability to claim enhanced damages for the security of a no-fault
liability system. [Carnival Br. 23] Carnival contends that this Court therefore
should not "engraft" the definition of wages from state workers' compensation
schemes onto the maritime remedy of maintenance and cure. [Id. 22]
We are not persuaded by Carnival's arguments.
While different remedies apply in the workers' compensation and admiralty
areas, the fact remains that the wage remedy in each seeks to compensate
the injured or disabled employee for compensation lost because of absence
from the job. Both measure the compensation due in terms of the worker's
or seaman's lost "wages." The two situations are analogous to that extent,
and we find the reasoning of the workers' compensation cases persuasive.
includes average tip income, at least where, as here, the employer and
employee anticipate that tips will be a substantial part of the compensation
3. The Griffin
Carnival argues that its position finds substantial
support in Griffin v. Oceanic Contractors, Inc.,
664 F.2d 36 (5th
Cir. Unit A June 1981), rev'd on other grounds,
458 U.S. 564
S.Ct. 3245, 73 L.Ed.2d 973 (1982). In that case, the Court rejected Griffin's
contention that, as a seaman, he was due a maintenance and cure remedy
that included bonus and overtime pay. However, Griffin would have received
bonus pay only upon completion of his term of employment, and he had forfeited
any claim to such pay when, after recovering from his injury, he accepted
employment elsewhere instead of returning to his ship. Id.
By contrast, both parties in this case anticipated Flores would receive
substantial tips each week he labored, and Flores was unable to return
to his ships before his contracts expired.
Court also denied overtime
pay for the short period of time Griffin had worked on the ship, because
"the actual amount of overtime was uncertain, and hence any inclusion of
such would have been purely speculative." Id.
at 40 (citing Keefe
v. American Pac. S.S. Co.,
110 F.Supp. 853, 856 (S.D.Cal.1953) (denying
overtime to seaman because "[a]ctual earning of overtime was an event which
might or might not occur. It depended upon many contingencies.")). Again,
the present case is different. Flores worked long enough that the actual
amount of tip compensation he would have received had he been able to continue
working can be determined without undue speculation.
The decision in Lamont v. United States,
F.Supp. 588 (S.D.N.Y.1985), is closer to the case at hand. In Lamont,
seaman whose overtime earnings had amounted to ninety-one percent of his
base wages was held to be entitled to include the amount of that overtime
pay in the wage component of his maintenance and cure remedy. Looking at
the "custom and practice" on the seaman's ship of paying overtime in amounts
nearly equal to the amount received as base wages, the Lamont
[T]he payment of unearned wages to an ill
or injured seaman includes the full amount reasonably expected by the parties
to be paid during the voyage.... The expectation of "overtime" amounting
to almost 100 percent of the base rate has led the parties to the major
collective bargaining contracts covering American seamen to provide that
generally sailors will be aboard ship only six months out of each year.
This [was] done because it is the common expectation of the parties that
the seaman will be able to earn the annual base income when "overtime"
is included in the six months pay.
613 F.Supp. at 593. The situation
involving Flores's tip income presents an even more compelling case for
inclusion than did the seaman's overtime claim in Lamont.
and practice" and the expectation of the parties here was that the tip
income Flores would receive would be as much as 2200 percent of his monthly
4. Carnival's Remaining Arguments
In addition to those that we have disposed
of in the course of our prior discussion, Carnival makes other arguments
that merit a response. For one thing, Carnival contends that applying traditional
principles of contract law to the contract in this case leads to the conclusion
that Flores's claim should be rejected. The district court denied Flores's
claim for that reason, but Flores's claim is not for breach of contract.
It is for maintenance and cure. The Supreme Court has declared that the
right to maintenance and cure "differs from rights normally classified
as contractual." Vaughan,
369 U.S. at 532
, 82 S.Ct. at 1000. The
ship owner's duty to provide maintenance and cure is contractual "in the
sense that it has its source in a relation which is contractual in origin,
but, given the relation, no agreement is competent to abrogate the incident."
Cortes v. Baltimore Insular Line, Inc.,
287 U.S. 367, 371
, 53 S.Ct.
173, 174, 77 L.Ed. 368 (1932); see Dowdle v. Offshore Express, Inc.,
F.2d 259, 263 (5th Cir.1987) ("the seaman's right to unearned wages also
may not be contractually abrogated"). Our analysis of Flores's claim is
not confined to contract law. Instead, it is enough for our purposes that
Flores's contract anticipated both that the seaman would receive tips,
and that those tips would form the bulk of his employment income.
Carnival also argues that including tip income
in the definition of "wages" for maintenance and cure purposes will lead
to fraudulently inflated claims and leave ships at the mercy of unscrupulous
seamen. Carnival points out that cabin stewards generally are not required
to report their tip income and could easily inflate that which they had
received in order to increase their recovery.
reject this argument for three reasons. First, if the threat of fraudulent
claims is sufficiently serious, Carnival can institute a system in which
tips are reported, or even funnelled through a central point for bookkeeping
purposes on the way to the recipients. Cruise lines have created the current
system of tips as wages for their own economic benefit, and they are free
to make such modifications as their interests require.
Second, courts are in the business of distinguishing
valid from invalid claims. Disabled seamen are not the only individuals
with an incentive to give less than truthful testimony. Criminal defendants
have an even stronger incentive to lie, but the courts have not proven
powerless to protect their judgments in criminal cases from the effect
of false testimony. We have held, for example, that the jury as factfinder
is not compelled to accept the uncontradicted testimony of a criminal defendant
and can even infer that the opposite of that testimony is true. See
United States v. Allison,
908 F.2d 1531, 1535 (11th Cir.1990), cert.
500 U.S. 904
, 111 S.Ct. 1681, 114 L.Ed.2d 77 (1991); see
also United States v. Goggin,
853 F.2d 843, 846 (11th Cir.1988); United
States v. Bennett,
848 F.2d 1134, 1139 (11th Cir.1988). Likewise, an
admiralty court has authority, in proper circumstances, to reject as untruthful
even uncontradicted testimony concerning the amount of tip income a seaman
earned before becoming unable to continue work. Moreover, the court can
consider the amount of tips the ship told the seamen he could expect as
well as the amount of tips those who remained on board actually received.
Finally, we reject Carnival's possibility
of fraud argument because it would be grossly unfair to deprive all seamen
in Flores's position of any semblance of a fair recovery simply because
some might attempt to recover more than the amount to which they are entitled.
While it is not certain that some seamen will obtain more than they are
entitled if we allow them to include lost tip income in the measure of
unearned wages, it is
certain that all seamen will receive less
than they are entitled if we do not permit them to do so.
B. THE CALCULATION OF TIPS AS UNEARNED WAGES
Having determined that for maintenance and
cure purposes Flores's "wages" includes his tips, we turn to the question
of how to calculate the unearned tips. Once again, we consider the principles
underlying the maintenance and cure remedy and the analogous situation
under workers' compensation law.
The seaman's action for maintenance and cure
may be seen as one designed to put the sailor in the same position he would
have been had he continued to work: the seaman receives a maintenance remedy,
because working seamen normally are housed and fed aboard ship; he recovers
payment for medical expenses in the amount necessary to bring him to the
maximum cure; and he receives an amount representing his unearned wages
for the duration of his voyage or contract period. Because in Flores's
case, unearned tips are not predetermined and are not paid by the employer,
the most principled way to calculate the tips he would have earned is to
assume that Flores's average weekly tips for the work he performed on each
ship was the amount of tips he would have earned each week had he stayed
on each ship. Such an assumption is used in workers' compensation cases
that allow inclusion of tips. E.g., Senor T's,
131 Ariz. at 362,
365, 641 P.2d at 850, 853 (affirming inclusion of $400-per-month tip income
in average monthly wage). We have no reason to assume otherwise.
Therefore, the district court should first
determine for each of the two ships the average amount of tips Flores received
weekly before he had to leave the ship. The court should add $10.40 (the
$45-per-month salary divided by four and one-third weeks in each month)
to that average weekly amount. The resulting figure should be multiplied
by the number of weeks Flores was unable to work on that ship until the
end of his contract. The trial court should subtract from that total the
amount Carnival has already paid Flores as his unearned wages.
C. THE PUNITIVE DAMAGES CLAIM AND THE MOTION
FOR ATTORNEY'S FEES
In addition to his wages claim, Flores argues
that he should receive punitive damages because Carnival's refusal to pay
him his unearned wages was willful and arbitrary. He has also filed a motion
for attorney's fees related to this appeal.
Because this is a case of first impression,
Carnival did not abrogate any established legal duty toward Flores, and
therefore did not exhibit willful and wanton misconduct, which is the standard
Flores must meet to recover punitive damages in admiralty law. Hines
v. J.A. Laporte, Inc.,
820 F.2d 1187, 1188 (11th Cir.1987). Furthermore,
Carnival paid Flores more than $45 a month while he was incapacitated,
and Flores apparently did not object to the sums he was receiving as unearned
wages prior to the expiration of the second contract and the initiation
of this suit. We do not think, under these circumstances, that Carnival
acted in bad faith, callously, or unreasonably, which is the standard for
award of attorney fees in admiralty law under Nichols v. Barwick,
F.2d 1520, 1524 (11th Cir.1986).
Flores's motion for attorney's fees is DENIED.
The district court's grant of summary judgment against Flores on the punitive
damages claim is AFFIRMED. The district court's grant of summary judgment
against Flores on his compensatory claim is REVERSED, and the case is REMANDED
for further proceedings consistent with this opinion.
For example, Art. VII of the Laws of Oleron,
an ancient maritime code dating to approximately 1200 A.D., states:
addition to the right of maintenance and cure, an injured seaman has two
other possible avenues of recovery for an injury: (1) an action under general
maritime law for unseaworthiness, Mitchell v. Trawler Racer, Inc.,
U.S. 539, 548-49
, 80 S.Ct. 926, 932, 4 L.Ed.2d 941 (1960); and (2) a statutory
remedy under the Jones Act, 46 U.S.C.App. § 688, for any breach of
the employer's duty, including negligence. No allegations of unseaworthiness
or negligence have been made in this case.
Draper annotation compiles nearly fifty cases addressing inclusion of gratuities
in the form of tips, from twenty-two states and the District of Columbia.
Every one of the twelve annotated cases in which courts refuse to allow
the employee to include tips rejects the worker's claim because: (1) the
employer was unaware that the employee was receiving tips because the employee
had not followed mandatory statutory or regulatory reporting procedures;
(2) the state statute expressly excludes gratuities from the wages calculation;
or (3) the hiring contract did not anticipate that the employee would receive
tips. Draper at § 2a; see, e.g., Sears, Roebuck & Co. v. Viera,
So.2d 49 (Fla.Dist.Ct.App.1983) (disallowing tips where no evidence offered
to show that employer knew or could have known that claimant had received
tips); Coates v. Warren Hotel,
18 N.J.Misc. 363, 13 A.2d 787 (Ct.C.P.1940)
(excluding tips based upon statute that expressly did not include gratuities);
Anderson v. Horling,
214 A.D. 826, 211 N.Y.S. 487 (1925) (excluding
tips because parties did not take tips into consideration when making contract).
None of those reasons are applicable to this case.
non-maritime decisions to answer an admiralty question is not without precedent.
For example, we have previously looked to "nonmaritime common law dealing
with termination of the at-will employment relationship" before determining
whether a seaman could include a retaliatory discharge claim in his Jones
Act action. Smith v. Atlas Off-Shore Boat Serv., Inc.,
1057, 1060-63 (5th Cir. Unit A August 1981) (establishing retaliatory discharge
claim under Jones Act in absence of any direct admiralty law precedent).
Flores is not a United States citizen and does not pay federal income tax
on his tip income. [Carnival Br. 28 n. 5]
district court did not reach the issue of class certification, and neither