United States: 5th Circuit Declines To Use Period Of Employment With Borrowing Employer To Determine Seaman Status

This case is another example of the Fifth Circuit's approach to determining seaman status. On June 5, 2012, Plaintiff, Joseph Wilcox was involved in a welding accident in the Gulf of Mexico while decommissioning a fixed platform. As a result of his alleged injuries, Wilcox sued several entities, including his payroll employer, Max Welders, for negligence under the Jones Act. He also sued Wild Well Control, Inc., the contractor who hired Max Welders, for negligence under the Jones Act, unseaworthiness, and for "vessel negligence" under §905(b) of the LHWCA as a vessel owner, and he sued Wild Well's parent company, Superior Energy Services, Inc. for unseaworthiness.

During his employment with Max Welders, Wilcox worked in numerous locations, including a fabrication yard in Louisiana and on various rigs, barges, and vessels owned by Max Welders' customers. Wilcox conceded that during his entire employment with Max Welders, he spent less than thirty percent of his time in service of any one vessel or group of vessels. However, Wilcox argued, to determine his status, the court had to consider his period of employment with Wild Well, rather than his entire employment with Max Welders.

Wilcox argued, for the job in question, Wild Well had been hired to decommission the well, and Wild Well contracted with Max Welders to provide welders to assist. Wilcox was one of the welders sent to work on the job, which was expected to last for approximately two months. During this time, Wilcox was required to live on Wild Well's barge, the D/B SUPERIOR PERFORMANCE, which was on site at the well to provide support to the decommissioning work. Wilcox allegedly sustained injuries when gasses exploded while he was welding inside on the well platform. Wild Well admitted, at the time of the accident, Wilcox was its borrowed employee.

In declining to consider Wilcox's employment with Wild Well, the court relied on prior case law establishing the status of an employee who splits time between land and a vessel is determined in the context of his entire employment with his current employer. Barrett v. Chevron U.S.A., Inc., 781 F.2d 1067 (5th Cir. 1986). There is an exception to the general rule. If the employee "receives a new work assignment before his accident in which either his essential duties or his work location is permanently changed, he is entitled to have the assessment of the substantiality of his vessel-related work made on the basis of his activities in his new job." Barrett, 781 F.2d at 1075-76. However, the reassignment exception had previously been held to apply only when an employee had undergone a "substantial change in status," not simply by working on a boat sporadically. Becker v. Tidewater, Inc., 335 F.3d 376, 389 (5th Cir. 2003).

Wilcox was thus forced to concede the Barrett exception did not apply and instead asserted that he started a new job with a new employer when he began work as Wild Well's borrowed employee, making Wild Well his "current employer for the purposes of the seaman-status inquiry. Wilcox further maintained he spent more than thirty percent of his time with Wild Well aboard a vessel.

Wilcox did not, however, have any jurisprudential support that a borrowed employee can become a seaman with regard to his borrowing employer, and on appeal, the Fifth Circuit declined to adopt a rule that borrowed-employee status automatically requires courts look only to his period of employment with the borrowing employer. The court reasoned there was good reason to distinguish Wilcox from Wild Well's permanent employees. While employed by Max Welders, Wilcox worked for 34 different customers on 191 different jobs, both offshore and onshore. He was assigned to work for Wild Well on the D/B SUPERIOR for one specific project, which had a clear end date only two months after it began. Moreover, testimony indicated that, although crew would usually stay on a vessel for an entire job, they could request relief and leave the vessel before the job was complete. Focusing on the "essence of what it means to be a seaman," the court found that Wilcox had failed to demonstrate a genuine issue of material fact from which a reasonable jury could conclude that he qualified for seaman status under the Jones Act.

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