December 14, 2015
Past, Present, and Future Employment Determines Seaman Status
By: Michael A. Orlando and Mike A. Orlando Jr., Meyer Orlando LLC
Determining the employment status of a person injured in a maritime context sets the stage for the entire liability dispute. All sides must examine what company contractually or nominally employed the claimant, whether a company “borrowed” the claimant, the claimant’s duties or job, and the primary location – onshore or offshore – of the injured party’s duties or job before liability for the injury can be determined. The United States Court of Appeals for the Fifth Circuit recently determined that it would review an injured party’s entire work history with both the nominal and the borrowing employer before deciding whether that injured party qualified as a protected seaman under maritime law.
Wilcox v. Wild Well Control, Inc., 794 F.3d 531 (5th Cir. 2015), presented the 5th Circuit with the issue of an injured worker claiming seaman status for Jones Act purposes by virtue of being a borrowed employee assigned to exclusively-offshore duty. Id. at 537. Wilcox was employed by Max Welders as a welder and worked in numerous locations for Max Welders customers. Id. at 534. Some of these locations included fabrication yards, rigs, barges, and vessels; however, Wilcox admitted he spent less than 30% of his time in service of a vessel or group of vessels. Id. Max Welders was hired by Wild Well Control to assist in the decommissioning of an offshore well; Wilcox was one of the welders sent to work on this job. Id. at 534-35. It was estimated that this job would last only 2 months. Id. Wild Well conceded that Wilcox was its borrowed employee during his work on the decommissioning job. Id. at 535. Wilcox was allegedly injured when gasses exploded while he was welding on the well platform. Id. Wilcox and his wife sued Max Welders, Wild Well Control, and Superior Energy Services (the owner of Wild Well) for negligence under the Jones Act, unseaworthiness, and vessel negligence. Id. The district court granted a Max Welders summary judgment motion that argued Wilcox was not a seaman and thus could not bring a Jones Act claim. Id. The district court also granted a similar motion regarding Wilcox’s seaman status from Wild Well and Superior which formed the basis of Wilcox’s appeal to the 5th Circuit. Id.
Wilcox had to meet the Supreme Court’s two prong test for determining seaman status in order to claim the protections offered by the Jones Act: 1) “an employee’s duties must ‘contribute to the function of the vessel or the accomplishment of its mission;’” and, “a seaman 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.” Chandris, Inc. v. Latsis¸ 515 U.S. 347, 368 (1995). In Wilcox, the 5th Circuit focused on the second prong by reviewing whether Wilcox had a substantial connection aboard a vessel. Wilcox, 794 F.3d at 536. The Supreme Court’s Chandris decision generally defines “substantial connection” to a vessel as spending more than 30% of working time aboard ship. Chandris, 515 U.S. at 367.
The undisputed facts made clear that Wilcox spent a significant amount of his working time for Max Welders and its customers on land, but did have some experience at sea. Wilcox, 794 F.3d at 535. If an injured worker claims to be a seaman by virtue of being injured offshore but has a large amount of work-time on land as well, courts will generally review an employee’s entire work history with its current employer to determine if the worker has spent a sufficient amount of time offshore before allowing the worker to claim Jones Act protection. Id., citing Barret v. Chevron USA, Inc., 781 F.2d 1067, 1075 (5th Cir. 1986) (en banc). Wilcox did not spend the required amount of time offshore to be considered a seaman while working for his nominal employer, Max Welders; as such, he argued that the court should review his entire work history with his borrowing employer, Wild Well, in reviewing his status as a seaman. Id. at 538. Wilcox asserted that he started a new job when he was assigned as Wild Well’s borrowed employee; Wild Well conceded that Wilcox was its borrowed employee; Wilcox alleged that the court should view Wild Well as his “current” employer in regards to his work history; and, Wilcox spent 100% of his time as Wild Well’s borrowed employee offshore. Id. Wilcox argued these facts satisfied the Supreme Court’s “substantial connection” test because he spent more than 30% of his time with his borrowed employer aboard a vessel and he should be viewed as a protected Jones Act seaman. Id. The 5th Circuit declined to broaden the substantial connection prong to encompass Wilcox’s argument. Instead, the court focused on the big picture “essence” of what it meant to be a seaman, which has been encapsulated by the Supreme Court as: “[t]he Jones Act remedy is reserved for sea-based maritime employees whose work regularly exposes them to the special hazards and disadvantages to which they who go down to sea in ships are subjected.” Id. at 538, quoting Chandris, 515 U.S. at 370. The 5th Circuit refused to adopt bright-line rules regarding which employer of the injured worker – nominal versus borrowed – it would focus on in its seaman status inquiry; the substantial connection prong should not be focused only on an employee’s actions with its nominal employer nor should it look only to the employee’s actions with its borrowed employer. Wilcox, 794 F.3d at 538. Courts should review an employee’s entire record with its nominal and borrowing employer to get a full picture of the employee’s duties and whether those duties match the “essence” of a Jones Act seaman. Id. After reviewing Wilcox’s time with other Max Welders customers as well as his time with Wild Well, the 5th Circuit determined that Wilcox’s two-month stint as an offshore worker as Wild Well’s borrowed employee did not automatically qualify him as a seaman. Id. at 539.
The court distinguished Wilcox’s facts from an earlier decision, Roberts v. Williams-McWilliams Co., wherein a borrowed employee was deemed a seaman by virtue of his work with his borrowed employer. In Roberts, the employee was under the direct control of his borrowing employer, he was sent to work on a vessel for an indefinite period of time, he was to remain on the vessel until the completion of the project, and he was assigned to the borrowing employer on his second day of work for the nominal employer. Roberts, 648 F.2d at 257-58. Viewing the Roberts employee’s work with his nominal and borrowing employers as a whole, it is clear that his duties substantially connected him to a vessel as his entire time with his nominal and borrowing employer placed him offshore. In contrast: Wilcox worked for 34 different customers on 191 different jobs, onshore and offshore, in his duties as a Max Welders employee before being borrowed by Wild Well; Wilcox’s status as a Wild Well borrowed employee would end after two months when his specific project was complete; and, Wilcox could request to leave the vessel before the project was complete. Wilcox, 794 F.3d at 538-39. By reviewing Wilcox’s entire job record with Max Welders and Wild Well in terms of what it means to be a seaman, the 5th Circuit ultimately affirmed the district court’s dismissal of Wilcox’s Jones Act claims against Wild Well and Superior. Id. at 539.
Alleging a cause of action under the Jones Act will require an injured worker to show the court that his job duties substantially connected him to a vessel for more than 30% of his work time with both his nominal and borrowing employer.