This Longshore Insider blog reviews interesting cases decided during calendar year 2023 relevant to the Longshore and Harbor Workers’ Compensation Act (Longshore Act) (33 U.S.C. 901 et seq.). The U.S. Department of Labor’s Benefits Review Board (BRB) and the federal courts decided the cases discussed in this blog. In this blog, I will only cite the cases and highlight the one issue I found most interesting from each. This is the third and final installment of interesting cases decided during calendar year 2023.
- Click here to read Part One: Interesting Cases Decided During Calendar Year 2023
- Click here to read Part Two: Interesting Cases Decided During Calendar Year 2023
Issue: Seaman Status in the Fifth Circuit
Let's catch up on one of our favorite topics – the "Uncertainty Zone" where coverage ambiguities arise between the negligence and unseaworthiness remedies available to injured workers under the Jones Act and the General Maritime Law (GML) on one hand and the workers' compensation remedy provided by the Longshore Act on the other.
The key to navigating in this Zone and identifying the correct exposure for the employer and vessel owner and the correct remedy for the injured worker is determining who is a seaman (crewmember of a vessel) and who is a land-based maritime worker.
The Jones Act and the GML cover seamen, and the Longshore Act expressly excludes crewmembers of a vessel (seamen). Unfortunately, identifying the status of the injured worker frequently must await an adjudication in a court of law or at the U.S. Department of Labor, which administers the Longshore Act. Until then, many cases can go either way.
I thought that some progress had been made in limiting seamen claims by land-based workers when the federal Fifth Circuit Court of Appeals issued its decision in Sanchez (see below). It now appears that the Fifth Circuit is still working its way through this issue.
McDermott International, Inc. v Wilander, 498 US 337 (1991)
Chandris, Inc. v Latsis, 515 US 347 (1995)
These cases from the U.S. Supreme Court established a two-part test for seaman status. First, the seaman must contribute to the mission or function of the vessel and have a substantial employment relationship to a vessel or fleet of vessels under common ownership or control in terms of both nature and duration. For the duration element, courts generally use a 30% rule of thumb, which was the standard two-part test used by the courts until the federal Fifth Circuit Court of Appeals (states of TX, LA, MS) recognized that its jurisprudence had developed to the point where seaman status was being awarded to a broad array of land-based workers such as in the case of a land-based crane operator who was injured when the crane collapsed (Naquin v. Elevating Boats, LLC, 774 F.3d 927 (5th Cir.) 2014.)
Gilbert Sanchez v Smart Fabricators of Texas, LLC, 842 F. 3d 564 (5th Cir., 05/11/2021)
After granting seaman status to Mr. Sanchez, a land-based welder, the Fifth Circuit recognized that perhaps it had gone too far in applying the Chandris test. In an en banc decision, the court established new elements to consider when evaluating the nature element of the test for seaman status.
Sanchez factors:
- Does the worker owe his allegiance to a vessel rather than to a shoreside employer?
- Is the work sea-based or does it involve sea-going activity?
- (a) 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
(b) does the worker's assignment include sailing with the vessel from port to port or location to location?
Following is a scorecard tracking some recent case law:
Bouton v. Manson Construction Company, No. 6:22-cv-5535, 2023 U.S. Dist. LEXIS 218454, WDLA (12/7/23)
A carpenter for a marine construction company who was demolishing a dock and building a new dock while working from a materials barge (vessel) pulling pilings out of the river failed to meet seaman status. Under the Sanchez factors, he failed to meet the nature element of the Chandris test. His work was not sea-based.
Burton v. Weeks Marine, Inc. No. 2:22 – cv – 1111, 2023 U.S. Dist. LEXIS 221378, (WDLA) 12/12/23
A worker building a storm surge wall around an LNG facility working from a crane barge (vessel) unloading material onto trucks did not meet seaman status. He met the duration test under Chandris (30% rule) but not the nature test, again under the Sanchez principles.
Johnson v. Cooper/T. Smith Stevedoring Co., No. 22-30488, 2023 U.S. App. LEXIS, 30488, (5thCir.) 7/14/23
This case on appeal at the Fifth Circuit involved a daily hire longshoreman working in a mid-stream stevedoring operation who failed to meet seaman status under the Sanchez factors. His allegiance was to his shoreside employer, and his work did not involve seagoing activity. Also, his connection to vessels was transitory, involving a discrete task after which his connection to the vessels ended.
So far, so good. But, we need to consider the following case:
Santee v. Oceaneering International, Inc., No. 4:21 – cv – 03489, (SDTX) 2/16/23, affirmed at the Fifth Circuit, 95 F.4th 917 (3/12/24)
An ROV technician who was injured while working on a drillship was not a seaman under the Sanchez factors. His work was sea-based, but his connection to the vessel was transitory, and his allegiance was to his shoreside employer.
This is the First Santee decision. Still, so far, so good. But keep reading.
The Fifth Circuit withdrew its decision in First Santee on May 21, 2024, for panel rehearing. On August 7, 2024, it issued its decision in Second Santee. This time, the court used the phrase "dual allegiance" to recognize that an employee could owe allegiance to both a vessel and a shoreside employer. It also found that the employee's connection to the vessel was "indefinite" and not transitory. So with the dual allegiance, sea-going activity, and non-transitory relationship to the vessel, this ROV technician now had all three of the Sanchez factors in his favor.
Note: In Santee, the issue was removal of the plaintiff's Jones Act suit from state court to federal court. Jones Act lawsuits filed in state court are generally not subject to removal to federal court. In first Santee, the court found that the plaintiff was not a seaman thus, removal was proper. This was reversed in Second Santee, so back to state court.
Conclusion: We now have "dual allegiance," which may be an indication that the Sanchez factors are already being "clarified" and are not particularly in the interests of clarity. Secondly, Santee cannot be considered good news for employers navigating around the "Uncertainty Zone."
Here's what can happen:
Rak v. C-Innovation, LLC, No. 23 – cv – 619, 2024 U.S. Dist. LEXIS 150289 (EDLA), 8/22/24
This is the case of another ROV technician who lost his claim for seaman status as the federal district court granted Summary Judgment for the employer based on the First Santee decision. Four days after this disposition (5/17/24), the Fifth Circuit withdrew its decision in First Santee and subsequently issued its decision in Second Santee. The court in the Rak case immediately granted reconsideration and reversed its grant of Summary Judgment to Rak's employer based on the change in intervening law in the second Santee decision. The case is back for the jury to decide the plaintiff's seaman status, presumably based on whatever extent Second Santee may have modified the Sanchez factors.
There may not be a reason for undue concern. The decisions in the cases of a couple of ROV technicians who spent most of their time aboard vessels don't necessarily mean that the Sanchez factors, as applied to welders, crane operators, longshoremen, etc., will be weakened.
We'll continue following cases regarding these topics and let you know what the courts determine.
Be sure to check the Longshore Insider for updates on all things USL&H, including the latest trends in safety and claims handling, recent Longshore Act court cases, and more.
