Maritime Proctor Blog

We continue our discussion of one of the oldest remedies available to a personal injury plaintiff – that of maintenance and cure.

Last week, we began with an overview of maintenance and cure benefits, and analyzed a new Fifth Circuit decision concerning cross-claiming defendants and whether one had to partially or totally indemnify the other for payments made of maintenance and cure, even if the injury for which the payments were made was deemed unrelated to the accident giving rise to the litigation.  In the decision of In re 4-K Marine, L.L.C.,[1] the Fifth Circuit said such was not required because the employer could have refused to pay the seaman’s maintenance and cure benefits if it had a “reasonable factual or legal basis” to do so.[2]

Today we look at the defenses that are available to the maritime employer of a Jones Act seaman when the seaman makes a claim for maintenance and cure benefits under the General Maritime Law of the United States (“GML”).  While maintenance and cure is characterized as an obligation without fault,[3] there are defenses available to a seaman's employer. 

-1-        Allege a Lack of Seaman’s Status

The most logical and foundational defense is that the person claiming entitlement to the benefits is not a Jones Act seaman. 

A Jones Act seaman, as that term is understood in Admiralty, is a maritime worker who satisfies the two-part test from Chandris, Inc. v. Latsis: (1) did the worker’s duties at the time of the incident, contribute to the function of a vessel or accomplishment of its mission; and (2) was the worker’s connection, if any, to a vessel (or an identifiable fleet of vessels) substantial in terms of both duration and nature?[4] 

If a worker cannot meet this test, the worker is not a seaman and cannot, as a matter of law, claim entitlement to maintenance and cure benefits.[5]

-2-        Not in Service of Vessel

Another defense is to argue at the time the seaman’s incident occurred, the seaman was not in the service of the vessel.  This is commonly seen with seamen who commute to brown-water jobs, either in the towing industry in the Intercoastal Canal or seamen on drilling rigs/vessels working offshore.  The key to this defense, at least in the Fifth Circuit, is whether the seaman is answerable to the call of the vessel at the time of the incident.[6]

-3-        Willful Misconduct or Intoxication

If a seaman's willful misconduct causes his injuries, such also serves as a defense to maintenance and cure benefits.[7]  Many times, the defense is based on a claim the seaman was intoxicated while on shore leave, but there is a high standard for this defense. 

In 1951, the Supreme Court stated in Warren v. United States[8]a seaman shouldn’t lose maintenance and cure unless the seaman causes his injuries with “positively vicious conduct – such as gross negligence or willful disobedience of orders.”[9]  In that case, the seaman fell off a balcony at a bar after drinking wine.  Another salacious example of the high threshold for the willful misconduct defense is Koistinen v. American Export Lines, where a New York state court held an employer owed maintenance and cure to a seaman when a drunk seaman injured himself after jumping out of the window of a “lady of the night” after soliciting and receiving services but refusing to pay.[10]

One cannot know if a seaman is intoxicated at the time of the incident unless the company has a policy of a mandatory drug & alcohol test post-incident.

-4-        Lack of Substantiation

Obviously, the seaman must substantiate his entitlement to maintenance and cure benefits, which includes proving that the injuries claimed occurred in the service of the vessel.[11]  In essence, this is both a procedural argument and a medical causation argument. 

-5-        Abandonment of Treatment

It is long established that if a seaman abandons a course of medical care or rejects recommended medical aid, he forfeits his entitlement to maintenance and cure benefits.[12]  Additionally, a long-held principle under the General Maritime Law is a seaman forfeits his right to maintenance and cure by a willful rejection of recommended medical aid.[13]  Other, even older cases, consider abandonment of a seaman's employment position as grounds to deny maintenance and cure.[14] 

-6-        Curative v. Pallative

Maintenance and cure is only owed until the seaman reaches Maximum Medical Cure (“MMC”).  The Fifth Circuit describes this as meaning “when it appears probable that further treatment will result in no betterment of the seaman’s condition.”[15]  or when the seaman’s condition is deemed permanent.  Thus, any treatment merely palliative in nature that does not actually better the condition of the seaman toward reaching MMC is not covered under the maintenance and cure obligation.[16]

-7-        The McCorpen Defense

If a seaman intentionally conceals a pre-existing medical condition that is subsequently injured while in the service of the vessel, maintenance and cure may be denied.[17]  This is known as the McCorpen defense after the 1968 Fifth Circuit decision in McCorpen v. Central Gulf S.S. Corp.[18] McCorpen and its progeny will be the subject of a separate blog post in the near future.

In spite of the presence of these defenses in the GML, aside from the McCorpen defense, the level of efficacy is usually low.  This is because (a) MMC is a medical determination, (b) there are usually fact questions or differeing doctors’ opinions as to MMC, and (c) both the Supreme Court and Fifth Circuit resolve any “ambiguities or doubts” about a seaman’s medical status in favor of the seaman’s position.[19]

[1] ____ F.3d ____, 2019 U.S. App. LEXIS 3095, 2019 WL 362452, Case No. 18-30348, (5^th Cir. January 30, 2019).

[2] 2019 U.S. App. LEXIS 3095 at *6.

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

[4] 515 U.S. 347, 368 (1995).

[5] Hall v. Diamond M. Co., 732 F.2d 1246 (5^th Cir. 1984); Morales v. Garijak, 829 F.3d1355 (5tyh Cir. 1987).

[6] See Sellers v. Dixilyn Corp., 433 F.2d 466 (5^th Cir. 1970).

[7] Aguilar v. Standard Oil Co., 318 U.S. 724 (1943).

[8] 340 U.S. 523 (1951).

[9] 340 U.S. at 528.

[10] 83 N.Y.S. 2d 297 (City Court of New York, 1948).

[11] Miller v. Lykes Bros-Ripley S.S. Co., 98 F.2d 185 (5^th Cir. 1938); Pelotto v. L&N Towing Co., 604 F.2d 396, 404 (5^th Cir. 1979).

[12]Coulter v. Ingram Pipeline, Inc., 511 F.2d 735, 737 (5^th Cir. 1975); Leocadio v. Lykes Bros. Steamship Co., 282 F.Supp. 573, 575 (E.D. La. 1968); Murphy v. Am. Barge Line Co., 169 F.2d 61(3d Cir. 1948), cert. denied 335 U.S. 859 (1948).

[13] Coulter v. Ingram Pipeline, Inc., 511 F.2d 735, 737 (5^th Cir. 1975); Leocadio v. Lykes Bros. Steamship Co., 282 F.Supp. 573, 575 (E.D. La. 1968); Murphy v. Am. Barge Line Co., 169 F.2d 61 (3d Cir. 1948), cert. denied 335 U.S. 859 (1948).

[14] Martinez v. Matson S.S. Co., 97 F.2d 19, 20 (5^th Cir. 1938)(considering the argument that the seaman abandoned his employment, but determining that the facts did not support it).

[15] Barto v. Shore Construction, L.L.C., 801 F.3d 465, 476 (5^th Cir. 2015), citing to Pelotto v. L&N Towing Co., 604 F.2d 396, 400 (5^th Cir. 1979).

[16] Barto, 801 F.3d at 476; Alario v. Offshore Serv. Vessels, L.L.C., 477 Fed. Appx. 186, 188 (5^th Cir. 2012).

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

[18] 396 F.2d 547, 549 (5^th Cir. 1968).

[19] See Vaughan v. Atkinson, 369 U.S. 527, 532 (1962); Johnson v. Marlin Drilling Co., 893 F.2d 77, 79 (5th Cir. 1990).