DETERMINING SEAMAN STATUS OF INTERMITTENT MARITIME EMPLOYMENT UNDER THE JONES ACT: NINTH CIRCUIT'S DECISION IN SOUTHARD.

• Author: Morgan, Sarah

Table of Contents I. Introduction 167 II. Facts and Holding 168 III. Background 170 A. Federal Question Jurisdiction Under the Jones Act and Admiralty Jurisdiction 170 B. Establishing the Test for Determining "Seaman" Status Under the Jones Act 171 C. Admiralty Law 177 IV. The Court's Decision 178 V. Analysis 179 I. Introduction

There has long been conflict and confusion within the courts to determine those maritime workers who qualify as seaman, and those who do not. (2) The question is left to the courts' discretion to define the appropriate standard for the jury to consider when evaluating all relevant circumstances in determining the "mixed question of law and fact of seaman status." (3) The courts now use a two-part test, herein referred to as the "Chandris test," in determining the seaman status of a maritime worker under the Jones Act. (4) Using this test, courts can determine whether maritime workers' change in assignment or location merits a status change from land-based to seaman or the inverse of such and thus, those workers' ability to file a claim for negligence under federal question jurisdiction. (5)

This casenote discusses the U.S.D.C. for the Western District of Washington's decision in Southard v. Ballard Marine Construction Incorporated and the implication of that decision on future cases involving similar disputes. Section II reviews the case's factual setting and the conclusion reached by the court. Section III discusses the legal setting and those precedent cases that led to the court's decision. Section IV explains the court's reasoning for the tests it employed to reach the final holding. Finally, Section V analyzes the court's legal argument and conclusion regarding admiralty jurisdiction and the Chandris test to determine a maritime worker's seaman status under the Jones Act.

2. Facts and Holding

   On October 11, 2019, Nicholas J. Southard filed a claim for negligence in district court, under admiralty and maritime law against his employer, Ballard Marine Construction Incorporated ("Ballard"). (6) Southard's negligence claim arose from injuries sustained during his employment as a Compressed Air Worker between January 6, 2017, and February 11, 2017. (7) Specifically, Southard alleged that Ballard incurred liability for his maintenance, wages, and medical care by failing "to remove him from his work upon notice of injury and ensure he received prompt medical treatment." (8) As a result, Southard became ill from decompression sickness and distal small fiber neuropathy. (9) As a Compressed Air Worker, Southard worked on a tunneling project, under the Suez Canal, in a "pressurized, but dry and terrestrial environment," to "perform cleaning and maintenance of the cutterhead of the tunnel boring machine." (10) Southard was a marine infrastructure and utility contractor who alternated between "wet-diving underwater on marine construction projects and dry-diving on tunneling projects," where the plaintiff estimated he spent roughly 45% of his employment working in the service of vessels that Ballard owned and operated. (11) Ballard claimed that while Southard worked on the Suez Canal project, he was at least two miles from navigable waters and "was not assigned to or under the call or command of a vessel." (12)

   On January 16, 2010, Ballard filed a motion to dismiss for lack of subject matter jurisdiction, asserting a factual challenge to Southard's claim that the court has subject matter jurisdiction and challenged the standard the court applied in reviewing Southard's claim to seaman status. (13) Ballard maintained that Southard did not qualify as a seaman under the Jones Act and consequently did not maintain federal question jurisdiction. (14) Using Fifth Circuit precedent, in Guidry v. South Louisiana Contractors and Higginbotham v. Mobil Oil Corporation, (15) Southard argued that his navigation and operation of Ballard's dive boats and underwater diving constituted 45% of his employment, granting him seaman status under the Jones Act, even if his injury occurred while working on a tunneling project. (16) Southard also maintained that because he could establish jurisdiction under the Jones Act, he did not need to satisfy admiralty jurisdiction requirements. (17)

   The court concluded: (1) that Southard's claim could not invoke admiralty jurisdiction because he failed to satisfy the locality test, (2) that when applying the Chandris test, his claim lacked subject matter jurisdiction under the Jones Act, and (3) Southard was granted leave to amend. (18) In granting Ballard's motion to dismiss, the court held that when a maritime worker's fundamental assignment changes and no connection to the previous marine work or vessel persists, that seaman's status can change as well, because the evaluation of that seaman's status focused only on the assignment and position occupied at the time of the incident. (19)

3. Background

   1. Federal Question Jurisdiction Under the Jones Act and Admiralty Jurisdiction

      Under Rule 12(b)(1), if a plaintiff does not have subject matter jurisdiction, then a motion to dismiss for lack of subject matter jurisdiction may be made, either as a speaking motion or as a motion for summary judgment. (20) One way of establishing subject matter jurisdiction is federal question jurisdiction. (21) For a cause of action to exist in federal court under federal question jurisdiction, that claim must arise under federal law and meet both constitutional and statutory requirements. (22) To recover for a negligence claim in federal court under 46 U.S.C [section] 30104, the Jones Act, and for maintenance and cure claims under maritime law and admiralty jurisdiction, the plaintiff must first merit protection under this Act. (23) If a plaintiff does not qualify for protection under the Jones Act, then no federal question exists, and the court does not have subject matter jurisdiction. (24) Before Congress enacted the Jones Act in 1920, seamen injured within the course of their employment could not recover under indemnity for the negligence of their employer or any member of the crew. (25) Under the Jones Act, a "seaman" may file a claim for injury or death against their employer, if the injury or death occurred during that employment. (26)

      A tort claim for negligence can also be filed using admiralty and maritime jurisdiction. (27) Admiralty jurisdiction falls under 28 U.S.C.S. [section] 1333(1), and district courts shall have original jurisdiction over any civil admiralty jurisdiction case. (28) Any claim for admiralty jurisdiction must satisfy the locality and connection tests, and the party seeking this jurisdiction bears the burden of proof in establishing that the claim satisfies these tests. (29) Thus, if a plaintiff qualifies under either jurisdiction, he will maintain subject-matter jurisdiction in federal court. (30)

   2. Establishing the Test for Determining "Seaman" Status Under the Jones Act

      The Jones Act has never defined the term "seaman," leaving the determination for who qualifies for protection under this act to the lower courts. (31) The lack of a clear definition has resulted in varied outcomes, leading to confusion among lawyers and courts alike. (32) In 1926, in the case of International Stevedoring Co. v. Haverty, Congress stated, "words are flexible," and that words in the Jones Act should be construed under a wider...