By Lawrence Jacobson, Managing Director P&I, Future Care, Inc., a provider of medical management and cost containment services to the maritime industry.
Under the general maritime law of the United States and in many maritime countries the shipowner owes all seafarers in his employ a duty of care in the event of any injury or illness occurring during the scope of the crewman’s employment (in the U.S., while “in the service of the ship”). The duty of care includes provision of maintenance and cure to the injured or ill mariner, dating back at least to the twelfth century Rolls of Oléron.[1]
Maintenance is a daily living allowance paid to the seafarer from the time he leaves the ship for medical treatment until a return to Fit for Duty (FFD) status or maximum medical cure (MMI), whichever occurs first.
Cure refers to medical treatment. Generally, the shipowner must provide adequate medical care to the injured or ill mariner again, until either FFD or MMI.
In many countries, including the United States, this duty of care is considered to be “non-delegable”; that is, the shipowner ultimately is responsible to the crewman in the event the medical provider commits malpractice or there is a defect in the delivery of the required medical treatment.
The shipowner’s duties with respect to the provision of medical care have expanded under Title IV of the Maritime Labour Convention, 2006, (MLC) to include specific requirements for both shipboard and shore medical treatment. Standard A4.1 – Medical care on board ship and ashore requires that the shipowner make available “health protection and medical care as comparable as possible to that which is generally available to workers ashore” for the crew onboard ship. As an element of that care the shipowner must provide:
(d) … medical advice by radio or satellite communication to ships at sea, including specialist advice, is available 24 hours a day;[2]
The penalties under maritime law and the MLC for non-compliance can include ship detention and punitive damages, among many others.
Clearly, the nature of what is involved, seafarers’ health and medical wellbeing – potentially, life itself – demands that the shipowner identify and utilize the best medical resources available to respond to both the letter and spirit of the duty of care. Whether selecting a hospital, out-patient facility, physician or other medical provider, the shipowner is best served by obtaining the services of an experienced medical manager. Port husbanding agents and commercial Club correspondents, while expert in many areas, generally do not have the requisite resources and medical management skills required by the shipowner to meet his duty of care under the general maritime law or the Maritime Labour Convention.
Moreover, the simple provision of telemedical advice until the ill or injured crewman reaches shore is much less than what is required. Recently there has been an increase of newly-arrived telemedicine providers, asserting expertise in providing medical care to seafarers. However, the duty of “cure” requires much more than emergency remote medical consultation. Simply dropping the crewman at the nearest accessible medical provider is insufficient and unwise, medically and legally. An experienced medical manager will assume management from inception, onboard ship, providing telemedical diagnosis and prescription, steering to an appropriate medical facility. Thereafter expert physician or nurse case management of treatment will improve the quality and efficiency of treatment, reducing costs. Repatriation and a plan for convalescence is developed and agreed, together with ancillary services such as accommodation, pharmacy, therapy, all aimed at timely return to Fit for Duty status or maximum medical cure.
Engaging an experienced maritime medical manager before disaster strikes is a wise move and, arguably, required under the MLC. Having a proactive plan and medical manager in place assists the shipowner in demonstrating compliance, if challenged. It also reduces medical risk and costs when illness or injury occur.
In an age of increased specialization and legal liabilities for the shipowner it seems foolish, perhaps even callous, to entrust the medical care of the crew to non-experts. The nature of the duty to care owed the crew is only likely to increase in scope. For reasons ranging from humanitarian to financial an adequate response requires specialized and experienced medical advice and management, in place before it is needed.
[1] Fordham International Law Journal Volume 14, Issue 3 1990 Article 5 Recognizing Modern Maintenance and Cure as an Admiralty Right Virginia A. McDaniel; see http://seafarersrights.org/wp/wp-content/uploads/2014/11/INTERNATIONAL_ARTICLE_RECOGNISING-MODERN-MAINTENANCE-ETC_1991_ENG.pdf
[2] Maritime Labour Convention, 2006, Standard A4.1 http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:91:0::::P91_SECTION:MLCA_AMEND_A4
