Sieracki Seaman Status Rises From the Briny Deep
Rivera v. Kirby Offshore Marine, L.L.C., 2020 U.S. App. LEXIS 40163 *; __ F.3d __; 2020 WL 7586508 (5th Cir., Dec. 22, 2020)
Jay Rivera who was hired by Kirby Offshore to pilot M/V TARPON injured his foot tripping over a stair inside a hatch door. He asserted he was unable to continue working as a harbor pilot and sued Kirby for lost wages. After a weeklong trial, the court held Rivera was a Sieracki seaman entitled to the warranty of seaworthiness and awarded over $11 Million in damages.
On appeal, Kirby maintained that he was an employee of another company, Riben Marine, and therefore his claim was governed by 33 U.S.C. § 905 (b) of the Longshore Act. The trial court noted that it was unclear whether he was employed by anyone and thus did not fall within the purview of the Longshore Act.
The Fifth Circuit agreed holding that he is an independent contractor and as such is not a covered employee under the Longshore Act. The court in an opinion by Judge Stewart referred to Aparicio v. Swan Lake, 643 F.2d 1109, 1110 (5th Cir. Unit A Apr. 1981) in which that court noted: “If the harbor worker is not covered by the LHWCA, the Sieracki cause of action and the concomitant indemnification action afforded the vessel owner are both still seaworthy."
The appeals court panel also concluded that the trial judge did not commit clear error in determining that the vessel was unseaworthy as a tripping hazard can constitute an unseaworthy condition. The trial judge also did not commit error in failing to find that the plaintiff did not contribute to the incident.
Finally, there also was no error in using the records of Riben Marine to calculate future wage loss as opposed to the claimant’s own tax returns as the records of Riben Marine included his income as a pilot, an expert and as a charterer and represented his full stream of income.
