Seamen strive for recognition by US courts

IN the course of processing personal injury claims in the United States and Panama, two matters constantly crop up in P&I club portfolios. First, who can claim to be a 'seafarer?' Second, when should foreign seafarers' claims be heard in US and Panamanian jurisdictions, and are they entitled to seaman status as defined in the Jones Act?

The motives of the claimants lie, of course, in the perception that these jurisdictions are more likely to produce favourable results and generous settlements once seafarer status has been achieved.

It is clearly incumbent on P&I clubs to subject claimants and claims to rigorous examination where there are doubts as to status and appropriate jurisdiction. The primary US reference point for the former is the Jones Act 1920. This gives seamen a cause of action against the shipowner or employer for personal injury damages sustained in the course of employment due to the negligence of employer, officers or fellow crew members.

US Congress left the word 'seaman' undefined, opening the floodgates for litigation about the meaning of a seemingly self-apparent concept. The courts have since wrestled with an array of plaintiffs claiming to be 'seamen'. Examples include a paint foreman on a paint boat serving oil platforms, a shore-based superintendent engineer on board a cruiseship to supervise repairs, an individual decommissioning oil wells on offshore platforms, and a deck hand painting a tug house, not scheduled to sail with the vessel but possessing an extensive shipping record on tugs in the same fleet.

Supreme Court guidelines

No definitive test for seaman status exists or is ever likely to exist, although the US Supreme Court has laid down some guidelines. There is general agreement that a Jones Act seaman has to be employed on a vessel in navigation to perform the ship's work. But this condition has provided additional grist to litigation mills. The court has refined its characterisation of an employee/seaman as one who contributes to the ship's function or to the accomplishment of its mission and who has an identifiable, substantial and enduring connection to a vessel or group of vessels in navigation.

It has become clear that analysis of seaman status depends on a case-by-case, fact-focused inquiry into each claimant's connection to the vessel, not just at the moment of injury but as part of a larger consideration of the claimant's enduring relationship to the vessel.

In the landmark case of Chandris Inc v Latsis, the supreme court based its decision that the plaintiff was not a seaman on his lack of "connectiveness" to any vessel or group of vessels, and not on the nature of his work (a superintendent repair engineer). Key factors the court considered were:

• Did the worker belong to a seafaring union?
• Was the worker employed by the shipowner/operator?
• Was the work supervised or directed by a seaman or ship's officer?

Vessel status

Even the term 'vessel' has proved to be a bone of contention. For Jones Act purposes, a watercraft is not a vessel if not used for or capable of being used for transportation, or if it does not have its own means of propulsion. Work platforms, therefore, can be vessels, depending on their transportation function.

Determination of vessel status for unconventional craft, those anchored to the ocean bottom or those permanently anchored, such as casino boats, hinges on the courts' close scrutiny of structural and functional factors.

The question of whether the vessel is 'in navigation' for purposes of seaman status under the Jones Act has also been tested but remains only loosely defined. Is a worker on a ship in drydock a Jones Act seaman? A short period in drydock will not take a ship out of navigation, while major overhauls and renovation will.

The courts have not been clear or consistent as to how much time and/or money has to be involved before a ship is judicially not in navigation. A ship undergoing refrigeration system retrofits over three months was found to be in navigation. A vessel being converted from an oil drill ship to a fish and crab processing ship was not.

The only certainty is that there will continue to be uncertainty as to who is a Jones Act seaman, as well as further intensive litigation by plaintiffs striving to enhance their claims by attaining seaman status.

Claiming in the US and Panama

Significant numbers of non-US seamen and their attorneys continue to try to link their cases to US and Panamanian jurisdictions. Methods and criteria pursued include receipt of substantial medical treatment in the US, and obtaining claims-supporting evidence while the vessel is in the US through ship inspections or crew depositions.

There is also the Penalty Wage Statute which grants federal jurisdiction over wage and other employment-related claims where a seaman can show he was discharged and wages withheld without sufficient cause. Where an accident occurs in the US, some states allow an action to be filed against both the shipowner and its insurer (the P&I club), thereby supporting a seaman's case that the suit should be maintained in the US.

US federal courts will generally dismiss foreign seamen's claims or transfer them to a foreign forum by applying principles of forum non conveniens. Defendants must show that, due to a minimum level of contact between underlying facts and the United States, an alternative jurisdiction would be more suitable to deal with the claims concerned. Enforcement of selection clauses in the applicable employment agreement is another increasingly effective defence, particularly where the contract has been bargained for and adopted by a governmental agency.

Foreign claims in the US are concentrated in state courts. But cases can be dismissed or transferred more easily from federal than from state courts.

Liberal regimes

The more liberal regimes for foreign seamen's claims have included Louisiana, Texas and Panama.

• Louisiana: In 1999, new legislation authorised the application of forum non conveniens in maritime cases filed in state court. This is not mandatory, however, and is not applied where the accident occurs within the state. The removal of cases from state to federal court has become more likely if employment contracts or collective bargaining agreements include an arbitration arrangement. It has been ruled that Philippines schemes, which require mandatory arbitration by the National Labour Relations Commission (NLRC), may be removed to federal court.
• Texas: A state court recently held that forum selection clauses in cruise line passenger tickets raise admiralty issues and are therefore governed by federal law. Although there has been no specific ruling on the enforceability of forum selection and foreign arbitration clauses in seamen's employment contracts, a Texas court would probably apply federal maritime law.
• Panama: Traditionally, most claims stem from injuries allegedly suffered by Filipino seamen covered by Philippine Overseas Employment Administration (POEA) contracts.
  Following a mandate of the Panamanian Supreme court, maritime courts have been respecting and enforcing the jurisdictional forum selection clause in POEA and ordering that cases brought in Panama be returned to the Philippines.

Pending the outcome of the Philippines litigation, plaintiffs and their attorneys frequently retain the security usually demanded and provided in Panama.