This concept has been applied in administrative proceedings for the reason that "[t]he
truth
is no less important to an administrative body acting in a quasi-judicial capacity than it is to a
court
of law."140
Therefore, if an employee files a Jones Act claim, and subsequently it is determined that he or
she
is not a seaman, the employee could then file a Longshore claim within one year of such denial.
139Id. at 1037
(quoting Religious Technology Center v. Scott, 869 F.2d 1306, 1311 (9th Cir. 1989))
(internal citations omitted).
140Mullner v. Mars,
Inc., 714 F. Supp. 351, 357 (N.D. Ill. 1989) (quoting Department of Transp. v. Coe,
112 Ill. App.3d 506, 510, 445 N.E.2d 506 (4th Dist. 1983)); see also Rissetto v. Plumbers &
Steamfitters Local 343, 94 F.3d 597, 604 (9th Cir. 1996) ("[w]e are not aware of any
case refusing to apply the doctrine because the prior proceeding was administrative rather than
judicial"); Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420, 1427 (7th Cir. 1993)
("Though called judicial estoppel, the doctrine has been applied, rightly in our
view, to proceedings in which a party to an administrative proceeding obtains a favorable order
that he seeks to repudiate in a subsequent judicial proceeding") (emphasis in original).
144Id. at 267-68
(citing Johnson v. Railway Express Agency, Inc., 421 U.S. 454 (1975)).
145Id. The
Wilson court concluded, "At some point, the right to be free of stale claims comes
to prevail over the right to prosecute them." Id.
146Ferris v. Vecco,
Inc., 896 F. Supp. 966 (D. Alaska 1995); see alsoFiling Longshore Claim Does
Not Toll Jones Act Limitation Period, 14 Longshore Newsletter 35 (1996).
151Id. at 91-92
(citations omitted); see also Foster v. Davison Sand & Gravel Co., 31 BRBS 191
(1997).
152See, e.g.,
Sharp v. Johnson Bros. Corp., 973 F.2d 423 (5th Cir. 1992), cert. denied, 508
U.S. 907 (1993); Anders v. Ormet Corp., 874 F. Supp. 738 (M.D. La. 1994); Welch
v. Elevating Boats, 516 F. Supp. 1245 (E.D. La. 1981). But see Papai v. Harbor Tug &
Barge Co., 67 F.3d 203 (9th Cir. 1995), rev'd on other grounds 117 S. Ct. 1535
(1997).
153See Sharp v. Johnson
Bros. Corp., 973 F.2d 423, 426 (5th Cir. 1992) ("We have treated [§ 8(i)
settlements] as a formal award'"); see also Newkirk v. Keyes Offshore, Inc., 782
F.2d 499, 501-02 (5th Cir. 1986).
154Figueroa v.
Campbell Indust., 45 F.3d 311 (9th Cir. 1994).
155 866 F. Supp. 26 (D.
Me.), vacated, No. Civ. 94-45-P-H, 1994 WL 588573 (D. Me. Sept. 27 1994).
173See Gilmore &
Black, The Law of Admiralty 435 (1975) ("on grounds of policy the argument can be
plausibly advanced that the injured worker should be entitled to try for his Jones Act recovery no
matter how properly his status as a non-seaman may have been adjudicated in a contested
compensation proceeding"). It has been noted, however, that this treatise was published in
1975, and relied primarily upon pre-1972 amendments and "[thus, Gilmore & Black's
lament that pursuit of a Jones Act recovery by an injured longshore worker seemed just in the
days when the maximum longshore weekly benefits was $70.00 per week." This, however,
is no longer the case. Administrative Determination of Longshore Status No Bar to
Subsequent Jones Act Recovery, 13 Longshore Newsletter 140 (1996).
174 9 Larson, The Law of
Workmen's Compensation § 90.51(c) (arguing that an administrative approval of benefits
should constitute res judicata where the eligibility issue is actually litigated)
(emphasis added).
194 See Powers,
supra note 190, at 532; see alsoPerez v. Keystone Shipping Co., 1997
WL 753412 (9th Cir. Nov. 28, 1997) (following Graham decision); Petition of
Read, 224 F. Supp. 241 (D.C. Fla. 1963) (holding that volunteer in a yacht race for personal
pleasure, who was promised no wage or salary, was a seaman under Jones Act).
195 Civ. No. JFM-94-2320,
1995 WL 688416 (D. Md. Aug. 15, 1995).
199Heath v. American
Sail Training Ass'n, 644 F. Supp. 1459 (D.R.I. 1986) (holding that unpaid, temporary
volunteers of sail training program could not bring Jones Act action against organizer);
Complaint of Falkiner, 716 F. Supp. 895 (E.D. Ca. 1988 (volunteer cannoneers during
mock pirate battle, were not Jones Act seaman).
200Boy Scouts of
America v. Graham, 86 F.3d 861, 866 (9th Cir. 1996) (J. Goodwin, dissenting).
201See, Dupre v. Otis
Eng'g Corp., 641 F.2d 229 (5th Cir. 1981); Bearden v. Leon C. Breaux Towing Co.,
365 So. 2d 1192 (La. App. 3d Cir. 1978), cert. denied, 366 So. 2d 915 (1979).
203Id. at 216-18;
see also Norther Coal & Dock Co. v. Strand, 278 U.S. 142, 147 (1928); Hill v.
Workmen's Compensation Appeal Bd., 703 A.2d 74, 78-80 (Pa. Commw. 1997).
204Indiana & Michigan
Electric Co. v. Workers' Compensation Comm'r, 403 S.E.2d 416, 419 (W. Va. 1991); see
also generally Door v. Maine Maritime Academy, 670 A.2d 930 (Me. 1996) (holding that an
engineer who was injured while working on a research vessel at sea did not fall within the
exclusive jurisdiction of the Jones Act, and consequently would be entitled to benefits under the
states' compensation law, where the engineer only spent 25% of his time on board the vessel and
therefore did not meet the definition of "seaman" under the Jones Act).
207Id. at 46-47;
see also Gillespie v. United States Steel Corp., 379 U.S. 148, 154-55 (1964) (reaffirming
Lindgren decision); Northern Coal & Dock Co. v. Strand, 278 U.S. 142, 145
(1928) (holding that state compensation law does not apply to seamen).
209See Anderson v.
Alaska Packers Ass'n, 635 P.2d 1182, 1184 (Alaska 1981); De Court v. Beckman
Instruments, Inc., 32 Cal. App. 3d 628, 633, 108 Cal. Rptr. 109, 112-13 (1973); Bearden
v. Leon C. Breaux Towing Co., 365 So.2d 1192 (La. App. 1978), writ denied, 366
So.2d 915 (1979); Garrisey v. Westshore Marina Assocs., 2 Wash.App. 718, 469 P.2d
590 (1970); Indiana & Michigan Electric Co. v. Workers' Compensation Comm'r, 403
S.E.2d 416, 419 (W. Va. 1991); see also Miles v. Apex Marine Corp., 498 U.S. 19,
27-30(1990) (discussing the interplay among the Jones Act, the Death on the High Seas Act, and
the
general maritime tort law).
212Id. at 419;
see also Meaige v. Hartley Marine Corp., 925 F.2d 700, 701-03 (4th Cir.) (holding that
West Virginia tort of retaliatory or wrongful discharge could not be utilized by a seaman against
his employer because of the "exclusive nature of federal admiralty law"), cert.
denied, 501 U.S. 1217 (1991); Thibodaux v. Atlantic Richfield Co., 580 F.2d 841,
847 (5th Cir. 1978) ("[A]n exclusive remedy provision in a state workmen's compensation
law cannot be applied when it will conflict with maritime policy and undermine substantive
rights afforded by federal maritime law."), cert. denied, 442 U.S. 909 (1979).
213Rohrbacker v.
Jackson & Jackson, Inc., Civ. A. No. 88-4138, 1991 WL 81726 (E.D. La. May 6, 1991);
Hill v. Workmen's Compensation Appeal Bd., 703 A.2d 74, 78-80 (Pa. Commw. 1997).
214See 33 U.S.C.
§ 903(a). "Congress was aware that modern long shoring techniques involved an
increased amount of work on land, and believed that the availability of compensation should not
turn upon the fortuitous circumstance of whether the injury occurred on land or over
water.'" Peter v. Hess Oil Virgin Islands Corp., 903 F.2d 935, 948 (3d Cir. 1990)
(quoting S. Rep. No. 92-1125 at 13; H.R. Rep. No. 92-1441 at 10-11, 1972 U.S.C.C.A.N. 4708),
cert. denied, 498 U.S. 1067 (1991)).
215 33 U.S.C.§ 902 (3) (1984). I pause to note that the exclusion only applies to injuries occurring
after September 28, 1984, the date of enactment of the 1984 Amendment.
216See infra notes
255-257 and accompanying text (discussing recent state legislative action).
217See David v.
Department of Labor & Indus. of Wash., 317 U.S. 249 (1942) (introducing "twilight
zone" concept of finding state jurisdiction for injuries upon navigable waters).
228Peters v. Hess Oil
Virgin Islands Corp., 903 F.2d 935, 944 (3d Cir. 1990) (quoting G. Gilmore & B. Black,
The Law of Admiralty 419-20 (2d ed. 1975)), cert. denied, 498 U.S. 1067 (1991).