Seaman’s Employer Which Willfully Denied Maintenance & Cure Ordered to Pay Attorney’s Fees at $400/hour, $150/hour for Paralegal Work
A seaman is entitled to maintenance and cure for any injury or illness that occurs, manifests, or becomes aggravated while he or she is in service of his or her ship. “Maintenance” refers to reasonable and necessary food and lodging expenses. “Cure” is the seaman’s right to reasonable and necessary medical care until the seaman has reached “maximum medical improvement,” defined as the point at which the condition is permanent or cannot be improved with further medical treatment.
As the U.S. Second Circuit Court of Appeals observed last July in Messier v. Bouchard Transportation, “[i]t does not matter whether he is injured because of his own negligence….It does not matter whether the injury or illness was related to the seaman’s employment…It does not even matter, absent active concealment, if the illness or injury is merely an aggravation or recurrence of a preexisting condition…This well-established rule does not permit an exception for asymptomatic diseases—so long as the illness was present during the seaman’s service, he is entitled to maintenance and cure.”
Recently, in Hicks v. Vane Line Bunkering, Inc., 2013 U.S. Dist. LEXIS 55043 (S.D.N.Y. Apr. 15, 2013), the jury found against Ciro “Charles” Hicks, a mate on Vane Line’s tugboat, on his Jones Act negligence and general maritime law unseaworthiness claims. But, it found Vane Line liable as to his maintenance and cure claims, and that this employer had acted willfully in underpaying and failing to pay him maintenance and cure. So, the jury assessed damages as follows: underpaid maintenance – $77,000, future maintenance – $16,000, future cure – $97,000, past pain and suffering – $132,000, and $123,000 in punitive damages.
Given the willfulness finding, the Court also ordered Vane Line to pay Hicks’ attorney’s fees and expenses, including paralegal time. It valued Hick’s highly-experienced admiralty attorney’s services at $400/hour and the paralegal’s time at $150/hour, together with case expenses (depositions, copies, filing fees, etc.) totaling $112,083.77.
Thus, if you are a seaman and may not ultimately have a winning Jones Act negligence or general maritime law unseaworthiness case, you may still have a valuable general maritime law maintenance and cure claim, particularly where your employer has acted callously or willfully in failing to pay or underpaying you maintenance and/or cure.
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California Federal Court: “Primary Duty Rule” No Bar to Third Mate’s Personal Injury Claims
Employers of Jones Act seamen sometimes try to defeat the seaman’s personal injury or death case by invoking the “Primary Duty Rule,” sometimes also known as the Walker-Reinhart Doctrine, after the two cases which first announced the Rule, Walker v. Lykes Bros., 193 F.2d 772 (2d Cir. 1952), and Reinhart v. United States, 457 F.2d 151 (9th Cir. 1972).
Under the Primary Duty Rule, a seaman may not recover from his employer for injuries caused by his own failure to perform a duty imposed on him by his employment. And, if a seaman is found to have violated the Rule, his Jones Act negligence and general maritime law unseaworthiness claims can be completely barred. But, the Rule has three limitations: First, the seaman must have consciously assumed the duty as a term of employment. Second, the dangerous condition which injured the seaman must have been created by the seaman or could have been controlled or eliminated solely by the seaman in the proper exercise of his or her employment duties. Finally, the seaman must have knowingly violated a duty consciously assumed as a condition of employment.
By implication, the Rule has three limitations. First, it will not bar a claim of injury arising from the breach of a duty the plaintiff did not consciously assume as a term of his employment. Second, it does not apply where a seaman is injured by a dangerous condition he or she did not create and, in the proper exercise of his or her employment duties, could not have controlled or eliminated. Third, the rule applies only to a knowing violation of a duty consciously assumed as a term of employment.
In Barry v. United States, 2013 U.S. Dist. LEXIS 48915 (N.D. Cal. Apr. 1, 2013), the plaintiff, Stephen Barry, the vessel’s Third Mate, was overseeing a mooring operation at Newport News, Virginia. A stopper line broke. This caused the mooring line to strike and injure Barry’s left leg. Barry sued for negligence under the Jones Act and, under the general maritime law, for unseaworthiness and maintenance and cure. The Court found the stopper line provided by the defendant “was of insufficient tensile strength to perform the job for which it was intended.”
The Court thus found the defendant liable for Barry’s injury under his Jones Act claim. It held the defendant had a duty to provide Barry with a safe working environment, including adequate equipment to perform his duties, but breached this duty when it supplied Barry with “a stopper too weak to perform the mooring operation in a manner which seamen would customarily expect to be safe. During a mooring operation, a seaman normally would expect a stopper to withstand stress equivalent to one-half of a mooring line’s capacity, in this case 30 tons. The stopper on the Vessel, however, could take only 20 tons before breaking. Defendant and its agents had notice of this dangerous condition because they knew, or should have known, the customary equipment strength requirements. Moreover, Defendant and its agents procured the 1″ stopper nylon line and thus knew, or should have known, of its inadequate strength. Because Defendant negligently provided a stopper that could endure only 20 tons of stress, and not the 30 tons that a reasonable seaman would expect, the stopper failed during the mooring operation when subjected to no more than 24 tons of tension. This failure caused the mooring line to strike and injure Plaintiff.”
Since the Court found the defendant failed to prove Barry acted unreasonably for a seaman during the mooring operation, it concluded he was not subject to a contributory negligence finding nor did he violate the Primary Duty Rule as to his Jones Act negligence claim.
Finally, the Court found Barry had proved his general maritime law unseaworthiness claim by showing the stopper was not reasonably fit for its intended use. As to this claim as well, the Court held the defendant failed to prove Barry acted unreasonably for a seaman during the mooring operation and therefore he was “not subject to contributory fault or the primary duty rule….”
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Employer Not Automatically Entitled to Restitution for Maintenance and Cure Paid to Seaman Who Intentionally Misrepresents or Conceals Pre-existing Medical Condition
In Boudreaux v. Transocean Deepwater, Inc., 2013 U.S. App. LEXIS 5288 (5th Cir. Mar. 14, 2013), the U.S. Fifth Circuit Court of Appeals, perhaps the country’s most experienced and prolific appellate court in admiralty and maritime cases, in an opinion authored by Judge Patrick E. Higginbotham, reaffirmed the judiciary’s historical deference to seamen.
Before Wallace Boudreaux began work as a Jones Act seaman for Transocean, he answered “no” on the employer’s pre-employment medical questionnaire which asked if he had a history of back troubles. After five months of working for Transocean, Boudreaux said he’d injured his back while servicing equipment. Transocean then paid him maintenance and cure for nearly five years. Boudreaux later sued Transocean alleging it had failed to properly fulfill its general maritime law maintenance and cure obligation to him.
In the discovery phase of Boudreaux’s lawsuit, Transocean found out Boudreaux had had a history of back problems before he began work for Transocean. It then filed an unopposed motion for partial summary judgment on Boudreaux’s claim for further benefits, invoking McCorpen v. Central Gulf Steamship Corp., a 1968 Fifth Circuit Court of Appeals decision. McCorpen holds that a maritime employer does not owe its seaman employee maintenance and cure if it can show the seaman intentionally misrepresented or concealed a pre-existing medical condition that, had it known about at the time of hiring, it would not have hired the person. But Transocean went a step further. It filed a counterclaim against Boudreaux seeking to recoup the money it had paid Boudreaux and his medical providers. It claimed that since it successfully established its McCorpen defense, it should automatically be entitled to these funds. The Fifth Circuit disagreed.
The New Orleans-based appellate court wrote that a “maritime employer’s obligation to pay an injured seaman maintenance and cure is an essential part of the employment relationship, whether characterized as contractual or otherwise.” The court noted that in cases where the seaman does not have a Jones Act negligence or general maritime law unseaworthiness-based damages verdict against the employer which such a restitution claim might merely offset, “the employer would gain an affirmative judgment against the seaman. Although most likely uncollectible, the judgment would stand as a serious impediment to the seaman’s economic recovery, and its threat would have a powerful in terrorem effect in settlement negotiations.”
The Fifth Circuit was also reluctant to adopt Transocean’s argument because it is easier for the employer to escape maintenance and cure liability under the McCorpen rule than it would be to prove the seaman committed fraud. Under McCorpen, the employer need only show the seaman had an objective intent to conceal, that he or she “failed to disclose medical information in an interview or questionnaire that is obviously designed to elicit such information.”
Whereas, to win a fraud claim, one must show the alleged fraudster had a subjective intent to defraud, that is, the plaintiff in such a claim must show the person actually, in their mind, intended to defraud, or as the court described it here, “fraud hinges on the subjective state of mind of the alleged wrongdoer.” The court also noted issues of fraud are usually left to a jury to decide and should not be decided on summary judgment by a judge.
Taking the above into account and also the history of solicitude courts have shown to seamen, the court wrote, “a restitution-via-McCorpen counterclaim would, in practice, threaten injured seamen with the specter of crushing liability for misstatements found material. With respect, such a result is inimical to the existing fabric of maritime law.” It concluded:
“We are offered no reason to depart from precedent. There is only the change of advocates and judges, by definition irrelevant to the settling force of past jurisprudence — always prized but a treasure in matters maritime. All this against the cold reality that the sea has become no less dangerous, and the seaman no less essential to maritime commerce.”
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Linesman’s Louisiana State Court Lawsuit, in Which he Claimed to Be Jones Act Seaman, Improperly Removed to Federal Court
Earl Scott Brewer filed a lawsuit in the Twenty-Third Judicial District Court of St. James Parish, Louisiana, against Cooper/T. Smith Mooring Co. (“Cooper”) and others. He claimed he worked for Cooper as a linesman and that when pulling on a line while releasing a barge from a dock, he seriously injured his neck, back and shoulder. Cooper transferred, or “removed,” Brewer’s lawsuit to federal court in New Orleans. Brewer then filed a motion in federal court, asking the judge to “remand” his Jones Act case, or send it back, to Louisiana state court. Cooper and the other defendants argued in opposition that Brewer failed to qualify as a Jones Act seaman and therefore that the law which prohibits defendants from removing Jones Act suits did not apply.
In Brewer v. Motiva Enters., LLC, 2013 U.S. Dist. LEXIS 16810 (E.D. La. Feb. 7, 2013), U.S. District Judge Nannette Jolivette Brown sided with Brewer and sent his case back to state court. She wrote that “[w]hile Jones Act suits filed in state court are typically immune from removal, defendants may pierce the pleadings to show that a Jones Act claim has been fraudulently pled by a plaintiff to prevent removal.” The Court noted, however, that “the burden is on a defendant to refute a plaintiff’s assertion that he is a Jones Act seaman when the defendant seeks removal, and all doubts must be resolved in favor of the plaintiff….the mere assertion of fraud is not sufficient to warrant removing the case to federal court….Defendants must prove that the allegations of the complaint were fraudulently made, and any doubts should be resolved in favor of the plaintiff.”Judge Brown discussed the United States Supreme Court’s two-part test to determine whether a worker can qualify as a seaman under the Jones Act: “First, ‘an employee’s duties must ‘contribut[e] to the function of the vessel or to the accomplishment of its mission.’ Second, ‘a seaman must have a connection to a vessel in navigation (or to an identifiable group of vessels) that is substantial in terms of both its duration and its nature.’ The purpose of the substantial connection requirement is ‘to separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based maritime workers who have only a transitory or sporadic connection to a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea.'”
Judge Brown discussed the U.S. Supreme Court’s decision in Chandris v. Latsis, in which the high court adopted the U.S. Fifth Circuit Court of Appeals’ “thirty percent rule” to decide whether a worker has a connection to a vessel substantial enough to qualify as a Jones Act seaman. In the Chandris decision, the Supreme Court wrote that “[a] worker who spends less than about thirty percent of his time in service of a vessel in navigation should not qualify as a seaman under the Jones Act.”
Brewer argued to Judge Brown that in ruling on “the substantiality of an employee’s vessel related work, the Court must look at his entire work history; however, when an employee has received a new permanent work assignment before the alleged accident, substantiality is measured in relation to his new job.” Brewer also argued it was improper for the Defendants to include standby time in the total calculation of his work history in an effort to show his vessel-related work was less than the required 30%.
Judge Brown concluded: “In the absence of controlling authority that [standby] time must be included in the [seaman status] calculation, this Court cannot say that Plaintiffs’ claim that it should not be included is ‘baseless in law.’ Therefore, Defendants have not met their burden and this matter is appropriately remanded to state court.”
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Liability Waiver Signed by Cruise Line Passenger While on Sea-Doo Excursion is Void Under Limitation of Liability Act
As described in In re Royal Caribbean Cruises, 2013 U.S. Dist. LEXIS 14610 (S.D. Fla. Feb. 4, 2013), Linda Arnold and her husband, Glynn Daniels [the Court in its opinion refers to Daniels as her “boyfriend,” but in her filings in the case, Arnold says Daniels is her husband], went on a three-day cruise aboard Royal Caribbean Cruises, Ltd.’s (“Royal”) ship, the “MONARCH OF THE SEAS.” The cruise began and ended at Port Canaveral, Florida. While on a planned stop at Coco Cay, Bahamas (an island operated by Royal), Arnold and Daniels signed up for a personal watercraft (“PWC”) tour of the island, offered by Royal. To participate, they had to go through a safety orientation conducted by Royal employees. They were each also required to sign Royal’s liability waiver form, called a “Personal Watercraft (Wave Jet Tour) Express Assumption of the Risk – Waiver & Release of Liability.”
2010 Sea-Doo Model GTI-130
[As an aside, the Court in its decision refers to the PWCs throughout its opinion as “jet-skis” or “jet skis.” Even though the term “Jet Ski” is often used to refer, generically, to various makes of PWCs, I am confident the manufacturer of the product, and owner of the trademark, Kawasaki Motors Corp., U.S.A., would not be pleased. And, actually, the two PWCs involved in the accident you are about to read about were 2008, 2009, or 2010 model GTI-130 “Sea-Doos” (another registered trademark), manufactured by Bombardier Recreational Products Inc. Royal states in one of its filings in the case it’s unsure which Sea-Doos were actually involved in the accident: “there were fifty-eight (58) Seadoo jet skis in use by Petitioner at Coco Cay, Bahamas. All of these Seadoos were GTI-130 models and all were from the years 2008, 2009, or 2010. As the exact Seadoos involved are unknown, Defendant stipulates, for the purposes of this Complaint, that the jet skis involved in the crash were the most valuable jet skis in use at Coco Cay at that time, i.e., the 2010 GTI-130.”]
Royal Caribbean Cruises Ltd.’s MONARCH OF THE SEAS
So, Arnold and Daniels go on the PWC island tour. This is held in single-file, follow-the-leader format, with guides aboard PWCs in the lead and tail positions, while the guests are to be widely spaced in between on their own rented PWCs. Arnold and Daniels were on the Sea-Doo which was sixth in line. Daniels was driving. Arnold was the passenger. The plan was that when the tour began, the guide who was to eventually ride at the end of the line would ensure guests only departed on their PWCs when there was a sufficient gap between them and guests in front of them. But, sometime after the tour began, the guests aboard the fifth-in-line PWC slowed down. Daniels in turn slowed his and Arnold’s PWC, which was just behind the fifth-in-line PWC. But, other PWCs behind them caught up, failed to maintain a gap, and Arnold’s and Daniel’s PWC was struck by the PWC operated by another guest, who was either the eighth or ninth in line. Arnold was injured.
Royal filed suit in Florida federal court under the federal Vessel Owners’ Limitation of Liability Act, 46 U.S.C. § 30505. This statute allows a vessel owner to seek exoneration from liability in an offensive filing in federal court, and, alternatively, to seek to have its liability limited to the post-casualty value of its vessel(s), if it can show that it lacked privity to or knowledge of the acts, events, or conditions which caused the accident. In its Limitation Act suit, Royal thus sought to be exonerated from liability for the accident, or alternatively that its liability be limited to $9,600, the maximum potential value of its two Sea-Doos involved in the accident.
In her Claim, filed in Royal’s Limitation of Liability Act case, seeking to recover for her injuries which she alleged were caused by Royal’s negligence, Arnold wrote:
“During the preparations for the excursion when the group participants came together, Plaintiff and other participants observed the driver of the Jet Ski who struck Plaintiff, and her companion, to be acting erratically, inattentive to the instructions, and overtly under the influence of drugs or alcohol, sufficient to give ample notice the Defendant, RCCL, its agents and employees, including the Jet Ski operators and instructors who have a duty, under the circumstances, to control said unfit participants and prevent them from participating as unable and potentially harmful to others.”
Royal asked the Court to dismiss Arnold’s claims. It argued Arnold had waived her right to sue when she signed Royal’s waiver. U.S. District Judge Robert N. Scola, Jr., however, denied Royal’s motion. He found Royal’s waiver was invalid under federal law, specifically, under another section of the Vessel Owners’ Limitation of Liability Act, 46 U.S.C. § 30509, which voids contractual provisions which purport to limit passenger vessel owners’ liability for personal injury or death. Section 30509, entitled “Provisions limiting liability for personal injury or death,” states:
“(a) Prohibition.
(1) In general. The owner, master, manager, or agent of a vessel transporting passengers between ports in the United States, or between a port in the United States and a port in a foreign country, may not include in a regulation or contract a provision limiting–
(A) the liability of the owner, master, or agent for personal injury or death caused by the negligence or fault of the owner or the owner’s employees or agents; or
(B) the right of a claimant for personal injury or death to a trial by court of competent jurisdiction
(2) Voidness. A provision described in paragraph (1) is void.”
Trial of the Arnold case is scheduled to begin on September 9, 2013, in Miami.
The U.S. Eleventh Circuit Court of Appeals, in an unpublished decision rendered in December 2011, in Johnson v. Royal Caribbean Cruises, Ltd., similarly found Section 30509(B)(2) voided the same cruise line’s electronically-signed aboard ship release. See www.ca11.uscourts.gov/unpub/ops/201111729.pdf
To learn more about the Vessel Owners’ Limitation of Liability Act, click the link to read my November 2011 column in MarineNews magazine, “The Vessel Owners’ Limitation of Liability Act — An Anachronism that Persists, For Now.”
Finally, if you’re wondering why I included a discussion of this Royal Caribbean case, which seemingly has nothing to do with towboats and barges, in Towboatlaw, just send me an e-mail or “leave a reply,” and I’ll explain. :-)
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