Adrift in the Harbor: Ambiguous-Amphibious Controversies and Seamen's Access to Workers' Compensation Benefits[dagger]

Article excerpt

Despite the best (or worst) efforts of the Supreme Court, maritime workers tend to find their way into state workers' compensation. To the untrained eye, this is unlikely to raise any suspicions, but anyone with any familiarity with admiralty law realizes that the federal government has assumed primary and potentially exclusive responsibility to govern injuries to this class of employee. Judge John R. Brown conveyed an accurate sense of the confusion that can result:

To the never ceasing riddle of the ambiguous amphibious worker with its tri-cornered intramural controversy between state-federal compensation and the ubiquitous possibility of a pseudo-seaman's claim and the mutations in the vast body of the law . . . this case adds a further wrinkle.1

Maritime workers may be generally divided into two categories: seamen and non-seamen. The former enjoy an array of rights under the maritime law, including a statutory cause of action against the employer in negligence under the Jones Act, strict-liability unseaworthiness against the vessel owner, and the right to maintenance and cure, a no-fault remedy designed to provide for the seaman during illness or injury. Congress has provided non-seamen with a distinct compensation regime under the Longshore and Harbor Workers' Compensation Act (LHWCA),2 which provides a right to federal workers' compensation for injuries sustained within the scope of employment, as well as the right to maintain a cause of action against the vessel under certain circumstances.3

This Note is concerned primarily with the issues raised by the recovery of state workers' compensation benefits by seamen, but the question necessarily implicates all local maritime workers. This category clearly includes longshoremen, but it also includes a class of workers who, though their employment is confined to the territorial waters of a single state, qualify as seamen under the maritime law. These borderline seamen tend to be employed in or around harbor facilities-the traditional point of intersection between the maritime law and its land-based counterparts.4 The plaintiff in Southwest Marine, Inc. v. Gizoni5 provides a useful example of a borderline seaman. Byron Gizoni was employed as a rigging foreman at a ship repair facility. He often worked on floating platforms, sometimes riding them as they were towed into place alongside ships. Gizoni worked in the territorial waters of a single state and initially recovered federal workers' compensation under the LHWCA.6 The Supreme Court nonetheless held that a genuine issue of fact existed on the question whether he was a seaman.7

The seaman undoubtedly presents a special case, but the federal-state boundary dispute is not confined to seamen's cases. And the currently troubled issues respecting seamen's access to state workers' compensation cannot be understood without a full consideration of the states' power to extend workers' compensation benefits to injuries occurring over navigable waters. The historical starting point is a famous question: When, if ever, can a longshoreman constitutionally recover under a state workers' compensation law for an injury occurring on navigable waters?

This question was first answered by the United States Supreme Court in Southern Pacific Co. v. Jensen,8 a five-to-four decision holding that the New York workers' compensation law could not constitutionally apply to the death of a longshoreman killed over navigable waters. Jensen is perhaps best known for Justice Holmes's statement in dissent that "[t]he common law is not a brooding omnipresence in the sky."9 But Jensen stands on two additional pillars of notoriety. Justice McReynolds's majority opinion established a preemption test that has at least nominally governed maritime-law preemption cases ever since. The Jensen rule provides that "no [state] law is valid if it contravenes the essential purpose expressed by an act of Congress, or works material prejudice to the characteristic features of the maritime law, or interferes with the proper harmony and uniformity of that law in its international and interstate relations. …