Articles Posted in Maintenance and Cure

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 NortherJaeger-300x199It’s that time of year again.  The holidays are over and you’re going back to work on a factory trawler up in Alaska for “A-Season.”  Whether you’re a returning crew member or a greenhorn, it’s important that you have a clear understanding of your legal rights before going up to Alaska on a factory trawler.  Failure to protect or know your rights before you leave can seriously impact your ability to get fair compensation if you are injured.  Here are the top 10 things to know about your legal rights before going back to work:

  1. Report Your Injury. If you get injured on a factory trawler, you need to report the injury as soon as possible in writing.  Some leads or supervisors will try to delay or discourage you from filling out an accident report in order to limit the number of claims filed against the company.  You should insist on filling out an accident report immediately.  Remind your supervisor that company policy requires you to fill out an accident report following an injury.
  1. Fill Out An Accident Report. Fill out an accident/incident report even if you believe the injury will resolve quickly.  Some injuries that you initially believe will resolve quickly can turn into larger issues that may lead to surgery.  You are not a doctor and don’t know if your injury will become more serious than you believe at first.  If you fail to fill out an accident/incident report in a timely manner, the company may try to deny your claim because you did not report it.
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Scene-Photos-003-300x199Maintenance is a daily stipend intended to cover the room-and-board expenses of a maritime worker injured in the service of a vessel, including seafood processing and deckhands on factory trawlers owned by American Seafoods Company.  An injured worker is entitled to maintenance payments until the worker reaches maximum medical improvement from the injury. Based on contracts it drafted, American Seafoods has callously taken the position that injured workers are entitled to only $30.00 per day for maintenance payments while they recover from injuries sustained on its vessel, regardless of whether their actual room-and-board expenses exceed $30.00 per day.  Other seafood processing companies have allowed for higher living maintenance rates based on an employee’s actual room-and-board expenses.  American Seafoods’ position against its own workers has now been rejected in cases brought by our clients in both state and federal courts in Washington.

On November 28, 2016, King County Superior Court Judge Sue Parisien ordered American Seafoods to pay maintenance of $78.43 per day to an injured seafood processor represented by Kraft Davies PLLC while he recovered from partial knee replacement surgery due to an injury at work.  In ruling against American Seafoods, Judge Parisien ruled:  “American Seafoods has not cited any valid basis in fact or law allowing it to limit plaintiff’s maintenance rate to $30 per day, when plaintiff’s actual room and board expenses total $78.43 per day.”  Order Granting Plaintiff’s Motion for Attorney’s Fees Incurred in Pursuing Unpaid Maintenance at 3 ll. 7-10.  The Court further ruled:  “American Seafoods’ ongoing denial of maintenance, which forced plaintiff to hire counsel to pursue benefits which he is plainly owed, is willful.”  Id.  The court went on to award the injured seafood processor attorneys’ fees for the cost of increasing his maintenance rate from $30.00 per day to $78.43 per day.

This is the second time this year that a court has rejected American Seafoods’ attempts to limit maintenance payments to $30 per day and provides hope to injured workers who struggle to meet their expenses while off work due to an injury on an American Seafoods vessel.  Earlier this year in Sabow v. American Seafoods Company, USDC Western District of Washington Case No. C16-0111-JCC, the Honorable John C. Coughenour ruled that American Seafoods could not limit maintenance payments to $30 per day and must reimburse injured workers based on their reasonable actual room-and-board.  American Seafoods has now appealed the issue to the Ninth Circuit Court of Appeals.

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Stacking Crab Pots in Alaska by Corey ArnoldIf you have been injured while working on a vessel, you may wonder if you can get your maintenance rate increased from what is set forth in your employment contact.  The short answer is “yes” in many circumstances.  For example, what if your employer’s contract set forth a maintenance rate of only $30 per day but your actual room-and-board expenses were $70 per day.  A seaman or fisherman is entitled to actual reasonable room-and-board expenses while recovering from an injury or illness on land in most situations.

“The rule of maintenance and cure is simple and broad: a seaman is entitled to maintenance and cure for any injury or illness that occurs or becomes aggravated while he is serving the ship.” Messier v. Bouchard Transp., 688 F.3d 78, 83-84 (2d Cir. 2012) (emphasis in original).  In Dean v. Fishing Co. of Alaska, Inc., 177 Wn.2d 399 (2013), the Washington State Supreme Court summarized the law of maintenance and cure:

Under general maritime law, a shipowner has a duty to provide maintenance and cure to a seaman who “becomes ill or is injured while in the service of the ship.” Vella v. Ford Motor Co., 421 U.S. 1, 3, 95 S. Ct. 1381, 43 L. Ed. 2d 682 (1975); Clausen v. Icicle Seafoods, Inc., 174 Wn.2d 70, 76, 272 P.3d 827 (2012). “Maintenance” is a per diem living allowance for food and lodging comparable to what the seaman is entitled to while at sea; “cure” is payment of medical expenses incurred in treating the seaman’s injury or illness. Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 528, 58 S. Ct. 651, 82 L. Ed. 993 (1938); Clausen, 174 Wn.2d at 76. The shipowner’s duty to pay maintenance and cure “continues until the seaman . . . reaches the point of maximum medical recovery.” 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 6-28, at 393 (4th ed. 2004) (citing Farrell v. United States, 336 U.S. 511, 522-23, 69 S. Ct. 707, 93 L. Ed. 850 (1949)). “‘Maximum medical cure’ is reached when the seaman recovers from the injury, the condition permanently stabilizes or cannot be improved further.” McMillan v. Tug Jane A. Bouchard, 885 F. Supp. 452, 459 (E.D.N.Y. 1995). . .

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On May 24, 2016, a federal court in Seattle rejected American Seafoods Company’s attempts to limit the maintenance rate to the $30 per day set forth in the employment contract. American Seafoods took the position that it would not pay our client more than the $30 per day set forth in the contract even though our client’s actual room-and-board expenses exceeded the contracted rate. As a result of the decision, American Seafoods can no longer limit its workers to the $30 a day set forth in its contracts and each worker is entitled to present evidence of their actual room-and-board expenses to establish their maintenance rate. This is a significant victory for American Seafoods seafood processors and other shipboard workers.

In finding in favor of our client and rejecting the rate set forth in the company’s contract in Sabow v. American Seafoods Company, USDC W.D. Wa. Case No. C16-0111-JCC, the Honorable John C. Coughenour adopted a burden-shifting test articulated by the Second Circuit in Incandela v. Am. Dredging Co., 659 F.2d 11, 14 (2d Cir. 1981). Under the Incandela burden-shifting test, a “seaman makes out a prima facie case on the maintenance rate question when he proves the actual living expenditures which he found it necessary to incur during his convalescence.” Incadela, 659 F.2d at 14. Once the seaman makes the proper showing, the burden shifts to the vessel owner to produce rebuttal evidence. Incandela, 659 F.2d at 14. In order to rebut the prima facie evidence presented by a seaman, the company must make a showing that the seaman’s expenses are unreasonable: “. . . Sabow need not find the cheapest accommodations – his accommodations need simply be reasonable.” Because American Seafoods failed to show that Sabow’s expenses were unreasonable, he was entitled to all of his living expenses under the doctrine of maintenance.

American Seafoods Company had further argued that the seaman’s living expenses should be prorated to take into account the fact that other family members lived in the apartment. Rejecting American Seafoods argument once again, the Court held that the amount of the seaman’s living expenses should not be prorated or otherwise reduced if he lives with other family members. In reaching this conclusion the Court reasoned that a seaman who pays for the rent or mortgage of a home he shares with his family actually spends out-of-pocket the entire amount. He cannot pay any less without losing his home. If a seaman would incur the lodging expenses of the home even if living alone, then the entire lodging expense represents the seaman’s actual expenses. Sabow v. American Seafoods Company, USDC W.D. Wa. Case No. C16-0111-JCC, Docket #30 at 12, citing Hall v. Noble Drilling, 242 F.3d 582, 589 (5th Cir. 2001).

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 5-10-13 photo law booksMaintenance and cure has been recognized in the United States courts dating back to 1823 when it was determined by the court that seamen by nature of their profession are particularly prone to injury and illness and are often ill-equipped to handle the expense of such. If while in service of a vessel, traveling to the vessel (in some instances), or on shore leave, a seaman is injured, falls ill or aggravates a pre-existing injury or illness, it is the duty of the ship-owner to provide the seaman with ‘maintenance’, which is a daily stipend intended to cover their room and board expenses while recuperating. The seaman’s employer has the duty to pay maintenance promptly until maximum medical improvement has been reached. Maintenance is most commonly paid twice per month.

Medical Cure

All reasonable and necessary medical treatment related to an injury or illness which occurred while in service of a vessel is considered “cure”. Seamen have the right to choose their own medical providers and are under no obligation to receive treatment from doctors selected by their employer. Generally a seaman’s health care providers bill the vessel owner directly for any treatments falling under cure. Employers must promptly reimburse the seaman for any out of pocket expenses relating to their treatment, including the cost of travel to medical appointments.

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901265_approaching_seattle_on_the_ferryOn March 1, 2016, a Snohomish County Superior Court Judge found that the ferry system had wrongfully denied payment of maintenance and ordered the Washington State Ferry system to pay 275 days of back maintenance to an injured ferry worker represented by Kraft Davies, P.L.L.C.  In holding in favor of the injured worker, the Court ordered the ferry system to pay back benefits of $19,175 and costs of $1,323. The ferry system had argued that it was still investigating the claim and that it needed the results of diagnostic testing and physical therapy so that it could complete its investigation. In reaching its decision, the Court rejected the ferry system’s claims and stated: “The Court finds that there has been no good cause for the State’s failure to pay maintenance, that the State’s claim that the results of diagnostic testing and physical therapy are necessary to allow it to complete its investigation of Kelly’s claim for maintenance is pretextual, and the State’s denial of maintenance despite its payment of the coextensive duty of cure is arbitrary and capricious.” The Court directed our client to submit an application for an award of attorneys’ fees against the ferry system for its wrongful failure to pay maintenance to the injured ferry worker. The application for attorneys’ fees must be filed within 14 days. The ferry system will also face the issue of punitive damages at trial for wrongful failure to pay maintenance.

Maintenance is a daily stipend owed to a seaman recovering from an illness or injury while in the service of the vessel and is owed until the seaman reaches maximum medical improvement from the condition. “The rule of maintenance and cure is simple and broad: a seaman is entitled to maintenance and cure for any injury or illness that occurs or becomes aggravated while he is serving the ship.” Messier v. Bouchard Transp., 688 F.3d 78, 83-84 (2d Cir. 2012) (emphasis in original). In Dean v. Fishing Co. of Alaska, Inc., 177 Wn.2d 399 (2013), a unanimous Washington Supreme Court summarized the law of maintenance and cure:

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IN ADMIRALTY

FINDINGS OF FACT AND CONCLUSIONS OF LAW RE EVIDENTIARY HEARING ON MAINTENANCE AND CURE

This matter came on for an evidentiary hearing, before the Court, sitting without a jury, on May 14, 2015. Plaintiff Jeffrey A. Hedges (Hedges) was represented by Robert M. Kraft, Richard J. Davies and Marissa A. Olsson of Kraft Davies P.L.L.C., and defendant Foss Maritime Company (Foss) was represented by Barbara L. Holland and Tyler A. Arnold of Garvey, Schubert & Barer. The Court has considered the evidence presented at the hearing, the exhibits admitted into evidence, the arguments of counsel, and being fully advised, makes its Findings of Fact and Conclusions of Law as follows:

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In an order dated May 22, 2015, a Seattle federal court judge issued a ruling requiring Arctic Storm, Inc. to pay back maintenance payments to two fish processors injured on May 20, 2013 when a fire broke out on board the C/P ARCTIC STORM and also held that the processors’ punitive damages claim against the company for delay in payment could go forward to trial.  In ruling in favor of the fish processors represented by our firm, the Court wrote:  “The Court finds at least some delays in maritime benefits payments that a trier of fact could conclude represented willful and wanton disregard for defendants’ rights, and thus defendants’ punitive damages claim should go forward.”

Another significant issue in the claim was Arctic Storm’s position that it didn’t have to pay maintenance to the injured fish processors until it was supplied with medical records documenting ongoing medical treatment for the injuries.  Rejecting this position taken by Arctic Storm, the Court further concluded:  “[Arctic Storm] has provided no authority holding that a shipowner may withhold benefits while it verifies that such a prognosis remains up-to-date.  Consequently, the Court rejects this notion. . .  The Court further finds that, in light of [Arctic Storm’s] conduct up to this point, and the fact that plaintiff has shown itself capable of paying defendants’ bills within two weeks . . . defendants are entitled to an order setting a regular payment schedule.”

The Court’s ruling is important because it forecloses the practice of requiring updated medical records documenting ongoing treatment in order to qualify for continuing maintenance payments.  As a practical matter, obtaining records can take significant time and substantially delay the payment of necessary maintenance to injured seamen.  Since maintenance payments are intended to provide subsistence payments to an injured seaman during recovery, delay in making these payments risks substantial hardship to the injured fish processor.  Holding that repeated delays in making maintenance payments could form the basis for a punitive damages claim, the Court wrote:  “This Court finds no persuasive authority holding that repeated delays of maritime benefits cannot support a punitive damages finding under this standard even where the amounts owed are eventually paid.”

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Does a vessel owner have an obligation to promptly furnish maintenance and cure to a seaman injured in the service of the vessel?  The short answer is yes and the maritime law prohibits vessel owners from creating artificial roadblocks to slow the administration of these maritime benefits.  “The adequate protection of an injured or ill seaman against suffering and want requires more than the assurance that he will  receive payments at some time in the indefinite future. Payments must be promptly made, at a time contemporaneous to the illness or injury.” Vaughan v. Atkinson, 369 U.S. 527, 537-538 (U.S. 1962) (Stewart, J., dissenting); see also Crooks v. United States, 459 F.2d 631, 635 (9th Cir. 1972) (same); Black v. Red Star Towing & Transp. Co., 860 F.2d 30, 33 (2d Cir. 1988) (“maritime law policy . . . calls for prompt and voluntary payment of maintenance and cure”).

A shipowner’s duty to pay maintenance and cure is “virtually automatic,” Baucom v. Sisco Stevedoring, LLC, 506 F. Supp. 2d 1064, 1073 (S.D. Ala. 2007), and serves to provide seamen “essential certainty of protection against the ravages of illness and injury.” Vella v. Ford Motor Co., 421 U.S. 1, 4 (1975). Maintenance and cure are “among the most pervasive incidents of the responsibility anciently imposed upon shipowners” and should not be defeated “by restrictive and artificial distinctions . . . If leeway is to be given in either direction, all the considerations which brought the liability into being dictate it should be in the sailor’s behalf.” Aguilar v. Standard Oil Co., 318 U.S. 724, 730, 735 (1943); see also Vaughan, 369 U.S. at 532 (ambiguities and doubts must be resolved in favor of the seaman); Wood v. Diamond M Drilling Co., 691 F.2d 1165 (5th Cir. 1982) (same). Defenses to maintenance and cure are “few and narrowly applied.” Silmon v. Can Do II, 89 F.3d 240, 242 (5th Cir. 1996). “Only some wilful misbehavior or deliberate act of indiscretion suffices to deprive the seaman of his protection.” Aguilar, 318 U.S. at 731.

“The policy underlying a broad maintenance and cure doctrine is ‘the almost paternalistic duty’ admiralty law imposes on a shipowner toward the crew.” Messier v. Bouchard Transp., 688 F.3d 78 (2d Cir. 2012) (quoting Garay v. Carnival Cruise Line, Inc., 904 F.2d 1527, 1530 (11th Cir. 1990)); see also, Perry v. Morgan Guaranty Trust Co., 528 F.2d 1378, 1379 (5th Cir. 1976) (“Policy considerations have led to the adoption of a somewhat paternalistic attitude toward seamen.”); Miles v. Apex Marine Corp, 498 U.S. 19, 36, 111 S. Ct. 317, 112 L. Ed. 2d 275 (1990) (“admiralty courts have always shown a special solicitude for the welfare of seamen and their families”).

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In order to qualify for coverage under the Jones Act and other general maritime law remedies, a seaman must be in the service of the vessel at the time of the injury or illness.  Whether a seaman is in the service of the vessel, is a recurring issue in maritime injury litigation, but is broadly construed by the courts in favor of coverage for the seaman.

The responsibility of vessel owners to seamen for maintenance, cure, and unearned wages is to be construed “broadly, when an issue concerning … scope arises”.  Aguilar v. Standard Oil Co., 318 U.S. 724, 729 (1943).  The U.S. Supreme Court held, “the words ‘in the course of his employment’ as used in the Jones Act were not restricted to injuries occurring on navigable waters, … they were broadly used by Congress in support of ‘all the constitutional power it possessed’”.  Braen v. Pfeifer Oil Transp. Co., 361 U.S. 129, 130-31 (1959).  “[T]he nature and foundations of the liability require that it be not narrowly confined or whittled down by restrictive and artificial distinctions defeating its broad and beneficial purposes.  If leeway is to be given in either direction, all the considerations which brought the liability into being dictate it should be in the sailor’s behalf.”  Aguilar, 318 U.S. at 735.

Whether a seaman is “in the course of employment” is a function of “1) the degree of control the employer-vessel owner had over the seaman at the time of injury; and 2) whether the seaman, at the time of injury, was on personal business or on a mission for the benefit of his employer or attending to the business of the employer.”  Lee v. Mississippi River Grain Elevator, Inc., 591 So.2d 1371, 1373 (La. App. 1991).

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