Fifth Circuit Reinforces Maritime Employer’s Third-Party Claim for Contribution for Maintenance and Cure

Fifth Circuit Reinforces Maritime Employer’s Third-Party Claim for Contribution for Maintenance and Cure

Trevor M. Cutaiar

Trevor M. Cutaiar

September 29, 2021 04:18 PM

In a recent maritime case, Poincon v. Offshore Marine Contractors, Inc., the United States Fifth Circuit Court of Appeals analyzed a contribution claim for maintenance and cure liability between a maritime employer (“Offshore Marine”) and a third party (“REC”).


The underlying case in Poincon v. Offshore Marine Contractors, Inc., 2021 U.S. App. LEXIS 24438 (5th Cir. Aug. 13, 2021) involved personal injury to a cook on a liftboat arising out a 2015 collision with an REC vessel and a 2018 slip and fall. Although the plaintiff alleged injury as a result of the 2015 collision with ongoing symptoms, she did not assert a claim for maintenance and cure. However, following her 2018 slip and fall, her symptoms worsened and she ultimately filed suit against both Offshore Marine and REC.

The district court severed the plaintiff’s claims against REC. This prompted Offshore Marine to assert a third-party complaint against REC for contribution to its maintenance and cure obligation. The district court granted summary judgment in favor of REC, holding that the 2018 slip and fall was not a foreseeable consequence of the 2015 collision and that the 2018 slip and fall was an intervening and superseding cause that cut off liability to REC for maintenance and cure.


On appeal, the Fifth Circuit stated that the district court relied on its own new rule for contribution claims involving multiple accidents: “a first accident’s maintenance and cure obligation ends where a second accident’s begins.” The Fifth Circuit held that the district court erred in adopting a new rule of law where there was governing Fifth Circuit precedent.

The Fifth Circuit noted three cases which developed the right of maritime employers to seek contribution for maintenance and cure:

  • Bertram v. Freeport McMoran, Inc., 35 F.3d 1008, 1013 (5th Cir. 1994)
  • Adams v. Texaco, Inc., 640 F.2d 618 (5th Cir. Unit A Mar. 1981)
  • Savoie v. Lafourche Boat Rentals, Inc., 627 F.2d 722 (5th Cir. Unit A 1980)

Contrary to the rule announced by the district court, these cases stand for the proposition that a third party is liable for an employer’s expense of maintenance and cure to the extent the third party’s negligence caused or contributed to the employee’s injury and need for maintenance and cure. To show entitlement to contribution, a maritime employer must show negligence and causation. While negligence is often straightforward, causation can be more complicated as it may implicate the common law negligence doctrines of proximate cause and superseding cause.

The Fifth Circuit found the pragmatic concerns of the district court regarding the difficulty of applying Adams/Savoie/Bertram to different factual circumstances presented by separate accidents to be unfounded. The court noted that complicated questions of fact are routinely submitted to the factfinder. The court also took issue with the district court’s treatment of superseding cause, which effectively absolved REC of proving this affirmative defense at trial.

The Fifth Circuit concluded that Offshore Marine established a genuine dispute of material fact as to whether REC caused, in part, the plaintiff’s need for maintenance and cure and remanded the case for further proceedings.

Trending Articles

Announcing the 2023 The Best Lawyers in America Honorees

by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Could Reign Supreme End with the Queen?

by Sara Collin

Canada is revisiting the notion of abolishing the monarchy after Queen Elizabeth II’s passing, but many Canadians and lawmakers are questioning if Canada could, should and would follow through.

Teacup on saucer over image of Queen's eye

Best Lawyers: Ones to Watch in America for 2023

by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

The Best Lawyers in South Africa™ 2023

by Best Lawyers

Best Lawyers proudly announces lawyers recognized in South Africa for 2023.

South African flag

Famous Songs Unprotected by Copyright Could Mean Royalties for Some

by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?

Announcing the 2023 The Best Lawyers in Canada Honorees

by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots

Wage and Overtime Laws for Truck Drivers

by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

The Upcycle Conundrum

by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

What the Courts Say About Recording in the Classroom

by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Choosing a Title Company: What a Seller Should Expect

by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

Announcing the 2022 Best Lawyers® in the United States

by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

Caffeine Overload and DUI Tests

by Daniel Taylor

While it might come as a surprise, the over-consumption of caffeine could trigger a false positive on a breathalyzer test.

Can Caffeine Cause You to Fail DUI Test?

Thirteen Years of Excellence

by Best Lawyers

For the 13th consecutive year, “Best Law Firms” has awarded the most elite and talented law firms across the country through a thorough and trusted data review process.

Red, white and blue pipes and writing on black background


2022: Another Banner Year

by John Fields

Block O’Toole & Murphy continues to secure some of New York’s highest results for personal injury matters.

Three men in business suits standing in office

Announcing The Best Lawyers in Australia™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from Australia.

The Best Lawyers in Australia™ 2023

Announcing The Best Lawyers in Germany™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from Germany.

Black, red and yellow stripes