It’s been a busy little while here at Barge and in Charge, but I’m peeling off a couple minutes for an important one.
“I feel pretty safe telling you what the outcome is: Mr. Sanchez is probably in for a rough day.”
That’s what your scribe said in January. And lo, it has come to pass, in the long-awaited Fifth Circuit opinion on seamen. To recap: First, Judge Davis issues a concurring opinion to his own opinion where he says “let’s fix this” and then he fixes it. Unanimously! (Before you rush to give me credit, let me note that this was a pretty easy one.)
And what’s more, Judge Davis fashioned a new test that seems . . . really good? Here it is: to find out if somebody is a Jones Act seaman, we should ask:
(1) Does the worker owe his allegiance to the vessel, rather than simply to a shoreside employer?
(2) Is the work sea-based or involve seagoing activity?
(3) (a) Is the worker’s assignment to a vessel limited to performance of a discrete task after which the worker’s connection to the vessel ends, or (b) Does the worker’s assignment include sailing with the vessel from port to port or location to location?
And this seems to do two very important things. First, it just makes sense. The problem with the pre-Sanchez cases is that you have longshoremen who are also Jones Act seaman and there’s a real sense of ‘yes on a technicality but let’s get real’. If your employer has a shipyard, and you work in the shipyard on your employer’s vessels, you used to be a Jones Act seaman. That doesn’t really add up. But under the new test, you pretty clearly not a seaman.
The second important thing the test does is that it’s easy to apply. It’ll be subject to some interpretation - does the so-called diver exception still exist? - but generally speaking, you can give me a call and let me know what sort of work your dude was doing, and I can tell you pretty much immediately whether she or he is a seaman or not.
One point that’s probably worth making: what this seems to be is the common law at work. There are not a lot of areas of federal common law left. The big one is admiralty. There are big interesting questions about whether judge-made law or legislature-made laws are better, and when they’re better. I think Luigi Zingales goes into this in A Capitalism for the People. Here, we have the Fifth Circuit making a mistake a couple years ago in Naquin v. EBI, then the Fifth Circuit recognizing they made a mistake, and then the Fifth Circuit fixing their mistake. The plural of anecdote isn’t data, but this is still a positive instance.