6 minute read
Bridging the gap
Jason Waguespack, Managing Director at leading US-based maritime law firm Galloway, explains the background leading up to an important recent decision that extends the liability of shipowners and their insurers to pilots under the Sieracki doctrine
The United States affords maritime workers numerous statutory protections for employment-related injuries. The scope or basis of an individual worker’s protection depends on the worker’s employment classification.
Congress attempted to cover the full spectrum of maritime workers, ranging from blue-water seaman to land-based longshoremen, by enacting a patchwork of statutes that were intended to augment the general maritime law remedies.
The Jones Act, 46 U.S.C. § 30104, grants seamen a remedy against their employer for causes of action based on negligence, while the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 (“LHWCA”), covers landbased longshoremen. Seamen have additional remedies available under general maritime law, the federal body of common law developed by the courts.
ABSOLUTE DUTY
A common and expansive maritime remedy is the doctrine of unseaworthiness. The doctrine holds that a shipowner has an absolute duty to provide a seaworthy vessel to certain workers onboard the vessel.
The test to determine whether a vessel is seaworthy is whether the vessel and its appurtenances are “reasonably fit for their intended use.” Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550 (1960). It is important to note that a shipowner’s liability for an unseaworthy vessel is not contingent on negligence; rather, it is a form of strict liability.
It was unclear whether a longshoreman could bring an unseaworthiness claim against a vessel owner for many years. The Supreme Court resolved the uncertainty when it decided Seas Shipping Co. Inc. v. Sieracki, 328 U.S. 82 (1946), which held that longshoremen could sue vessel owners for unseaworthiness and that an employer-employee relationship was not required for an injured longshoreman to recover from a vessel owner. Longshoremen filing an unseaworthiness claim under this doctrine would come to be known as a “Sieracki seaman”.
Subsequently, in 1972, Congress amended the LHWCA, adding § 905(b), which in part mandated that no worker covered under the LHWCA could maintain an action for unseaworthiness against a vessel owner. This change effectively eliminated the unseaworthiness cause of action for longshoremen. Still § 905(b) allows an injured worker to bring a third-party claim against a vessel owner for negligence, but this requires the claimant to prove a vessel owner’s negligence, a more burdensome standard than the “warranty” of seaworthiness.
An additional requirement of § 905(a) states that to be covered by the LHWCA, an injured maritime worker must be the employee of someone. While this is a seemingly innocuous coverage requirement, it has an outsized effect of eliminating coverage for independent contractors. While Congress attempted to provide a statutory right of recovery for all maritime workers, courts have classified some workers as neither seamen nor longshoremen.
UNIQUE POSITION
Pilots occupy this unique position among maritime workers as they are neither seaman under the Jones Act nor longshoremen under the LHWCA.
Pilots are typically self-employed independent contractors who are licensed by the state and belong to a pilot association. They are brought aboard vessels to navigate waterways where local knowledge is essential. A pilot association is not the pilot’s employer but instead acts as an agent for the pilots.
As pilots are independent contractors, they do not satisfy the employee requirement under § 905(b) and cannot recover under the LHWCA. Further, they do not qualify as a seaman because they do not have the requisite connection to a vessel that is “substantial in both duration and nature.” Bach v. Trident Shipping Co., 708 F. Supp. 772, 773 (E.D. La. 1998).
Pilots are in the tenuous position where their injuries aboard a vessel are neither recoverable under the Jones Act nor the LHWCA. The United States Court of Appeals for the Fifth Circuit recently extended to pilots the ability to bring an unseaworthiness action against vessel owners.
In Rivera v. Kirby Offshore Marine, L.L.C., 983 F.3d 811 (5th Cir. 2020), the Fifth Circuit held that a pilot could recover from the third-party vessel owner under a theory of unseaworthiness. Captain Rivera was a typical state-commissioned Branch Pilot for the Port Aransas Bar and Corpus Christi Bay in Texas. He piloted vessels through the Port Corpus Christi Ship Channel and the LaQuinta Channel. In August 2016, Captain Rivera was brought aboard a vessel to pilot her to an oil buoy in the Corpus Christi Harbor. Captain Rivera suffered injures while onboard the vessel.
Pilots are in the tenuous position where their injuries aboard a vessel are neither recoverable under the Jones Act nor the LHWCA. The United States Court of Appeals for the Fifth Circuit recently extended to pilots the ability to bring an unseaworthiness action against vessel owners.
SIERACKI DOCTRINE
Captain Rivera filed suit against the vessel owner in the Southern District of Texas alleging, among other claims, unseaworthiness under the Sieracki doctrine and the vessel owner’s negligence under § 905(b) of the LHWCA. The trial court held that the vessel was unseaworthy under Sieracki and, in the alternative, the vessel owner was negligent under § 905(b).
The Fifth Circuit examined on appeal whether Captain Rivera was permitted to bring a § 905(b) claim because to do so, he would have to be considered an employee. Again, pilots are neither employees of their associations nor the vessel owners. They are instead generally regarded as independent contractors who work aboard vessels.
Because Captain Rivera was not an employee of any entity, he did not qualify for LHWCA protections. The court held that because he did not qualify for protection under the LHWCA, nor as a seaman under the Jones Act, he could instead pursue an unseaworthiness claim as a Sieracki seaman.
This decision expands the Sieracki seaman doctrine in the Fifth Circuit to pilots. Bluewater vessel owners and their insurer should be aware that pilots may be entitled to recover for an unseaworthiness claim against a vessel owner.
Jason Waguespack, Galloway
Teamwork delivers the goods under extremeconditions
Robert Meijer, SMIT Salvage’s Manager Projects, explains how co-operation and teamwork enabled the removal of the “Northguider”, one of the most northerly wrecks in the history of salvage
In December of 2018 the 55-meter-long Norwegian shrimp trawler “Northguider” (above pic) ran aground in icy water on the rocks on Sparreneset in the Nordaustlandet nature reserve, a location in the Northern part of Svalbard (also known as Spitsbergen), only about a thousand kilometers south of the North Pole. Helicopters picked up the 14 members of the crew from the vessel, which was listing about 20 degrees. It was possible to safely remove the 300,000 liters of diesel on board in early 2019. Officials wanted to have the wreck removed in order to restore the site of the nature reserve and for this task SMIT Salvage proposed an approach to remove the stranded vessel.
PRISTINE ENVIRONMENT
After extensive discussions about the measures to mitigate further impact on the pristine environment, SMIT was awarded the contract for this great, albeit complicated, project.
The location is extremely difficult to reach and very inhospitable. In addition, the ship was listing severely. After the salvage plan had been approved by the Norwegian authorities, SMIT mobilised a floating sheerlegs vessel to right the “Northguider”, to repair the damaged starboard hull with patches in order to carry out a supported refloating operation.
Exceptionally challenging weather and ice conditions
