The plaintiff also contends the defendant willfully and arbitrarily failed to pay maintenance and cure when it was due. On this issue, the plaintiff must prove each of the following elements by a preponderance of the evidence:
1. the plaintiff was entitled to maintenance and cure;
2. the defendant willfully and arbitrarily failed to provide maintenance and cure; and
3. the defendant's failure to provide maintenance and cure resulted in injury to the plaintiff.
If you find the plaintiff has proved each of the elements on which he she has the burden of proof, you should answer "yes" on the verdict form where indicated; otherwise answer "no."
Comments to the Jury Instructions
If the jury finds that the defendant willfully and arbitrarily failed to pay maintenance or cure, the plaintiff will be entitled to reasonable attorneys' fees as determined by the court. A special interrogatory will be required. See Kopczynski v. The Jacqueline, 742 F.2d 555, 559 (9th Cir.1984)
BS&J NOTE: Since the drafting of this Jury Instruction in 2007, the Supreme Court of the United States in Atlantic Soundings v. Townsend declared that punitive damages are available to seamen who have been willfully and wantonly denied maintenance and cure. In cases involving willful withholding of maintenance and cure benefits, punitive damages should now be plead in the complaint. Both punitive damages and compensatory damages may be available in appropriate cases to an injured seaman.
