Diver was seaman under Jones Act even though work-site vessels were not under employer's common ownership or control

Law Reporter, Aug 1999

Diver was seaman under Jones Act even though work-site vessels were not under employer's common ownership or control.

Wisner v. Professional Divers, _ So. 2d _, No.98-C1755, 1999 WL 105335 (La. Mar. 2, 1999).

The Louisiana Supreme Court held that a commercial diver was a seaman under the Jones Act, 46 U.S.C. 688, even though the vessels on which he worked were not under his employer's common ownership and control.

Here, a commercial diver was employed by a diving contracting company installing anodes and repairing pipelines on a fixed platform that was owned by an oil company. He became ill after a dive. Before this incident, he had worked for the contracting company for two years on approximately fourteen different vessels that were owned by twelve different companies.

The diver filed a petition alleging that he was a Jones Act seaman employed by the diving contractor at the time of his injury. The contractor moved for summary judgment, arguing that the diver was not a Jones Act seaman but rather a maritime worker who should be compensated under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. 901 etseq., a statute that is designed to address personal injury claims of landbased maritime employees. Under the Jones Act, a common law negligence action and an action for breach of warrant for unseaworthiness are both available to an employee. Under the LHWCA, however, an employee's options are more limited.

The trial court granted the contractor's motion, pointing out that the diver did not have a substantial connection to a vessel or fleet of vessels under common ownership. The appellate court affirmed.

Reversing, the state high court explained that whether the vessel or fleet of vessels was under an employer's common ownership is just one factor to be examined when determining whether an employee is a seaman under the Jones Act. Citing case law, the court said that plaintiff satisfied several other factors. First, the diver's work with the contractor was of substantial duration and was performed with the requisite degree of continuity and regularity. He was more than a land-based worker whose connection to the vessel was transitory. He had spent 90 percent of his work life with the contractor as a diver, during which time he ate and slept on the vessels and essentially made them his home. Second, plaintiff performed substantial duties that contributed to the vessel's function. Installing anodes and repairing pipelines were essential to the completion of the vessel's operation and its movement from one spot to another. Third, the nature of plaintiff's duties, the fact that he performed them underwater and routinely exposed himself to the hazards of the sea, clearly qualified plaintiff as a seaman.

Jones Act coverage should not be withheld because vessels are not under the employer's common ownership or control, the court ruled. When claimants are continuously subjected to the perils of the sea and engaged in classical seaman's work, employers should not be allowed to deny Jones Act coverage to seamen by arrangements with third parties regarding a vessel's operation or by the manner in which work is assigned.

Plaintiff's Counsel:

*James A. George, Baton Rouge, La.

[Comment For another case involving the issue of whether a commercial diver was a seaman under the Jones Act, see Foulk v. Donjon Marine Co., 42 ATLA L. Rep. 124 (May 1999). *David B. Winkler, Philadelphia, Pa., represented plaintiffs in that case.]