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Cavin v. State; Fish and Wildlife Protection Div. (4/7/00) sp-5255

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878.


             THE SUPREME COURT OF THE STATE OF ALASKA

JAMES D. CAVIN,               )
                              )    Supreme Court No. S-8630
               Appellant,     )
                              )    Superior Court No.
          v.                  )    3AN-92-11391 CI
                              )
STATE OF ALASKA, FISH AND     )    O P I N I O N
WILDLIFE PROTECTION DIVISION  )
OF THE DEPARTMENT OF PUBLIC   )    [No. 5255 - April 7, 2000]
SAFETY,                       )
               Appellee.      )
______________________________)


          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                        John Reese, Judge.


          Appearances:  Eric Dickman, Dickman Law Group,
Seattle, Washington, for Appellant.  Christopher M. Kennedy,
Assistant Attorney General, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee. 


          Before:  Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices. 


          BRYNER, Justice.


I.   INTRODUCTION
          After a non-jury trial, the superior court rejected James
Cavin's maritime tort claims against his former employer, the State
of Alaska, finding that he had failed to prove his status as a
Jones Act "seaman" and that federal statutes preclude his general
maritime claims.  Because the superior court evidently did not
consider all of the evidence and applicable law bearing on the
issue of whether Cavin was a Jones Act seaman and because we
conclude that Cavin has a potentially viable maritime seaworthiness
claim, we reverse and remand for further proceedings. 
II.  FACTS AND PROCEEDINGS
     A.   Facts
          James Cavin worked as a state trooper for the Alaska
Department of Public Safety, Fish and Wildlife Protection Division,
and was stationed in Cordova beginning in 1983.  Cavin served
patrol functions both on land and on the sea, the latter aboard
vessels called the ENFORCER, the COURAGE, and smaller vessels
assigned to work with them.  According to the parties' stipulation,
"[t]he sea-based work included patrolling on the State's vessels,
where Officer Cavin was to enforce Fish and Game laws and conduct
rescue missions."  Cavin alleges that the COURAGE and the smaller
vessels on which he worked "had a propensity to pound on the waves
and were therefore unseaworthy." 
          Cavin asserts that this pounding caused progressive
injuries to his back.  In early June 1988, following a period of
working on commercial fish patrol, Cavin experienced an episode of
low back pain, which his medical providers diagnosed as acute
lumbar strain attributable to the pounding on the waves of the Fish
and Game vessels on which he worked.  Cavin missed several weeks of
work, and upon his return to duty, his supervisor limited his duty
to avoid aggravation of the injury.  This resulted in a decrease in
his sea-based duties. 
          In March and April of 1989, during the EXXON VALDEZ oil
spill response, Cavin worked aboard the BURTON for a nine-day
period.  While leaning over the side of a boat to pull oil booms
together, he suffered an injury to his cervical or thoracic spine. 
Soon after this injury, he was transferred to Soldotna.  Subsequent
events are not at issue: for present purposes the parties stipulate
that "Cavin suffered injuries to his cervical/thoracic spine and
lumbar spine during the period he was employed by the State, and
that these injuries were caused at least in part by his work on
State vessels."  
     B.   Procedural History
          Cavin initially filed claims for his injuries under the
Alaska Workers' Compensation Act and received compensation under
the act.  In 1990 this court decided State, Department of Public
Safety v. Brown, which held that where a state employee is injured
onboard a vessel the exclusive remedy provision of the Workers'
Compensation Act does not bar the injured employee from pursuing
federal maritime remedies. [Fn. 1]  Cavin learned of this case and
filed his complaint against the state on November 4, 1991, alleging
claims of Jones Act negligence, [Fn. 2] general maritime
negligence, unseaworthiness, and maintenance and cure. 
          His case proceeded to a non-jury trial.  By agreement of
the parties, the trial court bifurcated the trial into sequential
phases.  Phase I, which is now before this court, concerned two
threshold issues: seaman status and statute of limitations.  The
parties left questions of negligence and causation for phase II,
stipulating that the court could assume causation for purposes of
deciding the phase I issues.  Cavin and the state further agreed to
try phase I without live testimony, instead using deposition
transcripts, documentary exhibits, and a partial fact stipulation. 
          Prior to the phase I trial, the state moved for partial
summary judgment based on the statute of limitations, arguing that
Cavin could not recover for any injury suffered more than three
years before November 4, 1991, the date he filed his complaint. 
The superior court deferred the question to trial.
          After considering evidence presented in phase I of the
trial, the superior court ruled that Cavin was not a "seaman"
entitled to relief under the Jones Act; the court further ruled
that federal law allowed Cavin no common law maritime claims.  The
court therefore denied Cavin's complaint without reaching phase II. 
          In explaining its ruling, the court focused on monthly
summaries compiled by the state documenting the percentage of work
time that Cavin spent on boats during 1987-89 -- his last three
years in Cordova.  These monthly summaries showed that, on average,
Cavin spent 19.63% of his work time performing "solely boat duty";
they reflected an additional 25.80% of work time spent on "mixed
boat and land" duty.  Cavin argued that both categories of time
should be credited to him as sea duty for purposes of determining
his Jones Act seaman status.  But the trial court rejected this
argument, finding that
          this would require speculation by the court. 
There is no basis in the facts presented to assess all, or any, of
the mixed time to vessel work without guessing.  All that is
possible is to say that something more than 19% of the time during
those years Cavin worked on the boats.

          The trial court then turned to the United States Supreme
Court's ruling in Chandris, Inc. v. Latsis, which articulated a
two-part test under which an employee is deemed a Jones Act seaman
when (1) the employee's duties "'contribute to the function of [a]
vessel or to the accomplishment of its mission,'" and (2) the
employee has "a connection to a vessel (or to an identifiable group
of such vessels) that is substantial in terms of both its duration
and its nature." [Fn. 3] 
          Applying Chandris, the trial court found that "Cavin met
all but the temporal requirement of the Chandris standard."  The
court observed that Cavin's "work on the boats was part of his job,
but overall was only a small part of the broad range of largely
land based duties of a Trooper assigned to Fish and Wildlife
responsibilities."  Referring to Chandris's approval of a temporal
guideline developed by the Fifth Circuit Court of Appeals, which
generally finds seaman status for workers who spend a minimum of
thirty percent of their work time aboard a vessel, the trial court
noted that "30% is a far cry from the 19% established by Mr.
Cavin's evidence."  The court went on to conclude: 
          Although [Cavin's] failure to meet the general
guideline of 30% endorsed by Chandris is not in itself
determinative, an overall view of his year round job does not leave
this court with the impression that he was a marine worker, let
alone a worker who was sea-based and owed his allegiance to the
fleet of Fish and Wildlife vessels. 

          The trial court also decided that Cavin had no general
federal maritime remedy for unseaworthy conditions under the
"Sieracki doctrine." [Fn. 4]  Citing a 1981 Ninth Circuit decision,
[Fn. 5] the court ruled that Congress had extinguished the Sieracki
doctrine by enacting the 1972 amendments to the Longshore and
Harbor Workers' Compensation Act. [Fn. 6]  
          Having decided that Cavin had no claim under the Jones
Act because he was not a seaman and that he had no common law
maritime claim, the trial court found no need to rule on the
statute of limitations, stating that "the issue of the applicable
statute of limitation period is moot."  The court subsequently
awarded prevailing-party attorney's fees and costs to the state and
entered judgment against Cavin.
          Cavin appeals.
III. DISCUSSION
     A.   Standard of Review
          The application of maritime remedies involves mixed
questions of law and fact.  We review the superior court's factual
findings under the clearly erroneous standard but review questions
of law de novo. [Fn. 7]
     B.   Jones Act
          The Jones Act states: "Any 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 . . . ." [Fn. 8]  Congress passed the Jones Act out
of its dissatisfaction with the bar to negligence suits that the
Supreme Court had established in a 1903 decision. [Fn. 9]  But in
establishing a maritime remedy, the Jones Act created an enduring
problem: it failed to define who was a "seaman" entitled to
recovery under the act.  The strongest guidance initially came from
the Longshore and Harbor Workers' Compensation Act of 1927, [Fn.
10] which excludes from its coverage "a master or member of a crew
of any vessel." [Fn. 11]  Decisions after enactment of the LHWCA
took its language of exclusion as the Jones Act's language of
inclusion: a seaman was deemed to be "a master or member of a crew
of any vessel."
          But competing notions of seaman status persisted, most
significantly around the question of whether it was the status of
the worker or the situs of the accident that made a Jones Act
seaman.  In two recent decisions, the Supreme Court expanded the
notion of "seaman," determining that status, not situs, governs;
but both decisions also restricted the notion by focusing on the
nature of a seaman's activities.  
          In McDermott International, Inc. v. Wilander, the Court
established that Jones Act coverage does not require that a worker
be part of the navigational crew of a vessel, but only that the
worker "contribute to the function of the vessel." [Fn. 12]  This
led to speculation that any worker injured on a vessel could
qualify as a Jones Act seaman, even if the worker's regular work
was land-based.  The Supreme Court addressed this issue in
Chandris, Inc. v. Latsis, [Fn. 13] establishing a standard to
evaluate whether a worker's sea-based work is substantial enough to
qualify for Jones Act seaman status.
          In Chandris, Antonios Latsis was a salaried
superintendent engineer who worked on the communications equipment
of Chandris vessels. [Fn. 14]  Latsis was not assigned permanently
to a vessel; he was based in Chandris's Miami offices but in the
course of his work took a number of voyages on Chandris vessels.
[Fn. 15]  While on a voyage aboard a Chandris vessel, Latsis
developed a problem with his eye and ultimately sustained lasting
damage. [Fn. 16]  He sued Chandris under the Jones Act for
negligence by the ship's doctor in failing to refer him for
immediate treatment of a detached retina, which he alleged would
have prevented the damage. [Fn. 17]  A jury ruled against Latsis on
seaman status, and the trial court entered judgment against him;
but the federal Court of Appeals for the Second Circuit reversed,
finding that the jury instruction on seaman status was plain error
under circuit precedent. [Fn. 18]  
          The Supreme Court granted certiorari to resolve a
longstanding split among the circuits about the proper test to
apply. [Fn. 19]  Analyzing its early case law, the Court recognized
several fundamental distinctions.  The first was one between land-
based and sea-based maritime workers; the second, that admiralty
jurisdiction depends not on the situs of the injury, but on the
nature of service of the person injured -- "[s]eaman status is not
coextensive with seamen's risks." [Fn. 20]  In disavowing the
"voyage test" favored by Justice Stevens's dissent, the Court
seemed especially concerned that such a test would "permit a worker
to walk into and out of coverage in the course of his regular
duties." [Fn. 21]  
          With this concern in mind, the Court fashioned a two-part
test for seaman status.  The first part is a threshold requirement
that the worker "do the ship's work." [Fn. 22]  "But this threshold
requirement is very broad: '[a]ll who work at sea in the service of
a ship' are eligible for seaman status." [Fn. 23]  The parties here
do not dispute that Cavin meets this standard.  
          The second part, and the focus of concern here, is the
requirement that "a seaman must have a connection to a vessel in
navigation (or to an identifiable group of such vessels) that is
substantial in terms of both its duration and its nature." [Fn. 24] 
These dual elements of the second requirement -- duration and
nature -- have independent importance in distinguishing "sea-based
maritime employees" from "land-based workers who have only a
transitory or sporadic connection to a vessel in navigation, and
therefore whose employment does not regularly expose them to the
perils of the sea." [Fn. 25] 
          As a general guide to this inquiry, the Chandris Court
stated, "we think it preferable to focus upon the essence of what
it means to be a seaman and to eschew the temptation to create
detailed tests to effectuate the congressional purpose, tests that
tend to become ends in and of themselves." [Fn. 26]  Nevertheless,
the Court approved as "an appropriate rule of thumb for the
ordinary case" the "30 percent" test developed in the Fifth Circuit
and followed by many courts.  But it warned that this benchmark
should "serve[] as no more than a guideline . . . and departure
from it will certainly be justified in appropriate cases." [Fn. 27]
          In the present case, Cavin insists that he meets the
thirty percent benchmark.  He asserts that the trial court erred in
failing to credit him with any of the time that the state recorded
as "mixed" and in failing to make the state bear the burden of
explaining the mixed time, since, according to Cavin, the state
failed to preserve more complete records providing the explanation. 
Cavin also contends that the benchmark in any event should not be
interpreted strictly, because it is "merely a guideline and not a
bright line test."  Emphasizing the maritime nature of his work as
a Fish and Wildlife officer, he argues that he was regularly
subject to the "perils of the sea," and so merits the Jones Act
remedy.
          The state responds that Cavin was a land-based worker
whose duties included only "intermittent on-the-water work."  To
recognize such a worker as a "seaman" under the Jones Act, the
state argues, would extend this maritime remedy to land-based
workers merely because their jobs occasionally called them to the
sea. 
          In our view, however, it would be premature to attempt a
resolution of Cavin's seaman status under the Jones Act. 
Specifically, we find two aspects of Cavin's Jones Act claim that
require a remand for additional trial court consideration.  
          First, although the trial court faulted Cavin for
presenting insufficient evidence to satisfy the durational aspect
of the second part of Chandris's seaman test, the court evidently
limited its consideration to the last three years of Cavin's
service in Cordova, 1987-89.  These were the only years covered by
the state's monthly time allocation records.  But the state's
records were not complete:  Cavin had been assigned to Cordova
since May 1983. [Fn. 28]  In concentrating on his last three years
in Cordova, the trial court apparently overlooked, or at least
neglected to address, a substantial body of evidence that Cavin
presented concerning his first four years of Cordova service.  
          We note in particular that in depositions designated as
part of the phase I evidence, Cavin testified that he spent
considerably more time performing sea-based duties during his
initial years in Cordova.  For example, he stated that the
principal duty of the Cordova post in 1983-84 was "detachment," or
"commercial fisheries enforcement and assistance of rescue to the
fisherman."  All troopers were assigned to this boat duty;
"[d]uring the summertime, and throughout the wintertime, too, most
of our duties are marine enforcement."  Cavin claimed that when he
was assigned to the ENFORCER during his first two years in Cordova,
"we would go out and stay out.  We would come in maybe one night a
week or one night every three weeks if we were busy."  Cavin
testified that while the ENFORCER was stationed in Cordova he was
"scheduled for 150 to 180 days and nights a year at sea . . . . 
And we would, several times, be gone for more than a month." 
Moreover, Cavin's deposition testimony, if accepted, might also
support the inference that his first four years in Cordova were the
years when he experienced most of the wear and tear -- or
"pounding" -- to his low back that eventually necessitated his
reassignment to light duty.  In addition to the deposition
testimony, Cavin submitted a substantial amount of documentary
evidence covering these years of service.
          But the trial court's decision makes no mention of
Cavin's deposition testimony or his supporting documentary
evidence.  Though Cavin based his Jones Act claim on the theory
that he had sustained progressive damage throughout his years of
service in Cordova, the decision inexplicably restricts its
discussion to evidence dealing with the last three years of Cavin's
seven-year stay at that post.  The state's statute of limitations
defense, which covered Cavin's early years in Cordova, cannot
explain the court's failure to address the evidence dealing with
these years, since the court expressly declined to rule on the
limitations defense, finding it moot.  Moreover, by basing the
denial of Cavin's claim on a finding that he had presented
insufficient evidence, rather than on a rejection of the evidence
that he actually did present, the trial court's decision strongly
suggests that the omission goes beyond mere lack of discussion and
that the court actually failed to consider the evidence of Cavin's
first years of service.  
          Given these circumstances, we believe that it is
necessary to remand this case for reconsideration and additional
findings addressing Cavin's early years of service.  We express no
view concerning the ultimate weight and credibility of this
evidence, leaving those issues to be determined by the trial court
in light of other evidence in the record that may be relevant.  But
the totality of the evidence, viewed in the light most favorable to
Cavin, at least makes a prima facie showing of seaman status.  We
therefore conclude that the trial court must evaluate Cavin's claim
of seaman's status based on his entire period of service in
Cordova. [Fn. 29] 
          A second aspect of Cavin's Jones Act claim also requires
the trial court's consideration on remand.  In Scott v. Briggs Way
Co., we recognized that a worker whose job changes seasonally from
land-based to sea-based duties might qualify as a Jones Act seaman
only during the seasonal periods of sea-based assignment. [Fn. 30] 
We thus ruled that an "expectant seaman" injured while performing
land-based maintenance before the fishing season began was not
covered by the Jones Act. [Fn. 31]  Our ruling drew upon Chandris,
which states that "[w]hen a maritime worker's basic assignment
changes, his seaman status may change as well." [Fn. 32]
          Much documentary evidence in the present case arguably
indicates that under the rationale of Scott and Chandris, Cavin's
"basic assignment" may have changed seasonally, and he thus might
qualify as a "seasonal seaman."  Cavin's deposition testimony
concerning changes that occurred in his job assignments during open
fishing seasons might be read to support the same conclusion.  If
Cavin qualifed as a seasonal seaman, he might be entitled to Jones
Act relief for injuries occurring during his periods of sea-based
service.  To be sure, Cavin's principal argument is that he was a
year-round seaman.  But we think that the seasonal aspect of sea-
based work is an intrinsic factor in the analysis mandated by
Chandris -- a factor that must be taken into account for those
whose regular work schedules are seasonally dictated.  Even
accepting at face value Cavin's claim to year-round seaman status,
seasonal variations in his work would remain a relevant factor
under the Chandris analysis, particularly in determining how
stringently to apply the Fifth Circuit's thirty percent durational
guideline and what seasons should be included in calculating a
worker's overall percentage of sea-based work time.    
          Our review of the record in this case persuades us that
on remand the trial court should reexamine the evidence for
seasonal variations, in light of Scott. 
     C.   Unseaworthiness and Maintenance and Cure Claims
          Cavin argues that even if the court rules against him on
Jones Act seaman status, he is still entitled to a common law
remedy for unseaworthiness given his status as a "Sieracki" [Fn.
33] seaman -- a status that Cavin prefers to call "vicarious
seaman" status. Cavin argues that the superior court erred in
ruling that this remedy has been extinguished by the 1972
amendments to the Longshore and Harbor Workers' Compensation Act
(LHWCA). [Fn. 34]  The state, citing Normile v. Maritime Co. of the
Philippines [Fn. 35] -- the case relied on by the trial court --
responds that "[t]here is no such thing as a Sieracki seaman,"
maintaining that "[t]he 1972 amendments ended the judicially-
created Sieracki remedy." 
          But while it may be true that the 1972 amendments
extinguished Sieracki seaman status for longshore and harbor
workers, the same does not appear to hold true "for those workers
who 'fall into the crack between seamen and longshore workers.'"
[Fn. 36] 
          The test of seaman status for purposes of the
unseaworthiness remedy is not rigorous: the Supreme Court expanded
this category in Seas Shipping Co. v. Sieracki, based on the "type
of work the plaintiff did [when injured] and its relationship to
the ship." [Fn. 37]  Under Sieracki, the warranty of seaworthiness
extends to any worker injured while "doing a seaman's work and
incurring a seaman's hazards." [Fn. 38]  The controversy here
centers not on whether Cavin fits into the category of a "Sieracki
seaman" but on whether the category continues to exist.
          The unseaworthiness remedy is the product of a
complicated history, one of overlapping categories of workers,
work, and recovery regimes.  Congress passed the LHWCA in 1927 to
replace tort damages with a no-fault workers' compensation remedy,
primarily because longshore workers were excluded from state
compensation remedies due to the (federal) maritime character of
their work, and because the Supreme Court had struck down
congressional attempts to place longshore workers under these state
regimes. [Fn. 39]
          But in Sieracki, the Supreme Court held that while the
LHWCA protected the longshore employer against tort actions for
injuries occurring aboard vessels, it did not protect the vessel
owner from unseaworthiness claims, a remedy that entails absolute
liability, much like product liability. [Fn. 40]  Sieracki's new
remedy resulted in the vessel owner suing the stevedore -- the
employer of the workers who were loading the vessels -- for
indemnity, which countered the purpose of the LHWCA. [Fn. 41]  To
alleviate this problem, Congress amended the LHWCA in 1972 to
expand relief for those covered by the Act. [Fn. 42]  At the same
time, Congress abolished the unseaworthiness cause of action and
the potential for stevedore indemnity that went with it. [Fn. 43] 
 
          The 1972 amendments still allow the injured longshore
worker to proceed against third parties, but only for negligence --
not unseaworthiness. [Fn. 44]  "The primary purpose of the 1972
amendment was to place the injured longshore worker 'in the same
position he would be if he were injured in non-maritime employment
ashore . . . and not to endow him with any special maritime theory
of liability or cause of action . . . ." [Fn. 45]  This purpose
suggests that in cases where fault would remain uncompensated under
the LHWCA -- that is, in cases of non-covered land-based workers
who sustain injuries while working aboard a vessel -- other
remedies would be  available.  If Congress allowed workers covered
under the LHWCA to recover against vessel owners for negligence in
addition to recovering benefits under the act, why should it strand
workers not covered by the act with no coverage at all, or leave
them to the hazards of existing state remedies?
          Courts entertaining unseaworthiness actions since 1972
have split on this question.  In Normile, an injured federal
longshore worker sued the vessel owner for unseaworthiness. [Fn.
46]  The Ninth Circuit affirmed the dismissal of the plaintiff's
action, holding that "no longshoreman, whether publicly or
privately employed, can bring an unseaworthiness action." [Fn. 47] 
Normile cited the intent of the 1972 framers to abolish "other
categories of unseaworthiness which have been judicially
established." [Fn. 48]  But it did not altogether foreclose the
continued existence of unseaworthiness remedies for workers in
these "other categories" -- workers not covered by the LHWCA. [Fn.
49]  And because the case dealt only with the rights of public
longshore workers, who are excluded under the LHWCA [Fn. 50] but
have an independent federal remedy under the Federal Employees'
Compensation Act (FECA), [Fn. 51] it had no occasion to consider
the rights of workers who would have no federal remedy other than
unseaworthiness. 
          Cavin correctly notes that Normile has not been widely
followed, even within the Ninth Circuit. [Fn. 52]  The Fifth
Circuit's case law is more supportive of the continued viability of
unseaworthiness claims and, in our view, is better reasoned.  In
Aparicio v. Swan Lake, [Fn. 53] federal harbor workers sued vessel
owners for injuries they suffered while working aboard their
vessels, alleging that the vessels were unseaworthy. [Fn. 54]  The
court held that "if a harbor worker is not covered by the LHWCA,
the Sieracki cause of action . . . [is] still seaworthy." [Fn. 55] 
It so held even in the face of the exclusive liability provisions
of FECA, which applied to the plaintiffs. [Fn. 56]  By its
reasoning, then, Aparicio is even more supportive of extending the
unseaworthiness remedy to plaintiffs who lack any other maritime
remedy.
          As Aparicio points out, the 1972 amendments state that
they only apply "[i]n the event of injury to a person covered under
this Act." [Fn. 57]  Aparicio further points out: 
          The statute manifests no intention to expand
the abolition of the Sieracki-Ryan construct beyond the coverage of
the LHWCA.  We refuse to read into it the abolition of judicially-
built remedies as they apply to maritime workers not covered by the
LHWCA, including not only FECA-covered employees but those
amphibious workers who may be covered only by a state compensation
law or who may have no compensation law coverage at all.  Had
Congress intended to affect the substantive rights of persons not
covered by the LHWCA, it could readily have manifested that
intention.[ [Fn. 58]]

          We find Aparicio persuasive in its basic point that the
quid pro quo nature of the 1972 amendments, which provide a
compensation regime under the LHWCA in exchange for a bar to
unseaworthiness claims, counsels against their extension to those
who receive no remedy under the act. [Fn. 59]  We adopt its holding
here and conclude that, if the trial court finds no Jones Act
liability on remand, Cavin's unseaworthiness claim should
nonetheless proceed to trial of phase II issues to the extent that
the court does not find it barred by the statute of limitations.
[Fn. 60] 
IV.  CONCLUSION
          For these reasons, we REVERSE the judgment and REMAND
this case for further proceedings. [Fn. 61] 


                            FOOTNOTES


Footnote 1:

     794 P.2d 108, 110-11 (Alaska 1990).


Footnote 2:

 [Fn. 62]46 U.S.C. app. sec. 688(a) (1994).


Footnote 3:

     515 U.S. 347, 368 (1995) (quoting McDermott Int'l Inc. v.
Wilander, 498 U.S. 337, 355 (1991)).


Footnote 4:

     See Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946).


Footnote 5:

     The superior court relied on Normile v. Maritime Co. of the
Philippines, 643 F.2d 1380 (9th Cir. 1981). 


Footnote 6:

     33 U.S.C. sec.sec. 901-950, 905 (1994 & Supp. III 1997).


Footnote 7:

     See Moody-Herrera v. State, Dep't of Natural Resources, 967
P.2d 79, 82 (Alaska 1998); Alaska R. Civ. P. 52(a).  The clearly
erroneous standard of Rule 52(a) applies to documentary evidence as
well.  See Alaska Foods, Inc. v. American Mfrs. Mut. Ins. Co., 482
P.2d 842, 845-46 (Alaska 1971).  The federal standard appears the
same: "We review the factbound findings of the district court
sitting without a jury in admiralty jurisdiction under the 'clearly
erroneous' standard of Fed. R. Civ. P. 52(a)."  Clauson v. Smith,
823 F.2d 660, 661 (1st Cir. 1987) (citing McAllister v. United
States, 348 U.S. 19, 20 (1954)).  See also Charles Alan Wright &
Arthur R. Miller, Federal Practice & Procedure sec. 2587, at 584-85
(2d ed. 1995).


Footnote 8:

     46 U.S.C. app. sec. 688(a) (1994).   F. Nash Bilisoly, The
Relationship of Status and Damages in Maritime Personal Injury
Cases, 72 Tul. L. Rev. 493, 496 (1997) ("Seamen on government
vessels qualify for Jones Act remedies only through incorporation
by the Suits in Admiralty Act and Public Vessels Act."); see also
46 U.S.C. sec.sec. 742, 781 (1994 & Supp. III 1997).


Footnote 9:

     See Chandris, Inc. v. Latsis, 515 U.S. 347, 354 (1995)
(referring to The Osceola, 189 U.S. 158, 175 (1903)).


Footnote 10:

     See 33 U.S.C. sec.sec. 901-950 (1994 & Supp. III 1997).  The
LHWCA
itself was passed to compensate workers who were denied
compensation by the Supreme Court in Southern Pacific Co. v.
Jensen, 244 U.S. 205, 216-18 (1917), because they work neither on
state land nor the federal seas, but over "the water's edge."  See
H.R. Rep. No. 1441, reprinted in 1972 U.S.C.C.A.N. 4698, 4707.


Footnote 11:

     See Chandris, 515 U.S. at 355 (citing 33 U.S.C. sec. 902(3)(G)
(1994)).


Footnote 12:

     498 U.S. 337, 355 (1991).


Footnote 13:

     515 U.S. at 349-50.


Footnote 14:

     See id. at 350.


Footnote 15:

     See id.


Footnote 16:

     See id. at 350-51.


Footnote 17:

     See id. at 351.


Footnote 18:

     See id. at 352.


Footnote 19:

     See id. at 353.


Footnote 20:

     Id. at 360-61.  


Footnote 21:

     Id. at 363.


Footnote 22:

     Id. at 368.


Footnote 23:

     Id. (quoting McDermott Int'l, Inc. v. Wilander, 498 U.S. 337,
354 (1991)).   The inquiry into seaman status is "of necessity fact
specific; it will depend on the nature of the vessel and the
employee's precise relation to it."  McDermott, 498 U.S. at 356.


Footnote 24:

     Chandris, 515 U.S. at 368.


Footnote 25:

     Id.  As the Court more recently stated, "[f]or the substantial
connection requirement to serve its purpose, the inquiry into the
nature of the employee's connection to the vessel must concentrate
on whether the employee's duties take him to sea."  Harbor Tug and
Barge Co. v. Papai, 520 U.S. 548, 555 (1997).


Footnote 26:

     Chandris, 515 U.S. at 369.


Footnote 27:

     Id. at 371.


Footnote 28:

     Cavin states in his complaint that he was employed as a seaman
by the state since 1984, but the stipulation dates Cavin's service
to August 1, 1983.  Cavin states that he started this assignment in
May 1983, and the record supports this.


Footnote 29:

     The state urges us to address its statute of limitations
defense as an alternative ground for upholding the trial court's
decision.  But because the issue potentially involves material fact
disputes that the trial court has not yet resolved, we decline to
decide it at this juncture.  The trial court may in its discretion
consider this defense as an alternative basis for its decision on
remand.


Footnote 30:

     909 P.2d 345, 348 (Alaska 1996).


Footnote 31:

     See id.


Footnote 32:

     See id. at 347 (quoting Chandris, 515 U.S. at 372).


Footnote 33:

     See Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946).


Footnote 34:

     33 U.S.C. sec.sec. 901-950, 905 (1994 & Supp. III 1997).


Footnote 35:

     643 F.2d 1380, 1382 (9th Cir. 1981).


Footnote 36:

     Blancq v. Hapag-Lloyd A.G., 986 F. Supp. 376, 382 (E.D. La.
1997) (quoting 1 Thomas J. Schoenbaum, Admiralty and Maritime Law 
sec. 6-27, at 347 (2d ed. 1994)).


Footnote 37:

     Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 413 (1953).


Footnote 38:

     Sieracki, 328 U.S. at 99.


Footnote 39:

     See Schoenbaum, sec. 7-1, at 372-73 (discussing Washington v.
W.C. Dawson & Co., 264 U.S. 219 (1924); Knickerbocker Ice Co. v.
Stewart, 253 U.S. 149 (1920); and Southern Pac. Co. v. Jensen, 244
U.S. 205 (1917)).


Footnote 40:

     See Martin J. Norris, The Law of Maritime Personal Injuriessec.
10:2 (4th ed. 1990).


Footnote 41:

     See Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S.
124, 128-32 (1956); Schoenbaum, sec. 7-10, at 434.


Footnote 42:

     The LHWCA requires a claimant to satisfy both a situs and an
occupational status test, the essence of which is to determine that
the claimant is a longshore worker injured on "the navigable waters
of the United States."  33 U.S.C. sec. 903(a) (1994).


Footnote 43:

     See 33 U.S.C. sec. 905(b) (1994) ("In the event of injury to
a
person covered under this chapter caused by the negligence of a
vessel, then such person, or anyone otherwise entitled to recover
damages by reason thereof, may bring an action against such vessel
as a third party . . . .").


Footnote 44:

     See id.


Footnote 45:

     Schoenbaum, sec. 7-10, at 435 n.8 (quoting H.R. Rep. No. 1441,
reprinted in 1972 U.S.C.C.A.N. 4698, 4703).


Footnote 46:

     See 643 F.2d at 1381.


Footnote 47:

     Id.


Footnote 48:

     Id. at 1368 (quoting H.R. Rep. No. 1441, reprinted  in 1972
U.S.C.C.A.N. 4698, 4703-04).  While Normile finds justification for
its ruling in this House Committee report, Supreme Court discussion
of the 1972 amendments is sparse.  A footnote of dictum in a 1996
case states, "Congress effectively overruled [Sieracki] in its 1972
amendments. . . .  We have thus far declined to extend the duty
further."  Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 208 n.6
(1996).  This cryptic observation seems ambivalent.  Perhaps
because the patchwork of maritime remedies does not produce a
coherent whole, it is difficult to argue from one case to another.


Footnote 49:

     See Normile, 643 F.2d at 1382-83 ("Given that the 1972
Amendments have eviscerated if not eliminated Sieracki . . . .").


Footnote 50:

     See id. at 1382 (citing 33 U.S.C. sec. 903(a)(2) (1994)).


Footnote 51:

     See 5 U.S.C. sec. 8101-8193 (1994 & Supp. IV 1998).  See alsoIn
re Boy Scouts of America, 875 F. Supp. 1391, 1397 & n.3 (N.D. Cal.
1994), rev'd on other grounds, 86 F.3d 861 (9th Cir. 1996).


Footnote 52:

     See, e.g., In re Boy Scouts of America, 875 F. Supp. at 1397
& n.3 (stating that the conclusion that Normile found the 1972
amendments to have abolished Sieracki "may overstate the Ninth
Circuit's holding").


Footnote 53:

     643 F.2d 1109 (5th Cir. 1981).


Footnote 54:

     See id. at 1110.


Footnote 55:

     Id.


Footnote 56:

     See id. at 1118.


Footnote 57:

     Id. at 1116 n.10 (quoting 33 U.S.C. sec. 905(b) (1994)).


Footnote 58:

     Id. at 1116.


Footnote 59:

     The state claims that cases cited by Cavin that adopt
Aparicio's perspective, see, e.g., In re Garda Marine, Inc., 1992
A.M.C. 2378, 1992 WL 315963 (S.D. Fla 1992), predate Chandris and
have been superseded by its reasoning.  But we note that the Fifth
Circuit recently confirmed the vitality of Aparicio and extended
its holding, finding no conflict with Chandris in doing so.  See 
Green v. Vermilion Corp., 144 F.3d 332, 337-38 (5th Cir. 1998).


Footnote 60:

     Cavin's brief mentions but does not brief a claim for
maintenance and cure -- perhaps because the "seaman" test for
maintenance and cure is the same as that under the Jones Act.  See 
Hall v. Diamond M Co., 732 F.2d 1246, 1248 (5th Cir. 1984).  Cavin
also fails to brief or mention his claim for general maritime
negligence.  Again, this may be because the Jones Act negligence
remedy is coextensive with and preemptive of the common law
negligence remedy.  See Ellenwood v. Exxon Shipping Co., 984 F.2d
1270, 1283 (1st Cir. 1993) ("[T]he Jones Act provides the exclusive
recovery in negligence for claims by seamen against their
employers.").


Footnote 61:

     Our ruling likewise requires us to vacate the trial court's
award of prevailing-party attorney's fees and costs.  But the court
separately awarded the state $6,525 for additional fees it incurred
in reassigning the case to new counsel due to Cavin's need for a
continuance of trial.  Cavin does not challenge this separate award
on appeal, and our decision does not disturb it.


Footnote 62:

     46 U.S.C.A. app. sec. 688(a) (1975).