Jethro Barrett v. Chevron, U.S.A., Inc., E.B.B. Co., Inc. And Lift Barge, Inc. v. Maryland Casualty Company, Intervenor-Appellant , 781 F.2d 1067 ( 1986 )

ALVIN B. RUBIN, Circuit Judge,

with whom REAVLEY, POLITZ, TATE, JOHNSON and JERRE S. WILLIAMS, Circuit Judges join, dissenting from Part III of the opinion and the judgment of the Court:

The majority refused to determine an injured worker’s status as a crew member on the basis of what he was doing when he was injured, but insists that his status must be decided on the basis of what he did in the past, and holds in effect that, unless the worker’s “permanent job assignment” has changed, his duties and status at the time he is injured are irrelevant. In doing so it makes a profound change in the rights of offshore maritime workers who are injured when assigned to a vessel and exposed to the perils of the sea, and who are in every real sense crew members. I, therefore, dissent from Part III of the majority opinion.

The LHWCA repudiated Haverty and constricted Jones Act coverage: since its passage a worker is no longer a crew member simply because he is doing a seaman’s work at the moment of his injury. The Robison test conforms to that command; it requires the fact finder to distinguish between a worker who performs a substantial part of his work on a vessel and a worker who, even though he is doing tasks normally done by a crew member, has only a transitory connection with a vessel. Connection with a vessel is, of course, essential to crew-member status, no matter what the nature of the worker’s duties, and the connection must either be permanent or sufficiently close and continued to warrant the conclusion that he is not merely doing work that the crew would do but is himself a member of the crew.

In the case of offshore workers who customarily work hitches of definite but limited duration, such as seven or fourteen days, the fact finder must, of course, consider the totality of the worker’s duties during the entire term of his employment, but this should not be dispositive. If the worker’s duties have been changed during the course of his employment, the nature of his duties during the hitch on which he was injured is also important in determining whether he was at that time a crew member or simply a worker doing occasional maritime duties. To qualify as a crew member for the hitch during which he was injured, the worker must show that his vessel-related activities required performance of his work aboard ship with “... some degree of regularity and continuity,” ¹ and that the change in his duties involved “a regular and continuous, rather than intermittent, commitment of the worker’s labor to the ‘function of the vessel, its mission, its operation, or its welfare.’ ”² It suffices, however, that he show such an assignment for an entire period of work. The majority’s requirement that such a change reflect a “permanent” change in job assignment is inflexible and contrary to the rationale underlying Robison.

The status of maritime workers, other than offshore workers scheduled for periodic hitches, should be decided in like manner. The assignment of a worker who is not usually a crew member may be changed, and he may be ordered by his employer to work aboard a vessel for a period of limited duration. His status as a crew member, vel non, should be determined by considering the transitory duration or fixed term of the assignment, the nature of his duties during it, and the relationship of those duties to the mission of the vessel. Thus a fact finder might find that an anchor handler who is assigned to work on a specific vessel for a period of days is a crew member during that assignment. A worker may also be assigned to work as a crew member for a series of voyages of limited duration. A fact finder might, therefore, find that a person working as a pilot on a series of short voyages is a crew member on one or more voyages. An assignment to work as a crew member, like the voyage of a vessel, may be brief, and the Robison test is applicable in deciding the worker’s status during any such employment.

As an example, if a cook employed in a cafeteria on shore were assigned by his employer to a ship’s galley for a voyage of one or two weeks duration, he might be held to be a crew member during this voyage; if the same cook were sent aboard the vessel while it was in port to prepare one meal during the absence of the regular cook, the facts might not warrant the conclusion that his status had changed. The fact that an employee may have had some seaman’s duties during the hitch in which he was injured would not suffice to make him a crew member unless it represented both a change in his duties and an assignment to a vessel sufficient to satisfy Robi-son ’s test.

Determination of status on the basis of the work assignment at the time of injury might, but would not necessarily, result in a different conclusion in cases like Long-mire v. Sea Drilling Corp., but the decision in such cases should be made by the trier of fact, not by the summary judgment there rendered.³ Longmire was employed as a floorhand on an offshore drilling platform. He worked seven-day hitches and was off duty for seven days between each hitch. During his first two hitches, he worked almost exclusively aboard the platform. When he started his third hitch, however, the drilling rig was being dismantled for movement to another location and Longmire was assigned to stow equipment aboard a tender vessel. On the day he was injured, Longmire had spent his entire shift stowing anchor chains on the tender and was injured as he finished work. The fact finder might have concluded that Longmire was a platform worker transitorily assigned to a vessel, but there was sufficient evidence to warrant a different verdict, hence submission of the issue to the jury as a question of fact.

Seaman status is generally a question for the jury and should be left for the jury’s determination even when the claim to seaman status appears relatively marginal.⁴ Status should be decided as a question of fact and not by summary judgment unless there is no genuine dispute of material fact, and the uncontroverted facts inescapably determine status as a matter of law.

During the year Barrett worked as a welder’s helper in Chevron’s Bay Marchand Field, he spent twenty to thirty percent of his time working aboard vessels. However, during the hitch on which he was injured, he had been assigned continuously for the eight days preceding his injury to work from the D/B FALCON, renovating equipment on the small caisson. During this hitch, he spent as much as seventy percent of his work time aboard the vessel. If Barrett’s status is determined solely on the basis of his work assignments over the one-year period, he was not a crew member because he was not attached to a vessel or fleet of vessels during that period save for intermittent intervals. The fact finder, whether judge or jury, should, however, have considered in addition whether Barrett’s assignment during the fourteen-day hitch he was working when he was injured represented a change in the nature of his job, or whether it was an assignment of a transitory, impermanent nature during which his work aboard the vessel was incidental to primarily land-related duties.

The majority opinion correctly sums up the decision of the Supreme Court in Gianfala v. Texas Company,⁵ Senko v. La Crosse Dredging Corp.,⁶ Grimes v. Raymond Concrete Pile Co.,⁷ and Butler v. Whiteman.⁸ As all of these cases held, the status question is for the jury and status is determined by the worker’s assignment when he is injured, not by the general characterization of his work.

Because the question of crew-member status is a mixed question of law and fact,⁹ and because this case was tried to the court, the findings of the district court concerning Barrett’s status must be respected unless they are clearly erroneous.¹⁰ Although the district court did not apply the test I have suggested in this dissent, it would have reached the same result had it done so and the district court was not clearly erroneous in finding that Barrett was a crew member. I would, therefore, affirm.

1 . Longmire v. Sea Drilling Corp., 610 F.2d 1342, 1346 (5th Cir.1980) (quoting Keener v. Transworld Drilling Co., 468 F.2d 729, 732 (5th Cir.1972)).

2 . Longmire, 610 F.2d at 1347 n. 6 (quoting Beard v. Shell Oil Co., 606 F.2d 515, 517 (5th Cir.1979)).

3 . 610 F.2d 1342 (5th Cir.1980).

4 . See Prinzi v. Keydril Co., 738 F.2d 707, 708-09 (5th Cir.1984) and cases cited therein. See also Abshire v. Seacoast Products, Inc., 668 F.2d 832, 837 (5th Cir.1982); Senko v. La Crosse Dredging Corp., 352 U.S. 370, 374, 77 S.Ct. 415, 417, 1 L.Ed.2d 404, 408 (1957).

5 . 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed.2d 775 (1955).

6 . 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404 (1957).

7 . 356 U.S. 252, 78 S.Ct. 687, 2 L.Ed.2d 737 (1958).

8 . 356 U.S. 271, 78 S.Ct. 734, 2 L.Ed.2d 754 (1958).

9 . Hall v. Diamond M Co., 732 F.2d 1246, 1248 (5th Cir.1984).

10 . Fed.R.Civ.P. 52(a). See McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 7-8, 99 L.Ed. 20, 24 (1954); Dardar v. Louisiana State Dep’t of Highways, 447 F.2d 952, 953 (5th Cir.1971), cert. denied, 405 U.S. 918, 92 S.Ct. 943, 30 L.Ed.2d 788 (1972).