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
 
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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 issuenamely, the identifiable fleet of vessels
requirementand, 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.

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