In a recently published decision, the United States Fifth Circuit Court of Appeals reversed the ruling of the District Court and confirmed that a Jones Act employer is only vicariously liable for the acts of its employees, when those employees are acting within the scope of their normal maritime employment: Beech v Hercules Drilling Company,LLC.
Keith Beech was employed as a crane operator working aboard a Hercules owned rig. Michael Cosenza was a co-worker also employed by Hercules. In violation of Hercules company policy, Cosenza accidentally brought a loaded firearm on to the vessel. Rather than report his error he kept the firearm hidden in his locker, which was an additional violation of Hercules health & safety policy.
One night Cosenza was the only crewman on duty working the night shift and his duties were to monitor the rig’s generator, to check equipment and report any problems. It was common practice to carry out these duties whist in the break room watching TV with fellow co-workers. Beech was also in the rest room and, although not on duty, he was subject to the call of the vessel.
Beech mentioned that he was thinking about purchasing a small firearm and Cosenza, thinking Beech might be interested in seeing his gun, left his position to go to his locker to retrieve it to show to Beech. On returning Cosenza went to sit back down next to Beech on the couch when he accidentally knocked his arm causing the fire arm to discharge, mortally wounding Beech.
Beech’s wife bought a wrongful death action against Hercules as Cosenza’s employer under the Jones Act. Suing under the Jones Act results in a broader employer liability than that available under State law: the slightest negligence on the part of the employer is sufficient for a finding of liability.
The Court discussed the legal determination of whether the facts met the “course and scope” of Cosenza’s employment with Hercules as required in Jones Act cases. Hercules importantly argued that Cosenza’s decision to show off his firearm did not further Hercules business interests, was in no way related to his work duties and, as a result, he was not acting within the scope of his employment.
Beech’s estate argued that at the precise moment the firearm discharged Cosenza was sitting in the rest room monitoring equipment, as were his duties, therefore he was acting within the scope of his employment.
The Court considered the case of Sobieski v Ispat Island Inc (7th Circuit 2005) and more importantly Stoot v D & D Catering Serv , Inc (5th Circuit 1987), where it was held that an employer is only liable for wrongful acts committed by its employee when the employee’s tortious conduct is in furtherance of the employer’s business. The Appeal Court held that Cosenza was acting outside the course and scope of his employment when handling the firearm and therefore there can be no Jones Act negligence. The District Court’s decision was reversed.
This is an important decision for vessel owners and employers of Jones Act seaman as this case removes any doubt as to the appropriate test for course and scope of employment pursuant to the Jones Act in the Fifth Circuit. If an employee’s negligent actions are unforeseeable and removed from the employee’s duties then that negligent act will be deemed outside the course and scope of his employment and therefore the employer will not be vicariously liable.
Article by Stuart Crozier
