On October 22, 2019, in Sara Herrera v. 7R Charter Limited, the U.S. Court of Appeals for the Eleventh Circuit reversed the U.S. District Court for the Southern District of Florida. Sara Herrera filed suit pursuant to the Jones Act, 46 U.S.C. Sec. 3104, alleging that she was injured during her employment as a seaman due to the negligence by her employer, 7R Charter Limited (7R). The district court granted 7R’s motion for summary judgment, finding that Herrera was not acting within the course of her employment at the time of her injury. In reviewing the district court’s opinion, the Eleventh Circuit found that Herrera did in fact raise a genuine issue of material fact and vacated the district court’s judgment.
The facts underlying this dispute are somewhat unique. Herrera was employed as a chief stewardess by 7R, the owner of motor yacht Olga, a luxury vessel in the business of chartering. As part of her job, she was supposed to be on call 24 hours a day, 7 days a week and 52 weeks per year, except when on vacation. The crew aboard Olga was small, so everyone helped in all departments, both inside and outside the vessel. Herrera’s responsibilities included maintaining the vessel’s interior, helping with docking, handling the lines on the vessel, and assisting with operations on the tender. (A tender is a smaller vessel used to ferry passengers from a yacht to other activities, such as diving, fishing, or visiting remote locations.)
7R previously owned its own tender but eventually began leasing a tender from the Olga’s captain, Bernard Calot. 7R and Calot reached a verbal agreement whereby Calot would always have a tender standing by in the event the Olga was chartered. Calot would use his own tender whenever possible and 7R would be charged $400 per day for the tender’s use. If Calot’s tender was not available, then Calot would have to lease another vessel.
In 2015, Calot purchased a Protector brand vessel for use as a tender for the Olga. Soon after purchase, the Protector vessel was added to the Olga’s insurance policy as an additional watercraft. Before use as a tender, the Protector vessel required repairs, maintenance and upgrades—all paid for by Calot. After completion of repairs, Calot picked up the Protector vessel from the mechanic and drove it straight home. Calot testified that he did not immediately perform sea trial because it was late in the day and it was easier to simply go home.
The following morning, Herrera’s daughter and two friends were visiting. Herrera testified that she, Calot, and their guests took the Protector out for a sea trial. No other crew members from Olga were aboard the Protector. The owner of 7R never requested that the Protector undergo a sea trial. Calot never requested permission from 7R to conduct a sea trial. During the sea trial, Herrera said that she spoke with her guests and listened to music. The group eventually decided to get lunch at a nearby marina. While approaching the marina, the Protector entered a “no wake” zone. Herrera stood up at the bow of the Protector to help tie off the vessel at the dock in the marina. Unbeknownst to them, another vessel passed nearby the Protector, creating a wake which threw Herrera into the air, causing her severe injuries and to lose consciousness. Calot never charged 7R for use of the Protector that day.
The Jones Act provides that “[a] seaman injured in the course of employment” may “bring a civil action at law . . . against the employer.” 46 U.S.C. Sec. 30104. In determining whether a seaman working in the course of his employment, the Eleventh Circuit cited with favor to Beech v. Hercules Drilling Co., LLC, 691 F.3d 566 (5th Cir. 2012). In Beech, the Fifth Circuit held that “the test for whether a Jones Act employee was acting within the course and scope of his employment is whether his actions at the time of the injury were in furtherance of his employer’s business interests.” Id. at 574. The Eleventh Circuit also cited with favor to Fowler v. Seaboard Coastline R.R. Co., 638 F.2d 17 (5th Cir. Unit B Feb. 1981) for further guidance on the scope of employment under the Federal Employers’ Liability Act (FELA), which is a similar liability scheme on which the Jones Act is based. Pursuant to Fowler, the Eleventh Circuit held that the proper test for determining the scope of employment under FELA was “whether the act was one which the employer might reasonably have foreseen and which the employee might reasonably have thought necessary in the interest of or in the benefit of the employer.” Id. at 20.
Irrespective of whether the Eleventh Circuit relied on the standard set forth in either Beech or Fowler, the Eleventh Circuit found that the district court erred in finding that Herrera and Calot were operating the Protector for pleasure rather than for any business purpose. In the Eleventh Circuit’s view, because both Herrera and Calot testified that they were operating the Protector for a sea trial, there was a genuine issue of fact as to whether Herrera’s injuries occurred within the scope of her employment. Based in large part on the testimony of both Herrera and Calot, the Eleventh Circuit concluded that Herrera had come forward with some evidence that she and Calot were conducting a sea trial at the time of her injury and the sea trial was within the course of their employment with 7R. The fact that at the time Herrera and Calot were romantically involved or that their testimony may be self-serving was not necessarily dispositive. For motion for summary judgment, the only issue to be considered whether Herrera was able to raise a genuine issue of fact. In the view of the Eleventh Circuit, Herrera had done enough to do so, and therefore, the district court had erred in granting summary judgment to 7R.
Under the circumstances, the Eleventh Circuit vacated the district judge’s judgment and remanded for further proceedings consistent with its October 22 opinion.
David Y. Loh is a member with Cozen O'Connor in New York City, New York.
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