Sanchez v. Smart Fabricators of TX

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

May 11, 2021

No. 19-20506

Lyle W. Cayce

Clerk

Gilbert Sanchez,

Plaintiff—Appellant,

versus

Smart Fabricators of Texas, L.L.C.,

Defendant—Appellee.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:19-CV-00110

Before Owen, Chief Judge, Davis, Jones, Smith, Stewart,

Dennis, Elrod, Southwick, Haynes, Graves, Higginson,

Costa, Willett, Ho, Duncan, Engelhardt, Oldham, and

Wilson, Circuit Judges.

W. Eugene Davis, Circuit Judge.

We took this case en banc to attempt to define for this Circuit a more

definitive test, consistent with Supreme Court caselaw, to distinguish

seamen entitled to benefits under the Jones Act from other maritime workers

generally covered under the Longshore and Harbor Worker’s Compensation

Act.

No. 19-20506

We conclude that the plaintiff in this case, Gilbert Sanchez, a land-

based welder directed by his employer to work on two discrete short-term

transient repair jobs on two vessels, was not a seaman. Because Sanchez was

not engaged in sea-based work that satisfied the requirement that he be

substantially connected to a fleet of vessels in terms of the nature of his work,

we AFFIRM the judgment of the district court.

I. FACTUAL BACKGROUND

The material facts in this case are not in dispute. The plaintiff, Gilbert

Sanchez,1 was employed as a land-based welder by Smart Fabricators of

Texas, LLC (“SmartFab”), a contract welding firm engaged in steel

fabrication, repairs to drilling equipment, and general contract welding work.

SmartFab’s work is performed to meet the demands of its customers on land

and sometimes on jack-up drilling barges. The issues in this case revolve

around Sanchez’s work for SmartFab on two jack-up barges owned by

SmartFab’s customer, Enterprise Offshore Drilling LLC (“Enterprise”).

Sanchez worked for SmartFab for a total of 67 days between

August 2017 and August 2018. Six of those days were spent working on

welding jobs either on land or vessels that are irrelevant to his status as a

seaman because they were not owned or controlled by Enterprise. Sanchez

spent the remaining 61 days—those pertinent to our inquiry—on two

different jack-up drilling rigs owned by Enterprise: the Enterprise WFD 350

and the Enterprise 263.

A. Enterprise WFD 350

Sanchez worked on the Enterprise jack-up barge WFD 350 for 48 days

doing welding work on a discrete repair job. The entire time he worked on

this vessel, it was jacked-up so that the deck of the barge was level with

1

Payroll records indicate that Sanchez worked for SmartFab using the name Jorge Cruz.

2

No. 19-20506

Gabby’s Dock in Sabine Pass, Texas, and separated from the dock by a

gangplank. Sanchez could take two steps on the gangplank, and he was

ashore. He commuted from his home to the vessel daily. His time on the

WFD 350 comprised approximately 72 percent of his total work time with

SmartFab.

B. Enterprise 263

Sanchez worked 13 days on one other Enterprise vessel, the Enterprise

jack-up barge 263. His work on this vessel comprised approximately 19

percent of his time in SmartFab’s employment. When Sanchez was

dispatched to the Enterprise 263 in July 2018, it was located in West

Cameron Block 38 on the Outer Continental Shelf (“OCS”). He was sent as

part of a SmartFab crew that was contracted to perform repairs necessary to

get the vessel in condition to satisfy requirements of the American Bureau of

Shipping (“ABS”), the Bureau of Safety and Environmental Enforcement

(“BSEE”), and the Coast Guard, so that the rig could begin drilling

operations at a new drilling site on the OCS. Sanchez was aboard the rig when

it was moved by tugboats to the new drilling location, South Timbalier Block

125 on the OCS.

Sanchez performed welding and related work on the deck of the

Enterprise 263. On August 8, 2018, he fell and sustained the injury that is the

subject of this suit. Because Sanchez was sent ashore on August 9, 2018,

following his injury, he was unable to complete his assignment and remain

with the SmartFab crew until the repairs were completed on August 10, 2018.

The rig began drilling on August 11, 2018.2 Sanchez left the employ of

2

Counsel for Sanchez confirmed during oral argument that the SmartFab work was

completed on August 10 and drilling began on August 11, 2018 (Oral Argument Recording

at 15:33-15:39), which is consistent with the affidavit of Glen Whitman, Rig Manager of the

Enterprise 263.

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No. 19-20506

SmartFab after his injury and, as far as the record shows, did no more work

on Enterprise vessels.

II. PROCEDURAL HISTORY

After his accident, Sanchez sued SmartFab in state court under the

Jones Act. SmartFab promptly removed the case, but Sanchez moved to

remand, arguing that the Jones Act precluded removal. The district court

denied Sanchez’s motion to remand and granted SmartFab’s motion for

summary judgment, both for the same reason: Sanchez did not qualify as a

Jones Act seaman.3

A. District Court Rulings

The district court concluded that Sanchez failed to establish a

substantial connection in terms of the nature of his work to the Enterprise

fleet of jack-up barges he worked aboard.4 The district court held that

Sanchez spent more than 30 percent of his work time with SmartFab working

on the Enterprise WFD 350 and 263, and that his repair work on those barges

contributed to the function of these vessels.5 Because he contributed to the

function of the vessels, he satisfied prong one of the seaman-status test.6 The

court also held that because Sanchez spent more than 30 percent of his work

time with SmartFab working on those two barges, he met the substantial

connection requirement as to duration.7 However, the district court

concluded that because less than 30 percent of his work on the two vessels

3

See Sanchez v. Enter. Offshore Drilling LLC, No. CV H-19-110, 2019 WL 2515307, at *4

(S.D. Tex. June 18, 2019); Sanchez v. Enter. Offshore Drilling LLC, 376 F. Supp. 3d 726, 733

(S.D. Tex. 2019).

4

Sanchez, 376 F. Supp. 3d at 732.

5

Id.

6

Id.

7

Id.

4

No. 19-20506

was performed away from the dock, he did not satisfy the nature element of

the substantiality requirement and therefore Sanchez was not a seaman.8 For

this reason, the district court denied Sanchez’s motion to remand the case to

state court.9 For the same reason, the district court granted SmartFab’s

motion for summary judgment.10 Sanchez timely appealed both rulings.

B. Panel Opinion and En Banc Review

On appeal, the panel originally held that based upon binding Circuit

precedent, Sanchez satisfied the requirements for seaman status. We based

this on two of our earlier cases: In re Endeavor Marine, Inc.,11 and Naquin v.

Elevating Boats, L.L.C.12 One member of the panel filed a concurring opinion,

joined by the other members of the panel, questioning whether our precedent

was in line with Supreme Court caselaw and proposing that we take the case

8

Id.

9

Id. at 733.

10

Sanchez, 2019 WL 2515307, at *3–4.

11

234 F.3d 287 (5th Cir. 2000) (per curiam).

12

744 F.3d 927 (5th Cir. 2014). Most of the scholarship discussing our two earlier cases is

critical of our holdings. See Kenneth G. Engerrand, Escape from the Labyrinth: Call for the

Admiralty Judges of the Supreme Court to Reconsider Seaman Status, 40 HOUS. J. INT. L. 741,

763–74, 795 (2018); Timothy M. O’Hara, Comment, Naquin v. Elevating Boats, LLC: The

Fifth Circuit’s Improper Expansion of Jones Act “Seaman Status” Qualification, 36 PACE L.

REV. 263, 286 (2015); Matthew H. Frederick, Note, Adrift in the Harbor: Ambiguous-

Amphibious Controversies and Seamen’s Access to Workers’ Compensation Benefits, 81 TEX. L.

REV. 1671, 1705 (2003); L. Taylor Coley, Note, The “Perils of the Sea”- Man Status

Question: The Fifth Circuit Falls Behind FELA’s Advancements in Remedies in Favor of the

Continued Confusion Surrounding the Seaman Definition, 39 TUL. MAR. L. J. 371, 380–81

(2014). But see John R. Hillsman, Still Lost in the Labyrinth: The Continuing Puzzle of Seaman

Status, 15 U.S.F. MAR. L. J. 49, 73–75 (2003). For a general discussion of these cases, see 1

Robert Force & Martin J. Norris, The Law of Seamen § 2:8 Westlaw (database updated Nov.

2020).

5

No. 19-20506

en banc to consider this question.13 The case was voted en banc, and, for the

reasons set forth below, the en banc court agrees that Supreme Court

precedent requires us to affirm the judgment of the district court.

III. APPLICABLE LAW

We review both the denial of a motion to remand and the grant of

summary judgment de novo.14

A. Jones Act and LHWCA

The Jones Act grants “a seaman” a cause of action against his

employer in negligence.15 Only seamen may sue under the Jones Act and

Jones Act claims are “not subject to removal to federal court.”16 Sanchez

argues that because he was a seaman who brought his negligence action under

the Jones Act in state court, the district court erred both in denying his

motion to remand and in granting summary judgment for SmartFab. So, the

only issue for us to decide to resolve this appeal is whether Sanchez is a

seaman (or entitled to have a jury resolve the issue) entitled to the benefits of

the Jones Act.

13

Sanchez v. Smart Fabricators of Texas, L.L.C., 970 F.3d 550, 555–56 (5th Cir.), reh’g en

banc granted, opinion vacated, 978 F.3d 976 (5th Cir. 2020).

14

Holmes v. Atl. Sounding Co., 437 F.3d 441, 445 (5th Cir. 2006), abrogated on other grounds

by Lozman v. City of Riviera Beach, Fla., 568 U.S. 115 (2013).

15

“A seaman injured in the course of employment or, if the seaman dies from the injury,

the personal representative of the seaman may elect to bring a civil action at law, with the

right of trial by jury, against the employer. Laws of the United States regulating recovery

for personal injury to, or death of, a railway employee apply to an action under this section.”

46 U.S.C. § 30104.

16

Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 455 (2001) (noting that 28 U.S.C.

§ 1445(a), which bars removal of certain suits involving railroads, is incorporated into the

Jones Act).

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No. 19-20506

In addition to the Jones Act, another important statute is relevant to

our inquiry. Congress enacted the Longshore and Harbor Worker’s

Compensation Act (LHWCA) in 1927 to establish a federal compensation

remedy for injuries to certain land-based workers occurring on navigable

waters.17 Generally, coverage under this compensation act excluded from its

coverage “a master or member of a crew of any vessel.”18 The LHWCA,

therefore, limits the definition of “seaman” in the Jones Act so as “to confine

the benefits of the Jones Act to the members of the crew of a vessel plying in

navigable waters and to substitute for the right of recovery . . . only such rights

to compensation as are given by the LHWCA.”19 Thus, the seaman’s remedy

is limited to rights granted by the Jones Act, and rights granted to other

maritime workers are provided exclusively by the LHWCA. The two

remedies are mutually exclusive.20

Because Congress has not defined the term “seaman,” the definition

of and distinction between the two groups have been the subject of extensive

litigation, and courts have struggled to establish workable tests to define the

word “seaman.”

17

33 U.S.C. § 903(a).

18

33 U.S.C. § 902(3)(G).

19

McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 347 (1991) (quoting Swanson v. Mora

Brothers, Inc., 328 U.S. 1, 7 (1946)).

20

See id.

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No. 19-20506

B. Supreme Court Trilogy

In the 1990s, the Supreme Court decided three cases that were

enormously helpful in giving meaning to the term “seaman.”

1. Wilander

First was McDermott International, Inc. v. Wilander.21 The Court took

this case primarily to resolve a split among the circuits on the question of

whether a plaintiff, to establish seaman status, was required to show that he

aided in the navigation of a vessel.22 The Court rejected the circuit cases

imposing this requirement and adopted the test set forth in Judge Wisdom’s

landmark decision in Offshore Co. v. Robison, requiring proof that the seaman

“contributed to the function of the vessel or to the accomplishment of its

mission” and have an employment-related connection to a vessel.23 The

Wilander Court emphasized, “The key to seaman status is employment-

related connection to a vessel in navigation.”24

In order to give effect to the land-based/sea-based distinction, the

Court “believe[d] the better rule is to define ‘master or member of a crew’

under the LHWCA, and therefore ‘seaman’ under the Jones Act, solely in

terms of the employee’s connection to a vessel in navigation.”25 The Court

was persuaded that the connection requirement was consistent with

“Congress’ land-based/sea-based distinction,” explaining: “All who work

21

498 U.S. 337 (1991).

22

Id. at 340.

23

266 F.2d 769, 779 (5th Cir. 1959).

24

Wilander, 498 U.S. at 355.

25

Id. at 354.

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at sea in the service of a ship face those particular perils to which the

protection of maritime law, statutory as well as decisional, is directed.”26

2. Chandris

The Supreme Court’s next decision on seaman status came four years

later in Chandris, Inc. v. Latsis.27 In this case, the plaintiff, Latsis, was a

supervising engineer who oversaw an engineering department for a fleet of

six passenger cruise ships.28 Latsis developed a detached retina while sailing

on one of the vessels and sued because of an alleged delay by the employer in

providing medical care.29 Latsis’s duties required him to divide his work

between the office and aboard ship when he sometimes sailed for inspection

and supervision of engineering work.30 The Court was therefore asked to

define the “relationship a worker must have to the vessel, regardless of the

specific tasks the worker undertakes in order to obtain seaman status.”31

After discussing the judicial and legislative history of the passage of the

LHWCA, the Chandris Court stated: “With the passage of the LHWCA,

Congress established a clear distinction between land-based and sea-based

maritime workers. The latter who owe their allegiance to a vessel and not

solely to a land-based employer, are seamen.”32 The Court also pointed out

that Congress, by enacting the LHWCA, had twice overturned the Supreme

Court’s extension of seamen’s remedies to other maritime workers doing

26

Id.

27

515 U.S. 347 (1995).

28

Id. at 350.

29

Id. at 350–51.

30

Id. at 350.

31

Id.

32

Id. at 359.

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seamen’s work and incurring seamen’s hazards.33 Justice O’Connor summed

up the effect of these two congressional acts: “Whether under the Jones Act

or general maritime law, seamen do not include land-based workers.”34

In explaining the importance of the requirement that a seaman have a

substantial, enduring relationship to a vessel, the Court rejected a snapshot

test for seaman status, denouncing a test that inspected “only the situation

as it exists at the instance of injury” and noting that “a more enduring

relationship is contemplated in the jurisprudence.”35 The Court emphasized

that “a worker may not oscillate back and forth between Jones Act coverage

and other remedies depending on the activity in which the worker was

engaged while injured.”36 The Court also recognized that “[s]eaman status

is not co-extensive with seamen’s risk.”37 “Some workers who unmistakably

confront the perils of the sea, often in extreme form, are thereby left out of

the seamen’s protections.”38

The Court then turned to apply these principles to the sufficiency of

plaintiff’s relationship to his employer’s fleet of vessels to qualify for seaman

status. It defined the substantial-connection test with two elements: “a

seaman must have a connection to a vessel in navigation (or to an identifiable

group of such vessels) that is substantial in terms of both its duration and its

33

Id.

34

Id. at 358.

35

Id. at 363.

36

Id.

37

Id. at 361.

38

Id. at 362. For example, Mississippi River pilots who do nothing but pilot ocean-going

vessels through dangerous sections of the river are not seaman because the ships have no

common ownership or control. See Bach v. Trident S.S. Co., Inc., 947 F.3d 1290 (5th Cir.

1991).

10

No. 19-20506

nature.”39 In discussing the duration element, the Court stated that “the

total circumstances of an individual’s employment must be weighed.”40 The

Chandris Court approved our rule of thumb as a guide to the degree of

permanence required to satisfy the duration element. “A worker who spends

less than about 30 percent of his time in the service of a vessel in navigation

should not qualify as a seaman under the Jones Act.”41

Because the record was unclear regarding how much of plaintiff’s time

was spent working on the employer’s vessels as opposed to his land-based

work, the Court remanded the case for application of the stated principles to

the facts.42

3. Papai

The Supreme Court provided more guidance on the nature element

of the substantiality requirement in Harbor Tug and Barge Co. v. Papai – the

third case in this trilogy.43 This case is closely analogous to the facts of the

present case. In Papai, the shipowner, Harbor Tug, was one of several

tugboat operators operating in San Francisco Bay that obtained workers

through a union hiring hall.44 Papai was engaged through the union hall to

paint the housing of a Harbor Tug, the Pt. Barrow.45 The entire time Papai

worked on the Pt. Barrow, it was located dockside.46

39

Chandris, 515 U.S. at 368.

40

Id. at 370 (quoting Wallace v. Oceaneering Int’l, 727 F.2d 427, 432 (5th Cir. 1984)).

41

Id. at 371.

42

Id. at 374–75.

43

520 U.S. 548 (1997).

44

Id. at 551.

45

Id.

46

Id. at 559.

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The Court stated that “[f]or 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.”47 It further explained that “[t]his will give substance to the inquiry both

as to duration and nature of the employee’s connection to the vessel and be

helpful in distinguishing land-based from sea-based employees.”48 The

Court then considered Papai’s actual duties and whether they satisfied the

nature element. It determined, “[h]is actual duty on the Pt. Barrow

throughout the employment did not include any seagoing activity; he was

hired for one day to paint the vessel at dockside and he was not going to sail

with the vessel after he finished painting it.”49

Papai contended that the entire group of vessels he worked on through

the union hiring hall constituted an identifiable group of vessels and his

connection to this “fleet” should be considered.50 The Supreme Court

rejected such a broad definition of “fleet.” The Court stated: “In deciding

whether there is an identifiable group of vessels of relevance for a Jones Act

seaman-status determination, the question is whether the vessels are subject

to common ownership or control.”51

Papai then also argued that he qualified as a seaman if his jobs over the

past two and a half months working on Harbor Tug’s vessels were

considered.52 The Court answered,

47

Id. at 555.

48

Id.

49

Id. at 559.

50

Id. at 555.

51

Id. at 557.

52

Id. at 559.

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Papai testified at his deposition that he worked aboard the Pt.

Barrow on three or four occasions before the day he was

injured, the most recent of which was more than a week earlier.

Each of these engagements involved only maintenance work

while the tug was docked. The nature of Papai’s connection to

the Pt. Barrow was no more substantial for seaman-status

purposes by virtue of these engagements than the one during

which he was injured . . . . In any event these discrete

engagements were separate from the one in question, which

was the sort of “transitory or sporadic” connection to a vessel

or a group of vessels that, as we had explained in Chandris, does

not qualify one for seaman status.53

53

Id. at 559–60. The Second Circuit applied the previous Supreme Court cases to

determine whether a maritime worker had a substantial connection in terms of duration

and nature to satisfy the test for seaman’s status in Matter of Buchanan Marine, L.P., 874

F.3d 356 (2d Cir. 2017). In that case, the plaintiff, Volk, worked at a quarried rock

processing facility on the Hudson River, inspecting and maintaining barges used to

transport rock down the river. Id. at 360. Volk was injured when he slipped from the narrow

deck of one of the barges and sustained injuries. Id. The Second Circuit concluded that as

a matter of law, Volk did not qualify as a seaman under the Jones Act. Id. at 368. The court

held that Volk “did not derive his livelihood from sea-based activities” and “Volk never

operated a barge and only worked aboard the barges when they were secured to the dock.”

Id. at 366 (internal quotation marks and citation omitted).

The Ninth Circuit applied the same Supreme Court cases in Cabral v. Healy Tibbits

Builders, Inc., 128 F.3d 1289 (9th Cir. 1997) to determine whether a barge-crane operator

had a substantial connection in terms of duration and nature in order to be a seaman. The

plaintiff crane operator was working in a quiet harbor with limited movement of the crane

barge. Id. at 1293. Notably, the plaintiff was assigned to the barge for a specific project, and

no evidence was presented that he would continue to work on the barge after the project

was completed. Id. The Ninth Circuit concluded that the crane operator was not a seaman

because he was “a land-based crane operator who happened to be assigned to a project

which required him to work aboard [a crane barge].” Id.

In Delange v. Dutra Const. Co., Inc., 183 F.3d 916, 920 (9th Cir. 1999), the Ninth Circuit

concluded that a reasonable juror could find that the plaintiff carpenter was a seaman.

Although the plaintiff’s job as a carpenter was a land-based trade, the facts in the record

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No. 19-20506

C. Fifth Circuit Precedent

As stated above, the panel concluded that based on two of our cases,

Endeavor Marine and Naquin, it was bound to hold that Sanchez was entitled

to proceed with his Jones Act suit as a seaman.54 The panel in a unanimous

concurring opinion, however, concluded that those two cases were probably

not consistent with the Supreme Court cases discussed above, namely

Wilander, Chandris and Papai, and urged this Court to take the case en banc

so that we could reconsider our circuit law on this question.55

In Naquin, the plaintiff, a vessel repair supervisor, was injured in a

shipyard while working on a fleet of lift boats.56 The lift boats he worked on

were either moored, jacked-up, or docked in the shipyard canal.57 We

rejected the argument that this work did not expose the plaintiff to the perils

of the sea and permitted him to pursue his suit under the Jones Act.58 Because

all of Naquin’s work was performed on or near the dock, and we erred in

analyzing Naquin based solely on the “perils of the sea” test, we must

overrule it.

In Endeavor Marine, the plaintiff, a crane operator, was assigned to

work aboard a derrick barge on the Mississippi River that was usually moored

to the dock, where he loaded and unloaded cargo and helped to maintain the

indicated that carpentry comprised only ten percent of the plaintiff’s work. Id. The rest of

the plaintiff’s work “involved crewman and deckhand duties” where he was a lookout,

cargo stower, line handler, and occasional pilot on a construction barge that moved to

various construction sites. Id. Thus, facts clearly indicated that the plaintiff was a sea-based

worker who did not have a “transitory or sporadic” connection to the vessel.

54

Sanchez, 970 F.3d at 555.

55

Id. at 555–56.

56

744 F.3d 927, 931 (5th Cir. 2014).

57

Id. at 930.

58

Id. at 935.

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No. 19-20506

crane.59 Sometimes, the barge was moved from its base wharf to other wharfs

for loading and unloading ships. On at least one occasion during the 18

months he worked on the barge, the plaintiff rode the barge from one location

to another to operate and perform maintenance on the crane.60 On other

occasions, he drove his automobile to the new location where the barge was

moved.61 We reversed the district court and held that because the plaintiff

was exposed to the perils of the sea, he was a seaman.62

Based on the fact that (1) plaintiff was permanently assigned to and

worked on the same barge during his entire employment, (2) the barge was

moved on occasion to different wharfs on the Mississippi River and the

plaintiff moved to whatever new location the vessel was moved to, we cannot

say the Endeavor Marine panel erred in holding the plaintiff was a seaman.

However, as we explain below, we do not endorse the panel’s rationale.

The panels in Endeavor Marine and Naquin asked whether those

plaintiffs were subject to the “perils of the sea” as the primary test of their

satisfaction of the nature element.63 While this is one of the considerations in

the calculus, it is not the sole or even the primary test.

59

234 F.3d 287, 289 (5th Cir. 2000).

60

In re Complaint of Endeavor Marine, Inc., No. CIV.A. 98-0779, 1999 WL 76586, at *4 (E.D.

La. Feb. 11, 1999).

61

Id. at *1.

62

Endeavor Marine, 234 F.3d at 292.

63

Much of the scholarship addressing seaman status emphasizes that “perils of the sea”

alone is a problematic test for making the land-based and sea-based distinction. See, e.g.,

Matthew H. Frederick, Note, Adrift in the Harbor: Ambiguous-Amphibious Controversies and

Seamen’s Access to Workers’ Compensation Benefits, 81 TEX. L. REV. 1671, 1704 (2003).

15

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D. Distilling the Principles from the Supreme Court Trilogy

In Chandris, the Court made clear that seamen and non-seamen

maritime workers may face similar risks and perils, and that this is not an

adequate test for distinguishing between the two.64 We therefore conclude

that the following additional inquiries should be made:

(1) Does the worker owe his allegiance to the vessel, rather than

simply to a shoreside employer?65

(2) Is the work sea-based or involve seagoing activity?

(3) (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?

Simply asking whether the worker was subject to the “perils of the

sea” is not enough to resolve the nature element. Consider the captain and

crew of a ferry boat or of an inland tug working in a calm river or bay, or the

drilling crew on a drilling barge working in a quiet canal. No one would

question whether those workers are seamen. Yet, their risk from the perils of

the sea is minimal. Considering the more definitive inquiries set forth above

by the Supreme Court, we now examine whether Sanchez was a seaman

under the Jones Act during his employment with SmartFab.

64

See Chandris v. Latsis, 515 U.S. 347, 361–62 (1991).

65

See id. at 359 (citing McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 347 (1991))

(“Congress established a clear distinction between land-based and sea-based maritime

workers. The latter, who owe their allegiance to a vessel and not solely to a land-based

employer, are seamen.”).

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IV. DISCUSSION

As indicated above, Sanchez worked on two vessels during his 67 days

of employment with SmartFab that are relevant to his seaman status. He

worked aboard the Enterprise WFD 350 for 48 of his 67 days and 13 days

aboard the Enterprise 263. His entire time aboard these two vessels was spent

doing discrete welding jobs as part of repairs to the two vessels. This work

certainly contributed to the function of these two vessels because that work

was necessary to keep the vessels in condition to drill for oil and gas. Thus,

Sanchez satisfied the first prong of the seaman-status test.66

Sanchez spent approximately 90 percent of his total employment time

with SmartFab aboard the two Enterprise vessels. He therefore satisfied the

duration prong of the substantiality test. As the Court stated in Chandris,

generally if a worker spends at least 30 percent of his time aboard a vessel or

a fleet of vessels, then he establishes the duration prong. The question

narrows to determine whether Sanchez spent at least 30 percent of his time

aboard these two vessels doing work that satisfies the nature prong of that

test.

As to the work Sanchez did aboard the WFD 350, the Supreme

Court’s decision in Papai makes it clear that this work was not “sea-based”

and therefore did not satisfy the nature test. All of Sanchez’s work on that

66

While Sanchez was working aboard the Enterprise WFD 350 and Enterprise 263, both

vessels were “in navigation” as that term has been defined by the Supreme Court. See

Chandris, 515 U.S. at 374 (noting that a vessel is “in navigation” even though “moored to

a dock, if it remains in readiness for another voyage” and recognizing general rule that

“vessels undergoing repairs or spending relatively short period of time in drydock are still

considered to be ‘in navigation’”) (internal quotation marks and citations omitted); see also

Stewart v. Dutra Const. Co., 543 U.S. 481, 495 (2005) (noting that “in navigation”

requirement is “relevant to whether the craft is ‘used, or capable of being used’ for

maritime transportation”); 1 Robert Force & Martin J. Norris, The Law of Seamen § 2:18

Westlaw (database updated Nov. 2020); 1B Benedict on Admiralty § 11b (2020).

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vessel was performed while it was jacked-up with the barge deck level with

the dock and a gangplank away from shore. Just as Papai’s actual duties on

the Pt. Barrow moored at the dock did not include any “seagoing activity,”

neither did Sanchez’s work on the WFD 350. The Papai Court explicitly

stated that “maintenance work while the tug was docked” did not satisfy the

nature test.67 The Court also found significant the fact that there was no

reason to assume that any particular percentage of Papai’s work would be of

a “seagoing nature” subjecting him to the “perils of the sea.”68 The Papai

Court also found significant that Papai’s “actual duty on the Pt. Barrow

throughout the employment in question did not include any seagoing activity;

he was hired for one day to paint the vessel at dockside, and he was not going

to sail with the vessel after he finished painting it.”69

It is clear from the above Supreme Court cases, that Sanchez, like

Papai, who was working on a vessel at the dock, was not engaged in “seagoing

activity.” His duties on the WFD 350 did not “take him to sea;” his work on

the docked vessel was not “of a seagoing nature;” and after he finished his

67

Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 559 (1997).

68

Id. at 560.

69

Id. at 559. Sanchez argued that Southwest Marine, Inc. v. Gizoni, 502 U.S. 81 (1991)

supports his view that as a ship repairman, he should be considered a seaman. We disagree.

The Court granted review in that case to consider whether a ship repairman is ineligible for

seaman status because “ship repairmen” is one of the enumerated occupations under the

term “employee” as defined in the LHWCA. The Court, without considering the merits

of the plaintiff’s claim to seaman status, stated: “While in some cases a ship repairman may

lack the requisite connection to a vessel in navigation to qualify for seaman status, not all

ship repairmen lack the requisite connection as a matter of law. This is so because ‘[i]t is

not the employee’s particular job that is determinative, but the employee’s connection to

a vessel.” Gizoni, 502 U.S. at 492 (citations and footnote omitted). Therefore, Sanchez is

clearly not barred from obtaining coverage under the Jones Act as a seaman simply because

he was a ship repairer. If he could establish the requisite connection to the Enterprise fleet,

he would be entitled to that protection. We hold he is not entitled to that protection

because he failed to establish that required connection.

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work at the dock, “he was not going to sail with the vessel” after he finished

his work.

With respect to Sanchez’s work on the Enterprise 263, the record

reveals that he reported to that vessel located in the Gulf of Mexico on the

OCS in July 2018, as part of a SmartFab crew engaged to make discrete

repairs on the vessel for a specific reason: to satisfy requirements of the ABS,

BSEE, and Coast Guard, so that the rig could begin drilling at a new location

on the OCS. It is undisputed that Sanchez worked for 13 days on the

Enterprise 263 and that he was injured when he fell on the deck of the rig on

August 8, 2018. After his injury, Sanchez was sent ashore for medical

assistance.

The remainder of the SmartFab crew worked until August 10 or 11,

2018, when the repairs SmartFab agreed to perform were completed. The

vessel began drilling on August 11, 2018, as planned at the new location.70 No

evidence was presented that Sanchez planned to remain after the SmartFab

crew completed their job, and there is no suggestion of any reason he would

plan to do that.

Sanchez worked on the Enterprise 263 only 13 days, which would

amount to less than 20 percent of his total time of his employment with

SmartFab – well short of the 30 percent required for satisfaction of the

duration prong of the substantiality test. Sanchez’s work on the

Enterprise 263, even though it was located on the OCS, was work performed

on a discrete, individual job. When he and the SmartFab crew were finished,

Sanchez would have no further connection to the vessel.

70

As previously noted, Counsel for Sanchez confirmed during oral argument that the

SmartFab work was completed on August 10 and drilling began on August 11, 2018.

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Our case law reveals generally that two types of workers are found on

drilling rigs. First, we have the drilling crew, who conduct the drilling

operations (and workers who support that activity) and stay with the vessel

when it moves from one drilling location to another.71 These workers are the

members of the crew of the vessel and are seamen. The second group are

specialized transient workers, usually employed by contractors. These

workers are engaged to do specific discrete short-term jobs.72 Discrete

transient jobs are like the work done by longshoremen when a vessel calls in

port. As stated in Papai, these workers have only a “transitory or sporadic”

connection to a vessel or group of vessels and do not qualify for seaman

status.73 Sanchez, as a transitory worker, falls into the second group, and thus

does not satisfy the nature test.

71

See Offshore Co. v. Robison, 266 F.2d 769, 771–72 (5th Cir. 1959) (holding that an oilfield

worker was a member of the crew that remained aboard the rig when it was moved to

different well locations was a seaman); Rogers v. Gracey-Hellums Corp., 331 F. Supp. 1287,

1288 (E.D. La. 1970), aff’d, 442 F.2d 1196 (finding that a roughneck permanently attached

to a barge was a member of the crew); Producers Drilling Co. v. Gray, 361 F.2d 432, 436–37

(5th Cir. 1966) (finding that a roustabout who maintained a barge and its equipment as well

as helped drill a well was a seaman).

72

See, e.g., Lirette v. N.L. Sperry Sun, Inc., 831 F.2d 554, 557 (5th Cir. 1987) (holding that a

wireline worker was a “transitory maritime worker” and not a seaman). Lirette was a land-

based wireline operator who performed “one specialized job for many different vessels.”

Id. We stated: “His duties closely resembled those of a transitory maritime worker. As we

stated in Barrett, the distinction between seamen and transitory workers may not be

blurred.” Id. See also Roberts v. Cardinal Serv., Inc., 266 F.3d 368, 378 (5th Cir. 2001)

(discussing that a plugging and abandonment worker injured by a perforation gun attached

to a wireline was not a seaman); Ardleigh v. Schlumberger Ltd., 832 F.2d 933, 934 (5th Cir.

1987) (“[I]tinerant wireline workers are not Jones Act seamen.”); Wilcox v. Wild Well

Control, Inc., 794 F.3d 531, 538–39 (5th Cir. 2015) (holding that a welder was not a seaman

because he was only assigned for one specific project which had a clear two month end

date). See also 1B Benedict on Admiralty § 11e (2020) (collecting cases in Table 4).

73

Papai, 520 U.S. at 559–60.

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V. CONCLUSION

We conclude that Sanchez failed to create a genuine issue of material

fact that he had a substantial connection to the Enterprise fleet of vessels as

it related to the nature of his work. We therefore agree with the district court

that Sanchez failed to meet the requirements for seaman status, and we

AFFIRM the judgment of the district court.

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James L. Dennis, Circuit Judge, concurring:

I concur in the majority opinion because it decides the present case

consistently with the Supreme Court’s decisions in McDermott International,

Inc. v. Wilander, 498 U.S. 337 (1991), Chandris, Inc. v. Latsis, 515 U.S. 347

(1995), and Harbor Tug and Barge Co. v. Papai, 520 U.S. 548 (1997). I write

to note that in future, perhaps more challenging, cases concerning contours

of the Jones Act’s coverage of maritime workers, I would look, in addition to

the majority’s authorities and reasoning, to the enduring writings of the late

Professor David W. Robertson, a leading scholar and practitioner of maritime

law.1 As the majority endeavors to do here, in his article, The Supreme Court’s

Approach to Determining Seaman Status: Discerning the Law Amid Loose

Language and Catchphrases, Prof. Robertson “provides a template for

translating the U. S. Supreme Court’s controlling seaman status cases”

under the Jones Act. 34 J. MAR. L. & COM. 547, 548 (2003). This article

remains, in my view, a pinnacle of scholarship synthesizing the Court’s

jurisprudence on the seaman status issue and serves as a useful guide for

future cases.

1

In addition to benefitting over the years from Prof. Robertson’s outstanding body of

scholarship on maritime and tort law, I also consider myself fortunate to have counted Prof.

Robertson as a friend dating back to our service together on the Louisiana Law

Review. I was indeed lucky to have David serve as my first student editor.

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