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]
[B]PREMIER CRUISE LINES, LTD. , ET AL., Defendants[/B]
[CENTER]United States District Court, Middle District of Florida (Tampa Division),
[CENTER]June 2, 1994
[CENTER][B]PERSONAL INJURY - 141. Maintenance, Cure and Wages[/B]
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.
Not Reported in F.Supp., 1994 WL 617067 (M.D.Fla.), 1994 A.M.C. 2185
Maritime Lawyer -Steve Gordon