MARVIN MILES,                                                      No. 98-35610
                                                                              D.C. No. CV-97-01190-R
Appeal from the United States District Court
for the Western District of Washington
Barbara J. Rothstein, Chief Judge, Presiding
Argued and Submitted
September 13, 1999--Seattle, Washington
Memorandum Filed October 14, 1999
Order Filed December 13, 1999
Before: Alfred T. Goodwin and Mary M. Schroeder,
Circuit Judges, and William W Schwarzer,*
Senior District Judge.
Opinion by Judge Schwarzer
*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.

Gregory N. Bilyeu, Anderson, Connell & Murphy, Belling-
ham, Washington, for the plaintiff-appellant.
Michael B. King and Les E. Reardanz, Lane Powell Spears
Lubersky, Seattle, Washington, for the defendant-appellee.

The memorandum disposition filed October 14, 1999, is
redesignated as an authored opinion by Senior Judge William
W Schwarzer.

SCHWARZER, Senior District Judge:

Marvin Miles appeals from the district court's grant of
summary judgment in favor of defendant American Seafoods
Company. Miles is a seaman seeking maintenance and cure as
a result of a right shoulder injury he sustained on defendant's
vessel in 1997.

In 1995, Miles had injured his right shoulder while working
aboard another of defendant's vessels, the AMERICAN
CHAMPION. In 1996, Miles executed a valid settlement
agreement releasing American Seafoods from

      each and every right or claim which I now have, or
      may hereafter have, because of any matter or thing
      which happened before the signing of this paper;
      including every claim for damages, maintenance,
      wages, cure, transportation, reimbursement, or
      expense . . . whether or not now in existence or
      known to me or whether it develops or becomes
      known to me in the future, which in any way arises
      out of or is connected with my employment on the
      SS "American Champion".

In May 1996, Miles was released by his physician to return
to work without restrictions. He entered into a new employ-
ment contract with defendant, and worked without incident
for one season. In May of 1997, he entered into yet another
contract with defendant to work on the AMERICAN
DYNASTY. His work aboard that vessel included the rapid,
repetitive transfer of fish from a conveyer belt to a fileting
machine. In the course of that work, Miles' right shoulder
popped. Sharp pain set in, forcing him to cease work and
return to shore for medical treatment. Miles seeks mainte-
nance and cure for this injury.


The district court denied maintenance and cure because it
found a dispute of fact whether the 1997 injury was a new
injury or was connected with the earlier shoulder injury. It
then granted summary judgment because "there is no way that
plaintiff will be able to carry his burden of proof that this is
a new injury."

[1] At oral argument, counsel for defendant properly con-
ceded that because it had pled the release as an affirmative
defense, the burden of proving that it precluded liability for
the 1997 injury rested on defendant. See Fed. R. Civ. P. 8(c).
Miles released defendant of "every claim which I . . . may
hereafter have, because of any . . . thing which happened
before the signing of this paper; including every claim . . .
which in any way arises out of or is connected with my
employment on the SS `American Champion.'  " The question
is whether that release covers the 1997 injury.

[2] The claim Miles asserts here is "because of" something
that "happened" after the signing of the release and arose out
of his employment on the AMERICAN DYNASTY. Defen-
dant does not dispute that something new happened in 1997
but argues that it resulted in a "re-injury of his 1995 right
shoulder injury." But the release does not protect defendant
from liability for a future injury of the same part of Miles'
body caused by a subsequent event. Suppose Miles had frac-
tured his arm, signed the release, and on a later voyage frac-
tured that same arm; surely no one would argue that the
release on account of the first fracture discharges liability for
future identical fractures.

[3] However, defendant does not even contend--much less
offer proof--that the injury claimed in 1997 is the "same"
injury, i.e., that he is trying to recover compensation for what
he has previously been compensated for. Defendant simply
argues that the two injuries are "extremely similar" and that
the 1997 injury is the "same type of right shoulder injury" and
an "exacerbation" of the 1995 injury. Under the terms of the


release, that argument is irrelevant. A reasonable reading of
the release would protect defendant against a claim for com-
plications from or recurrence of the injury he suffered in
1995. Cf. Morta v. Korea Ins. Corp., 840 F.2d 1452 (9th Cir.
1988) (auto accident release properly barred claim for dam-
ages resulting from brain clot attributable to accident but
manifesting itself after execution of release). It does not pro-
tect against a claim arising out of a new trauma from sorting
fish on the AMERICAN DYNASTY resulting in another
injury to the same shoulder, even if that injury aggravates an
earlier injury.

[4] Because the interpretation of the release is a question of
law, we may decide that question on this appeal. See id. at
1460. We find no ambiguity but even if there were one, we
must decide it against the drafter. See Herrington v. County
of Sonoma, 12 F.3d 901, 907 (9th Cir. 1993). Moreover,
"[a]dmiralty courts have been liberal in interpreting [the duty
of shipowners to provide maintenance and cure]`for the bene-
fit and protection of seamen who are its wards.' . .. [T]he
shipowner's liability for maintenance and cure [is] among `the
most pervasive' of all and [is] not to be defeated by restrictive
distinctions nor `narrowly confined.' When there are ambigui-
ties or doubts, they are resolved in favor of the seaman."
Vaughan v. Atkinson, 369 U.S. 527, 531-32 (1962) (citations

The judgment is reversed and the matter remanded with
directions to enter judgment for plaintiff on the maintenance
and cure claim.