OUR GHOSTLY LEGAL COMMENTATOR REPORTS ON A PRECEDENT MAKING CASE Updated 12/3/2015
American Admiralty Books Safety & Privacy Policies
Greetings Justice Brandeis here. It's been a while, but as you know I've been dead for quite some time, a sort of ultimate retirement and it really takes a corking good precedent making case to motivate me to write. As always thanks to my pal NAMAZU for the transcription services. Being dead, not just anyone can hear me. But I definitely received an earful while listening to oral argument in the Fifth Circuit Federal Appeals Court down in New Orleans recently. In a maritime personal injury case it is important early on to accurately determine the "seaman status" of the injured party. If someone working on the water is not a seaman their prayer for recovery from injury is pretty much going to be limited to that provided for in the Longshoremen and Harbor Workers Act. If an injured party is declared a "seaman" within the meaning of the Jones Act the initial potential for recovery may seem even more limited than in a Longshoremen and Harbor Workers Act case, but under the Jones Act a "Seaman" in aggravating circumstances may receive additional and even punitive damages.The U.S. Gulf Coast offshore oil and mineral industry is serviced by many workers who spend significant time aboard vessels traveling to or from various drilling or production structures. These workers are engaged in the maintenance and repair of such structures. The vessels they commute on are generally utility craft serving as a sort of maritime version of the pick up truck and crew van. Other workers may serve aboard vessels such as lay barges which have as a mission of the vessel the creation, maintenance, or repair of offshore oil and mineral industry structures. The service technicians who live and work aboard these larger "industrial vessels" designed to have as a mission the construction, service, or repair of offshore structures are generally considered "Jones Act seamen" under the law as "crewmen" who contribute to the mission of the vessel. Those who are brought to work on crew boats and utility craft, and especially when they also perform similar services on occasion to shore based oil industry structures, often are not classed as Jones Act Seamen.
Traditionally, the seaman status test has two elements. First the claimant of seaman status must demonstrate that their duties contribute to the function of a vessel or the accomplishment of its mission. Secondarily the seaman status claimant must have an employment connection to a vessel or an identifiable group of vessels, in navigation.. In Alexander v. Express Energy Services the Federal Fifth Circuit Court of Appeals applied a test devised by the Federal Fifth Circuit as a partial indicator of seaman status. The test is meant for situations where technicians travel aboard crew boats and utility craft, often owned by their employer, operated by a a Coast Guard licensed boat operator, and where they occasionally handle mooring lines or other simple chores related to the maneuvering of the vessel. However, in these cases the worker's primary tasking is the service of the oil industry structures. In such cases the Fifth Circuit applied a percentage of time aboard test. The apparent Fifth Circuit rule was that if 30% of an employees time was spent aboard a vessel then Jones Act seaman status might be awarded for such workers. In the instant case (Alexander v. Express Energy. Supra) the Appeals court considered evidence demonstrating that the plaintiff employees spent about 65% of their on the job time working on a fixed platform without any need for or contact with an adjacent vessel. Based on the evidence that the employees did not spend 30% or more of their time aboard vessels the appeals court upheld an earlier fifth circuit trial court ruling granting the defendants a motion for dismissal. This case moves the percentage of time test developed at the Fifth Circuit trial level to acceptability at the appeals level making the concept much stronger precedent.
Well, stay dry and stay alive until next time.
Editor's note this and all previous comments by our lead legal analysts are in our ADMIRALTY LAW SECTION
Hats, Shirts, Jackets, Watches, Jewelry, Decorations, Etc.
No comments:
Post a Comment