Southwest Marine, Inc. v Gizoni – Oral Argument – October 15, 1991

Media for Southwest Marine, Inc. v Gizoni

Audio Transcription for Opinion Announcement – December 04, 1991 in Southwest Marine, Inc. v Gizoni

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William H. Rehnquist:

We’ll hear argument now in No. 90-584, Southwest Marine, Inc., v. Bryon Gizoni.

Mr. Tichy.

George J. Tichy, II:

Thank you, Mr. Chief Justice, and may it please the Court:

This case presents the issue whether land-based maritime employees, specifically included in the coverage of the Longshore and Harbor Workers Compensation Act, nonetheless are entitled to go to a jury trial to determine their alleged status as Jones Act seamen.

The facts of this case are very straightforward, as it comes to this Court after reversal by the Ninth Circuit Court of Appeals of a summary judgment issued by the District Court of the Southern District of California.

The respondent, Bryon Gizoni, is a rigger and rigger foreman for petitioner, our client, Southwest Marine.

One day while working on a floating platform, a platform commonly used for ship repair work and devoid of navigational qualities, Gizoni was injured when his foot went through a hole in the platform.

Typical of any ship repair person, Gizoni filed for an obtained Longshore Act benefits.

In fact, he obtained in excess of [ = $ 18,000] worth of benefits, which he then used as he went out forward, not only to take care of his medical needs, but we assume, to bring a Jones Act claim, seeking to get an even bigger recovery by ignoring the administrative process and invoking the full processes of the Federal court system, including the use of a jury to determine his alleged seaman status and his Jones Act claim.

What makes Gizoni’s Jones Act claim peculiar and bizarre is that he is land based.

He works strictly in San Diego Harbor and, by stipulation, is a ship repairman.

Yet with the conviction that just about any ship repairman can also make out a Jones Act claim, regardless of congressional intent–

John Paul Stevens:

May I ask you a question, just to be sure I get something straight in my mind?

George J. Tichy, II:

–Yes, you certainly can.

John Paul Stevens:

If he wins the Jones Act claim, assume you lose, just for purposes of argument, will you be entitled to a credit for the amount paid on the Longshoreman Act claim?

George J. Tichy, II:

That is correct.

John Paul Stevens:

So is there any risk of double recovery in this case?

That is what I just want to make sure I–

George J. Tichy, II:

There is no risk of double recovery.

However, the problem is that the right to have the offset is judicially created.

It is not provided in the Jones Act, and as a result, unfortunately, of what has occurred over the years with regard to the ambiguity as to whether or not one is in fact a Jones Act seaperson.

In fact, there is language in the Longshore Act, which is specifically section 3(e), which provides for a credit in the event one mistakenly gets payments under the Jones Act or some other State compensation form of coverage.

Essentially what has happened here, Justice Stevens and members of the Court is this: in 1927, when the Longshore Act was passed, this was the first time in which Congress had an opportunity to deal with the void which had been created in the law.

That is to say, to deal with the stevedores and longshoring people.

And over the years what happened unfortunately was that there was a recognition through the situs test, as opposed to the status test which was developed in 1972, that essentially what would happen is that a person could walk in or out of coverage under the Jones Act.

In fact, this Court stretched to the ultimate before the passage of the Longshore Act to try and bring stevedores within the Jones Act, simply to avoid this problem of coverage.

But what happened was the Congress took the baton and started roll… running with it, if you will, and determined essentially, that it would set forth a law in which it could provide coverage for those who were injured upon navigational waters who were nonsea people and additionally, by the passage of the 1972 amendments, in essence, were able to cover those who were on the adjoining areas.

Sandra Day O’Connor:

–Well, Mr. Tichy, the plain language of the Longshoremen and Harbor Workers Act excludes from coverage any repairman who is a member of a crew of any vessel, and it seems to me that your position just reads that right out of the statute.

George J. Tichy, II:

To the contrary, Justice O’Connor.

You know, I wrestled with the arguments that were raised by the Solicitor, as well as by Mr. Gizoni’s counsel, and I guess the way that you have to deal with the issue that you raise is you have to go back to the statute and you look at the language which Congress used.

George J. Tichy, II:

Congress divided those who were maritime employees into two types, and the unique language they used was shall be included, and shall not be included.

We are talking about fundamental Aristotelian logic.

They didn’t use words other than nonincluded.

They said, included are A, B, C, and D… which by the way, in this case includes harbor workers, which are a specifically designed category of maritime employee.

And then Congress went one step further.

Congress said, look, we are not simply covering harbor workers.

We are going to specifically cover those who are ship repair persons, and so they specifically included that.

By definition, Congress having provided an inclusion–

Sandra Day O’Connor:

Can’t a ship repair person be a member of the crew of a vessel?

Isn’t that possible?

George J. Tichy, II:

–No.

And the reason for that is, it goes back to congressional intent in this particular situation.

As you so vividly wrote in your Wilander decision, a master or member of a crew of a vessel is a Jones Act seaperson.

That is a specifically, not included category.

What has happened here is, and the issues comes to you because of the confusion in the courts.

What has happened is–

William H. Rehnquist:

The statute uses the term “seaman”, doesn’t it, not member of a crew or–

George J. Tichy, II:

–Not the Longshore Act.

William H. Rehnquist:

–Not the Longshore Act, okay.

George J. Tichy, II:

No, it uses a term “master” or “member” of a crew of a vessel.

William H. Rehnquist:

But the Jones Act uses the term “seaman”, does it not?

George J. Tichy, II:

That is correct, and–

William H. Rehnquist:

Where does the term, seaperson, come from in the statute?

George J. Tichy, II:

–Your Honor, I suppose that is my introduction.

It is seaman, Your Honor.

I recognize the act, when it was amended in 1984, however, eliminated the term “longshoreman” and used the term “Longshore and Harbor Workers Act”, and I suspect that the Congress very well may make that sort of change–

William H. Rehnquist:

If it does, you should refer to it accordingly.

George J. Tichy, II:

–Thank you, Your Honor, and I certainly will.

In any event, Justice O’Connor, the term

“a master and a member of a crew. “

George J. Tichy, II:

as you pointed out is the equivalent of a Jones Act seaman.

And as such, was specifically excluded from the Longshore Act, but as the language was used, and specifically in Section 2(3), 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.

It is unequivocally stipulated in this particular case, that Mr. Gizoni is in fact a ship repairman.

John Paul Stevens:

But you, of course go on.

It says,

“but does not include a master or member of the crew of any vessel. “

So you are suggesting, I gather, that a person could not be a ship repairman on board an ocean liner or something like that?

Couldn’t do it.

George J. Tichy, II:

There are situations where an individual is land based, which is the other pivot in the Wilander decision–

John Paul Stevens:

No, but the exception talks about people who are vessels.

George J. Tichy, II:

–That’s right.

If somebody were attached to a vessel on the high seas, out there as you will–

John Paul Stevens:

What about a vessel–

George J. Tichy, II:

–for weeks, and was taking care of that vessel out there, outside the 3-mile limit, that individual would probably be a master or member of the crew.

John Paul Stevens:

–What about a vessel within the 3-mile limit or within the harbor itself?

George J. Tichy, II:

I would submit to you, Justice Stevens, that the use of the term, harbor worker was intended to–

John Paul Stevens:

No, I am asking about the use of the term, vessel.

George J. Tichy, II:

–Yes.

John Paul Stevens:

Aren’t there vessels that do not leave the harbor?

George J. Tichy, II:

Indeed, there are vessels that do not leave the harbor.

John Paul Stevens:

And a person who is a member of a crew of such a vessel is not a ship repairman within the meaning of the statute, even if he spends all his time doing ship repair work.

Isn’t that right?

George J. Tichy, II:

I would submit to you that it was the 1972 amendments that clarified that if that individual worked exclusively within the harbor, that that individual would in fact be covered by the Longshore Act.

The underlying–

John Paul Stevens:

He would not be on a vessel, even though the vessel never left the harbor.

Because he was in the harbor, even though he was on a floating vessel, he would not be on a vessel, because the vessel stayed in the harbor.

Is that your position?

George J. Tichy, II:

–No.

What I am saying is that for purposes of the Longshore Act–

John Paul Stevens:

Right.

George J. Tichy, II:

–that the 1972 amendments made it clear that there are those individuals who work exclusively within the harbor, exclusively, if you will, within the break-water, who are not subject to the type of perils of the sea which a normal seaman is; therefore, Congress used the term “harbor worker” to specifically indicate a form of inclusion.

I would point out to you, that is not the issue that we have here because this is a ship repair person who is part of a shipyard who is repairing something essentially next to the shore.

But the use of the term “harbor worker”, I would submit to you, is intended to necessarily exclude from the inclusion of a master or a member of a crew of a vessel, those people who work exclusively within the confines of a harbor because… there are a number of reasons.

One is, Congress created the Longshore Act with the object of having a no-fault, uniform system of compensation.

Secondly, Congress in doing this, recognized that those people who are normally covered are land based.

Those who work within the harbor areas–

John Paul Stevens:

But the hypothesis, we are talking about someone who is not land based.

You are talking about somebody who is based on a vessel that floats around in a harbor.

You say we should treat him as though he were land based because of the term used… “harbor worker”.

George J. Tichy, II:

–I would submit that that is in fact the case, and I cannot imagine a situation in the real world where an individual is assigned to a vessel that operates strictly within a harbor who is not land based.

And in fact, I think that really is a pivot in the Wilander decision, the recognition which the Court came to, essentially, which was that if you are talking about somebody who was land based, it was the intent of Congress to provide them with this uniform method of compensation this no-fault method of compensation to avoid multiple awards, to avoid the multiplicity of litigation, to avoid the problem that you alluded to about the possibility of inconsistent results or the necessity to achieve–

John Paul Stevens:

Let me ask you this question.

Maybe we have got the wrong case here, but supposing you have a case in which there are good arguments on both sides of the question of whether a person is under the statute or under the Jones Act?

There must be some borderline cases.

George J. Tichy, II:

–Sure.

John Paul Stevens:

How are they to be resolved?

George J. Tichy, II:

Very simply, and I am glad you asked the question.

This Court, in dealing with other administrative types of procedures, and in particular, we cite the Court to the National Labor Relations Act type of situations, where Congress has established an administrative agency with expertise in the particular area which is involved, what this Court has said in the past is where someone is arguably covered by that administrative act, where an agency such as the OWCP has administrative expertise, the obligation on the party asserting the claim, which is an arguable claim, must first go through that administrative agency before attempting to burden the courts in any manner, shape, or form with the type of litigation which is involved here.

What you have here is a mirror image of the type of result which I think was intended–

John Paul Stevens:

Then supposing an employee files a claim under the Harbor Workers Act because he is not really sure–

George J. Tichy, II:

–Yes.

John Paul Stevens:

–and the employer goes ahead and acknowledges the claim and there is adjudication of the issue, does that mean he is estopped from saying well, I really think I am entitled to Jones Act benefits, but in order to protect myself, I filed this claim as well.

Is he estopped from bringing a Jones Act claim?

What is the employee supposed to do?

George J. Tichy, II:

If the matter were adjudicated, I would say yes.

That is, if there was a finding of fact–

John Paul Stevens:

Supposing it is not adjudicated.

Supposing the employer just goes ahead and starts–

George J. Tichy, II:

–Voluntarily provided the payments, as he did here.

And let’s assume the worst-case scenario, the employer made a mistake and everybody made a mistake because they filed under the wrong act.

George J. Tichy, II:

That, under the hypothesis that I have submitted, would not preclude him from making a Jones Act claim.

That is not the fact however of this case.

Byron R. White:

–Yes, but where would he go?

George J. Tichy, II:

If the individual made a total error, the employer made a total error, provided the benefits, then he would have to go court, certainly.

Byron R. White:

I thought you said you… I thought you said you wanted the administrative agency to decide this case.

George J. Tichy, II:

I do.

I took the very worst-case scenario, Justice White, which was that it was blatantly obvious that it was a mistake, and those where it is arguably covered by the Longshore Act–

Byron R. White:

But what if it is just close?

What if it is just close, and the employer goes ahead and pays it.

It isn’t adjudicated–

George J. Tichy, II:

–That’s right–

Byron R. White:

–Well–

George J. Tichy, II:

–Then they should go to the administrative agency, Justice White.

If it is arguably covered by the Longshore Act, then the administrative agency with the administrative expertise should make that determination in the first instance.

Byron R. White:

–Then the employee who has been getting benefits because the employer has been paying them–

George J. Tichy, II:

Yes–

Byron R. White:

–If he now wants to go to the Jones Act, he has to go to the administrative agency and say, by the way, I am really not covered by the Longshoremen Act?

George J. Tichy, II:

–He needs to get a determination from that agency, if it is arguable that he is covered, that is what he should do.

That is exactly what has happened in the litigation involving the National Labor Relations Act.

Byron R. White:

So he goes up, wants, in a sense, a declaratory judgment from the agency.

George J. Tichy, II:

That is the equivalent of it, but in this Court’s Garmon decisions, essentially what the Court has said is, we’ve created the law… Congress created the law which establishes coverage, and that particular coverage is articulated on the face of the statute.

If you arguably come within that, it was the intent of Congress to have that administrative agency assume the burden of determining coverage.

William H. Rehnquist:

When did this requirement emerge, in the enactment of the 1972 amendments?

George J. Tichy, II:

I believe so, because prior to that–

William H. Rehnquist:

So before that, there was no such requirement.

George J. Tichy, II:

–What happened was, prior to ’72 there was only a situs test and therefore, what was happening was that an individual had to establish, in order to obtain coverage, that he was not a seaman under the Jones Act.

That’s what he had to establish, and that his injury occurred upon navigable waters.

What happened in 1972 is that Congress established a status test and actually affirmatively designed for the first time descriptions of categories of covered people.

William H. Rehnquist:

And you say, the Congress, I suppose by implication, since they didn’t do it expressly, also established kind of an administrative exhaustion requirement?

George J. Tichy, II:

Yes, yes.

George J. Tichy, II:

By the same parallel analysis which was utilized in the National Labor Relations Act setting, there was, I would point out to you, essentially, the same type of approach which was judicially created, recognition of, if you will, the administrative expertise side of it and a recognition that it was the intent of Congress not to allow the courts or create further burdens for the courts in the administration of justice, and present to juries, if you will, issues for which other people had been specifically trained and developed the type of expertise which is relevant to the determination of rights.

William H. Rehnquist:

Is there anything in the 1972 amendments or their legislative… that suggests Congress intended to effect the traditional Jones Act procedures, which you start in court, I take it, in the Jones Act.

George J. Tichy, II:

Yes, that is correct.

And specific reference to your question, what we see in terms of the legislative history is the development in ’72 of a status test.

What had happened historically, looking at the–

William H. Rehnquist:

My question was: Is there any indication in that legislative history that Congress wanted to depart from traditional Jones Act procedures, where you could go directly into court if you have a Jones Act claim?

George J. Tichy, II:

–I believe the answer to that and perhaps I am not stating it as clearly as I should, is by adopting the status requirement, Congress attempted to delineate those people who must absolutely go to the OWCP for their relief, because there was a tradeoff.

Employers now have to pay substantially greater benefits under that Longshore Act and the employees, of course, get greater benefits as a result.

And it is a no-fault system which Congress created.

William H. Rehnquist:

So that even if a claimant is saying, I don’t claim under that system, I claim under the Jones Act, the claimant must still go through the administrative procedure for the Harbor Workers Act?

George J. Tichy, II:

That’s correct, if he is a ship repair… ship repairman, such as Mr. Gizoni.

Absolutely, absolutely.

Any other system would be a catastrophe for the courts as well as the administrative agencies because of the possibility of inconsistency of results.

Also, it would be inconsistent with Congress’ intent, because this is what would happen.

If the stevedoring company or the ship repair company saw that they would have to face two types of litigation, they would controvert on the Longshore Act, instead of giving the immediate and speedy payments which Congress intended, because they would want a determination of their judicial obligations or their statutory obligations before they would pay.

So the net result would be, if Gizoni prevails here, the very intent of all these laws, that is to provide benefits to people who are injured, would in fact be delayed.

The beauty of the Longshore Act is they get the payments immediately.

They get them when they have the need.

Employers are encouraged to make those payments as quickly and rapidly as they can in order to meet the needs of those particular people.

Antonin Scalia:

I am not sure I understand.

Wouldn’t the agency determination, of course, be reviewable in the courts?

George J. Tichy, II:

It would.

Antonin Scalia:

So these things are going to be decided by the courts eventually, aren’t they?

George J. Tichy, II:

Except, it would be reviewable in the same way that the National Labor Relations Board determination is reviewable.

Since the administrative law judge would in fact be a finder of fact, that would be reviewable only if there were some… there were not substantial evidence to support the result.

Antonin Scalia:

Is that a question of… whether you are a seaman under the statute, is a question of fact rather than law?

I thought that the reason we are here is that this is a question of law.

George J. Tichy, II:

In the case of somebody who is specifically enumerated within the included categories of 2(3), it is as a matter of law.

Anybody who is within those is covered.

There are however potentially maritime employees who are not within the included categories but who were intended for coverage.

George J. Tichy, II:

Those do involve issues of fact and to that extent, a factual determination may have to be made by the administrative agency.

But to the extent that there would be any review of the administrative agency, to the extent that there are factual issues, it would be on a substantial evidence test, as indeed is the case with the National Labor Relations Act.

And as to issues of law, that would be a matter for the court to determine on its own.

Antonin Scalia:

You say, as is the case with the National Labor Relations Act.

How does it come up in the context of the National Labor Relations Act?

George J. Tichy, II:

In the Garmon case, essentially what happened was that an employer sued a union for picketing, which was arguably protected under the National Labor Relations Act.

And what happened was the State courts of California twice said, look, you make out a claim.

We are willing to listen to what you have to say.

You can present it to a jury and you can get a determination.

What the Supreme Court said was that you have set forth facts which are arguably within the coverage of the National Labor Relations Act.

Antonin Scalia:

Sure–

George J. Tichy, II:

Gentlemen, you must go to the administrative agency, the NLRB.

Antonin Scalia:

–It isn’t a matter of having to go to the administrative agency, not just a matter of that.

It is a matter of having to go to the Feds.

I mean, you have a question of preemption and we want the labor board to have the first determination rather than what could be a State court for the violation of law.

That is a big difference.

In this case, it is going to be a Federal agency in either case, either an administrative agency or a court.

George J. Tichy, II:

Yes.

It just so happened that Garmon arose in the context of a State action.

But I would point out to you that that same type–

Antonin Scalia:

No, but that is the crucial distinction.

The issue is always going to be whether State law is preempted by Federal law, and I can see why there is strong reason to have the labor board have the first say on that.

But here, it is a question of Federal law.

It is either Federal maritime law or it’s the Longshore Act.

George J. Tichy, II:

–Let me point out one thing if I may.

It is just happenstance that Garmon arose out of a State court action.

You know, the Anheuser Busch case, I believe, arose out of Federal action.

I think that involved, if you will, alleged antitrust violations which were perceived to be within the coverage of the National Labor Relations Act.

So the fact that the action, just by happenstance, was brought in the State court as opposed to the Federal court wouldn’t any less make the National Labor Relations Act dispositive, and the same parity of analysis would apply in this case.

Antonin Scalia:

Do you know of any other instance like this where the issue is which of two Federal schemes would apply and where you must go to the administrative agency first?

George J. Tichy, II:

Sure, Title VII of the EEOC.

Antonin Scalia:

No, no.

Where it says so, yes–

George J. Tichy, II:

Yes.

Antonin Scalia:

–But I mean where it doesn’t say anything and where we have created a… by judicial determination, the rule that you have to go to the administrative agency first.

I am trying to think of a parallel–

George J. Tichy, II:

Sure.

Antonin Scalia:

–And I offhand can’t think of any.

George J. Tichy, II:

If I can think of one, when I come back on rebuttal, I will let you know.

Okay.

George J. Tichy, II:

But the one most in line is, of course, the National Labor Relations Act.

Mr. Chief Justice, if I may, I would like to reserve some time for rebuttal.

William H. Rehnquist:

Very well, Mr. Tichy.

Mr. Easley, we will hear now from you.

Preston Easley:

Mr. Chief Justice, and may it please the Court:

There are issues in this case that go far beyond the bounds of Mr. Gizoni and Southwest Marine.

It affects the rights of many other maritime employees, and by way of example, I concluded a jury trial in Federal court in San Diego on Friday in which a tugboat operator was hurt on a tugboat owned by a shipyard in San Diego, and the jury found that he was a seaman and awarded benefits under the Longshore Act, and the shipyard does not accept that finding and has vowed that they will follow Gizoni to the Supreme Court because they… as it seems that every shipyard has this attitude… that the Longshore Act grants them some type of blanket immunity from the Jones Act.

Somehow they were–

Anthony M. Kennedy:

You just said that he was given damages under the Longshore Act, do you mean to say the Jones Act?

Preston Easley:

–He was awarded benefits under the Jones Act.

Anthony M. Kennedy:

Under the Jones Act?

Preston Easley:

Yes, he was awarded benefits under the Jones Act, but the shipyard employer believes that the Longshore Act gives them a blanket immunity from Jones Act claims.

Section 902 of the Longshore Act describes the covered employees under the act, and I won’t read all the covered employees but it indicates ship repairman, shipbuilders, ship breakers, and people in those occupations.

It then goes on to list eight exclusions to coverage.

There are many, many ship repairmen that are not covered by the Longshore Act.

If you’re repairing a recreational vessel under 65 feet, you’re not covered by the Longshore Act.

If you’re repairing a vessel under 18 tons, you’re not covered by the Longshore Act.

If you’re repairing a vessel that is being used as a floating museum or a floating restaurant, you’re not covered by the Longshore Act.

If you’re a member of the crew of a vessel, you’re not covered by the Longshore Act.

It seems that Southwest Marine wants to recognize all the exclusions to the Longshore Act except that one exclusion because they believe it works to their disfavor.

Preston Easley:

Rather than immunizing shipyards from Jones Act lawsuits, the Longshore Act, I believe in its language contemplateS and allows the employee to attempt his Jones Act claim first.

And I will tell you why I believe that.

Section 903 of the Longshore Act, paragraph (e) says notwithstanding any other provisions of law, any amounts paid to an employee for the same injury, disability, or death for which benefits are claimed under this act, pursuant to any other worker’s compensation law or Section 20 of the act, and then it describes in parentheses, 46 U.S. Code 688, parentheses, relating to recovering for injury or death of seaman shall be credited against any liability imposed by this act.

So that provision gives a credit under the Longshore Act for any benefits paid under the Jones Act.

So they realize that some people may take the Jones Act route first.

There is another section of the Longshore Act that I believe specifically gives–

Antonin Scalia:

Excuse me, it doesn’t necessarily recognize that.

I mean, it may have just been a voluntary payment, assuming that the person was entitled to them under the Jones Act, right?

Preston Easley:

–I agree with that, it doesn’t authorize a Jones Act claim, but it contemplates that a worker who is employed in one of those occupations might seek Jones Act benefits.

Antonin Scalia:

Yes, but… okay.

Preston Easley:

There is another provision in the Longshore Act that I believe more specifically gives a shipyard employee a right to go under the Longshore Act first, although it doesn’t specifically say that, and that is Section 913(d) of the Longshore Act, Filing of Claims.

And it says, tolling provision: where recovery is denied to any person in a suit brought at law or an admiralty… and the Jones Act is law and maintenance and cure are 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 employer 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.

So I interpret that to say, if you work for a shipyard, you can go file your Jones Act lawsuit, and if the trier of fact finds that you are covered by the Longshore Act, that you are not excluded as a vessel crew member, then that tolls the statute and they keep your Longshore Act remedies alive so you can come back and reenter the Longshore Act.

Anthony M. Kennedy:

Suppose… what is the name of the bureau that is supposed to make the determinations under the Longshore Act?

Preston Easley:

It is the U.S. Department of Labor.

Antonin Scalia:

Yes, but I mean, it’s a sub… Office of Workers’–

Preston Easley:

It is the Office of Workers’ Compensation Program.

Antonin Scalia:

–OWCP, right?

Preston Easley:

Yes, sir.

Antonin Scalia:

Suppose OWCP issues a regulation in addition to making individualized determinations of who is covered?

I assume they are authorized to issue a regulation saying, we will hence forward determine that this kind of a person, and it gives a detailed description, is covered by the Longshore Act, okay.

Then, in a later lawsuit, somebody seeks to get Jones Act recovery, and seeks to get to the jury, in the face of this regulation that the Labor Department has issued, what is the result?

Does that regulation have no effect?

Preston Easley:

I think that would be subject to determination of the courts, whether or not it has an effect.

Antonin Scalia:

All right.

Preston Easley:

I would think that such a regulation violates the Longshore Act.

The agency doesn’t have unlimited license to modify the provision.

Suppose the agency said, we are going to issue a regulation that the Longshore Act does not apply to women.

Nobody’s going to recognize that.

So I think the regulations have got to be consistent with the act.

Antonin Scalia:

You don’t think we were… we’re entitled to give the regulation any deference?

Unlike other regulations where if it is within the broad range of what’s reasonable, we’ll say it is okay.

This regulation alone has to be precisely right?

There is only one meaning and we will give it that meaning?

Preston Easley:

I think that is fair to say, that the courts give the final meaning to the regulation and the determination of whether the regulation is consistent with existing law.

Antonin Scalia:

That’s unusual, if it is so.

Preston Easley:

I have a description of a maritime employee here that is two sentences long.

It says: His duties consisted of taking general care of the barge.

They included taking care of lines at docks, tightening or slackening them as necessary, repairing leaks, pumping out the barge, taking lines from tugs, responding to whistles from tugs, putting out navigational lights and signals, taking orders from the tugboat when being towed.

Harry A. Blackmun:

Where is that from?

Preston Easley:

That is what I am going to… that’s from a Supreme Court case called Norton v. Warner that’s cited in my brief.

In reading those lines, that is a near-perfect description of my client, Bryon Gizoni, who was a rigger in the shipyard and he handled these barges, moved them around the shipyard from pier to pier, moved them to the Navy base, took them where they needed to–

William H. Rehnquist:

Do you think cases like Norton against Warner and some of those cases decided in the fifties by this Court, where the Court in effect said the sky is the limit so far as a jury finding someone is a seaman… do you think those have survived in tact after our Wilander opinion?

Preston Easley:

–I believe that Wilander is consistent with those earlier Supreme Court decisions.

Sandra Day O’Connor:

You don’t think that there was language in it that intended to cut back somewhat on some of those odd decisions that occurred some years back that made everything, including questions of law, a jury question?

You don’t think there was an indication in Wilander that that was no longer our view, if it ever was the view of the Court?

Preston Easley:

I would say that in one way Wilander liberalized the situation, and in another way it restricted the remedy.

It restricted it by making it a combined issue of fact and law rather than just fact; but it, by getting rid of the aid to navigation test, that probably swung open the biggest door that has ever been swung open since the courts have been defining seaman status.

So I think Wilander ultimately makes it a lot easier to prove seaman status, because you had so many cases where people were performing functions on vessels and the vessel had no transportation function.

The vessel was a dredge or used to pump waste oil or something like that.

So I think that Wilander opened it up quite a bit.

There is also an interesting sentence in Wilander that directly addresses the issue that is raised for review in this case, and that’s, should people’s status be determined by their occupation, or should their remedy be determined by their occupation?

And in Wilander it says it is not the employee’s particular job that is determinative, but the employee’s connection to a vessel.

And that’s Mr. Gizoni’s position here.

As far as making seaman status a factual issue, Wilander creates some bounds for it, but it still, I think, leaves it pretty wide open because it says, if reasonable persons, applying the proper legal standard could differ as to whether the employee was a member of the crew, it was a question for the jury.

And I think that’s a scenario–

Anthony M. Kennedy:

In this case, if you prevail and it goes to the jury, does the jury determine both whether or not there was a vessel and his… the extent of his connection to that vessel?

Preston Easley:

–The jury usually just makes a general determination as to whether he had seaman status, and the judge–

Anthony M. Kennedy:

Well, is one of the issues that is argued and submitted to the jury the question of whether or not there is a vessel?

Preston Easley:

–Yes, it is.

Preston Easley:

Yes, it is.

Sandra Day O’Connor:

Couldn’t that be a question of law, and has this Court ever decided whether all floating things in the water are vessels?

Preston Easley:

Sometimes it can be a question of law.

There have been judicial decisions that a floating drydock is not a vessel, and even though I take issue with that judicial determination, the law has stated that floating drydocks, even though they can move from port to port, are not vessels in navigation for Jones Act purposes.

There is another scenario–

Antonin Scalia:

It is always a jury question?

Preston Easley:

–Not always.

Antonin Scalia:

And I suppose the facts could be clear enough that there is just no evidence at all that the person was a crew member.

Preston Easley:

That’s right.

Antonin Scalia:

I suppose that also would be taken away from the jury.

So you are not claiming it always go to the jury.

Preston Easley:

That’s right.

There is another situation where the law has determined vessel status, and that is, if you are using a barge to move things around in a shipyard or some other location, the barge will probably qualify as a vessel in navigation.

Some shipyards and maritime employers take barges and they fasten them all to the dock and they tie up vessels against the outboard side of the barge and they use the barge as a dock.

And the courts have held that if you are using a barge for a dock, then the barge does not become a vessel in navigation.

So there are certain scenarios where the court has said, this is just not a vessel in navigation for Jones Act purposes, and I’m not saying that those should be thrown to the jury every time and let the jury overturn these legal decisions.

But I agree with the language in Wilander that when reasonable minds can differ, then it’s a question that should go to the jury.

I want to point out something else about how ridiculous this occupation test is if you want to read it literally.

And that is, the Longshore Act is extended to the outer continental shelf by the Outer Continental Shelf Lands Act, and the occupations enumerated in the Outer Continental Shelf Lands Act are workers involved in exploring, developing, removing, or transporting natural resources of the outer continental shelf.

So if we are going to devise a statutory occupational test, then I guess every member of a crew boat that takes workers offshore, every kind of vessel used in this offshore oil drilling and exploration and transportation would fall under the Jones Act.

Even some of the oil companies have proposed removing oil from fixed platforms with oil tankers and shipping the oil away from the platform.

So if we are going to be literal on the occupation, then all those tanker crews that are pumping oil off the outer continental shelf are going to have to first submit themselves to the Department of Labor for a finding of seaman status.

That’s why the occupational test is too unreasonable to apply.

The Court has made a similar ruling or a ruling in a case similar to this.

It is a footnote in Gray v. Herb’s Welding which dealt with longshore jurisdiction versus State workers’ compensation jurisdiction for the first 3 miles offshore.

And there is a footnote by the Supreme Court that says,

“Floating structures have been treated as vessels by lower courts. “

“Workers on them, unlike workers on fixed platforms, enjoy the same remedies as workers on ships. “

So I think there is some precedent that says that there is no Longshore Act exclusion from people in those occupations seeking seaman status.

Something that’s an interesting comparison that has come into my own mind with regard to your Wilander case is virtually every shipyard has a paint barge.

Preston Easley:

That’s a barge that has scaffolding permanently mounted on it that is moved all around the shipyard to paint the offshore side of each vessel.

And I would think it unusual to have a system where an individual painting a fixed oil rig from a boat could have seaman status, but a man painting a vessel from a floating barge that moves around the shipyard could not seek seaman status.

In a lot of these cases that were decided by the Supreme Court in the fifties, the individuals very arguably had harbor worker status rather than Jones Act, but they were still given the right to have these issues determined by the jury.

William H. Rehnquist:

What’s the difference between a vessel and a barge?

Preston Easley:

In legal terms, none.

The barge is a vessel in navigation for purposes of the Jones Act, and that’s stated in the Norton v. Warner case and it’s stated in other cases.

It is defined as any contrivance capable of transportation on water.

The Longshore Act provides some immunity to shipyards that I am going to concede them.

If the person is not a member of the vessel crew, the ’84 amendments did away with the dual-capacity doctrine, where the shipyard has a dual capacity as vessel owner in addition to its capacity as the employer.

So when vessels are in the yard for repair, the shipyard repairman cannot claim that the shipyard is owner pro hac vice of the vessel being repaired and then sue the shipyard in a second capacity as owner pro hac vice of the vessel.

But for the shipyard to get that immunity, there has to be a showing that the worker is covered by the Longshore Act and not a member of the crew.

I have heard the term “land based” bantered around a lot in this litigation.

Whether a person is land based or not I don’t think determines the issue.

There are many people that are land… that don’t sleep on the vessel, that are land based: ferry boat operators, tour boat operators, tugboat operators in a harbor.

Shipyards want to force Jones Act employees into the Longshore Act, and the test they want to use is, workers that are arguably covered by the Longshore Act should have to go to the Department of Labor first.

And that raises a real interesting question as to who makes this determination as to who is arguably covered by the Longshore Act, who then has to go to the Department of Labor, because according to the shipyards, the tugboat operators and captains are arguably covered by the Longshore Act.

Thank you.

William H. Rehnquist:

Thank you, Mr. Easley.

Mr. Long, we will hear from you.

Robert A. Long, Jr.:

Thank you, Mr. Chief Justice, and may it please the Court:

Let me begin by saying a word about this primary jurisdiction point.

We see no basis in the Longshore Act, including its 1972 amendments or the Jones Act for concluding that Congress intended to remit the determination of seaman status to the special expertise of the Secretary of Labor.

Juries have been making that determination under the Jones Act since 1920.

Federal courts sitting in admiralty have been making that determination since long before that, and in fact, we think a provision of the Longshore Act refutes the primary jurisdiction argument.

Section 13(d), 33 U.S.C. 913(d) tolls the statute of limitations under the Longshore Act, in the event that a suit is brought at law or in admiralty.

We think if the Secretary were meant to have primary jurisdiction, there would be no reason to have a tolling provision, certainly not a perfectly general tolling provision such as 13(d).

Antonin Scalia:

What happens if the Secretary issues a regulation dealing with this subject?

Would the court in admiralty ignore it or what?

Or he shouldn’t issue it?

Robert A. Long, Jr.:

I would think not, after… it is perfectly clear after Wilander that seaman is linked to master or member of a crew of a vessel.

Robert A. Long, Jr.:

If the Secretary were to issue a regulation interpreting that phrase, I would think it would be entitled to deference from the courts.

Antonin Scalia:

It would be?

Robert A. Long, Jr.:

Yes, it would be.

Antonin Scalia:

So if he issues a regulation, the courts, in the Jones Act case, would have to follow his regulation, even though he is issuing it under–

Robert A. Long, Jr.:

If it is a reasonable interpretation of the phrase

“master or member of a crew of a vessel. “

And I draw that conclusion from the Court’s holding in Wilander that master or member of a crew restates who is a seaman under the Jones Act.

Antonin Scalia:

–All right, and then suppose he doesn’t issue a regulation, but in fact the claimant goes to him for a case determination initially and he decides that the work is covered.

That worker could then not later challenge that and bring a Jones Act–

Robert A. Long, Jr.:

If the issue of seaman status is actually litigated and adjudicated in the proceeding under the Longshore Act, then we do think that there would be issue preclusion.

Our position in this case does rest on the plain language of the statute.

We do think it’s quite clear, under the exclusions of Section 2(3) of the Longshore Act, that a ship repairman, if he or she is a member of a crew of a vessel, is not covered by the Longshore Act and is entitled to a remedy under the Jones Act.

If the ship repairman has a sufficiently permanent connection to a vessel in navigation, which may be a vessel that stays entirely within a harbor, and if that ship repairman contributes to the function of the vessel or the accomplishment of its mission, which may be a special purpose, then that repairman would meet the definition of a seaman or a member of a crew.

Sandra Day O’Connor:

–Mr. Long, that is how you would give effect to the mutual exclusivity of the two acts?

Robert A. Long, Jr.:

No, we don’t… well, yes, excuse me, Justice O’Connor.

They are mutually exclusive, if you are a master or a member of a crew, then you are covered by the Jones Act and not by the Longshore Act.

We think petitioner’s argument is inconsistent with the language and the structure of the other exclusions.

There are eight of them.

The exclusion for a master or member of a crew is only one.

There is an exclusion for a ship repairman who is employed to repair a recreational vessel under 65 feet.

That’s Section 2(3)(f).

There is an exclusion for a ship repairman engaged by the master to repair a vessel under 18 tons net.

That’s Section 2(3)(h).

We think it is quite clear from the structure of the statute that Section 2(3) defines a very broad category of maritime employee and then cuts out various subcategories, including a master or member of a vessel.

We also think petitioner’s position to contrary to this Court’s recognition in Wilander that seaman status is not a pure question of law, but a mixed question of law and fact; and therefore, if reasonable persons, applying the correct legal standard could differ as to whether the employer was a member of a crew, it is a question for the finder of fact.

Sandra Day O’Connor:

Do you think it is a question of law, whether a vessel is a vessel?

Robert A. Long, Jr.:

It can be, Your Honor.

We think in certain cases it would be quite proper for the District Court to decide that question as a matter of law.

As we understand it for example, a construction platform, even if it floats on water, is not a vessel as a matter of law.

John Paul Stevens:

May I go back to Justice Scalia’s hypothetical with you a moment?

John Paul Stevens:

And you suggested that if there had been an actual adversary adjudication by the agency in this case, that would be binding on the employee.

Are there cases that so hold?

Robert A. Long, Jr.:

I am not aware of cases that so hold.

There are cases that suggest that.

Fontenont against AWI is one.

This is a long proceeding that involves a number of informal stages under the Longshore Act.

There are cases such as Boatel v. Delaware that hold that the informal stages are not sufficient to give a collateral estoppel effect.

Byron R. White:

But the issue would have to be there as to whether it’s… he is a seaman or not?

Robert A. Long, Jr.:

It would have to be there and actually litigated, Your Honor.

John Paul Stevens:

So that means, I take it, in cases like this, the employer would be well advised always to resist payment in order to get the benefit of adjudication in a doubtful case?

Robert A. Long, Jr.:

Well, we don’t agree that that will be the result in every case.

Litigation is costly.

We think there are workers who are clearly covered under the Longshore Act and not under the Jones Act.

In those cases–

John Paul Stevens:

No, we are just talking about doubtful cases, always.

I mean, if it is perfectly clear, the lawyers will work that out.

Robert A. Long, Jr.:

–I think to be honest that in doubtful cases, there is some incentive to go ahead and litigate the issue.

We think the legislative history supports the plain language of the statute.

I think it is worth noting that the original 1927 act actually had a provision in it at one point that would have extended the Longshore Act to crew members of all vessels owned by U.S. citizens, and that was taken out.

The Court discussed that in South Chicago Coal against Bassett, and the ’72 amendments which added this more expansive definition of maritime employment were intended to extend the coverage to certain injuries on land, not to restrict–

John Paul Stevens:

Can I ask another question about tactics in this situation?

If you are right, would it not, if an employer could afford to do so, he would be better off generally, in a doubtful case, to litigate the Jones Act claim first because that tolls the statute of limitations for the other, right?

Robert A. Long, Jr.:

–Yes.

John Paul Stevens:

So that would be the normal way to do it is to litigate rather than filing a claim and taking the risk that you would get an adverse adjudication.

I would suppose what he would want to… would he be trying to prove that the employee is a seaman?

Robert A. Long, Jr.:

I think under Justice Stevens’ hypothetical, the employee would want to prove he’s–

Byron R. White:

He doesn’t want to be subject to a Jones Act suit.

Robert A. Long, Jr.:

–Right, but the employer would prefer to pay under the Longshore Act in many cases because–

Byron R. White:

Exactly, so that is kind of a funny position for him to be in, to go before the administrative agency.

He’d be trying to prove something he really doesn’t want to prove.

Robert A. Long, Jr.:

–I think in practice in many cases, of course, these workers don’t have the resources and may be in genuine doubt about which the two schemes covers them.

So they will go in and make a claim under the Longshore Act and then they may–

John Paul Stevens:

And run the risk of an adjudication that would foreclose their Jones Act claim?

Robert A. Long, Jr.:

–It does run that risk, Your Honor.

Let me just say very briefly about policy, there is no risk of double recovery here.

It is well established that you get a credit for any amount paid under one statute against any liability under the other statute.

And it’s not clear to us that the costs will be much higher under this system.

Petitioner’s proposed rule we think would still leave a lot of uncertainty about whether particular workers are covered, and the situation we have here is basically the situation that we had in the Fifth Circuit, possibly the largest admiralty circuit, since 1959 when they decided the Robison case, until very recently when they decided this Pizzitolo case.

And as far as we can tell, there have not been ruinous insurance costs or a tremendous flood of litigation in the Fifth Circuit.

So we do believe that this is a rule that the employers can live with… if there are no further questions.

William H. Rehnquist:

Thank you, Mr. Long.

Mr. Tichy, do you have rebuttal?

You have 6 minutes remaining.

George J. Tichy, II:

Thank you very much, Mr. Chief Justice.

I guess when I am asked a question I dwell on it for some point, but in reference to Justice Scalia’s comments, I can think of two parallel situations in the Federal jurisdiction.

One is the relationship between the National Labor Relations Act and the antitrust laws, and the second is Justice White’s decision in Schwalb, which was in fact decided by this Court in 1989–

Byron R. White:

That was a Court decision, wasn’t it?

George J. Tichy, II:

–Excuse me?

Byron R. White:

That was a Court decision, wasn’t it?

George J. Tichy, II:

That’s correct, but it was, Your Honor, and you know the case much better than I ever will–

Byron R. White:

I don’t even remember it.

George J. Tichy, II:

–But it relates, if I recall, to two concurrent forms or potentially concurrent forms of Federal relief.

One was FELA and the other was the Longshore and Harbor Workers Act, and of course, in that case, you went, I think to the extent of elucidating for those of us who practice in this area, the extent to which the Longshore Act does in fact apply, indicating the integral part of and essential characteristic to cover the individuals who are involved maintenance at conveyor belt.

John Paul Stevens:

Just refresh my recollection, because I don’t remember the case even as well as Justice White does.

George J. Tichy, II:

Okay.

John Paul Stevens:

Did that case hold that you must go to… bring your administrative claim before you litigate your FELA claim?

George J. Tichy, II:

What happened in this case was that a claim was attempted to be made under FELA, and there was raised as a defense that the Longshore Act applied.

And it was ultimately determined by this Court that indeed the Longshore Act applied because the individuals, who were essentially maintenance employees, were, if you will… and not very highly paid individuals necessarily, were involved in picking up coal around a conveyor belt that was used to load coal on to a vessel–

John Paul Stevens:

In other words, that case held that they were covered by one statute rather than the other–

George J. Tichy, II:

–Correct.

John Paul Stevens:

–But did it say anything about which proceeding you must commence first?

George J. Tichy, II:

I think implicit in that, and I will certainly leave it to the Justices to discuss in more detail, is where you arguably have a claim which is within the Longshore Act, that’s where you should initiate your proceeding, that’s where your focus should be, and that’s where you should go.

Now I would point out further–

John Paul Stevens:

There claim there wasn’t arguably, their claim, as a matter of law was within that statute.

George J. Tichy, II:

–Well, ultimately you determined that.

John Paul Stevens:

Yes.

George J. Tichy, II:

Absolutely.

When this Court decided Wilander, there were two very interesting and articulate points that were raised.

First of all, on page 813 of the decision, Justice O’Connor stated: Thus, it is odd but true that the key requirement for Jones Act coverage now appears in another statute, referencing the Longshore Act.

Subsequently, on the top of page 814, Justice O’Connor states: Whether under the Jones Act or general maritime law, seaman do not include land-based workers.

Mr. Gizoni is a land-based worker.

Antonin Scalia:

Mr. Tichy, do you know how to pronounce Wilander?

George J. Tichy, II:

I assume it is Wilander.

Antonin Scalia:

You don’t know that firsthand?

George J. Tichy, II:

I worked in North Shipping, Sweden for some time in my youth.

I am assuming that it is pronounced that way.

Maybe it is German I am not sure.

Antonin Scalia:

We ought to agree with this–

–Wilander is a Swedish name.

George J. Tichy, II:

That is what I assumed, and in my youth many years ago I did have the opportunity to speak some of the language, though not well.

Byron R. White:

That is the way it is pronounced in the broadcast of tennis tournaments.

[Laughter]

George J. Tichy, II:

That’s right, and there we have decided on the dispositive determination.

Sandra Day O’Connor:

Maybe we can call it McDermott and solve the problem that way.

[Laughter]

George J. Tichy, II:

Okay, thank you very much, Justice O’Connor.

In summation, for all the reasons which we have raised before this Court: application of basic rules of statutory construction, specifically 2(3); implementation of congressional intent, which of course is reflected in the 1972 amendments; avoidance of multiple litigation; avoidance of multiple and inconsistent results; maintenance of a uniform, less expensive and more certain no-fault compensation system, as well as the simplicity of definitional language and, I submit to you, fundamental logic, petitioner, Southwest Marine, requests that the decision of the Ninth Circuit Court of Appeals be reversed.

Thank you.

William H. Rehnquist:

Thank you, Mr. Tichy.

The case is submitted.