When a member of your crew says they’re sick, you probably assume that the crewmember’s health insurance covers any treatment that might be needed.
It’s also likely that you would never think to turn in a claim to your vessel’s ocean marine Protection and Indemnity (P&I) policy.
In 2009, the U.S. Supreme Court ruled that anyone not treating a crew illness under general maritime law as a maintenance and cure claim is required to pay punitive damages to the ill crewmember. Moreover, these damages are not covered by any ocean marine policy. So, the money comes from your pocket.
The June 2009 ruling was based on Atlantic Sounding Company v. Townsend (http://www.supremecourt.gov/opinions/08pdf/08-214.pdf) when a crewperson was ill but the employer allegedly ignored the fact that there was compensation due the crewperson for cure (medical bills).
Under general maritime law a crew person “in service of the ship” is due maintenance and cure if they’re injured or ill. This is far different from shore-based workers’ compensation where only employee injury (not illness) is compensable.
Maintenance and cure has been around for hundreds of years and has been the law of the sea from when trading vessels would sail for months and even years. The logic behind it was that crews were needed to keep the vessel working regardless of what might slow it down. Thus, crews were allowed both injury and illness “maintenance and cure.”
What can we learn from this? If a crewmember tells you they are ill or has been injured, I strongly suggest that you submit a claim as soon as you can to your ocean marine insurance agent. Then the agent can file a claim for you under your vessel’s P&I coverage.
This will cover at least two things. First, it will prevent you from possibly being sued under maintenance and cure thus saving you a potential punitive damage award against you. Second, if the claim goes bad and you end up defending a Jones Act negligence claim, you’ll have already satisfied the “notice of claim clause” on your ocean marine insurance policy.
Hopefully, I have saved you a ton of grief.