DANIELS v. STANDARD MARINE TRANSPORT SERVICE INC (1998)

Order entered January 22, 1997 (Marilyn Shafer, J.) affirmed with $10 costs.

 Plaintiff Howard Daniels, a seaman, commenced this action to recover compensatory damages under the Jones Act (46 USC, Appendix § 688) and maintenance and cure for injuries sustained on board the defendants' vessel.   The narrow issue framed for review is raised by plaintiff's argument that the daily maintenance rate of $8 specified in his collective bargaining agreement and paid to him while he was unable to work was insufficient to fulfill its purpose of providing a seaman with food and lodging comparable to that aboard ship.   We agree that the nominal maintenance rate fixed in the collective bargaining agreement impermissibly abrogates the right to maintenance, and thus sustain Civil Court's grant of partial summary judgment to plaintiff on the maintenance issue.

 A shipowner's obligation to provide maintenance is deeply rooted in the general maritime law and is “a duty that no private agreement is competent to abrogate.”  De Zon v. American President Lines, 318 U.S. 660, 667, 63 S.Ct. 814, 87 L.Ed. 1065, reh. denied 319 U.S. 780, 63 S.Ct. 1025, 87 L.Ed. 1725.   Liability for maintenance is “not to be defeated by restrictive distinctions nor ‘narrowly confined’ ” (Vaughan v. Atkinson, 369 U.S. 527, 532, 82 S.Ct. 997, 8 L.Ed.2d 88, quoting Aguilar v. Standard Oil Co., 318 U.S. 724, 735, 63 S.Ct. 930, 87 L.Ed. 1107), and any ambiguities or doubts on issues of maintenance are to be resolved in favor of the seaman.   (Id.) To fulfill its principal purposes of assuring the well-being of seamen and promoting marine commerce (Vella v. Ford Motor Co., 421 U.S. 1, 3-4, 95 S.Ct. 1381, 43 L.Ed.2d 682), the rate of maintenance should be set at a level sufficient to provide an injured seaman with food and lodging of the kind and quality received aboard ship (Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 58 S.Ct. 651, 82 L.Ed. 993).

Notwithstanding the salutary goals and broad reach of maintenance in maritime law, four Federal Circuit Courts have upheld collective bargaining agreements limiting the daily rate of maintenance at $8, even though that amount is now widely recognized as inadequate to provide a living allowance during the sailor's recovery period (see, Gardiner v. Sea-Land Serv., Inc., 786 F.2d 943 [9th Cir.], cert. denied 479 U.S. 924, 107 S.Ct. 331, 93 L.Ed.2d 303;  Macedo v. F/V PAUL AND MICHELLE, 868 F.2d 519 [1st Cir.];  Al-Zawkari v. American S.S. Co., 871 F.2d 585 [6th Cir.];  Baldassaro v. United States, 64 F.3d 206 [5th Cir.]). This line of cases flows from the Ninth Circuit's decision in Gardiner v. Sea-Land Service, Inc., 786 F.2d 943, supra, in which a divided panel concluded that adherence to national labor policy justified enforcement of the maintenance rate specified in a collective bargaining agreement, at least where the agreement as a whole is not “unfair or inadequate” and the maintenance rate is part of a total benefits package resulting from “real bargaining” (at 949).

The Third Circuit has sailed a different course, however, holding that “a union cannot bargain away the individual seaman's common law right to maintenance by agreeing to a wholly inadequate figure as a daily maintenance rate.”  (Barnes v. Andover Co., L.P., 900 F.2d 630, 640).   The Barnes court pointed to the fundamental inconsistency between the Supreme Court's well-established rule prohibiting a shipowner from completely abrogating maintenance by contract and the adoption of a rule recognizing contractual rates of maintenance that are so inadequate as to be tantamount to abrogation (Barnes v. Andover Co., L.P., supra, 900 F.2d, at 637).   The Barnes court concluded that any departure from the traditional scope of maintenance, even to accommodate national labor policy, must be made by Congress rather than by the court.  (Id., at 644.)

Although no reported decision of the Second Circuit has addressed this precise issue, that court has noted in a case involving a nonunion seaman that a fixed maintenance rate of $8 per day “stands as a symbolic but unfulfilled promise to seamen that their maintenance needs will be met.”  (Incandela v. American Dredging Co., 659 F.2d 11, 14).   Further, several Federal District Courts in New York have followed Barnes in holding that an injured seaman is not bound by the $8 per diem maintenance rate provided for in a collective bargaining agreement (see, McMillan v. Tug Jane A. Bouchard, 885 F.Supp. 452;  Brown v. United States, 882 F.Supp. 1424;  Gillikin v. United States, 764 F.Supp. 261;  Covella v. Buchanan Marine, Inc., 1996 WL 164482 [SDNY, April 9, 1996];  cf., Dixon v. Maritime Overseas Corp., 490 F.Supp. 1191, affd. without opn. 646 F.2d 560, cert. denied 454 U.S. 838, 102 S.Ct. 145, 70 L.Ed.2d 120).   We find this view to be more persuasive, and hold that the provision in the collective bargaining agreement limiting plaintiff to an $8 daily maintenance rate, without the opportunity to seek maintenance based on actual food and lodging expenses, abrogates the right to maintenance and is unenforceable.

To the extent that Holness v. Maritime Overseas Corp., 174 Misc.2d 626, 665 N.Y.S.2d 1013, is to the contrary, we need not and do not follow it.

PER CURIAM.