Expansion of the Duty to Pay Maintenance and Cure?

The United States Court of Appeals for the Second Circuit (sitting in New York City), decided the case of Messier v. Bouchard Transportation, on July 20, 2012.  While only time will tell, this case appears to expand the universe of illnesses or injuries, in particular illnesses, contracted by the seaman  which will trigger the employer’s obligation to pay him maintenance and cure.

The obligation of a shipowner who employs seamen to care for them if they become injured or ill is well known.  In such an instance, the employer is required to pay the seaman an amount sufficient to provide for his food and lodging while under medical care, at least until he reaches maximum medical improvement.  The employer is also obligated to pay the ill or injured seaman’s medical costs until he is discharged and declared having reached maximum medical improvement by his treating physician.

Traditionally, in order to be eligible for maintenance and cure, the seaman must have become ill or injured while in the service of the vessel to which he is assigned.  In the case of an injury, to determine if it occurred while he was in the service of the vessel is usually not too difficult.  An investigation into the facts and circumstances will, in most cases, provide information sufficient to answer that inquiry.

However, in the case of an illness, trying to determine if the illness occurred while  the seaman was in the service of the vessel is not always so easy.   For instance, say a seaman suffers a heart attack while on watch.  The heart attack may have been the end result of years of cardiovascular disease that pre-existed the seaman’s employment aboard the vessel.  However, because the disease became “manifest” while he was serving on the vessel, the duty to provide maintenance will be triggered.

But what about diseases that are slow evolving and do not exhibit symptoms while the seaman was serving aboard the vessel?  Messier provides insight in how the courts may treat such a claim.  In Messier, the facts are as follows:  Messier, a career tugboat seaman, was hired by Bouchard in March, 2004.  On October 23, 2005, while in service, he fell climbing down a ladder and suffered a back injury.  He sought medical treatment and the back injury was found to be of little consequence.  However, during the exam, his doctor ordered routine blood tests which revealed a much more serious problem.  An elevated level of creatinine was found in his blood.  Over the next several days the level continued to increase and he was treated for renal failure.  Additional tests were performed and in late December, 2005, two months after his last service on the vessel, Messier was diagnosed with B-cell lymphoma.  He then brought suit for his injuries and made a claim for payment of maintenance and cure for his illness.  Both parties brought motions on the issue of whether Bouchard owed Messier maintenance and cure.  The District Court held that Messier was not entitled to maintenance and cure as a matter of law, because his lymphoma did not “manifest” itself, i.e., did not present any symptoms, while he was in the service of the ship.  Messier appealed.  The Court of Appeals reversed the District Court and found that Bouchard did in fact owe him maintenance and cure.  In doing so, it held that, “because the seaman’s illness indisputably occurred during his service, he is entitled to maintenance and cure regardless of when he began to show symptoms.”

The Court found that the only evidence offered by both parties was that Messier’s illness occurred during his service, thus he was entitled to maintenance and cure.  The Court found that it makes no difference and there is no exception for an asymptomatic disease – so long as the illness was present during the seaman’s service, he is entitled to maintenance and cure.  The Court labeled this the “occurrence rule.”

The Court found the situation analogous to a case from 1970 in which a seaman suffered minor injuries jumping overboard to escape a burning ship.  Weeks later he died from lung cancer.  All the medical experts agreed that he had a malignant cancer prior to the shipboard disaster.  However, because the seaman had the cancer while aboard the ship, the Court found that his estate was entitled to maintenance and cure, even though the cancer did not manifest itself aboard the ship.

The Court continued, and ruled that the District Court erred when it found that the illness must not only occur, but also “manifest,” i.e., show symptoms during the seaman’s service.  “All that matters (according to the Second Circuit) is when the illness occurs, not when it started to present symptoms.”  It should be noted that the Court also spent considerable time reminding us that seamen are “wards” of the Court, entitled to expansive protection by the Court.

This is a dangerous case, and places unexpected obligations on the shipowner/employer.  Under the reasoning of this case, the shipowner/employer is potentially liable for any chronic disease that a prospective employee brings with him.  If Messier had been diagnosed with lymphoma prior to his employment, disclosed his condition during his pre-employment physical, was hired, and the illness became symptomatic while in service, that is one thing.  However, what of the person who does not know he has lymphoma or cancer or mesothelioma or diabetes or some other chronic disease, goes to work as a seaman, leaves the company for reasons not related to his illness and is later diagnosed.  Under the Second Circuit’s reasoning, the shipowner/employer would be on the hook for maintenance and cure, because, after all, he had the disease while in the service of the vessel.

Even the judge who wrote the opinion recognized the danger of his decision.  He wrote:

“At bottom, the District Court’s discomfort with the occurrence rule is, perhaps, understandable.  After all, a rule imposing liability on an employer for an injury that was known neither to the employer nor the employee during the period of employment seems odd – at least outside the admiralty context.  But admiralty is different, and maintenance and cure is a unique remedy.  It is “broad.”  We are to be liberal in interpreting it for the benefit and protection of seamen.”

I have no doubt that trial lawyers will quickly embrace this decision, and claims for maintenance and cure, no matter how suspect, will increase.

Will Bland
As a Member at Mouledoux, Bland, Legrand & Brackett, Will Bland regularly represents the interests of vessel operators, both brown water and offshore, oilfield operators, and their insurers in matters involving personal injury, collisions, sinkings, products liability, toxic torts, and contractual disputes. His practice areas include maritime personal injury defense, maritime collision and property damage insurance coverage, contractual indemnity, longshore matters and general litigation. Will can be contacted at (504) 595-3000 or via e-mail at wbland@mblb.com.
Will Bland