An Exception to the Divers' Exception?

Divers' Rights under the Jones Act Continue to Depend on Jurisdiction

By James P. Nader & Rudolph F. Lehrer

An occupational study estimates that the number of commercial diving positions nationwide will grow to an anticipated total of 5,000 positions over the next decade. For the uninitiated, the focus of these commercial divers spans the gamut from extensive inspection of hulls and pipelines to the construction and repair of underwater structures to the demolition and removal of underwater obstacles, and onwards to the search and rescue of people and missing objects. While the commercial diving industry is certainly diverse, every diver shares a certain level of risk of injury when entering the water. Therefore, it is no surprise that commercial divers are meticulous in taking the necessary precautions when descending into the water, as well as, monitoring any changes in the conditions while working underwater.

Understandably, commercial divers are encouraged to maintain an equal level of precision and attentiveness when exiting the water. Needless to say, these same skills should be employed by commercial divers, particularly when it involves being aware of a diver's legal rights in the context of a work-related injury. This past summer in, "Diver Down!", we addressed the emergence in Louisiana law of the divers' exception to the general requirements for qualifying for "seaman status" for Jones Act lawsuits. In this article, the authors will review the federal courts' response to the emergence of this state law exception, as well as, other jurisdictional approaches to analyzing divers' rights under the Jones Act.

Any analysis of a maritime worker's work-related injury starts with determining whether the injured worker will seek redress for his or her injuries under either of two mutually exclusive federal laws: the Longshore and Harbor Workers' Compensation Act ("LHWCA") or the 1920 Merchant Marine Act, better known as the "Jones Act". As a number of legal commentators have noted, there are several fundamental differences between these federal laws. Under the LHWCA, an injured employee is barred from filing suit against his employer and instead applies through the administrative courts for compensation for his injuries. The LHWCA primarily addresses injuries sustained by land-based maritime workers. On the other hand, the Jones Act permits lawsuits against the maritime employer, but requires the injured maritime employee to prove he or she qualifies for "seaman status" under the Jones Act. While the LHWCA provides for set compensation rates, under the Jones Act, an employee may pursue a lawsuit for yet to be determined monetary damages. As some commentators have noted, since monetary awards under the Jones Act tend to be substantially greater than the allowable compensation under the LHWCA, some injured maritime workers view lawsuits filed under the Jones Act as the preferable means by which to seek recovery for their injuries.

The Jones Act explicitly grants the right to a maritime employee to file a lawsuit against his or her employer, if that employee is a "seaman" who sustains personal injuries during the course of employment. Although this seems straightforward, many federal courts have taken note that the Jones Act does not explain who exactly is a "seaman" for purposes of filing suit. Exactly ten years ago, in the case of Chandris v. Latsis, the U.S. Supreme Court sought to clarify the requirements for determining when a maritime worker is a "seaman" under the Jones Act. Under the law as articulated by the U.S. Supreme Court, in order to find for "seaman status" lower courts must look to a two-prong test of determining: (1) whether the duties of the maritime worker contribute to the function of the vessel or the accomplishment of the mission; and (2) whether the duties of the maritime worker have a "substantial connection" both in duration and in nature to the "vessel in navigation". Since the U.S. Supreme Court's decision in Chandris, many lower courts have had an opportunity to apply the Chandris factors to a wide-range of maritime employees pursuing Jones Act lawsuits. Among these lower courts, the consensus appears to be that nearly any maritime worker can easily satisfy the first prong of the Chandris test. However, courts encounter regular difficulty with the second prong of determining when exactly an individual has proven his "substantial connection" to the vessel. The U.S. Supreme Court has held that a maritime employee who works at least 30% of his time aboard vessels in all likelihood has shown a "substantial connection" to the vessel. Although this "30-percent" rule was intended to streamline courts' analysis of seaman status, lower courts have taken further steps in articulating the requirements for seaman status. The most notable step has been taken by the Louisiana Supreme Court, which in 1999, in Wisner v. Professional Divers of New Orleans, held that the nature of the maritime employee's work should govern his seaman status, without regard to the percentage or duration of time spent aboard the vessels. Considering the inherent risks faced by all commercial divers, the Louisiana Supreme Court held that it was warranted to focus entirely on the nature of the diver's work without considering the duration of this work experience aboard vessels. Not long after the Louisiana Supreme Court's ruling in Wisner, a Louisiana appellate court embraced the Wisner's Court's creation of the "divers' exception". In Wood v. Subsea International, the Louisiana Fourth Circuit Court of Appeals held that a diver's tender who injured his back while working from an oil platform in the Gulf of Mexico qualified as a "seaman" for purposes of the Jones Act. Not surprisingly then, the Louisiana Supreme Court's attempt to carve out a "divers' exception" to the Jones Act has drawn some criticism from the federal courts. In Landry v. Specialty Diving of Louisiana, a federal court sitting in the Eastern District of Louisiana, addressed the scope of the "divers' exception". This federal court's ruling suggested that there is an "exception" to the divers' exception. The Landry court held that a diver, who spent more than 50% of his work time on board different vessels, did not qualify as a "seaman" under the Jones Act. The court reasoned that this evidence did not show that the plaintiff-diver was exposed to the "traditional perils of the sea", and therefore did not fall within the divers' exception. In addition to the divergence of approaches between the federal and state courts in Louisiana, other courts have also taken their independent approach when deciding the seaman status under the Jones Act. When faced with this dilemma, these courts have focused on whether there was a substantial connection to a "vessel in navigation". A Hawai'i federal court decision in Becker v. Dillingham Construction Pacific is representative of this approach. In this case, the federal court acknowledged the differences in each jurisdiction as to what constitutes a "vessel in navigation." The federal court, relied on other Federal Ninth Circuit cases, and found that the flat barges and flexifloats in question did not automatically fall outside the scope of "vessels in navigation." The fact that these vessels may not have been primarily transportation vessels did not prevent the court from finding that the plaintiff may be a "seaman" under the Jones Act. In contrast is the prior ruling of a Florida Federal court in Hurst v. Pilings & Structures. This court ruled that the "spud barge" in question automatically prevented a diver from qualifying as a Jones Act seaman. The Hurst Court reached this decision because it determined that the primary function of the spud barge was to serve as a work platform and not a transportation vessel. Accordingly, as the above cases suggest, the legal requirements for divers to qualify under the Jones Act are constantly evolving. Commercial divers and their employers should stay abreast with the trends in these requirements under the Jones Act. While work logs and journals often prove helpful in protecting both parties' rights, it is no substitute for being knowledgeable of the specific requirements of the federal and state jurisdictions covering your diving work or the work of your diver-employees.