Naquin on the Door of a Circuit Split? Second Circuit Suggests Emerging Split from the Fifth Circuit Regarding Jones Act Seaman Status for Essentially Land-Based Employees

A circuit split may be emerging after the Second Circuit Court of Appeals’ unanimous decision in Matter of Buchanan Marine, L.P., – F.3d –, No. 16-1092 (2d Cir. Oct. 27, 2017) (Kearse, Cabranes, Chin, J.) affirming a New York district court’s denial of seaman status for a barge worker who inspected and repaired moored barges used to transport quarried rock from a processing facility down the Hudson River.

The plaintiff in Buchanan Marine worked as a “barge maintainer” at the defendant-employer’s (Buchanan) processing facility on the Hudson River in Dutchess County, New York, and was in charge of inspecting and repairing barges before and after the barges were loaded with rock.  During inspections, the barges were always in the water and either moored directly to the dock or fleeted together with other barges moored to the dock.  If a barge required repairs, the plaintiff would occasionally board a pontoon boat to do the work.  The plaintiff was injured when he slipped while walking along the narrow “margin decks” on a barge and sued Buchanan seeking damages as a Jones Act seaman.  He also brought claims under the LHWCA, general maritime law, and New York state law against Buchanan (as his employer and charterer of the vessel), A.P. Franz, Jr. (the vessel owner) and Tilcon New York, Inc. (the operator of the processing facility).

In arguing that he was a Jones Act seaman, the plaintiff relied heavily on the Fifth Circuit’s decision in Naquin v. Elevating Boats, LLC, 744 F.3d 927 (5th Cir. 2014), cert. denied 135 S. Ct. 1397 (2015).  As previously reported here and here, in Naquin, the Fifth Circuit expanded the scope of Jones Act seaman status to include a land-based shipyard worker who spent 70% of his time working aboard vessels (usually moored to the shipyard’s dock, and only very occasionally while the vessels were being repositioned or on sea-trials), and the remaining 30% of his time working in a fabrication shop or on a land-based crane.

The Buchanan Marine plaintiff, like the Naquin plaintiff, was essentially a land-based employee who spent time on moored vessels.  He was not assigned to any specific barge; only worked on barges secured to docks; was not a crew member of any tugboat that transported barges down the river; worked an hourly shift and commuted to/from the Buchanan facility each day; and did not eat or sleep on the barges.  Finally, the plaintiff reported to the dock foreman (not a ship’s officer), was a member of the International Union of Operating Engineers (representing non-seaman equipment operators) and did not belong to a maritime union or hold a maritime license.

The Second Circuit Court rejected the plaintiff’s argument under Naquin and drew a somewhat strained distinction between the work of the Buchanan Marine plaintiff and that of the Naquin plaintiff.  The Second Circuit reasoned that the shipyard worker in Naquin “clearly had a more substantial connection to seafaring vessels[,]” putting great weight in the fact that the Naquin plaintiff operated vessels’ marine cranes and jack-up legs and “occasionally” worked aboard vessels in open water.

Analyzing the “total circumstances” of the Buchanan Marine plaintiff’s employment under the two-prong Chandris test (contribution to vessel/fleet function/mission, substantial connection in duration and nature to vessel/fleet in navigation), the Buchanan court found that the plaintiff’s work did not regularly subject him to “perils of the sea,” and that he was not a Jones Act seaman as a matter of law.

The Second Circuit’s distinction between the Buchanan Marine plaintiff and the Naquin plaintiff seems fairly strained, and thus a circuit split appears to be emerging as to Jones Act seaman status for certain essentially land-based employees.  Further, it is noteworthy that the Fifth Circuit’s Naquin decision affirmed a jury’s seaman status determination after trial, on the basis that the evidence “supported the jury’s implicit finding” of seaman status; whereas the Second Circuit’s Buchanan decision affirmed a district court’s grant of summary judgment on seaman status.  Thus, the Second Circuit effectively treated the seaman status question as a purely legal concern for the district court that should not even have been presented to a jury.  Given the practical irreconcilability of (or at the very least tension between) Naquin and Buchanan Marine, it is possible that the Supreme Court may grant a writ of certiorari should the Buchanan Marine plaintiff seek review, particularly in light of the writs of certiorari filed and awaiting (highly anticipated) grant/denial decisions by the Supreme Court  in the extremely controversial cases of Tabingo v. American Triumph, LLC, and Touchet v. Estis Well Service, LLC (previously discussed here on this blog),  regarding whether punitive damages are available to a Jones Act seaman for general maritime law claims (even though they are barred under the Jones Act itself).