by the Admiralty and Maritime Team

In the recent case of Cain v. Transocean Offshore USA, Inc., et al., No. 05-300963, the United States Court of Appeals for the Fifth Circuit affirmed its long standing decision that a watercraft under construction is not a “vessel in navigation” for purposes of the Jones Act.

The determination of whether a vessel is “in navigation” is a critical part of the “seaman status” analysis. Congress did not define the term “seaman” when it passed the Jones Act. Thus, it has been left to the Courts to interpret and define that term. The U.S. Supreme Court’s most recent holding defines a “seaman” as an “employee whose duties contribute to the function of a vessel or to the accomplishment of its mission, and who has connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and nature.” Chandris, Inc. v. Latsis, 515, U.S. 347, 354 (1995).

Thus, the existence of a “vessel in navigation” is a crucial factor in determining whether an employee is a “seaman” under the Jones Act. Holmes v. ATL. Sound & Co., 437 F.3d 441, 446 (5th Cir. 2006). An employee cannot be a Jones Act seaman without assignment or connection to a vessel in navigation or an identifiable group of such vessels. This begs the question, “When is a vessel not a vessel?”

The Fifth Circuit has long held that a vessel under construction is not a vessel. It reaffirmed this decision in Cain, in which, the Plaintiff was employed by Transocean and assigned to work aboard the M/V CAJUN EXPRESS a semi-submersible mobile offshore drilling rig under construction in Singapore. In 2000, the M/V CAJUN EXPRESS underwent sea trials and was moved from Singapore to Grand Isle, Louisiana  with tugboat assistance. Construction continued throughout the move. Upon arriving in Grand Isle, the M/V CAJUN EXPRESS was moored to a “floating shipyard” for completion of construction. In September 2000, while the M/V CAJUN EXPRESS was moored and under construction, the Plaintiff was (allegedly) injured when he walked into a low-hanging light fixture. Approximately eight months later (April/May 2001), the M/V CAJUN EXPRESS was completed and began drilling operations in the Gulf of Mexico.

The Plaintiff filed suit under the Jones Act alleging that his injuries were the result of Transocean’s negligence and the unseaworthiness of the M/V CAJUN EXPRESS.  Transocean moved for summary judgment arguing that the Plaintiff was not a Jones Act seaman at the time of his injury because the M/V CAJUN EXPRESS was not yet a vessel in navigation. There was no question that the M/V Cajun Express was still under construction at the time of Plaintiff’s injury. It lacked vital equipment to make it a fully functional and operational oil drilling rig. Indeed, no drilling contractor would have found the M/V CAJUN EXPRESS fit to drill in the Gulf of Mexico.   However, the District Court denied Transocean’s motion citing the U.S. Supreme Court’s decision in Stewart v. Dutra Construction Co., 543 US 41 (2005) as authority overruling the Fifth Circuit’s precedent concerning watercraft under construction.

The Fifth Circuit reversed the District Court’s decision and held that Stewart did not extend the definition of “vessel” to include watercraft under construction. The Fifth Circuit reasoned that Stewart “examined an already completed structure in use for its intended purpose.” Steward did not concern what to do with ships and other structures under construction. Accordingly, the Fifth Circuit’s ruling that a vessel under construction is not a vessel “in navigation” remains “good law.”