Kjar v. American Divers, Inc.
Niel Kjar was a commercial diver that worked off and on for American Divers, Inc. ("ADI") since 1981. In 1988 Kjar was working to replace a submarine hose for ADI. The water at the dive site was approximately 65 feet deep. The tugboat Holokai, owned by Dynamite Inc., was used as a dive station for Kjar to work from. On September 13, 1988 Kjar was injured during a dive and suffered Type II, central nervous system decompression sickness, also known as the bends. As a result, he is now permanently disqualified from diving.
Kjar filed suit against ADI seeking damages under the Jones Act. On June 17, 1991, Kjar filed a motion for partial summary judgment requesting the court to find, as a matter of law, that the plaintiff was employed by ADI as a seaman within the meaning of the Jones Act. ADI filed a motion in opposition; specifically contesting the connection of Kjar to vessel-based work during the applicable time period. ADI argues that Kjar had no permanent connection with the Holokai because in the context of his overall employment with ADI he participated in mostly land-based dives and that this was merely a fortuitous encounter. Kjar argues that his connection with the vessel is measured at the time of the accident, not the sum of his career with ADI.When considering a diver's connection to a vessel does a court consider the entire scope of his employment or specifically his connection at the time of the accident?
The district court began its analysis by stating the three prong test to determine whether an individual qualifies a seaman. The court stated that the three elements require: 1) the vessel on which the claimant is employed must be in navigation, 2) there must be a more or less permanent connection with the vessel, and 3) the claimant must be aboard primarily to aid in navigation.
The court quickly addressed and dismissed any controversy to the tugboat qualifying as a vessel in navigation because the ADI did not object take issue with this element. It also quickly addressed the aid in navigation prong. The district court applied followed Supreme Court precedent in McDermott Int'l Inc. v. Wilander, 498 U.S. 337, 1991 AMC 913 (1991) to explain that this element is met by any person who works at sea in the service of a ship that faces the particular perils that maritime law seeks to protect. As such, the plaintiff as a diver who works below the sea and top-side while other divers are below clearly meets the third prong of the seaman status test.
In addressing the permanent connection prong the court first looked to its decision in Ramos v. Universal Dredging Corp., 547 F. Supp. 661 (D. HI 1982). Ramos explained that the purpose of this requirement is to exclude an employees association with a vessel that is merely transitory, fortuitous or incidental. Thus, a plaintiff may satisfy this requirement by showing that he performed a substantial part of his work on the vessel with some degree of regularity or the relationship between individual and the vessel, or group of vessels, is substantial in both point and time.
Kjar argues that 80% of his time logged with ADI during the hose replacement was vessel-based assignments. Further, he cites precedent from the United States Court of Appeals for the Fifth Circuit that held a diver's work is inherently maritime and does not necessitate the use of a vessel to establish seaman status because to complete his task he must embarks on a marine voyage in which he must successfully navigate the seas with his body as the vessel.
In contrast, the defendant cites Fifth Circuit precedent explaining that if an employee's regularly assigned duties require him to divide his time between vessel and land his status as an employee is determined by the context of his entire employment. The district court rejected this argument because, in that case, the Fifth Circuit was addressing maritime workers that split time between land and vessel not traditional seaman who work is solely maritime in nature, such as divers.
Further, the district court relied on its own binding precedent in Stanfield v. Shellmaker, Inc., 869 F.2d 521 (9th Cir. 1989), to explain that the appropriate application of the permanent connection prong requires the court look at the time of the injury. As such, the court did not concern itself with Kjar's land-based dives and vessel based dives because at the time of his injury he was assigned to the Holokai. The fact that the assignment was not for a period of months or years is irrelevant because it was a complete assignment involving a substantial number of logged hours. Therefore, Kjar's connection was not sporadic or fortuitous and clearly satisfies the requirement that he perform a significant part of his work aboard the ship with at least some degree of regularity. Thus, the district granted Kjar's partial motion for summary judgment.
An individual will qualify as a Jones Act seaman if he the individual can prove that the claimant: (1) is employed by a vessel in navigation, (2) he has a permanent connection with the vessel, and (3) the claimant must be aboard primarily to aid in navigation.
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