Page 20: of Marine News Magazine (July 2011)

20MNJuly 2011LEGAL the seamans requested $40/day maintenance rate reason- able, and since the seamans actual expenses did not exceed reasonable expenses, it held the seaman was entitled to a $40/day maintenance rate.Finally, the Court described how an employer is liable for punitive damages and the seamans attorneys fees if its failure to pay maintenance and cure is callous and recal- citrant, arbitrary and capricious, or willful, callous, and persistent.? The Court found this employer arbitrary and capricious in failing to pay a reasonable maintenance rate, a rate which was standard in the late 1970s and early 1980s. While conceding the employer may have legiti- mately questioned the seamans claimed $40/day rate, the Court wrote the employer offers no evidence whatsoever? to show the rate it is currently paying, $15.00 per day, is currently reasonable. In fact,? the Court wrote, the minimum reasonable rate for a seaman in plaintiff's local- ity based purely on the defendants figures - $11.00 per day for food, $11.00 per day for rent ($330 prorated over 30 days), and no allotment for utilities - would be $22.00per day, nearly 50% more than what defendant actually paid plaintiff.? The Court went on to find the employer unjustified in making maintenance payments at a rate that was standard thirty years ago,? and the seaman enti- tled to attorneys fees occasioned by the underpayment of maintenance.?Fred Goldsmith, licensed to practice law in Pennsylvania, West Virginia, and Ohio, focuses on admiralty & maritime, railroad, oilfield, personal injury and death, motorcycle, and insurance coverage litigation with Pittsburgh-based Goldsmith & Ogrodowski, LLC (www.golawllc.com). You can reach him at [email protected] or (877) 404-6529. In the recently-decided case of Borders v. Abdon Callais Offshore, LLC, Judge Lance M. Africk of the U.S. District Court for the Eastern District of Louisiana held the employer acted arbitrarily and capriciously in paying its injured seaman a standard maintenance rate of $15.00/day, a rate the Court found was standard in the 1970s and early 1980s. The Court awarded the seaman a $40.00/day maintenance rate, retroactively, and also his attorney?s fees for his efforts in securing the higher rate.