THE
SHIPOWNER’S
QUANDARY ON HIV/AIDS: TO TEST OR NOT TO TEST? TO TREAT OR NOT TO TREAT?
(Published February 2004)
At one time HIV/AIDS was considered to be a deadly killer: someone who had contracted the virus might easily presume they would die within months or at most within a few years, depending on the disease’s stage. But time and science have shown that to be untrue: consider Magic Johnson and Greg Louganis. By taking medications, both of these men have lived completely normal lives for over a decade since being diagnosed. Although infected with an incurable, deadly disease, modern medicine appears to have extended their lives indefinitely.
Examples such as these raise questions for shipowners in the context of maintenance and cure. Should a shipowner pay for the anti-viral drug therapy of a crewmember with HIV/AIDS when the disease manifests itself while the seaman is in service of the vessel? Is a shipowner legally obligated to do so? What if the seaman’s pre-board medical examination shows he or she contracted the disease before joining the vessel? Can a shipowner even legally test a seaman for HIV/AIDS during its pre-board medical examination before he or she joins the vessel?
Defining “Maximum Cure”
For
many decades, in the context of a seaman’s incurable disease, the case
law made clear that a shipowner’s obligation to provide cure ended once
the seaman’s condition was permanent. And in the instance of an incurable
disease, permanency came at the point when a disease was declared permanent
or incurable. This, in fact, remains the majority view as expressed by no less
than the Supreme Court. See, e.g., Vella v. Ford Motor Company, 421
U.S. 1, 5 (1975) (a fall resulting in permanent damage to the balancing mechanism
of the seaman’s ear; “The shipowner shall be liable to defray the
expense of medical care and maintenance until the sick or injured person has
been cured, or until the sickness or incapacity has been declared of a permanent
character.”); Farrell v. U.S., 336 U.S. 511, 512-19 (1949) (a
fall resulting in recurring headaches and epilepsy; no maintenance and cure
beyond the time of maximum cure, even when medical attention might be required
to relieve recurring conditions.); Cella v. U.S., 998 F.2d 418, 430
(7th Cir. 1993) (no medication for polymyositis, incurable muscle condition,
caused by shipboard injury); Cox v. Dravo Corp., 517 F.2d 620, 621,
623-27 (3rd Cir. 1975); cert. denied, 404 U.S. 825 (rejecting claim
for therapy for permanent headaches and dizzy spells after shipboard injury;
overruling two prior Third Circuit cases holding maintenance and cure extended
so long as necessary to arrest further progress of the disease); Desmond
v. U.S., 217 F.2d 948, 950 (2nd Cir. 1954), cert. denied, 349
U.S. 911 (incurable arteriosclerosis; shipowner “liable for maintenance
and cure only until the disease is cured or recognized as incurable . . . if,
incurable, the shipowner has no further liability, whether or not the patient
requires additional treatment to restrain degeneracy or relieve pain.”); Muruaga
v. U.S., 172 F.2d 318, 321 (2nd Cir. 1949) (hypertensive cardiac disease
requiring lifetime treatment; “[W]hen maintenance and cure has brought
about all the improvement to be expected in an incurable disease, the shipowner’s
liability ends and thereafter the health of the seaman is at his own risk so
far as the shipowner is concerned. If the seaman thereafter needs attention
to maintain his improvement at the maximum, to assist him in recovery of relapses,
or to restrain the progress of the disease, the shipowner is not bound to provide
that.”).
Then, in the late 1970’s and particularly in the early to mid 1990’s, some courts began to shift the focus from whether a disease is incurable or permanent to whether the treatment would improve or better the seaman’s physical condition.
In Pelotto
v. L&N Towing Co., 604 F.2d 396, 400 (5th Cir. 1979), a shipowner
was held liable for a seaman’s ongoing treatment for his knee injury.
The court held: “The accepted legal standard holds that maintenance
is achieved when it appears probable that further treatment will result in
no betterment of the seaman’s condition . . . Thus, where it appears
that the seaman’s condition is incurable, or that future treatment
will . . . not otherwise improve the seaman’s physical condition, it
is proper to declare that the point of maximum cure has been achieved.” See
also Kratzer v. Capital Marine Supply, Inc., 490 F.Supp. 222, 229-30
(M.D. La. 1980), aff’d, 645 F.2d 477 (5th Cir. 1981); Andrews
v. Dravo Corp., 288 F.Supp. 142, 147, aff’d, 406 F.2d
785 (3rd Cir. 1969) (“It seems certain that his underlying vascular
disease is incurable but the duty of providing maintenance and cure extends
to the time when no improvement in the condition of the seaman may be reasonably
expected to result from nursing, care and medical treatment. In this case,
we think the determination of that time was for the jury . . . .”); Sefcik
v. Ocean Pride Alaska, Inc., 844 F.Supp. 1372, 1373-74 (D. Alaska 1993)
(bilateral carpal tunnel syndrome, reflex sympathy dystrophy and tendinitis,
with a disagreement as to whether added psychological or psychiatric treatment
was merely palliative; “Maximum cure is reached when it is medically
determined that further improvement in a plaintiff’s health is not
reasonably possible . . . [the doctor] stated that plaintiff’s condition
would deteriorate if he does not continue his treatment. Because there is
disagreement as to whether additional psychological/psychiatric treatment
is necessary for plaintiff, defendant is directed to continue maintenance
payments until the issue is resolved at trial.”)
In 1996, in perhaps the most significant departure from the majority rule, Judge Marcus, a federal judge in the Southern District of Florida, issued a 58 page opinion in Costa Crociere, S.P.A. v. Rose, 939 F.Supp. 1538, 1552-53 (S.D. Fla 1996). In that case, the shipowner was held liable for either lifetime kidney dialysis or a transplant for a seaman’s incurable kidney disease. Judge Marcus reasoned: “[T]hese [treatments] do more than improve quality of life or simply make him feel better: they extend life and make the patient healthier in the most marked and profound sense . . . The rapid advance of contemporary medical knowledge, coupled with the development of highly expensive but extraordinarily promising treatments, like dialysis and transplantation, greatly expands the panoply of procedures that must be exhausted before an ill or injured seaman reaches the point at which no further betterment of his condition is conceivable.” Some argue that Costa Crociere and similar cases constitute the “modern view,” on incurable diseases, obligating a shipowner to provide medical treatment indefinitely, as long as the treatment “betters” the seaman’s condition or prolongs his or her life.
However,
the more conservative approach of denying treatment in such instances, including
anti-viral drug therapy in cases of HIV/AIDS, remains the majority opinion
among the Circuit Courts, as well as the only opinion on the issue enunciated
by the U.S. Supreme Court. In light of the state of the case law, it seems
unlikely a shipowner would be subject to the penalty of attorney’s fees
or punitive damages in this instance, so that the risks associated with doing
so are minimal. Opening the floodgates to purchasing costly anti-viral drug
therapy for every crewmember with HIV/AIDS, however, is an extremely risky
proposition.
In light of the potential for very expensive lifetime liability to a seaman with HIV/AIDS, shipowners have a vested interest in screening crewmembers for the virus before employment. In the context of an American crewmember, a shipowner would be wise to ensure it complies with the provisions of the Americans With Disabilities Act (ADA) before undertaking such screening.
Implications of ADA
Title
I of the ADA prohibits discrimination against individuals with HIV/AIDS when
screening, testing, hiring, or firing employees, as well as in assigning job
duties. However, a discriminatory action does not violate the ADA if it is
job related and consistent with business necessity, or necessary to prevent
a direct threat of harm to others, and the discriminatory action cannot be
eliminated by reasonable accommodation, including modifying existing policies
and procedures.
Many crewmembers, of course, will not pose a “direct threat” of harm to others simply because they have the HIV/AIDS virus. See e.g., EEOC v. Dolphin Cruises, 915 F.Supp. 1550 (S.D. Fla 1996) (shipboard entertainer with HIV does not pose a direct threat - - current medical knowledge confirms HIV cannot be transmitted through casual contact); Doe v. Oregon, 2001 U.S. Dist. LEXIS 17449, *13-*22 (ski patroller with HIV does not pose a direct threat of harm). However, other crewmembers such as shipboard medical or galley personnel who prepare food may, indeed, pose a direct threat of harm due to their having the virus. See, e.g., Waddell v. Valley Forge Dental Assoc., 276 F.3d 1275, 1280-84 (11th Cir. 2001)( dental hygienist with HIV posed a direct threat to others); EEOC v. Prevo’s Family Market, Inc., 135 F.3d. 1089, 1095-97 (6th Cir. 1998), reh’g denied, 1998 U.S. App. LEXIS 9546 (produce clerk with HIV posed direct threat); Mauro v. Burgess Medical Center, 137 F.3d. 398, 401-07 (6th Cir. 1998), cert. denied, 1998 U.S. LEXIS 4825 (surgical technician with HIV posed direct threat); Doe v. University of Maryland Medical System, 50 F.3d. 1261, 1265-66 (4th Cir. 1995) (HIV positive neurosurgical resident posed direct threat). Screening HIV positive crewmembers whose duties include rendering medical treatment or preparing food thus has excellent support in the case law of several of the U.S. Circuit Courts.
But what of crewmembers whose HIV status does not pose a direct threat of harm to others, such as maintenance workers in the engine room or cabin stewards on cruise ships? As many are aware, various international, U.S. and foreign laws mandate that all crewmembers be physically fit for duty. Article 6 of the ISM Code mandates “medically fit” seafarers, while the Convention Concerning the Certification of Able Seamen of 1946 requires all seamen to be competent to perform “any duty which may be required” and mandates examinations to ensure crew fitness. Further, the Medical Examination (Seafarers) Convention of 1946 requires each seafarer have a medical certificate verifying he is “not suffering from any disease likely to be aggravated by, or render him unfit for, service at sea or likely to endanger the health of other persons on board.” Significantly, the ILO Guidelines for Conducting Pre-Sea and Periodic Medical Fitness Examinations for Seafarers mandate that infectious diseases such as AIDS and sexually transmitted diseases be considered during the fit for duty screening process.
Under the ADA, pre-board medical examinations that screen potential crewmembers for HIV or AIDS is arguably mandated by U.S., international and foreign legal requirements and is likely also to be a “job related business necessity.” Pre-board screening also allows risk- assessment and management of the crewmembers’ medical condition, as his or her medical status may impact the type of medical care he or she needs, which may or may not be available depending on the ship’s facilities and itinerary. Finally, documentation that a crewmember has preexisting HIV/AIDS before boarding the ship may prove invaluable to support subsequent denial of lifelong maintenance and cure on the grounds the disease did not manifest while the seaman was in the service of the vessel.
Of course, pre-screening crewmembers for HIV/AIDS is not without risk. Some scholars believe pre-screening will establish notice of an unseaworthy condition, i.e., an HIV positive crewmember. Additionally, in some circumstances, the screening may be deemed violative of the ADA. There may also be an increased risk of shipboard discrimination if confidentiality is breached, as well as negative publicity.
