Proper “daily rate” for injured seaman decided

Steamship Mutual’s Paul Brewer, Syndicate manager Americas Syndicate, has noted US legal case Sabow v. American Seafoods Company, USDC W.D. Wa. Case No. C16-0111-JCC, in which there was a dispute on the correct daily rate that should be paid to a seaman, injured during work.

Crewmember Rodwan Sabow suffered a back injury in February 2015 when working as a fish processor on-board an American Seafoods Company (ASC) vessel. Surgery was required and paid for by the employer, as was maintenance at the daily rate set out in his individual employment contract; this being $30 a day. When a seaman is injured in the service of the vessel it is the vessel owner’s duty to pay the seaman maintenance compensation, for room and board, along with cure payments for medical treatment necessary to restore the seaman to health.

The crewmember contended this rate did not cover his room and board expenses and requested an increase to $37.97 a day.

The request for an increased sum was rejected and resulted in Sabow filing suit; in response to which ASC made an application for declaratory relief on the issues of Jones Act negligence and unseaworthiness. Sabow argued that this application should be dismissed due to his right to have his maintenance claim heard separately and because of a seaman’s rights to choice-of-forum privilege. He had filed his maintenance and cure action in federal court but wanted to have the Jones Act and unseaworthiness counts heard in state court.

After deciding the standard of review to be applied to the pre-trial motion filed by ASC the court turned to the question of what a reasonable maintenance rate would be. Sabow argued that costs should be measured against the expense of lodging locally shoreside, whereas ASC argued that the measure should be the cost of living aboard ship. It has been traditionally accepted that a seaman is entitled to food and board of equivalent quality to that which he or she would have received onboard the ship.

Recently courts have recognized that it is impractical to base the maintenance rate compared to conditions on the ship and, in the 2001 case of Hall v Noble Drilling, Judge Robart held that, when determining the proper rate of maintenance, one should consider “what is reasonable in the seaman’s locale and not simply what

would cover the literal equivalent of conditions aboard the ship.” The court agreed that this was the proper method to be used to calculate a reasonable rate.

Having reached this conclusion the issue then became how to calculate what the rate should be.

Sabow provided evidence which demonstrated he was renting a one bedroom apartment at a cost of $800 a month, and that this was consistent with the average rental price for such a property in his area.

Sabow also supplied evidence of his monthly household expenses and food plan which was prima facie evidence that the request for a maintenance rate of $37.97 a day was reasonable.

ASC presented evidence to show that a rate of $30 was acceptable, but the court noted that it was not for the employer to show that the offered rate was reasonable, but rather that the amount claimed was unreasonable. Evidence of the availability of cheaper accommodation elsewhere was also deemed to be irrelevant on the basis that a crewmember need not find the cheapest accommodations but only needs to show that his accommodation was reasonable.

However the court declined to award attorney fees on the basis that, given the lack of clarity in the case law, they could not say that ASC’s actions were without good cause.