Fifth Circuit Refines The Test For Seaman Status In Jones Act Claims: Will The Ninth Circuit Follow?

• Published date: 24 August 2021
• Subject Matter: Litigation, Mediation & Arbitration, Transport, Marine/ Shipping, Trials & Appeals & Compensation
• Law Firm: Lane Powell
• Author: Michael M. Brown

Whether an injured worker is a seaman entitled to remedies under the Jones Act or a land-based maritime worker generally covered under the Longshore and Harbor Worker's Compensation Act (LHWCA) has vexed courts and practitioners alike since Congress enacted the two Acts in the 1920s. See Scheuring v. Traylor Bros., Inc., 476 F.3d 781, 785 (9th Cir. 2007). Which Act applies has significant implications for the parties involved, as the remedies for the plaintiff and the liabilities for the employer differ significantly. See generally Paul M. Sterbcow, Maritime Rights and Remedies Revisited, 18 Loy. Mar. L. J. 313 (2019). The Fifth Circuit in Sanchez v. Smart Fabricators of Texas, L.L.C., 997 F.3d 564 (5th Cir. 2021) (en banc) is the latest in a long line of courts to attempt to untie this Gordian knot.

Three decades before Sanchez, the U.S. Supreme Court issued a trio of decisions clarifying who qualifies as a seaman and who does not. McDermott Int'l, Inc. v. Wilander, 489 U.S. 337 (1991); Chandris, Inc. v. Latsis, 515 U.S. 347 (1995); Harbor Tug & Barge Co. v. Papai, 520 U.S. 548 (1997). The Fifth Circuit and the Ninth Circuit distilled the holdings in these cases into a two-pronged test for determining seaman status: (1) the employee's duties must contribute to the function of the vessel or to the accomplishment of its mission; and (2) the employee must have a connection to a vessel in navigation that is substantial both in duration and nature. Sanchez, 997 F.3d 564; Keller Foundation/Case Foundation v. Tracy, 696 F.3d 835 (9th Cir. 2012).

In analyzing the "substantial nature" element of the second prong, both the Fifth Circuit and the Ninth Circuit placed significant reliance on whether the employee's work exposed him or her to the "perils of the sea." E.g., Naquin v. Elevating Boats, L.L.C., 744 F.3d 927, 934-935 (5th Cir. 2014), overruled by Sanchez, 997 F.3d 564 (evaluating whether the employee was sufficiently exposed to "perils of the sea" when determining whether the employee satisfied the "substantial nature element of the seaman test's second prong); Scheuring, 476 F.3d at 786-787 (same).

In Sanchez, however, the Fifth Circuit held that its earlier cases placed too much emphasis on the perils-of-the-sea test for determining whether the substantial nature element was satisfied. 997 F.3d at 573-5744. The Fifth Circuit concluded that a careful review of McDermott, Chandris, and Papai compels the conclusion that "[s]imply asking whether the worker...