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

—a

“de

(0) Supreme Coury U.S.

FILE D

No. 95-1621

996

In The CLERK

Supreme Court of the United States

October Term, 1996

°

HARBOR TUG AND BARGE COMPANY,

Petitioner,

-against-

JOHN PAPAI AND JOANNA PAPAL,

Respondents.

¢

On Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

.

BRIEF OF UNITED BROTHERHOOD OF

CARPENTERS AND JOINERS OF AMERICA

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

°

Joun T. DeCarto

General Counsel

United Brotherhood of Carpenters

and Joiners of America

DeCario, Conner & SELvo

500 South Virgil Ave.

Los Angeles, California 90020

(213) 738-7959

JouN R. HittsMAN

McGuInn, HititsMAN & PALEPSKY

535 Pacific Avenue

San Francisco, California 94133

(415) 421-9292

Attorneys for the

United Brotherhood of Carpenters

and Joiners of America

COCKLE LAW BRIEF PRINTING CO, 225-6964

OR CALL COLLECT (402)

QUESTIONS PRESENTED

(1) Can a vessel-based harbor-worker sue for sea-

man’s remedies after an Administrative Law Judge has

formally determined that he was an LHWCA beneficiary,

and therefore not a “member or a crew” at the time of his

injury?

(2) Can a “casual” maritime worker, injured in the

course of an ordinary union dispatch, base his seaman

status on his overall work history out of that union, or

must he limit the inquiry to his specific assignment at the

moment of injury?

ii

PARTIES TO THE ACTION

Plaintiffs / Respondents:

John Papai and Joanna Papai

Defendant / Petitioner:

Harbor Tug and Barge Company

TABLE OF CONTENTS

Page

Questions Presented ...... 2... cece i

PUBUED GD Gee AGO 2. nc cccccccccccccccccccccccccs ii

SE A I cazencetcccencesescoencsececeones iii

Table of Authorities ....... 2... 6... 66 ccc cece Vv

Interest of the Amicus Curiae................664.. 1

Summary of Argument ........ 6... 6.66. cece cane 2

PPPPPOTTTTITITITITITITTTT TELE TT ee 7

I. Union Maritime Workers, Like John Papai,

Should be Able to Exercise Their Traditional

Statutory and Common Law Rights as Seamen

Even After an Administrative Law Judge has

Awarded Them Workers’ Compensation Bene-

SD WR GP IUDs cn cccccccccccccvccces 7

1. Despite the Statutes’ Mutual Exclusivity,

the Maritime Law Has Always Permitted

Vessel-Based Harbor Workers to Pursue

Parallel Jones Act and LHWCA Claims for

GD BD BD cc ccccccccccccccccccccess 7

2. The Sweeping Conclusion in Sharp v. John-

son Bros. Corp., that Any LHWCA Award

Automatically Bars a Subsequent Jones Act

Claim, Does Not Deserve the Supreme

Court’s Imprimatur ...................... 12

3. Nor Should a Fully Litigated LHWCA

Award Necessarily Collaterally Estop Ves-

sel-Based Harbor Workers Like John Papai

from Pursuing their Jones Act Rights .... 16

iv

TABLE OF CONTENTS - Continued

Page

4. The Requirements of “Mutual Exclusivity”

Are Met by the Credit Mechanisms Built

CQ Re 23

The “Fact Specific” Inquiry Into a Causal

Worker's Seaman Status Should Not Be Confined

To That Hand’s Assignment At The Moment Of

The Accident, But Should Consider His or Her

Overall Union Work History .................. 25

v

TABLE OF AUTHORITIES

Page(s)

Cases Crrep

Ashley v. Epic Divers, Inc., 818 F.Supp. 172 (E.D.La.

Bese Pn reac ccccevcupesencceencsseseecesescasccceces 28

Bach v. Trident Steamship Co., Inc., 920 F.2d 322 (5th

Cir. 1991), vacated, 114 L.Ed.2d 706 (1991), rein-

stated on reconsideration, 947 F.2d 129 (5th Cir.

1991), cert. den., 118 L.Ed.2d 592 (1992)........... 28

Barrett v. Chevron, U.S.A., Inc. 871 F.2d 106 (5th

Gat TEED covncccecccatuccccctdscccwedncacteces 26, 27

Biggs v. Norfolk Dredging Corp., 360 F.2d 360 (4th

Be GN was-dundeddhocadd«csnvedeiccevestede. passim

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

See ecntedevescccusevasecscvenctuscuseWiecs ceese 15

Boatel, Inc. v. Delamore, 379 F.2d 850 (5th Cir. 1967)

sOSeéccgunsbasiGhe bond venededeccognceeeseciess 8, 9, 13

Braniff v. Jackson Ave-Gretna Ferry, Inc., 280 F.2d

See Geen GD Cee kv bcccccccctcdéntsescecsece: 26, 27

Chandris, Inc. v. Latsis, __ U.S. __, 115 S. Ct. 807,

112 L_ Ed. 2d 111 (1995).......... 2, 4, 10, 23, 26, 29

Chauving v. Sanford Offshore Salvage, Inc., 868 F.2d

Fee GEE Pcceccntccponewtadteceeess cceses 27

Clark v. Solomon Nav. Co., Ltd., 631 F.Supp. 1273

GS GPU pecs cceccccencccpenssenesecessncase 28

Director, OWCP v. Perini North River Associate, 459

en Se ED ccc escvncocamcensesnecsnaseseocesccs 1

Doucet v. Gulf Oil Corp., 783 F.2d 518 (5th Cir.

PEED ccevencs copuccacchonsccececoncenesanssasescas 10

Eichel v. New York Central R.R. Co., 375 U.S. 253

PPE ov ececenegs concagcecesncsncasconsnsesscessce 10

vi

TABLE OF AUTHORITIES - Continued

Page(s)

Estate of Wenzel v. Seaward Marine, Inc., 709 F.2d

CES GD GOR TD cc cccvcevcncscccvcssccdvcucsdse 25

Evans v. United Arab Shipping Co., S.A.G., 4 F.3d

Bay GG Ga TD cocececsecepccsccccevesedecéctns 28

PICs GG, Bee CS ED Ge cc dccccasecacccnccss 8

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

POEEPec conc thacvevcaseccdevedvecccessscccsen 8, 19, 20

Fisher v. Nichols, 81 F.3d 319 (2d Cir. 1996).......... 29

Fontenot v. AWI, Inc., 923 F.2d 1127 (5th Cir. 1991) ..... 3

Gardiner v. Sea-Land Service, Inc., 786 F.2d 943 (9th

Cir. 1986) ..... » concen deanenpenedetucsenekeedseusee 8

Gaspard v. Taylor Diving & Salvage Co., Inc., 649

Pee SI Goes Ge, Bao cece cc ccnccscccescvccccses 29

Gates v. Delta Corrosion Offshore, Inc., 715 F.Supp.

BED Gee. GEED ccvncnsnncecoccdsescnssneencoes 28

Guidry v. Continental Oil Co., 640 F.2d 523 (5th Cir.

Bcc ceccuscscncececcoscusnccocespseceeenecesies 27

Grimes 0. Concrete Pile Co., 356 U.S. 252

GREED c wveccccecescccccseccesecessecoeccesesesesees 1

Guidry v. Ocean Drilling & Exploration Co., 244 F.

Supp. 691 (W.D.La. 1965) ....... 2.26.26 ccc cceeeees 20

Guilles v. Sea-Land Service, Inc., 12 F.3d 381 (2d Cir.

GForce ccccvcnacccavscsdncedenensopesetetsevesces 11

Hall v. Professional Divers of New Orleans, 865

F.Supp. 363 (E.D.La. 1994) ............ 2c cee cece 28

Harwood v. Partredereit AF, 944 F.2d 1187 (4th Cir.

1991), cert. den., 118 L.Ed.2d 493 (1992)........... 28

The Highlander, 12 Fed. Cas. 136 (D. 1859)........... 28

vii

TABLE OF AUTHORITIES - Continued

Page(s)

Higginbotham v. Mobil Oil Corp., 545 F.2d 422 (5th

it PE thagheseddheseesenbconetsdekiees éuassis 27

Hunt v. Liberty Lobby, 707 F.2d 1493 (D.C.Cir. 1983) .... 21

International Stevedoring Co. v. Haverty, 272 U.S. 50

SER ERG AE Fx SOE LER AT LEE ae 3

Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523

= il Ny OPN Al ELE PIN oD 11

Jones v. Mississippi River Grain Elevator Co., 703

F.2d 108 (5th Cir. 1983), cert. den., 464 U.S. 850

SED on csedescesconsécceesivtacososesessocceseses 27

Kernan v. American Dredging Co., 355 U.S. 426

GRUP vecctnccdeccvccvccvccnesescccesedscecccveves 24

Lazzari v. Matson Navigation Co., 29 Ben. Rev. Bd.

BS Ge GE cc ccccncccccnncccesvecsccccevsccecs 20

Lewis v. Roland E. Trego & Sons, 359 F. Supp. 1130

SD GE once duvedscccecevcccceceeosvececoons 9

Liverette v. N.L. Sperry Sun, Inc., 831 F.2d 554 (5th

GE BRP cc ctesccniccceccccesccccsectipessscccess 27

Longmire v. Sea Drilling Corp., 610 F.2d 1342 (5th

Se BD nec vcccescocccccenccccescestsesecescscees 6

McDermott International, Inc. v. Wilander, 498 U.S.

BP GPE cc dvivosvocescccccesccsess 2, 3, 7, 17, 25, 28

Miles v. Apex Marine Corp., 498 U.S. 19 (1990)........ 2

The Murphy Tugs, 28 F. 429 (E.D. Mich. 1886)........ 28

New v. Associated Painting Services, Inc., 863 F.2d

BERD GD GOR BRR ccc ccscevcccdccenccnccevecess 27

News pepe Dry Dock Co. v. Direc-

tor, OWCP, 583 F.2d 1273 (4th Cir. 1978).......... 15

viii

TABLE OF AUTHORITIES ~- Continued

Page(s)

Northeast Marine Terminal Co., Inc. v. Caputo, 432

FS 7 ., PrTirrrreriririririiie re tt 3,7

Pallas Shipping Agency, Ltd. v. Duris, 461 U.S. 529

SROUED <0 cocccnecdcccvccescveseséscccecucensseeanes 15

Papai v. Harbor Tug & Barge Co., 67 F.3d 203 (9th

GOR GOTED ccvcvccccnceccdeccdctavedsecnvess 21, 22, 28

Pickle v. Int'l Oilfield, 791 F.2d 1237 (5th Cir. 1986) .... 29

Ramos v. Universal Dredging Corp., 547 F. Supp. 661

GOLCEEB. GEG icc c cccccdnccvevcvcsecescccosesovens 9

Reed v. the S.S. YAKA, 373 U.S. 410 (1963)...... 4,9, 11

Ringering v. Compania Maritima De-La Mancha, 670

F.Supp. 301 (D. Or. 1987) aff'd mem., 848 F.2d

SEED BE GOR Ge ccc cvccccdccvesccdessesceveves 28

Roth v. McAllister Brothers, Inc., 316 F.2d 143 (2nd

EE Gee cdadscncesscodédsodecvecvecnsemsiees 16, 21

Sharp v. Johnson Brothers Corp., 917 F.2d 885 (5th

CR BOGE ccc ccvovccccccscnvcancdscetededovcvendos 13

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

< % PTrrrrivrririrriir rit i passim

Simmons v. Hoegh Lines, 784 F.2d 1234 (5th Cir.

DE s ov ccncb cect ecbocesocdescsdecéuses@iecsudvese 10

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

Gc co ctccctcecevecscsvecsssreesouet 3, 7, 10, 13, 17

Smith v. Eastern Seaboard Pile Driving, Inc., 604 F.2d

GED GAS Gin, SAVED occcnceccnncasvedsesosecacaceses 11

South Chicago Coal & Dock Co. v. Bassett, 309 U.S.

BN CREE s 60 - cecccoccsncvecsversedatbacnceosaseees 3

Southwest Marine, Inc. v. Gizoni, 502 U.S. 81 (1991) . .passim

TABLE OF AUTHORITIES — Continued

Page(s)

Stanfield v. Shellmaker, Inc. 869 F.2d 521 (9th Cir.

DED scbaopebeseeedsocdesvesceneneeeccaesecescosoes 26

Tipton v. Socony Mobil Oil, 375 U.S. 34 (1963)........ 10

United States v. Utah Construction Co., 384 U.S. 394,

Gs Fe Gee cece cetccscccscveccoccesves 18

Vaughan v. Atkinson, 369 U.S. 527 (1962).............. 8

Wallace v. Oceaneering International, 727 F.2d 427

Se GRRE occcs cdevecccsconscvcccesevecs 1, 28, 29

Wood v. Diamond M Dredging Co., 691 F.2d 1165

SGD Es he cccccccvsetecssvcsecoconsopecaosse 8

Young & Co. v. Shea, 397 F.2d 185 (5th Cir. 1968)..... 9

Statutes Crrep

BD CIE, Gp FER) G0 COB ccc ccccccccsccvccccvccees 19

BB UBL. FOG TAIT ORD. GB. cc ccccccccccscccscccees 22

Longshore and Harbor Workers’ Compensation

Act (“LHWCA”), 33 U.S.C. §§ 901 ef seq............ 2

BPs FE ED ccddcvsicccrcccccsvccesccceceve 12, 23

MD cctonevcssosscbsoscaccecensesees 3, 11

SL PPPFEPPPYYTTTITITITTTLITLL Tete 8

PP es SE ED wddcvccccccdvccesecesocesscevcscese 8

Fe ER nc ccsoscrecesccceccécccesncanecenes 13

PT EEE cuceccscstbesonvcccevescnsesceonces 19

Sp i CPD cnacbdenccdsonccencteccertocococss 19

Jones Act, 46 U.S.C. § 688 .........- 6.6 cece eeeee passim

x

TABLE OF AUTHORITIES - Continued

Page(s)

Act of Aug. 18, 1959, 73 Stat. 391............. ee eee 15

Act of Mar. 4 1927, § 33, 44 Stat. 1440.............. 15

Administrative Procedures Act, 5 U.S.C. §§ 500 et

OTHER AUTHORITIES

U.S. Code Cong. & Admin. News, p. 2134.......... 15

“Election of Remedies” §§ 1-3, 25 Am Jur 2d. 761

SE nc bs on caeeteeneendad bb0dedssdededsctededs ves 14

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

duetnadecsesectechaecadaddelinetsscotenel 7, 8, 9, 17, 18

S.Rep.No. 428, 86th Cong., Ist Sess., 2 (1959)........ 15

Note, “Looking For A Lodestar Among the Rocks

and Shoals of Longshore Coverage”, 3

U.S.F.Mar.L.J. 227, 261 (Sum. 1991).............4.. 20

1B Moore's Federal Practice (2d ed.) { 0.416[3]........ 21

1 Benedict on Admiralty (7th ed.) ..........05eeceeeees 8

1 Schoenbaum, Admiralty and Maritime Law (2d

CBD BSD cccvecocudececvecesvecctoecesaneedssseaes 4

4 Larson, Workmen’s Compensation Law, Section

SOSA CHOGE) oc ccvcccccccccsvcvccccccevegescoceess 5, 17

Baer, Admiralty Law of the Supreme Court (3d ed.) ..... 7

Report of the Federal Courts Study Committee (April

BR BOGE co cvcveevevcwserteseveetneséses sdveseduseae 8

INTEREST OF THE AMICUS CURIAE

This brief amicus curiae is filed, with the consent of

the parties, on behalf of the United Brotherhood of Car-

penters and Joiners of America (“UBCJA”). The UBCJA is

an international labor organization with affiliates in the

United States and Canada. It enjoys a total membership

of more than 567,000 working men and women. Many of

those men and women work upon the navigable waters

of the United States. They work as deep sea divers, diver

tenders, piledrivers, barge workers, carpenters, riggers,

welders, and marine platform builders. They work on

rivers, in harbors, and upon or beneath the high seas.

They construct piers, wharves, bridges, oil platforms,

submarine pipelines, underwater transit tubes, and open

ocean sewer outfalls. They perform those tasks from

crane ships, dive vessels, derrick barges, dredges, tugs

and other special purpose construction vessels owned or

operated by their employers. Their work “necessarily

involves exposure to numerous marine perils, and is

inherently maritime because it cannot be done on land.”!

This Court has confirmed their maritime status under

both the Longshore and Harbor Workers Compensation

Act (“LHWCA”)? and the Jones Act.* We respectfully

submit that this status gives them an abiding interest in

the question for review.

1 Wallace v. Oceaneering International, 727 F.2d 427, 436 (5th

Cir.1984) [original emphasis].

2 E.g., Director, OWCP v. Perini North River Assoc., 459 U.S.

293 (1983) [piledriver held Longshore “employee”].

3 Grimes v. Raymond Concrete Pile Co., 356 U.S. 252 (1958)

[piledriver held Jones Act “seaman” ].

SUMMARY OF ARGUMENT

Sailing, as it does, in the wake of McDermott Interna-

tional, Inc. v. Wilander*, Southwest Marine, Inc. v. Gizoni®

and Chandris, Inc. v. Latsis,® this case not only bears us

back into “occupied waters” long “dominated by federal

statute”,”7 but requires us to thread the tricky channel that

runs between the Jones Act®* and the LHWCA.? Nailing

the banners of mutual exclusivity and election of

remedies to the mast, ¢ titioner Harbor Tug & Barge

(“HTB”) and its amici surge through those statutes under

all plain sail, and urge the Court to cut injured maritime

workers off from their traditional seaman’s remedies

whenever a federal administrative law judge has

awarded them interim LHWCA benefits. Turning a blind

eye on the day-to-day realities of casual waterfront work,

they next insist that the “fact specific” inquiry into sea-

man status! should ignore a union hand’s overall work

history and focus solely on the narrow job to which he or

she was dispatched on the day of the accident. The

UBCJA respectfully submits that these arguments misin-

terpret the letter and logic of both the Jones Act and the

LHWCA. -

# 498 U.S. 33 (1991).

5 502 U.S. 81 (1991).

6 US. __, 115 S.Ct. 807, 112 L.Ed.2d 111 (1995).

7 Miles v. Apex Marine Corp., 498 U.S. 19, 36 (1990).

8 46 U.S.C. § 688.

9 33 U.S.C. §§ 901 et seq.

10 Wilander, supra, 498 U.S. at 356.

-_ = —— ==

We all begin our voyage with the inarguable proposi-

tion that the Jones Act and the LHWCA are “a pair of

mutually exclusive remedial statutes”.1! What is more,

we all concede the “salutary principle” that both statutes

“ “must be read in the light of the mischief to be corrected

and the end to be attained.’ ”!? Indeed, we even all agree

that both statutes must be construed “liberally”, “flexi-

bly” and “expansively” in order to extend their remedial

coverage.'> But in the end, we seem to be looking at the

problem through different ends of the telescope.

Relying primarily on recent Fifth Circuit authority,’

and showing remarkably little sympathy for what the

older Fifth Circuit cases referred to as “the difficulties

faced by injured maritime workers arguably both seamen

and harbor workers who must choose whether and by

what means they will pursue remedies that in substantive

theory are perfectly mutually exclusive but which seem

in practice to frequently overlap each other’s borders”,'5

HTB and its amici take the narrow, doctrinal view that,

quite apart from considerations of collateral estoppel,

“the plain meaning of [LHWCA] § 905(a) and the

expressed Congressional intent is that a claimant who is

11 Wilander, supra, 498 U.S. at 353.

12 Wilander, supra, 498 U.S. at 349 quoting Warner v. Goltra,

293 U.S. 155, 158 (1934). See also, South Chicago Coal & Dock Co. v.

Bassett, 309 U.S. 251, 259 (1940).

13 Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249,

258 (1977) [LHWCA)]; International Stevedoring Co. v. Haverty, 272

U.S. 50, 52 (1926) [Jones Act].

14 E.g., Sharp v. Johnson Bros. Corp., 973 F.2d 423 (5th Cir.

1992); Fontenot v. AWI, Inc., 923 F.2d. 1127 (5th Cir. 1991).

1S Simms v. Valley Line Co., 709 F.2d 409, 411 (5th Cir. 1983).

awarded benefits under the LHWCA is precluded from

seeking other remedies against his employer.”'© The

UBCJA, on the other hand, agrees with Professor Schoen-

baum, and espouses the broader, more pragmatic view

that, “In reality, as Gizoni proves, there is overlap

between the two Acts, and if a worker falls into both

categories, he can opt for whichever remedy is more

lucrative or suitable, which will virtually always be sea-

man status.”!7 In fact, the overlap probably dates at least

as far back as Reed v. the S.S. YAKA."® To quote one of the

leading circuit court cases on point, “If the claimant is not

simply substituting in a single phase of a seaman’s

duties, but is a member of the crew, we see no reason

why under YAKA, despite receipt of compensation, he

may not also sue his employer under the Jones Act.”!9

This, of course, serves the most “important purpose of

the compensation statute, to provide immediate relief to

an injured employee”,?° without abridging the primary

object of the Jones Act, to protect those who do business

on great waters from “the perils of the sea.”2! As Pro-

fessor Larson teaches:

“The community has decided that injured work-

men and their families shall have as a minimum

16 Brief of Petitioner, p. 20.

17 1 Schoenbaum, Admiralty and Maritime Law (2d-ed.) § 6-9,

p. 260.

18 373 U.S. 410 (1963).

19 Biggs v. Norfolk Dredging Corp., 360 F.2d 360, 364 (4th Cir.

1969).

20 Biggs v. Norfolk Dredging Corp., 360 F.2d 360, 364 (4th Cir.

1969).

21 Chandris, Inc. v. Latsis, 115 S.Ct. at 2195.

the security that goes with non-fault compensa-

tion. It is not for the individual, once he is part

of that system, to elect whether its protection is

a good idea for him or not. If he accepts or

claims its benefits, this is not an election but

merely the setting in motion of a protective pro-

cess ordained by the state. This being so, 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 pro-

tection. It is of the nature of compensation, as

distinguished from damage actions, that it is

intended to be both prompt and reliable, in

order to perform its function of caring for the

immediate economic and medical needs of an

injured worker and his family. If, then, he

accepts or claims compensation as his first

move, perhaps fully intending to follow this

with a Jones Act action, this should not be

thought to be sinister, deceitful, or avaricious on

his part. He is setting out to ensure that he gets

the minimal social insurance protection that he

may be entitled to. If it turns out later that he is

entitled to a more generous award under a dif-

ferent system, since the compensation award

will be credited on the larger award, there has

been no serious harm done.”??

The petitioner’s and the UBCJA’s respective views of

the seaman status question diverge down a similar cross-

road. Turning their backs on the well settled principle

22 4 Larson, Workmen's Compensation Law, Section 90.51, p.

16-366 to 16-367 (1983).

that, “The issue of an injured worker's status as a seaman

should be addressed with reference to the nature and

location of his occupation taken as a whole”,?> HTB and

its amici insist that “seaman status must be based upon

the claimant’s work assignment when injured.”%* The

UBCJA contends that this approach not only looks at that

problem through a keyhole, but varnishes it with “a

judicial gloss so protean, elusive, or arbitrary as to permit

a worker to walk into and out of coverage in the course of

his [or her] regular duties.”?5

WHEREFORE we respectfully urge this Court to

affirm the decision below.

23 Longmire v. Sea Drilling Corp., 610 F.2d 1342, 1347 (5th Cir.

1980).

24 Brief of Petitioner, p. 39.

25 Longmire v. Sea Drilling Corp., supra, 610 F.2d at 1347.

ARGUMENT

UNION MARITIME WORKERS, LIKE JOHN PAPAL,

SHOULD BE ABLE TO EXERCISE THEIR TRADI-

TIONAL STATUTORY AND COMMON LAW RIGHTS

AS SEAMEN EVEN AFTER AN ADMINISTRATIVE

LAW JUDGE HAS AWARDED THEM WORKERS’

COMPENSATION BENEFITS UNDER THE LHWCA.

1. Despite the Statutes’ Mutual Exclusivity, the Mar-

itime Law Has Always Permitted Vessel-Based Har-

bor Workers to Pursue Parallel Jones Act and

LHWCA Claims for the Same Injury.

The history of these two statutes has been told well

and often elsewhere. We won't rehash it here except to

reiterate that, while they have always been mutually

exclusive, the courts have long recognized “that in a

practical sense, a ‘zone of uncertainty’ inevitably con-

nects the two Acts.”?”7 Quite apart from that decades-old

“zone of uncertainty”, after Southwest Marine, Inc. v. Giz-

oni?® the lower courts quickly recognized that “some mar-

itime workers may be Jones Act seamen who are injured

while also performing a job specifically enumerated

under the LHWCA, and, therefore, are entitled to recov-

ery under both statutes, although double recovery of any

26 See, e.g., Wilander, supra, 498 U.S. at 341-354; Northeast

Marine Terminals Co., Inc. v. Caputo, supra, 432 U.S. at 256-273;

Gilmore & Black, The Law of Admiralty (2d ed.) 404-455; Baer,

Admiralty Law of the Supreme Court (3d ed.) 132-300.

27 Simms, supra, 709 F.2d at 411.

28 Supra.

damage element is precluded.” It is therefore well

established that “[t]here is nothing sinister about a

worker who claims to be physically disabled from inju-

ries incurred during his employment, attempting either

personally or through counsel, to obtain recovery by

whatever lawful remedy or remedies are available to

him.”* This is especially true in an age of congested

dockets and delayed litigation.*! Without access to

interim LHWCA benefits, workers like John Papai might

have to subsist on “maintenance and cure”. That sclerotic

remedy dates back to the shipowner’s gothic obligation

to provide injured seamen with lodging, a nurse, a candle

and food,*? and can condemn 20th century families to as

little as $8.00 a day in provisional benefits.** Worse still,

unlike LHWCA benefits, which succor both temporary™*

and permanent conditions,* the right to maintenance and

cure expires altogether as soon as the injured seaman

reaches “maximum medical cure” — whether or not he or

she is able to return to work.* As Professors Gilmore and

29 Figueroa v. Campbell Industries, 45 F.3d 311, 315 (9th Cir

1995).

%® Boatel, Inc. v. Delamore, 379 F.2d 850, 854 (5th Cir. 1967).

31 See, gen., Report of the Federal Courts Study Committee

(April 2, 1990) pp. 4-10.

32 Gilmore & Black, supra, 281; 1 Benedict on Admiralty (7th

ed.) 1-20.

33 Gardiner v. Sea-Land Service, Inc., 786 F.2d 943, 946 (9th

Cir. 1986).

4 33 U.S.C. § 908(b).

35 33 U.S.C. § 908(a).

%© Wood v. Diamond M Dredging Co., 691 F.2d 1165, 1170 (5th

Cir. 1982). See, also, Vaughan v. Atkinson, 369 U.S. 527 (1962);

Farrell v. U.S., 336 U.S. 511 (1949).

Black observed, there is thus no real down side to allow-

ing seamen to collect modern workers’ compensation

while their Jones Act claims are pending.*’ As they put it,

“It is only because of a series of accidents in our legal

history that the payment of medical expenses and a living

allowance to an injured worker is thought to be entirely

consistent with his [or her] damage recovery if the pay-

ment is called maintenance and cure but inconsistent

with the damage recovery if it is called compensation.” *

What is more, as we'll discuss in what follows, injured

waterfront workers like John Papai must turn perforce to

the LHWCA when their employers (and/or erroneous

lower court rulings) refuse to recognize their Jones Act

status. In light of all these harsh realities, the maritime

law has always permitted waterfront workers like John

Papai to pursue successive LHWCA and Jones Act

remedies for the same injury.*?

This, of course, raises inevitable collateral consider-

ations. HTB and its amici try to wield those collateral

considerations, like a scythe, to cut injured waterfront

workers off from their historic seaman’s rights. But this

Court has traditionally used them as a shield to shelter

workers who “ ‘are by the peculiarity of their lives liable

37 Gilmore & Black, The Law of Admiralty (2d ed.) 435.

38 Id.

3% See e.g., Reed v. The S.S. YAKA, supra; Southwest Marine,

Inc. v. Gizoni, 502 U.S. 81, 112 S.Ct. 486 (1991); Boatel, Inc. v.

Delamore, 379 F.2d 850 (Sth Cir. 1967); Young & Co. v. Shea, 397

F.2d 185 (Sth Cir. 1968); Biggs v. Norfolk Dredging Co., supra;

Ramos v. Universal Dredging Corp., 547 F.Supp. 661 (D.C.Ha.

1982); Lewis v. Roland E. Trego & Sons, 359 F.Supp. 1130 (D.C.Md.

1973).

10

to sudden sickness from changes of climate, exposure to

perils, and exhausting labor.’ ”*#

Without putting too fine a point on it, “The policy of

the maritime law, for great, and wise, and benevolent

purposes, has built up peculiar rights, privileges, duties

and liabilities in the sea-service, which do not belong to

home pursuits.”*! Those peculiar rights and privileges

are woven deeply into the issues we're discussing here.

For example, notwithstanding their mutual exclusivity, it

is “ ‘universally accepted’ that an employee who receives

voluntary payments under the LHWCA without a formal

award is not barred from subsequently seeking relief

under the Jones Act”.*? In fact, where the evidence is

enough to send the threshold seaman question to a jury,

this Court has ruled that it is reversible error to permit

the employer to prove that the worker accepted LHWCA

benefits while waiting for trial.©

It is equally well established that injured waterfront

workers cannot summarily cut themselves off from the

Jones Act by filing an administrative application for

LHWCA benefits.* The law in this area “tolerates no

*# Chandris, supra, 115 S.Ct. at 2183 quoting Harden v.

Gordon, 11 F.Cas. 480, 485 (CC Me. 1823).

4! Id at 2195 [Stevens J. concurring].

#2 Gizoni, supra, 502 U.S. at 91. See also, Simms, supra, 709

F.2d at 412.

3 Gizoni, supra; Tipton v. Socony Mobil Oil, 375 U.S. 34, 37

(1963). See, also, Eichel v. New York Central R.R. Co., 375 U.S. 253

(1963); Simmons v. Hoegh Lines, 784 F.2d 1234, 1237 (5th Cir.

1986); Doucet v. Gulf Oil Corp., 783 F.2d 518, 523 (Sth Cir. 1986).

4 Simms, supra, 709 F.2d at 411-412; Biggs, supra, 360 F.2d at

364.

-_— —_

11

distinction between the mere availability or voluntary

payment of compensation and a positive claim for it.”

As the cases explain:

“[N]ot to allow suit where compensation has

been affirmatively sought would discourage the

spontaneous initiation of payments. Under such

a policy the employer who immediately and

voluntarily begins compensation payments

would be subject to suit; the employer who

forces his employee to seek compensation

would be immune from suit.”*

In short, it was wrong of HTB and its amici to suggest

that Congress intended the “exclusive remedy” provi-

sions in § 905(a) of the LHWCA* to estop all vessel-

based harbor workers from pursuing their potential Jones

Act rights. To begin with, as this Court has repeatedly

ruled, far from erecting an impervious barrier to a harbor

worker's historic seaman’s remedies, § 905(a) wasn’t even

designed to bar them from suing their vessel-owning

employers for “dual capacity” negligence. More impor-

tantly, HTB’s blanket insistence that Congress drew up

§ 905(a) to confine harbor workers like John Papai to the

LHWCA overlooks the fact “the LHWCA and its exclu-

sionary provision do not apply to a harbor worker who is

also a ‘member of a crew of any vessel,’ a phrase that is a

Biggs, supra.

# Id.

47 33 U.S.C. § 905(a).

#8 Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523 (1983);

Reed v. S.S. YAKA, supra. See also, Guilles v. Sea-Land Service, Inc.,

12 F.3d 381 (2d Cir. 1993); Smith v. Eastern Seaboard Pile Driving,

Inc., 604 F.2d 689, 795 (2d Cir. 1979).

12

‘refinement’ of the term ‘seaman’ in the Jones Act.”*

Thus, as Gizoni patiently explains, while employers and

their carriers have an obvious interest in forcing injured

waterfront workers to queue up behind one statute or the

other, “the LHWCA clearly does not comprehend such a

preclusive effect, as it specifically provides that any

amounts paid to an employee for the same injury, disabil-

ity, or death pursuant to the Jones Act shall be credited

against any liability imposed by the LHWCA.”* In sum,

HTB and its amici shook hands with a tar baby when they

embraced Sharp v. Johnson Bros. Corp.,5! and suggested

that any award of LHWCA benefits automatically bars a

subsequent Jones Act claim.

2. The Sweeping Conclusion in Sharp v. Johnson Bros.

Corp., that Any LHWCA Award Automatically Bars

a Subsequent Jones Act Claim, Does Not Deserve

the Supreme Court’s Imprimatur.

The Sharp case essentially held that an LHWCA “set-

tlement constituted an election of remedies and pre-

cluded the filing of a suit based upon general maritime

law or the Jones Act”52 even though “LHWCA coverage

was never litigated in an adversarial proceeding.”** Not-

ing that such settlements must be approved by the

4° Gizoni, supra, 502 U.S. at 87.

50 Id. at 91-92 citing 33 U.S.C. § 903(e).

51 Supra.

52 [d., 973 F.2d at 425.

53 Id. at 426.

13

Department of Labor pursuant to 33 U.S.C. § 908(i) of the

Act,** the Fifth Circuit concluded that the vessel-based

harbor worker in that case had somehow forsaken his

rights as a seaman simply by availing himself of the

LHWCA’s “statutory machinery to bargain for an

[interim] award.”55 This result created bad law for several

reasons.

For starters, this was the second time that the Fifth

Circuit had entertained this case on appeal, and it was

sufficiently “distressed” over the attorneys’ failure to dis-

close their LHWCA settlement during the first proceed-

ing to admonish them, right in the published opinion,

that “candor and respect for this court would dictate that

the parties inform us of so significant a development in

their litigation.”5”7 Given the harshness of their ultimate

ruling, we can’t help but wonder whether that distress

spilled over into the Court of Appeal’s reasoning. That

reasoning is otherwise very hard to explain.

For example, Sharp paid nothing but lip service to the

older Fifth Circuit cases on point, like Simms v. Valley Line

Co.** and Boatel, Inc. v. Delamore (which specifically ruled

against “a finding of collateral estoppel”, in a situation

very similar to the one in Sharp, because “the issue of

whether the Longshoremen’s Act properly covered this

employee was not raised by the parties nor was evidence

54 33 U.S.C. § 908(i).

55 Sharp, supra.

%© See Sharp v. Johnson Bros. Corp., 917 F.2d 885 (5th Cir.

1990).

5? Sharp (“II”), supra, 973 F.2d at 427 fn. 3.

58 Supra.

14

taken on this subject, though it was in the mind of the

Deputy Commissioner since he had informally discussed

it with claimant a month prior to the hearing but did not

pursue the matter because neither party had raised the

issue.”)5? More importantly though the opinion was cou-

ched in terms of “collateral estoppel”, and spoke of the

settlement decree as a “formal award”, it is actually

anchored in the rocky ground of election. As Sharp

summed up:

“Congress did not intend that the worker be

able to pick and choose his remedy based upon

which has conferred upon him a larger award.

That is, the LHWCA was not intended to be a

‘stepping stone on the way to a jury award.’

Fontenot, 923 F.2d at 1133."

In point of fact, Congress did not intend that the worker

be put to any elections.

“Broadly, an election of remedies is the act of chocs-

ing between two or more different and coexisting

methods of procedure and relief allowed by law on the

same set of facts.” It’s equitable in nature, and consti-

tutes a procedural or administrative doctrine, not a rule

of substantive law.®? But as LHWCA opinions from every

level of decision have confirmed, “in the absence of

express legislative declaration to the contrary, the courts

5° Supra, 379 F.2d at 854.

© Sharp, supra, 973 at 426.

61 “Election of Remedies” §§ 1-3, 25 Am Jur 2d. 761-762

(1996).

62 Id.

15

have been reluctant to extend this relatively harsh doc-

trine.”®* There are no such declarations in the LHWCA.

To the contrary, as originally drafted back in 1927, the Act

required longshoremen and harbor workers “to choose

between the receipt of a compensation award from [their]

employer and a damage suit against the third party. Act

of Mar. 4, 1927, § 33, 44 Stat. 1440.” But as this Court has

repeatedly noted:

“In 1959, Congress amended the Act to delete

the election-of-remedies requirement altogether.

Act of Aug. 18, 1959, 73 Stat. 391. Existing law

was felt to ‘wor[k] a hardship on an employee

by in effect forcing him to take compensation

under the act because of the risks involved in

pursuing a lawsuit against a third party.’

S.Rep.No. 428, 86th Cong., 1st Sess., 2 (1959),

U.S. Code of Cong. & Admin.News, p. 2134. The

result was that an injured employee ‘usually

elects to take compensation for the simple rea-

son that his expenses must be met immediately,

not months or years after when he has won his

lawsuit.’ Id., U.S. Code Cong. & Admin.News, p.

2134.65

Almost fifty years later, the same may be said of John

Papai, Ernest Sharp, or any other vessel-based harbor

worker who “elects” to take an interim compensation

settlement while he and his family are waiting for their

Jones Act case to come to trial. The Sharp opinion ignores

®$ Newport News Shipbuilding & Dry Dock Co. v. Director,

OWCP, 583 F.2d 1273, 1277 (4th Cir. 1978).

4 Bloomer v. Liberty Mutu. Ins. Co., 445 U.S. 74, 79 (1980).

®° Id. at 80 [other citations omitted]. See also, Pallas Shipping

Agency, Ltd. v. Duris, 461 U.S. 529, 535-537 (1983).

16

this blunt reality. As this Court observed in Gizoni, “We

find no indication in the LHWCA that Congress intended

to preclude or stay traditional Jones Act suits in district

courts.”6 In sum, the Sharp opinion erred when it read

the LHWCA to comprise an implicit election. That opin-

ion does not deserve a Supreme Court imprimatur.

3. Nor Should a Fully Litigated LHWCA Award Neces-

sarily Collaterally Estop Vessel-Based Harbor

Workers Like John Papai from Pursuing their Jones

Act Rights.

It is clear, then “that compensation statutes are not

intended to deprive a seaman or his {or her] replacement

of his [or her] historic rights.”©”7 Once we've steered past

Sharp and the doctrine of elections, we're back in district

court where the “[rJules of civil pleading allow alterna-

tive claims by the use of distinction and alternative

counts, n‘importe their inconsistency.”® As we've already

seen, there is nothing “sinister” or inequitable®? about

prosecuting inconsistent claims under the LHWCA and

the Jones Act provided the plaintiff advises both the

Department of Labor and the employer that he or she

intends to pursue alternative counts, so that “applicant

and counsel would have been altogether candid with the

agency, and the employer would be protected from

6 Gizoni, supra, 502 U.S. at 90.

67 Biggs, supra, 360 F.2d at 364.

68 Id.

6? See Roth v. McAllister Bros., Inc., 316 F.2d 143, 145 (2nd

Cir. 1963).

17

duplication of payment by being advised through notice

to withhold the sums paid by any judgment.”70

“When the compensation process has gone beyond

acceptance of benefits and even beyond the filing of a

claim to the point at which a formal award has been

entered,” however, “a far more formidable defense looms,

that of res judicata or collateral estoppel.”7! Though

Wilander instructs that the findings of the Department of

Labor are conclusive72, even today “the extent to which

collateral estoppel and res judicata will be applied to a

Jones Act suit following a formal Board finding of non-

seaman status and an award of benefits appears to be a

matter of first impression [before this Court] (and one

about which the commentators suggest there is uncer-

tainty).”7° As Gilmore and Black summed up:

“Even the payment of benefits pursuant to a

formal award in a contested proceeding is not

necessarily fatal to the Jones Act action. The

courts have shown themselves receptive to the

argument that the compensation award may

have been made without a proper adjudication

of the claimant’s status as harbor worker or

seaman. But the plaintiff who attempts to bring

a Jones Act action following a compensation

7° Biggs, supra, 360 F.2d at 365-366.

71 4 Larson, Workmen’s Compensation La

16-357 to 16-367 (1983). a pa

72 Wilander, supra, 111 S.Ct. at 818.

73 Simms, supra, 709 F.2d at 412.

18

award in a contested proceeding may find him-

self barred in a court which takes res judicata

and collateral estoppel seriously.””*

The question at bar, of course, is how seriously this Court

intends to take res judicata and collateral estoppel when it

comes to administrative judgments like the one received

by John Papai.

As Your Honors already explained in U.S. v. Utah

Construction & Mining Co.:

“Occasionally courts have used language to the

effect that res judicata principles do not apply to

administrative proceedings, but such language

is certainly too broad. When an administrative

agency is acting in a judicial capacity and

resolves disputed issues of fact properly before

it which the parties have had an adequate

opportunity to litigate, the courts have not hesi-

tated to apply res judicata to enforce repose.””°

Under the Utah Construction test, if it appears from the

record that the administrative tribunal in question, (1)

had jurisdiction over the case, (2) “was acting ina judicial

capacity,” and (3) resolved factual disputes that “were

clearly relevant to issues properly before it,” this Court

has traditionally given its determinations collateral effect

so long as “both parties had a full and fair opportunity to

argue their version of the facts and an opportunity to

seek court review of any adverse findings.””®

74 Gilmore & Black, supra, at 435.

75 384 U.S. 394, 421-422 (1966).

7 Id. at 422.

19

The UBCJA does not dispute that the administrative

law judge in this case had jurisdiction over Papai’s

LHWCA claims, or that he was acting in a judicial capac-

ity. The LHWCA and Department of Labor regulations,

after all, have vested the Office of Federal Administrative

Law Judges with adjudicative jurisdiction over all long-

shore claims,””?7 and 33 U.S.C. § 919{c) of the statute

expressly incorporates the “trial-like” procedures spelled

out in the Administrative Procedures Act.78 We do, how-

ever, query whether “both parties had a full and fair

opportunity to argue their version of the facts and an

opportunity to seek court review of any adverse rulings.”

Eschewing the rule in Sharp, and noting that

“[c]ollateral estoppel bars a party from relitigating an

issue if (1) the issue at stake is identical to the one alleged

in the prior litigation; (2) the issue was actually litigated

in the prior litigation; and (3) the determination of the

issue in the prior litigation was a critical and necessary

part of the judgment in the earlier action,” the Ninth

Circuit refused to bar a vessel-based harbor worker from

prosecuting his Jones Act rights in Figueroa v. Campbell

Industries, even though he’d already received a formal

award under the LHWCA, because the administrative

“record does not reflect an express finding by anyone that

Mr. Figueroa was not a ‘master or member of a crew’ for

purposes of the LHWCA.”79 The assertion that the claim-

ant was a “master or a member of a crew”, after all, is an

affirmative defense which will be waived unless it’s

77 33 U.S.C. § 919(a); 20 CFR §§ 702.301 et seq.

78 5 U.S.C. §§ 500 et seq.

79 45 F.3d 311, 315 (9th Cir. 1995).

20

raised by the employer or its LHWCA carrier.® As

Figueroa explains, “Courts that have addressed the pre-

cise issue of whether the jurisdictional issue must be

actually litigated for estoppel to apply in this situation

have found that if the jurisdictional issue was not con-

tested and no finding was made at the administrative

level, a plaintiff is not estopped from bringing a Jones Act

claim.”®! It follows that an employer like HTB cannot rely

on administrative collateral estoppel to bar a subsequent

Jones Act claim unless it has specifically alleged, litigated

and lost the crew member issue in the LHWCA proceed-

ing. This, of course, not only begs the confounding tacti-

cal, equitable and even ethical considerations that

populate the “through-the-looking-glass” situation where

an employer’s Jones Act carrier wants its insured to

“lose” the LHWCA case while the LHWCA carrier wants

to win it;82 it brings us directly to the central question of

this appeal. Can we conscientiously conclude that both

parties to an LHWCA claim “had a full and fair oppor-

tunity to argue their version of the facts and an oppor-

tunity to seek court review of any adverse rulings”

where, as here, neither party really wants to “win”? The

UBCJA respectfully submits that the answer to that ques-

tion can only be “No.”

80 Lazzari v. Matson Navigation Co., 29 Ben.Rev.Bd.Serv. 521

(ALJ), 524(ALJ) (1995).

81 Jd. citing Guidry v. Ocean Drilling & Exploration Co., 244

F.Supp. 691 (W.D.La. 1965).

82 Note, “Looking For A Lodestar Among the Rocks and

Shoals of Longshore Coverage” 3 U.S.F.Mar.L.J. 227, 261-262

(Sum. 1991).

21

That, of course, is why the Ninth Circuit held, in this

case that “the plaintiff's litigation of his LHWCA claim

does not bar his subsequent Jones Act claim” even

though the ALJ had denied the employer’s half-hearted

“crew member” defense.** Indeed, when we reflect that

the district court had summarily (albeit erroneously) dis-

missed Mr. Papai’s Jones Act claims before the LHWCA

case was even called to trial, we begin to appreciate how

confounding the petitioner’s arguments really are. It is

obvious, for example, that after the Jones Act carrier had

already established that Papai was a longshore harbor

worker before the federal district court, the employer's

LHWCA attorney was equitably estopped from arguing

otherwise before the federal administrative law judge.* It

is equally obvious that, if he had himself heeded the

tenets of collateral estoppel, the federal administrative

law judge would have never re-litigated Mr. Papai’s crew

member status in the wake of the district court's ruling.

Though the ALJ reportedly declined to do so because the

district court’s ruling was either interlocutory or still on

appeal, “The federal rule is that the pendency of an

appeal does not suspend the operation of an otherwise

final judgment as res judicata or collateral estoppel, unless

the appeal removes the entire case to the appellate court

and constitutes a proceeding de novo.”®5 In short, far from

-. Papai v. Harbor Tug & Barge Co., 67 F.3d 203, 208 (9th Cir.

* Roth v. McAllister 3ros., Inc., supra, 316 F.2d at 146.

*° 1B Moore's Federal Practice (2d ed.) 4 0.416{3], pp. 521-522.

dt - Hunt v. Liberty Lobby, 707 F.2d 1493, 1497 (D.C.Cir.

22

foreclosing Mr. Papai’s subsequent Jones Act claims

through administrative estoppel, the LHWCA tribunal

should have never even considered the “crew member”

issue.

At all events, the schizophrenic positions assumed by

the employer and its lawyers clearly supports the Ninth

Circuit's view that “a bar to relitigation would not serve

the purpose for which it is usually employed since the

parties are forced to take inconsistent positions under the

Jones Act and the LHWCA”.® That view seems more

appropriate still when we consider Mr. Papai’s plight.

After the district court had dismissed his Jones Act claims

under Rule 56,8” this disabled worker likewise lost his

interim claim for maintenance. It does not overstate mat-

ters too much to suggest that this left him crucified on the

horns of a painful dilemma. He could either tighten his

belt and forego his interim claims for LHWCA benefits in

the hope that, one day, his Jones Act rights would

be vindicated, or he could risk losing those rights

forever by prosecuting a claim for provisional relief

under the LHWCA. Were the doctrine of collateral estop-

pel as implacable as HTB and its amici seem to think, the

admiralty courts would have to officiate, like Pilate, as

injured workers were condemned by a curious

“Catch-22.” Without belaboring the matter, “the employer

who immediately and voluntarily begins compensation

payments would be subject to suit [while] the employer

who forces his employee to seek compensation would be

86 Papai, supra, 67 F.3d at 208.

87 28 U.S.C., Fed.R.Civ.Pro. 56.

23

immune from suit.”** Given the “peculiar rights, privi-

leges, duties and liabilities” that crowd this corner of the

law, and the fact that it’s inhabited by the particular

“wards of admiralty”®® (an endangered species if there

ever was one), we respectfully submit that the require-

ments of administrative estoppel could not possibly be

that perverse or intractable. In sum, the UBCJA contends

that even a fully litigated LHWCA award should not

necessarily estop vessel-based workers like John Papai

from pursuing their Jones Act rights.

4. The Requirements of “Mutual Exclusivity” Are Met

by the Credit Mechanisms Built into Each Statute.

In the end, careful consideration of the problem con-

firms that Congress did not make the LHWCA and the

Jones Act mutually exclusive just to snare all the harbor

workers who are injured in the “zone of uncertainty”

with elections or estoppels. As the set off provisions in

§ 903(e) clearly demonstrate, it made them mutually

exclusive to prohibit double recovery. Under those provi-

sions, any amounts paid to an injured waterfront worker

pursuant to “46 U.S.C. § 688 (relating to recovery for

injury to or death of seamen) shall be credited against

any liability imposed by this Act.” While the Jones Act

does not expressly contain a corresponding offset, it was

passed several years before the LHWCA and is, in any

88 Biggs, supra, 360 F.2d at 364.

* Chandris, supra, 115 S.Ct. at 2195 [Stevens J. concurring].

% 33 U.S.C. § 903(e). See also, Gizoni, supra, 502 U.S. at 91-92.

24

event, “a statute of the most general terms” .*' Congress

therefore left the duty of finishing and fashioning the

seaman’s Act largely to the courts.%? Since most courts

agree “[t}he order of asking for relief should not be

decisive”® it is now well-settled that:

“If the plaintiff succeeds in [his subsequent

Jones Act] suit, the employer may recoup the

amounts already paid by deducting them when

satisfying the judgment. In the event the com-

pensation was paid by one insurer and the judg-

ment becomes payable by another, the employer

as the legal debtor in both instances may retain

from the settlement of the judgment the sums

necessary to reimburse the compensation car-

rier. The two remedies - compensation and suit

- are thus made complementary. cng ogee

urpose of the compensation statutes, to pro-

vide immediate relief to an injured employee, is

achieved and the injured party’s opportunity to

press further remedies remains unabridged.”™

HTB and its amici argue that these offsets are imperfect,

and that the employer can never really recoup all of its

payments. Our learned friends from the Matson Naviga-

tion Co. and the Industrial Indemnity Company even

suggest that, judging from the ratio of benefits to total

costs, workers’ compensation remedies like the LHWCA

are “74.8%” efficient while tort remedies like the Jones

Act are only “43%” efficient.°° While these arguments and

1 Kernan v. American Dredging Co., 355 U.S. 426, 432 (1957).

%2 Id.

%3 Biggs, supra, 360 F.2d at 364.

4 Id.

9% Brief of Industrial Indemnity Company et al., p. 13.

25

Statistics show that no benefit system can stop all the

fiscal leaks, they do not alter this Court’s foregone con-

clusion that, porus or not, the statutes’ inter-connecting

credit mechanism “removes the threat of double recov-

ery,” and thus remains the only practical bulwark of

mutual exclusivity.* In other words, in the complex and

imperfect world of maritime personal injury law, so long

as vessel-based harbor workers like John Papai are obli-

gated to give vessel-owning employers like HTB an offset

for the interim LHWCA benefits they've already received,

there are no compelling equitable, doctrinal or collateral

reasons for estopping their Jones Act claims.

THE “FACT SPECIFIC” INQUIRY INTO A CAUSAL

WORKER’S SEAMAN STATUS SHOULD NOT BE

CONFINED TO THAT HAND’S ASSIGNMENT AT

THE MOMENT OF THE ACCIDENT, BUT SHOULD

CONSIDER HIS OR HER OVERALL UNION WORK

HISTORY.

Seaman's status, of course, is “a mixed question of

law and fact.”*” While attempts to fix “a firm legal signifi-

cance to such terms as ‘seaman’, ‘vessel’, [and] ‘member

of a crew’ ” almost invariably come to grief on the facts,

after decades of confusion this Court has recently made it

% Gizoni, supra, 502 U.S. at 92, fn. 5.

%” Wilander, supra, 498 U.S. at 356.

% Estate of Wenzel v. Seaward Marine, Inc., 709 F.2d 1326,

1328 (9th Cir. 1983).

26

clear that “[t]he key to seaman status”” is an employ-

ment-related “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.” Admitting

that Papai was a Z-card-carrying merchant mariner, that

he was a member of the Inland Boatman’s Union and that

he had received day-to-day, or “casual”, union dispatches

to a fleet of different tugs, ferries and other vessels, HTB

argues that our respondent was not a Jones Act seaman

because that fleet was not “under common ownership or

control.”!°! To put is as politely as possible, this argument

takes the so-called “fleet seaman doctrine,” and turns it

on its head.

Under the “fleet seaman doctrine”, an injured

worker’s “status as a crewmember is determined ‘in the

context of his entire employment’ with his current

employer.”©2 The doctrine was originally devised by the

Fifth Circuit, in a case involving an “ambiguous-amphib-

ious maritime worker”,!° “to ease the requirement that,

to be a seaman, the claimant had to be ‘assigned perma-

nently to a vessel.’ “1 While it has been applied

% Id. at 498.

100 Chandris, supra, 115 S.Ct. at 2190.

101 Petitioner's Brief, pp. 32-39.

102 Barrett v. Chevron, U.S.A., Inc., 871 F.2d 1076, 1074 (5th

Cir. 1986).

103 Braniff v. Jackson Ave-Gretna Ferry, Inc., 280 F.2d 523, 525

(Sth Cir. 1960).

104 Stanfield v. Shellmaker, Inc., 869 F.2d 521, 525 (9th Cir.

1989) quoting Braniff, supra, 280 F.2d at 526.

27

to such lubberly plaintiffs as tool pushers!5, drilling

foremen’, derrick operators’, riggers!8, sandblas-

ters'°°, mechanics!!®, and even granary workers," until

recently it had never been used to deny seaman status to

a classic merchant mariner. As the Fifth Circuit pointed

out in its lodestar Barrett opinion: “We do not decide

whether the same principle governs the crewmember sta-

tus of the maritime worker who spends virtually all of his

time performing traditional seaman’s duties [like John

Papai] but does his work on short voyages aboard a large

number of vessels.”'!? Unfortunately, despite this sunny

beginning, the “fleet seaman doctrine” underwent a mys-

terious sea change during the 90’s.

For example, in 1991, despite a scathing dissent from

one of its leading jurists, the Fifth Circuit concluded that

ship’s pilots are not seaman because the vessels they steer

in an out of port do not comprise an “identifiable fleet”

105 Guidry v. Continental Oil Co., 640 F.2d 523 (Sth Cir. 1981).

a, Higginbotham v. Mobil Oil Corp., 545 F.2d 422 (5th Cir.

win Liverette v. N.L. Sperry Sun, Inc., 831 F.2d 554 (5th Cir.

108 Chauving v. Sanford Offshore Salvage, Inc., 868 F.2d 735

(Sth Cir. 1989).

109 New v. Associated Painting Services, Inc., 863 F.2d 12

(5th Cir. 1989).

0 Braniff, supra.

111 Jones v. Mississippi River Grain Elevator Co., 703 F.2d 108

(Sth Cir. 1983), cert. den., 464 U.S. 856 (1983).

fe 12 Barrett v. Chevron USA, Inc., supra, 781 F.2d at 1075, fn.

28

operating under uniform ownership or control.'!? Courts

from the Fifth Circuit have since concluded that, even

when they plumb the depths for a single employer, deep

sea divers — seafarers whose “work necessarily involves

exposure to numerous marine perils, and is inherently

maritime because it cannot be done on land”!!4 — lack an

employment-related connection to an identifiable fleet

when the vessels from which they dive are owned by

different companies."!5 The UBCJA respectfully submits

that the Ninth Circuit was correct when it refused to read

the fleet seaman doctrine so narrowly.''®

HTB, and the cases on which it relies, have taken the

fleet seaman doctrine, and Jones Act law in general, way

off course. Deep sea divers, after all, have enjoyed the

rights and duties of seamen since 1859."!7 Ship’s pilots

113 Bach v. Trident Steamship Co., Inc., 920 F.2d 322, 328 (Sth

Cir. 1991) [Brown J. dissenting] vacated, 114 L.Ed.2d 706 (1991)

reinstated on reconsideration, 947 F.2d 129 (Sth Cir. 1991) cert. den.,

118 L.Ed.2d 592 (1992). See also, Harwood v. Partredereit AF, 944

F.2d 1187, 1194 (4th Cir. 1991) [Ervin C.J. dissenting] cert. den.

118 L.Ed.2d 493 (1982). See also, Evans v. United Arab Shipping

Co., S.A.G., 4 F.3d 207 (3d Cir. 1993). Contra see, Ringering v.

Compania Maritima De-La Mancha, 670 F.Supp. 301 (D. Or. 1987)

aff'd mem., 848 F.2d 1243 (9th Cir. 1988); Clark v. Solomon Nav. Co.,

Ltd., 631 F.Supp. 1273 (S.D.N.Y. 1986).

114 Wallace v. Oceaneering Int'l, supra, 727 F.2d at 436.

118 Ashley v. Epic Divers, Inc., 818 F.Supp. 172 (E.D.La. 1991);

Gates v. Delta Corrosion Offshore, Inc., 715 F.Supp. 160 (W.D.La.

1989). But see, Hall v. Professional Divers of New Orleans, 865

F.Supp. 363 (E.D.La. 1994).

116 Papai, supra, 67 F.3d at 206 fn. 3.

117 See, e.g., The Highlander, 12 Fed.Cas. 136 (D. 1859)

[salvage diver]; The Murphy Tugs, 28 F. 429 (E.D. Mich., 1886)

29

have been deemed seamen from the earliest days of the

Republic.* If the Jones Act was truly designed to

“ ‘offset the special hazards and disadvantages to which

they who go down to the sea in ships are subjected’ ”,119

it is virtually impossible to imagine anyone who deserves

its protection more than deep sea divers and ship’s pilots.

In the end, the same may be said of Inland Boatman

Union members like John Papai.

Lest casual mariners like Mr. Papai ultimately find

themselves marooned by a doctrine that was originally

designed for oil field hands and granary workers, the

UBCJA respectfully urges the Court to consider the Sec-

ond Circuit's decision in Fisher v. Nichols,!2° The plaintiff

in that case, like the respondent in this one, was a career

mariner who had worked aboard the vessel that disabled

him “for only one day.”!2! He was, in fact, a professional

yacht racer who sailed for a host of different owners.

Concluding that his “ ‘entire career up to and including

the moment he suffered the injury was dedicated to sea-

based work’”, the Second Circuit declined “to adhere

slavishly to the ‘fleet doctrine’ found in the case law of

some of our sister circuits.”!22 Rules Fisher:

[salvage diver]. See also, Wallace v. Oceaneering Int'l, supra

[oilfield diver]; Pickle v. Int'l Oilfield, 791 F.2d 1237 (Sth Cir.

1986) [oilfield diver]; Gaspard v. Taylor Diving & Salvage Co., Inc.

649 F.2d 372 (Sth Cir. 1981).

118 See e.g., Wilander, supra, 498 U.S. at 344.

119 Chandris, supra, 115 S.Ct. at 2191.

120 81 F.3d 319 (2d Cir. 1996).

121 Id. at 323.

122 Id.

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