Eastern District of Missouri Holds that Plaintiff Was Not a Jones Act Seaman

Welder by Greg Younger - FlickrDefendant owns a large facility on the bank of the Mississippi River that loads materials onto barges and rail cars.  Also, Defendant owns four large towboats.  Plaintiff worked for Defendant for the past eleven years, spending 90% of his time “welding various metal components around Defendant’s land-based facilities, on Defendant’s towboats, and on Defendant’s barges.”  The remaining 10% of Plaintiff’s work was spent performing “various tasks on land and on docked boats, including reworking cable and transmission lines and doing repair work.”

Plaintiff was injured while riding as a passenger on a water taxi owned by Defendant, and used to transport crew members to and from job sites.  Thereafter, Plaintiff filed a complaint alleging negligence under the Jones Act.  Defendant filed a motion for summary decision arguing that Plaintiff was not a seaman.  The United States District Court for the Eastern District of Missouri agreed.  Although Plaintiff contributed to the function of Defendant’s vessels, he did not have a sufficiently substantial connection to Defendant’s vessels:

[T]he Court agrees with Defendant that no reasonable jury could find that Plaintiff’s connection to the fleet of vessels is substantial in terms of its nature. The Supreme Court has indicated that Chandris’s second prong is intended to identify those employees “whose work regularly exposes them to the special hazards and disadvantages to which they who go down to sea in ships are subjected.”  Lower courts have noted that the “special hazards and disadvantages” faced by seamen include the “need to fight fires without outside assistance, the need to abandon ship, the need to survive exposure to inclement weather until help arrives, potential delay or inconvenience in being transported offsite to receive medical attention, and being stuck on a vessel under the control of its Master and operator for extended periods of time until the next port call.”  In contrast, maritime hazards that are faced by longshoremen and seamen alike—such as the danger of falling overboard, the trip-and-fall hazards associated with walking on decks, the risks of injuries while handling lines, the risks associated with wind-gusts and river turbulence, and the dangers associated with the movement of docked vessels in the water—are not considered perils of the sea for purposes of the Jones Act inquiry.

Courts have frequently found that individuals who work exclusively or primarily aboard docked vessels are, as a matter of law, not seamen because they are not regularly exposed to the perils of the sea, especially when other circumstances indicate that the individual is not assigned to the vessel as a member of its crew.

The Court has identified some cases in which courts have found that a plaintiff who worked largely aboard docked vessels was a seaman; however, those cases have involved other factors suggesting a substantial connection to the vessel, such as the plaintiff being assigned to the vessel, the plaintiff performing traditionally sea-based duties, and/or the plaintiff being treated as a Jones Act employee by his or her employer.

When Plaintiff’s duties are viewed in light of the above cases, it is clear that no reasonable jury could find that Plaintiff has a substantial connection to Defendant’s vessels that satisfies the second prong of the Chandris test. First, like the plaintiffs in Vasquez and Saienni, who worked primarily aboard docked vessels and only rarely on boats that were under way, Plaintiff is not regularly exposed to the special hazards and disadvantages faced by those who go out to sea. Plaintiff does 90% of his welding work (which is itself 90% of his work) “on land or connected to the land right there on the dock.” Although he boards docked vessels to do welding and other work, he only rarely does any work on vessels while they are moving up and down the river. Moreover, none of the other factors courts have used to find seaman status are present here. Plaintiff is not assigned to any vessel and is not a crew member of any vessel. After he finishes a project performed aboard a vessel or barge, he returns to shore. He admits that if he is assigned to anything, it is his welding truck. He does not regularly perform traditionally sea-based activities such as piloting towboats or acting as a lookout, and he has no marine license or marine radio, and uses his truck’s radio for land-based operations. Taken together, these facts establish that Plaintiff is not “a member of the vessel [s’] crew,” but is rather “a land-based employee who happen[ed] to be working on the vessel[s] at a given time.”

Because no reasonable jury could find that the second prong of Chandris is satisfied, Plaintiff is not a seaman within the meaning of the Jones Act, and Defendant is entitled to summary judgment on Plaintiff’s Jones Act claim.

Turner v. Wayne B. Smith, Inc., No. 2:13-cv-100-SPM, 2014 WL 6775796 (E.D. Mo. 12/2/14). Excellent image courtesy of Flickr user Greg Younger.

Jones Act Claim Dismissed on Summary Judgment

Plaintiff worked as a relief captain for Defendant. He maintained that he was injured as a result of an accident aboard Defendant’s vessel, or that Defendant was negligent or provided an unseaworthy vessel. Defendants moved for summary judgment on the grounds that Plaintiff could not establish the necessary elements of his case.

Plaintiff alleged that he was injured while chipping with a needle gun at the instruction of the vessel’s captain. Upon learning that he could not have been injured on the date he alleged because he was not working aboard Defendant’s vessel on that date, he claimed new potential dates of injury. Still, the vessel logs did not show that Plaintiff did any chipping work. Additionally, although Plaintiff testified that the vessel’s captain ordered him to do the work and a tankerman saw him performing the work, the vessel’s captain said he did not order the work and would not have ordered the work for various reasons, and the tankerman said he never saw Plaintiff doing the work in question. No injury was ever reported by Plaintiff to Defendant until the instant suit, and no injury was reported to any medical provider.

In reviewing the facts in a light most favorable to the non-moving party, the Court found that Plaintiff did not create any genuine issues of material fact regarding his claims of negligence, unseaworthiness or maintenance and cure. Based upon Plaintiff’s inconsistent testimony regarding the date of the accident, the lack of corroboration by witnesses, and Plaintiff’s failure to report any injury, the Court held that Plaintiff could not prove that he had any accident or suffered any injury while working aboard Defendant’s vessel. The Court therefore granted Defendant’s Motion for Summary Judgment.

Glaze v. Higman Barge Lines, Inc., 2014 WL 5393355 (E.D. La. 2014).

11th Circuit Denies Arguments Against Jones Act Arbitration and Removal

The Eleventh Circuit issued an unpublished Jones Act decision discussing–albeit briefly–removal and arbitration.  Plaintiff argued against removal and arbitration.  The Eleventh Circuit disagreed, saying:

Trifinov also contends that his Jones Act claim cannot, as a matter of law, be removed to federal court.  We accept that Jones Act claims are not generally subject to removal.  But that Jones Act claims may be subjected to arbitration under the [United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards] is clear.  And the Convention authorizes the removal to federal court of claims “relat[ing] to an arbitration agreement or award falling under the Convention.”

Although we have not addressed the removal issue expressly, this Court has routinely compelled arbitration of Jones Act claims that have been removed under 9 U.S.C. § 205 when they relate to an arbitration agreement under the Convention.  And the few other courts that have decided the issue have concluded that removal of Jones Act claims is proper under the Convention.  We are persuaded that Trifinov’s Jones Act claim, which is governed by the Convention, was removed properly to federal court.

Trifinov v. MSC Mediterranean Shipping Co. SA, — F.A’ppx —- (11th Cir. 10/21/14).

Trial Court Disbelieved Plaintiff, Determined He Was Not a Seaman

Last week, Louisiana’s Third Circuit published a Jones Act decision wherein it affirmed the lower court’s decision that Plaintiff failed to carry his burden of proof that he was a Jones Act seaman.  Plaintiff began working for his employer in a land-based warehouse, but he expressed interest in offshore work.  Soon thereafter, Plaintiff began working as a helper on a platform fixed to the outer continental shelf; but he ate, slept, and used the restroom facilities on a vessel called the RAM VII.  Plaintiff was injured when a Teflon pipe weighing two-and-a-half pounds struck him in the face.  Plaintiff then filed a petition for damages wherein he alleged entitlement to compensation based on his status as a seaman under the Jones Act.  The trial court disagreed.

On appeal, Louisiana’s Third Circuit discussed Chandris, and the Supreme Court’s test for seaman status.  Essentially, Plaintiff complained that the “trial court incorrectly based its finding that he failed to carry his burden to prove that he was a Jones Act seaman solely based upon how much time he physically spent on a vessel.”  The appellate court disagreed:

Our review of the record does not indicate that the trial court found [Plaintiff] was not a seaman based solely because he was not working on the RAM VII 50% of the time.  Rather, it is clear that the trial court determined that [Plaintiff] was not credible and, as such, it did not give credence to his assertion that he spent 50% of his time working on the RAM VII.  The trial court then cited testimony contrary to [Plaintiff’s] assertion that he spent 50% of his time physically on the RAM VII.

In essence, the trial court did not believe Plaintiff’s allegations that he spent 50% of his time on a vessel.  Because the Supreme Court’s Chandris test requires consideration of the amount of time a seaman is on a vessel, Plaintiff’s lack of credibility was fatal to his claim.

But that’s not all.  The appellate court also discussed the evidence that refuted Plaintiff’s claims that he was a seaman.  The court cited testimony of a former employee, a present employee, and the employer’s safety manager.  The testimony refuted Plaintiff’s allegations that he worked 50% of the time on the RAM VII.  Indeed, “[t]he summation of the witness testimony can reasonably be interpreted that [Plaintiff’s] connection to the RAM VII was tenuous and, therefore, not substantial in duration or nature as required by the second prong of the Chandris test.”  Accordingly, Plaintiff was not a seaman and the trial court did not err.

Troglen v. Hydraulic Well Control, 2014-308 (La. App. 3 Cir. 10/8/14); — So. 3d —-.