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A crewmember or seaman who suffers an injury or illness while in the service of the vessel is entitled to maintenance and cure. Maintenance is money to pay for food and lodging expenses on a daily basis that the seaman will require during the time he is receiving medical care for his injury or illness. Cure represents the medical treatment a seaman is entitled to receive for his injury or illness. A crewmember's or seaman's employer is responsible to provide maintenance and cure to a seaman.
Often times, the cruise ship employers provide maintenance by arranging for a crewmember to stay at a hotel close to the area where the medical treatment is being provided. At the hotel, the cruise ship company also provides the meals for the seaman.
The crewmember often times ask why they are not receiving additional money for maintenance benefits while they are on medical leave staying at a hotel the employer has provided. The answer to that question is the employer's obligation under the maintenance doctrine, unless the employer also has an obligation to provide unearned wages, is to provide for food and lodging expenses only. The employer can do this by providing the hotel with meals included, instead of giving the seaman money in order for the seaman to pay for his food and lodging expenses. Although this is a convenience to the employer, because it reduces bookkeeping functions to keep track of all of the payments of maintenance and cure to seamen on medical, the seaman also often times suffers by this arrangement. Often times, the food and lodging accommodations are very bad. The seaman is required to eat at the same place all of his meals every day, often times for many months during the time he or she has received medical care and treatment. The amount of money allocated for three meals per day is often times inadequate for the seaman to have a good diversity of food available to him on a daily basis, and does not leave any additional money for the seaman to obtain any type of snacks or additional drinks in between the three meals being provided at the hotel. Often times, the seaman will complain that the food provided at the hotels the cruise ship company picks for them to stay at is very poor, and there are many complaints about the sanitary conditions of the places where the seaman are being provided their food and lodging accommodations. The cruise lines take a hard nose approach with respect to complaints, especially when the seaman or crewmember is represented by a lawyer.
Another aspect of the maintenance and cure that the cruise ship company abuses is they do not provide the seaman with additional money on a daily basis for the seaman to obtain personal items needed when staying at a hotel, such as shaving cream, deodorant and other personal items. In addition, the cruise ship company does not provide the seaman with any money to allow the crewmember to use the phone to contact and speak with his family. Often times, the seaman or crewmember is housed at a location far away from their home, and the cruise ship company has isolated them from their family, and has not allowed a family member to be present with the crewmember during the medical care and treatment. This happens even when medical recommendations are for family member to assist the crewmember during this convalescence. The cruise ship companies are very cold in their approach towards the seaman during their maintenance and cure time.
Our firm often has to fight hard to get seaman their maintenance and cure benefits, and to try to rectify these abuses in the maintenance and cure process.
A crewmember or a seaman must also be careful when applying for a job with a shipping company, including a cruise ship company. The seaman or crewmember is subjected to a pre-employment physical examination, and also must fill out a form which asks many questions regarding the past medical history of the crewmember. Often times, the crewmembers do not understand these forms, or are rushed. Many times the doctor conducting a pre-employment physical examination assist the crewmember quickly with these forms and routinely checks off no to any past medical problems even if a crewmember or seaman has suffered some type of medical issue in the past. Regardless, the crewmember must pass the physical examination in order to get the job, which is designed to determine whether the crewmember is fit for employment or not. Often times the forms are not relied upon at all when the employers are making the decision to hire a crewmember or not.
The significance of these forms is that there is maritime law that has developed addressing an employer's argument that a seaman intentionally failed to disclose a prior medical problem, where the employer argues that had it been properly informed of the medical condition it would not have employed the crewmember. Accordingly, when the crewmember suffers an injury or illness with respect to a medical problems that arguably is similar to a prior medical problem not disclosed, the ship owner/employer tries to deny maintenance and cure to the crewmember on the basis that the crewmember intentionally failed to disclose the prior medical problem, and had the crewmember been honest he would not have been employed.
A maritime doctrine has developed to address this defense asserted by the ship owner or employer as to the obligation to provide maintenance and cure when a seaman arguably failed to disclose a prior medical condition.
An employer of a seaman does have a right to investigate a seaman's claim for maintenance and cure benefits. There are defenses the employer may rely upon to defend a maintenance and cure action. One of these defenses is that the injured crewmember willfully concealed a pre-existing medical condition from the employer.
The doctrine that has developed to address this issue is called the "McCorpen Doctrine".
The test to determine whether an employer can escape its obligation to pay maintenance and cure when arguing that a seaman failed to disclose a pre-existing medical condition is a three part inquiry:
I have read many cases addressing this issue, and it is very difficult for an employer to convince the court that a seaman intentionally concealed information to the extent that the employer can deny maintenance and cure benefits. Maintenance and cure is an ancient doctrine entitled to protect seamen, and it is an automatic obligation imposed upon an employer when a seaman gets injured regardless of any fault. This obligation is automatic and technicalities should not be utilized by the ship owner to deny maintenance and cure. Any ambiguities or doubts as to the right to a seaman to receive maintenance and cure must be resolved in favor of the seaman.
Maintenance and cure is an important obligation on the part of an employer/seamen, one that is designed to protect seamen injured while in the service of the ship. This entitles the seaman to medical care and treatment, and is the most important right of a seaman. It is an obligation that is automatically imposed on the employer of the seaman with the contract of employment. The obligation is so strict that case law has held that the employer may not take away this right by contract. However, the Courts have missed this critical point, which is that an employer should not be able to alter the maintenance and cure obligations by contract. There is emergent case law which has allowed employers to alter their obligations under the maintenance and cure doctrine. Many employers have put into the contract restrictions on the maintenance and cure obligations, including restrictions on the amount of maintenance a crewmember is entitled to receive. The shipowners have recently gone further and subjected maintenance and cure claims to arbitration, taking away a critical enforcement procedure of the crewmember to obtain his or her maintenance and cure, which is to go into a Court of law and file an emergency motion to compel maintenance and cure. There is case law that gives the judge the authority to grant injunction relief to a seaman in order to provide maintenance and cure required on an emergency basis. By taking away the right of the seaman to go into court, and instead forcing a seaman to rely on the arbitration process, the courts have taken away a critical weapon a seaman had in their arsenal to enforce maintenance and cure rights. We are seeing an emergent trend where the cruise ship companies are using the arbitration process to delay maintenance and cure benefits to crewmembers, realizing that the key mechanism to enforce the maintenance and cure obligations have been taken away from the seamen, including the court's power to award attorney's fees and punitive damages when an employer acts willfully, arbitrarily and capriciously in denying maintenance and cure benefits.
Our firm has assisted thousands of crewmembers over the years in obtaining their maintenance and cure benefits, their retirement benefits, as well as pursuing claims for personal injuries and wrongful death under the Jones Act and general Maritime Law of the United States. We continue to assist crewmembers in pursuing such claims, whether in a court of law with a jury trial, or under the recently involving arbitration procedures that the employers and cruise ship companies are requiring for resolution of any disputes the seamen may have with their employer. We continue to fight the employer and cruise ship companies attempts to take away the seamen's right to pursue claims in a court of law with a right to a jury trial, and argue that mandatory arbitration in a seaman's employment contract is improper and illegal. We will continue to fight that battle, and hopefully the Supreme Court of the United States will ultimately look at this critical issue for seamen, and declare that it is illegal to deny a seaman his rights under the Jones Act and general Maritime law of the United States by inserting mandatory arbitration agreements in take it or leave it seaman's employment contracts.
Brett Rivkind has always been considered a leading expert in the field of Maritime Law. He has acted as past President of the Florida Bar Admiralty Committee. He has lectured on maritime issues to lawyers and judges. He was invited by the United States Congress to appear at Congressional Hearings addressing Maritime Safety laws. He spoke at the Congressional Hearings as a Maritime Legal Expert.
Brett Rivkind continues to actively act as a safety advocate for passengers and crewmembers harmed at sea. He represents passengers and crewmembers in all types of maritime incidents and disasters. He is currently representing passengers in the Costa Concordia case. He handles cases involving injuries and accidents suffered by passengers on cruise ships, as well as all types of boating accidents.