Are Seamen Entitled to Maintenance While in Jail?
By , with research assistance by APR 6 law clerk Daniel Brown
It is generally assumed that seamen are not entitled to be paid maintenance when they get thrown in jail. This article suggests that this is not, and should not always be, the rule.
Marco Ramirez is a professional deckhand. He owns a house in the fishing town of Homer, Alaska. In the summer of 2019, he hurt his knee while working on a gillnetter fishing for salmon in Bristol Bay, Alaska. Marco was still being treated for the knee injury as of this writing. He retained me, and a lawsuit was filed in the Western District of Washington, later removed to the District of Alaska. Following motions practice, the rate of maintenance was set at $59.41 per day, not enough to pay for Marco’s mortgage, utilities, and food. (This shortfall may be the subject of an appeal and perhaps a future article.)
In late 2020, following an effort to supplement his income, Marco was charged with Burglary. He was released pending trial, but another warrant for his arrest was issued when he allegedly violated the conditions of his release.
On January 18, 2021, Trooper Trenton Buys was patrolling the Sterling Highway near Homer when he came upon a tow truck pulling a Subaru out of a ditch. An adult male was behind the wheel of the Subaru. The following account is from the Trooper’s report:
The driver identified himself as Mark Gonzalez. He stated he did not have any identification with him. He then started shuffling through papers in the car, looking for something to prove ownership of the vehicle. The male handed me a bank business card. I told him the card made no sense to me and asked why he had handed it to me. The male then rummaged through the car again and handed me a credit card in someone else’s name.
I returned to my patrol vehicle, where Dispatch informed me they were unable to locate a Mark Gonzalez with the information given. By this time the Subaru had been pulled out of the ditch and the tow truck driver was unlatching the hook. As I approached the Subaru the driver started to slowly drive forward.
I waved to him, pointing to the shoul-over so that I could speak to him. With his driver’s window down, he slowly passed me and said: “What? I can’t hear you.” The driver then rapidly accelerated on the Sterling Highway. I ran to my vehicle and gave pursuit, activating my lights and siren. The Subaru was doing an estimated 90 mph and started fishtailing on the wet road. He regained control and kept going. At 102 mph, I was gaining on him.
The driver abruptly stopped the Subaru and fled on foot towards the woods. I got out of my vehicle and gave chase, yelling at him to stop or he’d be tased. The male ran out of breath and gave up. Once he was in handcuffs, he told me that his name was Marco Ramirez and that he had an outstanding warrant.
While placing Marco in the back of my patrol car, I noticed that his Subaru was starting to inch forward. Marco apparently had not set the parking brake when he’d run away from it. I ran after the car as it slowly gained speed, crossed the center line and rolled into the ditch. The tow truck came back and pulled Marco’s Subaru out of another ditch.
Marco was arrested and remanded to the Homer Jail for Failing to Stop at the Direction of a Police Officer, Reckless Driving, False Info, and Violating Conditions of Release.
Marco got out of jail 16 days later. The insurance lawyer cut off his maintenance for 16 days. I filed a motion for payment of those 16 days of maintenance, arguing that Marco still had to pay his mortgage and utility bills during his short stint in jail. Backing out food expense for the “free” food Marco got in jail, I requested $756.32 in back maintenance. That is not a lot of money for most federal court litigants, but it was to Marco. As Professor Norris once said: “The small amount of money involved may bulk largely in the economy of a sick and ailing seaman.” Force and Norris, The Law of Seamen (Trivial Expenditures) § 26:31 (2017 update to 5th ed.).
The assumption that seamen are not entitled to maintenance while in jail likely comes from the old cases. In earlier times, sailors were mostly itinerant, staying in flophouses or brothels between moving from one ship to the next, without regular housing expense. Sailors were thought to be profligate and improvident, thoughtless about what would come on the morrow. See, e.g., Harden v. Gorden, 11 Fed. Cas. No. 6047 (1823), reprinted at 2000 A.M.C. 893 (Story, J.). The advantage taken of these men by saloon keeps, crimps, and shipowners is what prompted adoption of the wardship doctrine – that seamen are wards of the admiralty courts. See generally Norris, The Seaman as Ward of the Admiralty, 52 Mich. L. Rev. 479 (1954); see also The Law of Seamen, supra § 26:4. In those days, few, except perhaps Masters, had a mortgage to worry about. Some modern-day seamen, such as Marco Ramirez, do in fact have to worry about a mortgage and utility bills and are not relieved of those expenses while in jail. It is time to take another look at this assumption.
“Maintenance means … payment in cash to the ill or injured seaman for the cost of his board and lodging while on shore actually expended by him ….” The Law of Seamen, supra § 26:26 (emphasis added). Marco had to keep paying his mortgage and utilities even though he was in jail for 16 days.
Until the point of maximum cure, misconduct is a vessel owner’s only defense against payment of maintenance and cure to an ill or injured seaman. Being in jail, by itself, is not misconduct. For the types of misconduct that disqualify a seaman from receiving maintenance and cure see generally The Law of Seamen, supra § 26:60. The author asserts that there is no firm rule that maintenance is not payable to a seaman simply because the seaman is in jail.
In Ballard v. Alcoa S.S. Co., 122 F. Supp. 10 (S.D. Ala. 1954), a seaman in jail sought an award of maintenance for food expense (only). Even though he was provided free food in jail, he argued that he was still entitled to maintenance because the food was lousy. The judge denied the motion, not because the seaman was in jail, but because he could show no expenditures for food regardless of its quality. Id. There was no mention of a mortgage or rent payments and the seaman was presumably itinerant.
Marco’s motion was denied. The federal magistrate assigned to the motion stated: “The Court is not persuaded.” Ramirez v. Winter Blues Inc., No. 3:29-cv-00002-SLG-DMS, 2021 U.S. Dist LEXIS 113963, 2021 WL 2406885 (D. Alaska May 7, 2021).
“Prior cases make clear that a seaman is not entitled to maintenance while in jail.” Id. What cases? The one relied upon for this assertion is the same 1954 case relied on in support of Marco’s motion, Ballard v. Alcoa S.S. Co., supra. That case begs the question.
The court analogized being in jail to seamen receiving free room and board at the former U.S. Public Health Service Hospitals (initially called the Marine Hospitals). But Ronald Reagan pushed through legislation to close the Public Health Hospitals 40 years ago. See generally The Law of Seamen, supra § 26:24. And, like the jail cases, this practitioner could find no case mentioning a patient’s responsibility for rent or a mortgage. Neither could the magistrate. Ramirez, supra.
Finally, the magistrate stated in bold type: “Here, Ramirez would be paying his monthly mortgage payments even if he was being provided lodging while at sea.” Id. Marco would not need maintenance if he was not injured and able to be at sea.
There are no cases that state as a rule that seamen in jail are not entitled to maintenance. If Marco does not receive adequate compensation for his knee injury, this issue will be appealed to the Ninth Circuit.