Friday, November 21, 2003
Weighing a ship owner's ancient duty to a sick sailor, a judge in Portland ruled Thursday that a schooner captain is not legally bound to provide ongoing living and medical expenses to a crew member who was diagnosed with an incurable disease.
In rejecting the lawsuit by Melodee Whitman, a cook aboard the windjammer Timberwind, U.S. District Judge D. Brock Hornby concluded that skipper Rick Miles' obligation to pay Whitman's expenses ended when she was found to have multiple sclerosis and her condition was beyond improvement.
At issue was the time-honored maritime law doctrine which provides that a sailor who is injured or becomes sick while at sea has a right to "maintenance and cure" from the ship owner until the sailor is healed or the illness or injury is cured as far as possible.
The doctrine was codified in the Shipowner's Liability Convention, drafted by the International Labor Organization in Geneva in 1936 and adopted by the United States three years later.
The judge questioned how a protection devised for sailors in simpler times should be applied in an era when modern medicine can keep people alive or alleviate their suffering from incurable illnesses, in some cases by lengthy treatments and expensive drugs.
"What then do maintenance and cure mean in the 21st century?" Hornby wrote.
Whitman's condition emerged on July 17, 2000, when she fell several times on board the 70-foot Timberwind and experienced symptoms that included fatigue, loss of balance, numbness and incontinence. A day later, after an MRI, doctors said her condition was consistent with multiple sclerosis.
Through his insurer, Miles paid $6,604.85 for Whitman's emergency and initial diagnostic treatment, but not for any subsequent treatment or living expenses.
In her lawsuit, Whitman sought "past and ongoing maintenance and cure," plus attorney fees.
Whitman, 29, now lives and works in Boston, where she is taking an experimental drug that seeks to arrest or slow the progression of her disease. She argued that her condition was not permanent because she stands to benefit from further treatment.
The judge agreed that while Whitman's medical treatment is beneficial and even necessary, it does not fall under the doctrine of maintenance and cure.
"Slowing or arresting a decline, while medically important, simply is not the same as effecting an improvement, the standard for maintenance and cure," he wrote.
Hornby said Whitman failed to show that her condition could be improved after Aug. 15, 2000, when her doctor reported that she was "resolved" and experiencing only minor tingling.
Even though the doctor did not use words like "permanent" or "incapable of being improved," the judge said the meaning was clear.
While the lawsuit included no dollar figure, Whitman sought reimbursement for the costs of her drugs and a per diem maintenance, according to her lawyer, R. Terrance Duddy of Portland.
"This was a tough case," Duddy said. "We invited the court to update
the principle of maintenance and cure to the 21st century, where we have
miracle drugs and where it's not so clear-cut whether a disease is curable
or incurable, or whether it's something that is treatable to give someone
a better life."
Copyright © 2003, Associated Press