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Brown Water Seamen and the Stowaway Virus: Coronavirus Precautions

April 23, 2020

When one thinks of the seamen of old or of modern times, images of sailing across the deep, blue ocean between continents on wooden sailing ships or, perhaps, making long voyages on ultra-large container vessels comes to mind.  These “blue water” seamen, however, constitute only a small fraction of the crews that work onboard the vessels that make our economy run.  Most vessels ply the waters closer to home, including tug boats, tow boats, pilot boats, derrick barges, barges, dredges, ferries, and patrol boats.  The maritime industry often refers to the crews of these vessels as “brown water” seamen, or, in certain cases, as “commuter” seamen.  Unlike blue water seamen, who live aboard large vessels for extended periods of time, brown water seamen generally work in tight quarters with fellow crewmembers on smaller vessels and return home after much shorter voyages.  In fact, many commuter seamen can return home after a hard day of work.

Although blue water seamen and brown water seamen have different voyage lengths and types of vessels on which they crew, they both share the ancient right of “maintenance and cure.”  Under the principles of general maritime law, employers owe this deep-rooted form of contractual compensation to seamen who fall ill or are injured while in the service of the employer’s vessel, regardless of fault.  “Maintenance” requires the employer to provide food and lodging to an injured or ill seaman.  “Cure” requires that they pay for therapeutic, medical, and hospital expenses until a seaman reaches the point of maximum cure.  An employer who fails to provide this compensation can, in some cases, be forced to pay substantial punitive damages as well as the seaman’s attorney fees.

In this time of Coronavirus, brown water employers should carefully consider when their obligations to provide maintenance and cure may arise.  Legal precedent in cases involving West Nile Disease, bacterial infections, encephalitis, venereal disease, toxin exposure, lymphoma, and myositis provide some guideposts towards reaching an answer.  In those cases, courts have consistently recognized that a shipowner must pay maintenance and cure for any illness that occurred, was aggravated, or manifested itself while the seamen was in the ship’s service. 

Employers should be most concerned about the legal interpretation of “manifestation” given the more frequent shore leave between voyages enjoyed by brown water employees and the tighter work spaces onboard their vessels. Like many other viruses, Coronavirus has an extended incubation period and an infected individual may not show any symptoms for weeks, if at all.  Given lengthy incubation periods, a brown water seaman who looks and feels healthy upon entering the workplace or boarding his assigned vessel may still carry a stowaway virus.  Working in tight quarters, such a carrier-crewman could infect some or all of the remaining crew.  For the purpose of maintenance and cure, it does not matter that the carrier-crewman contracted the virus during a shore leave and while doing nothing in the service of his employer’s vessel.  The employer’s duty to pay maintenance is triggered when a seaman first manifests symptoms while in service of the employer’s vessel.  When a carrier-crewman first manifests symptoms during the voyage but contracted the virus while on leave, a reasonable standard should apply to how long the maintenance and cure continues.  However, if the carrier-crewman infects fellow crew members during the voyage, the brown water employer (and its insurance carrier) could find itself paying maintenance and cure for a much longer period in a bruising financial cycle as the stowaway virus spreads through the entire fleet.

Seamen have a legal obligation to report to their employer at the start of a voyage if they do not feel fit for duty.  Employers who choose to simply rely upon this legal obligation will likely find themselves in a maintenance and cure whirlwind and should adopt proactive procedures.  Maritime employers have avoided paying maintenance and cure by proving that the employee willfully concealed an illness or that the employee engaged in intentional misconduct.  Brown water employers should keep these defenses in mind during the current Coronavirus pandemic and, when feasible, should have each potential crewmember complete and endorse a written pre-voyage screening report.  If necessary, this can be accomplished via remote computer access.  Each seaman should complete the report at the outset of a voyage and before contact with other crewmembers. The report should include a section requiring the seaman to explain in detail all public activities performed during his or her shore leave.  The report should include a list of Coronavirus symptoms obtained from a qualified health care professional and should ask each crewman if he or she has experienced any of the symptoms while on shore leave.    The report should ask each crew member to identify any contact made with anyone diagnosed with Coronavirus or who has displayed any of the symptoms of the illness.  These completed screening reports can be used to prevent potential Coronavirus carriers from boarding the vessel, and, if a crewman-carrier does get on board, his report can also go a long way in establishing any willful concealment of medical conditions.  Additionally, if the crewmember fails to accurately detail his public activities during shore leave, then the employer can use the report to establish the employee’s intentional misconduct during shore leave should ill-advised public activities later come to light.  By taking such precautions, maritime employers not only stop potential maintenance and cure concerns before they arise but also protect themselves against an influx of unseaworthiness and Jones Act claims from healthy seamen infected by a stowaway virus.

Tom Berkley is a Pender & Coward attorney focusing his practice on maritime and waterfront law.