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ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

GUY ANDERSON,

Plaintiff,

v.

PACIFIC COAST MARITIME, INC., et al.,

Defendants.

CASE NO. C06-134JLR

ORDER

This matter comes before the court on Plaintiff’s Motion for Maintenance and

Cure (Dkt. # 12).

On or about May 22, 2004, Plaintiff Guy Anderson was working as a crane

operator/deckhand aboard the tug M/V GYRFALCON. He alleges he slipped on the deck

and hurt his back. All parties agree that Mr. Anderson is overweight. He is 67 inches

tall, and his weight has varied over the last ten years from 235 to 264 pounds. At issue in

the instant motion is whether Defendants should reinstate Plaintiff’s maintenance and pay

for a gastric bypass procedure.

A shipowner’s obligation to provide maintenance and cure has its roots in ancient

maritime law. Vaughan v. Atkinson, 369 U.S. 527, 532 n.4 (1962). When a seaman is

injured in service of his vessel, the shipowner has an obligation not only to bring the

seaman to a port for treatment, but to pay maintenance (compensation for room and board

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ORDER – 2

equivalent to what the seaman would have received aboard the vessel) and cure

(payments for medical treatment necessary to restore the seaman to health). Id.; see also

MARTIN J. NORRIS, THE LAW OF SEAMEN §§ 26:5-26:6 (3d ed. 1985). Maintenance and

cure are available even where the shipowner is not at fault for the seaman’s injury in the

service of the vessel. Berg v. Fourth Shipmor Assocs., 82 F.3d 307, 309 (9th Cir. 1996).

A seaman’s entitlement to maintenance and cure continues until he reaches “maximum

cure” – a recovery as complete as the injury or illness allows. Id.

On the record before the court, there is no evidence disputing Plaintiff’s

allegations that he was injured aboard the GYRFALCON. There is also no evidence to

contradict Dr. Sam Assam’s conclusion that Plaintiff currently suffers from vertebral

degeneration, disk bulging, nerve-root compression, and annular disk tears. There is no

evidence to contradict Dr. Assam’s assertion that Plaintiff is currently unable to return to

work because of serious back pain. Thus, on the record before the court, Plaintiff has not

reached maximum cure. Defendants therefore erred in discontinuing maintenance. 

Putting the maintenance issue aside, the parties contest the most appropriate

treatment for Plaintiff’s back. Dr. Assam lobbies for a gastric bypass procedure. In his

opinion, Plaintiff’s weight makes his injuries much more painful. He believes that

Plaintiff’s rapid weight loss in the aftermath of the gastric surgery would relieve his pain

to the point that he would be able to return to work. He believes that the outcome from

the gastric bypass surgery would be better than the outcome from a back surgery.

Defendants disagree. Their own physician opines that there would be no

orthopedic benefit to weight loss or gastric bypass surgery. He does not explain what

course of treatment would best cure Plaintiff’s injury. In addition, Defendants suggest

that to the extent weight loss will benefit Plaintiff’s back, he should simply diet.

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1

The court acknowledges that Defendants did not cause Plaintiff to become overweight. 

Defendants have no obligation to cure this pre-existing condition. However, if the most

appropriate means of curing the debilitating pain arising from Plaintiff’s injury is to reduce his

weight, then this is the cure to which Plaintiff is entitled. It is axiomatic that a defendant must

take the plaintiff as he finds him. That Plaintiff’s weight apparently makes his injury more severe

than it would be for a lighter person is no defense to liability.

2

The court also denies Defendants requests to strike the declarations Plaintiff submitted

with his reply brief. The court notes, however, that other than Plaintiff’s admissions about his

weight, the court has not relied on any evidence contained in those declarations in reaching its

decision on the instant motion.

ORDER – 3

The court has no means to resolve the dispute between the parties’ dueling

doctors. Indeed, it is not clear that the court can resolve this dispute without trial. In any

event, it cannot decide the dispute on the record before it. The court leaves it to the

parties to develop a means for determining which “cure”1

 is most appropriate for Plaintiff. 

Until the issue is resolved, Defendants must continue maintenance payments.

For the reasons stated above, the court GRANTS Plaintiff’s motion (Dkt. # 12) to

the extent it seeks continued maintenance payments, but DENIES the motion to the extent

that it seeks payment for gastric bypass surgery, and to the extent it seeks attorneys’ fees.2

Defendants shall pay Plaintiff for all maintenance payments they have withheld, and shall

continue such payments in accordance with this order.

Finally, the court admonishes the parties to conduct themselves in a civil manner

befitting officers of the court. Some of the conduct of the parties and the tone of their

briefing (“a hired gun, with an M.D. after his name”) suggests that they are not currently

meeting this standard.

Dated this 28th day of June, 2006.

A 

JAMES L. ROBART

United States District Judge

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