In Rocky Cain v Transocean Offshore USA Inc. et al, 518F.3d295 (fifth circuit 2008) the question as to what constitutes a vessel and in turn, whether an injured individual can pursue a Jones Act claim for damages in tort when working on a structure under construction, was considered.
Rocky Cain a toolpusher, was assigned to the construction of a semi-submersible rig called the “Cajun Express”. Having previously worked on the structure whilst it was under construction in a site in Singapore and subsequently whilst it was under tow to the Gulf of Mexico, Cain continued to work upon the structure while it was moored in a “floating shipyard” in the Gulf of Mexico.
Cain allegedly suffered injury when he hit his head on a light fixture and sued Transocean under the Jones Act claiming that the “Cajun Express” should be deemed to be a vessel under the Jones Act. Transocean argued against plaintiff’s assertion responding that the “Cajun Express” could not be considered to be a vessel, noting that while it could perform its intended function under limited conditions, it was not fit for its purpose of drilling a deepwater well in the Gulf of Mexico at the time of Cain’s injuries.
The District Court for the Western District of Louisiana held that the Dutra (see below) definition of a “vessel” applied to the “Cajun Express” and that Cain could therefore maintain his claim as a Jones Act seaman. The Fifth Circuit reversed the District Court’s decision upon appeal from Transocean.
The Fifth Circuit distinguished the dredge, the status of which was considered in Stewart v Dutra Construction Company (Dutra), United States Supreme Court, 2005. from the “Cajun Express”. The Fifth Circuit had historically considered that the Jones Act did not apply to vessels under construction as they were not being used for their intended purpose i.e. the transportation of passengers, cargo, etc and nor are they instrumentalities of commerce. Applying this reasoning to the “Cajun Express”, the court considered that the rig had not been placed into service on the date of the incident nor was it complete at the time and therefore concluded that it could not be considered to be a vessel.
The court considered Dutra and decided that in that instance, the Supreme Court did not consider whether an incomplete structure could be deemed to be a vessel but rather, based its analysis on whether the structure was “in-navigation” at the time of the subject incident. The Fifth Circuit considered that a structure cannot “obtain vessel status before it is ever put into ‘navigation’ “ and noted that Dutra did not change precedent regarding incomplete structures.
In Dutra, the Supreme Court ruled that a dredge, the “Super Scoop” qualified as a vessel rather than, as the defendants argued, simply a work platform. The dredge, it was held, met the criteria that it “be used or be capable of being used as a means of transportation”. The ruling was significant because a dredge had not previously been deemed to be a vessel and dredge employees had been entitled to workers’ compensation benefits through the Longshore and Harbor Workers Compensation Act (LHWCA). In ruling that a dredge such as the “Super Scoop” was considered to be a vessel, the court paved the way for workers on such craft to receive the Jones Act benefits of maintenance and cure and also to be subject to the less onerous standards required to prove negligence or unseaworthiness (triggered by a vessel’s Jones Act status) against a vessel owner or operator in a Jones Act claim in tort.
In seeking to define the “Cajun Express” as a vessel, Cain sought to determine his right to bring a Jones Act claim in tort. The remedies available were dependant upon the status of the structure and in ruling that a vessel under construction is not a Jones Act vessel until it is complete and fit for maritime duty, the court determined that these remedies were not available to plaintiff. In considering the case, the court also noted that at the time of the subject incident, the “Cajun Express” had not passed the U.S. Coast Guard inspection required before a vessel can be determined as being fit to transport persons and cargo. Further examination will reveal that this specific point does not appear to have been a single determining factor in the court’s consideration.
Policy reasons were also a factor in the court’s decision. Applying Dutra to an incomplete structure could have resulted in land-based construction workers, whose work may take them aboard a ship under construction on perhaps a single occasion, claiming Jones Act status. The court determined that the certainty created by the fact that a ship being constructed is not a vessel benefited the industry as whole and in particular, marine insurers.
Cain v Transocean represents an important Fifth Circuit ruling and reflects the ongoing consideration by the courts as to what does and does not constitute a vessel. The case of Holmes v Atlantic Sounding Co. (Fifth Circuit, October 2005) which considered the status of a quarter barge used to house workers is also worthy of consideration.
Holmes considered a Jones Act claim for damages brought by plaintiff, a cook aboard a barge named BT 213, who suffered injury while aboard the vessel and in the course of her duties for her employer. Plaintiff’s claim pursuant to the Jones Act was therefore dependant on the status of the BT 213 which, defendants argued, was not a vessel.
The BT 213 was a barge which acted as a floating dormitory through a “two storey 50 bed quarters” package which was affixed to the barge. The barge was not self-propelled and was moved by tugboats between various project locations. It served to house and feed workers employed in the various projects to which it was moved.
In considering the status of the barge, the court once again made reference to Dutra. The structures considered were similar in that the dredge “Super Scoop” had only limited means of self-propulsion while the BT 213 was incapable of self-propulsion. Both were moved longer distances by tugs to the locations at which they were to be utilised. The court considered that Dutra had broadened the class of water borne structures that could be considered vessels and crucially, articulated that the use of the structure, in this case as living quarters while moored at the site of the project upon which the workers were being employed, was essential to the consideration. The locations of the project sites were various and the barge was required to house the workers at each site it was moved to. While it could not move independently, it was nevertheless a structure that was used to transport equipment between locations and pursuant to the example of the dredge in Dutra, did therefore attain vessel status.
The question as to whether a vessel is capable of being used as a means of transportation or indeed of fulfilling its intended purpose is shown to be a crucial one. In ruling that the “Cajun Express” did not constitute a vessel, the fifth circuit has noted that a structure that is not yet fit for its intended purpose and is instead simply still in the process of becoming fit for that purpose is not yet capable of being deemed to be a vessel. As the court in Holmes noted, the criteria which a structure must fulfil to be considered a vessel have been broadened by the decision in Dutra and those with an interest in such matters must be conscious of this fact. It will not do to simply assume that because a structure is not self-propelled and spends much of its time as a platform or living quarters that it does not constitute a vessel. The definition is far wider but Cain has shown that there remains a definite limit to that which can be deemed to be a vessel and that which is simply a structure that happens to be situated at sea.
Update
On 6 October 2008 Certiorari* was denied by the US Supreme Court, a review of the Cain decision having previously been sought. The Fifth Circuit decision detailed above remains in effect - that an offshore semi submersible rig under construction is not deemed to be a vessel for the purposes of determining Jones Act coverage.
* Certiorari is the order issued by an upper court based on a writ of certiorari to review the decision, order and findings made by the lower court when the upper court is of the opinion that the proceedings in the lower court contain irregularity or they are not proper.
