ISSUES RE CONCURRENT JURISDICTION OVER MARITIME WORKERS. WORKERS INJURY LAW & ADVOCACY GROUP November 5, Charles M. Davis 1

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1 ISSUES RE CONCURRENT JURISDICTION OVER MARITIME WORKERS WORKERS INJURY LAW & ADVOCACY GROUP November 5, 2010 Charles M. Davis 1 There are ree aspects relative to concurrent jurisiction of state an feeral remeies over maritime workers:! The issue of feeral supersession wheer states have legislative auority to prescribe employers liabilities an workers remeies for maritime workers at are inconsistent wi or supplement feeral general maritime law or feeral statutory remeies;! State workers compensation legislation overlapping wi e feeral Longshore & Harbor Workers Compensation Act (e LHWCA ), 33 U.S.C. 901 et seq.; an! Overlapping jurisiction an remeies of e LHWCA coverage an feeral seamen s remeies for some workers. My own practice was involve in e first issue for a number of years state attempts to apply state workers compensation legislation to seamen in e context of e long-lasting isputes wheer e Alaska Department of Workers Compensation ha jurisiction over fishermen generally an processors on at-sea factory processors specifically. That work was summarize in an article Feeral Supersession of State Workers' Compensation Acts as Applie to Jones Act Seamen, 8 UNIVERSITY OF SAN FRANCISCO MARITIME LAW JOURNAL 186 (1996). The California Court of Appeals i not see ings my way in CNA Ins. Co. v. Workers Comp. Appeals Boar, 58 Cal. App , 1998 AMC 534 (1997), which hel at ere was concurrent jurisiction between state workers compensation statutes an feeral maritime law wi respect to injury to a Jones Act seaman for claims against her employer for injuries at occurre uring employment on a ferry at operate between Los Angeles harbor an Catalina Islan, us, e P&I insurers of e vessel on which she was employe coul seek contribution from e employer s state workers compensation insurer, but e position I avocate in e University of San Francisco Maritime Law Journal article, at feeral seamen's remeies plus e feeral substantive law on employers' rights supersee application of state law, was aopte wi extensive citation to e Trient Seafoos Corp. v. Murray, 2000 AMC 288, 297 (Ak. Sup. Ct. 1999): 2 Murray was a Jones Act seaman... an base upon e same he receive a substantial jugment. Base on historical preceent, togeer wi recent opinions from e Unite States Supreme Court an statutory construction, state workers compensation statutes cannot apply to e injury of a Jones Act seaman when at injury occurs wiin e workers s cope of employment as a seaman. This is true, even if e vessel is engage in local trae.... Thus, uner e [supersession] octrine, e remeies in is matter remain 1 Charles Davis grauate from e Unite States Merchant Marine Acaemy in 1966 an was a eck officer on a variety of American flag merchant ships until grauation from e University of Washington School of Law in He has practice maritime law in e Seattle, Washington area since He is e auor of e Maritime Law Deskbook, publishe since 1988, now in its 8 eition. 2 Trient cites to Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 1980 AMC 1930 (1980), for e rule at maritime injuries are exclusively subject to feeral law an states may not assert workers compensation jurisiction over maritime injuries wiout infringing on e overriing feeral policy of uniform maritime law. -1-

2 exclusively feeral. The secon seam of potential jurisictional overlap is between state law an e LHWCA. Since e 1972 Amenments to e LHWCA (which extene LHWCA coverage to lan-base employment activities relating to ship builing, loaing, unloaing an repairing ships at occurre on lan which ajoine navigable waters, ere is concurrent jurisiction over workers to e uplan ege of navigable waters. Sun Ship, Inc. v. Pennsylvania. Alough it appeare well-settle at e LHWCA exclusively applie to traitional workers on e seawar sie of e line, recent ecisions have applie state law to claims of workers aboar vessels on navigable waters engage in employments clearly wiin LHWCA coverage. That rule of exclusive feeral jurisiction was not followe in Coppola v. Logistec Connecticut, Inc., 2007 AMC 2623 (Ct. 2007), which foun concurrent jurisiction between e LHWCA an e state workers compensation act on e grouns at alough e injury was to a longshoreman working aboar a vessel on state navigable waters, e employer an employee are locally base. Locally-base employers an employees are true of most steveoring an ship repair operations. Anoer anomalous ecision is In re Shippers Steveoring Co., 274 S.W (Tx. App. 2008), which hel at where survivors of a harborworker o not assert claims uner e LHWCA, ere is concurrent jurisiction between LHWCA remeies an state law for claims arising from e ea of e harborworker. As iscusse below, I believe Coppola is inconsistent wi e rule of a majority of jurisictions at hol at e LHWCA is e exclusive remey for workers injure on navigable waters while performing traitional maritime functions. The ir issue overlap between e LHWCA an seamen's remeies is limite to relatively few potential situations where ship repairers (an, potentially longshore workers) serve as seamen in e regular course of eir uties, such as was e case in Souwest Marine, Inc. v. Gizoni, 502 U.S. 81, 1992 AMC 305 (1991). Defining e Overlapping Borerlines of Concurrent Legislative Jurisiction. The issue of concurrent jurisiction over maritime employment injuries arises from a complicate history. Souern Pacific Co. v. Jensen, 244 U.S. 205, 61 L.E. 1086, 37 S.Ct. 524 (1917), applie e feeral interest of promoting a uniform maritime law (see U.S. Const., art. III, 2, which provies at feeral courts shall have juicial power over all Cases of amiralty an maritime Jurisiction ), as superseing states from applying workers' compensation statutes to maritime workers. The plaintiff in Jensen was a longshore worker kille in an accient on what was essentially a gangway for trucks use in ischarging a vessel. Gangways are consiere extensions of e ship, an accients on em are consiere on navigable waters. See, e.g., The Amiral Peoples, 295 U.S. 649, 1935 AMC 87 (1935). This line between lan an water became known as e Jensen line. See Director, Office of Workers' Compensation Programs v. Perini Nor River Associates, 459 U.S. 297 (1983). The effect of Jensen's holing was at longshoremen an harbor workers injure on lan were allowe to pursue a claim uner eir states workers compensation laws, but longshoremen an harbor workers injure on e seawar sie of e Jensen line were left wiout a source of compensation (oer an general maritime law negligence remeies which recognize a rule at an employer has no vicarious liability to an employee injure by e negligence of a fellow servant. ) See Nacirema Operating Co. v. Johnson, 396 U.S. 212 (1969); State Inustrial Comm'n v. Norenholt Corp., 259 U.S. 263 (1922). In response to Jensen s effect on longshore an harbor workers, Congress, on two occasions, -2-

3 enacte legislation at woul have allowe application of state workers' compensation remeies seawar of e Jensen line. See Wells v. Inustrial Comm'n, 277 Ill. App (1995). However, ese attempts were struck own as unlawful elegations to e states of congressional power. Washington v. W.C. Dawson & Co., 264 U.S. 219 (1924) ( Wiout oubt Congress has power to alter, amen, or revise e maritime law by statutes of general application emboying its will an jugment. This power, we ink, woul permit enactment of a general employers liability law or general provisions for compensating injure employees; but it may not be elegate to e several States ); Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920). The Supreme Court itself narrowe Jensen's reach. In Western Fuel Co. v. Garcia, 257 U.S. 233 (1921), an Grant Smi-Porter Ship Co. v. Rohe, 257 U.S. 469 (1922), e Court hel at state remeies are available to workers injure on navigable waters where e worker's employment is maritime an local in character. In Grant Smi-Porter Ship Co., e Court explaine at e claimant coul procee uner state law because neier his general employment nor his uties at e time of his injury ha any irect relation to navigation or commerce an, erefore, application of state law coul not materially affect any rules of e sea whose uniformity is essential. Western Fuel Co. foun at, in certain circumstances, application of state law will not work material prejuice to e characteristic features of e general maritime law, nor interfere wi e proper harmony an uniformity of at law in its international an interstate relations. Uner is line of cases, if e employment of an injure worker was etermine to have no irect relation to navigation or commerce, an e application of local law woul not materially affect e uniformity of maritime law, en e employment woul be characterize as maritime-but-local, an e State coul provie a compensation remey. Wells. But where an employee was injure on e navigable waters an his employment coul not be categorize as maritime but local, e employee was left wiout a compensation remey. Perini, 459 U.S. at 306. In 1927, Congress passe e LHWCA, establishing a feeral compensation system for workers exclue from coverage by Jensen. In essence, e LHWCA was a gap-filling measure for ose workers to whom Jensen mae coverage uner state law unavailable. Until e 1972 Amenments, e LHWCA covere only employees who were injure on actual navigable waters or any ry ock. See Nacirema, 396 U.S. at A maritime worker injure on lan was not affore any protection uner e LHWCA. McCoy v. Inustrial Comm'n, 335 Ill. App (2002). Because e LHWCA an e state workers' compensation schemes were mutually exclusive, a buren fell on injure maritime workers to etermine wheer e feeral or state compensation scheme applie to a particular factual situation. See Sun Ship, Inc. v. Pennsylvania. Injure workers were often compelle to make a jurisictional guess before filing a claim, an if e initial choice was wrong, he potentially coul be foreclose from obtaining relief. I. This resulte in courts fashioning e twilight zone octrine at allowe injure longshore an harbor workers an election of remeies where e jurisiction of eir injuries was not well 3 efine, where eier feeral maritime law or state law may be applicable. See, e.g., Sun Ship, Inc. 3 The twilight zone of concurrent jurisiction was recognize in Davis v. Dept. of Labor & Inustries, 317 U.S. 249 (1942), to avoi an employee being barre from compensation where he electe to pursue a remey uner eier a state workers compensation statute or a feeral remey uner e LHWCA or seamen s remeies, where e court or workers compensation boar etermine he ha electe e wrong remey. More-recent ecisions recognize a ifferent maritime but local rule to hol at not every worker who is injure while employe on navigable waters is preclue from recovery uner state workers compensation statutes: -3-

4 v. Pennsylvania; Calbeck v. Travelers Ins. Co., 370 U.S. 114, 1962 AMC 1413 (1962). Most of e cases are restricte to workmen s compensation claims, where e election is between Longshore an Harbor Workers Compensation Act remeies or remeies uner state workers compensation acts is inistinct because of questions wheer a worker s employment was maritime. Wi e 1972 Amenments to e LHWCA, as recognize by Sun Ship, a maritime worker coul seek compensation for injuries as follows:! Injuries on navigable waters to maritime employees whose employment was not local in nature are covere exclusively uner e LHWCA.! Maritime but local injuries on navigable waters coul be compensate eier uner e LHWCA or rough e state workers' compensation system.! Injuries to maritime workers occurring on lan coul be compensate eier uner e LHWCA or rough e state workers compensation system. The preceents consier four categories of maritime activities in ree overlapping jurisictional spheres relative to maritime an local regulation. In Sun Ship e Supreme Court hel at e 1972 amenments were intene to supplement, raer an supplant, state compensation law. As a result, e sphere of concurrent jurisiction expane so at states coul apply eir workers' compensation scheme to lan-base injuries falling wiin e LHWCA. Thus, since Davis v. Dept. of Labor & Inustries aopte a sphere of concurrent jurisiction uner e twilight zone eory, e regime of concurrent jurisiction has expane while e area of exclusive jurisiction uner e LHWCA has contracte. In e wake of Sun Ship, exclusive jurisiction uner e LHWCA is available only wi respect to injuries sustaine on navigable waters by maritime employees whose employment is not local in nature, i.e., for a worker who is injure upon navigable waters while performing a traitional maritime activity. McElheney v. Workers' Compensation Appeal Boar, 908 A.2 960, 964 (Pa. Commw. Ct. 2006), aff', 596 Pa. 48, 940 A (Pa. 2008); McCoy, 335 Ill. App. 3 at ; Wells v. Inustrial Comm'n. However, concurrent jurisiction uner bo e LHWCA an state workers compensation statutes exists for maritime-but-local injuries occurring on navigable waters, oubtful cases at fall wiin e twilight zone, an for lan-base injuries at meet e situs an status tests set for in e 1972 amenments to e LHWCA. See McElheney, 908 A.2 at 964; Wells, 277 Ill. App. 3 at ; 9 A. Larson & L. Larson, WORKER'S COMPENSATION LAW [4], at (2007). (a) Maritime activity, exclusive feeral jurisiction. Where e activity occurs on navigable waters, clearly involves maritime commerce, an is a traitional maritime activity, feeral jurisiction is exclusive. Souern Pacific Co. v. Jensen; Oil Workers v. Mobil Oil Corp., 426 U.S. 407 (1976). Thibaaux v. Atlantic Richfiel Co., 580 F.2 If e employment of an injure worker was etermine to have no irect relation to e navigation or commerce, an e application of local law [woul] not materially affect e uniformity of maritime law, en e employment woul be characterize as maritime but local, an e state coul provie a compensation remey. Director, OWCP v. Perini Nor River Assoc., 1983 AMC 609, 619 (1983), quoting Grant-Smi Porter Ship Co. v. Rhoe, r 257 U.S. 469, 477 (1922). See Peter v. Hess Oil Virgin Islans Corp., 903 F.2 935, 1990 AMC 2150 (3 Cir. 1990). -4-

5 841, 1979 AMC 1794 (5 Cir. 1978), hel: It [is] clear at an exclusive remey provision in a state workmen s compensation law cannot be applie when it will conflict wi maritime policy an will unermine substantive rights affore by feeral maritime law. See also Wellsville Term. Co. v. Workmen's Compensation Appeal Boar, 632 A , 534 Pa. 333 (1993). (b) Historical maritime but local octrine. Prior to e twilight zone cases, e Supreme Court recognize at some cases, alough maritime, are nevereless local, an erefore e principles of national uniformity o not apply, an state law governe exclusively. See, e.g., Western Fuel Co. v. Garcia; Grant-Smi-Porter Ship Co. v. Rohe. The maritime but local cases provie no option to e plaintiffs: eir only cause of action was uner state law, an ey may have lost state causes of action by prosecuting at eir risk what ey believe to be eir feeral maritime remeies. The octrine of maritime but local was abolishe in Davis v. Dept. of Labor & Inustries, which aopte e twilight zone octrine which provie to basically non-maritime workers performing work on maritime localities an election as to eir remeies. (c) Local activity, exclusive state jurisiction. Non-maritime activities, alough on navigable waters, such as lan-base construction, construction of briges, piers an oer structures at are consiere extensions of lan, are not subject to maritime jurisiction an state law applies. W.R. Grace & Co. v. Dept. of Labor & Inustries, 178 Wash. 4, 33 P (1934). () The moern maritime but local rule local concern. Where e matter is a local incient (e.g., ere is no irect relation to navigation or commerce), not requiring national uniformity, state statutes may be applie in e absence of a conflict wi feeral law. See, e.g., Millers Inem. Unerwriters v. Brau, 270 U.S. 59 (1926); Grant-Smi Porter v. Rohe; an Western Fuel Co. v. Garcia, which allowe application of state workers compensation legislation to a maritime but local activity. Pacific Merchant Shipping Ass n v. Aubry, 918 F , 1991 AMC 2797 (9 Cir. 1990), states e rule: States may supplement feeral amiralty law as applie to matters of local concern, so long as state law oes not actually conflict wi feeral law or interfere wi e uniform working of e maritime legal system. See also Thompson v. Shell Oil Co., 1988 AMC 485 (D. Or. 1985); Sunny Point Packing Co. v. Faigh, 63 F.2 921, 1933 AMC 600 (9 Cir. 1933). Garrisey v. Westshore Marina Associates, 2 Wn. App. 718, 469 P (1970), applie e local concern octrine to etermine at state workers compensation laws may be applie to a marina construction project on navigable waters, ruling at e nature of e worker s activities, i.e., at ey are not maritime, raer an e place where e accient occurs, etermines application of e octrine at local activities unconnecte wi commerce an navigation may be subject to local legislation. Brockington v. Certifie Electric Co., 903 F , 1991 AMC 586 (11 Cir. 1990), states at ere is no Constitutional requirement of uniformity for e sake of uniformity of law, an hel at a state s interests in having its workers compensation statute applie to a worker injure while a passenger on his employer s crew vessel which was transporting him to an islan worksite outweigh e -5-

6 interest in national uniformity of applying general maritime law, in e context of at local activity. Some jurisictions apply a bright-line test of wheer e worker was employe on navigable waters an was engage in traitional maritime employment. If so, e LHWCA is eir exclusive 4 remey. Oer states in etermining if e work is maritime but local focus on e relationship an contacts at e employer an employee have to e state in which e injury occurs. This appears to be an untenable tenet as, except for employers who have multiple employment sites, most shipbuilers an steveoring contractors coul be consiere in e latter category. Several recent cases have been anomalous on e issue wheer state law can apply to workers who clearly are wiin LHWCA coverage. The bounaries of e local concern exception were extene by e Connecticut Supreme Court in Coppola v. Logistec Connecticut, Inc., which foun concurrent jurisiction between e feeral Longshore & Harbor Workers Compensation Act (e LHWCA ), 33 U.S.C. 901, an e state workers compensation act on e grouns at alough e injury was to a longshoreman working aboar a vessel on state navigable waters, e employer an employee are locally base. In Norfolk Shipbuiling & Dryock Corp. v. Duke, 420 S.E.2 528, 14 Va. App (Va. App. 1992), e on-navigable-waters employment of a shipbuiler was hel to be maritime but local because bo e injure employee an e corporate employer were Virginia citizens, e work was performe in Virginia waters an resulte from a local employment contract, an e employer-employee relationship was a proper subject of state interest an control. See also Beverly v. Action Marine Services, Inc., 433 So (La. 1983); Allsou Steveoring Co. v. Wilson, 220 Ga. App. 205, 469 S.E (Ga. Ct. App. 1996). I believe Coppola, Duke an Beverly are inconsistent wi e rule of a majority of jurisictions at hol at e LHWCA is e exclusive remey for workers injure on navigable waters while performing traitional maritime functions. See, e.g., Lee v. Astoria Generating Co., 13 N.Y , 2010 AMC 206 (N.Y. App. 2009) (cert. pening) (state safety statutes an regulations are preempte wi respect to injuries occurring on a barge on navigable waters, as 33 U.S.C. 905(b) provies at an action in negligence may be brought against a vessel an at such remey shall be exclusive of all oer remeies against e vessel except remeies available uner is chapter ); Wellsville, 534 Pa. at 337, 632 A.2 at 1307 ( maritime employees who are performing traitionally maritime functions an are injure over navigable waters, uner Jensen, are constitutionally barre from recovering uner any state workmen's compensation law ); Iniana & Michigan Electric Co. v. Workers' Compensation Commissioner, 403 S.E.2 416, 184 W. Va. 673 (W. Va. 1991); McElheney (iscusses e rule of exclusive jurisiction); Talik v. Feeral Marine Terminals, Inc., 885 N.E , 2008 AMC 809 (Oh (e 33 U.S.C. 904 provision for exclusive remeies uner e LHWCA supersees application of state remeies for intentional torts of employers, incluing for LHWCA employees injure on shore); Donjon Marine Co. Limitation Proceeings, 2008 AMC 2045 (S.D. N.Y. 2008). Uphol v. Illinois Workers' Comp. Comm'n, 896 N.E.2 828, 385 Ill. App (2008), appears to state e appropriate status of e rule: The parameters of e twilight zone an e maritime but local octrine are not well efine. Alough ey are relate, ey are separate eories of concurrent jurisiction.... The twilight zone applies to areas in which ere are oubtful an ifficult factual questions. Davis, 317 U.S. at 257; see 4 See, e.g., Wellsville, 534 Pa. at 337, 632 A.2 at 1307: maritime employees who are performing traitionally maritime functions an are injure over navigable waters, uner Jensen, are constitutionally barre from recovering uner any state workmen's compensation law ; Iniana & Michigan Electric Co. v. Workers' Compensation Commissioner, 403 S.E.2 416, 184 W. Va. 673 (W. Va. 1991). -6-

7 also Wells, 277 Ill. App. 3 at 383; Garrisey v. Westshore Marina Associates, 2 Wn. App. 718, 469 P.2 590, 594 (1970). We have efine e bouns of e twilight zone by exclusion, stating at e octrine oes not apply to employees who are engage in traitional maritime employment an are injure over navigable waters. Wells, 277 Ill. App. 3 at 383. In contrast, it has been hel at a claim falls wiin e maritime but local octrine if e worker's injury occurs upon e navigable waters of e Unite States, e injure worker's employment has no irect connection to navigation or commerce, an e application of local law woul not materially affect e uniformity of maritime law. See Perini, 459 U.S. at 306. In is case, we fin at claimant's employment oes not fall wiin eier e "twilight zone" octrine or e "maritime but local" octrine. This claim oes not fall wiin e twilight zone because is is not a oubtful case.... As explaine above, if an employee is injure on navigable waters while engage in a traitional maritime activity, jurisiction uner e LHWCA is exclusive. This is such a case. At e time of his injury, claimant was engage in ship repair upon e navigable waters of e Unite States. Ship repair is a traitional maritime activity.... Thus, claimant oes not fall wiin e twilight zone. See also Flowers [ v. Travelers Ins. Co., 258 F.2 220, 222 (5 Cir. 1958)] (noting, [B]o before an since e time of Davis, e oing of repair work on an existing vessel has been treate as so clearly maritime in nature at attempte application of State compensation laws woul collie wi at essential uniformity which was e very brea of Jensen ). 896 N.E (e) Maritime but local twilight zone. In cases in e twilight zone when it cannot be ascertaine at e case falls wiin eier exclusive maritime jurisiction or exclusive state jurisiction it may be e plaintiff s election wheer he pursues remeies uner e applicable state workers compensation act, e feeral Longshore an Harbor Workers Compensation Act. Davis v. Dept. of Labor & Inustries; Garrisey v. Westshore Marine Associates, 2 Wn. App. 718, 469 P (1970). Hahn v. Ross Islan San & Gravel Co., 358 U.S. 272, 1959 AMC 570 (per curium 1959), hel at, as to cases wiin e twilight zone, state-create tort remeies coul be available to a worker potentially wiin coverage of e LHWCA. The new twilight zone was greatly enlarge in 1972 when Congress extene coverage of e LHWCA to lan-base employment activities relative to shipbuiling, shipbreaking, an e loaing, unloaing an repairing of ships at occur on lan areas ajoining navigable waters use by e employer in such activities. Sun Ship, Inc. v. Pennsylvania, in e context of maritime workers performing eir uties on shore, rule at feeral jurisiction extene to e new lan-base employments now covere by e LHWCA was concurrent wi state jurisiction to legislate workers compensation schemes for e same shoresie employments. Sun Ship relaxe e election of remeies rule, which hel at a twilight zone worker woul be boun by his election if it was etermine at he was entitle to e remey he electe, see, e.g., Davis an Garrisey, an hel at, in twilight zone cases, LHWCA an state remeies are complementary raer an exclusive, an a prior awar uner state law woul be creite against a LHWCA awar. See also, Herb s Weling, Inc. v. Gray, 470 U.S. 414, 1985 AMC 1700 (1985). Sun Ship can be construe as recognizing e rule of Souern Pacific Co. v. Jensen at state compensation laws cannot constitutionally apply to injuries to maritime workers who are injure in e course of eir uties on or over navigable waters, but at ere is a zone of complementary jurisiction wi respect to ship-builing, repairing, an longshore activities performe on shore wiin e extene jurisiction of e LHWCA. (f) Twilight Zone application to Jones Act seamen. -7-

8 Alough cases have etermine at ere is concurrent state an feeral maritime jurisiction wi respect to injuries suffere by miscellaneous harbor workers an construction workers working on or over navigable waters at e time of injury, it is not clear wheer states ever properly have legislative jurisiction to exten state worker s compensation remeies to Jones Act seamen engage in local voyages. Amiralty jurisiction oes not epen on wheer a vessel is engage in interstate or foreign commerce an is not limite to e transportation of goos an passengers in interstate or foreign commerce: tort jurisiction is base on e situs of tort being on navigable waters an e activity having some nexus to traitional maritime activity. See, e.g., Foremost Ins. Co. v. Richarson, 457 U.S. 668, 676, 1982 AMC 2253 (1982); Lonon Guarantee & Accient Co., Lt. v. Inustrial Accient Commission of e State of California, 279 U.S. 109, 1929 AMC 495 (1929). Thus ere is feeral amiralty jurisiction an Jones Act application to persons meeting e tests of seamen even if e vessels to which ey are assigne function solely on local voyage so long as ey are on navigable waters). That rule notwistaning, ere are several cases in which Alaska courts have etermine at ere is concurrent state jurisiction wi respect to claims of seamen where eir employment was on a local voyage. Alaska legislation makes e Alaska workers compensation act applicable to processing workers on seafoo processing vessels. A.S (5) an AS (4), expressly inclue processing workers on floating fish processing vessels who o not operate fishing gear or engage in activities relate to navigation or operation of e vessel. As it appears clear at such workers woul be consiere seamen uner e McDermott Int l, Inc. v. Wilaner, 498 U.S. 112, 1991 AMC 913 (1991) broa efinition of oing e ship s work, if e vessel is in navigation, it appears at such legislation may be unconstitutional. The Alaska Workers Compensation Boar rule at alough a processing worker who serve on a floating processor which processe seafoos in state territorial waters was a seaman, ere was sufficient state interest to justify extension of e state workers compensation statute to a claim for injuries, an at his activities were of such local interest at local law coul be applie. Santamaria v. Arctic Ent., Lt., AWCB D & O Nos , , , 1987 WL (1987). Corova Fish & Col Storage Co. v. Estes, 370 P (Ak. 1962), hel Alaska workers compensation legislation to be applicable to a commercial crab fisherman who was moving crab pots aboar e vessel while it was moore to a pier. Santamaria appears to have ignore at e local concern rule is restricte to situations not involving a irect relationship to navigation or commerce or conflicts wi a rule of feeral maritime law. Estes clearly involve a vessel at was in navigation, alough it was moore at e time of e injury so ere is a question wheer e seaman s activities at e time of e accient involve navigation or commerce. As bo tests woul apply to claims involving seamen serving on even localvoyage vessels, it appears at e Santamaria an Estes ecisions are not supporte by law. Trient Seafoos Corp. v. Murray hel at a processor employee on a seafoo processing vessel which normally i its processing while at anchor in Alaska waters was a seaman an, because of at status, application of e Alaska workers compensation act to his injuries was supersee by feeral seamen s remeies. The claimant initially ha receive workers compensation benefits uner e Alaska statute an en pursue his seaman s remeies in feeral court rough trial, which resulte in a etermination at he was a Jones Act seaman an an awar of amages. He subsequently applie to e workers compensation boar for an ajustment of his claim an e state agency conclue it ha jurisiction over e claim, concurrent wi feeral jurisiction to provie seamen s remeies, uner e maritime but local exception. On appeal of e agency s ecision, e superior court limite application of e maritime but local octrine to nonseamen. Relying on Miles an Yamaha for e rule at e Jones Act establishes a uniform -8-

9 system of tort law an e interests of national uniformity require at seamen s remeies be uniformly applie, e court state: Base on historical preceent, togeer wi recent opinions from e Unite States Supreme Court an statutory construction, state workers compensation statutes cannot apply to e injury of a Jones Act seaman when at injury occurs wiin e worker s scope of employment as a seaman. This is true, even if e vessel is engage in local trae or, as in e present case, where e vessel is anchore at various locations offshore for e purpose of fish processing.... (g) Election of remeies in e twilight zone : res juicata an collateral estoppel. The fact at a claimant may have receive benefits uner a state workers compensation program oes not, in itself, preclue assertation of Jones Act rights an prosecution of oer seamen s remeies. Calbeck v. Travelers Ins. Co. The octrine of election of remeies oes not apply ue to e claimant merely making claim or bringing suit for one remey of e oer, or even accepting benefits of one remey or e oer: e issue is wheer ere has been an ajuication of seaman s status an/or amiralty jurisiction in a prior proceeing at brings into application e octrines of res juicata or collateral estoppel. Mooney v. City of New York, 219 F.3 123, 2001 n AMC 38 (2 Cir. 2000), hel at receipt by a worker who potentially was a seaman of state workers compensation pursuant to a formal awar was not necessarily a waiver of seamen s remeies. Rohrbacker v. Jackson & Jackson, Inc., 1992 AMC 101 (E.D. La. 1991), followe e general rule an hel at an injure worker who is unsure of his status may pursue mutually exclusive remeies uner state compensation statutes an seamen s remeies wiout being subject to an election of remeies efense. Sharp v. Johnson Broers Corp., 973 F.2 423, 1995 AMC 912 [DRO] (5 Cir. 1992), foun at a claimant mae a bining election of remeies an his Jones Act an General Maritime Law action was barre where he accepte compensation benefits which were subsequently formally approve by an aministrative law juge in a consent orer. The octrine of res juicata was applie in Kalesnick v. Seacoast Ocean Services, Inc., 866 F. Supp. 36, 1995 AMC 961 (D. Me. 199), to etermine at where a plaintiff ha prosecute a conteste workers compensation claim an ha obtaine approval of a settlement agreement for permanent isability uner a state workers compensation statute, e plaintiff coul not subsequently claim status as a Jones Act seaman. Conflict Between Exclusive Remey Provisions of State Workers Compensation Statutes an General Maritime Law Actions Against Employers The issue of feeral supersession of exclusivity provisions of state workers compensation statutes wi respect to shoresie employees injure while temporarily aboar vessels operate by eir employers as invitees or passengers has been subject to conflicting ecisions. Brockington v. Certifie Electric hel e transportation of a workman being transporte by a small boat to an islan construction site was a local incient, hence e exclusive remey provision of e state workers compensation statute barre recovery uner e general maritime law where a lan-base employee was injure while temporarily a guest or passenger on boar a vessel operate by e employer. Brockington, interestingly, state at alough compensation for a ea on navigable waters woul be governe by e general maritime law remey, compensation for an injury was subject to e exclusivity provisions of e state workers compensation statute. Brockington may conflict wi -9-

10 Fif an Nin circuit preceents. In Chan v. Society Expeitions, Inc., 39 F , 1994 AMC 2642 (9 Cir. 1994), a shore-base employee was injure while a passenger on a cruise ship operate by his employer. He applie for an receive workers compensation benefits from e state of Washington an en brought a negligence claim against his employer uner e general maritime law. The istrict court ismisse e claim because of e exclusive remey provision in Washington's workers' compensation law. The Nin Circuit reverse, holing at e plaintiff ha a feeral maritime right to sue [his employer]. Green v. Vermilion Corp., 144 F.3 332, 1998 AMC 2328 (5 Cir. 1998), involve claims for injuries of a plaintiff employe as a cook an watchman at a uck hunting camp, who suffere an injury when he slippe while unloaing supplies from e small ferry at serve e camp. He mae claim uner bo e LHWCA an a general maritime law for negligence. Alough he i not seek state workers' compensation benefits, e parties agree at he fell squarely wiin e purview of at system, incluing its exclusive remey provision. The istrict court foun at e plaintiff was not covere by e LHWCA uner e camp an recreational operation exclusion, 46 USC 902(3)(B), an at e state workers' compensation statute barre e claim for general maritime negligence against e plaintiff's employer. The Fif Circuit reverse e latter holing, ruling at e workers' compensation system coul not bar e general maritime negligence claim, stating at an action for negligence has long been a vestige of general maritime law, subjecting it to e ebbs an flows of state legislation woul isrupt e essential features of amiralty law. This issue recently was iscusse in Morrow v. Marinemax, 2010 U.S. Dist. LEXIS (D. N.J. 2010), which also hel at state exclusivity states are preempte by maritime tort remeies. OCSLA an State Law. The Outer Continental Shelf Lans Act, 43 U.S.C. 1331, et seq., in essence treats fixe oil an gas exploration an prouction activities on e seabe or attache to e seabe of e Outer Continental Shelf platforms as feeral enclaves, subject to uplan state law so far as some purposes, but extens e LHWCA to employee injury an ea claims. 43 U.S.C. 1333(b). The OCSLA applies to any injury occurring as e result of operations conucte on e outer Continental Shelf for e purpose of exploring for, eveloping, removing, or transporting by pipeline e natural resources, or involving rights to e natural resources, of e subsoil an seabe of e outer Continental Shelf. I. The Outer Continental Shelf is eeme to be all submerge lans lying seawar an outsie of e area of lans benea navigable waters, e.g., submerge lans lying outsie e territorial jurisiction of e states. 1331(a). State jurisiction over offshore lans generally extens ree miles from e coast line, ough in certain cases it may exten furer. 1301(a)(2). A split of auority between circuits exists on wheer outer continental shelf workers who are injure while temporarily performing uties ashore are covere by e OCSLA an e LHWCA. Mills v. Director, OWCP, 877 F (5 Cir. 1989), applie a situs-of-injury requirement for OCSLA claims, requiring at e injury actually occurre on an outer continental shelf platform or on e waters above e outer continental shelf. Curtis v. Schlumberger Offshore r Service, Inc., 849 F (3 Cir. 1988), rejecte e situs-of-injury test an hel at a claimant nee only satisfy a but for test in establishing at e injury occurre as e result of operations on e outer continental shelf. Vallaoli v. Pac. Operations Offshore, LLP, 604 F (9 Cir. 2010), aopte e Curtis test, of fining OCSLA coverage for injuries which occurre as a result of operations conucte on e outer Continental Shelf for e purpose of exploring for, eveloping, removing, or transporting by pipeline e natural resources, or involving rights to e natural -10-

11 resources, of e subsoil an seabe of e outer Continental Shelf, irrespective at e actual injury occurre on lan or in state waters. -11-