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January 10, 1997 |
In the U.S. Supreme Court: For the fourth time in six years, the Court determines the definition of a 'seaman'By Thomas C. Galligan, Jr., Professor of Law, Louisiana State University Law Center [FNa](1-10-97 WLN 14253) Editor's Note: The views expressed in this article are those of the author, and do not necessarily reflect the opinions of West's Legal News or the West Group. TABLE OF CONTENTS
In Harbor Tug and Barge Company, Inc. v. Papai, the U.S. Supreme Court will consider its fourth seaman status case of the 1990s. In the case, which will be argued before the Justices Jan. 13, the Court may further define the relevant "employment" relationship for determining seaman status and may have to decide whether the vessels on which a putative seaman works must be commonly owned or controlled. Either alternatively or additionally, the Court must address an apparent split between the 5th and 9th Circuits as to the effect an administrative law judge's (ALJ) determination of coverage under the Longshore and Harbor Workers' Compensation Act (LHWCA) on a later Jones Act claim. That is, does an administrative law judge's determination that a worker is covered by the LHWCA, 33 U.S.C.A. § 901 et seq., preclude the worker from later establishing seaman status under the Jones Act, 46 App. U.S.C.A. § 688? This issue is of critical importance because the LHWCA and Jones Act are mutually exclusive. Coverage under one precludes coverage under the other. Both of the seaman status issues raised in Papai are questions left unanswered by the Court's three recent seaman status cases. In Papai
v. Harbor Tug and Barge Company The Supreme Courts granted a writ of certiorari to consider these two issues:
Seamen occupy a favored status in maritime law. Among other rights, a seaman is entitled to: (1) maintain a negligence action against his employer under the Jones Act, 46 App. U.S.C.A. § 688, (2) recover damages arising out of the unseaworthiness of the vessel on which he works, and (3) recover maintenance and cure from his employer. Ironically, Congress has never defined the term "seaman." Congress' most significant utterance on the meaning of this key word is found in the LHWCA, 33 U.S.C.A. 901 et seq. The LHWCA provides a generous, but traditional, workers compensation scheme for maritime workers such as longshore workers, ship builders, ship repairers, and ship breakers. Most notably, the LHWCA excludes from coverage the "master or member of the crew" of a vessel, i.e. "seamen." 33 U.S.C.A. § 902 (3)(G). Thus, the LHWCA and the Jones Act are mutually exclusive. If one is a seaman, one is not legally an LHWCA worker, and vice versa. Unlike seaman's claims, which are litigated in state or federal court more or less like any lawsuit, LHWCA claims are handled administratively through the U.S. Department of Labor. For more than 30 years the U.S. Supreme Court was silent on the seaman status issue.
However, since 1991 the Court has spoken three times on seaman status in: McDermitt
International, Inc. v. Wilander Synthesizing that jurisprudence, a seaman must have an employment-related connection to a vessel or group of vessels in navigation. More particularly, the worker must do the work of the vessel, but the worker need not aid in navigation. Thus, in Wilander, a foreman on a paint boat was a seaman. Additionally, after Chandris, the seaman must have a connection to a vessel or group of vessels that is substantial in both duration and nature. As to duration, the Court in Chandris adopted the 5th Circuit's rule of thumb that a worker must spend 30% of his or her time on a vessel or fleet of vessels in navigation. Finally, according to Gizoni, simply because a worker's job is one of those listed in the LHWCA, 33 U.S.C.A. § 902(3) (i.e., ship repairer) does not mean that she may not still be a seaman if she establishes the requisite employment related connection to a vessel (or group of vessels) in navigation. Additionally, in Gizoni the Court said that the mere receipt of LHWCA benefits did not preclude a worker from later claiming seaman status. In each of the three cases, the Court attacked issues of broad concern. Its opinions were not narrowly tailored to the facts of the case. Instead, the Court articulated basic principles relevant to the determination of seaman status. These principles converge on the uncertainty in Papai. Respondent John Papai was a qualified deckhand and a member of the Inland Boatman's Union of the Pacific (IBU). Papai worked at "various maritime related jobs for various companies." 67 F.3d at 204. Papai obtained his maritime jobs through the IBU hiring hall; assignments were made on a day-to-day basis. Petitioner Harbor Tug and Barge Co. (HTB) was one of the "employers" to whom the IBU dispatched Papai. Before March 12, 1989, Papai had worked for HTB on 12 occasions during 1989. On March 12, the IBU dispatched Papai to HTB to perform maintenance work on an HTB tug. While painting the vessel, Papai fell from an allegedly defective ladder and suffered the injuries that form the basis of his claim. Papai filed suit in federal district court alleging negligence under the Jones Act and unseaworthiness -- causes of action he could assert only if he was a "seaman" at the time of his accident. Papai's wife sought to recover loss of consortium damages. HTB moved for summary judgment, arguing Papai was not a seaman. The 9th Circuit denied an interlocutory appeal of that issue. Later, after the Supreme Court decided Wilander and Gizoni , the district court reaffirmed its earlier decision, reasoning Papai did not have a sufficiently permanent connection with the HTB vessel on which he was injured. After the district court granted HTB's motion for summary judgment, Papai filed an LHWCA claim. At the LHWCA hearing, HTB reversed its position and argued that Papai was indeed a seaman, but the ALJ decided Papai was an LHWCA worker and not a seaman. Thereafter, the district court decided Papai could not recover on his 33 U.S.C.A. § 905(b) vessel negligence claim against HTB. At that point, Papai appealed the district court's decisions, which included the seaman status decision. The 9th Circuit reversed. First, the 9th Circuit held that the district court's summary judgment on the seaman status issue was improper. The court indicated that if the type of work Papai performed out of the union hall on a daily assignment basis for multiple employers would have made him a seaman if he had performed that work for one employer, he should still be considered a seaman. On this important point, the court relied upon the Supreme Court's statement in Chandris that seaman status is based upon the total circumstances of one's employment, including reassignments. While one might have read the Supreme Court's language in Chandris as referring to reassignment by one employer (the way in which the 5th Circuit has recently interpreted the "reassignment" doctrine), the 9th Circuit in Papai did not read the Chandris reassignment language so narrowly. As the 9th Circuit said: "In short, all the circumstances surrounding the work performed by plaintiff for defendant as a deckhand prior to (and after, if any) the accident, as well as work performed for other employers during the relevant time should be considered in making the determination." 67 F.3d at 206. By so holding, the 9th Circuit essentially determined that the "fleet"
doctrine, under which one may be a seaman if he works on a fleet of vessels, is not
limited to groups of vessels that are commonly owned or controlled. The 5th Circuit, on
the other hand, has held that in order to qualify as a seaman, the vessels on which a
seaman works must be commonly owned or controlled. Most notably, the 5th Circuit has held
that a river pilot who pilots vessels owned by a number of different entities is not a
seaman. Bach
v. Trident S.S. Co. On the basic employment issue as it relates to seaman status, the Court is faced with several alternative avenues for decision, all of which also may involve the fleet issue. The Court could limit its decision to the union hiring hall context, concluding that an industry cannot use daily assignments from a union hiring hall to shield itself from legal responsibility to those working in that industry as seamen. Alternatively, the Court could more broadly hold that seaman status must be determined in the context of one's career, noting the possibility of reassignments that "restart" the 30% temporal seaman status clock critical to "duration" after Chandris. Such a holding would lead to greater uncertainty regarding seaman status, especially in cases involving "brownwater" seamen. Finally, the Court might hold that employment is a relational concern and that Papai's
employment with HTB was, in fact, a one-day affair. Under that "job" approach,
courts would determine seaman status in Papai's case on a day-to-day basis, like his job
assignments. While easier to administer than the previous career option, the drawback with
the "job" approach is that a worker's status might change from day-to-day.
Interestingly, the 9th Circuit, which used the industry or career approach in Papai,
seemed to use the "job" approach in another case, Graham v. Boy
Scouts of America While the Supreme Court rejected the "voyage" rule in Chandris , the relational/job approach just described is not a reincarnation of that "voyage" rule. Under the "voyage" rule, someone who worked for an employer for 10 years without going to sea, but who then was injured on a voyage for that employer although he was not reassigned, would be a seaman. Under the relational approach, that hypothetical worker's status would be gauged in light of his total employment relation with his employer and he probably would not be a seaman under Chandris, since there is no voyage rule. However, if the worker changed employers and then went on a cruise for the new employer, the worker's status would be determined solely in relation to the second employer, not by what the worker had done before. Under the job approach to seaman status, a voyage would not have any talismatic effect but would be relevant to determining the worker's status vis-a-vis the new employer. Thus, Papai raises important seaman status issues concerning the fleet doctrine and how one defines or determines employment. However, Papai also raises another question, which, if decided in HTB's favor, could obviate the need to address the seaman status issues. 6.0 THE EFFECT OF AN ALJ'S DECISION ON SEAMAN STATUS HTB argued below that the ALJ's decision that Papai was an LHWCA worker and not a seaman precluded any redetermination of that issue. The 9th Circuit rejected HTB's argument. It noted that the Supreme Court, in Gizoni , held that mere receipt of LHWCA benefits did not preclude later litigation of the seaman status issue. The 9th Circuit did not believe actual litigation of the status issue before an ALJ mandated a different result. Otherwise, the employer who voluntarily paid benefits could be subjected to a later suit claiming seaman status whereas the employer who litigated the LHWCA claim might not. Additionally, the 9th Circuit noted that the employer would receive a credit against its liability to a seaman for any LHWCA benefits actually paid before a court determined the worker was a seaman. By refusing to hold that the ALJ's decision precluded further litigation, the 9th
Circuit in Papai prolonged an apparent split with the 5th Circuit. In Sharp v.
Johnson Bros. Corp. HTB contends that the exclusive remedy provision of LHWCA § 905(a) mandates the conclusion that once an ALJ determines a worker is entitled to LHWCA benefits, the seaman status issue is finally resolved. HTB also points to the doctrine of administrative estoppel and argues that any credit against liability is imperfect at best because the credit provided would be a net credit (after deduction of attorney fees). Papai counters that Congress never intended to enact an election of remedies doctrine when it passed the LHWCA. Moreover, Papai argues that LHWCA § 905(a) does not require a court to give an ALJ's determination of status any preclusive effect. In support, Papai points out that the Supreme Court has interpreted § 905(b) of the LHWCA as giving certain LHWCA workers a tort claim against their employers. Finally, Papai argues that if an ALJ's decision might have some preclusive effect in another case, there are various exceptions to collateral estoppel that prevent the application of the doctrine in Papai. On the preclusion issue, the Court might broadly hold that an ALJ's determination of status is final. One thorn in the side of this argument is the rule that a successful claimant in an LHWCA proceeding may not appeal because he is not an aggrieved party. Alternatively, the Court might simply agree with the 9th Circuit and hold that an ALJ's decision has no preclusive effect on seaman status. More narrowly, the Court might either apply some exception to "collateral estoppel," without deciding the broader issue, or, the Court might simply affirm the 9th Circuit's decision on this point without adopting its broad language. That is, the Court might decide that the ALJ's decision does not prevent Papai from claiming seaman status because of the facts of the case. Here, before filing his LHWCA claim, Papai claimed he was a seaman. Papai did not file an LHWCA claim until after the district court entered summary judgment against him on the seaman status issue. Finally, the Court might decide Papai was not a seaman; consequently, it would not have to decide the ALJ/LHWCA issue. As noted, Papai argues that the Court, in deciding seaman status, must consider the total circumstances of his employment, not just his employment with HTB. Papai also argues that his employment with HTB alone might support a decision he was a seaman. In examining the total circumstances of his employment, Papai asks the Court to interpret the fleet doctrine broadly. In reference to the ALJ determination, Papai argues that there is no election of remedies doctrine under the LHWCA and that, for various reasons, collateral estoppel should not apply to the ALJ's decision. HTB contends that under the fleet doctrine, Papai did not work on a commonly owned or controlled fleet of vessels. Additionally, HTB alleges that ALJ determinations of status must and should have binding effect. Industrial Indemnity Company, Unions Fire Insurance Company of Pittsburgh, Eagle Pacific Insurance Company, Matson Navigation Company, and the Longshore Claims Association filed one amicus brief in support of HTB. The Shipbuilders Council of America and Southwest Marine, Inc. filed another. The U.S. government and the United Brotherhood of Carpenters and Joiners of America each filed an amicus brief in support of Papai. Papai presents the Court with its fourth seaman status case of the '90s. Papai may force the Court to reexamine its seaman status test from Chandris and define the relevant employment relation for seaman status purposes and to set the contours of the fleet doctrine. Alternatively or additionally, the Court will consider the effect of an ALJ determination on seaman status. While the Court could decide either or both issues on narrow grounds, its trend in recent seaman status cases has been to articulate broad rules and principles. Papai may test that trend. AUTHOR BIOGRAPHY [FNa] Thomas C. Galligan, Jr., Professor of Law, Louisiana State University Law Center. Professor Galligan has an LL.M. from Columbia University, 1986, a J.D. summa cum laude from the University of Puget Sound School of Law (now Seattle University School of Law), 1981, and an A.B. from Stanford University, 1977. He teaches Torts, Admiralty, and UCC Sales. Professor Galligan's address is: LSU Law Center, East Campus Dr., Baton Rouge, LA, 70803-1000. His telephone number is (504) 388-8325 and his fax number is (504) 388-5935. CASE DISCUSSED Papai v. Harbor Tug and Barge Co., 67 F.3d 203 (9th Cir. (Cal.) Sept. 25, 1995) (Fact
question as to worker's connection to tugboat on which he was injured precluded summary
judgment as to whether he was seaman; worker's litigation of LHWCA claims and receipt of
benefits thereunder did not bar his Jones Act claim.), WESTLAW Find command: fi 67 F.3d 203 U.S. SUPREME COURT MERIT BRIEFS Petitioner's Brief, Nov. 12, 1996, WESTLAW Find command: fi 1996 WL 656358 Respondents' Brief, Dec. 10, 1996, WESTLAW Find command: fi 1996 WL 711150 Petitioner's Reply Brief, Dec. 27, 1996, WESTLAW Find command: fi 1996 WL 739257 U.S. SUPREME COURT AMICUS BRIEFS Amicus Brief of Industrial Indemnity Company, National Union Fire Insurance Company of Pittsburgh, Pa, Eagle Pacific Insurance Company, Matson Navigation Company and the Longshore Claims Association, in support of petitioner, Nov. 12, 1996, WESTLAW Find command: fi 1996 WL 658767 Motion for Leave to File Brief Amici Curiae and Amicus Brief on behalf of the Shipbuilders Council of America and Southwest Marine, Inc., in support of petitioner, Nov. 8, 1996, WESTLAW Find command: fi 1996 WL 656296 Amicus Brief for the United States, supporting respondents, Dec. 10, 1996, WESTLAW Find command: fi 1996 WL 714747 Amicus Brief of United Brotherhood of Carpenters and Joiners of America, in support of respondents, Dec. 10, 1996, WESTLAW Find command: fi 1996 WL 711152 STATUTES 33 U.S.C.A. § 901 et seq., Longshore and Harbor Workers' Compensation Act, WESTLAW Find command: fi 33 USCA 901 33 U.S.C.A. § 902 (3)(g), Longshore and Harbor Workers' Compensation Act - Definitions ("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 term does not include-- (G) a master or member of a crew of any vessel") 33 U.S.C.A. § 905(b), Longshore and Harbor Workers' Compensation Act - Exclusiveness of liability - Negligence of vessel, WESTLAW Find command: fi 33 USCA 905 46 App. U.S.C.A. § 688, Jones Act - Recovery for injury to or death of seaman, WESTLAW Find command: fi 46 App. USCA 688 CITED CASES Supreme Court cases: Chandris, Inc. v. Latsis, 115 S.Ct. 2172 (U.S.N.Y. June 14,
1995) (For employee to qualify as "seaman" under Jones Act, employee's duties
must contribute to function of vessel or to accomplishment of its mission, and employee
must have connection to vessel in navigation, or to identifiable group of such vessels,
that is substantial in terms of both its duration and nature.), WESTLAW Find command: fi 115 S.Ct. 2172 Southwest Marine, Inc. v. Gizoni, 112 S.Ct. 486 (U.S.Cal. Dec. 4, 1991) (Merely because
a worker's job is one described in the LHWCA does not mean he or she is not a seaman; mere
receipt of LHWCA benefits does not preclude later litigation of seaman status.), WESTLAW
Find command: fi 112 S.Ct. 486 McDermitt International, Inc. v. Wilander, 111 S.Ct. 807 (U.S.La. Feb. 19, 1991) (In
order to be a seaman, a worker need not aid in navigation as long as he or she is doing
the work of the vessel)., WESTLAW Find command: fi 111 S. Ct. 807 Courts of Appeals cases: Fisher v. Nichols, 81 F.3d 319, 323 (2d Cir. (N.Y.) April 11, 1996) (The court refuses
to slavishly apply the fleet doctrine.), WESTLAW Find command: fi 81 F.3d 319 Boy Scouts of America v. Graham, 86 F.3d 861 (9th Cir. (Cal.) Feb. 15, 1996), as
amended on denial of reh'g and reh'g en banc (July 13, 1996) (There was genuine issue of
material fact as to whether claimant had connection to vessel that was substantial in
duration and nature, precluding summary judgment in favor of charterer on issue whether
claimant was a Jones Act "seaman."), WESTLAW Find command: fi 86 F.3d 861 Figueroa v. Campbell Industries, 45 F.3d 311 (9th Cir. (Cal.) Jan. 13, 1995) (Worker's
recovery under LHWCA as "non- seaman" failed to bar by collateral estoppel any
subsequent action as a "seaman" under Jones Act.), WESTLAW Find command: fi 45 F.3d 311 Sharp v. Johnson Bros. Corp., 973 F.2d 423 (5th Cir. (La.) Sept. 25, 1992), reh'g
denied, 979 F.2d 211 (5th Cir. (La.) Nov. 10, 1992), cert. denied, 113 S.Ct. 2333 (U.S.La.
May 17, 1993) (An order approving an LHWCA settlement precludes later seaman status
litigation.), WESTLAW Find command: fi 973 F.2d 423 Bach v. Trident S.S. Co., 920 F.2d 322 (5th Cir. (La.) Jan. 10, 1991), vacated and
remanded, 111 S.Ct. 2253 (U.S.La. June 3, 1991), reinstated on remand, 947 F.2d 1290 (5th
Cir. (La.) Dec. 2, 1991) (A river pilot is not a seaman because he does not work on a
commonly owned or controlled group of vessels)., WESTLAW Find command: fi 920 F.2d 322 TREATISE 14 Fed. Prac. & Proc. Juris.2d s 3677, Cases involving maritime torts--jurisdiction under the Jones Act, WESTLAW Find command: fi FPP s 3677 Frank L. Maraist, Admiralty in a Nutshell (West 3d ed. 1996). Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty (2d ed. 1975). RELATED LEGAL ARTICLES Kelly (Recent Development), "Chandris, Inc. v. Latsis: The Supreme Court addresses the vessel connection requirement for seaman status under the Jones Act," 70 Tul. L. Rev. 825, December 1995 , WESTLAW Find command: fi 70 TLNLR 825 Allbritton and Robertson, "Seaman status after Chandris, Inc. v. Latsis," 8 U.S.F. Mar. L.J. 29, Fall 1995, WESTLAW Find command: fi 8 USFMLJ 29 CONTACTING WEST'S LEGAL NEWS To Comment ... on this article or other material published by West's Legal News, or to write a letter to the editor, please include your name, address and telephone number. WLN reserves the right to edit letters. Address correspondence as follows:
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