Maintenance and Cure
Crewmembers are entitled to a per diem living allowance (a/k/a “maintenance”), medical care and costs associated therewith (a/k/a “cure”) and substitute wages (a/k/a “sick wages”) any time a crew member suffers an injury, accident or illness while “subject to the call of the vessel.” Having previously represented cruise ship companies, ship & vessel operators, and yacht owners for 19 years, the board certified maritime attorneys at the law firm of Brais Law Firm are in a unique position to protect crew members whose marine employer is not paying maintenance and cure benefits following a shipboard injury, accident or illness. The lawyers at the law firm of Brais Law Firm with offices in Miami, Florida, Boston, Massachusetts and Houston, Texas are here to help crew members and seaman who, after having suffered an injury, accident or illness and are not receiving their maintenance and cure benefits.
The duty of ship owners to provide maintenance and cure benefits for the crew members and seamen working for them in time of injury or illness is hundreds of years old. Maintenance and cure is a remedy dependent upon Jones Act seaman status. “Maintenance” is the daily allowance intended to provide ill or injured crew member and seamen lodging and food while convalescing. “Cure” is medical expenses necessary to treat ill or injured seamen and transportation to and from doctors’ offices. Sick wages is simply the amount of wages a seaman would receive if s/he was well enough to continue working for the remainder of the voyage or contract period.
The obligation to pay maintenance, cure, and sick wages arise when a seaman becomes ill or is injured regardless of any negligence or fault on the part of the marine employer or ship owner/operator. The illness need not arise out of the seaman’s occupation and, thus, can arise out of a medical condition such as a heart problem, a prior illness that resurfaces during a seaman’s employment or, in certain circumstances, an injury suffered on shore.
Typically, the employment contract or collective bargaining agreement sets the maintenance rate (usually between $10 to $25 a day). If the employment contract or collective bargaining agreement is silent as to the maintenance rate, you are entitled to the actual expenses of obtaining lodging and food ashore so far as they are reasonable for the area.Can my Employment Contract or Collective Bargaining Agreement Limit the Amount of Maintenance I’m Entitled to Receive?
Yes. As long as the maintenance rate set forth in the employment contract or collective bargaining agreement is “reasonable”, courts will allow a per diem living allowance at a rate that may, in fact, be less than your actual daily expenses while ashore.Am I Entitled to Receive Maintenance if I do not Live on the Ship?
Yes. Seamen who work on vessels, but do not live aboard are entitled to maintenance. Typically, seamen who work aboard ferryboats, tugs, barges, crew ships, charter fishing boats, whale watching vessels and dive boats fall within this category.How Long am I Entitled to Receive Maintenance?
You are entitled to maintenance until such time as your doctor finds you fit for duty (able to return to work) or at maximum medical cure/improvement (a point at which your medical condition has plateaued). The cure obligation, however, may well continue after you return to work assuming curative medical treatment will improve your condition.Do I Have a Claim if the Doctor my Employer Provided Worsens my Condition?
Yes. Your employer is strictly liable for any substandard care provided by any doctor tendered by your employer. This includes shipboard or shoreside referral doctors. In order to prove liability under a maintenance and cure or unseaworthiness claim, you need not establish your employer knew or should have known the tendered doctor had a history of providing substandard care. You need only prove the tendered doctor provided substandard care.If I Chose my own Doctor Over a “Company Doctor”, who Pays the Difference?
You do. You are entitled to select a doctor of your choosing. However, the ship owner/operator is only obligated pay the amount it would have been obliged to pay a competent doctor selected from its network of healthcare providers. In other words, if you select a doctor who charges $10,000 for a procedure and the shipowner has an agreement with a different doctor who is competent but charges $7,000 for the same procedure, the shipowner is only obligated to pay $7,000 towards your procedure and you will owe the difference of $3,000 directly to your chosen physician.What are Sick Wages? How Long am I Entitled to Receive Sick Wages?
A seaman who is injured or becomes sick during his service is entitled to recover the wages he or she would have earned had he or she been capable of completing the contractual terms of employment. Such sick wages, unless otherwise contractually limited in an employment contract, are due until the end of a seaman’s employment period or until a diagnosis of “fit for duty,” whichever is first. Sick wages must include the seaman’s salary as well as reasonably expected overtime, tips and bonuses.Can my Sick Wages be Reduced by my Maintenance Payments?
No. Your sick wages may not be reduced by your maintenance payments.Can my Employment Contract or Collective Bargaining Agreement Limit the Amount of Sick Wages I’m Entitled to Receive?
Yes. Courts allow the parties to contract for the amount and duration of sick wages and enforce such provisions typically found in seamen employment contracts and collective bargaining agreements.Can my Employment Contract or Collective Bargaining Agreement Limit the Obligation to Provide me With Medical Treatment?
No. Your employment contract or collective bargaining agreement cannot reduce the amount or duration of cure that your treating doctors recommend.What is the Difference Between Fit for Duty and Maximum Medical Cure/Improvement?
Being fit for duty means your doctor has determined that you are physically well enough to carry out your assigned shipboard duties. Being at maximum medical cure/improvement means that your medical condition has plateaued, a point at which additional medical care will not improve your condition. Fit for duty and maximum medical cure/improvement are not interchangeable. In fact, often times a crewmember may be found to be fit for duty but not at maximum medical cure/improvement and vice-versa.Does my Employer owe an Obligation to Reduce Pain Through Medical Treatment if my Condition has Otherwise Plateaued?
Generally, No. If your condition has plateaued meaning, no additional medical care will improve your condition, Courts will generally consider you to have reached Maximum Medical Cure/Improvement. After having reached Maximum Medical Cure/Improvement, additional medical care designed solely to relieve pain will most often be considered palliative by a Court and outside an employer’s obligation to you.What Defenses Exist to Claims for Maintenance, Cure and Sick wages?
- Willful Misbehavior - While willful misbehavior of a seaman constitutes a defense to maintenance, cure and sick wages, a ship owner/operator is still obligated to provide emergency medical treatment.
- Negligence / Gross Negligence – Carelessness on the part of a seaman contributing to injuries does not constitute a defense to maintenance, cure or a sick wage claim. Even if a seaman’s carelessness is the sole cause of the injuries or the carelessness rose to the level of “horseplay”, Courts have uniformly held this conduct does not constitute a defense.
- Willful Disobedience Of Lawful Order – Has been found to constitute a defense.
- Willful Misconduct – Has been found to constitute a defense. Examples of such conduct include injuries relating to employing the services of a prostitute, illegal drug use, and self- inflicted injuries.
- Willful Concealment Of Pre-Existing Condition – This defense frequently is referred to as the “McCorpen rule”. To establish the defense of “willful concealment”, an employer must show that:
- Claimant intentionally misrepresented or concealed medical facts concerning a prior injury or condition;
- The non-disclosed facts were material to the employer’s decision to hire the Claimant; and
- A connection exists between the withheld information and the injury complained of in the lawsuit.
- Failure To Follow Doctor’s Orders – Recalcitrant behavior or the refusal to follow doctor’s recommendations can under certain circumstances justify a ship owner’s suspension to maintenance and cure benefits.
The attorneys at the law firm of Brais Law Firm have the experience to protect your rights, the compassion to serve your needs, and the skill to obtain the compensation you deserve. To reach our lawyers you may click email the firm, call 800-499-0551 from within the U.S., Skype BraisLaw worldwide or click Contact Us to select and complete a form for a free evaluation of your case.
- Ship's Medical Negligence: Respondeat Superior or Strict Liability; Presented by Keith S. Brais, Esq., at the International Council of Cruise Lines 2006 Legal & Insurance Seminar, in Washington, D.C.