The petition for writ of certiorari is denied.
asive. Haney's injury was obviously serious. When the vessel struck the pier Haney was thrown backwards and struck his neck on the hatch. He stood up and was knocked down again when the vessel hit the bulkhead. Pl.'s St. at ¶ 13. Passengers and other crewmembers assisted him after the collision. Pl.'s St. at ¶ 18; Pl. Ex. A at 72-89. There is evidence that no medical care was provided aboard the vessel. It had reached its destination in
Manhattan, and the evidence may demonstrate that Emergency Medical Services could have immediately taken him to a local hospital. Defendants do not provide persuasive evidence supporting a return to Staten Island before providing Haney with appropriate medical assistance. The rough water conditions, combined with possible engine transmission failures supported the need to seek immediate medical attention at the scene rather than to risk further injury to plaintiff during the rough journey back to Staten Island. The jury could find that immediate disembarkation was the prudent choice.
C. General Maritime Law
Under the doctrine of unseaworthiness, a vessel owner has the duty to provide its seamen "with a ship and appurtenances that are reasonably fit for their intended purposes." Sojak v. Hudson Waterways Corp., 590 F.2d 53, 54 (2d Cir. 1978) (per curiam). The general rule is that the vessel must be "staunch, strong, well equipped for the intended voyage and manned by a competent and skillful master of sound judgment and discretion." Tug Ocean Prince, 584 F.2d at 1155. This duty is absolute, but it does not require perfection or an accident-free vessel. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550 (1960). The standard is "reasonable fitness; not a ship that will weather every conceivable storm or withstand every imaginable peril of the sea, but a vessel reasonably suitable for her intended service." Nasser, 191 F.Supp.2d at 314-15.
If a plaintiff establishes unseaworthiness the ship owner is strictly liable. See Seas Shipping Co. v. Sieracki, 328 U.S. 85, 94-95 (1946). The plaintiff may establish causation by proving that the "unseaworthiness played a substantial part in bringing about or actually causing the injury, and . . . the injury was either a direct result or reasonably probable consequence of unseaworthiness." Saleh v. United States, 849 F.Supp. 886, 895 (S.D.N.Y. 1994).
Liability based on the concept of unseaworthiness is wholly distinct from liability based on negligence because unseaworthiness derives from a condition of the vessel — not limited by conceptions of negligence — and precisely how the condition came into being is irrelevant to
the owner's liability for injuries resulting from it.
In re Hygrade Operators, Inc., No. 99 Civ. 3851 (VM)
2001 WL 225028 *4 (S.D.N.Y. Mar. 6, 2001) (internal quotation marks omitted).
Defendants' assertions that the vessel was seaworthy are belied by their own evidence of absent maintenance reports and needed repairs. They admit that there was a failure in the vessel's transmission. Whether it was due to a broken cotter pin that prevented the throttle control cable from operating properly or some other transmission defect, the vessel was arguably not fit to make its journey.
Plaintiff provides some evidence that the vessel was unseaworthy in that it had mechanical problems prior to the date of the collision, previous complaints were made about a transmission cable failure on the vessel, and inadequate investigations were performed to determine any defect. See Pl.'s St. at ¶¶ 43, 44. He contends that there is no "proof as to what caused the port transmission to stick in forward gear in a situation where an investigation would be expected." Pl.'s Opp. at 9.
D. Limitation of Vessel Owner's Liability Act
The Limitation of Liability Act provides in pertinent part, "the liability of the owner of a vessel for any claim, debt, or liability . . . shall not exceed the value of the vessel and pending freight. . . . Claims subject to limitation . . . liabilities . . . are . . . any . . . loss, damage, or injury by collision, or any act, matter, or thing, loss, damage, or forfeiture, done, occasioned or incurred without the privity or knowledge of the owner. See 46 U.S.C. § 30505(a), (b) (emphasis added).
"Privity or knowledge" is a "term of art meaning complicity in the fault that caused the accident." See Messina, 574 F.3d at 126 (quoting Blacker v. F. Jacobus Transp. Co., 243 F.2d 733, 735 (2d Cir. 1957)). In the case of a corporate owner, "liability may not be limited (where the negligence is that of an executive officer, manager or superintendent whose scope of authority includes supervision over the phase of the business out of which the loss or injury occurred.)" Barberi, 475 F.Supp.2d at 239 (quoting Coryell v. Phipps, 317 U.S. 406, 408 (1943)).
Whether a defendant is entitled to limit liability requires a two-part inquiry. The trier must determine if the accident was caused by defendant's negligence. If negligence is shown, the vessel owner must prove that the negligence occurred without its privity or knowledge. Barberi, 574 F.3d at 126-27. "Privity like knowledge turns on the facts of particular cases." Coryell, 317 U.S. at 411.
When an injury occurs because of the owner's neglect of its duty to use proper care in providing a competent crew and seaworthy vessel, the owner is privy to the negligence. See Tug Ocean Prince, 584 F.2d at 1155. As already noted, plaintiff has provided sufficient evidence to raise a genuine issue as to the competence of the Marguerite captain and seaworthiness of the ship as well as the negligence of the Vice President of Operations when he ordered a return of the vessel to the pier at Staten Island before providing Haney with medical care. Control by Miller's headquarters was sufficient to indicate knowledge on the part of an executive in charge.
The nature of the vessel's voyages — providing taxi service over the New York ports' waterways — suggests the opportunity for more detailed control by the owner and responsibility
of its executives, who were virtually on the scene, to supervise the vessel's ongoing seaworthiness more closely than if the vessel were on the high seas. The underlying theory of limited liability as a policy to encourage investment in risky, long sea voyages has little relevance to the Marguerite's meanderings within New York harbor, in sight of its home port.
Limitation of liability has not been established.
E. Maintenance and Cure
1. Generally
Maritime law provides for maintenance and cure payments to a seaman who falls ill or becomes injured while in service of the vessel. See Farrell v. United States, 336 U.S. 511 (1949). "Maintenance" refers to the obligation of a shipowner to provide food and lodging, comparable to that received aboard a vessel. See Marcic v. Reinauer Transp. Companies, 397 F.3d 120, 129-30 (2d Cir. 2005). "The right to maintenance does not depend on the shipowner's fault or the job-relatedness of the seaman's injury[;]" tort law rules of contributory negligence, comparative fault, assumption of risk and unseaworthiness do not apply. Id. (citing Vella v. Ford Motor Co., 421 U.S. 1, 4 (1975)); Ammar v. United States, 342 F.3d 133, 142 (2d Cir. 2003); see also McMillan v. Tug Jane A. Bouchard, 885 F.Supp. 452, 459 (E.D.N.Y. 1995). "The shipowner's obligation to pay maintenance lasts until the seaman has recovered or his condition is declared permanent and incurable." Marcic, 397 F.3d at 130; Vella, 421 U.S. at 5; Ammar, 342 F.3d at 142.
"Cure" refers to payments for all aspects of the seaman's medical care until he reaches the maximum practicable medical cure. See McMillan, 885 F. Supp. at 459. The sailor bears the burden of persuasion to prove his or her right to maintenance and cure. Id.; see also Carlsson v. United States, 252 F.2d 352, 353 (2d Cir. 1958) ("[T]he right to maintenance and cure may continue to exist, even after periods of work, or the granting of a fitness certificate, until maximum rehabilitation has been attained."). Once a seaman establishes his right to payments, the burden shifts to the shipowner to prove that the injured employee has reached a point of maximum medical cure. McMillan, 885 F. Supp. at 459, 460. "Maximum medical cure" is achieved when the seaman recovers from the injury, the condition permanently stabilizes or cannot be improved further. Id. at 459. "Any doubts or ambiguities relating to maintenance and cure must be resolved in favor of the seaman." Id. at 460.
Historically, maintenance payments were determined by "taking into account all relevant circumstances, such as the somewhat equivalent costs for housing and food ashore as well as regional differences in prices in the United States." Ammar, 342 F.3d at 143 (citation omitted). From 1940 to 1970 the standard payment was $8 per day. Id. Collective bargaining agreements ("CBAs") between vessel owners and seamen's unions set rates at the same amount. Later, rates varied among CBAs from $10 per day to $15 and $30 per day. Id. These rates seem absurdly low in view of today's costs of living.
As its name suggests, maintenance was originally designed to provide sustenance to a crew member placed ashore while the ship sailed on. The above figures suggest it is now somewhat attenuated for that purpose by long-term inflation. But, while its amount may have shrunk in relative value, its duration remains the period when medical treatment is called for.
2. Pain
The Court of Appeals for the Second Circuit appears not to have specifically ruled recently on whether payments to relieve pain and suffering are appropriate under the maintenance and cure doctrine. On occasion courts in this circuit have held that a sailor was entitled to curative, but not palliative treatment for pain. Those decisions rely on precedent that is somewhat ambiguous on the issue. See, e.g., McMillan, 885 F.Supp. at 461 ("The rule of law which must be applied in this Circuit dictates that as long as the seaman's condition is susceptible to curative as opposed to palliative treatment, the shipowner is liable for maintenance and cure.") (citing Berke v. Leheigh Marine Disposal Corp., 435 F.2d 1073, 1076 (2d Cir. 1970)); Desmond v. United States, 217 F.2d 948, 950 (2d Cir. 1954), cert. denied, 349 U.S. 911 (1955); Vella v. Ford Motor Corp., 421 U.S. at n. 4; Nasser, 191 F.Supp.2d at 317 (allowing payment for "all reasonable medical curative (i.e. not palliative) expenses incurred", citing McMillan, supra, at 461).
The Supreme Court has not squarely addressed the issue of whether "cure" encompasses palliative care. In Vella the Court held that a shipowner's duty to provide maintenance and cure ends when medical diagnosis is made that the seaman's injury was permanent and incurable. 421 U.S. at 5-6. It expressly reserved decision on the issue of payment for pain and suffering. "[I]t is not necessary to address the question whether the jury award might also be sustained on the ground that the shipowner's duty in any event obliged him to provide palliative medical care to arrest further progress of the condition or to reduce pain, and we intimate no view whatever upon the shipowner's duty in that regard." Id. at 6, n. 4; see also Farrell v. United States, 336 U.S. 511 (1949) (permanently disabled seaman not entitled to maintenance and cure payments after his condition was diagnosed as hopeless).
In Berke, the Court of Appeals for the Second Circuit held that treatment for aggravated bronchitis was not part of the vessel owner's "cure" obligation because it would only "relieve the symptoms but would not permanently improve the condition." 435 F.2d at 476. Though it considered and rejected the Third Circuit's now overruled position that "cure" covers payments for pain relief, see id. n. 3, the Court of Appeals for the Second Circuit issued no specific holding regarding the validity of payments for pain and suffering.
Maintenance and cure, on the grounds that a condition was incurable, were denied in Desmond. 217 F.2d at 950 ("If incurable, the shipowner has no further liability, whether or not the patient requires additional treatment to restrain degeneracy or relieve pain."); see also Lindgren v. ShepardS.S. Co., 108 F.2d 806, 807 (2d Cir. 1940) (reversing judgment for maintenance and cure since treatments to prevent relapse do not "effectuate further cure"); Muruaga v. United States, 172 F.2d 318, 321 (2d Cir. 1949) (reversing a judgment for maintenance and cure to a victim of an incurable cardiovascular disease because treatment has provided "all the improvement to be expected in an incurable disease").
Apparently in the Second Circuit where a defendant's negligence aggravates a plaintiff's preexisting condition (causing plaintiff to experience new pain), defendant is liable in full for the treatment of the resulting pain. See Milos v. Sea-Land Serv. Inc., 478 F.Supp. 1019, 1023 (S.D.N.Y. 1979), aff'd without op., 622 F.2d 574 (2d Cir. 1980).
Courts in other circuits have held that treatment to relieve pain is "palliative" and does not support maintenance and cure payments since reduction of pain or its intensity does not affect the underlying medical problem. See, e.g., Whitman v. Miles, 387 F.3d 68 (1st Cir. 2004) ("[T]reatment that is more than simply palliative, and would improve [the seaman's] medical condition . . . is enough to support an award of maintenance and cure in aid of permanent improvement short of a complete cure. (internal quotations and citation omitted)); Cox v. Dravo Corp., 517 F.2d 620, 627 (3d Cir. 1975) (overruling Neff v. Dravo Corp., 407 F.2d 228 (3d Cir. 1975) (vessel and cargo owner are not required to insure against the cost of palliative or preventive care); Stanovich v. Jurlin, 227 F.2d 245, 246 (9th Cir. 1955) (holding "palliative" is not covered by meaning of "cure" since it is defined as "to ease without curing"); Lopinto v. Crescent Marine Towing, No. Civ.A. 02-2983, 2004 U.S. Dist. Lexis 13405 (E.D. La. Aug. 2, 2004); Sefcik v. Ocean Pride Alaska, 844 F.Supp. 1372, 1373 (D. Alaska 1993) ("A vessel owner must only pay for curative, as opposed to palliative, medical treatment."); see also, e.g., Robert Force, Admiralty and Maritime Law 90 (Fed. Jud. Center 2004) (citing Farrell v. United States, 336 U.S. 511 (1949), for the proposition that "an employer has no obligation to provide maintenance and cure payments for palliative treatments that arrest further progress of the condition or relieve pain once the seaman has reached the point of total disability"); Grant Gilmore Charles L. Black, Jr., The Law of Admiralty 299 n. 52b (2d ed. 1975) ("`Cure' in the phrase `maintenance and cure' originally meant `care.' One of the odd by-products of the Farrell case is that the meaning of `cure' has now shifted to that of recovery from disease or injury."). Gilmore and Grant explain that Farell, does not create,
any time limit on the duration of the shipowner's liability, so long as there is a chance of improvement in the claimant's condition. The majority opinion in Farrell seems to take the position that `cure' means improvement, or the possibility of improvement, and that Farrell could not recover medical expenses necessary to maintain him in his present condition without further deterioration.
Id. at 299.
Current general medical practice raises doubts about these hoary limitations on medical treatment to alleviate the kind of persistent pain and suffering Haney is allegedly experiencing. New theories on medical treatment for pain relief, and an evolving sense of the importance to doctors and patients of well-being and quality of life issues, include pain management. Palliative care is now encompassed in the notion of recovery and maximum improvement. The medical profession has a specialty for pain medicine and an association dedicated to fostering advocacy, research and training in the field. See American Academy of Pain Medicine ("AAPM") (representing physicians practicing in pain medicine). The AAPM notes that "[t]he practice of pain medicine is multi-disciplinary in approach, incorporating modalities from various specialties to ensure the comprehensive evaluation and treatment of the pain patient." See AAPM, Mission Statement, available at http://www.painmed.org/ (last visited Nov. 15, 2010) (indicating that pain medicine crosses numerous fields including anesthesiology, internal medicine, neurology, neurological surgery, orthopedic surgery, physiatry (rehabilitation physicians who treat nerve, muscle, and bone injuries), and psychiatry). Physicians note that "[p]ain is one of the most common reasons people seek medical care." Richard M. Mularski et. al., Measuring Pain as the 5th Vital Sign Does Not Improve Quality of Pain Management, 21 J. of Gen. Internal Med. 607, 607 (2006) ("[C]hronic pain has been estimated to be under treated in up to 80% of patients in some settings."). "Uncontrolled pain not only results in unnecessary suffering, but compromises the care of underlying diseases and can lead to depression, decreased enjoyment of life, and less productivity." Id.
When a patient is assessed for treatment at a medical facility it is now standard practice to measure the individual's pain along with his temperature, pulse, respirations and blood pressure. See Veterans Health Admin., Directive 2009-053: Pain Management, available at http://wwwl.va.gov/PAINMANAGEMENT/docs/VHA09PainDirective.pdf (last visited Nov. 15, 2010) (discussing "Pain as a Fifth Vital Sign" initiative); see also Mularski et. al, supra, at 611 ("Additional interventions are needed to improve providers [sic] awareness of patients' pain and to increase the rates at which they provide appropriate therapy."). See also, e.g., American Academy of Pain Management, Assessing and Treating Low Back Pain An Interview with Bruce Nicholson M.D., 15 The Pain Practitioner 3, 17-21 (Fall 2005) (discussing numerous treatment options for back pain including medical, surgical and other non-invasive therapies); Sepulveda et. al., Palliative Care: The World Health Organization's Global Perspective, 24 J. of Pain and Symptom Mgmt. 2 (Aug. 2002) (discussing importance of developing palliative care systems to improve quality of life of sick and injured); Pub.L. No. 106-386 (Oct. 28, 2001) (declaring the calendar decade beginning in January 1, 2001 the Decade of Pain Control and Research).
One problem with compensation for pain is that so much of it is subjective and incapable of a precise objective evaluation. See, e.g., Marcia L. Meldrum, A Capsule History of Pain Management, 290 J. of the Am. Med. Assoc. No. 18, Nov. 12, 2003 at 2470 (2003) ("Pain is a complex clinical problem. Assessment depends on verbal report, and the patient's physical perceptions may be modified by cognitive and affective factors.").
The cost of maritime insurance may possibly be increased by a change of law to include pain alleviation in "cure." The same issue exists with respect to compensation for injuries and tort law generally. There appears no reason why adequate control against excessive recoveries cannot be provided in admiralty cases.
Whether pain is included in medical treatment may be a question of fact for the jury. It is time to reconsider the old rule, now out of the main stream of medical practice. In any event, the probable need for further surgery suggests that in the instant case treatment may not have been completed even in its traditional sense.
3. Additional Treatment
Miller has paid Plaintiff approximately $38,000 in maintenance and cure. Defs.' Mem. at 15. Its expert examined Haney and determined that he had reached maximum medical cure and was fit to return to work. Id.; see also, Defs.' Ex. 9 at 8, 14 (Report of Dr. Head and Report of Dr. S.W. Bleifer). Plaintiff seeks additional payments for spinal surgery. See Pl.'s Opp. at 12. Plaintiff's treating physician stated that his medical condition, degenerative disk disorder, would improve with such surgery. Id.; see also, Pl. Ex. L (Report of Dr. Chang). Surgery has been delayed because Miller does not believe it is required under the routine maintenance and cure doctrine. See Pl.'s St. at ¶¶ 59, 60. There is also a question of whether Haney's preexisting disk disorder is unrelated to the accident, ( see Def. Ex. 9), or whether the accident exacerbated a preexisting condition. See Pl. Ex. L. Plaintiff's treating physician indicates that Haney's pain and the back condition were precipitated by the accident, noting that plaintiff never complained of prior symptoms. See id. These questions of fact require a trial.
V. Conclusion
Defendant's motion for summary judgment is denied.
SO ORDERED.