Amicus Curiae Brief — Harbor Tug & Barge Co. v. Papai

In the Supreme Court of the United States

OCTOBER TERM, 1996

HARBOR TUG AND BARGE COMPANY, PETITIONER

.

JOHN PAPAI AND JOANNA PAPAI

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENTS

WALTER DELLINGER

Acting Solicitor General

EDWIN S. KNEEDLER

Deputy Solicitor General

DAVID C. FREDERICK

Assistant to the Solicitor

J. DAVITT MCATEER

Acting Solicitor of Labor

ALLEN H. FELDMAN

Associate Solicitor

NATHANIEL I. SPILLER

Deputy Associate Solicitor

MARK S. FLYNN

Senior Appellate Attorney

Department of Labor

Washington, D.C. 20210

General

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

The Jones Act, 46 U.S.C. App. 688, provides a “sea-

man” injured in the course of his employment with a

negligence cause of action against his employer. The

Longshore and Harbor Workers’ Compensation Act

(LHWCA), 33 U.S.C. 901 et seqg., requires employers

to pay compensation and medical benefits to certain

maritime workers injured in the course of their em-

ployment, but excludes from its scope “a master or

member of a crew of any vessel,” 33 U.S.C. 902(3)(G),

a designation that has been held to be synonymous

with a “seaman” under the Jones Act. The questions

presented are:

1. Whether a determination in a compensation pro-

ceeding under the LHWCA that a worker was not a

member of a crew precludes the worker from inde-

pendently establishing his status as a seaman in a

civil suit under the Jones Act.

2. Whether an employee who is hired on a daily

basis through a multi-employer hiring hall to perform

maritime work on a vessel has the requisite connec-

tion to an identifiable group of vessels to be con-

sidered a seaman subject to Jones Act coverage.

TABLE OF CONTENTS

Argument:

I. The administrative law judge’s award of bene-

fits to respondent does not preclude the dis-

trict court in this Jones Act suit from inde-

pendently determining whether respondent

1 9

A. Respondent is not collaterally estopped

from asserting his “seaman” status

based on the ALJ's ruling in the LHWCA

11111 ———— 10

B. The LHWCA “exclusivity clause” does not

require that the ALJ decision be treated as

a bar to respondent's Jones Act claim 19

II. Respondent’s seaman status is a mixed question

of law and fact that should not be kept from a

jury just because petitioner employed him on a

daily basis from a union hiring hall .................... 24

„ 31

TABLE OF AUTHORITIES

Cases:

Astoria Fed. Sav. & Loan Ass'n v. Solimino,

r 10, 11, 12, 17

Bertrand v. International Mooring & Marine, Inc.,

700 F.2d 240 (5th Cir. 1983), cert. denied, 464 U.S.

. 27, 30

Bloomer v. Liberty Mutual Ins. Co., 445 U.S. 74

Te 18

Chandris, Inc. v. Latsis, 115 S. Ct. 2172 (1995) ...... 6, 8,

9, 11, 12, 25, 26, 28, 29

DiPippa v. United States, 687 F.2d 14 (3d Cir.

A a a 21

(II)

Cases—Continued:

Page

Figueroa v. Campbell Indus., 45 F.3d 311 (9th Cir.

...... 24

Fisher v. Nichols, 81 F.3d 319 (2d Cir. 1996) .......... 27

Imel v. Laborers Pension Trust Fund, 904 F.2d

1327 (9th Cir.), cert. denied, 498 U.S. 939 (1990) 26

McDermott, Inc. v. Boudreaux, 679 F.2d 452

„/ /! ean eee 12

McDermott Int'l, Inc. v. Wilander, 498 U.S. 337

. 2. 5, 11, 12, 25

Metropolitan Stevedore Co. v. Rambo, 115 S. Ct.

. 14

23208 14

2 ———ñ—— — 17, 18

Reid v. Universal Maritime Serv. Corp., 41 F.3d

I . “ 23

Sharp v. Johnson Bros. Corp., 973 F.2d 423 (5th

Cir. 1992), cert. denied, 508 U.S. 907 (1993) ............ 24

Simms v. Valley Line Co., 709 F.2d 409 (5th Cir.

——2ů——— ——ͤ 12

Southwest Marine, Inc. v. Gizoni, 502 U.S. 81

— 5, 7, 8, 12, 13, 17, 21, 22, 23

Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715

. x 17, 22

Statutes and regulations:

Federal Employees’ Compensation Act, 5 U.S.C.

09 ——ñññññññññññññññññññ— 21

58 88..;.;.ñ 21

1 ˙ůͥ 21

800... 21

Federal Tort Claims Act, 28 U.S.C. 2671 et seq. ........ 21

Jones Act, 46 U.S.C. App. 688 1

L KR 2. 9. 11

V

Statutes and regulations - Continued: Page

Longshore and Harbor Workers’ Compensation Act,

FD eet SO GO GUD. crctetnnsnensncccensscccssessssscsemessenstess 1,9

II en 23

§ 2(3)(G), 33 U.S.C. 90203086) 2, 4, 9, 11

LI 2

§ 3(e), 33 U.S. C. 90e) 12, 13. 22, 23, 24

ZI ee 22

§ 5(a), 33 U.S.C. 905%) 8, 9, 19, 20, 21, 22, 23, 24

§ 5(b), 33 U.S.C. 90500) 3, 4, 5, 20, 22

II an 24

§ 8(1)(1), 33 U.S.C. 908⁰“˙.t½¹— . . . 23

ch, n U.S. C. oi) . —ͤ 16

14 (a), 33 U.S.C. 91d )) . . 18

$ 14(d), 33 U.S.C. 910d) . .. 18

ide, U.S. C. e)) 18

Ait, 3B U.S.C. Ia) . 5

L 21

QE ( , Oy 13

Aa, BB U.S.C. Na) . 22

b, 3B U. SC. 0 ————————ꝗ—9—ͤ 22

11 ͤ iQ 1

1K 2 ———— 4

20 C. F. R.:

2. —KK ñ 5

1. . — — 23

a), . — 4

a) EE 4

. T—— —„V½ 4

Miscellaneous:

G. Gilmore & C. Black, The Law of Admiralty (2d ed.

ee 16, 23

H.R. Rep. No. 1767, 69th Cong., 2d Sess. (1927) ........ 18

2A A. Larson & L. Larson, The Law of Workmens’

Compensation (1996) . . .... . 20-21

Restatement (Second) of Judgments (1982) ............ 11, 15

D. Robertson, The Law of Seaman Status Clarified,

23 J. Mar. L. & Com. 1 (1992) 26-27

In the Supreme Court of the United States

OCTOBER TERM, 1996

No. 95-1621

HARBOR TUG AND BARGE COMPANY, PETITIONER

.

JOHN PAPAI AND JOANNA PAPAI

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENTS

INTEREST OF THE UNITED STATES

This case presents the question whether a deter-

mination by an administrative law judge that an

injured worker is covered by the Longshore and

Harbor Workers’ Compensation Act (LHWCA), 33

U.S.C. 901 et Se., precludes the worker from bringing

an action against his employer under the Jones Act,

46 U.S.C. App. 688. The case also presents the ques-

tion whether an employee who is hired on a daily basis

through a multi-employer hiring hali to work on

vessels has the requisite connection to an identifiable

group of vessels to be considered a seaman subject to

Jones Act coverage. The Secretary of Labor adminis-

ters the LHWCA, 33 U.S.C. 939, and thus has an

interest in whether LHWCA adjudications have a pre-

clusive effect on Jones Act proceedings and whether

(1)

2

employees who staff vessels through multi-employer

hiring halls are included in Jones Act coverage (and

excluded from LHWCA coverage) as memberſs] of a

crew.” 33 U.S.C. 902(3)(G).

STATEMENT

1. The Jones Act provides that “[aJjny seaman who

shall suffer personal injury in the course of his

employment may, at his election, maintain an action

for damages at law, with the right of trial by jury.” 46

U.S.C. App. 688(a). The Act thus provides a worker

who is a “seaman” with a negligence cause of action

against his employer.

The LHWCA is a workers’ compensation statute

that applies to certain employees injured in the

course of maritime employment “upon the navigable

waters of the United States” and adjoining areas. 33

U.S.C. 903(a). Section 2(3)(G) of the LHWCA defines

an “employee” covered by the Act as

any person engaged in maritime employment, in-

cluding any longshoreman or other person en-

gaged in longshoring operations, and any harbor-

worker including a ship repairman, shipbuilder,

and ship-breaker, but such term does not include

* * * a master or member of a crew of any vessel.

33 U.S.C. 902(8)(G) (emphasis added). A “master or

member of a crew of any vessel” within the meaning

of the LHWCA is synonymous with “seaman” under

the Jones Act. See McDermott Int'l, Inc. v. Wilan-

der, 498 U.S. 337, 347 (1991).

2. Respondent John Papai was injured while work-

ing as a deckhand on a tug operated by petitioner

.

Joanna Papai, John's wife, is also a plaintiff in the action

(and a respondent in this Court), seeking damages for loss of

3

Harbor Tug and Barge Company. Pet. App. 3a. Peti-

tioner does not maintain a permanent crew for its own

vessels. Instead, pursuant to a Deckhands Agree-

ment with the Inland Boatman’s Union (IBU or

Union), it obtains necessary staff for its vessels from

the Union’s hiring hall. Jbid. On the day of his

injury, respondent had been dispatched to work as a

deckhand on a one-day assignment to the tug, under

the supervision of petitioner’s port captain. Respon-

dent was assigned to paint the tug and was injured

when he fell while climbing down a ladder. Jbid.

Between 1987 and his injury on March 13, 1989,

respondent had obtained maintenance, deckhand,

and longshoring jobs through the IBU hiring hall

with various participating employers. Id. at 36a-37a.

Those jobs mostly lasted one day, sometimes two or

three days, and occasionally longer. J.A. 29, 34. Be-

tween January 1, 1989, and the date of his injury, re-

spondent worked 13 days for petitioner. Pet. App. 3a.

3. In January 1990, respondent filed this action

against petitioner seeking damages under the Jones

Act and for unseaworthiness under general maritime

law. Pet. App. 3a. The district court granted peti-

tioner’s motion for summary judgment, ruling that

respondent was not a “seaman” within the meaning of

the Jones Act or under general maritime law. Id. at

23a. The court, however, provided respondent with an

opportunity to amend his complaint. /bid. Respon-

dent thereupon filed an amended complaint in the dis-

trict court under Section 5(b) of the LHWCA, 33

U.S.C. 905(b), seeking damages from petitioner as a

consortium, Pet. App. 3a; because her claims are derivative of

her husband’s, however, we use the term respondent in this

brief in the singular to refer to John Papai.

4

result of its alleged negligence as the owner/operator

of the tug. Pet. App. 4a; J.A. 82. In addition, respon-

dent filed a motion seeking reconsideration of the

court’s ruling on “seaman” status. The district court

denied that motion, but certified its summary judg-

ment ruling on the “seaman” issue for interlocutory

appeal under 28 U.S.C. 1292(b). Pet. App. 25a. The

court of appeals denied respondent’s petition for inter-

locutory appeal in October 1990. Id. at 4a.

4. After the district court’s summary judgment

ruling, respondent filed a claim for benefits under the

LHWCA. Pet. App. 4a. The case proceeded to hearing

before an administrative law judge (ALJ). Jd. at 32a;

20 C.F.R. 702.252, 702.331-702.351.2 Although peti-

tioner had obtained summary judgment in the Jones

Act proceeding on the ground that respondent was not

a “seaman,” it argued at the hearing that respondent

“may have been a Jones Act seaman” at the time of

his injury, and that, if so, he was excluded from

the LHWCA as a “member of a crew of [a] vessel,”

33 U.S.C. 902(3)(G). Pet. App. 34a-35a; see 20 C. F. R.

702.251.

In considering whether respondent came within the

LHWCA exception for members of a crew of a vessel,

the ALJ first considered whether to accord collateral

estoppel effect to the district court’s summary judg-

ment ruling in the Jones Act proceeding that respon-

dent was not a “seaman.” The ALJ declined to do so,

noting that the district court’s ruling was interlocu-

tory, in light of respondent’s claim under 33 U.S.C.

2 Although petitioner raised a question before the ALJ as to

respondent's coverage under the LHWCA, it apparently paid

respondent LHWCA benefits without a formal order from the

time of his injury until the ALJ hearing. See Pet. App. 34a.

5

905(b), which was still awaiting resolution by the

district court. Pet. App. 35a n.2. On the merits of the

coverage issue, the ALJ concluded that respondent

was covered by the LHWCA on the ground that he

was a land-based employee without a permanent con-

nection to a vessel, and therefore was not a “member

of a crew” within the meaning of the LHWCA exclu-

sion. Id. at 37a. After resolving other disputed is-

sues, the ALJ awarded respondent benefits under the

Act. Id. at 54a-55a. Because petitioner did not seek

review of the compensation order, id. at 4a, that order

became final 30 days after it was filed in the office of

the deputy commissioner (now called district direc-

tor, see 20 C.F.R. 701.301(a)(7)). 33 U.S.C. 921(a).

5. In the meantime, in August through September

of 1992, the district court conducted a trial on re-

spondent’s claim against petitioner under 33 U.S.C.

9050b).“ In December 1992, the district court ruled

that respondent had not established negligence on the

part of petitioner as operator of the tug, and it dis-

missed respondent’s amended complaint. Pet. App.

28a-29a. Respondent appealed from that final order of

the district court. Id. at 4a-5a.

A few months before the trial, the district court enter-

tained briefing on respondent’s seaman status under the Jones

Act, in light of the intervening decisions in McDermott Inter-

national, Inc. v. Wilander, 498 U.S. 337 (1991), and Southwest

Marine, Inc. v. Gizoni, 502 U.S. 81 (1991). The district court

affirmed its earlier ruling that respondent was not a seaman,

stating that respondent “did not have a ‘more or less perma-

nent connection’ with the vessel on which he was injured nor

did he perform substantial work on the vessel sufficient for

seaman status.” Pet. App. 27a (no citation for quotation in

original).

6

6. The court of appeals reversed, holding that the

district court improperly granted summary judgment

on the Jones Act and unseaworthiness claims. Pet.

App. la-19a. The court held that after this Court's

decision in Chandris, Inc. v. Latsis, 115 S. Ct. 2172

(1995), the appropriate inquiry is not whether respon-

dent had a permanent connection with a vessel, but

whether respondent’s “relationship with a vessel (or

group of vessels) was substantial in terms of duration

and nature, which requires consideration of the total

circumstances of his employment.” Pet. App. 7a. The

court held that it may be necessary to examine the

work performed by the employee while employed by

different employers during the relevant time period.

Such an examination was appropriate here, the court

concluded, because a group of employers who join to-

gether to obtain a common labor pool from a union

hiring hall is properly treated as a common employer;

employees customarily performing work that would

entitle them to seaman status should not, the court

reasoned, be deprived of that status because the indus-

try operates on a daily assignment system. /d. at 8a.

Moreover, the court observed, respondent worked for

petitioner on far more than one occasion and his work

with petitioner alone may have provided a sufficient

connection with petitioner’s vessels to establish his

status as a seaman. /bid. In assessing respondent’s

status, therefore, the court ruled that all work per-

formed by respondent as a deckhand must be consid-

ered, as well as work performed for other employers

during the relevant time period. Accordingly, the

court of appeals concluded that the district court had

erred in granting summary judgment, “since issues

of fact remained as to [respondent’s] connection with

the vessel.” Jd. at 9a.

7

The court of appeals also rejected petitioner’s con-

tention that the ALJ’s award of LHWCA benefits to

respondent precluded him from continuing to litigate

his claim for Jones Act remedies. The court noted

that, in Southwest Marine, Inc. v. Gizoni, 502 U.S. 81

(1991), this Court held that an employee who received

payments voluntarily made by his employer under the

LHWCA is not barred from prosecuting a Jones Act

claim. Pet. App. 10a. While this case differs in that

respondent received an adjudicated award of benefits,

the court noted Gizoni’s emphasis that an employer

will be credited for compensation previously paid, a

factor that is equally applicable in the case of compen-

sation paid pursuant to an adjudicated award. Ibid.

(citing Gizoni, 502 U.S. at 91-92).

The court of appeals observed that the parties are

on opposite sides of the seaman issue in the LHWCA

adjudication as compared with their positions in the

Jones Act suit. Pet. App. lla. The court expressed

concern about the “fairness in imposing * * * a bar

[on independent resolution of the seaman question]

where [the bar] could work [as] a disincentive on the

part of the employer to vigorously litigate its defense

in the LHWCA action.“ Jbid. The court also noted

that a preclusion rule would subject to a Jones Act

suit an employer who immediately and voluntarily

begins compensation benefits, while immunizing from

such a suit an employer who forces an employee to

seek compensation through administrative adjudica-

tion. Ibid. The court concluded that, in those circum-

stances, a bar to relitigation “would not serve the

purpose for which it is usually employed,” and the

court therefore extended the reasoning of Gizoni to

its “next logical step” by holding that the LHWCA

8

determination by the ALJ did not bar respondent’s

Jones Act claim. Id. at 12a.

Judge Poole dissented on the question of whether

respondent was a seaman. Pet. App. 13a-19a. He

would have adopted the reasoning of the ALJ who

decided respondent’s LHWCA claim: that respon-

dent’s assignment to any particular vessel or fleet of

vessels was “random, sporadic and transitory,” and

therefore lacking in the requisite connection to a ves-

sel that would entitle him to seaman status. Id. at 18a

(quoting id. at 37a).

SUMMARY OF ARGUMENT

I. Neither the doctrine of administrative collateral

estoppel nor 33 U.S.C. 905(a)’s exclusivity provision

precludes an independent determination in a Jones

Act suit of whether the plaintiff is a “seaman,” based

on a prior determination of non-seaman status in

an LHWCA proceeding. That conclusion is supported

by the unique interplay between the two remedial

schemes, the specific provision in the LHWCA to pro-

vide “credits” for recoveries under other remedial

schemes, and the unfairness of applying estoppel and

preclusion in this setting. If accepted, petitioner’s

position would force injured workers into an elec-

tion of remedies, which Congress did not intend to

impose in this remedial scheme. See, e.g., Southwest

Marine, Inc. v. Gizoni, 502 U.S. 81, 91-92 (1991).

II. The court below also properly determined that

the jury should be given the opportunity to decide

whether respondent was a “seaman” subject to Jones

Act coverage under the test enunciated in Chandris,

Inc. v. Latsis, 115 S. Ct. 2172, 2193-2194 (1995). That

test consists of two elements: whether the worker

“work[s] at sea in the service of the ship,” id. at 2190;

9

and whether the worker’s connection to the vessel is

sufficiently substantial in duration and time to war-

rant Jones Act protection as a seaman, ibid. The test

does not, as petitioner asserts (Br. 33), require “com-

mon ownership or control” of vessels as a prerequi-

site to establishing an identifiable “fleet” of vessels

upon which a person may work. Rather, as in this

case, employees hired through a union hiring hall

may have a sufficiently substantial connection to an

identifiable group of vessels to qualify for seaman

status. Because reasonable persons might differ on

that issue here, the jury should be permitted to evalu-

ate the facts and determine whether respondent quali-

fies under the Jones Act as a seaman.

ARGUMENT

I. THE ADMINISTRATIVE LAW JUDGE’S AWARD

OF BENEFITS TO RESPONDENT DOES NOT

PRECLUDE THE DISTRICT COURT IN THIS

JONES ACT SUIT FROM INDEPENDENTLY

DETERMINING WHETHER RESPONDENT IS A

“SEAMAN”

The court of appeals correctly held that respondent

is not barred from establishing his status as a “sea-

man” in this suit under the Jones Act, 46 U.S.C. App.

688(a), by virtue of the determination by the admin-

istrative law judge (ALJ) in the proceeding under the

Longshore and Harbor Workers’ Compensation Act

(LHWCA), 33 U.S.C. 901 et seq., that respondent was

not a “member of a crew,” 33 U.S.C. 902(3\(G). Peti-

tioner asserts that a contrary result is required by

the “exclusivity” provision of Section 5(a) of the

LHWCA, 33 U.S.C. 905(a), and the doctrine of admin-

istrative collateral estoppel. As petitioner acknowl-

edges (Br. 19-20), its Section 5(a) argument is broader

10

than its collateral estoppel argument because the

former would give preclusive effect to any formal

award of benefits under the LHWCA, whether by

adjudication or approved settlement, regardless of

whether the coverage issue was actually litigated or

expressly decided in the LHWCA proceeding. Peti-

tioner’s collateral estoppel argument would preclude

Jones Act suits only when there has been actual

litigation before the ALJ of the “member of a crew”

issue. Pet. Br. 20. Both approaches purport to derive

from the statutory language and purposes of the

LHWCA. Because petitioner’s broader preclusion

argument rests on many of the same erroneous as-

sumptions underlying its more limited collateral es-

toppel argument, we address estoppel first.

A. Respondent Is Not Collaterally Estopped From

Asserting His “Seaman” Status Based On The

ALJ's Ruling In The LHWCA Proceeding

Petitioner suggests (Pet. Br. 22) that the doctrine

of administrative collateral estoppel should apply to

bar consideration of the “seaman” status of the plain-

tiff in a Jones Act suit if the “formal award of

LHWCA benefits (whether by an ALJ hearing or

approval of a § &(i) settlement)” results in LHWCA

worker status being “expressly found.” That conten-

tion lacks merit.

1. The principle of collateral estoppel generally ap-

plies to final determinations of an administrative body

when it has acted in a judicial capacity and decided

“issues of fact properly before it which the parties

have had an adequate opportunity to litigate.” Asto-

ria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104,

107 (1991). Because Congress is understood to legis-

late against a background of common law adjudicatoi y

11

principles, Congress is presumed to expect that such

estoppel will apply unless a statutory purpose to the

contrary is evident. Id. at 108. The presumption in

favor of administrative collateral estoppel, however, is

“lenient,” id. at 112, applying only where Congress

has failed “expressly or impliedly” to evince any in-

tention on the issue, id. at 110. Moreover, the doc-

trine’s “suitability may vary,” according to various

factors, including “the specific context of the rights

at stake.” Ibid.; see also Restatement (Second) of

Judgments § 28(5)(c), at 273-274 (1982) (issue preclu-

sion is inappropriate where the party to be precluded

did not have an adequate incentive in the initial action

to litigate vigorously his present position).

2. a. The specific context of the rights at stake in

this case—the unique interplay between the LHWCA

and the Jones Act—makes it highly unlikely that

Congress intended a categorical rule that would give

collateral estoppel effect to an administrative finding

of LHWCA coverage, thereby foreclosing an inde-

pendent determination by the jury in the Jones Act

suit that the injured maritime worker was actually a

Jones Act seaman.

This Court has established that the two statutes

are mutually exclusive in the sense that a “member

of a crew,” as excluded from LHWCA coverage by

33 U.S‘. 902(3)(G), is synonymous with a “seaman,”

who is covered under the Jones Act, 46 U.S.C. App.

688(a). See Chandris, Inc. v. Latsis, 115 S. Ct. 2172,

2183-2184 (1995); McDermott Int'l, Inc. v. Wilander,

498 U.S. 337, 347 (1991). Notwithstanding that recog-

nition of the mutual exclusivity of the two Acts, how-

ever, the line of demarcation beiween them is often

unclear, and there is, “in a practical sense, a ‘zone of

uncertainty’ inevitably connecting] the two Acts.”

12

Simms v. Valley Line Co., 709 F.2d 409, 411 (5th Cir.

1983) (guoting McDermott, Inc. v. Boudreaux, 679

F. 2d 452, 459 (5th Cir. 1982)); see also Chandris, 115

S. Ct. at 2184. That confusion is compounded by the

rule that “the LHWCA and its exclusionary provision

do not apply to a harbor worker who [although within

an enumerated LHWCA vee pation] is also a ‘member

of a crew of any vessel,’ a phrase that is a ‘refinement’

of the term ‘seaman’ in the Jones Act.” Southwest

Marine, Inc. v. Gizoni, 502 U.S. 81, 87 (1991) (quoting

Wilander, 498 U.S. at 347) (emphasis added). Given

the historical uncertainty between the two remedial

schemes for maritime workers, it would be inappro-

priate to infer a congressional intent that a deter-

mination by an ALJ under the LHWCA must be given

collateral estoppel effect in a Jones Act suit.

b. The text of the LHWCA supports the view that

Congress did not intend for categorical rules of estop-

pel to apply in this context. Cf. Astoria Federal, 501

U.S. at 110 (administrative collateral estoppel inap-

propriate when the federal statute “carries an impli-

cation” against preclusion). As this Court pointed

out in Gizoni, Section 3(e) of the LHWCA, 33 U.S.C.

903(e), demonstrates that “the LHWCA clearly does

not comprehend such a preclusive effect.” 502 U.S. at

91. Section 3(e) provides that any amounts paid to an

employee “pursuant to * * * section 688 of title 46,

Appendix (relating to recovery for injury to or death

of seamen), shall be credited against any liability

imposed” under the LHWCA. That provision of the

LHWCA clearly contemplates that, notwithstanding

the mutual exclusivity of the two schemes, an em-

ployer may have incurred concurrent liability under

13

the Jones Act and the LHWCA.* The credit provision

of the LHWCA, and a similar credit doctrine devel-

oped under the Jones Act (see Pet. Br. 29), provide a

practical solution to any problems of inconsistent

adjudications: they in large measure eliminate double

recovery by the employee. Moreover, those credit-

ing arrangements underscore that the LHWCA does

not give “primary jurisdiction” to the administrative

scheme. See Gizoni, 502 U.S. at 90-91.

The collateral estoppel rule petitioner urges is fur-

ther undermined by Section 22 of the LHWCA, 33

U.S.C. 922, which permits the deputy commissioner,

“{u)pon his own initiative, or upon the application of

any party in interest * , on the ground of a

change in conditions or because of a mistake in a

determination of fact,” to issue a new order terminat-

ing, continuing, or modifying a compensation award,

within one year of a denial of an award or within one

year of the last payment of compensation if an award

was made. This Court has held that the authority

to reopen a decision under Section 22 is not limited

to cases involving new evidence or changed circum-

stances, but rather vests broad discretion in the

deputy commissioner to correct mistakes of fact,

“whether demonstrated by wholly new evidence, cu-

mulative evidence, or merely further reflection on the

Section 30e) of the LHWCA, 33 U.S.C. 903 (e), states:

Notwithstanding any other provision of law, any amounts

paid to an employee for the same injury, disability, or death

for which benefits are claimed under {the LHW CA] pursu-

ant to any other workers’ compensation law or [the Jones

Act] (relating to recovery for injury to or death of seamen)

shall be credited against any liability imposed by [the

LHWCAI.

14

evidence initially submitted.” O’Keefe v. Aerojet-

General Shipyards, Inc., 404 U.S. 254, 255, 256 (1971)

(per curiam); see also Metropolitan Stevedore Co. v.

Rambo, 115 S. Ct. 2144, 2146 (1995). Administrative

decisions awarding or denying compensation under

the LHWCA therefore are not accorded the sort of

finality under the LHWCA itself that could, in turn,

furnish a basis for imposing issue preclusion outside

that special statutory scheme—in tort suits in fed-

eral district court under the Jones Act.

c. Because of the uncertainties of coverage under

the two remedial schemes, it is not at all surprising

that employees routinely pursue concurrently both

an LHWCA compensation claim and a Jones Act tort

claim. Nor, given the existence of the credit doc-

trines’ protection to the employer against an unfair

double recovery by the worker, is it unfair that they

do so. By permitting parallel proceedings, Congress

can be presumed to have anticipated that claim-

ants would be put in the position of arguing for crew-

member status in the Jones Act proceeding and for

non-crew-member status in the LHWCA proceeding,

and that the employer could be expected to defend

with inconsistent positions on coverage as well. Con-

gress can also be presumed to have been aware that,

because in each case the parties must weigh the

likelihood of a potentially larger recovery under the

Jones Act against the generally greater certainty

of a smaller, no-fault compensation order under the

LHWCA, both sides do not always have an incentive

to litigate the coverage issue fully and with equal

vigor.

The lack of incentive to litigate coverage as aggres-

sively as possible is most likely to occur when the

employer, although contesting LHWCA coverage,

e--

15

would nonetheless actually prefer LHWCA liability

to Jones Act liability; in that situation, the employee

may well, by contrast, actually prefer the prospect

of recovery under the Jones Act, rather than the

LHWCA, even though he has filed a claim under the

LHWCA. Neither party can be assumed to have a real

incentive to litigate vigorously a position that is the

reverse of that party’s position in the Jones Act pro-

ceeding. Under widely recognized principles of issue

preclusion, a party is not precluded from relitigating

the same position it lost in a prior proceeding if the

party’s incentive to litigate vigorously that position

in the initial action was inadequate. See Restatement

(Second) of Judgments § 28(5)(c) (1982). A fortiori, a

party should not be precluded from litigating a posi-

tion where, as here, he did not espouse that position in

the earlier proceeding. Indeed, the position that peti-

tioner seeks to preclude respondent from advancing

(i.e., that respondent was a seaman) appears to have

been merely suggested to the ALJ by petitioner, who

of course is now arguing for the opposite result in the

Jones Act suit. See Pet. App. 35a (noting that peti-

tioner argued that “claimant may have been a Jones

Act seaman”).

This case thus vividly illustrates why the applica-

tion of collateral estoppel principles in the Jones

Act/LHWCA context would be problematic. Here,

respondent filed his Jones Act suit first and was met

with petitioner’s defense that he was not a “seaman.”

The district court granted summary judgment in

favor of petitioner on that issue, but the court of ap-

eals denied respondent’s petition for an interlocutory

appeal. It was only at that point that respondent in

fact filed an LHWCA claim. See Pet. App. 4a. At that

point, it was to be expected that petitioner would

16

accede to LHWCA coverage, considering its position

in the Jones Act proceeding and its payment of

LHWCA benefits from the time of injury. Instead, it

raised the coverage issue with the suggestion that

respondent may not have been a covered employee

under the LHWCA after all. If preclusive effect is

accorded in the continuing Jones Act case to the

ALJ’s non-crew-member finding, petitioner will have

effectively forced respondent to a disadvantageous

election of remedies.’ Thus, the court of appeals was

correct to view adoption of a no-preclusion rule in

those circumstances as merely “extending the rea-

soning of the Gizoni Court to the next logical step.”

Pet. App. 12a.“

5 The limitations period for the filing of an LHWCA claim is

tolled during the pendency of a Jones Act suit that is unsuc-

cessful because the plaintiff lacks seaman status. 33 U.S.C.

913(d). As a practical matter, however, it may be exceeding-

ly difficult for an injured worker to refrain from filing an

LHWCA claim, particularly where the employer’s position in

Jones Act litigation leads the worker to believe that he or she

would receive benefits under the LHWCA. G. Gilmore & C.

Black, The Law of Admiralty 435 (2d ed. 1975) (arguing against

preclusion and asking: “How is an injured worker, who Is

arguably a Jones Act seaman, supposed to live and support his

family during the months or years which will elapse before his

damage recovery, if his Jones Act action is successful, becomes

collectible?”).

6 In our Gizoni brief, we expressed the view, in support of

the argument that acceptance of voluntary LHWCA payments

does not preclude subsequent litigation of a Jones Act claim,

that “(uJnder established principles of issue preclusion, only an

adjudication under the LHWCA that an employee is not a crew

member precludes litigation of a Jones Act claim.” Brief for

the United States as Amicus Curiae Supporting Respondent at

23 (No. 90-584) [filed May 15, 1991}. We indicated that such an

adjudication must satisfy] the prerequisites for issue preclu-

17

3. a. The election-of-remedies defect in petitioner's

position is not limited to the sequence of events in

this case alone. To apply collateral estoppel in this

context would force injured workers as a general

matter into an election of remedies that Congress did

not intend. Gizoni, 502 U.S. at 92 n.5. If the first

tribunal to determine the injured worker’s status has

preclusive effect on the other, as petitioner posits

(Br. 8, 26), then the claimant must choose whether

to pursue the more certain, but lower LHWCA bene-

fits over the potentially far greater, but less certain

Jones Act recovery. As this Court has recognized on

numerous occasions, Congress did not intend in the

LHWCA to force injured workers into an election of

remedies. See, e. g., Gizoni, 502 U.S. at 92 n.5: Sun

Ship, Inc. v. Pennsylvania, 447 U.S. 715, 722 (1980).

sion” to have that effect, without elaborating on what those

prerequisites are or when they are deemed satisfied. Id. at 25.

As explained above, we believe that each party’s conflicting

incentives in the LHWCA and Jones Act proceedings indicate

that an important prerequisite for the application of issue pre-

clusion—an adequate incentive to litigate—is absent, both in

this case and more generally. For that reason, and in view of

the offset and other features of the LHWCA and the other rea-

sons set forth in the text, it is our more fully considered view

that issue preclusion should not, as a general rule, be applied in

this setting. Compare Astoria Federal, 501 U.S. at 114 (noting

advantages of general rule of non-preclusion over case-by-case

determination of adequacy of prior opportunity to litigate in

administrative forum).

Congress expressed its disapproval of election of remedies

in a similar context in 1959, when it deleted an LHWCA re-

quirement that an injured worker make an election between

compensation under the LHWCA and the right to bring an

action against a third party (the right to bring such an action

was automatically assigned to the employer if the compensation

was paid under a formal award). See generally Pallas Ship-

18

b. In addition, as the court of appeals noted (Pet.

App. lla), according preclusive effect to an admin-

istrative adjudication under the LHWCA that a claim-

ant was not a member of a crew would leave employers

who immediately and voluntarily begin compensation

payments subject to a Jones Act suit under this

Court’s ruling in Gizoni, while immunizing those

who resist an employee’s LHWCA claim and succeed

in forcing adjudication of the issue. In order to en-

sure prompt payment of benefits to injured workers,

the LHWCA imposes stringent penalties on an em-

ployer who fails to pay benefits to an injured worker

without filing a notice stating the grounds upon

which the employer contends the employee is not

entitled to benefits. 33 U.S.C. 914(d) and (e). If peti-

tioner prevails in this case, payment will frequently

be delayed to an employee who is on the border

between Jones Act and LHWCA coverage. An em-

ployer will have a strong incentive to controvert the

employee’s LHWCA claim, rather than pay voluntary

benefits, even if it believes the injured worker to be

entitled to such a remedy.

Creating such a disincentive to voluntary payment

would impair a central purpose of the LHWCA, which

is to foster prompt payment of compensation and

medical benefits to injured workers. See 33 U.S.C.

914(a); H.R. Rep. No. 1767, 69th Cong., 2d Sess. 19-20

(1927). Such a ruling would also deny a worker in-

jured in circumstances that might give rise to Jones

ping Agency, Ltd. v. Duris, 461 U.S. 529, 537 (1983). Congress

deleted that requirement when it became apparent that injured

workers were often compelled, as a practical matter, to take

compensation in order to meet their living expenses, and there-

fore to relinquish their third-party tort actions. /bid.; Bloomer

v. Liberty Mutual Ins. Co., 445 U.S. 74, 80 (1980).

19

Act coverage the statutory right to a jury trial of the

issue of whether he is, in fact, a seaman. Invoking

collateral estoppel, and encouraging employers to

controvert claims for the sole purpose of cutting off

the claimant’s possibly meritorious Jones Act litiga-

tion, thus introduces distortions into the system for

compensating injured maritime workers and impedes

the purposes of both statutes.

B. The LHWCA “Exclusivity Clause” Does Not

Require That The ALJ Decision Be Treated As

A Bar To Respondent’s Jones Act Claim

We have argued above that Congress did net int

for LHWCA determinations to — collateral po

toppel effect in Jones Act suits. It follows that peti-

tioner’s broader argument—that any formal LHWCA

award (whether litigated or not) precludes a Jones

Act suit—must also fail. Nowhere in the LHWCA or

the Jones Act has Congress provided for the determi-

nations in proceedings under one Act to be given pre-

clusive effect in proceedings under the other. Peti-

tioner bases its argument for the preclusive effect of

determinations in LHWCA proceedings on a provision

which states that “[t]he liability * * * prescribed in

section 904 of this title shall be exclusive and in place

of all other liability of such employer to the employee

* * * and anyone * * * entitled to recover damages

from such employer at law or in admiralty on account

of such injury,” so long as the employer has complied

with the Act’s approved insurance requirement. 33

U.S.C. 905(a). Petitioner contends (Br. 19-20) that, by

virtue of this “exclusivity” provision, a formal award

of benefits under the LHWCA “per se preclude[s] fur-

ther seaman remedies.” That argument is based on a

20

fundamental misunderstanding of the function of the

exclusivity provision.

1. The exclusivity of the LHWCA as the sole fed-

eral statute under which an employer may be held

liable for compensating covered workers for their

work-related injuries is not in question; rather, the

issue is whether an inference should be drawn from

that provision that a coverage determination in an

LHWCA adjudication must be given preclusive effect.

Section 5(a) of the LHWCA, 33 U.S.C. 905(a), estab-

lishes that if an injury or death is covered by the

LHWCA, then the insured employer cannot be held

liable for the injury or death under the Jones Act,

general maritime law, or state common law, because

the employer’s liability under the LHWCA “shall be

exclusive” of actions in tort, at law or in admiralty

(except the rights preserved in Section 5(b) of the

LHWCA, 33 U.S.C. 905(b)). Section 5(a) does not by

its terms foreclose the basic coverage question from

also being decided in the context of the issues raised

in the non-LHWCA action. Thus, the insured em-

ployer may interpose an affirmative defense of cover-

age under the LHWCA as a predicate for dismissal of

a tort action brought under a remedial scheme other

than the LHWCA.* Cf. 2A A. Larson & L. Larson,

8 The role of Section 5(a) is diminished in Jones Act suits

because a plaintiff must establish his “seaman” status as part of

his affirmative case, a showing that also affirmatively estab-

lishes that he is excluded from the LHWCA as a “member of a

crew.” Thus, because the exclusivity of the schemes is imple-

mented by their coverage criteria, a Jones Act defendant has

no need for an affirmative defense based on LHWCA coverage.

That is not true, however, of an LHWCA employer who is a

defendant in a common law tort or general maritime action

brought by a putative LHWCA employee.

21

The Law of Workmens’ Compensation § 65.12 (1996)

(characterizing exclusivity clauses of workers’ com-

pensation Statutes as creating affirmative defenses to

tort actions). But Section 5(a) provides no textual

support for petitioner’s contention that a court enter-

taining the plaintiff’s tort action may not independ-

ently determine whether the defendant is an “em-

ployer” subject to liability as “prescribed in section

904” of the LHWCA for the pertinent injury and, in-

stead, must be bound by a prior determination on that

question by an LHWCA adjudicator.

2. Congress did not intend for the exclusivity of

employer liability under the LHWCA to be absolute

as other LHWCA provisions make clear. The Act

nullifies exclusivity when an employer fails to “se-

cure the payment of compensation,” that is, by failing

to obtain insurance or to receive authorization from

the Secretary to pay such compensation directly. See

° The LHWCA differs from the Federal Employees’ Com-

pensation Act (FECA), 5 U.S.C. 8101 et seg., which not only

contains an “exclusive remedy” provision, 5 U.S.C. 8116(c), but

also provides that the action of the Secretary of Labor in allow-

ing or denying payment under FECA is “final and conclusive

for all purposes and with respect to all questions of law and

fact,” and shall not be subject to judicial review, see 5 U.S.C.

8128(b)(1) and (2). Accordingly, where there is a substantial

question of FECA coverage, courts will stay or dismiss actions

under the Federal Tort Claims Act, 28 U.S.C. 2671 et seq., until

the Department of Labor determines whether FECA applies.

See, e.g., DiPippa v. United States, 687 F.2d 14, 20 (3d Cir.

1982). The LHWCA, by contrast, contains no provision declar-

ing the Secretary’s decision awarding or denying LWHCA

benefits “final and conclusive” for “all purposes” and with re-

spect to “all questions of law or fact,” and it provides for,

rather than forecloses, judicial review. See 33 U.S.C. 921(c);

Gizoni, 502 U.S. at 90-91.

22

33 U.S.C. 904, 932(a) and (b). In addition, the Act

authorizes negligence actions by LHWCA-covered

employees (except those employed to provide ship-

building, repairing, or breaking services) against em-

ployers as owners and operators of a vessel. 33 U.S.C.

905(b). Given those explicit textual limitations on the

scope of Section 5(a), it would be anomalous to con-

strue it broadly to encompass preclusive effects not

enumerated by Congress. The credit provision of

Section 3(e), discussed at pp. 12-13, supra, further

supports the conclusion that Section 5(a) should not

be read expansively to preclude pursuit of other reme-

dies. See also Sun Ship, 447 U.S. at 722 (declining

to “construe § 905(a) to exclude remedies offered by

other jurisdictions” and holding that claimants may

in some circumstances obtain awards under both

a state workers’ compensation scheme and the

LHWCA).

3. Petitioner’s theory also runs directly counter

to this Court’s decision in Gizoni, which specifically

rejected the argument that Section 5(a) precluded a

claimant from bringing a Jones Act suit after having

voluntarily received LHWCA benefits. 502 U.S. at 91-

92 & n.5. Although the exclusivity provision imple-

ments the quid pro quo underlying workers’ com-

pensation schemes, in which the employer assumes

liability without fault in exchange for relief from

potentially larger damage verdicts, Gizoni makes

clear that LHWCA “exclusivity” imposes no election

of remedies on employees.

Petitioner acknowledges (Br. 16) Gizoni’s holding,

but contends nonetheless that the Court’s reasoning

does not extend to a “formal award,” even if that

23

award is based on a settlement of the claim.“ Section

5(a), however, does not distinguish between payments

made without an award and formal awards, or between

settlements and adjudications; it speaks only in terms

of an employer’s “liability.” 33 U.S.C. 905(a). Conse-

quently, there is no textual support for petitioner’s

attempt to limit Gizoni’s holding that Section 5(a)

does not mandate issue preclusion in a Jones Act suit.

; Moreover, the reasons given by Gizoni for permit-

ting a claimant to proceed notwithstanding his accep-

tance of voluntary payments undermine petitioner’s

broad theory of LHWCA exclusivity. Gizoni em-

phasized the ability to credit employers under the

LHWCA for amounts previously paid. See 33 U.S.C.

903(e). That provision protects employers against

having to pay twice under different remedial schemes

for the same injury." Although the Court noted

that the question of coverage is not actually liti-

gated when payments are made voluntarily, its re-

Settlements under the LHWCA must be approved by a

district director of the Office of Workers’ Compensation Pro-

grams (OWCP) or by an ALJ. See 33 U.S.C. 908(i)(1). Such

an approved settlement is considered a formal award because it

is embodied in a compensation order. See, ¢.g., Reid v. Uni-

versal Maritime Serv. Corp., 41 F.3d 200, 201 (4th Cir. 1994).

There is no requirement that parties, when obtaining approval

for the agreement, establish that the claimant is an “employee”

within the meaning of Section 2(3) of the LHWCA, 33 U.S.C.

902(3). See 20 C.F.R. 702.242 (information necessary for a com-

plete settlement application).

4 In discussing this credit provision, the Court in Gizoni

(502 U.S. at 91-92) also relied on G. Gilmore & C. Black, The

Law of Admiralty 435 (2d ed. 1975), for the accepted view that

“the compensation payments [made under the LHWCA] will be

= deducted from [a] damage recovery” under the Jones

ct.

24

liance on the credit provision as a statutorily rec-

ognized equitable counter-balance to the absence of

an election-of-remedies requirement applies equally

to a formal award under the LHWCA. See ibid.

(emphasis added) (“amounts paid * * * shall be cred-

ited against any liability imposed by [the LHWCA]”).

The Court also emphasized that the question of cov-

erage is not actually litigated when payments are

made voluntarily. That ground for inapplicability of

exclusion principles also fully applies to virtually

any settlement approved under Section 8(i) and to

formal adjudications when the issue of whether the

claimant meets the criteria for LHWCA coverage

is not litigated. Thus, petitioner’s broad interpreta-

tion of Section 5(a), under which a formal LHWCA

award of any sort precludes a Jones Act action, is

difficult to square with the reasoning of Gizoni. See

Figueroa v. Campbell Indus., 45 F.3d 311 (9th Cir.

1995) (declining, based on Gizoni, to accord preclusive

effect to LHWCA compensation award embodying set-

tlement); but see Sharp v. Johnson Bros. Corp., 973

F.2d 423 (5th Cir. 1992), cert. denied, 508 U.S. 907

(1993).

Il. RESPONDENT’S SEAMAN STATUS IS A

MIXED QUESTION OF LAW AND FACT THAT

SHOULD NOT BE KEPT FROM A JURY JUST

BECAUSE PETITIONER EMPLOYED HIM ON

A DAILY BASIS FROM A UNION HIRING HALL

The court below correctly decided that the district

court should not have granted summary judgment on

the issue of the employee’s seaman status, and prop-

erly remanded for further proceedings. In defining

the prerequisites for Jones Act coverage, this Court

has, in its recent cases, “eschew[ed] the temptation to

25

create detailed tests to effectuate the congressional

purpose” of distinguishing between sea-based and

land-based maritime employees. Chandris, 115 8. Ct.

at 2190. It has instead recognized that seaman status

is a mixed question of law and fact in which “it is the

court's duty to define the appropriate standard,” but

liJf reasonable persons, applying the proper legal

standard, could differ as to whether the employee was

4 ‘member of a crew,’ it is a question for the jury.”

Ibid. (quoting Wilander, 498 U.S. at 356).

g The proper legal standard has two parts: “First,

5 ‘an employee's duties must contribute] to the

function of the vessel or to the accomplishment of its

mission.“ * * Second, and most important for our

purposes here, a seaman must have a connection to a

vessel in navigation (or to an identifiable group of

such vessels) that is substantial in terms of both its

duration and its nature.” Chandris, 115 S. Ct. at 2190

(citation omitted). The first requirement encompas-

ses “‘[ajll who work at sea in the service of a ship’

land are therefore} eligible for seaman status.” Jbid.

(citation omitted). The second requirement aims fun-

damentally “to give full effect to the remedial scheme

created by Congress and to separate the sea-based

maritime employees who are entitled to Jones Act

protection from the land-based workers who have only

a transitory or sporadic connection to a vessel in

navigation, and therefore whose employment does not

regularly expose them to the perils of the sea.” Jbid.

This case concerns the second of the foregoing

requirements—whether respondent had the requisite

connection to a vessel or “identifiable group of such

vessels.” In our view, “reasonable persons, applying

the proper legal standard, could differ as to whether”

respondent met that requirement, considering that he

26

had for some time worked on vessels in navigation as

a deckhand or in ship maintenance (e.g., painting) and,

indeed, had performed considerable work for the same

employer during the two months before the injury.

Chandris, 115 S. Ct. at 2190 (citation omitted). This

is not a case, for instance, in which the worker hald]

a clearly inadequate temporal connection to vessels in

navigation,” permitting the court to grant summary

judgment for the employer. Id. at 2191; see ibid. (“A

maritime worker who spends only a small fraction of

his working time on board a vessel is fundamentally

land-based and therefore not a member of the vessel’s

crew, regardless of what his duties are.”). Rather,

during “the period covered by [respondent’s asserted]

maritime employment,” his connection to vessels was

arguably “substantial in both duration and nature.”

Ibid.

The court of appeals held that, in applying that

requirement, employers who join together to obtain a

common labor pool through a union hiring hall may be

considered a common employer. Pet. App. 8a. Hence,

the vessels owned or operated by such employers and

staffed through the union hiring hall could be an

identifiable group of vessels for purposes of the sea-

man test. In our view, the court’s pragmatic and rea-

sonable approach properly takes into account the

realities of the employment system in which respon-

dent worked. Cf. Imel v. Laborers Pension Trust

Fund, 904 F.2d 1327, 1333 (9th Cir.) (contractors who

use union hiring hall are appropriately considered

single “employing unit” for purposes of rights guar-

anteed to returning servicemembers by the Veter-

ans Reemployment Rights Act), cert. denied, 498 USS.

939 (1990); see generally D. Robertson, The Law of

Seaman Status Clarified, 23 J. Mar. L. & Com. 1, 27

27

(1992) (suggesting that seaman status be gauged b

the traditional dangers attendant to work on —

vessels and to facing the perils of the sea). Indeed,

if such a pragmatic analysis is discarded, it would

lead to the conclusion that petitioner operates its

boats without any seamen, since it does not hire any

“permanent” crew and relies instead on hiring hall

referrals. See Pet. App. 3a.

Petitioner correctly observes (Br. 33-34) that some

courts of appeals have required “common ownership

or control” of vessels as a prerequisite of an “identifi-

able fleet.” But see Fisher v. Nichols, 81 F.3d 319, 323

(2d Cir. 1996) (“We do not read Chandris as requiring

that a Jones Act plaintiff must necessarily

have a substantial connection to a particular vessel

owned by that employer or to a group of vessels under

common ownership or control of that employer.”).

There is, however, no inherent reason to define the

requisite connection of the maritime worker to an

“identifiable group” of vessels in navigation—the so-

called “fleet doctrine”—solely in terms of the prop-

erty relationship between the vessels and their owner

or owners. Cf. Bertrand v. International Mooring &

Marine, Inc., 700 F.2d 240, 245 (5th Cir. 1983) (com-

mon ownership or control not required where its ab-

sence is “determined by the employer, not the nature

of the claimants’ work”), cert. denied, 464 U.S. 1069

(1984).” In this case, the employee had for some time

® The ownership of a vessel is not always readily known or

apparent. The possibility of joint ownership renders ownership

a particularly poor proxy for determining the seaman status of

an employee. For instance, if an employee works on two ves-

sels, one owned by A + B, and the other owned by A + C, would

that arrangement satisfy a common ownership test for pur-

poses of Jones Act coverage? And, if so, would the employee

28

worked for an identifiable group of vessels; the fact

that he was a casual worker, hired on a daily basis

through a union hiring hall acting as an employment

agency for a number of sea-based employers, should

not be dispositive in determining whether he was a

crew member entitled to Jones Act protection.

Employees who have been referred through a union

hiring hall to work on a vessel are like their counter-

parts who may have been hired on a more permanent

basis by a single employer, but who also commute

daily to and from their work on vessels tied up in dock

or return to port each night after plying the inland

harbors or coastal waters; they fall somewhere in the

middle of the “spectrum ranging from the blue-water

seaman to the land-based longshoreman.” Chandris,

115 S. Ct. at 2184 (citation omitted). Cf. id. at 2188

(describing Gizoni as holding that Jones Act may be

available to ship repairman employed by shipyard who

spends portion of time working on shore but rest of

time at sea). Where reasonable persons might differ,

the status of such a worker as a seaman should prop-

erly be decided by a jury based on its assessment of

the substantiality of the claimant’s connection with

the group of vessels. See id. at 2190. x :

In any event, the cases upon which petitioner relies

(Br. 34) do not expressly consider whether an identifi-

able group of vessels could be defined by a hiring hall

employment system, such as the one utilized by peti-

ioner. Moreover, petitioner incorrectly asserts (Br.

lose seaman status if he or she then also works on a third vessel

owned by B + C, or by B alone? Or, to give another example, if

two vessels are both owned by A, does an employee who has

worked on those vessels lose seaman status if A sells one of the

vessels to B?

29

37) that the court of appeals’ decision in this case

allows consideration of a “claimant’s work history

with all his employers”; the court’s reference to

“work performed for other employers,” Pet. App. 8a,

in context, refers to employers making use of the

union hiring hall.

For much the same reason, the lower court’s ruling

is entirely consistent with Chandris’s recognition

that, “[wJhen a maritime worker’s basic assignment

changes, his seaman status may change as well.” 115

S. Ct. at 2191. The court of appeals’ analysis properly

rejects the notion that, in the employment system. in

which respondent worked, each referral from the

hiring hall must be considered a discrete assignment

that interrupts the worker’s tenure as a seaman.

Rather, if the worker shows a consistent pattern of

hiring hall referrals to seaman duties, a jury should

have the discretion to conclude that the worker dem-

onstrates a “regular and continuous, rather than in-

termittent, commitment of [his] labor to the function”

of the vessels of participating employers. bid.

The court of appeals thus correctly remanded for

further consideration of respondent’s status as a sea-

man, rather than affirming the summary judgment in

favor of petitioner on that issue. Because ownership

status is not dispositive of “the ultimate inquiry [of]

whether the worker in question is a member of the

vessel’s crew or simply a land-based employee who

happens to be working on the vessel at a given time,”

Chandris, 115 S. Ct. at 2191, this Court should reject

the proposition that employees on vessels who hire

themselves out through hiring halls cannot, as a

matter of law, be members] of a crew,” no matter

the nature or duration of their work on one or more

vessels or their exposure to the perils of the sea.

30 31

A rule foreclosing coverage in such circumstances

would frustrate the purposes of the Jones Act because 3 a

it would permit employers to structure their assign- The decision of the court of appeals should be

ment practices so that their vessels have no “perma- affirmed.

nent” crew, and therefore no seamen. That sort of Respectfully submitted.

evasion of Jones Act coverage through “arrange-

ments with third parties regarding the vessel’s opera-

WALTER DELLINGER

tion or * * * the manner in which work is assigned,” Acting Solicitor Genera

Bertrand, 700 F.2d at 245, should not be permitted. J. DAVITT MCATEER — —

Accordingly, the Court should not add a common Acting Solicitor of Labor Deputy Solicitor General

ownership or control” requirement to the two-part ALLEN H. FELDMAN DAVID C. FREDERICK

Associate Solicitor Assistant to the Solicitor

test for seaman status that it recently articulated in N

Chandris.® ATHANIEL I. SPILLER _ General

; Deputy Associate Solicitor

MARK S. FLYNN

Senior Appellate A

Department of —

DECEMBER 1996

8 The court below alternatively held that the employee’s

work for petitioner alone—which it described as “far more than

a single occasion,” “a dozen occasions over the two and a half

month period,” and “a substantial period of time”—“may in

itself provide a sufficient connection” to permit a finding of

seaman status. Pet. App. 8a & n.3. We agree that the facts of

this case warrant submission of that issue of respondent’s status

to the jury as well. Thus, the court of appeals’ decision should

be affirmed even if this Court were to conclude that only evi-

dence pertaining to respondent’s work on petitioner’s vessels

should be considered.