LEGAL LOOKOUT    June 2009

Maintenance and cure: collectible under penalty of punitive damages (Jones Act notwithstanding)

by Steve Block

Maritime law consists of myriad principles that have evolved over the ages.  Some have roots thousands of years in the past, some are newbies that go back only a century or two, and a few are innovations even more recent than that.  Sure, the concepts are interpreted and reinterpreted in the context of contemporary circumstances, but the law – by and large – has remained the same (the names haven’t been changed to protect those who originally conceived them).

Law governing water carriage has always recognized and appreciated the risks and sacrifices mariners make to provide that most quintessential element of interstate and international commerce – waterborne transportation.  While circumstances have improved, vessel operation has always been a dangerous business, and one that inherently displaces seamen from their homes and families.  Thus, international maritime law – since time immemorial – has always provided sick and injured vessel crewmembers certain benefits.  The right to “maintenance and cure” has been around perhaps as early as the Philistine period, and was recorded in the Rolls of Oléron, the first formal statement of maritime law promulgated in 1160 A.D.  Maintenance and cure rights undoubtedly pre-date that most famous of international ocean voyages, that of Columbus to America.

The common law doctrine of maintenance and cure essentially make vessel operators their seamen-employees’ comprehensive medical and disability insurer.  Put briefly, it obligates maritime employers to pay the medical costs of their seafaring employees through the point of “maximum medical improvement,” and the value of room and board of the quality a seaman enjoys on a ship (which isn’t a particularly high standard, and typically is valued at 20 to 50 bucks a day).  Liability for an accident is irrelevant; maritime employers are responsible for taking care of their employees even if they’re completely fault free.

Fast forward, let’s say, a millennium or so, and the United States gets around to codifying points of maritime law as federal statutes.  In 1920, Congress promulgated The Merchant Marine Act, colloquially known as “the Jones Act” (after its sponsor, Senator Wesley L. Jones of Washington), which incorporated certain common law provisions regarding seamen’s rights.  But it’s silent as to maintenance and cure, as well as that other age-old American claimant’s trump card, punitive damages.

It’s not surprising that the evolution of antediluvian concepts – after centuries of being construed and reconstrued within progressive social, technological and legal frameworks – have generated uncertainty and incongruity.  You can’t reduce a vast and history-enriched body of law to a few statutory phrases and expect everything to be as crystal clear as the Caribbean Sea.  No wonder legal concepts frequently come to a head in our industry.

That recently happened with respect to maintenance and cure and punitive damages when tugboat seaman Edgar Townsend hurt his arm while on duty.  His employer, Atlantic Sounding Company, advised him the company would not pay him maintenance and cure.  Mr. Townsend sued Atlantic Sounding in the U.S. District Court for the Middle District of Florida, not just for his medical expenses, room and board, but for punitive damages resulting from the employer refusing to pony up the same.

Atlantic Sounding moved to dismiss both claims.  It argued that the Jones Act was designed to provide injured seamen their exclusive remedy against their employers.  It could have stated specific rights had Congress intended it to, including maintenance and cure and punitive damages.

 he court denied Atlantic Sounding’s motion, and case worked its way to the United States Supreme Court, which granted certiorari based on discrepancies in decision of a few U.S. Court of Appeals.  Settling the question, the High Court ruled that Mr. Townsend is indeed entitled as a matter of common law to maintenance and cure, and to punitive damages based on Atlantic Sounding’s “willful” refusal to pay it.

Seamen plaintiffs are empowered to “elect” to bring their claims under common law and/or the Jones Act.  The Jones Act didn’t eliminate any common law rights, even though it codified certain ones within its text.  If the statute had been meant to be a seaman’s exclusive remedy, it would have said so.  The Supreme Court “has consistently held that the Jones Act preserves common-law causes of action such as maintenance and cure . . .”

Atlantic Sounding pointed to a couple of earlier Supreme Court precedents it interpreted to impose a choice of common law or the Jones Act on seamen.  That interpretation was erroneous, as the cited case law addressed whether common law provided remedies for certain claims, and whether the Jones Act statutorily limited available remedies.  That’s a whole different question than the one presented here.  The earlier cases did not force seamen to elect statutory or common law, or provide that the Jones Act controls exclusively.

Similarly, the general maritime law allows punitive damages awards.  Indeed, the availability of punitive damages for nonpayment of maintenance and cure “has been recognized for more than a century.”

Many maritime personal injury attorneys, as well as their clients, operate under the assumption that the Jones Act is the be all, end all, source of their rights and remedies.  That presumption actually would achieve a fundamental goal of admiralty law – uniformity and defined expectation of rights and remedies.  With the Supreme Court’s latest pronouncement, counsel and parties to maritime injury litigation are reminded that their entitlements and exposures are broader and less defined than a handy-dandy statute might suggest.

Ref: Merchant Marine Act (the Jones Act), formerly 46 USC § 688 and recodified on October 6, 2006 as 46 U.S.C. § 30104; Atlantic Sounding Co., Inc. v. Townsend, 129 S.Ct. 2561 (2009).