Recently, attorney Lee J. Bloomfield, presented a seminar entitled: “Don’t Miss the Boat: Basics of Maritime Personal Injury Law in 45 Minutes”
From the seminar papers, we are producing a blog series. This is the sixth blog, post of this series. This post discusses Requirements for Jones Act Coverage.
The Jones Act does not define the term “seaman.” It has thus been up to case law to establish a test to be used to determine whether or not an employee is a seaman under the Act. The question of who is a seaman, or a member of the crew of a vessel, is a mixed question of law and fact.
Requirements for Jones Act Coverage
Although Jones Act cases may be brought in state court, most decisions addressing Jones Act issues, including the issues of coverage, are federal court decisions. Until 1991, the federal appellate courts were split on the question of what is required for Jones Act coverage. In 1991, the United States Supreme Court in McDermott International, Inc. v. Wilander, 498 U.S. 337 (1991) weighed in on the requirements for an employee to be covered under the Jones Act. McDermott was followed in 1995 by Chandris, Inc. v. Latsis, 515 U.S. 347 (1995). In Chandris, the Court held:
1) There must be a vessel in navigation;
(2) The employee’s duties must contribute to function of the vessel, or to the accomplishment of its mission; and,
(3) The employee must have a connection to the vessel that is substantial in terms of both its duration and its nature.
Chandris, Inc. v. Latsis, 515 U.S. 347 (1995).
A maritime employee’s status as a seaman is determined by looking at the totality of a worker’s employment, the duration of his or her connection to the vessel, and the nature of his or her activities, taken together. It is not the employee’s particular job that is decisive of seaman status, but the employee’s connection to a vessel.
The Court’s concern in Chandris was that a worker who only has a transitory or sporadic connection to a vessel would not be covered. The Court sought to distinguish between land-based workers, who do not qualify for Jones Act status, and sea-based workers who do, and generally adopted as “an appropriate rule of thumb for the ordinary case” a percentage approach known as the 30% rule of thumb, to be used in determining whether the duration of a worker’s connection to a vessel is sufficient. As a general rule, a worker who spends less than about 30% of his time in the service of a vessel in navigation will not qualify for Jones Act status. However, a worker who spends a greater percentage of time may be covered.
The Supreme Court decisions are clear that Jones Act coverage does not depend on the location of a worker’s accident. A maritime worker who attains Jones Act status by virtue of his or her relationship to a vessel does not lose such status when injured on shore. The Court held that a worker should not move back and forth between Jones Act coverage and other remedies because of the activity he or she was engaged in, or the fortuitous location of the accident at the time of injury.
The Supreme Court revisited Chandris in Harbor Tug and Barge Co. v. Papai, 520 U.S. 548 (1997). In Harbor Tug, the Court explained that the inquiry into the worker’s employment-related connection to the vessel must concentrate on whether the employee’s duties take him or her to sea. This, the Court felt, would “give substance to the inquiry both as to the duration and the nature of the employee’s connection to the vessel and be helpful in distinguishing land-based from sea-based employees.”
In In re Endeavor Marine Inc., 234 F.3d 287 (5th Cir. 2001), the Fifth Circuit dealt with application of the “going to sea” test set forth in Harbor Tug. Endeavor Marine involved an employee who worked for a company that provided personnel on an as-needed basis to crane and heavy equipment businesses. The employee, a crane operator assigned to a derrick barge, was injured while attempting to moor the derrick barge to a cargo barge on the Mississippi River. The district court found that the employee was not a Jones Act seaman because his duties did not take him to sea. The Fifth Circuit reversed, holding that the “going to sea” passage in Harborwas an abbreviated way of conveying that the employee has a connection to a vessel which Tug exposes him or her “to the perils of the sea.” The court concluded that Harbor Tug did not “articulate a new and specific test for seaman status,” and that a worker’s duties do not literally have to carry him or her to sea for there to be Jones Act coverage.
The Sixth Circuit has held that the question of seaman status should only be removed from the trier of fact by summary judgment or by directed verdict in rare circumstances, and even marginal Jones Act claims should be submitted to the jury. Taylor v. Anderson-Tully Co., 960 F.2d. 150 (6 Cir.1992). However, the Court th may decide a question of seaman status when the underlying facts are undisputed. See Arnold v. Luedtke Engineering Co., 196 Fed. Appx. 331 (6th Cir. 2006).
The Fifth Circuit applied its prior holding in Endeavor Marine in the 2014 case of Naquin v. Elevating Boats, LLC, 2014 WL 917053 (5th Cir. 2014). In Naquin, the plaintiff was a vessel repair supervisor at defendant’s shipyard. His primary job was the maintenance and repair of a fleet of lift boats. The plaintiff spent 70% of his time working aboard these lift boats while they were moored, jacked up or docked. He also performed repairs, painted, and went on test runs. The remaining 30% of his time was spent working on shore. While working on shore, he was injured while operating a land-based crane. A jury found Jones Act status and awarded damages.
The defendant appealed, arguing that the plaintiff was not covered under the Jones Act, but rather was a land-based ship repairman who performed classic harbor worker duties. However, the Fifth Circuit ruled that the evidence was sufficient to establish that he was a seaman entitled to Jones Act coverage. The court stated that a worker seeking seaman status must separately demonstrate that his or her connection to a vessel or fleet of vessels is, temporally, more than fleeting, and, substantively, more than incidental, and that these inquiries are not always distinct, but are interrelated elements of the same substantial connection requirement. It further noted that courts have consistently rejected the categorical assertion that workers who spend their time aboard vessels near the shore do not face maritime perils. While these near-shore workers may face fewer risks, they still remain exposed to the perils of a maritime work environment.
The requirement of a connection to a vessel can be established by showing that the plaintiff has a connection to a “fleet” of vessels. Chandris, 515 U.S. at 368. A fleet of vessels is an identifiable group of vessels under common ownership or control. Harbor Tug, 520 U.S. at 549. The Fifth Circuit has held that its 30% rule of thumb doctrine can be satisfied by a showing that 30% of a worker’s time was spent on vessels, every one of which was under his or her defendant-employer’s common ownership or control. Roberts v. Cardinal Services, Inc., 266 F.3d 368, 375 (5th Cir. 2001).
Roberts v. Cardinal Services, Inc. involved an injury to a plaintiff who was working on a
stationary off-shore platform. At issue was whether the plaintiff, in attempting to reach the 30% rule of thumb threshold, could count time involving third party vessels. The court rejected this argument, stating:
. . . when a group of vessels is at issue, a worker who aspires to seaman statusmust show that at least 30 percent of his time was spent on vessels, every one ofwhich was under his defendant-employer’s common ownership or control.
Id. at 377.
The plain meaning of this statement is that when a plaintiff works on a number of vessels, he or she must show that at least 30% of his or her time is spent on vessels that are all under common ownership or control. A plaintiff, in attempting to reach the 30% threshold, simply cannot count time spent on vessels that are not under a common ownership or control, merely because he or she happens to work on these vessels. However, if the plaintiff does spend 30% of work time on a group of vessels under such common ownership or control, he or she has met the test. As such, a plaintiff does not have to spend their time exclusively on one vessel, as long as the vessels on which he or she works can be considered a fleet. This “fleet” doctrine may afford Jones Act protection to workers, such as some harbor workers, who split their time on the various vessels owned or controlled by their employers.
Our next post will cover: What is a Jones Act Vessel?