June 13, 2012
Warren King, et al. v. NCL Bahamas, Ltd.
Response in Opposition to Motion for Summary Judgment
Our attorneys have fought for seaman’s rights since 1971. This includes making sure that seaman working on cruise ships receive fair compensation. In this case the Plaintiffs, a group of room stewards, allege that Norwegian Cruise Lines enacted a scheme to deprive its employees of the entirety of their wages. The Plaintiffs seek those wages and penalty wages to which they are entitled under the Seaman’s Wage Act. The Defendant argues that the claims presented by the Plaintiffs are not cognizable under the law. In response the Plaintiffs point out that in an indentical case, the Southern District of Florida has already found that the claims are valid. Additionally, the Plaintiffs lay out the evidence that supports their claims, proving that an issue of fact remains for determination at trial.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 11-21677-CIV-ZLOCH
WARREN KING, et al.,
NCL (BAHAMAS) LTD.,
PLAINTIFFS’ RESPONSE IN OPPOSITION TO NCL’S MOTION FOR SUMMARY JUDGMENT
COME NOW, the Plaintiffs, WARREN KING, et al. (“Plaintiffs”), by and through undersigned counsel, and hereby respond in opposition to NCL (BAHAMAS) LTD.’S (“NCL”) Motion for Summary Judgment. [D.E. 96]. In support thereof, the Plaintiffs allege as follows:
NCL’S MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED IN ITS ENTIRETY BECAUSE JUDGE ADALBERTO JORDAN ALREADY DENIED THE ESSENTIALLY IDENTICAL MOTION IN THE WALLACE MATTER. THE CRUX OF THIS MATTER IS A DISPUTED ISSUE OF MATERIAL FACT AS TO WHETHER THE HIRING OF HELPERS ON EMBARKATION DAY WAS A CHOICE OR A REQUIREMENT.
1. This case involves a labor dispute between NCL (BAHAMAS) LTD. (hereinafter “NCL”) and several of its Senior Stateroom Stewards regarding NCL’s failure to pay the stewards their full wages between May 14, 2006 and June 14, 2009.
2. At all times material, NCL willfully and unreasonably created a scheme which saved NCL millions of dollars at the sole expense of its senior stateroom stewards. In short, NCL assigned Plaintiffs an amount of work which Plaintiffs – on their own – could not be feasibly complete within the timeframe required by NCL, without the use of assistance or help from other crewmembers (hereinafter “helpers”).
Thus, in order to be able to complete the work assigned to them, Plaintiffs were 1) forced to hire helpers and 2) forced to pay for these helpers out of their own earned wages. This unreasonable scheme was practiced fleet wide, and effectively deprived this class of persons of roughly 25% of their earned wages.
3. Because at all times material during the claim period, NCL did not pay for these helpers, but rather required Plaintiffs to pay for helpers out of their own pockets; Plaintiffs were deprived of their full wages in violation of the Seaman’s Wage Act, 46 U.S.C. 10313 (Count II). NCL’s conduct also constituted a breach of Plaintiffs’ employment agreements (Count III), and in violation of the Covenant of Good Faith and Fair Dealing (Count IV).
1. Initially, Plaintiffs were unnamed proposed class members, and therefore passive beneficiaries in the matter of Wallace, et. al. v. NCL (Bahamas) Ltd., 09-21814-CIV-JORDAN (hereinafter “the Wallace case”). 
2. Class certification was ultimately denied in the Wallace case on December 30, 2010.
3. As a result of the Court’s denial of class certification, on April 6, 2011, fifty-seven (57) former proposed class members – the named Plaintiffs in this matter –moved to intervene into the Wallace case as formal parties. Although the Court held that the Motion for Intervention was timely, the Court denied (on other grounds) Plaintiffs’ Motion for Intervention on May 10, 2011.
4. Therefore, to protect their interests, these former proposed class members in the Wallace, filed their own separate lawsuit – the present case.
C.In Wallace, et. al. v. NCL (Bahamas) Ltd., 09-21814-CIV-JORDAN, the Honorable Judge Jordan denied NCL’s Motion for Summary Judgment as to identical claims.
The claims of the Plaintiffs in Wallace, like the Plaintiffs in this case, consisted of the same operative facts and the same causes of action: 1) that NCL assigned Plaintiffs an amount of work which Plaintiffs – on their own – could not be feasibly complete within the timeframe required by NCL, without the use of assistance or help from other crewmembers (hereinafter “helpers”); and 2) because Plaintiffs were required to pay for these helpers out of their own pockets; Plaintiffs were deprived of their full wages in violation of the Seaman’s Wage Act, 46 U.S.C. s.10313, in breach of their employment and in violation of the Covenant of Good Faith and Fair Dealing.
With respect to the Wallace Plaintiffs’ claims as to Count II, Failure to Pay Wages in violation of the Seaman’s Wage, the Court denied NCL’s Motion for Summary Judgment, holding in part:
NCL’s final arguments with regards to all of the voyages are that the Plaintiffs have not established that NCL failed to pay them their full wages or that NCL failed to pay them their full wages without sufficient cause. Viewing evidence and drawing inferences in light most favorable to the plaintiffs, I disagree. The Plaintiffs have put forth considerable evidence that the practice of hiring help was not only condoned but explicitly required by NCL. The plaintiffs have testified that their NCL supervisors told them to hire additional helpers and to pay those helpers out of their own wages … The Plaintiffs have therefore put forth sufficient evidence to raise a material issue of fact as to whether NCL hadan unwritten policy refusing to allow the plaintiffs to keep their full wages, such that NCL de facto refused to pay full wages.
NCL makes much of the fact that it handed the full wage to the Plaintiffs before (viewing the evidence in light most favorable to the Plaintiffs) forcing the plaintiffs to turn over a portion of their wage to their helpers. But allowing such slights of hand would eviscerate the purpose of the Seamen’s Wage Act. Consider, for instance, if it were NCL’s policy to pay their crewmembers their full wages via direct deposit, but then, again through automatic withdrawal, simultaneously remove a portion of those wages to pay the helpers. This would be the electronic equivalent of what the Plaintiffs allege, and NCL could not reasonably argue that this would constitute paying the seamen their full wage […]. Accordingly, I think there is a material issue of fact as to whether NCL had an unwritten policy of requiring the Plaintiffs to hire extra workers such that they were denied their full wages.
See Exhibit “3,” Order Denying in Part, NCL’s Motion for Summary Judgment, Wallace, et. al. v. NCL (Bahamas) Ltd., 09-21814-CIV-JORDAN, D.E. 222 at pg. 9. (Emphasis added).
Notably, when the Plaintiffs in this matter, filed in the Wallace case (as former proposed class members) a Motion to Intervene in Wallace, in the Order denying intervention the Court held:
In my order denying NCL’s Motion for Summary Judgment, I held that a policy that forced employees to hire helpers would raise a Seaman’s Wage Act claim … I then denied the Motion because there was a material issue of fact as to whether NCL had an unwritten policy requiring the Plaintiffs to hire extra workers. [Id.] Here, I have already determined the legal issue in the putative intervenors’ and plaintiffs’ favor; only the factual issues survive.
See Exhibit “5,” Order Denying Motion to Intervene, Wallace, et. al. v. NCL (Bahamas) Ltd., 09-21814-CIV-JORDAN D.E. 295, pg. 3, citing D.E. 222, at pg. 9.
See Exhibit “4,” Order Denying in Part NCL’s Motion to Dismiss, Wallace, et. al. v. NCL (Bahamas) Ltd., 09-21814-CIV-JORDAN D.E. 223, at pg. 4.
Later, the Court denied NCL’s Motion for Summary Judgment as to Count IV, Breach of the Covenant of Good Faith and Fair dealing, holding in part:
In claiming that Count IV should be denied, NCL advances two arguments. The first argument, that Count IV is duplicative of Counts II and III, was disposed of in the order denying NCL’s motion to dismiss Count IV. Accordingly, I will not revisit it here […]. Count IV remains insofar as it relates to failure to pay full wages.
As shown herein, just as in Wallace, here the Plaintiffs have considerable record evidence that the practice of hiring additional help was not only condoned but required by NCL. Thus, the Plaintiffs have sufficient evidence to raise a material issue of fact as to whether NCL had an unwritten policy of refusing to allow the plaintiffs to keep their full wages, such that NCL de facto refused to pay full wages.
II.THE PLAINTIFFS HAVE PUT FORTH CONSIDERABLE EVIDENCE THAT THE PRACTICE OF HIRING ADDITIONAL HELP WAS NOT ONLY CONDONED BUT REQUIRED BY NCL. THE PLAINTIFFS HAVE THEREFORE PUT FORTH SUFFICIENT EVIDENCE TO RAISE A MATERIAL ISSUE OF FACT AS TO WHETHER NCL HAD AN UNWRITTEN POLICY OF DEPRIVING THE PLAINTIFFS OF THEIR FULL WAGES, IN VIOLATION OF THE SEAMAN’S WAGE ACT AND THE PLAINTIFFS’ EMPLOYMENT CONTRACTS.
1. Standard of Review.
Summary judgment can be rendered only if the summary judgment record shows that: (1) there is no genuine issue, (2) as to any material fact, and (3) the moving party is entitled to judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A “genuine issue” exists (and, thus, summary judgment is improper) when a rational fact finder, considering the evidence in the summary judgment record, could find in favor of the non-moving party. See Ricci v. DeStefano, 129 S. Ct. 2658 (2009). A fact is “material” if it might affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).
The Court should deny summary judgment when a genuine issue of material fact remains to be tried, or were the moving party is not entitled to a judgment as a matter of law. See Rule 56 advisory committee note to 2007 amendments. The court also may not decide the motion on the basis of clearly erroneous findings of fact, an improper application of the law, or an erroneous legal standard. See In re Brown, 342 F. 3d 620, 633 (6th Cir. 2003). The party moving for summary judgment always has the burden of persuasion on such a motion. See RCO Industries Limited v. Seaboard Coast Line Railroad Company, 644 F. 2d 424, 428 (5th Cir. 1981). (“burden of proof is on the party seeking summary judgment and all reasonable doubts as to existence of a genuine issue of material fact must resolve against the movant”). If the moving party meets its prima facie burden, then the burden of going forward shifts to the non-moving party to show, by affidavit or otherwise, that a genuine issue of material fact remains for the fact finder to resolve. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Beard v. Banks, 548 U.S. 521, 529 (2006).
In ruling on a motion for summary judgment the court should never weigh the evidence. See Baranski v. Fifteen Unknown Agents of Bureau of Alcohol, Tobacco and Firearms, 452 F. 3d 433, 451 (6th Cir. 2006). Further, the Court should not weigh the credibility of witnesses or other evidence in ruling on a motion for summary judgment, as those functions are reserved for the fact finder at trial. Id. at 451. Instead, the court’s role under Rule 56 is narrowly limited to assessing the threshold issue of whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). Thus, the evidence of the non-moving party will be believed as true, all doubts will be resolved against the moving party, all evidence will be construed in light most favorable to the non-moving party, and all reasonable inferences will be drawn in the non-moving party’s favor. See Crawford v. Metropolitan Gov’t of Nashville & Davidson County, 129 S. Ct. 846, 849 n.1 (2009).
2. Count I: In light of Defendant’s record stipulation that it will not seek arbitration of the Plaintiffs claims; Plaintiffs agree that Count I is moot.
In Count I, the Plaintiffs seek a declaration that the arbitration provision that the arbitration provision contained in the collective bargaining agreement. In its Motion for Summary Judgment [D.E. 96], NCL has stipulated on the record as follows: “NCL has not sought arbitration of the claims these Plaintiffs have pleaded in the Complaint and, for the record, NCL will not seek arbitration of these Plaintiffs’ claims. Plaintiffs’ interpret this record statement by NCL was a waiver of arbitration of these claims. To the extent that this is the case, Plaintiffs agree that Count I is moot.
3.Count II: This Honorable Court should deny NCL’s Motion for Summary Judgment as to Count II (Failure to Pay Wages in Violation of the Seaman’s Wage Act. The Plaintiffs have put forth considerable evidence that the practice of hiring additional help was not only condoned but required by NCL. The Plaintiffs have therefore put forth sufficient evidence to raise a material issue of fact as to whether NCL had an unwritten policy of depriving the Plaintiffs of their full wages, in violation of the Seaman’s Wage Act.
A. A policy that forces employees to hire helpers raises a Seaman’s Wage Act claim. Because at all times material, NCL had an unwritten policy of requiring the Plaintiffs to hire helpers, such that they were denied their full wages, NCL’s conduct was in violation of the Seaman’s Wage Act.
The Seaman’s Wage Act, codified under 46 U.S.C. §10313, provides, in part:
(f) At the beginning of a voyage, the master shall pay each seaman the balance of wages due the seaman within 24 hours after the cargo has been discharged or within 4 days after the seaman is discharged, whichever is earlier. When a seaman is discharged and final payment of wages is delayed for the period permitted by this subsection, the seaman is entitled at the time of discharge to one-third of the wages due the seaman.
(g)When payment is not made as provided under subsection (f) of this section without sufficient cause, the master or owner shall pay to the seamen 2 days’ wages for each day payment is delayed.
(i) This section applies to a seaman on a foreign vessel when in a harbor of the United States. The Courts are available to the seaman for the enforcement of this section.
The statute is straight forward in terms that it provides for 1) reimbursement of wages withheld (under section “f”), and 2) penalty wages amounting to 2 days wages for each day payment is delayed (under section “g”). See Castillo v. Spiliada Maritime Corporation, 937 F. 2d 240 (5th Cir. 1991):
Historically, seamen have enjoyed a special status in our judicial system. They enjoy this status because they occupy a unique position. A seaman isolated on a ship on the high seas is often vulnerable to the exploitation of his employer. Morever, there exists a great inequality of bargaining position between large shipowners and unsophisticated seamen. Shipowners generally control the availability and terms of employment. To shield seamen against unfair conduct by shipowners, Congress enacted special wage protection statutes, See 46 U.S.C. §§10313, 10504.
(a). Unlawful withholding under section (f).
Regarding section (f), the master or owner must have refused or failed to pay the seaman his wages within the periods specified. To this end, as set forth above, in Wallace this Honorable Court has found that “[a] policy that forces employees to hire helpers raises a Seaman’s Wage Act claim.” See Exhibit “5,” Wallace, et. al. v. NCL (Bahamas) Ltd., 09-21814-CIV-JORDAN, D.E. 295, pg. 3, citing D.E. 222, at pg. 9. (“In my order denying NCL’s Motion for Summary Judgment, I held that a policy that forced employees to hire helpers would raise a Seaman’s Wage Act claim … I then denied the Motion because there was a material issue of fact as to whether NCL had an unwritten policy requiring the Plaintiffs to hire extra workers.”) See also Exhibit “3,” Order Denying, in part, NCL’s Motion for Summary Judgment, Wallace , et. al. v. NCL (Bahamas) Ltd., 09-21814-CIV-JORDAN, D.E. 222, at pg. 9.
(i).The Plaintiffs were entitled to receive $2796.00 per month.
As set forth in the pay scales incorporated into the CBA, Plaintiffs were contractually entitled to receive $2,796.00 per month during the claim period. (Plaintiffs’ Response to Defendant’s FACTS10(d)). 
Despite being entitled to the amounts, because at all times material, Plaintiffs were required to pay helpers out of their own earned wages – due to NCL’s embarkation/turnover practices; Plaintiffs’ and the members of the class did not receive their full one hundred percent of their wages. Instead, out of the $2,800 they were entitled to keep, Plaintiffs and the members of the class paid out every month in excess of $600.00 to helpers, leaving them with an average of approximately $2,200 – far less than one hundred percent of their earned wages – and therefore an effective breach of their employment contracts by NCL. (Plaintiffs’ Response to Defendant’s FACTS11, pg. 3-4).
(ii). Unreasonably large workloads on embarkation day.
On Embarkation Day, between 2,500- 3,000 passengers from the previous cruise disembark, leaving behind approximately 1,000 dirty cabins. All of these cabins have to be cleaned for the 2,500- 3,000 new passengers boarding the vessel that same day. (Plaintiffs’ FACTS1 pg. 6).
During the claim period, on embarkation days, almost universally, Senior Stateroom Stewards were assigned 28 to 35 rooms. (Plaintiffs’ Response to Defendant’s FACTS13(a), pg. 4). In each of the rooms assigned, Plaintiffs were individually responsible for completion of an insurmountable amount of tasks, including:
Stripping and changing the linens of up to one-hundred (100) beds; checking leftovers or foreign items underneath hundreds of pieces of furniture; cleaning pantries; preparing and arranging folders containing materials and information for the new passengers boarding the vessel; dusting and polishing (surfaces, mirrors and windows); sanitizing phones; testing all electrical items in the room; replenishing amenities (water and flowers); vacuuming hallways; doing inventories on mini-bars (roughly 30 mini-bar items per cabin) and restocking mini-bar items in each room; cleaning and sanitizing hallways (ceilings, alleyways, ventilation ducts and exhaust ducts), among other tasks. On each embarkation day, Plaintiffs were also required to speak to new embarking passengers and answer any questions while performing their duties and to separate all of the trash collected into four separate trash bins (i.e. yellow, blue, gray and red). Depending on the material, Plaintiffs were required to collect it into a separate bag (i.e. paper and plastic in one bag, food in another bag). (Plaintiffs’ FACTS11 and 12 pg. 8).
The single biggest task to be performed by the Senior Stateroom Stewards was stripping and making beds. During the claim period, Senior Stateroom Stewards were responsible for making and stripping anywhere between 80-100 beds each embarkation day. Depending on the number of passengers in a given cabin, the beds could be configured in multiple single beds, or two single beds could be pushed together to make a double (King) bed. It took senior stateroom stewards approximately 8 minutes to strip and make a double bed to NCL’s standards. (Plaintiffs’ FACTS14 pg. 8).
Exhibits 16 and 17 are videos of an inspection conducted on the Norwegian Sky in May of 2010, during an embarkation day. The videos depict NCL stateroom stewards after the claim period stripping and making a bed. One video (Exhibit 17) depicts a stateroom steward making a bed on an embarkation day, and it took the stateroom steward four minutes and thirty seconds, to make one double bed. The second excerpt, (Exhibit 16) depicts a stateroom steward, also after the claim period, stripping a bed on an embarkation day. The video showed it took the stateroom steward one minute and thirty seconds to strip a double bed. Therefore, the videos showed the combination of stripping and making a bed takes a total of 6 minutes. (Plaintiffs’ FACTS15 pg. 9).
Thus, the record evidence shows that to complete just two of the tasks assigned to them on embarkation day (making and stripping beds), Plaintiffs spent required at least 8 hours.
Clyde Harbin, an Executive Housekeeper for NCL during the claim period, supervised the Senior Stateroom Stewards who worked under him. Harbin worked on the following vessels: the Norwegian Pearl, Norwegian Jewel, Norwegian Star and Norwegian Dawn. Harbin testified that in his experience (having been with NCL since 1991), it takes twenty minutes for a Senior Stateroom Steward to complete all tasks in each individual room on embarkation days. (Plaintiffs’ FACTS16 pg. 9). Thus, under Mr. Harbin’s own estimates, as Executive Housekeeper since 1991:
To complete 28 cabins on embarkation days, it takes: 560 minutes (28 cabins x 20 minutes per room) or 9. 33 hours (560 minutes ÷ 60 minutes). To complete 35 cabins on embarkation days, it takes: 700 minutes (35 x 20 minutes per room) or 11.66 hours (700 ÷ 60 minutes). In short, NCL’s Executive Housekeeper made clear that it would take somewhere between 9-11 hours to complete the assigned cabins on embarkation day. (Plaintiffs’ FACTS16 pg. 10).
(iii). Although the record shows that for a single Senior Stateroom Steward to finish all the rooms assigned to him, he or she needed at least 9 hours; during the claim period NCL required the Plaintiffs to finish all of their work within 4 hours. Therefore, NCL assigned Plaintiffs an amount of work, which Plaintiffs – on their own – could not be feasibly complete within the timeframe required by NCL, without the use of helpers.
During the claim period, the majority of work cleaning the passengers cabins had to be done between approximately 10:00 a.m. – 1:30 p.m.; less than four (4) hours to clean in excess of 30 rooms on embarkation day. This averages roughly 7 minutes per cabin. As a result, it was impossible for the Plaintiffs to finish – on their own – all of the tasks assigned (see paragraphs 11 and 12 below), in the 28 to 35 rooms assigned to them. The timeframe given to them was simply too short to be able to finish on their own the overwhelming amount of work assigned by NCL. (Plaintiffs’ FACTS9 pg. 7).
In support of this, the record evidence shows as follows: 1) Freestyle cruising was implemented by NCL to make NCL unique in the cruise industry. According to NCL, it is the only cruise line that offers freestyle cruising. (Plaintiffs’ FACTS2 pg. 6); 2) With freestyle cruising, it was NCL’s policy to allow passengers to remain in their cabins at their leisure on turnaround/embarkation days; 3) NCL describes this policy of encouraging passengers to stay in their rooms on embarkation days in its official Housekeeping Policies and Procedures Manual as follows: “With traditional cruising, getting off the ship can be a lot of Hurry up and wait. Not with NCL. We thought that maybe sleeping in … might be a better alternative. So we say, relax anyway you like, until its really time to go.” (Plaintiffs’ FACTS3, pg. 6); 4) Plaintiffs could not begin (nor complete) cleaning their assigned cabins until the passengers occupying that cabin departed the ship. (Plaintiffs’ FACTS4, pg. 6);
During the claim period NCL allowed and encouraged passengers to sleep in, have breakfast in their staterooms, and place “do not disturb signs” on their stateroom doors. As a result, on any given embarkation day, passengers stayed in their cabins until 10:00 – 10:30 a.m. As a result, Plaintiffs’ could not begin cleaning their cabins until after this time. (Plaintiffs’ FACTS5, pg. 6-7); 6) New passengers began embarking NCL’s ships starting at 12:00 p.m. (Plaintiffs’ FACTS7, pg. 7) During the claim period, NCL required Senior Stateroom Stewards to finish all of their assigned cabins between 1:30 on embarkation/turnover days. (Plaintiffs’ FACTS8, pg. 7).
In sum, just like in Wallace, here the Plaintiffs put forth considerable evidence that, in light of the workload and the short timeframes imposed by NCL, they were required to use and pay for helpers in order to get their work done on embarkation day. Consequently, the Plaintiffs have put forth sufficient evidence to raise a material issue of fact as to whether NCL had an unwritten policy of refusing to allow the plaintiffs to keep their full wages, such that NCL de facto refused to pay full wages.
(v). The are serious questions concerning the trustworthiness of the declarations of NCL’s Witnesses, in light of those witnesses testimony during the Wallace trial.
In support of its Motion for Summary Judgment, NCL filed the declaration of Ronald Alcaraz. In the declaration, Mr. Alcaraz makes the allegation that he can finish the work assigned to him on embarkation day, without the use of helpers. Mr. Alcaraz’s declaration, however, is undermined by his own testimony during the Wallace trial.
In the Wallace trial Alcaraz testified that he had between 8.30 a.m. and 2.00 pm to clean all 32 of the cabins assigned to him on embarkation days during the claim period. Therefore, Alcaraz testified he had a total of 5 hours and 30 minutes to clean the cabins assigned to him on embarkation days. Alcaraz further testified that on average he had to strip and make 50 beds during the claim period, and that it took him 6 minutes to strip and make one bed. Thus, under Mr. Alcaraz own estimates, it took him a total of 300 minutes (50 beds X 6 minutes) or 5 hours just to finish the beds – and nothing else – in the 32 rooms assigned to him. (Plaintiffs’ FACTS17, pg. 10).
This leaves only 30 minutes (out of the total of 5 hours and 30 minutes he testified he had to finish all of his work) to complete all of the other 35 tasks depicted in NCL’s “Housekeeping Manual Embarkation Day Steps.” Based on his testimony, after finishing the beds in the 32 rooms assigned to him, Mr. Alcaraz had only 30 minutes to finish the following embarkation day tasks (32 times in all 32 rooms assigned to him): Remove any room service trays to avoid any spills in the room; Remove dirty glasses and mugs; Collect ashtray and trash; Removing all garbage from balcony and clean glass and furniture of required; Remove all coffee filters, cups and sanitize; Clean refrigerator; Remove all old items and sanitize; Removing any items left over from previous guests (if any guest belonging found should be returned to lost and found); Dust/Polish surfaces mirrors and windows (and clean with approved chemical); Sanitize phone; vacuum carpet around the room and corners; Place ice in the stateroom; and set-up clean glasses and coffee amenities, – among others. Id.
Common sense dictates – and the record evidence submitted by the Plaintiffs shows – that this is simply not possible. Thus, the trier of fact might raise questions about Mr. Alcaraz’s credibility. See Exhibit “3,” Order Denying, in part, NCL’s Motion for Summary Judgment, Wallace, et. al. v. NCL (Bahamas) Ltd., 09-21814-CIV-JORDAN, D.E. 222, at pg. 11 (“At this stage … [t]here is conflicting testimony requiring a credibility determination that precludes summary judgment. It may be the case that the factfinder does not find the NCL witnesses to be credible […]. With the standard of review appropriate at summary judgment, I simply cannot make this determination.”).
In its Motion for Summary Judgment NCL argues that that no steward was forced to hire a helper, but rather that they chose to do so for “personal reasons” such as going to lunch or making phone calls in Port. In support of this assertion, NCL filed the declaration of Cesar Lanic, among others. However, on cross examination during the Wallace trial, Lanic conceded that in the very next port that the cruise ship would arrive at, a day or two later, every senior stateroom stewards (including himself) were given roughly a four hour break. Lanic conceded that during that four-hour break, every Senior Stateroom Steward could go into port, have lunch or make phone calls, for free (instead of paying a helper). (Plaintiffs’ FACTS18, pg. 10).
This presents genuine issues for the trier of fact, including determining whether Seniors Stateroom Stewards would voluntarily chose to give up roughly a quarter of their wages – $600 per month (i.e. to make phone calls) if they can do the exact same things a day or two later, for free, during this four hour break period in the very next port after embarkation day. Plaintiffs’ record evidence says that they would not. (Plaintiffs’ FACTS18, pg. 10).
In her declaration, Ms. Kosla alleges that she “trained” Senior Stateroom stewards to work without helpers. However, there is no evidence in the record – including Ms. Kosla’s declaration – that Patrycja Kosla “trained” any of the sixty-six named Plaintiffs during the claim period to work without helpers. (Plaintiffs’ Response to Defendant’s FACTS20, pg. 5).
(v). NCL’s Exhibit 23, a video depicting Ronald Alcaraz cleaning rooms on April 19, 2012 is irrelevant: The video does not document the working conditions on NCL ships – as they existed during the claim period.
The claim period in this matter is limited to the period of May 14, 2006 through June 14, 2009. In support of its Motion for Summary Judgment NCL filed a video, NCL’s Exhibit 23 [D.E. 98].
First, the video was made by NCL on April 19, 2012 (almost three years after the claims giving rise to this incident took place). D.E. 95,19. The video, therefore, does not document the working conditions on NCL ships – as they existed during the claim period. Rather, the video documents the housekeeping department as it is today, following a complete re-structuring of NCL’s housekeeping department (which included a significant decrease in the workload of Senior Stateroom Stewards). This re-structuring was implemented, to mirror housekeeping operations on Carnival cruise lines, so that staterooms stewards would not need to hire helpers on embarkation day. (Plaintiffs’ FACTS23, pg. 13).
Second, a review of the video [D.E. 98] also reveals that after the complete restructuring of the housekeeping department, which took place after the claim period (2006-2009), NCL also seems to have modified the times in which passengers must leave NCL ships on embarkation day. In the video (filmed on April 19, 2012) the crew announces to passengers that the “final call for passengers to leave the NCL ship at 9.25 am.” In striking contrast, during the claim period (before the restructuring), Plaintiffs could not begin cleaning most rooms until 10.30. (Plaintiffs’ FACTS23(a), pg. 13).
Third, NCL’s Exhibit 23 video also only depicts the working conditions on one ship, the NCL Gem.5] The video does not depict the working conditions on the other vessels Plaintiffs worked for during the claim period: Sun, Jewel, Pearl, Dream, Dawn, Majesty, Star, Sky, Spirit, Jade. The record evidence submitted by the Plaintiffs shows that during the claim period, Plaintiffs were required and forced to hire helpers on the Sun, Jewel, Pearl, Dream, Dawn, Majesty, Star, Sky, Spirit, Jade. (Plaintiffs’ FACTS23(b), pg. 14).
Fourth, Plaintiffs were never made aware that this video was being created and were never given an opportunity to attend. As such, this video is basically NCL producing and creating its own video without the Plaintiffs even knowing about it.
Finally, NCL’s Exhibit 23 video does not depict the any of the sixty-six named Plaintiffs cleaning cabins during the claim period. NCL’s video only depicts one crewmember, Ronald Alcaraz (who is not a Plaintiff in this matter), cleaning passenger cabins on April 19, 2012 – after the claim period and after NCL’s restructuring of the housekeeping department. (Plaintiffs’ FACTS23(c), pg. 14).
All in all, contrary to NCL’s assertions, the Exhibit 23 video, does not undermine the great deal of record evidence Plaintiffs have submitted showing that, during the claim period, Plaintiffs could not finish the workload within the assigned time frames, without the use and payment of helpers.
(b)NCL’s deprivation of the Plaintiffs’ wages was without sufficient cause. The record evidence shows that at all times material, NCL knew that the work it assigned to the Plaintiffs, coupled with the time frame within which it required that work to be finished, could not be done with the use of helpers. Thus, NCL’s refusal to pay for the Plaintiffs’ helpers was arbitrary, unwarranted, unjust and unreasonable.
46 U.S.C. §10313(g), imposes a mandatory penalty if a ship-owner withholds payment of wages without sufficient cause. Wallace , et. al. v. NCL (Bahamas) Ltd., 09-21814-CIV-JORDAN, D.E. 222 (S.D. Fla. 2010).
A withholding is “without sufficient cause” when it is premised on a willful, unreasonable or arbitrary attitude upon the part of the master or ship owner in refusing to pay earned wages to seamen. It may be a high handed or capricious action, although not necessarily so. “Without sufficient cause” has been characterized by admiralty courts as arbitrary, unwarranted, unjust or unreasonable conduct. See Priyanto v. M/S Amsterdam, et. al. 2009 AMC 2039 (C.D. Cal. 2009), citing Mateo v. M/S Kiso, 41 F. 3d 1283, 1289 (9th Cir. 1994)(quoting 1 Norris, the Law of Seamen § 17L5 at 517-19 (4th ed. 1985).
Therefore, the standard to ascertain whether the ship-owners actions where “without sufficient cause” is if the conduct was either: unreasonable, or arbitrary, or unwarranted or unjust.
(i). NCL’s internal ‘in house’ emails paint a clear picture.
The record evidence shows that, at all relevant times, NCL knew that the work it assigned to the Plaintiffs, coupled with the time frame within which it required that work to be finished, could not be done without the use of helpers. (Plaintiffs’ FACTS19, pg. 11).The record evidence shows that NCL management – from the supervisors and officers in every vessel (i.e. Executive Housekeepers, Hotel Directors, Captains) up to the company’s high ranking senior executives in Miami (i.e. CEO, President, VPs, Directors) – knew that the Senior Stateroom Stewards required helpers to turnover cabins for embarking guests, to standards prescribed by NCL within the time frames imposed by NCL freestyle cruising policies. (Plaintiffs’ FACTS19, pg. 11).
The ‘in house’ emails begin with several audits done in 2006 aboard the Norwegian Wind to track the hours helpers worked with Senior Stateroom Stewards on embarkation day. At trial it was revealed these audits were commissioned for the purpose of keeping track of crewmember work hours as helpers, to determine if those extra work hours as helpers –were in violation of ILO regulations.
These three audits suggest that every Senior Stateroom Steward hired a helper on embarkation day. The audits also suggest the hiring of helpers was a requirement not a choice. NCL readily admits in these audits that NCL violated the ILO mandatory working hours as a result of its crew working as embarkation day helpers. This raises a critical inference that NCL simply would not risk violating (much less actually violate) the ILO for something that a voluntary choice. Notably, NCL offered no evidence at trial as to why it would risk ILO violations to allow Senior Stateroom Stewards to choose to hire embarkation day helpers.
The record evidence showed that during the relevant claim period NCL performed numerous cost analyses to estimate the cost to the company of paying for the helpers. One of such analysis indicates that by not paying for the helpers NCL was saving in excess of $1.3 million dollars per year. (Plaintiffs’ FACTS20, pg. 12).
Other ‘in house’ emails, when viewed in chronological order, paint a vivid picture regarding the practice and use of helpers across NCL’s fleet. See (Plaintiffs’ FACTS19, pg. 11). The e-mails reveal that at all times material, NCL knew that Senior Stateroom Stewards required helpers to get the job done on embarkation day. The e-mails are attached as Exhibits 20-1 through 20-43. For the Court convenience Plaintiff references Demonstrative Exhibit “A,” which consists of a compilation summarizing the contents of these internal e-mails.
The record evidence showed that during the relevant claim period NCL performed numerous cost analyses to estimate the cost to the company of paying for the helpers. One of such analysis indicates that by not paying for the helpers NCL was saving in excess of $1.3 million dollars per year. (Plaintiffs’ FACTS20, pg. 12).
All in all NCL’s refusal to pay for the Plaintiffs’ helpers was motivated solely by economic means, which the courts have found to be arbitrary, unwarranted, unjust and unreasonable conduct, and therefore without sufficient cause. See Jose v. M/V Fir Grove, 801 F. Supp. 358, 376 (D. Or. 1992) (holding foreign seamen were entitled to penalty wages under the Wage Act after ship owners paid them substantially less than amount contractually agreed upon, and their failure to do so was motivated solely by economic concerns, and these willful actions would have continued into the future but for the seafarers’ attorneys intervention).
(ii). NCL’s arguments with respect to its “sufficient cause” were rejected in Wallace, et. al. v. NCL (Bahamas) Ltd., 09-21814-CIV-JORDAN.
In its Motion for Summary Judgment, NCL argues that its practices were without sufficient cause. NCL raised similar arguments in Wallace. In its Order denying NCL’s Motion to Summary Judgment, in part, the Court in Wallace held that the finding of whether a withholding was without sufficient cause raises genuine disputes of material facts, which must be resolved by the trier fact:
NCL also argues that “even if the Court were to determine [that] there is disagreement regarding the necessity of hiring helpers, and that such a disagreement precluded the entry of summary judgment on the issue of whether, for purposes of 10313(f), Plaintiffs were paid the full amount of wages to which they are entitled, the same disagreement precludes a finding of ‘without sufficient ca[u]se’ and warrants the entry of summary judgment in favor of NCL on the issue of penalty wages”. This is not the case … [t]here is conflicting testimony requiring a credibility determination that precludes summary judgment. It may be the case that the factfinder does not find the NCL witnesses to be credible […]. With the standard of review appropriate at summary judgment, I simply cannot make this determination.”)
See Exhibit “3,” Order Denying in Part, NCL’s Motion for Summary Judgment, Wallace, et. al. v. NCL (Bahamas) Ltd., 09-21814-CIV-JORDAN, D.E. 222 at pg. 11.
Subsequently, the Court denied NCL’s Motion for Reconsideration and reaffirmed that determination of “without sufficient cause” was a question for the trier of fact. See Exhibit “24,” Order Denying NCL’s Motion for Reconsideration, Wallace, et. al. v. NCL (Bahamas) Ltd., 09-21814-CIV-JORDAN, D.E. 242.
B.NCL’s Motion for Summary Judgment does not dispute that 137 voyages out 200 voyages, are “qualifying voyages” within the meaning of 46 U.S.C. 10301.
Although not addressed in NCL’s statement of material facts, it is undisputed by NCL that 137 (out of the 200) voyages were between a port in the United States and a port in a foreign country (except Canada, Mexico or the West Indies), or between a port in the United States on the Atlantic Ocean and a port of the United States on the Pacific Ocean. Additionally, although not addressed in NCL’s statement of material facts, it is undisputed by NCL that these 137 voyages ended in a United States port, meaning that the contract ended – and the Plaintiff signed off the ship – in the United States. See Chart at D.E. 97-4. These 137 voyages, therefore, are qualifying as “foreign voyages” within the meaning of 46 U.S.C. §10301.
In its Motion for Summary Judgment, NCL does not challenge this. Therefore, because NCL is in agreement that these 137 are “qualifying voyages,” the Court should allow the Plaintiffs to pursue their Seaman’s Wage Act claims as to these voyages.