Fifth Circuit to Reconsider Jones Act Seaman Status Decision En Banc
The Fifth Circuit will reconsider en banc its test for determining Jones Act status in the context of an offshore worker’s being injured on a jack-up drilling rig in order to be in alignment with Supreme Court precedent. Normally an appeal is considered by a three-judge panel. En banc consideration involves a rehearing before all of the Fifth Circuit sitting judges and is only granted when the judges believe that there is a significant issue to be resolved. The Fifth Circuit’s en banc consideration will have an impact on the status of all workers assigned to special-purpose watercraft who are not directly involved with the vessel’s navigational function.
The facts of Sanchez are not uncommon for offshore workers and even construction workers assigned to spud barges on rivers and waterways.
Sanchez was a welder and employed by Smart Fabricators of Texas (SmartFab) to work on rigs offshore for Enterprise Offshore Drilling LLC (Enterprise). Sanchez worked for SmartFab for a total of 67 days and was dispatched to work two days in an onshore shop; four days on a vessel not owned by Enterprise; 48 days on a jack-up drilling rig, the ENTERPRISE WFD 350, which was located near an inland pier; and 13 days on a jack-up drilling rig, the ENTERPRISE 263, located on the Outer Continental Shelf. A jack-up rig is a self-contained combination drilling rig and floating barge fitted with long support legs that is jacked up while drilling and lowered while in transit. It is normally towed into place and becomes a stationary drilling platform when its legs are raised up on location.
For his 67 days of employment with SmartFab, Sanchez only worked day shifts and returned home at the end of each day. Sanchez sustained injuries when he tripped on a pipe that was welded to the deck of the ENTERPRISE 263. Whether Sanchez should be considered a Jones Act seaman was the key issue before the court on appeal after the federal district court denied seaman status.
The Supreme Court has developed a two-part test to establish Jones Act seaman status: (1) the employee’s duties “must contribute to the function of the vessel or to the accomplishment of its mission” and (2) the employee “must have a connection to a vessel in navigation (or an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.” Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995). The first element of the test is construed broadly, but the second element has been construed narrowly, requiring both a substantial connection in terms of quantity (being more or less permanently assigned to a vessel) and the quality (the nature of the work performed during the assignment). Most of the jurisprudence in the Fifth Circuit has focused on the quantity element, but the Sanchez case focuses on the nature element: the nature of work performed by the injured worker and its connection to the vessel. The Fifth Circuit did not revisit whether a jack-up rig should be considered a vessel under recent Supreme Court precedent, which held that a houseboat is not a vessel. Sanchez undoubtedly satisfies the duration element, having worked over 72% of his time aboard the ENTERPRISE WFD 350, a jack-up rig located on navigable waters and moored next to an inland pier. But did the nature of his work also qualify him for Jones Act seaman status?
As we have previously reported, the Fifth Circuit’s history with this case is storied. A Fifth Circuit panel held in March 2020 that Sanchez was not a seaman for Jones Act purposes. In April 2020, the Fifth Circuit withdrew the panel’s decision and reheard the case. A new panel determined in August 2020 that Sanchez was a Jones Act seaman. Judge W. Eugene Davis, along with the other members of the panel, issued a special concurrence recommending that the court take the case en banc to realign Fifth Circuit jurisprudence with Supreme Court precedent. Last week, the Fifth Circuit voted to rehear the case en banc and withdrew its August opinion. The Fifth Circuit has tentatively calendared oral argument for the week of Jan. 18, 2021, and supplemental briefing by Sanchez is due by the end of this month.
The recommendation for en banc rehearing in the concurrence was concerned that the Fifth Circuit test for determining Jones Act status did not conform with current Supreme Court teachings and cited two prior Fifth Circuit cases in which workers who traditionally would not be considered seamen for Jones Act purposes were held to be such, and were conferred seaman status. The first, In re Endeavor Marine Inc., 234 F.3d 287, 289 (5th Cir. 2000) (per curiam), involved a crane operator who worked on a moored derrick barge in the Mississippi River. The second, Naquin v. Elevating Boats, L.L.C., 744 F.3d 927, 935 (5th Cir. 2014), involved an offshore lift barge and relied on Endeavor Marine to find that a land-based ship repair supervisor and crane operator was a Jones Act seaman while assigned to the lift barge.
The Sanchez concurrence also noted that Fifth Circuit precedent has been at odds with another Supreme Court case, Harbor Tug & Barge Co. v. Papai, 520 U.S. 548 (1997). In Papai, a land-based maintenance worker was not a Jones Act seaman because his work failed to meet the nature of employment requirement since his duties did not “take him to sea.” Id. at 555.
The critical question to be considered en banc, in the “nature of work” element of the seaman status test, is whether the work subjects the injured employee to the “perils of the sea.” Sanchez, a welder who spent 72% of his employment working on a jack-up rig moored near an inland pier, could step off the vessel each day and go home each night. He was not responsible for any navigational operation of the rig although his work furthered the mission of the rig. Whether the nature of his work subjected Sanchez to the perils of the sea will likely be the key question before the Fifth Circuit during the en banc rehearing tentatively scheduled for the week of Jan. 18, 2021. It is likely that the Fifth Circuit will revise its test for determining Jones Act status for workers not directly involved in vessel navigation.
Grady Hurley is a partner in and leader of the maritime litigation and arbitration team and co-chair of the Energy, Environmental & Natural Resources Industry Team at Jones Walker. Since 1979, he has focused on maritime, oilfield, and energy litigation.
Jeanne L. Amy is an associate in Jones Walker's Maritime Practice Group. She focuses on maritime litigation, regulatory, and transactional matters.
The opinions expressed herein are the author's and not necessarily those of The Maritime Executive.