Like the remedies of maintenance and cure, a seaman may recover “unearned wages” if he or she is injured or becomes ill while in the service of the vessel regardless of fault. The duty to pay unearned wages is an ancient right of injured seamen going back hundreds of years into the maritime law. Unearned wages are payment for regular wages the seaman would have earned in the absence of the injury or illness through the end of the voyage or the mutually agreed period of employment. If the seaman is working under a written contract, unearned wages are owed through the end of the contract period. Fishermen working under a written contract are paid until the end of the contract period. Blue water seaman working of tankers and freighters are paid until the end of their articles of employment. Similarly, if the seaman has a regular pay period, the seaman is owed wages through the end of the regular pay period.
The amount owed for unearned wages includes all amounts that the seaman reasonably expected to earn during the period in issue, including overtime, bonuses, compensatory time, tips, accumulated shore leave, and other employment benefits typically given to the crew for their service. When a seaman becomes fit for duty before the end of the voyage or period of employment, a seaman is entitled to unearned wages until the end of the voyage if he can show a good faith effort to find suitable alternative employment.
An employment contract or collective bargaining agreement may define the period of unearned wages. For example, employers in the commercial fishing industry will typically set the contractual period of employment for a period less than a full fishing season and then have crew members sign multiple extensions of their contracts while on the vessel. The purpose of this practice is to avoid having to pay seaman unearned wages until the end of the fishing season. In order for the practice to work, however, the employer must offer the seaman a meaningful option other than signing an extension. If an extension is required because the seaman is unable to leave the vessel, the practice is a sham and could be avoided.
Employers frequently attempt to defend claims for unearned wages by claiming that an employee willfully concealed a disabling condition or misrepresented his medical condition at the time of employment. The concealment defense will only apply, however, where (1) the seaman intentionally misrepresented or concealed medical facts; (2) the non-disclosed facts were material to the employer’s decision to hire the seaman; (3) a connection exists between the withheld information and the injury or illness on the vessel. Accordingly, it is important that all seamen carefully read their post-employment health questionnaires and accurately answer the questions. Even if an employer does not provide adequate time for the seaman to fill out the questionnaire, it is important that the seaman take the time to fill it out as accurately as possible.