A Textbook Case: Becker v Tidewater—Jones
Act Status Issue Once Again Wastes Resources of All
September 2003
The recent case of Becker v Tidewater provides a backdrop for the decades-old debate over
Jones Act versus Longshore Act status. A seaman’s status should be statutorily
defined to avoid the waste of time and expense now incurred in the argument
of what whether a seaman is a seaman.
by Michael
A. Orlando
Meyer Orlando, LLC
The recent case of Becker v Tidewater, 335
F3d 376 (5th Cir 2003), rehearing and rehearing en banc denied (July 21, 2003)
as revised (July 24, 2003), provides a textbook example—in fact a great case
study—of the incredible importance of the determination of whether an injured
offshore worker is a seaman or a longshoreman, and the strategic and tactical
decisions which must be made along the way by all parties. Here, the Fifth Circuit
Court of Appeals reversed and remanded for a new trial a $43 million verdict
on the basis that Mr. Becker was not a seaman but instead a longshoreman. This
is, in fact, a common occurrence, not the massive verdict, but the problems
created because there has never been a judicial or legislative “fix” to an issue
that persists despite nearly 80 years of litigation over these issues. One is
hard-pressed to come up with a substantive litigation issue that amounts to
such a waste of judicial and party resources than that of Jones Act versus Longshore
Act status. A review of Becker provides the backdrop.
The Facts of the Case
Seth Becker suffered a catastrophic injury while employed as a summer intern
with Baker Hughes, Inc. He was a college student studying to be an engineer
who had worked for Baker two previous summers. In the summer of 1999, he was
originally assigned to land-based work but soon was sent offshore to work on
a vessel as part of the crew for Baker’s oilfield work. Baker had time chartered
the Republic Tide, an offshore service vessel
owned by Tidewater, but modified to carry high pressure pumping equipment owned
by Baker. Tidewater supplied the navigational crew, but Baker had a six-man
work crew that handled its pumping and related equipment that was used at offshore
drilling sites in the Gulf of Mexico.
Becker came to be assigned to the crew of the vessel because two of the crew
members had been working for extended periods and needed time away from the
vessel. There was no question that Becker was “assigned to the vessel” as a
member of the crew. He was given brief training and was put to work.
His very first day would prove fateful as things started to go wrong early
in the first operation. The Baker operation requires a high pressure hose to
be run from the vessel to the drilling rig. The hose had a quick disconnect
for emergency situations. When the vessel arrived at the rig, it was unable
to anchor but instead was to be held in place by lines to the rig and the use
of the vessel’s bow thrusters and engines. For reasons that are not apparent
from the opinion, one of the lines securing the stern of vessel to the rig snapped,
then the other snapped, and it was necessary to perform an emergency disconnect
of the hose. Becker attempted to do that, but it failed. The hose then trapped
Becker up against a railing and nearly severed both of his legs below the knees.
He spent 6 weeks in the hospital, had numerous operations, and nearly died.
His medical bills were close to $500,000.
The Resulting Lawsuits
Becker sued Baker under the Jones Act and alternatively under the Longshore
and Harbor Workers Compensation Act (LHWCA), Tidewater under general maritime
law (and alternatively under LHWCA), and the owner of the drilling rig, Cliffs
Drilling, under general maritime law. (He also sued many other parties who were
related entities to the three main ones, and new parties were joined, making
this a complicated case that the writer is simplifying for the purposes of this
discussion). This was going to be a high potential damage case from the beginning,
and there was much at stake between the defendants.
As is usual in this type of case, though, everything depended on whether
the plaintiff was a seaman and therefore entitled to sue his own employer under
a federal statute designed to protect seamen who are “wards of the court” or
whether Becker was a longshoreman and thus entitled to only workers compensation
type benefits from his employer. It does no good and actually a lot of harm
to the plaintiff if he guesses wrong on the status issue—as happened in this
textbook example.
The Question of Status
Seaman’s status is a mixed question of law and fact. It is a question that
has commanded the attention of the U.S. Supreme Court on numerous occasions
over the 80+ years since the Jones Act statute was enacted in 1920. Recent decisions
have established a two-prong test. The first prong requires that a plaintiff
establish that his duties contribute to the function of the vessel or to the
accomplishment of its mission. For the second prong, the plaintiff must establish
a connection to a vessel in navigation that is substantial both in duration
and nature.
While in many contexts, both prongs may be difficult to analyze, here the
first one was easy. There was no doubt that the plaintiff’s job contributed
to the function of the vessel or its mission. This vessel’s function was to
supply high pressure pumping to offshore drilling rigs, and plaintiff was in
fact a crew member assigned to perform those duties in Baker’s crew aboard the
vessel. Thus, the court had no trouble holding that the first prong was adequately
proven at trial.
It is the second prong which makes this case a great illustration of the
difficulties encountered in cases of this sort. Initially, there was no dispute
that the Republic Tide was a vessel in navigation
(which maritime practitioners will know is a term of art). The main questions
were whether the plaintiff’s connection to the vessel was substantial in both
duration and nature. This element in the equation is intended to separate sea-based
maritime employees from land-based employees who have only a “transitory or
sporadic” connection to a vessel.
Generally, the totality of the circumstances of a worker’s employment must
be considered. This is a highly fact-driven inquiry. This part of the second
prong is referred to as the “status-based standard.”
Here, the Fifth Circuit looked to the recent Supreme Court cases last facing
a seaman’s status issue, Chandris, Inc. v Latsis,
515 U.S. 347 (1995), and Harbor Tug and Barge Co. v
Papai, 520 U.S. 548 (1997). From a reading of those cases, it is apparent
that the court rejected a “voyage test,” whereby one could be considered a Jones
Act seaman if he were assigned to a vessel for one voyage. Thus, determining
the time a person spent on a vessel, while important, is not generally outcome
determinative. A rule of thumb that has been established is that:
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.... (Chandris, 515 U.S.
at 371.)
One of the established exceptions to the general rule of needing at least
30 percent of time aboard a vessel is when a shore based worker has been “reassigned”
to a ship. Such a worker can be a Jones Act seaman even if injured early in
his new job. It is this exception that the plaintiff in Becker attempted to
utilize to qualify for Jones Act seaman’s status.
The “reassignment” exception creates the potential problem of workers walking
in and out of coverage in the course of regular duties, and that is obviously
not a desirable result. In Becker, the court of appeals noted that Chandris contemplates that a change in coverage
under the Jones Act occurs only when the status of the worker changes, not simply
because the worker happens to serve on a vessel before returning to work on
land. In short, merely serving “an assignment” on a vessel does not qualify
as a substantial change in status, otherwise the U.S. Supreme Court would have
allowed a “voyage test” in Chandris.
In examining the factual record in Becker,
the court of appeals concluded that Mr. Becker did not meet his burden of proof
that his status fundamentally changed when he was assigned to the Republic Tide. This was merely one of his
learning opportunities during a summer internship. With that, the court held
as a matter of law that Mr. Becker was not a seaman and the liability and damages
awards were reversed and remanded to the trial court for the case to proceed
under the LHWCA.
Of course, under the LHWCA, the plaintiff cannot sue his employer (except
in very limited circumstances, not present here), the non-employer defendants
have certain defenses that would not be available to them if the plaintiff were
a Jones Act seaman, and generally the plaintiff has a much tougher standard
of care to prove which makes his case entirely more difficult and in all likelihood
for a smaller recovery.
The Waste and a Possible Solution
What had been a complete piece of litigation that went all the way through
trial and appeal under one particular statute, the Jones Act, must be reworked
and retried under a different statute, the LHWCA, with the theories of recovery,
applicable standards of negligence, and potential damages being quite different
from the first complete piece of litigation. I think all would agree that this
was a horrendous waste of the judicial and the litigants’ resources that could
and should be remedied by a Congressional “fix.”
In the author’s view, seaman’s status should be statutorily defined. Until
much of the debate is quashed, seaman’s status will continue to occupy far too
much of everyone’s time and resources. Similarly, summary procedures should
be put in place via the Supplemental Admiralty Rules to allow quick decisions
on seaman’s status that might remain after a Congressional “fix.” Surely, both
the defense and the plaintiff’s bar must agree that the sort of waste that occurs
all too frequently in cases like Becker should
not be allowed to continue.
Opinions expressed in Expert Commentary articles are those of the author and are
not necessarily held by the author's employer or IRMI. Expert Commentary articles
and other IRMI Online content do not purport to provide legal, accounting, or other
professional advice or opinion. If such advice is needed, consult with your attorney,
accountant, or other qualified adviser.