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SOUTHWEST MARINE, INC. v. GIZONI Opinion of the Court

II The Jones Act and the LHWCA each provide a remedy to the injured maritime worker; however, each specifies different maritime workers to be within its reach. In relevant part, the Jones Act provides that “[a]ny seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply. . . .” 46 U. S. C. App. § 688(a). Under the LHWCA, the exclusiveness of liability provision in part states that the liability of an employer “shall be exclusive and in place of all other liability of such employer to the employee. . . .” 33 U. S. C. § 905(a). However, the term “employee,” as defined in the LHWCA,2 does not include “a by the Fifth Circuit undercut much of the reasoning in Pizzitolo by limiting it to cases where “the evidence is insufficient to warrant a finding of seaman’s status.” Legros v. Panther Services Group, Inc., 863 F. 2d 345, 349 (1988). The Fifth Circuit granted rehearing en banc, but the parties later settled and the appeal was dismissed. Legros v. Panther Services Group, Inc., 874 F. 2d 953 (1989). With the opinion in Legros vacated, Pizzitolo remains the law in the Fifth Circuit, although its breadth may be in some question. 2 In full, 33 U. S. C. § 902(3) provides: “The term ‘employee’ means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and ship-breaker, but such term does not include— “(A) individuals employed exclusively to perform office clerical, secretarial, security, or data processing work; “(B) individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet; “(C) individuals employed by a marina and who are not engaged in construction, replacement, or expansion of such marina (except for routine maintenance); “(D) individuals who (i) are employed by suppliers, transporters, or vendors, (ii) are temporarily doing business on the premises of an employer