IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-30782

 

SAM GREEN

Plaintiff-Appellant,

versus

VERMILION CORPORATION

Defendant-Appellee.

 

Appeal from the United States District Court

for the Western District of Louisiana

 

June 18, 1998

Before WISDOM, JOLLY, and HIGGINBOTHAM, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

We are called to interpret a heretofore unconstrued provision

of the Longshore and Harbor Workers Compensation Act, viz., the

“club/camp” exclusion delineated at 33 U.S.C. § 902(3)(B). Our

reading of the statute and its legislative history compels us to

conclude that Green falls into the category of employees for which

Congress drafted the “club/camp” exception. We AFFIRM the judgment

of the district court denying LHWCA coverage to Green. We REVERSE

the judgment of the district court dismissing Green’s general

maritime negligence and unseaworthiness claims and REMAND for

further proceedings.
2

I

The Vermilion Corporation employed Green at a “duck camp” it

operated pursuant to its contract with the Bayou Club. The camp is

located on marsh land near a private canal off a bayou. Besides a

duck camp, Vermilion uses the post as a “headquarters” for its

operations in this area, which include harvesting and selling

alligator eggs, trapping and selling alligators, fur trapping,

shrimping, and rice farming.

During duck season, which is approximately three months long,

Green worked as both a cook and watchman at the camp. During the

rest of the year, Green served as a watchman, performed general

maintenance on the camp and usually cooked a lunch meal for any

Vermilion employees working in the area. Green worked only at the

camp and was required to stay there from Monday at 8:00 a.m. to

noon on Friday, except for duck season when his hours were longer.

Green got to the camp via a boat and usually brought a week’s worth

of groceries with him on Monday morning. Green also occasionally

assisted in mooring and unloading supply boats that docked at the

camp.

On May 10, 1994, Lee Guidry, a Vermilion employee, was

piloting THE M/V GADWALL, a vessel under eighteen tons net. Guidry

radioed Green at the camp and asked him to assist in tying up the

vessel and in unloading supplies and equipment. While mooring the

vessel, Green boarded THE M/V GADWALL, slipped and fell on the

deck. Green sustained injuries to his neck and back.
3

Green filed suit against Vermilion alleging claims under the

LHWCA and general maritime law for negligence and unseaworthiness.

The district court first granted Vermilion’s motion for summary

judgment dismissing Green’s LHWCA claim because Green fell under

the “vessel under eighteen tons net” employee exception. Then,

after further briefing by the parties, the district court granted

Vermilion’s motion for summary judgment and reconsideration,

holding that Green was excluded from LHWCA coverage by the

“club/camp” employee exception. The district court dismissed the

remainder of Green’s claims on the grounds that the Louisiana

Worker’s Compensation Act was his exclusive remedy.

Green timely appealed the district court’s judgments. We have

jurisdiction under 28 U.S.C. § 1291.

II

This court reviews a grant of summary judgment de novo

applying the same standard as did the district court. Dawkins v.

Sears Roebuck & Co., 109 F.3d 241, 242 (5th Cir. 1997).

In order to qualify for coverage under the LHWCA, a worker

must pass both a situs and a status test. Director v. Perini North

River Assocs., 459 U.S. 297, 314 (5th Cir. 1983). Green satisfies

the situs test since he was injured upon navigable waters. See id.

With respect to the status test, we will assume arguendo that Green

was engaged in “maritime employment”, see 33 U.S.C. § 902(3);

Randall v. Chevron U.S.A., Inc., 13 F.3d 888, 897 (5th Cir.), cert.
1The parties agree that Green falls within the purview of the

Louisiana Workers’ Compensation Act.

4

denied, 513 U.S. 994 (1994), since we think it clear that he falls

within the “club/camp” exclusion from LHWCA coverage.

There are exceptions to the term “employee” under the LHWCA.

See 33 U.S.C. § 902(3)(A)-(H). In particular, § 902(3)(B)

provides:

The term “employee” means any person engaged in maritime

employment, . . . but such term does not include-

. . . .

(B) individuals employed by a club, camp,

recreational operation, museum, or retail

outlet;

. . . .

if individuals described in clauses (A) through (F) are

subject to coverage under a State workers’ compensation

law.1 Id.

Interpretation of this provision is an issue of first impression in

this circuit.

The district court held that Green fell within the “club/camp”

exclusion because he performed all of his duties at the duck camp.

The lower court found unpersuasive Green’s argument that he was

employed “by” the Vermillion Corporation, not a camp, since that

construction of § 902(3)(B) renders the exception meaningless in

today’s world of business organizations.

Green repeats this argument to us. Green contends that

interpretation of § 902(3)(B) is controlled by the nature of the

employer’s business and not the employee’s activities. For

support, Green points to the House Document accompanying the 1984
5

Amendments that added the “club/camp” exception to the LHWCA. The

House Document states that the “exclusions from the definition of

‘employee’ contained in the amendments . . . are intended to be

narrowly construed” and that paragraph (B) excludes employees

“because of the nature of the employing enterprise, as opposed to

the exclusions in paragraph [(A)], which are based on the nature of

the work which the employee is performing.” H. R. Doc. No. 98-570,

Part I 98th Cong., 2nd Sess. 1984 U.S.C.C.A.N. (98 Stat. 1639)

2734, 2736. Because Vermillion is involved in sundry business

ventures, including maritime activities, Green claims that his

employer was a multi-faceted corporation, not a “camp.”

“As with any statutory question, we begin with the language of

the statute.” In re Greenway, 71 F.3d 1177, 1179 (5th Cir.), cert.

denied, 517 U.S. 1244 (1996). Green makes much of Congress’s use

of “by” in the statute and notes that Congress did not use the

phrase “employed at a club [or] camp.” Contrary to Green, we do

not think that the word “by” bears such weight. Rather, the key

words in the provision are those designating the concerns the

employees of which are excluded from LHWCA coverage (e.g., club,

camp, restaurant, museum). Under this focus, it is evident that

Green worked exclusively to further an operation which comports

with the plain meaning of the terms “camp” and “club.” The

Vermillion facilities had all the trappings of a typical southern

Louisiana hunting camp. See R. Vol. 2 at 281. Though it used the

camp throughout the year, the primary reason Vermillion maintained
6

the facility was to fulfill its contractual obligation to the Bayou

Club to provide a duck camp for the waterfowl hunting season. In

fact, a Vermilion officer testified that but for the lease to the

Bayou Club, Vermillion would not have conducted any of its

operations from this site and would not have had any need for

Green’s services. See R. Vol. 2 at 287-88. Since Green was

employed solely to render services to promote and maintain a duck

camp, we hold that he is excluded from LHWCA coverage under §

902(3)(B).

Green’s reliance upon the legislative history of the 1984

Amendments does not alter our conclusion. Unlike Green, we do not

believe that in construing the “club/camp” exception, we are

limited to considering only the nature of the employer’s

enterprise. The House Document to which Green refers expressly

states that businesses falling under paragraph (B) may have

employees that should remain covered under the Act “because of the

nature of the work which they do, or the nature of the hazards to

which they are exposed.” H. R. Doc. No. 98-570, Part I 98th Cong.,

2nd Sess. 1984 U.S.C.C.A.N. (98 Stat. 1639) 2737. By the same

token, we believe the opposite is true- clubs and camps may employ

individuals who should not be covered under the LHWCA because their

job responsibilities do not, or only minutely, involve maritime

activities and they are not exposed to hazards associated with

traditional maritime activities. The record reflects that Green’s

duties were to be a cook, watchman, and general repairman of the
7

camp buildings. We do not consider Green to be an employee for

which LHWCA benefits were intended.

III

Even if he is not entitled to LHWCA benefits, Green argues

that the district court erred in dismissing his general maritime

claims against Vermilion for negligence and unseaworthiness.

Vermilion disagrees based on its belief that the Louisiana Workers’

Compensation Act is Green’s exclusive remedy.

A

The first step in our analysis of this issue is to determine

whether there is admiralty jurisdiction. Admiralty jurisdiction

requires that the tort have a maritime locality and that “the facts

and circumstances of the claim must bear a significant relationship

to traditional maritime activity.” Thibodaux v. Atlantic Richfield

Co., 580 F.2d 841, 846 n.14 (5th Cir. 1978), cert. denied, 442 U.S.

909 (1979). The situs test is met because Green was injured while

on navigable waters. See Kelly v. Smith, 485 F.2d 520, 525 (5th

Cir. 1973), cert. denied, 416 U.S. 969 (1974). To determine

whether there is a sufficient nexus to maritime activity, we

examine four factors: the functions and roles of the parties; the

types of vehicles and instrumentalities involved; the causation and

the type of injury; and traditional concepts of the role of

admiralty law. See Kelly, 485 F.2d at 525. In applying this test,

we have noted that “[a]dmiralty has traditionally been concerned

with furnishing remedies for those injured while traveling
8

navigable waters”, id. at 526, and that “the relationship to

traditional maritime activity required for the invocation of

admiralty jurisdiction” may be present though “the threshold

requirement of maritime employment necessary to establish coverage

under the LHWCA” may not be met. Thibodaux, 580 F.2d at 846.

Applying the four factors, we find that Green was injured in

the course of his employment while performing the traditional

maritime activity of mooring a vessel; Vermilion owned the vessel

on which Green fell; the vehicle involved was a vessel routinely

employed on navigable waters; the alleged cause of Green’s injury

was an unkept deck; Green’s injury was not uncommon in the maritime

context; and “upholding maritime jurisdiction does not stretch or

distort long evolved principles of maritime law,” Kelly, 485 F.2d

at 526, since federal courts have long recognized unseaworithiness

and general maritime negligence claims. These facts provide a

sufficient nexus to maritime activity for us to assert admiralty

jurisdiction over this case. See King v. Universal Elec. Constr.

Corp., 799 F.2d 1073, 1075 (5th Cir. 1986); Thibodaux, 580 F.2d at

846 n.14; Kelly, 485 F.2d at 526.

B

With respect to the merits, we note that an earlier panel of

this court was “squarely presented with the issue of whether an

exclusive remedy provision in a state workmen’s compensation

statute can operate to deprive a party of a cause of action

afforded by federal maritime law.” Thibodaux, 580 F.2d at 846.
9

The panel in that case concluded that relevant Supreme Court and

Fifth Circuit precedent made “it clear that an exclusive remedy

provision in a state workmen’s compensation law cannot be applied

when it will conflict with maritime policy and undermine

substantive rights afforded by federal maritime law.” Id. at 847.

Thus, the court specifically held that “the exclusive remedy

provision of the Louisiana Workmen’s Compensation Act” does not

preclude a plaintiff from pursuing a claim for wrongful death

occasioned in state territorial waters since the Supreme Court had

expressly recognized such a suit under admiralty jurisdiction. Id.

at 847; see also Moragne v. States Marine Lines, 398 U.S. 375

(1970) (creating wrongful death claim in admiralty law). A later

panel of this court strengthened Thibodaux by holding that

irrespective of whether the defendant in the maritime tort suit is

the plaintiff’s “statutory employer,” like in Thibodaux, or his

“actual employer,” federal maritime law overrides the exclusive

remedy provision of the Louisiana Workers’ Compensation Act in each

case. See King, 799 F.2d at 1074.

The Eleventh Circuit appears to have charted a different

course as it barred a plaintiff from asserting a negligence claim

under general maritime law where an exclusivity provision of a

state workers’ compensation scheme applied. See Brockington v.

Certified Elec., Inc., 903 F.2d 1523, 1533 (11th Cir. 1990), cert.

denied, 498 U.S. 1026 (1991). That circuit distinguishes Thibodaux

and King on the grounds that they apply only to wrongful death
10

actions, a tort for which the Supreme Court expressly recognized

admiralty jurisdiction in order to provide national uniformity. We

are not persuaded that the Eleventh Circuit ruling conflicts with

our precedent with respect to a plaintiff’s ability to assert a

unseaworthiness claim in the face of an exclusive remedy provision

of a state workers’ compensation statute.

Though Thibodaux and King involved wrongful death claims,

their holdings were based on the Supreme Court’s pronouncement that

“‘[w]hile states may sometimes supplement federal maritime

policies, a state may not deprive a person of any substantial

admiralty rights as defined in controlling acts of Congress or by

interpretative decisions of this Court.’” Thibodaux, 580 F.2d at

846 (quoting Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409-10

(1953)). As the Eleventh Circuit admitted in Brockington, the

Supreme Court has expressly authorized a claim for unseaworthiness

in admiralty jurisdiction. See Seas Shipping Co. v. Sieracki, 328

U.S. 85 (1946); Brockington, 903 F.2d at 1531. That

unseaworthiness is a “right peculiar to the law of admiralty”

allowed the Brockington court to distinguish this court’s opinion

in Brown v. ITT Rayonier, Inc., 497 F.2d 234 (5th Cir. 1974), which

“disregard[ed] the state worker’s compensation statute in favor of

permitting an action in general maritime law,” from the case before

it in which the plaintiff was asserting a negligence claim.

Brockington, 903 F.2d at 1531. Since both the wrongful death claim

alleged in Thibodaux and King and the unseaworthiness claim
11

asserted here and in Brown trace their lineage to Supreme Court

explications of admiralty law, we see no reason to give one more

preemptive force than the other. With this principle, we think the

Eleventh Circuit would agree. Thus, following the principles

established in Thibodaux and King, we hold that the exclusive

remedy provision of the Louisiana Workers’ Compensation Act does

not preclude Green from asserting his claim for unseaworthiness.

Our holding is supported by the history of the LHWCA and its

treatment of Sieracki claims. In enacting the 1972 Amendments to

the LHWCA, Congress increased the statutory benefits to

longshoremen in exchange for the termination of their claims for

breach of the warranty of seaworthiness. See 33 U.S.C. § 905(a);

Aparicio v. Swan Lake, 643 F.2d 1109, 1117 (5th Cir. 1981). We

have held, however, that longshoremen who are not entitled to LHWCA

benefits may still pursue their general maritime claims against the

vessel owner because they did not receive the benefits of the

bargain of the 1972 Amendments. See id. at 1118 (recognizing

“pockets of Sieracki seamen remaining after the 1972 amendments” to

the LHWCA); Cormier v. Oceanic Contractors, Inc., 696 F.2d 1112,

1113 (5th Cir.) (Higginbotham, J.) (following Aparicio that § 905

“did not deny the warranty of seaworthiness to workers not covered

by the LHWCA”), cert. denied, 464 U.S. 821 (1983). Vermilion seeks

to distinguish these cases on the ground that they did not involve

a situation, like in the instant case, where the longshoreman was

entitled to benefits under a state workers’ compensation scheme
2In so ruling, we do not intimate on the merits of Green’s

claim.

12

which made the state compensation benefits the employee’s exclusive

remedy against his employer, including any claim under a dual

capacity theory. See La. Rev. Stat. § 23:1032(A) (Supp. 1998).

We find Vermillion’s distinction nebulous. Though Green is

entitled to seek relief under the Louisiana Workers’ Compensation

Act, that option is not exclusive. See Sun Ship, Inc. v.

Pennsylvania, 447 U.S. 715, 722 (1980) (finding concurrent federal

and state jurisdiction for maritime employees covered by both the

LHWCA and a state workers’ compensation scheme) The 1972

Amendments to the LHWCA, “which Congress enacted to abolish the

Sieracki remedy, [do] not apply to maritime workers who are not

within the coverage of the LHWCA.” Aparicio, 643 F.2d at 1116.

Where the LHWCA does not apply, we refuse to expose maritime

workers to the variegated state workers’ compensation schemes,

especially where Congress has expressly found that “most State

Workmen’s Compensation laws provide benefits which are inadequate.”

H.R. Doc. 92-1441, 92th Cong., 2nd Sess. 1972 U.S.C.C.A.N. 4698,

4707; see also Sun Ship, 447 U.S. at 723 n.5. Green may pursue his

Sieracki claim against Vermillion despite the availability of

relief under the Louisiana Workers’ Compensation Act.2

This court’s decision in Kent v. Shell Oil Co., 286 F.2d 746

(5th Cir. 1961), does not require a contrary result. In that case,

Kent, a truck driver who performed all of his job duties on land,
13

was injured while unloading pipe from a truck onto a barge. See

id. at 748-49. Kent did not plead or allege a claim of

unseaworthiness until he requested a jury instruction on this

theory of liability. See id. at 749-50. The appellate court

affirmed the district court’s refusal to instruct the jury on

seaworthiness. See id. at 750. Though one of the reasons for its

decision was the presence of the exclusive remedy provision of the

Louisiana Workers’ Compensation Act, see id. at 751-52, we think

Kent is factually and legally distinct from the case at bar.

In Kent, the court gave special significance to the fact that

Kent was solely a land-based worker who did not perform any

maritime activity and was injured on land. See id. at 751. The

court analyzed the case as one involving a land tort and controlled

by local law. See id. Given the weak nexus between the facts and

circumstances of Kent’s claim with traditional maritime activity,

we doubt if admiralty jurisdiction would even lie in such a case

under our current precedent. See Kelly, 485 F.2d at 525-26. In

addition, no evidence supported Kent’s unseaworthiness claim. See

Kent, 286 F.2d at 752-53. Here, admiralty jurisdiction lies as

Green was injured upon navigable waters while performing the

traditional maritime activity of mooring a vessel in preparation

for unloading cargo. Green also presented evidence suggesting that

the deck of the vessel was in disrepair. We limit Kent, a preKelly case, to its facts and do not ascribe to it the power to

foreclose the assertion of an unseaworthiness claim where a state
14

workers’ compensation scheme purports to be a plaintiff’s exclusive

remedy.

C

We next turn to whether Green may assert his general maritime

negligence claim against Vermilion, his employer, despite the

exclusivity provision of the Louisiana Workers’ Compensation Act.

We examine Green’s general maritime negligence claim separately

from his unseaworthiness claim. A general maritime negligence

claim has a Supreme Court heritage, see Leathers v. Blessing, 105

U.S. (15 Otto) 626 (1882) (recognizing general maritime negligence

claim); Pope & Talbot, 346 U.S. 406 (same), but is not as unique to

admiralty law as unseaworthiness. See 1 Thomas J. Schoenbaum,

Admiralty and Maritime Law § 5-2 to § 5-4 (2d ed. 1994) (discussing

fundamental negligence concepts in maritime context); see also Cox

v. Esso Shipping Co., 247 F.2d 629, 637 (5th Cir. 1957)

(delineating differences between unseaworthiness and general

maritime negligence claims). In addition, states have a greater

interest in overriding negligence claims of an employee against his

employer via its workers’ compensation statute than a claim of

unseaworthiness since states enacted employment compensation

schemes to preclude precisely these types of suits. See Ellis v.

Normal Life, 638 So. 2d 422, 426-27 (La. Ct. App. 1994).

We begin our discussion by noting that the Supreme Court

admittedly has been “unable to give any guiding, definite rule to

determine the extent of state power” in the maritime field with
3Apparently the court in Brockington only unearthed the line

of Supreme Court cases giving preclusive effect to state workers’

compensation statutes since it failed to cite any of the cases

recognizing the superiority of general maritime tort claims over

state remedies. See Brockington, 903 F.2d at 1532. Since our

holding today relies heavily on this more venerable line of Supreme

Court precedent which the Eleventh Circuit did not treat, we think

the split with our sister circuit which we create today will be

short-lived.

15

respect to providing remedies to injured workers. Davis v.

Department of Labor, 317 U.S. 249, 253 (1942); see also Hahn v.

Ross Island Sand & Gravel Co., 358 U.S. 272, 274 (1959) (Stewart,

J., dissenting) (observing the Supreme Court’s struggle with

harmonizing federal and state compensation schemes in the maritime

area); Southern Pac. Co. v. Jensen, 244 U.S. 205, 216 (1916) (“[I]t

would be difficult, if not impossible, to define with exactness

just how far the general maritime law may be changed, modified, or

affected by state legislation.”). There are conflicting lines

deciding the force to be given an exclusive remedy provision of a

state workers’ compensation statute in the maritime context.3 See

Davis, 317 U.S. at 253 (listing cases).

One line of cases unequivocally holds that state workers’

compensation statutes can not preclude an employee from asserting

a general maritime negligence claim against his employer for

injuries sustained on navigable waters during the course of his

employment. See Southern Pac., 244 U.S. at 217 (holding the New

York Workers’ Compensation Act unconstitutional to the extent it

bars an employee from alleging a general maritime negligence claim
16

against his employer); Clyde S.S. Co. v. Walker, 244 U.S. 255, 257

(1916) (following Jensen); Knickerbocker Ice Co. v. Stewart, 253

U.S. 149, 163-64 (1920) (striking down Congress’s first attempt to

permit application of state workers’ compensation schemes in

maritime field because Congress may not delegate its power to

alter, amend, or revise the maritime law to the states); Washington

v. W.C. Dawson & Co., 264 U.S. 219, 227-28 (1924) (invalidating

Congress’s second attempt to incorporate state workers’

compensation statutes into federal maritime law); Gonsalves v.

Morse Dry Dock & Repair Co., 266 U.S. 171, 172 (1924) (approving

assertion of general maritime negligence claim by employee against

his employer); Robins Dry Dock & Repair Co. v. Dahl, 266 U.S. 449,

457 (1924) (finding erroneous a jury instruction which permitted

the jury to consider state law in determining whether employer was

negligent because “[t]he rights and liabilities of the parties

arose out of and depended upon the general maritime law and could

not be enlarged or impaired by the state statute”); Northern Coal

& Dock Co. v. Strand, 278 U.S. 142, 147 (1928) (reversing judgment

awarding state workers’ compensation benefits to widow of deceased

stevedore because only federal maritime law may provide remedies);

John Baizley Iron Works v. Span, 281 U.S. 222, 230-32 (1930)

(denying workers’ compensation benefits to ship repairman injured

upon navigable waters since state law may not modify rights under

admiralty law); Employers’ Liab. Assurance Corp. v. Cook, 281 U.S.

233, 236 (1930) (precluding state workers’ compensation award
17

because “State lacked power to prescribe the rights and liabilities

of the parties growing out of the accident”); Nogueira v. New York,

New Haven & Hartford R.R. Co., 281 U.S. 128, 138 (1930) (commenting

that “had the petitioner been engaged in intrastate commerce, his

case still would have been within the maritime jurisdiction of the

Federal courts, and he would have been denied the benefits of the

state compensation law”); Spencer Kellogg Co. v. Hicks, 285 U.S.

502, 513 (1932) (“The workmen’s compensation law of New Jersey, the

purpose of which was to supersede the common law redress in tort

cases and statutory rights consequent upon death by wrongful act,

and to substitute a commuted compensation for injury or death of an

employee, irrespective of fault, is not applicable to the injuries

and deaths under consideration.”).

This line of precedent is itself supported by cases refusing

to subordinate federal admiralty principles to the dictates of

state law. See e.g., The Key City, 81 U.S. (14 Wall.) 653, 660

(1871) (stating that doctrine of laches, not state statutes of

limitations, apply to suits enforcing maritime liens); Workman v.

City of New York, 179 U.S. 552, 560 (1900) (“[I]t becomes manifest

that the decisions of this court overthrow the assumption that the

local law or decisions of a State can deprive of all rights to

relief, in a case where redress is afforded by the maritime law and

is sought to be availed of in a cause of action maritime in its

nature and depending in a court of admiralty of the United

States.”); Atlantic Transp. Co. v. Imbrovek, 234 U.S. 52, 61-63
18

(1913) (recognizing admiralty jurisdiction over stevedore’s

negligence claim against employer for injuries sustained while on

navigable waters); Chelentis v. Luckenbach S.S. Co., 247 U.S. 372,

382 (1918) (“[N]o State has power to abolish the well recognized

maritime rule concerning measure of recovery and substitute

therefor the full indemnity rule of the common law.”); Union Fish

Co. v. Erickson, 248 U.S. 308, 312-14 (1919) (refusing to void

maritime contract for failure to comply with state statutes of

frauds); Kossick v. United Fruit Co., 365 U.S. 731, 742 (1961)

(same).

Other cases run directly contrary to the authorities supra as

they purport to hold that the exclusive remedy provision of a state

workers’ compensation statute precludes an employee from asserting

a general maritime negligence claim against his employer. See

Grant Smith-Porter Co. v. Rohde, 257 U.S. 469, 477 (1922)

(enforcing exclusive remedy provision of state workers’

compensation statute so as to bar any maritime claim); State Indus.

Comm’n v. Nordenholt Corp., 259 U.S. 263, 276 (1922) (affirming

award of workers’ compensation benefits to widow of longshoremen

killed while unloading a vessel on navigable waters because

employment contract was not maritime in nature); Millers’ Indem.

Underwriters v. Braud, 270 U.S. 59, 64-65 (1926) (concluding that

state workers’ compensation statute’s “exclusive features abrogate

the right to resort to the admiralty court which otherwise would

exist”); T. Smith & Son, Inc. v. Taylor, 276 U.S. 179, 181 (1928)
4The court in Brockington relies heavily on Heaney for its

holding, see Brockington, 903 F.2d at 1532, but we distinguish

Heaney from the other cases in the Grant Smith line and the case at

bar on the grounds that in Heaney the employee plaintiff did not

assert negligence on the part of his employer. See Heaney, 299

U.S. at 44.

5The Supreme Court tried to use the “maritime but local”

doctrine to establish the boundaries of LHWCA and state workers’

compensation coverage, but abandoned its efforts after such a

distinction proved unworkable. See Davis, 317 U.S. at 253-56. In

Davis, the Supreme Court charted a new course by recognizing the

19

(Louisiana workers’ compensation law provided the exclusive remedy

because the longshoreman was killed while standing on land and not

on navigable waters); Alaska Packers, Assoc. v. Industrial Accident

Comm’n, 276 U.S. 467, 468-69 (1928) (affirming award of workers’

compensation benefits as employee’s sole remedy against employer);

Sultan Ry. & Timber Co. v. Deptartment of Labor & Indus., 277 U.S.

135, 137 (1928) (rejecting constitutional attack on workers’

compensation statute requiring companies engaged in maritime

activities to pay into state fund); P.J. Carlin Constr. Co. v.

Heaney, 299 U.S. 41, 44 (1936) (refusing to allow general maritime

law claim where workers’ compensation statute applied).4

Though there is an apparent rift in precedent, the Supreme

Court harmonized its cases on the grounds that the state workers’

compensation statutes could only apply where the maritime tort

involved matters of local concern which had remote or no relation

to navigation or maritime commerce. See Baizley, 281 U.S. at 230-

31; Perini, 459 U.S. at 306 (tracing history of “maritime but

local” doctrine).5 In fact, the constant theme of these Supreme
existence of a “twilight zone” in which employees are

simultaneously covered by both the LHWCA and the state workers’

compensation scheme. Id. at 256. With the 1972 Amendments to the

LHWCA, Congress extended the realm of concurrent jurisdiction

shoreward. See Sun Ship, 447 U.S. at 720.

20

Court opinions is that the uniformity of admiralty law must be

preserved and that state law may be applied only where it works no

“material prejudice to the essential features of the general

maritime law.” Baizley, 281 U.S. at 230. That uniformity is not

to be sacrificed to accommodate state law is a fundamental premise

of admiralty jurisdiction. See Grant Gilmore & Charles L. Black,

Jr., The Law of Admiralty § 6-58 to § 6-61 (2d Ed. 1975). In one

of its earliest pronouncements on the interplay between federal and

state law in the maritime context, the Supreme Court stated:

One thing, however, is unquestionable; the Constitution

must have referred to a system of law coextensive with,

and operating uniformly in, the whole country. It

certainly could not have been the intention to place the

rules and limits of maritime law under the disposal and

regulation of the several States, as that would have

defeated the uniformity and consistency at which the

Constitution aimed on all subjects of a commercial

character affecting the intercourse of the States with

each other or with foreign states.

The Lottawanna, 88 U.S. (21 Wall.) 558, 575 (1874). This is not to

say that state law may play no part in the maritime arena; rather,

the flip side of this principle is that “[w]ith respect to maritime

torts . . . the State may modify or supplement the maritime law .

. . when the state action is not hostile to the characteristic

features of the maritime law or inconsistent with federal

legislation.” Just v. Chambers, 312 U.S. 383, 388 (1941). For
21

example, prior to its decision in Moragne, the Supreme Court

consistently gave effect to state statutes providing a wrongful

death action to the representatives of maritime workers killed

during the course of employment. See id. at 388-89; see also

Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310, 321

(1955) (leaving the regulation of marine insurance to the states).

Our review of the Supreme Court’s admiralty jurisprudence

assures us of the soundness of our earlier holdings in Thibodaux

and King. As we noted supra, Thibodaux’s holding was driven by the

Supreme Court’s decision in Pope which iterated the supremacy of

federal admiralty rights over state law mandates where uniformity

concerns were present. See Thibodaux, 580 F.2d at 846. Contrary

to the Eleventh Circuit’s view, see Brockington, 903 F.2d at 1531,

we do not read Thibodaux and King to be limited to wrongful death

actions. We see no principled basis for distinguishing between an

employee’s negligence claim against his employer for wrongful death

and an employee’s negligence claim against his employer where the

injury stops short of a fatality. The key factor is maintaining

uniformity in admiralty law and preserving the rights granted to

maritime workers, not the degree of harm the worker suffers. An

action for negligence has long been a vestige of general maritime

law; subjecting it to the ebbs and flows of state legislation would

disrupt the essential features of admiralty law. See Stanley

Morrison, Workmen’s Compensation and the Maritime Law, 38 Yale L.J.

472, 496 (1929). Fidelity to the Supreme Court’s and our own
6Our holding is consistent with the decision in Koninklyke

Nederlandsche Stoomboot Maalschappy v. Strachan Shipping Co., 301

F.2d 741 (5th Cir.), cert. denied, 371 U.S. 921 (1962), where this

court held that the exclusive remedy provision of the Texas

Workers’ Compensation Act did not bar a ship owner’s indemnity suit

against the stevedore for breach of warranty where the stevedore

had made payments under the state workers’ compensation scheme. As

with his unseaworthiness claims, we make no comment concerning the

merits of Green’s negligence claim.

22

precedent requires that we hold that the exclusive remedy provision

of the Louisiana Workers’ Compensation Act does not preclude Green

from asserting his general maritime negligence claim against

Vermilion for the non-fatal injuries he sustained during the course

of his employment while upon navigable waters.6

IV

The judgment of the district court denying Green LHWCA

benefits is AFFIRMED. The judgment of the district court

dismissing Green’s unseaworthiness and general maritime negligence

claims is REVERSED. We REMAND for proceedings not inconsistent

with this opinion.