Cancer on board


#1

A crew member signed on board with proper good medical examination and D&A test.
After a month (contract is 4 months) he started having health problems, loosing weight, etc.

M.D. in next port recomended in writing to be repatriated on medical grouds.

Everything was properly logged.

After repatriation and medical treatment (operation) crew member died of cancer.
Since the sickness was first diagnosed on board, does the crew member family have right to claim for compensation from company?


#2

Dear Jolly-

I apologize for not responding sooner. The question you raise is a very interesting question and to fully answer it, I am going to post a series of posts since you cannot post one long post. I am going to begin by posting certain decided cases which, in my opinion, establish the precedent in answering your most interesting question.

The first case is:
[CENTER][B]JETHRO BYNUM, Plaintiff[/B]
v.
[B]PREMIER CRUISE LINES, LTD. , ET AL., Defendants[/B]
[/CENTER]
[CENTER]United States District Court, Middle District of Florida (Tampa Division),
[/CENTER]
[CENTER]June 2, 1994
[/CENTER]

[CENTER]No. 92-376-CIV-T-25B
[/CENTER]

[CENTER][B]PERSONAL INJURY - 141. Maintenance, Cure and Wages[/B]
[/CENTER]

A seaman with HIV, acknowledging prior male and female sexual contacts, incurred his disability from vices or willful misconduct and not in the service of the ship, and is not entitled to maintenance and cure.
Upon consideration of the Defendant, Premier Cruise Lines, Ltd., Inc.'s Motion for Summary Judgment and Defendant’s Renewal of Its Motion for Summary Judgment, the Court finds the following undisputed material facts:

A. Plaintiff entered into an employment arrangement with Onboard Pictures to act as a staff photographer on Defendant, Premier Cruise Lines, Ltd., Inc.'s Vessel, the S/S [I]Royale.[/I]

B. Pursuant to the employment agreement with Onboard Pictures, Plaintiff submitted to a pre-employment physical examination, which included a blood test. The physical took place on November 3, 1988.

C. Plaintiff began his employment on Defendant Premier’s vessel, the [I]Royale[/I] on November 4, 1988.

D. The Plaintiff executed a written employment agreement with Defendant, Onboard Pictures on November 7, 1988.

E. On November 11, 1988, Plaintiff was notified that the pre-employment physical disclosed that he had been infected with the HIV virus.

F. Plaintiff believes that he contracted the HIV virus through sexual conduct prior to November 3, 1988 and lists several sexual partners, both male and female. Plaintiff has never injected drugs intravenously.

G. Plaintiff worked aboard the [I]Royale[/I] in 1985 and 1986 in a similar capacity pursuant to a similar arrangement with Defendant Onboard. In 1988, he made two trips aboard the [I]Royale[/I] before he was notified of the results of the pre-employment physical.

Summary Judgments should be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the Affidavits, if any, show that there is no genuine issue as to any material fact.“ [I]Celotex Corp. v. Catrett[/I], 477 U.S. 317, 322 (1986). “Summary Judgment will not lie if the dispute about a fact is “genuine“, that is if the evidence is such that a reasonable jury could return a verdict for a non-moving party.“ [I]Anderson v. Liberty Lobby, Inc.[/I], 477 U.S. 242 (1986).

In [I]Aguilar v. Standard Oil Co. of New Jersey[/I], 318 U.S. 724, 730-31,1943 AMC 451 , 456-57 (1943), the Court stated (citations and footnotes omitted) “Among the most pervasive incidents of the responsibility anciently imposed upon a shipowner for the health and security of sailors was liability for the maintenance and cure of seamen becoming ill or injured during the period of their service,. this obligation has been recognized consistently as an implied provision in contracts of marine employment. the liability, unlike that for indemnity or that later created by the Jones Act, in no sense is predicated on the fault or negligence of the shipowner. Whether by traditional standards he is or is not responsible for the injury or sickness, he is liable for the expense of curing it as an incident of the marine employer-employee relationship. So broad is the shipowner’s obligation that negligence or acts short of culpable misconduct on the seaman’s part will not relieve him of the responsibility. Only some willful misbehavior or deliberate act of indiscretion suffices to deprive the seaman of his protection.

The traditional instances are venereal disease and injuries received as a result of intoxication, though on occasion the latter has been qualified in recognition of a classic predisposition of sailors ashore“. In [I]Zambrano v. Moore-McCormack Lines, Inc.[/I], 1942 AMC 1517 , 1519-20 , 131 F.2d 537, 539 (5 Cir. 1942), the Court held that the exception to the “general rule of the maritime law that a seaman who falls sick during a voyage is entitled to maintenance and cure“ is the case where “the illness arises from his own vices or willful misconduct.“ To recover maintenance and cure, the seaman must also show “that his illness or injury occurred, was aggravated or manifested itself while he was in the service of his ship.“ [I]Stewart v. Waterman Steamship Corp.[/I], 1969 AMC 1649 , 1655 , 288 F.Supp. 629, 634 (E.D. La. 1968) (footnotes omitted) [I]aff’d[/I] 1969 AMC 1648 , 409 F.2d 1045 (5 Cir. 1969).

The undisputed facts clearly show that the injury did not occur or manifest itself while Plaintiff was in the service of the [I]Royale.[/I] Plaintiff was infected prior to November 3, 1988, the date of the pre-employment physical. Additionally, Plaintiff testified that he believes he was infected as a result of sexual activities occurring prior to November 3, 1988. His testimony is undisputed. Again, in [I]Zambrano[/I], the exception to the general rule which allows maintenance and cure is where the illness arose from “the vices or wilful misconduct“ of the seaman. Accordingly, it is ordered that the Defendant, Premier Cruise Lines, Ltd., Inc.'s Motion for Summary Judgment and renewal of its motion for Summary Judgment be, and the same are hereby granted.
M.D.Fla., 1994
Not Reported in F.Supp., 1994 WL 617067 (M.D.Fla.), 1994 A.M.C. 2185

Maritime Lawyer -Steve Gordon


#3

[U][B]The Second Case is divided in four parts because of its size:[/B][/U] 1 of 4
[CENTER]United States Court of Appeals, Second Circuit.
[/CENTER]
[CENTER]Willis E. RESSLER, Plaintiff-Appellant,
v.
STATES MARINE LINES, INC., Defendant-Appellee.
[/CENTER]
[CENTER]No. 721, Docket 73-2069.
[/CENTER]
[CENTER]Argued April 8, 1975.
Decided May 6, 1975.
Certiorari Denied Oct. 14, 1975.
See 96 S.Ct. 193.
[/CENTER]
Appeal was taken by a seaman from a judgment of the United States District Court for the Southern District of New York, Edward Weinfeld, J., after a verdict, which dismissed seaman’s claim for maintenance and cure, and, while finding that defendant’s negligence was responsible for loss of seaman’s eye and awarding substantial damages, made no separate award for loss of future earnings. The Court of Appeals, Friendly, Circuit Judge, held that seaman, who contracted gonorrhea after engaging in sexual intercourse in a foreign port, was not entitled to maintenance and cure and that evidence did not require an award for loss of future wages.

Before FRIENDLY and FEINBERG, Circuit Judges, and LASKER,[COLOR=blue]FN* District Judge.[/COLOR]
Of the United States District Court for the Southern District of New York, sitting by designation.
FRIENDLY, Circuit Judge:

Willis E. Ressler, plaintiff in this action for damages under § 33 of the Jones Act, 46 U.S.C. § 688, and for maintenance and cure under general maritime law, see Harden v. Gordon, 11 Fed.Cas. No. 6,047, p. 480 (C.C.D.Me.1823); Reed v. Canfield, 20 Fed.Cas. No. 11,641, p. 426 (C.D.D.Mass.1842),[COLOR=blue]FN1 obtained a job in July, 1967, as a bedroom steward on defendant’s vessel, the S.S. Steel Architect. Plaintiff was then twenty and his voyage on that vessel was his first trip at sea. About a month into the voyage, after calling at several Asian ports, the ship docked for ten days at Bangkok, Thailand. There Ressler engaged in sexual intercourse on two occasions, allegedly for the first time. On the eastbound voyage he developed a discharge due to gonorrhea, a danger from engaging in intercourse under such circumstances of which he claimed to have been unaware. The first officer administered an antibiotic; there was a conflict of evidence as to how carefully the officer had warned Ressler about washing his hands after urinating.FN2 When the Steel Architect reached Honolulu on September 15, Ressler received treatment for gonorrhea at a United States Public Health Service Hospital and later at an Army Hospital. The ship, with Ressler aboard, departed Hawaii for the Panama Canal on September 19. Several days later, his right eye became sore and swollen. He brought this condition to the attention of the ship’s officer who applied acromycin ointment and washed the eye out with boric acid, but there was evidence from which the jury permissibly concluded that more should have been done. On arrival at Panama on October 1, Ressler was admitted to Gorgas Hospital where the diagnosis was ‘conjunctivitis, right eye, secondary to Neiserra gonorrhea, corneal ulceration with perforation.’ After twenty days he was discharged to outpatient status. Defendant paid maintenance and cure until April 20, 1968. On September 30, 1968 a corneal transplant operation was performed at the Public Health Service Hospital at New Orleans; unhappily the operation was not successful and Ressler has no useful vision in his right eye. Thereafter he was hospitalized again but refused further surgery. The eye developed secondary glaucoma, which has to be controlled by drops.[/COLOR]

[COLOR=blue]FN1. In his original complaint Ressler stated a third cause of action against the United States under the Federal Tort Claims Act, [/COLOR]28 U.S.C. § 2671 et seq., for alleged failure to have rendered him appropriate medical treatment. On unopposed motion of the United States under Fed.R.Civ.P. 12(b), the action against it was dismissed since plaintiff had failed to file a claim with the appropriate federal agency prior to commencing the action as 28 U.S.C. § 2675(a) requires.

[COLOR=blue]FN2. The first officer testified by deposition that he had instructed Ressler to wash his hands carefully. Ressler denied this, although he did admit that the first officer had told him to ‘try to keep clean.’
[/COLOR]
Ressler claimed that, as a result of this impairment of his vision, he had experienced difficulty in finding and keeping employment. As against the approximately $1,500 earned on his ill-starred two and a half months voyage on the Steel Architect, his earnings were $2,335 for a part of 1969, when he returned to work about Easter; $3,944 for 1970; slightly more than $2,000 for 1971; $2,237 for 1972; and $1,140 in 1973 up to the date of trial in late May.


#4

[U][B]Ressler 2 0f 4:[/B][/U]

Over plaintiff’s objection Judge Weinfeld dismissed the claim for maintenance [B][I]*581[/I][/B] and cure on the authority of the oft-cited dictum in Aguilar v. Standard Oil Company, 318 U.S. 724, 731, 63 S.Ct. 930, 87 L.Ed. 1107 (1943), of which more hereafter, and thus did not have to reach the questions how long the obligation to provide such benefits would continue, see Gilmore & Black, Admiralty §§ 6-10, 11 and 12 (2d ed. 1975), a point on which Ressler is now aided by Vella v. Ford Motor Co., 421 U.S. 1, 95 S.Ct. 1381, 43 L.Ed.2d 682 (1975), and how the maintenance liability was related to Ressler’s claim for loss of earnings from October 1, 1967, see [I]id.[/I] § 6-12 at 309. The judge put seven questions to the jury which they answered as follows:

Question 1: Do you find that Ressler has established his claim of unseaworthiness?

‘No’

Question 2: Do you find that Ressler has established his claim of negligence?

‘Yes’

Question 3: What sum do you find as damages for (a) pain and suffering to date including the nature of his injuries?

‘$15,000’

(b) Future pain and suffering, if any?

‘$15,000’

© Loss of wages from date of occurrence to present?

‘$30,000’

(d) Future loss of wages, if any, he is reasonably likely to sustain?

‘Zero’

Question 4: What is the total amount of damages?

‘$60,000’

Question 5: Did the defendant sustain its burden of proof on contributory negligence?

‘Yes’

Question 6: If the answer is ‘yes’, what percentage?

‘40%’

Question 7: Deducting the percentage from the total amount of damages referred to in 4, what sum do you find plaintiff is entitled to recover?

‘$36,000’

Plaintiff’s counsel moved to set aside the verdict on the ground that the awards for pain and suffering and the zero award for future loss of wages ‘were so inadequate as to shock the conscience of the Court.’ Stating that the conscience of the court was not shocked ‘in the slightest degree’ and that he regarded the result as ‘eminently fair’, Judge Weinfeld denied the motion and entered judgment on the verdict. The sole issues pressed on appeal are his withdrawal from the jury of the claim for maintenance and cure after April 20, 1968, and the jury’s failure to make any award for future loss of wages.

In [I]Aguilar, supra[/I], 318 U.S. at 731, 63 S.Ct. at 934, after expatiating on the broad scope of the shipowner’s liability for maintenance and cure (‘Conceptions of contributory negligence, the fellowservant doctrine, and assumption of risk have no place in the liability or defense against it’), Mr. Justice Rutledge stated:


#5

[U][B]Ressler 3 0f 4:

[/B][/U] [LEFT][LEFT]Only some wilful misbehavior or deliberate act of indiscretion suffices to deprive the seaman of his protection.

He added:

The traditional instances are venereal disease and injuries received as a result of intoxication, though on occasion the latter has been qualified in recognition of a classic predisposition of sailors ashore.

(Footnotes and references thereto omitted). Plaintiff’s counsel calls attention to some authority, notably Bentley v. Albatross S.S. Co., 203 F.2d 270 (3 Cir. 1953), which has taken advantage of the Court’s qualification with respect to intoxication.FN3 Arguably, engaging in sexual intercourse while ashore after a long voyage, especially by an unmarried man as Ressler was, has become-perhaps always was-as much ‘a classic predisposition’ of sailors as excessive indulgence [B][I]*582[/I][/B] in alcohol. See Gilmore & Black, [I]supra[/I], at 290-91. However, there is as yet no authority for disregarding Mr. Justice Rutledge’s dictum that when venereal disease is contracted through intercourse, the shipowner is not liable for maintenance and cure. A rather light hearted lower New York court opinion, Koistinen v. American Export Lines, Inc., 194 Misc. 942, 83 N.Y.S.2d 297 (N.Y. City Ct. 1948), purported to distinguish the [I]Aguilar[/I] dictum on the basis that while the plaintiff, who had been injured in Jugoslavia as a result of jumping from a window to escape from the room of a female companion-exit by the door being impeded by her threatening male associate-‘did not accompany the woman to her room for heavenly contemplation,’ he had ‘abandoned that purpose before consummation’, and that in any event the injury did not result from execution of his original sinful intent; what incapacitated him for 36 days was not ‘venereal disease’, whereof Mr. Justice Rutledge spoke, but injury from the jump. The present case, where any recovery of maintenance and cure would be for no more than a few months in any event, would be a rather poor vehicle for an inferior court to make the appropriately rare prediction that the Supreme Court will no longer abide by what it has clearly said.

FN3. Even the qualification for intoxication has not been followed in all cases. See Victoria v. Luckenbach S.S. Co., Inc., 141 F.Supp. 149 (S.D.N.Y.1956), aff’d 240 F.2d 349 (2 Cir. 1957) ( [I]per curiam[/I]).

We have been considerably more troubled by the jury’s failure to award any damages for loss of future earnings. Plaintiff first contends that this is inconsistent with the rest of the jury’s special findings. Primarily we note that counsel did not raise the inconsistency point before the district court; as mentioned above, his only objection was that certain of the damages awarded were grossly inadequate. We also emphasize that we are here dealing not with a series of special verdicts under Fed.R.Civ.P. 49(a), but with the validity of a general verdict accompanied by a series of interrogatories under Fed.R.Civ.P. 49(b).

[/LEFT]

[LEFT]Maritime Injury Lawyer - Steve Gordon[/LEFT]

[LEFT]
[/LEFT]
[/LEFT]


#6

Ressler 4 of 4:

It is not clear precisely in what way plaintiff considers the jury’s failure to award him any damages for loss of future earnings to be inconsistent with its other ‘special findings’. In his brief he contends that since the jury found loss of wages in the amount of $30,000 to the date of trial and also ‘past and future pain and suffering’, its failure to award future loss of wages ‘can be accounted for only if the jury misunderstood or ignored the Court’s charge’. However, this combination of responses to the interrogatories would not on its face appear inconsistent; the answers are not irreconcilable to an extent that we would feel required, or even permitted, to remand for a new trial, even one limited to the question of future lost wages. The jury quite reasonably could have awarded $30,000 for lost earnings up to the date of the trial as compensation for the period in which Ressler was undergoing treatment prior to his last operation and a reasonable time for recovery thereafter, plus an additional sum for loss of wages during the period in which he could have been expected to be seeking new permanent employment. Viewed in these terms the award for lost wages in the past is not inconsistent with the conclusion that there was no permanent reduction in his future earnings capacity. Similarly, the award of damages for future pain and suffering is not inconsistent with the failure to award damages for loss of future earnings since the jury may quite reasonably have concluded that whatever discomfort Ressler would suffer in the future, the thrice daily use of eye drops would sufficiently reduce the pain as not to interfere significantly with his ability to obtain or keep employment. We have been instructed that:

Where there is a view of the case that makes the jury’s answers to special interrogatories consistent, they must be resolved that way. For a search for one possible view of the case which will make the jury’s finding inconsistent results in a collision with the Seventh Amendment.

A&G Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364, 82 S.Ct. 780, 786, 7 L.Ed.2d 798 (1962).

Ressler also contends that even if the answers were not inconsistent, the ‘uncontradicted evidence’ conclusively demonstrated that his future earnings in fact would be lower than they otherwise might have been or, alternatively, that as a matter of law the loss of one eye inevitably decreases a person’s earning capacity, particularly when the person is illiterate. It is doubtless true that, although there are many jobs for which ability to use both eyes is not essential, prospective employers prefer to hire persons not so handicapped, if only because of fear over an industrial accident to the useful eye. As indicated above, Ressler gave some testimony that he had encountered difficulty of this sort; moreover that his limited vision had impeded his performance of one of the jobs he had been able to obtain. On the other hand, the depressing effect of this disability is hard to quantify, especially for the long period of Ressler’s prospective employability, and the jury could have been impressed by the fact that he had had some success in finding different forms of employment.FN4 And of course the jury may have disbelieved portions of his testimony. Indeed the entire testimony with respect to his loss of earnings was extremely sketchy. It appears that except for assistance he had rendered his mother on a newspaper route, he had had no other employment prior to the sea voyage. Moreover, because the Public Health Service had marked him ‘unfit for duty’, Ressler had never made any inquiry with anyone concerning the possibility of his obtaining another position on a ship, perhaps one limited to intercoastal service. The limitation on earning power due to his illiteracy cuts both ways; this was not the usual situation of a young man likely to progress up the salary ladder. In sum, this is not a case where the ‘uncontradicted evidence’ pointed unerringly to the conclusion that the plaintiff’s future earning capacity had been diminished in an amount for which a jury was bound to allow, or where such an award is required as a matter of law.

FN4. Ressler held positions, among others, as a gas station attendant and the night manager of grocery store; he also worked for a department store and a builder of prefabricated homes.

If we view the case simply as an appeal from a refusal of the district court to set the verdict aside as inadequate, the only ground put to the district judge, we are bound to affirm. The standard for reviewing the refusal of a trial judge to disturb a verdict as inadequate is the same as when he has refused to upset one as excessive. Caskey v. Village of Wayland, 375 F.2d 1004, 1007-08 (2 Cir. 1967); Yodice v. Koninklijke Nederlandsche Stoomboot Maatschappij, 471 F.2d 705 (2 Cir. 1972) ( [I]per curiam[/I]), cert. denied, 411 U.S. 933, 93 S.Ct. 1902, 36 L.Ed.2d 393 (1973). In that situation we have stated that we are ‘not to decide whether we would have set aside the verdict if we were presiding at the trial, but whether the amount is so high that it would be a denial of justice to permit it to stand’ and that ‘[w]e must give the benefit of every doubt to the judgment of the trial judge.’ Dagnello v. Long Island R.R., 289 F.2d 797, 806 (2 Cir. 1961) (Medina, J.). There was nothing to indicate that the jury was prejudiced against Ressler; its $60,000 verdict before deduction for contributory negligence, considered as a whole, was not ungenerous. Taking everything into account, we cannot find that the experienced judge, who had seen and heard Ressler, abused his discretion in refusing to set the verdict aside. Affirmed.[LEFT][LEFT]
[/LEFT]
[/LEFT]


#7

The next case is divided into 5 parts: 1 of 5:
[CENTER][B]IAN THOMAS[/B]
v.
[B]NEW COMMODORE CRUISE LINES LIMITED, INC.[/B][/CENTER]
[CENTER]United States District Court, Southern District of Florida, May 22, as amended[/CENTER]
[CENTER]May 24, 2002[/CENTER]

[CENTER]No. 99-3313-CIV[/CENTER]

[CENTER][B]PERSONAL INJURY - 1372. Willful Misconduct - 141. Maintenance, Cure and Wages - STATUTES - Federal - Americans with Disabilities Act, 42 U.S. Code 12100, et seq.[/B][/CENTER]

A seaman tested positive for the HIV virus cannot recover maintenance and cure because of the venereal disease defense in the absence of sufficient evidence that it was contracted innocently. The defense is not altered by the Americans with Disabilities Act.

[B][I]Thomas v. New Commodore Cruise Lines Ltd., Inc.[/I][/B]

Reported also at 202 F.Supp.2d 1356
David H. Pollack and Charles R. Lipcon

[I]for Thomas[/I]

William Barry Milliken (Hayden & Milliken)

[I]for New Commodore Cruise[/I]

William M. Hoeveler, D.J.

This cause comes before the Court upon the Defendant’s Motion for Summary Judgment, filed February 19, 2002. The Plaintiff responded on March 18, 2002.

[B][I]Background[/I][/B]

On September 17, 1999, the Plaintiff, Ian Thomas, entered into a Crew Employment Contract with the Defendant, New Commodore, to work aboard the S/S [I]Enchanted Capri.[/I] As provided in the Plaintiff’s Crew Employment Contract with the Defendant, the Plaintiff’s hiring was contingent on a pre-employment physical which included testing for HIV. On September 19, 1999, the Plaintiff boarded ship. Upon realizing that the Plaintiff had not undergone the required testing, the Defendant referred the Plaintiff to the Marine Medical Unit in New Orleans for his pre-employment physical and required HIV screening. The results from a blood test collected on September 24, 1999 revealed that the Plaintiff was HIV positive. The Plaintiff brought this action, in part, to recover maintenance and cure based on his testing positive for HIV.

On November 22, 2000, the Defendant filed its first Motion for Summary Judgment. On January 7, 2002, the Court entered an Order denying summary judgment, stating that more discovery was required and allowing the Defendant to submit a subsequent motion upon completion of such discovery. AMC 1776

Having taken the Plaintiff’s deposition, the Defendant submitted this Motion

[B][I]Standard[/I][/B]

[FONT=&quot]Rule 56© of the Federal Rules of Civil Procedure[/FONT] provides that summary judgment is appropriate only where the moving party is entitled to judgment as a matter of law. A court’s task is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.’ [I][FONT=&quot]Anderson v. Liberty Lobby, Inc.[/I], 477 U.S. 242, 249 (1986)[/FONT]. The purpose of the summary judgment rule is to dispose of unsupported claims or defenses which, as a matter of law, raise no genuine issues of material fact suitable for trial. [I][FONT=&quot]Celotex Corp. v. Catrett[/I], 477 U.S. 317, 322-23 (1986)[/FONT].

The party who moves for summary judgment bears the initial burden “to show the district court, by reference to materials on file, that there is no genuine issue of material fact that should be decided at trial.’ [I][FONT=&quot]Clark v. Coats & Clark, Inc.[/I], 929 F.2d 604, 608 (11 Cir. 1991)[/FONT]. A court must view the evidence presented in a light most favorable to the non-moving party.

However, once the moving party meets his initial burden, “the burden shift[s] to the non-moving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment.’ [I][FONT=&quot]Id.[/I] at 608[/FONT]. The non-moving party may not rest upon mere allegations or denials in his pleadings, but must set forth specific facts, through affidavits or the other forms of evidence provided for by the rules. [I][FONT=&quot]Adickes v. S.H. Kress & Co.[/I], 398 U.S. 144, 157 (1970)[/FONT]. Essentially, “the inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ [I][FONT=&quot]Anderson[/I], 477 U.S. at 251-52.[/FONT] With this standard in mind, we address Defendant’s Motion for Summary Judgment.


#8

[I][U][B]Thomas[/B][/U][/I] 2 of 5:
[B][I]
Analysis[/I][/B]

In his second Motion for summary judgment, the Defendant reasserts its argument that a seaman’s right to maintenance and cure does not apply where the illness or injury for which the seaman seeks recovery arises from his own vices. The law is well established that maintenance and cure is not available when a seaman’s injury results from either voluntary intoxication or venereal disease. [I]See [/I][I][FONT=&quot]Aguilar v. Standard Oil Co.[/I], 318 U.S. 724, 731,[/FONT] [FONT=&quot]1943 AMC 451 , 457 (1943)[/FONT]. At least one Court has specifically held that the venereal disease exception applies to HIV and neither the Plaintiff AMC 1777

nor the Court has been able to find any case holding contrary. [I]See [/I][I][FONT=&quot]Bynum v. Premier Cruise Lines, Ltd., Inc.[/I], 1994 AMC 2185 , 1994 WL 617067 (M.D. Fla. 1994)[/FONT]. Thus, because the plaintiff is seeking maintenance and cure based on HIV, this would appear to be a clear application of the [I]Aguilar/Bynum[/I]rule.

The Plaintiff, however, argues that notwithstanding [I]Bynum[/I], HIV should not be considered a venereal disease for purposes of the exception to maintenance and cure. The Plaintiff, nonetheless, has presented no convincing basis for distinguishing HIV from other venereal diseases. Both HIV and other venereal diseases can be contracted through one single sexual contact. Both are occasionally transmitted through means other then sexual intercourse. Both have been and continue to be a source of social stigma. Importantly, an employer has a very limited ability to prevent employees from contracting both HIV or other venereal diseases. Therefore, the Plaintiff has presented and the Court can find no basis for distinguishing HIV from other venereal diseases for purposes of maintenance and cure and the Court declines to do so.

Second, the Plaintiff argues that [I]Bynum[/I] is distinguishable because in that case it was clear that the seaman contracted HIV through sexual contact whereas in the present case there is some ambiguity as to how the Plaintiff contracted HIV. [FONT=&quot]1994 AMC at 2186[/FONT], [FONT=&quot]1994 WL 617067 at *1.[/FONT] The Plaintiff has presented, however, only two possible ways he may have contracted HIV. First, he may have contracted HIV when his condom broke during intercourse. The other possibility is that he contracted the virus from “dealing’ with bloody sheets and needles.

The Defendant has presented the testimony of Stewart Macintyre, who is licensed to practice medicine in Florida and specializes in the treatment of infectious disease. Dr. Macintyre testifies that “One cannot contract HIV by the mere handling of bloody sheets or needles. One can never contract HIV from the mere handling of bloody sheets. With regard to the handling of needles, two things have to occur: (1) the needle has to be contaminated with HIV; and (2) Mr. Thomas would have had to been [sic] punctured by the contaminated needle.’ The Plaintiff has presented no evidence to contradict the testimony of Dr. Macintyre.

The Plaintiff argues that it is possible he was punctured by a needle. When asked whether he was ever punctured by a needle, however, the Plaintiff stated “Well, can’t say that I can recall that can’t recall that but, you know - can’t say recall that, no.’ The Plaintiff’s response tends to show that he was never punctured by a needle, as getting punctured by a used needle is the type of event a person would generally remember. AMC 1778

Regardless, however, the mere possibility that the Defendant was punctured by a needle but has no recollection of it, is not enough to create a triable issue of fact. Because the Plaintiff has presented no evidence that he contracted HIV from anything other than sexual contact, there is no basis for distinguishing [I]Bynum[/I]

The Plaintiff makes a third argument, which is that summary judgment is foreclosed by [I][FONT=&quot]Garay v. Carnival Cruise Line, Inc.[/I], 1990 AMC 2715[/FONT] ,[FONT=&quot]904 F.2d 1527 (11 Cir. 1990)[/FONT]. In [I]Garay[/I], an intoxicated seaman fell down a flight of stairs on board ship. The defendant asserted “wilful misconduct’ as a defense, because the seaman was intoxicated. The Court held that willful misconduct is not a defense to maintenance and cure when such conduct is condoned by the shipowner. The Court found that the conduct was condoned in [I]Garay[/I] because (a) the ship provided the crew with “unlimited beer’; (b) the ship’s crew testified that “drinking and drunkenness were expected and condoned, and that dismissal would be an unusual result’; and © the ship’s captain testified that “he knew he would have drunk crew members on board, and he admitted that a seaman’s frequent drunkenness would be tolerated.’


#9

[U][I][B]Thomas[/B][/I][/U][B] 3 of 5:

[/B] [I]Garay[/I] is distinguishable from this case for a number of reasons. First, injuries received as a result of intoxication are distinguishable from injuries received from venereal disease, as [I]Garay[/I] itself notes, because the intoxication defense has been qualified whereas the venereal disease defense has not been. [I]See[/I] [FONT=&quot]1990 AMC at 2719[/FONT], [FONT=&quot]904 F.2d at 1530[/FONT] (“The traditional instances are venereal disease and injuries received as a result of intoxication, though on occasion the latter has been qualified in recognition of a classic predisposition of sailors ashore.’) ( [I]quoting [/I][I][FONT=&quot]Aguilar v. Standard Oil Co.[/I], 318 U.S. 724, 731,[/FONT][FONT=&quot]1943 AMC 451 , 457 (1943)[/FONT]). Injuries received as a result of intoxication are further distinguishable from injuries received from venereal disease, because it is practical to expect shipowners and captains to know whether their seamen are regularly intoxicated, whereas it is impractical to expect them to know whether seamen are engaging in private activities which might lead to the spread of venereal disease.

Finally, in [I]Garay[/I], the Court found that the shipowners not only condoned drinking but actually condoned drunkenness (i.e. drinking to excess). Thus, to be analogous in the realm of venereal disease, a shipowner would have to be aware of and condone, not just sexual activities generally, but promiscuity or other dangerous sexual activities. This fact-pattern is unlikely to ever arise and certainly is not present in the case at bar.

Even if the general principle of [I]Garay[/I] applied to venereal disease, the holding would still not help the Plaintiff under the facts of this case. In AMC 1779

[I]Garay[/I] ample evidence was presented that the Defendants (a) were aware that the misconduct occurred regularly; (b) tolerated the frequent misconduct; and © provided the seaman with the means to engage in the misconduct. Sexual activities are, by their nature, private and in the present case, the Plaintiff has presented no evidence that the Defendant was aware of promiscuity or other dangerous sexual activities occurring. The only evidence the Plaintiff has presented is the fact that the Defendant provided condoms in a bowl in the ship’s medical facility. This does not suggest that the Defendant was aware of or was encouraging promiscuity. To the contrary, it indicates that the Defendant was actively attempting to prevent the spread of sexually transmitted disease, a fact for which it should be applauded rather than punished. Unlike [I]Garay[/I], in which the employer was providing the seamen with the means to engage in misconduct and a means likely to cause injury, here the employer was providing a means of avoiding injury. Analogously, a ship owner is not encouraging seamen to run around recklessly on the deck of the ship when he provides life-vests, safety lines, and other life saving equipment. Thus, [I]Garay[/I] is of no help to the Plaintiff in this case.

Finally, the Plaintiff argues without citation, that “venereal disease is no longer a defense to a maintenance and cure claim’ because it was “displaced by Congress when it enacted the ADA.’ This Court finds that the defense was not displaced by the Americans With Disabilities Act (“ADA’).

“The normal rule of statutory construction is that if Congress intends for legislation to change the interpretation of a judicially created concept, it makes that intent specific.’ [I][FONT=&quot]Wilhelm Pudenz, GmbH v. Littlefuse Inc.[/I], 177 F.3d 1204, 1210 (11 Cir. 1999)[/FONT] (quoting [I][FONT=&quot]Midlantic Nat’l Bank v. New Jersey Dep’t of Environmental Protection[/I], 474 U.S. 494, 501 (1986)[/FONT]). Nothing in the ADA statute suggests that Congress intended to have any effect on the doctrine of maintenance and cure or specifically the venereal disease defense. The ADA was passed in July of 1990. Since then, numerous Courts have applied the venereal disease defense without hesitation. [I]See e.g. [/I][I][FONT=&quot]West v. Midland Enterprises, Inc.[/I], 227 F.3d613, 2001 AMC 1214[/FONT] [DRO] (6 Cir. 2000); [I][FONT=&quot]Protogyrou v. Lines[/I], 42 F.3d 1386 (4 Cir. 1994)[/FONT] ( [I]unpublished disposition[/I]); [I][FONT=&quot]Silmon v. Can Do II, Inc.[/I], 1997 AMC 618[/FONT] , [FONT=&quot]89 F.3d 240 (5 Cir. 1996)[/FONT]; [I][FONT=&quot]Bynum[/I], 1994 AMC 2185 , 1994 WL 617067[/FONT]. The idea of treating HIV and other venereal diseases differently for purposes of maintenance and cure is a logical one, because unlike other accidents and diseases, there is very little an employer can do to prevent the spread of venereal diseases. Thus, requiring employers to pay for venereal diseases AMC 1780

will do little to prevent the problem. In sum, no Court has held that the ADA has eviscerated the venereal disease exception and this Court declines to do so today.


#10

[U][I][B]Thomas [/B][/I][/U][B]4 of 5:

[/B]The Plaintiff then seems to argue that even if the entire venereal disease exception is not abrogated, the exception cannot apply to HIV, because the ADA specifically includes HIV as a disability. The Supreme Court, however, has made clear that HIV is not a [I]per se[/I] disability under the ADA. [I]See [/I][I][FONT=&quot]Bragdon v. Abbott[/I], 524 U.S. 624, 641-42 (1998)[/FONT] (declining to hold that HIV is a [I]per se[/I] disability); [I][FONT=&quot]Toyota Motor Mfg., Kentucky Inc. v. Williams[/I], 534 U.S. 184 (2002)[/FONT] (“The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual. The determination of whether an individual is substantially limited in a major life activity must be made on a case-by-case basis’) (quoting 29 CFR pt. 1630, App. 1630.2(j) (2001)); [I]see also[/I] [FONT=&quot]42 USCA 12102[/FONT]. Thus, the ADA does not treat HIV differently than any other venereal disease or any other disease for that matter.

Moreover, to the extent that HIV is found to be a disability in a given case, the ADA requires that employers treat people with HIV no differently than they would treat people with other disabilities and diseases. Here the Plaintiff is actually asking the employer to do the opposite: to treat HIV victims differently than it would treat people with every other venereal disease. This seems to conflict with the basic premises of the ADA’s treatment of HIV and other diseases. Nothing in the ADA suggests that HIV victims should be given special treatment.


#11

[U][I][B]Thomas[/B][/I][/U] [B]5 of 5:[/B]

Finally, it appears that the Plaintiff is not arguing that the Defendant actually violated ADA, only that the [I]Bynum[/I] rule has been abrogated by the ADA. However, any claim that the Defendant violated ADA must fail. First, the Plaintiff has not brought an ADA claim. Second, by failing to provide maintenance and cure for seaman injured as a result of venereal disease, the employer is not discriminating. He is merely following the well-established law. [I]See [/I][I]Ellenwood v. Exxon Shipping Co.[/I], 984 F.2d1270, 1284, 1993 AMC 2994 [DRO] (1 Cir. 1993) (holding that maintenance and cure differs from rights normally classified as contractual because the duty to provide maintenance and maintenance and cure is imposed by the law itself.) Third, it appears that the Plaintiff was hired contingent to his being “HIV free’ and thus when the Plaintiff tested positive for HIV, he did not meet the prerequisites of his employment and was not entitled to further employment or the benefits thereof. Finally, the Plaintiff has not presented and the Court has not found a single case holding that maintenance AMC 1781

and cure can be considered “compensation’ or a “privilege of employment’ for purposes of ADA. In short, the Plaintiff has provided the Court with no argument or law which suggests that the venereal disease defense has been eviscerated by the ADA or that the defendant violated the ADA.

Therefore, having been advised in the premises, it is hereby ordered and adjudged that the Defendant’s Motion for Summary Judgment is granted. This case is closed and all pending motions are denied as moot.
[CENTER]Copyright © 2002 by American Maritime Cases, Inc.[/CENTER]

S.D.Fla., 2002

202 F.Supp.2d 1356, 2002 A.M.C. 1775, 13 A.D. Cases 349, 24 NDLR P 9, 15 Fla. L. Weekly Fed. D 310

Jones Act Lawyer - Steve Gordon


#12

I believe the cases reveal that the employer would, assuming nothing the employee did that would have some “fault” in getting cancer, have to pay cure until the seaman reached maximum medial improvement.

I hope this all helps.


#13

[quote=Jones Act;20316]I believe the cases reveal that the employer would, assuming nothing the employee did that would have some “fault” in getting cancer, have to pay cure until the seaman reached maximum medial improvement.

I hope this all helps.[/quote]

Steve, many thanks for this. Very informative for me.
I beleive, if the crew member died of cancer (without his willingness, as he was medicaly treated upon repatriation) - his family is entitled to compensation as per collective agreement.

The only thing, as we are now talking of precedents in US, the company employing him was in UK, ergo UK contractual law and legislative applies.

I will presume, his family, will have right to claim as mentioned.