                                                             [PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                 FOR THE ELEVENTH CIRCUIT                 FILED
                                                   U.S. COURT OF APPEALS
                   ________________________          ELEVENTH CIRCUIT
                                                         JUNE 8, 2001
                                                      THOMAS K. KAHN
                           No. 00-12619                    CLERK
                    ________________________
                D. C. Docket No. 98-02076-CV-DLG

JOSE ANTONIO CABRERA ESPINAL,
                                                       Plaintiff-Appellee,

                             versus

ROYAL CARIBBEAN CRUISES, LTD.,
CELEBRITY CRUISES, INC.,
                                                   Defendants-Appellants.


                   ________________________

                           No. 00-13268
                    ________________________
                 D. C. Docket No. 99-02475-CV-SH

JOSE ANTONIO CABRERA ESPINAL,
                                                      Plaintiff-Appellant,

                             versus

ROYAL CARIBBEAN CRUISES, LTD.,
CELEBRITY CRUISES, INC.,
                                                   Defendants-Appellees.
                               ________________________

                     Appeals from the United States District Court
                         for the Southern District of Florida
                           _________________________
                                   (June 8, 2001)

Before TJOFLAT and WILSON, Circuit Judges, and RESTANI*, Judge.

PER CURIAM:

       Jose Antonio Cabrera Espinal (“Cabrera Espinal”) is the plaintiff in two related

cases that have been consolidated on appeal. Addressing each temporally according

to the date filed, we will refer to the cases as Espinal I and Espinal II. For the reasons

stated below the district court’s decision in Espinal I is affirmed in part and reversed

in part, and Espinal II is affirmed.

                                         ESPINAL I

       Cabrera Espinal worked on Royal Caribbean Cruises’ (“RCC”) ships as a tip-

earning employee under a contract that commenced on December 23, 1997 and

expired on November 23, 1998. The contract provided for at-will employment to be

terminated with two weeks notice. A collective bargaining agreement (“CBA”)

governed the contract.




       *
        Honorable Jane A. Restani, Judge, U.S. Court of International Trade, sitting by
designation.

                                               2
      The contract provided for a guaranteed minimum monthly income of $766.00

($50 in contract wages and $716 in tips). If an employee did not receive the

calculated monthly minimum in tips, RCC would provide the difference.

      In February of 1998, Cabrera Espinal herniated a lumbar disc and was unable

to finish his employment contract due to his work related injury. Pursuant to the

CBA, RCC paid him sick wages from the time he became injured for 112 days in the

amount of $766 per month. Cabrera Espinal brought suit against RCC contending that

he is entitled to his average or actual monthly salary ($1500 which includes $1450 in

tips) as sick wages instead of the guaranteed minimum.

      The district court agreed with Cabrera Espinal and found that he was entitled

to actual wages for the 112 days provided for in the CBA. RCC now appeals that

decision.

                                   DISCUSSION

      The sole question for review is whether the district court should have applied

general maritime law or the CBA in calculating the amount of unearned sick wages

and the length of time for which those wages are due. We review a motion granting

summary judgment de novo, applying the same legal standards used by the district

court. Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1196 (11th Cir. 1997).




                                         3
       Under general maritime law, seamen are entitled to bring an action for

“maintenance and cure,” a remedy available to compensate seamen who fall ill or

become injured during the their term of employment. See Flores v. Carnival Cruise

Lines, 47 F.3d 1120, 1122 (11th Cir. 1995). The Supreme Court has previously

recognized that a ship owner’s liability for maintenance and cure is among the most

pervasive and should not be defeated by narrow or restrictive distinctions. See

Vaughan v. Atkinson, 369 U.S. 527, 532 (1962). Nonetheless, the remedies provided

for in maritime law may be altered although not abrogated by collective bargaining

agreements. See Frederick v. Kirby Tankships, Inc., 205 F.3d 1277, 1291 (11th Cir.

2000) (holding that where a CBA fixes a maintenance rate, the term should be

enforced), cert. denied, __ U.S. __, 121 S. Ct. 46 (2000). “[T]he broad labor policies

which undergird federal labor law, as well as the nature of the collective bargaining

process, require adherence to the CBA.” Id.; see also Gardiner v. Sea-Land Serv., Inc.,

786 F.2d 943, 948 (9th Cir. 1986). The reason for this is that a CBA represents a

mutual agreement encompassing a wide range of issues for which some provisions

will result in greater protection than that represented by statute while others will result

in less. Frederick, 205 F.3d at 1291; see also Lipscomb v. Foss Maritime Co., 83 F.3d

1106, 1108-9 (9th Cir. 1996). As a result, based on the greater considerations that

result in a collective bargaining agreement, this court will enforce the provisions


                                            4
unless contrary to the law. See Marshall v. Western Grain Co., 838 F.2d 1165, 1168-

70 (11th Cir. 1988)(per curiam).

      General maritime law guarantees seamen: “(1) maintenance, which is a living

allowance; (2) cure, which covers nursing and medical expenses; and (3) wages.”

Herbert R. Baer, Admiralty Law of the Supreme Court 6 (3d ed. 1979); see 1B

Benedict on Admiralty § 43 (7th ed. 1994). Our case law has previously held that the

wages for incapacitated seamen should be measured based on their average tip

income. See e.g., Flores, 47 F.3d at 1127; Aksoy v. Apollo Ship Chandlers, Inc., 137

F.3d 1304 (11th Cir. 1998)(per curiam).

      RCC argues that the district court erred in applying our previous case law in

light of a collective bargaining agreement that explicitly states how sick pay and basic

monthly wages would be measured. It contends that prior case law used average tip

income as a measure simply because no other method of calculation existed and had

this situation been presented to those panels, they would have found the CBA

applicable.

      Given this argument, we first look to whether the CBA modified general

maritime law. The CBA states:

      Wages (basic monthly wage), will continue [after the seafarer leaves the
      ship] on submission of satisfactory medical certificates for a maximum
      of 112 (hundred and twelve) days.


                                           5
CBA, Article 12. An attached chart also indicates what specific “basic monthly wage”

and “sick pay” are. The district court held that the CBA expressly modified the

maritime law computation of sick wages. We agree. Yet, the district court relied on

a series of cases, which calculated sick wages as wages plus average tip-income

instead of a fixed minimum, to hold that the clause modifying maritime law was

inapplicable. We find that the district court erred in finding the clause inapplicable.

      The two cases that the district court relies on in support of basing sick wages

on the average tip income of the seafarer are Flores and Aksoy. Flores is easily

distinguishable because there Carnival Cruise Lines argued that it had no legal duty

to pay more than the $45-per-month salary as unearned (or sick) wages. 47 F.3d at

1122. In a case of first impression, the court held that tip income must be included in

the calculation of unearned wages. Id. at 1127. It, then, set the rate as the average tip

income earned absent any other prevailing authority on the matter. Id. Three years

later, the Aksoy court relied on the Flores logic to calculate unearned wages as the

average tip income plus guaranteed minimum wage because “Aksoy’s contract did not

purport to place a limit on the amount of unearned wages Aksoy was entitled to

receive. . .” Aksoy, 137 F.3d at 1306. The present case is distinguishable not only

because a plain language reading of the CBA purports to limit the amount of unearned

wages but also in the intervening period, we have adopted a view of the law that


                                           6
requires us to rely on collective bargaining agreements’ modifications of maritime

law. See Frederick, 205 F.3d at 1291.

      Therefore, we conclude that nothing in maritime law prevents the setting of sick

wages below the average tip income received. The CBA in the instant case, as is true

in any collective bargaining agreement, represents a series of trade-offs between an

employer and employees reaching a mutually satisfying agreement. Courts should be

loathe for a multitude of reasons to abrogate clauses in such contracts absent a

pressing legal reason. Furthermore, precedent in this circuit may be distinguished on

the grounds that none of the employment contracts in those cases explicitly indicated

how sick pay and basic monthly wages would be calculated. As the CBA in this case

did, we find that the district court erred in not relying on the CBA to calculate the

amount of unearned sick wages. However, because the district court correctly relied

on the CBA to calculate the length of time for which those wages should be paid, that

part of the opinion is affirmed. See Farrell v. United States, 336 U.S. 511, 520-21

(1949) (holding that a seaman’s length of voyage is the duration of employment for

which sick wages are due unless some longer term is enforceable); Nichols v. Barwick,

792 F.2d 1520, 1524 (11th Cir. 1986) (same).

                                    ESPINAL II




                                          7
       Filed later in time than Espinal I but occurring prior to the events that led up to

that case, Cabrera Espinal appeals the district court’s grant of summary judgment to

the RCC.

       Cabrera Espinal was a tip-earning employee under a contract for Celebrity

Cruises, Inc.,1 which commenced on November 4, 1996 and expired on October 3,

1997. His contract guaranteed him income of $743 per month ($50 in wages with the

rest in tips). He could be terminated at-will and without notice.

       Cabrera Espinal developed an eye injury during his period of employment but

waited until the boat returned to port at its final destination on October 1, 1997 before

receiving medical attention. Prior to the end of the voyage, Cabrera Espinal consulted

the ship’s doctor. Upon leaving the ship, he first saw a doctor in Miami and then in

his native land of Honduras where the medical attention he received resulted in a cure

on December 3, 1997.

       RCC paid sick wages to Cabrera Espinal based on the guaranteed minimum for

63 days under the then applicable CBA. Cabrera Espinal again argues that he was

entitled to actual earnings of $1500 during that period. The district court granted

summary judgment to RCC stating that because Cabrera Espinal’s contract terminated



       1
        Royal Caribbean Cruises bought out Celebrity Cruises prior to Cabrera Espinal’s receipt
of sick wages.

                                               8
on or about October 1, 1997, he was not entitled to receive any sick pay under either

maritime law or the CBA as of that date.

                                        DISCUSSION

       The sole question for review is whether the district court erred in granting

summary judgment to RCC by finding that Cabrera Espinal was not an employee and

thus not entitled to sick pay under the CBA or maritime law.

       Cabrera Espinal contends that in light of the rule of Farrell, 336 U.S. 511,2 the

CBA’s sick period and wage provisions did not become null and void when the

employment contract expired. He further argues that because RCC paid some sick

wages, it is an implicit admission that sick wages are due.

       For all the reasons stated in Espinal I, we hold that the CBA applies. Article 2

of the CBA states that an employee is covered by the agreement until the owner ceases

to be liable for wages or the date at which the employee signs off the ship. It is

undisputed that Cabrera Espinal signed off the ship on October 1, 1997, after the final

voyage was completed and two days before his employment contract expired and the

boat would leave port again. Article 12 of the CBA provides that a signed off seafarer

who lands in any port as a result of injury or sickness will continue to receive his



       2
         Farrell held that as a general rule a seaman’s employment term is the length of voyage
unless there is a longer term of employment enforceable.

                                                9
wages until he has been repatriated at company expense. The seafarer will then be

paid in advance for the anticipated number of days certified by a doctor that he is

expected to be sick or injured.

      The boat that Cabrera Espinal was employed on docked in Los Angeles.

Cabrera Espinal was flown at company expense to Miami, where he received an initial

examination. On October 4, 1997, he flew home to Honduras for surgery. His

surgery was completed on December 3, 1997. At the time of Cabrera Espinal’s

operation, Celebrity Cruise Lines merged with RCC. RCC contends that it was during

this confusing time when it was unclear whose CBA applied and paperwork was lost

that a disbursement for sick wages was made.

      We need not decide when and under what circumstances Cabrera Espinal

received sick wages. It is more than enough to rely on the fact that a “seaman’s action

for maintenance and cure may be seen as one designed to put the sailor in the same

position as he would have been had he continued to work: . . . and he receives an

amount representing his unearned wages for the duration of his voyage or contract

period.” Flores, 47 F.3d at 1127; see also Farrell, 336 U.S. at 516 (stating that a

seaman must be in service of the ship at the time of his injury to receive maintenance

and cure). In the instant case, the final voyage was completed and only two days

were left on Cabrera Espinal’s employment contract. To find that the company owed


                                          10
him any further obligations would contradict both contract law as embodied in the

CBA and this circuit’s interpretation of general maritime law. As a result, we affirm

the district court’s grant of summary judgment to RCC.

                                   CONCLUSION

      In Espinal I, we find that the CBA governed in its entirety the amount and

duration of sick wages to be paid. As a result, the district court’s calculation of the

amount of sick wages is REVERSED.

      The application of the CBA’s 112-day sick period is AFFIRMED.

      As it appears that RCC paid sick wages for 112 days based on its calculation

of the basic monthly wages, it has fulfilled its obligations to Cabrera Espinal.

      In Espinal II, because we find that Cabrera Espinal was sufficiently

compensated for his term of employment and was owed no further duty at the time he

was recuperating from his eye injury, the district court’s grant of summary judgment

is AFFIRMED.

      Finally, RCC complied with the CBA and no evidence of bad faith exists on its

part. See Flores, 47 F.3d at 1127. Therefore, Cabrera Espinal’s motion requesting

attorneys’ fees is DENIED.




                                          11
