Appendix — P. C. Pfeiffer Co. v. Ford
Supreme Court brief1977
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MICHAEL RODAK, JR., CLERK |
IN THE
)
| Supreme Court of the United States
OCTOBER TERM, 1976
no. 6-% 6-641
P. C. PFEIFFER CO., INC. and
TEXAS EMPLOYERS’ INSURANCE ASSOCIATION,
Petitioners
v.
DIVERSON FORD and DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Respondents
tl tie
NO. 76-
AYERS STEAMSHIP COMPANY and
TEXAS EMPLOYERS’ INSURANCE ASSOCIATION,
Petitioners
v.
WILL BRYANT and DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Respondents
—— “<_< — ———
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Alpha Law Brief Co., One Main Plaza, No. 1 Main St., Houston, Texas 77002
eens
INDEX
Appendix A (Opinion and Judgments of the
United States Court of Appeals for the Fifth
Circuit (P. C. Pfeiffer Co. Inc., v. Ford, No.
75-2289; Ayers Steamship Company v. Bryant,
No. 75-4112, decided September 27, 1976),
reported at 539 F.2d 533) ..............
Appendix B (Decision and Order of Adminis-
trative Law Judge (Ford v. P. C. Pfeiffer Co.,
Inc., Case No. 74-LHCA-181, dated August
I fig oe on ie. NS be a Gh
Appendix C (Decision of the Benefits Review
Board (Ford v. P. C. Pfeiffer Co., Inc., 1
BRBS 367, dated March 21,1975) ..._
Appendix D (Decision and Order of Adminis-
trative Law Judge (Bryant v. Ayers Steamship
Company, Case No. 74-LHCA-89, dated Feb-
ED ga Va ug oe ek a 0 6
Appendix E (Decision of the Benefits Review
Board (Bryant v. Ayers Steamship Company,
2 BRBS 408, dated November 13, 1975) |.
Appendix F (/.7.0. Corporation of Baltimore
v. Adkins and Benefits Review Board (4th
Cir. en banc, Nos. 75-1051, 75-1075, 75-1196,
decided August 26, 1976) ................
Appendix G (Sealand Service, Inc. v. Johns and
Director, Office of Workers’ Compensation
Programs (3d Cir., No. 75-2039, decided Aug-
8 ES Ae Ae iets eran
Appendix H (Pittston Stevedoring Corporation
v. Dellaventura (2d Cir. Nos. 75-4249, 76-
4042, 76-4009, 76-4043, decided July 1,
a te ea ee rade 6 ps
Appendix I (Legislative History of the Exten-
sion of Coverage to Shoreside Areas, 1972
U.S. Code Cong. and Administrative News,
ot dos 65 We ek a8 66 oo oes
Page
31
52
59
88
96
114
137
|
APPENDIX A
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
October Term, 1975
NO. 75-2289
Your Nos. BRB 74-191 & 74-191A
P. C. PFEIFFER COMPANY, and TEXAS
EMPLOYERS’ INSURANCE ASSOCIATION,
Petitioners,
Vv.
DIVERSON FORD and DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,
Respondents.
Petition for Review of an Order of the Benefits Review
Board, United States Department of Labor, (Texas Case)
Before TUTTLE, THORNBERRY and
TJOFLAT, Circuit Judges.*
* Judge Thornberry was a member of the panel that heard oral
arguments but due to illness did not participate in this decision.
28 U.S.C. § 46(d) (1970).
2
JUDGMENT
This cause came on to be heard on the petition of P. C.
Pfeiffer Company and Texas Employers’ Insurance Asso-
ciation for review of an order of the Benefits Review
Board, Department of Labor and was argued by counsel;
ON CONSIDERATION WHEREOF, It is now here
ordered and adjudged by this Court that the order of the
Benefits Review Board, Department of Labor in this
cause be, and the same is hereby affirmed;
It is further ordered that petitioners pay to respondents,
the costs on appeal to be taxed by the Clerk of this Court.
September 27, 1976
Issued as Mandate:
3
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
October Term, 1975
NO. 75-4112
Your Nos. BRB 75-137 & 75-137A
AYERS STEAMSHIP COMPANY and TEXAS
EMPLOYERS’ INSURANCE ASSOCIATION,
Petitioners,
Vv.
WILL BRYANT & DIRECTOR, OFFICE
OF WORKERS’ COMPENSATION PROGRAMS,
U. S. DEPARTMENT OF LABOR,
Respondents.
Petition for Review of an Order of the Benefits Review
Board, United States Department of Labor, (Texas Case)
Before TUTTLE, THORNBERRY and
TJOFLAT, Circuit Judges.*
JUDGMENT
This cause came on to be heard on the petition of Ayers
Steamship Company and Texas Employers’ Insurance
* Judge Thornberry was a member of the panel that heard oral
arguments but due to illness did not participate in this decision.
28 U.S.C. § 46(d) (1970).
4 5
Association for review of an order of the Benefits Review JACKSONVILLE SHIPYARDS, INC.,
Board, Department of Labor and was argued by counsel; and Aetna Casualty & Surety Company, Petitioners,
ION WHEREOF, It is now here v.
«ant ab by this Court that the order of Herbert L. Perdue and Director, Office of Workers’
the Benefits Review Board, Department of Labor in this Compensation Programs, United States Department
cause be, and the same is hereby affirmed; of Labor, Respondents.
It is further ordered that Petitioners pay to respondents, JACKSONVILLE SHIPYARDS, INC., |
the costs on appeal to be taxed by the Clerk of this Court. and Aetna Casualty & Surety Company, Petitioners,
v.
1976 «
—— Charles W. SKIPPER and Diréctor, Office of Workers’
Issued as Mandate: Compensation Programs, United States Department of
Labor, Respondents.
P. C. PFEIFFER COMPANY and
Texas Employers’ Insurance Association, Petitioners,
Vv.
Diverson FORD and Director, Office of Workers’
Compensation Programs, United States Department
of Labor, Respondents.
HALTER MARINE FABRICATORS, INC.,
and Fidelity & Casualty of New York, Petitioners,
Vv
John L. NULTY and Director, Office of Workers’
Compensation Programs, United States Department
of Labor, Respondents.
AYERS STEAMSHIP COMPANY and
Texas Employers’ Insurance Association, Petitioners,
Vv
Will BRYANT and Director, Office of Workers’
Compensation Programs, United States Department
of Labor, Respondents.
6
Nos. 75-1659, 75-2833, 75-2289
75-2317 and 75-4112
United States Court of Appeals,
Fifth Circuit.
September 27, 1976.
Proceeding was brought to review awards to five shore-
side workers, who were injured in course of their employ-
ment, under 1972 Amendments to Longshoremen’s and
Harbor Workers’ Compensation Act by Benefits Review
Board. The Court of Appeals, Tjoflat, Circuit Judge, held
that Board properly awarded benefits to two workers who
were handling maritime cargo on shore as well as to a
carpenter who was fabricating parts for a new ship, but
that Board misconstrued Act in extending coverage to
shipboard worker who stumbled in front of his employer's
office a mile from ship and to employee who was helping
to tear down shed in disused marine repair facility; and
that Congress, which could reasonably have felt that ship-
building employees beside navigable waters were perform-
ing sufficiently maritime function to be covered by harbor
workers’ compensation statute, did not exceed its broad
discretion by extending coverage to such work.
Affirmed in part and reversed in part.
* * *
Petitions for Review of Orders of the Benefits Review
Board, United States Department of Labor.
Before TUTTLE, THORNBERRY and TJOFLAT,
Circuit Judges.*
* Judge Thornberry was a member of the panel that heard oral
arguments but due to illness did not participate in this decision.
28 U.S.C. § 46(d) (1970).
7
TJOFLAT, Circuit Judge.
I
AN OVERVIEW OF THESE CASES
The Parties and Their Dispute. With these five vigor-
ously contested appeals, petitioners and respondents join
battle for the third time. Each individually named re-
spondent is a shoreside worker who was injured in the
course of his employment. These respondents claim that
their injuries are covered by the 1972 Amendments to
the Longshoremen’s and Harbor Workers’ Compensation
Act (the Act), 33 U.S.C. §§ 901 et seg. (1970). In their
fight for coverage, the workers have a new and virtually
untested weapon, viz., those portions of the 1972 Amend-
ments which expanded the scope of the Act.' They also
have a powerful and articulate ally in the other respond-
ent, the Director of the Officer of Workers’ Compensation
Programs of the United States Department of Labor (the
Director).* The forces arrayed against respondents con-
sist of the workers’ employers and the employers’ insur-
ance Carriers.
1. Especially pertinent are new Sections 902(3) (definition of
“employee’’), 902(4) (definition of “employer”), and 903(a) (ex-
panded situs provision in new Act). Despite the fact that more than
three years have passed since the Amendment’s effective date, litiga-
tion over the Act’s new coverage is just now beginning to reach
the courts. See Weyerhaeuser Co. v. Gilmore, 528 F.2d 957 (9th
Cir. 1975. See also I. T. O. Corp. v. Benefits Review Bd., 529 F.2d
<-~Aay Cir. 1975), rehearing en banc granted (4th Cir. Mar. 12,
1976).
2. As shall appear infra, there is a dispute as to whether the
Director is a proper party respondent in this Court, or whether his
status is merely that of amicus curiae. In Part V of this opinion,
we hold that the Director is a proper respondent.
Procedural History. In each of the cases, a preliminary
skirmish was fought before an Administrative Law Judge.*
Reports from these battlefields show mixed results; pe-
titioners won three of the engagements, and respondents
two. The theater of operations then shifted to the Wash-
ington, D.C., headquarters of the Benefits Review Board
of the Department of Labor (the Board).* The Board
adopted an extremely liberal view of the Act’s coverage,
and respondents swept to victory in all five cases. After
losing the fight in Washington, D.C., petitioners chose to
escalate the conflict by asking this Court to review the
Board’s decisions.°
The Issues on Appeal. Before this Court, the lines of
battle have been drawn with admirable clarity and good
sense. Both sides have declined to assume certain exposed
legal positions where they would quickly fall prey to the
enemy’s fire. Thus, respondents concede that the five
accidents would not have been covered by the pre-1972
Act. Similarly, petitioners concede that the 1972 Amend-
ments have broadened the Act’s scope to include some
shoreside injuries. The issue which divides the two camps
3. New Section 919(d) provides that evidentiary hearings shall
be held before hearing examiners. The administrative regulations
relating to the Amendments make it clear that such hearing ex-
aminers are to be Administrative Law Judges. See 20 C.F.R. § 702.332
(1975).
4. Pursuant to Section 921(b)(3) of the new Act, the Benefits
Review Board is authorized to hear appeals by any party in interest
from the Administrative Law Judge’s orders. The Board must base
its decision upon the hearing record and is bound by a “substantial
evidence” standard in its review of findings of fact. Jd.
5. Jurisdiction over these appeals is conferred upon us by Section
921(c) of the new Act. Thereunder, a party aggrieved by a final
order of the Board may obtain review of that order in the Court
of Appeals for the federal judicial circuit in which the employee's
injury occurred.
9
is, of course, whether the Act was expanded far enough
to reach these five injuries. We hold that the Board prop-
erly awarded benefits to two workers who were handling
maritime cargo on shore, as well as to a carpenter who
was fabricating parts for a new ship. However, the Board
misconstrued the Act in extending coverage to the other
two respondents, a shipboard worker who stumbled in
front of his employer’s office a mile from the ship, and an
employee who was helping to tear down a shed in 4 dis-
used marine repair facility.
Not content with merely jousting over the scope of the
revised Act, three of the petitioners have broken ranks
to seek out other casus belli. The petitioners in the Halter
Marine case argue that the Act is unconstitutional if it
covers injuries to shipbuilders on shore. In Pfeiffer, we are
told that the Board violated the petitioners’ right to due
process by the method in which it awarded a fee to the
claimant’s attorney. The Ayers Steamship petitioners enter
the lists with a plan to split the enemy forces; they claim
that the Director is not a proper respondent in these ap-
peals. As will hereinafter appear, we reject all of these
additional contentions.
II
SCOPE OF THE 1972 AMENDMENTS
Of the many changes which Congress made in the Act
in 1972, we are here concerned with only one: the ex-
tension of the Act’s coverage inland to reach certain mari-
time-related injuries. Under the prior Act, coverage was
overwhelmingly situs-oriented. As a general rule, an em-
ployee’s injury was compensable if it occurred “upon the
navigable waters of the United States (including any dry
10
dock) and if recovery for the disability or death through
workmen’s compensation proceedings may not validly be
provided by State law .. .”” Interpretation of this pro-
vision was immensely complicated by a judicially created
doctrine under which some “maritime but local” injuries
could be covered by both state and federal compensation
schemes. See, e.g., Calbeck v. Travelers Ins. Co., 370
U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962); Davis v.
Department of Labor, 317 U.S. 249, 63 S.Ct. 225, 87
L.Ed. 246 (1942). However, the Supreme Court made it
clear that, whatever the exact parameters of the “maritime
but local” doctrine, the federal Act would generally be
confined to injuries occurring over the waters. Thus, in
Nacirema Operating Co. v. Johnson, 396 U.S. 212, 90
S.Ct. 347, 24 L.Ed.2d 371 (1969), the Court held that
the Act did not cover injuries to longshoremen who were
working on a pier permanently affixed to the shore.
Coverage was denied despite the fact that the workers
had been injured while loading and unloading ships, an
employment as maritime in nature as any land-based
employment could be.’ The inequities of this “water’s
edge” division between covered and noncovered work
were a major factor behind the decision to expand the
scope of the Act.*
6. See former 33 U.S.C. § 903(a). There were certain exemptions
from coverage, all of which have been carried over into the new Act.
See id., as amended, § 903(a)(1) (masters and crew members; per-
sons engaged by masters to service vessels under eighteen tons net) ;
id. §903(a)(2) (government employees); id. §903(b) (injuries
caused solely by the employee’s intoxication or willful conduct).
7. Further underscoring the maritime context of these injuries
was the fact that the injuries were caused by ships’ cranes which
had swung out of control. 396 U.S. at 213-14, 90 S.Ct. 347.
8. See H.R. No. 92-1441, 1972 U.S. Code Congressional & Ad-
ministrative News at 4707.
11
[1] Two of the Act’s new sections are pertinent to the
present appeals.° The first of these defines the status
which the affected employee must occupy to bring his in-
jury within the Act’s coverage:
The term “employee” means any person engaged in
maritime employment, including any longshoreman
or other person engaged in longshoring operations,
and any harborworker including a ship repairman,
shipbuilder, and shipbreaker . . . 33 U.S.C. § 902(3).
The other provision describes the situs where a covered
injury must occur:
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 injury
occurring upon the navigable waters of the United
States (including any adjoining pier, wharf, dry dock,
terminal, building way, marine railway or other ad-
joining area customarily used by an employer in
loading unloading, repairing, or building a vessel).
Id. § 903(a).
From these statutes, the general thrust of the new Act’s
coverage is clear. Congress has replaced the old “water's
9. None of the employers denies that it is an “employer” within
the meaning of new Section 902(4):
The term “employer” means an employer any of whose em-
ployees are employed in maritime employment, in whole or in
part, upon the navigable waters of the United States (including
any adjoining pier, wharf, dry dock, terminal, building way,
marine railway, or other adjoining area customarily used by an
employer in loading, unloading, repairing, or building a vessel).
In any event, it is clear that this section requires merely that an
employer have at least one employee engaged in “maritime employ-
ment” (the requirement of new Section 902(3)’s definition of an
‘“employee’’) on the situs defined in new Section 903(a). Thus, if a
claimant can satisfy Sections 902(3) and 903(a), his employer is
automatically brought within Section 902(4).
12
edge” analysis with a two-part test which requires (1)
that the claimant have been engaged in “maritime em-
ployment” and (2) that the injury have taken place upon
the situs specified in the Act.
[2,3] The Act’s definition of “maritime employment”
is the focus of most of the legal controversy which rages
in the parties’ voluminous briefs. Unfortunately, much
of this learned debate is of little relevance, if any, to the
cases now before this Court. Counsel have drawn our at-
tention to a host of pre-1972 decisions which discussed
the meaning of the term “maritime employment” as
used in the former Act. See, e.g., Pennsylvania R.R. v.
O'Rourke, 344 U.S. 334, 73 S.Ct. 302, 97 L.Ed 367
(1953); Nalco Chemical Corp. v. Shea, 419 F.2d 572
(Sth Cir. 1969). Under the old Act, as under the present
one, an employer was liable if he had one or more em-
ployees engaged in “maritime employment”.’’ However,
judicial constructions of the pre-1972 Act were necesssar-
ily limited by the “water’s edge” approach of that statute."
For this reason, these older cases simply do not speak to
the issue of what land-based employment is sufficiently
“maritime” to be covered by the new Act.’* Fortunately,
10. Compare old 33 U.S.C. § 902(4) with new 33 U.S.C. § 902(4).
As we have indicated, supra note 9, the only way to read the new
Act consistently is to give the words “maritime employment” in new
Section 902(4) the same meaning as in new Section 902(3).
11. Not only, as noted was the “water’s edge” doctrine applied
to the situs of the claimant’s injury, but the “maritime employment”
of the employer’s workers was required to take place “upon the
navigable waters of the United States (including any dry dock)”.
See old 33 U.S.C. § 902(4).
12. The commendable diligence of counsel has uncovered some
scattered dicta which might be read as suggesting the general nature
of “maritime” work. See, e. g., Pennsylvania R. R. v. O’Rourke, supra,
13
Congress itself has answered that question. The terms of
the statute allow coverage for an injured employee who was
working as a longshoreman, a ship repairman, a ship-
builder, or a shipbreaker.'* The legislative history tells us
that an injured employee will be covered if he was “en-
gaged in loading, unloading, repairing, or building a ves-
sel,”"* but will not be covered merely because he was in-
juved in the area defined by new Section 903(a).’° In light
of these indicia of Congressional intent, we must agree
with the Court of Appeals for the Ninth Circuit that
the new Act requires such a claimant to have been engaged
in the work of loading, etc. at the time of the injury.
Weyerhaeuser Co. v. Gilmore, 528 F.2d 957, 960 (9th
Cir. 1975). We therefore reject respondents’ contention
that an employee’s general job classification (such as
“longshoreman” or “ship repairman”) will bring him with-
in the Act’s coverage regardless of the nature of the work
which he was performing when he was injured.’® In its
344 U.S. at 339-40, 73 S.Ct. 302. These occasional pronouncements
by the courts have, at best, only the most tenuous connection with
the 1972 Amendment’s extension of coverage to shoreside injuries.
In comparison with the statutory language itself and the legislative
history, the timeworn dicta which are urged upon us are entitled
to little weight. Also, we noie that none of the instant appeals
involves an injury which occurred over the waters. Therefore, we
need not, and do not, decide if the new Act made any changes
in the coverage of such injuries.
13. 33 U.S.C. § 902(3).
14. In light of the statutory language, we regard the omission
of shipbreaking from this passage as inadvertent.
15. “The Committee does not intend to cover employees who are
not engaged in loading, unloading, repairing, or building a vessel,
just because they are injured in an area adjoining navigable waters
used for such activity.” H.R. No. 92-1441, 1972 U.S. Code Con-
gressional & Administrative News, at 4708.
16. For the same reason we also cannot accept the notion that
~ the official name of an employee’s union or the language of a union’s
14
reports, Congress has also indicated the extent to which
coverage should be granted to persons who are not them-
selves loading, unloading, repairing, building, or breaking
a vessel but who are nevertheless performing closely re-
lated functions. Thus, the House Report states that a
checker would be performing covered work if he was
“directly involved in the loading or unloading func-
tions . . . ”."’ Our holding is that an injured worker is a
covered “employee” if at the time of his injury (a) he
was performing the work of loading, unloading, repairing,
building, or breaking a vessel, or (b) although he was not
actually carrying out these specified functions, he was
“directly involved” in such work.**
[4,5] We specifically reject a theory which petitioners
in the Pfeiffer and Ayers Steamship cases advance as the
proper rule for cargo handling operations. They claim
that the Act’s coverage depends upon whether cargo has
reached its shoreside “point of rest”, as that term is used
in the maritime industry.’® To these petitioners, men who
jurisdictional agreement is dispositive of the issue of coverage. It is
the employee’s work at the time of the injury which controls.
17. Jd. (Emphasis supplied.) The same report also states that
clerical employees who do not “participate in the loading or un-
loading of cargo” would not be covered by the new Act. /d.
18. See Gorman, The Longshorcmen’s and Harbor Workers’ Com-
pensation Act—-After. the 1972 Amendments, 6 Journal of Maritime
Law and Commerce 1, 10 (1974). By this holding, we do not mean
to suggest that future cases may not bring to light other types of
covered work which cannot be characterized as loading, unloading,
repairing, building, or breaking, and which are not “directly involved”
with these five types of work, but which nevertheless are sufficiently
similar to fall within the Congressional scheme. No such additional
category of covered work appears in the cases before us, but we
will not foreclose the possibility of such categories arising in future
litigation.
19. The Federal Maritime Commission has defined the “point of
rest” as follows:
15
are handling cargo on its way to a vessel are not covered
by the Act until that cargo reaches its last marshaling
area prior to being taken on board a ship. Similarly, un-
der this theory men who are unloading cargo from ships
are performing covered work only until they reach the
first marshaling area for cargo on shore. We are unable
to find any support for such a hypertechnica! construction
of the 1972 Amendments.”’ In our view if Congress had
wished to adopt the “point of rest” as the test for coverage,
it would have made that intention clear. As it is, the
“point of rest” analysis is to be found neither in the statute
itself nor in the legislative history. The closest approach
to such a test appears in the following passage from the
House Report:
To take a typical example, cargo, whether in break
bulk or containerized form, is typically unloaded
from the ship and immediately transported to a
storage or holding area on the pier, wharf, or termi-
nal adjoining navigable waters. The employees who
perform this work would be covered under the vill
for injuries sustained by them over the navigable
waters or on the adjoining land area . . . [E]mploy-
ees whose responsibility is only to pick up stored
cargo for further trans-shipment would not be cov-
ered . . . H.R.No.92—1441, 1972 U.S.Code Con-
gressional & Administrative News, at 4708.
For the purpose of this section, “point of rest” shall be defined
as that area on the terminal facility which is assigned for the
receipt of inbound cargo from the ship and from which inbound
cargo may be delivered to the consignee, and that area which
is assigned for the receipt of outbound cargo from shippers for
vessel loading. 46 C.F.R. § 533.6(c) (1975).
20. A narrowly technical construction of the Longshoremen’s and
Harbor Workers’ Compensation Act has traditionally been disfavored.
See, e. g., Luckenbach S.S. Co. v. Norton, 106 F.2d 137, 138 (3d
Cir. 1939).
16
In our opinion, these remarks establish no more than that
workers who bring cargo to a storage area from on board
ship are covered, while those persons (generally truckers
or railroad personnel) who merely receive cargo and
transport it inland are not covered. The House Committee
in this passage did not even mention those employees
who handle cargo between the first holding area and
the cargo’s departure via land transportation. It is pre-
cisely the treatment of this intermediate group of workers
with which we are here concerned, and this passage is
totally silent as to them. Elsewhere, as we have seen, the
Committee indicated that employees who are directly in-
volved in loading or unloading will be covered by the
new Act. In the absence of explicit language which would
establish a “point of rest” dividing line for shoreside cargo
handlers, we will apply this general test to them as well.”
21. In deciding how to interpret the Amendments and their
legislative history, we have :cmerabered that this Act is to be liberally
construed in favor of injured employees. See Voris v. Eikel, 346
US. 328, 333, 74 S.Ct. 88, 98 L.Ed. 5 (1953). In our view, this
principle requires us to resolve doubts as to the new Act’s coverage
in favor of a particular group of workers such as cargo handlers
landward of the ‘“‘point of rest”’.
Brief mention should also be made of the House Committee’s
announced intention “to permit a uniform compensation system to
apply to employees who would otherwise be covered by this Act
for part of their activity”, H.R. No. 92-1441, supra, at 4708. We
agree that here the Committee was speaking of one inequity of the
old ‘‘water’s edge” approach, under which cargo handlers would walk
in and out of coverage as they moved between ship and shore.
However, we see no reason to treat this statement as a comprehensive
description of the new Act’s coverage, with the result that only
those workers who spend part of their days upon the waters would
be covered. In this passage, the Committee was merely addressing
itself to one anomaly which it wished to eliminate. The same para-
graph clearly states that checkers would be covered by the new Act,
and the Committee gave no indication that coverage would depend
on whether the checkers went on board ship. The test, rather, was
to be whether they were “directly involved in the loading or unloading
functions’. /d.
17
[6] Our interpretation of the new situs provision follows
the same general lines as our construction of Section
902(3). Just as we choose to ignore the labels which an
employer or a union has bestowed upon an employee,
and instead rely upon the employee’s work function at the
time of the injury, likewise we will look past an area's
formal nomenclature and examine the facts to see if the
situs is one “customarily used by an employer in loading,
unloading, repairing or building a vessel.” The clear stat-
utory scheme is to cover employees who are injured while
performing certain types of work in an area which is
customarily used for such work. Whether or not an em-
ployer or local custom has decided to designate an area
as a “terminal”, for example, is not dispositive of the situs
issue. We will require that a putative situs actually be
used for loading, unloading, or one of the other functions
specified in the Act. As with the “maritime employment”
test, we also interpret the Act as requiring that the situs
meet the statutory requirements as of the time of the
injury. It will not suffice if the area was so used only in
the past, or if such uses are merely contemplated for the
future.
Ill
THE COVERAGE ISSUE IN THESE APPEALS
[7-9] With the general tests for the amended Act's
coverage in mind, we now turn to the specific facts of
each of the present cases. In deciding each appeal, we
must remember that the Act is to be liberally construed in
favor of injured workers, see Voris v. Eikel, 346 U.S.
328, 333, 74 S.Ct. 88, 98 L.Ed. 5 (1953). We are also
bound by a statutory presumption that an individual claim
18
comes within the Act’s coverage. 33 U.S.C. §290(a).
Finally, we will not set aside an award made by the
Benefits Review Board so long as it is supported by sub-
stantial evidence on the record considered as a whole,
and so long as there is a reasonable legal basis for the
Board’s conclusion. See O'Leary v. Brown-Pacific-Maxon,
Inc., 340 U.S. 504, 508, 71 S.Ct. 470, 95 L.Ed. 403
(1951); Cardillo v. Liberty Mutual Ins. Co., 330 U.S.
469, 478-79, 67 S.Ct. 801, 91 L.Ed. 1028 (1947).”"
[10] A. No. 75-1659. Herbert Perdue was employed
by Jacksonville Shipyards, Inc., as a shipfitter. On Febru-
ary 2, 1973, he performed repair work for a twelve-hour
shift (7:00 a.m. to 7:00 p.m.) aboard an aircraft carrier
which was berthed at the Mayport Naval Station in
Jacksonville, Florida. At the end of the working day,
Perdue took a bus to an office which his employer main-
tained approximately one mile from the carrier. The bus
was provided by Perdue’s employer, and the office was
the place where Perdue had to “punch out” on a time
clock before and after each shift. While alighting from
the bus near the office, Perdue stumbled and injured his
left knee in a fall upon the pavement. In our view, the
Board should have sustained the Administrative Law
Judge’s determination that Perdue was not injured on a
situs defined by new Section 903(a). There is literally
nothing in the record to support a conclusion that the
employer’s office was on the navigable waters or in an
“adjoining area customarily used by an employer in load-
ing, unloading, repairing, or building a vessel.” The vessel
22. Although these cases were decided under the old Act, which
provided for administrative adjudication by a deputy commissioner
and for judicial review by a United States District Court, petitioners
have offered no reason why the standard of review should be different
under the present Act.
19
upon which Perdue was working was a mile away, and the
“punch out” office was a purely clerical and administrative
post separated from the waters by other facilities which
likewise were not used for loading, unloading, ship repair,
or shipbuilding.** Under no reasonable construction of
the Act did this area either “adjoin” the waters or carry
out any of the functions specified in Section 903(a).
We reject the argument that the new Act covers every
point in a large marine facility where a ship repairman
might go at his employer's direction. In the words of the
Administrative Law Judge below, the locus of this injury
had “nothing to do with loading, unloading, building or
repairing vessels” (Appendix at 19). Therefore we must
reverse the Board’s determination that Perdue is entitled
to compensation under the new Act.
[11] RB. No. 75-2833. Charles W. Skipper was another
employee of Jacksonville Shipyards, Inc. For many years,
he had been primarily engaged in ship repair work as a
welder and burner. On the morning of February 8, 1974,
Skipper reported for work as usual. However, instead of
being assigned to his normal duties as a ship repairman,
he was sent across the St. John’s River to a disused marine
facility called the Southside Yard. There, he was to assist
in tearing down a building which had formerly housed
a fabrication shop. The purpose of dismantling this struc-
ture was to salvage some steel for use in constructing a
plant which would manufacture sandblasting equipment.
The activities of Jacksonville Shipyards, Inc. are quite
diversified, and the contemplated plant was a new business
venture. Skipper himself had previously from time to time
been assigned work, such as this salvage operation, which
23. The parties have stipulated that the nearest body of water
was 500 yards away from the office.
20
did not involve ship repair. On the day in question,
Skipper was injured when some beams fell from the
structure during the dismantling process and several steel
fragments struck his forehead. At the time of the injury,
all of the shops in the Southside Yard were closed, and
no repair or fabrication work was being carried out there.
Occasionally, ships would still be tied up at the pier in
the Southside Yard, and repairmen or other workers
would be sent from the employer’s active facilities to
work on these ships. However, such work would have
no relationship to the various disused facilities in the
Southside Yard, including the former fabrication shop
in question, which was located between one hundred fifty
and two hundred feet from the water. On these facts,
we perceive no basis for the conclusion below that Skip-
per’s injury is compensable under the new Act. Under no
reasonable view was Skipper performing ship repair work
at the time of his injury, nor was he carrying out any
other of the types of work which the statute specifies as
“maritime employment”. We further hold tuat this salvage
gang was not engaged in any work sufficiently similar to
the statutory categories to be seen as a type of shoreside
employment which was fairly within Congress’ intent
despite not being named in the 1972 Amendments. As
we have already indicated, we refuse to attach controlling
weight to an employee’s regular job classification. There-
fore, we will not consider Skipper a “ship repairman”
under Section 902(3) merely because he normally per-
formed ship repair work. We look only to his duties at
the time of the injury, and these were decidedly not within
the contemplation of the statute.
[12] It is equally clear that Skipper was not injured
on a situs as defined in new Section 903(a). We have
21
held that under Section 903(a) a covered situs must be
“customarily used by an employer in loading, unloading,
repairing, or building a vessel” as of the time of the injury.
In this case, the Southside Yard shops had been inactive
for approximately a year when Skipper was injured. No
repair work or any other work specified by the statute
was being performed in these buildings. Therefore, we
must conclude that the former shops had lost their status
as ship repair or shipbuilding facilities, and that Skipper
was not injured on a Section 903(a) situs.
Because we reverse the administrative finding of cover-
age under the Act, we need not reach the other issues
discussed by the parties, such as the propricty of the
award which Skipper received for a facial scar and the
various requests which the claimant’s lawyers have made
for attorneys’ fees.
[13] C. No. 75-2289. In this case, the parties agree
that the situs of the injury was within the contemplation
of new Scction 903(a), and the only dispute is whether
the claimant was performing covered work. On April 12,
1973, Diverson Ford was injured at the port of Beaumont,
Texas, while helping to secure a military vehicle to a
railway flat-car in preparation for its transportation in-
land. The vehicle in question had arrived either two or
seventeen days prior to the date of the accident. Since
then, it had remained in the immediate waterfront area.
On the day before the injury, a gantry crane at the water's
edge had lifted the vehicles onto the flat cars. Ford’s work
of fastening the vehicles to the flat cars was therefore the
last step in transferring this cargo from sea to land trans-
portation. On the other hand, the vehicles were not moved
directly from the ship to the flat cars but instead were
taken first to a storage area. There is no dispute, then,
22
that the “point of rest” for these vehicles had intervened
since their arrival in port. However, we have today chosen
not to adopt the “point of rest” theory of coverage for
shoreside cargo handlers. In addition to the general reasons
which we have already given for our conclusion, we can-
not overlook the injustices which the proposed test would
create in a case like this one. Petitioners apparently
concede that Ford would be covered if his work were
part of a continuous operation which began with the
cargo’s departure from a ship’s hold. As respondents cor-
rectly point out, we are being asked to deny coverage
purely because of a discontinuity in time created by the
cargo’s having been stored for a while along the shore.
In contrast, under the test ‘which we have adopted a
shoreside worker like Ford would be covered if he was
directly involved in “longshoring operations” such as un-
loading a ship. The work which Ford was performing
was evidently an integral part of the process of moving
maritime cargo from a ship to land transportation. Ac-
cordingly, we perceive an ample basis for the Board's
determination that Ford was performing covered work,
and we therefore affirm that decision.**
[14] D. No. 75-2317. On July 30, 1973, John L.
Nulty was employed as a carpenter at a shipyard in Moss
Point, Mississippi. At the time of his injury, Nulty was
building a piece of woodwork which was to be installed
in a new ship that had been launched but not yet com-
missioned, The ship was berthed about 300 feet from the
24. Petitioners’ briefs are rich in references to the title of Ford’s
union (which was the “warehousemen’s” rather than the “longshore-
men’s” union) and to the jurisdictional agreement between the two
unions. As we have already indicated, we do not regard such matters
as dispositive; instead, we look to the duties which a claimant was
performing at the time of his injury.
23
fabrication ship where Nuity was working. The part which
Nulty was fabricating was designed to hold a spare wheel
on board the new ship. Most of Nulty’s work was per-
formed in the shop, although at times he would go on
board a vessel to take measurements, or to install or
repair some woodwork. The parties agree that a fellow
employee known as a “shipfitter” would have picked up
and installed the item which Nulty was building when
he was injured. Under these facts, the Administrative
Law Judge and the Benefits Review Board found that
Nulty was working as a “shipbuilder” at the time of his
injury and thus satisfied Section 902(3)’s definition of
covered work. In our view, the only reasonable conclusion
is that Nulty was directly involved in an ongoing ship-
building operation. Under the test which we have adopted,
then, Nulty is entitled to compensation under the new Act.
We accordingly affirm the Board’s finding of coverage.
[15] E. No. 75-4112. On May 2, 1973, Will Bryant
was injured while working as a “cotton header” in a ware-
house immediately adjacent to a pier in Galveston, Texas.
At the port of Galveston, loads of cotton are first de-
posited at various shoreside warehouses by the inland
shippers. The cotton is then placed upon dray wagons
and taken to pier warehouses such as the one where
Bryant was injured. The work performed by Bryant and
other “cotton headers” is to unload the bales of cotton
and stack them in pier warehouses. Two local unions,
known to many as “cotton header’s” and “longshoremen’s”
locals, have strictly divided waterfront operations between
them. Generally, the cotton remains in these warehouses
until other employees from the “longshoremen’s” union
take it on board ship. This storage period may last from
less than one day to several weeks, although the average
24
interval is about one week. At times, the cotton will be
moved from one pier warehouse to another before being
taken to a ship. In such cases, dray wagons are again
used to carry the cotton, and “cotton headers” unload
these wagons at the receiving warehouse. Occasionally,
the cotton is moved directiy from a dray wagon to a ship,
in which event the work is performed solely by “long-
shoremen”. The cotton which Bryant was handling at the
time of his injury remained in the same warehouse for
five days before “longshoremen” arrived to take the cargo
aboard a vessel. On these facts, we affirm the Board's
conclusion that the injury sustained by Bryant is within
the Act’s coverage. The situs was a pier-side warehouse
in which cotton is stored temporarily before being taken
on board ships. Usually, the cargo is taken directly from
the warehouse to a ship. It is clear that Bryant was work-
ing on a waterfront area “customarily used by an employer
in loading . . . a vessel”, and that therefore the require-
ments of Section 903(a) are met. We also will not set
aside the Board’s determination that Bryant was per-
forming the work of an “employee” as defined in Section
902(3). We have already noted the established principle
of liberal construction of this Act, and the statutory pre-
sumption that a claim is within the Act’s coverage. Also,
we are bound to respect the Board’s conclusions if they
are supported by the record and if they have a reasonable
legal basis. In view of the limited nature of our review,
we cannot say that the Board erred in defining Bryant’s
work status. As we here reiterate, we reject the notion
that a “point of rest” such as the pier-side warehouse in
this case marks the division between covered and un-
covered work. We have no doubt that Bryant would be
directly involved in “longshoring operations” if, instead
25
of setting the cargo down, he had handed it to a “long-
shoreman” for immediate loading on board a ship. The
brief discontinuity in time created by the cotton’s tempo-
rary storage did not alter the essential nature of Bryant's
work, which was an integral part of the ongoing process
of moving cargo between land transportation and a ship.
Clearly, there is adequate support for a conclusion that
Bryant was directly involved in “longshoring operations”
and therefore falls within the terms of Section 902(3).
Thus, we affirm the Board’s decision that the injury in
this case is covered by the new Act.”®
IV
A CONSTITUTIONAL QUESTION
[16, 17] It is earnestly argued by Halter Marine Fabri-
cators, Inc., and its insurance carrier that the new Act
is unconstitutional insofar as it extends coverage to ship-
building employees who are injured on land. We are re-
minded that traditionally a contract to build a ship has
not been considered to be within the admiralty jurisdic-
tion,’ and that admiralty has traditionally included only
those torts which occur upon the waters.’ In the Halter
Marine case, the employce was injured while working on
land in furtherance of a shipbuilding operation. Therefore,
we are told, Congress has exceeded the fixed boundaries
25. Once again, we refuse to base our decision upon the desig-
nations of the two waterfront unions as “cotton header’s” and
“longshoremen’s” or upon the terms of their jurisdictional agreements.
Compare note 24, supra.
26. See, e. g., Thames Towboat Co. v. The Francis McDonald,
254 U.S. 242, 243, 41 S.Ct. 65, 65 L.Ed. 245 (1920).
27. See, e. g., Executive Jet Aviation, Inc. v. City of Cleveland,
409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972).
26
of admiralty jurisdiction by covering work under a non-
maritime contract which is performed on a situs outside
the scope of traditional tort jurisdiction. In essense, the
argument is that the sum of traditional admiralty tort
and contract jurisdiction defines the absolute limits within
which Congress may legislate under the Admiralty
Clause.** We disagree with this proposition. No authority
supports the notion that, in enacting a uniform compensa-
tion scheme for waterfront employees, Congress must find
a “contract” or “tort” peg upon which to hang its legisla-
tion. The true analysis to be applied to such statutes is
quite different. It must begin with the longstanding judicial
recognition of Congress’ broad powers to expand the
reach of admiralty jurisdiction. Contrary to the impression
created by petitioners’ briefs, such judicially authorized
expansion has often been geographical in nature. See,
e. g., The Genesee Chief, 12 How. 443, 13 L.Ed. 1058
(1851), overruling The Thomas Jefferson, 10 Wheat.
428, 6 L.Ed. 358 (1825) (abandoning former limitation
of admiralty jurisdiction to the tidewaters). The cases
which approve the many changes which Congress has
made in admiralty jurisdiction are replete with statements
such as the following:
The authority of the Congress to enact legislation
of this nature [the Ship Mortgage Act, 46 U.S.C.
§§ 911, et seq.] was not limited by previous deci-
sions as to the extent of the admiralty jurisdiction.
We have had abundant reason to realize that our
28. Art. ITI, Section 2 of the Constitution extends the federal
judicial power “to all Cases of admiralty and maritime jurisdiction
_. 2’ This clause has always been construed as empowering Congress
to legislate in maritime matters. See, e.g., Romero v. International
Terminal Operating Co., 358 U.S. 354, 361, 79 S.Ct. 468, 3 L.Ed.2d
368 (1959).
27
experience and new conditions give rise to new con-
ceptions of maritime concerns. These may require
that former criteria of jurisdiction be abandoned . . .
Detroit Trust Co. v. The Thomas Barlum, 293 U.S.
21, 52, 55 S.Ct. 31, 41, 79 L.Ed. 176 (1934).
The Supreme Court has also consistently followed the
view that this Congressional power “permits of the ex-
ercise of a wide discretion”. Panama R.R. v. Johnson,
264 U.S. 375, 386, 44 S.Ct. 391, 394, 68 L.Ed. 748
(1924). Our conclusion is that, in the exercise of its
discretion, Congress could properly determine that “new
conceptions of maritime concerns” justified the extension
of compensation coverage to workers in the immediate
waterfront area who participate in an ongoing shipbuild-
ing operation. As the legislative history makes clear,
Congress was concerned that under the former Act mari-
time workers were covered over the waters but not covered
while performing similar or related work on shore. The
inequities of the pre-1972 Act in this regard are obvious,
and we feel that this concern was a legitimate reason for
Congress to exercise its discretion. We also feel that this
concern was a “inaritime” one within the meaning of the
Admiralty Clause. We have already indicated that, in
defining “maritime” concerns, we will not be limited by
the rules which apply to tort and contract litigation. In
the present case, we are not considering whether Congress
would authorize suits upon shipbuilding contracts or
whether land-based torts could be made actionable by an
admiralty statute.** We deal only with the case before us,
and in our view Congress could reasonably have felt that
shipbuilding employees beside the navigable waters were
performing a sufficiently maritime function to be covered
29. See 1A Benedict on Admiralty § 94, at 5-15 (6th ed. 1973).
28
by a revamped harbor workers’ compensation statute.
We therefore cannot conclude that Congress exceeded its
. 30
broad discretion by extending coverage to such work.
Vv
DIRECTOR A PROPER RESPONDENT
[18] This issue is before the Court in rather an odd
fashion. In their main brief on appeal, the Ayers Steamship
petitioners allege that the Director of the Office of Work-
ers’ Compensation Programs, United States Department of
Labor, is not a proper respondent in this Court, although
he could appear as amicus curiae. We decline to consider
the merits of this cntention. First, we note that petitioners
have never moved to dismiss the Director as a respondent.
In our view, the relief which petitioners seek—dismissal
of the Director as a party and addition of him as amicus
curiae—is properly requested by a motion pursuant to
Rule 27 of the Federal Rules of Appellate Procedure.
Under that Rule, a motion is the appropriate vehicle for
making “an application for an order or other relief”, a
category which clearly includes the request which peti-
tioners have made for the first time in their brief. Further-
more, even assuming that petitioners have adequately
raised this point, we cannot overlook the fact that in the
two Jacksonville Shipyards cases another panel of this
Court has granted motions by the Director to be added
as a party respondent. These legal determinations that the
Director may properly appear as a respondent must be
respected by this Court. As a general rule, one panel can-
30. Because of our disposition of this issue, we need not Teach
the questions of whether the 1972 Amendments were an exercise of
Congress’ power under the Commerce Clause as well as under the
Admiralty Clause.
29
not overrule the precedents set by another panel, absent
some intervening factor such as a new controlling decision
of the Supreme Court. See Davis v. Estelle, 529 F.2d
437, 441 (Sth Cir. 1976). No such factor is present in
this case, and we will therefore allow the Director to
remain before this Court as a respondent.
VI
DUE PROCESS
[19, 20] In the Pfeiffer case, the Benefits Review Board
awarded an attorney’s fee to counsel for the successful
claimant. The fee covered only the work which was per-
formed before the Board, and the manner of its award
was as follows. Pursuant to the applicable regulation,”
counsel presented his request for an attorney’s fee, sup-
ported by a complete statement of the services which had
been performed. Finding a fee of $1,000 to be “fair and
reasonable for the work done in connection with these
appeals”, the Board approved an award in that amount,
remanding the case to the Administrative Law Judge for
determination of a fee for counsel’s services at that level.
Petitioners opposed the award, arguing that counsel -had
not “properly proved” the reasonableness of the fee and
that petitioners should have an opportunity to offer evi-
dence and to cross-examine counsel on the amount of
his fee. The evidentiary hearing which they requested was
alleged to be a requirement of the Fifth Amendment’s
Due Process Clause. The board rejected these arguments,
and so do we. Government officials are, of course, re-
quired to minimize the risks of error and unfairness in
31. 20 C.F.R. § 702.132 (1975). The statutory basis for this
regulation is 33 U.S.C. §§$ 928(a) & (c), as amended.
30
the procedures by which one is deprived of life, liberty,
or property. See, e. g., Goss v. Lopez, 419 U.S. 565, 581,
95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Mitchell v. W. T.
Grant Co., 416 U.S. 600, 609-10, 618, 94 S.Ct. 1895,
40 L.Ed.2d 406 (1974). We feel that these risks were
adequately minimized by the procedures which the Board
followed. The Board was clearly able to evaluate the
services which counsel performed before it. It was the
Board which read counsel’s briefs and observed his repre-
sentation of the claimant in the administrative appeal.
Thus, the fee which the Board granted was carefully
limited to those services of which it had first-hand know}l-
edge. Especially in view of the extremely generalized
nature of petitioners’ attack upon the fee’s reasonableness,
we cannot say that disposing of petitioners’ objections
without an evidentiary hearing was a violation of the
Due Process Clause.
Vil
CONCLUSION
For the foregoing reasons, the decisions of the Benefits
Review Board in Nos. 75-1659 and 75-2833 are RE-
VERSED. The Board’s decisions in Nos. 75-2289, 75-
2317 and 75-4112 are AFFIRMED in all respects.
31
APPENDIX B
U.S. DEPARTMENT OF LABOR
Office of Administrative Law Judges
WASHINGTON, D.C. 20210
Case No. 74—LHCA—181
Formerly Case No. 8—18874
In the Matter of
DIVERSON FORD, Claimant
v.
P. C. PFEIFFER COMPANY, Employer
TEXAS EMPLOYERS’ INSURANCE
ASSOCIATION, Carrier
J. Weldon Granger, Esq.
Dowman, Jones, Musslewhite and Schechter
1200 Houston First Savings Bldg.
711 Fannin
Houston, Texas 77002
For the Claimant
W. Robins Brice, Esq.
Royston, Rayzor, Cook & Vickery
3710 One Shell Plaza
Houston, Texas 77002
For the Employer
and Carrier
32
Joshua T. Gillelan, Esq.
Solicitor of Labor
U. S. Department of Labor
Washington, D.C. 20210
For the Director, Office of Workmen’s Com-
pensation Programs
Before: FRANK W. VANDERHEYDEN
Administrative Law Judge
DECISION AND ORDER
Statement of the Case
Pursuant to the provisions of the Longshoremen’s and
Harbor Workers’ Compensataion Act, 44 Stat. 1424, as
amended, 33 U.S.C. 901, et seg. (hereinafter Act and the
Rules and Regulations promulgated thereunder, a hearing
in the subject matter was held before me on June 12,
1974, in Beaumont, Texas. All parties were represented
by counsel. A designee of the Solicitor of Labor appeared
and participated on behalf of the Director of the Office
of Workmens’ Compensation Programs pursuant to 20
CFR 702.333(b). At the hearing no witnesses were
called. By stipulation of all parties including, but not
limited to, the Claimant, the case was submitted on a
document entitled Agreed Statement of Facts and stipula-
tions (JX-Joint Exhibit-1) which was received into evi-
dence (hereinafter sometimes referred to as Stipulation)
and oral stipulations. The parties were given a full op-
portunity to be heard and to make oral arguments. There-
after, the parties filed proposed findings and briefs which
were duly considered. Immediately after the hearing,
accompanied by all counsel, I went to City Dock No. 2,
33
Port of Beaumont, and reviewed the area in question. Also
subsequent to the hearing, I requested counsel for the
parties to clarify an aspect of the Claimant’s employment
which was done by another document designated as
Supplemental Agreed Statement of Facts and Stipulations
(JX 2: hereinafter sometimes referred to as a Supple-
mental Stipulation).
The single issue in this matter is whether or not the
claim for compensation comes within the purview of the
Act. The Claimant and the Director of the Office of
Workmen’s Compensation Programs (hereinafter Direct-
or) take the position, that on the facts set forth below,
the Claimant is an “employee” for reason that he meets
the definition of such in the Act, with additional support
for this to be found in the legislative history. For the
same reasons, P.C. Pfeiffer Company and Texas Employ-
ers’ Insurance Group (referred collectively hereinafter as
Employer) contend that the Claimant is not an “em-
ployee.”
Upon the entire record in this case I make the follow-
ing findings of fact, conclusions of law and order:
Facts
The pertinent facts, abstracted from the aforementioned
Stipulations (altered slightly in form only) are as follows:
The Claimant, Diverson Ford, sustained an accidental
injury on April 12, 1973, in the course and scope of his
employment for the Employer, when he struck the tip of
his second (middle) finger, left hand, with a hammer.
The insurance carrier for the Employer’s liability under
workmen’s compensation is the Texas Employers’ Insur-
ance Association. It was agreed that notice of injury was
34
timely given; that claim for compensation was timely filed;
that the claim for compensation was timely controverted;
and that the Employer furnished medical care for the
Claimant.
During the year preceding injury, Claimant had an
average weekly wage of $57.83; that his compensation
rate under the Act, if applicable, would be $57.83 per
week for total disability and $38.56 per week for perma-
nent partial disability. Following the injury Claimant
sustained a period of temporary total disability from April
12, 1973, to May 7, 1973, a period of four weeks. The
Employer paid Claimant compensation for temporary total
disability for four weeks at the weekly rate of $34.52
per week in the total sum of $138.08 under the Work-
men’s Compensation Act of Texas.
The accident which resulted in the injury occurred
between the rails of a gantry crane on City Dock No. 2
at the Port of Beaumont, Texas, which is an open con-
crete apron dock approximately 170 feet in width. The
ganiry crane runs on permanent rails along the edge of
the dock, with two railroad tracks running within the
span of the gantry and thus under the boom. The rail of
the gantry nearest the water is approximately two feet,
seven inches from the edge of the dock, with the distance
between the rails of the gantry being 32 feet, two inches.
This gantry crane is used in the loading and unloading of
vessels, but when no vessel loading or unloading opera-
tions are in progress, it is also used in the loading and
unloading of railroad cars.
As an attachment to the Stipulation, the parties sub-
mitted an aerial photograph of the site in question, desig-
nated as Exhibit 1, which photograph purports to show
—A
35
the location of the gantry crane, the concrete dock apron
and the vehicle storage area, respectively numbered on
the aforementioned Exhibit 1, 2, and 3. Also attached
to the Stipulation was Exhibit 2, which was a sketch of
the pertinent areas mentioned above, which locations were
indicated by the same numbers. At the time the photo-
graphs was taken a vessel was at the berth adjacent to
the crane and vehicles were stored on the dock apron it-
self. Neither of these two noted conditions existed on the
morning of Claimant’s accident.
Claimant was working as a member of a securing gang
out of a warehousemen’s local and was engaged in fasten-
ing military vehicles onto railroad flat cars in the area
between the rails of the gantry crane when the accident
occurred. On the date of Claimant's injury, no vessel
was docked at City Dock No. 2, and the gantry crane
was not in use for any purpose. On the previous day,
the crane had been employed to load heavy military ve-
hicles out of a nearby storage area onto railroad flat
cars for shipment inland. Some of the military vehicles
had been towed or driven from a yard storage area (No.
3 on Exhibits attached to Stipulation) to a spot within the
reach of the gantry crane (No. 2 on Exhibits attached
to Stipulation) and then had been lifted onto the railroad
cars for ultimate transportation to an inland arsenal.
Additionally, Claimant would testify that some, but
not all, of the military vehicles loaded aboard the railroad
cars came from storage on the dock apron itself. The rail-
road cars remained overnight under the gantry crane,
and Claimant was employed on the following morning
as a member of a warehousemer’s gang for the sole pur-
pose of securely fastening the military vehicles to the
36
railroad cars. Claimant would testify further that he had
been employed in the work of bringing the vehicle back
to the crane and placing it on to the rail car on the day
prior to his accident. However, the payroll records of the
Employer indicate that Claimant was not employed at all
on the day prior to his accident. These records indicate
Claimant was employed on April 9 and 10, 1973, in a
warehouseman capacity shifting bagged cargo, that he
was not employed on April 11, 1973, and that he was
employed again in a warehouseman capacity on April 12,
1973, to secure the military vehicles onto the railroad
cars.
The eight vehicles on which the Claimant’s securing
gang were working had been delivered to the Port of
Beaumont on prior occasions and placed in a vehicle
storage area near the concrete apron of City Dock No. 2.
Some, but not all, of the vehicles may have been stored on
the dock apron itself. Seven of the vehicles had been
brought to Beaumont by the Ss THOMAS JEFFERSON,
which sailed from Beaumont on March 26, 1973, and the
vehicles had been discharged to the storage yard on
March 25 and 26, 1973, seventeen days before Claimant's
accident. One of the vehicles had been brought to Beau-
mont by the SS JAMES, which had completed discharging
on the morning of April 10th and had sailed from Beau-
mont on the afternoon of April 10th, 1973, two days
before Claimant’s accident. The exact military vehicle on
which Claimant was working at the moment of his acci-
dent has not been identified but it definitely was one of
the eight described above which had come from the
vehicle storage yard or from the dock storage area itself.
The vehicle on which Claimant was working had been
brought from the storage area and loaded aboard the rail
ee
en ee —— aww
37
flatcar on the day prior to the accident. On the morning
of the accident Claimant was engaged solely in securing
the vehicle to the rail car for shipment inland.
Claimant was employed by the Warehouse Division of
the Employer, a multi-faceted corporation which in its
various capacities performs warehousing services for the
Port of Beaumont, contract stevedoring services for vari-
ous shipping lines and agencies, and shipping agency
services for various shipping lines and vessels. Those
employees of the shipping agency and contracting steve-
doring division of the Employer do have occasion to work
aboard vessels on the navigable waters of the United
States in the course of their employment, but men em-
ployed by the Warehouse Division of the Employer and
working out of the warehousemen’s local union never
go aboard vessels or otherwise work on the navigable
waters of the United States. However, Claimant has
worked in the stevedoring division of the Employer aboard
deep sea vessels as well as for other stevedoring com-
panies within the Port of Beaumont.
An individual obtains warehouse work by reporting to
the warehousemen’s union hall, on the morning he wishes
to work where he may be chosen by the gang foreman
for one of the gangs according to his seniority. If an
individual wishes to do longshore work, he reports to one
of the longshoremen’s union halls, when he may be chosen
by the gang foreman for longshore work which had been
ordered previously from the longshoremen’s local union
business agent by one of the stevedoring companies. There
is nothing to prevent a man who is not chosen by a gang
foreman for warehouse work on a given day from going
to the longshoreman’s union hall in hope of obtaining
a spot from a gang foreman in an unfilled longshore
38
gang. Conversely, a man who is not chosen by a gang
foreman for a longshoring job on any given day may go
to the warehouse local in hope of finding a warehouse-
man’s gang unfilled for that particular day.
The Employer determines the number of gangs of ware-
housemen necessary to perform the ordered work within
the ordered time period, and calls the warehousemen’s
local union business agent to request the necessary number
of gangs for the following day’s work. A warehouse gang
usually consists of five men, including the foreman. An
Employer cannot choose or order any particular gang
foreman or any individual to work in a particular work
classification.
Gangs hired from the longshore locals cannot be as-
signed to do warehousemen’s work, and gangs hired from
the warehouse local cannot be assigned to do longshore-
men’s work. On no single day did Claimant work both as
a warehouseman and as a longshoreman.
In the year prior to his injury on April 12, 1973,
Claimant worked thirty-seven days as a warehouseman
and two days as a longshoreman for the Employer. He
also worked two days as a warehouseman, and three days
as a longshoreman for J. J. Flanagan Company, and two
days as a longshoreman for Biehl and Company. Thus
he worked a total of 39 days as a warehouseman and 7
days as a longshoreman. He also worked for a beer dis-
tributing company and for a construction company in
shoreside employment during the year prior to his iniury.
The Employer’s Warehouse Division is located within
the offices of the Port of Beaumont Navigation District
and thus is physically separated from the stevedoring
division of the Company. All warehouse operation orders
39
are received by the Employer from the Port of Beaumont
on the basis of an exclusive contract between the Em-
ployer and the Port.
When a government cargo is involved, whether inbound
or outbound, from the Port of Beaumont, the Port is
paid for these warehousing services by the Government.
When nonmilitary cargo is involved, the Port is paid for
these warehousing services by the shipper if the cargo is
outbound and by the receiver of the cargo if it is inbound.
The Employer’s stevedoring operations are conducted
directly for shipping agencies or vessels on the basis of
bidding for the particular work to be performed. Whenever
the peculiar nature or size of the cargo or the exigencies
of scheduling require that cargo be loaded directly from
a railroad car or truck to a vessel or directly from
the vessel to a railroad car or truck, such work is juris-
dictionally allocated to the deep sea longshoremen and
is necessarily performed by men working out of the deep
sea local unions for stevedoring companies. No men
working out of the warehousemen’s local unions are in-
volved at all in such loading or unloading operations,
nor are the Employer’s warehouse management personnel
involved in such operations.
The Employer had not performed the stevedoring
services for either vessel which delivered the military
vehicles on which Claimant was working at the time of
his accident. The Employer’s agency division had per-
formed ship’s agent services, but not stevedoring services
for the SS THOMAS JEFFERSON, which sailed from
Beaumont on March 26, 1973, but the Employer had no
connection whatever with the call of the SS JAMES at
the Port of Beaumont which ended April 10, 1973. No
40
employees of the Employer had participated in any way
in the physical removal of the military vehicles from the
ocean going vessels or their transfer to the vehicle storage
yard within the terminal area. The warehouse division of
the Employer was retained to load and prepare the ve-
hicles for shipment inland by rail, at which task Claimant
was employed when the accident occurred resulting in
his injury.
Claimant was working out of Warehousemen’s Local
1316. Men working out of the Warehousemen’s Local at
the warehousemen’s rate of pay never go aboard vessels
and never approach a vessel’s cargo whip. Warehousemen
are never involved in the moving of cargo directly from a
vessel to a point of rest in the warehouse or storage area
or directly from a vessel to railroad cars or trucks and
they are never involved in the moving of cargo from a
warehouse or storage area point of rest directly to a
vessel or from railroad cars or trucks directly to a vessel.
Such activities are allocated jurisdictionally to the men
working out of Longshoremen’s Deep Sea Local Nos. 325,
1306 or 1610. However, counsel were in accord that the
Stipulation shall not be interpreted as being 2n agreement
by the Claimant that he was not engaged in the loading
or unloading of a vessel for purposes of the Act. Rule
No. 1 of the agreement governing the relationship between
the Warehousemen’s Local Union and the warehouse
employers is as follows:
“Warehouse workers shall have jurisdiction over all
warehouse work done by the above named employer
or employers. They shall have jurisdiction over all
carloading and unloading from railroad car to pile
and from pile to car, loading and unloading trucks
and vehicles when under the jurisdiction of the
41
employer, sewing sacks, recooperage, piling dunnage,
segregating and chopping of all freight and bracing
cars when under the jurisdiction of warehouse
locals, sweeping and cleaning of warehouse when
under the jurisdiction of employer and all mechanical
equipment when under the jurisdiction of the em-
ployer.”
The Deep Sea Longshore agreement provides, with
regard to the definition of longshoring work (as opposed
to warehouse, quaymen or other type work), that:
“Longshore work shall constitute the loading and
discharging of all sea-going vessels, railroad cars at
wharf, fitting ships for grain, livestock, building
Magazine rooms or securing cargoes of any kind,
dismantling ships of any kind of fittings, shifting of
cargoes, coal or coke, and all labor connected with
the loading and discharging of ship, * * * The im-
portant distinction being whether or not the freight
is handled once, that is to say, laid down or
ee
These contractual provisions reflect the work arrange-
ment described above, whereby no men working out of the
Warehousemen’s local are engaged in moving cargo di-
rectly to or from ships and no deep sea longshoremen
handle cargo shoreward after it has been laid down or
piled. However, it is expressly agreed, that nothing in
the Stipulation shall preclude Claimant from asserting
that he was engaged in the loading or unloading of a
vessel for purposes of the Act.
It was also stipulated orally between the parties at the
hearing, and I so find, that the Claimant sustained perma-
nent partial disability to the second (middle) finger of
42
his left hand to the extent of twenty percent over a six-
week period of $38.56 per week for a total amount of
$231.36.
I find the foregoing facts have been established by the
entire record in this case.
Opinion
With regard to the issue presented, the pertinent pro-
visions of the Act are as follows:
“Section 902. Definitions
(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 harborworker including a ship
repairman, shipbuilder, and shipbreaker, but such
term does not include a master or member of a crew
of any vessel, or any person engaged in by the
master to load or unload or repair any small vessel
under eighteen tons net.
(4) The term “employer” means an employer any
of whose employees are employed in maritime em-
ployment, in whole or in part, upon the navigable
waters of the United States (including any adjoining
pier, wharf, dry dock, terminal, building way, marine
railway, or other adjoining area customarily used by
an employer in loading and unloading, repairing, or
building a vessel).
Section 903. Coverage
(a) Compensation shall be payable under this chap-
ter in respect of disability or death of an employee,
but only if the disability or death results from an
injury occurring upon the navigable waters of the
United States (including any adjoining pier, wharf,
43
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 ).
The legislative history of the Act concerning the point
in contention discloses the following:
The intent of the Committee is to permit a uniform
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
typically unloaded from the ship and immediately
transported 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, repairing,
or building a vessel, just because they are injured in
an area adjoining navigable waters used for such
activity. Thus, employees whose responsibility 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 par-
ticipate in the loading or unloading of cargo. How-
ever, checkers, for example, who are directly in-
volved in the loading or unloading functions are
covered by the new amendment. Likewise the Com-
mittee 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 part, on
navigable waters, is not covered even if injured on
44
a pier adjoining navigable waters. S. Rep. No. 92-
1125, 92d Cong. 2d Sess. 13; H. Rep. No. 92-1441,
92d Cong. 2d Sess. 10-11 (1972). (emphasis sup-
plied )
One of the main reasons for the 1972 amendments to
the Act is rooted in those decisions which premised
coverage upon situs alone. To illustrate, in Swanson v.
Marra Bros., Inc., 328 U.S. 1 (1946), it was held that
the Act did not cover a longshoreman injured on a dock
even if the injury was caused by a vessel on navigable
waters. This distinction between a longshoreman’s ac-
tivities aboard a vessel and his work on the pier was
reaffirmed in Nacirema Operating Co. v. Johnson, 396
U.S. 212, 224 (1969), which was the Court’s last enunci-
ation on the point before the Act was amended in 1972.
There the Court reiterated that Congress chose the line
separating water from land at the edge of the pier. “The
invitation to move the line landward must be addressed
to Congress, not to this Court”. To correct an apparent
inequity, depending upon the happenstance of where a
longshoreman was injured, Congress, among other changes,
amended the Act to extend the geographic coverage land-
ward. Congress also altered the definition of “employee”
from a negative concept, where certain classes of people
were excluded, to a positive statement setting forth certain
conditions that a claimant must mect. Capsulizing the
character of the changes in Sections 902(2), (3) and
903, it would appear fair to state that while “situs” was
expanded, “status” was constricted. The language of these
amended Sections, coupled with the legislative history,
however, make it palpable that Congress, in its effort to
provide a uniform compensation system, did not intend
to open the floodgates of coverage to amy and all who
met with injury or death upon the newly extended area.
45
There is agreement between the parties, and I so find,
that the Claimant sustained his injury upon an area which
meets the requirements of Section 903(a). The parties
begin with the absolute certainty, however, that the case
hinges completely upon the definition of “employee”.
In the main this is so but for reasons mentioned below
there are other considerations which are of some moment
to the resolution of the issue.
Admittedly, labels attached to a job are not decisive
and it is the nature of the work performed by the Claimant
that is important. Olvera v. Miachalos, 307 F. Supp. 9
(S.D. Tex. 1968). Nonetheless, a job title at times is of
assistance in determining the nature of a claimant’s work.
Also helpful in this respect are the terms of a union
agreement. The contract provisions of the Warehousemen’s
and Deep Sea Longshore Agreement, above mentioned,
and in fact the work performed, disclose a dichotomy
which delineates distinctly the duties between longshore-
men and warehousemen in the Port of Beaumont. The
Deep Sea Longshoremen handle all loading and unloading
of ships and are not involved in any movement of cargo
on land after it has been removed from the ship and taken
to a place storage or rest in a warehouse or terminal
area. The longshoremen in loading a vessel transport the
cargo solely from its place of storage in the warehouse
or terminal area to the side of the vessel and place it
aboard the ship. Warehousemen do not remove cargo
from a vessel, or after its removal from the vessel to a
warehouse or storage area. Nor do they move cargo from.
a warehouse or storage area point of rest directly along-
side the vessel nor place it aboard same. Such work is
exclusively within the jurisdiction of the Deep Sea Local.
46
In drafting the definition of “employee” we must in-
dulge in the presumption that Congress in its wisdom
selected such significant words or phrases as “engaged
in”, “maritime employment” and “longshoreman” most
carefully. For example, rather than choose a word of
flexible meaning such as “affecting”, the phrase “engaged
in” was selected, with the reasonable implication being
that a claimant must have something more than an in-
direct relationship with “maritime employment”. The term
“longshoreman” poses less of a problem and is deemed
generally to be a laborer employed about the wharves
of a port, especially in loading and unloading vessels.
Sulovitz v. U.S., 64 F. Supp. 637 (E.D. Pa. 1945).
No general rule had been fashioned sufficiently com-
prehensive to describe all the types of employment which
are deemed maritime in nature. Outside of certain gen-
erally recognized fields, each case must be determined by
its particular facts and circumstances. Ellis v. Gulf Oil
Corporation, 48 F. Supp. 771, 772 (D.N.J.-1943). How-
ever, “[t]he management of the vessel, the loading [un-
loading] of same, the care of its equipment and cargo,
the performance of any task essentially to enable it to
accomplish its purpose upon navigable waters are within
the term ‘maritime employment’.” Massman Const. Co.
v. Basset, 30 F. Supp. 813, 815 (E.D. Mo. 1940), rev'd.
on other grounds, 120 F.2d 230 (8th Cir. 1941), cert.
denied, 314 U.S. 648 (1941).
Slight succor is found in general statements, however.
The key to the present conundrum is to lay the facts
concerning Claimant’s employment and the Employer’s
activities alongside the statutory definitions and the legis-
lative history. In the Senate and House Reports afore-
mentioned, it is stated expressly that the Committee did
47
not intend to cover employees who are not engaged in
unloading a vessel just because they are injured in an
area adjoining navigable waters and whose only responsi-
bility is to pick up stored cargo for further trans-shipment.
Likewise the Committee had no intention of extending
coverage to individuals who were not employed by a
person who was an employer. For example, an individual
employed by a person none of whose employees work in
whole or in part, on navigable waters, even if injured
on a pier adjoining navigable waters.
On the facts before us, Claimant and his warehousemen
coworkers were not, as I interpret the definitions afore-
mentioned and the legislative history, engaged in either
“maritime employment” or in “unloading” a vessel. The
duties of Claimant and his fellow warehousemen, by the
terms of the collective bargaining agreement, and in
actuality, did not require them and, in fact, prohibited
them from performing any unloading of vessels.
We are reminded in Claimant’s brief that “any inter-
mediate step prior to the final removal from the maritime
facility is to be considered a ‘maritime operation’ under
the Act”. This conclusion is arrived at apparently be-
cause the Claimant was working near the water and al-
leged to be engaged in the final stages of unloading a
vessel, a pregnant idea distinguished more by the in-
genuity of its conception than by the strength of its per-
suasion. Rather than “unloading” a vessel, the facts could
support reasonably the conclusion that the Claimant was
engaged in the first stages of loading cargo for a consignee,
which cargo had already been physical or constructively
delivered to such party. In this regard, it is of interest
to note that the Stipulation states the receiver of the
48
cargo pays for the warehousing services. Stripped to its
essentials, Claimant’s duties were confined completely to
land, where on the day in question his sole function was
to affix the cargo (military tanks) to railroad flatcars
for trans-shipment inland. As such, Claimant’s “maritime
employment” was nebulous to nonexistent.
I find also that the Claimant was not working for an
“employer” as this term is defined in Section 902(4), and
as amplified by the Committee Reports, because of the
absence of employees “employed in maritime employment”.
The record shows that employees of the employer had
not performed any of the stevedoring services concerning
the cargo, nor were such employees involved in trans-
ferring the cargo, on which Claimant was working sub-
sequently when injured, to the storage yard within the
terminal area. The Employer had merely the warehousing
contract to prepare the vehicles for shipment inland by
rail. These facts also appear to fall within that portion of
the Committee Reports which states: “Thus, an individuai
employed by a person none of whose employees work,
in whole or in part, or navigable waters, is not covered
even if injured on a pier adjoining navigable waters”.
To the writer’s knowledge none of the jurisdictional
questions under the aforementioned Sections of the Act
have decided to date by the Benefits Review Board or
the appropriate Federal Circuit Court of Appeals. Of
those decisions on the Administrative Law Judge level
possibly analogous to the instant matter is Giacomo
Avvento v. Hellenic Lines and Liberty Mutual Insurance
Company, 74-LHCA-63, which is cited in, and attached
to, the Director’s brief to support the position Claimant
is an “employee”. However, there are at least two power-
wares. Se ee 20 ce eee rears we
49
ful and persuasive distinctions between Avvento and this
case. First, and most important, in Avvento the claimant,
a “legman” engaged in loading cases of sardines into a
truck on the particular day of the accident, was a long-
shoreman and because of the interchangeability of jobs,
could within the same day be assigned to the task of
directly unloading a vessel. Not so with the Claimant here,
whose duties were that of a warehouseman, pure and
simple, having an attenuated link at best with the vessei
from which cargo emanated. Second, the longshoreman in
Avvento was found not to be picking up “stored cargo”.
Here the vehicles the Claimant was affixing to the flatcars
could, on the facts set forth in the Stipulation, be reason-
ably considered, and I so find, to be stored cargo. More
recently, on the administrative law level, there was de-
cided James R. Bailey v. Nacirema Operating Company,
Inc. and Liberty Mutual Insurance Company, 74-LHCA-
117, which in some regard is similar to the instant matter
and also involved a jurisdictional issue. Again, however,
the facts are significantly different. In Bailey, though
engaged on the day of the accident in a process involving,
“stuffing”, i.e., loading logs onto a Moffet Trailer, the
claimant was a longshoreman, “frequently assigned to a
regular longshoremen’s gang, for work either aboard ship
or on a dock, handling cargo”. Litwinowicz v. Weyer-
haeuser Steamship Company, 179 F. Supp. 812 (E.D.
Pa. 1959), is cited also in the Director’s brief, for the
proposition that “loading” should not be given a niggardly
construction. However, there the plaintiff, a Jongshoreman,
was injured while working in a railroad car placing wooden
chocks under a draft of steel beams preparatory to their
being hoisted aboard a ship. These facts are strikingly
dissimilar from those before us.
50
Related in the briefs of counsel for Claimant and the
Director are the following cases: Voris v. Eikel, 346 US.
328, 333 (1953); Young & Co. v. Shea, 397 F.2d 185,
188 and 404 F.2d 1059, 1061 (Sth Cir. 1968); Calbeck
v. Travelers Insurance Co., 370 U.S. 114, 130 (1962).
These are mentioned for the thesis that the Act, should
be construed liberally in favor of injured workmen and
that it should be read expansively. To these one might
add, to mention a few, Reed v. The S. S. Yaka, 373 US.
410, 415, (1963); Michigan Mutual Liberty Co. vy. Ar-
rien, 344 F.2d 640, 647 (2d Cir. 1965) and Gibson v.
Hughes, 192 |F. Supp. 564, 571 (S.D.N.Y. 1961). Not-
withstanding that these cases were decided before the Act
was amended it is conceded that it remains a remedial
statute to be construed broadly. However, such generous
construction should not be employed to frustrate the Con-
gressional intent as evidenced by new definition of “em-
ployee” and the Committee Reports.
Cardillo v. Liberty Mutual Ins, Co., 330 U.S. 460, 474
(1947) is also cited for the Section 20(a) presumption
“that a claim comes within the provisions of this Act.”
However, the prefatory language to this give rise to such
presumption only “in the absence of substantial evidence
to the contrary”. The record will show, and I so find,
that the Employer has come forward with such evidence.
From the foregoing findings of facts, conclusions of
law and upon the evidence contained in the record as a
whole I make the following:
Order
The claim for compensation by Diverson Ford under
the Longshoremen’s and Harbor Workers’ Compensation
—
51
Act against P. C. Pfeiffer Company, Inc., and Texas
Employers’ Insurance Association is hereby denied.
/s/ FRANK W. VANDERHEYDEN
Frank W. Vanderheyden
Administrative Law Judge
Dated: August 29, 1974
Washington, D. C.
52
APPENDIX C
U. S. DEPARTMENT OF LABOR
Benefits Review Board
WASHINGTON, D.C. 20210
DIVERSON FORD, Claimant-Petitioner,
Vv.
P. C. PFEIFFER COMPANY, INC.,
and
TEXAS EMPLOYERS’ INSURANCE ASSOCIATION,
Employer/Carrier-Respondents
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,
Petitioner
v.
P. C. PFEIFFER COMPANY, INC.
and
TEXAS EMPLOYERS’ INSURANCE ASSOCIATION,
Employer/Carrier-Respondents
BRB Nos. 74-191 and 74-191A
DECISION
Appeal from Decision and Order of Frank W. Van-
derheyden, Administrative Law Judge, United States
Department of Labor.
J. Weldon Granger (Downman, Jones and Schech-
ter), Houston, Texas, for the claimant.
W. Robins Brice and E. D. Vickery (Royston, Ray-
zor, Cook and Vickery), Houston, Texas, for the
employer/carrier.
53
Joshua T. Gillelan (William J. Kilberg, Solicitor of
Labor, Marshall H. Harris, Associate Solicitor),
Washington, D.C., Office of Workers’ Compensation
Programs, United States Department of Labor.
Before: Washington, Chairperson, Hartman and
Miller, Members.
Washington, Chairperson:
These appeals by the claimant and the Director, Office
of Workers’ Compensation Programs, are from the deci-
sion and order (74-LHCA-181) of Administrative Law
Judge Vanderheyden denying compensation benefits pur-
suant to a claim filed under the provisions of the Long-
shoremen’s and Harbor Workers’ Compensation Act, as
amended, 33 U.S.C. $901 et seq. (hereinafter referred to
as the Act).
Claimant, employed as a warehouseman, injured a
finger in 1973 while securing military vehicles onto rail-
road cars located on a concrete aprondock for inland
shipment. The vehicles with which claimant was working
had been unloaded from ships between two days and two
and one one-half wecks prior to the injury. The employer
and carrier (hereinafter referred to as the employer) con-
troverted the claim on the sole ground that the claim did
not come within the provisions of the Act.
The administrative law judge found that the claimant
was not an employee as described in Section 2(3) of the
Act, 33 U.S.C. $902(3), and that the employer was not
an employer as described in Section 2(4) of the Act, 33
U.S.C. §902 (4), and therefore denied compensation.
The claimant and the Director appeal alleging that the
1972 amendments to the Act expanded coverage inland
54
to include anyone, such as the claimant, engaged in long-
shoring operations.
Employer’s argument that neither the claimant nor any
other of the employer’s employees were working over
navigable waters on the date of the injury assumes that
the coverage of “navigable waters” has come through the
amendments unscathed. Such an assumption is unfounded
since the language of amended Section 3(a) of the Act,
33 U.S.C. $903(a), and amended Section 2(4) of the
Act, 33 U.S.C. §902(4), both apply to employment
“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).-
The employer undisputedly had employees working in
a geographical area within the scope of Sections 3(a)
and 2(4). The Board finds it unnecessary to find, as
urged by the employer, that at least one employee of the
employer must be actually working over the water with a
ship at the dock before an employer is determined to
have employees employed over navigable waters within
the provisions of amended Section 2(4) of the Act. The
Board’s inquiry is therefore directed to the clsimant’s
duties on the date of the injury to determine whether he
was engaged in maritime employment, because Section
3(a) having been satisfied, a determination of coverage
of an “employee” under Section 2(3) will implicitly
satisfy the requirements of Section 2(4). Harris v. Mari-
time Terminals and Aetna Casualty, 1 BRBS 301, BRB
No. 74-178 (Feb. 3, 1975).
Section 2(3) of the Act, as amended, defines an em-
ployee as:
55
Any person engaged in maritime employment, in-
cluding any longshoreman or any other person en-
gaged in Longshoring operations . . . . (emphasis
added). .
This Board has found that longshoring operations in-
clude intermediate steps subsequent to unloading cargo,
still in maritime commerce, from a ship and prior to its
removal from the terminal for further transshipment. A v-
vento v. Hellenic Lines Ltd., 1 BRBS 174, BRB No. 74-
153 (Nov. 12, 1974). The very language of amended
Section 2(3) includes anyone engaged in longshoring
operations in the definition of an employee. The Board
finds that the cargo with which the claimant was working
was still in maritime commerce. Avvento, supra; Adkins
v. 1.T.0., 1 BRBS 199, BRB No. 74-123 (Nov. 29,
1974). The claimant in Avvento was performing the same
type of work as here, loading cargo which had previously
en unloaded from a ship into a truck for removal from
the pier. The fact that the claimant in Avvento was hired
as a longshoreman and the claimant here was hired as a
warehouseman is in no way a distinction under the Act.
See Coppolino vy. 1.T.0., 1 BRBS 205, BRB No. 74-136
(Dec. 2, 1974). It is the function of the employment, such
as longshoring operations, and the situs of the injury that —
is controlling, not the title of the position.
The Board does not subscribe to a “point of rest” de-
termination that the moment that cargo is unloaded from
a ship and placed onto the dock, it ends its maritime na-
ture. Avvento, supra. Any intent to limit coverage to per-
sons actually involved with the loading and unloading of
ships between the stringpiece and the hold of the ship
could have been so expressed by Congress. Coppolino,
supra.
56
The Board finds that the administrative law judge er-
red in finding that the claimant was not engaged in em-
ployment within th® scope of the Act. Therefore, the
decision and order appealed from is reversed and the case
is remanded to the office of the Administrative Law
Judges for further appropriate action.
/s/ RUTH V. WASHINGTON
Ruth V. Washington, Chairperson
We Concur:
/s/ RALPH M. HARTMAN
Ralph M. Hartman, Member
/s/ JULIUS MILLER
Julius Miller, Member
Dated this 21st day
of March, 1975
<a ee ee
57
SERVICE SHEET
BRB Nos. 74-191-191A
DIVERSON FORD
v.
P. C. PFEIFFER CO., INC,
and
TEXAS EMPLOYERS’ INSURANCE ASSOCOATION
and
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS (74-LHCA-181)
Decision sent to all parties:
J. Weldon Granger, Esquire Certified Mail-
Downman, Jones & Schechter
1200 Houston First Savings Building
711 Fannin
Houston, Texas 77002
W. Robins Brice, Esquire
E. D. Vickery, Esquire
Royston, Rayzor, Cook & Vickery
Suite 3710
One Shell Plaza
Houston, Texas 77002
Mr. Marshall H. Harris
Associate Solicitor
U. S. Department of Labor
Room N-2716 New Labor Building
Washington, D. C. 20210
-Certified Mail-
Certified Mail-
58
Mr. Lee H. Hollis
Deputy Commissioner
U. S. Department of Labor
Employment Standards Administration
Room 212 U. S. Post Office Bldg.
601 Rosenburg
Galveston, Texas 77550
Mr. Stephan Gordon
Chief Administrative Law Judge
Office of Administrative Law Judges
U. S. Department of Labor
1111-20th Street, N.W.
Suite 720
Washington, D.C. 20036
Mr. Herbert Doyle
Director, Office of Workers’
Compensation Programs
U. S. Department of Labor
Room 310
711 - 14th Street, N.W.
Washington, D.C. 20210
59
APPENDIX D
U. S. DEPARTMENT OF LABOR
Office of Administrative Law, Judges
WASHINGTON, D.C. 20210
Case No. 74-LHCA-89
(Formerly Case No. 8-18217)
In the Matter of
| WILL BRYANT, Claimant
Vv.
AYERS STEAMSHIP COMPANY, Employer
TEXAS EMPLOYERS’ INSURANCE ASSOCIATION,
Carrier
Arthur L. Schechter, Esquire
Downman, Jones & Schechter
1200 Houston First Savings Building
Houston, Texas 77002
For the Claimant
E. D. Vickery, Esquire
W. Robins Brice, Esquire
Royston, Rayzor, Cook & Vickery
3710 One Shell Plaza
Houston, Texas 77002
For the Employer
and Carrier
60
William J. Kilberg, Esquire
Solicitor of Labor —
Joshua T. Gillelan, II, Esquire
Attorney
United States Department of Labor
Room 4221, Main Labor Building
14th & Constitution Avenue, N.W.
Washington, D.C. 20210
For Director
Office of Workmen’s Compensation
Programs
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION AND ORDER
Statement of the Case
This is a claim for compensation under the Longshore-
men’s and Harbor Workers’ Compensation Act, 33 U.S.C.
§ 901 et seq., as amended (hereinafter referred to as the
Act). The sole issue for determination is jurisdiction, i.e.
whether a cotton header, injured while unloading cotton
bales from a dray wagon, is subject to the provisions of
the Act. All facts, including disability and compensation
due if Will Bryant (Claimant) is an employee covered by
the Act as amended in 1972, have been stipulated by the
parties.’
1. The parties have entered into three signed stipulations which
are hereby incorporated as part of the record as follows:
Stipulation No. 1, entitled, “Agreed Statement of Facts and Stipu-
lations”, executd by Employer, Insurance Carrier and their
attorneys on September 24, 1973, and by the Claimant and
his attorney on October 7, 1973 (hreinafter referred to as
“Stip. 1” followed by the appropriate page of that Stipulation).
Stipulation No. 2, entitled, “Supplemental Agreed Stipulation
of Fact”, executed by Employer, Insurance Carrier and their
61
A hearing was scheduled for June 4, 1974, in Houston,
Texas, but was cancelled at the request of the parties.”
A waiver of Oral Argument, duly signed by counsel for
the parties was also filed and is hereby incorporated in
the record as ALJ Exh. 2. By letter dated July 3, 1974,
the parties, including the late Honorable James B. Johns-
ton, were given confirmation of the telegraphic notice of
cancellation of the notice of hearing; that the request of
the parties that this case be submitted on the agreed
stipulations of fact without formal hearing and/or oral
argument was granted; and a briefing schedule was set
forth. A copy of the letter dated June 3, 1974, is hereby
incorporated in the record as ALJ Exh. 3.
Claimant initially filed a brief with the Deputy Com-
missioner entitled, “Brief and Argument in Support of
Will Bryant’s Claim for Compensation” and Employer-
Carrier filed a brief with the Deputy Commissioner en-
titled “Brief of Employer and Insurance Carrier”, received
December 27, 1973. Thereafter, Employer and Insurance
Carrier filed with this Office a Motion to Dismiss and/or
attorneys on December 13, 1973, and by Claimant and his
attorney on December 13, 1973 (herinafter referred to as
“Stip. 2” followed by the appropriate page of that Stipulation).
Stipulation No. 3, also entitled “Supplemental Agreed Stipulation
of Fact’, executed by Claimant and his attorney on May 3,
1974, and by Employer, Insurance Carrier and their attorneys
on May 7, 1974 (hereinafter referred to as “Stip. 3” followed
by the appropriate page of that Stipulation).
2. The late Honorable James G. Johnston, Associate Solicitor for
Employee Benefits, in a letter to the undersigned dated May 24,
1974, with copies to counsel for the parties, concurred that the three
stipulations, more fully described in n. 1, supra, “set forth all relevant
facts of which we are aware with respect to the claim; none of us
desires to adduce any further evidence. Thus on behalf of all parties,
we would like to waive, pursuant to 20 C.F.R. §702.346, the formal
hearing which has been scheduled to be held in Houston on June
6, 1974.” The letter dated May 24, 1974, is hereby incorporated
in the record as ALJ Exh. 1.
62
for Summary Judgment for Lack of Jurisdiction, hereby
incorporated in the record as ALJ Exh. 4. Pursuant to the
briefing schedule set forth in ALJ Exh. 3, the Director
timely filed a brief entitled “Memorandum of the Director,
Office of Workmen’s Compensation Programs, in opposi-
tion to Employer’s and Insurance Carrier's Motion to Dis-
miss and/or For Summary Judgment”. Counsel for Claim-
ant, by letter dated June 13, 1974, addressed to the
undersigned, (hereby incorporated in the record as ALJ
Exh. 5), advised that Claimant did not wish to file any
additional briefs; however, counsel for Claimant by letter
dated July 11, 1974, addressed to the undersigned (hereby
incorporated in the record as ALJ Exh. 6) set forth the
amount claimed as an attorney’s fee and medical expenses
supported by his signed statement of time and work (here-
by incorporated in the record as ALJ Exh. 6-A). Em-
ployer and Carrier timely submitted a Reply Brief, dated
July 5, 1974. Employer and Carrier by letter dated July
30, 1974, responded to Claimant’s counsel's letter of
July 11, 1974 (hereby incorporated in the record as ALJ
Exh. 7) with regard to attorney’s fee and medical ex-
penses. By letter dated February 3, 1975, counsel for
Employer-Carrier submitted a copy of a brief filed in
BRB No. 74-191-191A, Diverson Ford v. P.C. Pfeiffer
Company, Inc., et al., which is hereby rejected as not
timely filed.
On the basis of the stipulations of the parties and
the briefs and memoranda filed herein, I make the follow-
ing findings, conclusions and order.
Findings of Fact
The facts are fully set forth in the Stipulations of the
parties and the pertinent facts are summarized as follows:
eee ee
ne eee ee eee
63
1. Employer, Ayers Steamship Co., is a ship agency
and a terminal operator and does not employ longshore-
men to load or unload vessels (Stip. 1, pp. 3, 4). As a
ship agency, Employer has employees who board ocean-
going vessels and perform some duties on the navigable
waters of the United States (Stip. 1, p. 4). As a terminal
operator, Employer receives cargo for eventual loading
aboard a vessel and stores it in a pierside warehouse until
space aboard a vessel is ready to receive it and until long-
shore labor is available to load the cargo (Stip. 1, p. 4).
2. To perform its terminal operations in Galveston,
Employer employs cotton headers and quaymen from
Local 1308 (Stip. 1, p. 4). Local 1308 is the ILA cot-
ton headers local (Stip. 3, p. 3). Cotton headers are em-
ployed solely to unload cotton bales from shoreside
transportation and to store it in pierside warehouses. Cot-
ton headers never move the bales from the pile (ware-
house) to the ship (Stip. 1, p. 2). Quaymen perform
cargo shifting operations from one storage location to
another storage location within the pierside warehouses,
but they do not perform longshore work. Cotton headers
and quaymen do not deliver cargo to vessels and never
work on vessels or on the navigable waters of the United
States (Stip. 1, pp. 4-5).
3. Claimant, for five or six years prior to May 2,
1973, had worked exclusively as a cotton header or
quayman out of Local 1308; Claimant has done no long-
shoring work; and Claimant’s work has on no occasion
required him to go aboard a vessel on the navigable waters
of the United States (Stip. 1, pp. 1, 3).
4. On May 2, 1973, Claimant, while employed by
Employer as a cotton header at a warehouse immediately
64
adjacent to Pier 23, Port of Galveston, Texas, sustained
a fracture of the Sth Metacarpal bone in his right hand
and other injuries to his right hand when, as he was un-
loading a bale of cotton, a “spider” from the banding on
the bale caught his glove and pulled him along with
the rolling bale so that his right hand was caught between
two bales (Stip. 1, pp. 1, 2).
5. The driver of the dray wagon, an employee of
Bluebonnet Warehouse, who had brought the dray wagon
to the warehouse, was assisting Claimant unload the
bales when Claimant was injured (Stip. 1, p. 2).
6. In the Port of Galveston, cotton is received by
various shoreside cotton compress/warehouses from inland
shippers. The cotton is then drayed to pier warehouses,
the driver of the dray, together with two cotton headers
take the cotton off the dray wagon and move it to the
designated place in the pier warehouse (Stip. 1, p. 1).
The cotton remains stored in the warehcuse until it is
moved by longshoremen, not cotton headers, to shipside.
After the cotton headers take the cotton off the dray
wagons and put in to rest in the warehouse, they do not
load it again (Stip. 1, p. 2), unless the cotton is removed
from that warehouse and stored in another warehouse
(Stip. 1, p. 4), in which event, although cotton headers
do not move cotton from one warehouse to another, they
may be employed as cotton headers, to receive cotton
into the other warehouse from dray wagons which have
come from another pierside warehouse. Cotton headers
do not work at any location other than pierside ware-
houses (Stip. 3, pp. 4-5).
7. The cotton on which Claimant was working when
injured was stored in anticipation of the arrival of the
ee
65
SS KOREAN EXPORTER which was not in port at the
time and did not arrive at the dock until May 7, 1973.
The cotton which Claimant was actually heading at the
time of his injury on May 2, 1973, was, in fact, loaded
aboard the KOREAN EXPORTER by longshoremen on
May 7, 1973. The loading of the KOREAN EXPORTER
was accomplished by longshoremen employed by Young
& Company, an independent contracting stevedoring com-
pany in no way affiliated with Employer. Young & Com-
pany was employed by the vessel’s operator (Stip. 1, pp.
3-4).
8. The Deepsea and Cotton Agreement Rule 20, which
defines longshore work, provides, in part, as follows:
“Longshore work shall constitute the loading and
discharging of all sea-going vessels . . . and all labor
connected with the loading and discharging of ships
. . Longshore labor also includes all men who
truck cargo direct to and from pile or car or to
and from the ship’s side to hatches. The important
distinction being whether or not the freight is handled
once, that is to say, laid down or piled. It is mutually
agreed that when assorting is necessary when dis-
charging the employment of warehouse labor is
optional. . . .” (Stip. 3, pp. 3-4)
9. The Cotton Headers Union Contract provides:
“It is recognized and agreed that breaking down
cotton stacked for loading aboard ship is longshore
work.” (Stip. 1, p. 2).
10. It is possible that cotton can be transferred di-
rectly from dray wagon to ship, in which event the work
would be done by longshoremen; however, if this is done,
66
cotton headers who otherwise would have stored the cotton
in the warehouse must be paid for each bale so handled
by the longshoremen (Stip. 3, p. 2).
11. Cotton stored in the warehouse by cotton headers
is segregated by lot (Stip. 3, p. 2); may remain in storage
for periods ranging from less than a day to several weeks;
each warehouse allows a certain number of days of “free
time” after which storage charges accrue. At the ware-
house in which Claimant’s injury occurred, “free time”
for cotton was 15 days (Stip. 3, p. 3).
12. Claimant’s average weekly wage was $166.69.
Following the injury in question, Claimant was tempo-
rarily totally disabled from May 4, 1973, to June 29,
1973, a period of eight weeks, for which compensation
under the Act would be $889.04; that, in addition, Claim-
ant has suffered a permanent partial disability to his right
hand from June 30, 1973, for which he would be due
compensation under the Act for a further period of 24.4
weeks in the total sum of $2,711.57; and that the total
amount of compensation owed if jurisdiction is determined
to exist under the Act is $3,600.61 (Stip. 2, p. 2), not
including, however, $158.00 of medical expenses claimed
by Claimant’s attorney (AJJ Exh. 6-A) to which Em-
ployer-Carrier have noted an objection (ALJ Exh. 7).
13. Carrier has paid Claimant compensation for tem-
porary total disability for eight weeks at the maximum
weekly rate under the Workmen’s Compensation Act of
Texas that if jurisdiction is found to exist under the Act,
Employer-Carrier are entitled to a credit of the amount
of State compensation paid; that whatever additional com-
pensation, if any, Claimant may be entitled under the
State compensation act if jurisdiction is found not to exist
67
under the Act will be determined after final decision in
this case (Stip. 2, p. 2).
14. Timely notice of injury was given; claim for com-
pensation under the Act was timely filed; and Employer-
Carrier have furnished such medical care and attention
as the nature of injury required (Stip. 2, p. 1).
Conclusions
Claimant performed no work on navigable waters and
was injured in a warehouse on the land. Clearly, prior to
the 1972 amendments of the Act he would not have been
covered by the Act. Nacirema Operating Co., Inc. v.
Johnson, 396 U.S. 212 (1969).
Employer has employees who are employed in maritime
employment upon the navigable waters of the United
States and is, therefore, an “employer” within the meaning
of Section 2(4) of the Act; but a claim is no longer
covered by the Act merely because the employer has
other employees employed in maritime employment and
the injury occurred upon “navigable waters”. Coverage
under the Act now requires that the employee, himself,
be a person engaged in maritime employment, as very
succinctly and very correctly stated by the Solicitor in
his brief as follows:
“An injured claimant now must meet that definition,
[of employee §2(3)] or his injury will not fall within
the terms of §3(a); he may no longer rely on the
fact that other persons working for his employer are
doing maritime work.
“In the absence of this ew ‘status’ requirement, the
Act would have reached injuries on land to persons
whose employment involved no maritime function;
68
such injuries, however, are not maritime subjects at
all. The purpose of the limitation of coverage to
persons ‘engaged in maritime employment’ was thus
to restrict the Act’s application to subjects within
the Federal admiralty powers.” (Memorandum of
Director, p. 4).°
Claimant was not a longshoreman; he did not load
vessels. He was a cotton header, or warehouseman; his
duties as a cotton header consisted solely of unloading
bales of cotton from dray wagons and storing the bales
of cotton in segregated lots in the warehouse or, possibly,
on rare occasions moving bales of cotton from one loca-
tion to another within the same warehouse. On other
occasions, Claimant worked as a quayman in moving
cotton bales from one warehouse to another warehouse.
Claimant was injured at a warchouse “immediately ad-
3. Liability prior to the amendment of Section 2(3) of the Act,
in cases such as Peter v. Arrien, 325 F. Supp. 1361 (E.D. Pa.), aff'd,
463 F.2d 252 (3rd Cir. 1972), was predicated on the definition of
“employer” in §2(4) as “. . . an employer any of whose employers
are employed in maritime employment . . . upon the navigable waters
. 2”, the absence of any definition of ‘“employee’—except certain
persons not included “in the term, and the provision of §3(a)
which provided, pa
“Compensation shall be payable . . . in respect of disability
or death of an employee, but only if the disability or death
results from an injury occurring upon the navigable waters of
the United States...’
Coverage was established if the disability or death occurred on
navigable waters even if the decedent or disablee was not engaged
in maritime employment, if the employer had some employees em-
ployed in maritime employment. Gilmore v. Weyerhaeuser Company,
BRB No. 74-141. However, Section 2(3) of the Act, as amended,
now defines the term “employee” as,
“.. . any person engaged in maritime employment . . .”
Consequently, this term “employee” in $3(a) of the Act now means
a person engaged in maritime employment, i.e., even if disability or
death occurs on navigable waters, such disability or death would be
covered under §3(a) only if that employee were engaged in maritime
employment.
69
jacent”,’ but not adjoining, Pier 23, Port of Galveston,
Texas.
The warehouses at which cotton headers work are also
described as “pierside” and the cotton bales are brought
to such pierside warehouses with the express intention
that the cotton will be shipped in maritime commerce
aboard sea-going vessels. Nevertheless, Claimant’s duty
as a cotton header was to store the cotton bales in the
warehouse. The cotton bales come to rest in the ware-
house. The movement from the warehouse, or “pile” to
dockside is performed by longshoremen. The Union agree-
ments draw a hard, but clear, line of demarcation between
warehouse, or cotton header, work on the one hand and
longshore work on the other. Longshore work begins at
the warehouse, or “pile” to dockside and loading aboard
a vessel; warchouse, or cotton header, work extends to
the storage of the cotton bales in the warehouse, or “pile”,
shifting of cotton bales within a warehouse. Rule 20 of
the Deepsea and Cotton Agreement, which defines long-
shore work, expresses it as follows:
. . . Longshore labor also includes all men who
truck cargo direct to and from pile . . . The import-
ant distinction being whether or not the freight is
handled once, that is to say, laid down or piled . . .”
4. The dictionary definition of “adjacent”’ is
“Lying near, close, or contiguous; neighboring; bordering on;
as a field adjacent to the highway.’’ Webster's New International
Dictionary, 2nd Ed. (1958)
or
“Lying near or close to; sometimes, contiguous; neighboring . . .
Adjacent implies that the two objects are not widely separated,
though they may not actually touch . . . while adjoining imparts
that they are so joined or united to each other that no third
object intervenes.” Black’s Law Dictionary, Revised 4th Ed.
(1968)
70
The Cotton Headers Union Contract provides that,
“.. . breaking down cotton stacked for loading
aboard ship is longshore work.”
Under the Galveston Union contract, cotton bales must
be handled twice, that is, must be laid down or piled
before moving to the ship’s side or cotton headers, who
otherwise would have laid down, or piled, the cotton
must be paid for each baie so handled by the longshore-
man.
Section 2(3) of the Act, as amended, defines employee
as follows:
“The term ‘employee’ means any person engaged
in maritime employment, including any longshoreman
or other person engaged in longshoring operations,
and any harbor-worker including a ship repairman,
shipbuilder, and ship-breaker . . .”
Section 3(a) of the Act, as amended, specifies the cover-
age of the Act as follows:
“Compensation shall be payable under this Act in
respect of disability or death of an employee, but
only if the disability or death results from an injury
occurring upon the navigable waters of the United
States (including any adjoining pier, wharf, dry dock,
terminal, building way, marine railway, or other
adjoining area customarily used by an employer in
loading, unloading, repairing, or building a vessel).
Claimant was not a longshoreman and he was not
engaged in longshoring operations; he was not injured
upon the navigable waters nor on any adjoining pier,
71
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.
Was he, nevertheless, as contended by the Solicitor, en-
gaged in maritime employment?
Neither S. 2318 [July 20 (legislative day, July 19,
1971)] nor S. 525, [February 2, (legislative day, January
26, 1971)] on which the Hearings were held [Longshore-
men’s and Harbor Workers’ Compensation Act Amend-
ments of 1972, Hearing before the Subcommittee on
Labor of the Committee on Labor and Public Welfare,
United States Senate, 92nd Cong., 2nd Sess. (1972)]
proposed any change in coverage or amendment of Sec-
tions 2(3) or 3(a) of the Act so that scant attention was
given in the Hearing to any question of coverage or
jurisdiction. The following comments relating to the mat-
ter have been noted:
“Senator Javits. ...
“Lastly, Mr. Secretary, I understand that there is
also some controversy about work over land and
work over water, and there has been quite a good
deal of litigation. Would you have any suggestion
as to how we could deal with that subject?
“Secretary Hodgson. I had thought that through
years of court cases on this that that thing had been
somewhat narrowed, that questions under that had
been somewhat narrowed.
“I don’t know how we could improve that differ-
entiation, but I would be willing to examine whether
or not we could.
“I would like to see if Mr. Schubert has any com-
ments on that.
72
“Mr. Schubert. Well, the latest case to draw a line
was the Nascirema case, and it drew the line between
the ship and the plank and the land on which the
dock was located. It seems to me that it is inevi-
table that a line be drawn somewhere. It is just a
matter of judgment as to the most appropriate geo-
graphical place.
“I think that we certainly could work with staff
in coming up with a more rational and reasonable
line. I am always apprehensive that we open the
door to more litigation, but we certainly would be de-
lighted to look at it, as we have been in the prepara-
tion for these hearings.
“Senator Javits. Thank you very much. I think
that the willingness of the Department to examine
these questions with an open mind is very gratifying,
and I am hopeful that we can have a collaboration
that will be constructive.” (Hearings, pp. 38-39)
“Mr. Mittelman. One other question, and that
concerns the reach of a Longshore Act as proposed,
its relationship to the State act. Concerning the
water’s edge, how does that apply to a ship repair
yard? I think I understand pretty well how it applies
to custmoary longshore situations. I am not quite
clear how a shipyard is set up.
“Mr. Hartman. Same thing.
“Mr. Mittelman. Is most of the work actually per-
formed over navigable waters, or is a lot of it per-
formed on dry land?
“Mr. Hartman. In an average ship repair yard,
I don’t know, I guess it would be 60 or 65 percent,
depending on whether it is a conversion, or if it is
a repair of a damage at sea, but, on the average,
I would say 65 or 70 percent of the work in a stand-
ard repair yard is performed aboard the vessel,
afloat in navigable waters or in drydock.
73
“Mr. Mittelman. Would you see any virtue, or it
is in fact feasible to have the same rule apply as far
as compensation goes? In other words, to extend the
Longshore Act to all ship repair work performed
over the water or contiguous to it, in proximity to it,
so that you do not get this duality of benefits, I
mean, particularly as we amend this law as you
propose, it is going to be much better than of the
State laws, so there will be quite a difference in
benefits, depending on which side of that water’s edge
the ship repairman in your case is entered.
“Mr. Hartman. | am not authorized tc speak for
the shipbuilding industry. I can respond personally
to that question, and for my own company, and tell
you that we would see no objection, we would inter-
pose no objection, to extending the Longshoremen’s
Act to the land-based facility of the ship repair yard.
“Mr. Mittelman. That is very helpful to know that.
Thank you.” (Hearings, pp. 76-177)
Mr. Davis B. Kaplan, Chairman of Admiralty Section,
American Trial Lawyers Association, excerpt from pre-
pared statement, entitled “An Analysis of Senate Bill 525.”
“The maritime worker, whether he be crewmember
or longshoreman, is obligated to perform his em-
ployment on a ship which he has no familiarity with,
nor control over and with equipment generaliy sup-
plied by the ship . . . (Hearings, p. 363)
* * ok * *
“It is also of some importance, it seems to us,
that most shoreside workers can and do exercise
some control over the area in which and the tools
with which they work. This is not true of longshore-
men. They must work, if they are to work at all, in
and on areas supplied by a total stranger over whom
they exercise no control. They must accept the area
74
and tools of work as they find them or refuse to work.
Because of the hazardous nature of the work, the
rights and obligations of the people involved have
been molded by the legislature and by our courts in
order to harmonize the divergent interests. On the
one hand the marine worker must perform his work
under severe circumstances so the correlative duty
of the shipowner is to provide a reasonably safe
place for the worker to perform his activity.” (Hear-
ings, p. 368).
In an amendment reported by Senator Eagleton on
September 13, 1972, the original provisions of S. 2318
were stricken and extensively revised provisions were
substituted. S. 2318, as amended was accompanied by
S. Rep. 92-1125, 92nd Cong., 2nd Sess. (Sept. 14, 1973).
See, Legislative History of the Longshoremen’s and Har-
bor Workers’ Compensation Act Amendments of 1972,
prepared by the Subcommittee on Labor of the Committee
on Labor and Public Welfare, United States Senate, 92nd
Cong., 2nd Sess., December, 1972 (References to the
Legislative History, “Leg. History” will be identified as
to source followed by the page of the Legislative History
volume and, where applicable, the page of the Report).
S. Rep. 92-1125 with respect to the extension of cover-
age stated, in part, as follows:
“The bill also expands the coverage of this Act
to cover injuries occurring in the contiguous dock
area related to longshore and ship repair work.”
(Rep. p. 2, Leg. History p. 64).
* * * * *
“Extension of Coverage to Shoreside Areas
“The present Act, insofar as longshoremen and
shipbuilders and repairmen are concerned, covers
75
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 depend-
ing on which side of the water’s edge and in which
State the accident occurs.” (Rep. p. 12, Leg. Hist.
p. 74)
* * * *
“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 techniques,
such as containerization and the use of LASH-type
vessels, more of the longshoreman’s work is per-
formed on land than heretofore.
“The Committee belicves 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 suclf
navigable waters customarily used by an employer
in loading, unloading, repairing, or building a vessel.
76
“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
typically unloaded from the ship and immediately
transported 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, of building a vessel just because they are in-
jured in an area adjoining navigable waters used for
such activity. Thus employees whose responsibility
is only to pick up stored cargo for further trans-ship-
ment would not be covered, nor would purely clerical
employees whose jobs do not requiré them to partici-
pate in the loading or unloading of cargo. However,
checkers, for example, who are directly involved in
the loading or unloading functions are covered by
the new amendment. Likewise the Committee has
no intention of extending the coverage under the
Act to individuals who are not employed by a per-
son 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.” (Rep. p. 13, Leg. Hist.
p. 75)
H. R. 12006, initially introduced by Congressman Daniels
on December 2, 1971, was amended September 25, 1972,
by striking out all of the original proposals and substitut-
ing provisions identical to those contained in S. 2318, as
L
77
amended, and H. R. 12006, as amended, was accompanied
by H. R. Rep. 92-1441 which, as pertains to the ex-
tension of coverage, is substantially identical to S. Rep.
92-1125 (See, for example, Rep. pp. 10-11, Leg. Hist.
pp. 216-217).
“We do not believe that the compensation payable
to a longshoreman or harbor worker should depend
on the fortuitous circumstance of whether the injury
occurred on land or over water. Accordingly, section
2 of our bill amends the act to provide coverage of
longshoremen, harbor workers, ship repairmen, ship-
builders, shipbreakers, and other employees engaged
in maritime employment—excluding masters and
members of the crew of a vessel—if the injury oc-
curred either upon the navigable waters of the United
States or any adjoining pier wharf, drydock, termi-
nal, buildingway, marine railway, or other area ad-
joining such navigable waters customarily used by
an employer in loading; unloading; repairing; or
building a vessel.” (Statement, Cong. Daniels, Leg.
Hist. p. 287)
QUESTIONS AND ANSWERS
“Question. The present law covers employees
working on navigable waters. Do the amendments
change the scope of coverage?
“Answer. Yes. The present law’s coverage is lim-
ited to employees working on navigable waters, in-
cluding those working on dry docks. The amendments
will extend coverage to wharfs, terminals, marine
railways and other adjoining areas customarily used
in building, repairing, loading, or unloading vessels.
Also, the definition of “employee” is clarified by the
amendments.
“The latter change was made so that a determi-
nation of coverage can be made on the basis of the
78
definition of “employee.” Under the present law that
definition is so vague that the determination must
be made on the basis of whether the injured indi-
vidual was working for a covered “employer.” The
expansion of coverage is intended to bring about a
measure of compensation uniformity applicable to
persons customarily considered to be working in the
business. Thus, even if an employee does not happen
to be over navigable waters at the time he is injured,
he will be covered as long as he is working as a long-
shoreman or harborworker, whether engaged in re-
pairing a vessel or unloading it.”
(Submitted during floor debate by Cong. Steiger,
Leg. Hist. p. 298).
[From the Congressional Record—
Senate, Oct. 18, 1972]
LONGSHOREMEN’S AND HARBOR WORKERS’
COMPENSATION ACT AMENDMENTS OF 1972
Mr. Eagleton... .
“Significant improvements in the act are also
made in the area of extended coverage, by extend.
ing coverage to injuries occurring in the contiguous
dock area related to longshore and ship repair work.
... (Leg. Hist. p. 383).
Reasonable minds may differ as to intent of Congress
as evidenced by the Legislative History provided for, like
the Bible, it can be read to support quite divergent views.
Bearing in mind the admonition of a former professor
that “the Bible has suffered from inattention to what is
said and the manner in which it is expressed”, which ad-
monition is equally applicable to conclusions as to pre-
sumed Congressional intent, it must be noted: a) in the
course of the Senate Hearings, Senator Javits raised the
eR actin i ee
79
question of work over land and work over water to which
Secretary of Labor Hodgson and Solicitor of Labor Schu-
bert responded. Mr. Schubert stated that the latest case
to draw the jurisdictional line was the Nacirema case. He
further stated, “It seems to me that it is inevitable that a
line be drawn somewhere. It is just a matter of judgment
as to the most appropriate geographic place.”; b) Minor-
ity counsel Mittleman raised the question of extension of
the Act to all ship repair work, to which Mr. Ralph Hart-
man responded that his own company “. . . would inter-
pose no objection to extending the Longshoremen’s Act
to the land-based facility of the ship repair yard.”; C)
“maritime worker” was discussed as “crewmember or
longshoreman” and special significance was placed on
fact that “. . . most shoreside workers can and do exercise
some control over the area in which and the tools with
which they work. This is not true of longshoremen.”;
d) Senate Report 92-1125 states at the outset that “The
bill also expands coverage of this Act to cover injuries
occurring in the contiguous dock area related to longshore
and ship repair work.” (Emphasis supplied); and Senator
Eagleton, who reported the amendment to S.2318, re-
peated the same statement in his statement on October
18. 1972; f£) Senate Report 92-1125 and House Report
92-1441, make it clear that the primary concern, vis-a-
vis loading and unloading, was that the longshoremen be
covered whether the work be over water or on the land
and stated, “The intent of the Committee is to permit a
uniform compensation system to apply to employees who
would otherwise be covered by the Act for part of their
activity. To take a typical example, cargo, whether in
break bulk or containerized form, is typically unloaded
from the ship and immediately transported to a storage
or holding area on the pier, wharf, or terminal adjoining
80
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, repairing, or
building a vessel, just because they are injured in an
area adjoining navigable waters used for such activity.”
(Emphasis supplied); and g) Congressman Steiger, in
his Questions and Answers, stated, “The expansion of
coverage is intended to bring about a measure of com-
pensation uniformity applicable to persons customarily
considered to be working in the business. Thus, even if
an employee does not happen to be over navigable waters
at the time he is injured, he will be covered as long as he
is working as a longshoreman or harbor worker, whether
engaged in repairing a vessel or unloading it.” (Emphasis
supplied )
Coverage under the Act has never been, and is not
now, governed by engagement in maritime commerce.
From the foregoing, I conclude that Congress extended
coverage only to the point on such pier, wharf, or ter-
minal adjoining navigable waters, that the longshoring op-
eration, i.e., the loading of a vessel, begins and that the
extension of coverage ceases when the longshoring op-
eration ceases with placement of the cargo on such pier,
wharf, or terminal adjoining navigable waters. No other
conclusion is consistent with the language of §2(3) of
the Act “longshoreman or other person engaged in long-
shoring operations” and the expressed Congressional in-
tent that the extended coverage apply to, “The employees
who perform this [longshoring] work would be covered
under the bill for injuries sustained by them over the
navigable waters or on the adjoining land area” hut speci-
81
fically would not cover “employees who are not engaged
in loading, unloading, or repairing a vessel, just because
they are injured in an area adjoining navigable waters
used for such activity.”
Claimant was not a longshoreman; he did not perform
longshoring operations; and the bales came to rest in the
pile, or warehouse, before the longshoring operation be-
gan. That cotton headers are not persons customarily con-
sidered to be working in the longshoring business is firmly
established, not only by custom and practice in the in-
dustry in the Port of Galveston, but also by the agree-
ment of the Cotton Header Union, under which Claimant
worked, as well as by Rule 20 of the Deepsea and Cotton
Agreement. It is true, of course, that placement of the
cotton bales in the pile was the last step before com-
mencement of the loading, or longshoring, operation;
that the cotton was brought to pierside warehouses in
expectation that it would be loaded aboard sea-going ves-
sels; and, indeed, that longshoremen take the bales, stored
by cotton headers, from the pile to dockside and load the
bales in the vessels. Nevertheless, Claimant’s work does
not involve loading a vessel and is not a longshoring op-
eration and, as pertains to this case, Claimant is not,
therefore, engaged in maritime employment within the
meaning of Section 2(3) of the Act. Stated otherwise,
the movement of cargo does not become a maritime em-
ployment within the contemplation of Section 2(3) of
5. Obviously, the extension of coverage brings within the pro-
tection of the Act persons engaged in maritime employment who
are harbor workers, even though they are not longshoremen, nor
ship repairmen, nor shipbuilders, nor shipbreakers. For example, a
line tender, whose duties consist of the docking and undocking
sea-going vessels, is engaged in maritime employment even if his
duties are performed on the dock.
82
the Act until the longshoring operation begins. In this
case, Claimant’s work ceased and the cargo came to rest
in the warehouse before the longshoring operation began.
Accordingly, Claimant is not subject to the coverage of
the Act.
This conclusion is consistent with the decisions of the
Benefits Review Board construing the Act, or at least,
is not irreconcilable with the decisions of the Benefits
Review Board construing the Act. William T. Adkins v.
1.T.0. Corporation of Baltimore, BRB No. 74-123
(1974), involved an injury while loading stripped cargo
into trucks for further movement. Although the Board
affirmed the finding of the administrative law judge that
the injury occurred while the cargo was still in maritime
commerce, which, with all deference, is not a proper
criteria of coverage within the meaning of the Act;
nevertheless, the Board held that, “The Claimant was
performing the first and last in a series of longshoring
operations thereby bringing him within the scope of mari-
time employment.” Here, the longshoring operation began
after Claimant stored the cotton in the warehouse.
Dominick Coppolino v. International Terminal Operat-
ing Company, Inc., BRB No. 74-136 (1974), involved
a foreman of longshoring and hiring agent who was
injured while replacing paper in an IBM machine located
in a building on the pier. The Board held that, “The
fact that at the time of injury he was engaged in a clerical
function necessary to the performance of his job does
not remove him from the sphere of longshoring operation,
nor from coverage under the Act.” Herbert L. Perdue v.
Jacksonville Shipyards, Inc., BRB No. 74-200 (1975),
involved injury to a shipfitter which occurred when he
disembarked from a company bus in order to “punch out”;
83
The point of injury was about one mile by land from the
ship on which he was working but still within the naval
station. The Board held that the “claimant is entitled to
coverage under the Act.” Both in Coppolino ana Perdue
the Board was confronted with injuries to persons clearly
covered by the Act in their regular employment, where
the injury occurred in the course wf employment but at
a time when they were not engaged in their regular
covered employment. Here, of course, Claimant was not a
longshoreman and was not engaged in a longshoring
operation so that the “course of employment” rationale
is not applicable.
Giacomo Avvento v. Hellenic Lines, Ltd., BRB No.
74-153 (1974), involved an injury while loading cargo
onto a truck parked on the pier. The Board held, “This
was a final step in the unloading process . . .” As noted
above, the loading, or longshoring, operation in this case
began after the completion of Claimant’s work.
Donald D. Brown v. Maritime Terminals, Inc., 74-177
and 74-177A (1974), involved an injury while “stuffing”
cargo into a shipping container in a warehouse. The Board
held that, “. . . the claimant was injured while within the
scope of coverage as enlarged by the 1972 amendments
to the Act . . .” There, in accordance with union jurisdic-
tional claims and industry practice, the longshoring oper-
ation began with the stuffing of containers. Here, of
course, in accordance with union agreements, jurisdic-
tional claims and industry practice the longshoreing opera-
tion began with removal of the cotton bales from the pile,
i.e., Claimant’s work ceased before the longshoring opera-
tion began.
84
In view of the language carefully chosen by Congress,
Claimant was not injured on an adjoining pier, wharf or
terminal, but see, William T. Adkins v. 1.T.0. Corpora-
tion of Baltimore, supra; however, even if he were, Con-
gress stated that the Act was not intended to cover “em-
ployees who are not engaged in loading, unloading, or
repairing a vessel, just because they are injured in an
area adjoining navigable waters used for such activity.”
Claimant was not, in any event, engaged in loading, un-
loading, or repairing a vessel.
Finally, the Solicitor states that
“. . . employees who only deliver cargo to. . .°
‘storage’ facilities—like the driver of the cotton dray,
an employee not of Ayers but of Bluebonnet Ware;
house, who assisted Bryant [Claimant] and another
cotton header in unloading the cotton from the dray
wagons . . . are not covered by the Act.” (Memo-
randum of Director, p. 7).
Claimant, as well as the driver of the cotton dray, merely
delivered cargo to storage facilities. Although this brought
the cargo to a “pierside” point, Claimant’s work was a
warehousing function and the longshoring operation began
after completion of the warehousing operation. Indeed,
until the longshoring operation began the cotton was sub-
ject to movement to other warehouses. The line of de-
marcation between warehousing on the one hand and
longshoring on the other was clearly and emphatically
set forth in the Union agreements. The example given
in Senate Report 92-1125 and in House Report 92-1441
that the extension of coverage goes to the point that the
6. The phrase, “on-pier” is clearly in error and has been omitted.
——
85
cargo comes to rest on the pier, wharf or terminal ad-
joining navigable waters necessarily means that the exten-
sion of coverage in unloading cargo ends at that point;
and conversely, the extension of coverage in loading
begins when the longshoring operation begins. As noted
above, it is fully recognized that the Benefits Review
Board, consistent with industry practice, has held that
the Act extends to “stuffing” or “unstuffing” of containers
because that is the point that the longshoring operation
begins or ends. But here, the industry practice and the
applicable union contracts quite specifically provide that
the longshoring operation begins with the removal of the
cotton bales from the pile, or warehouse, and the long-
shoring operation ends with the placement of the cotton
bales in the pile, or warehouse. Claimant was not engaged
in loading a vessel and, hence, was not engaged in mari-
time employment at the time of injury. Kenneth E. Powell
v. Cargill, Inc., 74-LHCA-172 (1974); John A. Richard-
son v. Great Lake Storage & Contracting Co., 74-LHCA-
223 (1974). The presumption of Section 20 is self limit-
ing, i.e., “in the absence of substantial evidence to the
contrary”; has no quality of affirmative evidence, John
W. McGrath Corporation v. Hughes, 264 F.2d 314, 317
(2nd Cir. 1959); “Its only office is to control the result
where there is an entire lack of competent evidence.”
Del Vecchio v. Bowers, 296 U.S. 280, 286 (1935); and
as to jurisdiction does not become effective until juris-
diction is first affirmatively established and only then does
the coverage presumption become effective. Atlantic
Stevedoring Company, Inc. v. O’Keeffe, 220 F.Supp. 881
(S.D. Ga. 1963) rev'd on other grounds, 354 F.2d 48
(5th Cir. 1965); Employers Mutual Liability Insurance
Company of Wisconsin v. Arrien, 244 F.Supp. 110 (N.D.
86
N.Y. 1965). Employer-Carrier have come forward with
substantial stipulated evidence and even a liberal construc-
tion may not be employed to frustrate the Congressional
intent as evidenced by the new definition of “employee”,
the Committee Reports and the related legislative history.
Diverson Ford v. P. C. Pfeiffer Company, 74-LHCA-181
(1974).
The exclusion of the driver of the dray wagon from
coverage, as conceded by the Solicitor, in the event of
injury while working with the cotton headers in unload-
ing bales from the dray wagons and storing the bales in
the warehouse would perpetuate the disparity in benefits
payable to employees performing the same job; but, if
Claimant were otherwise covered by the Act, the non-
coverage of a fellow employee could not deprive an em-
ployee otherwise covered of the benefits of the Act. Cf.,
driver of truck in Giacomo Avvento v. Hellenic Lines,
Ltd.. BRB No. 74-153 (1974).
For the foregoing reasons, Claimant was not an em-
ployee within the meaning of Section 2(3) of the Act
and compensation for his injury is not within the cover-
age of Section 3(a) of the Act. Accordingly, Employer
and Carrier’s Motion to Dismiss for lack of jurisdiction
will be granted and Claimant’s claim will be denied as
not within the coverage of the Act. In view of the denial
of the claim for compensation, the further claim of
Claimant’s attorney for the allowance of an attorney’s
fee, medical expenses and costs must also be denied.
Director Office of Workmen’s Compensation Programs v.
Hemingway Transport, Inc., BRB No. 74-129 (1974);
John Karacostas, Sr. v. Port Stevedoring Company, Inc.,
BRB No. 74-176 (1974); Leo F. Baum v. Jacksonville
87
Shipyards, Inc., 74-LHCA-88, aff'd BRB No. 74-110
(1974).
ORDER
The claim of Claimant, Will Bryant, be, and the same
is hereby, dismissed for lack of jurisdiction.
The claim of Claimant's attorney for allowance of an
attorney’s fee, medical expenses and costs be, and the
same are hereby, dismissed for lack of jurisdiction.
/s/ WILLIAM B. DEVANEY
William B. Devaney
Administrative Law Judge
Dated: February 28, 1975
Washington, D.C.
88
APPENDIX E
U.S. DEPARTMENT OF LABOR
Benefits Review Board
WASHINGTON, D.C. 20210
BRB NOS. 75-137 and 75-137A
WILL BRYANT, Claimant-Petitioner
Vv.
AYERS STEAMSHIP COMPANY
and
TEXAS’ EMPLOYERS’ INSURANCE ASSOCIATION
Employer/Carrier-Respondents
DIRECTOR, OFFICE OF WORKERS’ COMPENSA-
TION PROGRAMS, UNITED STATES DEPART-
MENT OF LABOR
Petitioner
Appeal from Decision and Order of William B. De-
vaney, Administrative Law Judge, United States
Department of Labor.
Arthur L. Schechter (Downman, Jones & Schechter),
Houston, Texas, for the claimant.
E. D. Vickery, W. Robins Brice (Royston, Rayzor,
Cook & Vickery), Houston, Texas for the employer/
carrier
Joshua T. Gillelan, II (William J. Kilberg, Solicitor
of Labor, Laurie M. Streeter, Associate Solicitor),
Washington, D. C., for Director, Office of Workers’
Compensation Programs, United States Department
of Labor.
89
Before: Washington, Chairperson, Hartman and
Miller, Members.
Miller, Member:
These appeals by the claimant and by the Director,
Office of Workers’ Compensation Programs (hereafter,
the Director), are from a Decision and Order (74-LHCA-
89) of Administrative Law Judge William B. Devaney, in
which he found lack of jurisdiction over this claim for
compensation, filed pursuant to provisions of the Long-
shoremen’s and Harbor Workers’ Compensation Act, as
amended, 33 U.S.C. § 901 et seq. (hereafter referred to as
the Act).
All pertinent facts, including degree of disab‘lity and
amount of compensation due if the claimant were found
to be subject to the Act, were stipulated by the parties.
All parties waived formal hearing and oral argument and
agreed that the case be submitted for decision on the
agreed stipulations of fact. The administrative law judge
found the sole issue for determination to be “jurisdiction”,
specifically, whether or not a cotton header, injured while
unloading cotton bales from a dray inside a pier-side ware-
house, is subject to the provisions of the Act. The ad-
ministrative law judge determined that the “claimant was
not an ‘employee’ within the meaning of Section 2(3) of
the Act and compensation for his injury is not within the
coverage of Section 3(a) of the Act”. 33 U.S.C. §§902
(3), 903(a). Therefore, he dismissed the claim for lack
of jurisdiction. From this denial of compensation, both
the claimant and the Director appeal.
The employer is a ship agency and terminal operator.
As a terminal operator, it receives cargo for temporary
90
storage in a pier-side warehouse. Cotton bales are held
in such a warehouse for periods averaging one week, then
moved out and placed on board a vessel. The company
does not provide stevedoring services to ships, but rather
contracts with other companies to move cargo to or from
the warehouse and ships.
The claimant was employed as a cotton header. His
duties were to assist another cotton header and the
driver of a dray in unloading bales of cotton from the dray
and placing them in a warehouse located immediately
adjacent to Pier 23 at Galveston, Texas. The claimant's
duties never required him to assist in moving cargo from
a warehouse to a ship or to work on board a vessel, but
on occasion he did participate in movement of cargo
from one warehouse to another. On May 2, 1973, the
claimant injured his right hand while unloading~ bales
of cotton from a dray.
The jurisdictional requirements of the Act 2re embodied
in Sections 2(3), 2(4) and 3(a). 33 U.S.C. §§ 902(3),
902(4) and 903(a). There is no dispute that the em-
ployer is an “employer” as defined in Section 2(4). The
parties stipulated that the claimant’s accident occurred in
a warehouse immediately adjacent to a pier which adjoins
navigable waters. This is an apparent concession that the
injury was sustained in a geographic area within the
“situs” jurisdiction of Section 3(a). However, in his De-
cision and Order, the administrative law judge found that
the injury in this case did not come within Section 3(a)
coverage.
Although the parties apparently stipulated that the
claimant sustained his injury within the geographic reach
of the Act, such a stipulation is not binding on the fact-
91
finder. California Ship Service Co. v. Pillsbury, 175 F.2d
873 (9th Cir. 1949). While the parties did not address
Section 3(a) in their written submissions to the admini-
Strative law judge, he nevertheless rejected the apparent
concession that the “situs” requirement of jurisdiction
was met and found that this claim is not within the cover-
age of Section 3(a) of the Act. This conclusion is erron-
eous.
There is little evidence in the record of the geographic
relationship between the site of the warehouse where the
claimant was injured and navigable waters. Nevertheless,
it is clear from the record that the employer is a terminal
operator; that the claimant’s accident occurred in a ware-
house immediately adjacent to Pier 23; that the pier ad-
joins navigable waters of the United States; that this pier-
side warehouse is used for the temporary storage of cotton
prior to loading a ship; and that usually cotton is taken
directly from that warehouse to a ship and loaded aboard.
Given these facts, stipulated by the parties, and found by
the administrative law judge, his conclusion that the
claimant was “not injured upon the navigable waters nor
on any adjoining pier, wharf, dry dock, terminal, building
way, marine railway or other adjoining area customarily
used by an employer in loading unloading, repairing, or
building a vessel’ (emphasis added) is clearly erroneous
as a matter of law. The clear language of Section 3(a)
includes the pierside warehouse where this claimant was
injured.
The issue most strenuously pursued before the ad-
ministrative law judge and again here on appeal, concerns
whether or not the claimant is an “employee” as defined
in Section 2(3). The administrative law judge determined
that the claimant was not engaged in maritime employ-
92
ment, that he was not engaged in longshoring operations,
and so was not a Section 2(3) employee. This conclusion
is erroneous as a matter of law.
Section 2(3) does not require that a claimant be en-
gaged in moving cargo to a ship for immediate placement
aboard, or in removing cargo from a ship, in order to
qualify as an “employee”; he need only be engaged in
longshoring operations, which include all essential steps
in the overall process of loading cargo; his duties need
only constitute an integral part of the continuous long-
shoring operation to support a conclusion that he was
engaged in maritime employment. Scalmato v. Northeast
Marine Terminal Co., 1 BRBS 461, BRB No. 74-203
(May 7, 1975).
Contrary to the position of the administrative law judge,
this Board does not subscribe to a “point of rest” theory,
in which cargo is maritime in nature and those who
handle it are engaged in maritime employment, only when
that cargo is being moved from a dock to a ship. See Ford
v. P.C. Pfeiffer Co., Inc., 1 BRBS 367, BRB Nos.
74-191, 191A (Mar. 21, 1975). The legislative history of
the Act clearly indicates that all cargo handling opera-
tions performed on land within the confines of a terminal
are to be covered.
. . . It is also to be noted that with the advent of
modern cargo-handling techniques, such as contain-
erization 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 . . . should not depend
on the fortuitous circumstance of whether the injury
occurred on land or over water.
93
H.R. Rep. No. 92-1441, 92nd Cong., 2d Sess. 10 (1972).
The Board finds that the claimant’s job in this case,
unloading cotton bales from a truck in a pierside ware-
house, was the first step in a longshoring operation which
would eventually conclude at some future date with
placement of the cotton in the hold of a ship. See Powell
v. Cargill, Inc., 1 BRBS 503, BRB Nos. 74-206, 206A
(May 30, 1975). The administrative law judge misinter-
preted Section 2(3) of the Act in determining that the
claimant was not an “employee” as defined in that section.
This case is hereby remanded to the administrative law
judge for entry of a compensation order in favor of the
claimant, consistent with this opinion.
/s/ JULIUS MILLER
Julius Miller, Member
We Concur:
/s/ RUTH V. WASHINGTON
Ruth V. Washington, Chairperson
/s/ RALPH M. HARTMAN
Ralph M. Hartman, Member
Dated this 13th day
of November, 1975
94 95
SERVICE SHEET Judge William B. my J mia
inistrati aw eS
BRB Nos, 75-137 & 137A ag ne (oneal
WILL BRYANT v. AYERS STEAMSHIP COMPANY Washington, D. C. 20036
and TEXAS EMPLOYERS’ INSURANCE ASSOCIA- ‘5 Wate be.
TION - DIRECTOR, OFFICE OF WORKERS’ COM- arenwaagg FF. _
PENSATION PORGRAMS, UNITED STATES U. S. Department of Labor
DEPARTMENT OF LABOR (74-LHCA-89) Suite $3524, New Labor Building
Arthur L. Schechter, Esquire certified Washington, D. C. 20210
Downman, Jones & Schechter, Esquires
1200 Houston First Savings Building
711 Fannin
Houston, Texas 77002
E. D. Vickery, Esquire certified
W. Robins Brice, Esquire
Royston, Rayzor, Cook and Vickery
3701 One Shell Plaza
Houston, Texas 77002
Miss. Laurie M. Streeter
Associate Solicitor
U. S. Department of Labor
Suite N-2716-New DOL
Washington, D. C. 20210
Mr. Lee H. Hollis
Deputy Commissioner
U. S. Department of Labor
U. S. Post Office Building, Suite 212
601 Rosenberg
Galveston, Texas 77550
Joshua T. Gillelan, II certified
Attorney
Division of Employee Benefits
U. S. Department of Labor
Washington, D. C. 20210
96
APPENDIX F
NO. 75-1051
I.T.O. Corporation of Baltimore, Employer,
and
Liberty Mutual Insurance Company, Carrier,
Petitioners,
V.
Benefits Review Board, U. S. Department of Labor,
Respondent,
William T. Adkins, Respondent,
International Longshoreman’s Association, Amicus Curiae
NO. 75-1075
Maritime Terminals, Inc., and
Aetna Casualty and Surety Co.,
Petitioners,
V.
Secretary of Labor, and Donald D. Brown,
Respondents.
NO. 75-1196
Maritime Terminals, Inc., and
Aetna Casualty and Surety Co.,
Petitioners,
V.
Vernie Lee Harris, and
United States Department of Labor,
Respondents
97
NO. 73-1088
National Association of Stevedores
and
California Stevedore & Ballast Co.,
Carolina Shipping Company, |
The Chesapeake Operating Company,
Cilco Terminal Co., Inc.,
John T. Clark & Son of Boston,
Bernard S. Costello, Inc.,
Dixie Stevedores, Inc.,
Eller & Company, Inc.,
Global Terminal & Container Services, Inc.,
Federal Marine Terminals, Inc.,
Gulf Stevedore Corp., .
Harrington & Company, Inc.,
Howland Hook Marine Terminal Corp.,
Independent Pier Co.,
International Great Lakes Shipping Co.,
International Terminal Operating Co., Inc.,
Lake Charles Stevedores, Inc., |
Lavino Shipping Co.,
Luckenbach Steamship Co., Inc.,
McCabe, Hamilton & Renny Co., Ltd.,
John W. McGrath Corp.,
Maher Terminals, Inc.,
Matson Terminals, Inc.,
Metropolitan Stevedore Co.,
Nacirema Operating Co., Inc.,
New Bedford Stevedoring Corp.,
Northeast Marine Terminal Co., Inc.,
Old Dominion Stevedoring Corp.,
John J. Orr & Son, Inc.,
98
Palmetto Shipping & Stevedoring Co., Inc.,
Pate Stevedoring Co.,
P. C. Pfeiffer Co., Inc.,
Pittston Stevedoring Corp.,
Port Stevedoring Company, Inc.,
Ryan-Walsh Stevedoring Co., Inc.,
Shippers Stevedoring Co.,
E. Smith & Son, Inc.,
Strachan Shipping Co.,
Transoceanic Terminal Corp.,
Universal Maritime Service Corp.,
Westfall Stevedore Co.,
Wilmington Shipping Co.,
Young and Company of Houston,
its member companies,
Petitioners,
v.
Benefits Review Board, U. S. Dept. of Labor,
Respondent,
William T. Adkins,
Respondent.
On Rehearing In Banc.
Argued May 4, 1976 Decided Aug. 26, 1976
Before HAYNSWORTH, Chief Judge, WINTER, CRA-
VEN, BUTZNER, RUSSELL and WIDENER, in banc.
2. eres setem, teres
ee I Tw ee ee
99
David R. Owen (Francis J. Gorman, Semmes, Bowen &
Semmes on brief) for Petitioners in 75-1051; John B.
King, Jr. (Vandeventer, Black, Meredith & Martin on
brief) for Petitioners in 75-1075 and 75-1196; Donald
A. Krack (William S. Stifler, III, Paul B. Lang, Niles,
Barton & Wilmer, Thomas D. Wilcox, on brief) for Pe-
titioners in 75-1088; Linda L. Carroll, Attorney (Wil-
liam J. Kilberg, Solicitor of Labor, Marshall H. Harris,
Associate Solicitor, George M. Lilly, Karen L. Gilbert,
Attorneys, United States Department of Labor, on brief)
for Respondents in 75-1051, 75-1075, 75-1080 and
75-1196; Amos I. Meyers (Terry Paul Meyers on brief)
for Respondents in 75-1051 and 75-1088; Charles S.
Montagna for Respondents in 75-1075 and 75-1196;
Thomas W. Gleason, Jr. (Herzl S. Eisenstadt, Richard
H. Kapp on brief) for International Longshoremen’s As-
sociation, AFL-CIO as Amicus Curiae.
WINTER, Circuit Judge:
These consolidated appeals present two major ques-
tions: (1) the extent of coverage of the 1972 Amend-
ments to the Longshoremen’s and Harbor Workers’ Com-
pensation Act, 33 U.S.C. §§901 ef seg. (sometimes
“LHWCA”), to persons engaged in the necessary steps
in the overall process of loading and unloading a vessel
but who, prior to the Amendments, could claim benefits
for accidental injury or death, sustained in the process,
only under state law; and (2) whether, in a petition for
review under 33 U.S.C. § 921(c), the Director, Office
of Workers’ Compensation Programs, Department of La-
bor, is a proper respondent. The appeals were first heard
100
and decided by a divided panel of the court. I.T.O.
Corp. v. Benefits Review Bd., 529 F.2d 1080 (4 Cir.
1975). Chief Judge Haynsworth and I, comprising the
majority, held that during the loading and unloading pro-
cess the coverage of the Act extended to the first (last)
point of rest. As applied to the facts, this holding resulted
in the conclusion that none of the three claimants was
entitled to benefits. Judge Craven was of a contrary view.
He would have held that the three claimants were en-
gaged in maritime employment on navigable waters of
the United States, as defined in the Act, and hence they
should be entitled to benefits under the Act for their
accidental injuries. The panel was unanimous in deciding
that the Director was not a proper respondent, although
it was recognized that, in a proper case, he might be per-
mitted to become an intervenor.
Because of the importance and novelty of the questions
decided, the entire court granted cross-petitions for re-
hearing and reheard the appeals in banc. At the time the
appeals were reargued, the in banc court consisted of six
judges.
I.
On the issue of the extent of the Act’s coverage, Chief
Judge Haynsworth, Judge Russell and I subscribe to the
views expressed in the majority panel decision. Judge
Widener subscribes to the principle expressed in that
opinion, although he defines the exact point between cov-
erage and non-coverage somewhat differently.
In his application of the principle, Judge Widener
concludes that the claimant Adkins is not covered by the
Act, but that claimants Brown and Harris are covered. He
reasons that the test of coverage is whether an otherwise
101
eligible employee is injured while engaged in loading or
unloading a ship; coverage would not extend to activities
for transshipment of goods removed from a ship or goods
destined for a ship. In Adkins’ case, a container was re-
moved from the ship and stored in the marshaling area.
From there the container was moved to a shed where it
was stripped and the contents were stored. Adkins was
injured when he was moving the contents from the storage
area onto a waiting delivery truck. The cargo was no
longer being unloaded from the ship but was in the pro-
cess of being loaded into a delivery truck. Adkins, in
Judge Widener’s view, was thus not covered because he
was not participating in the unloading process; he was
handling the goods for transshipment. Accordingly, Judge
Widener concurs in the judgment of Chief Judge Hayns-
worth, Judge Russell and me to reverse Adkins’ award.
In Brown’s case, the cargo was brought from some-
where inland and deposited in a warehouse. Brown, op-
erating a forklift, picked up cargo and stuffed it into a
container. While stuffing the container, Brown was injured.
When the stuffing would have been completed, a hustler
would have carried the container to the marshaling area,
and from there the container would have been taken to
the pier to be loaded on board. Thus, in Judge Wide-
ner’s view, Brown was engaged in the overall process of
loading the ship. The cargo was not merely being moved
to storage for convenience or facility; the cargo was in the
process of being loaded on board ship, and Brown was
engaged in the loading process. Accordingly, Judge Wide-
ner concurs in the judgment of Judge Craven and Judge
Butzner to sustain the award made to Brown.
Harris was a hustler who was injured while he was tak-
ing a container, stuffed with goods which had been stored
102
after inland delivery, from the stuffing area to the mar-
shaling area. From the marshaling area, the container
would have been taken to the pier where it would have
been loaded on board. The goods were being moved
solely for loading purposes, not for mere convenience,
and, therefore, in Judge Widener’s view, Harris, like
Brown, was engaged in the overall process of loading the
ship. Accordingly, Judge Widener concurs in the judg-
ment of Judge Craven and Judge Butzner to sustain the
award made to Harris.
Judge Craven and Judge Butzner subscribe to the
views expressed by Judge Craven in his dissenting panel
opinion, and for those reasons and the additional reasons
expressed by Judge Butzner in his separate opinion at-
tached hereto, they vote to affirm the awards made to
Adkins, Brown and Harris.
By the
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