458 F.Supp.3d 1298
W.D. Wash.2020Background
- Plaintiff Nicholas J. Southard, hired by Ballard in 2008 as a commercial diver, alleges decompression sickness and neuropathy from a January–February 2017 multi-week saturation tunneling assignment in Egypt and sued under the Jones Act and admiralty law (maintenance & cure).
- On the Egypt assignment Southard worked as a "Compressed Air Worker" in a pressurized, dry (terrestrial) hyperbaric tunneling environment for ~35 days; Ballard did not own or operate vessels there and the nearest navigable water was ~2 miles from the tunnel entrance.
- Over his career Southard says he spent roughly 45% of his time working in service of Ballard vessels and performed vessel-related duties (operating/navigating dive boats, mooring, maintenance) on other assignments.
- Ballard moved to dismiss for lack of subject-matter jurisdiction, contending Southard was not a Jones Act seaman for the tunneling assignment and admiralty jurisdiction is lacking because the injury occurred ashore.
- The court applied the Chandris two‑part seaman test (duties contributing to vessel function; substantial connection in duration and nature) and focused on the worker’s current assignment for the relevant time period.
- Holding: the court found Southard’s tunneling assignment severed a substantial vessel connection, dismissed for lack of subject-matter jurisdiction, but granted leave to amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Seaman status under the Jones Act | Southard spent ~45% of employment serving Ballard vessels and performed vessel duties; thus he is a seaman | Tunneling assignment was dry, terrestrial, off vessels; while on that assignment he had no vessel control or access to navigable waters | Court: no seaman status for the tunneling assignment; jurisdiction lacking under Jones Act |
| Relevant time period for 30% "rule of thumb" | Evaluate overall course of employment (45% vessel service) | Focus on worker's current/basic assignment (tunneling) per Chandris | Court: evaluate the most recent tunneling assignment; overall career percentage not controlling |
| Admiralty (locality and connection tests) | Complaint invoked admiralty; maintenance & cure asserted | Injury occurred entirely ashore and was not caused by a vessel on navigable water | Court: locality test not met; admiralty jurisdiction not established |
| Leave to amend after dismissal | Requested leave to amend if dismissal granted | Opposed only to extent amendment would be futile | Court: granted leave to amend (deadline set), dismissal without prejudice pending amendment |
Key Cases Cited
- Chandris, Inc. v. Latsis, 515 U.S. 347 (1995) (two‑part test for Jones Act seaman status; focus on status and the 30% rule of thumb)
- Harbor Tug & Barge Co. v. Papai, 520 U.S. 548 (1997) (seaman inquiry must concentrate on whether duties take worker to sea; mixed question of law and fact)
- McDermott Int’l, Inc. v. Wilander, 498 U.S. 337 (1991) (workers who work at sea in service of a ship are eligible for seaman status)
- Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995) (two‑part admiralty jurisdiction test: locality and connection)
- Cabral v. Healy Tibbits Builders, Inc., 128 F.3d 1289 (9th Cir. 1997) (focus on whether duties were primarily sea‑based when assessing substantial connection)