Transportation on Vessel to Offshore Worksite Insufficient for Seaman Status

by Matthew H. Ammerman on February 11th, 2020

Though referred to as a “guideline” for seaman status by the Supreme Court,[1] the thirty-percent rule used to determine the durational element of the substantial-connection prong is, in practice, a bright dividing line in the Fifth Circuit.[2] When a worker in the offshore oil patch spends time divided between land, fixed platforms, and vessels, determination of seaman status turns into a numbers game. Specifically, the issue for the court is often what variables to include in the numerator and divisor to determine whether the thirty-percent threshold is met.

The district court in Lee v. Nacher Corporation[3] grants summary judgment in favor of Nacher Corporation that its offshore oil patch worker, Tom Lee, was not a seaman. Lee worked a total of 387 hours for Nacher. He spent 68% of his time either on land or on a fixed platform. He spent 22% of his employment with Nacher working on a vessel. The remaining time was spent on vessel being transported to a fixed platform (5%) or loading or unloading a vessel at a stationary platform (5%).[4] Therefore, if all of Lee’s time spent on a vessel was included, he would satisfy the thirty-percent guideline with a total of 32%.

However, the district court excluded the time Lee spent being transported on a crew boat to or from a fixed platform as well as his time loading or unloading a vessel at a fixed platform. The court relied on the Fifth Circuit’s opinion in Munguia v. Chevron Company, U.S.A. (Munguia II),[5] to exclude the transport time.[6] The Munguia II court excluded the time that a roustabout spent using a “nautical motor pool” of Joboats, Lafitte skiffs, and Boston whalers to reach the fixed platforms to perform his work.[7] In Munguia II, the Fifth Circuit reasoned that the injured roustabout “had no regular work duties aboard any vessel.”[8] Lee’s time being transported to a fixed platform similarly was not performed in service of a vessel and was, therefore, excluded.[9]

With regard to Lee’s time spent loading or unloading crew boats at fixed platforms, the district court holds that allotted time was devoted to the work on a fixed platform rather than a vessel.[10] Therefore, that time—even though partly aboard a vessel—was not counted toward the durational element of the substantial-connection test.[11]

Therefore, Lee spent at most 22% of his time employed with Nacher on vessels. The court granted summary judgment that Lee was not a seaman as a matter of law.[12] [end].
   [1] Chandris, Inc. v. Latsis, 515 U.S. 347, 371, 115 S. Ct. 2172, 2191 (1995)(“Generally, the Fifth Circuit seems to have identified an appropriate rule of thumb for the ordinary case: A worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act. This figure of course serves as no more than a guideline established by years of experience, and departure from it will certainly be justified in appropriate cases.”).
   [2] Roberts v. Cardinal Services, Inc., et al., 266 F.3d 368, 378 (5th Cir. 2001)(“Accordingly, we see no reason to depart from our well-established rule, as reaffirmed in Hufnagel and St. Romain, that a worker who fails to show that at least 30 percent of his time is spent on vessels under the common ownership or control of his employer is precluded from recovering as a seaman under the Jones Act.”)(internal citations omitted).
   [3] 362 F.Supp. 3d 359 (E.D. La. 2019).
   [4] Id. at 366.
   [5] 768 F.2d 649 (5th Cir. 1985)(Munguia II), cert. denied, 475 U.S. 1050 (1986).
   [6] Id. at 367.
   [7] Munguia II, 768 F.2d at 653-654.
   [8] Munguia II, 768 F.2d 649, 654.
   [9] Lee, 362 F.Supp. 3d at 367.
   [10] Id.
   [11] Id. at n. 49, citing Butcher v. Superior Offshore, 357 Fed. App'x 619, 620 (5th Cir. 2009)("[Plaintiff] worked thirty percent of his time on board the vessel but this included time spent for meals and breaks, which does not make [plaintiff] a seaman."); Hufnagel v. Omega Serv. Ind., Inc., 182 F.3d 340, 344-45 (5th Cir. 1999); Pearson v. Offshore Specialty Fabricators, Inc., No. CIV. A. 91-3350, 1992 U.S. Dist. LEXIS 15246, 1992 WL 300826, at *2-*3 (E.D. La. Oct. 8, 1992)(finding a plaintiff tasked with sandblasting and painting a platform was not a seaman because his time on a vessel attached to the platform did not contribute to the vessel's mission of providing sleeping and eating quarters to people working on the platform).
   [12] Id. at 367-368.

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