As previously reported (regarding the Naquin decision), the Fifth Circuit recently expanded the scope of Jones Act seaman status to include a shipyard worker who spent 70% of his time working aboard vessels (usually moored to the shipyard’s dock, and only very occasionally while the vessels were being repositioned or on test-runs), and the remaining 30% of his time working in a fabrication shop or on a land-based crane. As the earlier post predicted, Naquin’s wake is already sending waves through the lower courts.
In particular, the Eastern District of Louisiana in Duet v. American Commercial Lines, LLC, Case No. 12-3025, Rec. Doc. 58 (E.D. La. Apr. 2, 2014) recently issued a sua sponte order remanding a case to state court – after previously denying remand based on the defendants argument that the plaintiff had fraudulently pled Jones Act seaman status – on the basis that the intervening decision in Naquin had changed the inquiry for determining whether a plaintiff qualifies as a Jones Act seaman.
The plaintiff in Duet worked for a barge fleeting/barge repair/barge cleaning company (ACL Transportation Services, LLC, “ACLTS,” via his payroll employer St. James Marine, Inc.) as a welder and mechanic. ACLTS provided barge cleaning and repair services for various barges owned by its sister company American Commercial Lines, LLC (“ACL”). As part of its fleeting/repair/cleaning operations, ACLTS maintained a barge repair facility located on the Westbank of the Mississippi River in Vacherie, Louisiana, part of which “consists of a number of barges tied together and moored to the riverbank in order to create a stationary work platform [i.e. floating dock]. . . [that] has not moved since originally moored and has no mode of propulsion.” Case No. 12-3025, Rec. Doc. 27. ACLTS likewise owned and operated several of its own fleet boats to assist with fleeting operations, but these push boats had their own full time live-aboard (14 on, 7 off) crews.
The plaintiff was not assigned to any vessel; commuted to work at the ACLTS facility each day; performed work on ACLTS fleets boats and barges, but almost always while they were moored; and only occasionally rode on fleet boats to reach remotely located vessels/barges in need of repair. The plaintiff also occasionally helped reposition barges at the floating dock in order to facilitate a repair, but only once or twice a month and only in connection with his duties as a mechanic. Finally, the plaintiff worked exclusively within the confines of the floating dock except for two occasions: to help save a sinking vessel, and to travel on a “sea-trial” to confirm that a vessel he repaired was in operable condition.
Initially, the Duet court denied the plaintiff’s motion to remand the case, after ACL, ACLTS, and St. James removed the case on the basis that the plaintiff was a longshoreman under the Longshore Harbor Workers Compensation Act (LWHCA), and had only asserted fraudulent Jones Act claims in order to prevent removal. Thereafter, both ACLTS and ACL filed motions for summary judgment dismissal of all the plaintiff’s claims pursuant to the LHWCA. Moreover, the plaintiff filed express statements of no opposition to both summary judgment motions.
However, before the court had formally ruled on the (expressly) unopposed summary judgment motions, the court issued its above-described sua sponte order, in the wake of Naquin, remanding the case on the basis that under Naquin, the plaintiff may in fact qualify as a Jones Act seaman (and thus his Jones Act claims had not been fraudulently pled).
The Duet ruling confirms the historic and critical import of the Naquin decision, and should be further warning to shipyards – as well as barge fleeting/cleaning/repair concerns and any other enterprises in which otherwise land-based employees regularly board vessels – that employees who have traditionally been considered non-seamen may have metamorphosed into Jones Act seamen after Naquin. As noted in the earlier post, and exemplified in Duet, Naquin raises serious issues relevant to both management of operations, insurance coverages and recoupment of LHWCA comp payments (under Chenevert v. Travelers Indemnity Co., Case No. 13-60119 (5th Cir. Mar. 7, 2014)).