General maritime law provides that seamen who are hurt at sea are entitled to maintenance and cure. In addition, they are entitled to unearned wages, which will be explained below. At the same time, the defendant company may have some defenses to when they are obligated to pay maintenance and cure. One of these defenses that will be discussed in this article is the McCorpen (based on the case McCorpen v. Central Gulf Steamship from 1968) defense.
While it is generally considered logical that someone only gets paid if he or she “earned” the payment, maritime law involves the concept of unearned wages. That is to say, if someone is aboard a ship and is injured and therefore unable to work, he or she gets paid based on how much he or she could have earned for the rest of the journey. For instance, if it was expected that the journey would last six weeks and the plaintiff was injured during the second week, the plaintiff would be entitled to payment for all six weeks.
Computing unearned wages is based on the expectation of what that person would have worked. A court, in calculating the unearned wages, would look at how much the plaintiff worked during this journey, the expectations and limitations of the employment, and also consider the plaintiff’s previous work history. The most relevant previous work history would be what the plaintiff worked within the maritime industry.
In addition to unearned wages, plaintiffs will often ask for unearned overtime wages. Similar to above, a court would make an analysis of the plaintiff’s work history, the parameters of the current position and the plaintiff’s work history on this voyage. It is generally more difficult to obtain unearned overtime wages than plain unearned wages.
Often, when a plaintiff sues an employer for maintenance and cure under general maritime law, the employer will claim that the plaintiff was not forthcoming with his or her medical conditions and therefore not entitled to maintenance and cure. They will claim that the plaintiff should not get maintenance and cure because he or she secured a demanding physical job through fraudulent measures.
Employers will often look at medical records and what the record shows from the medical examination before the voyage. They will then present the discrepancies to a court.
To determine whether a plaintiff can nonetheless obtain maintenance and cure in a maritime context under these circumstances, circuit courts are split as to whether the employer can utilize a defense. Some Courts apply a strict rule that the employer has a legitimate defense when a plaintiff is not forthcoming with medical information and the employer can therefore legally not pay maintenance and cure to the plaintiff because the plaintiff was fraudulent.
Other Courts utilize a different test. The test is whether the seaman holding back the undisclosed fraudulent condition should have known that it is material his or her employment. Consequently, not being forthcoming will not automatically mean that the plaintiff loses maintenance and cure.
Have you been hurt in a maritime accident? Speak with the Kolodny law firm, a maritime injury law firm.
(image courtesy of Elijah Hiett)