The opinion
HAYS, Circuit Judge
(dissenting):
I dissent.
The decision of the court is contrary to decisions of the Supreme Court and of this court virtually identical in their factual setting. T. Smith & Son, Inc. v. Taylor, 276 U.S. 179 , 48 S.Ct. 228 , 72 L.Ed. 520 (1928); Vega v. United States, 191 F.2d 921 (2d Cir. 1951), affirming per curiam 86 F.Supp. 293 (S.D.N.Y. 1949), cert. denied, 343 U.S. 909 , 72 S.Ct. 640 , 96 L.Ed. 1326 (1952); Jeffers v. Foundation Co., 85 F.2d 24 (2d Cir. 1936).
Our problem is whether we draw the line separating land from navigable waters at one point or at another. 1 Any rule that we apply is necessarily arbitrary from the longshoremen’s point of view because the boundary line between land and sea is crossed by a great deal of traffic and many injuries occur near the line. Accepting this situation, we should adhere to a rule as simple to understand and apply as possible:
Gilmore and Black state that:
“Whether or not the injury occurred on navigable waters would be a trifle harder [than determining certain exclusions for Government employees], but that determination could be made in most cases without too much toil and sweat (bearing in mind that while the dock is an extension of the land and not navigable waters, the gangway is an extension of the ship and is navigable waters).” Admiralty 339 (1957).
The simplest rule to apply is that suggested by the traditional law as set forth in Gilmore and Black: an extension of the land such as a pier is part of the land, *648 and an extension of the ship, such as the gangway, is on navigable waters. By natural development from this rule an extension of the pier, such as the skid in the present case, is land.
The case of Vega v. United States, 191 F.2d 921 (2d Cir. 1951), affirming per curiam 86 F.Supp. 298 (S.D.N.Y.1949), cert. denied, 343 U.S. 909 , 72 S.Ct. 640 , 96 L.Ed. 1326 (1952), is almost exactly on point. The injury in that case occurred upon a platform “eight to twelve inches above the level of the pier to which it was nailed and bolted.” Not only did this platform overhang the water, as did the skid in this case, but it was a temporary fixture of the pier, upon which the ship’s gangway rested, “built and maintained * * * to facilitate the ingress and egress of the employees engaged in the [ship’s] conversion.” 86 F.Supp at 293. The district court dismissed the injured workman’s claim. The court stated that:
“The platform on which libellant slipped and fell was not a part of the [ship], nor attached to it. It was nailed and bolted to the pier. In contemplation of the law it is ‘to be deemed an extension of the land.’ T. Smith & Son v. Taylor, 276 U.S. 179, 182 , 48 S.Ct. 228, 229 , 72 L.Ed. 520 [1928]. * * *” 86 F.Supp. at 294 .
On appeal, this court affirmed per curiam, without discussion of what must have seemed an obvious application of principles of maritime law.
In T. Smith & Son, Inc. v. Taylor, 276 U.S. 179 , 48 S.Ct. 228 , 72 L.Ed. 520 (1928), the death of a longshoreman was caused by his being knocked into the water from a stage that rested upon a wharf and that “projected a few feet over the water to or near the side of the vessel.” 276 U.S. at 181 , 48 S.Ct. at 229 . The Supreme Court held unanimously that the longshoreman’s fatal injury “was given and took effect while deceased was upon the land.” Id. at 182 , 48 S.Ct. at 229 .
The facts on which this court based its decision in Jeffers v. Foundation Co., 85 F.2d 24 (1936), are also similar to the facts of the instant case. A workman was injured while working in a temporary cofferdam, used in laying the foundation for a bridge pier. The court stated that “a man injured while at work upon a pier or abutment, even though that projects into navigable water, is not within the ‘general admiralty jurisdiction.’ ” Id. at 25 . (Emphasis added.)
The fact that an injury occurred upon a structure which at times swung out over otherwise navigable waters did not persuade the Supreme Court in The Troy, 208 U.S. 321 , 28 S.Ct. 416 , 52 L.Ed. 512 (1908), that it should distinguish the case from that where an injury occurred on a stationary pier. Cleveland Term. & Valley R. R. Co. v. Cleveland S.S. Co., 208 U.S. 316 , 28 S.Ct. 414 , 52 L.Ed. 508 (1908).
Part II of the court’s opinion wisely eschews “simplistic, mechanistic formulas in the quixotic quest for a fixed line of demarcation * * * in the developing and ever-changing maritime law.” But what is to be said of the formula set out in Part I, i. e., that the statute applies because “a skid like a gangplank is not a permanent structure and the waters under both are as navigable as they would be if a ship were moored in the same space and then sailed”? By the very terms of the Act, “spatial dissections” must be made. The court’s decision necessarily displaces as much land as is necessary to float the longshoreman’s claim.
I am not aware of any newly discovered commercial or other exigencies which call upon us to extend jurisdiction under the Act or to expand the protection of the Act to cover new fact situations. When Congress adopted the Admiralty Extension Act 2 it had an opportunity to *649 expand federal compensation to cover all longshoremen’s injuries caused in loading and unloading vessels. Congress did not take advantage of that opportunity. S.Rep.No.1593, H.R.Rep.No.1523, 80th Cong., 2d Sess. (1948), reprinted in [1948] 2 U.S.Code Cong.Service, p. 1898; American Export Lines, Inc. v. Revel, 266 F.2d 82, 84 (4th Cir. 1959). When Congress enacted the Longshoremen’s Act in 1927, incorporating the phrase “upon the navigable waters,” in preference to the phrase “within the admiralty jurisdiction,” 3 there was a conscious choice of adopting known distinctions based on the pre-existing admiralty decisions, rather than tying the scope of the Act to changing concepts of maritime jurisdiction.
The judicial task is one of interpreting the statutory phrase “upon the navigable waters” in the light of the congressional purpose in 1927 of supplementing state compensation acts where necessary. There is no need to create new and even more difficult distinctions in these already muddy waters.
. Longshoremen’s and Harbor Workers’ Compensation Act § 3(a), 44 Stat. 1426 (1927), 33 U.S.C. § 903 (a) (1958):
“Compensation shall be payable under this Act in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen’s compensation proceedings may not validly be provided by State law. * * * ”
In the case of Calbeck v. Travelers Ins. Co., 370 U.S. 114 , 82 S.Ct. 1196 , 8 L.Ed. 2d 368 (1962), to which the majority opinion refers, the Supreme Court was not concerned with interpretation of the statutory phrase “an injury occurring upon the navigable waters of the United States,” but with the construction of the words “if recovery for the disability or death through workmen’s compensation proceedings may not validly be provided by State law.” Eor comment on the effect of Calbeck, see Gainsburgh and Fallon, Calbeck v. Travelers Ins. Co.: The Twilight’s Last Gleaming?, 37 Tul. L.Rev. 79 (1962); The Supreme Court—1961 Term, 76 Harv.L.Rev. 75, 95-97 (1962); 48 Cornell L.Q. 532 (1963); 1963 Duke L.J. 327 ; 31 Fordham L.Rev. 398 (1962); 10 U.C.L.A.L.Rev. 1225 (1963).
. 62 Stat. 496 (1948), 46 U.S.C. § 740 (1958):
“The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land. * * * ”
. S. 3170, 69th Cong., 1st Sess. § 3 (1927), 82 S.Ct. at 1201-1202 . s originally drafted. See 370 U.S. at 122-124 ,