United States Court of Appeals 

for the Fifth Circuit 

No. 19-20506 

Gilbert Sanchez, 

Plaintiff—Appellant, 

versus

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

Defendant—Appellee. 

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 4:19-CV-00110 

Before Owen, Chief Judge, Davis, Jones, Smith, Stewart, 

Dennis, Elrod, Southwick, Haynes, Graves, Higginson, 

Costa, Willett, Ho, Duncan, Engelhardt, Oldham, and 

Wilson, Circuit Judges.

W. Eugene Davis, Circuit Judge.

We took this case en banc to attempt to define for this Circuit a more 

definitive test, consistent with Supreme Court caselaw, to distinguish 

seamen entitled to benefits under the Jones Act from other maritime workers 

generally covered under the Longshore and Harbor Worker’s Compensation 

Act. 

United States Court of Appeals 

Fifth Circuit 

FILED 

May 11, 2021 

Lyle W. Cayce 

Clerk 
No. 19-20506 

2 

We conclude that the plaintiff in this case, Gilbert Sanchez, a landbased welder directed by his employer to work on two discrete short-term 

transient repair jobs on two vessels, was not a seaman. Because Sanchez was 

not engaged in sea-based work that satisfied the requirement that he be 

substantially connected to a fleet of vessels in terms of the nature of his work, 

we AFFIRM the judgment of the district court. 

I. FACTUAL BACKGROUND 

The material facts in this case are not in dispute. The plaintiff, Gilbert 

Sanchez,1

 was employed as a land-based welder by Smart Fabricators of 

Texas, LLC (“SmartFab”), a contract welding firm engaged in steel 

fabrication, repairs to drilling equipment, and general contract welding work. 

SmartFab’s work is performed to meet the demands of its customers on land 

and sometimes on jack-up drilling barges. The issues in this case revolve 

around Sanchez’s work for SmartFab on two jack-up barges owned by 

SmartFab’s customer, Enterprise Offshore Drilling LLC (“Enterprise”). 

Sanchez worked for SmartFab for a total of 67 days between 

August 2017 and August 2018. Six of those days were spent working on 

welding jobs either on land or vessels that are irrelevant to his status as a 

seaman because they were not owned or controlled by Enterprise. Sanchez 

spent the remaining 61 days—those pertinent to our inquiry—on two 

different jack-up drilling rigs owned by Enterprise: the Enterprise WFD 350 

and the Enterprise 263. 

A. Enterprise WFD 350 

Sanchez worked on the Enterprise jack-up barge WFD 350 for 48 days 

doing welding work on a discrete repair job. The entire time he worked on 

this vessel, it was jacked-up so that the deck of the barge was level with 

1

 Payroll records indicate that Sanchez worked for SmartFab using the name Jorge Cruz. 
No. 19-20506 

3 

Gabby’s Dock in Sabine Pass, Texas, and separated from the dock by a 

gangplank. Sanchez could take two steps on the gangplank, and he was 

ashore. He commuted from his home to the vessel daily. His time on the 

WFD 350 comprised approximately 72 percent of his total work time with 

SmartFab. 

B. Enterprise 263 

Sanchez worked 13 days on one other Enterprise vessel, the Enterprise 

jack-up barge 263. His work on this vessel comprised approximately 19 

percent of his time in SmartFab’s employment. When Sanchez was 

dispatched to the Enterprise 263 in July 2018, it was located in West 

Cameron Block 38 on the Outer Continental Shelf (“OCS”). He was sent as 

part of a SmartFab crew that was contracted to perform repairs necessary to 

get the vessel in condition to satisfy requirements of the American Bureau of 

Shipping (“ABS”), the Bureau of Safety and Environmental Enforcement 

(“BSEE”), and the Coast Guard, so that the rig could begin drilling 

operations at a new drilling site on the OCS. Sanchez was aboard the rig when 

it was moved by tugboats to the new drilling location, South Timbalier Block 

125 on the OCS. 

Sanchez performed welding and related work on the deck of the 

Enterprise 263. On August 8, 2018, he fell and sustained the injury that is the 

subject of this suit. Because Sanchez was sent ashore on August 9, 2018, 

following his injury, he was unable to complete his assignment and remain 

with the SmartFab crew until the repairs were completed on August 10, 2018. 

The rig began drilling on August 11, 2018.2

 Sanchez left the employ of 

2

 Counsel for Sanchez confirmed during oral argument that the SmartFab work was 

completed on August 10 and drilling began on August 11, 2018 (Oral Argument Recording 

at 15:33-15:39), which is consistent with the affidavit of Glen Whitman, Rig Manager of the 

Enterprise 263. 
No. 19-20506 

4 

SmartFab after his injury and, as far as the record shows, did no more work 

on Enterprise vessels. 

II. PROCEDURAL HISTORY

After his accident, Sanchez sued SmartFab in state court under the 

Jones Act. SmartFab promptly removed the case, but Sanchez moved to 

remand, arguing that the Jones Act precluded removal. The district court 

denied Sanchez’s motion to remand and granted SmartFab’s motion for 

summary judgment, both for the same reason: Sanchez did not qualify as a 

Jones Act seaman.3

A. District Court Rulings 

The district court concluded that Sanchez failed to establish a 

substantial connection in terms of the nature of his work to the Enterprise 

fleet of jack-up barges he worked aboard.4

 The district court held that 

Sanchez spent more than 30 percent of his work time with SmartFab working 

on the Enterprise WFD 350 and 263, and that his repair work on those barges 

contributed to the function of these vessels.5

 Because he contributed to the 

function of the vessels, he satisfied prong one of the seaman-status test.6

 The 

court also held that because Sanchez spent more than 30 percent of his work 

time with SmartFab working on those two barges, he met the substantial 

connection requirement as to duration.7

 However, the district court 

concluded that because less than 30 percent of his work on the two vessels 

3 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). 

4 Sanchez, 376 F. Supp. 3d at 732. 

5 Id.

6 Id.

7 Id.
No. 19-20506 

5 

was performed away from the dock, he did not satisfy the nature element of 

the substantiality requirement and therefore Sanchez was not a seaman.8 For 

this reason, the district court denied Sanchez’s motion to remand the case to 

state court.9

 For the same reason, the district court granted SmartFab’s 

motion for summary judgment.10 Sanchez timely appealed both rulings. 

B. Panel Opinion and En Banc Review 

On appeal, the panel originally held that based upon binding Circuit 

precedent, Sanchez satisfied the requirements for seaman status. We based 

this on two of our earlier cases: In re Endeavor Marine, Inc.,

11 and Naquin v. 

Elevating Boats, L.L.C.12 One member of the panel filed a concurring opinion, 

joined by the other members of the panel, questioning whether our precedent 

was in line with Supreme Court caselaw and proposing that we take the case 

8 Id.

9 Id. at 733. 

10 Sanchez, 2019 WL 2515307, at *3–4. 

11 234 F.3d 287 (5th Cir. 2000) (per curiam). 

12 744 F.3d 927 (5th Cir. 2014). Most of the scholarship discussing our two earlier cases is 

critical of our holdings. See Kenneth G. Engerrand, Escape from the Labyrinth: Call for the 

Admiralty Judges of the Supreme Court to Reconsider Seaman Status, 40 HOUS.J. INT. L. 741, 

763–74, 795 (2018); Timothy M. O’Hara, Comment, Naquin v. Elevating Boats, LLC: The 

Fifth Circuit’s Improper Expansion of Jones Act “Seaman Status” Qualification, 36 PACE L.

REV. 263, 286 (2015); Matthew H. Frederick, Note, Adrift in the Harbor: AmbiguousAmphibious Controversies and Seamen’s Access to Workers’ Compensation Benefits, 81 TEX. L.

REV. 1671, 1705 (2003); L. Taylor Coley, Note, The “Perils of the Sea”- Man Status 

Question: The Fifth Circuit Falls Behind FELA’s Advancements in Remedies in Favor of the 

Continued Confusion Surrounding the Seaman Definition, 39 TUL. MAR. L. J. 371, 380–81

(2014).But see John R. Hillsman, Still Lost in the Labyrinth: The Continuing Puzzle of Seaman 

Status, 15 U.S.F. MAR. L. J. 49, 73–75 (2003). For a general discussion of these cases, see 1 

Robert Force & Martin J. Norris, The Law of Seamen § 2:8 Westlaw (database updated Nov. 

2020). 
No. 19-20506 

6 

en banc to consider this question.13 The case was voted en banc, and, for the 

reasons set forth below, the en banc court agrees that Supreme Court 

precedent requires us to affirm the judgment of the district court. 

III. APPLICABLE LAW 

We review both the denial of a motion to remand and the grant of 

summary judgment de novo.14

A. Jones Act and LHWCA 

The Jones Act grants “a seaman” a cause of action against his 

employer in negligence.15 Only seamen may sue under the Jones Act and 

Jones Act claims are “not subject to removal to federal court.”16 Sanchez 

argues that because he was a seaman who brought his negligence action under 

the Jones Act in state court, the district court erred both in denying his 

motion to remand and in granting summary judgment for SmartFab. So, the 

only issue for us to decide to resolve this appeal is whether Sanchez is a 

seaman (or entitled to have a jury resolve the issue) entitled to the benefits of 

the Jones Act. 

13 Sanchez v. Smart Fabricators of Texas, L.L.C., 970 F.3d 550, 555–56 (5th Cir.), reh’g en 

banc granted, opinion vacated, 978 F.3d 976 (5th Cir. 2020). 

14 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). 

15 “A seaman injured in the course of employment or, if the seaman dies from the injury, 

the personal representative of the seaman may elect to bring a civil action at law, with the 

right of trial by jury, against the employer. Laws of the United States regulating recovery 

for personal injury to, or death of, a railway employee apply to an action under this section.” 

46 U.S.C. § 30104. 

16 Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 455 (2001) (noting that 28 U.S.C. 

§ 1445(a), which bars removal of certain suits involving railroads, is incorporated into the 

Jones Act). 
No. 19-20506 

7 

In addition to the Jones Act, another important statute is relevant to 

our inquiry. Congress enacted the Longshore and Harbor Worker’s 

Compensation Act (LHWCA) in 1927 to establish a federal compensation 

remedy for injuries to certain land-based workers occurring on navigable 

waters.17 Generally, coverage under this compensation act excluded from its 

coverage “a master or member of a crew of any vessel.”18 The LHWCA, 

therefore, limits the definition of “seaman” in the Jones Act so as “to confine 

the benefits of the Jones Act to the members of the crew of a vessel plying in 

navigable waters and to substitute for the right of recovery . . . only such rights 

to compensation as are given by the LHWCA.”19 Thus, the seaman’s remedy 

is limited to rights granted by the Jones Act, and rights granted to other 

maritime workers are provided exclusively by the LHWCA. The two 

remedies are mutually exclusive.20 

Because Congress has not defined the term “seaman,” the definition 

of and distinction between the two groups have been the subject of extensive 

litigation, and courts have struggled to establish workable tests to define the 

word “seaman.” 

17 33 U.S.C. § 903(a). 

18 33 U.S.C. § 902(3)(G). 

19 McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 347 (1991) (quoting Swanson v. Mora 

Brothers, Inc., 328 U.S. 1, 7 (1946)). 

20 See id.
No. 19-20506 

8 

B. Supreme Court Trilogy

In the 1990s, the Supreme Court decided three cases that were 

enormously helpful in giving meaning to the term “seaman.” 

 1. Wilander 

First was McDermott International, Inc. v. Wilander.

21 The Court took 

this case primarily to resolve a split among the circuits on the question of 

whether a plaintiff, to establish seaman status, was required to show that he 

aided in the navigation of a vessel.22 The Court rejected the circuit cases 

imposing this requirement and adopted the test set forth in Judge Wisdom’s 

landmark decision in Offshore Co. v. Robison, requiring proof that the seaman 

“contributed to the function of the vessel or to the accomplishment of its 

mission” and have an employment-related connection to a vessel.23 The 

Wilander Court emphasized, “The key to seaman status is employmentrelated connection to a vessel in navigation.”24

In order to give effect to the land-based/sea-based distinction, the 

Court “believe[d] the better rule is to define ‘master or member of a crew’ 

under the LHWCA, and therefore ‘seaman’ under the Jones Act, solely in 

terms of the employee’s connection to a vessel in navigation.”25 The Court 

was persuaded that the connection requirement was consistent with 

“Congress’ land-based/sea-based distinction,” explaining: “All who work 

21 498 U.S. 337 (1991). 

22 Id. at 340. 

23 266 F.2d 769, 779 (5th Cir. 1959). 

24 Wilander, 498 U.S. at 355. 

25 Id. at 354. 
No. 19-20506 

9 

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.”26

2. Chandris 

The Supreme Court’s next decision on seaman status came four years 

later in Chandris, Inc. v. Latsis.

27 In this case, the plaintiff, Latsis, was a 

supervising engineer who oversaw an engineering department for a fleet of 

six passenger cruise ships.28 Latsis developed a detached retina while sailing 

on one of the vessels and sued because of an alleged delay by the employer in 

providing medical care.29 Latsis’s duties required him to divide his work 

between the office and aboard ship when he sometimes sailed for inspection 

and supervision of engineering work.30 The Court was therefore asked to 

define the “relationship a worker must have to the vessel, regardless of the 

specific tasks the worker undertakes in order to obtain seaman status.”31

After discussing the judicial and legislative history of the passage of the 

LHWCA, the Chandris Court stated: “With the passage of the LHWCA, 

Congress established a clear distinction between land-based and sea-based 

maritime workers. The latter who owe their allegiance to a vessel and not 

solely to a land-based employer, are seamen.”32 The Court also pointed out 

that Congress, by enacting the LHWCA, had twice overturned the Supreme 

Court’s extension of seamen’s remedies to other maritime workers doing 

26 Id. 

27 515 U.S. 347 (1995). 

28 Id. at 350. 

29 Id. at 350–51. 

30 Id. at 350. 

31 Id.

32 Id. at 359. 
No. 19-20506 

10 

seamen’s work and incurring seamen’s hazards.33 Justice O’Connor summed 

up the effect of these two congressional acts: “Whether under the Jones Act 

or general maritime law, seamen do not include land-based workers.”34

In explaining the importance of the requirement that a seaman have a 

substantial, enduring relationship to a vessel, the Court rejected a snapshot 

test for seaman status, denouncing a test that inspected “only the situation 

as it exists at the instance of injury” and noting that “a more enduring 

relationship is contemplated in the jurisprudence.”35 The Court emphasized 

that “a worker may not oscillate back and forth between Jones Act coverage 

and other remedies depending on the activity in which the worker was 

engaged while injured.”36 The Court also recognized that “[s]eaman status 

is not co-extensive with seamen’s risk.”37 “Some workers who unmistakably 

confront the perils of the sea, often in extreme form, are thereby left out of 

the seamen’s protections.”38 

The Court then turned to apply these principles to the sufficiency of 

plaintiff’s relationship to his employer’s fleet of vessels to qualify for seaman 

status. It defined the substantial-connection test with two elements: “a 

seaman must have a connection to a vessel in navigation (or to an identifiable 

group of such vessels) that is substantial in terms of both its duration and its 

33 Id.

34 Id. at 358. 

35 Id. at 363. 

36 Id. 

37 Id. at 361. 

38 Id. at 362. For example, Mississippi River pilots who do nothing but pilot ocean-going 

vessels through dangerous sections of the river are not seaman because the ships have no 

common ownership or control. See Bach v. Trident S.S. Co., Inc., 947 F.3d 1290 (5th Cir. 

1991). 
No. 19-20506 

11 

nature.”39 In discussing the duration element, the Court stated that “the 

total circumstances of an individual’s employment must be weighed.”40 The 

Chandris Court approved our rule of thumb as a guide to the degree of 

permanence required to satisfy the duration element. “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.”41

Because the record was unclear regarding how much of plaintiff’s time 

was spent working on the employer’s vessels as opposed to his land-based 

work, the Court remanded the case for application of the stated principles to 

the facts.42 

3. Papai 

The Supreme Court provided more guidance on the nature element 

of the substantiality requirement in Harbor Tug and Barge Co. v. Papai – the 

third case in this trilogy.43 This case is closely analogous to the facts of the 

present case. In Papai, the shipowner, Harbor Tug, was one of several 

tugboat operators operating in San Francisco Bay that obtained workers 

through a union hiring hall.44 Papai was engaged through the union hall to 

paint the housing of a Harbor Tug, the Pt. Barrow.45 The entire time Papai 

worked on the Pt. Barrow, it was located dockside.46 

39 Chandris, 515 U.S. at 368. 

40 Id. at 370 (quoting Wallace v. Oceaneering Int’l, 727 F.2d 427, 432 (5th Cir. 1984)). 

41 Id. at 371. 

42 Id. at 374–75. 

43 520 U.S. 548 (1997). 

44 Id. at 551. 

45 Id.

46 Id. at 559. 
No. 19-20506 

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The Court stated that “[f]or 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.”47 It further explained that “[t]his will give substance to the inquiry both 

as to duration and nature of the employee’s connection to the vessel and be 

helpful in distinguishing land-based from sea-based employees.”48 The 

Court then considered Papai’s actual duties and whether they satisfied the 

nature element. It determined, “[h]is actual duty on the Pt. Barrow 

throughout the employment 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.”49

Papai contended that the entire group of vessels he worked on through 

the union hiring hall constituted an identifiable group of vessels and his 

connection to this “fleet” should be considered.50 The Supreme Court 

rejected such a broad definition of “fleet.” The Court stated: “In deciding 

whether there is an identifiable group of vessels of relevance for a Jones Act 

seaman-status determination, the question is whether the vessels are subject 

to common ownership or control.”51

Papai then also argued that he qualified as a seaman if his jobs over the 

past two and a half months working on Harbor Tug’s vessels were 

considered.52 The Court answered, 

47 Id. at 555. 

48 Id.

49Id. at 559. 

50 Id. at 555. 

51 Id. at 557. 

52 Id. at 559. 
No. 19-20506 

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Papai testified at his deposition that he worked aboard the Pt. 

Barrow on three or four occasions before the day he was 

injured, the most recent of which was more than a week earlier. 

Each of these engagements involved only maintenance work 

while the tug was docked. The nature of Papai’s connection to 

the Pt. Barrow was no more substantial for seaman-status 

purposes by virtue of these engagements than the one during 

which he was injured . . . . In any event these discrete 

engagements were separate from the one in question, which 

was the sort of “transitory or sporadic” connection to a vessel 

or a group of vessels that, as we had explained in Chandris, does 

not qualify one for seaman status.53

53 Id. at 559–60. The Second Circuit applied the previous Supreme Court cases to 

determine whether a maritime worker had a substantial connection in terms of duration 

and nature to satisfy the test for seaman’s status in Matter of Buchanan Marine, L.P., 874 

F.3d 356 (2d Cir. 2017). In that case, the plaintiff, Volk, worked at a quarried rock 

processing facility on the Hudson River, inspecting and maintaining barges used to 

transport rock down the river. Id. at 360. Volk was injured when he slipped from the narrow 

deck of one of the barges and sustained injuries. Id. The Second Circuit concluded that as 

a matter of law, Volk did not qualify as a seaman under the Jones Act. Id. at 368. The court 

held that Volk “did not derive his livelihood from sea-based activities” and “Volk never 

operated a barge and only worked aboard the barges when they were secured to the dock.” 

Id. at 366 (internal quotation marks and citation omitted). 

The Ninth Circuit applied the same Supreme Court cases in Cabral v. Healy Tibbits 

Builders, Inc., 128 F.3d 1289 (9th Cir. 1997) to determine whether a barge-crane operator 

had a substantial connection in terms of duration and nature in order to be a seaman. The 

plaintiff crane operator was working in a quiet harbor with limited movement of the crane 

barge. Id. at 1293. Notably, the plaintiff was assigned to the barge for a specific project, and 

no evidence was presented that he would continue to work on the barge after the project 

was completed. Id. The Ninth Circuit concluded that the crane operator was not a seaman 

because he was “a land-based crane operator who happened to be assigned to a project 

which required him to work aboard [a crane barge].” Id.

In Delange v. Dutra Const. Co., Inc., 183 F.3d 916, 920 (9th Cir. 1999), the Ninth Circuit 

concluded that a reasonable juror could find that the plaintiff carpenter was a seaman. 

Although the plaintiff’s job as a carpenter was a land-based trade, the facts in the record 
No. 19-20506 

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C. Fifth Circuit Precedent 

As stated above, the panel concluded that based on two of our cases, 

Endeavor Marine and Naquin, it was bound to hold that Sanchez was entitled 

to proceed with his Jones Act suit as a seaman.54 The panel in a unanimous 

concurring opinion, however, concluded that those two cases were probably 

not consistent with the Supreme Court cases discussed above, namely 

Wilander, Chandris and Papai, and urged this Court to take the case en banc 

so that we could reconsider our circuit law on this question.55

In Naquin, the plaintiff, a vessel repair supervisor, was injured in a 

shipyard while working on a fleet of lift boats.56 The lift boats he worked on 

were either moored, jacked-up, or docked in the shipyard canal.57 We 

rejected the argument that this work did not expose the plaintiff to the perils 

of the sea and permitted him to pursue his suit under the Jones Act.58 Because 

all of Naquin’s work was performed on or near the dock, and we erred in 

analyzing Naquin based solely on the “perils of the sea” test, we must 

overrule it. 

In Endeavor Marine, the plaintiff, a crane operator, was assigned to 

work aboard a derrick barge on the Mississippi River that was usually moored 

to the dock, where he loaded and unloaded cargo and helped to maintain the 

indicated that carpentry comprised only ten percent of the plaintiff’s work. Id. The rest of 

the plaintiff’s work “involved crewman and deckhand duties” where he was a lookout, 

cargo stower, line handler, and occasional pilot on a construction barge that moved to 

various construction sites. Id. Thus, facts clearly indicated that the plaintiff was a sea-based 

worker who did not have a “transitory or sporadic” connection to the vessel. 

54 Sanchez, 970 F.3d at 555. 

55 Id. at 555–56. 

56 744 F.3d 927, 931 (5th Cir. 2014). 

57 Id. at 930. 

58 Id. at 935. 
No. 19-20506 

15 

crane.59 Sometimes, the barge was moved from its base wharf to other wharfs 

for loading and unloading ships. On at least one occasion during the 18 

months he worked on the barge, the plaintiff rode the barge from one location 

to another to operate and perform maintenance on the crane.60 On other 

occasions, he drove his automobile to the new location where the barge was 

moved.61 We reversed the district court and held that because the plaintiff 

was exposed to the perils of the sea, he was a seaman.62

Based on the fact that (1) plaintiff was permanently assigned to and 

worked on the same barge during his entire employment, (2) the barge was 

moved on occasion to different wharfs on the Mississippi River and the 

plaintiff moved to whatever new location the vessel was moved to, we cannot 

say the Endeavor Marine panel erred in holding the plaintiff was a seaman. 

However, as we explain below, we do not endorse the panel’s rationale. 

The panels in Endeavor Marine and Naquin asked whether those 

plaintiffs were subject to the “perils of the sea” as the primary test of their 

satisfaction of the nature element.63 While this is one of the considerations in 

the calculus, it is not the sole or even the primary test. 

59 234 F.3d 287, 289 (5th Cir. 2000). 

60 In re Complaint of Endeavor Marine, Inc., No. CIV.A. 98-0779, 1999 WL 76586, at *4 (E.D. 

La. Feb. 11, 1999). 

61 Id. at *1. 

62 Endeavor Marine, 234 F.3d at 292. 

63 Much of the scholarship addressing seaman status emphasizes that “perils of the sea” 

alone is a problematic test for making the land-based and sea-based distinction. See, e.g., 

Matthew H. Frederick, Note, Adrift in the Harbor: Ambiguous-Amphibious Controversies and 

Seamen’s Access to Workers’ Compensation Benefits, 81 TEX. L. REV. 1671, 1704 (2003). 
No. 19-20506 

16 

D. Distilling the Principles from the Supreme Court Trilogy

In Chandris, the Court made clear that seamen and non-seamen 

maritime workers may face similar risks and perils, and that this is not an 

adequate test for distinguishing between the two.64 We therefore conclude 

that the following additional inquiries should be made: 

(1) Does the worker owe his allegiance to the vessel, rather than 

simply to a shoreside employer?65 

(2) Is the work sea-based or involve seagoing activity? 

(3) (a) Is the worker’s assignment to a vessel limited to performance 

of a discrete task after which the worker’s connection to the vessel 

ends, or (b) Does the worker’s assignment include sailing with the 

vessel from port to port or location to location? 

Simply asking whether the worker was subject to the “perils of the 

sea” is not enough to resolve the nature element. Consider the captain and 

crew of a ferry boat or of an inland tug working in a calm river or bay, or the 

drilling crew on a drilling barge working in a quiet canal. No one would 

question whether those workers are seamen. Yet, their risk from the perils of 

the sea is minimal. Considering the more definitive inquiries set forth above 

by the Supreme Court, we now examine whether Sanchez was a seaman 

under the Jones Act during his employment with SmartFab. 

64 See Chandris v. Latsis, 515 U.S. 347, 361–62 (1991). 

65 See id. at 359 (citing McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 347 (1991)) 

(“Congress established a clear distinction between land-based and sea-based maritime 

workers. The latter, who owe their allegiance to a vessel and not solely to a land-based 

employer, are seamen.”).
No. 19-20506 

17 

IV. DISCUSSION 

 As indicated above, Sanchez worked on two vessels during his 67 days 

of employment with SmartFab that are relevant to his seaman status. He 

worked aboard the Enterprise WFD 350 for 48 of his 67 days and 13 days 

aboard the Enterprise 263. His entire time aboard these two vessels was spent 

doing discrete welding jobs as part of repairs to the two vessels. This work 

certainly contributed to the function of these two vessels because that work 

was necessary to keep the vessels in condition to drill for oil and gas. Thus, 

Sanchez satisfied the first prong of the seaman-status test.66 

Sanchez spent approximately 90 percent of his total employment time 

with SmartFab aboard the two Enterprise vessels. He therefore satisfied the 

duration prong of the substantiality test. As the Court stated in Chandris, 

generally if a worker spends at least 30 percent of his time aboard a vessel or 

a fleet of vessels, then he establishes the duration prong. The question 

narrows to determine whether Sanchez spent at least 30 percent of his time 

aboard these two vessels doing work that satisfies the nature prong of that 

test. 

As to the work Sanchez did aboard the WFD 350, the Supreme 

Court’s decision in Papai makes it clear that this work was not “sea-based” 

and therefore did not satisfy the nature test. All of Sanchez’s work on that 

66 While Sanchez was working aboard the Enterprise WFD 350 and Enterprise 263, both 

vessels were “in navigation” as that term has been defined by the Supreme Court. See 

Chandris, 515 U.S. at 374 (noting that a vessel is “in navigation” even though “moored to 

a dock, if it remains in readiness for another voyage” and recognizing general rule that 

“vessels undergoing repairs or spending relatively short period of time in drydock are still 

considered to be ‘in navigation’”) (internal quotation marks and citations omitted); see also 

Stewart v. Dutra Const. Co., 543 U.S. 481, 495 (2005) (noting that “in navigation” 

requirement is “relevant to whether the craft is ‘used, or capable of being used’ for 

maritime transportation”); 1 Robert Force & Martin J. Norris, The Law of Seamen § 2:18 

Westlaw (database updated Nov. 2020); 1B Benedict on Admiralty § 11b (2020). 
No. 19-20506 

18 

vessel was performed while it was jacked-up with the barge deck level with 

the dock and a gangplank away from shore. Just as Papai’s actual duties on 

the Pt. Barrow moored at the dock did not include any “seagoing activity,” 

neither did Sanchez’s work on the WFD 350. The Papai Court explicitly 

stated that “maintenance work while the tug was docked” did not satisfy the 

nature test.67 The Court also found significant the fact that there was no 

reason to assume that any particular percentage of Papai’s work would be of 

a “seagoing nature” subjecting him to the “perils of the sea.”68 The Papai

Court also found significant that Papai’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.”69

It is clear from the above Supreme Court cases, that Sanchez, like 

Papai, who was working on a vessel at the dock, was not engaged in “seagoing 

activity.” His duties on the WFD 350 did not “take him to sea;” his work on 

the docked vessel was not “of a seagoing nature;” and after he finished his 

67 Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 559 (1997). 

68 Id. at 560. 

69 Id. at 559. Sanchez argued that Southwest Marine, Inc. v. Gizoni, 502 U.S. 81 (1991) 

supports his view that as a ship repairman, he should be considered a seaman. We disagree. 

The Court granted review in that case to consider whether a ship repairman is ineligible for 

seaman status because “ship repairmen” is one of the enumerated occupations under the 

term “employee” as defined in the LHWCA. The Court, without considering the merits 

of the plaintiff’s claim to seaman status, stated: “While in some cases a ship repairman may 

lack the requisite connection to a vessel in navigation to qualify for seaman status, not all 

ship repairmen lack the requisite connection as a matter of law. This is so because ‘[i]t is 

not the employee’s particular job that is determinative, but the employee’s connection to 

a vessel.” Gizoni, 502 U.S. at 492 (citations and footnote omitted). Therefore, Sanchez is 

clearly not barred from obtaining coverage under the Jones Act as a seaman simply because 

he was a ship repairer. If he could establish the requisite connection to the Enterprise fleet, 

he would be entitled to that protection. We hold he is not entitled to that protection 

because he failed to establish that required connection. 
No. 19-20506 

19 

work at the dock, “he was not going to sail with the vessel” after he finished 

his work. 

With respect to Sanchez’s work on the Enterprise 263, the record 

reveals that he reported to that vessel located in the Gulf of Mexico on the 

OCS in July 2018, as part of a SmartFab crew engaged to make discrete 

repairs on the vessel for a specific reason: to satisfy requirements of the ABS, 

BSEE, and Coast Guard, so that the rig could begin drilling at a new location 

on the OCS. It is undisputed that Sanchez worked for 13 days on the 

Enterprise 263 and that he was injured when he fell on the deck of the rig on 

August 8, 2018. After his injury, Sanchez was sent ashore for medical 

assistance. 

The remainder of the SmartFab crew worked until August 10 or 11, 

2018, when the repairs SmartFab agreed to perform were completed. The 

vessel began drilling on August 11, 2018, as planned at the new location.70 No 

evidence was presented that Sanchez planned to remain after the SmartFab 

crew completed their job, and there is no suggestion of any reason he would 

plan to do that. 

Sanchez worked on the Enterprise 263 only 13 days, which would 

amount to less than 20 percent of his total time of his employment with 

SmartFab – well short of the 30 percent required for satisfaction of the 

duration prong of the substantiality test. Sanchez’s work on the 

Enterprise 263, even though it was located on the OCS, was work performed 

on a discrete, individual job. When he and the SmartFab crew were finished, 

Sanchez would have no further connection to the vessel. 

70 As previously noted, Counsel for Sanchez confirmed during oral argument that the 

SmartFab work was completed on August 10 and drilling began on August 11, 2018. 
No. 19-20506 

20 

Our case law reveals generally that two types of workers are found on 

drilling rigs. First, we have the drilling crew, who conduct the drilling 

operations (and workers who support that activity) and stay with the vessel 

when it moves from one drilling location to another.71 These workers are the 

members of the crew of the vessel and are seamen. The second group are 

specialized transient workers, usually employed by contractors. These 

workers are engaged to do specific discrete short-term jobs.72 Discrete 

transient jobs are like the work done by longshoremen when a vessel calls in 

port. As stated in Papai, these workers have only a “transitory or sporadic” 

connection to a vessel or group of vessels and do not qualify for seaman 

status.73 Sanchez, as a transitory worker, falls into the second group, and thus 

does not satisfy the nature test. 

71 See Offshore Co. v. Robison, 266 F.2d 769, 771–72 (5th Cir. 1959) (holding that an oilfield 

worker was a member of the crew that remained aboard the rig when it was moved to 

different well locations was a seaman); Rogers v. Gracey-Hellums Corp., 331 F. Supp. 1287, 

1288 (E.D. La. 1970), aff’d, 442 F.2d 1196 (finding that a roughneck permanently attached 

to a barge was a member of the crew); Producers Drilling Co. v. Gray, 361 F.2d 432, 436–37 

(5th Cir. 1966) (finding that a roustabout who maintained a barge and its equipment as well 

as helped drill a well was a seaman). 

72 See, e.g., Lirette v. N.L. Sperry Sun, Inc., 831 F.2d 554, 557 (5th Cir. 1987) (holding that a 

wireline worker was a “transitory maritime worker” and not a seaman). Lirette was a landbased wireline operator who performed “one specialized job for many different vessels.” 

Id. We stated: “His duties closely resembled those of a transitory maritime worker. As we 

stated in Barrett, the distinction between seamen and transitory workers may not be 

blurred.” Id. See also Roberts v. Cardinal Serv., Inc., 266 F.3d 368, 378 (5th Cir. 2001) 

(discussing that a plugging and abandonment worker injured by a perforation gun attached 

to a wireline was not a seaman); Ardleigh v. Schlumberger Ltd., 832 F.2d 933, 934 (5th Cir. 

1987) (“[I]tinerant wireline workers are not Jones Act seamen.”); Wilcox v. Wild Well 

Control, Inc., 794 F.3d 531, 538–39 (5th Cir. 2015) (holding that a welder was not a seaman 

because he was only assigned for one specific project which had a clear two month end 

date). See also 1B Benedict on Admiralty § 11e (2020) (collecting cases in Table 4). 

73 Papai, 520 U.S. at 559–60. 
No. 19-20506 

21 

V. CONCLUSION 

We conclude that Sanchez failed to create a genuine issue of material 

fact that he had a substantial connection to the Enterprise fleet of vessels as 

it related to the nature of his work. We therefore agree with the district court 

that Sanchez failed to meet the requirements for seaman status, and we 

AFFIRM the judgment of the district court.
No. 19-20506 

22 

James L. Dennis, Circuit Judge, concurring: 

 I concur in the majority opinion because it decides the present case 

consistently with the Supreme Court’s decisions in McDermott International, 

Inc. v. Wilander, 498 U.S. 337 (1991), Chandris, Inc. v. Latsis, 515 U.S. 347 

(1995), and Harbor Tug and Barge Co. v. Papai, 520 U.S. 548 (1997). I write 

to note that in future, perhaps more challenging, cases concerning contours 

of the Jones Act’s coverage of maritime workers, I would look, in addition to 

the majority’s authorities and reasoning, to the enduring writings of the late 

Professor David W. Robertson, a leading scholar and practitioner of maritime 

law.1

 As the majority endeavors to do here, in his article, The Supreme Court’s 

Approach to Determining Seaman Status: Discerning the Law Amid Loose 

Language and Catchphrases, Prof. Robertson “provides a template for 

translating the U. S. Supreme Court’s controlling seaman status cases” 

under the Jones Act. 34 J. MAR. L. & COM. 547, 548 (2003). This article 

remains, in my view, a pinnacle of scholarship synthesizing the Court’s 

jurisprudence on the seaman status issue and serves as a useful guide for 

future cases. 

1

 In addition to benefitting over the years from Prof. Robertson’s outstanding body of 

scholarship on maritime and tort law, I also consider myself fortunate to have counted Prof. 

Robertson as a friend dating back to our service together on the Louisiana Law 

Review. I was indeed lucky to have David serve as my first student editor.