# Amicus Curiae Brief — Southwest Marine, Inc. v. Gizoni

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1991
- **Citation:** 502 U.S. 81

## Text

Supreme Court,
(4) FILED
No. 90-584 + MAY 15 199}

OFFICE OF THE CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1990

SOUTHWEST MARINE, INC., PETITIONER
Vv.

BYRON GIZONI

ON WRIT OF CERTIORARI! TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT

KENNETH W. STARR
Solicitor General

DAVID L. SHAPIRO
Deputy Solicitor General

ROBERT A. LONG, JR. :
Assistant to the Solicitor General
Department of Justice
ROBERT P. DAVIS Washington, D.C. 20530 ;
Solicitor of Labor (202) 514-2217 )
ALLEN H. FELDMAN
Associate Solicitor

KERRY L. ADAMS
Vounsel for Appellate Litigation

DEBORAH GREENFIELD
Attorney
Department of Labor
Washington, D.C. 20210

BEST AVAILABLE COPY 3

QUESTION PRESENTED

Whether a maritime employee whose occupation is
one of those enumerated in the Longshore and Har-
bor Workers’ Compensation Act may be a seaman
within the meaning of the Jones Act.

TABLE OF CONTENTS

Interest of the United States 3
Summary of argument sasbdaiciaiets eR

Argument:
I. Jones Act seamen are expressly excluded from

IT.

IIT.

coverage under the LHWCA ane _
A. The LHWCA’s definition of “employee,” as
construed in Wilander, excludes Jones Act
i EE i
B. Petitioner’s exclusive focus on job title con-
flicts with the language of the LHWCA___
C. The FELA cases do not support petitioner's
A eae 01D
Neither the legislative history of the LHWCA,
nor this Court’s prior decisions, suggest that
Congress intended to displace the traditional
remedies available to seamen oR ms
A. The legislative history confirms that Con-
gress did not iniend to deprive seamen of
their traditional remedies for personal

Natalie are cteatalhcetnnnsapenanhasasaannesanaccces
1. The original LHWCA did not apply to
te

2. The 1972 amendments did not restrict
the remedies available to seamen

B. Petitioner’s approach is inconsistent with
the remedial purposes of the LHWCA and
the Jones Act Ean

C. This Court’s decisions construing the 1972
amendments do not support petitioner’s
position : oa

Petitioner’s policy-based arguments are unper-

suasive m .

A. The court of appeals’ decision will not lead
to double recoveries eo

(Itt)

12

18

20

21

22

IV

Argument—Continued: Page
B. Under established principles of issue pre-
clusion, only an adjudication under the
LHWCA that an employee is not a crew
member precludes litigation of a Jones Act
Re See eee ee Pe, PO 23
C. Petitioner’s “primary jurisdiction” argu-
ment is without merit ..................................... 25
Conclusion _... saabideeideiitioadaDiad aideaieindieaierlabdeneienieiieitialthaaes 27
TABLE OF AUTHORITIES
Cases:
Ardoin Vv. J. Ray McDermott & Co., 641 F.2d 277
ere ee 11
Avasthi v. United States, 608 F.2d 1059 (Sth Cir
LS ae ARE AA aR ee ee ee 25
Barrett v. Chevron, US.A., Inc., 781 F.2d 1067
SS I a a 10
Bennett v. Perini Corp.. 510 F.2d 114 (1st Cir.
ee NTE eR eT 11, 20
Boatel, Inc. Vv. Delamore, 379 F.2d 850 (5th Cir.
EE Ee eM ES, 16, 23, 24, 25
Boyles v. Humble Oil & Refining Co., 209 F. Supp.
857 (E.D. La. 1962) At
Brennan Vv. Western Union Tel. Co., 561 F.2d 477
Sd Cir. 1977), cert. denied, 1°24 U.S. 196%
EEN ee eC OT ee 14
Calbeck v. Travelers Ins. Co.. 270 U.S. 114
SUITE dnetisisnnddaemacmusadnmaieninicenimesanemsasmenianeaiiise. 16
Carumbo v. Cape Cod S.S. Co., 2 F.2d 991 (Ist
Cir. 1941). eee 19
Chanvin V. Sanford Offshore Salvage. due. ROR
F.2d 735 (5th Cir. 1989) 12
Giessnetie & Ohio Ry. v. Schwath, 110 S. Ct.
se! (2980) ...................................... 13,14
Chesser Vv. General Dredging Co. 150 F. Supp.
592 (S.D. Fla. 1957) aa 24
Cook v. Belden Concrete Prods., Ine.. 172 F.2d
999 (5th Cir.), cert. denied, 111 US seer
(1973) 11

Vv
Cases—Continued :
DiPippa vy. United States, 687 F.2d 14 (3d Cir.
pe eT ce ae MR Ren oe De en em

Director, OWCP vy. Perini North River Associates,

a! Ee 2 eae 16, 17, 21

Epstein v. Secretary, United States Dep't of

Treasury, 739 F.2d 274 (7th Cir. 1984) 14
Estate of Wenzel v. Seaward Marine Services, Inc.,

708 F.2d 1326 (9th Cir. 1983) ............................ 5
Fontenot v. AWI, Inc., 923 F.2d 1127 (5th Cir.

FER Ne a ae eee 24
Forsberg Vv. Pacific N.W. Bell Tel. Co., 840 F.2d

ee 14
Fountain Vv. Metcalf, Zima & Co., 925 F.2d 1398 :

I OI i 14
Gianfala Vv. Texas Co., 350 US. 879, rev’g 222 F.2d

Ae I 11
Grijalva Vv. United States, 781 F.2d 472 (5th

Cir.), cert. denied, 179 U.S. 822 (1986) 26
Heilman Vv. United States, 721 F.2d 1104 (3 sd Cir.

I cic ca haere ee, 26
Herb’s Welding, Ine. vy. Grey, 170 U.S. 4114

(1985) oe | Th
Hodason Vv. The Klages Coal & tes Co., 125 F.2d

377 (6th Cir.), cert. denied, 412 U.S. 973

NS Arron NTL a ae TL 14
Johnson Vv. John F. Beasley Constr. Co., 712 F.2d

1051 (7th Cir. 19%14), cert. denied, 169 U-S.

Er nnn Ae a ea eS 11
Kremer V. Chemical Constr. Corp., 156 U Ss. 161

RITES Len, Se ae ks, re 24
Lawrence V. Norfolk Dredging Co. 194 F. Supp.

481 (FE.D. Va. 1961) —. — 24
Legros V. Panther Services Group, Ine., 863 F.2d

345 (1988), reh’g en banc granted, 863 F.2d

355, appeal dismissed, 874 F.2d 954 (5th Cir.

1989) . adssenieaneienibanaieuaseahinmeabammssteiidcuidecdaadladicen 12
Leonard vy. Dirie Well Service & Supply, Ine.,

R28 F.2d 291 (Sth Cir. 1987) 12
Lindahl v. OPM, A70 U.S. 768 (1985) aah 26
McDermott Int'l, Ine. v. Wilander, 111 S. Ct. 807

| Pe F | fs Ff Fe

VI vil
Cases—Continued : Page
Morrison-Knudsen Constr. Co. v. Director, OWCP, Statutes, regulations and rule: Page
Re es I a 19 Age Discrimination in Employment Act of 1967,
Nacirema Operating Co. Vv. Johnson, 296 U.S. 212 29 U.S.C. G21 . . ae aT ee 14
REEL RET Aa ease eee re te oie oe os Seer et 17 Equal Pay Act of 1963, 29U.SC.206(4) . «14
Northeast Marine Terminal Co. v. Caputo, 432 Fair Labor Standards Act of 1938, 29 U.S.C. 201
eee IY CU i 16, 17, 18, 19, 20-21 et seq. ......... Sg ee 14

Norton Vv. Warner Co., 221 U.S. 565 (1944)...11, 16, 26
Offshore Co. vy. Robison, 266 F.2d 769 (5th Cir.

REE Se I a Nl is 10, 19
Oliver v. Ocean Drilling & Exploration Co., 222
F. Supp. 843 (W.D. La. 1965) ............................. 24
P.C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979)... 13, 16,
17, 29
Pe = R.R. v. O'Rourke, 3244 US. 334
EE ee ee ee ee aT Ne 14

Pi-zitolo v. Electro-Coal Transfer Corp., 812 F.2d
977 (5th Cir. 1987), cert. denied, 484 U.S.

EEE ee Seen 12
Producers Drilling Co. V. Gray, 361 F.2d 432

I, call 11
Robertson Vv. Donovan, 219 F. Supp. 5641 (ED.

Si UIE disiescanbbenintineiihisenhonemnkemeansntaummmetilatscmnebetets 24
Seas Shipping Co. V. Sieracki, 328 U.S. 8&5

I ci a emeieneineel 10, 20
Senko v. LaCrosse Dredaing Corp.. 352 U.S. 370

Re Se ae ae on ee ee TRIE 11
Sharp Vv. Wasau Ins. Co., 917 F.2d 885 (5th Cir.

1990) ....... Ne oe nn ae A A a DOE ee 23
Simms v. Vallew Line Co. . 709 F.2d 409 (5th

a cee 22, 24
South Chicago Coal & Dock Co. Vv. Bassett, 209

RR ee eae 26
Southern Pacific Co. v. Jensen, 244 U.S. 205

ES SEEN Le ER 16
Sun Ship, Inc. Vv. Pennsulvania, 117 U.S. 715

(1980) _....... sdiemnaieteiveds . _.-e+---M, 19, 22, 23
Thibodeaus ¥v. Torch, Ine. 858 F.2d 1018 (Sth

ESE Re eee Ne ane eee 12
Wilkes V. Mississippi River Sand & Grav el Co.,

202 F.2d 383 (6th Cir.), cert. denied, 246 U. S.

817 foretinny Ssamasinesiadecidaatiadiaiahiicemediandainiee ncaa daamenganadlabldde 24

Federal Employees c compensation Act, 5 U.S.C.
8101 et seq.:

EE, ee 8, 25

Ss IIIT x sccewiscccsniknsrussedmeunévesenenaccecescensunanne 26

5 U.S.C. 8145 _............... ae. 26
Federal Employees Liability Act, 45 USC, 51

RE a RE oe Ne ee a ;' ae

Federal Tort C laims Act, 28 U.S. C. 2671 et seq.. 25

Jones Act, 46 U.S.C. App. 688 aa

Longshore and Harbor Workers’ Compensation
Act, 33 U.S.C, 901 et seq.:

$§ 1-51, 33 U.S.C. 901-950... 1

§ 2(5), 33 U.S.C. 90°(2) 1, 2, 6, 9, 12, 13, 18

§ 203) (A)-(CH), 32 USC. 90203) (A)-CH) 13

§ 2(3) (B), 33 U.S.C. 90203) (B) .. eae 13

§ 2(3) (F), 33 U.S.C. 90213) (PF) ee 13

§ 2(3) (G), 33. U.S.C. 99203) (G) _ 6, 1, 13, 15

§3(a),33US.C.903(a) Seca 2

§ 3(e), 33 U.S.C. 90%(e) _......... 22

§ 5(a), 33 U.S.C. 905(a)..... tt 2,5, 15

§ 14(a),323 U.S.C. 914(a) . a,

§ 14(d), 33 U.S.C, 91444) . ee 4

§ 14¢h), 33 US.C. 9110h) : 4

$19(d),33 U.S.C. 919(d)_ . = — 26

§ 21(b),33 U.S.C. 921 (b) oo 26

§ 39,33 U.S.C.939 eS Se 1

Longshoremen’s and Harbor W ~ rs’ Compen-
ey = ch. 509, §2(3), 44 Stat. 1425 16
ern:

NE ee ae 1
Pt. 701:

Section JOLA01(7) Week Sareea 4

vill

Regulations and rule—Continued: Page
Pt. 702:

SETS EC 8 RENNER Sa te
es 2 dd ot :

8 ETE ae aT En me 11, 25

Miscellaneous:

G. Gilmore & C. Black, The Law of Admiralty
RR EE Te nO ns an ao 22
H.R. Rep. No. 1441, 92d Cong., 2d Sess. (1972)... 17
H.R. Rep. No. 570, 98th Cong., Ist Sess. Pt. 1
RE es Sancta a eae 18
4 A. Larson, Workmen's Compensation Law
IS RN Ls ainieinia i 22, 23-24
Longshoremen’s and Harbor Workers’ Compen-
sation Act Amendments of 1972: Hearings on
S. 2318, 8. 525, 8S. 1547 Before the Subeomm.
on Labor of the Senate Comm. on Labor and

Public Welfare, 92d Cong., 2d Sess. (1972)... 18
Restatement (Second) of Judgments (1982) 24
S. 1547, 92d Cong., Ist Sess. (1971) .......................... ,
S. Rep. No. 1125, 92d Cong., 2d Sess. (1972) 17, 19

Iu the Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-584
SOUTHWEST MARINE, INC., PETITIONER
v.
BYRON GIZONI

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

The Secretary of Labor administers the Longshore
and Harber Workers’ Compensation Act (LHWCA),
33 U.S.C, 901-950. See 33 U.S.C. 939. The Secre-
tary has delegated her responsibilities under the
LHWCA to the Director of the Office of Workers’
Compensation Programs (OWCP), who administers
the Act pursuant to regulations codified at 20 C.F.R.
Pts. 701-704. The Director is a party to and may
participate in any proceedings under the LHWCA.

This case presents the question whether an em-
ployee whose occupation is one of those enumerated
in Section 2(3) of the LHWCA, 33 U.S.C. 902(3),
may nevertheless be a “master or member of a crew

(1)

2

of any vessel” eligible for a remedy under the Jones
Act, 46 U.S.C. App. 688, rather than under the
LHWCA. Resolution of this issue will affect federal
policy concerning the scope of the LHWCA, as well
as administration of the Act by the Secretary of
Labor. The United States therefore has a substan-
tial interest in this case.

STATEMENT

1. The LHWCA is a workers’ compensation stat-
ute that applies to certain employees injured in the
course of maritime employment “upon the navigable
waters of the United States (including any adjoining
pier, wharf, dry dock, terminal, building way, ma-
rine railway, or other adjoining area customarily
used by an employer in loading, unloading, repairing,
dismantling, or building a vessel).” 33 U.S.C. 903
(a). Section 2(3) of the LHWCA defines an “em-
ployee” covered by the Act as

any person engaged in maritime employment,
including any longshoreman or other person en-
gaged in longshoring operations, and any
harbor-worker including a ship repairman, ship-
builder, and ship-breaker, but such term does
not include * * * a master or member of a crew
of any vessel.

33 U.S.C. 902(3) (emphasis added). An employer’s
liability under the LHWCA is “exclusive and in
place of all other liability of such employer to the em-
ployee * * * at law or in admiralty.” 33 U.S.C.
905(a).

This Court recently concluded that a “master or
member of a crew of any vessel” within the meaning
of the LHWCA is the equivalent of a “seaman” un-
der the Jones Act. See McDermott Int'l, Inc. v.

Wilander, 111 S. Ct. 807, 813-814 (1991). The Jones
Act, in turn, provides that “[a]ny seaman who shall
suffer personal injury in the course of his employ-
ment may, at his election, maintain an action for
damages at law, with the right of trial by jury.” 46
U.S.C. App. 688.

2. Petitioner Southwest Marine, Inc., operates a
ship repair facility in San Diego. Petitioner owns
several structures that are used in ship repair and
that the court of appeals characterized as “floating
platforms.” ' Pet. App. II-2. These floating plat-
forms are used to carry “equipment, materials, sup-
plies, and vessel components around the shipyard and
on to and off of vessels being repaired.” Jbid. They
have no motive power or navigational aids of their
own, but are moved into place by tugs. Once secured
alongside a vessel, the platforms support ship repair-
men engaged in their work. Jbid.

Petitioner employed respondent as a rigging fore-
man. Respondent rode the floating platforms as they
were towed into place and performed his work while
on board. Respondent sometimes “served as a lookout
and gave maneuvering signals to the tugboat oper-
ator” when the platforms were moved. Pet. App.
II-2. He also received lines from the ships’ crews to
secure the platforms to the vessels being repaired.
He alleges that he was injured when his foot broke
through a piece of wood covering a hole in the deck
of a floating platform as it was transporting a rud-
der from the shipyard to a floating drydock. Jd. at
II-2 to IT-3.

‘Respondent characterizes these structures as “barges.”
Br. in Opp. 6. The district court characterized them as “float-
ing platforms,” Pet. App. I-2, and as “barge floats,” id. at
III-9. Petitioner itself has referred to one of the structures
as a “pontoon barge.” J.A. V-2.

4

Respondent submitted a claim for and received
benefits from petitioner under the LHWCA.* He
later filed this action against petitioner under the
Jones Act, alleging that he was a seaman injured as
a result of his employer’s negligence. Pet. App. II-3.
Respondent also asserted claims for unseaworthiness
and maintenance and cure. J.A. IV-4 to IV-5. Re-
spondent alleged that petitioner owned and operated
“a group of vessels including a pontoon barge, two
float barges, a rail barge, a diver’s barge, and a
crane barge in navigable waters.” J.A. IV-3. He
further alleged that, as a rigging foreman, he was
“permanently assigned to said group of vessels,’ and
thus was a Jones Act seaman. /bid.

The district court granted petitioner’s motion for
summary judgment. Pet. App. I-1 to I-2. The court
held that petitioner’s floating platforms were not ves-
sels in navigation to which respondent was perma-
nently attached, and that respondent was not aboard
primarily for the purpose of navigation. /bid.; id. at

? The LHWCA provides for two methods of receiving com-
pensation. The employer must pay benefits “periodically,
promptly and directly * * * without an award” unless it con-
troverts its liability for such compensation. 33 U.S.C. 914(a).
See also 20 C.F.R. 702.211, 702.231. If the employer contro-
verts the employee’s right to compensation, the deputy com-
missioner must take action to “protect the rights of all par-
ties.” 33 U.S.C. 914(d). The deputy commissioner may dis-
pose of the case informally, see 20 C.F.R. 701.301 (7), 702.311-
315, or by issuing a formal compensation order with the con-
sent of the parties, 20 C.F.R. 702.315. In cases that require
an evidentiary hearing, see 33 U.S.C. 914(h); 20 C.F.R.
702.316, 702.351, an administrative law judge issues a final
decision and order. 20 C.F.R. 702.348. In this case, petitioner
voluntarily paid respondent benefits under the LHWCA. Con-
sequently, there was no compensation order or adjudication
of respondent’s entitlement to benefits under the LHWCA.

5

III-8 to III-9. In addition, the district court con-
cluded that “plaintiff, as a harbor worker, is pre-
cluded from bringing this action by the exclusive
remedy provisions of the [LHWCA].” /d. at I-2.

3. The court of appeals reversed. Pet. App. II. It
observed that “[w]hether a claimant is a seaman is
typically a question for the jury, where there is an
evidentiary basis for such a finding.” Jd. at II-3. In
this case, the court found there was a sufficient basis
for allowing a jury to determine whether respondent
was a seaman. The court relied on its prior decision
in Estate of Wenzel v. Seaward Marine Services,
Inc., 709 F.2d 1326 (9th Cir. 1983), which concerned
a diver who worked aboard a submerged cleaning
and maintenance platform. The court of appeals con-
cluded that this case, like Wenzel, presents “close
questions of fact which should have been determined
by the jury.” Pet. App. II-4. In particular, the court
said, respondent was entitled to have a jury decide
whether the floating platforms are vessels, whether
respondent had a permanent relationship to the plat-
forms, and whether he aided in their navigation.
Ibid.

The court of appea's rejected the district court’s
holding that, as a matter of law, respondent was cov-
ered by the LHWCA rather than the Jones Act. The
court recognized that the LHWCA, where it applies,
is the employee’s exclusive remedy for an injury in
the course of maritime employment. Pet. App. II-5
(citing 33 U.S.C. 905(a)). But, the court observed,
“by its terms, the LHWCA does not cover ‘a master
or member of a crew of any vessel,’” which is “the
equivalent of ‘seaman’ in the Jones Act.” Pet. App.
II-6. Consequently, the court of appeals reasoned
that “[w]hether an employee is covered by the

6

LHWCA or the Jones Act should be determined by
looking to the nature of the claimant’s work and the
intent of Congress in enacting these compensation| ]
schemes, not by looking to the claimant’s job title.”
909 F.2d at 389.° Accordingly, the court held that
respondent’s status as a ship repairman, one of the
occupations enumerated in Section 2(3) of the
LHWCA, 33 U.S.C. 902(3), did not preclude him
from seeking damages under the Jones Act. Pet.
App. II-6.

SUMMARY OF ARGUMENT

Section 2(3) of the LHWCA, which defines the
class of employees covered by that Act, expressly
excludes from coverage “a master or a member of
a crew of any vessel.” 33 U.S.C. 902(3)(G). This
Court recently concluded that a “master or member
of a crew of any vessel’ is the equivalent of a Jones
Act seaman. McDermott Int’l, Inc. vy. Wilander, 111
S. Ct. 807 (1991). Wilander held, moreover, that
“[{i]t is not the employee’s particular job that is
determinative [of seaman status], but the employee’s
connection to a vessel.” Jd. at 817. Because a ship
repairman may spend all or most of his working
hours aboard a vessel (including a special-purpose
vessel used exclusively in ship repair), in further-
ance of that vessel’s mission, such a worker may qual-
ify as a Jones Act seaman.

Petitioner’s contention that ship repairmen, ship-
builders, and ship breakers should be conclusively
presumed not to be Jones Act seamen ignores the
LHWCA’s express language excluding from coverage
a “master or member of a crew of any vessel.” And
because Congress’s enumeration of certain occupa-

* This sentence is misquoted at Pet. App. II-6.

7

tional categories was not intended to be exhaustive,
petitioners’ approach would draw an irrational dis-
tinction between those in the enumerated categories
(longshoremen, ship repairmen, shipbuilders, and
ship-breakers) and other maritime employees. Peti-
tioner incorrectly relies on cases holding that certain
injured railroad workers who would otherwise have
a remedy under the Federal Employers’ Liability
Act, 45 U.S.C. 51 et seq., are instead covered by the
exclusive remedial provisions of the LHWCA. These
cases are readily distinguishable because the LHWCA
contains no express exclusion for railroad workers
comparable to the exclusion of Section 2(3)(G) for
crew members.

The legislative history confirms that Congress did
not intend to deprive seamen of their traditional
remedies for personal injury. The original LHWCA,
which applied only to longshore and harbor workers
injured on navigable waters, expressly excluded from
its coverage a “master or member of the crew of any
vessel.”” When the 1972 amendments to the LHWCA
extended coverage to certain maritime workers in-
jured on land, Congress limii* the categories of
land-based employees covered by the LHWCA by
specifying that they must be engaged in maritime
employment. But in extending the LHWCA to cer-
tain additional categories of land-based workers,
Congress did not intend to deprive sea-based workers
of their traditional seamen’s remedy under the Jones
Act.

Petitioner’s policy-based arguments cannot alter
the LHWCA’s plain language. Moreover, petitioner
is wrong in suggesting that an injured worker may
receive a “double recovery” under both the LHWCA
and the Jones Act. It is well settled that any com-
pensation received under the LHWCA will be credited

8

against a subsequent Jones Act award, and any
amounts paid to an employee pursuant to the Jones
Act must be credited against any subsequent liability
imposed under the LHWCA. Because employees can-
not receive a double recovery, it is not clear why
employers should be required to pay double insurance
premiums. The Court rejected a similar “double in-
surance” argument in Sun Ship, Inc. v. Pennsylvania,
447 U.S. 715, 725 (1980).

Nor is petitioner or its amicus correct in arguing
that an employee should be precluded from pursuing
a claim under the Jones Act simply because he has
also filed a claim under the LHWCA. Under estab-
lished principles of issue preclusion, only if the ques-
tion is actually litigated, and it is adjudicated that
an employee is not a member of a crew of any vessel,
is relitigation of that issue barred in an action under
the Jones Act.

Petitioner’s novel suggestion that the Department
of Labor should exercise primary jurisdiction over
the question whether a maritime employee is a sea-
man is outside the scope of the question presented for
review and, in any event, is without merit. Petition-
er’s reliance, in support of this suggestion, on the
exclusive remedy provision of the Federal Employees
Compensation Act (FECA), 5 U.S.C. 8116(c), is
completely misplaced. The courts defer to the Sec-
retary of Labor to determine whether an employee
is covered under FECA because that statute, unlike
the LHWCA, confers on the Secretary exclusive and
unreviewable authority to decide coverage questions.

9
ARGUMENT

I. JONES ACT SEAMEN ARE EXPRESSLY EX-
CLUDED FROM COVERAGE UNDER THE LHWCA

A. The LHWCA’s Definition of “Employee,” as Con-
strued in Wilander, Excludes Jones Act Seamen

By its terms, the LHWCA applies to “any person
engaged in maritime employment, including any long-
shoreman or other person engaged in longshoring
operations, and any harbor-worker including a ship
repairman, shipbuilder, and ship-breaker,” but not
to “a master or member of a crew of any vessel.” 33
U.S.C. 902(3). Congress could not have stated more
clearly that “a master or a member of a crew of any
vessel” is not within the scope of the LHWCA.

in McDermott Int'l, Inc. v. Wilander, 111 S. Ct.
807 (1991), this Court recognized that a “master or
member of a crew of any vessel’ under the LHWCA
is equivalent to a Jones Act seaman. The Court ob-
served that

“master or member of a crew” is a refinement
of the term “seaman” in the Jones Act; it ex-
cludes from LHWCA coverage those properly
covered under the Jones Act. Thus, it is odd but
true that the key requirement for Jones Act
coverage now appears in another statute.

111 S. Ct. at 813. The Court added that “ ‘master
or member of a crew’ restates who a ‘seaman’ under
the Jones Act is supposed to be: a sea-based maritime
employee.” Jd. at 814.

In Wilander, the Court concluded that “the better
rule is to define ‘master or member of a crew’ under
the LHWCA, and therefore ‘seaman’ under the Jones
Act, solely in terms of the employee’s connection to a

10

vessel in navigation.” 111 S. Ct. at 817. Accord-
ingly, the Court held that “[i]t is not necessary that
a seaman aid in navigation or contribute to the trans-
portation of the vessel, but a seaman must be doing
the ship’s work.” Jbid. The Court viewed this rule
as consistent with “Congress’ land-based /sea-based
distinction” between the LHWCA and the Jones Act.
Ibid. Because the Jones Act was intended to address
“the special hazards and disadvantages to which they
who go down to the sea in ships are subjected,” ibid.
(quoting Seas Shipping Co. v. Sieracki, 328 U.S. 85,
104 (1946) (Stone, C.J., dissenting) ), the Court said
that “it is not the employee’s particular job that is
determinative, but the employee’s connection to a
vessel.” * 111 S. Ct. at 817.

Thus, the plain language of the LHWCA excludes
from its coverage any “master or member of a crew
of any vessel”—i.e., any Jones Act seaman. As the
Court observed in Wilander, “[t]here is no indica-
tion in the Jones Act, the LHWCA, or elsewhere, that
Congress has excluded from Jones Act remedies those
traditional seamen who owe allegiance to a vessel at
sea, but who do not aid in navigation.” 111 S. Ct.
at 817. Accordingly, if respondent has the requisite
connection to a vessel in navigation, he is entitled to

* Wilander generally approved the Fifth Circuit’s test for
determining seaman status, which focuses on whether an em-
ployee was “assigned permanently to a vessel (including spe-
cial purpose structures not usually employed as a means of
transport but designed to float on water)” and whether the
employee “contributed to the function of the vessel or the
accomplishment of its mission.” Offshore Co. v. Robison, 266
F.2d 769, 779 (1959) (Wisdom, J.): see also Barrett v.
Chevron, U.S.A., Inc., 781 F.2d 1067, 1073 (1986) (en banc).

11

the remedies available to seamen rather than the ben-
efits provided by the LHWCA.*

* Petitioner (Pet. Br. 45-48) and its amicus (Shipbuilders
Council Br. 17-20) contend that, as a matter of law, respond-
ent lacked sufficient connection to a vessel in navigation to
qualify for seaman status. This contention is not within the
question on which the Court granted certiorari. See Sup. Ct.
R. 24.1(a). In any event, we believe that the question whether
respondent’s special-purpose structures may be “vessels” is
properly one to be determined as a question of fact. The
courts of appeals have held that a “vessel” can be virtually
any structure that has as its purpose and business, to some
reasonable degree, “the transportation of passengers, cargo,
or equipment from place to place across navigable waters.”
Johnson V. John F. Beasley Constr. Co., 742 F.2d 1054, 1063
(7th Cir. 1984) (quoting Bennett v. Perini Corp., 510 F.2d
114, 116 (1st Cir. 1975), cert. denied, 469 U.S. 1211 (1985)).
See also Cook v. Belden Concrete Prods., Inc., 472 F.2d 999,
1001 (5th Cir.), cert. denied, 414 U.S. 868 (1973) ; Producers
Drilling Co. Vv. Gray, 361 F.2d 432, 487 (5th Cir. 1966). In
addition, this Court has generally taken an expansive view
of what constitutes a “vessel.” See Norton v. Warner Co.,
321 U.S. 565, 571 (1944) ; Senko v. LaCrosse Dredging Corp.,
352 U.S. 370, 372 (1957) ; Gianfala v. Texas Co., 350 U.S. 879,
rev’g 222 F.2d 382 (5th Cir. 1955); Herb’s Welding, Inc. Vv.
Gray, 470 U.S. 414, 416 n.2 (1985). See also 1 U.S.C. 3.

Similarly, the question whether respondent had the requi-
site connection to vessels in navigation is, in our view, one
to be determined by the trier of fact. Respondent alleged
that he was “permanently assigned” to a “group of vessels”
J.A. IV-3. A seaman need not have an invariable connection
to a single vessel. Ardoin v. J. Ray McDermott & Co., 641
F.2d 277, 281 (5th Cir. 1981) (collecting cases). And con-
trary to the suggestion of the Shipbuilders Council (Br. 17),
seaman status has never turned on whether the employee
sleeps aboard the vessel. See, e.g., Senko, 352 U.S. at 372;
Gianfala, 350 U.S. 879; Ardoin, 641 F.2d at 282 (“[Mlerely
sleeping and eating aboard a support vessel while working on
a fixed platform does not make one a seaman * * *, Nor does a
failure to do so deprive one of seaman’s status.”’).

12

B. Petitioner’s Exclusive Focus on Job Title Conflicts
With The Language of the LHWCA

Petitioner asserts (Pet. Br. 15-25) that respond-
ent was a “land-based employee” covered by the
LHWCA as a matter of law because his occupation
was one of those enumerated in Section 2(3) of that
Act. In support of this position, petitioner relies on
Pizzitolo vy. Electro-Coal Transfer Corp., 812 F.2d
977 (5th Cir. 1987), cert. denied, 484 U.S. 1059
(1988). In Pizzitolo, the Fifth Circuit said that mar-
itime workers whose occupations are enumerated in
Section 902(3) are “unqualifiedly covered by the
LHWCA and therefore ineligible for benefits under
the Jones Act.” 812 F.2d at 982. Pizzitolo has not
been followed by other circuits, and appears to be a
doubtful precedent even within the Fifth Circuit.’
Because Pizzitolo’s approach is contrary to the lan-
guage of the LHWCA, it should be rejected.

In addition to limiting coverage to injuries that
occur on navigable waters or certain areas adjoin-
ing navigable waters (the “situs test”), the LHWCA
establishes a “status test” to determine coverage
under the Act. To pass the “status test,” a covered
employee must be (1) engaged in “maritime employ-

®In a subsequent case, the Fifth Circuit granted rehearing
en banc to address the tension between Robison and Pizzitolo,
but the parties subsequently settled the case. Legros V.
Panther Services Group, Inc., 863 F.2d 345 (1988), reh’g
en banc granted, 863 F.2d 355, appeal dismissed, 874 F.2d
954 (1989). See Chauvin v. Sanford Offshore Salvage, Inc.,
868 F.2d 735, 739 n.14 (5th Cir. 1989). In addition, the
Fifth Circuit has tended to analyze cases under both Robison
and Pizzitolo in order to verify that the outcome is the same
under both approaches. See, e.g., Leonard v. Dixie Well Serv-
ice & Supply, Inc., 828 F.2d 291 (1987) ; Thibodeaur v. Torch,
Inc., 858 F.2d 1048, 1050 (1988).

13

ment, including * * * [but not limited to] a ship
repairman, shipbuilder, and ship-breaker,” 33 U.S.C.
902(3), and (2) not fall within any of the exclusions
of Section 2(3)(A)-(H), including the exclusion for
a “master or member of a crew of any vessel,” 33
U.S.C. 902(3)(G). Only employees who satisfy both
parts of the status test are covered by the LHWCA.’

Petitioner’s contention is flawed for an additional
reason. The enumeration of occupations in Section
902(3) is not exhaustive. See Chesapeake & Ohio Dy.
v. Schwalb, 110 S. Ct. 381, 384 (1989); Herb’s Weld-
ing, Ine. v. Gray, 470 U.S. 414, 423 n.9 (1985).
Thus, petitioner’s argument, which would apply a
conclusive presumption of LHWCA coverage to ship
repairmen, shipbuilders, and ship-breakers, would
draw an irrational distinction between workers in
those occupations and other land-based maritime
workers. There is no indication that Congress in-
tended to draw any such distinction.

Of course, a ship repairman may lack the requisite
connection to a vessel in navigation to qualify for
seaman status. See P.C. Pfeiffer Co. v. Ford, 444
U.S. 69, 80-81 (1979) (noting that “30%-35% of
ship repair work is done on land”). The mere fact
that a ship repairman performs some of his work
on water does not make him a seaman, but a ship
repairman may spend all or most of his working
hours aboard a vessel (or vessels), in furtherance

? Petitioner does not suggest that the other express exclu-
sions of Section 2(3)—such as the exclusion for “individuals
employed by a club, camp, recreational operation, restaurant,
museum, or retail outlet,” 33 U.S.C. 902(3) (B), or for “indi-
viduals employed to build, repair, or dismantle any recrea-
tional vessel under sixty-five feet in length,” 33 U.S.C.
902(3)(F) should be so ignored.

14

of the vessel’s mission. In such circumstances, the
employee may meet the test for seaman status, since
that test turns on employees’ work-related connec-
tion to a vessel in navigation, “regardless of the par-
ticular job they perform.” See Wilander, 111 S. Ct.
at 817. Consequently, job title alone cannot deter-
mine whether an employee is a seaman covered by the
Jones Act or a_harbor-worker covered by the

LHWCA.*

C. The FELA Cases Do Not Support Petitioner’s
Position

Petitioner contends (Pet. Br. 31-33) that the court
of appeals’ decision in this case conflicts with deci-
sions holding that the LHWCA provides the exclusive
remedy for certain injured railroad workers who
would otherwise be covered by the Federal Employ-
ers’ Liability Act (FELA), 45 U.S.C. 51 et seg. See
Chesapeake & Ohio Ry. v. Schwalb, 110 8. Ct. 381
(1989); Pennsylvania R.R. v. O'Rourke, 344 U.S.
334 (1953). Petitioner’s reliance on these cases is
misplaced. The LHWCA applies to certain railroad

® Courts look to actual job content rather than job title
under other remedial statutes designed to protect workers.
See, e.g., Brennan Vv. Western Union Tel. Co., 561 F.2d 477 (3d
Cir. 1977), cert. denied, 434 U.S. 1063 (1978) (Fair Labor
Standards Act of 1938, 29 U.S.C. 201 et seq.); Hodgson Vv.
The Klages Coal & Ice Co., 435 F.2d 377 (6th Cir.) (same),
cert. denied, 412 U.S. 973 (1970); Forsberg v. Pacific N.W.
Bell Tel. Co., 840 F.2d 1409 (9th Cir. 1988) (Equal Pay Act
of 1963, 29 U.S.C. 206(d)); Epstein v. Secretary, United
States Dep’t of Treasury, 739 F.2d 274 (7th Cir. 1984)
(same); Fountain Vv. Metcalf, Zima & Co., 925 F.2d 1398
(11th Cir. 1991) (Age Discrimination in Employment Act of
1967, 29 U.S.C. 621). An exclusive focus on job title would
allow employers to affect coverage determinations by manipu-
lating job titles.

15

workers (and therefore provides their exclusive rem-
edy) because the LHWCA contains no exclusion for
railroad workers comparable to the exclusion of Sec-
tion 2(3)(G) for Jones Act seamen. Indeed, the
FELA analogy demonstrates that petitioner’s posi-
tion cannot be squared with the language of the
LHWCA. Petitioner would treat Jones Act seamen,
who are expressly excluded from the LHWCA’s defi-
nition of “employee,” in the same manner as railroad
workers, who are not so excluded. That result can be
reached only by ignoring the language of the
LHWCA.’

It. NEITHER THE LEGISLATIVE HISTORY OF THE
LHWCA, NOR THIS COURT’S PRIOR DECISIONS,
SUGGEST THAT CONGRESS INTENDED TO DIs-
PLACE THE TRADITIONAL REMEDIES AVAIL-
ABLE TO SEAMEN

A. The Legislative History Confirms That Congress
Did Not Intend to Deprive Seamen of Their Tradi-
tional Remedies for Personal Injury

The legislative history of the LHWCA provides no
support for petitioner’s assertion (Pet. Br. 24) that
Congress intended “to sweep employees in oveupa-
tions enumerated in the LHWCA within the excly
sive coverage of the LHWCA.” Instead, the legisla-
tive history confirms that Congress intended to ex-
clude seamen from coverage under the LHWCA. In
1972, Congress extended the LHWCA to injuries that

® Contrary to petitioner’s assertion (Pet. Br. 5), Section
5(a) of the LHWCA (the “exclusivity provision”) does not
itself provide that all maritime employees engaged in enumer-
ated occupations are covered by the LHWCA. Section 5(a)
provides only that, where the LHWCA applies, it is exclusive;
it says nothing about the scope of the LHWCA.

16

occur on land adjacent to navigable waters. That
expansion of remedies was not intended to deprive
seamen of their traditional remedies under the Jones
Act and general maritime law.

1. The Original LHWCA Did Not Apply to Seamen

In Southern Pacific Co. v. Jensen, 244 U.S. 205
(1917), this Court held that the States could not con-
stitutionally extend their workers’ compensation sys-
tems to longshore workers injured on navigable wa-
ters. See Northeast Marine Terminal Co. v. Caputo,
432 U.S. 249, 256-257 (1977); Calbeck v. Travelers
Ins. Co., 370 U.S. 114, 117-118 (1962). Following
Jensen, “[t]he line of demarcation between land and
water became known as the Jensen line.” Director,
OWCP vy. Perini North River Associates, 459 U.S. 297,
306 (1983). Congress enacted the LHWCA in 1927
to fill the gap in workers’ compensation coverage that
resulted from Jensen. P.C. Pfeiffer Co. v. Ford, 444
U.S. 69, 72 (1979). The original Act excepted from
its coverage a “master or member of a crew of any
vessel,” ch. 509, § 2(3), 44 Stat. 1425, because repre-
sentatives of maritime employees successfully argued
that the Jones Act and other traditional admiralty
remedies generally provide superior relief. See Boatel,
Inc. v. Delamore, 379 F.2d 850, 856 (5th Cir. 1967)
(citing Norton v. Warner Co., 321 U.S. 565 (1944) ).
This Court has recognized a duty “not [to] permit
the exception to be narrowed whether by administra-
tive construction or otherwise.” /d. at 571.

2. The 1972 Amendments to the LHWCA Did Not
Restrict the Remedies Available to Seamen

The original LHWCA “stopped at the water’s edge.”
Caputo, 432 U.S. at 259. With the advent of modern
containerized shipping, however, longshoring func-
tions traditionally performed aboard ship came to be

17

performed on land. Ford, 444 U.S. at 74. Once
again, therefore, coverage under the LHWCA de-
pended on which side of the Jensen line a longshore
worker’s injury occurred. In Nacirema Operating
Co. v. Johnson, 396 U.S. 212 (1969), this Court noted
the advantages of a uniform system of compensation
benefits for longshore workers on both sides of the
Jensen line, but said that the “invitation to move
that line landward must be addressed to Congress,
not to this Court.” Jd. at 224.

In 1972, Congress accepted the invitation by enact-
ing amendments to the LHWCA. “Whereas prior to
1972 the Act reached only accidents occurring on
navigable waters, the amended 33 U.S.C. § 903 ex-
pressly extended coverage to ‘adjoining area[s]’” on
land. Herb’s Welding, Inc. v. Gray, 470 U.S. at 420.
The 1972 amendments “were not meant ‘to cover em-
ployees who are not engaged in loading, unloading,
repairing, or building a vessel, just because they are
injured in an area adjoining navigable waters used
for such activity.’” Jd. at 424 (quoting H.R. Rep.
No. 1441, 92d Cong., 2d Sess. 11 (1972)). For ex-
ample, truck drivers and clerical workers, although
performing their work on the newly expanded site of
coverage, are not covered by the LHWCA, because
they are not engaged in “loading, unloading, repair-
ing, or building a vessel.” S. Rep. No. 1125, 92d
Cong., 2d Sess. 13 (1972). See also Caputo, 432 U.S.
at 266-267; Perini, 459 U.S. at 318. Thus, when the
definition of “navigable waters” was broadened to
include land-based sites, “it became necessary to de-
scribe affirmatively the class of workers Congress
desired to compensate.” Caputo, 432 U.S. at 264."

In the course of its deliberations on the 1972 amend-
ments, Congress rejected S. 1547, 92d Cong., Ist Sess. (1971),
a bill that would have made the LHWCA the exclusive remedy

18

This legislative history provides no basis for con-
cluding that, in enumerating certain occupations in
Section 2(3), Congress intended to limit the remedies
traditionally available to seamen. On the contrary,
Congress retained the express exclusion for masters
or members of the crew of any vessel. See Caputo,
432 U.S. at 264 n.22.”

B. Petitioner’s Approach Is Inconsistent With the Re-
medial Purposes of the LHWCA and the Jones Act

The Jones Act, like the LHWCA, “is a remedial
statute,” Wilander, 111 S. Ct. at 814; the Court has
recognized an “obligation not to narrow unduly the

for offshore oil workers. See Longshoremen’s and Harbor
Workers’ Compensation Act Amendments of 1972: Hearings
on S. 2318, S. 525, S. 1547 Before the Subcomm. on Labor of
the Senate Comm. on Labor and Public Welfare, 92d Cong.,
2d Sess. 418-420 (1972) (statement of Joseph M. Shelton) ;
id. at 602 (statement of John R. Martzell). The bill was
opposed on the ground that it would relegate an entire class
of workers traditionally treated as crew members to the less
advantageous remedy available under the LHWCA. See id.
at 589-590 (statement of Maritime Trades Dep’t, AFL-CIO).
See also Herb’s Welding, Inc., 470 U.S. at 420 n.5.

11 Petitioner’s reliance (Pet. Br. 37-39) on the 1984 amend-
ments to the LHWCA is similarly misplaced. The 1984
amendments prohibit negligence actions by ship repairmen,
ship builders, and ship-breakers (but not longshore workers)
against employers who happen to own the vessel on which
they are injured. See H.R. Rep. No. 570, 98th Cong., Ist Sess.
Pt. 1, at 7 (1983). Because the 1984 amendments do not bar
negligence actions against employer-owners, the amend-
ments do not reflect an across-the-board intent to limit the
employer’s liability. In any event, the 1984 amendments con-
cern only the remedies available to employees covered by the
LHWCA. They do not affect the definition of a covered
employee.

19

class for whom Congress provided recovery under the
Jones Act,” id. at 815. Although the LHWCA gen-
erally is interpreted broadly to further its remedial
purposes, see, e.g., Caputo, 432 U.S. at 268, it is
not appropriate to construe the LHWCA to sup-
plant remedies under the Jones Act, which is it-
sel a federal remedial statute that must be given
broad effect. As Judge Wisdom noted in Robison,
“(t]he process of liberal construction of the Jones
Act cannot now be ignored because Congress has seen
fit to pass the Longshoremen’s Act.” 266 F.2d at 774
(quoting Carumbo v. Cape Cod S.S. Co., 123 F.2d
991, 995 (1st Cir. 1941) ).”

In Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715
(1980), this Court held that the 1972 amendments to
the LHWCA did not supplant state workers’ compen-
sation remedies previously available to injured work-
ers. Because the “thrust of the amendments was to
‘upgrade the benefits,’” id. at 723 (quoting S. Rep.
No. 1125, supra, at 1), the Court declined to pre-
empt state remedies in the name of “uniformity.”
447 U.S. at 726. It is at least as clear that the 1972
amendments were not designed to deny maritime em-
ployees the Jones Act remedy to which they were
previously entitled.”

2 It is true that the LHWCA, like most workers’ compen-
sation statutes, struck a balance between the interests of
workers and their employers. See Morrison-Knudsen Constr.
Co. v. Director, OWCP, 461 U.S. 624, 635-636 (1983). But
the balance was not struck to the detriment of Jones Act
seamen. On the contrary, Congress expressly excluded crew
members from the scope of the LHWCA.

13 We recognize that the court of appeals’ decision would
leave one category of employees—crew members whose em-
ployers are not negligent—without a remedy under either the
Jones Act or the LHWCA. But this is simply a consequence

20

C. This Court’s Decisions Construing the 1972 Amend-
ments Do Not Support Petitioner’s Position

Contrary to petitioner’s contentions (Pet. Br. 20-
25), this Court’s prior decisions construing the 1972
amendments do not support a different reading of
the statute or its legislative history. Northeast
Marine Terminal Co. v. Caputo, 432 U.S. 249
(1977), held that a worker who checked and marked
cargo at a pier, and a terminal laborer who loaded
and unloaded containers, barges, and trucks, were
covered by the LHWCA. Similarly, P.C. Pfeiffer Co.
v. Ford, 444 U.S. 69, 83 (1979), held that employees
who performed the “intermediate steps of moving
cargo between ship and land transportation” were
engaged in maritime employment. /d. at 82. The
Court’s central concern in both Caputo and Ford was
to interpret the status requirement in a way that
eliminated Congress’s “concern[] that some workers
might walk in and out of [federal] coverage” depend-
ing upon the fortuity of whether they worked on
land or water. Ford, 444 U.S. at 83 n.18. Congress’s
decision to eliminate the significance of the Jensen
line for land-based workers does not imply a decision
to restrict the remedies available to seamen. On the
contrary, as the Court noted in Caputo, 432 U.S. at

of providing the same treatment for all maritime employees
who meet the “seaman status” test for coverage under the
Jones Act. We also note that the Jones Act generally has not
been held to require seamen to show a high degree of negli-
gence, see, e.g., Bennett v. Perini Corp., 510 F.2d 114, 117-
118 (1st Cir. 1975), and that a seaman unable to establish
liability under the Jones Act may nevertheless be able to
pursue claims for unseaworthiness (which does not require
proof of negligience, see Seas Shipping Co. v. Sieracki, 328
U.S. 85 (1946)), or for maintenance and cure.

21

264 n.22, Congress retained the express exclusion for
crew members.

In Director, OWCP vy. Perini North River Asso-
ciates, 459 U.S. 297 (1983), the Court refused
to revive the “maritime but local” distinction to mark
a dividing line between federal and state compensa-
tion systems. The Court found nothing in the 1972
amendments or their legislative history to “indicate
that Congress intended to withdraw coverage from
employees injured on the navigable waters in the
course of their employment as that coverage existed
before the 1972 Amendments.” /d. at 325. The Court
was careful to note that a worker injured on navi-
gable waters “satisfies the status requirement in
§ 2(3), and is covered under the LHWCA, providing,
of course, that he * * * is not excluded by any other
provision of the Act.” Jd. at 324."

Ill. PETITIONER’S POLICY-BASED ARGUMENTS ARE
UNPERSUASIVE

Petitioner argues (Pet. 8) that the court of ap-
peals’ decision will impose “an unreasonable economic
burden” on financially troubled employers. The short
answer to this argument, as well as to petitioner’s
other policy-based arguments, is that it cannot alter
the plain language of the LHWCA. In any event,
petitioner’s policy arguments fail on their own merits.

‘ Contrary to petitioner’s contention (Pet. Br. 24 n.85),
Perini does not conflict with Wilander, because there was no
evidence that the injured worker had the requisite connection
to a vessel to qualify as a Jones Act seaman.

22

A. The Court of Appeals’ Decision Will Not Lead to
Double Recoveries

Petitioner states (Pet. Br. 12) that the court of
appeals’ decision “allows an injured worker to possi-
bly receive both a jury award and a LHWCA rem-
edy, despite Congress’ intention that he receive one
or the other, but not both.” If petitioner is suggest-
ing that there may be a double recovery, the sug-
gestion is flatly wrong. Any benefits paid by an
employer under the LHWCA are credited against a
subsequent Jones Act award. See Simms v. Valley
Line Co., 709 F.2d 409, 412 n.3 (5th Cir. 1983); 4 A.
Larson, Workmen’s Compensation Law § 90.51(a),
at 16-508 to 16-509 & n.86 (1990) (collecting cases).
Because the LHWCA and Jones Act are mutually
exclusive, “[n]o problem of double recovery is
involved: the compensation payments [under the
LHWCA] will be routinely deducted from the dam-
age recovery if the Jones Act action is successful.”
G. Gilmore & C. Black, The Law of Admiralty § 6-52,
at 435 (2d ed. 1975). Cf. Sun Ship, Ine. v. Pennsyl-
vania, 447 U.S. 715, 725 n.8 (1980) (“Of course,
there is no danger of double recovery under concur-
rent [federal and state] jurisdiction since employers’
awards under one compensation scheme would be
credited against any recovery under the second
scheme.”). Moreover, Section 3(e) of the LHWCA
provides that any amounts paid to an employee “pur-
suant to” the Jones Act “shall be credited against
any liability imposed” under the LHWCA. 33 U.S.C.
903(e).

Petitioner also argues (Pet. Br. 5) that the court
of appeals’ decision will compel employers to insure
maritime employees under both the LHWCA and
Jones Act. Since employees are not entitled to double

23

recovery, it is not clear why employers should be re-
quired to pay full insurance premiums for coverage
under both statutes. But in any event, this Court
rejected a similar argument in Sun Ship, Ine. v.
Pennsylvania, 447 U.S. 715 (1980), in the context of
state workers’ compensation remedies. The Court
noted that “[t]he line that circumscribes the juris-
dictional compass of the LHWCA—a compound of
‘status’ and ‘situs’—is not less vague than its counter-
part in the pre-‘twilight zone’ Jensen era.” Id. at
725. Similarly, it may be difficult to determine in
advance whether a particular employee falls within
one of the LHWCA’s occupations. See, e.g., Sharp
v. Wasau Ins. Co., 917 F.2d 885, 887 (5th Cir. 1990)
(rejecting determination that injured employee was a
longshoreman). Thus, even under petitioner’s ap-
proach, employers often could not rule out the possi-
bility of Jones Act liability.

B. Under Established Principles of Issue Preclusion,
Only an Adjudication Under the LHWCA That an
Employee Is Not a Crew Member Precludes Litiga-
tion of a Jones Act Claim

Petitioner implies (Pet. Br. 9), and its amicus
Shipbuilders Council of America expressly argues
(Br. 21-23), that an employee’s receipt of benefits
under the LHWCA should preclude any subsequent
litigation under the Jones Act. Under established
principles of issue preclusion, however, respondent’s
acceptance of voluntary LHWCA payments does not
preclude subsequent litigation of his Jones Act claim.
Only if the question is actually litigated, and it is
adjudicated that an employee is not a crew member,
is the employee precluded from litigating a Jones
Act claim. See, e.g., Boatel, Inc. vy. Delamore, 379
F.2d at 855; 4 A. Larson, supra, § 90.51(c), at 16-

24

519. See generally Restatement (Second) of Judg-
ments §27 (1982). It is in this sense that the
LHWCA is not “a stepping stone on the way to a
jury award.” Fontenot v. AWI, Inc., 923 F.2d 1127,
1133 & n.41 (5th Cir. 1991) (citing Kremer v. Chem-
ical Constr. Corp., 456 U.S. 461, 480-482 (1982)).
To go beyond the rules of issue preclusion in this
context, and to apply some more draconian election-
of-remedies rule to bar Jones Act relief, would be
wholly inappropriate. As a leading commentator has
observed, it “would undermine and prejudice the
operation of this protective public program if the
claimant were put in the position of risking the loss
of other valuable rights, such as those under the Jones
Act, by the mere fact of accepting or invoking this
basic system of compensation” under the LHWCA.
4 A. Larson, supra, § 90.51(b), at 16-512.

In accordance with these principles, it is “uni-
versally accepted” that an employee who receives vol-
untary payments under the LHWCA, see 33 U.S.C.
914(a), 20 C.F.R. 702.231, is not barred from sub-
sequently seeking relief under the Jones Act. 4 A.
Larson, supra, § 90.51(a), at 16-507. See, e.g., Simms
v. Valley Line Co., 709 F.2d 409 (5th Cir. 1983) ;
Robertson v. Donovan, 219 F. Supp. 364 (E.D. La.
1963); Lawrence v. Norfolk Dredging Co., 194 F.
Supp. 484 (E.D. Va. 1961); Chesser v. General
Dredging Co., 150 F. Supp. 592 (S.D. Fla. 1957).
Similarly, if a claim under the LHWCA is not ad-
judicated, the claimant is not precluded from seeking
Jones Act relief. Boatel, Inc. y. Delamore, 379 F.2d
850 (5th Cir. 1967); Wilkes v. Mississippi River
Sand & Gravel Co., 202 F.2d 383 (6th Cir.), cert.
denied, 346 U.S. 817 (1953): Oliver v. Ocean
Drilling & Exploration Co., 222 F. Supp. 843 (W.D.
La. 1963); Boyles v. Humble Oil & Refining Co.,

25

209 F. Supp. 857 (E.D. La. 1962). Absent an ad-
judication that satisfies the prerequisites for issue
preclusion, there is nothing “sinister” about an em-
ployee who accepts benefits under the LHWCA and
then proceeds to litigate a Jones Act claim. Boatel,
Inc. vy. Delamore, 379 F.2d at_854.

C. Petitioner's “Primary Jurisdiction” Argument Is
Without Merit

Petitioner advances the novel proposition (Pet.
Br. 40-45) that, where an employee is arguably cov-
ered by the LHWCA, the district court should “stay
the Jones Act proceeding until the plaintiff has ob-
tained a final LHWCA agency determination that
he is a ‘master or member of a crew,’ i.e., a Jones
Act ‘seaman.’” Jd. at 44. We believe this argu-
ment is not fairly embraced within the question pre-
sented for review, which is addressed to whether
those in the enumerated occupations are per se ex-
cluded from Jones Act coverage. See Sup. Ct. R.
24.1(a). But in any event, the argument is with-
out merit.

Petitioner relies (Br. 44 n.155) on the exclusive
remedy provision of the Federal Employees Compen-
sation Act (FECA), 5 U.S.C. 8116(c). Petitioner
is correct that, where there is a substantial question
of coverage under FECA, the courts will stay or dis-
miss an action under the Federal Tort Claims Act
(FTCA), 28 U.S.C. 2671 et seq., until the Depart-
ment of Labor determines whether FECA applies.
See, e.g., DiPippa v. United States, 687 F.2d 14, 20
(3d Cir. 1982); Avasthi v. United States, 608 F.2d
1059, 1060 (5th Cir. 1979). But petitioner is in-
correct in drawing an analogy between the FECA /
FTCA relationship and the LHWCA/Jones Act rela-
tionship. FECA—unlike the LHWCA—contains an

26

“unambiguous and comprehensive” provision barring
any judicial review of the Secretary’s determination
of FECA coverage. Lindahl v. OPM, 470 U.S. 768,
780 (1985). Thus, the courts have no jurisdiction
over FTCA claims where the Secretary of Labor
determines that FECA applies to the alleged injury.
Grijalva v. United States, 781 F.2d 472, 474 (5th
Cir.), cert. denied, 479 U.S. 822 (1986); Heilman
v. United States, 731 F.2d 1104, 1109-1110 (3d Cir.
1984) ; DiPappa, 687 F.2d at 16.

In the LHWCA/Jones Act context, in contrast,
Congress has assigned no such dominating role to
the Secretary of Labor. The LHWCA contains no
bar to judicial review, but instead provides for reso-
lution of factual disputes by ALJs, review by the
Benefits Review Board and, thereafter, by the courts
of appeals. 33 U.S.C. 919(d), 921(b). South Chi-
cago Coal & Dock Co. v. Bassett, 309 U.S. 251
(1940), on which petitioner relies (Pet. Br. 41),
stands only for the proposition that a fact-finder’s
determination of crew-member status must be ac-
cepted if it is supported by substantial evidence. See,
e.g., Norton v. Warner Co., 321 U.S. at 571-573
(overturning deputy commissioner’s determination
that a bargeman was not a seaman). Thus, there is
nothing anomalous about having a jury decide sea-
man status under the Jones Act.

15 Section 8128(b) provides that
{t]he action of the Secretary or his designee in allowing
or denying a payment under [FECA] is—(i) final and
conclusive for all purposes and with respect to all ques-
tions of law and fact; and (2) not subject to review by
another official of the United States or by a court by
mandamus or otherwise.

In addition, the Secretary is to decide all questions “arising
under” FECA. 5 U.S.C. 8145.

27

CONCLUSION

The judgment of the court of appeals should be
affirmed.

Respectfully submitted.

KENNETH W. STARR
Solicitor General

DAVID L. SHAPIRO
Deputy Solicitor General

ROBERT A. LONG, JR.
Assistant to the Solicitor General
ROBERT P. DAVIS
Solicitor of Labor

ALLEN H. FELDMAN
Associate Solicitor

KERRY L. ADAMS
Counsel for Appellate Litigation

DEBORAH GREENFIELD
Attorney
Department of Labor

May 1991

WW Uv. S. GOVERNWENT PRINTING OFFICE, 1991 262061 20540

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0030%3A08. Public record. Not legal advice.