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Fifth Circuit judges suggest en banc consideration be given to the court’s precedents on seaman status as they are inconsistent with the teaching of the Supreme Court; Sanchez v. Smart Fabricators of Texas, L.L.C., No. 19-20506 (5th Cir. Aug. 14, 2020) (Davis).

August 14
2020

Gilbert Sanchez was employed by Smart Fabricators as a welder for 67 days. He spent 61 of those 67 days on two Enterprise jack-up vessels. He worked 48 days (72% of his employment) on the ENTERPRISE WFD 350, a jack-up rig adjacent to an inland pier, and 13 days (19% of his employment) on the ENTERPRISE 263, a jack-up rig on the outer Continental Shelf. Sanchez was injured on the ENTERPRISE 263, but that was less than 30% of his employment. More than 70% of his employment was spent on a rig that was jacked up above the water, “a step away from and adjacent to the shoreside pier.” Sanchez brought this suit against Smart Fabricators in state court under the Jones Act, and Smart Fabricators removed the case, arguing that the Jones Act was improperly pleaded and did not prevent removal. Judge Rosenthal agreed that the Jones Act case was improperly pleaded, denied Sanchez’s motion to remand, and granted summary judgment that Sanchez was not a seaman. Writing for the Fifth Circuit, Judge Davis agreed with Judge Rosenthal that Sanchez satisfied the duration element for seaman status as he spent 72% of his time on the ENTERPRISE WFD 350 and 19% of his time on the ENTERPRISE 263 (both of which are jack-up vessels). The Fifth Circuit disagreed, however, with Judge Rosenthal’s conclusion that the nature element for seaman status was not satisfied because Sanchez was a shoreside worker whose work on the ENTERPRISE WFD 350, jacked up in the harbor, did not expose Sanchez to the perils of the sea. When Justice Kennedy defined the requirement for the nature element of the seaman status test in the Supreme Court’s Papai case, he stated that the inquiry “must concentrate on whether the employee’s duties take him to sea.” Nonetheless, the Fifth Circuit’s decisions in Endeavor Marine and Naquin v. Elevating Boats had not required that the worker’s duties actually take him to sea and instead held that the nature element could be satisfied by a worker’s exposure to the perils of the sea “on the brown waters of the Mississippi River.” Bound by the court’s decisions in those cases, Judge Davis held that Sanchez’s work on the jacked up rig in the harbor (going home every evening after work) satisfied the nature element of seaman status. Therefore, as Sanchez presented a fact question of Jones Act status, Judge Davis ordered that Sanchez’s suit could not be removed and had to be remanded to state court. Judge Davis and the other two judges on the panel (Judges Jones and Willett) wrote a concurring opinion in which they expressed that they “were persuaded that our case law is inconsistent with the teaching of the Supreme Court.” Citing Kenneth G. Engerrand, Escape from the Labyrinth: Call for the Admiralty Judges of the Supreme Court to Reconsider Seaman Status, Judge Davis stated that the Endeavor Marine and Naquin cases did not properly follow Papai, as the duties of those workers on dockside vessels and in a canal adjacent to a shipyard did not take the workers to sea or expose them to its perils. Similarly, as Sanchez’s work on the ENTERPRISE WFD 350 was performed while the rig was jacked up adjacent to the dock and he did not sail with the vessel, he was a land-based worker whose duties did not expose him to the perils of the sea. The three judges suggested that the court should take the case en banc “and bring our jurisprudence in line with Supreme Court caselaw.”

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