Who is a Seaman?
The United States Fifth Circuit Court of Appeals established a test for seaman status in Offshore Co., v. Robison, 266 F.2d (5th Cir. 1959). Under Robison, seaman status could be achieved:
- If there is evidence that the injured workman was assigned permanently to a vessel (including special purposes structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on a vessel; and
- If the capacity in which he was employed or the duties which he performed contributed to the function of the vessel, the accomplishment of its mission, or the operation or welfare of the vessel in terms of its maintenance during its movement or anchorage for its future trip. Offshore Co. v. Robison, 266 F.2d at 779.
Thus, under the Robison test, crew members who were regularly assigned to a special purpose vessel came to enjoy seaman status as a matter of law, whether or not they had anything to do with the transportation function of that vessel. Colomb v. Texaco, Inc., 736 F.2d 218 (5th Cir. 1984); McDermott Inc. v. Boudreaux, 679 F. 2d 452 (5th Cir. 1982); Marine Drilling Co., v. Austin, 363 F.2d 579 (5th Cir. 1966); Producers Drilling Co. v. Gray, 361 F.2d 432 (5th Cir. 1966).
Robison was the settled state of the law in the Fifth Circuit until the mid 1980's when the court began to have an increasingly narrow view of seaman status. In 1986, the Fifth Circuit revisited Robison en banc, and a divided court decided to significantly modify Robison by holding that the permanency requirement in the seaman status test had to be judged in the context of the plaintiff's various work sites during the entirely of his employment with that employer, rather than only during the work period when the casualty occurred. Barrett v. Chevron, U.S.A., 781 F.2d 1067 (5th Cir. 1986). Additionally, the Fifth Circuit in Barrett also tightened requirements for achieving seaman status via multi-vessel affiliation by demanding all such vessels had to be operated together or under common ownership or control.
In 1987, the Fifth Circuit denied seaman status to shore based claimants who performed tasks specifically enumerated in the Longshore Act, such as ship repairers. Pizzitolo v. Electro/Coal Transfer Corp., 812 F.2d 977 (5th Cir. 1987). Recently, however, the Supreme Court in Gizoni v. southwest Marine, Inc., 1125 S.Ct. 486 (1991), determined that employees who are in occupations specifically covered by the Longshore Act are nonetheless entitled to a jury trial to determine their status as Jones Act seamen.
In 1989, the fifth Circuit had occasion to decide Wilander v. McDermott International, Inc., 887 F2d 88 (5th Cir. 1989). In a unanimous opinion, the court expressly rejected McDermott's invitation to add a requirement to the seaman status test that the claimant must be aboard the vessel primarily to aid in navigation. In Wilander, the court affirmed the jury's determination of seaman status based on the Robison test. Wilander involved an American seaman who went to work for McDermott International in the Persian Gulf as a painter-sandblaster foreman. Once overseas, Wilander was assigned to the Derrick Barge Nine, which served as a "mother ship" for all operations conducted by McDermott in the Gulf and provided quarters for all crews in the area. Mr. Wilander was in charge of sandblasting and painting the many small stationary platforms operated by McDermott in the Gulf. To accomplish this mission, he was given the use of a paint boat, the M/V Gates Tide. Wilander was injured on one of these small platforms when a high pressure line exploded. The jury found Mr. Wilander was a seaman. By way of the Fifth Circuit, the case went up to the Supreme Court. The Supreme Court, in deciding Wilander, concluded that since the Jones Act was passed in direct response to the ruling of the Supreme Court in the Osceola, 189 U.S. 158 (1903) which denied a tort remedy to seamen, Congress had adopted the definition of that term in use a the time the Osceola was rendered. Having examined this jurisprudence, the Supreme Court determined that, at the time of the passage of the Jones Act, there was not a requirement that a seaman aid in navigation.
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