Opinion
01 Civ. 7590 (JSM)
October 30, 2002
For Plaintiff: Joseph J. Perrone De Orchis, Walker Corsa, LLP New York, NY.
For Defendant: Alan M. Weigel Healy Baillie, LLP New York, NY.
OPINION AND ORDER
Terry Williams, a seaman who served on the crew of the M/V APL KOREA ("KOREA"), brings this action seeking a statutory penalty for the alleged failure to pay him his wages in a timely manner.
Plaintiff first joined the crew of the KOREA in San Pedro, California on May 3, 2001. Thereafter, the vessel traveled to ports in the Far East and ultimately arrived in Seattle, Washington on June 8, 2001. On that date, Plaintiff received a check for wages due for the voyage to the Far East, less a cash advance he had previously received. At that time, he signed the Particulars of Discharge for Voyage 50, the voyage to the Far East that had begun in Seattle in April, before Plaintiff joined the crew.
Plaintiff continued on as a member of the crew as the vessel proceeded to San Pedro, California, where he left the vessel on June 13, 2001. At the time he left the vessel, plaintiff signed a certificate of discharge which indicated that he had signed on as a second mate on June 9, 2001, in Seattle, on a coastwise voyage on the KOREA which terminated in San Pedro on June 13th.
Plaintiff contends that Defendant is subject to wage penalties under 46 U.S.C. § 10313 or 46 U.S.C. § 10504 on account of the delays in paying him the wages due for the period June 9th to June 13th. Both of these sections were designed to provide protection and relief to seamen. Section 10313, which concerns foreign and intercoastal voyages, states:
(f) At the end of the voyage, the master shall pay each seaman the balance of wages due the seaman within 24 hours after the cargo has been discharged or within 4 days after the seaman is discharged, whichever is earlier. When a seaman is discharged and final payment of wages is delayed for the period permitted by this subsection, the seaman is entitled at the time of discharge to one-third of the wages due the seaman. (g) When payment is not made as provided under subsection (f) of this section without sufficient cause, the master or owner shall pay to the seaman 2 days wages for each day payment is delayed. 46 U.S.C. § 10313.
Section 10504, which deals with coastwise voyages, similarly 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 to the seaman 2 days' wages for each day payment is delayed. 46 U.S.C. § 10504.
There is a dispute between the parties as to which of the above statutory provisions applies to Plaintiff's claim since they disagree over whether the KOREA'S foreign voyage ended in Seattle or continued at least until the vessel reached San Pedro. However, whether the voyage in question was foreign or coastwise, a common issue under both sections is whether the wages were withheld "without sufficient cause." The statute and case law are clear that under either provision wage penalties do not attach if there is "sufficient cause" for nonpayment.
As the Supreme Court noted in Collie v. Fergusson, 281 U.S. 52, 55-56, 50 S.Ct. 189, 191 (1930):
The words `refuses or neglects to make payment * * * without sufficient cause' connote, either conduct which is in some sense arbitrary or willful, or at least a failure not attributable to impossibility of payment. We think the use of this language indicates a purpose to protect seamen from delayed payments of wages by the imposition of a liability which is not exclusively compensatory, but designed to prevent, by its coercive effect, arbitrary refusals to pay wages and to induce prompt payment when payment is possible.
Thus, courts have found that where nonpayment was the result of errors made in good faith, and where claimants cannot produce evidence showing that the delay in payment was arbitrary, willful or unreasonable, sufficient cause has been established. See Livanos v. Pateras, 192 F.2d 319, 321 (4th Cir. 1951) ("`inadvertent clerical mistakes'" establish sufficient cause for delay in payment of overtime wages);Breslin v. Mar. Overseas Corp., 662 F. Supp. 195, 198 (S.D.N.Y. 1987) ("There was also sufficient cause for the failure to pay . . . because the failure resulted from a clerical oversight by [the] payroll personnel department."); Korinis v. Sealand Servs., Inc., 490 F. Supp. 418, 422 (S.D.N.Y. 1980). In general, to prove an absence of sufficient cause, "there [has] to be a showing of `conscious misconduct' on the part of the ship's Captain, conduct by the Captain which was arbitrary, unwarranted, unreasonable, unjust, and willful." Vinieris v. Byzantine Mar. Corp., 731 F.2d 1061, 1064 (2d Cir. 1984) (internal citations omitted) See McCrea v. U.S., 294 U.S. 23, 30, 55 S.Ct. 291, 294 (1935) ("The statute thus confers no right to recover double wages where the delay in payment of wages due was not in some sense arbitrary, willful, or unreasonable."). Wage penalties should not be imposed where there has been an honest and good faith error on the part of the Captain. Vinieris at 1063.
Here, the record establishes that there was no deliberate withholding of Plaintiff's wages. Plaintiff was fully paid in cash or by check for all his services up to June 8, 2001, when the ship reached Seattle. When Plaintiff completed his service on the Seattle-San Pedro voyage on June 13, 2001, he was given a voucher showing that wages were due to him. However, the Captain did not "close" the voucher in the automated payroll system because there was a legitimate dispute concerning overtime that Plaintiff was claiming which he wanted to resolve before closing it. Because the voucher had not been closed, Plaintiff's payroll data was not transferred to ASM's payroll department. As time passed, the Master became involved with other duties and "overlooked" closing the vouchers.
On June 22, April Murray, an individual in ASM's payroll department inquired about the open vouchers (Plaintiff's and others') but was told by Ron McCauley, the Manager of Personnel and Crewing, not to pay the vouchers. It wasn't until Murray reminded McCauley of the vouchers on July 2nd that McCauley instructed the Master to close the vouchers if they were complete. To this instruction, the Master responded, "I'm sorry for the oversight." On July 3rd, Plaintiff was mailed a check for the overtime wages (those that were in dispute), but nothing for the regular wages reflected in the voucher. The check for the regular wages was not mailed until July 17th, due to an additional oversight, this time by a payroll clerk who did not catch the unpaid voucher in the previous week's paperwork.
While Plaintiff's counsel tries to create an issue of fact as to the good faith of the assertions by the Captain and other personnel involved in processing Plaintiff's payment, there is no factual basis from which a trier of fact could conclude that the failure to make a timely payment was the result of "`conscious misconduct' on the part of the ship's Captain, conduct by the Captain which was arbitrary, unwarranted, unreasonable, unjust, and willful." Vinieris v. Byzantine Mar. Corp., supra.
Although counsel attempt to suggest that the delay in paying Plaintiff was motivated by the desire to punish him as a "meddlesome interloper" (Pl. Br. at 23), there is no evidence that Plaintiff's request for cash payment so offended the Captain or anyone involved in the payment process that they undertook to punish him by delaying the payment of the wages due him.
The written request for cash payment which Plaintiff submitted prior to leaving the ship, stated only: "Archie, I request to be paid in cash, instead of company voucher, if this isn't too much trouble for Captain Londagan." Although Plaintiff testified that when he asked the Captain directly for cash payment, the Captain refused his request, stating that the company policy was to give vouchers only, the Plaintiff's testimony does not give the slightest suggestion that the Captain was in any way offended by the request. Indeed, the Captain's performance report concerning Plaintiff indicated that, should Plaintiff desire to sail with the vessel in the future, "he will be a welcome addition to the Korea." These are far from the comments of a Captain who had been offended by a crewman's request to be paid in cash.
Because there was sufficient cause for withholding payment, Defendant would not be liable for wage penalties under either 46 U.S.C. § 10313 or 46 U.S.C. § 10504. Thus, Defendant's motion for summary judgment is granted and the complaint is dismissed.