Found: A commonly overlooked element of damages in seamen’s injury claims

It is beyond question that the value of board and lodging furnished on board ship to fishermen while engaged in the vessel’s fishing operations is considered a valuable part of their earnings and, to the extent of its value, reduces the cost of their living. It is therefore generally regarded as a material part of the compensation paid to them for their labor …

Jacobson v. United States, 44 F.Supp. 685, 686 (W.D. Wash. 1942).

Found is the amount of money that is required to support a recuperating seaman on land during the seaman’s disability. It is for those periods in which the seaman would have been aboard ship and received free room and board but for illness or injury. The amount of money that is appropriate to be paid as found is that required to purchase food and living accommodations on land equivalent to that which the seaman was accustomed to at sea. Alexander-vich v. Gallagher Brothers, 1962 A.M.C. 317 (2d Cir. 1961). The word “found,” as defined in the context of “provision for the maintenance of persons,” first appeared in the English language in 1377. It was not until 1793 that it was used as “furnished with stores, supplies and the like; of a ship equipped … ” Oxford English Dictionary (2d ed. 1989). Found used as a description of damages did not appear in case law until after passage of the Jones Act in 1920. 46 U.S.C. § 10104.

Found seems to have been overlooked in the vast majority of maritime cases. Its lack of use was bemoaned almost 40 years ago. “Has Found Been Lost? An Analysis of a Seldom Utilized Concept in the Maritime Law”, Normann, 33 LoyoLa L. Rev. 875 (1984). Found does not appear in Black’s Law Dictionary, going as far back as the second edition in 1910. There is no mention of found in the index to Gilmore & Black, The Law of Admiralty (2d ed. 1975). Currently, there is no mention of found in the index for United States Code Annotated Title 46, nor in the indexes of Force and Norris, The Law of Seamen (2020 supp. to 5th ed.) and Schoenbaum, Admiralty and Maritime Law (2020 supp. to 6th ed.). The only exception is Charles Davis (R.I.P.), Maritime Law Deskbook (2016 ed.). Mr. Davis discusses found at page 209. Shephardizing caselaw shows found mentioned in only a couple of cases in the past 30 years. Moore v. The Sally J., 27 F.Supp.2d 1255 (W.D. Wash. 1998); Peake v. Chevron Shipping Co., 2004 A.M.C. 2778 (N.D. Cal. 2004).

Maintenance is a no-fault living stipend paid during a seaman’s medical treatment. Found – available only upon a finding of liability – is compensation for the food and lodging from the vessel that the seaman would have received had he or she kept working. Found substitutes for maintenance after maintenance stops at the point of maximum cure. Davis, supra at 209. A seaman cannot receive both at the same time (except in certain situations, see infra), because both provide for the same needs – food and lodging – and the seaman cannot double-dip.

A strange twist in the law allows some seamen, who do not sleep aboard their vessel, to receive maintenance but not found. Those seamen are not entitled to be reimbursed the expense of their lodging (but they may be entitled to the value of meals received aboard) after they achieve maximum cure and their maintenance is cut off. Examples include ferry workers and workers aboard harbor craft who go home at night. Why seamen who sleep ashore are entitled to receive maintenance is beyond the scope of this article. But see, Crooks v. United States, 459 F.2d 631 (9th Cir. 1972).

The amount of found is determined by the finder of fact at trial. During a Jones Act trial, then-federal Judge Carolyn Dimmick instructed the jury on found simply by adding a paragraph to what was then the Ninth Circuit Model Jury Instruction 14.02F, “Damages”. (Now Instructions 7.8 and 5.1.) (Described in Letters to the Editor, Trial News, September 1991).

“(T)he prevailing view is that (the seaman) may not receive maintenance and found for the same period …” “Has Found Been Lost? …”, supra at 877. That statement is not entirely accurate. Some deep-sea unions include unrealistically low rates of maintenance in their collective bargaining agreements. The Seafarers International Union, for example, currently sets maintenance at $16/day. Courts, including the Western District of Washington, enforce those rates. See Gardiner v. Sea-land, 786 F.2d 963 (9th Cir. 1986), cert. denied, 107 S.Ct. 331 ($8/day). The only jurisdiction in the country that will not enforce unreasonably low rates of maintenance is the State of Washington. Lundborg v. Keystone, 138 Wn.2d 658 (1999). (This created the odd situation where federal courts in Washington can reach a different result on rates of maintenance than state superior courts, sometimes located only a few blocks from each other!)

In cases of illness or injury suffered by union seamen, a seaman may be entitled to found and maintenance at the same time if the rate of maintenance is not enough to pay for the seaman’s basic needs.

Conversely, a situation may arise where an injured seaman is entitled to neither found nor maintenance. Consider a seaman who is permanently disabled from going back to sea but manages to get a job on land that pays more than he was earning at sea (including the value of shipboard food and lodging). The seaman’s maintenance will stop when reaching maximum cure. After that there is no right to found because the seaman’s earnings exceed the wages and the value of food and lodging received at sea. In other words, there is total mitigation of what the seaman lost from no longer going to sea and thus no right to found.

Found is a valuable element of damages that should not be overlooked. I include a demand for found in the Prayer for Relief at the end of my standard seaman’s Complaint. I suggest readers of Trial News do the same.

The value of found extends beyond shipboard illness and injury and can be invoked any time a seaman is prevented from working as the result of tortious behavior. If a seaman is in a motor vehicle accident, for example, the seaman can recover found damages from an at-fault driver even though there is no employment relationship. Think about it.