Maintenance and Cure – Illness not Manifest

Image

In a recently published decision the United States Court of Appeals for the Second Circuit held that a shipowner is liable for the payment of maintenance and cure benefits to a seaman who had an undiagnosed medical condition while working aboard a vessel. This decision was reached even though the seaman in question did not show or complain of any symptoms during his time on board the ship: Messier v Bouchard Transportation (2nd Cir. July 20, 2012).

By way of background, the crewmember was employed by owners to work on one of their tug boats. Whilst he was working on board he injured his back and during examination of this injury it was discovered that he had a more serious condition. Testing continued after the crewmember left the vessel and the service of his employer and he was eventually diagnosed with B-cell lymphoma (a cancer of the blood).  He underwent treatment and subsequently  brought a claim against his employer for maintenance and cure.

Under the general maritime law there is a presumption in favour of a seaman’s entitlement to maintenance and cure and all doubts are to be resolved in his favour. However, it is the seaman who has the burden of proving that his illness either occurred, was aggravated or recurred while he was in the service of the vessel.

It is important to note that if the illness had been deemed to have been contracted or had become manifest while the seaman was receiving maintenance and cure benefits for the alleged back injury, he would also have had an entitlement to maintenance and cuer for the lymphoma as it would be deemed, via well-established case law, to have arisen while he was in the service of the vessel.

At trial the plaintiff’s doctor testified that the cancer had been present within the crewmember for several months prior to him leaving the service of the ship and this was accepted by the Court.

Having accepted this evidence, the 2nd Circuit held that despite the fact that the lymphoma was completely asymptomatic and had not “manifested” itself while the seaman was aboard the vessel, the plaintiff had demonstrated that the illness was present during his service and it had  therefore “occurred” while the seaman was aboard the ship.

The Second Circuit further noted that courts are to be liberal in interpreting the duty of maintenance and cure for the benefit and protection of seamen. When applying this principle to the case at hand the Court held that a seaman was entitled to maintenance and cure as long as his illness existed during the his service aboard his vessel, regardless of whether the seaman suffered symptoms during such service. 

The Court rejected the argument that the seaman’s illness or injury must manifest itself during the period of service aboard the vessel.  The Court labeled its approach the “occurrence rule.”

This “occurrence  rule” is a deviation from the historical rule that shipowners owe maintenance and cure only for illnesses that “manifest” while the seaman is in the service of the vessel. 

Such a decision could prove to be problematic when dealing with illnesses which evolve over a period of months or years and for which it is extremely difficult to say with absolute conviction when the illness first began.

Because ambiguities and doubts regarding a seaman’s entitlement to maintenance and cure are resolved in favour of the seaman any irresolution as to whether a condition existed while a seaman was in the service of a vessel will likely have to be resolved in the seaman’s favour.  The knock on effect of this decision is likely to be that shipowners will now receive more demands for maintenance and cure from seamen who left their ship without ever reporting any symptoms of illness or injury.

This decision is limited as binding precedent to Federal Courts in the Second Circuit however plaintiffs will no doubt cite this case as persuasive authority throughout the rest of the country and it remains to be seen if other circuits follow suit.