In Rivera v. Kirby Offshore Marine, L.L.C., the US Court of Appeals for the Fifth Circuit revisited the Sieracki seaman doctrine with respect to a pilot injured onboard a third-party vessel, allowing the pilot to recover from the third-party vessel owner under a theory of unseaworthiness. Captain Jay Rivera served as a Branch Pilot for the Port Aransas Bar and Corpus Christi Bay who piloted vessels transiting those areas. 983 F.3d 811 (5th Cir. 2020). Rivera was assigned to bring a vessel owned by Kirby Offshore Marine, L.L.C., from Port Aransas to the Corpus Christi harbor. When boarding the vessel, Rivera stepped on an unmarked hatch cover, causing injury to his ankle and fracturing the fifth metatarsal on his left foot. Thereafter, Rivera was diagnosed with Complex Regional Pain Syndrome and deemed unfit to continue to perform his job as a pilot. Rivera’s commission was revoked and he lost his membership with the pilot’s association.

Rivera sued Kirby, seeking relief under a few alternate grounds: (1) common-law negligence; (2) the breach of the duty of unseaworthiness; and (3) negligently maintaining the vessel under § 905(b) under the Longshore and Harbor Workers’ Compensation Act (LHWCA). After a bench trial, the district court found that the vessel was unseaworthy under Seas Shipping Co. Inc. v. Sieracki, 328 U.S. 82 (1946), and alternatively, that the vessel was negligently maintained under § 905(b) of the LHWCA. Rivera was awarded damages for past and future wage loss and obtained a judgment in the amount of $11,695,136. Kirby appealed the case to the Fifth Circuit.

On appeal, the court addressed whether Rivera was permitted to bring a § 905(b) claim, because to do so he would have to be considered an employee of someone. It is well settled that pilots are not employees of their associations and are instead more similarly situated as independent contractors who work aboard vessels. Because Rivera was not an employee of any entity, he was not covered by the protections of the LHWCA.

The Fifth Circuit held that because Rivera could not avail himself of the protections of § 905(b) of the LHWCA and that he was not a Jones Act seaman, Rivera could pursue his claim for unseaworthiness as a Sieracki seaman. To prove his claim, Rivera had to prove that the vessel was unseaworthy, that is, unfit and unsafe for the purposes for which it should be used. The Fifth Circuit affirmed the district court, holding that Rivera established that the unmarked hatch cover was a tripping hazard and an unseaworthy condition for which he could recover.

Kirby also tried to argue that Rivera was contributorily negligent for the incident. The Fifth Circuit rejected this argument because the hazardous condition of the unmarked hatch cover was not open and obvious. Kirby further argued that the district court erred in allowing Rivera to introduce evidence of a subsequent remedial measure: a photo evidencing that reflective tape was placed on the hatch cover after the incident. The Fifth Circuit found that the district court did not abuse its discretion in allowing the evidence because there was other ample evidence that the court could rely on to conclude that Kirby was negligent.

The Fifth Circuit affirmed the district court’s determination that Rivera was a Sieracki seaman and that his damages were appropriately awarded.

This case demonstrates that the Sieracki seaman doctrine is alive and well. Operators who take on pilots at various port calls should be aware that pilots may be entitled to recover for unseaworthiness claims against a vessel owner.