Course & Scope of Employment

By its terms the Jones Act, which provides seamen with their right to bring suit against their employer for injuries sustained, the injury must be suffered in “the course and scope of his employment”.  Similarly, the Longshore and Harbor Workers’ Compensation Act provides relief to those workers whose injury or death “arises out of and in the course of employment”.  As you might imagine there have been a number of cases in which the courts have been tasked with determining if the seaman or longshoreman was in the course of his employment when injured.

In the case of the injured seaman this issue most often arises when the seaman is injured while on land. For instance, a seaman who has just been hired through his union, and was on his way to his assigned vessel in a taxi selected by his employer, was found to have been injured in the course of his employment.  The court found that he was in the service of the ship while en route to take up his assignment.  Generally the test the courts apply is whether the seaman was on a mission for or engaged in a task that furthered the mission of the vessel.  Thus, the seaman who is assigned the task of purchasing supplies and is injured while on land will be found to have capacity to sue his employer.  It is the nature of the work he is performing, at whose behest or instruction he is working, and for whose benefit he is performing the work that are critical in the analysis, not the site of the accident or injury.  Generally if the seaman is injured while conducting his personal business he is not afforded the right to sue his employer.  However, if he is temporarily assigned to shore duty when injured he does not lose his remedies under the Jones Act.

Interestingly, the courts have made a distinction between “blue water” seamen and “brown water” seamen. With respect to traditional “blue water” seamen serving on ships that call on foreign ports and are at sea for extend tours of duty, the courts have considered shore leave as well as travel to and from the ship as part of the seaman’s service to the vessel.  Thus, even if not explicitly engaged in ship’s business when injured on leave, he retains his remedy.  The courts have determined that even if on shore leave the “blue water” seaman is still answerable to the call of his ship and thus within the course and scope of his employment.

The distinction becomes a bit blurred in the case of the “brown water” seamen who return home every night, and travel to and from work.  Generally, but not all, courts have found that such seamen if injured going to and from work will not be in the course and scope of their employment at such times.  However, if the seaman can show that he was subject to be called at any time, he may be considered within the course and scope of his employment.

This writer successfully defended a case in which a mate on an inland towboat was killed in a motor vehicle accident while returning to his home in Arkansas.  The mate had allegedly been on duty 30 straight hours prior to departing the vessel for home on his regular crew change in Memphis, Tennessee. Approximately six hours later he was killed when his vehicle wrecked.  The evidence showed that the seaman lived but 110 miles from the dock where he disembarked.

Applying the rule in the Supreme Court case of Braen v. Pfeifer Oil Transport Co., 361 U.S. 129, the trial court employed two factors to determine whether a seaman is in the course and scope of his employment when injured: (1) the degree of control the employer-vessel owner had over the seaman at the time of the injury; and (2) whether the seaman, at the time of the injury, was on personal business or on a mission for the benefit of his employer or attending to the business of his employer.  Making the distinction between blue water and brown water seamen, the courts have found that the brown water seaman’s employment is arranged into definite, equal periods on shore and on the vessel.  As such they maintain to a large extent the home life of ordinary shore dwellers.  When they are off the vessel, they are replaced by another seaman. Thus, when they leave the vessel they are not subject to the call of duty.

In the subject case the Court found that at most it would have taken the seaman four hours to return home. His blood alcohol level showed that he had been drinking in the interim from the time he departed to the time of his wreck.  Finding that the decedent did not drive straight home but instead engaged in personal activities, there was no evidence that his actions after he left his vessel were motivated by an intent, desire or obligation to benefit his employer.  Thus his widow’s lawsuit was dismissed.

In these type cases the “course and scope” determination will depend on the particular facts of the case.  When faced with this issue the employer must investigate promptly and preserve all evidence and contact information with potential witnesses.