When the Supreme Court considered the problem of states extending their workers’ compensation statutes to injuries to maritime workers on navigable waters, its overriding concern was that a uniform system apply to maritime workers throughout the country.  It is hornbook law that “Congress has paramount power to fix and determine the maritime law which shall prevail throughout the country. Butler v. Boston & Savannah S.S. Co., 130 U.S. 527, [555-557, 32 L. Ed 1017, 1024, 9 S. Ct. 612, 618-619 (1889)]; In Re Garnett, 141 U.S. 1, 14[, 35 L. Ed 631, 633-634, 11 S. Ct. 840, 842-843 (1891)] and further, that, in the absence of some controlling statute the general maritime law as accepted by the federal courts constitutes part of our national law applicable to matters within the admiralty and maritime jurisdiction. The Lottawanna, [88 U.S. 558, 22 L. Ed. 654,] 21 Wall. 558 [(1875)]; Butler , [supra at 557]; Workman v. New York City, 179 U.S. 552[, 45 L. Ed. 314, 21 S. Ct. 212 (1900)]."  Southern Pacific Co. v. Jensen, 244 U.S. 205, 215, 61 L. Ed. 1086, 1098, 37 S. Ct. 524, 528 (1917).

The Court was concerned that if a state were allowed to apply its workers’ compensation laws to ships engaged in interstate and foreign commerce, they would then try to extend tax and other regulatory laws as well.  So the concern for a uniform solution to the problem of maritime workers’ compensation started the process that a decade later produced the LHWCA (33 U.S.C.S. § 901 et seq.).  Based on the New York Workman’s Compensation Act, the Longshore Act applied initially only to injuries sustained by maritime workers, working for maritime employers, on navigable waters.  Although some early cases questioned how hard the location test was, the Supreme Court maintained a focused approach, keeping the Act over the water.  In 1962, the Court succumbed for the first time to an appeal to stretch coverage to include those working in shipyards in new ship construction, even though the Act’s jurisdictional language did not even hint at such an interpretation.  And the 1972 landward extension prompted courts to determine just what an “adjoining area” was.  The Supreme Court’s earliest post-Amendment longshore case dealt with this issue.

In 1997 the Court, for the first and only time, dealt with the question of what constituted an “adjoining area.”  In Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 53 L. Ed. 2d 320, 97 S. Ct. 2348, 6 BRBS 150(CRT) (1977), the Court held that workers in shoreside terminals were covered by the Act and that those locations were within the area Congress intended to be covered by expansion onto land.  It expressly rejected the “point of rest” theory argued for by stevedoring companies.  Thereafter, the ball has been in the appellate courts, and the application of those two words, “adjoining area” has been skewed dramatically by different courts.

The Ninth Circuit weighed in with a predictably fuzzy, expansive analysis known as the “functional relationship” test in Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137, 140-141, 7 BRBS 409(CRT) (9th Cir. 1978).  The Fifth Circuit followed suit with an ambiguous application of the rather clear statutory language in Texports Stevedore Co. v. Winchester, 632 F.2d 504, 12 BRBS 719(CRT) (5th Cir. 1980) (en banc), cert. denied, 452 U.S. 905, 69 L. Ed. 2d 406, 101 S. Ct. 3031 (1981).  While Winchester described the geographical reach of the Act on land, its holding has been restricted by more recent decisions imposing a temporal requirement, i.e., activity described in the Act must be ongoing at the time of the injury on a geographically qualifying situs. Boomtown Belle Casino v. Bazor, 313 F.3d 300, 304, 28 BRBS 43(CRT) (5th Cir. 2002), cert. denied, 540 U.S. 814, 157 L. Ed. 2d 29, 124 S. Ct. 65 (2003). And after the Supreme Court emphasized that the “plain language” of the LHWCA should be applied to its interpretation in Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 272, 129 L. Ed. 2d 221, 228, 114 S. Ct. 2251, 2255, 28 BRBS 43(CRT) (1994), the Fourth Circuit drew the sharpest and narrowest boundary in Sidwell v. Express Container Services, 71 F.3d 1134, 29 BRBS 138(CRT)  (4th Cir. 1995), cert. denied, 518 U.S. 1028, 135 L. Ed. 2d 1086, 116 S. Ct. 2570 (1996).   The Supreme Court has shown no interest in resolving this wide variation in land-based coverage, and parties must evaluate exposure based precisely on the geographical location of the injury.  Isn’t this the result that Jensen sought to avoid?  The Supreme Court described the problem then in these words:

If New York can subject foreign ships coming into her ports to such obligations as those imposed by her Compensation Statute, other states may do likewise. The necessary consequence would be destruction of the very uniformity in respect to maritime matters which the Constitution was designed to establish; and freedom of navigation between the states and with foreign countries would be seriously hampered and impeded. . . . The legislature exceeded its authority in attempting to extend the statute under consideration to conditions like those here disclosed. So applied, it conflicts with the Constitution and to that extent is invalid.

244 U.S. at 217-218[, 61 L. Ed. at 1099, 37 S. Ct. at 529].  And now there is an equally sharp division in the area of attorneys’ fees.  Conflicting interpretations of Section 28 (33 U.S.C.S. § 928) have arisen from the Fourth, Fifth, Sixth, Seventh, and Ninth Circuits.  These differences may not appear to the casual observer to be as serious as the jurisdictional split; nevertheless, they shatter the possibility of uniformity and leave parties to vagaries dictated solely by geography.

Given the Supreme Court’s limited docket and its reluctance to revisit shoreside jurisdiction, is there any other way to harmonize such conflicts among the circuits?  Why can’t we have one Article III appellate court assigned the job of handling longshore appeals?  Such courts exists for tax and patent cases as well as for international disputes and claims against the .  Such a court could be constituted by assigning sitting circuit judges from the circuits in some proportion to the longshore claims arising from those circuits.  Congress would have to create this special review court, but it could operate like the Multidistrict Litigation Panel for U.S. District Courts and only handle conflicts.  Given the desirability for uniformity in application of a national compensation act, why can’t Congress spare a few minutes to return longshore claims to the land of uniformity?

© Copyright 2009 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. This article by Thomas C. Fitzhugh III, Fitzhugh, Elliott & Ammerman, P.C., Houston, Texas, will be published in an upcoming issue of the Benefits Review Board Service Longshore Reporter (LexisNexis).