1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-3-1995

Deisler v Aggregates

Precedential or Non-Precedential:

Docket 94-5310

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Recommended Citation

"Deisler v Aggregates" (1995). 1995 Decisions. Paper 119.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/119
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No. 94-5310 

 

 FRANCIS A. DEISLER 

 Plaintiff-Appellee, 

 v. 

 McCORMACK AGGREGATES, CO.; 

 DREDGE "SANDY HOOK", her 

 boilers, engines, tackle, 

 appurtenances, etc. 

 Defendants-Appellants 

 

 ON APPEAL FROM THE UNITED STATES 

 DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY 

 

 (Civil No. 90-2828) 

 Argued: October 31, 1994 

 Before: GREENBERG, McKEE, Circuit Judges, 

 and POLLAK, District Judge.* 

 (Filed May 3, 1995) 

 

 GEORGE J. KOELZER (Argued) 

 CAROLYN J. SHIELDS 

 Lane Powell Spears Lubersky 

 333 South Hope Street 

 Suite 2400 

 Los Angeles, California 90071 

 Counsel for Defendants-Appellants

 McCormack Aggregates, Co;. 

 Dredge "Sandy Hook" 

 

 GEORGE J. CAPPIELLO (Argued) 

 PAUL T. HOFMANN 

 Cappiello Hofmann & Katz 
 30 Montgomery Street 

 Jersey City, New Jersey 07302 

 

 *Honorable Louis H. Pollak, United States District Judge for 

the Eastern District of Pennsylvania, sitting by designation. 

 Counsel for Plaintiff-Appellee

 Francis A. Deisler 

 

 

 OPINION OF THE COURT 

 

McKee, Circuit Judge.

 We are asked to decide, among other things, if a seaman's 

failure to disclose a prior injury on a job application causes 

the seaman to forfeit his entitlement to maintenance and cure. 

We hold that, under the circumstances presented here, no such 

forfeiture has occurred and we will thus affirm the district 

court's judgment. 

 I. FACTUAL BACKGROUND

 McCormack Aggregates, Co. operates various dredging vessels 

in connection with its business of mining sand from the bottom of 

the sea. Francis Deisler is a seaman who is a member of 

International Union of Operating Engineers, Local 25 - Marine 

Division. That union periodically refers workers to employers 

who operate dredging vessels and equipment. In 1982, Deisler 

injured his back while he was working on a dredge and he was 

disabled for about six months. Thereafter, he returned to jobs 
involving heavy physical labor including construction work, 

dockbuilding and dredging. 

 On August 3, 1988, while Deisler was working as a dredgeman 

for another boating company, his union referred him to McCormack 

where he filled out an application for a position as a boatman. 

That application included the following question: "Do you have 

any physical limitations which would hinder your performance in 

the position applied for?" Deisler did not answer the question.1

 On June 12, 1989, some 10-1/2 months after he filled out the 

application, Deisler's union told him to report for work with 

McCormack on June 13.2 Deisler's application apparently was 

never reviewed. The sections on the bottom portion of the 

application labelled "Reviewed By" and "Approved By," which were 

for "office use only," were left blank. 

 

1 Although there was some dispute at trial about Deisler's prior 

injury, Deisler offered testimony that he had been pain free for 

three years prior to filling out the job application. It is 

undisputed that Dr. Edward Taylor, an orthopedic surgeon, treated 

Deisler for a herniated disk at L3-4 in 1985, and prescribed 

medication and exercise. Thereafter Deisler's condition improved 

and he resumed work as a manual laborer. 

 Deisler testified that when he filled out the job 

application, he believed he had no physical limitation which 

would hinder his job performance with McCormack. 

2 The district court's Findings of Fact state that Deisler 

reported for work on June 14, 1989. April 26, 1994, Findings of 

Fact, ¶ 4. However, that appears to be an error. Deisler's 

uncontroverted trial testimony is that he received the call to 

report to work on Monday, June 12, 1989 and he reported the next 

day. See Suppl. App. at 4 (Deisler's trial testimony). 
 Deisler was injured almost immediately after he began 

working for McCormack. The district court described the incident 

which caused his injury as follows: 

 On June 15, 1989, . . . plaintiff suffered an 

injury while moving a wheelbarrow loaded with 

supplies along a path on McCormack's 

property. This job had been assigned to him 

by his supervisors, Messrs. Ellis and 

Melendez, who were, respectively, the 

tugboat's Captain, and the dredge's 

Dragtender . . . . The accident occurred 

when he [Deisler] rolled the wheelbarrow off 

the vessel side of the ramp, and the 

wheelbarrow's wheel went onto the sandy path. 

The wheelbarrow became unstable, stopped 

short, and fell onto its side, spilling its 

contents. Plaintiff's forward momentum 

caused him to tumble and fall over the 

stopped wheelbarrow. Immediately after his 

fall he felt a sharp pain in his back. 

April 26, 1994, Findings of Fact, ¶ 5. 

 The district court found that Melendez and Ellis saw this 

incident.3 Both were in the dredge's dragtender's cabin which 

was a raised work platform which overlooked the location where 

Deisler fell. Melendez testified that Ellis ducked down when 

Deisler fell so that Deisler would not know that Ellis had 

witnessed the accident, and that Ellis told him (Melendez) that 

he had seen Deisler fall. 

 The following morning Ellis asked Deisler to move some heavy 

cables, but Deisler complained that his back was hurting. 

Deisler then left the vessel, went to the company's offices, and 

 

3 Melendez testified at trial that he saw the aftermath. 
began filling out an accident report of his fall and the 

resulting back injury. Deisler then went to the office next door 

where he was given a dismissal notice which stated that he was 

being fired for unsatisfactory work performance. 

 Before Deisler left McCormack's offices, he took a New 

Jersey Disability Benefits claim form that he sent to his 

physician. Deisler's physician completed that form and returned 

it to McCormack after June 27, 1989. Thereafter, Deisler made a 

claim for maintenance and cure, and McCormack hired the maritime 

investigative firm of Lamorte and Burns, Inc. to investigate that 

claim. Lamorte was succeeded by American Maritime Consultants.4 

Following the investigation of Deisler's claim, both Lamorte and 

American Maritime recommended that McCormack pay Deisler the 

requested maintenance and cure, but McCormack refused and Deisler 

filed suit against McCormack and its dredge under the Jones Act,5

and under general maritime law. 

 Those two causes of action were tried simultaneously with 

the jury sitting as the finder of fact on the Jones Act claim and 

the court sitting as finder of fact on the general maritime 

claim. The jury found the defendants were not negligent and 

 

4 Bernard Lillis, McCormack's Chief Financial Officer also 

investigated Deisler's claim. Lillis delegated some of the 

investigation to Brad Simek, McCormack's Dredge Superintendent 

who oversaw the operations of the dredge and its crew. 

5 The Jones Act provides in part that "[a]ny seaman who shall 

suffer personal injury in the course of his employment may, at 

his election, maintain an action for damages at law, with the 

right of jury trial, . . . ." 46 U.S.C. § 688. 
returned a verdict in their favor under the Jones Act. However, 

the district court granted plaintiff's motion for a new trial on 

the Jones Act claim but plaintiff elected to discontinue that 

cause of action in favor of his claim for maintenance and cure, 

and also for compensatory damages, under the general maritime 

law. The court ruled that plaintiff was entitled to maintenance 

and cure under general maritime law, and also awarded plaintiff 

compensatory damages based upon defendants' arbitrary and 

capricious denial of plaintiff's claim. The defendants6 appeal 

from this judgment of the district court. 

II. DISCUSSION

 The district court had subject matter jurisdiction over this 

admiralty action under 28 U.S.C. § 1333. We have appellate 

jurisdiction over the final judgment of the district court 

pursuant to 28 U.S.C. § 1291. We review the district court's 

findings of fact under a clearly erroneous standard. See Sheet 

Metal Workers Int'l Ass'n Local 19 v. 2300 Group, Inc., 949 F.2d 

1274, 1278 (3d Cir. 1991). However, our review of the district 

court's application of the law to these facts is plenary. See

Tudor Dev. Group v. United States Fidelity & Guar. Co., 968 F.2d 

357, 359 (3d Cir. 1992). 

 A. Maintenance and Cure

 The gravamen of McCormack's argument is that Deisler 

forfeited his right to maintenance and cure when he failed to 

 

6 Hereinafter both defendants will be referenced as "McCormack." 
disclose his prior back injury as requested on the employment 

application. 

 Maintenance and cure are rights given to seamen who become 

ill or injured in the service of a vessel.7 "Maintenance is the 

living allowance for a seaman while he is ashore recovering from 

injury or illness. See Vaughan v. Atkinson, 369 U.S. 527, 531, 

82 S.Ct. 997, 1000, 8 L.Ed.2d 88 (1962). Cure is payment of 

medical expenses incurred in treating the seaman's injury or 

illness. See Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 528, 58 

S.Ct. 651, 653, 82 L.Ed. 993 (1938)." Barnes v. Andover Co. 

L.P., 900 F.2d 630, 633 (3d Cir. 1990). An employer's obligation 

to furnish maintenance and cure continues "until the seaman has 

reached the point of maximum cure, that is until the seaman is 

cured or his condition is diagnosed as permanent and incurable." 

Barnes, 900 F.2d at 633-34; see also Vella v. Ford Motor Co., 421 

U.S. 1, 5 (1975). 

 The origins of the duty to provide maintenance and cure have 

been traced to Justice Story in Harden v. Gordon, 11 F. Cas. 480, 

482-83 (C.C.D. Me. 1823).8 The Supreme Court first recognized 

and defined these rights in The Osceola, 189 U.S. 158, 175 

 

7 It is undisputed that Deisler is a maritime employee who would 

normally be entitled to maintenance and cure. 

8 For a discussion of the historical underpinnings and evolution 

of a seaman's right to maintenance and cure see Cox v. Dravo 

Corp., 517 F.2d 620 (3d Cir. 1975). 
(1903).9 "The duty was derived from medieval maritime codes," 

Barnes, 900 F.2d at 633, and is interpreted in such a way as to 

afford injured seamen the maximum protection of the law. 

 

9 In The Osceola, a crew member sued for injuries sustained in 

carrying out an order given by the master. There was no 

allegation that the mate or the crew were negligent in their 

execution of the master's order. Rather, plaintiff claimed that 

the vessel and its owners should be liable for the negligent 

order of the captain in the course of the navigation or 

management of the vessel. 189 U.S. at 159-60. The district 

court held that the vessel was liable in rem for plaintiff's 

injuries, and the Circuit Court of Appeals certified certain 

questions of law to the Supreme Court. The Supreme Court denied 

recovery. 

 The Court distilled the substance of the questions before it 

into the sole issue of whether the vessel owner was liable in rem 

to one of the crew by reason of the improvident and negligent 

order of the master. The Court began its analysis by noting that 

for the district court's conclusion to be correct, the liability 

must be founded upon the general admiralty law or upon a local 

statute of the state in which the accident occurred. Id. at 168. 

The Court then went on to examine the Continental codes and the 

American case law. The Court reasoned that while the Continental 

codes had restricted seamen to the traditional remedy of 

maintenance and cure, the American cases, perhaps stimulated by 

the English Merchants Shipping Act of 1876, had allowed recovery 

of an "indemnity" for unseaworthiness. However, these cases 

denied recovery for negligence in "navigation and management." 

Based on its review of these authorities, the Court opined: 

 That the seaman is not allowed to recover an 

indemnity for the negligence of the master, or any 

member of the crew, but is entitled to maintenance and 

cure, whether the injuries were received by negligence 

or accident. 

Id. at 175. 

 This proposition was undercut with the passing of the Jones 

Act, which provided that a seaman who is injured in the course of 

his employment by the negligence of the owner, master, or fellow 

crew members could recover damages for his injuries. See Grant 
 Viewing seamen as wards of admiralty, the 

Court has emphasized that the right to 

maintenance and cure must be construed 

liberally and has consistently expanded the 

scope of the right. Thus, today a shipowner 

is obliged to pay maintenance and cure 

regardless of any fault on its part; only 

wilful misconduct on the part of the seaman 

will deprive him of its protection. 

Id. (citations omitted). Although conditions have clearly 

changed since this concept was first introduced into law, the 

right of recovery for maintenance and cure has continued to be a 

fundamental component of the relationship between employees and 

employers at admiralty. 

 "[T]he seaman's right was firmly 

established in the maritime law long before 

recognition of the distinction between tort 

and contract." 

 [It is argued that] the rationale 

underlying the right of maintenance, which is 

predicated on the special status of seamen as 

"wards of the admiralty," is no longer valid. 

It is true that almost every case concerning 

the right to maintenance relies on Justice 

Story's description of the seaman as 

"generally poor and friendless, and 

acquir[ing] habits of gross indulgence, 

carelessness, and improvidence." 

 [It is also argued that] today those seamen 

who are unionized are neither friendless nor 

improvident . . . . Furthermore, the 

adjectives "friendless" and "helpless" were 

generally used to describe sailors in foreign 

ports . . . . 

 The changed circumstances of the unionized 

seaman may undercut the rationale supporting 

the traditional right to maintenance and 

(..continued) 

Gilmore & Charles L. Black, Jr., The Law of Admiralty § 6-2, at 

276-277 (2d ed. 1975). 

 
cure, at least for unionized seamen. 

However, the Supreme Court has shown no 

inclination to depart from its long 

established solicitude for seamen. Until it 

does so, we see no basis to assume that the 

emergence of powerful seamen's unions, . . . 

justifies our ignoring the Court's clear and 

frequent pronouncements that seamen remain 

wards of the admiralty. 

Id. at 636-37 (citations omitted). 

 A ship owner's responsibility for maintenance and cure 

"extends beyond injuries sustained on board ship or during 

working hours to any injuries incurred in any place while the 

seaman is subject to the call of duty." Id. at 633; see also

Aguilar v. Standard Oil Co., 318 U.S. 724, 732 (1943). As noted 

above, only the seaman's willful misconduct or deliberate 

misbehavior relieves the ship operator of this duty. See Barnes, 

900 F.2d at 633.10

 1. Deisler's Failure to Disclose His Prior Injury

 McCormack contends that Deisler's failure to disclose his 

prior back injury is the kind of misbehavior which relieves it of 

the duty it would otherwise have to provide maintenance and cure. 

However, nondisclosure of a pre-existing injury, without more, 

will not result in a seaman's loss of maintenance and cure. Such 

a forfeiture will not occur unless Deisler intentionally

misrepresented or concealed medical facts that were material to 

 

10 The duty to provide maintenance and cure is independent of 

any fault of the employer, and the seaman's contributory 

negligence does not affect his right to maintenance and cure. 

The Osceola, supra; Aguilar, 318 U.S. at 731. 
the decision to hire Deisler. In addition, there must be a nexus 

between the improperly concealed material information and the 

disputed injury. See McCorpen v. Central Gulf Steamship Corp., 

396 F.2d 547, 549 (5th Cir.), cert. denied, 393 U.S. 894 (1968) 

(where a seaman is required to provide pre-employment medical 

information and "the seaman intentionally misrepresents or 

conceals material medical facts, the disclosure of which is 

plainly desired, then he is not entitled to an award of 

maintenance and cure," if the injury is causally related to the 

concealed medical condition); Wactor v. Spartan Transportation 

Corp., 27 F.3d 347, 352 (8th Cir. 1994) (adopting the McCorpen

standard); Siders v. Ohio River Co., 469 F.2d 1093 (3d Cir. 1972) 

(per curiam) (citing McCorpen).11 Given the historical 

importance of a seaman's claim for maintenance and cure, it 

 

11 In Sammon v. Central Gulf Steamship Corp., 442 F.2d 1028 (2d 

Cir.), cert. denied, 404 U.S. 881 (1971), the Court of Appeals 

for the Second Circuit stated that the rule in McCorpen "that any 

concealment of material medical data, prevents an award for 

maintenance and cure is not the rule of this Circuit." Id. at 

1029. The Sammon court held that the concealment of a preexisting condition by the seaman during a pre-hiring interview 

"is fraudulent only if the seaman knows or reasonably should know 

that the concealed condition is relevant." Id. Under that rule, 

a seaman may claim maintenance and cure for a related injury or 

illness if, at the time he was asked, he held a good faith belief 

that the pre-existing condition was not relevant to his fitness 

for work. Id. Even if there is some tension between the rule of 

McCorpen and the rule of Sammon, see Wactor, 27 F.3d at 352 n.4, 

it is not relevant to this case, because, as discussed in the 

text, McCormack has not proven that Deisler's omission was 

material to its decision to hire him. 
should not be lost unless the employee's purportedly wrongful 

conduct was material to an employer's hiring decision. 

 The district court concluded that Deisler should have 

disclosed his prior injury in response to the inquiry on the 

employment application. The court ruled that McCormack's inquiry 

into prior injuries created an inference that the information was 

material to McCormack. The court went on to conclude, however, 

that this "inference" of materiality was destroyed by the fact 

that McCormack's decision to deny maintenance and cure was not 

predicated on the concealment but rather on McCormack's 

contention that an accident never happened. Suppl. App. at 107-

08. In Deisler's view, the district court found that the 

concealment was not material to McCormack's decision to hire 

Deisler. But that clearly is not what the district court found. 

We thus view Deisler's materiality argument as an alternative 

argument for affirming the judgment. Cf. Mark v. Borough of 

Hatboro, No. 94-1722, slip op. at 3 n.1 (3d Cir. Mar. 31, 1995) 

("we can affirm on a ground which the district court did not rely 

but which was raised before it."). 

 Assuming arguendo that the question on McCormack's 

application created a duty to disclose,12 the record is 

 

12 McCormack argues that Deisler's failure to cross-appeal means 

that we must accept the district court's finding that Deisler 

should have disclosed that he could not perform the work as 

readily as others because of his prior back injury. The argument 

is frivolous. Of course, an appellee is entitled to rely on 

alternative arguments which had been raised in the district court 

supporting the judgment without filing a cross-appeal, so long as 

he or she is not seeking to expand his or her rights under the 
absolutely clear that Deisler's omission was not material to 

McCormack's hiring decision. Deisler was never questioned about 

his failure to answer although McCormack had eleven months to 

review his job application before he was told to report for work. 

This is evidenced by the fact that the sections on the bottom 

portion of the application labelled "Reviewed By" and "Approved 

By" were left blank. One of the investigators working for 

Lamorte stated: 

 I met with McCormack Aggregates, Mr. Brad 

Simek, to discuss the hiring of Mr. Deisler 

and specifically to find out if there was a 

policy or practice of questioning prospective 

employees about medical conditions, or if 

anyone could testify as to any conversations 

with Deisler that the back condition predated 

his employment with McCormack. 

Unfortunately, McCormack is unable to provide 

me with any such supporting testimony. 

Suppl. App. at 182. 

 McCormack argues that its failure to investigate Deisler's 

omission is irrelevant. Reply Brief of Appellant at 4. However, 

McCormack had the burden of proving that the omission was 

material to its decision to hire Deisler, see Wactor, 27 F.3d at 

352; Ruiz v. Plimsoll Marine, Inc., 782 F. Supp. 315, 317 (M.D. 

La. 1992), and its failure to do so is fatal to its assertion 

(..continued) 

judgment or limit another's rights. See Mark v. Borough of 

Hatboro, No. 94-1722, slip op. at 3 n.1 (3d Cir. Mar. 31, 1995). 
that Deisler is not now entitled to recover maintenance and 

cure.13 

B. Wages, Compensatory Damages, Prejudgment Interest, Attorney's 

Fees and Costs

 McCormack argues that even if Deisler can recover 

maintenance and cure, the district court erred in awarding lost 

wages, damages for pain and suffering, prejudgment interest, 

costs, and attorney's fees, as those are not an incident of the 

seaman's contract of employment.14 McCormack asserts that these 

damages are an incident of negligence under the Jones Act and 

that since Deisler elected to dismiss his Jones Act claim after 

 

13 We reject McCormack's contention that we should, here, 

presume reliance from the simple fact that it asked the question. 

But there may be situations where courts should presume such 

reliance. For instance, if a shipowner requires a prospective 

applicant to submit to a physical examination and/or to fill out 

a detailed medical history form, the extent to which the employer 

will be required to submit affirmative proof of reliance should 

be diminished. It is not that reliance is no longer required; 

rather, it is that the employer will there have demonstrated 

reliance by adopting a particular procedure or form. However, 

where, as here, a general question about past illnesses and 

injuries is but a single question in a standard form employment 

application, the situation is markedly different. The question 

is simply one of many questions on a variety of topics, and the 

rather vague inquiry into medical history may not ever be 

reviewed by anyone at all. The employer's interest in the 

information is significantly less than in the prior examples, and 

it therefore makes sense to require the shipowner to present 

evidence of reliance. 

14 Although lost wages are qualitatively different from 

damages for pain and suffering as the former would certainly be 

deemed an incident of the seaman's contract of employment, for 

purposes of our discussion, we will accept McCormack's conflation 

of these damages. 
the trial, the nature of the two causes of action, and the law of 

the case precludes recovery for these damages under general 

maritime law. See Brief of Appellant at 13. 

 In Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367 

(1932), the Supreme Court discussed the impact of the then 

recently enacted Jones Act upon general maritime law. The Court 

stated: 

 By the general maritime law, a seaman is 

without a remedy against the ship or her 

owners for injuries to his person, suffered 

in the line of service, with two exceptions 

only . . . . A remedy is his also if the 

injury has been suffered through breach of 

the duty to provide him with "maintenance and 

cure." The duty to make such provision is 

imposed by the law itself as one annexed to 

the employment. The Osceola, supra. 

Contractual it is in the sense that it has 

its source in a relation which is contractual 

in origin, but, given the relation, no 

agreement is competent to abrogate the 

incident. If the failure to give maintenance 

or cure has caused or aggravated an illness, 

the seaman has his right of action for injury 

thus done to him; the recovery in such 

circumstances including not only necessary 

expenses, but also compensation for the hurt. 

The Iroquois, 194 U.S. 240 . . . . 

 The question then is to what extent the 

ancient rule has been changed by modern 

statute . . . commonly known as the Jones Act 

. . . . We are to determine whether death 

resulting from the negligent omission to 

furnish care or cure is death from personal 

injury within the meaning of the statute. 

 We think the origin of the duty is 

consistent with a remedy in tort, since the 

wrong, if a violation of a contract, is also 

something more. The duty, as already pointed 

out, is one annexed by the law to a relation 

and annexed as an inseparable incident 

without heed to any expression of the will of 
the contracting parties. For breach of a 

duty thus imposed, the remedy upon the 

contract does not exclude an alternative 

remedy built upon the tort. 

Id. at 370-72. Several courts have since cited Cortes for the 

proposition that an employee may recover damages resulting from 

an employer's failure to provide maintenance and cure. See e.g.

Vaughn v. N.J. Atkinson, 369 U.S. 527, 530 (1962); Murphy v. 

Light, 257 F.2d 323, 325 (5th Cir. 1958); Sims v. United States 

of America War Shipping Admin., 186 F.2d 972, 974 (3d Cir. 1951). 

 In Sims, the district court disallowed a claim for 

additional damages in an action for maintenance and cure that a 

seaman brought under the Suits in Admiralty Act, 46 U.S.C.A. § 

741 et. seq.15 In reversing we stated: 

 The new question in this case is whether 

the respondent is liable for the 

 

15 The Suits in Admiralty Act waives the government's sovereign 

immunity: 

 [i]n cases where if [a United States] vessel were 

privately owned or operated, or if [United States] 

cargo were privately owned or possessed, or if a 

private person or property were involved, a proceeding 

in admiralty could be maintained, any appropriate 

nonjury proceeding in personam may be brought against 

the United States . . . . 

Gordon v. Lykes Bros. Steamship Co., Inc., 835 F.2d 96, 98 (5th 

Cir.), cert. denied, 488 U.S. 825 (1988) (citing 46 U.S.C. § 742 

(1982)). 

 In effect, the Suits in Admiralty Act is a jurisdictional 

statute providing for maintenance of admiralty suits against the 

United States which encompasses all maritime torts alleged 

against the United States. See id. at 98; United States v. 

Continental Tuna Corp., 425 U.S. 164, 176 n.14 (1976). 
consequential damages16 occasioned by the 

failure to provide for maintenance and cure 

after termination of the voyage when it was 

demanded . . . . 

 We may regard it as settled law that if a 

man is injured or becomes ill while on a 

voyage, neglect to fulfill the duty to 

provide maintenance and cure may impose 

damages beyond mere cost of food and 

medicines. The Iroquois, 194 U.S. 240, 24 

S.Ct. 640, 48 L.Ed. 955 . . . .17

 

16 While the district court correctly classified Deisler's lost 

wages and damages for his pain and suffering as compensatory 

damages, an award of consequential damages would clearly 

encompass these compensatory damages. Compensatory damages serve 

to compensate for harm sustained by a party. Restatement 

(Second) of Torts § 903 (1977). Consequential damages are merely 

compensatory damages for harm that "does not flow directly and 

immediately from the act of a party, but only some of the 

consequences or results of such act." Black's Law Dictionary 390 

(6th ed. 1990). 

17 The Iroquois, 194 U.S. 240 (1904), first recognized the 

principle that the shipowner can be held liable for the damages 

resulting from neglect in the fulfillment of the duty to provide 

maintenance and cure. There, plaintiff seaman sued the vessel in 

rem to recover damages resulting from the master's failure to 

provide him surgical treatment and care. The seaman fractured 

two ribs and his right leg when he accidentally fell from the 

main yard to the deck of the vessel. The master, with the aid of 

the carpenter, set the leg in splints for five weeks, after which 

the master found the leg to be in good condition and permitted 

the seaman to walk about with the aid of a crutch. However, 

after arriving at port it was found the bones of his leg were not 

united and as a result his leg had to be amputated. Id. at 240-

241. In his suit, the seaman alleged that the master breached 

the duty owed to him in failing to put into an intermediate port 

and procure the proper surgical attention. The district court 

entered a $3,000 judgment for the seaman which the court of 

appeals subsequently affirmed. 

 On appeal, the Supreme Court first noted that it had 

recently recognized the shipowner's duty to provide proper 

medical treatment for a seaman who becomes ill or injured in The 

Osceola. The Court ultimately held that the master had breached 

his duty to the seaman by failing to put into an intermediate 

port sooner. The Court further held that the fact that the 

seaman did not request to be taken to an intermediate port was of 
 This Court has held that it is not enough 

to give a sick man a hospital ticket. If he 

is ill and penniless transportation to the 

place of treatment must be provided . . . . 

Sims, 186 F.2d at 973-74. This obligation is inherent in the 

seaman's employment, but it is not limited by traditional 

concepts of contract. 

 This obligation for maintenance and cure is 

. . . "imposed by the law itself as one 

annexed to the employment . . . . The duty . 

. . is one annexed by law to a relation, and 

annexed as an inseparable incident without 

heed to any expression of the will of the 

contracting parties." Cortes v. Baltimore 

Insular Line, 287 U.S. 367, 371-72 (1932). 

It is no more a contract than the obligation 

of a husband to support his wife is one of 

contract. Each arises out of a relationship 

voluntarily entered into. But these duties 

are imposed by the law as an incident to the 

relationship, not a matter of contract. . . . 

[T]herefore, . . . the usual rules of damages 

for breach of contract to pay money are [not] 

applicable. (emphasis added).18 

(..continued) 

no significance because the master was his legal guardian and had 

a duty to look out for the safety and care of his seamen, whether 

or not such a request was made. Id. at 247. 

18 We have, however, limited the right to recover additional 

damages when one is not injured on the open sea. See Graham v. 

Alcoa S.S. Co., Inc., 201 F.2d 423, 425 (3d Cir, 1953) ("This is 

not an action for failure to give proper medical care aboard 

ship, however, so that the Iroquois and Cortes cases are not 

precisely apposite. Plaintiff must sink or swim with the Sims

case."). Graham reasoned that consequential damages would not be 

allowed where the injury did not occur at open sea unless the 

sailor first informed the employer of the injury and requested 

maintenance and cure. Here, as in Sims, Deisler did just that. 

"In Sims, . . . we held the defendant liable for its failure to 

supply maintenance and cure, but we limited liability to damages 

for those consequences occurring after notice of defendant for 

libellant's need of care and of his inability to procure it 
Id. at 974. Although the court's analogy to the marital 

relationship can not withstand the social evolution that has 

occurred since the court spoke, the court's pronouncement of the 

permissible recovery for failure to promptly provide maintenance 

and cure remains valid. See also Neville v. American Barge Line 

Co., 276 F.2d 117, 120 (3d Cir. 1960). There, a prior suit had 

established that the plaintiff was entitled to maintenance and 

cure up until December 4, 1951, and that plaintiff had not yet 

reached the point of maximum cure. Id. at 118-19. Thereafter, 

plaintiff instituted a second suit because no money had been paid 

for maintenance and cure after December 4, 1951. In the second 

action, plaintiff sought maintenance and cure, along with lost 

wages and damages for pain and suffering. Id. at 119. The claim 

for consequential damages was based upon plaintiff's assertion 

that the failure to provide maintenance and cure prevented her 

from obtaining psychiatric treatment, and had thus caused 

additional suffering and loss of earnings. Id. at 120. A jury 

awarded plaintiff maintenance and cure and lost wages as well as 

damages for the pain and suffering that resulted from withholding 

maintenance and cure. We reversed the award of consequential 

damages because of insufficient proof of causation. However, we 

(..continued) 

because of indigence." Id. at 425. Here, the district court 

concluded that Deisler's pain and suffering resulted from his 

inability to afford necessary surgery. Findings of Fact, ¶ 31. 
expressly reaffirmed the principle that consequential damages are 

recoverable for the wrongful failure to provide maintenance and 

cure. Id. (citing Sims, 186 F.2d at 975). The claim in Neville

was brought under general maritime law. Thus, consequential 

damages for failure to pay maintenance and cure are not limited 

to claims under the Jones Act. This is consistent with the 

Supreme Court's decisions in Cortes and Vaughn, supra. 

 In Vaughn, plaintiff seaman had worked as a taxi driver 

after becoming ill while in defendant's employ. The employer 

refused to pay maintenance and cure because it doubted that 

plaintiff had really been ill. "Ultimately [the employee] was 

required to hire an attorney and sue in the courts to recover 

maintenance and cure, agreeing to pay the lawyer a 50% contingent 

fee." Vaughn, 369 U.S. at 529. The district court granted 

maintenance and cure but ordered that the amount plaintiff had 

earned as a taxi driver be deducted from the recovery. The court 

further limited recovery to damages directly relating to the 

employer's obligation to provide medical treatment for the 

sailor. The court reasoned that plaintiff was not entitled to 

attorney's fees, and could only recover damages which resulted 

"when the failure to furnish maintenance and cure caused or 

aggravated the illness or other physical or mental suffering." 

Id. The court of appeals also denied counsel fees reasoning that 

they are not recoverable in suits for breach of contract. 
 The Supreme Court disagreed on both points. The Court 

reasoned that "[w]hile failure to give maintenance and cure may 

give rise to a claim for damages for the suffering and for the 

physical handicap which follows (The Iroquois, 194 U.S. 240, 24 

S.Ct. 640, 48 L.Ed. 955), the recovery may also include 

'necessary expenses.' Cortes v. Baltimore Insular Line, 287 U.S. 

367, 371, 53 S.Ct. 173, 174, 77 L.Ed. 368." Id. at 530. The 

Court reasoned that the shipowner's duty to provide maintenance 

and cure "was among 'the most pervasive' of all and . . . not to 

be defeated by restrictive distinctions nor 'narrowly confined.' 

When there are ambiguities or doubts, they are resolved in favor 

of the seaman." Id. at 532 (citations omitted). The Court also 

rejected the ruling that wages earned as a cab driver should be 

deducted from any recovery. 

 It would be a sorry day for seamen if 

shipowners, knowing of the claim for 

maintenance and cure, could disregard it, 

force the disabled seaman to work, and then 

evade part or all of their legal obligation 

by having it reduced by the amount of the 

sick man's earnings . . . . This result is 

at war with the liberal attitude that 

heretofore has obtained and with admiralty's 

tender regard for seamen. 

Id. at 533 (citing Yates v. Dann, 223 F.2d 64, 67 (3d Cir. 1955)) 

(if seaman is found to be still in need of maintenance and cure 

the fact that the seaman is forced by financial necessity to 

return to his regular employment will not serve as a bar to his 

recovery). 
 We therefore disagree with McCormack's assertion that the 

additional damages that Deisler seeks are limited to the Jones 

Act. Brief of Appellant at 13-14. We believe that the district 

court properly awarded Deisler lost wages, damages for pain and 

suffering, and prejudgment interest arising from McCormack's 

failure to pay him maintenance and cure. 

 McCormack further asserts that even where such additional 

damages and expenses are awarded on a maintenance and cure claim, 

they are allowed only where there is a willful and wrongful 

refusal to pay maintenance and cure and that the record here does 

not support the district court's conclusion that McCormack's 

refusal to pay maintenance and cure was arbitrary or capricious. 

As noted above, in Sims we held that consequential damages are 

allowed in a claim for maintenance and cure in order to make the 

injured seaman whole, and they are not dependent upon a showing 

of bad faith. See Sims, 186 F.2d at 974. That holding was based 

upon the analogous situation in tort law: 

 One man hurts another in an accident. The 

actor fails to provide medical care or 

alleviate the harm suffered by the victim 

honestly thinking that he was not (1) himself 

negligent or (2) the victim was 

contributorily negligent. If the trier of 

fact disagrees with the actor on these 

conclusions, defendant is liable for full 

damages suffered, although some of them could 

have been mitigated by prompt action on his 

part. 

Id. at 974-75. 
 In Morales v. Garijak, 829 F.2d 1355, 1358 (5th Cir. 1987), 

the court suggests that compensatory damages may not be recovered 

unless the shipowner's refusal is unreasonable. However, we do 

not need to address the specifics of this argument as this record 

clearly supports a finding that McCormack's refusal was not 

reasonable. 

 From the outset, the only reason offered for McCormack's 

failure to pay maintenance and cure was the assertion that no 

accident had occurred. During the trial, the district court 

questioned Bernard Lillis, McCormack's Chief Financial Officer, 

about McCormack's reason for denying Deisler's claim: 

 Lillis: If one person had come along and said 

that they saw Mr. Deisler fall over the 

wheelbarrow I would have changed my decision. 

 . . . 

 The Court: Mr. Lillis has made it very clear 

that the reason maintenance and cure was 

denied was because he didn't think the 

accident ever happened. Isn't that right, 

Mr. Lillis? 

 Mr. Lillis: That's right, your honor. 

 . . . 

 The Court: Let me pursue this. Is it your 

position that the only reason that 

maintenance and cure was denied was because 

your company felt that an accident never 

happened? 

 Mr. Lillis: That is true, your honor. 

 The Court: An accident of Mr. Deisler falling 

over a wheelbarrow on June 15, 1989? 

 Mr. Lillis: That's correct. 

 The Court: That is it? 

 Mr. Lillis: That is it. 

(emphasis added). Findings of Fact, ¶ 49 n.5, Suppl. App. at 45-

46. 
 However, McCormack never interviewed Deisler, and although 

Melendez denied seeing Deisler fall he told Lamorte's 

investigator that he saw Deisler "dusting himself off" after the 

wheelbarrow incident. Suppl. App. at 169. In addition, Ellis 

told Lamorte's investigator that he saw "the wheel barrow lying 

on its side, the bags on the ground, and Deisler standing there 

kicking his feet." Id. Rather than accept that testimony as 

corroboration that Deisler had been injured, McCormack 

tenaciously used it to support the rather dubious position that 

no accident could have occurred because no one saw it. Finally, 

McCormack disregarded their own investigators' recommendations 

that they pay Deisler maintenance and cure. Although McCormack 

was under no obligation to accept the recommendations of Lamorte 

or American Maritime, the district court did not have to ignore 

McCormack's rejection of its own expert's recommendation. 

 Similarly, the district court properly noted that 

McCormack's reason for denying Deisler's claim shifted from 

pillar to post as the case progressed. 

 Defendant's primary defense to the 

maintenance and cure claim was that plaintiff 

lied about an accident occurring. Second, 

defendant contended that no injury occurred 

even if the incident did. Third, defendant 

contended that if plaintiff was suffering 

from any condition, which it denied, it preexisted the date of the incident. Next, 

defendant contended that even if an injury 

occurred, it was fully resolved, and no 

further medical care was necessary. Thus, 

the presentation of plaintiff and Steve 

Melendez as liability witnesses was 

necessary. Plaintiff was required to move 
for a new Jones Act trial because of 

defendant's misrepresentations of material 

facts. 

Findings of Fact, ¶ 59. That assessment is supported by the 

record. 

 It is now for McCormack, not Deisler, to bear the extra cost 

occasioned by McCormack's intransigence. This includes the wages 

Deisler would have been earning had McCormack met its obligation 

to finance the corrective back surgery, and damages for the pain 

and suffering he has endured while awaiting that surgery. See

Cortes, supra. 
 1. The Law of the Case

 Nor does the law of the case preclude Deisler from 

recovering consequential damages under general maritime law 

despite the jury's Jones Act verdict in favor of defendants. 

"The doctrine of the law of the case dictates that 'when a court 

decides upon a rule of law, that rule should continue to govern 

the same issues in subsequent stages in the litigation.'" In re 

Resyn Corp., 945 F.2d 1279, 1281 (3d Cir. 1991) (quoting Devex 

Corp. v. General Motors Corp., 857 F.2d 197, 199 (3d Cir. 1988)); 

see also Arizona v. California, 460 U.S. 605, 618 (1983)19; 

Schultz v. Onan Corp., 737 F.2d 339, 345 (3d Cir. 1984) (the law 

of the case doctrine applies "to issues that were actually 

discussed by the court in the prior appeal [and] to issues 

decided by necessary implication."). While the doctrine most 

commonly serves to bar litigants from rearguing issues previously 

decided on appeal, see CPC Int'l, Inc. v. Northbrook Excess & 

Surplus Ins. Co., 46 F.3d 1211, 1215 (1st Cir. 1995); United 

States v. Rivera-Martinez, 931 F.2d 148, 150 (1st Cir. 1991); 

Schultz, 737 F.2d at 345, we have held that the dismissal of an 

appeal terminates the cause of action and the judgment of the 

district court becomes the law of the case. See Hook v. Hook & 

Ackerman, 233 F.2d 180, 183 (3d Cir. 1956).20 

 

19 "Unlike the more precise requirements of res judicata, law 

of the case is an amorphous concept." 460 U.S. at 618. 

20 The "[l]aw of the case directs a court's discretion, it 

does not limit the tribunal's power." Schultz, 737 F.2d at 345 

(citations omitted). 
 McCormack argues that since Deisler elected to dismiss the 

Jones Act claim after trial the law of the case precludes 

recovery of consequential damages under general maritime law. 

That argument rests upon the mistaken belief that such lost wages 

and damages for pain and suffering are incidents of negligence 

under the Jones Act and not recoverable under the general 

maritime law. As we explained above, such damages may be 

recovered for the failure to provide maintenance and cure in the 

absence of a Jones Act claim. Thus, the law of the case is not a 

bar to plaintiff's recovery. 

 2. Prejudgment Interest.

 The award of prejudgment interest was also proper. Unlike 

attorney's fees and litigation expenses (which were not regarded 

as part of the merits of judgment at common law) prejudgment 

interest has traditionally been considered part of the 

compensation due to a plaintiff. See Osterneck v. Ernst & 

Whinney, 489 U.S. 169, 175 (1989). The Supreme Court has 

repeatedly held that prejudgment interest is merely an element of 

a plaintiff's complete compensation. See id.; West Virginia v. 

United States, 479 U.S. 305, 310, & n.2 (1987). Interest must be 

allowed if plaintiff is to be truly made whole for defendant's 

breach of its duty to provide maintenance and cure. See Vaughn, 

supra. 

 3. Attorney's Fees and Costs.
 Attorney's fees and costs differ from interest, lost wages 

and damages for pain and suffering because attorney's fees and 

costs cannot be recovered unless plaintiff can first establish 

defendant's bad faith or recalcitrance. 

 Recognizing the importance of a seaman's 

right to be made whole through the recovery 

of maintenance and cure, the federal courts 

have fashioned a supplemental remedy for 

instances in which a ship operator's 

unjustified refusal to own up to its 

responsibilities to furnish maintenance and 

cure forces a seaman to incur the expense of 

a lawsuit to collect that which is due. When 

a ship operator fails to make a prompt, good 

faith investigation of a seaman's claim for 

maintenance and cure or otherwise takes a 

"callous" or "recalcitrant" view of its 

obligations, the seaman may recover legal 

expenses on top of maintenance and cure. See

Vaughn, 369 U.S. at 530-531 . . . . 

Rodriguez Alvarez v. Bahama Cruise Line, Inc., 898 F.2d 312, 316 

(2d Cir. 1990). 

 However, as stated above, the record here fully supports the 

district court's conclusion that McCormack's refusal to pay 

Deisler maintenance and cure was arbitrary and capricious. 

Accordingly, we will affirm the district court's award of 

attorney's fees and costs. 

 C. Allocation of Fees and Costs

 Alternatively, McCormack argues that even if the award of 

attorney's fees and costs was proper, the district court acted 

arbitrarily in allocating 90% of plaintiff's attorney's fees to 

the general maritime claim and refusing to make an allocation of 
costs between it and the Jones Act claims. The district court 

candidly acknowledged that "[g]iven the overlapping evidence on 

the Jones Act claim and the maintenance and cure claim, it is 

difficult to separate out services attributable solely to the 

unsuccessful Jones Act claim." Findings of Fact, ¶ 59. 

Notwithstanding this caveat, the court held that based on its 

"review of the record a fair estimate of counsel time expended in 

attempting to prove defendant's negligence under the Jones Act is 

10%." Id. 

 The district court must exercise its informed discretion in 

awarding attorney's fees. Pawlak v. Greenawalt, 713 F.2d 972, 

977 (3d Cir.), cert. denied, 464 U.S. 1042 (1984) (citation 

omitted). Thus, our standard of review is a narrow one. "We can 

find an abuse of discretion if no reasonable [person] would adopt 

the district court's view. If reasonable [people] could differ 

as to the propriety of the action taken by the trial court, then 

it cannot be said that the trial court abused its discretion." 

Silberman v. Bogle, 683 F.2d 62, 65 (3d Cir. 1982) (citation 

omitted). 

 McCormack argues only that "[i]t is inconceivable that only 

10% of fees are attributable to the Jones Act jury trial, in 

which plaintiff unsuccessfully tried many issues not implicated 

in the maintenance and cure claim." Presented with no more than 

this assertion of "inconceivability," we cannot say that the 

division of attorney's fees was an abuse of discretion. Although 
the required division of fees is difficult, our review of the 

record does not allow us to conclude that the district court 

erred in slicing the pie as it did. Accordingly, we will affirm 

the district court's allocation of the award of attorney's fees 

and costs. 

 D. The Deposition of Charles Ellis 

 McCormack argues that it should have been allowed to 

introduce the deposition of Captain Ellis under Federal Rule of 

Civil Procedure 32(a)(3) as Ellis was more than 100 miles from 

the place of trial, was no longer McCormack's employee, and thus 

was unavailable within the meaning of that Rule. The district 

court did not allow McCormack to use Ellis' deposition because it 

found that Deisler took the deposition under the misapprehension 

that Ellis had not witnessed any part of Deisler's accident. The 

court reasoned that Deisler was therefore unlikely to have 

focused upon Ellis' observations during the deposition. 

 Plaintiff's counsel's strategy during the 

Ellis deposition was to avoid creating a 

deposition record which could be used against 

his client at trial in the event of Ellis's 

unavailability at trial. This strategy is a 

plausible response to defendant's misleading 

answer to the interrogatory in question. 

Findings of Fact, ¶ 12 n.2. 

 Even assuming the district court erred in excluding the 

deposition, we believe that any error in this regard was 

harmless. See McQueeney v. Wilmington Trust Co., 779 F.2d 916, 

923-28 (3d Cir. 1985) (errors are harmless if it is highly 
probable a party's substantial rights were not affected). The 

excluded testimony adds little that is not contained in the 

Lamorte report which the district court did consider. Ellis 

testified at the deposition that Deisler told him that he 

(Deisler) was not helping to off-load a cable from the bow of the 

dredge because he had a bad back. App. at 193. The Lamorte 

report states that after Ellis asked Deisler to help move some 

cables Deisler informed Ellis of his bad back, but did not blame 

it on any mishap with a wheelbarrow. Suppl. App. at 169. 

Secondly, Ellis testified at the deposition that he saw Deisler 

pushing the "wheelbarrow" but did not watch him perform the whole 

job. App. at 195. Similarly, the Lamorte report states that 

Ellis only saw "the wheelbarrow lying on its side, the bags lying 

on the ground, and Deisler standing there kicking his feet." 

Suppl. App. at 169. Finally, both the Lamorte report and the 

deposition transcript state that Ellis did not learn of Deisler's 

injury until after Deisler was fired. Suppl. App. at 168; App. 

at 197. 

 Thus, any error in failing to admit Ellis' deposition was 

harmless as the district court considered the same testimony by 

way of the Lamorte report. 

 E. Challenges to the District Court's Findings of Fact

 McCormack also challenges a series of factual findings, all 

of which are supported by the record. We therefore find these 
challenges to the district court's findings of fact to be lacking 

in merit. 

 First, McCormack claims that the district court erred in 

finding that plaintiff suffered a job related injury because the 

finding was based upon an erroneous belief that Ellis had 

witnessed the accident. There is ample evidence to support the 

district court's finding that Ellis witnessed the accident. 

Melendez testified that Ellis observed the event and exclaimed: 

"Oh, look, he fell. He busted his a...," as he watched. In 

addition, both Deisler and Melendez testified that the accident 

occurred. 

 Second, McCormack claims that the district court erred in 

finding that plaintiff's accident and his reports of it occurred 

before plaintiff was notified that he had been fired. Deisler 

testified that he reported the accident to both Melendez and 

Ellis before he was fired and that he was filling out the 

accident report when he was given his dismissal notice. Melendez 

corroborated part of that testimony. There was testimony that 

Deisler completed the accident report on June 16, and thereafter 

had his own doctor fill out and return a New Jersey Disability 

Form. 

 McCormack also argues that the testimony of Brad Simek and 

William Daniel contradict the district court's findings. Simek 

inferred no accident had occurred because any accident should 

have been reported to him, and none was. Daniel testified that 
Deisler reported the accident to him after Deisler had been 

terminated. Regardless of when, if ever, Deisler told Simek or 

Daniel of his accident, the evidence that Deisler told Ellis and 

Melendez of his injury prior to being terminated supports the 

district court's finding. 

 Third, McCormack argues that the district court erred in 

finding that the investigation of Deisler's claim was not 

conducted in good faith. McCormack claims that the court based 

this finding upon an equally erroneous finding -- namely, that 

the only reason McCormack did not pay maintenance and cure was 

that it believed that no accident occurred and that the medical 

evidence supporting Deisler's claim was ignored. 

 We previously detailed the abundance of evidence supporting 

the district court's finding that McCormack did not rely on 

Deisler's pre-existing medical condition either in hiring him or 

in its decision not to pay maintenance and cure. Moreover, the 

record supports a finding that all of the evidence which tended 

to corroborate Deisler's claim was ignored by McCormack. 

 Finally, McCormack argues that the district court erred in 

finding that Deisler will reach maximum medical improvement 

approximately four months after surgery. McCormack claims that 

Deisler admitted in his trial testimony that his doctors told him 

toward the end of 1989 that his medical condition would not 

improve. Brief of Appellant at 25. McCormack claims that the 

end of 1989, rather than four months after surgery, is the point 
of "maximum cure." However, McCormack's position is based upon 

an incomplete recitation of Deisler's testimony. Deisler 

testified that his doctors told him his condition would not 

improve without surgery.

21 

 III. CONCLUSION

 For the reasons stated above we find that McCormack's 

arguments are without merit. Accordingly, the judgment of the 

district court will be affirmed.22 

 

21 Defendants failed to include the following testimony in 

their brief: 

 Q. Did Dr. Molzen tell you that surgery 

would improve your condition? 

 A. That is a tricky question. Dr. Molzen 

recommended surgery for me, yes. Yes, it 

would improve my condition. There is also a 

threat that it will not be successful, but 

yes it would help. 

 Q. Dr. Gott, did he tell you that surgery 

would improve your condition? 

 A. Yes, he did. 

 Q. But they also told you that there were risks 

 involved. 

 A. Absolutely. 

 Q. Is that why you hesitated? 

 A. Yes. 

Suppl. App. at 20. 

22 We will also grant Deisler's motion for reimbursement of the 

costs associated with Deisler's submission of a Supplemental 

Appendix. The Appendix filed by McCormack was inadequate and the 

editing of the testimony of Melendez and Deisler was so selective 

as to be misleading. Deisler therefore had to file the 

Supplemental Appendix to clarify the record.