A PERCENTAGE OF ACTIVITY TEST FOR JONES ACT SEAMAN STATUS

ALEXANDER v, EXPRESS ENERGY SERVICES OPERATING  LP, (Federal Fifth Circuit 2015 Case: 14-30488  Document: 00513035192  Date Filed: 05/07/2015  http://www.ca5.uscourts.gov/opinions/pub/14/14-30488-CV0.pdf

OUR GHOSTLY LEGAL COMMENTATOR REPORTS ON A PRECEDENT MAKING CASE

 Greetings Justice Brandeis here. It's been a while, but as you know I've been dead for quite some time, a sort of ultimate retirement and it really takes  a corking good precedent making case to motivate me to write. As always thanks to my pal NAMAZU for the transcription services. Being dead, not just anyone can hear me. But I definitely received an earful while listening to oral argument in the Fifth Circuit Federal Appeals Court down in New Orleans recently. In a maritime personal injury case it is important early on to accurately determine the "seaman status" of the injured party. If someone working on the water is not a seaman their prayer for recovery from injury is pretty much going to be limited to that provided for in the Longshoremen and Harbor Workers Act. If an injured party is declared a "seaman" within the meaning of the Jones Act the initial potential for recovery may seem even more limited than in a Longshoremen and Harbor Workers Act case, but under the Jones Act a "Seaman" in aggravating circumstances may receive additional and even punitive damages.

 The U.S. Gulf Coast offshore oil and mineral industry is serviced by many workers who spend significant time aboard vessels traveling to or from various drilling or production structures. These workers are engaged in the maintenance and repair of such structures. The vessels they commute on are generally utility craft serving as a sort of maritime version of the pick up truck and crew van.  Other workers may serve aboard vessels such as lay barges which have as a mission of the vessel the creation, maintenance, or repair of offshore oil and mineral industry structures. The service technicians who live and work aboard these larger "industrial vessels" designed to have as a mission the construction, service, or repair of offshore structures are generally considered "Jones Act seamen" under the law as "crewmen" who contribute to the mission of the vessel. Those who are brought to work on crew boats and utility craft, and especially when they also perform similar services on occasion to shore based oil industry structures, often are not classed as Jones Act Seamen.

Traditionally, the seaman status test has two elements. First the claimant of seaman status must demonstrate that their duties contribute to the function of a vessel or the accomplishment of its mission. Secondarily the seaman status claimant must have an employment connection to a vessel or an identifiable group of vessels, in navigation.. In Alexander v. Express Energy Services the Federal Fifth Circuit Court of Appeals applied a test devised by the Federal Fifth Circuit as a partial indicator of seaman status.  The test is meant for situations where technicians travel aboard crew boats and utility craft, often owned by their employer, operated by a a Coast Guard licensed boat operator, and where they occasionally handle mooring lines or other simple chores related to the maneuvering of the vessel. However, in these cases the worker's primary tasking is the service of the oil industry structures. In such cases the Fifth Circuit applied a percentage of  time aboard test. The apparent Fifth Circuit rule was that if 30% of an employees time was spent aboard a vessel then Jones Act seaman status might be awarded for such workers. In the instant case (Alexander  v. Express Energy. Supra) the Appeals court considered evidence demonstrating that the plaintiff employees spent about 65% of their on the job time working on a fixed platform without any need for or contact with an adjacent vessel. Based on the evidence that the employees did not spend 30% or more of their time aboard vessels the appeals court upheld an earlier fifth circuit trial court ruling granting the defendants a motion for dismissal. This case moves the percentage of time test developed at the Fifth Circuit trial level to acceptability at the appeals level making the concept much stronger precedent. 

Well, stay dry and stay alive until next time.

Editor's note this and all previous comments by our lead legal analysts are in our ADMIRALTY LAW SECTION

                                                       

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WHY KURDISH WOMEN FIGHT THE ISIS

"Her War: Women vs. ISIS" (RT Documentary)
  https://www.youtube.com/watch?v=uqI0a4VgEs8&feature=youtu.be

 Here is the story of the Kurdish Women Soldiers who frighten the ISIS terrorists to death. They have learned to deal out death and per ISIS beliefs if one kills you, you go straight to hell. More power to you ladies! To watch the video on Youtube click HERE

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ISIS IN RUSSIA !

ISIS Declares Governorate in Russia�s North Caucasus 

Region -

 Map CIA WORLD FACT BOOK

 Important new article from the

 INSTITUTE FOR THE STUDY OF WAR:

Jun 23, 2015 - Harleen Gambhir

ISW assessed in early June 2015 that one of ISIS�s most likely courses of action during the Islamic holy month of Ramadan would be to declare a governorate in Russia�s North Caucasus. ISIS indeed announced the creation of a new governorate, called Wilayat Qawqaz (Caucasus) in the region on June 23, 2015, after several senior militants in the area pledged allegiance to ISIS.

INSTITUTE FOR THE STUDY OF WAR

 Not so long ago we wrote a post on our worst nightmare, an Islamic state with a powerful navy. Basically we saw two scenarios where such a state and navy might emerge in the "near term future", such as by mid century. First we speculated that if Europe didn't get a grip on its immigration /Islamofascists aggression problem; France , Britain, the Netherlands and  one or more of the Scandinavian countries could become Islamic states. The contributions of these states, thankfully still self governing, and democratic to the "NATO Navy", are substantial. If their naval forces fell into Islamic hands, there would be an instant and regionally (North Atlantic) powerful Islamofascists navy able to reach the U.S. to combine with our own internal 5th column Muslims to turn America into the kind of battle ground Syria and Iraq are today. The other even more scary scenario would be if the Russian Islamic minority   ( a whopping 29% of the population today and growing) , took over Russia placing a powerful nuclear force as well as an invasion capable Navy in Islamofascists hands. 

 The  INSTITUTE FOR THE STUDY OF WAR has published a report indicating that Southern Russia is already under Islamic assault, and the only thing that has allowed Russian forces to not become strained in attempting to reclaim control of the region is that al Qaeda and ISIS are engaged in a civil war within the region to see who will dominate their new self declared Emirate. In other words Russia is not  facing a clearly unified enemy in the region just yet, despite the fact that the region is clearly in Islamic inspired rebellion against Russia. We urge our readers to use one of the links to cross over to the  INSTITUTE FOR THE STUDY OF WAR to read this article in its entirety. You probab;ly won't be getting anything on this amazing and frightening development from U.S. net work news sources any time soon. 

                                  

-http://understandingwar.org/backgrounder/isis-declares-governorate-russia%E2%80%99s-north-caucasus-region

Ihttp://understandingwar.org/?utm_source=ISIS+Declares+Governorate+in+Russia%27s+North+Caucasus+Region&utm_campaign=What%27s+Next+in+Syria%3A+A+Six+Month+Forecast&utm_medium=email#sthash.PKSGoMaR.dpuf

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CHINA's INVISIBLE FORCE IN THE SOUTH CHINA SEA

HOW FAR WILL THE DRAGON SWIM? IS IT BREEDING UNDERWATER?


Photo: USN

We recently reported that China has apparently slowed down or even halted their construction of artificial islands in the South China Sea. In that post we noted that we didn't really think it was an overture of peace with the Dragon's neighbors. Rather we believe the Dragon has built enough of these outposts to serve its purpose of wresting the exclusive economic zones of its neighbors and pocketing the potential revenues. Artificial islands are expensive to build. But they do lend a certain near credibility to Chinese claims of soverignity over the watery turf of neighboring states like the Philippines. Now we have to wonder, were the artificial islands in fact not ever part of a "lawfare" scheme to win in an international legal contest decided by an international tribunal? Perhaps the Dragon always intended to take the area by naval force? Perhaps the artificial islands are part of a quite different scheme that not only involves stealing the fisheries and offshore mineral rights of neighbors but also "pushing the U.S. Navy back to Pearl Harbor". What is happening or could be happening under water near these artificial islands claimed by China smacks of a naval war plan.


Photo USN


 The Dragon has a growing fleet of nuclear propelled ballistic missile submarines. In addition to the economic reasons the Dragon always puts forth for wanting all of the South China Sea, and the Dragon;s bogus historical claims, it probably also wants a hideout for this strategic submarine fleet. In the waters near the artificial islands the Dragon may be constructing a deep water haven for its strategic submarine fleet, where a large portion of the fleet could avoid detection. The sea floor in much if the south China sea is characterized by underwater canyons, a perfect hideout for a submarine.


 China's land grab in the South China Sea is expected to be a major bone of contention in upcoming meetings between the U.S. Secretary of State and Chinese Vice Premier Wang Yang. China is coming into the talks claiming that it has wound down its construction of artificial islands. This may be true and we might even see some willingness to make minor compromises with their neighbors like moving the line of their claims a little farther offshore of the Philippine main island beaches. Presently their claims virtually run right up the low water mark on some Philippine beaches. Nothing like the appearance of an olive branch and and an apparent cessation of obviously hostile activity to lull an incredibly inept U.S. administration into not looking too carefully at the Dragon's real objectives. We think they are trading almost meaningless concessions on their land grab to mollify a hair brained U.S. administration into not looking into the mouth of a trojan horse. The real goal is an undisturbed, if not undiscovered submarine base well out to sea from the Chinese mainland. 

 The U.S. goal of late has been solely focused on getting China to ease its reclamation efforts and its militarization of the artificial islands it has created. China now says its through building islands but intends to "develop those it has finished. " This literally gives China fortified naval installations and a major hidden submarine base smack in the middle of one of the world's  busiest and important shipping lanes of vital interest to Japan and the U.S. West Coast trade. But going into the new talks the U.S. Secretary of State appears to have only one agenda, stop island construction. Thus our bogus administration gets an assured win that will be lauded by the U.S. lap dog media and this will all go down without mention of the submarine threat. 

The South China Sea is  bounded by Vietnam, China, Taiwan, Japan, the Philippines and Malaysia.  The area is one of the world�s most important international shipping lanes. Under codified (UNCLOS) international law much of it is "international waters. Yet, China claims that  it holds maritime rights to about 80 percent of the sea, and not as the usual international right of ways such as exclusive economic zones but as the territorial sea of China China's claim is  vigorously contested the neighboring states and international shipping interests.

Beijing views the South China Sea as a strategic holding as  it guards China�s southern flank. That flank includes  a submarine base in Sanya, on China�s Hainan island. The People�s Liberation Army Navy (PLAN)  has constructed  underwater entrance ways  there to quietly dock some of its submarines, including those that carry ballistic missiles. In recent years , China has built  up a nuclear deterrence or attack  capability in of lesser size than that of the United States or Russia. But its still enough  to blow up the world. The Dragon's  submarine program is a major part of that nuclear weapons program.. Because  submarines can often avoid detection, especially with such obvious preplanning, they are less vulnerable to a first-strike attack than land-based intercontinental ballistic missiles or nuclear bombers. 

At the moment, China�s JL2 submarine ballistic missiles can't reach the United States from the South China Sea.   But the Dragon seeks to improve the range of those missiles in the near future.  But their subs forward deployed many may be able to put the U.S. West Coast at risk from positions in the Pacific beyond what China calls the "First Island Chain". It is far easier a nuclear sub to slip away from an underwater haven hundreds of miles from the obvious Chinese submarine pens and reposition in the Pacific than to slip out of a mainland port undetected. 

 We actually seen this "submarine bastion" strategy before used by the Soviets during the Cold War. There are U.S. naval analysts who are convinced that the Chinese are adopting a submarine bastion strategy but who will not speak out forcefully due to administration opposition. There is no doubt that the goal of the Submarine bastion strategy is to position missile subs where their ordinance can reach the United States. China is waving the olive branch over the artificial islands for two simple reasons. First the Dragon wants to protect its submarine bastion. Second it wishes to convince the Philippines to not allow rotational U.S. armed forces into its territory. The utter incompetence of the U.S. Secretary of state and his boss will pretty much insure that the Dragons lair is safe. However the Philippines is not so willing to give in to the Dragon. They have recently begun to warm up to Japan, their invader and occupier in WWII in the hopes of mutual defense. Why would they throw out their long time friend the U.S. when we are bound by formal defense treaties and they are looking for allies? We don't see much coming out of these talks but bluster and a delay in the commencement of open hostilities. The Dragon is still swimming towards the Philippines and the U.S. continues asleep at the switch, but so latently powerful that the Dragon wants to approach slowly. Meanwhile back at the White House the administration works daily to further diminish the remaining power of the United States. 

     


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RUSSIANS LIMITING ARCTIC OIL CARGOES TO RUSSIAN FLAG TANKERS

PD Non Russian Tanker in the High Arctic in Summer

 This will probably not be good news for Russian tanker operators, most of them operate under flags of convenience. 

New Russian regulations by the Ministry of Transport propose to severely restrict shipping with petroleum products in Russian Arctic waters. This gets really sticky when we stop to consider that Russia claims all of the Arctic Ocean from their Arctic shoreline to the North Pole. If adopted, companies will be prohibited from exporting Russian Arctic oil and gas with foreign-registered ships. As is common in cabotage law, the ministry is also considering banning Arctic oil shipping via vessels that are not Russian built, even if Russian registered. 

The regulatory proposal is largely seen as a negative response to western  sanctions against the Russian Arctic oil industry. Those sanctions are severely impacting Russian operators Rosneft and Gazprom both of which are highly dependent on western technology and consultants for Arctic field developments.

Rosneft has announced the postponement of several projects. Apparently the ministry is deadly serious about limiting oil transport to Russian tankers regardless of negative impacts on Russian related business. In partial mitigation, the ministry has extended field license terms for Rosneft. Given the present world oil glut and consequent low prices the Russian operators may not be as damaged by the delay in bringing the oil to market as it at first appears.  

The new rules however are likely to create far more damage to Russian shipowners than to foreign shipping competetion.  Most Russian tanker companies are using flags of convenience like Liberia and Panama including  Russia�s biggest shipping company Sovcomflot. Sovcomflot's  most recently planned LNG carriers are all planned to be registered foreign. Western maritime analysts believe that the  Russian shipbuilding industry is not yet ready to service the construction of the number of ships needed.

Russia won't have a major tanker yard capable of VLCC or ULCC production until the new Zvezda yard near Vladivostok is complete in 2018. We don't see the issues with the proposed new regulations as a deal killer for the Russian government. They will simply grant exceptions and exemptions to keep the oil moving as soon as it is profitable to do so, and rigidly enforce the policy once they have the fleet they want. Russia is not going to kill off their tanker building or operating sectors. Russia is a crony capitalists state the government and the firms in favor will do all right.

 

Big Oil Playground, Russian Bear Preserve or European Periphery?: The Russian Barents Sea Region towards 2015Paperback � May 15, 2005

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HOW MUCH OF A DIRECT THREAT TO AMERICA IS ISIS?

ISIS DIRECTLY THREATENS THE U.S. MOSTLY BY INFORMALLY ATTACHED "LONE WOLFS". http://nationalinterest.org/feature/how-much-does-isis-really-threaten-america-12993?page=show


U.S. Navy Photo by PO-2 Eli J. Medellin, USN


 We also have ISIS word for it that they have planted probably an exaggerated number of trained and formally affiliated terrorists agents into U.S. society. They have also attempted to encourage lone wolf assinations of individual American military personnel by identifying such individuals on their website  http://americanadmiraltybooks.blogspot.com/2015/03/isis-urges-sympathizers-to-kill-us.html  . Their active recruitment of Muslim Americans is obvious, even spreading to the incident that we recently reported  of coming onto a U.S. Marine Base in the continental United States and spreading recruitment style brochures .http://americanadmiraltybooks.blogspot.com/2014/11/isis-presence-on-quantico-marine-corps.html. We believe that ISIS poses a direct threat to the U.S. mostly through its efforts to recruit and motivate lone wolf agents, much as the general media does, but we also are concerned with real trained agents who are in America and their ready access to our country through our uncontrolled southern border. We recently came across an article in the online version of the magazine THE NATIONAL INTEREST by Alex Ward. Mr. Ward makes some very valid points about why ISIS presently isn't worth a lot of paranoia. Like us he identifies our porous southern border as a major concern not only because the wave of illegals is flooding us with welfare claimants, illegal voters, criminals, drugs and other problems but because it the major avenue of invasion by groups like ISIS. http://nationalinterest.org/feature/how-much-does-isis-really-threaten-america-12993?page=show

 We disagree with his over all assessment that ISIS isn't much of a threat to the U.S. at the moment. We see it as a threat that is constantly increasing. We are concerned with reports of ISIS "cells" just over the border in Mexico, ISIS claims of having formally affiliated and trained agents in the U.S. and their claims that they want to and know how to smuggle a nuclear device into our country. We agree with some of his suggestions for dealing with the threat but disagree with his basic sense of a lack of urgency. We need a coherent strategy to deal ISIS a decisive death blow now. We also need a decisive strategy for dealing Wahhabi influenced Islam , the source of Islamic violence against each other and the Western societies a decisive death blow. This has gone on long enough. Those who want to live in the seventh century should be pushed back into the desert so far and become so isolated that is exactly how the remnant of of the Islamofascists of every stripe are forced to live.

 Despite, our fundamental disagreement with Mr. Ward's lack of urgency, we found his article interesting and containing many nuggets of truth. We link you to it and urge you to read it because it illustrates that at least a few members of the general American media are starting to see things that we have been reporting for months, even years. We've also linked a few of our related previous posts so that you may read our related views as well as this latest assessment by a professional journalists , compare and make up your own mind. We think "alarm" is perhaps unjustified, but the need for immediate effective action is apparent while the worst of the threat which is very real is still a bit into the future. Here is the link to Mr. Ward's article: http://nationalinterest.org/feature/how-much-does-isis-really-threaten-america-12993?page=show

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CHINA RECALLS SELECTED NAVAL RESERVISTS FOR POTENTIAL CONFRONTATION WITH THE UNITED STATES

THE DRAGON IS FLEXING MUSCLE

Photo: U.S.Navy

THE PEOPLE'S LIBERATION ARMY'S NAVY IS RECALLING  MANY OF ITS RECENTLY RETIRED SENIOR PETTY OFFICERS TO ACTIVE DUTY TO MAN AN EXPANDED FLEET AGAINST U.S. FORCES

 

 You won't read about this is our national media, but it's no state secret in China, and if you happen to have someone who reads Mandarin with native fluency and monitor such Chinese media; the evidence of this is as clear as a bell. Between June 16 and 17, 20015 Chinese naval authorities have been putting out the call for the return to active duty of a large number of recently retired naval senior petty officers, just the sort of people who operate and maintain navigation, propulsion, and weapons systems. There are no "90 day wonders" in the senior petty officer corps you have to have an amazing skill set of proven value and the proven ability to perform when the chips are down. If you are going to have a rapid naval build up the only way to build up this capacity fast is call up reserves or retirees. That is exactly what the dragon is doing today. 

 The PLAN has recently recalled nearly all of its senior petty officers (non commissioned) who have retired over the last two years. The PLAN make no secret about the fact that the call up is for a potential military confrontation with the United States over the South China Sea. Our unique sources tell us that the order for recall was issued by political bureaus of their original naval units and or the local "People's Armed Forces Departments". Part of the urgent need is simply to man the greatly expanded fleet which has grown in ship numbers faster than the lengthy apprenticeship programs can produce petty officers. As any navy institutionally knows, senior petty officers require time and experience to build, the alternative of intensive rapid training never produces the desired results and there are casualties involved to men and material when the operators and maintainers training is compressed. Of course the massive fleet has many functions other than confronting the United States. China has its own legitimate exclusive economic zone and territorial waters to defend plus it is busy attempting to seize the exclusive economic zone waters and water bottoms of neighboring states. The recent story we carried yesterday (June 18, 2015) of China's backing off commitments to build more artificial islands in the South China Sea looks a bit like a bone tossed toward the U.S. and its regional partners. But as we noted China has built over 2,000 acres of artificial island land in the disputed areas and intends to keep up military development on these parcels. 

 So does the recall of the PLAN's senior petty officer corps mean war over the Spratly Islands? We don't think so in any immediate fashion. First despite superior numbers China would be highly unlikely to emerge victorious just now. They would likely face combined U.S., Japanese, Philippine, and Australian naval units with many being technologically and tactically superior. If facing a combined force China's numerical superiority over the U.S. Seventh Fleet shrinks. China is hemmed in by the "First Island Chain"which are actually off shore nations like the Philippines. Not only can these nations offer naval resistance but they can direct weaponry out to sea from shore. The U.S. Navy has a very long reach and may be able to largely stay in the relative safety of the open Pacific and conduct a naval air war with the Chinese fleet and not even enter the South China Sea until there has been serious attrition to China's fleet. In other words, at this moment in history China could be setting up to become "fish in a barrel". 

 But make no mistake about it. The build up continues and the avowed goal of China about which it makes no denial is to "push the U.S. Navy back to Pearl Harbor" and to occupy and administer the South China Sea out to the "first Island Chain  as the virtual territorial waters of China. If it is not about to happen this month or this year it is still the long term goal. The recall of the retired petty officers is a step in that direction. 

 

 

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