Maritime Proctor Blog

This week’s blog post deals with a new soon-to-be reported decision from the Fifth Circuit Court of Appeals, In re 4-K Marine, LL.C..  Citation is pending, but the case can be accessed through Lexis at 2019 U.S. App. LEXIS 3095 or through the Fifth Circuit’s website, which can be found here.  The case number is 18-30348.

The primary issue before the Fifth Circuit deals with one of the oldest remedies available in Admiralty law – that of maintenance and cure owed to a seaman.  To give In re 4-K Marine proper treatment, one must have an understanding of this ancient remedy.

This decision touches on a number of relevant issues in the area of maintenance and cure.  As a consequence, this will be the first in a 3 week series on maintenance and cure.

Background and Relevant Cases on Maintenance and Cure

Maintenance and cure is a contractual form of compensation provided by the General Maritime Law to a seaman who falls ill or is injured while in the service of the vessel.[1]  Maintenance is a daily payment equivalent to the food and lodging of kind and quality the seaman would have received aboard the vessel.[2]  Cure is the obligation to reimburse incurred medical expenses, as well as to ensure the seaman receives the proper medical treatment.[3] 

According to Professors Grant Gilmore & Charles Black, in their ovular treatise The Law of Admiralty,[4] the first American legal opinion addressing this subject is from Supreme Court Justice Joseph Story in the cases of Harden v. Gordon[5] and Reed v. Canfield.[6] However, as Justice Story eloquently states in Harden v. Gordon, his research on the issue indicates the concept of these payments dates back to the Laws of Oleron and the Rules of Wisby.[7]  In other words, the idea that

The seaman bears the burden of proving three (3) things to demonstrate entitlement to maintenance and cure benefits: the seaman must (i) become ill or injured (ii) while in the service of the vessel[8] and (iii) show he lost wages or incurred expenses related to the treatment of his illness or injury.[9]   Upon receiving a claim for maintenance and cure, the seaman's employer need not immediately commence payment; he is entitled to investigate and require corroboration of the claim.[10]  The seaman bears the burden of proof on all elements of his maintenance and cure claim.[11] 

The maintenance and cure obligation terminates when the seaman reaches maximum medical cure ("MMC") or, "where it is probable that further treatment will result in no betterment" of the seaman's condition.[12]  Determination of maintenance and cure is a factual issue.[13]

In re 4-K Marine

With this legal background in mind, we now turn our attention to the panel opinion by Judge Leslie Southwick in the 4-K Marine case. 

While traversing the lower Mississippi  River in June 2015, a tug and tow – the M/V Tommy - owned and operated by Enterprise Marine Services, LLC (“Enterprise”) allided with a stationary tug and tow - the M/V Miss Elizabeth - owned by 4-K Marine (“4-K”) and operated Central Boat Rentals, Inc. (“CBR”).  Two crewmembers of employees of CBR claimed injury from the allision, and CBR paid them maintenance and cure benefits.  Normally, a moving vessel that collides with a stationary vessel is presumed to be at fault for the accident, as well as any resulting injuries.[14] 

One of the employees - the wheelman, Prince McKinley -  claimed a knee injury and a low back injury.  CBR paid for treatment to the McKinley’s knee, and also approved a back surgery.  CBR cross-claimed against Enterprise to recover the maintenance and cure benefits paid by CBR under long-standing Fifth Circuit precedent that an innocent Jones Act employer can recover from a third party tortfeasor some or all (usually based on the percentage of fault) of the maintenance and cure it pays to a seaman.[15]  Enterprise reimbursed CBR for some of the treatment but did not pay for the back surgery, arguing the back injury was not related to the allision.

After a bench trial consistent with a Limitation of Liability Act proceeding, the trial court found McKinley’s back conditions were not related to the allision.  Thus, CBR did not owe maintenance and cure for those medical treatments, even though CBR paid for them.  After vindication on the back injury, CBR sought reimbursement from Enterprise for the maintenance and cure paid by CBR but denied by Enterprise as to the back injury.  The trial court denied CBR this relief, and CBR appealed.

Writing for a unanimous panel of Judges Weiner and Costa, Judge Southwick determined CBR was not entitled to indemnity for the maintenance and cure paid in relation to the back injury, because the injury was not related to the allision, but instead pre-existed the accident.  This is relatively straightforward analysis.  Because Enterprise “did nothing that ‘caused or contributed to [a] need for maintenance and cure’ for that particular medical problem,” the Fifth Circuit reasoned Enterprise “did not owe reimbursement to CBR for McKinley’s back surgery.”[16]

The interesting aspect of this decision is the Court’s examination of practical considerations that Jones Act employers face when making a decision about whether or not to pay for maintenance and cure.  Reminding us that Fifth Circuit and Supreme Court precedent give a maritime employer the right to investigate a claim for maintenance and cure benefits before making such payments, Judge Southwick indicates that while the decision to pay or not to pay has “uncertainties,” the General Maritime Law “at least provides a means to deal with [the uncertainties]” via investigation.[17]

Next week, we will discuss the interplay between the principles discussed in this post with certain defenses available to Jones Act employers in a maintenance and cure claim, as well as the ability to investigate a maintenance and cure claim, and the evidence that should be developed.

[1] McCorpen v. Central Gulf S.S. Corp., 396 F.2d 547, 548 (5^th Cir. 1968).

[2] Hall v. Noble Drilling (U.S.) Inc., 242 F.3d 582, 586 (5^th Cir. 2001).

[3] Boudreaux v. United States, 280 F.3d 461, 468 (5^th Cir. 2002).

[4] Grant Gilmore & Charles L. Black, Jr. The Law of Admiralty, §6-6, p. 281 (2d ed. 1975).

[5] 11 Fed.Cas. 480, Case No. 6,047 (C.C.D. Me. 1823).  Justice Story decided both Harden and Reed while riding circuit.

[6] 20 Fed.Cas. 426, Case No. 11,461 (C.C.D. Mass. 1842).

[7] 11 Fed.CAs. 480, 483 (C.C.D. Me. 1823).

[8] McCorpen v. Central Gulf S.S. Corp., 396 F.2d 547, 548 (5^th Cir. 1968).

[9] Loftin v. Kirby Inland Marine, L.P., 568 F.Supp.2d 754, 762-63 (E.D. Tex. 2007).

[10] Morales v. Garijak, Inc., 829 F.2d 1355, 1358-59 (5^th Cir. 1987).

[11] Pelotto v. L&N Towing Co., 604 F.2d 396, 404 (5^th Cir. 1979); Loftin, 568 F.Supp.2d at 762-63.

[12] Rashidi v. Am. President Lines, 96 F.3d 124, 128 (5^th Cir. 1996).

[13] Boudreaux, 280 F.3d at 468.

[14] See The Louisiana, 70 U.S. 164 (1866).

[15] See In re 4-K Marine, 2019 U.S. App. LEXIS 3095 at *4, citing to Bertram v. Freeport McMoRan, Inc., 35 F.3d 1008 (5^th Cir. 1994); see also Savoie LaForche Boat Rentals, Inc. 627 F.2d 722 (5^th Cir. Unit A 1980)(employer without fault) and Adams v. Texaco, 640 F.2d 618 (5^th Cir. 1981)(employer and third party both at fault).

[16] 2019 U.S. App. LEXIS 3095 at *5.

[17] 2019 U.S. App. LEXIS 3095 at *6-7.