concurring and dissenting:

I concur in that portion of the majority opinion that concludes federal labor statutes have not preempted federal maritime common law. I respectfully dissent, however, from the majority’s conclusion that a union can bargain away the individual seaman’s common law right to maintenance by agreeing to a wholly inadequate figure as a daily maintenance rate.

The ancient right to maintenance originated in medieval sea codes. G. Gilmore & C. Black, The Law of Admiralty § 6-6, at 281 (2d ed. 1975). The purposes of maintenance are to protect “poor and friendless” seamen from the broad variety of hazards encountered at sea, to encourage seamen “to engage in perilous voyages with more promptitude, and at lower wages,” and to promote marine commerce. Vella v. Ford Motor Co., 421 U.S. 1, 3-4 , 95 S.Ct. 1381, 1382-83 , 43 L.Ed.2d 682 (1975); Aguilar v. Standard Oil Co., 318 U.S. 724, 727 , 63 S.Ct. 930, 932 , 87 L.Ed.2d 1107 (1943); G. Gilmore & C. Black, supra, § 6-6, at 281 (quoting Harden v. Gordon, 11 F.Cas. 480, 483 (C.C.D.Me.1823) (No. 6047)). The doctrine imposes liability regardless of fault and arises out of the employment relationship. Aguilar, 318 U.S. at 730 , 63 S.Ct. at 933-34 .

The duty to pay maintenance is imposed by the general maritime law. Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 371 , 53 S.Ct. 173, 174 (1932); 2 M. Norris, The Law of Seamen § 26:8, at 20 (4th ed. 1985). No private agreement is competent to abrogate the shipowner’s duty to pay maintenance. De Zon v. American President Lines, Ltd., 318 U.S. 660, 667 , 63 S.Ct. 814, 818 (1943); Cortes, 287 U.S. at 371 , 53 S.Ct. at 174 . The right to maintenance consists of the right to payments sufficient to provide the seaman with food and lodging of the kind and quality received aboard ship. Calmar Steamship Corp. v. Taylor, 303 U.S. 525, 528 , 58 S.Ct. 651, 653 , 82 L.Ed. 993 (1938). These Supreme Court cases that recognize the broad reach of maintenance and its historic origins rooted in the genesis of maritime law compel my dissent. If changes in the law of maintenance are to be effected, such changes should originate with Congress, not this court.

Although the majority concludes that “federal labor statutes have not preempted maritime law [relating to maintenance],” it nonetheless allows a union to bargain away *951 the individual seaman’s right to maintenance. It requires only that the collective bargaining agreement include an “express referencé” to maintenance. In effect, as long as the parties to a collective bargaining agreement formally designate some nominal figure as a daily maintenance rate, a disabled seaman cannot recover even the cost of inexpensive food and lodging.

A number of incongruities and inequities may result from the majority’s holding. For example, seamen with favorable bargaining agreements that contain no maintenance terms would be entitled to receive the full cost of their food and lodging when injured or ill, while those with less favorable bargaining agreements that specify a nominal maintenance rate would receive only that inadequate maintenance. Or union seamen and non-union seamen working for the same employer might receive different maintenance rates. Since the premise underlying maintenance is that seamen and their unions are unable or too improvident to protect disabled seamen’s interests adequately, it is anomalous for this court to rubberstamp any bargained-for amount as long as it is labelled “maintenance.”

I find the district court’s approach in the case at bar, following its decision in Rutherford v. Sea-Land Service, Inc., 575 F.Supp. 1365 (N.D.Cal.1983), to be sound. The district court in Rutherford held that a seaman should be permitted to challenge a bargained-for maintenance rate if he can demonstrate that it is “inadequate to provide [him] with food and lodging of the kind and quality he would have received aboard [his] vessel ... according to his circumstances (i.e., where he recuperated ...).” Id. at 1374 . If a seaman cannot demonstrate that the bargained-for maintenance rate falls below this minimal threshold, then courts should not repudiate the bargained-for rate. As long as the maintenance rate on which the parties have agreed equals or exceeds this minimum threshold of adequacy, courts should treat it as a legitimate subject of collective bargaining that should not be disturbed.

Fed.R.Evid. 201(b) permits a court to take judicial notice of a fact if it is “not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” The district court in Rutherford reviewed a number of recent cases finding $8.00 per day to be inadequate and awarding higher maintenance amounts based on actual expenses. See id. at 1370 . Based on these authorities, the district court concluded that “it is now generally recognized that $8.00 per day is no longer a sufficient sum for a seaman to secure lodging and three meals.” Id. The district court therefore appropriately took judicial notice that a maintenance rate of $8.00 per day in San Francisco is inadequate. Id. I thus conclude that the seaman is not bound by the maintenance provision in the collective bargaining agreement. I would affirm the district court.