6 minute read
Crew safety
Jason Waguespack, Managing Director at leading specialist US marine law firm Galloway, reviews the recent Court of Appeals decision in a case that could have important implications for the exposure of insurers to seamen under the Jones Act.This federal law gives seamen who were injured in the course of their employment the right to sue their employer for personal injury damages in the absence of redress under workers’compensation rights for land-based workers
On August 14, 2020, the US Court of Appeals for the Fifth Circuit filed its opinion in the case of Sanchez v Smart Fabricators of Texas, LLC, 970 F.3d 550 (2020). At issue before the court was whether a welder who was injured on a rig jacked up above water, a step away from and adjacent to the shore side pier, was a Jones Act seaman.
Although the court held that he was, it also issued an unusual concurring opinion, joined by all three judges on the panel. The court urged the entire Fifth Circuit to re-hear the case because it was convinced that the precedent that mandated the result was inconsistent with US Supreme Court’s holdings on the issue of Jones Act seaman status. Before considering Sanchez, it would be helpful to review the test for Jones Act seaman status developed by the Supreme Court. The Jones Act, part of the Merchant Marine Act of 1920, allows a “seaman injured in the course of employment… to bring a civil action at law, with the right of trial by jury, against the employer.” 46 U.S.C. § 30104.[1]
The Jones Act does not define the term “seaman.” Thus, it has fallen to the courts to determine whether a maritime worker injured in the course and scope of employment is a “seaman” who can sue the employer under the Jones Act.
TWO PRONG TEST
The Supreme Court established a two-prong test for seaman status in Chandris, Inc. v Latsis, 515 U.S. 347 (1995).
First, the employee’s duties must contribute to the function of the vessel or to the accomplishment of its mission. Essentially, a court must determine if the employee contributed to the ship’s work.
Second, the employee must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and nature. In other words, a court must review the claimed connection for both its temporal, or duration, aspect and its substantive, or nature, aspect.
The fundamental purpose of this prong is “to separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based workers who have only a transitory or sporadic connection to a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea.” Chandris, 515 U.S. at 368.
“The duration of a worker’s connection to a vessel and the nature of the worker’s activities, taken together, determine whether a maritime employee is a seaman, because the ultimate inquiry is whether the worker in question is a member of the vessel’s crew or simply a land-based employee who happens to be working on the vessel at a given time.” Id.at 370.
Jones Act status under critical review
JUST A GUIDELINE
In determining the duration element of the vessel connection requirement, the Supreme Court adopted a general rule that a worker who spends less than about 30% of his or her time in the service of a vessel in navigation should not qualify as a Jones Act seaman.
The Supreme Court explained that this figure “serves as no more than a guideline established by years of experience, and departing from it will certainly be justified in appropriate cases. As we have said, the inquiry into seaman status is of necessity fact specific; it will depend on the nature of the vessel and the employee’s precise relation to it.” Id.at 371. Nevertheless, because of this general rule of thumb, the duration element of the second prong is relatively easy to establish.
Determining whether an employee has a substantial
connection to a vessel in navigation in terms of its nature has proven to be more problematic.
The US Supreme Court provided more details on this element in Harbor Tug & Barge Company v Papai, 520 U.S. 548 (1997).
In that case, in finding that Papai, who was hired for one day to paint the housing structure of a tug at dockside, was not a Jones Act seaman, the Supreme Court stated emphatically “Jones Act coverage is confined to seaman, those workers who face regular exposure to the perils of the sea.” Papai, 520 U.S. at 560. This is the framework established by the Supreme Court as Sanchezwas considered by the Fifth Circuit.
Sanchez was a welder who was injured when he tripped on a pipe welded to the deck of a jack up drilling rig. The drilling rig where the accident occurred was the Enterprise 263, a rig on the Outer Continental Shelf.
But 72% of Sanchez’s employment was spent on the Enterprise WFD 350, a vessel under common ownership as the Enterprise 263, located adjacent to an inland pier.
The three-judge panel of the Fifth Circuit had to decide if Mr. Sanchez qualified as a Jones Act seaman under the Chandrisand Papaitest as applied by Fifth Circuit precedent.
The parties stipulated that Sanchez met the first prong of the test, that is, that his employment contributed to the function of the vessel or to the accomplishment of its mission, so the panel started with the second prong.
The panel easily concluded that Sanchez satisfied the duration element because almost 90% of his employment was aboard two jack up drilling rigs owned by the same company. Thus, the question of whether Sanchez qualified as a seaman was narrowed to the nature element of the test. The entire time Sanchez worked aboard the ENTERPRISE WFD 350, the rig was jacked up above water, adjacent to the shore side pier.
ONLY TWO STEPS
Sanchez only worked a day shifts and he returned home every evening. He never sailed with the vessel, and instead only had to take two steps off the rig and onto land to go home in the evening.
Despite this, the panel held that Mr. Sanchez was a Jones Act seaman. In doing so, the panel was bound by prior Fifth Circuit precedent in In Re Endeavour Marine, Inc., 234 F.3d 287 (5thCircuit 2000), and Naquin v Elevating Boats, LLC, 744 F.3d 927 (5thCircuit 2014).
As noted above, however, in an unusual concurring opinion, all three judges on the panel urged the Fifth Circuit to review the case en bancbecause they were “persuaded that our case law is inconsistent with the teaching of the Supreme Court. It is clear…that Sanchez was a land based fitter and welder whose duties did not take him to sea; consequently, he does not qualify as a seaman”.
Specifically, the panel was persuaded that Fifth Circuit precedent fails to appropriately consider whether a worker’s duties regularly exposes them to the perils of the sea. Sanchez, like Papai, did not work on a sailing vessel and his duties did not take him to sea. Like Papai, therefore, Sanchez should not be a Jones Act seaman.
The Fifth Circuit did agree to rehear Sanchez en bancand the case was argued before the full Fifth Circuit in February of this year. We are currently awaiting the Fifth Circuit’s en bancdecision. If the full Fifth Circuit agrees with the panel’s concurrence, it will narrow the test for Jones Act status in the Fifth Circuit to exclude those workers whose duties do not take them to sea or expose them to its perils.
[1] Prior to the passage of the Jones Act, a seaman did not have under the common law the right to sue his employer for negligence.
Jason Waguespack, Galloway
