5th Circuit Unanimously Announces New Test for Jones Act Seaman Status
In a unanimous en banc decision in Sanchez v. Smart Fabricators of Texas, L.L.C., No. 19-20506 (5th Cir. May 11, 2021) (en banc), authored by Judge W. Eugene Davis, the US Court of Appeals for the Fifth Circuit affirmed the district court decision holding that a welder assigned to a jack-up rig was not a seaman within the meaning of the Jones Act. In refashioning the seaman status test, the Fifth Circuit held that additional inquiries must be made to determine whether an offshore worker is a Jones Act seaman. Since the US Supreme Court decided Chandris, Inc. v. Latsis in 1995, courts have used a two-part test to determine whether a particular worker is a Jones Act seaman: (1) whether the employee’s duties “contribute to the function of the vessel or to the accomplishment of its mission” and (2) whether the employee has “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 nature.” 515 U.S. 347 (1995).
The Fifth Circuit has grappled with the Chandris “nature of employment” test over the years in applying it to situations where land-based workers are dispatched to work offshore. Often, workers who are dispatched to vessels do so for periods of time that are indisputably substantial in duration. At issue in Sanchez, however, was whether the employee’s connection to the vessel was substantial in “nature,” not “duration.” In the Fifth Circuit, that question was typically answered by inquiring whether the employee was regularly exposed to the perils of the sea. See Naquin v. Elevating Boats, L.L.C., 744 F.3d 927 (5th Cir. 2014); In re Endeavor Marine, 234 F.3d 287 (5th Cir. 2000). In Sanchez, the Fifth Circuit determined that reliance on whether the worker was exposed to the perils of the sea was misplaced because in Chandris the Supreme Court made clear that both seamen and non-seamen may face perils of the sea. See Chandris, 515 U.S. at 361–62.
In Sanchez, the plaintiff was a land-based welder who was assigned to work on a short-term basis on two different jack-up vessels. While he performed his work, the plaintiff was on vessels that were jacked up and stationary, one of which was positioned next to a dock where Sanchez could take two steps down the gangplank and be ashore.
In Sanchez, the en banc Fifth Circuit held that the plaintiff’s work assignment on the vessels was substantial in duration because he spent approximately 90% of his total employment with the defendant, SmartFab, working aboard the two jack-up vessels.
As for the nature portion of the test, the en banc Fifth Circuit in Sanchez held that Sanchez’s connection was not substantial in nature and he therefore could not avail himself of the Jones Act, relegating Sanchez to the scheme available under the Longshore and Harbor Workers’ Compensation Act. The Fifth Circuit reasoned that Sanchez’s work was a “discrete transient” job akin to the work done by longshoremen when a vessel calls in port. The Fifth Circuit relied on the Supreme Court precedent of Papai to find that workers with only a “transitory or sporadic” connection to a vessel do not qualify for seaman status. See Harbor Tug & Barge Co. v. Papai, 520 U.S. 548 (1997).
The Fifth Circuit devised the following additional inquiries to determine whether a land-based worker who serves a vessel should be considered a Jones Act seaman:
Does the worker owe his allegiance to the vessel, rather than simply to a shoreside employer?
Is the work sea-based or does it involve seagoing activity?
(a) Is the worker’s assignment to a vessel limited to performance of a discrete task after which the worker’s connection to the vessel ends, or (b) Does the worker’s assignment include sailing with the vessel from port to port or location to location?
By expanding on the criteria for what constitutes a substantial connection to a vessel, the en banc Fifth Circuit has added additional layers to the Jones Act seaman test analysis. In light of the en banc Fifth Circuit’s decision, employers should consider the additional layers in the seaman test as they contract for indemnities and insure against various risks associated with the Jones Act status of their employees.
 For additional background on the history of the Sanchez case, please see https://sites-communications.joneswalker.com/29/1570/landing-pages/fifth-circuit-en-banc-consideration-suggested-for-rig-worker-seaman-status---lp.asp.