Maritime Proctor Blog

It’s another #MaritimeMonday, so we will continue our discussion of maintenance and cure benefits.  Two weeks ago, we analyzed a recent decision from the Fifth Circuit – In re 4-K Marine, L.L.C.,[1] after a brief overview of the nuts and bolts of a maintenance and cure claim.  Last week we discussed defenses to a claim for maintenance and cure benefits.

Today, we focus on a framework articulated by the Fifth Circuit over 30 years ago – the three-tiered damages model for maintenance and cure.  Notably, the 4-K Marine panel reaffirmed the viability of that decision, Morales v. Garijak, Inc.[2]  At the top of that model is liability for punitive damages, blessed by the Supreme Court in Atlantic Sounding v. Townsend[3] in 2009. 

Background - Morales v. Garijak

In 1987, the Fifth Circuit Court of Appeals in Morales explained a three-tiered damages model available to a seaman in a maintenance and cure claim, as well as the evidence of conduct on the part of the employer the seaman was required to prove in order to receive those damages.[4]  In that case, the seaman was a shrimp boat crew member who slipped and fell on the deck.[5]  He worked the next two weeks on board the vessel, got off, picked up his paychecks, and went home.[6]  The testimony differed as to whether the seaman reported an injury from the fall or not: the seaman claimed he did, the president of the company said otherwise.[7]

Ultimately, the jury found the seaman injured himself in the slip and fall incident, and, as a consequence, the Jones Act employer owed the seaman maintenance and cure benefits.[8]  The jury also found the denial of benefits to be wrongful and arbitrary, and awarded $50,000.00 to the seaman for both compensatory damages and attorney’s fees.[9]

Fifth Circuit Analysis in Morales v. Garijak

The panel decision, authored by Judge Alvin B. Rubin and joined by Judges Jones and Garza (who concurred), began its analysis by noting two primary observations: (a) there is an escalating scale of liability in maintenance and cure claims and (b) the operative version of the Fifth Circuit Pattern Jury charge created much of the need for appellate review, as the PJC incorrectly stated the burden of proof for compensatory damages vis a vis punitive damages/attorney’s fees.[10]   

Essentially, if the Jones Act employer has a reasonable (but ultimately incorrect) basis for refusing to pay maintenance and cure, a seaman may only recover the actual maintenance and cure owed.[11]  The 4-K Marine panel held a refusal is reasonable if it has a “reasonable factual or legal basis,”[12] echoing the Garijak panels’ statement that “[a] failure to pay maintenance and cure due an injured seaman is reasonable if an diligent investigation indicates that the seaman’s claim is not legitimate or if the seaman does not submit medical reports to document his claim.”[13]

If, after investigating, the trier of fact determines the Jones Act employer unreasonably rejected the claim, and should have paid the seaman maintenance and cure, the Jones Act employer becomes liable not only for the maintenance and cure payments, but also for compensatory damages.[14] These are the damages that have resulted from the failure to pay, such as the aggravation of the seaman's condition, determined by the usual principles applied in tort cases to measure compensatory damages.[15]

If the Jones Act employer, in failing to pay maintenance and cure, has not only been unreasonable but has been more egregiously at fault, it can be held liable for punitive damages and attorneys fees. The Fifth Circuit described this higher degree of fault in such terms as callous and recalcitrant, arbitrary and capricious, or willful, callous and persistent.[16]  

Atlantic Sounding Co. v. Townsend

            The nebulous holding in the 1990 Supreme Court decision of Miles v. Apex Marine[17] created a circuit split on whether Jones Act seaman could recover punitive or exemplary damages for willful, wanton, or wrongful denial of a maintenance and cure claim.  In 1995, the Fifth Circuit held in an en banc decision – Guevera v. Maritime Overseas Corporation,[18]  In 2009, the Supreme Court answered that question in Atlantic Sounding Co. v. Townsend[19] – the Jones Act of 1920 did not alter common law claims or remedies available to seamen prior to 1920, meaning a seaman could recover punitive damages for a denial of maintenance and cure that was “willful and wanton” in nature.[20]

Thus, the question becomes: what is willful and wanton behavior?  Fifth Circuit case precedent contains some descriptions of behavior that are appropriately classified as "willful and wanton" so as to create liability for punitive damages.  The Fifth Circuit provides several examples in Morales v. Garijak.[21]  A decision would be “willful and wanton” if an employer (i) failed to conduct any investigation into the seaman's claim, (ii) withheld payments despite discovering through an investigation that the payments were due, (iii) rejected a documented claim because Plaintiff did not consult the Jones Act employer prior to seeking treatment, (iv) rejected a claim because the seaman filed suit, (v) withheld payments on a pre-textual basis or (vi) rejected a claim because the seaman refused to settle.[22]  

Atlantic Sounding[23] contains two (2) exemplar cases where the decisions, according to the majority of the Court, included some element of punitive damages: The City of Carlisle[24] and The Troop.[25]  In the former case, a sixteen year old apprentice on board the vessel suffered a fractured skull, but the Captain of the vessel refused to put ashore, instead choosing to keep at sea for six to seven weeks, and afterward making no arrangements for medical care for the injured boy.[26]  The latter case, The Troop, involved similar abhorrent behavior.  Therein, a seaman fell from a mast, breaking his arm and leg, but the Captain did not put ashore, and instead the seaman suffered with his injuries for the next thirty-six (36) days, thereafter undergoing painful surgery upon return to land.[27]  Based upon the foregoing, a seventh category may be added to the six (6) listed above: (vii) if the seaman suffers a personal injury but is wholly refused medical treatment by the Captain or other representatives of his employer.[28]  To best analyze these issues, it is most important to remember that "[e]ach case is to be evaluated on its own facts."[29]  As always, the seaman bears the burden of proof on his claim for punitive damages.[30] 

In summary, there is an escalating scale of liability for damages under the maintenance and cure claim.  Essentially, there are four (4) potential outcomes:

1. The Jury determines the Jones Act employer was not required to pay any additional maintenance and cure claim, aside from that which was already paid.[31]
2. The Jury determines the Jones Act employer should have paid further maintenance and cure benefits, but the denial of those benefits was reasonable. In that instance, the seaman may only recover the past and future maintenance and cure benefits owed.
3. The Jury determines the Jones Act employer should have paid further maintenance and cure benefits to the seaman, and that the denial of those additional benefits was unreasonable. In that instance, in addition to the past and future maintenance and cure benefits owed, the seaman may also recover compensatory damages.
4. The Jury determines the Jones Act employer should have paid further maintenance and cure benefits to the seaman, and that the denial of those additional benefits was not only unreasonable, but also willful, wanton, or wrongful. In that instance, the seaman may recover past and future maintenance and cure benefits, compensatory damages, punitive damages, and/or attorneys' fees.

[1] ____ F.3d ____, 2019 U.S. App. LEXIS 3095, 2019 WL 362452 (5^th Cir. January 30, 2019).

[2] 829 F.2d 1355 (5^th Cir. 1987)

[3] 557 U.S. 404 (2009).

[4] 829 F.2d 1355, 1358-59 (5^th Cir. 1987)

[5] 829 F.2d at 1357.

[6] Id. at 1357-58. 

[7] Id.

[8] 829 F.2d at 1358.

[9] 829 F.2d 1355, 1358.

[10] 829 F.2d at 1358-59.

[11] Id.

[12] ___ F.3d ___, 2019 U.S. App. LEXIS 3095 at *6.

[13] 829 F.2d at 1360.

[14] Id.

[15] 829 F.2d 1355, 1358-59 (5^th Cir. 1987).

[16] Morales, 829 F.2d at 1359.

[17] 498 U.S. 19 (1990).  It took almost 30 years of confusion before the Supreme Court resolved this issue as to maintenance and cure.  The Court still has not resolved the issue as to unseaworthiness, despite having multiple opportunities to do so.

[18] 59 F.3d 1496 (5^th Cir. 1995).

[19] 557 U.S. 404 (2009).

[20] 557 U.S. 404, 424.

[21] 829 F.2d 1355 (5^th Cir. 1987).

[22] Id. at 1360-61.

[23] 557 U.S. 404, 414 (2009).

[24] 39 F.807 (D.C. Ore. 1889).

[25] 118 F.769 (D.C. Wash. 1902)

[26] 39 F. 807 (D.C. Ore. 1889); see also Atlantic Sounding, 129 S.Ct. 2561, 2578 (Alito, J., dissenting).

[27] 118 F.769 (D.C. Wash. 1902); see also Atlantic Sounding, 129 S.Ct. 2561, 2578 (Alito, J., dissenting).

[28] 39 F.807; 118 F.769.

[29] Breese v. AWI, Inc., 823 F.2d 100, 103 (5^th Cir. 1987).

[30] Pelotto, 604 F.2d at 404.

[31] In theory, if there is an overpayment, the Jones Act employer can cross-claim against the seaman and try to recover the money paid.  However, these claims rarely happen, as the likelihood of recovering money from a seaman under these circumstances is about as likely as the University of Texas suddenly abandoning Burnt Orange and White in favor of either Maroon and White or Crimson and Cream as their school colors.