Overview of Maintenance, Cure and Unearned Wages
For shoreside workers who work in an office or on a jobsite, the concept of workers’ compensation benefits is fairly common knowledge. If an employee suffers an on-the-job injury or work-related illness, she is entitled to have her medical costs paid for and to receive certain wage loss benefits, usually a portion of her regular pay. Those benefits are provided on a “no fault” basis, meaning that the injured employee is not required to prove that her employer was negligent, as would be the case in a typical tort claim, such as a traffic accident.
In the case of a serious injury or occupational disease that results in permanent partial or total disability, workers’ compensation medical and wage loss benefits can continue for many years. While shoreside workers enjoy these benefits, the tradeoff is that they generally cannot bring a lawsuit against their employer for damages. That means that they cannot recover for the full extent of their wage loss, or for pain and suffering and other subjective losses. Their recovery is limited.
Seamen working aboard vessels have very different remedies available to them for injuries or illnesses that arise while they are in the service of the vessel. Three such remedies that bear some resemblance to workers’ comp are (1) maintenance, (2) cure, and (3) unearned wages. Like workers’ compensation, the vessel owner owes these remedies to an ill or injured crew member on a strict liability basis. That means that the seaman is entitled to receive them even if the vessel owner was not negligent or otherwise at fault in any way.
These remedies trace their roots to the Rolls of Oléron, which were enacted in about 1160 AD. The goal of these remedies is to prevent vessel owners from abandoning crew members who can no longer do their job due to illness or injury. Instead, the vessel owners must provide some support while the crew member recovers.
Maintenance is a stipend intended to cover the cost of room and board during the seaman’s recovery. The amount of maintenance is usually fixed in a union’s collective bargaining agreement with vessel operators, or, for non-union seamen, in the employment contract or company policy.
Maintenance payments vary widely, with some union contracts still offering as little as $16 per day, and some companies voluntarily offering as much as $100 per day. The amount can also vary by location and industry—deep draft, tug and barge, offshore, and fishing vessel. Rates on the U.S. West Coast are commonly in the range of $45 to $75 per day.
When a dispute arises, courts apply varying standards for the proper rate of maintenance. Some courts require payment for room and board comparable to that provided on the vessel. That can be the rental cost of a room in shared housing, and the U.S. Department of Agriculture’s Food Cost Plan for adults. Other courts consider the crew member’s actual living expenses, including mortgage, utilities, and related expenses, and calculate a daily rate based on that.
Cure is shorthand for medical expenses. The vessel owner is obligated to pay the costs of medical treatment for an ill or injured seaman. In addition to paying for the medical care, the vessel owner must also act reasonably to make sure that crew members get the care they need. That can include consultations via satellite phone from the middle of the ocean to a shoreside physician, injections of narcotics or other medication on board a vessel, or even costly medical evacuation from remote locations to bring the crew member to a treatment facility.
Crew members sometimes choose their own medical providers, which they are free to do as long as the cost of treatment is reasonable. Cure also includes related expenses, such as mileage and parking charges. Importantly, crew members are not required to contribute toward the cost of cure. So they are not responsible for deductibles, co-pays, or out of network expenses, as is typically the case with traditional medical insurance plans.
Maintenance and cure both continue until the seaman reaches maximum medical improvement. That is the point at which further treatment will not improve the seaman’s condition, even if continued treatment will help preserve the gains made and prevent any worsening.
For a crew member whose injury or illness results in a partial or total disability that prevents him from going back to work on vessels, this can be difficult because he can no longer engage in his usual livelihood and his maintenance and cure benefits have ended. He may need to retrain or go back to school to find a shoreside job.
The third remedy for ill or injured seamen is called “unearned wages.” That is, quite simply, the wages they would have earned if not for the illness or injury.
Traditionally, seamen received the wages they would have earned through the end of the voyage they were on when the illness or injury occurred. If the crew member left the vessel with an illness or injury on the second day of a two-month voyage, she received her wages for nearly the next couple of months. If she left the vessel the day before the end of the voyage, she received just that last day’s pay.
For crew members who work on vessels that do not go on traditional voyages, such as harbor assist vessels and coastwise tugs and barges, employers will typically pay unearned wages through the end of a pay period or contemplated work assignment. On fishing boats, the vessel owner pays the share of the catch the crew member would have received.
Courts have increasingly included overtime pay, vacation pay, and other compensation the crew member would have received, such as tips for cruise ship workers, as part of unearned wages. The exception to this is for unionized seamen. If the union contract provides a specific basis for determining unearned wages, then the federal courts will apply the contract term, even if it excludes overtime and vacation pay.
Washington State courts, however, go their own way on this. The state courts in Washington have rejected the federal court approach and will not automatically enforce a union contract where they believe the terms set for the maintenance rate, and by analogy the amount of unearned wages, are unreasonably low. Only a decision from the U.S. Supreme Court can bring uniformity to the land on this issue, as only precedent from the U.S. Supreme Court is binding on the Washington State Supreme Court.
The maritime remedies of maintenance cure and unearned wages are different from shoreside workers’ comp in a couple of other respects as well. First, vessel owners owe those remedies to a seaman even if the injury or illness is not work related, as long as the condition appeared while the seaman was in the service of the vessel. So if a crew member develops a toothache or has an appendicitis, the vessel owner owes maintenance, cure and unearned wages, regardless of the fact that the condition is entirely unrelated to the seaman’s work on the vessel.
Moreover, the injury or illness can arise while the crew member is off duty or even while on shore leave while the vessel is in port. For example, if the crew member goes to a restaurant ashore for a meal, and is injured while riding in a taxi on the way back to the vessel, the vessel owner owes maintenance, cure and unearned wages in connection with the injuries. The rationale is that even when a crew member is off duty on the vessel or ashore, he is still subject to being called back to work, and therefore remains in the service of the vessel at all times until he signs off the vessel and is no longer a member of the crew.
In addition to maintenance, cure and unearned wages, seamen are also entitled to pursue claims for damages resulting from their injuries aboard ship. Those remedies generally consist of a Jones Act negligence claim and an unseaworthiness claim. Those claims allow the seaman to recover lost wages after the injury, including future wage loss and damages for pain and suffering. So in that regard, the seaman’s remedies are more expansive than workers’ compensation benefits. A maritime attorney can provide more information about these claims.
Philip Lempriere is a transportation, ports and maritime lawyer for Schwabe, Williamson & Wyatt, a full-service law firm with offices in Oregon, Washington, Northern California, and Alaska. Contact Philip at firstname.lastname@example.org or 206-407-1543.
Column first appeared in the September 1, 2018 issue of Pacific Maritime Magazine.
The information in this article is intended for informational purposes only and is not intended to serve as legal advice regarding specific matters nor should it be construed as a legal opinion. Use of this material does not establish an attorney-client relationship between you and Schwabe, Williamson & Wyatt. The information should not be used to replace the advice of a licensed attorney.