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  #91 (permalink)  
Old March 25th, 2005, 09:42 PM
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Default Re: what if you just don't tip

I meant he wrote
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  #92 (permalink)  
Old April 5th, 2005, 01:53 PM
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Default Re: Re: what if you just don't tip

Quote "Curious about that lawsuit, TR. Do you have a case name? I'd like very much to look it up on my dh's Westlaw account and read the whole case. Was it a federal case? If so, I assume it was filed in Florida. "

Both Royal Caribbean and Celebrity guaranteed a minimum wage way above $50 per month.


IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 00-12619
________________________
D. C. Docket No. 98-02076-CV-DLG

JOSE ANTONIO CABRERA ESPINAL,

Plaintiff-Appellee,
versus
ROYAL CARIBBEAN CRUISES, LTD.,

CELEBRITY CRUISES, INC.,

Defendants-Appellants.
________________________
No. 00-13268
________________________
D. C. Docket No. 99-02475-CV-SH
JOSE ANTONIO CABRERA ESPINAL,

Plaintiff-Appellant,
versus
ROYAL CARIBBEAN CRUISES, LTD.,

CELEBRITY CRUISES, INC.,

Defendants-Appellees.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(June 8, 2001)
Before TJOFLAT and WILSON, Circuit Judges, and RESTANI *, Judge.

PER CURIAM:

Jose Antonio Cabrera Espinal ("Cabrera Espinal") is the plaintiff in two related cases that have been consolidated on appeal. Addressing each temporally according to the date filed, we will refer to the cases as Espinal I and Espinal II. For the reasons stated below the district court's decision in Espinal I is affirmed in part and reversed in part, and Espinal II is affirmed.

ESPINAL I

Cabrera Espinal worked on Royal Caribbean Cruises' ("RCC") ships as a tip-earning employee under a contract that commenced on December 23, 1997 and expired on November 23, 1998. The contract provided for at-will employment to be terminated with two weeks notice. A collective bargaining agreement ("CBA") governed the contract.

The contract provided for a guaranteed minimum monthly income of $766.00 ($50 in contract wages and $716 in tips). If an employee did not receive the calculated monthly minimum in tips, RCC would provide the difference.

In February of 1998, Cabrera Espinal herniated a lumbar disc and was unable to finish his employment contract due to his work related injury. Pursuant to the CBA, RCC paid him sick wages from the time he became injured for 112 days in the amount of $766 per month. Cabrera Espinal brought suit against RCC contending that he is entitled to his average or actual monthly salary ($1500 which includes $1450 in tips) as sick wages instead of the guaranteed minimum.

The district court agreed with Cabrera Espinal and found that he was entitled to actual wages for the 112 days provided for in the CBA. RCC now appeals that decision.

DISCUSSION

The sole question for review is whether the district court should have applied general maritime law or the CBA in calculating the amount of unearned sick wages and the length of time for which those wages are due. We review a motion granting summary judgment de novo, applying the same legal standards used by the district court. Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1196 (11th Cir. 1997).

Under general maritime law, seamen are entitled to bring an action for "maintenance and cure," a remedy available to compensate seamen who fall ill or become injured during the their term of employment. See Flores v. Carnival Cruise Lines, 47 F.3d 1120, 1122 (11th Cir. 1995). The Supreme Court has previously recognized that a ship owner's liability for maintenance and cure is among the most pervasive and should not be defeated by narrow or restrictive distinctions. See Vaughan v. Atkinson, 369 U.S. 527, 532 (1962). Nonetheless, the remedies provided for in maritime law may be altered although not abrogated by collective bargaining agreements. See Frederick v. Kirby Tankships, Inc., 205 F.3d 1277, 1291 (11th Cir. 2000) (holding that where a CBA fixes a maintenance rate, the term should be enforced), cert. denied, __ U.S. __, 121 S. Ct. 46 (2000). "[T]he broad labor policies which undergird federal labor law, as well as the nature of the collective bargaining process, require adherence to the CBA." Id.; see also Gardiner v. Sea-Land Serv., Inc., 786 F.2d 943, 948 (9th Cir. 1986). The reason for this is that a CBA represents a mutual agreement encompassing a wide range of issues for which some provisions will result in greater protection than that represented by statute while others will result in less. Frederick, 205 F.3d at 1291; see also Lipscomb v. Foss Maritime Co., 83 F.3d 1106, 1108-9 (9th Cir. 1996). As a result, based on the greater considerations that result in a collective bargaining agreement, this court will enforce the provisions unless contrary to the law. See Marshall v. Western Grain Co., 838 F.2d 1165, 1168-70 (11th Cir. 1988)(per curiam).

General maritime law guarantees seamen: "(1) maintenance, which is a living allowance; (2) cure, which covers nursing and medical expenses; and (3) wages." Herbert R. Baer, Admiralty Law of the Supreme Court 6 (3d ed. 1979); see 1B Benedict on Admiralty 43 (7th ed. 1994). Our case law has previously held that the wages for incapacitated seamen should be measured based on their average tip income. See e.g., Flores, 47 F.3d at 1127; Aksoy v. Apollo Ship Chandlers, Inc., 137 F.3d 1304 (11th Cir. 1998)(per curiam).

RCC argues that the district court erred in applying our previous case law in light of a collective bargaining agreement that explicitly states how sick pay and basic monthly wages would be measured. It contends that prior case law used average tip income as a measure simply because no other method of calculation existed and had this situation been presented to those panels, they would have found the CBA applicable.

Given this argument, we first look to whether the CBA modified general maritime law. The CBA states:

Wages (basic monthly wage), will continue [after the seafarer leaves the ship] on submission of satisfactory medical certificates for a maximum of 112 (hundred and twelve) days.

CBA, Article 12. An attached chart also indicates what specific "basic monthly wage" and "sick pay" are. The district court held that the CBA expressly modified the maritime law computation of sick wages. We agree. Yet, the district court relied on a series of cases, which calculated sick wages as wages plus average tip- income instead of a fixed minimum, to hold that the clause modifying maritime law was inapplicable. We find that the district court erred in finding the clause inapplicable.

The two cases that the district court relies on in support of basing sick wages on the average tip income of the seafarer are Flores and Aksoy. Flores is easily distinguishable because there Carnival Cruise Lines argued that it had no legal duty to pay more than the $45-per-month salary as unearned (or sick) wages. 47 F.3d at 1122. In a case of first impression, the court held that tip income must be included in the calculation of unearned wages. Id. at 1127. It, then, set the rate as the average tip income earned absent any other prevailing authority on the matter. Id. Three years later, the Aksoy court relied on the Flores logic to calculate unearned wages as the average tip income plus guaranteed minimum wage because "Aksoy's contract did not purport to place a limit on the amount of unearned wages Aksoy was entitled to receive. . ." Aksoy, 137 F.3d at 1306. The present case is distinguishable not only because a plain language reading of the CBA purports to limit the amount of unearned wages but also in the intervening period, we have adopted a view of the law that requires us to rely on collective bargaining agreements' modifications of maritime law. See Frederick, 205 F.3d at 1291.

Therefore, we conclude that nothing in maritime law prevents the setting of sick wages below the average tip income received. The CBA in the instant case, as is true in any collective bargaining agreement, represents a series of trade-offs between an employer and employees reaching a mutually satisfying agreement. Courts should be loathe for a multitude of reasons to abrogate clauses in such contracts absent a pressing legal reason. Furthermore, precedent in this circuit may be distinguished on the grounds that none of the employment contracts in those cases explicitly indicated how sick pay and basic monthly wages would be calculated. As the CBA in this case did, we find that the district court erred in not relying on the CBA to calculate the amount of unearned sick wages. However, because the district court correctly relied on the CBA to calculate the length of time for which those wages should be paid, that part of the opinion is affirmed. See Farrell v. United States, 336 U.S. 511, 520-21 (1949) (holding that a seaman's length of voyage is the duration of employment for which sick wages are due unless some longer term is enforceable); Nichols v. Barwick, 792 F.2d 1520, 1524 (11th Cir. 1986) (same).

ESPINAL II

Filed later in time than Espinal I but occurring prior to the events that led up to that case, Cabrera Espinal appeals the district court's grant of summary judgment to the RCC.

Cabrera Espinal was a tip-earning employee under a contract for Celebrity Cruises, Inc.,1 which commenced on November 4, 1996 and expired on October 3, 1997. His contract guaranteed him income of $743 per month ($50 in wages with the rest in tips). He could be terminated at-will and without notice.

Cabrera Espinal developed an eye injury during his period of employment but waited until the boat returned to port at its final destination on October 1, 1997 before receiving medical attention. Prior to the end of the voyage, Cabrera Espinal consulted the ship's doctor. Upon leaving the ship, he first saw a doctor in Miami and then in his native land of Honduras where the medical attention he received resulted in a cure on December 3, 1997.

RCC paid sick wages to Cabrera Espinal based on the guaranteed minimum for 63 days under the then applicable CBA. Cabrera Espinal again argues that he was entitled to actual earnings of $1500 during that period. The district court granted summary judgment to RCC stating that because Cabrera Espinal's contract terminated on or about October 1, 1997, he was not entitled to receive any sick pay under either maritime law or the CBA as of that date.

DISCUSSION

The sole question for review is whether the district court erred in granting summary judgment to RCC by finding that Cabrera Espinal was not an employee and thus not entitled to sick pay under the CBA or maritime law.

Cabrera Espinal contends that in light of the rule of Farrell, 336 U.S. 511,2 the CBA's sick period and wage provisions did not become null and void when the employment contract expired. He further argues that because RCC paid some sick wages, it is an implicit admission that sick wages are due.

For all the reasons stated in Espinal I, we hold that the CBA applies. Article 2 of the CBA states that an employee is covered by the agreement until the owner ceases to be liable for wages or the date at which the employee signs off the ship. It is undisputed that Cabrera Espinal signed off the ship on October 1, 1997, after the final voyage was completed and two days before his employment contract expired and the boat would leave port again. Article 12 of the CBA provides that a signed off seafarer who lands in any port as a result of injury or sickness will continue to receive his wages until he has been repatriated at company expense. The seafarer will then be paid in advance for the anticipated number of days certified by a doctor that he is expected to be sick or injured.

The boat that Cabrera Espinal was employed on docked in Los Angeles. Cabrera Espinal was flown at company expense to Miami, where he received an initial examination. On October 4, 1997, he flew home to Honduras for surgery. His surgery was completed on December 3, 1997. At the time of Cabrera Espinal's operation, Celebrity Cruise Lines merged with RCC. RCC contends that it was during this confusing time when it was unclear whose CBA applied and paperwork was lost that a disbursement for sick wages was made.

We need not decide when and under what circumstances Cabrera Espinal received sick wages. It is more than enough to rely on the fact that a "seaman's action for maintenance and cure may be seen as one designed to put the sailor in the same position as he would have been had he continued to work: . . . and he receives an amount representing his unearned wages for the duration of his voyage or contract period." Flores, 47 F.3d at 1127; see also Farrell, 336 U.S. at 516 (stating that a seaman must be in service of the ship at the time of his injury to receive maintenance and cure). In the instant case, the final voyage was completed and only two days were left on Cabrera Espinal's employment contract. To find that the company owed him any further obligations would contradict both contract law as embodied in the CBA and this circuit's interpretation of general maritime law. As a result, we affirm the district court's grant of summary judgment to RCC.

CONCLUSION

In Espinal I, we find that the CBA governed in its entirety the amount and duration of sick wages to be paid. As a result, the district court's calculation of the amount of sick wages is REVERSED.

The application of the CBA's 112-day sick period is AFFIRMED.

As it appears that RCC paid sick wages for 112 days based on its calculation of the basic monthly wages, it has fulfilled its obligations to Cabrera Espinal.

In Espinal II, because we find that Cabrera Espinal was sufficiently compensated for his term of employment and was owed no further duty at the time he was recuperating from his eye injury, the district court's grant of summary judgment is AFFIRMED.

Finally, RCC complied with the CBA and no evidence of bad faith exists on its part. See Flores, 47 F.3d at 1127. Therefore, Cabrera Espinal's motion requesting attorneys' fees is DENIED.


FOOTNOTES [*]Honorable Jane A. Restani, Judge, U.S. Court of International Trade, sitting by designation.

[1] Royal Caribbean Cruises bought out Celebrity Cruises prior to Cabrera Espinal's receipt of sick wages.

[2] Farrell held that as a general rule a seaman's employment term is the length of voyage unless there is a longer term of employment enforceable.
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  #93 (permalink)  
Old April 5th, 2005, 09:18 PM
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Default Re: what if you just don't tip

Where is TR.

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  #94 (permalink)  
Old April 6th, 2005, 08:55 AM
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Default Re: what if you just don't tip

The cruiselines could solve this entire problem by including tips (or fair market wages) as part of the price, but they don't want to do that. They want to advertise a cheap fare and then hit the customers with fees, surcharges, incidentals, etc. . . ad nauseum. No wonder Joe Blow and family who scrape together the money for tickets have sticker shock when they start seeing the REAL price. I understand where this sentiment comes from. I am sick of modern marketing techniques, deceptive advertising, and fine print.

I saw a comment on this thread or a related one about how CUSTOMERS are trying to nickel and dime by not paying tips, well, the cruiselines are setting a great example of how to nickel and dime by their pricing structure. Imagine that, the cruiselines nickel and dime, so the customers nickel and dime or vice versa, it doesn't really matter. Instead of standing up for their employees and paying a guaranteed fair market wage, they are relying on custom, social pressure, and guilt placed on customers to pay their employees.

I am sailing on the Conquest at the end of the month with my wife. I will be taking my cruise ticket prices x 15% to establish a base line for tips. If service is satisfactory, the 15% will result in an amount higher than Carnival recommends. Inferior service will reduce the tip, superior service will increase the tip. If any server or employee mentions how little the cruiselines pay, I will reduce their tip. A good employee knows that guilt is a cheap method to get a tip and that customers on vacation should not be subjected to sob stories.
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  #95 (permalink)  
Old April 7th, 2005, 08:12 AM
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Default Re: what if you just don't tip

What fine print are you talking about. That "price is based on double occupancy and is for a 1a cabin and does not include tax." I mean hopefully you are not one that thinks that price is for a balcony during the summer. Fine print is a part of life. "Get this new Dell computer for 499.00." In fine print "After 200.00 mail in rebate", "Get 4 brand new tires for 99.00." In fine print "Price is for 75r13 and does not include tax." At Mcdonalds "Get 5 items all for under 1.00." In fine print "tax not included prices subject to participation." Fine print is a part of life and anybody business man in here would tell you that.

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Old April 7th, 2005, 12:13 PM
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Default Re: what if you just don't tip

. . . I'm an attorney so I know all about fine print. I am no novice and I draft complicated contracts. Doesn't mean I have to like fine print though. In fact, most transactional attorneys do not favor fine print as it leads to confusion and oversight which leads to litigation. Big corps love it for marketing reasons. I am in favor of up-front and good faith disclosures, not "this will cost you X, but if you read through all the terms and conditions, it will really be X + Y + Z, and oh yeah, only drink types A - D are covered, and oh yeah, services F - L are not covered, etc . . . ." As a consumer, how could you support this type of marketing?

There is a lot more fine print to cruises than just "does not include tax". You say "fine print is a way of life" and I ask why does it have to be? It doesn't have to be a way of life, but big corps love it and consumers are lethargic about it. In fact, some states and the federal government have stepped in and prohibited "fine print" for certain types of contracts.
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Old April 7th, 2005, 12:58 PM
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Default Re: what if you just don't tip

I just hired a real estate lawyer there is more fine print in the contract than I know what to do with. I need to hire another lawyer just to tell me what the fine print is. If I knew anything about buying houses and all that goes into it I would be better off. But I don't however you can believe next time I will.

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  #98 (permalink)  
Old April 7th, 2005, 01:27 PM
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Default Re: what if you just don't tip

Good luck with your house purchase . . . and beware the fine print ; )
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  #99 (permalink)  
Old April 12th, 2005, 03:01 PM
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Default Re: what if you just don't tip

tip like you would want to be tipped.

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  #100 (permalink)  
Old April 25th, 2005, 05:09 PM
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Default Re: what if you just don't tip

While I had the dates wrong, I do feel vindicated. That posting of the lawsuit proves their wages are way more than the alleged $50 a month. Getting $766 a month with free room and board is quite the salary especially where many of the workers come from.

I will continue to not tip and feel no guilt about it.
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Old April 26th, 2005, 04:08 AM
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Default Re: what if you just don't tip

On a 'not too long ago' cruise of four weeks duration more than 40% of passengers did not pay the prescribed tips, they in fact paid nothing. Information came from the staff purser on the ship.

So for one whole month the servers on the ship only got 60%of their normal tips wages.

This is a good reason for tips to be included, or to make people pay up front before the cruise takes place.

I have a feeling because this is happening more often that the cruise lines will change their policies is some way.

I also think it is up to the individual whether they pay the tips or not. It's not up to other people to decide for them... whether it's the right thing to do or not is an opinion and everyones opinions differ. Doesn't mean you will change their outlook on tipping.

I hate tipping and I don't care in the least whether others do it or not, it's really none of my business or anyone elses for that matter.

BTW 70% of the passengers on the above cruise were from the US.... says a lot about what they think of tipping too. I'm thinking there must be an awful lot of forum readers who don't pay tips out there but haven't got the guts like TR to post.
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Old April 27th, 2005, 02:01 PM
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Default Re: what if you just don't tip

When ever I come ofn the "tip" board and see this topic title I get the urge to resond with the first thing that pops into my mind. So here goes.


"what if you just don't tip" - topic
"then you are cheap" - answer
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  #103 (permalink)  
Old May 5th, 2005, 11:15 PM
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You deserve to have the soup spilled on you. My blood pressure just skyrocketed when I read that you never tip. In most restaurants in the US if you don't tip the waiter not only do they not get compensated for working for you, they wind up having to pay to wait on you. Servers are required to tip out 3-4% of their sales to bar/bus/host staff. They don't get to deduct your sales because you were a (BLEEP).
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Old May 9th, 2005, 11:41 AM
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Default Re: what if you just don't tip

Samdarella, I know this is a bit off topic, but, I have to say that is an AWFUL system that you Americans have. Why would anyone want to be a waiter, that sucks.
I would never waiter in your country, and I think you should pass laws that prevent waiters having to pay to work.
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  #105 (permalink)  
Old May 25th, 2005, 10:54 AM
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Default Re: what if you just don't tip

You know after a random sampling of European based cruiselines, I can tell you that the 10 a day is a US thing.

P&O suggests 3.75 per day,
Ocean Village, states that it is included,
Thompson says 4
Costa states 6
Easycruise, none, but there is no one to tip as well since nothing is included.

Considering the fact that the crew doesn't make only the $50 a month, they are guaranteed a minimum according to the lawsuit a few posts back! That means it works like a restaurant where they may pay you less, but if you do not make it in tips, then the owner does. Since they seem to make up the difference, then I don't see a reason to tip in addition, sock it back to the cruiselines.

If they want to increase the fare by $70 dollars, then they should go for it, and if you complain that it will start the whole tipping cycle over again well, then you only have yourselves to blame for doing it.

Cheers,
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Old June 5th, 2005, 10:41 PM
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Default Re: what if you just don't tip

How can someone who does not tip for a week of being pampered and having everything done for you not tip? How do they live with themselves? Whether the service was fantastic or just tolerable they deserve some kind of tip. Just my thought.

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Old June 7th, 2005, 06:43 PM
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Default Re: what if you just don't tip

I am paying for being pampered for a week and having everything done for me and I am paying a pretty penny. I see no reason to offer more compensation than I have already paid.
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