                                                            [PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT                FILED
                                                  U.S. COURT OF APPEALS
                                                    ELEVENTH CIRCUIT
                                                        MAR 08 2000
                                                     THOMAS K. KAHN
                            No. 98-2734                   CLERK

                D. C. Docket No. 96-1022-CIV-T-26-A


TERRANCE J. FREDERICK,
                                               Plaintiff-Appellee,
                                               Cross-Appellant,
                               versus

KIRBY TANKSHIPS, INC.
                                               Defendant-Appellant,
                                               Cross-Appellee.

                         __________________

                            No. 99-2457
                       ___________________
                D.C. Docket No. 96-01022-CIV-T-26A

TERRANCE J. FREDERICK,
                                              Plaintiff-Appellee,

                               versus

KIRBY TANKSHIPS, INC.,
                                              Defendant-Appellant.
                      Appeals from the United States District Court
                           for the Middle District of Florida
                                     ___________
                                   (March 8, 2000)


Before DUBINA, Circuit Judge, KRAVITCH, Senior Circuit Judge, and NESBITT*,
Senior District Judge.

DUBINA, Circuit Judge:

       This case involves an appeal from a jury verdict in favor of

Plaintiff/Appellee/Cross-Appellant, Terrance J. Frederick (“Frederick”), on his claim

for Jones Act negligence, unseaworthiness, maintenance, cure, and unearned wages

arising from injuries Frederick received from a slip and fall while aboard the ship

“Champion.” Kirby Tankships, Inc. (“Kirby”), Defendant/Appellant/Cross-Appellee,

presents seven issues for appellate review: (1) whether the jury’s damages award for

unearned wages, maintenance, and cure was excessive; (2) whether the district court

erred in denying Kirby’s motion for judgment as a matter of law on the issue of

maintenance and cure; (3) whether the district court erred in not giving a limiting

instruction as to the evidence on Frederick’s termination; (4) whether the district court

abused its discretion by not granting a mistrial after a witness testified on evidence

excluded earlier by an in limine ruling; (5) whether the district court erred in refusing


   *
      Honorable Lenore C. Nesbitt, Senior U.S. District Judge for the Southern District of Florida,
sitting by designation.

                                                2
to limit the testimony of an expert witness; (6) whether the failure to plead mitigation

as an affirmative defense precludes a jury instruction on that defense; and (7) whether

the district court abused its discretion in denying Kirby’s Federal Rule of Civil

Procedure 60(b) motion. Frederick presents two issues on cross-appeal: (1) whether

the district court erred in directing a verdict against his claim for penalty wages under

46 U.S.C. § 10504; and (2) whether the district court erred in applying the collective

bargaining agreement’s maintenance rate, instead of Frederick’s actual maintenance

expenditures. After a thorough review of the record, we conclude that the jury’s

damages award for unearned wages, maintenance, and cure is not supported by the

evidence. Therefore, we reverse that part of the judgment and remand this case to the

district court with instructions to either remit the jury’s damages award to $107,946.43

or grant Frederick a new trial on damages. We affirm the district court’s judgment on

all other issues.

                                    I. Background

       Kirby owns and operates oil tankers, including the Champion. Kirby hired

Frederick, a career ship engineer, to work on the Champion as its chief engineer.

Frederick worked on the Champion as it delivered oil from Pascagoula, Mississippi,

to various U.S. ports on the Atlantic Ocean.




                                           3
      On September 12, 1994, while aboard the Champion, Frederick slipped and fell

on an allegedly oily ramp. As a result, he suffered severe pain in his left knee, hips,

and back. He laid on the deck until another crewmember found him and assisted him

to his room. The ship’s captain, Captain Fox, visited Frederick and entered a notation

into the ship’s log that Frederick suffered injuries to his “left leg, knee to hip.” The

ship arrived in port on September 13, and Frederick went to a medical facility where

he received a “not fit for duty” slip. He returned to the ship for the night and left the

ship the next day. Subsequently, he traveled to his mother’s house and stayed with

his fatally-ill mother until she died on October 30, 1994.

      While at his mother’s house, Frederick sought treatment for his injuries. Dr.

Sicari treated Frederick for his knee and recommended that he seek further treatment

from Dr. Hottentot, an orthopedic surgeon. Dr. Hottentot examined Frederick’s knee

and concluded that his knee had recovered. Dr. Hottentot, however, discovered that

Frederick, for the last 10 to 15 years, has suffered from a degenerative hip condition.

As a result, Dr. Hottentot advised Frederick to undergo a bilateral hip replacement and

advised Frederick that he should not return to work.

      Even though Frederick’s hip problems persisted, he returned to work on the

Champion in January of 1995 because he needed money. His hips caused him

constant pain, but he could not take pain medication onboard the ship because Kirby


                                           4
had a policy against drug use by its employees. Due to the constant pain, Frederick

cut short his tour of duty. A few months later, Kirby terminated Frederick, alleging

that he falsified oil records. After his termination, Frederick consulted an orthopaedic

surgeon, Dr. Choung, who eventually performed right hip replacement surgery on

Frederick.

       On May 23, 1996, Frederick filed a complaint against Kirby, asserting Jones

Act claims of negligence, unseaworthinesss, maintenance, and cure for injuries to his

left knee, both hips, and back that he suffered in the slip and fall. He also sought lost

wages and penalty wages pursuant to 46 U.S.C. § 10504. After a series of in limine

rulings, the district court conducted a jury trial.

       After the conclusion of the trial, the jury returned a verdict in favor of Frederick

in the amount of $810,903.80. This award included $525,069.00, for unearned wages,

maintenance, and cure, and $1,242,760.00, for Jones Act negligence and

unseaworthiness, adjusted downward by 77% due to Frederick’s pre-existing hip

condition. The district court denied Kirby’s renewed motion for judgment as a matter

of law, or alternatively, motion for a new trial or remittitur. Kirby then appealed to

this court.

       On August 6, 1998, Frederick filed a second complaint against Kirby seeking

additional maintenance and cure payments. This second action, Case No. 98-1559,


                                            5
Civ. T-23 C (“Frederick II”), has been stayed pending resolution of this appeal. On

August 21, 1998, Frederick filed another complaint, Case No. 98-207, Civ. OC-10B

(“Frederick III”), alleging disability discrimination under the American with

Disabilities Act (“ADA”) and age discrimination under the Age Discrimination in

Employment Act (“ADEA”).

      Soon after the filing of Frederick II and III, Kirby filed a Federal Rule of Civil

Procedure 60(b) motion for relief from judgment, alleging that the two subsequent

actions contradicted allegations presented by Frederick in Frederick I. The district

court denied Kirby’s Rule 60(b) motion, and Kirby appealed the district court’s ruling

to this court. We have consolidated the appeals.

                                     II. Discussion

      A.     Appeals by Kirby

             1.     Excessiveness of the Maintenance, Cure, and Unearned Wages

                    Damages Award

      Kirby contends on appeal that the district court erred in not granting its motion

for remittitur, or alternatively, a new trial on damages only, due to the jury’s allegedly

excessive award for maintenance, cure, and unearned wages. In particular, Kirby

avers that the evidence presented at trial supported a maximum award for

maintenance, cure, and unearned wages of only $107,947.43, a figure well below the


                                            6
jury’s award of $525,069, especially considering that the jury did not award extra

damages caused by a willful and arbitrary refusal to pay maintenance and cure.

      In an appeal from a denial of a motion for remittitur, this court “must

independently determine the maximum possible award that is reasonably supported

by the evidence in the record.” Deakle v. John E. Graham & Sons, 756 F.2d 821, 827

(11th Cir. 1985). Any excess must be remitted, or alternatively, a new trial may be

granted on damages. See id. at 827-28.

      We conclude that the record supports $107,947.43 as the maximum possible

amount for maintenance, cure, and unearned wages. Frederick’s economist, Dr. Susan

Long, who relied upon a daily maintenance rate of $15 per day, calculated the

maximum past and future maintenance that Kirby owed Frederick to be $20,910.73.

Dr. Long also testified that Frederick’s past and future medical expenses, i.e. cure,

total $75,000, absent any complications. Frederick did not produce any evidence of

complications. As to unearned wages, Frederick is entitled to wages from the time of

his discharge until his employment term expired. The collective bargaining agreement

set his daily wage at $326.24, which, when adjusted at the 21.5 percent tax rate

utilized by Dr. Long, amounts to $256.10 per day. Frederick should receive unearned

wages for the time between September 14, 1994, the date he disembarked the

Champion, and October 30, 1994, the date his mother died, because Frederick testified


                                         7
that he would have disembarked upon her death regardless of his health. For those 47

days, Frederick’s unearned wages total $12,036.70. By adding together $20,910.73

for maintenance, $75,000 for cure, and $12,036.70 for unearned wages, we conclude

that the maximum possible amount for maintenance, cure, and unearned wages is

$107,947.43.

         Furthermore, the jury did not award extra damages caused by a willful and

arbitrary refusal to pay maintenance and cure. Pursuant to jury instruction number 13,

the jury could award damages to Frederick based on a finding of a willful or arbitrary

failure by Kirby to pay maintenance and cure.1 The jury, however, held that Kirby

was not willful and arbitrary in its failure to pay maintenance and cure.2 Thus, the

jury’s award of $525,069 exceeds the maximum amount of damages supported by the

evidence.




   1
      Jury instruction 13 states:
                  However, you [the jury] may still be able to award damages to the Plaintiff
         for any “willful or arbitrary” failure on the part of the employer to have paid him
         maintenance and cure when it was due.
                  Where the Defendant willfully and arbitrarily fails to pay maintenance or
         provide cure to a seaman up to the time that he receives maximum cure, and such
         failure results in an aggravation of the seaman’s injury, then the seaman may recover
         those damages and necessary expenses that he can prove he sustained.
  2
   Special jury verdict number nine asked the jury: “If you answered ‘Yes’ to Question 7 [whether
Kirby failed to pay maintenance and cure], was Kirby willful and arbitrary in their failure to pay
maintenance and cure.” The jury answered “No.”

                                                  8
       Now, we must determine whether to order a remittitur or a new trial. The rule

in this circuit states that where a jury's determination of liability was not the product

of undue passion or prejudice, we can order a remittitur to the maximum award the

evidence can support. See Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492,

1507 (11th Cir.1985); Howell v. Marmpegaso Compania Naviera, 536 F.2d 1032,

1034 (5th Cir. 1976).3 Because the jury refused to find Kirby willful and arbitrary in

providing maintenance and cure and found that the accident slightly aggravated a pre-

existing injury, we reject Kirby’s contention that the jury was actuated by passion.

See Howell, 536 F.2d at 1034 n.4 (holding that a jury was not actuated by passion

where it refused to find the defendant shipowner negligent and found the plaintiff

contributorily negligent). In sum, we hold that the evidence presented in this case

reasonably supports a maximum award of $107,947.43 for maintenance, cure, and

unearned wages. On remand, we direct the district court to order a remittitur in this

amount, or at Frederick’s option, grant him a new trial on the issue of damages. See

Deakle, 756 F.2d at 834.

       2.     Judgment as a Matter of Law on Maintenance and Cure




   3
    This court adopted as binding precedent all Fifth Circuit decisions prior to October 1, 1981.
See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)(en banc).

                                               9
      Kirby argues that the district court erred in rejecting its motion for judgment as

a matter of law on Frederick’s maintenance and cure claim. Kirby asserts that

Frederick did not produce sufficient evidence to prove that his fall aggravated his pre-

existing degenerative hip condition. In deciding a motion for judgment as a matter of

law, this court determines whether substantial evidence of such quality and weight

exists that reasonable and fair-minded jurors in the exercise of impartial judgment

might reach a different conclusion. See Vulcan Painters, Inc. v. MCI Constructors

Inc., 41 F.3d 1457, 1461 (11th Cir. 1995). In examining the evidence, we view the

evidence in the light most favorable to the nonmovant. See Equitable Life Assur.

Soc'y of the United States v. Studenic, 77 F.3d 412, 415 (11th Cir.1996).

      Frederick presented sufficient evidence to prove that the fall aggravated his hip

condition. On the day of the fall, Captain Fox reported that Frederick suffered injuries

to the “leg, knee to hip.” At trial, Dr. Hottentot, an orthopedic surgeon, testified that

the fall probably wrenched Frederick’s hips and that the fall accelerated the

deterioration of his hips. Similarly, Dr. Choung, Frederick’s treating physician,

testified that the fall probably accelerated the deterioration of Frederick’s hips. Dr.

Choung also testified that Frederick used his knees and back to compensate for his hip

condition and that he could have continued to work if not for the fall. Frederick,




                                           10
however, could not recover from the fall as well as someone without a pre-existing hip

condition.

        We conclude that this evidence, viewed in the light most favorable to

Frederick, is of such quality and weight that reasonable and fair-minded jurors in the

exercise of impartial judgment could conclude that Frederick’s fall aggravated his pre-

existing hip condition. See Landry v. Offshore Logistics, Inc., 544 F.2d 757, 760 (5th

Cir. 1977)(“Here, we have the classic conflict. One doctor says that Landry has only

a 5% disability and can go back to work. Another doctor, and Landry, say that he

cannot. We must resist the temptation to say what we would have done had we been

sitting on the jury, for the issue was for it to determine.”). Therefore, we affirm the

district court’s denial of Kirby’s motion for judgment as a matter of law as to the

maintenance and cure claim.

        3.     Evidence of Frederick’s Termination by Kirby

        Kirby asserts that the district court erred in not giving a limiting instruction on

evidence regarding Frederick’s termination as required by Federal Rules of Evidence

105 (“Rule 105”).4 Kirby argues that the jury could consider the termination evidence

for proof of Frederick’s motive to sue, but not for the propriety of the termination.


    4
     Fed.R.Evid.105 provides: “When evidence which is admissible as to one party or for one
purpose but not admissible as to another party or for another purpose is admitted, the court, upon
request, shall restrict the evidence to its proper scope and instruct the jury accordingly.”

                                               11
The district court agreed, stating that the jury could consider the evidence only in

regards to Frederick’s motive to sue, but did not give a limiting instruction as

requested by Kirby. Under Rule 105, a court must give a limiting instruction when

requested where evidence is admissible for one purpose and not another. See Lubbock

Feed Lots, Inc. v. Iowa Beef Processors, Inc., 630 F.2d 250, 266 (5th Cir. 1980).

      We conclude that the district court erred in not granting Kirby’s request for a

limiting instruction, but the failure to do so was harmless error because Kirby cannot

show that the district court’s failure to give a limiting instruction affected its

substantial rights. See Fed.R.Evid. 103(a); Fed.R.Civ.P. 61; Lubbock, 630 F.2d at

266. Kirby alleges that Frederick used the termination’s propriety to create sympathy

and prejudice in the jury, but Kirby does not elaborate beyond this assertion.

Therefore, we hold that Kirby has failed to satisfy its burden of demonstrating that it

was prejudiced by the district court’s failure to give a limiting instruction. See Hunt

v. Marchetti, 824 F.2d 916, 920 (11th Cir.1987) (holding that a party asserting an

error on appeal has the burden of demonstrating prejudice to substantial rights); Perry

v. State Farm Fire & Casualty Co., 734 F.2d 1441, 1446 (11th Cir. 1984)(same).

      4.     Motion for Mistrial

      Kirby argues that the district court abused its discretion by not ordering a

mistrial after a witness on a videotape alleged that Kirby’s employees had


                                          12
intentionally spilled oil onto the Champion’s deck. Prior to trial, the district court,

pursuant to Kirby’s motion in limine, excluded such evidence as prejudicial. During

the trial, Frederick played the videotaped testimony without excising the testimony on

the spilled oil, and thus, the jury heard the inadmissible evidence.

       We review a district court’s decision on a motion for mistrial for abuse of

discretion. See United States v. Newsome, 998 F.2d 1571, 1575 (11th Cir. 1993). To

find error warranting reversal, we must find that Kirby made a timely objection and

that a substantial right was affected. See Fed.R.Evid. 103(d); Judd v. Rodman, 105

F.3d 1339, 1342 (11th Cir. 1997). We conclude, as did the district court, that Kirby

did not make a timely objection because it did not object until after the videotape

testimony was played.5

       Alternatively, Kirby argues that its motion in limine preserved its right to

appeal this issue. Generally, a party must object to preserve error in the admission of

testimony, even when a party or a court violates an in limine ruling. See Collins v.

Wayne Corp., 621 F.2d 777, 785 (5th Cir. 1980). A motion in limine, however, may

preserve an error for appeal if a good reason exists not to make a timely objection at

trial. See Judd, 105 F.3d at 1342.


   5
     The district court also noted that Kirby did an excellent job of impeaching the witness and thus
reduced the prejudicial effect caused by the introduction of evidence that Kirby had intentionally
spilled oil.

                                                 13
      Kirby presents two reasons for not objecting immediately. First, Kirby argues

that it elicited most of the allegedly prejudicial testimony on cross-examination, and

if Kirby objected to its own cross-examination, then it would have drawn the jury’s

attention to the prejudicial evidence. See Rojas v. Richardson, 703 F.2d 186, 189 (5th

Cir. 1983)(“An objection to one's own testimony is an absurdity . . . . This Circuit

consequently found the offensive use of damaging information to fall outside the

general rule requiring a timely objection.”). Kirby, however, could have objected

when the evidence was offered on direct examination, thereby avoiding the potential

problem of objecting to its own cross-examination. Second, Kirby asserts that it did

not anticipate that Frederick would play the non-excised videotaped testimony and

was caught off guard. This is not a valid reason for failing to make a timely objection.

Therefore, we conclude that Kirby has not presented a valid reason for its late

objection and has not preserved its right to appeal this issue.

      5.     Expert Testimony on Frederick’s Future Work Life

      Kirby argues that the district court abused its discretion by allowing Dr. Choung

to testify regarding Frederick’s future work life expectancy. Prior to trial, the court

denied Kirby’s motion in limine to limit Dr. Choung’s testimony. At trial, Kirby

failed to object to Dr. Choung’s testimony regarding Frederick’s future work life

expectancy. Kirby does not present any reasons for not objecting to the testimony at


                                          14
trial. Thus, Kirby has waived its right to appeal this issue. See Judd, 105 F.3d at

1342; Collins, 621 F.2d at 785.

      6.     Jury Instruction on Failure to Mitigate Damages

      Kirby alleges that the district court committed error by denying its requested

instruction on mitigation of damages. In particular, Kirby argues that the court erred

in holding that the failure to mitigate damages is an affirmative defense.

      Federal Rule of Civil Procedure 8(c) (“Rule 8(c)”) does not include the failure

to mitigate damages among the 19 enumerated affirmative defenses. Most federal

courts, however, regard the failure to mitigate as an affirmative defense under Rule

8(c)’s catchall clause which provides for “any other matter constituting an avoidance

or affirmative defense.” See Conjugal Partnership v. Conjugal Partnership, 22 F.3d

391, 400 (1st Cir. 1994)(“Failure to mitigate is an affirmative defense as a matter of

federal procedural law . . . .”); Lennon v. United States Theatre Corp., 920 F.2d 996,

1000 (D.C. Cir. 1990)(“[F]ailure to mitigate damages is an affirmative defense under

Rule 8(c).”);   Sayre v. Musicland Group, Inc., 850 F.2d 350, 354 (8th Cir.

1988)(same). This circuit has held that the “failure to mitigate damages . . . is an

affirmative defense.” NLRB v. Pilot Freight Carriers, Inc., 604 F.2d 575, 576 (5th

Cir. 1979). Kirby has cited no case to the contrary.




                                         15
      Instead, Kirby asserts two arguments as to why the failure to mitigate damages

is not an affirmative defense. First, Kirby, citing to a 1917 case, argues that under

admiralty law the failure to mitigate is not an affirmative defense. See Coronet

Phosphate Co. v. United States Shipping Co., 260 F. 846, 848 (S.D.N.Y.

1917)(“[T]here is no propriety, even in admiralty, in pleading evidence in mitigation

of damages in the answer to the libel.”). This 1917 case, however, predates a change

in law which applies the Federal Rules of Civil Procedure to admiralty cases. Since

the change in 1966, federal courts have viewed the mitigation of damages as an

affirmative defense in admiralty cases. See Boudreau v. S/V Shere Khan C, 27 F.

Supp. 2d 72, 81 (D. Me. 1998)(citing Fashauer v. New Jersey Transit R. Operations,

Inc., 57 F.3d 1269, 1289 (3rd Cir. 1995))(“The plaintiff has a duty to take reasonable

steps to minimize his or her losses, and the defendant bears the burden of proving

breach of such a duty as an affirmative defense.”); see also Davis v. Odeco, Inc., 18

F.3d 1237, 1246 (5th Cir. 1994)(holding in a maritime case that the defense of set-off

against maintenance and cure is an affirmative defense).

      Second, Kirby argues that only defenses which relieve liability must be

affirmatively pled and not defenses that diminish damages. Kirby cites Southport

Transit Co. v. Avondale Marine Ways, Inc., 234 F.2d 947 (5th Cir. 1956), for the

proposition that the failure to mitigate damages is not a defense, but a mere rule of


                                         16
damages. See id. at 952. The Southport court did not address whether the failure to

mitigate is an affirmative defense, rather it merely explained the difference between

contributory negligence and the failure to mitigate. In Sayre v. Musicland Group,

Inc., the Eighth Circuit rejected as unsound the exact same assertion that only defenses

that bar recovery, rather than those that diminish the amount of damages, must be pled

affirmatively. See 850 F.2d at 354. Like our sister circuit, we reject Kirby’s

arguments and hold that failure to mitigate damages is an affirmative defense under

Rule 8(c). Accordingly, the district court did not err in rejecting Kirby’s jury

instruction because failure to plead an affirmative defense results in waiver of that

defense. See American Nat’l Bank v. FDIC, 710 F.2d 1528, 1537 (11th Cir. 1983).

             7.     Rule 60(b)

      Kirby asserts that the district court abused its discretion by not granting Kirby’s

Federal Rule of Civil Procedure 60(b) (“Rule 60(b)”) motion for relief of judgment.

Specifically, Kirby argues that the district court erred by concluding that the

subsequent lawsuits filed by Frederick do not amount to a basis for Rule 60(b)(3)

relief and by failing to address Kirby’s Rule 60(b)(5) and (b)(6) claims. We review

the district court's denial of a motion to set aside a judgment pursuant to Rule 60(b)

for abuse of discretion. See American Bankers Ins. Co. v. Northwestern Nat’l Ins. Co.,




                                          17
198 F.3d 1332, 1338 (11th Cir. 1999). After reviewing the record, we reject Kirby’s

arguments and affirm the district court’s ruling.

                       a.      Rule 60(b)(3)

       Rule 60(b)(3) allows a court to grant relief from a final judgment if the moving

party proves by clear and convincing evidence that an adverse party has obtained the

verdict through fraud, misrepresentation, or other misconduct. See Scutiere v. Paige,

808 F.2d 785, 794 (11th Cir. 1987); Rozier v. Ford Motor Co., 573 F.2d 1332, 1339

(5th Cir. 1978). The moving party must also show that the conduct prevented the

losing party from fully and fairly presenting his case or defense. See Scutiere, 808

F.2d at 794; Rozier, 573 F.2d at 1339.

       Kirby alleges two instances of fraud and misrepresentation committed by

Frederick when he allegedly took a particular position in Frederick I and then took an

inconsistent position in Frederick II and III.6 Kirby argues that Frederick committed

fraud and misrepresentation by presenting evidence in Frederick I on the monetary

amounts for both past and future maintenance and cure, and then, subsequently suing



   6
     In conjunction with its argument, Kirby asserts that the district court erred by considering the
pleadings in Frederick II and III as allegations and not as admissible evidence. Generally, “the
pleading[s] of a party made in another action . . . are admissible as admissions of the pleading party
to the facts alleged therein.” Continental Ins. Co. of New York v. Sherman, 439 F.2d 1294, 1298 (5th
Cir. 1971). We are persuaded that the district court considered the pleadings as admissible evidence,
and accordingly, found that the pleadings did not prove fraud, misrepresentation, or misconduct by
Frederick.

                                                 18
for additional maintenance and cure in Frederick II. Kirby, however, does not point

to any factual allegation made in Frederick II that directly contradicts Frederick I.

Instead, Kirby only avers that Frederick committed fraud and misrepresentation by

suing a second time for maintenance and cure. If Frederick did attempt to take a

second bite from the proverbial apple as Kirby argues, then the appropriate action for

Kirby is to obtain dismissal of Frederick II on the basis of claim or issue preclusion,

and possibly, seek Rule 11 sanctions.            However, a Rule 60(b) motion is not

appropriate.

       Kirby also argues that, in Frederick I, Frederick stated he was unable to work,

but filed in Frederick III an age and disability discrimination case under the ADA and

ADEA. The ADA defines a “qualified” individual as “an individual with a disability

who, with or without reasonable accommodation, can perform the essential functions”

of his job. 42 U.S.C. § 12111(8); see also Talavera v. School Brd. of Palm Beach

County, 129 F.3d 1214, 1220 (11th Cir. 1997) (holding that an employee’s

certification of total disability for social security disability does not always judicially

estop an employee from arguing that she is a qualified individual with a disability

under the ADA). Consistent with ADA requirements, Frederick asserts in Frederick

III that he can work with accommodation after his left hip is replaced. Thus,

Frederick’s assertion in Frederick III that he could work with accommodation after his


                                            19
hip is replaced is not inconsistent with his claimed inability to work in Frederick I.

Accordingly, we reject Kirby’s arguments and affirm the district court’s Rule 60(b)(3)

ruling.

                    b.     Rule 60(b)(5) and Rule 60(b)(6)

      Kirby also argues that the district court erred by not addressing its Rule 60(b)(5)

and (b)(6) arguments. Rule 60(b)(5) allows a court to provide relief from judgment

where “it is no longer equitable that the judgment should have prospective

application.” Kirby argues that the alleged inconsistencies arising from Frederick II

and III make enforcement of the jury’s verdict in Frederick I no longer equitable. In

fact, the district court did address this argument and found that Kirby presented no

evidence that cast doubt on the integrity of Frederick I. We conclude that the district

court correctly rejected Kirby’s Rule 60(b)(5) argument.

      Rule 60(b)(6) allows a court to provide relief from judgment for “any other

reason justifying relief from the operation of the judgment.” Federal courts grant

relief under Rule 60(b)(6) only for extraordinary circumstances. See High v. Zant,

916 F.2d 1507, 1509 (11th Cir. 1990). Kirby contends that it deserves relief because

Frederick’s counsel, during closing arguments in Frederick I, stated that this case was

Frederick’s last and only chance to receive compensation for his injuries. We agree

with the district court that this comment may have been inappropriate, but that it is not


                                           20
sufficient to grant Rule 60(b)(6) relief. Kirby raises two additional arguments for

Rule 60(b)(6) relief, both of which are meritless and are more appropriately raised in

Frederick II and III as arguments for claim or issue preclusion. Thus, we affirm the

district court’s denial of Kirby’s Rule 60(b) motion.

      B.     Cross-Appeals by Frederick

                    1.     Penalty Wages Claim

      Frederick argues on appeal that the district court incorrectly interpreted 46

U.S.C. § 10504 when it concluded that he was not entitled to collect penalty wages.

This court reviews a district court’s statutory interpretation de novo. See United States

v. Pemco Aeroplex, Inc., 195 F.3d 1234, 1236 (11th Cir. 1999)(en banc). In

addressing Frederick’s contention, we must first determine the type of voyage the

Champion undertook. Only after that determination can we examine the appropriate

penalty wage statute to determine Frederick’s rights and whether an exception to the

penalty wage statute excludes Frederick’s claim.

      First, Frederick argues that the district court incorrectly held that the Champion

was on a coastwise voyage. Instead, Frederick avers that the Champion was on a

coasting voyage. Frederick’s attempted distinction between a coasting voyage and a

coastwise voyage is irrelevant. The prior penalty wage statute, 46 U.S.C. § 596,

provided for a right to collect penalty wages in coasting voyages, but section 544


                                           21
specifically excluded seamen on coastwise voyages from collecting penalty wages.

The current statute, however, does not distinguish between coasting and coastwise

voyages. Instead, the current statute, which does not mention coasting voyages,

establishes three designations for voyages: foreign, intercoastal, and coastwise.

       Under the current statutory scheme, the Champion was on a coastwise voyage.

The statute defines a coastwise voyage as “a voyage between a port in one State and

a port in another State (except an adjoining State)” and excludes from the definition

voyages between a U.S. port on the Atlantic Ocean and a U.S. port on the Pacific

Ocean. See 46 U.S.C. §§ 10301(a), 10501(a). The Champion traveled from

Mississippi to Connecticut – a coastwise voyage.

       Section 10504 provides a right to penalty wages for seamen on a coastwise

voyage. The penalty wage provision states that a master must pay a seaman the

balance of wages due within two days of termination, otherwise the master must pay

the seaman two days’ wages for each day payment is delayed. See 46 U.S.C. §

10504(b) & (c). This section, however, excludes seamen on “a vessel engaged in

coastwise commerce” from this penalty wage provision.7 See 46 U.S.C. §10504(d)(1).

   7
   Title 46 U.S.C. § 10504 in pertinent part states:
               (b) The master shall pay a seaman the balance of wages due the seaman
      within 2 days after the termination of the agreement required by section 10502 of this
      title or when the seaman is discharged, whichever is earlier.
               (c) When payment is not made as provided under subsection (b) of this
      section without sufficient cause, the master or owner shall pay the seaman 2 days’

                                               22
        Section 10504 does not provide a separate definition for “coastwise commerce,”

but section 10501 provides a clear definition of “coastwise.” As previously stated, the

Champion falls under section 10501's definition of “coastwise.” Now, we need only

determine whether the Champion engaged in commerce. At a minimum, commerce

includes the transportation of goods between states. See Black’s Law Dictionary 263

(7th ed. 1999)(defining “commerce” as “the exchange of goods and services,

especially on a large scale involving transportation between cities, states and

nations”)(emphasis added). The Champion engaged in commerce because it

transported heating oil between Mississippi and Connecticut. Thus, the district court

correctly held that the Champion engaged in coastwise commerce.8




        wages for each day payment is delayed.
               (d) Subsections (b) and (c) of this section do not apply to:
                      (1) a vessel engaged in coastwise commerce.


    8
     Frederick cites Solvang v. M/T Plan Kristine, 1994 A.M.C. 1133 (S.D. Tex. 1993), for the
proposition that the coastwise commerce exception does not include a trip from a U.S. port on the
Gulf Coast to a U.S. port on the Atlantic coast. See id. at 1138. The Solvang court explained that
the coastwise commerce exception differs from a coastwise voyage in that the exception only
excludes vessels that work on sheltered bodies of water. See id. As a result, the coastwise exception
did not apply because the “Gulf of Mexico is not a sheltered body of water such as a harbor or
coastal waterway and is not within the coastwise commerce exception.” See id. (citing Carson v.
Gulf Oil Corp., 123 So. 2d 35, 39 (Fla. App. Ct. 1960)). Section 10501, however, does not refer to
sheltered bodies of water or harbors in its definition of coastwise. Instead, Congress clearly
intended the coastwise commerce exception to cover coastwise voyages engaged in commerce.
Thus, we conclude that these cases are unpersuasive.

                                                 23
       We recognize that the exclusion of “a vessel engaged in coastwise commerce”

from the right to recover penalty wages effectively eliminates the benefit of the

penalty wage provision for coastwise voyages.9 See Dunham v. M/V Marine Chemist,

812 F.2d 212, 215 (5th Cir. 1987)(holding that a claim for penalty wages, pursuant to

section 10504, no longer applies to coastwise voyages). The legislative history

surrounding this chapter sheds light on this contradiction.

       Congress re-codified the shipping laws in 1983 in order to clarify and

reorganize a confusing collection of individual statutes enacted over a period of two

centuries. See H. Rep. No. 98-338, at 113 (1983), reprinted in 1983 U.S.C.C.A.N.

924, 924. As part of this reorganization, Congress placed the laws regarding foreign

and intercoastal voyages into a different chapter than coastwise voyages.                       In

particular, Congress placed a penalty wage provision in both 46 U.S.C. § 10313,

which applies to foreign and intercoastal voyages, and 46 U.S.C. § 10504, which

applies to coastwise voyages. After the reorganization, Congress noticed that the new

penalty wage provisions did not include the coastwise exception found in the prior




  9
    We note that there may be instances in which a vessel is on a coastwise voyage, but not engaged
in commerce, and accordingly, not engaged in coastwise commerce. However, we believe that such
a situation would arise rarely, if at all, and perhaps this is a distinction without a difference.
Moreover, we do not have to decide that issue in this case because we hold that the Champion
engaged in commerce.

                                                24
law. 10 To rectify this error, Congress amended 46 U.S.C. § 10504(d)(1) to exclude

vessels engaged in coastwise commerce, and in the amendment’s legislative history,

expressly explained its rationale for amending the statute by stating that:

        Coastwise commerce encompasses voyages of vessels from one place in
        the United States to another, including voyages on the Great Lakes, but
        not voyages from the Atlantic Coast to the Pacific Coast. . . . Under
        prior law (former 46 U.S.C. 544), vessels engaged in coastwise
        commerce were exempt from this requirement. However, in the
        codification of the shipping laws in title 46, . . . this exemption was
        inadvertently omitted. . . . This section [10504(d)(1)] would simply
        restore the coastwise . . . commerce exemption so that the affected
        vessels will not have to disrupt the pay and accounting systems already
        in place just because of an oversight in the codification of title 46, United
        States Code.

S. Rep. No. 99-26, at 4 (1985), reprinted in 1985 U.S.C.C.A.N. 25, 28.

Thus, Congress intended this odd statutory structure.




   10
      The prior statute, 46 U.S.C. § 596, provided in pertinent part:
        The master or owner of any vessel making coasting voyages shall pay to every
        seaman his wages within two days after the termination of the agreement under
        which he was shipped, or at the time such seaman is discharged, whichever first
        happens; and in case of vessels making foreign voyages, or from a port on the
        Atlantic to a port on the Pacific, or vice versa, within twenty-four hours after the
        cargo has been discharged, or within four days after the seaman has been discharged
        . . . . Every master or owner who refuses or neglects to make payment in the manner
        hereinbefore mentioned without sufficient cause shall pay to the seaman a sum equal
        to two days’ pay for each and every day during which payment is delayed beyond the
        respective periods.
Title 46 U.S.C. § 544 provided that “[n]one of the provisions in sections . . . 591-596 . . . of this title
shall apply to sail or steam vessels engaged in the coastwise trade, except the coastwise trade
between the Atlantic and Pacific coasts . . . .”


                                                    25
       In sum, we hold that “a vessel engaged in coastwise commerce” is a vessel

engaged in commerce that travels between a U.S. port in one State and a U.S. port in

another non-adjacent State, except a vessel that travels between a U.S. port on the

Atlantic Coast and a U.S. port on the Pacific Coast. We also hold that the Champion

was on a coastwise voyage and engaged in coastwise commerce. As a result, we

affirm the district court’s holding that Frederick could not collect under the penalty

wage statute.

             2.     Applicable Daily Maintenance Rate

      Frederick contends that the district court erred in holding that the collective

bargaining agreement (“CBA”) rate of $15 per day for maintenance applies even

though he spent substantially more for maintenance. This circuit has not addressed

this issue, and the other federal circuit courts that have are divided.

      The duty to pay maintenance is imposed by “general maritime law.” Cortes v.

Baltimore Insular Line, Inc., 287 U.S. 370, 370-71 (1932). The right of maintenance

consists of the right to payments sufficient to provide a seaman with food and lodging

comparable to the kind received aboard ship. See Calmar Steamship Corp. v. Taylor,

303 U.S. 525, 528 (1938). This duty attaches once the seaman enters the service of

a ship. See De Zon v. American President Lines, 318 U.S. 660, 667 (1943). No




                                           26
private agreement is competent to abrogate the shipowner’s duty to pay maintenance.11

See id.

        Relying heavily on the principle stated in De Zon, the Third Circuit’s minority

position holds that a CBA maintenance rate does not bind a seaman, if the seaman can

prove higher daily expenses. See Barnes v. Andover Co., L.P., 900 F.2d 630, 640 (3rd

Cir. 1990)(“[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.”). The Barnes court noted that a CBA could set the maintenance level so low as

to abrogate a seaman’s right to maintenance and thus violate De Zon. See id. at 637.

Furthermore, the court held that neither the federal labor laws nor their underlying

policies preempted the common law right to maintenance. See id. at 639-40. The

Third Circuit therefore concluded that the traditional doctrine allowing for

maintenance could require a court to ignore the terms of a CBA. See id. at 640.




   11
     The Supreme Court, in Calmar, summarized the policy rationale underlying this duty:
       The reasons underlying the rule, to which reference must be made in defining it, are
       those enumerated in the classic passage by Mr. Justice Story in Harden v. Gordon,
       C.C., Fed.Cas.No. 6047: The protection of seamen, who, as a class, are poor,
       friendless and improvident, from the hazards of illness and abandonment while ill in
       foreign ports; the inducement to masters and owners to protect the safety and health
       of seamen while in service; the maintenance of a merchant marine for the
       commercial service and maritime defense of the nation by inducing men to accept
       employment in an arduous and perilous service.
303 U.S. at 528.

                                               27
      We conclude that the Third Circuit’s minority position is unpersuasive, and

instead, join the majority of circuit courts in holding that where a CBA fixes a

maintenance rate, the court should accept it as reasonable. See Baldassaro v. United

States, 64 F.3d 206, 212 (5th Cir. 1995)(enforcing rate of $8 set in CBA); Al-Zawkari

v. American S.S. Co., 871 F.2d 585, 588 (6th Cir. 1989)(same); Macedo v. F/V Paul

& Michelle, 868 F.2d 519, 522 (1st Cir. 1989)(enforcing rate of $10 set in CBA);

Gardiner v. Sea-Land Serv., Inc., 786 F.2d 943, 948 (9th Cir. 1985)(enforcing rate of

$8 set in CBA). The majority position agrees with the minority in that labor law does

not preempt the common law maritime right of maintenance. See Gardiner, 786 F.2d

at 948. The majority, however, differs in holding that the changed circumstances of

unionized seamen undercut the rationale supporting the traditional right to

maintenance and cure. See Macedo, 868 F.2d at 522 (citing Gardiner, 786 F.2d 943).

      Moreover, the broad labor policies which undergird federal labor law, as well

as the nature of the collective bargaining process, require adherence to the CBA. See

Gardiner, 786 F.2d at 948-49. “Congress viewed collective bargaining as a key

instrument in its effort to promote industrial peace . . . . [T]his court will not lightly

embrace the repudiation of contractual obligations enumerated in a collective

bargaining agreement and will choose the rule that will promote the enforcement of

collective bargaining agreements.” Baldassaro, 64 F.3d at 212-13 (quoting Gardiner,


                                           28
786 F.2d at 948)(citations omitted). Although the right to maintenance is a common

law right, its rate may be subject to the negotiation process. See Gardiner, 786 F.2d

at 948. In considering the negotiation process, we note that, as in Baldassaro and

Gardiner, Frederick makes no allegations that the CBA as a whole is unfair or that the

union did not adequately represent him. During the negotiation process, the right of

maintenance is but one of many issues over which the parties negotiate. See id. As

a result, a court should not examine the adequacy of the maintenance rate in isolation

“because the determination of its adequacy in relation to the whole scheme of benefits

has already been made by the union and the seamen who voted for the contract.”

Baldassaro, 64 F.3d at 213 (quoting Gardiner, 786 F.2d at 949)(citations omitted).

      Frederick also argues that this court should create an exception to the majority

position because Kirby acted inequitably by failing to pay weekly maintenance to him

as required by the CBA. Instead, five months after the injury, Kirby paid Frederick

a lump-sum. Kirby counters by asserting that it had trouble locating Frederick, who

was at his sick mother’s home, and that once Kirby found him, Frederick informed

Kirby that he would advise Kirby at a later date as to the proper time and location to

send the money. Thus, Kirby contends that it acted equitably and made a good faith

effort to satisfy the CBA. The jury agreed with Kirby and held that Kirby did not

willfully and arbitrarily fail to pay maintenance and cure to Frederick. We need not


                                         29
decide whether to create an exception to the majority position because we conclude

that Kirby acted equitably. Consequently, we hold that where a CBA fixes a

maintenance rate, the CBA rate applies even if the seaman spent substantially more

for maintenance. Thus, we affirm the district court’s decision to apply the CBA’s

daily maintenance rate of $15.

                                   III. Conclusion

      The jury’s award of damages for unearned wages, maintenance, and cure in the

amount of $525,069 exceeds the maximum amount supported by the evidence. The

evidence supports a maximum award of $107,947.43 only. As a result, we reverse

that part of the district court’s judgment entered on the jury’s verdict and remand this

case to the district court with instructions to order a remittitur reducing the award of

damages to $107,947.43, or, at Frederick’s option, grant a new trial on the question

of damages. We affirm the judgment as to all remaining issues.

AFFIRMED in part, REVERSED in part, AND REMANDED.




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