Streamlining Seaman Status in the Fifth Circuit

Fixing a Self-Inflicted Problem

An en banc panel of the Fifth Circuit Court of Appeals recently provided some changes to its prior Jones Act jurisprudence that would bring it in line with Supreme Court intent and precedent.

Prior to its decision in Sanchez v. Smart Fabricators of Tex. LLC, No. 19-20506, 2021 U.S. App. LEXIS 13929 (5th Cir. May 11, 2021) (en banc), the Fifth Circuit lagged behind other circuits in following Supreme Court guidance for establishing how a worker can meet the "nature" element of the substantial connection to a vessel test. Fifth Circuit panels had previously interpreted the Supreme Court's "duties take [a worker] to sea" language from Papai as merely requiring that the worker be exposed to the perils of the sea. ²

The Fifth Circuit had gone so far as to hold that a worker injured while onboard lift boats that were moored, jacked-up, or docked in a shipyard canal qualified as a seaman, in part, because his presence on those lift boats exposed him to the perils of the sea. ³ In Sanchez, the en banc court recognized that its prior interpretation of the nature element did not conform to Supreme Court precedent and sought to reconsider a more fitting test for this circuit.

The Sanchez Facts Undo Prior Confusion

Gilbert Sanchez was employed as a welder by Smart Fab, a contract welding company that, at times, engaged in repairing drilling equipment. Mr. Sanchez spent the vast majority of his time with Smart Fab performing welding work on two jack-up rigs owned by Enterprise Offshore Drilling. Mr. Sanchez spent 72 percent of his time with Smart Fab onboard an Enterprise rig that was moored alongside a dock and undergoing repairs.

Mr. Sanchez walked on and off this vessel each day and commuted to the vessel every day from his home. He then spent 19 percent of his time onboard another Enterprise jack-up barge that was being towed from one block to another in the Gulf of Mexico; it was on this vessel that Sanchez sustained his lawsuit-inducing injury. Both of these jobs were temporary, and Mr. Sanchez was not made a part of the vessels' crew.

Following his injury, Mr. Sanchez sued Smart Fab in Texas state court under the Jones Act. Smart Fab removed the case. In its motion to remand, Mr. Sanchez argued that the Jones Act generally precludes removal. The district court denied his motion to remand and granted Smart Fab's motion for summary judgment by finding that Mr. Sanchez did not qualify as a Jones Act seaman. ⁴

The district court found that, while Mr. Sanchez's welding work contributed to the function of the two Enterprise vessels and that he had spent more than 30 percent of his time with Smart Fab working on the two vessels, he did not qualify as a seaman because he did not spend 30 percent of his time working on any one vessel that was away from a dock. Put another way, 30 percent of his work for Smart Fab did not take him to sea.

On appeal, the Fifth Circuit panel first affirmed the district court's finding. ⁵ But then, on reconsideration, the panel reversed and remanded based on the Endeavor Marine and Naquin "perils of the sea" test precedents. ⁶ In its opinion on reconsideration, the panel prompted the full Fifth Circuit to take this case en banc. A majority of the judges agreed to rehear the case en banc and ultimately decided to once again affirm the district court's original opinion.

The Fifth Circuit Fashions Its Own Test

The overarching question before the en banc court was whether Mr. Sanchez qualified as a seaman under the entirety of Supreme Court Jones Act precedent—the issue was distilled further as to whether Mr. Sanchez had a substantial in nature connection to a vessel or fleet of vessels.

The court concisely reviewed how the Supreme Court's McDermott Int'l, Inc. v. Wilander, 498 U.S. 337 (1991), Chandris, supra, and Papai, supra, decisions affected the determination of whether an individual's work qualified them for land-based or sea-based protections under the mutually exclusive schemes of the Longshore and Harbor Workers Compensation Act (LHWCA) or the Jones Act, respectively. Those cases readily distinguish between land-based workers that sometimes appear on a vessel and those individuals that have an enduring connection to a vessel that is taken to sea. Those cases provided the foundation for the seaman status test that is listed above and used throughout the country.

Next, the court acknowledged that its own decisions following Papai had drifted off course when asked to determine whether a worker had a substantial connection in nature to a vessel. The court admitted that asking whether plaintiffs were subject to the perils of the sea should not be determinative of that portion of the seaman status examination. The Supreme Court had previously remarked that a nonseaman could be exposed to the perils of the sea, but exposure in and of itself did not automatically convert that person to a seaman—something more was needed.

This explains why Papai instructed that workers must go to sea to find protection under the Jones Act. This analysis prompted the Sanchez court to fashion a three-question breakdown of what it means to have a substantial connection in nature to a vessel.

• Does the worker owe his allegiance to the vessel rather than simply to a shoreside employer?
• Is the work sea-based or involve seagoing activity?
• Is the worker's assignment to a vessel limited to the performance of a discrete task after which the worker's connection to the vessel ends, or does the worker's assignment include sailing with the vessel from port to port or location to location?

The court applied these new inquiries to Mr. Sanchez's work and found that he could not show that he had a substantial connection in nature to the two Enterprise vessels. The court summarily ruled out a connection to the Enterprise jack-up that was docked near the shore as nothing about that work was sea-based or would take Mr. Sanchez to sea.

The court also held that he did not have a substantial connection to the Entorprise vessel that was actually out on the Gulf of Mexico because he spent less than 30 percent of his total employment onboard (failing the substantial in duration requirement) and because that work was performed for a discrete, individual job and, after that work was finished, he would not have any other connection to the vessel. The court ultimately held that Mr. Sanchez could not meet the requirements of seaman status and affirmed the district court's judgment.

The New Test

Following this decision, the test in the Fifth Circuit for determining whether a worker qualifies for seaman status under the Jones Act now reads the following.

1. The worker must contribute to the function of the vessel or to the accomplishment of its mission; and
2. A worker must have a connection to a vessel in navigation (or to an identifiable group/fleet of such vessels that is substantial in terms of both its duration and its nature.
   1. Duration: a worker who spends less than about 30 percent of his time in the service of a vessel in navigation (or a fleet of vessels under common ownership or control) should not qualify as a seaman under the Jones Act.
   2. Nature:
      • (1) Does the worker owe his allegiance to the vessel, rather than to a shoreside employer?
      • (2) Is the work sea-based or involve seagoing activity?
      • (3) Is the worker's assignment to a vessel limited to performance of a discrete task after which the worker's connection to the vessel ends, or does the worker's assignment include sailing with the vessel from port to port or location to location?

This common-sense test should provide a level of clarity in separating contractor employees that are onboard a vessel for a specific task with a specific end date from those workers that are more closely related to vessel crew. The former, like Mr. Sanchez, are owed benefits under the LHWCA (but are also barred from suing their employer); the latter may collect maintenance and cure and sue their employer under the Jones Act.

Other Takeaways from This Opinion

The court appeared to draw some bright lines between coverage under the Jones Act and the LHWCA.

In addition to the Jones Act, another important statute is relevant to our inquiry. Congress enacted the Longshore and Harbor Worker's Compensation Act (LHWCA) in 1927 to establish a federal compensation remedy for injuries to certain land-based workers occurring on navigable waters. Generally, coverage under this compensation act excluded from its coverage "a master or member of a crew of any vessel." The LHWCA, therefore, limits the definition of "seaman" in the Jones Act so as "to confine the benefits of the Jones Act to the members of the crew of a vessel plying in navigable waters and to substitute for the right of recovery . . . only such rights to compensation as are given by the LHWCA." Thus, the seaman's remedy is limited to rights granted by the Jones Act, and rights granted to other maritime workers are provided exclusively by the LHWCA. The two remedies are mutually exclusive.

The opinion does not mention the elusive Sieracki seaman and essentially states that if a worker does not qualify for Jones Act status, the worker is automatically limited to the LHWCA framework.

Interestingly, the court did not articulate how the elements of its new substantial in nature test are to interact with each other. Would the outcome change if Mr. Sanchez had spent more than 30 percent of his time onboard the Enterprise vessel in the Gulf of Mexico, even if his time onboard was limited to a discrete task with a specific end date? Those questions will inevitably arise in the first few judicial decisions following Sanchez. In small response, the Sanchez court spent a lot of its focus on the fact that Mr. Sanchez's time onboard was for the purpose of completing a discrete job, and he would not be sailing with the vessel after that work was finished. Like so many Jones Act cases, the specific facts are determinative.

In the end, the court authored a rational approach to distinguishing a seaman's connection to a vessel from that of a land-based worker that just so happens to be on a vessel at the time of injury. The opinions following Sanchez will be interesting to see how courts control the interplay between the new nature elements and whether one element becomes more influential than the others.