Tuesday, January 8, 2013, 6:51 AM

Can Your Employee Sue You? New Decision from 5th Court of Appeals Continues the Confusion as to Who Is a Jones Act Seaman


The U.S. Fifth Circuit Court of Appeals decided a case of great importance to companies unsure of whether their workers may be Jones Act seamen, entitled to a jury trial against their employer for injuries sustained on the job, or shore-based workers covered by state workers' compensation regimes, or those hybrid waterfront workers covered by the federal Longshore and Harbor Workers Compensation Act (the “Longshore Act”).
In the case of Grab v. Boh Brothers Constr. Co., No. 11-30606 (5th Cir., Jan. 4, 2013), the court considered the status of two iron workers severely injured during the reconstruction of the I-10 bridge over Lake Pontchartrain in Louisiana and held that they were “seaman” entitled to the protections of the Jones Act, 46 U.S.C. § 30104.

The case is notable because both plaintiffs were land-based iron workers, responsible for erecting steel girders on the bridge. They traveled to and from the job site by crewboat and returned home each night. They were injured one evening when their crewboat allided with a survey tower erected on the lake to assist in the bridge work.

In affirming the courts below (two cases were consolidated from district court decisions), the Fifth Circuit found that the plaintiffs performed their work from the deck of a crane barge, the BIG MAC, as the crane lifted girders up to the bridge. The court further found that the plaintiffs assisted in the “navigation” of the barge, such as it was, as the barge shifted locations beneath the bridge with the assistance of the tugboat.

In reaching its decision, the court cited the U.S. Supreme Court decision of Chandris, Inc. v. Latsis, 515 U.S. 347 (1995), which held that, to be defined as a “seaman,” the worker must contribute to the functioning of the vessel, and second, the worker’s connection to the vessel must be “substantial in terms of both its duration and nature.” The Fifth Circuit held that the BIG MAC was a vessel in navigation, and that the plaintiffs assisted with its mission, i.e., the reconstruction of the bridge. Further, the court held that the plaintiffs' tenure aboard the BIG MAC was contemplated to be substantial in its duration because they were scheduled to work aboard the barge for the duration of the job.

It should be noted that this holding is consistent with other Fifth Circuit decisions but is completely at odds with the cases out of the U.S. Ninth Circuit Court of Appeals which persuasively distinguish these workers from “seamen” entitled to the protections of the Jones Act. See, e.g., Cabral v. Healy Tibbits Builders, 128 F.3d 1289, 1293 (9th Cir. 1997); Gipson v. Kajima Eng'g & Constr., Inc., 1999 U.S. App. LEXIS 5378 (9th Cir. 1999); Heise v. Fishing Co. of Alaska, Inc., 79 F.3d 903 (9th Cir. 1996). The Fourth Circuit Court of Appeals, which embraces the coastal states from Maryland to South Carolina, is without an opinion on point. Accordingly, depending on where the job is, the barge-based construction worker might a “seaman” with a lawsuit or he might be construction worker with none.

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