March 27th, 1998

Precedential

96-5158

                                United States Court of Appeals,

                                        Eleventh Circuit.

                                          No. 96-5158.

                             Huseyin AKSOY, Plaintiff-Appellant,

                                                v.

  APOLLO SHIP CHANDLERS, INC., Ocean Ship Services Limited, Defendants-Appellees.

                                        March 27, 1998.

Appeal from the United States District Court for the Southern District of Florida. (No. 95-632-CV-
MM), K. Michael Moore, Judge.

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 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.

                                   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


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       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 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


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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 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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