The Complications of Seaman Status: How Maryland Reconciles Past Precedent

The Complications of Seaman Status: How Maryland Reconciles Past Precedent

By: Jamie Johnson

Edited by: Tiffany Morales

Dize v. Association of Maryland Pilots, 77 A.3d 1016 (Md 2013)The Jones Act, 46 U.S.C. § 30104, provides a seaman with a negligence cause of action against his employer for injuries incurred within the scope of employment. The main issue that arises when a Jones Act claim is asserted is the definition of “seaman.” The Supreme Court has offered guidance in determining this definition, but lower courts have also muddied the waters. The Court of Appeals of Maryland in Dize v. Association of Maryland Pilots attempted to reconcile this precedent and give a clearer definition of the term “seaman” for purposes of the Jones Act.On May 22, 2008, Dize, the plaintiff herein, filed a complaint against his employer, Association of Maryland Pilots (“Association”) pursuant to the Jones Act, alleging negligence in regard to injuries he suffered from exposure to free silica during a sand blasting project. Dize further alleged that the Association did not perform adequate occupational safety testing, as required by work safety standards, to determine whether he was fit to participate in sand blasting.In January 2010, both Dize and the Association filed motions for summary judgment. The Association argued that Dize was not a seaman for purposes of the Jones Act and therefore could not maintain a negligence claim. The outcome of the motions depended on whether Dize was a seaman under the Jones Act at the time of his injury. On February 25, 2010, the Circuit Court granted the Association's motion for summary judgment on the basis that Dize was not a seaman because he had not spent 30 percent of his work time in service of vessels in navigation. The Circuit Court declined to count the additional hours that Dize spent maintaining and servicing vessels because the court believed “the number of these hours is not material” and held the duration requirement must be measured in terms of time actually spent aboard vessels in navigation. Dize then appealed. On March 8, 2012, the Court of Special Appeals affirmed the Circuit Court holding that the focus should be on “activities performed on board a vessel that actively subjected [him] to the perils of the sea” and held that the maintenance projects that Dize undertook on docked vessels and his various land-based duties should not be included in the calculation to determine the duration requirement of seaman status This appeal commenced.The facts as presented are as follows. Dize initially worked for the Association as a launch boat operator in the 1980s. In that capacity, he transported pilots to and from large commercial ships. In 1997, he was promoted to assistant station manager. As assistant station manager, Dize worked every other week but, during the weeks he was on duty, he was on-call all day every day. During the relevant time period, Dize spent somewhat less than 20 percent of his time operating launches. In a deposition, Dize estimated he spent between 42 and 50 percent of his time on maintenance tasks such as painting, sanding, etc. In total, Dize calculated that well over 60 percent of his time was spent operating or performing maintenance on launch boats. Association estimated 3 and 5 percent of Mr. Dize's time was spent on overhaul and refits while the boats were out of the water. In January 2008, Dize was diagnosed with silicosis. As a result of his silicosis, Dize suffered breathing difficulties, required supplemental oxygen, and ultimately died from his illness in September 2012.On appeal, the Maryland Court of Appeal (highest court in Maryland) addressed the issue of whether, in determining Dize's status for purposes of the Jones Act, work time spent maintaining vessels that are moored, dockside, or ashore is to be counted along with time spent at sea. In its determination, the Court of Appeal looked to Supreme Court precedent. The Supreme Court revisited the question of seaman status under the Jones Act in three cases during the 1990s in which it attempted to devise a workable test. First, in McDermott Int'l, Inc. v. Wilander, 498 U.S. 337 (1991), the Supreme Court determined that the test to find seaman status was whether the individual asserting the claim has a “connection” to a vessel in navigation—i.e., whether the employee “contribute[s] to the function of the vessel or to the accomplishment of its mission” and does “the ship's work.”A few years later, in Chandris, Inc. v. Latsis, 515 U.S. 347 (1995), the Supreme Court created the main test for determining seaman status. The court stated that, “[t]o be a ‘seaman’ under the Jones Act, the employee must (1) contribute to the function of a vessel or to the accomplishment of its mission, and (2) have a connection to a vessel in navigation that is substantial in both duration and nature.” Chandris, 515 U.S. at 368. In relation to the second prong of the Chandris test, the court noted that “a worker who spends less than about 30 percent of his time in the service of a vessel in navigation” would presumably not satisfy the substantial duration requirement. Chandris, 515 U.S. at 371. The Court also referred to this rule of thumb as computing the percentage of time “on vessels” or “aboard ship.”Finally, in Harbor Tug & Barge Co. v. Papai, 520 U.S. 548 (1997), the Supreme Court gave further guidance on the Chandris test by ruling that “[f]or the substantial connection requirement … the inquiry into the nature of the employee's connection to the vessel must concentrate on whether the employee's duties take him to sea.”Ultimately, the Maryland Court of Appeal applied the Chandris test to determine whether Dize was a seaman for the purposes of the Jones Act. It was undisputed by the parties that the first prong of the test was satisfied by Dize’s employment related activities. As to the second prong, it was undisputed by the parties that Dize worked on vessels “in navigation.” Therefore, the only issue was whether Dize's position had a connection to those vessels that was substantial in both duration and nature.In addressing this issue, the Court of Appeals of Maryland focused in closely on the language in Chandris to determine the definition of seaman. After looking at the language, the court stated “for purposes of the duration requirement, an employee must spend at least 30 percent of the employee's time aboard or on a vessel to be a seaman.” They also noted that a number of courts have held, explicitly or implicitly, that a worker may be “aboard” a vessel when it is moored ordockside (or perhaps even on the shore for repairs), meaning it need not be at sea. The court looked to this language as a broadening of the scope of the term seaman so as to include some land-based workers. Therefore, they compromise that decision with that of Harbor Tug. In Harbor Tug, the court gives the distinguishing factor to be that a court must “concentrate on whether the employee's duties take him to sea.” Some courts have read this in conjunction with Chandris to require that the worker spend at least 30 percent of the worker's time at sea. But other courts have understood this to be a requirement only that the employee's duties take the employee to sea, not necessarily that the seagoing activities exceed 30 percent of worktime. Other courts, however, have concluded that Harbor Tug did not create a requirement that an employee's duties “literally carry him to sea” in order to achieve seaman status.In reaching its conclusion the court stated, “courts in the Second and Ninth Circuits, in ruling on summary judgment motions concerning seaman status, have focused on whether the employee's duties are ‘sea-based activities.’” Further, “[f]rom this perspective, “sea-based” duties that count for the purposes of the duration analysis are those that regularly expose the worker to seagoing perils.”The court found that Dize's piloting of the launch boats, which constituted less than 20 percent of his work time, was a “sea- based” activity that sufficiently exposed him to the perils of the sea. The question then turned on whether his dockside or onshore maintenance of the boats was “sea-based” work. Precedent has stated that “[p]erforming repairs and conducting inspections on vessels that are dockside hardly exposes the plaintiff to ‘the perils of the sea.’ For example, repairs dockside are not subjected to storms, high seas, or other caprices of open water, and onshore assistance is never far away. Further, the court in Harbor Tug held that the employee's maintenance work and painting aboard a docked tugboat were not “substantial for seaman-status purposes.”Likewise, Dize's time spent maintaining the Association's vessels while they were docked or onshore does not count toward the 30 percent threshold for the same reasons. Those activities did not subject him to the “caprices of open water,” and, in the case of an emergency, “onshore assistance was never far away.” This work did not subject Dizeto the perils of the sea, and therefore did not comprise sea-based activities that should have been included in the Circuit Court's duration calculation.Because Mr. Dize did not spend at least 30 percent of his work time performing such duties, he did not have a connection to a vessel that was substantial in both duration and nature. The Court therefore held that he was not a seaman for the purposes of the Jones Act.