The coronavirus pandemic has caused significant disruption for employers who have faced difficult issues on how to deal with this issue. That is particularly the case for employers of seamen who have unique employment protections and rights.
The coronavirus raises some specific concerns for seamen and their employers. Perhaps more than any other type of employees, seamen, whether on offshore drilling rigs, inland tugs, or on ocean-going container ships, work in close quarters and cramped conditions where infection is more likely to spread.
The right of seamen to maintenance and cure
Under the general maritime law, a seaman has the right to receive maintenance (payment of living expenses) and cure (payment of medical expenses) in the event that the seaman is injured or falls sick while in the service of the ship. There are very limited defenses to the obligation to pay maintenance and cure.
The most common is the McCorpen defense, which relieves the seaman’s employer of the obligation to pay cure where the seaman has concealed a pre-existing condition about which the employer has asked and for which the seaman now seeks treatment. Therefore, if a seaman has a history of back problems and does not disclose that, he may not be entitled to maintenance and cure if he injures his back while in the service of the vessel.
How coronavirus cases might arise
One can imagine various coronavirus scenarios. If, for example, a member of the crew came onboard infected with the coronavirus, would that render the vessel unseaworthy? If so, would that be a breach of the ship owner’s non-delegable duty to provide a seaworthy vessel? Would failure to prevent the crew from becoming infected onboard constitute negligence?
If a seaman developed symptoms while at sea, that would almost certainly trigger maintenance and cure obligations. But what would be the position if the seaman knew (or suspected) that he was infected before working on the vessel? Would the McCorpen defense relieve the employer of cure obligations?
All of these issues would likely turn on a close examination of the facts. Perhaps the best action that employers can take is to follow the guidance of the CDC, ensure that any crew member who is suspected of infection is quarantined and/or evacuated, and keep detailed records of any employees who do fall sick while working on vessels.
Maintenance and cure recap
A useful survey of the law of maintenance and cure was recently provided by the United States District Court for the Eastern District of Louisiana in Mullen v. Daigle Towing Service. In Mullen, the plaintiff claimed that he had injured his back when he fell on the wet deck of a vessel. The employer denied the incident had ever occurred.
The court explained that maintenance and cure is a contractual form of compensation afforded by the general maritime law to seamen who fall ill or are injured while in the service of the vessel and this was payable regardless of fault. The court further noted: “this expansive remedy is not restricted to injuries or illnesses caused by employment.”
In the context of coronavirus infection and maintenance and cure obligations this is important to note: there is no need to show fault and it does not matter that contracting the illness might be unrelated to employment.
Finally, the court noted that the employer is not obligated immediately to make maintenance and cure. Rather, “it may conduct a reasonable investigation of the claim and require corroboration without subjecting itself to compensatory or punitive damages.” Compensatory damages may be recovered where failure to pay maintenance and cure was unreasonable; punitive damages may be recovered where failure to pay was willful and wanton.