Opinion
No. 7:02-CV-212-F1.
October 5, 2004
ORDER
This matter came before the undersigned for a bench trial on August 31, 2004. Present before the court were the plaintiff, Windsor Young, and his attorney, Mr. John Richard Newton of the Wilmington, North Carolina Bar. The defendants, Travis Dean Hair and his wife, Michelle F. Hair (collectively "Hair"), were represented by Mr. T. Kirk Truslow, of the North Myrtle Beach, South Carolina Bar, and appeared through L.R. 2.04 counsel, Mr. Ian D. Maguire of the Myrtle Beach, South Carolina Bar. The parties filed their Pre-Trial Order on June 8, 2004.
All exhibits listed in the Pre-Trial Order to which no objection was made were ADMITTED prior to commencement of the bench trial. That is, all listed exhibits except the defendants' proposed Exhibit 1, were admitted.
Based on the testimony received during the August 31, 2004, bench trial, and the exhibits admitted therein, the court enters the following:
FINDINGS OF FACT
1. The defendants were properly served with process in this case.
2. At the time the defendants were served with process in this case, they were engaged in "substantial activity" within North Carolina, and they continuously have "purposefully availed" themselves of the privileges of conducting business in this state since before the complaint was filed in this action. See also Order of January 26, 2004 (DE #13) (denying defendant's motion to dismiss for lack of personal jurisdiction).
3. Windsor Young, age 39 at the date of trial, began commercial fishing in 1997 or 1998 when he moved to the Little River, South Carolina area. His first job on a boat was with Danny Juel as a deckhand on a head boat. In 1998 or 1999, Young began his first commercial fishing job with Rebecca and Freddie McGinn, at which time he worked on a fishing boat as a deckhand. During the summers, Young worked for Juel.
4. After 2000, Young worked on the McGinn's fishing boats year-round, although he occasionally worked another job in Wilmington, North Carolina.
5. The McGinns own the Little River Fish House in Little River, South Carolina. The Fish House buys fish from commercial fishermen. The McGinns provide free dock space to commercial fishermen who sell exclusively to the Fish House.
6. Except when he worked for Bill Fields in Southport and not counting his single fishing trip with Dean Hair, Young has worked only on the McGinns' fishing boats.
7. The defendants own a fishing boat, the MM.
8. After he ceased working in Wilmington in July 2002, Young called Rebecca McGinn from Castle Hayne, North Carolina, to "see if anybody needed help." Young Depo. p. 17.
9. Mrs. McGinn advised Young that only one boat was "in" and that she would inquire whether that boat needed crew.
10. The one boat at the docks was the MM. Although Hair usually fished alone, he agreed to take Young out on his fishing trip if Young arrived at the docks before Hair was ready to leave.
11. Young was not at the dock when Hair was ready to leave, so Hair left without him. However, Young arrived shortly thereafter, and, following a radio call from shore, Hair returned to the dock and picked up Young.
12. Young's duties aboard the MM during the three-day trip included "operating a [fishing] reel, taking care of the fish, helping on the boat," Young Depo. p. 22, as well as baiting hooks.
13. Traditionally, a crewman or deckhand is paid for his work from the proceeds of the sale of the catch; the standard fee was ten per cent of the proceeds.
14. Although Hair adamantly denies having "hired" Young, he conceded that Young "was the crew man that I . . . was asked to carry by the McGinns." Hair Depo. p. 17. Hair also denies having paid Young, although he admitted during his deposition that "Well, I guess if he [Young] wouldn't have went fishing with me, I would have had less fish than that." Id. at 18.
15. Hair was paid for his catch on this occasion by a check from the McGinns. Although Hair's and Young's accounts differ as to the particulars of their payment for the July fishing trip, the court finds most persuasive the Defendants' Trial Exhibit 2, a handwritten invoice from the Little River Fish House.
16. The court interprets the invoice (Defendants' Trial Exhibit 2) to reveal the following:
a. On July 15, 2002, the MM's trip #19 (the trip at issue here) resulted in a gross sale to the Fish House of $1,519.85, from which itemized deductions were made, resulting in a net sum due Hair of $964.11.
b. Check number 15317, for "Dean Boat" was made out in the sum of $723.08, which represented 75% of the net proceeds of the sale that went to Hair.
c. A second check, number 15318 in the sum of $241.02 also was paid. It may or may not have been made out to Young, but it did represent his 25% share of the proceeds of the gross sale (the "lay").
d. The notations, "$20.00" and "200.00 adv." appear beside Young's name. The significance of these figures was not clarified at trial, but is not critical to the disposition of this case.
Young insists that he was paid in cash for the trip.
17. During the three-day fishing trip, Hair supplied Young's food, and he and Young slept on the MM.
In response to the court's question, Hair stated that Young did not help stand watch at night because Hair does not conduct watches on his vessel.
18. According to his deposition testimony, Hair budgets $100 for food on each fishing trip, approximately $70 of which goes to feed his "crew" during a two to three day trip. Hair Depo. p. 29.
The Fish House invoice, Defendants' Exhibit 2, shows that the Fish House deducted $97.11 for "groceries" from the gross sum due for MM's catch.
19. The MM and its crew returned from its fishing trip on Sunday night, July 14, 2002, and docked at the Fish House dock. Hair and Young did not unload the catch that night, but planned to do so the next morning, Monday, July 15th.
20. Young had not yet been paid for his work on the three-day fishing trip.
21. After the MM was made fast at the Fish House dock on Sunday night, Young started up the dock, away from the vessel for the night, but remembered he had left something on the boat.
22. As Young was attempting to re-board the MM to retrieve a pack of cigarettes he had left with his things aboard the MM, Young fell and suffered an injury to his left knee. Young contends he fell after he had stepped into the boat; Hair contends Young fell before he had stepped into the boat. It is irrelevant whether the fall occurred before or after Young re-boarded the MM.
23. Hair called an ambulance which transported Young to the Seacoast Medical Center. Young was treated at Seacoast Medical Center and released with a referral to an orthopaedic specialist.
24. Young did not immediately seek treatment by an orthopedist because he could not afford to do so.
25. Beginning on the morning after his injury, Young sought assistance from Hair in paying medical bills, and Hair has refused to do so from the first request. During one telephone call Young made to the defendants, Mrs. Hair advised him that she and her husband were "not going to pay a bunch of money" (Young's words), and suggested that Young quit asking.
26. Hair explained during his deposition that he moved his fishing operation from Little River, South Carolina up to North Carolina, on or about August 5, 2002, because "Windsor Young was calling and harassing us, and Mr. McGinn started taking pictures of my boat the following morning after [Young] got hurt; so I figured it was time for me to go." Hair Depo. p. 7.
27. The record reflects that Young made a number of requests, one of which was handwritten, that Hair assist Young in receiving medical treatment. None of the requests were honored by Hair. Even after Young retained counsel who made a formal, written request for maintenance and cure, Hair continued to refuse to provide the same.
28. Young's attorney was able to make arrangements for Young to receive the medical treatment required to bring Young to his maximum level of medical improvement.
29. As a consequence of the injuries he sustained when he fell on the night of July 14, 2002, Young was unable to work until on or about December 2, 2002, when he reached his maximum level of improvement.
30. The parties have stipulated that the total of medical expenses Young incurred as a result of his injury on the night of July 14, 2002, is $12,458.87.
The court recognizes that the defendants do not, however, stipulate as to the cause of those injuries, or liability for the medical expenses.
31. Hair's refusal to pay maintenance or cure was wrongful, willful, wanton, and in callous disregard of Young's claim.
APPLICABLE LAW
Maintenance and cure are the unique obligations that ship owners owe sailors who fall ill or become injured while in the service of a ship. Neither fault nor causation is required. If a sailor is injured or becomes ill while in the service of the ship, the ship owner has an absolute duty to pay for the sailor's food and lodging (maintenance) as well as any necessary medical expenses ( cure) during the sailor's recovery. LeBlanc v. B.G.T. Corp., 992 F.2d 394, 397 (1st Cir. 1993). "In the service of the ship" means that the sailor was "answerable to [the ship's] call to duty" when he or she fell ill or was injured. Farrell v. United States, 336 U.S. 511, 516 (1949).
Maintenance and cure were fashioned to protect sailors who historically faced hazardous conditions from the sea, pirates and foreign ports. See Calmar v. Taylor, 303 U.S. 525, 528 (1938). The Supreme Court has explained the policies behind the obligation:
The ship owner's ancient duty to provide maintenance and cure for the seaman who becomes ill or injured while in the service of the ship derives from the "unique hazards (which) attend the work of seamen" and fosters the "combined object of encouraging maritime commerce and assuring the well-being of seamen."Vella v. Ford Motor Co., 421 U.S. 1, 3-4 (1975) (quoting Aguilar v. Standard Oil Co., 318 U.S. 724, 727 (1943)). Ironically, it has been said that "[t]he protection was crafted in such a way as to be `so inclusive as to be relatively simple, and [so that it] can be understood and administered without technical considerations. It has few exceptions or conditions to . . . invite litigation.'" Whitman v. Miles, 294 F. Supp.2d 117, 121-22 (D. Me. 2003) (internal citations omitted).
A shipowner's duty to provide maintenance and cure for ill or injured seaman is quite broad. See Vella, 421 U.S. at 4. The Supreme Court has held "that the duty arises irrespective of the absence of shipowner negligence and indeed irrespective of whether the illness or injury is suffered in the course of the seaman's employment." Id; see also Calmar S.S. Corp. v. Taylor, 303 U.S. at 527-28 (1938) (maintenance, cure and unearned wages are owed regardless of fault). Moreover, "[c]onceptions of contributory negligence, the fellow-servant doctrine, and assumption of the risk have no place in the liability or defense against [the duty of maintenance and cure]." Warren v. United States, 340 U.S. 523, 528 (1951) (internal citations and quotation marks omitted). However, if a seaman's injuries are the result of "wilful misbehavior or [a] deliberate act of indiscretion," he will be barred from recovery. Id. (internal citations and quotation marks omitted); see also O'Bright v. John's Towing Service, Inc., 9 Fed. Appx. 228, 231, 2001 WL 565242, slip op. at 2 (4th Cir. 2001).
The obligation to pay maintenance and cure arises from the contractual employment relationship. See Tate v. American Tugs, Inc., 634 F.2d 869, 870 (5th Cir. 1981). Under the Jones Act, there can be only one employer. See, e.g., Ryan v. United States, ___ F.3d. ___, No. CIV 02-2335, 2004 WL 1834967, slip. op. at 3 (D. Md. Aug. 17, 2004) (citing Mitola v. Johns Hopkins Univ. Applied Physics Lab., 839 F.Supp 351, 354-55 (D. Md. 1993) ("[A] `seaman' is entitled to sue his employer, and only the single entity determined to be his employer, . . . pursuant to the Jones Act.")).
Fishermen are seamen, see, e.g., Tran v. Captain Glyn, Inc., 909 F. Supp. 727, 733 (D. Hawai'i 1995); Putnam v. Lower, 236 F.2d 561, 570 (9th Cir. 1956), for the remedy of maintenance and cure. Frequently, fishermen are compensated under the customary plan of "lays" or shares in the proceeds of the catch, and there are a number of traditional variations on this arrangement. See, e.g., Hudgins v. Gregory, 219 F.2d 255, 258 (4th Cir. 1955). See also Osland v. Star Fish Oyster Co., 107 F.2d 113 (5th Cir. 1939) (fishermen whose compensation is based on lays or shares in the success of the venture are entitled to maintenance and cure); Macedo v. F/V Paul Michelle, 868 F.2d 519, 521 (1st Cir. 1989); Ursich v. deRosa, 328 F.2d 794 (9th Cir. 1964); 2 THE LAW OF SEAMEN § 30:12, n. 8 (5th ed. 2003) (listing and defining more than half a dozen permutations of the "lay" or share plan, including The Fifth Lay, The Broken Forty Lay, The "Hampton" Lay, and the Italian Lay.)
At first blush, the facts of the instant case appear to raise gnarly questions concerning Young's status as a "seaman" and Hair's status as his "employer" for purposes of determining whether Young is entitled to maintenance and cure. Rather than re-invent the wheel, the court refers to the exhaustive discussion of maintenance and cure history and law in Hudspeth v. Atlantic Gulf Stevedores, Inc., 266 F. Supp. 937 (E.D. La. 1967), and to a discussion of the modern "seaman" test in Harbor Tug Barge Co. v. Papai, 520 U.S. 548 (1997).
In the latter case, the Court considered whether, Papai, a member of the Inland Boatman's Union of the Pacific (IBU), and classified as a "qualified deckhand," was a "seaman" under the Jones Act. Papai was not employed continuously by a single employer but through the IBU union hall for short periods by different employers to perform stevedoring and maintenance, as well as traditional seaman's work. Harbor Tug did not hire permanent or regular crews for its vessels, but hired workers from the IBU on a day-to-day basis. On the date of his injury, Papai was painting the housing structure of a tug.
The essential requirements for seaman status are twofold. First, . . . an employee's duties must contribut[e] to the function of the vessel or to the accomplishment of its mission. . . . Second, . . . a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature. The seaman inquiry is a mixed question of law and fact. . . .Id. at 554 (citations and internal quotations omitted; alterations in original). Papai focused on the second element of seaman status: whether Papai could demonstrate a "connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature." Id. The Court explained:
For the substantial connection requirement to serve its purpose, the inquiry into the nature of the employee's connection to the vessel must concentrate on whether the employee's duties take him to sea. This will give substance to the inquiry both as to the duration and nature of the employee's connection to the vessel and be helpful in distinguishing land-based from sea-based employees.Id.
The considerable litigation concerning claimants' seaman status that resulted in a plethora of common law tests and factors, including those set forth in Papai, has thrived largely as a result of disputes whether employees engaged in traditionally land-based occupations such as welding or painting become "seamen" by virtue of performing their jobs in a maritime setting, or whether workers whose duties usually are undertaken in traditionally maritime contexts still are "seamen" when their employment moves to a non-maritime setting.
The Supreme Court explained that:
The fundamental purpose of this substantial connection requirement is to give full effect to the remedial scheme created by Congress and to separate the sea based maritime employees who are entitled to Jones Act protection from those land-based workers who have only a transitory or sporadic connection to a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea.Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995) ("we think it preferable to focus upon the essence of what it means to be a seaman and to eschew the temptation to create detailed tests to effectuate the congressional purpose [of the Jones Act].") Cf. Papai, 520 U.S. at 560.
The substantiality and duration of a claimant's connection with a vessel for Jones Act seaman's status is considered in the context of the employment during which the subject injury occurred, not in light of the claimant's entire career. See Papai, 520 U.S. at 557-60. As applied here, Young's seaman status is determined in the context of his "employment" by Hair as a hand on the three-day MM fishing trip that ended on or about July 14, 2002. The evidence presented here is that Young was on the MM for the entire three-day trip and assisted in varying manners and degrees with the task of commercial fishing. Therefore, it is beyond cavil that Young was "substantially connected" to the vessel MM for the duration of his employment by Hair. See, e.g., Hudspeth, 266 F. Supp. at 941 (seamen need not be assigned to the vessel for extended voyages or even sleep aboard the vessel in order to be awarded maintenance; even day-workers who supply their own meals generally are held to be entitled to maintenance). Whether, when, and for how long Young may have fished for the McGinns before or after his employment by Hair is not relevant to the court's inquiry in determining Young's status as a "seaman" for purposes of this case. See Papai, 520 U.S. at 557-58.
Hair's suggestion that no employment relationship existed between himself and Young is a non-starter. Granted, the relationship was not express, but a contract was formed when Young, through Ms. McGinn, offered himself as a deckhand, and Hair accepted that offer by returning to the Little River dock and picking up Young before embarking on the fishing trip. Young nearly had completed performance of his contractual duties (his assistance in unloading the catch remained to be executed), and was awaiting Hair's performance of his obligation to pay Young therefor from the sale proceeds of the catch.
The court finds the case, Rainville v. F/V GEM, 351 F.Supp. 369 (S.D. Fla. 1972), instructive in defining the nature and scope of Young's employment relationship with Hair, on the facts before the court. Rainville, who had served as a crew member for a fishing trip and remained aboard the vessel with the implied, but not express, consent of the captain in anticipation of making another trip, nevertheless was determined not to be a seaman. Like Young, Rainville had no assurance that he would be on the ship when it next sailed. However, unlike Young, Rainville had no further duties, already had been paid off, and was not receiving any additional compensation at the time he was injured.
Rainville's "employment" had ended by the time he was injured; Young's had not. Young still was expected to assist in unloading the fish he and Hair had caught, and would be paid from the proceeds of that sale to the Fish House. Young left his personal items aboard the MM, as the unloading was to take place the following morning. Upon completion of assisting in unloading the catch, Young would fully have performed his duties under the parties' implicit employment contract, giving rise to Hair's obligation as his employer to pay Young for his work. A seaman is in the service of his vessel if he is at a location for the convenience of his employer at the time of the injury. See Murphy v. Light, 224 F.2d 944 (5th Cir. 1955), cert. denied, 350 U.S. 960 (1956). Cf. LeBlanc, 992 F.2d at 396-98 (where crewmember slipped during his departure from the vessel after being fired but before receiving his share, court held that the unique circumstances of seamen justify the expansive protection beyond his termination, during a winding-up period).
Based on the foregoing Findings of Fact and application of the law thereto, the court hereby enters the following
CONCLUSIONS OF LAW
1. That the parties are properly before the court, have been properly designated, and there is no question of misjoinder or nonjoinder of the parties;
2. This court has jurisdiction of the subject matter and of the parties, although the defendants have objected to the court's conclusion concerning its personal jurisdiction over them;
3. At the time of his injury on or about July 14, 2002, the plaintiff, Windsor Young, was a "seaman";
4. The plaintiff, Windsor Young, has demonstrated that he is entitled to recover maintenance and cure from his employers, defendants Travis Dean Hair and wife, Michelle F. Hair, joint owners of the F/V "MM";
5. That the plaintiff, Windsor Young, is entitled to recover the sum of $30.00 per day for maintenance from July 15, 2002, the first full day after his injury, until December 2, 2002, the date of his maximum medical recovery (140 days), for a total of $4,200.00;
6. That the plaintiff, Windsor Young, is entitled to cure in the amount of $12,458.87, which represents the stipulated amount of his known medical bills incurred up to December 2, 2002, in the treatment of his injured knee, including post-operative therapy and medications, none of which has been paid by the defendants;
7. That the defendants' failure to pay maintenance and cure has been willful and arbitrary, and renders the defendants liable for payment of the plaintiff's reasonable attorney's fees;
8. The amount of reasonable attorney's fees for which the defendants are liable is $9,550.00;
The court concludes that, in light of plaintiff's counsel's experience and expertise, and the reasonable range of fees in the geographic locality and in the field of admiralty law, the hourly fee of $200 is appropriate. The court further has carefully reviewed counsel's Affidavit of Fees and Costs, has adjusted the hours expended to reflect what this court deems to be reasonable and appropriate in light of all the circumstances, resulting in a total of 47.74 hours. Therefore, the total amount of attorney's fees for which the defendants are liable is $9,550.00.
9. The amount of $1,060.76 in fees and costs advanced was necessary and reasonable in light of the duration and complexity of this litigation.
In light of the foregoing Findings of Fact and Conclusions of Law, it hereby is ORDERED that the Clerk of Court shall enter judgment herein for the plaintiff, Windsor Young and against the defendants Travis Dean Hair and wife, Michelle F. Hair:
a) in the sum of $4,200.00, which sum represents Young's entitlement to maintenance, as set forth herein, which shall be reduced by such sums as the defendants already have paid for maintenance pursuant to orders of this court;
b) in the sum of $12,458.87, which sum represents Young's entitlement to cure, as set forth herein;
c) in the sum of $10,610.76; which sum represents Young's entitlement to attorney's fees and costs incurred as a result of the defendants' willful and arbitrary refusal to pay maintenance and cure.
SO ORDERED.