SIERACKI'S REVIVAL: SEAMAN-STATUS FOR PILOTS MAKING WAVES IN THE FIFTH CIRCUIT.

• Author: Hart, Nicholas A.

1. Introduction 79 II. Background 80 A. Pilotage 80 B. History of Unseaworthiness as a Traditional Seaman's Remedy 80 C. Congress' Enactment of the Jones Act and LHWCA 81 1. Jones Act 81 2. Longshore and Harbor Workers' Compensation Act (Longshore Act) 82 3. The intersection of the Jones Act and LHWCA 83 D. Mahnich v. Southern S.S. Co. & Seas Shipping Co. v. Sieracki 85 III. Sieracki and Its Progeny 88 A. Pope & Talbot Co., Inc., v. Hawn 88 B. 1972 Amendments to the LHWCA 88 1. Congressional Intent and Inclusion of the Exclusivity Clause 89 2. An abridged, but operative post-amendment Sieracki doctrine 90 IV. Circuit Split and Interpretation of "Employee" 92 A. Who is an employee under the Longshore Act? 92 B. Broad Interpretation of the Longshore Act's "Employee" Definition 94 1. Harwood v. Partredereit AF 15.5.81 (4th Cir.) 94 2. Ghotra v. Bandila Shipping, Inc. (9th Cir.) 95 C. Narrow Interpretation of the Longshore Act's "Employee" Definition 96 1. Rivera v. Kirby Offshore, Inc. (5th Cir.) 96 V. Recommendations 98 A. Courts Must Reject the Fifth Circuit's Narrow Interpretation of "Employee" Despite Sieracki's Continued Validity 98 B. Issues With Pilots' Recovery Under the Longshore Act and Potential Solutions 99 VI. Conclusion 101 I. Introduction

   From antiquity, maritime commerce has sent countless sailors and maritime workers to sea, subjecting them to perils and injury in furtherance of trade. With these risks, maritime remedies were created to compensate those who subject themselves to such perils when injury or loss occurs. Available remedies include those provided by statutory schemes such as the Jones Act (1) or Longshore and Harbor Workers' Compensation Act (hereinafter LHWCA), (2) in conjunction with traditional seaman's remedies under the General Maritime law such as maintenance and cure, unseaworthiness, and General Maritime law negligence. However, with the ever-rapid expansion of maritime commerce and the growth of harbors and ports to store and load vessels, the question arises as to which maritime workers qualify to bring a claim under these traditional maritime remedies. A layman may view this issue as trivial: those who go to sea should be afforded seaman's remedies, while those who remain on land should be precluded from asserting such a claim and should seek other remedies for their injuries. However, people familiar with the intricacies of maritime commerce recognize that these seemingly definite lines between sea-based and land-based workers become blurred when individual maritime workers ostensibly occupy both fields. Among these "gray-area" maritime workers are maritime pilots. (3) Without a resolution, maritime pilots will be subjected to different remedies or compensation based wholly on whether a particular jurisdiction considers independent contractors as satisfying the requirements for coverage under the LHWCA, or whether the Sieracki cause of action for unseaworthiness remains a viable alternative for those workers who lack a traditional employer.

   To better understand this existing circuit split between coverage under the LHWCA and the Sieracki cause of action, Part II of this comment provides a brief overview of the origin of traditional seaman's remedies, the Congressional statutory schemes of the Jones Act and LHWCA, the introduction of a no-fault remedy, and expanded seaman-status for longshoremen in Mahnich v. Southern Steamship Co. (4) and Seas Shipping Co. v. Sieracki, (5) respectively. Part III surveys the developments immediately following the landmark Sieracki decision, including the expansion of this novel theory of coverage in Pope & Talbot Co., Inc. v. Hawn, (6) as well as the Congressional Amendments (7) to the LHWCA in 1972 and their proceeding interpretation by federal courts. Next, Part IV of this comment will address the existing circuit split regarding the interpretation of "employee" under the LHWCA for purposes of coverage under the Act and preclusion from bringing a Sieracki claim. Finally, Part V will highlight recommendations for addressing the existing circuit split considering the overarching goal of uniformity (8) and Part VI will offer conclusions.

2. Background

   1. Pilotage

      As former Judge John R. Brown from the Fifth Circuit noted in his famous dissent in Bach v. Trident S.S. Co., (9) maritime pilots are so indispensable to an ocean-going vessel that the vessel cannot lawfully move in commerce "beyond a single meter" without the presence of a pilot in command of the vessel. (10) There may be no more integral worker in the cogs of maritime commerce than the pilot. A maritime pilot may be compulsory or voluntary depending on the jurisdiction in question. (11) Additionally, pilots can also be compulsory in the sense that they are assigned to vessels by an association at random, "and the vessel has no choice which pilot is assigned." (12) Often, maritime pilots are considered "self-employed" and are members of an association of pilots, holding an individual state license. (13) In the case of a self-employed pilot, a vessel will directly contract with the pilot to procure his or her services in navigating a vessel through a port or waterway. (14)

   2. History of Unseaworthiness as a Traditional Seaman's Remedy

      Traditional seaman remedies are causes of action considered intrinsic to the work of a seaman. Among these remedies, embodied by General Maritime law, is a claim for unseaworthiness (often referred to as a claim for breach of the warranty of seaworthiness), which was solidified in the landmark Supreme Court case of The Osceola. (15) In that case, the Court acknowledged "[t]hat the vessel and her owner are, both by English and American law, liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship." (16) In other words, "[u]nseaworthiness is a claim under the general maritime law based on the vessel owner's duty to ensure that the vessel is reasonably fit to be at sea." (17) Notably, this case also precluded members of the crew from asserting a claim for the negligence of the master or crew resulting in injury against the vessel owner. (18)

      This duty on the part of the vessel owner is absolute and non-delegable to third parties. (19) Notably, a necessary prerequisite for an unseaworthiness claim is that the plaintiff be a "seaman," and a court must review the "status of the seaman and his peculiar relationship to the vessel" to determine whether a plaintiff can meet such a threshold. (20) However, "seaman" is merely a term of art in maritime law, which has not been defined by either Congress through statute or the Supreme Court. (21) Notably, a plaintiff cannot assert a claim for unseaworthiness against a vessel of which he is not a member of the crew, with a narrow exception to this being a "Sieracki seaman." (22) The Supreme Court has held that for those individuals to which the vessel owner does not owe a warranty of seaworthiness, the vessel owner still "owes to all who are on board for purposes not [hostile] to his legitimate interests the duty of exercising reasonable care under the circumstances of each case." (23) Pursuing a claim for unseaworthiness, as opposed to one for ordinary negligence following an injury, is advantageous for a plaintiff seaman because, if the burden of proof is met, the vessel owner will be held strictly liable for the plaintiff's injury regardless of fault. (24)

      Revolutionary changes for unseaworthiness as a cause of action occurred in the 1944 case, Mahnich v. Southern S.S. Co., when the Supreme Court "transformed the warranty of seaworthiness into a strict liability obligation." (25) This shift resulted in the shipowner being held liable irrespective of fault or "intervening negligence of crew members" for failure to supply a safe ship. (26)

   3. Congress' Enactment of the Jones Act and the Longshore Act

      1. Jones Act

         In 1920, Congress enacted the Merchant Marine Act (Jones Act) to remove the negligence bar of The Osceola, which prevented members of the ship's crew from bringing a negligence action against the vessel owner. (27) By eliminating these restrictions, the Jones Act provided crew members with a cause of action in negligence against the employer for those injured in the course of their employment. (28) The Jones Act was remedial in nature, and sought to provide benefits and protections to seamen "who are peculiarly the wards of admiralty," with the purpose of expanding the protections afforded to seamen rather than diminishing such protections. (29)

         The Supreme Court, through a line of cases, examined the Congressional intent behind the Jones Act, and has reiterated that the purpose of the act was "to provide liberal recovery for injured workers." (30) The Court also made clear that the Act "must be liberally construed to attain that end." (31) Under modern jurisprudence, an individual must satisfy a status-based inquiry to attain seaman status and thus qualify to bring a claim under the Jones Act: (1) "an employee's duties must 'contribut[e] to the function of the vessel or to accomplishment of its mission,'" and (2) "a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature." (32) The second prong of this requirement is meant to separate seamen from those "land-based workers who have only a transitory and sporadic connection to a vessel in navigation... whose employment does not regularly expose them to the perils of the sea." (33) From the lens of this current standard established in Chandris, pilots face difficulties in attaining seaman status due to the transitory nature of their work aboard vessels and lack of a substantial relationship to a particular vessel or identifiable fleet of vessels under common ownership or control. (34)

      2. Longshore and...