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When considering the concept of "coverage" under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 901 et. seq., it must be kept in mind that employment is best thought of as a linear continuum with three major groupings. First, there will be situations where the employment will not be considered "maritime" at all, and therefore, not covered under the LHWCA. (Such employment would more properly be covered under a state workers' compensation system.) Second, there will be the situation where the claimant is a longshore/harbor worker or other "maritime" worker and, thus, is clearly covered under the LHWCA. Third, there will be situations where the employment is maritime in nature, but the worker is more properly classified as a seaman attached to a vessel and entitled to a recovery under the Jones Act (Merchant Marine Act). 46 U.S.C. § 688.
Sections 2(3) (status) and 3(a) (situs) of the LHWCA set forth the requirements for coverage. "Status" refers to the nature of the work performed; "situs" refers to the place of performance. Prior to the enactment of the 1972 Amendments, the LHWCA contained only a situs test. Nacirema Operating Co. v. Johnson, 396 U.S. 212 (1969) (recovery was limited to those injured on navigable waters, including any dry dock). (For a complete discussion of the development of jurisdiction/coverage under the LHWCA, see Topic 1.4.)
One of the motivations behind the 1972 Amendments, however, was the recognition that modern cargo-handling techniques had moved much of the longshore worker's duties off of vessels and onto the land. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 6 BRBS 150 (1977). Accordingly, the covered situs of Section 3(a) was expanded, and a status test was added, extending coverage to "maritime employees," including, but not limited to longshore workers, harbor workers, ship repairmen, shipbuilders, and ship breakers. When the definition of "employee" was changed, the definition of "maritime employer" was changed accordingly.
Subsequently, the LHWCA was again amended in 1984. These amendments primarily affect the concept of jurisdiction by adding several exclusions to coverage.
1.1.1 Standing to File a Claim
Only a claimant (injured worker, or LHWCA defined dependent of a deceased worker) has the right to file a claim. Nothing in the LHWCA, nor the regulations (specifically 20 C.F.R. §§ 702.221-702.225) gives an employer or carrier the right to file a claim under the LHWCA for an injured employee. The comprehensive scheme of the LHWCA is the whole source of rights and remedies which affords specific rights and remedies by imposing specific responsibilities. Nation v. Morris, 483 F. 2d 577, 588-589 (1973). If no relief is stated in the LHWCA, then no relief exists. Such is the case when an employer, for strategic purposes, attempts to file a claim. Caruso v. Textion Marine, 96-LHC-400 (unpublished)(1997). In Caruso, the injured worker filed a Louisiana state worker's compensation claim. The Louisiana statute, La R.S. 23:1035.2, dictates that the state worker's compensation scheme may not be applied where there is LHWCA coverage. Smith v. Gretna Machine and Iron Works, 646 So.2d 1096 (La. App. 5 Cir. 1994)("La.R.S. 23:1035.2 now divests the state of concurrent jurisdiction in LHWCA situations; it has removed the choice of law forum."); See also: Fontenot v. AWI, Inc., 923 F.2d 1127 at 1132 (5th Cir. 1991)(injured worker's coverage by LHWCA provided an exclusive remedy and therefore barred recovery under state law.)
However, the Louisiana statute provides no incite as to how the coverage question is to be determined when the injured worker does not file a LHWCA claim. The employer in Caruso attempted to file a LHWCA claim in order for there to be a determination of coverage. The administrative law judge determined that the employer lacked standing to file a claim and that whether or not the claimant was precluded from filing a state compensation claim was a matter for the state court to decide. In this regard it should be noted that it is axiomatic that federal tribunals "should not render advisory opinions upon issues which are not pressed..., precisely framed and necessary for decision." U.S. Alpine Land and Reservoir Co., 887 F.2d 207, 214 (9th Cir. 1989), citing United States v. Fruehauf, 365 U.S. 146, 157 (1961).
[Editor's Note: The Louisiana legislation/jurisprudence conflicts with most other jurisdictions' rulings on the issue of concurrent jurisdiction. See for example: All South Stevedoring Co. V. Wilson, 469 S.E. 2d 348 (Ga. Ct. App. 1996), 1996 AMC 1874 (Georgia recognizes concurrent jurisdiction).] 1.2 SUBJECT MATTER JURISDICTION
In Ramos v. Universal Dredging Corp., 10 BRBS 368 (1979), a majority of the Benefits Review Board (hereinafter "the Board") held that questions of status and situs involve the Board's subject matter jurisdiction; therefore, these issues may be raised by the Board sua sponte. See also Mire v. Mayronne Co., 13 BRBS 990 (1981). Similarly, in Erickson v. Crowley Maritime Corp., 14 BRBS 218 (1981), the Board held that parties' stipulations concerning coverage under the LHWCA are not controlling, as subject matter jurisdiction cannot be waived.
The Ninth Circuit, however, reversed the Board's decision in Ramos. Ramos v. Universal Dredging Corp., 653 F.2d 1353 (9th Cir. 1981). The court held that questions of status and situs involve coverage under the LHWCA, not subject matter jurisdiction. The court held that the Board had jurisdiction in Ramos because the injury occurred on navigable waters.
In Perkins v. Marine Terminals Corp., 673 F.2d 1097 (9th Cir. 1982), rev'g 12 BRBS 219 (1980), the Ninth Circuit reiterated its ruling in Ramos. The touchstone in determining whether admiralty jurisdiction exists is whether the case "involves a significant relationship to traditional maritime activity." Perkins, 673 F.2d at 1101; Ramos, 653 F.2d at 1359 (discussing Executive Jet Aviation v. City of Cleveland, 409 U.S. 249 (1972)).
The Fifth Circuit has also distinguished jurisdiction from coverage (status and situs). Munguia v. Chevron U.S.A., Inc., 999 F.2d 808, 810 n.2, 27 BRBS 103, 104 n.2 (CRT) (5th Cir. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1839 (1994).
[ED. NOTE: Care must be taken, however, in order not to confuse the concepts of subject matter jurisdiction; coverage (situs and status), or as the Ninth Circuit referred to it, "personal jurisdiction;" and the Section 20(a) presumption (a causation allotting mechanism that presumes that the claim comes within the provisions of the LHWCA). In Munguia, which cites to Section 20(a) and New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 1038 (5th Cir. 1981), the Fifth Circuit confuses these concepts. 999 F.2d 808, 810 n.2, 27 BRBS 103, 104 n.2 (CRT). One should keep in mind that there must be subject matter jurisdiction before the issue of coverage (situs and status) can be addressed, and only after it is determined that there is coverage will the Section 20(a) presumption come into play. Since the case law often uses the term "jurisdiction" to mean "coverage," as a matter of policy, these terms will be used interchangeably and subject matter jurisdiction will be referred to as, just that, "subject matter jurisdiction."]
1.3 NO SECTION 20(a) PRESUMPTION OF COVERAGE
There is no presumption of coverage under the LHWCA. The Board has held consistently that the Section 20(a) presumption (a presumption of causation--see Topic 20 infra) does not apply to coverage under the LHWCA. Sedmak v. Perini N. River Assocs., 9 BRBS 378 (1978), aff'd sub nom. Fusco v. Perini N. River Assocs., 622 F.2d 1111 (2d Cir. 1980), cert. denied, 449 U.S. 1131 (1981). The Board derived its position from Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35 (2d Cir. 1976), aff'd sub nom. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 6 BRBS 150 (1977), wherein the Second Circuit stated that the Section 20(a) presumption is inapplicable to "an interpretive question of general import such as ... [coverage under Section 3(a)]." 544 F.2d at 48. Accord Stockman v. John T. Clark & Son, Inc., 539 F.2d 264 (1st Cir. 1976), cert. denied, 433 U.S. 908 (1977); George v. Lucas Marine Construction, 28 BRBS 230, 233 (1994), aff'd mem. sub nom., No. 94-70660 (9th Cir. 1996); Davis v. Doran Co. of California, 20 BRBS 121 (1987), aff'd, mem., 865 F.2d 1257 (4th Cir. 1989). See also, Stockman v. John T. Clark & Son of Boston, Inc., 539 F.2d 264, 4 BRBS 304 (1st Cir. 1976), cert. denied, 433 U.S. 908 (1977).
In Sedmak, the Board held the Second Circuit's reasoning equally applicable to the issue of status under Section 2(3). The Board distinguished and rejected an earlier contrary holding in Overseas African Construction Corp. v. McMullen, 500 F.2d 1291 (2nd Cir. 1974). The Board determined that in McMullen the Second Circuit had held that a prima facie case of coverage had been made. Thus, the court did not rely totally on the Section 20(a) presumption. Sedmak, 9 BRBS at 383.
In Boughman v. Boise Cascade Corp., 14 BRBS 173 (1981), the Board further explained that it is the claimant's obligation to prove the facts which form the basis of coverage without the benefit of the Section 20(a) presumption because these facts are within the claimant's control.
Cases holding the Section 20(a) presumption inapplicable to the coverage elements include: Coyne v. Refined Sugars, Inc., 28 BRBS 372 (1994); Palma v. California Cartage Co., 18 BRBS 119 (1986); Sheridon v. Petro-Drive, Inc., 18 BRBS 57 (1986); Wynn v. Newport News Shipbuilding & Dry Dock Co., 16 BRBS 31 (1983).
In Munguia v. Chevron U.S.A., Inc., 999 F.2d 808, 810 n. 2 (5th Cir. 1993), however, the Fifth Circuit specifically stated that "it should be noted that jurisdiction is presumed under the Act," citing New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 1038 (5th Cir. 1981). Turner, in turn, stated that "[t]he Act itself contains a statutory presumption that in the absence of substantial evidence to the contrary, the claim is within the provisions of the Act. This presumption of coverage was first used in connection with the issue of jurisdiction but has been extended to include the nature and extent of the injury." 661 F.2d at 1038.
[ED. NOTE: The cases cited for this point in Turner, however, all deal with the Section 20(a) presumption (a causation allotting mechanism that presumes that the claim comes within the provisions of the LHWCA). As noted previously, Munguia confuses the concepts of subject matter jurisdiction, coverage (situs and status), and the Section 20(a) presumption as to causation.]
1.4 LHWCA v. JONES ACT
Although there are several federally-based, maritime-oriented, personal injury remedies for recovery (i.e., general maritime common law, unseaworthiness doctrine, the Death on the High Seas Act, 46 U.S.C. §§ 761, Admiralty Extension Act of 1948, 46 U.S.C. §740, et. seq.), the LHWCA and the Jones Act, 46 U.S.C. § 688, are the most prominent, accounting for the overwhelming number of claims. See generally, Calbeck v. Travelers Ins. Co., 370 U.S. 114, 82 S.Ct. 1196 (1962) (admiralty jurisdiction as applicable to LHWCA); Interstate Steamship Co. V. Nielson, 338 F.2d 879 (6th Cir. 1964); Gilmore and Black, The Law of Admiralty, (1975), Chapter 6, "Rights of a Seamen and Maritime Workers; Recovery for Death and Injury," sec. 6-5 n.12 p. 253.
Importantly, these two acts are mutually exclusive. Thus, when dealing with a "water-based" (as opposed to "land-based") LHWCA claim, it must be determined if the claim falls within the criteria of LHWCA coverage, or belongs more properly under the Jones Act.
[ED. NOTE: There is always the possibility that the claim belongs under neither jurisdiction and should be decided under a state workers' compensation act. See, e.g,, Brockington v. Certified Elec., 903 F.2d 1523-28 (11th Cir. 1990), cert. denied, 498 U.S. 1026 (1991) (land-based electrician injured while riding in boat in which he had helped to load supplies and equipment for a land-based job on an island did not have status under the LHWCA; there was nothing inherently maritime about his tasks as an electrician and the "marine environment" in which he was injured had no connection to the general nature of his employment). See Fontenot v. AWI, Inc., 923 F.2d 1127, 1129 n.9 (5th Cir. 1991); but cf. Randall v. Chevron U.S.A., Inc., 13 F.3d 888 (5th Cir. 1994); Bienvenu v. Texaco, Inc., 124 F.3d 692 (5th Cir. 1997)("we again repair to our troubled efforts to define maritime employment."). For a thorough discussion on coverage when an employee is injured over water see Topic 1.6.1 infra.]
The Jones Act, in pertinent part, reads as follows:
46 U.S.C. § 688 (underscoring added).
Admiralty jurisdiction and the coverage of the Jones Act depends only on a finding that the injured was "an employee of the vessel, engaged in the course of his employment" at the time of his injury. The fact that a Jones Act petitioner's injury occurred on land is not material. 46 U.S.C.A. § 740; Senko v. La Crosse Dredging Corp., 352 U.S. 370, 373 (1957). See also, Swanson v. Marra Bros., Inc., 328 U.S. 1, 4 (1946).
The Jones Act was passed in 1920; the LHWCA was enacted in 1927 providing recovery for injury to a broad range of land-based maritime workers (only injured over water when originally enacted), but explicitly excluding from its coverage a master or member of a crew of any vessel.
The LHWCA, in pertinent part, reads as follows:
33 U.S.C. § 902(3)).
It must be kept in mind that the Jones Act does not define "seaman" just as the LHWCA does not define "master or member of a crew." It must also be kept in mind that the Supreme Court has held that the LHWCA restricts the benefits of the Jones Act to "members of the crew of a vessel." Senko, 352 U.S. at 371 (citing Swanson, 328 U.S. 1).
The LHWCA and the Jones Act in theory are mutually exclusive, so that a "seaman" under the Jones Act is the same as a "master or member of a crew" of any vessel. McDermott Int'l v. Wilander, 498 U.S. 337, 26 BRBS 75 (CRT) (1991); Swanson v. Marra Bros., Inc., 328 U.S. 1, 7 (1946); Pizzitolo v. Electro-Coal Transfer Corp., 812 F.2d 977 (5th Cir. 1987), cert. denied, 484 U.S. 1059 (1988); See also Smith v. Alter Barge Line, Inc., 30 BRBS 87 (1996) (citing Southwest Marine, Inc. v. Gizoni, 502 U.S. 81 (1991)) ("The terms "member of a crew" under the LHWCA and "seaman" under the Jones Act are synonymous.").
However, from a practical view the limits may not always appear so black and white. See for example Simms v. Valley Line Co., 709 F.2d 409 (5th Cir. 1983) where the Fifth Circuit stated:
Simms, 709 F.2d at 411-12.
[ED. NOTE: Interestingly, in Simms, the claimant had filed a petition seeking review of an Order of the Board dismissing him as a party from an administrative appeal seeking a determination that the maritime worker was not a seaman. (The employer's worker's comp carrier had appealed the determination of non-seaman status.) Simms had a Jones Act claim pending and did not want to jeopardize his possible determination of seaman status. The Fifth Circuit noted his theory of appealable adverse effects arising out of the unique relationship of the Jones Act and the LHWCA but held that there had not yet been a final Board determination of non-seaman status.]
[ED. NOTE: For the period 1927-1946, the Supreme Court did not recognize the mutual exclusivity of the LHWCA and the Jones Act. Swanson, 328 U.S. 1.]
"Master or member of a crew" is a refinement of the term "seaman" in the Jones Act; it excludes from LHWCA coverage those properly covered under the Jones Act. Wilander, 498 U.S. 337; White v. Valley Line Co., 736 F.2d 307 (5th Cir. 1984). Thus, the key requirement for Jones Act coverage (seaman status) is indirectly defined by elimination under LHWCA jurisprudence and, vice versa; the key requirement for LHWCA status is the elimination of seaman status (providing of course, the worker is a maritime employee).
Thus, there is an ever present tension between the LHWCA and the Jones Act. The Jones Act is a maritime negligence statute that gives seamen a right of recovery against a ship or employer. The LHWCA, on the other hand, covers "maritime workers" but excludes members of the crew of a vessel as noted above. The LHWCA fact-finder is the administrative law judge. Recall, that the LHWCA is to be liberally construed with a presumption of coverage.
There is also jurisprudence noting that the Jones Act is to be liberally construed as well. See Offshore Co. V. Robinson, 266 F.2d 769, 773-774, 1954 AMC 2049, 2054 (5th Cir. 1959); Wilson v. Crowley Maritime, 22 BRBS 459, 460, 462 n. 3(1989)(Jones Act, like the LHWCA is to be liberally construed in the claimant's favor); Cf. Gautreaux v. Scurlock Marine, Inc., 107 F.3d. 331 (5th Cir. 1997)(en banc)(reversing prior longstanding circuit law, held: (1) seamen in Jones Act negligence cases are bound to a standard of ordinary prudence in the exercise of care for their own safety, not to a lesser duty of slight care; (2) Jones Act employers are not held to a higher standard of care than that required under ordinary negligence); Smith v. Tow Boat Serv. & Management Inc., 66 F.3d 336 (9th Cir. 1995)(unpublished)(rejecting "slight care" standard); Karvelis v. Constellation Lines, S.A., 806 F.2d 49, 52-53 and n. 2 (2nd Cir. 1986), cert. denied, 481 U.S. 1015, 107 S.Ct. 1891 (1987)(approving jury instruction informing that both employer and employee, under the Jones Act, are charged with a duty of reasonable care under the circumstances); Robert Force, "Allocation of Risk and Standard of Care Under the Jones Act: Slight Negligence,' Slight Care'?", 25 J.Mar.L.& Comm. 1, 31 (1994). Under the Jones Act, a plaintiff making use of the "saving to suitors" clause, 28 U.S.C.A. § 1333, usually requests a jury trial in federal district court. Thus, under the Jones Act, a jury is generally the finder of fact and the issue of seaman status is a mixed question of law and fact.
[ED. NOTE: Article III, § 2 of the United States Constitution extends the judicial power of the United States to "all cases of admiralty and maritime jurisdiction. The Judiciary Act of 1789, revised at 28 U.S.C.A. §1333, gave exclusive admiralty jurisdiction to the federal district courts, "saving to suitors, in all cases, the right of a common law remedy where the common law is competent to give it." This clause is the means by which a plaintiff in a Jones Act claim has the right to request a jury trial. For a thorough discussion of the "saving to suitors" clause, see Gilmore and Black, The Law of Admiralty, 2d Ed. (1975).]
From a practical standpoint, since the Jones Act and LHWCA focus on a worker's employment/duties from two separate viewpoints, the outcome of a case/claim may, to some extent, depend on the forum in which it is adjudicated. But note Figueroa v. Campbell Industries, 45 F.3d 311 (9th Cir. 1995) and see infra There will be occasions when, had the worker instituted an LHWCA claim, an administrative law judge might have found coverage under the LHWCA, but had the same worker, with the same factual situation, instituted a Jones Act claim, a federal district court jury might have found Jones Act coverage and there would not be a Judgment Not On Verdict (JNOV).
[ED. NOTE: For an example of what the Fifth Circuit has described as "a classic instance of the case that could have gone either way," see Abshire v. Seacoast Products, 668 F.2d 832 (5th Cir. 1982). See however the Ninth Circuit where the litigation under the LHWCA and Jones Act went both ways. Ramos v. Universal Dredging Corp., 15 BRBS 140 (1982), remanded from, 653 F.2d 1353 (9th Cir. 1981)(employer could waive situs and status arguments because it only presented issues of "personal coverage"- not subject matter jurisdiction), rev'g 10 BRBS 368, 372 (§§2(3) and 3(a) presented issues of subject matter jurisdiction that could not be waived by either party). Compare to Ramos v. Universal Dredging Corp., 547 F.Supp. 661 (D. Ha. 1982)(claimant was a seaman as a matter of law).
And, in fact, at least under present Ninth Circuit case law the LHWCA and Jones Act seem to coexist. Figueroa v. Campbell Industries, 45 F.3d 311 (9th Cir. 1995) See also, Topic 1.4.6 for a discussion on this.]
In McDermott, Inc. v. Boudreaux, 679 F.2d 452, 459 (5th Cir. 1982), the Fifth Circuit stated:
The Fifth Circuit in McDermott, however, went on to note that:
679 F.2d at 459 n.7.
In Simms, 709 F.2d at 411, the Fifth Circuit went on to state:
709 F.2d 409, 411-12 (footnotes omitted).
An unsuccessful plaintiff in a Jones Act case (i.e. where there is a finding of no actual Jones Act status) may still be able to bring a claim under the LHWCA since the period for filing a claim is tolled by the filing of the Jones Act claim. 33 U.S.C.A. 913(d). See also Young & Co. v. Shea, 397 F.2d 185 (5th Cir. 1968) (no collateral estoppel in compensation act proceedings following jury findings of no injury in Jones Act suit).
The Fifth Circuit has held that where an administrative law judge issues a compensation order under the LHWCA ratifying a settlement agreement, a "formal award" is deemed to have been made and the injured party can no longer bring a Jones Act suit for the same injuries. Sharp v. Johnson Bros. Corp., 973 F.2d 423, 26 BRBS 59 (CRT) (5th Cir. 1992), cert. denied, 113 S. Ct. 2333 (1993). The court reasoned that once a final, formal award is made, the parties are no longer free to seek another mutually exclusive remedy.
In the Fifth Circuit the entry of an order by the administrative law judge constituted a finding that the injuries were compensable under the LHWCA. By seeking and acquiescing to the finding, the plaintiff under the Jones Act case is collaterally estopped from contesting LHWCA coverage. Id.; Fontenot, 923 F.2d at 1133 ("...a finding of LHWCA coverage sought and obtained by the injured worker from the Department should preclude any subsequent action against his employer for the same injury.").
[ED. NOTE: See also Topic 1.4.6, Jurisdictional Estoppel, which includes a discussion of the Ninth Circuit position.]
In South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251 (1940), overruled by McDermott International v. Wilander, 498 U.S. 377 (1991), an LHWCA case, the Court held that Congress had given to the deputy commissioner (district director), an administrative officer, the authority to determine who is a "member of a crew" under the LHWCA. If there was evidence to support the deputy commissioner's findings, they were conclusive. Id. In Senko v. La Crosse Dredging Corp., 352 U.S. 370 (1957), overruled by McDermott International v. Wilander, 498 U.S. 377 (1991), the Supreme Court applied the same rule to findings by the jury in Jones Act cases. 352 U.S. at 374 ("A jury's decision is final if it has a reasonable basis.").
The Court in Wilander stated that it was not asked to reconsider this rule, but noted that the question of who is a "member of a crew" and therefore who is a "seaman" is better characterized as a mixed question of law and fact. When the underlying facts are established, and the rule of law is undisputed, the issue is whether the facts meet the statutory standard.
Significantly, the Court in Wilander summed up the LHWCA/Jones Act clash as follows:
Wilander, 498 U.S. at 356, 111 S. Ct. at 818.
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. See Desper v. Starved Rock Ferry Co., 342 U.S. 187, 190 (1952) ("The many cases turning upon the question whether an individual was a seaman' demonstrate that the matter depends largely on the facts of the particular case and the activity in which he was engaged at the time of injury."). Nonetheless, summary judgment or a directed verdict is mandated where the facts and the law will reasonably support only one conclusion. Anderson, 477 U.S. at 248, 250-51; Texas Co. v. Gianfala, 222 F.2d 382, rev'd per curium, 350 U.S. 879 (1955); Texas Co. v. Savoie, 240 F.2d 674 (5th Cir. 1957); See also Abshire v. Seacoast Products, Inc., 668 F.2d 832 (5th Cir. 1982)(issue of seaman status under Jones Act is to be left to jury even when claim to seaman status appears to be relatively marginal one; "only rarely may a district judge conclude as a matter of law that an injured individual is not a seaman."); Barrios v. Louisiana Const. Materials Co., 465 F.2d 1157 (5th Cir. 1972), citing Senko v. La Cross Dredging Corp., 352 U.S. 370, 77 S.Ct. 415 (1957); rehearing denied 353 U.S. 931, 77 S.Ct. 716 and Grimes v. Raymond Concrete Pile Co., 356 U.S. 252, 78 S.CT. 687 (1958); Producers Drilling Co. v. Gray, 361 F.2d 432 (5th Cir. 1966)(under same circumstances workers are seaman as a matter of law); Soncie v. Trantwein Bros., 275 Cal. App. 2d. 20, 25-26 (1969)(held: bargehand may be summarily adjudged "seaman" as a matter of law); Longmeie v. Sea Drilling Co., 610 F.2d 1342 (5th Cir. 1980).
However summary judgements on the issue of seaman status:
Bodden v. Coordinated Caribbean Transport, Inc., 369 F.2d 273, 275 (5th Cir. 1966).
More recently the Supreme Court espoused:
Harbor Tug and Barge Co. V. Papai, 117 S.Ct. 1535 (1997), citing McDermott International, Inc. v. Wilander, 498 U.S. 337, 356 (1991) and Chandris, Inc. v. Latsis, 515 U.S. 347, 368-369.
The situation is complicated by the fact that an OALJ case is never routed through the federal district court during its appeal process. (The appeal process is as follows: Office of Administrative Law Judges to the Benefits Review Board to the appropriate circuit court to the U.S. Supreme Court.) As noted in McDermott, Inc. v. Boudreau, 679 F.2d 452 (5th Cir. 1982), this creates a "zone of uncertainty". See, e.g., Fontenot v. AWI, Inc., 923 F.2d 1127 (5th Cir. 1991).
[ED. NOTE: For a well-researched historical treatment of the tension between administrative tribunals (district director/administrative law judge) and the federal courts, see Thorne, "The Impact of the Longshore and Harbor Workers' Compensation Act on Third Party Litigation," Tulane University School of Law Admiralty Law Institute (1993), 68 Tul. L. Rev. 557 (1993).]
At least one commentator, Thorne, supra, acknowledges that a final finding of non-seaman status by an administrative law judge may bar a Jones Act suit. (Credit, in part, for this deference is attributed to the emergence of independent administrative law judges.) See Sharp v. Johnson Bros. Corp., 973 F.2d 423 (5th Cir. 1992), cert. denied, 113 S. Ct. 2333 (1993); Fontenot v. AWI, Inc., 923 F.2d 1127, 1132 (5th Cir. 1991); Richendollar v. Diamond M Drilling Co., 784 F.2d 580, 582 n. 1 (5th Cir. 1986), aff'd in part and rev'd in part, on recon., en banc, 819 F.2d 124 (5th Cir.), cert. denied, 484 U.S. 944 (1987); Simms v. Valley Line Co., 709 F.2d 409 (5th Cir. 1983; Hagens v. United Fruit Co.,135 F.2d 842 (2nd Cir. 1943). See also Harmon v. Baltimore & Ohio R.R., 560 F. Supp. 914 (D. D.C. 1983), aff'd, 741 F.2d 1398 (D.C. Cir. 1984). Cf. Vilanova v. United States, 851 F.2d 1, 4 (1st Cir. 1988), cert. denied, 488 U.S. 1016 (1989); Grijalva v. United States, 781 F.2d 472 (5th Cir.), cert. denied, 479 U.S. 822 (1986).
[ED NOTE: From a practical standpoint, an injured worker may now think twice before choosing to pursue a Jones Act claim in lieu of a LHWCA claim. See Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997)(en banc)(reversing prior longstanding circuit law, held (1) seaman in Jones Act negligence cases are bound to a standard of ordinary prudence in the exercise of care for their own safety, not to a lesser duty of slight care; (2) Jones Act employers are not held to a higher standard of care than that required under ordinary negligence); See also Smith v. Tow Boat Serv. & Management, Inc., 66 F.3d 336 (9th Cir. 1995)(unpublished)(rejecting "slight care" standard); Karvelis v. Constellation Lines, S.A., 806 F.2d 49, 52-53 and n.2 (2nd Cir 1986), cert. denied 481 U.S. 1015, 107 S.Ct. 1891 (1987)(approving jury instruction informing that both employer and employee under Jones Act are charged with duty of reasonable care under the circumstances).
Gautreaux concluded that "[t]he reasonable person standard under the Jones Act becomes one of the reasonable seaman in like circumstances. To hold otherwise would unjustly reward unreasonable conduct and would fault seaman only for their gross negligence, which was not the contemplation of Congress." See Robert Force, "Allocation of Risk and Standard of Care Under the Jones Act: Slight Negligence,' Slight Care'?", 25 J.Mar.L. &Comm. 1, 31 (1994). Thus, a worker preferring the security of workers compensation will file under the LHWCA coverage rather than gamble on a Jones Act claim where a finding of unreasonableness on the part of the maritime worker could deny him coverage.
1.4.2 Master/member of the Crew (seaman)
In order to determine whether an employee is excluded under the LHWCA as a "member of a crew," this term of art must itself be examined.
The terms "member of a crew" under the LHWCA and "seaman" under the Jones Act are synonymous. Smith v. Alter Barge Line, Inc., 30 BRBS 87 (1996) (citing Southwest Marine, Inc. v. Gizoni, 502 U.S. 81 (1991)). The LHWCA and the Jones Act in theory are mutually exclusive, so that a "seaman" under the Jones Act is the same as a "master or member of a crew" of any vessel. McDermott Int'l v. Wilander, 498 U.S. 337, 26 BRBS 75 (CRT) (1991); Swanson v. Marra Bros., Inc., 328 U.S. 1, 7 (1946); Pizzitolo v. Electro-Coal Transfer Corp., 812 F.2d 977 (5th Cir. 1987), cert. denied, 484 U.S. 1059 (1988)
In Chandris, Inc. v. Latsis, 115 S.Ct. 2172 (1995), the Court recently revised the test for determining whether an employee is a member of the crew (seaman). The new test is a refinement of the land-based/sea-based dichotomy of workers noted by the Court in McDermott International, Inc. v. Wilander, 498 U.S. 337 (1991). The new test states that in order to be classified as a seaman, the following criteria must be met:
[ED. NOTE: Naturally subsumed within this test is the requirement that there must be a "vessel". For a definition of "vessel" see Topic 1.4.3. Also note that in Papai the Court has now defined what as "identifiable group of vessels" or "fleet" actually is. See infra at Topic 1.4.3]
A variation of this test was first developed by the Fifth Circuit in Offshore Co. v. Robison, 266 F.2d 769 (5th Cir. 1959), and refined in McDermott, 679 F.2d 452. In Wilander, the Supreme Court adopted this test as defined in McDermott, and recently, and most significantly, this test was revised by the Court in Chandris.
In Wilander, the Court addressed the type of activities that a seaman must perform and held that under the Jones Act, a seaman's job need not be limited to transportation related functions that directly aid in the vessels navigation. The Court determined that, although "it is not necessary that a seaman aid in navigation or contribute to the transportation of the vessel, a seaman must be doing the ship's work." 498 U.S. at 355. The Court concluded that under both the Jones Act and general maritime law "all those with that peculiar relationship to the vessel' are covered under the Jones Act, regardless of the particular job they perform." Id. at 354.
Specifically, the Wilander Court stated:
498 U.S. at 354, 111 S. Ct. at 817 (emphasis added).
In Chandris, the Court clarified what employment-related connection to a vessel in navigation is necessary for a maritime worker to qualify as a seaman under the Jones Act. The Chandris Court determined what relationship a worker must have to the vessel in navigation regardless of the specific tasks the worker undertakes, in order to obtain seaman status.
The Chandris Court articulated two basic principles of seaman status:
Thus, the Court, in Chandris, developed a status-based standard, that although it determines Jones Act coverage without regard to the precise activity in which the worker is engaged at the time of the injury, nevertheless best furthers the Jones Act's remedial goals. As set out above, to qualify as a seaman under the Jones Act (and therefore be excluded under the LHWCA), the worker's duties must contribute to the function of the vessel or to the accomplishment of its mission, and the worker must have a connection to a vessel in navigation (or an identifiable group of vessels) that is substantial in both duration and nature. 115 S.Ct. 2172. Thus, the employment connected to a vessel in navigation must be substantial both in terms of the nature of the work done and in terms of duration for there to be seaman status.
Importantly for LHWCA purposes, the Chandris Court noted the Fifth Circuit's "temporal gloss" of Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067 (5th Cir. 1986) (en banc), wherein a worker whose regular duties require him to divide his time between vessel and land, had to have his crew status determined in the context of his entire employment with his current employer. Citing the rule of thumb used by the Fifth Circuit in ordinary cases, the Court stated: "a worker who spends less than about 30 percent of his time in the service of a vessel in navigation" is not performing a substantial portion of work "on board" and the worker is not a crew member. 115 S.Ct. at 2192; see Barrett, 781 F.2d at 1075; see also id. at 1077 (Rubin, J., dissenting).
However, the Court cautioned that "seaman status is not merely a temporal concept" but rather is one element to be considered. Chandris, at ___U.S.___, 115 S.Ct. at 2191. The Ninth Circuit has noted that "the duration of time aboard a vessel is not enough, standing alone, to determine status as a seaman under the Jones Act." Boy Scouts of America v. Graham, 76 F.3d 1045 (9th Cir. 1996); See also Heise v. Fishing Co. Of Alaska, Inc., 79 F.3d 903 (9th Cir. 1996) for a Ninth Circuit application of the Chandris formula. See also O'Hara v. Weeks Marine, Inc. 928 F.Supp. 257 (E.D.N.Y. 1996) for an application of Chandris by a district court in the First Circuit. The Chandris Court declared that "[t]he 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." 115 S.Ct. at 2191.
In Wilson v. Crowley Maritime, 30 BRBS 199 (1996), the Board followed Chandris in holding that although a claimant spent 75% of his time aboard employer's barges, as a "cargo operations manager," claimant was not a seaman since most of his duties consisted of preparing for and supervising the loading of employer's dock-tied barges and claimant's duties upon completion of this task. Thus, the Board found that claimant's duties with employer were those traditionally associated with longshore work. Moreover, claimant was a land-based employee in that he lived on shore, had a shore-based office, and except for a few occasions, in emergency situations, never went to sea with the barges.
See also Smith v. Alter Barge Line, Inc., 30 BRBS 87 (1996) (decedent who worked as a welder repairing barges and as a mate trainee/deckhand on tugboat was covered under LHWCA because most of his work was as a welder).
The Court also rejected the "voyage test" (anyone working on board a vessel for the duration of a "voyage" in furtherance of the vessel's mission has the necessary employment-related connection to qualify as a seaman). The voyage test would have allowed the worker's activities at the time of the injury to be controlling. This voyage test relied on previous Court statements that the Jones Act was designed to protect maritime workers who are exposed to the "special hazards" and "particular perils" characteristics of work on vessels at sea. 115 S. Ct. at 219. ("Seaman status is not coextensive with seaman's risks." Id.)
Chandris approved the "fleet seaman doctrine" under which a worker who works on several vessels is a seaman only if he works on a fleet of vessels under common control. See e.g., Reeves v. Mobile Dredging & Pumping Co., Inc., 26 F.3d 1247, 1995 AMC 352 (3d Cir. 1994); Vowell v. G & H Towing Co., 870 F.Supp. 162 (S.D.Tex. 1994); Harbor Tug and Barge Co. v. Papai, 117 S.Ct. 1535 (1997), 1997 U.S. LEXIS 2846 (refined fleet doctrine). Prior employments with independent employers can not be considered in making the seaman status inquiry since that would undermine "the interest of employers and maritime workers alike in being able to predict who will be covered by the Jones Act...before a particular work day begins." Papai, 117 S.Ct. 1535. The Court went on to state that there would be no principled basis for limiting which prior employments are considered for determining seaman status. It does not matter that all of the worker's employment was through the same hiring hall or that the union agreement classified claimant as a deckhand. For more on fleeting doctrine, see Topic 1.4.3.
In Anders v. Ormet Corp., 874 F.Supp. 738 (M.D.La. 1994), a worker who accepted compensation benefits after an Administrative Law Judge found him not to be a seaman was collaterally estopped from claiming seaman status. But see Figueroa v. Campbell Indus., 45 F.3d 311 (9th Cir. 1995) (example of dual coverage where court found that while the LHWCA is the exclusive remedy for a covered "employee," "employee" does not include "crew member/master," and therefore employee was allowed to recover both LHWCA benefits and pain/suffering under the Jones Act because a substantial portion of employment occurred on the tug).
[ED. NOTE: One must keep in mind that while there must be a determination that there is a "vessel" for purposes of the Jones Act (and therefore, the exclusion of the right to benefit under the LHWCA), the lack of vessel status does not necessarily preclude LHWCA coverage.]
As defined by Congress, a "vessel" is "every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water." 1 U.S.C. § 3. See also 46 U.S.C. § 801. Obviously, this is a very broad definition. In fact, under a literal interpretation, any floating structure that could be used for transportation is a vessel. See John T. Lozier, Comment, 20 Tul.Mar.L.J. 139, 143 (1995). Thus, a barge with no mobility of its own, would fit the description. (See, however, the discussion as to whether a barge's transportation function is primary or has become incidental to its use as a work platform, infra.)
Congress may have attempted to narrow the definition of "vessel" in the Shipping Act of 1916, where "vessel" is defined as "all water craft and other artificial contrivances of whatever description and at whatever stage of construction, whether on the stocks or launched, which are used or capable of being or are intended to be used as a means of transportation on water." 46 U.S.C. §§ 801 (1988). Unfortunately, this definition only adds to the variety of other ambiguous definitions.
The statutory definition of vessel that applies to the LHWCA is equally unhelpful. As amended in 1972, Section 2(21) of the LHWCA defines "vessel" as:
33 U.S.C. § 902(21).
The jurisprudential definition of "vessel" has come to include, but not be limited to ships, barges, drilling barges, jack-up rigs, submersibles, and semi-submersibles. Note, these last three are not fixed platforms, rather they are floating structures, or structures capable of flotation.
[ED. NOTE: Fixed platforms will be addressed infra.]
A submersible rig has hulls upon which it floats while being towed to the work site. At the site, the hulls are flooded and "submerged" until they come to rest on the bottom. The drilling deck (sometimes called the Texas deck) is built on long steel columns that extend upward from the hulls. Hence, the drilling deck is well above the water. Like jack-up rigs, submersibles are limited to relatively shallow water.
A jack-up is constructed so that it floats with its "legs" up when being moved to the work site. Once at the site, the legs are cranked down to the ocean floor. Then the hull is "jacked up" on the same legs allowing the work area to be raised about 50 feet above the water level. Jack-up rigs are limited to drilling in water depths of up to 350 feet.
A drill barge or drill ship is a barge with a drilling derrick that is towed to location and anchored in place. It is essentially shaped like any ocean-going ship. However, drilling equipment (and other modifications) make a drill ship distinctive. Drill ships are the most mobile of rigs and are often used to drill discover, or wildcat, wells in deep, remote offshore waters.
A semi-submersible is similar to a submersible in that it has two hulls upon which the rig floats as it is being towed to the work site. As semi-submersible is a cross between a submersible and a barge. Once at the site, the hulls are designed so that, when flooded, they do not settle on the bottom. Rather, they submerge about 50 feet after which special anchors are lowered to complete the mooring of the rig. In reality, a semi-submersible floats but not on the water's surface.
[ED. NOTE: For illustrations and a discussion of oil-well drilling, including detailed explanations of the drilling rig and its components, see A Primer of Oil-Well Drilling, by Ron Baker (Petroleum Ext. Service: The Univ. Of Texas at Austin, Fourth Ed. 1979).]
The basic criterion used to establish whether a structure is a vessel is "the purpose for which [it] is constructed and the business in which it is engaged." The Robert W. Parsons, 191 U.S. 17, 30, 24 S.Ct. 8, 12 (1903). "The fact that it floats on the water does not make it a ship or a vessel " Cope v. Vallette Dry-Dock Co., 119 U.S. 625, 627 (1887). The business or employment of a watercraft is determinative, rather than its size, form, capacity, or means of propulsion. See 119 U.S. at 629-30.
"Fleet of vessels"
Attachment to a fleet of vessels may be substituted for attachment to a single vessel. Langston v. Schlumberger Offshore Servs., 809 F.2d 1192 (5th Cir. 1987). Working aboard 15 different vessels owned by 10 different owners, however, does not constitute working on vessels that were part of a "fleet." Id. In Harbor Tub and Barge Co. V. Papai, 117 S.Ct. 1535 (1997), the Court narrowed the fleet concept it had developed in Chandris, Inc. v. Latsis, 5115 U.S. 347, 115 S.Ct. 2172 (1995)(substantial connection or control is an important part of the seaman status test). In Papai, the Court further stated that there must be common ownership of the vessels for it to be considered a fleet. The Court explained that considering prior employments with independent employers in making the seaman status inquiry would undermine "the interest of employers and maritime workers alike in being able to predict who will be covered by the Jones Act...before a particular work day begins." 117 S.Ct. 1535 (1997). The Court went on to state that there would be no principled basis for limiting which prior employments are considered for determining seaman status. The use of the same union hiring hall which draws from the same pool of employees is not sufficient. Neither is a union agreement classifying the worker as a deckhand.
Thus the Supreme Court reversed the Ninth Circuit. The Ninth Circuit had held that "if the type of work a maritime worker customarily performs would entitle him to seaman status if performed for a single employer, the worker should not be deprived of that status simply because the industry operates under a daily assignment rather than a permanent employment system." Harbor Tug and Barge Co. v. Papai, 67 F.3d 203, 206 (1995). The Ninth Circuit also had held that because the worker had worked for Harbor Tug on twelve occasions during the 2.5 months before the injury, this circumstance "may in itself provide a sufficient connection" to Harbor Tug's vessels to establish seaman status.
[ED. NOTE: While the Court in Papai could have simply put a gloss on Chandris' requirement that an employee show "a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both duration and its nature," Chandris, at 368, it chose instead to further differentiate between land-based and sea-based workers by inquiry as to whether the employee's duties take him to sea: "This will give substance to the inquiry both as to the duration and nature and the employee's connection to the vessel and be helpful in distinguishing land-based from sea-based employees." Papai, 117 S.Ct 1535 (1997). The Court could simply have held that there was a "controlling entity" (i.e. that employers who used the hiring hall) in order to have had this employee be successful under the seaman status inquiry. Instead, the Court used this case to continue engineering a major realignment of LHWCA(land based)/ Jones Act (sea based) maritime law.]
The Court held that:
117 S.Ct 1535 (1997).
However a strong dissent by Justice Stevens, with whom Justices Ginsberg and Berger joined, noted that if all of the deckhand's work had been preformed by the worker for one towing company, there "would be no doubt about [his] status as a seaman." 117 S.Ct 1535 (1997). As the dissent stated, "Today, the majority apparently concludes that an employee is not necessarily protected by the Jones Act even if he was injured aboard a vessel in navigation and his work over the proceeding two years was primarily seaman's work." 117 S.CT 1535 (1997)
In Robison, the Fifth Circuit had listed as an alternative requirement of seaman status "substantial work" instead of being permanently assigned to a vessel. Barrett v. Chevron U.S.A., Inc., 781 F.2d 1067 (5th Cir. 1986) (en banc), went a step further, focusing on the duration of an employee's assignment in relation to his entire employment. See also Reeves v. Mobile Dredging & Pumping Co., 26 F.3d 1247 (3rd Cir. 1994); Johnson v. Continental Grain Co., 58 F.3d 1232 (8th Cir. 1995); but see Fisher v. Nichols, 81 F.3d 319, 323 (2nd Cir. 1996)(rejecting common ownership or control requirement).
[ED. NOTE: There are possibly two instances when a maritime worker might not be attached to either a vessel or technically to a fleet of vessels and yet may still have seaman status under the Jones Act. However, the reader is cautioned that while Papai did not mention "anchor handlers or "river pilots" the same Papai fleet doctrine may, and in the case of pilots, probably does now apply to issues of status involving these types of work (remember Bach II). The result of applying the Papai test is not a per se exclusion of pilots from Jones Act coverage. Blue water pilots do sleep on there boats for days or weeks at a time, and thus are more likely to be found as passing the seaman's status test. This is differentiated from the brown water pilots that tend to sleep ashore at night. The facts must be studied closely in order to determine the strength of the connection to the vessel. Thus the following discussion should be viewed cautiously.]
In Bertrand v. International Mooring & Marine, 700 F.2d 240 (5th Cir. 1983), cert. denied, 464 U.S. 1069 (1984), anchor handlers who spent all of their time aboard vessels "used" by their employer, met the fleet general exception and would be covered under the Jones Act. This case should be noted with care, however, since it is probably limited to a particular fact situation.
In Evans v. United Arab Shipping Co., 767 F. Supp. 1284 (D.N.J. 1991), the court found that, based on Wilander, a river pilot is a Jones Act seaman because at the time the Jones Act was passed prevailing general maritime law categorized a river pilot as a seaman. The district court concluded that if a plaintiff's position is indispensable to a vessel even though there is no permanency, the permanency can be overlooked if the person is performing an essential navigation function. The district court concentrated on the river pilot's essential navigational function and substitution for the vessel's captain/master.
In Harwood v. Partredereit, 944 F.2d 1187 (4th Cir. 1991), cert. denied, 112 S. Ct. 1265 (1992), however, the Fourth Circuit found the river pilot not to be a Jones Act seaman, but rather, covered under the LHWCA. The court found that permanent attachment to a vessel or fleet of vessels was still a requirement under Wilander. The strong and well-written dissent in this case is noteworthy and makes reference to the historic position of the United States Employment Compensation Commission (the federal agency charged with compensation matters when the LHWCA was passed). Pre-1972 amendment jurisprudence held that pilots were not covered by the LHWCA.
In Bach v. Trident Steamship Co., 920 F.2d 322 (5th Cir.), vacated, 111 S. Ct. 2253 (1991), reinstated on recon., 947 F.2d 1290, cert. denied, 112 S. Ct. 1996 (1992), the Fifth Circuit held that a river pilot is not a Jones Act seaman because he is not permanently attached to a vessel or fleet of vessels. The Supreme Court vacated and remanded Bach for further consideration in light of Wilander, 111 S. Ct. 2253 (1991) (issue of river pilot raised but not decided). The Fifth Circuit on remand again found that a river pilot is not a seaman stating: "We did not base our decision on Bach's seaman status on the relationship of his duties to navigation. Indeed, this issue was never in doubt. Instead, we concluded that Bach was not a seaman because he was not permanently assigned to any particular vessel or fleet of vessels." 947 F.2d at 1291.
Similarly, in Stoller v. Evergreen, (N.D. Calif. 1992) (unpublished), the northern district of California held that a pilot should not be a Jones Act seaman because no employment relationship existed with the vessel.
[ED. NOTE: Thus, both the Fourth and the Fifth Circuits, have held that a river pilot is not a Jones Act seaman. Since a river pilot performs his duties on navigable water aiding in navigation and maritime commerce, he should be found to be covered under the LHWCA. Ironically, a river pilot possibly may be entitled to an unseaworthiness remedy under the general maritime law as a "Sieracki Seaman." See Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946) (longshoreman injured while working aboard a ship was classified as a "seaman" and therefore entitled to sue under the unseaworthiness doctrine). This "Sieracki Seaman" classification was theoretically supposed to have ended with the enactment of the 1972 amendments to the LHWCA. In return for giving up general maritime law/unseaworthiness remedies for recovery, longshore and harbor workers were to benefit from the landward extension of coverage under the amended LHWCA.]
In the Fifth Circuit, the Sieracki concept (see note above) is not completely obliterated. See Cormier v. Oceanic Contractors, 696 F.2d 1112 (5th Cir.), cert. denied, 464 U.S. 821 (1983); Aparicio v. Swan Lake, 643 F.2d 1109 (5th Cir. 1981). In Smith v. Harbor Towing & Fleeting, 910 F.2d 312 (5th Cir. 1990), cert. denied, 499 U.S. 906 (1991), however, the Fifth Circuit held that the remedy of unseaworthiness was available only to seamen or members of the crew of a vessel. But see: Blancq v. Hapag-Lloyd, 1997 WL 732421 (E.D.La.); Laakso v. Mitsui & Co. U.S.A., Inc., 1989 WL 149186 at *8-*9 (Dec. 6, 1989 E.D.La)(unpublished but still has precedential value under 5th Circuit Local Rules); Clark v. Solomon Navigation, Ltd., 631 F.Supp. 1275 (S.D.N.Y. 1986).
The Third, Fourth, and Ninth Circuits have held to the contrary. (Remedy of unseaworthiness is available to non-seamen.) Normile v. Maritime Co. of Philippines, 643 F.2d 1380 (9th Cir. 1981); Lynn v. Heyl & Patterson, Inc., 636 F.2d 1209 (3d Cir. 1980), United States Lines v. United States, 593 F.2d 570 (4th Cir. 1979).
The Board has held that a claimant is not a Jones Act seaman where the worker's assignment to a vessel was random, sporadic, and transitory; and where the claimant worked not only on the employer's 20 mooring launches, but also aboard tugboats and ocean-going vessels which employer had contracted to moor. Griffin v. T.Smith & Son, Inc., 25 BRBS 196 (1992). The Board reasoned that the claimant was never assigned to nor did he perform a substantial part of his work aboard any vessel; and claimant lacked any permanent connection with a fleet of vessels. Therefore, the claimant was deemed to be a linesman and boat operator who moored vessels at docks as a linesman and who drove boats around ships as a boat operator.
Note also that the vessel must be in navigation, or capable of being in navigation, in order to be considered a vessel under the LHWCA. (This should not be confused with the status of a vessel under construction where a ship fitter is clearly covered under the LHWCA and he cannot possibly be classified as a seaman.)
The "vessel in navigation" element does not require the vessel to have been in actual operation at the moment of the injury or death in question. McDermott, Inc. v. Boudreaux, 679 F.2d 452 (5th Cir. 1982). A vessel is "in navigation," although moored to a pier, in a repair yard for periodic repairs or while temporarily attached to an object. Griffith v. Wheeling-Pittsburgh Steel Corp., 521 F.2d 31, 37 (3d Cir. 1975), cert. denied, 423 U.S. 1054 (1976) (a non-motive barge utilized on the river to transfer coal from one area to another is considered to be a vessel in navigation for purposes of the Jones Act); Gallop v. Pittsburgh Sand & Gravel, 696 F. Supp. 1061 (W.D. Pa. 1988) (dredging platform operating in the river is a vessel in navigation for purposes of seaman status under the Jones Act).
A fixed platform is generally constructed as a semi-permanent or permanent structure. Pilings are first driven deep into the seabed and the platform is floated out and either sunk in place and permanently secured or constructed on the site. The process of securing a fixed platform is similar to constructing a building on land. Moving a fixed platform requires dismantling and reconstruction at another location. See e.g., Rhode v. Southeastern Drilling Co., Inc., 667 F.2d 1215 (5th Cir. 1928).
A fixed platform is not a vessel. In Rodrique v. Aetna Casualty & Surety Co., 395 U.S. 353, 89 S.Ct. 1835 (1969), the Supreme Court interpreted Section 1333(a)(2)(A) of the Lands Act (43 U.S.C. § 1333(a)(2)(A)) to "deliberately eschew the application of admiralty principles" to incidents occurring on fixed platforms. The Court found that admiralty "no more applies to these accidents than it would to accidents occurring in an upland federal enclave or on a natural island " 395 U.S. at 366, 89 S.Ct. at 1842. Following Rodrique, courts have regarded fixed platforms as "islands" or extensions of land for admiralty jurisdiction purposes. See e.g. Ellison v. Conoco, Inc., 950 F.2d 1196 (5th Cir. 1992); Ladue v. Chevron U.S.A., Inc., 733 F.Supp. 1075 (E.D.La. 1990), aff'd 920 F.2d 272 (5th Cir. 1991); Smith v. Pan Air Corp., 684 F.2d 1102 (5th Cir. 1982).
In cases decided by the Fifth Circuit dealing with the "member of a crew" (seaman) exclusion, the court has held that an employee who worked on a fixed platform on the Outer Continental Shelf is not a seaman under the Jones Act because a fixed platform is not a vessel in navigation; thus, the claimant's exclusive remedy was under the LHWCA as extended by the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1333 et. seq. (Since the OCSLA incorporates the remedies and not the criteria of the LHWCA, a covered employee under the OCSLA need not be engaged in maritime employment as is required under the LHWCA.) Stansbury v. Sikorski Aircraft, 681 F.2d 948 (5th Cir. 1982), cert. denied, 459 U.S. 1089 (1982).
Floating dry docks
Whether or not a structure is a vessel frequently arises with regard to a floating structure or platform that has a specialized function in a port, harbor, or shipyard. The paradigm case is the floating dry dock, which is used for the repair and construction of boats, ships, and other craft. While in use, such structures are not in navigation and have virtual permanent attachment to the shore. Based upon a strict interpretation of the purpose test as set out in Cope v. Vallette Dry-Dock Co., 119 U.S. 625, 627 (1887), these structures are normally held not to be vessels. 119 U.S. 625. See also Keller v. Dravo Corp., 441 F.2d 1239, 1244 (5th Cir. 1971), cert. denied, 404 U.S. 1017 (1972) (As a matter of law, a floating dry dock is not a vessel when it is moored and in use as a dry dock). Recently, however, drydocks have been built to be mobile and, often, they are commonly towed long distances. Consequently, a drydock that is mobile and "committed to navigation" may be a vessel even where in mid-voyage, it is temporarily harbored in a fixed location. J.M.L. Trading Corp. v. Marine Salvage Corp., 501 F. Supp. 323 (E.D.N.Y. 1980); see also United States v. Moran Towing & Transp. Co., 374 F.2d 656 (4th Cir. 1967), vacated on other grounds 389 U.S. 575 (1968), on remand 302 F.Supp. 600 (D.Md. 1969)
It is important to note that Section 903 of the LHWCA specifically enumerates that a worker killed or injured aboard a dry dock is entitled to compensation.
Floating work platforms, barges, rigs, and rafts
In Herb's Welding v. Gray, 470 U.S. 414 (1985), the Court stated:
Certain structures which are used for the exploration and production of oil and gas have produced a great amount of litigation over vessel status. In Offshore Co. V. Robison, 266 F.2d 769 (5th Cir. 1959), the court held that a floating submersible jack-up oil rig (see supra for definition) is a vessel since its inherent characteristic is the ability to be towed from place to place. Id. Since Robison, many structures designed to be moved on a regular basis have been held to be vessels. See Producers Drilling Co. V. Gray, 361 F.2d (5th Cir. 1966) (submersible drilling barge designed to transport drilling equipment, submerge for drilling operation, and refloat for movement to new site, is a vessel); Hicks v. Ocean Drilling & Exploration Co., 512 F.2d 817 (5th Cir. 1975) (submersible oil storage facility is a vessel); Parks v. Dowell Div. of Dow Chem. Corp., 712 F.2d 154 (5th Cir. 1983) (drilling tender, capable of transporting men and equipment, which is anchored for extended periods of time to fixed offshore platform, is a vessel).
A "movable drilling unit" which had been moved only twice in 20 years and was attached to the bottom by pilings driven into the sea bed, though designed for navigation, was not "in navigation" at the time of injury and not intended to be moved and thus, was not a vessel. Hemba v. Freeport McMoran Energy Partners, 811 F.2d 276 (5th Cir. 1987); Marathon Pipe Line v. Drilling Rig Rowan/Odessa, 761 F.2d 229, 233 (5th Cir. 1985) (floating, movable jack-up drilling rig is a vessel for purposes of admiralty law); Lewis v. Keyes 303, Inc., 834 F. Supp. 191 (S.D. Tex. 1993) (floating, movable jack-up drilling rig).
However, several cases illustrate that floating structures are not always what they seem to be, or what they were constructed to be. Although these cases deal primarily with barges that have become work platforms, a case dealing with a small raft has provided the basis for a loose test to determine whether or not a platform is a "vessel." Bernard v. Binnings Constr. Co., 741 F.2d 824 (5th Cir. 1984).
Floating work platforms which were determined not to be vessels had at least some of the following criteria in common:
This test is a composite based principally on Bernard, 741 F.2d 824, and the following noted cases. Bernard specifically set out the first three criteria. See 741 F.2d at 831.
See also Green v. C.J. Langenfelder & Sone, Inc.,30 BRBS 77 (May 9, 1996) (dredge, with no engine or navigational capabilities except for pull lines, which was used to excavate oysters and load them onto barges, and moored to virtually the same position during each 6-month work cycle held not to be a vessel).
See also Burchett v. Cargill, Inc., 48 F.3d 173 (5th Cir. 1995) (midstream bulk cargo transfer barge which was constructed/used primarily as work platform, which had been moored for ten years, and whose transportation function was incidental to its primary purpose, was not a vessel); Sharp v. Wausau Ins. Cos., 917 F.2d 885 (5th Cir. 1990), amended sub nom. Sharp v. Johnson Bros. Corp., 923 F.2d 46 (5th Cir. 1991) (four barge assemblies, including two spud barges and two flat deck barges used in connection with rebuilding a bridge and which were frequently moved during the work could be vessels--case remanded to trial court for a jury determination); Ellender v. Kiva Constr. & Eng'g, 909 F.2d 803 (5th Cir. 1990) (general purpose and spud barges assembled solely to build a platform were transported to a job until its completion; a crane temporarily positioned on the spud barge is not equivalent to a derrick barge); Menard v. Brownie Drilling Co., 1991 U.S. Dist. LEXIS 13531 (E.D. La. 1991) (workover rig placed on barge which was lowered and sunk until the job was finished, then floated to a new location was not a barge).
See also Gremillion v. Gulf Coast Catering Co., 904 F.2d 290 (5th Cir. 1990) (a quarter boat barge specially equipped with living quarters/work area brought to a shore, and which was spudded down and moored, was not a vessel); Ducrepont v. Baton Rouge Marine Enters., 877 F.2d 393 (5th Cir. 1989) (cargo barge converted to a stationary work platform by permanently mooring to shore and only moved short distances due to water level changes was not a vessel); Davis v. Cargill, Inc., 808 F.2d 361 (5th Cir. 1986) (cargo barge converted to a permanent painting and sandblasting work platform anchored to the river bed and permanently attached to land was not a vessel though moved to accommodate changing river tides).
See also Waguespack v. Aetna Life & Casualty Co., 795 F.2d 523 (5th Cir. 1986), cert. denied, 479 U.S. 1094 (1987) (small floating work platform permanently located in a slip and used to facilitate removal of grain barge covers is not a vessel); Blanchard v. Engine & Gas Compressor Servs., 575 F.2d 1140 (5th Cir. 1978), question certified, 590 F.2d 594 (5th Cir. 1979) (barges sunk in marsh to use as compressor station and not moved in 15 years, with no intent to move are not vessels); Cook v. Belden Concrete Prods., 472 F.2d 999 (5th Cir.), cert. denied, 414 U.S. 868 (1973) (barge which became a construction platform on which concrete barges were built, served as a stationary platform and was not a vessel).
See also Ducote v. Keeler & Co., 953 F.2d 1000 (5th Cir. 1992) (for purposes of determining whether floating structure is a "vessel," one objective factor used to determine whether the primary purpose of the structure is that it is used for transportation, is raked bow. Although the mere presence of raked bow does not mean that the floating structure is a "vessel," raked bow is a piece of evidence from which conflicting inferences could be drawn).
But see Tonnesen v. Yonkers Contracting Co., Inc., 82 F.3d 30 (2d Cir. 1996) (Second Circuit disagreed with regard to the first Bernard factor (namely, the Fifth Circuit's focus on the original purpose of the structure), finding that the first prong of the test should focus on the present purpose of the floating structure).
In this regard, it is important to note that a floating dry dock may serve as a floating platform. See e.g., Bernard, 741 F.2d at 832. Tonnesen is also noteworthy for the fact that the Second Circuit reversed the district court's summary judgement on seaman status, remanding the matter for further fact-finding as to whether the floating platform was "a vessel in navigation." The Second Circuit noted several Fifth Circuit cases dealing with the factual determination necessary to determine vessel status. The circuit court determined that factual issues prevented summery judgement.
Construction and Repairs
A ship under construction on land, not on or in navigable waters and incapable of floating, is not a vessel. Richendollar v. Diamond M Drilling Co., 819 F.2d 124 (5th Cir.), cert. denied, 484 U.S. 944 (1987). (Note, however, that a person working on such a vessel would be covered under the LHWCA as a shipbuilder.)
A hull under construction, floating on navigable waters, but not itself navigable, which did not yet have navigation equipment installed and had not undergone dock and sea trials, and had no crew assigned to it, did not qualify as a "vessel." Rosetti v. Avondale Shipyards, 821 F.2d 1083 (5th Cir. 1987), cert. denied, 484 U.S. 1008 (1988).
A vessel being repaired on land does not necessarily lose its vessel status. In Chandris, Inc. v. Latsis, the Court held that a vessel does not cease to be "in navigation" merely because it is taken to a dry dock or shipyard to undergo repairs. __U.S.__, 115 S.Ct. 2172, 2193 (1995). The question of whether repairs are sufficiently significant so that the vessel can no longer be considered to be in navigation is a question of fact for the jury to decide. Id.
< One must keep in mind that Section 903 provides compensation to workers who die or are injured while repairing or building a vessel. The above cases are included in the materials to remind the reader that the lack of a vessel means there is no Jones Act coverage, not that there is no LHWCA coverage.
Helicopters, Seaplanes, etc.
An amphibious military vehicle known as a LARC has been found to be a vessel under the LHWCA. Stevens v. Metal Trades, 22 BRBS 319 (1989).
Aircraft, helicopters, and even seaplanes are ordinarily not vessels, since their purpose is to fly through the air, not to navigate on water. See Smith v. Pan Air Corp., 684 F.2d 1102 (5th Cir. 1982); Barger v. Petroleum Helicopters, 692 F.2d 337 (5th Cir. 1982), cert. denied, 461 U.S. 958 (1983); Herbert v. Air Logistics, Inc., 720 F.2d 853 (5th Cir. 1983).
A seaplane that is navigating on the water may be a vessel, however. Reeves v. Offshore Logistics, Inc., 720 F.2d 835 (5th Cir. 1983).
Airplane/helicopter pilots are not excluded from coverage under the LHWCA on the grounds that they are members of crews. A pilot traveling over water, however, is not automatically covered under the LHWCA as a maritime employee.
In Ward v. Director, OWCP, 684 F.2d 1114, 15 BRBS 7 (CRT) (5th Cir. 1982), rev'g 14 BRBS 74 (1981), cert. denied, 459 U.S. 1170 (1983), the court cited Smith, 648 F.2d 1102, reiterating that a plane is not a vessel under the Jones Act and, therefore, that the airplane pilot, a fish spotter, was not excluded from LHWCA coverage as a member of a crew. The court found coverage because the claimant was injured on actual navigable waters. Importantly, the fish spotter was found to be engaged in maritime employment over navigable waters. See also Barnard v. Zapata Haynie Corp., 23 BRBS 267 (1990).
A submerged cleaning and maintenance platform known as a SCAMP has been found to be a vessel. Wenzel v. Seaward Marine Services, Inc., 709 F.2d 1326 (9th Cir. 1983)(Relying on the "Bullis test," Bullis v. Twentieth Century Fox Film Corp., 474 F.2d 392, 393 (9th Cir. 1973) the Ninth Circuit found that a SCAMP - a saucer-shaped unit six feet in diameter and twenty inches deep, which traveled underwater along a ship's hull and could be operated manually by divers - was a vessel.) The Bullis test was reaffirmed by the Ninth Circuit in Gizoni v. Southwest Marine Inc., 909 F.2d 385 (9th Cir. 1990), aff'd, 502 U.S. 81, 112 S.Ct. 486 (1991).
It has been suggested that "three men in a tub would also fit within our definition [of vessel], and one probably could make a convincing case for Jonah inside whale." Burks v. American River Transp. Co., 679 F.2d 69, 75 (5th Cir. 1982).
220.127.116.11 Floating Dockside Casinos
[ED. NOTE: This newly developing area of potential coverage acutely focuses attention on the pre-existing problems of coverage under the LHWCA. As with typical coverage issue cases, a worker who is able to place himself within the jurisdiction of the Jones Act will, generally, recover the most. (As will be discussed below, securing Jones Act coverage for a casino worker thus far has been an unsurmountable hurdle.) If a Jones Act action in federal district court fails, the worker will next most likely benefit from coverage under the LHWCA as opposed to state compensation coverage This newly developing area of potential coverage acutely focuses attention on the pre-existing problems of coverage under the LHWCA. As with typical coverage issue cases, a worker who is able to place himself within the jurisdiction of the Jones Act will, generally, recover the most. (As will be discussed below, securing Jones Act coverage for a casino worker thus far has been an unsurmountable hurdle.) If a Jones Act action in federal district court fails, the worker will next most likely benefit from coverage under the LHWCA as opposed to state compensation coverage.]
While the LHWCA specifically denies coverage to workers employed by a "recreational operation" under section 902, there remains no appellate case law defining this phrase. (See infra for discussion on whether an employee of a dockside casino is entitled to LHWCA coverage). Nonetheless, a gambling casino seemingly falls within this exclusion. A determination of whether a floating gambling casino is a vessel necessarily follows.
The "recreational operation" exclusion to coverage, Section 2(3)(B), is without definition, though it is grouped with several other items which hint at its possible parameters. It is noteworthy that at the time of enactment of this exclusion, there were no floating gaming/gambling casinos and, therefore, no direct Congressional Record comments on point.
In consolidated appeal of Pavone v. Mississippi Riverboat Amusement Corp., 53 F.3d 560 (5th Cir. 1995); and Ketzel v. Mississippi Riverboat Amusement, Ltd., 867 F. Supp. 1260 (S.D. Miss. 1994); a bartender and a cocktail waitress (respectively) on the Biloxi Belle, a floating dockside casino, sued under the Jones Act and general maritime law to recover for injuries sustained in the course of their employment. The Biloxi Belle was originally constructed on a barge for the purpose of supporting a floating restaurant and bar in Corpus Christi, Texas. It was later moved to Arkansas Pass, Texan where it was moored for two and a half years before being re-outfitted as a dockside floating casino. The structure was then towed to Biloxi, Mississippi. There, the structure was indefinitely moored to shore by lines tied to sunken pylons that were filled with concrete. Its first level was connected to shore by steel ramps, its second level was joined to a shoreside building, and it was connected to shoreside utilities. It contained a faux pilot house and other purely visual effects including a nonfunctional paddle wheel turned by a small motor. The barge was documented by the United States Coast Guard and was towed to sheltered waters when Hurricane Andrew threatened on August 23, 1992. Pavone, 53 F.3d 560.
The issue presented to the Fifth Circuit in Pavone was whether the Biloxi Belle was a Jones Act vessel so that the plaintiffs could assert claims as Jones Act seaman:
Id. at 568.
After analyzing the withdrawn-from-navigation factors and the work platform attributes, and comparing the characteristics of the Biloxi Belle with the structures which have been held as a matter of law to be non-vessels, the Fifth Circuit concluded that "there can be little doubt that indefinitely moored, shore-side, floating casinos, such as the Biloxi Belle, must be added to that list." Id. at 570. Consequently, the court held that the Biloxi Belle was removed from navigation and was a work platform so that it did not qualify as a vessel. Id.
The weight of the trial court decisions also establish that a floating dockside casino is not a vessel. Ketzel v. Mississippi Riverboat Amusement, Ltd., 1995 AMC 1385, 867 F. Supp. 1260 (S.D. Miss. 1994) ("Similar to [a] floating factory' and [a] floating dance hall' , the Biloxi Belle is nothing but a floating casino' it is not a vessel'"); In Re: Biloxi Casino Belle Inc., White v. MRA, LTD, d/b/a/ Casino Belle of Tunica, 176 Bankr. 427 (1995).
[ED. NOTE: Ironically, the trial judge in Ketzel went further than simply making a determination that there was no "vessel" for the purposes of the Jones Act coverage. The trial judge improperly ruled on the question of LHWCA coverage: "Ketzel's complaint alleged, alternately, that her claim stated a cause of action under the [LHWCA]. However, Ketzel's job as a cocktail waitress is not included among the occupations intended by Congress to constitute Longshoremen.'" Ironically, the trial judge in Ketzel went further than simply making a determination that there was no "vessel" for the purposes of the Jones Act coverage. The trial judge improperly ruled on the question of LHWCA coverage: "Ketzel's complaint alleged, alternately, that her claim stated a cause of action under the [LHWCA]. However, Ketzel's job as a cocktail waitress is not included among the occupations intended by Congress to constitute Longshoremen.'" 867 F.Supp. 1260, 1262 n.2]
IIs There LHWCA Jurisdiction for Floating Dockside Casinos?
The OALJ has had several casino related cases. The fact patterns are very distinguishable. In two decisions, jurisdiction was not found, while in a third, jurisdiction was found. As will become apparent, the determination as to whether or not there is coverage will be significantly affected by: 1) what type of floating casino structure (vessel or non-vessel) is involved, and 2) what the worker's job is and who he/she works for.
Both Arnest v. Mississippi Riverboat, Ltd., 29 BRBS 423 (ALJ) (1995) and Peters v. Roy Anderson Building Corp., 29 BRBS 437 (ALJ) (1995), administratively affirmed by the Board, BRB No. 95-2098(unpublished), involved Mississippi dockside casinos. Under the Mississippi Gaming Statute, gambling can only take place on a "cruise vessel" on navigable waters. Mississippi casinos situated along the gulf of Mexico are more or less permanently moored barges (attached to pilings) with casino structures built above the structures. See Peters, 29 BRBS at 441. While Mississippi may consider these to be "cruise vessels," under present maritime law, these structures can not be considered vessels. Id. at 441-442 (citing Pavone v. Mississippi Riverboat Amusement, Ltd., 52 F.3d 560 (5th Cir. 1995)).
However, this does not automatically mean that there is no coverage under the LHWCA. Under the LHWCA, the term employee does not include "individuals employed by a recreational operation, restaurant, museum or retail outlet." §2(3)(B) and 20 CFR 701.301 (12)(i) and (iii). In Arnest, the administrative law judge held that, while the exclusion does not specifically list casinos, when one focuses on Congressional intent, one can readily conclude that this was the type of employment contemplated by Congress.
While there is some room for argument against this result, such an argument would be on a less than solid foundation. Arnest rests on a very solid footing for several reasons:
Thus, Arnest concludes that an employee of a casino working on a completed, attached, dockside casino is precluded from coverage by the 1984 Section 2(3)(B) amendments. In fact, the Congressional Record indicates that "the common thread running through the changes exempting certain activities...is probably the belief that these activities and occupations either lack a substantial nexus to maritime navigation and commerce or do not expose employees to the type of hazards normally associated with longshore, shipbuilding, and harbor work.."Cong. Rec. S11623 Sep. 20, 1984.
[ED. NOTE: On the other hand, using the Congressional Record cited in Arnest, one could argue that the purpose of the amendment excluding "recreational operations" was an attempt to exclude only purely water-related small enterprises such as water-paddle bicycles, etc. For example, one senator noted that the 1972 amendments had "pushed the Longshore Program beyond reasonable limits. Coverage is now extended to nearly a million workers who, during a workday may come near the water's edge. Even workers in the pleasure boating industry and in summer camps, marina, and maritime museum have been deemed to be covered by the Longshore Act." Cong. Rec. s11627 (Sep. 20, 1984).]
However, as Peters illustrates, a person working on a dockside casino helping to build and/or repair the casino, would not fall under this exclusion if such person is not employed by the recreational operation itself. Section 2(3)(B). [Also, it should be noted that 2(3)(F) can be interpreted as meaning, if the recreational vessel (casino) is less than 65 feet long, any individual, no matter who he/she is employed by, is not covered under the LHWCA, provided of course, they are covered under a state workers' compensation law. Section 2(3)(F) is written in such a way that one can arguably distinguish between recreational vessel under 65 feet and recreational vessel 65 feet and over.]
In Peters the claimant was employed as a laborer for the general contractor building the Grand Casino in Biloxi, Mississippi. Most of the labor she performed was in the casino structure being erected on the barges on the water although she sometimes worked on adjoining land projects. On the day of her injury she was assigned to a clean up crew and also assisted in setting up tables, booths and chairs in a restaurant area (involving bolting booths together and putting them in place.)
In Peters, the ALJ determined that there was coverage. Peters reaches the correct result in the Fifth Circuit. The lead Fifth Circuit case on "status"/"maritime employment" is Randall v. Chevron, 13 F. 3d. 888 (5th Cir. 1994). In Randall, the worker was injured (died) on navigable waters in the course of his employment, he was engaged in maritime employment. Under Randall, coverage is extended "to workers injured while transiently or fortuitously upon actual navigable waters..." The place of injury (death) satisfied "status." Similarly, in Eolema v. Bracken Const. Co., 95-LHL-898(unreported)(June 18, 1996)), the judge relied on Director, OWCP v. Perini North River Associates, 450 U.S. 297, 324 (1983)(worker injured upon navigable waters in the course of employment is covered under §2(3)).
[ED. NOTE: Note, however, that this is the Fifth Circuits' position. Randall took Perini a step further by including as covered those who are transient and injured while functioning over water. The Eleventh Circuit (in a non-casino case) is contra. Brockington v. Certified Elec., 903 F.2d 1523-28 (11th Cir. 1990), cert. denied, 498 U.S. 1026 (1991). For a though discussion of coverage while injured over water see Topic 1.6.1 infra.]
In Segrave v. M M C Mechanical Contractors, 29 BRBS 222 (ALJ) (1995) the claimant was a lead plumber working on the drainage system for a parking lot at the future cite of the Jubilee Casino in Mississippi at the time of the injury. He was in a ditch in the parking lot installing a pipe to a storm drain when injured, approximately 300 feet from the concrete pier. The administrative law judge held that this worker was clearly beyond the scope of Section 3(a) of the LHWCA, and was thus denied coverage under the LHWCA.
1.4.4 Attachment to Vessel
To be classified as a seaman, a worker must be permanently assigned to, or perform a substantial part of his work, on board a vessel(s). See, e.g., Barrett v. Chevron U.S.A., Inc., 781 F.2d 1067 (5th Cir. 1986) (en banc) (a welder's helper on a jack-up barge who performed most of his duties on stationary platforms (70 to 80 per cent) and who worked 14 days on/7 days off, was covered under the LHWCA, though he was injured on the barge, because he could not fit on the caisson in this particular instance.)
The court found that the circumstances of the claimant's injury could not be viewed in isolation but must be considered in relation to the welder's other duties. (Judge Rubin strongly dissented arguing that a moment-of-injury test should have been applied.) See also Miller v. Rowan Cos., 815 F.2d 1021 (5th Cir. 1987). See also the river pilot exception, infra, at "Fleet of Vessels," where an employee is deemed a seaman even though he is not assigned "permanently" to a vessel or fleet of vessels.
[ED. NOTE: It is unclear whether or not Robison's "substantial work" alternative has survived the Wilander "permanent assignment" criteria especially in lieu of Wilander's focus on "sea-based" workers (as opposed to land-based workers) and Wilander's "employment-related connection" to a vessel or fleet. But see Easley v. Southern Shipbuilding Corp., 965 F.2d 1 (5th Cir. 1992) ("substantial part of work on vessel" test used). One commentator has suggested first looking for permanent assignment, and if there is none, then applying Barrett, 781 at 1075 n.13, looking to the duration of the employee's assignment in the context of his "entire employment" with the current employer. Allbritton, "Seaman Status In