On August 11, 2001, James Avery, then 18 years old, was employed on the M/V Reflections, a yacht docked in Newport, Rhode Island. In the course of his duties, he fell from the yacht, struck his head on the dock, and fell into the water. Before his rescue, he spent 7 to 10 minutes under water. The result was anoxic brain injury — anoxic refers to the lack of oxygen — ■ so severe that his life was despaired of.
By the time of his discharge from the last of several hospitals (in March 2002), Avery could not speak intelligibly but could follow commands, respond to questions by closing his eyes, make sounds, and was starting to use his head and chin to activate assistive equipment. His doctors then formulated plans for further rehabilitation, opining that more cognitive and functional progress was possible. They contemplated that Avery would be given inpatient treatment at a specialized institute in Chicago and then receive further outpatient day treatment at a Florida facility.
During this time, the vessel owner had paid heavily for Avery’s medical expenses as part of its obligation to provide maintenance and cure for an injured seaman.
See Calmar S.S. Corp. v. Taylor,
303 U.S.
*106
525, 527-29,
The district court held an evidentiary hearing in April 2003, receiving on Avery’s behalf deposition testimony from Avery’s treating physicians and his mother, and Avery’s medical records; the owner offered testimony from a neuro-psychologist and a letter from a neurologist. On May 7, 2003, the district court issued a decision granting Avery’s motion to order further care and denying the owner’s motion.
In re RJF Int’l Corp.,
On this appeal, the owner makes three different arguments. The first is that the district court misread the law because it ordered maintenance and cure for one who now suffers from brain damage and associated symptoms
(e.g.,
spastic muscle reactions) that are clearly permanent. This, says the owner, is contrary to
Farrell v. United States,
When his condition has stabilized and further progress ended short of a full recovery, the seaman may still have a remedy to compensate him for his permanent injury,
2
but is no longer entitled to maintenance and cure. Thus, in
Farrell
the Court said that maintenance and cure did not extend to ongoing medical care to ease the pain of headaches and to control convulsions deemed permanent conditions.
In this case, the difficulty for the owner is that the district court recognized
*107
the fuzzy boundary between improvement and palliation, but it found that the evidence showed that Avery was still capable of improvement through continued treatment.
In re RJF,
At some points in his main brief and oral argument, counsel for the owner appears to suggest that the case law cuts off maintenance and cure whenever a permanent condition exists, regardless' of whether its severity can be reduced. But this reading would contradict repeated references in the case law to maximum medical recovery as the dividing line.
E.g., Vaughan v. Atkinson,
The owner’s second argument on this appeal is that the district court erred because the rehabilitation envisaged for Avery is directed in part to coping with muscle spasticity and contractions. The owner says, with some support, that these are mere symptoms of the permanent brain injury. He then argues, blending this new argument into the old, that this shows that curative treatment is no longer available and that any further expenditure for Avery’s rehabilitation is not properly one for maintenance and cure.
But Avery’s doctors clearly opined that he could make further cognitive improvement as a result of treatment — not just by the passage of time — and their testimony may also suggest that even his muscle ailments can be permanently lessened. Certainly evidence as to the former supports the district court’s finding that “further rehabilitation would be more than simply palliative, and would improve his medical condition.”
In re RJF,
Of course, the owner might have tried to distinguish between curative treatment still possible and accompanying palliative measures, and then argued that the cost of palliation offered in the course -of treatment should be segregated and excluded from the owner’s obligation. Some segregation would be silly — imagine excluding pain medicine from the setting of a broken bone — but perhaps in some settings a distinction might be drawn. Such a distinction could matter because maintenance and cure is exempt from the limitation of liability rules in admiralty.
Brister v. A.W.I., Inc.,
However, in this court the owner has adopted an all or nothing approach (although it appears that it did attempt to make a segregation argument in the district court). It is not our task to devise alternative arguments that have not been pressed on appeal. Indeed, such a segregation argument in this case would involve both legal and factual issues of some complexity which neither side has briefed.
Similarly, the owner’s claim that the maintenance and cure award should be curtailed because Avery was allegedly eligible for Medicare was not presented in timely fashion in the district court; before *108 the hearing, the owner argued only that medical insurance would cover palliative care, adding tersely that Avery was “also entitled to Medicare or Medicaid.” The present claim was raised only in a closing brief intended to sum up after the hearing and not to raise new issues. Thus this argument too must await another day.
Affirmed.
Notes
.
See generally Pelotto v. L & N Towing Co.,
. The traditional remedy for damages is based on the unseaworthiness of the vessel under general maritime law; but a statutory remedy for negligence under the Jones Act is also commonly employed, 46 U.S.C. app. § 688 (2000);
see Ferrara v. A. & V. Fishing, Inc., 99
F.3d 449, 453-54 (1996), and Avery has claims under both theories pending before the district court.
In re RJF,