The fighter, the show-off and the toenail: navigating the murky waters of maintenance and cure in the USA

A crew member who has been celebrating with friends on shore leave is injured. Does the shipowner have to pay for his medical treatment? This and other scenarios are explored in the context of the shipowner’s duty to pay maintenance and cure.

The scenarios

A crew member has a verbal argument with a steward and kicks a chair in frustration, breaking his foot. Does the shipowner have to pay for his medical treatment? Another crew member has too much to drink while on temporary shore leave and attempts to impress his fellow crew member by trying to jump on a table, resulting in a back injury requiring surgery. Does the shipowner have to pay for the crew member’s expensive surgical procedure? Later in the voyage, the chief mate develops a badly infected ingrown toenail. While receiving treatment ashore, his doctor discovers he also has fungal meningitis. Is the shipowner responsible for the crew member’s lengthy hospital stay?

These scenarios and the questions they raise are significant, especially if the crew member is a US seafarer and/ or the shipowner is based in the USA and its crew members’ contracts are governed by US law. General maritime law in the USA requires shipowners to pay subsistence costs and medical expenses to a seafarer who is injured or falls ill while in the service of the ship. This is commonly referred to as the shipowner’s duty to pay maintenance and cure. If the shipowner is found to have unreasonably denied maintenance and cure, the shipowner is liable for monetary damages, punitive damages and legal fees.

What is ‘maintenance and cure’?

‘Maintenance’ is a remedy that provides the seafarer with the value of food and lodging received aboard the ship while he or she recovers from an injury or illness. Today, the rate of maintenance is usually set out in the seafarer’s employment contract or collective bargaining agreement (usually ranging from $10 to $25 a day).

‘Cure’ is the reasonable cost of medical treatment related to the seafarer’s illness or injury.

The shipowner’s duty to pay both maintenance and cure continues until the crew member reaches maximum medical improvement, often referred to as ‘MMI’. A seafarer is at MMI when the seafarer’s condition is either cured or a doctor has found that the condition cannot be further improved. Thus, the cost of any further treatment that does not improve the seafarer’s condition (curative treatment) and is simply for pain relief (palliative treatment) is not recoverable.

The duty to pay maintenance and cure is absolute and cannot be removed by a contractual clause. However, the shipowner does have a few defences to defeat a seafarer’s claim for maintenance and cure:

1. A knowing failure by the seafarer to disclose a pre-existing condition;
2. That the seafarer’s injury or illness was a result of willful misconduct;
3. That the illness or injury was not contracted or did not occur while in the service of the ship; and
4. The seafarer has reached MMI.

Each scenario presented at the start of this article raises many issues that must be addressed swiftly by the shipowner, given that the duty to pay maintenance and cure arises as soon as the injury or illness occurs. More significantly, the threat to shipowners of being held liable for punitive damages for wrongfully failing to pay maintenance and cure is a very real one in the USA, as recent court cases have shown^.1

Scenario 1

The scenario involving the seafarer who injures his foot after kicking a chair seems straightforward. The shipowner may assume that no maintenance and cure is owed as the injury is the direct result of the mariner’s misconduct. However, the shipowner should still carefully investigate the claim to determine whether the claim for maintenance and cure is legitimate.² For example, the crew member may claim that he did not kick the chair but rather tripped over it. Thus, there may be a factual dispute as to whether the injury was, in fact, the result of wilful misconduct.

Scenario 2

Regarding the crew member injured while attempting to impress his friends, a court would likely find that the crew member is entitled to maintenance and cure. First, the fact that the crew member was on shore leave does not bar him from compensation. A crew member injured during recreational activities should receive maintenance and cure, whether the injury was suffered ashore or on the ship.³ Furthermore, the crew member most likely did not intend to injure himself when he attempted to jump on the table. A seafarer is entitled to maintenance unless his injury resulted from ‘some willful misbehavior or deliberate act of indiscretion’⁴ .

Here, there is a real question as to whether a court would find the crew member’s action a deliberate act of indiscretion or reckless behaviour.

Scenario 3

The last scenario involves a crew member who is found to be suffering from an additional illness, fungal meningitis, while receiving maintenance and cure for an unrelated illness, an infected toe. A crew member receiving maintenance and cure for an injury or illness is deemed still in the service of the ship until he is at MMI. Thus, if the crew member is found to have another injury or illness while receiving maintenance and cure, he is entitled to maintenance and cure for the second condition even if unrelated to the original injury or illness.⁵

Conclusion

As these hypothetical scenarios illustrate, shipowners must be cautious when deciding whether to deny a seafarer maintenance and cure. Investigating the facts surrounding the injury or illness is essential for defeating an unwarranted claim of maintenance and cure, as well as evaluating the risk of damages being awarded if the shipowner decides not to pay. If maintenance and cure is provided, the shipowner should take an aggressive approach to treating the medical condition or injury before any other medical issues can develop. The threat of punitive damages for failing to pay maintenance and cure is real, and shipowners should keep this in mind when weighing the pros and cons of denying a claim. Courts will resolve any doubt in favour of the seafarer. The club is always available to assist when confronting these issues.

^{1 See, for example, Atlantic Sounding Co. v Townsend, 557 U.S. 404, 413 (2009) holding that general maritime law allows for punitive damages for wrongful failure to pay maintenance and cure.}

^{2 See Morales v Garijak, Inc., 829 F.2d 1355, 1360 (5th Cir. 1987).}

^{3 See Warren v United States, 340 U.S. 523, 529-30 (1951). Maintenance and cure was owed to a seafarer who, while ashore, had some wine, although not enough to cause intoxication, leaned from a balcony, grabbed hold of a rod and fell when the rod gave way.}

^{4 See Koistinen v American Export Lines, Inc., 194 Misc. 942 (N.Y. City Ct. 1948). Maintenance and cure was owed to a crew member who broke his leg when jumping from a window of a brothel following a dispute over financial arrangements. See also Bentley v Albatross S.S. Co., 203 F.2d 270 (3d Cir. Pa. 1953). In Bentley, maintenance and cure was allowed when a crew member was burned by leaning against a hot radiator while intoxicated.}

^{5 See Messier v Bouchard Transp., 688 F.3d 78, 82 (2d Cir. 2012). Maintenance and cure was owed to a crew member who was hospitalised for kidney failure after suffering an unrelated injury to his back while on the ship.}