MAIN­TE­NANCE AND CURE IN PR I VATE OPER ATIONS

Own­ers should be fa­mil­iar with crew obli­ga­tions

Marlin - - RUN&GUN - BY R ALEIGH P. WAT­SON, ESQ.

Many ves­sel own­ers em­ploy full-time cap­tains, mates, stew­ardesses and engi­neers. How­ever, most own­ers are un­fa­mil­iar with their obli­ga­tions and re­spon­si­bil­i­ties to crewmem­bers un­der mar­itime law.

THE DEF­I­NI­TIONS

Main­te­nance and cure are the ba­sic ben­e­fits an in­jured sea­man re­ceives from an em­ployer dur­ing his or her re­cov­ery from an in­jury or ill­ness. Main­te­nance per­tains to day-to-day liv­ing ex­penses, which in­clude food, lodg­ing and trans­porta­tion to and from a treat­ment fa­cil­ity, while cure is a sea­man’s med­i­cal ex­penses. The doc­trine has been around for many years, and was cre­ated be­cause sea­men are prone to in­jury and were tra­di­tion­ally thought to be ill-equipped to han­dle such ex­penses. It is sim­i­lar to work­ers’ com­pen­sa­tion, but is far more ex­pan­sive be­cause it is not re­stricted to in­juries or ill­nesses di­rectly caused by the sea­man’s em­ploy­ment.

THE BA­SIC OBLI­GA­TIONS

An owner’s obli­ga­tion to pay main­te­nance and cure arises when a sea­man’s in­jury or ill­ness oc­curs, be­comes ag­gra­vated or man­i­fests it­self while in ser­vice of the ves­sel, and the right to such ben­e­fits ex­ists re­gard­less of fault or the sea­man’s neg­li­gence. An em­ployer is ob­li­gated to pay main­te­nance and cure un­til the sea­man is fit for duty, or un­til he reaches max­i­mum med­i­cal im­prove­ment, which is the point at which a per­son has re­cov­ered as much as pos­si­ble with rea­son­able med­i­cal treat­ment. To be clear, it does not mean a full re­cov­ery is al­ways nec­es­sary be­fore pay­ments stop.

SEA­MAN STA­TUS IS A MUST

An in­di­vid­ual must qual­ify as a Jones Act sea­man to be eli­gi­ble for main­te­nance and cure. Ac­cord­ing to the U.S. Supreme

Court, the key to sea­man sta­tus is the em­ploy­ment-re­lated con­nec­tion to a ves­sel in nav­i­ga­tion, and courts fol­low a two-pronged test to de­ter­mine if an in­di­vid­ual qual­i­fies. First, the em­ployee must demon­strate his du­ties con­trib­ute to the func­tion of a ves­sel or the ac­com­plish­ment of its mis­sion. Sec­ond, the em­ployee must have a con­nec­tion to a ves­sel sub­stan­tial in both its du­ra­tion and na­ture. Courts have used a gen­eral rule that an em­ployee or worker who spends less than about 30 per­cent of his time in the ser­vice of a ves­sel in nav­i­ga­tion does not qual­ify for sea­man sta­tus. How­ever, courts have also stated that the 30 per­cent rule is merely a guide­line, and a de­par­ture from it may be jus­ti­fied in cer­tain cases.

NOT SO SIM­PLE

The truth is the ap­pli­ca­tion of main­te­nance and cure, and whether a worker is a sea­man, is not as sim­ple as it seems. In­deed, a full-time cap­tain or mate will typ­i­cally qual­ify as a sea­man un­der the Jones Act and will be eli­gi­ble for main­te­nance and cure ben­e­fits for most in­juries and ill­nesses. How­ever, many cases are not so straight­for­ward. For ex­am­ple, con­sider a part-time cap­tain who fishes week­ends and tour­na­ments and han­dles the ves­sel’s up­keep while at the dock. Is he cov­ered if he is di­ag­nosed with can­cer? An ac­cu­rate anal­y­sis of whether he qual­i­fies for main­te­nance and cure is im­pos­si­ble with­out more spe­cific facts. Of course, the point of this ar­ti­cle is not to dive into le­gal ar­gu­ments within cer­tain fact pat­terns. Rather, it is im­por­tant for own­ers to un­der­stand their ba­sic obli­ga­tions un­der mar­itime law and be aware that main­te­nance and cure does ap­ply to pri­vate yacht and sport­fish op­er­a­tions. It also pro­vides another ex­am­ple of why it is im­per­a­tive to have an ap­pro­pri­ate ma­rine-in­sur­ance pol­icy and to un­der­stand its terms.

If a deck­hand be­comes in­jured, they may be en­ti­tled to main­te­nance and cure un­til they are fit to re­turn to duty.

ABOUT THE AU­THOR RALEIGH WAT­SON HAS PRAC­TICED MAR­ITIME LAW FOR FIVE YEARS IN FLORIDA AND IS AN AVID OFF­SHORE AN­GLER.

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