Not all employees furthering a vessel’s mission are seamen. They can provide short-term or even land-based support. If so, they aren’t seamen under the federal Jones Act. Whether Kerry Becnel was a seaman when he was injured was the issue considered in Becnel v. Chet Morrison, Inc., No. 2010-CA-1411 (La. Ct. App. 4 Cir. 8/31/11). The court of appeal reversed the St. Bernard 34th Judicial District Court and sent the case back for trial.
In the U.S. Supreme Court case of Chandris, Inc. v. Latsis, the first question to determine whether an employee is a seaman is simple: did the employee “contribute[ ] to the function of the vessel or accomplishment of its mission.” Becnel did contribute. He worked 17-hour days in preparing meals, cooking food, and cleaning. He sustained injuries when he fell off a barge at the end of one of those long working days. The parties did not dispute that Becnel met this test.
The second part of the Chandris test is harder: “whether that employee had a connection to a vessel in navigation which was substantial both in terms of duration and nature.” Two questions arise. Did the employee have a connection to a vessel in navigation? Was that connection substantial in its duration and nature.
Did Becnel have a connection to a vessel? The barge owner, Chet Morrison Contractors, Inc. (CMC), argued that Becnel did. Becnel’s employer, Coastal Catering, L.L.C. and its insurer State National Insurance Co. (SNIC) argued that Becnel did not because Coastal randomly assigned Becnel to its customers. Becnel’s assignments, Coastal said, were more often fixed platforms than boats. But this means of employment does not prevent one from being a Jones Act seaman. Seaman status cannot be defeated merely because someone in the future could be assigned a non-seaman role or “could have been assigned to other work locations.” What matters is that the person is “continuously subjected to the perils of the sea and engaged in classical seaman’s work.”
Becnel was “a day-cook/steward and a night cook” with his employer, Coastal, which served a number of customers. Becnel had worked for 153 days at seven different job sites, including five of Coastal’s customers. These customers included dive boats, drilling ships, and fixed platforms. But, CMC said Becnel always worked on an identifiable fleet of vessels, and Becnel said all of his assignments were part of a CMC project. The court of appeal found these facts did not result in a clear answer to whether Becnel was connected with a vessel. It could not be resolved on summary judgment.
Did Becnel have a substantial connection in duration and nature with a vessel? The ordinary case in the U.S. Fifth Circuit requires at least 30% of one’s time in service of a vessel in navigation to qualify as a Jones Act seaman. Circumstances may justify a lesser percentage of time. The parties disputed how to compute Becnel’s percentage of service. Coastal and SNIC argued that Becnel was not a seaman because he worked less than 30% of his time on CMC vessels. But, CMC said that Becnel met the test when considering all his assignments with Coastal.
The court looked at the evidence on either side of the argument. By Coastal’s tally, Becnel had worked for 153 days on seven jobs for periods ranging from seven days to 52 days. Within those 153 days, 64 were spent on fixed platforms and 35 were on CMC barges. Coastal and SNIC argued that 35 days was only 23% of Becnel’s time in service, and that wasn’t enough to qualify as a seaman. One witness also doubted that CMC owned the quarters barge where Becnel worked. Others had testified, instead, that Becnel had always worked on barges or vessels of some type.
The discrepancy could be resolved only by weighing of evidence and determining the credibility of witnesses. Those things are matters for a trial court, not an appellate court that does not see the witnesses. The court of appeal determined that Becnel’s seaman status could be decided only by the district court.
The right to a jury trial for personal injuries may be the difference that allows recovery for a seaman’s injury. In a specialized economy in which services are provided by third parties, it may be difficult to determine whether one is considered a seaman under the Jones Act. Becnel’s circumstances provide a warning. A trained lawyer will be able to ask the right questions to find out the important facts and how they affect your case.
If you have been harmed by the acts of another, call the Berniard Law Firm toll free at 504-521-6000 and speak with a lawyer who can help you get the recovery you deserve.