THE EMPLOYER REFUSES TO PAY MAINTENANCE AND CURE; WHAT SHOULD I DO TO HELP THE SEAMAN?

This article will discuss the options available to a seaman’s lawyer when the seaman’s employer refuses to provide a seaman injured during the course of his employment in the service of a vessel with maintenance and cure. Even though maintenance and cure is an ancient remedy available to injured seamen and issues surrounding maintenance and cure have been litigated throughout the United States in both state and federal courts, the court decisions on what procedures a seaman’s lawyer must use to obtain maintenance and cure are not uniform, and there are conflicting opinions on the burden of proof a court must use to determine if maintenance and cure is owed to an injured seaman

I. INTRODUCTION

Under general maritime law, seamen are entitled to "maintenance and cure" from their employers for injuries incurred "in the service of the ship," and to recover damages from the vessel's owner for "injuries received by seamen in consequence of the unseaworthiness of the ship." The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760 (1903); Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 370–371, 53 S.Ct. 173, 174, 77 L.Ed. 368 (1932); Vella v. Ford Motor Co., 421 U.S. 1, 3, 95 S. Ct. 1381, 43 L. Ed. 2d 682 (1975) (maintenance and cure is owed to a seaman who "becomes ill or is injured while in the service of the ship"); Clausen v. Icicle Seafoods, Inc., 174 Wn.2d 70, 76, 272 P.3d 827 (2012). "Maintenance" is a per diem living allowance for food and lodging comparable to what the seaman is entitled to while at sea; "cure" is payment of medical expenses incurred in treating the seaman's injury or illness. Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 528, 58 S. Ct. 651, 82 L.Ed. 993 (1938); Clausen, 174 Wn.2d at 76.

Maintenance and cure is an "ancient doctrine." Farrell v. United States, 336 U.S. 511, 520-21, 69 S. Ct. 707, 93 L. Ed. 850 (1949); see also 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 6 28, at 376 (4th ed. 2004) ("This duty first appears in the medieval sea codes and is undoubtedly of earlier origin."). A seaman's right to maintenance and cure was first recognized in the United States by Justice Story. See Harden v. Gordon, 11 F. Cas. 480 (C.C.D. Me. 1823) (No. 6,047); Reed v. Canfield, 20 F. Cas. 426 (C.C.D. Mass. 1832) (No. 11,641). Justice Story articulated the underlying policy of maintenance and cure as follows:

Seamen are by the peculiarity of their lives liable to sudden sickness from change of climate, exposure to perils, and exhausting labour. They are generally poor and friendless, and acquire habits of gross indulgence, carelessness, and improvidence. If some provision be not made for them in sickness at the expense of the ship, they must often in foreign ports suffer the accumulated evils of disease, and poverty, and sometimes perish from the want of suitable nourishment. Their common earnings in many instances are wholly inadequate to provide for the expenses of sickness; and if liable to be so applied, the great motives for good behaviour might be ordinarily taken away by pledging their future as well as past wages for the redemption of the debt. . . On the other hand, if these expenses are a charge upon the ship, the interest of the owner will be immediately connected with that of the seamen. The master will watch over their health with vigilance and fidelity. He will take the best methods, as well to prevent diseases, as to ensure a speedy recovery from them. He will never be tempted to abandon the sick to their forlorn fate; but his duty, combining with the interest of his owner, will lead him to succor their distress, and shed a cheering kindness over the anxious hours of suffering and despondency. Beyond this, is the great public policy of preserving this important class of citizens for the commercial service and maritime defence of the nation.

Harden, 11 F. Cas. at 483.

The U.S. Supreme Court relied on Justice Story's early opinions when it definitively established a seaman's right to maintenance and cure in The Osceloa, 189 U.S. 158, 175, 23 S. Ct. 483, 47 L. Ed. 760 (1903) . In Taylor, the Court again referenced the "classic passage" written by Justice Story – quoted above – to lay out three primary justifications for maintenance and cure: (1) "the protection of seamen," (2) "the inducement of masters and owners to protect the safety and health of seamen while in service," and (3) "the maintenance of a merchant marine for the commercial service and maritime defense of the nation by inducing [sea]men to accept employment in an arduous and perilous service." 303 U.S. at 528. In subsequent cases, the Court emphasized that a shipowner's duty to pay maintenance and cure is "'broad,"' Vella, 421 U.S. at 4 (quoting Aguilar v. Standard Oil Co. of N.J., 318 U.S. 724, 730, 63 S. Ct. 930, 87 L. Ed. 1107 (1943)).

II. GENERAL PRINCIPLES THAT MUST BE RELIED UPON IN A MAINTENANCE AND CURE DISPUTE

An employer’s duty to provide maintenance and cure should be interpreted liberally by courts for a seaman’s benefit and protection as he is the admiralty court’s ward. When an employer refuses to provide maintenance and cure, this should be considered a violation of one of the most pervasive of all duties an employer owes to the seaman, its employee. The U.S. Supreme Court has instructed that a seaman’s right to maintenance and cure is so inclusive as to be relatively simple, and should be administered without technical considerations and in a manner to avoid delays and litigation. The Court has also instructed employers and lower courts to resolve ambiguities or doubts related to entitlement to maintenance and cure in the seaman’s favor.

The Court has also stated that the duty to provide maintenance and cure should be liberally interpreted '"for the benefit and protection of seamen who are [the admiralty courts'] wards,"' Vaughan, 369 U.S. at 531 32 (quoting Taylor, 303 U.S. at 529). "[T]he shipowner's liability for maintenance and cure [is] among 'the most pervasive' of all and [is] not to be defeated by restrictive distinctions nor 'narrowly confined."' Vaughan, 369 U.S. at 532 (quoting Aguilar, 318 U.S. at 735). In order to ensure that injured seamen were protected, the Vaughan Court instructed that "[w]hen

III. BURDENS OF PROOF IN A MAINTENANCE AND CURE DISPUTE

An employer’s duty to pay maintenance and cure is "virtually automatic." Baucom v. Sisco Stevedoring, LLC, 506 F. Supp. 2d 1064, 1073 (S.D. Ala. 2007). A shipowner must pay maintenance and cure to seamen who prove, by a preponderance of the evidence, (1) they were employed as seamen, (2) their injuries or illnesses occurred, manifested, or were aggravated while in the ship's service, (3) the wages to which they are entitled, and (4) expenditures for medicines, medical treatment, board, and lodging. Johnson v. Cenac Towing Inc., 468 F. Supp. 2d 815, 832 (E.D. La. 2006), vacated on other grounds, 544 F.3d 296 (5th Cir. 2008).

In other words, a seaman has the burden of proving that his injury occurred, was aggravated by, or became manifest while in service of the vessel. Miller v. Lykes Bros. Ripley S.S. Co., 98 F.2d 185 (5th Cir. 1938). However, the seaman's burden is "relatively light." West v. Midland Enters., Inc., 227 F.3d 613, 616 (6th Cir. 2000) (quoting Freeman v. Thunder Bay Transp. Co., 735 F. Supp. 680, 681 (M.D. La. 1990)). After a seaman has proved his initial entitlement to maintenance and cure, the burden shifts to the shipowner to prove that maximum cure has been reached. Schoenbaum, supra, §6 33, at 394 (The shipowner "bears a heavy burden in deciding when to terminate maintenance and cure.").

If the employer unilaterally decides to stop paying maintenance and cure to a seaman, the seaman may reassert his rights by bringing an action to reinstate maintenance and cure. In such an instance, "it becomes the [shipowner's] obligation to reinstate such payments." McMillan, 885 F. Supp. at 468. "If the [shipowner] refuses to reinstate maintenance and cure, it bears the burden of establishing that it had a legitimate reason for so refusing." Id. The shipowner can meet this burden by providing "unequivocal" evidence that the seaman has reached maximum cure. Johnson v. Marlin Drilling Co., 893 F.2d 77, 79 (5th Cir. 1990) (citing Tullos v. Res. Drilling, Inc., 750 F.2d 380, 388 (5th Cir. 1985)).

Often, employers will hire doctors to perform defense exams or to obtain "second opinions" that are contrary to the treating doctor’s opinions about the prognosis or diagnosis of an injured seaman’s medical condition as part of an effort to end maintenance and cure or not pay for a medical procedure. The few courts that have addressed such a situation have often sided with the seaman, holding that a "second opinion" does not end the seaman’s right to maintenance and cure. Bloom v. Weeks Marine, Inc., 227 F.Supp.2d 1273 (M.D. Fla. 2002), dealt with a situation where the employer requested for the court to issue an order requiring the injured seaman to attend a defense exam, because it "has an undisputed legal right, and in fact legal obligation, to conduct a maintenance and cure medical examination." Id. at 1274. In rejecting the employer’s argument, the court held "Defendant has not demonstrated whether the extent of that includes the right to have its expert witness physician examine Plaintiff pursuant to a ‘maintenance and cure exam.’" Id. at 1275.

By requesting and attempting to rely upon a "second opinion" to stop maintenance and cure, it should be argued to the court that the employer’s actions run afoul of the policy underlying their maintenance and cure obligations, only serving to encourage employers to contest the opinions of qualified medical professionals when it is in their best interest to do so. See Boyden v. American Seafoods Company, 2000 A.M.C. 1512, 1513 (W.D. Wash. 2000) ("To ensure that litigation is not invited and delays are not caused, it is the medical, not the judicial, determination of 'maximum medical improvement' that terminates the right to maintenance and cure.") (citing Vitco v. Joncich, 130 F. Supp. 945, 949 (S.D. Cal. 1955), aff'd., 234 F.2d 161 (9th Cir. 1956)); see also Gouma v. Trident Seafoods, Inc., No. C07 1309, 2008 WL 2020442, at *3 (W.D. Wash. Jan. 11, 2008)

IV. PROCEDURES TO OBTAIN MAINTENANCE AND CURE

There are various methods that can be used to obtain maintenance and cure for an injured seaman. Often, lawyers representing the injured worker and the employer will engage in a series of threatening correspondence and emails without calling each other to try and reach a resolution of the maintenance and cure issue. When there is a delay in an injured seaman receiving maintenance and cure, the seaman suffers more than the employer and its carrier as the seaman usually will need maintenance to pay for bills and cure to assist with healing his medical problems. Thus, an attorney representing an injured seaman must find the quickest and most efficient way to resolve a maintenance and cure dispute. When, despite your best efforts, the employer and its carrier refuse to follow the general maritime law and properly provide maintenance and cure, the following procedures are available to assist with obtaining maintenance and cure:

  1. Entering into an agreement on the issues with the employer/insurance carrier without resorting to litigation.
  2. Requesting the insurance carrier to assign a new adjuster or third-party adjuster to handle the maintenance and cure dispute.
  3. Agreeing to mediation to resolve maintenance and cure issues. This can occur without filing a lawsuit. Often the selection of a defense attorney well-versed in maritime law can assist in persuading a recalcitrant employer or insurance company to comply with their duty to provide maintenance and cure or suffer the consequences of having to pay legal fees to both the injured seaman’s lawyer and its own counsel along with punitive damages. However, the injured seaman may have to compromise on the maintenance rate or in the selection of a doctor who was not his first choice to provide treatment.
  4. Filing an action in either Federal Court or State Court to resolve the issues. An injured seaman has the right to join his maintenance and cure claims with his other general maritime law claims and Jones Act claim and obtain a jury trial of all such claims. An injured seaman is not obligated to join all claims in one lawsuit and can either sue separately for maintenance and cure or file one suit and then sever a maintenance and cure claim for an expedited trial thereof by the court. Tate v. American Tugs Inc., 634 F.2d 869 (5th Cir. 1981). The following are various procedural mechanisms for litigating a maintenance and cure claim:
  1. Several courts have granted a seaman’s motion to compel maintenance and cure. Hughes v. Hunter Marine Transport, Inc., 1997 WL 834547 (M.D. Ten. Aug. 7, 1997) (unpublished) (granting motion to compel maintenance and cure); Hale v. Excell Marine Corp., 2008 WL 4443098, at *2 (W.D. Ky. Sept. 26, 2008) (unpublished) (granting seaman's motion for maintenance and cure); Kezic v. Alaska SEA, 2004 WL 3007095, at *1 (W.D. Wash. Sept. 1, 2004) (holding that the seaman was entitled to an order compelling payment of maintenance and cure).
    In Gouma v. Trident Seafoods, Inc., No. C07 1309, 2008 WL 2020442 (W.D. Wash. Jan. 11, 2008), a seaman filed a motion to compel cure asking the court to order the shipowner to pay for a discogram/CT after the shipowner indicated that it would not pay for the procedure. Id. at *1. The shipowner refused to pay for the procedure because a physician conducting an independent medical examination determined that the seaman had reached maximum cure and that the discogram/CT was unnecessary. Id. In granting the seaman's motion, the court reasoned,

    Plaintiff is entitled to a presumptive continuance of maintenance and cure payments. Even if a summary judgment standard of review were to be applied in this context, disputed questions of material fact (e.g., the differing opinions of Plaintiffs and Defendants' physicians) would simply mean that plaintiff would be entitled to continue to receive maintenance and cure until the matter was ultimately resolved at trial. The procedural model proposed by Defendants would mean that a vessel owner could escape maintenance and cure obligations at any time prior to trial simply by finding a physician who would pronounce the seaman at maximum medical cure. This Court is not prepared to depart from the [Vaughan] standard of resolving all doubts concerning maintenance and cure in the seaman's favor to that extent. Defendants have cited no opinion from the Ninth Circuit or the Supreme Court indicating that this historic doctrine has fallen to that level of disfavor. Similarly, Defendants may not unilaterally decide, based on the opinion of their own physician, that a seaman has reached maximum medical cure. At the very least, it violates the summary judgment standard which they themselves are championing in the face of genuine issues of material fact regarding the extent of Plaintiffs cure. Defendants are not entitled to summarily (and unilaterally) determine the question in their own favor. More significantly, Defendants’ action appropriates to themselves the adjudicatory function of this Court the issue of maximum cure is one of the ultimate issues before the Court in any maritime injury litigation, and no action may be taken on it without an order of the court.

    Id. at *2 3.

    Importantly, however, if a seaman files a motion to compel maintenance and cure, they must be prepared to prevail on a summary judgment standard. In Coastal Villages Pollock, LLC v. Naufahu, No. C13-1234, 2014 WL 1053126, at *3 (W.D. Wash. Mar. 19, 2014), the court stated, "in spite of the canon of admiralty law that all doubts and ambiguities should be resolved in favor of the seaman, the summary judgment standard should be applied to a pre-trial motion to compel maintenance and cure." The court denied the seaman’s motion because he conceded that "he cannot prevail under the summary judgment standard with the evidence currently available." Id. at *4; see also Padilla v. Maersk Line, Ltd., 603 F.Supp.2d 616, 622 (S.D.N.Y. 2009) ("courts in this district routinely analyze motions to compel maintenance under a summary judgment standard").

  2. The filing of a motion for summary judgment is more often the procedure used by courts to determine maintenance and cure issues before trial. Messier v. Bouchard Transp., 688 F.3d 78, 82 (2d Cir. 2012); Martin v. Abdon Callais Offshore, LLC, No. 10-3043, 2011 WL 1982859 (E.D. La. May 20, 2011); Baucom v. Sisco Stevedoring, LLC, 506 F. Supp.2d 1064 (S.D. Ala. 2007). Despite strong opinions from the Supreme Court on an employer’s obligation to provide maintenance and cure without an administrative burden to the seaman and to resolve all doubts in favor of a seaman, courts often will often deny motions for summary judgment on maintenance and cure based on issues of material fact, particularly in the event of conflicting medical opinions. See Bland v. Omega Protein, Inc., No. 14-0127, 2016 WL 280403, at *3 (W.D. La. Jan. 21, 2016); Zimmerman v. F/V Leslie Lee, Inc., No. 6:13-48, 2015 WL 8041958, at *3 (D. Or. Dec. 4, 2015)("the summary disposition of maintenance and cure claims is generally not appropriate because the extent of a seaman’s injuries and whether a seaman has reached MMI are factual rather than legal questions."). For example, in Minks v. AEP River Operations, LLC, . No. 09-543, 2012 WL 1142932, at *5 (S.D. Ohio Apr. 5, 2012), the court denied cross motions for summary judgment on the seaman’s entitlement to maintenance and cure because although plaintiff’s treating physician attributed plaintiff’s injuries to her shipboard injury, his testimony was undercut in some respects on cross examination and defendant had a conflicting IME opinion.

    Questions of fact may arise in the context of whether an illness or injury arose while the seaman was in service to the vessel. For example, in Ramirez v. Carolina Dream, Inc., 760 F.3d 119, 124 (1st Cir. 2014), the district court granted summary judgment in favor of the defendant employer on the basis that the plaintiff failed to introduce any evidence that his rare condition of aplastic anemia manifested itself while he was in service of the vessel. The First Circuit reversed, stating that the plaintiff "is not obliged to prove a cause and-effect medical basis for the disease." Id. at 125. Rather, the duty to pay maintenance and cure "arises when [the seaman] is taken ill from whatever cause during a voyage." Id. The court found that because the seaman presented evidence that he was neither experiencing symptoms of the disease nor disabled at the time he began working aboard the vessel, but left the vessel feeling "very ill," there was a sufficient factual basis for his maintenance and cure claim to proceed to trial. Id. at 125-26.

    In Messier, the court stated that the "rule" regarding this issue is that "maintenance and cure covers any injury or illness that occurs while in the service of the ship. All that matters is when the injury occurred, not when it started to present symptoms." 688 F.3d at 85. The court granted summary judgment in favor of the seaman regarding his entitlement to maintenance and cure because the "only evidence submitted at summary judgment establishes [the seaman] had lymphoma during his maritime service," and despite the possibility that the disease unknowingly existed prior to his service to the vessel, his lymphoma "occurred" during his service to the vessel and any ambiguities or doubts should be construed in favor of the seaman. Id. at 84-89.

    Moreover, if there is a question of fact with respect to a McCorpen defense, a court will likely not grant a summary judgment motion concerning a seaman’s entitlement to maintenance and cure. West v. Midland Enterprises, Inc., 227 F.3d 613, 617-18 (6th Cir. 2000) (holding that because there was a genuine issue of material fact as to whether the seaman’s injuries were causally related to a previously concealed pre-existing condition, "the district court erred in granting [summary] judgment for [plaintiff] on the maintenance and cure claim").

  3. A motion for preliminary injunction. Tate, 634 F.2d at 871 (5th Cir. 1981). In determining whether to issue a preliminary injunction, the court must consider whether: (1) the movant has shown a reasonable probability of success on the merits, (2) the movant will be irreparably injured by denial of the relief, (3) granting the preliminary relief will result in even greater harm to the nonmoving party, and (4) granting the preliminary relief is in the public interest. Collick v. Weeks Marine, Inc., 680 F. Supp.2d 642, 657–58 (D. N.J. 2009). In Lopez v. Calumet River Fleeting, Inc., No. 11 C 6657, 2012 WL 1658110 (N.D. Ill. May 11, 2012), the court granted plaintiff’s motion for a preliminary injunction to increase the amount of maintenance he was receiving. The plaintiff sought to increase his maintenance payments from $15/day to $29.20/day. Id. at *3. The court analyzed the four factors and found in favor of plaintiff, stating that "[plaintiff] has a reasonable likelihood of succeeding in proving that he is entitled to maintenance at a rate of $29.20 per day" and he "may suffer irreparable harm before final resolution of his claim if he is forced to attempt to live on only half of his actual lodging and food costs." Id. at *4.
  4. Filing a declaratory judgment action. Rowan Companies, Inc. v. Griffin, 876 F.2d 26, 28–29 (5th Cir. 1989) (whether employer's legal obligation to provide injured employee with maintenance and cure had been extinguished when employee reached maximum cure was actual controversy, justiciable in declaratory judgment action, even though employee had not yet made formal or informal demand for continued maintenance and cure payments); Royal Caribbean Cruises, Ltd. v. Whitefield ex rel. Martinez, 664 F. Supp.2d 1270, 1280–81 (S.D. Fla. 2009).

    Oftentimes, a shipowner will file such an action to establish a federal forum over a concomitantly filed Jones Act claim. In the Fifth Circuit, Griffin established four factors for a court to consider in deciding whether to exercise its declaratory judgment jurisdiction over a maintenance and cure claim: (1) whether there was a pending state court proceeding that would result in the full litigation of the controversy, (2) whether the declaratory judgment complaint was filed in anticipation of litigation and is being used for forum shopping, (3) the possible inequities of permitting plaintiff to gain precedence in time and forum, and (4) the inconvenience to the parties and witnesses. 876 F.2d at 29. The Fifth Circuit concluded that when a state suit is pending that encompasses the maintenance and cure claim and has been joined with a Jones Act claim, the district court should decline to hear the declaratory judgment action. Id. at 28-29 & n.3. Other district courts have followed this line of reasoning. See Lady Deborah, Inc. v. Ware, 855 F. Supp. 871, 876 (E.D. Va. 1994) (holding that "it should avoid unnecessary entanglement with the state court proceeding"). Moreover, even where the seaman has not yet filed a separate action, a district court may decline jurisdiction over a Jones Act employer’s declaratory judgment action on maintenance and cure when it determines the action was filed "in a race to the courthouse." See Aries Marine Corp. v. Lolly, No. 05-1883, 2006 WL 681184, at *3-4 (W.D. La. Mar. 16, 2006).

  5. Litigating maintenance and cure issues at a jury or bench trial along with the Jones Act and unseaworthiness claims. At trial, for the seaman to carry his "relatively light" burden of proving his entitlement to maintenance and cure, he must establish by a preponderance of the evidence that (1) he was employed as a seaman, (2) the injury/illness occurred, manifested, or was aggravated while in the ship’s service, (3) the wages to which he is entitled, and (4) expenditures for medicines, medical treatment, board, and lodging. Weeks Marine, Inc. v. Wright, No. 14-231, 2015 WL 4389918, at *5 (S.D. Ala. July 15, 2015); Johnson v. Cenac Towing Inc., 468 F.Supp.2d 815, 832 (E.D. La. 2006), vacated on other grounds, 544 F.3d 296 (5th Cir. 2008); Spikes v. Blessey Marine, Inc., No. 11-162, 2013 WL 6438989, at *13 (S.D. Miss. Dec. 9, 2013). This "light" burden "is consistent with the notion that this doctrine was crafted so that a seaman's right to maintenance and cure is so inclusive as to be relatively simple, and can be understood and administered without technical considerations." Baucom v. Sisco Stevedoring, LLC, 506 F.Supp.2d 1064, 1073 (S.D. Ala. 2007) (citing Flores v. Carnival Cruise Lines, 47 F.3d 1120, 1123 (11th Cir. 1995)). "A presumption of entitlement" exists in the seaman’s favor, and "all doubts as to entitlement, defenses, necessity of treatment and attainment of maximum cure are resolved against the shipowner." Seri v. Queen of Hearts Cruises, Inc., No. 01-6985, 2003 WL 21835736, at *1 (S.D.N.Y. Aug. 6, 2003) (citing Vella v. Ford Motor Co., 421 U.S. 1, 4 (1975); Vaughan v. Atkinson, 369 U.S. 527, 532 (1962)).

    Taking each factor in turn, the first factor, if seaman status is an issue, will be decided under the traditional Chandris 30% test. George v. Cal-Dive Int’l, Inc., No. 09-5472, 2010 WL 2696876, at *6 (E.D. La. July 1, 2010) ("Indeed, the test for seaman status in maintenance and cure actions is the same as the inquiry for standing under the Jones Act.").

    The second factor likely will be the basis for the most vigorous dispute when a shipowner is contesting maintenance and cure, particularly when the seaman’s claim is based

V. CONCLUSION

Even though maintenance and cure is owed to an injured seaman by his employer and the seaman is entitled to receive maintenance and cure without having to overcome artificial administrative burdens, employers will often refuse to properly provide maintenance and cure. While Atlantic Sounding Co., Inc. has provided the injured seaman with the right to claim he is entitled to punitive damages and legal fees as a result of the employer not providing maintenance and cure, the exact procedures a seaman must use to obtain maintenance and cure and the burden of proof to obtain maintenance and cure are not universally administered by the courts.


1 Superseded on other grounds by statute, Jones Act, 46 U.S.C. § 30104.

The shipowner's duty to pay maintenance and cure "continues until the seaman . . . reaches the point of maximum medical recovery. " Schoenbaum, supra, § 6 28, at 393 (citing Farrell, 336 at 522 23). "'Maximum medical cure' is reached when the seaman recovers from the injury, the condition permanently stabilizes or cannot be improved further." McMillan v. Tug Jane A. Bouchard, 885 F. Supp. 452, 459 (E.D.N.Y. 1995); Morales v. Garijak, Inc., 829 F.2d 1355, 1359 (5th Cir. 1987) (maximum medical cure occurs at "the point at which further treatment will probably not improve [the seaman's] condition.") (citing Springborn v. American Commercial Barge Lines, Inc., 767 F.2d 89, 95 (5th Cir. 1985); Miolta v. Johns Hopkins Univ. Applied Physics Lab, 839 F. Supp 351, 359 (D. MD. 1993); Andrews v. Dravo, 288 F. Supp 142, 147 (W.D. Pa. 1968) (even where seaman's medical condition is "incurable," "duty of providing maintenance and cure extends to the time when no improvement in the condition of the seaman may be reasonably expected to result from nursing, care and medical treatment").

In Vaughan v. Atkinson, 369 U.S. 527, 529–531 (1962), the U.S. Supreme Court held that the general maritime law permitted the recovery of attorney's fees for the "callous" and "willful and persistent" refusal to pay maintenance and cure. The Court recently addressed whether a seaman can recover punitive damages against his employer for failing to provide maintenance and cure. See Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404 (2009). The Court held that punitive damages, along with a seaman’s legal fees, are available against an employer who willfully failed to provide maintenance and cure to its seaman employee.


2 Superseded on other grounds by statute, Jones Act, 46 U.S.C. § 30104.

there are ambiguities or doubts [related to maintenance and cure], they are resolved in favor of the seaman." Id. (citing Warren v. United States, 340 U.S. 523, 71 S. Ct. 432, 95 L. Ed. 503 (1951)). The Court further explained:

the seaman's right to maintenance and cure is so inclusive as to be relatively simple, and can be understood and administered without technical considerations. It has few exceptions or conditions to stir contentions, cause delays, and invite litigations.

Farrell, 336 U.S. at 516; see also, Vella, 421 U.S. at 4.

The shipowner's liability should not be narrowly confined nor "whittled down by restrictive and artificial distinctions" which defeat its broad purposes. Aguilar, 318 U.S. at 735. "If leeway is to be given in either direction, all the considerations which brought the liability into being dictate it should be in the sailor's behalf." Id. at 735–36. In other words, any ambiguity or doubt is to be resolved in favor of the seaman. Barto v. Shore Construction, LLC, 801 F.3d 465 (5th Cir. 2015). "[T]he attainment of maximum medical cure must be resolved in favor of the seaman and in favor of payment of maintenance and cure." Moore v. SALLY, 27 F. Supp.2d 1255, 1262, 1998 A.M.C. 1707 (W.D. Wash. 1998).

A shipowner's duty to pay maintenance and cure is so broad that it arises regardless of the shipowner's fault or negligence or the seaman's contributory fault. Aguilar, 318 U.S. at 730 31. Upon receiving a demand for maintenance and cure, an employer is not required to make payments immediately, but may undertake a reasonable investigation. Morales v. Garijak, Inc., 829 F.2d 1355, 2358 (5th Cir. 1987). However, the employer must conduct its investigation quickly and diligently. See Sullivan v. Tropical Tuna, Inc., 963 F.Supp. 42, 45 (D. Mass. 1997) (stating that "[o]ne month, however, was far longer than [the employer’s] insurer needed to conduct a reasonable investigation," holding that the employer breached its duty to provide maintenance and cure timely "by delaying one month before approving Sullivan's surgery, which was both unreasonable and willful.").


3 An employer may not be able to show unequivocal evidence of maximum cure if there are conflicting medical opinions. Tullos v. Res. Drilling, Inc., 750 F.2d 380, 388 (5th Cir. 1990); see also Lee v. Metson Marine Servs., Inc., Civ. No. 11 00169 ACK BMK, 2012 WL 5381803, at *3 (D. Haw. Oct. 31, 2012) (denying shipowner's motion to terminate maintenance and cure because the conflicting medical affidavits provided by the parties lacked "an unequivocal endorsement that [Plaintiff] attained maximum cure") (quoting Sefcik v. Ocean Pride Alaska, Inc., 844 F. Supp. 1372, 1373 (D. Alaska 1993)).

("Defendants may not unilaterally decide, based on the opinion of their own physician, that a seaman has reached maximum medical cure.").

When an employer presents evidence of a defense doctor’s opinions that contradict the treating doctor’s opinions, an argument can be made that this simply creates an ambiguity as to whether the seaman is in need of further medical treatment; i.e., has reached maximum medical cure. A "seaman must only demonstrate that there exists ambiguity on the question of whether he has achieved maximum cure." Etheridge v. Rainier Investments, Inc., 1998 A.M.C. 2978, 2979 80 (D. Alaska 1998).

Where there are opposing opinions of qualified medical experts on the issue of the treatment of a seaman's illness, the employer should resolve the issue in favor of awarding benefits. In the absence of unequivocal medical testimony that a seaman has reached maximum medical cure, the employer must provide the medical treatment prescribed by the seaman's treating physician. Moore, 27 F. Supp.2d at 1298 ("Any doubt as to entitlement, necessity of medical treatment, and the attainment of maximum medical cure must be resolved in favor of the seaman and in favor of payment of maintenance and cure."). When there are ambiguities or doubts, they are resolved in favor of the seaman. Warren, 340 U.S. at 530 (A seaman who shared one bottle of wine with two companions on shore leave did not consume sufficient wine to be under influence of intoxicating liquor when he fell down from a small balcony, used some care, and hence was not guilty of such willful misbehavior as would deprive him of his right to maintenance and cure.).

Similarly, the Fifth Circuit Court of Appeals, in Johnson v. Marlin Drilling Co., 893 F.2d 77, 79 (5th Cir. 1990), stated:

The broad purposes which maintenance and cure payments are to serve should not be defeated "by restrictive and artificial distinctions. . . . If leeway is to be given in either direction, all the considerations which brought the liability into being dictate it should be in the sailor’s behalf." Id. at 735, 63 S. Ct. at 936. In a later case, the Supreme Court stated that "when there are ambiguities or doubts [as to a seaman’s right to receive maintenance and cure], they are to be resolved in favor of the seaman." Vaughan v. Atkinson, 369 U.S. 527, 532, 82 S. Ct. 997, 1000, 8 L. Ed.2d 88 (1962). A determination to terminate a seaman’s right to maintenance and cure must be unequivocal. Tullos v. Resource Drilling, Inc., 750 F.2d 380, 388 (5th Cir. 1985) (emphasis supplied).

Absent an unequivocal justification to terminate a seaman’s maintenance and cure, a shipowner may subject itself to liability for punitive damages and/or attorney fees if it decides to do so nonetheless. In a recent case out of the Eastern District of Louisiana, the district court judge denied a defendant’s summary judgment motion on plaintiff’s punitive damages claim relating to an employer’s denial of maintenance and cure. Rowan v. Chem Carrier Towing, LLC, No. 12-712, 2015 WL 2097572 (E.D. La. May 5, 2015). There were conflicting medical opinions between plaintiff’s treating physicians and the defendant’s IME doctors. In support of its motion, the employer submitted medical opinions from three physicians stating that the seaman’s injures were not causally related to the underlying incidents. However, the court found that the employer only relied on one doctor’s opinion in justifying its initial decision to deny maintenance and cure, and therefore there was a genuine issue of fact as to whether this constituted arbitrary and capricious behavior such that it was liable for punitive damages. The court stated that "when a shipowner chooses one doctor from many and follows his recommendation," whether this behavior is "arbitrary and capricious" is a question for the jury. Id. at *6. Therefore, not only is a shipowner precluded from relying on its IME physician’s opinion in the face of conflicting opinions from a seaman’s treating physicians, but it may also be liable for punitive damages and attorney’s fees for doing so.

Further, a shipowner cannot rely solely on its own internal investigation to justify a conclusion that a seaman is not entitled to maintenance and cure benefits. In Jefferson v. Baywater Drilling, LLC, 2015 WL 365526, 2015 A.M.C. 571, 581 (E.D. La. Jan. 27, 2015), the court held a shipowner liable for punitive damages because its "investigation in this case was impermissibly lax." The shipowner relied on a conclusion by its human resources manager, who conducted his own investigation and determined that the plaintiff’s injuries were caused by a pre-existing condition and thus he was not entitled to maintenance and cure. The court found that the "[d]efendant made a medical determination without medical evidence," which amounted to an arbitrary and capricious denial of maintenance and cure. See also Breese v. AWI, Inc., 823 F.2d 100, 104-05 (5th Cir. 1987) ("reliance on the advice of counsel, as opposed to the advice of a physician, is insufficient to constitute a reasonable investigation of a seaman’s right to maintenance and cure").

An employer’s duty to pay maintenance and cure is not absolute. Upon receipt of a demand for such benefits, an employer has the right to conduct its own investigation as to the veracity of the claim. McWilliams v. Texaco, Inc., 781 F.2d 514, 519 (5th Cir. 1986) ("Where doubt exists—as it reasonably did here—a vessel owner may request reasonable documentation from a seaman before it commences payment of maintenance that may prove both lengthy and expensive."). If a "diligent" investigation by the shipowner indicates that the seaman’s claim is not documented by the submission of medical reports or his claim is not legitimate, then it has met its burden to deny maintenance and cure benefits. Bland v. Omega Protein, Inc., No. 14-0127, 2016 WL 280403, at *3 (W.D. La. Jan. 21, 2016).

And, of course, a shipowner can assert a McCorpen defense to withhold maintenance and cure when it can establish (1) when it hired the seaman, the seaman intentionally misrepresented or concealed pertinent medical facts; (2) the non-disclosed facts were material to the company's decision to hire the claimant; and (3) there was a causal link between the concealed pre-existing injury and the employment injury. See Atlantic Sounding v. Petrey, 2010 WL 4746907, at *2 (5th Cir. 2010) (citing McCorpen v. Central Gulf S.S. Corp., 396 F.2d 547, 549 (5th Cir. 1968)).

An important principle to keep in mind when addressing a McCorpen defense is that the third prong of the defense, which requires a "causal link between the pre-existing disability that was concealed and the disability incurred during the voyage," does not equate to a finding that the concealed pre-existing injury was a legal cause of the employment injury. The law is clear that this "connection" prong of the McCorpen analysis is a wholly distinct analysis from a standard causation analysis. Johnson v. Cenac Towing, Inc., 599 F.Supp.2d 721, 728-29 (E.D. La. 2009). In Johnson, the Court stated:

Whatever else might be said about this "same body part" test, it is clear that it is not a causation analysis in the ordinary sense. After all, proof that the first injury and the second injury affected the same body part does little to establish that one injury caused the other, or that the plaintiff's concealment caused the second injury. The inquiry is simply whether the new injury is related to the old injury, irrespective of their root causes.

Id4. Therefore, a successful McCorpen defense does not equate to a finding or admission that Plaintiff was contributorily negligent. Id. at 729 ("The ‘same body part’ finding is not tantamount to a finding that [Plaintiff] negligently caused his own injury through some act or omission.").

Two recent decisions of note regarding the McCorpen defense are Boudreaux v. Transocean Deepwater, Inc., 721 F.3d 723 (5th Cir. 2013) and Meche v. Doucet, 777 F.3d 237 (5th Cir. 2015). In Boudreaux, the Fifth Circuit reversed the district court’s opinion and established that an employer does not have an independent cause of action against a seaman to recover previously paid maintenance and cure payments after it prevails on a McCorpen defense. Rather, such payments "can be recovered only by offset against the seaman's damages award—not by an independent suit seeking affirmative recovery." 721 F.3d at 728. The court reasoned that if a Jones Act employer is able to pursue and obtain an affirmative judgment for monetary damages against a seaman, "although most likely uncollectible, the judgment would stand as a serious impediment to the seaman's economic recovery, and its threat would have a powerful in terrorem effect in settlement negotiations." Id. at 727. Moreover, endorsement of such a counterclaim "would mark a significant retreat from our hoary charge to safeguard the well-being of seamen." Id. One district court outside of the Fifth Circuit has addressed the same issue since Boudreaux and reached the same conclusion. Block Island Fishing, Inc. v. Rogers, No. 14-14248, 2016 WL 837928, at *3 (D. Mass. Mar. 3, 2016).

The majority opinion in Boudreaux did not explicitly state whether the proper procedural vehicle for an employer to assert its entitlement to an offset for wrongfully paid maintenance and cure benefits is through an affirmative defense or a counterclaim. However, Judge Clement wrote a concurring opinion to assert her belief that "that an employer may assert a counterclaim for maintenance and cure as a set-off to Jones Act damages when restitution will not result in an undue adverse impact on the seaman, and when maintenance and cure is not entirely duplicative of Jones Act damages." 721 F.3d at 729.

In Sharpe v. Bertucci Contracting Co. LLC, No. 13-6101, 2014 WL 4396086, at *2 (E.D. La.


The "same body part" test establishes that "the McCorpen defense will succeed if the defendant can prove that the old injury and the new injury affected the same body part." Id. at 728 (citing Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 176 (5th Cir. 2005)).

Sept. 5, 2014), the same district court judge who originally held in Boudreaux that an employer did have a right to restitution ruled on a plaintiff’s motion to dismiss a counterclaim that sought either reimbursement of contested maintenance and cure payments or a set-off against a future damages award. The judge granted the motion to dismiss the portion of the counterclaim that sought reimbursement, but denied the motion with respect to the portion of the counterclaim for an offset. The judge found that the employer adequately stated its claim and thus did not rule on "whether a defendant asserting the type of set-off right at issue here is required to do so in the form of an affirmative defense or counterclaim." Id.

However, in a Minute Order entry by a magistrate judge in the Eastern District of Louisiana following Boudreaux, the court denied the counterclaim portion of a defendant’s Motion for Leave to File Amended Answer and Counterclaim to assert its right to a set-off. The court did grant leave to amend the answer and raise the affirmative defense, stating that "the Court believes that a counterclaim is unnecessary and that Defendant’s right to set-off is adequately preserved by amending its answer to raise that defense." Ellis v. Scot C. Marine Towing, LLC et al., No. 2:14-cv-02284 (Rec. Doc. 31, filed 02/25/15) (E.D. La.). Therefore, a seaman should have a shield to a counterclaim asserted by a Jones Act employer regarding its right to a set-off against a damage award for wrongfully paid maintenance and cure benefits, even if the counterclaim does not claim a right to reimbursement.

In Meche, the Fifth Circuit confronted the issue of whether a Jones Act employer is entitled to base a McCorpen defense on misrepresentations made by the seaman to its predecessor company. 777 F.3d at 245-46. Key Marine Services, L.L.C. purchased the marine division of Moncla Marine in 2006, including all of its assets and liabilities. Id. at 245. Moncla had hired the plaintiff and subjected him to a pre-employment medical examination, during which the plaintiff made material misrepresentations concerning his prior medical conditions. When Key purchased Moncla, Key reviewed Moncla’s pre-employment medical examination protocols, and finding them sufficient, re-hired all of Moncla’s existing employees, including the plaintiff. Id. Plaintiff subsequently sued Key for injuries suffered in the course of his employment as a seaman. With respect to plaintiff’s maintenance and cure claim, Key raised the McCorpen defense, arguing that because it purchased Moncla’s assets, plaintiff’s misrepresentation to Moncla "is tantamount to a misrepresentation to Key for the purposes of the McCorpen defense." Id. at 246.

The court agreed with Key, stating that "it makes little economic or logical sense to require a successor company to reexamine its predecessor's employees solely for the purpose of avoiding maintenance and cure liability for their previously concealed medical conditions." Id. The court further reasoned, "More importantly, an intervening asset sale does not reduce the risk of injury to the seaman or to others resulting from the injured seaman's presence on the ship." Id. The court took note to limit the impact of its decision, stating, "The rule we announce today only applies when a company purchases the division and keeps the predecessor's seamen in its employ. It would not, for example, punish a seaman who leaves his or her employer for an entirely unrelated company." Id. That being said, employers undoubtedly will test the limits of the rule, particularly as oilfield service providers consolidate in the face of the industry’s current economic crisis.


5The Weeks Marine court added a fifth requirement that the seaman prove that "the injury/illness occurred without willful misbehavior by the seaman." However, this issue likely will arise in the form of an affirmative defense for which the defendant will bear the burden. See Aguilar v. Standard Oil Co. of N.J., 318 U.S. 724, 731 (1943) ("Only some willful misbehavior or deliberate act of indiscretion suffices to deprive the seaman of his protection."); Johnson v. Cenac Towing, Inc., 599 F.Supp.2d 721, 726 (E.D. La. 2009) (recognizing this as one of the "few and narrowly applied" defenses to a maintenance and cure claim).

on a disease that "occurred" or "manifested" during his service to the vessel. See, e.g. Ramirez, 760 F.3d 119; Messier, 688 F.3d 78. Importantly, however, the injury or medical condition upon which the seaman is basing his maintenance and cure claim need not have necessarily occurred aboard the vessel and can stem from a pre-existing injury, illness, or other medical condition (subject to the McCorpen defense). Messier, 688 F.3d at 82. The seaman must establish this factor by a preponderance of the evidence. See Siders v. Ohio River Co., 351 F. Supp. 987, 933 (W.D. Penn. 1970) (denying seaman’s maintenance and cure claim because seaman failed to establish by a preponderance of the evidence that his injury occurred, was aggravated, or manifested itself while in service to the ship).

The third factor is pertinent to the seaman’s claim for any unearned wages through the end of the voyage during which he was injured or became ill. Dowdle v. Offshore Exp., Inc., 809 F.2d 259, 263 (5th Cir. 1987) (citing multiple cases and treatises for the proposition that "the seaman's rights to unearned wages are not separable from maintenance and cure"). In most Circuits, the seaman’s unearned wages can be determined through a "but for" analysis; in other words, what the seaman would have earned during the voyage but for the injury. Padilla v. Maersk Line, Ltd., 603 F.Supp.2d 616, 625-26 (S.D.N.Y.2009) (citing cases from other Circuits that employ this analysis). Anticipated overtime pay and tips can and should be included in this analysis. Padilla contains a detailed and informative discussion on this issue.7

Finally, with respect to how a seaman can carry his burden of proof on the fourth factor and demonstrate how much he is owed in maintenance for his living expenditures, the Fifth Circuit has stated:

A seaman is entitled to the reasonable cost of food and lodging, provided he has incurred the expense. Proving reasonable costs admits of many forms of proof. Courts allow proof of the seaman's actual expenditures and expert testimony about the cost of living in the area of the seaman's residence. Courts also allow evidence of maintenance rates negotiated by unions, per diem allowances for seamen in port when the vessel's facilities are unavailable, and, of course, the cost of food and lodging equivalent to food and lodging on the vessel, if such exist on land. The use of


6The exception to this rule is the Sixth Circuit, which "has chosen not to follow the ‘but for’ test adopted in other jurisdictions" and has "determined that unearned wages should be calculated based on the vessel’s post-injury custom and practice of calculating unearned wages, absent any modification of unearned wage calculation in the applicable collective bargaining agreement." Smith v. Waterman S.S. Corp., No. 10-12759, 2012 WL 488869, at *3 (E.D. Mich. Feb. 15, 2012).

7It is also important to note that a collective bargaining agreement may limit, although not abrogate, a seaman’s entitlement to maintenance and/or unearned wages. Padilla v. Maersk Line, Ltd., 603 F.Supp.2d at 624-25; Frederick v. Kirby Tankships, Inc., 205 F.3d 1277, 1290-92 (11th Cir. 2000).evidence of actual expenses should not obscure the fact that this evidence is offered to prove not only actual, but also reasonable expenses. Thus, maintenance awards should depend on the reasonable cost of food and lodging for a seaman living alone in the seaman's locality.

Hall v. Noble Drilling (U.S.) Inc., 242 F.3d 582, 587-88 (5th Cir. 2001). With respect to medical expenses, if the court finds that the seaman is entitled to an award for future curative treatment, the court cannot cut off the seaman’s maintenance because logically the seaman has not reached maximum medical improvement. Boudreaux v. United States, 280 F.3d 461, 469 (5th Cir. 2002). A future cure award cannot be duplicative of an award for future medical expenses based on the seaman’s tort claim. Id. However, if a seaman is held to be comparatively negligent and his award for past and/or future medical expenses is reduced accordingly, an award for cure cannot be similarly reduced because it sounds in contract as opposed to tort. Id.

An award for future maintenance and cure generally is not awarded in a lump sum. Pelotto v. L&N Towing Co., 604 F.2d 396, 401 (5th Cir. 1979). In order to obtain such an award, a seaman must establish "a period that can be definitely ascertained" for which he is entitled to future maintenance and cure. Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 531-32 (1938). The Fifth Circuit has held that a treating physician’s testimony that the plaintiff would reach maximum medical improvement at some time during a six-month timespan was insufficient to create a question for the jury as to what the proper duration for future maintenance was. Springborn v. Am. Commercial Barge Lines, Inc., 767 F.2d 89, 95-96 (5th Cir. 1985). However, if a treating physician can testify with specificity as to an anticipated date of MMI, then a lump sum award of future maintenance and cure may be appropriate. Lirette v. K&B Boat Rentals, Inc., 579 F.2d 968, 969 (5th Cir. 1978); Diamond Offshore Mgmt. Co. v. Cummings, No. 01-08-00647, 2010 WL 1611391, at *6-7 (Tex. App. Apr. 22, 2010) (holding that the United States Supreme Court "has clearly indicated" that future cure may be awarded in a lump sum").

Once the seaman has established that he is entitled to maintenance and cure, the burden then shifts to the defendant to prove that the seaman has reached the point of maximum medical improvement. Id.; Costa Crociere, S.p.A. v. Rose, 939 F.Supp. 1538, 1548 (S.D. Fla. 1996); McMillan v. Tug Jane A. Bouchard, 885 F.Supp. 452, 459 (E.D.N.Y. 1995), abrogated on other grounds, 788 F.3d 939 (2d Cir. 2015). Maximum medical improvement occurs when "it appears that the seaman’s condition is incurable, or that future treatment will merely relieve pain and suffering but not otherwise improve the seaman’s physical condition." Pelotto, 604 F.2d at 400. This is purely a factual question, not a legal one, and again, all doubts are to be resolved in favor of the seaman. Seri, 2003 WL 21835736, at *1 (citing Breese v. AWI. Inc., 823 F.2d 100, 104 (5th Cir.1987)).

Finally, a seaman can recover additional damages on a maintenance and cure claim "if the shipowner’s failure to pay maintenance and cure caused pain and suffering by prolonging or aggravating the initial injury," as well as punitive damages and/or attorney’s fees by showing that the employer’s failure to pay maintenance and cure was arbitrary and capricious. Hicks v. Tug PATRIOT, 788 F.3d 939, 942-45 (2d Cir. 2015). To prove an employer's conduct was arbitrary and capricious, a seaman must do more than prove the employer’s conduct was unreasonable. Rather, the seaman must show that the employer "has exhibited callousness and indifference to the seaman’s plight." Manderson v. Chet Morrison Contractors, Inc., 666 F.3d 373, 383 (5th Cir. 2012).