Appendix — Icicle Seafoods, Inc. v. Worthington
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6) Supreme Couft. rr.
FIL E
No. 85-195 4
H JOBEPH F. SPANIOL, JR.
1 IN THE * CLERK
|
i
Supreme Court of the United States
OCTOBER TERM, 1985
— he
}
'
i ICICLE SEAFOODS, INC.
+ an Alaska corporation,
: Petitioner.
8
versus
i J LARRY WORTHINGTON, individually,
ROGER CAMERON, individually,
Fay DAVID DAVEY, individually. and
— GERALD KENT, individually.
Respondents.
On Writ of Certiorari
TD to the United States Court of Appeals
1 for the Ninth Circuit
Appendix to Brief of Maryland Casualty Company,
as Amicus Curiae, in Support of Position of Respondents
Seaman Status Reconsidered
by Kenneth G. Engerrand and Jeffrey R. Bale
Eileen Madrid
ABBOTT, WEBB, BEST & MEEKS
; 400 Lafayette Street
“i Suite 200
New Orleans, Louisiana 70130
Telephone: (504) 568-9393
Attorney for Maryland Casualty
Company, as Amicus Curiae
BEST AVAILABLE COPY YC
EDITOR'S NOTE
THE FOLLOWING PAGES WERE POOR
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IF AND WHEN A BETTER COPY CAN BE
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LEAD ARTICLES
SEAMAN STATUS RECONSIDERED
KennetH G. ENGERRAND* AND Jerrrey R. Bu“
I. INTRODUCTION
“It is impossible to define the phrase, ‘member of a crew’ in general
terms; the words rds are colloquial and their fringe wil always be somewhat
ragged. Perhaps the best hope is that, as the successive variants appear,
they will finally serve rudely to fix the border.“ The courts have strug-
gled with the meaning of the terms “seaman” and “member of a crew,”
and Congress has also played a role in their development. Because “words
are flexible, however, “verbal niceties” have been bent “to give protec-
tion to workers injured upon ships. It has even been suggested that
“three men in a tub would fit within our definition, and one probably
could make a convincing case for Jonah inside the whale.
This article will trace the development and expansion of the concept
of seaman status and explore the relationship between the legislation on
* Practicing Attorney, Houston, Texas; Adjunct Professor of Law, South Texas College of
Law; J.D., University of Texas; B.A., Florida State University.
** J.D., South Texas College of Law; B.S., University of Texas at El Paso; associated with
the Houston, Texas firm of Brown, Sims & Ayre.
1. Hawn v. American S.S. Co., 107 F.2d 998, 1000 (2d Cir. 1939).
2. International Stevedoring Co. v. Haverty, 272 U.S. 50, 52 (1926).
3. Warner v. Goltra, 293 U.S. 155, 156 (1934). The reasoning underlying the solicitude
for seamen was stated in the JAMES H. SHRIGLEY, 50 F. 287, 287-88 (N.D.N.Y. 1892):
They are regarded as the wards of the court and every shield and safeguard which
the law can give is thrown around them, both by legislative enactment and judicial
decision. Their uwfulness and importance on the one hand and their proverbial
improvidence an recklessness on the other have made them the objects of solici-
tude in all commercial nations. They are recognized as a thoughtless, imprudent,
rash and impulsive class, ignorant of their rights and easily imposed upon by
sharp and designing men. Admiralty courts which do not follow the harsh and
unyielding rules of the common law, but sit rather as courts of equity, are vigilant
to protect them and hold as void and as of no effect all contracts and stipulations
made by them which are in derogation or relinquishment of any of their general
rights and privileges. It is the aim of the law to shield them from oppression and
take care of their rights and interests by protecting them, not only against the
master, but also against themselves.
See also Harden v. Gordon, 11 F. Cas. 480, 483 (C. C. D. Me. 1823)(No. 6,047).
4. Burks v. American River Transp. Co., 679 F.2d 69, 75 (Sch Cir. 1982)
431
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432 SOUTH TEXAS LAW JOURNAL
the issue and the judicial interpretation of it.
Il. PRE-STATUTORY DEVELOPMENT
Although the seaman status cases are currently in a state of disarray,
the situation has not degenerated significantly from the past century. The
Nineteenth Century brought a plethora of elements for determining sea-
man status, and several of these elements have survived as part of the
current formula. The oldest tests had their basis in the navigation of the
ship.“ This was frequently captured in the requirements that a worker
hand, reef and steer: “(T]he persons engaged on board of her must have
been possessed of some skill in navigation. They must have been able to
‘hand, reef and steer,’ the ordinary test of seamanship. As the days of
sailing vessels passed and the era of steamers took hold,’ the test was
altered: “When the ‘crew’ of a vessel is referred to, those persons are
naturally and primarily meant who are on board her aiding in her naviga-
tion, without reference to the nature of the arrangements under which
they are on board.“
5. See, eg. Black v. The LOUISIANA, 3 F. Cas. 503 (D. Pa. 1804)(No. 1,461) in which
the court stated: “Although the cook and steward are authorized to sue in the admiralty
court, as mariners and part of the crew, yet I have distinguished their cases, as their duties
are distinct from those mariners employed in navigating the ship.” Jd. at 503. Most of the
cases focused on the duties performed by the worker, but the courts also required that there
be a vessel engaged in navigation. See, eg. The SIRIUS, 65 F. 226, 235 (N.D. Cal. 1895).
6. The CANTON, 5 F. Cas. 29, 30 (D. Mass. 1858)(No. 2,388); see also The BUENA
VENTURA, 243 F. 797, 799 (S.D.N.Y. 1916).
7. H Farnam, Tue Seamen’s Act or 1915, S. Doc. No. 333, 64th Cong., Ist Sess. 13
(1916) [hereinafter cited as FARNAM):
A great change has taken place in the last half century in the functions of
seamen on steamboats. Long after steam had become the main motive power,
normal times.
8. The BOUND BROOK, 146 F. 160, 164 (D. Mass. 1906); see also The W.F. BROWN,
46 F. 290 (E.D. La. 1891) in which performers in a circus brought an action for wages
against a vessel being used in connection with the performance of the circus. A floating
circus house was towed between Evansville, Indiana and New Orleans, Louisiana by 2
steamer which was previously operating as a ferry boat. After determining that the craft
which towed the floating circus house was a vessel “engaged in commerce and navigation,”
id. at 291, the court addressed the question whether the claimants were “sailors, —mariners,
—in that they were employed to navigate the vessel.” /d. Although they performed some
duties connected with running the vessel, their “chief substantive business or service was to
perform before an audience.” Id Considering it as “land employment,” the court denied
seaman status to the performers. Id, see also Gurney v. Crockett, 11 F. Cas. 123, 124
SEAMAN STATUS RECONSIDERED 433
The “aid in navigation” test was subtly modified almost from its in-
ception. An example is Trainer u. The SUPERIOR in which musicians
on a canal museum boat made a claim for seamen’s wages. The musicians
claimed that their services as entertainers were required only at stopping
places, and that during the movement of the vessel they assisted in row-
ing and in attending the sails.“ The court stated: “The broadest princi-
ple, however, that has yet been recognized is, that the services rendered
must be necessary, or, at least, contribute to the preservation of the ves-
sel, or of those whose labour and skill are employed to navigate her“.
The court looked to the written contract for the claimants’ services which
provided for “their performances as musicians on board the canal mu-
seum boat. Since the contract had “nothing to do with the navigation
or preservation of the boat or her crew,” the court dismissed the claim for
seamen's wages.
In order to satisfy the aid in navigation test, workers on vessels em-
phasized their incidental duties which were related to the navigation of
the vessel. When this reached the point of fantasy,“ a new test was devel-
oped which brought additional persons under the protection of seaman
status without as much creative job characterization as was necessary
under the aid in navigation test. In The OCEAN SPRAY," the claim was
made by sealers and interpreters’* on a fishing vessel. They attempted to
satisfy the navigation test with evidence that, although they did not stand
watch, they did procure driftwood and water for the vessel, heave the
anchor and clear decks, and help make and reef sail. The court noted
that persons such as surgeons, carpenters, cooks and cabin boys had been
considered seamen, but it was “claimed that this is so for the reason that
these persons all aid in the navigation and preservation of the vessel.
(S.D.N.Y. 1849)(No. 5,874).
9. 24 F. Cas. 130 (E.D. Pa. 1834)(No. 14,136). For a more recent musician's claim to
seaman status, see Stumlicz v. Norwegian Am. Line, 698 F.2d 1192 (11th Cir. 1983).
10. Trainer, 24 F. Cas. at 131.
11. Id.
12. Id.
13. Id.; see also Sageman v. The BRANDYWINE, 21 F. Cas. 149 (D. Mich. 1852)(No.
12,216) in which the court stated: “To entitle one to sue as a mariner, the services rendered
must pertain to the business of navigation, and be such as are necessary, or tend to preserve
the vessel, or take care of those navigating the vessel. Id at 149.
14. In connection with the musicians’ claim in Trainer that they helped in rowing and
attending the sails, the court pointed out: “It was admitted that the musicians worked
sometimes, but it was as they pleased, and no right was claimed of them for such services.
When tired they stopped at their own pleasure, and went below to read. They frequently
refused to work when requested.” Trainer, 24 F. Cas. at 131.
15. 18 F. Cas. 558 (D. Ore. 1876)(No. 10,412).
16. The vessel took on 24 Indians to catch and club seals and 2 interpreters to communi-
cate with them. Besides the master, the crew of the vessel was comprised of a first and
second mate, four men before the mast and a cook. /d. at 558.
17. Id. at 560.
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The court rejected this analysis and held that the workers in The
OCEAN SPRAY were seamen because they were “co-laborers in the lead-
ing purpose of the voyage.” The purpose of the voyage—catchibg
seal—could not have been accomplished without the sealers, and the
rofit of the voyage depended upon them as much as upon the cook or
3 90
It took “a stretch of the imagination” to categorize the employees
performing tasks unrelated to navigation in the same class with “the bold
er skillful mariners who breast the angry waves of the Atlantic;” and
the expansion was a manifestation of the ability of the admiralty courts
to adapt to “new kinds of property and new sets of operatives and new
we aditions which are brought into existence in the progress of the
world. In his original treatise, Benedict foresaw the change:
In the whale ship, the sealing vessel—the codfishing and herring fishing
vessel the lumber vessel—the freighting vessel the. passenger ves-
v __there are other functions besides these of mere navigation, and they
are performed by men who know nothing of seamanship—and in the
great invention of modern times, the steamboat, an entirely new set of
es eratives, are employed, yet at all times and in all countries, all the
who have been necessarily or properly employed in a vessel as
The concept that all co-laborers on the vessel should have the status
of seamen had its origin in Justice Story’s opinion in United States v.
Winn,” in which he equated the word crew with the “ship’s company.
This opened the door to permit such workers as bartenders,” horsemen
and muleteers,“ coopers,” pursers,“ cooks and stewards” and a host of
19. Id.
20. Id.; see also Saylor v. Taylor, 77 F. 476, 479 (4th Cir. 1896) (“contributes in any
degree, however slight to the accomplishment of the main object in which the vessel pers
gaged”); The BUENA VENTURA, 243 F. at 799 (“contribute to and labor about the opera-
dien and welfare of the ship when she is upon a voyage”); The J.S. WARDEN, 175 F. 314,
315 (S.D.N.Y. 1910) (“further the purposes of her voyage”); The MINNA, 11 F. 7159, 760
bo Mich. 1882) (“furtherance of the main object of the enterprise in which she 1
engaged”).
21. Saylor, 77 F. at 479.
22. E. Benepict, THe AMERICAN ApMIRALTY § 241, at 134 (Ist ed. 1850) (footnote
omitted).
23. 28 F. Cas. 733 (D. Mass. 1838)(No. 16,740).
24. Id. at 734. See also United States v. Atlantic Transp. Co., 188 F. 42, 43 (2d Cir.),
cert. denied, 223 U.S. 724 (1911).
25. The J.S. WARDEN, 175 F. at 314, 315.
26. Atlantic Transp. Co., 188 F. at 43; The BARON NAPIER, 249 F. 126, 132 (4th Cir.
1918).
27. United States v. Thompson, 28 F. Cas. 102, 102 (D. Mass. 1832)(No. 16,492).
28. The WANDERER, 20 F. 655, 656 (C.C.D. La. 1880).
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SEAMAN STATUS RECONSIDERED 435
others“ to attain seaman status.
The fact that more workers were awarded seaman status did not
mean that there was uniformity in determining who was a seaman.” In
The OLE OLESON," the claimants were employed as stone-pickers to
gather stone on the shore of Lake Michigan and to assist in loading the
stone on a vessel for transport to Chicago. The workers did not accom-
pany the vessel on her voyages. The court initially noted the “ordinary
test of seamanship,” that the workers be able to “hand-reef and steer.
The court then analyzed the requirements that the workers aid in the
“navigation and preservation of the vessel” and that they be “employed
in promoting the purpose of the voyage. The judge finally cited the
“furtherance of the main object of the enterprise analysis,“ and noted
that in a general sense the stone-pickers were in furtherance of the ves-
sel's employment.“ The crucial fact, however, was that the claimants
were laborers on shore or landsmen.“ Their services were completed
before the voyage ever began. Consequently, they had no lien for
seamen’s wages.“
Despite the inclination of most courts to expand the class of workers
given seamen status, there had been no definitive ruling on the issue as
the Twentieth Century beckoned. To make matters worse, it was time for
the entrance of Congress into the fray. As with other congressional intru-
sions,“ the confusion was just beginning.
29. Allen v. Hallett, 1 F. Cas. 472, 473 (S.D.N.Y. 1849)(No. 223); Smith v. The PEKIN,
22 F. Cas. 620 (E.D. Pa. 1831)(No. 13,090); Turner's Case, 24 F. Cas. 340 (D. Me. 1825)(No.
14,248); Black v. The LOUISIANA, 3 F. Cas. 503. For female cooks see The JAMES H.
SHRIGLEY, 50 F. 287, 288 (N.D.N.Y. 1892); Wolverton v. Lacey, 30 F. Cas. 417, 418 (N.D.
Ohio 1856)(No. 17,932); Sageman v. The BRANDYWINE, 21 F. Cas. 149.
30. See, eg. The CARRIER DOVE, 97 F. 111, 112 (ist Cir. 1899) (fisherman); Saylor v.
Taylor, 77 F. at 479 (employees on a dredge); The MARY ELIZABETH, 24 F. 397 (C.C.S.D.
Ala. 1385) (pilots); The BUENA VENTURA, 342 F. at 799-800 (wireless operator); The
VIRGINIA BELLE, 204 F. 692, 693-94 (E. D. Va. 1913) (engineer who assisted in fishing);
The Murphy Tugs, 28 F. 429, 430-31 (E.D. Mich. 1886) (diver and steam-pump engineer);
The NORTH AMERICA, 18 F. Cas. 339, 340 (E.D.N.Y. 1872)(No. 10,314) (fireman); The
SULTANA, 23 F. Cas. 379 (D. Mich. 1857)(No. 13,604) (clerk); Wilson v. The OHIO. 30 F.
Cas. 149, 150 (E.D. Pa. 1834)(No. 17,825) (pilot, fireman and deckhands).
31. Cases involving longshoremen illustrate the disparate results. Compare Paul v. The
ILEX, 18 F. Cas. 1346 (C.C.D. La. 1876)(No. 10,843); Cox v. Murray, 6 F. Cas. 681 (S.D.N.Y.
1848)(No. 3,304) with The DAISY, 282 F. 261 (9th Cir. 1922); The CANTON, 5 F. Cas. 29.
See also The GEORGE T. KEMP, 10 F. Cas. 227 (D. Mass. 1876)(No. 5,341).
32. 20 F. 384 (E D. Wis. 1884).
Id. at 384 (quoting The CANTON, 5 F. Cas. at 30).
id. at 385.
1d
Id.
Id.
Id. at 385-86.
39. See, eg. Texports Stevedore Co. v. Winchester, 632 F.2d 504 (5th Cir. 1980)(en
banc), cert. denied, 452 U.S. 905 (1981), in which the Fifth Circuit was divided 15 to 8 on
the extent of shoreside coverage of the Longshoremen's and Harbor Workers Compensation
83888
436 SOUTH TEXAS LAW JOURNAL
Ill. THE STATUTORY SCHEME
From 1915 to 1927, Congress passed five statutes in an effort to pro-
vide acceptable remedies for maritime workers. Each act was a response
to a decision from the Supreme Court.
In 1903, the Supreme Court handed down its opinion in The OSCE-
OLA. Patrick Shea, a seaman on the OSCEOLA, was injured while at-
tempting to hoist the gangway in preparation for docking. The vessel was
proceeding at 11 miles per hour against a head wind of 8 miles per hour,
and the force of the wind on the gangway pulled the hoisting derrick over
onto Shea. The questions presented to the Supreme Court by the court of
appeals involved the liability of the vessel for the negligent order of the
master to hoist the gangway under the pr vailing conditions. After a
thorough review of English and American precedents the Court consid-
ered four propositions to be settled law:
1. That the vessel and her owners are liable, in case a seaman falls
sick, or is wounded, in the service of the ship, to the extent of his main-
tenance and cure, and to his wages, at least so long as the voyage is
continued.
2. That the vessel and her owner are, both by English and American
law, liable to an indemnity for injuries received by seamen in conse-
quence of the unseaworthiness of the ship, or a failure to supply and
keep in order the proper appliances appurtenant to the ship.
3. That all the members of the crew, except, perhaps, the master,
are, as between themselves, fellow servants, and hence seamen cannot
recover for injuries sustained through the negligence of another member
of the crew beyond the expense of his maintenance and cure.
4. That the seaman is not allowed to recover an indemnity for the
negligence of the master, or any member of the crew, but is entitled to
maintenance and cure, whether the injuries were received by negligence
or accident.“
Thus, the Court answered the questions posed by the lower court by
Act, 33 U.S.C. §§ 901-50 (1976).
40. 189 U.S. 158 (1903).
41. Id. at 160. The court of appeals posed three questions:
First. Whether the vessel is responsible for injuries happening to one of the
crew by reason of an improvident and negligent order of the master in respect of
the navigation and management of the vessel.
Second. Whether in the navigation and management of a vessel the master of
the vessel and the crew are fellow servants.
Third. Whether, as a matter of law, the vessel or its owners are liable to the
appellee, Patrick Shea, who was one of the crew of the vessel, for the injury sus-
tained by him by reason of the improvident and negligent order of the master of
the vessel in ordering and directing the hoisting of the gangway at the time and
under the circumstances declared; that is to say, on the assumption that the order
so made was improvident and negligent.
42. Id. at 169-75.
43. Id. at 175 (citation omitted).
SEAMAN STATUS RECONSIDERED 437
holding that the vessel was not responsible for the negligent order of the
master.
After the loss of the TITANIC in April, 1912, the safety of ocean
travel was the subject of serious debate both internationally and in Con-
gress.“ The necessity of better training of seamen“ and more stringent
regulations for life-saving equipment,“ together with the desire of abol-
ishing arrest and imprisonment as a penalty for desertion,” led to the
passage in 1915 of An Act to Promote the Welfare of American Seamen in
the Merchant Marine of the United States.“ The final provision of the
Act, section 20, was the subject of no debate and was always treated as an
afterthought.” Section 20 provided: That in any suit to recover damages
for any injury sustained on board vessel or in its service seamen having
command shall not be held to be fellow-servants with those under their
authority.“
The drafters of section 20 apparently intended to overturn the result
in The OSCEOLA, but the Supreme Court quickly ruled that this provi-
sion was inadequate. In Chelentis u. Luckenbach S.S. Co., a fireman on
the J.L. LUCKENBACH suffered a broken leg when he was knocked
down by a wave. He claimed his injuries resulted from the negligent order
of a superior officer, but the trial court directed a verdict against him.”
Congress had dealt with the third point in The OSCEOLA which gave the
employer the fellow-servant defense.“ Congress had failed to realize,
however, that the fourth point in The OSCEOLA independently provided
for no negligence remedy for seamen. The Supreme Court in Chelentis
was willing to give “full effect” to the Statute, but since it only cured half
of the problem, “it was of no consequence . . . to petitioner whether or
not the alleged negligent order came from a fellow servant; the statute is
irrelevant.“
As Congress had done in 1915, it chose to overturn the Supreme
Court’s decision by adding a section to a major piece of shipping legisla-
The court answered the first and third questions in the negative. Id at 177.
FARNAM, supra note 7, at 8; S. Doc. No. 8, 63d Cong. Ist Sess. 1 (1913).
FARNAM, supra note 7, at 4.
Id. at 9, 10-11.
52 Conc. Rec. 4643, 4646, 4650, 4651 (1915).
49. Pub. L. No. 63-302, 38 Stat. 1164 (1915). The full title is An Act to Promote the
Welfare of American Seamen in the Merchant Marine of the United States; to Abolish Ar-
rest and Imprisonment as a Penalty for Desertion and to Secure the Abrogation of Treaty
Provisions in Relation Thereto; and to Promote Safety at Sea.
50. See, eg. H.R. Rep. No. 1439, 63d Cong. 3d Sess. 25, 30 (1915); 52 Conc. Rac. 4639,
4640 (1915).
51. 38 Stat. 1164, 1185.
52. 247 U.S. 372 (1918).
53. Jd. at 379.
54. See supra text accompanying note 43.
55. Chelentis, 247 U.S. at 384.
83888
438 SOUTH TEXAS LAW JOURNAL
tion. The Merchant Marine Act of 1920“ contained the Ship Mortgage
Act,“ amended the Maritime Lien Act of 1910“ and established the
United States Shipping Board.“ Section 33 of the Act received little at-
tention and was enacted on the coattails of the major provisions in the
bill. In essence, it overruled Chelentis and the fourth point in The OS-
CEOLA by granting “any seaman” the negligence action denied him by
the Supreme Court.“
56. Act of June 5, 1920, ch. 250, 41 Stat. 988. The Act, and particularly section 33, have
come to be known as the Jones Act. Senator Wesley L. Jones of Washington was Chairman
of the Senate Committee on Commerce.
57. Id. § 30, 41 Stat. 988, 1000-05 (codified at 46 U.S.C. §§ 911-61 (1976)).
58. Act of June 5, 1920, ch. 250, § 30, 41 Stat. 988, 1005-06 (codified as amended at 46
U.S.C. §§ 971-75 (1976)).
59. Act of June 5, 1920, ch. 250, § 3, 41 Stat. 988, 989-90.
60 The major purpose of the Statute was stated by the Senate Committee on Com-
merce, S. Rur No. 573, 66th Cong. 2d Sess. 3 (1920):
From our viewpoint, however, the most important question, and the most difficult
one, is to take care of the future of our merchant marine and make it what it
ought to be. Not only must this be kept in view in the disposal of our ships, but
we must make provision so that they can be operated and maintained in competi-
tion with the world. We deem it wise to embody provisions dealing with both of
these probiems in one bill.
We assert the need of a merchant marine for the national defense and for our
commercial growth and declare it our policy to do whatever may be necessary to
meet this need.
The major areas of controversy in the Merchant Marine Act of 1920 arose over the nature,
power and discretion of the United States Shipping Board; the nature and extent to which
the United States merchant marine should be subsidized, including the carrying of mail in
United States vessels; the extension of coastwise trade laws to island territories and posses-
sions of the United States, particularly the Philippine Islands; conversion of the United
States government fleet of vessels from World War I to private ownership; government rec-
ognition of the American Bureau of Shipping; priority of the preferred ship mortgage over
liens for necessaries and repairs; nullification of treaties restricting the right of the United
States to impose discriminating customs duties; authority of Panama Railroad Co. vessels to
engage in Central and South American trade and subsidizing new construction of vessels by
the granting of tax exemptions. 59 Conc. Rac. 6803, 6805, 6806-16, 6857-69, 6984-95, 7211,
7223-27, 7274-75, 7293-97, 7336-46, 7347-56, 7409-20 (1920); see also id. at 8163-71, 8338-44,
8398-412, 8442-53, 8465-70, 8493-52, 8572-77, 8588-609.
The provision in the Merchant Marine Act of 1920 deeling with seamen's remedies was
originally introduced by Senator Jones on February 6, 1920 as the final section of S. Res.
3876, 66th Cong., 2d Sess. § 3 (1920), and was added by the Senate Committee on Com-
merce to H.R. Res. 10,378, 66th Cong. ist Seas. (1919). S. Rar. No. 573, 66th Cong. 2d Sess.
23. It was subsequently passed as section 33 of H.R. Res. 10,378 with the addition of a
second sentence: “Jurisdiction in such actions shall be under the court of the district in
which the defendant employer resides or in which his principal office is located.” 59 Conc.
Rec. 8170, 8344, 8404, 8409, 8448, 8452, 8499, 8594, 8596 (1920).
61. Act of June 5, 1920, ch. 250, § 33, 41 Stat. 988, 1007. The original section is codified
at 46 U.S.C. § 688 (1976). The Jones Act was recently amended by changing the former
section 688 into subsection (a) and by adding a subsection (b) to remove certain aliens from
the coverage of the Act. Act of December 29, 1982, Title V, § 503(a), 96 Stat. 1955 (codified
as amended at 46 U.S. C. A. § 688 (West Supp. 1982-83). The Jones Act provides:
(a) Any seaman who shall suffer personal injury in the course of his employment
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SEAMAN STATUS RECONSIDERED 439
In contrast to the paucity of express legislative intent in dealing with
seamen’s remedies, Congress stated its intentions clearly in dealing with
the rights of land-based maritime workers. The struggle between the Su-
preme Court and Congress over land-based maritime workers had its ori-
gin in Atlantic Transport Co. u. Imbrovek.™ Imbrovek was a longshore-
man employed by Atlantic Transport Co. to load copper on the
PRETORIA, owned by Hamburg-American Steam Packet Co. Imbrovek
was struck by a hatch cover which fell into the hold of the vessel, and he
brought suit against the vessel owner and his employer, the stevedore.”
The action was dismissed against the vessel owner, but a judgment was
rendered in Imbrovek’s favor against the stevedore.“ Before the Supreme
Court, the issue was whether the district court had admiralty jurisdiction
may, at his election, maintain an action for damages at law, with the right of trial
by jury, and in such action all statutes of the United States modifying or ex-
tending the common-law right or remedy in cases of personal injury to railway
employees shall apply; and in case of death of any seaman as a result of any such
personal injury the personal representative of such seaman may maintain an ac-
tion for damages at law with the right of trial by jury, and in such action all
statutes of the United States conferring or regulating the right of action for death
in the case of railway employees shall be applicable. Jurisdiction in such actions
shall be under the court of the district in which the defendant employer resides or
in which his principal office is located.
(b)(1) No action may be maintained under subsection (a) of this section or under
any other maritime law of the United States for maintenance and cure for dam-
ages for the injury or death of a person who was not a citizen or permanent resi-
dent alien of the United States at the time of the incident giving rise to the action
if the incident occurred—
(A) while that person was in the employ of an enterprise engaged in
the exploration, development, or production of off-shore mineral or en-
ergy resources including but not limited to drilling, mapping, survey-
ing, diving, pipelaying, maintaining, repairing, constructing, or trans-
porting supplies, equipment or personnel, but not including transporting
those resources by (a)[sic] vessel constructed or adapted primarily to
carry oil in bulk in the cargo spaces; and ;
(B) in the territorial waters or waters overlaying the continental shelf
of a nation other than the United States, its territories, or possessions.
As used in this paragraph, the term “continental shelf” has the meaning
stated in article | of the 1958 Convention on the Continental Shelf.
(2) The provisions of paragraph (1) of this subsection shall not be applicable if
the person bringing the action establishes that no remedy was available to that
person—
(A) under the lows of the nation asserting juriediction over the area in
which the incident occurred; or
(B) under the laws of the nation in which, at the time of the incicent,
the person for whose injury or death a remedy is sought maintained citi-
zenship or residency.
Id. (footnote omitted).
62. 234 U.S. 52 (1914).
63. Id. at 57.
. Id
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440 SOUTH TEXAS LAW JOURNAL
over the claim against the stevedore.“ In upholding the admiralty juris-
diction over the claim, the Court laid the foundation for future conflict:
“Formerly the work was done by the ship’s crew; but, owing to the exi-
gencies of increasing commerce and the demand for rapidity and special
skill, it has become a specialized service devolving upon a class ‘as clearly
identified with maritime affairs as are the mariner.
The decision which precipitated legislation for land-based maritime
workers is Southern Pacific Co. v. Jensen.” Jensen was employed by
Southern Pacific Co. to assist in unloading the defendant’s vessel EL
ORIENTE. Jensen was driving a small electric freight truck out of the
side of the vessel and onto the gangway when it jammed on the gangway.
In trying to free the truck, he forgot to duck and suffered a broken neck
which caused his death. Jensen’s widow and children made a claim under
the New York workmen’s compensation statute,“ and an award was
granted by the New York Workmen's Corapensation Commission.” After
the Supreme Court’s decision in Jmbrovek, the suit fell within the admi-
ralty jurisdiction.“ The question then involved the power of the state to
provide the remedy in a maritime action.
The Supreme Court began its analysis with the constitutional grant
of “judicial power” to the United States over “all cases of admiralty and
maritime jurisdiction,”"* which is »»pplemented by Congress’ power “to
make all laws which shall be necessary and proper for carrying into exe-
cution the foregoing powers . . . .” The Court interpreted these provi-
sions to mean that “Congress has paramount power to fix and determine
the maritime law which shall prevail throughout the country.“ The
Court then stated that “the general maritime law, as accepted by the
Federal Courts, constitutes part of our national law, applicable to matters
within the admiralty and maritime jurisdiction.” After elevating the
general maritime law to the same constitutional status as congressional
legislation,” the Court concluded its analysis by prohibiting interference
from state statutes:
And plainly, we think, no such legislation is valid if it contravenes the
essential purpose expressed by an act of Congress, or works material
65. Id. at 58.
66. Jd. at 62 (quoting The CIRCASSIAN, 5 F. Cas. 702, 702 (E. DN v. 1867)(No. 2,722));
see also The GEORGE T. KEMP, 10 F. Cas. 227, 229-30 (D. Mass. 1876)(No. 5,341).
67. 244 U.S. 205 (1917).
68. N.Y. Worx. Comp. Law (McKinney 1965).
69. Jensen, 244 U.S. at 208-09.
70. Id at 217.
71. U.S. Consr. art. III. § 2.
72. Id. art. I. § 8.
73. Jensen, 244 US. at 215.
74. Id
75. It was in response to this concept that Justice Holmes stated: “The common law is
pot a brooding omnipresence in the sky . . . .” Jd. et 222 (Holmes, J. dissenting).
SEAMAN STATUS RECONSIDERED 441
prejudice to the characteristic features of the general maritime law; or
interferes with the proper harmony and uniformity of that law in its in-
ternational and interstate relations.“
In the case of the New York workmen’s compensation act, the Court
stated that the consequence of each state applying different statutes
“would be destruction of the very uniformity in respect to maritime mat-
ters which the Constitution was designed to establish. Thus, to apply
the New York statute to Jensen’s death was unconstitutional.”
It took Congress less than five months to respond to the Jensen deci-
sion. The drafters of the legislation ignored the primary basis for the de-
cision and instead focused” on the gratuitous language at the end of the
opinion which provided that workmen's compensation was not saved to
suitors from the exclusive grant of admiralty and maritime jurisdiction to
the federal courts. Therefore, the vehicle chosen to overturn Jensen was
a simple addition to the “saving to suitors” clause so that it would also
preserve to claimants the rights and remedies under the workmen’s com-
pensation law of any State
In Knickerbocker Ice Co. v. Stewart, another attempt was me ‘e to
invoke the New York workmen’s compensation statute. in the context of a
maritime death.“ The Supreme Court interpreted the Constitution as
granting to Congress power to legislate in maritime matters on the follow-
76. Id. at 216. |
77. Id. at 217.
78. Id. at 217-18. After holding the application of the New York Statute in the maritime
context unconstitutional, the Supreme Court pointed out that the federal courts have exclu-
sive jurisdiction of admiralty cases, “saving to suitors in all cases the right of a common-law
remedy where the common law is competent to give it.” Judiciary Act of 1789, ch. 20, 1 Stat.
73. 77 (codified as amended at 28 U.S.C. § 133301) (1976)). The Court concluded that the
remedy provided in workmen's compensation statutes “is of a character wholly unknown to
the common law, incapable of enforcement by the ordinary processes of any court, and is
not saved to suitors from the grant of exclusive jurisdiction.” Jensen, 244 US. at 218.
79. 55 Conc. Rec. 7605, 7843 (1917). There was practically no debate on the Statute
because the legislators were convinced that land-based workers should be subject to state
compensation:
Now all that we do is to put longshoremen and stevedores on a parity or equality
with other laborers. I do not think anybody can object to it. I think it is absolutely
fair and is very important to the labor of the country in view of the unrest that
exists among a great many longshoremen and stevedores on account of the present
discrimination against them in the application of State compensation laws.
Id. at 7843 (statement of Rep. Webb). “I think no one can even suggest any reason why a
stevedore or a longshoreman who suffers an accident may not properly have the benefit of
the workmen's compensation law of the State in which he lives and is working.” Id. at 7605
(statement of Sen. Cummins).
80. See supra note 78.
81. Act of Oct. 6, 1917, ch. 97, 40 Stat. 395.
82. 253 U.S. 149 (1920).
83. William E. Stewart was a bargeman employed by Knickerbocker Ice Co. He fell into
the Hudson Raver and drowned, and his widow made « claim for compensation under the
New York Statute. /d. at 155.
—
n Rola oom 1
442 SOUTH TEXAS LAW JOURNAL
ing basis: “The definite object cf the grant was to commit direct control
to the Federal Government; to relieve maritime commerce from unneces-
sary burdens and disadvantages incident to discordant legislation; and to
establish, so far as practicable, harmonious and uniform rules applicable
throughout every part of the Union.”* The Court struck down the Stat-
ute because any legislation by Congress would have to embody its “will
and deliberate judgment,” and the subject was “not for delegation to
others. The Court did, however, indicate a possible solution: “To say
that, because Congress could have enacted a compensation act applica-
ble to maritime injuries, it could authorize the states to do so, as they
might desire, is false reasoning.”
The 1917 legislation attempted to give “claimants” the benefit of
state compensation and was not limited in scope to land-based workers.
In fact, Congress subsequently admitted that the Statute “was intended
to permit the extension of the benefits of the State workmen’s compensa-
tion laws to seamen and other workers on or in connection with ships
In 1920, Congress removed part of the constitutional problem by
enacting the Jones Act covering seamen. In 1922, Congress sought to pro-
vide a remedy for land-based workers by once again amending the saving
to suitors clause to preserve “to claimants for compensation for injuries to
or death of persons other than the master or members of the crew of a
vessel their rights and remedies under the workmen’s compensation law
of any State, District, Territory or possession of the United States, which
rights and remedies when conferred by law shall be exclusive —
Congress believed that by excluding seamen (master or members of the
crew of a vessel) the constitutional requirement of uniformity of the mari-
time law would be fulfilled.” Additionally, however, Congress expressed
Id. at 164.
Id.
Id. (emphasis added).
8. Rur. No. 94, 67th Cong. let Sess. 1 (1921); see also H.R. Rep. No. 639, 67th
, 2d Sess. 9 (1922); 62 Conc. Rec. 7754 (1922).
Act of June 10, 1922, ch. 216, 42 Stat. 634.
89. H.R. Rur No. 639, supra note 87, at 5-9; S. Rar. No. 94, supra note 87, at 6-8. The
drafters of the 1922 Act were encouraged by two recent decisions from the Supreme Court
which indicated that state statutes could have application in the maritime context, Grant
Smith-Porter Ship Co. v. Rhode, 257 U.S. 469 (1922) and Western Fuel Co. v. Garcia, 257
U.S. 233 (1921). Congressman Briggs stated:
In view of the recent decision of the Supreme Court of the United States in the
case of the Western Fuel Co. against Garcia, decided on December 5, 1921, which
limits the previous decisions of the same court in the Jensen and Knickerbocker
Ice Co. cases, and in view of the restricted character of the bill I believe that the
objections heretofore raised have been overcome, and that the power of the State
to include those engaged in longshore work within the terms of the workmen's
compensation acts can be recognized as valid and not in conflict with the maritime
law and admiralty jurisdiction of the United States, and does not destroy the uni-
formity of such maritime law.
62 Conc. Rec. 7755 (1922) (statement of Rep. Briggs). Other decisions involving state stat-
EZ ARE
... ¶¶
SEAMAN STATUS RECONSIDERED 443
its intent that seamen be treated differently from land-based workers.
The legislators pointed out that “Congress has always in legislating dis-
tinguished between these port workers and seamen. It was admitted
that this distinction had been “confused” in the 1917 legislation“ and
that Congress had always intended for seamen to fall within the protec-
tion of federal statutes and for longshoremen to be covered under state
statutes.” As opposed to “seamen who are peripatetic individuals,” the
utes and maritime workers during the period of statutory formulation are Millers’ Indem.
Underwriters v. Braud, 270 U.S. 59 (1926); State Indus. Comm'n v. Nordenholt Corp., 259
U.S. 263 (1922).
90. H.R. Rep. No. 639, supra note 87, at 4.
91. S. Rep. No. 94, supra note 87, at 2.
92. Id. at 2-3.
There is a clear distinction between the two classes, seamen and landsmen, who
work in or about ships, who were confused in the Johnson amendment and in the
situation which arose in the Jensen case. The distin-tions are based upon the facts
of their employment, upon the separate systems of law which have hitherto been
applied them, and the character of employers which, in case of seamen, are ships
or shipowners, and in the case of landsmen in the main, independent local con-
tractors. The seamen in their normal life are migratory. They pass from port to
port, from State to State, from country to country. To permit in their case the
application of the varying laws of the several States in respect to injuries suffered
in the course of their employment would be unfair both to the ship and to the
seamen. . . . Seamen are subject to a special law of the sea which in the United
States is nation wide. Congress legislates in respect to the conditions of employ-
ment of seamen and their relations with their employers. The righis of a seaman
when injured in the course of his employment are governed not by the common
law of torts, but by a special set of rules which are based upon the difference in
the conditions of his employment and those of ordinary land workers. A seaman is
entitled to maintenance, care, and cure at the expense of the ship and to his wages
to the end of the voyage without regard to the question of negligence. When he
reaches port the United States Marine Hospital is open to him without expense on
his part until he is cured of his illness or injury. This form of compensation for —
accidents or illnesses incurred by a seaman is of great antiquity; it marks him off
very clearly from the landsman who works on ships in port. The rules which gov-
ern his right to recover damages for an injury happening at sea because of negli-
gence or fault are different from those which govern the right of recovery of any
other class of workmen. The special treatment which seamen have always had
under the acts of Congress was recently emphasized by the provision in the
merchant marine act of 1920 extending to seamen but not to other maritime work-
ers the same rights of recovery in case of work accidents now enjoyed by interstate
railway employees.
The employer in the case of a seaman is always the owner or charterer of a ship
and he has the use of the peculiar remedies of the admiralty against the ship to
recover his wages, or his damages under the maritime law in case of injury.
Longshoremen and ship-repair men are land workers subject neither to the pe-
culiar conditions nor to the laws which regulate seamen. They form a part of the
labor force of each State exactly as other workmen in the port in which they are
employed. They are not migratory but local; their wages, their conditions of living
are governed by local standards. They do not in all cases form a special class al-
ways employed in this work.
Id. (citation omitted).
444 SOUTH TEXAS LAW JOURNAL
land-based workers such as longshoremen “are part of the local labor
force and are permanently subject to the same conditions as are other
local workmen.“ “The peculiar maritime law, applying to seamen is in-
applicable to their condition and no attempt has been made to apply it to
them.
The 1922 Statute was considered by the Supreme Court in Washing-
ton u. W.C. Dawson & Co.“ After reviewing its decisions in Southern
Pacific Co. v. Jensen and Knickerbocker Ice Co. v. Stewart, the Court
concluded that “the provisions of the Act of 1922 cannot be reconciled
therewith.”** Having twice struck down Congress’ attempted delegation
to the states, the Court strongly hinted that the solution was a federal
compensation statute:
Without doubt Congress has power to alter, amend, or revise the
maritime law by statutes of general application embodying its will and
judgment. This power, we think, would permit enactment of a general
Congress has always in legislating distinguished between these port workers and
seamen. It has assumed full control over the relation of master and servant at sea.
Federal legislation determines the character of the quarters in which the crew is to
be housed, the food to be served to them, hours of labor, reciprocal duties of sea-
man and officer. A Federal statute changed the age-long maritime rule which sub-
jected a sailor leaving his ship to arrest, and made his return on board imperative.
The rights of a seaman against the shipowner in case of injury or sickness are not
at all similar to those which govern the right of recovery in the same case in land
employment. The owner must care for the sick or injured sailor; he must pay his
wages until the home port is reached and then the United States Marine Hospital
Service takes him into its protection till he is recovered to health. He is thus al-
ready to a degree protected by a form of workmen's compensation, since this duty
of the ship and the care in the marine hospitals does not depend upon any fault
imputable to the owner. His right to recover damages was strictly limited by the
law of the sea, but Congress in the merchant shipping act of 1920 gave him a wide
right to recover damages by putting him on a basis with the employees in inter-
state commerce. ;
H.R. Rep. No. 639, supra note 87, at 4.
It seems to me, as to the people who live in the community and are a part and
parcel of the citizenship of that community, that they ought not to be subject to a
different rule from any other citizen of that community. I can see very readily that
a different rule ought to apply to the sailors that may not belong to that commu-
nity at all. If a nonresident sailor comes inside of a harbor and is injured while
there, there is reason why he should not come under the compensation laws of the
State and be entitled to compensation. But as to the men that this bill cover (sic),
it seems to me clearly that the State ought to be responsible and that the State
ought to pay their damages. There can be no good reason for a distinction be-
tween these people and the ordinary citizens of the State. The work of the long-
shoremen has very little to do with shipping as such. They load and unload ves-
sels, repair ships, and do other work of that kind“ largely on the shore.
62 Conc. Rac. 7754 (1922) (statement of Rep. Volstead).
93. H.R. Rep. No. 639, supra note 87, at 2.
94. S. Rep. No. 94, supra note 87, at 3.
95. 264 U.S. 219 (1924).
96. Id. at 227.
SEAMAN STATUS RECONSIDERED 445
employers’ liability law, or general provisions for compensating injured
employees; but it may not be delegated to the several states. The grant of
admiralty and maritime jurisdiction looks to uniformity; otherwise wide
discretion is left to Congress.”
After sending Congress back to the drawing board, the Supreme
Court added the incentive which spurred Congress to accept the Court's
suggestion. In /nternational Stevedoring Co. v. Haverty, a longshore-
man was injured by the negligence of a fellow servant and sued his em-
ployer, a stevedoring company. After noting that “for most purposes
stevedores are not seamen, the Court drew upon its analysis of the
nature of the work performed by the ship’s crew from Atlantic Transport
—— — — — l
Co. v. Imbrovek:'* “But words are flexible. The work upon which the
plaintiff was engaged was a maritime service formerly rendered by the
ship's crew. Despite the congressional attempts to make state compen-
sation the remedy for land-based workers, the Court concluded: “We can-
not believe that Congress willingly would have allowed the protection to
men engaged upon the same maritime duties to vary with the accident of
their being employed by a stevedore rather than by the ship. The
word “seamen” was consequently interpreted “to include stevedores em-
_ ployed in maritime work on navigable waters.
S 0
Within six months of the Haverty decision, Congress passed a uni-
form federal compensation act for land-based maritime workers, the
Longshoremen’s and Harbor Workers’ Compensation Act.“ The Act
97. Id. at 227-28. The policy reasons for striking dawn the Statute were stated as follows:
This cause presents a situation where there was mo attempt to prescribe general
rules. On the contrary, the manifest purpose was to permit any state to alter the
maritime law, and thereby introduce conflicting requirements. To prevent this re-
sult the Constitution adopted the law of the sea as the measure of maritime rights
and obligations. The confusion and difficulty, if vessels were compelled to comply
with the local statutes at every port, are not difficult to see. Of course, some
within the states may prefer local rules; but the Union was formed with the very
definite design of freeing maritime commerce from intolerable restrictions inci-
dent to such control. The subject is national. Local interests must yield to the
common welfare. The Constitution is supreme.
Id. at 228.
98. 272 U.S. 50 (1926).
99. Id. at 52.
100. See supra text accompanying note 66.
101. Haverty, 272 U.S. at 52.
102. Id. Other courts have noted the major differences between longshoremen and
seamen, including the seamen’s surrender of personal rights and liberties, the longshore-
men's right to walk off the job, the seamen’s compelled duty and in the past the flogging
and other punishment of seamen. See, eg. Johnson v. American-Hawaiian S.S. Co. 14 F.2d
534, 534 (W.D. Wash. 1926); Gonzales v. United States Shipping Bd., Emergency Fleet
Corp., 3 F.2d 168, 169 (E.D.N.Y. 1924); C. Flanagan & Sons, Inc. v. Carken, 11 S.W.2d 392,
394 (Tex. Civ. App.—Beaumont 1928, no writ).
103. Haverty, 272 U.S. at 52.
104. t of March 4, 1927, ch. 509, 44 Stat. 1424 (codified as amended at 33 U.S.C. §§
446 SOUTH TEXAS LAW JOURNAL
provided the exclusive remedy against a worker's employer if he was in-
jured “upon the navigable waters of the United States (including any dry
dock). As was the case in the 1922 Statute, the Act excluded “a master
or member of a crew of any vessel” from its coverage.
At one point in the legislative proceedings, seamen were included in
the Act out of fear that the Supreme Court might again strike down the
Statute without them. Opposition from seamen” led Congress to return
to its original intent which was to give land-based workers the same type
of treatment as their similarly-situated neighbors who were subject to
state compensation:
Now, our committee framed one bill called the House bill. Under
that the committee was reluctant to take up the inclusion of seamen.
Afterwards, when the Senate bill came to us, the question was reopened
and rediscussed, and under the dicta of the decision of the Supreme
Court it was felt that perhaps this very bill might be imperiled if we did
not have uniformity. That is what the judges have all cried for. That is
why they have declared unconstitutional in two cases acts of Congress
attempting to give these laboring men compensation.
In obedience to that thought, the committee instructed its chairman
to prepare a bill including seamen. That was done As the opposi-
tion came in such a reasonable manner | felt constrained to yield to it,
and went back to the committee and stated the conditions, and asked
them to authorize the elimination of the seamen from the bill. That was
unanimously granted... .'*
The passage of the LHWCA did not prevent the Supreme Court from
extending its treatment of land-based workers as seamen. After the Court
granted certain longshoremen and harbor workers a seaworthiness action
against the vessel owner, Congress amended the Act in 1972 and
901-50 (1976)) [hereinafter referred to as LHWCA].
105. Id § 3(a). As originally paseod, the coverage provisions were limited to situations in
which recovery for the injury or death could not “validly be provided by State law.” Id. see
Calbeck v. Travelers Ins. Co., 370 U.S. 114 (1962) for the judicial gloss on this limitation.
106. 33 U.S.C. §§ 902(3), 903(a)(1).
107. See 68 Conc. Rac. 2191-92 (1927).
108. Jd. at 5410 (statement of Rep. Graham). One commentator has suggested: “Critics
_ are wrong when they assert that the Harbor Workers’ Act indicates congressional intent to
Congress had tried to treat land-based workers and seamen differently, but the attempt had
| been struck down by the Supreme Court in Dawson. In order to provide some sort of com.
_ pensation remedy for land-based workers along the lines of state compensation, Congress
_ was willing to consider the inclusion of seamen in order to obtain the approval of the Se.
preme Court. It is also important to note that the ultimate result was the exclusion of
_Seamen from the bill despite the fear that the legislation might be held unconstitutional.
109. See infra text accompanying notes 191-212. The vessel owner was then permitted to
_fecover over against the longshoreman’s employer. Ryan Stevedoring Co. v. Pan-Atlantic
88. Corp., 350 U.S. 124, 132-34 (1956). Further impetus for the 1972 Amendments was the
—
SEAMAN STATUS RECONSIDERED 447
eliminated the seaworthiness action for workers covered by the Act.'"
Once again Congress instructed the Supreme Court in its intent that
seamen and land-based workers be treated differently
In reaching this conclusion, the Committee has noted that the seaworthi-
ness concept was developed by the courts to protect seamen from the
extreme hazards incident to their employment which frequently requires
long sea voyages and duties of obedience to orders not generally required
of other workers. The rationale which justifies holding the vessel abso-
lutely liable to seamen if the vessel is unseaworthy does not apply with
equal force to longshoremen and other non-seamen working on board a
vessel while it is in port.“
After eliminating the seaworthiness warranty from land-based work-
ers, Congress substituted a negligence action“ “ so that these workers
would be in the same position as other workers in non-maritime pursuits:
This would place vessels in the same position, insofar as third party lia-
bility is concerned, as land-based third parties in non-maritime pursuits.
The purpose of the amendments is to place an employee injured
aboard a vessel in the same position he would be if he were injured in
non-maritime employment ashore, insofar as bringing a third party dam-
age action is concerned, and not to endow him with any special maritime
theory of liability or cause of action under whatever judicial nomencla-
ture it may be called, such as “unseaworthiness”, “non-delegable duty”,
or the like.“
shoreside limitation on coverage of the LHWCA explained by the Supreme Court in Naci-
rema Operating Co. v. Johnson, 396 U.S. 212 (1969).
110. Longshoremen’s and Harbor Workers’ Compensation Act Amendments of 1972,
Pub. L. No. 92-576, 86 Stat. 1251 (1972).
111. 33 U.S.C. § 905(b). Several other changes were made in the 1972 Amendments. Cov-
erage of the Act was extended shoreside, id. §§ 902(4), 903(a); compensation benefits were
increased, id. §§ 6, 8, 9, 10; administrative changes in claim-handling procedures were made,
id. §§ 7, 13(a), 19(d), 21, 21a, 28, 33(g), 39(c), 44, 49; a negligence remedy was established
against the vessel, id. f 905(b); and indemnification of the vessel by the worker's employer
was eliminated. Id.
112. S. Rep. No. 1125, 92d Cong., 2d Sess. 9-10 (1972); H.R. Rap. No. 1441, 92d Cong.
2d Sess. 6 (1972).
113. 33 U.S.C. § 905(b).
114. S. Rep. No. 1125, supra note 112, at 10; H.R. Rep. No. 1441, supra note 112, at 6.
This concept was repeated several times in the committee reports:
The Committee believes that where a longshoreman or other worker covered
under this Act ia injured through the fault of the vessel, the vessel should be liable
for damages as a third party, just as land-based third parties in non-maritime
pursuits are liable for damages when, through their fault, a worker is injured.
S. Rap. No. 1125, supra note 112, at 8; H.R. Rep. No. 1441, supra note 112, at 4. “Permit-
ting actions against the vessel besed on negligence will meet the objective of encouraging
safety because the vessel will still be required to exercise the same care as a land-based
person in providing a safe place to work.” S. Rep. No. 1125, supra note 112, at 10; H.R. Rap.
No. 1441, supra note 112, at 6.
Under this standard, as adopted by the Committee, there will, of course, be
disputes as to whether the vessel was negligent in a particular case. Such issues
448 SOUTH TEXAS LAW JOURNAL
After the several battles with the Supreme Court in providing reme-
dies for seamen and land-based maritime workers, the intent of Congress
was clear and the Jones Act and LHWCA were finally upheld by the Su-
preme Court.“ The application of the legislation was in the hands of the
judiciary.
IV. SUPREME COURT INTERPRETATION
The Jones Act provides a remedy for “any seaman,” and the
LHWCA provides a compensation remedy for maritime workers who are
not “a master or member of a crew of any vessel.” Neither Act defines
these terms, and the LHWCA does not expressly indicate its effect on the
Jones Act. The relationship between the two Statutes was addressed'** by
the Supreme Court in Swanson v. Marra Brothers, Inc.” A longshore-
man who was injured on the dock sued his employer, a stevedoring com-
pany, under the Jones Act. Prior to the passage of the LHWCA, the Su-
preme Court considered such accidents to fall within the coverage of the
can only be resolved through the application of accepted principles of tort law and
the ordinary process of litigation—just as they are in cases involving alleged negli-
gence by land-based third parties. The Committee intends that on the one hand
an employee injured on board a vessel shall be in no less favorable position vis a
vis his rights against the vessel as a third party than is an employee who is injured
on land, and on the other hand, that the vessel shall not be liable as a third party
unless it is proven to have acted or have failed to act in a negligent manner such
as would render a land-based third party in non-maritime pursuits liable under
similar circumstances.
S. Rep. No. 1125, supra note 112, at 11; H.R. Rep. No. 1441, supra note 112, at 7.
115. Panama R.R. v. Johnson, 264 U.S. 375, 391-93 (1924) (Jones Act); Crowell v. Ben-
son, 285 U.S. 22, 37-65 (1932) (LHWCA).
116. The Supreme Court first had to decide the cases brought under the Jones Act
which arose prior to the passage of the LHWCA. See Jamison v. Encarnacion, 281 U.S. 635
(1930); Northern Coal & Dock Co. v. Strand, 278 U.S. 142 (1928); see also Uravik v. F. Jarka
Co., 282 U.S. 234 (1931). Subsequently, a worker injured on a car float used to transport
railroad cars was restricted to his remedy under the LHWCA in Nogueira v. New York,
N.H. & H. R.R., 281 U.S. 128, 134-38 (1930), and the master of a tug was held to fall within
the Jones Act in Warner v. Goltra, 293 U.S. 155, 162 (1934). In Warner the Court sought
guidance in 46 U.S.C. § 713 (1976) which defines “master” and “seaman” as follows:
In the construction of title 53 of the Revised Statutes, every person having the
command of any vessel belonging to any citizen of the United States shall be
deemed to be the “master” thereof; and every person (apprentices excepted) who
shall be employed or engaged to serve in any capacity on board the same shall be
deemed and taken to be a “seaman”... .
Warner, 293 U.S. at 160-62. The term “seaman” was thus given a broad reading by the
Court. Id. at 159. Since the LHWCA excluded the “master or member of a crew of any
vessel,” the Court was convinced that Congress intended to cover the master of a vessel
under the Jones Act. Id. at 159-60. See infra text accompanying notes 122-38 for a discus-
son of Norton v. Warner Co., 321 U.S. 565 (1944); South Chicago Coal & Dock Co. v. Bas-
sett, 309 U.S. 251 (1940).
117. 328 U.S. 1 (1946).
SEAMAN STATUS RECONSIDERED 449
Jones Act, as the longshoreman was a seaman. The Court set out the
effect of the LHWCA on the Jones Act:
We must take it that the effect of these provisions of the Longshoremen’s
Act is 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 recognized by the Haverty Case only such rights to compensa-
tion as are given by the Longshoremen’s Act.“
The LHWCA left “unaffected the rights of members of the crew of a ves-
sel to recover under the Jones Act when injured while pursuing their mar-
itime employment whether on board or onshore.”'’*® As a longshoreman,
however, Swanson was excluded from the coverage under the Jones
Act.
In South Chicago Coal & Dock Co. v. Bassett, u the Supreme Court
began the task of determining who is covered under the Jones Act as a
“member of « crew.“ A deckhand on a lighter used for fueling steam-
ships with coal drowned, and his widow sought compensation under the
LHWCA. The decedent’s chief task was to facilitate the flow of coal to
the vessel being fueled.“ Additional duties included throwing lines and
some cleaning on the vessel. The Court prophetically set the stage for
the future of seaman status cases: “The word ‘crew’ does not have an
absolutely unvarying legal significance. But after reviewing some of
the standards used in earlier decisions,“ the Court adopted an “aid in
navigation” test to define those workers who were not excluded from the
Jones Act by the LHWCA:
118. See supra text accompanying notes 98-103.
119. Swanson, 328 U.S. at 7.
120. Jd. at 7-8 (citations omitted).
121. Jd. at 6. Since Swanson was injured on the dock and not on navigable waters, he
was not covered under the LHWCA. /d. at 7. His remedy was therefore pursuant to “local
law.” Id. .
122. 309 U.S. 251 (1940).
123. The Court also discussed the effect of the LHWCA on the Jones Act:
We think it is clear that Congress in finally adopting the phrase “a master or
member of a crew” in making its exception, intended to leave to compensation all
those various sorts of longshoremen and harbor workers who were performing la-
bor on a vessel and to whom state compensation statutes were inapplicable.
Id. at 257 (footnote omitted).
i24. His “primary duty” was to remove obstructions from the coal and to free the coal
when it got stuck. Id. at 255.
125. Id.
126. Id. at 258.
127. The Court noted Justice Story’s ship's company” language in United States v.
Winn, 28 F. Cas. 733, 737 (D. Mass. 1838)(No. 16,740) and the “aid in navigation” definition
of crewmembers in The BOUND BROOK, 146 F. 160, 164 (D. Mass. 1906) and in The
BUENA VENTURA, 243 F. 797, 800 (D. Mass. 1917). In The BOUND BROOI., the court
stated: “When the ‘crew’ of a vessel is referred to, those persons are naturally and primarily
meant who are on board her aiding in her navigation, without reference to the nature of the
arrangement under which they are on board.” The BOUND BROOK, 46 F. at 164.
450 SOUTH TEXAS LAW JOURNAL
This Act, as we have seen, was to provide compensation for a class of
employees at work on a vessel in navigable waters who, although they
might be classed as seamen, were still regarded as distinct from members
of a “crew.” They were persons serving on vessels, to be sure, but their
service was that of laborers, of the sort performed by longshoremen and
harbor workers and thus distinguished from those employees on the ves-
sel who are naturally and primarily on board to aid in her navigation.'™
Although the decedent was a member of the complement of deck-
hands on the vessel, the Court emphasized his “primary duty” of facili-
tating the flow of coal.“ He slept at home and was an hourly worker.“
The Court concluded that the decedent was excluded from the Jones Act,
since he was “in the position of longshoremen or other casual workers on
the water.
Four years after Bassett, the Supreme Court began the expansion of
its aid in navigation test for seaman status. In Norton u. Warner Co.,“ a
boatman on a barge was injured while shifting the barge at a pier. The
claimant’s duties consisted of taking general care of the barge; he ate and
slept on the barge and he had no duties ashore.““ In determining whether
his remedy fell under the Jones Act or LHWCA, the Supreme Court
noted its aid in navigation test from Bassett,“ but the Court began to
confuse the terms seaman and member of a crew. Although the Court
acknowledged that the term seaman “may” have a broader meaning than
crewmember,'* the Court expanded its definition of crewmember to en-
compass the test for seaman status that had been deveioped prior to the
passage of the Jones Act and LHWCA:
But navigation is not limited to putting over the beim. It also em-
braces duties essential for other purposes of the vessel. Certainly mem-
bers of the crew are not confined to those who cam “hand, reef and
steer.” Judge Hough pointed out in The Buena Ventura that “every one
is entitled to the privilege of a seaman who, like seamen, at all times
contributes to and labors about the operation and welfare of the ship
when she is upon a voyage.
128. Bassett, 309 U.S. at 260 (emphasis added) (citation omitted).
129. Id.
130. Id.
131. Jd. (quoting Scheffler v. Moran Towing & Transp. Co., 68 F.2d 11, 12 (2d Cir.
1933). Since the case originated as a claim for compensation under the LHWCA, a deputy
commissioner made the fact finding whether the decedent was a member of the crew and
thus excluded from coverage of that Act. Bassett, 309 U.S. at 257. The Supreme Court
pointed out that if there was evidence to support the finding, it was conclusive. /d. at 258.
132. 321 U.S. 565 (1944).
133. Id. at 567-68.
134. Id. at 571-72.
135. Id. at 572 n.5 (citing Haverty, 272 U.S. 50).
136. Norton, 321 U.S. at 572 (emphasis added)(citation omitted)(quoting The BUENA
VENTURA, 243 F. at 799).
SEAMAN STATUS RECONSIDERED 451
The Court concluded: “We think that ‘crew’ must have at least as broad a
meaning under the Act.“ “ The Court pointed out that the claimant had
“that permanent attachment to the vessel which commonly characterizes
a crew. but by incorporating into the definition of crewmember con-
cepts used to define seaman, the Court began the process of chipping
away at Congress’ intended coverage under the LHWCA.
The Bassett and Norton cases established “aid in navigation” and
“permanent attachment” tests for seaman status. A third requirement
was promulgated in Desper v. Starved Rock Ferry Co. The defendant
in Desper operated a small fleet of sightseeing motorboats in the Illinois
River during the summer months. Desper was employed in April, 1947 to
help prepare the vessels for the summer season, and he worked as a boat
operator during the summer. After the season closed, he helped prepare
the boats for winter storage on land, and his employment terminated in
December.“ Desper was re-employed the following March to prepare the
vessels for the coming season, but he was killed in the process. After
noting that his work at the time of the accident “was not that usually
done by a seaman, tbe Court emphasized that “there was no vessel
engaged in navigation at the time of the decedent’s death.“ Thus, the
Court held as a matter of law that Desper did not have seaman status.
The addition of the “vessel engaged in navigation” test in Desper
marked the end of the Supreme Court’s formulation of standards to guide
the lower courts in resolving seaman status questions. The years 1955 to
1958 brought four decisions from the Court which altered the relationship
between the Jones Act and LHWCA and brought chaos to the determina-
tion of the remedies applicable to maritime workers.
Gianfala v. Texas Co.“ involved an appeal from the Fifth Circuit,“
which had reversed a judgment in favor of a worker on a barge. Oscar
Martin died while unloading pipe from a vessel onto the drilling barge.'*’
At the time of his accident the barge was engaged in drilling for oil and
was sitting firmly on the bottom,’ having been sunk by flooding com-
partments in the barge with water.“ Martin's widow filed suit under the
137. Norton, 321 U.S. at 572.
138. Id. at 573.
139. 342 U.S. 187 (1952).
140. Id. at 188.
141. Jd. at 189.
142. Id. at 190.
143. Jd. at 191.
144. Id. at 192.
145. 350 U.S. 879 (1955).
146. Texas Co. v. Gianfala, 222 F.2d 382 (5th Cir. 1955).
147. Id. at 384 n.2.
148. The drilling barge had been used only in the Lake Pelto-Bay Sainte Elaine-Lake
Barre and Caillou Island Area. /d. at 384-85 n.2.
149. Id.
452 SOUTH TEXAS LAW JOURNAL
Jones Act, and the trial court entered a judgment in her favor based on a
jury verdict.’
The evidence of seaman status in Gianfala came from one witness
and was “undisputed, undiscredited and unimpeached. Thus, the
Fifth Circuit concluded that the issue of seaman status was not a ques-
tion of fact for the jury but a question of law to be resolved by the
judge. On the testimony presented the Fifth Circuit concluded that the
vessel was not in navigation and that as “a member of a drilling crew”
Martin was not “a member of a ship’s crew.“ % Since the trial court en-
tered its judgment that Martin was a seaman “merely because the jury
said he was,” “ordinary principles governing the function of court and
jury” had been abandoned.
The Supreme Court had a higher regard for the function of the jury
in Jones Act cases and reversed the judgment of the Fifth Circuit.““
Without explanation’™ the Court in two brief sentences remanded the
case to the district court with directions to reinstate its judgment.
The next decision from the Supreme Court, Senko v. LaCrosse
Dredging Corp.,“ provided more insight into the resolution of seaman
status than Gianfala. Senko was employed as a handyman to assist in
dredging a slough to bypass a rocky section in the Mississippi River.
Again, the appellate court reversed a jury verdict in tavor of the plain-
tiff." Although the Supreme Court pointed out that it does not nor-
mally sit to re-examine a finding of the type that was made below, the
majority believed that the decision in Bassett had “not been fully under-
stood. The majority considered the holding in Bassett to be that “the
determination of whether an injured person was ‘a member of a crew’ is
to be left to the finder of fact. This gave the jury the discretion to
determine seaman status in the same manner as any other fact: “The
essence of this discretion is that a jury’s decision is final if it has a reason-
able basis, whether or not the appellate court agrees with the jury’s esti-
150. Id. at 386.
151. Jd. at 384.
152. Id. at 386.
153. Id. at 387 (emphasis supplied).
154. Id. (emphasis supplied).
155. Gianfela, 350 U.S. at 879.
156. The Court did cite four cases to support its action: Bassett, 309 U.S. 251; Summer-
lin v. Massman Constr. Co., 199 F.2d 715 (4th Cir. 1952); Wilkes v. Mississippi River Sand
& Gravel Co., 202 F.2d 383 (6th Cir.), cert. denied, 346 U.S. 817 (1953); Gahagan Constr.
Corp. v. Armao, 165 F.2d 301, 305 (ist Cir.), cert. denied, 333 U.S. 876 (1948).
157. Gianfala, 350 U.S. at 879.
158. 352 U.S. 370 (1957).
159. Senko v. La Crosse Dredging Corp., 7 Ill. App. 2d 307, 315, 129 N.E.2d 454, 458
(1955).
160. Senko, 352 U.S. at 373-74.
161. Id. at 374.
162. Id.
SEAMAN STATUS RECONSIDERED 453
mate. Therefore, the sole question should be “whether there is an evi-
dentiary basis for the jury’s unding.“
Senko performed substantially all of his duties “on or for the
dredge,” and the Supreme Court consequently considered him to be per-
manently attached to and employed by the dredge as a member of its
crew. u Additionally, his duties of cleaning the deck, splicing rope, stow-
ing supplies and keeping the dredge “in shape” created a “normal infer-
ence” that Senko was responsible for the dredge’s seaworthiness.'* Ad.
ding his duties of taking soundings and cleaning navigation lights,“ * the
Court concluded that “his duty was primarily to maintain the dredge dur-
ing its anchorage and for its future trips, and that he would have a signifi-
cant navigation function when the dredge was put in transit. Since
this constituted evidence that Senko was a member of the dredge’s
crew,” the jury’s verdict had to be sustained.
In Grimes v. Raymond Concrete Piling Co., we the defendant had
been contracted by the United States to install a radar warning station
known as a “Texas Tower” 110 miles seaward of Cape Cod. The Texas
permanent site, Grimes performed only pile driving duties. Six days after
the tower was placed in its permanent position, Grimes was sent to a
nearby barge to prepare for transfer to the tower of construction materi-
als transported on the barge. After working six hours on the barge,
Grimes was injured while being transferred to the tower on a Navy life
ring.“ Grimes brought suit claiming seaman status as a crewmember of
the barge servicing the tower and/or the Texas Tower. Although the
trial court considered that Grimes “might be regarded as a member of the
crew of the barge, * the judge granted an instructed verdict!” on the
ground that Grimés’ exclusive remedy was under the Defense Base Act.
163. Id.
164. Id. at 372.
165. Id.
166. Jd. at 372-73.
167. Id. at 373.
168. Id. at 374.
169. Jd. There was no question raised whether there was a vesse! engaged in navigation.
Id. at 371 n.1.
170. 356 U.S. 252 (1958).
171. Jd. at 254-55 (Harlan, J., diasenting).
172. Grimes v. Raymond Concrete Pile Co., 245 F.2d 437, 438 (1st Cir. 1957).
173. Id.
174. Id.
175. 42 U.S.C. §§ 1651-54 (1976). Section 1651 provides exclusive liability of the em-
ployer under the LHWCA for certain construction performed for the United States on the
outer Continental Shelf, inter alia. Section 1654, however, excludes “a master or member of
454 SOUTH TEXAS LAW JOURNAL
The First Circuit affirmed the instructed verdict, but it did so because
that court did not consider Grimes a seaman.'” His presence on the barge
for six hours was only “sporadic or temporary” and did not constitute “a
more or less permanent connection” between Grimes and the barge.'”’
Additionally, even if the Texas Tower might have been considered a ves-
sel during the tow, the First Circuit concluded that “it had certainly
ceased to be a vessel at the time of the accident.
In the short Supreme Court opinion, one sentence was devoted to
reversing the First Circuit on the seaman status issue: “We hold further,
however, in disagreement with the Court of Appeals, that the petitioner's
evidence presented an evidentiary basis for a jury's finding whether or
not the petitioner was a member of a crew of any vessel. The Supreme
Court did not state whether the barge, tower or both provided the sea-
man status, but by citing its decisions in Senko, Gianfala and Bassett,“
the Court plainly indicated its displeasure with the instructed verdict in
seamen's cases.
The final decision from the Supreme Court on seaman status came
one week after Grimes. In Butler u. Whiteman’ the defendant owned a
wharf on the Mississippi River together with a barge which was moored
to the wharf and a tug which was lashed to the barge. The tug had no
Coast Guard certificate and no steam had been raised on it during the
year in which Butler’s accident occurred. Dupree Butler was engaged to
clean the boilers on the tug in preparation for a Coast Guard inspection.
Butler was last seen alive running across the barge to the tug, and it was
the plaintiff's theory that he fell into the river between the tug and barge
as a result of the defendant’s failing to furnish a gangplank between
them.“
The trial court granted an instructed verdict for the defendant which
the Fifth Circuit affirmed because the tug was a “dead ship” with no
crew.“ The Supreme Court reversed and again explained in one sentence
that the “evidence presented an evidentiary basis for jury findings as to
(1) whether or not the tug G. W. Whiteman” was in navigation; (2)
whether or not the petitioner’s decedent was a seaman and member of the
a crew of any vessel” from the coverage under the Statute.
176. Grimes, 245 F.2d at 440.
177. Id.
178. Id.
179. Grimes, 356 U.S. at 253.
180. Id.
181. 356 U.S. 271 (1958).
182. Jd. at 272 (Harlan, J., dissenting).
183. Harris v. Whiteman, 243 F.2d 563, 564 (5th Cir. 1957).
184. Butler, 356 U.S. at 272 (Harlan, J., dissenting).
185. Harris, 243 F.2d at 564. The Fifth Circuit also concluded that there could be no
__ negligence because there was no room between the barge and tug in which Butler could have
fallen into the water. Id.
SEAMAN STATUS RECONSIDERED
455
crew of the tug within the meaning of the Jones Act. e 4, in
Grimes, the Supreme Court in Butler cited its decisions in Senko, Gi-
anfala and Bassett!“ as instruction to the lower courts to submit Jones
Act cases to the jury rather than deciding them on a summary basis.
The decision in Butler v. Whiteman brought an end to the era of
Supreme Court interpretation of seaman status. After fighting several los-
ing battles with the Supreme Court, Congress had enacted legislation
which covered members of a crew under the Jones Act and longshoremen
and other harbor workers under the LHWCA. The passage of the
_LHWCA severely limited the coverage under the Jones Act, and the ini.
tial decisions of the Supreme Court in Swanson, Bassett, Norton and
Desper delineated the boundaries of these Statutes and promulgated
standards to guide the lower courts in cases brought by maritime workers.
In 8its subsequent zeal to submit Jones Act cases to juries, however, the
Supreme Court erased the line between the Jones Act and LHWCA in
Gianfala, Grimes and Butler. The Court judicially overturned a substan-
tial portion of the LHWCA coverage which supposedly restricted the
Jones Act to the “master or member of a crew of any vessel.” After this
final series of Supreme Court decisions,“ the term seaman would “mean
nothing more than a person injured while working at sea.
. While the Supreme Court narrowed the coverage of the LHWCA by
expanding the exception for crewmembers, the Court did not convert all
longshoremen and harbor workers into seamen under the Jones Act.'*
The Court did, however, give many of the non-seamen the traditional
maritime remedy of the warranty of seaworthiness. In Seas Shipping Co.
b. Sieracki,*** the Supreme Court extended its analysis in Imbrobek
that longshoremen perform seaman’s work. Sieracki was a longshoreman
and could not bring suit against his employer because of the exclusive
liability provision in the LHWCA.'* That Act did not expressly bar suits
against the vessel owner,“ however, and the Court resurrected its treat-
— — ae ay
= ae
KB — —— —— 2
186. Butler, 356 U.S. at 271 (citations omitted). The Court also concluded that there was
evidence to support a finding that the employer's negligence played a part in producing
Butler’s death. Id.
187. Id. The Court also cited its decision the week before in Grimes and the decision of
the First Circuit in Carumbo v. Cape Cod S.S. Co., 123 F.2d 991 (Ist Cir. 1941).
188. Although the Supreme Court has addressed some related questions in subsequent
decisions, the Court has refused to hear seaman status cases after Butler See, eg. Braen v.
Pfeifer Oil Transp. Co., 361 U.S. 129 (1959).
189. Grimes, 356 U.S. at 255 (Harlan, J., dissenting).
190. In addition to Bassett, Swanson and Desper, see, eg. Pennsylvania R.R. v.
O' Rourke, 344 U.S. 334 (1953); Parker v. Motor Boat Sales, 314 U.S. 244 (1941); Nogueira v.
New York, N.H. & H. R.R., 281 U.S. 128 (1930).
191. 328 U.S. 85 (1946).
192. See supra text accompanying notes 62-66.
193. The exclusive liability provision is currently codified at 33 U.S.C. § 905(a).
194. “Congress by that Act [LHWCA] not only did not purport to make the stevedore’s
remedy for compensation against his employer exclusive of remedies against others. It ex-
456 SOUTH TEXAS LAW JOURNAL
ment of longshoremen as seamen: “For these purposes he is, in short, a
seaman because he is doing seaman’s work and incurring a seaman’s
hazards. One of the “protections” imposed by the law “incidental to
the performance of that service” is the warranty of seaworthiness.'*
Thus, even though excluded from seaman status under the Jones Act, a
class of workers performing seaman’s work attained quasi-seaman status
and became known as Sieracki seamen. “
After the expansion in the 1940’s and 1950’s, the year 1959 brought a
retrenchment in the broadening of seaman and quasi-seaman status. The
trend began with United New York and New Jersey Sandy Hook Pilots
Association v. Halecki.““ An electrician was killed while assisting in over-
hauling the generators on a pilot boat. Ignoring the language in Sieracki
that seaman status is based upon “incurring a seaman’s hazards, the
Court focused on the nature of the service performed by the worker. The
electrical work in dismantling the generators requirec special skill and
special equipment.“ This was not the type of work performed by
crewmembers of the vessel, and consequently the warranty of seaworthi-
ness was not owed to the electrician.™
pressly reserved to the stevedore a right of election to proceed against third persons respon-
sible for his injury . . . .” Sieracki, 328 U.S. at 101 (footnote omitted). The Supreme Court
discussed the effect of the LHWCA on its Haverty decision:
The legislation therefore did not nullify any right of the longshoreman against
the owner of the ship, except possibly in the instance, presumably rare, where he
may be hired by the owner. The statute had no purpose or effect to alter the
stevedore’s rights as against any but his employer alone. Beyond that conse-
quence, moreover, we think it had none to alter either the basic policy or the
rationalization of the Haverty decision. Because the recovery under the Merchant
Marine Act of 1920 was limited to the employer, the necessary effect of the Long-
shoremen’s and Harbor Workers’ Act, likewise so limited, was to substitute its
remedy for that provided under the preexisting legislation and the Haverty deci-
sion’s construction of it. There was none to nullify the basic and generally applica-
ble policy of that decision or to affect the validity of its foundations in other
applications.
Id. at 102.
195. Id. at 99.
196. Jd. at 100.
197. Sieracki searnen were not crewmembers and therefore were not Jones Act seamen.
They were not entitled to maintenance and cure, and they had a negligence remedy against
the vessel owner. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 413 (1953).
198. 358 U.S. 613 (1959).
199. See supra text accompanying note 195. See also Pope & Talbot, Inc v Hawn, 346
U.S. at 413, in which the Supreme Court stated the following in support of its holding that
the warranty of seaworthiness extended to a carpenter:
His need of protection from unseaworthiness was neither more nor less than
that of the stevedores then working with him on the ship or of seamen who had
been or were about to go on a voyage. All were subject to the same danger. All
were entitled to like treatment under law.
200. Halecki, 358 U.S. at 617.
201. Id. at 618. The Court stated the justification for the absolute and nondelegable duty
SEAMAN STATUS RECONSIDERED 457
The last decision of the Supreme Court which denied a worker sea-
man status under the Jones Act, Desper v. Starved Rock Ferry Co., was
based upon the absence of a vessel engaged in navigation.“ This anal-
ysis was applied to Sieracki seaman in West v. United States.“ A “Lib-
erty” ship built during World War II had been totally deactivated for
several years in the “moth-ball fleet. In 1951 a contractor was hired to
reactivate the vessel and prepare her for sea duty. West was employed by
the contractor and was injured while working inside the low pressure cyl-
inder of the ship’s main engine. In holding that the vessel was not “in
maritime service so as to give rise to a warranty of seaworthiness, the
Court stated:
It would appear that the focus should be upon the status of the ship, the
pattern of the repairs, and the extensive nature of the work contracted to
be done, rather than the specific type of work that each of the numerous
shore-based workmen is doing on shipboard at the moment of injury.“
In Roper v. United States,“ a longshoreman was injured on a previ-
ously mothballed liberty ship which was being used for storage of grain.“
The “ship” was towed to and from a grain elevator to load and discharge
| the grain, but the Supreme Court did not consider this a “navigational
use. Its movement was not to transport cargo but to move it out of the
way so that it could act as a warehouse.“ Since it was not a vessel in
navigation,“ no warranty of seaworthiness was owed.“
After its era of resurrecting the Jones Act from the restrictions
placed upon it by Congress in the LHWCA, the Supreme Court recanted
slightly in the Sieracki seaman cases, Halecki, West and Roper. The pen-
ultimate sentence in the majority opinion in Roper indicates that the
Court considered its analysis in these cases to be applicable in Jones Act
cases as we 1: “This limitation is analogous to that applied in libels under
the Jones Act, where it has long been held that recovery is precluded if
the ship is not a vessel in navigation.“ Since the Supreme Court has
4
;
owed by the vessel owner: “He [the seaman] is subject to the rigorous discipline of the sea,
and all the conditions of his service constrain him to accept, without critical examination
and without protest, working conditions and appliances as commanded by his superior of-
‘ficers.” Id. at 616-17 (quoting Mahnich v. Southern S.S. Co., 321 U.S. 96, 103 (1944)).
See supra text accompanying notes 139-44.
361 U.S. 118 (1959).
Id. at 119.
Id.
368 U.S. 20 (1961).
Id. at 21.
210. Id. at 23.
211. Jd.
222. Id. at 23-24.
213. Id. at 24.
SESEREES
8
458 SOUTH TEXAS LAW JOURNAL
not written an opinion on Jones Act seaman status since the 1950’s, the
battlefield has moved to the lower courts.
After the Supreme Court bowed out of the seaman status arena, Con-
gress intervened in 1972 to remove from land-based maritime workers the
seaman’s remedy of the warranty of seaworthiness granted them by the
Supreme Court in Sieracki. The LHWCA had been passed in 1927 to
overrule Haverty which had given those laborers status under the Jones
Act.“ The Supreme Court restored a portion of their status by granting
them a seaworthiness warranty against the vessel owner in Sieracki,’"*
but Congress removed this action in order to return land-based workers
to land-based remedies.*** With this amendment, Congress joined the Su-
} preme Court in leaving the determination of the status of maritime work-
ers to the lower courts.
V. THE JONES ACT DEFENDANT
The Jones Act specifies that an action may be brought by “any sea-
man,“ and the LHWCA has limited the class of seamen covered to “a
master or member of a crew of any vessel. The Jones Act does not,
however, specify the party who is liable to the seaman. The only guidance
comes at the beginning and end of the Statute which provides that the
injury must occur “in the course of his employment” and that
“[{jJurisdiction” shall be in the district in which the “defendant employer”
resides or has his principal office..
The leading case is Cosmopolitan Shipping Co. v. McAllister*** in
which the Supreme Court addressed the question whether a general agent
for the vessel owner could be held liable under the Jones Act. In order to
resolve the issue, the Court had to determine who is the proper Jones Act
defendant. The Court stated: “As § 33 shows on its face, a seaman has the
advantages of the Act only against his employer“ The majority also
had “no doubt that under the Jones Act only one person, firm, or corpo-
ration can be sued as employer. After this discussion, however, the
Court pointed out that the defendant’s duties were limited to those of a
ship’s husband and did not include “actual management or navigation of
the vessel. Some commentators have seized upon this gratuitous lan-
214. See supra text accompanying notes 98-103.
215. See supra text accompanying notes 191-97.
216. See supra text accompanying notes 110-14.
217. 46 U.S.C.A. § 688(a).
218. 33 U.S.C. §§ 902(3), 903(a)(1).
219. 46 U.S.C.A. § 688(a). The recent amendment to the Jones Act speaks of a worker
“in the employ of an enterprise... d. § 688(b).
220. 337 U.S. 783 (1949).
221. Id. at 787 n.8.
222. Id. at 791.
223. Id. at 796; see also id. at 798.
SEAMAN STATUS RECONSIDERED 459
:
guage in Justice Reed’s majority opinion to downgrade to the status of
dictum his direct statements about the necessity of an employment rela-
tion and to conclude that this is an open issue.* After a period of initial
confusion, the lower courts have almost uniformly adopted Justice Reed’s
“dictum.”
| Problems with the proper Jones Act defendant normally arise in the
situation in which one or more independent contractors employ persons
on vessels owned by third parties. Some of the initial lower court deci-
sions contain language indicating that the defendant must control or op-
_ erate the vessel on which the worker is claiming crewmember status.“
The issue was presented** to the Fifth Circuit in Barrios u. Louisiana
Construction Materials Co. Nolan Barrios was employed by Williams-
Me Williams Industries“ to serve as an oiler on a dragline which was
_ rented from A.O. Rappelet. The dragline was loaded on a spud barge
owned by Rappelet in order to perform construction work on a flood pro-
| tection levee, and Barrios was injured on the barge. The jury found
that both Williame-McWilliams and Rappelet were negligent and that the
barge, operated by Rappelet, was unseaworthy.*” Williams-McWilliams
argued that it could not be liable under the Jones Act, since the jury
found that it was not the operator of the barge. The Fifth Circuit rejected
the argument, because rather than control over the vessel, the key is
“control over the operations which resulted in the injury to Barrios.
The court concluded:
224. See, e. g., G. GU & C. Brack, Tue Law or Auma § 6-21) (2d ed. 1975).
225. See, e.g., Thomas v. Peterson Marine Serv., 411 F.2d 592, 593 (5th Cir. 1969) (“he
was not employed by the owner of the vessel”), cert. denied, 396 U.S. 1006 (1970); William-
son v. Daspit Bros. Marine Divers, Inc., 337 F.2d 337, 339 (5th Cir. 1964) (the jury was
instructed to decide “whether or not that vessel was under the control or command or oper-
ated by” the defendant); Case v. St. Paul Fire & Marine Ins. Co., 324 F. Supp. 352, 353
(E.D. La. 1971) (Actually, the Jones Act claim could and should have been dismissed also
on the ground that since Noble did not own or operate the vessel in question, there was no
employee employer shipowner or operator relationship required by the Jones Act. appeal
dismissed, 456 F.2d 252 (5th Cir. 1972).
226. Several district courts had previously held that when the employer and vessel own-
er are different, the party liable for maintenance and cure and for negligence under the
Jones Act is the seaman’s employer. Sims v. Marine Catering Serv., 217 F. Supp. 511, 516-17
(E.D. La. 1963); Williams v. Milwhite Sales Co., 197 F. Supp. 730, 732 (E.D. La. 1961); ef.
Smith v. Brown & Root Marine Operators, Inc., 243 F. Supp. 130, 132 (W.D. La. 1965), aff'd
sub nom. Underwater Servs. v. Brown & Root Marine Operators, Inc., 376 F.2d 852 (5th Cir.
1967).
227. 465 F.2d 1157 (5th Cir. 1972).
228. Barrios had been employed by Rappelet but was hired by Williams-McWilliams
because he was familiar with the equipment. The jury found Barrios was acting in the
course and scope of his employment for Williams-McWilliams at the time of his accident.
Id. at 1159, 1161 n.2.
229. Id. at 1160.
230. Id. at 1160-61 n.2.
231. Id. at 1164; cf. Trautman v. Buck Steber, Inc., 693 F.2d 440, 443-46 (5th Cir 1982).
460 SOUTH TEXAS LAW JOURNAL
The jury found that Barrios was employed by Williams-McWilliams and
assigned to duties which bore a sufficiently permanent connection to the
spud barge to qualify Barrios as a member of its crew. In addition the
jury found that Williams-McWilliams supervised the particular opera-
tions which gave rise to Barrios injury and that the negligence of Wil-
liams-McWilliams was a cause of the injury. Where the plaintiff has es-
tablished these traditional elements of a Jones Act recovery, it would be
a strained and artificial construction of the Act to impose any additional
requirement that the defendant have operational control over the entire
vessel.
In summary, the Fifth Circuit affirmed the trial court judgment im-
posing liability on the employer, Williams-McWilliams, for negligence
under the Jones Act and maintenance and cure under the general mari-
time law and against the vessel owner and operator, Rappelet, for negli-
_ gence and unseaworthiness.**
| Shortly after Barrios the Second Circuit was faced with the same is-
zue in Mahramas v. American Export Isbrandtsen Lines.*** Anna
Mahramas was employed by House of Albert which operated the barber
and beauty shops on American Export Isbrandtsen Lines’ passenger lin-
ers. Mahramas shared a cabin with another House of Albert employee,
and was allegedly injured while using the ladder to her upper berth when
its bottom step gave way. As to the vessel owner, the Second Circuit
had no doubt that Mahramas had the remedies of the warranty of sea-
worthiness and general maritime negligence.** The major question on
appeal involved the party responsible for maintenance and cure and
Jones Act negligence. After holding Mahramas a seaman,*” the court con-
cluded: “There has never been any question that the Jones Act applies
only between employees and their employers, and the Supreme Court
made explicit in Cosmopolitan Shipping Co. v. McAllister, that only one
person, be it an individual or a corporation, could be sued as the em-
232. Barrios, 465 F.2d at 1166.
233. Id. at 1167.
234. Id. at 1159, 1166-67. The Fifth Circuit also affirmed the award of indemnity to
Rappelet against Williams-McWilliams based on the finding that Rappelet's negligence was
passive and Williams-McWilliams negligence was active. /d. at 1166-67.
235. 475 F.2d 165 (2d Cir. 1973). In ita prior decision, Schiemann v. Grace Line, 269 F.2d
596 (2d Cir. 1959), the Second Circuit was faced with a similar employment relationship.
The only issue in Schiemann, however, was whether the worker could maintain an action
against the vessel owner. The court held that he could not because he was not employed by
the vessel owner. /d. at 597-98.
236. Mahramas, 475 F.2d at 167.
237. Id. at 169 (citing Seas Shipping Co. v. Sieracki, 328 U.S. 85, 95 (1946)).
238. “[T)he owner of the ship owes a duty of reasonable care ‘to all who are on board for
purposes not inimical to (the shipowner’s} legitimate interest. Mahramas, 475 F.2d at 169
(quoting Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632 (1959)).
239. Mahramas, 475 F.2d at 170.
SEAMAN STATUS RECONSIDERED 461
ployer.”**® Thus, since House of Albert was Mahramas’ employer,“ the
Jones Act did not extend to the shipowner American Export Isbrandtsen
Lines.*** House of Albert raised the argument that the Jones Act could
not apply to it because it was not a shipouner- employer. This posi-
tion had been advocated by some commentators,™ but like the Fifth Cir-
cuit in Barrios, the Second Circuit rejected the argument.“ As to main-
tenance and cure, House of Albert as employer was responsible since “the
right arises out of and is implied in the contract of employment.
With the exception of a few aberrations,’ the breakdown of obliga-
tions in Barrios and Mahramas has been consistently followed: Jones Act
negligence and maintenance and cure owed by the employer and the war-
ranty of seaworthiness owed by the vessel owner or operator.“ The major
areas of dispute generally involve who is the Jones Act employer“ and
240. Id. (citations and footnote omitted).
241. Jd. at 171.
242. Id. at 170.
243. Id. at 170-71 (emphasis supplied).
244. See, eg. G. Gnmore & C. Brack, THe Law or Abum ur § 6-21, at 285 (Ist ed.
1957).
245. Mahramas, 475 F.2d at 171. The Second Circuit noted that when the Supreme
Court had incorporated longshoremen’s actions against their employer, the stevedore, into
the Jones Act, the Supreme Court had not considered it necessary that the employer own
the vessel. See Sieracki, 328 U.S. at 99-100; Haverty, 272 U.S. at 52.
246. Mahramas, 475 F.2d at 170.
247. See, eg., Constance v. Johnston Drilling Co., 422 F.2d 369, 370 (5th Cir. 1970)
(“Johnston had breached its duty as a Jones Act employer to provide a seaworthy vessel.”);
Davis v. Associated Pipe Line Contractors, Inc., 305 F. Supp. 1345, 1352 (W.D. La. 1968)
(“This duty to provide a seaworthy vessel and a safe place to work . is an obligation of
the owner of the vessel to the employee of an independent contractor and is also an obliga-
tion of the seaman’s employer.”), aff'd, 418 F.2d 920 (5th Cir. 1969), cert. denied, 397 U.S.
988 (1970).
248. See, eg., Parks v. Dowell Div. of Dow Chem. Corp., 712 F.2d 154, 156, 157-58 (5th
Cir. 1983); Baker v. Raymond Int'l, Inc., 656 F.2d 173, 177-85 (5th Cir. 1981), cert. denied,
456 U.S. 983 (1982); Roberts v. Williams-McWilliams Co., 648 F.2d 255, 262-63 (5th Cir.
1981); Guidry v. South La. Contractors, Inc., 614 F.2d 447, 452 (5th Cir. 1980); Simko v. C &
C Marine Maintenance Co., 594 F.2d 960, 963 nn.2 & 3 (3d Cir.), cert. denied, 444 U.S. 833
(1979); Davis v. Hill Eng g. Inc., 549 F.2d 314, 326, 329 (5th Cir. 1977); Spinks v. Chevron
Oil Co., 507 F.2d 216, 224-26 (5th Cir. 1975); Dugas v. Pelican Constr. Co., 481 F.2d 773,
777-78 (5th Cir.), cert. denied, 414 U.S. 1093 (1973); Savard v. Marine Contracting Inc., 471
F.2d 536, 540-42 (2d Cir. 1972), cert. denied, 412 U.S. 943 (1973); Burns v. Anchor-Wate
Co., 469 F.2d 730, 731, 732-33 (5th Cir. 1972); Landry v. Oceanic Contractors, Inc., 548 F.
Supp. 337, 342, 344-45 (E.D. La. 1982); Lowe v. California Co., 296 F. Supp. 1264, 1267-68
(E.D. La. 1969); Smith v. Brown & Root Marine Operators, Inc., 243 F. Supp. at 132; Brown
4 Root, Inc. v. DeSautell, 554 S.W.2d 764, 766 (Tex. Civ. App.—Houston [Ist Dist} 1977,
writ ref'd n.r.e.). Of course no seaworthiness warranty is owed by charterers who do not own
or operate the vessel. See, e g., Kelloch v. S & H Subwater Salvage, Inc., 473 F.2d 767, 768-
69 (5th Cir. 1973); Presley v. CARRIBEAN SEAL, 537 F. Supp. 956, 965 (S.D. Tex. 1982),
rev'd on other grounds sub nom. Presley v. Vessel CARRIBEAN SEAL, 709 F.2d 406 (5th
Cir. 1983), cert. denied, 52 U.S.L.W. 3509 (U.S. Jan. 9, 1984).
249. The disputes often arise in the complicated context of the borrowed servant rule.
462 SOUTH TEXAS LAW JOURNAL
how many employers can be responsible under the Jones Act.
Following the straightforward language used by Justice Reed in
McAllister,** most courts have held that there can be only one Jones Act
employer and have rejected arguments seeking to impose Jones Act liabil-
ity against more than one party.“ In Spinks v. Chevron Oil Co., how-
ever, the Fifth Circuit added considerable confusion to the issue. Donnie
Spinks was employed by Labor Services and was injured aboard a Chev-
ron drilling barge when he slipped on soap he was using to clean oil from
the deck. Spinks filed suit against Chevron ...d Labor Services but in-
voked the Jones Act against only the latter.“ The trial court dismissed
the Jones Act claim because Spinks was the borrowed employee of Chev-
ron.“ The Fifth Circuit initially reasoned that when a seaman is a bor-
rowed servant of an employer, he does not cease to be his immediate em-
ployer’s servant.“ The court did not disagree with the district court’s
holding tha: Spinks was a borrowed servant of Chevron. “We merely
hold that under the Jones Act, Labor Services remained his employer.
After finding two employers, the Fifth Circuit had to deal with McAIl-
lister. The Fifth Circuit’s characterization of that opinion foretold its
holding: “Much of the difficulty in this area stems from the Supreme
Court’s dictum in Cosmopolitan Shipping Co. v. McAllister, that
under the Jones Act only one person, firm, or corporation may be sued as
employer. The Fifth Circuit responded: “If this means that an in-
jured seaman must speculate at his peril on whether the trial court ulti-
mately will find him a borrowed employee of the shipowner, or an em-
ployee of his immediate employer, we reject the theory. Noting that a
single employer rule might result in contractual manipulation that would
defeat Jones Act rights, the court saw “nothing offensive” in permitting a
seaman to sue both potential employers in the alternative and having the
defendants sort out between themselves which will bear the final cost of
See, e g., Baker v. Raymond Int I. Inc., 656 F.2d at 178-79; Roberts v. Williams-McWilliams
Co., 648 F. ad at 260-62; Guidry v. South La. Contractors, Inc., 614 F.2d at 452-55; Simko v.
C & C Marine Maintenance Co., 594 F.2d at 963 n.3; Spinks v. Chevron Oil Co., 507 F. ad at
224-26; Dugas v. Pelican Constr. Co., 481 F.2d at 778; Savard v. Marine Contracting Inc.,
471 F.2d at 541; Porche v. Gulf Miss. Marine Corp., 390 F. Supp. 624, 629 (E D. La. 1975);
Hebert v. California Oil Co., 280 F. Supp. 754, 760-61 (W.D. La. 1967); ¢/ Ruiz v. Shell Oil
Co., 413 F.2d 310, 312-14 (5th Cir. 1969).
250. See supra text accompanying note 222.
251. See, e.g., Mahramas, 475 F. ad at 170; Savard v. Marine Contracting loc. 471 F.2d
at 541.
252. 507 F.2d 216 (Sth Cir. 1975).
253. Id. at 219, 221.
254. Id. at 221. The trial court gave the additional reason that Labor Services was not
the owner or operator of the vessel. The Fifth Circuit also rejected this reason Id at 224.
255. Id. at 224.
256. Id. at 225 (footnote omitted).
257. Id. (citation and footnote omitted) (quoting McAllister, 337 U.S at 791)
258. Spinks, 507 F.2d at 225.
SEAMAN STATUS RECONSIDERED 463
recovery.“ Thus, Spinks was permitted to pursue his Jones Act claim
against Labor Services despite being a borrowed employee of Chevron.“
With the exception of the dual employer analysis in Spinks“ the
remedies against employers and vessel owners have been set out by the
lower courts with a degree of uniformity. Such is not the case in deter-
mining who has the status of a member of a crew of a vessel.
VI. WHO IS A MEMBER OF A CREW
The term “seaman” has been defined by Congress in terms of “every
person. . . who shall be employed or engaged to serve in any capacity on
board.. Because the LHWCA restricts the seamen covered under
the Jones Act to “a master or member of a crew of any vessel, the
issue which must be answered is who are the crewmembers?™ “[O)thers
who may work on the vessel” are not entitled to the protection of the
Jones Act.“ Since only seamen who are crewmembers can recover under
the Jones Act, most courts use the terms interchangeably.“ With the
passage of time, however, the equating of “seaman” with “crewmember”
has often meant that the term “crewmember” has been expanded to in-
corporate the definition of seaman.“ Some decisions have so confused
the terms as to dispose of the crewmember restriction altogether and
have reverted to the expansive definitions of seaman.“ This extension of
259. Id.
260. Id. at 225-26.
261. See also Baker v. Raymond Int I. Inc., 656 F.2d at 178; Guidry v. South La Con-
tractors, Inc., 614 F.2d at 452.
262. 46 US.C. § 713 (1976).
263. 33 U.S.C. §§ 902(3), 903(a)(1). See Swanson v. Marra Bros., 328 U.S. 1, 5 (1946);
Guidry v. South Le. Contractors, Inc., 614 F.2d 447, 452 n.2 (5th Cir. 1980); Whittington v.
Sewer Constr. Co., 541 F.2d 427, 436 (4th Cir. 1976); Brown v. ITT Rayonier, Inc., 497 F.2d
234, 236 (5th Cir. 1974); Burns v. Anchor-Wate Co., 469 F.2d 730, 732 (5th Cir. 1972); Bar-
rios v. Louisiana Constr. Materials Co., 465 F.2d 1157, 1161 n.3 (5th Cir. 1972); Mach v.
Pennsylvania R.R., 317 F. 2d 761, 763 (3d Cir. 1963); Stanley v. Guy Scroggins Constr. Co.,
297 F.2d 374, 377 (5th Cir. 1961); Zientek v. Reading Co., 220 F.2d 183, 186 n.8 (3d Cir.),
cert. denied, 350 U.S. 846 (1955); McKie v. Diamond Marine Co., 204 F.2d 132, 135-36 (5th
Cir. 1953); Kibadeaux v. Standard Dredging Co., 81 F.2d 670, 672-73 (5th Cir.), cert. denied,
299 U.S. 549 (1936).
264. Norton v. Warner Co., 321 U.S. 565, 566 (1944).
265. Braen v. Pfeifer Oil Transp. Co., 361 U.S. 129, 131 (1959).
266. See, eg., McDermott, Inc. v. Boudreaux, 679 F.2d 452, 455 (5th Cir. 1982); Abshire
v. Seacoast Prods., Inc., 668 F.2d 832, 834 n.1 (5th Cir. 1982); Longmire v. Sea Drilling
Corp., 610 F.2d 1342, 1345 (5th Cir. 1980); Travelers Ins. Co. v. Belaire, 412 F.2d 297, 302
(Ist Cir. 1969); Noble Drilling Corp. v. Smith, 412 F.2d 952, 955 (5th Cir.), cert. denied, 396
U.S. 906 (1969); Boatel, Inc. v. Delamore, 379 F.2d 850, 859 (5th Cir. 1967); Bodden v. Coor-
dinated Caribbean Transp., Inc., 369 F.2d 273, 274 (5th Cir. 1966).
267. Davis v. Hill Eng g. Inc., 549 F.2d 314, 326 (5th Cir. 1977); Holland v Allied Struc-
tural Steel Co., 539 F.2d 476, 479 (5th Cir. 1976), cert. denied, 429 US. 1105 (1977); ef.
Noble Drilling Corp. v. Smith, 412 F.2d at 955.
268. See, eg., Mahramas v. American Export Isbrandtsen Lines, 475 F.2d 165, 170 (2d
——
464 SOUTH TEXAS LAW JOURNAL
the class of workers covered under the Jones Act has characterized the
development of criteria by which seaman status is judged.
The initial battleground used to establish the tests for seaman status
involved the land-based laborers who work on or around vessels in the
harbor. Congress intended these workers to be treated like their counter-
parts who do not have the advantage of maritime remedies.“ The differ-
ence between these workers and “seamen” was explained in C. Flanagan
& Sons, Inc. v. Carken:*”°
A stevedore or longshoreman has no contract with the ship. He has not
bound himself to its service. He does not serve as a member of its crew,
but performs for an independent contractor a duty that formerly was
ordinarily done by the crew, not upon the high sea, but at the ship's
destination, minus the perils of the voyage. He does not undergo the
hardships and dangers, nor does he surrender the personal rights and
liberties that a seaman does in binding himself to the vessel as a member
of its crew in exchange for the right of maintenance, care, and wages
flowing to the seaman by virtue of his contract to serve the ship.“
Some of the early cases attempted to define the class of workers re-
maining under the Jones Act after the LHWCA with such expressions as
“seafaring men and “the whole company belonging to a vessel or a
boat. Other courts looked to circumstances surrounding the worker's
employment, such as living ashore“ and being paid by the hour.“ The
tests which are in use today originated in the Nineteenth Century cases
which adopted several standards but achieved no uniformity.““ In Seneca
Washed Gravel Corp. v. McManigal,*?” a watchman fell overboard from
the steamer VIKING and drowned. After noting Justice Story's definition
of “crew” as the “ship’s company,“ the Second Circuit adopted an “aid
in navigation” test: The crew is usually referred to and is naturally and
primarily thought of as those who are on board and aiding in the naviga-
tion without reference to the nature of the arrangement under which they
Cir. 1973); Hardaway Contracting Co. v. O'Keeffe, 414 F.2d 657, 659-60 (5th Cir. 1968); ef.
Brown & Root, Inc. v. DeSautell, 554 S.W.2d 764, 766 (Tex. Civ. App Houston [Ist Dist.]
1977, writ ref'd n.r.e.).
269. See supra notes 88-94, 104-14 and accompanying text.
270. 11 S.W.2d 392 (Tex. Civ. App.—Beaumont 1>~«, no writ).
271. Id. at 394
272. Moore Dry Dock Co. v. Pillsbury, 100 F.2d 245, 246 (9th Cir. 1938)
273. Hunt v. United States, 17 F. Supp. 578, 583 (S.D.N.Y. 1936), aff'd. 91 F 2d 1014 (2d
Cir.), cert. denied, 302 U.S. 792 (1937).
274. See, eg., DeWald v. Baltimore & O. R.R., 71 F.2d 810, 811 (4th Cir). cert denied,
293 U.S. 581 (1934). Occupying quarters on the ship did not give seaman status to a night
watchman in Union Oil Co. v. Pillsbury, 63 F.2d 925, 926 (9th Cir. 1933)
275. Lawson v. Maryland Casualty Co., 94 F.2d 193, 19. (Sth Cir. 1938)
276. See supra text accompanying notes 5-38.
277. 65 F.2d 779 (2d Cir. 1933).
278. Id. at 780 (quoting United States v. Winn, 28 F. Cas. 733, 737 (D Mam 1838)(No.
16,740)).
SEAMAN STATUS RECONSIDERED 465
are on board. While the watchman “attended the fires, . . . he did
nothing that assisted in any way the navigation of the ship.“ Thus, he
was not a member of the crew.“
While several courts followed the aid in navigation test from Sen-
eca, * other tests were being incorporated into the definition of seaman/
crewmember. In attempting to apply the aid in navigation standard, the
Seventh Circuit in A. L. Mechling Barge Line v. Bassett“ had no doubt
that a cook on a towboat was “necessary to the carrying on of the naviga-
tion in which the boat is engaged. In distinguishing between long-
shoremen and members of the crew, however, the court noted the “funda-
mental distinction, generally recognized, has been whether the employee
was permanently attached to a ship engaged in navigation. In Gonza-
les u. United States Shipping Board, Emergency Fleet Corp.,“ the
Eastern District of New York dealt with a worker injured on one “vessel”
in a “laid-up fleet” of dead ships.“ Req ing that the ship be “in navi-
gation,”*** the court denied seaman status to the worker“ because the
ship was like “an island composed of wood and rusted iron on which
these men work, so far as any real navigation goes.
In 1941, the First Circuit in Carumbo v. Cape Cod S.S. Co. was the
first court to consider all of the criteria being used in Jones Act cases.
The court pointed out that the worker must be both a seaman and a
member of a crew in order to maintain an action under the Jones Act.“
The court noted that the word ‘seaman’. . does not mean the same
279. Seneca, 65 F.2d at 780 (citing The BOUND BROOK, 146 F. 160, 164 (D. Mass.
1906); The BUENA VENTURA, 243 F. 797, 799 (S.D.N.Y. 1916)).
280. Seneca, 65 F.2d at 780.
281. Id.
282. See, eg., Taylor v. McManig |, 89 F.2d 583, 585 (6th Cir. 1937); DeWald v. Balti-
more & O. RR. 71 F.2d at 811, 813; Harper v. Parker, 9 F. Supp. 744, 745 (D. Md. 1935).
283. 119 F.2d 995 (7th Cir. 1941).
284. Id. at 998.
285. Id.; see also Maryland Casualty Co. v. Lawson, 94 F.2d 190, 192 (5th Cir. 1938) in
which the Fifth Circuit stated: “There is implied a definite and permanent connection with
the vessel. Although not an articled seaman, the worker was considered a member of
the crew because “he was permanently attached to the dredge and her attendant scow as a
member of the ship's company.” Id. at 193.
286. 3 F.2d 168 (E.D.N.Y. 1924).
287. Id. at 169.
288. Id. at 170. See also Frankel v. Bethlehem-Fairfield Shipyard, Inc., 132 F.2d 634,
635-36 (4th Cir. 1942), cert. denied, 319 U.S. 746 (1943); Hawn v. American S.S. Co., 107
F.2d 999, 1000-01 (2d Cir. 1939); Hayford v. Doussony, 32 F.2d 605 (5th Cir. 1929); City of
Los Angeles v. United Dredging Co., 14 F.2d 364, 365-66 (9th Cir. 1926).
289. Gonzales, 3 F.2d at 172.
290. Id. at 169. The court cited, inter alia, Saylor v. Taylor, 77 F. 476 (4th Cir. 1896);
The SIRIUS, 65 F. 226, 229 (N.D. Cal. 1895); The JOSHUA LEVINESS, 13 F. Cas. 1155
(E.D.N.Y. 1878)(No. 7,549). See supra note 5.
291. 123 F. ad 991 (ist Cir. 1941).
292. Id. at 994.
466 SOUTH TEXAS LAW JOURNAL
thing as ‘member of a crew. The class of seaman is broad enough to
encompass members of a crew and land-based workers such as longshore-
men, but its members need not be on board “primarily to aid in naviga-
tion” in order to qualify.” [Wie feel constrained to hold that one who
does any sort of work aboard a ship in navigation is a ‘seaman’ within the
meaning of the Jones Act. As to the restriction in the LHWCA that
the worker be a member of a crew of a vessel, the court adopted the three
tests which had been used separately by the courts: “The requirements
that the ship be in navigation; that there be a more or less permanent
connection with the ship; and that the worker be aboard primarily to aid
in navigation appear to us to be the essential and decisive elements of the
definition of a ‘member of a crew.
After Carumbo the circuit courts followed suit and adopted*”’ the
three elements*™ collected in that decision. The unanimity on the ele-
ments, however, did not mean that there was consistent application. The
Supreme Cour. set the tone for the disarray in the lower courts in Norton
v. Warner Co.** The Court confused the terms “seaman” and “crew” and
reverted to the standards for determining seaman status which existed
prior to the passage of the LHWCA.*” Although the Court purported to
follow its requirement that the crew “embraced those ‘who are naturally
and primarily on board’ the vessel ‘to aid in her navigation, the class
was expanded to include those who “contribute to and labor about the
operation and welfare of the ship when she is upon a voyage.
Some circuit courts preceded the Supreme Court in expanding the
aid in navigation requirement,“ but the decision in Norton led the way
293. Id.
294. Id. The court did require a ship in navigation in order for the worker to qualify as a
seaman. /d.
295. Id. at 995.
296. Id.
297. See, e.g., Harney v. William M. Moore Bidg. Corp., 359 F.2d 649, 654 (2d Cir. 1966);
Zientek v. Reading Co., 220 F.2d at 185; McKie v. Diamond Marine Co., 204 F.2d at 136;
Wilkes v. Mississippi River Sand & Gravel Co., 202 F.2d 383, 388 (6th Cir.), cert. denied,
346 U.S. 817 (1953); Puget Sound Freight Lines v. Marshall, 125 F.2d 876, 879 (9th Cir.
1942). The district courts fell in line also. See, e g., Rackus v. Moore-McCormack Lines, 85
F. Supp. 185, 187 (E.D. Pa. 1949).
298. Some courts considered the elements on a sliding scale such that la] less perma-
nent connection with the ship might require a more significant navigational function.” Har-
ney v. William M. Moore Bidg. Corp., 359 F.2d at 654.
299. 321 U.S. 565 (1944).
300. See supra text accompanying notes 132-38.
301. Norton, 321 U.S. at 572 (quoting South Chicago Coal & Dock Co. v. Bassett, 309
U.S. 251, 260 (1940)).
302. Norton, 321 U.S. at 572 (quoting The BUENA VENTURA, 243 F. at 799).
303. See, eg. Schantz v. American Dredging Co., 138 F.2d 534, 537 (3d Cir. 1943); ALL.
Mechling Barge Line v. Bassett, 119 F.2d at 998; Osland v. Star Fish & Oyster Co., 107 F.2d
113, 114 (5th Cir. 1939).
—— 8p. Si Nt Wii
SEAMAN STATUS RECONSIDERED 467
for the emasculation of the test.“ As the Supreme Court continued to
expand the coverage of the Jones Act, the three-part test from
Carumbo was stretched to the breaking point. Rather than continuing to
liberalize the Carumbo test, some courts abandoned it altogether. Thus in
Perez u. Marine Transport Lines,“ Judge Skelly Wright of the Eastern
District of Louisiana concluded that the “real test” was not whether the
worker assisted in the navigation of the vessel but “whether the claimant
is more or less permanently employed aboard the vessel in a capacity
which contributes to the accomplishment of her mission.“ Judge
Wright also rejected the requirement that “the vessel in question must be
in navigation“ and held that there could be Jones Act coverage las
long as a vessel is buoyant and capable of being floated from one location
to another to accomplish her mission
The major departure from Carumbo came in answer to the riddle:
“When is a roughneck a seaman?“ “ In Offshore Co. v. Robison“ a
roughneck was assisting in running casing on a drilling rig. The rig was
mounted on a platform or barge and had eight legs resting firmly on the
bottom of the Gulf of Mexico approximately three miles from the Texas
coast. The barge had no engines and was towed between drilling locations
in the Gulf. Robison’s contribution to the casing operation was to crease
the threaded ends of the casing and to hook an air hoist line to the cas-
ing. An unsecured section of casing rolled toward Robison, and he suf-
fered a fractured leg attempting to escape.
Robison brought suit against his employer alleging he was a seaman
and member of the crew of the drilling barge OFFSHORE NO. 55 which
was owned by his employer. A jury found the OFFSHORE NO. 55 was a
vessel and Robison was a member of its crew.“ The Fifth Circuit, which
had previously adopted the Carumbo test,“ reviewed the decisions of the
Supreme Court which expanded seaman status and stated that the aid in
navigation test had been “watered down until the words have lost their
natural meaning. Noting that “cases piled on cases” had permitted
recovery “when by no stretch of the imagination can it be said that the
304. See, eg., Wilkes v. Mississippi River Sand & Gravel Co., 202 F.2d at 388; Jeffrey v.
Henderson Bros., Inc., 193 F.2d 589, 592-93 (4th Cir. 1951); Daffin v. Pape, 170 F.2d 622,
625 (5th Cir. 1948).
305. See supra text accompanying notes 145-89.
306. 160 F. Supp. 853 (K D. La. 1958).
307. Id. at 855.
308. Id.
309. Id. at 856.
310. Offshore Co. v. Robison, 266 F.2d 769, 771 (5th Cir. 1959).
311. Id.
312. Jd. at 771-72.
313. Jd. at 773 n.4.
314. McKie v. Diamond Marine Co., 204 F.2d at 136.
$15. Robison, 269 F.2d at 780.
468 SOUTH TEXAS LAW JOURNAL
claimant had anything to do with navigation,“ the court concluded that
’ a worker is a member of the ship’s company “only in the sense that his
duties have a connection with the mission or the function of the floatable
structure where he was injured.”*’’ Ignoring the repeated interventions of
Congress seeking to restrict the class of maritime workers covered under
the Jones Act, the court stated that the law could develop naturally be-
cause of the “absence of any legislative restriction.“ Thus, the Fifth
Circuit promulgated its position on seaman status:
[T)here is an evidentiary basis for a Jones Act case to go to the jury: (1)
if there is evidence that the injured workman was assigned permanently
to a vessel (including special purpose structures not usually employed as
a means of transport by water but designed to float on water) or per-
formed a substantial part of his work on the vessel; and (2) if the capac-
ity in which he was employed or the duties which he performed contrib-
uted to the function of the vessel or to the accomplishment of its
mission, or to the operation or welfare of the vessel in terms of its main-
tenance during its movement or during anchorage for its future trips.
Without guidance from the Su; eme Court, most“ of the circuit
courts have continued to apply the three-part Carumbo test in determin-
ing seaman status.“ Although the Fifth Circuit has generally followed its
Robison test, that court has occasionally reverted to the Carumbo
316. Id.
317. Id.
318. Id.
319. Id. at 779 (footnote omitted).
320. For decisions following the Carumbo test, see, e. g., Estate of Wenzel v. Seaward
Marine Servs., Inc., 709 F.2d 1326, 1327 (9th Cir. 1983); Luckett v. Continental Eng f Co.
649 F.2d 441, 443 (6th Cir. 1981); Whittington v. Sewer Constr. Co., 541 F.2d at 436; Griffith
v. Wheeling Pittsburgh Steel Corp., 521 F.2d 31, 36 (3d Cir. 1975), cert. denied, 423 US.
1054 (1976); Salgado v. M.J. Rudolph Corp., 514 F.2d 750, 755 (2d Cir. 1975); Klarman v.
Santini, 603 F.2d 29, 33 (2d Cir. 1974), cert. denied, 419 U.S. 1110 (1975); Bullis v. Twenti-
eth Century-Fox Film Corp., 474 F.2d 392, 393 (9th Cir. 1973); Harney v. William M. Moore
Bldg. Corp., 359 F.2d at 654; Nelson v. Greene Line Steamers, 255 F.2d 31, 33-34 (6th Cir.),
cert. denied, 358 U.S. 867 (1958); Lynn v. Hey! & Patterson, Inc., 483 F. Supp. 1247, 1250
(W.D. Pa.), aff'd, 636 F.2d 1209 (3d Cir. 1980); Garcia v. Universal Seafoods, Ltd., 459 F.
Supp. 463, 464 (W.D. Wash. 1978); Chapman v. M/G Transp. Servs., Inc., 432 F. Supp. 723,
725 (W.D. Pa. 1977); Specht v. Pittsburgh Coal Co., 432 F. Supp. 717, 719 (W.D. Pa. 1975).
321. For decisions outside the Fifth Circuit which have followed the Robison test, see,
e. g., Bennett v. Perini Corp., 510 F.2d 114, 115 (ist Cir. 1975); Slatton v. Martin K. Eby
Constr. Co., 506 F.2d 505, 510 (8th Cir. 1974), cert. denied, 421 U.S. 931 (1975); Stafford v.
Perini Corp., 475 F.2d 507, 510 (ist Cir. 1973).
$22. See, eg., Parks v. Dowell Div. of Dow Chem. Corp., 712 F.2d 154, 158 (5th Cir.
1983); Fox v. Taylor Diving & Salvage Co., 694 F.2d 1349, 1352 (5th Cir. 1983); Dove v.
Belcher Oil Co., 686 F.2d 329, 333 n.6 (5th Cir. 1982); Burks v. American River Transp. Co.,
679 F.2d 69, 75-76 (5th Cir. 1982); Abshire v. Seacoast Prods., Inc., 668 F.2d at 835; Roberts
v. Williams-McWilliams Co., 648 F.2d 255, 260-61 n.9 (5th Cir. 1981); Crador v. Louisiana
Dept. of Highways, 625 F.2d 1227, 1229 (6th Cir. 1980), cert. denied, 452 US. 915 (1981);
Billings v. Chevron, U.S.A., Inc., 618 F.2d 1108, 1109 (5th Cir. 1980); Stokes v. B.T. Oilfield
Servs., 617 F.2d 1205, 1206 (5th Cir. 1980); Longmire v. Sea Drilling Corp., 610 F.2d at 1345;
—— — a
SEAMAN STATUS RECONSIDERED 469
test. Attempting to explain its use of both tests, the Fifth Circuit ini-
tially stated that Robison was “an elaboration and refinement“ of the
three-part test announced by that court in McKie v. Diamond Marine
Co.*** When the Fifth Circuit continued to use the three-part test, how-
ever, one panel stated that the Robison test had been refined“ by a
subsequent decision which followed McKie.*" More recently, in McDer-
mott, Inc. u. Boudreaux** and Bertrand v. International Mooring &
Marine, Inc., * the Fifth Circuit attempted to explain the relationship
between the tests“ being used for seaman status, but the explanations
only exacerbated the confusion.“
Beard v. Shell Oil Co., 606 F.2d 515, 517 (5th Cir. 1979); Bazile v. Bisso Marine Corp., 606
F.2d 101, 104 (5th Cir. 1979), cert. denied, 449 U.S. 829 (1989); Kirk v. Land & Marine
Applicators, Inc., 555 F.2d 481, 482 (5th Cir. 1977); Davis v. Hill Eng g. Inc., 549 F.2d at 326;
Higginbotham v. Mobil Oil Corp., 545 F.2d 422, 432 (5th Cir. 1977), rev'd on other grounds,
436 U.S. 618 (1978); Holland v. Allied Structural Steel Co., 539 F.2d at 484; Owens v. Dia-
mond M Drilling Co., 487 F.2d 74, 76 (5th Cir. 1973); Dugas v. Pelican Constr. Co., 481 F.2d
773, 777 n.5 (Sth Cir.), cert. denied, 414 U.S. 1093 (1973); Ross v. Mobil Oil Corp., 474 F. 2d
989, 990-91 (5th Cir.), cert. denied, 414 U.S. 1012 (1973); Burns v. Anchor-Wate Co., 469
F.2d at 732 n.2; Keener v. Transworld Drilling Co., 468 F.2d 729, 730 (5th Cir. 1972); Nolan
v. Coating Specialists, Inc., 422 F.2d 377, 379 (5th Cir. 1970); Kimble v. Noble Drilling
Corp., 416 F.2d 847, 849 (5th Cir. 1969), cert. denied, 397 U.S. 918 (1970); Noble Drilling
Corp. v. Smith, 412 F.2d at 956; Boatel, Inc. v. Delamore, 379 F.2d at 858; Magnolia Towing
Co. v. Pace, 378 F.2d 12, 13 (5th Cir. 1967); Producers Drilling Co. v. Gray, 361 F.2d 432,
434 (5th Cir. 1966); Rotolo v. Halliburton Co., 317 F.2d 9, 12 (5th Cir.), cert. denied, 375
U.S. 852 (1963); Stanley v. Guy Scroggins Constr. Co., 297 F.2d at 377; Braniff v. Jackson
Ave.-Gretna Ferry, Inc., 280 F.2d 523, 526 (5th Cir. 1960).
323. See, eg, Wixom v. Boland Marine & Mfg. Co., 614 F.2d 956, 957 (5th Cir. 1980);
Garcia v. Queen, Ltd., 487 F.2d 625, 628 n.6 (5th Cir. 1973); Cox v. Otis Eng g Corp., 474
F.2d 613 (Sch Cir. 1973); Williams v. Avondale Shipyards, Inc., 452 F.2d 955, 958 (5th Cir.
1971); Bodden v. Coordinated Caribbean Transp., Inc., 369 F.2d at 274.
324. Brown v. ITT Rayonier, Inc., 497 F.2d at 237 n.2.
325. 204 F.2d at 136.
326. Guidry v. Continental Oil Co., 640 F.2d 523, 528 (5th Cir.), cert. denied, 454 U.S.
818 (1981).
327. The subsequent decision is Bodden v. Coordinated Caribbean Transp., Inc., 369
F.2d at 274.
328. 679 F.2d 452 (5th Cir. 1982).
329. 700 F.2d 240 (5th Cir. 1983), cert. denied, 52 U.S.L.W. 3533 (U.S. Jan. 16, 1984).
330. The Fifth Circuit occasionally uses a third test which is simply a restatement of
Robison in three parts:
(1) [Hje must have a more or less permanent connection with (2) a vessel in navi-
gation and (3) the capacity in which he is employed or the duties which he per-
forms must contribute to the function of the vessel, the accomplishment of its
mission or its operation or welfare in terms of its maintenance during u move-
ment or during anchorage for its future trips.
See, eg, Barrios v. Engine & Gas Compressor Servs., 669 F.2d 350, 352 (Sth Cir. 1982);
Watkins v. Pentzien, Inc., 660 F.2d 604, 606 (5th Cir. 1981), cert. denied. 456 U.S. 944
(1982); Guidry v. South La. Contractors, Inc., 614 F.2d at 452; see also Barros Louisiana
Constr. Materials Co., 465 F.2d at 1161.
331. The Fifth Circuit cited both Robison and McKie in Ardoin v. J Ray McDermott &
Co., 641 F.2d 277, 280-81 (5th Cir. 1981) and called it the “McKie/Robison analysis.” Id. at
470 SOUTH TEXAS LAW JOURNAL
In McDermott, the Fifth Circuit noted that most maritime courts use
the three-part test in some form.“ Although admitting that the Fifth
Circuit never abandoned McKie, the court considered Robison as an es-
sential commentary upon that standard in this Circuit.“ The court
stated that Robison was introduced as a “threshold test” for determining
if the worker presented sufficient evidence to avoid summary judgment
on seaman status.“ The Fifth Circuit’s subsequent decisions, however,
expanded Robison so that it was used also “in delimiting the power of the
factfinder to deny or confer such status. “Effectively, ‘Offshore Co. v.
Robison . . . established in the Fifth Circuit the test for seaman status
under the Jones Act.“.
Less than a year after McDermott, the Fifth Circuit in Bertrand
stated that “the McKie test ‘still articulates the basic compass of the
term ‘seaman’ as used in the Jones Act.“ As in McDermott, however,
the court indicated that the Robison test should be used in weighing the
evidence for summary judgment and the role of the factfinder in deter-
mining seaman status.“ But the court pointed out that we never aban-
doned the McKie test, but continue to quote it or a modified version,
which encompasses the second part of the Robison test, primarily to ad-
dress cases in which the issue is whether the vessel is in navigation.“ “
Because the issue involved in Bertrand was the worker’s permanent con-
nection to the vessel,“ the court analyzed the case under the Robison
test.“
The inconsistent statements from the Fifth Circuit leave the test for
seaman status cloudy in that circuit. Is a Jones Act case submitted to the
jury under the “basic compass” of McKie*** or under Robison’s test de-
limiting the power of the factfinder to deny or corier such status? * If
the Fifth Circuit has abandoned the McKie test in tavor of the Robison
281. The Sixth Circuit has stated that the tests are “virtually the same.” Searcy v. E.T.
Slider, Inc., 679 F.2d 614, 616 (6th Cir. 1982).
332. McDermott, 679 F.2d at 455. It is interesting to note that the Fifth Circuit in Mc-
Dermott considered the three-part test to have been fashioned in Wilkes v. Mississippi
River Sand & Gravel Co., 202 F.2d at 388, despite its formulation twelve years earlier in
Carumbo. See supra text accompanying notes 291-96.
333. McDermott, 679 F.2d at 457
334. Id.
335. Id.
336. Id. (quoting Abshire v. Seacoast Prods., Inc., 668 F.2d at 835). The court also con-
sidered Robison to state the test for crewmember status under the restriction contained in
the LHWCA. McDermott, 679 F.2d at 457.
337. Bertrand, 700 F.2d at 244 (quoting Ardoin, 641 F.2d at 280).
338. Bertrand, 700 F.2d at 244 (citing McDermott, 679 F.2d at 457).
339. Bertrand, 700 F.2d at 244 n.9.
340. Id. at 243.
341. Id. at 244.
342. Id. (quoting Ardoin, 641 F.2d at 280).
343. Bertrand, 700 F.2d at 244 (quoting McDermott, 679 F.2d at 457).
SEAMAN STATUS RECONSIDERED 471
standards, does McKie still have some validity regarding the question of
whether there is a vessel in navigation? Clarification from the Fifth Cir-
cuit is necessary, but not in the same fashion as McDermott and
Bertrand.“
VII. FURTHER MODIFICATIONS
The elements of the Carumbo three-part test are (1) a vessel in navi-
gation; (2) a more or less permanent connection with the vessel; and (3)
that the worker be aboard primarily to aid in navigation. The Robison
test modifies each of the three parts in some fashion. The vessel in navi-
gation was enlarged with “special purpose structures not usually em-
ployed as a means of trensport by water but designed to float on
water.. The permapeut connection, which is the heart of a worker's
status as a crewmemver, was emasculated by permitting the claimant to
perform “a substantial part of his work on the vessel. Finally, the aid
in navigation element was scrapped in favor of requiring the worker's du-
ties contribute to “the function of the vessel or to the accomplishment of
its mission, or to the operation or welfare of the vessel in terms of its
maintenance. These changes were made in order that all those
subject to “the same marine risks would have seamen’s remedies, in-
cluding those workers on “strange-looking specialized watercraft designed
for oil operations offshore and in the shallow coastal waters of the Gulf of
Mexico.“ “ In light of the complex structures and relationships off-
shore,“ the Robison test has undergone substantial refinement.’
344. A recent decision from the Fifth Circuit, Bouvier v. Krenz, 702 F.2d 89 (5th Cir.
1983), has not clarified the situation: “There are three different formulations in this circuit
of the test for seaman status, but they are all essentially equivalent.” Id. at 90.
345. Robison, 266 F.2d at 779.
346. Id.
347. Id.
348. Id. at 780.
349. Id.
350. See American Petroleum Inst. v. E.P.A., 661 F.2d 340, 343 (5th Cir. 1981):
Just as one finds a variety of architectural styles in the average suburb, so one
finds different types of oil rigs in the offshore neighborhood. Mobile rigs drill from
floating barges or hulls. Especially in coastal areas, oil companies drill wells from
barges, with production facilities established adjacent to the well on platforms or
artificial islands. Yet others are floated into place and then raised on telescoping
legs. Stationary rigs, by contrast, sit astride steel platforms resting on the seabed
which do justice to Rube Goldberg.
351. Despite the Supreme Court's admonitions in connection with the necessity of sub-
mitting Jones Act cases to the fact finder, the Fifth Circuit has declared that some workers
on special purpose vessels are so clearly seamen that the trial court should grant an in-
structed verdict that the claimant is a seaman under the Robison test. See, e. g., Coulter v.
Texaco, Inc., 714 F.2d 467, 468 (5th Cir. 1983); Jenkins v. Aquatic Contractors & Eng rs, 446
F.2d 520, 521 (5th Cir. 1971); Magnolia Towing Co. v. Pace, 378 F.2d 12, 13 (5th Cir. 1967);
Marine Drilling Co. v. Autin, 363 F.2d 579, 582 (5th Cir. 1966); Producers Drilling Co. v.
Gray, 361 F.2d 432, 437 (5th Cir. 1966).
| 472 SOUTH TEXAS LAW JOURNAL
a. Special Purpose Structures/Vessels
On the issue of what vessels can provide the setting for Jones Act
status, Robison simply provides that “a vessel may mean something more
than a means of transport on water. Thus an undefined class of spe-
cial purpose structures . . designed to float on water” was added to the
test.“ But Robison arrived long after Congress and the Supreme Court
had provided standards defining the term vessel. The definition of vessel
promulgated by Congress includes “every description of watercraft or
other artificial contrivance used, or capable of being used, as a means of
transportation on water.** The Supreme Court succinctly summarized
the criteria used in determining whether there is a vessel in navigation in
The ROBERT W. PARSONS: “In fact, neither size, form, equipment nor
means of propulsion are determinative factors upon the question of juris-
diction, which regards only the purpose for which the craft was con-
structed, and the business in which it is engaged. The Court has also
pointed out that because it floats on the water does not make it a ship or
a vessel.“
While the search for oil and gas offshore has generated litigation on
the subject of special purpose structures,“ the harbors and inland waters
252. Robison, 266 F.2d at 776. Once a worker attains seaman status to a vessel, it is not
necessary that the accident occur on the vessel or that his tasks relate to the service of that
vessel. Braen v. Pfeifer Oil Transp. Co., 361 U.S. 129, 132-33 (1959); O'Donnell v. Great
Lakes Dredge & Dock Co., 318 U.S. 36, 42-43 (1943). Thus, an injured deckhand who was
only able to perform light duty work was held a Jones Act seaman while cleaning duck
blinds on land leased to his employer. Savoie v. Otto Candies, Inc., 692 F.2d 363, 365-66 (5th
Cir. 187 2).
35 Robison, 266 F.2d at 779.
1 U.S.C. § 3 (1976); see also 46 U.S.C. § 713 (1976): “[T]he term vessel shall be
understood to comprehend every description of vessel navigating on any sea or channel, lake
or river
355. 191 U.S. 17, 30 (1903).
356. Cope v. Vallette Dry Dock Co., 119 U.S. 625, 627 (1887); see also Blanchard v.
Engine & Gas Compressor Servs., 575 F.2d 1140, 1143 (5th Cir. 1978); Powers v. Bethlehem
Steel Corp., 477 F.2d 643, 647 n.4 (Ist Cir.), cert. denied, 414 U.S. 856 (1973); Cook v.
Belden Concrete Prods., Inc., 472 F.2d 999, 1001 (5th Cir.), cert. denied, 414 U.S. 868
(1973); Atkins v. Greenville Shipbuilding Corp., 411 F.2d 279, 283 (5th Cir.), cert. denied,
396 U.S. 846 (1969).
357. For examples of special purpose structures or craft considered vessels, see Lambert
v. Diamond M Drilling Co., 683 F.2d 935, 936 (5th Cir. 1982)(semi-submersible drilling
barge); McDermott, Inc. v. Boudreaux, 679 F.2d 452, 455-56 (5th Cir. 1982)(pipelaying
barge); Ardoin v. J. Ray McDermott & Co., 641 F.2d 277, 281 (5th Cir. 1981)(derrick barge);
Spinks v. Chevron Oil Co., 507 F.2d 216, 220 (5th Cir. 1975)(jack-up drilling barge); Kimble
v. Noble Drilling Corp., 416 F.2d 847, 850 (5th Cir. 1969)(tender), cert. denied, 397 U.S. 918
(1970); Producers Drilling Co. v. Gray, 361 F.2d 432, 436-37 (5th Cir. 1966)(submersible
drilling barge). For examples of structures or craft not considered vessels, see Barrios v.
Engine & Gas Compressor Servs., Inc., 669 F.2d 350, 353 (Sth Cir. 1982)(compressor sta-
tion); Smith v. Falcon Seaboard, Inc., 463 F.2d 206, 207-08 (5th Cir.)(fixed platform), cert.
denied, 409 U.S. 1085 (1972); Percle v. Western Geophysical Co., 528 F. Supp. 227, 229-30
(E.D. La. 1981)(marsh buggy).
SEAMAN STATUS RECONSIDERED 473
have provided the setting for much of the development of the standards
for determining what is a vessel in navigation.“ The Supreme Court had
the opportunity to apply its criteria for vessel status in Evansville &
Bowling Green Packet Co. u. Chero Cola Bottling Co.“ A wharf boat was
secured to the shore by four or five cables and had no machinery or
means of propulsion. The vessel had connections to the shore for water,
electricity and telephones. Cargo was stowed on the vessel, and the vessel
was also used to transfer goods to and from other ships.“ The vessel did
not, however, transport goods between locations, serving instead as a
warehouse.“ In denying vessel status the Court concluded: “It performed
no function that might not have been performed as well by an appropri-
ate structure on the land and by a floating stage or platform permanently
attached to the land. Finally, the Court considered it important that
the wharf boat “did not encounter perils of navigation to which craft used
for transportation are exposed.
The cases involving special purpose craft in the harbor have often“
reached results similar to Evansville. In Powers v. Bethlehem Steel
358. See, eg., Evansville & Bowling Green Packet Co. v. Chero Cola Bottling Co., 271
U.S. 19 (1926); New Bedford Dry Dock Co. v. Purdy, 258 U.S. 96 (1922); The ROBERT W.
PARSONS, 191 U.S. 17; Cope v. Vallette Dry Dock Co., 119 U.S. 625.
359. 271 U.S. 19. The issue of vessel status arose when the owner sought to limit liability
under the Limitation of Liability Act, 46 U.S.C. §§ 181-89 (1976).
360. Evansville, 271 U.S. at 19-21.
361. Id. at 22.
362. Id.
363. Id.
364. But see, eg. Senko v. LaCrosse Dredging Corp., 352 U.S. 370, 373-74
(1957)(dredge); Brunet v. Boh Bros. Constr. Co., 715 F.2d 196, 197-99 (5th Cir. 1983) (pile-
driving crane barge); Estate of Wenzel v. Seaward Marine Servs., Inc., 709 F.2d 1326, 1327-
28 (9th Cir. 1983)(six-foot submerged cleaning and maintenance platform used in cleaning
the hulls of vessels); Verrett v. McDonough Marine Serv., 705 F.2d 1437, 1441 (5th Cir.
1983)(small speedboat); Burks v. American River Transp. Co., 679 F.2d 69, 75 (5th Cir.
1982)(crane barge); Baker v. Raymond Int I. Inc., 656 F.2d 173, 181-84 (5th Cir. 1981)(pile-
driving barge), cert. denied, 456 U.S. 983 (1982); Luckett v. Continental Eng’g Co., 649 F.2d
441, 443 (6th Cir. 1981)(16-foot motor boat); Salgado v. MJ. Rudolph Corp., 514 F.2d 750,
755-56 (2d Cir. 1975)(floating crane); Bennett v. Perini Corp., 510 F.2d 114, 116 (Ist Cir.
1975)(crane barge); Slatton v. Martin K. Eby Constr. Co., 506 F.2d 505, 510 (8th Cir.
1974)(work barge), cert. denied, 421 U.S. 931 (1975); Hartley v. Peter Kiewit Sons Co., 543
F. Supp. 401, 404-05 (E.D.N.Y. 1982)(derrick barge and scow); Wendt v. General Dynamics
Corp., 1979 A. MC. 2897, 2900-03 (D.N.J. 1978)(navigation buoy). C McCarthy v. The Bark
PEKING, 716 F.2d 130, 133-36 (2d Cir. 1983)(museum vessel on exhibit as an artifact),
petition for cert. filed, 52 US.L.W. 3462 (U.S. Nov. 21, 1983) (No. 83-851).
365. See, eg. Fox v. Taylor Diving & Salvage Co., 694 F.2d 1349, 1353-54 (5th Cir.
1983)(submarine pipe alignment rig); Watkins v. Pentzien, Inc., 660 F.2d 604, 606-08 (5th
Cir. 1981)(construction platform), cert. denied, 456 U.S. 944 (1982); Smith v. Massman Con-
str. Co., 607 F.2d 87, 89 (Sth Cir. 1979)(caisson); Provost v. Huber, 594 F.2d 717, 719 (8th
Cir. 1979)(truck-trailer transporting house across frozen lake); Leonard v. Exxon Corp., 581
F.2d 522, 524 (Sth Cir. 1978)(floating construction platform), cert. denied, 441 U.S. 923
(1979); Shows v. Harber, 575 F.2d 1253, 1254 (8th Cir. 1978)(scaffold); Cook v. Belden Con-
crete Prods., Inc., 472 F.2d at 1002 (floating construction platform); Fleming v. Port Allen
474 SOUTH TEXAS LAW JOURNAL
Corp., the First Circuit provided an excellent summary and application
of the principles involved in determining whether a harbor structure is a
vessel. Powers was employed by McKie Lighter Co. as a pile driver. He
was injured on a raft owned by McKie while repairing pilings supporting
a Bethlehem Steel Corp. pier. The raft was about 25 feet long and 5 feet
wide and was made from 12 by 12 timbers. The raft was used to clean
the piles by chipping and sandblasting and to place a form around the
piles into which concrete was poured. The raft was moved around the
piles by poling or pulling on lines attached to the pier, and at least one
line normally remained to connect the raft and pier.“ Powers suffered
his accident while preparing to move the raft about twenty feet to some
piles underneath the pier.“ 1
The First Circuit began its analysis with the test from The ROBERT
W. PARSONS, “the purpose for which the craft was constructed and the
business in which it is engaged. In Powers, the purpose and business
of the raft were not to transport cargo or passengers across navigable wa-
ters but rather “to provide a stable platform for men repairing defective
piles.“ The court compared the raft to permanent floating docks which
have not been considered vessels by the courts.“ Thus, any “voyages” in
which the raft was “towed” between piers or in which it was poled or
hauled between piles were “no different from the dragging of a section of
floating dock from one location to another.“ If the raft were to be
towed for appreciable distances and be unattached to land, the court in-
dicated the raft might temporarily acquire vessel status.““ However,
hauling the raft under a pier while it remained attached to land did not
give rise to that status. Finally, the court distinguished the types of off-
shore vessels which were addressed in Robison, because their function
Marine Serv., Inc., 552 F. Supp. 27, 28-30 (M.D. La. 1982)(Geating work flat); Mayfield v.
Wel! Shipyard, Inc., 510 F. Supp. 605, 607 (E.D. La. 1981)(steel pontoon float); Berfect v.
American Commercial Barge Lines, 509 F. Supp. 734, 736 (E.D. La. 1981)(work flat or pon-
toon); Garcia v. Universal Seafoods, Ltd., 459 F. Supp. 463, 464-65 (W.D. Wash. 1978)(float-
ing sea‘ood processor).
366. 477 F.2d 843 (ist Cir.), cert. denied, 414 U.S. 856 (1973).
367. Id. at 645.
368. Id. at 646.
369. Id. at 646-47 (quoting Cook v. Belden Concrete Prods., Inc., 472 F.2d at 1001 (quot-
ing The ROBERT W. PARSONS, 191 U.S. at 30)).
370. Powers, 477 F.2d at 647.
371. Id. see, e.g., Cope v. Vallette Dry Dock Co., 119 U.S. at 627; Keller v. Dravo Corp.,
441 F.2d 1239, 1244 (5th Cir. 1971), cert. denied, 404 U.S. 1017 (1972); Chahoc v. Hunt
Shipyard, 431 F.2d 576, 577 (5th Cir. 1970), cert. denied, 401 U.S. 982 (1971); Atkins v.
Greenville Shipbuilding Corp., 411 F.2d at 282-83. But see United States v. Moran Towing
& Transp. Co., 374 F.2d 656, 662-64 (4th Cir. 1967), vacated sub nom United States v.
Bethlehem Steel Co., 389 U.S. 575 (1968); J.M.L. Trading Corp. v. Marine Salvage Corp.,
501 F. Supp. 323, 325-26 (E.D.N.Y. 1980).
372. Powers, 477 F.2d at 647.
373. Id. at 648; see United States v. Moran Towing & Transp. Co., 374 F.2d at 662-64.
SEAMAN STA TUS RECONSIDERED 475
“requires exposure to the hazards of the sea.
One area of recent controversy in the vessel status inquiry has been
whether aircraft may qualify as vessels so as to give seaman status to
their crew.“ e After the Supreme Court removed some aviation acci-
dents from the admiralty jurisdiction,’ the lower courts gradually re-
stored aircraft accidents to the maritime sphere.“ The United States
District Court for the Eastern District of Texas, however, took aircraft
further in Barger v. Petroleum Helicopters, Inc.“ Walter Barger was the
pilot of a helicopter owned by Petroleum Helicopters when it crashed in
the Gulf of Mexico, killing everyone aboard.“ The helicopter was
equipped with pontoons, a life raft and other life saving apparatus and
could land, take off, float and taxi on the water.“ The court initially
stated that the helicopter was “capable of being used as a means of trans-
portation and to float on water” within the meaning of the Robison
test.**' But the court also looked to the test from The ROBERT W. PAR-
SONS involving the purpose for which the craft is constructed and the
business in which it is engaged. The helicopter was constructed to trans-
port men and materials across portions of the Gulf of Mexico, and it was
specifically designed for movement on water. Consequently, the first part
of the test was satisfied.“ The business in which the helicopter was en-
gaged included transporting workers to and from drilling rigs in the Gulf
of Mexico. The court had “no doubt” that this was traditional maritime
activity because the helicopter was the “functional equivalent of a
crewboat.”*** Since flotation on water by itself is not sufficient to give
vessel status,“ the court stated that “risk and exposure to the hazards of
the sea must be present.“ Noting that when a helicopter malfunctions,
“the pilot and passengers stand a far greater chance of losing their lives
374. Powers, 477 F.2d at 647.
375. See generally Symposium Article, Aircraft as Vessels under the Jones Act and
General Maritime Law, 22 S. Tex. L. J. 595 (1981).
376. Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249 (1972).
377. See, e.g., Ledoux v. Petroleum Helicopters, Inc., 609 F.2d 824, 824 (5th Cir. 1980);
Roberts v. United States, 498 F.2d 520, 524 (9th Cir.), cert. denied, 419 U.S. 1070 (1974);
Hubschman v. Antilles Airboats, Inc., 440 F. Supp. 828, 840 (D.V.I. 1977); Hammill v.
Olympic Airways, 398 F. Supp. 829, 834 (D.D.C. 1975); Higginbotham v. Mobil Oil Corp.,
357 F. Supp. 1164, 1167 (W.D. La. 1973), aff'd in part and rev'd in part, 545 F.2d 422, 424
n.1 (5th Cir. 1977), rev'd on other grounds, 436 U.S. 618 (1978); Hark v. Antilles Airboats,
Inc., 355 F. Supp. 683, 685 (D. V. I. 1973).
378. 514 F. Supp. 1199 (E. D. Tex. 1981), rev'd, 692 F. 2d 337 (5th Cir. 1982), cert. denied,
103 S. Ct. 2430 (1983).
379. Id. at 1202-03.
380. Id. at 1206.
381. Id. at 1207.
382. Id.
383. Id. (footnote omitted).
384. See supra text accompanying note 356.
385. Barger v. Petroleum Helicopters, Inc., 514 F. Supp. at 1207.
476 SOUTH TEXAS LAW JOURNAL
in a mishap than their counterparts aboard a traditional seagoing vessel,”
the court concluded that the pilot was exposed to the hazards of the sea
to the same or greater extent than blue-water sailors.“ Thus, the court
held the helicopter was a vessel under the Jones Act and that Barger was
a seaman.”
Before the appeal in Barger was decided by the Fifth Circuit, that
court was presented with the aircraft as vessel question in Smith v. Pan
Air Corp.“ Curtis Jordan was the pilot of a plane being used to trans-
port passengers to a mineral operation near the mouth of the Mississippi
River which was practically inaccessible by land travel. The plane was
equipped with water flotation equipment which permitted landing in a
canal adjacent to the mineral operation. After delivering his passengers,
Jordan took off from the canal; the plane struck a set of guy wires to an
antenna tower; and Jordan was killed when the plane crashed onto Loui-
siana soil.“ The Fifth Circuit acknowledged that the seaplane was
“designed to float on water” as required by Robison, but the court
stated that Robison and its progeny were “concerned with ‘special pur-
pose structures’ employed by the offshore drilling industry that are
designed to ‘float’ and be towed across water to the drilling site despite
their incapacity for self - propulsion. In contrast to drilling vessels, the
primary function of aircraft is transportation by air, not on water.“ Not-
ing that the “perils of the air” are different from the “dangers of the
sea, the court concluded: “An airplane flying through the ozone does
not appear to be a vessel within the meaning of an act addressed to the
relief of seamen.”***
Following its analysis in Smith, the Fifth Circuit in Barger v. Petro-
leum Helicopters, Inc.“ reversed the district court decision granting sea-
man status to Barger. The court rejected the reasons given by the district
court in support of vessel status:
Neither a plane nor a helicopter undergoes a miraculous transformation
from aircraft into veasel when pontoons are attached to it, and their pi-
lots do not by this act become members of a vessel's crew. The helicop-
Id. at 1207-08.
Id. at 1208.
684 F.2d 1102 (5th Cir. 1982).
Id. at 1104.
Id. at 1113 (quoting Robison, 266 F.2d at 779).
391. Smith, 684 F.2d at 1113 (emphasis supplied). The court stated: “Thus we do not
find Robison's language, directed to another question, dispositive.” Id.
392. Id.
393. Jd.
394. Id. at 1114. The court also pointed out that “when Congress has legislated with
seaplanes in mind, it has distinguished them from vessels. Id. at 1113. But see Barger v.
Petroleum Helicopters, Inc., 692 F.2d 337, 344-45 (5th Cir. 1982)(Brown, J., dissenting),
cert. denied, 103 8. Ct. 2430 (1983).
395. 692 F.2d at 339-41.
.
SEAMAN STATUS RECONSIDERED 477
ter's amphibian adaptations were designed solely to permit it to take off
from and land on water and to taxi on water in order to position itself for
loading and unloading with a view to travel through the a It was an
aircraft that might use the surface of the water for a time facilitate
airborne commerce. An airplane does not become an automob because
it has wheels attached and can taxi on runways. The wheels no more
change aircraft into land vehicles than pontoons change aircraft into
vessels.***
The Fifth Circuit concluded: “The Jones Act was designed to aid those
who face the hazards of the sea, not the perils of the air.
Judge John R. Brown dissented in Burger“ and took issue with the
abandonment in Smith“ and Barger of the principles announced in Rob-
ison.“ Judge Brown agreed with the district court that the amphibious
characteristics of the helicopter and its functioning like a crewboat should
bring the aircraft within the “virtually undefinable Robison definition of a
special purpose craft. Furthermore, Judge Brown found statutory sup-
port from the inclusion of seaplanes and nondisplacement craft within
the definition of a vessel in Congress’ latest overhaul of collision regula-
tions.“ Judge Brown would have extended “the flexible maritime law’s
concern for those who go down to sea” to “today’s version of the ship’s
equivalent.“
Prior to Smith, the Fifth Circuit had not limited the Robison test of
“special purpose structures . . designed to float on water to drilling
rigs employed by the offshore drilling industry. The restrictive lan-
guage in the aircraft context of Smith can only bring confusion in deter-
mining whether other floating structures are vessels under the Jones Act.
b. Permanent Assignment/Substantial Work
The most radical expansion of the definition of a “member of a crew”
in Robison is the requirement that the worker be “assigned permanently
396. Id. at 339.
397. Id. at 340; see also Hebert v. Air Logistics, Inc., 720 F.2d 853, 856-57 (5th Cir. 1983)
(helicopter is not itself a vessel, nor is it an appurtenance of the fleet of barges it serviced);
Reeves v. Offshore Logistics, Inc., 720 F.2d 835, 836-37 (5th Cir. 1983) (helicopter is not a
vessel).
398. Jd. at 341 (Brown, J., dissenting).
399. Id. n. I.
400. Id. at 342-43, 345.
401. Id. at 343.
402. 33 U.S.C. § 1601(1) (Supp. V 1981) pr vides that the term vessel means every
description of watercraft, including nondiaple ment craft and seaplanes, used or capable of
being used as a means of transportation on water .
403. Barger, 692 F.2d at 345.
404. Robison, 266 F.2d at 779.
405. Smith, 684 F.2d at 1113; see, e. g., Hicks v. Ocean Drilling & Exploration Co, 512
F.2d 817, 823-24 (5th Cir. 1975)(oil storage facility), cert. denied, 423 U.S. 1050 (1976).
478 SOUTH TEXAS LAW JOURNAL
to a vessel” or perform “a substantial part of his work on the vessel.
By using the phrase “member oi a crew” in the LHWCA, Congress in-
tended to exclude seamen from the Jones Act who performed work on a
vessel but did not have the permanent assignment to it.“ Within a year,
the Fifth Circuit beg: » modifying the permanent assignment/substantial
work element, “[rjecognizing that the test set forth in Robison was ‘an
analytical starting point [rather] than a self-executing formula... .’"*
The permanent assignment/substantial work prong of the Robison
test offers alternative grounds for meeting the standard. It is obvious
that there is an element of permanence which must be met in order to
satisfy the assignment part of the test.“ ' but this criterion has not been
given a “wooden application. The Fifth Circuit has not required the
worker to sign seaman’s articles“ or to eat and sleep on the vessel to
which he claims a permanent assignment.“ “ Judge Rubin explained the
purpose of this element:
The requirement of a relatively permanent tie to the vessel is meant to
deny seaman’s status to those who come aboard a vessel for an isolated
piece of work, not to deprive a person whose duties are truly navigational
of Jones Act rights merely because he serves aboard a vessel for only a
relatively short period of time
The Fifth Circuit has developed the following standard for judzing
permanence: that the relation between the worker and vessel must be
substantial in point of time and work and that it not be spasmodic or
sporadic.“ The connection must be found in the employee’s primary or
406. Robison, 266 F.2d at 779.
407. See supra notes 88-94, 104-14 and accompanying text.
408. Holland v. Allied Structural Steel Co., 539 F.2d 476, 484 (5th Cir. 1976) (quoting
Brown v. ITT Rayonier, Inc., 497 F.2d 234, 237 (5th Cir. 1974), cert. denied, 429 U.S. 1105
(1977)); see also Roberts v. Williams-McWilliams Co., 648 F.2d 255, 261 (5th Cir. 1981);
Ardoin v. J. Ray McDermott & Co., 641 F.2d 277, 281 (5th Cir. 1981).
409. Davis v. Hill Eng g. Inc., 549 F.2d 314, 326 (Stb Cir. 1977); see also Bertrand v.
International Mooring & Marine, Inc., 700 F.2d 240, 246 (5th Cir. 1983), cert. denied, 52
U.S.L.W. 3533 (U.S. Jan. 16, 1984).
410. Fazio v. Lykes Bros. 8.8. Co., 567 F.2d 301, 303 (5th Cir. 1978); Rotolo v. Hallibur-
ton Co., 317 F.2d 9, 13 (5th Cir.), cert. denied, 375 U.S. 852 (1963).
411. Brown v. ITT Rayonier, Inc., 497 F.2d at 237; see also Guidry v. Continental Oil
Co., 640 F.2d 523, 529 (Sth Cir.), cert. denied, 454 U.S. 818 (1981); Davis v. Hill Eng g. Inc.,
549 F.2d at 327.
412. See, eg., Noble Drilling Corp. v. Smith, 412 F.2d 952, 957 (5th Cir.), cert. denied,
396 U.S. 906 (1969).
413. See, eg. Producers Drilling Co. v. Gray, 361 F.2d 432, 433 (Sch Cir. 1966). Eating
and sleeping on the vessel do not, however, create a connection with the vessel sufficient to
give seaman status. See, e. g., Owens v. Diamond M Drilling Co., 487 F.2d 74, 75, 76 (5th Cir.
1973); Keener v. Transworld Drilling Co., 468 F.2d 729, 731 (5th Cir. 1972); Ross v. Delta
Drilling Co., 213 F. Supp. 270, 272 (ED. La. 1962), cert. denied, 382 U.S. 966 (1965).
414. Porche v. Gulf Miss. Marine Corp., 390 F. Supp. 624, 631 (E. D. La. 1975).
415. Braniff v. Jackson Ave.-Gretna Ferry, Inc., 280 F.2d 523, 528 (5th Cir. 1960); see
also Bertrand v. International Mooring & Marine, Inc., 700 F.2d at 246; Dove v. Belcher Oil
SEAMAN STATUS RECONSIDERED 479
principal duties,“ and his incidentai or transitory contacts with au vessel
will not suffice.“ “ Although the Fifth Circuit has stated that the nature of
the work, not its duration, is the basis of the permanent relationship.“
the court has frequently looked to the length of employment on the vessel
as a controlling factor. The Fifth Circuit has been inclined to deny sea-
man status to workers who perform a single task, even when directly re-
lated to the mission of the vessel,“ but when the duration of employ-
ment and mission of the vessel are co-extensive, the worker has been
held to be a seaman.““
The Robison standards have been put to the test in the context of
fixed offshore platforms which are serviced by support vessels such as
tenders.*** Two decisions rendered on the same day by Judge Putnam of
Co., 686 F.2d 329, 333 (5th Cir. 1982); Barrios v. Engine & Gas Compressor Servs., 669 F.2d
350, 353 (5th Cir. 1982); Roberts v. Williams-McWilliams Co., 648 F.2d at 261; Guidry v.
Continental Oil Co., 640 F.2d at 529; Rotolo v. Halliburton Co., 317 F.2d at 13.
416. Billings v. Chevron, U.S.A., Inc., 618 F.2d 1108, 1110 (5th Cir. 1980); Longmire v.
Sea Drilling Corp., 610 F.2d 1342, 1346 (5th Cir. 1980); Holland v. Allied Structural Steel
Co., 539 F.2d at 485; Griffith v. Wheeling Pittsburgh Steel Corp., 521 F.2d 31, 37 (3d Cir.
1975), cert. denied, 423 U.S. 1054 (1976); Brown v. ITT Rayonier, Inc., 497 F.2d at 237;
Lowe v. California Co., 296 F. Supp. 1264, 1268 (E.D. La. 1969).
417. See, e.g., Mungia v. Chevron Co., U.S.A., 675 F.2d 630, 632 (5th Cir. 1982); Barrios
v. Engine & Gas Compressor Servs., 669 F.2d at 353; Ardoin v. J. Ray McDermott & Co.,
641 F.2d at 281; Longmire v. Sea Drilling Corp., 610 F.2d at 1346-47; Davis v. Hill Eng g.
Inc., 549 F.2d at 327-28; Holland v. Allied Structural Steel Co., 539 F.2d at 485; Griffith v.
Wheeling Pit‘sburgh Steel Corp., 521 F.2d at 37; Brown v. ITT Rayonier, Inc., 497 F.2d at
238; Rotolo v. Halliburton Co., 317 F.2d at 13; Thibodeaux v. J. Ray McDermott & Co., 276
F.2d 42, 46-47 (5th Cir. 1960); Ehrhardt v. B & G Crane Serv., Inc., 492 F. Supp. 425, 427
(E.D. La. 1980); Lynn v. Heyl & Patterson Inc., 483 F. Supp. 1247, 1251 (W. D. Pa.). aff'd,
636 F. 2d 1209 (3d Cir. 1980); Hartzfelds v. Travelers Ins. Co., 369 F. Supp. 955, 957 (W. D.
La. 1974).
418. Stanley v. Guy Scroggins Constr. Co., 297 F.2d 374, 378 (5th Cir. 1961); see also
Mungia v. Chevron Co., U.S.A., 675 F.2d at 633.
419. See, e.g., Guidry v. Continental Oil Co., 640 F.2d at 528-29 (pusher of casing crew
whose work on any vessel was usually less than 2 days); Dugas v. Pelican Constr. Co., 481
F.2d 773, 777-78 (5th Cir.) (roustabout in labor crew was sent to vessel to unload pipe for
one day), cert. denied, 414 U.S. 1093 (1973); Rotolo v. Halliburton Co., 317 F.2d at 13
(welder who was directed to perform a single repair job on a single vessel).
420. Bertrand v. International Mooring & Marine, Inc., 700 F.2d at 248.
421. See, eg. d.; Roberts v. Williams-McWilliams Co., 648 F.2d at 262; Ardoin v. J. Ray
McDermott & Co., 641 F.2d at 282; Davis v. Hill Eng’g, Inc., 549 F.2d at 326-27 n.22. But
see Fox v. Taylor Diving & Salvage Co., 694 F.2d 1349, 1352-53 (5th Cir. 1983) (denying
seaman status to a worker whose duties ended when the vessels’ missions began).
422. Compare (finding seaman status) Parks v. Dowell Div. of Dow Chem. Corp., 712
F.2d 154, 157-58 (5th Cir. 1983); Ardoin v. J. Ray McDermott & Co., 641 F.2d at 282; Davis
v. Vm Eng’g, Inc., 549 F.2d at 326-28; Noble Drilling Corp. v. Smith, 412 F.2d at 956-57;
Stanle
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