Director, Office of Workers' Compensation Programs v. Perini North River Associates

Justice Stevens,

dissenting.

Neither the legislative history nor the judicial history on which the Court relies today justifies a departure from the language of the statute defining the post-1972 coverage of the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA). Indeed, when the issue is viewed in its proper historical perspective, it becomes even more clear that a literal reading of the Act will avoid anomalies that troubled Congress in 1972 as well as unnecessary litigation and dupli *326 cate insurance coverage in the post-1972 period. I shall first comment on the statutory language and then discuss its history.

I

The principal focus of the statute is identified by its title as well as its text. It provides workers’ compensation benefits for injuries to longshoremen and harbor workers. 1 The coverage of the statute is defined by two basic tests — a situs test focusing on the place where the injury occurred, and a status test focusing on the character of the injured employee’s occupation. An injured person is entitled to compensation under the Act only if he satisfied both tests at the time of the injury. The two tests work together to provide comprehensive coverage for a large class of workers who perform hazardous longshore and ship repair work.

The requisite occupational status is defined in § 2(3) of the Act. It provides:

*327 “The term ‘employee’ means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.” 33 U. S. C. §902 (3).

The term “maritime employment” expressly includes two important subcategories, both of which are defined with reasonable clarity. The question of construction that is presented is what, if any, additional categories of employment are included within the term “maritime employment.” There are several independent reasons for not giving the term an expansive, essentially open-ended reading.

First, one of the oldest and most respected rules of statutory construction teaches us that general terms should be construed in the light of the specific examples that are expressly identified as included therein. In this statute, the subcategories — longshoremen and harbor workers — are both described in detail, and no other subcategory is even mentioned, giving rise to an especially strong inference that Congress intended a snug fit between “maritime employment” and the two subcategories. 2

This inference is corroborated by the fact that Congress took the trouble to add language making it clear that the stat *328 utory concept of “maritime employment” was not intended to describe either the master or a member of the crew of any vessel. 3 In short, the ordinary meaning of the words “maritime employment” is actually excluded from the description of the occupational categories that Congress intended the LHWCA to cover.

It is also clear that the definition of “employee” is entirely unaffected by where he may be injured; if a worker is not an “employee” when ashore, he is not an “employee” when afloat. Therefore, it is critically significant that the definition of where “employees” are covered — the situs provision— reveals the same limited concern for the same key occupations as the status provision. An “employee” is covered only while on navigable waters and on “any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel” 33 U. S. C. § 903 (a) (emphasis added).

If we ignore history, and merely concentrate on the text of this statute, the conclusion is inescapable that it merely provides coverage for people who do the work of longshoremen and harbor workers — amphibious persons who are directly involved in moving freight onto and off ships, or in building, repairing, or destroying ships. A “checker” is such a worker. 4 So are “terminal laborers,” Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249 (1977), “cotton headers,” P. C. Pfeiffer Co. v. Ford, 444 U. S. 69 (1979), and “warehousemen,” ibid. A construction worker on a sewage treatment plant plainly lacks this direct link to maritime commerce, regardless of where he may have been working at the time of his injury.

*329 M > — t

If we examine the legislative history of the 1972 Amendments 5 — without regard to the text of the statute or judicial *330 decisions that are unmentioned in that history — we must reach the same conclusion. I cannot find a single word 6 in the Committee hearings, the Committee Reports, or the legislative debates that even suggests that any Congressman or Senator believed that the statute provided coverage for anyone other than longshoremen, harbor workers, and persons in the entirely separate categories that had been included by special statutory enactment. 7

*331 At the opening of the House Subcommittee hearings, Congressman Daniels explained his understanding of the existing scope of the LHWCA 8 and the need for amendments:

“This Act provides workmen’s compensation protection to longshoremen, ship repairmen, harbor workers at U. S. defense bases outside the United States and workers employed in private industry in the District of Columbia.

“Amendments to the Longshoremen’s and Harbor Workers’ Compensation Act are long overdue. Benefits under this act have not been increased for 12 years, and the cost to the injured workers of inadequate benefits has become a serious matter.

“For example, the law now allows a totally disabled worker to receive two-thirds of his average weekly wages at the time of his injury. However, since 1961 there has been a limitation of $70 per week as the maximum payment for a permanent disability. This statutory maximum results in a substantially lower payment than two-thirds of the weekly wage for most longshoremen and District of Columbia workers covered by this statute.

“More than 270,000 longshoremen and ship repairmen are covered by this statute. In addition, another 300,000 employees of private employers within the District of Columbia are protected by this law as well as an additional 200,000 workers in defense bases and work on Outer Continental Shelf projects.

*332 “Last year, there were more than 109,000 injuries under this statute; 240 of them fatal, 68,000 of them related to longshore work, and another 27,000 involved District of Columbia workers.” Hearings on H. R. 247 et al. before the Select Subcommittee on Labor of the House Committee on Education and Labor, 92d Cong., 2d Sess., 46 (1972) (hereinafter House Hearings).

Throughout the hearings, the legislators were told over and over again how important it was to increase the Act’s benefits for workers in the categories identified by Congressman Daniels. 9 It seems plain that these were the categories of employment that were understood by Congress to define the traditional coverage of the Act.

When the House and Senate Committees reported out their respective bills, they had granted the sought-after increase in benefits. They had also amended the provisions defining the scope of coverage, including the language of “status” and “situs” discussed in the previous section. They had done so in response to a problem in the scope of prior coverage. Before 1972, longshoremen’s and harbor workers’ federal coverage had stopped at the water’s edge. Because their duties regularly took them off the vessel and onto the *333 pier, they were constantly “walking in and out of coverage.” On the House side, Joseph Leonard, the international safety director of the International Longshoremen’s Association, spoke about the hardship this system imposed:

“Federal compensation law stops at the gangplank to the pier. When you come off of the gangplank you come under a different law; you come under the State. Thirty-six States cover these docks and maybe more now with the inland waterways.

“The longshoremen are the only workers in the United States who must worry about their injury to determine the compensation. ... It is time for a Federal law for compensation for all longshoremen.” Id., at 297.

And on the Senate side, the Minority Counsel brought this problem to the Senators’ attention. 10

*334 The Committee amendments responded to this problem by defining the protected situs to encompass the entire area in which members of the protected class customarily perform their regular duties. This definition of situs clearly precludes coverage for a construction worker standing on a sewage treatment plant or a bridge. Yet if one accepts the view of the claimant in this case, the statute grants him coverage while aboard a floating vessel and therefore expects him to walk in and out of coverage during a typical workday. Such a view is flatly inconsistent with the explicit intent of Congress to “permit a uniform compensation system to apply to employees who would otherwise be covered by this Act for [only] part of their activity.” H. R. Rep. No. 92-1441, pp. 10-11 (1972); S. Rep. No. 92-1125, p. 13 (1972). 11 Only if *335 we adhere to the language used by Congress to define the relevant status harmoniously with the relevant situs can the congressional purpose be achieved.

HH h — I HH

The pre-1972 judicial history of the LHWCA confirms my construction of the 1972 Amendments and also explains why the work of longshoremen and harbor workers is described as “maritime employment” in the statute. Only once during the 45-year interval between the enactment of the LHWCA in 1927 and its amendment in 1972, in Parker v. Motor Boat Sales, Inc., 314 U. S. 244 (1941), did this Court uphold an award of benefits under the LHWCA for a worker who was neither a longshoreman nor a harbor worker. 12 That lonely decision rested on a concern that is no longer significant, and surely provides an insufficient predicate for the Court’s all-inclusive interpretation of “maritime employment.” Before commenting specifically on the Parker case, however, I shall briefly identify the two principal chapters in the pre-1972 history of the LHWCA.

The first chapter (which covers the period from 1917 to 1927) explains why there was a need for federal legislation to provide compensation for injured longshoremen and harbor workers. Prior to 1917, it was assumed that these workers were adequately protected by whatever state legislation existed. In that year, however, this Court held that the na *336 tional interest in the uniform regulation of maritime commerce precluded state jurisdiction over injuries occurring on navigable waters. Southern Pacific Co. v. Jensen, 244 U. S. 205 (1917). 13

Over the classic dissents of two of our greatest Justices, the Court adhered to that view even though Congress twice attempted to authorize the exercise of state jurisdiction over these “maritime” injuries. 14 The so-called “Jensen line” thus developed as a constitutional limit on the exercise of state power over maritime employment.

The reasoning of the Jensen case originally appeared to foreclose the application of state workmen’s compensation schemes to any injury occurring on navigable waters. The Court soon made it clear, however, that there was a somewhat vaguely defined area — an area that became known as the “maritime but local” area — in which state jurisdiction survived. Thus, in 1922, five years before the enactment of the LHWCA, the Court held that a carpenter injured at work aboard an uncompleted ship that had been launched in the Willamette River could recover under the Oregon Workmen’s Compensation Law. Grant Smith-Porter Ship Co. v. *337 Rohde, 257 U. S. 469 (1922). The national interest in uniformity that had been considered paramount in Jensen was not thought to be materially prejudiced by Oregon’s regulation of “certain local matters.” 15

Unlike the work of the carpenter in Rohde , the work of the longshoreman was considered by the Court to have a character that required regulation by a uniform federal scheme. That much was made clear by the Court’s opinion in Northern Coal and Dock Co. v. Strand, 278 U. S. 142 (1928), 16 a case involving a fatal shipboard injury to a longshoreman.

“The unloading of a ship is not a matter of purely local concern. It has direct relation to commerce and navigation, and uniform rules in respect thereto are essential. The fact that Strand worked for the major portion of the time upon land is unimportant. He was upon the water in pursuit of his maritime duties when the accident occurred.” Id., at 144 .

The LHWCA was enacted in 1927 to remedy this inability of the States to provide adequate protection for longshoremen injured on navigable waters. The fact that these workers had been characterized as “maritime” in the cases that had denied them adequate state protection explains why Congress later used the same term in the LHWCA.

The second chapter (which covers the period from 1927 to 1972) explains why it was necessary for Congress to limit the *338 coverage of the LHWCA to a defined category of employees. As originally enacted in 1927, the LHWCA was merely intended to fill the gap in state coverage that had been created by Jensen and its progeny. 17 The provision that defined the scope of coverage, § 903(a) (which remained unchanged until 1972), purported to exclude federal coverage if recovery may “validly be provided by State law.” At first, the statutory language was taken literally, and state and federal coverage were thought to be purely complementary and mutually exclusive. See Crowell v. Benson, 285 U. S. 22, 39 , and n. 3 (1932). But given the imprecision of the Jensen-Rohde line, that system risked serious unfairness: If an injured employee asked for state benefits and was seaward of the line, a literalist interpretation of the LHWCA would bar recovery. An employee close to the line might easily misguess, miss the statute of limitations, and end up with no benefits at all.

This Court responded to this potential for injustice in two ways. Notwithstanding the plain language of the statute which purported to describe mutually exclusive spheres of state and federal jurisdiction, 18 the Court first upheld a state award in a case in which it was assumed that the federal statute would also apply, Davis v. Department of Labor, 317 U. S. 249 (1942), and then upheld a federal award in a case in which the Court assumed that recovery could “validly be pro *339 vided by State law.” Calbeck v. Travelers Insurance Co., 370 U. S. 114 (1962). 19 But the Court’s mechanism for ensuring that no employee would go entirely unprotected created a twilight zone of overlapping jurisdiction in which many employers were required to obtain duplicate insurance coverage. 20 Moreover, the practice of defining coverage entirely by reference to the place where an accident occurred gave rise to the anomalous circumstance that longshoremen regularly walked in and out of coverage during the performance of their routine duties.

Whatever force the Jensen rule may once have had, it is now perfectly clear that a shore-based worker who is normally covered by a state compensation program may still recover state benefits even though he is injured over navigable waters. Surely no Member of this Court would question the *340 fact that the construction worker injured in this case could have received a state award even though he was on a barge in the Hudson River when he was injured. The concern about the inability of the States to protect land-based workers who may temporarily cross the Jensen line is no longer significant — surely that concern provided no motivation whatsoever for the action Congress took in 1972 when it amended the LHWCA.

On the other hand, the 1972 Congress clearly did have reason to be concerned about the cost of duplicate insurance coverage and the unpredictability of coverage that depends entirely on the happenstance of where an accident occurs. As I have mentioned above, 21 the unpredictability of coverage was mentioned explicitly in the legislative history. And the burdens of duplicate insurance for employees who might occasionally walk into federal coverage became substantially more onerous as a result of the 1972 changes that made federal LHWCA benefits significantly higher than state workers’ compensation benefits. 22 Both of these concerns are alleviated by defining the scope of the statutory coverage in terms of the status of the covered employee. And both of these concerns can only be aggravated by indiscriminately *341 extending coverage to an undefined group of workers who plainly do not “load, unload, build, or repair ships.”

All that remains to support the Court’s rewriting of the statute is the absence of an expressed intent to withdraw pre-1972 coverage. As I have already noted, that intent is adequately demonstrated by the changes in the text of the statute itself. 23 Even if that were not sufficient, however, the Court is really objecting to nothing more than a failure to mention a single case decided in 1942 — Parker v. Motor Boat Sales, Inc. — during the hearings or the debates. But when one considers the highly unusual facts of that case, it is unlikely that any Member of Congress had it in mind and virtually inconceivable that Congress would have wanted to provide federal coverage for similar future cases. The employee in the Parker case — a janitor for a small boat concern located on the James River — was not protected by a state workmen’s compensation program for a reason that had nothing to do with the character of his employment or the place of his injury. The employer did not have the minimum number of employees to bring it under the Virginia statute. See Motor Boat Sales, Inc. v. Parker, 116 F. 2d 789, 793 (CA4 1941). The happenstance that the janitor was riding in a motorboat at the time of his injury enabled the Court to find a basis for sustaining an award under the LHWCA as it was then written. 24 Even if the presumption that Congress understands the legal context in which it legislates justifies *342 the inference that it remembered this isolated case decided three decades earlier, it by no means follows that Congress had a duty to disavow the case explicitly in order to give effect to its otherwise plainly expressed purpose. 25

This case presents us with a straightforward problem of statutory construction. The Court should begin its analysis with the language of the statute itself. “Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 108 (1980). In this case the statutory language plainly encompasses longshoremen and harbor workers; there is no affirmative evidence of a legislative intent to provide coverage for any other type of occupation. Surely there is no evidence of an intent to classify the work of a janitor or a builder of sewage treatment plants as “maritime employment.” 26 *343 Because the claimant in this case was neither a longshoreman nor a harbor worker, I would affirm the judgment of the United States Court of Appeals for the Second Circuit.

By reason of several specific statutory enactments, the LHWCA’s compensation scheme is, or has been, also applied to:

(a) employees on defense bases, Act of Aug. 16, 1941, ch. 357, § 1, 55 Stat. 622 (codified, as amended, at 42 U. S. C. §§ 1651-1654 );

(b) employees of nonappropriated fund instrumentalities such as post exchanges, Act of June 19, 1952, Pub. L. 397, §2, 66 Stat. 139 (codified, as amended, at 5 U. S. C. §§ 8171-8173 );

(c) employees of Government contractors injured overseas by war-risk hazards, Act of Dec. 2, 1942, ch. 668, Title I, § 102, 56 Stat. 1031 (codified, as amended, at 42 U. S. C. § 1702 );

(d) workers in the District of Columbia, Act of May 17, 1928, ch. 612, 45 Stat. 600 , repealed by Act of July 1, 1980, D. C. Law 3-77, § 3, see D. C. Code § 36-301 (1981); and

(e) workers on oil drilling rigs on the Outer Continental Shelf, Act of Aug. 7, 1953, Pub. L. 212, §4(c), 67 Stat. 463 (codified, as amended, at 43 U. S. C. § 1333 (c)).

In this case, however, we are concerned with the coverage provided by the LHWCA itself.

Coincidentally, two authors named Sutherland have made this point in language that is strikingly suitable to this case. See W. Sutherland, The Shipbuilder’s Assistant 77 (1755) (“[T]he straiter and snuger the Sheer lies, the less Wind is held to hinder the Motion of the Ship”) (emphasis added); J. Sutherland, Statutes and Statutory Construction § 273 (1891) (footnote omitted) (“The words ‘other persons,’ following in a statute the words ‘warehousemen’ and ‘wharfinger,’ must be understood to refer to other persons ejusdemgeneris, viz., those who are engaged in a like business, or who conduct the business of warehousemen or wharfingers with some other pursuit, such as shipping, grinding, or manufacturing”).

Seamen are protected under the Jones Act. See 46 U. S. C. §688 .

See H. R. Rep. No. 92-1441, p. 11 (1972); S. Rep. No. 92-1125, p. 13 (1972); Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249 (1977).

The 1972 Amendments made two changes that are relevant here. First, they modified the definitions in 33 U. S. C. §§902 (3) and 902(4). Before the Amendments, the definitions read:

“(3) The term ‘employee’ does not include a master or member of a crew of any vessel, nor any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.

“(4) The term ‘employer’ means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any dry dock).” §§ 902(3), (4) (1970 ed.).

As amended in 1972, the definitions read:

“(3) The term ‘employee’ means any person engaged in maritime employment, including any longshoreman or other person engaged in long-shoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.

“(4) The term ‘employer’ means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel).”

Second, the Amendments modified the section defining covered injuries, 33 U. S. C. § 903 (a). Before the Amendments, it read:

“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. No compensation shall be payable in respect of the disability or death of—

“(1) A master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net; or

“(2) An officer or employee of the United States or any agency thereof or of any State or foreign government, or of any political subdivision thereof.” § 903(a) (1970 ed.).

*330 As amended in 1972, the section reads:

“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 adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). No compensation shall be payable in respect of the disability or death of—

“(1) A master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net; or

“(2) An officer or employee of the United States or any agency thereof or of any State or foreign government, or of any political subdivision thereof.” 86 Stat. 1251 , Longshoremen’s and Harbor Workers’ Compensation Act Amendments of 1972.

The Court assumes that the words “traditionally covered” in the Committee Reports are intended to refer to employees who are not longshoremen or harbor workers. Ante, at 319, quoting S. Rep. No. 92-1125, at 16. See n. 1, supra. In particular, the Court assumes that the Committee was referring to the claimants in Parker v. Motor Boat Sales, Inc., 314 U. S. 244 (1941), Davis v. Department of Labor, 317 U. S. 249 (1942), and Calbeck v. Travelers Insurance Co., 370 U. S. 114 (1962). As I point out in Part III, infra, the Calbeck claimants were shipbuilders, a subcategory of the statutorily defined class of harbor workers, who are of course still covered under the 1972 Act; Davis held only that the claimant was entitled to state benefits; and Parker was plainly not a “traditional” LHWCA case. None of these cases was cited at any time in the hearings or the Reports. In my opinion the reference to the “traditional” coverage of the Act was intended to identify the coverage of longshoremen and harbor workers as opposed to the special categories of coverage defined by specific statutory enactment.

See n. 1, supra.

None of the original bills proposing amendments to the LHWCA in 1972 embodied any change in the scope of coverage. See H. R. 247; H. R. 3505; H. R. 12006; H. R. 15023; S. 2318; S. 525; S. 1547 (all in 92d Cong., 2d Sess.). The changes were incorporated between the hearings and the final Committee action. See H. R. 12006; S. 2318 (as reported). The hearings are nonetheless relevant because they give more direct evidence of what groups the legislators intended to protect than does the history of pre-1972 Supreme Court decisions.

’E. g., Statement of James Hodgson, Secretary of Labor, House Hearings, at 47-64 (referring throughout to “longshoremen” and the “longshore industry”); Statement of Ralph Hartman, Bethlehem Steel Corp., id., at 67 (“reference to the Longshoremen’s and Harbor Workers’ Compensation Act seems to suggest that the only industry involved is ‘longshoring,’ which fails to recognize that the act is also applicable to shipbuilding and ship repair yards — and to the District of Columbia”); Exhibits DI, D2, E, and F to Statement of James Flynn, New York Shipping Association, id., at 98-100 (pointing out how hazardous longshoring is); Statement of Howard McGuigan, AFL-CIO, id., at 255-258 (pointing out how LHWCA benefits were far below 66%% of current wage levels in the longshore industry, in the shipbuilding and ship repair industry, and in the District of Columbia). Cf. Statement of John J. O’Donnell, Air Line Pilots Association, id., at 327-329 (suggesting that coverage be extended to flight crews).

The Minority Counsel, Eugene Mittelman, had the following exchange with a representative of the AFL-CIO:

“Mr. Mittelman. My last question concerns the fact that the longshoreman [sic] applies only when the man is over the navigable waters of the United States, and under whole series of court decisions there has been established a line where the provisions of the Longshore Act apply when the man is over the water, and yet the provisions of the State workmen’s compensation law applies if the man is injured on land.

“Do you have any position on this, concerning whether the Federal law should be extended, really, so that a uniform system of benefits is applicable to longshoremen, regardless of which side of the waterline the injury occurred on?

“Mr. McGuigan. The first position we would have is that obviously there would be no incentive to cover him under the act until we know the act gives him benefits superior to the State workmen’s compensation laws.

“Mr. Mittelman. I appreciate that. But assuming we would amend the act to provide a reasonable schedule of benefits as proposed in this bill, would you favor the principle of extending of the Longshore Act to cover all longshore workers whether performed on land or over water?

“Mr. O’Brien. . . . [I]f the act were amended to take up its former place of prominence in the field of workmen’s compensation, we would certainly *334 like to see the coverage of the act extended.” Hearings on S. 2318 et al. before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 92d Cong., 2d Sess., 73-74 (1972).

The language of the Committee Reports shows how clearly Congress understood who was to be covered:

“The present Act, insofar as longshoremen and ship builders and ship repairmen are concerned, covers only injuries which occur ‘upon the navigable waters of the United States.’ Thus, coverage of the present Act stops at the water’s edge; injuries occurring on land are covered by State Workmen’s Compensation laws. The result is a disparity in benefits payable for death or disability for the same type of injury depending on which side of the water’s edge and in which State the accident occurs.

“The Committee believes that the compensation payable to a longshoreman or a ship repairman or a builder should not depend on the fortuitous circumstance of whether the injury occurred on land or over water. Accordingly, the bill would amend the Act to provide coverage of longshoremen, harbor workers, ship repairmen, ship builders, shipbreakers, and other employees engaged in maritime employment (excluding masters and members of the crew of a vessel) if the injury occurred either upon the navigable waters of the United States or any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other area adjoining such navigable waters customarily used by an employer in loading, unloading, repairing, or building a vessel.” H. R. Rep. No. 92-1441, at 10; S. Rep. No. 92-1125, at 12-13.

Arguably one other case, mentioned in a footnote of the Court’s opinion, ante, at 312, n. 21, echoed Parker's broad construction of the scope of LHWCA coverage. Pennsylvania R. Co. v. O’Rourke, 344 U. S. 334 (1953). There, this Court struck down an award of benefits under the Federal Employers’ Liability Act, reasoning that the employee in that case — a brakeman who worked moving freight cars onto “car floats” — could have recovered under the LHWCA. The opinion in O’Rourke is somewhat cloudy, however, since it does not explicitly state that the particular employee was engaged in maritime employment, but only that his employer had such employees. Id., at 339-340 . Like the cases on which the Court relies, O’Rourke was not mentioned in the 1972 legislative history.

The Court reasoned:

“The work of a stevedore in which the deceased was engaging is maritime in its nature; his employment was a maritime contract; the injuries which he received were likewise maritime; and the rights and liabilities of the parties in connection therewith were matters clearly within the admiralty jurisdiction.

“If New York can subject foreign ships coming into her ports to such obligations as those imposed by her Compensation Statute, other States may do likewise. The necessary consequence would be destruction of the very uniformity in respect to maritime matters which the Constitution was designed to establish; and freedom of navigation between the States and with foreign countries would be seriously hampered and impeded.” 244 U. S., at 217 (citation omitted).

See id,., at 218-223 (Holmes, J., dissenting); Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 166-170 (1920) (Holmes, J., dissenting); Washington v. W. C. Dawson & Co., 264 U. S. 219, 228-239 (1924) (Brandéis, J., dissenting).

In explaining why the holding in Rohde was consistent with Jensen and subsequent cases, the Court stated:

“In each of them the employment or contract was maritime in nature and the rights and liabilities of the parties were prescribed by general rules of maritime law essential to its proper harmony and uniformity. Here the parties contracted with reference to the state statute; their rights and liabilities had no direct relation to navigation, and the application of the local law cannot materially affect any rules of the sea whose uniformity is essential.” 257 U. S., at 477 .

The Strand case was decided in 1928 but arose out of an injury that had occurred in 1924, prior to the enactment of the LHWCA.

“The main impetus for the Longshoremen’s and Harbor Workers’ Compensation Act was the need to correct a gap made plain by decisions of this Court. We believe that there is only one interpretation of the proviso in § 3(a) which would accord with the aim of Congress; the field in which a state may not validly provide for compensation must be taken, for the purposes of the Act, as the same field which the Jensen line of decision excluded from state compensation laws. Without affirming or rejecting the constitutional implications of those cases, we accept them as the measure by which Congress intended to mark the scope of the Act they brought into existence.” Parker v. Motor Boat Sales, Inc., 314 U. S., at 250 .

See Davis v. Department of Labor, 317 U. S., at 261 (Stone, C. J., dissenting); Calbeck v. Travelers Insurance Co., 370 U. S., at 132 (Stewart, J., dissenting).

The Court relies heavily on the proposition that Congress did not wish “to repeal Calbeck” {ante, at 321). It is, of course, true that the claimants in that case are still covered by the Act. What Congress repealed was the statutory language that appeared to preclude coverage for harbor workers like the Calbeck claimants who were injured in the maritime but local area. The problem confronted by the Court in Calbeck simply no longer exists.

In 1942, this Court observed:

“The horns of the jurisdictional dilemma press as sharply on employers as on employees. In the face of the cases referred to above, the most competent counsel may be unable to predict on which side of the line particular employment will fall. The employer’s contribution to a state insurance fund may therefore wholly fail to protect him against the liabilities for which it was specifically planned. If this very case is affirmed, for example, the employer will not only lose the benefit of the state insurance to which he has been compelled to contribute and by which he has thought himself secured against loss for accidents to his employees; he must also, by virtue of the conclusion that the employee was subject to the federal act at the time of the accident, become liable for substantial additional payments. He will also be subject to fine and imprisonment for the misdemeanor of having failed, as is apparently the case, to secure payment for the employee under the federal act. 33 U. S. C. §§938 , 932.” Davis, 317 U. S., at 255 .

On that point, the dissenter was in complete agreement. See id., at 262 (Stone, C. J., dissenting).

See supra, at 332-334.

Before 1972, the financial burden of duplicate coverage had not been particularly heavy. LHWCA benefits were low, and insurance carriers offered to cover operations subject to the LHWCA for only a nominal addition to the state workers’ compensation premiums. See Note, 50 Calif. L. Rev. 342 , 347 (1962); Comment, 30 NACCA L. J. 200, 203, 206 (1964); Gardner, Remedies for Personal Injuries to Seamen, Railroadmen, and Longshoremen, 71 Harv. L. Rev. 438 , 449-450, and n. 34 (1958).

Today, of course, things are quite different. In 1981, LHWCA premiums averaged 252 percent higher than California construction worker premiums, and 160 percent higher than Florida premiums. See Testimony of the Associated General Contractors of America, Hearings on S. 1182 before the Subcommittee on Labor of the Senate Committee on Labor and Human Resources, 97th Cong., 1st Sess., 924-936 (1981).

The “status” provision replaced the “unless recovery may validly be provided by state law” language that was being construed in Parker and Calbeck .

In 1942, as it does today, the LHWCA expressly excluded coverage of injuries to members of the crew of any vessel and to persons who load or unload small boats. See n. 5, supra. Thus, a janitor could not recover on the theory that he was a member of the crew of the motorboat, or that he helped to load or unload the motorboat. It is difficult to explain the narrow category of workmen associated with motorboat operations for whom Parker expressed concern or for whom the Court preserves coverage today.

The Court cites three cases from the Federal District Courts, three from the Courts of Appeals, and one from a state appellate court in which workers who were not longshoremen or harbor workers were stated to have been covered by the LHWCA before 1972. Ante, at 312, n. 21. It uses these cases to support its argument that it would have been a radical and unsettling change for the 1972 Congress to limit post-1972 coverage to people who perform the work of longshoremen and harbor workers. I would draw a somewhat different inference. It is hard to believe that Congress had in mind such a light sprinkling of cases during the 45-year interval between 1927 and 1972 when it spoke of the traditional coverage of the Act, especially given Congressman Daniels’ reminder that in 1970 there were 68,000 injuries to longshoremen. See supra, at 332.

1 note some tension among different components of the Court’s opinion with regard to whether the janitor in Parker would be covered after 1972. On the one hand, the Court states:

“[Bjefore 1972 . . . any worker injured upon navigable waters in the course of employment was ‘covered . . . without any inquiry into what he was doing (or supposed to be doing) at the time of his injury. . . .’ ” Ante, at 311. “We are unable to find any congressional intent to withdraw coverage of the LHWCA from those workers injured on navigable waters in the course of their employment, and who would have been covered by the Act before 1972.” Ante, at 315. “Congress . . . assumed that injuries occurring on *343 the actual navigable waters were covered, and would remain covered.” Ante, at 319.

On the other hand, it concludes:

“Our holding, of course, extends only to those persons ‘traditionally covered’ before the 1972 Amendments. We express no opinion whether such coverage extends to a worker injured while transiently or fortuitously upon actual navigable waters .... Our decision today should not be read as exempting water-based workers from the new status test. Rather, our holding is simply a recognition that a worker’s performance of his duties upon actual navigable waters is necessarily a very important factor . . . .” Ante, at 324, n. 34.

Similarly, at one point the Court says “[Congress’] use of ‘employees traditionally covered’ was intended to refer to those employees included in the scope of coverage under Parker, Davis, and Calbeck,” ante at 319-320, but at another point it concedes that those very cases were read “not to limit LHWCA coverage only to ‘traditional’ maritime activities,” ante, at 312, n. 21.

I agree with the Court that the post-1972 Act provides coverage for “traditional” maritime activities. However, as I have indicated supra, at 328-335, Congress understood such activities to be those of longshoremen and harbor workers, not janitors and construction workers.