Injured Seaman’s Duty to Mitigate His Damages

The employer of a seaman injured while serving the mission of the vessel is required to pay the seaman maintenance (and generally stated as an amount equal to his food and lodging) and cure (his medical expenses) until he has been declared by his treating physician as having reached maximum medical improvement (MMI).  The obligation to pay maintenance and cure is triggered when the seaman becomes ill or injured in the service of the vessel.  It is owed irrespective of whether he is injured due to negligence of the employer or unseaworthiness of the vessel or if he was injured due to the act of some third party.  Further, because seaman have historically been considered “wards of the court,” their right to receive maintenance and cure is closely guarded and the courts will order it paid in all but the most blatant circumstances, such as when a seaman is injured by his own intentional misconduct.  Frankly, it is rare when an employer is able to successfully defend a lawsuit brought by a seaman to recover maintenance and cure.  If it is a close call, the courts invariably will side with the seaman.

However, several federal judges in the Eastern District of Louisiana have recognized that seamen do have reciprocal obligations they must fulfill or risk losing receipt of the benefit.

In Parker v. Atlantic Sounding (heard before Judge Barbier), the seaman injured his hand when it was caught in a line while working on a dredge on the Mississippi River.  He was taken to a doctor, treated, and released to return to light duty.  Parker did return a couple of days later, and was given the job of sitting in the control room of the dredge and sweeping the galley.  He was paid his full wage.  He stayed for half a day and quit without notice, later claiming that he did not think it was safe for him to work because he was on medication, and that the sweeping conflicted with his doctor’s orders.  Atlantic Sounding petitioned the court for a ruling that Parker had forfeited his right to receive maintenance and cure when he walked off the job unannounced.  The court sided with Atlantic.

In his ruling Judge Barbier noted prior decisions which held that if a seaman is able to work and/or is working in spite of the fact that he may still be under a doctor’s care, then the employer should not be required to pay maintenance.  The rationale is based on the idea that the seaman has the duty to mitigate his damages, coupled with the premise that if the seaman if fit enough to work, then there is no reason to award him maintenance for periods when his sustenance is provided by others.

Parker argued that he was unemployed after he left Atlantic, and was not receiving sustenance from others.  Judge Barbier ruled that Parker had forfeited his right to maintenance because he failed to mitigate his losses by voluntarily quitting his job.  If he thought that he could not do the tasks he was assigned, Parker should have brought this to the attention of his supervisor, who could have found tasks compatible with his abilities.  The judge found that Atlantic did what it could to ensure that Parker could afford food and lodging by offering the same pay as before his injury, and accommodating his medical restrictions.  The court also made it clear that Atlantic’s duty to pay cure was not affected when Parker walked off the job, and it was still owed.

In Green v. Florida Marine Transporters, Inc., Judge Zainey was faced with a similar factual scenario.  There, Green claimed he injured his hand while working as a tankerman.  He filed suit and asked for a jury trial.  Green’s doctor released him to return to light duty work.  Florida gave him an office job and his regular pay while convalescing.  Green quit, and Florida moved the court for a ruling that he had forfeited his right to maintenance and cure.

Judge Zainey did not rule on the merits since this was a case to be tried to a jury, the issue would be more appropriately left to the jury to decide.  However, the judge stated that if the evidence shows Green quit the job “because he didn’t feel like working anymore,” then he forfeited his right to maintenance.  Florida also argued that Green forfeited his right to cure because he abandoned the care being provided by his physical therapist.  Again the judge did not rule, preferring to leave the issue to the jury.  But he stated that if Florida “can establish that Green’s failure to pursue the additional therapy compromised his reaching MMI or that by undergoing the additional therapy Green would have mitigated the problems he continues to have with his finger, then perhaps this will form the basis for forfeiting additional cure.”

More recently Judge Zainey denied a seaman maintenance.  In Domjan v. Setton Construction, the employer offered the injured seaman a suitable light duty office job following his surgery.  Domjan declined.  The employer argued that when he declined, he forfeited his right to maintenance.  The case went to trial, and the jury found that the employer offered the appropriate job, and when Domjan rejected it he forfeited his right to maintenance.  Domjan asked the judge to overturn the jury’s decision.  In refusing to do so, Judge Zainey stated that “plaintiff is correct that maintenance is owed until the seaman reaches MMI and does not terminate simply because he becomes medically fit for light duty.  Plaintiff’s maintenance payments were forfeited because the jury made a factual finding that he had been offered a light duty position that he could have taken, but that he declined without medical justification.”  He also noted that the job must be compatible with the seaman’s medical condition, and that the employer cannot absolve itself of its maintenance obligation by forcing the seaman back to work to the detriment of his health.

The lesson for employers to take from these cases is that in the appropriate situation, making light duty job accommodations for the injured employee can be to their benefit.  The employee is engaged in his work, and a positive company environment to which he continues to contribute.  The duty to pay maintenance ceases.  And should the injured employee quit for non-medical reasons, the likelihood is that the duty to pay maintenance will cease.  The offer of a light duty job should be made in writing to the employee, signed and dated by the employer and employee.  If refused, the reasons for refusal should be noted, and the document made part of the employee’s personnel file.