I.
The origins of the general maritime law remedy of maintenance and cure have dealt with extensively elsewhere, but it is of interest to note that Article VII of the Laws of Oleron required that the master take an ill seaman to shore and provide him lodging, candlelight and a woman to attend him. In this respect, perhaps the lot of the ancient but ill mariner may have been more pleasant than that of the modern counterpart. This ancient right to maintenance and cure is contractual in origin and not predicated on a showing of fault, negligence or unseaworthiness.
Since the obligation of maintenance (and cure) arises because the seaman is "in the service of the ship," it is not required that the injury or illness, or its cause, occur while he is on board his vessel. It is sufficient that the disabling condition arise while he is attached to the ship by virtue of his articles of employment. Almost any shoreside illness or injury, resulting from entertainment, relaxation or travel, occurring while the seaman is on shore leave but still in the service of the ship (unless it be a product of extraordinarily willful misconduct on the part of the seaman), gives rise to the obligations of maintenance and cure.The improvidence of the seaman and his special status as a "ward" of the admiralty court are the usual explanations given for the pervasiveness of the remedy. The policy reason underlying this special status was explained by Justice Story in Harden v. Gordon.
Seamen are by the peculiarity of the lives liable to sudden sickness from change of climate, exposure to perils, and exhausting labour. They are generally poor and friendless, and acquire habits of gross indulgence, carelessness, and improvidence. If some provision be not made for them in sickness at the expense of the ship, they must often in foreign ports suffer the accumulated evils of disease, and poverty, and sometimes perish from the want of suitable nourishment. Their common earnings in many instances are wholly inadequate to provide for the expenses of sickness; and if liable to be so applied, the great motives for good behavior might be ordinarily taken away by pleading their future as well as their past wages for the redemption of the debt.
While the Bowery and other slums may harbor many persons meeting this description, it is not a true portrait of the modern merchant mariner or others who have been held to be entitled to the remedy. It has been argued that this remedy has continued viable because it offers the federal judiciary the opportunity to be humane. In only a slightly different context, Justice Frankfurter, in dissent, accused his brethren of comic-book indulgence. My mentor, Judge Simon Sobeloff of the Fourth Circuit, often reported, however, that a federal judge does not necessarily have to judge harshly to be a judge.
The obligation to provide maintenance and cure extends until maximum cure has been obtained or the condition is diagnosed as incurable. In Brown v. Aggie & Millie, Inc., the Fifth Circuit was faced with the issue whether maintenance terminated when a seaman recovered sufficiently from his injury to return to work. The court responded:
Federal maritime law does not require an injured seaman to forfeit payments of either maintenance or cure if there remains a reasonable possibility that further treatment will aid in restoring him to his pre-accident condition. The fact that plaintiff's physical condition had improved enough to permit a return to work did not prevent the district court from believing, on the basis of the competent evidence before it, that further recovery was possible provided plaintiff receipted adequate medical attention.
The Supreme Court held in Vaughan v. Atkinsonthat the amount of maintenance owed the seaman should not be reduced by his earnings prior to reaching maximum cure. In Brown, it is not clear whether the seaman had actually returned to work and earned wages. Given the judicial restrictions placed on Vaughan, discussed in Part IV, infra, the questions may linger whether maintenance owed to a seaman may in some cases be offset by actual earnings. When a maintenance action is combined with a successfully prosecuted action under the Jones Act, the issue is of no importance because those earnings will be deducted from the award given for wage loss of the seaman prior to trial.
II.
From early times the amount of maintenance due an injured seaman was determined by the value of the food and lodging provided on the vessel. The Supreme Court has likewise defined maintenance as an amount "comparable" to the value of food and lodging on board the vessel. Because of an increase in the value of both the food and lodging provided on modern vessels and newer special purpose craft, the courts have struggled with the amount to be assessed, and the circuits are now in hopeless conflict over the formula for assessment.
In Incadela v. American Dredging Co., the shipping company had unilaterally and arbitrarily decided to pay maintenance at the rate of $13.50 per day. The plaintiff testified at trial that "his living expenses ... amounted to between $175 and $200 per week." The trial court held that he had not met "his burden of proving what the maintenance rate should be." Citing the Fifth Circuit opinion in Tate v. American Tugs, Inc., to the effect that the "maintenance rate should vary to reflect the quality of food and lodging on the ship and the cost of their equivalents on shore," the Second Circuit held:
In our view, 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 ... [T]o require every injured seaman seeking a court award for maintenance to go to the expenses of putting on expert witnesses before he will be permitted to recover more than a fixed nominal maintenance rate would be to place an unfair burden on those whom the idea of maintenance was designed to assist.
The court simply selected the mid-point between $175 and $200 ($187.50) and divided that by seven days to fix a daily rate of $26.80. The Fifth Circuit has likewise approved an award of maintenance at $20.00 per day based upon the seaman's testimony on the shore-side value of the food and lodging provided on the vessel in Morel v. Sabine Towing & Transp. Co..
Of course, the injured seaman may choose to call an expert witness in support of his maintenance claim. In Robinson v. Plimsoll Marine, Inc., the plaintiff produced an expert witness to testify that "meals and lodging costing $8 per day in 1969 would cost approximately $15 per day in 1978," and the trial court approved this formulation.
Recently, Judge Cire of the United States District Court for the Southern District of Texas in Wood v. Diamond M Drilling Co., approved a maintenance rate of $30 per day based on uncontroverted testimony of the plaintiff that the value of food and lodging aboard his vessel was breakfast $3.50, lunch $5, dinner $7 and lodging $15.
Obviously, the amount of maintenance payable is a question of fact; however, because of the potential liability a vessel owner may have for its failure to pay the proper amount, an argument can be made for the need for a fairly uniform rate applicable to all, at least in reasonably ascertainable geographic areas. With the statistical data now available, it would not be difficult to compute a maintenance amount based upon a 1957 rate of $8. The result would be a cost of living increase of approximately 300%. Basically this was the approach of the plaintif in Robinson v. Plimsoll Marine and of some commentators, but so far there has been little judicial and no industrial recognition of it.
The $8.00 rate for maintenance has existed in the Fifth Circuit for more than twenty years. To think, however, that a vessel owner can still satisfy its obligation by paying $56.00 a week despite the intervening inflation is absurd. Such payment actually leaves the vessel owner virtually defenseless to a charge of starvation of the seaman.
III.
Negligent failure to pay maintenance and to provide cure was recognized by the Supreme Court as an actionable tort in Cortes v. Baltimore Insular Lines. Justice Cardozo's timeless observations (meant obviously to satisfy the duty-legal cause scholars of that era) are nevertheless instructive:
We are thus brought to the inquiry whether "negligence" and "personal injury" are terms fittingly applied to the acts charged to the respondent. The case is helped by illustrations. Let us suppose the case of a seaman who is starved during the voyage is disregard of the duty of maintenance, with the result that his health is permanently impaired. There is little doubt that in the common speech of men he would be said to have suffered a personal injury, just as much as a child in an orphan's home who had been wronged in the same way. Let us suppose the case of a seaman slightly wounded through his own fault, but suffering grievous hurt thereafter as a consequence of septic poisoning brought about by lack of treatment. The common speech of men would give a like description to the wrong that he had suffered. The failure to provide maintenance or cure may be a personal injury or something else according to the consequences. 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, but personal injury there is none. If the default of the vessel and its officers has impaired his bodily or mental health, the damage to mind or body is none the less a personal injury because he may be free at his election to plead it in a different count. Nor is liability escaped by appeal to the distinction between acts of omission on the one hand and those of commission on the other. A division is sometimes drawn between the termination of a relation at a time when it is still executory or future, and its termination when performance has gone forward to such a point that abandonment of duty becomes an active agency of harm. The respondent is not helped though its treatment of the seaman be subjected to that test. Here performance was begun when the vessel started on her voyage with Santiago aboard and with care and cure cut off from him unless furnished by officers or crew. From that time forth withdrawal was impossible and abandonment a tort. Given a relation involving in its existence a duty of care irrespective of a contract, a tort may result as well from acts of omission as of commission in the fulfillment of the duty thus recognized by law.
We are told, however, that the personal injury from negligence covered by the statute must be given a narrow content, excluding starvation and malpractice, because for starvation and malpractice the seaman without an enabling act had a sufficient remedy before. The seaman may indeed have had such a remedy, but his personal representative had none if the wrong resulted in his death. While the seaman was still alive, his cause of action for personal injury created bythe statute may have overlapped his cause of action for breach of the maritime duty of maintenance and cure, just as it may have overlapped his cause of action for injury caused through an unseaworthy ship. In such circumstances it was his privilege, in so far as the causes of action covered the same ground, to denying to the words of the statute the breadth of meaning and operation that would normally belong to them, at all events when a consequence of the denial is to withhold any remedy whatever from dependent next of kin.
As of today, Central Gulf Steamship Corp. v. Sambula and Hopson v. Texaco, represent the apex of the obligation to provide adequate maintenance and cure to an injured seaman. In Sambula, the plaintiff while on authorized shore leave in Korea was set upon by hoodlums, sustaining a cut in the area of his right eye. He was left unconscious. An agent of the defendant took the seaman to a general practitioner instead of a specialist, even though the "profuse bleeding from [the] cut . . . [indicated] that the condition of the eye was such that even a layman could have recognized the possibility of internal eye damage." The court held the vessel owner liable for the subsequent loss of the seaman's eye based not only on the agent's negligence in selecting the physician but also on the negligence of the doctor.
In Hopson, the ship's captain hired a taxi in a foreign port for the purpose of transporting two of his seamen to the United States Consul to sign off the ship because they were too ill to continue the voyage. The driver of the cab negligently collided with a truck, killing one of the seamen and injuring the other. The Court held the cab driver was an "agent" of the ship, and recovery was permitted against the vessel owner for the negligence of the cab driver.
IV.
Once it was established that a cause of action for damages existed as a result of a failure to pay maintenance and provide cure, it was inevitable that an enterprising lawyer, seeking to recover unpaid maintenance where no other harm or damage could be shown would seek to recover attorney's fees as damages. Vaughan v. Atkinson was the case. The suit was brought in admiralty to recover maintenance and damages for the shipowner's failure to pay maintenance. There does not appear to have been a count seeking to recover damages under the Jones Act. The facts showed entitlement to approximately two years of unpaid maintenance. To secure the unpaid maintenance, the seaman agreed to pay a lawyer a 50% contingent fee. The shipowner's only investigation of the claim was to interrogate the Mast and Chief Engineer, who state that the libellant had never complained of any illness during his four months of service. The shipowner did not even bother to admit or deny the validity of the claim. The trial court was of the view that damages were not payable for attorney's fees incurred, but an award could be made when the failure to furnish maintenance and cure caused or aggravated the illness or other physical or mental suffering. The court found, however, that no damages for failure to furnish maintenance and cure had been shown and therefore allowed recovery only for unpaid maintenance. Even for the period for which maintenance was owed, the trial court reduced the award to the amount the seaman earned as a taxi driver. The Supreme Court reversed on both points, holding that attorney's fees were recoverable and maintenance was not to be offset by the seaman's earnings during the period of entitlement. While the Court described the shipowner's attitude as callous, it seems clear that the Court was attempting to adopt a prophylactic rule irrespective of the shipowner's denial rationale. The opinion makes no reference to any requirement of callousness on the shipowner's part. Instead, the Court based the award of attorney's fees on the admiralty court's power to grant equitable relief. The Court gave examples of equitable granting of attorney's fees such as preventing discrimination and wrongful seizure. The Court concluded that the recovery for failing to provide maintenance and cure "may also include 'necessary expenses.'"
Decisions from the lower courts after Vaughan have read a requirement into that decision that attorney's fees can be recovered only in the event of arbitrary, capricious or unreasonable conduct on the employer's part. An example is the recent decision from the Fifth Circuit, Gaspard v. Taylor Diving & Salvage Co. In Gaspard the court stated:
If an unreasonable failure to provide maintenance and cure aggravates the seaman's condition, the shipowner is liable not only for the increased medical expenses and maintenance that may be necessary, but also for the full tort damages that result. If the shipowner, in failing to provide maintenance and cure, has been callous and recalcitrant or arbitrary and capricious, reasonable attorney's fees may also be recovered.
In view of the interpretation given Vaughanby the lower courts, it is important to note that the dissenting opinion in Vaughan pointed out that there was no showing that the seaman returned to work because of any economic necessity: "So far as the record before us indicates, the petitioner's return to work was completely voluntary, and not the result of the shipowner's failure to pay maintenance." Thus, they concluded that the majority was holding as a matter of law that a seaman forced to bring suit to recover maintenance and cure is also entitled to recover for counsel fees.
The Supreme Court has not addressed the attorney's fees issue since its decision in Vaughan, and the time has come for a clarification of this important issue. If the standard is to be a subjective one based on the shipowner's reprehensible conduct, the Supreme Court should say so, foreclose the issue, and send the seaman hence without day.