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Seaman Seeks En Banc Review of Employer Ruling In Transocean Pirate Attack Suit

Case:   James Johnson v. GlobalsantaFe Offshore Services, Inc.
             United States Fifth Circuit Court of Appeals
             799 F.3d 317 (5th Cir. 2015)

An oil rig worker severely wounded during a 2010 pirate attack aboard a rig off the coast of Nigeria has asked the United States Fifth Circuit for an en banc review of his claims that a Transocean Ltd. subsidiary is liable for his injuries, maintaining the Panel incorrectly found the company did not employ the parties responsible. James Johnson, a drilling superintendent on the High Island VII when it was boarded by Nigerian gunmen on Nov. 8, 2010 who shot him in the leg with an AK-47 rifle, accused GlobalSantaFe Offshore Services Inc. (“GSF”) and other companies of negligence after the actions of other rig workers allegedly allowed the gunmen to access the rig. On August 13, 2015, a three-judge panel of the Fifth Circuit held there was not enough evidence to prove Houston-based GSF was the employer of rig hands whose negligence allegedly caused Johnson to have been shot by the invading gunman. While evidence showed that GSF paid the rig hands, was identified as their “employer” on W-2 forms, assisted with immigration issues and trained the rig’s chief mechanic, there was no evidence that GSF had the right to direct the rig hands or control the details of their work. The Panel also found that Jones Act case law did not control the vicarious liability analysis to the extent that it departed from common law principles of agency.

In his motion for full circuit rehearing, Johnson argued the Panel incorrectly held GSF was not legally liable by failing to apply the Jones Act test for an employment relationship between GSF and the rig hands, and instead incorrectly used common law principles of agency. “The Panel recognized that GSF issued W-2 forms to the negligent rig hands, trained at least two of the negligent rig hands and assisted with immigration issues,” Johnson argued. “Nevertheless, the Panel found no evidence of control and held that, without such, a reasonable jury could not find that GSF employed the negligent rig hands. Even under a common law agency test, an issue of fact exists as to the level of control. Thus, dismissal of Johnson’s claims was not appropriate.”

Johnson further argued the Panel failed to adhere to its prior holding in Spinks v. Chevron Oil Company, 507 F. 2d 216, 223 (5th Cir. 1975)(overruled on other grounds) and its progeny in determining that GSF was not the Jones Act employer of the negligent rig hands. Johnson argued Spinks makes it clear that, regardless of the level of control exerted by GSF over the other rig workers, the company would not cease to be the employer in this matter. According to Johnson, the Spinks holding recognizes a dual employment relationship under the Jones Act and that an employee is not required to prove up control to establish the company issuing his pay is his employer. Johnson also argued the Panel’s decision creates an issue wherein control is spread so thin throughout various corporate entities that no one single entity retains enough control to satisfy the common law test for an employment relationship. “The decision of the Panel will have long range implications,” Johnson warned. “Not only will more than 300 GSF American payees be directly affected, but the decision will guide the definition of an employer in an international maritime setting as it relates to claims filed by Americans for injuries occurring overseas.”

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