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Brassea v. Person (8/13/99) sp-5158
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
JULIO BRASSEA, )
) Supreme Court No. S-8371
) Superior Court No.
v. ) 3KO-96-261 CI
WARD E. PERSON, ) O P I N I O N
Appellee. ) [No. 5158 - August 13, 1999]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kodiak,
Donald D. Hopwood, Judge.
Appearances: Matthew W. Claman, Anchorage, for
Appellant. Donald K. McLean, James W. Talbot, Bauer, Moynihan &
Johnson, Seattle, for Appellee.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, and Bryner, Justices. [Carpeneti, Justice, not
MATTHEWS, Chief Justice.
Seaman Julio Brassea suffered an inguinal hernia while
working as a fisherman on the F/V DAPHNE S. While performing
surgery to repair this hernia, the doctor discovered a second,
unrelated Richter's hernia and performed a second surgery to repair
it. The owner of the DAPHNE S. paid maintenance and cure for the
costs associated with the first hernia, but not the second,
contending that Brassea was no longer "in the service of the ship"
when the second hernia was discovered. The superior court ruled
that maintenance and cure was not owed Brassea because he was not
"in service of the vessel"at the time the second hernia manifested
itself and that there was no causal connection between Brassea's
service to the vessel and his Richter's hernia.
Because Brassea was in the service of the vessel at the
time his injury manifested itself, and because the issue of
causation is irrelevant to maintenance and cure analysis, we
II. FACTS AND PROCEEDINGS
Julio Brassea was employed to work as a fisherman aboard
the F/V DAPHNE S. by the vessel's owner, Ward Person. Brassea's
term of employment was to be for the duration of the 1995 Kodiak
salmon season, beginning in early June 1995. The vessel ceased
fishing for the season on August 11, 1995. But on July 19, 1995,
Brassea injured himself while lifting a twelve-gallon gas tank. On
July 24 he reported the injury to Person, who encouraged him to
seek medical treatment, and on July 25 he was diagnosed with a
right inguinal hernia. [Fn. 1] Person paid Brassea thirty days
maintenance (at $25 per day for a total of $750) and hired a
Brassea underwent laparoscopic surgery for the inguinal
hernia on July 27, 1995. During the surgery Dr. Foody, the
treating physician, noticed that Brassea also had what appeared to
be a previously undiagnosed Richter's hernia, [Fn. 2] caused by
surgery Brassea had undergone as an infant approximately fifty
years earlier. Believing the Richter's hernia to be a potentially
life-threatening condition, Dr. Foody determined it was medically
necessary to repair it at that time. Dr. Foody's attempt to repair
the Richter's hernia laparoscopically was unsuccessful, so he
closed the laparoscopic incisions and performed a separate,
Both surgeries were successful, and Brassea was
discharged from the hospital on July 31, 1995. At the follow-up
appointment on August 3, however, Brassea complained of pain from
the incision made to repair the Richter's hernia, and he was
readmitted with a diagnosis of a fistula [Fn. 3] in the wound from
the Richter's incision. He remained in the hospital until August
19, 1995, and was unable to return to work until September 22,
1995. If not for the Richter's hernia surgery and treatment for
the related fistula, Brassea would have recovered completely by
August 21, 1995.
Dr. Foody testified that he was unable to segregate the
costs of the two hernia repair operations, but Person hired a
registered nurse to separate the billing. She determined that
$11,031.27 of the bill was attributable to the inguinal hernia
(comprising a portion of the July 27-31 hospital stay). Person
paid this amount. She attributed the remaining costs to the
Richter's hernia ($34,056.18 in medical expenses), and Person
contests his responsibility for this amount. As stated above,
Person has paid Brassea $750 in maintenance for the thirty-day
period from July 25 to August 23. He also paid Brassea his
unearned wages in the amount of $601.81 through August 11, 1995 --
the end of salmon fishing for the DAPHNE S. But Person did not pay
maintenance for the period of August 24 through September 22, when
Brassea returned to work.
B. Procedural History
Brassea sued Person in superior court, asserting claims
for negligence under the Jones Act, [Fn. 4] and for
unseaworthiness, maintenance, cure and wages under general maritime
law. Both parties moved for summary judgment on the maintenance,
cure and wages claim. The superior court granted Person's motion
and denied Brassea's in a Memorandum Order dated July 29, 1997.
The parties subsequently stipulated to dismissal of the remaining
claims, and the court entered final judgment on October 6, 1997.
Brassea appeals the grant of summary judgment in favor of Person.
III. STANDARD OF REVIEW
"State courts may apply their own standard of review to
maritime cases under the 'saving to suitors' clause [of 46 U.S.C.
sec. 1333]."[Fn. 5] We review de novo appeals from grants of
judgment involving questions of law. [Fn. 6] We will adopt the
"rule of law that is most persuasive in light of precedent, reason,
and policy."[Fn. 7]
A. The Right of Maintenance and Cure
"'Maintenance' is the right of a seaman to food and
lodging if he falls ill or becomes injured while in the service of
the ship. 'Cure' is the right to necessary medical services. Both
extend to the point of 'maximum recovery'."[Fn. 8]
The right to maintenance and cure arises from the
contractual nature of the employer-employee relationship, and is in
some respects more comprehensive than the right to worker's
compensation. [Fn. 9] Both are liability-without-fault systems,
but maintenance and cure contains no causation element and is not
the seaman's only remedy. [Fn. 10]
The origin of the seaman's right to maintenance and cure
in the United States rests on two policy grounds. First is the
general social interest in protecting sailors. The second policy
ground is national: the security of the United States and its
economic well-being depend on an able marine fleet. "[Maintenance
and cure] encourages seamen to engage in perilous voyages with more
promptitude, and at lower wages. It diminishes the temptation to
plunder upon the approach of sickness; and urges the seamen to
encounter hazards in the ship's service, from which they might
otherwise be disposed to withdraw."[Fn. 11]
The importance of these dual policy objectives has led
courts to construe the right to maintenance and cure broadly. In
Farrell v. United States, [Fn. 12] the Supreme Court noted:
It has been the merit of the seaman's
right to maintenance and cure that it is so inclusive as to be
relatively simple, and can be understood and administered without
technical considerations. It has few exceptions or conditions to
stir contentions, cause delays, and invite litigations. The seaman
could forfeit the right only by conduct, whose wrongful quality
even simple men of the calling would recognize -- insubordination,
disobedience to orders, and gross misconduct. On the other hand,
the Master knew he must maintain and care for even the erring and
careless seaman, much as a parent would a child. For any purpose
to introduce a graduation of rights and duties based on some
relative proximity of the activity at time of injury to the
"employment"or the "service of the ship"would alter the basis and
be out of harmony with the spirit and function of the doctrine and
would open the door to the litigiousness which has made the
landman's remedy so often a promise to the ear to be broken to the
hope.[ [Fn. 13]]
1. Causation is irrelevant in maintenance and cure
The superior court addressed the issue of causation in
its Memorandum Order, reasoning that "[i]n the case of a pre-
existing condition, a ship's master is liable only for aggravation
of the condition, not for the condition itself." The two cases the
superior court cited for this proposition [Fn. 14] are inapposite,
however, as they concern claims brought for negligence under the
Jones Act (where causation is an element), not claims for
maintenance and cure. In fact, the question of maintenance and
cure was explicitly avoided in both cases; in one it was expressly
reserved for a separate judgment, [Fn. 15] and in the other the
parties had settled the issue during the trial. [Fn. 16]
As suggested by the language of Farrell, supra, requiring
a showing of causation for maintenance and cure claims misapplies
the law. "The duty to provide maintenance and cure is without
regard to fault, and negligence and causation are not relevant."
[Fn. 17] "The seaman may recover for any injury or illness
suffered without his misconduct during the employment period. The
injury or illness need not result from or be in any way causally
related to his shipboard duties."[Fn. 18]
This rule can be traced to Calmar Steamship Corp. v.
Taylor. [Fn. 19] There, during an examination for a stubbed toe a
seaman was discovered to be suffering from Buerger's disease. [Fn.
20] The Court held the seaman entitled to maintenance and cure,
even though the disease was unrelated to his foot injury. [Fn. 21]
Calmar therefore establishes that maintenance and cure extends to
all injuries and illnesses which are "aggravated or manifested"
during the seaman's term "in service of the ship."
2. Elements of a maintenance and cure claim
Although the seaman has the burden of proof in a case for
maintenance and cure, the burden itself is light. The claimant
must show only four elements: (1) his engagement as a seaman; (2)
that his illness or injury was aggravated or manifested itself
while in the ship's service; (3) the wages to which he is entitled
at the end of the voyage; and (4) the expenditures or liability he
incurred for medicines, lodging, etc. [Fn. 22]
In this case, the only contested element is (2) --
whether Brassea's Richter's hernia "manifested itself"while he was
"in the service of the ship."
B. At the Time He Underwent Surgery for His Inguinal Hernia,
Brassea Was "In the Service of the Ship"for Purposes of
Maintenance and Cure.
Brassea contends that he was in the service of the ship
at least until August 11, 1995 (when the DAPHNE S. stopped fishing
for salmon), and arguably until September 22, 1995 (when Brassea
reached maximum cure). Person responds that Brassea's service to
the ship ended when his inguinal hernia rendered him unable to
return to work aboard the DAPHNE S. Although Person paid
maintenance and cure after that point, he claims Brassea was no
longer in the service of the ship.
In Farrell, the Supreme Court defined "in the service of
the ship"as the state of being "generally answerable to [the] call
to duty rather than actually in performance of routine tasks or
specific orders."[Fn. 23] A seaman on vacation, for example, is
not "answerable to the call of duty,"and therefore is not "in the
service of the ship."[Fn. 24]
Person argues that Brassea was not "answerable to the
call of duty"at the time he underwent surgery to repair the
inguinal hernia because he could not be called upon to return to
the ship. He contends that Brassea's shipboard injury had rendered
him unfit for work, and no possibility existed that he would be
summoned for duty.
Brassea argues for a liberal interpretation of the "in
the service of the ship"standard. This argument conforms to the
expansive interpretation encouraged by the Supreme Court in Aguilar
v. Standard Oil Co. [Fn. 25] In that case, the Court extended
"service"to include injuries sustained while on shore leave. The
Court reasoned that the policy considerations supporting the broad
obligation of maintenance and cure required an equally broad
definition of "service."[Fn. 26]
The assumption is hardly sound that the normal
uses and purposes of shore leave are "exclusively personal"and
have no relation to the vessel's business. . . . [S]hore leave is
an elemental necessity in the sailing of ships, a part of the
business as old as the art, not merely a personal diversion.
. . . [I]t is the ship's business which
subjects the seaman to the risks attending hours of relaxation in
strange surroundings. Accordingly it is but reasonable that the
business extend the same protections against injury from them as it
gives for other risks of the employment.[ [Fn. 27]]
The facts of Brassea's case are even more persuasive.
Brassea was not engaged in an "exclusively personal"activity when
he underwent surgery for the inguinal hernia. His injury, and
subsequent surgery, were incidents of his position as a seaman and
closely related to the business of the ship. The second hernia was
discovered and thus manifested itself during his treatment for the
inguinal hernia at a time when, except for the treatment, he would
have been working aboard the DAPHNE S. We conclude, therefore,
that the discovery and treatment of the second hernia occurred
while Brassea was in the service of the ship.
In light of the tradition of liberally interpreting a
shipowner's liability for maintenance and cure, a liability that is
"among 'the most pervasive' of all and . . . not to be defeated by
restrictive distinctions nor 'narrowly confined,'"[Fn. 28] we
REVERSE the superior court's judgment and hold that Brassea was in
the service of the ship when his Richter's hernia was manifested,
and that he is therefore entitled to maintenance and cure. We
REMAND for further proceedings consistent with this opinion.
An inguinal hernia occurs when, during physical exertion, a
section of intestine is forced through the small sac in the muscle
wall of the abdomen left by the descent of the testicle early in
A Richter's hernia consists of an obstruction of the small
intestine, caused by the intestine becoming embedded in, or scarred
to, the abdominal wall.
A fistula is "an abnormal passage leading from an abscess or
hollow organ to the body surface or from one hollow organ to
another and permitting passage of fluids or secretions." Webster's
New Collegiate Dictionary 467 (9th ed. 1989).
46 U.S.C. sec. 688 (1994).
Brown v. State, 816 P.2d 1368, 1371 n.2 (Alaska 1991).
Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
1 Thomas J. Schoenbaum, Admiralty and Maritime Law, 348 (2d
ed. 1994) (citations omitted).
Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty,
281-82 (2d ed. 1975).
Id.; see also Aguilar v. Standard Oil Co., 318 U.S. 724, 727
(1943) (noting that maintenance and cure is designed to achieve
"the combined object of encouraging marine commerce and assuring
the well-being of seamen").
Farrell v. United States, 336 U.S. 511 (1949).
Id. at 516.
Milos v. Sea-Land Serv., Inc., 478 F. Supp. 1019, 1023
(S.D.N.Y. 1979); Scarberry v. Ohio River Co., 217 F. Supp. 189, 193
(S.D. W. Va. 1963).
Milos, 478 F. Supp. at 1029.
Scarberry, 217 F. Supp. at 189, 193.
Schoenbaum, supra note 8, at 349 (footnote omitted).
Gilmore & Black, supra note 9, at 287-88.
303 U.S. 525 (1938).
Id. at 526.
Id. at 529.
See Weason v. Harville, 706 P.2d 306, 309 (Alaska 1985)
(quoting 2 M. Norris, The Law of Seamen sec. 558 (3d ed. 1970)).
Farrell, 336 U.S. at 516.
See Shaw v. Ohio River Co., 526 F.2d 193, 194, 198-99 (3d Cir.
318 U.S. 724 (1943).
Id. at 733.
Id. at 733-34.
Vaughan v. Atkinson, 369 U.S. 527, 532 (1962) (quoting
Aguilar, 318 U.S. at 735).