Longshore Act question number 4 was discussed on the AEU Longshore Blog back on March 31, 2010. It’s finally occurred to me that the previous discussion needs to be updated.
What is a vessel?
Neither the Longshore and Harbor Workers’ Compensation Act nor the Jones Act defines exactly what a vessel is, although the question is central to key issues under both laws.
The Longshore Act’s definition in section 2(21) (33 U.S.C. 902(21)) states, “Unless the context requires otherwise, the term ‘vessel’ means any vessel upon which or in connection with which any person entitled to benefits under this Act suffers an injury or death arising out of or in the course of his employment ….”
Parenthetical Note: Section 2(21) quoted above refers to an injury or death “arising out of or in the course of employment….” Section 2(2), which defines “injury”, states “arising out of and in the course of employment….” Usually the distinction between “and” and “or” is significant. But in this context is it a distinction without a difference? Is it just a case of careless phrasing? That’s for an other day.
So, “vessel” is defined in the Longshore Act as “any vessel”. That’s no help.
We do know from the case law that whatever “vessel” means, it means the same thing under both the Longshore Act and the Jones Act and general maritime law.
Back on March 31, 2010, I mentioned the then recent U.S. Supreme Court case of Stewart v. Dutra Construction Co., a vessel status case involving the Super Scoop dredge at work digging a tunnel in Boston Harbor. The Court found that the dredge was a vessel, by a broad application of 1 U.S.C. section 3 (1873), which defines a vessel as, ‘every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water”. The decision seemed to suggest that anything that floats and is not permanently affixed to land was a vessel.
There has been new case law on the vessel question from the U.S. Supreme Court, and thus the need for this update.
On January 15, 2013, the Supreme Court decided the case of Lozman v. City of Riviera Beach, Florida. The issue was whether Mr. Lozman’s floating home was a vessel, subject to Admiralty jurisdiction. The federal Eleventh Circuit Court of Appeals had held that it was a vessel, using Stewart’s reasoning. The Supreme Court reversed, holding that the floating home was not a vessel, interpreting the language of 1 U.S.C. section 3 through the eyes of a reasonable observer looking at the practical characteristics of the craft or contrivance. As a result, we have a new vessel status test based on this case.
The test is whether, through the eyes of a reasonable observer, the contrivance is practically, not theoretically, designed as a means of transportation of people or things over water. Of course, this is a case by case test.
The Court itself recognized the nature of the test. It admitted that its approach “is neither perfectly precise nor always determinative…. Nonetheless, we believe the criterion we have used, taken together with our examples of its application here, should offer guidance in a significant number of borderline cases…. Moreover, borderline cases will always exist.”
So, good luck with the Lozman reasonable observer looking for practical capability based on design characteristics test.
What Is a Crewmember?
For the issue of crewmember status, we’re still using the test from the Supreme Court’s 1995 Chandris v. Latsis, Inc. decision. There hasn’t been anything more recent.
To qualify as a crewmember, the employee must:
- Contribute to the function of the vessel or to the accomplishment of its mission, and
- Have an employment connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both duration and nature.
For the “duration” part of the second prong of the test, there is a 30% rule of thumb. If you spend less than 30% of work time “in the service of a vessel” then you are probably not a crewmember.
The substantial “nature” part of the employment connection test is more problematic. This test has not worked too well.
In spite of language in Chandris paying lip service to the necessity of separating land based workers from those sailors who go to sea, in the judicial language, the “perils of the sea” has been replaced by the watered down “perils of the maritime work environment” or similar terminology as a necessary element for seaman status.
We’ve certainly seen many examples of live at home “seamen” qualifying for the seamen’s remedies under the Jones Act and the general maritime law. Construction workers on all manner of special purpose vessels, ship repair and maintenance workers, and even cargo handlers, all of whom in no sense of the word are exposed to the “perils of the sea”, can qualify as daily commuting crewmembers.
There is a recent example of this from the federal Fifth Circuit Court of Appeals (states of TX, LS, MS). In the case of Larry Naquin v. Elevating Boats Inc. a ship repair supervisor was determined by the jury in district court to be a seaman, and this finding was affirmed by the appellate court. The injured worker’s job was ship repair and he worked nearly exclusively on moored vessels in a shipyard canal. He rarely went to sea.
He met the 30% test, because as a ship repair worker he obviously spent most of his time on the ships he was repairing. To find that ship repair work meets the “substantial nature” employment relationship requirement of the Chandris test, however, for a worker who rarely goes to sea, seems very broad. Clearly a worker has an employment relationship with a vessel that he is building or repairing, just as an airplane mechanic has a relationship with the airplane he is repairing, but that doesn’t make the mechanic a pilot.
So, it seems to me that Lozman may have somewhat narrowed the application of the vessel status test, or at least didn’t expand it; some things that float may not be vessels. But the test for crewmember status is becoming more broadly interpreted.
Paradoxically, the Supreme Court’s rejection of the “voyage test” for seaman status, and the Chandris requirement for a substantial employment relationship in terms of duration have prevented workers who actually do go to sea in ships from achieving crewmember status. Workers such as harbor pilots, divers, and oilfield industry service contractors who typically work on successive short contracts on different vessels often have trouble meeting the 30% test with a single vessel or group of vessels under common ownership.
Maybe one of these days we’ll have a better test for crewmember status.