and 08-4086 DELAWARE RIVER & BAY AUTHORITY v. Jan D. Kopacz

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 08-4029 and 08-4086
_____________
DELAWARE RIVER & BAY AUTHORITY,
Appellant in No. 08-4029
v.
JAN D. KOPACZ
Appellant in No. 08-4086
Appeals from the United States District Court
for the District of Delaware
(D.C. Civil No. 07-cv-00008)
District Judge: Honorable Sue L. Robinson

-- 1 of 62 --

2
Argued May 21, 2009
Before: RENDELL, STAPLETON
and ALARCÓN*, Circuit Judges.
(Filed: September 25, 2009)
Mary E. Reeves, Esq. [ARGUED]
Donna Adelsberger & Associates
6 Royal Avenue
P.O. Box 530
Glenside, PA 19038
Counsel for Appellant/Cross Appellee
E. Alfred Smith, Esq. [ARGUED]
E. Alfred Smith & Associates
219 Sugartown Road, Suite D-302
Wayne, PA 19087
Counsel for Appellee/Cross Appellant
*Honorable Arthur L. Alarcón, Senior Judge, United
States Court of Appeals for the Ninth Circuit, sitting by
designation.

-- 2 of 62 --

3
OPINION OF THE COURT
RENDELL, Circuit Judge.
In this appeal from the District Court’s award of
declaratory judgment in favor of defendant Jan Kopacz, and
against plaintiff Delaware River & Bay Authority (“DRBA”),
we are called upon to decide two issues of admiralty law:
(1) whether commuter seamen, who eat and sleep on land, are
entitled to “maintenance and cure”—payment from a shipowner
to a seaman to cover medical, food, and lodging expenses during
the seaman’s recovery from illness or injury; and (2) if so,
whether a shipowner is relieved of its maintenance and cure
obligation when the injured seaman receives Social Security
disability benefits and long-term disability payments provided
by the shipowner. Relying on our opinions in Barnes v. Andover
Company, L.P., 900 F.2d 630 (3d Cir. 1990), and Shaw v. Ohio
River Company, 526 F.2d 193 (3d Cir. 1975), the District Court
concluded that commuter seamen are entitled to maintenance
and cure, independent of other benefits paid to the seaman.
Accordingly, the District Court awarded Kopacz maintenance of
$50,790.00, plus prejudgment interest of $2,204.29, but denied
Kopacz’s claim for consequential damages, including lost
wages, pain and suffering, and attorney’s fees and costs. Both

-- 3 of 62 --

4
parties timely appealed.
DRBA’s central contention on appeal is that payment of
maintenance would produce a “double recovery,” because
Kopacz’s wages already enabled him to procure food and
housing on land, and because Social Security disability and
long-term disability payments made to Kopacz adequately
covered his living expenses. DRBA argues, further, that the
award of prejudgment interest was punitive and thus
impermissible. The sole argument advanced in Kopacz’s cross-
appeal is that consequential damages were improperly denied.
Finding no error in the District Court’s thoughtful resolution of
these issues, we will affirm its order.
I. Background
Maintenance is the payment by a shipowner to a sailor for
the sailor’s food and lodging costs incurred while he is ashore
as a result of illness or accident. Barnes, 900 F.2d at 631. A
common law remedy, maintenance, derived from medieval
maritime codes, was incorporated into American jurisprudence
nearly two centuries ago. Harden v. Gordon, 11 F.Cas. 480,
482-83 (C.C.D. Me. 1823) (No. 6,047); see The Osceola,
189 U.S. 158, 175 (1903). Its original purpose was clear and
compelling—to ensure injured seamen funds adequate to cover
basic living expenses during their recovery. The imposition of
such a duty, it was felt, would benefit both shipowners and
seamen, by encouraging shipowners to implement appropriate

-- 4 of 62 --

5
safeguards to protect sailors, and by encouraging seamen to
undertake hazardous voyages:
Seamen are by the peculiarity of their lives liable
to sudden sickness from change of climate,
exposure to perils, and exhausting labour. They
are generally poor and friendless, and acquire
habits of gross indulgence, carelessness, and
improvidence. If some provision be not made for
them in sickness at the expense of the ship, they
must often in foreign ports suffer the accumulated
evils of disease, and poverty, and sometimes
perish from the want of suitable nourishment. . . .
If these expenses are a charge upon the ship, the
interest of the owner will be immediately
connected with that of the seamen. The master
will watch over their health with vigilance and
fidelity. . . . Even the merchant himself derives an
ultimate benefit from what may seem at first an
onerous charge. It encourages seamen to engage
in perilous voyages with more promptitude, and at
lower wages. It diminishes the temptation to
plunderage upon the approach of sickness; and
urges the seamen to encounter hazards in the
ship’s service, from which they might otherwise
be disposed to withdraw.
Barnes, 900 F.2d at 633 (quoting Harden, 11 F.Cas. at 483).

-- 5 of 62 --

Hartford calculates an employee’s monthly LTD benefit by:1
(continued...)
6
Since Harden was decided almost 200 years ago, the lot
of the “poor and friendless” seaman has improved considerably.
As we noted in Barnes, union contracts may guarantee sailors a
host of benefits, including overtime and premium pay, vacation
allowances, disability pensions, and various amenities, including
televisions and washers and dryers. 900 F.2d at 637. The
emergence of these contractually-guaranteed benefits, however,
has not diminished our historic solicitude toward seamen, who
continue to be viewed by the law as “wards of the admiralty.”
Id. at 636-37. Accordingly, maintenance, a duty that is
“annexed to the employment contract,” that “attaches once the
seaman enters the service of the ship,” and that “no private
agreement is competent to abrogate,” has retained its vitality in
the modern era. Id. at 636.
DRBA guarantees many of the benefits discussed above
to its seamen. The interaction of these benefits and the
maintenance obligation lies at the heart of this appeal.
A permanent full-time employee of DRBA who suffers
an injury on the job is entitled to full wages for the first 90 days
of disability. Thereafter, the employee is entitled to benefits
equivalent to 60% of his wages, which are paid through a long-
term disability (“LTD”) policy funded wholly by DRBA, and
administered by Hartford Insurance Company (“Hartford”).1

-- 6 of 62 --

(...continued)1
(1) multiplying the monthly income loss by the benefit
percentage; (2) comparing the result with the maximum benefit;
and (3) deducting other income benefits, including Social
Security disability payments, from the lesser amount.
7
The personnel manual provided to Kopacz sets forth the purpose
of LTD benefits—to “provide a continuing income should the
employee’s ability to earn a living be interrupted or terminated
by a prolonged disability.” A. 6-7.
The duty to provide LTD benefits stems from a provision
in the collective bargaining agreement between DRBA and its
marine employees, providing that, “Employer agrees to continue
to provide all permanent full-time employees long-term
disability plans that are offered to . . . employees generally.”
A. 7. The agreement makes no mention of maintenance
payments, and DRBA does not maintain an insurance policy
specifically to cover its maintenance obligation to seamen.
In the event of a delay in the payment of LTD benefits,
an injured sailor also receives the value of his sick and annual
leave. According to DRBA’s risk manager, Bonnie Miller, the
payment of annual leave is distinct from maintenance and is
merely a stop-gap to enable an injured seaman to cover his
living expenses during the pendency of his LTD application.
Kopacz suffered a debilitating back injury in December

-- 7 of 62 --

DRBA also mistakenly transmitted three checks, totaling2
$1,770.00, to Kopacz. Miller explained that this was done
because the prior plan administrator required DRBA to pay
seamen “maintenance wages” in the amount of $450 per month,
or $15 daily—payments which were then deducted from the
LTD benefit paid to seamen. Accustomed to making these
payments, DRBA inadvertently sent Kopacz checks with notes
indicating that the payments constituted “maintenance wages”
for the period between April 2005 and July 2005, and that the
payments offset Kopacz’s LTD benefit.
8
2004 and was subsequently deemed unfit to return to duty by
DRBA. As a full-time permanent employee, Kopacz received
his full wages for 90 days following the date of his disability,
equivalent to approximately $9,900. Kopacz also received the
value of his sick and annual leave, equivalent to approximately
$4,600. Thereafter, Hartford paid Kopacz monthly LTD
benefits of $2,192 for 17 months, beginning in April 2005 and
ending in September 2006. DRBA did not make separate2
maintenance payments to Kopacz, nor did Kopacz request them.
Because Hartford also required injured seamen to apply
for Social Security disability (“SSD”) benefits, which, if
approved, would be deducted from monthly LTD benefits,
Kopacz submitted an application for SSD benefits in October
2006. After approval of Kopacz’s application, the Social
Security Administration transmitted a check to him in the

-- 8 of 62 --

The amount of reimbursement requested–$16,607.92–was3
slightly less than the lump sum amount received from the Social
Security Administration due to differences in the eligibility dates
under the Hartford policy and the Social Security disability
program.
9
amount of $17,142.00, representing his total benefits retroactive
to July 2005, and thereafter provided monthly payments of
$1,167.00.
Upon discovering the payment of $17,142.00, Hartford
demanded reimbursement of slightly less than this sum and3
advised Kopacz that his LTD benefit would thereafter be
reduced by the amount of his monthly SSD payment. After
Kopacz refused to reimburse Hartford, it suspended payment of
LTD benefits. Shortly thereafter, Kopacz advised DRBA that
it, not he, was required to reimburse Hartford for this sum; when
DRBA declined to do so, this suit followed.
DRBA sued Kopacz in the United States District Court
for the District of Delaware, seeking a declaratory judgment that
DRBA did not owe Kopacz maintenance and cure. After a one-
day bench trial, the District Court concluded that Kopacz was
entitled to maintenance in the amount of $50,790.00, plus
prejudgment interest of $2,204.29. However, the District Court
denied Kopacz’s claim for consequential damages, including

-- 9 of 62 --

The parties stipulated that Kopacz’s monthly living expenses4
were $2,190.00 in the time period beginning in January 2005
and ending in April 2007, that Kopacz attained his point of
maximum medical improvement on the latter date, and that the
monthly SSD benefits of $1,167.00 represented Kopacz’s sole
source of income since October 2006, with the exception of
interest earned on a money market account. All of Kopacz’s
documented medical expenses have been paid, and Kopacz has
made no claim for cure.
The District Court had subject matter jurisdiction over this5
admiralty action under 28 U.S.C. § 1333. We have appellate
jurisdiction over the final judgment of the District Court under
28 U.S.C. § 1291. We review the District Court’s findings of
fact under a clearly erroneous standard. See Sheet Metal
Workers 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).
10
lost wages, pain and suffering, and attorney’s fees and costs.4
Both parties timely appealed.5
DRBA contends that commuter seamen, who eat and
sleep ashore, are ineligible for maintenance. It also argues, in
the alternative, that the District Court should have deducted
other payments made to Kopacz, including LTD and SSD, from
the amount of maintenance owed to Kopacz – a result that,

-- 10 of 62 --

11
DRBA maintains, is necessary to avoid double recovery.
Further, DRBA contends that the award of prejudgment was
punitive, rather than compensatory, and thus impermissible.
Kopacz’s cross-appeal urges that the District Court improperly
denied his claim for consequential damages.
II. Discussion
A. Commuter Seamen
DRBA asks the Court to adopt a per se rule denying
maintenance to commuter seamen. DRBA observes that the
rationale for maintenance—to provide seamen compensation
equivalent to food and lodging received at sea—is inapplicable
to commuter seamen, who eat and sleep ashore. DRBA argues,
further, that the wages of commuter seamen are already
computed with the expectation that they will pay for their own
food and housing expenses on land and, therefore, an award of
maintenance would produce an unjustified windfall. DRBA
maintains that, based on these concerns, we left “open the
question” of whether commuter seamen are entitled to
maintenance in Barnes, 900 F.2d at 643.
Our inquiry begins with Barnes. There, we considered
whether a blue water seaman, who maintained a home ashore,
was entitled to include in his calculation of maintenance
expenses incurred in connection with his permanent lodging, or
whether he was solely permitted to recover the incremental costs

-- 11 of 62 --

12
attributable to his presence on land, including food, laundry, and
gas. In approving Barnes’s recovery of costs associated with his
permanent lodging, we cited precedents awarding maintenance
to commuter seamen:
Many of the reasons given by the courts for
awarding maintenance to land-based seamen who,
by definition, ordinarily incur their own expenses
for food and lodging are also applicable to
inclusion in maintenance of the prorated costs of
permanent lodging by a blue water seaman: the
status of seamen as wards of the admiralty, Weiss,
235 F.2d at 313; DuPlantis, 298 F.Supp. at 14-15
& n. 3; consistency with maritime tradition,
Weiss, 235 F.2d at 313; DuPlantis, 298 F.Supp. at
14-15[;] and the need to provide support to those
who are ineligible for workman’s compensation
or other means of support. Weiss, 235 F.2d at 313.
Id. at 642.
Despite our reliance on these precedents in Barnes,
DRBA insists, “This Circuit has left open the question of
whether a commuter seaman, such as Kopacz, is even entitled to
maintenance in the first place.” Appellant’s Br. at 14. Although
Barnes acknowledged that there was “some logic” in denying
maintenance to shore-based seamen, the court stressed that the
“life of the law” is “experience,” not “logic.” Id. at 643. Barnes

-- 12 of 62 --

13
then reiterated Congress and the Supreme Court’s “long-
established solicitude” to seamen, the “liberal attitude”
regarding the scope of maintenance, and the interpretative canon
requiring that ambiguities in regard to maintenance be “resolved
in favor of the seaman”—all considerations that, Barnes
concluded, supported an expansive understanding of the right to
maintenance. Id. at 637, 643 (citing Vaughan v. Atkinson,
369 U.S. 527, 532-33 (1962)). Barnes also quoted at length
from an opinion rejecting a position identical to that urged by
DRBA:
To deny [maintenance to a seaman]
because he does not receive lodging and meals
aboard ship raises problems that would distort the
simple lines of the maintenance remedy. . . .
Indeed, the rationale that maintenance is
allowable only when meals would have been
served aboard challenges the now well settled
doctrine that the disabled seaman is entitled to be
paid maintenance beyond the end of his voyage,
for were maintenance to be allowed only for those
days during which the ship would have served
him meals, it would end when the voyage was
over.
Id. at 642 (quoting Hudspeth v. Atlantic & Gulf Stevedores, Inc.,
266 F.Supp. 937, 943 (E.D. La. 1967)); see Smith v. Del. Bay
Launch Serv., Inc., 972 F.Supp. 836, 849 (D.C. Del. 1997); see

-- 13 of 62 --

14
also Crooks v. United States, 459 F.2d 631, 634-35 (9th Cir.
1972) (“[T]he maintenance remedy should be kept simple,
uncluttered by fine distinctions which breed litigation, with its
attendant delays and expenses.”) (internal citation omitted).
Hence, Barnes strongly suggested that commuter seamen are
also entitled to maintenance.
Today, we make explicit what was implicit in Barnes:
commuter seamen enjoy the same right to maintenance as their
blue water counterparts. Although DRBA’s concerns relating
to other payments have merit, we do not write on a blank slate.
Id. at 637 (noting the Court’s “clear and frequent
pronouncements” that seamen remain wards of the admiralty).
Rather, our analysis is informed by nearly two centuries of
jurisprudence “consistently expand[ing] the scope of the right
[to maintenance].” Id. at 633. In Vaughan, decided over one
hundred years after the introduction of maintenance into
admiralty law, the Supreme Court stressed the continued status
of seamen as “wards” of admiralty and the need for “liberal”
interpretation of the maintenance obligation. 369 U.S. at 532.
Notwithstanding our dissenting colleague’s vigorous
argument that the maintenance and cure obligation does not
arise when the seaman is a commuter, we find no such limiting
principle—or inclination to curtail this historic remedy—in the

-- 14 of 62 --

Kopacz’s claim rests upon the age-old common law doctrine6
of maintenance and cure, not the Shipowners’ Liability
Convention. Nothing in that Convention purports to alter the
right Kopacz here asserts.
15
applicable jurisprudence. As much as we might have expected6
the Supreme Court in 1962 to modify the traditional
maintenance obligation to reflect changes in the modern
seaman’s lifestyle, it did no such thing. To the contrary, the
Court, stressing the expansive nature of this right, declined to
fashion exceptions to the shipowner’s longstanding duty to
provide maintenance and cure:
Admiralty courts have been liberal in interpreting
this duty ‘for the benefit and protection of seamen
who are its wards.’ We noted in Aguilar v.
Standard Oil Co., that the shipowner’s liability
for maintenance and cure was among ‘the most
pervasive’ of all and that it was 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 531-32 (internal citations omitted). And, in fact, DRBA
cites no authority supporting withholding maintenance from
commuter seamen. See id. at 642 (quoting Weiss v. Central R.R.
Co. of N.J., 235 F.2d 309, 313 (2d Cir. 1956) (“We know of no
authority . . . for holding that a seaman is not entitled to the

-- 15 of 62 --

16
traditional privileges of his status merely because his voyages
are short, because he sleeps ashore, or for other reasons his lot
is more pleasant than that of most of his brethren.”)); Bailey v.
City of N.Y., 55 F.Supp. 699, 701 (S.D.N.Y. 1944), aff.,
153 F.2d 427 (2d Cir. 1946) (awarding maintenance to land-
based seaman after finding no authority for narrow construction
of the right); see also Crooks, 459 F.2d at 633 (“Thus we find
the obligation of maintenance enforced even where maritime
compensation did not include board and lodging-where the
seaman was expected to pay for his meals out of his wages. No
matter what the terms of his maritime employment were, during
the period of his disability he was entitled to be provided with
maintenance as well as cure.”); The City of Avalon, 156 F.2d
500, 501 (9th Cir. 1946) (holding that seaman could recover cost
of food as element of maintenance, even where shipowner had
not paid for his meals).
In short, “[t]he Supreme Court has shown no inclination
to depart from its long-established solicitude for seamen,”
despite the protections afforded modern seamen. Barnes,
900 F.2d at 637. Until it does so, we decline to depart from the
“uniformly enforced” rule entitling deep water and commuter
seamen to maintenance. Weiss, 235 F.2d at 313.
B. Long-Term Disability Benefits
Having established Kopacz’s general eligibility for
maintenance, we turn to DRBA’s alternative contention—that

-- 16 of 62 --

17
LTD payments satisfied its maintenance obligation. Shaw v.
Ohio River Company governs when other payments received by
an injured seamen satisfy a shipowner’s maintenance obligation.
526 F.2d at 200. There, we considered whether benefits paid to
a seaman under a disability policy funded by the shipowner, and
administered by Prudential Insurance Company (“Prudential”),
relieved the shipowner of its maintenance duty. Id. We attached
primary importance to the “character” of the benefit conferred.
Id. We explained that where a benefit is part of the seaman’s
wage package, it will be deemed separate and independent of the
shipowner’s maintenance obligation; accordingly, payment of
the benefit will not relieve the shipowner of its maintenance
duty. Considerations supporting characterization of a benefit as
“wages” rather than maintenance include that: (1) the benefit is
mandated under a wage agreement between the employer and
the seaman; (2) the absence of any contractual provision
indicating that the benefit is in lieu of, or in satisfaction of, the
employer’s maintenance obligation; (3) the purpose of the
benefit is to replace lost wages; and (4) the benefit is
recoverable, even where the seaman does not satisfy the
maintenance requirements. Id. In Shaw, all four factors
supported classification of disability benefits as a substitute for
wages: (1) the benefits were guaranteed in a collective
bargaining agreement governing employee compensation;
(2) the shipowner did not specify that disability payments were
in lieu of maintenance; (3) employees were entitled to the
benefits, even if they did not satisfy the conditions required to
recover maintenance; and (4) the benefits, designed to replace

-- 17 of 62 --

18
lost wages, were not narrowly tailored to cover food and lodging
expenses. Id. Accordingly, we concluded that the payment of
disability benefits did not relieve the shipowner of its
maintenance obligation.
On the other hand, we concluded in Shaw that health
benefits provided to the seaman did satisfy the shipowner’s duty
to provide “cure”—the payment of a seaman’s medical expenses
during his convalescence. Under the relevant policy, which was
fully funded by the shipowner and administered by Blue Cross-
Blue Shield, all of the injured seaman’s medical expenses were
covered. Because the benefits were narrowly tailored to satisfy
the shipowner’s “cure” duties, we concluded that additional
payments to the seaman were not required.
Here, the District Court, applying the considerations
discussed in Shaw, found that the LTD benefits were part and
parcel of Kopacz’s wage package. It specifically noted that:
(1) DRBA extended LTD benefits to all permanent full-time
employees, including personnel ineligible for maintenance at
common law; (2) the employee manual characterized LTD
benefits as “continuing income,” not as payment for food and
lodging; (3) the collective bargaining agreement did not
expressly indicate that LTD benefits were in lieu of
maintenance; and (4) disability benefits were awarded, even

-- 18 of 62 --

It is also worth noting that neither a seaman’s actual nor his7
projected expenditures on food and lodging are factors in the
computation of LTD payments and, therefore, LTD payments
are not narrowly tailored to satisfy the shipowner’s maintenance
obligation.
19
when the maintenance requirements were not met. Nothing7
“connected” the insurance payments to food and lodging, or the
maintenance offered as such. Accordingly, the District Court
concluded that DRBA’s maintenance obligation was not
satisfied by the payment of LTD benefits.
DRBA attempts to distinguish the Prudential payments in
Shaw from the LTD benefits paid here. DRBA insists that the
collective bargaining agreement here is silent on LTD benefits.
To the contrary, the document expressly provides, “Employer
agrees to continue to provide all permanent full-time employees
long-term disability plans that are offered to . . . employees
generally.” A. 7, 553, 563-64. The inclusion of this guarantee
in the collective bargaining agreement thus supports
classification of LTD benefits as a substitute for wages, not
maintenance.
In Shaw, we scrutinized the record for clear written
evidence that the shipowner intended disability benefits to
satisfy its maintenance duty. We stated, “[T]he collective
bargaining agreement in this case contained no provision
specifying that payments from the insurance company under the

-- 19 of 62 --

20
benefits plan would be in lieu of maintenance. Undoubtedly a
vessel owner could insure against his maintenance obligation by
a benefits program tailored to that end but there is no indication
in the collective bargaining agreement before us that this was
done.” 526 F.2d at 200 (emphasis added); see also id. at 199 (“It
is clear that in the absence of an explicit contractual provision
specifying that accumulated leave time pay or other wages is to
be deemed a substitute for maintenance, there is no basis for
crediting such earned wages against the vessel owner’s
maintenance obligation.”) (emphasis added). Conceding that no
such written evidence exists here, DRBA asserts that, instead, its
evidentiary burden is satisfied by the existence of a “tacit and
longstanding understanding” between the DRBA and its seaman
that LTD benefits were in lieu of maintenance. Appellant’s Br.
at 20. DRBA relies on testimony offered by its risk manager,
Bonnie Miller, that no employee had previously sued DRBA to
recover both maintenance and disability benefits. This absence
of suit, however, is readily explained—the prior plan
administrator, Pennsylvania Manufacturer’s Association, paid
injured seamen “maintenance wages” of $15 daily. The absence
of suit, therefore, is not indicative of a “tacit” understanding that
LTD benefits would be provided in lieu of maintenance. In any
event, speculation about why other DRBA employees refrained
from suit is just that–speculation–and such circumstantial
evidence is especially unpersuasive here, where all of the
considerations identified as significant in Shaw support
classification of the LTD payments as a wage substitute, not
maintenance, and where LTD payments were not narrowly

-- 20 of 62 --

21
tailored to the essential purpose of maintenance—to cover food
and lodging expenses during the seaman’s recovery.
Unable to demonstrate that LTD payments were intended
as maintenance, DRBA focuses on the underlying rationale for
this right. DRBA contends that the historic purpose of
maintenance—to provide an injured seaman funds adequate to
cover basic living expenses—was met by the payment of LTD
benefits, and that an additional award would produce an
unjustified windfall for Kopacz. We considered–and rejected–a
similar argument in Barnes, where we approved an award of
maintenance to a unionized seaman, who received benefits
similar to those afforded Kopacz:
Andover is persuasive in arguing that today those
seamen who are unionized are neither friendless
nor improvident. The record in this case shows
that the Seafarers International Union, to which
Barnes belongs, has obtained for its members
overtime and premium pay, vacation allowances,
disability pensions, and amenities. . . .
Furthermore, the adjectives friendless and
helpless were generally used to describe sailors in
foreign ports. Now, under union contracts ill or
injured seamen are quickly repatriated. The
changed circumstances of the unionized seaman
may undercut the rationale supporting the
traditional right to maintenance and cure, at least

-- 21 of 62 --

DRBA also contends that requiring shipowners to pay8
maintenance, in addition to disability benefits, would discourage
employers from offering such benefits. We disagree, and
conclude, as the District Court did, that a shipowner may avoid
“double” liability by specifying that disability benefits are
intended to cover, in whole or in part, its maintenance
obligation. See Shaw, 526 F.2d at 200.
22
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 the emergence
of powerful seamen’s unions, a development
concerning which the Court has full knowledge,
justifies our ignoring the Court’s clear and
frequent pronouncements that seamen remain
wards of the admiralty.
Barnes, 900 F.2d at 636-37 (internal citations omitted)
(emphasis added); see also Vaughan, 369 U.S. at 533 (rejecting
double recovery argument and finding that income earned by an
injured seaman at non-maritime position during his recovery did
not offset the amount of maintenance due).8
Hence, we conclude that the LTD payments do not offset
the amount of maintenance owed to Kopacz, a duty that is
independent of DRBA’s contractual obligations. See Barnes,
900 F.2d at 636; see also Vaughan, 369 U.S. at 532

-- 22 of 62 --

23
(“Maintenance and cure differs from rights normally classified
as contractual.”).
C. Social Security Disability Benefits
Alternatively, DRBA maintains that Kopacz’s receipt of
SSD benefits satisfied its maintenance obligation, at least in
part. For its position, DRBA relies on our statement in Shaw
that a “vessel owner has no obligation to provide maintenance
and cure if it is furnished by others at no expense to the
seaman.” 526 F.2d at 201.
In Shaw, discussed earlier, we held that Blue Cross-Blue
Shield benefits satisfied the shipowner’s cure obligation. We
reasoned that these benefits, which covered the costs of the
seaman’s medical care and hospitalization, were the “exact[]
equivalent” of “cure.” Shaw, 526 F.2d at 201. Accordingly, we
concluded that the parties intended the Blue Cross-Blue Shield
payments be in lieu of, rather than in addition to, the “cure”
owed to the injured sailor. However, we reached the opposite
conclusion with respect to the Prudential disability benefits,
which the record indicated were intended as a substitute for lost
wages–not as payment for food and lodging–and which were
owed to the seaman, independent of his eligibility for
maintenance and cure. On that basis, we held that the Prudential
payments did not offset the maintenance owed to the seaman.
Distinguishing the Blue Cross-Blue Shield benefits from the
Prudential payments, we explained,

-- 23 of 62 --

24
[I]t is also true that the vessel owner has no
obligation to provide maintenance and cure if it is
furnished by others at no expense to the
seaman. . . . The essential difference between the
Blue Cross-Blue Shield and the Prudential
payments [which do not satisfy the maintenance
obligation] is that the former provides the exact
equivalent of maintenance and cure whereas the
latter, at least under this collective bargaining
agreement, constitutes a substitute for lost wages
which are owed to a seaman even if he is
ineligible for maintenance and cure.
Id. at 201 (emphasis added). The dispositive issue here,
therefore, is whether SSD benefits provide the “exact
equivalent” of maintenance, or whether the two differ in their
scope, purpose, and conditions of eligibility. Id.
SSD benefits and maintenance are distinguishable in
several important respects. First, distinct policy aims underlie
maintenance and SSD payments. Whereas maintenance is
“intended to provide for the cost of food and lodging
comparable in quality to that the seaman is entitled to at sea,”
Barnes, 900 F.2d at 634-35, SSD benefits “aim[] to replace the
income of beneficiaries when that income is reduced on account
of retirement and disability.” Temple Univ. v. United States,
769 F.2d 126, 130 (3d Cir. 1985); see Barnes, 900 F.2d at 634

-- 24 of 62 --

25
(noting that maintenance does not entitle a seaman to a pension
or a lump-sum payment to compensate for disability or lost
earning capacity). Hence, SSD benefits are more closely
analogous to LTD payments, which aim to replace lost wages,
than to maintenance.
Second, the conditions of eligibility for maintenance and
SSD payments differ substantially. Maintenance is available
solely when a seaman: (1) is injured during the course of his
employment or at a place where he is “subject to the call of
duty,” Barnes, 900 F.2d at 633 (citing Aguilar v. Standard Oil
Co., 318 U.S. 724, 732 (1943)); (2) is incapable of performing
“seaman’s work,” Vaughan, 369 U.S. at 531; and (3) has
“actually incurred” food and lodging expenses during his
recovery. Barnes, 90 F.2d at 642; see Vaughan, 369 U.S. at 531
(noting that maintenance is limited to food and lodging expenses
incurred); Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525,
535 (9th Cir. 1962) (“Maintenance and cure is based upon
need,” and the seaman is under a duty to minimize
expenditures). Maintenance, moreover, is available immediately
upon the seaman’s incapacitation, but ceases once the seaman
attains “maximum cure,” defined as the point at which he is
either cured or his condition is diagnosed as permanent and
incurable. Barnes, 900 F.2d at 633-34; see Vella v. Ford Motor
Co., 421 U.S. 1, 5 (1975); Crooks, 459 F.2d at 635 (“Payments
must be promptly made, at a time contemporaneous to the illness
or injury.”) (internal citation omitted).

-- 25 of 62 --

The federal statute defines “disability” as: “inability to9
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than
12 months.” 42 U.S.C. § 423(d)(1)(A).
26
The conditions of eligibility for SSD benefits, by
contrast, are both more–and less–stringent than those required
to obtain maintenance. On the one hand, the SSD requirements
are more onerous: a claimant must demonstrate that he has
suffered a disability for a minimum period of five months,
Gaines v. Amalgamated Ins. Fund, 753 F.2d 288, 290 (3d Cir.
1985); that his disability is permanent, having lasted, or been
expected to last, for a continuous period of 12 months, id.; 20
C.F.R. § 416.909; and that his impairment precludes
performance not only of his former job but also of any work
“existing in significant numbers in the national economy,”
including “basic work activities.” McCrea v. Comm’r of Social
Sec., 370 F.3d 357, 360 (3d Cir. 2004); see 42 U.S.C.
§ 423(d)(2)(A); 20 C.F.R. §§ 404.1520, 416.920.
On the other hand, the conditions of eligibility for SSD
benefits are, in certain other respects, less burdensome than
those required to receive maintenance. Claimants with non-
occupational injuries may recover SSD benefits, 42 U.S.C.
§ 423(d)(1)(A), and proof of actual expenditure of funds on9
food, lodging, or other expenses is not necessary to obtain

-- 26 of 62 --

27
benefits. Further, SSD payments need not be expended on food
and lodging, and financial need is not a prerequisite to obtain
assistance. Mazza v. Sec. of Health and Human Servs., 903 F.2d
953, 956 (3d Cir. 1990). Further, a Social Security claimant is
entitled to benefits, even if his condition is diagnosed as
permanent or incurable. 42 U.S.C. § 423(a)(1).
These important differences support classification of
maintenance and SSD payments as different, rather than
“exact[ly] equivalent,” benefits. Shaw, 526 F.2d at 201; see
Handelsman, 307 F.2d at 537 (holding that payments received
by sailor under state disability program do not offset amount
owed under maintenance duty); see also Barnes, 900 F.2d at 637
(upholding seaman’s right to maintenance, despite possibility of
double recovery from his receipt of disability pensions, overtime
and premium pay, and vacation allowances).
Nonetheless, DRBA attempts to analogize SSD payments
to Medicare benefits, which at least one court of appeals has
concluded may satisfy a shipowner’s “cure” obligation. Moran
Towing & Transportation Co. v. Lombas, 58 F.3d 24, 26-27
(2d Cir. 1995). In Moran, the Second Circuit Court of Appeals
held that a seaman’s receipt of Medicare-funded treatment
relieved the shipowner of its duty to provide “cure.” The court
relied on our pronouncement in Shaw that “a vessel owner has
no obligation to provide maintenance and cure if it is furnished
by others at no expense to the seaman.” Id. at 27 (quoting Shaw,
526 F.2d at 201). Significantly, Moran did not analyze a

-- 27 of 62 --

28
consideration that we identified as critical in determining
whether “offset” was appropriate in Shaw—whether the
payments received are the “exact equivalent” of cure. Shaw,
526 F.2d at 201. Because Moran omitted an aspect of the offset
analysis that we deemed “essential” in Shaw, its holding lacks
persuasive force.
Even if Moran were binding on this Court, Moran’s core
holding—that Medicare benefits may satisfy a shipowner’s
“cure” obligation—comports with the reasoning in Shaw.
There, as discussed, we held that Blue Cross-Blue Shield
benefits, which covered all of the seaman’s medical expenses
during his recovery, provided the “exact equivalent” of “cure.”
Likewise, the Medicare benefits in Moran, which covered the
seaman’s hospital bills during his convalescence, provided the
equivalent of “cure.” SSD benefits, by contrast, differ in scope
and purpose from maintenance. Hence, Moran’s conclusions
with respect to Medicare benefits do not govern our analysis of
SSD payments made to Kopacz.
Hence, we conclude that Kopacz’s receipt of SSD
benefits did not relieve DRBA of its maintenance obligation.
D. Prejudgment Interest
Next, DRBA contends that the District Court erred in
granting Kopacz prejudgment interest on the amount of

-- 28 of 62 --

Kopacz sought–and was awarded–prejudgment interest10
from October 2006, when Hartford ceased payment of LTD
benefits, to the date of judgment.
29
maintenance owed to him. “The rule in admiralty is that10
prejudgment interest should be awarded unless there are
exceptional circumstances that would make such an award
inequitable.” Matter of Bankers Trust Co., 658 F.2d 103, 108
(3d Cir. 1981); see Noritake Co. v. M/V Hellenic Champion,
627 F.2d 724, 728 (5th Cir. Unit A 1980) (“Discretion to deny
prejudgment interest is created only when there are ‘peculiar
circumstances’ that would make it inequitable for the losing
party to be forced to pay prejudgment interest.”) (internal
citation omitted). In Matter of Bankers Trust Co., we explained,
“Generally, exceptional circumstances exist only when the
district court concludes that the party requesting interest has
(1) unreasonably delayed in prosecuting its claim, (2) made a
bad faith estimate of its damages that precluded settlement, or
(3) not sustained any actual damages.” 658 F.2d at 108. An
award of prejudgment interest, however, must be compensatory
rather than punitive, id., and is “left to the sound discretion of
the district court,” which will be disturbed only for abuse of
discretion. M & O Marine, Inc. v. Marquette Co., 730 F.2d 133,
136 (3d Cir. 1984); see Socony Mobile Oil Co. v. Tex Coastal &
Intern., 559 F.2d 1008, 1014 (5th Cir. 1977); see also Skretvedt
v. E.I. DuPont De Nemours, 372 F.3d 193, 206 (3d Cir. 2004)
(noting district court’s broad discretion to award prejudgment
interest). The District Court concluded that an award of

-- 29 of 62 --

30
prejudgment interest was “appropriate in this instance,” citing
our statement in Deisler v. McCormack Aggregates Co., that
such relief is “merely an element of a plaintiff’s complete
compensation.” 54 F.3d 1074, 1087 (3d Cir. 1995).
DRBA does not identify an exceptional circumstance
justifying withholding prejudgment interest. Rather, DRBA’s
sole contention on appeal is that other payments to Kopacz,
including LTD benefits and the value of his sick and annual
leave, adequately compensated him, and that the award of
prejudgment interest was thus punitive. However, we earlier
rejected this argument, concluding that other payments made to
Kopacz did not satisfy DRBA’s maintenance obligation.
Having held that Kopacz has a separate and independent right to
maintenance, we conclude that the District Court did not abuse
its discretion in compensating Kopacz for losses stemming from
DRBA’s tardy discharge of its duty. See Matter of Bankers Trust
Co., 658 F.2d at 108 (“Its [prejudgment interest’s] purpose is to
reimburse the claimant for the loss of use of its investment or its
funds from the time of such loss until judgment is entered.”);
Skretvedt, 372 F.3d at 208 (“As a general rule, prejudgment
interest is to be awarded when the amount of the underlying
liability is reasonably capable of ascertainment and the relief
granted would otherwise fall short of making the claimant whole
because he or she has been denied the use of the money which
was legally due.” (quoting Anthuis v. Colt Indus. Operating
Corp., 971 F.2d 999, 1010 (3d Cir.1992))); see also Deisler, 54
F.3d at 1087 (“The Supreme Court has repeatedly held that

-- 30 of 62 --

31
prejudgment interest is merely an element of a plaintiff’s
complete compensation.”).
E. Consequential Damages
In his cross-appeal, Kopacz argues that the District Court
erred in denying his claim for consequential damages. In
Deisler, we held that consequential damages arising from a
shipowner’s failure to provide maintenance and cure, including
lost wages and pain and suffering, are generally recoverable. 54
F.3d at 1082-84. To establish an entitlement to such damages,
however, a plaintiff must articulate, at minimum, a specific
injury, and explain how that injury resulted from the
shipowner’s breach of its maintenance duty. Id. at 1082-83.
Kopacz fails both requirements. In fact, Kopacz fails even to
identify the kind of consequential damages that he seeks—lost
wages, pain and suffering, or other relief. Nor does Kopacz
specifically identify an emotional, physical, or economic injury
resulting from non-payment of maintenance. To the contrary,
Kopacz concedes that all properly documented medical costs
were promptly reimbursed, and he does not allege, much less
prove, that other payments, including SSD and LTD benefits,
were insufficient to cover his basic expenses. Rather, Kopacz
merely asserts that he “really needed the money.” Appellee’s Br.
at 26. On this record, we conclude that the District Court did
not abuse its discretion in denying Kopacz’s claim for lost
wages and pain and suffering.

-- 31 of 62 --

32
The sole type of consequential damages that Kopacz
expressly seeks—attorney’s fees and costs—was properly
denied by the District Court. Attorney’s fees and costs are
recoverable solely where a shipowner’s refusal to pay
maintenance and cure is unreasonable. See Atlantic Sounding
Co., Inc. v. Townsend, --- U.S. ----, 129 S.Ct. 2561, 2571 (2009)
(noting that award of attorney’s fees is permissible for
shipowner’s “callous” and “willful and persistent” refusal to pay
maintenance and cure); Vaughan, 369 U.S. at 530-31 (noting
that attorney’s fees are recoverable where shipowner’s refusal
to pay maintenance stemmed from a “wanton and intentional
disregard” of the legal rights of the seaman); Deisler, 54 F.3d at
1087 (“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.”). Here, DRBA,
providing Kopacz almost $40,000 in wages, sick and annual
leave, and long-term disability benefits, did not exhibit the
requisite callousness. Further, Kopacz did not seek maintenance
until over one year after his date of injury, when Hartford
demanded reimbursement for the amount of SSD payments
made to him. Although DRBA declined to pay maintenance, its
decision, premised on a colorable legal theory, did not reflect a
wanton and intentional disregard of Kopacz’s rights. See
Deisler, 54 F.3d at 1087 (requiring proof that denial of
maintenance was “arbitrary or capricious” to recover attorney’s
fees and costs).

-- 32 of 62 --

33
Accordingly, we conclude that the District Court properly
exercised its discretion to deny Kopacz attorney’s fees and costs.
III. Conclusion
For the foregoing reasons, we will AFFIRM the judgment
of the District Court.
__________________
ALARCÓN, Circuit Judge, dissenting:
I respectfully dissent from the majority’s opinion in this
matter. The question presented for our review is whether a
person who resides on shore and commutes to his or her job as
a day laborer aboard a ferry is entitled to compensation for
lodging and food, if he or she becomes incapacitated, in addition
to receiving long-term disability benefits paid for by his or her
employer that fully cover his living expenses.
In concluding that Mr. Kopacz is entitled to an additional
payment for the cost of his lodging and meals, the majority,
citing this Court’s decision in Barnes v. Andover Co., L.P., 900
F.2d 630 (3rd Cir. 1990), states as follows: “Although Barnes
acknowledged that there was ‘some logic’ in denying
maintenance to shore-based seamen, the court stressed that the
‘life of the law’ is ‘experience,’ not ‘logic.’” Majority Op. at 9.
In a subsequent passage, the majority states: “Barnes strongly

-- 33 of 62 --

34
suggested that commuter seamen are also entitled to
maintenance.” Majority Op. at 10. I disagree with this reading
of Barnes. In fact this Court expressly declined to reach this
question in Barnes. Instead, this Court stated:
Whatever the merits of the double recovery
objection for maintenance paid to land-based
seamen, that argument is inapplicable to Barnes.
Barnes was not shorebound and Andover does not
suggest that his wages were fixed in
contemplation of his providing his own food and
lodging. Thus, the fact that Barnes chose to use
his wages to maintain an on-shore residence
rather than on entertainment or on some frivolity
should not be used to reduce his recovery,
particularly since there is no question here of any
double recovery as a result of land-based wages.”
Id. at 643 (emphasis added).
Moreover, the fact that “DRBA cites no authority
supporting withholding maintenance from commuter seamen,”
Majority Op. at 11, does not logically support a conclusion that
a commuter seaman is therefore entitled to maintenance without
some showing that the equities favor this result. I cannot join
the majority’s number because I am persuaded that extending
the maritime doctrine of maintenance to an employee who
commutes each day from his shore-based home to his job as a
day laborer on a ferry boat is contrary to both logic and
experience.

-- 34 of 62 --

35
I
As noted in Barnes, this Circuit has not yet determined
whether the doctrine of maintenance applicable to seamen who
are incapacitated while on ships that sail to distant ports should
be extended to commuter seamen.
In his brilliant Harvard Law School lectures, Justice
Oliver Wendell Holmes explained the evolution of Common
Law principles as follows:
The object of this book is to present a general
view of the Common Law. To accomplish the
task, other tools are needed besides logic. It is
something to show that the consistency of a
system requires a particular result, but it is not all.
The life of the law has not been logic: it has been
experience. The felt necessities of the time, the
prevalent moral and political theories, intuitions
of public policy, avowed or unconscious, even the
prejudices which judges share with their fellow-
men, have had a good deal more to do than the
syllogism in determining the rules by which men
should be governed. The law embodies the story
of a nation’s development through many
centuries, and it cannot be dealt with as if it
contained only the axioms and corollaries of a
book of mathematics. In order to know what it is,
we must know what it has been, and what it tends
to become. We must alternately consult history
and existing theories of legislation. But the most

-- 35 of 62 --

36
difficult labor will be to understand the
combination of the two into new products at every
stage. The substance of the law at any given time
pretty nearly corresponds, so far as it goes, with
what is then understood to be convenient; but its
form and machinery, and the degree to which it is
able to work out desired results, depend very
much upon its past.
Oliver Wendell Holmes, Jr., The Common Law 3-4, (John
Harvard Library ed., Belknap Press of Harvard Univ. Press
2009) (1881).
The woeful experience suffered by seamen incapacitated
on lengthy voyages to distant ports that led to the adoption of the
maintenance doctrine was vividly described by Justice Story in
1823 in Harden v. Gordon, 11 F. Cas. 480 (C.C.D. Me. 1823)
(No. 6,047).
Seamen are by the peculiarity of their lives liable
to sudden sickness from change of climate,
exposure to perils, and exhausting labor. They are
generally poor and friendless, and acquire habits
of gross indulgence, carelessness, and
improvidence. If some provision be not made for
them in sickness at the expense of the ship, they
must often in foreign ports suffer the accumulated
evils of disease, and poverty, and sometimes
perish from the want of suitable nourishment.
Their common earnings in many instances are
wholly inadequate to provide for the expenses of

-- 36 of 62 --

37
sickness; and if liable to be so applied, the great
motives for good behavior might be ordinarily
taken away by pledging their future as well as past
wages for the redemption of the debt. In many
voyages, particularly those to the West Indies, the
whole wages are often insufficient to meet the
expenses occasioned by the perilous diseases of
those insalubrious climates. On the other hand, if
these expenses are a charge upon the ship, the
interest of the owner will be immediately
connected with that of the seamen. The master
will watch over their health with vigilance and
fidelity. He will take the best methods, as well to
prevent diseases, as to ensure a speedy recovery
from them. He will never be tempted to abandon
the sick to their forlorn fate; but his duty,
combining with the interest of his owner, will lead
him to succor their distress, and shed a cheering
kindness over the anxious hours of suffering and
despondency.
Id. at 483. Justice Story’s opinion in Harden was written in his
capacity as the Circuit Justice for the District of Maine.
In 1903, the United States Supreme Court referred to
Justice Story’s decision in Harden as the first case in this
country that adopted the doctrine of maintenance and cure. The
Osceola, 189 U.S. 158, 172 (1903). The Court summarized
Justice Story’s opinion as follows:

-- 37 of 62 --

In 1920, Congress enacted the Jones Act. Its current text11
provides as follows:
A seaman injured in the course of employment or,
(continued...)
38
Justice Story held that a claim for the expenses of
cure in case of sickness constituted in
contemplation of law a part of the contract for
wages, over which admiralty had a rightful
jurisdiction. The action was in personam against
the master and owner for wages and other
expenses occasioned by the sickness of the
plaintiff in a foreign port in the course of the
voyage, which were allowed.
Id. (emphasis added). The Court held in The Osceola that, upon
reviewing English and American authorities, the law
may be considered as settled upon the following
proposition[]: . . .“[t]hat the vessel and her owners
are liable, in case a seamen falls sick or is
wounded in the service of his ship, to the extent
of his maintenance and cure, and to his wages, at
least as long as the voyage is continued.
Id. at 175. The Court also held “[t]hat 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.11

-- 38 of 62 --

(...continued)11
if the seaman dies from the injury, the personal
representative of the seaman may elect to bring a
civil action at law, with the right of trial by jury,
against the employer. Laws of the United States
regulating recovery for a personal injury to, or
death of, a railway employee apply to an action
under this section.
46 U.S.C. § 30104. Thus, under the Jones Act, a seaman can
now recover for lost wages and compensation for medical
expenses in a civil action against his or her employer.
39
In each of the cases in which the Supreme Court has
applied Justice Story’s analysis of the experiences of seamen
that support application of the doctrine of maintenance and cure,
the facts demonstrate that the seaman was incapacitated while
he served as a member of a vessel traveling to distant ports. In
Calmar S.S. Corp. v. Taylor, 303 U.S. 525 (1938), the Court
defined the terms “maintenance” and “cure”as follows: “The
maintenance exacted is comparable to that to which the seaman
is entitled to while at sea and ‘cure’ is care, including nursing
and medical attention, during such period as the duty continues.”
Id. at 528 (internal citations omitted).
In Aguilar v. Standard Oil Co. of New Jersey, 318 U.S.
724 (1943), the injured seaman was a messman on a steamship
engaged in coastwise trade between New Orleans and East
Coast and Gulf Coast ports. While the vessel was moored in a
port in Philadelphia, the seaman was injured as he left the ship

-- 39 of 62 --

40
on shore leave. Id. at 725. In a consolidated companion case,
a seaman on shore leave was injured as he walked back to his
ship by the driver of a motor vehicle not owned, operated or
controlled by the ship owner. Id. at 725-26.
Citing Justice Story’s decision in Harden, the Court in
Aguilar explained its holding that the seamen were entitled to
cure and maintenance as follows:
From the earliest times, maritime nations
have recognized that unique hazards, emphasized
by unusual tenure and control, attend the work of
seamen. The physical risks created by natural
elements, and the limitations of human
adaptability to work at sea, enlarge the narrower
and more strictly occupational hazards of sailing
and operating vessels. And the restrictions which
accompany living aboard a ship for long periods
at a time combine with the constant shuttling
between unfamiliar ports to deprive the seaman of
the comforts and opportunities for leisure,
essential for living and working, that accompany
most land occupations. Furthermore, the
seaman’s unusual subjection to authority adds the
weight of what would be involuntary servitude for
others to these extraordinary hazards and
limitations of ship life.
Accordingly, with the combined object of
encouraging marine commerce and assuring the
well-being of seamen, maritime nations uniformly

-- 40 of 62 --

41
have imposed broad responsibilities for their
health and safety upon the owners of ships. In
this country these notions were reflected early,
and have since been expanded, in legislation
designed to secure the comfort and health of
seamen aboard ship, hospitalization at home and
care abroad. The statutes are uniform in evincing
solicitude that the seamen shall have at hand the
barest essentials for existence. They do this in
two ways. One is by recognizing the shipowner’s
duty to supply them, and the other by providing
for care at public expense. The former do not
create the duty. That existed long before the
statutes were adopted. They merely recognize
the preexisting obligation and put specific legal
sanctions, generally criminal, behind it.
Id. at 727-29 (footnotes omitted).
In Vaughn v. Atkinson, 369 U.S. 527 (1962), the plaintiff
served as a seaman on the respondent’s vessel from November
26, 1956 to March 2, 1957. He was discharged on the
termination of a voyage. On March 2, 1957, the ship’s master
furnished the seaman with a certificate to enter a United States
Health Services Hospital. He was examined five days later at
the hospital. He was admitted as a patient on March 18, 1957
and treated for tuberculosis. He was discharged to an outpatient
status on June 6, 1957. He continued to receive treatment in that
status for over two years. Id. at 528.

-- 41 of 62 --

42
The ship owner declined to provide the seaman with
maintenance because he “never complained of any illness during
his four months’ service.” Id. The seaman hired a lawyer to
enforce his right to maintenance. He also requested an award of
attorney’s fees. The District Court denied his request for the
payment of his attorney’s fees. The Court of Appeals affirmed
the denial of attorney’s fees and held that the amount he earned
as a taxi driver had to be deducted from the amount he was
entitled to for maintenance and cure. Id. at 529.
Relying on its decision in Calmar S.S. Corp. v. Taylor,
and Justice Story’s opinion in Harden, the Supreme Court held
in Vaughn that “[i]t is difficult to imagine a clearer case of
damages suffered for the failure to pay maintenance than this
one.” Id. at 531.
The Supreme Court has not extended the maritime
doctrine of maintenance and cure to persons who commute to
work aboard vessels that do not sail to distant ports. Instead, the
Court has continued to adhere to Justice Story’s explanation of
the policy underlying that duty in Harden. For example, in
Vaughn, the Court stated:
The reasons underlying the rule, to which
reference must be made in defining it, are those
enumerated in the classic passage by Mr. Justice
Story in Harden v. Gordon, Fed. Cas. No. 6047
(C. C.): the protection of seamen, who, as a class,
are poor, friendless and improvident, from
hazards of illness and abandonment while ill in
foreign ports; the inducement to masters and

-- 42 of 62 --

43
owners to protect the safety and health of seamen
while in service; the maintenance of a merchant
marine for the commercial service and maritime
defense of the nation by inducing men to accept
employment in an arduous and perilous service.
369 U.S. at 531 (quoting Calmar S.S. Corp. v. Taylor, 303 U.S.
at 528) (emphasis added).
The undisputed facts in this matter demonstrate that
Mr. Kopacz was employed by the DRBA as a deckhand on its
ferries. It was his day job. He commuted from his home. He
did not receive lodging or meals from his employer. He
reported an on-the-job injury on December 24, 2004. He was
found to be unfit for duty on DRBA’s ferries on January 5,
2005.
Mr. Kopacz received benefits through a long-term
disability policy paid for by his employer which provided for the
payment of his full wages for the first ninety days of his
disability, and 60% of his wages thereafter so that he would
continue to be provided an income in the event his ability to earn
a living was interrupted or terminated by prolonged disability.
Mr. Kopacz received his full pay for ninety days.
Thereafter he was paid $2,192 per month. The parties stipulated
that his monthly living expenses totaled $2,190 per month.
Mr. Kopacz applied for Social Security Administration
(“SSA”) disability payments. SSA approved his application in
October of 2006. SSA sent him a check in the amount of

-- 43 of 62 --

44
$17,142 which represented his benefits retroactive to July 5,
2005.
Thereafter, Mr. Kopacz received SSA benefits of $1,167
monthly. The DRBA’s long-term disability benefits policy
provided that SSA benefits are an off-set to those provided by
the policy. Hartford, the long-term disability insurer, requested
that Mr. Kopacz repay the overpayment of $16,607.92 which
arose when Mr. Kopacz was awarded SSA payments
retroactively. Mr. Kopacz refused. He insisted that DRBA
repay the Hartford $16,607.92 and the $1,100 per month that
Hartford was deducting.
DRBA filed this action in the District Court seeking a
declaration that it had fully met its obligations to Mr. Kopacz.
The District Court concluded that DRBA was required to make
payments to Mr. Kopacz for his maintenance to cover the cost
of his lodging and food, notwithstanding the fact that DRBA
had provided monthly living expenses benefits through a long-
term disability policy.
The foregoing facts do not meet the requirements for the
application of the doctrine of maintenance set forth in Harden
and adopted by the Supreme Court in The Osceola. As the
Court instructed in Vaughn, the “reasons underlying the rule to
which reference must be made in defining” the doctrine of
maintenance are those enumerated by Justice Story in Harden.
Vaughn, 369 U.S. at 531. In awarding maintenance in this
matter, the District Court failed to set forth the experiences
encountered by a commuter seamen that define his or her
entitlement to maintenance.

-- 44 of 62 --

45
There is no evidence in the record that Mr. Kopacz is a
poor, friendless, and improvident person. He was not subjected
to the perilous hazards and sudden illnesses that can be incurred
from the change of climate while sailing on the high seas. He
was not subject to being abandoned in a distant port - without
wages, or the means of providing for his own maintenance.
Therefore, he clearly did not qualify for maintenance.
In extending the doctrine of maintenance and cure to day
laborers who work on ferries and who do not face the hazards
described by Justice Story, the District Court ignored Justice
Holmes’s admonition that we must look to real-life experience
in creating new rules of law. The fact that the Supreme Court
has categorized seamen as “wards” of admiralty does not justify
an extension of the maintenance doctrine to seamen who
commute to work each day, and in addition, receive benefits
through disability insurance and social security that were
unavailable to Justice Story’s hapless seamen who depended on
their masters to provide their lodging, food, and medical care.
In my view, an award of maintenance under these circumstances
clearly results in an impermissible double recovery for
Mr. Kopacz.
II
Perhaps an even stronger argument that an award of
maintenance and cure does not apply to a commuter seaman
who does not sail to distant ports, and does not receive lodging
and food aboard his employer’s ferry boats, is that such a rule is
contrary to the Shipowners’ Liability (Sick and Injured Seamen)
Convention. See Convention Between the United States of

-- 45 of 62 --

46
America and Other Members of the International Labor
Organization Respecting Shipowners’ Liability in Case of
Sickness, Injury, or Death of Seamen, October 24, 1936, 54 Stat.
1693, 40 U.N.T.S. 169, attached hereto. The Shipowners’
Liability Convention, proclaimed by the President on September
29, 1939, provides in section 1 of Article 4 that: “The ship
owner 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.” 54 Stat. 1693, art. 4, § 1.
In section 3 of Article 4, the Convention also provides
that:
if there is in force in the territory in which the
vessel is registered a scheme applying to seamen
of compulsory sickness insurance, compulsory
accident insurance or workmen’s compensation
for accidents, national laws may provide -
(a) that a shipowner shall cease to be liable in
respect of a sick or injured person from the time
at which that person becomes entitled to medical
benefits under the insurance or compensation
scheme.
Id. at art. 4, § 3. The United States of America adopted the
Convention subject to the understanding that “the United States
understands and construes the words ‘maritime navigation’

-- 46 of 62 --

47
appearing in this Convention to mean navigation on the high
seas only.” Id. at 1704, U. S. ratification subject to
understandings.
The Senate of the United States gave its consent on
June 13, 1938 to the ratification of the Convention by the
President of the United States. President Franklin D. Roosevelt
declared on September 29, 1939 that he “caused the said
convention to be made public to the end that the same and every
article and clause thereof may be observed and fulfilled in good
faith by the United States of America and the citizens thereof .
. . subject to understandings above recited . . . .” Id. at Final
Proclamation.
Extending the doctrine of maintenance and cure to
commuter seamen, as adopted by the United States in ratifying
the Convention, is in direct conflict with its limitation to seamen
incapacitated on voyages on the high seas.
Conclusion
The Supreme Court’s decision in The Osceola limited the
application of the doctrine of maintenance and cure to seamen
incapacitated during voyages to distant ports where the record
shows the following facts:
One. Because of the length of the voyage, the shipowner
has provided the seaman with lodging and food.
Two. The shipowner has ceased paying wages to the
seaman because of his unfitness for duty.

-- 47 of 62 --

48
Three. The shipowner has failed to compensate the
seaman for his food or lodging, for which he is unable to
work because of his injury.
Four. The shipowner has failed to pay for the seaman’s
medical care and hospitalization.
Five. The seaman has been abandoned in a foreign port
without funds to pay for his medical treatment and
transportation to his home.
Mr. Kopacz has not been subjected to any of these
deprivations. His ferry boat did not sail to distant ports on the
high seas. Because he commuted to his work assignment each
day from his home, he did not eat or sleep aboard the
shipowner’s ferry boats. He was not abandoned in a distant port
without compensation for his living expenses and medical care.
The shipowner paid for disability insurance that was sufficient
to cover his monthly living expenses.
I am sure Justice Story would be astonished to learn that
a commuter seaman, whose monthly living expenses were
provided for by his shipowner, must also be furnished additional
funds to pay for lodging and food that he was not entitled to
receive during his eight-hour shift, solely because he is a ward
of admiralty.
While I am not sure Justice Holmes had the doctrine of
maintenance and cure in mind when he instructed us that
experience plays a dominant role in the evolution of the
Common Law, I doubt seriously that he would have concluded

-- 48 of 62 --

49
that the relatively bland experience of a commuter seaman, as
compared to one whose work takes him or her to distant parts on
the high seas, would justify an extension of the doctrine of
maintenance to seamen who do not encounter the conditions
described in the Supreme Court’s decision in The Osceola.
It is also troubling that an award of maintenance to a
commuter seaman is contrary to a Convention that the United
States has entered into with other maritime nations. In relying
on the absence of authority supporting the withholding of
maintenance from commuter seamen to reach its conclusion that
such seamen are therefore entitled to maintenance, Majority Op.
at 11, the majority has failed to set forth the “reasons underlying
the rule to which reference must be made in defining” the
doctrine of maintenance as enumerated by Justice Story in
Harden. Vaughn, 369 U.S. at 531. Until the Supreme Court
addresses this novel question, I believe the lower federal courts
must faithfully comply with the limited reach of the maintenance
rule announced by the Supreme Court in The Osceola as the
supreme law of the land.
Accordingly, I would reverse the double recovery
awarded to Mr. Kopacz in the District Court’s judgment.

-- 49 of 62 --

50
ATTACHMENT
Convention Between the United
States of America and Other
Members of the International
Labor Organization Respecting
Shipowners’ Liability in Case of
Sickness, Injury, or Death of
Seamen, October 24, 1936, 54
Stat. 1693, 40 U.N.T.S. 169

-- 50 of 62 --

-- 51 of 62 --

-- 52 of 62 --

-- 53 of 62 --

-- 54 of 62 --

-- 55 of 62 --

-- 56 of 62 --

-- 57 of 62 --

-- 58 of 62 --

-- 59 of 62 --

-- 60 of 62 --

-- 61 of 62 --

-- 62 of 62 --