IF YOU WALK LIKE A DUCK AND QUACK LIKE A DUCK…

In the event of an injury, as a maritime worker, it is often confusing as to whether you are entitled to an injury claim for benefits under the Longshore and Harbor Workers’ Compensation Act, 33 USC §901, et seq., or monetary damages pursuant to the Jones Act, 46 USC §30104 and the General Admiralty Laws of the United States.  Recently, in Larry Naquin, Sr. v Elevating Boats, LLC, 744 F.3d 927 (5th Cir. Mar. 10, 2014), the Fifth Circuit decided this precise issue in an opinion very favorable to maritime workers.  In that case, Larry Naquin, Sr. was employed by defendant Elevating Boats, LLC (“EBI”) as a vessel repair supervisor at its shipyard facility in Houma, Louisiana.  Naquin’s primary responsibility as a vessel repair supervisor was the maintenance and repair of Elevating Boats’ fleet of lift boat vessels.  Ordinarily, Naquin worked aboard the lift boats while they were moored, jacked up or docked in EBI’s shipyard canal.  Naquin spent approximately 70% of his total time working aboard these vessels, including inspecting them for repairs, cleaning them, painting them, replacing defective or damaged parts, performing engine repairs, going out on test runs, securing equipment and operating the vessels’ marine cranes and jack up legs.  Two or three times per week, Naquin would do this work while the vessel was being moved to another position in the canal.  Occasionally EBI dispatched Naquin to repair a vessel or fill in as a vessel crane operator while the vessel was operating in open water.  Naquin’s employer EBI argued that he was a land-based repairman performing classical land-based harbor worker duties and that his position title as vessel repair supervisor fell within a scheduled position “ship repairman” within the LHWCA.  Because the LHWCA and Jones Act are mutually exclusive compensation schemes, EBI argued that Naquin’s coverage under the LHWCA precluded his coverage under the Jones Act.  The court focused on the relevant question as to whether, in the course of Mr. Naquin’s job, he substantially contributed to the vessels’ functions and maintained a substantial connection with the fleet.  Because the majority of Naquin’s work was performed aboard vessels while they were moored or docked at EBI’s shipyard canal, although vessel repair is a classman seaman’s work, EBI argued that Naquin did not qualify as a seaman because his duties did not “regularly expose him to the perils of the sea.”  In response, the Fifth Circuit countered that courts have consistently rejected the categorical assertion that workers who spend their time aboard vessels near the shore do not face maritime perils.   While these near-shore workers may face fewer risks, they still remain exposed to the perils of a maritime work environment.

Ultimately, the court found that Naquin’s duties contributed to the function of a discreet fleet of vessels and that he had a connection with the fleet that was substantial in terms of both duration and nature, holding that the evidence before the court supported the jury’s finding that Naquin was a seaman.

It is important to note if you receive benefits under the LHWCA that, in and of itself, does not preclude a subsequent claim under the Jones Act as long as no formal award is made pursuant to the LHWCA.  Southwest Marine, Inc. v Byron Gizoni, 502 US 81; 112 S.Ct. 486 (1991).  On the other hand, if you have received benefits under the LHWCA, and pursue a subsequent Jones Act claim, the insurer has a lien and a right to reimbursement of all benefits voluntarily paid pursuant to the LHWCA out of any Jones Act settlement or recovery.  Chenevert v Travelers Indemnity Co., 214 U.S. App. LEXIS 4337, March 7, 2014.

As can be plainly seen from this discussion, it is imperative that a maritime worker seek the advice of seasoned maritime lawyers to help navigate these complex issues.

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