Opinion

Pittston Stevedoring Corp. v. Dellaventura

  • 544 F.2d 35
  • 1976 A.M.C. 881
Court
Court of Appeals for the Second Circuit
Filed
Jul 1, 1976
Status
Published
Author
Lumbard
On the bench
Friendly, Lumbard, Oakes
Cited by
104 cases
Authority
More cited than 18.9%

finding that the plaintiff had failed to establish standing by “submittfing] nothing but conclusory assertions of adverse effect on future premiums”

How later courts described this case

  • finding that the plaintiff had failed to establish standing by “submittfing] nothing but conclusory assertions of adverse effect on future premiums”
  • interpreting § 921(c) to make "the time for seeking review start to run with the entry of the agency's order, even though the agency is under a duty to give notice"
  • interpreting § 921(e) to make “the time for seeking review start to run with the entry of the agency’s order, even though the agency is under a duty to give notice”
  • finding less deference due to an "umpiring" agency than a policy-making agency

Written by the judges who cited it.

The opinion

LUMBARD, Circuit Judge

(concurring and dissenting):

I agree that Pittston’s petition seeking review of the award in Scaffidi’s case should be dismissed as there is no justiciable controversy by reason of the insurance carrier’s payment of the award. I also agree that Pittston’s petition to review Dellaventura’s case should be dismissed as untimely filed.

With respect to the denial of the petitions in the Blundo and Caputo cases, I respectfully dissent. As the relevant considerations have been so ably and extensively set forth here by Judge Friendly and also by Judge Winter in I.T.O. of Baltimore v. Benefits Review Board, U. S. Dep’t of Labor and Adkins, 529 F.2d 1080 (4th Cir. 1975), no purpose would be served in any further protracted discussion. I agree with Judge Winter that “[t]he 1972 extension of coverage was intended only to remove inequities and anomalies arising when a person otherwise engaged in ‘maritime employment’ was injured on land,” 529 F.2d at 1081 , and with his additional statement that “. . . with respect to longshoremen or other persons engaged in longshoring operations, the Amendments extend only to those employees engaged in loading and unloading activities between the ship and the first (last) point of rest, including checkers ‘directly involved in [such] loading or unloading functions,’ ” 529 F.2d at 1088 .

It is more in keeping with the realities of maritime employment to draw the line at the first point of rest in discharging the cargo and at the last point of rest in loading a vessel. Moreover, such a rule is far easier to apply and avoids claims such as that put forward by Dellaventura that he is entitled to compensation for his injury while loading a consignee’s truck with coffee bags which had been stored in a warehouse for 133 days after being removed from the ship CAMPECHE. This being so, it seems to me that the interpretation adopted by the Fourth Circuit is more consistent with what the Congress intended and with the language of the 1972 amendment.

Blundo, a checker employed by I.T.O., was injured while checking cargo being removed from a container. The container was located on a stringpiece of the 19th Street pier in Brooklyn, had been unloaded a few days before at a different pier and *58 had been trucked through the streets to the 19th Street pier to be opened there by United States Customs before the container was stripped. What Blundo did was done well after the container had been left at the first point of rest.

Caputo’s principal duties related to terminal labor. When injured he was working at the northeast marine terminal on the Brooklyn waterfront inside the truck of a consignee, while helping the consignee’s truck driver load boxes of cheese which had been discharged from a vessel at least five days before. Thus in Caputo’s case his activity occurred after the boxes of cheese had come to rest on the pier.

For these reasons I would grant the petition and set aside the awards in the cases of Blundo and Caputo.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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