Alexander v. Express Energy Operating Services, L.P.: The Fifth Circuit's Voyage Away from Reality and the Seamen Renounced in Its Wake

• Author: Colton V. Acosta
• Position: J.D./D.C.L., 2018. Paul M. Hebert Law Center, Louisiana State University.
• Pages: 1381-1411

Alexander v. Express Energy Operating Services, L.P.: The Fifth Circuit’s Voyage Away from Reality and the Seamen Renounced in Its Wake TABLE OF CONTENTS Introduction ................................................................................ 1382 I. From “One Who Lives His Life upon the Sea” to the Two-Pronged Test ...................................................................... 1387 A. The Lower Courts’ First Formulations ................................ 1389 B. The Supreme Court Drops Anchor to Weigh in on Seaman Status ................................................................. 1390 II. Alexander v. Express Energy Services, L.P.: A Change in Course ................................................................... 1393 A. Procedural History and the Parties’ Arguments................... 1394 B. The Fifth Circuit’s Reasoning and Interpretation of Chandris .......................................................................... 1395 III. Alexander: A Rigid Rule with Unfortunate Consequences ........ 1396 A. How the Fifth Circuit Misinterpreted Chandris .................. 1397 1. How the Fifth Circuit Misinterpreted Chandris Dicta Concerning “On Board a Vessel” .................................. 1399 IV. Suggested Solutions to These Unfortunate Consequences ......... 1401 A. Alexander’s Consequences in the Lower Courts ................. 1401 1. Uniformity and Judicial Efficiency versus Discretion in the Lower Courts ..................................... 1403 B. Alexander’s Consequences for Employees and Employers ..................................................................... 1405 1. What “Work on Board a Vessel” Means ....................... 1405 2. Greater Liability in Tort for Employers Under Alexander ........................................................... 1407 3. The Fifth Circuit Must Clarify Its Decision for Employees and Employers ............................................ 1408 a. The “On Board a Vessel” Requirement Opposes the Purpose of the Jones Act ................................... 1410 Conclusion .................................................................................. 1411 1382 LOUISIANA LAW REVIEW [Vol. 78 INTRODUCTION George, a commercial diver, 1 is employed by Black Mud Diving, Inc. (“Black Mud”). Black Mud is a professional diving company based out of New Orleans, Louisiana, and it partners with Blue Mountain Drilling Co. to assist in its drilling operations. 2 For months at a time, George lives on Black Mud’s various vessels and goes out to numerous drilling rigs to dive and perform underwater operations off the drilling rigs and oil wells. He is not assigned to these vessels, 3 but the vessels transport George and other divers to the drilling rigs and provide a platform from which they work and store their monitoring and diving equipment. George neither assists in the navigation of nor performs other work on any of the vessels. After several Copyright 2018, by COLTON V. ACOSTA. 1. The Louisiana Supreme Court articulated a so-called “diver’s exception” to the jurisprudential requirement that an employee be working for an identifiable fleet of vessels to have seaman’s status in Wisner v. Prof’l Divers of New Orleans , 731 So. 2d 200, 205 (La. 1999). Landry v. Specialty Diving of La., Inc., 299 F. Supp. 2d 629, 634 (E.D. La. 2003), aff’d , 110 Fed. App’x 386 (5th Cir. 2004). The Wisner court identified divers’ work as “inherently maritime.” Wisner, 731 So. 2d at 204. Wisner, however, dealt with a different issue—namely, the identifiable fleet of vessels requirement—and, at least within the Fifth Circuit, divers have only been held to be seaman if they satisfied 30% of their working time on board a vessel. See Willis v. Fugro Chance, Inc., 278 F. App’x 443, 446–47 (5th Cir. 2008) (finding diver did not qualify as a seaman because he did not spend 30% of time on board a vessel); see also Little v. Amoco Prod. Co., 734 So. 2d 933, 939 (La. Ct. App. 1999) (finding diver did not qualify as seaman even though he was on a vessel for 30% of his working time only because of an usual period of employment due to injury); Landry, 299 F. Supp. 2d 629 (finding diver did not qualify as a seaman because he did not spend 30% of time on board a vessel). See Pickle v. Int’l Oilfield Divers, Inc., 791 F.2d 1237, 1240 (5th Cir. 1986) (finding that because diver spent 90% of his working hours on board a vessel, he qualified as a seaman). Other courts, however, have held that divers are seamen even without 30% of work done on a vessel. Rather than focusing on the 30% of time on a vessel requirement, these courts have examined whether the diver was exposed to marine perils and was in service to a vessel or fleet of vessels. See, e.g., Pettis v. Bosarge Diving, Inc., 751 F. Supp. 2d 1222, 1230 (S.D. Ala. 2010) (holding that the diver was a seaman because of the inherently maritime nature of his work and that he worked in the service of the ship). 2. These facts are loosely derived from a Fifth Circuit Court of Appeals case, Wallace v. Oceaneering Int’l , 727 F.2d 427 (5th Cir. 1984), though the facts have been altered to illustrate the problem this Comment addresses. If its facts were the same as here, Wallace would have been overruled by Alexander v. Express Energy Services Operating, L.P., 784 F.3d 1032, 1036 (5th Cir. 2015); thus, these facts highlight the problems for such workers if they were not assigned to the vessels. 3. Wallace was assigned to the vessels. Wallace, 727 F.2d at 430. 2018] COMMENT 1383 months on the vessels, he is paid and then taken back to New Orleans for a few weeks on land, where he works for Black Mud to maintain diving equipment and perform other related tasks. Two days after coming on board on the latest venture, George’s supervisor instructs him to make an extremely deep and dangerous dive. 4 During the dive, a cable snaps, and its recoil throws him to the ocean floor. 5 The cable rolls back and strikes him in his back and shoulders, leaving him dazed and injured. 6 In response to this accident, George rises to his first decompression stop, where he is put on an inadequate decompression schedule. 7 As a result, he contracts severe decompression sickness and, per proper recompression procedure, must be placed in a recompression chamber within five minutes. 8 His supervisor causes a delay in the procedure that results in George sustaining serious injuries, including a drop in his intelligence quotient, debilitation of his motor faculties, double vision, and depression. 9 George wishes to bring a negligence action against his employer. Additionally, George’s wife, Susan, desires to bring an action for loss of consortium and other non-pecuniary losses. 10 Their ability to bring these actions depends upon whether George is classified as a seaman. This Comment considers this question. Accordingly, the couple’s attorney files a claim in the Eastern District of Louisiana, and the litigation proceeds until Black Mud files a motion for summary judgment on the issue of seaman status. 11 Black Mud argues 4. Id. at 431. 5. Id. 6. Id. 7. Id. 8. Id. 9. In Wallace, the injured worker also complained of an occasional nervous jerk and the permanent use of crutches. Id. 10. An action for loss of consortium is an action for loss of intimacy and companionship in the marital relationship. THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW 168 (4th ed. 2004). These potential damages are not considered pecuniary damages. Id. Because seamen and their spouses are only allowed to recover pecuniary damages, the spouse of a seaman cannot sue for loss of consortium. Id. at 16970 (“[L]oss of consortium and society are recoverable under the general maritime law except in actions by seamen against their employers and where the cause of action is based on a statute that precludes such damages.”). 11. Seaman status is important because seamen are granted greater protections than other marine workers and have an action under the Jones Act for negligence, under which it is easier to prove causation than that under general maritime law. Therefore, it is extremely beneficial in most instances for a worker to be a seaman rather than another type of maritime employee. John W. deGravelles, Harbor Tug & Barge Co. v. Papai: Another Turn in the Labyrinth?, 10 U.S.F. MAR. L.J. 209, 1384 LOUISIANA LAW REVIEW [Vol. 78 that George cannot be a seaman because he did not spend 30% or more of his working time 12 aboard a vessel. 13 The only time he was on board a vessel was to store his equipment, eat, sleep, rest, or be transported to the places of his employment. These tasks, Black Mud argues, should not qualify as work on board a vessel for determining seaman status. The Eastern District grants Black Mud’s motion to deny George seaman status, following the Fifth Circuit Court of Appeals’ holding in Alexander v. Express Energy Operating Services, L.P. 14 In Alexander, Michael Alexander worked on a fixed platform and was injured by a piece of equipment rolling onto his foot. 15 Alexander sued his employer, Express Energy Operating Services, L.P. (“Express”), under the Jones Act 16 in the Eastern District of Louisiana. The Eastern District granted Express’s motion for summary judgment, finding that Alexander was not a seaman. 17 On appeal, the Fifth Circuit Court of Appeals affirmed, holding that to qualify as a seaman per the second prong of Chandris, Inc. v. Latsis, 18 a 209 (1998) (listing these protections as maintenance and cure, unseaworthiness, and a negligence action under the Jones Act); Andrew Hoang Do, Seaman Remedies and Maritime Releases: A Practical Consideration, 7 U.S.F. MAR. L.J. 379 (1995); see Comeaux v. T.L. James & Co., 702 F.2d 1023, 1024 (5th Cir. 1983); Charles v. W. Indies Transp., 631 F. Supp. 1023, 1025 (D.P.R. 1986). 12. This time would be calculated by factoring in the number of days George is employed by Black Mud. For instance, by this interpretation, if George is...