U.S. - Pre-existing or Concealed Injuries and Conditions - the Duties and Obligations of Physicians and Jones Act Seamen towards the Shipowner

June 1999

(Sea Venture Volume 18)

There is no legal requirement in the United States for a shipowner employer to subject potential Jones Act seamen to pre-employment medical examinations. Should a shipowner decide to conduct pre-employment medical examination upon a potential future employee the shipowner has a non-delegable duty to have the physician it hires perform a competent examination. If the physician fails to do so and the seaman subsequently proves to have been unfit for duty and suffers injury as a result, the shipowner may be held to be vicariously liable to the seaman in respect of the physician’s failure.

There are distinct advantages, however, in conducting pre-employment medical examinations upon seamen, and not only in the U.S.. Most notably the shipowner will obtain a greater awareness of the seamen’s medical condition and capabilities. Furthermore, if the shipowner decides to conduct a pre-employment examination of a potential employee he is owed legal duties and obligations by both the physician and the seamen:

The duties and obligations of a physician towards the shipowner employer

In the U.S. (and to a similar extent in other jurisdictions) a physician retained as an independent contractor, owes the shipowner a duty of care. In particular, the physician is deemed to warrant that he will provide workmanlike services when conducting a pre-employment examination. This warranty requires him to perform his duties in a capable and non-negligent manner so as not to cause economic "injury" to a shipowner, most commonly by triggering the shipowner’s strict liability duty to pay maintenance and cure or pay a personal injury settlement or judgement. Within the context of physical examinations conducted by maritime physicians, the warranty is breached when the physician fails to examine a seaman properly or to certify him accurately for sea duty.

This duty is underlined by the recent decision of Ninth Circuit Court of Appeals in Sementilli v. Trinidad Corporation / Trinidad Corp v. Stephen Taus, M.D. in which it was held that:

1. A shipowner which hires seamen from a union hall is "particularly vulnerable and dependent upon the union designated physician to send it only seamen that are fit for duty at sea".

2. The relationship between shipowner and the physician (whose certification is necessary to send men to sea) is a "special" one, and imposes a duty on physicians to exercise reasonable care in certifying seamen.

3. It is good public policy to allow a shipowner to seek indemnity from a physician who negligently certifies a sub-standard seaman as "fit for duty" because the physician (not the shipowner) is in the best position to keep an unfit seamen off a vessel, and thus out of harm’s way.

4. A physician can be held liable to a shipowner for creating an unseaworthy shipboard "condition" i.e. supplying a vessel with an "unseaworthy" (i.e. physically unfit) seamen.

5. If a physician knew or should have known of a seaman’s pre-existing disabilities, and these disabilities are a substantial factor in bringing about a later shipboard injury, this is legally sufficient to establish that the physician’s negligent certification of the seaman was the proximate cause of the injuries/damages suffered by both the seaman and the shipowner.

6. When a shipowner sues a physician for sending an unfit seaman aboard a U.S. registered vessel, it is an abuse of discretion for the trial court to exclude the shipowner’s own medical expert testimony which may establish that a seaman’s pre-existing disabilities could have been a substantial factor in causing the injury or illness which arose on the vessel.

The language of this decision should prove beneficial to shipowners in future litigation involving Jones Act seamen.

The duties and obligations of Jones Act seamen towards a shipowner employer

A Jones Act seaman also has an obligation to his shipowner employer. In particular when a seaman undertakes a pre-employment physical examination he has an obligation not to conceal his true physical condition and in particular any pre-existing disabilities. The most frequently cited case in support of this is McCorpen v. Central Gulf Steamship Corporation¹ , although there have been several other court decisions to the same effect. The essential principles are:

a) a seaman’s right to maintenance and cure payments are barred by his "fraud". In this context, his "fraud" means concealment of a medical condition that he knows or should know is related to the injury or illness for which maintenance and cure is requested;

b) when a seamen is asked to disclose pertinent information during a pre-employment medical examination or interview and intentionally conceals or mis-represents material facts, he is not entitled to an award of maintenance and cure.

In cases where a shipowner believes that the seaman has deliberately and intentionally concealed his condition or the material facts the burden is upon the shipowner to prove that:

a) the plaintiff intentionally misrepresented or concealed medical facts;

b) the non-disclosed facts were material to the shipowner’s decision to hire the Plaintiff;

c) a connection exists between the withheld information and the pertinent injury or illness.

If the shipowner can establish the facts, the claimant seaman is unlikely to be able to recover maintenance and cure.

¹ 396 F. 2d 547 (5th Cir.1968)