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16 • MarineNews • February, 2005

Act has drawn some criticism from the federal courts. In Landry v. Specialty

Diving of Louisiana, a federal court sit- ting in the Eastern District of Louisiana, addressed the scope of the "divers' excep- tion".

This federal court's ruling suggested that there is an "exception" to the divers' exception. The Landry court held that a diver, who spent more than 50% of his work time on board different vessels, did not qualify as a "seaman" under the Jones

Act. The court reasoned that this evi- dence did not show that the plaintiff-diver was exposed to the "traditional perils of the sea", and therefore did not fall within the divers' exception.

In addition to the divergence of approaches between the federal and state courts in Louisiana, other courts have also taken their independent approach when deciding the seaman status under the

Jones Act.

When faced with this dilemma, these courts have focused on whether there was a substantial connection to a "vessel in navigation". A Hawai'i federal court deci- sion in Becker v. Dillingham Construction

Pacific is representative of this approach.

In this case, the federal court acknowl- edged the differences in each jurisdiction as to what constitutes a "vessel in naviga- tion."

The federal court, relied on other Fed- eral Ninth Circuit cases, and found that the flat barges and flexifloats in question did not automatically fall outside the scope of "vessels in navigation."

The fact that these vessels may not have been primarily transportation vessels did not prevent the court from finding that the plaintiff may be a "seaman" under the

Jones Act. In contrast is the prior ruling of a Florida Federal court in Hurst v. Pil- ings & Structures.

This court ruled that the "spud barge" in question automatically prevented a diver from qualifying as a Jones Act seaman.

The Hurst Court reached this decision because it determined that the primary function of the spud barge was to serve as a work platform and not a transportation vessel.

Accordingly, as the above cases sug- gest, the legal requirements for divers to qualify under the Jones Act are constantly evolving. Commercial divers and their employers should stay abreast with the trends in these requirements under the

Jones Act. While work logs and journals often prove helpful in protecting both par- ties' rights, it is no substitute for being knowledgeable of the specific require- ments of the federal and state jurisdictions covering your diving work or the work of your diver-employees. 27-ft eXtreme PilotMaster

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Legal Beat

About the Authors:

James P. Nader is a partner and Rudolph F. Lehrer is an associate with the law firm of Lobman, Carnahan, Batt, Angelle & Nader in New Orleans, Louisiana. Mr.

Nader's trial practice over the last twenty years has included Admiralty and Mar- itime Law, an area in which he is an adjunct professor at Tulane University. Mr.

Lehrer's primary practice areas include admiralty, maritime law, and insurance defense. For more information on the firm or for those who have questions/feed- back regarding this article, please see its Website at www.lcba-law.com, or contact them at 400 Poydras St., Suite 2300, New Orleans, LA 70130, phone (504) 586- 9292.** **This article is for general information and educational purposes only, and should not be construed as legal advice. The authors are available to discuss any specific questions or concerns regarding any issues related to this article.

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