46 U.S.C. § 688 (underscoring added).

   Admiralty jurisdiction and the coverage of the Jones Act depends only on a finding that the injured was "an employee of the vessel, engaged in the course of his employment" at the time of his injury. The fact that a Jones Act petitioner's injury occurred on land is not material. 46 U.S.C.A. § 740; Senko v. La Crosse Dredging Corp., 352 U.S. 370, 373 (1957). See also, Swanson v. Marra Bros., Inc., 328 U.S. 1, 4 (1946).

   The Jones Act was passed in 1920; the LHWCA was enacted in 1927 providing recovery for injury to a broad range of land-based maritime workers (only injured over water when originally enacted), but explicitly excluding from its coverage a master or member of a crew of any vessel.

   The LHWCA, in pertinent part, reads as follows:

   The term employee' means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor worker including a ship repairman, shipbuilder, and ship-breaker, but such terms does not include--(g) a master or member of a crew of any vessel; ... .

33 U.S.C. § 902(3)).

   It must be kept in mind that the Jones Act does not define "seaman" just as the LHWCA does not define "master or member of a crew." It must also be kept in mind that the Supreme Court has held that the LHWCA restricts the benefits of the Jones Act to "members of the crew of a vessel." Senko, 352 U.S. at 371 (citing Swanson, 328 U.S. 1).

   The LHWCA and the Jones Act in theory are mutually exclusive, so that a "seaman" under the Jones Act is the same as a "master or member of a crew" of any vessel. McDermott Int'l v. Wilander, 498 U.S. 337, 26 BRBS 75 (CRT) (1991); Swanson v. Marra Bros., Inc., 328 U.S. 1, 7 (1946); Pizzitolo v. Electro-Coal Transfer Corp., 812 F.2d 977 (5th Cir. 1987), cert. denied, 484 U.S. 1059 (1988); See also Smith v. Alter Barge Line, Inc., 30 BRBS 87 (1996) (citing Southwest Marine, Inc. v. Gizoni, 502 U.S. 81 (1991)) ("The terms "member of a crew" under the LHWCA and "seaman" under the Jones Act are synonymous.").

   However, from a practical view the limits may not always appear so black and white. See for example Simms v. Valley Line Co., 709 F.2d 409 (5th Cir. 1983) where the Fifth Circuit stated:

   Well recognized are the difficulties faced by injured maritime workers arguably both seaman and harbor workers who must choose whether by what means they will pursue remedies that in substantive theory are perfectly mutually exclusive (the [Longshore] Compensation Act, which for present purposes applies to all but seaman, and the Jones Act, which applies only to seaman, but which seem in practice to frequently overlap each other's borders:

    Thus, despite our continued insistence that a Jones Act "seaman" and a "crew member" excluded from the Longshoreman's Act are one and the same (in other words that the statutes are mutually exclusive) we recognize that in a practical sense, a "zone of uncertainly" inevitably connects the two Acts.

Simms, 709 F.2d at 411-12.

[ED. NOTE: Interestingly, in Simms, the claimant had filed a petition seeking review of an Order of the Board dismissing him as a party from an administrative appeal seeking a determination that the maritime worker was not a seaman. (The employer's worker's comp carrier had appealed the determination of non-seaman status.) Simms had a Jones Act claim pending and did not want to jeopardize his possible determination of seaman status. The Fifth Circuit noted his theory of appealable adverse effects arising out of the unique relationship of the Jones Act and the LHWCA but held that there had not yet been a final Board determination of non-seaman status.]

[ED. NOTE: For the period 1927-1946, the Supreme Court did not recognize the mutual exclusivity of the LHWCA and the Jones Act. Swanson, 328 U.S. 1.]

   "Master or member of a crew" is a refinement of the term "seaman" in the Jones Act; it excludes from LHWCA coverage those properly covered under the Jones Act. Wilander, 498 U.S. 337; White v. Valley Line Co., 736 F.2d 307 (5th Cir. 1984). Thus, the key requirement for Jones Act coverage (seaman status) is indirectly defined by elimination under LHWCA jurisprudence and, vice versa; the key requirement for LHWCA status is the elimination of seaman status (providing of course, the worker is a maritime employee).

   Thus, there is an ever present tension between the LHWCA and the Jones Act. The Jones Act is a maritime negligence statute that gives seamen a right of recovery against a ship or employer. The LHWCA, on the other hand, covers "maritime workers" but excludes members of the crew of a vessel as noted above. The LHWCA fact-finder is the administrative law judge. Recall, that the LHWCA is to be liberally construed with a presumption of coverage.

   There is also jurisprudence noting that the Jones Act is to be liberally construed as well. See Offshore Co. V. Robinson, 266 F.2d 769, 773-774, 1954 AMC 2049, 2054 (5th Cir. 1959); Wilson v. Crowley Maritime, 22 BRBS 459, 460, 462 n. 3(1989)(Jones Act, like the LHWCA is to be liberally construed in the claimant's favor); Cf. Gautreaux v. Scurlock Marine, Inc., 107 F.3d. 331 (5th Cir. 1997)(en banc)(reversing prior longstanding circuit law, held: (1) seamen in Jones Act negligence cases are bound to a standard of ordinary prudence in the exercise of care for their own safety, not to a lesser duty of slight care; (2) Jones Act employers are not held to a higher standard of care than that required under ordinary negligence); Smith v. Tow Boat Serv. & Management Inc., 66 F.3d 336 (9th Cir. 1995)(unpublished)(rejecting "slight care" standard); Karvelis v. Constellation Lines, S.A., 806 F.2d 49, 52-53 and n. 2 (2nd Cir. 1986), cert. denied, 481 U.S. 1015, 107 S.Ct. 1891 (1987)(approving jury instruction informing that both employer and employee, under the Jones Act, are charged with a duty of reasonable care under the circumstances); Robert Force, "Allocation of Risk and Standard of Care Under the Jones Act: Slight Negligence,' Slight Care'?", 25 J.Mar.L.& Comm. 1, 31 (1994). Under the Jones Act, a plaintiff making use of the "saving to suitors" clause, 28 U.S.C.A. § 1333, usually requests a jury trial in federal district court. Thus, under the Jones Act, a jury is generally the finder of fact and the issue of seaman status is a mixed question of law and fact.

[ED. NOTE: Article III, § 2 of the United States Constitution extends the judicial power of the United States to "all cases of admiralty and maritime jurisdiction. The Judiciary Act of 1789, revised at 28 U.S.C.A. §1333, gave exclusive admiralty jurisdiction to the federal district courts, "saving to suitors, in all cases, the right of a common law remedy where the common law is competent to give it." This clause is the means by which a plaintiff in a Jones Act claim has the right to request a jury trial. For a thorough discussion of the "saving to suitors" clause, see Gilmore and Black, The Law of Admiralty, 2d Ed. (1975).]

   From a practical standpoint, since the Jones Act and LHWCA focus on a worker's employment/duties from two separate viewpoints, the outcome of a case/claim may, to some extent, depend on the forum in which it is adjudicated. But note Figueroa v. Campbell Industries, 45 F.3d 311 (9th Cir. 1995) and see infra There will be occasions when, had the worker instituted an LHWCA claim, an administrative law judge might have found coverage under the LHWCA, but had the same worker, with the same factual situation, instituted a Jones Act claim, a federal district court jury might have found Jones Act coverage and there would not be a Judgment Not On Verdict (JNOV).

[ED. NOTE: For an example of what the Fifth Circuit has described as "a classic instance of the case that could have gone either way," see Abshire v. Seacoast Products, 668 F.2d 832 (5th Cir. 1982). See however the Ninth Circuit where the litigation under the LHWCA and Jones Act went both ways. Ramos v. Universal Dredging Corp., 15 BRBS 140 (1982), remanded from, 653 F.2d 1353 (9th Cir. 1981)(employer could waive situs and status arguments because it only presented issues of "personal coverage"- not subject matter jurisdiction), rev'g 10 BRBS 368, 372 (§§2(3) and 3(a) presented issues of subject matter jurisdiction that could not be waived by either party). Compare to Ramos v. Universal Dredging Corp., 547 F.Supp. 661 (D. Ha. 1982)(claimant was a seaman as a matter of law).

   And, in fact, at least under present Ninth Circuit case law the LHWCA and Jones Act seem to coexist. Figueroa v. Campbell Industries, 45 F.3d 311 (9th Cir. 1995) See also, Topic 1.4.6 for a discussion on this.]

   In McDermott, Inc. v. Boudreaux, 679 F.2d 452, 459 (5th Cir. 1982), the Fifth Circuit stated:

    Thus, despite our continued insistence that a Jones Act "seaman" and a "crew member" excluded from the Longshoreman's Act are one and the same (in other words that the statutes are mutually exclusive) we recognize that in a practical sense, a "zone of uncertainty" inevitably connects the two Acts. Confronted by conflicting evidence concerning a worker's duties or undisputed evidence concerning an occupation that exhibits the characteristics of both traditional land and sea duties, a fact finder might be able to draw reasonable inferences to justify coverage under either statute. (emphasis added).

   The Fifth Circuit in McDermott, however, went on to note that:

Even the ambiguous employee must elect a remedy, however. Section 5 of the Longshoremen's Act, 33 U.S.C. § 905, provides that the employer's liability under the Act is an exclusive remedy. Thus, we have held that the Longshoremen's Act and the Jones Act are "mutually exclusive," Bodden v. Coordinated Caribbean Transport, Inc., 369 F.2d 273, 274 (5th Cir. 1966), and that establishment of an employer's liability under the Longshoremen's Act "effectively abrogates any independent tort liability of the employer to its employees...." Ocean Drilling & Exploration Co. v. Berry Brothers Oilfield Service, Inc., 377 F.2d 511, 514 (5th Cir. 1967), cert. denied, 389 U.S. 849 (1967).

679 F.2d at 459 n.7.

   In Simms, 709 F.2d at 411, the Fifth Circuit went on to state:

...The recognition by this circuit that the Jones Act and the Longshoreman's Act each requires a "liberal application in favor of claimant to effect its purposes," McDermott, supra, 679 F.2d at 458, has further contributed to the zone of uncertainty and to the dilemma of injured workers within it. They, in reaping the rewards of such liberality, may find as Simms asserts is true here, that a formal victory as a harbor worker serves as a practical defect of what is perceived as the greater seaman's remedy, if prevailing under the Compensation Act indeed effectively precludes a subsequent opportunity for relief under the Jones Act. See G. Gilmore & Black, The Law of Admiralty 434-36 (2d ed. 1975)); 4 A. Larson, Workmen's Compensation Law § 90.51 (1983); 1 A Benedict on Admiralty § 23 (1982); 1 M. Norris, the Law of Maritime Personal Injuries §§ 8-11 (3d ed. 1975).

    While the mere acceptance of Compensation Act benefits without a formal adjudication of seaman status will not preclude a subsequent Jones Act suit, 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 in this circuit (and one about which the commentators suggest there is uncertainty).

709 F.2d 409, 411-12 (footnotes omitted).

   An unsuccessful plaintiff in a Jones Act case (i.e. where there is a finding of no actual Jones Act status) may still be able to bring a claim under the LHWCA since the period for filing a claim is tolled by the filing of the Jones Act claim. 33 U.S.C.A. 913(d). See also Young & Co. v. Shea, 397 F.2d 185 (5th Cir. 1968) (no collateral estoppel in compensation act proceedings following jury findings of no injury in Jones Act suit).

   The Fifth Circuit has held that where an administrative law judge issues a compensation order under the LHWCA ratifying a settlement agreement, a "formal award" is deemed to have been made and the injured party can no longer bring a Jones Act suit for the same injuries. Sharp v. Johnson Bros. Corp., 973 F.2d 423, 26 BRBS 59 (CRT) (5th Cir. 1992), cert. denied, 113 S. Ct. 2333 (1993). The court reasoned that once a final, formal award is made, the parties are no longer free to seek another mutually exclusive remedy.

   In the Fifth Circuit the entry of an order by the administrative law judge constituted a finding that the injuries were compensable under the LHWCA. By seeking and acquiescing to the finding, the plaintiff under the Jones Act case is collaterally estopped from contesting LHWCA coverage. Id.; Fontenot, 923 F.2d at 1133 ("...a finding of LHWCA coverage sought and obtained by the injured worker from the Department should preclude any subsequent action against his employer for the same injury.").

[ED. NOTE: See also Topic 1.4.6, Jurisdictional Estoppel, which includes a discussion of the Ninth Circuit position.]

   In South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251 (1940), overruled by McDermott International v. Wilander, 498 U.S. 377 (1991), an LHWCA case, the Court held that Congress had given to the deputy commissioner (district director), an administrative officer, the authority to determine who is a "member of a crew" under the LHWCA. If there was evidence to support the deputy commissioner's findings, they were conclusive. Id. In Senko v. La Crosse Dredging Corp., 352 U.S. 370 (1957), overruled by McDermott International v. Wilander, 498 U.S. 377 (1991), the Supreme Court applied the same rule to findings by the jury in Jones Act cases. 352 U.S. at 374 ("A jury's decision is final if it has a reasonable basis.").

   The Court in Wilander stated that it was not asked to reconsider this rule, but noted that the question of who is a "member of a crew" and therefore who is a "seaman" is better characterized as a mixed question of law and fact. When the underlying facts are established, and the rule of law is undisputed, the issue is whether the facts meet the statutory standard.

   Significantly, the Court in Wilander summed up the LHWCA/Jones Act clash as follows:

It is for the court to define the statutory standard. "Member of a crew" and "seaman" are statutory terms; their interpretation is a question of law. The jury finds the facts and, in these cases, applies the legal standard, but the court must not abdicate its duty to determine if there is a reasonable basis to support the jury's conclusion. If reasonable persons, applying the proper legal standard, could differ as to whether the employee was a "member of a crew," it is a question for the jury. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-251 (1986). In many cases, this will be true.

Wilander, 498 U.S. at 356, 111 S. Ct. at 818.

   The inquiry into seaman status is of necessity fact-specific; it will depend on the nature of the vessel, and the employee's precise relation to it. See Desper v. Starved Rock Ferry Co., 342 U.S. 187, 190 (1952) ("The many cases turning upon the question whether an individual was a seaman' demonstrate that the matter depends largely on the facts of the particular case and the activity in which he was engaged at the time of injury."). Nonetheless, summary judgment or a directed verdict is mandated where the facts and the law will reasonably support only one conclusion. Anderson, 477 U.S. at 248, 250-51; Texas Co. v. Gianfala, 222 F.2d 382, rev'd per curium, 350 U.S. 879 (1955); Texas Co. v. Savoie, 240 F.2d 674 (5th Cir. 1957); See also Abshire v. Seacoast Products, Inc., 668 F.2d 832 (5th Cir. 1982)(issue of seaman status under Jones Act is to be left to jury even when claim to seaman status appears to be relatively marginal one; "only rarely may a district judge conclude as a matter of law that an injured individual is not a seaman."); Barrios v. Louisiana Const. Materials Co., 465 F.2d 1157 (5th Cir. 1972), citing Senko v. La Cross Dredging Corp., 352 U.S. 370, 77 S.Ct. 415 (1957); rehearing denied 353 U.S. 931, 77 S.Ct. 716 and Grimes v. Raymond Concrete Pile Co., 356 U.S. 252, 78 S.CT. 687 (1958); Producers Drilling Co. v. Gray, 361 F.2d 432 (5th Cir. 1966)(under same circumstances workers are seaman as a matter of law); Soncie v. Trantwein Bros., 275 Cal. App. 2d. 20, 25-26 (1969)(held: bargehand may be summarily adjudged "seaman" as a matter of law); Longmeie v. Sea Drilling Co., 610 F.2d 1342 (5th Cir. 1980).

   However summary judgements on the issue of seaman status:

depend largely on the facts of a particular case, or as stated, or the totality of circumstances. It would be the rare factual situation where the question could be resolved as a matter of law. The Second Circuit put it well in Hawn v, American S.S. Co., 107 F.2d 999 (2d Cir. 1939):

It is impossible to define the phrase, "member of a crew," in general terms; the words are colloquial and their fringe will always be somewhat ragged. Perhaps the best hope is that, as the successive variants appear, they will finally serve rudely to fix the borders."

Bodden v. Coordinated Caribbean Transport, Inc., 369 F.2d 273, 275 (5th Cir. 1966).

   More recently the Supreme Court espoused:

The seaman injury is a mixed question of law and fact, and it often will be inappropriate to take the question from the jury. Nevertheless, "summery judgement or a directed verdict is mandated where the facts and the law will reasonably support only one conclusion."

Harbor Tug and Barge Co. V. Papai, 117 S.Ct. 1535 (1997), citing McDermott International, Inc. v. Wilander, 498 U.S. 337, 356 (1991) and Chandris, Inc. v. Latsis, 515 U.S. 347, 368-369.

   The situation is complicated by the fact that an OALJ case is never routed through the federal district court during its appeal process. (The appeal process is as follows: Office of Administrative Law Judges to the Benefits Review Board to the appropriate circuit court to the U.S. Supreme Court.) As noted in McDermott, Inc. v. Boudreau, 679 F.2d 452 (5th Cir. 1982), this creates a "zone of uncertainty". See, e.g., Fontenot v. AWI, Inc., 923 F.2d 1127 (5th Cir. 1991).

[ED. NOTE: For a well-researched historical treatment of the tension between administrative tribunals (district director/administrative law judge) and the federal courts, see Thorne, "The Impact of the Longshore and Harbor Workers' Compensation Act on Third Party Litigation," Tulane University School of Law Admiralty Law Institute (1993), 68 Tul. L. Rev. 557 (1993).]

   At least one commentator, Thorne, supra, acknowledges that a final finding of non-seaman status by an administrative law judge may bar a Jones Act suit. (Credit, in part, for this deference is attributed to the emergence of independent administrative law judges.) See Sharp v. Johnson Bros. Corp., 973 F.2d 423 (5th Cir. 1992), cert. denied, 113 S. Ct. 2333 (1993); Fontenot v. AWI, Inc., 923 F.2d 1127, 1132 (5th Cir. 1991); Richendollar v. Diamond M Drilling Co., 784 F.2d 580, 582 n. 1 (5th Cir. 1986), aff'd in part and rev'd in part, on recon., en banc, 819 F.2d 124 (5th Cir.), cert. denied, 484 U.S. 944 (1987); Simms v. Valley Line Co., 709 F.2d 409 (5th Cir. 1983; Hagens v. United Fruit Co.,135 F.2d 842 (2nd Cir. 1943). See also Harmon v. Baltimore & Ohio R.R., 560 F. Supp. 914 (D. D.C. 1983), aff'd, 741 F.2d 1398 (D.C. Cir. 1984). Cf. Vilanova v. United States, 851 F.2d 1, 4 (1st Cir. 1988), cert. denied, 488 U.S. 1016 (1989); Grijalva v. United States, 781 F.2d 472 (5th Cir.), cert. denied, 479 U.S. 822 (1986).

[ED NOTE: From a practical standpoint, an injured worker may now think twice before choosing to pursue a Jones Act claim in lieu of a LHWCA claim. See Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997)(en banc)(reversing prior longstanding circuit law, held (1) seaman in Jones Act negligence cases are bound to a standard of ordinary prudence in the exercise of care for their own safety, not to a lesser duty of slight care; (2) Jones Act employers are not held to a higher standard of care than that required under ordinary negligence); See also Smith v. Tow Boat Serv. & Management, Inc., 66 F.3d 336 (9th Cir. 1995)(unpublished)(rejecting "slight care" standard); Karvelis v. Constellation Lines, S.A., 806 F.2d 49, 52-53 and n.2 (2nd Cir 1986), cert. denied 481 U.S. 1015, 107 S.Ct. 1891 (1987)(approving jury instruction informing that both employer and employee under Jones Act are charged with duty of reasonable care under the circumstances).

   Gautreaux concluded that "[t]he reasonable person standard under the Jones Act becomes one of the reasonable seaman in like circumstances. To hold otherwise would unjustly reward unreasonable conduct and would fault seaman only for their gross negligence, which was not the contemplation of Congress." See Robert Force, "Allocation of Risk and Standard of Care Under the Jones Act: Slight Negligence,' Slight Care'?", 25 J.Mar.L. &Comm. 1, 31 (1994). Thus, a worker preferring the security of workers compensation will file under the LHWCA coverage rather than gamble on a Jones Act claim where a finding of unreasonableness on the part of the maritime worker could deny him coverage.

[ED. NOTE: Naturally subsumed within this test is the requirement that there must be a "vessel". For a definition of "vessel" see Topic 1.4.3. Also note that in Papai the Court has now defined what as "identifiable group of vessels" or "fleet" actually is. See infra at Topic 1.4.3]

   A variation of this test was first developed by the Fifth Circuit in Offshore Co. v. Robison, 266 F.2d 769 (5th Cir. 1959), and refined in McDermott, 679 F.2d 452. In Wilander, the Supreme Court adopted this test as defined in McDermott, and recently, and most significantly, this test was revised by the Court in Chandris.

   In Wilander, the Court addressed the type of activities that a seaman must perform and held that under the Jones Act, a seaman's job need not be limited to transportation related functions that directly aid in the vessels navigation. The Court determined that, although "it is not necessary that a seaman aid in navigation or contribute to the transportation of the vessel, a seaman must be doing the ship's work." 498 U.S. at 355. The Court concluded that under both the Jones Act and general maritime law "all those with that peculiar relationship to the vessel' are covered under the Jones Act, regardless of the particular job they perform." Id. at 354.

   Specifically, the Wilander Court stated:

We believe the better rule is to define "master or member of a crew" under the LHWCA, and therefore "seaman" under the Jones Act, solely in terms of the employee's connection to a vessel in navigation. This rule best explains our case law, and is consistent with the pre-Jones Act interpretation of "seaman" and Congress' land-based/sea-based distinction. All who work at sea in the service of a ship face those particular perils to which the protection of maritime law, statutory as well as decisional, is directed. ... It is not the employee's particular job that is determinative, but the employee's connection to a vessel.

498 U.S. at 354, 111 S. Ct. at 817 (emphasis added).

   In Chandris, the Court clarified what employment-related connection to a vessel in navigation is necessary for a maritime worker to qualify as a seaman under the Jones Act. The Chandris Court determined what relationship a worker must have to the vessel in navigation regardless of the specific tasks the worker undertakes, in order to obtain seaman status.

   The Chandris Court articulated two basic principles of seaman status:

(1) " seamen do not include land-based workers'" 115 S. Ct. 2172, 2185 (quoting Wilander, 498 U.S. at 348); and (2) "Jones Act coverage depends not on the place where the injury is inflicted but on the nature of the seaman's service, his status as a member of the vessel, and his relationship as such to the vessel and its operation in navigable waters.'" Id. (quoting Swanson v. Marra Bros., 328 U.S. 1, 4 (1946)). Further, the Chandris Court acknowledged that cases under the LHWCA "recognize the converse: land-based maritime workers injured while on a vessel in navigation remain covered by the LHWCA." Id. at 2186. The Court added: "A maritime worker does not become a member of a crew' as soon as the vessel leaves the dock." Id.

   Thus, the Court, in Chandris, developed a status-based standard, that although it determines Jones Act coverage without regard to the precise activity in which the worker is engaged at the time of the injury, nevertheless best furthers the Jones Act's remedial goals. As set out above, to qualify as a seaman under the Jones Act (and therefore be excluded under the LHWCA), the worker's duties must contribute to the function of the vessel or to the accomplishment of its mission, and the worker must have a connection to a vessel in navigation (or an identifiable group of vessels) that is substantial in both duration and nature. 115 S.Ct. 2172. Thus, the employment connected to a vessel in navigation must be substantial both in terms of the nature of the work done and in terms of duration for there to be seaman status.

   Importantly for LHWCA purposes, the Chandris Court noted the Fifth Circuit's "temporal gloss" of Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067 (5th Cir. 1986) (en banc), wherein a worker whose regular duties require him to divide his time between vessel and land, had to have his crew status determined in the context of his entire employment with his current employer. Citing the rule of thumb used by the Fifth Circuit in ordinary cases, the Court stated: "a worker who spends less than about 30 percent of his time in the service of a vessel in navigation" is not performing a substantial portion of work "on board" and the worker is not a crew member. 115 S.Ct. at 2192; see Barrett, 781 F.2d at 1075; see also id. at 1077 (Rubin, J., dissenting).

   However, the Court cautioned that "seaman status is not merely a temporal concept" but rather is one element to be considered. Chandris, at ___U.S.___, 115 S.Ct. at 2191. The Ninth Circuit has noted that "the duration of time aboard a vessel is not enough, standing alone, to determine status as a seaman under the Jones Act." Boy Scouts of America v. Graham, 76 F.3d 1045 (9th Cir. 1996); See also Heise v. Fishing Co. Of Alaska, Inc., 79 F.3d 903 (9th Cir. 1996) for a Ninth Circuit application of the Chandris formula. See also O'Hara v. Weeks Marine, Inc. 928 F.Supp. 257 (E.D.N.Y. 1996) for an application of Chandris by a district court in the First Circuit. The Chandris Court declared that "[t]he ultimate inquiry is 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." 115 S.Ct. at 2191.

   In Wilson v. Crowley Maritime, 30 BRBS 199 (1996), the Board followed Chandris in holding that although a claimant spent 75% of his time aboard employer's barges, as a "cargo operations manager," claimant was not a seaman since most of his duties consisted of preparing for and supervising the loading of employer's dock-tied barges and claimant's duties upon completion of this task. Thus, the Board found that claimant's duties with employer were those traditionally associated with longshore work. Moreover, claimant was a land-based employee in that he lived on shore, had a shore-based office, and except for a few occasions, in emergency situations, never went to sea with the barges.

   See also Smith v. Alter Barge Line, Inc., 30 BRBS 87 (1996) (decedent who worked as a welder repairing barges and as a mate trainee/deckhand on tugboat was covered under LHWCA because most of his work was as a welder).

   The Court also rejected the "voyage test" (anyone working on board a vessel for the duration of a "voyage" in furtherance of the vessel's mission has the necessary employment-related connection to qualify as a seaman). The voyage test would have allowed the worker's activities at the time of the injury to be controlling. This voyage test relied on previous Court statements that the Jones Act was designed to protect maritime workers who are exposed to the "special hazards" and "particular perils" characteristics of work on vessels at sea. 115 S. Ct. at 219. ("Seaman status is not coextensive with seaman's risks." Id.)

   Chandris approved the "fleet seaman doctrine" under which a worker who works on several vessels is a seaman only if he works on a fleet of vessels under common control. See e.g., Reeves v. Mobile Dredging & Pumping Co., Inc., 26 F.3d 1247, 1995 AMC 352 (3d Cir. 1994); Vowell v. G & H Towing Co., 870 F.Supp. 162 (S.D.Tex. 1994); Harbor Tug and Barge Co. v. Papai, 117 S.Ct. 1535 (1997), 1997 U.S. LEXIS 2846 (refined fleet doctrine). Prior employments with independent employers can not be considered in making the seaman status inquiry since that would undermine "the interest of employers and maritime workers alike in being able to predict who will be covered by the Jones Act...before a particular work day begins." Papai, 117 S.Ct. 1535. The Court went on to state that there would be no principled basis for limiting which prior employments are considered for determining seaman status. It does not matter that all of the worker's employment was through the same hiring hall or that the union agreement classified claimant as a deckhand. For more on fleeting doctrine, see Topic 1.4.3.

       In Anders v. Ormet Corp., 874 F.Supp. 738 (M.D.La. 1994), a worker who accepted compensation benefits after an Administrative Law Judge found him not to be a seaman was collaterally estopped from claiming seaman status. But see Figueroa v. Campbell Indus., 45 F.3d 311 (9th Cir. 1995) (example of dual coverage where court found that while the LHWCA is the exclusive remedy for a covered "employee," "employee" does not include "crew member/master," and therefore employee was allowed to recover both LHWCA benefits and pain/suffering under the Jones Act because a substantial portion of employment occurred on the tug).

1.4.3 Vessel

[ED. NOTE: One must keep in mind that while there must be a determination that there is a "vessel" for purposes of the Jones Act (and therefore, the exclusion of the right to benefit under the LHWCA), the lack of vessel status does not necessarily preclude LHWCA coverage.]

   As defined by Congress, a "vessel" is "every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water." 1 U.S.C. § 3. See also 46 U.S.C. § 801. Obviously, this is a very broad definition. In fact, under a literal interpretation, any floating structure that could be used for transportation is a vessel. See John T. Lozier, Comment, 20 Tul.Mar.L.J. 139, 143 (1995). Thus, a barge with no mobility of its own, would fit the description. (See, however, the discussion as to whether a barge's transportation function is primary or has become incidental to its use as a work platform, infra.)

   Congress may have attempted to narrow the definition of "vessel" in the Shipping Act of 1916, where "vessel" is defined as "all water craft and other artificial contrivances of whatever description and at whatever stage of construction, whether on the stocks or launched, which are used or capable of being or are intended to be used as a means of transportation on water." 46 U.S.C. §§ 801 (1988). Unfortunately, this definition only adds to the variety of other ambiguous definitions.

   The statutory definition of vessel that applies to the LHWCA is equally unhelpful. As amended in 1972, Section 2(21) of the LHWCA defines "vessel" as:

any vessel upon which or in connection with any person entitled to benefits under this Act suffers injury or death arising out of or in the course of his employment, and said vessel's owner, owner pro hac vice, agent, operator, charter or bare boat charterer, master, officer, or crew member.

33 U.S.C. § 902(21).

   The jurisprudential definition of "vessel" has come to include, but not be limited to ships, barges, drilling barges, jack-up rigs, submersibles, and semi-submersibles. Note, these last three are not fixed platforms, rather they are floating structures, or structures capable of flotation.

[ED. NOTE: Fixed platforms will be addressed infra.]

    A submersible rig has hulls upon which it floats while being towed to the work site. At the site, the hulls are flooded and "submerged" until they come to rest on the bottom. The drilling deck (sometimes called the Texas deck) is built on long steel columns that extend upward from the hulls. Hence, the drilling deck is well above the water. Like jack-up rigs, submersibles are limited to relatively shallow water.

   A jack-up is constructed so that it floats with its "legs" up when being moved to the work site. Once at the site, the legs are cranked down to the ocean floor. Then the hull is "jacked up" on the same legs allowing the work area to be raised about 50 feet above the water level. Jack-up rigs are limited to drilling in water depths of up to 350 feet.

   A drill barge or drill ship is a barge with a drilling derrick that is towed to location and anchored in place. It is essentially shaped like any ocean-going ship. However, drilling equipment (and other modifications) make a drill ship distinctive. Drill ships are the most mobile of rigs and are often used to drill discover, or wildcat, wells in deep, remote offshore waters.

   A semi-submersible is similar to a submersible in that it has two hulls upon which the rig floats as it is being towed to the work site. As semi-submersible is a cross between a submersible and a barge. Once at the site, the hulls are designed so that, when flooded, they do not settle on the bottom. Rather, they submerge about 50 feet after which special anchors are lowered to complete the mooring of the rig. In reality, a semi-submersible floats but not on the water's surface.

[ED. NOTE: For illustrations and a discussion of oil-well drilling, including detailed explanations of the drilling rig and its components, see A Primer of Oil-Well Drilling, by Ron Baker (Petroleum Ext. Service: The Univ. Of Texas at Austin, Fourth Ed. 1979).]

   The basic criterion used to establish whether a structure is a vessel is "the purpose for which [it] is constructed and the business in which it is engaged." The Robert W. Parsons, 191 U.S. 17, 30, 24 S.Ct. 8, 12 (1903). "The fact that it floats on the water does not make it a ship or a vessel " Cope v. Vallette Dry-Dock Co., 119 U.S. 625, 627 (1887). The business or employment of a watercraft is determinative, rather than its size, form, capacity, or means of propulsion. See 119 U.S. at 629-30.

117 S.Ct 1535 (1997).

   However a strong dissent by Justice Stevens, with whom Justices Ginsberg and Berger joined, noted that if all of the deckhand's work had been preformed by the worker for one towing company, there "would be no doubt about [his] status as a seaman." 117 S.Ct 1535 (1997). As the dissent stated, "Today, the majority apparently concludes that an employee is not necessarily protected by the Jones Act even if he was injured aboard a vessel in navigation and his work over the proceeding two years was primarily seaman's work." 117 S.CT 1535 (1997)

   In Robison, the Fifth Circuit had listed as an alternative requirement of seaman status "substantial work" instead of being permanently assigned to a vessel. Barrett v. Chevron U.S.A., Inc., 781 F.2d 1067 (5th Cir. 1986) (en banc), went a step further, focusing on the duration of an employee's assignment in relation to his entire employment. See also Reeves v. Mobile Dredging & Pumping Co., 26 F.3d 1247 (3rd Cir. 1994); Johnson v. Continental Grain Co., 58 F.3d 1232 (8th Cir. 1995); but see Fisher v. Nichols, 81 F.3d 319, 323 (2nd Cir. 1996)(rejecting common ownership or control requirement).

[ED. NOTE: There are possibly two instances when a maritime worker might not be attached to either a vessel or technically to a fleet of vessels and yet may still have seaman status under the Jones Act. However, the reader is cautioned that while Papai did not mention "anchor handlers or "river pilots" the same Papai fleet doctrine may, and in the case of pilots, probably does now apply to issues of status involving these types of work (remember Bach II). The result of applying the Papai test is not a per se exclusion of pilots from Jones Act coverage. Blue water pilots do sleep on there boats for days or weeks at a time, and thus are more likely to be found as passing the seaman's status test. This is differentiated from the brown water pilots that tend to sleep ashore at night. The facts must be studied closely in order to determine the strength of the connection to the vessel. Thus the following discussion should be viewed cautiously.]

   In Bertrand v. International Mooring & Marine, 700 F.2d 240 (5th Cir. 1983), cert. denied, 464 U.S. 1069 (1984), anchor handlers who spent all of their time aboard vessels "used" by their employer, met the fleet general exception and would be covered under the Jones Act. This case should be noted with care, however, since it is probably limited to a particular fact situation.

   In Evans v. United Arab Shipping Co., 767 F. Supp. 1284 (D.N.J. 1991), the court found that, based on Wilander, a river pilot is a Jones Act seaman because at the time the Jones Act was passed prevailing general maritime law categorized a river pilot as a seaman. The district court concluded that if a plaintiff's position is indispensable to a vessel even though there is no permanency, the permanency can be overlooked if the person is performing an essential navigation function. The district court concentrated on the river pilot's essential navigational function and substitution for the vessel's captain/master.

   In Harwood v. Partredereit, 944 F.2d 1187 (4th Cir. 1991), cert. denied, 112 S. Ct. 1265 (1992), however, the Fourth Circuit found the river pilot not to be a Jones Act seaman, but rather, covered under the LHWCA. The court found that permanent attachment to a vessel or fleet of vessels was still a requirement under Wilander. The strong and well-written dissent in this case is noteworthy and makes reference to the historic position of the United States Employment Compensation Commission (the federal agency charged with compensation matters when the LHWCA was passed). Pre-1972 amendment jurisprudence held that pilots were not covered by the LHWCA.

   In Bach v. Trident Steamship Co., 920 F.2d 322 (5th Cir.), vacated, 111 S. Ct. 2253 (1991), reinstated on recon., 947 F.2d 1290, cert. denied, 112 S. Ct. 1996 (1992), the Fifth Circuit held that a river pilot is not a Jones Act seaman because he is not permanently attached to a vessel or fleet of vessels. The Supreme Court vacated and remanded Bach for further consideration in light of Wilander, 111 S. Ct. 2253 (1991) (issue of river pilot raised but not decided). The Fifth Circuit on remand again found that a river pilot is not a seaman stating: "We did not base our decision on Bach's seaman status on the relationship of his duties to navigation. Indeed, this issue was never in doubt. Instead, we concluded that Bach was not a seaman because he was not permanently assigned to any particular vessel or fleet of vessels." 947 F.2d at 1291.

   Similarly, in Stoller v. Evergreen, (N.D. Calif. 1992) (unpublished), the northern district of California held that a pilot should not be a Jones Act seaman because no employment relationship existed with the vessel.

[ED. NOTE: Thus, both the Fourth and the Fifth Circuits, have held that a river pilot is not a Jones Act seaman. Since a river pilot performs his duties on navigable water aiding in navigation and maritime commerce, he should be found to be covered under the LHWCA. Ironically, a river pilot possibly may be entitled to an unseaworthiness remedy under the general maritime law as a "Sieracki Seaman." See Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946) (longshoreman injured while working aboard a ship was classified as a "seaman" and therefore entitled to sue under the unseaworthiness doctrine). This "Sieracki Seaman" classification was theoretically supposed to have ended with the enactment of the 1972 amendments to the LHWCA. In return for giving up general maritime law/unseaworthiness remedies for recovery, longshore and harbor workers were to benefit from the landward extension of coverage under the amended LHWCA.]

   In the Fifth Circuit, the Sieracki concept (see note above) is not completely obliterated. See Cormier v. Oceanic Contractors, 696 F.2d 1112 (5th Cir.), cert. denied, 464 U.S. 821 (1983); Aparicio v. Swan Lake, 643 F.2d 1109 (5th Cir. 1981). In Smith v. Harbor Towing & Fleeting, 910 F.2d 312 (5th Cir. 1990), cert. denied, 499 U.S. 906 (1991), however, the Fifth Circuit held that the remedy of unseaworthiness was available only to seamen or members of the crew of a vessel. But see: Blancq v. Hapag-Lloyd, 1997 WL 732421 (E.D.La.); Laakso v. Mitsui & Co. U.S.A., Inc., 1989 WL 149186 at *8-*9 (Dec. 6, 1989 E.D.La)(unpublished but still has precedential value under 5th Circuit Local Rules); Clark v. Solomon Navigation, Ltd., 631 F.Supp. 1275 (S.D.N.Y. 1986).

   The Third, Fourth, and Ninth Circuits have held to the contrary. (Remedy of unseaworthiness is available to non-seamen.) Normile v. Maritime Co. of Philippines, 643 F.2d 1380 (9th Cir. 1981); Lynn v. Heyl & Patterson, Inc., 636 F.2d 1209 (3d Cir. 1980), United States Lines v. United States, 593 F.2d 570 (4th Cir. 1979).

   The Board has held that a claimant is not a Jones Act seaman where the worker's assignment to a vessel was random, sporadic, and transitory; and where the claimant worked not only on the employer's 20 mooring launches, but also aboard tugboats and ocean-going vessels which employer had contracted to moor. Griffin v. T.Smith & Son, Inc., 25 BRBS 196 (1992). The Board reasoned that the claimant was never assigned to nor did he perform a substantial part of his work aboard any vessel; and claimant lacked any permanent connection with a fleet of vessels. Therefore, the claimant was deemed to be a linesman and boat operator who moored vessels at docks as a linesman and who drove boats around ships as a boat operator.

   Certain structures which are used for the exploration and production of oil and gas have produced a great amount of litigation over vessel status. In Offshore Co. V. Robison, 266 F.2d 769 (5th Cir. 1959), the court held that a floating submersible jack-up oil rig (see supra for definition) is a vessel since its inherent characteristic is the ability to be towed from place to place. Id. Since Robison, many structures designed to be moved on a regular basis have been held to be vessels. See Producers Drilling Co. V. Gray, 361 F.2d (5th Cir. 1966) (submersible drilling barge designed to transport drilling equipment, submerge for drilling operation, and refloat for movement to new site, is a vessel); Hicks v. Ocean Drilling & Exploration Co., 512 F.2d 817 (5th Cir. 1975) (submersible oil storage facility is a vessel); Parks v. Dowell Div. of Dow Chem. Corp., 712 F.2d 154 (5th Cir. 1983) (drilling tender, capable of transporting men and equipment, which is anchored for extended periods of time to fixed offshore platform, is a vessel).

   A "movable drilling unit" which had been moved only twice in 20 years and was attached to the bottom by pilings driven into the sea bed, though designed for navigation, was not "in navigation" at the time of injury and not intended to be moved and thus, was not a vessel. Hemba v. Freeport McMoran Energy Partners, 811 F.2d 276 (5th Cir. 1987); Marathon Pipe Line v. Drilling Rig Rowan/Odessa, 761 F.2d 229, 233 (5th Cir. 1985) (floating, movable jack-up drilling rig is a vessel for purposes of admiralty law); Lewis v. Keyes 303, Inc., 834 F. Supp. 191 (S.D. Tex. 1993) (floating, movable jack-up drilling rig).

   However, several cases illustrate that floating structures are not always what they seem to be, or what they were constructed to be. Although these cases deal primarily with barges that have become work platforms, a case dealing with a small raft has provided the basis for a loose test to determine whether or not a platform is a "vessel." Bernard v. Binnings Constr. Co., 741 F.2d 824 (5th Cir. 1984).

   Floating work platforms which were determined not to be vessels had at least some of the following criteria in common:

(1) The structures were constructed/re-constructed for use primarily as work platforms;

(2) The structures were moored/secured when the injury occurred;

(3) Although "capable" of movement and sometimes moved, the transportation function was merely incidental to the primary purpose of serving as a work platform;

(4) The structure generally had no navigational lights and/or navigational equipment;

(5) The structures had no means of self-propulsion;

(6) The structures were not registered with the Coast Guard;

(7) The structures did not have crew quarters/a galley.

   This test is a composite based principally on Bernard, 741 F.2d 824, and the following noted cases. Bernard specifically set out the first three criteria. See 741 F.2d at 831.

   See also Green v. C.J. Langenfelder & Sone, Inc.,30 BRBS 77 (May 9, 1996) (dredge, with no engine or navigational capabilities except for pull lines, which was used to excavate oysters and load them onto barges, and moored to virtually the same position during each 6-month work cycle held not to be a vessel).

   See also Burchett v. Cargill, Inc., 48 F.3d 173 (5th Cir. 1995) (midstream bulk cargo transfer barge which was constructed/used primarily as work platform, which had been moored for ten years, and whose transportation function was incidental to its primary purpose, was not a vessel); Sharp v. Wausau Ins. Cos., 917 F.2d 885 (5th Cir. 1990), amended sub nom. Sharp v. Johnson Bros. Corp., 923 F.2d 46 (5th Cir. 1991) (four barge assemblies, including two spud barges and two flat deck barges used in connection with rebuilding a bridge and which were frequently moved during the work could be vessels--case remanded to trial court for a jury determination); Ellender v. Kiva Constr. & Eng'g, 909 F.2d 803 (5th Cir. 1990) (general purpose and spud barges assembled solely to build a platform were transported to a job until its completion; a crane temporarily positioned on the spud barge is not equivalent to a derrick barge); Menard v. Brownie Drilling Co., 1991 U.S. Dist. LEXIS 13531 (E.D. La. 1991) (workover rig placed on barge which was lowered and sunk until the job was finished, then floated to a new location was not a barge).

   See also Gremillion v. Gulf Coast Catering Co., 904 F.2d 290 (5th Cir. 1990) (a quarter boat barge specially equipped with living quarters/work area brought to a shore, and which was spudded down and moored, was not a vessel); Ducrepont v. Baton Rouge Marine Enters., 877 F.2d 393 (5th Cir. 1989) (cargo barge converted to a stationary work platform by permanently mooring to shore and only moved short distances due to water level changes was not a vessel); Davis v. Cargill, Inc., 808 F.2d 361 (5th Cir. 1986) (cargo barge converted to a permanent painting and sandblasting work platform anchored to the river bed and permanently attached to land was not a vessel though moved to accommodate changing river tides).

   See also Waguespack v. Aetna Life & Casualty Co., 795 F.2d 523 (5th Cir. 1986), cert. denied, 479 U.S. 1094 (1987) (small floating work platform permanently located in a slip and used to facilitate removal of grain barge covers is not a vessel); Blanchard v. Engine & Gas Compressor Servs., 575 F.2d 1140 (5th Cir. 1978), question certified, 590 F.2d 594 (5th Cir. 1979) (barges sunk in marsh to use as compressor station and not moved in 15 years, with no intent to move are not vessels); Cook v. Belden Concrete Prods., 472 F.2d 999 (5th Cir.), cert. denied, 414 U.S. 868 (1973) (barge which became a construction platform on which concrete barges were built, served as a stationary platform and was not a vessel).

   See also Ducote v. Keeler & Co., 953 F.2d 1000 (5th Cir. 1992) (for purposes of determining whether floating structure is a "vessel," one objective factor used to determine whether the primary purpose of the structure is that it is used for transportation, is raked bow. Although the mere presence of raked bow does not mean that the floating structure is a "vessel," raked bow is a piece of evidence from which conflicting inferences could be drawn).

   But see Tonnesen v. Yonkers Contracting Co., Inc., 82 F.3d 30 (2d Cir. 1996) (Second Circuit disagreed with regard to the first Bernard factor (namely, the Fifth Circuit's focus on the original purpose of the structure), finding that the first prong of the test should focus on the present purpose of the floating structure).

   In this regard, it is important to note that a floating dry dock may serve as a floating platform. See e.g., Bernard, 741 F.2d at 832. Tonnesen is also noteworthy for the fact that the Second Circuit reversed the district court's summary judgement on seaman status, remanding the matter for further fact-finding as to whether the floating platform was "a vessel in navigation." The Second Circuit noted several Fifth Circuit cases dealing with the factual determination necessary to determine vessel status. The circuit court determined that factual issues prevented summery judgement.

   Construction and Repairs

   A ship under construction on land, not on or in navigable waters and incapable of floating, is not a vessel. Richendollar v. Diamond M Drilling Co., 819 F.2d 124 (5th Cir.), cert. denied, 484 U.S. 944 (1987). (Note, however, that a person working on such a vessel would be covered under the LHWCA as a shipbuilder.)

   A hull under construction, floating on navigable waters, but not itself navigable, which did not yet have navigation equipment installed and had not undergone dock and sea trials, and had no crew assigned to it, did not qualify as a "vessel." Rosetti v. Avondale Shipyards, 821 F.2d 1083 (5th Cir. 1987), cert. denied, 484 U.S. 1008 (1988).

   A vessel being repaired on land does not necessarily lose its vessel status. In Chandris, Inc. v. Latsis, the Court held that a vessel does not cease to be "in navigation" merely because it is taken to a dry dock or shipyard to undergo repairs. __U.S.__, 115 S.Ct. 2172, 2193 (1995). The question of whether repairs are sufficiently significant so that the vessel can no longer be considered to be in navigation is a question of fact for the jury to decide. Id.

<   One must keep in mind that Section 903 provides compensation to workers who die or are injured while repairing or building a vessel. The above cases are included in the materials to remind the reader that the lack of a vessel means there is no Jones Act coverage, not that there is no LHWCA coverage.

   Helicopters, Seaplanes, etc.

   An amphibious military vehicle known as a LARC has been found to be a vessel under the LHWCA. Stevens v. Metal Trades, 22 BRBS 319 (1989).

   Aircraft, helicopters, and even seaplanes are ordinarily not vessels, since their purpose is to fly through the air, not to navigate on water. See Smith v. Pan Air Corp., 684 F.2d 1102 (5th Cir. 1982); Barger v. Petroleum Helicopters, 692 F.2d 337 (5th Cir. 1982), cert. denied, 461 U.S. 958 (1983); Herbert v. Air Logistics, Inc., 720 F.2d 853 (5th Cir. 1983).

   A seaplane that is navigating on the water may be a vessel, however. Reeves v. Offshore Logistics, Inc., 720 F.2d 835 (5th Cir. 1983).

   Airplane/helicopter pilots are not excluded from coverage under the LHWCA on the grounds that they are members of crews. A pilot traveling over water, however, is not automatically covered under the LHWCA as a maritime employee.

   In Ward v. Director, OWCP, 684 F.2d 1114, 15 BRBS 7 (CRT) (5th Cir. 1982), rev'g 14 BRBS 74 (1981), cert. denied, 459 U.S. 1170 (1983), the court cited Smith, 648 F.2d 1102, reiterating that a plane is not a vessel under the Jones Act and, therefore, that the airplane pilot, a fish spotter, was not excluded from LHWCA coverage as a member of a crew. The court found coverage because the claimant was injured on actual navigable waters. Importantly, the fish spotter was found to be engaged in maritime employment over navigable waters. See also Barnard v. Zapata Haynie Corp., 23 BRBS 267 (1990).

   A submerged cleaning and maintenance platform known as a SCAMP has been found to be a vessel. Wenzel v. Seaward Marine Services, Inc., 709 F.2d 1326 (9th Cir. 1983)(Relying on the "Bullis test," Bullis v. Twentieth Century Fox Film Corp., 474 F.2d 392, 393 (9th Cir. 1973) the Ninth Circuit found that a SCAMP - a saucer-shaped unit six feet in diameter and twenty inches deep, which traveled underwater along a ship's hull and could be operated manually by divers - was a vessel.) The Bullis test was reaffirmed by the Ninth Circuit in Gizoni v. Southwest Marine Inc., 909 F.2d 385 (9th Cir. 1990), aff'd, 502 U.S. 81, 112 S.Ct. 486 (1991).

   It has been suggested that "three men in a tub would also fit within our definition [of vessel], and one probably could make a convincing case for Jonah inside whale." Burks v. American River Transp. Co., 679 F.2d 69, 75 (5th Cir. 1982).

Id. at 568.

   After analyzing the withdrawn-from-navigation factors and the work platform attributes, and comparing the characteristics of the Biloxi Belle with the structures which have been held as a matter of law to be non-vessels, the Fifth Circuit concluded that "there can be little doubt that indefinitely moored, shore-side, floating casinos, such as the Biloxi Belle, must be added to that list." Id. at 570. Consequently, the court held that the Biloxi Belle was removed from navigation and was a work platform so that it did not qualify as a vessel. Id.

   The weight of the trial court decisions also establish that a floating dockside casino is not a vessel. Ketzel v. Mississippi Riverboat Amusement, Ltd., 1995 AMC 1385, 867 F. Supp. 1260 (S.D. Miss. 1994) ("Similar to [a] floating factory' and [a] floating dance hall' , the Biloxi Belle is nothing but a floating casino' it is not a vessel'"); In Re: Biloxi Casino Belle Inc., White v. MRA, LTD, d/b/a/ Casino Belle of Tunica, 176 Bankr. 427 (1995).

[ED. NOTE: Ironically, the trial judge in Ketzel went further than simply making a determination that there was no "vessel" for the purposes of the Jones Act coverage. The trial judge improperly ruled on the question of LHWCA coverage: "Ketzel's complaint alleged, alternately, that her claim stated a cause of action under the [LHWCA]. However, Ketzel's job as a cocktail waitress is not included among the occupations intended by Congress to constitute Longshoremen.'" Ironically, the trial judge in Ketzel went further than simply making a determination that there was no "vessel" for the purposes of the Jones Act coverage. The trial judge improperly ruled on the question of LHWCA coverage: "Ketzel's complaint alleged, alternately, that her claim stated a cause of action under the [LHWCA]. However, Ketzel's job as a cocktail waitress is not included among the occupations intended by Congress to constitute Longshoremen.'" 867 F.Supp. 1260, 1262 n.2]

   IIs There LHWCA Jurisdiction for Floating Dockside Casinos?

   The OALJ has had several casino related cases. The fact patterns are very distinguishable. In two decisions, jurisdiction was not found, while in a third, jurisdiction was found. As will become apparent, the determination as to whether or not there is coverage will be significantly affected by: 1) what type of floating casino structure (vessel or non-vessel) is involved, and 2) what the worker's job is and who he/she works for.

   Both Arnest v. Mississippi Riverboat, Ltd., 29 BRBS 423 (ALJ) (1995) and Peters v. Roy Anderson Building Corp., 29 BRBS 437 (ALJ) (1995), administratively affirmed by the Board, BRB No. 95-2098(unpublished), involved Mississippi dockside casinos. Under the Mississippi Gaming Statute, gambling can only take place on a "cruise vessel" on navigable waters. Mississippi casinos situated along the gulf of Mexico are more or less permanently moored barges (attached to pilings) with casino structures built above the structures. See Peters, 29 BRBS at 441. While Mississippi may consider these to be "cruise vessels," under present maritime law, these structures can not be considered vessels. Id. at 441-442 (citing Pavone v. Mississippi Riverboat Amusement, Ltd., 52 F.3d 560 (5th Cir. 1995)).

   However, this does not automatically mean that there is no coverage under the LHWCA. Under the LHWCA, the term employee does not include "individuals employed by a recreational operation, restaurant, museum or retail outlet." §2(3)(B) and 20 CFR 701.301 (12)(i) and (iii). In Arnest, the administrative law judge held that, while the exclusion does not specifically list casinos, when one focuses on Congressional intent, one can readily conclude that this was the type of employment contemplated by Congress.

   While there is some room for argument against this result, such an argument would be on a less than solid foundation. Arnest rests on a very solid footing for several reasons:

(1) there were no dockside casinos in existence in 1984 when the LHWCA amendments were passed which excluded recreational operations;

(2) the 1984 amendments were specifically intended to exclude employees in non-maritime occupations from coverage. ["The legislative history explains that the excluded activities and occupations either lack a substantial nexus to maritime navigation and commerce or do not expose employees to the type of hazards normally associated with longshoring, shipbuilding and harbor work." Cong. Rec. §11622-23 September 20, 1984.];

(3) Since the 1984 amendments specifically excluded restaurants and retail outlets, it would be grossly unfair to find coverage for a blackjack floor supervisor/pit manager on a dockside floating casino while disallowing coverage to the wait person serving cocktails to the blackjack table or for that matter, to the restaurant/snack bar personnel, bartenders and clerks in gift shops of these attached dockside floating casinos.

   Thus, Arnest concludes that an employee of a casino working on a completed, attached, dockside casino is precluded from coverage by the 1984 Section 2(3)(B) amendments. In fact, the Congressional Record indicates that "the common thread running through the changes exempting certain activities...is probably the belief that these activities and occupations either lack a substantial nexus to maritime navigation and commerce or do not expose employees to the type of hazards normally associated with longshore, shipbuilding, and harbor work.."Cong. Rec. S11623 Sep. 20, 1984.

[ED. NOTE: On the other hand, using the Congressional Record cited in Arnest, one could argue that the purpose of the amendment excluding "recreational operations" was an attempt to exclude only purely water-related small enterprises such as water-paddle bicycles, etc. For example, one senator noted that the 1972 amendments had "pushed the Longshore Program beyond reasonable limits. Coverage is now extended to nearly a million workers who, during a workday may come near the water's edge. Even workers in the pleasure boating industry and in summer camps, marina, and maritime museum have been deemed to be covered by the Longshore Act." Cong. Rec. s11627 (Sep. 20, 1984).]

   However, as Peters illustrates, a person working on a dockside casino helping to build and/or repair the casino, would not fall under this exclusion if such person is not employed by the recreational operation itself. Section 2(3)(B). [Also, it should be noted that 2(3)(F) can be interpreted as meaning, if the recreational vessel (casino) is less than 65 feet long, any individual, no matter who he/she is employed by, is not covered under the LHWCA, provided of course, they are covered under a state workers' compensation law. Section 2(3)(F) is written in such a way that one can arguably distinguish between recreational vessel under 65 feet and recreational vessel 65 feet and over.]

   In Peters the claimant was employed as a laborer for the general contractor building the Grand Casino in Biloxi, Mississippi. Most of the labor she performed was in the casino structure being erected on the barges on the water although she sometimes worked on adjoining land projects. On the day of her injury she was assigned to a clean up crew and also assisted in setting up tables, booths and chairs in a restaurant area (involving bolting booths together and putting them in place.)

   In Peters, the ALJ determined that there was coverage. Peters reaches the correct result in the Fifth Circuit. The lead Fifth Circuit case on "status"/"maritime employment" is Randall v. Chevron, 13 F. 3d. 888 (5th Cir. 1994). In Randall, the worker was injured (died) on navigable waters in the course of his employment, he was engaged in maritime employment. Under Randall, coverage is extended "to workers injured while transiently or fortuitously upon actual navigable waters..." The place of injury (death) satisfied "status." Similarly, in Eolema v. Bracken Const. Co., 95-LHL-898(unreported)(June 18, 1996)), the judge relied on Director, OWCP v. Perini North River Associates, 450 U.S. 297, 324 (1983)(worker injured upon navigable waters in the course of employment is covered under §2(3)).

[ED. NOTE: Note, however, that this is the Fifth Circuits' position. Randall took Perini a step further by including as covered those who are transient and injured while functioning over water. The Eleventh Circuit (in a non-casino case) is contra. Brockington v. Certified Elec., 903 F.2d 1523-28 (11th Cir. 1990), cert. denied, 498 U.S. 1026 (1991). For a though discussion of coverage while injured over water see Topic 1.6.1 infra.]

   In Segrave v. M M C Mechanical Contractors, 29 BRBS 222 (ALJ) (1995) the claimant was a lead plumber working on the drainage system for a parking lot at the future cite of the Jubilee Casino in Mississippi at the time of the injury. He was in a ditch in the parking lot installing a pipe to a storm drain when injured, approximately 300 feet from the concrete pier. The administrative law judge held that this worker was clearly beyond the scope of Section 3(a) of the LHWCA, and was thus denied coverage under the LHWCA.

Floating Casino/Riverboat Gambling Jurisdiction Test

(1.) Who is the employer?

a. If the employer is the gambling operation, the majority view is that the LHWCA exclusion applies, and there is no LHWCA coverage. (Claimant must look to state compensation coverage or to the Jones Act if factual situation warrants)

(2.) If the employer is not the gambling enterprise:

a. Was Claimant injured over water during the course of regular employment, though only transiently over water?

• If yes, and in the Fifth Circuit, or Sixth Circuit there is LHWCA coverage.
• If yes, and in the Eleventh Circuit, there is no LHWCA coverage.
  
• In other circuits, the issue is undecided.

b. Was Claimant injured over water during course of regular employment?

• If yes, it is probably "maritime employment" and there is probably coverage.

c. Did the injury/accident occur over land ?

• If yes, regular LHWCA factors come into play and an analysis of situs and status must be performed.

Id. at 1010-11. Only when a worker's permanent job assignment has changed during the course of his employment is the worker entitled to have the substantiality of his vessel-related work evaluated for a period less than the total time employed by his current employer. Lormand v. Superior Oil Co., 845 F.2d 536, 540 (5th Cir. 1987), cert. denied, 484 U.S. 1031 (1988).

[ED. NOTE: As noted previously, admiralty jurisdiction and the coverage of the Jones Act depends only on a finding that the injured was "an employee of the vessel, engaged in the course of his employment" at the time of his injury. The fact that a Jones Act petitioner's injury occurred on land is not material. 46 U.S.C.A. § 740; Senko v. La Crosse Dredging Corp., 352 U.S. 370, 373 (1957); Swanson v. Marra Bros., Inc., 328 U.S. 1,4 (1946). See McDermott, Inc. v. Boudreaux, 679 F.2d 452, 462 (5th Cir. 1982); Guidry v. South Louisiana Contractors, 614 F.2d 447 (5th Cir. 1980) (plaintiff was held as a matter of law not to be a seaman employee of his shore based "borrowing" employer; whether he was a seaman employee of his "lending" employer vessel owner was held to be a question of fact); Porche v. Gulf Miss. Marine Corp., 390 F.Supp. 624, 630-31 (E.D. La. 1975). Therefore one must keep in mind that, simply because an employee is injured on land, the employee does not conveniently and automatically fall into a particular classification.]

893 F.2d 1037. In Yanez, the Ninth Circuit noted that the doctrine of judicial estoppel remains unsettled:

The majority of circuits recognizing the doctrine hold that it is inapplicable unless the inconsistent statement was actually adopted by the court in the earlier litigation.... The minority view, in contrast, holds that the doctrine applies even if the Litigant was unsuccessful in asserting the inconsistent position, if by his change of position he is playing "fast and loose" with the court.... In either case, the purpose of the doctrine is to protect the integrity of the judicial process.

989 F.2d at 326 (citations omitted.) (Bold facing added.)

   Despite its name, many cases have applied the doctrine of judicial estoppel where the prior statement was made in an administrative proceeding. Rissetto at 604 ("...[w]e are not aware of any case refusing to apply the doctrine because the prior proceeding was administrative rather than judicial."); see Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420, 1427 (7th Cir. 1993) ("Though called judicial estoppel, the doctrine has been applied, rightly in our view, to proceedings in which a party to an administrative proceeding obtains a favorable order that he seeks to repudiate in a subsequent judicial proceeding.") (collecting cases); Smith v. Montgomery Ward & Co., 388 F.2d 291, 292 (6th Cir. 1968) (position taken in workers' compensation proceedings estopped party in subsequent personal injury action); Simo v. Home Health & Hospice Care, 906 F. Supp. 714, 718 (D.N.H. 1995) (Social Security Administration disability proceeding): Zapata Gulf Marine Corp. v. Puerto Rico Maritime Shipping Auth., 731 F. Supp. 747, 750 (E.D. La. 1990) (Interstate Commerce Commission proceeding).

   The rule of judicial estoppel has been justified on the ground that "[t]he truth is no less important to an administrative body acting in a quasi-judicial capacity than it is to a court of law." Mullner v. Mars, Inc., 714 F.Supp. 351, 357 (N.D. Ill. 1989) (quoting Dept. of Transp. v. Coe, 112 Ill. App.3d 506, 510, 445 N.E.2d 506 (4th Dist. 1983).

   As noted, maritime law permits claimants to pursue both LHWCA and Jones Act remedies for the same injury, based on inconsistent claims as to the employee's status at the time of injury. Ryan v. McKie, 1 BRBS 221, 224-225 (1974). OALJ retains subject matter jurisdiction over the injured worker's longshore claim notwithstanding the pending of a parallel Jones Act claim. See for example, Stubblefield v. Dutra Const. Co., 26 BRBS 774 (ALJ) (1993); Johns v. Davison Sand & Gravel, 26 BRBS 583 (ALJ) (1992); Grossman v. Weeks Marine, Inc., 26 BRBS 530 (ALJ) (1992); Kellerher v. Smith Rice Co., 24 BRBS 72 (ALJ) (1990).

   As has been previously noted, the circuits are split as to whether or not an administrative determination as to jurisdiction bars a subsequent Jones Act claim. Sharp v. Johnson Bros. Corp., 973 F.2d 423 (5th Cir. 1992)(injured maritime worker loses his right to pursue an alternative Jones Act claim once the ALJ enters a formal order granting compensation benefits.); Figueroa v. Campbell Industries, 45 F.3d 311 (9th Cir. 1995) ("...some maritime workers may be Jones Act seamen who are injured while also performing a job specifically enumerated under the LHWCA, and, therefore are entitled to recovery under both statutes, although double recovery of any damage element is precluded."); Papai v. Harbor Tug and Barge Co., 67 F.3d 203 (9th Cir. 1995) rev'd on other grounds at ___ U.S. ___, 117 S.Ct. 1534 (1997)(while accepting the issue of whether or not the litigation of a LHWCA claim bars a subsequent Jones Act claim, the Supreme Court neither reached nor decided this issue.); Hagens v. United Fruit Co., 135 F.2d 842 (2d Cir. 1943)(Jones Act award can not validly be made if Deputy Commissioner had jurisdiction when awarding LHWCA coverage; Deputy Commissioner need not specifically state that plaintiff was not a member of the crew).

[ED. NOTE: Reflected by the split in the circuits, this issue will undoubtedly reach the Supreme Court again. Recall that the Supreme Court in Papai did not make a determination on such issue. Accordingly, some analysis of the three lead circuit court opinions (Sharp, Figueroa and Papai.) is appropriate. This will be done infra.]

   See also Biggs v. Norfolk Dredging Co., 360 F.2d 360 (4th Cir. 1966)(employee injured aboard his employer's ship may, on allegation that he is a seaman, sue his employer for damages under the Jones Act or general maritime law, even after deliberately obtaining compensation under the LHWCA on the allegation that he is not a seaman-- "Compensation statutes are not intended to deprive a seaman...of historic rights."); Vilanova v. United States, 851 F.2d 115 (1st Cir. 1988)(Wisdom, J., sitting by designation), cert. denied, 488 U.S. 1016 (1989)(administrative determination of coverage under LHWCA bars subsequent pursuit of FTCA claim--Congress did not intend to give injured workers two chances to maximize their compensation award).

   Several subsections of the LHWCA are pertinent to the discussion of whether or not an administrative determination as to jurisdiction bars a subsequent Jones Act claim. Specifically:

    13(d) Where recovery is denied to any person, in a suit brought at law or in admiralty to recover damages in respect of injury or death, on the ground that such person was an employee and that the defendant was an employee within the meaning of this Act and that such employer had secured compensation to such employee under this Act, the limitation of time prescribed in subdivision (a) shall begin to run only from the date of termination of such suit. 33 U.S.C. §913(d). (Emphasis added.)

    3(e) 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 Act pursuant to any other workers; compensation law or section 20 of the Act of March 4, 1915 (38 Stat. 1185, chapter 153; 46 U.S.C. 688) (relating to the recovery for injury to or death of seaman shall be credited against any liability imposed by this Act.) 33 U.S.C. §903(e). (Emphasis added.)

    5(a) The liability of an employer prescribed in section 4 shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, ... and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this Act, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under the Act, or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee. ... 33 U.S.C. § 905(a). (Emphasis added.)

   Reading Section 13(d) broadly, a claimant has the choice as to simultaneously filing an LHWCA claim and a Jones Act claim, or filing one or the other. A claimant could pursue his Jones Act claim to its conclusion prior to filing an LHWCA claim. Successful prosecution of the Jones Act claim would likely equate to the non-filing of the LHWCA claim. But see Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997) (en banc) (reversing prior longstanding circuit law, the court held: (1) seaman in Jones Act negligence cases are bound to a standard of ordinary prudence in the exercise of care for their own safety, not to a lesser duty of slight care; (2) Jones Act employers are not held to a higher standard of care than that required under ordinary negligence); Smith v. Tow Boat Serv. & Management, Inc., 66 F.3d 336 (9th Cir. 1995) (unpublished) (rejecting "slight care" standard); Karvelis v. Constellation Lines, S.A., 806 F.2d 49, 52-53 and n.2 (2nd Cir. 1986), cert. denied, 481 U.S. 1015, 107 S.Ct. 1891 (1987) (approving jury instruction informing that both employer and employee under Jones Act are charged with duty of reasonable care under the circumstances); Robert Force, "Allocation of Risk and Standard of Care Under the Jones Act: "Slight Negligence," "Slight Care"?," 25 J. Mar. L. & Comm. 1, 31 (1994).

   If the claimant lost in the Jones Act forum, filing an LHWCA claim would still remain a viable option.

   The Congressional Record indicates Congress' intent in enacting the Section 3(e) credit provision. In the pertinent part, the Congressional Record provides as follows:

    Sec. 3. Section 3(a) [of the enacting Senate bill] is amended to read as follows:

    (b) Section 3 is amended by adding the following new subsection:

    "(c) Notwithstanding any other provision of law, any amounts paid by any employer for the same injury, disability, or death for which benefits are claimed under this Act pursuant to any other workers' compensation law or section 20 of the Act of March 4, 1915 (38 Stat. 1185, chapter 153; 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."

Cong. Rec. S 8656 June 16, 1983

   The Conference Report stated:

    Importantly, as well, the substitute offsets longshore benefits for any other workers' compensation or Jones Act benefits concurrently received for the same injury. The conferees amended section 3(b) by substituting the words to an employee" for "by an employer" in the phrase "any amounts paid by an employer for the same injury, disability, or death ***." This change clarifies the conferees' intent that the scope of this section be read broadly.

    The offset would, therefore, apply not only to instances where the employee received State workers' compensation, but also where he received benefits under the Federal Employees' Compensation Act, and where the employee's non-longshore claim is against an employer other than the one against whom he has filed a longshore claim. Accordingly, the court's decision on this point in Melson v. United Brands Corporation, 594 F.2d 1068 (5th Cir. 1979) [This case is styled "United Brands Company v. Melson" by the Fifth Circuit.] is overruled.

    The offset applies, as well, to cases paid by the special fund for any purpose for which the fund is authorized to make payment under the act.

Cong. Rec. H 9733 September 18, 1984 (Erlenborn). (Bold facing added.)

   The Fifth Circuit in Melson v. United Brands Corporation acknowledged the existence of a "double recovery" loop hole. The Melson court's discussion helps clarify the context under which the 1984 Section 3 credit legislation was enacted. In Melson, the claimant had two jobs--one covered by the LHWCA and one covered by state workers compensation. The evidence indicated that while at his LHWCA employer claimant experienced shortness of breath and chest pains and was unable to climb out of the ship's hold. The evidence further indicated that claimant was totally and permanently disabled as of his last day of work at the LHWCA employer. Claimant left his day job and went to his night job (governed by state compensation legislation) where he proceeded to have a myocardial infarction. The claimant filed both LHWCA and state compensation claims against his respective employers. See Melson at 1070.

   The LHWCA employer argued that the claimant's settlement of his state compensation suit barred a LHWCA recovery under Section 33(g) of the LHWCA and that even if the claim was not barred, that claimant's federal award should be reduced by the amount of his state award. Melson at 1074.

   Agreeing with the Benefits Review Board, the Fifth Circuit held that Section 33(g)was limited to the situation in which the third party is potentially responsible to both the employee and the covered employer. "The instant case is simply not the case of a third party causing injury to an employee arising during the employee's employment for a covered employer...The compensation...is not a shared liability ... and [claimant's] compromise ... does not affect [the LHWCA employer's] duty to [claimant]." Melson at 1074.

   Important for discussion here, the Fifth Circuit acknowledged that in Melson, "This is a theoretical double recovery and for purposes of our analysis we must be content to call Melson's recovery a double recovery." Melson at 1075. The Fifth Circuit found that neither of the LHWCA's two provisions [§§ 33, 14(k)] that provide for a set-off were applicable here. Nor did the Fifth Circuit find any overriding policy to require that the LHWCA award should be reduced:

To allow United Brands a set-off is to give United Brands a windfall in the amount of Melson's state award. Until Congress is moved by this unusual situation, we think that the solution to this difficult problem is to allow the windfall of double recovery to reside with the injured worker rather than allow the set-off windfall to accrue to [the LHWCA employer].

Melson at 1075. (Bold facing added.)

[ED. NOTE: Obviously Congress was moved and thus created what has become subsection 3(e). Apparently, while taking precautions to make sure a Melson situation did not reoccur, Congress realized the second employer could just as easily have been a Jones Act employer. Furthermore, commentators have previously noted the possibility of an LHWCA action against the employer and a Jones Act action against a shipowner. See, Gilmore & Black, "The Law of Admiralty," § 6-57 p. 455 (1975 ed.).]

   As to state compensation election of remedies cases involving one employer, see TOPIC 85. In Industrial Commission v. McCartin, 330 U.S. 622 (1947) and Thomas v. Washington Gas Light Co., 448 U.S. 261, 12 BRBS 828 (1980), the Supreme Court left no doubt that in the absence of some explicit language in a state's statute prohibiting subsequent recoveries, the claimant may seek benefits under the LHWCA subject to credit for benefits paid under the state statute.

    However, in the case of a longshore claim versus Jones Act recovery suit involving one employer, it may be argue that the member of the crew/seaman exclusivity clauses in both LHWCA and Jones Act statutes prevent subsequent or supplementary recovery despite the approach in Figueroa v. Campbell Industries, 45 F.3d 311 (9th Cir. 1995), by the Ninth Circuit.

[ED. NOTE: One must keep in mind that the relationship between the LHWCA and the Jones Act is not analogous to that between the LHWCA and various state compensation acts. The purpose of the LHWCA is to "supplement the state acts." See Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715 (1980). The "supplemental award gives full effect to the facts determined by the first award." Thomas v. Washington Gas Light Co. As to the Jones Act, it and the LHWCA are mutually exclusive. It would be impossible, therefore, for either the Jones Act or LHWCA to supplement or give full effect to the facts determined by the other forum and there to be dual, supplemental recovery.]

   In Figueroa, the Ninth Circuit found that the claimant, "an injured seaman, arguably acting as a person enumerated under the LHWCA at the time of his injury, is entitled to recover for his pain and suffering under the Jones Act, and additionally can recover for unpaid wages and medical expenses either by recovering those damage elements under the Jones Act although not both."

[ED. NOTE: The READER IS CAUTIONED that the "buffet of benefits" approach developed by the Ninth Circuit in Figueroa fails to explain how pain and suffering elements of recovery under the Jones Act can be due from the same employer who may owe workers compensation benefits under the LHWCA. It is submitted that the Ninth Circuit has missed the jurisdictional boat with its interpretation of Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 112 S.Ct. 486 (1991). Simply because a worker's occupation is one of those enumerated in the LHWCA does not mean he is both a LHWCA claimant as well as a Jones Act seaman. As the Fifth Circuit so aptly stated in 1967, "It is thus apparent that the [LHWCA]'s exclusive liability provision effectively abrogates any independent tort liability of the employer to its employees, thereby eliminating any basis which may have existed for indemnification on a tort theory. ODECO v. Berry Brothers, 377 F.2d 511 (5th Cir. 1967). The Supreme Court in Gizoni simply found that even though a workers' occupation was enumerated in the LHWCA, the worker would not be precluded from entitlement to Jones Act benefits if he/she could successfully pass the seaman test which entails a much higher degree of connexity with the marine environment than is required under the parameters of the LHWCA.]

   In Figueroa, the employer had argued that Gizoni's language supported preclusion in a case such as Figueroa. Particularly relied on was the Gizoni Court's conclusion that "[i]t is by now universally accepted that an employer who receives voluntary payments under the LHWCA without a formal award is not barred from subsequently seeking relief under the Jones Act." The employer in Figueroa argued that the payments to the worker constituted "formal awards." Figueroa at 315.

   However, the Ninth Circuit noted that in Gizoni, the issue of coverage had never been litigated and concluded that without a jurisdictional determination a worker/claimant could pursue as well as receive, the mutually exclusive remedies of both acts in a situation such as Figueroa.

   Since the Ninth Circuit in Figueroa relied substantially on Gizoni, some scrutiny of the Gizoni case is necessary at this point. The Ninth Circuit, in its version of Gizoni, cited to Petersen v. Chesapeake and Ohio Railway Co., 784 F.2d 732 (6th Cir. 1986) as addressing the question as to whether the LHWCA provides the sole remedy for a ship repairman injured as a result of his employer's negligence. The Ninth Circuit stated:

We join the Sixth Circuit in rejecting the notion that any person whose work involves ship repair is necessarily restricted to coverage under the LHWCA. Whether an employee is covered by the LHWCA or the Jones Act should be determined by looking to the nature of the claimant's work and the intent of Congress in enacting these compensation schemes, not by looking to the claimant's job title. Moreover, by its terms, the LHWCA does not cover a master or member of a crew of any vessel." ... Thus [the worker] is covered by the LHWCA only if he is not a seaman.

909 F.2d 385 at 389.

[ED. NOTE: While the statements of the Ninth Circuit noted above are generally correct, the Ninth Circuit was incorrect in applying Petersen's general substantive law to the specific jurisdictional issue at hand in Gizoni. Petersen only involved a Jones Act filing; there was never an LHWCA claim filed in Petersen. (The employer in Petersen had argued that the worker was not a seaman, but rather, was covered by the LHWCA.) Despite the misapplication of Petersen, in Gizoni, the Ninth Circuit reached the proper conclusion for Gizoni's particular factual scenario. The Supreme Court affirmed the judgment of the Ninth Circuit in Gizoni. (Coverage under the LHWCA or the Jones Act does not depend on a claimant's job title, but rather on the nature of the claimant's work; an employer whose work involved ship repair is not necessarily restricted to a remedy under the LHWCA if he qualifies as a seaman within the meaning of the Jones Act.)]

   It must be remembered that, in Gizoni, the claimant had filed an LHWCA claim and was receiving voluntary benefits, there not having been a formal adjudication of coverage under the LHWCA. In Gizoni, the Supreme Court stated:

It is by now "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. ... This is so, quite obviously, because the question of coverage has never actually been litigated. Moreover, the LHWCA clearly does not comprehend such a preclusive effect, as it specifically provides that any amounts paid to an employee for the same injury, disability or death pursuant to the Jones Act shall be credited against any liability imposed by the LHWCA.

502 U.S. at 91; 112 S.Ct. at 494.

   Thus, while the Ninth Circuit reached the proper result in Gizoni, its reliance on Petersen and its analysis in Gizoni should not properly be extended to the factual pattern of Figueroa. Gizoni is distinguishable from Figueroa. Figueroa involved an OWCP approved settlement of an LHWCA claim, whereas Gizoni involved a voluntary payment of LHWCA benefits.

[ED. NOTE: Query: Nevertheless, could Figueroa be the "proper" result since there was not an adjudication of the jurisdictional issue? See Nielsen, "The Jones Act and the LHWCA: What's New in the Galaxy of Crossover Claims," 1995 Longshore Claims Assoc. Seminar. Since adjudication, and fact finding for that matter, begin at the OALJ level, are all OWCP level settlements potentially at risk of not being considered "final" for Jones Act purposes ? Perhaps Figueroa can best be explained as involving an Office of Workers Compensation Programs' settlement of an LHWCA claim and not a formal adjudicatory level settlement order by an ALJ wherein a jurisdictional/factual determination could more formally be made.

   In the wake of Figueroa one must ask whether or not an OWCP settlement compensation order (as opposed to a finding of fact by an ALJ) is sufficient to entitle one to jurisdictional estoppel. See, for example, Anders v. Ormet Corporation, 874 F.Supp. 738 (M.D. La. 1994) (ALJ held a formal hearing with one of the express issues being whether or not the claimant qualified as a seaman at the time of his injury. [Subsequently the U.S. District Court granted the employer's motion for summary judgment in a Jones Act case; the worker had been injured on his employer's towboat.]); Weld v. Elevating Boats, 516 F. Supp. 1245 (E.D. La. 1981) (Summary motion granted; plaintiff is collaterally estopped from claiming seaman status in light of the decision to the contrary by the ALJ); the pre-1972 amendment case (and therefore, pre-OALJ) of Young & Company v. Shea, 397 F.2d 185 (5th Cir. 1968) (collateral estoppel inapplicable because there was substantial variance in standard and proof required to establish facts before commissioner in this longshore proceeding and jury in court action--jury had found no accident had occurred.).]

   The Ninth Circuit's proceedings in Papai also merit some scrutiny. First, the procedural history of Papai should be noted:

1) Jones Act suit filed.

2) Summary Judgment of Jones Act granted on behalf of Employer on grounds Claimant was not a seaman.

3) LHWCA claim filed, hearing held and Decision and Order issued awarding compensation. (This Decision and Order was not appealed and thus became final.)

4) Plaintiff/Claimant in Jones Act appealed Summary Judgment.

5) Ninth Circuit holds error to grant Summary Judgment on Jones Act claim and that Jones Act claim was not rendered moot by reason of Plaintiff' s receipt of compensation benefits under LHWCA.

   Next, one must look to the interpretation of the Supreme Court's Gizoni decision by the Ninth Circuit in Papai. The Ninth Circuit acknowledged the basis of the Gizoni Court's holding was that the LHWCA claim was never actually litigated.

   However, the Ninth Circuit went on to quote additional Gizoni Court language which it found applicable to Papai:

Moreover, the LHWCA clearly does not comprehend such a preclusive effect, as it specifically provides that any amounts paid to an employee for the same injury, disability, or death pursuant to the Jones Act shall be credited against any liability imposed by the LHWCA.

67 F.3d at 207 quoting 112 S.Ct. at 494. By "preclusive effect," the Gizoni Court is clearly referring to the suggestion by Southwest Marine that an employee's receipt of benefits under the LHWCA should preclude subsequent litigation under the Jones Act. As previously noted, the court answered that argument by noting that 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.

   Finally in Papai, the Ninth Circuit noted that the Gizoni Court, in a footnote addressing an equitable estoppel argument made by an amicus brief, stated that " [w]here full compensation credit removes the threat of double recovery, the critical element of detrimental reliance does not appear. Argument by amicus would force injured maritime workers to an election of remedies we do not believe Congress to have intended.'" 67 F.3d at 207 quoting 112 S.Ct. at 494 n.5.

   However, these statements by the Court must be read in context. While the worker in Gizoni filed a preliminary claim under the LHWCA and received voluntary benefits, it was actually the Jones Act claim which was actively pursued. By pursuing the Jones Act claim to its conclusion, the claimant does eventually make a de facto election of remedies. The Jones Act tort remedy in all probability will be substantially greater than the claimant would have recovered under the LHWCA. But see Gautreaux v. Scurloack Marine, Inc., 107 F.3d 331 (5th Cir. 1997) and other cited cases, previously noted in this subsection, noting the standard of care to which seaman are held.

[ED. NOTE: In any case, it must be realized that the claimant can always control the course of the two prong litigation by where and when he/she actually files claims/suits. Additionally, the regulations provide for the withdrawal of an LHWCA claim for a "proper purpose"--a term not yet addressed by the circuits. For additional discussion on withdrawal of claims see TOPIC 8.11.]

   Thus, one should proceed cautiously before applying the Ninth Circuit's present position beyond the borders of that circuit. In fact, even within the Ninth Circuit one should proceed cautiously. The Ninth Circuit has not been consistent in applying its philosophy. See Risetto v. Plumbers & Steamfitters, Local 343, 94 F.3d 597 (9th Cir. 1996). In this employment law case, based on judicial estoppel, the Ninth Circuit affirmed the dismissal of discrimination claims explaining that the doctrine of judicial estoppel is intended to prevent a litigant from playing fast and loose with the courts. The Ninth Circuit determined that judicial estoppel applies to a prior inconsistent position taken by a litigant in an administrative proceeding, even though that position was not actually previously litigated by the parties. See Axelrod, "Res Judicata and Collateral Estoppel: A Sword And A Shield," Longshore Newsletter, Vol. XIV, Issue 5 (Aug. 1996). While acknowledging the doctrine's application to administrative proceedings and to workers compensation proceedings, the Ninth Circuit has not explained why it has not applied it in a LHWCA/Jones Act context.

   In Sharp v. Johnson Bros. Corp., 973 F.2d 423 (5th Cir. 1992), the Fifth Circuit noted that the district court had reasoned that the entry of an order by the ALJ constituted a finding that the injuries were compensable under the LHWCA and that by seeking, and acquiescing to the finding, collaterally estopped the claimant from contesting LHWCA coverage.

   The claimant in Sharp had unsuccessfully argued as follows:

1) Because there is a "zone of uncertainty" between the Jones Act and the LHWCA, an injured worker should be able to pursue both remedies simultaneously.

2) Several commentators have argued that a worker should be able to accept benefits without losing his Jones Act claim, since the purpose of the compensation and recovery schemes is to protect the worker during his time of need.

3) There is no danger of double recovery, as one recovery is credited against the other.

4) Collateral estoppel should not apply because the issue of whether the worker was a seaman or a harbor worker was not litigated--only a consent judgment was entered in his case with the ALJ reviewing the agreement only for fairness, not jurisdiction.

   In Sharp the Fifth Circuit specifically noted the holding of the Supreme Court in Gizoni and found that Sharp was distinguishable since Gizoni involved voluntary payments. The Fifth Circuit, in reference to Sharp stated:

    It is beyond cavil that merely accepting voluntary payments under the LHWCA without a formal award does not bar a worker from filing a Jones Act suit. [Cite omitted.] Here, though, Sharp obtained a settlement agreement and a compensation order issued by the ALJ. We have treated such an agreement and order as a "formal award." See Newkirk v. Keys Offshore, 782 F.2d 499, 501-02 (5th Cir. 1986); see also Rodriguez v. Compass Shipping Co., 617 F.2d 955, 958-59 (2d Cir. 1980), aff'd 451 U.S. 596, 101 S.Ct. 1945, (1981).

Sharp at 426.

   The Fifth Circuit went on to state:

    It is true that LHWCA coverage was never litigated in an adversarial proceeding. But Sharp availed himself of the statutory machinery to bargain for an award, and he had the full opportunity to argue for (or against) coverage. He filed a claim for LHWCA benefits, invoking the jurisdiction of the DOL. Pursuant to 33 U.S.C. § 908(i)(1), the ALJ considered Sharp's testimony, as well as the parties' stipulations and their settlement, before issuing its findings of fact and order extinguishing [Employer's] liability for LHWCA benefits.

    Having obtained the order of the ALJ and the aegis of the DOL to ratify and enforce his settlement, Sharp ensured that his rights were more secure under the agreement than they would have been if the settlement were considered merely a contract between the parties. It follows that where the ALJ issues a compensation order ratifying a settlement agreement, a "formal award" should be deemed to have been made under Gizoni, and the injured party no longer may bring a Jones Act suit for the same injuries.

    Our holding is consistent with the purpose of the LHWCA, as outlined in Fontenot v. AWI, Inc., 923 F.2d 1127 (5th Cir. 1991). The LHWCA was not designed to create a mere safety net, guaranteeing workers a minimum award as they seek greater rewards in court. Rather, it has a benefit to employers, too, giving them limited and predictable liability in exchange for their giving up their ability to defend tort actions. [citations omitted.] Permitting a Jones Act proceeding after a formal compensation award here would defeat the purpose of the LHWCA, as well as work unfairness, because, as here, employers often have different insurance carriers for workers' compensation claims and tort claims, so the compensation insurer, by guaranteeing a minimum award, necessarily would reduce the ability of the tort insurer to effect a settlement.

    Nor is our holding inconsistent with Gizoni. In that case the Court held that an injured maritime worker did not have to choose between pursuing his potential remedies under the LHWCA and the Jones Act. There is a difference, thought, between saying a plaintiff may pursue only one remedy and declaring that he may receive only one award.

    We agree that Congress did not intend that a worker forfeit his right to pursue one remedy when he pursues another. Otherwise, a plaintiff might fail to receive a LHWCA award, because the ALJ considered him a seaman, but be barred from Jones Act relief because he pursued what he believed were his remedies under the LHWCA.

    Nor should an employer be able to avoid Jones Act liability by voluntarily paying LHWCA benefits that a needy worker can not but accept while awaiting trial [citations omitted.] But 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." [citation omitted.] (Bold facing added.)

Sharp at 426-27. (Bold facing added.)

   The Fifth Circuit has acknowledged that, while there may be occasions that a fact finder might be able to draw reasonable inferences to justify coverage under either the Jones Act or the LHWCA [See, for example, Abshire v. Seacoast Products, Inc., 668 F.2d 832, 835 (5th Cir. 1982)], "[e]ven the ambiguous employee must elect a remedy." McDermott, Inc. v. Boudreaux, 679 F.2d 452, 459 n.7 (5th Cir. 1982). The establishment of an employer's liability under the LHWCA "effectively abrogates any independent tort liability of the employer to its employees...." Ocean Drilling & Exploration Co. v. Berry Brothers Oilfield Services Inc., 377 F.2d 511, 514 (5th Cir. 1967), cert. denied, 389 U.S. 849, 88 S.Ct. 102 (1967).

   Gilmore and Black, in their treatise on Admiralty Law, acknowledge that "the plaintiff who attempts to bring a Jones Act action following a compensation award in a contested proceeding may find himself barred in a court which takes res judicata and collateral estoppel seriously." "The Law of Admiralty," p.435 (1975 ed.). However, these commentators suggest, "[O]n grounds of policy the argument can be plausibly advanced that the injured worker should be entitled to try for his Jones Act recovery no matter how properly his status as a non-seaman may have been adjudicated in a contested compensation proceeding." Id.

[ED. NOTE: While Gilmore and Black go on to argue, for humanitarian reasons, that the worker should be able to pursue both remedies ("The provision of compensation during this period would serve the function of the traditional maritime remedy of maintenance and cure...."), the commentators forget that there is a vast difference between the compensation/tort distinction on the one hand, and the maintenance and cure/damages recovery on the other. While maintenance and cure are "supplemental" recoveries rooted in sea-based maritime law, "compensation," a land-based recovery, has never been treated as supplemental in nature. In fact, compensation has always been viewed as an alternative recovery, not a bonus remedy.]

   Professor Larson, in his The Law of Workmen's Compensation treatise, has indicated that in his opinion an administrative approval of benefits should only be res judicata where the eligibility issue is actually litigated: "[N]o one has a right to demand that the same issue between the same parties be litigated and decided twice. This certainly does not mean that a person cannot demand that the issue be genuinely litigated and decided once." 3 Larson, Workmen's Compensation § 90.51.

   In this regard, Kalesnick v. Seacoast Ocean Services, Inc., 866 F. Supp. 36 (D. Maine 1994) merits discussion. Kalesnick is a Maine/Jones Act jurisdictional estoppel case. In Kalesnick, there was a settlement of a Maine worker's compensation claim specifically approved "on the basis of Maine law" as a final adjudication of the claim. Maine's workers' compensation law specifically excludes those "engaged in maritime employment or in interstate or foreign commerce who are within the exclusive jurisdiction of admiralty law or the laws of the United States." 39 A M.R.S.A. § 102(11)(A)(1) (mirroring the definition of exclusive federal jurisdiction in Southern Pac. Co. v. Jensen, 244 U.S. 205, 218 (1917).

   In Kalesnick, the U.S. District Court dismissed the Jones Act claim stating that an approved agreement for compensation has the force of a final adjudication to the extent of the facts agreed upon and the conditions considered by the parties as a basis for the compensation to be paid. " Applying this principle, we have held that an approved agreement for compensation conclusively establishes the existence of an initial compensable injury." 866 F.2d Supp. at 38. Kalesnick specifically found that Maine's law of res judicata includes matters that "might have been litigated."

   The district court noted that Kalesnick met the Maine standards/criteria for the application of principles of res judicata: (1) the parties were identical; (2) the state workers' compensation board approval was a final adjudication under the state legal system; and (3) the claimant's status as a non-maritime employee could have been litigated (but was nevertheless implicit) in the earlier determination approving benefits. Importantly, the district court also noted that no approval of benefits was possible unless the parties and board thought that the person was eligible and board approval is implicitly a conclusive determination that the claimant did not come within the maritime exclusion.

[ED. NOTE: Query: How can one determine that there is jurisdiction to approve a settlement without also finding that there is jurisdiction under the LHWCA? In this regard, see TOPIC 1.2 on Subject Matter Jurisdiction.]

   The Board first addressed the broader issue of pursuing both an LHWCA claim and a Jones Act suit in Ryan v. McKie, 1 BRBS 221 (1974) ("The law permits the claimant to pursue both [an LHWCA claim and a Jones Act suit] of these remedies for the same injury, based on inconsistent claims as to his status at the time of the injury.")

   However, as support for its conclusion, the Board stated that: "A seaman employee who is injured aboard his employer's vessel or on a vessel owned by a third party may recover compensation from his employer and still sue his employer and/or the third party for negligence or unseaworthiness." For this the Board cites several cases including Reed v. S.S. Yaka, 373 U.S. 410, 83 S.Ct. 1349 (1963); Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872 (1946). The Board fails to note that it was Sieracki which brought about the 1972 amendments to the LHWCA which took away a non-seaman maritime worker's right of recovery for unseaworthiness. But see, Blancq v. Hapag-Lloyd, 1997 WL 732421 (E.D.La.); Laakso v. Mitsui & Co. U.S.A., Inc., 1989 WL 149186 at *8-*9 (Dec. 6, 1989 E.D.La)(unpublished but still has precedential value under 5th Circuit Local Rules); Clark v. Solomon Navigation, Ltd., 631 F.Supp. 1275 (S.D.N.Y. 1986). One must keep in mind that in the context of the issue at hand, an LHWCA claim (compensation action) and a Jones Act suit (negligence action) involve the same parties and the same cause of action.

   In Ryan, the Board did specifically state that "[i]t is clear that the [ALJ] had jurisdiction of this claim and was entitled to make a determination of whether the claimant was covered by the [LHWCA], notwithstanding the action pending in U.S. District Court. 1 BRBS at 225. (Emphasis added.).

   In Green v. C.J. Langenfelder & Sons, Inc., 30 BRBS 77 (1996), a Jones Act/LHWCA case, the Board failed to mention the issue of judicial estoppel. In Green, the claimant was injured while fixing a conveyor belt on an oyster harvesting dredge. He filed both LHWCA and Jones Act claims but settled the Jones Act claim. The ALJ granted summary judgment in favor of the employer on the issue of status. The employer had argued that the claimant was a member of the crew and, therefore, excluded under subsection 2(3)(G) of the LHWCA. The Board remanded for further factual development before making a legal conclusion on status.

   The employer had alternatively argued that even if the worker did not meet the Jones Act seaman test, claimant would nevertheless be excluded from LHWCA coverage because of the aquaculture exclusion. See Section 2(3)(E) of the LHWCA. The ALJ had limited his decision to the status/Jones Act issue. On remand, the Board instructed the ALJ that, in the event the seaman exclusion was found inapplicable after following the Board's guidelines as to making a determination of Jones Act coverage, the aquaculture issue was to be considered.

[ED. NOTE: Why didn't the Board address the fact that there had been a Jones Act settlement? In this regard, at the least, the Board should have remanded to the ALJ to determine if the Jones Act settlement had followed a formal procedure similar to that done in an LHWCA Section 8(i) claim Why didn't the Board address the fact that there had been a Jones Act settlement? In this regard, at the least, the Board should have remanded to the ALJ to determine if the Jones Act settlement had followed a formal procedure similar to that done in an LHWCA Section 8(i) claim.]

   Attempts by employers to out-maneuver claimants as to choice of forum have thus far been unsuccessful. In General Construction Co., Inc. v. Embry, 1993 W.L. 137413 (N.D. Cal. 1993) an employer attempted to get an "advisory opinion" by filing a motion for a declaratory judgment in federal district court where the worker's widow had filed an LHWCA claim, but had not yet filed a Jones Act claim. The district court reviewed this request for a declaratory judgment as: (1) an attempt at an "end run" around the claimant's choice of hearing; and (2) as fostering piecemeal litigation.

[ED. NOTE: There is no overriding reason why the doctrine of judicial estoppel should not apply to LHWCA/Jones Act situations at least at the ALJ level and where jurisdiction has been specifically determined. Both the parties, as well as the causes of action, are identical. While at first glance, one may argue that the evidentiary standards and levels of proof may appear to be at variance, see Young & Company v. Shea, 397 F.2d 185 (5th Cir. 1968) (collateral estoppel inapplicable because there was substantial variance in standard and proof required to establish facts before commissioner in this longshore proceeding and jury in court action--jury had found no accident had occurred.), one should keep in mind that the choice of forum (as well as the order of forums) remains in control of the claimant.

33 U.S.C. § 903(a) (1927). (This is the origin of the concept of "situs" and should be thought of as a geographical concept.)

   Even this first version of the LHWCA stated that an "employee" could not be a member of a crew. It defined an "employer" as "an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States...."

   The "maritime employment" phrase was rarely referred to since the worker injured while working on the water was assumed to be the requisite "maritime" worker. The necessary maritime connection was established even if the particular employment on the water was the kind of job typically performed on land. See Pennsylvania R.R. Co. v. O'Rourke, 344 U.S. 334 (1953); Nogueira v. New York, N.H. & H. R. Co., 281 U.S. 128 (1930).

   A predominantly non-maritime worker was covered as a maritime employee if he received his injury while temporarily assigned to work on the water. Parker v. Motor Boat Sales, 314 U.S. 244 (1941) (janitor's death covered because he drowned when riding in a boat, "a clearly maritime activity," during the course of employment).

   This approach led to the view that "maritime employment" includes even in a non-technical, general sense, employment upon the navigable waters. Thus, situs equaled instant status. In the pre-1972 jurisprudence, an injury in maritime employment included all work injuries of amphibious workers over navigable water. Pier injuries, however, were not covered in this pre-1972 period. Nacirema Operating Co. v. Johnson, 396 U.S. 212 (1969). Thus, a sharp jurisdictional line could still be drawn.

33 U.S.C. § 903(a) (1972).

   Although this extension of coverage shoreward solved some jurisdictional problems, it created others. Longshore workers, shipbuilders, and other amphibious workers who had walked in and out of coverage during their working day under the old act now were covered. Caputo, 432 U.S. 249. Workers with a transitory or incidental employment presence in the newly covered area, however, were not included. The definition of "employee" was amended to include only:

person[s] engaged in maritime employment, including any longshoremen or other person engaged in longshoring operations, and any harbor worker including a ship repairman, shipbuilder, and shipbreaker ...

33 U.S.C. § 902(3).

   The intent of the amendments was to add additional workers to coverage, not to exclude from coverage any employee who is injured in employment on actual navigable waters and who therefore would have been covered under the original act. The categories of occupations and activities expressly listed in Section 2(3) are not an exhaustive definition of the term "maritime employment." Trotti & Thompson v. Crawford, 631 F.2d 1214 (5th Cir. 1980).

   However, a string of Supreme Court decisions addressing Section 2(3) has left it "clearly decided that, aside from the specified occupations, land-based activity occurring within the Section 3 situs will be deemed maritime only if it is an integral or essential part of loading or unloading a vessel." Munguia v. Chevron U.S.A., Inc., 999 F.2d 808, 811 (5th Cir. 1993) (citing Chesapeake & Ohio R.R. v. Schwalb, 493 U.S. 40, 45 (1989)). See also P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 80 (1979); H.R.Rep. No. 92-1441, p.11 (1972); S.Rep. No. 92-1125, p.13 (1972), U.S.Code Cong. & Admin.News 1972, p. 4708.

   The Supreme Court, in Herb's Welding, stated:

Congress did not seek to cover all those who breathe salt air. Its purpose was to cover those workers on the situs who are involved in the essential elements of loading and unloading; it is `clear that persons who are on the situs but not engaged in the overall process of loading or unloading vessels are not covered.'

470 U.S. at 423 (quoting Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 267 (1977)).

1.6 SITUS

1.6.1 "Over water"

   Although the intent of the amendments was to add to coverage rather than to exclude workers already covered, the jurisprudence has moved towards a stricter scrutiny of just what "maritime" employment is; i.e., is it simply work done over navigable water, Bienvenu v. Texaco, Inc., 124 F.3d 692 (5th Cir. 1997)("We again repair to our troubled efforts to define maritime employment"); Randall v. Chevron U.S.A., Inc., 13 F.3d 568 (1994); Director, OWCP v. Perini North River Assoc.(Churchill), 459 U.S. 297, 103 S.Ct. 634 (1983); Interlake Steamship Co. v. Nielson, 338 F.2d 879 (6th Cir. 1964); or is it more likely any work performed on the water that has a realistically significant relationship to navigation or commerce? Fusco v. Perini N. River Assocs., 622 F.2d 1111 (2d Cir. 1980), cert. denied, 449 U.S. 1131 (1981); Weyerhaeuser Co. v. Gilmore, 528 F.2d 957 (9th Cir. 1975), rev'g 1 BRBS 180 (1974), cert. denied, 429 U.S. 868 (1976).

[ED. NOTE: To the extent that Wayerhaeuser and Fusco held there must be a realistically significant relationship to navigation or commerce when the worker is working over water, one can argue that they have been indirectly overruled by Director, OWCP v. Perini North River Association, 459 U.S. 297, 103 S.Ct. 634 (1983). There need only be a "realistically significant relationship" to navigation or commerce when the worker is over land.]

   Ironically, the restrictive views of the Ninth and Second Circuits were founded on the Supreme Court's decision in P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 11 BRBS 320 (1979), a case which dealt with land-based employees who, by definition, were not covered under the pre-1972 LHWCA. Ford's conclusion, taken out of context, was that "maritime employment" is an occupational concept based on the nature of a worker's activities, precluding any application of the 1972 LHWCA to an employee whose activities do not bear a significant relationship to navigation or commerce on navigable water.

   The Board, reversed by Weyerhaeuser, overruled previous Board decisions that held that the 1972 Amendments did not reduce traditional coverage of the LHWCA. See Sedmak v. Perini N. River Assocs., 9 BRBS 378 (1978), aff'd sub nom. Fusco v. Perini N. River Assoc., 622 F.2d 1111, 12 BRBS 328 (2d Cir. 1980), cert. denied, 449 U.S. 1131 (1981). These previous decisions had held that if one injured over navigable water would have been covered before the 1972 Amendments, one should continue to be covered after the 1972 Amendments.

   Eventually Weyerhaeuser gained widespread acceptance, except in the Fifth Circuit, Boudreaux v. American Workover, Inc., 680 F.2d 1034 (5th Cir. Unit A 1982), cert. denied, 459 U.S. 1170 (1983), and the courts reverted back to almost a case-by-case application of a status test.

   The Supreme Court "clarified" the issue in Director, OWCP v. Perini North River Associates, 459 U.S. 297 (1983). The Court stated:

In holding that we can find no congressional intent to affect adversely the pre-1972 coverage afforded to workers injured upon the actual navigable waters in the course of their employment, we emphasize that we in no way hold that Congress meant for such employees to receive LHWCA coverage merely by meeting the situs test, and without any regard to the maritime employment language. We hold only that when a worker is injured on the actual navigable waters in the course of his employment on those waters, he satisfies the status requirement in § 2(3), and is covered under the LHWCA, providing of course, that he is the employee of a statutory "employer" and is not excluded by any other provision of the Act. We consider these employees to be engaged in maritime employment' not simply because they are injured in a historical maritime locale, but because they are required to perform their employment duties upon navigable waters.

Id. at 324.

   Perini dealt with a construction worker injured while performing his job on the deck of a cargo barge being used in the construction of a sewage treatment plant extending over the Hudson River. Writing for the majority, Justice O'Connor held that a maritime construction worker working on navigable waters and injured while on navigable waters would have been covered under the 1927 LHWCA and is covered today. In his concurrence, Justice Rehnquist noted that the claimant was engaged in unloading materials from a supply barge to a cargo barge, just as a longshoreman does, and therefore was in maritime employment.

   Perini held that the 1972 Amendment did not disclose any Congressional intent to withdraw coverage from those workers injured on navigable waters in the course of their employment who would have been covered by the LHWCA before 1972. Perini states that before 1972, there was little litigation concerning whether an employer was "in maritime employment" for purposes of being the employee of a statutory employer.

   The Court in Perini went on to state:

Indeed, the constant interpretation given to the LHWCA before 1972 by the Director, the Deputy Commissioner, the courts, and the commentators was that (except for those workers specifically exempted in the statute), any worker injured upon navigable waters in the course of employment was "covered...without any inquiry into what he was doing (or supposed to be doing) at the time of the injury.

459 U.S. at 311 and quoting Gilmore and Black, at 429-430

   Importantly, the Supreme Court offered no opinion on whether coverage extends to workers injured while transiently or fortuitously on actual navigable waters. Id. at 324 n.34. Significantly, the Court noted that its holding only extends to those persons "traditionally covered" before the 1972 amendments and that the Court expresses no opinion at the time of the Perini ruling as to whether coverage extends to workers injured while transiently or fortuitously upon actual navigable waters. 459 U.S. at 324 n. 34. The Court stated that its holding was a recognition that a worker's performance of his duties upon actual navigable waters is necessarily a very important factor in determining whether he is engaged in "maritime employment" Id.

   It should be noted that while the history is sparse, there are several Supreme Court cases that predated Perini and also provide a background lending support to the Perini approach. Calbeck v. Travelers Ins. Co., 370 U.S. 114, 82 S.Ct. 1196 )(1962)(workers injured while working on launched and floating yet uncompleted drilling barges were covered under the LHWCA); Parker v. Motor Boat Sales, Inc., 314 U.S. 244, 62 S.Ct. 221 (1941)(janitor who drowned while riding in employer's motorboat keeping watch for obstacles was covered; unanimous Court held covered without any further inquiry whether the injured worker's employment had a direct relation to navigation or commerce); Davis v. Dept. of Labor, 317 U.S. 249, 63 S.Ct. 225 (1942)( in dicta the Court indicated that a worker engaged in dismantling a bridge across a navigable river who fell from a barge and drowned could be covered under the LHWCA).

   In Calbeck, the Court specifically recounted the history of the pre-1972 LHWCA and stated that, "[I]t appears that the Longshoreman's Act was designed to ensure that a compensation remedy existed for all injuries sustained by employees on navigable waters..." 370 U.S. at 124(emphasis added). In fact, the Calbeck Court notes that an original version of the proposed Longshore Act contained language which excluded "...employment of local concern and of no direct relation to navigation and commerce." 370 at 122. Ultimately the phrase was taken out because the Congressional committee thought the clause was vague and would be subject to continual litigation. 370 U.S. at 123. In Perini, the Court noted that in Calbeck the Court had made "it clear to employers that if they required their employees to work upon actual navigable waters, those employees would be covered by the LHWCA." 459 U.S. 308, n.18.

   In Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348 (1977), the Court stated, "Previously [to the 1972 amendments taking the LHWCA landward] so long as a work-related injury occurred on navigable waters and the injured worker was not a member of a narrowly defined class [i.e. master or member of a crew], the worker would be eligible for federal compensation provided that his or her employer had at least one employee engaged in maritime employment." 432 U.S. at 265. While the Caputo Court went on to state that after the definition of navigable waters was legislatively changed in 1972, a requirement was added that the injured worker be "engaged in maritime employment," (which was defined to include "any longshoreman or other person engaged in longshoring operations, and any harbor worker including a ship repairman, shipbuilder, and shipbreaker...,") this was dicta since the Caputo issue involved employees injured on land.

   Randall went a step further than Perini and extended LHWCA coverage "to workers injured while transiently or fortuitously upon actual navigable waters..." and held that anyone doing his/her work over water is covered under the LHWCA. This approach has not been followed in the Eleventh Circuit. Brockington v. Certified Elec., 903 F.2d 1523 (11th Cir. 1990), cert. denied, 498 U.S. 1026 (1991)(land-based electrician injured while riding in boat in which he had helped load supplies and equipment for a land-based job on an island did not have status under the LHWCA; there was nothing inherently maritime about his task as an electrician and the "maritime environment" in which he was injured had no connection to the general nature of his employment.)

   As previously noted, Randall reflects the Fifth Circuit's current position. See also: Radcliff Gravel Co., Inc. v. Henderson, 138 F.2d 549 (5th Cir. 1943)(workers who trimmed sand and gravel as it was loaded on barges after being dredged from the bed of navigable waters and who drowned upon the capsize of their boat as they returned to shore, were engaged in maritime employment and were covered under the LHWCA.); Nalco Chemical Corp. v. Shea, 419 F.2d 572 (5th Cir. 1969)(delivering chemicals to oil platforms by boat was sufficiently maritime to render employer an "employer" within the LHWCA and therefore provide coverage under the LHWCA.); and Boudreaux v. American Workover, Inc., 680 F.3d 1034 (5th Cir. Unit A 1982)(en banc)(worker injured while performing marine petroleum exploration and extraction work aboard a drilling vessel located offshore but in state territorial waters, was engaged in maritime employment under the LHWCA; 1972 amendments did not disturb previous test that the LHWCA covers all injuries on navigable waters of employees whose employers employed one or more workers to labor on navigable waters.)

   The Sixth Circuit's position tracked that of the Fifth Circuit. See Interlake Steamship Co. v. Nielsen, 338 F.2d. 879 (6th Cir. 1964).

   Two years after Perini, however, in Herb's Welding v. Gray, 470 U.S. 414, 17 BRBS 78 (CRT) (1985), the Supreme Court stated that, "[w]hile maritime employment' is not limited to the occupations specifically mentioned in Section 2(3), neither can it be read to eliminate any requirement of a connection with the loading or construction of ships." But see Ward v. Director, OWCP, 684 F.2d 1114 (5th Cir. 1982), cert. denied, 459 U.S. 1170 (1983) (fish spotter pilot is covered); Holcomb v. Robert W. Kirk & Assocs., 655 F.2d 589 (5th Cir. Unit B 1981), cert. denied, 459 U.S. 1170 (1983); Fusco v. Perini N. River Assoc., 601 F.2d 659 (2d Cir. 1979), vac'd sub nom. 444 U.S. 1028 (1980); Tri-State Terminals v. Jesse, 596 F.2d 752 (7th Cir. 1979); Jacksonville Shipyards v. Perdue, 539 F.2d 533 (5th Cir. 1976), vac'd sub nom. Director, OWCP v. Jacksonville Shipyards, 433 U.S. 904 (1977).

   In Herb's Welding, however, the Court again expressly reserved the issue of whether the LHWCA applies to a worker injured while "transiently or fortuitously" upon navigable waters, although it noted in passing a "substantial difference between a worker performing a set of tasks requiring the worker to be both on and off navigable waters, and a worker whose job is entirely land-based but who takes a boat to work." Herb's Welding, 470 U.S. at 427 n.13.

[ED. NOTE: It must be remembered that in Herb's Welding, the claimant was injured on a fixed platform ("an artificial island") and thus was not injured over navigable waters.]

   The Fifth Circuit in Randall noted that the Supreme Court in Herb's Welding found that since that claimant could not meet the status test, he was excluded from LHWCA coverage without addressing the situs test. The Fifth Circuit first noted that Herb's Welding had left open the question of coverage while "transiently or fortuitously" upon navigable waters. 470 U.S. at 427 n.13.

   Next, the Fifth Circuit noted that this issue had already been addressed in Fontenot v. AWI, Inc., 923 F.2d 1127 (5th Cir. 1991) (wireline operator employed by oil field service company as a pipe recovery specialist who spent equal parts of time on shore, on fixed platforms, and on oil exploration/production vessels, and who is injured while on a crewboat was covered under the LHWCA).

   In Fontenot, the Fifth Circuit applied the Perini test (injured while on actual navigable waters while in the course of employment) rather than the Herb's Welding test (when not injured on navigable waters the claimant must show that his employment had some connection with the loading, unloading, repair, or construction of ships) because the claimant was injured while upon actual navigable waters in the course of his employment. Id. at 1133.

   Although the Fifth Circuit in Randall has followed the Fontenot holding, the court stated:

We have some difficulty with this analysis, specifically in the Fontenot court's conspicuous omission of the "in the course of his employment" element of Perini in its application of Perini to Fontenot's case. Part of the difficulty, however, stems from the language of Perini itself. In one passage in Perini, the Supreme Court strongly suggested that even workers who are injured on navigable waters are required to show that "they are required to perform their employment duties upon navigable waters." Perini, 459 U.S. at 324 (footnote omitted); see also Herb's Welding, 470 U.S. at 424 n.10 (pointing out that Perini was "carefully limited" to coverage of an employee injured while performing his job upon actual navigable waters). Yet, at the same time, the Perini Court insisted that the addition of the "status" test to the LHWCA by the 1972 Amendments did not diminish the LHWCA's traditionally broad coverage of workers injured on actual navigable waters. Perini, 459 U.S. at 315, see also Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty 428 (2nd ed. 1975) (observing that, at least before the 1972 Amendments, "workers who are not seamen but who nevertheless suffer injury on navigable waters are no doubt (or so the courts have been willing to assume) engaged in maritime employment'").

    Had the Fontenot court relied on the fact that Fontenot was employed on vessels, i.e., on actual navigable waters, some thirty percent of the time as well as on the day of his accident, its holding would be within the Perini rule. Instead, the court chose to rely solely on the situs of Fontenot's injury:

The Court [in Herb's Welding] did not address the status of an oil field employee injured while in transit on navigable waterways, or one who spent a substantial period of his time working on drilling vessels, rather than fixed platforms. Id. at 1130.

13 F.3d at 897.

   Relying on Herb's Welding and Caputo, the Eleventh Circuit came to a contrary result in Brockington when a land-based electrician was injured over navigable water. The Eleventh Circuit looked at the claimant's basic employment and found that he did not meet the status test:

    Although [the claimant] was injured on navigable waters, he was not in any sense engaged in loading, unloading, repairing or building a vessel, and his de minimis connection to maritime activity is simply insufficient to fulfill the "status" requirement of the LHWCA.

903 F.2d at 1528.

   The Eleventh Circuit has stated that Section 2(3) extends coverage to occupations beyond those specifically named by the statute. Sanders v. Alabama Dry Dock & Shipbuilding Co., 841 F.2d 1085 (11th Cir. 1988). See also Holcomb v. Robert W. Kirk & Assocs., 655 F.2d 589 (5th Cir. Unit B 1981), cert. denied, 459 U.S. 1170 (1983).

Griffin at slip op. p. 3 (emphasis added).

   While noting the Board's seemingly poised position to "adopt" either the Randall or Perini positions, one must keep in mind the facts of Randall to understand how liberally the Fifth Circuit provides coverage under the LHWCA. In Randall, the claimant was a mechanic on a fixed platform in the Gulf of Mexico. As a tropical storm was approaching, a vessel came to evacuate the platform. Randall swung by rope to the deck of the vessel which fell away from him and he dropped into the water and drowned. In holding that the deceased was a "maritime employee," the Fifth Circuit discussed Perini and concluded "situs" at the time of injury can satisfy the "status"requirement. In other words, because Randall was injured/drowned on navigable waters in the course of his employment he was engaged in maritime employment. Based on Perini, his place of injury/death satisfied "status".

   The group of workers who traditionally had been covered as maritime employees prior to the 1972 amendments by virtue of work on navigable waters includes such diverse occupations as marine construction workers, pile drivers, barge workers, deckhands, divers, airplane pilots (fish spotters), roustabouts and security guards. The Longshore Textbook, 3rd Ed. 1993.

   In Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137, 141, 7 BRBS 409, 411 (9th Cir. 1978), the court was more concerned with a "functional relationship" than it was with physical contiguity. The "functional relationship test" was later adopted by the Board in Bennett v. Matson Terminals, 14 BRBS 526 (1981), aff'd sub nom. Motoviloff v. Director, OWCP, 692 F.2d 87 (9th Cir. 1982).

   In Texports Stevedore Co. v. Winchester, 632 F.2d 504 (5th Cir. 1980), cert. denied, 452 U.S. 905 (1981), the court held that although an adjoining area need not be directly contiguous to navigable water, it must have a maritime nexus. The Fifth Circuit stated:

The situs requirement compels a factual determination that cannot be hedged by the labels placed on an area. Jacksonville Shipyards, 539 F.2d at 541. Just as we disapprove of a test that disposes of the question based totally on the presence of intervening or surrounding maritime facilities, we also reject the idea that Congress intended to substitute for the shoreline another hard line. Growing ports are not hemmed in by fence lines; the Act's coverage should not be either. All circumstances must be examined. Nevertheless, outer limits of the maritime area will not be extended to extremes. We would not extend coverage in this case to downtown Houston. The site must have some nexus with the waterfront.

Texports, 632 F.2d at 513-14.

   The court went on to analyze the parameters of "adjoining" as follows:

Although "adjoin" can be defined as "contiguous to" or "to border upon," it also is defined as "to be close to" or "to be near." "Adjoining" can mean "neighboring." To instill in the term its broader meaning is in keeping with the spirit of the congressional purposes. So long as the site is close to or in the vicinity of navigable waters, or in a neighboring area, an employee's injury can come within the LHWCA.

Id. But see Sidwell v. Express Container Services, Inc., 71 F.3d 1134, 29 BRBS 138 (CRT)(4th Cir. 1995), cert. denied, ___U.S.___, 116 S.Ct. 2570 (1996)(mem.); Parker v. Director, OWCP, 75 F.3d 929, 30 BRBS 10 (CRT)(4th Cir. 1996), cert. denied, ___U.S.___, 117 S.Ct. 58 (1996).

   Importantly, the situs inquiry looks to the nature of the place of work at the moment of injury. Jacksonville Shipyards v. Perdue, 539 F.2d 533, 4 BRBS 482 (5th Cir. 1976), vacated and remanded, 433 U.S. 904 (1977).

   In Hagenzeiker v. Norton Lilly & Co., 22 BRBS 313 (1989), the Board held that an accident on a public road within the port complex occurred on a covered situs as the entire port complex was used for importing and exporting cargo. Compare with Kerby v. Southeastern Public Service Authority, 31 BRBS 6 (1997), appeal pending, No. 97-1323 (4th Cir.), infra.

   A claimant who was engaged in maritime employment, but who was injured when he was struck by an automobile while returning from a restaurant located 1.5 miles from employer's terminal, was not injured on a maritime situs. Humphries v. Director, OWCP, 834 F.2d 372 (4th Cir. 1987), aff'g Humphries v. Cargill, Inc., 19 BRBS 187 (1986), cert. denied, 485 U.S. 1028 (1988). See also Cabaleiro v. Bay Refractory Co., 27 BRBS 72 (1993); McConnell v. Bethlehem Steel Corp., 25 BRBS 1 (1991).

   Where a lineman is on call twenty-four hours a day, seven days a week and sustains injuries in an automobile accident which occurred in the course of his employment, on a public road thirteen miles from a job site, he is nevertheless not covered under the LHWCA because he lacks situs. Morris v. Portland Lines Bureau, BRB No. 96-0472(unpublished)(1996).

   The breath of the requirements of a claimant's employment does not enlarge situs under the LHWCA. Coverage under Section 3(a) is determined by the nature of the place of work at the moment of injury. See Nelson v. Gray F. Atkinson Construction Co., 29 BRBS 39 (1995), Aff'd mem., No. 95-70333 (9th Cir. Nov. 13, 1996).

   The specific employment requirements concerning the use of a claimant's car and the use of public roads between the employee's residence and the docks do not automatically bring the location of the claimant's injury on a public road within the coverage of Section 3(a). The situs inquiry looks to the relationship of the place of injury to navigable waters. See generally Brown v. Bath Iron Works Corp., 22 BRBS 384, 389(1989); Davis v. Dovan Co. of California, 20 BRBS 121, 124-125 (1987), aff'd mem., 865 F.2d 1257 (4th Cir. 1989) (table); Lasofsky v. Arthur J. Trickle Engineering Works, Inc., 20 BRBS 58, 60 (1987), aff'd mem., 853 F.2d 919 (3rd Cir. 1988)(table).

[ED. NOTE: Compare the Board's position in Morris with the Third Circuit's position in Curtis v. Schlumberger Offshore Serv., 849 F.2d 805 (3rd Cir. 1988)(OCSLA case wherein the circuit court found that the OCSLA does not contain a "situs" requirement, that it covers injuries "arising out of or in connection with" an OCSLA operation). Cf. Mills v. Director, OWCP, 877 F.2d 356 (5th Cir. 1989)(en banc.)]

   In Kerby v. Southeastern Public Service Authority, 31 BRBS 6 (1997), appeal pending, No. 97-1323 (4th Cir.), wherein the claimant worked at a power plant which provided electricity and steam for shipbuilding and ship repair at a shipyard. However, since the power plant was separated from the shipyard by a fence around the shipyard, a private railroad spur, and a fence around the power plant, and since the power plant was not contiguous with navigable water the Board determined that the claimant did not satisfy the Section 3(a) situs requirement, though there was a covered status.        The fact that the power plant was located on Naval property adjacent to the naval shipyard in order to efficiently provide steam and electricity was of no consequence. The Board also noted that employer's power plant personnel do not have immediate access to Norfolk Naval Shipyard by virtue of their employment status with the employer. To enter the shipyard, employer's power plant employees need to obtain a special pass from the shipyard and must be escorted into the shipyard.

ED. NOTE: While the Board here is contained by Sidwell v. Express Container Service, Inc., 71 F.3d 1134, 29 BRBS 138 (CRT)(4th Cir. 1995), cert. denied, ___U.S.___, 116 S.Ct. 2570 (1996)(mem.)(an area is "adjoining" navigable water only if it is contiguous with, or otherwise touches navigable waters; to be included as an "other area" under the LHWCA, the area must be a designated shoreside structure or facility which must be "custodialy used by employer in loading, unloading, repairing, dismantling, or building a vessel."), this decision would most probably have been the same in other circuits, if one relies on the shipyard's personnel practices (i.e. security passes, escort) as a crucial element of analysis.]

   Interestingly, the Board noted that the fact that surplus electric power was sold off for non-shipyard commercial use was not dispositive.

   The situs requirement is not met solely because an employer's facility was customarily used and particularly suited for its ship-repair work, since any test which focuses only on whether the facility is used for a maritime purpose and whether a claimant is a maritime employee would effectively eliminate the situs requirement of Section 3(a). Davis v. Doran Co., 20 BRBS 121 (1987), aff'd mem., No. 88-3505, 22 BRBS 3 (CRT) (4th Cir. 1989) (unpublished).

   In Davis, the Board noted that this marine propeller repairing company did not front on water (one mile away by air, two miles by water) and "was in an area not primarily maritime as indicated by the presence of a bottling company, a linen service, an auto body shop, a public park, office buildings and residential housing in the area." The evidence disclosed that this structure was chosen simply because it would contain an overhead crane and would permit the movement of ship propellers throughout the facility. Its proximity to water was fortuitous, according to the Board.

   As to occupational diseases, the expanded situs requirement (after the 1972 Amendments) applies to employees and their survivors, even though the employee was exposed to the hazardous stimuli before the effective date of the Amendments, in an area that was not a covered situs before the 1972 Amendments. Insurance Co. of North America v. U.S. Dep't of Labor, 969 F.2d 1400, 26 BRBS 14 (CRT) (2d Cir. 1992), cert. denied, 113 S. Ct. 1253 (1993).

   In Nelson v. Guy F. Atkinson Construction Co., 29 BRBS 39 (1995), the Board found that the claimant failed to satisfy the situs requirement under Section 3(a) where, at the time of his injury, he was preparing and excavating, through the use of explosives, an area of dry land that would eventually become a navigational lock. The fact that the site of an injury will be navigable at some point in the future does not render the site navigable at the time of the injury. Id.

   Furthermore, as there was no evidence that the site of the claimant's injury was used by employer for maritime activities at the time of claimant's injury, the site did not constitute an "adjoining area." (Section 3(a) provides coverage for a disability resulting from an injury occurring on an "adjoining area"). Nelson, 29 BRBS at 41-42 (citing Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137, 141, 7 BRBS 409, 411 (9th Cir. 1978)).

See also Rizzi v. Underwater Construction Corp., 84 F.3d 199 (6th Cir. 1996), aff'g, 28 BRBS 360 (1994) (diver who was injured in an underground reservoir tank under a paper mill failed the situs test as required under Section 3(a) of the LHWCA as the tank did not constitute "navigable waters" pursuant to the section; it is irrelevant to a determination of navigability that water rushed in and out of tank and that claimant was subject to "maritime hazards"; nor did the tank constitute an "adjoining area" as there was no evidence to suggest that it was "used to load, unload, repair, dismantle, or build a vessel").

   A worker injured on board a ship in Alaskan navigable waters who is assisting in the clean up of the massive Valdez oil spill meets the situs test and the fact that some of the clean up work might have occurred on land adjacent to the water would not adversely affect the situs test. Fontenot v. Industrial Clean-up, Inc., 92-LHC-971(unpublished)(Aug. 17, 1992), appealed as Industrial Clean-up, Inc. v. U.S. Dept. of Labor, BRB, (appeal pending).

   For the purposes of determining situs a facility should not be divided into two functioning areas, maritime and non-maritime. Brickhouse v. Jonathan Corp., BRB Nos. 95-1556 and 96-1278 (unpublished)(1996), citing Sidwell v. Express Container Services, Inc., 71 F.3d 1134, 1140 n. 11, 29 BRBS 138, 144 n.11 (CRT)(4th Cir. 1995)(situs inquiry is concerned with whether the parcel of land adjoins navigable waters, "not the particular square foot on that parcel upon which a claimant is injured.") In Parker v. director, OWCP, 75 F.3d 929, 30 BRBS 10 (CRT)(4th Cir. 1996), the court noted that to be included as an "other area" under the LHWCA, the area must be custodialy used by the employer in loading, unloading, repairing, dismantling, or building a vessel."

[ED. NOTE: The Board has limited the application of the holding in Sidwell to cases arising within the Fourth Circuit. Arjona v. Interport Maintenance Company, Inc.,31 BRBS 86 (1997). The Board has limited the application of the holding in Sidwell to cases arising within the Fourth Circuit. Arjona v. Interport Maintenance Company, Inc.,31 BRBS 86 (1997).        The emphasis in Brickhouse was on the "area". The facility was on a 90 acre site adjoining a navigable river. While the majority of the work done at the facility was not maritime related, a "significant amount" was. Large completed projects were shipped out by barges which dock at the facility. The building in which claimant's injury occurred was about 800 feet from the river's edge. A third of the building was used for shipbuilding construction contracts. The Board, in Brickhouse, concluded that "situs will be conferred, even where an injury occurs on a non-maritime potion of a facility, if the overall facility upon which claimant is injured constitutes an "adjoining area" under Section 3(a)." Brickhouse, slip op. at 4.

Cong. Rec. S11623 Sept.20, 1984.

   In Chesapeake & Ohio Railway Co. v. Schwalb, 493 U.S. 40, 23 BRBS 96 (CRT) (1989), the Court held that land-based claimants at a relevant situs, engaged in activity that is an integral or essential part of loading or unloading a vessel, are covered under the LHWCA. Here two laborers were injured while doing housekeeping and janitorial services while cleaning spilled coal from loading equipment (one of their job duties). A pier machinist engaged in his primary duty of repairing coal-loading equipment was also injured. These injuries occurred at coal-loading facilities adjacent to navigable water.

   Thus, the Court found that workers "who are injured while maintaining or repairing equipment essential to the loading or unloading process are covered by the Act" even though they were not performing work essential to the loading process when they were actually injured. 493 U.S. at 47, 23 BRBS at 99 (CRT). The ship-loading process could not continue unless the equipment the claimants worked on was operating properly. Equipment cleaning is necessary to keep machines operating and is a form of maintenance and is only a degree removed from repair work.

   In Munguia v. Chevron U.S.A., Inc., 999 F.2d 808, 27 BRBS 103 (CRT), reh'g denied, 8 F.3d 24 (5th Cir. 1994), cert. denied, 114 S.Ct. 1839 (1994), the Fifth Circuit, after citing numerous Supreme Court decisions, held that a worker injured over land must show Section 2(3) activity which was an integral or essential part of loading or unloading a vessel, unless the worker falls into one of the occupations specified in Section 2(3). 999 F.2d at 811. See also Ferguson v. Southern States Cooperative, 27 BRBS 16 (1993) (mechanic who modified warehouse roof to accommodate the booms of incoming ships, assisted in docking every incoming ship, repaired machinery essential to the unloading process, and was actually performing maritime function at time of death, is covered under LHWCA); Arjona v. Interport Maintenance Company, Inc., 31 BRBS 86 (1997)(claimant injured while repairing shipping containers was doing maritime employment and thus satisfied status test.).

   In Bang v. Danos Curole Marine, BRB No. 96-0598 (unpublished)(Feb. 5, 1997) the Board, relying on the Munguia standard, found that a claimant's unloading duties were conducted solely to facilitate the operation of an oil and gas production facility, which it stated was not an inherently maritime operation under Herb's Welding, Inc. v. Gray, 470 U.S. 414, 17 BRBS 78 (CRT)(1985). See also Fontenot v. AWI, Inc., 923 F.2d 1127, 1130, 24 BRBS 81 (CRT)(5th Cir. 1991). Using the status test of Herb's Welding, the Board stated that where the employee is not over navigable water at the time of injury, then the employee is engaged in "maritime employment" only if his work is directly connected to the commerce carried on by a ship or vessel. Importantly, claimant's overall duties were maintenance duties related to keeping a natural resources facility operational and producing gas and oil, activities which were not inherently maritime, and involved little, if any, loading and unloading of "cargo" from boats.

[ED. NOTE: Compare this with the situation where a natural resources worker aboard a drilling ship would be covered, or a roustabout who routinely unloaded supply boats at a oil production platform would be covered.]

   In Gizoni, the Supreme Court held that a maritime worker whose occupation is one of those enumerated in the LHWCA, may, nevertheless, be a seaman within the meaning of the Jones Act. The inquiry into seaman status is fact-specific and depends on the vessel's nature and the employee's precise relation to it: "It is not the employee's particular job that is determinative, but the employee's connection to a vessel." Gizoni, 502 U.S. at ___, 112 S.Ct. at 492, 26 BRBS at 47 (CRT) (citing Wilander). In Gizoni, the claimant was a rigging foreman who worked on a floating platform and rode these platforms as they were towed into place.

[ED. NOTE: Gizoni does not, however, provide a clear, useable definition of a Jones Act "seaman."]

   Gizoni is easily distinguished from Caputo (focus on occupation, rather than duties at the time of injury) and Ford (find coverage because a claimant's work constitutes an occupation specifically enumerated in the LHWCA, or because his work falls within the general category of maritime employment). These cases both dealt with workers injured on land who helped to facilitate the movement of cargo between a ship and land transportation.

   The tests noted by the Court in Caputo and Ford examine the workers' specific situations to determine whether or not the workers are "maritime" workers entitled to LHWCA coverage, or simply, land-based workers entitled only to a state workers' compensation benefit.

   In Gizoni, the Court's inquiry was to focus on what type of maritime work Gizoni was employed to do--that of a LHWCA maritime worker or a Jones Act seaman. Recall, the LHWCA and the Jones Act are two mutually-exclusive remedies. Not all ship repairmen meet the requisite requirements of Wilander, 498 U.S. 337, to be seamen; but all ship repairmen qualify as maritime employees and are at least entitled to LHWCA benefits, unless they fall under a specific exception to the LHWCA.

   Note, the LHWCA applies to any person "engaged in maritime employment" and does not distinguish between management and non-management personnel. Sanders v. Alabama Dry Dock & Shipbuilding Co., 841 F.2d 1085 (11th Cir. 1988), rev'g 20 BRBS 104 (1987).

[ED. NOTE: However, this should not be confused with a single proprietorship. See Employer-Employee Relationship, infra.]

   In Sanders, 841 F.2d 1085, the court found that the claimant's responsibilities as a labor relations assistant satisfied the status test since those responsibilities were significantly related to, and directly furthered the employer's ongoing shipbuilding and ship repair operations.

   The court noted that whether particular job skills are uniquely maritime is not dispositive in determining whether the status test is satisfied. The proper focus should be upon whether the purposes served in applying the job skills directly relate to furthering the shipyard concerns of a covered employer.

   A model shop worker who built scale model components and battery wedges used in submarine construction is covered under the LHWCA. Peterson v. General Dynamics Corp., 25 BRBS 71 (1991).

   A worker engaged by a subcontractor of Exxon Corporation to assist in the cleaning of the massive "Valdez" oil spill in the navigable waters off of Alaska was found by one judge to be covered under the LHWCA. Fontenot v. Industrial Clean-up, Inc., 92-LHC-971 (August 17, 1992)(unpublished), appealed as Industrial Clean-up, Inc. v. U.S. Dept. of Labor, BRB (appeal pending). Judge Miller held that the employer, engaged by Exxon to assist in the clean-up of the spill of the tanker's cargo of oil, was a maritime employer. The judge found that the claimant's work was clearly a maritime activity conducted in a maritime environment. The work of cleaning up the navigable waters and shore satisfies the status test.

   A worker whose job duties are maintaining and operating equipment at a power plant which provides electricity and steam for shipbuilding and ship repair operations at the Norfolk Naval Shipyard is covered under Section 2(3)of the LHWCA. The Board felt that since electricity and steam are mandatory component in the shipbuilding and ship repair process. Compare Peter v. Hess Oil Virgin Island Corp., 903 F.2d 935, reh'g denied, 498 U.S. 1067 (1991)(Status test met where employee's connecting and disconnecting fuel hoses in loader process); Chesapeake and Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 47, 23 BRBS 96, 99 (CRT)(1989); Kerby v. Southeastern Public Service Authority, 31 BRBS 6 (1997), appeal pending, No. 97-1323 (4th Cir.).

395 U.S. at 360 (emphasis added).

   Under specific circumstances, several courts have found certain bridge construction workers to be covered under the LHWCA. In Le Melle v. B. F. Diamond Construction Co., 674 F.2d 296 (4th Cir. 1982), cert. denied, 459 U.S. 1177 (1983), a construction worker employed in the building of a draw bridge over navigable water was granted status under the LHWCA. The court found that the bridge was designed in part as an aid to navigation. It must be noted, however, that the employer had stipulated to situs because it thought this worker was standing on a bridge piling at the time of his injury. C.f. Nold v. Guy F. Atkinson Co., 9 BRBS 620 (1979), appeal dismissed, 784 F.2d 339 (9th Cir 1986); Crapanzano v. Rice Mohawk, U.S. Construction Co., Ltd., 30 BRBS 81 (1996)(no showing bridge was used for maritime purposes because no evidence that bridge aided in navigation).

   In Gilliam v. Wiley N. Jackson Co., 659 F.2d 54, 13 BRBS 1048 (5th Cir. 1981), cert. denied, 459 U.S. 1169 (1983), the court held that a construction site foreman had status when, at the time of his injury, he was supervising and assisting in the removal of pilings from a barge used in the building of a bridge. The unloading of this cargo had a realistically significant relationship to maritime activities. Importantly, the court noted that this holding did not mean that all persons injured while engaged in bridge building are covered employees.

   In Browning v. B. F. Diamond Construction Co., 676 F.2d 547, 14 BRBS 803, (11th Cir. 1982), cert. denied, 459 U.S. 1170 (1983), a bridge construction worker was covered because he was directly involved with the unloading of a vessel at the time of his death. It is noteworthy that the employer did not raise the situs issue.

   In Crapanzano the claimant worked as a journeyman ironworker constructing a bridge across a bay. His duties included: unloading a barge by hooking pre-cut concrete girders to the crane, climbing the bridge structure, and "loading" the girders (positioning them onto the pile caps); positioning reinforced beams; and bolting clips onto the girders and beams. Claimant was injured while walking along the girders on the bridge structure.

   In deciding Crapanzano, the Board noted that the Second Circuit (wherein jurisdiction resides for this case) has held that a construction worker whose duties involved occasionally unloading a barge carrying materials for construction of a structure which reaches from the shore to a point over the water was not engaged in maritime employment as there is no sufficient relationship to navigation or commerce on navigable waters. Fusco v. Perini North River Associates, 622 F.2d 1111, 12 BRBS 328 (2nd Cir. 1980), cert. denied, 449 U.S. 1131 (1981)(sewage disposal plant construction worker not maritime employee); See also Laspragata v. Warren George, Inc., 21 BRBS 132 (1988)(sewage treatment plant construction worker not a covered employee). Specifically, the Board stated:

Although claimant in the instant case unloaded materials from a barge, those items were for the purpose of constructing a non-maritime structure over water; therefore, his employment has no relationship to maritime commerce under the case law of the Second Circuit. See Fusco 622 F.2d at 1113, 12 BRBS at 332; see also Pulkoski, 28 BRBS at 303 (bridge construction worker not a maritime employee); Johnsen, 25 BRBS at 335 (bridge painter not a maritime employee); Laspragata, 21 BRBS at 135. Consequently, a claimant does not meet the Section 2(3) status requirement and cannot be classified as a maritime employee.

30 BRBS at 83.

   However, the Board noted that other circuits have held that the loading and unloading of construction materials constitutes traditional longshore activities. See Browning, (rig foreman involved with unloading construction materials from barge for bridge construction is a covered employee); Gillian (construction worker unloading materials from barge for bridge construction is covered); Smith v. Universal Fabricators, Inc., 21 BRBS 83 (1988), aff'd, 878 F.2d 843, 22 BRBS 104 (CRT)(5th Cir 1989), cert. denied, 493 U.S. 1070 (1990); Cf. Wilson v. General Engineering and Machine Works, 20 BRBS 173, 176 n. 4 (1988)(Board noted that notion of "traditional cargo" is outdated, but distinguished between maritime and military cargo). See also Kennedy v. American Bridge Co., 30 BRBS 1 (1996)(Board followed lead of Fifth and Eleventh Circuits in a Third Circuit case and held that a railroad bridge ironworker is covered because he loaded and unloaded construction materials to and from a barge).

   Using Director, OWCP v. Perini North River Associates, 459 U.S. 297 (1983), one can argue that a bridge worker actually working on a barge or other "vessel" over navigable waters when injured would meet both the situs and status tests. See Gilliam v. Wiley N. Jackson Co., 659 F.2d 54 (1981); See also: Randall v. Chevron U.S.A., Inc., 13 F. 3d 368 (1994).

   Compare Pulkoski v. Hendrickson, 28 BRBS 298 (1994), where the Board distinguished the case from Lemelle, finding that a bridge construction worker was not covered by the LHWCA because (1) the employer "had completed all bulkhead work [on the bridge] prior to the commencement of claimant's employment," (2) the claimant's employment did not bear a relationship to the loading, unloading, building, or repairing of a vessel, and (3) unlike Lemelle, where the bridge construction worker aided in improving the navigability of a river, in the case at bar, the claimant's employment did not aid navigation, but rather made the canal less navigable due to the lower clearance of the new bridge.

   See also Johnsen v. Orfanos Contractors, 25 BRBS 329 (1992) (distinguishing Lemelle, as the bridge in that case was under construction and thus claimant's injury on a piling in the river was on actual navigable waters; in the instant case, claimant performed maintenance upon a completed bridge, which is therefore an extension of land and not within coverage of the LHWCA).

   In this regard the claimant's alternative argument in Crapanzano is noteworthy. Claimant argues that the structure upon which he worked was actually a pier because it was not a completed bridge and therefore is a covered situs regardless of its use.

   Importantly, in Crapanzano, the Board relying on the holding of Nacirema Operating Co. v Johnson, 396 U.S. 212 (1969) found that as a matter of law, bridges are not a covered situs. In Nacirema, a pre-1972 amendment case, the claimants were injured while they were walking on piers attaching railroad cargo to ships' cranes for loading onto the ships. The Supreme Court, in Nacirema, noted well settled law which, prior to the enactment of the LHWCA, considered wharves, piers, and bridges permanently affixed to the land as extensions of land. The Court also acknowledged the language and purpose of the LHWCA and concluded that Congress specifically limited coverage under the LHWCA to those injuries which occurred on the seaward side of the "Jensen line." Consequently, in Nacirema, the Court held that the claimants who where injured while walking on piers were not employees within the meaning of the LHWCA. Nacirema, 396 U.S. at 212.

   In Crapanzano the Board opined that:

Although the piers and wharves referenced in Nacirema would no be covered under the [LHWCA] as amended in 1972, see 33 U.S.C. §903(a)(1982); Johnsen, 25 BRBS at 332 n. 1, the case still espouses good law regarding other extensions of land. In later cases, the Supreme Court acknowledged that the 1972 Amendments to the [LHWCA] pertaining to jurisdiction were drafted in response to its holding in Nacirema. However, it has not stated that those Amendments made its decision null and void. See Perini, 459 U.S. at 316-318, 15 BRBS at 74-75 (CRT); Caputo, 432 U.S. at 249, 6 BRBS at 150. Thus, the notion that a structure such as a bridge is an extension of land and may not constitute a covered situs is still legal precedent. See, e.g., Kennedy, 30 BRBS at 2; Johnsen, 25 BRBS at 332-333, Laspragata, 21 BRBS at 135.

Ford, 444 U.S. at 82-83.

   The Supreme Court has also held that land-based claimants at a relevant situs, engaged in activity that is an integral or essential part of loading or unloading a vessel, are covered under the LHWCA. Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40 (1989) (laborers injured while doing housekeeping and janitorial services while cleaning spilled coal from loading equipment were covered under LHWCA, as well as machinist engaged in his primary duty of repairing coal loading equipment).

Odness, 26 BRBS at 171.

   Not surprisingly, a messman/cook did not have a functional relationship to cargo-transfer operations. Coloma v. Chevron Shipping Co., 897 F.2d 394 (9th Cir. 1990), aff'g 21 BRBS 318 (1988), cert. denied, 498 U.S. 818 (1990). Here the Board rejected the claimant's argument that his work as a messman was directly linked to the loading and unloading of ships, stating that such work was too far attenuated from employer's cargo-transfer operations to constitute maritime employment under the LHWCA.

Thus, an employer was not a statutory employer if all of its employees worked on land. See Novelties Distribution Corp. v. Molee, 710 F.2d 992 (3d Cir. 1983), cert. denied, 465 U.S. 1012 (1984).

   Relying on this definition in a post-amendment case, the Board held that an employer who manufactured small boats was not engaged in shipbuilding because none of its employees were engaged in the construction of vessels over navigable waters, as defined prior to the 1972 Amendments, or on a dry dock, building way, or marine railway. Claimant, therefore, was not a shipbuilder subject to coverage under the LHWCA. Napoles v. Donzi Marine, 5 BRBS 685 (1977), appeal dismissed sub nom. Director, OWCP v. Donzi Marine, 586 F.2d 377 (5th Cir. 1978).

   The 1972 Amendments greatly expanded the definition of "employer:"

The term "employer" means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel).

33 U.S.C. § 2(4) (1972).

   The legislative history of the 1972 Amendments suggested, however, that there was

...no intention of extending coverage under the Act to individuals who are not employed by a person who is an employer, i.e., a person at least some of whose employees are engaged in whole or in part in some form of maritime employment. Thus, an individual employed by a person, none of whose employees work, in whole or in part, on the navigable waters, is not covered even if injured on a pier adjoining navigable waters.

S. Rep. No. 92-1125, 92d Cong., 2d Sess. 13 (1972); H. Rep. No. 92-1441, 92d Cong., 2d Sess. 11. See also Molee, 710 F.2d at 997-98.

   The Board has held that if a claimant is an "employee" within the meaning of Section 2(3) of the LHWCA, then the employer is an employer within the meaning of Section 2(4) of the LHWCA. Having one employee (any employee) engaged in maritime employment was sufficient to make the employer a maritime employer. Blundo v. International Terminal Operating Co., 2 BRBS 376 (1975), aff'd sub nom. Pittson Stevedoring Corp. v. Dellaventura, 544 F.2d 35 (2d Cir. 1976), aff'd sub nom. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977); Harris v. Maritime Terminals, 1 BRBS 301, 340 (1975), rev'd sub nom. I.T.O. Corp. v. Benefits Review Bd., 529 F.2d 1080 (4th Cir. 1975), rev'd on rehearing en banc, 542 F.2d 903 (4th Cir. 1976), vacated and remanded sub nom. Atkins v. I.T.O. Corp., 433 U.S. 904, reinstated on remand, 563 F.2d 646 (4th Cir. 1977).

   The Supreme Court noted the inconsistency between the actual wording of Section 2(4) and the expression in the legislative history, but did not endorse either interpretation. Director, OWCP v. Perini N. River Assocs, 459 U.S. 297, 314 n.24 (1983).

   The Third Circuit stated, however, that the language of the statute is "unproblematic," and determined that the employer was a statutory employer because its employee was engaged in maritime employment in a terminal area. Molee, 710 F.2d 992. The court stated that it did not matter that the employer was an agent of the consignees, and not an agent of its parent stevedoring company.

   The Fifth Circuit has stated that it is clear that Section 2(4) requires merely that an employer have at least one employee engaged in maritime employment, as defined in Section 2(3), on a situs, as defined in Section 3(a). Jacksonville Shipyards v. Perdue, 539 F.2d 533, 538 n.9 (5th Cir. 1978), aff'd on other grounds sub nom. P.C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979).

   Thus, if a claimant can satisfy Sections 2(3) and 3(a) of the LHWCA, his employer is automatically brought within Section 2(4). A maritime employee can make his employer a maritime employer. See Hullinghorst Indus. v. Carroll, 650 F.2d 750 (5th Cir. 1981), cert. denied, 454 U.S. 1163 (1982).

   If claimant fails to meet one of the jurisdictional elements, it is immaterial whether or not employer would qualify as a statutory employer. Carroll, 650 F.2d 750.

   The Board has held consistently that, where an employer has an employee engaged in maritime employment, the employer is a statutory employer under Section 2(4). Spencer v. Baker Agric. Co., 16 BRBS 205 (1984); Perez v. Sea-Land Servs., 8 BRBS 130 (1978). The Board seemingly has not included the situs requirement in its definition of Section 2(4), but in Spencer situs was not at issue, and in Perez, the Board went on to affirm the judge's finding of situs.

   The LHWCA does not define "employer" in terms of the types of entities that qualify. Instead, it defines the class of employees covered by the LHWCA and then defines "employer" as "an employer any of whose employees" are covered by the LHWCA. (When Congress extended the LHWCA to cover oil recovery operations on the Outer Continental Shelf, it changed the class of covered employees but repeated without change the definition of employer.)

   The LHWCA does not limit the type of legal entity that can qualify as an employer. Given the intent of Congress to provide coverage to all persons within the statutory definition of employee, the conclusion is inescapable that any entity capable of employing a statutory "employee" can qualify as an employer, including partnerships and joint ventures. Davidson v. Enstar Corp., 848 F.2d 574, 577, rev'd on other grounds, 860 F.2d 167 (5th Cir. 1988).

   "Employer" is currently defined as follows:

(4) The term "employer" means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing or building a vessel).

H.R. Conf. Rep. 98-1027, 98th Cong., 2d 23 (1984).

   A fish spotter is not an aquaculture worker. Zapata Haynie Corp. v. Barnard, 933 F.2d 256 (4th Cir. 1991), aff'g 23 BRBS 267 (1990). This occupation does not involve the controlled cultivation and harvesting of animals. Also, the claimant in that case was not involved in the processing of the caught fish.

   See Hutchinson v. Mavar Shrimp & Oyster Co., 14 BRBS 48 (ALJ) (1982) (laborer in a canning facility who handles and moves roller baskets containing canned pet food to a cooker is clearly involved in the processing and canning operation, and his duties bear no significant relationship to maritime activity.).

   See also Loggins v. Newport Shrimp Co., 20 BRBS 814 (ALJ) (1988) (utility worker who was assisting in the unloading of squid from a boat was engaged exclusively in the business of cleaning, processing and canning fish, and is thus an excluded aquaculture worker). See also: Green v. C.J. Langenfelder and Son, Inc., 30 BRBS 77 (1996)(on remand the Board instructed the ALJ to consider aquaculture issue if by using the Board's guidelines, ALJ concluded that "seaman" exclusion did not apply to employee attempting to fix conveyor belt onboard oyster harvester dredge).

   But see Ljubic v. United Food Processor, 30 BRBS 143 (1996) (maintenance supervisor who maintained/repaired equipment on the dock of a cannery was not excluded from coverage as a aquaculture worker, because his work constituted "traditional maritime employment" and workers engaged in both maritime and non-maritime employment "cannot walk in and out of coverage").

[ED. NOTE: Remember: A worker engaged in longshoring activity during at least a portion of his working day is covered under the LHWCA since to exclude him would be to reinstate the same degree of shifting and fortuitous coverage that Congress intended to eliminate. Brady-Hamilton Co. v. Herron, 568 F.2d 137, 140 (9th Cir. 1978).]

S11624 Cong. Rec. (Sept. 20, 1984).

   If the facility receives federal maritime subsidies, or the employer's workers are not covered under a state workers' compensation system, then the facility is not excluded.

   Note that the exclusion applies only to employees that are not working over navigable waters or on an adjoining pier, wharf, dock, facility over land for launching vessels, or facility over land for hauling, lifting, or drydocking vessels. Those so working will continue to be covered.

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