United States Court of Appeals
For the First Circuit
No. 03-1696
PETITION OF RJF INTERNATIONAL CORPORATION FOR EXONERATION
FROM OR LIMITATION OF LIABILITY, CIVIL AND MARITIME.
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APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Stahl, Senior Circuit Judge.
Thomas E. Clinton with whom Clinton & Muzyka, P.C. was on
brief for petitioner, appellant RJF International Corporation.
Howard B. Klein with whom John S. Foley and Decof & Decof were
on brief for claimant, appellee Kimberly Moody Hanna, as legal
guardian of James Avery.
January 8, 2004
BOUDIN, Chief Judge. On August 11, 2001, James Avery,
then 18 years old, was employed on the M/V Reflections, a yacht
docked in Newport, Rhode Island. In the course of his duties, he
fell from the yacht, struck his head on the dock, and fell into the
water. Before his rescue, he spent 7 to 10 minutes under water.
The result was anoxic brain injury--anoxic refers to the lack of
oxygen--so severe that his life was despaired of.
By the time of his discharge from the last of several
hospitals (in March 2002), Avery could not speak intelligibly but
could follow commands, respond to questions by closing his eyes,
make sounds, and was starting to use his head and chin to activate
assistive equipment. His doctors then formulated plans for further
rehabilitation, opining that more cognitive and functional progress
was possible. They contemplated that Avery would be given
inpatient treatment at a specialized institute in Chicago and then
receive further outpatient day treatment at a Florida facility.
During this time, the vessel owner had paid heavily for
Avery's medical expenses as part of its obligation to provide
maintenance and cure for an injured seaman. See Calmar S.S. Corp.
v. Taylor, 303 U.S. 525, 527-29 (1938). Obtaining its own medical
evaluation, the vessel owner concluded that Avery now suffered from
permanent conditions that were beyond its responsibility under the
maintenance and cure doctrine. When the owner refused to fund the
new treatment plan, Avery's guardian filed a motion to compel
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payment, and the owner cross moved to terminate maintenance and
cure benefits. Both motions were filed in the context of an
admiralty proceeding that had been initiated by the owner on
December 12, 2001, to limit its liability with regard to this
incident. 46 U.S.C. app. §§ 181-196 (2000); Rule F of the
Supplemental Rules for Certain Admiralty and Maritime Claims of the
Federal Rules of Civil Procedure.
The district court held an evidentiary hearing in April
2003, receiving on Avery's behalf deposition testimony from Avery's
treating physicians and his mother, and Avery's medical records;
the owner offered testimony from a neuro-psychologist and a letter
from a neurologist. On May 7, 2003, the district court issued a
decision granting Avery's motion to order further care and denying
the owner's motion. In re RJF Int'l Corp., 261 F. Supp. 2d 101,
106-07 (D.R.I. 2003). The court found that Avery had not yet
reached a point of "maximum medical recovery" and that therefore
the obligation to provide maintenance and cure continued. Id. at
105-06.
On this appeal, the owner makes three different
arguments. The first is that the district court misread the law
because it ordered maintenance and cure for one who now suffers
from brain damage and associated symptoms (e.g., spastic muscle
reactions) that are clearly permanent. This, says the owner, is
contrary to Farrell v. United States, 336 U.S. 511 (1949), Vella v.
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Ford Motor Co., 421 U.S. 1 (1975), and other cases limiting
maintenance and cure to the period in which the injured seaman is
moving toward recovery.1
When his condition has stabilized and further progress
ended short of a full recovery, the seaman may still have a remedy
to compensate him for his permanent injury,2 but is no longer
entitled to maintenance and cure. Thus, in Farrell the Court said
that maintenance and cure did not extend to ongoing medical care to
ease the pain of headaches and to control convulsions deemed
permanent conditions. 336 U.S. at 512-13, 519. In Vella, relief
from permanently recurring dizzy spells was denied, although the
shipowner was required to pay maintenance and cure up to the point
where the condition was medically diagnosed as permanent. 421 U.S.
at 2-6.
1
See generally Pelotto v. L & N Towing Co., 604 F.2d 396, 400
(5th Cir. 1979) ("Thus, where it appears that the seaman's
condition is incurable, or that future treatment will merely
relieve pain and suffering but not otherwise improve the seaman's
physical condition, it is proper to declare that the point of
maximum cure has been achieved."); Cox v. Dravo Corp., 517 F.2d
620, 623, 627 (3d Cir. 1975) (maintenance and cure payments not
required if additional treatment is only to "arrest further
progress of the disease or to relieve pain").
2
The traditional remedy for damages is based on the
unseaworthiness of the vessel under general maritime law; but a
statutory remedy for negligence under the Jones Act is also
commonly employed, 46 U.S.C. app. § 688 (2000); see Ferrara v. A.
& V. Fishing, Inc., 99 F.3d 449, 453-54 (1996), and Avery has
claims under both theories pending before the district court. In
re RJF, 261 F. Supp. 2d at 102 n.2.
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In this case, the difficulty for the owner is that the
district court recognized the fuzzy boundary between improvement
and palliation, but it found that the evidence showed that Avery
was still capable of improvement through continued treatment. In
re RJF, 261 F. Supp. 2d at 105-06. The testimony of Avery's
doctors is straightforward that further long-term improvement is
still possible, and even the competing diagnoses by the owner's
experts leave some room for such a conclusion. Certainly the
district court did not commit clear error on this issue of fact.
See Capone v. Boat St. Victoria, 1989 A.M.C. 1782, 1797 (D. Mass.
1989).
At some points in his main brief and oral argument,
counsel for the owner appears to suggest that the case law cuts off
maintenance and cure whenever a permanent condition exists,
regardless of whether its severity can be reduced. But this
reading would contradict repeated references in the case law to
maximum medical recovery as the dividing line. E.g., Vaughan v.
Atkinson, 369 U.S. 527, 531 (1962). In Farrell and Vella, there is
no indication that further improvement in the underlying condition
was the purpose of the care there sought. Farrell, 336 U.S. at
512-13; Vella, 421 U.S. at 2-3.
The owner's second argument on this appeal is that the
district court erred because the rehabilitation envisaged for Avery
is directed in part to coping with muscle spasticity and
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contractions. The owner says, with some support, that these are
mere symptoms of the permanent brain injury. He then argues,
blending this new argument into the old, that this shows that
curative treatment is no longer available and that any further
expenditure for Avery's rehabilitation is not properly one for
maintenance and cure.
But Avery's doctors clearly opined that he could make
further cognitive improvement as a result of treatment--not just by
the passage of time--and their testimony may also suggest that even
his muscle ailments can be permanently lessened. Certainly
evidence as to the former supports the district court's finding
that "further rehabilitation would be more than simply palliative,
and would improve his medical condition." In re RJF, 261 F. Supp.
2d at 105. This is enough to support an award of maintenance and
cure in aid of permanent improvement short of a complete cure.
Of course, the owner might have tried to distinguish
between curative treatment still possible and accompanying
palliative measures, and then argued that the cost of palliation
offered in the course of treatment should be segregated and
excluded from the owner's obligation. Some segregation would be
silly--imagine excluding pain medicine from the setting of a broken
bone--but perhaps in some settings a distinction might be drawn.
Such a distinction could matter because maintenance and cure is
exempt from the limitation of liability rules in admiralty.
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Brister v. A.W.I., Inc., 946 F.2d 350, 360-61 (5th Cir. 1991); see
also Gilmore & Black, The Law of Admiralty, at 901-02 (2d ed.
1975).
However, in this court the owner has adopted an all or
nothing approach (although it appears that it did attempt to make
a segregation argument in the district court). It is not our task
to devise alternative arguments that have not been pressed on
appeal. Indeed, such a segregation argument in this case would
involve both legal and factual issues of some complexity which
neither side has briefed.
Similarly, the owner's claim that the maintenance and
cure award should be curtailed because Avery was allegedly eligible
for Medicare was not presented in timely fashion in the district
court; before the hearing, the owner argued only that medical
insurance would cover palliative care, adding tersely that Avery
was "also entitled to Medicare or Medicaid." The present claim was
raised only in a closing brief intended to sum up after the hearing
and not to raise new issues. Thus this argument too must await
another day.
Affirmed.
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