United States Court of Appeals

For the First Circuit

No. 03-1696

PETITION OF RJF INTERNATIONAL CORPORATION FOR EXONERATION

FROM OR LIMITATION OF LIABILITY, CIVIL AND MARITIME.

__________

APPEAL FROM THE UNITED STATES DISTRICT 

COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

 Boudin, Chief Judge,

Selya, Circuit Judge,

and Stahl, Senior Circuit Judge.

Thomas E. Clinton with whom Clinton & Muzyka, P.C. was on

brief for petitioner, appellant RJF International Corporation.

Howard B. Klein with whom John S. Foley and Decof & Decof were

on brief for claimant, appellee Kimberly Moody Hanna, as legal

guardian of James Avery.

January 8, 2004
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BOUDIN, Chief Judge. On August 11, 2001, James Avery,

then 18 years old, was employed on the M/V Reflections, a yacht

docked in Newport, Rhode Island. In the course of his duties, he

fell from the yacht, struck his head on the dock, and fell into the

water. Before his rescue, he spent 7 to 10 minutes under water.

The result was anoxic brain injury--anoxic refers to the lack of

oxygen--so severe that his life was despaired of. 

By the time of his discharge from the last of several

hospitals (in March 2002), Avery could not speak intelligibly but

could follow commands, respond to questions by closing his eyes,

make sounds, and was starting to use his head and chin to activate

assistive equipment. His doctors then formulated plans for further

rehabilitation, opining that more cognitive and functional progress

was possible. They contemplated that Avery would be given

inpatient treatment at a specialized institute in Chicago and then

receive further outpatient day treatment at a Florida facility.

During this time, the vessel owner had paid heavily for

Avery's medical expenses as part of its obligation to provide

maintenance and cure for an injured seaman. See Calmar S.S. Corp.

v. Taylor, 303 U.S. 525, 527-29 (1938). Obtaining its own medical

evaluation, the vessel owner concluded that Avery now suffered from

permanent conditions that were beyond its responsibility under the

maintenance and cure doctrine. When the owner refused to fund the

new treatment plan, Avery's guardian filed a motion to compel
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payment, and the owner cross moved to terminate maintenance and

cure benefits. Both motions were filed in the context of an

admiralty proceeding that had been initiated by the owner on

December 12, 2001, to limit its liability with regard to this

incident. 46 U.S.C. app. §§ 181-196 (2000); Rule F of the

Supplemental Rules for Certain Admiralty and Maritime Claims of the

Federal Rules of Civil Procedure.

The district court held an evidentiary hearing in April

2003, receiving on Avery's behalf deposition testimony from Avery's

treating physicians and his mother, and Avery's medical records;

the owner offered testimony from a neuro-psychologist and a letter

from a neurologist. On May 7, 2003, the district court issued a

decision granting Avery's motion to order further care and denying

the owner's motion. In re RJF Int'l Corp., 261 F. Supp. 2d 101,

106-07 (D.R.I. 2003). The court found that Avery had not yet

reached a point of "maximum medical recovery" and that therefore

the obligation to provide maintenance and cure continued. Id. at

105-06.

On this appeal, the owner makes three different

arguments. The first is that the district court misread the law

because it ordered maintenance and cure for one who now suffers

from brain damage and associated symptoms (e.g., spastic muscle

reactions) that are clearly permanent. This, says the owner, is

contrary to Farrell v. United States, 336 U.S. 511 (1949), Vella v.
1See generally Pelotto v. L & N Towing Co., 604 F.2d 396, 400

(5th Cir. 1979) ("Thus, where it appears that the seaman's

condition is incurable, or that future treatment will merely

relieve pain and suffering but not otherwise improve the seaman's

physical condition, it is proper to declare that the point of

maximum cure has been achieved."); Cox v. Dravo Corp., 517 F.2d

620, 623, 627 (3d Cir. 1975) (maintenance and cure payments not

required if additional treatment is only to "arrest further

progress of the disease or to relieve pain").

2The traditional remedy for damages is based on the

unseaworthiness of the vessel under general maritime law; but a

statutory remedy for negligence under the Jones Act is also

commonly employed, 46 U.S.C. app. § 688 (2000); see Ferrara v. A.

& V. Fishing, Inc., 99 F.3d 449, 453-54 (1996), and Avery has

claims under both theories pending before the district court. In

re RJF, 261 F. Supp. 2d at 102 n.2. 

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Ford Motor Co., 421 U.S. 1 (1975), and other cases limiting

maintenance and cure to the period in which the injured seaman is

moving toward recovery.1

When his condition has stabilized and further progress

ended short of a full recovery, the seaman may still have a remedy

to compensate him for his permanent injury,2 but is no longer

entitled to maintenance and cure. Thus, in Farrell the Court said

that maintenance and cure did not extend to ongoing medical care to

ease the pain of headaches and to control convulsions deemed

permanent conditions. 336 U.S. at 512-13, 519. In Vella, relief

from permanently recurring dizzy spells was denied, although the

shipowner was required to pay maintenance and cure up to the point

where the condition was medically diagnosed as permanent. 421 U.S.

at 2-6.
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In this case, the difficulty for the owner is that the

district court recognized the fuzzy boundary between improvement

and palliation, but it found that the evidence showed that Avery

was still capable of improvement through continued treatment. In

re RJF, 261 F. Supp. 2d at 105-06. The testimony of Avery's

doctors is straightforward that further long-term improvement is

still possible, and even the competing diagnoses by the owner's

experts leave some room for such a conclusion. Certainly the

district court did not commit clear error on this issue of fact.

See Capone v. Boat St. Victoria, 1989 A.M.C. 1782, 1797 (D. Mass.

1989).

At some points in his main brief and oral argument,

counsel for the owner appears to suggest that the case law cuts off

maintenance and cure whenever a permanent condition exists,

regardless of whether its severity can be reduced. But this

reading would contradict repeated references in the case law to

maximum medical recovery as the dividing line. E.g., Vaughan v.

Atkinson, 369 U.S. 527, 531 (1962). In Farrell and Vella, there is

no indication that further improvement in the underlying condition

was the purpose of the care there sought. Farrell, 336 U.S. at

512-13; Vella, 421 U.S. at 2-3.

The owner's second argument on this appeal is that the

district court erred because the rehabilitation envisaged for Avery

is directed in part to coping with muscle spasticity and
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contractions. The owner says, with some support, that these are

mere symptoms of the permanent brain injury. He then argues,

blending this new argument into the old, that this shows that

curative treatment is no longer available and that any further

expenditure for Avery's rehabilitation is not properly one for

maintenance and cure.

But Avery's doctors clearly opined that he could make

further cognitive improvement as a result of treatment--not just by

the passage of time--and their testimony may also suggest that even

his muscle ailments can be permanently lessened. Certainly

evidence as to the former supports the district court's finding

that "further rehabilitation would be more than simply palliative,

and would improve his medical condition." In re RJF, 261 F. Supp.

2d at 105. This is enough to support an award of maintenance and

cure in aid of permanent improvement short of a complete cure.

Of course, the owner might have tried to distinguish

between curative treatment still possible and accompanying

palliative measures, and then argued that the cost of palliation

offered in the course of treatment should be segregated and

excluded from the owner's obligation. Some segregation would be

silly--imagine excluding pain medicine from the setting of a broken

bone--but perhaps in some settings a distinction might be drawn.

Such a distinction could matter because maintenance and cure is

exempt from the limitation of liability rules in admiralty.
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Brister v. A.W.I., Inc., 946 F.2d 350, 360-61 (5th Cir. 1991); see

also Gilmore & Black, The Law of Admiralty, at 901-02 (2d ed.

1975). 

However, in this court the owner has adopted an all or

nothing approach (although it appears that it did attempt to make

a segregation argument in the district court). It is not our task

to devise alternative arguments that have not been pressed on

appeal. Indeed, such a segregation argument in this case would

involve both legal and factual issues of some complexity which

neither side has briefed.

Similarly, the owner's claim that the maintenance and

cure award should be curtailed because Avery was allegedly eligible

for Medicare was not presented in timely fashion in the district

court; before the hearing, the owner argued only that medical

insurance would cover palliative care, adding tersely that Avery

was "also entitled to Medicare or Medicaid." The present claim was

raised only in a closing brief intended to sum up after the hearing

and not to raise new issues. Thus this argument too must await

another day.

Affirmed.