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.