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The seamen who have walked the plank on statutory negligence remedies: the pilot's dilemma.

I. Introduction

Since the beginnings of shipping and maritime trade, the pilot has guided the fate of vessels on the seas and through the rivers and bays welcoming interstate and foreign commerce alike. The pilot, above all others, is entrusted with a vessel's safe passage. Possessing the knowledge and skill necessary to navigate through storms and treacherous waters, the pilot has found a place of pre-eminence in the maritime community.

Pilots as contemplated in this comment are those who carry "the ship out of or into the harbor to which the pilot belonged" as distinguished from "the pilot for the whole voyage, or the sea pilot." (1) The former class of pilots are those who function as instruments of the law and in most instances are provided by state mandate. (2) This distinction was initially drawn to relieve the ship owner from respondeat superior liability and allow recovery only as to the value of the ship as the offending party. (3) Additionally, it should be noted that pilots are further differentiated into those navigating vessels sailing under registry or engaged in foreign trade, and those sailing under enrollment or license. Enrolled vessels are navigated by Coast Guard-licensed pilots; registered vessels, to which this comment is directed, are navigated by state-licensed pilots. Delineating between the latter two pilot types is relevant when deciding whether to apply state or federal pilotage regulation in disciplinary matters. Such matters, however, are not of present concern. (4)

Harkening upon the great need for pilots trained well in their art, particularly in navigation of local rivers and sea inlets, many state legislatures have provided for piloting associations to ensure the smooth flow of maritime traffic and to lessen the occurrence of collision. (5) The propriety of navigation in local waters is solely occupied by these pilot associations. (6)

Pilot associations are organizations traditionally sanctioned by state laws, that provide a supply of pilots familiar with the idiosyncrasies of their respective pilotage grounds (7) and expert in its navigation for a given port. As members of the association, each pilot owns a single pro-rata share of its assets. (8) The association, however, does not employ the pilots nor does it pay their wages. Pilotage fees paid to individual pilots are collected by the association and dispersed after general maintenance and office expenses are paid. (9) At the end of each month the remaining balance is divided among the members based on the number of days each has worked. (10)

The selection process for pilot association membership conforms to state legislative direction under which applicants are scrutinized for their navigating skills. (11) In Louisiana, for instance, pilots are appointed by the Governor only upon certification of a state board of commissioners. (12) Only those who have completed an approved apprenticeship program and who possess specific qualifications, as determined by the board, may be considered by the Governor. (13)

As government regulated bodies, pilot associations are regarded for their high level of skill. A pilot must be aware of changing local conditions (14) and is "required to possess qualities of expertness and dexterity in the domain of his pilotage area." (15) The skill vital to navigation of seagoing vessels through precarious state waters has been the focal point of pilotage legislation in state and federal legislators.

In the Judiciary Act of 1789, Congress acknowledged the significance of pilots to the endurance of maritime commerce in the United States. (16) Under its power to regulate navigation, Congress, in effect, substantiated the various state laws imposing obligations of pilotage on vessels using their local waterways. (17) The congressional intent was to encourage the use of local pilots knowledgeable of the peculiarities of a given port or river and promote safe passage of in-coming and out-going vessels. (18)

II. Federal Statutory Protections

The Seamen's Act of 191519 and its later version, the Merchant Marine Act of 1920, amount to a congressional attempt to legislatively remedy the harsh environment accompanying marine occupations by establishing statutory protections for seamen injured in the course of their employment. (20) The statute, better known as the Jones Act, overruled The Osceola (21) and created a negligence action for, "Any seamen who shall suffer personal in jury in the course of his employment." (22) Under this act, which incorporates the Federal Employers' Liability Act (23) by reference, seamen could get the same full tort damages from their employers as could railway employees, and were not limited to workman's compensation. (24) The courts in qualifying what it meant to be a Jones Act seaman, formulated tests to aid in this determination.

The current seaman status test was first annunciated in Offshore Company v. Robison, (25) affirmed by McDermott International, Inc. v. Wilander, (26) and later modified by Chandris, Inc. v. Latsis. (27) This test requires that, (1) "an employee's duties must 'contribute] to the function of the vessel or to the accomplishment of its mission,'" and (2) "a seaman must have a connection to a vessel in navigation (or to an identifiable group of vessels) that is substantial in terms of both its duration (28) and its nature." (29) The rationale behind the test is to differentiate sea and land-based workers, (30) as congressional intent behind the Jones Act was intended to extend coverage to those workers who face regular exposure to maritime perils. (31)

In the years following its inception, the protection the Jones Act afforded seamen was so broadly construed that Congress felt it necessary to adopt another strategy. (32) As a result, Congress implemented the Longshore and Harbor Workers' Compensation Act (33) (LHWCA). By developing a separate system of compensation for injured land-based workers, Congress effectively narrowed the coverage of the Jones Act. (34) Therefore, the LHWCA has been instrumental in forming judicial perceptions of the meaning attributable to the Jones Act seaman by specifically excluding any person who was a "master or member of a crew of any vessel" from its coverage.

Initially, the body charged with the Act's implementation, the United States Employees' Compensation Commission, issued an opinion stating that a temporary pilot of a vessel, "though not strictly a master or member of a crew," is included within the term "master or member of a crew" and is not within the LHWCA's sphere of protection. (36) The expansive scope of the LHWCA following the 1972 amendments, however, leads one to think that maritime employees not covered by the Jones Act can find refuge under the LHWCA. (37) Even considering the encompassing purview of statutory mechanisms addressing maritime personal injury claims, pilots have not enjoyed such protection for their vocation-related injuries. No easy solution to the pilots' dilemma emerged and the confusion which has ensued is obviated by the disparity among the courts. (38) The jurisprudential fallout confined the benefits of the Jones Act to the "master or member of a crew of any vessel," which presently does not include pilots. (39) Although most maritime workers were statutorily distinguished, many whose connection to the sea was minimal could still garner Jones Act protection. (40)

In an attempt to close the gap between the Jones Act and the LHWCA, new tests and understandings of seamen status developed. (41) The unwavering desire for a bright line rule thrust the circuit courts into a perplexing struggle to capture the essence of what it meant to be a seaman. (42) Unaccommodating, rigid tests of the circuit courts caused cracks to form within the legislative structure for maritime personal injury coverage, (43) and into these cracks fell an obvious necessity of maritime commerce--the pilot. Due to membership in their associations or statutory interpretation, these pilots of the maritime community, although recognized by regulatory rules of federal and state governments, are not entitled the same protection afforded other maritime workers.

Under Jones Act claims, courts have construed "in the course of employment" and "seamen" against the interests of pilots. As understandings of the practical nature of the pilot's relationship to the vessel owner and the shipping business become more lucid, the tension created by unyielding Jones Act interpretation becomes more pronounced. Premised upon a desire to provide mariners with satisfactory working conditions in an industry so vital to local and global commerce, coverage of the Jones Act has been stretched to accommodate many not within its original contemplation. Its reach, however, does not encompass those traditional seafarers such as pilots. This commentary addresses the salient issues of Jones Act protection and how pilots are affected.

III. background

Unquestionably, the pilot has held a position of great importance to the maritime industry of the world. The safety of the crew and the ship is dependant on the mastery of the pilot over the ship and its environment. Historically, navigation was a profession fraught with considerable regulation and governance. (44) In and around the Mediterranean Sea, the stimulus for trade has ushered in a maritime commerce that has endured for over 5,000 years. (45) Beginning with the promulgation of the Rhodian Sea Laws, (46) regulating the commerce of the sea has proven essential to its longevity. The Rhodian Sea Laws have had such a strong tradition that the origins of modern maritime law in many jurisdictions can be traced to these ancient laws. (47)

The foundation of modern admiralty law in the United States, however, has been traced to the Rules of Oleron. (48) These rules have held a special place in our jurisprudence, for "when more recent authority fails, a court may look back ... for what

analogical help may be vouchsafed." (49) Although this sentiment was held by the United States Supreme Court of the nineteenth century, such evocations today are merely illustrative. (50) The Rules of Oleron and the Ordinances of Wisby comprise some of the earliest documents regulating the use of pilots. (51) By their very nature these medieval edicts have endorsed the pilot as an indispensable instrument of maritime commerce.

In the United States, federal courts were granted the power to hear "all Cases of admiralty, and maritime Jurisdiction" by Article III, Section 2 of the United States Constitution. (52) The admiralty court exists solely for the maritime industry: "Maritime commerce--and nothing more--is the raison d'etre for the courts and rules of admiralty." (53) The resulting decisions have developed into the General Maritime Law. (54)

At the turn of the Twentieth Century, the general consensus of opinion among the federal courts sitting in admiralty did not support negligence actions of seamen against owners or their vessels. (55) The Supreme Court in The Osceola, embedded this position into the General Maritime Law. (56) Finding that no English law or United States statute contained any provisions for in rem or in personam liability against the ship or her owner for negligent injury to the crew, (57) the Court confined the recovery of a crewman for damages, occasioned by the negligent orders of the master, to wages and expenses for maintenance and cure. (58) The Court also substantiated the doctrine of seaworthiness (59) as a valid remedy for crew members under the General Maritime Law. (60) In doing so, the action for negligence and the action for unseaworthiness when the injury was caused by an appurtenance of the ship (the ship's negligence) were effectually merged. Congress, however, observing the dismal conditions the shipping industry and the General Maritime Law provided for seamen, legislatively overruled The Osceola and divorced negligence from seaworthiness by enacting the Jones Act in 1920. (61)

Attaining the status of "seaman" for purposes of Jones Act coverage can prove to be as challenging as piloting a vessel through the waters of the lower Mississippi River. Not only must a mariner claiming protection under the Jones Act prove that he is a master or member of a crew of a vessel or fleet of vessels, but he must also satisfy an employment connection to the vessel owner from whom he seeks recovery. Although boarding pilots were once viewed as displacing the authority of the master, today such notions have no practical or legal basis, other than in reference to a pilot's negligence claim under the Jones Act.

IV. In the Course of Employment

The Supreme Court identified the congressional purpose behind pilot regulation as promoting the protection of life and property by establishing a supply of "pilots possessing full knowledge of the pilot grounds," and who are better equipped to navigate the local waters. (62) Acknowledging that the law of admiralty originated with the "commercial usages and jurisprudence of the middle ages," as it pertained to the "powers of the master and responsibility of the vessel," the Supreme Court indicated that it was not derived from the common law relationship of master and servant. (63) When considering the vessel's liability for the mistakes of the pilot, the Court noted that the vessel is not excused because the vessel was compelled to obey his command. (64) This is significant because the Supreme Court based its decision on these common law principles fifty years later. (65) Although judgments of the Court in this area only centered on collisions caused by the pilot's negligence, and not on negligent injury occasioned upon the pilot, (66) the analytical change in the Court's reasoning signaled the severance of pilots from the remedies available to traditional maritime workers. Following this linear conception, which as a matter of equity, gave birth to the compulsory pilot defense, (67) courts have extended the common law analysis to pilots for purposes of the Jones Act. (68) Although the principles are sound, they do not serve the interests of maritime commerce by excluding pilots from statutory personal injury or wrongful death coverage. Congress would not have intended to cast such a crucial member of the maritime community out of the purview of its enactments. (69)

Narrow construction of the usage of "in the course of his employment," as exclusively encompassing an action of a Jones Act claimant against the claimant's employer, (70) has forced pilots to walk the plank on Jones Act coverage for negligent injuries incurred while in the service of a vessel. (71) Because the Jones Act has been interpreted to exclude claims against any party other than a seaman's employer, pilots provided by operation of law and not voluntarily chosen, could have no claim for negligence under the Act. (72) Having posited that pilot service does not foster an employee/employer relationship, courts have alienated the pilot from traditional seafaring remedies. In considering whether a master-servant relationship exists for application of agency doctrine, courts have looked to the owner's ability to choose the pilot for his ship as well as the control that may be exerted over the pilot.

States incorporating systems of pilotage generally provide that the pilotage fee is compulsorily due to the pilot by the owner. In at least one state, this service is not necessarily compulsory and may be waived. (73) Under Texas law, which has revived the old system of half pilotage, the master of a vessel entering the "jurisdiction of a pilot board of a navigation district" may elect not to take a pilot and navigate the vessel himself. (74) Statutorily, the master would only be liable for one half the pilot's service fee had he taken one. (75) The master's choice to take the pilot, in that instance, should create the necessary master-servant relationship for the employment hurdle of Jones Act coverage. (76)

Taking a different tact, Washington State law provides that "[w]hen a pilot boards a vessel, that pilot becomes a servant of the vessel and its owner and operator." (77) Although refusal of the pilot's services are punished as a gross misdemeanor, making the services mandatory, the Washington State Legislature has ostensibly imported respondeat superior liability for its pilots' injuries. (78) Just across state lines, however the Alaskan State Legislature has denominated pilots as independent contractors that "may not be employed as an employee of the owner or operator of a vessel." (79) The varying state pilotage laws do not lend themselves to the uniformity courts in admiralty endeavor to create.

The system of providing pilots for service in an ordered fashion is not an attempt to destroy the power of choice, but an attempt to implement a necessary law in a workable fashion. Without such a course of doing business, (80) pilots would be dissuaded from considering an occupation that could not provide steady wages.

The shipowner's ability to control the movements of his ship while a pilot is aboard should also be considered when addressing whether an employment related connection exists. Although the pilot was once deemed not under a duty to obey the orders of the master concerning navigation, (81) the master is in a better position to know the peculiarities of the vessel he commands. It is evident by applicable case law that the master does not surrender complete control of the ship to the local pilot. (82) At the very minimum, the master has a duty to displace the pilot if the master is "sure that the pilot is for some reason incompetent." (83) The Supreme Court has noted that the master is "bound to keep a vigilant eye on the navigation of the vessel" and not only urge, but insist that precautions are taken. (84) The province of navigation is within the pilot's discretion, but the master is not "wholly absolved from his duties while the pilot is on board." (85) Today, it is considered customary in the marine industry that, "the responsibility for the ship remains with the Master while the pilot is on board. The Master uses all available information and, then, using his own personal judgment and experience, decides whether and how to proceed." (86)

While it would be in the master's best interests to abide by the pilot's decisions concerning navigation through the waters to which he is most accustomed, the master is not compelled to do so, especially in light of the master's ultimate responsibility for the ship and its crew. (87) Once the pilot tenders his services, though, the master is under an obligation to pay some form of remuneration whether he receives the services or not. (88) This pilot-master relationship does not foster the notion that control of the vessel is lost by the master (as representative of the owner) to a boarding pilot.

Taking its cue from Judge Brown's dissent in Bach v. Trident Steamship Co., (89) and the Wilander decision, (90) the district court in Evans v. United Arab Shipping Co., (91) found that a pilot who had sustained injury from a fall was in fact a Jones Act seaman. Evans, a forty year veteran licensed as a first class pilot by the State of Delaware and the United States Coast Guard, fell from a faulty accommodation ladder to the deck of a launch during disembarkation. (92) No longer able to work as a pilot, Evans brought suit against the vessel owner for his injuries. (93)

Designating its threshold question as whether the claimant was a seaman for purposes of the Jones Act, the court noted that such a determination was "of paramount importance" to his case given its standard of causation at the time. (94) The ultimate issue the district court endeavored to settle was the question left unresolved in Wilander. (95) The court sought to address the appropriate definition of "seamen" as it applied to the river pilot, "who has no permanent connection to any one ship yet whose only duties place him at the most important post on the ship--the ship's helm." (96) The court reasoned that within the Supreme Court's "aid in navigation" analysis, was the justification for Evans' seaman status. (97) At the time the Jones Act was passed pilots were considered seamen, thus Congress intended coverage to include them. (98)

On appeal, the Third Circuit reversed finding that the requisite employee/employer relationship was lacking. (99) Relying on the choice and control concepts of agency law and Evans' federal income tax treatment, (100) the court concluded that the Jones Act was not applicable. (101) The Third Circuit found against the pilot, but on separate grounds than the Fifth Circuit in Bach. (102)

In Avondale Industries, Inc. v. International Marine Carriers, Inc., a maritime tort and contract case, the Fifth Circuit broadened the responsibilities of the captain or master while a pilot is on board for navigation purposes. (104) Avondale Industries Inc. (Avondale) brought suit against the United States and its vessel operator, International Marine Carriers, Inc. (IMC) for damages caused by a collision to Avondale's shipyard property. (105) The master of the vessel U.S.N.S. BELLATRIX in Avondale, remained on the vessel's bridge while the pilot (106) maneuvered the vessel for a down river turn on the Mississippi River near the Huey P. Long Bridge. (107) Averting his attention to the repair of a faulty instrument, the master was not aware that the pilot had released the last remaining tug assisting the vessel's tow. (108) Without the aid of a tug, the BELLATRIX was unable to make the turn and collided with Avondale's dry dock. (109)

It should be noted, the master and the pilot both testified that the master was in full command at all times and the master testified that he had "countermanded" a pilot's orders on previous occasions. (110) The court, "not convinced that finding the master negligent in this situation would disrupt the normal reliance on pilots by masters," found that the master had an obligation to exert more control over the pilot when "it becomes manifest that the pilot is steering the vessel into danger." (111) The pilot's negligence as a contractor, however, could not be imputed to the Government or IMC because such was specifically opted out in the indemnities section of the contract between IMC, as agent of the United States, and Avondale. (112) Concluding that the government was comparatively responsible for Avondale's damages proximately caused by the Government's agents or employees, (113) the court weakened the pilotage defense as a favorite of vessel owners.

The problem that arises when considering the province of the master over the pilot, is that legal doctrine is just recently focusing in on the practical nature of the master-pilot relationship. Viewing the nineteenth century notions of this relationship in a more contemporary light, (114) the pilot is no longer understood as displacing the master's authority over the vessel, but is in a position much the same as the crew; the pilot is hired to do the ship's work and his orders can be countermanded by the master just as any other officer on board.

Applying the Avondale decision (115) to the control element of agency doctrine, pertaining to the pilot as a servant of the ship owner or one engaged to serve the same, (116) the notion that the pilot is not fulfilling the requisite employment relationship becomes more obscure. There are, however, those who find comfort in categorizing pilots as independent contractors (instead of seamen) temporarily employed for their expertise. (117) As an independent contractor, the pilots' remedy for negligence would not lie in the Jones Act, but in a general negligence claim as a passenger or other invitee. (118) Such a classification ridicules historical treatment of the pilot as essential to the maritime industry for whom the law of admiralty endeavors to protect. This sentiment is emphasized by the early status tests focusing on navigational duties. (119)

V. Seaman Status

The inquiry into seaman status for Jones Act coverage involving personal injuries caused by negligence has been said to begin with Warner v. Goltra. (120) There the Supreme Court first considered the term "seamen" as it applies to sea-based maritime workers. (121) The Court recognized the expansive nature that the definition of "seamen" has taken on since the days when the word "undoubtedly once meant a person who could Tiand, reef and steer/ a mariner in the true sense of the word." (122) Just as courts today have broadened the definition to encompass many whose connection to the sea is by fortuity of their special landside skills, (123) the Warner court found that the intent of Congress, in fashioning the Jones Act, was to include persons who otherwise might not be deemed "seamen", but that "it does not take anyone out who would otherwise be there." (124)

The Supreme Court in Wilander, embracing this reasoning, examined the meaning of "seamen" in the context of historic chronology. (125) The Wilander Court, rectifying a split between the Fifth and Seventh Circuits, broadened the "seamen" denotation by holding that qualification as a seaman does not necessarily include navigational duties. (126) Looking back to pre-1920 notions of what it meant to be a seaman under the General Maritime Law, the Court provided substantiation to a term which was left undefined by the Jones Act. (127)

The Court in Wilander answered the status question as to a paint foreman who was injured on a fixed platform, but was as signed to the American-flag vessel M/V GATES TIDE. (128) The boat was chartered to McDermott International, Inc. and was used primarily for sandblasting and painting operations on platforms. Although focus was on the narrow issue of whether the Jones Act only applied to seamen who performed transportation-related functions, the Court believed that "seamen" should be defined, "solely in terms of the employee's connection to a vessel in navigation," with regard to Congress' land or sea-based distinction. (129) By forwarding a policy of reliance on the status rules of the circuit courts that is neither rigorous nor unwavering, the Supreme Court has implicated a grass-roots approach for determining seaman status. (130) The Court, attempting to maintain these ideals, consistently refers to the purposes of the tests it formulates. (131) Where the status doctrines fail to uphold the impetus behind the Jones Act and General Maritime Law, the Court has left a fluidity which the circuit courts have failed to apply to pilots. Strict adherence to rigid tests does not accommodate legislative policy concerns. (132) Such a construction would be justified when the status inquiry is based on a tenuous connection to the sea. Where the claimant faces the perils of the sea on a regular basis and is engaged in traditional maritime duties, however, a more liberal application is warranted. (133)

Originally supporting this view, the United States Court of Appeals for the Fifth Circuit, in Bertrand v. International Mooring & Marine, Inc., (134) held that the applicability of the common ownership rule of the fleet doctrine to a group of anchorhandlers should not be determinative of seaman status. (135) The Bertrand court did not want to deny Jones Act coverage to marine workers who would otherwise satisfy the Robison criteria, simply because their employer chose to charter the vessels they worked aboard rather than own them. (136) Since the anchorhandling crew worked on twenty-five different vessels approximately ninety percent of the time, the court had no trouble finding that the crew was continuously assigned to vessel-related activity for consideration of the substantial connection criterion. (137) Fulfillment of the requirements under the Jones Act test for seaman's status, as the court advocated, should be viewed in relation to the nature and location of the whole of the claimant's work. (138)

According the Robison decision, the Bertrand court noted that requiring common ownership and control for seamen working on many vessels, but not when the work involves a single vessel, "is inconsistent with the liberal construction of the Jones Act that has characterized it from the beginning and is inconsistent with its purposes." (139) As the Bertrand court admonished, the connection to a vessel must also be more than transitory, but "a person whose duties are truly navigational" should not be denied Jones Act sea man status "merely because he serves aboard a vessel for a relatively short period of time." (140)

In Bach I, the Fifth Circuit sought to resolve the question regarding the requirement of the fleet doctrine, "whether the same principle governs the crewmember status of the maritime worker who spends virtually all of his time performing traditional seaman's duties, work closely related to the movement of the vessels, but does his work on short voyages aboard a large number of vessels" left unresolved in Barrett v. Chevron, U.S.A., Inc. (141) Bach was a river pilot for the area between New Orleans and Pilot-town when he suffered a fatal heart attack minutes after boarding the M/V JAYMAT TRIDENT. (142) Following the pilot's collapse, no one on board attempted to revive him, even though several were trained in cardio-pulmonary resuscitation techniques. (143) His survivors, in their Jones Act claim, attempted to establish that Bach fulfilled the permanency requirement under the rule of Barrett. (144) The court, rejecting this contention stated, "[w]e made it clear in Barrett that 'fleet' means more than simply 'any group of vessels an employee happens to work aboard.'" (145)

Reconciling its decision with the need for strict adherence to the rule of law and uniformity among the circuits, the court in Bach foreclosed a determination of seaman status for pilots by holding that there were no exceptions to the fleet requirement of Jones Act status, even for one as wet as the river pilot. (146) This decision was stringently dissented from by Judge John R. Brown. (147) Characterizing the pilot as an indispensable member of the seafaring community, Judge Brown focused on the historic treatment of pilots by lore and law. (148) Tracing the roots back to the European Laws of Oleron and the American Judiciary Act of 1789, (149) Judge Brown paints a vivid picture of the pilot as an important element of the continuing vitality of maritime commerce. Highlighting the Supreme Court's past interpretation of the Jones Act, the venerable judge observed that given the nature of the pilot's calling "the interchange of 'seaman' and master and 'member of a vessel' ought not to cut off a pilot from the congressional contemplation of seaman in 1920." (150)

Similarly, in Hall v. Professional Divers of New Orleans, (151) a commercial diver was killed while participating in a salvage operation and an action was brought by his survivors under the Jones Act. (152) The district court, acknowledging the fleet requirement of Barrett, (153) noted that the Fifth Circuit never overruled Wallace v. Oceaneering International; (154) and that the Bach decision, which expressly aimed at settling the Barrett question, created a conflict with Wallace. Citing the rule of United States v. Miro, (155) the district court concluded that the permanency necessary for application of the fleet doctrine was not dispositive of Jones Act status, and condemned the Fifth Circuit's approach to hard core mariners by affirming the reasoning of Wallace. (156)

The Wallace decision, which the Court in Chandris cites as guiding authority, clearly espouses the view that the finer distinction in status inquiries is between laborers whose principal duties are of the "type ordinarily associated with activities based on land or fixed platforms," and those whose work was "of a traditional maritime flavor." (157) The court opined that the commonly owned identifiable fleet cases in which Jones Act protection was denied, must be gauged, in the instance of a hard core maritime worker, against "the type of duties performed by those workers, where such duties are normally performed, and the extent to which the workers were exposed to maritime hazards." (158)

Following Bertrand's lead, the Wallace court, while admonishing that the fleet concept has been used to broaden coverage under the Jones Act, "not restrict it," (159) urged consideration of the totality of the circumstances to determine "the relation of the vessel-related activities to claimants' total responsibilities," noting that no single fact can be determinative of seamen status. (160) The court's analysis stands squarely opposed to a strict interpretation of the fleet doctrine, especially for mariners in the classical sense, who perform their calling without regard to the dangers of the rivers and seas. Although the Wallace decision involved a professional diver, the breadth of its analysis extends beyond its facts and should encompass the pilot as a "ward of the admiralty." (161)

In Wisner v. Professional Divers of New Orleans, (162) a commercial diver who worked for Professional Divers of New Orleans, Inc. (PDNO) was injured in the course of his employment. (163) The claimant worked on fourteen different vessels owned by several different companies while employed by PDNO. (164) By reviving the test first articulated in Robison and focusing on "whether Wisner's duties were primarily sea-based activities," the Louisiana Supreme Court precluded the application of the modified Chandris-Papai rule. (165) Papai and Chandris did not specifically apply because those cases focused on land-based activities that were performed on vessels; (166) in no respects were hard core maritime tasks involved. Addressing the first prong of the Robison test, the court in Wisner noted that the underlying rationale of the permanency requirement is not "to deprive a person whose duties are truly navigational of Jones Act rights, merely because he serves aboard a vessel for a relatively short period of time." (167) This is the point that the Fifth Circuit in Bach specifically resists by strictly construing the status test. (168) The substantial connection requirement of the first prong of the Robison test, as the court argues, may be used as a means of distinguishing between sea-based and land-based employees. (169) The court then dismissed the second prong, contribution to the function of the vessel, as being easily met, stating that the seaman must only be doing the ship's work. (170)

Concentrating on the "inherent maritime nature of the tasks and the perils faced by Wisner," the court gave little credence to the "fortuity of his tenure on various vessels." (171) The decision reaffirmed Wallace by holding that if the claimant is a hard core maritime employee and incurs the risks of the sea then seaman status is appropriate. (172)

The Fifth Circuit, specifically addressing footnote thirteen of Barrett in its Bach decision, chose not to "exempt workers who perform traditional seaman's work on a large number of unconnected vessels from the vessel connection prong" of the test for seaman status. (173) In a recent case, however, the Fifth Circuit has retreated from its strict adherence to the fleet doctrine. In Roberts v. Cardinal Services, Inc., (174) Judge Wiener, advocated the "well-established exception" to the thirty percent substantial connection requirement, "when claimants are continuously subjected to the perils of the sea and engaged in classical seaman's work," and the vessels are not under common ownership or control. (175)

Although Roberts, who worked in the defendant's plugging and abandoning department, was found not to have established the elements of the court's "conjunctive test" for seaman's status, the court took the opportunity to affirm the Louisiana First Circuit Court of Appeal's curtailment of Wisner in Little v. Amoco Production Co. (176) Holding that Roberts was not a seaman because his job was "an art developed in land work and transposed to a maritime setting," Judge Wiener limited Wisner to maritime workers "whose duties may be classified as classical seaman's work." (177) The Roberts opinion, though challenging Bach, does not specifically overrule the decade old case. (178) Just as the court in Bach disregarded the decisions in Wallace and Bertrand, so to did the Roberts court disregard the narrow interpretation of the fleet doctrine in Bach. Whether the Fifth Circuit has changed course on seaman status is unclear, but one has to wonder how this well established, traditional seamen exception has suddenly emerged in its jurisprudence.

VI. Conclusion

The Supreme Court, speaking of the convoluted status inquiry into the scope of the Jones Act, stated, "We have made a labyrinth and got lost in it. We must find our way out." (179) The conflict over the status question has been embedded in the disparity between upholding admiralty policy and maintaining the rule of law. The trouble courts have encountered in deciphering seaman status rests in the fact that "the jurisprudential interpretation of a seaman encompasses several factors, none of which is conclusive." (180)

Where Bach focused on seaman's status, Evans looked to employment as its exclusionary tact. Although the result was the same, the disjointed reasoning between the two circuits attests to the confusion in the federal judiciary and solidifies the need for clarity. Disqualifying pilots from seamen status ignores their relationship to maritime commerce. Pilots are hard core maritime laborers that routinely are exposed to "the special hazards and disadvantages to which they who go down to the sea in ships are subjected." (181) Although courts have paid lip-service to the pilot's "archetypical seaman function," (182) doctrinal justification has precluded such findings. Untangling the status inquiry is the sine qua non of Jones Act protection for pilots and similarly situated seamen.

As Wilander suggests, credence should be given to the meaning of "seaman" at the time the Jones Act was contemplated. (183) When considered together with the purpose of the Jones Act (184) and the Supreme Court's directive of translating this purpose into a language most conducive to coverage for seamen, there should be no reservation as to broadening rights under the general rule to incorporate traditional seafaring professions. The Roberts exception for seamen who regularly face the perils of the sea and perform traditional seaman's functions, might just be that beacon guiding the pilot through the treacherous jurisprudential waters to Jones Act protection, and imputing liability upon the logical source of his negligence claim.

(1.) Theophilus Parsons, Parsons on Maritime Law 479 (Little, Brown & Co. 1859).

(2.) Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty [section] 7-16 at 520 (2d ed. 1975); Consol. Coastwide Co. v. Lee Towing Line, Inc., 278 F. 918, 920 (2d Cir. 1922); Homer Ramsdell Transp. Co. v. Compagnie Generale Transatlantique, 63 F. 845, 848-50 (S.D.N.Y. 1894) (employing an actual service theory wherein the owner would be liable for the mistakes of the pilot without regard to owners right to choose, "though placed in that service by the provident act of the legislature").

(3.) Bach v. Trident S.S. Co., 920 F.2d 322, 331 n.21, 25, 1991 A.M.C. 928, 942 (5th Cir.) vacated by 500 U.S. 949, remanded to 947 F.2d 1290, 1992 A.M.C. 643 (5th Cir. 1991), cert, denied, 504 U.S. 931 (1992) (discussing Anderson v. Pac. Coast S.S. Co., 225 U.S. 187, 196 (1912)); The Bulley, 138 F. 170, 172 (S.D.N.Y. 1905); Smith v. Clark, 22 F. Cas. 497, 507 (E.D. Pa. 1853); The Barnstable, 181 U.S. 464,467 (1901).

(4.) Although the dichotomy of state and federal pilotage regulation is an important issue in itself, this comment does not engender such an in-depth analysis as would be necessary to review this issue. See generally Barry W. Ashe, Disciplining Maritime Pilots: A Review of State and Federal Pilotage Regulation, 58 Tul. L. Rev. 1460 (1984) (discussing the dynamics of federal and state systems of pilotage regulation as it relates to safe navigation in United States).

(5.) David J. Bederman, Compulsory Pilotage, Public Policy, and the Early Private International Law of Torts, 64 Tul. L. Rev. 1033,1042 (1990).
   The rationale for compulsory pilotage is straightforward enough.
   Navigation in and out of ports and harbors, and within restricted
   waters, poses special hazards that are not presented when sailing
   on the high seas. Maneuverability is reduced. Obstructions and the
   congestion of other vessels make the risk of collision or allision
   high. Furthermore, the usual rules of navigation, the nautical
   'rules of the road,' are often suspended or altered by custom or
   local regulation in roadsteads and harbors. Foreign vessels that
   are unfamiliar with local conditions require a navigator skilled
   and knowledgeable in those ways. Id.

(6.) Considering the instance of the Crescent River Port Pilots' Association, these organizations are non-profit corporations purposed "to effect the corporate association of licensed and commissioned ... [pilots], for their mutual benefit and social betterment," and, "to provide for a pension and welfare plan for retired shareholders of this corporation, and for their families." Blancq v. Hapag-Lloyd A. G., 986 F. Supp. 376, 382, 1998 A.M.C. 1440, 1449 (E.D. La. 1997) (Plaintiffs Supplemental Memo., Attach., Art. Ill and Art. VII).

(7.) Pilotage grounds encompass the area of the water body over which the pilot's province can be found. In Louisiana, such grounds along the Mississippi River extend: from the Gulf of Mexico to Pilottown, from Pilottown to the port of New Orleans and from New Orleans to Baton Rouge, each stretch with its respective pilot organization. Hayden v. New Orleans Baton Rouge S.S. Pilots Fee Comm'n, 707 So.2d 3, 5 (La. 1998); La. Rev. Stat. Ann. [section][section] 34:943, 996, 1043 (West 1985 & West Supp. 2002).

(8.) Dampskibsselskabet Atlanta A/S v. United States, 31 F.2d 961, 961 (5th Cir. 1929).

(9.) Dampskibsselskabet, 31 F.2d at 961.

(10.) Id.

(11.) Pilot Associations have recently come under fire for their nepotistic practice of selecting candidates to be trained as river pilots, but such was ruled constitutional by the United States Supreme Court in Kotch v. Bd. of River Pilots Comm'rs, 330 U.S. 552 (1947). Keith Darce' & Jeffrey Meitrodt, River Barons: All in the Family, The Times-Picayune, New Orleans, Nov. 5, 2001, at A-4. See also James W. Torke, Nepotism and the Constitution: The Kotch Case--A Specimen in Amber, 47 Loy. L. Rev. 561 (2001) (discussing pilots in a historical context and examining the United States Supreme Court's decision in Kotch).

(12.) Kotch, 330 U.S. at 554 (1947). The board of commissioners is usually composed of existing members of the association who are themselves pilots. Id.; La. Rev. Stat. Ann. [section][section] 34:942, 1072 (West 1985). Among Louisiana pilot associations, which vary in "the amount of experience ... and the length of the apprenticeship programs," there is not a time in recent memory that the Governor has failed to approve a candidate. Keith Darce' & Jeffrey Meitrodt, River Barons: Pilot Primer, The Times-Picayune, New Orleans, Nov. 4, 2001, at J-910.

(13.) La. Rev. Stat. Ann. [section] 34:993 (West Supp. 2002) (qualifications of river port pilots); Id. [section] 34:942 (West Supp. 2002) (qualifications for bar pilots); id. [section] 34:1045 (West Supp. 2002) (qualifications of New Orleans and Baton Rouge Port Pilots).

(14.) Pac. Alaska Fuel Servs. v. M/V MIYOSHIMA MARU, No. A91-0549 Civ. (JWS), 1994 WL 739434, at *10 (D. Alaska Feb. 1, 1994).

(15.) Id. (citing J.I. Crowley, In the Wake of Exxon Valdez: Chartering the Course of Pilotage Regulation, 22 J. Mar. L. & Comm. 165, 171 (1991)). Where the pilot is on board pursuant to state pilotage laws the "degree of care is further marked." Id.

(16.) Cooley v. Bd. of Wardens, 53 U.S. 299, 302 (1851) (quoting the Judiciary Act of 7th August, 1789, [section] 4,1 Stat. 53, 54 (1789), 46 U.S.C. [section] 8501(a) (1994)).
   That all pilots in the bays, inlets, rivers, harbors, and ports of
   the United States, shall continue to be regulated in conformity
   with the existing laws of the state, respectively, wherein such
   pilots may be, or with such laws as the states may respectively
   hereafter enact for the purpose, until further legislative
   provision shall be made by Congress.


(17.) Kotch, 330 U.S. at 559.

(18.) The Judiciary Act of 1789 states:
   [The laws] rest upon the propriety of securing lives and property
   exposed to the perils of a dangerous navigation, by taking on board
   a person peculiarly skilled to encounter or avoid them; upon the
   policy of discouraging the commanders of vessels from refusing to
   receive such persons on board at the proper times and places; and
   upon the expediency, and even intrinsic justice, of not suffering
   those who have incurred labor, and expense, and danger, to place
   themselves in a position to render important service generally
   necessary, to go unrewarded, because the master of a particular
   vessel either rashly refuses their proffered assistance, or,
   contrary to the general experience, does not need it.

Cooley, 53 U.S. at 312.

(19.) Ch. 153, [section] 20 38 Stat. 1164, 1185 (1916), [section] 8337(a) (ruled irrelevant by Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 384 (1918)).

(20.) 46 U.S.C. app. [section] 688 (1994). Before the Jones Act, conditions on ships were described as, "deplorable, health and safety regulation was ineffective and navigation law 'denied sailors legal status necessary to assert basic rights.'" H. Davis Bess & Martin T. Farris, U.S. Maritime Policy 37 (1981) (quoting Samuel A. Lawrence, United States Merchant Shipping Policies and Politics 37 (1966)).

(21.) 189 U.S. 158, 2000 A.M.C. 1207 (1903) (holding that seamen can only maintain an action for maintenance and cure or unseaworthiness; claims for negligence of the master or another crew member, however, is not recoverable).

(22.) 46 U.S.C. app. [section] 688(a); Chandris, Inc. v. Latsis, 515 U.S. 347, 354 1995 A.M.C. 1840, 1844 (1995) (citing The Osceola, 189 U.S. at 175).

(23.) 45 U.S.C. [section][section] 51-59 (1994). The original purpose of Federal Employers' Liability Act was to expressly abolish or modify common-law limitations on recovery for railway workers in negligence actions against their employers. Metro-N. Commuter R. Co. v. Buckley, 521 U.S. 424, 424, 1997 A.M.C. 2309, 2311 (1997). In 1908, Congress sought to create a remedy for the "injuries and death resulting from accidents on interstate railroads." Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 533, 1994 A.M.C. 2113, 2119 (1994) (citing Urie v. Thompson, 337 U.S. 163, 184 (1949)). This framework for determining liability in industrial accidents was decidedly similar to that of the shipping industry, so the Jones Act was based on its remedial scheme. Like the Jones Act, FELA has been interpreted liberally to effectuate its humanitarian purpose. Id. at 542.

(24.) Miles v. Apex Marine Corp., 498 U.S. 19, 29 1991 A.M.C. 1, 8 (1990).

(25.) 266 F.2d 769, 1959 A.M.C. 2049 (5th Cir. 1959).

(26.) 498 U.S. 337, 1991 A.M.C. 913 (1991).

(27.) 515 U.S. at 368-72.

(28.) Chandris, 515 U.S. at 368 (quoting Robison, 266 F.2d at 779); Fisher v. Nichols, 81 F.3d 319, 322, 1996 A.M.C. 1936, 1940 (2d Cir. 1996) (stating that a crewman in a sailing race, employed for only one day, met the durational requirement for seaman status under the Jones Act because Fisher's "entire career up to and including the moment he suffered the injury was dedicated to sea-based work").

(29.) Robison, 266 F.2d at 779; Wilander, 498 U.S. at 354-55; Chandris, 515 U.S. at 368 (identifying the purpose of the Jones Act as separating "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, and therefore whose employment does not regularly expose them to the perils of the sea").

(30.) Chandris, 515 U.S. at 364. "We have, until now, left to the lower federal courts the task of developing appropriate criteria to distinguish the 'ship's company' from those members of the maritime community whose employment is essentially land based." Id.

(31.) Wilander, 498 U.S. at 354; Wallace v. Oceaneering Int'l, 727 F.2d 427 (5th Cir. 1984).

(32.) Int'l Stevedoring Co. v. Haverty, 272 U.S. 50 (1926). "It was thought that both the language and the policy of the Act indicated that ... Congress intended to extend them to stevedores," whose work is primarily land-based. Swanson v. Marra Bros., 328 U.S. 1, 4, 1946 A.M.C. 715, 716-17 (1946).

(33.) 33 U.S.C. [section][section]901-950(1994).

(34.) Id.; 46 U.S.C. app. [section] 688(a).

(35.) 33 U.S.C. [section] 902(3)(G).

(36.) Longshoremen's Act, Opinion No. 22, 1928 A.M.C. 263 (Nov. 26, 1927); 33 U.S.C. [section][section] 901-950; Clark v. Solomon Navigation, Ltd., 631 F. Supp. 1275, 1281,1986 A.M.C. 2141, 2148 (S.D.N.Y. 1986).

(37.) The major change to the LHWCA by the 1972 amendments, as it pertained to pilot coverage, concerned the definition of 'employee.' 33 U.S.C. [section] 902(3) provides:
   The term 'employee' means any person engaged in maritime
   employment, including any longshoreman or other person engaged in
   longshoring operations, and any harbor worker including a ship
   repairman, shipbuilder, and shopbreaker, but such term does not
   include a master or member of a crew of any vessel, or any person
   engaged by the master to load or unload or repair any small vessel
   under eighteen tons net.

33 U.S.C. [section] 902(3); Dir., Office of Workers' Comp. Programs, United States Dep't of Labor v. Perini N. River Ass'n, 459 U.S. 297, 313, 1983 A.M.C. 609, 622-23 (1983) (attempting to resolve the inconsistencies within the LHWCA created by the 1972 amendments); Blancq, 986 F. Supp. at 380. The 1972 amendments also eliminated the doctrine of seaworthiness as a remedy available to those covered by the LHWCA wherein Congress "expressly abrogated] the 'warranty' of seaworthiness and specifically prohibited] the vessel's attempts to seek indemnity from the stevedore employer." 33 U.S.C. [section] 905(b); Aparicio v. Swan Lake, 643 F.2d 1109, 1116, 1981 A.M.C. 1887, 1897-98 (5th Cir. Unit A Apr. 1981); see Wilander, 498 U.S. at 348; Miles, 498 U.S. at 28.

(38.) See Blancq, 986 F. Supp. at 381 (comparing Harwood v. Partredereit, 944 F.2d 1187, 1189, 1992 A.M.C. 375, 381-82 (4th Cir. 1991) (pilot covered by LHWCA); Clark, 631 F. Supp. at 1282-83 (pilot not covered by LHWCA); Ringering v. Compania Maritima De-La Mancha, 670 F. Supp. 301, 303, 1987 A.M.C. 1935, 1937-8 (D. Or. 1987) (stating that a pilot is a seamen and not covered by LHWCA)). 33 U.S.C. [section] 905(b) provides some clarity as to the pilot's place outside the LHWCA's protection. While the pilot is availed of an action for seaworthiness, a longshoreman or harbor worker covered by the LHWCA is not. This suggests that the pilot's seaman status has no statutory relevance for an in personam action against the owner of a vessel, but under the general maritime law the same status enlists a different result.

(39.) 46 U.S.C. app. [section] 688(a); 33 U.S.C. [section] 902(3)(A); Robison, 266 F.2d at 774; Swanson, 328 U.S. at 1.

(40.) See supra note 28; see infra notes 123, 132.

(41.) For an overview of the development of seamen status as it pertains to this comment see generally Steven S. Reilley, A New Era in Seaman Status Issues, 10 U.S.F. Mar. L.J. 1 (1997). See also Offshore Co. v. Robison, 266 F.2d 769, 1959 A.M.C. 2049 (5th Cir. 1959); Bertrand v. Int'l Mooring & Marine Inc., 700 F.2d 240, 1984 A.M.C. 1740 (5th Cir. 1983); Wallace v. Oceaneering Int;l, 727 F.2d 427 (5th Cir. 1984); Barrett v. Chevron, 781 F.2d 1067, 1986 A.M.C. 2455 (5th Cir. 1986); McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 1991 A.M.C. 913 (1991); Bach, 947 F.2d 1290, 1992 A.M.C. 643 (5th Cir.1991); Evans v. United Arab Shipping Co., 4 F.3d 207, 1993 A.M.C. 2705 (3d Cir. 1993); Chandris, Inc. v. Latsis, 515 U.S. 347, 1995 A.M.C. 1840 (1995); Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 1997 A.M.C. 1817 (1997); Roberts v. Cardinal Servs., Inc., 266 F.3d 368, 2002 A.M.C. 83 (5th Cir. 2001).

(42.) See Chandris, 515 U.S. at 369 (stating, "we think it preferable to focus upon the essence of what it means to be a seamen and to eschew the temptation to create detailed tests to effectuate the congressional purpose, tests that tend to become ends in and of themselves").

(43.) Blancq, 986 F. Supp. at 382 (citations omitted).

(44.) Parsons, supra note 1, at 479.

(45.) Benedict on Admiralty [section] 2 at 1-4 (Steven F. Friedell et al. eds., 7th ed. 2000).

(46.) Id. at [section]3 at 1-7.

(47.) Id. at [section] 2 at 1-6.

(48.) Gilmore & Black, supra note 2, at 7.

(49.) Bach, 920 F.2d at 328 (Brown, J., dissenting) (quoting Gilmore & Black, supra note 2, at 7).

(50.) Gilmore & Black, supra note 2, [section] 1-16 at 46 n.153. Judge Brown, however, revisiting the laws of antiquity to support the notion that pilots are indispensable to maritime commerce in his dissenting analysis. See also Bederman, supra note 5, at 1041.

(51.) Bederman, supra note 5, at 1033; see also, Jackson v. Marine Exploration Co., 583 F.2d 1336, 1339 n.3 (5th Cir. 1978) (citing Ex parte McNiel, 80 U.S. (13 Wall.) 236, 239 (1871)).

(52.) U.S. Const, art. HI, [section] 2. As admiralty jurisdiction pervades into every aspect of maritime commerce, it is important to mention the jurisdictional nexus required. But such a discussion is beyond the focus of this comment. For an overview of the modern jurisdictional development see generally Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 1973 A.M.C. 1 (1972); Foremost Insurance Co. v. Richardson, 457 U.S. 668, (1982); Sisson v. Ruby, 497 U.S. 358, 1990 A.M.C. 1801 (1990); see also Mary Garvey Algero, Ebb and Flow of the Tide: A Viable Doctrine for Determining Admiralty Jurisdiction or a Relic of the Past?, 27 Seton Hall L. Rev. 138 (1996) (examining astutely the locality requirement with an eye toward revivalism) and Fredrick Swaim, Jr., Yes, Virginia, There is an Admiralty: The Rodrigue Case, 16 Loy. L. Rev. 43, 44 (1970) (giving a portentous critique of pre-Executive Jet jurisdictional concerns).

(53.) Swaim, supra note 52, at 44.

(54.) Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 383 (1918); S. Pac. Co. v. Jenson, 244 U.S. 205, 216 (1917); The Lottawanna, 88 U.S. 558, 574-75 (1874).

(55.) The Osceola, 189 U.S. 158, 2000 A.M.C. 1207 (1903) (describing the sentiment among the admiralty courts in concluding that a negligence action was not available to seamen under the general maritime law at that time).

(56.) Id.

(57.) The Osceola, 189 U.S. at 171-172.

(58.) Id. at 175.
   That all members of the crew, except, perhaps, the master, are as
   between themselves, fellow servants, and hence seamen cannot
   recover for injuries sustained through the negligence of another
   member of the crew beyond the expense of his maintenance and cure
   ... That the seaman is not allowed to recover an indemnity for
   negligence of the master, or any member of the crew, but is
   entitled to maintenance and cure, whether the injuries were
   received by negligence or accident.


(59.) See Kristin A. Field, Seamen Forgotten by Congress: The General Maritime Doctrine of Seaworthiness as a Means of Bridging the Statutory Gap, 73 Tul. L. Rev. 2095 (1999) (analyzing the doctrine of seaworthiness). An in depth discussion of pilots' remedies under the General Maritime Law is beyond the scope of this commentary, however, it is noteworthy to mention Blancq v. Hapag-Uoyd A. G., 986 F. Supp. 376, 1998 A.M.C. 1440 (E.D. La. 1997). In Blancq, the district court found that the warranty of seaworthiness extended to pilots as independent contractors who do traditional seamen's work and incur seamen's hazards. Cf. Sea Shipping Co., v. Sieracki, 328 U.S. 85, 1946 A.M.C. 698 (1946); Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 413 (1953) (extending the remedies under the doctrine of seaworthiness to those aboard a vessel doing the work of a seaman and incurring the accompanying risks). Following this line of thinking creates an anomalous remedy for pilots against the owner of a vessel. For purposes of seaworthiness and the General Maritime Law the pilot is considered a seamen in its truest sense. But regarding Jones Act applicability, the pilot is not a 'master or member of a crew' and thus not a seaman. Under the doctrine of seaworthiness, although it seems to accommodate pilots' lack of statutory coverage, a pilot injured on board a vessel, by no fault of his or of the appurtenances of the ship, only has a remedy under a general negligence claim as a passenger. The Sieracki doctrine, which gives default seaman status to those lacking the employment relationship, if doing a seaman's work while subjected to the perils of the sea, however, does supply a remedial avenue under the General Maritime Law for temporary maritime contractors (a favored choice of marine employers over permanent crews) that do not "receive the benefit of the bargain of the 1972 Amendments" of the LHWCA for work-related injuries. Erik M. Latimer, Comment, The Offshore Oil and Gas Industry: A Jurisdictional Analysis of the Jones Act, Sieracki, and the Longshore and Harbor Workers' Compensation Act, 1 Am. Mar. L.J. 19, 31 (1998) (quoting Green v. Vermillion Corp., 144 F.3d 332, 337, 1998 A.M.C. 2328, 2334 (5th Cir. 1998)).

(60.) The Osceola, 189 U.S. at 173-75.

(61.) See generally The Osceola, 189 U.S. 158, 2000 A.M.C. 1207; 46 U.S.C. app. [section] 688(a).

(62.) Homer Ramsdell, 182 U.S. at 412; Cooley, 53 U.S. at 312; The China, 74 U.S. at 67.

(63.) The China, 74 U.S. at 68.

(64.) Id. at 69.

(65.) Homer Ramsdell, 182 U.S. at 416 (citing Justice Story's 'Treatise on Agency 2d ed. 456(a)").

(66.) Id. at 407-18; Cooley, 53 U.S. at 299; The China, 74 U.S. at 53. Two cases that specifically dealt with the negligent injuries of a pilot were not given much attention by the Supreme Court. Bach v. Trident S.S. Co., 920 F.2d 322, 1991 A.M.C. 928 (5th Cir.) vacated by 500 U.S. 949, remanded to 947 F.2d 1290, 1992 A.M.C. 643 (5th Cir. 1991), 504 U.S. 931 (1992); Evans v. United Arab Shipping Co., 4 F.3d 207, 1993 A.M.C. 2705 (3rd Cir. 1993) 510 U.S. 1116(1994).

(67.) The China, 74 U.S. at 64; Hogge v. S.S. Yorkmar, 434 F. Supp 715, 737 (D. Md. 1977); see generally Gilmore & Black, supra note 2, [section] 7-16 at 520-22.

(68.) Some courts have interpreted the agency analysis as either not pertaining to pilots employed under "compulsion" of law or have held that local pilots were in fact the employees of the shipowner. Bussy v. Donaldson, 4 U.S. (4 Dall.) 206 (1800); Williamson v. Price, 4 Mart. 399 (La. 1826); The Creole, 22 F. Cas. 497 (E.D. Pa. 1853); The Carrolus, 5 F. Cas. 100 (D. Mass. 1854) (No. 2424); Camp v. The Marcellus, 4 F. Cas. 1141 (CCD. Mass. 1858) (No. 2347); Peterson v. United New York Sandy Hook Pilots' Ass'n, 6 F. Supp. 649 (E.D.N.Y. 1934).

(69.) 46 U.S.C. app. [section] 688(a); 33 U.S.C. [section][section] 901-950; Bach, 920 F.2d at 326 (denying Jones Act coverage to a pilot).

(70.) 46 U.S.C. app. [section] 688(a); see Evans, 4 F.3d at 215 n.9 (recognizing that, "[n]either the legislative history of the Jones Act nor that of the LHWCA defines the phrase 'in the course of employment'").

(71.) The idea of employment, regarding a connection to maritime commerce, is paralleled by the Fifth Circuit's thirty percent rule, which requires a seaman to spend at least thirty percent of his time "in the service of a ship in navigation." Chandris, 515 U.S. at 371.

(72.) Evans, 4 F.3d at 218-19; Harwood, 944 F.2d at 1189; Stoller v. Evergreen Int'l Corp., No. C 92-0466 FMS, 1992 WL 457541 (N.D. Cal. Sept. 1,1992).

(73.) Tex. Transp. Code Ann. [section] 62.065 (Vernon 1999); Jackson, 583 F.2d at 1338-42 (specifically stating, "[w]hile vessels subject to the pilotage laws usually are not compelled to employ a state-licensed local pilot, they are required to pay some form of pilotage fees to the first state-licensed pilot who tenders his services to them whether they avail themselves of those services or not"). Id. at 1339.

(74.) Tex. Transp. Code Ann. [section] 62.065.

(75.) Id.

(76.) Sandy Hook, 6 F. Supp. at 650.

(77.) Wash. Rev. Code [section] 88.16.118 (West 1996).

(78.) Wash. Rev. Code [section] 88.16.130 (West 1996) (referencing Wash. Rev. Code [section] 88.16.150 (West 1996)).

(79.) Alaska Stat. [section] 08.62.163 (Michie 1991).

(80.) See Bertrand, 700 F.2d at 245 (declining to relieve vessel owners from contemplation under the Jones Act because of their arrangements with third parties or the manner in which they assign work to seamen in their employ).

(81.) The Oregon, 158 U.S. 186,195 (1895).

(82.) Robins Dry Dock & Repair Co. v. Navigazione Libera Triestina, 32 F.2d 209, 210, 1929 A.M.C. 897, 899 (2d Cir. 1929).

(83.) Dampskibsselskabet, 31 F.2d at 962.

(84.) The Oregon, 158 U.S. at 195.

(85.) Id. at 194. When a pilot is on board, the master still has a duty to ensure the safety of the ship, the proper stowage of cargo, maintain the proper trim and to free the ship from any entanglements. Ralli v. Troop, 157 U.S. 386,402 (1894).

(86.) In re Lloyd's Leasing Ltd., 764 F. Supp. 1114, 1123, 1990 A.M.C. 2113, 2122 (S.D. Tex. 1990) (referencing the vessels owners' operations manual for this proposition).

(87.) "He [the pilot] knows this area better than me, but I still have the responsibility for this ship. Not him. He just gives advice." Keith Darce' & Jeffery Meitrodt, River Barons: Masters of the River, Times-Picayune, New Orleans, Nov. 4, 2001, at J5 (quoting Capt. Nick Yermishkin, a Russian vessel master, about the respective duties of the ship's captain and the boarding pilot).

(88.) The China, 74 U.S. at 59; Jackson, 583 F.2d at 1339.

(89.) 920 F.2d at 327-33.

(90.) See generally Wilander, 498 U.S. 337.

(91.) 767 F. Supp. 1284, 1991 A.M.C. 2409 (D.N.J. 1991).

(92.) Evans, 767 F. Supp. at 1286.

(93.) Id. at 1287.

(94.) Id. at 1288, 1293. Courts had viewed the causation standard applicable to the Jones Act as allowing a seaman, "to survive summary judgment by presenting even the slightest proof of causation." Ribitzki v. Canmar Reading & Bates, Ltd., Ill F.3d 658, 664, 1997 A.M.C. 1841, 1847 (9th Cir. 1996); see also Davis v. Odeco, Inc., 18 F.3d 1237, 1241-43 (5th Cir. 1994). Today, however, the slight duty of care owed by employees and the higher duty of care owed by employers has been overruled, and replaced with the ordinary negligence standard. Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 334-39 (5th Cir. 1997).

(95.) Evans, 767 F. Supp. at 1289 (citing Wilander, 498 U.S. at 342^14).

(96.) Id. at 1289.

(97.) Id.

(98.) Id.

(99.) Evans, 4 F.3d at 219.

(100.) Id. at 217.

(101.) Evans, 4 F.3d at 219.

(102.) See generally Evans, 4 F.3d 207; Bach, 920 F.2d 322.

(103.) 15 F.3d 489, 1994 A.M.C. 1555 (5th Cir. 1994).

(104.) Evans, 15 F.3d at 492-93, 495.

(105.) Id. at 491.

(106.) The pilot in this case was a member of the Associated Federal Coast Pilot as distinguished from a state pilotage association. Both are considered "compulsory" pilots, but the federal pilot navigates along the coast and is regulated by federal rather than state laws. See generally Ashe, supra note 4.

(107.) Avondale, 15 F.3d at 491-92.

(108.) Id.

(109.) Id. at 491.

(110.) Avondale, 15 F.3d at 493.

(111.) Id.; but see Kim Crest, S.A. v. M.V Sverdlovsk, 753 F. Supp. 642, 646, 1991 A.M.C. 1364, 1370 (S.D. Tex. 1990) (indicating that the master in that situation should not be faulted for not relieving the pilot from his duties even though the master was not visually available to monitor the ship's progress until the danger was eminently manifest that the pilot was steering the ship into danger).

(112.) Avondale, 15 F.3d at 494-95.

(113.) Id. at 495.

(114.) See supra note 65-66.

(115.) See generally 15 F.3d 489.

(116.) 46 U.S.C. [section] 10101 (1994) (defining "seaman" as an "individual (except scientific personnel, a sailing school instructor, or a sailing school student) engaged or employed in any capacity on board a vessel" for purposes of part G (Merchant Seamen Protection and Relief) of title 46, subtitle II, (Vessels and Seamen). Id. ; Bach, 920 F.2d at 332.

(117.) Guy C. Stevenson, A Pilot is a Pilot: Compulsory Pilots--Vessel Owner's Responsibilities for Intervention and Personal Injury, 70 tul. L. Rev. 633 (1995).

(118.) Charles M. Davis, Maritime Law Deskbook 109 (1997); Kermarec, 358 U.S. 625 (1959) (stating "the owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case"). Id. at 632.

(119.) See Bertrand, 700 F.2d at 244 nn.8-9; McKie v. Diamond Marine Co., 204 F.2d 132,

136 (5th Cir. 1953); Wilander, 498 U.S. at 339-350; S. Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 260 (1940); Johnson v. John F. Beasley Constr. Co., 742 F.2d 1054, 1063, 1985 A.M.C. 369, 382 (7th Cir. 1984).

(120.) 293 U.S. 155 (1934) (giving the master of a tugboat seaman status as contemplated in the Jones Act).

(121.) Warner, 293 U.S. at 157; Wilander, 498 U.S. at 349.

(122.) Warner, 293 U.S. at 157 n. 1.

(123.) See, Mahramas v. Am. Exp. Isbrandtsen Lines, Inc., 475 F.2d 165, 170 (2d Cir. 1973) (giving seaman's status to a hairdresser).

(124.) 46 U.S.C. app. [section] 688(a); Warner, 293 U.S. at 162 n.2; The Warner Court defined "seaman" as "a mariner of any degree, who lives his life upon the sea. It is enough that what he does affects 'the operation and welfare of the ship when she is upon a voyage.'" Id. at 157 (quoting The Buena Ventura, 243 F. 797, 799 (S.D.N.Y. 1916)).

(125.) Wilander, 498 U.S. at 341 -48.

(126.) Id. at 340.

(127.) Id. at 343-46.

(128.) Wilander, 498 U.S. at 357.

(129.) Id. at 354. The Court further stated that, "[a]ll who work at sea in the service of a ship face those particular perils to which the protection of maritime law, statutory as well as decisional, is directed." Id. (citing David W. Robertson, A New Approach to Determining Seaman Status, 64 Tex. L. Rev. 79 (1985)).

(130.) Id. at 357; Chandris, 515 U.S. at 368-70, 372. But see Papai, 520 U.S. at 560 (holding that "an employee is not necessarily protected by the Jones Act even if he was injured aboard a vessel in navigation and his work over the preceding two years was primarily seaman's work"). Id. at 561 (Stevens, Ginsburg, & Breyer, JJ., dissenting). The Papai Court, although implicating an uncompromising rule, notes that the fleet doctrine is "important in distinguishing between sea- and land-based employment, for land-based employment is inconsistent with Jones Act coverage." Id. at 560. This holding seems to leave open the status question as to mariners performing the work of traditional seamen, given that Papai was not found to fit this description.

(131.) Wilander, 498 U.S. at 354; Chandris, 515 U.S. at 368; Papai, 520 U.S. at 560.

(132.) Robertson, supra note 129, at 83-84.
   Legal doctrine always seeks to reflect and implement some
   governmental policy. It achieves its purposes when it is an
   accurate reflection of that policy and when it provides a readier
   basis for decision (or for explanation of decision) than the policy
   standing alone. But unless the underlying policy is kept firmly in
   mind and the developing doctrine continually checked against it,
   doctrine tends to proliferate and take on a life of its own.


(133.) Although, in Longmire v. Sea Drilling Corp., the court recognized "[w]hat is to be

avoided is engrafting upon the statutory classification of a 'seaman' a judicial gloss so protean, elusive, or arbitrary as to permit a worker to walk into and out of coverage in the course of his regular duties." 610 F.2d 1342, 1347 n.6, 1980 A.M.C. 2625, 2631 (5th Cir. 1980). This sentiment focuses on a status inquiry involving a worker who is engaged in the ship's work at the time of his injury, but viewing the scope of his employment, amounted to a change from his regular duties. Such an activity-based analysis was specifically regarded as inappropriate to the principles of the Jones Act by the Supreme Court. Chandris, 515 U.S. at 358. However, the Papai Court, in seeking to clarify the connection prong of Chandris, stated that, "Jones Act coverage is confined to seamen, those who face regular exposure to the perils of the sea.... The substantial connection test is important in distinguishing between sea- and land-based employment, for land-based employment is inconsistent with Jones Act coverage." Papai, 520 U.S. at 560.

(134.) 700 F.2d 240, 1984 A.M.C. 1740 (5th Cir. 1983).

(135.) Id. at 245.

(136.) Id.

(137.) Id. at 246-47.

(138.) Id. at 246 (citing Longmire, 610 F.2d at 1347).

(139.) Bertrand, 700 F.2d at 245 (citing Robison, 266 F.2d at 780).

(140.) Bertrand, 700 F.2d at 245.

(141.) 781 F.2d 1067, 1076 n.13, 1986 A.M.C. 2455, 2469 (5th Cir. 1986) (holding that an offshore oil field worker was not a seaman because a substantial portion of his work was not performed aboard a vessel or fleet of vessels); Bach, 920 F.2d at 324.

(142.) Bach, 920 F.2d at 323.

(143.) Id. at 323-24.

(144.) Id. at 324 (arguing that because each vessel was under Bach's control, "the aggregation of the vessels he worked aboard constituted a fleet").

(145.) Id. at 325-26 (quoting Barrett, 781 F.2d at 1074). The connection prong of the status test in Chandris is concurrent with the fleet doctrine of the Fifth Circuit (wherein, '"more or less permanent assignment' or 'connection to a vessel (or group of vessels acting together or under one control) that is substantial in terms of its duration and nature'--are simply different ways of getting at the same basic point: The Jones Act remedy is reserved for sea-based maritime employees whose work regularly exposes them to 'the special hazards and disadvantages to which they who go down to the sea in ships are subjected'"). Chandris, 515 U.S. at 369-70 (quoting Sieracki, 328 U.S. at 104 (Stone, C.J., dissenting)).

(146.) Bach, 920 F.2d at 325.

(147.) Id. at 327-28. "Disregarding nearly a thousand years of maritime lore, enactments and codes of worldwide maritime nations, congressional enactments and Supreme Court decisions,

the Court holds that a state compulsory pilot--the preeminent, indispensable member of the ship's company in controlling and directing the immediate navigation of a vessel--is not a statutory Jones Act seamen." Id. (Brown, J., dissenting).

(148.) Bach, 920 F.2d at 327-328.

(149.) Id. at 328-29; see also Benedict on Admiralty, supra note 45, at 1 -21 n. 1.

(150.) Bach, 920 F.2d at 333.

(151.) 865 F. Supp. 363 (E.D. La. 1994).

(152.) Id. at 363-64.

(153.) See supra note 141 and accompanying text.

(154.) 727 F.2d 427 (5th Cir. 1984). See discussion infra notes 157-61.

(155.) 29 F.3d 194, 199 n.4 (5th Cir. 1994).

(156.) Hall, 865 F. Supp. at 365.

(157.) Chandris, 515 U.S. at 370; Wallace, 727 F.2d at 433.

(158.) Wallace, 727 F.2d at 433; but see Ashley v. Epic Divers, Inc., 976 F.2d 730 (5th Cir. 1992), affg 818 F. Supp. 172, 1994 A.M.C. 107 (E.D. La. 1991) (holding that a commercial diver does not qualify as a Jones Act seaman because of his lack of connection to a fleet of vessels).

(159.) Bertrand, 700 F.2d at 245; Wallace, 727 F.2d at 435.

(160.) Wallace, 727 F.2d at 435; Bertrand, 700 F.2d at 247; Longmire, 610 F.2d at 1347, n.6; Barrios v. Engine & Gas Compressor Servs., Inc., 669 F.2d 350, 353 (5th Cir. 1982).

(161.) Warner, 293 U.S. at 162 (citations omitted).

(162.) 731 So.2d 200, 1999 A.M.C. 1189 (La. 1999).

(163.) Id. at 202.

(164.) Id. The connectivity prong associated with seaman status was strained at the very least.

(165.) Id. at 205; Robison, 266 F.2d at 779; Chandris, 515 U.S. at 370-71; Papai, 520 U.S. at 560.

(166.) Papai, 520 U.S. at 551 (denying seaman status to a deckhand hired from union hall for

one day to paint the housing structure on the tug Pt. Barrow); Chandris, 515 U.S. at 370 (considering the case of an engineer responsible for maintaining the electronic and communications equipment).

(167.) Robison, 266 F.2d at 779; Wisner, 731 So.2d at 203 (citing Porche v. Gulf Miss. Marine Corp., 390 F. Supp. 624, 631 (E.D. La. 1975); Bertrand, 700 F.2d at 247; Buras v. Commercial Testing & Eng'g. Co., 736 F.2d 307, 310 1985 A.M.C. 1177, 1181 (5th Cir.1984)).

(168.) Bach, 920 F.2d at 325; Robison, 266 F.2d at 779.

(169.) Wisner, 731 So.2d at 204.

(170.) Id. at 203.

(171.) Id. at 205.

(172.) Id. at 204; Wallace, 727 F.2d at 436.

(173.) Bach, 920 F.2d at 324; Barrett, 781 F.2d at 1075 n.13.

(174.) 266 F.3d 368, 2002 A.M.C. 83 (5th Cir. 2001).

(175.) Id. at 377-78; Wisner, 731 So.2d at 200; Bertrand, 700 F.2d at 245.

(176.) Roberts, 266 F.3d at 377-78; Wisner, 731 So.2d at 205; 734 So.2d 933 (La. App. 1st Cir. 1999).

(177.) Roberts, 266 F.3d at 378 (citation omitted); Little, 734 So.2d at 938.

(178.) It should be noted that both cases were decided by three judge panels of the United States Court of Appeals for the Fifth Circuit and in such a case prior precedent controls. See United States v. Texas Tech Univ., 171 F.3d 279, 286 n.9 (5th Cir.1999) (stating that "[w]here two panel decisions conflict, the prior decision constitutes the binding precedent").

(179.) Chandris, 515 U.S. at 356 (citing Johnson v. John Beasley Constr. Co., 742 F.2d 1054, 1060, 1985 A.M.C. 369, 377 (7th Cir. 1984)).

(180.) Wisner, 731 So.2d at 203 (citing Bertrand, 700 F.2d at 246). "While the fact that a claimant's work places him on several different vessels does not preclude seaman status, it is relevant in making that determination." Id.

(181.) Chandris, 515 U.S. at 370 (quoting Sieracki, 328 U.S. at 104). Among the dangers which the pilots must endure on a daily basis are such river hazards as: river turbulence, ship traffic, population centers on the banks of rivers, bridges, locks, bottlenecks, flocculation (a black muck called 'sea jelly' that can temporarily trap vessels), shoaling and silt bars and unnatural underwater obstacles as well as such on board hazards as: exotic disease, hostile crews, language barriers, poorly maintained and boarding from the pilot boat to the vessel to be piloted in sometimes rough seas and without knowledge of how secure the ladder is for the thirty foot climb to the deck of the vessel. Keith Darce' & Jeffrey Meitrodt, River Barons: Dangers of the River, The Times-Picayune, New Orleans, Nov. 4, 2001, at J3.

(182.) Bach, 920 F.2d at 325.

(183.) Wilander, 498 U.S. 337 passim.

(184.) See supra notes 30-31 and accompanying text.
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