Do Seamen and Fishermen Injured in the Service of the Ship Have a Right to Medical Care for Life?
By John Merriam
All maritime practitioners know that a seaman's right to maintenance and cure only lasts until "maximum cure" -- as good as the seaman is going to get following the injury or illness manifested while in the employ of the vessel, right? For maintenance, probably yes. For cure, maybe not.
Maintenance is the per diem living expense given a seaman during the period of recuperation. Cure is payment for medical care. Jones v. Reagan, 748 F.2d 1331, 1334, 1985 A.M. C. 944 (9th Cir. 1984), cert. denied 472 U. S. 1029 (1985).
Although maintenance and cure are usually spoken of in the same breath, they are in fact separate entitlements. Pelotto v. L. & N. Towing Co., 604 F. 2 396 (5th Cir. 1979). This article takes the position that the duration of the shipowners' obligation to provide Cure, as opposed to maintenance, has never been decided. The premise of this article is that the cure aspect of maintenance and cure recently reverted back to its status between 1787 and 1798. Since no reported decisions are available from that period on how long a seaman's entitlement to cure lasts, we are left with a situation for which there is no legal precedent. Anything said herein about the rights of "seamen" applies with equal force to fishermen and fish processors. Norris, The Law of Seamen, sec. 26:44 (4th ed. 1985).
The yardstick of "maximum cure", for stating the end point of the shipowner's obligation to an injured seaman, was set forth in the case of Farrell v. United States, 336 U. S. 511, 69 S. Ct. 707 (1949). Farrell involved a seaman who was permanently disabled when he walked into a pit while overstaying his shore leave. In a 5-4 decision, the Supreme Court affirmed the Second Circuit in cutting off his daily maintenance at the point of maximum cure. However, even though the case generally spoke of "maintenance and cure' together, the only benefit truly at issue was that of Farrell's entitlement to his daily living stipend, not to his medical bills. At the time, Farrell was in fact being treated without cost to himself at various government hospitals. Id. , 69 S. Ct. at 708. The court said that there was 'no authority (that the plaintiff) is entitled to maintenance for life". Id. (emphasis added) Farrell, along with other seamen, had a lifetime entitlement to free medical care at the former Marine Hospitals, later taken over by the U. S. Public Health Service. 42 U. S.C. sec. 249 (a) (before 1981 amendment, infra). Given free medical care, shipowners in Farrell and other cases had no standing -- no 'stake in the controversy -- to argue about the duration of cure which was provided by the Marine Hospitals free of charge. The only real issue in Farrell was the extent of the shipowner's obligation to pay maintenance; anything discussing cure was dictum.
The four dissenters in Farrell, led by Justice William O. Douglas, advocated maintenance for life if the ill or injured Seaman required ongoing cure for a permanent disability. Id. at 713. The dissent relied upon a case by one of the authors of the maintenance and cure doctrine as recognized in the United States: "Justice Story was of the view (in Reed v. Canfield, Fed. Cas. No. 11, 641 ( 1832)) that the ship remained liable until the cure was completed." Id. at 712.
The Farrell case was a close call. In addition to the slender majority, the court seemed swayed by the circumstances surrounding Farrell's injury. This, even though it was not contested that Farrell was 'in the service of ship' so as to entitle him to some period of maintenance and cure. The Farrell court divided into three categories events which would entitle a seaman to maintenance and cure : 1) an illness or disease manifesting itself in the service of the ship; 2) an injury received in the service of the ship; and, 3) injuries received while defending the ship from "rovers' or pirates. While the majority in Farrell said that the entitlement to maintenance was not affected by the nature of a mariner's activities at the time of injury, the court went on to point out that the facts of Farrell's injuries did not warrant expanding seamen's rights to maintenance and cure, since Farrell's injury was essentially his own fault. Id. at 709-710. It is interesting to note that the third category of injury, that received while defending the ship and cargo, has never been decided; and, in an appropriate case, could yield an entitlement to life-time maintenance as well as life-time cure.
The Farrell majority dismissed pirates as a thing of the past. Id. at 709. Even in this late age, piracy is still occasionally reported in the Strait of Malacca near Singapore and in the vicinity of Buenaventura on the Pacific coast of Colombia. However, exploration of the right to maintenance, as opposed to cure, past the point of maximum cure is beyond the scope of this article.
Congress has never legislated on the issue of maintenance and cure. The doctrine has evolved through the judiciary from the ancient sea codes of the middle ages.
The courts have the ability to expound upon maintenance and cure through Art. III, section 2 of the U.S. Constitution: "The judicial Power shall extend... to all Cases of admiralty and maritime Jurisdiction; ..." The U.S. Constitution was adopted in 1787. In 1798 the Marine Hospitals were established (later absorbed by the U.S. Public Health Service). 1 Stat. 605 (July 16, 1798). There was no thorough discussion of the parameters of maintenance and cure for the then-fledgling United States until Justice Story analyzed the issue some 25 years later. Harden v. Gordon, 1 1 F. Cas - 480, No. 6, 047 (C. C. Maine 1823) . While the maritime law, including the doctrine of maintenance and cure, is said to be uniform among nations, there are some distinctions. See, e.g., Justice Douglas' discussion of the Shipowners' Liability Convention of 1936, at Art. 12, in his dissent in Farrell. 69 S. Ct. at 713. In Harden v. Gordon Justice Story took it upon himself to formulate for the first time the nature of maintenance and cure rights that would be recognized by the courts of the United States. To do so he looked at the maritime law of other nations and at the ancient sea codes. One of the main considerations to which the ancient sea codes address themselves was the medical care of seamen injured or taken ill during a voyage. Justice Story observed:
In the adminicular researches (not inconsiderable) to which my duty has led me, I have not been able to detect a single instance in which the maritime laws of any foreign country throw upon the seaman disabled or taken sick in the service of the ship, without their own fault, the expenses of their Cure.
Harden v. Gordon, 1 1 F. Cas at 482 . (The text of some of the ancient sea codes are excerpted at Norris, The Law of Seamen Sec. 26:3.)
The majority in Farrell also relied on the medieval sea codes, such as the Laws of Oleron and the Laws of the Hanse Towns, in examining the parameters of maintenance and cure. 69 S. Ct. at 708. However, as mentioned, the Farrell court was primarily concerned only with maintenance, not cure. By the time Justice Story first shaped the doctrine of maintenance and cure for the United States, a lifetime entitlement to cure at the Marine Hospitals had already been established.
With the establishment of the Marine Hospitals in 1798, seamen disabled in the service of the ship became owed life-long medical care. See, Morrison, Maintenance and Cure, 6 Miami L. Q. at 186 (1952). The Marine Hospital system grew up with the evolution of the maintenance and cure doctrine as recognized in the United States. Free medical treatment for life had become grafted onto the remedy in cases of permanent disability. See Norris, The Law of Seamen sec. 26:58.
Seamen originally paid for the Marine Hospitals themselves with a hospital tax (head tax on seamen coming into port) which was later changed to a tonnage tax. Beginning in 1907, the Marine Hospitals were supported out of general treasury funds. A history of the Marine Hospitals and the tonnage tax is set forth at Norris, id., at sec. 26:54 . In fashioning remedies for injured seamen, courts took cognizance of the free care for life to seamen at Marine Hospitals. Calmar SS Corp. v. Taylor, 303 U.S. 525, 531 (1938).
Since 1798, the federal government has provided free medical care for such seamen in hospitals and clinics operated in recent times by the Public Health Service. Admiralty courts have routinely taken judicial notice of the free medical care and have denied awards against the shipowners for medical services available at government expense.
Jones v. Reagan, supra, 748 F.2d at 1334.
Free medical care to seamen in USPHS hospitals came to an end between 1981 and 1982. 42 U.S.C. sec. 249 (a), as amended 8/13/81, P.L. 97-35, Title IX, Subtitle J, sec. 986 (a), 95 Stat. 603. When those former Marine Hospitals closed their doors to seamen the maritime common law reverted back to its status prior to 1798. What was the status of the law between 1787 and 1798? It is asserted that the courts fashioning the maintenance and cure doctrine in the United States became so solicitous of the welfare of seamen that those permanently disabled in the service of the ship retain the life-long rights to medical care that they enjoyed in this country for almost 200 years.
The theory that seamen permanently disabled in the service of the ship are entitled to life-time medical care from the shipowner received implicit support from the case of Jones v. Reagan, supra, 748 F.2d 1336 (9th Cir. 1984). That case involved a quixotic charge against Congress and the then-new administration of Ronald Reagan for closing down the U.S. Public Health Service (former Marine) Hospitals in 1981-82. The plaintiffs were seamen who relied on the USPHS Hospitals for ongoing medical attention. The plaintiffs were certified as representatives of a class of approximately 5,000 merchant seamen nationwide, all of whom had been declared permanently not fit for duty (PNFFD). Judge Voorhees of the Western District of Washington granted summary judgment to the government on the seamen's claims. On appeal, the class action likewise failed to force the reopening of the former Marine Hospitals, but some interesting language emanated from the case in the Ninth Circuit's decision.
The appellate court essentially told the class of disabled seamen to go after the shipowners for their medical care in the future. Jones v. Reagan, supra, 748 F.2d at 1336. The court observed that the plaintiffs were challenging the closure of their hospitals because previous awards for future medical care assumed that the USPHS Hospitals would always be there to provide that care without cost to either the seamen or the shipowners. The court magnanimously announced that laches did not prevent further action against shipowners by the disabled seamen. Id. at 1334-35. The result in Jones v. Reagan was small consolation to the class of plaintiffs since some of them dated their disabilities as far back as World War II, and virtually all of the steamship companies involved were long out of business.
The ruling in Jones v. Reagan is significant because the entire class of plaintiffs had been declared permanently not fit for duty; and it would seem axiomatic that most if not all of them had achieved maximum cure before the case even commenced. Some members of the class were disabled on government operated ships, putting the United States in the role of shipowner. Id. at 1339-40. The Ninth Circuit, as well as the federal district court below, missed the opportunity to deny further medical benefits based upon maximum cure. The government attorney never challenged the assertion by the plaintiff's class of a life-time right to cure, although the supposition of such a right was undoubtedly the Achilles' heel of the cause of action. In discussing the rights of the PNFFD seamen against shipowners, there was no mention of the bar to relief that could be posed by maximum cure. Id. at 1335. At page 1340 of the decision may be found tacit agreement with the plaintiff's argument that the obligations assumed by the Marine Hospitals reverted back to the shipowners after those hospitals were closed: "(T)he seamen still have available the allowances for cure upon which they allegedly relied."
This article does not suggest that Farrell v. United States, supra, would be decided any differently today. Even though a 5-4 decision, Farrell is still the law. But the effect of Farrell should be seen as being limited to maintenance. Any language limiting cure was unnecessary because Farrell had a life-time entitlement to cure with or without the ruling in his case. It is suggested that the Supreme Court would rule differently if squarely presented with the question of the duration of a seaman's entitlement to cure alone.
"If men are to go down to the sea in ships and face the perils of the ocean, those who employ them must be solicitous of their welfare." Douglas dissent in Farrell, 69 S. Ct. at 713.
No one knows what the parameters of cure were between 1787 and 1798. The purpose of this article is to suggest that it is too late to back-pedal on the rights of seamen to medical care. Although seamen are not entitled to workers' compensation, they enjoyed life time medical benefits through the Marine Hospitals almost since the founding of this nation. When the benefits provided by the Marine Hospitals were not sufficient to provide sufficiently for the seaman's entitlement to cure, the obligation devolved back to the shipowner. See, Kratzer v. Capital Marine Supply, Inc., 645 F.2d 477 (5th Cir. 1980). With the closure of the Public Health Service hospitals to seamen, it is the shipowner that is responsible to provide life-time medical benefits to those permanently disabled in the service of the ship.
John Merriam is a former merchant seaman, now a partner at Geisness, Merriam & Weigand, in Seattle, Washington, specializing in the representation of merchant seamen and fishermen.