Case Name: Nigel K. Washington v Blanchard Contractors, Inc.
Date of Judgment: 24th April 2009
Court: U.S.D.C. – S.D. Texas – Houston Division
Judge: District Judge Sim Lake
Citation: 2009 WL 1108922 (S.D.Tex.)
Background: The plaintiff, Nigel K. Washington (“Employee”) worked for defendant, Blanchard Contractors, Inc. (“Employer”) for thirty-seven days. Employee’s work ended when he allegedly suffered an on-the-job back injury.
Employee worked as a rigger, assisting with crane operations. He requested that he be transferred to another job while the crew he worked with took time off. Employer assigned him to the West Bay project, where he was in charge of four vessels.
Weather conditions deteriorated one night and the seas became rough. The vessel the employee was on was hit and began to take in water. The crew decided to abandon the vessel. Employee jumped onto another vessel to retrieve his bag with all his belongings. He went to leap back to the original vessel but at the moment he jumped, the vessels collided. Employee fell backwards into a doorframe.
Employee sued for damages arising from his injury. He alleged unseaworthiness and failure to provide maintenance and cure under the Jones Act and maritime law. Employer moved for summary judgment.
Issue: Whether the Court should grant summary judgment to the employer and dismiss all of the employee’s claims.
The Jones Act provides that a seaman injured in the course of employment may bring suit against the employer. The Court must first determine whether the employee qualified as a seaman. The Supreme Court sets out a two-part test: first, the employee’s duties must contribute to the function of the vessel or to the accomplishment of its mission; and second, the employee must have a connection to a vessel in navigation that is substantial in terms of both its duration and nature.
The purpose of the second prong is to exclude from the Jones Act those land-based workers who only have a transitory or sporadic connection to a vessel in navigation. The Fifth Circuit has adopted a “rule of thumb.” A worker must show that he spends at least thirty percent of his time in service to a vessel to be considered a seaman. Here, the employee clearly cannot show that he worked the required percentage of time necessary to qualify.
The Fifth Circuit has devised a test for those who cannot meet the thirty percent rule. Here, the employee must show that (1) he was removed from his former land-based position and assigned to a sea-based position, (2) the reassignment was permanent, and (3) the new position would involve the plaintiff serving at least thirty percent of his time aboard a vessel. Again, the employee cannot meet these factors. The move was not permanent and he intended to return to land-based work. Thus, the Court held his temporary assignment on the vessel was insufficient to constitute seaman status.
Therefore, the employer’s Motion for Summary Judgment is granted as to the employee’s Jones Act claim, his unseaworthiness claim, and his claim for maintenance and cure.
The Supreme Court has set out a two-part test to determine whether an employee of a vessel owner qualifies as a “seaman.” (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 (or to an identifiable group of vessels) that is substantial in terms of both its duration and nature.
The second prong is the most important. This prong gives both the employer and employee the opportunity to argue their positions.
Also established in the second prong is the category of land-based workers. The Jones Act is only meant to include seamen who are injured in the course of employment. Those who are based on the land as workers will not be included. They can seek damages under the Longshore Harbor Worker’s Compensation Act (“LHWCA”).
Thus, to determine an employee’s status, and whether he qualifies under the Jones Act, the fact-finder should evaluate both the duration and nature of the employee’s connection to the vessel. The ultimate question is whether the employee is a member of the vessel’s crew or simply a land-based employee who happens to be working on the vessel at the time of the accident.