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Marine & Energy News Alert: Fifth Circuit Denies Jones Act Seaman Status to Welder Working as Borrowed Employee

July 24, 2015

Today, July 24, 2015, the United States Court of Appeals for the Fifth Circuit affirmed a New Orleans federal court decision that denied Jones Act seaman status to a welder who worked both offshore and inshore aboard various vessels. The plaintiff, Joseph Wilcox, was a welder employed by Max Welders and worked as a borrowed employee of Wild Well Control aboard its derrick barge Superior Performance. Wilcox sued both parties under the Jones Act and general maritime law arising out of an explosion that occurred on a platform for which Wilcox claimed brain injury.

At the district court, Max Welders moved for summary judgment on Wilcox’s Jones Act and general maritime law claims because Wilcox had worked for 34 different customers on 191 jobs, both offshore and onshore. He was assigned to work for Wild Well on the Superior Performance for only one specific project.

On appeal, the Fifth Circuit affirmed the district court’s decision and in so doing noted that the seaman status of an employee who spends time between land and the vessel is determined in the context of his entire employment with his current employer. Wilcox argued that the district court erred by not determining Wilcox’s status with reference to his period of employment with Wild Well only, relying on Roberts v. Williams-McWilliams Co., 648 F.2d 255 (5th Cir. 1991). In Roberts, the Fifth Circuit held that a borrowed employee was a seaman with regard to his borrowing employer where the court found there was no reason to distinguish the plaintiff from payroll employees simply because he received his paycheck from the nominal employer. The Wilcox court distinguished Roberts and held there was good reason to distinguish Wilcox from Wild Well’s permanent employees because unlike Roberts, Wilcox worked for 34 different customers on 191 jobs, both offshore and onshore, and was assigned to work for Wild Well on the D/B Superior Performance for only one specific project.

Wilcox represents a textbook example of the fact that Jones Act seaman status must be determined based upon the individual facts and circumstance of each case.

Marty McLeod and Turk Clay represented Max Welders. The case is Joseph R. Wilcox; Lisa Wilcox v. Wild Well Control, Inc., et al., No. 13-31281.

A link to the Fifth Circuit’s Wilcox decision is attached here.