In United States (US) maritime law, there exists a provision known as Maintenance and Cure whereby seamen (crew members) are entitled to claim expenses from their employers to cover their day-to-day living expenditures and medical costs in the event of illness or injury. This provision was described by Frank Sioli, director and attorney at SiloAlexanderPino (SAP), at a recent Superyacht Claims Adjustment Association (SCAA) meeting as being “One of the most powerful doctrines in maritime law”.
Whether it be flu, physical injury or any number of alternative ailments, crew members in US navigable waters, or on board a US affiliated superyacht (flagged or otherwise), are entitled to maintenance and cure. Maintenance payments may include room and board, mortgage payment, home owner’s insurance, taxes, hotel fees and so on - luxury expenditures, such as satellite television and internet, are not included. The cure element of the provision relates to all reasonable and medically necessary expenditures, stopping short of maximal medical care and maximal medical improvement.
“There is also the risk of claims for punitive damages in instances where there has been negligence or the wilful and wanting withholding of maintenance and cure by an employer,” explains Kristina Alexander of SAP.
At the SCAA meeting, Sioli outlined an interesting case in which a stewardess became injured as a result of her work. After lifting a heavy object and injuring her elbows the stewardess was sent ashore to receive treatment, she was subsequently discharged with a sling. However, upon being discharged, the stewardess requested to stay on board rather than travel home, neglected to wear the sling or rest appropriately and, even after being offered light duties, continued to aggravate her injury. Ultimately the stewardess was diagnosed with lateral epicondylitis, commonly known as tennis elbow, and successfully sued her employer for failure to provide proper and adequate medical care.
Even after the stewardess refused to cooperate with the orders of the medical professionals and the captain on board, the employer was not relieved of its responsibility to provide adequate maintenance and cure. “Maritime law is unique in that it treats, like no other kind of law, the relationship between employer and seamen as being ex loco parentis,” says Sioli. “Meaning you are standing in the shoes of a parent and that you are supposed to treat the seamen as such. When you are looking at a potential claim, the correct test is, how would I treat my own child?” This may include disallowing the crew member from re-joining the vessel until fully healed.
Unlike other laws, there is no provision within maintenance and cure for comparative negligence. Even if the crew member was doing something they knew would likely cause them damage, the employer would still be responsible for adequate maintenance and care payments. In order for an employer to divorce itself from responsibility for maintenance and cure the injury would have to occur as a result of wilful and wanton reckless conduct on behalf of the crew member.
It is important to note that the maintenance and cure provision does not only have a direct effect on US flagged vessels, it also effects vessels in the navigable waters of the US, as well as vessels that are in some way affiliated to the United States, such as being owned through a US company. “If there is a nexus that connects the vessel to the United States then it will be liable for maintenance and cure,” concludes Sioli.
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