United States Court of Appeals,
Fifth Circuit.
No. 95-30818.
Timothy Scott SILMON, Plaintiff-Appellant,
v.
CAN DO II, INC., Defendant-Appellee.
July 25, 1996.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before KING, DAVIS and EMILIO M. GARZA, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Appellant, a member of the crew of the M/V CAN DO II, appeals
the dismissal of his maintenance and cure claim which the district
court rejected because his illness was due solely to his own
willful misconduct. We affirm.
I.
On October 15, 1990, Timothy Scott Silmon began employment as
a crew member aboard the M/V CAN DO II, a vessel owned by
defendant, Can Do II, Inc. For the first ten days, Silmon
performed his work without incident. On the evening of October 24,
1990, Silmon was transferring supplies, including leftover food and
a five gallon jug of water, from an offshore platform's boat deck
to another crewman standing on the vessel's stern. The food was
transferred without incident. When Silmon tried to hand the bottle
of water to his fellow crew member, the vessel fell in the swells.
When this occurred, Silmon testified that he lost his balance,
dropped the bottle of water to the vessel deck and felt pain in his
1
back. According to Silmon, he promptly reported his discomfort to
the captain and mate of the vessel and left his watch to lie down.
The captain and mate testified that Silmon did not report any pain
until the next morning and that he finished his watch. The next
morning, when he complained of excruciating pain in his back and
legs, he was evacuated by helicopter to an onshore clinic for
treatment. The doctor at the clinic in Cut Off, Louisiana, told
him to spend three to four days in bed.
When the pain did not subside with bed rest, Silmon went to
the West Jefferson Hospital Emergency room in Marrero, Louisiana.
Initially he was treated by Dr. Carl Culicchia, a neurosurgeon, who
made a preliminary diagnosis after initial tests that Silmon had
suffered a ruptured disc. Dr. Culicchia recommended surgery to
repair the ruptured disk which was performed on November 8, 1990.
During surgery, Dr. Culicchia discovered no disc defect but rather
an epidural abscess in Mr. Silmon's spine caused by a bacterial
infection. Dr. Culicchia consulted with Dr. Mark Workman, a
specialist in infectious diseases, who confirmed that plaintiff's
abscess was caused by a bacterial infection. Dr. Workman could not
culture the bacteria to identify the strain, probably due to the
antibiotics given Silmon prior to surgery. The abscess was removed
and Silmon was treated further with antibiotics. Even though his
condition improved, he continued to feel pain. Silmon consulted
Dr. David Jarrott at the recommendation of his attorneys. After
examining Silmon and his past records, Dr. Jarrott concluded that
his abscess was not due to a bacterial infection, but rather to a
2
ruptured intervertebral disc.
In February 1991 Silmon sued Can Do II, Inc., for damages
under the Jones Act and general maritime law and for maintenance
and cure. The Jones Act/general maritime law claims were tried to
a jury; the maintenance and cure claim was reserved for the court.
Can Do II, Inc., presented evidence demonstrating Silmon's
history of illegal drug use. Specifically, the defendant produced
hospital records showing intravenous drug use on two occasions:
May 1982 and January 1990. Silmon, however, was tested for drugs
at the commencement of his employment and on admission to the West
Jefferson Hospital and both those tests were negative. Although
the bacterial strain could not be identified to determine the
source of the infection, both Drs. Culicchia and Workman concluded
that Silmon's abscess from the bacterial infection was most likely
caused by his IV drug use. A third doctor, Dr. Conway, who was
originally hired by Silmon but testified for Can Do II, agreed with
Drs. Culicchia and Workman on the cause of Silmon's injury. The
doctors also testified that only in an unusual case would an
epidural abscess such as Silmon's be the result of a twisting back
injury. Dr. Jarrott testified for Silmon that the abscess was from
a ruptured disc caused by a twisting back injury.
The jury found that Silmon had no accident and exonerated the
employer in the Jones Act/general maritime law claims. The court
then dismissed all claims with prejudice and Silmon appealed to
this court. A panel of this court affirmed the judgment as to the
Jones Act/general maritime claims, but remanded the maintenance and
3
cure claim for findings of fact and conclusions of law. Silmon v.
Can Do II, Inc., No. 93-3416, 30 F.3d 1494 (5th Cir. filed July 22,
1994).
On remand, the district court made findings of fact and
conclusions of law and entered a judgment for Can Do II, Inc. on
Silmon's maintenance and cure claim. The court found that Silmon's
back injury was the result of a bacterial infection caused by
illegal IV drug use and that such drug use was willful misconduct
which forfeited his right to maintenance and cure. Silmon filed a
timely notice of appeal.
II.
We review the district court's findings of fact under a
clearly erroneous standard and its conclusions of law de novo.
Prudhomme v. Tenneco Oil Co., 955 F.2d 390, 392 (5th Cir.), cert.
denied, 506 U.S. 826, 113 S.Ct. 84, 121 L.Ed.2d 48 (1992).
Maintenance and cure is an ancient duty1 imposed upon a
shipowner to provide for a seamen who becomes ill or injured during
his service to the ship. This duty is implied in maritime
employment contracts between the seaman and his employer and is not
premised on the fault or negligence of the shipowner. Aguilar v.
Standard Oil Co. of New Jersey, 318 U.S. 724, 730, 63 S.Ct. 930,
933-34, 87 L.Ed. 1107 (1943); see also, Bertram v. Freeport
McMoran, Inc., 35 F.3d 1008, 1013 (5th Cir.1995).
The Supreme Court in Aguilar made it clear that the
1
See, Aguilar v. Standard Oil Co., 318 U.S. 724, 730 n. 6,
63 S.Ct. 930, 933-34 n. 6, 87 L.Ed. 1107 (1943).
4
shipowner's defenses to a seaman's maintenance and cure claim are
few and narrowly applied. The precise question presented in that
case was whether a seaman could recover for maintenance and cure
for injuries he received while on shore leave for his own
relaxation. In defining the breadth of the remedy the court
states:
So broad is the shipowner's obligation that negligence or acts
short of culpable misconduct on the seaman's part will not
relieve him of the responsibility. Peterson v. The Chandos,
6 Sawy. 544, 4 F. 645 (D.C.[1880] ); see also The J.F. Card,
43 F. 92 (D.C.[1890] ); The Ben Flint, 1 Abb. (U.S.) 126, 1
Biss 562, Fed.Cas. No. 1,299 (D.C.[1867] ). Conceptions of
contributory negligence, the fellow-servant doctrine, and
assumption of risk have no place in the liability or defense
against it. Only some willful misbehavior or deliberate act
of indiscretion suffices to deprive the seaman of his
protection. The Ben Flint, 1 Abb (U.S. 126), 1 Biss 562,
Fed.Cas. No. 1,299 (D.C.[1867] ) supra. The traditional
instances are venereal disease and injuries received as a
result of intoxication, ...
Aguilar, 318 U.S. at 730-31, 63 S.Ct. at 934.
In Warren v. United States, 340 U.S. 523, 71 S.Ct. 432, 95
L.Ed. 503 (1951), the Supreme Court was presented with the question
of whether a seaman could recover maintenance and cure when he
injured himself from a fall after he had been drinking at a dance
hall and grabbed a defective handrail on a balcony. The Supreme
Court concluded that this was not such gross misconduct as would
bar his recovery. The Court, however, reaffirmed its earlier
statement in Aguilar:
The question is whether the injury was due to the wilful act,
default or misbehavior of petitioner.... The standard
prescribed is not negligence but wilful misbehavior.
Id. at 528, 71 S.Ct. at 435 (Internal quotations and citations
omitted).
5
Appellant argues that because his alleged wilful misconduct
occurred before he began his employment with the defendant, he
should still recover for his illness which became symptomatic while
he was in the service of the ship. This argument ignores the
substantial body of law to the contrary relating to illness caused
by venereal diseases.
As early as 1853, in Chandler v. The ANNIE BUCKMAN, 5 F.Cas.
449 (S.D.N.Y.1853) (No. 2591A), the court stated: "A sailor is not
entitled to be treated on shipboard at the expense of the ship, not
to wages, whilst disabled by disease brought on by his own vices,
nor when he, being in diseased state, ships as an able man, the
master and owners being ignorant of his condition." Id. The
Supreme Court in Aguilar cited Chandler as an example of the wilful
misconduct exception applicable to illness caused by venereal
diseases. Aguilar, 318 U.S. at 731 n. 10, 63 S.Ct. at 934 n. 10.
We have found no reported decision reaching a contrary
conclusion. In Trimm v. United Fruit Co., 41 F.Supp. 395
(S.D.N.Y.1941), the court denied maintenance and cure to a seaman
whose illness was caused by venereal disease contracted more than
thirty years before. The court expressed its sympathy for the
seaman but stated: "Nevertheless, upon the facts as here shown,
the illness of the plaintiff is definitely attributable to a
voluntary vice of his own, and for which defendant, under existing
law, is in no way responsible. It follows that plaintiff cannot
recover."
More recently, in Bynum v. Premier Cruise Lines, Ltd., Inc.,
6
1994 A.M.C. 2185, 1994 WL 617067 (M.D.Fla.), the court denied
maintenance and cure to a seaman diagnosed with the HIV virus after
the plaintiff admitted to contracting the virus through sexual
activity with several partners, both male and female, prior to
signing on the ship.
Other district courts have reached a similar conclusion in
cases where the illness was caused solely by chronic alcoholism.
See Des Jardins v. Foss Maritime Co., 1993 A.M.C. 2233, 1993 WL
521785 (W.D.Wash.); Blouin v. American Export Isbrandtsen Lines,
Inc., 319 F.Supp. 1150 (S.D.N.Y.1970); Smith v. Isthmian Lines,
Inc., 205 F.Supp. 954 (N.D.Ca.1962).
Thus, the cases consistently support the district court's
legal conclusion that when the illness is caused solely by the
wilful misconduct of the seaman, regardless of when the wilful
misconduct occurred, the shipowner will escape liability for
maintenance and cure.
In this case, the medical testimony of defendant's experts
fully support the district court's finding that Silmon's back
injury was due solely to an epidural abscess caused by a bacterial
infection contracted from Silmon's illegal IV drug use. This
finding is therefore not clearly erroneous. The district court
also correctly concluded that illegal IV drug use constitutes
wilful misconduct. Thus, the district court committed no error in
rejecting Silmon's maintenance and cure claim.
III.
For the reasons stated above, we affirm the district court's
7
judgment.
AFFIRMED.
8