A new case out of the Fifth Circuit addresses seaman status for a welder. The welder was employed by a contract company. During his employment with the contractor, the welder worked “on various rigs, barges, and vessels” owned by the contractor’s clients. But, “he spent less than thirty percent of his time in service of any one vessel or group of vessels.”
One day, the welder went to work on a barge, the D/B SUPERIOR PERFORMANCE, and he was injured in a gas explosion while welding inside a well platform. At the time of the accident, the welder was working a job that was scheduled to last two months.
An important issue in the welder’s case was whether he was a “seaman.” The Supreme Court has articulated a two-prong test to determine seaman status under the Jones Act:
- An employee’s duties must contribute to the function of the vessel or to the accomplishment of its mission, and
- 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.
For the welder’s case, the issue was the “substantial-connection” prong of the test. He split time between land-based work and vessel-based work. Plus, he worked as a borrowed employee. As such, his status as a seaman had to be determined in the context of his entire employment. If a worker spent less than 30% of his work aboard a ship, he is most likely not a seaman.
But there is an exception when an employee is reassigned. If the employee “receives a new work assignment before his accident in which either the essential duties of his work location is permanently changed, he is entitled to have the assessment of the substantiality of his vessel-related work made on the basis of his activities in his new job.”
The Fifth Circuit determined that the welder was not a Jones Act seaman. There was no evidence in the record to support application of the reassignment exception; nor had his primary duties changed. And while the welder was a “borrowed employee,” he still was not a seaman when looking at his entire employment period and not just his employment with the borrowing employer.
Finally, the Fifth Circuit issued these parting words to indicate the fact-specific nature of this seaman status inquiry:
We do not here adopt a bright-line rule that courts performing the seaman-status inquiry must always look to an employee’s entire employment with his nominal employer rather than his borrowing employer. Nevertheless, we also decline to adopt a rule that borrowed-employee status automatically requires courts look only to his period of employment with the borrowing employer.
Wilcox v. Wild Well Control, Inc., — F.3d —-, 2015 WL 4727328 (5th Cir. 2015). Note: the opinion was issued on July 24, 2015, and then amended on August 11, 2015.
Photo courtesy of Flickr user Savannah River Site.
