Jones Act Cases - Seaman Cases, Decisions & Opinions
Law Office of William H. Lawson
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Jones Act - Table of Contents
The Jones Act - Cases, Decisions and Opinions
II. PERSONS ENTITLED TO RECOVER - A. Seamen - 1. General Principles - b. Tests for Determining Status as Seaman
118. GenerallyIf individual is
to be member of crew, three requirements must be met: (1)
vessel must be in navigation; (2) there must more or less
permanent connection with vessel; and (3) worker must be
aboard primarily to aid in navigation. South Chicago Coal
& Dock Co. v Bassett (1940) 309 US 251, 84 L Ed 732, 60
S Ct 544 (diverged from Gianfala v Texas Co., 350 US 879,
100 L Ed 775, 76 S Ct 141, reh den 350 US 960, 100 L Ed 834,
76 S Ct 346 and (not followed Johnson v John F. Beasley
Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d
328, 105 S Ct 1180 and (disagreed with Barrett v Chevron,
U.S.A., Inc. (CA5 La) 781 F2d 1067))); Munguia v Chevron
Co., U.S.A. (1985, CA5 La) 768 F2d 649, reh den, en banc
(CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 580, 106 S
Ct 1272;.
In evaluating
whether worker is "seaman," court should not employ
"snapshot" test for seaman status, which test would inspect
situation as it exists only at instant of injury; rather,
court must look at more enduring relationship, employing
total circumstances of employment. Chandris, Inc. v Latsis
(1995, US) 132 L Ed 2d 314, 115 S Ct 2172, 95 CDOS 4499, 95
Daily Journal DAR 7769, 17 BNA OSHC 1257, 1995 AMC
1840.
With respect to
determining whether individual--who allegedly was injured
while assigned to paint housing structure of tug at
dockside, which assignment was obtained through union hiring
hall--was seaman under 46 USCS Appx section 688(a), question is
what connection individual had in actual fact to vessel
operations, not what agreement between employer and union
says. Harbor Tug & Barge Co. v Papai (1997, US) 137 L Ed
2d 800, 117 S Ct 1535, 97 CDOS 3507, 97 Daily Journal DAR
6021, 1997 AMC 1817, 10 FLW Fed S 433.
In order to pose jury question on issue of
seaman status, plaintiff must present evidence that (1)
injured workman was assigned permanently to vessel,
including special purpose structure not usually employed as
means of transport by water but designed to float on water,
or performed substantial part of his work on vessel, and (2)
capacity in which he was employed or duties which he
performed contributed to function of vessel, accomplishment
of its mission, or operation or welfare of vessel in terms
of maintenance during its movement or anchorage for future
trips. Offshore Co. v Robison (1959, CA5 La) 266 F2d 769, 75
ALR2d 1296 (disagreed with Johnson v John F. Beasley Constr.
Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328,
105 S Ct 1180); and (disagreed with Barrett v Chevron,
U.S.A., Inc. (CA5 La) 781 F2d 1067)); Balfer v Mayronne Mud
& Chemical Co. (1985, CA5 La) 762 F2d
432.
To be Jones Act seaman
entitled to sue for negligence, as well as breach of
warranty of seaworthiness, but not entitled to
longshoremen's compensation, vessel must be in navigation,
there must be more or less permanent connection with ship,
and worker must be aboard naturally and primarily as aid to
navigation. Salgado v M. J. Rudolph Corp. (1975, CA2 NY) 514
F2d 750.
Test to determine
seaman status asks whether (1) vessel is in navigation, (2)
employee has more or less permanent connection with vessel,
and (3) employee was on board vessel primarily in aid of
navigation. Petersen v Chesapeake & O. R. Co. (1986, CA6
Mich) 784 F2d 732. Rackus v Moore-McCormack Lines, Inc.
(1949, DC Pa) 85 F Supp 185; Baker v Pacific Far East Lines,
Inc. (1978, ND Cal) 451 F Supp 84; Wilkes v Mississippi
River Sand & Gravel Co. (1953, CA6 Tenn) 202 F2d 383,
cert den 346 US 817, 98 L Ed 344, 74 S Ct 29; Nelson v
Greene Line Steamers, Inc. (1958, CA6 Ky) 255 F2d 31, cert
den 358 US 867, 3 L Ed 2d 100, 79 S Ct 100; Bodden v
Coordinated Caribbean Transport, Inc. (1966, CA5 Fla) 369
F2d 273, 5 ALR Fed 668; Garcia v Queen, Ltd. (1973, CA5 Fla)
487 F2d 625 17 FR Serv 2d 1593; Noack v American S.S. Co.
(1974, CA6 Ohio) 491 F2d 937; Salgado v M. J. Rudolph Corp.
(1975, CA2 NY) 514 F2d 750; Lewis v Roland E. Trego &
Sons, Inc. (1973, DC Md) 359 F Supp 1130, affd in part and
vacated in part on other grounds (CA4 Md) 501 F2d 372;
Klarman v Santini (1973, DC Conn) 363 F Supp 910, affd (CA2
Conn) 503 F2d 29, cert den 419 US 1110, 42 L Ed 2d 807, 95 S
Ct 785; Griffith v Wheeling Pittsburgh Steel Corp. (1974, WD
Pa) 384 F Supp 230, revd on other grounds (CA3 Pa) 521 F2d
31, cert den 423 US 1054, 46 L Ed 2d 643, 96 S Ct 785;
Mietla v Warner Co. (1975, ED Pa) 387 F Supp 937; Garcia v
Universal Seafoods, Ltd. (1978, WD Wash) 459 F Supp 463;
Lotzman v Oxyness Shipping Co. (1978) 93 Misc 2d 461, 402
NYS2d 964.
Under both Jones
Act and general maritime law, status as seaman depends on 3
factors: (1) vessel on which claimant employed must be in
navigation; (2) claimant must have more or less permanent
connection with vessel; and (3) claimant must be aboard
primarily to aid in navigation. Omar v Sea-Land Service,
Inc. (1987, CA9 Wash) 813 F2d 986.
Under "no snapshot" doctrine, court does not
evaluate worker's connection to vessel or fleet at moment of
injury; court must consider his intended relationship, as if
he had completed his mission uninjured. Foulk v Donjon
Marine Co. (1998, CA3 NJ) 144 F3d 252, 40 FR Serv 3d
980.
Trial judge abused his
discretion in permitting plaintiff to present evidence of
prior work history unrelated to defendant employer. Shade v
Great Lakes Dredge & Dock Co. (1998, CA3 Pa) 154 F3d
143.
There is three-part
test determining issue of whether individual is "member of
crew" of "vessel": (1) allegedly unseaworthy vessel must
have been vessel in navigation; (2) plaintiff must have been
aboard vessel primarily to perform duties which contributed
to function of vessel or accomplishment of mission; and (3)
plaintiff must have had more or less permanent connection
with vessel or with specific group of vessels. Buna v
Pacific Far East Line, Inc. (1977, ND Cal) 441 F Supp 1360.
Yelverton v Mobile Laboratories, Inc. (1985, SD Miss) 608 F
Supp 400, affd (CA5 Miss) 782 F2d 555.
119. Aiding in navigationEmployee need not aid in navigation of vessel
in order to qualify as "seaman" under Jones Act; therefore,
paint foreman, whose employment duties included sandblasting
and painting of piping located on oil drilling platforms who
was injured while inspecting pipe on such platform was
"seaman" within meaning of Act. McDermott Int'l, Inc. v
Wilander (1991, US) 112 L Ed 2d 866, 111 S Ct 807, 91 CDOS
1271, 91 Daily Journal DAR 2056.
Person working aboard ship cannot be seaman for
purposes of 46 USCS Appx section 688 if ship is not in navigation.
Antus v Interocean S.S. Co. (1939, CA6 Ohio) 108 F2d
185.
Term "aiding in
navigation" is not confined to those who can "hand, reef and
steer" but applies to all whose duties contribute to
operation and welfare of vessel. Wilkes v Mississippi River
Sand & Gravel Co. (1953, CA6 Tenn) 202 F2d 383, cert den
346 US 817, 98 L Ed 344, 74 S Ct 29.
To be considered "seaman" for purposes of
recovery under Jones Act, 46 USCS Appx section 688, nature of
claimant's duties aboard vessel is not controlling and he
need not be serving vessel in strictly navigational
capacity. Weiss v Central R. Co. (1956, CA2 NY) 235 F2d
309.
With respect to
determination of seaman's status under 46 USCS Appx section 688,
there is no absolute requirement that claimant actually
cause vessel to move. Mietla v Warner Co. (1975, ED Pa) 387
F Supp 937.
Person is not
aboard naturally and primarily as aid to navigation and
therefore not Jones Act -46 USCS Appx section 688- seamen where
person was never on barge while barge was moving, boarded
barge only for purpose of operating crane, of performing
maintenance work, and, on rare occasions, for purpose of
handling lines or tying up barge and where further person
did not sleep overnight on barge. McSweeney v M.J. Rudolph
Corp. (1983, ED NY) 575 F Supp 746.
Widow's 46 USCS Appx section 688 claim against U.S.
must fail, where husband was killed when overcome by fumes
while cleaning and venting various tanks and cofferdams on
naval vessel pursuant to his employer's contract with Navy,
because these duties did not contribute to transportation
function of ship and were not "aid to navigation," and
husband therefore was not "seaman." Minnick v United States
(1990, ED Va) 767 F Supp 115, 1991 AMC
1284.
When crew of vessel
is referred to, those persons are naturally and primarily
meant who are on board her aiding in her navigation without
reference to nature of arrangement under which they are on
board. Shore Fishery, Inc. v Board of Review (1941) 127 NJL
87, 21 A2d 634, 1942 AMC 1558.
Although claimant must be permanently assigned
to vessel and his duties must contribute to mission of
vessel in order to qualify as seaman under Jones Act,
claimant's duties need not be related to navigation of
vessel. Allen v Mobile Interstate Piledrivers (1985, Ala)
475 So 2d 530.
120. Continuous attachmentDuration of service for and upon vessel may
determine whether shipboard work which is not normally
performed by ship's company makes worker crewman, but lack
of long continued attachment to vessel cannot, as matter of
law, serve to deny seaman's status under Jones Act, 46 USCS
Appx section 688, to employee who is injured while assigned to and
performing normal crew service. Mach v Pennsylvania R. Co.
(1963, CA3 Pa) 317 F2d 761; Petition of Read (1963, SD Fla)
224 F Supp 241.
Evidence of
sporadic contacts for brief periods of time with water-borne
vessels is insufficient to support finding of seaman status
under Jones Act, 46 USCS Appx section 688; it must be shown that
workman performs significant part of his work aboard ship
with at least some degree of regularity and continuity.
Holland v Allied Structural Steel Co. (1976, CA5 Miss) 539
F2d 476, reh den (CA5 Miss) 542 F2d 1173 and cert den 429 US
1105, 51 L Ed 2d 557, 97 S Ct 1136.
Employee who is not permanently assigned to any
particular vessel or fleet of vessels cannot be considered
"seaman" for purpose of Jones Act. Bach v Trident S.S. Co.
(1991, CA5 La) 947 F2d 1290.
Real test of coverage under Jones Act, 46 USCS
Appx section 688, is not whether claimant is seaman assisting in
navigation of vessel or whether vessel itself is plying
seven seas; real test is whether claimant is more or less
permanently employed aboard vessel in capacity which
contributes to accomplishment of vessel's mission; for
example cooks, drillers, and musicians employed aboard
vessel on more or less permanent basis may be covered by
Jones Act. Perez v Marine Transport Lines, Inc. (1958, DC
La) 160 F Supp 853.
It is
not necessary that employee live aboard vessel in order to
acquire status of seaman, he need only be more or less
permanently attached to vessel, including special purpose
structure or perform substantial part of his work aboard
such vessel and, secondly, capacity in which he is employed
or duties which he performs must contribute to function of
vessel or to accomplishment of its mission or operation or
welfare of vessel in terms of maintenance during movement or
during anchorage for other trips. Chenevert v Clinch
Drilling Co. (1967, ED La) 273 F Supp
943.
Employee may be seaman
although variously assigned to several different vessels
from time to time; and seamen who are injured on shore while
engaged in temporary or fill-in work for their employers are
covered by Jones Act, 46 USCS Appx section 688. Taylor v Packer
Diving & Salvage Co. (1971, ED La) 342 F Supp 365, affd
(CA5 La) 457 F2d 512, reh den (CA5 La) 471 F2d
650.
Since Fifth Circuit
established test for seaman status under Jones Act while
employer's motion for judgment n.o.v. was pending, coiled
tubing operator, killed after falling from platform aboard
ship, was held not to be seaman under Jones Act where
overall, only about 5% of his work was done aboard vessels,
since seaman status is determined in context of entire
employment with current employer. Ward v Reeled Tubing, Inc.
(1986, ED La) 637 F Supp 33.
121. --Particular circumstancesEmployee was not more or less permanently
conntected with vessel where his presence on vessel was only
for purpose and duration of loading freighter alongside and
he ate and slept ashore. Salgado v M. J. Rudolph Corp.
(1975, CA2 NY) 514 F2d 750.
Employee does not meet continuous attachment
requirement for status as seaman under Jones Act, 46 USCS
Appx section 688, where during his employment he spent less than
15 percent of his total time onboard vessel. Davis v Hill
Engineering, Inc. (1977, CA5 Tex) 549 F2d 314, reh den (CA5
Tex) 554 F2d 1065 and (ovrld on other grounds Culver v
Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part
(CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842,
104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct
90).
Roustabout injured
while unloading pipe from barge was not seaman within
meaning of Jones Act (46 USCS Appx section 688) where his time of
employment was only 28 workdays of which only one was at sea
and where employee had never journeyed with any vessel to
its destination to unload cargo and had never eaten or slept
on board any vessel. Stokes v B. T. Oilfield Services, Inc.
(1980, CA5 La) 617 F2d 1205.
Welder's helper injured while repairing
offshore structure had permanent connection with vessel in
navigation for purposes of establishing his status as
seaman, where helper spent approximately 70 to 80 percent of
his time on jack-up barge positioned alongside caisson that
provided work area for crew, and where caisson was entirely
isolated structure too small to accommodate workers on it.
Barrett v Chevron, U.S.A., Inc. (1985, CA5 La) 752 F2d 129,
different results reached on reh, en banc (CA5 La) 781 F2d
1067.
Permanent connection
requirement for seaman status was satisfied by evidence that
machinist repaired equipment while aboard car ferries
sailing between ports and performed almost all duties aboard
vessel. Petersen v Chesapeake & O. R. Co. (1986, CA6
Mich) 784 F2d 732.
Sanitation worker who was injured at sanitation
barge unloading facility may maintain action against city
under 46 Appx USCS section 688, where worker served as member of
digger gang whose duties included attaching and detaching
boatlines of, fighting fires on, and cleaning up loaded and
unloaded barges, because whether worker was seaman under section
688 is question of fact since case law does not
unequivocally require that seaman be substantially connected
to vessel or group of vessels as opposed to being connected
to vessel or group of vessels on steady basis. Buccellato v
New York (1992, ED NY) 808 F Supp 967.
122. Nature of workWhether
person is "seaman" within meaning of 46 USCS Appx section 688
depends largely on facts of particular case and activity in
which he was engaged at time of injury. Desper v Starved
Rock Ferry Co. (1952) 342 US 187, 96 L Ed 205, 72 S Ct 216,
reh den 342 US 934, 96 L Ed 695, 72 S Ct
374.
Work done by employee
is crucial in determining whether his status is such as to
permit recovery for personal injuries in action under 46
USCS Appx section 688. Braen v Pfeifer Oil Transp. Co. (1959) 361
US 129, 4 L Ed 2d 191, 80 S Ct 247.
Worker is not considered to be "seaman" under
Jones Act simply because worker is doing seaman's work at
time of injury; seaman status under Jones Act is not
coextensive with seamen's risks. Chandris, Inc. v Latsis
(1995, US) 132 L Ed 2d 314, 115 S Ct 2172, 95 CDOS 4499, 95
Daily Journal DAR 7769, 17 BNA OSHC 1257, 1995 AMC
1840.
Employee's prior work
history with particular employer may not affect inquiry
whether employee is seaman under 46 USCS Appx section 688(a), if
employee was injured on new assignment with same employer
which involved different essential duties from previous
assignments; inquiry into nature of duties for seaman-status
purposes may concentrate on narrower, not broader, period
than entire course of employment with current employer.
Harbor Tug & Barge Co. v Papai (1997, US) 137 L Ed 2d
800, 117 S Ct 1535, 97 CDOS 3507, 97 Daily Journal DAR 6021,
1997 AMC 1817, 10 FLW Fed S 433.
Recovery under 46 USCS Appx section 688 requires
affiliation with "vessel", either as crew member or as one
injured aboard doing seaman's work. Powers v Bethlehem Steel
Corp. (1973, CA1 Mass) 477 F2d 643, reh den (CA1 Mass) 483
F2d 963 and cert den 414 US 856, 38 L Ed 2d 106, 94 S Ct
160.
One who works aboard
ship is usually considered seaman if his duties are
essential to some purpose of vessel; work need not be in
actual aid of navigation. Lewis v Roland E. Trego & Sons
(1974, CA4 Md) 501 F2d 372.
Issue of injured worker's status as "seaman"
should be addressed with reference to nature and location of
occupation taken as whole; fact that worker may have been
injured aboard vessel while performing task that would
normally be handled by member of ship's crew is not alone
determinative of "seaman" status. Longmire v Sea Drilling
Corp. (1980, CA5 La) 610 F2d 1342, reh den (CA5 La) 615 F2d
919.
Once it is established
that worker is seaman, it is not necessary that task he
performs at time he is injured be related to service of
vessel. Savoie v Otto Candies, Inc. (1982, CA5 La) 692 F2d
363, 12 Fed Rules Evid Serv 269.
To qualify as seaman under 46 USCS Appx section 688,
claimant must be permanently assigned to or perform
substantial part of his work on vessel, and capacity of his
employment must contribute to function of vessel, its
mission, operation, or its welfare. Wallace v Oceaneering
International (1984, CA5 La) 727 F2d
427.
Worker claiming seaman
status under 46 USCS Appx section 688 must establish that he is
assigned permanently to vessel in navigation or performs
substantial part of his work on vessel or fleet of vessels,
and that his work contributes to function of vessel or to
accomplishment of its mission. Lormand v Superior Oil Co.
(1987, CA5 La) 845 F2d 536, 1988 AMC 2362, cert den (US) 98
L Ed 2d 774, 108 S Ct 739, 1988 AMC
2400.
Claimant may not
recover under Jones Act (46 USCS Appx section 688), where, in
2-year period prior to accident, he had been out on yawl not
more than half-dozen times, and was only one of number of
persons that owner called on to crew vessel, even though
owner may have promised to include him in trans-Pacific
voyage in future, because claimant is not seaman since his
connection to yawl was not substantial in terms of its
duration or nature. Xanadu Maritime Trust v Meyer (1998, ND
Cal) 21 F Supp 2d 1104, 99 Daily Journal DAR
2933.
Self-employed compass
adjuster was not seaman under 46 USCS Appx section 688 because his
connection with vessel was temporary. Lotzman v Oxyness
Shipping Co. (1978) 93 Misc 2d 461, 402 NYS2d
964.
123. --Particular dutiesDecedents whose duties consisted of spreading
and leveling gravel in barges, where it was deposited by
conveyer belt from dredge, and who lived on dredge boat
along with rest of men employed, not being required to live
aboard, but not being charged anything for their quarters or
board, were members of crew and entitled to recovery under
46 USCS Appx section 688. Wilkes v Mississippi River Sand &
Gravel Co. (1953, CA6 Tenn) 202 F2d 383, cert den 346 US
817, 98 L Ed 344, 74 S Ct 29.
In action by structual welder on offshore
construction job who was injured while attempting to lift
padeye used in salvage of offshore drilling platform,
summary judgment for defendant is improperly granted where
genuine issue of fact exists as to whether structural welder
working aboard derrick barge performed work which
constributed to function of barge and whether he is
"permanently assigned" to fleet of derrick barges operated
by defendant. Ardoin v J. Ray McDermott & Co. (1981, CA5
La) 641 F2d 277, reh den (CA5 La) 646 F2d 566 and later app
(CA5 La) 684 F2d 335, 11 Fed Rules Evid Serv
843.
Under Jones Act,
plaintiff's status as seaman is determined at time of
injury; determination of machinist's status as seaman at
time of his exposure to asbestos was not error since injury
in asbestos-related cases occurs when asbestos fibers are
inhaled even though injury does not manifest itself as
asbestosis until many years later. Petersen v Chesapeake
& O. R. Co. (1986, CA6 Mich) 784 F2d
732.
Rule that status of
employee whose regularly assigned duties require him to
divide his time between vessel and land is to be determined
in context of his entire employment with his current
employer applies unless employee's permanent job assignment
has changed during course of employment by his present
employer. Lormand v Superior Oil Co. (1987, CA5 La) 845 F2d
536, 1988 AMC 2362, cert den (US) 98 L Ed 2d 774, 108 S Ct
739, 1988 AMC 2400.
Activity of plaintiff at time of injury is only
one factor in analysis of whether or not that individual,
seeking damages under Jones Act (46 USCS Appx section 688), is
engaged in occupation covered by Longshore and Harbor
Workers' Compensation Act (33 USCS section 905) and thus
ineligible for Jones Act benefits; general issue of material
fact exists as to plaintiff's status as seaman, where, at
time of accident, plaintiff was either on shore constructing
new crew quarters for barge or on shore loading barge with
sand for subsequent pipelaying job offshore, and plaintiff
also maintains that he spent approximately 90 percent of his
employment time with employer offshore onboard barge as
member of crew of that barge, and employer does not dispute
that plaintiff's job title for purposes of receiving
compensation was crane operator onboard barge. Thibodeaux v
Torch, Inc. (1988, CA5 La) 858 F2d 1048, reh den, en banc
(CA5 La) 862 F2d 874.
Employee was Longshore and Harbor Workers'
Compensation Act (33 USCS section 901 et seq.) longshoreman
rather than Jones Act (46 USCS Appx section 688) seaman when
injured because he was promoting loading and unloading of
cargo when injured and for 2 months preceding injury spent
only 2 days engaged in seaman's work and remaining days on
shore conducting vessel repairs. Chauvin v Sanford Offshore
Salvage, Inc. (1989, CA5 La) 868 F2d 735, 1989 AMC
1380.
Dismantling of crane
was not operation involving loading of cargo when crane had
not yet become cargo, because it was not yet in course of
being loaded on barges in its component parts; therefore,
dismantling of crane under such circumstances was not in
nature of work traditionally performed by seamen, but was
rather work performed by riggers or shoreside workers. Re
Smith-Rice #4 (1968, DC Cal) 323 F Supp
44.
In personal injury
action brought by power plant operator against employer
under Jones Act (46 USCS Appx section 688) and general maritime
law arising out of injury to plaintiff while temporarily
assigned to one of defendant's fixed drilling platforms,
plaintiff is seaman within meaning of Jones Act (46 USCS
Appx section 688) where plaintiff's normal job assignment is on
submersible drilling platform designed to be towed from
drilling position to drilling position, where plaintiff is
temporarily assigned to fixed drilling platform, and where
plaintiff is to be transferred to movable drilling platform
as soon as feasible; movable drilling platforms are vessels
for purposes of Act whereas permanently fixed platforms are
not, and once it is established that worker is seaman, Act
permits worker to recover for injuries received while off
vessel, and temporary assignment of plaintiff to fixed
platform does not divest him of status as seaman. Wilkerson
v Teledyne Movible Offshore, Inc. (1980, ED Tex) 496 F Supp
1279.
Welder employed as
platform based worker who occasionally utilized vessel for
purposes of transportation to work site is not seaman since
he has no duties regarding operation and maintenance of
vessel, but is part of welding crew not crew of vessel.
Welch v Elevating Boats (1981, ED La) 516 F Supp
1245.
There is evidentiary
basis for case to go to jury on issue of plaintiff's seaman
status if (1) there is evidence that injured workman was
assigned permanently to vessel, including special purpose
structures not usually employed as means of transport by
water but designed to float on water, or performed
substantial part of his work on vessel and (2) capacity in
which he was employed contributed to function of vessel or
to accomplishment of its mission or to operation of welfare
of vessel in terms of its maintenance during its movement or
during anchorage for its future trips. Yelverton v Mobile
Laboratories, Inc. (1985, SD Miss) 608 F Supp 400, affd (CA5
Miss) 782 F2d 555.
Injured
worker does not state claim under 46 USCS Appx section 688, where
worker performed tests on pipe and oil field casings, spent
less than 10 percent of his time on vessels, and was never
permanently assigned to any vessel or identifiable fleet of
vessels, because worker is not "seaman," notwithstanding
that he was injured while on ship near offshore drilling
platform. Bailey v Global Marine, Inc. (1989, SD Tex) 714 F
Supp 235.
Injured diver is
"seaman" entitled to bring claim under Jones Act (46 USCS
Appx section 688), where diver logged total of 69 hours over
course of 3-week period as member of dive team on tugboat
used to transport workers and as station for underwater work
of replacing submarine hose at oil refinery just prior to
suffering "bends" while on dive for project, because nature
of his work and its dependence on vessel satisfy "permanent
connection with vessel" prong of seaman test. Kjar v
American Divers (1991, DC Hawaii) 851 F Supp 388, 1994 AMC
522.
Barge pilot who was
injured while piloting barge by excavator operator is seaman
under Jones Act, where although pilot spent only one-fourth
to one-fifth of his time piloting barge, during that time he
alone was responsible for navigation and operation of barge,
because pilot spent substantial amount of time performing
traditional seaman's duties that would normally be performed
by crew member. Viator v Gordon's Trucking Co. (1995, WD La)
875 F Supp 369.
Offshore
worker was not "seaman" under 46 USCS Appx section 688, where
worker performed duties as gauger and operator on wells and
platforms, but worker often was transported by crew boat to
wells or platforms to perform his job, and fact that worker
sometimes piloted crew boats and performed some routine
maintenance on them did not establish that he did
substantial amount of his work on vessel. Borne v Vintage
Petroleum (1996, SD Tex) 949 F Supp
492.
124. Location of workLand-based
workers are not included in class of seamen for purposes of
Jones Act or general maritime law. Chandris, Inc. v Latsis
(1995, US) 132 L Ed 2d 314, 115 S Ct 2172, 95 CDOS 4499, 95
Daily Journal DAR 7769, 17 BNA OSHC 1257, 1995 AMC
1840.
To qualify for 46
USCS Appx section 688 benefits, injured worker must be on more or
less permanent assignment to vessel or performing
substantial part of his work aboard vessel. Tipton v Socony
Mobil Oil Co. (1963, CA5 Tex) 315 F2d 660, vacated on other
grounds 375 US 34, 11 L Ed 2d 4, 84 S Ct 1, reh den 375 US
936, 11 L Ed 2d 268, 84 S Ct 328; Stafford v Perini Corp.
(1973, CA1 Mass) 475 F2d 507; Dugas v Pelican Constr. Co.
(1973, CA5 La) 481 F2d 773, cert den 414 US 1093, 38 L Ed 2d
550, 94 S Ct 724.
Plaintiff
who was shore-based worker hired by independent contractor
to do special job in hold of vessel and not employed by
owner of vessel is not any sense permanently attached to
that vessel and lacks status necessary to sue vessel owner
under Jones Act, 46 USCS Appx section 688. Thomas v Peterson
Marine Service, Inc. (1969, CA5 La) 411 F2d 592, cert den
396 US 1006, 24 L Ed 2d 499, 90 S Ct
562.
Although worker does
not forever remain seaman solely by virtue of having once
been one, it does not follow that seaman automatically loses
his status when he is temporarily assigned by his employer
to duties off vessel; he retains his status so long as he
performs substantial part of his work on vessel.
Higginbotham v Mobil Oil Corp. (1977, CA5 La) 545 F2d 422
(disagreed with Smith v M/V Captain Fred (CA5 La) 546 F2d
119) as stated in Longmire v Sea Drilling Corp. (CA5 La) 610
F2d 1342, reh den (CA5 La) 615 F2d 919 and (disagreed with
Steckler v United States (CA10 Colo) 549 F2d 1372, 38 ALR
Fed 188 (disagreed with Smith v United States (CA3 Pa) 587
F2d 1013)) and revd on other grounds 436 US 618, 56 L Ed 2d
581, 98 S Ct 2010, on remand (CA5 La) 578 F2d 565 and reh
den 439 US 884, 58 L Ed 2d 200, 99 S Ct 232 and (ovrld on
other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280,
op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US
1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L
Ed 2d 37, 105 S Ct 90) and (disapproved on other grounds
Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523, 76 L
Ed 2d 768, 103 S Ct 2541, on remand (CA3) 711 F2d
570).
Mechanic for drilling
company who worked for several years aboard floating barge
rig which was retired from service and at same time mechanic
was reassigned to land rig where 3 weeks later he was
injured was not a seaman at time claim arose. Smith v
Nicklos Drilling Co. (1988, CA5 La) 841 F2d
598.
Under rule that one of
criteria for determining whether individual is seaman under
Jones Act is whether individual was assigned permanently to
vessel, claimant can be permanently assigned to vessel
without performing substantial part of his work on vessel.
Allen v Mobile Interstate Piledrivers (1985, Ala) 475 So 2d
530.
Land-based maritime
workers do not become seaman because they happen to be
working on board vessel when they are injured, and seamen do
not lose protection under 46 USCS Appx section 688(a) when course
of their service to vessel takes them ashore. Schultz v
Louisiana Dock Co. (2000, ED La) 94 F Supp 2d
746.
125. --Working on multiple vesselsIn deciding whether there is identifiable group
of vessels of relevance for purposes of determining whether
employee is seaman under 46 USCS Appx section 688(a)--in that one
requirement for seaman status is that employee have
connection to vessel in navigation, or to identifiable group
of such vessels, that is substantial in terms of both
duration and nature--question is whether vessels are subject
to common ownership or control. Harbor Tug & Barge Co. v
Papai (1997, US) 137 L Ed 2d 800, 117 S Ct 1535, 97 CDOS
3507, 97 Daily Journal DAR 6021, 1997 AMC 1817, 10 FLW Fed S
433.
In action by injured
employee of company which specialized in setting and
removing casing pipe in oil rigs, summary judgment for
employer is proper where, although employee is clearly
performing duties essential to functions of oil rig, he
fails to show any permanent assignment or performance of
substantial part of his duties on either particular rig or
any other specified group of vessels but has worked on 40
different rigs, 13 of which were non-vessel fixed platforms,
7 were on land and of remaining rigs he was on 13 only once
and never returned to any specific rig more than three
times. Guidry v Continental Oil Co. (1981, CA5 La) 640 F2d
523, 31 FR Serv 2d 443, cert den 454 US 818, 70 L Ed 2d 87,
102 S Ct 96 and (disapproved on other grounds Scindia Steam
Navigation Co. v De Los Santos, 451 US 156, 68 L Ed 2d 1,
101 S Ct 1614) as stated in Helaire v Mobil Oil Co. (CA5 La)
709 F2d 1031.
Wire line
engineer eligible to work on any one of 140 vessels and 67
platforms who in course of employment had worked on 30
different vessels was not permanently attached to nor
performing substantial part of his work on identifiable
group or fleet of vessels and therefore was not seaman.
Ardleigh v Schlumberger, Ltd. (1987, CA5 La) 832 F2d
933.
Employer who hires men
to work on water on vessels engaged in navigation and
permits them to have permanent connection with vessel as to
expose them to same hazards of marine service as those
shared by all aboard should not be permitted to exculpate
himself from responsibility for negligence under Jones Act,
46 USCS Appx section 688, on thesis that employees' duties were
not confined to single ship but involved many ships. Mach v
Pennsylvania R. Co. (1962, WD Pa) 207 F Supp 233, affd (CA3
Pa) 317 F2d 761.
Where
plaintiff's connections with defendant's vessels was clearly
sporadic and he failed to identify barge or group of barges
to which he was regularly assigned or to which he had any
degree of continuing responsibility, plaintiff is not
"seaman" within meaning of 46 USCS Appx section 688. Baker v
Pacific Far East Lines, Inc. (1978, ND Cal) 451 F Supp
84.
126. --Living off vesselEmployee
was not more or less permanently connected with vessel where
his presence on vessel was only for purpose of loading
freighter and he ate and slept ashore. Salgado v M. J.
Rudolph Corp. (1975, CA2 NY) 514 F2d
750.
It is not necessary
that employee live aboard vessel in order to acquire status
of seaman, he need only be more or less permanently attached
to vessel. Chenevert v Clinch Drilling Co. (1967, ED La) 273
F Supp 943.
Fact that
plaintiff was injured on pier was of no relevance with
respect to his seaman's status under 46 USCS Appx section 688, and
his seaman's status was not denied as matter of law because
he lived, ate, and slept ashore. Mietla v Warner Co. (1975,
ED Pa) 387 F Supp 937.
127. Place of injury46 USCS Appx
section 688 has provided right of recovery for seamen against
their employers for negligence resulting in injury or death,
right which follows from seaman's employment status and not
limited to injury or death occurring on high seas. Moragne v
States Marine Lines, Inc. (1970) 398 US 375, 26 L Ed 2d 339,
90 S Ct 1772, on remand (CA5 Fla) 446 F2d
906.
Seamen can recover
under 46 USCS Appx section 688 for injury suffered in course of
ship's services, whether on land or sea. Re Dearborn Marine
Service, Inc. (1974, CA5 Tex) 499 F2d 263, 30 ALR Fed 499,
reh den (CA5 Tex) 512 F2d 1061, and cert dismd 423 US 886,
46 L Ed 2d 118, 96 S Ct 163.
46 USCS Appx section 688 has no application where
plaintiff was working on land at time he was injured.
Seifort v Keansburg Steamboat Co. (1937, DC NY) 20 F Supp
542, 1937 AMC 821.
Seamen
who are injured on shore while engaged in temporary or
fill-in work for their employers are covered by Jones Act.
Taylor v Packer Diving & Salvage Co. (1971, ED La) 342 F
Supp 365, affd (CA5 La) 457 F2d 512, reh den (CA5 La) 471
F2d 650.
Once it is
established that worker is seaman, Act permits worker to
recover for injuries received while off vessel. Wilkerson v
Teledyne Movible Offshore, Inc. (1980, ED Tex) 496 F Supp
1279.
Seaman is not
entitled to recover under 46 USCS Appx section 688 for injury
occurring on land, even though it occurred while unloading
coal from barge to tipple, injured seaman being crane
operator working about ninety feet from water's edge on
railroad track. Nixon v Raymond City Coal & Transp. Co.
(1939) 280 Ky 743, 134 SW2d 633.
128. --On dock or pierSeaman
injured on wharf on Puerto Rico while painting side of
American vessel could not sue under 46 USCS Appx section 688, but
was limited to workmen's compensation act of Puerto Rico,
since such injuries occurring on land are under law of land.
Esteves v Lykes Bros. S.S. Co. (1934, CA5 Tex) 74 F2d 364,
cert den 295 US 751, 79 L Ed 1695, 55 S Ct
830.
So long as vessel is
upon navigable waters, injured seaman may recover for
injuries suffered while on wharf. Griffith v Wheeling
Pittsburgh Steel Corp. (1975, CA3 Pa) 521 F2d 31, cert den
423 US 1054, 46 L Ed 2d 643, 96 S Ct
785.
Fact that plaintiff
was injured on pier was of no relevance with respect to his
seaman's status under 46 USCS Appx section 688. Mietla v Warner
Co. (1975, ED Pa) 387 F Supp 937.
Plaintiff was not seaman within meaning of 46
USCS Appx section 688 where at time of injury he was shoreside
worker, performing maintenance on docked vessels, and had
been so employed for 3 to 4 months even though prior to this
time he was employed as seaman aboard vessel. White v
Louisiana Menhaden Co. (1980, ED La) 498 F Supp
126.
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