Borrowed Servant Doctrine Does Not Equate to Assignment Change

To qualify for seaman status a worker must establish that his duties “contribute to the function of the vessel or to the accomplishment of its mission,” and “have a substantial connection to a vessel in navigation both in duration and nature.” Chandris, Inc. v. Latsis, 515 U.S. 347 (1995). As a rule of thumb, the worker must spend in excess of thirty percent of working time aboard a vessel to satisfy the substantial connection prong of the test. To determine the seaman status issue, courts often confine their analysis of a worker’s employment to periods after he receives a change in work assignment in which his essential duties change.

In Wilcox v. Wild Well Control, Inc., the Fifth Circuit addressed the interplay between the borrowed servant doctrine and the seaman status test. The plaintiff was loaned by his employer to Wild Well Control, Inc. (the borrowing employer) to work as a welder on a platform decommissioning project offshore. He was allegedly injured from a gas explosion on the well and subsequently filed suit under the Jones Act. The Plaintiff argued that seaman status should be determined from the time that he began to work for Wild Well, rather than the total course of his employment. The Fifth Circuit rejected this argument, relying on precedent that seaman status was to be determined by the totality of a worker’s employment with his employer. The critical take away from this decision is that a change in work assignment does not necessarily occur each time that an employee is loaned to a borrowing employer.

Wilcox v. Wild Well Control, Inc.

Jordan G. McFaull

JMcFaull

Maritime Worker Not Entitled to Damages under 905(b) or Warranty of Seaworthiness

Section 905(b) of the LHWCA permits an injured maritime worker to bring suit against a vessel owner for negligence. In Scindia Steam Navigation Co. v. De Los Santos, the United States Supreme Court annunciated that a vessel owner owes three narrow duties to a maritime worker for purposes of 905(b). These duties include the: (1) turnover duty, (2) active control duty, and (3) duty to intervene.

In Willis v. McDonough Marine Service, the Plaintiff was injured when he tripped and fell on a temporary stair set that was used to access an offshore module from a barge. He subsequently filed a 905(b) action against the barge owner and bareboat charterer. In addition, plaintiff sought an unseaworthiness remedy on the grounds that he was a “Sieracki seaman.” The defendants filed a motion for summary judgment asserting that they did not breach the Scindia duties as a matter of law because they were not responsible for the placement of the stair set on the barge. They further contended that plaintiff was barred from an unseaworthiness remedy because he was a covered by the LHWCA.

The Eastern District of Louisiana held that the owner and bareboat charterer did not breach the Scindia duties because the defendants did not place the stair set on the barge and were not responsible for keeping it in a safe condition. The court also noted that the “active control duty” did not come into play because the barge was turned over to plaintiff’s employer, which was not a party to the case. Finally, the defendants did not owe a “duty to intervene” because there was no evidence that they had actual knowledge of the stair set’s placement on the barge.

The court also held that the plaintiff satisfied the status and situs tests for LHWCA coverage and, therefore, could not seek damages for unseaworthiness as a “Sieracki seaman.” While “Sieracki seamen” are entitled to an unseaworthiness remedy, the court explained that this is narrow class of persons who are excluded from coverage by the LHWCA and perform traditional seaman’s duties aboard vessels.  The court further opined that an unseaworthiness remedy would not have been available because the temporary stair set did not constitute an appurtenance to the barge.

Willis v. McDonough Marine Service

11th Circuit Addresses Maritime Salvage Case Arising out of Marina Fire

Under the law of salvage in general maritime law, a person who recovers another person’s ship or cargo after peril or loss at sea is entitled to a reward commensurate with the value of the property saved.  The essential elements of a salvage claim are: (1) A maritime peril from which the ship or other property could not have been rescued without the salvor’s assistance, (2) A voluntary act by the salvor ­– that is, he must be under no official or legal duty to render assistance, and (3) Success in saving, or helping to save at least part of the property at risk. Klein v. Unidentified Wrecked, etc., Vessel.  Regarding the first element, a maritime peril does not exist where the “vessel has the situation under control,” however, all that is necessary is that there be a “reasonable apprehension of peril.” Fine v. Rockwood.

In Biscayne Towing & Salvage, Inc. v. M/Y Backstage, a yacht at a marina caught fire and spread to other vessels. A towboat on the scene pulled one vessel out of its slip at the request of the fire department to create a firebreak.  The owner of next yacht in line, the M/Y BACKSTAGE, wanted to move his vessel but was prevented from doing so by the fire department. The vessel sustained extensive heat damage as a result.

The towing company filed a maritime salvage claim against the M/Y BACKSTAGE and its owner. The trial court granted summary judgment in favor of the M/Y BACKSTAGE, dismissing the complaint because “[the claimant] rendered indirect benefit to a vessel not in need of assistance.”  The towing company appealed.  On appeal, the U.S. 11th Circuit reversed, finding that there were genuine issues of material fact regarding whether or not the M/Y BACKSTAGE “could not have been rescued without the salvor’s assistance.” The court reserved resolution of “the purely legal question whether the existence of a maritime peril has a ‘needs-assistance’ component” as the defendant asserted.

Biscayne Towing & Salvage, Inc. v. M/Y Backstage