Maritime Proctor Blog

About two months ago, I took my family on a Spring Break vacation to Estes Park, Colorado.  Up a hill and behind the Safeway in Estes Park was a large hotel, which I learned is the Stanley Hotel.  Built by the family that started Stanley Steamer, this hotel served as Stephen King’s inspiration for the Overlook Hotel, which is the setting of his 1977 novel The Shining.  Here is a photo I took of the Stanley Hotel on our trip.

Cinephiles know the late Stanley Kubrick was as an absolute perfectionist director.  For example, during the filming of the 1980 movie adaptation of The Shining, Kubrick required 127 takes of the “staircase” scene where Shelly Duvall’s character, Wendy Torrance, realizes her husband, Jack Torrance (played by Jack Nicholson), is absolutely insane.[1] 

But, it is not even the most shot scene of that movie!  The Guinness Book of World Records indicates the most shot scene (with dialog) is the “shine” scene, where Dick Hallorann (played by Scatman Crothers) talks about the ability to “shine” (or use psychic powers to communicate with others as well as see both the past and the future) with Danny Torrance (played by Danny Lloyd).  That scene took one hundred forty eight takes.[1]

Sometimes an extremely large number of takes are necessary to get something right.  Any attorney drafting a key motion or appellate brief likely empathizes with this statement.  The common law – judge made law, as opposed to statutory law - is no different. 

The General Maritime Law of the United States (“GML”) is the last remaining vestige of federal common law.  Even after Erie R.R. Co. v. Tompkins,[1] federal courts have the power (in the absence of congressional statutes) to craft aspects of the GML that apply (in theory) to all 50 states.  The Supreme Court of the United States (“SCOTUS”) rarely speaks on the issue of seaman’s status – the last major decision came during the Clinton Administration – so lower courts are often left to wade through extremely muddy waters.

I’ve waded into these waters before.  In 2016, Jeremy Newell and I presented a paper at the 24^th Annual University of Texas Admiralty & Maritime Law Conference on the issue of seaman’s status.[2]  I also wrote on the subject in 2015 for Texas Lawyer.[3] 

What is a Seaman & Why are They Important?

A seaman is, basically, a maritime worker that is the master or member of the crew of a vessel.[1]  It sounds easy, but in the practice of our courts it seems many takes were/are/will be necessary to figure out exactly who that is.

Seamen receive special protection under the Jones Act[2] and the GML.  Under the former, a seaman has the ability to sue their employer directly for negligence, with an extremely broad duty of care on the part of the employer and a reduced causation standard of contributing cause.  With respect to the latter, a seaman can also bring a separate claim for maintenance and cure benefits against their employer, as well as sue the vessel owner for unseaworthiness.

Seamen receive these special protections because of the analysis in Harden v. Gordon, an 1820 decision where Supreme Court Associate Justice Joseph Story, while riding circuit, stated that seamen:

… are generally poor and friendless, and acquire habits of gross indulgence, carelessness, and improvidence.  If some provision not be made for them in sickness at the expense of the ship, they must often in foreign ports suffer the accumulated evils of disease, and poverty, and sometimes perish from the want of suitable nourishment.  Their common earnings in many instances are wholly inadequate to provide for the expenses of sickness; and if liable to be so applied, the great motives for good behavior might be ordinarily taken away by pledging their future as well as past wages for the redemption of the debt. In many voyages, particularly those to the West Indies, the whole wages are often insufficient to meet the expenses occasioned by the perilous diseases of those insalubrious climates. On the other hand, if these expenses are a charge upon the ship, the interest of the owner will be immediately connected with that of the seamen. The master will watch over their health with vigilance and fidelity. He will take the best methods, as well to prevent diseases, as to ensure a speedy recovery from them. He will never be tempted to abandon the sick to their forlorn fate; but his duty, combining with the interest of his owner, will lead him to succor their distress, and shed a cheering kindness over the anxious hours of suffering and despondency. [3]

Despite this ringing endorsement of the profession, going to sea is still a highly lucrative profession, especially for American seafarers. 

The Seaman’s Status Test

Even though the Jones Act provides seamen with the negligence remedy … the Act does not define what a seaman is.  Thus, over the years, SCOTUS developed a test to determine which maritime workers qualify to be seamen. 

The last four major SCOTUS Seaman’s Status decisions – all of which are old enough to drink, smoke, vote, and enlist in the military – are:

• The 1991 decisions of McDermott International, Inc. v. Wilander[1] and Southwest Marine, Inc. v. Gizoni;[2]
• The 1995 decision in Chandris, Inc. v. Latsis;[3] and
• The 1997 decision in Harbor Tug and Barge Co. v. Papai.[4]

The synthesis of those cases results in a basic test applied by lower courts. The Seaman’s Status test requires analysis of the following two queries:

(1) did the employee’s duties at the time of the incident, contribute to the function of the vessel or accomplishment of its mission; and

(2) was the employee’s connection, if any, to the vessel (or an identifiable fleet of vessels) substantial in terms of both duration and nature.[5] 

Mr. Newell and I wrote in 2016 that:

Indeed, as recent cases demonstrate, the determination of who is and is not a seaman can turn on minute facts, when the overall body of evidence shows little practical difference between one worker classified as a seaman and another who is simply a land-based maritime laborer.[6]

The more things change, the more they stay the same.

The Saga of Gilbert Sanchez

Gilbert Sanchez (“Sanchez”) worked for Smart Fabricators of Texas, LLC (“SFT”) as a welder.[1]  SFT assigned Sanchez to weld on different vessels for various customers of SFT, one of whom was Enterprise Offshore Drilling, LLC (“Enterprise”).[2]

-1-    Procedural History

There are two district court opinions and three (technically four) Fifth Circuit opinions relating to the saga of Sanchez.  They are as follows:

Sanchez I –         Sanchez v. Enterprise Offshore Drilling, LLC & Smart Fabricators of Texas, LLC, 376 F. Supp. 3d 726 (S.D. Tex. March 25, 2019), wherein the district court denied Sanchez’ Motion to Remand;

Sanchez II –        Sanchez v. Enterprise Offshore Drilling, LLC & Smart Fabricators of Texas, LLC, 2019 U.S. Dist. LEXIS 101436; 2019 WL 2515307 (S.D. Tex. June 18, 2019), wherein the District Court granted the defendants’ Motion for Summary Judgment;

Sanchez III–       Sanchez v. Smart Fabricators of Texas, LLC, 950 F.3d 620 (5^th Cir. March 11, 2020), where a panel of the Fifth Circuit affirmed Sanchez I and Sanchez II;

Sanchez IV –       Sanchez v. Smart Fabricators of Texas, LLC, 970 F.3d 550 (5^th Cir. August 14, 2020), where a different panel of the Fifth Circuit vacated Sanchez III, reversed the trial court on both Sanchez I and Sanchez II, and remanded the case with instructions … but also in a 3 judge concurrence asked the Fifth Circuit to take the case en banc to clarify the seaman’s status test;

Sanchez V – Sanchez v. Smart Fabricators of Texas, LLC, 978 F.3d 976 (5^th Cir. 2020), wherein the Fifth Circuit granted an en banc rehearing and vacated Sanchez IV.

Sanchez VI – The May 11, 2021 en banc decision where the full Fifth Circuit, with no dissent, modified the seaman’s status test and ultimately affirmed Sanchez I, II, and III.

-2-    Operative Facts

From these opinions, we know the following facts. 

According to the trial court’s record, most of Sanchez’ time aboard Enterprise vessels happened on a jack-up rig – the Enterprise WFD 350 – that was adjacent to a dock for repairs.[3]  Sanchez worked for SFT for a total of 67 days, with 48 of them on the Enterprise WFD 305, 2 days in a land-based shop, and 13 days on the Enterprise 263 while that vessel was on the Outer Continental Shelf (“OCS”).[4] 

Enterprise and SFT presented evidence that the Enterprise WFD 350 was, for the totality of Sanchez’ time on it, both jacked up above water and literally two steps away from the dock.[5]  Sanchez did not sleep on the Enterprise WFD 350, and only performed discrete tasks, after which his affiliation with that particular vessel ended.[6]

Sanchez tripped on a pipe and injured his back in August 2018 while working aboard the Enterprise 263 while it was jacked up on the OCS.[7]  Sanchez sued Enterprise as a Jones Act seaman, claiming he satisfied all aspects of the aforementioned Seaman’s Status test, and did so in state court under the Saving to Suitors clause.[8]

The District Court first confronted the seaman’s status issue in Sanchez I as to whether Enterprise could remove the case.  The 2006 Fifth Circuit decision of Holmes v. Atlantic Sounding Co. clearly holds a properly pled Jones Act case cannot be removed due to the protection of the Saving to Suitors clause.[9]  But, if the plaintiff is not a Jones Act seaman, the case can be removed.[10]  Likewise, a state-court maritime tort case where the tort occurs on the OCS is removable under federal question jurisdiction due to the existence of the OCS Lands Act (“OCSLA”).[11]

Judge Rosenthal, in two well-reasoned opinions, first held Enterprise properly removed the case,[12] and later granted a summary judgment in Sanchez II on seaman’s status[13] to the defendants.  The crux of both decisions turned on the Court’s analysis of the second prong of the seaman’s status test, known as the duration and nature connection test.  In both instances, the trial court determined Sanchez did not satisfy the “substantial in nature” requirement because his duties did not actually expose him to the perils of the sea.[14]

In doing so, the trial court distinguished a 2014 Fifth Circuit decision, Naquin v. Elevating Boats, LLC,[15] in which the Fifth Circuit held a vessel repair superintendent was a Jones Act seaman (affirming a jury finding of seaman’s status) despite working on vessels that very rarely, if ever, went to sea.[16]  In other words, the Naquin majority found the plaintiff in that case satisfied the substantial duration and nature requirements of the second part of the Seaman’s status test despite very little difference between his exposure to the perils of the sea and the exposure of a longshoreman to those same perils.[17]

Justice Davis wrote the Naquin opinion for a three-judge panel consisting of himself, Justice Jones, and Circuit Judge Milazzo.  Justice Davis relied upon the Fifth Circuit’s 2000 decision of In re Endeavor Marine, LLC,[18] wherein on a case with similar facts, seaman status existed for a crane operator that primarily worked on vessels afloat at a dock or inland waters.  

Justice Jones dissented in Naquin.  She did not believe the plaintiff was a seaman because he lacked a connection to a fleet of vessels of both a substantial duration and nature.[19]  Specifically, Justice Jones saw no difference between the perils Naquin experienced and those of a longshore worker covered by the LHWCA.[20]

The Panel Fifth Circuit Opinions

Sanchez appealed both of Judge Rosenthal’s orders.  Originally, a three-judge panel of Justices Higginbotham, Ho, and Engelhardt ruled unanimously in Sanchez III that Judge Rosenthal was correct.  Essentially, the Fifth Circuit precedent in Naquin could be distinguished on the facts, and Sanchez was not a Jones Act seaman.[21]

On a motion for rehearing, the Sanchez IV panel, consisting of Justices Davis, Willett, and Jones, vacated Sanchez III and reversed Sanchez I and II.  This panel held Fifth Circuit precedent – Naquin – bound them to find seaman’s status for Sanchez, as Naquin could not be distinguished factually.[22]  Judge Davis, the author of Naquin, also wrote the majority in Sanchez IV.

However, in a somewhat unusual move, the entire panel also concurred. Therein, Judge Davis, also writing the concurrence, stated he was “persuaded that our case law is inconsistent with the teaching of the Supreme Court.”[23]

Did Newell & Knight have “The Shine” in 2016?

In 2016, Mr. Newell and I wrote the following in our Seaman’s Status Primer:

A good argument can be made that a land-based worker such as Naquin does not experience the perils of the sea any different than a longshoreman who loads or unloads vessels, or a shore-based welder who repairs vessels while moored or in dry dock.  Indeed, two noted maritime scholars documented a short and non-exclusive list of what constituted perils of the sea in 2014.  Specifically:

1. Risks attending the movement of vessels;
2. Dangers associated with
   1. deep water;
   2. wind;
   3. weather;
   4. tide and currents;
   5. ocean predators;
   6. great distances from shore; and
   7. the isolated nature of the work; as well as
3. Inaccessibility of shore-side facilities for aid and succor.
4. The need to fight fires without outside assistance;
5. Abandoning ship;
6. Surviving exposure to inclement weather; and
7. Being stuck on a vessel at the whim of a Master and owner during the sea-based portions of a voyage.[24]

If Naquin experienced any of these risks during the 1 percent of his time he spent on vessels in motion, it likely would have only been Risks 1, 2b, 2d, 2e, 4, and 5.  A longshore worker loading or unloading cargo, or a ship repairman building a new offshore platform, or repairing an existing vessel in dry dock would face exposure to the same perils.  No reasonable and disinterested observer would claim the latter workers to be a seaman.[25]

To answer your question, neither Mr. Newell nor I know the lottery numbers in 2026.

The En Banc Opinion

On October 30, 2020, the Fifth Circuit issued Sanchez V, which vacated Sanchez IV and ordered an en banc hearing.[26]

The Fifth Circuit issued its en banc opinion on May 11, 2021.  Writing for a unanimous majority, Justice Davis first noted several academic publications, after Naquin and Endeavor Marine were critical of the holdings and rationales of those decisions.[27]  Justice Davis then went on to hold that the current framework used by the Fifth Circuit incorrectly placed too much of an emphasis on the “perils of the sea’ test from Papai in analyzing the substantial nature component of the second part of the Seaman’s Status test.  Justice Davis wrote while perils of the sea “is one of the considerations in the calculus, it is not the sole or even the primary test.”[28]

Instead, the Fifth Circuit now requires analysis of these additional questions with respect to whether a worker has a substantial enough connection in nature with a vessel or a fleet of vessels to be a Jones Act seaman:

• Does the worker owe his allegiance to the vessel, rather than simply to a shoreside employer?
• Is the work sea-based or involve seagoing activity?
• (a) Is the worker’s assignment to a vessel limited to performance of a discrete task after which the worker’s connection to the vessel ends, or (b) Does the worker’s assignment include sailing with the vessel from port to port or location to location?

Using this framework, the Fifth Circuit concluded Sanchez was not a Jones Act seaman, as he did not have a substantial connection to a vessel or fleet of vessels as to the nature of his work aboard those vessels.  Thus, the Fifth Circuit ultimately affirmed the judgment of the district court.[29]

The End Result of the Sanchez Saga

Texas, Louisiana, and Mississippi Federal Courts have a new, ostensibly clearer test for seaman’s status.  It is likely that this will trickle down to courts in those states over time.  Whether this test is workable, however, will likely only be evident over the next few years, as more district courts apply the Sanchez test in the “on the margin” cases of potential seamen.

However, in any such marginal case, one tactic that defendants should utilize (and that plaintiff’s counsel should expect) is removal, if the injuries occurred on the OCS.  There is also the potential – however faint – for a maritime worker to claim Sieracki seaman’s status.  The Fifth Circuit issued an opinion in Rivera v. Kirby Corp.[30] on December 22, 2020, wherein a panel composedof Justices King, Stewart, and Southwick, in an opinion authored by Justice Stewart, held a harbor pilot qualified as a Sieracki seaman under the Surpreme Court case of Seas Shipping Co., Inc. v. Sieracki[31] from 1946.[32]

A Nod of Respect in Concurrence

As a closing matter, it was touching to read Judge Dennis’ concurrence in Sanchez VI, which paid homage to one of my Admiralty professors at the University of Texas School of Law, the late David W. Robertson.  It is a short statement of respect forged in a friendship over 5 decades long.  It is also an excellent reminder that our judges are human, and that kindness in our profession is both not extinct and could be in greater supply.

[1] Seth Abramovitch, Searching for Shelly Duvall: The Reclusive Icon on Fleeing Hollywood and the Scars of Making ‘The Shining,’ The Hollywood Reporter, February 11, 2021, available at https://www.hollywoodreporter.com/movies/movie-news/searching-for-shelley-duvall-the-reclusive-icon-on-fleeing-hollywood-and-the-scars-of-making-the-shining-4130256/

[2] https://www.guinnessworldrecords.com/world-records/74583-most-retakes-for-one-scene-with-dialogue#:~:text=The%20most%20retakes%20for%20one,by%20Stanley%20Kubrick%20(USA).

[3] 304 U.S. 64 (1938).

[4] F. Daniel Knight & Jeremy R. Newell, A 21^st Century Primer on Seaman’s Status, presented at the 24^th Annual University of Texas Admiralty & Maritime Law Conference on January 21, 2016 in Houston, Texas.  Available at: https://utcle.org/ecourses/OC6755/get-asset-file/asset_id/37470

[5] 33 U.S.C. 902(3)(G).  Notably, this definition is from the Longshore & Harbor Worker’s Compensation Act, not the Jones Act.

[6] 46 U.S.C. 30104.

[7] 11 F.Cas. 480, 483, 2 Mason 541 (No 6,047), 2000 A.M.C. 893 (CC Maine 1823).

[8] 498 U.S. 337, 1991 A.M.C. 913 (1991).

[9] 502 U.S. 81, 1992 A.M.C. 305 (1991).

[10] 515 U.S. 347, 1995 A.M.C. 1840 (1995).

[11] 520 U.S. 548, 560, 1997 A.M.C. 1817 (1997).

[12] 515 U.S. 347, 368 (1995).

[13] F. Daniel Knight & Jeremy R. Newell, A 21^st Century Primer on Seaman’s Status, presented at the 24^th Annual University of Texas Admiralty & Maritime Law Conference on January 21, 2016 in Houston, Texas.  Available at: https://utcle.org/ecourses/OC6755/get-asset-file/asset_id/37470

[14] Sanchez v. Enterprise Offshore Drilling, LLC, 376 F.Supp.3d 726, 728 (S.D. Tex. 2019)(Rosenthal, C.J.).

[15] Id.

[16] 376 F.Supp.3d 726, 730.

[17] Id.

[18] Sanchez v. Smart Fabricators of Texas, LLC, 970 F.3d 550,

[19] 376 F.Supp.3d at 728.

[20] 28 U.S.C. §1333.

[21] Holmes v. Atl. Sounding Co., 437 F.3d 441, 445 (5^th Cir. 2006)(holding removal was improper because the dredge where the plaintiff worked was a vessel, making the dredge worker a seaman).

[22] Burchett v. Cargill, Inc., 48 F.3d 173, 175-76 (5^th Cir. 1995).

[23] NEED CITATION

[24] 376 F.Supp.3d 726, 731-33.

[25] 2019 U.S. Dist. LEXIS 101436 at *6-9; 2019 WL 2515307, H-19-cv-00110 (S.D. Tex. June 18, 2019)(Rosenthal, C.J.).

[26] 376 F. Supp.3d 726, 732-33 (removal/remand); 2019 U.S. Dist. LEXIS 101436 at *6-9 (summary judgment on Jones Act negligence & unseaworthiness claims).

[27] 744 F.3d 927 (5^th Cir. 2014).

[28] 744 F.3d 927, 934-36.

[29] Id.

[30] 234 F.3d 287, 291 (5^th Cir. 2000).

[31] 744 F.3d 927, 941-944 (Jones, J. dissenting).

[32] Id.

[33] Sanchez III, 952 F.3d 620, 623 (5^th. Cir. 2020)

[34] Sanchez IV, 970 F.3d 550, 554-555 (5^th Cir. 2020).

[35] Sanchez IV, 970 F.3d at 555 (Davis, J. concurring).

[36] David W. Robertson & Michael F. Sturley, Recent Developments in Admiralty and Maritime Law at the National Level and in the Fifth and Eleventh Circuits, 38 Tul. Mar. L.J. 419, 479-80 (2014).

[37] F. Daniel Knight & Jeremy R. Newell, A 21^st Century Primer on Seaman’s Status, presented at the 24^th Annual University of Texas Admiralty & Maritime Law Conference on January 21, 2016 in Houston, Texas.  Available at: https://utcle.org/ecourses/OC6755/get-asset-file/asset_id/37470

[38] Sanchez V, 978 F.3d 976 (5^th Cir. 2020

[39] Sanchez VI, 2021 U.S. App. LEXIS 13929 at *6, footnotes 11 and 12.

[40] Sanchez VI at *19-20.

[41] Sanchez VI at *24-28.

[42] 983 F.3d 811 (5^th Cir. 2020).

[43] 328 U.S. 85, 86 (1946).

[44] 983 F.3d 811, 817-18.