For most workers injured on the job the only legal remedy is to pursue a workers' compensation claim against their employer. On the other hand, under the Jones Act, 46 U.S.C. |688 deg., injured seamen are provided with heightened legal protections.1
The protections available are as follows:
- The right to maintenance, cure and unearned wages;
- A claim for negligence against the seaman's employer pursuant to the Jones Act; and
- The right to recover damages from the vessel (in rem) and its owner (in personam) for injuries caused by the unseaworthiness of the vessel.
This protection is available to seamen because of their exposure to the perils of the sea.2 Although the Jones Act broadened seamen remedies, Congress failed to define the term "seaman".
This article is the first in a five-part series which will be published over the upcoming year. Here, the issue of establishing seaman status will be discussed. The next article will discuss the definition of a "vessel in navigation." The third article will address maintenance, cure and unearned wages. Then, unseaworthiness and negligence will be discussed. And, in the final article, the damages available to seamen and their survivors will be outlined.
"Seaman" status has been addressed by many of the lower courts over the years, but it was only after 33 years of silence, that the United States Supreme Court tackled the issue in the case of McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 1991 AMC 913 (1991). Prior to the Wilander decision, seaman status required basically (1) a connection to a vessel in navigation, and (2) an "aid to navigation" function. As you can imagine, this test was applied in a variety of manners.
The Wilander case involved a paint foreman who was injured on an oil drilling platform while assigned to a paint boat. In its decision, the Supreme Court upheld a finding that the paint foreman qualified as a seaman, even though his job duties did not involve any transportation-related functions. In essence, the court concluded that the key to seaman status was the worker's employment-related connection to the vessel. Seaman status could now be established if a worker's duties contributed to the "function of the vessel or the accomplishment of its mission."3
Four years after the Wilander decision, the Supreme Court took the opportunity to further clarify the term "employment-related connection to a vessel in navigation" when it agreed to hear Chandris, Inc. v. Latsis, 132 L.Ed.2d 314 (1995). In its decision, the Supreme Court attempted to address the nature and extent of the "employment-related connection" to a vessel required for seaman status. The Chandris case involved the superintendent engineer of a fleet of six cruise ships. The superintendent's responsibilities included the maintenance and repairing of the fleet's equipment and overseeing the fleet's engineering departments. On occasion, Latsis' duties required that he sail on some of the voyages. During one of these voyages, he sustained a serious eye injury as a result of malpractice by the ship's doctor.
Subsequently, Latsis sued his employer under the Jones Act claiming seaman status. His employer disputed his claim, contending that he was not a member of the vessel's crew, but a land-based employee. At trial, the jury found that Latsis was not a seaman.
On review, the Supreme Court held that the "employment-related connection to a vessel in navigation" necessary for seaman status required a two-part test. First, the worker's duties must "contribute to the function of the vessel or the accomplishment of its mission"; and, second, the worker "must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature."4 The first requirement basically makes all maritime workers who perform the ship's work eligible for seaman status. The second requirement determines which of these maritime workers meet the employment-related connection to a vessel in navigation. The court stated that as a "rule of thumb" "[A] worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act."5 Consequently, a worker who spends only a small fraction of his time working aboard a vessel will be considered a land-based employee and therefore not entitled to seaman status regardless of his duties.
In conclusion, the court held that Latsis fulfilled the two-part test and was a "seaman" under the Jones Act.
Although Wilander and Chandris have clarified the term "seaman", they have left many questions unanswered. This is apparent from several recent lower court applications of the Supreme Court's decisions.
The Ninth Circuit has issued three opinions applying the Chandris test:
In Papai v. Harbor Tug & Barge Co., 67 F.3d 203 (9th Cir. 1995), cert. Granted, 117 S.Ct. 36 (1996), the plaintiff brought an action under the Jones Act after he was injured while painting a tug barge. He was not a permanent employee of the defendant, but rather hired through a maritime union's hiring hall to work in various maritime-related positions on a day-to-day basis. Prior to his injury, he had worked for the defendant on several previous occasions.
The Ninth Circuit Court of Appeals considered the Supreme Court's Chandris decision and concluded that the substantial connection inquiry required consideration of the total circumstances of the plaintiff's employment. In reviewing this inquiry, the Court stated:
There would appear to be no reason that a group of employers who join together to obtain a common labor pool on which they draw by means of a union should not be treated as a common employer for purposes of determining a maritime worker's seaman status. 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.6
After considering the circumstances of the plaintiff's employment, the court reversed the district court's dismissal of Papai's Jones Act claim. As noted above, the U.S. Supreme Court has granted certiorari and maritime practitioners are awaiting the Court's decision with great interest.
In Boy Scouts of America v. Graham, 76 F.3d 1045 (9th Cir. 1996), amended, 86 F.3d 861 (9th Cir. 1996), the district court found as a matter of law that a volunteer mate injured on a ten-day training cruise for Sea Explorers was not a seaman. On appeal, the Ninth Circuit reversed and remanded the lower court's decision, stating that a genuine issue of fact remained as to Graham's status as a seaman. In its decision, the Court stated:
The Supreme Court has expressly rejected what it referred to as the "voyage" test, that is that 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. Chandris, ___ U.S. at ___ __ ___, 115 S.Ct. at 2184-85. Instead the court has endorsed a "status-based" standard stressing that the seaman status belongs to "those maritime workers who form the ship's company." Id. at ___, 115 S.Ct. at 2186.7
In Heise v. Fishing Co. of Alaska, Inc., 79 F.3d 903 (9th Cir. 1996), the court denied seaman status to an assistant engineer who had been working and living aboard a vessel for 30 days and performing maintenance and repairs. The court reasoned that Heise was a land-based worker whose connection with the vessel was to be limited to the time it was undergoing repairs.
The Alaska Supreme Court has also addressed the issue of seaman status in Scott v. Briggs Way Co., 909 P.2d 345 (Alaska 1996). The Court held that a commercial fisherman who was injured while moving a buoy on land prior to the beginning of the fishing season was not a seaman. The Court concluded that Scott's work assignments at the time of his injury were land-based. The Court stated that Jones Act remedies were reserved for sea-based maritime employees whose work regularly exposed them to the special hazards and disadvantages of working at sea.
The following cases have also addressed the issue of seaman status and should be considered: Fisher v. Nichols, 81 F.3d 319 (2d Cir. 1996) (racing yacht captain aboard vessel for one day is a seaman); Thier v. Lykes Bros., Inc., 900 F. Supp. 864 (S.D. Tex. 1995) (Merchant Marine cadet a seaman when injured in an automobile accident); Grayson v. Petro-Drive, Inc., 912 F. Supp. 258 (S.D. Tex. 1996) (held that whether or not a worker was a seaman was a question of fact when the worker performed his duties on vessels not owned by his employer); Tonnesen v. Yonkers Contracting Co., 82 F.3d 30 (2d Cir. 1996); Jones v. United States, 1996 U.S. Dist. LEXIS 1993 (E.D.La. Feb. 15, 1996); Dietrich v. United States, 1995 U.S. Dist. LEXIS 15504 (E.D.La. Oct. 19, 1995); Nix v. Sub Sea Int'l, Inc., 1995 U.S. Dist. LEXIS 14273 (Sept. 20, 1995); and Hardesty v. Rossi, 1995 U.S. Dist LEXIS 18466 (D. Md. Aug. 15, 1995). Dorr v. Maine Maritime Academy, 670 A.2d 930 (Me. 1996); and Caputo v. Clean Harbors, Inc., 630 N.Y.S.2d 816 (N.Y. App. Div. 1995).
The Wilander and Chandris decisions have created many new issues with which the lower courts have struggled. Generally, the issue of seaman status will not surface when representing the traditional seamen injured aboard their assigned vessels. However, representation of many other maritime workers will require careful investigation, inquiry and knowledge of current court decisions defining the term "seaman."
1 The Federal Employers' Liability Act (FELA), 45 U.S.C. | 51, et seq., also provides railroad workers with the right to sue their employer.
2 FELA provides railroaders with heightened legal protections because of the dangerous nature of the railroad industry.
3 Wilander, 498 U.S. at 357.
4 Chandris, 132 L.Ed.2d at 337.
5 Chandris, 132 L.Ed.2d at 339.
6 Papai, 67 F.3d at 206.
7 Boy Scouts of America, 86 F.3d at 866.