Hall v. Noble Drilling (U.S.) Inc. , 242 F.3d 582 ( 2001 )

Revised February 22, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60063
JAMES HALL,
Plaintiff-Appellee,
versus
NOBLE DRILLING (U.S.) INC.;
NOBLE DRILLING SERVICES, INC.,
Defendants-Appellants.
*****************************************************************
00-60065
CHARLES BYRON STUART,
Plaintiff-Appellee,
versus
NOBLE DRILLING (U.S.) INC.;
NOBLE DRILLING SERVICES, INC.,
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Mississippi
February 14, 2001
Before GARWOOD, HIGGINBOTHAM, and STEWART, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
This admiralty case involves the calculation of maintenance.
Plaintiffs James Hall and Charles Byron Stuart are seamen employed
by defendant Noble Drilling (U.S.) Inc. (“Noble”) who were injured
during their employment on offshore rigs. The district court
awarded maintenance of $30.50 to Stuart and $31.50 to Hall, based
in part on the costs of their shelter, homes that they share with
their families.
Noble argues that maintenance is provided solely for the
benefit of the seaman, and thus the maintenance rate should have
been reduced to reflect only the seaman’s pro rata portion of the
mortgage on the family home. We agree with Noble’s premise that
maintenance is provided solely for the benefit of the seaman, but
we reject Noble’s conclusion. In this case, the plaintiffs
actually paid their entire mortgages; they were obligated to pay
their entire mortgages; and their food and lodging expenses were
reasonable. We affirm the ruling of the district court.
I
Plaintiffs Charles Byron Stuart and James Hall are both seamen
employed by Noble Drilling (U.S.) Inc. Stuart lives in Petal,
Mississippi, with his wife and two young children. Hall lives in
Columbia, Mississippi, with his wife and adult son. Both live in
houses for which they pay mortgages.
Stuart was injured on October 3 or 4, 1998, while aboard the
Noble jack-up rig EDDIE PAUL. Hall was injured on February 7,
1999, while aboard the Noble jack-up rig M/V BILL JENNINGS. Noble
has paid them each $21 a day in maintenance.
Stuart and Hall brought suit in admiralty against Noble in May
and June, 1999, respectively. They made claims under the Jones Act
2
and the doctrines of unseaworthiness and maintenance and cure.
Hall and Stuart each sought an increase in their rate of
maintenance. The cases were consolidated, and trial on the issue
of the proper maintenance rates was held.
At trial, Stuart and Hall presented itemized lists of their
expenses, which included housing and food, telephone, satellite TV,
automobile, and other expenses. They also presented an expert
witness who described their expenses and provided national and
regional estimates of the cost of food and lodging. The food and
lodging estimates based on national statistics varied from $27.85
to $49.23 for a single person.1 Noble presented evidence of the
costs of various forms of lodging in the area and its own expert
witness, who concluded that $13.17 to $18.52 per day would provide
adequate maintenance.
Stuart claimed entitlement to $45.93 per day based on an
itemized list of his expenses. Of this figure, he claimed $14.24
for mortgage, escrow, and real estate insurance; $5.43 for
utilities; $9.47 for food;2 and $16.78 in telephone, cable TV,
house maintenance, and automobile expenses.3
1
Their estimates for local costs were based on unscientific surveys that
found average room and board costs of $28.72 to $56.62 in the Petal area and
$56.33 in the Columbia area.
2
This reflected only food purchased for his own consumption.
3
These numbers total to $45.92; the $45.93 figure may be due to
mathematical error.
3
Hall claimed entitlement to $51.45 per day based on a similar
list of expenses. He claimed $20.27 for mortgage, escrow, and real
estate insurance; $6.41 for utilities; $10.39 for food;4 $11.09 in
telephone, satellite TV, house maintenance, and automobile
expenses; and $3.29 for the prorated cost of some dental work.
The trial judge noted that maintenance does not provide for
expenses such as telephone or automobile bills or the costs of
supporting children. The judge then awarded Stuart a maintenance
rate of $30.50 per day and awarded Hall a maintenance rate of
$31.50 per day. Noble appealed.5 On appeal, Noble challenges the
amount of the maintenance awards.6 Noble’s primary argument is
that since Hall and Stuart live with their families, their lodging
expenses should be divided among the members of the household; the
maintenance awards, then, should only reflect Stuart’s and Hall’s
pro rata share of food and lodging expenses.
II
4
Like Stuart, Hall did not include food consumed by his family.
5
This is an interlocutory appeal brought under 28 U.S.C. § 1292(a)(3).
6
Noble does not argue that Stuart and Hall are not entitled to
maintenance. The parties agree that Stuart and Hall are seamen injured in the
service of vessels. See Caulfield v. AC & D Marine, Inc., 633 F.2d 1129, 1131
(5th Cir. Unit A 1981) (“A seaman who is injured or falls ill while he is in the
service of the ship is entitled to recover ‘maintenance’ from his employer or the
shipowner.”). No union contract specifying maintenance is at issue in this case.
Nor is cure an issue.
4
Maintenance and its counterpart, cure, have a venerable
history in the jurisprudence of admiralty,7 with origins at the
beginning of the last millennium.8 In the last century, American
courts have developed and expanded the right to maintenance and
cure, adapting it to the changing duties of seamen in modern
commerce. While centuries ago the typical seaman was a single
man—perhaps without a home—who spent most of his life at sea, today
the typical seaman may be someone very much like the plaintiffs in
this case: a worker on a floating rig who has a home and family and
spends significant stretches of time onshore.
This juxtaposition of the ancient right of maintenance,
protecting the “poor and friendless” seaman,9 with the cases of
modern seamen with families and mortgages is at the heart of this
case. Courts have long held that in providing maintenance the ship
owner must “furnish the seaman with food and lodging of the kind
7
This history is only briefly discussed here; other cases have studiously
expounded it. The seminal discussions in American law appear in Harden v.
Gordon, 11 F. Cas. 480 (C.C. Me. 1823) (No. 6,047), and The Osceola, 189 U.S. 158
(1903). An exceptional account of the history and law of maintenance and cure
appears in Hudspeth v. Atlantic & Gulf Stevedores, Inc., 266 F. Supp. 937 (E.D.
La. 1967). The ancient sea codes forming the historical foundation of
maintenance and cure are described in Martin J. Norris, 2 The Law of Seamen §
26:3-4 (4th Ed. 1985).
8
The antecedents to the medieval codes cited in The Osceola, 189 U.S. at
169, date back to at least the year 1010. See Martin J. Norris, 2 The Law of
Seamen § 26:3 at 5 n.4 (4th Ed. 1985).
9
Harden v. Gordon, 11 F. Cas. at 483.
5
and quality he would have received . . . aboard [the] ship.”10 Yet
in this appeal the parties focus their attention on Stuart’s and
Hall’s housing costs and the number of people in their families.
We examine the historical source of this incongruity and then turn
to the facts of this case.
A
1
The maritime doctrine of maintenance entitles a seaman injured
in the service of his ship to “food and lodging of the kind and
quality he would have received . . . aboard [the] ship.”11 This
articulation of the standard for the amount of maintenance
originated from the obligation of the shipowner to provide room and
board to seamen during the voyage.12 This equivalence between food
and lodging onshore and room and board during the voyage was
natural, given that American courts originally held that the
shipowner’s obligation to provide maintenance extended only to the
end of the voyage.13
10
Tate v. American Tugs, Inc., 634 F.2d 869, 871 (5th Cir. Unit A 1981);
see also Springborn v. American Commercial Barge Lines, Inc., 767 F.2d 89, 94
(5th Cir. 1985); Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 528 (1938).
11
Tate, 634 F.2d at 871.
12
The Bouker No. 2, 241 F. 831, 835 (2d Cir. 1917) (“By the custom of the
sea the hiring of sailors has for centuries included food and lodging at the
expense of the ship. This is their maintenance, and the origin of the word
indicates the kind and to a certain extent the quantum of assistance due the
sailor from his ship.”).
13
See Norris, 2 The Law of Seamen § 26:25 at 72 (collecting cases).
6
The logical foundation for this formulation has eroded,
however. By the turn of the last century, American courts had
embraced the rule that maintenance extends beyond the end of the
seaman’s voyage to the time of maximum cure.14 And in more recent
years courts have awarded maintenance and cure to seamen who have
no room or board on their vessels.15 Nonetheless, the notion that
the shipowner must provide the seaman with the equivalent of his
food and lodging on the ship remains the touchstone for calculating
maintenance.
The expansion in the last century of the scope of maintenance
has complicated the calculation of the appropriate rate of
maintenance. Most obviously, seamen with no food or lodging on
board their vessels cannot compare their shoreside accommodations
to quarters that don’t exist. But the determination of maintenance
is also complicated by the fact that little, if any, lodging on
land is truly equivalent to quarters on a vessel; that, as in this
case, some seamen have existing accommodations on land; and that,
as a practical matter, seamen have historically lacked the
14
Courts in this circuit recognized this rule as early as 1887. See The
Lizzie Frank, 31 F. 477, 481 (S.D. Ala. 1887). The seminal case is The Bouker
No. 2, 241 F. 831 (2d Cir. 1917), which thoroughly reviews prior authority. The
Supreme Court endorsed the modern rule in Calmar S.S. Corp., 303 U.S. at 529.
15
See Barnes v. Andover Co., 900 F.2d 630, 640-44 (3d Cir. 1990);
Hudspeth v. Atlantic & Gulf Stevedores, Inc., 266 F. Supp. 937, 943 (E.D. La.
1967).
7
resources to present detailed proof in suits for maintenance and
cure.16
Understanding these practical and conceptual difficulties,
courts have not required literal equivalence of facilities onshore
and in the vessel. Instead, the reference to a seaman’s shipboard
food and lodging serves to define the amount of maintenance as no
more and no less than the reasonable costs of subsistence the
seaman has incurred while recuperating on land.17 This breaks down
into two components: the reasonable cost of food and lodging for a
seaman living alone, and the actual expenses for food and lodging
that the seaman has incurred. We address courts’ treatment of
these components of the maintenance calculation in turn.
2
A seaman is entitled to the reasonable cost of food and
lodging, provided he has incurred the expense. Proving reasonable
costs admits of many forms of proof. Courts allow proof of the
seaman’s actual expenditures and expert testimony about the cost of
16
The expense of litigation to recover what may be mere dollars a day may
limit the ability of seamen to offer elaborate proof. See Yelverton v. Mobile
Laboratories, Inc., 782 F.2d 555, 558 (5th Cir. 1986) (noting that “the evidence
before the court often consists solely of the seaman’s testimony”); see also
Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 528-29 (1938) (describing seamen as
“poor, friendless and improvident . . . [and who may] be left helpless and
uncared for in a foreign port” and stating that seamen are the wards of
admiralty).
17
While “food” is self-explanatory, lodging requires definition.
“Lodging” includes expenses “necessary to the provision of habitable housing,”
such as heat, electricity, home insurance, and real estate taxes. See Gillikin
v. United States, 764 F. Supp. 270, 273 (E.D. N.Y. 1991). Other expenses, such
as telephone service, clothing, toiletries, and travel, are not part of
maintenance. See id.; Smith v. Delaware Bay Launch Serv., Inc., 972 F. Supp.
836, 849 (D. Del. 1997).
8
living in the area of the seaman’s residence.18 Courts also allow
evidence of maintenance rates negotiated by unions,19 per diem
allowances for seamen in port when the vessel’s facilities are
unavailable,20 and, of course, the cost of food and lodging
equivalent to food and lodging on the vessel, if such exist on
land. The use of evidence of actual expenses should not obscure
the fact that this evidence is offered to prove not only actual,
but also reasonable expenses. Thus, maintenance awards should
depend on the reasonable cost of food and lodging for a seaman
living alone in the seaman’s locality.21
Since the reasonable cost of food and lodging for a single
seaman in an area is an objective standard, “the rate at which
maintenance is paid tends to become standardized to reflect the
costs of food and lodging in a particular area.”22 The historical
tendency towards uniform rates of maintenance has simplified
18
In fact, exclusion of such evidence is reversible error. See McWilliams
v. Texaco, Inc., 781 F.2d 514, 517 (5th Cir. 1986) (holding that it is error to
exclude evidence of plaintiff’s expenses or of the costs of living in the
locality); Curry v. Fluor Drilling Serv., Inc., 715 F.2d 893, 896 (5th Cir. 1983)
(stating that the seaman’s prima facie case is proving “the actual living
expenditures which he found necessary to incur during his convalescence”).
19
See Hudspeth v. Atlantic & Gulf Stevedores, Inc., 266 F. Supp. 937, 944
(E.D. La. 1967).
20
See Harper v. Zapata Off-Shore Co., 741 F.2d 87, 91 (5th Cir. 1984).
21
Thus, the expenses of seaman not living alone usually are of little
relevance to determining the reasonable amount of maintenance.
22
Caulfield v. AC & D Marine, Inc., 633 F.2d 1129, 1132 (5th Cir. Unit A
1981); see also Yelverton, 782 F.2d at 558; Harper, 741 F.2d at 91 (describing
the $8 rate as “entrenched” in past years “as the standard figure” but
“unquestionably low”).
9
litigation over the reasonable amount of maintenance to the benefit
of both shipowner and seaman. Standard rates of maintenance
protect the seaman’s interest in recovering maintenance without
great delay or expense and without disparities between seamen; and
it protects the shipowner’s interest in predictable obligations and
reduced litigation. Uniform rates also reduce the decision costs
of courts and the impact of maintenance litigation on the docket.
3
We have consistently held that “one who has not paid his own
expenses . . . cannot recover maintenance and cure from the ship
owner.”23 Courts have treated maintenance not as a payment owed
from shipowner to seaman, but as an obligation of the shipowner to
ensure that the seaman can afford food and lodging. Thus, the
shipowner is obligated to pay the seaman no more than the seaman
actually spends to obtain reasonable food and lodging.24 If the
seaman’s food and lodging are both reasonable in quality and free,
he is entitled to no maintenance from the shipowner.
However, if the seaman’s actual expenses are not sufficient to
afford him food and lodging that are reasonably adequate, the court
23
Marine Drilling, Inc. v. Landry, 302 F.2d 127, 128 (5th Cir. 1962) (per
curiam). The seminal case is Field v. Waterman S.S. Corp., 104 F.2d 849, 851
(5th Cir. 1939). The Supreme Court has followed Field. See Johnson v. United
States, 333 U.S. 46, 50 (1948).
24
If the seaman presents evidence that he paid for food, but no evidence
that he paid for lodging, a maintenance award may cover food expenses but not
lodging. Harper v. Zapata Off-Shore Co., 741 F.2d 87, 91 (5th Cir. 1984)
(reversing award of maintenance because plaintiff presented no evidence of
housing expenses).
10
should award maintenance sufficient to provide reasonable food and
lodging, even if the award exceeds the seaman’s actual costs.25
Also, when the seaman has made “an expressed intention” to pay for
lodging and food, even if the obligation is not legally
enforceable, the seaman may recover maintenance.26 The burden of
producing evidence of expenses is “feather light,” and a court may
award reasonable expenses, even if the precise amount of actual
expenses is not conclusively proved.27
More recently, shipowners have argued that a seaman’s food and
lodging expenses should be prorated when a seaman lives with his
family. Since maintenance provides only for the expenses of the
seaman, the expenses of the seaman’s spouse or children are not
properly included in maintenance. Thus, a seaman may only present
evidence of expenditures on food eaten by himself. If division of
family food expenses is difficult, prorating the costs is an
appropriate method of estimation.28
25
See McWilliams v. Texaco, Inc., 781 F.2d 514, 517-18 (5th Cir. 1986)
(“Actual expenses do not always provide a satisfactory benchmark, because in many
cases a seaman may not have sufficient funds to obtain the kind of maintenance
which the law provides him.”).
26
McCormick Shipping Corp. v. Duvalier, 311 F.2d 933, 933 (5th Cir. 1963)
(per curiam).
27
See Yelverton, 782 F.2d at 558 (“A seaman’s burden of production in
establishing the value of maintenance is feather light: his own testimony as to
reasonable cost of room and board in the community where he is living is
sufficient to support an award. Because the evidence before the court often
consists solely of the seaman’s testimony, it is common for courts to award a
standard per diem.”) (citation omitted).
28
See Gillikin, 764 F. Supp. at 272; see also Barnes v. Andover Co., 900
F.2d 630, 644 (3d Cir. 1990); Ritchie v. Grimm, 724 F. Supp. 59, 61 (E.D. N.Y.
1989). While Gillikin also concludes that fixed lodging expenses should be
11
Lodging costs present a more difficult question that has not
been addressed by this circuit. In this appeal, Noble argues that
since three or four people living together can live more cheaply
than three or four people each living alone, maintenance should
cover only a seaman’s pro rata share of his lodging expenses when
he lives with his family. This argument misunderstands
maintenance.
A seaman is entitled to the reasonable cost of food and
lodging in his locality, provided that he actually spends that
amount on his upkeep. If the seaman spends less than that amount,
the seaman may recover his actual expenses. A seaman who pays for
the rent or mortgage of a home he shares with his family actually
spends out-of-pocket the entire amount.29 He cannot pay any less
without losing his home.30 If a seaman would incur the lodging
expenses of the home even if living alone, then the entire lodging
expense represents the seaman’s actual expenses.31
prorated, 764 F. Supp. at 275, Ritchie does not. 724 F. Supp. at 61 (“[T]he
Court holds that the proper amount of maintenance should include the total cost
of rent for [the seaman’s] apartment as well as his share of food and other
costs.”).
29
As we have noted above, a seaman may recover for expenses he is
obligated to pay or has promised to pay. See McCormick Shipping Corp. v.
Duvalier, 311 F.2d 933, 933 (5th Cir. 1963) (per curiam). A seaman who pays for
his rent or mortgage is obligated to pay the rent or mortgage regardless of the
number of people living with him.
30
Of course, if the seaman does not pay for the entire amount of the
lodging costs, the seaman cannot recover for the entire amount, regardless of
whether he lives alone.
31
Costs of heat, electricity, and water, to the extent such expenses vary
with the number of people in the household, can be prorated. But to the extent
that additional family members do not increase a seaman’s expenses, proration
12
Thus, the non-prorated amount a seaman spends on his home is
his actual cost of lodging. Noble is obviously correct that a
house for two or four or ten may be much more than the seaman needs
for himself alone, and the mortgage for such a house will surely
cost more than he needs to spend. But this argument concerns
whether the seaman’s expenses are reasonable, not whether the
seaman actually spends that money on his home. If the seaman’s
expenditures exceed the reasonable amount, the seaman is entitled
only to the reasonable amount that a single seaman must spend.
Reasonableness, not proration, is the proper limit on
maintenance awards for seamen living with their families. The
concern motivating proration is that a seaman with a large house
for his family should not be reimbursed for the cost of a home so
far in excess of his individual needs. But the requirement that
maintenance be limited to the reasonable expenses of a single
seaman dispenses with this concern.
Proration punishes a seaman for his thrift. If a seaman rents
a one-bedroom apartment for a reasonable amount, he is certainly
entitled to reimbursement for all of his actual lodging expenses,
since this is modest for even a single person. But under Noble’s
logic, if this seaman had a spouse, or a spouse and child, he would
receive only half or a third of what a reasonable person living
alone is entitled to. But a seaman who buys a very large house
would not be appropriate. For example, the costs of heating a home may be lower
when more people occupy the same space.
13
will receive all of what a reasonable person living alone is
entitled to, since his costs, even after proration, will exceed the
reasonable amount.
Proration also introduces excessive conceptual complexity into
a remedy that courts have striven to keep simple.32 And requiring
proration would spawn curious results. If seaman has a child
during the course of his recovery, would his maintenance decrease?
In what sense would his own costs of food and lodging have
decreased? If a seaman’s family leaves during his convalescence,
should his maintenance rise? Have his lodging expenses changed?
Should two seaman, both injured in the service of the same vessel,
living in identical houses and eating the same food, receive
different maintenance because one has more children?
4
Thus: A plaintiff who is a seaman injured while in the service
of a vessel is entitled to maintenance if he incurred the costs of
food and lodging during that period. The plaintiff must present
evidence to the court that is sufficient to provide an evidentiary
basis for the court to estimate his actual costs. If the plaintiff
presents no evidence of actual expenses, the plaintiff may not
32
As the Supreme Court has noted, the treatment of maintenance by the
courts has historically served these interests: “It 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. It has few exceptions or conditions to stir contentions, cause
delays, and invite litigations.” Farrell v. United States, 336 U.S. 511, 516
(1949).
14
recover maintenance. Otherwise, the court must determine the
maintenance award. This involves three steps.
First, the court must estimate two amounts: the plaintiff
seaman’s actual costs of food and lodging; and the reasonable cost
of food and lodging for a single seaman in the locality of the
plaintiff. In determining the reasonable costs of food and
lodging, the court may consider evidence in the form of the
seaman’s actual costs, evidence of reasonable costs in the locality
or region, union contracts stipulating a rate of maintenance or per
diem payments for shoreside food or lodging while in the service of
a vessel, and maintenance rates awarded in other cases for seamen
in the same region. A seaman need not present evidence of the
reasonable rate; a court may take judicial notice of the prevailing
rate in the district.33
Second, the court must compare the seaman’s actual expenses to
reasonable expenses. If actual expenses exceed reasonable
expenses, the court should award reasonable expenses. Otherwise,
the court should award actual expenses. Thus, the general rule is
that seamen are entitled to maintenance in the amount of their
actual expenses on food and lodging up to the reasonable amount for
their locality.
33
See, e.g., Duplantis v. Williams-McWilliams Industries, Inc., 298 F.
Supp. 13 (E.D. La. 1969), where the court relied on judicial notice of union
contracts and other cases to find that $8 per day was a reasonable rate of
maintenance. See id. at 16.
15
Third, there is one exception to this rule that the court must
consider. If the court concludes that the plaintiff’s actual
expenses were inadequate to provide him with reasonable food and
lodging, the plaintiff is entitled to the amount that the court has
determined is the reasonable cost of food and lodging.34 This
insures that the plaintiff’s inability to pay for food and lodging
in the absence of maintenance payments does not prevent him from
recovering enough to afford himself reasonable sustenance and
shelter.
B
We now turn to the maintenance awards that are the subject of
this appeal. Determination of the amount of maintenance is a
factual question reviewed under the “clearly erroneous” standard.
“A maintenance award will be upheld as long as there is an
evidentiary basis for the district court’s finding.”35 Stuart and
Hall had to provide evidence of their actual expenses on food and
lodging sufficient to constitute an evidentiary basis for the
court’s awards of maintenance. They did so.
First, there is an evidentiary basis for the district court to
have concluded that Stuart’s actual maintenance expenses were
approximately $30.50 per day, and that Hall’s actual maintenance
expenses were at least $31.50 per day. The total of Stuart’s
34
See McWilliams v. Texaco, Inc., 781 F.2d 514, 517-18 (5th Cir. 1986).
35
Curry v. Fluor Drilling Serv., Inc., 715 F.2d 893, 896 (5th Cir. 1983);
see also Wood v. Diamond M Drilling Co., 691 F.2d 1165, 1171 (5th Cir. 1982).
16
maintenance expenses—mortgage, escrow, real estate insurance,
utilities, and food—that Stuart claimed and supported by evidence
is $29.14 per day. The total maintenance expenses claimed and
supported by Hall is $37.07 per day.
Noble challenges these figures because they are based on their
total mortgage payments and argues that the lodging costs should be
prorated. Proration is not appropriate in this case. Stuart and
Hall have each individually promised (both to their banks and to
their families) to pay their entire mortgages. They offered
evidence to show that they paid their entire mortgages themselves.
If they had paid any less, they would have had to have found new
places to live. Thus, their entire mortgage payments are necessary
for their continued shelter in their homes.
Second, there is an evidentiary basis for the district court’s
conclusion that awards of $30.50 and $31.50 per day do not exceed
the reasonable amount a single seaman would spend on food and
lodging. The local and national figures for the cost of food and
lodging offered by Stuart and Hall ranged from $27.85 to $49.23 per
day for a person living alone.
Third, this is not the exceptional case where a seaman’s
expenditures were inadequate to provide him reasonable food and
lodging.
Thus, the evidence supports the awards of maintenance. We
find no error in the maintenance awards.
C
17
At oral argument, counsel for Noble invited this court to
announce a standardized rate of maintenance. As noted above,
maintenance awards were quite uniform in the past. From the late
1940s until the 1970s, that rate was usually $8.36 Courts and
commentators began to recognize that as prices rose, the value of
this standard rate eroded.37 In the late 1970s and 1980s, courts
observing this phenomenon began to adjust the standard rate upward
to reflect inflation.38 In the late 1970s and early 1980s, this
circuit affirmed awards of $15,39 $20,40 and $30.41 Since that time,
36
See Caulfield v. AC & D Marine, Inc., 633 F.2d 1129, 1132 (5th Cir.
Unit A 1981). For an exhaustive list of maintenance awards from the 1920s
through the 1990s, see Martin J. Norris, 2 The Law of Seamen § 26:70 (4th Ed.
1985 & Supp 2000).
37
See Morel v. Sabine Towing & Transp. Co., 669 F.2d 345, 347 (5th Cir.
1982); Caulfield, 633 F.2d at 1132; G. Gilmore & C. Black, The Law of Admiralty
§ 6-12 (2d ed. 1975); Norris, 2 The Law of Seamen § 26:70 at 174; Eugene A.
Brodsky & Karen M. Houston, From Subsistence to Starvation: A Call for Judicial
Reexamination of Gardiner v. Sea Land Service, Inc., 9 U.S.F. Mar. L.J. 71, 81
(Fall 1996).
38
The development of this trend is described in Comment, Around the World
on Eight Dollars a Day: The Binding Effect of Maintenance Rate Provisions in
Collective Bargaining Agreements, 18 Tul. Mar. L.J. 317, 330-32 (Summer 1994).
39
See Caulfield, 633 F.2d at 1132; see also Robinson v. Plimsoll Marine,
Inc., 460 F. Supp. 949, 950 (E.D. La. 1978).
40
Morel, 669 F.2d at 347.
41
See Wood v. Diamond M Drilling Co., 691 F.2d 1165, 1171 (5th Cir. 1982).
18
similar awards have been typical in this circuit.42 Several cases
have identified the trend.43
This trend has approximately compensated for the impact of
inflation on the seaman’s buying power. Once inflation is taken
into account, the awards to Hall and Stuart are equivalent to the
awards of $6 or $8 a day in the 1960s44 and to the awards of $15 or
$20 a day in the late 1970s and early 1980s.45
42
See Norris, 2 The Law of Seamen § 26:70 at Supp 61 and cases cited
therein. In 1981, the Second Circuit ordered an award of $26.80 per day to a
seaman living in New York, where the cost of living is higher. See Incandela v.
American Dredging Co., 659 F.2d 11, 14 (2d Cir. 1981) (reversing $13.50 per day
award and awarding $26.80 per day). In 1990, the Second Circuit affirmed an
award of $45 per day for a seaman in New York City. See Rodriguez Alvarez v.
Bahama Cruise Line, Inc., 898 F.2d 312, 314-15 (2d Cir. 1990).
43
See Barnes v. Andover Co., 900 F.2d 630, 635-37 (3d Cir. 1990)
(identifying trend and noting that $8 a day in 1952 was worth $32.24 in 1985);
Morel, 669 F.2d at 347; Incandela, 659 F.2d at 14; Caulfield, 633 F.2d at 1132;
Robinson, 460 F. Supp. at 950; see also Harper v. Zapata Off-Shore Co., 563 F.
Supp. 576, 584 & n.4 (E.D. La. 1983) (holding that jury award of $40 per day in
maintenance is not excessive and noting that $40 per day is the “rough
equivalent” of the $8 per day rate prevailing in 1945), rev’d on other grounds,
741 F.2d 47 (5th Cir. 1984). In the early 1980s, the Western District of
Louisiana would award $15 per day in maintenance, absent contrary proof. See
Curry v. Fluor Drilling Serv., Inc., 715 F.2d 893, 896 (5th Cir. 1983) (Tate, J.,
specially concurring).
44
In 1999 dollars (the district court in this case rendered its judgment
in 1999), the $6 per day award in Hudspeth v. Atlantic & Gulf Stevedores, Inc.,
266 F. Supp. at 945 (awarded in 1967), is approximately $29.95 per day; the $8
per day award in Duplantis v. Williams-McWilliams Industries, Inc., 298 F. Supp.
at 16 (awarded in 1969), is about $36.34 per day. See U.S. Dep’t of Labor,
Bureau of Labor Statistics, Consumer Price Index for All Urban Consumers: All
Items. This comparison is not perfect, however, because the consumer price index
reflects changes in the cost of living nationally rather than locally; also,
Hudspeth and Duplantis arose out of Louisiana, not Mississippi.
45
In 1999 dollars, the $15 per day award in Robinson, 460 F. Supp. at 950
(awarded in 1978), is about $38.35 per day; the $20 per day award affirmed in
Morel, 669 F.2d at 347-48 (awarded in 1981), is approximately $36.68 per day.
See U.S. Dep’t of Labor, Bureau of Labor Statistics, Consumer Price Index for All
Urban Consumers: All Items. Like Hudspeth and Duplantis, Morel and Robinson
arose out of Louisiana.
19
Awarding a standardized rate of maintenance is appropriate as
long as the seaman provides evidence that his actual expenses meet
or exceed the standard, reasonable amount. And while we note that
the maintenance awards in this case are consistent with the
historical trend in standard maintenance rates, we cannot prescribe
one of those awards (or any other amount) as a proper standard for
the reasonable amount of maintenance. Sitting as a court of
review, we do not have the competence to determine the factual
question of what the standard amount should be for any part of this
circuit. Determining what amount of maintenance is reasonable is
a duty invested in the district courts of this circuit, sitting as
finders of fact. We today affirm the propriety of developing
standard rates of maintenance, but leave that task to the district
courts of this circuit.46
III
We find no error in the district court’s awards of
maintenance. The district court’s judgments are AFFIRMED.
46
We offer only the admonishment that uniform maintenance awards require
that courts take account of changes in the cost of living over time and between
localities.
20