PERMANENTLY MOORED VESSELS (Fall 97 issue) on maritimeconsultant.com
In the fishing industry, the issue of status of an employee often arises when the vessel on which he is working is a moored processor. Are they or are they not Jones Act Seamen.
The general rule is that employees working aboard permanently moored vessels such as floating restaurants, and fixed processing vessels are not Jones Act Seamen. See Kathriner v Unisea, Inc. 975 F.2d 657 (9th Cir. 1992) and Pavone v. Ketzel, 52 F.2d 560 (5th Cir 1995).
This rule applies even if they are documented and capable of being moved.
A determination of what is meant by "permanently" and "moored" must be made to apply the rule. Is an anchored vessel "moored". Is it "permanently" moored.
It is unknown whether or not the courts were aware of the Coast Guard rule relating to "permanently moored vessels." It might be instructive to examine their standards. These are found in the Marine Safety Manual, Volume II section 10.I and is set forth in full below.
10.I Vessels in Immobile Status
1. Permanently Moored Vessels.
a. Introduction. A floating fuel dock, showboat, theater, hotel, restaurant, museum, etc., is not a "vessel" for inspection purposes if it is permanently moored and thus taken out of navigation. In this manner, the entity is "substantially a land structure" and not subject to the inspection laws. However, it may be subject to other regulations, such as those promulgated under the Ports and Waterways Safety Act (PWSA). The following criteria should be used in determining whether an entity is "substantially a land structure":
(1) It must be securely and substantially moored as approved by the OCMI.
(2) The mooring must be so rigged that its lines cannot be inadvertently or accidentally cast off, it is unlikely to break away from its mooring, and it cannot be moved away from the mooring without special effort (i.e., the use of tools).
(3) Permanent connection to shoreside facilities is evidence of being a "land structure." The nature and use of the entity may also be considered.
Several judicial decisions have employed these criteria. The district legal officer should be consulted when there is doubt as to a particular vessels status. There is no simple rule, and the test of reason must prevail.
b. Changes In Use. A vessel may be placed in navigation periodically, yet keep its status as "substantially a land structure" when moored. When returned to navigation, it becomes subject to inspection under the regulations applicable to its particular operation. the owner or operator must notify the OCMI prior to placing the vessel in navigation. When the vessel is again immobilized, the OCMI must approve the mooring arrangement before the vessel can be considered "permanently moored", Once these conditions are met, the vessel would again be considered out of navigation. This procedure is intended to allow a permanently moored vessel to make infrequent trips for purpose of overhaul, drydocking, location changes, etc. This procedure is not intended to allow the "permanent" mooring of a vessel that is placed in navigation on a regular basis (e.g., on weekly or monthly trips between ports). When intended operations are tantamount to use as a vessel normally requiring inspection, claims of status as substantially a land structure are voided and the structure must be inspected and certificated. [NOTE: Local authorities should be advised whenever a vessel's status is changed to "substantially a land structure", so that appropriate civil safety codes may be applied.]
2. Grounded Tank Vessels. Questions have been raised as to whether a vessel used for the storage of soya bean oil (a Grade E Liquid) would be subject to inspection under 46 U.S.C. 3301 and 3701 et seq., if it were grounded at a suitable location. Questions have also been raised concerning the status of such a vessel used for floating storage alongside a dock. If such a vessel were completely grounded and not afloat, it would not be subject to inspection. To be considered thus, provisions would have to be made to ensure that the vessel remains in a fixed position at all times, including times of unusually high water. In other words, the vessel would have to be so securely grounded that it could not be used in navigation subsequently. Therefore, unless the provisions of 10.D.1 and 10.I.1 above are met, such vessels as those cited above are subject to inspection under Subchapter D.
3. Permanently Anchored Vessels Operated For Public Patronage. Such a vessel, operated as a public museum, restaurant, or hotel, unless permanently moored as specified in paragraph 10.I.1 above, is subject to inspection and certification under Subchapters H or T as a self-propelled passenger vessel.
4. Foreign Vessels. Prior to any determinations by the Coast Guard concerning a foreign-built vessel intended for use in an immobile status, a determination regarding use in coastwise trade should be obtained from the U.S. Customs Service by the vessel owner.
For a determination that a permanently moored floating casino was not a vessel under admiralty law, see King v President Riverboat Casino-Mississippi, Inc. No 94-233, 1995 U.S.Dist. LEXIS 12101 (S.D Miss. 1995)