Jones Act Injury Maritime Barge Ship Worker Seaman

100. --American agent

In determining Columbian shipowner's base of operations for purposes of jurisdiction of District Court to entertain complaint under Jones Act (46 USCS Appx § 688) to recover damages for injuries caused by shipowner's alleged negligence, fact that shipowner has agents in United States to husband its vessels while in American ports is of no significance. Rodriguez v Flota Mercante Grancolombiana, S.A. (1983, CA9 Cal) 703 F2d 1069, cert den 464 US 820, 78 L Ed 2d 94, 104 S Ct 84.

Where Greek seaman injured on Panamanian vessel flying Liberian flag had signed employment contract providing that terms and conditions of work were to be governed by Greek law, and only contacts with United States were seaman's brief stay in Alaskan hospital, New York domicile of vessel's former agent and New York residence of president of vessel's current New York area agent, federal court did not have jurisdiction to hear seaman's claims under 46 USCS Appx § 688 and general maritime law. Mihalinos v Liberian S.S. Trikala (1972, SD Cal) 342 F Supp 1237.

46 USCS Appx § 688 was not applicable to action by Philippine seamen for injuries allegedly sustained by them aboard Norwegian vessel in Lake Michigan, notwithstanding that managing owner of vessel owned or controlled United States corporation which acted as its general agent in United States, neither mere use nor mere ownership of agent in United States by shipowner suggested that shipowner's base of operations was in United States, and extension of base of operations doctrine to enterprise whose link to United States was that tenuous was not warranted. Manlugon v A/S Facto (1976, SD NY) 419 F Supp 550.

In action by injured seaman under Jones Act against his employer, foreign law, rather than American law, applied, notwithstanding seaman became American resident after he was injured, where place of wrongful act was aboard vessel in Persian Gulf; law of flag was Kuwait; allegiance of injured party was Sierra Leone; allegiance of shipowner was Kuwait; place of contract was Sierra Leone; both Sierra Leonian and Kuwaiti courts were available; law of forum was inapplicable since defendant was involuntarily made a party; and where defendant did not have American base of operations in that it maintained no office or representative in United States and managed daily operations of its vessel from its offices in Kuwait and England, notwithstanding it used agent in United States, made calls on United States ports, and amount of income earned from visits of its vessels to United States was only 14 percent of its total earnings. Pratt v United Arab Shipping Co. (1984, ED La) 585 F Supp 1573.

101. --Other American business contacts

46 USCS Appx § 688 jurisdiction existed with respect to action brought for wrongful death of Honduran seaman as to owner of vessel where all of stock of corporation owning vessel was owned by Americans, managing and chartering agents for vessel had their base of operations in United States, and managing and chartering of vessel was conducted in United States. Moncada v Lemuria Shipping Corp. (1974, CA2 NY) 491 F2d 470, cert den 417 US 947, 41 L Ed 2d 667, 94 S Ct 3072 and (disagreed with De Mateos v Texaco, Inc. (CA3 Pa) 562 F2d 895, cert den 435 US 904, 55 L Ed 2d 494, 98 S Ct 1449) and (disagreed with Chiazor v Transworld Drilling Co. (CA5 La) 648 F2d 1015, reh den (CA5 La) 659 F2d 1075 and cert den 455 US 1019, 72 L Ed 2d 136, 102 S Ct 1714) as stated in Vaz Borralho v Keydril Co. (CA5 Tex) 696 F2d 379, reh den (CA5 Tex) 710 F2d 207 and (disagreed with Tallentire v Offshore Logistics, Inc. (CA5 La) 754 F2d 1274, revd on other grounds (US) 91 L Ed 2d 174, 106 S Ct 2485).

Jones Act does not apply to accident sustained in Norway by Spanish citizen hired in Spain by Panamanian corporation using vessel flying Panamanian flag, although beneficial ownership and base of operations was in United States. Fajardo v Tidewater, Inc. (1983, CA5 La) 707 F2d 858.

Jones Act (46 USCS Appx § 688) is applicable where shipowner maintains base of operations in United States since corporate shipowner is found to have delegated business operations within United States to American corporations. Pavlou v Ocean Traders Marine Corp. (1962, SD NY) 211 F Supp 320.

Jones Act (46 USCS Appx § 688) and general maritime law of U.S. govern personal injury claim of Nicaraguan sailor, injured aboard vessel shrimping in waters off shore of Nicaragua, because vessel was flying U.S. flag at time of accident, real base of shrimping operation is U.S., and operation is primarily financed by U.S. government agencies. Mijimaya Zacaria v Gulf King 35, Inc. (1999, SD Tex) 31 F Supp 2d 560.

102. Adequacy of foreign remedy

Jones Act (46 USCS Appx § 688) is applicable in cases where no adequate remedy is available to injured seaman under foreign law. Heredia v Davies (1926, CA4 Va) 12 F2d 500; The Fletero v Arias (1953, CA4 Va) 206 F2d 267, cert den 346 US 897, 98 L Ed 398, 74 S Ct 220; Symonette Shipyards, Ltd. v Clark (1966, CA5 Fla) 365 F2d 464, cert den 387 US 908, 18 L Ed 2d 625, 87 S Ct 1690; Castanho v Jackson Marine, Inc. (1980, ED Tex) 484 F Supp 201, affd in part and app dismd in part (CA5 Tex) 650 F2d 546, reh den (CA5 Tex) 656 F2d 700 and reh den (CA5 Tex) 656 F2d 700.

Jones Act (46 USCS Appx § 688) is not applicable where injured seaman has available to him adequate remedy under foreign law in form of worker's compensation. Radovcic v The Princ Pavle (1942, DC NY) 45 F Supp 15.

Adequacy of foreign remedy is not to be determined by comparison to more liberal benefits available under Jones Act (46 USCS Appx § 688). Nakken v Fearnley & Eger (1955, DC NY) 137 F Supp 288; Rivadeneira v Skibs A/S (1973, SD NY) 353 F Supp 1382; Chirinos de Alvarez v Creole Petroleum Corp. (1980, CA3 Del) 613 F2d 1240.

Jones Act (46 USCS Appx § 688) is inapplicable where adequate foreign remedy is available to injured seaman. Markakis v Liberian S/S The Mparmpa Christos (1958, DC NY) 161 F Supp 487; Rivadeneira v Skibs A/S (1973, SD NY) 353 F Supp 1382; The Lynghaug (1941, DC Pa) 42 F Supp 713.

British electrician injured while working on drilling platform located off coast of India has no cause of action under Jones Act (46 USCS Appx § 688(b)), because plaintiff has failed to show that he has no remedy under laws of India or United Kingdom. Brown v Atwood Oceanics, Inc. (1988, MD La) 676 F Supp 720.

103. --Availability of foreign forum

Inaccessibility of foreign forum might be compelling reason for exercising discretionary jurisdiction to adjudge controversy, but it is not persuasive as to coverage of 46 USCS Appx § 688 since jurisdiction under statute is matter of law and not discretion. Lauritzen v Larsen (1953) 345 US 571, 97 L Ed 1254, 73 S Ct 921.

Although convenience of access to foreign forum may be regarded as factor militating against applicability of Jones Act (46 USCS Appx § 688), inaccessibility in sense of difficulty or inconvenience of access is not significant factor supporting applicability of Act. Moncada v Lemuria Shipping Corp. (1974, CA2 NY) 491 F2d 470, cert den 417 US 947, 41 L Ed 2d 667, 94 S Ct 3072 and (disagreed with De Mateos v Texaco, Inc. (CA3 Pa) 562 F2d 895, cert den 435 US 904, 55 L Ed 2d 494, 98 S Ct 1449) and (disagreed with Chiazor v Transworld Drilling Co. (CA5 La) 648 F2d 1015, reh den (CA5 La) 659 F2d 1075 and cert den 455 US 1019, 72 L Ed 2d 136, 102 S Ct 1714) as stated in Vaz Borralho v Keydril Co. (CA5 Tex) 696 F2d 379, reh den (CA5 Tex) 710 F2d 207 and (disagreed with Tallentire v Offshore Logistics, Inc. (CA5 La) 754 F2d 1274, revd on other grounds (US) 91 L Ed 2d 174, 106 S Ct 2485).

Jones Act (46 USCS Appx § 688) is inapplicable where injured seaman has convenient access to foreign forum in United States at consulate office of appropriate foreign government. Radovcic v The Princ Pavle (1942, DC NY) 45 F Supp 15; Pettersen v The Bertha Brovig (1950, DC NY) 92 F Supp 895; The Lynghaug (1941, DC Pa) 42 F Supp 713; The Astra (1940, DC Md) 34 F Supp 152.

Jones Act (46 USCS Appx § 688) is not applicable to suit for injury sustained aboard Columbian vessel in American territorial waters where Columbian seaman has appropriate foreign forum conveniently available to him. Atencio S. v The Ciudad De Bogota (1957, DC NY) 155 F Supp 590.

Mere availability to injured seaman of foreign forum does not necessariliy render Jones Act (46 USCS Appx § 688) inapplicable. Voyiatzis v National Shipping & Trading Corp. (1961, SD NY) 199 F Supp 920; Rode v Sedco, Inc. (1975, ED Tex) 394 F Supp 206; Camarias v M/V Lady Era (1969, DC Va) 318 F Supp 379, affd (CA4 Va) 432 F2d 1234; Castanho v Jackson Marine, Inc. (1980, ED Tex) 484 F Supp 201, affd in part and app dismd in part (CA5 Tex) 650 F2d 546, reh den (CA5 Tex) 656 F2d 700 and reh den (CA5 Tex) 656 F2d 700.

Unavailability of foreign forum is factor supporting applicability of Jones Act (46 USCS Appx § 688). Groves v Universe Tankships, Inc. (1970, SD NY) 308 F Supp 826; The Fletero v Arias (1953, CA4 Va) 206 F2d 267, cert den 346 US 897, 98 L Ed 398, 74 S Ct 220; The Astra (1940, DC Md) 34 F Supp 152.

104. --Effect of pending or previous foreign litigation

Jones Act (46 USCS Appx § 688) is applicable to suit brought by foreign seaman despite fact that seaman has already recovered damages in another forum for his injuries. Hellenic Lines, Ltd. v Rhoditis (1970) 398 US 306, 26 L Ed 2d 252, 90 S Ct 1731, reh den 400 US 856, 27 L Ed 2d 94, 91 S Ct 23; Farmer v Standard Dredging Corp. (1958, DC Del) 167 F Supp 381.

In action brought by Honduran seaman against Norwegian vessel owner, there are insufficient contacts with United States to apply United States law where wrong occurred in Liberia, vessel flew Norwegian flag, ship owner was Norwegian corporation based in Norway, and benefits had been paid under Norwegian compensation system. Nunez-Lozano v Rederi (1980, CA5 La) 634 F2d 135.

Jones Act (46 USCS Appx § 688) is inapplicable where seaman has previously received damages or compensation under laws of foreign forum for same injuries. Pettersen v The Bertha Brovig (1950, DC NY) 92 F Supp 895; Johansson v O. F. Ahlmark & Co. (1952, DC NY) 107 F Supp 70; Nakken v Fearnley & Eger (1955, DC NY) 137 F Supp 288; Rivadeneira v Skibs A/S (1973, SD NY) 353 F Supp 1382.

Despite pending or previous foreign litigation on same matter, Jones Act (46 USCS Appx § 688) is applicable to injured seaman's suit in American court. Mpiliris v Hellenic Lines, Ltd. (1969, DC Tex) 323 F Supp 865, affd (CA5 Tex) 440 F2d 1163; Castanho v Jackson Marine, Inc. (1980, ED Tex) 484 F Supp 201, affd in part and app dismd in part (CA5 Tex) 650 F2d 546, reh den (CA5 Tex) 656 F2d 700 and reh den (CA5 Tex) 656 F2d 700.

105. --Availability of evidence and testimony

Fact that seamen's medical records are kept, and physicians who treated him are located in Virginia is significant factor in exercising jurisdiction over suit by Indian seamen who sustained injuries aboard British vessel on high seas. Dutta v Clan Grahan (1975, CA4 Va) 528 F2d 1258.

Fact that preliminary investigations were carried on in United States is significant factor in decision to apply Jones Act (46 USCS Appx § 688) to suit by widow of Greek seaman who was killed in Texas while working aboard Greek registered vessel which was owned by Liberian corporation and operated by Panamanian corporation, both of which corporations were owned by Greek citizens. Fisher v The Agios Nicolaos V (1980, CA5 Tex) 628 F2d 308, 68 ALR Fed 342, reh den (CA5 Tex) 636 F2d 1107 and cert den 454 US 816, 70 L Ed 2d 84, 102 S Ct 92, reh den 454 US 1129, 71 L Ed 2d 117, 102 S Ct 982.

Foreign forums are more convenient for disposition of suit by representatives of seamen for deaths on high seas aboard Dominican Republic ship, and hence Jones Act (46 USCS Appx § 688) is inapplicable since witnesses and documentary evidence are in control of parties based in Dominican Republic, outside District Court's jurisdiction. The Lynghaug (1941, DC Pa) 42 F Supp 713.

Fact that testimony of seaman and other witnesses would be in Greek is insignificant difficulty which does not preclude application of Jones Act (46 USCS Appx § 688) to Greek seaman's suit for injuries sustained in Port of Boston aboard Liberian vessel owned by Panamanian corporation whose sole stockholder is United States citizen. Voyiatzis v National Shipping & Trading Corp. (1961, SD NY) 199 F Supp 920.

Availability of treating physicians is important factor to be considered in determining applicability of Jones Act (46 USCS Appx § 688) in denying Greek seaman's right to action under Act for injuries received on high seas aboard Liberian registered and Panamanian owned vessel. Mpampouros v S.S. Auromar (1962, DC Md) 203 F Supp 944.

Jones Act (46 USCS Appx § 688) does not apply to Italian seaman's suit for injuries sustained aboard Panamanian vessel on high seas since significant evidence is not available in United States. Scognamiglio v Home Lines, Inc. (1965, SD NY) 246 F Supp 605.

Jones Act (46 USCS Appx § 688) is inapplicable to suit where all witnesses reside in Greece and testimony would be in Greek, and important evidence would be unavailable in United States. Poulos v SS Ionic Coast (1967, ED La) 264 F Supp 237.

Jones Act (46 USCS Appx § 688) applies to suit for death of Irish seaman while working aboard Irish ship in Georgia due to domestic locus of accident, where local witnesses could testify to incident, despite fact that some of witnesses are Irish seamen. Kearney v Savannah Foods & Industries, Inc. (1972, SD Ga) 350 F Supp 85.

106. --Stipulation to post bond and appear in foreign forum

Jones Act (46 USCS Appx § 688) is not applicable to suit by Greek seaman who signed Greek articles in Belgium and who was injured on high seas aboard Liberian owned and Panamanian registered vessel on voyage from Belgium to United States since shipowner consented to jurisdiction in Greece, and thus accessibility of foreign forum weighed against permitting seaman to sue in American court. Dassigienis v Cosmos Carriers & Trading Corp. (1971, CA2 NY) 442 F2d 1016.

Jones Act (46 USCS Appx § 688) is not applicable to Greek seaman's suit for injuries sustained in New Orleans aboard Greek vessel where shipowner agreed to enter unconditional appearance in Greece and to file bond for any claims which seaman may successfully assert against shipowner in Greece. Yohanes v Ayers S.S. Co. (1971, CA5 La) 451 F2d 349, cert den 406 US 919, 32 L Ed 2d 118, 92 S Ct 1771.

Jones Act (46 USCS Appx § 688) is not applicable in case where adequate foreign forum is available to seaman in Greece since owner agreed to be sued in Greece and posted security for satisfaction of any judgment that might be rendered in Greece in action under Act to sue for injuries sustained on high seas aboard Liberian ship owned by United States citizens. Moutzouris v National Shipping & Trading Co. (1961, SD NY) 194 F Supp 468.

Although Greek seaman has adequate remedy available in Greece, Jones Act (46 USCS Appx § 688) is applicable to suit for injuries sustained in Port of Boston aboard Liberian vessel owned by Panamanian corporation whose sole stockholder was American citizen, since fact that just compensation is available under Greek law is minimal factor to be considered in determining applicability of Act. Voyiatzis v National Shipping & Trading Corp. (1961, SD NY) 199 F Supp 920.

Right of action under Jones Act (46 USCS Appx § 688) for injuries sustained by Greek seaman on high seas aboard Liberian registered and Panamanian owned vessel is denied where relief is available in Greek courts and shipowner and other defendants are willing to post security to insure amendability to process in Greece. Brillis v Chandris (U.S.A.), Inc. (1963, SD NY) 215 F Supp 520.

Availability of foreign forum outweighs contacts with United States of incidental importance, and thus Jones Act (46 USCS Appx § 688) is not applicable to suit by Greek seaman for injuries sustained in Mexico while aboard Liberian registered and Greek owned vessel, since shipowner was willing to accede to jurisdiction of proper Greek forum and would provide sufficient security to insure compliance with any decree of Greek court, thus making Greek forum readily accessible to seaman. Poulos v SS Ionic Coast (1967, ED La) 264 F Supp 237.

Jones Act (46 USCS Appx § 688) is not applicable to suit by Philippine seaman who was injured on Mississippi River aboard Singapore registered and Liechtenstein owned ship, since shipowner agreed not to interpose any defenses based upon laches or statute of limitations if suit were commenced in either foreign country. Ulat v Transreeder Schiffahrtsgesellschaft, m. b. h. (1976, DC La) 1976 AMC 2529.

107. ----Particular circumstances

Federal district court did not abuse its discretion in declining to retain jurisdiction of action under 46 USCS Appx § 688 and general maritime law by seaman, citizen of Estonia who signed in United States on ship owned by Swedish corporation and flying flag of that country for voyage to terminate in United States and who was injured outside territorial jurisdiction of United States, in view of remedy afforded him by law of Sweden. Berendson v Rederiaktiebolaget Volo (1958, CA2 NY) 257 F2d 136, 1958 AMC 1836, cert den 358 US 895, 3 L Ed 2d 121, 79 S Ct 156.

Although adequate remedy is available in Greece, Jones Act (46 USCS Appx § 688) is applicable to suit by widow of Greek seaman killed in Texas while working aboard Greek registered ship which was owned by Liberian corporation and operated by Panamanian corporation both of which corporations were owned by Greek citizens, since under Greek law place of tort determines applicable law. Fisher v The Agios Nicolaos V (1980, CA5 Tex) 628 F2d 308, 68 ALR Fed 342, reh den (CA5 Tex) 636 F2d 1107 and cert den 454 US 816, 70 L Ed 2d 84, 102 S Ct 92, reh den 454 US 1129, 71 L Ed 2d 117, 102 S Ct 982.

Action by German sailor for injuries sustained on Danish vessel would not be entertained by American court upon showing by Danish consul sailor had appropriate remedy under Danish law. The Paula (1937, DC NY) 17 F Supp 555, 1937 AMC 63, affd (CA2 NY) 91 F2d 1001, 1937 AMC 988, cert den 302 US 750, 82 L Ed 580, 58 S Ct 270.

Alien seaman on Norwegian ship, who had adequate remedy under Norwegian law, was not entitled to sue under 46 USCS Appx § 688 for frostbite injury, even though ship was shifted from dock in Hoboken to dock in Brooklyn. Jonassen v United States (1952, DC NY) 103 F Supp 862.

Jones Act (46 USCS Appx § 688) is inapplicable to suit for death on high seas of Panamanian seaman sailing aboard Panamanian ship since there is adequate foreign remedy available. Rankin v Atlantic Maritime Co. (1953, DC NY) 117 F Supp 253.

Although seaman has adequate remedy in courts of Ireland for injuries suffered and both seaman and shipowner were residents of Ireland, action under 46 USCS Appx § 688 could be tried in United States when interest of justice would be more effectively, expeditiously and inexpensively served by retaining jurisdiction over foreign parties in United States. Kearney v Savannah Foods & Industries, Inc. (1972, SD Ga) 350 F Supp 85.

46 USCS Appx § 688 action was dismissed on ground of forum nonconveniens where citizen of Greece jumped to his death from ship into Hudson River; deceased's widow was citizen and resident of Greece, owner of vessel was corporation organized and existing under laws of Liberia and said corporation was neither owned nor controlled by United States citizens, none of stock of owner of vessel was owned by United States citizen, vessel was engaged in carrying passengers and was registered under laws of Greece, decedent joined crew of vessel and agreed that any claim arising out of his employment would be settled according to Greek law, and vessel was departing from New York Harbor to Greece when decedent committed suicide. Xerakis v Greek Line, Inc. (1974, ED Pa) 382 F Supp 774.

Jones Act (46 USCS Appx § 688) is not applicable to suit by widow of Greek seaman for death in California while working aboard Greek registered and Panamanian owned ship since foreign remedy is more adequate to seaman's needs than American remedy. Leonard v General Carriers, S. A. (1974, DC Cal) 1974 AMC 471.

Inconvenience of American forum is one reason for refusing to apply Jones Act (46 USCS Appx § 688) to suit by Greek seaman for injuries sustained in Port of Mobile, Alabama, aboard Greek registered and Panamanian owned ship. Dorizos v Lemos & Pateras, Ltd. (1977, SD Ala) 437 F Supp 120.

Jones Act (46 USCS Appx § 688) applies to Syrian seaman's personal injury claim, notwithstanding Greek registry of ship, Liberian ownership, contract in Greek providing for Greek law to apply, and availability of foreign forum, where accident occurred in United States waters and ship had substantial and continuous business contact with United States. Dalla v Atlas Maritime Co. (1983, CD Cal) 562 F Supp 752, affd (CA9 Cal) 771 F2d 1277.

Electrician injured on drilling platform off coast of India and who at time of accident was citizen and resident of United Kingdom could not recover under Jones Act, where he failed to meet burden of establishing that he had no remedies available to him under laws of India or United Kingdom. Brown v Atwood Oceanics, Inc. (1988, MD La) 676 F Supp 720, 1988 AMC 1725.

108. Foreign hostilities

Although Jones Act (46 USCS Appx § 688) is applicable to suit by Hungarian seaman for injuries sustained aboard Greek vessel in United States, since seaman is citizen of enemy nation and not resident of United States, court is precluded by Trading With Enemy Act from granting relief for duration of war. The Leontios Teryazos (1942, DC NY) 45 F Supp 618.

Alien seaman injured in U. S. territorial waters is entitled to bring action under 46 USCS Appx § 688 where under special circumstances existing and because of war conditions there is probability that he would be unable to obtain relief for injuries in any other place. Kyriakos v Polemis (1943, DC NY) 53 F Supp 715.

109. Hardship

Jones Act (46 USCS Appx § 688) is applicable where hardship would result to seaman if he were prevented from suing under Act. The Fletero v Arias (1953, CA4 Va) 206 F2d 267, cert den 346 US 897, 98 L Ed 398, 74 S Ct 220.

Jones Act (46 USCS Appx § 688) applies to case of Portugese seaman's suit for injuries sustained in Great Britain aboard Panamanian registered and Dutch owned ship, since it would be unjust to require him to forego his forum of choice to be cast about to find justice elsewhere due to his paraplegic condition. Castanho v Jackson Marine, Inc. (1980, ED Tex) 484 F Supp 201, affd in part and app dismd in part (CA5 Tex) 650 F2d 546, reh den (CA5 Tex) 656 F2d 700 and reh den (CA5 Tex) 656 F2d 700.

110. Miscellaneous factors

Trade agreements between United States and foreign nations divesting American courts of jurisdiction over maritime controversies involving foreign seamen relate to international order and shipboard discipline of foreign vessels and are irrelevant when considering applicability of Jones Act (46 USCS Appx § 688). Gerradin v United Fruit Co. (1932, CA2 NY) 60 F2d 927, cert den 287 US 642, 77 L Ed 556, 53 S Ct 92; The Paula (1937, CA2 NY) 91 F2d 1001, cert den 302 US 750, 82 L Ed 580, 58 S Ct 270.

Although retention of jurisdiction by Federal District Court in action under 46 USCS Appx § 688 would expose shipowner to greatly increased liability under very liberal American maritime law, this cannot be raised as valid objection to retaining jurisdiction. Kearney v Savannah Foods & Industries, Inc. (1972, SD Ga) 350 F Supp 85.

Fact that ship, aboard which seaman was injured, carried American passengers is considered to be significant factor in determination that sufficient contacts with United States exist to warrant application of Jones Act (46 USCS Appx § 688). Pandazopoulos v Universal Cruise Line, Inc. (1973, SD NY) 365 F Supp 208; Mattes v National Hellenic American Line, S. A. (1977, SD NY) 427 F Supp 619.

American contacts were not sufficiently substantial to warrant application of 46 USCS Appx § 688 when among other factors, only 27 percent of total stops made during voyage in question were made in American ports and major portion of vessel's revenues was not in American trade. Hazell v Booth S.S. Co. (1977, SD NY) 436 F Supp 561, adhered to (SD NY) 444 F Supp 85.

II. PERSONS ENTITLED TO RECOVER

A. Seamen

1. General Principles

a. In General

111. Generally

Use of term "seaman" in Jones Act must be read in light of mischief to be corrected and the end to be attained. Chandris, Inc. v Latsis (1995, US) 132 L Ed 2d 314, 115 S Ct 2172, 95 CDOS 4499, 95 Daily Journal DAR 7769, 17 BNA OSHC 1257, 1995 AMC 1840.

Question of who is "member of a crew" under 33 USCS § 902(3)(G) and therefore "seaman" under Jones Act is mixed question of law and fact. Chandris, Inc. v Latsis (1995, US) 132 L Ed 2d 314, 115 S Ct 2172, 95 CDOS 4499, 95 Daily Journal DAR 7769, 17 BNA OSHC 1257, 1995 AMC 1840.

Jones Act (46 USCS Appx § 688(a))--which establishes negligence cause of action for wrongful death, but limits it to seamen--does not preclude present cause of action, for individual, not having been seaman, was not covered by Jones Act. Norfolk Shipbuilding & Drydock Corp. v Garris (2001) 532 US 811, 150 L Ed 2d 34, 121 S Ct 1927, 2001 CDOS 4514, 2001 Daily Journal DAR 5549, 2001 AMC 1817, 2001 Colo J C A R 2759, 14 FLW Fed S 305.

46 USCS Appx § 688 does not apply to members of naval forces of United States. Dobson v United States (1928, CA2 NY) 27 F2d 807, 1928 AMC 1583, cert den 278 US 653, 73 L Ed 563, 49 S Ct 179.

46 USCS Appx § 688 is broad and rule of interpretation is liberal as to who is seaman under it, but whenever tort occurs on navigable waters, person injured may not automatically avail himself of 48 USCS Appx § 688. Frankel v Bethlehem-Fairfield Shipyard, Inc. (1942, CA4 Md) 132 F2d 634, 1943 AMC 65, cert den 319 US 746, 87 L Ed 1702, 63 S Ct 1030.

There is nothing in 46 USCS Appx § 688 to indicate that Congress intended it to apply only to conventional members of ship's company. Offshore Co. v Robison (1959, CA5 La) 266 F2d 769, 75 ALR2d 1296 (disagreed with Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067)).

General rule relating to navigable waters of United States is that only master or member of crew is entitled to recover under 46 USCS Appx § 688. Klarman v Santini (1973, DC Conn) 363 F Supp 910, affd (CA2 Conn) 503 F2d 29, cert den 419 US 1110, 42 L Ed 2d 807, 95 S Ct 785.

112. Scope and definition of "seaman"

Status as "seaman" under Jones Act requires that worker's duties must contribute to function of vessel or to accomplishment of its mission and that worker's employment-related connection to vessel in navigation be substantial in terms of both duration and nature. Chandris, Inc. v Latsis (1995, US) 132 L Ed 2d 314, 115 S Ct 2172, 95 CDOS 4499, 95 Daily Journal DAR 7769, 17 BNA OSHC 1257, 1995 AMC 1840.

Inquiry as to whether maritime worker is covered by Jones Act is fundamentally status-based; thus, land-based maritime workers do not become seamen because they happen to be working on board vessel when they are injured, and seamen do not lose Jones Act protection when course of their service to vessel takes them ashore. Chandris, Inc. v Latsis (1995, US) 132 L Ed 2d 314, 115 S Ct 2172, 95 CDOS 4499, 95 Daily Journal DAR 7769, 17 BNA OSHC 1257, 1995 AMC 1840.

Although protections afforded to maritime employees under Jones Act extend to only those maritime employees who do ship's work, such threshold requirement is very broad, in that all who work at sea in service of ship are eligible for seaman status under Jones Act. Chandris, Inc. v Latsis (1995, US) 132 L Ed 2d 314, 115 S Ct 2172, 95 CDOS 4499, 95 Daily Journal DAR 7769, 17 BNA OSHC 1257, 1995 AMC 1840.

Coverage of employees under 46 USCS Appx § 688(a) is confined to seamen, those workers who face regular exposure to perils of sea; land-based employment is inconsistent with coverage under § 688(a). Harbor Tug & Barge Co. v Papai (1997, US) 137 L Ed 2d 800, 117 S Ct 1535, 97 CDOS 3507, 97 Daily Journal DAR 6021, 1997 AMC 1817, 10 FLW Fed S 433.

Jones Act (46 USCS Appx § 688) does not purport to change definition of seaman so as to do away with necessity of contractual relation of employment to serve on board vessel. Buffalo & Grand Island Ferry Co. v Williams (1928, CA2 NY) 25 F2d 612.

"Seaman" is one whose occupation is to navigate vessels upon sea, and term includes all those on board whose labor contributes to accomplishment of main object in which vessel is engaged. Osland v Star Fish & Oyster Co. (1939, CA5 Ala) 107 F2d 113, 1940 AMC 127, later app (CA5 Ala) 118 F2d 772, cert den 314 US 615, 86 L Ed 495, 62 S Ct 86, reh den 314 US 716, 86 L Ed 570, 62 S Ct 477; Carumbo v Cape Cod S.S. Co. (1941, CA1 Mass) 123 F2d 991 (disagreed with Offshore Co. v Robison (CA5 La) 266 F2d 769, 75 ALR2d 1296 (disagreed with Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067))); Vojkovich v Ursich (1942) 49 Cal App 2d 268, 121 P2d 803, 1942 AMC 299.

Oil well service employees were clearly seamen under Jones Act, since they were more or less permanently attached to vessels in navigation and their activities contributed to function of vessels, even though were not seamen within meaning of exception to Fair Labor Standards Act (29 USCS § 213(b)(6)). Dole v Petroleum Treaters, Inc. (1989, CA5 La) 876 F2d 518, 29 BNA WH Cas 582, 112 CCH LC P 35237, reh den (CA5) 1989 US App LEXIS 13173.

Test of seaman status under Jones Act is employment-related connection to vessel in navigation under following circumstances: (1) plaintiff contributed to function, or helped accomplish mission, of vessel; (2) plaintiff's contribution was limited to particular vessel or identifiable group of vessels; (3) plaintiff's contribution was substantial in terms of its duration or nature; and (4) course of employment regularly exposed plaintiff to hazards of sea. Latsis v Chandris, Inc. (1994, CA2 NY) 20 F3d 45.

Plaintiff is seaman for purposes of 46 USCS Appx § 688 where plaintiff's work clearly contributes to function of dredge in accomplishment of its mission. Ramos v Universal Dredging Corp. (1982, DC Hawaii) 547 F Supp 661.

To qualify as Jones Act seaman plaintiff must be assigned permanently to or perform substantial part of his work on vessel, and he must contribute to function of vessel or its mission or operation. Bogan v Barge T-13315B (1985, ED La) 607 F Supp 85.

Claimant hoping to establish status as "seaman" under 46 Appx USCS § 688 must prove that he was permanently assigned to or performed substantial part of his work on vessel in navigation and that capacity in which he was employed or duty which he performed contributed to the function of vessel or accomplishment of mission. Russo v F & T Services Corp. (1986, ED La) 636 F Supp 897.

Injury claim fails under 46 USCS Appx § 688, where claimant is co-owner of boat on which he was injured. Strom v M/V "Western Dawn" (1986, WD Wash) 698 F Supp 212, 1987 AMC 2794.

Construction worker's personal injury claim against employer fails under 46 USCS Appx § 688, where worker was working on bridge while assigned to floating crane, because worker was not "seaman." Stephenson v McLean Contracting Co. (1988, DC Md) 702 F Supp 552, 1988 AMC 2640.

113. --Construction with Longshore and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.)

Jones Act and Longshore and Harbor Workers' Compensation Act (LHWCA) are mutually exclusive compensation regimes; term "master or member of a crew" in 33 USCS § 902(3)(G) is refinement of term "seaman" in Jones Act and excludes from LHWCA coverage those properly covered under Jones Act; injured workers who fall under neither category may still recover under applicable state workers' compensation scheme or in admiralty. Chandris, Inc. v Latsis (1995, US) 132 L Ed 2d 314, 115 S Ct 2172, 95 CDOS 4499, 95 Daily Journal DAR 7769, 17 BNA OSHC 1257, 1995 AMC 1840.

Employee who is within exclusion from coverage under Longshore and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.) as "master or member of a crew of any vessel" pursuant to 33 USCS § 902(3)(G) is seaman entitled to sue for damages under 46 USCS Appx § 688(a). Harbor Tug & Barge Co. v Papai (1997, US) 137 L Ed 2d 800, 117 S Ct 1535, 97 CDOS 3507, 97 Daily Journal DAR 6021, 1997 AMC 1817, 10 FLW Fed S 433.

Word "seaman" as used in 46 USCS Appx § 688 does not mean same thing as "member of a crew" in Longshore and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.), but "seaman" is broad enough to cover both one who is member of crew and one who is not member of crew. Carumbo v Cape Cod S.S. Co. (1941, CA1 Mass) 123 F2d 991, 1942 AMC 215 (disagreed with Offshore Co. v Robison (CA5 La) 266 F2d 769, 75 ALR2d 1296 (disagreed with Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067))).

Finding of deputy commissioner in proceeding under Longshore and Harborworkers' Compensation Act (33 USCS § § 901 et seq.) that plaintiff was injured while performing service as member of shore staff for employer and engaged in shifting vessel from drydock, does constitute finding, for purposes of seaman's separate action under 46 USCS Appx § 688, that plaintiff was not member of crew. Hagens v United Fruit Co. (1943, CA2 NY) 135 F2d 842.

Longshore and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.) in effect amended 46 USCS Appx § 688 such that term "seaman" became synonymous with term "member of a crew." Brown v ITT Rayonier, Inc. (1974, CA5 Ga) 497 F2d 234.

Ship repairer expressly covered under Longshore and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.) is precluded from filing suit under Jones Act. Williams v Weber Management Services, Inc. (1987, CA5 La) 839 F2d 1039.

Term "seaman," as used in Jones Act, and "member of a crew of a vessel," as used in LHWCA, are equivalent. Harwood v Partredereit AF 15.5.81 (1991, CA4 Va) 944 F2d 1187.

Congress, in passing Longshore and Harbor Workers' Compensation Act, limited application of term "seaman" in Jones Act to "a master or member of a crew of any vessel." Mietla v Warner Co. (1975, ED Pa) 387 F Supp 937.

Employer is denied summary post-trial judgment against Jones Act claimant, where claimant was injured in normal course of his employment as crane operator while unloading riprap from barge and laying it on bank of navigable waters, because claimant was not engaged in longshoring activities per se so as to preclude his "seaman" status. Pierre v Pontchartrain Dredging Corp. (1989, ED La) 713 F Supp 207.

General maintenance worker's Jones Act suit against employer is summarily dismissed, even though worker injured back while attempting to attach steel cable from towboat to fitting on barge, because worker was engaged largely as harbor worker/ship repairman and was not seaman but rather 33 USCS § 902(3) "employee" covered exclusively by LHWCA. Petty v Dakota Barge Service (1989, DC Minn) 730 F Supp 983.

For purposes of 46 USCS Appx § 688 seaman is usually member of crew, as distinguished from longshoreman or harbor worker. Curtis Bay Towing Co. v Dean (1938) 174 Md 498, 199 A 521, 1938 AMC 851, cert den 305 US 628, 83 L Ed 402, 59 S Ct 92.

114. --As question of fact

Whether workman was seaman and member of crew of vessel engaged in commerce was question of fact to be determined by jury. Gianfala v Texas Co. (1955) 350 US 879, 100 L Ed 775, 76 S Ct 141, reh den 350 US 960, 100 L Ed 834, 76 S Ct 346 and (not followed Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067)); Schantz v American Dredging Co. (1943, CA3 Pa) 138 F2d 534; McKie v Diamond Marine Co. (1953, CA5 Tex) 204 F2d 132 (disagreed with Offshore Co. v Robison (CA5 La) 266 F2d 769, 75 ALR2d 1296 (disagreed with Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067))); Bernardo v Bethlehem Steel Co. (1963, CA2 NY) 314 F2d 604; Slatton v Martin K. Eby Constr. Co. (1974, CA8 Ark) 506 F2d 505, cert den 421 US 931, 44 L Ed 2d 88, 95 S Ct 1657; Mietla v Warner Co. (1975, ED Pa) 387 F Supp 937; Garcia v Queen, Ltd. (1973, CA5 Fla) 487 F2d 625, 17 FR Serv 2d 1593; Ardoin v J. Ray McDermott & Co. (1981, CA5 La) 641 F2d 277, reh den (CA5 La) 646 F2d 566 and later app (CA5 La) 684 F2d 335, 11 Fed Rules Evid Serv 843.

Inquiry whether employee is seaman within meaning of 46 USCS Appx § 688(a) is mixed question of law and fact. Harbor Tug & Barge Co. v Papai (1997, US) 137 L Ed 2d 800, 117 S Ct 1535, 97 CDOS 3507, 97 Daily Journal DAR 6021, 1997 AMC 1817, 10 FLW Fed S 433.

When employee sues under 46 USCS Appx § 688 whether he is to be classified as seaman or harbor worker covered by 33 USCS § § 901 et seq. presents issues of fact for determination by jury or court, as case may be. Bowen v Shamrock Towing Co. (1943, CA2 NY) 139 F2d 674, 1944 AMC 39; Smrekar v Bay & River Navigation Co. (1945) 69 Cal App 2d 654, 160 P2d 85, cert den 326 US 782, 90 L Ed 473, 66 S Ct 338.

Normally question of seaman status in particular case is to be resolved by factfinder and standard for testing jury's finding that worker is or is not Jones Act seaman is whether there is reasonable evidentiary basis to support that finding. Savoie v Otto Candies, Inc. (1982, CA5 La) 692 F2d 363, 12 Fed Rules Evid Serv 269.

Question of plaintiff's status as seaman is ordinarily question of fact; District Court may determine seaman status, as matter of law, only where there is no reasonable evidentiary basis to support jury finding that plaintiff is seaman. Petersen v Chesapeake & O. R. Co. (1986, CA6 Mich) 784 F2d 732.

Activity of plaintiff at time of injury is only one factor in analysis of whether or not that individual, seeking damages under Jones Act (46 USCS Appx § 688), is engaged in occupation covered by Longshore and Harbor Workers' Compensation Act (33 USCS § 905) and thus ineligible for Jones Act benefits; general issue of material fact exists as to plaintiff's status as seaman, where, at time of accident, plaintiff was either on shore constructing new crew quarters for barge or on shore loading barge with sand for subsequent pipelaying job offshore, and plaintiff also maintains that he spent approximately 90 percent of his employment time with employer offshore onboard barge as member of crew of that barge, and employer does not dispute that plaintiff's job title for purposes of receiving compensation was crane operator onboard barge. Thibodeaux v Torch, Inc. (1988, CA5 La) 858 F2d 1048, reh den, en banc (CA5 La) 862 F2d 874.

Appellate review of determination of whether injured worker is seaman under Jones Act, which is mixed question of law and fact, is plenary. Roberts v Cardinal Servs. (2001, CA5 La) 266 F3d 368.

It is well established that question of seaman's status is one of fact and must be left to fact finder if there is any evidence to support finding that worker is member of crew of vessel. Mietla v Warner Co. (1975, ED Pa) 387 F Supp 937.

46 USCS Appx § 688 is applicable only if seaman is involved and applies only with respect to liability of owners of vessels; status of person as "seaman" or "owner" is ordinarily matter determinable only by detailed examination of facts of each particular case. De Court v Beckman Instruments, Inc. (1973, 4th Dist) 32 Cal App 3d 628, 108 Cal Rptr 109.

Question of fact as to extent of release exists, where ship's cook, who was injured in course of employment, settled Jones Act claim for lump sum and released vessel, vessel's underwriter, and employer from liability, and employer ceased disability payments, claiming that release covered disability payments as well as tort claims, because case turns on whether cook was "seaman" within meaning of Jones Act, and question of whether his job contributed to function of vessel or to accomplishment of its mission was question for jury. Antoniou v Thiokol Corp. Group Long Term Disability Plan (1993, MD Fla) 829 F Supp 1323, 7 FLW Fed D 373.

115. --As question of law

Maritime worker whose occupation as ship repairman is listed in Longshore and Harbor Workers' Compensation Act is not precluded from being "seaman" under Jones Act. Southwest Marine, Inc. v Gizoni (1991, US) 116 L Ed 2d 405, 112 S Ct 486, 91 Daily Journal DAR 14793, 15 BNA OSHC 1369, 1992 AMC 305.

Although it is rare that factual setting is so clear that status as seaman can be resolved as matter of law, it will be so resolved in appropriate circumstances. Burns v Anchor--Wate Co. (1972, CA5 La) 469 F2d 730.

Ordinarily, whether claimant is seaman is factual dispute to be resolved by jury, but if there is no genuine factual dispute to be resolved, District Court may properly refuse to submit issue to jury where only rational inference to be drawn from evidence is that claimant was not seaman. Owens v Diamond M Drilling Co. (1973, CA5 La) 487 F2d 74, reh den (CA5 La) 487 F2d 1401; Noack v American S.S. Co. (1974, CA6 Ohio) 491 F2d 937; Higginbotham v Mobil Oil Corp. (1977, CA5 La) 545 F2d 422 (disagreed with Smith v M/V Captain Fred (CA5 La) 546 F2d 119) as stated in Longmire v Sea Drilling Corp. (CA5 La) 610 F2d 1342, reh den (CA5 La) 615 F2d 919 and (disagreed with Steckler v United States (CA10 Colo) 549 F2d 1372, 38 ALR Fed 188 (disagreed with Smith v United States (CA3 Pa) 587 F2d 1013)) and revd on other grounds 436 US 618, 56 L Ed 2d 581, 98 S Ct 2010, on remand (CA5 La) 578 F2d 565 and reh den 439 US 884, 58 L Ed 2d 200, 99 S Ct 232 and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90) and (disapproved on other grounds Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523, 76 L Ed 2d 768, 103 S Ct 2541, on remand (CA3) 711 F2d 570); Holland v Healy Tibbitts Constr. Co. (1974, DC Hawaii) 379 F Supp 192; Bedia v Ford Motor Co. (1973, DC NY) 58 FRD 423; Brown v L. A. Wells Const. Co. (1944) 143 Ohio St 580, 28 Ohio Ops 486, 56 NE2d 451.

Determination whether claimant has proved sufficient connection with water-borne or vessel-related activities to invoke jurisdiction as seaman under 46 USCS Appx § 688 is mixed question law and fact. Holland v Allied Structural Steel Co. (1976, CA5 Miss) 539 F2d 476, reh den (CA5 Miss) 542 F2d 1173 and cert den 429 US 1105, 51 L Ed 2d 557, 97 S Ct 1136.

While question of whether claimant is seaman is ordinarily resolved by trier of fact, trial court may nevertheless enter directed verdict where record demonstrates that reasonable persons could not draw conflicting inferences which might lead to different conclusion. Landry v Amoco Production Co. (1979, CA5 La) 595 F2d 1070.

District Court properly ruled as matter of law that roustabout assigned to fixed offshore platform in Gulf of Mexico was not "seaman" with respect to crewboat where there was not scintilla of evidence that he was other than mere passenger on boat. Beard v Shell Oil Co. (1979, CA5 Tex) 606 F2d 515.

Although determining seaman status is usually question of fact, if requisite proof is absent, court may decide status is lacking as matter of law and there was no reasonable basis on which jury could have found that plaintiff was seaman where testimony clearly showed that she was assigned to fixed platforms, lived on offshore, fixed platform when working, her job responsibilities related to well sites at other fixed locations, her only contact with boats occurred when they ferried her from one job site to another, she did not perform any job-related duties on boats, except to sometimes receive radio messages as to what was to be done at well site, and any minor aid she extended on boats was as courtesy and not as part of her duties as employee. Kerr-McGee Corp. v Ma-Ju Marine Services, Inc. (1987, CA5 La) 830 F2d 1332.

Appellate review of determination of whether injured worker is seaman under Jones Act, which is mixed question of law and fact, is plenary. Roberts v Cardinal Servs. (2001, CA5 La) 266 F3d 368.

While determination of person's status as Jones Act seaman is normally question of fact which should be submitted to jury, issue can properly be addressed in motion for summary judgment where there is no reasonable evidentiary basis to support jury finding that platform worker is seaman. Myrick v Teledyne Movible Offshore, Inc. (1981, SD Tex) 516 F Supp 602.

Issue of whether claimant is "seaman" is normally matter for finder of fact to determine after trial; matter may be taken from trier of fact, however, where record demonstrates that reasonable persons could not draw conflicting inferences which might lead to different conclusion. Ramos v Universal Dredging Corp. (1982, DC Hawaii) 547 F Supp 661.

Trial court may properly decide whether individual is seaman within meaning of 46 USCS Appx § 688, when any other determination would be so lacking in evidentiary support that it should be decided as question of law rather than of fact. Howard v Global Marine, Inc. (1972, 2d Dist) 28 Cal App 3d 809, 105 Cal Rptr 50.

That worker involved is "seaman" within meaning of 46 USCS Appx § 688 may be question of law where facts are undisputed and reasonable men could not draw conflicting inferences. Soucie v Trautwein Bros. (1969, 4th Dist) 275 Cal App 2d 20, 79 Cal Rptr 671.

116. "Member of crew" as seaman

Duties of man during vessel's travel are relevant in determining whether he is member of crew for purposes of 46 USCS Appx § 688 while vessel is anchored. Senko v La Crosse Dredging Corp. (1957) 352 US 370, 1 L Ed 2d 404, 77 S Ct 415, reh den 353 US 931, 1 L Ed 2d 724, 77 S Ct 716.

To have right of recovery for personal injuries under 46 USCS Appx § 688, injured party must have status as member of vessel, for it is seamen, not others who may work on vessel, to whom Congress extended protection of this section. Braen v Pfeifer Oil Transp. Co. (1959) 361 US 129, 4 L Ed 2d 191, 80 S Ct 247.

46 USCS Appx § 688 does not require plaintiff to be member of crew. Antus v Interocean S.S. Co. (1939, CA6 Ohio) 108 F2d 185, 1940 AMC 459.

46 USCS Appx § 688 applies only to seamen who are members of crew of vessel plying navigable waters. Gahagan Const. Corp. v Armao (1948, CA1 Mass) 165 F2d 301, cert den 333 US 876, 92 L Ed 1152, 68 S Ct 905; McKie v Diamond Marine Co. (1953, CA5 Tex) 204 F2d 132 (disagreed with Offshore Co. v Robison (CA5 La) 266 F2d 769, 75 ALR2d 1296 (disagreed with Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067))).

Recovery under 46 USCS Appx § 688 requires affiliation with "vessel", either as crew member or as one injured aboard doing seaman's work. Powers v Bethlehem Steel Corp. (1973, CA1 Mass) 477 F2d 643, reh den (CA1 Mass) 483 F2d 963 and cert den 414 US 856, 38 L Ed 2d 106, 94 S Ct 160.

Remedy provided by 46 USCS Appx § 688 is applicable to class of persons defined as seamen for admiralty jurisdictional purposes, i. e. one who is permanently attached to and employed by vessel as member of its crew. Whittington v Sewer Constr. Co. (1976, CA4 W Va) 541 F2d 427.

Inquiry into seaman status for Jones Act purposes requires determination of whether injured plaintiff is master or member of crew of any vessel. Roberts v Cardinal Servs. (2001, CA5 La) 266 F3d 368.

Although Jones Act itself does not define seaman, term is used interchangebly throughout case law with phrase "member of the crew." Hines v Saylor Marine Corp. (1985, SD Ga) 615 F Supp 33.

117. Effect of prior or future status as seaman

Whether person is seaman for purposes of 46 USCS Appx § 688 depends largely upon facts of particular case and activity in which he was engaged at time of injury; whether person has been in past, or expects in future to be, seaman does not render maritime work which is not maritime in its nature. Desper v Starved Rock Ferry Co. (1952) 342 US 187, 96 L Ed 205, 72 S Ct 216, reh den 342 US 934, 96 L Ed 695, 72 S Ct 374.

Employee who brought action under 46 USCS Appx § 688, was not seaman despite employment as cook aboard dredge for more than one year prior to accident when, for 2 week period preceding accident which gave rise to action, employee in new position had no significant duties upon dredge, and connection with dredge was so casual and insignificant as to give rise to no jury question as to his seaman status after he commenced work on new project; in determining whether plaintiff was seaman in new position, past work experience aboard dredge was irrelevant. Guidry v South Louisiana Contractors, Inc. (1977, WD La) 444 F Supp 850, remanded (CA5 La) 614 F2d 447, reh den (CA5 La) 616 F2d 568.

Neither plaintiff's assertions that he was formerly "seaman" by occupation and that he intended to resume such status at some point in future, nor that he was member of seafaring union at time of his injuries and that he was doing work which seaman might also perform, are controlling. Baker v Pacific Far East Lines, Inc. (1978, ND Cal) 451 F Supp 84.

Individual who had no pending assignment to vessel at time of injury and who never had any assignment to vessel during course of employment for particular employer is not seaman under Jones Act (46 USCS Appx § 688) notwithstanding that individual may have been seaman with regard to prior employers; employee's status with regard to employer A does not affect status with regard to employer B. Ramos v Delmar Systems, Inc. (1984, WD La) 596 F Supp 1105, affd in part and vacated in part on other grounds (CA5 La) 750 F2d 389, reh den, en banc (CA5 La) 756 F2d 882 and reh den, en banc (CA5 La) 756 F2d 882 and reh den, en banc (CA5 La) 756 F2d 882.

b. Tests for Determining Status as Seaman

118. Generally

If individual is to be member of crew, three requirements must be met: (1) vessel must be in navigation; (2) there must more or less permanent connection with vessel; and (3) worker must be aboard primarily to aid in navigation. South Chicago Coal & Dock Co. v Bassett (1940) 309 US 251, 84 L Ed 732, 60 S Ct 544 (diverged from Gianfala v Texas Co., 350 US 879, 100 L Ed 775, 76 S Ct 141, reh den 350 US 960, 100 L Ed 834, 76 S Ct 346 and (not followed Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067))); Munguia v Chevron Co., U.S.A. (1985, CA5 La) 768 F2d 649, reh den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 580, 106 S Ct 1272;.

In evaluating whether worker is "seaman," court should not employ "snapshot" test for seaman status, which test would inspect situation as it exists only at instant of injury; rather, court must look at more enduring relationship, employing total circumstances of employment. Chandris, Inc. v Latsis (1995, US) 132 L Ed 2d 314, 115 S Ct 2172, 95 CDOS 4499, 95 Daily Journal DAR 7769, 17 BNA OSHC 1257, 1995 AMC 1840.

With respect to determining whether individual--who allegedly was injured while assigned to paint housing structure of tug at dockside, which assignment was obtained through union hiring hall--was seaman under 46 USCS Appx § 688(a), question is what connection individual had in actual fact to vessel operations, not what agreement between employer and union says. Harbor Tug & Barge Co. v Papai (1997, US) 137 L Ed 2d 800, 117 S Ct 1535, 97 CDOS 3507, 97 Daily Journal DAR 6021, 1997 AMC 1817, 10 FLW Fed S 433.

In order to pose jury question on issue of seaman status, plaintiff must present evidence that (1) injured workman was assigned permanently to vessel, including special purpose structure not usually employed as means of transport by water but designed to float on water, or performed substantial part of his work on vessel, and (2) capacity in which he was employed or duties which he performed contributed to function of vessel, accomplishment of its mission, or operation or welfare of vessel in terms of maintenance during its movement or anchorage for future trips. Offshore Co. v Robison (1959, CA5 La) 266 F2d 769, 75 ALR2d 1296 (disagreed with Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180); and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067)); Balfer v Mayronne Mud & Chemical Co. (1985, CA5 La) 762 F2d 432.

To be Jones Act seaman entitled to sue for negligence, as well as breach of warranty of seaworthiness, but not entitled to longshoremen's compensation, vessel must be in navigation, there must be more or less permanent connection with ship, and worker must be aboard naturally and primarily as aid to navigation. Salgado v M. J. Rudolph Corp. (1975, CA2 NY) 514 F2d 750.

Test to determine seaman status asks whether (1) vessel is in navigation, (2) employee has more or less permanent connection with vessel, and (3) employee was on board vessel primarily in aid of navigation. Petersen v Chesapeake & O. R. Co. (1986, CA6 Mich) 784 F2d 732. Rackus v Moore-McCormack Lines, Inc. (1949, DC Pa) 85 F Supp 185; Baker v Pacific Far East Lines, Inc. (1978, ND Cal) 451 F Supp 84; Wilkes v Mississippi River Sand & Gravel Co. (1953, CA6 Tenn) 202 F2d 383, cert den 346 US 817, 98 L Ed 344, 74 S Ct 29; Nelson v Greene Line Steamers, Inc. (1958, CA6 Ky) 255 F2d 31, cert den 358 US 867, 3 L Ed 2d 100, 79 S Ct 100; Bodden v Coordinated Caribbean Transport, Inc. (1966, CA5 Fla) 369 F2d 273, 5 ALR Fed 668; Garcia v Queen, Ltd. (1973, CA5 Fla) 487 F2d 625 17 FR Serv 2d 1593; Noack v American S.S. Co. (1974, CA6 Ohio) 491 F2d 937; Salgado v M. J. Rudolph Corp. (1975, CA2 NY) 514 F2d 750; Lewis v Roland E. Trego & Sons, Inc. (1973, DC Md) 359 F Supp 1130, affd in part and vacated in part on other grounds (CA4 Md) 501 F2d 372; Klarman v Santini (1973, DC Conn) 363 F Supp 910, affd (CA2 Conn) 503 F2d 29, cert den 419 US 1110, 42 L Ed 2d 807, 95 S Ct 785; Griffith v Wheeling Pittsburgh Steel Corp. (1974, WD Pa) 384 F Supp 230, revd on other grounds (CA3 Pa) 521 F2d 31, cert den 423 US 1054, 46 L Ed 2d 643, 96 S Ct 785; Mietla v Warner Co. (1975, ED Pa) 387 F Supp 937; Garcia v Universal Seafoods, Ltd. (1978, WD Wash) 459 F Supp 463; Lotzman v Oxyness Shipping Co. (1978) 93 Misc 2d 461, 402 NYS2d 964.

Under both Jones Act and general maritime law, status as seaman depends on 3 factors: (1) vessel on which claimant employed must be in navigation; (2) claimant must have more or less permanent connection with vessel; and (3) claimant must be aboard primarily to aid in navigation. Omar v Sea-Land Service, Inc. (1987, CA9 Wash) 813 F2d 986.

Under "no snapshot" doctrine, court does not evaluate worker's connection to vessel or fleet at moment of injury; court must consider his intended relationship, as if he had completed his mission uninjured. Foulk v Donjon Marine Co. (1998, CA3 NJ) 144 F3d 252, 40 FR Serv 3d 980.

Trial judge abused his discretion in permitting plaintiff to present evidence of prior work history unrelated to defendant employer. Shade v Great Lakes Dredge & Dock Co. (1998, CA3 Pa) 154 F3d 143.

There is three-part test determining issue of whether individual is "member of crew" of "vessel": (1) allegedly unseaworthy vessel must have been vessel in navigation; (2) plaintiff must have been aboard vessel primarily to perform duties which contributed to function of vessel or accomplishment of mission; and (3) plaintiff must have had more or less permanent connection with vessel or with specific group of vessels. Buna v Pacific Far East Line, Inc. (1977, ND Cal) 441 F Supp 1360. Yelverton v Mobile Laboratories, Inc. (1985, SD Miss) 608 F Supp 400, affd (CA5 Miss) 782 F2d 555.

119. Aiding in navigation

Employee need not aid in navigation of vessel in order to qualify as "seaman" under Jones Act; therefore, paint foreman, whose employment duties included sandblasting and painting of piping located on oil drilling platforms who was injured while inspecting pipe on such platform was "seaman" within meaning of Act. McDermott Int'l, Inc. v Wilander (1991, US) 112 L Ed 2d 866, 111 S Ct 807, 91 CDOS 1271, 91 Daily Journal DAR 2056.

Person working aboard ship cannot be seaman for purposes of 46 USCS Appx § 688 if ship is not in navigation. Antus v Interocean S.S. Co. (1939, CA6 Ohio) 108 F2d 185.

Term "aiding in navigation" is not confined to those who can "hand, reef and steer" but applies to all whose duties contribute to operation and welfare of vessel. Wilkes v Mississippi River Sand & Gravel Co. (1953, CA6 Tenn) 202 F2d 383, cert den 346 US 817, 98 L Ed 344, 74 S Ct 29.

To be considered "seaman" for purposes of recovery under Jones Act, 46 USCS Appx § 688, nature of claimant's duties aboard vessel is not controlling and he need not be serving vessel in strictly navigational capacity. Weiss v Central R. Co. (1956, CA2 NY) 235 F2d 309.

With respect to determination of seaman's status under 46 USCS Appx § 688, there is no absolute requirement that claimant actually cause vessel to move. Mietla v Warner Co. (1975, ED Pa) 387 F Supp 937.

Person is not aboard naturally and primarily as aid to navigation and therefore not Jones Act [46 USCS Appx § 688] seamen where person was never on barge while barge was moving, boarded barge only for purpose of operating crane, of performing maintenance work, and, on rare occasions, for purpose of handling lines or tying up barge and where further person did not sleep overnight on barge. McSweeney v M.J. Rudolph Corp. (1983, ED NY) 575 F Supp 746.

Widow's 46 USCS Appx § 688 claim against U.S. must fail, where husband was killed when overcome by fumes while cleaning and venting various tanks and cofferdams on naval vessel pursuant to his employer's contract with Navy, because these duties did not contribute to transportation function of ship and were not "aid to navigation," and husband therefore was not "seaman." Minnick v United States (1990, ED Va) 767 F Supp 115, 1991 AMC 1284.

When crew of vessel is referred to, those persons are naturally and primarily meant who are on board her aiding in her navigation without reference to nature of arrangement under which they are on board. Shore Fishery, Inc. v Board of Review (1941) 127 NJL 87, 21 A2d 634, 1942 AMC 1558.

Although claimant must be permanently assigned to vessel and his duties must contribute to mission of vessel in order to qualify as seaman under Jones Act, claimant's duties need not be related to navigation of vessel. Allen v Mobile Interstate Piledrivers (1985, Ala) 475 So 2d 530.

120. Continuous attachment

Duration of service for and upon vessel may determine whether shipboard work which is not normally performed by ship's company makes worker crewman, but lack of long continued attachment to vessel cannot, as matter of law, serve to deny seaman's status under Jones Act, 46 USCS Appx § 688, to employee who is injured while assigned to and performing normal crew service. Mach v Pennsylvania R. Co. (1963, CA3 Pa) 317 F2d 761; Petition of Read (1963, SD Fla) 224 F Supp 241.

Evidence of sporadic contacts for brief periods of time with water-borne vessels is insufficient to support finding of seaman status under Jones Act, 46 USCS Appx § 688; it must be shown that workman performs significant part of his work aboard ship with at least some degree of regularity and continuity. Holland v Allied Structural Steel Co. (1976, CA5 Miss) 539 F2d 476, reh den (CA5 Miss) 542 F2d 1173 and cert den 429 US 1105, 51 L Ed 2d 557, 97 S Ct 1136.

Employee who is not permanently assigned to any particular vessel or fleet of vessels cannot be considered "seaman" for purpose of Jones Act. Bach v Trident S.S. Co. (1991, CA5 La) 947 F2d 1290.

Real test of coverage under Jones Act, 46 USCS Appx § 688, is not whether claimant is seaman assisting in navigation of vessel or whether vessel itself is plying seven seas; real test is whether claimant is more or less permanently employed aboard vessel in capacity which contributes to accomplishment of vessel's mission; for example cooks, drillers, and musicians employed aboard vessel on more or less permanent basis may be covered by Jones Act. Perez v Marine Transport Lines, Inc. (1958, DC La) 160 F Supp 853.

It is not necessary that employee live aboard vessel in order to acquire status of seaman, he need only be more or less permanently attached to vessel, including special purpose structure or perform substantial part of his work aboard such vessel and, secondly, capacity in which he is employed or duties which he performs must contribute to function of vessel or to accomplishment of its mission or operation or welfare of vessel in terms of maintenance during movement or during anchorage for other trips. Chenevert v Clinch Drilling Co. (1967, ED La) 273 F Supp 943.

Employee may be seaman although variously assigned to several different vessels from time to time; and seamen who are injured on shore while engaged in temporary or fill-in work for their employers are covered by Jones Act, 46 USCS Appx § 688. Taylor v Packer Diving & Salvage Co. (1971, ED La) 342 F Supp 365, affd (CA5 La) 457 F2d 512, reh den (CA5 La) 471 F2d 650.

Since Fifth Circuit established test for seaman status under Jones Act while employer's motion for judgment n.o.v. was pending, coiled tubing operator, killed after falling from platform aboard ship, was held not to be seaman under Jones Act where overall, only about 5% of his work was done aboard vessels, since seaman status is determined in context of entire employment with current employer. Ward v Reeled Tubing, Inc. (1986, ED La) 637 F Supp 33.

121. --Particular circumstances

Employee was not more or less permanently conntected with vessel where his presence on vessel was only for purpose and duration of loading freighter alongside and he ate and slept ashore. Salgado v M. J. Rudolph Corp. (1975, CA2 NY) 514 F2d 750.

Employee does not meet continuous attachment requirement for status as seaman under Jones Act, 46 USCS Appx § 688, where during his employment he spent less than 15 percent of his total time onboard vessel. Davis v Hill Engineering, Inc. (1977, CA5 Tex) 549 F2d 314, reh den (CA5 Tex) 554 F2d 1065 and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).

Roustabout injured while unloading pipe from barge was not seaman within meaning of Jones Act (46 USCS Appx § 688) where his time of employment was only 28 workdays of which only one was at sea and where employee had never journeyed with any vessel to its destination to unload cargo and had never eaten or slept on board any vessel. Stokes v B. T. Oilfield Services, Inc. (1980, CA5 La) 617 F2d 1205.

Welder's helper injured while repairing offshore structure had permanent connection with vessel in navigation for purposes of establishing his status as seaman, where helper spent approximately 70 to 80 percent of his time on jack-up barge positioned alongside caisson that provided work area for crew, and where caisson was entirely isolated structure too small to accommodate workers on it. Barrett v Chevron, U.S.A., Inc. (1985, CA5 La) 752 F2d 129, different results reached on reh, en banc (CA5 La) 781 F2d 1067.

Permanent connection requirement for seaman status was satisfied by evidence that machinist repaired equipment while aboard car ferries sailing between ports and performed almost all duties aboard vessel. Petersen v Chesapeake & O. R. Co. (1986, CA6 Mich) 784 F2d 732.

Sanitation worker who was injured at sanitation barge unloading facility may maintain action against city under 46 Appx USCS § 688, where worker served as member of digger gang whose duties included attaching and detaching boatlines of, fighting fires on, and cleaning up loaded and unloaded barges, because whether worker was seaman under § 688 is question of fact since case law does not unequivocally require that seaman be substantially connected to vessel or group of vessels as opposed to being connected to vessel or group of vessels on steady basis. Buccellato v New York (1992, ED NY) 808 F Supp 967.

122. Nature of work

Whether person is "seaman" within meaning of 46 USCS Appx § 688 depends largely on facts of particular case and activity in which he was engaged at time of injury. Desper v Starved Rock Ferry Co. (1952) 342 US 187, 96 L Ed 205, 72 S Ct 216, reh den 342 US 934, 96 L Ed 695, 72 S Ct 374.

Work done by employee is crucial in determining whether his status is such as to permit recovery for personal injuries in action under 46 USCS Appx § 688. Braen v Pfeifer Oil Transp. Co. (1959) 361 US 129, 4 L Ed 2d 191, 80 S Ct 247.

Worker is not considered to be "seaman" under Jones Act simply because worker is doing seaman's work at time of injury; seaman status under Jones Act is not coextensive with seamen's risks. Chandris, Inc. v Latsis (1995, US) 132 L Ed 2d 314, 115 S Ct 2172, 95 CDOS 4499, 95 Daily Journal DAR 7769, 17 BNA OSHC 1257, 1995 AMC 1840.

Employee's prior work history with particular employer may not affect inquiry whether employee is seaman under 46 USCS Appx § 688(a), if employee was injured on new assignment with same employer which involved different essential duties from previous assignments; inquiry into nature of duties for seaman-status purposes may concentrate on narrower, not broader, period than entire course of employment with current employer. Harbor Tug & Barge Co. v Papai (1997, US) 137 L Ed 2d 800, 117 S Ct 1535, 97 CDOS 3507, 97 Daily Journal DAR 6021, 1997 AMC 1817, 10 FLW Fed S 433.

One who works aboard ship is usually considered seaman if his duties are essential to some purpose of vessel; work need not be in actual aid of navigation. Lewis v Roland E. Trego & Sons (1974, CA4 Md) 501 F2d 372.

Issue of injured worker's status as "seaman" should be addressed with reference to nature and location of occupation taken as whole; fact that worker may have been injured aboard vessel while performing task that would normally be handled by member of ship's crew is not alone determinative of "seaman" status. Longmire v Sea Drilling Corp. (1980, CA5 La) 610 F2d 1342, reh den (CA5 La) 615 F2d 919.

Once it is established that worker is seaman, it is not necessary that task he performs at time he is injured be related to service of vessel. Savoie v Otto Candies, Inc. (1982, CA5 La) 692 F2d 363, 12 Fed Rules Evid Serv 269.

To qualify as seaman under 46 USCS Appx § 688, claimant must be permanently assigned to or perform substantial part of his work on vessel, and capacity of his employment must contribute to function of vessel, its mission, operation, or its welfare. Wallace v Oceaneering International (1984, CA5 La) 727 F2d 427.

Worker claiming seaman status under 46 USCS Appx § 688 must establish that he is assigned permanently to vessel in navigation or performs substantial part of his work on vessel or fleet of vessels, and that his work contributes to function of vessel or to accomplishment of its mission. Lormand v Superior Oil Co. (1987, CA5 La) 845 F2d 536, 1988 AMC 2362, cert den (US) 98 L Ed 2d 774, 108 S Ct 739, 1988 AMC 2400.

Claimant may not recover under Jones Act (46 USCS Appx § 688), where, in 2-year period prior to accident, he had been out on yawl not more than half-dozen times, and was only one of number of persons that owner called on to crew vessel, even though owner may have promised to include him in trans-Pacific voyage in future, because claimant is not seaman since his connection to yawl was not substantial in terms of its duration or nature. Xanadu Maritime Trust v Meyer (1998, ND Cal) 21 F Supp 2d 1104, 99 Daily Journal DAR 2933.

Self-employed compass adjuster was not seaman under 46 USCS Appx § 688 because his connection with vessel was temporary. Lotzman v Oxyness Shipping Co. (1978) 93 Misc 2d 461, 402 NYS2d 964.

123. --Particular duties

Decedents whose duties consisted of spreading and leveling gravel in barges, where it was deposited by conveyer belt from dredge, and who lived on dredge boat along with rest of men employed, not being required to live aboard, but not being charged anything for their quarters or board, were members of crew and entitled to recovery under 46 USCS Appx § 688. Wilkes v Mississippi River Sand & Gravel Co. (1953, CA6 Tenn) 202 F2d 383, cert den 346 US 817, 98 L Ed 344, 74 S Ct 29.

In action by structual welder on offshore construction job who was injured while attempting to lift padeye used in salvage of offshore drilling platform, summary judgment for defendant is improperly granted where genuine issue of fact exists as to whether structural welder working aboard derrick barge performed work which constributed to function of barge and whether he is "permanently assigned" to fleet of derrick barges operated by defendant. Ardoin v J. Ray McDermott & Co. (1981, CA5 La) 641 F2d 277, reh den (CA5 La) 646 F2d 566 and later app (CA5 La) 684 F2d 335, 11 Fed Rules Evid Serv 843.

Under Jones Act, plaintiff's status as seaman is determined at time of injury; determination of machinist's status as seaman at time of his exposure to asbestos was not error since injury in asbestos-related cases occurs when asbestos fibers are inhaled even though injury does not manifest itself as asbestosis until many years later. Petersen v Chesapeake & O. R. Co. (1986, CA6 Mich) 784 F2d 732.

Rule that status of employee whose regularly assigned duties require him to divide his time between vessel and land is to be determined in context of his entire employment with his current employer applies unless employee's permanent job assignment has changed during course of employment by his present employer. Lormand v Superior Oil Co. (1987, CA5 La) 845 F2d 536, 1988 AMC 2362, cert den (US) 98 L Ed 2d 774, 108 S Ct 739, 1988 AMC 2400.

Employee was Longshore and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.) longshoreman rather than Jones Act (46 USCS Appx § 688) seaman when injured because he was promoting loading and unloading of cargo when injured and for 2 months preceding injury spent only 2 days engaged in seaman's work and remaining days on shore conducting vessel repairs. Chauvin v Sanford Offshore Salvage, Inc. (1989, CA5 La) 868 F2d 735, 1989 AMC 1380.

Dismantling of crane was not operation involving loading of cargo when crane had not yet become cargo, because it was not yet in course of being loaded on barges in its component parts; therefore, dismantling of crane under such circumstances was not in nature of work traditionally performed by seamen, but was rather work performed by riggers or shoreside workers. Re Smith-Rice #4 (1968, DC Cal) 323 F Supp 44.

In personal injury action brought by power plant operator against employer under Jones Act (46 USCS Appx § 688) and general maritime law arising out of injury to plaintiff while temporarily assigned to one of defendant's fixed drilling platforms, plaintiff is seaman within meaning of Jones Act (46 USCS Appx § 688) where plaintiff's normal job assignment is on submersible drilling platform designed to be towed from drilling position to drilling position, where plaintiff is temporarily assigned to fixed drilling platform, and where plaintiff is to be transferred to movable drilling platform as soon as feasible; movable drilling platforms are vessels for purposes of Act whereas permanently fixed platforms are not, and once it is established that worker is seaman, Act permits worker to recover for injuries received while off vessel, and temporary assignment of plaintiff to fixed platform does not divest him of status as seaman. Wilkerson v Teledyne Movible Offshore, Inc. (1980, ED Tex) 496 F Supp 1279.

Welder employed as platform based worker who occasionally utilized vessel for purposes of transportation to work site is not seaman since he has no duties regarding operation and maintenance of vessel, but is part of welding crew not crew of vessel. Welch v Elevating Boats (1981, ED La) 516 F Supp 1245.

There is evidentiary basis for case to go to jury on issue of plaintiff's seaman status if (1) there is evidence that injured workman was assigned permanently to vessel, including special purpose structures not usually employed as means of transport by water but designed to float on water, or performed substantial part of his work on vessel and (2) capacity in which he was employed contributed to function of vessel or to accomplishment of its mission or to operation of welfare of vessel in terms of its maintenance during its movement or during anchorage for its future trips. Yelverton v Mobile Laboratories, Inc. (1985, SD Miss) 608 F Supp 400, affd (CA5 Miss) 782 F2d 555.

Injured worker does not state claim under 46 USCS Appx § 688, where worker performed tests on pipe and oil field casings, spent less than 10 percent of his time on vessels, and was never permanently assigned to any vessel or identifiable fleet of vessels, because worker is not "seaman," notwithstanding that he was injured while on ship near offshore drilling platform. Bailey v Global Marine, Inc. (1989, SD Tex) 714 F Supp 235.

Injured diver is "seaman" entitled to bring claim under Jones Act (46 USCS Appx § 688), where diver logged total of 69 hours over course of 3-week period as member of dive team on tugboat used to transport workers and as station for underwater work of replacing submarine hose at oil refinery just prior to suffering "bends" while on dive for project, because nature of his work and its dependence on vessel satisfy "permanent connection with vessel" prong of seaman test. Kjar v American Divers (1991, DC Hawaii) 851 F Supp 388, 1994 AMC 522.

Barge pilot who was injured while piloting barge by excavator operator is seaman under Jones Act, where although pilot spent only one-fourth to one-fifth of his time piloting barge, during that time he alone was responsible for navigation and operation of barge, because pilot spent substantial amount of time performing traditional seaman's duties that would normally be performed by crew member. Viator v Gordon's Trucking Co. (1995, WD La) 875 F Supp 369.

Offshore worker was not "seaman" under 46 USCS Appx § 688, where worker performed duties as gauger and operator on wells and platforms, but worker often was transported by crew boat to wells or platforms to perform his job, and fact that worker sometimes piloted crew boats and performed some routine maintenance on them did not establish that he did substantial amount of his work on vessel. Borne v Vintage Petroleum (1996, SD Tex) 949 F Supp 492.

124. Location of work

Land-based workers are not included in class of seamen for purposes of Jones Act or general maritime law. Chandris, Inc. v Latsis (1995, US) 132 L Ed 2d 314, 115 S Ct 2172, 95 CDOS 4499, 95 Daily Journal DAR 7769, 17 BNA OSHC 1257, 1995 AMC 1840.

To qualify for 46 USCS Appx § 688 benefits, injured worker must be on more or less permanent assignment to vessel or performing substantial part of his work aboard vessel. Tipton v Socony Mobil Oil Co. (1963, CA5 Tex) 315 F2d 660, vacated on other grounds 375 US 34, 11 L Ed 2d 4, 84 S Ct 1, reh den 375 US 936, 11 L Ed 2d 268, 84 S Ct 328; Stafford v Perini Corp. (1973, CA1 Mass) 475 F2d 507; Dugas v Pelican Constr. Co. (1973, CA5 La) 481 F2d 773, cert den 414 US 1093, 38 L Ed 2d 550, 94 S Ct 724.

Plaintiff who was shore-based worker hired by independent contractor to do special job in hold of vessel and not employed by owner of vessel is not any sense permanently attached to that vessel and lacks status necessary to sue vessel owner under Jones Act, 46 USCS Appx § 688. Thomas v Peterson Marine Service, Inc. (1969, CA5 La) 411 F2d 592, cert den 396 US 1006, 24 L Ed 2d 499, 90 S Ct 562.

Although worker does not forever remain seaman solely by virtue of having once been one, it does not follow that seaman automatically loses his status when he is temporarily assigned by his employer to duties off vessel; he retains his status so long as he performs substantial part of his work on vessel. Higginbotham v Mobil Oil Corp. (1977, CA5 La) 545 F2d 422 (disagreed with Smith v M/V Captain Fred (CA5 La) 546 F2d 119) as stated in Longmire v Sea Drilling Corp. (CA5 La) 610 F2d 1342, reh den (CA5 La) 615 F2d 919 and (disagreed with Steckler v United States (CA10 Colo) 549 F2d 1372, 38 ALR Fed 188 (disagreed with Smith v United States (CA3 Pa) 587 F2d 1013)) and revd on other grounds 436 US 618, 56 L Ed 2d 581, 98 S Ct 2010, on remand (CA5 La) 578 F2d 565 and reh den 439 US 884, 58 L Ed 2d 200, 99 S Ct 232 and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90) and (disapproved on other grounds Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523, 76 L Ed 2d 768, 103 S Ct 2541, on remand (CA3) 711 F2d 570).

Mechanic for drilling company who worked for several years aboard floating barge rig which was retired from service and at same time mechanic was reassigned to land rig where 3 weeks later he was injured was not a seaman at time claim arose. Smith v Nicklos Drilling Co. (1988, CA5 La) 841 F2d 598.

Under rule that one of criteria for determining whether individual is seaman under Jones Act is whether individual was assigned permanently to vessel, claimant can be permanently assigned to vessel without performing substantial part of his work on vessel. Allen v Mobile Interstate Piledrivers (1985, Ala) 475 So 2d 530.

Land-based maritime workers do not become seaman because they happen to be working on board vessel when they are injured, and seamen do not lose protection under 46 USCS Appx § 688(a) when course of their service to vessel takes them ashore. Schultz v Louisiana Dock Co. (2000, ED La) 94 F Supp 2d 746.

125. --Working on multiple vessels

In deciding whether there is identifiable group of vessels of relevance for purposes of determining whether employee is seaman under 46 USCS Appx § 688(a)--in that one requirement for seaman status is that employee have connection to vessel in navigation, or to identifiable group of such vessels, that is substantial in terms of both duration and nature--question is whether vessels are subject to common ownership or control. Harbor Tug & Barge Co. v Papai (1997, US) 137 L Ed 2d 800, 117 S Ct 1535, 97 CDOS 3507, 97 Daily Journal DAR 6021, 1997 AMC 1817, 10 FLW Fed S 433.

In action by injured employee of company which specialized in setting and removing casing pipe in oil rigs, summary judgment for employer is proper where, although employee is clearly performing duties essential to functions of oil rig, he fails to show any permanent assignment or performance of substantial part of his duties on either particular rig or any other specified group of vessels but has worked on 40 different rigs, 13 of which were non-vessel fixed platforms, 7 were on land and of remaining rigs he was on 13 only once and never returned to any specific rig more than three times. Guidry v Continental Oil Co. (1981, CA5 La) 640 F2d 523, 31 FR Serv 2d 443, cert den 454 US 818, 70 L Ed 2d 87, 102 S Ct 96 and (disapproved on other grounds Scindia Steam Navigation Co. v De Los Santos, 451 US 156, 68 L Ed 2d 1, 101 S Ct 1614) as stated in Helaire v Mobil Oil Co. (CA5 La) 709 F2d 1031.

Wire line engineer eligible to work on any one of 140 vessels and 67 platforms who in course of employment had worked on 30 different vessels was not permanently attached to nor performing substantial part of his work on identifiable group or fleet of vessels and therefore was not seaman. Ardleigh v Schlumberger, Ltd. (1987, CA5 La) 832 F2d 933.

Employer who hires men to work on water on vessels engaged in navigation and permits them to have permanent connection with vessel as to expose them to same hazards of marine service as those shared by all aboard should not be permitted to exculpate himself from responsibility for negligence under Jones Act, 46 USCS Appx § 688, on thesis that employees' duties were not confined to single ship but involved many ships. Mach v Pennsylvania R. Co. (1962, WD Pa) 207 F Supp 233, affd (CA3 Pa) 317 F2d 761.

Where plaintiff's connections with defendant's vessels was clearly sporadic and he failed to identify barge or group of barges to which he was regularly assigned or to which he had any degree of continuing responsibility, plaintiff is not "seaman" within meaning of 46 USCS Appx § 688. Baker v Pacific Far East Lines, Inc. (1978, ND Cal) 451 F Supp 84.

126. --Living off vessel

Employee was not more or less permanently connected with vessel where his presence on vessel was only for purpose of loading freighter and he ate and slept ashore. Salgado v M. J. Rudolph Corp. (1975, CA2 NY) 514 F2d 750.

It is not necessary that employee live aboard vessel in order to acquire status of seaman, he need only be more or less permanently attached to vessel. Chenevert v Clinch Drilling Co. (1967, ED La) 273 F Supp 943.

Fact that plaintiff was injured on pier was of no relevance with respect to his seaman's status under 46 USCS Appx § 688, and his seaman's status was not denied as matter of law because he lived, ate, and slept ashore. Mietla v Warner Co. (1975, ED Pa) 387 F Supp 937.

127. Place of injury

46 USCS Appx § 688 has provided right of recovery for seamen against their employers for negligence resulting in injury or death, right which follows from seaman's employment status and not limited to injury or death occurring on high seas. Moragne v States Marine Lines, Inc. (1970) 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906.

Seamen can recover under 46 USCS Appx § 688 for injury suffered in course of ship's services, whether on land or sea. Re Dearborn Marine Service, Inc. (1974, CA5 Tex) 499 F2d 263, 30 ALR Fed 499, reh den (CA5 Tex) 512 F2d 1061, and cert dismd 423 US 886, 46 L Ed 2d 118, 96 S Ct 163.

46 USCS Appx § 688 has no application where plaintiff was working on land at time he was injured. Seifort v Keansburg Steamboat Co. (1937, DC NY) 20 F Supp 542, 1937 AMC 821.

Seamen who are injured on shore while engaged in temporary or fill-in work for their employers are covered by Jones Act. Taylor v Packer Diving & Salvage Co. (1971, ED La) 342 F Supp 365, affd (CA5 La) 457 F2d 512, reh den (CA5 La) 471 F2d 650.

Once it is established that worker is seaman, Act permits worker to recover for injuries received while off vessel. Wilkerson v Teledyne Movible Offshore, Inc. (1980, ED Tex) 496 F Supp 1279.

Seaman is not entitled to recover under 46 USCS Appx § 688 for injury occurring on land, even though it occurred while unloading coal from barge to tipple, injured seaman being crane operator working about ninety feet from water's edge on railroad track. Nixon v Raymond City Coal & Transp. Co. (1939) 280 Ky 743, 134 SW2d 633.

128. --On dock or pier

Seaman injured on wharf on Puerto Rico while painting side of American vessel could not sue under 46 USCS Appx § 688, but was limited to workmen's compensation act of Puerto Rico, since such injuries occurring on land are under law of land. Esteves v Lykes Bros. S.S. Co. (1934, CA5 Tex) 74 F2d 364, cert den 295 US 751, 79 L Ed 1695, 55 S Ct 830.

So long as vessel is upon navigable waters, injured seaman may recover for injuries suffered while on wharf. Griffith v Wheeling Pittsburgh Steel Corp. (1975, CA3 Pa) 521 F2d 31, cert den 423 US 1054, 46 L Ed 2d 643, 96 S Ct 785.

Fact that plaintiff was injured on pier was of no relevance with respect to his seaman's status under 46 USCS Appx § 688. Mietla v Warner Co. (1975, ED Pa) 387 F Supp 937.

Plaintiff was not seaman within meaning of 46 USCS Appx § 688 where at time of injury he was shoreside worker, performing maintenance on docked vessels, and had been so employed for 3 to 4 months even though prior to this time he was employed as seaman aboard vessel. White v Louisiana Menhaden Co. (1980, ED La) 498 F Supp 126.

2. Employed on "Vessel in Navigation"

a. In General

129. Generally

Test for determining whether vessel is in navigation is status of ship. Roper v United States (1961) 368 US 20, 7 L Ed 2d 1, 82 S Ct 5.

In order for substantial-connection requirement for establishing employee's status as seaman under 46 USCS Appx § 688(a)--that is, employee must have connection to vessel in navigation, or to identifiable group of such vessels, that is substantial in terms of both duration and nature--to serve requirement's purpose, inquiry must concentrate on whether employee's duties take employee to sea. Harbor Tug & Barge Co. v Papai (1997, US) 137 L Ed 2d 800, 117 S Ct 1535, 97 CDOS 3507, 97 Daily Journal DAR 6021, 1997 AMC 1817, 10 FLW Fed S 433.

Ship is not in navigation, so far as definition of "seaman" is concerned, if there is no present hope or intention of having her go to sea and if it would take long time to put her in shape for ocean voyage. Carumbo v Cape Code S.S. Co. (1941, CA1 Mass) 123 F2d 991 (disagreed with Offshore Co. v Robison (CA5 La) 266 F2d 769, 75 ALR2d 1296 (disagreed with Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067))).

It is not necessary that vessel be in actual motion on navigable waters for 46 USCS Appx § 688 to apply. McKie v Diamond Marine Co. (1953, CA5 Tex) 204 F2d 132 (disagreed with Offshore Co. v Robison (CA5 La) 266 F2d 769, 75 ALR2d 1296 (disagreed with Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067))).

In 46 USCS Appx § 688 actions, whether vessel was in navigation is question for jury to decide. Garcia v Queen, Ltd. (1973, CA5 Fla) 487 F2d 625 17 FR Serv 2d 1593; Noack v American S.S. Co. (1974, CA6 Ohio) 491 F2d 937; Sweeney v American S.S. Co. (1974, CA6 Ohio) 491 F2d 1085.

"In navigation" element determining who is crewmember within 46 USCS Appx § 688 is used in broad sense, is not confined strictly to actual navigating or moving of vessel, but instead means that vessel is engaged as instrument of commerce or transportation on navigable waters. Griffith v Wheeling Pittsburgh Steel Corp. (1975, CA3 Pa) 521 F2d 31, cert den 423 US 1054, 46 L Ed 2d 643, 96 S Ct 785.

For purpose of determining "employment-related connection to vessel in navigation," court does not use "snapshot" test of situation existing only at time of injury; person who was not permanently assigned to vessel, who was land-based employee, and who spent, at most, 11 percent of his time on vessel was not covered under Jones Act. Easley v Southern Shipbuilding Corp. (1992, CA5 La) 965 F2d 1.

"Fleet," for purpose of Jones Act employment connection, is identifiable group of vessels acting together or under one control; "fleet" does not simply mean any group of vessels employee happens to work aboard. Campo v Electro-Coal Transfer Corp. (1992, CA5 La) 970 F2d 51.

In determining whether floating structure is "vessel in navigation" for purpose of Jones Act, Second Circuit will adopt test that determines whether structure was being used primarily as work platform during reasonable period of time immediately preceding accident, whether structure was moored or otherwise secured at time of accident, and whether any transportation function performed by structure was incidental to primary purpose as work platform. Tonnesen v Yonkers Contracting Co. (1996, CA2 NY) 82 F3d 30, 1996 AMC 1777.

Requirement that vessel be "in navigation" means only that it be actively performing water-based marine function at pertinent time. Brown v Stanwick International, Inc. (1979, Fla App D3) 367 So 2d 241.

130. Navigable waters

"In navigation" requirement arising under 46 USCS Appx § 688 is not confined to actual navigation or movement of vessel, but instead means that vessel is engaged as instrument of commerce or transportation on navigable waters. Griffith v Wheeling Pittsburgh Steel Corp. (1975, CA3 Pa) 521 F2d 31, cert den 423 US 1054, 46 L Ed 2d 643, 96 S Ct 785.

Reservoir is not navigable waterway for purpose of Limitation of Liability Act where it is entirely within state, was created for recreation and flood control, and is not accessible to vessels due to dam. Saahir v Collins (1992, CA5 Tex) 956 F2d 115.

Although Jones Act does not focus on location of vessel at time of injury, Jones Act jurisdiction still requires relationship to navigable waters; thus, ship with no connection to navigable waters is not source of Jones Act jurisdiction. Weaver v Hollywood Casino-Aurora, Inc. (2001, CA7 Ill) 255 F3d 379.

46 USCS Appx § 688 has no application to injuries sustained outside of navigable waters. Wahlgren v Standard Oil Co. (1941, DC NY) 42 F Supp 992, 1941 AMC 1788.

Vessel need not be engaged in navigation at precise moment when accident occurs; however, craft commonly thought of as vessel must be committed to navigation on navigable waters to be considered vessel for purposes of 46 USCS Appx § 688. Bernardo v Bethlehem Steel Co. (1961, SD NY) 200 F Supp 534, 5 FR Serv 2d 737, affd (CA2 NY) 314 F2d 604.

Cause of action under 46 USCS Appx § 688 requires presence of "navigable" body of water and "navigable" body of water must constitute part of continuous water system capable of sustaining interstate or foreign commerce; thus, landlocked lake wholly within one state upon which plaintiff was injured was not navigable within meaning of admiralty law. Oseredzuk v Warner Co. (1972, ED Pa) 354 F Supp 453, affd without op (CA3 Pa) 485 F2d 680, cert den 415 US 977, 39 L Ed 2d 873, 94 S Ct 1563.

131. --Particular waters

Accident occurring on dredge which operated in area exposed at low tide and for eight hours out of twelve, occurred in navigable water within meaning of 46 USCS Appx § 688. Gahagan Const. Corp. v Armao (1948, CA1 Mass) 165 F2d 301, cert den 333 US 876, 92 L Ed 1152, 68 S Ct 905.

Dredge surveyor working on dredge was not employed on vessel operating on navigable waters where waters were landlocked and used only for irrigation, although dredge floated on water and engaged in commercial activity. Stanfield v Shellmaker, Inc. (1989, CA9 Cal) 869 F2d 521.

Landlocked bayou cluttered with trees, water hyacinths and other vegetation, not, in fact, navigable even by smallest outboard motor boat is not navigable within meaning or intendment of 46 USCS Appx § 688. Ingram v Associated Pipeline Contractors, Inc. (1965, ED La) 241 F Supp 4.

Landlocked lake wholly within one state upon which plaintiff was injured was not navigable within meaning of 46 USCS Appx § 688. Oseredzuk v Warner Co. (1972, ED Pa) 354 F Supp 453, affd without op (CA3 Pa) 485 F2d 680, cert den 415 US 977, 39 L Ed 2d 873, 94 S Ct 1563.

Employee is not seamen within meaning of 46 USCS Appx § 688 where he was driving marsh buggy, amphibious personnel carrier, in marsh of depth of about 12 inches of water where marsh buggy, was not vessel traveling in navigable stream. Percle v Western Geophysical Co. (1981, ED La) 528 F Supp 227.

132. Effect of presence or absence of regular crew

Particular vessels were not in navigation for purposes of 46 USCS Appx § 688 where boats had neither captain or crew. Desper v Starved Rock Ferry Co. (1952) 342 US 187, 96 L Ed 205, 72 S Ct 216, reh den 342 US 934, 96 L Ed 695, 72 S Ct 374; Hawn v American S.S. Co. (1939, CA2 NY) 107 F2d 999; Antus v Interocean S.S. Co. (1939, CA6 Ohio) 108 F2d 185.

Vessels were in navigation for purposes of 46 USCS Appx § 688 where there were number of officers and men of normal crew on board, engine-room men being under orders and supervision of ship's officers, and regular sea watches being stood. Carumbo v Cape Cod S.S. Co. (1941, CA1 Mass) 123 F2d 991 (disagreed with Offshore Co. v Robison (CA5 La) 266 F2d 769, 75 ALR2d 1296 (disagreed with Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067))).

Vessel was "in navigation" under 46 USCS Appx § 688 when temporarily laid up because part of crew was on vacation and vessel was without doctor, but there was sufficient crew to navigate vessel. Alaska Dept. of Health v Alaska Industrial Board (1951, DC Alaska) 101 F Supp 171.

Vessel with respect to which plaintiff was hired as "able seaman" on day before his injury was not in navigation where, although vessel was afloat at time of injury, (1) vessel was reconstructed vessel which had not yet had sea trials, (2) only skeletal crew had been assembled as of day of injury, (3) delivery of completed vessel by contractor and acceptance by owners and insurers had not yet occurred, and (4) all efforts of crew members were designed to place vessel "in navigation." Bohlinger v Allied Tankships, Inc. (1985, ED Va) 613 F Supp 161.

b. Status of Vessel

133. Vessels at dock or anchor

Vessel may be actually employed in navigation, although temporarily at anchor, or in dock, if it remains in readiness for another voyage. United States v Lindgren (1928, CA4 Va) 28 F2d 725, affd 281 US 38, 74 L Ed 686, 50 S Ct 207; Rogosich v Union Dry Dock & Repair Co. (1933, CA3 NJ) 67 F2d 377.

Ship is in navigation although docked if it remains in readiness for another voyage. Carumbo v Cape Cod S.S. Co. (1941, CA1 Mass) 123 F2d 991 (disagreed with Offshore Co. v Robison (CA5 La) 266 F2d 769, 75 ALR2d 1296 (disagreed with Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067))).

Mere fact that vessel is moored to wharf or structure does not mean that it is not in navigation. Whittington v Sewer Constr. Co. (1976, CA4 W Va) 541 F2d 427.

Vessel may actually be employed in navigation although temporarily in dock. Gonzales v United States Shipping Board Emergency Fleet Corp. (1924, DC NY) 3 F2d 168.

Vessel was not laid up in the sense that it was not in navigation when it was temporarily tied up because part of crew was on vacation, but there was sufficient crew to navigate vessel and she was in condition to go to sea. Alaska Dept. of Health v Alaska Industrial Board (1951, DC Alaska) 101 F Supp 171,.

Vessel tied to landing dock due to strike of certain unions, upon which crew remained, was vessel for purposes of 46 USCS Appx § 688. Mroz v Dravo Corp. (1968, WD Pa) 293 F Supp 499, affd (CA3 Pa) 429 F2d 1156.

Vessels have often been held to be "in navigation" even though moored to dock. Baker v Pacific Far East Lines, Inc. (1978, DC Cal) 451 F Supp 84.

Fact that barge was moored at time of accident is irrelevant to its status as vessel under Jones Act. Allen v Mobile Interstate Piledrivers (1985, Ala) 475 So 2d 530.

Tuna fisherman employed to go upon high seas and who was actually aiding in preparation for voyage w