Maintenance and Cure - Whether Employer or Seaman Liable for Therapeutic Care

March 1997

In the U.S.A, the General Maritime Law doctrine of maintenance and cure reflects long established rights available to mariners who are injured or fall ill while in the service of their ship.

A vessel owner's obligation to provide maintenance and cure is a non-delegable duty, imposed regardless of any fault. Maintenance is a per diem living allowance, paid until a seaman has reached the point of "maximum medical improvement". Cure is the payment of medical costs not otherwise furnished to a seaman, again, until the point of maximum improvement.

Once the seaman establishes his right to maintenance and cure, the burden shifts to the shipowner to prove that the seaman has reached the point of maximum medical improvement. Once this position has been reached and any treatment becomes purely palliative in nature, rather than curative, the vessel owner's obligation usually ceases. However, a recent ruling in a Federal Southern District Court, Florida expanded the traditional doctrine of maintenance and cure to include therapeutic treatment.

A crewmember by the name of Ewart Rose became incapacitated whilst in the service of the vessel, due to the fact that he was suffering from IgA nephropathy, an incurable kidney disease. Mr. Rose was told he required either life-long dialysis or a transplant. The cruise line declined to pay for the recommended therapeutic treatment on the basis that it was not curative, relying on the accepted view that the doctrine of maintenance and cure does not require provision of merely palliative treatment. The vessel owner filed a Declatory Relief Action in order for the Court to establish the extent of its responsibility.

In his ruling Judge Stanley Marcus expanded the traditional doctrine of maintenance and cure, as outlined above, to include therapeutic treatment. The Court rejected the shipowner's contention that such a ruling effectively created an open ended obligation towards seamen, stating that the law of maintenance and cure is about "allocating cost, benefit and risk".

Effectively, the Court reached it's decision on the basis that in the absence of dialysis or a transplant, Mr. Rose would lose any reasonable chance of continuing life for an indefinite period of time. Without these treatments the Court found that Mr. Rose would face death and that consequently the plaintiffs were unable to meet their burden of proving that dialysis and transplantation did not offer a meaningful prospect of bettering Ewart Rose's condition.

The implications of the ruling (if it stands) are potentially serious because the definition of "therapeutic" treatment could arguably be applied to include the cost of treating cancer, AIDS, infection with the HIV virus or other illnesses which cannot be "cured" in the accepted sense.