When is a Rig Worker a Seaman Under the Law?

Historically, the Jones Act provides remedies to “seamen,” those workers more or less permanently assigned to vessels and who assist in their mission. The Longshore and Harbor Workers’ Compensation Act (LHWCA) provides a general maritime law remedy to “maritime workers injured while working on a vessel or upon navigable waters.”

 

The distinction between remedies available to these workers injured on vessels is blurred in the exploration for and production of offshore energy where special purpose vessels are used, such as mobile offshore drilling units, jack-up rigs, tension leg platforms (TLPs), spars, and various floating production facilities (FPSOs). For the most part, exploration and production operations are performed while these  structures are stationary, so their workers are not subject to the traditional perils of the sea.

 

The complex Rubik’s cube of “status” for offshore workers assigned to jack-up rigs was considered by the Fifth Circuit in Sanchez v. Smart Fabricators of Texas, LLC, in March 2020. In that case, a welder assigned to a stationary jack-up rig was found not to be a seaman for Jones Act purposes.

 

In April 2020, a mandate was issued by the Fifth Circuit withdrawing that panel’s opinion, and an oral argument has been scheduled. Its fate is uncertain, but the Sanchez decision highlights the complexity of status issues involving offshore workers.

 

Offshore vessel or offshore platform?

 

A “vessel” is broadly defined in 1 USCA §3 as anything capable of transportation. However, our courts do not broadly accept that definition for purposes of determining vessel status. In Stewart v. Dutra Constr. Co., 125 S. Ct. 1118 (2005), the Supreme Court held that a dredge that had limited propulsion and was temporarily stationary was a vessel for purposes of the Jones Act because it was practically capable of marine transportation.

 

However, in Lozman v. City of Riviera Beach, 133 S. Ct. 735 (2013), the Supreme Court held that a houseboat capable of being towed was not a vessel for purposes of a maritime lien because it was not designed to engage in maritime transportation. Simply put, not everything that floats is a vessel for all purposes.

 

The status of offshore exploration and production structures that float and/or move locations has been considered by the Fifth Circuit for more than half a century. In Texas Co. v. Gianfala, 222 F.2d 382 (5th Cir. 1955), reversed 76 S.Ct. 141, the Supreme Court reversed the Fifth Circuit and affirmed a jury verdict which held that an inland drilling barge, capable of being moved but stationary during drilling, was a vessel and its workers were seamen. The Fifth Circuit had reversed the jury verdict and denied status after considering arguments as to whether workers with different functions assigned to the barge should be considered part of either the “drilling crew” or the “vessel crew”.

 

The Supreme Court disagreed, and special purpose drilling vessels have since become Jones Act vessels as a matter of law. However, in a series of cases from the 1990s to the present, the Fifth Circuit has held that floating production platforms or TLPs, SPARs, and FPSOs are not vessels for status purposes as a matter of law and fact. These Fifth Circuit decisions appear to be in line with the Supreme Court’s Lozman analysis.

 

In the offshore energy environment, not everything that floats is a vessel, and not every facility that is designed to perform while stationary, but that is capable of being moved, is a platform. A jack-up rig on location is considered a vessel, but a floating TLP or SPAR is not. Should the status of a jack-up rig as a Jones Act vessel be reconsidered in light of Lozman?

 

There is precedent for asking this question. In Bernard v. Bunnings Constr. Co., Inc., 741 F.2d 824 (5th Cir. 1984), subsequently cited in Lozman, a worker was injured on a work punt engaged in driving pilings in a canal. The Fifth Circuit asked both “what constitutes a vessel” for Jones Act purposes and whether vessel status should be “decided as a matter of law.” That panel denied Jones Act vessel status to the work punt whose “function” was “that of a tool, not a vessel.”

 

Offshore workers’ complex status

 

In a series of Supreme Court decisions, referred to as Wilander, Latsis, and Papai, the Supreme Court has held that to be considered a Jones Act seaman, a worker must aid in the navigation of a vessel or contribute to the mission of a vessel and have a connection to an identifiable group of vessels that is substantial in terms of both duration and nature.

 

The Jones Act was enacted in 1920, before the advent of offshore exploration, to protect seamen from the “perils of the sea.” In Lozman, the Supreme Court, following Latsis, stated that “liability statutes such as the Jones Act” recognized that sailors face “special perils of the sea.” However, the “perils” of offshore workers are not always sailor related and have spurred many fact-specific decisions. To account for injuries to non-seamen injured in the offshore environment, the LHWCA in 1953 extended coverage to offshore workers under the OCSLA, 33 USCA §1331, et seq.

 

The current Fifth Circuit two-step test to determine seaman status for oilfield workers injured on navigable waters was formulated in Offshore Co. v. Robison, 266 F.2d 769 (5th Cir. 1959), more than 50 years ago. It required (1) permanent assignment to a vessel and (2) performance of duties which contributed to the function or mission of a vessel. The Fifth Circuit, in Robison, affirmed a jury verdict, finding seaman status for an offshore worker injured on a stationary jack-up rig. The Robison panel reviewed in detail the Gianfala decision and weighed the role of a court versus a jury in determining status issues.

 

However, in 1984, the Fifth Circuit, in Colomb v. Texaco, 736 F.2d 218 (5th Cir. 1984), reversed a jury’s verdict which held that a roughneck injured on a stationary inland drilling barge (like in Gianfala) was not a seaman. Even though Mr. Colomb did not aid in the navigation of the inland drilling barge, the Fifth Circuit found seaman status. That panel held that the stationary inland drilling barge was a vessel and Mr. Colomb’s status was a question of law since his work contributed to the overall mission of the semi-submersible inland drilling barge.

 

The Fifth Circuit, post Robison, has also largely ignored its 1953 decision in McKie v. Diamond Marine Co, 204 F.2d 132 (5th Cir. 1953), which introduced a three-part test in order to determine Jones Act status for offshore workers and was also cited in Gianfala. In McKie, the Fifth Circuit panel emphasized that the three “decisive” elements in the definition of a member of a crew as a seaman included (1) that the vessel be in navigation; (2) that there be a more or less permanent connection with the vessel; and (3) that the worker be aboard primarily to aid in navigation. Over the decades, Fifth Circuit panels have glossed over the vessel-in-navigation and aid-in-navigation requirements, which expose maritime workers to the perils of the sea as intended by the Jones Act.

 

Recently in Sanchez, a Fifth Circuit panel again twisted the Rubik’s cube status face by rejecting a purely mechanical Robison approach to determining Jones Act status and focused on the original purpose of the Jones Act legislation to protect seamen involved in the navigation of vessels and the perils attendant thereto. Although not cited by the Sanchez panel, the panel’s philosophy and interpretation of the Jones Act was similar to the 1953 McKie rationale and arguably in accord with Lozman.

 

Is Sanchez a seaman?

 

In Sanchez v. Smart Fabricators of Texas., an offshore welder tripped on a pipe located on a stationary jacked-up drilling rig. He sued his employer, Smart Fabricators, who was not the rig owner. Smart Fabricators removed the litigation to federal court and sought summary judgment on Jones Act status. The district court in Texas denied seaman status and opined that the Jones Act was enacted to address the unique dangers of “ocean-faring work.” Accordingly, the key issue was whether Sanchez “faces regular exposure to the sea.”

 

The Sanchez Fifth Circuit panel reviewed the Supreme Court rationale in Papai and Latsis to focus on Mr. Sanchez’s “connection to a vessel in navigation that is substantial in terms of both its duration and its nature.” This approach involved asking whether an employee’s duties took him to sea and exposed him to the perils of a maritime work environment. As a welder injured on a stationary rig, Sanchez’s duties and type of accident were not those perils contemplated by the Jones Act. The panel’s withdrawn decision attempted to harmonize the realities of offshore workers who are neither assisting in navigation nor being transported.

 

Although McKie and Gianfala are not cited, the tenor of Sanchez’s reasoning is akin to that of McKie and the Fifth Circuit’s analysis in Gianfala, whose rationale focused on injuries to employees/sailors working on a vessel in navigation and rejected a purely mechanical approach. Mr. Sanchez was arguably not exposed to the perils of the sea or the navigation of a vessel any more than any welder on a TLP or SPAR. His Jones Act status was denied but is presently being reconsidered.

 

An opportunity to align status

 

The withdrawing of the Sanchez opinion in April 2020 is unusual. However, oral argument is scheduled for August 2020. Will the court follow a mechanical approach to determining seaman’s status or further explore the intent of the Jones Act in the Rubik’s cube environment of offshore energy exploration and production? How does the rationale of McKie, Gianfala, and Robison align with Lozman in the offshore worker context? Is that analysis the “rubric” upon which Sanchez should be reconsidered? It has been more than 50 years since Judge Wisdom asked in Robison, “When is a roughneck a seaman?” The status issue is being revisited by the Fifth Circuit in Sanchez and should include a review of the Jones Act legislation enacted in 1920 before the advent of offshore drilling, the unique perils encountered by offshore workers and the current trend of the Supreme Court reflected in Lozman. 

 

Grady Hurley is a partner in and leader of the maritime litigation and arbitration team and co-chair of the Energy, Environmental & Natural Resources Industry Team at law firm Jones Walker. Since 1979, he has focused on maritime, oilfield, and energy litigation.