Diver Down!!! An Exception to the General Test for Seaman Status?

By James P. Nader & Joseph A. Poblick

Once again we take that familiar voyage know as "determining seaman status." No matter how familiar the voyage there are always changes in the currents which guide your path. Seaman status is important because only a seaman may receive maintenance and cure, and pursue a claim for Jones Act negligence or unseaworthiness. The basic requirements for seaman status are well established in maritime law. In order to qualify as a seaman under the Jones Act, a person's employment duties must contribute to the mission of the vessel and be connected to an identifiable group of vessels in navigation.

The United States Supreme Court has held that seaman status should be determined by the specific facts of each case. The totality of the circumstances surrounding the employee's employment must be considered in determining whether his duties had sufficient relation to the mission of the vessel and exposure to the perils of the sea. Additionally, it is typically the jury who has the responsibility to determine seaman status, and only in rare circumstances is that responsibility left up to the judge. Because juries typically decide the question of seaman status, who qualifies, it is often difficult to predict. The "diver's exception" is an example of the expansion of workers that qualify for Jones Act status. The "diver exception" permits the finding of seaman status when a diver's employer does not own or control a vessel or fleet of vessels, as long as a substantial portion of the employee's duties were performed aboard a vessel. The Louisiana Supreme Court has held that a determination of a diver's status should focus on whether the employee's duties are primarily sea-based and the employee's connection to a vessel. The Court determined that because a diver's work is inherently maritime in nature, they are regularly exposed to the perils of the sea. Typically, for a worker to have Jones Act status, he must be assigned to a vessel or fleet of vessels and spend at least 30 percent of his time in the service of a vessel. The Louisiana Court of Appeals has taken the diver exception to this rule. It held that the "diver's exception" was a "well established exception" to the general 30 percent established by the U.S. Supreme Court. Federal Courts across the country have held that a worker must spend at least 30 percent of their employment aboard a vessel. Courts in Louisiana, however, have ignored the 30 percent rule and provide a commercial diver with the protections and remedies of the Jones Act because of his exposure to the perils of the sea.

There are numerous cases in which the courts have qualified divers as seaman under the Jones Act despite the diver's lack of connection to an identifiable fleet of vessels. These cases relied on the amount of time the divers spent aboard their particular vessel, whether eating, sleeping or performing chores. In these multiple cases, the divers spent over 80 percent of their time aboard vessels. What these cases all have in common is the diver's employment related connection to a vessel. Duration aboard the vessel is only one factor to be considered. A federal appeals court in New Jersey held that a diver whose employment was related to the mission of the vessel, despite his short stay aboard, qualified as a seaman for the purposes of the Jones Act. A recent case in Mississippi held that a diver working off of a floating platform did not qualify for seaman status because he did not have a connection to an identifiable vessel. In that case, the Court held that despite the inherent maritime nature of the diver's work he did not perform a substantial part of his duties aboard a vessel.

The guidelines for determining who qualifies as a seaman are constantly evolving. Whether a person is a seaman is determined by the individual circumstances of each case. Courts have held that cooks, waiters, bartenders and even lounge singers can qualify as a seaman. A recent case also held that an employee's post-accident employment activities are relevant in determining seaman status.

Generally, for a diver to be considered a seaman under the Jones Act, he must have a connection to a vessel that is both substantial in nature and duration, his work must contribute to the mission or purpose of a vessel, and he must be exposed to the perils of the sea, and his duties must be primarily maritime in nature. Their duties must not be merely land based activity which is being carried out at sea.

The basis for finding that a diver is a Jones Act seaman was best explained by Judge John R. Brown of the United State Fifth Circuit Court of Appeal: "when a diver descends from the surface, braving the darkness, temperature, lack of oxygen, and high pressures, he embarks on a marine voyage in which his body is now the vessel. Before he can complete his assigned task, he must successfully navigate the seas." Who is more exposed to the perils of the sea than one who works beneath it? It is important for commercial diving operators and the companies that hire them to consult with legal counsel to ensure that they are adequately protected. In this ever changing world of seaman status, it is important to know ahead of time your rights and responsibilities.

About the Authors

James Nader is a partner and Joseph A. Poblick is an associate with the law firm of Lobman, Carnahan, Batt, Angelle & Nader in New Orleans, La. Mr. Nader's trial practice over the last eighteen years has included Admiralty and Maritime Law, an area in which he is an adjunct professor at Tulane University. Mr. Poblick's primary practice areas include admiralty, maritime law, and insurance defense. For more information on the firm, please see its Website at www.lcba-law.com, or contact them at 400 Poydras St., Suite 2300, New Orleans, LA 70130, phone (504) 586-9292.**

**This article is for general information and educational purposes only, and should not be construed as legal advice. The authors are available to discuss any specific questions or concerns regarding any issues related to this article.