United States District Court, D. Hawaii
ORDER GRANTING MAINTENANCE AMOUNT CURRENTLY DUE TO
PLAINTIFF BARNES BY DEFENDANT SEA HAWAII RAFTING,
C. KAY UNITED STATES DISTRICT JUDGE
29, 2018, the Court entered a minute order stating, among
other things, that it “intend[ed] to issue a judgment
[against Sea Hawaii Rafting, LLC (“SHR”)]
entitling Plaintiff Barnes to maintenance from the date of
his injury to the current date at the rate of $34 per day,
subject to any increase that Plaintiff Barnes may establish
at trial.” ECF No. 322; see also ECF No. 324.
The minute order gave Defendant Henry, because he is both a
personally named defendant and the owner of SHR, until June
5, 2018, to file any opposition the proposed judgment being
entered. ECF No. 322.
5, 2018, Defendant Henry filed a letter objecting to entry of
the proposed judgment. ECF No. 326. In Defendant Henry's
objection, he stated that he needed to consult with an
attorney prior to any proposed judgment being entered.
on June 7, 2018, the Court entered a minute order granting
Defendant Henry until June 19, 2018, to obtain counsel and to
file any additional opposition to the proposed judgment. ECF
No. 327. The minute order further stated that Plaintiff
Barnes would be given an opportunity to respond to any
further objection from Defendant Henry. Id.
19, 2018, Defendant Henry filed an additional objection to
entry of the proposed judgment. ECF No. 328. In his
objection, Defendant Henry raises questions about whether
Plaintiff Barnes has already reached maximum cure.
Id. Defendant Henry also: (1) makes discovery
requests for certain documents pertaining to Plaintiff
Barnes's claims for maintenance and cure; and (2) states
that he remains unable to find counsel to represent him at
the non-jury trial set for July 31, 2018.
Defendant Henry's objections to the proposed judgment
being entered, the Court finds it appropriate to instead
issue an order setting forth the amount of maintenance SHR
owes Plaintiff Barnes as of the current date.
Court's ruling is based upon the Ninth Circuit's writ
of mandamus. See Barnes v. Sea Hawaii Rafting, LLC,
889 F.3d 517, 543 (9th Cir. 2018); see also Order
Regarding Maintenance at p. 1, ECF No. 313. It is further
based upon this Court having: (1) found that SHR was
Plaintiff Barnes's Jones Act employer and the owner of
the M/V Tehani; (2) granted Plaintiff Barnes's Jones Act
negligence per se claim against SHR under Count XII of his
First Amended Complaint; and (3) found that Plaintiff Barnes
is entitled to maintenance and cure from July 3, 2012, the
date of his injury, until he reaches maximum cure.
See Order Granting in Part and Denying in Part
Plaintiff's Motion for Summary Judgment for Payment of
Maintenance and Cure at p. 21, ECF No. 44; see also
ECF No. 324 at pp. 1-2 (citing earlier orders).
Ninth Circuit has defined “maximum cure” as the
point at which “the seaman is well or his condition is
found to be incurable.” Permanente S. S. Corp. v.
Martinez, 369 F.2d 297, 298 (9th Cir. 1966); Luksich
v. Misetich, 140 F.2d 812, 814 (9th Cir. 1944)
(“At most, recovery should not be extended beyond the
time when the maximum degree of improvement to [an injured
seaman's] health is reached.”). The Ninth Circuit
made the following ruling regarding Plaintiff Barnes's
injuries: “Due to his head injuries, he can no longer
drive a car or swim.” Barnes, 889 F.3d at 525.
“bear the burden of proving by a preponderance of the
evidence that [Plaintiff Barnes] has reached maximum
cure” in relation to his injuries. Hedges v. Foss
Mar. Co., No. 3:10-CV-05046 RBL, 2015 WL 3451347, at *5
(W.D. Wash. May 29, 2015) (collecting cases); Zermeno v.
N. Pac. Fishing, Inc., No. C16-1540RSL, 2017 WL 4843484,
at *2 (W.D. Wash. Oct. 26, 2017) (“[I]t is the
shipowner's burden to prove by a preponderance of the
evidence that plaintiff reached maximum cure . . . .”).
Defendants in this matter have not yet carried their burden
to establish that Plaintiff Barnes has reached maximum cure.
On the other hand, Plaintiff Barnes must establish the amount
of cure to which he is entitled. E.g., Buenbrazo v. Ocean
Alaska, LLC, No. C06-1347C, 2007 WL 7724765, at *4 (W.D.
Wash. Feb. 28, 2007) (stating that a seaman has a “duty
to show at trial . . . the amount of maintenance and cure to
which [he] is entitled”).
writ of mandamus, the Ninth Circuit expressed concern over
the lapse of time that has passed without Plaintiff Barnes
receiving any maintenance and urged the Court to proceed
expeditiously. Barnes, 889 F.3d at 543. In
accordance with the Ninth Circuit's directive and this
Court's minute order filed May 31, 2018, ECF No. 324, and
based upon the above earlier orders and findings by this
Court, the Court FINDS AND ORDERS that Defendant SHR, in
personam, owes Plaintiff Barnes for:
(1) Maintenance from July 3, 2012 to June 20, 2018 (a total
of 2, 179 days), which, at the rate of $34 per day, and
subtracting maintenance payments that SHR has already made,
the sum of $72, 160.34 subject to (1) potential upward
increase at trial and (2) a determination whether Plaintiff
Barnes has reached maximum cure on an earlier date; and
(2) Additional maintenance at the rate of $34 per day will be
ordered, subject to potential upward increase at trial, until
Plaintiff Barnes has reached maximum cure.