The Effect of Maintenance Payments on: 1) Unemployment Compensation; and, 2) Child Support Obligations

By John Merriam

Much confusion surrounds the situation of injured seamen entitled to or receiving maintenance when they apply for unemployment compensation, or when they owe child support. This article attempts to explain their legal rights and obligations.

Collective wisdom on the waterfront is to the effect that one cannot receive maintenance and unemployment at the same time. Indeed, this practitioner is aware of numerous instances where claims managers and insurance adjusters urge injured seamen to apply for unemployment benefits and then, if unemployment compensation is received, cut off the seamen’s maintenance. The rationale for cutting off maintenance benefits is twofold: First, it is assumed that unemployment compensation eliminates one’s eligibility for maintenance. Second is the assumption that if a seaman holds himself out as able to work, in order to qualify for unemployment compensation, he or she is no longer ‘disabled’ and therefore no longer entitled to maintenance. Both these assumptions are wrong.

By definition, unemployment compensation—in Washington state, at least—is to make up for a loss of wages. “Wages” is defined as not including: “The amount of any payment made . . . on account of . . . sickness or accident disability . . .” R.C.W. 50.04.330. In contrast, “Maintenance means . . . the cost of (the seaman’s) board and lodging while ashore . . .” Force and Norris, The Law of Seamen, sec.26:26 (5th ed. 2003). Maintenance is not income; it is a substitute for the free room and board the seaman would have received aboard the vessel, but for an illness or injury.

“An unemployed individual shall be eligible to receive . . . (unemployment) benefits . . . if . . . (c) He or she is able to work, and is available to work in any trade, occupation, profession, or business for which he or she is reasonably fitted. . . .” R.C.W. 50.20.010 (emphasis added). Even if unable to go back to work aboard ship, the disabled seaman may still be able to work a light-duty job on land. If looking for such a job, there is no reason why the seaman doesn’t qualify for receipt of both maintenance and unemployment compensation. Although there is no authority directly on point as regards Washington unemployment benefits, there are persuasive cases arising in California. See, Gypsum Carriers v. Handelsman, 307 F.2d 525 (9th Cir. 1962); The Law of Seamen, supra, sec. 26:26 at n. 1.

Practice Tip: Your client is entitled to receive maintenance as long as he or she is receiving curative treatment. Have the client get clearance from the treating physician to go back to work at some job—any job, even at McDonald’s—and then apply for unemployment compensation while trying to get those kind of jobs.

Many of our clients fail to live up to expectations that they pay their child support obligations. A disproportionate number of those clients are seamen. Child support enforcement agencies from various states typically serve liens on shipping and fishing companies. Those companies then withhold 50% or more of any payments due the seaman, including maintenance as well as wages.

Maintenance is often paid at the rate of $20/day. Deducting half for the child support lien leaves the seaman $10/day to pay for food, rent and utilities. Regardless of one’s social views or politics, it makes no sense to deprive the deadbeat spouse of sustenance. Child support deductions from wages are fine, but deductions from maintenance can ‘kill the goose that laid the golden egg’. To give an extreme example: A seaman would not be able to pay any child support if, due to insufficient maintenance, he died of malnutrition or exposure. Deducting child support from maintenance makes no more sense than does deducting child support from a grant of food stamps.

The author is not aware of any published authority on point in regard to the propriety of deducting child support from maintenance. In a recent case involving a seaman owing child support in Texas, a local federal judge upheld a child support lien, ruling that maintenance ($20/day) was “income” as a matter of Texas state law. That decision is now on appeal, awaiting oral argument. Aguilera v. Fishing Company of Alaska, Ninth Circuit Docket No. 07-35148. Appellant argues that the nature of maintenance should be determined as a matter of federal law, not state law. “Maintenance and cure—a right given by the (federal) general maritime law . . . “ The Law of Seamen, supra at sec. 26:1.

Practice Tip: Try to convince the claim manager or insurance adjuster that there is no legal authority for deductions of child support from maintenance and, if the seaman prevails in the Aguilera case, the employer could end up paying double—once to child support enforcement, and again to the seaman to make up for the maintenance deducted.

Eagle John Merriam is a former merchant seaman in solo practice at Fishermen’s Terminal in Seattle, where he restricts his practice to the representation of maritime claimants for wages and injury.