Rig Owner Not Liable for Failing to Search for Lost and Submerged Rig

A tanker vessel allided with an unmarked and submerged wreck of a jack-up drilling rig that was lost during Hurricane Ike. In the aftermath of the hurricane, the jack-up drilling rig owner discovered that the rig was no longer moored in the Gulf of Mexico. The rig owner timely searched for the rig using aerial searches of the Gulf of Mexico and subsea sonar searches within the estimated drift path of the rig. These search efforts proved unsuccessful, and the jack-up drilling rig owner concluded its search. Later evidence showed that within ten hours of Hurricane Ike’s passage, the jack-up drilling rig traveled 100.9 miles west-northwest, capsized, and came to rest in 115 feet of water in the South Sabine Point Lightering Area, approximately 65 miles south of Galveston, Texas. The tanker vessel allided with the wreck at this location approximately six months later, causing substantial damage.

The tanker owner asserted that the jack-up drilling rig owner was liable under 33 U.S.C. § 409 for failure to mark the wreck. The case proceeded to a bench trial. After all parties put on the majority of their evidence and the tanker owner rested its case, the district court granted the rig owner’s motion for judgment, finding it had conducted a full, diligent, and good-faith search for jack-up drilling rig, but was unable to find it. The tanker owner appealed to the U.S. Fifth Circuit.

The tanker owner’s primary argument was that the district court applied an incorrect legal standard in making its factual finding that the jack-up drilling rig owner conducted a full, good-faith search. The tanker owner argued that the district court should have placed greater weight on the fact that the drilling rig owner did not search in the area where jack-up drilling rig ultimately rested, because that was an area where the wrecked rig would constitute a hazard to navigation.

The Court found no reversible error based on the evidence presented at trial, that the search the jack-up drilling rig owner did conduct was full, diligent, and in good faith, even though the jack-up drilling rig owner did not search the area 100 miles away considered a hazard to navigation.

ENSCO Offshore Co v. M/V SATILLA

Rail Yard Worker Fails LHWCA Situs and Status Tests

Claimant worked for Employer for twenty years when he became aware that his exposure to workplace noise had caused hearing loss. He brought a claim under the Longshore Act. He argued that although he worked as a trackman operating switching engines, he sometimes worked on a track near a shipping channel and was a member of the longshoreman’s union, thus, he was a longshoreman under the Act. Employer controverted the claim on the grounds that Claimant never worked on, over, or adjacent to navigable waters. Employer further argued that switching cars was not integral or necessary to the loading or unloading of a vessel.

The claim was referred to the Office of Administrative Law Judges and the ALJ found that Claimant failed to meet both the situs and status tests. First, the judge cited the Fifth Circuit’s decision in New Orleans Depot in finding that the rail yard did not adjoin navigable waters because it was not bordering on such waters, and the rail yard was not used by Employer for the loading or unloading of a vessel. Further, the judge found that Claimant was not a ship repairman or ship builder, and his work was not an integral or essential part of the loading or unloading process, such that if he failed to perform his duties, the loading process would come to a halt. The claim was denied.

Watson v. Rail Switching Services, Inc.

Failure to Conduct JSA for Routine Task is Not a Breach of Duty

On August 5, 2015, the United States Fifth Circuit Court of Appeals issued its opinion in Glaze v. Higman Barge Lines Inc.  The court was asked to review the grant of summary judgment in favor of Higman on the Plaintiff’s Jones Act, unseaworthiness, and maintenance and cure claims.  The Plaintiff, who worked for Higman as a relief captain for approximately four years, alleged injury as a result of maintenance he performed on one of Higman’s vessels.  He claimed that he was instructed to perform a task in the absence of a job safety analysis and that these unsafe work methods rendered the vessel unseaworthy.  The district court granted summary judgment on all Plaintiffs’ claims and he appealed.


On appeal, The Fifth Circuit first analyzed the Plaintiff’s Jones Act claim and determined that is was without merit.  The Court ruled that the Captain’s alleged failure to conduct a job safety analysis did not establish a violation of the standard of care.  Further, although a company safety manual can inform what constitutes ordinary prudence, it does not itself create a legal duty.  The task that the Plaintiff was performing—grinding and stripping rust with a needle gun—was a routine task and the Fifth Circuit had previously held that failure to perform a job safety analysis on a routine task is not breach of duty.  The Plaintiff was an experienced seamen of forty years and admittedly knew how to use a needle gun and failed to controvert testimony that he himself trained at least one other crew member on how to use a needle gun to chip rust.


The Fifth Circuit also affirmed the grant of summary judgment as to Plaintiff’s unseaworthiness claim.  The basis of Plaintiff’s claim for unseaworthiness was the failure of the Captain to perform a job safety analysis, that the ship did not have safe housekeeping measures, and that the plaintiff was required to perform this task only one month before the vessel entered dry dock for maintenance.  The Fifth Circuit held that a Captain’s failure to conduct a job safety analysis, even if negligent, did not give rise to an unseaworthiness claim.  The Court further found that there was no support for the Plaintiff’s claim of unsafe work methods.  Plaintiff presented no evidence that the needle gun was working improperly or that its use or the vessel was unsafe.  Also, the fact that the vessel was set to undergo routine maintenance in dry dock failed to demonstrate that the vessel or any appurtenance thereto was unfit for its intended purpose or that the crew was inadequate, understaffed, or ill trained.


Addressing the Plaintiff’s maintenance and cure claim, the Court found that there was no evidence that the Plaintiff was injured while working on the vessel except for his lawsuit.  Further the Plaintiff did not report an injury to his employer until the suit was filed and he previously told his physicians from who he had sought treatment for his pain that he had not been injured.  The vessel logs did not reflect that any chipping work was done on the day the Plaintiff claimed that he was injured.  The Fifth Circuit affirmed the district court’s grant of summary judgment in favor of the defendant employer, Higman.

Glaze v. Higman Barge Lines, Inc.

“I’m on a boat!”- Well, Then Maybe You’re a Seaman

The law has long held that seamen are afforded special protections. As early as 1823, the law recognized the perils of this particular profession: vulnerability to sickness, exposure to the harsh world of the seven seas, and lack of wealth and social standing. Harden v. Gordon, et. al., 11 F. Cas. 480 (D. Maine 1823). Congress recognized the need for this heightened protection and passed the Jones Ace in 1920. The passage of the Jones Act thereafter allowed an injured seaman to pursue a negligence action against his employer. However, Congress forgot to tell us who qualified as a seaman.

Cue the numerous decisions attempting to carve out the definition of a seaman for purposes of the Jones Act. The Supreme Court recognized it needed to step in to resolve the ongoing debates created over an injured worker’s status. In Chandris, Inc. v. Latis, 515 U.S. 347 (1995), the Supreme Court held that a seaman was a worker who contributes to the function of the vessel or the accomplishment of its mission, and must have a substantial connection to the vessel. The Court looked to Barret v. Chevron U.S.A., Inc., 781 F2d 1067 to determine that a substantial connection means spending more than 30% of employment aboard a vessel. In Alexander v. Express Energy Servs. Operating, L.P., the Fifth Circuit provided additional guidance on which duties have a substantial connection to a vessel. In sum, the Court determined that in order to qualify as a seaman, the employment must be spent aboard the vessel, not near it. The plaintiff in Alexander was a lead hand/operator in the plug and abandonment department, which plugged decommissioned oil wells on various platforms in the Gulf of Mexico. The Court determined that plaintiff did not sufficiently establish that he spent more than 30% of his time working aboard a vessel, as he testified that he worked alongside vessels the majority of the time. Accordingly, plaintiff was not considered a seaman and could not recover the remedies afforded under the Jones Act.

While this decision serves to provide additional guidelines as to seaman status, the legal determination will ultimately be on a case-by-case basis.

Alexander v. Express Energy Servs. Operating, L.P.