# Appendix — P. C. Pfeiffer Co. v. Ford > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0853%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1977 - **Citation:** 433 U.S. 904 ## Text Supreme Court U a Fit —- D NOV 8 }876 re ca 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 —— “ eee pt nat Crt del Dei ANE Ree 5 ae Wa ed: ae bare ee ee ee ee ee 159 task of statutory construction in determining what con- stitutes “maritime employment” or being a “longshoreman or other person engaged in longshoring operations”— which task could be performed satisfactorily only in the light of an extensive factual background detailing the structure of work on the various piers of this country. The following are illustrative of facts we would like to know but on which these records shed little or no light, even as regards the port of New York, let alone the rest of the nation. Does one gang normally take cargo off or on the ship while another is responsible for transporta- tion beyond the “point of rest”? Does the same gang always, sometimes, or often perform both jobs? Is ail work on the pier normally conducted by a single em- ployer or is there a division between the stevedore and the “terminal operator”? Even if there is only one em- ployer, does he segregate the employees in their work assignments, by having different collective bargaining agreements or otherwise? Are separate charges made for services beyond the “point of rest” and, if so, for what? Does the “point of rest” shift about on the same pier? Just what is the normal practice for stripping and stuffing containers with goods belonging to different owners or destined to different consignees? Is this work normally done on the pier or in warehouses not adjoining navi- gable waters? What determines the choices? Does the hazardous nature of the employment stop at the point of rest or continue so long as the cargo is on the pier? Do the hazards change in frequency or degree as the longshoreman moves away from the water? The con- solidation of several cases presenting different factual situations in a single large proceeding might have en- abled the BRB to make meaningful distinctions. Instead 160 of developing such a record and laying down guidelines for the ALJ’s, the BRB has handled each case on an individual basis,’ and without establishing any record support for the interpretative rules announced therein. If we were sitting as a court of last resort, we would remand these cases to the BRB on our motion with directions to cause such a hearing to be held. But with the cases in their present posture in this circuit and others, we think it more helpful for us to state our views on what is now before us.”* B. Perhaps the most useful way to approach the issue is to begin by discussing certain arguments we have not found to be particularly helpful. (1) The “presumption” of coverage, 33 U.S.C. § 920. The claimants, the Solicitor of Labor, and the ILA place great reliance on a provision in the LHWCA as originally adopted in 1927; 33 U.S.C. § 920, and still in effect, that four things shall be presumed in the absence of substantial evidence to the contrary. One of these is “(t]hat the claim comes within the provisions of this chapter.” 33 U.S.C. § 920(a). They contend that if the meaning of the new coverage provision, 33 U.S.C. § 903, 12. We were told at argument that in the /.7.0. case the NAS tendered to the BRB a “Brandeis brief” intended to give the BRB some of the general information we have mentioned, outlining the division of labor in 45 ports in the United States; that the tender was rejected on the objection of the Solicitor on behalf of the Director, OWCP; but that the document was discussed at oral argument in the Fourth Circuit and has been referred to in other decisions of the BRB. We have not had even that much assistance. 13. If one or more of the other circuits seized of this problem should order such a remand, we would entertain a petition for rehearing to enable us to do the same. Sn ty alles Meniad 161 is in any way doubtful, this presumption requires the doubt to be resolved in favor of coverage. We do not think this was what Congress had in mind; the very fact that the presumption can be overcome by substantial contrary evidence indicates its inapplicability to an in- terpretative question of general import such as this. See Crowell v. Benson, 285 U.S. 22, 64-65 (1932). Even in cases holding that the accordion-like phrase “arising out of and in the course of employment,” 33 U.S.C. § 902(2), could be widely stretched, the Court has done little more than mention the presumption, Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 474 (1947): O’Keefe v. Smith, Hinchman & Grylis Associ- ates, Inc., 380 U.S. 359, 361 (1965) (per curiam), rest- ing its decision mainly on the principle with respect to the scope of review discussed below. In O’Leary v. Brown- Pacific-Maxon, Inc., 340 U.S. 504 (1951), the Court did not rely on the presumption at all, even in the face of a strong dissent. The Court’s decisions dealing with questions of coverage of the sort presented here will be searched in vain for any mention of the presumption, see, e.g., Parker v. Motor Boat Sales, Inc., 314 U.S. 244 (1941); Norton v. Warner Co., 321 U.S. 565 (1944); Calbeck v. Travelers Ins. Co., supra, 370 US. 114 (1962); Nacirema Operating Co., Inc. v. Johnson, supra, 396 U.S. 224 (1969),"* although in Norton and Nacirema coverage was rejected. The cases in this court, Michigan Mutual Liability Co. v. Arrien, 344 F.2d 640, 645-46 14. In Davis v. Department of Labor, 317 U.S. 249, 256 (1942), the Court noted that with respect to the largely “factual questions” relating to whether an employee injured within the “twilight zone” of federal jurisdiction established by the Court should be compen- sated under state or federal law, “presumptive weight” should be given to the findings of the federal or state administrator of the respective program, and relied in part on § 920(a). 162 (2 Cir.), cert. denied, 382 U.S. 835 (1965), and Over- seas African Construction Corp. v. McMullen, 500 F.2d 1291, 1296 (2 Cir. 1974), likewise treat the presumption as merely an embodiment of the “rule . . . that so long as any reasonable inference from the facts supports juris- diction under the statutory presumption that jurisdiction may be found.” 500 F.2d at 1296. Here the question is not whether a line established by Congress is sufficiently elastic to include the claimant; the main issue is whether Congress placed the line at the “point of rest” or much further landward. Only if we have made the latter basic decision might the presumption come into play in ruling on cases near the border. See Davis v. Department of Labor, 317 U.S. 249 (19). (2) “Deference” to the BRB. We likewise see no merit in the contention of claimants and the Solicitor of Labor that we are confined in our decision because of the defer- ence owed to the BRB. We agree that the standard of review we must apply is that factual findings of the BRB are conclusive if supported by substantial evidence in the record considered as a whole since, as held in Potenza v. United Terminals, Inc., 524 F.2d 1136 (2 Cir. 1975), it is of no moment that 33 U.S.C. § 921(b)(3) while applying this standard to the BRB’s review of the ALJ’s findings of fact does not expressly extend it to review in the court of appeals. But we are still confronted with the ever troubling question whether the determination at issue, namely, whether the 1972 Amendments should be so interpreted as to include these claimants, is the kind of question which justifies or requires judicial deference. We think it is time to recognize, in line with Professor Kenneth Culp Davis’ brilliant discussion, 4 Administrative 163 Law Treatise §§ 30.01-.09 and the corresnonding sections in the 1970 Supplement, that there are two lines of Supreme Court decisions on this subject which are analytically in conflict, with the result that a court of appeals must choose the one it deems more appropriate for the case at hand.'® Leading cases supporting the view that great deference must be given to the decisions of an administrative agency applying a statute to the facts and that such decisions can be reversed only if without rational basis are Rochester Telephone Corp. v. United States, 307 U.S. 125, 146 (1939); Gray v. Powell, 314 U.S. 402, 411-12 (1941); and NLRB v. Hearst Publications, Inc., 322 U.S. 111, 130-31 (1944). The rationale of these decisions was ap- plied in the three “arising out of and in the course of em- ployment” Supreme Court cases under the LHWCA— Cardillo, O’Leary and O'Keefe, cited above. Indeed, the Court seems to have rejected the findings of the LHWCA’s Deputy Commissioners only once since the statute was en- acted, Norton v. Warner Co., supra, 321 U.S. 565. How- ever, there is an impressive body of law sanctioning free substitution of judicial for administrative judgment when the question involves the meaning of a statutory term. 15. Our discussion of the Court’s ambivalence with respect to deference is not to be read a# dealing with two problems quite different from that here presented. One concerns an agency’s exercise of power to formulate substantive rules, where the scope is wide, see, e.g., American Telephone & Telegraph Co. v. United States, 299 U.S. 232 (1936); Addison v. Holly Hill Fruit Products, Inc., 322 U.S. 607 (1944), and the rules once issued, even if only in the form of guidelines, are “entitled to great deference”, Griggs v. Duke Power Co., 401 U.S. 424, 433-34 (1971); Albomarle Paper Co. v. Moody, 422 U.S. 405, 430-36 (1975). The other concerns an agency’s construction of its own rules, see, e.g., Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14 (1945); Udall v. Tallman, 380 U.S. 1, 16-17 (1965); TSO Industries, Inc. v. Northway, Inc., US. ; n. 10 (1976), 44 L.W. 4852, 4855 n. 10 (1976). 164 Illustrative cases are Office Employees International Un- ion, Local No. 11, AFL-CIO v. NLRB, 353 U.S. 313 (1957), and Davies Warehouse Co. v. Bowles, 321 U.S. 144, 150 (1944). In one of its most recent decisions on the subject, Morton v. Ruiz, 415 U.S. 199, 237 (1974), the Court held that “In order for an agency interpretation to be granted deference, it must be consistent with the congressional purpose”; this very nearly eliminates the “deference” principle as regards statutory construction al- together since if the agency’s determination is found by a court to be consistent with the congressional purpose, it presumably would be affirmed on that ground without any need for deference. There are several other reasons not to rest decision on the “deference” approach in these cases. One is that unlike the F.C.C. in the Rochester Telephone case, the Bitumin- ous Coal Division of the Department of the Interior in Gray v. Powell, or the NLRB in the Hearst case, the BRB is not a policy making but entirely an umpiring agency. When Congress has charged an agency with the duty to make and implement a national policy, it is more likely that Congress intended the agency to have some flexibility, free from judicial intrusion, in interpreting the Congress- ional grant. Compare Rochester Telephone Corp. v. United States, supra, 307 U.S, at 146; Permian Basin Area Rate Cases, 390 U.S. 747, 767 (1963). A second factor is the way in which the agency has gone about its job. As suggested above, we would be much more inclined to defer to a con- sidered judgment of the BRB rendered on a full record than to this series of short opinions on isolated facts which con- tain no in-depth study of the problem. A somewhat re- lated point is that although the BRB’s decisions have been “consistent and contemporaneous,” the issue arose almost oe sO A a ee re BB es Hee et - te eee eee nee 8 a ee ee er EE ee a 165 immediately after the 1972 Amendments became effective at a time when the BRB had little experience in the ad- ministration of the Act; yet its initial decisions, surely not the result of any great expertise, became the basis for all the others. “[A]n agency may not bootstrap itself into an area in which it has no jurisdiction by repeatedly violating its statutory mandate.” FMC vy. Seatrain Lines, Inc., 411 U.S. 726, 745 (1973). Finally, this is a case where under- standing of the statute depends in no small measure on prior judicial decisions and legislative history—subjects on which a court has a greater competence than the BRB. We therefore reject the argument that the BRB’s decisions in these cases must be affirmed if they are rational but wrong. (3) Other definitions. We likewise give little weight to arguments made on both sides which are based on de- finitions of “longshoreman” or maritime employment or contracts formulated in different contexts and for differ- ent purposes. The ILA relies on Congress’ approval, Act of Aug. 12, 1953, ch. 407, 67 Stat. 541, of definitions (reproduced in the margin)'* in a compact between New 16. See ILA Amicus brief at 5-6 n. 1. The definitions in the Bi- State Compact can be found at § 9806 of McKinney’s Unconsolidated New York Laws and § 32:23-6 of N.J.S.A. “Pier” shall include any wharf, pier, dock or quay. “Other waterfront terminal” shall include any warehouse, depot or other terminal (other than a pier) which is located within one thousand yards of any pier in the Port of New York district and whick is used for waterborne freight in whole or substantial part. “Longshoreman” shall mean a natural person, other than a hiring agent, who is employed for work at a pier or other water- front terminal, either by a carrier of freight by water or by a stevedore (a) physically to move waterborne freight on vessels berthed at piers, on piers or at other waterfront terminals, or (b) to engage in direct and immediate checking of any such 166 York and New Jersey creating the bi-state Waterfront Commission. To assume that the 1972 Congress had in mind this action of its predecessor of 1953 is to attribute a degree of acumen few Congressmen would claim. Be- yond that, the purposes of the two enactments were quite different; it is for that reason that paragraph of the Waterfront Commission Act includes persons, notably clerical workers, clearly not embraced under the most lib- eral construction of the 1972 Amendments. On the other hand, a narrow definition of “longshoring operations”’’ formulated by the Secretary of Labor in 1960 as part of safety regulations issued in respect of “all employments covered by this chapter,” 33 U.S.C. § 941(a), is likewise not dispositive of the meaning of the words used in the Amendments since under the old statute covered employment was limited to injuries oc- curring “upon the navigable waters of the United States (including [only] any drydock).” And despite the defini- tion of “carriage of goods” as covering “the period from the time when the goods are loaded on to the time when they are discharged from the ship” contained in the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. freight or of the custodial accounting therefor or in the recording or tabulation of the hours worked at piers or other waterfront terminals by natural persons employed by carriers of freight by water or stevedores .... “Stevedore” shall mean a contractor (not including an em- ployee) engaged for compensation pursuant to a contract or arrangement with a carrier of freight by water, in moving waterborne freight carried or consigned for carriage by such carrier on vessels of such carrier berthed at piers, on piers at which such vessels are berthed or at other waterfront terminals. 17. * * * the loading, unloading, moving or handling of cargo, ships stores, gear, etc., into, in, on, or out of any vessel on the navigable waters of the United States. 25 Fed. Reg. 1566 (1960), 29 C.F.R. 9.3(i). ee tt Se 167 § 1301(e), we have held that the contract of Carriage, obviously a maritime contract, persists after unloading and that the carrier remains liable, not as a carrier but as a bailee, until it delivers the cargo to the consignee or places it in a public dock or warehouse. David Crystal, Inc. v. Cunard Steamship Co., 339 F.2d 295, 298 (2 Cir. 1964), cert. denied, 380 U.S. 976 (1965); Leather’s Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800, 811-12 (2 Cir. 1971); Cameco, Inc. v. S.S. American Legion Lines, 514 F.2d 1291, 1295-96 (2 Cir. 1974). (4) Liberal construction of remedial legislation. There is more force in the contention of the claimants and the Solicitor that a broad reading of the 1972 Amendments is required by the oft-iterated principle that remedial legislation should be construed liberally. The Supreme Court said, as to this very statute, although in a quite different context, Voris v. Eikel, 346 U.S. 328, 333 (1953): This Act must be liberally construed in conform- ance with its purpose, and in a way which avoids harsh and incongruous results. Petitioners do not altogether overcome this point by arguing that a statute must be construed with reference to the mischief intended to be overcome, see Heydon’s Case, 3 Co. Rep. 7a, 76 Eng. Rep. 637 (1584), and that all that Congress intended to “remedy” was the unjust result of Nacirema Operating Co. v. Johnson, supra, 396 U.S. 212, by accepting the invitation which, pursuant to Mr. Justice White’s suggestion, the unions extended to it.’ 18. The argument, in fact, flounders on a number of points. The invitation issued in Nacirema was broadly phrased: There is much to be said for uniform treatment of longshoremen 168 The statutory language can fairly be read to do more than that and thus the liberality principle tends in favor of such a reading. C. With this background we address ourselves, at long last, to the words of the statute with the aid of the legis- lative history. There is no question that claimants met the situs test of § 903(a),"* and concededly all worked injured while loading or unloading a ship. But even construing the Extension Act to amend the Longshoremen’s Act would not effect this result, since longshoremen injured on a pier by pier- based equipment would still remain outside the Act. And con- struing the Longshoremen’s Act to coincide with the limits of admiralty jurisdiction—whatever may be and however they may change—simply replaces one line with another whose un- certain contours can only perpetuate on the landward side of the Jensen line, the same confusion that previously existed on the seaward side. While we have no doubt that Congress had the power to choose either of these paths in defining the coverage of its compensation remedy, the plain fact is that it chose instead the line in Jensen separating water from land at the edge of the pier. The invitation to move that line landward must be addressed to Congress, not to this Court. 396 U.S, at 223-24. The Court contemplated at least two possibilities: an extension of the LHWCA to cover longshoremen injured on a pier “while loading or unloading a ship,” or an extension to “coincide with the limits of admiralty jurisdiction.” In the absence of clarifying legislative history, we would have no idea which set of evils referred to in Nacirema Congress was endeavoring to overcome. 19. In the Blundo case the petitioner, 1.T.O. makes a _half- hearted argument that Blundo was not injured on the navigable waters within the expanded definition because the 19th — on which he was injured was not used for the loading or unloading of vessels. This argument flies in the face of the statute, which reads “ . . including any adjoining pier . . . or other adjoining area cus- tomarily used by an employer in loading, unloading, repairing or building a vessel.” (Emphasis added.) It would seem that any pier next to the water is included within the situs definition. Accord, 1.7.0. Corp. of Baltimore v. Adkins, supra, 529 F.2d at 1083-84. The testimony before the ALJ established that Blundo was injured 169 for covered “employers” under the Act; the question is whether each—now Blundo and Caputo—was a “person engaged in maritime employment, including any long- shoreman or other person engaged in longshoring opera- tions... .” § 902(3)”” If there were any doubt on the face of the statute the legislative history makes clear that § 902(3), as here relevant, is to be construed no differently than if it said “any longshoreman or other person engaged in longshor- ing activity or engaged in other maritime employment.” Cf. Argosy Limited v. Hennigan, 404 F.2d 14, 20 (5 Cir. 1968); United States v. Gertz, 249 F.2d 662, 666 (9 Cir. 1957). The Senate Committee on Labor & Public Welfare stated, Sen. Rep. No. 92-1125, 92d Cong. 2d Sess., at 13: It is apparent that if the Federal benefit structure embodied in Committee bill is enacted, there would be a substantial disparity in benefits payable to a at one of two “finger” piers which jutted into the water from the terminal. The entire terminal adjoined the water and was enclosed by a single gate. The finger pier at 21st Street was used for vessels; the finger pier at 19th Street was used to load and unload containers. Blundo was clearly on a “pier” and a “terminal” adjoining the water, a ay which was used for loading and unloading vessels. This is t. 20. Judge Craven, dissenting from the panel opinion in /.7.0., advanced the argument, although he did not base his conclusion on it, that this phrasing might make the inquiry too narrow, since § 902(3) also includes “any harborworker,” 529 F.2d at 1090 n. 3. He cited the statement in 1 Norris, The Law of Maritime Personal Injuries § 3 (3d ed. 1975), that the longshoreman is only “([flirst in the catalogue of harbor workers.” Arguably, however, Congress intended “harbor workers” to refer only to persons similar to those fically described (“any harborworker including a ship repairman, uilder, and shipbreaker”) and not to persons concerned with the movement of cargo. But see Norris, supra, §5. Like Judge Craven we find it unnecessary to decide the point. 170 permanently disabled longshoreman, depending on which side of the water’s edge the acident 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 believes that the compensation pay- able to a longshoreman or a ship repairman or build- er should not depend on the fortuitous circumstance of whether the injury occurred on land or over water. Accordingly, the bill would amend the Act to pro- vide coverage of longshoremen, harbor workers, ship repairmen, ship builders, shipbreakers, and other em- ployees engaged in maritime employment (excluding masters and members of the crew of a vessel) if the injury occurred either upon the navigable waters of the United States or any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other area adjoining such navigable waters customar- ily used by an employer in loading, unloading, re- pairing, or building a vessel. The House Committee Report, No. 92-1441, 92d Cong. 2d Sess. contained identical language. Secondly, and more important, Congress perceived a need to provide expressly for coverage for “any long- shoreman” in addition to what it had established for a person engaged in “longshoring operations.” A “longshore- man” may thus be covered at some times even when he is not engaged in traditional longshoring activity. This alone is sufficient to condemn the “point of rest” doctrine. Peti- tioners concede that persons engaged in moving unloaded cargo to its first point of rest or moving cargo to be loaded from its last point of rest are engaged in “longshoring 171 operations.” If they alone were to be covered, there was no need to provide also for “any longshoreman.” What then did Congress mean by that phrase? Obvious- ly it is not enough that a claimant calls himself a long- shoreman or that a longshoremen’s union in a particular . port has forced employers to hire its members for such unlongshoreman-like positions as clerks or guards. But see Weyerhaeuser v. Gilmore, supra, 528 F.2d at 962. The reports of the Senate and House committees go a long way toward supplying an answer. Immediately after the two paragraphs quoted above came the 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, whe- ther 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 participate 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 amend- ment. Likewise the Committee has no intention of extending coverage under the Act to individuals 172 who are not employed by a person who is an em- ployer, 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 adjoining navigable waters. Two conclusions emerge from this with seeming cer- tainty: One is that Congress was concerned about “the advent of modern cargo-handling techniques, such as containerization and the use of LASH-type vessels,” new facts of life on the waterfront which, as this court noted in /ntercontinental Container Transport Corp. v. New York Shipping Ass’n, 426 F. 884, 886 (2 Cir. 1970), mean that a good deal more of the longshoreman’s traditional jobs are now performed on shore. Stripping a container of goods destined to different consignees is the functional equivalent of sorting cargo discharged from a ship; stuffing a container is part of the loading of the ship even though it is performed on shore and not in the ship’s cargo holds. Congress intended to cover men engaged in these activities if they met the situs test contained in the Act — irrespective of the employee’s position vis-a-vis a “point of rest.” The committees said expressly that “checkers, for example, who are directly involved in the loading or unloading functions are covered by the new amendment.” Congress did not say they were covered only if they unloaded the container at the spot where a crane had first deposited the container or loaded it at a place on the water’s edge; one of the advantages of container is that they permit loading or unloading to be done at less congested locations. It sufficed for coverage if an accident arising from the stripping or stuffing of containers occurs at a place within the situs al a als Het - oe ee ee 173 test. One answer to petitioners argument that stuffing or stripping a container on a pier is no different from doing the same job a mile away is that Congress may have doubted its power, under the admiralty clause of Article III, to go further than it did. This would decide Blundo’s case if he had been “checking” the container at the pier where it was first deposited even if it had been moved several times. We fail to perceive any sig- nificant difference because, for the convenience of some- one, it had been moved to another pier. The cargo had not yet been delivered to the consignee; the unloading process still had not been completed.” The second conclusion is that Congress was con- cerned with providing uniformity of coverage for persons engaged in the loading or unloading functions on the piers. It wished to minimize the occasions when long- shoremen and other harbor workers would be walking from the liberalized benefits of LHWCA to the much lower ones provided by state compensation laws.** Peti- 21. As many admiralty cases have decided, in construing other doctrines of maritime law, a realistic view of the loading or unloading process recognizes that it does not stop as soon as the cargo first hits the pier on being removed from a vessel, nor does it begin only when the cargo stands on the pier next to the vessel on which it is about to be loaded. See Victory Carriers, Inc. v. Law, 404 U.S. 202, 214 at n. 14 (1971), rev’g om other grounds Law v. Victory Carriers, Inc., 432 F.2d 376 (5 Cir. 1970). Frequently large gangs of longshoremen, dozens of men, are assigned different tasks in a continuous process which moves cargo off a vessel ultimately to a warehouse or storage area at the far end of the pier or terminal. Garrett v. Gutzeit, 491 F.2d 228 (4 Cir. 1974). 22. Joseph Leonard, Safety Director of the ILA, in speaking to the House Committee about the former coverage provisions, asked, “What do we do, cut ourselves in half?” Hearings on H.R. 247, H.R. 3505, H.R. 12006, and H.R. 15023 (Longshoremen’s & Harbor Workers’ Compensation Act Amendments of 1972), before the Select Subcomm. on Labor of the House Comm. on Educ. & Labor, 92d Cong., 2d Sess., 297. 174 tioners argue that Congress was concerned with providing uniformity only in the Nacirema situation, where the same employee engaged in the same unloading or loading operation would have been protected by the federal statute if a draft of cargo hit him while he was on the ship but not if his injury occurred on the pier itself, and point to the fact that the illustration used by the committees was a case where cargo is “unloaded from the ship and immediately transported to a storage or holding area on the pier, wharf, or terminal adjoining navigable waters.” But the committees stated their in- tention more broadly — “to permit a uniform compensa- tion system to apply to employees who would otherwise be covered by this Act for part of their activity.” The concern for uniformity was not limited to rectifying the disparity between the longshoreman making up the draft on the ship and the longshoreman receiving it on the pier; it extended to the disparity that would result if a line were drawn between the latter and a longshore- man, perhaps the very same one, who moved the unloaded cargo to another place on the pier.** The committees’ language clearly is broad enough to cover a person like Caputo who spent a significant part of his time in working on vessels, so long as he did not come within the category mentioned as being excluded — employees who are not engaged in loading or unloading a vessei, “{t]hus, employees whose responsibility is only to pick up stored cargo for further trans-shipment.” 23. Congress also expressed interes: in extending federal coverage to as many longshoremen as possible to avoid the “disparity in benefits payable . . . for the same type of injury depending on .. . in which State the accident occurs.” Senate Committee Report, supra, at 12. ee er ee Nr a el Pe Sk RRR se ed ae Re sikh ete ET ee ee. ee eed Conca Be ie es Been Vest ten A 175 Petitioner asserts that Caputo came within both descrip- tions of excluded persons. Clearly he did not come within the second. His responsibility was to perform a variety of jobs on the pier, on both sides of the “point of rest”, in- cluding going on vessels. Also we would not regard the cargo as “stored” within the committees’ meaning simply because the consignees had delayed five days in picking it up.** The question whether he was engaged in loading or unloading (here unloading) is closer. If his injury had occurred while he was moving the boxes of cheese from a previous position on the pier to the consignee’s trucks, he clearly would have been engaged in “unloading,” in the way that term is used in ordinary speech. That being so, it would be wholly artificial to draw a distinction because his injury occurred while he was inside the consignee’s truck. See note 21, supra. To be sure, the carrier would probably have fulfilled its legal duty if it had instructed the stevedores simply to place cargo alongside consignee’s trucks and leave the loading of the trucks to them. But, so far as we can gather from this meagre record, that is not the life of the waterfront. The driver needs help in loading or unloading his truck, it would be uneconomical for him to carry a sufficient supply of helpers, everyone wants the truck off the pier as soon as possible, so the stevedores have their employees lend a hand. It is not clear whether an additional charge is collected for this, but we do not think it matters. Neither do we think it matters that the stevedore might not be liable for mishandling by a long- shoreman within the truck. 24. We thus are not required to decide whether cargo should ever be regarded as “stored” so long as it remains on the pier in the custody of the stevedore employed by the vessel rather than being placed in a public warehouse. Dellaventura’s case, where there was a delay of 133 days, might have demanded such a decision. 176 Petitioners make a significant argument that the high benefits under the Amendments were provided because of the extremely hazardous nature of longshoring and that these extraordinary hazards no longer exist once the cargo is beyond the “point of rest.” Indeed, in Caputo’s case the parties stipulated that what Caputo was doing was the same, and entailed the same risk of injury, as exists wher- ever and by whomsoever trucks are loaded or unloaded with dollies. The Senate Report, p. 2, refers to “high-risk occupations such as those covered by this Act” and says that “[lJongshoring, for example, has an injury frequency rate which is well over four times the average for manu- facturing operations.” What we do not know is what types of operations were considered to be longshoring for the purpose of these calculations. Also, as shown by the case of Blundo who slipped on ice while he was checking the contents of a container that was being stripped on a pier other than the one where the vessel was unloaded, unusual hazards can exist due to the exposure of piers to the ele- ments which would not exist in a manufacturing plant or in a garage or warehouse where containers removed from trucks were being stripped. Doubtless the hazards of long- shoring vary with the particular tasks being performed, and may in some instances be no greater than those encoun- tered by persons doing similar work in places other than piers or terminals adjoining the water’s edge.** However all this may be, we find nothing in the words of the statute or its legislative history that would enable us to construct a “hazard” test; Congress’ intention was rather to provide 25. But see the statement of Representative Hicks of Massachu- setts on the floor of the House. 118 Cong. Rec. 36387 (Oct. 14, 1972). And see House Hearings, supra note 22, at 288-89 (statement of Patrick Tobin, Internat’) Longshoremen’s .and Warehousemen's Union (ILWU)). er Se « ee ee eee 177 uniformity of coverage for workers injured while engaged in the process of loading or unloading ships who met the situs test. We note in this connection that the increased benefits inure to shipbuilders meeting the situs test, al- though much of their work is performed in facilities no more hazardous than those not within the expanded defi- nition of “navigable waters” and that the benefit schedules of LHWCA apply to all industrial accidents in the District of Columbia, Act of May 17, 1928, ch. 612, 45 Stat. 600 (1928), 36 D.C. Code § 501 (1973). In a variation of the argument last considered, peti- tioners contend that because of the higher benefits payable under LHWCA than under state compensation acts, con- struing the Amendments to apply beyond the point of rest will increase the already high expenses of stevedores to an extent that Congress could not have intended. Clearly, as explained at the outset, the act was a trade-off—a gain to the stevedores in doing away with the Sieracki-Ryan tri- angle, a gain to the workers in higher benefits and in mov- ing the Jensen line shoreward. Just how much added cost Congress meant to impose on stevedores by the second part of the bargain is impossible to determine.** What is clear is that Congress had a profound distaste for a regime in which employees engaged in the rough and tumble work 26. It is worth noting that the increased benefits provided by the Amendments followed recommendations of the National Com- mission on State Workmen’s Compensation Laws (Sen. Rep., p. 4), and that Congress may well have expected that enactment of the Amendments would have an effect on state compensation laws. Hear- ings on S. 2318, S. 525, and S. 1547 (Longshoremen’s & Harbor Worker’s Compensation Act Amendments of 1972) before the Sub- comm. on Labor of the Senate Comm. on Labor & Public Welfare, 92d Cong., 2d Sess., at 74 (statement of James O’Brien, Ass’t Dir. Soc’l Sec. Dep’t, AFL-CIO), 149 (statement of Joseph Leonard, Safety Director, ILA). 178 described in the Amendments should be covered under the Federal Act at one moment and under state acts at an- other. We therefore hold that the Amendments at least cover all persons meeting the situs requirements (1) who are engaged in the stripping or stuffing containers or (2) are engaged in the handling of cargo up to the point where the consignee has actually begun its movement from the pier (or in the case of loading, from the time when the consignee has stopped his vehicle at the pier), provided in the latter instances that the employee has spent a signi- ficant part of his time in the typical longshoring activiy of taking cargo on or off a vessel. That is as far as we need to go to affirm Blundo’s and Caputo’s awards; whether the proviso is essential can be left for another day. Petitioners say, as indicated above, that in effect our construction reads the status requirement out of the Act. We concede it goes some way in that direction. But it does not do so completely; we part company with Gilmore & Black when they assert that the committee reports should be disregarded and the Amendments then “can fairly be read to cover all employment-related injuries which occur within the Act’s territorial limits.” The Law of Admiralty, § 6.51 at 430 (1975)."" We believe our position avoids some of the more problematic possibilities lurking in the new “status” requirement, and accords with the liberal interpretation which must be 27. They add that “a female secretary who works in a terminal warehouse should qualify as a LHCA harbor worker in exactly the same way that a female hairdresser in a cruise ship’s beauty salon qualifies as a Jones Act seaman.” /d. We do not find the ana: persuasive. Cruise ships encounter rough weather and may even : terminal warehouses don’t. Cf. Malramas v. American Export Is- brandisen Lines, Inc., 475 F.2d 165 (2 Cir. 1973). 179 given this remedial statute and its remedial amendments. See Comment, Broadened Coverage Under the LHWCA, 33 La. L. Rev. 683, 693 (1973). VI. Constitutionality In so construing the Amendments we have necessarily assumed that the construction would be constitutional. We think that assumption is well founded. It is beyond dispute that “Although containing no express grant of legislative power over the substantive law, the provision [of Article If] as to admiralty and maritime jurisdiction] was regarded from the beginning as implicitly investing such power in the United States.” Panama R.R. Co. v. Johnson, 264 U.S. 375, 386 (1924). The classic definition of the jurisdiction was Mr. Justice Story’s in DeLovio v. Boit, 7 Ped. Cas. 418, 444, Case No. 3776 (C.C.D. Mass. 1815 that it “comprehends all maritime contracts, torts, and injuries. The latter branch is necessarily bounded by locality the former extends over all contracts, (wheresoever they may be made or executed, or whatsoever may be the form of the stipulations) which relate to the navigation, business or commerce of the sea.” Mr. Justice Story used the broad term “locality” in his definition of the jurisdiction with respect to “torts, and injuries.” Although the Supreme Court later defined locality as including only injuries suffered on navigable waters and not injuries on the land caused by a vessel, The Plymouth, 70 U.S. (3 Wall.) 20 (1866), the Court has acquiesced in Congress’ overruling that holding by the Admiralty Extension Act, 46 U.S.C. § 740, which was applied without ques- tion in Gutierrez v. Waterman S.S. Corp., 373 U.S. 206 (1963). See also United States v. Matson Navigation Co., 180 201 F. 2d 610 (9 Cir. 1953), cited with approval in Victory Carriers, Inc. v. Law, 404 U.S. 202, 209 n.9 (1971), in which the Court stated that “if denying federal remedies to longshoremen injured on land is intolerable, Congress has ample power under Arts. I and III of the Constitution to enact a suitable solution.” Id. at 216.°° Most important of all are the statements in Nacirema, supra, 396 U.S. at 223, that “There is much to be said for uniform treatment of longshoremen injured while loading or unloading a ship,” and the suggestion that Congress be invited to do something about this, id. at 397. The Court would scarcely have suggested this if it had entertained doubt as to the constitutionality of a Congressional response. We thus see no reason to question the power of Con- gress to expand the concept of a maritime tort to include injuries suffered by persons on structures adjoining navigable waters in the course of employment related to ships. If we were more doubtful on the point than we are, we would see no reason why the extension of cover- age could not be predicated on the portion of the juris- diction relating to maritime contracts, where there is no “locality” test. Contracts of employment relating to maritime matters are within that jurisdiction, Sheppard v.Taylor, 30 U.S. (5 Pet.) 675 (1831), and claims under LHWCA are by an employee engaged in “maritime em- ployment” against an employer. 28. The Court has also sustained the Jones Act, which accords to seamen a remedy for injuries on land as well as on the sea, as an extension of the remedy of maintenance and cure. O’Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 40-41 (1943). If Sieracki retains any vitality, the constitutionality of the extension of coverage by the Amendments could be supported on this theory. —_—_ — ES 181 The petition to review in Dellaventure’s case is dis- missed as untimely and the petition in Scaffidi’s case is dismissed on the ground that there no longer is a justici- able controversy between the employer and the employee. The petitions in Blundo’s and Caputo’s cases are denied on the merits. LUMBARD, Circuit Judge (concurring and dissenting) I agree that Pittston’s petition seeking review of the award in Scaffidi’s case should be dismissed as there is no justiciable controversy by reason of the insurance carrier’s payment of the award. I also agree that Pittston’s petition to review Dellaventura’s case should be dismissed as untimely filed. With respect to the denial of the petitions in the Blundo and Caputo cases, I respectfully dissent. As the relevant considerations have been so ably and extensively set forth here by Judge Friendly and also by Judge Winter in I.T.O. of Baltimore v. Benefits Review Board, U.S. Dep’t of Labor and Adkins, 529 F.2d 1080 (4th Cir. 1975), no purpose would be served in any further pro- tracted discussion. I agree with Judge Winter that “[t]he 1972 extension of coverage was intended only to remove inequities and anomalies arising when a person otherwise engaged in ‘maritime employment’ was injured on land,” 529 F.2d at 1081, and with his additional statement that “. . . with respect to longshoremen or other persons engaged in longshoring operations, the Amendments extend only to those employees engaged in loading and unloading activities between the ship and the first (last) point of rest, including checkers ‘directly involved in [such] loading or unloading functions,’ ” 529 F.2d at 1088. 182 It is more in keeping with the realities of maritime employment to draw the line at the first point of rest in discharging the cargo and at the last point of rest in loading a vessel. Moreover, such a rule is far easier to apply and avoids claims such as that put forward by Dellaventura that he is entitled to compensation for his injury while loading a consignee’s truck with coffee bags which had been stored in a warehouse for 133 days after being removed from the ship CAMPECHE. This being so, it seems to me that the interpretation adopted by the Fourth Circuit is more consistent with what the Congress intended and with the language of the 1972 amendment. Blundo, a checker employed by I.T.O., was injured while checking cargo being removed from a container. The container was located on a stringpiece of the 19th Street pier in Brooklyn, had been unloaded a few days before at a different pier and had been trucked through the streets to the 19th Street pier to be opened there by United States Customs before the container was stripped. What Blundo did was done well after the container had been left at the first point of rest. Caputo’s principal duties related to terminal labor. When injured he was working at the northeast ma- rine terminal on the Brooklyn waterfront inside the truck of a consignee, while helping the consignee’s truck driver load boxes of cheese which had been discharged from a vessel at least five days before. Thus in Caputo’s case his activity occurred after the boxes of cheese had come to rest on the pier. For these reasons I would grant the petition and set aside the awards in the cases of Blundo and Caputo. a eee ei A ee me ee eee ee 183 APPENDIX I S. Rep. 92-1125, pp. 12-13; H. Rep. 92-1441, pp. 10-11; 1972 U. S. Code Cong. and Administrative News pp. 4707-4708 EXTENSION OF COVERAGE TO SHORESIDE AREAS The present Act, insofar as longshoremen and ship builders and repairmen are concerned, covers only injuries which occur “upon the navigable waters of the United States.” Thus, coverage of the present Act stops at the water’s edge; injuries occurring on land are covered by State Workmen’s Compensation laws. The result is a dis- parity in benefits payable for death or disability for the same type of injury depending on which side of the water’s edge and in which State the accident occurs. To make matters worse, most State Workmen’s Com- pensation laws provide benefits which are inadequate; even the better State laws generally come nowhere close to meeting the National Commission on State Workmen's Compensation Laws recommended standard of a maxi- mum limit on benefits of not less than 200% of statewide average weekly wages. The following are the maximum limits on the compensation payable for permanent total disability in some maritime States: - | eee $70.00 7. eee 56.00 I _ 112.56 Louisiana... » 6G eid laeae | 49.00 A .. 85.68 Massachusetts ........ were _ *77.00 - Ber _ 101.00 oh) PP 80.00 0 eee 62.50 0 . 60.00 Texas peeeebcee tae ee a 49.00 * Plus $6 for each dependent. Also, under the laws of some states due to exemptions based upon the number of employees hired some workers might be uncovered in the event they are unfortunate victim of an injury. It is apparent that if the Federal benefit structure em- bodied 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 per- mitted to continue to apply to injuries occurring on land. It is also to be noted that with the advent of modern cargo-handling techniques, such as containerization and the use of LASH-type vessels, more of the longshoreman’s work is performed on land than heretofore. The Committee believes that the compensation payable to a longshoreman or a ship repairman or builder should not depend on the fortuitous circumstance of whether the injury occurred on land or over water. Accordingly, the bill would amend the Act to provide coverage of long- ee ae ae ree Pe eee Te ee ee eee ee ee Pa a eee 185 shoremen, harbor workers, ship repairmen, ship builders, shipbreakers, and other employees engaged in maritime employment (excluding masters and members of the crew of a vessel) if the injury occurred either upon the navi- gable waters of the United States or any adjoining pier. wharf, dry dock, terminal, building way, marine railway, or other area adjoining such navigable waters customarily used by an employer in loading, unloading, repairing, or building a vessel. 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 adjoin- ing navigable waters used for such activity. Thus, em- ployees 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 participate 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 Com- mittee has no intention of extending coverage under the Act to individuals who are not employed by a person 186 who is an employer, i.e. a person at least some of whose employees are exgaged, 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 adjoining navigable waters. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0853%3A2. Public record. Not legal advice.