386
Stevens, J., concurring in judgment
it is a novel construction of the Jones Act to read it as a scheme to protect employers.9 But even if Congress had shared the Court's concern, this case does not implicate it in the least. We are talking here about a lengthy voyage on the high seas. The employer controls who goes on that voyage; he knows, more or less, when that voyage will begin and when it will end. And, but for the majority's decision today, he would know that while the ship is at sea, all his employees thereon would be covered by the Jones Act and not by the LHWCA. Thus, no one is walking out of Jones Act coverage and into LHWCA coverage (or vice versa) without the employer's knowledge and control. Once again, the majority's concern—and its method of determining seaman status—is properly directed at injuries occurring while the ship is at port.
As a matter of history, this concern with oscillating back and forth between different types of compensation systems recalls a very different and far more serious problem: the difficulty of defining who is a "maritime employee" (a class of workers that includes both seamen and longshoremen) and who is not. Over the powerful dissent of Justice Holmes, in Southern Pacific Co. v. Jensen, 244 U. S. 205 (1917), the Court held that the constitutional grant of admiralty and maritime jurisdiction to the federal courts prevented the State of New York from applying its workmen's compensation statute to a longshoreman who was injured on a gang plank about 10 feet seaward of Pier 49 in New York City. Jensen was a shore-based worker who had walked out of the coverage of the state law into an unprotected federal area—the area seaward of the shoreline. In enacting the
9 The Jones Act was passed to overturn the harsh rule of The Osceola, 189 U. S. 158 (1903), which disallowed any recovery by a seaman for negligence of the master or any member of the crew of his ship under general maritime law. McDermott Int'l, Inc. v. Wilander, 498 U. S. 337, 342 (1991). The aim of the statute, then, was to expand the remedies available to employees, not to aid their employers.
Page: Index Previous 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 NextLast modified: October 4, 2007