INTRODUCTION: Arnold Berschler was enlisted as co-counsel in a recent Jones Act case in New York State by a New York firm concentrating in “shore side” personal injury claims. Horrific injuries to a seafarer who worked weekends aboard for vessel interests while working weekdays in shoreside employment for another employer completely unrelated to vessel interests, and which second employer was not a party to the case. Attempting to thwart Plaintiff’s case, the vessel interests, in a motion for summary judgment, argued a novel interpretation of Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S. Ct. 2172 (1995). In this U.S. Supreme Court decision, the Court enunciated a mathematical guideline in analyzing the worker’s connection to a vessel or fleet to assist in determining which persons qualified to prosecute claims under the Jones Act, 46 U.S.C., sec. 30104, or for maintenance and cure (M&C) under the general maritime law (GML). Note that while the employer is the only party possibly liable for negligence under the Jones Act, it is the GML that makes the employer responsible for providing M&C. The Chadris Court held that to be qualified under the Jones Act, a person “[W]ho spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act. This figure of course serves as no more than a guideline established by years of experience, and departure from it will certainly be justified in appropriate cases.” Id., at 371, 115 S. Ct. at 2191.  New York vessel interests argued that when calculating 30% of employment, the time that Plaintiff worked for the unrelated shoreside employer also had to be included in total hours worked from which the 30% was to be calculated. Following is an abstract of the filed opposition to this argument. 

ARGUMENT ON THE LAW

           Standing: One Employer Only

           A seafarer may have only one employer for Jones Act purposes.

“However, "only one person, firm or corporation can be sued as an employer" under the Jones Act. Ballance v. Energy Transp. Corp., 2001 U.S. Dist. LEXIS 1673 (S.D.N.Y. Oct. 18, 2001) (quoting Cosmopolitan, 337 U.S. at 791.). An employer is one who has the power to "control, manage and direct the [Plaintiff] in the performance of the seaman's work." Jurgens v. Polling Transp. Corp., 113 F. Supp. 2d 388, 403 (E.D.N.Y. Sept. 19, 2000).”

Lippold v. Bvi Emp't, No. 05-CV-01936, 2008 U.S. Dist. LEXIS 141064, at *6 (E.D.N.Y. Apr. 14, 2008). The motion must fail because it cannot be determined which Petitioner is the employer, has standing.

            Movant Fails in Burden. The Employer, Not All Employers, is the Law’s Focus

Movant Brief. attempts to gloss over the crucial distinction that all its the case law – indeed all caselaw - involves one employer or group of related employers. Movant Brief. buries the issue in foot note 4 on page 7. Because the fundamental premises are incorrect, the facts in support (Naturalist versus crew; aggregating all work for disparate concurrent employers) are not material.

Plaintiff necessarily reviews crucial history in case law.

        The base upon which Movant Brief. “hangs its hat” is Chandris, Inc. v. Latsis, 515 U.S. 347 (1995). In that opinion the Supreme Court made very clear that the seafarer issue focus was in the context of working for a single employer or group of related employers.

We agree with the Court of Appeals that seaman status is not merely a temporal concept, but we also believe that it necessarily includes a temporal element. A maritime worker who spends only a small fraction of his working time on board a vessel is fundamentally land based and therefore, not a member of the vessel's crew, regardless of what his duties are. Naturally, substantiality in this context is determined by reference to the period covered by the Jones Act plaintiff's maritime employment, rather than by some absolute measure. Generally, the Fifth Circuit seems to have identified an appropriate rule of thumb for the ordinary case: A worker who spends less than 30 percent of his time in the service of  a vessel in navigation should not qualify as a seaman under the Jones Act. [Emphasis added.]

Id., 515 U.S. at 371; emphasis added. Yet, Movant Brief. chooses to focus on non-maritime employment. Chandris goes on to note:

As we have said, "the inquiry into seaman status is of necessity fact specific; it will depend on the nature of the vessel and the employee's precise relation to it." Wilander, 498 U.S. at 356

Ibid. All of Movants;’ cases address a single employer whose employee is essentially a shore-based worker randomly aboard the vessel for a short period. Becker v. Tidewater, Inc. , 335 F.3D 376, 390 (5^th Cir. 2003): an office intern briefly aboard a vessel during a multi-phase teaching, the vast majority of which occurred ashore and who did not contribute to vessel mission. Dimone v. City of New York, 2016 U.S. DIST. LEXIS 70769, 14 CIV. 9375, (AJP), AT *5-6 (S.D.N.Y. MAY 13, 2016) a port engineer checking on moored vessels to which he travelled to from his office. Griffith v. Martech Int'!, Inc., 754 F. Supp. 166, 169 (C.D. Cal. 1989); single employer of a diver. The cases upon which this rests have been overruled. See, e.g. Bullis v. Twentieth Century-Fox Film Corp., 474 F.2d 392, 393 (9th Cir. 1973).

In Harbor Tug & Barge Co. v. Papai, 520 U.S . 548 (1997), which followed Chandris, the Supreme Court again held that:

There was no suggestion of a need to examine the nature of an employee's duties with prior employers. See also id., at 367 ("Since Barrett [v. Chevron, U.S.A., Inc., 781 F.2d 1067 (CA5 1986) (en banc)], the Fifth Circuit consistently has analyzed the problem [of determining seaman status] in terms of the percentage of work performed on vessels for the employer in question"). The Court of Appeals majority interpreted the words "particular employer" outside the limited discussion in which we used them and, as a result, gave the phrase a meaning opposite from what the context requires

Id., at 554; emphasis added. Prior employment is not dispositive, and that rationale also applies to concurrent employment for a different non-maritime employer. See, Bell v. Dunn, 2004-2117 ( La. App. 4 Cir 12/8/00), 924 So. 2d 224, 232.

          Looking at Movant Brief’s citation Isrow v. "A Modo Mio ," 112 F. Supp. 2d 641,648 (E.D. Mich. Aug . 9, 2000), the court determined that a janitor who worked aboard only when the vessel was anchored, was a Jones Act seafarer.

 Part-time is no bar to seafarer status.

Defendants also argue that Plaintiff was not a seaman because he worked at most only on a part-time basis. Defs.' Opp'n at 7-8. Defendant cites no caselaw to support the proposition that a part-time employee cannot be a seaman. Indeed, the court finds no such requirement. See Lunsford v. Fireman's Fund Ins. Co., 635 F. Supp. 72 (E.D. La. 1986) (finding that a part-time cleaning lady aboard a docked pleasure yacht was a "seaperson" for purposes of the Jones Act). Further, to the extent that Defendants suggest that Plaintiff's connection with the vessel was only "transitory or sporadic," the court rejects this argument. The evidence presented establishes that Plaintiff "performed a significant part of his work on board the vessel on which he was injured, with at least some degree of regularity and continuity," satisfying the test for seaman status. See Chandris, 515 U.S. at 368-69; cf. Papai, 520 U.S. at 559 (finding that the twelve prior discrete working engagements the plaintiff had with the vessel, spanning over 2-1/4 years, were separate from the one in question such that his connection to the vessel [*19] was "transitory or sporadic" and plaintiff was not a seaman).

Keliihananui v. KBOS, Inc., No. 09-00151, 2010 U.S. Dist. LEXIS 50877, at *17-19 (D. Haw. May 24, 2010). 

This entry has been created for information and planning purposes.

It is not intended to be, nor should it be substituted for, legal

advice, which turns on specific facts.