Recently, attorney Lee J. Bloomfield, presented a seminar entitled: “Don’t Miss the Boat: Basics of Maritime Personal Injury Law in 45 Minutes”
From the seminar papers, we are producing a blog series. This is the 4th blog post of this series. This post discusses the Jones Act and Unseaworthiness.
Maintenance and Cure
Under the general maritime law, a seaman has a right to recover maintenance and cure, a form of workers’ compensation benefits (one of the oldest), payable as a matter of contract. Maintenance refers to a ship owner’s obligation to provide a mariner with food and lodging if he or she becomes injured or falls ill while in the service of the ship. When determining the amount of maintenance, the general rule is that a seaman is entitled to his actual reasonable cost of obtaining room and board ashore of the same quality that he or she received aboard the vessel. McWilliams v. Texaco, Inc., 781 F.2d 514 (5th Cir. 1986); see also, Springborn v. American Commercial Barge Co., 767 F.2d 89 (5th Cir. 1985); Incandela v. American Dredging Co., 659 F.2d 11 (2nd Cir. 1981); Stewart v. Waterman S.S. Corp., 409 F.2d 1045 (5th Cir. 1969). Cure refers to the duty to provide necessary medical care and attention. Blainey v. American S.S. Co., 990 F. 2d 885 (6th Cir. 1993). Maintenance and cure is an independent claim that is not contingent upon recovery for negligence under the Jones Act or for breaching the duty to provide a seaworthy vessel. West v. Midland Enterprises, Inc., 227 F.3d 613, 616 (6th Cir. 2000).
In order to recover maintenance and cure, a seaman must show that: (1) he or she was working as a seaman; (2) he or she became ill or injured while in the service of the vessel; and (3) he or she lost wages or incurred expenditures relating to treatment for the illness or injury. Id. It is well settled that maintenance and cure is payable even though the ship owner is not at fault, and regardless of whether the seaman’s employment caused the injury or illness. Calmar, 303 U.S. 525 (1938). S. S. Corp. vs. Taylor 303 U.S. 525 (1938).
Seaman are considered wards of the court, and the rules providing for their benefit and protection are liberally construed. Stevens v. McGinnis, Inc., 82 F.3d 1353, 1357 (6th Cir. 1996). The ship owner’s liability for maintenance and cure is among the most pervasive of all, and it is not to be defeated by restricted distinctions nor narrowly confined. When there are ambiguities or doubts, they are resolved in favor of the seaman. Vaughan v. Atkinson, 369 U.S. 527 (1962). A seaman’s burden is “featherweight.” Hall v. Noble Drilling (U.S.) Inc. Services, 242 F.2d 582, 588 (5th Cir. 2001). Maintenance should be inclusive and simple, with few exceptions. Boyden, 2000 WL 33179294 (W.D.Wash.). A ship owner must pay v. American Seafoods Co. maintenance and cure for an illness which occurred, was aggravated, or manifested itself while the seaman was in the ship’s service. Stephens, 82 F. 3d at 1357-58.
There are few defenses to a claim for maintenance and cure. If, however, a seaman has willfully concealed a disabling condition at the time of hire, this may provide a defense to maintenance and cure for disabilities from such a condition. Brown v. Parker Drilling Offshore, 410 F.3d 166, 173-74 (5th Cir. 2005); see also Deisler v. McCormack Aggregates Co., 54 Corp. F.3d 1074, 1080-81 (3rd Cir. 1995). This defense frequently is referred to as the “McCorpen Rule.” Id. In Brown, the Fifth Circuit stated that in order to establish the defense of “willful concealment,” an employer must show that:
(1) the claimant intentionally misrepresented or concealed medical facts concerning a prior injury or condition;
(2) the non-disclosed facts were material to the employer’s decision to hire the claimant; and
(3) a connection exists between the withheld information and the injury complained of in the lawsuit.
Brown, 410 F.3d at 171.
The ship owner’s obligation to pay maintenance, cure and unearned wages stops after the seaman has reached “maximum cure.” Maximum cure is reached when seaman’s condition is of permanent character and/or will not further improve with additional medical treatment.
Because maintenance and cure payments are supposed to be prompt (Clifford v. Mt., 127 F.Supp.2d 1055, 1058 (S.D.Ind. 1999)), and made without delay Vernon Barge Service, Inc. (Hughes v. Hunter Marine Transport, Inc., 1997 WL 834547 (M.D.Tenn.)), expedited hearings are allowed. See Ray v. Jantran, 2001 WL 1911358 (E.D. Ark.); Felice v. Ingram Barge Co.,
2000 WL 33389210 (W.D. Ky.). Further, a seaman seeking maintenance and cure via motion “cannot be considered in the same procedural posture as a party seeking summary judgment.” Sefcik v. Ocean Pride Alaska, Inc., 844 F.Supp. 1372 (D. Alaska 1993). “Applying a summary judgment standard to the payment of maintenance and cure would invite litigation and cause delays… thus undermining the policy of simplicity in these matters.” Boyden v. American, 2000 WL 33179294 (W.D.Wash.); Connors v. Iqueque U.S.L.L.C., 2005 WL Seafoods Co. 2206922 (W.D.Wash.). The court in Hughes reasoned that although factual issues existed, “[g]iven that maintenance and cure have few exceptions to cause delay or invite litigation, and that all ambiguities are to be resolved in favor of the seaman,” relief on the seaman’s behalf was appropriate. Hughes v. Hunter Marine Transport, Inc., 1997 WL 834547 (M.D.Tenn.).
Punitive damages and attorney’s fees are recoverable for the willful failure of an employer to pay maintenance and cure. Atlantic Sounding Co, Inc. v. Townsend, 557 U.S. 404 (2009).
The three (3) year statute of limitations for maritime tort actions found in 46 U.S.C. § 30106 does not apply to actions for maintenance and cure because the action does not sound in tort. Cunningham v. Interlake S.S. Co., 567 F.3d 758, 761 (6th Cir 2009). Rather, the equitable defense of laches applies. Id. Laches is the negligent and unintentional failure to protect one’s rights. Id. A party asserting laches must show: (1) lack of diligence by the party against whom the defense is asserted; and (2) prejudice to the party asserting it. Id. at 763. However, if the three (3) year statute of limitations found in 46 U.S.C. § 30106 has run, this burden shifts to the plaintiff to prove excusable delay and lack of prejudice to the defendant. Id.
Our next post, in this series, will cover Requirements for Jones Act Coverage.