The right to receive maintenance and cure if you are injured or suffered an illness while in the service of a vessel, as a seaman, is one of the oldest remedies available to seamen. It is an ancient obligation placed on the employer to take care of seamen who suffer an injury or illness while in the service of a vessel. There are a few exceptions to the obligation, and any ambiguities or doubts as to the right of a seamen to maintenance and cure must be resolved in favor of the seaman.
Maintenance and cure is a contractual form of compensation that is provided for under the general Maritime law. The obligation to provide maintenance and cure does not depend on any determination of fault. It is an obligation that is treated as an implied term of any contract of Maritime employment with a seaman.
A seaman can recover maintenance and cure even for an injury or illness that may have pre-existed the seaman's employment unless the seaman knowingly or fraudulently concealed a medical condition from his employer at the time he was hired.
The employer is entitled to investigate any claim for maintenance and cure benefits before paying them. One of the few defenses available to a Maritime employer to deny maintenance and cure, is a defense that the seaman willfully concealed a pre-existing medical condition from his employer. Most, if not all, employers of seamen, require the seamen to submit to pre-employment physical examinations and interviews. It is at this time that the seaman must be very careful not to fail to disclose any pre-existing medical condition he or she may have as this may later result in a defense raised by the employer to a claim for maintenance and cure.
In order to maintain the defense of an intentional misrepresentation by the seaman, the Maritime employer must establish the three elements in order to have a valid basis to deny maintenance and cure benefits:
1. The seaman intentionally misrepresented or concealed medical information;
2. The medical information that was not disclosed would have been material to the employer's decision whether to hire the crewmembers; and
3. There is a casual connection between the information that was not disclosed and the injury or illness the seaman is claiming maintenance and cure benefits for in the lawsuit.
The Fifth Circuit Court of Appeals has stated that the issue as to whether a seaman intentionally concealed material medical information is not necessarily a credibility determination. In other words, the seaman is not simply asked if he intentionally failed to disclose the information or not, and asked for excuses as to why he did not disclose the medical information. Instead, the inquiry the Court makes is an "objective inquiry". The intentional concealment element of the defense does not require that the crewmember have a subjective intent to intentionally misrepresent his medical conditions at the pre-employment stage. Rather it is an objective inquiry. If there is a failure to disclose medical information in an interview or questionnaire that would be considered obvious medical information that was important to the employer and was trying to be elicited from the crewmember, the objective inquiry standard would likely be met despite any subjective statement of the crewmember that he did not mean to fail to disclose the information.
We suggest to any individual who works at sea as a crewmember/seaman, to carefully answer the questions at the initial interview and pre-employment physical examination so that the employer will not later have an excuse to deny these very important maintenance and cure benefits.
Our law firm assists both passengers and crewmembers who have been harmed at sea.