Brown-Water Seaman’s Alleged Injury Was Outside Course and Scope of Employment

In Shoffner v. State, a Washington state appellate court was asked to determine the status of ferry worker injured while walking to her vessel to begin her shift.  Plaintiff, Leigh Ann Shoffner, was employed by the State of Washington on a temporary canal ferry servicing an area undergoing a substantial bridge construction project.  While the bridge was closed, the Washington State Department of Transportation, in conjunction with a private ferry company, operated a free passenger ferry service.  While walking from the employee parking lot toward the vessel, she allegedly twisted her knee when she stepped into a depression in the public sidewalk.

Plaintiff sought maintenance and cure from the State, which was denied.  She filed suit against the State and the private ferry company, alleging unseaworthiness, negligence under the Jones Act. She also renewed her request for maintenance and cure.  Plaintiff and defendants both moved for summary judgment as to whether plaintiff was in the course and scope of her employment when she was allegedly injured.  The trial court granted defendants’ motion and dismissed the suit.

On appeal, the court analyzed the distinctions between “brown-water seamen” and “blue-water seaman.”  The court noted that blue-water seamen live aboard their vessels by virtue of being at sea and are generally considered to be on duty even when on shore leave, while brown-water seamen, also known as commuter seamen, commute between their homes and their place of work and are not required to sleep on the vessel.  In determining whether brown-water seamen are in the course and scope of their employment, courts have considered (1) whether the employee was on a direct route to resume her duties on the vessel; (2) whether the employee would have been subject to discipline if she did not arrive; and (3) whether the employee’s return was for both her and the vessel owner’s benefit.  In addition to these factors, the court identified other course and scope indicators, including whether the seaman was under vessel owner supervision when injured, whether the vessel owner owned or had control over the injury site, and whether the seaman received a travel stipend.

The court determined that plaintiff was not in the course and scope of her employment when injured.  Although she offered evidence that she was on a direct route to her vessel and that her return benefitted both her and WSF, this alone was not enough.  She was not being paid for travel time or mileage and was not under the vessel owner’s supervision when she was injured.  She also offered no evidence that she would have been subject to discipline if she did not walk along this particular route from her car to the vessel and she could not show that her employer exercised control over the specific injury site or its condition.  Accordingly, the appellate court affirmed the trial court’s grant of defendants’ motion for summary judgment dismissing plaintiff’s claims.

Shoffner v. State, — P.3d —-, 2013 WL 203419 (Wash. Ct. App. 1/16/13).

Trevor Cutaiar

Trevor Cutaiar

Trevor Cutaiar represents employers and insurance carriers in the areas of Admiralty & Maritime Law, federal workers' compensation and General Casualty & Insurance Defense. He can be contacted at (504) 595-3000 or tcutaiar@mblb.com.
Trevor Cutaiar