                                                                   [ PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________

                                No. 96-5158
                        ________________________
                     D. C. Docket No. 95-632-CV-KMM

HUSEYIN AKSOY,

                                                            Plaintiff-Appellant,

                                   versus

APOLLO SHIP CHANDLERS, INC., OCEAN SHIP
SERVICES LIMITED,

                                                         Defendants-Appellees.

                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                              (March 27, 1998)


Before COX and CARNES, Circuit Judges, and FAY, Senior Circuit Judge.

PER CURIAM:
      Huseyin Aksoy (“Aksoy”) appeals the district court’s grant of summary

judgment in favor of Apollo Ship Chandlers, Inc. and Ocean Ship services, Ltd.

(“Apollo”). We vacate and remand.

                               I. BACKGROUND

      Aksoy is a seaman and was employed by Apollo as an assistant wine steward

aboard one of its vessels. Aksoy signed an employment contract with Apollo, which

provided in pertinent part:

      As a “Tipping Employee” the Employer guarantees you a total monthly
      income inclusive of gratuities of $ 503 (as per contract wages, $ 155
      which include basic wages, . . . gratuities guarantee $ 348), while the
      vessel is sailing with passengers.

(R.1-73-Ex. A).

Aksoy claims that as a wine steward, he actually received tips amounting to

approximately $ 300 a week. Aksoy became ill during his employment and was

unable to work. Apollo paid Aksoy $251.50 to cover unearned wages from February

16, 1995 through February 28, 1995; this amount included $ 174 for guaranteed

minimum tips.

      Aksoy subsequently commenced a class action against Apollo seeking

maintenance and cure on behalf of all similarly situated tip-earning seamen who

became ill or injured on the job and did not receive reasonably anticipated tips or,

alternatively, monthly guaranteed tips as part of their unearned sick wages. Aksoy

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does not dispute that Apollo paid him fixed wages plus an amount equal to the

minimum tips guaranteed by his contract. Rather, Aksoy contends that Apollo should

have paid him his estimated actual earnings as unearned wages, citing this court’s

decision in Flores v. Carnival Cruise Lines, 47 F.3d 1120 (11th Cir. 1995), in support

of his argument. Apollo contends that because Aksoy received the amounts set out

in his contract, Aksoy was paid all the tips to which he was entitled, asserting that

Flores does not command a different result.

      The district court, without certifying a class, granted summary judgment in

favor of Apollo. The district court reasoned that this court’s holding in Flores does

not mandate that Aksoy receive his estimated actual earnings rather than the

guaranteed minimum under the contract. The district court distinguished Flores,

noting that the Flores court employed the actual-earning method of calculating tips

specifically because in that case, unearned tips were not predetermined or paid by the

employer. In contrast, Aksoy’s unearned tips were predetermined under the contract.

Therefore, because Askoy undisputedly received the amount guaranteed under the

contract, the district court concluded that Apollo was entitled to summary judgment.




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                           II. STANDARD OF REVIEW

      We review de novo the district court’s grant of summary judgment and consider

all evidence in the light most favorable to the non-moving party. See Flores v.

Carnival, 47 F.3d 1120, 1122 (11th Cir. 1995).

                                  III. DISCUSSION

      In Flores, this court addressed whether a sick or injured seaman whose income

consisted mainly of tips may recover lost tip income in an action for maintenance and

cure. See id. at 1121. In Flores, the employment contract promised both a monthly

salary and, in addition, “‘daily tips for your services . . . you may expect to go as high

as $1000.00 a month.’” Id. Flores fell ill and received unearned wages in an amount

equal to the lowest paid non-gratuity-earning crew member. Carnival maintained that

it had no legal duty to pay Flores anything more than his salary under the contract, $

45 per month. See id. at 1121-22.

      This court reversed the district court’s grant of summary judgment for Carnival,

holding that Flores was entitled to recover his average tip earnings as unearned wages.

See id. at 1122, 1127. In determining the appropriate method for calculating Flores’s

wages remedy, the court considered the purposes and policy underlying the remedy,

the decisions of courts considering similar questions under workers’ compensation

law, and the actual wording of Flores’s contract. See id. at 1122. The court explained


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that the right to maintenance and cure differs from traditional contract rights; thus, the

remedies available are not limited to contractual remedies. See id. at 1126. Noting

that the bulk of Flores’s compensation came from tips rather than the monthly salary

promised in the contract and that an action for maintenance and cure is designed to put

the employee in the position he would have been in had he continued to work, the

court concluded that Flores was entitled to unearned wages in the amount of his

average weekly tips. See id. at 1127.

      Applying the principles espoused in Flores to the facts of the instant case, we

conclude that Aksoy’s unearned wages should be measured by the amount of his

average weekly tips rather than the minimum amount guaranteed in the contract.

Like the situation in Flores, the “custom and practice” and the expectation of the

parties was that tip income would constitute a substantial portion of Aksoy’s

compensation. Moreover, the only way to place Aksoy in the same position he would

have been in had he continued to work is to allow Aksoy to recover wages in the

amount that he would have earned during the period of time he was ill.

      Apollo urges us to distinguish Flores, arguing that the Flores court employed

the “average weekly tips” method for determining Flores’s unearned wages

specifically because Flores’s contract did not set a rate for unearned tips and because

unearned tips were not paid by the employer; here, by contrast, the actual language of


                                            5
Aksoy’s contract set out an amount of unearned wages that Apollo undisputedly paid.

We decline to distinguish Flores on those grounds. The language in Aksoy’s contract

did not purport to place a limit on the amount of unearned wages Aksoy was entitled

to receive; it merely guaranteed that he would receive, at a minimum, the amount

stated in the contract. We therefore need not decide whether the right to unearned

wages may be modified by contract and to what extent, if any, the Flores method of

determining unearned wages applies in such cases. Here, Aksoy’s contract neither

estimated the tips he would receive nor purported to place a ceiling on the unearned

wages to which he was entitled.

                               IV. CONCLUSION

      For these reasons, we conclude that the district court erred in granting summary

judgment for Apollo. We therefore vacate the judgment of the district court and

remand for further proceedings consistent with this opinion.

      VACATED AND REMANDED.




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