En banc Fifth Circuit corrected its interpretation of the test for seaman status; Sanchez v. Smart Fabricators of Texas, L.L.C., No. 19-20506 (5th Cir. May 11, 2021) (en banc) (Davis).
For more than 200 years, American courts have struggled to define who is a seaman and entitled to seamen’s remedies. In 1991, the Supreme Court began a process of clarifying the confusion, recognizing: Our wayward case law has led the lower courts to a ‘myriad of standards and lack of uniformity in administering the elements of seaman status.’” McDermott International, Inc. v. Wilander, 498 U.S. 337, 353 (1991) (quoting Kenneth G. Engerrand and Jeffrey R. Bale, Seaman Status Reconsidered, 24 S. Tex. L.J. 431,494 (1983)). The decisions that followed clarified that seamen’s remedies should be reserved for sea-based workers and that the LHWCA should apply to land-based maritime workers. Consequently, the Supreme Court enunciated a test requiring that seamen have a relationship to a vessel or identifiable fleet of vessels that is substantial in nature and duration and that the worker’s duties contribute to the function or mission of the vessels/fleet. In Harbor Tug & Barge Co. v. Papai, Justice Kennedy explained what was necessary for a seaman to satisfy the “nature” element: “For the substantial connection requirement to serve its purpose, the inquiry into the nature of the employee’s connection to the vessel must concentrate on whether the employee’s duties take him to sea.” 520 U.S. 548, 555 (1995).
When presented with an injury to a crane operator for a derrick barge that was operating in the Mississippi River, a panel of the Fifth Circuit rejected the argument that the worker’s duties did not satisfy the nature element of the test for seaman status “because his duties do not literally carry him to sea,” as directed by Papai. In re Endeavor Marine, Inc., 234 F.3d 287, 292 (5th Cir. 2000). Instead, the Fifth Circuit panel held that the requirement that a worker’s duties take him to sea was satisfied by exposure to the perils of the sea, including work in “the brown waters of the Mississippi River.” Id. at 291.
The injury to Gilbert Sanchez (July 2019, April, May, and December 2020 Updates) gave the Fifth Circuit the opportunity to correct its wayward interpretation of the nature element of the seaman status test. 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 his work on that rig 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. Chief 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.
When Sanchez appealed to the Fifth Circuit, the panel had to decide the case based on the interpretation of the nature element that had been handed down in Endeavor Marine and its progeny in the Fifth Circuit. Writing for the panel, Judge Davis agreed with Chief 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 panel disagreed, however, with Chief 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. Bound by the Fifth Circuit’s prior interpretation of the nature element, Judge Davis held that Sanchez’s work on the rig that was jacked up 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 Endeavor Marine and its progeny 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 agree to hear the case en banc “and bring our jurisprudence in line with Supreme Court caselaw.”
The Fifth Circuit took the advice of the panel and agreed to an en banc rehearing of Sanchez’s appeal. Writing for the full court, Judge Davis took to heart Justice Kennedy’s admonition in Papai that a worker’s duties must take him to sea. Writing for the unanimous court (there was a brief concurrence from Judge Dennis), Judge Davis noted that the Endeavor Marine and Naquin cases had asked whether the workers were subject to the perils of the sea as the primary test for the nature element; however, in this opinion Judge Davis stated that the perils of the sea was not the sole or even the primary test. He stated that courts should also consider:
- Does the worker owe his allegiance to the vessel, rather than simply to a shoreside employer?
- Is the work sea-based or involve seagoing activity?
- (a) Is the worker’s assignment to a vessel limited to performance of a discrete task after which the worker’s connection to the vessel ends, or (b) Does the worker’s assignment include sailing with the vessel from port to port or location to location?
Considering the more definitive inquiries enunciated by the en banc court, Judge Davis found the work performed by Sanchez to be like the work performed by Papai that was not seagoing activity (noting that his work was performed on a vessel that was jacked up in the harbor a gangplank away from shore). The work on the jacked-up vessel was not of a seagoing nature and Sanchez was not going to sail with the vessel after he finished his work at the dock. His transitory work on the vessel was like that of a longshore worker, and Sanchez failed to meet the test for seaman status.