By Jeffrey S. Moller
The maritime law community is awaiting the next pronouncement by the U.S. Supreme Court pertaining to the definition of a Jones Act seaman. In February, the high court announced that it would review the decision of the First Circuit Court of Appeals in Stewart v. Dutra Construction Co., Inc. The definition of seaman has proven to be a nagging problem; this will be the fifth time since 1991 that the Justices have tackled some aspect of the question.
Most injured maritime workers would prefer to pursue recovery as a "seaman". There are several reasons for this. First and foremost, the damages recoverable under the Jones Act are not limited to lost wages and benefits, but also include an important component for "pain and suffering". This category of damages, designed to compensate for such intangibles as the loss of life's pleasures and/or the discomfort and inconvenience associated with injury and treatment, can serve to multiply the seaman's recovery. Generally speaking, a maritime worker who does not acquire Jones Act status is relegated to the formulaic and limited benefits of the federal Longshore and Harbor Worker's Compensation Act ("LHWCA"), which awards only medical expenses and a percentage of lost wages. Secondly, the theoretical advantage to the claimant of the compensation scheme set out by the LHWCA, the elimination of any requirement to prove negligence or fault of the employer, is somewhat illusory. While it is true that the Jones Act technically requires a showing that the employer was negligent, the court decisions interpreting the Act have set a very low threshold for this proof. The cases say that a Jones Act seaman need
only prove "slight negligence" on the part of his employer and/or show that the negligence played "any part, however slight" in the bringing about of his injury. Finally and most significantly, a bona fide seaman is entitled to sue for injuries owing to a breach of the "warranty of seaworthiness". The unseaworthiness cause of action is what is referred to as a strict liability remedy. The seaman need only prove that some condition on the vessel was unsafe without having to prove how that condition was created or whether or not the owner or a senior crewman was even aware of its existence. And the damages allowable for a breach of the seaworthiness warranty are at least as great as those attainable under the Jones Act. The Jones Act statute itself contains no definition of "seaman". The definition has been set forth by various court decisions and has evolved from the early rule that required the worker to prove him or herself to be a prototypical sailor, directly involved in the navigation or propulsion operation of the vessel (able to "hand, reef and steer"), to the current law which allows a hairdresser or floral designer on a cruise ship to be entitled to the Jones Act remedy. As the rule is currently expressed, the worker must show that he or she has an employment connection to a vessel (or fleet of vessels) in navigation, which connection is substantial both in terms of duration and nature, and that his/her employment contributes to the work of the vessel.
In the Stewart v. Dutra case now being considered by the Supreme Court, the specific issue is whether or not the dredge to which Mr. Stewart was attached as a crewman was or was not a "vessel in navigation". Mr. Stewart, an engineer, was injured while at work aboard one of the dredge's attendant scows. The First Circuit Court of Appeals had little trouble, based upon its own prior precedent, in affirming the trial court's decision that the dredge was not a vessel in navigation, owing primarily to the fact that the dredge was more a construction vessel than a vessel involved in transporting goods
or passengers. An earlier case in the First Circuit, dealing with a construction crane barge
, had left open the possibility that a crewman from such a vessel could be a Jones Act seaman at certain times, such as when the construction vessel was in actual navigation or transit. The Circuit Court in Stewart partially sealed that loophole, however, by holding that any navigation or transit of the vessel which takes place as part of the primary construction function, such as shifting the dredge from shoal to shoal within the harbor, would not change the basic nature or function of the vessel. The test is really in two parts: (1) is the object or structure a "vessel"; and (2) is it in navigation? To be a vessel, the thing must float and be capable of transporting passengers, cargo or equipment on navigable waters. To be in navigation, the vessel has to be in service. A drilling platform that is fixed to the bottom is not a "vessel". A cruise ship permanently attached to the dock as a floating restaurant is not "in navigation". The Supreme Court usually opts to decide only those cases which present conflicts between the decisions of the several Circuit Courts. This is the situation with the "vessel in navigation" question, the application of which has resulted in different outcomes. With regard to floating work platforms such as dredges and construction barges, the "in navigation" requirement seems to be the source of the present conflict. Some courts require that the injury be shown to have taken place while the vessel was moving on a transportation-related mission, while others have been satisfied if the vessel was simply capable of such a mission.
The forthcoming decision is of interest to various groups, most of whom favor a broad definition. Amicus Curiae ("friends of the court") briefs have been submitted by the American Trial Lawyers Association (i.e., the plaintiffs lawyers), by a seafarers union group, and also by the U.S. Department of Justice - all of which are urging the Court to decide that dredges are vessels in navigation. The U.S. Labor Department, which administers the LHWCA, has always maintained that dredge crewmembers are not longshoremen or harborworkers and is asking the Court to adopt a definition consistent with that past practice. Seemingly alone on the other side of the issue are the marine insurers and P&I Clubs. Jones Act cases are expensive from their point of view given the large and often uncertain jury verdicts and the cost of defense lawyer fees. Although the costs of benefits under the LHWCA would fall to many of those same insurers, the workers compensation process involves lower numbers and greater certainty. The more interesting question is where the interests of the vessel owners or construction companies lies. One might expect that insurance premiums and other costs associated with workforce injuries might be decreased if the LHWCA were deemed to apply. On the other hand, there may exist a fear that with LHWCA coverage would come jurisdiction of the Occupational Safety and Health Administration ("OSHA") and its broad authority to regulate and impose workplace safety standards. OSHA regulations would potentially impose a number of safety related costs which, not being related to a specific injury claim but being prophylactic in nature, could not be handed off to an insurance company.
There has been an on again off again debate for many years with respect to the wisdom of seeking to repeal the Jones Act and bringing seafarers under a workers compensation scheme. Many seagoing countries have such compensation schemes in place for their national seamen and there seems to be little reason why in the present age seagoing workers should be given different treatment from any other type of worker. Indeed, the largest group of civilian mariners in the U.S., those employed by the U.S. Military Sealift Command, are subject to the workers compensation program set up by the Federal Employees Compensation Act. Organized labor and the trial lawyers, whose interests seem always to be tightly conjoined, would certainly oppose a repeal of the Jones Act, which in itself would make for a costly battle in Washington. But one would think that the potential savings for the owners and insurers would make it a fight worth waging. As it is, many if not all owners employ an informal workers compensation scheme. They are already required to pay medical bills by virtue of the maritime law of maintenance and cure, but many go much further than this by voluntarily paying their injured seamen half or three-quarter wages under various disability plans without any showing of fault or blame on the vessel. Many of those seamen eventually sue under the Jones Act anyway. Therefore, if the pencils were sharpened and all the beans were counted, a workers compensation scheme covering all seamen might prove to be economically beneficial to the industry. It certainly would save the Supreme Court the interminable trouble of having to define a "seaman".
Mr. Moller, a partner in the firm of Blank Rome LLP, is a maritime lawyer in Philadelphia..