Appendix — International Terminal Operating Company, Inc. v. Blundo
Supreme Court brief1976
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FILED
SEP 28 1916
MICHAEL RODAK, JR..CLERK
IN THE
Supreme Court of the Unit
OCTOBER TERM, 1976
No. 76- 6-454
INTERNATIONAL TERMINAL OPERATING Co., INC.,
Petitioner,
VS.
CARMELO BLUNDO
and
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,
Respondents.
APPENDIX TO PET: i:ION FOR A
WRIT OF CERTIORARI
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INDEX TO APPENDIX
Appendix A
Opinion and Judgment of the United States Court
of Appeals for the Second Circuit (Blundo v. Inter-
national Terminal Operating Co., No. 75-4249,
decided July 1, 1976), affirming the Benefits Re-
IIIT ¢. cscsristecsrnctstinchininbiceciceestaemmnnsatngeesisgeloniiesinbiniiicinsiaiion
Appendix B
Decision of the Benefits Review Board (Blundo v.
International Terminal Operating Co., 2 BRBS
376, decided October 30, 1975) —..............-.. ea
Appendix C
Decision and Order of Administrative Law Judge
(Blundo vy. International Terminal Operating Co.,
Case No. 75-LHCA-157, issued March 3, 1975)...
Appendix D
Order Amending Previously Issued Decision and
Order of Administrative Law Judge (Blundo Vv.
International Terminal Operating Co., Case No.
75-LHCA-157, issued April 18, 1975) .........-.......
Appendix E
Stockman Vv. John T. Clark & Son (1st Cir., No. 75-
1360, decided July 27, 1976) _....... OE i eres re
Appendix F
Sea-Land Service, Inc. v. Director, Office of Work-
ers’ Compensation Programs (3rd Cir., No. 75-
2039, decided August 5, 1976) —.......------- en...
Appendix G
I.T.0. Corporation of Baltimore v. Benefits Re-
view Board (4th Cir. in banc, Nos. 75-1051, 75-
1075, 75-1196, decided August 26, 1976) ..............
Appendix H
Effect of 1972 Amendments on Injuries Reported
Under Longshore and Harbor Workers’ Compensa-
tion Act, Comparison of Old and Extended Cov-
erage, Fiscal Years 1975 and 1976 ..........---20-2e
Page
la
45a
49a
60a
62a
90a
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APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SEPTEMBER TERM, 1975
Nos. 1004, 1014, 1044, 1111
Argued May 20, 1976 Decided July 1, 1976
Docket No. 76-4042
PITTSTON STEVEDORING CORPORATION and
THE HOME INSURANCE COMPANY,
. Petitioners,
ANTHONY DELLAVENTURA,
ond Respondent,
DIRECTOR, OFFICE OF WORKERS COMPENSATION
PROGRAMS, U.S.D.L.,
Party in Interest.
Docket No. 76-4009
NORTHEAST MARINE TERMINAL COMPANY, INC., Employer
and
STATE INSURANCE FUND, Carrier,
Petitioners,
v.
RALPH CAPUTO, Claimant
and
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
Respondents.
2a
Docket No. 70-4043
PITTSTON STEVEDORING CORPORATION,
Petitioner,
Vv.
JOHN SCAFFIDI,
Respondent.
Docket No. 75-4249
CARMELO BLUNDO,
. Claimant-Respondent,
V.
INTERNATIONAL TERMINAL OPERATING COMPANY, INC.,
Self-Insured Employer—Petitioner,
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
Respondent.
Before LUMBARD, FRIENDLY and OAKES, Circuit
Judges.
Petition to review four orders of the Benefits Review
Board granting awards under the Longshoremen’s and
Harbor Workers’ Compensation Act. One petition is dis-
missed as untimely and a second as having been mooted
by payment of the award by the insurance carrier; the
other two awards are affirmed.
Joseph F. Manes, Esq., Croton-on-Hudson, N.Y., for
Pittston Stevedoring Corporation and The Home
Insurance Company.
3a
William M. Kimball, Esq., New York, N.Y. (Bur-
lingham Underwood & Lord, Esgqs., of Counsel),
for Northeast Marine Terminal Company and
State Insurance Fund.
Leonard J. Linden, Esq., New York, N.Y. (Linden &
Gallagher, Esqs., of Counsel), for International
Terminal Operating Company, Inc.
Angelo C. Gucciardo, Esq., New York, N.Y. (Israel,
Adler, Ronca & Gucciardo, Esqs., of Counsel), for
Respondents Dellaventura, Caputo, Scaffidi and
Blundo.
Ronald E. Meisburg, Esq., U.S. Department of
Labor, Washington, D.C. (William J. Kilberg,
Solicitor of Labor; Laurie M. Streeter, Associate
Solicitor; Jean S. Cooper, Esq., and Francine K.
Weiss, Esq., Department of Labor, of Counsel),
for Director, Office of Workers’ Compensation
Programs.
Thomas W. Gleason, Jr., New York, N.Y. (Irwin
Herschlag, Esq., New York, N.Y., of Counsel),
for International Longshoremen’s Association,
AFL-CIO, amicus curiae.
Thomas D. Wilcox, Esq., Washington, D.C., for Na-
tional Association of Stevedores, amicus curiae.
FRIENDLY, Circuit Judge:
We have here four petitions under 33 U.S.C. § 921(e),
by employers, in some instances joined by their insurance
carriers, to review orders of the Benefits Review Board
(BRB) affirming compensation awards made to four
employees under the Longshoremen’s and Harbor Work-
ers’ Compensation Act (LHWCA), as amended in 1972,
33 U.S.C. §§ 901 et seq.‘ They present a question of con-
1 The Benefits Review Board was created by the 1972 Amendments
to the LHWCA as an independent, “quasi-judicial” body within the
4a
siderable importance, namely, how far the 1972 Amend-
ments extended the coverage of LHWCA.
Presented with the same general issue, a divided
panel of the Fourth Circuit ruled in favor of the em-
ployers, 1.7.0. Corporation of Baltimore v. Benefits Re-
view Board, U.S. Dep’t of Labor and Adkins, 529 F.2d
1080 (1975), holding that the Act extended benefits only
to persons injured while unloading cargo from the ship
to what the majority termed a “first point of rest,” i.e.,
the first place where the cargo is deposited on a pier or
terminal area after being unloaded, and to persons in-
jured while loading cargo from the “last point of rest,”
529 F.2d at, 1081. The /.7.0. case has been reheard
en banc. We are told that only one other circuit has con-
strued the extended coverage provisions here at issue,
Weyerhaeuser Co. Vv. Gilmore, 528 F.2d 957 (9 Cir.
1975), rehearing denied, Feb. 6, 1976, petition for cert.
filed, No. 75-1620, 44 U.S.L.W. 3645 (U.S. May 6,
1976), a case we do not consider to be truly relevant, but
that the issue here presented is sub judice in the First
Cireuit, John T. Clark & Son of Boston, Inc. v. William
Stockman, No. 75-1360, argued Jan. 5, 1976, and in the
Fifth Circuit. Given the importance of the question, the
number of courts of appeals endeavoring to find an
Department of Labor. 33 U.S.C. §921(b)(1); 20 C.F.R. § 801.103
(1975). Its three members are appointed by the Secretary of Labor,
and it is “authorized to hear and determine appeals raising a sub-
stantial question of law or fact taken by any party in interest from
decisions with respect to claims of employees under this chapter,”
made by the administrative law judges who hear LHWCA claims
in the first instance. 33 U.S.C. §§ 919(d), 921(b)(1) and (3) (as
amended). Prior to the 1972 amendments, there was no adminis-
trative review procedure for LHWCA claims; cases were heard in
the first instance by Deputy Commissioners and review was then
had in the United States district courts. 33 U.S.C. §921 (1970).
Under the 1972 amendments cases are heard by an administrative
law judge whose decisions are reviewed by the BRB, and ap-
peals lie to the court of appeals directly from final orders of the
BRB. 33 U.S.C. § 921(c).
5a
answer, and the divergence of opinion already mani-
fested, it seems unlikely that the opinion of any court of
appeals will be the last word to be said. In consequence
we shall not dwell on the long history of the problem of
affording appropriate remedies for longshoremen and
harbor workers against their employers which had its
inception in Southern Pacific Co. v. Jensen, 244 U.S. 205
(1917)—a history which is interestingly traced in Gil-
more & Black, The Law of Admiralty §§ 6-45 to -49 (2d
ed. 1975)—but will proceed directly to the cases in hand.
I. The 1972 Amendments
The situation that led to adoption of the 1972 Amend-
ments was described as follows in the portion of the
Senate Report headed “Need for the Bill,” S. Rep. No.
92-1125, 92d Cong., 2d Sess. 4-5 (1972):
Since 1946, due to a number of decisions by the
U.S. Supreme Court, it has been possible for an in-
jured longshoreman to avail himself of the benefits
of the Longshoremen’s and Harbor Workers’ Com-
pensation Act and to sue the owner of the ship on
which he was working for damages as a result of his
injury. The Supreme Court has ruled that such ship
owner, under the doctrine of seaworthiness, was
liable for damages caused by any injury regardless
of fault. In addition, shipping companies generally
have succeeded in recovering the damages for which
they are held liable to injured longshoremen from
the stevedore on theories of express or implied war-
ranty, thereby transferring their liability to the
stevedore company, the actual employer of the long-
shoremen.
The social costs of these law suits, the delays,
crowding of court calendars and the need to pay
for lawyers’ services have seldom resulted in a real
increase in actual benefits for injured workers.
6a
For a number of years representatives of the em-
ployees have attempted to have the benefit levels
under the Act raised so that injured workers would
be properly protected by the Act. At the same time,
employer groups indicated their willingness to in-
crease such payments but indicated they could do so
only if the Longshoremen’s and Harbor Workers’
Compensation Act were to again become the exclu-
sive remedy against the stevedore as had been in-
tended since its passage in 1927 until modified by
various Supreme Court decisions.
The bill reported by the committee meets these
objections by specifically eliminating suits against
vessels brought for injuries to longshoremen under
the doctrine of seaworthiness and outlawing indem-
nification actions and “hold harmless” or indemnity
agreements. It continues to allow suits against ves-
sels or other third parties for negligence. At the
same time it raises benefits to a level commensurate
with present day salaries and with the needs of in-
jured workers whose only support will be payments
under the Act.
In practical terms the bill was a trade-off. See Landon Vv.
Lief Hoegh and Co., Inc., 521 F.2d 756, 761-62 (2 Cir.
1975), cert. denied, 96 S.Ct. 783 (1976). Stevedores and
other employers were pushing for complete abolition of
the three-way damage action pessible under Seas Ship-
ping Co., Inc. v. Sieracki, 328 U.S. 85 (1946), which held
longshoremen and other harbor workers to be “seamen”
entitled to sue the ship for unseaworthiness, and Ryan
Stevedoring Co., Inc. Vv. Pan Atlantic S.S. Corp., 350
U.S. 124 (1956), which permitted the shipowner to seek
indemnity for any liability thus entailed from an injured
worker’s employer. This triangle in effect exposed the
employer (already liable for and often having paid the
limited benefits provided by the LHWCA) to an un-
limited liability to the employee for damages and to the
shipowner for its counsel fees in defending the employee’s
Ta
suit. The unions representing longshoremen and other
harbor workers, which for years had been seeking in-
creased benefits under the Act, opposed Congressional re-
peal of their Sieracki-created status as “seamen” in part
on the grounds that the LHWCA’s benefits were so low
that workers needed the additional protection of the “un-
seaworthiness” doctrine. The compromise between these
positions effected by the 1972 Amendments was this:
The Sieracki action for unseaworthiness was eliminated,
longshoremen in the future could sue the ship only for
negligence, and employers were immunized from indem-
nity suits by shipowners. 33 U.S.C. § 905(b). In return,
the workers were to secure increased benefits under
LHWCA and, what is here pertinent, an extension of
that statute’s coverage. Thus the Senate Committee said
that the principal purpose of the Amendments was “to
upgrade the benefits, extend coverage to protect addi-
tional workers, provide a specified cause of action for
damages against third parties, and to promulgate ad-
ministrative reforms,” Sen. Rep., supra, p. 1.
The change in the coverage section was dramatic.
Before amendment the first sentence of 31 U.S.C. § 903
(a) read:
Compensation shall be payable under this chapter
in respect of disability or death of an employee, but
only if the disability or death results from an in-
jury occurring upon the navigable waters of the
United States (including any dry dock) and if re-
covery for the disability or death through work-
men’s compensation proceedings may not validly be
provided by State law.
The Amendments altered this to read:
Compensation shall be payable under this chapter
in respect of disability or death of an employee but
only if the disability or death results from an in-
jury occurring upon the navigable waters of the
8a
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 build-
ing a vessel).
In place of the definition of “employee” previously con-
tained in § 902(3) as “not includ|ing| a master or mem-
ber 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,” the Amendments defined the
term as follows: “
The term “employee” means any person engaged
in maritime employment, including any longshore-
man or other person engaged in longshoring opera-
tions, and any harborworker including a ship re-
pairman, 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.
The definition of “employer,” § 904 (4)
(4) The term “employer” means an employer any
of whose employees are employed in maritime em-
ployment, in whole or in part, upon the navigable
= of the United States (including any dry
ock).
was modified by inserting after “navigable waters of the
United States” the expansion of that term by the paran-
thetical phrase in § 903.’
Thus, under the Amendments there are two tests for
coverage under the Act: a “situs” test requiring the
injury to occur on the “navigable waters” as now defined,
and a “status” test which requires that the employee be
2 The significance of this definition is that liability for compensa-
tion is predicated on being an “employer,” 33 U.S.C. § 904.
“engaged in maritime employment,” etc. While the situs
test has been liberalized, the creation of an employee sta-
tus test adds a new element to the coverage requirements.’
The problem with which we are here concerned arises
from Congress’ failure to supply any definition of two
terms in § 902(3)—“engaged in maritime employment”
and “any longshoreman or other person engaged in
longshoring operations.”
Il. The Facts
Two of the cases before us, relating to claimants
Blundo and Seaffidi, concern the loading or unloading
of containers; the other two, relating to claimants Del-
laventura and Caputo, involve loading of ordinary cargo
into consignees’ trucks on the pier.
(1) Blundo. Claimant Blundo was employed as a
“checker” by the International Terminal Operating Co.
(ITO).' He was injured while checking cargo being re-
moved from a container at the 19th Street pier in Brook-
lyn when he walked around a draft containing cargo to
mark it, slipped on some ice and fell. He was working
on the stringpiece within 30 to 40 feet of the water. The
container he was checking had been unloaded a few days
before at a different pier and then taken by a truckman
over city streets to the 19th Street pier where it was
opened by the United States Customs Office and then
stripped. The Administrative Law Judge (ALJ) found
that the 19th Street pier was not utilized by the employer
for the actual loading or unloading of vessels but rather
for the storage of commodities and for the “stripping,
* Formerly, if an employee was not expressly excluded, as, e.g.,
a crew member; his injury occurring upon the navigable waters
was compensable under the Act so long as his employer had “any
... employees ... employed in maritime employment, in whole or in
part....” 33 U.S.C. § 902(4) (1970).
*A “checker” checks the contents of a container carrying goods
for several consignees against the bills of lading or other records.
10a
or stuffing, i.e., loading or unloading of containers.”
The BRB affirmed his findings as to the employee’s status
and the situs of the accident and upheld a compensa-
tion award under the LHWCA.
(2) Seaffidi. Claimant Scaffidi was employed by Pitt-
ston Stevedoring Corp. as a “hustler” operator, a kind of
trucker who moves containers within a terminal. On
March 12, 1973, Seaffidi drove a hustler loaded with con-
tainers of cargo from the Columbia Street Pier in Brook-
lyn, New York, through some ten blocks of public streets
to Pier 12. On arriving at Pier 12 he backed the container
to a receiving platform on the dock in preparation for
loading the tontainer on to the ship. When the container
was opened, a large case fell out and injured him. The
BRB affirmed the findings of the ALJ on the ground that
the operator of a hustler used to transport containers
within a terminal is enaged in an essential step in the
overall process of loading cargo aboard a vessel, which
was maritime employment as contemplated in 33 US.C.
¢ 902(3). It found that the fact that the container had
been transported over public streets was irrelevant.
(3) Dellaventura. Claimant Dellaventura, employed
by Pittston Stevedoring Corporation as a “sorter,” was in-
jured on June 27, 1973 at Pier 20 of the Pouch Ter-
minal on Staten Island while helping to load a truck, he-
longing to a consignee, with coffee bags which had been
offloaded from the ship “CAMPECHE” on or about Feb-
ruary 16, 1973. Dellaventura sliped on some loose coffee
beans while inside the truck. At times Dellaventura’s re-
sponsibilities included going into the holds of ships to
assist in sorting and loading or off-loading cargo. The
accident occurred about 30 feet from the water’s edge
on the pier. The record affords no explanation for the
consignee’s 133-day delay in picking up the bags of cof-
fee beans, but the ALJ found that the pier contained no
warehouse facilities. The BRB affirmed his decision on
lla
the grounds set forth in Avvento v. Hellenic Lines, BRB
No. 74-153, 1 BRBS 174, 1975 A.M.C. 153 (Nov. 12,
1974), which held that “ ‘until cargo is delivered to a
trucker or other carrier who is to pick it up for further
trans-shipment, such cargo is in maritime commerce and
all employees engaged in its movement to that point are
engaged in maritime employment.’ ”
(4) Caputo. Claimant Caputo was usually employed as
“terminal labor” by Pittston Stevedoring Corp. When
there was no work available at Pittston, he would take a
“shape up” job as a longshoreman wherever it was avail-
able and on the day of the accident was working for
Northeast Marine Terminal Co., Inc. at their terminal
adjoining the water in Brooklyn. He was injured while
helping a cargo consignee’s truckdriver load boxes of
cheese, discharged from a vessel at least five days pre-
viously, inside the consignee’s truck; the injury occurred
while he was rolling a dolly loaded with the cheese on it
into the truck. Caputo and the employer stipulated that
the work he was doing when injured involved the same
risk as would obtain wherever and by whomsoever trucks
were loaded or unloaded with dollies. But the ALJ
found the stipulation lacked significance “in view of the
situs where the injury actually occurred.” The ALJ made
an award in his favor and the BRB concurred.
III. Motion to Dismiss Petitions in Dellaventura’s
Case as Untimely.
Dellaventura and the Director, Office of Workers’ Com-
pensation Programs, U.S. Dept of Labor, (OWCP) by
his attorney, the Solicitor of Labor, have moved to dis-
miss the petitions of the employer, Pittston Stevedoring
Corp., and its insurance carrier, The Home Insurance
Co., as untimely. We grant Dellaventura’s motion, there-
12a
by rendering it unnecessary to decide whether the Solici-
tor of Labor was entitled to make one.°
5 In the cases of Blundo and Caputo, petitioners named as a re-
spondent the Director, Office of Workers’ Compensation Programs
in the Department of Labor; the petitions in Dellaventura’s and
Scaffidi’s cases did not. The Director moved to amend the captions
im the Dellaventura case, apparently for the primary purpose of en-
abling him to make the motion to dismiss; he made no similar mo-
tion to amend the caption in Scaffidi’s case.
The issue whether the BRB should be a respondent in court of
appeals review of its awards under 33 U.S.C. § 921(c) was treated in
McCord v. Benefits Review Board, 514 F.2d 198 (D.C. Cir. 1975).
There the BRB moved to dismiss the petition as to it. Petitioner did
not oppose the motion and the court granted it, citing recent un-
reported dectsions of the Ninth Circuit. The court reasoned that
there was “sufficient adversity” between the claimant and the em-
ployer (or its insurance carrier) “to insure proper litigation with-
out participation by the Board,” that requiring the Board to par-
ticipate “would parallel requiring the District Court to appear and
defend its decision upon direct appeal” and that the presence of
the second comma in 33 U.S.C. § 921(c) which reads:
A copy of such petition shall be forthwith transmitted by the
clerk of the court, to the Board, and to the other parties, and
thereupon the Board shall file in the court the record in the
proceedings as provided in section 2112 of Title 28.
indicated an intention that the Board should not be a party to
the appeal. There were pending motions to substitute the Director,
Office of Workers’ Compensation Programs, U.S. Dept. of Labor
(OWCP), as a respondent which were not before the court of ap-
peals. In the /.T.0. case, supra, the Board moved to be dismissed
as a respondent and to have the Director substituted; the court
granted the first branch of the motion but denied the second, 529
F.2d at 1088-89.
With respect, we cannot subscribe to the view that Congress in-
tended to create what to us would seem a novel form of review of
federal administrative action in which no one representing the
Government would be a party. See F.R.App.P. 15(a) (“In each case
the agency should be named respondent.”). Prior to the 1972 Amend-
ments judicial review took the form of a suit for an injunction
in the district court against the deputy commissioner who made
the order (former § 921(b)); in the absence of evidence of Con-
gressional intent we find it hard to believe that, by providing in-
ternal review followed by an appeal to a court of appeals, Congress
meant to oust the Government from further participation as of
13a
right. Appearance as an amicus may not be good enough, since it
normally does not allow oral argument and never allows an appeal.
Neither the McCord nor the /.T.0. court discussed § 921a which
provides :
Attorneys appointed by the Secretary shall represent the Sec-
retary, the deputy commissioner, or the Board in any court
proceedings under section 921 of this title or other provisions
of this chapter except for proceedings in the Supreme Court of
the United States.
The existence of sufficient adversity between private parties has
not been thought to preclude the Government’s right to be a party
in many other sorts of review of federal administrative action.
The second comma, especially in a sentence with an inappropriate
first one, seems a slender reed; the “other parties” phrase, means
the other parties to the BRB review but does not rule out the BRB’s
being a party to review in the court of appeals. While Congress did
not spell matters out with the same specificity as in 28 U.S.C. § 2348,
we think it sufficiently indicated its intention that the BRP and
other parties to the proceeding before the BRB should be parties to
a review by a court of appeals under 33 U.S.C. § 921(¢) ; if the BRB
chooses to leave the defense of its order in a particular case to the
prevailing private party, it is free to do so.
The administrative regulations do not specify which branch of
the agency should be represented as respondent on appeal. 20 C.F.R.
§ 801.402 seems to contemplate that the BRB is the proper agency
respondent in court of appeals review, since it provides that “ex-
cept in proceedings in the Supreme Court” the representation of
the BRB is provided by the Solicitor of Labor. Moreover, § 921la
quoted above seems to contemplate that the BRB be represented in
court of appeals review. However, 20 C.F.R. § 801.2(a)(10) de-
fines “party” and “party in interest” to include the “Secretary or
his designee .... ” This would indicate that the Secretary of Labor
appeals. The Government’s position has been that the Director,
OWCP is the proper respondent. The OWCP is an administrative,
not a statutory, creation. See 20 C_F.R. §§ 1.1 et seq., and § 701.203.
And the Solicitor of Labor is authorized to appear and participate
on behalf of the Director, OWCP as an interested party before the
BRB. 20 C.F.R. § 702.333(b). However, in the section assigning
to the OWCP the responsibility for administering various programs,
including the LHWCA, the OWCP is given administrative authority
“except [for] 921 as it applies to the Benefits Review Board... .”
20 C.F.R. § 1.2(d).
Trying to make sense out of these regulations, we think that
while the Director, OWCP is a proper party before the ALJ or the
14a
The statute, 33 U.S.C. § 921(c), provides that a person
adversely affected or aggrieved by a final order of the
BRB may obtain review by the court of appeals for the
circuit where the injury occurred “by filing in such
court within sixty days following the issuance of such
Board order a written petition praying that the order be
modified or set aside.” The BRB’s order was issued on
October 9, 1975, but the petition for review was not filed
until February 5, 1976.
Petitioners’ basis for resisting the motion is as follows:
The BRB’s Rules and Regulations, 20 C.F.R. § 802.403
(b), provide that the original of any BRB decision shall
be filed with the Clerk of the Board, which was done here,
and that “[a] copy of the Board’s decision shall be sent
by certified mail or served personally on all parties to
the appeal and the Director.” The rule does not say when
this should be done. Apparently no such notice was sent
to the employer or the insurance carrier but the attorney
who represented both parties before the BRB and in this
court acknowledges that he received a copy within the
60-day period and does not deny that he advised his
clients.
Like 28 U.S.C. § 2344 and similar provisions in the
statutes for the review of orders of other agencies, 33
U.S.C. § 921(c) makes the time for seeking review start
to run from the entry of the agency’s order, even though
the agency is under a duty to give notice. See Willow
Crossing Dairy Farm v. Hardin, 327 F. Supp. 798 (W.D.
Pa. 1970) (where review section of Agricultural Adjust-
ment Act provided for filing of review petition within
BRB, see cases discussed in 3 Larson, Workmen's Compensation
Laws § 83.19, at n. 49.1 (1976 ed.), the BRB is the proper agency
respondent for review in the court of appeals, although the Solici-
tor of Labor could be designated to represent it. We deem it best
to defer resolution of this question to a case where decision on this
point is essential; perhaps in the meanwhile the Department will
tidy up its regulations.
15a
20 days of “entry” of judgment, word “entry” is to be
interpreted normally and petition filed September 28 to
review order of September 2 was not timely and did not
vest the court with jurisdiction even though counsel for
plaintiff did not receive notice of ruling until September
8). The BRB’s regulations count the 60-day period from
the date on which the decision is “filed,” 20 C.F.R.
$ 802.410." In the parallel situation of review of judg-
ments of district courts in civil cases Rule 4(a) of the
Federal Rules of Appellate Procedure likewise makes the
entry of judgment the critical date; F.R.Civ.P. 77(d) di-
rects the clerk to serve notice of the entry of 2 judgment
or order but expressly provides that “|]|ack of notice of
the entry by the clerk does not affect the time to appeal
or relieve or authorize the court to relieve a party for
failure to appeal within the time allowed, except as
permitted in Rule 4(a) of the Federal Rules of Appellate
Procedure,” namely, “upon a showing of excusable ne-
glect.”
We see no reason not to read 33 U.S.C. §921(c) as
meaning what it says. Cf. United States v. Michel, 282
U.S. 656 (1931); American Construction Co. V. United
States, 107 F. Supp. 858 (Ct. Cl. 1952), cert. denied, 345
U.S. 922 (1953). The policy requiring that appeals be
timely taken is so strong that ministerial failures by a
In the only case construing the statutory provisions for mail
notice to the parties of the Deputy Commissioner’s decision under
the old act, 33 U.S.C. § 919, the Deputy Commissioner’s first order
was apparently neither filed in his office nor mailed to the parties.
The court held, in response to the employer’s argument that a sec-
ond, more generous award was barred by the first award, that the
first order “did not take on the dignity of an effective award.”
American Mutual Liability Ins. Co. of Boston v. Lowe, 15 F. Supp.
906, 907 (D.N.J.), aff'd, 85 F.2d 625 (8 Cir. 1936). We believe
this case to be wholly distinguishable particularly since both opin-
ions rest primarily on the failure to file a signed order. 13 F.
Supp. at 907 (citing Howard v. Monahan, 33 F.2d 220 (S.D. Tex.
1929) ).
l6a
clerk cannot be allowed to overcome it. The Act, like many
other administrative review statutes, does not seem even
to encompass the “excusable neglect” escape hatch pro-
vided for untimely appeals from the district courts. But
even if it should be construed as doing so, this would be
a most inappropriate case for granting relief. The clerk
made the pardonable error of notifying the attorney
rather than the parties, exactly what a clerk of a district
court is directed to do, F.R.Civ.P. 5(b) and 77(d), and
the attorney offers no explanation for having failed to
file the petition within the allotted time.
IV. Motion to Dismiss Petition in Seaffidi’s Case As
Not»Presenting a Justiciable Controversy.
In the proceedings up through the decision of the ALJ,
the caption of this case named both Pittston and Gulf In-
surance Company, its insurance carrier, as respondents;
both were represented by the same attorney. After the
ALJ’s decision the insurance carrier paid the award and
chose not to contest it further. Pittston then engaged its
present attorney who altered the caption. Apparently the
claimant made no point before the BRB that the carrier’s
payment of the award mooted the case; he does now.
Despite the general rule that objections not raised before
an administrative body cannot be raised on review, we
must consider this one since it goes to our jurisdiction.
We see no basis on which a reversal of the BRB’s de-
cision would enable the insurance carrier to recover from
Scaffidi a payment the liability for which it chose not to
contest, and Pittston, which was invited to file a reply
brief on the issue, does not suggest one. Cf. Federal
Insurance Co. Vv. Detroit Fire & Marine Ins»rance Co.,
202 F. 645 (6 Cir.), cert. denied, 229 U.S. 620 (1913)
(insurer which paid its share of loss and failed to join
other subrogated insurers in third party suit held en-
titled to recover ratable share of damages won). Pittston
17a
claims instead that it is nonetheless a “person adversely
affected or aggrieved” by the BRB’s order, 33 US.C.
§ 921(c), since the award will adversely affect its experi-
ence rating and thus increase its future premiums. Cf.
Travelers Insurance Co. v. Belair, 284 F. Supp. 168 (D.
Mass. 1968).
Pittston’s contention that this interest affords it stand-
ing immediately encounters Gange Lumber Co. V. Rowley,
326 U.S. 295 (1945). The Court there held that the ap-
pellant-employer had failed to make a showing of sub-
stantial injury to any legally protected interest which
would entitle it to question the validity under the due
process clause of a state statute retroactively extending
the time period in which workmen’s compensation awards
could be modified. Under the state’s system, all awards
were paid out of a state insurance fund supported by em-
ployer contributions of “premiums.” Rejecting the em-
ployer’s argument that its future premium rates would
be adversely affected by the increased award, the Court
held that the effect of any one accident was too minimal
and its possible injury to the employer too speculative
to establish the justiciability of the case.’
The Gange decision, however, has been severely criti-
cized by Professor Davis. He notes that under the state
statutes the employer was permitted to appeal, and char-
acterizes the result as “unique,” “the extreme one of de-
nying the employer’s standing even though the statute
conferred such standing.” 3 Davis, Administrative Law
Treatise § 22.13, n.4 (1958). It may well be that under
the more liberal concepts of standing developed in such
7 Gange Lumber Co. was followed in Railway Express Agency V.
Kennedy, 189 F.2d 801 (7 Cir.), cert. denied, 342 U.S. 830 (1951)
(denying employer standing to challenge unemployment compensa-
tion payments to striking workers from federal fund). Cf. 2A
Larson, Workmen's Compensation Law § 77.30 (1976 ed.) (damage
action by employer against negligent third party for increased
premiums would lie).
18a
cases as Ass’n of Data Processing Service Organizations,
Inc. Vv. Camp, 397 U.S. 150 (1970), and Barlow v. Col-
lins, 397 U.S. 159 (1970), Gange Lumber Co. would not
be followed. However, even on the standing issue alone,
an overruling of Gange Lumber Co. would hardly carry
the day for Pittston on this record where it has submitted
nothing but conclusory assertions of adverse effect on
future premiums."
_ However all this may be, the liberalization of notions
as to what makes a person “adversely affected or ag-
grieved” does not eliminate the requirement that in order
for a controversy to be justiciable, the court must be able
to afford effective relief. See Simon v. Eastern Kentucky
Welfare Rights Org., —— U.S. ——, 44 U.S.L.W. 4724
(June 1, 1976); Warth v. Seldin, 422 U.S. 490, 504-05
(1975); North Carolina v. Rice, 404 U.S. 244, 246
(1971) ; Local No. 8-6, Oil, Chemical & Atomic Workers
Internat’l Union, AFL-CIO v. Missouri, 361 U.S. 363,
367 (1960) ; St. Pierre v. United States, 319 U.S. 41, 42
(1943) ; McKee v. Turner, 491 F.2d 1106 (9 Cir. 1974).
As indicated, Pittston has not claimed that Scaffidi will
not retain his award even if we should reverse the BRB;
what it is asking is simply an advisory opinion that
the award should not have been made.’ We do not doubt
* There is no proof that payment of this one award would affect
the premiums of such a large employer as Pittston. Moreover, we
are not told whether the arrangements between Pittston and its
insurance carrier allow the latter to take advantage of an award
made without Pittston’s consent in determining Pittston’s ratings
and, if so, whether a reversal by us would change matters.
* Jaabeck v. Theodore A. Crane’s Sons Co., 238 N.Y. 314, 318
(1924), cited by the petitioner in its reply brief, is wholly inap-
posite. A state workmen’s compensation board had entered an
award against both the employer and its insurer, one of the ques-
tions determined by the board being that of the insurer's liability
under the insurance contract. The Appellate Division affirmed the
award as to the employer but reversed as to the insurer on the
ground that the policy did not cover the risk. The employer ap-
pealed to the Court of Appeals, which reversed the Appellate Divi-
19a
that where insurance only partially covers the liability,
the employer may appeal from a judgment even though
the insurer has paid its part. See Moore v. Columbia
Casualty Co., 174 F. Supp. 566 (S.D. Ill. 1959) ; Queen
Ins. Co. of America v. Meyer Milling Co., 43 F.2d 885
(8 Cir. 1930). But where the issue of liability is deter-
mined against an insured and its insurer, and the insurer
pays the damages in full even without the consent of the
insured and chooses not to appeal, the insured cannot
appeal from the judgment against him. Ross Vv. Stricker,
153 Ohio St. 153, 91 N.E.2d 18 (1950), discussed in 19
Couch on Insurance 2d § 78.228. In short, as the Su-
preme Court has said, albeit in a different context, once
an insurer “has paid an entire loss suffered by the in-
sured, it is the only real party in interest and must sue
in its own name.” United States v. Aetna Casualty &
Surety Co., 338 U.S. 366, 380-81 (1949) ; Link Aviation,
Inc. v. Downs, 325 F.2d 613 (D.C. Cir. 1963). See also
Zauderer v. Continental Casualty Co., 140 F.2d 211 (2
Cir. 1944). This seems a reasonable application of the ~—
general rule that a party who has no interest in a fund
cannot appeal from an order disbursing the fund. Sea-
board Surety Co. v. United States, 306 F.2d 855 (9 Cir.
1962), and cases cited at 306 F.2d at 859, n.6. We
therefore dismiss Pittston’s petition.’
sion with respect to the insurer, affirming in full the order of the
State Industrial Board. The employer was clearly aggrieved by
the order of the Appellate Division and the Court of Appeals
gave effective relief by reinstating the order of the State Industrial
Board.
1° An additional reason for this conclusion is that once the insur-
ance carrier has paid, without preserving its right to recover the
payment by taking an appeal, the case lacks the necessary quality
of adversariness. We see no reason why a person in Scaffidi’s posi-
tion should bother to defend against a petition to review or why the
BRB or the Director should spend the Government’s resources in
such a case, even though that was done here.
20a
V. Interpretation of the Statute
With these preliminaries out of the way, we can now
undertake our main task—the interpretation of the cov-
erage clauses of the 1972 Amendments.
Admitting as they must that the Amendments worked
some extension of coverage, petitioners and the National
Association of Stevedores (NAS), as amicus curiae, would
limit this to factual situations generally comparable to
those in Nacirema Operating Co., Inc. v. Johnson, 396
U.S. 212 (1969). There the Court held that the Act,
as it then stood, did not cover longshoremen killed or in-
jured on a pier while attaching cargo from railroad cars
to ships’ oranes for removal to the ships, although cov-
erage presumably would have existed had they been
hurled into the water, Marine Stevedoring .Corp. v. Oost-
ing, 238 F. Supp. 78 (E.D. Va. 1965), aff'd, 398 F.2d
900 (4 Cir. 1968) (en bane),"' or injured on deck while
performing part of the same operation, Calbeck v. Trav-
elers Ins. Co., 370 U.S. 114 (1962). Resting its decision
solely on statutory grounds, the Court said that “ltihe
“' Nacirema Operating Co., Inc., supra, reversed the en banc de-
cision of the Fourth Circuit in Marine Stevedoring Corp., supra.
Four cases were before the court of appeals in the consolidated
appeal; in only three cases were petitions for certiorari filed and
granted. Those three cases involved employees injured on the pier
as described above whom the Deputy Commissioner had ruled were
not covered by the LHWCA. The district courts had affirmed the
Deputy Commissioners’ denial of awards, and were reversed by
the Fourth Circuit. In the fourth case (the title case in the court
of appeals), the employee, also on the pier, had been injured while
lifting a cable off the stern bollard of a vessel when it suddenly
straightened, catapulting him into a river where he drowned. The
Deputy Commissioner had found that the employee was covered
under the Act, his award was affirmed by the district court and by
the court of appeals, and it was not before the Supreme Court in
Nacirema. Mr. Justice Douglas noted in his dissent that “[i]t is
incongruous . . . that in an accident on a pier over navigable
waters coverage of the Act depends on where the body falls after
the accident has happened.” 396 U.S. at 225.
2la
invitation to move” the line dividing the coverage of
LHWCA “landward must be addressed to Congress, not
to this Court,” 396 U.S. at 224. Petitioners argue that
the BRB’s rationale in effect reads the “status” require-
ment out of the Act by affording coverage to any long-
shoreman injured on a pier no matter what he is actu-
ally doing when injured.
The respondent employees, the International Longshore-
men’s Association (ILA), as amicus curiae, and the
Solicitor of Labor (see note 5, supra) contend that the
extension was much more substantial. Their position is
that the process of unloading a vessel continues until the
cargo is deposited on the consignee’s truck on the pier
(or begins, in the case of loading, when the goods are
being removed from the delivery truck), and that any-
one physically participating in this process is engaged in
“maritime employment.” We disagree with petitioners,
without having to decide whether we would go to the full
extent urged by their adversaries.
A.
We begin our analysis by remarking on the unsatis-
factory state of the records before us, even if we include
for this purpose the two petitions which we have dis-
missed. When cases of this nature began coming to the
BRB shortly after the enactment of the Amendments, it
should have realized that it was faced with a major task
of statutory construction in determining what consti-
tutes “maritime employment” or being a “longshoreman
or other person engaged in longshoring operations’—
which task could be performed satisfactorily only in the
light of an extensive factual background detailing the
structure of work on the various piers of this country.
The following are illustrative of facts we would like to
know but on which these records shed little or no light,
even as regards the port of New York, let alone the rest
22a
of the nation. Dues one gang normally take cargo off or
on the ship while another is responsible for transporta-
tion beyond the “point of rest”? Does the same gang al-
ways, sometimes, or often perform both jobs? Is all work
on the pier normally conducted by a single employer or
is there a division between the stevedore and the “termi-
nal operator”? Even if there is only one employer, does
he segregate the employees in their work assignments,
by having different collective bargaining agreements or
otherwise? Are separate charges made for services be-
yond the “point of rest” and, if so, for what? Does the
“point of rest” shift about on the same pier? Just what is
the normal practice for stripping and stuffing containers
with goods belonging to different owners or destined to
different consignees? Is this work normally done on the
pier or in warehouses not adjoining navigable waters?
What determines the choices? Does the hazardous nature
of the employment stop at the point of rest or continue so
long as the cargo is on the pier? Do the hazards change
in frequency or degree as the longshoreman moves away
from the water? The consolidation of several cases pre-
senting different factual situations in a single large pro-
ceeding might have enabled the BRB to make meaning-
ful distinctions. Instead of developing such a record and
laying down guidelines for the ALJ’s, the BRB has
handled each case on an individual basis," and without
establishing any record support for the interpretive rules
announced therein.
If we were sitting as a court of last resort, we would
remand these cases to the BRB on our own motion with
** We were told at argument that in the /.T.0. case the NAS
tendered to the BRB a “Brandeis brief” intended to give the BRB
some of the general information we have mentioned, outlining the
division of labor in 45 ports in the United States: that the tender
was rejected on the objection of the Solicitor on behalf of the Di-
rector, OWCP; but that the document was discussed at oral argu-
ment in the Fourth Circuit and has been referred to in other deci-
sions of the BRB. We have not had even that much assistance.
23a
directions to cause such a hearing to be held. But with
the cases in their present posture in this circuit and
others, we think it more he!pful for us to state our views
on what is now before us.”
B.
Perhaps the most useful way to approach the issue is
to begin by discussing certain arguments we have not
found to be particularly helpful.
(1) The “presumption” of coverage, 33 U.S.C. § 920.
The claimants, the Solicitor of Labor, and the ILA place
great reliance on a provision in the LHWCA as orig-
inally adopted in 1927, 33 U.S.C. § 920, and still in
effect, that four things shall be presumed in the absence
of substantial evidence to the contrary. One of these is
“(t)hat the claim comes within the provisions of this
chapter.” 33 U.S.C. § 920(a). They contend that if the
meaning of the new coverage provision, 33 U.S.C. § 903,
is in any way doubtful, this presumption requires the
doubt to be resolved in favor of coverage. We do not
think this was what Congress had in mind; the very fact
that the presumption can be overcome by substantial
contrary evidence indicates its inapplicability to an in-
terpretive question of general import such as this. See
Crowell v. Benson, 285 U.S. 22, 64-65 (1932).
Even in cases holding that the accordion-like phrase
“arising out of and in the course of employment,” 33
U.S.C. § 902(2), could be widely stretched, the Court has
done little more than mention the presumption, Cardillo
v. Liberty Mutual Ins. Co., 330 U.S. 469, 474 (1947);
O'Keeffe v. Smith, Hinchman & Grylis Associates, Inc.,
380 U.S. 359, 361 (1965) (per curiam), resting its deci-
sion mainly on the principle with respect to the scope of
13 If one or more of the other circuits seized of this problem should
order such a remand, we would entertain a petition for rehearing
to enable us to do the same.
24a
review discussed below. In O’Leary v. Brown-Pacific-
Mazon, Inc., 340 U.S. 504 (1951), the Court did not rely
on the presumption at all, even in the face of a strong
dissent. The Court’s decisions dealing with questions of
coverage of the sort presented here will be searched in
vain for any mention of the presumption, see, e.g., Parker
v. Motor Boat Sales, Inc., 314 U.S. 244 (1941); Norton
v. Warner Co., 321 U.S. 565 (1944) ; Calbeck v. Travelers
Ins. Co., supra, 370 U.S. 114 (1962); Nacirema Operat-
ing Co., Inc., Ine. Vv. Johnson, supra, 396 U.S. 224
(1969) ,** although in Norton and Nacirema coverage was
rejected. The cases in this court, Michigan Mutual Lia-
bility Co. v. Arrien, 344 F.2d 640, 645-46 (2 Cir.), cert.
denied, 382 U.S. 835 (1965), and Overseas African Con-
struction Corp. V. McMullen, 500 F.2d 1291, 1296 (2 Cir.
1974), likewise treat the presumption as merely an em-
bodiment of the “rule . . . that so long as any reasonable
inference from the facts supports jurisdiction under the
statutory presumption that jurisdiction may be found.”
500 F.2d at 1296. Here the question is not whether a
line established by Congress is sufficiently elastic to in-
clude the claimant; the main issue is whether Congress
placed the line at the “point of rest” or much further
landward. Only if we have made the latter basic deci-
sion might the presumption come into play in ruling on
cases near the border. See Davis v. Department of Labor,
317 U.S. 249 (1942).
(2) “Deference” to the BRB. We likewise see no merit
in the contention of claimants and the Solicitor of Labor
that we are confined in our decision because of the def-
In Davis v. Department of Labor, 317 U.S. 249, 256 (1942),
the Court noted that with respect to the largely “factual questions”
relating to whether an employee injured within the “twilight zone”
of federal jurisdiction established by the Court should be compen-
sated under state or federal law, “presumptive weight” should be
given to the findings of the federal or state administrator of the
respective program, and relied in part on § 920(a).
25a
erence owed to the BRB. We agree that the standard
of review we must apply is that factual findings of the
BRB are conclusive if supported by substantial evidence
in the record considered as a whole since, as held in
Potenza v. United Terminals, Inc., 524 F.2d 1136 (2
Cir. 1975), it is of no moment that 33 U.S.C. § 921(b)
(3) while applying this standard to the BRB’s review
of the ALJ’s findings of fact does not expressly extend
it to review in the court of appeals. But we are still con-
fronted with the ever troubling question whether the de-
termination at issue, namely, whether the 1972 Amend-
ments should be so interpreted as to include these claim-
ants, is the kind of question which justifies or requires
judicial deference.
We think it is time to recognize, in line with Profes-
sor Kenneth Culp Davis’ brilliant discussion, 4 Adminis-
trative Law Treatise §§ 30.01-.09 and the corresponding
sections in the 1970 Supplement, that there are two lines
of Supreme Court decisions on this subject which are
analytically in conflict, with the result that a court of
appeal; must choose the one it deems more appropriate
for the case at hand.’ Leading cases supporting the
view that great deference must be given to the decisions
of an administrative agency applying a statute to the
facts and that such decisions can be reversed only if
15 Our discussion of the Court’s ambivalence with respect to def-
erence is not to be read as dealing with two problems quite different
from that here presented. One concerns an agency’s exercise of
power to formulate substantive rules, where the scope is wide, see,
e.g., American Telephone & Telegraph Co. v. United States, 299
U.S. 232 (1936); Addison v. Holly Hill Fruit Products, Inc., 322
U.S. 607 (1944), and the rules once issued, even if only in the form
of guidelines, are “entitled to great deference,” Griggs v. Duke
Power Co., 401 U.S. 424, 433-34 (1971); Albemarle Paper Co. v.
Moody, 422 U.S. 405, 430-36 (1975). The other concerns an agency’s
construction of its own rules, see, e.g., Bowles v. Seminole Rock &
Sand Co., 325 U.S. 410, 413-14 (1945); Udall v. Tallman, 380 U.S.
1, 16-17 (1965); TSC Industries, Inc. v. Northway, Inc., —— U.S.
——, —— n.10 (1976), 44 L.W. 4852, 4855 n.10 (1976).
26a
without rational basis are Rochester Telephone Corp. V.
United States, 307 U.S. 125, 146 (1939) ; Gray v. Powell,
314 U.S. 402, 411-12 (1941); and NLRB v. Hearst Pub-
lications, Inc., 322 U.S. 111, 1380-31 (1944). The rationale
of these decisions was applied in the three “arising out
of and in the course of employment” Supreme Court
cases under the LHWCA—Cardillo, O’Leary and O’ Keeffe,
cited above. Indeed, the Court seems to have rejected the
findings of the LHWCA’s Deputy Commissioners only
once since the statute was enacted, Norton v. Warner Co.,
supra, 321 U.S. 565. However, there is an impressive
body of law sanctioning free substitution of judicial for
administrative judgment when the question involves the
meaning ‘of a statutory term. Illustrative cases are Of-
fice Employees International Union, Local No. 11, AFL-
CIO v. NLRB, 353 U.S. 313 (1957), and Davies Ware-
house Co. v. Bowles, 321 U.S. 144, 150 (1944). In one
of its most recent decisions on the subject, Morton v.
Ruiz, 415 U.S. 199, 237 (1974), the Court held that “In
order for an agency interpretation to be granted def-
erence, it must be consistent with the congressional pur-
pose”; this very nearly eliminates the “deference” prin-
ciple as regards statutory construction altogether since
if the agency’s determination is found by a court to be
consistent with the congressional purpose, it presumably
would be affirmed on that ground without any need for
deference.
There are several other reasons not to rest decision
on the “deference” approach in these cases. One is that
unlike the F.C.C. in the Rochester Telephone case, the
Bituminous Coal Division of the Department of the In-
terior in Gray v. Powell, or the NLRB in the Hearst case,
the BRB is not a policy making but entirely an umpiring
agency. When Congress has charged an agency with the
duty to make and implement a national policy, it is
more likely that Congress intended the agency to have
27a
some flexibility, free from judicial intrusion, in inter-
preting the Congressional grant. Compare Rochester
Telephone Corp. v. United States, supra, 307 U.S. at 146;
Permian Basin Area Rate Cases, 390 U.S. 747, 767
(1968). A second factor is the way in which the agency
has gone about its job. As suggested above, we would be
much more inclined to defer to a considered judgment of
the BRB rendered on a full record than to this series of
short opinions on isolated facts which contain no in-depth
study of the problem. A somewhat related point is that
although the BRB’s decisions have been “consistent and
contemporaneous,” the issue arose almost immediately
after the 1972 Amendments became effective at a time
when the BRB had little experience in the administration
of the Act; yet its initial decisions, surely not the result
of any great expertise, became the basis for all the
others. “{|A]n agency may not bootstrap itself into an
area in which it has no jurisdiction by repeatedly violat-
ing its statutory mandate.” FMC v. Seatrain Lines, Inc.,
411 U.S. 726, 745 (1973). Finally, this is a case where
understanding of the statute depends in no smal] measure
on prior judicial decisions and legislative history—sub-
jects on which a court has a greater competence than
the BRB. We therefore reject the argument that the
BRB’s decisions in these cases must be affirmed if they
are rational but wrong.
(3) Other definitions. We likewise give little weight to
arguments made on both sides which are based on defini-
tions of “longshoreman” or maritime employment or con-
tracts formulated in different contexts and for different
purposes. The ILA relies on Congress’ approval, Act of
Aug. 12, 1953, ch. 407, 67 Stat. 541, of definitions (re-
produced in the margin)’ in a compact between New
1 See ILA Amicus brief at 5-6 n.1. The definitions in the Bi-State
Compact can be found at § 9806 of McKinney’s Unconsolidated New
York Laws and § 32:23-6 of N.J.S.A.
[Footnote continued on page 28a]
28a
York and New Jersey creating the bi-state Waterfront
Commission. To assume that the 1972 Congress had in
mind this action of its predecessor of 1953 is to attribute
a degree of acumen few Congressmen would claim. Be-
yond that, the purposes of the two enactments were quite
different; it is for that reason that paragraph (1) of
the Waterfront Commission Act includes persons, notably
clerical workers, clearly not embraced under the most
liberal construction of the 1972 Amendments.
On the other hand, a narrow definition of “longshoring
operations” ' formulated by the Secretary of Labor in
76 [Continued]
“Pier” shall include any wharf, pier, dock or quay.
“Other waterfront terminal” shall include any warehouse,
depot or other terminal (other than a pier) which is located
within one thousand yards of any pier in the Port of New
York district and which is used for waterborne freight in
whole or substantial part.
“Longshoreman” shall mean a natural person, other than a
hiring agent, who is employed for work at a pier or other water-
front terminal, either by a carrier of freight by water or by
a stevedore
(a) physically to move waterborne freight on vessels
berthed at piers, on piers or at other waterfront terminals,
or
(b) to engage in direct and immediate checking of any
such freight or of the custodial accounting therefor or in
the recording or tabulation of the hours worked at piers
or other waterfront terminals by natural persons employed
by carriers of freight by water or stevedores ... .
“Stevedore” shall mean a contractor (not including an em-
ployee) engaged for compensation pursuant to a contract or
arrangement with a carrier of freight by water, in moving
waterborne freight carried or consigned for carriage by such
carrier on vessels of such carrier berthed at piers, on piers at
which such vessels are berthed or at other waterfront termi-
nals. bs
7 * * * the loading, unloading, moving or handling of cargo, ships
stores, gear, etc., into, in, on, or out of any vessel on the nav-
igable waters of the United States.
25 Fed. Reg. 1566 (1960), 29 C.F.R. 9.3(i).
29a
1960 as part of safety regulations issued in respect of
“all employments covered by this chapter,” 33 U.S.C.
§941(a), is likewise not dispositive of the meaning of
the words used in the Amendments since under the old
statute covered employment was limited to injuries oc- |
curring “upon the navigable waters of the United Staies
(including {only| any drydock).” And despite the defini-
tion of “carriage of goods” as covering “the period from
the time when the goods are loaded on to the time when
they are discharged from the ship” contained in the
Carriage of Goods by Sea Act (COGSA), 46 U.S.C.
$ 1301(e), we have held that the contract of carriage, ob-
viously a maritime contract, persists after unloading
and that the carrier remains liable, not as a carrier but
as a bailee, until it delivers the cargo to the consignee or
places it in a public dock or warehouse. David Crystal,
Inc. v. Cunard Steamship Co., 339 F.2d 295, 298 (2 Cir.
1964), cert. denied, 380 U.S. 976 (1965); Leather’s
Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800, 811-12 (2
Cir. 1971) ; Cameco, Inc. v. S.S. American Legion Lines,
514 F.2d 1291, 1295-96 (2 Cir. 1974).
(4) Liberal construction of remedial legislation. There
is more force in the contention of the claimants and the
Solicitor that a broad reading of the 1972 Amendments
is required by the oft-iterated principle that remedial
legislation should be construed liberally. The Supreme
_Court said, as to this very statute, although in a quite
different context, Voris v. EFikel, 346 U.S. 328, 333
(1953) :
This Act must be liberally construed in conform-
ance with its purpose, and in a way which avoids
harsh and incongruous results.
Petitioners do not altogether overcome this point by
arguing that a statute must be construed with reference
to the mischief intended to be overcome, see Heydon’s
30a
Case, 3 Co. Rep. 7a, 76 Eng. Rep. 637 (1584), and that
all that Congress intended to “remedy” was the unjust
result of Nacirema Operating Co. v. Johnson, supra, 396
U.S. 212, by accepting the invitation which, pursuant
to Mr. Justice White’s suggestion, the unions extended
to it." The statutory language can fairly be read to do
more than that and thus the liberality principle tends in
favor of such a reading.
C.
With this background we address ourselves, at long
last, to the words of the statute with the aid of the iegis-
lative history. There is no question that claimants met
the situs test of § 903(a),"’ and concededly all worked
** The argument, in fact, flounders on a number of points. The
invitation issued in Nacirema was broadly phrased:
There is much to be said for uniform treatment of longshore-
men injured while loading or unloading a ship. But even con-
struing the Extension Act to amend the Longshoremen’s Act
would not effect this result, since longshoremen injured on a
pier by pier-based equipment would still remain outside the
Act. And construing the Longshoremen’s Act to coincide with
the limits of admiralty jurisdiction—whatever they may be and
however they may change—simply replaces one line with an-
other whose uncertain contours can only perpetuate on the land-
ward side of the Jensen line, the same confusion that previ-
ously existed on the seaward side. While we have no doubt
that Congress had the power to choose either of these paths
in defining the coverage of its compensation remedy, the plain
fact is that it chose instead the line in Jensen separating water
from land at the edge of the pier. The invitation to move that
line landward must be addressed to Congress, not to this Court.
396 U.S. at 223-24. The Court contemplated at least two possibili-
ties: an extension of the LHWCA to cover longshoremen injured
on a pier “while loading or unloading a ship,” or an extension to
“coincide with the limits of admiralty jurisdiction.” In the absence
of clarifying legislative history, we would have no idea which set
of evils referred to in Nacirema Congress was endeavoring to over-
come.
**In the Blundo case the petitioner, I.T.0. makes a halfhearted
argument that Blundo was not injured on the navigable waters with-
in the expanded definition because the 19th Street pier on which he
3la
for covered “employers” under the Act; the question is
whether each—now Blundo and Caputo—was a “person
engaged in maritime employment, including any long-
shoreman or other person engaged in longshoring opera-
tions... .” § 902(3).”
If there were any doubt on the face of the statute,
the legislative history makes clear that § 902(3), as
here relevant, is to be construed no differently than if it
said “any longshoreman or other person engaged in
longshoring activity or engaged in other maritime em-
ployment.” Cf. Argosy Limited v. Hennigan, 404 F.2d
14, 20 (5 Cir. 1968); United States v. Gertz, 249 F.2d
662, 666 (9 Cir. 1957). The Senate Committee on Labor
was injured was not used for the loading or unloading of vessels.
This argument flies in the face of the statute, which reads “. . . in-
cluding any adjoining pier . . . or other adjoining area customarily
used by an employer in loading, unloading, repairing, or building a
vessel.” (Emphasis added.) It would seem that any pier next to the
water is included within the situs definition. Accord, 1.7.0. Corp.
of Baltimore v. Adkins, supra, 529 F.2d at 1083-84. The testimony
before the ALJ established that Blundo was injured at one of two
“finger” piers which jutted into the water from the terminal. The
entire terminal adjoined the water and was enclosed by a single
gate. The finger pier at 21st Street was used for vessels; the finger
pier at 19th Street was used to load and unload containers. Blundo
was clearly on a “pier” and a “terminal” adjoining the water, a
part of which was used for loading and unloading vessels. This is
sufficient.
2° Judge Craven, dissenting from the panel opinion in /.T.0., ad-
vanced the argument, although he did not base his conclusion on it,
that this phrasing might make the inquiry too narrow, since § 902
(3) also includes “any harborworker,” 529 F.2d at 1090 n.3. He
cited the statement in 1 Norris, The Law of Maritime Personal In-
juries §3 (3d ed. 1975), that the longshoreman is only “[f]irst in
the catalogue of harbor workers.” Arguably, however, Congress
intended “harbor workers” to refer only to persons similar to those
specifically described (“any harborworker including a ship repair-
man, shipbuilder, and shipbreaker”) and not to persons concerned
with the movement of cargo. But see Norris, supra, §5. Like
Judge Craven we find it unnecessary to decide the point.
32a
& Public Welfare stated, Sen. Rep. No. 92-1125, 92d
Cong. 2d Sess., at 13:
It is apparent that if the Federal benefit structure
embodied in Committee bill is enacted, there would
be a substantial disparity in benefits payable to a
permanently disabled longshoreman, depending on
which side of the water’s edge the accident occurred,
if State laws are permitted to continue to apply to
injuries occurring on land. It is also to be noted that
with the advent of modern cargo handling tech-
niques, such as containerization and the use of
LASH-type vessels, more of the longshoreman’s work
is performed on land than heretofore.
The Committee believes that the compensation pay-
able to a longshoreman or a ship repairman or
builder should not depend on the fortuitous circum-
stance 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 employ-
ment (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 ad-
joining 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.
The House Compiittee Report, No. 92-1441, 92d Cong.
2d Sess. contained identical language.
Secondly, and more important, Congress perceived a
need to provide expressly for coverage for “any long-
shoreman” in addition to what it had established for a
person engaged in “longshoring operations.” A “long-
shoreman” may thus be covered at some times even when
he is not engaged in traditional longshoring activity.
This alone is sufficient to condemn the “point of rest”
33a
doctrine. Petitioners concede that persons engaged in
moving unloaded cargo to its first point of rest or
moving cargo to be loaded from its last point of rest
are engaged in “longshoring operations.” If they alone
were to be covered, there was no need to provide also
for “any longshoreman.”
What then did Congress mean by that phrase? Obvi-
ously it is not enough that a claimant calls himself a
longshoreman or that a longshoreman’s union in a par-
ticular port has forced employers to hire its members for
such unlongshoreman-like positions as clerks or guards.
But see Weyerhaeuser v. Gilmore, supra, 528 F.2d at
962.
The reports of the Senate and House committees go
a long way toward supplying an answer. Immediately
after the two paragraphs quoted above came the follow-
ing:
The intent of the Committee is to permit a uni-
form compensation system to apply to employees
who would otherwise be covered by this Act for part
of their activity. To take a typical example, cargo,
whether in break bulk or containerized form, is typ-
ically unloaded from the ship and immediately trans-
ported to a storage or holding area on the pier,
wharf, or terminal adjoining navigable waters. The
employees who perform this work would be covered
under the bill for injuries sustained by them over
the navigable waters or on the adjoining land area.
The Committee does not intend to cover employees
who are not engaged in loading, unloading, repair-
ing, or building a vessel, just because they are in-
jured in an area adjoining navigable waters used
for such activity. Thus, employees whose responsi-
bility is only to pick up stored cargo for further
trans-shipment would not be covered, nor would
purely clerical employees whose jobs do not require
them to participate in the loading or unloading of
34a
cargo. However, checkers, for example, who are di-
rectly involved in the loading or unloading functions
are covered by the new amendment. Likewise the
Committee has no intention of extending coverage
under the Act to individuals who are not employed
by a person who is an employer, i.e. a person at least
some of whose employees are engaged, in whole or
in part in some form of maritime employment. Thus,
an individual employed by a person none of whose
employees work. in whole or in part, on navigable
waters, is not covered even if injured on a pier ad-
joining navigable waters.
Two conclusions emerge from this with seeming cer-
tainty: One is that Congress was concerned about “the
advent of modern cargo-handling techniques, such as con-
tainerization and the use of LASH-type vessels,” new
facts of life on the waterfront which, as this court noted
in Intercontinental Container Transport Corp. v. New
York Shipping Ass'n, 426 F.2d 884, 886 (2 Cir. 1970),
mean that a good deal more of the longshoreman’s tradi-
tional jobs are now performed on shore. Stripping a con-
tainer of goods destined to different consignees is the func-
tional equivalent of sorting cargo discharged from a ship;
stuffing a container is part of the loading of the ship
even though it is performed on shore and not in the
ship’s cargo holds, Congress intended to cover men en-
gaged in these activities if they met the situs test con-
tained in the Act—irrespective of the employee’s position
vis-a-vis a “point of rest.” The committees said expressly
that “checkers, for example, who are directly involved
in the loading or unloading functions are covered by the
new amendment.” Congress did not say they were cov-
ered only if they “unloaded the container at the stop
where a crane had first deposited the container or loaded
it at a place on the water’s edge; one of the advantages
of containers is that they permit loading or unloading to
be done at less congested locations. It sufficed for cover-
35a
age if an accident arising from the stripping or stuffing
of containers occurs at a place within the situs test. One
answer to petitioners’ argument that stuffing or stripping
a container on a pier is no different from doing the same
job a mile away is that Congress may have doubted its
power, under the admiralty clause of Article III, to go
further than it did. This would decide Blundo’s case if
he had been “checking” the container at the pier where
it was first deposited even if it had been moved several
times. We fail to perceive any significant difference be-
cause, for the convenience of someone, it had been moved
to another pier. The cargo had not yet been delivered to
the consignee; the unloading process still had not been
completed.”
The second conclusion is that Congress was concerned
with providing uniformity of coverage for persons en-
gaged in the loading or unloading functions on the piers.
It wished to minimize the occasions when longshoremen
and other harbor workers would be walking from the
liberalized benefits of LHWCA to the much lower ones
provided by state compensation laws.” Petitioners argue
21 As many admiralty cases have decided, in construing other
doctrines of maritime law, a realistic view of the loading or unload-
ing process recognizes that it does not stop as soon as the cargo
first hits the pier on being removed from a vessel, nor does it begin
only when the cargo stands on the pier next to the vessel on which
it is about to be loaded. See Victory Carriers, Inc. v. Law, 404 US.
202, 214 at n.14 (1971), rev'g on other grounds Law vy. Victory
Carriers, Inc., 432 F.2d 376 (5 Cir. 1970). Frequently large gangs
of longshoremen, dozens of men, are assigned different tasks in a
continuous process which moves cargo off a vessel ultimately to a
warehouse or storage area at the far end of the pier or terminal.
Garrett Vv. Gutzeit, 491 F.2d 228 (4 Cir. 1974).
22 Joseph Leonard, Safety Director of the ILA, in speaking to
the House Committee about the former coverage provisions, asked,
“What do we do, cut ourselves in half?” Hearings on H.R. 247, H.R.
2505, H.R. 12006, and H.R. 15023 ( Longshoremen’s & Harbor Work-
er’s Compensation Act Amendments of 1972), before the Select
Subcomm. on Labor of the House Comm. on Educ. & Labor, 92d
Cong., 2d Sess., 297.
36a
that Congress was concerned with providing uniformity
wharf, or terminal adjoining navigable waters.” But
the committees stated their intention more broadly —“to
permit a uniform compensation system to apply to em-
ployees who would otherwise be covered by this Act for
variety of jobs on the pier, on both sides of the “point of
rest,” including going on vessels, Also we would not
*° Congress also expressed interest in extending federal coverage
to as many longshoremen as possible to avoid the “disparity in
benefits payable . . . for the same type of injury depending on .. .
in which State the accident occurs.” Senate Committee Report,
supra, at 12.
37a
regard the cargo as “stored” within the committees’ mean-
ing simply because the consignee had delayed five days
in picking it up.** The question whether he was engaged
in loading or unloading (here unloading) is closer. If his
injury had occurred while he was moving the boxes of
cheese from a previous position on the pier to the con-
signee’s trucks, he clearly would have been engaged in
“unloading,” in the way that term is used in ordinary
speech. That being so, it would be wholly artificial to
draw a distinction because his injury occurred while he
was inside the consignee’s truck. See note 21, supra. To
be sure, the carrier would probably have fulfilled its legal
duty if it had instructed the stevedores simply to place
cargo alongside consignees’ trucks and leave the loading
of the trucks to them. But, so far as we can gather from
this meagre record, that is not the life of the waterfront.
The driver needs help in loading or unloading his truck,
it would be uneconomical for him to carry a sufficient sup-
ply of helpers, everyone wants the truck off the pier as
soon as possible, so the stevedores have their employees
lend a hand. It is not clear whether an additional charge
is collected for this, but we do not think it matters.
Neither do we think it matters that the stevedore might
not be liable for mishandling by a longshoreman within
the truck.
Petitioners make a significant argument that the high
benefits under the Amendments were provided because
of the extremely hazardous nature of longshoring and
that these extraordinary hazards no longer exist once
the cargo is beyond the “point of rest.” Indeed, in Capu-
to’s case the parties stipulated that what Caputo was
doing was the same, and entailed the same risk of injury,
2* We thus are not required to decide whether cargo should ever
be regarded as “stored” so long as it remains on the pier in the
custody of the stevedore employed by the vessel rather than being
placed in a public warehouse. Dellaventura’s case, where there was
a delay of 133 days, might have demanded such a decision.
as exists wherever and by whomsoever trucks are loaded
or unloaded with dollies. The Senate Report, p. 2, refers
to “high-risk occupations such as those covered by this
Act” and says that “(ljongshoring, for example, has an
injury frequency rate which is well over four times the
average for manufacturing operations.” What we do not
know is what types of operations were considered to be
longshoring for the purpose of these calculations. Also,
as shown by the case of Blundo, who slipped on ice while
he was checking the contents of a container that was
being stripped on a pier other than the one where the
vessel was unloaded, unusual hazards can exist due to
the exposure of piers to the elements which would not
exist in a manufacturing plant or in a garage or ware-
house where containers removed from trucks were being
stripped. Doubtless the hazards of longshoring vary with
the particular tasks being performed, and may in some
instances be no greater than those encountered by persons
doing similar work in places other than piers or ter-
minals adjoining the water’s edge.” However all this may
be, we find nothing in the words of the statute or its leg-
islative history that would enable us to construct a “haz-
ard” test; Congress’ intention was rather to provide uni-
formity of coverage for workers injured while engaged in
the process of loading or unloading ships who met the
situs test. We note in this connection that the increased
benefits inure to shipbuilders meeting the situs test, al-
though much of their work is performed in facilities no
more hazardous than those not within the expanded defi-
nition of “navigable waters” and that the benefit sched-
ules of LHWCA apply to all industrial accidents in the
** But see the statement of Representative Hicks of Massachu-
setts on the floor of the House. 118 Cong. Rec. 36387 (Oct. 14, 1972).
And see House Hearings, supra note 22, at 288-89 (statement of
Patrick Tobin, Internat’! Longshoremen’s and Warehousemen’s Un-
ion (ILWU)).
39a
District of Columbia, Act of May 17, 1928, ch. 612, 45
Stat. 600 (1928), 36 D.C. Code § 501 (1973).
In a variation of the argument last considered, peti-
tioners contend that because of the higher benefits pay-
able under LHWCA than under state compensation acts,
construing the Amendments to apply beyond the point of
rest will increase the already high expenses of stevedores
to an extent that Congress could not have intended.
Clearly, as explained at the outset, the act was a trade-
off—a gain to the stevedores in doing away with the
Sieracki-Ryan triangle, a gain to the workers in higher
benefits and in moving the Jensen line shoreward. Just
how much added cost Congress meant to impose on steve-
dores by the second part of the bargain is impossible to
determine.*® What is clear is that Congress had a pro-
found distaste for a regime in which employees engaged
in the rough and tumble work described in the Amend-
ments should be covered under the Federal Act at one
moment and under state acts at another.
We therefore hold that the Amendments at least cover
all persons meeting the situs requirements (1) who are
engaged in stripping or stuffing containers or (2) are
engaged in the handling of cargo up to the point where
the consignee has actually begun its movement from the
pier (or in the case of loading, from the time when the
consignee has stopped his vehicle at the pier), provided
in the latter instances that the employee has spent a sig-
26 It is worth noting that the increased benefits provided by the
Amendments followed recommendations of the National Commission
on State Workmen’s Compensation Laws ( Sen. Rep., p. 4), and that
Congress may well have expected that enactment of the Amendments
would have an effect on state compensation laws. Hearings on S.
2318, S. 525, and S. 1547 ( Longshoremen’s & Harbor Worker’s
Compensation Act Amendments of 1972) before the Subcomm. on
Labor of the Senate Comm. on Labor & Public Welfare, 92d Cong.,
2d Sess., at 74 (statement of James O’Brien, Ass’t Dir. Soc’l Sec.
Dep’t, AFL-CIO), 149 (statement of Joseph Leonard, Safety Di-
rector, ILA).
Pad
A
40a
nificant part of his time in the typical longshoring ac-
tivity of taking cargo on or off a vessel. That is as far
as we need to go to affirm Blundo’s and Caputo’s awards;
whether the proviso is essential can be left for another
day.
Petitioners say, as indicated above, that in effect our
construction reads the status requirement out of the Act.
We concede it goes some way in that direction. But it
does not do so completely; we part company with Gilmore
& Black when they assert that the commitee reports
should be disregarded and the Amendments then “can
fairly be read to cover all employment-related injuries
which occur within the Act’s territorial limits.” The Law
of Admiralty, § 6.51 at 430 (1975).*" We believe our po-
sition avoids some of the more problematic possibilities
lurking in the new “status” requirement, and accords
with the liberal interpretation which must be given this
remedial statute and its remedial amendments. See Com-
ment, Broadened Coverage Under the LHWCA, 33 La.
L. Rev. 683, 693 (1973).
VI. Constitutionality
In so construing the Amendments we have necessarily
assumed that the construction would be constitutional.
We think that assumption is well founded.
It is beyond dispute that “Although containing no ex-
press grant of legislative power over the substantive law,
the provision [of Article III as to admiralty and mari-
time jurisdiction] was regarded from the beginning as
** They add that “a female secretary who works in a terminal
warehouse should qualify as a LHCA harbor worker in exactly the
same way that a female hairdresser in a cruise ship’ beauty salon
qualifies as a Jones Act seaman.” Jd. We do not find the analogy
persuasive. Cruise ships encounter rough weather and may even
sink; terminal warehouses don’t. Cf. Malramas v. American Export
Isbrandtsen Lines, Inc., 475 F.2d 165 (2 Cir. 1973).
4la
implicitly investing such power in the United States.”
Panama R.R. Co. v. Johnson, 264 U.S. 375, 386 (1924).
The classic definition of the jurisdiction was Mr. Justice
Story’s in DeLovio v. Boit, 7 Fed. Cas. 418, 444, Case
No. 3776 (C.C.D. Mass. 1815) that it “comprehends all
maritime contracts, torts, and injuries. The latter
branch is necessarily bounded by locality, the former
extends over all contracts, (wheresoever they may be
made or executed, or whatsoever may be the form of the
stipulations) which relate to the navigation, business or
commerce of the sea.” Mr. Justice Story used the broad
term “locality” in his definition of the jurisdiction with
respect to “torts, and injuries.” Although the Supreme
Court later defined locality as including only injuries
suffered on navigable waters and not injuries on the land
caused by a vessel, The Plymouth, 70 U.S. (3 Wall.)
20 (1866), the Court has acquiesced in Congress’ over-
ruling that holding by the Admiralty Extension Act, 46
U.S.C. § 740, which was applied without question in
Gutierrez v. Waterman S.S. Corp., 373 U.S. 206 (1963).
See also United States v. Matson Navigation Co., 201
F.2d 610 (9 Cir. 1953), cited with approval in Victory
Carriers, Inc. v. Law, 404 U.S. 202, 209 n.9 (1971),
in which the Court stated that “if denying federal reme-
dies to longshoremen injured on land is intolerable, Con-
gress has ample power under Arts. I and III of the Con-
stitution to enact a suitable solution.” Jd. at 216. Most
important of all are the staternents in Nacirema, supra,
396 U.S. at 223, that “There is much to be said for uni-
form treatment of longshoremen injured while loading
or unloading a ship,” and the suggestion that Congress
28 The Court has also sustained the Jones Act, which accords to
seamen a remedy for injuries on land as well as on the sea, as an
extension of the remedy of maintenance and cure. O’Donnell Vv.
Great Lakes Dredge & Dock Co., 318 U.S. 36, 40-41 (1943). If
Sieracki retains any vitality, the constitutionality of the extension
of coverage by the Amendments could be supported on this theory.
42a
be invited to do something about this, id. at 397. The
Court would scarcely have suggested this if it had en-
tertained doubt as to the constitutionality of a Congres-
sional response.
We thus see no reason to question the power of Con-
gress to expand the concept of a maritime tort to include
injuries suffered by persons on structures adjoining navi-
gable waters in the course of employment related to
ships. If we were more doubtful on the point than we
are, we would see no reason why the extension of cover-
age could not be predicated on the portion of the jurisdic-
tion relating to maritime contracts, where there is no
“locality” test. Coatracts of employment relating to mari-
time matters are within that jurisdiction, Sheppard vy.
Taylor, 30 U.S. (5 Pet.) 675 ( 1831), and claims under
LHWCA are by an employee engaged in “maritime em-
ployment” against an employer.
The petition to review in Dellaventura’s case is dis-
missed as untimely and the petition in Scaffidi’s case is
dismissed on the ground that there no longer is a justici-
able controversy between the employer and the employee.
The petitions in Blundo’s and Caputo’s cases are denied
on the merits.
LUMBARD, Circuit Judge (encurring 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 car-
rier’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
43a
considerations have been so ably and extensively set forth
here by Judge Friendly and also by Judge Winter in
LT.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 discus-
sion. I agree with Judge Winter that “[t)he 1972 exten-
sion 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 en-
gaged in longshoring operations, the Amendments ex-
tend 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 had been trucked through
the streets to the 19th Street pier to be opened there by
United States Customs before the container was stripped.
44a
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
For these reasons I would grant the petition and set
aside the awards in the cases of Blundo and Caputo.
»
ert bt the
44a-1
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
At a Stated Term of the United States Court of Ap-
peals, in and for the Second Circuit, held at the United
States Court House, in the City of New York, on the
first day of July, one thousand nine hundred and seventy-
six.
Present: Hon. J. EDWARD LUMBARD
Hon. HENRY J. FRIENDLY
Hon. JAMES L. OAKES
Circuit Judges.
75-4043, 75-4249
76-4009, 76-4042
PITTSTON STEVEDORING CORPORATION,
Petitioner
Vv.
JOHN SCAFFIDI,
Respondent.
IN THE MATTER OF THE CLAIM FOR COMPENSATION UNDER
THE LONGSHOREMEN’S AND HARBOR WORKERS’ COMPEN-
SATION ACT MADE BY CARMELO BLUNDO,
Claimant-A ppellee
Vv.
INTERNATIONAL TERMINAL OPERATING COMPANY, INC.,
Self-Insured Cmployer-A ppellant
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,
Respondent.
44a-2
NORTHEAST MARINE TERMINAL COMPANY, INC.,
and STATE INSURANCE FUND,
Petitioners
Vv.
RALPH CAPUTO, and DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,
Respondents.
PITTSTON STEVEDORING CORPORATION and
THE HOME INSURANCE COMPANY,
° Petitioners
Vv.
ANTHONY DELLAVENTURA, and DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Respondents.
Petitioners for review of orders of the Benefits Review
Board of the Department of Labor.
This cause came on to be heard on the administrative
record of the Benefits Review Board and was argued by
counsel.
Upon consideration thereof, it is now hereby ordered,
adjudged and decreed that said petitions be and they
hereby are dismissed in part and denied in part in ac-
cordance with the opinion of th's court with costs to be
taxed against the petitioners.
A. DANIEL FUSARO
Clerk
By /s/ Vincent A. Carlin
Chief Deputy Clerk
45a
APPENDIX B
BRB No. 75-142
CARMELO BLUNDO
Claimant-Respondent
Vv.
INTERNATIONAL TERMINAL OPERATING COMPANY, INC.
Employer-Petitioner
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PRO-
GRAMS, UNITED STATES DEPARTMENT OF LABOR
Party in Interest
DECISION
Appeal from Decision and Order of Patrick G. Geraghty,
Administrative Law Judge, United States Department
of Labor.
Leonard J. Linden (Linden and Gallagher), New York,
New York, for employer.
Angelo C. Gucciardo (Israel, Adler, Ronca and Gucciar-
do), New York, New York, for claimant.
Ronald Meisburg (William J. Kilberg, Solicitor of La-
bor, Laurie M. Streeter, Associate Solicitor), Washington,
D.C., for Director, Office of Workers’ Compensation Pro-
grams, United States Department of Labor.
Before: Washington, Chairperson, Hartman and Miller,
Members.
Miller, Member :
This appeal by the employer seeks review and reversal
of a Decision and Order (75-LHCA-157), and a subse-
46a
quent Order by which the first was amended, of Adminis-
trative Law Judge Patrick G. Geraghty. The claimant
was awarded compensation for temporary total dis-
ability, interest, medical expenses and attorney’s fees.
The employer was credited with amounts already paid
to the claimant pursuant to the compensation statute of
the state of New York. The claim was filed pursuant to
provisions of the Longshoremen’s and Harbor Workers’
Compensation Act, as amended, 33 U.S.C. § 901 et seq.
(hereafter referred to as the Act).
The claimant sustained injuries to his back and head
on January 8, 1974, while working as a checker with a
crew of men who were stripping a container at the 19th
Street Pier, within the employer’s terminal at Brooklyn,
New York. The containers which were stripped at the
time of injury had been off-loaded from a vessel some time
previously, apparently by employees of another company,
and brought to the I.T.0. Co. terminal by truck for strip-
ping.
The administrative law judge found that the claimant’s
injury occurred within both the “status” and “situs” jur-
isdiction of the Act and awarded compensation accord-
ingly. In this appeal, the employer contests these findings,
contending that at the time of injury, neither the em-
ployer, the employee or the place of injury was within
the jurisdiction of the Act and that finding this claim to
be within the jurisdiction of the Act is unconstitutional.
The Board rejects the employer’s arguments and agrees
with the administrative law judge. This injury did oe-
cur under circumstances which are within the jurisdic-
tional requirements of Section 2(3), (4) and 3(a) of the
Act. 33 U.S.C. §§ 902(3), (4), 908(a).
It is argued that the claimant was not engaged in
maritime employment at the time of his injury, and so
was not an “employee” within the meaning of Section
47a
2(3), because the container being stripped had been
brought to the employer’s terminal by a trucking com-
pany over public streets and that once delivered to this
trucking company, the container was being moved for
trans-shipment and had left maritime jurisdiction. The
Board has consistently held that stripping containers,
which may have been off-loaded from a vessel some days
earlier, is a longshoring operation, part of the over-all
process of unloading a vessel, is maritime employment and
a person engaged in this activity is an “employee” with-
in the meaning of Section 2(3). Stockman v. John T.
Clark & Son of Boston, Inc., 2 BRBS 99, BRB No. 74-
231 (July 30, 1975). The fact that the claimant was
a checker rather than a longshoreman actually engaged
in removing cargo from a container does not remove him
from the Act’s coverage; the legislative history of the Act
specifically indicates intent that checkers be covered. S.
Rep. No. 92-1125, 92d Cong., 2d Sess. 13 (1972); H.R.
Rep. 92-1441, 92d Cong., 2d Sess. 11 (1972). The fact
that the container had been removed from a ship at one
location and transported to another location for strip-
ping does not take it out of maritime commerce. See
Stockman, supra. Cargo remains in maritime commerce
until it is delivered to a consignee for further trans-
shipment and moving a container from one location to
another for the purpose of stripping, removing its con-
tents in preparation for delivery to consignees, is not
itself “further trans-shipment” so as to take it out of
maritime commerce.
The employer contends that it is not an “employer”
within the meaning of Section 2(4) because it was not
engaged in unloading a vessel at the 19th street pier at
the time of the claimant’s injury. Since the claimant and
his co-workers were engaged in a longshoring operation,
maritime employment, the employer is an “employer” as
defined in Section 2(4). Harris v. Maritime Terminals,
Inc., 1 BRBS 301, BRB No. 74-178 (Feb. 3, 1975).
48a
The employer’s argument that the place of injury, the
19th Street Pier, is not within the jurisdiction of the
Act, is without merit. The claimant was injured within
the confines of the employer’s terminal, adjoining navi-
gable waters. Such a terminal is within the “situs” jur-
isdiction of the Act. Lopez v. Atlantic Container Lines,
Ltd., 2 BRBS 265, BRB No. 75-117 (Sept. 9, 1975).
Since the claimant was injured within a terminal cus-
tomarily used by an employer in loading or unloading
vessels, even though at a neighboring pier rather than
the specific pier where the claimant was working, the jur-
isdictional requirement of Section 3(a) is satisfied. See
Harris v. Maritime Terminals, Inc., supra.
The employer’s final argument, that finding this
claimant to be covered requires an unconstitutional in-
terpretation of the Act, must be rejected. The Board's
views on this subject have been adequately discussed in a
prior opinion. Coppolino v. 1.7.0. Co., Inc., 1 BRBS
205, BRB No. 74-136 (Dec. 2, 1974).
The Decision and Order, as amended, of the administra-
tive law judge, is affirmed in all respects.
Dated this 30th day of October, 1975.
49a
APPENDIX C
U.S. DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
Washington, D.C. 20210
Case No. 75-LHCA-157
(Formerly No. 2-31357)
In the Matter of
CARMELO BLUNDO,
e Claimant
INTERNATIONAL TERMINAL OPERATING COMPANY, INC.,
Employer (Self-Insured)
Angelo C. Gucciardo, Esquire
Israel, Adler, Ronca & Gucciardo
160 Broadway
New York, New York 10038
For the Claimant
Leonard J. Linden, Esquire
Linden & Gallagher
20 Vesey Street
New York, New York 10007
For the Employer
Ronald Meisburg, Esquire
William J. Kilberg, Solicitor of Labor
Marshall H. Harris, Associate Solicitor of Labor
By Brief
For the Director, Office of
Workers’ Compensation Programs ,
Party in Interest
50a
Before: PATRICK G. GERAGHTY
Administrative Law Judge
Decision and Order
This is a proceeding held pursuant to the Longshore-
men’s and Harbor Workers’ Compensation Act, as
amended, 33 U.S.C. § 901 et seg. (hereinafter cited as
the Act), on a claim for compensation benefits filed by
Carmelo Blundo (hereinafter referred to as Claimant)
under the Act. The case is before this Administrative
Law Judge for formal hearing and decision, as is pro-
vided by the Act and the Rules and Regulations imple-
menting safd Act, 20 C.F.R. § 701 and 702.
- After due notice to the Parties, a formal hearing was
held, on this matter, on December 11, 1974, in New York
City, New York. The Claimeat was present and was
represented by his Attorney, Angelo C. Gucciardo, Es-
quire. The Employer, who is Self-Insured, was repre-
sented by its Counsel, Leonard J. Linden, Esquire. Coun-
sel were afforded full opportunity to present evidence, to
call, examine and cross-examine witnesses.
Counsel from the Office of the Solicitor of Labor yas
not present at the formal hearing; however, the Solici-
tor has filed a Brief on behalf of the Director. Office of
Workers’ Compensation Programs, a Partyin-Interest,
pursuant to 20 C.F.R. § 702.333(b). Comsel for the
other Parties have also submitted Brief: in support of
their respective positions and Counsel .6r Employer has
also submitted a memoranda in replv to the Briefs filed
by the Claimant and the Solicitor. In addition, Counsel
‘Sy Haimant has submitted a petition for allowance and
in support of a reasonable attoney’s fee. All these docu-
ments have been duly consijered and they are hereby
incorporated into this recox,
5la
Stipulations of the Parties
At the commencement of this formal hearing, Counsel
for the Parties stipulated and agreed that there was no
dispute as to the following matters:
1.
The Claimant sustained his injury on January 8,
1974, while in the employ of the Employer and
within the course of said employment.
There was timely notice, both of the injury and
of this claim.
The Claimant, as a result of said injury was tem-
porarily totally disabled from January 9, 1974,
to February 1, 1974, for which period Employer
has paid to Claimant $285.00, as compensation
benefits pursuant to the New York State Work-
men’s Compensation Statute, less two (2) days
worked.
The Claimant’s average weekly wages, at time
of injury, were $257.69, for a compensation rate
of $171.79 per week.
The Claimant sustained an accidental injury to
his head and lower back, while working as a
checker at Employer’s pier facility, located at
21st Street, Brooklyn, New York.
These stipuations and agreements are accepted and these
matters are, therefore, considered established.
Issues
There are two questions presented for resolution: (1)
Did the Claimant sustain his injury in an area within
the jurisdiction of the Act; (2) Was the Claimant, at
the time of injury, an “employee” within the meaning
of the Act?
52a
Decision
It is argued that the Claimant is not entitled to com-
pensation benefits under the Act, as he did not sustain
his injury in a place within the jurisdiction of the Act.
In the 1972 Amendments to the Act, Congress expanded
the situs test’ by providing that:
Compensation shall be payable under the Act in re-
spect 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.)
(Emphasis added) .?
Thus, Congress has modified the original situs require-
ment, expanding the physical locus of the Act’s jurisdic-
tion to include injuries incurred on shoreside facilities.
The Claimant, on the date of his accident, was em-
ployed at Employer’s facility, commonly known as 21st
Street Pier, which is located in Brooklyn, New York.
This enfenced facility encompasses an area 1,000 feet by
700 feet, between 19th and 21st Streets. As reflected in
this record, there are apparently two (2) finger-piers at
the facility, termed respectively: the 19th Street Pier
and the 21st Street Pier. The pier at 21st Street can
berth approximately five (5) ships, for purposes of load-
ing or unloading. The 19th Street Pier, however, is not
Prior to the 1972 Amendments, situs requirements restricted
coverage to injuries occurring on the navigable waters of the United
States. 33 U.S.C. § 903(a), 44 Stat. 1426 (1927); Travelers Ins. Co.
v. Shea, 382 F.2d 344 (5th Cir. 1967), cert. denied, 389 U.S. 1050
(1967), reh. denied, 393 U.S. 903 (1968); Nacirema Operating Co.
v. Johnson, 396 U.S. 212, 90 S.Ct. 347 (1969), reh. denied, 397 U.S.
929 (1970).
233 U.S.C. § 903(a), 86 Stat. 1251 (1972).
53a
utilized by Employer for the actual loading or unload-
ing of vessels; rather, it is used for storage of com-
modities and for stripping, or stuffing, i.e., loading or
unloading, of containers. The Claimant sustained his
injury at the 19th Street Pier, while checking cargo be-
ing stripped from a container, which, sometime pre-
viously, had been off-loaded from a vessel at another of
Employer’s facilities and brought to the 21st Pier facil-
ity for stripping.’
The legislative history of the Amendment specifically
states the Congressional intent to expand coverage be-
yond the water’s edge.* The Amendment incorporates this
intent, expressly extending coverage to include an ad-
joining pier, or other adjoining area customarily used
by an employer for, inter alia, loading or unloading ves-
sels. It has been held that, “. . . until cargo is delivered
to a trucker or other carrier who is to pick it up for
further trans-shipment such cargo is in maritime com-
merce .. .”° Clearly the container which contains the
cargo must, until stripped, also be deemed to be in mari-
time commerce. Moreover, a construction of the words
loading or unloading a vessel, so as to restrict coverage
only to those individuals actually engaged in such activ-
ity, is unduly restrictive and has been rejected.” Such
rationale is applicable here and is consistent with cases
holding that stuffing or stripping of containers is an in-
*The fact that this work was being done by Employer, under
contract, for American Export Lines, does not affect the maritime
nature of the work accomplished in this area.
*S. Rep. No. 92-1125, 92nd Cong., 2d Sess., 13, Legislative His-
tory of the Longshoremen’s and Harbor Workers’ Compensation Act
Amendments of 1972 (1972), at 64; 75.
5 Avvento V. Hellenic Lines, Ltd., et al., BRB No. 74-153 (Novem-
ber 12, 1974) at 4.
*Cf. Coppolino v. International Terminal Operating Co., Inc.,
BRB No. 74-136 (December 2, 1974) at 3; Adkins v. 1.7.0. Corpo-
ration of Baltimore, BRB No. 74-123 (November 29, 1974).
54a
tegral and essential step in the overall loading or un-
loading process.’ I conclude, therefore, that the area in
which Claimant sustained his injury is included within
the expanded situs requirements of the Act. Accordingly,
I find that from the standpoint of situs, this claim comes
within the provisions of the Act.
However, employees not engaged in maritime employ-
ment as defined by the Act, are not covered just because
they sustain an injury in an area to which the Act’s
jurisdiction has been extended;* therefore, if Claimant
is to prevail, he must also meet the status tests now im-
posed by the Act: he must, at the time of injury have
been an “employee”, in the employment of an “employer”,
as those terms are defined by the Act. The Employer
herein conceded that it is an “employer”, as that term is
defined by the Act;° therefore, it is taken as established
that the Employer is an “employer” within the meaning
of the Act.’ The Act contains the following definition of
the term, “employee”:
(3) The term “employee” means any person en-
gaged in maritime employment, including any long-
shoreman or other person engaged in longshoring
operations, and any harbor worker including a ship
repairman, shipbuilder, and ship-breaker .. . ."
At the time he sustained his injury, the Claimant was
performing his duties as a checker, on the 19th Street
Pier, assisting in the stripping of a container and the
segregation of its cargo into separate drafts. Although
7E.g. Powell v. Cargill, Inc., 74-LHCA-172 (October 8, 1974),
Judge Miller; Stockman v. John T. Clark & Son of Boston, Inc.,
et al., 74-LHCA-219 (November 25, 1974), Judge Oliver.
8 Legislative History, supra, note 4 at 75.
* TR 80-81.
© 33 U.S.C. § 902(4), 86 Stat. 1251 (1972).
1 33 U.S.C. § 902(3), 86 Stat. 1251 (1972).
55a
a precise date was not determined, it is clear that the
container from which the cargo Claimant was checking
was being stripped, was sometime previously off-loaded
from a vessel at another of the Employer’s facilities and
subsequently transported by an independent trucking
firm to the 19th Street Pier for stripping and further
trans-shipment. The Claimant, while in the process of
checking individual drafts formed from cargo stripped
from this container slipped on some ice, fell and sus-
tained the injury for which he seeks compensation in this
proceeding.
The process of unloading a vessel cannot reasonably
be held to have terminated at the point where the cargo
and its container hits the pier." Adopting such view, the
Benefits Review Board has held that cargo is deemed to
be in maritime commerce until it has been delivered for
further trans-shipment and that all employees engaged in
its movement to that point are engaged in maritime em-
ployment."* The fact that this particular container had
been off loaded from a vessel at another of Employer’s
facilities and thereafter trucked to the 19th Street Pier
for stripping, i.e., unloading, does not adversely affect
Claimant’s status. The container was not being trucked
for further trans-shipment; rather, it was merely being
transported for purposes of unloading. Herein the con-
tainer had to be stripped and the cargo separated into
individual drafts for further trans-shipment; hence both
the container and the cargo it contained, must be held to
have been moving in the stream of maritime commerce.
Until the contents had been stripped, the unloading proc-
ess had not been completed."* I conclude, therefore, that
“ Cf. Di Somma v. John W. McGrath Corp., 74-LHCA-176, Judge
Miller.
18 Avvento, supra, note 5 at 4.
“Cf. Crampton v. Cargill, Inc., 74-LHCA-215, Judge Smith;
Stockman Vv. John T. Clark & Son of B ston, Inc., et al., 74-LHCA-
219, Judge Oliver.
56a
the stripping of this container and the checking of the
drafts was an integral, essential and sequential part of
the overall process of unloading cargo from a_ vessel.
Moreover, the Claimant, while engaged in checking this
cargo, was performing a function to which Congress
expressly extended the coverage of the amended Act.”
Upon consideration of the record in its entirety and
the applicable precedents, I hold that the Claimant at the
time of his injury, was an “employee” of the Employer,
as that term is defined by the Act. Accordingly, as the
Claimant meets both the situs and the status require-
ments of the Act, he is entitled to receive compensation
benefits pursuant to the Act.
The record indicates that the Claimant has received
compensation benefits under the New York State Work-
men’s Compensation Statute. Acceptance of such benefits
under a state act does not constitute an election which
precludes recovery under the Federal Act."" The Em-
ployer, however, is entitled to credit for the amounts paid
thereunder against sums due pursuant to the Federal
Ac’ q
Counsel for Claimant has filed an application seeking
an awurd of attorney’s fees in the sum of $2,800.00. Upon
consideration of the application, my observations during
trial and the compensation results obtained, I find that
an attorney’s fee in the amount of $1,200.00 would be a
reasonable attorney’s fee." An attorney’s fee for said
amount is approved and assessed against the Employer.”
1S Legislative History, supra, note 4 at 75.
% Calbeck V. Travelers Ins. Co., 370 U.S. 114, 131, 82 S. Ct. 1196,
1206 (1962).
* Western Boat Bldg. Co. v. O'Leary, 198 F.2d 409, 411, 412
(9th Cir. 1952).
18 Avvento, supra, note 6 at 5.
* 33 U.S.C. § 928 (a).
57a
I hold that the disbursements which Counsel for Claimant
seeks to recover are not recoverable costs within the
meaning of the Act; therefore, their recovery and assess-
ment against the Employer is denied.”
Findings of Fact and Conclusions of Law
Upon consideration of the record in its entirety, the
Stipulations of Counsel, and from observation of the
witnesses and their demeanor, I make the following spe-
cific Findings of Fact and Conclusions of Law:
1. The Claimant has made a claim for compensation
benefits under the Act for injuries he sustained on Jan-
uary 8, 1974, while in the employ of the Employer.
2. The Claimant’s injury arose out of and in the course
of his employmer’*.
3. The Employer is an “employer” within the meaning
of the Act.
4. There was timely notice, both of the injury and of the
claim.
5. The area in which Claimant sustained his injury is
an area to which coverage has been extended by the Act.
6. At the time of injury, the Claimant was an “employee”
of the Employer within the meaning of the Act; there-
fore, Claimant is entitled to receive applicable compensa-
tion benefits urder the Act, as the Parties are subject to
the Act.
7. The Claimant was, as a result of his injurv, temporar-
ily totally disabled from January 9, 1974, to February 1,
1974, for which period, less two (2) days worked he is
entitled to the benefits provided by the Act. 33 U.S.C.
§ 908 (b).
*° 33 U.S.C. §928(d); Fox v. Pacific Ship Repair, Inc., et al., 75-
LHCA-53, at 10-11: Spencer v. Stockton Stevedore & Warehouse,
et al., 75-LHCA-52, at 9-10.
58a
8. The Claimant is entitled to have the Employer pay
for, or reimburse him for the reasonable cost of such
necessary medical treatment and care as the nature of
his injury may, or may have required. 33 U.S.C. § 907
(a).
9. The Claimant’s average weekly wages, at time of in-
jury, were $257.69, for a compensation rate of $171.79
per week.
10. The Employer has paid, to the Claimant, as compen-
sation benefits pursuant to state compensation law the
sum of $285.00, and Employer is entitled to receive credit
herein for such sum against amounts due under the Act.
11. The Claimant is entitled to have reasonable attor-
ney’s fees assessed against the Employer; however, other
disbursements are not recoverable costs, assessable against
the Employer.
Order
1. The Employer shall pay to the Claimant compensa-
tion for temporary total disability, at the rate of $171.79
per week, for the period from January 9, 1974, to Feb-
ruary 1, 1974, less two (2) days worked.
2. Interest on accrued payments due Claimant shall be
paid at the rate of six (6) percent per annum, com-
puted from the date each such payment was due, and the
total amount of such payments, as are now due and
owing, shall be paid forthwith, in a lump sum, to the
Claimant. Humble Oil and Refining Co. v. Taliaferro,
BRB No. 107-73 (June 1, 1973).
3. The Employer shall be allowed credit in the sum of
$285.00, against such amounts as are due hereunder,
which sum is the amount previously paid to the Claimant
pursuant to the compensation statute of the State of
New York.
59a
4. The Employer shall pay for, or reimburse the Claim-
ant for the reasonable cost of such necessary medial
care and treatment as the nature of Claimant’s injury
has or may require.
5. A legal fee in the amount of $1,200.00, for legal serv-
ices rendered to the Claimant is approved in favor of
Angelo C. Gucciardo, Esq., which fee shall be paid di-
rectly to him by the Employer.
P
/s/ Patrick G. Geraghty
PATRICK G. GERAGHTY
Administrative Law Judge
Dated: March 8, 1975
Washington, D. C.
60a
APPENDIX D
U.S. DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
Washington, D.C. 20210
Case No. 75-LHCA-157
(Formerly No. 2-31357)
In the Matter of
CARMELO BLUNDO,
, Claimant
Vv.
INTERNATIONAL TERMINAL OPERATING Co., INC.
Employer (Self-Insured)
Order Amending Previously
Issued Decision and Order
On March 8, 1975, this Administrative Law Judge is-
sued his Decision and Order in this proceeding, award-
ing compensation benefits to the Claimant. Therein, the
Employer was ordered, inter alia, to pay to the Claimant
compensation for temporary total disability, at the rate
of $171.79 per week, for the period from January 9,
1974 to February 1, 1974, less two (2) days worked.
Counsel for Claimant has filed a Motion to Modify the
Decision and Order of March 3, 1975, on the grounds
that the period of temporary total disability set forth
in paragraph 1 of said Order is incorrect. Counsel points
out that, although under the New York State compensa-
tion statute a claim was made and paid for temporary
total disability from January 9, 1974 to February 1,
1974, the Parties herein stipulated and agreed that, for
purposes of Claimant’s claim pursuant to the Federal
6la
Act, Claimant’s period of temporary total disability was
January 9, 1974 to April 15, 1974, inclusive, less two
(2) days worked (TR 6, 11, 9-18; Joint Evxhs. 1, 2).
Counsel for the Employer has not filed a Reply in oppo-
sition to this Motion for Modification.
WHEREFORE, as upon consideration of the foregoing
promises it appears that the Decision and Order of
March 8, 1975, should be modified to conform to the stip-
ulations and agreements of the Parties, it is therefore,
ORDERED, that the Decision and Order of March 3,
1975, be, and the same hereby is, modified as follows:
A. Paragraph 7, Findings of Fact and Conclusions of
Law:
7. The Claimant was, as a result of his injury, tem-
porarily totally disabled from January 9, 1974,
to April 15, 1974, for which period, less two (2)
days worked, he is entitled to the benefits pro-
vided by the Act. 33 U.S.C. § 908(b).
B. Paragraph 1, ORDER:
1. The Employer shall pay to the Claimant compen-
sation for temporary total disability, at the rate
of $171.79 per week, for the period from January
9, 1974, to April 15, 1974, inclusive, less two (2)
days worked.
and further, that in all other respects the Decision and
Order of March 3, 1975, is affirmed and adopted.
/s/ Patrick G. Geraghty
PATRICK G. GERAGHTY
Administrative Law Judge
Dated: April 18, 1975
Washington, D.C.
62a
APPENDIX E
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 75-1360
JOHN A. STOCKMAN,
Claimant, Respondent,
v.
JOHN T. CLARK & SON OF Boston, INC.,
and
AMERICAN MUTUAL LIABILITY INC. Co.,
Employer/Carrier, Petitioners,
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,
Party in Interest.
ON PETITION FROM THE
BENEFITS REVIEW BOARD
Before COFFIN, Chief Judge,
McENTEE and CAMPBELL, Circuit Judges.
George O. Driscoll for appellants.
63a
Joseph P. Flannery, with whom Joseph G. Abromovitz
and Kaplan, Latti and Flannery were on brief, for John
A. Stockman, appellee.
Linda L. Carroll, Attorney, United States Depart-
ment of Labor, with whom William J. Kilberg, Solicitor
of Labor, and Laurie M. Streeter, Associate Solicitor,
were on brief, for Director, Office of Workers’ Compen-
sation Programs, appellee.
July 27, 1976
CAMPBELL, Circuit Judge. This petition for review,
brought by an employer and its compensation carrier,
raises a difficult question of interpreting the 1972 amend-
ments to the Longshoremen’s and Harborworkers’ Com-
pensation Act (the Act). 33 U.S.C. § 901 et seq.
Working on the Boston waterfront for his employer,
John T. Clark & Son of Boston, Inc. (Clark), John A.
Stockman sustained an inguinal hernia on October 1,
1973, while removing the contents of a container ‘ which
had previously been off-loaded from a vessel. Clark and
its insurer, acknowledging liability under Massachusetts
workmen’s compensation law, furnished Stockman with
medical care and paid him compensation at the maxi-
mum weekly state rate of $80 during the seven weeks
that he was disabled. Stockman claimed, however, that
he was entitled to be compensated at the much higher
rate provided in the Longshoremen’s and Harborworkers’
Compensation Act. Total benefits payable under the Act
for the period of disability in question exceeded those
payable under Massachusetts law by more than $700.
When Clark and its carrier refused to acknowledge that
1 Containers are rectangula’ metal structures used to transport
cargo. After being taken off the vessel by crane, they are provided
with a chassis and wheeis and converted into large box trailers
capable of being trailed on the highways by tractors.
64a
Stockman was covered by the Act, the matter was re-
ferred to an Administrative Law Judge, § 919, who ruled
after hearing that Stockman was covered. Clark and
the carrier appealed from this ruling to the Benefits
Review Board (the Board), §921(b) (1976 Supp.),
which affirmed the decision of the Administrative Law
Judge. Thereafter they brought this petition, § 921(c)
(1976 Supp.).
I o
The difficulty in determining Stockman’s coverage arises
from the essential ambiguity of the 1972 amendments
insofar as they describe, or fail to describe, the em-
ployees for whom coverage is afforded. As was de-
veloped at the hearing before the Administrative Law
Judge, Stockman was a regular employee of Clark who
had for three years prior to his injury worked at Berth
5 of the Boston Army Base, an area adjacent to Boston
Harbor. Clark is both a stevedore, i.e. a firm engaging
directly in the unloading of vessels, and a terminal op-
erator.’ Clark’s Boston Army Base facility was used
2 Mr. Kelley, Clark’s Treasurer, gave his view of the difference
between a stevedoring and a terminal operation as follows:
“The distinction in the point of rest. Cargo that is—whether
it be containers or freight bulk cargo—when the longshore
gangs are working the cargo and discharging it and they bring
that cargo to a point of rest, either in a shed or outside a shed,
and they terminate, they tinish their job, that’s the end of the
stevedoring function, and from that point on the terminal
operation function takes over, it’s somewhat similar to a ware-
housing operation.”
Under Kelley’s theory, once the stevedoring function ended, the
work became freight handling.
Stockman, on the other hand, insisted,
“Cargo is merchandise that’s carried in a vessel and I main-
tain that cargo does not become freight until after it’s grounded
on the dock [viz. trucking dock] and the truck driver comes in
and touches it. ILA [the International Longshoremen’s As-
sociation, of which Stockman was a member] helps handle it
all the way until it’s actually taken out of that container. The
container in my opinion is more or less part of the ship.”
65a
both to unload vessels that berthed there, and to store
and warehouse cargo which had either been unloaded
there or been brought in containers from vessels berthed
elsewhere.
At the time Stockman sustained a hernia, he was at
Berth 5 of the Boston Army Base “stripping” (removing
cargo from) a container. The container had been dis-
charged from a vessel that had berthed during the pre-
vious three days at Berth 17, Castle Island, a facility
located approximately two miles by land or 700-800 feet
across water from the Boston Army Rase. Under the
terms of its contract with Sea-Land Corporation, the
owner of the container, Clark was “to unload vessels
as they come into port [and] discharge the containers.”
However, Sea-Land’s container vessels did not dock at
the Army Base since they require a special crane and
berth not available there. Sea-Land’s vessels berthed in-
stead at Castle Island, where the containers were put
ashore; chassis with wheels were provided; and those
containers having full loads for a particular consignee
were hitched to a truck-tractor and hauled directly to
their ultimate destinations, te be unloaded by the con-
signee. Some containers would not, however, contain a
full load for one consignee and it was up to Clark to
strip them, separate their contents by orders, and hold
the goods for pickup by consignees. In such cases, as
there were no facilities at Castle Island either for strip-
ping or for “stuffing” (placing cargo in) containers, the
containers would first be hauled by an independent truck-
ing firm, engaged by Sea-Land, to Clark’s Boston Army
Base facility. There Clark would remove the contents
from the containers, place them on pallets, and hold them
for pick-up by truckers for the various consignees. The
container Stockman was stripping had been hauled over-
land from Castle Island by a truck furnished by the
66a
Boston-Taunton Transportation Company under contract
with Sea-Land; and Stockman was removing the contents
and placing them on pallets at Berth 5 of the Boston
Army Base when he sustained his injury.
At the hearing various descriptions were offered of
Stockman’s job-title. Mr. Kelley, Clark’s treasurer, called
Stockman a “freight handler” as “that’s the insurance
code classification that he would fall under”. Stockman
himself testified that he was classified as a crane operator
and for casual work on the dock. He said he drove chisels,
stuffed and stripped containers, and shifted cargo. The
parties stipulated that Stockman was “employed as a
longshoreman with collateral ratings as a cooper and
extra dock laborer”. Stockman was a member of the
International Lengshoremen’s Association, AFL-CIO, and
Clark a member of the Boston Shipping Association, Ine.
Under an agreement between the ILA and the Shipping
Association, containers within 50 miles of a port (other
than ones handled by the “beneficial owners” of the
cargo) had to be stuffed and stripped by ILA longshore
labor working on a “waterfront facility, pier or dock.”
The relevant provisions of the Act against which Stock-
man’s claim of coverage must be measured are §§ 902
(3), 902(4) and 903(a), all as amended in 1972. Sec-
tion 903(a), entitled “coverage”, is sometimes referred
to as the “situs” requirement, and provides as follows:
“Compensation shall be payable under this chapter
in respect of disability or death of an employee, but
only if the disability or death results from an in-
jury 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 em-
ployer in loading, unloading, repairing, or building
a vessel)... .”
67a
Section 902(3), sometimes referred to as the principal
“status” requirement, defines and limits the term “em-
ployee” to,
“any person engaged in maritime employment, in-
cluding any longshoreman or other person engaged
in longshoring operations, and any harborworker in-
cluding a ship repairman, shipbuilder, and ship-
breaker [exclusive of a master or member of a crew
of any vessel, or any person engaged to load, unload
or repair any small vessel under eighteen tons
net }.”
There is also the following definition of “employer” in
§ 902 (4),
“an employer any of whose employees are employed
in maritime employment, in whole or in part, upon
the navigable waters of the United States (includ-
ing 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).”
The Administrative Law Judge, whose reasoning the
Benefits Review Board affirmed, ruled that Stockman’s
injury occurred at a location within the situs require-
ments of $903(a). He found that Stockman was em-
ployed to unload containers at Berth 5 of the Boston
Army Base; that Berth 5 adjoins navigable waters “and
is used for the general cargo operations of loading and
unloading vessels, although the stripping of containers
received from Berth 17, Castle Island is considered a
terminal operation”; and that Stockman’s injury met
the Act’s situs requirements since wharf and terminal
areas are specifically mentioned in § 903(a). The Ad-
ministrative Law Judge attached no weight to the fact
that the container had not been discharged from a vessel
at Berth 5 of the Boston Army Base but had been driven
two miles overland from Castle Island, Berth 5 being,
68a
in any event, a “terminal adjoining navigable waters”.
And even were this not so, Clark’s Army Base facilities
were an “other adjoining area customarily used by an
employer in... unloading .. . a vessel,” since any and
all Sea-Land containers that were to be stripped were
customarily trucked there from Castle Island as an in-
tegral step in the process of unloading a vessel.
The Administrative Law Judge went on to rule that
Clark, being both a stevedore and terminal operator, was
an “employer” within § 902(4) since it employed long-
shoremen to perform some of this work.
Finally, the Judge held that Stockman met the status
definition of “employee” under § 902(3), being engaged
in “maritime employment”. The Judge thought that little
attention should be paid labels such as longshoreman or
“freight handler’. Stating that it was not the label
given but “the nature of the work being performed”
that was determinative, the Judge held that “ju]ntil the
contents were removed from the containers the unload-
ing procedure had not been completely executed. The
unloading of this container was an integral and sequen-
tial part of the process of unloading cargo from a vessel.
Cf. Powell v. Cargiil, Ine., [74-LHCA-172 (October 8,
1974) ]; Richardson v. Great Lakes Storage & Contract-
ing Co., et al., 74-LHCA-223 (October 18, 1974)”. The
Judge continued,
“The fact that the containers had to be trucked
two miles across the channel for unloading is not
significant. The containers, at this point, were not
being picked up from storage for further trans-
shipment, but were merely being transported for
unloading. If the containers had been stripped by
longshoremen at the Castle Island facility where
they arrived, this work activity would, in my view,
have been clearly covered by the Act. Claimant
should not be denied the protection and coverage
69a
of the Act merely because circumstances required
S Employer to have longshoremen perform the
ing function at another waterfront facility
miles away. Cf. Crampton v. Cargill, Incor-
porated, 74-LHCA-215 . . . . Such a finding would
not be within the “humanitarian goals” of the Act.
. .. I hold that the Claimant was injured in a
shoreside area while he and his Employer were en-
gaged in maritime employment within the coverage
ot the Act.”
In affirming, the Benefits Review Board held it to be
“now well settled” that a claimant like Stockman was
within the jurisdictional reach of the Act. It said that
stripping and stuffing containers were “maritime em-
ployment”, and that the temporary resting of containers
for three days prior to stripping was immaterial to the
maritime nature of the employment.
Ill
While the Board’s determination is consistent with its
other recent rulings finding coverage for most handlers
of ship’s cargo at piers and waterfront terminals, what-
ever their precise function, judicial decisions to date con-
struing the 1972 amendments reflect a sharp difference
of opinion over the reach of the Act. A divided panel of
the fourth circuit has ruled that terminal employees, as
distinct from those immediately engaged in taking cargo
from (or putting it on) a vessel lying at its berth, are
not covered even when injured in an area more immedi-
ately adjacent to the ship’s berth than was the Boston
Army Base here. Terminal employees are not, in its view,
engaged in maritime employment within the meaning of
§902(3). 1.7.0. Corp. v. Benefits Review Board, 529
F.2d 1080 (1975), reargued en bane May 4, 1976. The
court felt that while the 1972 amendments enlarged the
“situs” so as to provide compensation for injuries oc-
70a
curring at designated shoreside facilities as well as on
shipboard, they narrowed the “status” requirement so as
to limit coverage to only maritime workers engaged most
directly in traditional employment, e.g., in cases of long-
shoremen, those immediately engaged, at the time of in-
jury, in the direct loading or unloading of a vessel itself.
To give effect to its interpretation of the amendments,
the fourth circuit read into the Act the notion of “point
of rest”, a point shoreward of which the handling of
cargo would cease to be covered by the Act.
A divided second circuit panel has rejected altogether
the fourth circuit’s point of rest approach. Pitiston Steve-
doring Corp. Vv. Dellaventura, Nos. 76-4042,-4009,-4043-
4249 (July 1, 1976) (Friendly, J.) In Pitiston, one of
the employees was a “checker” who, like Stockman, was
stripping a container of goods destined to different con-
signees at a waterfront area remote from where the ship
had been unloaded. The court held that stripping was
the “functional equivalent” of sorting cargo discharged
from a ship, and was covered by the Act.
From the present judicial melange* can be gathered
the truth of Judge Friendly’s remark:
“Given the importance of the question, the number
of courts of appeals endeavoring to find an answer,
and the divergence of opinion already manifested, it
seems unlikely that the opinion of any court of ap-
peals will be the last word to be said.” Slip op. at
4683.
3The ninth circuit has also recently interpreted the coverage
provisions of the Act, though on facts so different (longshoremen
were not involved) as to make the decision of little relevance here.
Weyerhaeuser Co. V. Gilmore, 528 F.2d 957 (9th Cir. 1975), petition
for cert. filed, 44 U.S.L.W. 3645 (U.S. May 6, 1976) (No. 75-1620).
The court emphasized that for an employee to be eligible, his own
work and employment must have a “realistically significant rela-
tionship” to traditional maritime activity.
7la
IV
Before expressing our views on the merits, we turn
to several preliminaries. First, we consider whether in
deciding the scope and coverage of the Act, we should
give weight to the presumption stated in § 920 that “the
claim comes within the provisions of this chapter”. We
think not. This provision relieves an injured employee
from a perhaps bothersome burden in cases where cov-
erage is uncontested, and it may well denote a policy
favoring coverage in close cases; but we do not think
it bears on the decision before us calling for a general
construction of “whether Congress placed the line at the
‘point of rest’ or much further landward”. Pittston,
supra, at 4703-04. This basic interpretative decision must
precede any application of the presumption.
Second, we do not see the decision before us as one
where we owe a special deference to the decision of the
Board (and of the Administrative Law Judge, whose
views were seemingly carried forward in the Board’s
shorter opinion). Judge Craven, dissenting in J/.7.0.,
supra, 529 F.2d at 1091, quoted the Supreme Court in
NLRB vy. Boeing, 412 U.S. 67, 75 (1973), to the effect
that “[a] consistent and contemporaneous construction of
a statute by the agency charged with its enforcement
is entitled to great deference by the courts.” Under § 939
the Secretary is directed to administer the Act and to
make necessary rules and regulations, and under § 921
(1976 Supp.) the Benefits Review Board, with members
appointed by the Secretary, is charged with determining
appeals subject to review by courts of appeal. Judge
Craven concluded that the Board, in “an unbroken line
of decisions”, has consistently and reasonably interpreted
the coverage provisions found in the 1972 amendments,
and that this interpretation should be accorded “ ‘great
weight’ ” by a court. 529 F.2d at 1092.
72a
But while the Board’s views are obviously to be re-
garded with interest and respect, we do not think we
are justified in a case of this character in subordinating
our own judgment. Professor Davis’ discussion is par-
ticularly helpful in considering how much deference a
court ought to accord to agency determinations. 4 Davis,
Administrative Law Treatise § 30.09 et seq. He suggests
three criteria: (1) the relative expertise of agency and
court; (2) whether there is express statutory delegation
of a question to the agency; and (3) whether the problem
involves general propositions or the application of such
propositions to specific facts.
The first criterion, the expertise of the court relative to
that of the agency, depends in turn upon the nature of
the question to be decided. Here the Secretary of Labor
and the Board may know more about the technical as-
pects of work on the waterfront, the needs of workers,
and the labor management issues intertwined with the
Act, but they have no greater expertise than a court in
construing statutes, judicial decisions and legislative his-
tory, and the latter is the paramount task before us.
The second criterion is the extent to which Congress
may have expressly entrusted the question to the agency
rather than to a court. Here Congress entrusted to the
Secretary the daily administration of the Act, but created
an independent Benefits Review Board to determine ap-
peals “raising a substantial question of law or fact”
from initial orders, §921(b) (3) (1976 Supp.), with
ultimate review in the courts of appeal. From this struc-
ture, we can doubtless infer an intention to grant ° the
Board, subject to court review, a substantial ov’ rsight of
questions of law and policy affecting the distribution of
benefits in a particular case. Still, we agree with Judge
Friendly that the Board is less a policy-making and more
an “umpiring” body than is true of agencies such as the
National Labor Relations Board, see Pittston, supra, at
73a
4706, while the Secretary’s own discretion, being sub-
ordinate in the legal area to that of the Board, is even
more limited. In sum, while on occasion we may well ex-
pect to defer to the Secretary or the Board in particular
applications, we see neither the Board nor the Secretary
as having been commissioned to settle the sort of ques-
tion, involving the general construction of an act of
Congress, encountered here.
As Davis points out in presenting his third and final
criterion, a distinction exists “between enunciation of
general propositions or methods of approach and the mere
application of such propositions or methods to unique
facts.” § 30.11, at 253. A question such as whether the
Act is to be interpreted to cover all workers in the load-
ing or unloading process, defined broadly, or only those
immediately associated with taking the cargo on or off
a certain vessel, is the kind of “general proposition” on
which courts must provide their own judgment. Id. at 254.
This is not to overlook our duty to accept the Board’s
factual findings when supported by substantial evidence.
Pittston, supra, at 4704. Although not expressly stated
in the Act, compare § 921(b) (3) (requiring the Board
to accept the supported findings of the Administrative
Law Judge), we readily assume the existence of such a
duty. Still the material facts are not in dispute, and as
the focus is upon the meaning of the statute, the judg-
ment must be our own, not the Board’s.
Vv
Proceeding, then, to our own assessment of Stock-
man’s status under the current Act, it is useful first to
consider the prior law and the changes brought about
by the 1972 amendments. Compensation was previously
payable only if disability or death resulted from injury
occurring upon “navigable waters” including “any dry
T4a
dock”. Recovery was expressly forbidden if recovery
could be validly provided under state workmen’s com-
pensation laws. The Supreme Court accordingly inter-
preted the earlier Act to reimburse only injuries sea-
ward of the pier, e.g. on shipboard or other like struc-
ture within the narrow confines of the admiralty tort
jurisdiction. Nacirema Co. v. Johnson, 396 U.S. 212
(1969) (no coverage under the Act for injuries to long-
shoremen occurring on a pier affixed to land) ; cf. Victory
Carriers, Inc. v. Law, 404 U.S. 202 (1971). Thus before
the amendments, the Act was regarded as a rather lim-
ited supplement to state workmen’s compensation laws,‘
designed, not to supersede or improve upon those laws
but to fill a gap which the states were without jurisdic-
tion to fili. Cf. Washington v. Dawson & Co., 264 U.S.
219 (1924); State Industrial Commission v. Nordenholt
Corp., 259 U.S. 263 (1922); Southern Pacifie Co. V.
Jensen, 244 U.S. 205 (1917).
An anomaly was then created by this narrow reliance
on location or “situs” to delineate the limits of coverage—
the same longshoreman who could recover if injured
while working on board a ship could not recover if in-
jured a few feet away from the ship on a pier. In Naci-
rema the Court recognized and discussed this seeming
*During the pre-1972 period, longshoremen and harbor-workers
injured on shipboard (or on land by a ship’s appurtenance) could
sue the vessel for unseaworthiness as well as for negligence, achiev-
ing, in some instances, recoveries far beyond anything available
under the Act. Guttierrez v. Waterman S.S. Corp., 373 U.S. 206
(1963) ; Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946). The 1972
amendments eliminated the unseaworthiness remedy for longshore-
men and harborworkers while greatly increasing the benefits pay-
able under the Act and by enlarging its scope to include injuries
on piers and terminals adjoining navigable waters. The amend-
ments also removed the express exclusion for injuries which would
be covered under state workmen’s compensation laws.
Tha
unfairness but felt there was little to be done.’ It dis-
cussed the matter in terms of “situs” and “status”, terms
used by the Administrative Law Judge in the present case
(Stockman’s injury was said to have occurred within the
“situs” provisions of the Act and his employment to meet
the “status” provisions). The Court said that it was
being urged to extend coverage on the basis of the
“status” of longshoremen employed in performing a mari-
time contract, 396 U.S. at 215, but declined to do so,
reading the Act as determining coverage exclusively by
the “situs” of the injury. The Court went on to state,
“Congress might have extended coverage to all long-
shoremen by exercising its power over maritime con-
tracts. 7 |7. The admiralty jurisdiction in tort was
traditionally ‘bounded by locality,’ encompassing all
torts that took place on navigable waters. By con-
trast, admiralty contract jurisdiction ‘extends over
all contracts, (wheresoever they may be made or
executed . . .) Which relate to the navigation, busi-
ness or commerce of the sea.’ Since a workmen’s
compensation act combines elements of both tort and
contract, Congress need not have tested coverage
by locality alone. As the text indicates, however,
the history of the Act shows that Congress did
indeed do just that.| But the language of the Act
is to the contrary and the background of the statute
leaves little doubt that Congress’ concern in pro-
‘The Court said in Nacirema,
“There is much to be said for uniform treatment of long-
shoremen injured while loading or unloading a ship. But even
construing the Extension [of Admiralty Jurisdiction] Act to
amend the Longshoremen’s Act would not effect this result,
since longshoremen injured on a pier by pier-based equip-
ment would still remain outside the Act.”
896 U.S. at 223. The Court concluded that while Congress could
draw whatever line it chose, “the plain fact is that it chose in-
stead the line in Jensen separating water from land at the edge
of the pier. The invitation to move that line landward must be
addressed to Congress, not to this Court.” 396 U.S. at 224.
76a
viding compensation was a narrower one.” [Cita-
tions omitted. |
896 U.S. at 215-16.
Against this background, Congress enacted the 1972
amendments. With respect to “situs”, it clearly shut the
door on any continued interpretation of the Act’s boun-
daries as being coextensive with the boundaries of ad-
miralty tort jurisdiction. While disability or death must
still result from an injury occurring upon the “naviga-
ble waters of the United States”, these are now defined
to include shoreside structures such as a pier, terminal,
or “other adjoining area customarily used by an em-
ployer loading, unloading, repairing, or building a
vessel”. Such facilities, not ordinarily considered to be
“navigable waters”, have always been outside the exclu-
sive federal admiralty tort jurisdiction. They are areas
where the authority of the United States to enact com-
pensation laws for maritime workers overlaps state au-
thority to enact workmen’s compensation laws."
Doubtless in part because of this overlap, Congress
did not limit its changes in 1972 to a widening of the
“situs” requirement. For the first time, it undertook to
define the class of persons covered by inserting an in-
clusive definition of “employee”, § 902(3). Thus while
“status”, as distinct from “situs”, was formerly of
minor importance, cf. Pennsylvania R. Co. v. O'Rourke,
344 U.S. 334 (1953), it has become a matter of consid-
erable significance. Only an “employee” is covered, de-
fined as “any person engaged in maritime employment,
including any longshoreman or other person engaged in
*As indicated in the text, the Supreme Court went to some
length in Nacirema to indicate that Congress had power to extend
federal workmen’s compensation laws for those in maritime em-
ployment shoreward, into areas outside the exclusive admiralty tort
jurisdiction.
TTa
longshoring operations, and any harborworker including
a ship repairman, shipbuilder, and shipbreaker .. . .”
§ 902 (3).
VI
In the present case, we hold that the situs requirement
of §903(a) was plainly met, in spite of the distance
separating Berth 5 of the Boston Army Base from the
Sea-Land berth at Castle Island. Appellants’ only sub-
stantial argument is their challenge to Stockman’s status
as a member of the covered class under § 902(3).’
On the question of situs, the simple fact is that the
amended Act defines navigable waters to include “any
adjoining pier, wharf, .. . terminal, . . . or other ad-
joining area customarily used by an employer in loading
for] unloading . . . a vessel”. § 903(a). “Adjoining” can
only refer to navigable waters; and Stockman was, as
even Clark concedes, working at a terminal which ad-
joined navigable waters. To be sure, the final reference
to “other adjoining area customarily used by an em-
ployer in loading |or| unloading... a vessel”, as well as
other parts of the statute, suggests that Congress had in
mind a terminal associated with the shipboard movement
of marine cargoes. But we do not think Congress meant
necessarily to limit “adjoining” to only those areas di-
rectly adjoining the berth of the specific vessel being un-
loaded. The terminal here in question is at a location
which is customarily used in loading and unloading ves-
7 Stockman contends that since appellants did not initially shape
their argument before us in terms of status, but rather urged that
the Army Base facility not being contiguous with Sea-Land’s Castle
Island berth, was outside the situs provision, we should decline to
consider the issue of status. But status was considered both by the
Administrative Law Judge and by the Board, and we think no
purpose is served in bifurcating the issues at this stage, the ultimate
question being one of construing the statute as a whole. In a reply
brief, appellants have belatedly briefed the status issue.
78a
sels. Some vessels do, in fact, lie there for loading and
unloading. Moreover, the area is several hundred yards
directly across open water from the berth of Sea-Land’s
container vessels and is generally part of the same
Boston waterfront area. We are not faced with the
stripping of a container at an inland freight depot hav-
ing only some incidental connection with navigable
waters. We therefore conclude, from all these factors,
that the situs requirement of § 903(a) has been met.
We thus return to what we regard as the only issue
on which appellants could prevail, whether Stockman was
engaged in “maritime employment” within § 902(3). We
agree generally with Judge Winter, writing for the ma-
jority in /.7.0., supra, 529 F.2d at 1084-85, that the
terms “maritime employment”, “longshoreman” and
“longshoring operations” in § 902(3) do not have any
such settled meaning that we should decide the case
without resort to the legislative history.
We start with the obvious fact that the Act and the
relevant House and Senate Reports speak repeatedly of
longshoremen, indicating, if it could be doubted, that they
are a prime class of employee intended to be benefited.
Stockman, the parties stipulated, is a “longshoreman”;
he belongs to the ILA; and he works at a waterfront ter-
minal for a stevedore and terminal operator whose chief
activity appears to be the handling of shipborne cargo.
Clark was under contract to “unload |Sea-Land| vessels
as they come into port |and]| discharge the containers”,
and it was in connection with this latter operation that
Stockman was injured.
Still, as the second circuit points out, “it is not enough
that a claimant calls himself a longshoreman or that a
longshoreman’s union in a particular port has forced
employers to hire its members for such unlongshoremen-
like positions as clerks or guards.” Pittston, supra, at
79a
4712. To be sure, stuffing and stripping containers is
much closer to conventional longshore activity than clerk-
ing or guarding, though the analogy is not total because
the containers, once landed, are transformed into trail-
ers. The contract between the ILA and the Boston Ship-
ping Association, in evidence here, reflects a negotiated
undertaking to use only longshore labor to strip and
stuff containers, and to do so exclusively at waterfront
facilities. Doubtless the union insisted upon such a pro-
vision because otherwise containers could be driven to
most any location and discharged there by non-water-
front labor. And its insistence upon the use of longshore
labor was not totally arbitrary. Containerization greatly
simplifies and speeds up the actual loading and unload-
ing of the ship itself, cutting down the workforce needed
for those operations. Much of the loading and unloading
that used to take place on or alongside the ship is pre~
sumably now reflected in the stuffing and stripping of
containers. From the longshoremen’s point of view this is
“traditional” work, and, as further discussed below, there
is much to support their position.
But while such considerations indicate that stuffing
and stripping—unlike clerking and guarding—cannot be
dismissed as beyond the reasonable purview of longshore
work, they do not tell us what coverage Congress had in
mind. Before proceeding further, we set forth the rele-
vant passages from the House Report:
“Extension of Coverage to Shoreside Areas
“The present Act, insofar as longshoremen and
ship builders and 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
80a
depending on which side of the water’s edge and in
which State the accident occurs.
“To make matters worse, most State Workmen’s
Compensation laws provide benefits which are in-
adequate; even the better State laws generally come
nowhere close to meeting the National Commission
on State Workmen’s Compensation Laws recom-
mended standard of 2 maximum limit on benefits of
not less than 200% of statewide average weekly
wages. ...
“It is apparent that if the Federal benefit struc-
ture,embodied in Committee bill is enacted, there
would be a substantial disparity in benefits payable
to a permanently disabled longshoreman, depending
on which side of the water’s edge the accident oc-
curred, if State laws are permitted to continue to
apply to injuries occurring on land. It is also to be
noted that with the advent of modern cargo-handling
techniques, such as containerization and the use of
LASH-type vessels, more of the longshoreman’s work
is performed on land than heretofore.
“The Committee believes that the compensation
payable to a longshoreman or a ship repairman or
builder should not depend on the fortuitous circum-
stance 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 employ-
ment (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 ad-
joining 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.
ee
8la
“The intent of the Committee is to permit a uni-
form compensation system to apply to employees
who would otherwise be covered by this Act for part
of their activity. To take a typical example, cargo,
whether in break bulk or containerized form, is typ-
ically unloaded from the ship and immediately trans-
ported to a storage or holding area on the pier,
wharf, or terminal adjoining navigable waters. The
employees who perform this work would be covered
under the bill for injuries sustained by them over
the navigable waters or on the adjoining land area.
The Committee does not intend to cover employees
who are not engaged in loading, unloading, repair-
ing, or building a vessel, just because they are in-
jured in an area adjoining navigable waters used
for such activity. Thus, employees whose responsi-
bility is only to pick up stored cargo for further
trans-shiprnent would not be covered, nor would
purely clerical employees whose jobs do not require
them to participate in the loading or unloading of
cargo. However, checkers, for example, who are di-
rectly involved in the loading or unloading functions
are covered by the new amendment. Likewise the
Committee has no intention of extending coverage
under the Act to individuals who are not employed
by a person who is an employer, i.e. a person at least
some of whose employees are engaged, in whole or
in part in some form of maritime employment.
Thus, an individual employed by a person none of
whose employees work, in whole or in part, on nav-
igable waters, is not covered even if injured on a
pier adjoining navigable waters.”
H.R. Rep. No. 92-1441, 92d Cong., 2d Sess.
Two other courts of appeals have already interpreted
the Act in light of these passages, coming to quite dif-
ferent conclusions. Judge Winter, writing in /.7.0. for
the fourth circuit, read the committee reports as limiting
coverage to those engaged in the immediate loading and
82a
unloading of ships, particularly in view of the stated in-
tent of the committees to achieve uniform compensation
of employees who would otherwise be covered for part of
their activity. The fourth circuit then went on to limit
coverage to injuries occurring between the first dockside
holding area and the ship.*
The second circuit, to the contrary, emphasizing the
committee’s concern for a “uniform compensation sys-
tem”, read the legislative reports as manifesting an in-
tention to cover, rather more broadly, those taking part
at the designated sites in the complex process of loading
or unloading a vessel, though it rejected (as do we) one
commentgry’s shotgun approach that “all employment re-
lated injuries which occur within the Act’s territorial
limits” be covered. G. Gilmore & C. Black, Law of
Admiralty § 6-51, at 430 (3d ed. 1975), quoted in Pit-
ston, supra, at 4719-20 & n. 27. In refusing to follow the
fourth circuit, the second circuit made much of the fact
that “employee” under the Act includes ‘any longshore-
man” as well as “other person engaged in longshoring
operations”. Thus “|a] ‘longshoreman’ may. . . be cov-
ered at some times even when he is not engaged in tra-
ditional longshoring activity.” Jd. at 4712. We agree
with Judge Friendly that, whatever the workers covered,
a claimant’s status need not depend wholly on the job
being performed at the very moment of injury.
® Judge Winter acknowledged that the point of rest rule so formu-
lated might result in coverage for a longshoreman working exclu-
sively on shore between the point of rest and the ship. While such
a shorebound worker would never have been covered under the
old Act, Judge Winter felt that coverage could be inferred from
the committee language as a whole and the liberality of construc-
tion to be afforded remedial legislation of this type. /.7.0., supra,
at 1088. Inexplicably, Judge Winter did not discuss the opposite
side of the coin: the failure of a point of rest rule to cover a long-
shoreman who works part of the time on vessels but whose injury
occurs while he is working at a covered situs shoreward of the
point of rest.
83a
It seems clear that, however construed, the House
Committee Report, and the similar Senate Committee
Report, Sen. Rep. No. 92-1125, 92d Cong. 2d Sess., go
only part way towards clarifying the application of the
1972 amendments in the present situation. None of the
mentioned examples refer to someone like Stockman.
Stockman is plainly not an employee “whose responsi-
bility is only to pick up stored cargo for further trans-
shipment”; nor do we think that hauling the trailer from
the Sea-Land berth to the Boston Army Base for strip-
ping can be viewed as picking up stored cargo for trans-
shipment. Indeed, Congress has seemingly gone out of
its way to avoid taking any express stance on the status
of those engaged in stuffing and stripping containers as
part of the loading and unloading process just as it is
silent on the status of other terminal employees engaged
in moving, storing and culling cargo on the pier. Still,
while scarcely explicit, the legislative reports do convey
several relevant messages:
1. The amendments are to be construed to achieve a
“uniform compensation system” which does not depend
on the “fortuitous circumstance of whether the injury
|to the longshoreman| occurred on land or over water”.
2. The amendments are to afford coverage to em-
ployees, or possibly classes of employees, who would other-
wise have been covered for part of their activity by the
the earlier Act.
8 One of the reasons for affording coverage on land
is that “with the advent of modern cargo-handling tech-
niques, such as containerization and the use of LASH-
type vessels, more of the longshoreman’s work is per-
formed on land than heretofore”.
Attempting to reconcile these notions, we are not sat-
isfied with the “point of rest” theory advanced by the
fourth circuit. To be sure, the committee reports state
that coverage is for employees who formerly would have
84a
been covered for part of their activity, in other words
those whose duties require their part-time presence on
shipboard (as there would be no coverage under the old
Act for purely landbased workers). But we see nothing
to suggest that Congress meant, for example, to exclude
from benefits a steadily employed longshoreman whose
duties periodically took him aboard ship but who, at the
time of injury, was engaged in moving terminal cargo
shoreward of the point of rest. The fourth circuit’s view
would create, in effect, a further and more narrow situs
requirement than that in the Act. See Judge Craven’s
dissent in /.7.0. supra, at 1096-97. Whether the status
of at least a steady employee is that of a “maritime”
worker, “including “longshoreman”, seems to us to re-
quire looking at the nature of his regularly assigned
duties as a whole.
We would further comment that the fourth circuit view
does not seem compatible with the “uniformity” of cover-
age Congress was seeking. The evil of the old Act was
that it bifurcated coverage for essentially the same em-
ployment. The point of rest approach would seem to
result in the same sort of bifurcation, since the same
employee engaged in an activity beyond the point of
rest would cease to be covered. This is not to say that
Congress might not have focused the generous benefits
of the Act on direct loading and unloading activities to
the exclusion of others. These are at the heart of the
longshoreman’s traditional work and may be more dan-
gerous.® But Congress expressly included “terminal” in
®* There is no distinction made in the committee reports based on
the dangerousness of the work performed. The reports do reflect
a belief that state workmen’s compensation payments are typically
inadequate—not just, it seems, for longshoremen but for workers
generally. In the sense that the 1972 Amendments are intended
to provide a more adequate level of coverage, they are “remedial”
and entitled, like the Act orginally, to be “liberally construed in
conformance with its purpose ... .” Voris v. Eikel, 346 U.S. 328,
333 (1953).
CO:
85a
the situs provisions of the Act, and we think that if a
bifurcation of this sort were intended, the Act, or at
least the legislative history, would have pointed to it
explicitly. We therefore reject the fourth circuit’s point
of rest analysis.
We are more persuaded by the reasoning of the second
circuit in Pittston, which held as follows:
“We therefore hold that the [1972|) Amendments at
least cover all persons meeting the situs require-
ments (1) who are engaged in stripping or stuffing
containers or (2) are engaged in the handling of
cargo up to the point where the consignee had ac-
tually begun its movement from the pier (or in the
case of loading, from the time when the consignee
had stopped his vehicle at the pier), provided in the
latter instances that the employee has spent a sig-
nificant part of his time in the typical longshoring
activity of taking cargo on or off a vessel.”
Slip op. at 4719. In order to arrive at (1), the Pittston
court laid heavy stress on the specific mention in the
committee reports of “the advent of modern cargo-
handling techniques, such as containerization” and on
the committees’ recognition that this caused more of the
longshoreman’s work to be performed on land. It also
noted the committees’ sanction for coverage of “checkers”
(who check the contents of containers against bills of
lading) without limitation as to where the checking
would be done. The court said,
“Stripping a container of goods destined to different
consignees is the functional equivalent of sorting
cargo discharged from
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