Case: 19-20506     Document: 00515527397        Page: 1      Date Filed: 08/14/2020




         United States Court of Appeals
              for the Fifth Circuit                                  United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                                                      August 14, 2020
                                No. 19-20506
                                                                       Lyle W. Cayce
                                                                            Clerk
 Gilbert Sanchez,

                                                          Plaintiff—Appellant,

                                    versus

 Smart Fabricators of Texas, L.L.C.,

                                                        Defendant—Appellee.


         Appeal from the United States United States District Court
                     for the Southern District of Texas
                         USDC No. 4:19-CV-00110


 Before Davis, Jones, and Willett, Circuit Judges.
 W. Eugene Davis, Circuit Judge:
        Plaintiff Gilbert Sanchez appeals the district court’s denial of his
 motion to remand and grant of summary judgment in favor of Defendant
 Smart Fabricators of Texas (“SmartFab”). Both rulings rested on the district
 court’s holding that Sanchez did not qualify as a seaman under the Jones Act.
 Concluding that Sanchez is a seaman, we REVERSE and REMAND
 WITH INSTRUCTIONS to remand the matter to state court.
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                                     No. 19-20506


                             I. BACKGROUND
          Sanchez, a welder hired by SmartFab, was injured when he tripped on
 a pipe welded to the deck of a jack-up drilling rig. The rig was owned and
 operated by Enterprise Offshore Drilling LLC (“Enterprise”).
          Sanchez worked for SmartFab as a welder for 67 days. Of those 67
 days, Sanchez worked two jobs that do not count in the seaman calculus: two
 days (3% of his total employment) in SmartFab’s onshore shop, and four days
 (6% of his total employment) on the ENSCO 75, a vessel not owned by
 Enterprise or part of its fleet. He spent the remaining days—those pertinent
 to our calculus—on Enterprise’s jack-up drilling rigs. Sanchez worked 48 of
 those days (72% of his total employment) on the ENTERPRISE WFD 350, a
 rig adjacent to an inland pier, and 13 of those days (19% of his total
 employment) on the ENTERPRISE 263, a rig on the Outer Continental
 Shelf.
          Although Sanchez’s injury occurred on the ENTERPRISE 263, the
 vast majority of his time with SmartFab was spent on the ENTERPRISE
 WFD 350. Thus, it becomes critical whether his work aboard that rig was
 substantial in terms of both its duration and nature. For all 48 days he spent
 on the ENTERPRISE WFD 350, the rig was jacked up above water, a step
 away from and adjacent to the shoreside pier. Sanchez only worked day shifts,
 returning home every evening.
          After his accident, Sanchez sued SmartFab in state court under the
 Jones Act. SmartFab removed the case, but Sanchez argued that the Jones
 Act precluded removal. The district court denied Sanchez’s motion to
 remand and granted SmartFab’s motion for summary judgment, each for the




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                                            No. 19-20506


 same reason: Sanchez could not qualify as a Jones Act seaman. 1 Sanchez
 timely appealed both orders.
                                   II. DISCUSSION
        We review both the denial of a motion to remand and the grant of
 summary judgment de novo. 2
        The Jones Act grants “any seaman” a cause of action in negligence
 against the vessel owner, master, or fellow crewmembers. 3 Only seamen may
 sue under the Jones Act. Generally, Jones Act claims are “not subject to
 removal to federal court.” 4 Sanchez argues that because he was a seaman
 who brought his negligence claim under the Jones Act in state court, the
 district court erred in granting summary judgment for SmartFab and denying
 his motion to remand. So, the only issue for us to decide on appeal is whether
 Sanchez is a Jones Act seaman. If he is, the district court must be reversed
 and the case remanded.
        Congress has not defined the term “seaman,” and the “difficult . . .
 task of giving a cogent meaning to [the] term has been left to the courts.” 5
 We are guided by the Supreme Court’s two-prong test, set forth in Chandris,
 Inc. v. Latsis: 6 (1) the employee’s duties “must contribute to the function of



        1
          See Sanchez v. Enter. Offshore Drilling LLC, No. CV H-19-110, 2019 WL
 2515307, at *4 (S.D. Tex. June 18, 2019); Sanchez v. Enter. Offshore Drilling LLC, 376
 F. Supp. 3d 726, 733 (S.D. Tex. 2019);
        2
           Holmes v. Atl. Sounding Co., 437 F.3d 441, 445 (5th Cir. 2006), abrogated on
 other grounds by Lozman v. City of Riviera Beach, Fla., 568 U.S. 115 (2013).
        3
            Chandris, Inc. v. Latsis, 515 U.S. 347, 354 (1995); 46 U.S.C. § 30104.
        4
            Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 455 (2001).
        5
            In re Endeavor Marine Inc., 234 F.3d 287, 290 (5th Cir. 2000) (per curiam).
        6
            515 U.S. 347, 368 (1995).




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                                           No. 19-20506


 the vessel or to the accomplishment of its mission,” 7 and (2) the employee
 “must have a connection to a vessel in navigation (or an identifiable group of
 such vessels) that is substantial in terms of both its duration and its nature.” 8
 The parties agree that Sanchez meets the first prong—he was “doing the
 ship’s work” as a welder and fitter. But SmartFab argues, and the district
 court found, that Sanchez fails the second.
        The Court’s substantial-connection prong was designed “to separate
 the sea-based maritime employees who are entitled to Jones Act protection
 from those land-based workers who have only a transitory or sporadic
 connection to a vessel in navigation.” 9 The Court has explained that “the
 total circumstances of an individual’s employment must be weighed to
 determine whether he had a sufficient relation to the navigation of the vessels
 and the perils attendant thereon.” 10
        To make this determination, Chandris instructs us to address both the
 quantity (duration) and quality (nature) of the worker’s duties aboard a vessel
 during his employment with his current employer. As to duration, the Court
 held in Chandris that, as a rule of thumb, a “worker who spends less than
 about 30 percent of his time in the service of a vessel in navigation should not
 qualify as a seaman under the Jones Act.” 11 And as to nature, the Court
 emphasized that we focus on the nature of the claimant’s connection with the
 vessel. 12 The Court then reiterated in Harbor Tug & Barge Co. v. Papai that


        7
            Id. This threshold requirement is “very broad.” Id.
        8
             Id.
        9
             Id. at 368.
        10
             Id. at 370.
        11
             Id. at 371.
        12
             Id. at 370.




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                                             No. 19-20506


 the Jones Act should only extend to “those workers who face regular
 exposure to the perils of the sea.” 13 It explained, “For the substantial
 connection requirement to serve its purpose, the inquiry into the nature of
 the employee’s connection to the vessel must concentrate on whether the
 employee’s duties take him to sea.” 14
          The district court held, and we agree, that Sanchez satisfies the
 duration requirement of the Chandris test. 15 Indeed, he spent over 70% of his
 employment with SmartFab aboard the ENTERPRISE WFD 350, and
 around 19% of his employment aboard the ENTERPRISE 263, two jack-up
 drilling rigs owned by Enterprise Offshore Drilling. 16 The question of
 whether he qualifies as a seaman thus narrows to whether the circumstances
 of his employment meet the nature test.




          13
               520 U.S. 548, 560 (1997).
          14
           Id. at 555. Papai engaged in maintenance—chipping rust and painting—
 aboard the docked vessels. Id. at 551. The court observed that his actual duty “did not
 include any seagoing activity; he was hired for one day to paint the vessel at dockside
 and he was not going to sail with the vessel after he finished painting it.” Id. at 559. The
 court ultimately held that Papai did not establish seaman status under the group of
 vessels concept (i.e., the fleet doctrine). Id. at 560.
          15
               Sanchez v. Enter. Offshore Drilling LLC, 376 F. Supp. 3d 726, 732 (S.D. Tex.
 2019).
          16
             On appeal, SmartFab argues that we may only look at Sanchez’s time spent
 on vessels on the Outer Continental Shelf. This is wrong. “[J]ack-up drilling platforms
 . . . are considered vessels under maritime law.” Barker v. Hercules Offshore, Inc., 713
 F.3d 208, 215 (5th Cir. 2013), SmartFab has made no showing that the docked jack-up
 drilling rigs had lost their vessel status, either because they were “withdrawn from the
 water for extended periods,” Cain v. Transocean Offshore USA, Inc., 518 F.3d 295, 300
 (5th Cir. 2008), or “being transformed through ‘major overhauls or renovations,’”
 Chandris, Inc. v. Latsis, 515 U.S. 347, 374 (1995) (citation omitted). Thus, the district
 court did not err in considering Sanchez’s time aboard the ENTERPRISE WFD 350.




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                                           No. 19-20506


        The district court answered that question in the negative and
 concluded that Sanchez was a shoreside worker. 17 The court observed that
 his work on vessels—primarily the work he completed on ENTERPRISE
 WFD 350—did not expose him to the perils of the sea, and the court
 therefore concluded that Sanchez was not a seaman. 18
        Our case law rejects such a narrow reading of the substantial-in-nature
 requirement. In In re Endeavor Marine, the plaintiff, a crane operator, worked
 on a moored derrick barge on the Mississippi River, where he loaded and
 unloaded cargo and helped to maintain the crane. 19 He was rarely required to
 board a moving vessel, and he never traveled beyond the immediate dock
 area. 20 The district court held that because his duties did not “take him to
 sea,” as Papai required, he did not qualify as a seaman. 21 We disagreed. 22 We
 held the plaintiff’s connection to the vessel was substantial in nature, because
 his connection to the barge regularly exposed him to the perils of the sea—
 namely, being “on the brown waters of the Mississippi River”—regardless
 of whether he actually went to sea. 23




        17
             Sanchez, 376 F. Supp. 3d 726, 732–733.
        18
             Id.
        19
          234 F.3d 287, 298 (5th Cir. 2000) (per curiam); see also In re Complaint of
 Endeavor Marine, Inc., No. CIV.A. 98-0779, 1999 WL 76586, at *1 (E.D. La. Feb. 11,
 1999).
        20
             Endeavor Marine, 234 F.3d at 289.
        21
             Id. at 291.
        22
             Id.
        23
             Id. at 291–92, 292 n.3.




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                                             No. 19-20506


        We followed Endeavor Marine fourteen years later in Naquin v.
 Elevating Boats, L.L.C. 24 There, the plaintiff, a vessel repair supervisor, was
 injured in a shipyard while working on a fleet of liftboats.25 The liftboats he
 worked on were either moored, jacked up, or docked in the shipyard canal. 26
 We rejected the argument that the work upon those vessels did not expose
 the plaintiff to the perils of the sea, even if the vessels were docked in a canal
 and rarely ventured beyond. 27 Finding “no basis to distinguish Endeavor
 Marine,” we held that working on a vessel docked or at anchor in navigable
 water satisfied the substantial in nature requirement. 28
        The nature of Sanchez’s employment cannot be distinguished from
 that of plaintiffs’ in Endeavor Marine and Naquin. First, Endeavor Marine
 makes clear that Sanchez can qualify as a Jones Act seaman so long as he is
 exposed to the perils of the sea, even if his duties are on a vessel jacked up
 next to a dockside pier. 29 Second, Naquin establishes that Sanchez can qualify
 as a seaman if he was “doing [a] ship’s work on vessels docked or at anchor
 in navigable water.” 30 This is true regardless of whether Sanchez was
 welding or operating marine cranes like the plaintiff in Naquin. “While . . .
 near-shore workers may face fewer risks, they still remain exposed to the




        24
             744 F.3d 927 (5th Cir. 2014).
        25
             Id. at 930.
        26
             Id.
        27
             Id. at 934–35.
        28
           Id. at 935. See also Grab v. Boh Bros. Const. Co., 506 F. App’x 271, 276 (5th
 Cir. 2013) (unpublished) (ironworker foreman on stationary crane barge on Lake
 Ponchartrain was exposed to perils of the sea).
        29
             In re Endeavor Marine Inc., 234 F.3d 287, 292 (5th Cir. 2000) (per curiam).
        30
             Naquin, 744 F.3d 927, 935 (5th Cir. 2014).




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                                            No. 19-20506


 perils of a maritime work environment.” 31 The district court underscored
 that the drilling rigs on which Sanchez worked were jacked up above the
 water, but the same was true for some of the liftboats in Naquin. 32 And, while
 the court emphasized that Sanchez was a land-based welder who went home
 every evening, we held in Naquin that such work aboard vessels was not
 disqualifying. 33 The cases are indistinguishable.
         Sanchez has therefore shown that he had a substantial connection both
 in nature and duration to the vessels on which he worked. The district court
 erred in holding that Sanchez was not a Jones Act seaman.
                                   III. CONCLUSION
         We REVERSE the district court’s judgment and REMAND
 WITH INSTRUCTIONS to remand the matter to the 165th Judicial
 District Court of Harris County, Texas.




         31
              Id. at 934.
         32
              Id. The other liftboats were moored or docked. Id.
         33
          Id. at 934. See also Grab v. Boh Bros. Constr. Co., L.L.C., 506 Fed. App’x. 271,
 276 (5th Cir. 2013) (unpublished) (“[T]he fact that [the injured employee] returned
 home daily did not remove him from his exposure to cognizable dangers of the sea.”).




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                                        No. 19-20506


 W. EUGENE DAVIS, Circuit Judge, specially concurring in the judgment,
 joined by JONES and Willet, Circuit Judges:
        Although this panel is bound by our precedent, for reasons discussed
 below, I am persuaded that our case law is inconsistent with the teaching of
 the Supreme Court. It is clear to me that Sanchez was a land-based fitter and
 welder whose duties did not take him to sea; consequently, he does not
 qualify as a seaman.
                                         I.
        The undisputed facts of this case are outlined in the majority opinion.
 Basically, Sanchez was a welder and fitter, who worked on jobs where his
 employer sent him to satisfy customer orders. He was land-based, lived at
 home, and traveled to and from work every day. During the 48 days he
 worked on the ENTERPRISE WFD 350, the barge was jacked up adjacent to
 and one step away from the dock. While he performed welding repair services
 on the barge, it was never jacked down into the water or moved away from
 the dock.
        Three Supreme Court cases are important to our analysis of whether
 Sanchez was a seaman. The first is McDermott International, Inc. v. Wilander. 1
 Most relevant to today’s case, the Court emphasized that maritime workers
 are covered under two acts—the Longshore and Harbor Workers’
 Compensation Act and the Jones Act—and that coverage under the two acts
 is mutually exclusive. 2 As such, the Court underscored the important
 distinction between land-based and sea-based maritime workers. 3 Only



        1
            498 U.S. 337 (1991).
        2
            Id. at 347.
        3
            Id.




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                                             No. 19-20506


  “[t]he latter, who owe their allegiance to a vessel and not solely to a land-
  based employer, are seamen.” 4 The Court went on to define seamen as
  workers who “contribute to the function of the vessel” or are “employed on
  board a vessel in furtherance of its purpose.” 5
         The Court further developed the relationship a worker must have to a
  vessel in order to be a seaman four years later in Chandris, Inc. v. Latsis. 6 The
  Court held that “the ultimate inquiry is whether the worker in question is a
  member of the vessel’s crew or simply a land-based employee who happens
  to be working on the vessel at a given time.” 7 The Court required that a
  seaman have a substantial connection to a vessel that is substantial in terms
  of both its duration and nature. 8
         While the Court did not expand on the “nature” element in Chandris,
  it did provide some important details to the requirement in Harbor Tug &
  Barge Co. v. Papai. 9 The plaintiff in Papai was land-based and worked on a
  group of tugs owned by three tugboat operators in the San Francisco Bay,
  where he did maintenance, longshoring, and deckhand work. 10 He was
  injured while doing painting work on one of the defendant’s tugs, the Pt.
  Barrow. 11 The Court first held that the plaintiff failed to establish seaman




         4
              Id.
         5
             Id. at 346, 355 (cleaned up).
         6
              515 U.S. 347 (1995).
         7
             Id. at 370.
         8
              Id. at 376.
         9
              520 U.S. 548 (1997).
         10
              Id. at 551.
         11
              Id.




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                                              No. 19-20506


  status under the “fleet doctrine.” 12 The Court also held that the plaintiff’s
  work was not substantial in nature. 13 It stressed: “For the substantial
  connection requirement to serve its purpose, the inquiry into the nature of
  the employee’s connection to the vessel must concentrate on whether the
  employee’s duties take him to sea.” 14 Such an inquiry, the Court explained, is
  “helpful in distinguishing land-based from sea-based employees.” 15 The
  Court then noted that the plaintiff’s “actual duty on the Pt. Barrow
  throughout the employment in question did not include any seagoing activity;
  he was hired for one day to paint the vessel at dockside and he was not going
  to sail with the vessel after he finished painting it.” 16 The Court concluded
  no percentage of his work “subject[ed] him to the perils of the sea.” 17
                                               II.
          Moving to the instant case, I am persuaded that our precedent has
  failed to apply the above Supreme Court authority correctly.



          12
            Id. at 559–60. The Court rejected Papai’s argument that the group of tugs
  operating in the San Francisco Bay Area served by Papai’s union was an identifiable
  group of vessels to which he had a substantial connection. Id. The Court explained that
  a worker could have a connection to a fleet of vessels only if those vessels are under
  common ownership and control. Id.
          13
               Id. at 559.
          14
               Id. at 555 (emphasis added).
          15
               Id.
          16
               Id. at 559.
          17
            Id. at 560. For an excellent discussion on the difficulties distinguishing
  between land-based and sea-based employment, see Kenneth Engerrand’s article,
  Escape from the Labyrinth: Call for the Admiralty Judges of the Supreme Court to Reconsider
  Seaman Status, 40 HOUS. J. INT’L L. 741, 779 (2018). See also Robert Force and Martin
  J. Norris, 1 THE LAW OF SEAMEN § 2:5–8 (5th ed. 2019) (for a comprehensive
  discussion of the cases on the subject).




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                                              No. 19-20506


          As the panel discusses, in In re Endeavor Marine Inc., the plaintiff
  worked as a crane operator unloading barges at a dock on the Mississippi
  River. 18 He also performed routine maintenance work on the same barge. 19
  The plaintiff was land-based, and his duties did not take him to sea or even
  out on the waters of the Mississippi River. 20
          In Naquin v. Elevating Boats, L.L.C., we relied on Endeavor Marine and
  held that plaintiff satisfied the nature element of the substantial connection
  requirement. 21 Our reliance was misplaced. The land-based plaintiff worked
  on dockside vessels and in a canal adjacent to the shipyard—his duties did
  not take him to sea or expose him to its perils. 22
          Applying the aforementioned Supreme Court caselaw, I agree that
  because Sanchez spent more than 70% of his employment time with
  SmartFab aboard the ENTERPRISE WFD 350, he satisfied the duration
  prong of the substantial connection requirement. Yet, as discussed above, I
  am persuaded that we did not correctly follow the Court’s dictates in holding
  that Sanchez satisfied the nature element of the substantial connection
  requirement. All of his welding work on the ENTERPRISE WFD 350 was
  done while the rig was jacked up adjacent to the dock. He was never assigned
  to sail on the vessel, and instead only had to take two steps off the rig and
  onto land every evening at the end of his shift. His work was essentially land-


          18
               234 F.3d 287, 289 (5th Cir. 2000) (per curiam).
          19
               Id. at 289, 293.
          20
               Id. at 292 n.3
          21
               Naquin v. Elevating Boats, L.L.C., 744 F.3d 927, 935 (5th Cir. 2014).
          22
             Id. at 930–31. See also id. at 943 (Jones, J., dissenting) (arguing that the
  plaintiff was not exposed to the perils of the sea because he “spent nearly all of his time
  dockside, repairing boats that were secured in the shipyard canal, or operating a land-
  based crane, or working in the shipyard fabrication shop”).




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                                           No. 19-20506


  based, never exposing him to the perils of the sea. I believe that we should
  take this case en banc and bring our jurisprudence in line with Supreme Court
  caselaw. 23




         23
             This would also be consistent with the Second Circuit’s approach in Matter
  of Buchanan Marine, L.P., 874 F.3d 356 (2d Cir. 2017). The plaintiff in that case worked
  on the Hudson River as a barge maintainer. Id. at 361. The court determined that the
  plaintiff’s work on the barges did not regularly expose him to the perils of the sea,
  because the barges were always moored in the Hudson. Id. at 367. Although the Second
  Circuit distinguished Naquin, its distinction is suspect—under our case law, the
  plaintiff there would most certainly satisfy the nature element of the substantial
  connection requirement.




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