- Certain Quarterbarges No Longer Considered "Vessels" for Purposes of the Jones Act
- July 8, 2014 | Author: Stephen H. Clement
- Law Firm: Jones Walker LLP - New Orleans Office
It's been nearly a year and a half since the Supreme Court redefined the term "vessel" in Lozman v. City of Riviera Beach and the practical effects of that decision are beginning to appear in recent case law. In Lozman, the Court held that in order to determine whether an "artificial contrivance" is a vessel, a court must determine whether "a reasonable observer, looking to the structure's physical characteristics and activities, would consider it designed to a practical degree for carrying people or things over water." Since then, courts around the country have applied the new definition to the cases in front of them, often disrupting prior judicial precedent. One such case out of the Eastern District of Louisiana is Martin v. Fab-Con, Inc., in which Judge Vance strayed from the Fifth Circuit's holding in Holmes v. Atl. Sounding Co. and held that a "sleeping barge" was not a vessel.
In 2006, the Fifth Circuit held in Holmes that the quarterbarge BT-213 was a "vessel" for purposes of the Jones Act. The BT-213 was "in effect, a floating dormitory," with a four-person crew of two cooks and two janitors, sleeping quarters, toilet facilities, a galley, locker rooms, and electrical generators. It had a raked bow, but no navigational or steering equipment or lifeboats. The barge was not capable of self-propulsion, but it had temporary running lights installed when it was to be towed. The Fifth Circuit concluded that the BT-213 was properly considered a vessel, because it was "'practically capable' of transporting equipment," such as the "sleeping and eating 'equipment'" and feeding and housing supplies on board," and because it had a raked bow, was outfitted with "vessel-like gear," and was only temporarily moored.
In Martin, however, Judge Vance held that the contrivance at issue, the UNITY, was not a vessel, despite being "nearly indistinguishable" from the BT-213. The UNITY had no rudder or other steering mechanism, had remained stationary for most of the past several years, and its interior was similar to living quarters on land. Judge Vance noted that the Lozman majority found that the analysis used by the Fifth Circuit in Holmes was "inappropriate and inconsistent with Supreme Court precedent" and that the Supreme Court explicitly rejected the argument that a quarterbarge can be considered a vessel because it can transport "its own furnishings and related personal effects." Further, the UNITY was incapable of moving under its own power and even when it was being towed, it never transported a crew or cargo. Instead, it was designed exclusively to house workers, serving, in the words of its owner, as a "floating hotel."
The legal ramifications of Martin are not industry changing. However, they do disqualify an entire category of "artificial contrivances" from being considered "vessels." Maritime employers can now safely assume that an employee's time spent living or working on barges like the UNITY and the BT-213 will not be considered when determining the amount of time he or she has worked on vessels for purposes of the Jones Act.