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SEEKING SOLOMON'S WISDOM :
State Act, Longshore Act or Jones Act
Which to Choose ?
A Coast to Coast Discussion
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position and then seeking a second advantage by taking an incompatible position. 136 Recently the Fourth Circuit discussed the concept, stating:
- Although "[c]ourts have had difficulty in formulating a specific test for determining when judicial estoppel should be applied, at least three elements must always be satisfied. . . . First, the party sought to be estopped must assert a position inconsistent with that taken in prior litigation and the position must be one of fact rather than law or legal theory. Second, the prior inconsistent position must have been accepted by the court. And third, the party sought to be estopped must intentionally have misled the court to gain unfair advantage. 137
In Russell v. Rolfs , 138 the Ninth Circuit expanded upon the policy behind jurisdictional estoppel as follows:
- The policies underlying preclusion of inconsistent positions are general considerations of the orderly administration of justice and regard for the dignity of judicial proceedings. . . . Judicial estoppel is intended to protect against a litigant playing fast and loose with the courts. . . . Because it is intended to protect the dignity of the judicial process, it is an equitable doctrine invoked by a court at its discretion. 139
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This concept has been applied in administrative proceedings for the reason that "[t]he truth is no less important to an administrative body acting in a quasi-judicial capacity than it is to a court of law." 140
a. Introductory Issue: Statute of Limitations
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Therefore, if an employee files a Jones Act claim, and subsequently it is determined that he or she is not a seaman, the employee could then file a Longshore claim within one year of such denial.
The same is not true, however, for claimants who first file a longshore claim. The Fifth Circuit has held that the three year statute of limitation period in a Jones Act suit is not equitably tolled during the pendency of a LHWCA claim. 142 In Wilson v. Zapata Off-Shore Co., 143 the Fifth Circuit rejected the argument that by pursuing the longshore claim first, the claimant was not sleeping on his or her rights. Rather, the court recognized that, "Courts have been less willing . . . to apply equitable tolling in situations where the Claimant's delay in seeking a judicial remedy resulted from his choice to pursue administrative relief first." 144 The Fifth Circuit stressed that employees should protect their rights by filing a protective lawsuit in a federal forum. 145 Other courts have reached the same conclusion, refusing to toll the status of limitations. 146
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b. Voluntary Payment of LHWCA Benefits by Employer
The next issue I would like to address is the effect of an employer's voluntary payment of Longshore benefits in the absence of an administrative hearing or a § 8(i) settlement. This issue was addressed by the Supreme Court in Southwest Marine, Inc. v. Gizoni . 147 In Gizoni , a rigger foreman was injured and his employer voluntarily paid LHWCA benefits. 148 The Claimant subsequently sued the employer for negligence under the Jones Act. 149 The Court held that the mere receipt of voluntarily paid LHWCA benefits did not, in and of itself, preclude a seaman status inquiry in a Jones Act proceeding. 150 Specifically, the Court held:
- It is by now "universally accepted" that an employee who received voluntary payments under the LHWCA without a formal award is not barred from subsequently seeking relief under the Jones Act. This is so, quite obviously, because the question of coverage has never actually been litigated. Moreover, the LHWCA clearly does not comprehend such a preclusive effect, as it specifically provides that any amounts paid to an employee for the same injury, disability, or death pursuant to the Jones Act shall be credited against any liability imposed by the LHWCA. 151
The Gizoni decision, however, left unresolved the effect of an administrative law judge's formal
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award on the seaman status inquiry.
c. Preclusive Effect of a Formal Administrative Determination
The obvious preliminary question is: What constitutes a "formal adjudication" of a longshore claim? Generally, a formal decision or award of benefits rendered by an administrative law judge in a decision and order, following a hearing qualifies as a formal adjudication. 152 When a LHWCA claim is settled, however, the law is not entirely clear. For example, the Fifth Circuit has held that an administrative law judge's approval of a § 8(i) settlement constitutes a formal award of benefits. 153 The Ninth Circuit has held that the approval of a settlement by the District Director of
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the Office of Workers' Compensation Programs (OWCP) does not constitute a final adjudication of the issue of jurisdiction. 154 I would like to briefly mention the reasoning in a United States District Court case that was vacated for undisclosed reasons. In Kalesnick v. Seacoast Ocean Serv., Inc., 155 the court held that the approval of a settlement by the state workers' compensation board precluded a subsequent Jones Act proceedings. In so finding, the court treated the state agency approval of a settlement as a final adjudication. 156 This begets the question of whether settlements approved by the Office of Administrative Law Judges (OALJ) are treated differently than settlements approved by the OWCP.
ii . Fifth Circuit -- Applying Jurisdictional Estoppel
Within the Fifth Circuit, a formal award of Longshore benefits (either through an administrative law judge's decision and order or a § 8(i) settlement) precludes the re-litigation of seaman' status in a subsequent Jones Act trial. The leading case on this issue is Sharp v. Johnson Brothers Corporation . 157 The plaintiff in Sharp who was working aboard a barge that was chartered by his employer and was injured while repairing a bridge. Following the injury the employer
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voluntarily made payment to plaintiff under the LHWCA. Subsequently, the plaintiff filed a Jones Act suit, at which time employer ceased making the LHWCA payments. Thereafter, the plaintiff filed a LHWCA claim. The employer defended the LHWCA claim by arguing that the plaintiff was a Jones Act seaman and therefore excluded from coverage under the LHWCA. The parties then settled the LHWCA claim and a consent judgment was issued by the administrative law judge. 158 Subsequently, the federal district court granted the employer's motion for summary judgment in favor of the employer in the Jones Act litigation, holding in part, that the settlement agreement constituted an election of remedies and precluded the Jones Act suit. 159
On appeal the plaintiff unsuccessfully argued the following points: (1) that because of the "zone of uncertainty" between the Jones Act and LHWCA, an injured worker should be able to pursue both remedies simultaneously; (2) the fact that several commentators have argued that a worker should be permitted to accept benefits without losing his Jones Act claim; (3) there is no danger of double recovery for the employee because of the statutory credit; and (4) collateral estoppel should not apply because the issue of whether the worker was a seaman or a harbor worker was not litigated, as only a consent judgment was entered in the longshore case before the administrative law judge, who reviewed the agreement for fairness and not jurisdiction. 160
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The court began its analysis by distinguishing the Supreme Court's decision in Gizoni , noting that Gizoni dealt only with voluntary payment of longshore benefits. The court next stated that within the Fifth Circuit, as well as within other Circuits, a settlement agreement approved by an administrative law judge constituted a "formal award." 161 The court continued:
- It is true that LHWCA coverage was never litigated in an adversarial proceeding. But Sharp availed himself of the statutory machinery to bargain for an award, and he had the full opportunity to argue for (or against) coverage. . . . Having obtained the order the ALJ and the aegis of the DOL to ratify and enforce his settlement, Sharp ensured that his rights were more secure under the agreement than they would have been if the settlement were considered merely a contract between the parties. It follows that where the ALJ issues a compensation order ratifying a settlement agreement, a "formal award" should be deemed to have been made under Gizoni , and the injured party no longer may bring a Jones Act suit for the same injuries. 162
The court continued, noting that while Congress did not intend that a claimant forfeit the right initially to pursue both remedies simultaneously, Congress also did not intend that the claimant be able to pick and choose his ultimate recovery based upon which remedy conferred upon him a larger award. 163 The court noted that the LHWCA was not designed to create a mere safety net, guaranteeing workers a minimum award as they seek greater awards in judicial court. Rather, the Act is also intended to benefit employers, by providing limited and predictable liability in exchange
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for an employer conceding its right to defend the claim on the ground of absence of fault. 164
This view has been similarly espoused by other courts. In Hagen v. United Fruit Co ., 165 the Second Circuit held that a Jones Act award could not be validly determined if a Deputy Commissioner had jurisdiction and awarded LHWCA coverage, despite the fact that the Commissioner did not specifically state that Claimant was not a "member of the crew." In Kalesnick v. Seacoast Ocean Serv. Inc. , a case that was later vacated on undisclosed grounds, the District Court for the District of Maine held that a Maine Worker's Compensation Commission approval of a settlement was a final adjudication that precluded a subsequent Jones Act proceeding. 166
iii. Ninth Circuit No Preclusion
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settlement. In Figueroa v. Campbell Industries , 167 the Ninth Circuit held that an employee could litigate a Jones Act suit after recovering longshore benefits under an OWCP-approved settlement. In making its determination, the court noted that there was no express finding that the employee was not a "master or member of a crew." 168 The court went on to comment that "some maritime workers may be Jones Act seamen who are injured while also performing a job specifically enumerated under the LHWCA, and, therefore are entitled to recovery under both statutes, although double recovery of any damage element is precluded." 169
In the Ninth Circuit's decision in Papai v. Harbor Tug & Barge Co ., 170 the court permitted a subsequent Jones Act action after the issue of seaman status had already been litigated in an administrative proceeding. Papai , however, involved an actual decision and order issued by an administrative law judge, rather than the OWCP-approved settlement in Figueroa .
Papai is best understood with a clear understanding of the case's procedural history. First, Papai filed a Jones Act in federal district court. The Judge granted the employer's motion for summary judgment on the grounds that plaintiff was not a seaman. Next, the plaintiff filed a LHWCA suit. Subsequently, an administrative law judge issued a decision and order awarding benefits. Finally, the plaintiff appealed the granting of summary judgment in the Jones's Act claim.
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The Ninth Circuit reversed, holding that the Jones Act claim was not rendered moot by reason of plaintiff's receipt of compensation under the LHWCA. The court began its analysis by re-stating the general rule that voluntary payment of LHWCA benefits does not preclude a subsequent Jones Act claim. The court then relied upon its policy reading of Gizoni and the fact that both the Jones Act and LHWCA provide a credit for any payment recovered. Based on these findings, the Court made the legal leap to holding that the administrative law judge's decision and order did not preclude a Jones Act claim. 171 This decision ignores both the fact that the two Acts are mutually exclusive, and the fact that the administrative law judge had issued a Decision and Order, rendering that decision meaningless in subsequent litigation. In light of this poorly reasoned and illogical decision, I should pause to note that Ninth Circuit has not been entirely consistent in this area. In Risetto v. Plumber and Streamfitter, Local 343 , 172 the court applied the doctrine of jurisdictional estoppel to a party who took a prior inconsistent position in an administrative proceedings even though the issue was not previously, actively litigated before the administrative tribunal. Risetto , however, was an employment law case, and did not concern benefits provided pursuant to a federal statutes.
The reasoning of the Ninth Circuit comports with some policy arguments made by well-
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known and respected commentators, such as Gilmore and Black 173 and Professor Larson, who have favored the possibility of multiple avenues of recovery for injured workers. 174 Additionally, my esteemed co-panelist has written about this subject and commented on the benefit of having both doors (so to speak) open to the injured employee. In an article published in the Longshore Newsletter, Attorney Hillsman wrote:
- Together [the Jones Act and LHWCA] form a hedge against the twin specters of industrial disability and litigational delays. The Jones Act assures workers of their ultimate due while the Longshore Act tides them over against the vicissitudes of a crowded trial docket. Since the employer gets a dollar-for-dollar credit against any sums paid out in the interim, the carrier is protected against double recovery while the injured worker is spared undue financial hardship. 175
Thus, it is apparent that the Ninth Circuit has the blessing of the claimant's bar and other commentators.
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This issue is very important to me, as an Administrative Law Judge I am greatly concerned with the effect my decisions will have on subsequent litigation. Initially, I note that the Sharp and Figueroa decisions can be reconciled. The OALJ is a fact-finding body that begins the adjudicative process. Therefore, in theory, it is reasonable to distinguish an OALJ approved settlement from an OWCP approved settlement. In reality, however, the difference between the two types of settlement will depend on the counsel's request: Should the administrative law judge remand the case or issue an approval of a section 8(i) settlement? It is possible that approval of a settlement by one or the other of these offices could achieve very different estoppel results based on a procedure that has nothing substantively to do with the actual case or settlement. Therefore, counsel should be wary of the possible repercussions his or her request for approval of a settlement before the OALJ or OWCP might invite.
I believe that this dilemma can be avoided by rejecting the Ninth Circuit's case law, and treating all administrative decisions (whether a decision and order, an administrative law judge approved settlement, or even an OWCP settlement) as having a jurisdictional estoppel effect on any subsequent Jones Act proceeding. The Jones Act and LHWCA are mutually exclusive statutes and once a party proceeds beyond the mere filing of concurrent suits to the acceptance of benefits under either a decision awarding benefits, or a settlement, the claimant has then not merely utilized the administrative system, but also received the security of an enforcement mechanism. At this point, the claimant has made a selection of remedy, and the administrative body has made, whether express or implied, a determination concerning the applicability of the LHWCA. Further, I do not find the fact that an employer is entitled to a credit for amounts paid, to be in anyway a persuasive reason for
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allowing two overlapping formal awards of benefits under supposedly exclusive statutes. Even though, based on uncertainty, a plaintiff may bring two separate claims, and may in fact receive voluntary payments under one Act, the fact remains that the Jones Act and LHWCA are mutually exclusive, and legal consistency requires that, at some point, recovery under one Act bars a subsequent recovery under the other. Accordingly, I find the Fifth Circuit's well-reasoned analysis and policy concerns in the Sharp decision is the correct stance on this very significant issue.
I would like to briefly note the case of O'Brien v. New York . 176 The O'Brien plaintiff initially brought a Jones Act claim in state court. The state court determined that the plaintiff did not qualify as a seaman and dismissed the action. Subsequently, the plaintiff brought a longshore claim. 177 The federal court dismissed this claim on grounds of claim preclusion, or res judicata. 178 The court first noted that a federal court must accord the same preclusive effect to a state court judgment as that judgment would receive in a subsequent state proceeding. 179 Next, the court noted that under New York law, the doctrine of res judicata precludes a party from re-litigating a claim decided in an earlier action, or which the party could have raised in the early proceeding. 180 The court then concluded that the plaintiff could have included a LHWCA claim as an alternative ground of relief
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in the initial action, but did not. 181 Therefore, because plaintiff was precluded under res judicata from bringing the LHWCA claim in a subsequent state action, he was likewise precluded from federal relief. 182
Maritime counsel must carefully analyze their situation to determine the best strategy for their clients. For example, an employer may prefer to pay LHWCA benefits. Therefore, if a claimant files a LHWCA claim, the employer should controvert the claim and move for a formal hearing where the issue of jurisdiction is fully litigated. This strategy can serve to close the door on a possible subsequent Jones Act suit. Additionally, before bringing a Jones Act claim, a plaintiff must carefully analyze both the vessel and whether it is in navigation,' together with a detailed analysis of the employee's job, responsibilities and risks. Finally, if the parties are submitting a LHWCA settlement agreement, the agreement should explicitly state that the claimant is a covered employee under the LHWCA. In all actions, however, the parties should proceed with an eye towards the precedential effect of possible decisions, and how they could play out in any number of factual scenarios.
2. The Future Classification of Floating Casinos
Next I would like to discuss floating casinos. As I mentioned earlier, the advent of floating
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casinos is creating many issues for employees, employers and insurance companies. One commentator has noted that "[h]idden from the neon lights and the excitement of the gaming tables, lawyers representing casino owners in the booming business of river boat and dockside gambling are spinning their own legal roulette wheel." 183 Increased proliferation of floating casinos and insurance issues is causing some casino owners to buy increased levels of insurance in anticipation of the possibility for higher jury awards in Jones Act claims.
Added to this business boom is the current state of the law. Under Pavone a casino's status will depend on whether or not it is permanently moored. Further, under the Papai reading of the fleet doctrine, the concept of vessels is limited to a group with the same owner or controller. Papai could help owners of floating casinos avoid costly negligence law suits by dealers, waitresses and other workers who are injured while working aboard docked vessels. For example, owners of river boat casinos may start to lease their workers, "fostering an already growing trend to lease maritime workers." 184
The intersection of these various areas can be fully appreciated through the posturing of a simple question of: How do you analyze a Blackjack dealer who is injured at work?
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First, based on Wilander , the dealer would meet the first prong of the seaman status test because he or she contribute to the vessel's mission, which is gambling. However, the next issue is whether the casino leaves the dock. If it does, then the dealer would be exposed to the perils of the sea. If not, then this situation would be analogous to Pavone , where the plaintiff was found not to be a seaman. Finally, if the casino leased the dealer who worked on various vessels not owned or operated by the same organization, then he or she would not qualify as seaman.
Therefore, as you can see, a number of factual situations create the mosaic of potential coverage under the Jones Act in these situations. Further case law must develop, however, for now if you are injured while working on a floating casino, most courts would find you a Jones Act seaman and not a LHWCA claimant. Therefore, counsel must be careful to look at the vessel's characteristics together with the employee's current duties to determine if they are sea-based or land-based.
3. Unpaid volunteers treated like seamen
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The case of Boy Scouts of America v. Graham , 185 involved a father who volunteered as a chaperone/trainer for a group of "Sea Scouts" on a ten-day recreational voyage. 186 The plaintiff paid the required registration fee and expenses for the trip. 187 On the third day, the plaintiff suffered quadriplegic injuries as a result of diving into shallow water in order to carry a mooring line to shore. 188
Following the injury, the plaintiff filed a negligence action against the skipper of the group, and later asked for leave to amend to add a claim under the Jones Act asserting that the vessel was unseaworthy and improperly manned. 189 The owner of the vessel filed for exoneration from, or limitation of, liability. The United States District Court for the Northern District of California granted the defendant's motion for summary judgement, finding that the plaintiff "failed to satisfy his burden of showing that he had more or less permanent status in an employment related position.'" 190
The Ninth Circuit, however, reversed stating that the seaman status issue should be left to
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the jury. 191 The Ninth Circuit held that there was a genuine issue of material fact as to whether plaintiff had a substantial connection to the vessel. 192 In so doing, the Court noted that whether or not the injured party was being compensated (supplied a wage) for the services is not determinative of seaman status. 193 In discussing the Graham decision, one commentator noted that the Ninth Circuit's poor analysis "side stepped the temporal requirement of the Chandris test, as it explained that the duration of time plaintiff was aboard the vessel was not necessarily relevant to the issue of seaman status. Instead, the court focused on a status based inquiry and stressed that a jury may grant seaman status if plaintiff was a member of the ships's company.'" 194
In Hardesty v. Rossi , 195 the United States District Court of the District of Maryland reached a different result. Hardesty involved an unpaid volunteer who was injured by falling on a loose curb on a municipal pier following a sailing race. 196 The Hardesty court held that the plaintiff failed to satisfy both prongs of the Chandris test and therefore did not avail herself of the remedy under the
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Jones Act. 197 Specifically, the court noted that the plaintiff failed to establish a substantial connection to the vessel in terms of duration and nature, noting plaintiff "clearly spent less than 30 percent of her time in the service of [defendant's] vessel." 198 Other decisions have rejected analogous claims by applying similar reasoning. 199
After analyzing this split among authority, I believe the Hardesty Court properly performed the inquiry under the Chandris test, especially in light of Papai . I also find that decision more in align with the general policy behind the Jones Act. As Judge Goodwin, the lone dissenter in Graham , noted, "I do not believe Congress intended by the Jones Act to create access to insurance for catastrophic injuries suffered by hobby sailors who, from time to time, venture onto navigable waters without pay, for their own benefit, or, for the benefit of others they choose as objects of their bounty and good will." 200 By focusing on the substantial-employment connection of the Chandris test, I believe most courts would conclude that hobby sailors and unpaid volunteers could not qualify as seamen under the Jones Act.
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III. JONES ACT & STATE WORKERS' COMPENSATION
At this time, I would like to briefly discuss the inter-relationship of the Jones Act and state workers' compensation laws. Essentially, they too are mutually exclusive. Therefore, whenever a Jones Act seaman is involved, any state compensation claim arising out of the same accident will be barred. 201
For example, in Southern Pacific Co. v. Jensen , 202 the Supreme Court held that a state cannot constitutionally provide workers' compensation benefits to an employee working on navigable waters and, therefore, within admiralty jurisdiction. 203 Accordingly, the remedies provided by the Jones Act for seamen are exclusive of state workers' compensation statutes. 204 Therefore, a seaman who is injured while working on a vessel in maritime waters is ineligible to file a claim under a state workers' compensation statute.
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A few years later, in Lindgren v. United States , 205 the Supreme Court considered whether the Jones Act precluded a course of action brought under a state's wrongful death statute by the personal representative of a seaman. The Court noted that prior to the enactment of the Jones Act, it had permitted state wrongful death acts to apply "only because Congress had not legislated on the subject." 206 The Lindgren Court, however, then held that due to Congress's subsequent legislative action in passing the Jones Act, a claimant could not sue under the state statute and was limited to an action under the Jones Act. 207 The Court stated:
- [W]e conclude that the [Jones Act] adopted by Congress in the exercise of its paramount authority in reference to the maritime law and incorporating in that law the provisions of the Federal Employers' Liability Act establishes as a modification of the prior maritime law a rule of general application in reference to the liability of the owners of vessels for injuries to seamen extending territorially as far as Congress can make it go; . . . and that, as it covers the entire field of liability for injuries to seamen, it is paramount and exclusive, and supersedes the operation of all state statutes dealing with that subject. 208
This rule, that state causes of action are not able to intrude upon the Jones Act, is well ingrained in state case law. 209 For example, in Indiana & Michigan Electric Co. v. Workers'
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Compensation Comm'r , 210 the Supreme Court of Appeals of West Virginia reversed the decision of the Workers' Compensation Commissioner which held that an employee was entitled to pursue an occupational hearing loss claim under the West Virginia Workers' Compensation Act, after the employee was ruled a "seaman" under the Jones Act. 211 The Indiana Court, relying upon Lindgren , concluded that "[w]here seamen are involved, the general rule appears to be that state causes of action are not able to intrude on the Jones Act." 212
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Jones Act proceeding to determine whether the plaintiff is or is not a "seaman." 213
IV. LHWCA & STATE WORKERS' COMPENSATION PROGRAMS
The relationship between the LHWCA and various state workers' compensation schemes has provided a rich legislative and judicial history. The relationship between these statutes has been especially important since the 1972 amendments, wherein Congress extended LHWCA coverage landward, beyond the traditional navigable waters to piers and other adjoining areas "customarily used by an employer in loading, unloading, dismantling or building a vessel." 214 Additionally, Congress, in a 1984 Amendment, created an exclusion for certain employees provided such "individuals . . . are subject to coverage under a State workers' compensation law." 215 Further, state
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legislatures have recently been active in excluding individuals entitled to federal maritime recovery from the definition of "employee." 216
A. The History and Development of Concurrent Jurisdiction
Any understanding of the current relationship between the LHWCA and various state workers' compensation laws necessarily involves a brief historical perspective. Unfortunately, like most areas of maritime jurisprudence, the history and laws have been muddied and, in this particular area, a "twilight zone" jurisprudence has emerged. 217 Nevertheless, I hope to provide a brief explanation to bring this area of law back down to earth.
1. Injuries Upon Navigable Waters The Jensen Line
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In Southern Pacific Co. v. Jensen , 218 the Supreme Court held that state workers' compensation acts did not have jurisdiction seaward of the water's edge, thus establishing the Jensen line. The Supreme Court held that federal courts had exclusive jurisdiction in all admiralty and maritime cases, and that state legislation "could not interfere with the proper harmony and uniformity of general maritime law." 219 The Jensen Court specifically held that the State of New York could not constitutionally provide a workers' compensation remedy to the survivors of a worker killed on the gangway between a ship and shore while unloading lumber from a ship. The Court noted that a state law may be found unconstitutional "if it contravenes the essential purpose expressed by an act of Congress or works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations." 220 The Jensen Court found that the New York statute undermined the uniformity of the maritime law, noting that if this law was upheld, every other state would be permitted to impose similar obligations on maritime employers within their jurisdiction, subjecting such employers to a myriad of burdensome regulations. 221
Thus, following Jensen , an injury seaward of the water's edge was under the exclusive jurisdiction of federal maritime law, while injures landward were in the exclusive province of state jurisdiction. The Supreme Court began to narrow the Jensen rule even prior to the enactment of the
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LHWCA by recognizing a "maritime but local" exception where state workers' compensation laws could cover injuries occurring past the water's edge. 222
Prior to the enactment of the LHWCA, the Supreme Court began to chip away at the harsh results stemming from the Jensen line. In Western Fuel v. Garcia, 223 the Supreme Court indicated that state law might apply to injuries seaward of the Jensen line so long as they were maritime and local in character, and as long as they did not work "material prejudice to the characteristic features of the general maritime law, nor interfere with the proper harmony and uniformity of that law in its international and interstate relationships." 224 One month later, in Grant Smith-Porter Ship Co. v. Rohde , 225 the Court sustained the validity of a state statute as applied to an injured employee engaged in "maritime but local" employment. The Third Circuit has recently explained the concept behind maritime and local as follows:
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- [i]f the employment of an injured worker was determined to have no direct relation' to the navigation or commerce, and the application of local law [would] not materially affect' the uniformity of maritime law, then the employment would be characterized as maritime but local' and the State could provide a compensation remedy. 226
To remedy this situation the Supreme Court recognized a "twilight zone" in which the employees must have their rights determined on a case by case basis under either federal or state
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law. 230 The case, Davis v. Department of Labor , involved a widow's claim based upon her spouse's work-related death. Claimant's spouse was a steel worker who had drowned in navigable waters after falling off a barge while helping to load the barge with pieces of steel from a drawbridge that was being dismantled. The Washington statute allowed compensation for employees if it could be made within the permissible limits of the state's jurisdiction, which the Washington Supreme Court held that it was not. The Supreme Court reversed, because of a new concept it articulated, the "twilight zone." The Court acknowledged that the uncertainty engendered by the maritime but local doctrine "defeat[ed] the purpose of the federal act, which seeks to give to these hard-working men, engaged in a somewhat hazardous employment, the justice involved in the modern principle of compensation, and the state Acts such as the one before us, which aims at sure and certain relief for workmen." 231 The Court noted that such injured employees occupy "that shadowy area within which, at some undefined and undefinable point, state laws can validly provide compensation." 232 The Court concluded that when a case fell within this twilight zone, the first tribunal, either state or federal, to which the claimant applied should presume it had jurisdiction in the absence of substantial evidence to the contrary.
b. Emergence of Concurrent Jurisdiction
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Twenty years after Davis , in Calbeck v. Travelers Insurance, Co. , 233 the Supreme Court finally held that the LHWCA was applicable to all injuries on navigable waters, regardless of whether they were "maritime but local" and irrespective of whether state compensation schemes could also constitutionally apply. 234 Thus, Calbeck was the first major concurrent jurisdiction case, emphasizing that maritime employees engaged in work defined as "maritime and local" could select the coverage most beneficial to them. 235
The Supreme Court succinctly summarized the pre-1972 landscape as to jurisdiction as follows:
- Before 1972 . . . marine-related injuries fell within one of three jurisdictional spheres as they moved landward. At the furthest extreme, Jensen commanded that nonlocal maritime injuries fall under the LHWCA. "Maritime but local" injuries "upon the navigable waters of the United States," . . . could be compensated under the LHWCA or under state law. And injuries suffered beyond navigable waters--albeit within the range of federal admiralty jurisdiction--were remediable only under state law. 236
2. Injuries Landward of the Jensen Line
As previously noted, traditionally, injuries occurring landward of the water's edge were
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covered exclusively by state workers' compensation laws. 237 Following Jensen , the Supreme Court "made clear that its concern for the uniformity of the maritime law abruptly ended at the water's edge." 238 For example, in Industrial Comm. v. Norenholt Co. , 239 the Court noted that Jensen did not preclude a state award of compensation to a longshoreman who was killed on a dock while unloading a vessel lying in navigable waters. The Norenholt Court stated:
- When an employee, working on board a vessel in navigable waters, sustains personal injuries there, and seeks damages from the employer, the applicable legal principles are very different from those which would control if he had been injured on land while unloading the vessel. In the former situation the liability of the employer must be determined under the maritime law; in the latter, no general maritime law prescribes the liability, and the local law has always been applied. The liability of the employer for damages on account of injuries received on shipboard by an employee under a maritime contract is a matter within the admiralty jurisdiction; but not so when the accident occurs on land. 240
In 1972, however, Congress amended the LHWCA to cover land-based injuries. 241 The issue then arose as to whether the land-based LHWCA coverage was exclusive of, or concurrent with, state coverage.
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The Supreme Court answered this question in the seminal decision, Sun Ship Inc. v. Pennsylvania . 242 Sun Ship involved five employees who were injured, after 1972, while engaged in shipbuilding or ship repair activity. 243 The employees sought benefits under the more generous Pennsylvania Workmens' Compensation Act. 244 The Employer argued, however, that the LHWCA was the employees' exclusive remedy. 245
The Supreme Court held that the injury could be compensated under either the state or federal statutory scheme and that the LHWCA was not the employees' exclusive remedy. 246 The Court found concurrent jurisdiction landward of the Jensen line, noting "the 1972 extension of federal jurisdiction supplements, rather than supplants, state compensation law." 247 In the Sun Ship decision, the Court noted that prior case law--especially Davis and Calbeck-- was not altered by the Congressional action. 248 Further, the Court found the application of concurrent jurisdiction consistent with the policy behind the LHWCA amendments which was to "upgrade the benefits." 249 Therefore, as one treatise has noted: "No matter how directly related a longshore worker's tasks are
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to maritime commerce, and no matter how burdensome a state insurance scheme is to the employer, a state can require that a maritime employer pay workers' compensation for an injury suffered on land." 250
Thus, following Sun Ship , and through today, the current status of concurrent jurisdiction concerning the LHWCA and state laws resembles the following chart:
Seaward Jensen Line Landward
------------------------------------------------------------------
Maritime & Non-Local |
|
LHWCA |
only | LHWCA
---------------------------------|
Maritime & Local | or
|
LHWCA | STATE ACTS
or |
STATE ACTS |
-------------------------------------------------------------------
Additionally, in light of the §§ 2(3) and 3 exclusions to LHWCA coverage, the current scheme has been summarized as follows:
- State or Federal Coverage
- 1. The maritime worker not excluded in Sections 2(3) and 3 of the Longshore Act, injured landward of the Jensen' line on a maritime situs'.
- 2. The maritime worker not excluded in Sections 2(3) and 3 of the Longshore Act, injured seaward of the Jensen' line if his work was maritime but local.
136 Rissetto v. Plumbers & Steamfitters Local 343 , 94 F.3d 597 (9th Cir. 1996); Yanez v. United States , 989 F.2d 323, 326 (9th Cir. 1993); Russell v. Rolfs , 893 F.2d 1033, 1037 (9th Cir. 1990), cert. denied , 501 U.S. 1260 (1991).
137 Sedlack v. Braswell Servs. Group, Inc. , 134 F.3d 219, 224 (4th Cir. 1998) (internal citations omitted).
138 893 F.2d 1033 (9th Cir. 1990), cert. denied , 501 U.S. 1260 (1991).
139 Id. at 1037 (quoting Religious Technology Center v. Scott , 869 F.2d 1306, 1311 (9th Cir. 1989)) (internal citations omitted).
140 Mullner v. Mars, Inc. , 714 F. Supp. 351, 357 (N.D. Ill. 1989) (quoting Department of Transp. v. Coe , 112 Ill. App.3d 506, 510, 445 N.E.2d 506 (4th Dist. 1983)); see also Rissetto v. Plumbers & Steamfitters Local 343 , 94 F.3d 597, 604 (9th Cir. 1996) ("[w]e are not aware of any case refusing to apply the doctrine because the prior proceeding was administrative rather than judicial"); Chaveriat v. Williams Pipe Line Co ., 11 F.3d 1420, 1427 (7th Cir. 1993) ("Though called judicial estoppel, the doctrine has been applied, rightly in our view, to proceedings in which a party to an administrative proceeding obtains a favorable order that he seeks to repudiate in a subsequent judicial proceeding") (emphasis in original).
141 33 U.S.C. § 913(d).
142 Wilson v. Zapata Off-Shore Co. , 939 F.2d 260, 266-68 (5th Cir. 1991).
143 939 F.2d 260 (5th Cir. 1991).
144 Id. at 267-68 (citing Johnson v. Railway Express Agency, Inc. , 421 U.S. 454 (1975)).
145 Id. The Wilson court concluded, "At some point, the right to be free of stale claims comes to prevail over the right to prosecute them." Id.
146 Ferris v. Vecco, Inc. , 896 F. Supp. 966 (D. Alaska 1995); see also Filing Longshore Claim Does Not Toll Jones Act Limitation Period , 14 Longshore Newsletter 35 (1996).
147 502 U.S. 81 (1991).
148 Id. at 84-85.
149 Id.
150 Id. at 91.
151 Id. at 91-92 (citations omitted); see also Foster v. Davison Sand & Gravel Co. , 31 BRBS 191 (1997).
152 See, e.g. , Sharp v. Johnson Bros. Corp ., 973 F.2d 423 (5th Cir. 1992), cert. denied , 508 U.S. 907 (1993); Anders v. Ormet Corp. , 874 F. Supp. 738 (M.D. La. 1994); Welch v. Elevating Boats , 516 F. Supp. 1245 (E.D. La. 1981). But see Papai v. Harbor Tug & Barge Co. , 67 F.3d 203 (9th Cir. 1995), rev'd on other grounds 117 S. Ct. 1535 (1997).
153 See Sharp v. Johnson Bros. Corp. , 973 F.2d 423, 426 (5th Cir. 1992) ("We have treated [§ 8(i) settlements] as a formal award'"); see also Newkirk v. Keyes Offshore, Inc. , 782 F.2d 499, 501-02 (5th Cir. 1986).
154 Figueroa v. Campbell Indust. , 45 F.3d 311 (9th Cir. 1994).
155 866 F. Supp. 26 (D. e.), vacated , No. Civ. 94-45-P-H, 1994 WL 588573 (D. Me. Sept. 27 1994).
156 Id. at 38.
157 973 F.2d 423 (5th Cir. 1992), cert. denied , 508 U.S. 907 (1993).
158 Id. at 424.
159 Id.
160 Id. at 425.
161 Id. at 426 (citing Newkirk v. Keyes Offshore, Inc. , 782 F.2d 499, 501-02 (5th Cir. 1986); Rodriguez v. Compass Shipping Co. , 617 F.2d 955, 958-59 (2d Cir. 1980), aff'd , 451 U.S. 596 (1981)).
162 Id. at 426.
163 Id. at 427.
164 Id. at 426-27.
165 135 F.2d 842 (2d Cir. 1943).
166 866 F. Supp. 36, 27-29 (D. Me.), vacated , No. Civ. 94-45-P-H, 1994 WL 58873 (D. Me. Sept. 27, 1994).
167 45 F.3d 311 (9th Cir. 1995).
168 Id. at 315-16.
169 Id. at 315.
170 67 F.3d 203 (9th Cir. 1995), rev'd on other ground 117 S. Ct. 1535 (1997).
171 As noted, the Supreme Court reversed on other grounds, and failed to address this specific issue.
172 94 F.3d 597 (9th Cir. 1996).
173 See Gilmore & Black, The Law of Admiralty 435 (1975) ("on grounds of policy the argument can be plausibly advanced that the injured worker should be entitled to try for his Jones Act recovery no matter how properly his status as a non-seaman may have been adjudicated in a contested compensation proceeding"). It has been noted, however, that this treatise was published in 1975, and relied primarily upon pre-1972 amendments and "[thus, Gilmore & Black's lament that pursuit of a Jones Act recovery by an injured longshore worker seemed just in the days when the maximum longshore weekly benefits was $70.00 per week." This, however, is no longer the case. Administrative Determination of Longshore Status No Bar to Subsequent Jones Act Recovery , 13 Longshore Newsletter 140 (1996).
174 9 Larson, The Law of Workmen's Compensation § 90.51(c) (arguing that an administrative approval of benefits should constitute res judicata where the eligibility issue is actually litigated) (emphasis added).
175 See Hillsman, supra note 9, at 22.
176 822 F. Supp. 943 (E.D.N.Y. 1993).
177 Id. at 944.
178 Id. at 947.
179 Id. at 946-47.
180 Id. at 947.
181 Id.
182 Id.
183 Gary Taylor, Murky Liability Status Sets Waterfront Gambling Adrift , 17 Nat'l L.J. B1 (1994).
184 Dave Lenckus, High Court Clarifies Marine Injury Claims , Bus. Ins., May 26, 1997 at 3.
185 Boy Scouts of America v. Graham , 86 F.3d 861, 866 (9th Cir. 1996).
186 Id. at 862-63.
187 Id. at 683.
188 Id.
189 Id.
190 Edward J. Powers, Seamen's Injuries , 21 Tul. Mar. L.J. 529, 531 (1997).
191 Boy Scouts of America v. Graham , 86 F.3d 861, 865-6 (9th Cir. 1996).
192 Id.
193 Id.
194 See Powers, supra note 190, at 532; see also Perez v. Keystone Shipping Co. , 1997 WL 753412 (9th Cir. Nov. 28, 1997) (following Graham decision); Petition of Read , 224 F. Supp. 241 (D.C. Fla. 1963) (holding that volunteer in a yacht race for personal pleasure, who was promised no wage or salary, was a seaman under Jones Act).
195 Civ. No. JFM-94-2320, 1995 WL 688416 (D. Md. Aug. 15, 1995).
196 Id. at *1.
197 Id. at *4.
198 Id.
199 Heath v. American Sail Training Ass'n , 644 F. Supp. 1459 (D.R.I. 1986) (holding that unpaid, temporary volunteers of sail training program could not bring Jones Act action against organizer); Complaint of Falkiner , 716 F. Supp. 895 (E.D. Ca. 1988 (volunteer cannoneers during mock pirate battle, were not Jones Act seaman).
200 Boy Scouts of America v. Graham , 86 F.3d 861, 866 (9th Cir. 1996) (J. Goodwin, dissenting).
201 See, Dupre v. Otis Eng'g Corp ., 641 F.2d 229 (5th Cir. 1981); Bearden v. Leon C. Breaux Towing Co. , 365 So. 2d 1192 (La. App. 3d Cir. 1978), cert. denied , 366 So. 2d 915 (1979).
202 244 U.S. 205 (1917).
203 Id. at 216-18; see also Norther Coal & Dock Co. v. Strand , 278 U.S. 142, 147 (1928); Hill v. Workmen's Compensation Appeal Bd. , 703 A.2d 74, 78-80 (Pa. Commw. 1997).
204 Indiana & Michigan Electric Co. v. Workers' Compensation Comm'r , 403 S.E.2d 416, 419 (W. Va. 1991); see also generally Door v. Maine Maritime Academy , 670 A.2d 930 (Me. 1996) (holding that an engineer who was injured while working on a research vessel at sea did not fall within the exclusive jurisdiction of the Jones Act, and consequently would be entitled to benefits under the states' compensation law, where the engineer only spent 25% of his time on board the vessel and therefore did not meet the definition of "seaman" under the Jones Act).
205 281 U.S. 38 (1930).
206 Id. at 44.
207 Id. at 46-47; see also Gillespie v. United States Steel Corp ., 379 U.S. 148, 154-55 (1964) (reaffirming Lindgren decision); Northern Coal & Dock Co. v. Strand , 278 U.S. 142, 145 (1928) (holding that state compensation law does not apply to seamen).
208 Id. at 46-47.
209 See Anderson v. Alaska Packers Ass'n , 635 P.2d 1182, 1184 (Alaska 1981); De Court v. Beckman Instruments, Inc., 32 Cal. App. 3d 628, 633, 108 Cal. Rptr. 109, 112-13 (1973); Bearden v. Leon C. Breaux Towing Co. , 365 So.2d 1192 (La. App. 1978), writ denied, 366 So.2d 915 (1979); Garrisey v. Westshore Marina Assocs. , 2 Wash.App. 718, 469 P.2d 590 (1970); Indiana & Michigan Electric Co. v. Workers' Compensation Comm'r , 403 S.E.2d 416, 419 (W. Va. 1991); see also Miles v. Apex Marine Corp. , 498 U.S. 19, 27-30(1990) (discussing the interplay among the Jones Act, the Death on the High Seas Act, and the general maritime tort law).
210 403 S.E.2d 416 (W. Va. 1991).
211 Id. at 417.
212 Id. at 419; see also Meaige v. Hartley Marine Corp. , 925 F.2d 700, 701-03 (4th Cir.) (holding that West Virginia tort of retaliatory or wrongful discharge could not be utilized by a seaman against his employer because of the "exclusive nature of federal admiralty law"), cert. denied , 501 U.S. 1217 (1991); Thibodaux v. Atlantic Richfield Co. , 580 F.2d 841, 847 (5th Cir. 1978) ("[A]n exclusive remedy provision in a state workmen's compensation law cannot be applied when it will conflict with maritime policy and undermine substantive rights afforded by federal maritime law."), cert. denied , 442 U.S. 909 (1979).
213 Rohrbacker v. Jackson & Jackson, Inc. , Civ. A. No. 88-4138, 1991 WL 81726 (E.D. La. May 6, 1991); Hill v. Workmen's Compensation Appeal Bd. , 703 A.2d 74, 78-80 (Pa. Commw. 1997).
214 See 33 U.S.C. § 903(a). "Congress was aware that modern long shoring techniques involved an increased amount of work on land, and believed that the availability of compensation should not turn upon the fortuitous circumstance of whether the injury occurred on land or over water.'" Peter v. Hess Oil Virgin Islands Corp. , 903 F.2d 935, 948 (3d Cir. 1990) (quoting S. Rep. No. 92-1125 at 13; H.R. Rep. No. 92-1441 at 10-11, 1972 U.S.C.C.A.N. 4708), cert. denied , 498 U.S. 1067 (1991)).
215 33 U.S.C. § 902 (3) (1984). I pause to note that the exclusion only applies to injuries occurring after September 28, 1984, the date of enactment of the 1984 Amendment.
216 See infra notes 255-257 and accompanying text (discussing recent state legislative action).
217 See David v. Department of Labor & Indus. of Wash. , 317 U.S. 249 (1942) (introducing "twilight zone" concept of finding state jurisdiction for injuries upon navigable waters).
218 244 U.S. 205 (1927).
219 Id. at 216.
220 Id.
221 Id. at 217-18.
222 Thomas v. Washington Gas Light Co. , 448 U.S. 261, 280 (1980); Landry v. Carlson Mooring Serv. , 643 F.2d 1080, 1085 (5th Cir.), cert. denied , 454 U.S. 1123 (1981); Jackson v. American Mut. Liab. Ins. Co. , 584 So. 2d 348, 350 (La. Ct. App. 3d. Cir) (decision based on pre-1984 law), writ denied , 589 So. 2d 1075 (La. 1991); Johnson v. Texas Employers Ins. Ass'n , 558 S.W.2d 47 (Tex. Civ. App. Beaumont 1977), writ ref'd n.r.e. (Apr. 12, 1978).
223 257 U.S. 233 (1921).
224 Id. at 216.
225 257 U.S. 469 (1922).
226 Peters v. Hess Oil Virgin Islands Corp. , 903 F.2d 935, 944 (3d Cir. 1990) (citations omitted).
227 33 U.S.C. § 903.
228 Peters v. Hess Oil Virgin Islands Corp. , 903 F.2d 935, 944 (3d Cir. 1990) (quoting G. Gilmore & B. Black, The Law of Admiralty 419-20 (2d ed. 1975)), cert. denied , 498 U.S. 1067 (1991).
229 Allsouth Stevedoring Co. v. Wilson , 220 Ga. App. 205, 207, 469 S.E.2d 348, 350 (1996), cert. denied, (May 3, 1996).
230 Davis v. Department of Labor , 317 U.S. 249, 256 (1942).
231 Id. at 254 (quotations omitted).
232 Id. at 253.
233 370 U.S. 114 (1962).
234 Id. at 126-27; see also Sun Ship, Inc. v. Pennsylvania , 447 U.S. 715, 718 (1980) (discussing Calbeck holding).
235 Calbeck v. Travelers Ins., Co. , 370 U.S. 114, 126-27 (1962).
236 Sun Ship, Inc. v. Pennsylvania , 447 U.S. 715, 719 (1980).
237 Southern Pacific Co. v. Jensen , 244 U.S. 205 (1917).
238 Peter v. Hess Oil Virgin Islands Corp. , 903 F.2d 935, 943 (3d Cir. 1990), cert. denied , 498 U.S. 1067 (1991).
239 259 U.S. 263 (1922).
240 Id. at 271-72.
241 Pub. L. 92-576, 86 Stat. 1251, amending 33 U.S.C. § 903(a).
242 447 U.S. 715 (1980).
243 Id. at 716.
244 Id.
245 Id.
246 Id. at 722.
247 Id. at 720.
248 Id. at 719-22.
249 Id. at 723 (quoting the Senate reporter).
250 Mod. Workers Compensation § 104:20 (1997) (citing Peter v. Hess Oil Virgin Islands, Corp., 903 F.2d 935 (3d Cir. 1990), cert. denied , 498 U.S. 1067 (1991)).