Fishing Company Makes ‘Home Invasion’ Motion

By John Merriam

Celso Tubera injured both knees aboard the American Seafoods factory trawler Northern Jaeger. A native of the Philippines, Mr. Tubera lives with his wife and children in Marysville, Washington when not working as a processor at sea.

American Seafoods includes in their contracts of employment a clause that limits maintenance to $25 per day, regardless of the actual living expenses incurred by injured employees. Mr. Tubera needs about $60 per day to pay the mortgage, utilities and pro rata share of food.

Unable to live on $25 per day, Mr. Tubera retained a lawyer. Suit was filed in federal court and the case assigned to Judge Pechman.

Apparently deciding that ‘the best defense is a good offense’, counsel for American Seafoods filed a motion, “for an order compelling production of plaintiff Celso Tubera’s home pursuant to Federal Rules of Civil Procedure 34 and 37(a)(2)(B)”. The fishing company wanted “to establish that the cost of maintaining Tubera’s onshore lifestyle is not coextensive with the cost of providing Tubera (with room and meals aboard the vessel)”. Defendant argued that Celso Tubera’s house in Marysville was “less Spartan” than his quarters aboard the Northern Jaeger. American Seafoods wanted to, “inspect, photograph and measure” Tubera’s residence as directly relevant to his entitlement to maintenance.

Plaintiff styled his response as: “Opposition to Defendants’ FRCP 34 Home Invasion Motion”. Plaintiff opposed the motion on privacy grounds:

Celso Tubera lives with his wife and kids in Marysville. He does not need a bunch of fishing company goons barging into his house with cameras and tape measures.

Memorandum in Opposition.

Rates of maintenance contained in individual contracts of employment, as opposed to collective bargaining agreements, are not necessarily binding as a matter of law. See, Rowell v. Tyson, 1999 A.M.C. 2277 (W.D. Wash 1999). Rather, injured seamen are entitled to maintenance sufficient to cover, “the reasonable cost of food and lodging comparable to that received aboard the vessel.” Schoenbaum, Admiralty and Maritime Law, § 6-32 (4th ed 2004).

Counsel for the plaintiff offered to stipulate that Mr. Tubera’s house in Marysville was larger and more comfortable than the quarters he received aboard the Northern Jaeger. If that were not sufficient, counsel for the plaintiff additionally offered to provide measurements and photographs because opposing counsel apparently thought that necessary for his case. That was not acceptable to defense counsel, who insisted on a physical inspection of Mr. Tubera’s house, notwithstanding Tubera’s objections about invasion of privacy.

Plaintiff conceded that Mr. Tubera’s house is nicer than a fo’c’sle aboard a vessel. But that is not the point. Comparing a house in the suburbs to a seaman’s fo’c’sle is to compare apples and oranges. The test is: What are “reasonable” expenditures for food and lodging ashore? Hall v. Noble Drilling (U.S.) Inc., 242 F.3d 582 (5th Cir. 2001). “The amount of maintenance is a factual determination based upon evidence of a seaman’s actual expenditures for food and lodging.” Schoenbaum, supra (emphasis added).

What is “reasonable”? Plaintiff suggests that it is not reasonable to reimburse a recuperating seaman for staying in the Westin Hotel. Nor is it reasonable to expect that recuperating seaman to live under the Alaskan Way Viaduct. See, Charles Davis, Maritime Law Deskbook, pp. 165-167 (2005). Plaintiff argued that it is also unreasonable to force an injured seaman to default on his mortgage, as the result of injury, after the shipowner arbitrarily sets maintenance at $25 per day.

A seaman who pays for the rent or mortgage of a home he shares with his family actually spends out-of-pocket for the entire amount. He cannot pay any less without losing his home. If that seaman would incur the lodging expenses of the home, even if living alone, then the entire lodging costs represent the seaman’s actual expenses.

The non-prorated amount a seaman spends on his home is his actual cost of lodging. A house that accommodated more than one person may cost much more than the seaman needs for himself alone. This consideration, however, goes to whether the seaman’s expenses are reasonable.

Force and Norris, The Law of Seamen § 26:27 (5th ed. 2003).

Plaintiff conceded that it cost more for Mr. Tubera to live ashore than it did at sea. The difference in accommodation provided at sea and ashore is but one factor among many in determining reasonableness. Why, plaintiff argued, should the defendants be allowed to barge into Tubera’s house?

Judge Pechman granted only that part of defendant’s motion that plaintiff had offered to stipulate to. She refused to order that Mr. Tubera allow representatives of the fishing company into his house, but gave him 10 days to produce measurements and photographs for the fishing company that demonstrated his lifestyle at home. Judge Pechman also admonished the undersigned:

Finally, Plaintiff’s counsel is cautioned that his reference to Defendants as “a bunch of fishing company goons” is highly inappropriate.

Order of March 16, 2006.

The case is Tubera v. American Seafoods, et al, No. C05-1688P (W.D. Wash. 2006). Plaintiff is represented by John Merriam. Defendants are represented by Eric McVittie of LeGros Buchanan & Paul.

Eagle John Merriam is a former merchant seaman who now restricts his practice to the representation of plaintiffs on maritime wage and injury claims.