# Appendix — Icicle Seafoods, Inc. v. Worthington > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0878%3A8 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1986 - **Citation:** 475 U.S. 709 ## Text 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 HARD COPY AT THE TIME OF FILMING. IF AND WHEN A BETTER COPY CAN BE OBTAINED, A NEW FICHE WILL BE ISSUED. 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 * YO . / / ee 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. 18. Jd. * . 4 N * a Aste Tien nl. ies ai tat BOT; @ Cite TY aeiereit Pa B r rn ten e =. a a dn «fig alas 5 ent e de * 10 eee “42 PAPI A cee 7 n 6 > 1 2 i . «= 9 15 * ) 5 4 9 roe - * — — . 434 SOUTH TEXAS LAW JOURNAL 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). » . Ce 5 i j — * * 3 r ! 9 7 2 ers . ad W * N ‘ . * 4 N * nl ö * 1 ö a =, a @ OF at; 1 * 59 ee 2 ee 0. 18 * A « - : "| 4 > 5 e< 15 3 * wy ’ ie sina 9 a 0 —— — * 1 5 - > = * — “a c * ¢ — 3 85 * N iy - U a fa 7 — « 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 eS a ) i 1 1 1 1 * 1 26 es » 7 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 ‘ . 1 Py > 4 * * . * K >: : ms a) Pye as ae 1 — a 2 : -_ 7 es i : 8 ri — — 8 8 — so 8 n 1 Pas 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0878%3A8. Public record. Not legal advice.