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Who Counts as a Seaman? Rumblings from the Fifth Circuit

Updated: Aug 15

Maritime lawyers often argue over who qualifies as a "seaman." Seamen, under maritime law, have special rights. A seaman can sue his or her employer for negligence under the Jones Act (protective legislation from the last century), and can also sue for injuries caused by an unseaworthy condition aboard a vessel. Some people work on or around ships, but aren't considered seamen. Examples include longshoremen who load and unload ships, and shipyard employees who build or fix ships. They get a federal form of worker's compensation under the Longshore and Harbor Workers Compensation Act, but can't sue under the Jones Act or recover for unseaworthiness.

What makes a seaman? The United States Supreme Court has provided a two-part test.[1] The worker must contribute to the function or mission of the vessel; and the worker must have a substantial connection to the vessel (or "identifiable fleet of vessels"). “Substantial” applies both to the duration and nature of the connection. The Court has stated that a worker who spends less than 30% of his time on a vessel fails the duration part and should not count as a seaman.

The “nature” part is trickier. In another case, the Supreme Court added that the worker’s duties should expose him or her to the “perils of the sea.”[2] Quite a bit of legal ink has been shed applying these general principles to specific cases involving injuries to people working on ships and other vessels. One such case is Sanchez v. Smart Fabricators of Texas, LLC, decided by the United States Court of Appeals for the Fifth Circuit on August 14, 2020.

Plaintiff Gilbert Sanchez was a welder employed by Smart Fabricators of Texas, known as “SmartFab.” He worked a total of 67 days, 62 of which were on jack-up oil drilling rigs. A jack-up rig floats and can be a towed from one position to another, and jacks up on legs to drill the sea floor for oil. It counts as a “vessel” under maritime law. Most of Sanchez' work was on a rig next to an inland pier, but 13 days were on a rig on the outer continental shelf. The rigs were owned by the same company (not SmartFab). Sanchez was on the offshore rig when he tripped over a pipe welded to the deck.

A federal district court in Texas had found that Sanchez met the durational requirement of seaman status, having spent most of his short career with SmartFab on two commonly-owned jack-up rigs. But what about the nature of his employment? Most of the time Sanchez was doing welding work on a rig set up next to a pier. Not a seaman, the lower court concluded, reasoning that Sanchez' work did not expose him to the perils of the sea. On appeal, the Fifth Circuit Court of Appeals reversed the lower court. Previous Fifth Circuit cases, the appellate panel explained, had granted seaman status to the likes of barge crane operators[3] and vessel repair supervisors[4] employed in dockside environments. Sanchez wasn’t any different from these plaintiffs.

So far a pretty routine decision. One member of the panel, however, “concurred specially,” meaning he had something else to say. Justice W. Eugene Davis agreed that the three-judge panel was bound by prior Fifth Circuit precedent, but argued that the precedent was wrong. Justice Davis stressed that, under another Supreme Court precedent,[5] seamen and other harbor workers (including repair workers) are meant to be mutually exclusive categories. Unlike longshoreman and shipyard workers, seamen owe their allegiance to a vessel, not just a shoreside employer. A seaman’s work should “take him to sea.” Previous Fifth Circuit cases, Justice Davis argued, had neglected this requirement. Sanchez’s work was essentially land-based, in that most days he worked a shift on a rig next to a pier and went home. He never “sailed” with either rig (which would presumably entail staying aboard while the rig was towed to or from an offshore drilling site). He didn't belong in the seaman category.

Justice Davis urged the entire Fifth Circuit to review the case and bring that court’s precedent in line with Supreme Court case law. Federal appeals are usually decided by a three-judge panel, but the entire appellate court (27 justices in the Fifth Circuit) can vote to rehear a case “en banc.” And Justice Davis was not alone—the other two justices on the panel joined in his concurrence. It will be interesting to see whether the entire Fifth Circuit agrees to rehear the case, and if so, whether it narrows the test for seaman status. While Fifth Circuit precedent is binding only in Texas, Louisiana and Mississippi, its maritime law decisions are influential elsewhere.

[1] Chandris Inc. v. Latsis, 515 U.S. 347 (1995). [2] Harbor Tug & Barge Co. v. Papai, 520 U.S. 548 (1997). [3] In re Endeavor Marine, 234 F.3d 287 (5th Cir. 2000). [4] Naquin v. Elevating Boats, L.L.C., 744 F.3d 927 (5th Cir. 2014). [5] McDermott Int’l v. Wilander, 498 U.S. 337 (1991).

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