A recurring issue for maritime employers continues to be the uncertain boundary separating the Jones Act and the Longshore and Harbor Workers’ Compensation Act. In this Longshore Insider blog, Jack Martone, Senior Vice President, AEU Advisory Services, breaks down some of the latest cases and decisions in the murky waters between the Jones Act and the Longshore Act.
Once again, let’s discuss the uncertain boundary where the occupational status, injury and illness remedies, and insurance coverage requirements overlap between the Jones Act (negligence) and General Maritime Law (GML) (unseaworthiness and maintenance and cure) on one side and the Longshore and Harbor Workers’ Compensation Act (the Longshore Act) on the other.
The Jones Act and the GML provide a “seaman” or “a crewmember of a vessel” with a personal injury remedy based on negligence (Jones Act) or vessel unseaworthiness (GML). The Longshore Act is a workers’ compensation statute. The two are mutually exclusive in their coverage. The Jones Act and GML only cover seamen, and the Longshore Act covers land-based maritime workers and specifically excludes seamen.
Unfortunately, there’s an overlap in coverage that challenges employers who must have the correct insurance coverage and injured workers who must choose the correct remedy.
The courts, employers, employees, and insurance carriers struggle with the uncertainty on a regular basis. The federal Fifth Circuit Court of Appeals has observed, “Thus, despite our continued insistence that a Jones Act ‘seaman’ and a ‘crew member’ excluded from the Longshore Act are one and the same (in other words that the statutes are mutually exclusive) we recognize that in a practical sense, a ‘zone of uncertainty’ inevitably connects the two Acts”.
In the case of Larry Naquin Sr. v. Elevating Boats, L.L.C., 744 F.3d 927 (5th Cir. 2014) a jury finding of seaman status in favor of a vessel repair supervisor was affirmed on appeal at the Fifth Circuit. The claimant’s primary responsibility was maintenance and repair of the employer’s fleet of lift boats. He spent approximately 70% of his time on board the vessels, but he was injured while operating a land-based crane. He only occasionally went to sea on test runs and while vessels were moving from one place to another in the ship channel.
The jury at the district court found that he was a seaman entitled to the seaman’s remedies under the Jones Act and the GML. The appellate review standard of a jury’s fact finding being what it is, the Fifth Circuit affirmed. (Reviewing the evidence in the light most favorable to the verdict, “We will not disturb a jury’s finding of seaman status unless the facts and the law do not reasonably support its conclusion”).
The Naquin case was perhaps the high-water mark for the “definition” of seaman. The element of exposure to the perils of the sea had been replaced by the “perils of a marine environment”.
NOTE: An unfortunate aspect of this coverage overlap is that if the injured worker had chosen to file a claim with the U.S. Department of Labor (DOL), which administers the Longshore Act, rather than choose the Jones Act remedy, the DOL likely, in my opinion, would have adjudicated his status as a land-based ship repair worker covered by the Longshore Act. The employer is in the paradoxical position of having potential liability to employees concurrently under two mutually exclusive remedies, with no resolution until there is a final adjudication in one or the other forum.
NOTE: The separate adjudicatory systems allow an injured employee to concurrently file a claim for workers’ compensation benefits as a land-based maritime worker while simultaneously filing a lawsuit under the Jones Act where he makes the contrary claim, i.e., that he is a crewmember of a vessel.
Gilbert Sanchez v. Smart Fabricators of Texas, L.L.C., Fifth Circuit No. 19-20506, March 11, 2020, is the case of a welder injured while working on a jacked-up offshore oil drilling rig (a vessel). The injured worker chose to bring a negligence action against his employer under the Jones Act.
NOTE: Mr. Sanchez’s employer did not own or operate any vessels. He worked under contract on other’s vessels. You do not have to own or operate vessels to have a potential Jones Act exposure as the employer of a crewmember.
Was he a seaman, or was he a ship repair worker?
Since we’re revisiting this whole issue, let’s review the U.S. Supreme Court’s test for seaman status from Chandris v. Latsis, 515 U.S. 347 (1995).
It is a two-part test. (1) Did the worker contribute to the mission or function of the vessel or to the accomplishment of its mission, and (2) did the worker have an employment connection to a vessel substantial in terms of both duration and nature. A thirty percent rule of thumb is used with respect to the “duration” element of the substantial relationship inquiry.
The “substantial in nature” element of the seaman status test was at issue in the Sanchez case, as it had been in the Naquin case. Mr. Sanchez met the first part of the test (contribute to the mission or function of the vessel) and the duration element of the second part of the test. In view of the Naquin case’s finding of seaman status for a ship repair supervisor, the welder in the Sanchez case might have been confident of a ruling in his favor on the question of seaman status. It did not go that way. The Fifth Circuit affirmed the district court judge’s holding that Sanchez was not a Jones Act seaman.
There was a major difference in the posture of the two cases, however. In Naquin, the Fifth Circuit affirmed a jury’s factual determination. In Sanchez, the district court had granted summary judgment for the defendant employer as a matter of law, a ruling which an appeals court reviews de novo.
The Fifth Circuit affirmed the district court’s rationale in distinguishing the result in the Naquin case. Specifically, Sanchez worked on drilling rigs only “while they were jacked up on the sea floor, with the body of the rig out of the water and not subject to waves, tides, or other water movement”. Sanchez’s workplace was “stable, flat, and well above the water”. Sanchez did not perform “tasks requiring operating or navigating the rigs”. He was a welder, and he was injured when he “tripped on a pipe welded to the floor, a circumstance unrelated to any perils of the sea”.
Of course, Mr. Naquin worked mostly in a shipping channel, also not subject to waves, etc. He was working on land when he was injured, operating a crane. His work did not take him to sea, and it was generally unrelated to any perils of the sea.
So, we have two ship repair workers, one working mostly on moored vessels in a ship channel, the other on a jack-up oil rig. Neither worker faced the “perils of the sea”. Mr. Naquin convinced a jury that he was a seaman. Mr. Sanchez could not convince a judge.
In the process of issuing its decision, the Fifth Circuit has formulated additional elements for the test for crewmember status:
Does the worker owe his allegiance to the 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?
Has the Sanchez case clarified the application of the Chandris seaman test for workers in the uncertainty zone? The Fifth Circuit has narrowed the applicability of Naquin in the “substantial nature” element of the seaman status test. Presumably, we will see fewer land-based ship repair workers granted crew status.
In the immediate wake of Sanchez, we’ve seen several cases in which the Sanchez factors were used to find lack of seaman status for workers who failed to meet the nature element from the Chandris test.
In Jackson v. Chem Carriers, LLC, (La App. 4th Cir., 2/24/2023), a welder was denied seaman status because his work was not sea-based; there was no sea-going activity.
In Johnson v. Cooper/T. Smith Stevedoring (La App. 5th Cir., 7/14/2023), a longshoreman did not meet crew status because he owed allegiance to his shoreside employer (the stevedore) and his connection to the vessels was for the performance of a discrete task after which he moved on.
In Burton v. Weeks Marine, Inc. (WDLA, 12/12/2023), a worker building a storm surge wall who worked from a crane barge unloading and transferring material to trucks was not a seaman under the Sanchez analysis.
In Bouton v. Manson Construction Company (WDLA, 12/07/2023), a carpenter working on the demolition and building of a dock, working from a “materials barge,” was not a seaman under the Sanchez factors, although this case is scheduled for re-hearing in the Fifth Circuit.
In Rutherford v. Pontchartrain Materials Corp. (EDLA, 5/03/2024), a worker assisting in the loading of aggregate from spudded barges at his employer’s facility was not a seaman.
Most recently, in Bommarito v. Belle Chasse Marine Transportation, LLC (5th Cir., 11/13/2025), a welder did not meet seaman status because there was no sea-going element to his job, and his relationship to the vessel was limited to discrete tasks after which he moved on.
This is a brief list based on a quick survey, but I think that it is safe to assume that the Sanchez factors will be an entrenched part of the test for seaman status at least in the Fifth Circuit going forward, and I think it is likely that this will be adopted in other circuits.
The Uncertainty Zone remains, however. There are many workplace scenarios that fall within the Uncertainty Zone, and there are no easy answers for underwriters (not to mention employers, injured workers, brokers, and claims adjustors). Here are some examples:
Example One: Line Handlers Who Sail With the Vessel
Let’s take the case of workers with the job title “line-handlers”. They are employed by a stevedore company. They tie up vessels to a dock so cargo can be loaded by the stevedore contractor. They travel with the vessel to either a mid-stream cargo storage facility or offshore platform serving as storage for platforms on the outer continental shelf, and once again tie up the vessels. The cargo is then unloaded, again by the stevedore contractor. At both locations, the line-handlers participate in the cargo operation. Are these workers crewmembers, or are they land-based longshoremen? They do meet the 30% duration requirement test (Chandris), and they do travel with the vessels (Sanchez).
Example Two: Traffic Control on Passenger Ferries
These workers are involved in “traffic control”. They direct the loading and unloading of cars onto and off passenger ferries. They travel back and forth with the ferries, but their only job is to get the cars on to and off the ferries in an orderly manner. Are these workers crewmembers? They meet the 30% test.
Example Three: Marine Construction From Work Barges
There is a category of cases that involve marine construction. The employees work on projects, for example, that entail building, repairing, and demolishing bridges, or dock and pier building. The work is frequently done from floating work platforms such as spudded barges or barges designed as work platforms carrying cranes and other construction equipment. Are these workers crew members? Again, these workers usually meet the 30% test.
NOTE: The 30% test, or rule of thumb, is not conclusive. A worker can spend 100% of his time on board vessels and not qualify for crew status.
Case Number Four: The Employer’s Dilemma After Settlement
This is the case of an employee of a barge repair company with the job title “welder-deckhand”. He was fatally injured while working aboard one of the two tugboats owned by the employer. His widow filed suit against the employer under the Jones Act. This suit was settled with the liability carrier without an adjudication of the deceased’s status as a crewmember. The widow then filed an application for survivor’s benefits with the U.S. Department of Labor (DOL) under the Longshore Act. This is the employer’s dilemma. It is very likely that her claim under the Longshore Act would be approved at the DOL, thus allowing the widow a recovery under two mutually exclusive remedies.
Example Five: Short Term Foreign Specialists on Sea Trials
Two Scottish engineers are in the U.S. on a one-month contract to perform an engine overhaul on a vessel. Their work includes several test runs and a sea trial. Would they meet the duration and nature tests for seaman status?
We could go on like this almost indefinitely. New cases arise constantly. I think Sanchez will help in reversing the overbroad application of the crewmember status test. Even with Sanchez tightening the analysis, the coverage divide between the Jones Act and the Longshore Act still leaves many real world job roles in the gray zone. For employers, the safest path is insurance planning that assumes seaman status may not be resolved until a final ruling forces the issue.
If you'd like to read more about the "uncertainty zone," be sure to check out more Longshore Insider blogs here.