Case number eleven on my list of landmark U.S. Supreme Court Longshore cases is a Jones Act case, but with significant consequences for the adjudication of claims under the Longshore Act.
The employer in the case of Southwest Marine, Inc. v. Byron Gizoni, 502 U.S. 81 (1991), operated a ship repair facility. It owned several floating platforms and barges which it moved around by tugboats. The tugs positioned the platforms alongside vessels under repair. The platforms were used to move equipment, materials, supplies, and vessel components around the shipyard. Once in place, the platforms supported the ship repair personnel.
The plaintiff in this case was a rigging foreman who worked on and rode the floating platforms as they were towed into place. He occasionally served as lookout and gave maneuvering signals to the tugboat operators and secured lines from the platforms to the vessels under repair.
The plaintiff received voluntary payment of workers’ compensation benefits under the Longshore Act from the employer’s workers’ compensation insurance carrier, but he filed a seaman’s lawsuit against his employer seeking tort damages under the Jones Act.
Many questions were raised in this case, and its pivotal holdings have complicated the overlapping coverage and jurisdictional issues between the (mutually exclusive) Longshore and Harbor Workers’ Compensation Act and the Jones Act.
Among the key questions:
- May a maritime worker whose occupation is one of those enumerated in the Longshore Act (ship repair) nonetheless be a seaman under the Jones Act?
- Does the exclusivity provision of section 905(a) of the Longshore Act apply to a “ship repairman” who may also be a Jones Act seaman?
- Does the voluntary payment and receipt of Longshore Act benefits preclude a subsequent Jones Act lawsuit?
- Is it essential to the administration of the Longshore Act by the U.S. Department of Labor that its resolution of the issue of coverage should preempt a Jones Act lawsuit??
- Does the doctrine of equitable estoppel apply to the situation whereby a worker must elect his remedy between the Longshore Act and the Jones Act?
- Must a maritime worker aid in the navigation of a vessel in order to qualify as a seaman?
- Were the floating repair platforms in this case “vessels” for purposes of the Jones Act?
In the Jones Act lawsuit, the federal district court granted summary judgment to the employer based on the facts that the floating platforms were not vessels and that the claimant was a ship repairman, not a seaman, and was precluded from suing his employer by the exclusivity provision in section 5(a) of the Longshore Act (33 U.S.C. 905(a)).
The federal Ninth Circuit Court of Appeals reversed the district court’s grant of summary judgment on the issue of seaman status, finding that questions of fact existed as to seaman status and whether the platforms were vessels. The Ninth Circuit also reversed the district court’s ruling that the claimant was precluded from bringing suit by the Longshore Act’s exclusivity provision.
The U.S. Supreme Court granted review. The federal Fifth Circuit had held to the contrary on several of these issues in Pizzitolo v. Electro-Coal Transfer Corp., 812 F.2d 977 (1987) so a circuit conflict existed. The Supreme Court affirmed the Ninth Circuit’s rulings, and in the process established several important principles.
- Does exclusivity protect the employer from suit?
Section 5(a) states,
“Exclusiveness of liability
The liability of an employer … shall be exclusive and in place of all other liability of such employer to the employee … and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death ….”
Of course, section 5(a) provides the employer with immunity from lawsuits by employees covered by the Longshore Act. But if the “employee” could arguably be a Jones Act seaman, excluded from Longshore Act coverage by section 2(3)(G), then the exclusivity provision would not apply to bar his seaman’s suit.
- What about the voluntary payment of benefits under the Longshore Act? That was an easy one. The Supreme Court stated, “It is universally accepted that an employee who receives voluntary payments under the Longshore Act without a formal award is not barred from subsequently seeking relief under the Jones Act.
- Is it essential to the administration of the Longshore Act that its resolution of the issue of coverage should preempt a Jones Act lawsuit? No. Resolution of the question of coverage is not left in the first instance to the U.S. Department of Labor in its administration of the Longshore Act. The injured worker decides which remedy to pursue (and he may pursue both simultaneously).
- Does the doctrine of equitable estoppel apply to the situation whereby a worker must elect his remedy between the Jones Act and the Longshore Act? No. The doctrine of equitable estoppel does not apply to prevent an injured worker from taking inconsistent positions in his pursuit of mutually exclusive remedies. Because of the credit to the employer provided in section 3(e) of the Longshore Act, the critical element of detrimental reliance is not present. Congress did not intend to require an election of remedies in the first instance.
- Must a maritime worker aid in the navigation of a vessel in order to qualify as a seaman? No. This was no longer part of the test for seaman status at the time the Gizoni case reached the Supreme Court. The Court states, “Our decision in Wilander (McDermott v. Wilander, 498 U.S. 337 (1991)), jettisoned any lingering notion that a maritime worker need aid in the navigation of a vessel in order to qualify as a seaman under the Jones Act. A maritime worker need only be doing a ship’s work, not aid in its navigation, to qualify as a seaman.”
- Were the floating repair platforms in this case “vessels” for purposes of the Jones Act? Questions of fact existed on this issue so that summary judgment was not appropriate (remember that the federal district court had granted summary judgment to the employer).
- So we are left with the primary, basic question. May a maritime worker whose occupation is one of those enumerated in the Longshore Act nonetheless be a seaman under the Jones Act? There’s obviously been a lot of water under the bridge on this issue since the Gizoni decision in 1991, and the answer is obviously “yes”. The Ninth Circuit had held that a “ship repairman” can still be a “seaman”, and the Supreme Court affirmed.
The Gizoni decision in a nutshell: Even though a worker’s occupation is enumerated in the Longshore Act the worker can not be precluded from entitlement to Jones Act benefits if he can successfully pass the test for seaman status. The injured worker does not have to choose between two mutually exclusive remedies. He is not precluded by the doctrines of judicial estoppel or collateral estoppel from pursuing both remedies simultaneously.
NOTE: In Gizoni the issue of coverage had never been litigated to a conclusion with regard to the Longshore claim. There have been cases where an adjudication of status under the Longshore Act has precluded a subsequent Jones Act claim. We may not have seen the last word on the possible application of estoppel doctrines in this context.
NOTE: While the worker may pursue both remedies, in the final analysis when the smoke clears (or if you prefer, at the end of the day) he will receive only one award, either under the Longshore Act or the Jones Act. If it’s under the Jones Act as a seaman then the Longshore employer will receive the section 3(e) credit.
John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.