Here’s Richard J. Martin, Jr.’s latest maritime article recently published in the Louisiana Association for Justice’s Louisiana Advocate.
JONES ACT STATUS REVISITED
In Alexander v. Express Energy Services Operating, L.P., 784 F.3d 1032 (5th Cir. 2015)1, the U.S. Fifth Circuit held that a platform worker whose duties were assisted by an adjacent vessel more than 30% of the time was not a Jones Act seaman. Jones Act seaman status requires a plaintiff to spend more than 30% of his time on the vessel and contributing to its mission.
Michael Alexander was employed by Express as a lead hand/operator in its plug and abandonment (“P & A”) department. On August 11, 2011, he was injured while working on a platform. At the time of the accident, a lift boat owned by Aries Marine was positioned next to the platform, with a catwalk connecting the vessel to the platform. A permanent crane, operated by an Aries employee for the benefit of the P & A crew, was located on the lift boat. Alexander was injured when a wireline from the crane snapped, dropping a plugging tool which had been suspended above the platform’s deck. The tool then rolled onto his foot.
Alexander filed a Jones Act claim against Express, which filed a motion for summary judgment on seaman status, arguing that Alexander was a platform-based worker who failed to satisfy either prong of the Chandris seaman status test.2
With respect to the first prong, Express argued that Alexander did not contribute to the function of a vessel or the accomplishment of its mission because he worked on the wells on non-vessel fixed platforms. With respect to the second prong, Express argued that even though Alexander had shown that approximately 35% of his P & A jobs involved the use of an adjacent lift boat, he had failed to demonstrate that he spent at least 30% of his total work time on the adjacent lift boat.
Alexander then argued that, under Roberts v. Cardinal Services, Inc.3, and Johnson v. TETRA Applied Technologies, L.L.C.4, which applied Roberts, he was allowed to count toward the Chandris temporal requirement all of his time on jobs that used an adjacent vessel, without regard to how much time he himself spent on the vessel.
As is customary for such appeals, the Fifth Circuit reviewed the district court’s judgment de novo.5 Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”6 “The court is to consider evidence in the record in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party.”7/ “To maintain a cause of action under the Jones Act, the plaintiff must be a seaman. Land-based workers are not seamen.”8 To qualify as a seaman, a plaintiff must prove that he meets both prongs of the test set out by the Supreme Court in Chandris.
First, he must prove that his duties “contribute to the function of the vessel or to the accomplishment of its mission,” which does not necessarily require that the plaintiff “aid in navigation or contribute to the transportation of the vessel,” but does require that he “be doing the ship’s work.”9 Second, a seaman 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 its nature.10
This requirement determines which maritime employees in Wilander’s broad category of persons eligible for seaman status because they are “doing the ship’s work”11, are in fact entitled to the benefits conferred upon seamen by the Jones Act because they have the requisite employment-related connection to a vessel in navigation.12
The district court granted Express’s motion for summary judgment on the first prong, concluding that Alexander’s duties in this case were similar to those of the plaintiff in Hufnagel, which this court held did not contribute to the function of a vessel because those duties related to the fixed platform, not the vessel.13 In a footnote at the end of the opinion, the district court opined that Alexander had also failed to meet the second prong.
Putting aside the issue of whether Alexander’s duties contributed to the function of a vessel or the accomplishment of its mission, the Fifth Circuit instead focused on Chandris’ “temporal connection prong” because Chandris requires seamen to spend a substantial amount of time, ordinarily 30%, actually working on a vessel. It was not sufficient under Chandris that Alexander was merely near a vessel on more than 30% of his jobs or that he performed some incidental work on a vessel on those jobs; to be a seaman, he had to show that he actually worked on a vessel at least 30% of the time. Because Alexander failed to produce sufficient evidence to prove that point, which is an essential element of seaman status, the Fifth Circuit affirmed the district court.
Moral of the story: If your client doesn’t work at least one-third of his time on a vessel (or an identifiable fleet of vessels) and contribute to that vessel’s mission, he isn’t a Jones Act Seaman and you should be exploring alternative claims such as general maritime law negligence.
1 46 U.S.C. § 30104 et seq.
2 Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995).
3 266 F.3d 368 (5th Cir. 2001).
4 2012 WL 3253184 (E.D. La. Aug. 7, 2012).
5 Bluebonnet Hotel Ventures, L.L.C. v. Wells Fargo Bank, N.A., 754 F.3d 272, 275 (5th Cir. 2014).
6 Fed.R.Civ.P. 56(a).
7 Bluebonnet, 754 F.3d at 276.
8 Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 346 (5th Cir. 1999), citing Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 117 S.Ct. 1535, 137 L.Ed.2d 800 (1997).
9 Chandris, 515 U.S. at 357.
10 “The fundamental purpose of this substantial connection requirement is to give full effect to the remedial scheme created by Congress and 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.” Alexander, 784 F.3d at 1034. See 1B A. Jenner, Benedict on Admiralty § 11a, pp. 2–10.1 to 2–11 (7th ed.1994).
11 McDermott Int’l., Inc. v. Wilander, 498 U.S. 337, 355, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991).
12 Chandris, 515 U.S. at 368–69.
13 Hufnagel, 182 F.3d at 347.
