Page:United States Reports 502 OCT. TERM 1991.pdf/245

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Cite as: 502 U. S. 81 (1991)

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Opinion of the Court

master or member of a crew of any vessel.” § 902(3)(G). The District Court was therefore plainly wrong in holding that, as a matter of law, the LHWCA provided the exclusive remedy for all harbor workers. That cannot be the case if the LHWCA and its exclusionary provision do not apply to a harbor worker who is also a “member of a crew of any vessel,” a phrase that is a “refinement” of the term “seaman” in the Jones Act. McDermott Int’l, Inc. v. Wilander, 498 U. S. 337, 349 (1991).3 The determination of who is a “member of a crew” is “better characterized as a mixed question of law and fact,” rather described in paragraph (4), and (iii) are not engaged in work normally performed by employees of that employer under this chapter; “(E) aquaculture workers; “(F) individuals employed to build, repair, or dismantle any recreational vessel under sixty-five feet in length; “(G) a master or member of a crew of any vessel; or “(H) any person engaged by a master to load or unload or repair any small vessel under eighteen tons net; “if individuals described in clauses (A) through (F) are subject to coverage under a State workers’ compensation law.” 3 Southwest Marine points as well to a separate exclusiveness of liability provision regarding the negligence of a vessel, 33 U. S. C. § 905(b), and places great emphasis on a passage that states: “If such person was employed to provide shipbuilding, repairing, or breaking services and such person’s employer was the owner, owner pro hac vice, agent, operator, or charterer of the vessel, no such action shall be permitted, in whole or in part or directly or indirectly, against the injured person’s employer (in any capacity, including as the vessel’s owner, owner pro hac vice, agent, operator, or charterer) or against the employees of the employer.” This exclusivity provision applies, however, only “[i]n the event of injury to a person covered under this chapter [the LHWCA] caused by the negligence of a vessel.” § 905(b). As we have already noted, the question whether Gizoni is “a person covered under this chapter” depends upon whether he is a “seaman” under the Jones Act. Like the companion exclusivity provision of § 905(a), § 905(b) does not dictate sole recourse to the LHWCA unless Gizoni is found not to be “a master or member of a crew of any vessel.”