Jones Act Claimant Falls Short of 30% on Vessel; Court Rejects Attempt to Deviate from Standard

Jones Act Claimant Falls Short of 30% on Vessel; Court Rejects Attempt to Deviate from Standard

By: Alex Lair

Lewan v. Soo Marine Supply, Inc., 2016 U.S. Dist. LEXIS 99944, 2016 WL 4072471 (E.D. Mich., Aug. 1, 2016)The plaintiff, Eric Lewan, began his employment with the defendant, Soo Marine Supply, Inc. (“Soo Marine”), a ship chandler, in 2010 as a warehouseman/deckhand.  Soo Marine owned a single vessel, M/V OJIBWAY, which was used to deliver goods to the ships. Mr. Lewan’s job as a warehouseman/deckhand was not only to aid in moving supplies around Soo Marine’s facility, but also to assist in making the deliveries aboard M/V OJIBWAY. On March 10, 2013, he slipped while placing pallets of frozen food in a workplace refrigerator and injured his back. Subsequently, Mr. Lewan sued Soo Marine for negligence, arguing that Soo Marine was liable under, either, the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), or the Jones Act. However, because his responsibilities included onshore and offshore work, the parties submitted, as a preliminary issue, the question of whether Mr. Lewan qualified as a “seaman” for the purposes of the Jones Act. If the Court found that he was not a “seaman,” then his recovery would be limited to the LHWCA.The amount of hours that Mr. Lewan worked aboard M/V OJIBWAY (vessel hours) versus his time spent working ashore (shore hours) were crucial in determining his seaman status. Because the Jones Act does not explicitly define the term “seaman,” the Court used the two-prong test developed in Chandris, Inc. v. Latsis in making its determination. First, the Court examined if the employee’s duties contributed to the function of the vessel or to the accomplishment of its mission.  Both parties agreed that Mr. Lewan met this requirement. Next, the Court analyzed whether Mr. Lewan had a connection to the vessel in navigation that was substantial in terms of both its duration and its nature. To assess this substantial connection, the Supreme Court in Chandris adopted a rule of thumb from the Fifth Circuit, which provided that, “a worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act.” Chandris, Inc. v. Latsis, 515 U.S. 347 (1995).  Although it is only a guideline for determining a substantial connection, courts have more-or-less followed this 30 percent rule, with a few deviations where appropriate.The Court determined that Mr. Lewan did not meet the Chandris threshold. Through an audit of his logged hours, Soo Marine submitted to the Court that Mr. Lewan only spent 17.7 percent of his time on the clock aboard the OJIBWAY. Mr. Lewan then made the argument that his time serving as a night watchman should count towards his vessel hours. As a night watchman, Mr. Lewan remained in the facility after hours and waited to receive a call from a ship in need of supplies. He would then inform the on-call team (captain and crane operator) that they were needed for a delivery. Mr. Lewan would accompany the on-call team as a deckhand. It was common practice for these on-call employees to log, from the time they were called in to the time they were clocked out, as vessel hours. Mr. Lewan argued that the same rules should apply to him. While the Court disagreed with Mr. Lewan’s argument that all of his night watchman hours should count towards vessel hours, it ultimately decided to include additional watchman time by using the average hours-per-day onboard the M/V OJIBWAY listed on Mr. Lewan’s original Small Vessel Sea Service Form, as opposed to the audited forms presented by Soo Marine (4 hours-per-day v. 2.5 hours-per-day). However, this additional time only bumped his vessel hours up to 26 percent of his total working time, which again fell short of the Chandris threshold.Mr. Lewan finally argued that a deviation from the Chandris threshold is warranted for 2 reasons: 1) He should be considered a seaman because all of his job responsibilities were directed at the operation and mission of the M/V OJIBWAY; 2) He should be considered a seaman because he was on the path to becoming a crane operator or captain. The Court quickly dispensed with both of these arguments. First, simply because Mr. Lewan engaged in the mission of the ships he loaded and unloaded, this alone did not make him a seaman. Otherwise, the two prongs of Chandris would essentially ask the same question. Second, even if captains and crane operators were considered seaman under the Jones Act, the fact that he might become one in the future did not convey upon Mr. Lewan actual, present seaman status. For the foregoing reasons, the Court held that Mr. Lewan was not a seaman for purposes of the Jones Act.