Petition — Dravo Corp. v. Maxin

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| Supreme Court, U. .

5 FILED =.

FEB 7 1977

IN THE

Supreme Couri of the United" Stites”: —

OCTOBER TERM, 1976

DRAVO CORPORATION AND

LIBERTY MUTUAL INSURANCE COMPANY,

Petitioners

LOUIS MAXIN AND UNITED STATES

DEPARTMENT OF LABOR, BENEFITS

REVIEW BOARD,

Respondents

THE DIRECTOR, OFFICE OF

WORKERS’ COMPENSATION PROGRAMS,

U. S. DEPARTMENT OF LABOR,

Party Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

FREDERICK N. EGLER,

ROBERT S. GARRETT,

EGLER & REINSTADTLER

2100 Lawyers Building

Pittsburgh, Pennsylvania 15219

Attorneys For Petitioners

SMITH BROS . LAW PRINTERS, 620 SECOND AVENUE. PITTSBURGH, PA. 15219

TABLE OF CONTENTS

PAGE

I ——— — 2

D Oe REDE 2

, Js ̃ ̃ 115 3

Constitutional and Statutory Provisions ................ 4

r 5

Reasons for Granting the Writ n. 8

D ᷑è SE a POD ĩ p aE ek PD 23

t, eee 24

Appendix A (Opinion of the Court of Appeals) 1a

Appendix B (Judgment of the Court of Appeals) 20a

Appendix C (Opinion of Benefits Review Board) 21a

Appendix D (Opinion of Administratrix Law

rr STR TEP NT ee aS 26a

Table of Authorities.

TABLE OF AUTHORITIES PAGE

Halter Marine Fabricators, Inc. v. Nulty, reported

sub. nom. Jacksonville Shipyards, Inc. v. Per-

due, Petition for certiorari filed December 27,

1976, 539 F. 2d 533 (5th Cir., 1976) 8, 21, 22

J. T. O. Corp. of Baltimore v. Ben. Rev. Bd., 529

F.2d 1080 (4th Cir., 1975), opinion en banc,

Petitions for certiorari filed November 19, 1976

and November 24, 1976, 542 F.2d 903 (1976) 17, 18

Nacirema Operating Co. v. Johnson, 396 U. S. 212

/ idee ciicahlecainithiatiiait inode cad searitaiiaes 12

Northeast Marine Terminal, Inc., et al v. Ralph

Caputo, et al, certiorari granted, No. 76-444,

and International Teri inal Operating Com-

pany, Inc. v. Carmelo Blundo, et al, certiorari

granted, No. 76-454, reported sub. nom. Pitts-

ton Stevedoring Corp. v. Deilaventura, 544 F.2d

FL I ee 8, 9, 14, 18, 22

Sea-Land Services, Inc. v. Director, Office of Wkrs.’

Comp., Etc., 540 F.2d 629 (3d Cir., 1976) ........

RS Ae RIEL CRO, Ci EA ORR 8, 9, 11, 18, 19, 20, 21

Stockman v. John T. Clark & Son of Boston, Inc.,

Petition for certiorari filed October 1, 1976,

539 F.2d 264 (Ist Cir., 1976) 9, 15, 16, 18

Weyerhaeuser Company v. Gilmore, Petition for

certiorari denied, October 4, 1976, 528 F.2d 957

IE TIT sc. ssscles encosiedcs enatblicuateeeiadieideuaadaiandaihakans 16

iii

Constitutional Provisions and Statutes.

PAGE

CONSTITUTIONAL PROVISIONS

AND STATUTES

The Constitution:

Article I, Section 8

Article ITI, Section 2, Clause 11 11,12

The Longshoremen’s and Harbor Workers’ Com-

pensation Act, as amended 1972:

, asalednisnbunvanadeebeves 2

IIE 1.1... inn dteinnonianbenioiamiancnnninunnenl 17, 20

I onc eleend nnd 17, 20

ts isiinicensenesabeal 17, 20

OTHER AUTHORITIES

Gilmore and Black, The Law of Admiralty (1975

CCC 14

Supreme Court of the United States

OCTOBER TERM, 1976

DRAVO CORPORATION AND

LIBERTY MUTUAL INSURANCE COMPANY,

Petitioners

LOUIS MAXIN AND UNITED STATES

DEPARTMENT OF LABOR, BENEFITS

REVIEW BOARD,

Respondents

THE DIRECTOR, OFFICE OF

WORKERS’ COMPENSATION PROGRAMS,

U. S. DEPARTMENT OF LABOR,

Party Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioners respectfully pray that a Writ of Cer-

tiorari issue to review the opinion and judgment of the

United States Court of Appeals for the Third Circuit

entered in this case on November 15, 1976.

Jurisdiction.

OPINIONS BELOW

This matter arises under the Longshoremen’s and

Harbor Workers’ Compensation Act, as amended in

1972. The opinion of the Court of Appeals, printed in

Appendix “A” hereto, is as yet officially unreported.

The judgment of the Court of Appeals is printed in Ap-

pendix B“. The decision of the Benefits Review Board,

United States Department of Labor, printed in Appen-

dix C“ hereto, is reported in 2 BRBS 372. The de-

cision and Order of the Administrative Law Judge,

United States Department of Labor, printed in Ap-

pendix “D” hereto, is unreported but there is a synop-

sis in 1 BRBS 61.

JURISDICTION

The judgment of the Court of Appeals dated No-

vember 15, 1976, printed in Appendix “B” hereto, was

entered on November 15, 1976. Jurisdiction of this

Court is invoked under 28 U.S.C. 1254 (1).

Questions Presented.

QUESTIONS PRESENTED

Whether the Longshoremen’s and Harbor

Workers’ Compensation Act, as amended in

1972, represents dn unconstitutional exercise

of the legislative power granted Congress by

Article III, Section 2, Clause 1 of the United

States Constitution to the extent that the Act

as amended in 1972 is construed to extend fed-

eral admiralty and maritime jurisdiction land-

ward without limitation to include all employ-

ees working in new ship construction.

Whether the Longshoremen's and Harbor

Workers’ Compensation Act as amended in

1972 by its terms extends coverage landward

only to employees engaged in maritime em-

ployment and excludes a burner employed in

metal fabrication preliminary to boat building.

Whether the Longshoremen’s and Harbor

Workers’ Compensation Act as amended in

1972 is to be construed as applying to an em-

ployee only if disability or death results from

an injury occurring upon navigable waters or

any adjoining pier, wharf, dry dock, terminal,

building way, marine railway or adjoining area

customarily used by an employer in loading,

unloading, repairing or building a vessel and

as excluding a structural shop separated from

the employer’s boat building facilities.

Constitutional Provisions and Statutes Involved.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

The provisions of the Constitution relevant to this

Petition are Article I, Section 8 and Article III, Section

2, Clause, 1:

The Congress shall have power To make all

Laws which shall be necessary and proper for

carrying into Execution. all other Powers vested

by this Constitution in the Government of the

United States.

The judicial Power shall extend . . to all cases of

admiralty and maritime jurisdiction ....

The relevant portions of the Longshoremen’s and

Harbor Workers’ Compensation Act, as amended, are

as follows:

Section 2(3), 86 Stat. 1251, 33 USC §902(3):

The term “employee” means any person engaged

in maritime employment, including any longshore-

man or other person engaged in longshoring op-

erations, and any harborworker including a ship

repairman, shipbuilder, and shipbreaker .

Section 2 (4), 86 Stat. 1251, 33 USC 5902 (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 ad-

joining pier, wharf, dry dock, terminal, building

way, marine railway, or other adjoining area custo-

marily used by an employer, in loading, unloading,

repairing or building a vessel).

Statement of the Case.

Section 3(a), 86 Stat. 1251, 1265, 33 USC 5903 (a)

Compensation shall be payable under this chapter

in respect of disability or death of an employee, but

only if the disability or death results from an in-

jury occurring upon the navigable waters of the

United States (including any adjoining pier, wharf,

dry dock, terminal, building way, marine railway,

or other adjoining area customarily used by an em-

ployer in loading, unloading, repairing, or building

a vessel).

STATEMENT OF THE CASE

Dravo Corporation is a diversified world-wide en-

terprise which includes many corporate subsidiaries en-

gaged in a variety of operations, products and services.

Through its Engineering Works Division, Dravo de-

signs and manufactures barges eud large towboats and

towboat equipment. The Engineering Works Division

of Dravo also engineers and manufactures various steel

mill equipment and power plant equipment, including

pelletizing machines used to solidify iron ore for the

steel industry. Liberty Mutual Insurance Company is

the compensation insurer for Dravo.

The Engineering Works Division of Dravo is located

on Neville Island, a large inhabited island with a num-

ber of industrial tracts, situated on the Ohio River, in

Allegheny County, Pennsylvania. The entire facility is

split north and south by Grand Avenue, a public

thoroughfare. On the north side of Grand Avenue

are the marine ways, boat yards, barge shop and other

facilities bordering the navigable main channel of the

Ohio River. On the south side of Grand Avenue are the

Statement of the Case.

structural shop and other facilities in the Engineering

Works Division and the separate facilities of the Dravo

Sand and Gravel Division which extend to the partially

navigable back channel of the Ohio.

Respondent Louis Maxin was employed by Dravo

Corporation on October 29, 1973 when he sustained an

injury resulting in below-knee amputations of both

legs while working for the Engineering Works Division

of Dravo at its plant on Neville Island. At the time of

this accident, respondent Maxin was employed as a

burner second class in the structural shop. The struc-

tural shop is an enclosed facility located approximately

2,009 feet from the navigable main channel of the Ohio

River. In the structural shop, Dravo fabricates equip-

ment for non-marine industries and materials and com-

ponents for marine vessels. Employees in the structural

shop work on non-marine equipment possibly fifteen

(15) percent of the time and on items to be pro-

cessed and manufactured into marine equipment eighty-

five (85) percent of the time. The fabrication of the

marine steel, including pre-forming, processing and

shearing, is done in the structural shop, and the steel,

in pieces or in components, is then transported to the

north side of Grand Avenue where it is then built into

pre-assemblies and complete essels.

Respondent Maxin’s work assignments ranged from

burning scrap in the scrap box to running a com-

puterized burning machine. On occasion, he did floor

burning with a hand torch. Respondent Maxin was not

called upon to work in the boat yard, barge shop, marine

ways or other areas to the north of Grand Avenue

where he might have worked on navigable waters or

Statement of the Case.

areas adjoining navigable waters. At the time of the ac-

cident, respondent Maxin was assigned to do regular

floor burning in the structural shop with a small ma-

chine. When injured, respondent Maxin was burning off

corners of pieces of steel which ultimately would serve

as the bottom plates and deck plates of completed

barges.

Contending that Maxin’s injury was compensable

only under Pennsylvania law, petitioners contested

Maxin’s federal compensation claim, which was referred

to Administrative Law Judge John I. Nevin for hearing,

pursvant to 33 USC 919(d) and 20 C.F.R. 702.331, et

seq. Petitioners appealed Judge Nevin's decision and

Order sustaining Maxin’s claim (Appendix D) to the

Benefits Review Board, pursuant to 33 USC 921(b) and

appealed the Board’s decision affirming Judge Nevin

(Appendix C) to the United States Court of Appeals

for the Third Circuit, pursuant to 33 USC 921(c). The

Court of Appeals affirmed the Benefits Review Board.

Reasons for Granting the Writ.

REASONS FOR GRANTING THE WRIT

Two cases now before the Court for review (North-

east Marine Terminal, Inc., et al. v. Ralph Caputo, et al.,

76-444, and International Terminal Operating Company,

Inc., v. Carmelo Blundo, et al., 76-454; reported sub.

nom. Pittston Stevedoring Corp. v. Dellaventura, 544

F.2d 35, 2d Cir., 1976) seek resolution of conflicts

among the courts of appeals respecting coverage of

longshoremen under the 1972 amendments. The decision

of the Court in these cases, however, will not neces-

sarily resolve questions of coverage of harbor workers

and particularly the class of harbor workers who are

shipbuilders.

Though the initial cases under the 1972 amend-

ments predominantly have involved longshoring, the

courts of appeals have tended to apply the same ra-

tionale to cargo handling and marine manufacturing

situations. (See, for example, the subsequent discus-

sion of the Third Circuit’s adoption in the case below

of its rationale in the disposition of a longshoremen’s

case, Sea-Land Services, Inc. v. Director, Office of Wkrs.’

Comp., Etc., 540 F.2d 629 (3d Cir., 1976). Compare also

the Fifth Circuit’s consolidation and disposition in one

decision of two longshoremen’s cases and three shipyard

workers’ cases, Halter Marine Fabricators, Inc. v. Nulty

reported sub. nom. Jacksonville Shipyards, Inc. v. Per-

due, 539 F.2d 533 (5th Cir., 1976), petition for certiorari

filed December 27, 1976, No. 76-880.) The problems of

interpretation that have arisen in the longshoremen

cases will thus affect the harbor worker cases as they

arise. The Solicitor General in his Memorandum for the

Federal Respondent in Caputo (p.5) observes: “The

Courts of Appeals are in serious conflict concerning the

Reasons for Granting the Writ.

extent of shoreside coverage under the 1972 amend-

ments to the Act.“ The Solicitor General adds (p.6):

“This conflict among the Circuits is undesirable.” Judge

Campbell of the First Circuit has called the present

divergence of views in the interpretation of the 1972

amendments a “judicial melange.” Stockman v. John T.

Clark and Son of Boston, Inc., 539 F.2d 264, 268 (Ist

Cir., 1976). Judge Gibbons of the Third Circuit has

described the attempt to interpret the 1972 amend-

ments as a task of no little difficulty as several diverg-

ing opinions demonstrate.” Sea-Land Services, Inc. v Di-

rector, supra, 540 F.2d at p.634. Judge Campbell in Stock-

man quotes this comment of Judge Friendly, writing

for the Second Circuit in Blundo, supra: Given the im-

portance of the question, the number of courts of ap-

peals endeavoring to find an answer, and the divergence

of opinion already manifested, it seems unlikely that

the opinion of any court of appeals will be the last

word to be said.“ Pittston Stevedoring Corp. v. Della-

ventura, 544 F. 2d at p. 39. These comments of the

courts of appeals and the Solicitor General point up the

widespread problem and virtually invite the Court to

resolve what Judge Campbell calls the essential am-

biguity of the 1972 amendments insofar as they de-

scribe, or fail to describe, the employees for whom cov-

erage is afforded.” Stockman v. John T. Clark and

Son of Boston, supra, 539 F.2d at p.265. Judge Campbell

notes that the House and Senate Committee Reports

“go only part way towards clarifying the application of

the 1972 Amendments in the present situation.” Stock-

man v. John T. Clark and Son of Boston, 539 F.2d at

Reasons for Granting the Writ.

p.274. The enormous consumption of judicial time that

is involved is apparent.!

Difficult questions arise from the ambiguities of

the 1972 amendments (e.g, the occupation of shipbuilder

is not historically maritime employment and the place

where “building a vessel“ begins has no point of re-

ference in the amendments). The terms maritime em-

ployment and shipbuilder adopted by Congress in the

1972 amendments posit the constitutional issue raised

in the court below. In order to resolve problems created

by the earlier Act, has Congress enacted legislation

which creates federal compensation benefits co-ex-

tensive with the limits of maritime jurisdiction? Or,

has Congress intended and accomplished sometuing

less? Has Congress exceeded the limits of its maritime

jurisdiction? Or, if Congress has stayed within those

limits, have the Benefits Review Board and the Court of

Appeals in the case below exceeded maritime jurisdic-

tion by holding federal compensation benefits to be ap-

plicable in the situation of employment presented in the

instant case? The Petitioners have urged this latter

position in the court below. On close study, it seems

that the ambiguity of the amendments and the difficult

questions of interpretation which have troubled the

courts arise principally from che ambiguity of maritime

jurisdiction itself.

1. The cases cited here and elsewhere in the Peti-

tion by no means comprehend all those presently in liti-

gation. Others include: Parker v. South Louisiana Con-

tractors, Inc. (Sth Cir.) petition for certiorari filed No-

vember 8, 1976; P. C. Pfetffer Co. Inc. v. Ford (5th Cir.),

petition for certiorari filed November 8, 1976; and

Maritime Terminals, Inc. v. Brown (4th Cir.), petition

for certiorari filed November 19, 1976.

Reasons for Granting the Writ.

If Congress has exceeded its maritime jurisdiction,

may its commerce powers be ‘nvoked to sustain the

1972 amendments? To this, the Department of Labor

has argued, yes, in its Brief to the Third Circuit in the

case below. (Brief for Respondent Director, Depart-

ment of Labor at pp. 26-27.) The Third Circuit, in an

opinion by Judge Gibbons in the case of Sea-Land

Service, Inc. v. Director, supra, relied upon as authority

for its decision in the case below, has held that the

1972 amendments are an exercive of maritime jurisdic-

tion only, noting that invocation of the commerce pow-

ers would confer a right to trial by jury in all federal

compensation claims, a result not intended by Congress.

Sea-Land Service, Inc. v. Director, supra, 540 F.2d at

p. 635.

Is the term maritime employment, which is unde-

fined in the 1972 amendments, intended by Congress to

be co-extensive with its maritime jurisdiction? If so,

the courts of appeals are without guidelines to define

the limits of maritime employment. A complete exami-

nation of the reach of admiralty and maritime jurisdic-

tion in the context of late-twentieth century practices

and conditions is needed to resolve the uncertainties

created by the use of the undefined term, maritime em-

ployment. The Court has not provided a definitive state-

ment in any earlier case that is helpful in the interpre-

tation of problems raised by the 1972 amendments.?

2. Petitioners are mindful of the evolving scope of

admiralty and maritime jurisdiction which has come

about through statutes enacted by Congress in the

past and through decisions of the Court affirming their

constitutionality. See the brief history of the enlarge-

ment of admiralty and maritime jurisdiction in the

opinion of the court below, pp. ga-11a, footnote 4. As the

Reasons for Granting the Writ.

Indeed, the Court has left the limits of maritime juris-

diction frustratingly enigmatic, as demonstrated par-

ticularly by this statement in Nacirema Operating Co.

v. Johnson, 396 US 212, 223-224 (1969) :

“There is much to be said for uniform treatment

of longshoremen injured while loading or unload-

ing 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 construing the Longshoremen’s Act

to coincide with the limits of admiralty jurisdic-

tion—whatever they may be and however they may

change—simply replaces one line with another

whose uncertain contours can only perpetuate on

the landward side of the Jensen line, the same con-

fusion that previously existed on the seaward side.”

The Constitutional issue is not present in the long-

shoremen cases before the Court. Loading, unloading

and repairing a vessel are unquestionably maritime em-

ployment. They are the traditional work of seamen

shifted by the specialization of modern times to the

longshoreman and the harbor worker. The shipbuilder

stands in a different category historically. The tradi-

tional view that new ship construction and a contract

to build a ship are not maritime has not been overruled.

court below notes, however: “There are, of course,

limits—‘the concept of the admiralty and maritime

jurisdiction,’ or ‘a proper conception of maritime con-

cerns.’ ’” (Opinion of the court p. 11a, footnote 4.) It is

precisely the fact that there are “limits” and that they

are undefined for purposes of the 1972 amendments that

establishes the need for a new, definitive statement of

maritime jurisdiction by the Court.

Reasons for Granting the Writ.

Under the earlier Act, with limited exceptions, the ship-

builder was covered only when injured upon navigable

waters where the situs of the injury established the

unquestioned jurisdiction of Congress. The earlier Act

did not need the term maritime employment to define its

scope. Maritime employment was never an issue.

The uncertainties of the Constitutional limits of

admiralty and maritime jurisdiction call for clarifica-

tion by the Court at this time. A definitive interpreta-

tion of maritime employment is needed, consonant with

a modern interpretation of maritime jurisdiction. Until

then, the difficulties of interpretation and the diver-

gence of opinion in the courts below will continue in

application of both the status and situs tests seemingly

imposed by Congress in the 1972 amendments. The

case below presents an excellent case for review

since Maxin worked far back from the areas defined by

Congress (e.g., marine way, dry dock, etc.) and in

fabrication work indistinguishable from that performed

in land industries, except that the material fabricated

was intended for new ship construction.

Reasons for Granting the Writ.

STATUS OF EMPLOYMENT AND

SITUS OF INJURY

There is conflict among the courts of appeals, the

Benefits Review Board and a leading authority whether

Congress intended to condition coverage to a combina-

tion of the situs of injury and the status of employ-

ment. If so, the employee would be excluded if he failed

to satisfy both tests. Within the application of each

test there is further conflict. Though the cases to be

discussed, with one exception, deal with longshoremen,

this should be of no significance, since Congress pre-

sumably intended uniform application of the amend-

ments to longshoremen and harbor workers.

A leading commentary urges that the 1972 amend-

ments “be read to cover all employment- related in-

juries which occur within the Act’s territorial limits“,

Gilmore and Black, The Law of Admiralty, 56.51 at

page 430 (1975), cited in Pittston Stevedoring Corp. v.

Dellaventura, supra, 544 F.2d at p. 56. The effect of this

view would seem to be to eliminate the status of the

worker’s employment, either generally or specifically at

the time of injury, as a requirement of eligibility.

Speaking for the majority in Pittston Stevedoring

Corp. v. Dellaventura, supra, Judge Friendly part [s]

company” with the commentators (544 F2d at p. 56)

and holds that two longshoremen who met the situs re-

quirements were covered under the specific facts of their

employment (status). Judge Friendly decided that the

amendments at least covered any person engaged in

handling cargo up to the point where the consignor has

begun its movement from the pier, provided the em-

ployee had spent a significant part of his time in “the

typical longshoring activity of taking carge on and off

Reasons for Granting the Writ.

a vessel.” Noting that some would conclude that this

“construction reads the status requirement out of the

Act”, Judge Friendly concedes the decision “goes some

way in that direction.” If the employee was not direttly

involved with taking cargo on or off a vessel when he

was injured, Judge Friendly apparently would require

that he show that a significant part of his activity con-

sisted of such work. Judge Lumbard, concurring and

dissenting, felt the Court should apply the point of

rest rule as more in keeping with the realities of mari-

time employment and easier to apply.

Judge Campbell of the First Circuit seems to adopt

a similar approach to Judge Friendly, in his opinion in

Stockman v. John T. Clark & Son of Boston, supra. In

Judge Campbell's view, if an employee is a longshore-

man in the sense of being involved in some stage of the

movements of cargo on and off shipboard, the fact that

the work is so organized by his employer that his in-

dividual duties do not happen to take him on shipboard

is not controlling. Judge Friendly seems to require the

employee to establish his eligibility on the basis of his

own individual activity, or status, whereas Judge Camp-

bell would allow him eligibility if he is part of an em-

ployee group, some of whom would be engaged in ship-

board activity:

“We read the language of the Committee reports

as requiring bona fide membership in a class of

employees whose members would for the most part

have been covered some of the time under the

earlier Act—not necessarily a demonstation by

each claimant that he individually would have been

covered.

“This is not to say that workers who are not plain

ly longshoremen, or otherwise plainly included in

Reasons for Granting the Writ.

some recognized category of maritime employment,

may not have to demonstrate their entitlement to

coverage by showing that their duties encompass

shipboard activity.” Stockman v. John T. Clark c

Son of Boston, supra, 539 F.2d at p. 277.

The Ninth Circuit in Weyerhaeuser Company v.

Gilmore, 528 F.2d 957, (1975) seems to go further than

Judge Campbell and adopt the position of Judge Friend-

ly. The Ninth Circuit emphasizes the importance of

what the employee individually does in determining his

status:

“. . . Accordingly we believe that to be entitled to

the benefits of LHCA, an employee’s employment

must have a realistic relationship to the traditional

work and duties of a ship’s service employment.

Otherwise the clear and unambiguous congressional

language of ‘maritime employment’ is nullified and

rendered to read ‘any employment.’

“We hold that for an injured employee to be

eligible for federal compensation under LHCA, his

own work and employment, as distinguished from

his employer’s diversified operations, including

maritime, must have a realistically significant re-

lationship to ‘trav:onal maritime activity involv-

ing navigation and commerce on navigable waters,’

with the furcher condition that the injury produc-

ing the disability occurred on navigable waters or

adjoining areas as defined in §903.” (528 F.2d at

p. 961.)

Both the First Circuit and the Second Circuit seem

to suggest that an employee who would not have been

covered under the earlier Act for any part of his work,

Reasons for Granting the Writ.

because his duties never took him on shipboard, gains

coverage under the 1972 amendments by reason of being

a member of a class of employees (e.g., longshoremen)

some of whom have duties which take them aboard ship.

Thus, Judge Friendly includes any longshoreman who

strips or stuffs a container since such work directly

relates to the removal and placement of cargo aboard

ship. The effect of this view would seem to be to broaden

the class of employees eligible, particularly as the em-

ployee gains eligibility, in Judge Campbell’s view, not

only by the specifics of the work he performs but also

by the shipboard activity of other employees whose

work is closely related. This view conflicts with the in-

terpretation of the Fourth Circuit that the amendments

broaden the area of coverage (situs) but narrow the

class of persons covered (status). In I. T. O. Corp. of Bal-

timore v. Ben. Rev. Bd., 529 F.2d 1080, (1975) — (re-

hearing en banc reported in 542 F.2d 9033) Judge

Winter, for the majority, addresses himself to this

point:

“Sections 2 and 3 of the present Act establish

a dual test for coverage. The situs requirement has

been retained, with the definition of ‘navigable

waters’ expanded to include certain specified land

areas. In addition, a new ‘status’ test has been

added: the person injured (‘employee’) must have

been engaged in ‘maritime employment,’ a concept

which is nowhere defined but which includes ‘long-

shoring operations.’ The net effect of the 1972

3. Upon re-hearing by the Court of Appeals en

banc, the — of the Benefits Review Board to one

claimant was reversed. By an equally divided court, the

awards to two claimants were affirmed. (542 F.2d at p.

905.)

Reasons for Granting the Writ.

Amendments was therefore to broaden the area in

which an injury would be covered, and narrow the

class of persons eligible according to job function.”

{Emphasis in original.] (529 F.2d at p. 1083.)

In I. T. O. Corp. of Baltimore v. Ben. Rev. Bd.,

supra, Judge Winter wrote for the majority that,

“with respect to longshoremen or other persons en-

gaged in longshoring operations, the Amendments ex-

tend only to those employees engaged in loading and

unloading activities between the ship and the first

(last) point of rest, including checkers ‘directly in-

volved in [such] loading or unloading functions.“ 529

F.2d at p. 1088. Judge Craven dissented, rejecting the

point of rest rule which was also rejected by Judge

Campbell in Stockman, supra, and rejected by Judge

Friendly in Dellaventura, supra, but approved by Judge

Lumbard in his dissent in Dellaventura.

In the case below, the Third Circuit held that

Maxin's employment functions for Dravo at Neville

Island were an integral part of the new ship construc-

tion activities conducted there” and that, therefore, “the

claimant satisfied the ‘functional relationship’ test of

Johns.” The reference to “Johns” is to the opinion of

Judge Gibbons for the Third Circuit reported sub nom

Sea-Land Services, Inc. v. Director, supra. Judge Gib-

bons has commented in Sea-Land that Judge Craven’s

perception of the Congressional intention (in his dis-

sent in J. T. O. Corp. of Baltimore v. Ben. Rev. Bd.,

supra) and that of the Third Circuit panel of Judges

Aldisert, Gibbons and Garth in Sea-Land are “essentially

the same.” This view perceives longshoring under the

statute as a continuous process involving different em-

ployees which continues at all times while the cargo is

Reasons for Granting the Writ.

“in maritime commerce as distinguished from land com-

merce.” (Sea-Land Services Inc. v. Director, supra, 540

F.2d at p. 639.)

The conflict in the courts of appeals on the point of

rest doctrine has important bearing to the issues pre-

sented for review in the case below. Petitioners have

urged in the court below the adoption of a high water

mark, so to speak, for what should be considered ship-

building, analagous to the point of rest doctrine in long-

shoring. Petitioners have urged that maritime employ-

ment and the term shipbuilder should be limited to

activity extending shoreward only as far as the place

where the keel or the bottom of the vessel is laid down

and the vessel begins the progressive steps of assembly

which culminate in its launching.” ( Petitioners’ Brief in

the court below at page 39.)

The decision of the court of appeals in the case

below cannot be understood without reference to the

rationale of Judge Gibbons in his opinion in Sea-Land

Services, Inc. v. Director, supra. Sea-Land not only at-

taches paramount importance to the status test (mari-

time employment), but goes far toward raising status as

the sole criterion of eligibility to the exclusion of any

consideration of the situs of the injury. (The longshore

employee, Johns, sustained his injury on a public high-

way. The Third Circuit remanded this case to the Bene-

fits Review Board for further evidence “bearing upon

the specific function of Johns at the time of injury.“)

Judge Gibbons concludes:

“ . . As long as the employment nexus (status)

with maritime activity is maintained, the federal

compensation remedy should be available. Resusci-

tating the situs requirement in cases satisfying the

Reasons for Granting the Writ.

status test will interfere with Congress’ intention

to eliminate the phenomenon of shifting coverage.

It is the situs of the vessels in maritime commerce,

not the situs of their maritime employees at the

time of the injury, that in our view Congress re-

ferred to by its reference to navigable waters.“

Judge Gibbons concedes “that the draftsmanship of the

1972 amendments leaves something to be desired, and

to a certain extent, obscures this purpose from view.”’

Sea-Land Service, Inc. v. Director, supra, 540 F.2d at

p. 638.

Petitioners have contended below that a structural

shop 2,000 feet from navigable waters cannot be an

adjoining area within the meaning of §903(a). The

court below rejected this contention, stating that the

contention had been answered in Sea-Land where plain-

tiff was injured when his flatbed truck overturned on a

public street in Port Elizabeth, New Jersey. (Sea-Land

was decided after the appeal was filed in the case

below.) Despite the marine character of the specific

areas enumerated by Congress in §902(4) and 903 (a),

the Third Circuit in Sea-Land did “not construe this

enumeration of covered areas to be an exclusive enu-

meration” and held that Congress intended to provide a

federal workmen’s compensation remedy for all mari-

time employees.” (540 F.2d at p. 638.) It is clear that

the Third Circuit’s interpretation will result in virtual

elimination of the situs test and the foundation of a

line of future cases which will be in conflict with de-

cisions in the other circuits, in this respect at least.

Though the Benefits Review Board and the Court of Ap-

peals reach the same result in the case below and in

Reasons for Granting the Writ.

Sea-Land, it appears that the Third Circuit favors giv-

ing even more liberal scope to the 1972 amendments

than the Benefits Review Board would do. The Bene-

fits Review Board preserves the situs test.

Lastly, one case decided in the Fifth Circuit seems

closest on its facts and on its decision to the case below.

The case is Halter Marine Fabricators, Inc., v. Nulty,

reported sub. nom. Jacksonville Shipyards, Inc. v. Per-

due, supra, petition for certiorari filed December 27,

1976, No. 76-880. There are a number of similarities be-

tween Nulty and the claimant in the case below. Nulty

was a carpenter who was making a part in a carpentry

shop which a ship fitter would install on a new vessel

which was not yet completed but launched and in navi-

gable waters. If the Court chooses to review Nulty the

decision could control the case below, but it is not neces-

sarily certain that it would. There are factual dif-

ferences as well. Nulty’s employer is engaged only in

new ship construction; Dravo’s structural shop makes

a diversity of products for land and marine uses. Nulty

did nothing but marine work. In the case below,

claimant Maxin and other employees in Dravo’s struc-

tural shop engaged in making land and marine products.

The distance of Dravo’s fabrication shop from the

water’s edge is substantially greater (2,000 feet) than

the distance of Halter Marine’s carpentry shop from

the water (300 feet).

Whether or not the Court chooses to review Nulty,

it is respectfully submitted that the Court should grant

certiorari in the case below. The claimant in the case

below is an employee working well outside the shore-

side areas enumerated by Congress as covered, and he

performed fabrication work common to marine and land

Reasons for Granting the Writ.

industries according to his work assignment. The de-

cision of the court in the case below would be disposi-

tive of a large number of cases involving employees

other than longshoremen which may be expected to

arise. Other cases are presently pending, according to

information received by the petitioners, in the Fourth

Circuit. If the Court elects to review Nulty, it is re-

spectfully submitted that Nulty and the case below

should be consolidated with the two longshoremen cases

(Caputo and Blundo) from the Second Circuit which

the Court has agreed to review.

Conclusion.

CONCLUSION

For the reasons set forth above, it is respectfully

submitted that this petition for certiorari should be

granted and arguments in this case and in numbers 76-

444 and 76-454 should be set consecutively or consoli-

dated.

Respectfully submitted,

FREDERICK N. EGLER

ROBERT S. GARRETT

EGLER & REINSTADTLER

2100 Lawyers Building

428 Forbes Avenue

Pittsburgh, Pennsylvania 15219

Attorneys for Petitioners

Certificate of Service.

CERTIFICATE OF SERVICE

I, Frederick N. Egler, one of the attorneys for

petitioners in the above-titled proceeding, being a mem-

ber of the Supreme Court of the United States, do here-

by certify that coincident with the filing of this Peti-

tion, I have served copies of the Petition for Writ of

Certiorari, together with the appendix attached thereto,

by mailing copies thereof in duly addressed envelopes

postage pre-paid to, Daniel W. Cooper, Esquire, Gatz,

Cohen, Segal & Koerner, Attorneys for Respondent

Maxin, and William J. Kilberg, Solicitor of Labor,

Laurie M. Streeter, Associate Solicitor and Joshua T.

Gillelan, II, Esquire, Attorney, United States Depart-

ment of Labor, Suite N-2716, New DOL Building, Wash-

ington, D.C. 20210 and to the Solicitor General, De-

partment of Justice, Washington, D.C. 20530.

FREDERICK N. EGLER

EGLER & REINSTADTLER

2100 Lawyers Building

428 Forbes Avenue

Pittsburgh, Pennsylvania 15219

(412) 281-9810

Attorneys for Petitioners

INDEX TO APPENDIX

PAGE

Appendix A

Opinion of the United States Court of Appeals

for the Third Circuit, (Dravo Corporation and

Liberty Mutual Insurance Company v. Louis

Main and United States Department of Labor,

Benefits Review Board, Respondents, The Direc-

tor, — of Workers’ Compensation Programs,

US. artment of Labor, Party Respondent,

No. 75-2403, decided November 15, 1976) la

Appendix B

Judgment of the United States Court of Appeals

for the Third Circuit (Dravo Corporation and

Liberty Mutual Insurance Company v. Louis

Main and United States Department of Labor,

Benefits Review Board, Respondents, The Direc-

tor, O — of Workers’ Compensation Programs,

U. S. Department of Labor, Party Respondent,

No. 75-2403, decided November 15, 1976) 20a

Appendix C

Opinion of the Benefits Review Board (Louis

axin v. Dravo Corporation and Liberty Mutual

Insurance, Employer/Carrier Petitioners, Di-

rector, Office of Workers’ Compensation Pro-

grams, United States Department of Labor,

Party in Interest, BRB No. 75-145 Decision,

Filed as part of the record October 20, 1975) 21a

Appendix D

3 —5 of the Administrative Law Judge

( is Maxin v. Dravo Corporation, Employer,

and Liberty Mutual Insurance Company, Car-

rier, Case No. 74-LHCA-298 Formerly No.

3-6171, Order dated February 28, 1975) 26a

Appendix A.

APPENDIX “A”

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 75-2403

DRAVO CORPORATION and LIBERTY MUTUAL

INSURANCE COMPANY,

Petitioners

LOUIS MXN and UNITED STATES DEPARTMENT

OF LABOR, BENEFITS REVIEW BOARD,

Respondents

THE DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS, U. S. DEPARTMENT

OF LABOR,

Party Respondent

(BRB NO. 75-145)

ON PETITION FOR REVIEW OF A DECISION

OF THE BENEFITS REVIEW BOARD

Argued September 10, 1976

Before: VAN DUSEN, HUNTER and WEIS, Circuit Judges.

Opinion of the Court.

FREDERICK N. EGLER,

ROBERT S. GARRETT,

Egler & Reinstadtler,

Pittsburgh, Pa.

Attorneys for Petitioners

DANIEL W. COOPER,

Gatz, Cohen, Segal & Koerner,

Pittsburgh, Pa.

Attorney for Respondent Maxin

WILLIAM J. KILBERG,

Solicitor of Labor

LAURIE M. STREETER,

Associate Solicitor

JOSHUA T. GILLEILAN, II,

Attorney, U. S. Department of Labor

Washington, D.C.

Attorneys for Party Respondent,

Director, Office of Workers’ Com-

pensation Programs, U. S. Depart-

ment of Labor

Opinion of the Court

(Filed November 15, 1976)

VAN DUSEN, Circuit Judge.

This is a petition by an employer to review an

October 20, 1975, decision (100a-104a) of the Benefits

Review Board (BRB), United States Department of

Labor, affirming the decision of the administrative law

judge that the claimant, Louis Maxin, was covered by

the Longshoremen’s and Harbor Workers’ Compensa-

Opinion of the Court.

tion Act (LHWCA), as amended in 1972.1 Although

Judge Gibbons stated in his recent opinion in Sea-Land

Service, Inc., et al. v. Director, etc., and Wallace C. Johns,

2 F. 2d Opinion of Aug. 5, 1976 (3d Cir. No.

75-2039) (hereinafter Johns), which involved a claimant

allegedly engaged in longshoring operations, that the

above 1972 Amendments manifest an unmistakeable

congressional intention to afford federal coverage for

injuries occurring in areas inland of the navigable

waters of the United States,“ 2 id. at 8, this case is the

first time that we have considered whether Congress

1. Act of October 27, 1972, Pub. L. No. 92-576, 86

Stat. 1251 (codified in scattered sections oi 33 U.S.C.

§$901-49) (Supp. IV, 1974).

2. At page 12 of the Johns opinion, Judge Gibbons

concluded:

„ . . it should be within Congress’ legislative juris-

diction under Article III, Section 2 to provide a

remedy for persons injured in the course of mari-

time employment, irrespective of the place of injury.

It is the existence of the special employer-employee

relationship, and not the situs of that relationship,

that is significant for purposes of admiralty juris-

diction.”

At page 16, Judge Gibbons stated:

“Congress . intended to expand the scope of the

LHWCA te provide » federal workmen’s compensa-

tion remedy for all maritime employees. We believe

that Congress has exercised in full its legislative

jurisdiction in a As long as the employ-

ment nexus (status) with maritime activity is main-

tained, the federal compensation remedy should be

available. Resuscitating the situs requirement in

cases satisfying the status test will interfere with

Congress’ intention to eliminate the phenomenon

of shifting coverage.”

See page 6 and note 3 below.

Opinion of the Court.

could constitutionally extend the coverage of the

LHWCA to laad based workers in the shipbuilding in-

dustry. We affirm the October 20, 1975, decision of the

BRB.

There is little dispute concerning the essential facts.

The claimant, Louis Maxin, is an employee of Dravo

Corporation (hereinafter “Dravo”) who, on October 29,

1973, sustained an injury resulting in below-knee ampu-

tations of both legs while working for Dravo’s Engineer-

ing Works Division (EWD) at its plant on Neville

Island near Pittsburgh, Pennsylvania. At the time of

his injury, Maxin was working in the Neville Island

structural steel shop, his usual place of employment,

burning steel plates which would ultimately become

bottoms and decks of barges fabricated by Dravo at the

Neville Island facility.

Neville Island is located in the the Ohio River, a

navigable waterwa;,. The plant is closest to the southern

shore of the river and generally extends towards the

north. The main stream of the river is on the north side

of the facility. On the south side is a lesser stream

called the back channel. The entire facility is split north

and south by Grand Avenue, a public thoroughfare. On

the north side of Grand Avenue are the marine ways,

boat yards, barge shop and other facilities of the EWD.

On the south side of Grand Avenue are the structural

shop and other facilities of the EWD (as well as the

separate facilities of the Sand and Gravel Division),

extending to the back channel which is navigable for

most of its length. Historically, certain areas of the

plant have always been considered by the parties to be

subject to the jurisdiction of the LHWCA. This area

includes the marine ways and the launching ways im-

Opinion of the Court.

mediately adjacent to the water’s edge on the north

side. EWD designs and builds large tow boats, barges,

steelmill equipment, and power plant equipment.

In addition to the structural shop, eight major areas

of the Neville Island facility can be identified as con-

nected with boat building or repair. The enclosed

structural shop is about 2000 feet from the north channel

of the river. In the structural shop, pre-assembly com-

ponents of all types, including those of barges, tow~

boats, damlocks, engine foundations, etc., are carried

out. Some of the components such as “rake ends” range

from 40 to 60 feet in width and 20 feet in length. Com-

ponents fabricated in the structural shop are trans-

ported on rail cars to other areas for assembly. The

major raw material used in the construction of vessels

is steel. The majority of the steel is delivered to a

storage area adjacent to the structural shop by truck

or rail car. It is then brought into the structural shop

as needed, where it is shaped, cut, punched and welded

to the desired configuration.

In addition to marine construction, pelletizing

machines and “feeders,” which are used in handling iron

ore and in making steel, are also built in the structural

shop. No other areas in the facility beside the structural

shop are used for other than marine fabrication. During

the previous 12-month period, about eight pelletizing

units were built. In that same period, about 300 barges

and towboats were constructed. The employees in the

structural shop may spend 15% of their time on non-

marine work and 85% on marine work. 90% of the raw

steel delivered to the shop finds its way into the marine

products. The employees are assigned as needed; they

do not specialize in either marine or non-marine work.

Opinion of the Court.

Grand Avenue generally separates the structural shop

from the pre-assembly and final assembly areas. To the

extent that employees in the structural shop may be

assigned to non-shipbuilding activities, the assignments

are incidental and sporadic as the needs of the moment

dictate. There is no delineation of labor between ship-

building and non-shipbuilding functions (for example,

the manufacture of pelletizing machines and feeders“)

On this appeal, Dravo raises a number of conten-

tions challenging the award made to the claimant, as

follows:

I. The Congress could not constitutionally ex-

tend coverage under the LHWCA landward to em-

ployees working in new ship construction.

II. Maxin, as a burner employed in metal fabri-

cation at a preliminary stage of boat building, was

not a shipbuilder or maritime employee within the

meaning of the 1972 Amendments.

III. The injury did not take place at a situs

within the landward extension of the 1972 Amend-

ments.

—

Opinion of the Court.

I. THE CONSTITUTIONALITY OF EXTENSION OF COVERAGE

UNDER THE LHWCA TO THE SHIPBUILDING INDUSTRY

A. The Landward Extension

The 1972 Amendments extended the coverage of the

earlier Longshoremen’s and Harbor Workers’ Compensa-

tion Act of 1927 (hereinafter “1927 Act”) landward to

employees “engaged in maritime employment” who were

already covered by the 1927 Act while working upon

navigable waters. Sea-Land v. Johns, supra at 13-14.

Prior to the enactment of the 1972 Amendments, the

Supreme Court had clearly indicated in a number of

opinions that the coverage of the 1927 Act, ending at the

water’s edge, was not coterminous with the full geo-

graphical extent of the limits of maritime jurisdiction.

See, e.g., Nacirema Operating Co. v. Johnson, 396 U. S.

222, 223-24 (1969). This history has already been ex-

tensively reviewed in a recent opinion of this Circuit,

see Johns, supra at 12, deciding that, in a case such as

this, Congress’ landward extension of the LHWCA’s

coverage was authorized by the United States Constitu-

tion (see footnotes 2 above and 4 below).

Opinion of the Court.

B. The Subject Matter Extension

The revised definition of “employee” in 33 U. S. C.

§ 902(3), as amended (§ 2(4) of P. L. 92-576, which

contains the 1972 Amendments) ,* provides:

“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 by the

master to load or unload or repair any small vessel

under eighteen tons net.” (Emphasis supplied.)

We note that although new ship construction con-

tracts and the vessel itself until launched have been held

traditionally not to be a subject of maritime jurisdiction,

North Pacific 8. S. Co. v. Hall Brothers Marine Ry. &

Shipping Co., 249 U. S. 119 (1919) ; The General Smith,

17 U. S. (4 Wheat.) 438 (1819), shipbuilding employees

were covered under the LHWCA prior to the 1972

Amendments if they were injured while working on new

vessels under construction and afloat upon navigable

waters. E. g., Calbeck v. Travelers Insurance Co., 370

U. S. 114 (1962). This case, therefore, is not one that

involves extension of the LHWCA to a class of employees

who were entirely outside of the Act’s coverage prior to

1972. As stated in Johns, supra at 13-14:

“(T]he dominant purpose of the 1972 Amendment

in extending the Act’s coverage to areas previously

3. Changes made by the 1972 Amendments to the

earlier Act which are pertinent to this opinion have

recently been extensively reviewed by this Circuit. See

Johns, supra at 4-8.

Opinion of the Court.

left to the states was to make more uniform the

death and disability compensation system for mari-

time employees so that maritime workers would no

longer walk into federal coverage and out of state

coverage, and vice versa, in the course of a day’s

work. (Emphasis supplied. )

The reasoning of Judge Gibbons in Johns and the

result in Calbeck support our conclusion that a landward

extension of the LHWCA to shipbuilding employees

such as Maxin was a constitutional exercise of Congress’

Article III power.

Our conclusion is reinforced by the consideration

that when, on a number of other occasions, the Congress

altered the substantive rules of maritime law or enlarged

the classes of cases falling within the admiralty and

maritime jurisdiction itself, the Supreme Court of the

United States has sustained the congressional deter-

mination.* In Detroit Trust Co. v. The Thomas Barlum,

4. In The Genesee Chief, 53 U. S. (13 How.) 443

(1852), the Court sustained an 1845 act of Congress

which extended the federal admiralty jurisdiction to

inland waterways, thereby overruling The Thomas

Jefferson, 23 U. S. (10 Wheat.) 428 (1825), which had

held that the jurisdiction was limited by the English

determinant, “within the ebb and flow of the tide.” Since

then Congress has on a number of other occasions not

only altered the substantive rules of maritime law, but

enlarged the classes of cases which fall within the

jurisdiction itself.

For instance, originally, the position that admiralty

jurisdiction over torts depended on the place where the

wrong was consumma was regarded as too funda-

mental for argument. The Plymouth, 70 U. S. (3 Wall.)

20 (1866). When Congress, however, extended the juris-

diction to damage to shore structures caused by ves-

sels for the limited purpose of limitation of liability

proceedings, Act of June 26, 1884, c. 121, § 18, 23 Stat.

10a

Opinion of the Court.

293 U. S. 21 (1934), the Supreme Court discussed Con-

gress’ authority to confer admiralty and maritime

jurisdiction on the federal courts in classes of cases

which had previously been held by the Court to be out-

side the jurisdiction:

“The Congress [rests] its authority upon the con-

stitutional provisions extending the judicial power

‘to all cases of admiralty and maritime jurisdiction’

and conferring upon the Congress the power to

make all laws which shall be ‘necessary and proper’

for carrying into execution all powers ‘vested by

this Constitution in the government of the United

States, or in any department or officer thereof.’

Art. III, S 2; Art. I, S 8, par. 18. This authority was

not confined to the cases of admiralty and maritime

jurisdiction in England when the Constitution was

57, 46 U. S. C. § 189, the Supreme Court refused to con-

strue the statutory provision narrowly in order to limit

it to the previously recognized scope of the jurisdiction.

Richardson v. Harmon, 222 U. S. 96 (1911). Finally, in

1948, Congress extended the jurisdiction to all injuries

on land caused by vessels, for all purposes. Admiralty

Extension Act, 62 Stat. 496 (1948), 46 U. S. C. § 740.

This general extension of the jurisdiction to torts pre-

viously considered in American law to be non-maritime

was upheld as well. United States v. Matson Navigation

Co., 201 F. 2d 610 (9th Cir. 1953), cited with apparent

approval in Victory Carriers, Inc. v. Law, 404 U. S. 202,

209 n. 9 (1971).

Congress in 1910 brought within the cognizance of

admiralty jurisdiction, by allowing a lien in rem, con-

tracts for repairs or supplies furnished a vessel in her

home port, Act of June 23, 1910, c. 373, 36 Stat. 604, as

amended, 46 U. S. C. §§ 971-75 (the Federal Maritime

Lien Act), one of the classes of contracts whose exclu-

sion from the jurisdiction had been relied upon in

People’s Ferry Co. v. Beers, 61 U. S. (20 How.) 393

lla

Opinion of the Court.

adopted. Waring v. Clarke, 5 How. 441, 457, 458.

The limitations which had been imposed upon the

high court of admiralty in the course of its con-

troversy with the courts of common law were not

read into the grant. But the grant presupposed a

‘general system of maritime law’ which was fami-

liar to the lawyers and statesmen of the country,

and contemplated a body of law with uniform oper-

ation. The Lottawanna, 21 Wall. 558, 574, 575. The

Constitution did not undertake to define the precise

limits of that body of law or to lay down a criterion

for drawing the boundary between maritime law

and local law. Jd. Boundaries were to be determined

in the exercise of the judicial power in recognition

(1857); and its power to do so was sustained. E. g.,

Pied mont & George's Creek Coal Co. v. Seaboard Fish-

eries Co., 254 U. S. 1 (1920); United States v. Carver,

260 U. S. 482 (1923). Further, in 1920, Congress ex-

tended the jurisdiction to ship mortgages generally, Act

of June 5, 1920, c. 250 § 30, 41 Stat. 988, 1000, as

amended, 46 U. S. C. § 911 et seq., notwithstanding that

they had previously been declared non-maritime con-

tracts by the Supreme Court, Bogart v. The John Jay,

58 U. S. (17 How.) 399 (1854); and the extension was

sustained in Detroit Trust Co. v. The Thomas Barlum,

293 U. S. 21 (1934). There are, of course, limits—‘the

concept of the admiralty and maritime jurisdiction,” or

“a proper conception of maritime concerns.” But the

previous restrictive decisions so strongly influenced by

the narrow restraints placed on the Admiralty in Eng-

land provide little guidance as to the scope of the con-

cept. Rather, the broader view of what is “maritime” in

the “general maritime law“ provides the basis of

analysis of what may properly be so designated within

the constitutional grant. See also, e. g., United States v.

Webb, Inc., 397 U. S. 179, 191 (1968) ; Panama Railroad

Co. v. Johnson, 264 U. S. 375, 386 (1924); The Lotta-

wanna, 88 U.S. (21 Wall.) 559, 576 (1875).

Opinion of the Court.

of the purpose of the grant. ‘No state law can en-

large it, nor can an act of Congress or rule of court

make it broader than the judicial power may deter-

mine to be its true limits.’ The St. Lawrence, 1 Black

522, 527. The framers of the Constitution did not

contemplate that the maritime law should remain

unalterable. The purpose was to place the entire

subject, including its substantive as well as its

procedural features, under national control. From

the beginning the grant was regarded as implicitly

investing legislative power for that purpose in the

United States. When the Constitution was adopted,

the existing maritime law became the law of the

United States ‘subject to power in Congress to

modify or supplement it as experience or changing

conditions might require.’ Panama Railroad Co. v.

Johnson, 264 U. S. 375, 385-387. The Congress thus

has paramount power to dete:mine the maritime

law which shall prevail throughout the country.

The Lottawanna, supra, p. 577, Butler v. Boston &

Savannah S. S. Co., 130 U. S. 527, 557; In re Garnett,

141 U. S. 1, 13; Southern Pacific Co. uv. Jensen, 244

U. S. 205, 215; Crowell v. Benson, 285 U. S. 22, 39;

United States v. Flores, 289 U. S. 137, 148, 149, But

in amending and revising the maritime law, the

Congress necessarily acts within a sphere restricted

by the concept of the admiralty and maritime juris-

diction...

“The fact [that earlier court decisions had held

the subject matter to be without the maritime juris-

diction] was not conclusive as to the constitutional

authority of the Congress to alter or supplement

the maritime law in this respect, and thus to extend

—— — — ̃ —

13a

Opinion of the Court.

the admiralty jurisdiction, ‘as experience or chang-

ing conditions might require,’ while keeping within

a proper conception of maritime concerns...

“The authority of the Congress to enact legis-

lation of this nature was not limited by previous

decisions as to the extent of the admiralty jurisdic-

tion. We have had abundant reason to realize that

our experience and new conditions give rise to new

conceptions of maritime concerns. These may re-

quire that former criteria of jurisdiction be aban-

doned...”

Id. at 42-44, 48, 52 (footnotes omitted). We conclude

the standard of The Thomas Barlum has been met in

33 U. S. C. § 902(3).5

5. Our conclusion in this case finds further sup-

port from an analysis of the legislative history of the

1972 Amendments. The extended coverage afforded by

the 1972 Amendments was the result of compromise

between competing interests which substantially raised

the workmen’s compensation benefits payable under the

Act and as a trade-off to the employers, overruled the

Sieracki-Ryan liability. See Johns, supra at 13; Griffith

v. Wheeling Pittsburgh Steel Corporation, 521 F. 2d 31,

38-40 (3d Cir. 1975); see also Comment, Negligence

Standards Under the 1972 Amendments to the Harbor

Workers’ and Longshoremen’s Compensation Act: Ex-

amining the Viewpoints, 21 Vill. L. Rev. 244, note 17,

246 (1976 . Shipbuilders and shipbuilding employees,

as well as longshoremen and stevedores, were parties to

the compromise. See, e. g., Hearings on S. 2318, S. 525,

S. 1547. Before the Subcomm. on Labor of the Senate

Comm. on Labor and Public Welfare, 92d Cong., 2d Sess.

(1972), at 174-77 & 820-21.

14a

Opinion of the Court.

II. THE CLAIMANT’S STATUS

On this appeal, Dravo argues that shipbuilding is

“sufficiently distinct from fabrication to provide an ap-

propriate limit” for the Act’s coverage only at “the

place where the keel or bottom of the vessel is laid down

and the work of shipbuilding can properly be said to

commence.” Dravo’s brief at 28-32. We reject this ap-

proach for two reasons: first, this court has already

examined and rejected an analogous view held by the

Fourth Circuit in regard to longshoring operations, see

Johns, supra at 17-18; second, implementation by us of

Dravo’s suggested distinction would, in effect, partially

overrule Johns, supra, where the analysis focused prin-

cipally on the relationship between the employer and

the claimant. In addition, Dravo’s test would resurrect

the pre-1972 problem of excessive litigation caused in

part by pre-1972 judicial doctrines® which the Congress

attempted to discard by extending the coverage of the

LHWCA landward. Moreover, the test proposed would

arbitrarily foreclose otherwise meritorious claims sim-

ply because of the definition placed by the employer upon

the employment relationship. This disposition would be

unfortunate insofar as it would tend to confine the ju-

dicial inquiry into a mere search for labels and talis-

manic rubrics. We note that other courts have rejected

similar labeling approaches. See, e. g., Jacksonville Ship-

yards, Inc. v. Perdue, Opinion of September 27, 1976 (5th

Cir., Nos. 75-1659, 75-2833, 75-2289, 75-2317, 75-4112).

In Johns, supra at 12, this Circuit held that the test

of coverage under the landward extension of the 1972

Amendments was to be a “status” test related to the

6. See G. Gilmore & C. Black, The Law of Ad-

miralty, §§ 6-48, 6-49 (2d ed. 1975).

——— em —— — — — — . —k

—— 2 —ü

15a

Opinion of the Court.

employee's function in the employer's operation and de-

pendent upon the existence of [a] special employer-

employee relationship and not the situs of that relation-

ship.” Having concluded that Congress could extend the

coverage of the LHWCA to land-based shipbuilders, we

must now determine if the BRB properly concluded that

the claimant’s employment relationship with Dravo fell

within the parameters of the term “shipbuilder.’’*

Unfortunately, the term “shipbuilder” was not de-

fined by the Congress in the 1972 Amendments; there-

fore, we must resort to other sources to determine if the

7. On this appeal, the Director, Office of Workers’

Compensation Programs, United States Department of

Labor, has argued at some length that we should defer

to the BRB’s determination of the employees and areas

within the extended coverage of the LHWCA. See

Director’s brief at 29-34. Among other suggestions made

by the Director is his contention that 33 U. S. C. § 920 (a)

creates a “statutory presumption ‘that the claim comes

within the provisions of this Act.“ Brief at 31. Because

the record makes clear that the claimant was a § 2(4),

33 U. S. C. § 902 (3), as amended, “employee,” we have

no need to decide these contentions at this time, except

to note that several other circuit court panels have

reached these issues with mixed results. See, e. g., Stock-

man v. John T. Clark & Son of Boston, Inc., Opinion of

July 27, 1976 (Ist Cir., No. 75-1360) at 9-12; Pittston

Stevedoring Corp. v. Dellaventura, Opinion of July 1,

1976 (2d Cir. Nos. 76-4042, 76-4009, 76-4043, 75-4249),

at 4699-4710; but see Perdue, supra at 6000-01 of slip

— In cases based on claims arising before the

ective date of P. L. 92-576, the presumption created

by 33 U. S. C. § 920 (a) was held to limit judicial review

of determinations that injuries arose out of the employ-

ment. See, e. g., Continental Insurance Co. v. Burn, 471

F. 2d 257 (7th Cir. 1972); cf. Overseas African Construc-

tion Corp. v. McMullen, 500 F. 2d 1291 (2d Cir. 1974) ;

Motteler v. J. A. Jones Construction Co., 457 F. 2d 917

(7th Cir. 1972).

16a

Opinion of the Court.

functional relationship of Maxin’s activities to Dravo’s

shipbuilding operations was maritime in character. The

Encyclopaedia Britannica offers a general outline of

shipbuilding and ship repair activities. In 20 Encyclo-

paedia Britannica 410-13 (1967), under the heading,

“Steps In Constructing A Ship,” the following language

appars:

“Fabrication and Assembly.—The plate and

angle shop shears, acetylene torch equipment, plan-

ers, bending rolls, presses, furnaces, drill and coun-

ter-sink machines and other equipment prepare the

finished steel plates and shapes ready for subassem-

bly or for erection in the ship. After fabrication,

the plates and shapes, if riveted, are usually moved

directly to the ship by cranes; shipwrights then

adjust them in final positions and secure them by a

few bolts passed through the rivet holes.”

Comparison of the Britannica’s outline with Dravo’s

structural shop operations at Neville Island compels

the conclusion that functionally both are substantially

identical. On the facts of this case, it is clear that

Maxin’s employment functions for Dravo at Neville

Island were an integral part of the new ship construc-

tion activities conducted there. We conclude, therefore,

that the claimant satisfied the “functional relationship”

test of Johns and that this record shows that there is a

reasonable legal basis for the BRB’s conclusion.®

8. We find reinforcement for this conclusion in the

recent Perdue opinion of the Fifth Circuit, where that

court affirmed a BRB determination of LHWCA coverage

of claimant Nulty in circumstances substantially similar

to those in this case. See Perdue, supra at 6003 of slip

opinion.

17a

Opinion of the Court.

III. THE SITUS OF THE INJURY

Dravo contends that the structural shop was not

an area within the extended coverage of 33 U. S. C. §

903 (a), as amended (§ 3(a) of P. L. 92-576), which pro-

vides:

“Compensation shall be payable under this

chapter in respect of disability or death of an em-

ployee, 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)

With regard to this issue, Dravo again advances the

argument that the coverage of the 1972 Amendments

“should extend no further than the place where the

keel or bottom of the vessel is laid down and the vessel

begins the progressive steps of assembly which cul-

minate in its launching.” Brief at 39. In addition, Dravo

suggests that because the structural steel shop was a

distance of 2000 feet from the north channel and sepa-

rated from most of the Neville Island facilities by Grand

Avenue,® it cannot be an “adjoining area” within the

meaning that Congress intended the courts to impart

by the wording of § 903(a), as amended. The answer

to these contentions was recently provided in John’s

supra at 16, where, in discussing the extent of the ex-

9. We note that the situs of the injury in Johns

was a public street. Although the panel in that case

remanded for further fact findings, it was clear that the

panel felt the “situs” might be a proper one under 33

U. S. C. § 905 ‘a), as amended.

18a

Opinion of the Court.

panded coverage of the 1972 Amendments, Judge Gib-

bons said:

“The reference inn 903 (a) to the navigable

waters of the United States should be regarded as

no more than a shorthand way of relating the func-

tion being performed by the injured employee to

waterborne transportation, the jurisdictional nexus.

We recognize that both of these statutory provi-

sions, as amended in 1972, further state that the

‘navigable waters’ shall include ‘any adjoining pier,

wharf, dry dock, terminal, building van, marine

railway, or other adjoining area customarily used

by an employer in loading, unloading; repairing, or

building a vessel.’ But we do not construe this enu-

meration of covered areas to be an exclusive enu-

meration. 10

(Emphasis supplied.)

Our analysis in part II above and the wording quoted

above from Johns, supra, provides an adequate answer

to Dravo’s contentions. To the extent that situs has rele-

vancy under Johns, we conclude that Dravo’s Neville

Island structural steel frabrication shop is covered by

the Act. The Neville Island facility adjoins navigable

waters. The great majority of the work performed in

the shop is related to shipbuilding or ship repair. There

is no delineation of the work into shipbuilding and non-

ship building functions. Thus, the structural steel shop

and the work performed there is an integral part of

Dravo’s shipbuilding operations at the complex. Because

we feel the Congress was familiar with the assembly-

10. The next four sentences of the Johns opinion

are quoted above at note 2.

———ů—ů— ˖ 2 — ——n —

Opinion of the Court.

line methods employed in American manufacturing, we

hold that the congressional intent underlying the exten-

sion of the LHWCA is best effectuated by extending

coverage to the labor force in. such a building once the

“functional relationship” test of Johns has been met.

The petition for review will be denied and the order

of the Benefits Review Board will be affirmed.

TO THE CLERK: -

Please file the foregoing opinion.

Circuit Judge

Judgment.

APPENDIX “B”

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 75-2403

DRAVO CORPORATION and LIBERTY MUTUAL

INSURANCE COMPANY,

Petitioners

LOUIS MAXIN and UNITED STATES DEPARTMENT

OF LABOR, BENEFITS REVIEW BOARD,

Respondents

THE DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS, U. S.

DEPARTMENT OF LABOR,

Party Respondent

(BRB NO. 75-145)

ON PETITION FOR REVIEW OF A DECISION

OF THE BENEFITS REVIEW BOARD

Present: VAN DUSEN, HUNTER and WEIS, Circuit Judges.

Judgment

This cause came on to be heard on the record from

the Benefits Review Board, United States Department

of Labor, and was argued by counsel.

On consideration whereof, it is now here ordered

and adjudged by this Court that the petition for review

be, and the same is hereby denied and the order of the

said Benefits Review Board, filed October 20, 1975, is

affirmed. Costs taxed against the petitioners.

ATTEST:

THOMAS F. QUINN

November 15, 1976 CLERK

— 22 et ee es

A eee

Appendiæ C.

APPENDIX “C”

U.S. DEPARTMENT OF LABOR

BENEFITS REVIEW BOARD

WASHINGTON, b. c. 20210

Filed as part of the record, October 20, 1975

CAROLYN D. McCreEapy, Clerk

LOUIS MAXIN )

Claimant-Respondent

DRAVO CORPORATION

and

LIBERTY MUTUAL INSURANCE BRB NO.

COMPANY > 75-145

Employer/Carrier DECISION

Petitioners

DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR

Appeal from Decision and Order of John I. Nevin,

Administrative Law Judge, United States Department

of Labor.

Daniel W. Cooper, Pittsburgh, Pa., for claimant.

Frederick N. Egler (Egler, McGregor & Reinstadtler),

Pittsburgh, Pa., for employer/carrier.

Joshua T. Gillelan, II (William J. Kilberg, Solicitor of

Labor, Laurie M. Streeter, Associate Solicitor), Wash-

ington, D.C., for Director, Office of Workers’ Compensa-

tion Programs, United States Department of Labor.

Before: Washington, Chairperson, Hartman and Miller,

Members.

22a

Appendix C.

Washington, Chairperson:

This is an appeal by the employer and insurance

carrier (hereinafter, the employer) from a Decision and

Order (74-LHCA-298) of Administrative Law Judge

John I. Nevin. The petitioners allege that the Decision

and Order is contrary to law. The claim was filed pur-

suant to the Longshoremen’s and Harbor Workers’

Compensation Act, as amended, 33 U.S.C. 8901 et seq.

(hereinafter referred to as the Act).

Claimant, a second class burner, was injured in the

course of his employment in the structural shop when a

stack of steel plates fell and amputated both of his legs

below the knees. The employer is continuing to pay

temporary total disability benefits under the Pennsyl-

vania state act and is providing rehabilitation therapy;

the degree of permanent disability will be determined

when claimant reaches maximum recovery.

The issues before the administrative law judge were

whether the injury was within the jurisdiction of the

Act and whether the landward extension of jurisdiction

pursuant to the 1972 amendments is constitutional.

The administrative law judge held that this claim-

ant was covered by the Act as amended as he was injured

while assisting in the process of manufacturing barge

components in an area adjoining navigable waters. The

constitutional issue was preserved for appeal to the

proper tribunal.

The petitioners take issue with the administrative

law judge’s conclusion of coverage. They question the

determination that the claimant was engaged in mari-

time employment and they challenge the determination

23a

Appendiz C.

that the situs of the injury was in an adjoining area as

defined by the Act. 33 U.S.C. §903(a).

Section 2(3) of the Act defines “employee” to be

“any person engaged in maritime employment, includ-

ing a longshoreman or other person engaged in long-

shoring operations, and any harbor-worker including

a ship repairman, shipbuilder. . . .” (emphasis added).

33 U.S.C. §902(3). The employer’s principal business is

constructing barges and towboats—shipbuilding. On the

day he was injured the claimant was shaping steel deck

or bottom plates to be incorporated into a barge. Cer-

tainly this work is in furtherance of the employer’s

business of new ship construction and must be deemed

maritime employment as impliedly defined by Section

2(3) of the Act.

Jurisdiction of ‘he Act is incomplete however unless

the injury occurred in an “adjoining area customarily

used by an employer in loading, unloading, repairing or

building a vessel”. (emphasis added). 33 U.S.C. $903(a).

In this regard the administrative law judge concluded

as follows:

The Respondents’ facility is a large integrated ship-

yard specializing in the building of barges, towboats

and other marine equipment for use afloat. While

other manufacturing activities are conducted there

for the convenience of management, they are a

minor part of the total activities, and they do not

change the nature of the operation as a maritime

facility, adjoining navigable waters.

The record evidence clearly supports the administrative

law judge’s description and characterization of the

facility; it is located on an island and is geared to the

production of some 300 barges and towboats annually.

Appendix C.

The claimant was injured in the structural shop

where components of all types of marine products are

preassembled. The employer places particular emphasis

on the fact that a thoroughfare (Grand Avenue) passes

between the structural shop and the major body of

navigable water. The implication is that this thorough-

fare effectively precludes the structural shop from being

a part of the “adjoining area. The merit of this

argument is illusory. The administrative law judge

described the employer’s operation as a large integrated

shipyard specializing in the building of Larges... .” This

is indeed the function of the facility. An adjoining area

as defined in the Act must be deemed bounded only by

the limits of its use as a maritime enterprise. This entire

facility is designed and used for new ship construction.

The mere fact that the island is bisected by a public road

is of no consequence. The jurisdictional requirements

of Section 2(3) and 3(a) of the Act are satisfied.

The final argument pressed by the petitioners’ ap-

peal is that if jurisdiction is found to lie then the amend-

ment extending jurisdiction to adjoining areas is un-

constitutional. As the Board has fully discussed this

issue in Coppolino v. I. T. O. Co., Inc., 1 BRBS 205 (Dec.

2, 1974), there is no reason to reiterate that discussion

here.

Accordingly, the administrative law judge’s Deci-

sion and Order on the merits is affirmed.

We Concur:

RUTH V. WASHINGTON, Chairperson

RALPH M. HARTMAN, Member

JULIUS MILLER, Member

Dated this 20th day of October, 1975.

—— —

—— «K —

— —ä—— ee ee)

—ͤ—ä—ũ—6 ⁊ͥ ᷑eT——— — ee ee er ane -

Appendiz C.

SERVICE SHEET

BRB No. 75-145: LOUIS MAXIN v. DRAVO CORPO-

RATION and LIBERTY MUTUAL

INSURANCE CO. (74-LHCA-298)

Copies have been sent to the following parties:

Daniel W. Cooper, Esquire —certified—

1708 Law & Finance Building

Pittsburgh, Pa. 15219

Frederick N. Egler, Esquire —certified—

Egler, McGregor & Reinstadtler

21st Floor, Lawyers Bidg.

428 Forbes Avenue

Pittsburgh, Pa. 15219

Miss Laurie M. Streeter

Associate Solicitor

U. S. Dept. of Labor

Washington, D. C. 20210

Mr. Herbert Doyle

Director, Office of Workers’

Compensation Programs, ESA

U.S. Dept. of Labor

Washington, D. C. 20210

Mr. Donald Frederick

Deputy Commissioner, OWCP, ESA

U. S. Department of Labor

3535 Market Street

Philadelphia, Pa. 19104

Mr. John I. Nevin

Administrative Law Judge

U. S. Dept. of Labor

Rm 720 Vanguard

Washington, D. C. 20036

Appendix D

APPENDIX “D”

U.S. DEPARTMENT OF LABOR

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20210

In the Matter of ;

LOUIS MAXIN

Claimant Case No.

v. 74 LHCA-298

DRAVO CORPORATION Formerly

Employer No. 3-6171

LIBERTY MUTUAL INSURANCE COMPANY

Carrier :

Daniel W. Cooper, Esq.

1708 Law and Finance Building

Pittsburgh, Pa. 15219

For the Claimant

Frederick N. Egler, Esq.

Egler, McGregor & Reinstadtler

21st Floor Lawyers Building

428 Forbes Avenue

Pittsburgh, Pa. 15219

For the Employer

and Carrier

Joshua T. Gillilan, Attorney

(William J. Kilberg, Solicitor of Labor)

Marshal H. Harris, Associate Solicitor

U.S. Department of Labor

Washington, D.C. 20210

For the Director,

Office of Workers’ Compensation Programs

Before: JOHN I. NEVIN

Administrative Law Judge

—ä—ä— — ed

Decision and Order.

Decision and Order

Statement of the Case

Pursuant to the provisions of the Longshoremen

and Harbor Workers’ Comrensation Act (33 USC Sec-

tion 901 et. seq.), herein zfter referred to as the Act“

and the rules and regulations issued by the Secretary

of Labor under authority therein contained (20 C.F.R.

702.331), a hearing in the above-captioned matter con-

vened on October 30, 1974, in the city of Pittsburgh,

Pennsylvania and continued thereafter until completed.

All parties were presented by counsel and were af-

forded opportunity to adduce evidence, examine and

cross-examine witnesses, and to file briefs. Based upon

the entire record and from observation, and evaluation

of the demeanor of the witnesses I make the Findings

of Fact, Conclusions of Law, and Order as set forth

herein.

The findings of fact pertaining to the organization

and operation of the Respondents industrial facility are

common to four cases (Mazin 74-LHCA-298, Kyne 74

LHCA-299, Gibbeaut 74-LHCA-300, and Green 74

LHCA-301), of which this is one. These are based on

exhibits and testimony of particular witnesses and are,

by stipulation, applicable to all four cases.

Statement of the Issues

The primary issue between the parties is whether

the claim herein comes within the jurisdiction of the

Act as amended.

Secondarily, the Respondent argues that if the

Amendments make the Act applicable to the facts be-

fore us, they are unconstitutional when so applied.

Decision and Order.

Findings of Fact

Dravo Corporation is a diversified conglomerate

operating on a world-wide scale through subsidiaries.

The facility on Neville Island is the Engineering Works

Division. The functions carried out there are the design

and building of large tow boats, and barges, steelmill

equipment, and power plant equipment. Dravo operates

the entire facility as one unit.

The facility in which the accidents occurred is

located on a body of land called Neville Island located

in the Ohio River a short distance down stream from

Pittsburgh. The plant is closest to the southern shore

of the river and generally is projected toward the north.

The main stream of the river is on the north side of the

facility. On the south side is a lesser stream called the

back channel. It was stipulated that the main stream

was a navigable waterway.

Historically, certain areas of the plant have always

been considered by the parties to be subject to the

jurisdiction of the Act. This area includes the Marine

ways and the launching ways immediately adjacent to

the waters edge on the north side. It is delineated by a

heavy red line on a chart of the plant (Cl. Ex. 1).

Other significant areas of the facility include the

boat yard area in which the construction of various

types of vessels such as oil barges, coal barges, tow-

boats, and floating cranes is underway (Cl. Ex. 1, item

1).

The Barge shop is another area in which construc-

tion of vessels is undertaken. The difference between

it and the boat yard area is that in the former, the work

is done undercover whereas in the latter, it is performed

— — — — 2

29a

Decision and Order.

in the open air. The Barge shop also conducts “preas-

sembly” operations which is the fabrication of major

components such as bow sections. These are later

brought to the building ways and assembled to the bot-

tom of the barges (Cl. Ex. 1, item 2). The Barge shop

extension is about 250 feet from the north bank of the

river (Res. Ex. 2).

A third area in which vessel construction takes

place is the marine ways (Cl. Ex. 1, item 3). In addi-

tion, to new construction, repair of existing barges is

also performed here. There are facilities for pulling the

vessels out of the water in this area.

Repair work is also performed on barges which re-

main afloat in the area known as the “dock wall” (Cl.

Ex. 1, item 4).

The launching of newly constructed vessels is under-

taken from an area known as the launching ways which

are on the north bank of the river to the west of the

“dock wall” area (Cl. Ex. 1).

Still another segment of the plant is the area loc-

ated on the south side of Grand Avenue. A major unit

located there is the structural shop in which pre-assem-

bly of components of all types including those of barges,

towboats, damlocks, engine foundations, etc., is carried

gut (Cl. Ex. 1, item 5, Res. Ex. 2, Item 5). Some of the

components such as “rake ends” range from 40 to 60 feet

in width and 20 feet in length. Components fabricated

in the structural shop are transported to other areas

for assembly on rail cars (Cl. Ex. 1, Item 6).

The major raw material used in the construction of

vessels is steel. The majority of the steel is delivered

to a storage area adjacent to the structural shop by

30a

Decision and Order.

truck or rail car (Cl. Ex. 1, Item 7). It is then brought

into the structural shop as needed where it is shaped,

cut, punched and welded to the desired configuration.

The structural shop is about 2000 feet from the

North Channel of the river. Between the structural shop

and the rivers edge is a “crane” track which runs paral-

lel to the river, Respondent states it breaks the con-

tinuity of movement to the water’s edge. Barges to be

launched must cross the track to get to the launching

site (Res. Ex. 2).

In addition, to marine construction, pelletizing

machines and “feeders” which are used in handling

iron ore and in making steel are also built in the struc-

tural shop. No other areas in the facility beside the

structural shop are used for other than marine fabrica-

tion. During the previous twelve month period about

eight pelletizing units were built. In that same period

about 300 barges, and towboats were constructed.

The employees in the structural shop may spend 15

percent of their time on non-marine work and 85 per-

cent on marine work. Ninety percent of the raw steel

delivered to the shop finds its way into the marine

products. The employees are assigned as needed; they

do not specialize in either marine or non-marine work.

Grand Avenue generally separates the structural shop

from the pre-assembly and final assembly area.

Another area on the south side of Grand Avenue is

the machine shop (Cl. Ex. 1, Item 8). This area is

partially used for pre-assembly construction. It is also

used for machining shafts, fitting parts, etc. Components

also move to assembly areas in the boat yard from the

machine shop by rail.

31a

Decision and Order.

On the north side of Grand Avenue, is an area where

most of the towboats are assembled and put together

(Cl. Ex. 1, Item 9). Installation of propulsion machinery

ete., takes place here. From this point the towboats move

to the launching area. In all, there are about 11 existing

“positions” where work is performed which culminates

in a finished vessel at the launching area.

Dravo employees perform fitting out services after

launching the vessels. Substantial numbers of employees

are engaged in all of the operations. The facility operates

on three full shifts. The work classification of the

employees such as ship fitters, welders, tackers, crane-

men and riggers is fairly uniform throughout the

facility. The facility operates generally in an assembly

line order.

The back channel which is on the south side of the

island is navigable most of its length. Barges have been

stored afloat in that area.

It is stipulated that on 29 October 1973, Louis

Maxin suffered an injury which resulted in the amputa-

tion of both legs below the knees.

Since 29 October 1973, and to the hearing date

Maxin has been temporarily and totally disabled. He is

undergoing rehabilitation therapy provided by Respond-

ents to determine the extent of any future disability.

The Respondents have paid, and are paying compen-

sation and medical benefits in accordance with Pennsyl-

vania Law. To the extent that the longshoremen’s Act

is found to be applicable, Respondents are entitled to a

credit against their liability under the Federal statute

for sums paid pursuant to the State statute.

32a

Decision and Order.

The benefits paid up to the date of the hearing were

compensation (indemnity) in the amount of $5,200; and

medical costs in the amount of $19,463.98.

Claimant’s average weekly wage was $189.20. The

benefits to which he would be entitled under the Federal

statute would be $126.13, plus medical care as provided

by the Act.

The employer-employee relationship existed

throughout this period and the injury suffered, arose

out of and in the course of such employment.

Claimant Maxin testified that he is married, and

was first empioyed by Dravo in September, 1972. He was

continuously employed in the structural shop, and pro-

gressed through various types of duties. [On 29 October,

1973, Claimant was a second class Burner. He was

cutting corners or leveling edges on pieces of steel such

as bottom plates, or deck plates which were eventually

incorporated into a barge. |

While so engaged at his pluce of duty on the floor

of the structural shop he was injured by a stack of steel

which was behind him, and which fell, striking him.

Conclusions of Law

The Respondents facility is a large integrated ship-

yard specializing in the building of barges, towboats

and other marine equipment for use afloat. While other

manufacturing activities are conducted there for the

convenience of management, they are a minor part of

the total activities, and they do not change the nature

of the operation as a marine facility, adjoining navigable

waters.

Ae Oe te — 4

33a

Decision and Order.

The production employees of Respondent are typical

shipbuilding employees. To the extent that they may be

assigned to non-shipbuilding, activities such as construc-

tion of pelletizing machines for a minor part of their

working time, the assignments are incidental and spo-

radic as the needs of the moment dictate. There is no

delineation of labor between shipbuilding and non-ship-

building functions. Neither is there any evidence before

us that this Claimant was not engaged in shipbuilding

activities when injured.

The general doctrine that in contract matters

admiralty jurisdiction depends on the nature of the

transaction, and in tort matters upon the locality, has

been so frequently asserted by the Supreme Court that

it must now be treated as settled (Grant Smith—Porter

Ship Co., v. Rhode, 257 U.S. 409 42 S. Ct. 157 (1922) and

cases cited therein).

As the Act relates solely to injuries occurring upon

the navigable waters of the U.S., it deals with maritime

law, and is applicable to matters that fall within the

admiralty and maritime jurisdiction. The general

authority of Congress to alter or revise the maritime

law, which shall prevail uniformly throughout the

country, is beyond dispute (Crowell v. Benson, 285 U.S.

22, 52 S. Ct. 285 (1932).

In amending and revising the maritime law the

Congress cannot reach beyond the constitutional limits

which are inherent in admiralty and maritime jurisdic-

tion (Crowell v. Benson, supra p. 294). Unless the in-

juries to which the act relates occur upon navigable

waters, they fall out side that jurisdiction. However,

navigability is itself a question of fact, and where

navigability itself is not in dispute, the locality of the

34a

Decision and Order.

injury, that is whether it occurred upon the navigable

waters, determines the existence of the congressional

power to create the liability (Crowell v. Benson, supra;

U. 8. Casualty Co. v. Taylor, 64 F.2d 521 (4th Cir.

1933) ).

Prior to 1962 it had been held that work upon a new

ship launched, but not yet placed in navigation as an

instrumentality of commerce was not maritime in the

accepted meaning of that term (U. S. Casualty Co. v.

Taylor, supra, citing Grant Smith Porter Co. v. Rohde,

supra.

In 1962 the Supreme Court held that the Act applied

to all injuries sustained by employees on navigable

waters, regardless of whether they were working on

completed vessels undergoing repair, or on a launched

vessel, which was still under construction, (Calbeck v.

Travellers Insurance Co. 370 U. S. 114, 82 S. Ct. 1196

(1962). In so doing the court cited with approval its

prior decision in Avondale Marine Ways, Inc. v. Hender-

son (346 U. S. 366 74 S. Ct. 100 (1953) in which it had

held that where an employee was killed while working

on the repair of a vessel pulled out of the water on a

“marine way,” the marine way was a dry dock for

purposes of the definition of navigable waters as in-

cluding any dry dock.

In an opinion reviewing the situation as it existed

in 1965, the Court of Appeals for the Ninth Circuit held

that the phrase “any dry dock,” as then used in the Act,

was never intended to include building ways provided

and used exclusively for new construction. Its conclu-

sion was held to be supported by the fact that new ship

construction was historically a non-maritime activity

for the reason that prior to launching, the hull is a mere

ee eee —- 2

—

—ͤ—— — RO Sect — bY ———

35a

Decision and Order.

piece of personal property whereas the moment the keel

touches the water it becomes a subject of admiralty

jurisdiction. Conversely, it was stated, ship repair had

long been considered a maritime activity. The reasoning

followed was that there was no difference in kind as to

hull repairs depending upon whether the vessel is in dry

dock afloat, or hauled upon ways on dry land, and ad-

miralty jurisdiction extends to all. The Court noted that

the character of a tort, as being maritime or non-mari-

time, had traditionally depended on the place of the in-

jury, and that an injury upon dry land occurring in the

performance of new ship construction was not maritime

in nature and not subject to the Act (O’leary v. Puget

Sound Bridge and Dry Dock Co., 349 F.2d 571 (9th Cir.

1965).

The Supreme Court has reiterated the traditional

view of maritime jurisdiction in two cases dealing with

Longshoremen rather than shipbuilding, in which it

held that injuries sustained on piers, which are exten-

sions of land, are not injuries sustained upon the navi-

gable waters and hence not within the coverage of the

Act (Nacirema Operating Co., v. Johnson, 396 U.S. 215,

90 S.Ct. 347 (1969) ) ; Victory Carriers, Inc. v. Law, 404

U.S. 202, 92 S.Ct. 418 (1971). In Victory, supra, the

Court observed that the threshold issue was whether

maritime law governs accidents suffered by a longshore-

man injured on the dock by his stevedore employers

equipment. It was held that, it did not. Maritime tort

jurisdiction, it said, is governed by the locality of the

accident and maritime law governs only those torts oc-

curring upon the navigable waters of the United States.

Thus, statutory language then in effect did not cover

the cases. However, the Court pertinently observed that

if denying federal remedies to longshoremen injured on

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Decision and Order.

land is intolerable, ‘ ongress has ‘ample power under

Articles I and II of ti.e Constitution to enact a suitable

solution (Victory Carriers, supra, 404 U.S. 202, 217;

Coppolino v. International Terminal Operating Co., et al.

BRB 74-136 (2 Dec. 1974). This, we feel is exactly what

Congress purported to do in the 1972 Amendments to

the Act (Act of 27 Oct. 1972, P.L. 92-576, 86 Stat. 1251).

Countering the Claimant’s assertion that the

Amendments to the Act provide coverage to them, the

Respondents argue that the 1972 amendments to the

Act do not provide coverage to employees engaged in

new ship construction on land; that this particular em-

ployee was injured a substantial distance from navigable

waters and, that if the Amendments were construed to

provide coverage under such circumstances, they would

be unconstitutional. The particular language of the Act

with which we are concerned, as amended and codified,

includes the definitions of employee“ which means any

person engaged in maritime employment, . including

a ship repairman, shipbuilder, and shipbreaker . (33

USC 902 (3)); the definition of employer,“ which means

an employer, any of whose employees are engaged in

maritime employment, in whole or in part, upon the

navigable waters of the United States including any

adjoining . . . building way, marine railway, or other

adjoining area customarily used by an employer in...

repairing, or building a vessel (33 USC 902(4)); the

definition of “vessel” which, as added, means any vessel

upon which, or in connection with which, any person

entitled to benefits. . suffers injury or death arising

out of, or in the course of his employment... (33 USC

902 (21) ).

— — dati cate

—

37a

Decision and Crder.

Our concern also includes the general statement of

coverage, which reads, in pertinent part: Compensa-

tion shall be payable under this chapter in respect of

disability or death of an employee, but only if the dis-

ability or death results from an injury occurring upon

the navigable waters of the United States ‘including

any adjoining ... dry dock, . building way, marine

railway, or other adjoining area customarily used by an

employer in... repairing or building a vessel (33 USC

903 (a))

As an aid to determining the intent of Congress in

employing particular statutory language it is not inap-

propriate to consult the legislative history of the

Amendments. The Senate Report accompanying S. 2318

stated, inter alia, that the principal purpose of the bill

was to amend the Act in order to . . extend coverage

to additional workers .. . (p. 63). Specifically, coverage

was expanded to cover injuries “occurring in the con-

tiguous dock area related to longshore and ship repair

work (p. 64).” In commenting upon the Act prior to the

Amendments the Report stated: “The present act, in-

sofar as longshoremen, shipbuilders 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 waters edge; injuries oc-

curring on land are covered by State Workmen’s Com-

pensation Laws. The result is a disparity in benefits pay-

able for death or disability for the same type of injury

depending on which side of the waters edge, and in

which state, the accident occurs (p. 74). The report fur-

ther stated: It is apparent that if the Federal benefit

structure embodied in the Committee bill is enacted,

there would be a substantial disparity in benefits pay-

able. .. depending on which side of the water’s edge the

38a

Decision and Order?

accident occurred, if state laws are permitted to con-

tinue to apply to injuries occurring on land (p. 75). The

report concluded that the compensation payable to a

longshoreman, ship repairman, or shipbuilder should

not depend on the fortuitous circumstance of whether

the injury occurred on land or over water... The in-

tent of the committee was to permit a uniform compen-

sation system to apply to employees who otherwise be

covered by this act for only part of their activity (p.

75). (S. Report No. 92-1125, 92nd Cong., 2d Sess., 1-13;

Legislative History of the Longshoremen and Harbor

Workers’ Compensation Act Amendments of 1972, pp.

63-75).

When reading the amended language in the light of

the legislative history, there appears to be little ques-

tion that shipbuilding on land was intended by Congress

to be covered by the Act. [This is so even though there

is no specific definition of maritime employment in the

Act, and even though shipbuilding on land may not, his-

torically, have been a maritime activity.] Having

reached this conclusion we feel that the factors of dis-

tance from the waters edge, and separation from it by a

public road, must be considered in the light of the phrase

“other adjoining area customarily used by an employer

in building a vessel.” As we earlier concluded, the Re-

spondents facility is a unified, integrated industrial plant

devoted to marine construction. It “adjoins” navigable

waters, i.e., the Ohio River, directly. The Claimant was

on this “adjoining” property in the course of his em-

ployment. The fact that he may have been 100 or 1000

feet from the waters edge is a difference of degree and

not of kind. Also, the fact that a public road intersected

the property, (but did not alter or destroy its practical

function), was incidental. The property contained pri-

39a

Decision and Order.

vate roads as well, and the Respondent used them all,

both public, and private in furtherance of its shipbuild-

ing activity. We therefore, find that in this case the

entire facility was “adjoining” navigable waters within

the meaning of the Act. (Adkins v. I. T. O. Corporation,

et al. BRB 74-123 (29 Nov. 1974).

Respondent also contends that the Act, as we have

construed it to cover shipbuilding on land“ when con-

ducted in an adjoining area, is not constitutional. As we

have already noted unassailable decisions have con-

cluded that Congress has the power to legislate in the

field of maritime jurisdiction and admiralty subject only

to the constitutional limits which are inherent in the

exercise of such jurisdiction. Whether the legislative en-

actment, broadening as it does the meaning of navi-

gable waters,” exceeds those bounds is the question

raised. It is not, however, for us to do more than note

that Respondent has not waived this point, but has

preserved it in this proceeding for such further con-

sideration as may be due in a forum of competent juris-

diction. An administrative tribunal such as this must

assume the validity of the legislation which it adminis-

ters. It has no jurisdiction to entertain questions con-

cerning the constitutionality of legislative enactments.

(Engineers Public Service Co. v. Securities and Ex-

change Commission, 138 F.2d 936 951-53, (1943); Sal-

zano v. American Stevedores, Inc. et al. 74-LHCA-266

(Nov. 18, 1974) ).

The parties have stipulated that Claimant Maxin is

entitled to compensation for temporary total disability,

and that he is currently receiving rehabilitation therapy

in order to determine the extent of future disability.

The statute provides that a person having lost both

40a

Decision and Order.

legs or feet shall, in the absence of conclusive proof to

the contrary, be considered to be permanently and total-

ly disabled (33 USC 908(a)). In cases of temporary

total disability, the compensation is the same, during

the continuance thereof, as for permanent total dis-

ability. This is so because the statutory limitation on

the total amount payable in cases of other than perma-

nent total disability and death is no longer in effect.

(See 33 USC 914(m) as repealed). In view of the stipu-

lation, the current rehabilitative therapy, and the Re-

spondent’s statutory right to offer conclusive proof that

Claimant is not permanently, and totally disabled, it

would be premature to conclude, as a matter of law,

that he is so disabled at this time. Accordingly, we find

that Claimant was temporarily and totally disabled

from the date of the accident, 29 October 1973, until

the present and continuing, and that he is entitled to

compensation on that basis.

The Respondents were liable for and provided

medical care from 29 October 1973. They shall continue

to furnish, medical, surgical, and other attendance as

provided in the Act for such period as the nature of in-

jury and the process of recovery may require (33 USC

907 (a))

Respondents are entitled to a credit against their

liability for compensation herein for the compensation

paid to Claimant pursuant to the Pennsylvania Compen-

sation Act. This sum, up to the date of the hearing, was

stated to be $5,200.

Interest on the net amount due to Claimant herein

is payable at the rate of 6 percent per annum from the

date each payment was due until paid (Struchan Ship-

4la

Decision and Order.

ping Co., v. Wedemeyer, 452 F.2d 1225 (5th Cir. 1971);

Ryan v. McKie Co. et al. BRB-74-160 (Dec. 10, 1974).

Approval of an attorney fee in the amount of

$131.25 was requested by Claimant. We find this sum

to be reasonable and that it should be paid directly by

Respondent to Claimant in a lump sum as soon as the

order becomes final (33 USC 928(a) as amended).

ORDER

Claimant Maxin shall be paid compensation for tem-

porary total disability at the rate of $126.13 per week

from the date of the injury 29 October 1973, to the

present and continuing thereafter, pursuant to the pro-

visions of the Act until otherwise ordered.

Respondents shall continue to furnish in future,

pursuant to the Act, all medical, surgical, and other

attendance for such period as the nature of the injury

and the process of recovery may require.

Respondents are entitled to a credit against their

liability herein for benefits paid to Claimant Maxin

pursuant to the Pennsylvania Compensation Act.

Interest on the net amounts due to Claimant Maxin

herein is payable at the rate of 6 percent per annum

from the date each payment was due until paid.

An attorney fee in the amount of $131.25 is ap-

proved and shall be paid by Respondents directly to

Claimant’s attorney as soon as this order becomes final.

JOHN I. NEVIN

Administrative Law Judge

Dated: February 28, 1975

Washington, D. C.

42a

Certificate of Filing and Service.

Certificate of Filing and Service

I certify that on March 11, 1975 the foregoing

Compensation Order was filed in the Office of the Deputy

Commissioner, Third Compensation District and a copy

thereof was mailed on said date by certified mail to the

parties and their representatives at the last known

address of each as follows:

Mr. Louis Maxin, Claimant c/o Daniel Cooper,

Esquire, 1708 Law & Finance Bldg., Pitts., Pa. 15219.

* iberty Mutual Insurance Company, Insurance Car-

rier ot Employer (if self-insured) 717 Liberty Avenue,

Pittsburgh, Pa. 15222.

FREDERICK N. EGLER,

EGLER, MCGREGOR & REINSTADTLER

2ist Floor—Lawyers Building

428 Forbes Avenue

Pittsburgh, Pa. 15219

For the employer and carrier.

DANIEL W. COOPER,

GATZ, COHEN, SEGAL & KOERNER

1708 Law & Finance Building

Pittsburgh, Pa. 15219

For the claimant.

43a

Jertificate of Filing and Service.

A copy was also mailed by regular mail to the following:

Judge John Nevin, Office of Administrative Law

Judges, U. S. Department of Labor, Washington,

D.C. 20210

Office of the Solicitor, U. S. Dept. of Labor, Division

of Employee Benefits, Rm. 4221, Main Labor Blidg.,

Wash., D.C. 20210

Director, Office of Workmen’s Compensation Pro-

grams (LS/HW) U.S. Department of Labor, Wash-

ington, D.C. 20211

DONALD FREDERICK

Deputy Commissioner

Third Compensation District

U. S. Department of Labor

EMPLOYMENT STANDARDS

ADMINISTRATION

Office of Workmen’s Compensa-

tion Programs

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