U.S. - HIV/AIDS - Impact on Recruitment, the Obligations of the Owner and the Rights of Other Crewmembers

June 1999

(Sea Venture Volume 18)

The 11th Circuit District Court decision in Equal Employment Opportunities Commission v Dolphin Cruise Line, Inc. & Ulysses Cruises Inc, has substantial implications for vessel owners and operators.

Mr David Sievers applied for a position as entertainer aboard one of Dolphin Cruise Lines ships, through American Entertainment Productions, Inc.(AEP), a recruiting agency retained by Dolphin. AEP sent Sievers a six month contract of employment, conditioned upon the outcome of a mandatory medical examination, which included an HIV test. The contract designated Sievers as an Entertainer/Cruise staff Member on the ‘Ocean Breeze’, one of the vessels managed by Ulysses and for which Dolphin arranges cruises. When AEP learned that Sievers had tested HIV positive, his contract was withdrawn. The Equal Employment Opportunities Commission (EEOC) filed suit on behalf of Sievers against the ship owners and agents, claiming discrimination contrary to the Americans with Disabilities Act 1992 (ADA). (For previous discussion of the ADA, see "Sea Venture" Vol.15, Page17.)

The basis of the suit was that Sievers’ condition did not represent a ‘direct threat’ to shipboard personnel and passengers. The defendants argued that on the ship Sievers would have intimate contact with other crew members and passengers. Consequently, they contended that he posed a direct threat because he (i) could transmit the HIV virus to others; (ii) was susceptible to and could transmit other contagious diseases to which HIV/AIDS infected patients are particularly susceptible; and (iii) would experience bouts of depression which would reduce his effectiveness as an employee. They argued further that the risk would have been increased due to the relatively small, congested nature of the ship, and the necessarily close contact between entertainers and other crew members and passengers. This increased risk, for which they could provide no reasonable accommodation, would subject the defendants to liability in tort from other crew members, passengers or Sievers himself.

The Court entered partial summary judgement in favour of the plaintiff, finding that a party who is HIV positive seeking to work as an entertainer aboard a cruise ship would not pose a significant risk of harm to himself or others and should, therefore, be allowed to do such work.

As a result of this decision, it should be noted that a shipowner with a base of operations or offices in the United States cannot conduct pre-employment exams for HIV or AIDS and cannot prohibit people who are HIV positive or have AIDS from employment without valid business reasons. If an employer can demonstrate that a particular crew member’s disability poses a ‘direct threat’ to himself, his co-workers, or passengers, the crew member may be prohibited from performing certain tasks. However, ship owners must be aware of the fact that proving that a ‘direct threat’ exists is extremely difficult.

Direct Threat

Under the ADA, the ‘direct threat’ exception is very narrowly construed. The EEOC has recently given examples in its rules of those who might be considered to pose a ‘direct threat’. These include physicians and food handlers. However, it must be remembered that each case is individual. In some cases the EEOC has refused to apply a ‘direct threat’ exception for food handlers. It must also be kept in mind that an employer cannot apply the ‘direct threat’ exception without a reasonable accommodation of the crewmember and must justify the exception and the inability to accommodate. The employer has the burden of proof in this regard and the burden of proof will depend on the facts of the case.

Confidentiality

An owner who knows/is aware of the fact that a crewmember or passenger is infected with the HIV virus has a duty of confidentiality towards the employee or passenger. However, this information must be passed to persons to whom it would pose a ‘direct threat’, such as the ship’s physician. If the HIV or other disability would pose a direct threat to others then the employer should consider changing the employee’s position, so as to remove the direct threat and maintain the high degree of confidentiality concerning the employee’s HIV or other disability.

Maintenance and Cure

Maintenance and cure must be paid to a crewmember who becomes ill or is injured during the course of employment. This obligation exists until the crewmember has reached maximum medical cure, i.e. the point at which he will not receive any further benefit from medical treatment. A shipowner who fails to pay maintenance and cure in accordance with his obligations can be sued and held liable for damages and possibly, in some circuits, punitive damages and attorneys fees (but see the "Punitive Damages" article in this volume of "Sea Venture" concerning such matters). The only established defences to the maintenance and cure obligation are a seaman’s own wilful misconduct, a purposeful concealment of a known medical condition, or a refusal to accept medical treatment which worsens the condition.

Although HIV/AIDS itself is still considered incurable, it is likely that the courts would require the employer to treat until cured the other illnesses (such as pneumonia) to which HIV/AIDS sufferers are vulnerable because of their condition. In explanation of this issue, in a recent opinion rendered by United States District Court Judge, a cruise line was required to provide dialysis to a crewmember, even though the treatment would not cure the condition but would merely keep him alive. This decision might well be extended to crewmembers who are suffering from HIV/AIDS, and require treatment to prevent death. Concealment of the condition, however, will give the shipowner a defence to a claim for maintenance and cure in these circumstances.

There is no definitive answer as to whether maintenance and cure is owed and at what point it can be discontinued. Each HIV/AIDS case has unique aspects. The treatment of AIDS/HIV is constantly evolving. Improvements in the treatment of HIV/AIDS may result in a "cure" and the employer may be required to treat the crewmember until he is cured. This could be the case for a crewmember who develops HIV/AIDS during his employment (subject to the wilful misconduct point below) and possibly also where the crewmember is known to have HIV/AIDS before his employment and his condition subsequently deteriorates.

Wilful Misconduct

In another recent decision¹, a different court held that a seaman who contracted the HIV virus while in the employ of a cruise vessel was not entitled to maintenance and cure. He acknowledged that he had been sexually promiscuous with both men and women while employed and had had unprotected sex. These sexual contacts were found to be vices or wilful misconduct not in the service of the vessel.

Unseaworthiness

In addition to maintenance and cure or wages, a seaman and/or his heirs have the right to sue for general damages for injury or death caused as a result of an unseaworthy vessel. The unseaworthiness doctrine has evolved to require that a vessel, its gear and appurtenances be "reasonably fit for their intended use". Liability for unseaworthiness is not based on forseeability, but an absolute duty, irrespective of actual knowledge or control or the degree of diligence exercised by the shipowner or his agents.

It is not clear, from current legislation, whether an HIV/AIDS-infected seaman can render a vessel "unseaworthy". However, if a seaman can prove that he contracted AIDS or the HIV virus from another seaman, or perhaps even a passenger whilst working aboard a vessel, he may well be able to assert a claim for unseaworthiness. Of course, given the long incubation period for the virus, this could be difficult to prove.

A shipowner might have several possible defences to an unseaworthiness claim for HIV/AIDS infection. If the virus were contracted through intravenous drug use, heterosexual or homosexual sex with a passenger or crewmember, the shipowner could argue that the claimant "assumed the risk". However, if for example, the shipowner knowingly permitted the used of drugs or allowed sex between crew and passengers (by failing to address it in company policy or by "turning a blind eye"), this defence might be deemed to have been waived.

Jones Act

Seamen have a statutory right to sue their employers for negligence under the Jones Act. The test for imposing liability under the Jones Act is whether the employer’s negligence played a part in the seaman’s injury. This doctrine has even been extended to a case where the seaman’s only injury was the fear of getting cancer after exposure to chemicals². Following this train of logic, it is possible that this ruling could be applied to a situation where a seaman develops a fear of contracting AIDS due to contact with a colleague who was found to have HIV/AIDS.

The increase in the number of AIDS cases around the world means that shipowners should be aware of the potential for claims under the Jones Act or for unseaworthiness. There are, however, some sensible steps that a shipowner can consider in order to minimise exposure:

i) implement an education campaign to alert crewmembers to the risk of contracting HIV/AIDS and inform them of how the disease is transmitted.

ii) publicise and enforce a strict rule against the use of illegal drugs.

iii) consider whether to ban sexual relations between crew and/or between crew and passengers.

iv) ensure employees such as doctors and nurses are provided with proper protective clothing and equipment and are given details of crewmembers who are known to have HIV or AIDS.

If a crewmember contracts HIV/AIDS via sex, drug use, or the failure to follow recommended practice or use of proper equipment, the "assumption of risk" defence is more likely to succeed if the shipowner has taken the steps set out above

¹ Bynum v. Premier Cruise Lines, Ltd., 1994 AMC 2185 (M.D. Fla. 1994)
² Hagerty v L.L. Marine Services, 788 F.2nd 315 (5th Cir. 1986)