SOUTHWEST MARINE, INC., PETITIONER V. BYRON GIZONI

   No. 90-584

   In The Supreme Court Of The United States

   October Term, 1990

   On Writ Of Certiorari To The United States Court Of Appeals For The
Ninth Circuit

   Brief For The United States As Amicus Curiae Supporting Respondent

            TABLE OF CONTENTS
   Question Presented
   Interest of the United States
   Statement
   Summary of argument
   Argument:
     I. Jones Act seamen are expressly excluded from
        coverage under the LHWCA
        A. The LHWCA's definition of "employee," as
           construed in Wilander, excludes Jones Act
           seamen
        B. Petitioner's exclusive focus on job title conflicts
           with the language of the LHWCA
        C. The FELA cases do not support petitioner's
           position
    II. Neither the legislative history of the LHWCA,
        nor this Court's prior decisions, suggest that
        Congress intended to displace the traditional
        remedies available to seamen
        A. The legislative history confirms that Congress
           did not intend to deprive seamen of
           their traditional remedies for personal
           injury
           1. The original LHWCA did not apply to
              seamen
           2. The 1972 amendments did not restrict
              the remedies available to seamen
        B. Petitioner's approach is inconsistent with
           the remedial purposes of the LHWCA and
           the Jones Act
        C. This Court's decisions construing the 1972
           amendments do not support petitioner's
           position
   III. Petitioner's policy-based arguments are unpersuasive
        A. The court of appeals' decision will not lead
           to double recoveries
        B. Under established principles of issue preclusion,
           only an adjudication under the
           LHWCA that an employee is not a crew
           member precludes litigation of a Jones Act
           claim
        C. Petitioner's "primary jurisdiction" argument
           is without merit
   Conclusion

                          QUESTION PRESENTED

   Whether a maritime employee whose occupation is one of those
enumerated in the Longshore and Harbor Workers' Compensation Act may
be a seaman within the meaning of the Jones Act.

                     INTEREST OF THE UNITED STATES

   The Secretary of Labor administers the Longshore and Harbor
Workers' Compensation Act (LHWCA), 33 U.S.C. 901-950.  See 33 U.S.C.
939.  The Secretary has delegated her responsibilities under the LHWCA
to the Director of the Office of Workers' Compensation Programs
(OWCP), who administers the Act pursuant to regulations codified at 20
C.F.R. Pts. 701-704.  The Director is a party to and may participate
in any proceedings under the LHWCA.

   This case presents the question whether an employee whose
occupation is one of those enumerated in Section 2(3) of the LHWCA, 33
U.S.C. 902(3), may nevertheless be a "master or member of a crew of
any vessel" eligible for a remedy under the Jones Act, 46 U.S.C. App.
688, rather than under the LHWCA.  Resolution of this issue will
affect federal policy concerning the scope of the LHWCA, as well as
administration of the Act by the Secretary of Labor.  The United
States therefore has a substantial interest in this case.

                               STATEMENT

   1. The LHWCA is a workers' compensation statute that applies to
certain employees injured in the course of maritime employment "upon
the navigable waters of the United States (including any adjoining
prier, wharf, dry dock, terminal, building way, marine railway, or
other adjoining area customarily used by an employer in loading,
unloading, repairing, dismantling, or building a vessel)." 33 U.S.C.
903(a).  Section 2(3) of the LHWCA defines an "employee" covered by
the Act as

      any person engaged in maritime employment, including any
      longshoreman or other person engaged in longshoring operations,
      and any harbor-worker including a ship repairman, shipbuilder,
      and ship-breaker, but such term does not include * * * a master
      or member of a crew of an vessel.

33 U.S.C. 902(3) (emphasis added).  An employer's liability under the
LHWCA is "exclusive and in place of all other liability of such
employer to the employee * * * at law or in admiralty." 33 U.S.C.
905(a).

   This Court recently concluded that a "master or member of a crew of
any vessel" within the meaning of the LHWCA is the equivalent of a
"seaman" under the Jones Act.  See McDermott Int'l, Inc. v. Wilander,
111 S. Ct. 807, 813-814 (1991).  The Jones Act, in turn, provides that
"(a)ny seaman who shall suffer personal injury in the course of his
employment may, at his election, maintain an action for damages at
law, with the right of trial by jury." 46 U.S.C. App. 688.

   2. Petitioner Southwest Marine, Inc., operates a ship repair
facility in San Diego.  Petitioner owns several structures that are
used in ship repair and that the court of appeals characterized as
"floating platforms." /1/ Pet. App. II-2.  These floating platforms
are used to carry "equipment, materials, supplies, and vessel
components around the shipyard and on to and off of vessels being
repaired." Ibid.  They have no motive power or navigational aids of
their own, but are moved into place by tugs.  Once secured alongside a
vessel, the platforms support ship repairmen engaged in their work.
Ibid.

   Petitioner employed respondent as a rigging foreman.  Respondent
rode the floating platforms as they were towed into place and
performed his work while on board.  Respondent sometimes "served as a
lookout and gave maneuvering signals to the tugboat operator" when the
platforms were moved.  Pet. App. II-2.  He also received lines from
the ships' crews to secure the platforms to the vessels being
repaired.  He alleges that he was injured when his foot broke through
a piece of wood covering a hole in the deck of a floating platform as
it was transporting a rudder from the shipyard to a floating drydock.
Id. at II-2 to II-3.

   Respondent submitted a claim for and received benefits from
petitioner under the LHWCA.  /2/ He later filed this action against
petitioner under the Jones Act, alleging that he was a seaman injured
as a result of his employer's negligence.  Pet. App. II-3.  Respondent
also asserted claims for unseaworthiness and maintenance and cure.
J.A. IV-4 to IV-5.  Respondent alleged that petitioner owned and
operated "a group of vessels including a pontoon barge, two float
barges, a rail barge, a diver's barge, and a crane barge in navigable
waters." J.A. IV-3.  He further alleged that, as a rigging foreman, he
was "permanently assigned to said group of vessels," and thus was a
Jones Act seaman.  Ibid.

   The district court granted petitioner's motion for summary
judgment.  Pet. App. I-1 to I-2.  The court held that petitioner's
floating platforms were not vessels in navigation to which respondent
was permanently attached, and that respondent was not aboard primarily
for the purpose of navigation.  Ibid.; id. at III-8 to III-9.  In
addition, the district court concluded that "plaintiff, as a harbor
worker, is precluded from bringing this action by the exclusive remedy
provisions of the (LHWCA)." Id. at I-2.

   3. The court of appeals reversed.  Pet. App. II.  It observed that
"(w)hether a claimant is a seaman is typically a question for the
jury, where there is an evidentiary basis for such a finding." Id. at
II-3.  In this case, the court found there was a sufficient basis for
allowing a jury to determine whether respondent was a seaman.  The
court relied on its prior decision in Estate of Wenzel v. Seaward
Marine Services, Inc., 709 F.2d 1326 (9th Cir. 1983), which concerned
a diver who worked aboard a submerged cleaning and maintenance
platform.  The court of appeals concluded that this case, like Wenzel,
presents "close questions of fact which should have been determined by
the jury." Pet. App. II-4.  In particular, the court said, respondent
was entitled to have a jury decide whether the floating platforms are
vessels, whether respondent had a permanent relationship to the
platforms, and whether he aided in their navigation.  Ibid.

   The court of appeals rejected the district court's holding that, as
a matter of law, respondent was covered by the LHWCA rather than the
Jones Act.  The court recognized the the LHWCA, where it applies, is
the employee's exclusive remedy for an injury in the course of
maritime employment.  Pet. App. II-5 (citing 33 U.S.C. 905(a)).  But,
the court observed, "by its terms, the LHWCA does not cover 'a master
or member of a crew of any vessel,'" which is "the equivalent of
'seaman' in the Jones Act." Pet. App. II-6.  Consequently, the court
of appeals reasoned that "(w)hether an employee is covered by the
LHWCA or the Jones Act should be determined by looking to the nature
of the claimant's work and the intent of Congress in enacting these
compensation() schemes, not by looking to the claimant's job title."
909 F.2d at 389.  /3/ Accordingly, the court held that respondent's
status as a ship repairman, one of the occupations enumerated in
Section 2(3) of the LHWCA, 33 U.S.C. 902(3), did not preclude him from
seeking damages under the Jones Act.  Pet. App. II-6.

                          SUMMARY OF ARGUMENT

   Section 2(3) of the LHWCA, which defines the class of employees
covered by that Act, expressly excludes from coverage "a master or a
member of a crew of any vessel." 33 U.S.C. 902(3)(G).  This Court
recently concluded that a "master or member of a crew of any vessel"
is the equivalent of a Jones Act seaman.  McDermott Int'l, Inc. v.
Wilander, 111 S. Ct. 807 (1991).  Wilander held, moreover, that "(i)t
is not the employee's particular job that is determinative (of seaman
status), but the employee's connection to a vessel." Id. at 817.
Because a ship repairman may spend all or most of his working hours
aboard a vessel (including a special-purpose vessel used exclusively
in ship repair), in furtherance of that vessel's mission, such a
worker may qualify as a Jones Act seaman.

   Petitioner's contention that ship repairmen, shipbuilders, and ship
breakers should be conclusively presumed not to be Jones Act seamen
ignores the LHWCA's express language excluding from coverage a "master
or member of a crew of any vessel." And because Congress's enumeration
of certain occupational categories was not intended to be exhaustive,
petitioners' approach would draw an irrational distinction between
those in the enumerated categories (longshoremen, ship repairmen,
shipbuilders, and ship-breakers) and other maritime employees.
Petitioner incorrectly relies on cases holding that certain injured
railroad workers who would otherwise have a remedy under the Federal
Employers' Liability Act, 45 U.S.C. 51 et seq., are instead covered by
the exclusive remedial provisions of the LHWCA.  These cases are
readily distinguishable because the LHWCA contains no express
exclusion for railroad workers comparable to the exclusion of Section
2(3)(G) for crew members.

   The legislative history confirms that Congress did not intend to
deprive seamen of their traditional remedies for personal injury.  The
original LHWCA, which applied only to longshore and harbor workers
injured on navigable waters, expressly excluded from its coverage a
"master or member of the crew of any vessel." When the 1972 amendments
to the LHWCA extended coverage to certain maritime workers injured on
land, Congress limited the categories of land-based employees covered
by the LHWCA by specifying that they must be engaged in maritime
employment.  But in extending the LHWCA to certain additional
categories of land-based workers, Congress did not intend to deprive
sea-based workers of their traditional seamen's remedy under the Jones
Act.

   Petitioner's policy-based arguments cannot alter the LHWCA's plain
language.  Moreover, petitioner is wrong in suggesting that an injured
worker may receive a "double recovery" under both the LHWCA and the
Jones Act.  It is well settled that any compensation received under
the LHWCA will be credited against a subsequent Jones Act award, and
any amounts paid to an employee pursuant to the Jones Act must be
credited against any subsequent liability imposed under the LHWCA.
Because employees cannot receive a double recovery, it is not clear
why employers should be required to pay double insurance premiums.
The Court rejected a similar "double insurance" argument in Sun Ship,
Inc. v. Pennsylvania, 447 U.S. 715, 725 (1980).

   Nor is petitioner or its amicus correct in arguing that an employee
should be precluded from pursuing a claim under the Jones Act simply
because he has also filed a claim under the LHWCA.  Under established
principles of issue preclusion, only if the question is actually
litigated, and it is adjudicated that an employee is not a member of a
crew of any vessel, is relitigation of that issue barred in an action
under the Jones Act.

   Petitioner's novel suggestion that the Department of Labor should
exercise primary jurisdiction over the question whether a maritime
employee is a seaman is outside the scope of the question presented
for review and, in any event, is without merit.  Petitioner's
reliance, in support of this suggestion, on the exclusive remedy
provision of the Federal Employees Compensation Act (FECA), 5 U.S.C.
8116(c), is completely misplaced.  The courts defer to the Secretary
of Labor to determine whether an employee is covered under FECA
because that statute, unlike the LHWCA, confers on the Secretary
exclusive and unreviewable authority to decide coverage questions.

                               ARGUMENT

   I. JONES ACT SEAMEN ARE EXPRESSLY EXCLUDED FROM COVERAGE UNDER THE
LHWCA

   A. The LHWCA's Definition of "Employee," as Construed in Wilander,
Excludes Jones Act Seamen

   By its terms, the LHWCA applies to "any person engaged in maritime
employment, including any longshoreman or other person engaged in
longshoring operations, and any harbor-worker including a ship
repairman, shipbuilder, and ship-breaker," but not to "a master or
member of a crew of any vessel." 33 U.S.C. 902(3).  Congress could not
have stated more clearly that "a master or a member of a crew of any
vessel" is not within the scope of the LHWCA.

   In McDermott Int'l, Inc. v. Wilander, 111 S. Ct. 807 (1991), this
Court recognized that a "master or member of a crew of any vessel"
under the LHWCA is equivalent to a Jones Act seaman.  The Court
observed that

      "master or member of a crew" is a refinement of the term
      "seaman" in the Jones Act;  it excludes from LHWCA coverage
      those properly covered under the Jones Act.  Thus, it is odd but
      true that the key requirement for Jones Act coverage now appears
      in another statute.

111 S. Ct. at 813.  The Court added that "'master or member of a crew'
restates who a 'seaman' under the Jones Act is supposed to be:  a
sea-based maritime employee." Id. at 814.

   In Wilander, the Court concluded that "the better rule is to define
'master or member of a crew' under the LHWCA, and therefore 'seaman'
under the Jones Act, solely in terms of the employee's connection to a
vessel in navigation." 111 S. Ct. at 817.  Accordingly, the Court held
that "(i)t is not necessary that a seaman aid in navigation or
contribute to the transportation of the vessel, but a seaman must be
doing the ship's work." Ibid.  The Court viewed this rule as
consistent with "Congress' land-based/sea-based distinction" between
the LHWCA and the Jones Act.  Ibid.  Because the Jones Act was
intended to address "the special hazards and disadvantages to which
they who go down to the sea in ships are subjected," ibid. (quoting
Seas Shipping Co. v. Sieracki, 328 U.S. 85, 104 (1946) (Stone, C.J.,
dissenting)), the Court said that "it is not the employee's particular
job that is determinative, but the employee's connection to a vessel."
/4/ 111 S. Ct. at 817.

   Thus, the plain language of the LHWCA excludes from its coverage
any "master or member of a crew of any vessel" -- i.e., any Jones Act
seaman.  As the Court observed in Wilander, "(t)here is no indication
in the Jones Act, the LHWCA, or elsewhere, that Congress has excluded
from Jones Act remedies those traditional seamen who owe allegiance to
a vessel at sea, but who do not aid in navigation." 111 S. Ct. at 817.
 Accordingly, if respondent has the requisite connection to a vessel
in navigation, he is entitled to the remedies available to seamen
rather than the benefits provided by the LHWCA.  /5/

   B. Petitioner's Exclusive Focus on Job Title Conflicts With The
Language of the LHWCA

   Petitioner asserts (Pet. Br. 15-25) that respondent was a
"land-based employee" covered by the LHWCA as a matter of law because
his occupation was one of those enumerated in Section 2(3) of that
Act.  In support of this position, petitioner relies on Pizzitolo v.
Electro-Coal Transfer Corp., 812 F.2d 977 (5th Cir. 1987), cert.
denied, 484 U.S. 1059 (1988).  In Pizzitolo, the Fifth Circuit said
that maritime workers whose occupations are enumerated in Section
902(3) are "unqualifiedly covered by the LHWCA and therefore
ineligible for benefits under the Jones Act." 812 F.2d at 982.
Pizzitolo has not been followed by other circuits, and appears to be a
doubtful precedent even within the Fifth Circuit.  /6/ Because
Pizzitolo's approach is contrary to the language of the LHWCA, it
should be rejected.

   In addition to limiting coverage to injuries that occur on
navigable waters or certain areas adjoining navigable waters (the
"situs test"), the LHWCA establishes a "status test" to determine
coverage under the Act.  To pass the "status test," a covered employee
must be (1) engaged in "maritime employment, including * * * (but not
limited to) a ship repairman, shipbuilder, and ship-breaker," 33
U.S.C. 902(3), and (2) not fall within any of the exclusions of
Section 2(3)(A)-(H), including the exclusion for a "master or member
of a crew of any vessel," 33 U.S.C. 902(3)(G).  Only employees who
satisfy both parts of the status test are covered by the LHWCA.  /7/

   Petitioner's contention is flawed for an additional reason.  The
enumeration of occupations in Section 902(3) is not exhaustive.  See
Chesapeake & Ohio Ry. v. Schwalb, 110 S. Ct. 381, 384 (1989);  Herb's
Welding, Inc. v. Gray, 470 U.S. 414, 423 n.9 (1985).  Thus,
petitioner's argument, which would apply a conclusive presumption of
LHWCA coverage to ship repairmen, shipbuilders, and ship-breakers,
would draw an irrational distinction between workers in those
occupations and other land-based maritime workers.  There is no
indication that Congress intended to draw any such distinction.

   Of course, a ship repairman may lack the requisite connection to a
vessel in navigation to qualify for seaman status.  See P.C. Pfeiffer
Co. v. Ford, 444 U.S. 69, 80-81 (1979) (noting that "30%-35% of ship
repair work is done on land").  The mere fact that a ship repairman
performs some of his work on water does not make him a seaman, but a
ship repairman may spend all or most of his working hours aboard a
vessel (or vessels), in furtherance of the vessel's mission.  In such
circumstances, the employee may meet the test for seaman status, since
that test turns on employees' work-related connection to a vessel in
navigation, "regardless of the particular job they perform." See
Wilander, 111 S. Ct. at 817.  Consequently, job title alone cannot
determine whether an employee is a seaman covered by the Jones Act or
a harbor-worker covered by the LHWCA.  /8/

   C. The FELA Cases Do Not Support Petitioner's Position

   Petitioner contends (Pet. Br. 31-33) that the court of appeals'
decision in this case conflicts with decisions holding that the LHWC
provides the exclusive remedy for certain injured railroad workers who
would otherwise be covered by the Federal Employers' Liability Act
(FELA), 45 U.S.C. 51 et seq.  See Chesapeake & Ohio Ry. v. Schwalb,
110 S. Ct. 381 (1989);  Pennsylvania R.R. v. O'Rourke, 344 U.S. 334
(1953).  Petitioner's reliance on these cases is misplaced.  The LHWCA
applies to certain railroad workers (and therefore provides their
exclusive remedy) because the LHWCA contains no exclusion for railroad
workers comparable to the exclusion of Section 2(3)(G) for Jones Act
seamen.  Indeed, the FELA analogy demonstrates that petitioner's
position cannot be squared with the language of the LHWCA.  Petitioner
would treat Jones Act seamen, who are expressly excluded from the
LHWCA's definition of "employee," in the same manner as railroad
workers, who are not so excluded.  That result can be reached only by
ignoring the language of the LHWCA.  /9/

   II. NEITHER THE LEGISLATIVE HISTORY OF THE LHWCA, NOR THIS COURT'S
PRIOR DECISIONS, SUGGEST THAT CONGRESS INTENDED TO DISPLACE THE
TRADITIONAL REMEDIES AVAILABLE TO SEAMEN

   A. The Legislative History Confirms That Congress Did Not Intend to
Deprive Seamen of Their Traditional Remedies for Personal Injury

   The legislative history of the LHWCA provides no support for
petitioner's assertion (Pet. Br. 24) that Congress intended "to sweep
employees in occupations enumerated in the LHWCA within the exclusive
coverage of the LHWCA." Instead, the legislative history confirms that
Congress intended to exclude seamen from coverage under the LHWCA.  In
1972, Congress extended the LHWCA to injuries that occur on land
adjacent to navigable waters.  That expansion of remedies was not
intended to deprive seamen of their traditional remedies under the
Jones Act and general maritime law.

   1. The Original LHWCA Did Not Apply to Seamen

   In Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917), this Court
held that the States could not constitutionally extend their workers'
compensation systems to longshore workers injured on navigable waters.
 See Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 256-257
(1977);  Calbeck v. Travelers Ins. Co., 370 U.S. 114, 117-118 (1962).
Following Jensen, "(t)he line of demarcation between land and water
became known as the Jensen line." Director, OWCP v. Perini North River
Associates, 459 U.S. 297, 306 (1983).  Congress enacted the LHWCA in
1927 to fill the gap in workers' compensation coverage that resulted
from Jensen.  P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 72 (1979).  The
original Act excepted from its coverage a "master or member of a crew
of any vessel," ch. 509, Section 2(3), 44 Stat. 1425, because
representatives of maritime employees successfully argued that the
Jones Act and other traditional admiralty remedies generally provide
superior relief.  See Boatel, Inc. v. Delamore, 379 F.2d 850, 856 (5th
Cir. 1967) (citing Norton v. Warner Co., 321 U.S. 565 (1944)).  This
Court has recognized a duty "not (to) permit the exception to be
narrowed whether by administrative construction or otherwise." Id. at
571.

   2. The 1972 Amendments to the LHWCA Did Not Restrict the Remedies
Available to Seamen

   The original LHWCA "stopped at the water's edge." Caputo, 432 U.S.
at 259.  With the advent of modern containerized shipping, however,
longshoring functions traditionally performed aboard ship came to be
performed on land.  Ford, 444 U.S. at 74.  Once again, therefore,
coverage under the LHWCA depended on which side of the Jensen line a
longshore worker's injury occurred.  In Nacirema Operating Co. v.
Johnson, 396 U.S. 212 (1969), this Court noted the advantages of a
uniform system of compensation benefits for longshore workers on both
sides of the Jensen line, but said that the "invitation to move that
line landward must be addressed to Congress, not to this Court." Id.
at 224.

   In 1972, Congress accepted the invitation by enacting amendments to
the LHWCA.  "Whereas prior to 1972 the Act reached only accidents
occurring on navigable waters, the amended 33 U.S.C. Section 903
expressly extended coverage to 'adjoining area(s)'" on land.  Herb's
Welding, Inc. v. Gray, 470 U.S. at 420.  The 1972 amendments "were not
meant 'to cover employees who are not engaged in loading, unloading,
repairing, or building a vessel, just because they are injured in an
area adjoining navigable waters used for such activity.'" Id. at 424
(quoting H.R. Rep. No. 1441, 92d Cong., 2d Sess. 11 (1972)).  For
example, truck drivers and clerical workers, although performing their
work on the newly expanded site of coverage, are not covered by the
LHWCA, because they are not engaged in "loading, unloading, repairing,
or building a vessel." S. Rep. No. 1125, 92d Cong., 2d Sess. 13
(1972).  See also Caputo, 432 U.S. at 266-267;  Perini, 459 U.S. at
318.  Thus, when the definition of "navigable waters" was broadened to
include land-based sites, "it became necessary to describe
affirmatively the class of workers Congress desired to compensate."
Caputo, 432 U.S. at 264.  /10/

   This legislative history provides no basis for concluding that, in
enumerating certain occupations in Section 2(3), Congress intended to
limit the remedies traditionally available to seamen.  On the
contrary, Congress retained the express exclusion for masters or
members of the crew of any vessel.  See Caputo, 432 U.S. at 264 n.22.
/11/

   B. Petitioner's Approach Is Inconsistent With the Remedial Purposes
of the LHWCA and the Jones Act

   The Jones Act, like the LHWCA, "is a remedial statute," Wilander,
111 S. Ct. at 814;  the Court has recognized an "obligation not to
narrow unduly the class for whom Congress provided recovery under the
Jones Act," id. at 815.  Although the LHWCA generally is interpreted
broadly to futher its remedial purposes, see, e.g., Caputo, 432 U.S.
at 268, it is not appropriate to construe the LHWCA to supplant
remedies under the Jones Act, which is itsel a federal remedial
statute that must be given broad effect.  As Judge Wisdom noted in
Robison, "(t)he process of liberal construction of the Jones Act
cannot now be ignored because Congress has seen fit to pass the
Longshoremen's Act." 266 F.2d at 774 (quoting Carumbo v. Cape Cod S.S.
Co., 123 F.2d 991, 995 (1st Cir. 1941)).  /12/

   In Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715 (1980), this Court
held that the 1972 amendments to the LHWCA did not supplant state
workers' compensation remedies previously available to injured
workers.  Because the "thrust of the amendments was to 'upgrade the
benefits,'" id. at 723 (quoting S. Rep. No. 1125, supra, at 1), the
Court declined to preempt state remedies in the name of "uniformity."
447 U.S. at 726.  It is at least as clear that the 1972 amendments
were not designed to deny maritime employees the Jones Act remedy to
which they were previously entitled.  /13/

   C. This Court's Decisions Construing the 1972 Amendments Do Not
Support Petitioner's Position

   Contrary to petitioner's contentions (Pet. Br. 20-25), this Court's
prior decisions construing the 1972 amendments do not support a
different reading of the statute or its legislative history.
Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977), held
that a worker who checked and marked cargo at a pier, and a terminal
laborer who loaded and unloaded containers, barges, and trucks, were
covered by the LHWCA. Similarly, P.C. Pfeiffer Co. v. Ford, 444 U.S.
69, 83 (1979), held that employees who performed the "intermediate
steps of moving cargo between ship and land transportation" were
engaged in maritime employment.  Id. at 82.  The Court's central
concern in both Caputo and Ford was to interpret the status
requirement in a way that eliminated Congress's "concern( ) that some
workers might walk in and out of (federal) coverage" depending upon
the fortuity of whether they worked on land or water.  Ford, 444 U.S.
at 83 n.18.  Congress's decision to eliminate the significance of the
Jensen line for land-based workers does not imply a decision to
restrict the remedies available to seamen.  On the contrary, as the
Court noted in Caputo, 432 U.S. at 264 n.22, Congress retained the
express exclusion for crew members.

   In Director, OWCP v. Perini North River Associates, 459 U.S. 297
(1983), the Court refused to revive the "maritime but local"
distinction to mark a dividing line between federal and state
compensation systems.  The Court found nothing in the 1972 amendments
or their legislative history to "indicate that Congress intended to
withdraw coverage from employees injured on the navigable waters in
the course of their employment as that coverage existed before the
1972 Amendments." Id. at 325.  The Court was careful to note that a
worker injured on navigable waters "satisfies the status requirement
in Section 2(3), and is covered under the LHWCA, providing, of course,
that he * * * is not excluded by any other provision of the Act." Id.
at 324.  /14/

   III. PETITIONER'S POLICY-BASED ARGUMENTS ARE UNPERSUASIVE

   Petitioner argues (Pet. 8) that the court of appeals' decision will
impose "an unreasonable economic burden" on financially troubled
employers.  The short answer to this argument, as well as to
petitioner's other policy-based arguments, is that it cannot alter the
plain language of the LHWCA.  In any event, petitioner's policy
arguments fail on their own merits.

   A. The Court of Appeals' Decision Will Not Lead to Double
   Recoveries

   Petitioner states (Pet. Br. 12) that the court of appeals' decision
"allows an injured worker to possibly receive both a jury award and a
LHWCA remedy, despite Congress' intention that he receive one or the
other, but not both." If petitioner is suggesting that there may be a
double recovery, the suggestion is flatly wrong.  Any benefits paid by
an employer under the LHWCA are credited against a subsequent Jones
Act award.  See Simms v. Valley Line Co., 709 F.2d 409, 412 n.3 (5th
Cir. 1983);  4 A. Larson, Workmen's Compensation Law Section 90.51(a),
at 16-508 to 16-509 & n.86 (1990) (collecting cases).  Because the
LHWCA and Jones Act are mutually exclusive, "(n)o problem of double
recovery is involved:  the compensation payments (under the LHWCA)
will be routinely deducted from the damage recovery if the Jones Act
action is successful." G. Gilmore & C. Black, The Law of Admiralty
Section 6-52, at 435 (2d ed. 1975).  Cf. Sun Ship, Inc. v.
Pennsylvania, 447 U.S. 715, 725 n.8 (1980) ("Of course, there is no
danger of double recovery under concurrent (federal and state)
jurisdiction since employers' awards under one compensation scheme
would be credited against any recovery under the second scheme.").
Moreover, Section 3(e) of the LHWCA provides that any amounts paid to
an employee "pursuant to" the Jones Act "shall be credited against any
liability imposed" under the LHWCA.  33 U.S.C. 903(e).

   Petitioner also argues (Pet. Br. 5) that the court of appeals'
decision will compel employers to insure maritime employees under both
the LHWCA and Jones Act.  Since employees are not entitled to double
recovery, it is not clear why employers should be required to pay full
insurance premiums for coverage under both statutes.  But in any
event, this Court rejected a similar argument in Sun Ship, Inc. v.
Pennsylvania, 447 U.S. 715 (1980), in the context of state workers'
compensation remedies.  The Court noted that "(t)he line that
circumscribes the jurisdictional compass of the LHWCA -- a compound of
'status' and 'situs' -- is not less vague than its counterpart in the
pre-'twilight zone' Jensen era." Id. at 725.  Similarly, it may be
difficult to determine in advance whether a particular employee falls
within one of the LHWCA's occupations.  See, e.g., Sharp v. Wasau Ins.
Co., 917 F.2d 885, 887 (5th Cir. 1990) (rejecting determination that
injured employee was a longshoreman).  Thus, even under petitioner's
approach, employers often could not rule out the possibility of Jones
Act liability.

   B. Under Established Principles of Issue Preclusion, Only an
Adjudication Under the LHWCA That an Employee Is Not a Crew Member
Precludes Litigation of a Jones Act Claim

   Petitioner implies (Pet. Br. 9), and its amicus Shipbuilders
Council of America expressly argues (Br. 21-23), that an employee's
receipt of benefits under the LHWCA should preclude any subsequent
litigation under the Jones Act.  Under established principles of issue
preclusion, however, respondent's acceptance of voluntary LHWCA
payments does not preclude subsequent litigation of his Jones Act
claim.  Only if the question is actually litigated, and it is
adjudicated that an employee is not a crew member, is the employee
precluded from litigating a Jones Act claim.  See, e.g., Boatel, Inc.
v. Delamore, 379 F.2d at 855;  4 A. Larson, supra, Section 90.51(c),
at 16-519.  See generally Restatement (Second) of Judgments Section 27
(1982).  It is in this sense that the LHWCA is not "a stepping stone
on the way to a jury award." Fontenot v. AWI, Inc., 923 F.2d 1127,
1133 & n.41 (5th Cir. 1991) (citing Kremer v. Chemical Constr. Corp.,
456 U.S. 461, 480-482 (1982)).  To go beyond the rules of issue
preclusion in this context, and to apply some more draconian
election-of-remedies rule to bar Jones Act relief, would be wholly
inappropriate.  As a leading commentator has observed, it "would
undermine and prejudice the operation of this protective public
program if the claimant were put in the position of risking the loss
of other valuable rights, such as those under the Jones Act, by the
mere fact of accepting or invoking this basic system of compensation"
under the LHWCA.  4 A. Larson, supra, Section 90.51(b), at 16-512.

   In accordance with these principles, it is "universally accepted"
that an employee who receives voluntary payments under the LHWCA, see
33 U.S.C. 914(a), 20 C.F.R. 702.231, is not barred from subsequently
seeking relief under the Jones Act.  4 A. Larson, supra, Section
90.51(a), at 16-507.  See, e.g., Simms v. Valley Line Co., 709 F.2d
409 (5th Cir. 1983);  Robertson v. Donovan, 219 F. Supp. 364 (E.D. La.
1963);  Lawrence v. Norfolk Dredging Co., 194 F. Supp. 484 (E.D. Va.
1961);  Chesser v. General Dredging Co., 150 F. Supp. 592 (S.D. Fla.
1957).  Similarly, if a claim under the LHWCA is not adjudicated, the
claimant is not precluded from seeking Jones Act relief.  Boatel, Inc.
v. Delamore, 379 F.2d 850 (5th Cir. 1967);  Wilkes v. Mississippi
River Sand & Gravel Co., 202 F.2d 383 (6th Cir.), cert. denied, 346
U.S. 817 (1953);  Oliver v. Ocean Drilling & Exploration Co., 222 F.
Supp. 843 (W.D. La. 1963);  Boyles v. Humble Oil & Refining Co., 209
F. Supp. 857 (E.D. La. 1962).  Absent an adjudication that satisfies
the prerequisites for issue preclusion, there is nothing "sinister"
about an employee who accepts benefits under the LHWCA and then
proceeds to litigate a Jones Act claim.  Boatel, Inc. v. Delamore, 379
F.2d at 854.

   C. Petitioner's "Primary Jurisdiction" Argument Is Without Merit

   Petitioner advances the novel proposition (Pet. Br. 40-45) that,
where an employee is arguably covered by the LHWCA, the district court
should "stay the Jones Act proceeding until the plaintiff has obtained
a final LHWCA agency determination that he is a 'master or member of a
crew,' i.e., a Jones Act 'seaman.'" Id. at 44.  We believe this
argument is not fairly embraced within the question presented for
review, which is addressed to whether those in the enumerated
occupations are per se excluded from Jones Act coverage.  See Sup. Ct.
R. 24.1(a).  But in any event, the argument is without merit.

   Petitioner relies (Br. 44 n.155) on the exclusive remedy provision
of the Federal Employees Compensation Act (FECA), 5 U.S.C. 8116(c).
Petitioner is correct that, where there is a substantial question of
coverage under FECA, the courts will stay or dismiss an action under
the Federal Tort Claims Act (FTCA), 28 U.S.C. 2671 et seq., until the
Department of Labor determines whether FECA applies.  See, e.g.,
DiPippa v. United States, 687 F.2d 14, 20 (3d Cir. 1982);  Avasthi v.
United States, 608 F.2d 1059, 1060 (5th Cir. 1979).  But petitioner is
incorrect in drawing an analogy between the FECA/FTCA relationship and
the LHWCA/Jones Act relationship.  FECA -- unlike the LHWCA --
contains an "unambiguous and comprehensive" provision barring any
judicial review of the Secretary's determination of FECA coverage.
Lindahl v. OPM, 470 U.S. 768, 780 (1985).  /15/ Thus, the courts have
no jurisdiction over FTCA claims where the Secretary of Labor
determines that FECA applies to the alleged injury.  Grijalva v.
United States, 781 F.2d 472, 474 (5th Cir.), cert. denied, 479 U.S.
822 (1986);  Heilman v. United States, 731 F.2d 1104, 1109-1110 (3d
Cir. 1984);  DiPappa, 687 F.2d at 16.

   In the LHWCA/Jones Act context, in contrast, Congress has assigned
no such dominating role to the Secretary of Labor.  The LHWCA contains
no bar to judicial review, but instead provides for resolution of
factual disputes by ALJs, review by the Benefits Review Board and,
thereafter, by the courts of appeals.  33 U.S.C. 919(d), 921(b).
South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251 (1940), on
which petitioner relies (Pet. Br. 41), stands only for the proposition
that a fact-finder's determination of crew-member status must be
accepted if it is supported by substantial evidence.  See, e.g.,
Norton v. Warner Co., 321 U.S. at 571-573 (overturning deputy
commissioner's determination that a bargeman was not a seaman).  Thus,
there is nothing anomalous about having a jury decide seaman status
under the Jones Act.

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   DAVID L. SHAPIRO

      Deputy Solicitor General

   ROBERT A. LONG, JR.

      Assistant to the Solicitor General

   ROBERT P. DAVIS

      Solicitor of Labor

   ALLEN H. FELDMAN

      Associate Solicitor

   KERRY L. ADAMS

      Counsel for Appellate Litigation

   DEBORAH GREENFIELD

      Attorney Department of Labor

   MAY 1991

   /1/ Respondent characterizes these structures as "barges." Br. in
Opp. 6.  The district court characterized them as "floating
platforms," Pet. App. I-2, and as "barge floats," id. at III-9.
Petitioner itself has referred to one of the structures as a "pontoon
barge." J.A. V-2.

   /2/ The LHWCA provides for two methods of receiving compensation.
The employer must pay benefits "periodically, promptly and directly *
* * without an award" unless it controverts its liability for such
compensation.  33 U.S.C. 914(a).  See also 20 C.F.R. 702.211, 702.231.
 If the employer controverts the employee's right to compensation, the
deputy commissioner must take action to "protect the rights of all
parties." 33 U.S.C. 914(d).  The deputy commissioner may dispose of
the case informally, see 20 C.F.R. 701.301(7), 702.311-315, or by
issuing a formal compensation order with the consent of the parties,
20 C.F.R. 702.315.  In cases that require an evidentiary hearing, see
33 U.S.C. 914(h);  20 C.F.R. 702.316, 702.351, an administrative law
judge issues a final decision and order.  20 C.F.R. 702.348.  In this
case, petitioner voluntarily paid respondent benefits under the LHWCA.
 Consequently, there was no compensation order or adjudication of
respondent's entitlement to benefits under the LHWCA.

   /3/ This sentence is misquoted at Pet. App. II-6.

   /4/ Wilander generally approved the Fifth Circuit's test for
determining seaman status, which focuses on whether an employee was
"assigned permanently to a vessel (including special purpose
structures not usually employed as a means of transport but designed
to float on water)" and whether the employee "contributed to the
function of the vessel or the accomplishment of its mission." Offshore
Co. v. Robison, 266 F.2d 769, 779 (1959) (Wisdom, J.);  see also
Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1073 (1986) (en
banc).

   /5/ Petitioner (Pet. Br. 45-48) and its amicus (Shipbuilders
Council Br. 17-20) contend that, as a matter of law, respondent lacked
sufficient connection to a vessel in navigation to qualify for seaman
status.  This contention is not within the question on which the Court
granted certiorari.  See Sup. Ct. R. 24.1(a).  In any event, we
believe that the question whether respondent's special-purpose
structures may be "vessels" is properly one to be determined as a
question of fact.  The courts of appeals have held that a "vessel" can
be virtually any structure that has as its purpose and business, to
some reasonable degree, "the transportation of passengers, cargo, or
equipment from place to place across navigable waters." Johnson v.
John F. Beasley Constr. Co., 742 F.2d 1054, 1063 (7th Cir. 1984)
(quoting Bennett v. Perini Corp., 510 F.2d 114, 116 (1st Cir. 1975),
cert. denied, 469 U.S. 1211 (1985)).  See also Cook v. Belden Concrete
Prods., Inc., 472 F.2d 999, 1001 (5th Cir.), cert. denied, 414 U.S.
868 (1973);  Producers Drilling Co. v. Gray, 361 F.2d 432, 437 (5th
Cir. 1966).  In addition, this Court has generally taken an expansive
view of what constitutes a "vessel." See Norton v. Warner Co., 321
U.S. 565, 571 (1944);  Senko v. LaCrosse Dredging Corp., 352 U.S. 370,
372 (1957);  Gianfala v. Texas Co., 350 U.S. 879, rev'g 222 F.2d 382
(5th Cir. 1955);  Herb's Welding, Inc. v. Gray, 470 U.S. 414, 416 n.2
(1985).  See also 1 U.S.C. 3.

   Similarly, the question whether respondent had the requisite
connection to vessels in navigation is, in our view, one to be
determined by the trier of fact.  Respondent alleged that he was
"permanently assigned" to a "group of vessels" J.A. IV-3.  A seaman
need not have an invariable connection to a single vessel.  Ardoin v.
J. Ray McDermott & Co., 641 F.2d 277, 281 (5th Cir. 1981) (collecting
cases).  And contrary to the suggestion of the Shipbuilders Council
(Br. 17), seaman status has never turned on whether the employee
sleeps aboard the vessel.  See, e.g., Senko, 352 U.S. at 372;
Gianfala, 350 U.S. 879;  Ardoin, 641 F.2d at 282 ("(M)erely sleeping
and eating aboard a support vessel while working on a fixed platform
does not make one a seaman * * *.  Nor does a failure to do so deprive
one of seaman's status.").

   /6/ In a subsequent case, the Fifth Circuit granted rehearing en
banc to address the tension between Robison and Pizzitolo, but the
parties subsequently settled the case.  Legros v. Panther Services
Group, Inc., 863 F.2d 345 (1988), reh'g en banc granted, 863 F.2d 355,
appeal dismissed, 874 F.2d 954 (1989).  See Chauvin v. Sanford
Offshore Salvage, Inc., 868 F.2d 735, 739 n.14 (5th Cir. 1989).  In
addition, the Fifth Circuit has tended to analyze cases under both
Robison and Pizzitolo in order to verify that the outcome is the same
under both approaches.  See, e.g., Leonard v. Dixie Well Service &
Supply, Inc., 828 F.2d 291 (1987);  Thibodeaux v. Torch, Inc., 858
F.2d 1048, 1050 (1988).

   /7/ Petitioner does not suggest that the other express exclusions
of Section 2(3) -- such as the exclusion for "individuals employed by
a club, camp, recreational operation, restaurant, museum, or retail
outlet," 33 U.S.C. 902(3)(B), or for "individuals employed to build,
repair, or dismantle any recreational vessel under sixty-five feet in
length," 33 U.S.C. 902(3)(F) should be so ignored.

   /8/ Courts look to actual job content rather than job title under
other remedial statutes designed to protect workers.  See, e.g.,
Brennan v. Western Union Tel. Co., 561 F.2d 477 (3d Cir. 1977), cert.
denied, 434 U.S. 1063 (1978) (Fair Labor Standards Act of 1938, 29
U.S.C. 201 et seq.);  Hodgson v. The Klages Coal & Ice Co., 435 F.2d
377 (6th Cir.) (same), cert. denied, 412 U.S. 973 (1970);  Forsberg v.
Pacific N.W. Bell Tel. Co., 840 F.2d 1409 (9th Cir. 1988) (Equal Pay
Act of 1963, 29 U.S.C. 206(d));  Epstein v. Secretary, United States
Dep't of Treasury, 739 F.2d 274 (7th Cir. 1984) (same);  Fountain v.
Metcalf, Zima & Co., 925 F.2d 1398 (11th Cir. 1991) (Age
Discrimination in Employment Act of 1967, 29 U.S.C. 621).  An
exclusive focus on job title would allow employers to affect coverage
determinations by manipulating job titles.

   /9/ Contrary to petitioner's assertion (Pet. Br. 5), Section 5(a)
of the LHWCA (the "exclusivity provision") does not itself provide
that all maritime employees engaged in enumerated occupations are
covered by the LHWCA.  Section 5(a) provides only that, where the
LHWCA applies, it is exclusive;  it says nothing about the scope of
the LHWCA.

   /10/ In the course of its deliberations on the 1972 amendments,
Congress rejected S. 1547, 92d Cong., 1st Sess. (1971), a bill that
would have made the LHWCA the exclusive remedy for offshore oil
workers.  See Longshoremen's and Harbor Workers' Compensation Act
Amendments of 1972:  Hearings on S. 2318, S. 525, S. 1547 Before the
Subcomm. on Labor of the Senate Comm. on Labor and Public Welfare, 92d
Cong., 2d Sess. 418-420 (1972) (statement of Joseph M. Shelton);  id.
at 602 (statement of John R. Martzell).  The bill was opposed on the
ground that it would relegate an entire class of workers traditionally
treated as crew members to the less advantageous remedy available
under the LHWCA.  See id. at 589-590 (statement of Maritime Trades
Dep't, AFL-CIO).  See also Herb's Welding, Inc., 470 U.S. at 420 n.5.

   /11/ Petitioner's reliance (Pet. Br. 37-39) on the 1984 amendments
to the LHWCA is similarly misplaced.  The 1984 amendments prohibit
negligence actions by ship repairmen, ship builders, and ship-breakers
(but not longshore workers) against employers who happen to own the
vessel on which they are injured.  See H.R. Rep. No. 570, 98th Cong.,
1st Sess. Pt. 1, at 7 (1983).  Because the 1984 amendments do not bar
negligence actions against employer-owners, the amendments do not
reflect an across-the-board intent to limit the employer's liability.
In any event, the 1984 amendments concern only the remedies available
to employees covered by the LHWCA.  They do not affect the definition
of a covered employee.

   /12/ It is true that the LHWCA, like most workers' compensation
statutes, struck a balance between the interests of workers and their
employers.  See Morrison-Knudsen Constr. Co. v. Director, OWCP, 461
U.S. 624, 635-636 (1983).  But the balance was not struck to the
detriment of Jones Act seamen.  On the contrary, Congress expressly
excluded crew members from the scope of the LHWCA.

   /13/ We recognize that the court of appeals' decision would leave
one category of employees -- crew members whose employers are not
negligent -- without a remedy under either the Jones Act or the LHWCA.
 But this is simply a consequence of providing the same treatment for
all maritime employees who meet the "seaman status" test for coverage
under the Jones Act.  We also note that the Jones Act generally has
not been held to require seamen to show a high degree of negligence,
see, e.g., Bennett v. Perini Corp., 510 F.2d 114, 117-118 (1st Cir.
1975), and that a seaman unable to establish liability under the Jones
Act may nevertheless be able to pursue claims for unseaworthiness
(which does not require proof of negligience, see Seas Shipping Co. v.
Sieracki, 328 U.S. 85 (1946)), or for maintenance and cure.

   /14/ Contrary to petitioner's contention (Pet. Br. 24 n.85), Perini
does not conflict with Wilander, because there was no evidence that
the injured worker had the requisite connection to a vessel to qualify
as a Jones Act seaman.

   /15/ Section 8128(b) provides that

      (t)he action of the Secretary or his designee in allowing or
      denying a payment under (FECA) is -- (1) final and conclusive
      for all purposes and with respect to all questions of law and
      fact;  and (2) not subject to review by another official of the
      United States or by a court by mandamus or otherwise.

In addition, the Secretary is to decide all questions "arising under"
FECA.  5 U.S.C. 8145.