Copyright (c) 2010 Tulane Maritime Law Journal
Tulane Maritime Law Journal
ARTICLE: Close-Hauling Toward Simplified Eligibility Under the Longshore and Harbor Workers' Compensation Act: A Proposal for Congressional Action or Judicial Clarification To Rectify Persistent Ambiguity*
* This Article was inspired by the 2006 Judge John R. Brown Admiralty Moot Court Competition sponsored by the University of Texas School of Law, the University of Houston Law Center, and Tulane University School of Law. The authors would like to thank the competition's problem writers, Michael F. Sturley and David W. Robertson, for their foresight in identifying such an important issue as well as Professor John Paul Jones of the University of Richmond who initially suggested our appellate brief might provide the basis for this article. We would also like to thank Professors Jonathan Gutoff, Kristen Fletcher, and Robert Falvey, without whose guidance and support this endeavor would not have been possible.
Tulane Maritime Law Journal
35 Tul. Mar. L. J. 45
Nicole J. Dulude+ and Todd Greenwood**
For nearly a century, the Longshore and Harbor Workers' Compensation Act 2 (Longshore Act or Act) has been amended and amended again to resolve ambiguities in its coverage. Despite these changes, the Act continues to raise many questions regarding eligibility that generate considerable judicial ink, often undermining the underlying purpose of the Act and its proper place in a regime of maritime remedies. One of the most convoluted statutory remedies in personal injury law, the Longshore Act is an anachronism dating to an era when uncertainty prevailed over the constitutionality of congressional authority to fashion remedies that applied seaward of the Jensen line. 3
Since 1927, the Longshore Act has attempted to straddle that line, 4 with one metaphorical foot planted on the terra firma of landward workers' compensation law and the other in the swash of the general maritime law. Modernly, the Act continues to play an important role in compensating injured amphibious workers. However, claims proceeding under it require courts to navigate tortuous courses as a result of Congress's failure to firmly define the class of workers that qualifies for its benefits and the cause of action in tort that the Act sets forth.
The legislature's omission of a clear definition of maritime employment was probably originally intentional: calculated to permit broader eligibility. However, the omission has resulted in substantial ambiguity, leaving the judiciary struggling to bridge gaps in the Act's coverage. Ultimately, this ambiguity has spawned three primary problems unanticipated ...
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