Leep

Plaintiff and appellant Ernest Leep (appellant) appeals from a summary judgment in favor of defendant and respondent American Ship *1032 Management, LLC (respondent) in appellant’s action for unearned wages. Appellant claims that he was injured aboard respondent’s vessel, the M/V President Truman (Truman), during a 90-day employment engagement and that respondent owes him unearned wages for the entire 90-day period. Appellant relies on a 1994 memorandum of understanding between respondent and appellant’s union, stating that “Second Assistant Engineer and Third Assistant Engineer rotary assignments shall be for ninety (90) days.” Appellant was assigned to respondent’s vessel as a third assistant engineer pursuant to a union dispatch slip stating that his assignment was for a “90 day rotary.” Respondent asserts that the collective bargaining agreement provides for “maintenance and cure as customary” and that customarily an injured seaman is only entitled to wages to the end of a voyage. Respondent argues that there was no voyage due to a labor dispute, and that appellant was properly paid the correct amount through the date he left the vessel because of an injury.

We hold…

I concur in the judgment. I write separately to emphasize the extremely difficult nature of this case created by the concession in plaintiff’s separate statement of undisputed facts that there was no contract for a specified term. Plaintiff’s opposition separate statement can be read to explicitly admit there was no agreement for a “definite period of time.” Under virtually every conceivable set of circumstances, such a concession would require entry of summary judgment. As my colleagues aptly note, the duty to provide maintenance and cure requires payment of wages throughout the period of employment and disability. (The Osceola (1903) 189 U.S. 158, 175 [ 47 L.Ed. 760 , 23 S.Ct. 483 ]; Griffin v. Oceanic Contractors, Inc. (5th Cir. 1981) 664 F.2d 36, 39 .) Hence, if there is no period of employment during which plaintiff was unable to work, there was no duty to pay the unpaid wages sought in the third cause of action.

However, there is no binding concession concerning a period of employment in this very unusual case. The exact alleged undisputed fact posited in defendant’s separate statement is as follows: “3. Plaintiff did not sign ship’s articles, and on October 14, 2003, he…

Plaintiff and appellant Ernest Leep (appellant) appeals from a summary judgment in favor of defendant and respondent American Ship Management, LLC (respondent) in appellant's action for unearned wages. Appellant claims that he was injured aboard respondent's vessel, the M/V President Truman (Truman), during a 90-day employment engagement and that respondent owes him unearned wages for the entire 90-day period. Appellant relies on a 1994 memorandum of understanding between respondent and appellant's union, stating that "Second Assistant Engineer and Third Assistant Engineer rotary assignments shall be for ninety (90) days." Appellant was assigned to respondent's vessel as a third assistant engineer pursuant to a union dispatch slip stating that his assignment was for a "90 day rotary." Respondent asserts that the collective bargaining agreement provides for "maintenance and cure as customary" and that customarily an injured seaman is only entitled to wages to the end of a voyage. Respondent argues that there was no voyage due to a labor dispute, and that appellant was properly paid the correct amount through the date he left the vessel because of an injury.

We hold that…