11th Cir. Pattern Jury Instr. (Civil) 8.2

[Name of plaintiff] claims that, as a seaman, [he/she] is entitled to recover

what the law calls “maintenance and cure.” This claim is completely separate from

[name of plaintiff]’s Jones Act and unseaworthiness claims, and you must decide it

entirely apart from your decision on those claims.

[The three claims’ only common element is [name of plaintiff]’s seaman

status. The test for seaman status is the same for all claims. So if [name of

plaintiff] has proved [his/her] employment as a seaman on the accident’s date for

purposes of the other claims, then you must find that [he/she] is a seaman for

purposes of maintenance and cure. But if you find that [name of plaintiff] was not

a seaman for the other claims, you must also find that [name of plaintiff] isn’t

entitled to maintenance and cure.]

“Maintenance and cure” is provided to a seaman who is disabled by injury or

illness while in the ship’s service. It includes medical care and treatment and the

means of maintaining one’s self during the convalescence period.

A seaman is entitled to maintenance and cure even if the seaman is unable to

establish that an injury was a result of any negligence by the employer or an

unseaworthy condition on the vessel. Generally, to recover maintenance and cure,

[name of plaintiff] must show only that an injury or illness occurred while [he/she]

was in the service of the vessel on which [he/she] was employed as a seaman and

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that the injury or illness occurred without [his/her] willful misbehavior. The injury

or illness doesn’t have to be work- related. It need only occur while [name of

plaintiff] is in the ship’s service. Neither maintenance nor cure can be reduced

because of any negligence on the part of the seaman. That [name of plaintiff] may

have assumed a risk by serving on the ship is not a defense to a claim for

maintenance and cure.

“Maintenance” means the cost of food, lodging, and transportation to and

from a medical facility. But a seaman isn’t entitled to maintenance for any time the

seaman is admitted as an inpatient in any hospital because the cure provided by the

employer through hospitalization includes the seaman’s food and lodging.

“Cure” includes the cost of medical attention, including hospitalization,

medicines, medical apparatuses, and the services of physicians, nurses, and other

medical professionals. But the employer doesn’t have a duty to provide cure

payments for any time during which a seaman is hospitalized in a United States

Marine Hospital, or in any other hospital at the employer’s expense.

A seaman is entitled to receive maintenance and cure from the date of

departure from the vessel until the seaman reaches the point of “maximum possible

cure” under the circumstances – that is, the point at which no further improvement

in the seaman’s medical condition is reasonably expected. The obligation usually

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ends when a qualified medical opinion states that the maximum possible cure has

been achieved.

The owner doesn’t ensure that a cure will be achieved. The date when a

seaman resumes employment is one factor you can consider to decide when a

seaman’s entitlement to maintenance and cure ends. If the evidence supports a

finding that the seaman was forced by economic necessity to return to work before

reaching maximum possible cure, you can consider that fact when determining the

date on which maintenance and cure should terminate.

It is important to note that if you find that [name of plaintiff] is entitled to an

award of damages under either the Jones Act or the unseaworthiness claims, and if

you include either loss of wages or medical expenses in the damage award, then

you can’t award maintenance and cure at all. Put another way, [name of plaintiff]

isn’t entitled to a double recovery. [Name of plaintiff] may recover for any willful

or arbitrary failure on the employer’s part to pay maintenance and cure when due.

When a defendant willfully and arbitrarily fails to pay maintenance or

provide cure to a seaman up to the time that the seaman receives maximum cure,

and the failure results in an aggravation of the seaman’s injury, the seaman may

recover damages for prolonging or aggravating [his/her] injury, pain and suffering,

additional medical expenses incurred because of the failure to pay, punitive

damages, and reasonable attorney’s fees and costs.

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