The remedies available to an injured seaman are three: so-called Jones Act negligence, the common law tort of Unseaworthiness, and Maintenance and Cure, the recovering seaman’s ancient right to a stipend and medical care. Each has low hurdles to establishing liability. There are virtually no defenses to liability for Maintenance and Cure, which covers even illnesses unrelated to the employment. The Jones Act (46 U.S.C. §30104)[1] deems the defendant liable if the ship’s negligence played even the smallest role in causing the injury,[2] and Unseaworthiness liability is nearly strict: the defendant unconditionally warrants to the crew that the ship will in all respects be suitable for the intended service, and the employer need not even have reason to suspect the dangerous condition, which may be transitory.[3] With the Jones Act and Unseaworthiness each offering generous damages unknown to the world of workers’ compensation, including pain and suffering and lost future income, it is little wonder that an injured sailor will seek to be ruled a “Jones Act seaman,” the statute’s title being shorthand for this group of remedies.
An individual’s status on board determines if he or she is a Jones Act seaman. A guest, or a passenger, or – depending – a part-time crewmember is not a Jones Act seaman. A crewmember is a Jones Act seaman only if the crewmember’s connection to the ship is “substantial”, both qualitatively and quantitatively, and the plaintiff bears the burden of proof. Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995) is the leading case:
[A] seaman must have a connection to a vessel in navigation (or to
an identifiable group of such vessels) that is substantial in terms of both its duration and its nature. The fundamental purpose of this substantial connection requirement is . . . to separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based workers who have only a transitory or sporadic connection to a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea.
Many, many words have been written to flesh out this paragraph, but it is possible to offer rules of thumb. Fundamentally, the inquiry is to determine whether the plaintiff is truly a member of the vessel’s crew or only a land-based employee who happened to be working on the vessel when injured.[4]
As an initial matter, 46 U.S.C. §10101(3) excludes from the definition of seaman scientific personnel, sailing school instructors, and sailing school students. Particularly as regards scientific personnel, there is nuance and there are important exceptions.
Assuming the person is not excluded by definition, to qualify as a Jones Act seaman the work on board must contribute to the function of the ship. This factor is meant to weed out, say, the captain’s brother-in-law who is on board from time to time, doing no real work, or the oil rig mechanic for whom the ship is mere transportation. Whether a floating casino worker is a Jones Act seaman may turn on whether the casino is truly “in navigation”, a topic beyond the scope of this article.[5] Construction contractors working on frequently stationary barges present thorny questions of law and fact.[6] But there is no issue that regular crew – whether cook, bartender, master or deckhand – all contribute to the function of the ship.
Second, and typically more critically, the seaman must, at least in the ordinary case, work 30% of his or her total work hours in the service of the ship. The 30% rule originated in the Fifth Circuit, the most influential circuit for Admiralty law, and in Chandris the Supreme Court wrote “Generally, the Fifth Circuit seems to have identified an appropriate rule of thumb for the ordinary case: A worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act.”[7]
The 30% is proven by painstaking testimony, aided if possible by such stipulations as may be had. Somewhat surprisingly, for to do so ignores the realities of a seafarer’s dangerous life, many courts do not count toward the Chandris30% hours worked aboard while the ship is moored to a pier or anchored. The Third, Fifth, Sixth and Ninth Circuits do consider such time; while the Eleventh Circuit does not, and others have not ruled.[8] This split is particularly perplexing because the Supreme Court, in Chandris, remanded for a determination of whether the vessels Mr. Latsis worked on had been removed from navigation while in the shipyard, apparently content to allow shipyard time to count toward the 30%, provided only that the ship had not been removed from navigation.[9]
A sailor who works for a fleet under common control or ownership, sometimes on one ship and sometimes another, without reaching the 30% on any one vessel, will meet this factor if the aggregated time achieves 30%.[10] The law here is changing rapidly, with some courts holding that workers hired from a common labor hall, but who did not work for vessels under common control, were nevertheless Jones Act seamen.[11]
The fleet rule is ripe for revisiting, in a manner that reflects the fact that a seaman who works on several ships, perhaps 100% of his working hours, ought to receive the benefit of the Jones Act whether or not his hours in any single ship or fleet reach 30%. Given that the Jones Act is a remedial statute to be construed in favor of injured seafarers,[12]there seems no just reason to deny Jones Act seaman status to such individuals, and certainly ships are able to plan for Jones Act claims which might be brought by any of their seafaring employees.
The 30% rule is typically applied on a calendar year basis, but there is no clear law here. Your evidence, and your post-trial briefing, should, if appropriate, demonstrate by year the percentage of total work time the plaintiff was at sea with the defendant. But some cases suggest that the percentage of sea time over the sailor’s career with the defendant is important, and certainly that arithmetic result ought to be set forth as well.[13] Then again, other cases have held that a one-year look back period is appropriate.[14] Clearly the facts of your case may determine your argument as to the correct period to apply.
If a sailor works an eight- or ten-hour day on the ship, and goes home after work, only hours worked count toward the 30%. An exception may exist where the sailor is required to remain on call, and particularly if she was paid to be on call.[15] This exception may be at its strongest where the sailor is required to be on board within some brief interval after recall, or where the on-call sailor must remain physically near the ship, say in a bunkroom ashore.
Surprisingly, it is not perfectly clear that a sailor on a voyage is entitled to 24 hours per day credit toward the Chandris 30%. In Coffin v. Blessey Marine Svcs., 771 F.3rd 276 (5th Cir. 2014), the Fifth Circuit held that where vessel-based tankermen ate, slept and worked on board and were subject to the direction of the ship’s officers, 100% of time on board counted towards the temporal analysis, but Coffin construed the Fair Labor Standards Act.
The 24 hours per day rule makes compelling sense, for a sailor on a voyage is never truly “off”, either the clock or most certainly the ship. As Samuel Johnson observed, “No man will be a sailor who has contrivance enough to get himself into a jail; for being in a ship is being in a jail, with the chance of being drowned.”[16] The sailor is always on call, 24/7, for call up, drills, or however a superior officer may lawfully direct, and he is constantly exposed to wreck, collision and fire. When a blue water sailor has time off under way, he is confined to the steel bulkheads of the ship: no trips to town, no strolls on the beach, not even pierside visiting with loved ones. When he reaches port, desertion is illegal.[17] He is the ultimate example of an employee required to remain in the workplace, a point that ought to be made in the strongest of terms.[18]
Finally, suppose your client was newly assigned (or newly hired) to a permanent position in which he or she would work in the service of the ship at least 30% of the time, and the injury occurred on day two. On those facts, if they can be proven, your client is a Jones Act seaman.[19] The converse is also true: permanent assignment to a non-seaman position instantly alters the employee’s status.[20]
There are factors and equities other than the 30% rule, and they may be critical in the close case. Chandris and the other cases cited here emphasize that a Jones Act seaman’s connection with the ship will be “robust.” Although this factor is undeniably vague, and although the pool boy and the captain are equally entitled to Jones Act remedies, every effort ought to be made to demonstrate that the seaman’s allegiance was not to a shore-side employer but to a ship, and that the seaman’s job was vital to the ship’ mission, exposing him or her to the perils of the seafarer’s life.[21] That, after all, is the Chandris inquiry in a nutshell.
If the facts are there, administrative measures supporting the seafarer’s attachment to the ship should likewise be proven. On a merchant ship, “signing on” to the ship’s articles remains a moment of truth, committing the sailor to the voyage and subjecting him to criminal liability for desertion; consider Ishmael signing the Pequod’s articles, condemning himself to the doomed voyage. Ask for the articles and get them into evidence. Do the same with the sailor’s Merchant Mariner Credential, TWIC card[22], and Coast Guard Fitness Certificate, if your client has them, and try to prove that the ship required these documents of your client, and perhaps paid for the TWIC card.
Investigate whether a judicial estoppel may have occurred, in the form of a workers’ compensation pleading. Judicial estoppel precludes a party from asserting a position in one legal proceeding which is contrary to a position that it has already asserted in another.[23]
In Maine, the characteristic reaction of an employer to a workplace injury is to issue a Notice of Controversy, stating any affirmative defenses by which the employer hopes to escape liability for the workers’ compensation presumptively payable for a Maine work-related injury.[24] Not unusually, where an amphibious employee worked, for example, both on an island ferry and in the ticket office, and thus may or may not be a Jones Act seaman, the “NOC” may claim that the worker is exempt from receiving Maine workers compensation as a person “within the exclusive jurisdiction of admiralty law”, i.e. a Jones Act seaman![25]
While reliance is not strictly required for judicial estoppel, see John Hancock at 34, and while in the face of grossly insufficient Chandris facts such estoppel is unlikely to win the day, reliance can only add to the righteousness of your client’s argument. It is easy enough to produce evidence that your client, in response to the Notice of Controversy denying her workers comp and admitting that she is a Jones Act seaman, turned away from the workers’ compensation remedy, hired a maritime lawyer, entered into a fee agreement, committed herself to paying costs, made a federal case of the matter, and otherwise relied on the employer’s pleaded admission that her status is that of a Jones Act seaman.
Meeting the Chandris requirements can be challenging, and the prudent practitioner will add to the complaint a count alleging breach of the duty of ordinary care a shipowner owes to any person lawfully on board, whether or not crew.[26] Product liability ought also to be considered.
In the Cleaves Law Library stacks I once picked up The Law Against Perpetuities, a thick and dusty tome. In the forward the author warned “There is something in the subject which seems to facilitate error.”[27] The same might be said of plaintiff’s Jones Act practice. Jurisdiction both personal and subject matter, the role of insurance in determining whether the ship must be arrested as a defendant in rem, procedure surrounding public vessels, whether the ship was chartered and whether that charter was time, voyage or demise, competing administrative schemes such as workers compensation and the Longshoreman’s and Harborworkers Compensation Act: All these considerations and more spread a net capable of snaring even the careful practitioner.
You may reach me at (207) 838-0690.
[1] “A seaman injured in the course of employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law, with the right of trial by jury, against the employer. Laws of the United States regulating recovery for personal injury to, or death of, a railway employee apply to an action under this section.”
[2] CSX Trans. Inc. v. McBride, 564 U.S. 685 (2011).
[3] Carlisle Packing v. Sandanger, 259 U.S. 255 (1922). An extensive discussion of these overlapping remedies may be found in Williams v. Steamship Mutual Underwriting, 1954 AMC 2006 (1954).
[4] See Redman v. Yachting Solutions, 435 F.Supp.3rd 237 (D. Maine 2019) and cases there cited.
[5] Weaver v. Hollywood Casino-Aurora, 255 F.3rd 379 (7th Cir. 2001).
[6] See, e.g., Scheuring v. Traylor Barges, 476 F.3rd 781 (9th Cir. 2007).
[7] Chandris, Inc. v. Latsis, 515 U.S. at 371. Also see Dorr v. Maine Mar. Acad., 670 A.2d 930, 934 (Me. 1996) and Redman v. Yachting Solutions, 435 F.Supp.3rd 237 (D. Maine 2019).
[8] See Shade v. Great Lakes Dredge and Dock, 154 F.3rd 153 (3rd. Cir. 1998); Naquin v. Elevating Boats, LLC, 744 F.3rd927 (5th Cir. 2014); Searcy v. E.D. Slider, Inc., 679 F.2d 614 (6th Cir. 1982); and Keller Foundation v. Tracy, 696 F.3rd836 (9th Cir. 1982)(allowing work while moored or anchored to count toward the 30%); contra, Clark v. American Marine and Salvage, 11th Cir. 2012)(although barge which plaintiff serviced and was crew on was in navigation when it was hauled up on a beach, time spent maintaining barge did not count toward 30%).
[9] Chandris, 515 U.S. 347, 361. “In navigation” is a term of art, and short of a total rebuild (and perhaps even then) a ship in the shipyard will remain in navigation for Jones Act purposes. See, e.g., Senko v. LaCross Dredging, 352 U.S. 370 (1957) and West v. United States, 361 U.S. 118 (1959).
[10] Barrett v. Chevron U.S.A., 831 F.2d 554 (5th Cir. 1987); Shade v. Great Lakes Dredge & Dock Co., 154 F.3d 143, 152 (3d Cir. 1998); and Redman v. Yachting Solutions, 435 F.Supp.3rd 237 (D. Maine 2019).
[11] Papai v. Harbor Tug and Barge Co., 67 F.3rd 203 (9th Cir. 1995); reversed on other grounds, Harbor Tug and Barge Co. v. Papai, 520 U.S. 549 (1997).
[12] Spinks v. Chevron Oil, 507 F.2d 216 (5th Cir. 1979).
[13] Jefferson v. Weeks Marine, 2016 U.S. Dist. Lexis 12741 (E.D. La. 2016).
[14] Mudrick v. Cross Equipment, 250 Fed. Appx. 54 (5th Cir. 2007).
[15] See Desmore v. Baker Hughes Oilfield Operations, Inc., 157 F.Supp.3d 559, 571 (E.D.La. 2016)(“The parties do not dispute that Desmore was paid for his on-call time . . .. Accordingly, the Court finds that it would be inappropriate to exclude the time spent on-call in calculating Desmore’s work time.”)
[16] James Boswell, The Life of Samuel Johnson, letter to Lord Chesterfield of January 9, 1759, p. 312 (Osgood ed., 1917).
[17] Title 46 U.S.C. §11501(1).
[18] A curiously compelling Judge Posner opinion, Harkins v. Riverboat Services, Inc., 385 F.3d 1099 (7th Cir. 2004), addressed whether 29 U.S.C. §203, the Fair Labor Standards Act of 1938, required overtime pay for certain employees of a casino ship operating on Lake Michigan. The trial court had found the plaintiffs to be exempt from overtime, under the FLSA’s exemption for “seamen.” In affirming the lower court, Judge Posner observed that while as seamen the plaintiffs did not receive overtime wages, they had the benefit, if injured, of the generous remedial scheme set forth in the Jones Act, an economic balancing of sorts. Id. p. 1103.
[19] Skinner v. Schlumberger Tech Corp., 2015 AMC 1630 (W.D. La. 2015); Chandris, Inc. v. Latsis, 516 U.S. 347 (1995).
[20] Smith v. Nicklos Drilling, 842 F.2d 598 (5th Cir. 1988).
[21] See Chandris, 515 U.S. at 370. The relevance to the Chandris inquiry of “perils of the sea” oscillates, and an important recent Fifth Circuit opinion seems to diminish its role. Sanchez v. Smart Fabricators of Texas, LLC, 19-20506 (5th Cir. 2021).
[22] Transportation Worker Identification Credential, required for seafarers to enter secure pier areas.
[23] John Hancock Life Ins. Co. v. Abbott Laboratories, 863 F.3d 23, 34 (1st Cir. 2017).
[24] Title 39-A M.R.S. §305.
[25] Title 39-A M.R.S. §102(11).
[26] Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959).
[27] Roland Gray, The Rule Against Perpetuities p. ix, (4th ed. 1942).