MAINTENANCE AND CURE BENEFITS, REVISITED: WHAT YOU DON’T KNOW CAN HURT YOU.
MAINTENANCE AND CURE BENEFITS, REVISITED
WHAT YOU DON’T KNOW CAN HURT YOU.
Founded in historic rules protecting the ancient mariners our present maritime law provides seamen a safety net when they become ill or injured “in service of the vessel.” In short, all maritime contractors, i.e. employers, are obligated to protect their workers if they become ill during while on “company time”.
In describing the obligation of a maritime employer to its workers, in 1823 U.S. Supreme Court Justice Joseph Story, then sitting as circuit judge in the case of Harden v. Gordon, penned one of the most far reaching opinions in Admiralty Law in writing:
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. . .[Seamen] are emphatically the wards of the admiralty; and though not technically incapable of entering into a valid contract, they are treated in the same manner, as courts of equity are accustomed to treat young heirs, dealing with their expectancies, wards with their guardians…They are considered as placed under the dominion and influence of men, who have naturally acquired an advantage over them; and as they have little of the foresight and caution belonging to persons trained in other pursuits of life, the most rigid scrutiny is instituted into the terms of every contract in which they engage. If there is any undue inequality in the terms, any disproportion in the bargain, any sacrifice of rights on one side which are not compensated by extraordinary benefits on the other, the judicial interpretation of the transaction, is that the bargain is unjust and unreasonable, that advantage has been taken of the situation of the weaker
party, and that pro tanto the bargain ought to be set aside as inequitable.
While present day divers are much more sophisticated and educated than the professional seamen of the 1800’s, the maritime employer of the 21st century is still obligated to provide the injured mariner’s unearned wages for the entire voyage of the vessel, as well as living expenses during the mariner’s period of convalescence (maintenance) and all medical expenses (cure) until the mariner reaches a point of maximum medical improvement. This obligation exists even when the mariner returns to “light duty” or “alternative” employment.
Recognizing the obvious and customary imbalance in bargaining positions between an unrepresented seaman and employer, Admiralty Courts historically interpret the mariner’s legal rights very broadly; and, where doubts at to entitlement, and necessity of medical treatment exists Admiralty Courts will resolve the dispute in favor of the injured mariner.
Summarizing the general rule of the Law of the Sea, an ill or injured seaman must simply establish the following in order to secure maintenance and cure benefits and unearned wages:
(1) engagement as a seaman;
(2) an illness or injury which occurred, was aggravated or manifested
itself while in the ship's service;
(3) wages to which he/she is entitled had he/she served through the end of the
(4) the expenditures (or liability) he/she incurred for medical treatment
and living expenses.
Being on Call - Answerable to the Call of Duty
Anytime a diver is “in the service of the vessel” he/she is entitled to maintenance and cure benefits should he/she become injured or ill. It’s that simple. But, what about the diver who is “on call - standing by” at home, a hotel or company dormitory waiting for orders? There is no difference. Even if not “on the clock” that diver is legally entitled to the same benefits as if he/she was laboring offshore on a vessel. This status of “being on call” is also generally known as “answerable to the call of duty”.
The key to establishing an “on call” status hinges on whether the diver is obligated or expected to return to the vessel if the diver is “called for service”. If there is such an expectation to report to work if so called the diver is protected. And, therefore, if the diver becomes ill or injured his/her employer is obligated to provide medical care (cure), a daily per diem (maintenance) and the unearned wages. Additionally, in most cases, the law further protects the diver during transit from home, hotel or dormitory to the vessel. And finally, the law protects a discharged mariner from the time of discharge to a “reasonable time” needed to “wind up his employment” with the employer, such as coming to the vessel to pick up his/her gear, collect his/her pay check or any other activity needed to finalize the employer/employee relationship.
If a mariner sustains any illness or injury, or if any injury of illness is “aggravated or manifested” during the mariner’s service to the vessel he/she is entitled to maintenance and cure benefits. It is of no matter that the illness or injury is work or nonwork-related. For instance, if a diver sustains a heart attack, contracts pneumonia, exhibits symptoms of emphysema, or manifests the first signs of cancer during his service to the vessel or answerable to the call of duty, his/her employer is obligated. It is of no consequence that there is no causal link between the diver’s services to the vessel and the injury or illness. As long as the illness or injury was manifested or aggravated during the diver’s service to the vessel he/she is entitled to benefits.
As many professional mariners are unfortunately learning firsthand, the spread of of staphylococcus aureus (staph) in the Gulf of Mexico has reached near epidemic proportions. This infection presents major long term health problems for the infected seaman if immediate medical intervention does not occur. Most maritime employers have taken the advice of the medical community in instituting education programs and preventative measures to slow the spread of infection in the maritime workplace. But, we’re talking about a nasty little bug. If a seaman contracts staph he/she is entitled to maintenance and cure benefits.
Defenses to Maintenance and Cure Claima
There are only two recognized defenses to a claim for maintenance and cure benefits. An employer may deny benefits for injuries/illness caused by willful misconduct of the mariner, including gross inebriation, alcoholism, fighting, venereal disease and HIV. Another defense arises when the diver willfully conceals an illness in an application for employment or a diver’s annual physical.
In an attempt to avoid the payment of benefits, all too often employers encourage, or even force, seamen to utilize private health insurance to cover costs that fall within the employer’s cure obligations . Often a diver will agree assuming that it does not matter who pays the medical bills as long as they are paid. However, when that diver is no longer able to work, afford or obtain private insurance, it becomes a very real problem for the diver. You are entitled to maintenance and cure. It is part of the contract you entered with the company and is a benefit that partially offsets the fact that seamen are not entitled to workers compensation.
The Bottom Line
I hope this article clears up some lingering questions prompted by my first article on this subject. Knowing ones legal rights serves a many purposes. First of all, ignorance of ones rights invites abuse by those seeking to take advantage of the ignorant. Second, if a diver knows his/her rights a call to an attorney becomes unnecessary. Our firm tries to provide such advice pro bono, most don’t. Hence knowing ones rights is cost effective. And finally, the maritime law was established at great cost by those who came before you. Take full advantage of this sacrifice. You are worth it.
Bobby J. Delise