Can I Get My Maintenance Rate Increased?

If you have been injured while working on a vessel, you may wonder if you can get your maintenance rate increased from what is set forth in your employment contact.  The short answer is “yes” in many circumstances.  For example, what if your employer’s contract set forth a maintenance rate of only $30 per day but your actual room-and-board expenses were $70 per day.  A seaman or fisherman is entitled to actual reasonable room-and-board expenses while recovering from an injury or illness on land in most situations.

“The rule of maintenance and cure is simple and broad: a seaman is entitled to maintenance and cure for any injury or illness that occurs or becomes aggravated while he is serving the ship.” Messier v. Bouchard Transp., 688 F.3d 78, 83-84 (2d Cir. 2012) (emphasis in original).  In Dean v. Fishing Co. of Alaska, Inc., 177 Wn.2d 399 (2013), the Washington State Supreme Court summarized the law of maintenance and cure:

Under general maritime law, a shipowner has a duty to provide maintenance and cure to a seaman who “becomes ill or is injured while in the service of the ship.” Vella v. Ford Motor Co., 421 U.S. 1, 3, 95 S. Ct. 1381, 43 L. Ed. 2d 682 (1975); Clausen v. Icicle Seafoods, Inc., 174 Wn.2d 70, 76, 272 P.3d 827 (2012). “Maintenance” is a per diem living allowance for food and lodging comparable to what the seaman is entitled to while at sea; “cure” is payment of medical expenses incurred in treating the seaman’s injury or illness. Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 528, 58 S. Ct. 651, 82 L. Ed. 993 (1938); Clausen, 174 Wn.2d at 76. The shipowner’s duty to pay maintenance and cure “continues until the seaman . . . reaches the point of maximum medical recovery.” 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 6-28, at 393 (4th ed. 2004) (citing Farrell v. United States, 336 U.S. 511, 522-23, 69 S. Ct. 707, 93 L. Ed. 850 (1949)). “‘Maximum medical cure’ is reached when the seaman recovers from the injury, the condition permanently stabilizes or cannot be improved further.” McMillan v. Tug Jane A. Bouchard, 885 F. Supp. 452, 459 (E.D.N.Y. 1995). . .

[The United States Supreme Court] emphasized that a shipowner’s duty to pay maintenance and cure is “‘broad,’” Vella, 421 U.S. at 4 (quoting Aguilar v. Standard Oil Co. of N.J., 318 U.S. 724, 730, 63 S. Ct. 930, 87 L. Ed. 1107 (1943)), and should be liberally interpreted “‘for the benefit and protection of seamen who are [the admiralty courts’] wards,’” Vaughan v. Atkinson, 369 U.S. 527, 531-32, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962) (quoting Taylor, 303 U.S. at 529). . .
A shipowner’s duty to pay maintenance and cure is so broad that it arises regardless of the shipowner’s fault or negligence or the seaman’s contributory fault. Aguilar, 318 U.S. at 730-31. There are very few defenses a shipowner can raise to avoid paying maintenance and cure.

177 Wn.2d at 405-408.  The duty “does not rest upon negligence or culpability on the part of the owner or master, nor is it restricted to those cases where the seaman’s employment is the cause of the injury or illness.” Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 527-528, 58 S. Ct. 651, 82 L. Ed. 993 (1938) (internal citations omitted); Siders v. Ohio River Company, 351 F. Supp. 987, 992 (W.D. Pa. 1970) (maintenance and cure is an “obligation on the part of the shipowner [which] is deep-rooted in maritime law and is an implied term of the contract for maritime employment.”) (citing McCorpen v. Central Gulf Steamship Corporation, 396 F.2d 547 (5th Cir. 1968)).

The law of seamen has evolved to confer a strong bias in favor of an injured seaman with respect to maintenance and cure claims. A shipowner’s duty to pay maintenance and cure is “virtually automatic.” Dean v. Fishing Company of Alaska, supra at 409 (citing Baucom v. Sisco Stevedoring, LLC, 506 F. Supp. 2d 1064, 1073 (S.D. Ala. 2007)); see also, Vella v. Ford Motor Co., 421 U.S. 1, 4, 95 S. Ct. 1381, 43 L. Ed. 2d 682, 1975 AMC 563 (1975) (Maintenance and cure serve to provide seamen “essential certainty of protection against the ravages of illness and injury.”). “Payments must be promptly made, at a time contemporaneous to the illness or injury.” Crooks v. United States, 459 F.2d 631, 635 (9th Cir. 1972); see also Black v. Red Star Towing & Transp. Co., 860 F.2d 30, 33, 1989 AMC 1 (2d Cir. 1988) (“maritime law policy . . . calls for prompt and voluntary payment of maintenance”). In Vaughan v. Atkinson, 369 U.S. 527 (1962), a leading case regarding maintenance and cure, the U.S. Supreme Court explicitly held that all ambiguities with respect to entitlement must be resolved in the seaman’s favor:

[T]he shipowner’s liability for maintenance and cure [is] among ‘the most pervasive’ of all and [it is] not to be defeated by restrictive distinctions nor ‘narrowly confined.’ When there are ambiguities or doubts, they are resolved in favor of the seaman.

369 U.S. at 532 (internal citations omitted, emphasis supplied).[1] Similarly:

It has been the merit of the seaman’s right to maintenance and cure that it is so inclusive as to be relatively simple, and can be understood and administered without technical considerations. It has few exceptions or conditions to stir contentions, cause delays, and invite litigations.

Farrell v. United States, 336 U.S. 511, 516, 69 S. Ct. 707, 93 L. Ed. 850 (1949). The Washington State Supreme Court has held that “[i]n order to ensure that injured seamen were protected, the Vaughan Court instructed that when there are ambiguities or doubts related to maintenance and cure, they are resolved in favor of the seaman.” Dean, supra at 408 (internal quotations omitted). Maintenance and cure are described as “among the most pervasive incidents of the responsibility anciently imposed upon shipowners” and should not be overcome “by restrictive and artificial distinctions . . . . If leeway is to be given in either direction, all the considerations which brought the liability into being dictate it should be in the sailor’s behalf.” Aguilar, 318 U.S. at 730-735; see also Messier, 688 F.3d at 83 (“No matter how the doctrine is formulated, one thing is clear—the duty of maintenance and cure exists for the benefit of seamen. Accordingly, the Supreme Court instructs us to be ‘liberal in interpreting this duty for the benefit and protection of seamen who are [the admiralty courts’] wards.’”) (quoting Vaughan, 369 U.S. at 531-32).

The rule requiring ambiguities and doubts to be resolved in favor of the seaman applies equally to ambiguities with respect to the facts and ambiguities with respect to the law. See Gaspard v. Taylor Diving & Salvage Co., 649 F.2d 372, 374 n.2 (5th Cir. 1981) (“[A]mbiguities or doubts in the application of the law of maintenance and cure are resolved in favor of the seaman.”) (emphasis added); Dean, supra (factual dispute over whether seaman had reached maximum cure must be resolved in seaman’s favor pending trial).

Maintenance is a daily living allowance intended to cover the seaman’s “room and board expenses incurred while the seaman is recovering from the illness or injury.” Berg v. Fourth Shipmor Assocs., 82 F.3d 307, 309 (9th Cir. 1996). The maintenance rate is based on a seaman’s actual cost of room and board. See Hall v. Noble Drilling (U.S.) Inc., 242 F.3d 582, 589 (5th Cir. 2001); Diggs v. New York Marine Towing, 2008 U.S. Dist. LEXIS 56691 (E.D.N.Y. 2008); Ritchie v. Grimm, 724 F. Supp. 59, 61 (E.D.N.Y. 1989). In Cortes v. Baltimore Insular Line, 287 U.S. 367, 77 L. Ed. 368, 53 S. Ct. 173 (1932), the U.S. Supreme Court stated: “If the seaman has been able to procure his maintenance and cure out of his own or his friends’ money, his remedy is for the outlay”. Id. at 373-74 (emphasis added). In Hall, supra, the Fifth Circuit explained:

[T]he determination of maintenance is also complicated by the fact that little, if any, lodging on land is truly equivalent to quarters on a vessel; that, as in this case, some seamen have existing accommodations on land; and that, as a practical matter, seamen have historically lacked the resources to present detailed proof in suits for maintenance and cure.

Understanding these practical and conceptual difficulties, courts have not required literal equivalence of facilities onshore and in the vessel. Instead, the reference to a seaman’s shipboard food and lodging serves to define the amount of maintenance as no more and no less than the reasonable costs of subsistence the seaman has incurred while recuperating on land. . . . [M]aintenance awards should depend on the reasonable cost of food and lodging for a seaman living alone in the seaman’s locality.

Id. at 587-88. The Hall court awarded maintenance based on actual living expenses, noting that maintenance is “an obligation of the shipowner to ensure that the seaman can afford food and lodging.” Id. at 588.

“A seaman’s burden of production in establishing the value of maintenance is feather light: his own testimony as to reasonable cost of room and board in the community where he is living is sufficient to support an award.” Yelverton v. Mobile Labs., Inc., 782 F.2d 555, 558 (5th Cir. 1986) (citing Curry v. Fluor Drilling Services, Inc., 715 F.2d 893 (5th Cir. 1983)); see also Barnes v. Sea Haw. Rafting, LLC, 2013 U.S. Dist. LEXIS 162921 (D. Haw. 2013); Owens v. Abdon Callais Offshore, LLC, No. 10-3296, 2011 U.S. Dist. LEXIS 66058, at *16-17 (E.D. La. June 14, 2011); Sharp v. Stokes Towing Co., 989 F. Supp. 791, 796 (N.D. Miss. 1998). In Curry, supra, the Fifth Circuit held:

A seaman makes out a prima facie case on maintenance when he proves “the actual living expenditures which he found necessary to incur during his convalescence.” Thomas v. Secretary of Health and Human Services, 659 F.2d 8, 14 (1st Cir.1981). The seaman’s own testimony as to the reasonable cost of room and board in the community where he is living is adequate to support an award of maintenance. Morel v. Sabine Towing & Transportation Co., Inc., 669 F.2d 345, 347 (5th Cir.1982).

715 F.2d at 896. McNeil v. Jantran, Inc., 258 F. Supp. 2d 926 (W.D. Ark. 2003) held:

To make out a prima facie case on the maintenance rate question, the plaintiff must present evidence of his actual and necessary living expenses during convalescence. Once he has done so, the burden shifts to the defendant shipowner to produce some evidence in rebuttal. Clifford v. Mt. Vernon Barge Serv., Inc., 127 F. Supp.2d 1055, 1057 (S.D. Ind. 1999). See Miller v. Canal Barge Co., Inc., 2000 U.S. Dist. LEXIS 20145, 2000 WL 33389203 (E.D. La. 2000) (plaintiff’s affidavit and receipts of actual living expenses sufficient to establish prima facie showing of appropriate maintenance rate.) Plaintiff has made out a prima facie case as to the rate of maintenance by submitting an affidavit itemizing his monthly expenses which total $745.

Id. at 931-32 (emphasis added); see also Incandela v. Am. Dredging Co., 659 F.2d 11, 14 (2d Cir. 1981) (“Once plaintiff’s testimony was in the record, a prima facie case for the $26.80 rate was made out and the burden shifted to the defendant to demonstrate that plaintiff’s actual expenditures were excessive. . .”). In Sabow v. American Seafoods Company, no. 2:16-cv-00111-JCC, Judge Coughenour of the Western District of Washington expressly adopted the burden-shifting framework set forth in Incandela, supra.

Courts have repeatedly recognized that on pre-trial motions related to maintenance and cure, issues of fact are resolved against the employer, since the employer bears the burden of proof at trial. See Dean, supra; Hedges v. Foss Mar. Co., 2015 U.S. Dist. LEXIS 10510 (W.D. Wash. 2015); Gouma v. Trident Seafoods, Inc., 2008 AMC 863 (W.D. Wa. 2008); Sefcik v. Ocean Pride Alaska, Inc., 844 F. Supp. 1372, 1994 AMC 2192 (D. Alaska 1993). In Dean, supra, a unanimous Washington State Supreme Court held, “[a]fter a seaman has proved his initial entitlement to maintenance and cure, the burden shifts to the shipowner to prove that maximum cure has been reached.” Dean, 177 Wn.2d at 409 (citing Tuyen Thanh Mai, 160 Wn. App. at 539).  Just like in Dean, this case involves ongoing benefits, and initial entitlement is not at issue.

In Dean, the vessel owner terminated benefits when one doctor stated the seaman had reached maximum cure, but the seaman’s treating doctor recommended additional medical treatment. Applying Gouma v. Trident Seafoods, Inc., supra, and Sefcik v. Ocean Pride Alaska, Inc., supra, the Dean court held that because all ambiguities must be resolved in the seaman’s favor, issues of fact related to maintenance and cure must be resolved in the seaman’s favor pending trial.  The Dean court reasoned that allowing a vessel owner to unilaterally deny payment of benefits would improperly “[place] the adjudicatory power of the court in the hands of [the vessel owner].” Id. at 415. The court held that prior to trial, the court: “should order the shipowner to reinstate such payments unless the shipowner can provide unequivocal evidence that the seaman has reached maximum cure.” Id. at 415.

In Gouma v. Trident Seafoods, Inc., supra, followed by Dean, the court explained the rationale for placing the burden of proof on the employer in pretrial motions:

Plaintiff is entitled to a presumptive continuance of maintenance and cure payments. . . . This Court is not prepared to depart from the Vaughan standard of resolving all doubts concerning maintenance and cure in the seaman’s favor to that extent. Defendants have cited no opinion from the Ninth Circuit or the Supreme Court indicating that this historic doctrine has fallen to that level of disfavor.

Similarly, Defendants may not unilaterally decide, based on the opinion of their own physician, that a seaman has reached maximum medical cure. At the very least, it violates the summary judgment standard which they themselves are championing – in the face of genuine disputes of material fact regarding the extent of Plaintiff’s cure, Defendants are not entitled to summarily (and unilaterally) determine the question in their own favor.

Gouma, supra, at *5-7 (emphasis added); see also Connors, 2005 AMC 2154 (ordering increased maintenance rate where seaman “put forth evidence supporting each element of his maintenance and cure claim”).

In Sabow v. American Seafoods, No. C16-0111-JCC (W.D. Wash. May 24, 2016) (Coughenour, J.), the court considered a seaman’s request for increased maintenance to cover his actual reasonable room and board expenses. The order awarding increased maintenance states:

Traditionally speaking, a seaman is entitled to food and lodging of the kind and quality he or she would receive aboard ship. Gardiner, 786 F.2d at 946. However, modern courts have recognized the “practical and conceptual difficulties” of tying maintenance solely to the conditions on board. Hall v. Noble Drilling, 242 F.3d 582, 587 (5th Cir. 2001). When determining the proper rate of maintenance, Judge Robart considered “what is reasonable in the seaman’s locale and not simply what would cover the literal equivalent of conditions aboard the ship.” Walsh v. F/V Arctic Baruna I, 2006 WL 2289263 at *3 (W.D. Wash. Aug. 8, 2006) (citing Hall). This Court agrees that this is the proper inquiry, given the ameliorative purpose of maintenance payments and the reality of the circumstances.

Judge Coughenour went on to adopt the burden-shifting approach set forth in Incandela v. Am. Dredging Co., 659 F.2d 11, 14 (2d Cir. 1981) for determining the maintenance rate:

Under this framework, a “seaman makes out a prima facie case on the maintenance rate question when he proves the actual living expenditures which he found it necessary to incur during his convalescence.” Incandela, 659 F.2d at 14. Once the seaman makes the proper showing, the burden shifts to the vessel owner to produce rebuttal evidence. Incandela, 659 F.2d at 14; Clifford, 127 F.Supp.2d at 1057.

Judge Coughenour noted: “a seaman’s burden of proof is minimal and typically consistent of his or her own testimony.” Id. (citing Yelverton v. Mobile Laboratories, Inc., 782 F.2d 555, 558 (5th Cir. 1986)).

Accordingly, if you are injured at sea and your employer is paying you less in maintenance than your actual room-and-board expenses, you should consult with an experienced maritime injury lawyer to determine if you are entitled to an increase in your maintenance rate during your recovery.

[1] The maritime rule that all ambiguities or doubts regarding entitlement to maintenance and cure are resolved in favor of the seaman has been cited dozens of times in the Ninth Circuit and is well-engrained in the general maritime law. See, e.g., Arctic Storm, Inc. v. Madrid, 2015 U.S. Dist. LEXIS 102323 (W.D. Wa. May 22, 2015) (“. . . ambiguities and doubts as to a shipowner’s liability for maintenance and cure are resolved in favor of the seaman.”); Barnes v. Sea Haw. Rafting, L.L.C., 16 F. Supp. 3d 1171, 1176 (D. Haw. 2014); Coastal Villages Pollock, L.L.C. v. Naufahu, 2014 U.S. Dist. 36242, 2014 A.M.C. 1326 (W.D. Wa. 2014); Barnes v. Sea Haw. Rafting, L.L.C., 983 F. Supp. 2d 1208, 1213 (D. Haw. 2013); Hansen v. F/V Spicy Lady, 2013 U.S. Dist. LEXIS 143462 (W.D. Wa. 2013); Bailon v. AACH Holding Co., 2013 U.S. Dist. LEXIS 26288 (S.D. Cal. 2013); Lee v. Metson Marine Servs., 2013 U.S. Dist. LEXIS 77 (D. Haw. 2013); Davis v. Icicle Seafoods, Inc., 2009 U.S. Dist. LEXIS 2686 (W.D. Wa. 2009); Gouma v. Trident Seafoods, Inc., 2008 U.S. Dist. LEXIS 108278, 2008 A.M.C. 863 (W.D. Wa. 2008); Mabre v. Wizard Fisheries, Inc., 2008 U.S. Dist. LEXIS 9985 (W.D. Wa. 2008).