Ammar v. USA

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DMC/SandT/03/43
Garry Ammar v. United States of America
United States Court of Appeals for the Second Circuit: Judges: Van Graafeiland, Kearse and B.D. Parker, Jr.: 342 F.3d 133: August 29, 2003 
Jones Act: Unseaworthiness: Maintenance: Contributory Negligence: Assumption of Risk: Discounting Future Pecuniary Awards
Summary
On appeal, the United States Court of Appeals for the Second Circuit reversed a decision of the District Court for the Eastern District of New York, which in calculating a seafarer’s award of damages for personal injuries under the Jones Act, 46 U.S.C. 688, had:
a) determined that maintenance should be paid at a rate in excess of that applicable under the relevant collective bargaining agreement
b) refused to discount plaintiff’s future pecuniary damages, including future lost wages and future medical expenses, to present value.

DMC Category Rating: Developed

Facts/Background
The plaintiff, a seaman, and a member of the Seafarers International Union, claimed under the Jones Act, 46 U.S.C. 688 and the general maritime law doctrine of unseaworthiness for personal injuries sustained while he was working as a bosun aboard a U.S Naval Ship. However, the court of first instance, the District Court for the Eastern District of New York, found him 40% contributorily negligent and reduced his award accordingly. In calculating his award, the District Court, among other things, determined that he should be paid maintenance at US$18.00 per day, despite the fact that a collective bargaining agreement ("CBA") between his employer and his union set the rate at US$8.00 per day. Furthermore, the District Court declined to discount his future pecuniary damages, including future lost wages and future medical expenses, to present value.

The plaintiff appealed, contending the lower court erred in finding him contributorily negligent and for denying him recovery for certain medical bills. The Defendant, represented by Healy & Baillie, LLP, appealed the maintenance award, calculated at a rate in excess of the CBA prescribed rate, and the lower court’s failure to discount plaintiff’s economic damages to present value.

Judgment
As an initial matter, the Second Circuit upheld the lower court’s finding that Mr.Ammar, who was injured when he climbed onto the vessel’s starboard stores crane and stood on the crane’s pedestal to reach the crane’s controls when the remote control chestpak was inoperable, was 40% at fault for his accident inasmuch as he failed to employ a safer method, which he was familiar with, to access the controls. Despite plaintiff’s arguments that the District Court mistakenly applied principles of assumption of risk rather than contributory negligence, the Second Circuit held that because plaintiff did not merely accept a dangerous condition, but failed to adopt a safer course of action that was available and known to him, the District Court had properly applied the law.

As regards the proper rate for maintenance, the Second Circuit, persuaded by national labor policy considerations, upheld the CBA rate and noted, "by pooling their economic strength and acting through a labor organization freely chosen by the majority, the employees of an appropriate unit have the most effective means of bargaining for improvements in wages, hours and working conditions." Critically, the Second Circuit stated that because seamen have gained strength through their solidarity, "the need for judicial intervention to protect seamen has been substantially lessened." Indeed, because the CBA was a negotiated contract which by its very nature has give and take, the Second Circuit held that the maintenance provision could not be examined in isolation but had to be examined as a negotiated part of an overall benefits package available to all union members. Accordingly, because plaintiff did not allege, nor did the record indicate, that the collective bargaining process was unfair or that the maintenance provision was not a negotiated item, the Second Circuit did not sanction a unilateral rescission of the contracted rate by plaintiff.

Finally, the Second Circuit held that the district court should have discounted plaintiff’s award for future lost wages and medical expenses (also known as "cure") to present value. All such awards should account for the time value of money and failure to do so was error.

Accordingly, judgment was affirmed in part (contributory negligence) and set aside in part and remanded to the District Court for the judgment to be recalculated in accordance the findings of the appeal court.

Comment
Importantly, in its first pronouncement on the enforceability of a CBA prescribed maintenance rate, the Second Circuit disregarded the majority of District Court opinions within the Circuit and held that the lower court erred in awarding plaintiff maintenance in excess of the US$8 per day rate specified in the CBA. In so holding, the Second Circuit joined the majority of Circuits that have addressed this issue, i.e. the First, Fifth, Sixth, Ninth and Eleventh Circuits. The Third Circuit, encompassing New Jersey, Pennsylvania, Delaware and the U.S. Virgin Islands, is the anomaly, allowing a union seaman to prove maintenance expenses over and above the contracted CBA rate.

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