THE growing normality of life at sea is bringing into question legal traditions of having seamen regarded as "wards of the admiralty court"
Normality of life at sea casts doubt on rights to hijinks in days of yore
THE growing normality of life at sea is bringing into question legal traditions of having seamen regarded as "wards of the admiralty court" with regard to injuries sustained on shore leave with liability assigned to the employer.
An article in The Arbitrators, published by the Society of Maritime Arbitrators and conveyed by New York's Maritime Advocate, said "seamen have traditionally been treated with the tenderness of a guardian".
"As a 'protected' class, seamen have been afforded remedies in the most bizarre circumstances, from jumping out a brothel window ashore, to taking a fall while cavorting in a shoreside dance hall," writes James Mercante, a lawyer with New York law firm Rubin, Fiorella & Friedman.
"Courts have allowed recovery against a shipowner under the Jones Act for even the slightest negligence or for breaching the general maritime law duty to provide a seaworthy vessel," Mr Mercante wrote.
"However, shipboard life today leads one to question whether the 'protection' of seamen is necessary in a high-tech world where ships are no longer made of wood and powered by sails," he said.
"Shipboard equipment and accommodations are greatly advanced; voyages are shorter, and ships contain most of the creature comforts of home. Nevertheless, there is no 'accident-free' ship and seamen still get injured. An injured seaman also has the right to recover 'maintenance' and 'cure' expenses under maritime law from the employer," he said.
"'Maintenance' is the right of a seaman to food and lodging if he or she falls ill or becomes injured while in the service of the ship or while subject to the call of duty. 'Cure' is the right of the seafarer to have medical expenses covered," Mr Mercante said.
The reasoning is that while a seaman is employed, eating and sleeping aboard a vessel, he will not incur any expenses for food and lodging. Therefore, if he is required to leave the ship as a result of injury, the seaman's expenses of food and lodging will be covered by the employer.
"The shipowner's obligation to reimburse is based on the employment relationship. Under the general maritime law, an action for maintenance and cure may be maintained if the injury or illness occurs on shore leave," Mr Mercante said,
"To be eligible, the seaman must be "in the service of the ship at the time of the illness or injury" or otherwise subject to the call of duty," he said.
According to a 1943 court ruling, "shore leave is an elemental necessity in the sailing of ships, a part of the business as old as the art, not merely a personal diversion". The dynamic combination of seamen being treated as 'wards' of the court and in the service of the ship have coupled to allow a seaman to recover maintenance expenses in circumstances that would not apply to a shore job.
In 1951, the US Supreme Court allowed 'maintenance' to a seaman found to be in the service of the ship while ashore drinking alcohol when he leaned out and fell from an unprotected dance hall balcony.
In 1948, a New York court afforded recovery to a seaman found to be in the service of the ship while on shore leave in Yugoslavia visiting a prostitute. He was locked in the prostitute's room when he changed his mind about why he was there and refused to pay. He was injured when he jumped from her window to escape," Mr Mercante said.
The seaman recovered maintenance and cure despite the shipowner's argument that he was not entitled to sue because of his "immoral intent".
Said Mr Mercante: "The judge disagreed and found that courts had been liberal in their attitude towards seamen who received injuries on shore leave through their 'notorious penchants' so long as it did not stem from intoxication or deliberate acts of indiscretion."
