Messier v. Bouchard Transp.

• Decision Date: 15 August 2012
• Docket Number: Docket No. 10–5181–cv.
• Citation: 688 F.3d 78
• Parties: Richard MESSIER, Plaintiff–Appellant, v. BOUCHARD TRANSPORTATION, Defendant–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

688 F.3d 78

Richard MESSIER, Plaintiff–Appellant,

v.BOUCHARD TRANSPORTATION, Defendant–Appellee.

Docket No. 10–5181–cv.

United States Court of Appeals, Second Circuit.

Submitted: Dec. 2, 2011.

Decided: July 20, 2012.

Amended: Aug. 15, 2012.

Dennis M. O'Bryan, O'Bryan Baun Karamanian, Birmingham, MI, for Plaintiff–Appellant.

John J. Walsh, Freehill Hogan & Mahar LLP, New York, NY, for Defendant–Appellee.

Before: HALL, LYNCH, and LOHIER, Circuit Judges.

HALL, Circuit Judge:

Plaintiff–Appellant Richard Messier, a seaman, contracted lymphoma and sued his former employer, Defendant–Appellee Bouchard Transportation Co., Inc. (“Bouchard”), seeking maintenance and cure.¹ Undisputed evidence establishes that Messier had lymphoma during his maritime service. But it is also undisputed the disease did not present any symptoms at all until after his service. After concluding Messier's lymphoma did not “manifest” itself during his service, the district court (McMahon, J.) granted summary judgment for Bouchard.

The first presentation of symptoms, however, is not the touchstone for maintenance and cure. If a seaman's injury or illness occurs during his service, he is entitled to maintenance and cure regardless of when he starts to show symptoms. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse the district court's grant of summary judgment for Bouchard and remand the case with instructions to enter partial summary judgment for Messier.

I. Background

This case's facts are not materially in dispute.² Messier, a career tugboat seaman, was hired by Bouchard in March 2004. In September 2005, he was assigned to work on a Bouchard vessel called the tug Evening Mist. He served at least two three-week “hitches” between September and October 2005. Messier claims that on the evening of October 23, 2005, while in service, he fell climbing down a ladder, and suffered back pain. He sought medical care, and was diagnosed with a “probable back sprain.”

Messier's back injury was apparently minor, and the pain associated with it quickly subsided. But the resulting medical examinations revealed a much more serious problem. During the course of Messier's examination, his doctor had ordered routine blood tests, which showed an elevated level of creatinine in Messier's blood. For a week Messier's creatinine levels rose dramatically, and his doctor sent him to the emergency room on November 4, 2005, to be treated for renal failure. The symptoms subsided and Messier was released, but doctors performed more tests, trying to discover why his kidneys had failed. In late December 2005, two months after his service on the Evening Mist ended, Messier was diagnosedwith B-cell lymphoma. He underwent treatment, and did not return to work until October 2006.

Messier filed this complaint in federal district court in November 2008, asserting claims for negligence under the Jones Act, and for unseaworthiness and maintenance and cure under general maritime law. The parties cross-moved for summary judgment on maintenance and cure after Messier dropped his other claims. Although the district court concluded that, for the purposes of summary judgment, Messier's lymphoma existed while he was employed on the Evening Mist, it held that Messier was not entitled to maintenance and cure as a matter of law because his lymphoma did not “manifest” itself, i.e., did not present symptoms, while Messier was in service of the ship. Accordingly, the district court granted Bouchard's motion for summary judgment and dismissed the case.³

Messier timely appeals.

II. DiscussionA. Standard of Review

We review an order granting summary judgment de novo, Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir.2011), applying the same standard as the district court, see Breeden v. Kirkpatrick & Lockhart LLP (In re Bennett Funding Group, Inc.), 336 F.3d 94, 99 (2d Cir.2003). Summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). We “examin[e] the evidence in the light most favorable to, and draw[ ] all inferences in favor of, the non-movant.” Sheppard v. Beerman, 317 F.3d 351, 354 (2d Cir.2003).

B. Maintenance and Cure

“A claim for maintenance and cure concerns the vessel owner's obligation to provide food, lodging, and medical services to a seaman injured while serving the ship.” Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 441, 121 S.Ct. 993, 148 L.Ed.2d 931 (2001). The doctrine entitles an injured seaman to three district remedies—maintenance, cure, and wages. See Rodriguez Alvarez v. Bahama Cruise Line, Inc., 898 F.2d 312, 315–16 (2d Cir.1990). “Maintenance” compensates the injured seaman for food and lodging expenses during his medical treatment. Id. at 316. “Cure” refers to the reasonable medical expenses incurred in the treatment of the seaman's condition. See Reardon v. Cal. Tanker Co., 260 F.2d 369, 371–72 (2d Cir.1958). And lost wages are provided in addition to maintenance, on the rationale that “maintenance compensates the injured seaman for food and lodging, which the seaman otherwise receives free while on the ship.” Rodriguez Alvarez, 898 F.2d at 316.

“The obligation to provide maintenance and cure payments,” however, “does not furnish the seaman with a source of lifetime or long-term disability income.” Robert Force, Federal Judicial Center, Admiralty and Maritime Law 89 (2004). A seaman is entitled to maintenance and cure only “until he reaches maximum medical recovery.” Vaughan v. Atkinson, 369 U.S. 527, 531, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962). Put another way, “maintenance and cure continues until such time as the incapacity is declared to be permanent.” Vella v. Ford Motor Co., 421 U.S. 1, 5, 95 S.Ct. 1381, 43 L.Ed.2d 682 (1975) (quotation marks omitted). “However, where a seaman has reached the point of maximum medical cure and maintenance and cure payments have been discontinued, the seaman may nonetheless reinstitute a demand for maintenance and cure where subsequent new curative medical treatments become available.” Force, supra, at 90; see also Farrell v. United States, 336 U.S. 511, 519, 69 S.Ct. 707, 93 L.Ed. 850 (1949).

Maintenance and cure is an “ancient duty,” Calmar Steamship Corp. v. Taylor, 303 U.S. 525, 527, 58 S.Ct. 651, 82 L.Ed. 993 (1938), which traces its origin to medieval sea codes, “and is undoubtedly of earlier origin,” 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 6–28 (5th ed. 2011). See generally John B. Shields, Seamen's Rights to Recover Maintenance and Cure Benefits, 55 Tul. L.Rev. 1046, 1046 (1981) (describing how the doctrine was codified as early as 1338 in the Black Book of the Admiralty). The duty “arises from the contract of employment” and “does not rest upon negligence or culpability on the part of the owner or master.” Taylor, 303 U.S. at 527, 58 S.Ct. 651. In that respect, maintenance and cure has been called “a kind of nonstatutory workmen's compensation.” Weiss v. Cent. R.R. Co. of N.J., 235 F.2d 309, 311 (2d Cir.1956).

The analogy to workers' compensation, however, can be misleading, because maintenance and cure is a far more expansive remedy. First, although it is limited to “the seaman who becomes ill or is injured while in the service of the ship,” Vella, 421 U.S. at 3, 95 S.Ct. 1381 (emphasis added), it is not “restricted to those cases where the seaman's employment is the cause of the injury or illness,” Taylor, 303 U.S. at 527, 58 S.Ct. 651. “[T]he obligation can arise out of a medical condition such as a heart problem, a prior illness that recurs during the seaman's employment, or an injury suffered on shore.” Schoenbaum, supra, at § 6–28. Second, the doctrine is “so broad” that “negligence or acts short of culpable misconduct on the seaman's part will not relieve the shipowner of the responsibility.” Vella, 421 U.S. at 4, 95 S.Ct. 1381 (alterations and quotation marks omitted). Third, the doctrine may apply even if a seaman is injured or falls ill off-duty—for example, while on shore leave, see Warren v. United States, 340 U.S. 523, 530, 71 S.Ct. 432, 95 L.Ed. 503 (1951)—so long as the seamen is “in the service of the ship,” which means he is “generally answerable to its call to duty rather than actually in performance of routine tasks or specific orders.” Farrell, 336 U.S. at 516, 69 S.Ct. 707 (quotation marks omitted). Fourth, a seaman may be entitled to maintenance and cure even for a preexisting medical condition that recurs or becomes aggravated during his service. See Sammon v. Cent. Gulf S.S. Corp., 442 F.2d 1028, 1029 (2d Cir.1971); compare Brahms v. Moore–McCormack Lines, Inc., 133 F.Supp. 283, 286 (S.D.N.Y.1955) (denying maintenance and cure when seaman submitted evidence showing his injury preexisted his service and recurred afterward, but did not submit any evidence showing that illness existed during his service).

The policy underlying a broad maintenance and cure doctrine is “the almost paternalistic duty” admiralty law imposes on a shipowner toward the crew. Garay v. Carnival Cruise Line, Inc., 904 F.2d 1527, 1530 (11th Cir.1990). As Justice Story famously explained:

Seamen are by the peculiarity of their lives liable to sudden sickness from change of climate, exposure to perils, and exhausting labour [sic]. They are generally poor and friendless, and acquire habits of gross indulgence, carelessness, and improvidence. If some provision be not made for them in sickness at the expense of the ship, they must often in foreign ports suffer the accumulated evils of disease, and poverty, and sometimes perish from the want of suitable nourishment. Their common earnings in many instances are wholly inadequate to provide for the expenses of sickness; and if liable to be so applied, the great motives for good behaviour [sic] might be ordinarily taken away by pledging their future as well as past wages for the redemption of the debt.... On...