Coppola v. Logistec Connecticut, Inc.

MICHAEL COPPOLA v. LOGISTEC CONNECTICUT, ET

INC., AL. (SC 17604) Borden, Norcott, Katz, Palmer, Vertefeuille, Sullivan, Zarella and Js. officially July

Argued released 2007 October brief, Marie Kelly, whom, David A. with on the was appellant Gallo-Hall, (plaintiff). E. for the appellee defendant). Peter D. for the Quay, (named Opinion appeals1 SULLIVAN, plaintiff, Coppola, J. The Michael compensation of the review board from decision compen- the decision of the workers’ (board) affirming (commis- for the third district sation commissioner lack plaintiffs for sioner) dismissing Compensation pursuant (state claim to the Workers’ Act seq. plaintiff General Statutes 31-275 et The act), § improperly claims on that the board concluded appeal claim that the commissioner lacked over his Connecticut, defendant, Logistec the named against on the Inc.,2 because the occurred and, therefore, States the federal waters of the United exclusive over the claim government had plaintiff appealed judgment of the review The from appeal Court, Appellate to the and we transferred the to this court board pursuant (c) § § 51-199 and Practice Book 65-1. to General Statutes Company, party LaMorte the third administrator of the work Burns and Connecticut, Inc., compensation plan Logistec a defendant ers’ also proceedings Burns the commission and the board. LaMorte before convenience, Company participated appeal. For we refer and has not this opinion. Connecticut, Inc., Logistec as the in this defendant consti- three, 2, one, 8, under article and article § § States3 and the Longshore tution of the United Compensation Act, 33 U.S.C. 901 et § Harbor Workers’ seq. plaintiff We with the (longshore act). agree reverse the board’s decision. procedural

The record reveals the facts and following history. testified at a plaintiff hearing before commissioner that the defendant is in the business of ships in New Haven harbor. The had unloading plaintiff as predeces- worked a laborer for the defendant and its intermittently years. sors over several He resumed working 14, for the defendant on June 1999. On that date, he assigned was to work on the docks day, On the next “unhooking” cargo. 15, 1999, June he was to unload assigned copper ship. from the hold of a As plaintiff the into the descending ship’s hold, a step broke beneath him and he fell. He was taken ambulance to Hospital, Yale-New Haven where he was treated for hip a broken and a broken wrist. plaintiff

The filed a claim under the longshore act and was awarded in a decision dated April 28, plaintiff 2003. The also filed a claim under the September state act. On 15, 2003, the defendant filed a motion to dismiss the state claim for lack of that, because, at the claiming time of his injury, plaintiff had been engaged employment a vessel on the floating navigable waters of the United States, the act remedy. was his exclusive The commissioner found that plaintiff employed by “was States, three, 2, provides The constitution of the United article § part: judicial relevant “The Power the United shall . . . [of extend States] admiralty to all Cases of and maritime Jurisdiction . . . .” States, one, 8, provides The constitution of the United § article in relevant part: Congress “The shall have Power . . . make all Laws which shall [t]o necessary proper carrying Powers, foregoing for into Execution the and all other Powers vested this Constitution in the Government of the States, any Department United inor or Officer thereof.” seriously 15, 1999, on when he was June defendant] [the ship, fall in the hold a docked injured as result of a navigable Haven on waters of floating in New . . plaintiff . .’’He also found that the United States accepted injuries for these under “has an claim for is receiv of the which he provisions [longshore act] in Leszc this court’s benefits.” on decision ing Relying Oyster Co., zymski Andrew Radel v. 102 Conn. that, held A. in which this court 527-28, 129 (1925), Jensen, Co. under Southern Pacific the federal (1917), government Ct. 61L. Ed. 1086 S. over maritime had exclusive waters, dis commissioner occurring subject jurisdiction. claim lack of matter missed the com- filed a motion correct the plaintiff then requested he new find- in which findings, missioner’s alia, plaintiff inter is a Connecticut ings corporation, resident, the defendant is Connecticut entered into within this employment contract was injury was Haven. He place and the New federal gov- that the commissioner and the argued also jurisdiction over the claim. ernment had concurrent the objected ground to the motion on The defendant merely were restatements proposed findings the that and that situs of the plaintiffs the arguments, “[t]he and that floating was on the water accident a vessel in the The com- already been made clear record.” has plaintiffs denied motion. missioner the the dis- from commissioner’s plaintiff appealed The He filed a motion of his claim to the board. also missal which he that the summary requested remand in for for addi- remand the matter to the commissioner board objected to the motion findings. The defendant tional whether only “the relevant fact is on the that ground which was injury vessel, occurred in the hold the waters of United States on the the floating navigable the board its decision hearing, . . . .” After issued of the claim. affirming the commissioner’s dismissal in Leszczym- The board noted that this court’s decision ski had been rendered before the enactment of the that longshore developments act and later the case Jensen law the forth in suggested rigid that rule set may modified have been so that state constitutionally laws applied could be some claims injuries occurring on waters. navigable The concluded, however, board that effect of “[t]he [the interpretive and federal are case law act] province higher appellate matters within the of our by Leszczymski courts,” it was and that bound until that case is not overruled. The board did rule on the plaintiff’s for summary motion This appeal remand. followed. plaintiff on appeal claims that the board improp-

erly: (1) jurisdic- determined the state did not have claim; tion over and his failed to his (2) address motion for summary remand and the commissioner’s denial of his motion to correct. We the conclude that state has concurrent with government the federal involving injuries claims on incurred employer waters when the are employee locally based, employment contract performed is within on partly land, place took on the state’s waters employer required territorial and the under the state to secure compensation any act for land based incurred employee. We further conclude because the defendant concedes that the plaintiffs claim would not be if barred he had been land, record is sufficient this court to determine constitutionally applies state act to the claim and there is no need to remand the matter to the commissioner additional fact-finding. Accord- ingly, we reverse board’s decision. matter,

“As a threshold we set forth the standard of review to applicable workers’ compensation appeals. 6 principles govern review in

The our standard of that compensation appeals are established. well workers’ commissioner] from [the The drawn conclusions they from an must stand unless result the facts found application of the law to the subordinate facts incorrect unreasonably illegally drawn or from an inference [although well from ... It is established them. great weight dispositive, the construc not we accord to given to the workers’ statutes tion agency ... is [the] board. A state commissioner and special when its entitled, however, not to deference previously question law of a has not determination scrutiny.” subject judicial (Citations omitted; to been quotation omitted.) Tracy v. Scherwit marks internal (2006). zky Co., 265, 272, 901A.2d Gutter 279Conn. constitutionally applies to claims Whether the state act occurred on the waters pine question is a of law.4 Leszc of the United States Oyster zymski Co., v. Radel Conn. Andrew question and addressed that con 527-28, this court had no that the commissioner cluded recognized, however, board we maritime claims. As the question light of the have never reconsidered statutory developments many important in federal place that decision. case law that have taken since Accordingly, this that our review of issue we conclude plenary. is question preemp plaintiff case as a of federal The frames the issue this supremacy preemption Typically, under federal claims arise clause tion. with when the law at issue conflicts federal of the federal constitution “state comply law, impossible . . with . . . or . the because it is both either accomplishment as and execution of state law stands an obstacle omitted.) objectives.” (Internal quotation congressional marks Barbieri v. 708, 717, Technologies Corp., (2001). 255 Conn. A.2d 915 United present

jurisdictional question us in not involve a before case does legislation, however, instead involves and federal but conflict between state scope matters over maritime under of exclusive federal one, 8, three, 2, § federal See Southern § and article constitution. article Jensen, supra, 244 U.S. 214-16. Co. Pacific analysis by

We our begin development the reviewing of the law governing state and federal workers’ claims employment. Southern Co. v. Jensen, Pacific 244 U.S. 210, the United States Court consid- ered a claim that the New York workers’ compensation law was applied provide unconstitutional as benefits to the widow of a who had longshoreman been killed while on a unloading cargo ship floating waters. The longshoreman employed had been at the New York plaintiff, Kentucky office of the corporation, which also owned the on which he had been killed. Id., 207. The by court began noting III, 2, “Article § of Constitution, judicial extends power United States ‘To all cases admiralty of and maritime jurisdiction;’ and I, 8, upon Article confers § the Con- power ‘To gress may make all laws which necessary be proper into carrying execution the foregoing powers and all powers other [cjonstitu- vested this government tion in the any the United States or in ” department or officer Id., thereof.’ 214-15. The court then recognized view of these constitutional “[i]n provisions ... it difficult, would be if impossible, not to define with just exactness how general far the mari- may time law be changed, modified, or affected legislation. That may this be done to some extent cannot Id., denied.” such legislation is valid “[N]o [how- if it . . . works prejudice material to the charac- ever] teristic features of general maritime law or interferes with proper harmony uniformity that law in its international and interstate relations.” Id.

The court in Jensen found that work of a steve- “[t]he dore in which the deceased was engaging is maritime in its nature; employment his was a maritime contract; which he received were likewise maritime; and the rights and parties liabilities in connection therewith were clearly matters within admiralty jurisdiction.” New that, “[i]f 217. The court stated ships ports subject coming foreign into can her York imposed by Compensation obligations as her such those necessary may do Statute, other States likewise. consequence very unifor- would be destruction of mity respect which in to maritime matters the Constitu- designed establish; and of tion was to freedom navigation foreign States and with coun- between the seriously hampered impeded.” Id. tries would be legislature “[t]he The court exceeded concluded authority attempting to extend the statute under its in like here to conditions those disclosed. consideration applied, with the Constitution and to that So it conflicts is 217-18. extent invalid.”5 decision, was no At the time of the Jensen there injured compensation providing for of federal law would waterfront workers. Concerned that Jensen injured compen deprive their source workers of sole of provid Congress sation, made two efforts to enact laws compensation ing be available to them. that state would Dept. 249, 317 S. Ct. Labor, Davis v. U.S. 63 See of (1942). L. 246 Both enactments were found 225, 87 Ed. Finally, Congress be Id. unconstitutional. by extending “responded progeny its to Jensen and protection while to shore-based workers federal temporarily navigable waters. The statute excluded on hand, work- seamen,6 . . . one shore-based 5 Oyster Co., supra, Leszczymski v. As this Andrew Radel court stated Pitney, 518-19, and Mr. Justice controvert 102 Conn. “Mr. Justice Holmes ability, opinions exceptional grounds of of decision Jensen] [the way judicial argument leaving or little be said research else to joined opin analysis.” dissenting in both Brandéis and Justice Clark Justice justices dissenting language primary argument was that “the ions. The only jurisdic speaks establishing 2 of III of the Constitution §of [article] tion, prescribe or the law and does not the mode which substantive governed . . is to be . .” Southern which the exercise of (Pitney, J., Jensen, dissenting). v. Co. Pacific seq. Act, protected § under the Jones 46 U.S.C. 688 et Seamen are ers they while were on the landward side of the Jensen line, on the other. . . . [longshore was origi [T]he act] nally a ‘gap-filling’measure intended to create coverage for those workers whom, Jensen, after States could provide not compensation.” Chandris, Latsis, Inc. 347, 387, U.S. 115 S. Ct. 132 L. Ed. 2d 314 “ (1995). applicable only The law was recovery ‘if for the disability or death through workmen’s ” may proceedings validly provided by not state law.’ Davis v. Dept. Labor, supra, 253.

While Congress was attempting gap address in coverage for waterfront by Jensen, created United States Court had concluded that not all claims involving that occurred on naviga- ble beyond waters were the reach of compensation state laws. In Grant Ship Smith-Porter Rohde, Co. v. 257 U.S. 469, 473-75, 42 S. 157, Ct. 66 L. Ed. 321 (1922), court considered whether Oregon’s compensation laws constitutionally applied to a claim employee an who had injured been while constructing ship a new floating in navigable waters. The court stated that con- “[t]he tract for constructing new ship] was non-maritime, [the although incompleted structure upon which the accident occurred was lying navigable waters, neither employee’s] general employment, nor [the his activities at the any time had direct relation to navigation or commerce.” Id., 475-76. Moreover, “the parties con- tracted with reference to the state statute their [and] rights and liabilities had no direct relation to navigation . . . .” Id., 477. The court concluded that, when state regulation “would work no material prejudice to the general maritime law, the mies of the latter might be supplemented modified or by state statutes.” Id. Accordingly, it concluded that the application of the compensation law was constitutional under these circumstances. 477-78. The principle that states have over claims involving injuries that if the activi employee’s on waters navigable occurred directly not employment ties and the contract were commerce is some navigation related but local doctrine.” referred to as the “maritime times Director, Compensation Pro Workers’ See Office Associates, U.S. grams v. Perini North River 297, L. 2d 465 634, (1983). S. Ct. 74 Ed. 306, 103 Rohde, Thereafter, with the court contin- consistent jurisdiction over Jensen to bar state com- apply ued to it that an work pensation employee’s when found claims navigation direct relation to or commerce. had a Baizley Span, Iron Works John U.S. considered (1930), S. 74 L. Ed. 819 court Ct. constitutionality Pennsylvania’s had employee law an who been applied as to claim ship work on a repair floating while engaged Rohde, employee waters. Relying “would application of the state statute had claimed the essential features of prejudice no material work rejected . . .’’Id. maritime law . The court general a new that, unlike work on claim, reasoning this which had yet navigation “not into placed that was instrumentality commerce”; id., 231; not become waters completed ship lying a “[Repairing and navigation has and intimate connection with direct court held Id., Accordingly, . . . .” the commerce unconstitu- of the state statute was application that the Works, mari- Baizley after John Iron Thus, tional.7 Id. opinion, dissenting which Justices Holmes Stone authored Justice governed concurred, he case was and in which contended the Brandéis by Havard, Rosengrant 71 Ed. v. 47 S. Ct. L. Rohde and Span, (Stone, Baizley (1927). U.S. 232 Iron Works v. John judgment J., dissenting). Rosengrant, had affirmed the court had over the claim of Court Alabama temporar employee while who had been of a lumber manufacturer ily floating navigable waters, where he had been on board schooner Baizley Span, shipment. checking See Iron Works a lumber John supra, 232. compensation time appeared claims to fall into two categories: employee’s those which the work at the time of had no direct relation to navigation commerce, over which states had jurisdiction; exclusive and those in which the employee’s work had a direct relation to navigation commerce, over which the federal government had exclusive under Jensen.

In Parker v. Sales, Motor Boat Inc., 314 U.S. 244, 245, 62 S. Ct. 86 L. Ed. 184 the court (1941), considered whether the longshore applied act to a claim widow of an employee who had drowned when he fell from a motor boat while testing employer’s one of his outboard motors for a prospective purchaser. The United States Circuit Court of Appeals for the Fourth Circuit had concluded that the act longshore did not apply because employee’s employment “was ‘so local in character’ that Virginia validly could have included it under a state workmen’s Id., 246. The United States [a]ct.” Court rejected the finding that the employment fell within the maritime but local doctrine, that the concluding claim was made “in connection with clearly maritime activ [a] ity . . . .” Id., 247. The court recognized that, under Jensen, precluded state was from juris exercising diction over Id., such a claim. 247-48. It further recog nized that the Jensen rule was highly controversial and implicitly questioned vitality. its continued 248. The court concluded, however, that there was no need to reconsider the constitutional because, rule as a matter of statutory interpretation, applied act all “employees claims ‘in engaged employ ment, in whole or in part, upon the navigable waters of the United ”; id., States’ 248-49; regardless of whether states constitutionally were barred from exercising jurisdiction over such claims. The court reasoned that impetus main for the [longshore “[t]he was the act] plain by decisions of this gap need made to correct only interpretation is believe that there one Court. We act to claims in the proviso [hmiting of the death ‘recovery disability through for the or which may validly not compensation proceedings workmen’s with which would accord provided be state law’] may not field which a state Congress;8 the aim of the compensation taken, must be for validly provide the same field act], of as purposes [longshore from state which the Jensen line of decision excluded or affirming rejecting laws. Without compensation we implications cases, accept of those constitutional to by which intended Congress them as the measure they brought into scope [longshore mark the act] Id., Thus, 250. after original.) (Emphasis existence.” still into maritime fell Parker, claims within the maritime but falling those categories: two jurisdic- states had exclusive doctrine, local over which to tion, navigation a direct relation having and those had the federal commerce, government over which states constitu- of whether the jurisdiction, regardless concurrent tionally could exercise the claims. law major development governing in the

The next came Davis workers’ claims Dept. Labor, case, 317 U.S. 249. In that of Supreme Court considered whether United States jurisdiction over a claim Washington had he an who had drowned when employee the widow of in a river. barge fell located from an aban dismantling had employee engaged been time of his death. Id. The drawbridge at the doned interpretation enlarge would or which The court also stated that “[a]n proviso in accordance with whether this Court the effect of contract . . . Jensen and its com rejected basis reaffirmed the constitutional interpretation acceptable. panion be The result of such cases cannot Congress provide, subject scope protection wished would Sales, v. Motor Congress Parker Boat avoid.” wished to to uncertainties that Inc., supra, 314 U.S. 250. Washington Court had concluded that constitutionally jurisdiction could not exercise Id., over the claim. 250-51. On appeal, the United States Supreme Court noted that “a number of cases can be cited opposition both behalf of and in recovery here”; id., 253; and very closeness of the “[t]he . . . cases and others raising points related of interpre- tation, has caused much Id., serious confusion.” 254. This confusion caused difficulties both for employees, who could not be sure which had sovereign over their claims and risked losing any compensation at all if the statute of expired limitations they before could bring the claim in proper forum, and for employers, who could lose the protection of the insur- they ance that procured had subject and be to sanctions they if failed to secure employee for the under the proper Id., law. 254—55. Overruling Jensen would problem not cure the because, as the court had in Parker, held longshore act had codified Jensen’s jurisdictional rule.9 suggests The dissent overruling the court’s statement in Davis that jurisdictional problem Jensen would not solve the establishes that the court accepted “had the Jensen line of demarcation between state and federal jurisdiction.” (Internal quotation omitted.) remembered, marks It must be however, that, decided, yet at the time that Davis was the court had not that, recognized statutory construction, as a matter of there were cases in longshore which under the act and under the state act would Thus, merely acknowledging that, coexist. the court even if it overruled Jensen, required it still congressional would be to determine the understand ing longshore of the Jensen rule at the time that the act was enacted in jurisdiction. order to determine whether a state had As we discuss more fully opinion, holding the text of this in Davis was on identical facts, one court Jensen, could find exclusive federal under jurisdiction, another rulings properly court could find state and both could by reviewing hardly be affirmed ringing court. This constitutes a endorse rigid ment of the Jensen rule. defining scope longshore Wenote that overlap cases of act and the of that act with state confusing. acts are somewhat controversial and It appears jurisdic- to us that the court in Davis assumed that federal and state mutually

tion were exclusive. Co., See Hahn v. Ross Island Sand & Gravel 272, 273-75, (1959) (Stewart, X, 79 S. Ct. 3 L. Ed. 2d 292 dissenting) (under Davis, finding jurisdiction court’s under act clearly is . . . concluded that

The court “[t]here employees must have their zone in which the twilight by case, particular and in which determined case rights are vital elements. That zone facts and circumstances a are, the as persons includes such as decedent who administration, protected in fact under matter of actual with act.” Id. “Faced this factual compensation the state presumptive— problem give great indeed, we must — federal appropriate to the conclusions of the weight the themselves.” Id. If authorities and to state statutes that the claim fell within federal authorities determined act, the conclusion would scope longshore the of the only rejected to and will be great weight be “entitled Id., If, other apparent of error.” 257. on the cases law, a under hand, employee the first made claim state as constitutionality state law the of the presumed.10 Giving to claim was to be Id. applied the preclude jurisdiction act); also v. Travelers under state see Calbeck should 1196, Co., 137, (Stewart, (1962) 370 82 S. Ct. 8 L. Ed. 2d 368 Ins. U.S. jurisdiction, J., dissenting) (if recognized had then there Davis concurrent twilight doctrine). States have been no need for zone The United would ultimately concluded, however, Supreme that Davis had established Court twilight regime v. of in the zone. See Hahn Ross a concurrent Co., (majority supra, opinion); also Sun Sand & Gravel 272-73 see Island 715, 718, Ship, Pennsylvania, 100 S. Ct. 65 L. Ed. 2d Inc. Similarly, although, by terms, longshore originally (1980). its own the act law”; apply recovery may validly provided by . . . . . State did not “if . Co., quotation (internal omitted) marks Calbeck v. Travelers Ins. (Stewart, J., dissenting), citing Hahn v. Ross Island & Gravel 137-38 Sand ultimately 272; Co., supra, United Court held it States applied falling maritime Calbeck to claims within the but local doctrine. See body opinion, Co.,supra, v. Travelers 126-28.As we discuss in the of this Ins. scope negatively scope act does not define the because of constitution, need address these under the we not of Nevertheless, apparent length. it contradictions at is controversies development growing important of this law reflects sensitiv- to note that the certainty ity practical concerns, of such as ease administration and to diminishing preserving purely coverage, with formalistic rules. concern “ come, has to the ‘first first served’ The Davis doctrine been referred as University, Junior “Has rule.” Board of Trustees the Leland Stanford (1950). “Two Been Jettisoned?” 2 Stan. L. Rev. the Jensen Case presumptions twilight If the zone worker were used as the basis of rule. presented [longshore act], the claim under the award could be first his presumption constitutionality the full of this weight compensation law, to the court reversed Washington’s Court that judgment Washington constitutionally the state was barred exercising from Thus, Davis, over the claim. after there appeared be three of maritime categories traditionally claims: those had fallen within the local doctrine, but over which states had jurisdiction; traditionally exclusive those that had been found to have a direct affect on or com- navigation merce, over which the federal had exclu- government jurisdiction; sive and those close cases within falling zone, in which the twilight which forum employee presumed first the claim was brought jurisdiction. have interpretation

This of Davis’ zone doctrine twilight doubt, was soon to be thrown into however. Moores’s Case, 162, 164, 323 Mass. 80 N.E.2d 478 (1948), Massachusetts Judicial Court considered whether Massachusetts had over the claim of employee an who had been while repairing a ship dry “in a dock floating navigable water . . . .” repair court noted traditionally, work on a waters had floating quintessentially been a activity that fell jurisdic within the exclusive tion of the federal government. Id., 165. It concluded, however, that the principles underlying that rule were “definitely altered” the United States upheld by provision [longshore reason of the in the is act] ‘presumed, contrary.’ to be in the absence of substantial evidence to hand, act, On the if other the claim were made under the state the traditional presumption constitutionality jurisdiction. of would be invoked to sustain words, marginal right In other claimant was certain to be no matter which forum he chose.” Id. categories employment, “Of all the of borderline the one which [before authoritatively, repeatedly decisively Moores’s had been most and Case] placed repair previously complete on the federal side was work on a vessel Larson, Compensation . ...” (2006) 9 A. Larson & L. § Workers’ Law 145.02 [6], p. 145-11. Although the Massa Davis. Court’sdecision that Davis had not overruled chusetts court concluded “apparently must be some heed still Jensen, and that authority paid as and Federal the line between State to important 167; most id., “the [in Jensen]”; laid down question fixing of the boundaries has now become gives ‘twilight the case zone,’ and for this of new subjec and the indefinable us no rule or test other than says Frankfurter tive of doubt. Mr. Justice test employee illogic long is so as the ‘Theoretic inevitable permitted to at his choice under either ... recover’ is (Frank Dept. U.S.259 [Davis Labor, act. Probably proper concurring)]. therefore our furter, J., attempt through to reason the matter course is not to preserve previous authorities, or to to reconcile simply recognize rather to distinction, fine but lines futility attempting logically to about reason ‘illogic,’ intended to treat the Davis case as to necessary revolutionary escape a deemed decision designed include situation and as within intolerable water front cases wide circle of doubt all aspects pertaining the land and to the sea where both to argument way, be made either even can reasonable previous though of numerous a careful examination apparent weight might of author disclose an decisions ity way We can no other manner one or the other. see given can be the effect that in which the Davis case suppose have, it should we the court intended must that the court intends follow we must assume supra, Case, Moores’s 167.The that case in the future.” Massachusetts had court concluded that claim. appealed to the Thereafter, Case United Moores’s development that stunned Court. In States observers; Board of Trustees of Leland some see University, “Has Been the Jensen Case Stanford Junior

17 Jettisoned?” 2 536, Stan. L. Rev. (1950);12 543 the United States Moores’s Case in a Court affirmed per curiam memorandum decision. See Bethlehem Steel Co. v. Moores, 874, 69 335 U.S. 239,93 S. Ct. L. Ed. 417 (1948).

Any doubt that the United States Supreme Court had failed that Moores’s Case had effected a appreciate “sweeping change compensation workmen’s law”; Board of Trustees of the Leland Stanford Junior Univer- sity, supra, 2 543; Stan. L. Rev. was removed the next year when the court, per in another curiam decision, vacated the decision of the California Court of Appeal that California lacked over a claim that was factually indistinguishable from the Massachusetts case and remanded the case to the California court for recon- sideration in its decision in Moores’s Case.13 See light Baskin v. Industrial Accident Commission, 89 Cal. App. 632, 2d 201 549, P.2d vacated, 338 U.S. 854, 70 S. 99, Ct. 94 L. Ed. 523 (1949) (per curiam). “The Baskin case if is, anything, more striking than Case], [Moores’s since in Case], merely the court [Moores’s declined to Services, Collins, note, “Admiralty Beverly See also D. v. Action Marine — Twilight Eclipse?” c.: 1237, or Total (1984) 58 Tul. L. Rev. In (“[t]he interpretation Moores’s decision was probably such an unusual that it very precedential authority would have had little outside of Massachusetts if no taken”). further action had been Appeal initially The California Court of had affirmed the decision of dismissing plaintiff’s workers’ commission claim for Commission, benefits. Baskin v. App. 632, Industrial Accident 89 Cal. 2d 549, vacated, 201 P.2d 338 U.S. (1949) 70 S. Ct. 94 L. Ed. 523 (per curiam). remand, Appeal On the California Court of reversed itself and concluded that the state had over the claim.Baskin v. Industrial Commission, App. 257, 264, Accident 97 Cal. (1950). 2d 217 P.2d 733 court stated that Massachusetts court in “[t]he [.Moores’s took differ Case] took, giving ent view of the Davis case than we it more latitude than we thought had, affirmance, it Moores, but the Steel Co. v. [Bethlehem authority case, based on 874] of the Davis shows theirs was the correct view.” Commission, supra, Baskin v. Industrial Accident App. Supreme Cal. ultimately 2d 263. The United States Court affirmed that Baskin, 886, decision sub 208, nom. Kaiser Co. v. 340 U.S. 71 S. Ct. 95 L. (1950) (per curiam). Ed. 643

18 court, state while in by the upset granted an award an award the court to make it in effect told state Baskin Larson, 9 Larson & L. Work had been denied.” A. which p. 145-12; [6], Law 145.02 Compensation (2006) § ers’ the Leland Stanford Junior see also Board of Trustees of case lends (“[t]he 543 Baskin University, the to conclusion that the strength States] [United really what said when it Supreme Court meant it on Massachusetts per blessing its curiam the bestowed Thus, Davis after Moores’s rule”). of the interpretation front appeared that “all water cases Baskin, Case scad it the aspects both to the land to pertaining 323 Case, supra, Mass. added) Moores’s sea”; (emphasis zone, employees had 167; twilight within the fell remedy in such either federal or state cases. choice of of the steps development the in the Although final jurisprudence governing Court’s United States jurisdiction over mari- and federal the contours directly rel- compensation claims are not time workers’ footnote 19 of present appeal; the but see evant to briefly them for the sake of this we review opinion; Co., Ins. In Calbeck v. Travelers completeness. 82 L. Ed. 2d 368 114, 115-16, (1962), S. Ct. 8 applied longshore whether the act court considered traditionally had compensation claims that workers’ over which doctrine, but local fallen under jurisdiction. constitutionally exercise states could did, concluded it Parker, extension of court act the thereby effectively reading longshore out “ may . . . only recovery ‘if provision applied that it . .”14 provided by law’ . . validly not be State 14 (“[t]o put Larson, supra, [6], p. 145-13 § Larson 145.02 See 9 A. & L. by judicial terms, Court in blunt the [United States] matter [longshore . . . condi deleted act] construction from [in Calbeck] recovery through coverage . . . workmen’s tion ‘and if may validly provided by ”). proceedings not law’ Amendments [s]tate provision, repealed perhaps recognition act in this Ship, Pennsylvania, already so. Sun Inc. that Calbeck had done See n.2, (1980) (by repealing L. Ed. 2d 458 U.S. 100 S. Ct. acceptance compensa- The court also concluded that of tion under a state law did not constitute recovery under the precluding election of remedies Id., act. 131. longshore Inc. Ship, Pennsylvania, Sun U.S.

100 S. Ct. 65 L. Ed. 2d 458 the United (1980), Supreme States Court considered the effect of the 1972 act, amendments to the which had longshore extended coverage act to land-based previously only had been remediable under state Pennsylvania law. Five employees, who had been injured after the effective amendments, date sought Pennsylvania benefits under the workers’ com- pensation act. Their employer claimed that the effect of the amendments had preempt application been to of state compensation injuries. laws to such 716-17. The United States Court concluded that “[t]he of the 1972 language fairly amendments cannot understood as pre-empting state workers’ remedies from the field of act], the [longshore thereby resur- recting jurisdictional monstrosity that existed before in Davis and Calbeck.” opinions the clarifying Id., Accordingly, court concluded that Congress intended that “federal would coexist with state compensation laws that field in which the latter may constitutionally operate under the Jensen doc- trine,” claims including injuries. land-based Id., 722.

In light jurisdictional of the confusion culminating in the United States adoption Court’s of the twilight zone doctrine in Davis, and the shock with which some observers greeted that court’s apparent expansion of the doctrine when it affirmed Moores’s Case and reversed Baskin, it is not surprising that provision “Congress may simply have endeavored to reaffirm the correctness by removing possibly contradictory language”). result Calbeck scope about disagree

courts have continued contours over maritime workers’ have compensation claims. Several courts followed Moores’s Case in that claims holding involving quintessentially maritime performing incurred while repair board ship longshoring activities such as on within ship twilight on waters fall floating navigable Jensen’s to follow zone,15 others have continued while juris- holding that such claims are within exclusive These government.16 respective diction of federal Lane v. represented by are thought schools of well Stevedoring Co., Universal 20, 21, 33-34, N.J. 304 63 15 Compensation Board, App. Appeals Duong 3d v. Workers’ 169 Cal. See (state jurisdiction involving 980, 984, 215 Rptr. (1985) over claim Cal. 609 had waters); iryuiy by employee repairing ship floating navigable in incurred Wilson, 205, 206, App. 210, Stevedoring v. 220 Ga. 469 S.E.2d Allsouth Co. by involving ir\juiy (state jurisdiction (1996) 348 had over claim incurred ship waters); Logan longshoreman working floating navigable in v. Loui on 182, jurisdiction Co., 1989) (state (La. 189 had over Dock So. 2d siana 541 by injured repairing ship dry navigable employee floating in dock in claim Co., 20, 34, 304 A.2d 537 waters); Stevedoring (1973) N.J. v. Universal 63 Lane by jurisdiction involving ii\jury employee (state had over claim incurred waters); unloading ship floating navigable cargo in v. London on Behrle Co., Ltd., 106, 113, (state (1949) A.2d 76 R.I. 68 63 Guarantee & Accident by jurisdiction involving injury employee repairing had claim incurred over Navy ship denied, 928, commerce), in cert. U.S. that was not involved 339 (1950); Indemnity 627, Ct. Ed. 1349 Ins. Co. North America 70 S. 94 L. Marshall, 174, App. 1957) (state jurisdiction (Tex. 179-80 had 308 S.W.2d injury by repairing ship dry involving employee incurred in dock over claim Foods, Ford, floating waters); Original navigable 221 on American Inc. v. jurisdiction 557, 558, 562, (1980) (state 187 had over claim Va. 272 S.E.2d repair by employee doing ship floating while work on in mother of killed navigable waters). 16 Co., 220, 228(5th 1958) (state Ins. Cir. See Flowers v. Travelers 258 F.2d by jurisdiction injury doing involving employee incurred lacked over claim 920, repair ship floating navigable waters), denied, work cert. on Commission, 591, (1959); v. Industrial 277 79 S. Ct. 3 L. Ed. 2d 582 Wells jurisdiction App. 379, 388, (state (1995) lacked Ill. 3d 660 N.E.2d 229 over by iryury loading ship floating involving longshoreman incurred claim Compensation navigable waters); v. Workmen’s Wellsville Terminals Co. 334, Appeal (1993) (state Board, Pa. 632 A.2d 1305 lacked by employee involving injury repairing claim incurred floating waters). navigable over claim involv- had A.2d 537 (1973) (state working in hold by injury longshoreman incurred ing waters under Moores’s ship floating navigable on Co., Ins. F.2d v. Travelers and Flowers Case), jurisdiction over claim lacked 1958) (state Cir. (5th by employee performing incurred waters under repair floating navigable work on vessel Case). Moores’s Jensen, which was not overruled InLane, Jersey New considered Court of worker’s com had over a whether who had been pensation longshoreman claim filed ship floating while in the hold of a working Stevedoring Co., Lane v. Universal waters. development of reviewing 63 N.J. 21. After Supreme jurisprudence per Court the United States jurisdiction maritime claims from to state over taining Case, Jensen Moores’s the court concluded that through law employee the to recover under state would allowing upon “detrimental effect . . . the federal mari have no in an Id., recognized that, time interest.” 31. The court Jersey decision, Appellate earlier the New Division had jurisdiction concluded that the state had no over a claim by injured a who had while unloading stevedore been Gad ship floating navigable Id., 32, citing a in waters. Terminal, Inc., dies v. Trenton Marine Super. 86 N.J. Jersey The New 125, 128, 1965). 206 A.2d 180 Div. (App. however, that Gaddies had Supreme pointed out, Court claims con distinguish criticized for attempting been the ship concerning a from claims cerning “unloading” that were at issue Moores’s in “repair” ship of a Stevedoring Co., Case and Baskin. Lane Universal v. Specifically, the court noted that Larson’s “ to Gaddies that respect [ejither had stated with treatise previously held federal are outside twi categories they ship repair ship zone or are not. Both and light that line equally had been held federal. Once loading by ship repair broken a that a case holding has been is no further case, a zone there twilight can be treated as unloading (Internal an case.”17 distinguishing ground Inc., Services, Beverly So. 2d Marine 17Butsee Action Beverly, (La. 1983). Court had concluded that the Louisiana by parents employee who a claim the of an over that state had ship floating repairing cleaning in and been killed while had distinguished ground Id., that the Jensen on waters. 140. The court employee Jensen, longshore employee, “was not a unlike the deceased ground reasoning that has been criticized on the “[c]on man.” 142.This ship equally ceptually, longshoring repairing relation to have an direct by commerce; ergo coverage law navigation of either would admiralty uniformity equally prejudicial law.” D. effect on the have an Services, “Admiralty Beverly Twilight Collins, note, Inc.: v. Action Marine — Eclipse?” (1984). 58 Tul. L. Rev. or Total language points treatise that was that the Larson’s The dissent out quoted by recent edition of is not included in the most the court in Lane “ twilight Larson, instead, ‘evenunder the zone states that his work and that zone, twilight falling as when the outside the doctrine there will be cases injured indisputably naviga clearly and is a maritime worker claimant is ” statement, however, lengthy of a comes near the end ble waters.’ That rule, analysis in which Larson states status of the Jensen of the current unequivocally everything Court has the United States that “[sjtates supports a conclusion that its decision in Davis said or done since employments over maritime had in effect concurrent employments prior Davis had been regard these without to whether Larson, supra, province.” placed 9 A. Larson & L. within the federal or state by Moreover, support language [3], p. cited § 145.05 145-127. dissent, primarily had concluded on a case in which the court Larson relied had over a claim a worker who did not have that the state disassembling engine that was docked on been while waterway provided anavigable no a state statute because payable employee was covered to an whose n.20, citing Id., [4],p. Mike Cruz Machine 145-143 Hernandez v. § act. 145.07 points out, App. 1980). Shop, (Fla in the As the dissent 389 So. 2d 1251 represents treatise, digest that one side Larson cites a Louisiana case to the authority acknowledged split issue. See 9 A. on the constitutional of D145-40,citing Larson, supra, [3],p. Wixom v. § 145.07D Larson & L. jurisdiction App. (state Co., (La. 1978) lacked 357 So. 2d Travelers Ins. ship ship repairs by employee ipjured performing in on while over claim split authority, already navigable waters). in how had discussed this Larson reasoning. ever, adopt & L. See 9 A. Larson declined to Wixom’s and had Moreover, Logan [3], p. Larson, supra, v. Louisiana 145-129. § 145.05 Co., 182, 188 (La. 1989), Court of Louisiana 2d n.17 Dock 541 So. expressly an Wixom and held that claim declined to follow jurisdiction. Id., subject navigable waters was to state incurred on a boat in by any by unsupported Thus, language is relied on the dissent 189. analysis entirely unqualified analysis with the tone is inconsistent and its only inexplicable performed. Accordingly, as an we can view it Larson had Larson, 3 A. Id., 33, quoting omitted.) marks quotation 89.40, p. Compensation (1971) § Law Workmen’s analysis of with Larson’s agreed The court n.55. and Baskin overruled Moores’s Case and, accordingly, the state had Gaddies and concluded that Co., Stevedoring the claim.18See Lane Universal for the Fifth Cir- Appeals States Court of The United view in Flowers. issue in that took a different cuit of Texas had was whether the state case who had been employee over a claim dry floating on a in a dock repairs while making Co., v. Travelers Ins. waters. Flowers that, historically, noted F.2d 221. The court supra, 258 has vessel been repair existing of work on an doing “the attempted clearly maritime in nature that as so treated would collide compensation laws application of State which uniformity with that essential law] [of of Jensen.” very recognized 222. It was the breath Davis jurisdictional had created a the court appeared to have zone and that doctrine twilight Case and Baskin. Moores’s expanded been greatly concern, however, id., expressed 222-23. The court See everyday instability “an in the admin- about accentuated amphibious employ- acts to istration of any event, longer discrepancy. no uses the the fact that Larson’s treatise validity continuing language of that was cited in Lane does not affect the reasoning. its that case or Paradoxically, concluding governed after that the case was Moores’s question determining “was not to be Case and that the categorization employees rigid or work duties made on the basis cases”; Stevedoring prior had characterized the Lane v. Universal which 33; distinguish Co., supra, went on to the case 63 N.J. the court Lane employee very factually ground seldom on the that the in Lane from Jensen ship. required Id. As we discuss later in this had been to work on board away only however, opinion, with we that Moores’s Case did not conclude duties, rigid categorization for courts of work but also with the need frequency injured which the hairline distinctions based on the with to make navigable employee required to waters. had been work on Case to throw thought ees if are [Moores’s Baskin] complete philosophy disregard down the bars Sales, Boat Inc., in Parker Motor supra, v. expressed repudiated date not that Con- U.S. and to this [314 244] Jensen line where left it.” meant to draw the gress Co., supra, 223. Flowers v. Travelers Ins. Flowers, heavily also relied on the Fifth Circuit the United States Court in

the decision of O’Rourke, Pennsylvania Railroad Co. v. U.S. O’Rourke involved 335, 73 302, 97 (1953). S. Ct. L. Ed. 367 employee a railroad who had been claim Jersey while on a car float that moved working New waters. Id. passenger navigable cars freight longshore The issue before the court was whether the Liability Employers’ (liability act); act or the Federal Act Pennsylvania seq.; applied 51 et to his claim. 45 U.S.C. § O’Rourke, Co. Railroad 334. The court consid question as a threshold whether the claim was ered Id., act. 336-37. It concluded longshore covered for “provided that the act means indemnifica longshore employees . . . maritime who were tion for for A beyond the constitutional reach of state legislation. quarter century experience has not caused Con The Jensen line of demarcation gress change plan. has been between state and federal Jersey stat accepted. . . . New could not have enacted employee’s] for granting utes [the employee] comes water. Therefore [the longshore within the coverage (Citation [the act].” marks omitted; quotation omitted.) internal under the act was exclu coverage Because liability apply. Id., act did not 337-38. sive, the federal in Flowers concluded The court “[i]f [the validly provide could not employee in a state O’Rourke] compensation, surely then it could not for workmen’s employee in whose for one in status of the Flowers] [the repairman as a on an vessel reeked existing work equally Co., supra, of the sea.” Flowers v. Travelers Ins. 258 F.2d 224.

Finally, rejected implications the court in Flowers that, Case, of the cases under Moores’s tradi- holding zone, tional maritime claims now fell within twilight employment, with no no reasoning marginal “[i]f obscurity or concerning the nature and kind of work importance its commerce, no undefined apart undefinable boundaries to set it from land-based entirely activity, it is nonetheless left to the choice of will employee to determine which route he take, vitality, then Jensen has indeed lost its the Jensen line of in demarcation, Parker, reaffirmed has been overruled, and administrative finality, emphasized just Davis is so much 228. The court makeweight.” concluded that fall the claim did not within the twilight jurisdiction zone and that the state did not have over it. Id.

We find the of the court in to be more reasoning Lane persuasive than that of the court in First, Flowers. it appears to us that placed the court Flowers undue emphasis scope on the of the longshore act as negatively defining scope jurisdiction of states’ under the fed- eral constitution. Although Supreme the United States Court Parker v. Motor Sales, Inc., supra, Boat 249-50, U.S. held that the landward scope of the long- shore act was by Jensen, expressly defined it declined vitality to consider the continued constitutionally based rule that states could not operate outside that line.19See id. scope expanded We also note that the act now has been always

to include claims certain land-based have been Ship, Pennsylvania, within the of the states. See Sun v. Inc. supra, Supreme 447 U.S. 716-17. The United States Court has held that the government states and federal have concurrent claims these involving injuries traditionally and over claims on water that have been within the of the states under the maritime but local id.; Co., supra, doctrine. See Calbeck v. Travelers Ins. 370 U.S. 126-28. Larson necessarily imply states that the United States Court “did not placed in Flowers

Second, we believe that court the United States emphasis undue the statement of Railroad Pennsylvania Court Co. Jensen, 337, that, under “New O’Rourke, Jersey granting could not have enacted statutes com pensation employee’s] on navigable [the in was The issue O’Rourke whether water.” threshold by act, covered the employee’s longshore the claim was clearly and court Parker had indicated that the the by “employees act covered all claims employment, part, ‘in in whole or maritime engaged of the States’ upon waters United Par Sales, Inc., supra, 248-49; ker v. Motor Boat constitutionally states were regardless of whether jurisdiction over such claims. exercising barred from Thus, appears the court’s statement O’Rourke that unnecessary to for the of case. holding have been did involve Moreover, because O’Rourke not issues claims, over maritime the court had no the effect of Moores’s Case and reason to consider we not Accordingly, Baskin on the Jensen rule. are persuaded that the in O’Rourke intended over court rule those cases.20 symmetrical traditionally falling must cases result follow as to [within government], argu- of the federal since there were exclusive history act], ments, legislative [longshore of the that would not such as the way competence. apply same issue of affirmative state But a in the proposition strong made the dominant case could be for the rationale Supreme through of all Court cases from Davis [Moores’s States] [United applied that also to the issue and Baskin to Calbeck was one of state Case] bluntly

jurisdiction. That rationale could stated: [United States] simply hairsplitting did want to be bothered with and Court not preju- local and between activities of concern activities archaic distinctions uniformity law, especially dicing was when what at stake compensation merely compensation, longer no but some versus no possible A. L. two acts.” 9 Larson & differential between [3], Larson, supra, p. 145.05 § 145-129. this See Richard v. Lake Other courts also have reached conclusion. Stevedores, Inc., App. 1957) (referring (La. 2d 832-33 Charles 95 So. concluding and that O’Rourke did to court’s statement O’Rourke as dicta govern scope jurisdiction), denied, not of state cert. claim persuaded by not the court’s

Finally, argument we are zone doc expansion twilight in Flowers that the completely in Moores’s Case and Baskin under trine efficiency mined the desire for administrative finality underlay Davis, and that the United States any could not have intended such result. Court jurisdictional was intended to reduce the uncer Davis tainty that had been created the Jen confusion presumption sen doctrine of correctness to giving in which his employee brought claim, the forum first provided that the claim fell within the zone. twilight Dept. Labor, supra, See Davis v. 317 U.S. 256. merely Moores’s Case extended the zone “to twilight include within a wide circle of doubt all water front aspects cases involving pertaining both to the land and to the sea where a argument reasonable can be made way, either even though a careful examination of previous numerous appar decisions disclose an might ent weight authority way of one or the other.”21Moores’s 535, 2 (1958);Indemnity Marshall, U.S. 78 S. Ct. L. Ed. 2d 529 Ins. Co.v. App. (Tex. 1957) (“taking history 308 S.W.2d into consideration the cases, case and of the Baskin we think it cannot have [Moores’s] been the Court’s intention in the O’Rourke case to overrule those cases by implication”). points The dissent out that the court in Moores’s Case stated that “[w]e twilight are the more inclined to include within the zone the case of a engaged ordinary occupation although occasionally workman in an land going upon dry repairs”; (internal quotation a dock or vessel to make marks omitted) Case, supra, 167; thereby suggesting Moores’s 323 Mass. that a primarily ordinary engaged occupation workman who was not in an land twilight very would not fall within the zone. In the next sentence of Moores’s Case, however, “Moreover, working the court stated: the distinction between navigable repairing previously completed water in doing a vessel and precisely upon process the same work on water vessel of may thought practical validity.”Id., construction be a narrow one of doubtful clearly language primary 167-68. This indicates even if the claimant’s employment ship repair, had been his claim would have been treated the engaged is, shipbuilding, subject same as if he had been that as to state compensation Thus, law. as the court in Lane and the other authorities that recognized, Case, simply principle we have cited after Moores’s there is no apply reasoned, that courts can in a consistent manner to determine the jurisdiction. naviga- contours of exclusive federal An incurred over the By the decision vacating Mass. 167. Case, supra, 323 Baskin, States the United court of the California than it had further Court went even Supreme pre- Case, and effectively adopted Moores’s affirming cases. jurisdiction in such state in favor of sumption uncertainty introduced these cases the extent that To maritime administration into the and confusion to choose injured employees by allowing claims had been previously of claims types forum for also eliminated maritime, the cases purely held to the choice of about whether uncertainty confusion and the need the correct one would be that seemed distinctions hairline to maintain courts all, face.22 “After on their implausible States] [United quintessentially had been performing activities while ble waters argument zone, twilight reasonable because “a within the found to fall rely way that we 167. As the authorities . . . be made either [could] amphibious employment very recognized, nature of it is in the on have way. argument either can be made a reasonable help reading but argues Moores’s Case “cannot that this dissent variability uncertainty type into introduce the Congress sought have Court and scheme that [United States] Thus, a rule under believes that . . . the dissent since Jensen to overcome injuries some, all, stevedores are suffered not claims which but a rule under subject and uniform than more certain is agree. cannot The United the same. We are treated which all such expressed hardly less concern have in Davis could States Court perpetuation uniformity of a realm of exclusive as the understood with necessity of Rather, avoid “the jurisdiction. intent was to its clear federal case-by-case basis, coverage questions with all the administra handling on a uncertainty & entails.” 9 A. Larson that this and endless tive burdensomeness [3], p. Larson, supra, 145-130. § 145.05 L. Supreme Court’s references the United States also relies on The dissent Pennsylva Sun Ship, jurisdiction Inc. v. Jensen in under to exclusive federal id., in 719; were made nia, supra, 722. Those references see also 447 U.S. understanding general when interpreting Congress’ of Jensen the context of attempt however, act, to define the longshore and not in an the it enacted Id., injuries” scope the constitution. under of “nonlocal maritime current Sand & Gravel in Hahn v. Ross Island relies on dicta dissent further The (1959), “if case 272, 273, that the Co., 3 L. Ed. 2d 292 79 S. Ct. 358 U.S. provide [longshore would twilight ... the zone act] within the were not Hahn, omitted.) remedy.” quotation the (Internal marks the exclusive working barge with injured used in connection employee on a while docket, had better its overloaded Supreme Court, with opening gravel lagoon river dredging in a into and the of sand Id., longshore compensation Id., act. Oregon. under the 272. He received compensation employer workers’ had not obtained state 273. Because the against bring negligence employee action it coverage, was entitled the employer compensation claimed Oregon’s Id. law and he did so. under provided longshore act an because the the state action was barred that, remedy. Supreme Court held because Id. The United States exclusive recovery zone, longshore twilight did bar the act not the claim fell within the present language the dissent the Id. In the relied on under state law. twilight zone, case, that, the claim had not been within it also stated if the longshore jurisdiction been exclusive. Id. In dis- the act would have under Davis, Stewart, joined by Harlan, sent, under Justice contended Justice act, employee jurisdiction longshore the because a court had found under recovery regardless the claim fell that act of whether was limited to under (Stewart, J., dissenting). twilight 274-75 into the zone. Thus, teaching gleaned primary is that states have to be from Hahn employee while on a boat in over an incurred hardly with, navigable waters, a result that is consistent much less dictated twilight by, incurred outside the Jensen. The court’s statement dicta; subject (1) (2) zone would be to exclusive federal is: and twilight determining the contours of the zone. of no assistance contention, Moreover, contrary enacting longshore to the dissent’s subsequent amendments, Congress pro act and was not concerned with uniformity law, ensuring tecting the but with a minimum recov of ery workers, for all which our decision does not affect. waterfront Co., supra, (purpose 121-22 of See Calbeck v. Travelers Ins. 370 U.S. longshore compensation amendments to act was “to assure the existence of a remedy every ipjury, employees mercy leaving . . . at the of without delay uncertainty, expense, fighting litigation of out in whether their particular cases fell within or without state acts under ‘local concern’ Labor, supra, (manifest purpose Dept. doctrine”); U.S. 252 Davis v. provide certainty compensation longshore for workers act was to partly partly navigable waters). If uniform whose duties were on land and compensation claims—understood as exclusive fed treatment of waterfront primary concern, Congress’ claims—had been eral over such prevented preempting application nothing of state law from it from act, Ship, which it did not do. See Sun Inc. the field of the 720; Co., supra, Pennsylvania, supra, v. Travelers Ins. Calbeck 126-27. purpose conclusion is incorrect because one The dissent states that this provide employers waterfront with limited of the 1972amendments was to however, predictable liability. purpose, to all workers’ That is common imply any special legislative and does not concern schemes uniformity any event, protecting whatever with of maritime law. In uniformity Congress’ understanding its desires for of the Jensen rule or defini- ways spend tracing ghostly to its time than ‘repair’ between, say, tional boundaries ‘reconversion,’ self-respect and too much and and its sense of humor to tell us with a face that award- straight in the former case compensation state workers’ ing uniformity law, while a would shatter of maritime A. Lar- similar award in the latter case would not.” 9 Courts Larson, supra, [3], p. son & L. 145.05 145-131. § only required not had been to differentiate between virtually types Jensen, identical of work under these they required jurisdictional make deter- also had been solely precise on the loca- geographical minations based employees stepped who into and out of state tion of many times over the course of their work- hardly any have had days, another factor could law governing navigation real on federal bearing commerce.23 authority respect scope

were, they binding with to the current are not 2, one, 8, three, § § under article and article federal constitution. repeatedly Finally, although suggests that our decision endan- the dissent thereby uniformity gers the of maritime law and creates a risk to interstate commerce, explains the or the mechan- and international it never substance pressed shipping company hard to believe that a ics of this risk. We are ports state’s the difference will choose one state’s over another because between the amounts of state and federal that workers receive traditionally waterfront claims that were considered to the fraction of subject jurisdiction, greater purely maritime, concurrent is but now are state than another. one Wilson, Stevedoring Co. App. 205, 210, See, e.g., Allsouth 220 Ga. Stevedores, Inc., Richard v. Lake Charles (1996); 2d S.E.2d 348 95 So. denied, (La. App. 1957), 78 S. Ct. 2 L. Ed. 2d 529 cert. Richard, that, under Moores’s Case (1958). In the court concluded Baskin, employee a claim who had the state had injured working ship floating waters. Richard been while on a Stevedores, Inc., support conclusion, v. Lake Charles 832. In of this plaintiff pointed longshoreman been the court out this same “[h]ad employment injured manner, in the same in the course of his with the same reported day, employer subjected employer, having work the same his premiums, plaintiff paying to the same the same insurance risks [the] recovery undoubtedly have been entitled to under the Louisiana would case, compensation law, even before the Davis had he been on land improba- find it Flowers, we do not the court

Unlike Supreme Court welcomed States ble that the United Case, escape to by Moores’s opportunity, presented compelled are to morass. We jurisdictional from this never has Jensen conclude, therefore, although Supreme States overruled, the United expressly been Baskin, and in Moores’s Case Court, its decisions apply no will clearly longer has that it signaled state’s claims under a Jensen rule to bar waterfront the claim law in cases which compensation workers’ solely on the basis would have been barred previously was particular type employee of work that the location at the precise geographical in or his engaged Baskin, injury.24Instead, after Moores’s Case time present gangplank accident aboard or on the a few feet distant from the ship . . . .” Id. Larson, supra, [3],p. (“the § A. L. 145.05 145-129 See 9 Larson & [United apply compensation to its Court not forbidden state States] [has] only years injury [pursuant . few law to a . . since waterfront Jensen] [longshore passed”). after the was act] Director, Compensation Programs v. North Workers’ Perini Office of 315-16, Associates, the United States Court River longshore act, that the as amended in 1972to include a “status” concluded injured engaged requirement employee must have been in maritime that the by employee employment, applied involving to a claim incurred an employment injury, engaged at the of his who had not been in maritime time Rehnquist argued dissenting navigable had been on waters. Justice in a but opinion Congress covering that had not been concerned with such because, “[wjhatever longshore act force the Jensen when it amended the had, perfectly may that a shore-based worker rule once have it is now clear may normally program still recover who is covered a state injured Surely though navigable waters. no benefits even he is over question the fact the construction worker Member of this Court would though was in this could have received a state award even he case injured. barge he was The concern about on a in the Hudson River when inability protect may temporarily land-based workers who of the States longer significant (Rehnquist, cross the Jensen line is no 339-40 majority responded position J., dissenting). is no means “[t]his id., n.30; ‘perfectly clear’ and cited a number of lower court cases jurisdiction. Id., federal that had held that such claims fall within exclusive majority decisions in Moores’s Case 320-21 n.30. The did not cite its own Baskin, however, or the other state cases in which the courts had waterfront claims concluded that the states have question being ... is not whether the was “[t]he repaired employee whether the being constructed or [or land or on the was on an extension of the employment relation (as but whether the distin- waters] specific done loca- being from the work guished [or tion of the at the time of the employee] accident) sufficiently that the state has a local land-based] [and compensation remedy in its providing valid interest employment relation was so characteristi- whether the state law would work cally application maritime that of the law.” prejudice general material quotation in internal marks omit- (Emphasis original; Co., Stevedoring Lane v. Universal N.J. ted.) Compensation Appeals Duong v. Workers’ 29; see also Board, App. 980, 984, Rptr. 169 Cal. 3d 215 Cal. “primary consideration to the (court give must (1985) mainly employment and the land-based character contract, opposed as employment state-based actually was in injury whether the site in way, deciding Put another whether waters”). jurisdiction compensation a maritime workers’ has precise is no the claim, longer the determinative factor activity or at employee’s nature of the his location the injury, application of his but whether the time materially claim could compensation state’s law to the uniformity undermine the of the federal laws governing employer When the and the navigation or commerce. employee locally based, employment are contract performed locally employer required is and the is under compensation employee act for the the state to secure any injuries, perceive, land-based we cannot none of the cases exclusive federal finding how the explained, under these circumstances has any event, Pennsylvania navigable waters. In asm Railroad Co. O'Rourke, supra, scope of state over maritime compensation claims was not before the court Perini North River Associ ates, question necessary holding was not for the and the court’s dicta on of the case.

application the state act to a claim employee incurred on the state’s territorial waters materially could undermine the of fed integrity eral maritime law.25 Dept. See Davis v. Labor, supra, 317 U.S. 256 (twilight persons zone “includes . . . who are, as a matter of actual administration, pro fact tected under the state act”). Accordingly, we conclude that the state has over such claims.

With principles these in mind, we must determine whether constitutionally state act applies to the plaintiffs claim in present case. weAs have indi- cated, plaintiff injured while unloading floating navigable waters New Haven harbor. The defendant concedes had plaintiff “been in a land-based accident he would be covered under the act],” thereby and implicitly concedes that [state Jensen, employee employed We note the deceased had been by Kentucky corporation New York ship that owned the on which he was Jensen, supra, killed. See Southern Co. v. 244 U.S. 207. The state Pacific against Id., of New York entered an award the owner. 209. The United constitutionally States Court concluded that New York could not “subject foreign ships ports coming obligations into her to such as those imposed by Compensation appear her Statute . . . .” 217. It does not Case, Baskin, that Moores’s Lane and the other cases in which courts have jurisdiction concluded that the state had over waterfront claims; opinion; against see foreign footnote 15 of this involved claims ship owner, may distinguishable ground and it be that Jensen is on this and twilight today. would not fall within the zone if decided Leszczymski Oyster Wefurther note that our decision in v.Andrew Radel Co., supra, 102 Conn. involved the death of a crew member who had Bridgeport navigable fallen off a boat while it was docked in waters. twilight adopted applies only The zone doctrine in Moores’s Case to water- government colorably front claims over which the federal has longshore act, by seamen, by under the not to claims which are covered opinion. scope the Jones Act. See footnote 6 of this The of concurrent state by seamen, all, and federal over claims if it exists at is not present Accordingly, Leszczymski only before us in the case. we overrule suggests navigable to the extent that it that all claims on the water, including requirements twilight those that meet the zone doc- trine, government. are within the exclusive of the federal that the claim the that the board concluded sole reason injury occurred on was was that the barred employment that relation insuf- waters, and not the act application of the state under ficiently local that materially would undermine these circumstances Thus, law.26 we need not uniformity of federal maritime improperly board plaintiffs claim address denial of his address the commissioner’s failed to his and award and motion finding motion to correct the summary remand. claim is conclude, therefore, plaintiffs We Case and Baskin and falls Moores’s by governed adopted zone as squarely twilight within doctrine Supreme Court in those cases. See the United States Co., Stevedoring 63 N.J. Lane v. Universal (no from “unloading” “repair” claims distinguish reason to Case claims at issue Moores’s Baskin). Accord improperly the board deter ingly, we conclude that jurisdiction of the claim was not within the mined that the commissioner. is and the case is remanded to reversed judgment plaintiffs appeal. with direction to sustain the board BORDEN, NORCOTT, KATZ, PALMER opinion this Js., concurred. VERTEFEUILLE, Under rule articulated

ZARELLA,J., dissenting. will be compensation the state laws extended majority, coexist with federal seaward and allowed to injuries on any navigable claim incurred “involving locally are employee the and the employer waters when performed within based, employment the contract is expressly represented plaintiff the board that the defendant does The plaintiff only, is a resident and the in Connecticut the Connecticut business injury within waters of the state. defendant occurred the territorial claim, disputed finding relevant was never but contended the sole ship floating plaintiff was on waters. that the on place on the partly land, the state and took employer required territorial waters and the state’s [is] Compensation] under the state [A]ct [Workers’ compensation any land based secure p. 5; cf. by employee.” Majority opinion, incurred Co., Stevedoring Lane Universal 20, 30-34, v. 63 N.J. will Thus, emphasis 304 A.2d 537 be on the (1973). “employment relation” and “the determinative factor precise employee’s no nature of the longer [will] [be] activity time of injury, or his location at the his but law application whether the of the state’s materially uniformity to the claim could undermine the navigation of the federal laws or commerce.” governing Majority opinion, p. majority adop- 32. The reasons that jurisdictional tion of such a rule will reduce the uncer- since Southern tainty and confusion that has reigned Jensen, Co. 37 S. Ct. 61 L. Pacific Ed. 1086 in cases in which waterfront claims (1917), previously would have been barred type because of the employee of work in which the engaged or because injury. of his location at the time of the I disagree. my view, represents the rule departure unwarranted from Supreme United States precedent, Court will have the deleterious effect of freeing from traditional constitutional restraints and will undermine the uniformity harmony of maritime law that the majority purportedly protect. seeks to Accordingly, I respectfully dissent.

I by I begin reviewing applicable principles. legal In light of the fact that “this area of the law been [has] dominated —indeed created —from the beginning United States Court, important far the most inquiry what Court revealed as [is] [has] to its actual probable position . . . .” 9 A. Larson & L. Larson, Compensation Workers’ Law (2006) 145.05 § my on

[3], p. 145-127. I therefore focus discussion precedent. Court has Jensen, Since the United States Court attempted each time to balance several considerations injuries. it has maritime These involving ruled on claims uncertainty for the (1) include a desire to minimize respect of coverage, with to the source worker uniformity impede as not in the law so (2) encourage hamper commerce, (3) interstate and international work- equity ensure a of the relief available to degree maintain the states, (4) ers within the different jurisdic- exclusive federal requirement constitutional indisputable maritime tion cases occur waters. navigable on ways seemingly infinite number of Because of may injured, legal in which maritime workers intensive, analysis any case is fact sometimes given principles for general it difficult to articulate making a review of the case law guidance. Nevertheless, future one or another of the times, at different suggests has enumerated considerations caused previously for particular Jensen, in a direction. court move line of example, notable for drawn clear having is state and federal at demarcation between v. Jensen, Southern Co. water’s edge. See Pacific had of maintaining 244 U.S. 217-18. This the benefit uniformity by preventing of maritime law the states what deemed an area of from the court intruding It jurisdiction. Id., 218. also reduced exclusive federal where state and federal uncertainty making clear purposes seeking and ended for jurisdiction began Jensen line compensation. time, At the same inequities exposed the fact that substantial existed provided had availability Congress of relief because injuries incurred no for maritime many waters, whereas states had workers on degree coverage some provided at least

37 injuries See, land. 9 A. e.g., related that occurred on Larson, supra, [2],pp. through Larson &L. 145.02 145-5 § relatively perhaps law clearer 145-6 (“the clear — since, clarity than it has ever been but the was obtained price at the to thousands of denying very ‘amphibious’ workers in hazardous occupations”). Thereafter, Court established the “mari Ship time but local” doctrine in Grant Smith-Porter Rohde, Co. v. 257 42 469, 157, U.S. S. Ct. 66 L. Ed. 321 (1922). case, the court determined that states permitted jurisdiction would be to extend their injuries seaward to coverage “non-maritime” on naviga waters, ble injuries directly which were defined as not related to navigation or commerce. 476. Because injuries were local, considered the doctrine did not uniformity interfere with the of maritime law or with the exclusivity of federal purely maritime injuries. See id. However, newly articulated rule states assigning injuries sole over such required case-by-case determinations, forced workers to make difficult choices as to applicability of a state’s compensation scheme uncertainty and created employers for as to whether their contributions to a state insurance fund would be sufficient to protect them liability. Director, from See Compen Workers’ Office of Programs sation Associates, Perini North River 297, U.S. 306-307, 103 634, S. Ct. 74 L. Ed. 2d 465 (1983). It also failed to address the continuing differences provided by the coverage various states and the lack of federal coverage strictly incurred on navigable waters. See John Baizley Iron v. Span, Works 281 U.S. 222, 230-31, 50 S. Ct. 74 L. application Ed. 2d 819 (1930) (rejecting of state compensation laws because repairing completed ship in navigable waters had direct and intimate connection with navigation and commerce). situation, by this inequities created remedy

To Work and Harbor passed Longshoremen’s Congress 1927; c. act) (longshore Act Compensation ers’ at 33 U.S.C. § as amended codified Stat. demarcation the Jensen line of codified seq.; et which provided and federal between state workers for maritime previously lacking coverage recovery through . . . “if waters injured navigable on validly may not compensation proceedings workers’] marks quotation law.” (Internal state provided be Industries, Labor & Dept. v. Davis omitted.) of 2d 249 (1942). 87 L. Ed. S. Ct. 249, 253, 63 U.S. injur whether however, continued, regarding Disputes to com directly related waters were navigable ies on puzzling results. with sometimes navigation, merce or Sales, Inc., Boat v. Motor See, Parker e.g., (worker L. Ed. 184 (1941) 245-17, 62 S. Ct. clearly motor was outboard testing while who drowned normal though even employment, in maritime engaged in This character). nonmaritime primarily duties were zone” “twilight of the articulation led to the court’s supra, 256, to Industries, Labor & Dept. Davis of cases. veiy close questions jurisdictional resolve who was petitioner, husband of the Davis, a falling after off had drowned benefits, state seeking steel examining while waters navigable barge lying Id., bridge. a dismantling of process in the he had cut reversed the Supreme Court States 251. The United denying Court Washington of the decision difficulty in of the benefits because petitioner state provided under relief should whether determining defined the The court Id., law. 257-58. or state federal uncertainty between area of zone” as that “twilight doctrine “maritime but local” under the when the occurred federal exclusive inwas essential character waters but its in which “shadowy area”; id., 253; 256. In that Id., doubt. on the “horns employers were thrust both workers and they because could not jurisdictional dilemma” of [a] in advance of whether state litigation be certain separating “the line applied; id., 255; federal law with scope the two undefined and undefinable being precision” being largely exact and such determination question fact, “presumptive the court would give appropriate . of the fed- . . to the conclusions weight authorities,” in the absence of substantial evidence eral contrary, constitutionality appli- to the to the Consequently, border- cable state statutes. 255-56. coverage line cases would be resolved favor of initially had worker [5], A. & L. 145.02 Larson, selected. 9 Larson § p. 145-10. concept zone” reduced uncer “twilight

tainty could apply because maritime workers now benefits in “where [long- state federal circumstances appli where shore was available and the coverage act] cability determine”; of state law was difficult to Compensation Director, Programs Workers’ Office of Associates, supra, 309; v. Perini North River 459 U.S. compensation and be assured of without suf receiving fering serious financial loss due to an error of choice. v. Dept. Industries, See Davis Labor & of uniformity U.S. 254. The maritime law would be only juris affected in which marginal situations state any was, event, questionable. “twilight diction The injuries subject zone” did not affect to exclusive federal jurisdiction because their essential character was not Da,vis expressly in doubt. In the contin fact, recognized ued existence of the Jensen line separating federal jurisdiction state when it stated that the “[o]verruling jurisdictional] prob Jensen case would not solve [the lem” because the had court held Parker that Con act, gress, enacting “accepted the had the federal between state and demarcation Jensen line of Id., 256. jurisdiction.”1 major was issued ruling next Supreme Court’s 114, 82 S. Ct. Co., 370 U.S. v. Travelers Ins.

in Calbeck in which it determined (1962), L. Ed. 2d 368 1196, 8 jurisdiction could and federal concurrent state local” by the “maritime but governed exercised in cases juris- of federal The extension id., See 126-27. doctrine. law had covered state previously diction to cases uncertainty as to whether less ensuring the effect remedy applied when exclusive in the waters, equity greater navigable on occurred to and, states in different available to workers relief than state were higher federal benefits the extent that all result, law. As a uniformity in the benefits, greater waters injuries on navigable incurred workers who affirmation of the asserting Court’s that the United States rigid “hardly ringing endorsement of constitutes line in Davis Jensen unnecessary hyperbole suggest rule,” majority that I uses Jensen majority unequivocally Footnote 9 of the endorses Jensen. that Davis believe “ringing endorsement” opinion. view Davis as is not the case. I do not This precluded zone,” because, creating “twilight the court of Jensen “shadowy occupied area” in cases that federal exclusive provide incurred laws also could in which state Industries, supra, Dept. Labor & waters. Davis point acknowledged merely that areas of that the court I make the even cre continued to remain and federal exclusive state after jurisdictional line” “twilight with the “doubtful zone” to deal ation of the appear majority id., 256; separating two; does not a conclusion that subsequently dispute. Although endorsed concurrent Court doctrine; falling see “maritime but local” within the in cases 126-27, 1196, Co., 114, L. S. Ct. 8 Ed. v. Ins. 370 U.S. Calbeck Travelers jurisdiction interpreted (1962); mean that concurrent Davis to 2d 368 Ship, zone”; “twilight falling see Sun within the in cases could be exercised 718, 2432, 2d 458 Pennsylvania, S. Ct. 65 L. Ed. Inc. out, scope majority points demonstrating, that “the (1980); as the thus jurisdiction scope negatively of state longshore not define act does developments constitution,” do not diminish these under the [federal] suggest that exclusive Jensen or in Davis did not overrule fact that the court respect within jurisdiction longer that did not fall with to cases existed no “twilight zone.” by would be covered act, regardless whether state law applied. also This modification to the “maritime but local” doctrine had no material effect on exclusive federal in cases in which an clearly was maritime in character. Congress amended the longshore pro- act to vide federal coverage that oc- curred on land the definition of expanding “navigable waters” to “any include pier, wharf, dry adjoining dock, terminal, building way, marine railway, adjoin- or other area ing customarily used an employer in loading, unloading, repairing, building a vessel.” L. Pub. No. 92-576, 2, 86 Stat. 1251 (1972), § codified as amended at 33 U.S.C. 903 (a). § The amendment defined workers eligible “any receive benefits as person engaged any maritime employment, including longshoreman or person other engaged longshoring operations, and any harborworker ship including repairperson, ship- shipbreaker builder and . . . .” Pub. L. 92-576, 2, No. § 86 Stat. 1251 (1972), codified as amended at 33 U.S.C. 902 (3). Previous § language providing that federal coverage recovery available “if . . . through may proceedings validly not workfers’] provided by State law” was eliminated; Pub. L. No. 92-576, 2, 86 § Stat. 1251 (1972); thus recognizing the principle of concurrent established in Cal- beck. At the same time, enacted a Congress generous increase in federal benefits that exceeded most existing state benefits. The amendments inspired were by, among other things, a desire to inequities eliminate the created when workers whose duties required them to frequent make trips between continually shore moved in and out of federal and received different benefits depending they on where were injured. See Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 262-63, 97 S. Ct. 53 L. Ed. 2d 320 (1977). amendments also sought to eliminate dis- by workers in different benefits received parities the owners injuries protect ship and to states for land based from employers seeking of lawsuits longshoremen and See id., on waters. 261-63. damages navigable in tort amendments, which allowed Accordingly, the to the same federal on land and sea receive workers they injured, of where were ensured benefits regardless as to the certainty employers both and workers for uniformity compensation, greater and of amount source in benefits for work- in the law2 and an overall increase subsequent majority enacting “in the act and The states uniformity amendments, Congress protecting with the not concerned recovery law, ensuring a for all but with minimum of maritime majority opinion. is . . . .” of the This waterfront workers Footnote intent, representation Congressional indicated the of as not accurate report explaining following passage Congressional the from committee present Act, longshoremen purpose and of “The insofar as the act: only injuries concerned, repairmen are which occur builders and covers Thus, coverage ‘upon waters of the United States.’ of occurring edge;injuries present stops are Act on land covered at water’s Compensation disparity by laws. The is a State result Work[ers’\ benefits type injury depending payable side . . . same which of for of edge and in which State the accident occurs. water’s permit compensation intent the Committee is to “The uniform of employees system apply this would be covered Act to to who otherwise 92-1441, Rep. pp. part activity." (Emphasis added.) H.R. No. their for 92-1125, Rep. pp. (1972); (1972); also P.C. S. No. 12-13 see 10-11 accord 328, (1979) Ford, v. 100 S. 62 L. Ed. 2d 225 Co. 444 U.S. Ct. Pfeiffer coverage”). apply simple, (“Congress to uniform standard of intended explained Terminal in Northeast Marine Court further Caputo, main concern of the 1972 Co. “[t]he accommodating scope coverage but with was not with the Amendments (1) shipowners groups: who interested were discontented the desires three many allowing to the doctrine of with the maritime workers use decisions fault; damages shipowners regardless of recover full from ‘seaworthiness’ to who, judicially employers longshoremen (2) under another created of the thereby indemnify doctrine, required shipowners and lose the could to remedy; exclusivity (3) benefit of intended inadequate improve who wanted to the benefit schedule deemed workers by ‘specifically sought parties. Congress meet these desires eliminat- all longshoremen against ing brought under the vessels suits outlawing actions “hold doctrine of seaworthiness and indemnification against indemnity agreements!; continuing] to allow ves- suits harmless” id., ers across the nation. See wanted (“Congress compensation system apply employees a uniform to who would otherwise be covered longshore] [the ... part activity. system for of their It wanted a [a]ct depend that did not on the fortuitous circumstance of whether the occurred on longshoreman] [to omitted; quota- land or over water.” internal [Citation tion marks omitted.]). years later, Ship,

Several Sun Inc. v. Pennsylvania, S. 720-22, 100 Ct. 65 L. Ed. 2d 458 (1980), Court held that the 1972 amend- preclude ments did not for land injuries based within fell act. Concur- rent permitted injur- thus was for maritime ies on except both land and sea in cases of exclusive jurisdiction beyond federal the “twilight zone” in which clearly maritime injured workers were over indisput- ably A. navigable waters. See 9 Larson & L. Larson, [4], p. 145.07 In sum, § 145-143. Congress and the Supreme Court gradually extended federal across the shoreline and increased federal benefits over sixty-five years course of to create a uniform body of law that overcame the inequities arising from the negligencef; seis or raising] other third for and parties benefits to a level commensurate with salaries and with present day the needs of ” workers whose sole will be under the Act.’ support payments 261-62. [longshore] “the not a Thus, remedial [a]ct [is] simple statute intended for designed the benefit of the workers. it was Rather, strike a balance longshoremen between the concerns of the and harbor workers on the one and their on the other. hand, employers their Employers relinquished predictable liability. exchange for limited and defenses to tort actions in the limited Employees because accept recovery receive relief they prompt ” without (Empha expense, that tort actions entail. uncertainty, delay added.) Director, Morrison-Knudsen Construction sis v. Co. Work Office of Compensation Programs, ers’ 461 U.S. 624, 103 S. Ct. 76 L. 635-36, (1983). Ed. increasing 2d 194 reducing addition to Thus, benefits and for maritime uncertainty the 1972 workers, amendments promoted goal equally important in the law predictability uniformity for employers. dispari- compensation laws and the

multiplicity of state for mari- between federal benefits ties had existed and state time incurred waters land, injuries that occurred on benefits with exclusive federal interfering without appropriate cases. II by majority disrupts rule this scheme adopted The state permit effect is to concurrent practical because its over all injuries federal waters, eliminating thus exclusive occur any long- covered federal major departure a act. rule thus constitutes shore The precedent. Supreme Court from United States rule is on its conclusion majority’s based Supreme Court, in its decisions “the States United Moores, Co. 875, v. U.S. 69 S. Steel 874, 335 [Bethlehem aff'g Moores’s curiam),3 417 239, 93 (1948) (per Ct. L. Ed. and Baskin Case, 478 162, (1948), 323 Mass. 80 N.E.2d Commission, 338 70 Industrial Accident v. U.S. (per vacating L. Ed. 523 (1949) curiam), S. Ct. clearly has (1949)], 201 P.2d 549 App. 89 Cal. 2d the Jensen rule apply will longer that it no signaled compen a state’s workers’ bar waterfront claims under previously would law in which the claim sation in cases solely particular on the basis have been barred his employee type engaged of work that injury.” at the time of location precise geographical majority, according Majority opinion, p. Thus, every facts to land pertaining case waterfront I do not “twilight sea falls within the zone.” now Case and Baskin are susceptible that Moores’s agree interpretation. to such broad simplicity, to the United In the we refer States interest of Moores, supra, 874, as Steel Court’s decision in Bethlehem Co. Moores’s Case. Baskin, Moores’s Case and the Massachusetts

Supreme Judicial Court and California District Court of Appeal respectively considered brought whether claims by workers seeking

incurred ships while fell within the repairing “twilight zone.” See Baskin v. Industrial Commission, Accident App. 637-38; 89 Cal. 2d Case, supra, Moores’s Mass. 167-68. Almost earlier, two decades Court had Baizley held John Iron v. Span, Works supra, 281 222, that, U.S. although the issue of whether work has a direct relation to navigation or commerce “must, of course, be determined in view of sur- [the] rounding circumstances as arise”; cases id., 230; completed “[Repairing lying navigable waters has direct and intimate connection with navigation [a] and commerce . . . .” Id., 232.

In John Baizley Iron Works, the worker had been injured while painting angle irons and repairing the floor in the ship’s room. engine Id., 228-29. In contrast, the Case, worker Moores’s also a repair case, was a or “rigger” “tag man” whose duties included operators assisting crane the directing movement of material piers from on dry land to ships docks or but required only infrequent work ships. (Internal quota- tion marks Moores’s omitted.) Case, supra, 323 Mass. spent he Although most of his time on the piers, the worker was slipped when he on board a ship undergoing repairs while moving to a location where the operator crane could see him purpose better for the of giving signals. Id. The Massachusetts Supreme Court noted that, although ship repair work had been consid- ered a matter of exclusive federal since John Baizley Iron Works, the “twilight zone” estab- lished in Davis had changed the law “up a setting escape means of from the difficulties involved draw- the ing line between State and authority Federal under . . . Jensen . . . .” Id., 166. The Massachusetts court

explained: apparently some heed must still “[Although authority paid line State and Federal be to the between the Jensen case, following as down the cases laid has now the fixing the become important question most zone,’ new and for ‘twilight of the boundaries of the test us no rule or other gives this the case [Davis] . subjective test of doubt. . . than indefinable and the attempt is not to Probably proper therefore our course previous matter and to reconcile through to reason the preserve distinction, or to fine lines of but authorities, to futility attempting the of simply recognize rather Davis the and to treat ‘illogic,’ reason about logically revolutionary decision deemed case as intended escape situation and as necessary to an intolerable within a wide circle doubt all to include designed of aspects pertaining both to cases waterfront argument where a and to sea reasonable land examina- way, can bemade either even a careful though previous might decisions disclose tion of numerous authority way one other.” apparent weight omitted; Id., 167. court emphasis added.) (Citation include within “We are more inclined to concluded: in an engaged zone’ case of workman ‘twilight occasionally although ordinary occupation going land dry repairs or vessel to make because upon a dock type decided in the particular the latest case Baizley John Iron States, United Court . . . exclusively . . . held one Works to be although dissented, justices three of the cognizance, of Federal opinion Black in his [Hugo Justice L.] [Associate] Baizley Iron Davis case refers to the [John] Works case responsible as if it one of those were decision, In a per confusion.” Id. curiam existing Davis, affirmed Court, Supreme citing the United States the state award upholding the Massachusetts decision Moores, Steel Bethlehem Co. compensation. 335 U.S. 875.

The following year, the California District Court of Appeal request compensa denied a worker’s for state ship repair tion in another case, that the concluding fell within jurisdiction. case exclusive federal Baskin v. Industrial Commission, supra, App. Accident 89 Cal. 2d 637. The worker was a “materialman” whose duties performed entirely were almost Id., on shore. 632. Despite standing instructions that he not be sent aboard ships undergoing repairs, he was ordered on a board ship that was being repaired planks to assist in moving from one hold to another because the crane was unable Id., to do so. ship, 633. While aboard the he fell and injuries. suffered Id. court, The California John citing Iron Baizley Works, concluded that the case did not fall within the zone” because the “twilight repairs had a direct and intimate connection with navigation commerce, and, therefore, application of state law would invade jurisdiction. federal appeal, On United States Court vacated the decision and remanded the case for reconsideration in light Moores’s Case and Davis. Baskin v. Industrial Accident Commission, supra, 338 U.S. 854. Court’s decisions in Moores’s Case and

Baskin represented departure from John Baizley Iron they Works because indicated that the court now believed that ship repair incurred in cases or cases facts relating to both land and sea did always not fall within exclusive federal jurisdiction, as the court had suggested previously. In neither case, however, did the state court nor the United States Supreme Court conclude that ship repair all cases nec- essarily fell within the “wide doubt”; circle of Moores’s Case, supra, 167; Mass. constituting “twilight zone.” The Massachusetts court simply stated that “[w]e are the more inclined to include within ‘twilight zone’ the case engaged workman ordinary occupation land although occasionally upon a going repairs”; make dry (emphasis added) dock or vessel to also that thus that the court believed id.; suggesting ordinarily per- who ship repair involving cases workers would not within ships formed duties on board fall their zone.”4 the “twilight Case nor did

Moreover, in neither Moores’s Baskin opinion pre- choose to issue Court analysis and that legal kind of discussion senting the wished to expected repudiate had it might have been entirely Works in order to establish Baizley John Iron federal no that exclusive principle case. most any ship repair The longer govern should after Case and Baskin is that can be said Moores’s repair did not ship the court that some cases believed with navigation have a and intimate” connection “direct courts con- commerce, and, consequently, could within the zone.” falling “twilight sider cases as those expressly Indeed, Massachusetts court acknowl- federal in cases continued exclusive edged when navigable waters involving maritime paid heed still be to the line it stated that “some must authority” Federal and that the “twi- between State and 4 majority in the next that the Massachusetts court’s reference states making repairs between to a com sentence the fact that distinction ship pleted ship performing similar on a waters and work practical validity”; navigable waters is of “doubtful under construction on clearly Case, supra, 168; Mass. indicates “even if the Moores's repair, primary employment ship his have had been claim would claimant’s engaged [by he the same as if had been been treated the Massachusetts court] subject is, shipbuilding, law.” as state Footnote disagree unsupported majority opinion. I because such a conclusion is only express the court. did the Massachusetts court words of Not “twilight cases that it “more inclined” to include within zone” Case, “ordinary occupation[s]”; engaged in land Moores’s workers Jensen; id., 166; supra, 167; recognized overrule it that Davis did not also paid must still to the line between State and and stated that “some heed authority following . . . .” Federal as laid down the cases Jensen case however, importantly, suggested that future it never all More subject repair cases should be to concurrent state in Massachusetts jurisdiction. id., 166-67. federal See light zone” included “all water front cases involving aspects both to the pertaining land and to the sea where a reasonable can argument way be made either . . . .” (Emphasis added.) Id. When the Court decided year later, Baskin one it again determined the facts jurisdictional raised sufficient place doubt to that case within the zone.” in “twilight Significantly, both Baskin, injured Moores’s Case and per- workers formed most of their duties on land and were not engaged type in the same of repair traditional work injured as the worker in John Baizley Iron Works.5In fact, the worker in Baskin had a standing violated order not to ships board when he went on board the ship to assist in moving planks. Baskin v. Industrial Accident Commission, supra, App. 89 Cal. 2d 633.

That Davis, Court did not intend Moores’s Case and Baskin to eliminate the Jensen line of demarcation by is confirmed the court’s direct and indirect subsequent opinions references in to exclusive federal example, waterfront cases. For in Hahn v. Co., Ross Island Sand & Gravel 358 U.S. 272, 273, 266, 79 S. Ct. 3 L. Ed. (1959), 2d 292 which the court reversed the decision of the Oregon Supreme Court an action dismissing worker state seeking compensation injury for an incurred a barge dredging sand gravel and in navigable waters, the court declared per in a curiam decision “if the case were not within the zone’ . . . ‘twilight the [longshore] [a]ct provide would remedy.”6 the exclusive (Emphasis 5Compare Commission, supra, Baskin v. Industrial Accident 89 Cal. App. 632-33, Case, supra, 164, Baizley 2d and Moores's 323 Mass. with John Span, supra, 230, Iron Works v. U.S. 6 majority grossly oversimplifies misrepresents Hahn when it proposition states that the case stands for the that “states have involving] employee an incurred an while on a boat [claims navigable waters" and that the court’s reference to “exclusive federal (1) dict[um]; (2) determining is: of no assistance twilight majority opinion. Properly contours of the zone.” Footnote 22 of the understood, proposition Hahn stands for the that the act does prevent obtaining not worker from state benefits Johnson, Operating Co. v. In Nacirema added.) 24 L. 2d 371 the court (1969), 90 S. Ed. U.S. Ct. previous permitted decisions “had observed that its seaward remedies in narrow areas [the Jensen] 221; thus line”; added) id., suggesting (emphasis incurred over category broad jurisdic- subject to exclusive federal waters remained Ship, Inc. Pennsylvania, in Sun Similarly, tion. several references to the the court made viability jurisdiction. federal continuing exclusive that, 1972, “marine-related court first noted before jurisdictional spheres of as fell one three injuries within Jensen extreme, At they moved landward. the furthest injuries fall under that nonlocal maritime commanded ‘upon injuries ‘Maritime but local’ the [longshore act]. . . States’ . could waters the United navigable or under compensated [longshore under the act] beyond law. suffered state And admiralty within the of federal range waters —albeit only jurisdiction remediable under state law.” —were Thereafter, Id., 719. the court also (Citation omitted.) ran concur- pre-1972 [longshore that “the stated act] with remedies in the ‘maritime but local’ rently state adopting the 1972 amend- zone”; id., 720; jurisdiction landward, federal Con- extending ments “accepted had not intent to alter the gress expressed jurisdiction that federal would coexist understanding in that in which the laws field with operate the Jensen may constitutionally under latter Id., 722. The court thus (Emphasis added.) doctrine.” of the Jensen doc- existence expressly recognized Co., supra, “twilight v. zone” Hahn Ross Island Sand & Gravel in a case. Virgin Corp., 935, 273; v. Islands 903 F.2d see Peter Hess Oil 358 U.S. also denied, 783, 1990), L. Ed. (3d 498 111 S. Ct. 112 2d 947 Cir. cert. U.S. Moreover, purpose determining (1991). I do not cite Hahn for “twilight simply to zone” but demonstrate the “contours” recognize federal cases Court continued to exclusive years following Moores’s involving iryuries in the Case and Baskin. thirty years than after Moores’s Case and trine more impression alter the Baskin, nothing and said to jurisdiction still in cases governed exclusive federal injuries.7 Accordingly, nonlocal maritime Court has narrowed the doctrine although jurisdiction, federal it has not overruled of exclusive ship repair Jensen, even cases. jurisdictions federal and state also have contin

Other exclusive federal recognize ued decided after Moores’s Case and Baskin. repair cases Chitty, 1150, 1151, v. 415 F.2d See, e.g., Hughes subject juris (claim Cir. to exclusive federal (5th 1969) carpenter injured repairing diction when while 220, 221, Co., Flowers Travelers Ins. 258 F.2d ship); subject Cir. to exclusive federal (5th 1958) (claim when welder was while repairing denied, ocean cert. 79 S. going tanker), Ct. 3 L. Ed. 2d 582 (1959); Wellsville Terminals Compensation Appeal Board, Co. v. Workmen’s 534 Pa. 333, 335, 338-40, subject 632 A.2d 1305 (1993) (claim jurisdiction injured federal exclusive when welder was Co., while Wixom v. Travelers Ins. repairing barge); 7 majority juris The minimizes the court’s references to exclusive federal injuries Ship, Inc., diction over nonlocal maritime in Sun when it claims attempting scope that the court was not “to define the current of ‘nonlocal injuries’ major maritime under the constitution.” Footnote 22 of the [federal] ity opinion. majority point that, full-fledged misses the in its most recent opinion addressing jurisdiction concurrent state and federal maritime injuries, question “accepted Court declined to understand jurisdiction ing” subject in 1972that state matters was to Ship, Pennsyl certain constitutional limitations under Jensen. Sun Inc. v. vania, 722; supra, Director, Compensa 447 U.S. see also Workers’ Office of Programs Associates, supra, tion v. Perini North River 459 U.S. 306 (“[b]eginning Jensen, with decision in Southern Co. v. [the court’s] Pacific [supra, 205, 244 it held U.S. that there were certain circumstances in was] Art,. not, consistently III, 2, Constitution, § which States could with provide compensation injured Furthermore, workers”). it is preempted application irrelevant that the Court has not of light state law from the field covered exclusive federal required question. the fact that it has never been to decide that

52 subject App. 1343, (La. 1978) (claim 2d 1344

357 So. was when ironworker to exclusive federal v. Workers’ Duong Contra repairing ship). while injured 980, Appeals Board, App. 169 Cal. 3d Compensation subject to state 609 Rptr. (1985) (claim Cal. 981, 984, 215 repairing was while when worker Services, Inc., 433 So. v. Action Marine Beverly ship); juris subject to state 1983) (claim 139, 140, (La. 2d 143 from inhalation of toxic died diction when worker repairing ship). fumes while a stevedore plaintiff was present case, In the unloading and loading included whose duties step gave who fell because a and from cargo ship’s hold. The descending into way while he from that differs longshoreman of a stevedore work been as long regarded worker and has ship repair of a & Dock in nature. See Northern Coal strictly maritime 73 L. Strand, 88, 49 S. Ct. Co. v. on or stevedore longshoreman (1928) (work Ed. 232 waters has direct relation navigable lying vessel clearly maritime); and is navigation and commerce Jensen, Co. v. U.S. Southern Pacific in its ... is maritime work of a stevedore (“[t]he Transport Imbrovek, Co. v. U.S. Atlantic nature”); enter L. Ed. 1208 (1914) (“[w]e S. Ct. 52, 61, 34 and loading stowing the service tain no doubt that federal State and service]”). is aship’s cargo [amaritime since Moores’s Case have not hesitated courts incurred Baskin to conclude are covered unloading cargo loading waters while Liberty Noah See, exclusively by e.g., federal law. Co., Ins. 218, 1959); F.2d 218-19 Cir. Mutual (5th Commission, App. 379, 277 Ill. 3d Wells v. Industrial Ins. Ellis Travelers v. 386, (1995); 660 N.E.2d 229 380, In 2d 729 Co., 435, 464-65, (1961). 129 So. 433, 241 La. authority has cited no federal addition, majority the its conclu- support a stevedore in of injury to involving while injured workers sion that stevedores waters should navigable on their duties performing jurisdiction.8 I and federal to concurrent state subject Supreme that, because the conclude would therefore the still refers to Jensen and has not overruled Court in cases involv exclusive federal concept of waters, on injuries that occur ing bene plaintiff the jurisdiction to award the state lacks compensation laws. the workers’ fits under Stevedoring Lane v. Universal majority The relies on a 1971 treatise 20, quotes which from Co., supra, 63 N.J. Larson, for by law Arthur on workers’ Baskin, that, after Moores’s Case proposition the are outside previously held federal categories “[e]ither majority only involving stevedores cited are The three cases Wilson, App. 205, 469 (1996), Stevedoring v. 220 Ga. S.E.2d 348 Allsouth Co. Wilson, S96C0936, Shipping v. No. cert. denied sub nom. Strachan Co. Stevedoring Co.,supra, (May3,1996), Lane v. 1996Ga. LEXIS570 Universal 20, Stevedores, (La. App. v. Lake Charles 95 So. 2d 830 63 N.J. and Richard denied, 952, 535, (1958). 1957), cert. 355 U.S. 78 S. Ct. 2 L. Ed. 2d 529 Stevedoring Co., Georgia Appeals Allsouth Court of concluded split authority among light states that have dealt with the issue of ipjured on of exclusive federal cases stevedores navigable waters, policy the matter should be resolved on the basis of Stevedoring Wilson, supra, v. considerations. Allsouth Co. 209-10. court appro then determined that concurrent state and federal was priate because to decide otherwise would create the untenable situation of [jurisdiction] many “walkpng] a stevedore in and out of state times each employees day.” Id., Georgia coverage 210. The court reasoned that state place land or sea would “no new burdens for identical suffered on employers.” reject reasoning on Id. I this because it is unrelated to the determining whether a case falls criteria used Court for Stevedoring “twilight Co. is not within the zone.” I also note Allsouth a federal case. Stevedores, 2d in which In Richard v. Lake Charles 95 So. permission granted to recover under state stevedore also employer’s compensation law, Court denied the the United States petition appeal Louisiana for a writ of certiorari to from the decision of the opinion See, e.g., appeals court, expressing on matter. Boume thus no Bush, (2007) 127 S. Ct. 167 L. Ed. 2d 578 diene Kennedy, (“denial (Stevens Js.) of certiorari does not constitute any merits”). expression opinion I further discuss Lane in the text opinion. of this they ship repair Both zone or are not. twilight had been held federal. Once that ship loading equally by holding repair line has been broken that a zone there is no twilight case, case can be treated as case.” unloading further ground distinguishing Id., 33, quotation omitted.) quoting marks (Internal Compensation Law Larson, (1971) A. Workmen’s quotation from Lar- 89.40, p. foregoing 444 n.55. The § included in the treatise, however, son’s 1971 was not writes in work’s most recent edition. Larson instead zone doctrine there that, twilight “even under the when zone, will outside the as falling twilight be cases and is clearly the claimant is a maritime worker L. waters.”9 9 A. Larson & indisputably navigable “inexplicable discrep- majority as an The characterizes this conclusion entirely ancy” by any analysis “unsupported ... is inconsistent that is majority analysis performed”; 17 of the with the that Larson had footnote treatise, “everything opinion; prior in which he states that sections of the or, exactly, Supreme [prior 1972], everything had said to more Court] [the do, placed limiting . . . it on the side of not that it had done or omitted to by Larson, supra, jurisdiction pr § A. &L. 145.05 e-Davis tests.” 9 Larson Larson, [3], p. majority, however, who makes misconstrues 145-127. fraught ambiguity repeated that the law was with references to the fact immediately prior example, making the 1972. For Larson writes before to formally Supreme quoted Court never had above statement that to whether state should be extended addressed the issue of subject jurisdiction, injuries previously federal such as those to exclusive completed unloading ships repairing arising loading and in the course of that, impressive although there was “an vessels. Id. Larson further writes cases, there in favor of concurrent such line of decisions” jurisdiction. authority” in favor of exclusive federal also was “substantial Supreme speculates, effect, nothing in Court’s then Id. Larson prior with the conclusion that exclusive decisions to 1972was inconsistent goes longer existed. Id. He on federal over maritime no Baskin, among others, support to his view to cite Moores’s Case and precluded applying prior a state from Court had not grounds the “local- law a waterfront related to its forty years. added.) Id., p. (Emphasis 145- concern doctrine’’ in more than problem agonizing over this as was done 129.Larson concedes “[s]uch by couple done, generations States not the United in the last chiefly and, system, Court, courts, within the federal but several state Louisiana, Jersey, produced New and Texas decisions the Fifth Circuit. (Emphasis added.) ways. facing . . . .” Id. both So did the Fifth Circuit 145-143, among [4], p. citing, supra, 145.07 Larson, § ambiguity acknowledge law Calbeck, in the discussing to Larson continues necessarily imply Supreme ruling “did not Court’s when he states that the symmetrical in which exclusive federal in cases result must follow” that a “strong case jurisdiction presumed. writes that a Id. Larson nevertheless is in proposition Calbeck cut both that the rationale of for the could be made” directions. Id. following development the of the law later discusses the The treatise question “[w]hat, response to the amendments. In enactment of the 1972 change anything, the law as related] 1972 amendments do to [it if did the declares, jurisdiction doctrines,” ‘twilight Larson zone’ and concurrent to the ultimately p. nothing.” Id., [1], concludes “legally, 145-138. Larson § 145.07 “twilight that, 1972, to fall outside the certain cases would continue even after entirety, [3], p. commen- in its Larson’s § zone.” 145.07 145-143. Viewed jurisdictions tary recognizes had reached different conclu- that different thus viability over of exclusive federal sions about the continued Supreme interpret He would incurred on waters. however, Case, Calbeck, precedent as Baskin and Court such as Moores’s supporting exists concurrent federal and state the notion that subject jurisdiction, although injuries formerly federal he to exclusive that, present law, to fall under some cases would continue still believed “twilight not an final conclusion is therefore outside the zone.” Larson’s prior analysis “inexplicable discrepancy” with his but that is inconsistent controversy express grows recognition sur- of the unresolved out of his rounding Congress the 1972 amendments. the issue since enacted majority regarding limits of also discredits Larson’s conclusion the cites, “twilight ground of the cases that Larson zone” on the that one Shop, 1251, namely, (Fla. Hernandez v. Mike Cruz Machine 389 So. 2d 1252 precluded application App. 1980), governed was state statute employee’s laws when an was covered that, majority although cites act. The further notes Larson also Co., supra, 1344, So. 2d in which there was no Wixom v. Travelers Ins. appeals and in which a Louisiana court determined that similar state statute ipjury subject his the worker could not receive state benefits because jurisdiction, questioned by has been the Louisiana exclusive federal Wixom Logan Co., v. Louisiana Dock 541 So. 2d Court. See overly (La.) (Wixom view of n.17 an anomalous and restrictive “reflects] dismissed, jurisdiction”), 110 S. Ct. concurrent cert. implicitly Moreover, according majority, (1989). L. Ed. to the Larson 2d 639 rejected agrees reasoning in Whether Larson with the reason has Wixom. however, express ing Wixom, bearing his conclusion that some in has no “twilight As that Wixom cases continue to fall outside the zone.” for the fact questioned, point expressed has of view in Wixom also was been See, Larson, expressed e.g., A. Larson & L. in other cases cited the treatise. supra, [3], p. (digest chapter 145), citing Flowers § 145.05D D145-34 n.12 Co., supra, Finally, 258 F.2d 220. the fact that Hernandez Travelers Ins. cases, Co., other Wixomv. Travelers Ins. 357So. subject ship repair (claim to exclusive 2d 1344 case jurisdiction). Accordingly, it cannot be con- federal developments light law, in the cluded, of recent Court extended Larson now believes that “twilight in Moores’s Case and Baskin to zone” ship repair in all eliminate exclusive federal ship loading cases. majority points paradox itself out the Moreover, gov concluding that the case was Lane after Jersey by Case, the New court distin erned Moores’s operative guished in facts from the facts Jensen on “very ground worker in Lane had that the required ship; (inter to work on board a seldom” been quotation omitted) v. Universal Steve nal marks Lane thereby supra, suggesting doring 33; 63 N.J. Co., may that Jensen and other cases the court have believed “twilight would not fall within the with similar facts zone.”

Finally, agree Fifth Circuit’s statement in I with the supra, 258 F.2d Co., Flowers v. Travelers Ins. faithfully interpret apply “duty and a federal court’s to principles long- . . . [the constitutional and Federal swayed by important act]” too for it “to be shore is fundamentally [it] think[s] decisions are State Court Judiciary . in a field in which . . the Federal erroneous say.” although I result, 227. As a . . . has the last possibility that the facts in a would not rule out the coverage governed precluding law state when Larson’s conclusion is under the act does not undermine afforded a law of this nature would cover as to exclusive federal because cases, govern others. Insofar as Lane continues among in New such analysis jurisdictions disagree Jersey, simply with the I note that other Co., supra, Lane; see, e.g., 227-28; Flowers v. Travelers Ins. F.2d and Jersey only once in New and one other the case has been cited Duong years v. Workers’ thirty-four during since it was decided. See Board, 983-84; Compensation Appeals App. Lister J.B. 169 Cal. 3d Co., Super. 64, 77, (App. 1989). Div. Eurell 234 N.J. 560 A.2d 89 sufficient case create particular stevedoring might I do not zone,” doubt to it within the bring “twilight with Lane and the majority present in the case agree can stevedoring that all future and cases repairing expected to raise issues of doubt under significant Dams.

Ill majority espoused by I also with the rule disagree adoption approach by such an because wholesale much jurisdictions potentially other could reverse that the United States Court and progress has made since Jensen. As described part I Congress dissent, permitted I of this Court originally Calbeck federal and state overlapping remedy inequities in the benefits available to workers injured on waters under the “maritime but uniformity local” doctrine. This had no effect on the harmony federal maritime law because directly navigation such cases were not related to unifor- encouraged commerce. 1972 amendments mity and, therefore, predictability in the law for both liability employers by employer and workers limiting in an in and exchange increase federal benefits concept their extension landward. The of concurrent Ship, Inc., Sun in that was endorsed did disrupt uniformity predictability not the and achieved by the 1972 amendments because federal benefits gen- erally jurisdic- exceeded state benefits. state Expanding tion seaward to cover all cases under the arising purpose act for the that workers ensuring compensation benefits, will receive state how- greater ever, pattern. is not consistent with this Instead of fos- harmony tering uniformity and achieved under law, federal such rule would introduce variation into respect scheme with to maritime injuries traditionally subject juris- to exclusive federal diction, injury on the depending which the uniformity occurred, compromise and thus would motivation behind primary that was a predictability and of the 1972 amendments.10 adoption Stewart, Ice Co. Knickerbocker (1920), Ct. 64 L. Ed. 834 163-64, 40 S. passed law sweeping

Court declared unconstitutional to extend remedies right states the Congress granting waters. injury navigable maritime incurred on any to delegation legislative that such a The court concluded of the purpose would defeat the power to the states uniformity harmony and preserving constitution explained: “The Con- law. 164. The court of federal established, part as of the adopted itself stitution approved rules of the States, general laws of the United to empowered Congress legislate law and maritime admiralty within the respect of them and other matters Moreover, it took from the jurisdiction. to judicial decision, power, legislation States all of, or to work mate- proposes the essential contravene law features of such or to injury to, rial characteristic concept majority’s perpetuating of exclusive federal claim require uniformity will in the law because it will not foster “ case-by-case basis, questions ‘handling coverage with all the on a [of] ” uncertainty entails,’ endless that this burdensomeness and administrative majority opinion. subject Cases Footnote is without foundation. clearly jurisdiction, by definition, federal fall within the exclusive federal employment sphere and the location of the nature of the worker’s because Retaining federal waters. exclusive of his employ who workers in different cases will ensure that owners such majority’s single compensation scheme. The under a states are held liable same”; id.; injuries rule, are treated the contains “under which all such treating “the same” does not because such inherent contradiction but to the fact that both state and federal refer to the substance of the law uniformity, diversity, apply, will lead rather than foster law which jurisdiction addition, system permits concurrent maritime law. likely injuries navigable waters is to increase the administra all incurred on insurance costs because workers owners as well as their tive burden law, present very likely federal and state as will file dual claims under “practical majority’s preoccupation concerns” does not with case. The majority opinion. potential problem. appear 9 of the this Footnote to consider proper harmony uniformity interfere with its and preserve its and interstate relations. To international adequate harmony appropriate and uniform rules relat- to maritime matters and them within control of ing bring purpose; the Federal Government was the fundamental empowered and to such definite end Congress every sphere.” Id., within that 160. State legislate “[I]f may freely rights declare the and liabilities incident will at arise the employment, to maritime there once uncertainty confusion and which framers of the Consti- prevent.” Id., tution both foresaw and undertook to Almost all of the issues motivated and Congress clarify past ninety Court to Jensen over the years Uncertainty respect have been addressed. with inequities to the source of in the relief coverage available to workers has been eliminated law presently because federal covers all maritime injuries, regardless they related of whether occur on Moreover, land or sea. federal law has achieved unifor- mity respect injuries with to maritime incurred on navi- gable waters, except in doubtful cases that fall within Lastly, zone.” “twilight exclusive federal preserved indisputably has been that occur on waters. state com- Permitting pensation laws to in all cases under the govern arising type act cannot but introduce the help uncertainty variability into the Congress scheme that Court and have to overcome such laws sought since Jensen because may provide many benefits in cases that differ from provided those under federal law.

Ironically, principal majority rationale that the advances to broaden concurrent is that it “uncertainty would eliminate and confusion about whether the choice of would be the correct one and the need for hairline courts to maintain distinc- implausible tions that on their face.” Text [seem] majority opinion. 22 of the footnote accompanying justifica- appropriate that this was agree I Although has no relevance zone,” it “twilight creating tion for injuries incurred on clearly to cases by definition, do cases, such waters because uncertainty as to the choice confusion not generate law is I believe that if the jurisdiction. Accordingly, jurisdic- and federal concurrent state permit changed such act, the longshore under arising tion in all cases by the United States implemented should change not overruled Jensen which has Supreme Court, not fall within exclu- cases do stevedoring decided jurisdiction. sive federal dissent. respectfully I

Accordingly, CONNECTICUT, LOGISTEC GERTE v. RAYMOND AL. INC., ET 17605) (SC Zarella, Norcott, Katz, Borden, Js. Palmer and

Case Details

Case Name: Coppola v. Logistec Connecticut, Inc.

Court Name: Supreme Court of Connecticut

Date Published: Jul 3, 2007

Citation: 925 A.2d 257

Docket Number: SC 17604

Court Abbreviation: Conn.