FAQs on maintenance

by Matthew H. Ammerman on December 27th, 2011

Maintenance and cure are ancient remedies owed to any seaman who is injured or whose illness manifests while in service of the ship. (fn. 1). Specifically, “maintenance” is payment an employer must make to a seaman for food and lodging during a seaman’s recuperation from a work injury. “Cure” is medical treatment. Maintenance and cure should terminate when the seaman reaches maximum cure (MMI).

These FAQs focus on maintenance.

Q. I am used to the Longshore Act. Is there a statute that says how much we have to pay in maintenance?

A. No, there is not a statute. A seaman’s legal right to maintenance and cure is based in “general maritime law,” which is federal common law decided by judges based on legal precedent. You look to U.S. Supreme Court and other federal court opinions in your jurisdiction for the law instead of a statute passed by Congress. The right to maintenance and cure is an implied term of any seaman’s employment that derives from general maritime law. (fn. 2).

As a practical matter, often judges look at maintenance rates prevailing in other cases as a starting point. But rates often vary on a case-by-case basis.

Q. How much should I pay per day in maintenance?

A. It depends. If there is a collective bargaining agreement or employment contract that addresses maintenance, pay what the contract says.

If there is no contract, your job is a little harder. Often judges look to what they consider the prevailing rate from other judge’s opinions in the same area. A seaman need not present evidence of the reasonable rate; a court may take judicial notice of the prevailing rate in the district. But be careful. Those opinions or prevailing rates may not apply to your seaman. A seaman’s actual expenses should be compared to any alleged prevailing rate. If his expenses are below the prevailing rate for decent lodging and food, he should be paid the rate based on his actual expenses.

Traditionally, a seaman’s employer was responsible for making payments so that the seaman could get food and lodging equivalent to that on the ship. However, more recently the Fifth Circuit recognized that “courts have not required literal equivalence of facilities onshore and in the vessel.” (fn. 3). Instead, the seaman is entitled to no more and no less than the “reasonable costs of subsistence the seaman has incurred while recuperating on land.” fn. 4. The seaman is not entitled to maintenance rate based on the mortgage for a lavish house and food costs, and, by the same token, he cannot be paid a paltry rate based on someone living in a tent foraging for food.

The Fifth Circuit describes the proper procedure in 2001 in the Hall v. Noble Drilling (U.S.), Inc. case (fn. 5):

  • The seaman has to provide proof of what he actually incurs for food and lodging. If he is, for example, living with his parents and not incurring any expense for food and lodging, he is not entitled to maintenance payments. The seaman’s burden is light. The seaman’s sworn statement as to his monthly food and lodging expenses may be adequate. (fn. 6).

  • Determine the reasonable rate of food and lodging for a single person in the seaman’s locale. You might consider awards of maintenance in similar cases or search the internet to obtain information from local YMCAs, reasonable long-term stay hotels, etc. to determine the cost of food and lodging for a single person.

  • Compare the seaman’s actually-incurred expenses to the reasonable rate.

  • If the seaman’s actual expenses for suitable housing and food are less than the reasonable daily rate you determined, then pay a maintenance rate based on his actual expenses. If the seaman’s actual expenses are more than the reasonable rate, then pay the reasonable rate.

Q. Can a seaman get maintenance payments based on how much he pays for food and lodging for his entire family?

A. No. A seaman may only recover the reasonable cost of his food and lodging -- not including his spouse or children. You may prorate his family’s food and lodging expenses if his individual expenditures cannot be proven, although the sum would be capped by reasonable cost of local food and lodging as discussed above. (fn. 7).

Q. What kind of proof of monthly expenses should I ask for?

A. The seaman must provide "evidence to the court that is sufficient to provide an evidentiary basis for the Court to estimate his actual costs." (fn. 8). You might ask for a copy of a recent rent or mortgage payment, utility bill (not including telephone), and a grocery bill and then prorate that amount for the seaman’s actual monthly expenses divided by 30 days. Compare to an online sampling of low-cost lodging in the seaman’s locale.

A seaman risks non-recovery if he presents no information concerning his actual expenses for food and lodging. (fn. 9). But the seaman’s burden to produce evidence to support the amount of maintenance is light. (fn. 10).

**Warning**: failure to pay maintenance without a valid reason may result in the employer being held liable for punitive damages if the failure to pay is considered “willful and wanton.” (fn. 11). If your prompt investigation shows this is likely a compensable injury, you might consider paying a modest maintenance rate until the seaman produces his evidence of monthly food and lodging expenses.

Q. What are some recent maintenance awards in the Fifth Circuit (Texas, Louisiana, or Mississippi)?

A. Historically courts have adopted standard maintenance rates with adjustments based on a seaman’s actual incurred living expenses, which may not exceed the hypothetical cost to live alone in the seaman’s hometown in modest housing.

This is a sampling of recent maintenance awards in the Fifth Circuit. Awards typically vary based on whether the seaman produced evidence of his actual expenses exceeding what the employer was already paying, and each case turns on its individual facts:

2011

  • $29.59 per day by Judge Vance in New Orleans, Louisiana (federal)(seaman’s actual expenses did not exceed reasonable amount). fn. 12.
  • $35 per day by Judge Lemmon in New Orleans, Louisiana, based on parties’ agreement (seaman’s actual average expenses were $41.66 per day). fn. 13.
  • $35 per day by Judge Fallon in New Orleans, Louisiana (federal). fn. 14.
  • $40 per day by Judge Africk in New Orleans, Louisiana (federal)(evidence of monthly expenses submitted). fn. 15.
  • $41.40 per day by Judge Barbier in New Orleans, Louisiana (evidence of monthly expenses submitted). fn. 16.

2010

  • $20 per day by Judge Fallon in New Orleans, Louisiana (federal). fn. 17.
  • $35 per day by Judge Fallon (evidence of monthly expenses presented). fn. 18.
  • $40 per day by Judge Haik in Lafayette, Louisiana (federal). fn. 19.
  • $40 per day by Judge Lemmon in New Orleans, Louisiana (evidence of monthly expenses presented). fn. 20.

This blog post is not intended as legal advice. Each case is unique and results may vary depending on the facts of each case and what jurisdiction you are in. Please consult an attorney to address your individual case if warranted.

References:

1. McCorpen v. Central Gulf S.S. Co., 396 F.2d 547, 548 (5th Cir. 1968).
2. Vaughan v. Atkinson, 369 U.S. 527, 532 (1962).
3. Hall v. Noble Drilling (U.S.) Inc., 242 F.3d 582, 587 (5th Cir. 2001).
4. Hall at 587 (emphasis added).
5. Id.
6. Yelverton v. Mobile Labs., Inc., 782 F.2d 555, 558 (5th Cir. 1986).
7. Hall at 589.
8. Hall at 590.
9. Harper v. Zapata Off-Shore Co., 741 F.2d 87, 91 (5th Cir.1984).
10. Hall at n. 16 citing Yelverton v. Mobile Laboratories, Inc., 782 F.2d 555, 558 (5th Cir.1986) (noting that “the evidence before the court often consists solely of the seaman's testimony”).
11. Atlantic Sounding Co., Inc. v. Townsend, 129 S.Ct. 2561 (2009).
12. Ledet v. Smith Marine Towing Corp., 2011 U.S. Dist. LEXIS 39842 (E.D. La. Apr. 4, 2011).
13. Naylor v. Atl. Sounding Co., 2011 U.S. Dist. LEXIS 71278 (E.D. La. June 30, 2011)(Judge Lemmon also references what she contends is the prevailing rate of $39.46 per day in the New Orleans area).
14. Nelton v. Cenac Towing Co., LLC, 2011 U.S. Dist. LEXIS 7129 (E.D. La. Jan. 24, 2011)
15. Borders v. Abdon Callais Offshore, LLC, 2011 U.S. Dist. LEXIS 56260 (E.D. La. Apr. 25, 2011).
16. Martin v. Abdon Callais Offshore, LLC, 2011 U.S. Dist. LEXIS 54970 (E.D. La. May 20, 2011)
17. Everett v. Atlantic Sounding Co., 2010 U.S. App. LEXIS 15131 (5th Cir. 2010).
18. Mayne v. Omega Protein, Inc., 370 Fed. Appx. 510, 516 (5th Cir. La. 2010).
19. Manderson v. Chet Morrison Constrs., Inc., 2010 U.S. Dist. LEXIS 89430 (W.D. La. 2010).
20. Mier v. Wood Towing, L.L.C., 2010 U.S. Dist. LEXIS 53324, 16-18 (E.D. La. May 28, 2010).


Posted in General Maritime Law: Maintenance    Tagged with Maintenance and cure, seaman, jones act, Townsend, rate

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