TO LAND AND BACK: A WELDER'S VOYAGE ON A JACK-UP RIG.

• Author: Barnes, Edwin B.

1. Introduction 1 II. Seamen 2 III. Who Is a Seaman 3 IV. Land Ho! New Seaman 5 V. Gizoni and Stewart in the Fifth Circuit 7 A. Endeavor Marine 2000 7 B. Grab 2013 8 C. Naquin 2014 9 VI. Sanchez 10 A. Motion for Remand Denied 10 B. Summary Decision Granted 11 C. The First Fifth Circuit Panel Affirms 11 D. The Second Fifth Circuit Panel Reverses, and Rebukes Itself 12 E. The En Banc Panel Sends Seaman Back to the Sea 13 VII. Conclusion 14 I. Introduction

   The seaman has always eluded precise definition. Who qualifies for seaman status has grown from a hodge-podge of fact intensive situations that escape bright line rules. Perhaps the inquiry always returns to the perils of the sea. Even so, employers, employees, vessel owners, judges, and attorneys alike are surprised time and time again. Perhaps none were so surprised as Gilbert Sanchez, who after welding on two jack-up rigs one-step adjacent to an inland shoreside pier, received extraordinary attention from the Fifth Circuit Court of Appeals.

   First, a panel comprised of Judges Higginbotham, Ho, and Engelhart affirmed the District Court's finding that he was not a seaman because the jack-up rigs he worked on were anchored to the seafloor and not subject to waves, tides, or other water movement. (1) The opinion, however, was withdrawn. Second, a new panel comprised of Judges Davis, Jones, and Willett found that he was a seaman on the grounds that he was exposed to the perils of a maritime work environment, and reversed the district court's finding. (2) However, the panel took an unusual tack and authored a joint special concurrence, arguing that the Fifth Circuit's binding precedent was at odds with the United States Supreme Court. (3) Third, a member of the court requested a petition for rehearing en banc, and a majority of the circuit judges voted in favor of vacating the decision for a rehearing on banc. (4) Finally, sitting en banc, the United States Court of Appeals for the Fifth Circuit, found that Sanchez's transient repair jobs on two vessels were not sea-based work sufficient to satisfy the requirement that he have a substantial connection to a fleet of vessels. In doing so, the Fifth Circuit set out a firm framework that probes the nature of the worker's connection to the vessels as opposed to a sole consideration of the 'perils of the sea.'

2. Seamen

   For a variety of reasons, seamen have historically received special protections that most categories of employees have not. Those reasons include, but are not limited to, both the relative danger of the occupation due to exposure to the perils of the sea and the relative importance of the occupation to commerce. (5) These protections not only include the so-called remedial trident against his or her employer--negligence under the Jones Act, (6) liability without fault through unseaworthiness, (7) and maintenance and cure including the possibility of punitive damages (8)--but also liability without fault through unseaworthiness against a shipowner, breach of contract, earned wages, (9) wrongful discharge, (10) and general maritime torts.

   There are also expansive regulatory protections concerning a seaman's room, clothing, right to medical care, and even a full ration of tobacco. (11) Seamen are also entitled to three meals a day totaling at least 3,100 calories in accordance with the United States Recommended Daily Allowances. (12) States and local governments are prohibited from withholding taxes from their wages. (13) In fact, when a vessel is lost or incapacitated, the United States government is obligated to pay for his or her return home. (14) Finally, and perhaps most pertinent to Sanchez, the savings to suitors clause preserves the concurrent jurisdiction of state court's over in personam admiralty and maritime claims such that seamen may elect to bring their otherwise federal claims in their local forums. (15)

3. Who Is a Seaman

   Congress has never defined "seaman." (16) The closest it ever came was stating that, for the purposes of the Longshore and Harbor Workers' Compensation Act, the term "employee," while meaning "any person engaged in maritime employment," does not mean the "master or member of a crew of any vessel," without bothering to define either "master" or "member." (17) Thus, the courts have been left to their own devices to divine the meaning of "seaman," and the answer is not as simple as sailors. Beginning in the early 1990s, the United States Supreme Court laid out the modern framework.

   First, in McDermott International, Inc. v. Wilander, the United States Supreme Court held that a seaman's work need not aid the vessel's navigation, but that it must contribute to the vessel's mission. (18) This holding best harmonized the distinction between the Longshore Act and the Jones Act as mutually exclusive land-based and sea-based remedies. (19) It must be admitted, though, much is left to be desired from such broad direction. After a thorough and illuminating discussion and review of prior law laden with maritime puns, Justice O'Connor conceded the issue was "befuddling." (20) However, the Court explained the inquiry does not turn on a particular job, but on the employee's connection to the vessel: "[w]e are not called upon here to define this connection in all details, but we hold that a necessary element of the connection is that a seaman perform the work of a vessel." (21) Subsection (3) of section 2 of the Longshore Act is precisely the opposite, a Congressional list of enumerated jobs: "[t]he term 'employee' means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, ship builder, and ship-breaker [etc]..." (22)

   Second, in the same year in Southwest Marine, Inc. v. Gizoni, the United States Supreme Court held that enumerated Longshore employees are not precluded from being seaman. (23) The Court highlighted the fact following Wilander that even a quintessential Longshore worker such as a land-based ship repairman who was never exposed to the perils of the sea may be a Jones Act seaman if "he spend[t] all his working hours aboard a vessel in furtherance of its mission." (24) Thus, far from help create a bright line rule, Gizoni only deepened the myriad factual scenarios by which traditional land-based Longshore employees could become seaman.

   Third, four years later, in Chandris, Inc. v. Latsis, Justice O'Connor expanded on the Court's prior holding in Wilander, defining two factors: (1) a seaman's duties must contribute to the function of the vessel or the accomplishment of its mission (from Wilander); and (2) a seaman must have a connection to a vessel in navigation that is substantial in terms of both its duration and its nature (new with Chandris). (25) The Court explained that the purpose of the new second-factor was to delineate between land-based Longshore workers, and sea-based seamen--in other words, those who have a "transitory and sporadic connection to a vessel in navigation, and are [] not exposed to the perils of the sea." (26) However vague this formulation might be, the Court approved of the Fifth Circuit's rule of thumb to resolve that most of the time a worker who spends less than 30% of his or her time in the service of vessel in navigation, should not be considered a seaman.

   Fourth, in Harbor Tug & Barge Co. v. Papai, the United States Supreme Court held that the connection to a vessel in navigation could in fact be to group of vessels, so long as the vessels were under common ownership, and so long as the connection to the group of vessels was not transitory or sporadic for the purposes of determining the second prong of the Wilander/Chandris inquiry. (27) This new...