5th Circuit holds project welder not a seaman

by Matthew H. Ammerman on August 4th, 2015

How do courts classify temporary offshore workers? It depends on their work history.

On July 24, 2015, the U.S. Court of Appeals for the Fifth Circuit held that Joseph Wilcox, a welder employed by welding company Max Welders, failed the seaman status test. While employed by Max Welders, Wilcox worked for 34 different customers on 191 different jobs, both offshore and onshore. He was hurt, however, working on a two-month job assigned to work for Wild Well Control from its derrick barge, the D/B SUPERIOR PERFORMANCE. The barge was used to support well-decommissioning work. On June 5, 2012, gas exploded while Wilcox was welding inside on the well platform. Wild Well conceded Wilcox was its borrowed employee at the time.

To be a seaman, a worker’s duties must (1) contribute to the function of the vessel or to the accomplishment of its mission, and (2) 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. Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995). Wilcox failed the second prong because he lacked a substantial connection to the derrick barge.

The interesting element of the case is that Wilcox argued that his work offshore for Wild Well should be the focus of the status inquiry, rather than his entire employment with Max Welders. This is similar – though not the same – as the re-assignment exception to the 30% rule. That exception provides that if a worker has a permanent change in essential work duties, the focus of his status should be in the new rather than old job. Wilcox, however, was a project-to-project welder whose permanent job duties did not change.

The Fifth Circuit panel rejected Wilcox’s argument and affirmed the trial court’s summary judgment that Wilcox did not satisfy the substantial-connection requirement. The status inquiry could not be limited to two months he expected to work on the Wild Well project. Wilcox v. Wild Well Control, Inc., 2015 U.S. App. LEXIS 12878 (5th Cir. July 24, 2015).



Posted in not categorized    Tagged with jones act, seaman

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