The U.S. Fifth Circuit Court of Appeals sitting en banc recently rendered an important opinion for all employers of maritime workers who look to define their employees as either “seamen” or “other maritime workers.” In Sanchez v. Smart Fabricators of Texas, L.L.C., the Fifth Circuit adopted a test that is consistent with U.S. Supreme Court case law, seeking to establish more clarity than the “perils of the sea” test.
Gilbert Sanchez was employed by a land-based welder and worked on two jack-up barges. He worked on the first barge for 48 days while the barge was jacked up and level with the dock. The job on the second barge was set for 13 days and was located on the Outer Continental Shelf. Gilbert Sanchez was injured on the 11th workday on the second barge, and filed suit as a Jones Act seaman. The Court ruled that Sanchez was not a seaman because he did not satisfy the substantial nature requirement.
In this opinion, the Fifth Circuit combined one key element from each of three landmark cases from the U.S. Supreme Court to create a comprehensive two-prong test to use when classifying workers. The first prong, from McDermott International, Inc. v. Wilander, asks whether the worker contributed to the function of the vessel, either directly or indirectly working to maintain the vessel in a condition to accomplish its mission. The second prong, from Chandris, Inc. v. Latsis and Harbor Tug and Barge Co. v. Papai, is the substantial connection test. The substantial connection test has two elements: substantial duration and substantial nature. In Sanchez, the Fifth Circuit added some additional inquiries into the substantial nature determination:
- Does the worker owe his allegiance to the vessel, rather than simply to a shore-side employer?
- Is the work sea-based or involve seagoing activity?
- (a) Is the worker’s assignment to a vessel limited to the performance of a discrete task after which the worker’s connection to the vessel ends, or (b)Does the worker’s assignment include sailing with the vessel from port to port or location to location?
In Wilander, the Supreme Court ruled that seamen “contribute to the function of the vessel or to the accomplishment of its mission.” The emphasis is that the “the key to seaman status is the employment related connection to the vessel in navigation.” Using this language from Wilander, the Fifth Circuit ruled that the first prong of a seaman classification hinges on the employment related connection to the vessel and whether the worker contributed to the function of a vessel. A worker either directly contributes toward the vessel’s mission or indirectly contributes with work necessary to keep the vessel in a condition ready to accomplish its mission as a vessel.
In Chandris, the Supreme Court recognized that there are many workers who are sometimes land-based and other times sea-based. A worker in this category may satisfy the initial threshold, but further inquiry is needed. A worker cannot change classification from a seaman sometimes to a non-seaman at other times; a worker is either a seaman all the time or a seaman none of the time. Because of this challenge, the Supreme Court established the second prong: the substantial connection test. A worker must have a substantial, enduring relationship to the vessel to be a seaman. The substantial connection test has two elements: substantial duration and substantial nature. Chandris focused on the duration element, providing that if a worker spends less than about 30% of his time in the service of the vessel in navigation, the worker cannot qualify as a seaman.
In Papai, the Supreme Court addressed substantial nature, focusing again on the distinction between a land-based worker and a sea-based worker. Primarily, the nature of a worker’s connection to the vessel must concentrate on whether the worker’s duties take him to sea. Discrete employment engagements with a transitory or sporadic connection to the vessel do not qualify a worker for seaman status.
Opinion and Conclusion
Using the new Sanchez seaman test, the Fifth Circuit concluded that Sanchez was not a seaman. For the entirety of his first job working on the jacked-up barge, he was not a seaman, failing the substantial nature element of the seaman test. The second job, where Sanchez was actually injured, failed the duration element of the seaman test. Additionally, the Court ruled that the transient and sporadic nature of the second job fails the nature test.
There are several areas of uncertainty with unanswered questions regarding the newly adopted Fifth Circuit test. Without the first job that Sanchez performed, would the Court have reached the same conclusion using this new test? At what point does a job transition from “transient or sporadic” in nature? What if the employee does not sail with the vessel but otherwise could be a seaman? Even with this new precedent, there remain unanswered questions regarding seaman status. Whether the plaintiff seeks to take the case to the U.S. Supreme Court remains to be seen.