Terrance J. FREDERICK, Plaintiff-Appellee,
KIRBY TANKSHIPS, INC., Defendant-Appellant,
Terrance J. Frederick, Plaintiff-Appellee,
Kirby Tankships, Inc., Defendant-Appellant.
Nos. 98-2734, 99-2457.
United States Court of Appeals,
March 8, 2000.
Appeals from the United States District
Court for the Middle District of Florida. (No. 96-01022-CIV-T-26A,
Richard A. Lazzara, Judge.
Before DUBINA, Circuit Judge, KRAVITCH,
Senior Circuit Judge, and NESBITT(*),
Senior District Judge.
DUBINA, Circuit Judge:
This case involves an appeal from
a jury verdict in favor of Plaintiff/Appellee/Cross-Appellant,
Terrance J. Frederick ("Frederick"), on his claim for
Jones Act negligence, unseaworthiness, maintenance, cure, and
unearned wages arising from injuries Frederick received from
a slip and fall while aboard the ship "Champion." Kirby
Tankships, Inc. ("Kirby"), Defendant/Appellant/Cross-Appellee,
presents seven issues for appellate review: (1) whether the jury's
damages award for unearned wages, maintenance, and cure was excessive;
(2) whether the district court erred in denying Kirby's motion
for judgment as a matter of law on the issue of maintenance and
cure; (3) whether the district court erred in not giving a limiting
instruction as to the evidence on Frederick's termination; (4)
whether the district court abused its discretion by not granting
a mistrial after a witness testified on evidence excluded earlier
by an in limine ruling; (5) whether the district court erred
in refusing to limit the testimony of an expert witness; (6)
whether the failure to plead mitigation as an affirmative defense
precludes a jury instruction on that defense; and (7) whether
the district court abused its discretion in denying Kirby's Federal
Rule of Civil Procedure 60(b) motion. Frederick presents two
issues on cross-appeal: (1) whether the district court erred
in directing a verdict against his claim for penalty wages under
46 U.S.C. § 10504; and (2) whether the district court erred
in applying the collective bargaining agreement's maintenance
rate, instead of Frederick's actual maintenance expenditures.
After a thorough review of the record, we conclude that the jury's
damages award for unearned wages, maintenance, and cure is not
supported by the evidence. Therefore, we reverse that part of
the judgment and remand this case to the district court with
instructions to either remit the jury's damages award to $107,946.43
or grant Frederick a new trial on damages. We affirm the district
court's judgment on all other issues.
Kirby owns and operates oil tankers,
including the Champion. Kirby hired Frederick, a career ship
engineer, to work on the Champion as its chief engineer. Frederick
worked on the Champion as it delivered oil from Pascagoula, Mississippi,
to various U.S. ports on the Atlantic Ocean.
On September 12, 1994, while aboard
the Champion, Frederick slipped and fell on an allegedly oily
ramp. As a result, he suffered severe pain in his left knee,
hips, and back. He laid on the deck until another crewmember
found him and assisted him to his room. The ship's captain, Captain
Fox, visited Frederick and entered a notation into the ship's
log that Frederick suffered injuries to his "left leg, knee
to hip." The ship arrived in port on September 13, and Frederick
went to a medical facility where he received a "not fit
for duty" slip. He returned to the ship for the night and
left the ship the next day. Subsequently, he traveled to his
mother's house and stayed with his fatally-ill mother until she
died on October 30, 1994.
While at his mother's house, Frederick
sought treatment for his injuries. Dr. Sicari treated Frederick
for his knee and recommended that he seek further treatment from
Dr. Hottentot, an orthopedic surgeon. Dr. Hottentot examined
Frederick's knee and concluded that his knee had recovered. Dr.
Hottentot, however, discovered that Frederick, for the last 10
to 15 years, has suffered from a degenerative hip condition.
As a result, Dr. Hottentot advised Frederick to undergo a bilateral
hip replacement and advised Frederick that he should not return
Even though Frederick's hip problems
persisted, he returned to work on the Champion in January of
1995 because he needed money. His hips caused him constant pain,
but he could not take pain medication onboard the ship because
Kirby had a policy against drug use by its employees. Due to
the constant pain, Frederick cut short his tour of duty. A few
months later, Kirby terminated Frederick, alleging that he falsified
oil records. After his termination, Frederick consulted an orthopaedic
surgeon, Dr. Choung, who eventually performed right hip replacement
surgery on Frederick.
On May 23, 1996, Frederick filed
a complaint against Kirby, asserting Jones Act claims of negligence,
unseaworthinesss, maintenance, and cure for injuries to his left
knee, both hips, and back that he suffered in the slip and fall.
He also sought lost wages and penalty wages pursuant to 46 U.S.C.
§ 10504. After a series of in limine rulings, the district
court conducted a jury trial.
After the conclusion of the trial,
the jury returned a verdict in favor of Frederick in the amount
of $810,903.80. This award included $525,069.00, for unearned
wages, maintenance, and cure, and $1,242,760.00, for Jones Act
negligence and unseaworthiness, adjusted downward by 77% due
to Frederick's pre-existing hip condition. The district court
denied Kirby's renewed motion for judgment as a matter of law,
or alternatively, motion for a new trial or remittitur. Kirby
then appealed to this court.
On August 6, 1998, Frederick filed
a second complaint against Kirby seeking additional maintenance
and cure payments. This second action, Case No. 98-1559, Civ.
T-23 C ("Frederick II"), has been stayed pending resolution
of this appeal. On August 21, 1998, Frederick filed another complaint,
Case No. 98-207, Civ. OC-10B ("Frederick III"), alleging
disability discrimination under the American with Disabilities
Act ("ADA") and age discrimination under the Age Discrimination
in Employment Act ("ADEA").
Soon after the filing of Frederick
II and III, Kirby filed a Federal Rule of Civil Procedure 60(b)
motion for relief from judgment, alleging that the two subsequent
actions contradicted allegations presented by Frederick in Frederick
I. The district court denied Kirby's Rule 60(b) motion, and Kirby
appealed the district court's ruling to this court. We have consolidated
A. Appeals by Kirby
1. Excessiveness of the Maintenance,
Cure, and Unearned Wages Damages Award
Kirby contends on appeal that the
district court erred in not granting its motion for remittitur,
or alternatively, a new trial on damages only, due to the jury's
allegedly excessive award for maintenance, cure, and unearned
wages. In particular, Kirby avers that the evidence presented
at trial supported a maximum award for maintenance, cure, and
unearned wages of only $107,947.43, a figure well below the jury's
award of $525,069, especially considering that the jury did not
award extra damages caused by a willful and arbitrary refusal
to pay maintenance and cure.
In an appeal from a denial of a
motion for remittitur, this court "must independently determine
the maximum possible award that is reasonably supported by the
evidence in the record." Deakle v. John E. Graham &
Sons, 756 F.2d 821, 827 (11th Cir.1985). Any excess must
be remitted, or alternatively, a new trial may be granted on
damages. See id. at 827-28.
We conclude that the record supports
$107,947.43 as the maximum possible amount for maintenance, cure,
and unearned wages. Frederick's economist, Dr. Susan Long, who
relied upon a daily maintenance rate of $15 per day, calculated
the maximum past and future maintenance that Kirby owed Frederick
to be $20,910.73. Dr. Long also testified that Frederick's past
and future medical expenses, i.e. cure, total $75,000, absent
any complications. Frederick did not produce any evidence of
complications. As to unearned wages, Frederick is entitled to
wages from the time of his discharge until his employment term
expired. The collective bargaining agreement set his daily wage
at $326.24, which, when adjusted at the 21.5 percent tax rate
utilized by Dr. Long, amounts to $256.10 per day. Frederick should
receive unearned wages for the time between September 14, 1994,
the date he disembarked the Champion, and October 30, 1994, the
date his mother died, because Frederick testified that he would
have disembarked upon her death regardless of his health. For
those 47 days, Frederick's unearned wages total $12,036.70. By
adding together $20,910.73 for maintenance, $75,000 for cure,
and $12,036.70 for unearned wages, we conclude that the maximum
possible amount for maintenance, cure, and unearned wages is
Furthermore, the jury did not award
extra damages caused by a willful and arbitrary refusal to pay
maintenance and cure. Pursuant to jury instruction number 13,
the jury could award damages to Frederick based on a finding
of a willful or arbitrary failure by Kirby to pay maintenance
and cure.(1) The jury, however,
held that Kirby was not willful and arbitrary in its failure
to pay maintenance and cure.(2)
Thus, the jury's award of $525,069 exceeds the maximum amount
of damages supported by the evidence.
Now, we must determine whether to
order a remittitur or a new trial. The rule in this circuit states
that where a jury's determination of liability was not the product
of undue passion or prejudice, we can order a remittitur to the
maximum award the evidence can support. See Hendrix v. Raybestos-Manhattan,
Inc., 776 F.2d 1492, 1507 (11th Cir.1985); Howell v. Marmpegaso
Compania Naviera, 536 F.2d 1032, 1034 (5th Cir.1976).(3) Because the jury refused to find Kirby
willful and arbitrary in providing maintenance and cure and found
that the accident slightly aggravated a pre-existing injury,
we reject Kirby's contention that the jury was actuated by passion.
See Howell, 536 F.2d at 1034 n. 4 (holding that a jury
was not actuated by passion where it refused to find the defendant
shipowner negligent and found the plaintiff contributorily negligent).
In sum, we hold that the evidence presented in this case reasonably
supports a maximum award of $107,947.43 for maintenance, cure,
and unearned wages. On remand, we direct the district court to
order a remittitur in this amount, or at Frederick's option,
grant him a new trial on the issue of damages. See Deakle,
756 F.2d at 834.
2. Judgment as a Matter of Law on
Maintenance and Cure
Kirby argues that the district court
erred in rejecting its motion for judgment as a matter of law
on Frederick's maintenance and cure claim. Kirby asserts that
Frederick did not produce sufficient evidence to prove that his
fall aggravated his pre-existing degenerative hip condition.
In deciding a motion for judgment as a matter of law, this court
determines whether substantial evidence of such quality and weight
exists that reasonable and fair-minded jurors in the exercise
of impartial judgment might reach a different conclusion. See
Vulcan Painters, Inc. v. MCI Constructors Inc., 41 F.3d 1457,
1461 (11th Cir.1995). In examining the evidence, we view the
evidence in the light most favorable to the nonmovant. See
Equitable Life Assur. Soc'y of the United States v. Studenic,
77 F.3d 412, 415 (11th Cir.1996).
Frederick presented sufficient evidence
to prove that the fall aggravated his hip condition. On the day
of the fall, Captain Fox reported that Frederick suffered injuries
to the "leg, knee to hip." At trial, Dr. Hottentot,
an orthopedic surgeon, testified that the fall probably wrenched
Frederick's hips and that the fall accelerated the deterioration
of his hips. Similarly, Dr. Choung, Frederick's treating physician,
testified that the fall probably accelerated the deterioration
of Frederick's hips. Dr. Choung also testified that Frederick
used his knees and back to compensate for his hip condition and
that he could have continued to work if not for the fall. Frederick,
however, could not recover from the fall as well as someone without
a pre-existing hip condition.
We conclude that this evidence,
viewed in the light most favorable to Frederick, is of such quality
and weight that reasonable and fair-minded jurors in the exercise
of impartial judgment could conclude that Frederick's fall aggravated
his pre-existing hip condition. See Landry v. Offshore Logistics,
Inc., 544 F.2d 757, 760 (5th Cir.1977)("Here, we have
the classic conflict. One doctor says that Landry has only a
5% disability and can go back to work. Another doctor, and Landry,
say that he cannot. We must resist the temptation to say what
we would have done had we been sitting on the jury, for the issue
was for it to determine."). Therefore, we affirm the district
court's denial of Kirby's motion for judgment as a matter of
law as to the maintenance and cure claim.
3. Evidence of Frederick's Termination
Kirby asserts that the district
court erred in not giving a limiting instruction on evidence
regarding Frederick's termination as required by Federal Rules
of Evidence 105 ("Rule 105").(4)
Kirby argues that the jury could consider the termination evidence
for proof of Frederick's motive to sue, but not for the propriety
of the termination. The district court agreed, stating that the
jury could consider the evidence only in regards to Frederick's
motive to sue, but did not give a limiting instruction as requested
by Kirby. Under Rule 105, a court must give a limiting instruction
when requested where evidence is admissible for one purpose and
not another. See Lubbock Feed Lots, Inc. v. Iowa Beef Processors,
Inc., 630 F.2d 250, 266 (5th Cir.1980).
We conclude that the district court
erred in not granting Kirby's request for a limiting instruction,
but the failure to do so was harmless error because Kirby cannot
show that the district court's failure to give a limiting instruction
affected its substantial rights. See Fed.R.Evid. 103(a);
Fed.R.Civ.P. 61; Lubbock, 630 F.2d at 266. Kirby alleges
that Frederick used the termination's propriety to create sympathy
and prejudice in the jury, but Kirby does not elaborate beyond
this assertion. Therefore, we hold that Kirby has failed to satisfy
its burden of demonstrating that it was prejudiced by the district
court's failure to give a limiting instruction. See Hunt v.
Marchetti, 824 F.2d 916, 920 (11th Cir.1987) (holding that
a party asserting an error on appeal has the burden of demonstrating
prejudice to substantial rights); Perry v. State Farm Fire
& Casualty Co., 734 F.2d 1441, 1446 (11th Cir.1984)(same).
4. Motion for Mistrial
Kirby argues that the district court
abused its discretion by not ordering a mistrial after a witness
on a videotape alleged that Kirby's employees had intentionally
spilled oil onto the Champion's deck. Prior to trial, the district
court, pursuant to Kirby's motion in limine, excluded such evidence
as prejudicial. During the trial, Frederick played the videotaped
testimony without excising the testimony on the spilled oil,
and thus, the jury heard the inadmissible evidence.
We review a district court's decision
on a motion for mistrial for abuse of discretion. See United
States v. Newsome, 998 F.2d 1571, 1575 (11th Cir.1993). To
find error warranting reversal, we must find that Kirby made
a timely objection and that a substantial right was affected.
See Fed.R.Evid. 103(d); Judd v. Rodman, 105 F.3d
1339, 1342 (11th Cir.1997). We conclude, as did the district
court, that Kirby did not make a timely objection because it
did not object until after the videotape testimony was played.(5)
Alternatively, Kirby argues that
its motion in limine preserved its right to appeal this issue.
Generally, a party must object to preserve error in the admission
of testimony, even when a party or a court violates an in limine
ruling. See Collins v. Wayne Corp., 621 F.2d 777, 785
(5th Cir.1980). A motion in limine, however, may preserve an
error for appeal if a good reason exists not to make a timely
objection at trial. See Judd, 105 F.3d at 1342.
Kirby presents two reasons for not
objecting immediately. First, Kirby argues that it elicited most
of the allegedly prejudicial testimony on cross-examination,
and if Kirby objected to its own cross-examination, then it would
have drawn the jury's attention to the prejudicial evidence.
See Rojas v. Richardson, 703 F.2d 186, 189 (5th Cir.1983)("An
objection to one's own testimony is an absurdity.... This Circuit
consequently found the offensive use of damaging information
to fall outside the general rule requiring a timely objection.").
Kirby, however, could have objected when the evidence was offered
on direct examination, thereby avoiding the potential problem
of objecting to its own cross-examination. Second, Kirby asserts
that it did not anticipate that Frederick would play the non-excised
videotaped testimony and was caught off guard. This is not a
valid reason for failing to make a timely objection. Therefore,
we conclude that Kirby has not presented a valid reason for its
late objection and has not preserved its right to appeal this
5. Expert Testimony on Frederick's
Future Work Life
Kirby argues that the district court
abused its discretion by allowing Dr. Choung to testify regarding
Frederick's future work life expectancy. Prior to trial, the
court denied Kirby's motion in limine to limit Dr. Choung's testimony.
At trial, Kirby failed to object to Dr. Choung's testimony regarding
Frederick's future work life expectancy. Kirby does not present
any reasons for not objecting to the testimony at trial. Thus,
Kirby has waived its right to appeal this issue. See Judd,
105 F.3d at 1342; Collins, 621 F.2d at 785.
6. Jury Instruction on Failure to
Kirby alleges that the district
court committed error by denying its requested instruction on
mitigation of damages. In particular, Kirby argues that the court
erred in holding that the failure to mitigate damages is an affirmative
Federal Rule of Civil Procedure
8(c) ("Rule 8(c)") does not include the failure to
mitigate damages among the 19 enumerated affirmative defenses.
Most federal courts, however, regard the failure to mitigate
as an affirmative defense under Rule 8(c)'s catchall clause which
provides for "any other matter constituting an avoidance
or affirmative defense." See Conjugal Partnership v.
Conjugal Partnership, 22 F.3d 391, 400 (1st Cir.1994)("Failure
to mitigate is an affirmative defense as a matter of federal
procedural law...."); Lennon v. United States Theatre
Corp., 920 F.2d 996, 1000 (D.C.Cir.1990) ("[F]ailure
to mitigate damages is an affirmative defense under Rule 8(c).");
Sayre v. Musicland Group, Inc., 850 F.2d 350, 354 (8th Cir.1988)(same).
This circuit has held that the "failure to mitigate damages
... is an affirmative defense." NLRB v. Pilot Freight
Carriers, Inc., 604 F.2d 375, 376 (5th Cir.1979). Kirby has
cited no case to the contrary.
Instead, Kirby asserts two arguments
as to why the failure to mitigate damages is not an affirmative
defense. First, Kirby, citing to a 1917 case, argues that under
admiralty law the failure to mitigate is not an affirmative defense.
See Coronet Phosphate Co. v. United States Shipping Co.,
260 F. 846, 848 (S.D.N.Y.1917)("[T]here is no propriety,
even in admiralty, in pleading evidence in mitigation of damages
in the answer to the libel."). This 1917 case, however,
predates a change in law which applies the Federal Rules of Civil
Procedure to admiralty cases. Since the change in 1966, federal
courts have viewed the mitigation of damages as an affirmative
defense in admiralty cases. See Boudreau v. S/V Shere Khan
C, 27 F.Supp.2d 72, 81 (D.Me.1998) (citing Fashauer v.
New Jersey Transit R. Operations, Inc., 57 F.3d 1269, 1289
(3rd Cir.1995))("The plaintiff has a duty to take reasonable
steps to minimize his or her losses, and the defendant bears
the burden of proving breach of such a duty as an affirmative
defense."); see also Davis v. Odeco, Inc., 18 F.3d
1237, 1246 (5th Cir.1994)(holding in a maritime case that the
defense of set-off against maintenance and cure is an affirmative
Second, Kirby argues that only defenses
which relieve liability must be affirmatively pled and not defenses
that diminish damages. Kirby cites Southport Transit Co. v.
Avondale Marine Ways, Inc., 234 F.2d 947 (5th Cir.1956),
for the proposition that the failure to mitigate damages is not
a defense, but a mere rule of damages. See id. at 952.
The Southport court did not address whether the failure
to mitigate is an affirmative defense, rather it merely explained
the difference between contributory negligence and the failure
to mitigate. In Sayre v. Musicland Group, Inc., the Eighth
Circuit rejected as unsound the exact same assertion that only
defenses that bar recovery, rather than those that diminish the
amount of damages, must be pled affirmatively. See 850
F.2d at 354. Like our sister circuit, we reject Kirby's arguments
and hold that failure to mitigate damages is an affirmative defense
under Rule 8(c). Accordingly, the district court did not err
in rejecting Kirby's jury instruction because failure to plead
an affirmative defense results in waiver of that defense. See
American Nat'l Bank v. FDIC, 710 F.2d 1528, 1537 (11th Cir.1983).
7. Rule 60(b)
Kirby asserts that the district
court abused its discretion by not granting Kirby's Federal Rule
of Civil Procedure 60(b) ("Rule 60(b)") motion for
relief of judgment. Specifically, Kirby argues that the district
court erred by concluding that the subsequent lawsuits filed
by Frederick do not amount to a basis for Rule 60(b)(3) relief
and by failing to address Kirby's Rule 60(b)(5) and (b)(6) claims.
We review the district court's denial of a motion to set aside
a judgment pursuant to Rule 60(b) for abuse of discretion. See
American Bankers Ins. Co. v. Northwestern Nat'l Ins. Co.,
198 F.3d 1332, 1338 (11th Cir.1999). After reviewing the record,
we reject Kirby's arguments and affirm the district court's ruling.
a. Rule 60(b)(3)
Rule 60(b)(3) allows a court to
grant relief from a final judgment if the moving party proves
by clear and convincing evidence that an adverse party has obtained
the verdict through fraud, misrepresentation, or other misconduct.
See Scutieri v. Paige, 808 F.2d 785, 794 (11th Cir.1987);
Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.1978).
The moving party must also show that the conduct prevented the
losing party from fully and fairly presenting his case or defense.
See Scutieri, 808 F.2d at 794; Rozier, 573 F.2d
Kirby alleges two instances of fraud
and misrepresentation committed by Frederick when he allegedly
took a particular position in Frederick I and then took an inconsistent
position in Frederick II and III.(6)
Kirby argues that Frederick committed fraud and misrepresentation
by presenting evidence in Frederick I on the monetary amounts
for both past and future maintenance and cure, and then, subsequently
suing for additional maintenance and cure in Frederick II. Kirby,
however, does not point to any factual allegation made in Frederick
II that directly contradicts Frederick I. Instead, Kirby only
avers that Frederick committed fraud and misrepresentation by
suing a second time for maintenance and cure. If Frederick did
attempt to take a second bite from the proverbial apple as Kirby
argues, then the appropriate action for Kirby is to obtain dismissal
of Frederick II on the basis of claim or issue preclusion, and
possibly, seek Rule 11 sanctions. However, a Rule 60(b) motion
is not appropriate.
Kirby also argues that, in Frederick
I, Frederick stated he was unable to work, but filed in Frederick
III an age and disability discrimination case under the ADA and
ADEA. The ADA defines a "qualified" individual as "an
individual with a disability who, with or without reasonable
accommodation, can perform the essential functions" of his
job. 42 U.S.C. § 12111(8); see also Talavera v. School
Bd. of Palm Beach County, 129 F.3d 1214, 1220 (11th Cir.1997)
(holding that an employee's certification of total disability
for social security disability does not always judicially estop
an employee from arguing that she is a qualified individual with
a disability under the ADA). Consistent with ADA requirements,
Frederick asserts in Frederick III that he can work with accommodation
after his left hip is replaced. Thus, Frederick's assertion in
Frederick III that he could work with accommodation after his
hip is replaced is not inconsistent with his claimed inability
to work in Frederick I. Accordingly, we reject Kirby's arguments
and affirm the district court's Rule 60(b)(3) ruling.
b. Rule 60(b)(5) and Rule
Kirby also argues that the district
court erred by not addressing its Rule 60(b)(5) and (b)(6) arguments.
Rule 60(b)(5) allows a court to provide relief from judgment
where "it is no longer equitable that the judgment should
have prospective application." Kirby argues that the alleged
inconsistencies arising from Frederick II and III make enforcement
of the jury's verdict in Frederick I no longer equitable. In
fact, the district court did address this argument and found
that Kirby presented no evidence that cast doubt on the integrity
of Frederick I. We conclude that the district court correctly
rejected Kirby's Rule 60(b)(5) argument.
Rule 60(b)(6) allows a court to
provide relief from judgment for "any other reason justifying
relief from the operation of the judgment." Federal courts
grant relief under Rule 60(b)(6) only for extraordinary circumstances.
See High v. Zant, 916 F.2d 1507, 1509 (11th Cir.1990).
Kirby contends that it deserves relief because Frederick's counsel,
during closing arguments in Frederick I, stated that this case
was Frederick's last and only chance to receive compensation
for his injuries. We agree with the district court that this
comment may have been inappropriate, but that it is not sufficient
to grant Rule 60(b)(6) relief. Kirby raises two additional arguments
for Rule 60(b)(6) relief, both of which are meritless and are
more appropriately raised in Frederick II and III as arguments
for claim or issue preclusion. Thus, we affirm the district court's
denial of Kirby's Rule 60(b) motion.
B. Cross-Appeals by Frederick
1. Penalty Wages Claim
Frederick argues on appeal that
the district court incorrectly interpreted 46 U.S.C. § 10504
when it concluded that he was not entitled to collect penalty
wages. This court reviews a district court's statutory interpretation
de novo. See United States v. Pemco Aeroplex, Inc., 195 F.3d
1234, 1236 (11th Cir.1999) (en banc ). In addressing Frederick's
contention, we must first determine the type of voyage the Champion
undertook. Only after that determination can we examine the appropriate
penalty wage statute to determine Frederick's rights and whether
an exception to the penalty wage statute excludes Frederick's
First, Frederick argues that the
district court incorrectly held that the Champion was on a coastwise
voyage. Instead, Frederick avers that the Champion was on a coasting
voyage. Frederick's attempted distinction between a coasting
voyage and a coastwise voyage is irrelevant. The prior penalty
wage statute, 46 U.S.C. § 596, provided for a right to collect
penalty wages in coasting voyages, but section 544 specifically
excluded seamen on coastwise voyages from collecting penalty
wages. The current statute, however, does not distinguish between
coasting and coastwise voyages. Instead, the current statute,
which does not mention coasting voyages, establishes three designations
for voyages: foreign, intercoastal, and coastwise.
Under the current statutory scheme,
the Champion was on a coastwise voyage. The statute defines a
coastwise voyage as "a voyage between a port in one State
and a port in another State (except an adjoining State)"
and excludes from the definition voyages between a U.S. port
on the Atlantic Ocean and a U.S. port on the Pacific Ocean. See
46 U.S.C. §§ 10301(a), 10501(a). The Champion traveled
from Mississippi to Connecticut--a coastwise voyage.
Section 10504 provides a right to
penalty wages for seamen on a coastwise voyage. The penalty wage
provision states that a master must pay a seaman the balance
of wages due within two days of termination, otherwise the master
must pay the seaman two days' wages for each day payment is delayed.
See 46 U.S.C. § 10504(b) & (c). This section,
however, excludes seamen on "a vessel engaged in coastwise
commerce" from this penalty wage provision.(7)
See 46 U.S.C. § 10504(d)(1).
Section 10504 does not provide a
separate definition for "coastwise commerce," but section
10501 provides a clear definition of "coastwise." As
previously stated, the Champion falls under section 10501's definition
of "coastwise." Now, we need only determine whether
the Champion engaged in commerce. At a minimum, commerce includes
the transportation of goods between states. See Black's
Law Dictionary 263 (7th ed.1999)(defining "commerce"
as "the exchange of goods and services, especially on a
large scale involving transportation between cities, states
and nations ")(emphasis added). The Champion engaged
in commerce because it transported heating oil between Mississippi
and Connecticut. Thus, the district court correctly held that
the Champion engaged in coastwise commerce.(8)
We recognize that the exclusion
of "a vessel engaged in coastwise commerce" from the
right to recover penalty wages effectively eliminates the benefit
of the penalty wage provision for coastwise voyages.(9) See Dunham v. M/V Marine Chemist,
812 F.2d 212, 215 (5th Cir.1987) (holding that a claim for penalty
wages, pursuant to section 10504, no longer applies to coastwise
voyages). The legislative history surrounding this chapter sheds
light on this contradiction.
Congress re-codified the shipping
laws in 1983 in order to clarify and reorganize a confusing collection
of individual statutes enacted over a period of two centuries.
See H. Rep. No. 98-338, at 113 (1983), reprinted in
1983 U.S.C.C.A.N. 924, 924. As part of this reorganization, Congress
placed the laws regarding foreign and intercoastal voyages into
a different chapter than coastwise voyages. In particular, Congress
placed a penalty wage provision in both 46 U.S.C. § 10313,
which applies to foreign and intercoastal voyages, and 46 U.S.C.
§ 10504, which applies to coastwise voyages. After the reorganization,
Congress noticed that the new penalty wage provisions did not
include the coastwise exception found in the prior law.(10) To rectify this error, Congress
amended 46 U.S.C. § 10504(d)(1) to exclude vessels engaged
in coastwise commerce, and in the amendment's legislative history,
expressly explained its rationale for amending the statute by
Coastwise commerce encompasses voyages
of vessels from one place in the United States to another, including
voyages on the Great Lakes, but not voyages from the Atlantic
Coast to the Pacific Coast.... Under prior law (former 46 U.S.C.
544), vessels engaged in coastwise commerce were exempt from
this requirement. However, in the codification of the shipping
laws in title 46, ... this exemption was inadvertently omitted....
This section [10504(d)(1) ] would simply restore the coastwise
... commerce exemption so that the affected vessels will not
have to disrupt the pay and accounting systems already in place
just because of an oversight in the codification of title 46,
United States Code.
S.Rep. No. 99-26, at 4 (1985), reprinted
in 1985 U.S.C.C.A.N. 25, 28.
Thus, Congress intended this odd
In sum, we hold that "a vessel
engaged in coastwise commerce" is a vessel engaged in commerce
that travels between a U.S. port in one State and a U.S. port
in another non-adjacent State, except a vessel that travels between
a U.S. port on the Atlantic Coast and a U.S. port on the Pacific
Coast. We also hold that the Champion was on a coastwise voyage
and engaged in coastwise commerce. As a result, we affirm the
district court's holding that Frederick could not collect under
the penalty wage statute.
2. Applicable Daily Maintenance
Frederick contends that the district
court erred in holding that the collective bargaining agreement
("CBA") rate of $15 per day for maintenance applies
even though he spent substantially more for maintenance. This
circuit has not addressed this issue, and the other federal circuit
courts that have are divided.
The duty to pay maintenance is imposed
by "general maritime law." Cortes v. Baltimore Insular
Line, Inc., 287 U.S. 367, 370-71, 53 S.Ct. 173, 77 L.Ed.
368 (1932). The right of maintenance consists of the right to
payments sufficient to provide a seaman with food and lodging
comparable to the kind received aboard ship. See Calmar Steamship
Corp. v. Taylor, 303 U.S. 525, 528, 58 S.Ct. 651, 82 L.Ed.
993 (1938). This duty attaches once the seaman enters the service
of a ship. See De Zon v. American President Lines, 318
U.S. 660, 667, 63 S.Ct. 814, 87 L.Ed. 1065 (1943). No
private agreement is competent to abrogate the shipowner's duty
to pay maintenance.(11) See
Relying heavily on the principle
stated in De Zon, the Third Circuit's minority position
holds that a CBA maintenance rate does not bind a seaman, if
the seaman can prove higher daily expenses. See Barnes v.
Andover Co., L.P., 900 F.2d 630, 640 (3rd Cir.1990)("[A]
union cannot bargain away the individual seaman's common law
right to maintenance by agreeing to a wholly inadequate figure
as a daily maintenance rate."). The Barnes court
noted that a CBA could set the maintenance level so low as to
abrogate a seaman's right to maintenance and thus violate De
Zon. See id. at 637. Furthermore, the court held that neither
the federal labor laws nor their underlying policies preempted
the common law right to maintenance. See id. at 639-40.
The Third Circuit therefore concluded that the traditional doctrine
allowing for maintenance could require a court to ignore the
terms of a CBA. See id. at 640.
We conclude that the Third Circuit's
minority position is unpersuasive, and instead, join the majority
of circuit courts in holding that where a CBA fixes a maintenance
rate, the court should accept it as reasonable. See Baldassaro
v. United States, 64 F.3d 206, 212 (5th Cir.1995)(enforcing
rate of $8 set in CBA); Al-Zawkari v. American S.S. Co.,
871 F.2d 585, 588 (6th Cir.1989)(same); Macedo v. F/V Paul
& Michelle, 868 F.2d 519, 522 (1st Cir.1989)(enforcing
rate of $10 set in CBA); Gardiner v. Sea-Land Serv., Inc.,
786 F.2d 943, 948 (9th Cir.1986)(enforcing rate of $8 set in
CBA). The majority position agrees with the minority in that
labor law does not preempt the common law maritime right of maintenance.
See Gardiner, 786 F.2d at 948. The majority, however,
differs in holding that the changed circumstances of unionized
seamen undercut the rationale supporting the traditional right
to maintenance and cure. See Macedo, 868 F.2d at 522 (citing
Gardiner, 786 F.2d 943).
Moreover, the broad labor policies
which undergird federal labor law, as well as the nature of the
collective bargaining process, require adherence to the CBA.
See Gardiner, 786 F.2d at 948-49. "Congress viewed
collective bargaining as a key instrument in its effort to promote
industrial peace.... [T]his court will not lightly embrace the
repudiation of contractual obligations enumerated in a collective
bargaining agreement and will choose the rule that will promote
the enforcement of collective bargaining agreements."
Baldassaro, 64 F.3d at 212-13 (quoting Gardiner, 786
F.2d at 948) (citations omitted). Although the right to maintenance
is a common law right, its rate may be subject to the negotiation
process. See Gardiner, 786 F.2d at 948. In considering
the negotiation process, we note that, as in Baldassaro
and Gardiner, Frederick makes no allegations that the
CBA as a whole is unfair or that the union did not adequately
represent him. During the negotiation process, the right of maintenance
is but one of many issues over which the parties negotiate. See
id. As a result, a court should not examine the adequacy
of the maintenance rate in isolation "because the determination
of its adequacy in relation to the whole scheme of benefits has
already been made by the union and the seamen who voted for the
contract." Baldassaro, 64 F.3d at 213 (quoting
Gardiner, 786 F.2d at 949) (citations omitted).
Frederick also argues that this
court should create an exception to the majority position because
Kirby acted inequitably by failing to pay weekly maintenance
to him as required by the CBA. Instead, five months after the
injury, Kirby paid Frederick a lump-sum. Kirby counters by asserting
that it had trouble locating Frederick, who was at his sick mother's
home, and that once Kirby found him, Frederick informed Kirby
that he would advise Kirby at a later date as to the proper time
and location to send the money. Thus, Kirby contends that it
acted equitably and made a good faith effort to satisfy the CBA.
The jury agreed with Kirby and held that Kirby did not willfully
and arbitrarily fail to pay maintenance and cure to Frederick.
We need not decide whether to create an exception to the majority
position because we conclude that Kirby acted equitably. Consequently,
we hold that where a CBA fixes a maintenance rate, the CBA rate
applies even if the seaman spent substantially more for maintenance.
Thus, we affirm the district court's decision to apply the CBA's
daily maintenance rate of $15.
The jury's award of damages for
unearned wages, maintenance, and cure in the amount of $525,069
exceeds the maximum amount supported by the evidence. The evidence
supports a maximum award of $107,947.43 only. As a result, we
reverse that part of the district court's judgment entered on
the jury's verdict and remand this case to the district court
with instructions to order a remittitur reducing the award of
damages to $107,947.43, or, at Frederick's option, grant a new
trial on the question of damages. We affirm the judgment as to
all remaining issues.
AFFIRMED in part, REVERSED in part,
Lenore C. Nesbitt, Senior U.S. District Judge for the Southern
District of Florida, sitting by designation.
1. Jury instruction
However, you [the jury] may still
be able to award damages to the Plaintiff for any "willful
or arbitrary" failure on the part of the employer to have
paid him maintenance and cure when it was due.
Where the Defendant willfully and
arbitrarily fails to pay maintenance or provide cure to a seaman
up to the time that he receives maximum cure, and such failure
results in an aggravation of the seaman's injury, then the seaman
may recover those damages and necessary expenses that he can
prove he sustained.
2. Special jury
verdict number nine asked the jury: "If you answered 'Yes'
to Question 7 [whether Kirby failed to pay maintenance and cure],
was Kirby willful and arbitrary in their failure to pay maintenance
and cure." The jury answered "No."
3. This court
adopted as binding precedent all Fifth Circuit decisions prior
to October 1, 1981. See Bonner v. City of Prichard, 661
F.2d 1206, 1209 (11th Cir.1981) (en banc ).
provides: "When evidence which is admissible as to one party
or for one purpose but not admissible as to another party or
for another purpose is admitted, the court, upon request, shall
restrict the evidence to its proper scope and instruct the jury
5. The district
court also noted that Kirby did an excellent job of impeaching
the witness and thus reduced the prejudicial effect caused by
the introduction of evidence that Kirby had intentionally spilled
6. In conjunction
with its argument, Kirby asserts that the district court erred
by considering the pleadings in Frederick II and III as allegations
and not as admissible evidence. Generally, "the pleading[s]
of a party made in another action ... are admissible as admissions
of the pleading party to the facts alleged therein." Continental
Ins. Co. of New York v. Sherman, 439 F.2d 1294, 1298 (5th
Cir.1971). We are persuaded that the district court considered
the pleadings as admissible evidence, and accordingly, found
that the pleadings did not prove fraud, misrepresentation, or
misconduct by Frederick.
7. Title 46 U.S.C.
§ 10504 in pertinent part states:
(b) The master shall pay a seaman
the balance of wages due the seaman within 2 days after the termination
of the agreement required by section 10502 of this title or when
the seaman is discharged, whichever is earlier.
(c) When payment is not made as
provided under subsection (b) of this section without sufficient
cause, the master or owner shall pay the seaman 2 days' wages
for each day payment is delayed.
(d) Subsections (b) and (c) of this
section do not apply to:
(1) a vessel engaged in coastwise
cites Solvang v. M/T PLAN KRISTINE, 1994 A.M.C. 1133 (S.D.Tex.1993),
for the proposition that the coastwise commerce exception does
not include a trip from a U.S. port on the Gulf Coast to a U.S.
port on the Atlantic coast. See id. at 1138. The Solvang
court explained that the coastwise commerce exception differs
from a coastwise voyage in that the exception only excludes vessels
that work on sheltered bodies of water. See id. As a result,
the coastwise exception did not apply because the "Gulf
of Mexico is not a sheltered body of water such as a harbor or
coastal waterway and is not within the coastwise commerce exception."
See id. (citing Carson v. Gulf Oil Corp., 123 So.2d
35, 39 (Fla.App.Ct.1960)). Section 10501, however, does not refer
to sheltered bodies of water or harbors in its definition of
coastwise. Instead, Congress clearly intended the coastwise commerce
exception to cover coastwise voyages engaged in commerce. Thus,
we conclude that these cases are unpersuasive.
9. We note that
there may be instances in which a vessel is on a coastwise voyage,
but not engaged in commerce, and accordingly, not engaged in
coastwise commerce. However, we believe that such a situation
would arise rarely, if at all, and perhaps this is a distinction
without a difference. Moreover, we do not have to decide that
issue in this case because we hold that the Champion engaged
10. The prior
statute, 46 U.S.C. § 596, provided in pertinent part:
The master or owner of any vessel
making coasting voyages shall pay to every seaman his wages within
two days after the termination of the agreement under which he
was shipped, or at the time such seaman is discharged, whichever
first happens; and in case of vessels making foreign voyages,
or from a port on the Atlantic to a port on the Pacific, or vice
versa, within twenty-four hours after the cargo has been discharged,
or within four days after the seaman has been discharged....
Every master or owner who refuses or neglects to make payment
in the manner hereinbefore mentioned without sufficient cause
shall pay to the seaman a sum equal to two days' pay for each
and every day during which payment is delayed beyond the respective
Title 46 U.S.C. § 544 provided
that "[n]one of the provisions in sections ... 591-596 ...
of this title shall apply to sail or steam vessels engaged in
the coastwise trade, except the coastwise trade between the Atlantic
and Pacific coasts...."
11. The Supreme
Court, in Calmar, summarized the policy rationale underlying
The reasons underlying the rule,
to which reference must be made in defining it, are those enumerated
in the classic passage by Mr. Justice Story in Harden v. Gordon,
C.C., Fed.Cas.No. 6047: The protection of seamen, who, as a class,
are poor, friendless and improvident, from the hazards of illness
and abandonment while ill in foreign ports; the inducement to
masters and owners to protect the safety and health of seamen
while in service; the maintenance of a merchant marine for the
commercial service and maritime defense of the nation by inducing
men to accept employment in an arduous and perilous service.
303 U.S. at 528, 58 S.Ct. 651.