Jan 6, 2011
- Jack Martone, The American Equity Underwriters, Inc.
Have you ever noticed that the conversations among lawyers who specialize in the Longshore Act frequently seem to consist of cryptic, single word references? The code word is usually a reference to a court case that stands for a principle of law that the lawyers are familiar with. It is usually the name of the plaintiff in the case, but not always.
Here is a lengthy, but even so, incomplete, glossary of “Longshore” cases along with the shorthand version of the principle involved. Most of these are U.S. Supreme Court cases, but there are also a few federal Circuit Courts of Appeals cases. (The typical case citation is in the format of 189 U.S. 158 (1903), with 189 being the volume number, U.S. being the name of the series of reports, in this case U.S. Supreme Court cases, 158 being the page number within the volume, and 1903 being the date the case was reported.)
The Osceola – summarized the rights of seamen in the U.S. under the general maritime law (unseaworthiness and maintenance and cure). The confirmation of the absence of a negligence remedy contributed to the passage of the “Jones Act” in 1920. (The Osceola, 189 U.S. 158 (1903))
Jensen – the “Jensen Line” established the boundary of state workers’ compensation law authority at the edge of the navigable waters of the United States. The gap in protection that it created led to the eventual passage of the Longshore Act in 1927. (Southern Pacific RR Company v. Jensen, 244 U.S. 205 (1917))
Davis – recognized the existence of a coverage “twilight zone” between the Longshore Act and state act workers’ compensation laws. (Davis v. Department of Labor, 317 U.S. 249 (1942))
Cardillo – established the “last responsible employer” rule in occupational disease cases. (Travelers Insurance Co. v. Cardillo, 225 F.2nd 137 (2nd Cir. 1955))
Caputo – repudiated the “moment of injury” test in Longshore cases. If any part of a worker’s duties is maritime in nature then he is a full time Longshore worker. (Northeast Marine Terminals v. Caputo, 432 U.S. 249 (1977))
Herron – Situs test for Longshore Act coverage in the Ninth Circuit (Washington, Oregon, Montana, Idaho, California, Nevada, Arizona, Alaska, and Hawaii). (Brady-Hamilton Stevedore Co. v. Herron, 568 F.2nd 87 (9th Cir. 1978))
Ford – First landward stop for cargo is not the final step in unloading. All intermediate steps are covered. (P.C. Pfeiffer Co., v. Ford, 444 U.S. 69 (1979))
Winchester – Situs test in the Fifth Circuit (Louisiana, Texas, and Mississippi). (Textports Stevedore Co. v. Winchester, 632 F. 2nd 504 (5th Cir. 1980))
Sun Ship – The Longshore and Harbor Workers’ Compensation Act supplements state workers’ compensation laws, it does not supplant them. This confirmed the principle of concurrent state and federal jurisdiction. (Sun Ship, Inc. v. Commonwealth of Pennsylvania, 447 U.S. 715 (1980))
PEPCO – The Section 908(c) schedule is mandatory for injuries that fall within the schedule. (Potomac Electric Power Co. v. Director, Office of Workers’ Compensation Programs, 449 U.S. 268 (1980))
Scindia – Established the vessel owner’s turnover duty to longshore workers, one of reasonable care. (Scindia Steam Navigation Co. Ltd. v. De Los Santos, 451 U.S. 156 (1981))
Perini – Situs over navigable waters confers status. (Director, Office of Workers’ Compensation Programs v. Perini North River Associates (Churchill), 459 U.S. 297 (1983))
Herb’s Welding – Status case, work on fixed oil and gas platforms is not maritime employment. (Herb’s Welding v. Gray, 470 U.S. 414 (1985))
Schwalb – Status test, work must be “integral” or essential to the employer’s loading, unloading, shipbuilding, or ship repair activities. (Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40 (1989))
Cowart – a claimant becomes a “person entitled to compensation” at the moment that the right to recovery vests. (Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469 (1992))
Abbott – Claimant entitled to permanent total disability benefits during participation in DOL approved vocational rehabilitation plan. (Louisiana Insurance Guaranty Association v. Abbott, 40 F. 3rd 122 (5th Cir. 1994)) Also see Castro in the Ninth Circuit.
Greenwich Collieries – There is no “true doubt rule” in Longshore cases. The claimant is not entitled to judgment if the evidence is evenly balanced. The proponent of a position bears the burden of proof by a preponderance of the evidence. (Director, OWCP v. Greenwich Collieries, 512 U.S. 267 (1994). See also Santoro v. Maher Terminals, Inc.)
Sidwell – Situs test in Fourth Circuit (Maryland, Virginia, West Virginia, North Carolina, and South Carolina). (Sidwell v. Express Container Services, Inc. (71 F. 3rd 1134 (4th Cir. 1995))
Harcum – The Director, Office of Workers’ Compensation Programs, cannot initiate appeals to the federal Circuits (except for section 908(f) (second injury) issues). The Director is not the designated champion of the claimant. (Director, Office of Workers’ Compensation Programs v. Newport News Shipbuilding and Dry Dock Co. (Harcum), 514 U.S. 122 (1995))
Chandris – Test for seaman status. (Chandris, Inc. v. Latsis, 515 U.S. 347 (1995))
Rambo – Even if there is no present loss of wage earning capacity a claimant may be awarded a de minimus award but there must be a significant possibility of future loss of earnings. (Metropolitan Stevedores v. Director, Office of Workers’ Compensation Programs (Rambo II), 521 U.S. 121 (1997))
Price – Aggravation rule in traumatic injury cases. (Metropolitan Stevedore Co. v. Crescent Wharf & Warehouse Co. (Price), 339 F. 3rd 1102 (9th Cir. 2002))
Stewart – Broad definition of a vessel includes “every description of watercraft or other contrivance used, or capable of being used, as a means of transportation on water”. (Stewart v. Dutra Construction Co., 543 U.S. 481 (2005))
I know. Too long. There are more, but I’ll hold them for a possible Part Two. If you memorize this list you should be able to carry on a very brief conversation with a Longshore lawyer.
ABOUT THE AUTHOR
John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of AEU's Longshore Insider.