By Matthew Shaffer & Ellen Harberg Shaffer

I. INTRODUCTION

This paper will focus upon causes of action under the Jones Act, the Longshore and Harbor Worker's Compensation Act and the Federal Employer's Liability Act. It is not the intention of this writer to provide an exhaustive review of these causes of action, but rather, this writer strives to provide a general framework and basic overview of Jones Act cases, Longshore and Harbor Workers' Act cases, and Federal Employers' Liability Act cases. More specifically, this paper will address and discuss what constitutes a maritime tort, who is a Jones Act seaman, what is a "vessel" for Jones Act purposes and what damages a Jones Act seaman can recover; who is a longshoreman, what is a third party action under the Longshore and Harbor Workers' Compensation Act; and a general discussion of the Federal Employer's Liability Act.

II. MARITIME TORT

Until less than twenty years ago, admiralty tort jurisdiction existed anytime a tort occurred on or over navigable waters. The Plymouth, 70 U.S. 20 (1866). Rarely were other factors considered necessary to jurisdiction. As commerce became more complex, the maritime situs test began to produce some strange results in marginal cases. It eventually led to an attempt to assert admiralty jurisdiction over an aircrash at the Cleveland, Ohio airport. When that case reached the Supreme Court in Executive Jet Aviation, Inc. v. City of Cleveland, 409 U. S. 249 (1972), the test for applying maritime jurisdiction to torts was significantly changed. In addition to the maritime situs requirement, the court added the requirement of a maritime "nexus." Thereafter, admiralty jurisdiction extended to torts occurring on navigable waters if the activity involved or the wrong done bore a significant relationship to traditional maritime activity.

In the Fifth Circuit case of Kelly v. Smith, 485 F.2d 520 (5th Cir. 1973), the court established four factors to be considered in determining whether a cause of action satisfies the "nexus" test of Executive Jet:

1. The functions and roles of the parties;
2. The type of vehicles and instrumentality's involved;
3. The causation and type of injury; and
4. The traditional concepts of the role of admiralty law.

Although Kelly v. Smith involved an injury to the operator of a small pleasure boat, there remained a question as to the extent to which maritime jurisdiction would apply to cases involving pleasure craft. This doubt was resolved in Foremost Insurance Co. v. Richardson, 457 U.S. 668 (1982), which involved the collision of two pleasure boats on a navigable river in Louisiana. Affirming the application of admiralty jurisdiction, the Supreme Court stated that although the primary focus of admiralty jurisdiction is the protection of maritime commerce, the federal interest in protecting commerce cannot be adequately served if admiralty jurisdiction is restricted to those individuals actually engaging in commercial activity. Thus, although the activity need not be commercial, it must bear a relationship to traditional maritime activity. As such, where pleasure boat accidents involve activities that might impact upon maritime commerce, maritime jurisdiction applies.

In 1990, the Supreme Court again considered the contours of maritime tort jurisdiction. In Sission v. Ruby, 497 U. S. 358, 110 S.Ct. 2892, 111 L.Ed. 2d 292 (1990), the Supreme Court held that jurisdiction under the general maritime law exists if the accident occurred on or in navigable waters and there is a substantial relationship between the activity giving rise to the incident and traditional maritime activity. The relevant activity is determined by focusing on the general conduct or character of the activity from which the incident arose, rather than particular circumstances surrounding the incident. It is noteworthy, however, that the Fifth Circuit continues to determine whether maritime tort jurisdiction exists upon the factors set out in Kelly v. Smith.

III. JONES ACT

A. INTRODUCTION

The Jones Act provides seamen an action for personal injury or death. 46 U.S.C. §688 et seq. The right to enjoy by seamen against their employers under the Jones Act are the same as those enjoyed by railroad employees under the Federal Employers' Liability Act (FELA), 45 U.S.C. §51 et seq. The Jones Act explicitly incorporates the FELA. See 46 U.S.C. § 688.

B. WHO IS A SEAMAN?

The Fifth Circuit established a test for seaman status in Offshore Co., v. Robison, 266 F.2d (5th Cir. 1959). Under Robison, seaman status could be achieved:

1. If there is evidence that the injured workman was assigned permanently to a vessel (including special purposes structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on a vessel; and
2. If the capacity in which he was employed or the duties which he performed contributed to the function of the vessel, the accomplishment of its mission, or the operation or welfare of the vessel in terms of its maintenance during its movement or anchorage for its future trip. Offshore Co. v. Robison, 266 F.2d @ 779.

Thus, under the Robison test, crew members who were regularly assigned to a special purpose vessel came to enjoy seaman status as a matter of law, whether or not they had anything to do with the transportation function of that vessel. Colomb v. Texaco, Inc., 736 F.2d 218 (5th Cir. 1984); McDermott Inc. v. Boudreaux, 679 F. 2d 452 (5th Cir. 1982); Marine Drilling Co., v. Austin, 363 F.2d 579 (5th Cir. 1966); Producers Drilling Co., v. Gray, 361 F.2d 432 (5th Cir. 1966).

Robison was the settled state of the law in the Fifth Circuit until the mid 1980's when the court began to have an increasingly narrow view of seaman status. In 1986, the Fifth Circuit revisited Robison en banc, and a divided court decided to significantly modify Robison by holding that the permanency requirement in the seaman status test had to be judged in the context of the plaintiff's various work sites during the entirely of his employment with that employer, rather than only during the work period when the casualty occurred. Barrett v. Chevron, U.S.A., 781 F.2d 1067 (5th Cir. 1986). Additionally, the Fifth Circuit in Barrett also tightened requirements for achieving seaman status via multi-vessel affiliation by demanding all such vessels had to be operated together or under common ownership or control.

In 1987, the Fifth Circuit denied seaman status to shore based claimants who performed tasks specifically enumerated in the Longshore Act, such as ship repairers. Pizzitolo v. Electro/Coal Transfer Corp., 812 F.2d 977 (5th Cir. 1987). Recently, however, the Supreme Court in Gizoni v. southwest Marine, Inc., 1125 S.Ct. 486 (1991), determined that employees who are in occupations specifically covered by the Longshore Act are nonetheless entitled to a jury trial to determine their status as Jones Act seamen.

In 1989, the fifth Circuit had occasion to decide Wilander v. McDermott International, Inc., 887 F2d 88 (5th Cir. 1989). In a unanimous opinion, the court expressly rejected McDermott's invitation to add a requirement to the seaman status test that the claimant must be aboard the vessel primarily to aid in navigation. In Wilander, the court affirmed the jury's determination of seaman status based on the Robison test. Wilander involved an American seaman who went to work for McDermott International in the Persian Gulf as a painter-sandblaster foreman. Once overseas, Wilander was assigned to the Derrick Barge Nine, which served as a "mother ship" for all operations conducted by McDermott in the Gulf and provided quarters for all crews in the area. Mr. Wilander was in charge of sandblasting and painting the many small stationary platforms operated by McDermott in the Gulf. To accomplish this mission, he was given the use of a paint boat, the M/V Gates Tide. Wilander was injured on one of these small platforms when a high pressure line exploded. The jury found Mr. Wilander was a seaman. By way of the Fifth Circuit, the case went up to the Supreme Court. The Supreme Court, in deciding Wilander, concluded that since the Jones Act was passed in direct response to the ruling of the Supreme Court in the Osceola, 189 U.S. 158 (1903) which denied a tort remedy to seamen, Congress had adopted the definition of that term in use a the time the Osceola was rendered. Having examined this jurisprudence, the Supreme Court determined that, at the time of the passage of the Jones Act, there was not requirement that a seaman aid in navigation.

C. WHAT IS A VESSEL?

The United States Supreme Court has provided little guidance regarding the definition of a vessel for purposes of the Jones Act. While many "Jones Act'" cases and "member of the crew" cases have reached the Supreme Court, the status of the structure was rarely the court's central focus in reaching its conclusion. A few Supreme Court cases have, however, provided an analysis for vessel determination. See In Re: Robert W. Parsons, 191 U.S. 17 (1903) (wherein curt stated "neither size, form, equipment nor means of propulsion are determinative factors); Evansville & Bowling Green Packet Co. v. Chero Cola Bottling Co., 271 U. S. 19 (1926) (denying vessel status, the court focused on the purpose of the structure to serve as an office, warehouse and wharf. Court recognized that the structure was not capable of being used as a means of transportation upon water); Gianfala v. The Texas Company, 350 U.S. 879 (1955); Butler v. Whiteman, 356 U.S. 271 (1958); Roper v. United States, 368 U.S. 20 (1961).

With regard to oilfield special purpose vessels, the fifth Circuit has on many occasions determined whether vessel status exists. In Offshore Co. v. Robison, supra, the Fifth Circuit held that jackup drilling barges resting on the ocean floor remain a vessel. In Boatel Inc. v. Delamore, 379 F.2d 850 (5th Cir. 1967), a drilling tender moored in one place is excess of a year as a support facility for a fixed stationary platform was added to the list of special purpose structures that are classified as vessels. In Parks v. Dow Div. Of Dow Chemical Corp., 712 F.2d 154 (5th Cir. 1983) the plaintiff was a company man for an offshore drilling operation being performed upon a fixed platform, but serviced by a drilling tender. The defendant argued that the tender had become an appurtenance of the fixed platform and thus was no longer in navigation. The court rejected these arguments and affirmed its ruling that a drilling tender is a vessel in navigation. Additionally, in Columb v. Texaco Inc. 736 F.2d 218 (5th Cir. 1984), the court stuck to its line of cases classifying mobile drilling structures as vessels. However, barges which are immobile for extended periods of time are not vessels.

Special purpose floating structures are typically not considered to be vessels. In Hemba v. Freeport McMoran Energy Partners Ltd., 811 F.2d 276 (5th Cir. 1987) the court determined that a rig which was attached to the bottom of the ocean by pilings driven two hundred feet into the sea bed and which had been moved only twice in a twenty year period prior to plaintiff's injury was not a vessel. The rig had no navigation lights or lifesaving gear nor did it maintain its registration with the Coast Guard as a vessel. Additionally, there were no crews quarters or no galley area upon the rig. In Gremillion v. Gulf Coast Catering Co., 904 F.2d 290 (5th Cir. 1990) the court determined the vessel status of a quarter boat barge. The barge was equipped with living quarters and equipment utilized to service offshore oilfield activities. The barge had been brought to a shore side location approximately six months prior to the plaintiff's injury, spudded down on the seaside, and moored to the bank. The structure was determined to be a non/vessel. The Fifth Circuit emphasized that the analysis must focus upon the purpose for which the craft is constructed and the business in which it is engaged. As the vessel did not transport cargo or passengers, was not designed for navigation, nor was it in navigation of the time of the injury, the court determined it was not a vessel.

With respect to dry docks and construction platforms, the law is less clear. In Ducrepont v. Baton Rouge Marine Enterprises Inc., 877 F.2d 393 (5th Cir. 1989), the structure in question was a cargo barge that had been converted to a stationary work platform from which repairing and cleaning operations were performed. The barge remained permanently moored to the shores by wires except when it had to be tugged short distances due to the level of the water. Emphasizing the work platform status of the structure in question, the court concluded that it was not a vessel. The fact that the structure was originally a navigable barge was of no moment, since any transportation plat formed in its current status was totally incidental to its primary purpose of serving as a work platform. In Hurst v. Pilings & Structures, Inc., 896 F.2d 504 (11th Cir. 1990) the barge in question was a 120 foot spud barge used in connection with the construction of a seawall in Ft. Lauderdale. The barge had only been moved from this location one time for approximately five days during the six month period prior to the plaintiff's injury. It was undisputed that the barge was constructed for the purpose of serving as a work platform. In recognizing that the primary purpose of the barge was to serve as a work platform, the court determined it was not a vessel. In Davis & Sons Inc. v. Gulf Oil Corp., 919 F.2d 313 (5th Cir. 1990) the Fifth Circuit concluded that a spud barge used as a work platform was a vessel. The spud barge had its own motor power and traveled from one job to another within the field in which it worked on almost a daily basis. The barge was considered a special purpose vessel whose transportation function was more than merely incidental to its primary purpose as a work platform. The court recognized that the vessel was in effect a mobile maintenance unit and was both designed for and used as a mode of transportation on navigable waters.

With respect to vessels under repair or in storage, Wagonner v. Sealand Service, Inc., 486 F.2d 955 (5th Cir. 1973) provides a detailed consideration of the criteria for when a vessel has been taken out of navigation as a matter of law. The focus is upon the extent of repair operations and on who controls those operations. A vessel which temporarily leaves commerce, enters a shipyard for minor repairs, and thereupon returns to commerce, remains in navigation.

With respect to new vessels under construction, in Richendollar v. Diamond M. Drilling Co. Inc., 819 F.2d 124 (5th Cir. 1987), the Fifth Circuit determined that in order for a water born structure to qualify as a "vessel" it must be a vessel for purposes of maritime jurisdiction. The structure in question was a jackup drilling rig. It was eighty-five percent complete at the time of plaintiff's accident but could not yet float on water. In concluding this structure was not a vessel for purposes of admiralty jurisdiction, the court expressly overruled a number of its prior panel decisions. In Rosetti v. Avondale Shipyards Inc., 821 F.2d 1083 (5th Cir. 1987) the vessel was an unfinished structure that had already been placed in the water at the time of the plaintiff's injury. The court concluded that the majority of the navigation equipment had not yet been installed, dock trials and sea trials had not taken plane and no crew had been assigned to the vessel. Quoting Richendollar, the court concluded that in order for a structure to be a vessel, it must be capable of navigation or its special purpose use on or in the water.

D. DAMAGES

Under the Jones Act, the plaintiff is entitled to recover only pecuniary damages. Pecuniary refers to a material loss that can be assigned a value, not that to which it is impossible to apply evaluation such as a loss of society or loss of consortium. Additionally, under the Jones Act, a plaintiff is entitled to receive maintenance and cure. Maintenance and cure gives to the seaman, ill or injured in the service of the ship without willful misbehavior on his part, wages to the end of the voyage and sustenance, lodging and care to the point where the maximum cure attainable has been reached.

IV. LONGSHORE AND HARBOR WORKERS' COMPENSATION ACT

A. COVERAGE

The Longshore & Harbor Workers' Compensation Act provides for the payment of compensation benefits for disability or death of an employee coming under it, if the disability or death results from an injury occurring upon the navigable waters of the United States. An adjoining pier, wharf, dry dock, terminal, building way, marine railway or other adjoining area customarily used by an employer in loading, unloading, repairing or building a vessel is included in the "navigable waters" category. Thus, maritime workers whose cargo activities in connection with the vessel carry them to dockside at the time of injury are covered under the 1972 amendments to the Act. Exceptions to coverage are:

1. A master or member of a crew of any vessel (this eliminates all seamen or members of the ship's company who have their Jones Act remedy for recovery);
2. Any person engaged by the master to load or unload or repair any small vessel under eighteen tons;
3. An officer or employee of the United States or any agency thereof or of any state or foreign government, or of any political subdivision thereof;
4. No compensation is payable if the injury was occasioned solely by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or another.

By amendment of September 28, 1984, where a person is employed in ship building, repairing or breaking services and his employer is the owner, owner pro hac vice, agent, operator, or charterer of the vessel, the injured person has no right of action for tort against his employer. His exclusive remedy is under the Longshore and Harbor Workers' Compensation Act.

In 1984, the term "employee" was redefined as "any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor worker including a ship repairman, ship builder and ship breaker but such term does not include:

1. Individuals employed exclusively to perform office, clerical, secretarial, security or data processing work;
2. Individuals employed by a club, camp, recreational operation, restaurant, museum or retail outlet;
3. Individuals employed by a marina and who are not engaged in construction, replacement, or expansion of such marina;
4. Aqua culture workers;
5. Individuals employed to build, repair or dismantle any recreational vessel under sixty-five feet in length;
6. A master or member of a crew of any vessel;
7. Any person engaged by a master to load or unload or repair any small vessel under eighteen tons.

In Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249, 97 S.Ct. 2348, 53 L.Ed. 2d 320 (1977), the Supreme Court clarified the extent of coverage of the 1972 amendments with relation to the area and work activities encompassed by the LHWCA. This case involved two workers, one a checker and the other a terminal laborer. Pursuant to the 1972 amendments to the LHWCA, situs under the Act includes navigable waters and adjoining pier, wharf, dry dock, terminal, building way, marine railway or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel. In addition to situs, the status of workers covered under the Act encompassed those "engaged in maritime employment" which included "any longshoreman or other person engaged in longshoring operations and any harbor worker including a ship repairman, ship builder, or ship breaker". The plaintiffs in Caputo were held to come within the coverage of the LHWCA, both with regard to situs and status.

B. 905 b

There are basically three criteria which must be met in order for the plaintiff to recover on a claim under §905 b of the LHWCA:

• The plaintiff must be a person covered by the LHWCA;
• The plaintiff must have suffered an injury on or in connection with a vessel'
• The injury must be caused by the negligence of the vessel, its owner, operator, charterer, agent or crew member.

Under the dual capacity doctrine, a person covered by the LHWCA can bring an action against a vessel under §905 b even if his employer, who was answerable in compensation benefits, owed the vessel, provided the worker was injured by "vessel" as opposed to "employer." Jones and Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 103 S.Ct. 2554, 76 L.Ed. 2d 768 (1983); Smith v. M/V Captain Fred, 546 F.2d 119 (5th Cir. 1977); Eagle Picher Industries Inc. v. U.S., 846 F.2d 888 (3rd Cir. 1988). Note that in 1984 Congress amended xx905 b to eliminate the negligence actin against the injured person's employer for the negligence of a vessel, even if the employer was the owner, operator or charterer of the vessel if the injured person was employed "to provide ship building, ship repairing, or ship breaking services". In Gay v. Barge 266, 915 f.2d 1007 (5th Cir. 1990) the court held that in order to classify as an employee for purposes of determining whether a claim under §905 b is barred, an analysis of the employee's overall duties or assignments for a significant time interval must be undertaken to determine whether the employee's permanent duties or interim duties over an appreciable period of time are such that the employee would be a covered ship builder, ship repairer or ship breaker within the meaning of §902 (3).

In Scindia Steam Navigation Co. v. de los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed. 2d 1 (1981) the court explained the general duties owed a ship owner to maritime workers:

1. The ship owner must exercise ordinary care under the circumstances to have the ship and its equipment in such condition that an expert and experience stevedors will be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety;
   
2. The ship owner must warn the stevedore of any hidden dangers on the ship, or with its equipment, of which the ship owner is or should be aware in the exercise of reasonable care, that would likely be encountered by the stevedore, that are not known by the stevedore and that would not be obvious to or anticipated by him if reasonably competent in the performance of his work;
3. Once stevedoring operations have begun, the ship owner is entitled to rely on the stevedore and generally owes no duty to inspect or supervise the cargo operations or discover dangerous conditions that develop. However, if the ship owner learns that a hazardous condition exists and the stevedore will not or cannot correct the danger and the longshoreman cannot avoid it, the ship owner has a duty to intervene in the operations to eliminate or neutralize the hazard. Further, the vessel has a continuing duty to exercise reasonable care with regard to the condition of the vessel if the owner actively participates in the operations, maintains control over the area, or such a duty is imposed by a contract, law, or custom.

What emerged from the Scindia decision was the basic principle that responsibility for the safety of the longshoreman primarily rests upon the stevedore, and the majority of litigation following the Scindia decision deals with injuries that occurred after stevedoring operations had begun. Under these circumstances, there are basically three basis of liability:

1. The failure to warn of hidden defects;
2. Injuries caused by the failure to intervene in the stevedoring operations; and
3. Injuries that are caused while the vessel is still under the control of the vessel owner or charterer. See Helaire v. Mobil Oil co., 709 F.2d 1031 (5th Cir. 1983).

With respect to the duty to warn, attention has been placed upon the effect of an open and obvious condition. What appears to have emerged from the case law is the rule that an obvious condition may not give rise to a duty on the part of a ship owner to warn the maritime worker of the condition; whoever, it may constitute a breach of the duty to provide a reasonably safe ship and equipment to the stevedore to conduct its operations particularly if the hazard is under the control of the ship. See Treadaway v. Societe Anonyme Lewis/Dreyfus, 894 F.2d 161 (5th Cir. 1990); Myers v. M/V Eugenio C., 919 F.2d 1070 (5th Cir. 1990); Martinez v. Korea Shipping Corp. Ltd., 903 F.2d 606 (9th Cir. 1990); Massinter v. Tenneco Oil Co., 867 F.2d 892 (5th Cir. 1989).

With respect to liability for injuries caused by the failure of a vessel owner to intervene in the stevedoring operations, the Fifth Circuit in Randolph v. Laeisz, 896 F.2d 964 (5th Cir. 1990) held a vessel only has a duty to intervene if it has actual knowledge that a condition poses an unreasonable risk of harm; actual knowledge that it cannot rely on the stevedore to protect its employees; and that if the condition is un-remedied, it poses a substantial risk of injury. In drawing a distinction between knowledge of the condition and knowledge of the dangerousness of the condition, the court held knowledge of the condition in and of itself did not render the failure to intervene negligent. Consequently, before the duty to intervene arises, plaintiff must demonstrate the ship owner has actual knowledge of the condition that poses an unreasonable risk of harm to the longshoreman and of actions by the stevedore that are obviously improvident under the circumstances.

With respect to injuries that are caused while the vessel is still under the control of the vessel owner or charterer, courts have held that the charterer is not liable under §905 b for the negligence of the vessel unless the cause of the harm is within the charterer's traditional spear of control and responsibility, or has been transferred thereto by the clear language of the charter agreement. Kerr McGee v. Ma/Ju Marine Services, 830 F.2d 1332 (5th Cir. 1987); Zepherine v. Conoco Oil Co., 884 F.2d 212 (5th Cir. 1989).

V. FEDERAL EMPLOYERS' LIABILITY ACT

Very brief mention will be made of the Federal Employer's Liability Act, 45 U.S.C. §51 et seq. The Federal Employers Liability Act provides that common carriers by railroad, while engaging in interstate commerce, shall be liable to employees engaged in such commerce, or their personal representatives, for injury or death resulting in whole or in part from the negligence of other employees, officers or agents of the employer, or by reason of defects or insufficiencies in appliances or equipment. It abolished the fellow servant rule and restricts the application of doctrines of contributory negligence and assumption of the risks.

The provisions of the Federal Employers' Liability Act are fully incorporated by the Jones Act, 46 U.S.C. §688 thereby making remedies available to railroad employees also available to Jones Act seamen. A detailed analysis of the FELA is beyond the scope of this paper.