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Borrowed Employee: Seaman Status

In the case of borrowed employees, there is no "bright line rule" as to whether courts look to an employee's entire employment with the employer or only the period of employment with the borrowing employer to apply the 30% test for determining seaman status

In Wilcox v. Wild Well Control, Inc., however, the Fifth Circuit addressed the interplay between the borrowed servant doctrine and the seaman status test. This case arose out of injuries sustained by Plaintiff, Joseph Wilcox, when gasses exploded while welding on an offshore platform. Wilcox, an employee of Defendant-Max Welders, was working as the borrowed employee of Defendant, Wild Well Control, a subsidiary of Defendant, Superior Energy Services. While employed as a welder, Wilcox worked in numerous locations, including a fabrication yard in Louisiana. He spent less than thirty percent of his entire employment in the service of a vessel or group of vessels.

Wilcox brought a Jones Act claim against Defendants, Superior and Wild Well. Wilcox argued that that seaman status should be determined from the time that he began to work for Wild Well, rather than the total course of his employment.

The Fifth Circuit noted that the status of an employee who splits time between land and a vessel is "determined in the context of his entire employment with his current employer." But if the employee "receives a new work assignment before his accident in which either his essential duties or his work location is permanently changed, he is entitled to have the assessment of the substantiality of his vessel-related work made on the basis of his activities in his new job." Wilcox was not permanently reassigned to work on Wild Well's vessel-the project was expected to last for approximately only two months. In addition, his primary duty did not change because he continued to work as a welder. As a result, the Fifth Circuit rejected Wilcox's argument and determined Wilcox's argument, found that his employment status should be determined by his total employment, rather than from the time he began work for Wild Well. The Fifth Circuit held that Wilcox was NOT a Jones Act seaman.

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