To Be A Or To Not To Be A Seaman
A primer on seaman status where a change of job duties with the same employer has occurred
The United States Supreme Court has decided four cases over the last several years which have been interpreted by numerous admiralty and maritime lawyers as severely limiting the number of maritime workers that qualify for Jones Act seaman status. However, a careful reading of these cases indicates that an expansion of seaman status has occurred for one category of maritime workers. This category is the maritime worker who has had a change of employment position with the same employer or has been laid off and rehired by the employer. Even though the worker has spent less than thirty percent (30%) of his entire work history with the employer working on a vessel or fleet of vessels owned or operated by the employer, the worker may qualify for seaman status under the Jones Act in the event that he has had a permanent change in employment duties.
In developing a test for seaman status, the Supreme Court has focused "on the nature of the seaman's service, his status as a member of the vessel, and his relationship as such to the vessel and its operation in navigable waters." Chandris, Inc. v. Latsis, 515 U.S. 347, 359, 60, 115 S.Ct. 2172, 2185, 1995 AMC 1840 (1995). "The key to seaman status ... is employment related connection to a vessel in navigation.". Id. From these basic principles, the Supreme Court set forth a two-part test to determine whether an individual is entitled to Jones Act protection as a seaman. To prove seaman status, an employee must establish his (1) "employment-related connection" (2) to a vessel in navigation. McDermott Int’l. Inc. v. Wilander, 498 U.S.337, 354-55, 111 S.Ct. 807, 1991 AMC 913, 926 (1991).
An employment-related connection to a vessel exists if two conditions are satisfied: first, an employee's duties must "contribute to the function of the vessel or to the accomplishment of its mission" or doing ship’s work. Chandris, 515 U.S. at 368, 115 S.Ct. at 2190, 1995 AMC at 1856. Second, the employee’s connection to the vessel (or to an identifiable group of such vessels) "must be substantial in both its duration and nature." Id. The question of seaman status is often "fact specific," and "[i]f reasonable persons, applying the proper legal standard, could differ as to whether the employee was a 'member of a crew,' it is a question for the jury." Wilander, 498 U.S. at 356, 111 S.Ct. at 818, 1991 AMC at 928.
The first prong of the Chandris seaman status test focuses on the employee’s employment at the time of the injury. In satisfying this requirement, the seaman does not have to aid the vessel in navigation, See Wilander, 498 U.S. at 353, 111 S.Ct. at 816, 1991 AMC at 927; rather, the employee must merely "perform the work of the vessel." Id. at 355, 111 S.Ct. at 817, 1991 AMC at 927. This standard is very liberal. The Supreme Court has said that "[a]ll who work at sea in the service of a ship are eligible for seaman status." Chandris, 515 U.S. at 368, 115 S.Ct. at 2190, 1995 AMC at 1856 (emphasis in original).
The second inquiry focuses on whether the employee derives his livelihood from sea-based activities, which is required in order to be a seaman. The Supreme Court has held that courts should not be tempted to use detailed tests to determine seaman status; rather, courts should look to an individual’s employment with regards to a connection to a vessel or fleet of vessels to determine seaman status.
In defining the prerequisites for Jones Act coverage, we think it preferable to focus upon the essence of what it means to be a seaman and to eschew the temptation to create detailed tests to effectuate the congressional purpose, tests that tend to become ends in and of themselves...The Jones Act remedy is reserved for sea-based maritime employees whose work regularly exposes them to ‘‘the special hazards and disadvantages to which they who go down to sea in ships are subjected.’’....In our view, ‘‘the total circumstances of an individual's employment must be weighed to determine whether he had a sufficient relation to the navigation of vessels and the perils attendant thereon.’’ The duration of a worker's connection to a vessel and the nature of the worker's activities, taken together, determine whether a maritime employee is a seaman because the 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.
Chandris, 115 S.Ct. 2190-91, 1995 AMC at 1857-58 (Citations omitted).
The seaman’s substantial connection to a vessel is to be determined by reference to the period covered by the Jones Act maritime employment, rather than by some absolute measure. Id. at 2191, 1995 AMC at 1857-58. Generally, the Fifth Circuit’s rule of thumb for the ordinary case in determining seaman’’s status, that a worker who spends less than 30 (30%) percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act, serves as no more than a guideline, and "departure from it will certainly be justified in appropriate cases." Id.
Chandris also holds that it is not appropriate to limit the seaman status inquiry exclusively to an examination of the overall course of a worker's service with a particular employer when the employee’’s assignment with the employer has changed. Id. "[T]he words ‘‘particular employer’’ give emphasis to the point that the inquiry into the nature of the employee’s duties for seaman status purposes may concentrate on a narrower, not broader, period than the employee’’s entire course of employment with his current employer." Harbor Tug and Barge Co. v. Papai, 117 S.Ct. at1541, 520 U.S. at 556-57 (1997). (An employee’s prior work history cannot be considered for seaman’s status when the employee’s employment was previously terminated by the employer). In those circumstances, a court must consider only the nature of the employee’s basic job assignment as it existed at the time of injury. Chandris, 115 S.Ct. at 2191, 1995 AMC at 1857-58. When a maritime worker’s basic assignment changes, his seaman status may change as well. Id. To illustrate this holding, the Supreme Court explained:
For example, we can imagine situations in which someone who had worked for years in an employer's shoreside headquarters is then reassigned to a ship in a classic seaman's job that involves a regular and continuous, rather than intermittent, commitment of the worker's labor to the function of a vessel. Such a person should not be denied seaman status if injured shortly after the reassignment, just as someone actually transferred to a desk job in the company's office and injured in the hallway should not be entitled to claim seaman status on the basis of prior service at sea.
Chandris, 115 S.Ct. at 2191, 1995 AMC at 1857-58.
Thus, while a court must not concentrate exclusively on the employee’s specific activity at the time of injury, a court should limit its examination of the employee’s duties to the employee’s basic job assignment as it existed at the time of injury. If an employee receives a new work assignment before his accident, in which either his essential duties or his work location is changed, he is entitled to have the assessment of the substantiality of his vessel related work connection made on the basis of his activities in his new job.
If a maritime employee receives a new work assignment in which his essential duties are changed, he is entitled to have the assessment of the substantiality of his vessel-related work made on the basis of his activities in his new position. See Cheavens, 64 Tulane L.Rev., at 389-390. Thus, nothing in our opinion forecloses Jones Act coverage, in appropriate cases, for Justice Stevens' paradigmatic maritime worker injured while reassigned to "a lengthy voyage on the high seas," post, at 1870. While our approach maintains the status-based inquiry this Court's earlier cases contemplate, we recognize that seaman status also should not be some immutable characteristic that maritime workers who spend only a portion of their time at sea can never attain.
Id. at 2191-92, 1995 AMC at 1858-59.
Employers will sometimes contend that, although a maritime worker was injured while working on a vessel, he is not a seaman. The employers will argue that the maritime worker was only temporarily employed on the vessel doing seaman’s work and was going to be reassigned after the job was completed. This argument has been expressly rejected by the Supreme Court in Harbor Tug and Barge Co. v. Papai, 117 S.Ct. 1535, 520 U.S. 548 (1997). The Court in Papai indicated that an employee, who has an informal and temporary change of duties that require him to perform seaman work on a vessel, is considered to be a seaman for any injuries during the time period he is assigned to the vessel. The Court wrote:
an informal and temporary change of duties, though not tantamount to permanent assignment to a vessel, may be sufficient to effect an immediate change in the worker's status to that of a seaman if the change of duties involves work that would normally be done by a member of a ship's crew and it can reasonably be said that, taking into consideration all the circumstances of his employment, the change involves a regular and continuous, rather than intermittent, commitment of the worker's labor to the ‘‘function of the vessel, its mission, its operation, or its welfare.’’ Cf. Beard v. Shell Oil Co., 606 F.2d 515, 517 (5th Cir. 1979). What is to be avoided is engrafting upon the statutory classification of a "seaman" a judicial gloss so protean, elusive, or arbitrary as to permit a worker to walk into and out of coverage in the course of his regular duties.
Id. at 1541, 520 U.S. at 546.
Thus, under the recent Supreme Court Cases, the following maritime workers will probably qualify for seaman status:
A maritime worker who, prior to his injury on a vessel, spent eighty percent (80%) of his time working on shore and not connected to a vessel or a fleet of vessels. However, at the time of the injury, he had a change of position where he was assigned to work on a vessel or fleet of vessels in navigation and after the change of position spent over thirty percent (30%) of his time working on a vessel or fleet of vessels.
A maritime worker who, at the time of his injury, spends over thirty percent (30%) of his time working on vessels and less than seventy percent (70%) of his time working on shore.
A maritime worker who spends one hundred percent (100%) of his time working on a vessel or fleet of vessels.
The following maritime workers will probably not qualify for seaman status under the Supreme Court cases:
A maritime worker who, prior to his injury on a vessel, spent eighty percent (80%) of his time working on shore and not connected to a vessel or a fleet of vessels. However, at the time of the injury, he had a change of position where he was assigned to work on a vessel or fleet of vessels in navigation and after the change of position spent less than thirty percent (30%) of his time working on a vessel or fleet of vessels.
A maritime worker who, at the time of his injury, spent less than thirty percent (30%) of his time working on vessels and more than seventy percent (70%) of his time working on shore.
A maritime worker who spends one hundred percent (100%) of his time working on land.
A maritime worker who spent over thirty percent (30%) of the time working on a vessel or fleet of vessels owned or operated by employer A and was injured while performing repairs on a vessel for employer B.
A careful reading of the U.S. Supreme Court cases on seaman status may actually support, not contradict, an argument that a particular maritime worker is a seamen at the time he was injured.
In situations where a maritime worker’s essential job duties have changed from a land based job to a job involving vessels, the worker may be considered a seaman as long as he spent more than thirty percent (30%) of his time working on vessels in navigation after the change in job duties or a previous termination of employment. The U.S. Supreme Court has instructed courts not to take into consideration the maritime worker’s employment history prior to the change in job duties or termination of employment.