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Thomas C. Fitzhugh III, left, and John Schwambach, right, are partners in the Houston office of Schouest, Bamdas, Soshea & BenMaier. Courtesy photos

Personal injury lawyers have haggled for two centuries to create a workable definition of “seaman” for their personal injury cases. Despite myriad cases over this time, the U.S. Supreme Court has never defined the word. Congress has been silent also. This has left the definition to the lower courts, and they have struggled with the word. The Supreme Court’s most recent forays into the issue have focused on what is a vessel and in defining who is a longshoreman and thus not a seaman.  See, e.g., Lozman v. City of Riviera Beach, 568 U.S. 115 (2013); Harbor Tug & Barge v. Papai, 520 U.S. 548 (1997). Attention has so focused on the definition of “seaman” in Jones Act cases that most have overlooked the definition of the word “seaman” in the Fair Labor Standards Act, which is more restrictive than that commonly used in personal injury cases.

The Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., is a New Deal statute originally designed, in part, to create more jobs by requiring employers to set overtime pay at 50% more than the regular hourly rate. The idea was that employers would hire more workers to avoid paying overtime. It had little impact on the huge unemployment problem of that time, but it is ingrained in our labor law today. A number of specifically listed workers are not subject to the overtime pay requirement. Seamen are exempt from this statute. See 29 C.F.R. § 213(b)(6). The statute does not define “seamen,” but the Fifth Circuit limited this exemption to individuals performing nautical duties. Walling v. W.D. Haden, 153 F.2d 196 (5th Cir. 1946). At the time of that decision an individual, for personal injury purposes, had to aid in the navigation of a vessel. That requirement was later jettisoned by the Supreme Court in McDermott International v. Wilander, 498 U.S. 337 (1991).

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