In Alexander v. Express Energy Services Operating1, the Fifth Circuit Court of Appeals once again addressed a critical issue facing businesses (and their insurers) whose operations have maritime connections: When is an employee considered a seaman?
The underlying case involved Michael Alexander, a lead hand/operator in Express Energy Services Operating, L.P.'s plug and abandonment department, which specialized in plugging decommissioned oil wells on various platforms off the coast of Louisiana for Express's customers. Mr. Alexander's duties included ensuring that everything was set up and running properly on the deck of the platform so that the plugging operation was successful.
At the time of the incident at issue in the lawsuit, Mr. Alexander was working on a plug and abandonment project on a platform owned by Apache Corporation that had four wells on it. A liftboat owned by Aries Marine Corporation was positioned next to the Apache platform, with a catwalk connecting the vessel to the platform. (A liftboat is a self-propelled, self-elevating vessel with a relatively large open deck capable of carrying equipment and supplies, that has the capability of rapidly raising its hull clear of the water on its own legs so as to provide a stable platform from which maintenance and construction work may be conducted. They are commonly used in Gulf of Mexico oil and gas operations.) The liftboat had a crane that was being operated by an Aries employee for the benefit of the plug and abandonment crew. Other equipment, including wireline equipment, was located on the platform. Mr. Alexander, who along with other workers had set up the equipment on the platform before work began, was on the platform, not the liftboat, when the work was underway. As he was working on the platform, a wireline from the liftboat's crane snapped, causing a plug/tool combination suspended approximately a foot above the platform's deck to fall and roll onto Mr. Alexander's foot.
Mr. Alexander subsequently filed a lawsuit in Louisiana federal court against Express, his employer, and other companies, alleging that he was a seaman and asserting claims for negligence under the Jones Act and general maritime law, as well as claims for unseaworthiness and maintenance and cure.2 Express, the employer, subsequently filed a motion for summary judgment challenging Alexander's seaman status, arguing that he was a platform-based worker who failed to satisfy either prong of the seaman status test laid down by the U.S. Supreme Court in Chandris, Inc. v. Latsis, 515 U.S. 347 (1995).
The Chandris test consists of two parts. First, the claimant must prove that his or her duties contributed to the function of the vessel or to the accomplishment of its mission. This does not necessarily require that the claimant aid in navigation or contribute to the transportation of the vessel, but it does require that he or she be doing the ship's work.
Second, a claimant 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. The fundamental purpose of this substantial connection requirement is to give full effect to the remedial scheme created by Congress and to separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based workers who have only a transitory or sporadic connection to a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea.
In Chandris, the Supreme Court emphasized that a maritime worker who spends only a small fraction of his or her working time onboard a vessel is fundamentally land-based and therefore not a member of the vessel's crew, regardless of what his or her duties are. The Supreme Court explained that although the inquiry is fact-specific, where undisputed facts reveal that a maritime worker has a clearly inadequate temporal connection to vessels in navigation, courts may take the question from the jury by granting summary judgment or a directed verdict. The Supreme Court adopted the Fifth Circuit's rule of thumb to aid courts in making this determination: A worker who spends less than about 30 percent of his or her time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act.
In the Alexander case, Express argued that Mr. Alexander did not meet the first prong of the seaman test because he did not contribute to the function of a vessel or the accomplishment of its mission, based on the fact that he worked on non-vessel fixed platforms. With respect to the second prong, Express argued that even though Alexander had shown that approximately 35 percent of his plug and abandonment jobs involved the use of an adjacent liftboat, he had failed to demonstrate that he spent at least 30 percent of his total work time on the adjacent liftboat.
The district court granted Express' motion for summary judgment on the first prong. It concluded that Alexander's duties in this case were similar to those of the plaintiff in Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 346 (5th Cir. 1999), which the Fifth Circuit held did not contribute to the function of a vessel because those duties related to the fixed platform, not the vessel. In a footnote at the end of the opinion, the district court opined that Alexander had also failed to meet the second prong. Alexander appealed.
Without assessing whether Alexander's duties contributed to the function of a vessel or the accomplishment of its mission, the court of appeals affirmed the judgment of the district court based on Alexander's failure to produce sufficient evidence under the second prong of the seaman test, which is the temporal connection requirement. Cognizant of its duty to follow clear and controlling Supreme Court precedent, the court of appeals reasoned that Chandris made it clear that a seaman must spend a substantial amount of time, ordinarily 30 percent, actually working on a vessel. In the present case, the undisputed summary judgment evidence showed that approximately 65 percent of Alexander's jobs involved a fixed platform only, without the help of an adjacent vessel. And even on the other jobs involving a vessel adjacent to the platform, Alexander's work occurred mostly on the platform. Thus, the court of appeals emphasized that it was not sufficient under Chandris that Alexander was merely near a vessel on more than 30 percent of his jobs, or that he performed some incidental work on a vessel on those jobs. Rather, to be a seaman, he had to show that he actually worked on a vessel at least 30 percent of the time. Because Alexander failed to produce sufficient evidence to prove that point, summary judgment in favor of his employer was proper.
The Fifth Circuit's opinion is a reminder that when dealing with on-the-job accidents and injuries in the maritime context, the details of the involved employee's job duties, along with the actual circumstances of the employee's work, are critical issues to consider. Not only do they go to making a determination as to what type of benefits the employee might be entitled to recover (i.e., maintenance and cure versus federal or state workers' compensation), they also are key to being able to evaluate strategies for handling subsequent claims and/or lawsuits. While each case is very fact-specific, taking an early and proactive lead on gathering the necessary evidence needed to assess these issues has a significant amount of potential benefit for employers and insurers, and is something that companies should consider including as part of a standard protocol for handling workplace accidents and incidents.
Footnotes
1 Alexander v. Express Energy Services Operating, L.P., 14-30488, 2015 WL 2151773 (5th Cir. May 7, 2015).
2 A seaman has a claim under the general maritime law for injuries caused by the unseaworthiness of a vessel, and this claim is independent from a claim under the Jones Act for an employer's negligence. A claim for maintenance and cure concerns the employer's obligation to provide food, lodging, and medical services to a seaman injured while serving the ship. Subject to certain defenses, this obligation arises without regard to fault, and benefits must be provided until the seaman reaches maximum medical recovery or improvement ("MMI"). Maintenance benefits provide the equivalent of a seaman's food and lodging on the ship, and recent court opinions have approved daily maintenance rates from $30 up to $45 per day.
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