Note by David Collins
In April of 1981, Robert Lee Beverly was killed in the course of his employment with the ship cleaning and repairing firm, Action Marine Services, Inc. While cleaning bromide tanks aboard the M/V Nikki Candies, he was exposed to toxic fumes that caused his death. Because Beverly's sole survivors, his parents, did not meet the dependency requirements of the federal Longshoremen's and Harbor Workers' Compensation Act (LHWCA), they filed for recovery under a provision of the Louisiana Workmen's Compensation law, which entitles each nondependent parent to a lump sum of $20,000. Defendant, Action Marine, raised exceptions of no right of action, no cause of action, and lack of jurisdiction, alleging that plaintiffs' exclusive remedy was the LHWCA. The trial judge sustained these exceptions and dismissed the case, whereupon it was appealed to the Third Circuit Court of Appeals. That court, relying on a Louisiana case, Ellis v. Travelers Insurance Co., and a Fifth Circuit case, Flowers v. Travelers Insurance Co., affirmed without dissent. The Supreme Court of Louisiana reversed and held that since the case fell within a “twilight zone” of concurrent federal and state jurisdiction, the plaintiffs' choice of forum could not be challenged. Beverly v. Action Marine Services, Inc., 433 So. 2d 139 (La. 1983).
About the Author
David Collins.
Citation
58 Tul. L. Rev. 1237 (1984)