REVISED APRIL 30, 2002
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
MILFRED J. NUNEZ
Plaintiff - Appellee - Cross-Appellant
B & B DREDGING, INC. ET AL
CLARENDON AMERICA INSURANCE COMPANY
Defendant - Appellant - Cross-Appellee
Appeals from the United States District
For the Eastern District of Louisiana, New
April 23, 2002
Before GARWOOD, JOLLY and DAVIS, Circuit Judges
W. EUGENE DAVIS, Circuit Judge:
The question in this case is whether a land-based
employee who is permanently assigned to work in the service of a vessel
but who spends only 10% of his time working aboard the vessel may enjoy
seaman status. We hold that such an employee is not a seaman.
Milfred J. Nunez was employed by B&B Dredging,
Inc. (B&B) for two years. During the last 18 months of his employment,
his work was in relation to the M/V DREDGE BATON ROUGE. He first worked
on the construction of the M/V DREDGE BATON ROUGE in the shipyard. After
she was commissioned and began dredging work, he followed the dredge as
dredge dump foreman. In this role, Nunez oversaw the discharge of dredge
soil on or near the bank of the waterway in which the dredge was operating.
This included building, monitoring, and changing dredge spoil sites, where
the dredge empties silt into piles on the shore. Although he traveled across
water to the dredge twice a day to report to his supervisor and occasionally
ate meals onboard, it is uncontested that Nunez performed 90% of his work
On September 4, 1997, the M/V BATON ROUGE
had been engaged for about three months in dredging a section of the Florida
Intercoastal Waterway for the U.S. Army Corps of Engineers. While performing
his duties on that date as dump foreman, Nunez began to sink into the silt.
In order to escape, he climbed onto the back of a track hoe, but when he
attempted to walk across the left track, the housing of the track hoe rotated,
causing the body of the machine to hit Nunez's left shoulder and throw
him approximately twenty feet in the air. Nunez suffered serious injuries
as a result.
Nunez sued B&B and its insurer, Clarendon
America Insurance Company (Clarendon), asserting claims for negligence
under the Jones Act,(1) and unseaworthiness,
maintenance, and cure under general maritime law.(2)
B&B and Clarendon moved for summary judgment, arguing that Nunez was
not a seaman under the Jones Act, which the court denied. Then Nunez moved
for summary judgment on the same issue; the court granted the motion, holding
that Nunez was a seaman as a matter of law. After a trial, the court awarded
Nunez damages and entered final judgment. B&B and Clarendon then lodged
B&B argues that the district court erred
by finding that Nunez was a seaman as a matter of law. We agree with B&B
for the reasons that follow.
Over 40 years ago this Circuit in Offshore
Company v. Robison, established a test for seaman status.(3)
We stated that:
there is an evidentiary basis for a Jones
Act case to go to the jury: (1) if there is evidence that the injured workman
was assigned permanently to a vessel (including special purpose structures
not usually employed as a means of transport by water but designed to float
on water) or performed a substantial part of his work on the vessel; and
(2) if the capacity in which he was employed or the duties which he performed
contributed to the function of the vessel or to the accomplishment of its
mission, or to the operation or welfare of the vessel in terms of its maintenance
during its movement or during anchorage for its future trips.(4)
The Supreme Court in a series of cases beginning
in 1991 essentially accepted this Circuit's seaman status test.(5)
In Chandris v. Latsis,(6) the Court
established a two-part test to determine seaman status that essentially
tracked this Circuit's test in Robison and this Court's 1986 en
banc opinion in Barrett v. Chevron.(7)
The Supreme Court stated the test as follows:
First ... an employee's duties must contribute
to the function of the vessel or to the accomplishment of its mission ...
Second, and most important for our purposes here, a seaman must have 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 its nature.(8)
It is uncontested that Nunez's job as dump
foreman contributed to the function and mission of the vessel. An essential
function of a dredge is to remove soil and silt from the seabed of the
waterway where the dredge is working. That spoil must be disposed of in
an orderly fashion on the shore for the dredge to perform its function.
Because Nunez was performing this essential job that allowed the dredge
to perform her work, the first prong of the Supreme Court's seaman status
test is satisfied. We therefore turn our attention to the second prong:
whether Nunez's connection to the dredge BATON ROUGE was substantial in
terms of both its duration and its nature.
We are satisfied that the Supreme Court's
analysis in Chandris v. Latsis resolves this question. In Chandris,
plaintiff Latsis sued his employer and sought recovery as a seaman under
the Jones Act. Latsis was a salaried engineer responsible for maintaining
and updating the electronic and communications equipment on Chandris's
fleet of six passenger ships. He planned and directed ship maintenance
from shore and was also required to take voyages on the ships in the fleet
to perform his job. He also spent some time supervising the vessels' refurbishment
in the shipyard.
The Court clarified what "employment related
connection to a vessel in navigation" is necessary for a maritime worker
to qualify as a seaman under the Jones Act.
The Court first discussed the fundamental
purpose of the requirement that a seaman have a substantial connection
to his vessel:
... [M]ost important for our purposes here,
a seaman must have 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 its nature. The fundamental purpose of this substantial connection
requirement is to give full effect to the remedial scheme created by Congress
and to separate the sea-based maritime employees who are entitled to Jones
Act protection from those land-based workers who have only a transitory
or sporadic connection to a vessel in navigation, and therefore whose employment
does not regularly expose them to the perils of the sea. This requirement
therefore determines which maritime employees in Wilander's broad
category of persons eligible for seaman status because they are "doing
the ship's work," are in fact entitled to the benefits conferred upon seamen
by the Jones Act because they have the requisite employment-related connection
to a vessel in navigation.(9)
The Court emphasized that the worker's connection
to the vessel must be substantial in both its duration and nature. The
The duration of a worker's connection to a
vessel and the nature of the worker's activities, taken together, determine
whether a maritime employee is a seaman because the ultimate inquiry is
whether the worker in question is a member of the vessel's crew or simply
a land-based employee who happens to be working on the vessel at a given
The Court disagreed with the Court of Appeals
that the seaman's connection to a vessel had no temporal requirement. The
Court stated "a maritime worker who spends only a small fraction of his
working time onboard a vessel is fundamentally land based and therefore
not a member of the vessel's crew, regardless of what his duties are."(11)
The Court stated further that "generally, the Fifth Circuit seems to have
identified an appropriate rule of thumb for the ordinary case: a worker
who spends less than about 30% of his time in the service of a vessel in
navigation should not qualify as a seaman under the Jones Act."(12)
Nunez points to the Robison test authorizing
a finding that the employee has the requisite connection to a vessel if
he was: ..."assigned permanently to a vessel..." or ..."performed
a substantial part of his work on the vessel." He argues that this test
is disjunctive and because he was permanently assigned to the dredge BATON
ROUGE as the dump foreman the district court correctly found that he had
the requisite connection to a vessel. We disagree. This interpretation
ignores the Supreme Court's teaching in Chandris that a seaman's
connection with a vessel includes a temporal requirement, i.e. that the
worker spend a substantial part of his work time aboard the vessel. Were
we to accept Nunez's argument, we would remove this requirement. In other
words, Nunez would have us adopt a rule -- contrary to Chandris's
directions -- that any worker whose duties contribute to the function or
the mission of the vessel is a seaman without regard to whether that worker
ever sets foot on the vessel. Such an interpretation would introduce a
host of land-based employees as potential Jones Act seamen simply because
their work supports the vessel's mission.
In Palmer v. Fayard Moving and Transp.
Corp., a land-based employee such as Nunez sought recovery under the
Jones Act.(13) Ms. Palmer, the plaintiff
in that case, was a land-based public relations officer whose job was entirely
devoted to promoting a single vessel, the M/V FRANCIS FAYARD. Ms. Palmer's
duties included writing letters promoting the use of the vessel, acting
as liaison with clients, researching the history of the ship, and setting
up trips on the vessel. She spent approximately 19% of her working hours
aboard the ship preparing the social areas of the ship and cleaning it
before and after social events. Despite the fact that Palmer - like Nunez
- spent 100% of her time furthering the mission or function of the vessel,
we concluded that she was not eligible for seaman status because the time
she spent aboard the vessel was insubstantial.
If we were to accept Nunez's argument, we
would expand the ranks of potential Jones Act seamen to all land-based
employees who further the mission or function of the vessel, from salesmen
to payroll clerks to corporate executives. Neither the law of the Supreme
Court or of this Circuit will permit such a bizarre result.
For a worker such as Nunez who divides his
work time between the shore and the vessel, he must demonstrate that he
spends a substantial part of his work time aboard the vessel in order to
demonstrate that he has the requisite connection to a vessel in order to
qualify for seaman status. Nunez spent approximately 10% of his work time
aboard the dredge BATON ROUGE. Because this is an insubstantial part of
his work time, he does not qualify for seaman status. Because Nunez is
not a seaman as a matter of law, we reverse the judgment of the district
court and render judgment in favor of B&B.
REVERSED AND RENDERED.
1. 46 U.S.C. §§
688 et seq.
2. Nunez also sued the
owner, operator, and insurer of the track hoe. The owner settled with Nunez
before trial. After trial, the district court held that the operator of
the track hoe had not abandoned his relationship with the hoe's owner and
had worked in furtherance of the business of both the owner and B&B.
Thus, the court held both companies jointly liable for his negligence,
and since the owner had already settled for its half, it reduced Nunez's
damage award by half. Nunez cross-appeals this reduction. Our holding on
the issue of seaman status renders this cross-appeal irrelevant.
3. Robison, 266
F.2d 769, 779 (5th Cir. 1959).
4. Id. at 779. See
also Palmer v. Fayard Moving and Transp. Corp., 930 F.2d 437,
439 (5th Cir. 1991) (noting that the Supreme Court endorsed the Robison
test in McDermott Int'l., Inc. v. Wilander, 498 U.S. 337, 354-55,
111 S.Ct. 807, 817 (1991)).
5. See Wilander;
Chandris, Inc. v. Latsis, 515 U.S. 347, 368, 115 S.Ct. 2172, 2190
Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 554,
117 S.Ct. 1535, 1540 (1997).
6. Chandris, 515
U.S. 347, 115 S.Ct. 2172 (1995).
7. Barrett, 781
F.2d 1067 (5th Cir. 1986) (en banc).
8. Hufnagel v. Omega
Service Industries, Inc., 182 F.3d 340, 346 (5th Cir. 1999), quoting
Harbor Tug, 520 U.S. at 554, 117 S.Ct. at 1540 (1997) (quoting
Chandris, 515 U.S. at 368, 115 S.Ct. at 2190 (1995)) (citations
and internal quotation marks omitted).
9. Chandris, 515
U.S. at 368-69, 115 S.Ct. at 2190 (internal citation omitted).
10. Id. at 370,
115 S.Ct. at 2190-91.
11. Id. at 371,
115 S.Ct. at 2191.
13. Palmer, 930
F.2d 437 (5th Cir. 1991).