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In Bristol-Myers Squibb Co. v. Superior Court of California, No. 16-466 (June 19, 2017), the U.S. Supreme Court held that a state court does not generally have specific personal jurisdiction to entertain class-action claims by non-resident plaintiffs against a company headquartered outside of the forum state (here Bristol-Myers Squibb was not based in California). In future class action claims against nationwide corporate defendants, it appears that the U.S. Supreme Court is generally requiring piecemeal litigation in each state where a plaintiff was injured, instead of allowing for a single consolidated class action in a single state court lawsuit.
JONES ACT - TABLE OF CONTENTS
The Jones Act
II. PERSONS ENTITLED TO RECOVER A. Seamen 1. General Principles b. Tests for Determining Status as Seaman
If individual is to be member of crew, three requirements must be met: (1) vessel must be in navigation; (2) there must more or less permanent connection with vessel; and (3) worker must be aboard primarily to aid in navigation. South Chicago Coal & Dock Co. v Bassett (1940) 309 US 251, 84 L Ed 732, 60 S Ct 544 (diverged from Gianfala v Texas Co., 350 US 879, 100 L Ed 775, 76 S Ct 141, reh den 350 US 960, 100 L Ed 834, 76 S Ct 346 and (not followed Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067))); Munguia v Chevron Co., U.S.A. (1985, CA5 La) 768 F2d 649, reh den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 580, 106 S Ct 1272;.
In evaluating whether worker is "seaman," court should not employ "snapshot" test for seaman status, which test would inspect situation as it exists only at instant of injury; rather, court must look at more enduring relationship, employing total circumstances of employment. Chandris, Inc. v Latsis (1995, US) 132 L Ed 2d 314, 115 S Ct 2172, 95 CDOS 4499, 95 Daily Journal DAR 7769, 17 BNA OSHC 1257, 1995 AMC 1840.
With respect to determining whether individual--who allegedly was injured while assigned to paint housing structure of tug at dockside, which assignment was obtained through union hiring hall--was seaman under 46 USCS Appx § 688(a), question is what connection individual had in actual fact to vessel operations, not what agreement between employer and union says. Harbor Tug & Barge Co. v Papai (1997, US) 137 L Ed 2d 800, 117 S Ct 1535, 97 CDOS 3507, 97 Daily Journal DAR 6021, 1997 AMC 1817, 10 FLW Fed S 433.
In order to pose jury question on issue of seaman status, plaintiff must present evidence that (1) injured workman was assigned permanently to vessel, including special purpose structure not usually employed as means of transport by water but designed to float on water, or performed substantial part of his work on vessel, and (2) capacity in which he was employed or duties which he performed contributed to function of vessel, accomplishment of its mission, or operation or welfare of vessel in terms of maintenance during its movement or anchorage for future trips. Offshore Co. v Robison (1959, CA5 La) 266 F2d 769, 75 ALR2d 1296 (disagreed with Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180); and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067)); Balfer v Mayronne Mud & Chemical Co. (1985, CA5 La) 762 F2d 432.
To be Jones Act seaman entitled to sue for negligence, as well as breach of warranty of seaworthiness, but not entitled to longshoremen's compensation, vessel must be in navigation, there must be more or less permanent connection with ship, and worker must be aboard naturally and primarily as aid to navigation. Salgado v M. J. Rudolph Corp. (1975, CA2 NY) 514 F2d 750.
Test to determine seaman status asks whether (1) vessel is in navigation, (2) employee has more or less permanent connection with vessel, and (3) employee was on board vessel primarily in aid of navigation. Petersen v Chesapeake & O. R. Co. (1986, CA6 Mich) 784 F2d 732. Rackus v Moore-McCormack Lines, Inc. (1949, DC Pa) 85 F Supp 185; Baker v Pacific Far East Lines, Inc. (1978, ND Cal) 451 F Supp 84; Wilkes v Mississippi River Sand & Gravel Co. (1953, CA6 Tenn) 202 F2d 383, cert den 346 US 817, 98 L Ed 344, 74 S Ct 29; Nelson v Greene Line Steamers, Inc. (1958, CA6 Ky) 255 F2d 31, cert den 358 US 867, 3 L Ed 2d 100, 79 S Ct 100; Bodden v Coordinated Caribbean Transport, Inc. (1966, CA5 Fla) 369 F2d 273, 5 ALR Fed 668; Garcia v Queen, Ltd. (1973, CA5 Fla) 487 F2d 625 17 FR Serv 2d 1593; Noack v American S.S. Co. (1974, CA6 Ohio) 491 F2d 937; Salgado v M. J. Rudolph Corp. (1975, CA2 NY) 514 F2d 750; Lewis v Roland E. Trego & Sons, Inc. (1973, DC Md) 359 F Supp 1130, affd in part and vacated in part on other grounds (CA4 Md) 501 F2d 372; Klarman v Santini (1973, DC Conn) 363 F Supp 910, affd (CA2 Conn) 503 F2d 29, cert den 419 US 1110, 42 L Ed 2d 807, 95 S Ct 785; Griffith v Wheeling Pittsburgh Steel Corp. (1974, WD Pa) 384 F Supp 230, revd on other grounds (CA3 Pa) 521 F2d 31, cert den 423 US 1054, 46 L Ed 2d 643, 96 S Ct 785; Mietla v Warner Co. (1975, ED Pa) 387 F Supp 937; Garcia v Universal Seafoods, Ltd. (1978, WD Wash) 459 F Supp 463; Lotzman v Oxyness Shipping Co. (1978) 93 Misc 2d 461, 402 NYS2d 964.
Under both Jones Act and general maritime law, status as seaman depends on 3 factors: (1) vessel on which claimant employed must be in navigation; (2) claimant must have more or less permanent connection with vessel; and (3) claimant must be aboard primarily to aid in navigation. Omar v Sea-Land Service, Inc. (1987, CA9 Wash) 813 F2d 986.
Under "no snapshot" doctrine, court does not evaluate worker's connection to vessel or fleet at moment of injury; court must consider his intended relationship, as if he had completed his mission uninjured. Foulk v Donjon Marine Co. (1998, CA3 NJ) 144 F3d 252, 40 FR Serv 3d 980.
Trial judge abused his discretion in permitting plaintiff to present evidence of prior work history unrelated to defendant employer. Shade v Great Lakes Dredge & Dock Co. (1998, CA3 Pa) 154 F3d 143.
There is three-part test determining issue of whether individual is "member of crew" of "vessel": (1) allegedly unseaworthy vessel must have been vessel in navigation; (2) plaintiff must have been aboard vessel primarily to perform duties which contributed to function of vessel or accomplishment of mission; and (3) plaintiff must have had more or less permanent connection with vessel or with specific group of vessels. Buna v Pacific Far East Line, Inc. (1977, ND Cal) 441 F Supp 1360. Yelverton v Mobile Laboratories, Inc. (1985, SD Miss) 608 F Supp 400, affd (CA5 Miss) 782 F2d 555.
119. Aiding in navigation
Employee need not aid in navigation of vessel in order to qualify as "seaman" under Jones Act; therefore, paint foreman, whose employment duties included sandblasting and painting of piping located on oil drilling platforms who was injured while inspecting pipe on such platform was "seaman" within meaning of Act. McDermott Int'l, Inc. v Wilander (1991, US) 112 L Ed 2d 866, 111 S Ct 807, 91 CDOS 1271, 91 Daily Journal DAR 2056.
Person working aboard ship cannot be seaman for purposes of 46 USCS Appx § 688 if ship is not in navigation. Antus v Interocean S.S. Co. (1939, CA6 Ohio) 108 F2d 185.
Term "aiding in navigation" is not confined to those who can "hand, reef and steer" but applies to all whose duties contribute to operation and welfare of vessel. Wilkes v Mississippi River Sand & Gravel Co. (1953, CA6 Tenn) 202 F2d 383, cert den 346 US 817, 98 L Ed 344, 74 S Ct 29.
To be considered "seaman" for purposes of recovery under Jones Act, 46 USCS Appx § 688, nature of claimant's duties aboard vessel is not controlling and he need not be serving vessel in strictly navigational capacity. Weiss v Central R. Co. (1956, CA2 NY) 235 F2d 309.
With respect to determination of seaman's status under 46 USCS Appx § 688, there is no absolute requirement that claimant actually cause vessel to move. Mietla v Warner Co. (1975, ED Pa) 387 F Supp 937.
Person is not aboard naturally and primarily as aid to navigation and therefore not Jones Act -46 USCS Appx § 688- seamen where person was never on barge while barge was moving, boarded barge only for purpose of operating crane, of performing maintenance work, and, on rare occasions, for purpose of handling lines or tying up barge and where further person did not sleep overnight on barge. McSweeney v M.J. Rudolph Corp. (1983, ED NY) 575 F Supp 746.
Widow's 46 USCS Appx § 688 claim against U.S. must fail, where husband was killed when overcome by fumes while cleaning and venting various tanks and cofferdams on naval vessel pursuant to his employer's contract with Navy, because these duties did not contribute to transportation function of ship and were not "aid to navigation," and husband therefore was not "seaman." Minnick v United States (1990, ED Va) 767 F Supp 115, 1991 AMC 1284.
When crew of vessel is referred to, those persons are naturally and primarily meant who are on board her aiding in her navigation without reference to nature of arrangement under which they are on board. Shore Fishery, Inc. v Board of Review (1941) 127 NJL 87, 21 A2d 634, 1942 AMC 1558.
Although claimant must be permanently assigned to vessel and his duties must contribute to mission of vessel in order to qualify as seaman under Jones Act, claimant's duties need not be related to navigation of vessel. Allen v Mobile Interstate Piledrivers (1985, Ala) 475 So 2d 530.
120. Continuous attachment
Duration of service for and upon vessel may determine whether shipboard work which is not normally performed by ship's company makes worker crewman, but lack of long continued attachment to vessel cannot, as matter of law, serve to deny seaman's status under Jones Act, 46 USCS Appx § 688, to employee who is injured while assigned to and performing normal crew service. Mach v Pennsylvania R. Co. (1963, CA3 Pa) 317 F2d 761; Petition of Read (1963, SD Fla) 224 F Supp 241.
Evidence of sporadic contacts for brief periods of time with water-borne vessels is insufficient to support finding of seaman status under Jones Act, 46 USCS Appx § 688; it must be shown that workman performs significant part of his work aboard ship with at least some degree of regularity and continuity. Holland v Allied Structural Steel Co. (1976, CA5 Miss) 539 F2d 476, reh den (CA5 Miss) 542 F2d 1173 and cert den 429 US 1105, 51 L Ed 2d 557, 97 S Ct 1136.
Employee who is not permanently assigned to any particular vessel or fleet of vessels cannot be considered "seaman" for purpose of Jones Act. Bach v Trident S.S. Co. (1991, CA5 La) 947 F2d 1290.
Real test of coverage under Jones Act, 46 USCS Appx § 688, is not whether claimant is seaman assisting in navigation of vessel or whether vessel itself is plying seven seas; real test is whether claimant is more or less permanently employed aboard vessel in capacity which contributes to accomplishment of vessel's mission; for example cooks, drillers, and musicians employed aboard vessel on more or less permanent basis may be covered by Jones Act. Perez v Marine Transport Lines, Inc. (1958, DC La) 160 F Supp 853.
It is not necessary that employee live aboard vessel in order to acquire status of seaman, he need only be more or less permanently attached to vessel, including special purpose structure or perform substantial part of his work aboard such vessel and, secondly, capacity in which he is employed or duties which he performs must contribute to function of vessel or to accomplishment of its mission or operation or welfare of vessel in terms of maintenance during movement or during anchorage for other trips. Chenevert v Clinch Drilling Co. (1967, ED La) 273 F Supp 943.
Employee may be seaman although variously assigned to several different vessels from time to time; and seamen who are injured on shore while engaged in temporary or fill-in work for their employers are covered by Jones Act, 46 USCS Appx § 688. Taylor v Packer Diving & Salvage Co. (1971, ED La) 342 F Supp 365, affd (CA5 La) 457 F2d 512, reh den (CA5 La) 471 F2d 650.
Since Fifth Circuit established test for seaman status under Jones Act while employer's motion for judgment n.o.v. was pending, coiled tubing operator, killed after falling from platform aboard ship, was held not to be seaman under Jones Act where overall, only about 5% of his work was done aboard vessels, since seaman status is determined in context of entire employment with current employer. Ward v Reeled Tubing, Inc. (1986, ED La) 637 F Supp 33.
121. --Particular circumstances
Employee was not more or less permanently conntected with vessel where his presence on vessel was only for purpose and duration of loading freighter alongside and he ate and slept ashore. Salgado v M. J. Rudolph Corp. (1975, CA2 NY) 514 F2d 750.
Employee does not meet continuous attachment requirement for status as seaman under Jones Act, 46 USCS Appx § 688, where during his employment he spent less than 15 percent of his total time onboard vessel. Davis v Hill Engineering, Inc. (1977, CA5 Tex) 549 F2d 314, reh den (CA5 Tex) 554 F2d 1065 and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).
Roustabout injured while unloading pipe from barge was not seaman within meaning of Jones Act (46 USCS Appx § 688) where his time of employment was only 28 workdays of which only one was at sea and where employee had never journeyed with any vessel to its destination to unload cargo and had never eaten or slept on board any vessel. Stokes v B. T. Oilfield Services, Inc. (1980, CA5 La) 617 F2d 1205.
Welder's helper injured while repairing offshore structure had permanent connection with vessel in navigation for purposes of establishing his status as seaman, where helper spent approximately 70 to 80 percent of his time on jack-up barge positioned alongside caisson that provided work area for crew, and where caisson was entirely isolated structure too small to accommodate workers on it. Barrett v Chevron, U.S.A., Inc. (1985, CA5 La) 752 F2d 129, different results reached on reh, en banc (CA5 La) 781 F2d 1067.
Permanent connection requirement for seaman status was satisfied by evidence that machinist repaired equipment while aboard car ferries sailing between ports and performed almost all duties aboard vessel. Petersen v Chesapeake & O. R. Co. (1986, CA6 Mich) 784 F2d 732.
Sanitation worker who was injured at sanitation barge unloading facility may maintain action against city under 46 Appx USCS § 688, where worker served as member of digger gang whose duties included attaching and detaching boatlines of, fighting fires on, and cleaning up loaded and unloaded barges, because whether worker was seaman under § 688 is question of fact since case law does not unequivocally require that seaman be substantially connected to vessel or group of vessels as opposed to being connected to vessel or group of vessels on steady basis. Buccellato v New York (1992, ED NY) 808 F Supp 967.
122. Nature of work
Whether person is "seaman" within meaning of 46 USCS Appx § 688 depends largely on facts of particular case and activity in which he was engaged at time of injury. Desper v Starved Rock Ferry Co. (1952) 342 US 187, 96 L Ed 205, 72 S Ct 216, reh den 342 US 934, 96 L Ed 695, 72 S Ct 374.
Work done by employee is crucial in determining whether his status is such as to permit recovery for personal injuries in action under 46 USCS Appx § 688. Braen v Pfeifer Oil Transp. Co. (1959) 361 US 129, 4 L Ed 2d 191, 80 S Ct 247.
Worker is not considered to be "seaman" under Jones Act simply because worker is doing seaman's work at time of injury; seaman status under Jones Act is not coextensive with seamen's risks. Chandris, Inc. v Latsis (1995, US) 132 L Ed 2d 314, 115 S Ct 2172, 95 CDOS 4499, 95 Daily Journal DAR 7769, 17 BNA OSHC 1257, 1995 AMC 1840.
Employee's prior work history with particular employer may not affect inquiry whether employee is seaman under 46 USCS Appx § 688(a), if employee was injured on new assignment with same employer which involved different essential duties from previous assignments; inquiry into nature of duties for seaman-status purposes may concentrate on narrower, not broader, period than entire course of employment with current employer. Harbor Tug & Barge Co. v Papai (1997, US) 137 L Ed 2d 800, 117 S Ct 1535, 97 CDOS 3507, 97 Daily Journal DAR 6021, 1997 AMC 1817, 10 FLW Fed S 433.
Recovery under 46 USCS Appx § 688 requires affiliation with "vessel", either as crew member or as one injured aboard doing seaman's work. Powers v Bethlehem Steel Corp. (1973, CA1 Mass) 477 F2d 643, reh den (CA1 Mass) 483 F2d 963 and cert den 414 US 856, 38 L Ed 2d 106, 94 S Ct 160.
One who works aboard ship is usually considered seaman if his duties are essential to some purpose of vessel; work need not be in actual aid of navigation. Lewis v Roland E. Trego & Sons (1974, CA4 Md) 501 F2d 372.
Issue of injured worker's status as "seaman" should be addressed with reference to nature and location of occupation taken as whole; fact that worker may have been injured aboard vessel while performing task that would normally be handled by member of ship's crew is not alone determinative of "seaman" status. Longmire v Sea Drilling Corp. (1980, CA5 La) 610 F2d 1342, reh den (CA5 La) 615 F2d 919.
Once it is established that worker is seaman, it is not necessary that task he performs at time he is injured be related to service of vessel. Savoie v Otto Candies, Inc. (1982, CA5 La) 692 F2d 363, 12 Fed Rules Evid Serv 269.
To qualify as seaman under 46 USCS Appx § 688, claimant must be permanently assigned to or perform substantial part of his work on vessel, and capacity of his employment must contribute to function of vessel, its mission, operation, or its welfare. Wallace v Oceaneering International (1984, CA5 La) 727 F2d 427.
Worker claiming seaman status under 46 USCS Appx § 688 must establish that he is assigned permanently to vessel in navigation or performs substantial part of his work on vessel or fleet of vessels, and that his work contributes to function of vessel or to accomplishment of its mission. Lormand v Superior Oil Co. (1987, CA5 La) 845 F2d 536, 1988 AMC 2362, cert den (US) 98 L Ed 2d 774, 108 S Ct 739, 1988 AMC 2400.
Claimant may not recover under Jones Act (46 USCS Appx § 688), where, in 2-year period prior to accident, he had been out on yawl not more than half-dozen times, and was only one of number of persons that owner called on to crew vessel, even though owner may have promised to include him in trans-Pacific voyage in future, because claimant is not seaman since his connection to yawl was not substantial in terms of its duration or nature. Xanadu Maritime Trust v Meyer (1998, ND Cal) 21 F Supp 2d 1104, 99 Daily Journal DAR 2933.
Self-employed compass adjuster was not seaman under 46 USCS Appx § 688 because his connection with vessel was temporary. Lotzman v Oxyness Shipping Co. (1978) 93 Misc 2d 461, 402 NYS2d 964.
123. --Particular duties
Decedents whose duties consisted of spreading and leveling gravel in barges, where it was deposited by conveyer belt from dredge, and who lived on dredge boat along with rest of men employed, not being required to live aboard, but not being charged anything for their quarters or board, were members of crew and entitled to recovery under 46 USCS Appx § 688. Wilkes v Mississippi River Sand & Gravel Co. (1953, CA6 Tenn) 202 F2d 383, cert den 346 US 817, 98 L Ed 344, 74 S Ct 29.
In action by structual welder on offshore construction job who was injured while attempting to lift padeye used in salvage of offshore drilling platform, summary judgment for defendant is improperly granted where genuine issue of fact exists as to whether structural welder working aboard derrick barge performed work which constributed to function of barge and whether he is "permanently assigned" to fleet of derrick barges operated by defendant. Ardoin v J. Ray McDermott & Co. (1981, CA5 La) 641 F2d 277, reh den (CA5 La) 646 F2d 566 and later app (CA5 La) 684 F2d 335, 11 Fed Rules Evid Serv 843.
Under Jones Act, plaintiff's status as seaman is determined at time of injury; determination of machinist's status as seaman at time of his exposure to asbestos was not error since injury in asbestos-related cases occurs when asbestos fibers are inhaled even though injury does not manifest itself as asbestosis until many years later. Petersen v Chesapeake & O. R. Co. (1986, CA6 Mich) 784 F2d 732.
Rule that status of employee whose regularly assigned duties require him to divide his time between vessel and land is to be determined in context of his entire employment with his current employer applies unless employee's permanent job assignment has changed during course of employment by his present employer. Lormand v Superior Oil Co. (1987, CA5 La) 845 F2d 536, 1988 AMC 2362, cert den (US) 98 L Ed 2d 774, 108 S Ct 739, 1988 AMC 2400.
Activity of plaintiff at time of injury is only one factor in analysis of whether or not that individual, seeking damages under Jones Act (46 USCS Appx § 688), is engaged in occupation covered by Longshore and Harbor Workers' Compensation Act (33 USCS § 905) and thus ineligible for Jones Act benefits; general issue of material fact exists as to plaintiff's status as seaman, where, at time of accident, plaintiff was either on shore constructing new crew quarters for barge or on shore loading barge with sand for subsequent pipelaying job offshore, and plaintiff also maintains that he spent approximately 90 percent of his employment time with employer offshore onboard barge as member of crew of that barge, and employer does not dispute that plaintiff's job title for purposes of receiving compensation was crane operator onboard barge. Thibodeaux v Torch, Inc. (1988, CA5 La) 858 F2d 1048, reh den, en banc (CA5 La) 862 F2d 874.
Employee was Longshore and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.) longshoreman rather than Jones Act (46 USCS Appx § 688) seaman when injured because he was promoting loading and unloading of cargo when injured and for 2 months preceding injury spent only 2 days engaged in seaman's work and remaining days on shore conducting vessel repairs. Chauvin v Sanford Offshore Salvage, Inc. (1989, CA5 La) 868 F2d 735, 1989 AMC 1380.
Dismantling of crane was not operation involving loading of cargo when crane had not yet become cargo, because it was not yet in course of being loaded on barges in its component parts; therefore, dismantling of crane under such circumstances was not in nature of work traditionally performed by seamen, but was rather work performed by riggers or shoreside workers. Re Smith-Rice #4 (1968, DC Cal) 323 F Supp 44.
In personal injury action brought by power plant operator against employer under Jones Act (46 USCS Appx § 688) and general maritime law arising out of injury to plaintiff while temporarily assigned to one of defendant's fixed drilling platforms, plaintiff is seaman within meaning of Jones Act (46 USCS Appx § 688) where plaintiff's normal job assignment is on submersible drilling platform designed to be towed from drilling position to drilling position, where plaintiff is temporarily assigned to fixed drilling platform, and where plaintiff is to be transferred to movable drilling platform as soon as feasible; movable drilling platforms are vessels for purposes of Act whereas permanently fixed platforms are not, and once it is established that worker is seaman, Act permits worker to recover for injuries received while off vessel, and temporary assignment of plaintiff to fixed platform does not divest him of status as seaman. Wilkerson v Teledyne Movible Offshore, Inc. (1980, ED Tex) 496 F Supp 1279.
Welder employed as platform based worker who occasionally utilized vessel for purposes of transportation to work site is not seaman since he has no duties regarding operation and maintenance of vessel, but is part of welding crew not crew of vessel. Welch v Elevating Boats (1981, ED La) 516 F Supp 1245.
There is evidentiary basis for case to go to jury on issue of plaintiff's seaman status if (1) there is evidence that injured workman was assigned permanently to vessel, including special purpose structures not usually employed as means of transport by water but designed to float on water, or performed substantial part of his work on vessel and (2) capacity in which he was employed contributed to function of vessel or to accomplishment of its mission or to operation of welfare of vessel in terms of its maintenance during its movement or during anchorage for its future trips. Yelverton v Mobile Laboratories, Inc. (1985, SD Miss) 608 F Supp 400, affd (CA5 Miss) 782 F2d 555.
Injured worker does not state claim under 46 USCS Appx § 688, where worker performed tests on pipe and oil field casings, spent less than 10 percent of his time on vessels, and was never permanently assigned to any vessel or identifiable fleet of vessels, because worker is not "seaman," notwithstanding that he was injured while on ship near offshore drilling platform. Bailey v Global Marine, Inc. (1989, SD Tex) 714 F Supp 235.
Injured diver is "seaman" entitled to bring claim under Jones Act (46 USCS Appx § 688), where diver logged total of 69 hours over course of 3-week period as member of dive team on tugboat used to transport workers and as station for underwater work of replacing submarine hose at oil refinery just prior to suffering "bends" while on dive for project, because nature of his work and its dependence on vessel satisfy "permanent connection with vessel" prong of seaman test. Kjar v American Divers (1991, DC Hawaii) 851 F Supp 388, 1994 AMC 522.
Barge pilot who was injured while piloting barge by excavator operator is seaman under Jones Act, where although pilot spent only one-fourth to one-fifth of his time piloting barge, during that time he alone was responsible for navigation and operation of barge, because pilot spent substantial amount of time performing traditional seaman's duties that would normally be performed by crew member. Viator v Gordon's Trucking Co. (1995, WD La) 875 F Supp 369.
Offshore worker was not "seaman" under 46 USCS Appx § 688, where worker performed duties as gauger and operator on wells and platforms, but worker often was transported by crew boat to wells or platforms to perform his job, and fact that worker sometimes piloted crew boats and performed some routine maintenance on them did not establish that he did substantial amount of his work on vessel. Borne v Vintage Petroleum (1996, SD Tex) 949 F Supp 492.
124. Location of work
Land-based workers are not included in class of seamen for purposes of Jones Act or general maritime law. Chandris, Inc. v Latsis (1995, US) 132 L Ed 2d 314, 115 S Ct 2172, 95 CDOS 4499, 95 Daily Journal DAR 7769, 17 BNA OSHC 1257, 1995 AMC 1840.
To qualify for 46 USCS Appx § 688 benefits, injured worker must be on more or less permanent assignment to vessel or performing substantial part of his work aboard vessel. Tipton v Socony Mobil Oil Co. (1963, CA5 Tex) 315 F2d 660, vacated on other grounds 375 US 34, 11 L Ed 2d 4, 84 S Ct 1, reh den 375 US 936, 11 L Ed 2d 268, 84 S Ct 328; Stafford v Perini Corp. (1973, CA1 Mass) 475 F2d 507; Dugas v Pelican Constr. Co. (1973, CA5 La) 481 F2d 773, cert den 414 US 1093, 38 L Ed 2d 550, 94 S Ct 724.
Plaintiff who was shore-based worker hired by independent contractor to do special job in hold of vessel and not employed by owner of vessel is not any sense permanently attached to that vessel and lacks status necessary to sue vessel owner under Jones Act, 46 USCS Appx § 688. Thomas v Peterson Marine Service, Inc. (1969, CA5 La) 411 F2d 592, cert den 396 US 1006, 24 L Ed 2d 499, 90 S Ct 562.
Although worker does not forever remain seaman solely by virtue of having once been one, it does not follow that seaman automatically loses his status when he is temporarily assigned by his employer to duties off vessel; he retains his status so long as he performs substantial part of his work on vessel. Higginbotham v Mobil Oil Corp. (1977, CA5 La) 545 F2d 422 (disagreed with Smith v M/V Captain Fred (CA5 La) 546 F2d 119) as stated in Longmire v Sea Drilling Corp. (CA5 La) 610 F2d 1342, reh den (CA5 La) 615 F2d 919 and (disagreed with Steckler v United States (CA10 Colo) 549 F2d 1372, 38 ALR Fed 188 (disagreed with Smith v United States (CA3 Pa) 587 F2d 1013)) and revd on other grounds 436 US 618, 56 L Ed 2d 581, 98 S Ct 2010, on remand (CA5 La) 578 F2d 565 and reh den 439 US 884, 58 L Ed 2d 200, 99 S Ct 232 and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90) and (disapproved on other grounds Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523, 76 L Ed 2d 768, 103 S Ct 2541, on remand (CA3) 711 F2d 570).
Mechanic for drilling company who worked for several years aboard floating barge rig which was retired from service and at same time mechanic was reassigned to land rig where 3 weeks later he was injured was not a seaman at time claim arose. Smith v Nicklos Drilling Co. (1988, CA5 La) 841 F2d 598.
Under rule that one of criteria for determining whether individual is seaman under Jones Act is whether individual was assigned permanently to vessel, claimant can be permanently assigned to vessel without performing substantial part of his work on vessel. Allen v Mobile Interstate Piledrivers (1985, Ala) 475 So 2d 530.
Land-based maritime workers do not become seaman because they happen to be working on board vessel when they are injured, and seamen do not lose protection under 46 USCS Appx § 688(a) when course of their service to vessel takes them ashore. Schultz v Louisiana Dock Co. (2000, ED La) 94 F Supp 2d 746.
125. --Working on multiple vessels
In deciding whether there is identifiable group of vessels of relevance for purposes of determining whether employee is seaman under 46 USCS Appx § 688(a)--in that one requirement for seaman status is that employee have connection to vessel in navigation, or to identifiable group of such vessels, that is substantial in terms of both duration and nature--question is whether vessels are subject to common ownership or control. Harbor Tug & Barge Co. v Papai (1997, US) 137 L Ed 2d 800, 117 S Ct 1535, 97 CDOS 3507, 97 Daily Journal DAR 6021, 1997 AMC 1817, 10 FLW Fed S 433.
In action by injured employee of company which specialized in setting and removing casing pipe in oil rigs, summary judgment for employer is proper where, although employee is clearly performing duties essential to functions of oil rig, he fails to show any permanent assignment or performance of substantial part of his duties on either particular rig or any other specified group of vessels but has worked on 40 different rigs, 13 of which were non-vessel fixed platforms, 7 were on land and of remaining rigs he was on 13 only once and never returned to any specific rig more than three times. Guidry v Continental Oil Co. (1981, CA5 La) 640 F2d 523, 31 FR Serv 2d 443, cert den 454 US 818, 70 L Ed 2d 87, 102 S Ct 96 and (disapproved on other grounds Scindia Steam Navigation Co. v De Los Santos, 451 US 156, 68 L Ed 2d 1, 101 S Ct 1614) as stated in Helaire v Mobil Oil Co. (CA5 La) 709 F2d 1031.
Wire line engineer eligible to work on any one of 140 vessels and 67 platforms who in course of employment had worked on 30 different vessels was not permanently attached to nor performing substantial part of his work on identifiable group or fleet of vessels and therefore was not seaman. Ardleigh v Schlumberger, Ltd. (1987, CA5 La) 832 F2d 933.
Employer who hires men to work on water on vessels engaged in navigation and permits them to have permanent connection with vessel as to expose them to same hazards of marine service as those shared by all aboard should not be permitted to exculpate himself from responsibility for negligence under Jones Act, 46 USCS Appx § 688, on thesis that employees' duties were not confined to single ship but involved many ships. Mach v Pennsylvania R. Co. (1962, WD Pa) 207 F Supp 233, affd (CA3 Pa) 317 F2d 761.
Where plaintiff's connections with defendant's vessels was clearly sporadic and he failed to identify barge or group of barges to which he was regularly assigned or to which he had any degree of continuing responsibility, plaintiff is not "seaman" within meaning of 46 USCS Appx § 688. Baker v Pacific Far East Lines, Inc. (1978, ND Cal) 451 F Supp 84.
126. --Living off vessel
Employee was not more or less permanently connected with vessel where his presence on vessel was only for purpose of loading freighter and he ate and slept ashore. Salgado v M. J. Rudolph Corp. (1975, CA2 NY) 514 F2d 750.
It is not necessary that employee live aboard vessel in order to acquire status of seaman, he need only be more or less permanently attached to vessel. Chenevert v Clinch Drilling Co. (1967, ED La) 273 F Supp 943.
Fact that plaintiff was injured on pier was of no relevance with respect to his seaman's status under 46 USCS Appx § 688, and his seaman's status was not denied as matter of law because he lived, ate, and slept ashore. Mietla v Warner Co. (1975, ED Pa) 387 F Supp 937.
127. Place of injury
46 USCS Appx § 688 has provided right of recovery for seamen against their employers for negligence resulting in injury or death, right which follows from seaman's employment status and not limited to injury or death occurring on high seas. Moragne v States Marine Lines, Inc. (1970) 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906.
Seamen can recover under 46 USCS Appx § 688 for injury suffered in course of ship's services, whether on land or sea. Re Dearborn Marine Service, Inc. (1974, CA5 Tex) 499 F2d 263, 30 ALR Fed 499, reh den (CA5 Tex) 512 F2d 1061, and cert dismd 423 US 886, 46 L Ed 2d 118, 96 S Ct 163.
46 USCS Appx § 688 has no application where plaintiff was working on land at time he was injured. Seifort v Keansburg Steamboat Co. (1937, DC NY) 20 F Supp 542, 1937 AMC 821.
Seamen who are injured on shore while engaged in temporary or fill-in work for their employers are covered by Jones Act. Taylor v Packer Diving & Salvage Co. (1971, ED La) 342 F Supp 365, affd (CA5 La) 457 F2d 512, reh den (CA5 La) 471 F2d 650.
Once it is established that worker is seaman, Act permits worker to recover for injuries received while off vessel. Wilkerson v Teledyne Movible Offshore, Inc. (1980, ED Tex) 496 F Supp 1279.
Seaman is not entitled to recover under 46 USCS Appx § 688 for injury occurring on land, even though it occurred while unloading coal from barge to tipple, injured seaman being crane operator working about ninety feet from water's edge on railroad track. Nixon v Raymond City Coal & Transp. Co. (1939) 280 Ky 743, 134 SW2d 633.
128. --On dock or pier
Seaman injured on wharf on Puerto Rico while painting side of American vessel could not sue under 46 USCS Appx § 688, but was limited to workmen's compensation act of Puerto Rico, since such injuries occurring on land are under law of land. Esteves v Lykes Bros. S.S. Co. (1934, CA5 Tex) 74 F2d 364, cert den 295 US 751, 79 L Ed 1695, 55 S Ct 830.
So long as vessel is upon navigable waters, injured seaman may recover for injuries suffered while on wharf. Griffith v Wheeling Pittsburgh Steel Corp. (1975, CA3 Pa) 521 F2d 31, cert den 423 US 1054, 46 L Ed 2d 643, 96 S Ct 785.
Fact that plaintiff was injured on pier was of no relevance with respect to his seaman's status under 46 USCS Appx § 688. Mietla v Warner Co. (1975, ED Pa) 387 F Supp 937.
Plaintiff was not seaman within meaning of 46 USCS Appx § 688 where at time of injury he was shoreside worker, performing maintenance on docked vessels, and had been so employed for 3 to 4 months even though prior to this time he was employed as seaman aboard vessel. White v Louisiana Menhaden Co. (1980, ED La) 498 F Supp 126.
JONES ACT - TABLE OF CONTENTS