Petition — Director, Office Workers' Compensation Programs v. Jacksonville Shipyards, Inc.
Supreme Court brief1979
Ask Donna
What actually matters in this document.
Text
No.
whe Pee
Seen cmenieececnenanen
fy Supreme Court,
| FILE
@8-11 78) JAti 26 1979
D
, 2R., CLERK
In the Supreme Court of the United States
OCTOBER TERM, 1978
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT
OF LABOR, PETITIONER
Vv.
JACKSONVILLE SHIPYARDS, INC., ET AL.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
WADE H. MCCREE, JR.
Solicitor General
Department of Justice
Washington, D.C. 20530
CARIN ANN CLAUSS
Solicitor of Labor
LAURIE M. STREETER
Associate Solicitor
JOSHUA T. GILLELAN, II
GILBERT T. RENAUT
Attorneys
Department of Labor
Washington, D.C. 20210
Opinions below ............... eieiianeiincvonn
EE ELSE
EE
Neen ee in, ncenneunescece
ES Le
Reasons for granting the petition -...................
owen NN WN &
Ec 11
CITATIONS
Cases:
Brady-Hamilton Stevedore Co. v. Herron,
Teen ee a cessenenvenes 6
Director, Office of Workers’ Compensa-
tion Programs v. Jacksonville Ship-
yards, Inc., 433 U.S. 904 ...................--- 5
Dravo Corp. v. Maxin, 545 F.2d 374, cert.
I nn seeccesce 6
Halter Marine Fabricators, Inc. v. Nulty,
EES 5 5
Newport News Shipbuilding & Dry Dock
Co. v. Graham, 573 F.2d 167, cert. de-
nied, No. 77-1765 (Nov. 27, 1978) ........ 6
Northeast Marine Terminal Co. v. Caputo,
I es ccliiecictsiccnewnsnse 5, 6, 7, 8, 9, 10
P. C. Pfeiffer Co. v. Ford, 433 U.S. 904.. 5
Pittston Stevedoring Corp. v. Delaven-
tura, 544 F.2d 35, affirmed sub nom.
Northeast Marine Terminal Co. v.
Co cee Ga See ............................ 6
II
Cases—Continued | Page
Sea-Land Service, Inc. v. Director, Office
of Workers’ Compensation Programs,
eRe earns er oe 6, 9
Stockman v. John T. Clark & Son, Inc.,
589 F.2d 264, cert. denied, 4383 U.S.
EER See Tannen Oa SEEN Om ow OTe 6
Texports Stevedore Co. v. Winchester,
I SE UU shechaisisosssndinesiapunimlabesendione’ 7
Statute:
Longshoremen’s and Harbor Workers’
Compensation Act, 33 U.S.C. 901 et
seq.:
Section 2(3), 38 U.S.C. 902(3) ........ 4,5
Section 3(a), 38 U.S.C. 908(a) -....... 2, 4, 5,
6, 7, 10
Miscellaneous:
H.R. Rep. No. 92-1441, 92d Cong., 2d
Ss AMP OUNEE Sabicea ceeencatasdiingincapatepinnees 9
S. Rep. No. 92-1125, 92d Cong., 2d Sess.
2 RRR aN Siero ee A a 9
Iu the Supreme Court of the United States
OCTOBER TERM, 1978
No.
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT
OF LABOR, PETITIONER
=,
JACKSONVILLE SHIPYARDS, INC., ET AL.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
The Solicitor General, on behalf of the Director,
Office of Workers’ Compensation Programs, United
States Department of Labor, petitions for a writ of
certiorari to review the judgment of the United States
Court of Appeals for the Fifth Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals on remand from
this Court (App. A, infra, la-2a) is reported at 575
F.2d 79. The original opinion of the court of appeals
(App. B, infra, 3a-31a) is reported at 539 F.2d 533.
(1)
2
The opinion of the Benefits Review Board (App. C,
infra, 32a-36a) is reported at 1 B.R.B.S. 297. The
decision of the administrative law judge (App. D,
infra, 37a-60a) is not reported.
JURISDICTION
The judgment of the court of appeals (App. E,
infra, 61a-62a) was entered on June 16, 1978. A timely
petition for rehearing was denied on August 30, 1978
(App. F, infra, 63a). On November 21, 1978, Mr.
Justice Powell extended the time within which to file
a petition for a writ of certiorari to and including
January 27, 1979. The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).
QUESTION PRESENTED
Whether the maritime situs requirement of the
Longshoremen’s and Harbor Workers’ Compensation
Act is satisfied when a maritime employee is injured
in the course of employment within a large maritime
facility, but at a place not itself used for the per-
formance of maritime work.
STATUTE INVOLVED
Section 3(a) of the Longshoremen’s and Harbor
Workers’ Compensation Act, 33 U.S.C. 903(a), pro-
vides in part:
Compensation shall be payable under this Act
in respect of disability or death of an employee
but only if the disability or death results from
3
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 cus-
tomarily used by an employer in loading, unload-
ing, repairing, or building a vessel). * * *
STATEMENT
Respondent Herbert L. Perdue was employed as a
shipfitter by respondent Jacksonville Shipyards, Inc.
On February 2, 1973, he was working aboard the
aircraft carrier U.S.S. ROOSEVELT, which was
berthed at the Mayport Naval Station. Near the end
of his shift, he left the aircraft carrier and caught a
bus supplied by his employer to take him to the place
where he would check out for the day. As he was
alighting from the bus, Perdue fell and injured his
knee (App. D, infra, 38a).
Jacksonville Shipyards paid Perdue from the time
he checked in until the time he checked out. The com-
pany required him to check in and out at a small
building just inside the entrance to the Naval Station.
The building was approximately 500 yards from the
water and approximately one mile by bus from where
the ROOSEVELT was berthed. Perdue was acting in
the course of his employment when he sustained his
injury (App. D, infra, 38a, 48a).
Jacksonville Shipyards and its insurance carrier,
respondent Aetna Casualty & Surety Company, re-
sisted Perdue’s claim for compensation under the
Longshoremen’s and Harbor Workers’ Compensation
4
Act. They argued that Perdue was not an “employee”
within the meaning of Section 2(3) of the Act, as
amended in 1972, 33 U.S.C. 902(3), because he was
not engaged in maritime duties at the moment he was
injured. They also argued that the location of his
injury did not satisfy the maritime situs requirement
of Section 3(a), as amended in 1972, 33 U.S.C.
903(a).
The administrative law judge rejected the con-
tention that Perdue lost his status as an “employee,”
within the meaning of Section 2(3), when he left the
ROOSEVELT (App. D, infra, 48a). The admin-
istrative law judge nevertheless denied Perdue’s claim
for benefits, concluding that the building where Per-
due was to check out for the day did not satisfy the
maritime situs requirement of Section 3(a) (id. at
40a, 54a-58a). .
The Benefits Review Board reversed (App. C, infra,
32a-36a). It agreed with the administrative law judge
that Perdue, who was engaged generally as a ship
repairman, did not lose his status as an “employee”
the minute he stepped off the vessel (id. at 34a).
It concluded, however, that the administrative law
judge’s interpretation of the situs requirement was
too narrow and would frustrate the underlying ob-
jective of the 1972 amendment to the Act: to provide
a uniform compensation system for covered em-
ployees (ibid.). The Board held that the build-
ing where Perdue was to check out was an “adjoining
area” for purposes of Section 3(a) because it was a
place frequented by Perdue in the course of his em-
5
ployment and maintained by Jacksonville Shipyards to
facilitate its work of repairing vessels (id. at 34a-35a).
The court of appeals set aside the Board’s order
(App. B, infra, 17a-18a). In an opinion disposing of
this and four other cases,’ the court generally ac-
cepted the Board’s definition of “employee” for pur-
poses of Section 2(3). The court did not consider
whether Perdue met the Act’s status requirement as
an “employee,” however, because it held that Perdue
was not injured in a place with the requisite mari-
time situs (id. at 15a-18a). It concluded that the re-
quirement of Section 3(a) would be met only if “the
situs is one ‘customarily used by an employer in load-
ing, unloading, repairing or building a vessel’” (id.
at 15a); that requirement was not met here, the
court found, because Perdue was injured outside a
building far from the water’s edge and used only for
clerical purposes (id. at 17a-18a). On the Director’s
petition, this Court vacated the judgment of the court
* The Court denied certiorari in one of the four other cases.
Halter Marine Fabricators, Inc. vy. Nulty, 483 U.S. 908 (1977).
It granted certiorari and vacated the judgments in this case
and in two of the other cases. All three were remanded for
further consideration in light of Northeast Marine Terminal
Co. v. Caputo, 432 U.S. 249 (1977). P. C. Pfeiffer Co. v.
Ford, 438 U.S. 904 (1977) ; Director, Office of Workers’ Com-
pensation Programs Vv. Jacksonville Shipyards, Inc., 483 U.S.
904 (1977). As in this case, the court of appeals adhered to its
original decision in both of the other cases without discussion.
On November 27, 1978, certiorari was granted in those two
cases. P. C. Pfeiffer Co. v. Ford, No. 78-425. Those cases do
not involve the “situs” question presented by the instant case.
6
of appeals and remanded the case for further con-
sideration in light of Northeast Marine Terminal Co.
v. Caputo, 482 U.S. 249 (1977). See 433 U.S. 904.
On remand the court of appeals adhered to its origi-
nal decision without discussion (App. A, infra, la-2a).
REASONS FOR GRANTING THE PETITION
1. The consistent position of the Director and the
Benefits Review Board has been that every place
within any waterfront facility devoted primarily to
loading, unloading, building, or repairing vessels is a
maritime situs for the purpose of Section 3(a) of the
Longshoremen’s and Harbor Workers’ Compensation
Act. That position has been upheld explicitly by two
courts of appeals * and implicitly by every other court
of appeals that has considered it.* The decision in
the present case therefore creates a conflict among
the circuits on an important issue concerning the
shoreside coverage of the amended Act. Because many
ports and shipbuilding facilities are within the juris-
2See Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d
187, 141 (9th Cir. 1978) ; Sea-Land Service, Inc. v. Director,
Office of Workers’ Compensation Programs, 540 F.2d 629,
638 (3d Cir. 1976). See also Dravo Corp. v. Maxin, 545 F.2d
874, 381 (3d Cir. 1976), cert. denied, 433 U.S. 908 (1977).
3 See Newport News Shipbuilding & Dry Dock Co. v. Gra-
ham, 573 F.2d 167, 169 (4th Cir. 1978), cert. denied, No.
77-1765 (Nov. 27, 1978) ; Pittston Stevedoring Corp. v. Del-
laventura, 544 F.2d 35, 61 n.19 (2d Cir. 1976), affirmed sub
nom. Northeast Marine Terminal Ce. v. Caputo, 482 U.S. 249
(1977) ; Stockman v. John T. Clark & Son, Inc., 589 F.2d 264,
272 (1st Cir. 1976), cert. denied, 433 U.S. 908 (1977).
7
diction of the Fifth Circuit,‘ it is important that the
Court grant review here.°
2. In Northeast Marine Terminal Co. v. Caputo, 432
U.S. 249 (1977), this Court held the Act applicable to
two injuries. One occurred at the inland end of a large
marine terminal, where consignees’ trucks were
loaded with imported cargo for overland transship-
ment. The Court held that the location was a mari-
time situs within the meaning of Section 3(a) of the
Act “ ‘because the terminal adjoins navigable waters
of the United States and parts of the terminal are
used in loading and unloading ships.’” 432 U.S. at
* Approximately 30% of all compensable injuries under the
Longshoremen’s and Harbor Workers’ Compensation Act
occur in the Fifth Circuit.
*In Texports Stevedore Co. v. Winchester, 554 F.2d 245
(5th Cir. 1977), a panel of the Fifth Circuit appeared to
adopt a broad construction of the situs test similar to the one
urged by the Director and applied by the Board in the present
case. The subsequent, and apparently contrary, decision of
the panel in the present case is unexplained except by refer-
ence to the panel’s original opinion. But the Fifth Circuit
had granted rehearing en banc in Texports and heard argu-
ment shortly before its decision on remand in this case. In
the expectation that the court’s opinion en banc in Texports
might well explain its disposition of this case, the Director
sought rehearing in this case and requested that the peti-
tion be held until the decision in Texports. The court denied
the petition for rehearing. We infer from this that the en banc
disposition of Texports either will focus on some aspect of
the situs test not involved in this case or will not support
the position of the Director and the Board. We therefore
believe that the conflict among the circuits is firmly estab-
lished. If the Fifth Circuit should render a decision in Tex-
ports that casts light on the question presented by this
petition, however, we will promptly advise the Court.
8
279.° The fact that the particular place within the
terminal where the injury occurred neither adjoined
the water nor was directly used in loading or unload-
ing ships was not determinative.
The other injury occurred on a pier that was used
not for loading and unloading but only for stuffing
and stripping containers. The pier was part of a
single fenced-in facility that included another pier
that was used for loading and unloading ships. See
432 U.S. at 279. The Court held that the statutory
situs test was satisfied because the injured employee
was working in a terminal that was customarily used
in loading and unloading. Even though the portion
of the facility on which the employee was injured
was not used for that purpose, the Court held the
Act applicable because “[t]he entire terminal facility
adjoined the water and one of its two finger-piers
clearly was used for loading: and unloading vessels”
(432 U.S. at 281).
The same reasoning applies to the location of Per-
due’s injury. The timekeeper’s office near which Per-
due’s injury occurred was part of a single fenced-in
facility adjoining the water, and, like the terminal in
Caputo, it was used for a maritime purpose, even if
the precise part of the facility at which the injury
occurred was not.
3. The court of appeals overlooked one of the major
purposes of the 1972 amendments to the Act, the
elimination of “the phenomenon of shifting coverage.”
®* The Court noted that there was no dispute on this point
and quoted from petitioner’s brief, which, the Court stated,
had “correctly concede[d]” the situs issue.
9
Sea-Land Service, Inc. v. Director, Office of Workers’
Compensation Programs, 540 F.2d 629, 638 (38d Cir.
1976). See Northeast Marine Terminal Co. v. Caputo,
supra, 432 U.S. at 274, 276. Under the Fifth Cir-
cuit’s rule, an employee engaged in the performance
of maritime tasks would move in and out of the Act’s
coverage in the course of his regular working day on
the waterfront, perhaps a number of times, as he
moved to and from a vessel or from one part of a
waterfront area to another. Congress attempted to
eliminate just this kind of adventitious coverage. As
boih committee reports explained, “[t]he intent of
the Committee is to permit a uniform compensation
system to apply to employees who would otherwise be
covered by this Act for part of their activity.” S.
Rep. No. 92-1125, 92d Cong., 2d Sess. 13 (1972);
H.R. Rep. No. 92-1441, 92d Cong., 2d Sess. 10-11
(1972).
Perdue indisputably was « maritime worker; his
only job was to repair vessels. He was engaged in
those tasks throughout the day that he was injured.
At the time of his injury he was performing one of
the requirements of his employment. That should be
enough to bring him within the coverage of the Act.
The rule stated by the court of appeals would pro-
duce confusion and uncertainty by dividing a single
maritime facility into many parts, some of which
satisfy the Act’s maritime situs requirement and
others of which do not. Even worse, the maritime
nature of a particular place might change from time
to time during the day, depending on the tasks being
10 11
performed there at the time a maritime employee was CONCLUSION
injured. Unless the Act clearly compels the Board
and the courts to engage in such a difficult locational
calculus, they should not undertake it.
The Act does not establish the distinction created
by the court of appeals. Section 3(a) speaks broadly
of covering employees injured within “the navigable
The petition for a writ of certiorari should be
granted.
Respectfully submitted.
|
waters of the United States (including any adjoin- | Wave H. McCRer, JR.
kee . ee @ + ss Solicitor General
ing terminal or other adjoining area cus- | CARIN ANN CLAUSS
tomarily used by an employer in * * * repairing, or Solicitor of Labor
building a vessel).” The Mayport Naval Station, LAURIE M. STREETER
where Perdue was injured, adjoins the water where Associate Solicitor
the ROOSEVELT was berthed for repair, and not JOSHUA T. GILLELAN, II
only the Naval Station but even the very building ages cali 1 mate
where Perdue was injured is used by his employer eae of Leber
for tasks that are an integral part of Perdue’s job.
See Northeast Marine Terminal Co. v. Caputo, supra, JANUARY 1979
432 U.S. at 280 n.42. It should make no difference
whether Perdue’s employer required him to check out
on the wharf adjacent to the vessel or at a building
farther away. It is enough that the Mayport Naval
Station had a maritime situs, that Perdue was en-
gaged in maritime employment, and that the em-
ployer’s purpose in using the building was connected
with that maritime endeavor.
~~ Ene ee
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
Nos. 75-1659, 75-2289 and 75-4112
JACKSONVILLE SHIPYARDS, INC., and
AETNA CASUALTY & SURETY COMPANY,
PETITIONERS
v.
HERBERT L. PERDUE and DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR, RESPONDENTS
June 16, 1978
Petitions for Review of Orders of the Benefits
Review Board.
Before TUTTLE, THORNBERRY and TJOFLAT,
Circuit Judges.*
PER CURIAM:
These Longshoremen’s and Harbor Workers’ Com-
pensation Act, 33 U.S.C. §§ 901-950 (1970) (amend-
ed 1972), cases’ are on remand from the Supreme
* Judge Thornberry was a member of the panel that heard
oral arguments but due to illness did not participate in this
decision. 28 U.S.C. § 46(d) (1970).
1 Five cases are contained in the decision of this court in
Jacksonville Shipyards, Inc. v. Perdue, 589 F.2d 533 (5th
Cir. 1976). The three cases involved in the present remand
are Jacksonville Shipyards, Inc. v. Perdue (No. 75-1659),
2a
Court with instructions to reconsider them in light
of Northeast Marine Terminal Co., Inc. v. Caputo,
432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977).
We find that our prior resolution of the coverage
issues presented in each of these cases is consistent
with the rationale expressed in Caputo, and, accord-
ingly, we reaffirm our prior determinations as to the
benefit eligibility of the affected maritime employees
under the Act.
vacated and remanded, 433 U.S. 904, 97 S.Ct. 2967, 53 L.Ed.2d
1088 (1977); and Ayers Steamship Co. Vv. Bryant (No. 75-
4112), which was consolidated with P. C. Pfeiffer Co. v. Ford
(No. 75-2289), vacated and remanded, 433 U.S. 904, 97 S.Ct.
2966, 53 L.Ed.2d 1088 (1977).
38a
APPENDIX B
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
Nos. 75-1659, 75-2833, 75-2289,
75-2317 and 75-4112
JACKSONVILLE SHIPYARDS, INC., and
AETNA CASUALTY & SURETY COMPANY,
PETITIONERS
VU.
HERBERT L. PERDUE and DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR, RESPONDENTS
Sept. 27, 1976
Petitions for Review of Orders of the Benefits Re-
view Board, United States Department of Labor.
Before TUTTLE, THORNBERRY and TJOFLAT,
Circuit Judges.*
TJOFLAT, Circuit Judge.
I
AN OVERVIEW OF THESE CASES
The Parties and Their Dispute. With these five
vigorously contested appeals, petitioners and respond-
ents join battle for the third time. Each individually
* Judge Thornberry was a member of the panel that heard
oral arguments but due to illness did not participate in this
decision. 28 U.S.C. § 46(d) (1970).
4a
named respondent is a shoreside worker who was in-
jured in the course of his employment. These respond-
ents claim that their injuries are covered by the 1972
Amendments to the Longshoremen’s and Harbor
Workers’ Compensation Act (the Act), 33 U.S.C.
$§ 991 et seg. (1970). In their fight for coverage, the
workers have a new and virtually untested weapon,
viz., those portions of the 1972 Amendments which
expanded the scope of the Act.’ They also have a
powerful and articulate ally in the other respondent,
the Director of the Office of Workers’ Compensation
Programs of the United States Department of Labor
(the Director).? The forces arrayed against respond-
ents consist of the workers’ employers and the em-
ployers’ insurance carriers.
Procedural History. In each of the cases, a pre-
liminary skirmish was fought before an Administra-
tive Law Judge.* Reports from these battlefields show
1 Especially pertinent are new Sections 902(3) (definition
of “employee”’), 902(4) (definition of “employer’”), and
903(a) (expanded situs provision in new Act). Despite the
fact that more than three years have passed since the Amend-
ment’s effective date, litigation over the Act’s new coverage
is just now beginning to reach the courts. See Weyerhaeuser
Co. v. Gilmore, 528 F.2d 957 (9th Cir. 1975). See also I. T. O.
Corp. Vv. Benefits Review Bd., 529 F.2d 1080 (4th Cir. 1975),
rehearing en banc granted (4th Cir. Mar. 12, 1976).
2 As shall appear infra, there is a dispute as to whether the
Director is a proper party respondent in this Court, or
whether his status is merely that of amicus curiae. In Part
V of this opinion, we hold that the Director is a proper re-
spondent.
8’ New Section 919(d) provides that evidentiary hearings
shall be held before hearing examiners. The administrative
5a
mixed results; petitioners won three of the engage-
ments, and respondents two. The theater of opera-
tions then shifted to the Washington, D.C., head-
quarters of the Benefits Review Board of the Depart-
ment of Labor (the Board).‘ The Board adopted an
extremely liberal view of the Act’s coverage, and
respondents swept to victory in all five cases. After
losing the fight in Washington, D.C., petitioners
chose to escalate the conflict by asking this Court to
review the Board’s decisions.* |
The Issues on Appeal. Before this Court, the lines
of battle have been drawn with admirable clarity and
good sense. Both sides have declined to assume cer-
tain exposed legal positions where they would quickly
fall prey to the enemy’s fire. Thus, respondents con-
cede that the five accidents would not have been
covered by the pre-1972 Act. Similarly, petitioners
concede that the 1972 Amendments have broadened
regulations relating to the Amendments make it clear that
such hearing examiners are to be Administrative Law Judges.
See 20 C.F.R. § 702.3882 (1975).
* Pursuant to Section 921(b) (3) of the new Act, the Bene-
fits Review Board is authorized to hear appeals by any party
in interest from the Administrative Law Judge’s orders. The
Board must base its decision upon the hearing record and is
bound by a “substantial evidence” standard in its review of
findings of fact. Id.
5 Jurisdiction over these appeals is conferred upon us by
Section 921(c) of the new Act. Thereunder, a party ag-
grieved by a final order of the Board may obtain review of
that order in the Court of Appeals for the federal judicial
circuit in which the employee’s injury occurred.
6a
the Act’s scope to include some shoreside injuries.
The issue which divides the two camps is, of course,
whether the Act was expanded far enough to reach
these five injuries. We hold that the Board properly
awarded benefits to two workers who were handling
maritime cargo on shore, as well as to a carpenter
who was fabricating parts for a new ship. However,
the Board misconstrued the Act in extending cover-
age to the other two respondents, a shipboard worker
who stumbled in front of his employer’s office a mile
from the ship, and an employee who was helping to
tear down a shed in a disused marine repair facility.
Not content with merely jousting over the scope of
the revised Act, three of the petitioners have broken
ranks to seek out other casus belli. The petitioners in
the Halter Marine case argue that the Act is uncon-
stitutional if it covers injuries to shipbuilders on
shore. In Pfeiffer, we are told that the Board vio-
lated the petitioners’ right to due process by the
method in which it awarded a fee to the claimant’s
attorney. The Ayers Steamship petitioners enter the
lists with a plan to split the enemy forces; they claim
that the Director is not a proper respondent in these
appeals. As will hereinafter appear, we reject all of
these additional contentions.
II
SCOPE OF THE 1972 AMENDMENTS
Of the many changes which Congress made in the
Act in 1972, we are here concerned with only one: the
Ta
extension of the Act’s coverage inland to reach cer-
tain maritime-related injuries. Under the prior Act,
coverage was overwhelmingly situs-oriented. As a
general rule, an employee’s injury was compensable if
it occurred “upon the navigable waters of the United
States (including any dry dock) and if recovery for
the disability or death through workmen’s compen-
sation proceedings may not validly be provided by
State law ...”.° Interpretation of this provision was
immensely complicated by a judicially created doc-
trine under which some “maritime but local” injuries
could be covered by both state and federal compensa-
tion schemes. See, e.g., Calbeck v. Travelers Ins. Co.,
370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962) ;
Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct.
225, 87 L.Ed. 246 (1942). However, the Supreme
Court made it clear that, whatever the exact param-
eters of the “maritime but local” doctrine, the federal
Act would generally be confined to injuries occurring
over the waters. Thus, in Nacirema Operating Co. v.
Johnson, 396 U.S. 212, 90 S.Ct. 347, 24 L.Ed.2d 371
(1969), the Court held that the Act did not cover in-
juries to longshoremen who were working on a pier
permanently affixed to the shore. Coverage was de-
nied despite the fact that the workers had been in-
* See former 33 U.S.C. § 903(a). There were certain exemp-
tions from coverage, all of which have been carried over into
the new Act. See id., as amended, § 903(a) (1) (masters and
crew members; persons engaged by niasters to service vessels
under eighteen tons net) ; id. § 903(a) (2) (government em-
ployees) ; id. §903(b) (injuries caused solely by the em-
ployee’s intoxication or willful conduct).
8a
jured while loading and unloading ships, an employ-
ment as maritime in nature as any land-based em-
ployment could be.’ The inequities of this ‘“‘water’s
edge” division between covered and non-covered work
were a major factor behind the decision to expand the
scope of the Act.’
Two cf the Act’s new sections are pertinent to the
present appeals.’ The first of these defines the status
which the affected employee must occupy to bring his
injury within the Act’s coverage:
The term “employee” means any person engaged
in maritime employment, including any long-
* Further underscoring the maritime context of these in-
juries was the fact that the injuries were caused by ships’
cranes which had swung out of control. 396 U.S. at 213-14,
90 S.Ct. 347.
® See H.R. No. 92-1441, 1972 U.S. Code Congressional &
Administrative News at 4707.
°None of the employers denies that it is an “employer”
within the meaning of new Section 902 (4) :
The term “employer” means an employer any of whose
employees are employed in maritime employment, in
whole or in part, upon the navigable waters of the United
States (including any adjoining pier, wharf, dry dock,
terminal, building way, marine railway, or other adjoin-
ing area customarily used by an employer in loading,
unloading, repairing, or building a vessel).
In any event, it is clear that this section requires merely
that an employer have at least one employee engaged in “‘mari-
time employment” (the requirement of new Section 902(3)’s
definition of an “employee’’) on the situs defined in new Sec-
tion 903(a). Thus, if a claimant can satisfy Sections 902 (3)
and 908(a), his employer is automatically brought within
Section 902 (4).
9a
shoreman or other person engaged in longshoring
operations, and any harborworker including a
ship repairman, shipbuilder, and shipbreaker . . .
33 U.S.C. § 902(3).
The other provision describes the situs where a cov-
ered injury must occur:
Compensation shall be payable under this chapter
in respect of disability or death of an employee,
but only if the disability or death results from an
injury occurring upon the navigable waters of
the United States (including any adjoining pier,
wharf, dry dock, terminal, building way, marine
railway, or other adjoining area customarily
used by an employer in loading, unloading, re-
pairing, or building a vessel). Jd. § 903(a).
From these statutes, the general thrust of the new
Act’s coverage is clear. Congress has replaced the old
“water’s edge” analysis with a two-part test which
requires (1) that the claimant have been engaged in
“maritime employment” and (2) that the injury have
taken place upon the situs specified in the Act.
The Act’s definition of “maritime employment” is
the focus of most of the legal controversy which rages
in the parties’ voluminous briefs. Unfortunately,
much of this learned debate is of little relevance, if
any, to the cases now before this Court. Counsel have
drawn our attention to a host of pre-1972 decisions
which discussed the meaning of the term “maritime
employment” as used in the former Act. See, e.9.,
Pennsylvania R. R. v. O’Rourke, 344 U.S. 334, 73
S.Ct. 302, 97 L.Ed. 367 (1953); Nalco Chemical
10a
Corp. v. Shea, 419 F.2d 572 (5th Cir. 1969). Under
the old Act, as under the present one, an employer
was liable if he had one or more employees engaged
in “maritime employment’. However, judicia! con-
structions of the pre-1972 Act were necessarily
limited by the “water’s edge” approach of that sta-
tute." For this reason, these older cases simply do
not speak to the issue of what land-based employment
is sufficiently “maritime” to be covered by the new
Act.” Fortunately, Congress itself has answered that
question. The terms of the statute allow coverage for
an injured employee who was working as a long-
1° Compare old 33 U.S.C. §902(4) with new 33 U.S.C.
§ 902(4). As we have indicated, swpra note 9, the only way
to read the new Act consistently is to give the words “mari-
time employment” in new Section 902(4) the same meaning
as in new Section 902(3).
1 Not only, as noted was the “water’s edge” doctrine applied
to the situs of the claimant’s injury, but the “maritime em-
ployment” of the employer’s workers was required to take
place “upon the navigable waters of the United States (in-
cluding any dry dock)”. See old 33 U.S.C. § 902(4).
12 The commendable diligence of counsel has uncovered some
scattered dicta which might be read as suggesting the gen-
eral nature of “maritime” work. See, e.g., Pennsylvania R. R.
v. O’Rourke, supra, 344 U.S. at 339-40, 73 S.Ct. 302. These
occasional pronouncements by the courts have, at best, only
the most tenuous connection with the 1972 Amendments’
extension of coverage to shoreside injuries. In comparison
with the statutory language itself and the legislative history,
the timeworn dicta which are urged upon us are entitled to
little weight. Also, we note that none of the instant appeals
involves an injury which occurred over the waters. There-
fore, we need not, and do not, decide if the new Act made any
changes in the coverage of such injuries.
lla
shoreman, a ship repairman, a shipbuilder, or a ship-
breaker.” The legislative history tells us that an
injured employee will be covered if he was “engaged
in loading, unloading, repairing, or building a
vessel,” “* but will not be covered merely because he
was injured in the area defined by new Section 903
(a). In light of these indicia of Congressional in-
tent, we must agree with the Court of Appeals for
the Ninth Circuit that the new Act requires such a
claimant to have been engaged in the work of loading,
etc. at the time of the injury. Weyerhaeuser Co. v.
Gilmore, 528 F.2d 957, 960 (9th Cir. 1975). We
therefore reject respondents’ contention that an em-
ployee’s general job classification (such as “longshore-
man” or “ship repairman’) will bring him within the
Act’s coverage regardless of the nature of the work
which he was performing when he was injured.” In
its reports, Congress has also indicated the extent to
8 33 U.S.C. § 902 (3).
4 In light of the statutory language, we regard the omission
of shipbreaking from this passage as inadvertent.
1° “The Committee does not intend to cover employees who
are not engaged in loading, unloading, repairing, or building
a vessel, just because they are injured in an area adjoining
navigable waters used for such activity.”” H.R. No. 92-1441,
1972 U.S. Code Congressional & Administrative News, at
4708.
For the same reason we also cannot accept the notion
that the official name of an employee’s union or the language
of a union’s jurisdictional agreement is dispositive of the issue
of coverage. It is the employee’s work at the time of the in-
jury which controls.
12a
which coverage should be granted to persons who are
not themselves loading, unloading, repairing, build-
ing, or breaking a vessel but who are nevertheless
performing closely related functions. Thus, the House
Report states that a checker would be performing
covered work if he was “directly involved in the load-
ing or unloading functions. . .”."" Our holding is that
an injured worker is a covered “employee” if at the
time of his injury (a) he was performing the work
of loading, unloading, repairing, building, or break-
ing a vessel, or (b) although he was not actually
carrying out these specified functions, he was “direct-
ly involved” in such work.”
We specifically reject a theory which petitioners in
the Pfeiffer and Ayers Steamship cases advance as
the proper rule for cargo handling operations. They
claim that the Act’s coverage depends upon whether
cargo has reached its shoreside “point of rest’’, as that
17 Id. (Emphasis supplied.) The same report also states that
clerical employees who do not “participate in the loading or
unloading of cargo” would not be covered by the new Act.
Id.
18 See Gorman, The Longshoremen’s and Harbor Workers’
Compensation Act—After the 1972 Amendments, 6 Journal
of Maritime Law and Commerce 1, 10 (1974). By this holding,
we do not mean to suggest that future cases may not bring
to light other types of covered work which cannot be charac-
terized as loading, unloading, repairing, building, or breaking,
and which are not “directly involved” with these five types of
work, but which nevertheless are sufficiently similar to fall
within the Congressional scheme. No such additional category
of covered work appears in the cases before us, but we will
not foreclose the possibility of such categories arising in
future litigation.
13a
term is used in the maritime industry.” To these
petitioners, men who are handling cargo on its way to
a vessel are not covered by the Act until that cargo
reaches its last marshaling area prior to being taken
on board a ship. Similarly, under this theory men
who are unloading cargo from ships are performing
covered work only until they reach the first marshal-
ing area for cargo on shore. We are unable to find
any support for such a hypertechnical construction of
the 1972 Amendments.” In our view, if Congress
had wished to adopt the “point of rest” as the test
for coverage, it would have made that intention clear.
As it is, the “point of rest” analysis is to be found
neither in the statute itself nor in the legislative his-
tory. The closest approach to such a test appears in
the following passage from the House Report:
To take a typical example, cargo, whether in
break bulk or containerized form, is typically
unloaded from the ship and immediately trans-
ported to a storage or holding area on the pier,
wharf, or terminal adjoining navigable waters.
1° The Federal Maritime Commission has defined the “point
of rest” as follows:
For the purpose of this section, “point of rest” shall be
defined as that area on the terminal facility which is
assigned for the receipt of inbound cargo from the ship
and from which inbound cargo may be delivered to the
consignee, and that area which is assigned for the receipt
of outbound cargo from shippers for vessel loading. 46
C.F.R. § 533.6(c) (1975).
20 A narrowly technical construction of the Longshoremen’s
and Harbor Workers’ Compensation Act has traditionally been
disfavored. See, e.g., Luckenbach S.S. Co. v. Norton, 106
F.2d 187, 188 (3d Cir. 1939).
l4a
The employees who perform this work would be
covered under the bill for injuries sustained by
them over the navigable waters or on the ad-
joining land area . . . [E]mployees whose re-
sponsibility is only to pick up stored cargo for
further transshipment would not be covered...
H.R. No. 92-1441, 1972 U.S. Code Congressional
& Administrative News, at 4708.
In our opinion, these remarks establish no more than
that workers who bring cargo to a storage area from
on board ship are covered, while those persons (gener-
ally truckers or railroad personnel) who merely re-
ceive cargo and transport it inland are not covered.
The House Committee in this passage did not even
mention those employees who handle cargo between
the first holding area and the cargo’s departure via
land transportation. It is precisely the treatment of
this intermediate group of workers with which we
are here concerned, and this passage is totally silent
as to them. Elsewhere, as we have seen, the Commit-
tee indicated that employees who are directly involved
in loading or unloading will be covered by the new
Act. In the absence of explicit language which would
establish a “point of rest” dividing line for shoreside
cargo handlers, we will apply this general test to them
as well.”
21 In deciding how to interpret the Amendments and their
legislative history, we have remembered that this Act is to be
liberally construed in favor of injured employees. See Voris
v. Hikel, 346 U.S. 328, 333, 74 S.Ct. 88, 98 L.Ed. 5 (1953).
In our view, this principle requires us to resolve doubts as to
l5da
Our interpretation of the new situs provision fol-
lows the same general lines as our construction of
Section 902(3). Just as we choose to ignore the labels
which an employer or a union has bestowed upon an
employee, and instead rely upon the employee’s work
function at the time of the injury, likewise we will
look past an area’s formal nomenclature and examine
the facts to see if the situs is one “customarily used
by an employer in loading, unloading, repairing or
building a vessel.” The clear statutory scheme is to
cover employees who are injured while performing
certain types of work in an area which is customarily
used for such work. Whether or not an employer or
local custom has decided to designate an area as a
“terminal”, for example, is not dispositive of the
situs issue. We will require that a putative situs
the new Act’s coverage in favor of a particular group of work-
ers such as cargo handlers landward of the “point of rest’.
Brief mention should also be made of the House Committee’s
announced intention “to permit a uniform compensation sys-
tem to apply to employees who would otherwise be covered by
this Act for part of their activity”, H.R. No. 92-1441, supra,
at 4708. We agree that here the Committee was speaking of
one inequity of the old “‘water’s edge” approach, under which
cargo handlers would walk in and out of coverage as they
moved between ship and shore. However, we see no reason to
treat this statement as a comprehensive description of the new
Act’s coverage, with the result that only those workers who
spend part of their days upon the waters would be covered.
In this passage, the Committee was merely addressing itself
to one anomaly which it wished to eliminate. The same para-
graph clearly states that checkers would be covered by the
new Act, and the Committee gave no indication that coverage
would depend on whether the checkers went on board ship.
The test, rather, was to be whether they were “directly in-
volved in the loading or unloading functions”. Jd.
l6a
actually be used for loading, unloading, or one of the
other functions specified in the Act. As with the
“maritime employment” test, we also interpret the
Act as requiring that the situs meet the statutory
requirements as of the time of the injury. It will not
suffice if the area was so used only in the past, or if
such uses are merely contemplated for the future.
IIl
THE COVERAGE ISSUE IN
THESE APPEALS
With the general tests for the amended Act’s cover-
age in mind, we now turn to the specific facts of each
of the present cases. In deciding each appeal we must
remember that the Act is to be liberally construed in
favor of injured workers, see Voris v. Hikel, 346 U.S.
328, 333, 74 S.Ct. 88, 98 L.Ed. 5 (1953). We are also
bound by a statutory presumption that an individual
claim comes within the Act’s coverage. 33 U.S.C.
§ 920(a). Finally, we will not set aside an award
made by the Benefits Review Board so long as it is
supported by substantial evidence on the record con-
sidered as a whole, and so long as there is a reason-
able legal basis for the Board’s conclusions. See
O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504,
508, 71 S.Ct. 470, 95 L.Ed. 403 (1951); Cardillo v.
Liberty Mutual Ins. Co., 330 U.S. 469, 478-79, 67
S.Ct. 801, 91 L.Ed. 1028 (1947) .”
22 Although these cases were decided under the old Act,
which provided for administrative adjudication by a deputy
17a
A. No. 75-1659. Herbert Perdue was employed by
Jacksonville Shipyards, Inc., as a shipfitter. On Feb-
ruary 2, 1973, he performed repair work for a twelve-
hour shift (7:00 a.m. to 7:00 p.m.) abroad an aircraft
carrier which was berthed at the Mayport Naval Sta-
tion in Jacksonville, Florida. At the end of his work-
ing day, Perdue took a bus to an office which his
employer maintained approximately one mile from
the carrier. The bus was provided by Perdue’s em-
ployer, and the office was the place where Perdue had
to “punch out” on a time clock before and after each
shift. While alighting from the bus near the office,
Perdue stumbled and injured his left knee in a fall
upon the pavement. In our view, the Board should
have sustained the Administrative Law Judge’s de-
termination that Perdue was not injured on a situs
defined by new Section 903(a). There is literally
nothing in the record to support a conclusion that the
employer’s office was on the navigable waters or in an
“adjoining area customarily used by an employer in
loading, unloading, repairing, or building a vessel.”
The vessel upon which Perdue was working was a
mile away, and the “punch out” office was a purely
clerical and administrative post separated from the
waters by other facilities which likewise were not
used for loading, unloading, ship repair, or shipbuild-
commissioner and for judicial review by a United States
District Court, petitioners have offered no reason why the
standard of review should be different under the present Act.
18a
ing. Under no reasonable construction of the Act
did this area either “adjoin” the waters or carry out
any of the functions specified in Section 903(a). We
reject the argument that the new Act covers every
point in a large marine facility where a ship repair-
man might go at his employer’s direction. In the
words of the Administrative Law Judge below, the
locus of this injury had “nothing to do with loading,
unloading, building or repairing vessels” (Appendix
at 19). Therefore we must reverse the Board’s de-
termination that Perdue is entitled to compensation
under the new Act.
B. No. 75-2833. Charles W. Skipper was another
employee of Jacksonville Shipyards, Inc. For many
years, he had been primarily engaged in ship repair
work as a welder and burner. On the morning of
February 8, 1974, Skipper reported for work as usual.
However, instead of being assigned to his normal
duties as a ship repairman, he was sent across the
St. Johns River to a disused marine facility called
the Southside Yard. There, he was to assist in tearing
down a building which had formerly housed a fabrica-
tion shop. The purpose of dismantling this structure
was to salvage some steel for use in constructing a
plant which would manufacture sandblasting equip-
ment. The activities of Jacksonville Shipyards, Inc.,
are quite diversified, and the contemplated plant was
a new business venture. Skipper himself had pre-
23 The parties have stipulated that the nearest body of
water was 500 yards away from the office.
19a
viously from time to time been assigned work, such
as this salvage operation, which did not involve ship
repair. On the day in question, Skipper was injured
when some beams fell from the structure during the
dismantling process and several steel fragments
struck his forehead. At the time of the injury, all
of the shops in the Southside Yard were closed, and
no repair or fabrication work was being carried out
there. Occasionally, ships would still be tied up at the
pier in the Southside Yard, and repairmen or other
workers would be sent from the employer’s active facili-
ties to work on thee ships. However, such work would
have no relationship to the various disused facilities in
the Southside Yard, including the former fabrication
shop in question, which was located between one hun-
dred fifty and two hundred feet from the water. On
these facts, we perceive no basis for the conclusion
below that Skipper’s injury is compensable under the
new Act. Under no reasonable view was Skipper per-
forming ship repair work at the time of his injury,
nor was he carrying out any other of the types of
work which the statute specifies as “maritime em-
ployment”. We further hold that this salvage gang
was not engaged in any work sufficiently similar to
the statutory categories to be seen as a type of shore-
side employment which was fairly within Congress’
intent despite not being named in the 1972 Amend-
ments. As we have already indicated, we refused to
attach controlling weight to an employee’s regular
job classification. Therefore, we will not consider
Skipper a “ship repairman” under Section 902(3)
20a
merely because he normally performed ship repair
work. We look only to his duties at the time of the
injury, and these were decidedly not within the con-
templation of the statute.
It is equally clear that Skipper was not injured
on a situs as defined in new Section 903(a). We have
held that under Section 903(a) a covered situs must
be “customarily used by an employer in loading, un-
loading, repairing, or building a vessel” as of the
time of the injury. In this case, the Southside Yard
shops had been inactive for approximately a year
when Skipper was injured. No repair work or any
other work specified by the statute was being per-
formed in these buildings. Therefore, we must con-
clude that the former shops had lost their status as
ship repair or shipbuilding facilities, and that Skipper
was not injured on a Section 903(a) situs.
Because we reverse the administrative finding of
coverage under the Act, we need not reach the other
issues discussed by the parties, such as the propriety
of the award which Skipper received for a facial scar
and the various requests which the claimant’s lawyers
have made for attorneys’ fees.
C. No. 75-2289. In this case, the parties agree
that the situs of the injury was within the contempla-
tion of new Section 903(a), and the only dispute is
whether the claimant was performing covered work.
On April 12, 1973, Diversion Ford was injured at the
port of Beaumont, Texas, while helping to secure a
military vehicle to a railway flat car in preparation
for its transportation inland. The vehicle in question
21a
had arrived either two or seventeen days prior to the
date of the accident. Since then, it had remained in
the immediate waterfront area. On the day before the
injury, a gantry crane at the water’s edge had lifted
the vehicles onto the flat ears. Ford’s work of fasten-
ing the vehicles to the flat cars was therefore the last
step in transferring this cargo from sea to land
transportation. On the other hand, the vehicles were
not moved directly from the ship to the flat cars but
instead were taken first to a storage area. There is
no dispute, then, that the “point of rest’ for these
vehicles had intervened since their arrival in port.
However, we have today chosen not to adopt the
“point of rest” theory of coverage for shoreside cargo
handlers. In addition to the general reasons which
we have already given for our conclusion, we cannot
overlook the injustices which the proposed test would
create in a case like this one. Petitioners apparently
concede that Ford would be covered if his work were
part of a continuous operation which began with the
cargo’s departure from a ship’s hold. As respondents
correctly point out, we are being asked to deny cover-
age purely because of a discontinuity in time created
by the cargo’s having been stored for a while along
the shore. In contrast, under the test which we have
adopted a shoreside worker like Ford would be covered
if he was directly involved in “longshoring opera-
tions” such as unloading a ship. The work which
Ford was performing was evidently an integral part
of the process of moving maritime cargo from a
ship to land transportation. Accordingly, we perceive
22a
an ample basis for the Board’s determination that
Ford was performing covered work, and we therefore
affirm that decision.“* _
D. No. 75-2317. On July 30, 1973, John L. Nulty
was employed as a carpenter at a shipyard in Moss
Point, Mississippi. At the time of his injury, Nulty
was building a piece of woodwork which was to be in-
stalled in a new ship that had been launched but not
yet commissioned. The ship was berthed about 300
feet from the fabrication shop where Nulty was work-
ing. The part which Nulty was fabricating was de-
signed to hold a spare wheel on board the new ship.
Most of Nulty’s work was performed in the shop,
although at times he would go on board a vessel to
take measurements, or to install or repair some wood-
work. The parties agree that a fellow employee
known as a “shipfitter’” would have picked up and
installed the item which Nulty was building when he
was injured. Under these facts, the Administrative
Law Judge and the Benefits Review Board found that
Nulty was working as a “shipbuilder” at the time of
his injury and thus satisfied Section 902(3)’s defini-
tion of covered work. In our view, the only reasonable
conclusion is that Nulty was directly involved in an
ongoing shipbuilding operation. Under the test which
24 Petitioners’ briefs are rich in references to the title of
Ford’s union (which was the “warehousemen’s” rather than
the “longshoremen’s” union) and to the jurisdictional agree-
ment between the two unions. As we have already indicated,
we do not regard such matters as dispositive; instead, we
look to the duties which a claimant was performing at the
time of his injury.
23a
we have adopted, then, Nulty is entitled to compensa-
tion under the new Act. We accordingly affirm the
Board’s finding of coverage.
EK. No. 75-4112. On May 2, 1973, Will Bryant
was injured while working as a “cotton header” in
a warehouse immediately adjacent to a pier in Galves-
ton, Texas. At the port of Galveston, loads of cotton
are first deposited at various shoreside warehouses
by the inland shippers. The cotton is then placed
upon dray wagons and taken to pier warehouses such
as the one where Bryant was injured. The work
performed by Bryant and other “cotton headers” is
to unload the bales of cotton and stack them in pier
warehouses. Two local unions, known to many as
“cotton header’s” and “longshoremen’s” locals, have
strictly divided waterfront operations between them.
Generally, the cotton remains in these warehouses
until other employees from the “longshoremen’s”
union take it on board ship. This storage period may
last from less than one day to several weeks, although
the average interval is about one week. At times, the
cotton will be moved from one pier warehouse to
another before being taken to a ship. In such cases,
dray wagons are again used to carry the cotton, and
“cotton headers” unload these wagons at the receiv-
ing warehouse. Occasionally, the cotton is moved
directly from a dray wagon to a ship, in which event
the work is performed solely by “longshoremen’”’. The
cotton which Bryant was handling at the time of his
injury remained in the same warehouse for five days
before “longshoremen” arrived to take the cargo
24a
aboard a vessel. On these facts, we affirm the Board’s
conclusion that the injury sustained by Bryant is
within the Act’s coverage. The situs was a pier-side
warehouse in which cotton is stored temporarily be-
fore being taken on board ships. Usually, the cargo
is taken directly from the warehouse to a ship. It
is clear that Bryant was working on a waterfront
area “customarily used by an employer in loading
...a vessel”, and that therefore the requirements of
Section 903(a) are met. We also will not set aside
the Board’s determination that Bryant was perform-
ing the work of an “employee” as defined in Section
902(3). We have already noted the established prin-
ciple of liberal construction of this Act, and the statu-
tory presumption that a claim is within the Act’s
coverage. Also, we are bound to respect the Board’s
conclusions if they are supported by the record and
if they have a reasonable legal basis. In view of the
limited nature of our review, we cannot say that the
Board erred in defining Bryant’s work status. As
we here reiterate, we reject the notion that a “point
of rest” such as the pier-side warehouse in this case
marks the division between covered and uncovered
work. We have no doubt that Bryant would be di-
rectly involved in “longshoring operations” if, in-
stead of setting the cargo down, he had handed it to
a “longshoreman” for immediate loading on board a
ship. The brief discontinuity in time created by the
cotton’s temporary storage did not alter the essential
nature of Bryant’s work, which was an integral part
of the ongoing process of moving cargo between land
transportation and a ship. Clearly, there is adequate
25a
support for a conclusion that Bryant was directly
involved in “longshoring operations” and therefore
falls within the terms of Section 902(3). Thus, we
affirm the Board’s decision that the injury in this
case is covered by the new Act.”
IV
A CONSTITUTIONAL QUESTION
It is earnestly argued by Halter Marine Fabri-
cators, Inc., and its insurance carrier that the new
Act is unconstitutional insofar as it extends coverage
to shipbuilding employees who are injured on land.
We are reminded that traditionally a contract to
build a ship has not been considered to be within
the admiralty jurisdiction,” and that admiralty has
traditionally included only those torts which occur
upon the waters.” In the Halter Marine case, the em-
ployee was injured while working on land in further-
ance of a shipbuilding operation. Therefore, we are
told, Congress has exceeded the fixed boundaries of
admiralty jurisdiction by covering work under a non-
maritime contract which is performed on a situs out-
*® Once again, we refuse to base our decision upon the desig-
nations of the two waterfront unions as “cotton header’s” and
“longshoremen’s” or upon the terms of their jurisdictional
agreements. Compare note 24, supra.
*6 See, e.g., Thames Towboat Co. v. The Francis McDonald,
254 U.S. 242, 243, 41 S.Ct. 65, 65 L.Ed. 245 (1920).
27 See, e.g., Executive Jet Aviation, Inc. v. City of Cleve-
land, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972).
26a
side the scope of traditional tort jurisdiction. In es-
sence, the argument is that the sum of traditional
admiralty tort and contract jurisdiction defines the
absolute limits within which Congress may legislate
under the Admiralty Clause.” We disagree with this
proposition. No authority supports the notion that, in
enacting a uniform compensation scheme for water-
front employees, Congress must find a “contract” or
“tort” peg upon which to hang its legislation. The
true analysis to be applied to such statutes is quite
different. It must begin with the long-standing ju-
dicial recognition of Congress’ broad powers to ex-
pand the reach of admiralty jurisdiction. Contrary
to the impression created by petitioners’ briefs, such
judicially authorized expansion has often been geo-
graphical in nature. See, e.g., The Genesee Chief, 12
How. 448, 13 L.Ed. 1058 (1851), overruling The
Thomas Jefferson, 10 Wheat. 428, 6 L.Ed. 358 (1825)
(abandoning former limitation of admiralty jurisdic-
tion to the tidewaters). The cases which “approve
the many changes which Congress has made in ad-
miralty jurisdiction are replete with statements such
as the following:
The authority of the Congress to enact legisla-
tion of this nature [the Ship Mortgage Act, 46
** Art. III, Section 2 of the Constitution extends the federal
judicial power “to all Cases of admiralty and maritime Juris-
diction . . .” This clause has always been construed as em-
powering Congress to legislate in maritime matters. See, e.g.,
Romero v. International Terminal Operating Co., 358 U.S.
354, 361, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959).
27a
U.S.C. §§$ 911 et seg.] was not limited by pre-
vious decisions as to the extent of the admiralty
jurisdiction. We have had abundant reason to
realize that our experience and new conditions
give rise to new conceptions of maritime con-
cerns. These may require that former criteria of
jurisdiction be abandoned . . . Detroit Trust Co.
v. The Thomas Barlum, 293 U.S. 21, 52, 55
S.Ct. 31, 41, 79 L.Ed. 176 (1934).
The Supreme Court has also consistently followed the
view that this Congressional power “permits of the
exercise of a wide discretion”. Panama R.R. v. John-
son, 264 U.S. 375, 386, 44 S.Ct. 391, 394, 68 L.Ed.
748 (1924). Our conclusion is that, in the exercise
of its discretion, Congress could properly determine
that ‘new conceptions of maritime concerns” justified
the extension of compensation coverage to workers in
the immediate waterfront area who participate in an
ongoing shipbuilding operation. As the legislative his-
tory makes clear, Congress was concerned that under
the former Act maritime workers were covered over
the waters but not covered while performing similar
or related work on shore. The inequities of the pre-
1972 Act in this regard are obvious, and we feel that
this concern was a legitimate reason for Congress to
exercise its discretion. We also feel that this concern
was a “maritime” one within the meaning of the
Admiralty Clause. We have already indicated that,
in defining “maritime” concerns, we will not be
limited by the rules which apply to tort and contract
litigation. In the present case, we are not consider-
28a
ing whether Congress would authorize suits upon
shipbuilding contracts or whether land-based torts
could be made actionable by an admiralty statute.”
We deal only with the case before us, and in our view
Congress could reasonably have felt that shipbuilding
employees beside the navigable waters were perform-
ing a sufficiently maritime function to be covered by a
revamped harbor workers’ compensation statute. We
therefore cannot conclude that Congress exceeded its
broad discretion by extending coverage to such work.”
V
DIRECTOR A PROPER RESPONDENT
This issue is before the Court in rather an odd
fashion. In their main brief on appeal, the Ayers
Steamship petitioners allege that the Director of the
Office of Workers’ Compensation Programs, United
States Department of Labor, is not a proper respond-
ent in this Court, although he could appear as amicus
curiae. We decline to consider the merits of this
contention. First, we note that petitioners have never
moved to dismiss the Director as a respondent. In
our view, the relief which petitioners seek—dismissal
of the Director as a party and addition of him as
*® See 1A Benedict on Admirality § 94, at 5-15 (6th ed.
1973).
* Because of our disposition of this issue, we need not reach
the question of whether the 1972 Amendments were an exer-
cise of Congress’ power under the Commerce Clause as well as
under the Admiralty Clause.
29a
amicus curiae—is properly requested by a motion
pursuant to Rule 27 of the Federal Rules of Appellate
Procedure. Under that Rule, a motion is the ap-
propriate vehicle for making “an application for an
order or other relief”, a category which clearly in-
cludes the request which petitioners have made for
the first time in their brief. Furthermore, even as-
suming that petitioners have adequately raised this
point, we cannot overlook the fact that in the two
Jacksonville Shipyards cases another panel of this
Court has granted motions by the Director to be
added as a party respondent. These legal determina-
tions that the Director may properly appear as a
respondent must be respected by this Court. As a
general rule, one panel cannot overrule the precedents
set by another panel, absent some intervening factor
such as a new controlling decision of the Supreme
Court. See Davis v. Estelle, 529 F.2d 437, #41 (5th
Cir. 1976). No such factor is present in this case,
and we will therefore allow the Director to remain
before this Court as a respondent.
VI
DUE PROCESS
In the Pfeiffer case, the Benefits Review Board
awarded an attorney’s fee to counsel for the success-
ful claimant. The fee covered only the work which
was performed before the Board, and the manner of
its award was as follows. Pursuant to the applicable
30a
regulation,” counsel presented his request for an at-
torney’s fee, supported by a complete statement of the
services which had been performed. Finding a fee
of $1,000 to be “fair and reasonable for the work
done in connection with these appeals”, the Board
approved an award in that amount, remanding the
case to the Administrative Law Judge for determina-
tion of a fee for counsel’s services at that level. Pe-
titioners opposed the award, arguing that counsel had
not “properly proved” the reasonableness of the fee
and that petitioners should have an opportunity to
offer evidence and to cross-examine counsel on the
amount of his fee. The evidentiary hearing which
they requested was alleged to be a requirement of the
Fifth Amendment’s Due Process Clause. The board
rejected these arguments, and so do we. Government
officials are, of course, required to minimize the risks
of error and unfairness in the procedures by which
one is deprived of life, liberty, or property. See, e.g.,
Goss v. Lopez, 419 U.S. 565, 581, 95 S.Ct. 729, 42 L.
Ed.2d 725 (1975); Mitchell v. W. T. Grant Co., 416
U.S. 600, 609-10, 618, 94 S.Ct. 1895, 40 L.Ed.2d 406
(1974). We feel that these risks were adequately
minimized by the procedures which the Board fol-
lowed. The Board was clearly able to evaluate the
services which counsel performed before it. It was
the Board which read counsel’s briefs and observed
his representation of the claimant in the administra-
120 C.F.R. § 702.182 (1975). The statutory basis for this
regulation is 33 U.S.C. §§ 928(a) & (c), as amended.
3la
tive appeal. Thus, the fee which the Board granted
was carefully limited to those services of which it had
first-hand knowledge. Especially in view of the ex-
tremely generalized nature of petitioners’ attack upon
the fee’s reasonableness, we cannot say that disposing
of petitioners’ objections without an evidentiary hear-
ing was a violation of the Due Process Clause.
Vil
CONCLUSION
For the foregoing reasons, the decisions of the
Benefits Review Board in Nos. 75-1659 and 75-2833
are REVERSED. The Board’s decisions in Nos. 75-
2289, 75-2317 and 75-4112 are AFFIRMED in all
respects.
32a
APPENDIX C
U.S. DEPARTMENT OF LABOR
BENEFITS REVIEW BOARD
Washington, D.C. 20210
BRB No. 74-200
Filed as part of the record Jan. 31, 1975
Carolyn D. McCready (Clerk)
Benefits Review Board
HERBERT L. PERDUE, CLAIMANT
Vv.
JACKSONVILLE SHIPYARDS, INC.
and
AETNA CASUALTY & SURETY Co.,
EMPLOYER/CARRIER-RESPONDENTS
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PRo-
GRAMS, UNITED STATES DEPARTMENT OF LABOR,
PETITIONER
DECISION
Appeal from Decision and Order of Administrative
Law Judge Edwin E. Bernstein, U. S. Department
of Labor.
Before: Washington, Chairperson, Hartman and
Miller, Members
Hartman, Member:
33a
This is an appeal by the Director, Office of Work-
ers’ Compensation Programs, from a decision and
order (74-LHCA-58) of Administrative Law Judge
Bernstein denying compensation benefits pursuant to
the provisions of the Longshoremen’s and Harbor
Workers’ Compensation Act, as*amended, 33 U.S.C.
§ 901 et seg. (hereafter referred to as the Act).
In 1978, the claimant was working as a shipfitter
aboard a vessel berthed at a naval station on a twelve
hour shift. The claimant was required by the em-
ployer to “punch in and out” at a time clock in an
office maintained by his employer within the naval
station. The office was located approximately one
mile by land from the ship on which he was working
and approximately 500 feet from navigable water.
The employer provided a bus to transport employees,
such as the claimant, between this office and their
work sites. The claimant injured his knee while dis-
embarking from the bus at the end of his shift in
order to “punch out”.
The employer did not controvert the causal connec-
tion between the injury and the employment or the
extent of the injury, but rather alleged that the in-
jury was not covered by the provisions of the Act.
The administrative law judge, while finding that
the employer and employee were covered under Sec-
tions 2(3) and 2(4) of the Act, 33 U.S.C. §§ 902(3)
and 902(4), nevertheless rejected the claim finding
that the injury did not occur on navigable waters as
required by Section 3(a) of the Act, 33 U.S.C. § 903
(a).
34a
The Director appeals alleging that the injury, oc-
curring in the course of employment and within the
confines of the naval station, is within the coverage
of the amended Act. The issue on appeal, therefore,
is whether the location where the injury occurred
comes within the scope of Section 3(a) of the Act.
The Board agrees with the Director. The claimant
was found by the administrative law judge to have
been engaged in employment covered by the Act. An
integral and essential part of that employment, as
required by the employer, was “punching out’ at the
end of a shift at a specified location.
Section 3 of the Act was amended in 1972 to ex-
pand coverage shoreward to include employees de-
fined in Section 2(3) of the Act who were injured
in “any adjoining area customarily used by an em-
ployer in... repairing, or building a vessel.” This
was intended to avoid the inequities of coverage by
an employee walking into and out of the scope of the
Act during the workday. Herron v. Brady Hamilton
Stevedore Co. and Firemen’s Fund Insurance Co.,
BRB No. 74-171 (January 23, 1975).
The administrative law judge’s conclusion that the
office containing the punch clock was not such an
area customarily used by the employer is not well
founded. The Board views this location as compris-
ing an area in which an essential and integral part
of claimant’s employment took place. Distance from
navigable waters alone is not determinative of cover-
age, but rather all of the circumstances surrounding
85a
the employment at the time of the injury must be
considered.
This Board will not narrowly construe ‘adjoining
area” to restrict the situs of an injury to an area
immediately adjacent to navigable waters. Adkins v.
I.T.0. Corp., 1 BRBS 199, BRB No. 74-123 (Novem-
ber 29, 1974). Here, the office was directly related
to ship-repairing and was an integral part thereof.
To hold otherwise weuld imply that the claimant,
found to be an employee within the definition of
Section 2(3) of the Act at the time of his injury,
would be covered by the Act for only a part of the
employment during his working shift. The Board
finds, therefore, that the claimant is entitled to cov-
erage under the Act.
The Director further alleges that the administra-
tive law judge erred in his computation of the amount
of time lost by the claimant as a result of the injury.
The Director argues that the claimant was working
a five day work week, not a seven day work week as
found by the administrative law judge. The Board
does not decide this matter but directs that such be
considered and resolved by the administrative law
judge.
The decision and order appealed from is reversed
and the case is remanded to the Office of the Chief
Administrative Law Judge for the appropriate entry
of an award of compensation under the Act.
We Concur:
Dated this 31st day
of January, 1975
36a
RALPH M. HARTMAN
Ralph M. Hartman, Member
RUTH V. WASHINGTON
Ruth V. Washington, Chairperson
JULIUS MILLER
Julius Miller, Member
37a
APPENDIX D
CASE NO. 74-LHCA-58
[FORMERLY 6-12085]
In the matter of
HERBERT L. PERDUE, CLAIMANT
vs.
JACKSONVILLE SHIPYARDS, INC., EMPLOYER
AETNA CASUALTY & SURETY COMPANY, CARRIER
Before: EDWIN S. BERNSTEIN
Administrative Law Judge
DECISION AND ORDER
Pursuant to the Longshoremen’s and Harbor Work-
ers’ Compensation Act, 33 U.S.C. 901 et seg. (“the
Act”), a hearing of the above matter was held before
me in Jacksonville, Florida, on May 21, 1974. Claim-
ant elected to appear without counsel and represented
himself. The Employer and Carrier (‘‘Respondents’”’)
were represented by counsel. Both parties were af-
forded a full opportunity to adduce evidence, to call,
examine and cross-examine witnesses, and to submit
briefs and proposed findings. The parties stipulated
to facts. Claimant was the only witness. Upon the
record and my study of the applicable law, I make
the following determinations and order.
38a
Findings of Fact
In accordance with the stipulation of the parties,
I find the applicable facts to be:
1. On February 2, 1973, Claimant was employed
as a shipfitter by Jacksonville Shipyards, Inc. On
that day he performed repair work aboard the USS
Roosevelt, an aircraft carrier, which was berthed at
Mayport Naval Station in Jacksonville, Florida. His
working hours were from 7 a.m. to 7 p.m. After
completing work on the ship, he was transported from
the pier by a bus under the control of the Employer
to an office maintained by the Employer where he
would “punch out” on a time clock at the end of his
shift. While alighting from the bus near the office,
he stepped onto an unlevel portion of ground, fell,
and injured his left knee. The place where the in-
jury occurred was located at Mayport Naval Station
but was approximately 500 yards from the nearest
body of water and approximately one mile from the
USS Roosevelt where Claimant had been working.
2. The Respondents contend that the injury is
covered by the Florida State Workmen’s Compensa-
tion Act and not by the Longshoremen’s and Harbor
Workers’ Compensation Act. Claimant disputes this
contention. Whether or not this claim is within the
jurisdiction of the Act is the sole issue in this case.
3. The parties agree and I find:
(a) Asa result of the accident, Claimant was tem-
porarily totally disabled for 12-2/7 weeks after the
accident and sustained a permanent partial injury
equal to a 5% scheduled loss of one leg.
39a
(b) Claimant is entitled to be paid $60 per week
under the State Act and $100 per week under the
Federal Act.
(c) Respondents have paid compensation to Claim-
ant as follows under the State Act:
(1) 12-2/7 weeks of temporary total
disability payments at $66 per
week $ 818.40
(2) For 5% loss of a leg (loss of
leg = 200 weeks) or 10 weeks at
$66 per week 660.00
$1478.40
(d) Should the Federal Act apply, Claimant must
be compensated as follows:
(1) 12-2/7 weeks of temporary total
disability payments at $100 per
week $1228.60
(2) For 5% loss of a leg (loss of
leg = 288 weeks) or 14.4 weeks
at $100 per week 1440.00
$2668.60
(e) Should the Federal Act apply, the Respond-
ents will owe to Claimant the following additional
amounts:
(1) For temporary total disability $ 410.20
(2) For permanent partial disability 780.00
$1190.20
40a
(f) The Respondents have paid all of Claimant’s
medical and hospital bills and Claimant makes claim
for no other sum.
Conclusion of Law
Claimant is not entitled to receive compensation
benefits under the Longshoremen’s and Harbor Work-
ers’ Compensation Act because his injury did not
occur upon the navigable waters of the United States
as required by Section 3(a) of the Act and therefcre
this claim is not within the jurisdiction of the Act.
Opinion
Section 3(a) reads in applicable part:
Compensation shall be payable under this Act in
respect of disability or death of an employee, but
only if the disability or death results from an
injury occurring upon the navigable waters of
the United States (including any adjoining pier,
wharf, dry dock, terminal, building way, marine
railway, or other adjoining area customarily
used by an employer in loading, unloading, re-
pairing, or building a vessel).
The underlined language was added by the amend-
ments to the Act which became effective on November
26, 1972. What is meant by the term “navigable
waters” as expanded by the amendment is not pat-
ently clear. In order to gain some insight into the
problems faced in this area, it will be helpful to re-
view the background of this language which has
been the subject of numerous decisions by the United
coe te ees i ln Ae ee REE wee ee
ea ate
Se ne
4la
States Supreme Court and other Federal Courts’
and several fine law review discussions.’
State Workmen’s Compensation Laws began de-
veloping in the early twentieth century. One of the
first statutes to be enacted was the New York Act
of 1910. Other states rapidly followed suit and by
1920 all but eight states had adopted compensation
statutes. In 1917, the Supreme Court held in Sowth-
ern Pacific Co. v. Jensen, supra, that the New York
State Workmen’s Compensation Act could not be con-
stitutionaly applied to a stevedore who was injured
while unloading cargo aboard a ship docked at a New
York pier. The court held that the stevedore’s work
was maritime in nature; that exclusive jurisdiction
1Important decisions with respect to this section include
Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917) ; Knicker-
bocker Ice Co. v. Stewart, 253 U.S. 149 (1920) ; Washington
v. W. C. Dawson Co., 264 U.S. 219 (1924) ; Swanson v. Marra
Bros., Inc., 328 U.S. 1 (1946) ; Parker v. Motor Boat Sales,
Inc., 314 U.S. 244 (1941) ; Davis v. Department of Labor, 317
U.S. 249 (1942) ; Calbeck v. Travelers Insurance Co., 370 U.S.
114 (1962) ; Michigan Mutual Liability Co. v. Arrien, 344 F.2d
640 (2d Cir. 1965); Travelers Insurance Co. v. McManigal,
189 F.2d 949 (1944); Travelers Insurance Co. v. Branham,
136 F.2d 873 (1948); Minnie v. Port Huron Terminal Co.,
295 U.S. 647 (1935); Marine Stevedoring Corp. v. Oosting,
398 F.2d 900 (1968) ; Nacirema Operating Co., Inc. v. John-
son, 396 U.S. 212 (1969) ; T. Smith & Son, Inc. v. Taylor, 276
U.S. 179 (1928).
2 Larson, The Conflict of Laws Problem Between the Long-
shoremen’s Act and State Workmen’s Compensation Acts, 45,
Southern California Law Review, 699 (1972) ; Smith, On the
Waterfront at the Piers Edge; Longshoremen’s and Harbor
Workers’ Compensation Act, 56 Cornell Law Review 114
(1979).
42a
for all civil maritime cases was vested in the Fed-
eral District Courts; that the constitution vested this
power within the Federal Government to promote
uniformity in maritime matters; that freedom of
navigation between the states would be impaired by
state regulation; and, as a result, the New York
legislature exceeded its authority in attempting to
extend its workmen’s compensation statute to steve-
dores working aboard ships.
The Jensen decision left many thousands of long-
shoremen without workmen’s compensation remedies.
Within five months, Congress enacted a law which
attempted to give to injured maritime employees,
“the rights and remedies under the workmen’s com-
» pensation law of any State.”* This act was declared
unconstitutional in Knickerbocker Ice Co. v. Stewart,
supra. The Supreme Court held that the Constitution
intended to grant direct control over maritime com-
merce to the Federal Government and Congress could
not delegate this power to the states. In 1922, Con-
gress again attempted to enable maritime employees
to be covered under state statutes but two years later
in Washington v. W. C. Dawson Co., supra, the Su-
preme Court held that Congress had the power to
“permit enactment of a general employers’ liability
law or general provisions for compensating injured
employees; but it may not be delegated to the several
states.” These decisions left Congress with no alter-
native but to enact a federal workmen’s compensa-
* 40 Stat. 395.
nb ET Ll ee ATES cer at
ie eae € nt wa 2
43a
tion statute. Enter the Longshoremen’s and Harbor
Workers’ Compensation Act of 1927. The original
language of Section 3(a) covered injuries upon navi-
gable waters of the United States and specifically
included dry docks. However recovery was condi-
tioned upon a lack of recovery under state laws.*
The result of this language was to cause many in-
equities and anomalies. A longshoreman would be
covered while he worked on a ship but the moment he
stepped onto a dock, even though he performed the
same work on land, he walked out of the federal act
and into state coverage. The same employee could
walk in and out of the federal act hundreds of times
a day. Unlike most other compensation provisions,
coverage was not merely based upon whether the
work was in the course of the employee’s employment.
If he happened to be working on a ship or over
navigable waters, he was covered by the federal act;
if he happened to be working on land, he was cov-
ered by a state act even though in both cases he
worked for the same employer and performed the
same work in the course of his employment. The
*“Compensation shall be payable under this Act in respect
of disability or death of an employee, but only if the disability
or death results from an injury occurring upon the navigable
waters of the United States (including any dry dock) and if
recovery for the disability or death through workmen’s com-
pensation proceedings may not validly be provided by State
law.”
44a
Taylor’ and Minnie® cases graphically demonstrate
the inequities of this rule. In the Taylor case, the
injured longshoreman was knocked from the dock
into navigable water by a crane operated from a
vessel. He was held to be covered under the state
act because the impact that caused his injury oc-
curred on land even though he landed on water. In
the Minnie case the facts were reversed. The long-
shoreman was struck by a crane operated from land
and was knocked from the deck of the vessel onto land.
Since the blow that injured him occurred at sea even
though he was knocked onto land, the Supreme Court
held that he was covered by the federal act.
No small amount of confusion ensued as to whether
at the time that he was injured, the employee was
located at a point in which the federal act would ap-
ply or the state act would apply. In Davis v. Depart-
ment of Labor, supra, Justice Black stated that there
existed a twilight zone, “that shadowy area within
which, at some undefined and undefinable point, state
laws can validly provide compensation” and that deci-
sions as to whether federal or state law applied would
have to be made on a case by case basis in an effort
to balance state and federal interests. In Calbeck v.
Travelers Insurance Company, supra, the court at-
tempted to clarify the confusion by holding that Fed-
eral jurisdiction does not depend upon the fact that
the employee is not covered by a state act. The effect
was to create a zone of concurrent jurisdiction in
°T. Smith & Son, Inc. v. Taylor, supra.
* Minnie Vv. Port Huron Terminal Co., supra.
45a
which either a state act or the federal act could pro-
vide coverage.
Although injuries that occurred on land were not
covered by the federal act, injuries that occurred on
dry docks were covered even as in Travelers Insur-
ance Co. v. Branham, supra, when the dry dock was
only 5% completed at the time of the accident. In
attempting to construe the act liberally the courts
have held that injuries on barges were covered even
as in Holland v. Harrison Bros. Dry Dock and Repair
Yard, Inc., 306 F.2d 369 (5th Cir. 1962) where the
barge was on a marine railway and the employee
had both feet on dry land. In Swanson v. Marra
Bros., Inc., supra, a longshoreman who was working
on a pier loading a ship alongside was struck and in-
jured by a life raft that fell from the vessel. The
court denied relief under the Jones Act and indicated
that the claim would also have been dismissed if it
had been brought under the Longshoremen’s Act since
it occurred on shore and not over navigable waters.
In Michigan Mutual Liability Co. v. Arrien, supra,
a stevedore was working on a “skid,” a removable
wooden platform extending over water between the
vessel and wharf when he was hit by a barrel that
fell from the ship that he was helping to unload.
The court held that the federal act was intended to
cover injuries on skids or gangplanks since these were
over navigable waters. :
The last important decision was Nacirema Operat-
ing Co., Inc. v. Johnson, supra. That case was de-
cided by the United States Court of Appeals, Fourth
46a
Circuit, under the title of Marine Stevedoring Cor-
poration v. Oosting, supra, in 1969. Judge Sobeloff
speaking for the majority concluded that Congress
desired the act to be status oriented, “reaching all
injuries sustained by longshoremen in the course of
their employment.” He held that this was true re-
gardless of the situs of the injury. In a vigorous dis-
sent Chief Judge Haynsworth stated that although
the Act was intended to be liberally construed “to
achieve its purpose but not pervert it.” He concluded
that jurisdiction of the Act depended upon where the
injury occurred even though this created the apparent
inequity of having the same employee who works part
of the time on the ship and part of the time on the
dock passing from one jurisdiction to another many
times during the same day.
The Supreme Court heard the case under the title
of Nacirema Operating Co., Inc. v. Johnson and Jus-
tice White writing for the majority, disagreed with
the lower court. The Supreme Court upheld the tra-
ditional view that injuries over water are compensable
and those over the land are not within the jurisdic-
tion of this act. It further held that wharfs and
piers permanently affixed to land are extensions of
land and injuries which occur on such structures are
not within the jurisdiction of the longshore act.
The artificial distinction between whether the long-
shoreman who is doing the same work happens to be
standing on land or over water at the time that he
was injured created obvious inequities. It has been
argued that the men are exposed to the same dangers
hn tlt seta me
47a
doing the same work and therefore should receive the
same coverage and that not knowing whether the
state or the federal law applies presents confusion.
Many examples can be cited to show how ludicrous
the situation can be. One that comes to mind is that
two employees carrying a wooden beam, one employee
being on the ship and the other on shore, when the
beam is struck by a falling object and in turn strikes
and injures both longshoremen. Although their in-
juries occurred as a result of the same incident as a
result of their exposure to harm from the same dan-
ger, the employee who was on the ship would be over
navigable waters and would receive benefits under the
federal act while the employee who by fortuitous cir-
cumstances was standing on land would be covered by
the state act. In most cases, state benefits are sub-
stantially less than those of the federal act. Writing
about inequitable situations in 1970 in the law review
article referred to in footnote 2, Professor Smith
stated that, “the nation’s 100,000 longshoremen and
harbor workers continue to be the victims of two
pernicious forms of neglect—judicial irresponsibility
and legislative passivity.”
But Congress was not passive for long. In 1971,
Congressional hearings began with regard to pro-
posed amendments and the Act was amended effec-
tive November 26, 1972. The amendments were
sweeping. Employees benefits were increased. The
amended Act provided that hearings would be con-
ducted in accordance with the Administrative Pro-
cedure Act and this resulted in longshore hearings
48a
before administrative law judges for the first time.
A controversial unseeworthiness third party remedy
was eliminated. And with respect to the issues in
point, language was added to Section 3(a) to expand
the definition of navigable waters to include areas on
land.
With this background in focus and with cognizance
of the confusion and past problems with respect to
coverage under Section 3({a) of the Act, the question
presented is whether in amending that provision Con-
gress intended to amplify the Act’s coverage to in-
clude all employees whose injuries arose out of and
occurred in the course of their employment as long-
shoremen regardless of where they were injured.
Section 2 of the amended Act contained an ex-
panded definition of covered employees. It specifically
included ship repairmen, which was Mr. Perdue’s
occupation. Therefore, there is no question that
Claimant was an employee covered by the Act. Simi-
larly, there is no question that this Employer falls
within Section 2’s definition of an “employer.”
There is also no question that Claimant’s injury
arose out of and was within the course of his em-
ployment. He was on company time. He was on his
way to “punch out.” He was transported in a com-
pany vehicle for the convenience of his Employer to
“punch out” at that particular office. Thus, if cover-
age is grounded upon a covered employee, employed
by a covered employer whose injury arose out of and
occurred within the course of his employment, clearly
Claimant falls within the Act’s jurisdiction.
49a
Despite this, I do not believe that an analysis of
the Act’s language or its legislative history upholds
the conclusion that Congress intended to ground cov-
erage upon the sole criterion of whether the injury
arose out of and occurred in the course of a covered
worker’s employment. I am aware that this is a
humanitarian statute and that the decisions are
legion that it should be liberally construed. However
liberal construction does not mean blinding oneself
to the realities of the facts and the law.
In reaching my conclusion, I have also considered
the views of the Solicitor of the United States De-
partment of Labor.’ I fully appreciate that during
the long history of the Act many inequities were
caused by a longshoreman walking in and out of the
Act’s coverage and that an interpretation that the
Act still does not cover all longshoremen whose in-
juries arose out of and in the course of employment
will lead to cases in which the same employee is cov-
ered by a state act on some occasions and by the
federal act at other times.
I have also taken into consideration Proposed Rules
of the Department of Labor issued on May 17, 1974
and published in Vol. 39, No. 101 of the Federal
Register on May 23, 1974 which urge that the Act
be interpreted liberally.
* Although the Solicitor did not submit a brief in this case,
in a case involving a similar issue, O’Leary v. Southeast
Seattle Stevedoring Corp. and Liberty Mutual Insurance Com-
pany, the Solicitor filed a brief covering essentially the same
issue.
50a
I did not find the legislative history which I have
reviewed in detail to be determinative of Congress’
intent with respect to this section.
The Senate Committee on Labor and Public Wel-
fare set forth its rationale for expanded provisions
as follows:
Thus, coverage of the present Act stops at the
water’s edge; injuries occurring on land are cov-
ered by State Workmen’s Compensation laws.
The result is a disparity in benefits payable for
death or disability for the same type of injury
depending on which side of the water’s edge and
in which State the accident occurs.
* * * * *
The Committee believes that the compensation
payable to a longshoreman or a ship repairman
or builder should not depend on the fortuitous
circumstance whether the injury occurred on
land or over water. Accordingly, the bill would
amend the Act to provide coverage of longshore-
men, harbor workers, ship repairmen, ship
builders, shipbreakers, and other employees en-
gaged in maritime employment if the injury oc-
curred either upon the navigable waters of the
United States or any adjoining pier, wharf, dry
dock, terminal, building way, marine railway, or
other area adjoining such navigable waters cus-
tomarily used by an employer in loading, un-
loading, repairing, or building a vessel.
The intent of the Committee is to permit a uni-
form compensation system to apply to employees
who would otherwise be covered by this Act for
part of their activity. To take a typical example,
MA Re Ree ee + re
ater oe
5la
cargo, whether in break bulk or containerized
form, is typically unloaded from the ship and
immediately transported to a storage or holding
area on the pier, wharf, or terminal adjoining
navigable waters. The employees who perform
this work would be covered under the bill for
injuries sustained by them over the navigable
waters or on the adjoining land area. The Com-
mittee does not intend to cover employees who
are not engaged in loading, unloading, repairing,
or building a vessel, just because they are in-
jured in an area adjoining navigable waters
used for such activity. Thus, employees whose
responsibility is only to pick up stored cargo for
further trans-shipment would not be covered,
nor would purely clerical employees whose jobs
do not require them to participate in loading or
unloading of cargo. However, checkers, for ex-
ample, who were directly involved in the unload-
ing or loading functions are covered for the new
amendment.” S. Rep. No. 92-1125, 92d Cong.,
2d Sess. (1972), pp. 12, 13 (Legislative History,
supra, pp. 74, 75).
Thus, the legislative history, although addressing
itself to some past inequities does not cover the ques-
tion of whether all injuries to longshoremen, regard-
less of where they occurred, are compensable. If the
Act now covers all specified employees who are in-
jured in the course of their employment, then a long-
shoreman who is dispatched by his employer to buy
nails at a hardware store miles from the pier would
be covered by the Act for injuries that he sustained
52a
in an automobile accident on a highway during this
mission. I do not believe that this was the intent of
Congress. I believe that the uniformity that was re-
ferred to in the legislative history—the uniformity
that Congress intended to achieve—was uniformity
of coverage of longshoremen and other defined em-
ployees while they were actively engaged in pursuing
their normal duties. Longshore work has been long
considered to be an extremely hazardous form of em-
ployment.* Obviously Congress did not feel that an
employee who was loading or unloading a vessel was
exposed to less hazards whi. he stood on land than
when he stood on a ship. The hazards and risks of
longshoring activities were the same; and I think
* As has been noted in many: decisions, including most re-
cently Victory Carriers v. Law, 404 U.S. 217, 92 S.Ct. 418
(1971), stevedoring is one of the most accident-prone profes-
sions in American industry. According to the National
Academy of Sciences-National Research Council, Maritime
Cargo Transportation Conference, Longshore Safety Survey
22-23 (1956) hazardous industries have the following accident
frequency rates:
I iiss ccsccmstiiteibencees 92.3 per million man
hours worked
IT IEE Tac Es . 143
Structural Steel Erection... 47.5
Saw and Planing Mills ........ 42.0
General Building 37.0
See also New York Shipping Assn., Safety Bureau, Annual
Accidents (1965).
hh re — te all
a a a A So NU oa a a a
53a
that the hazards of longshore work were those for
which Congress intended to provide coverage under
the Act.
Although the definition of navigable waters in
Section 3 has been expanded greatly, nevertheless the
provision sets forth specified areas. The area at
which this Claimant was injured does not fall within
these areas. I attach considerable weight to the use
of the word “adjoining,” in Section 3(a). This word
has a clear and precise meaning. Bouvier’s Law
Dictionary, 3rd Edition (1914), contains the follow-
ing definition:
The word in its etymological sense, means touch-
ing or contiguous, as distinguished from lying
near or adjacent.
Black’s Law Dictionary, Revised Fourth Edition
(1968), contains a similar definition:
The word in its etymological sense means touch-
ing or contiguous, as distinguished from lying
near to or adjacent. . .. To be in contact with;
to abut upon. . . . And the same meaning has
been given to it when used in statutes.
On the same page of each of these dictionaries is
the word “adjacent.” That word has been defined as
“Lying near or close to; sometimes contiguous; neigh-
boring” in Black’s Law Dictionary, supra, and as
“Next to, or near, neighboring” in Bowvier’s Law
Dictionary, supra.
54a
That Congress, which is composed of many fine
lawyers, with excellent legal assistance at its disposal
and considerable expertise in the use of the English
language, chose to use the word “adjoining” rather
than “adjacent” must be interpreted to indicate that
it intended that the defined areas would touch, be
contiguous to or abut upon navigable waters.
Claimant clearly was not injured on a pier, wharf,
dry dock, building way, or marine railway. Was he
injured in an “other adjoining area customarily used
by an employer in loading, unloading, repairing, or
building a vessel”? Even if the office that the em-
ployer used for checking out his employees could, by
liberal definition, be defined as an “area customarily
used for loading, unloading, repairing or building a
vessel” by arguing that the process of “punching out”
was intricately intertwined with the tasks of loading
and unloading, ete. of vessels, thereby making the
office fall within a defined area, (1) the office was
not an adjoining area since approximately one mile
of land which belonged to the naval installation
spanned the distance between the office and the nor-
mal loading area, (2) Claimant was not injured
within the confines of the office—he was injured on
this land which, although part of the naval station
was in no way used for loading, unloading, repair-
ing or building a vessel.
It can be argued that the use of the word “includ-
ing,” in the beginning of the parenthetical material,
supports a conclusion that not only can the specified
areas be covered but all other areas in which the em-
55a
ployee sustained an injury which arose out of and
occurred in the course of his employment. I do not
believe that this is the correct interpretation. Cer-
tainly the use of “including” in legislation means
that more than the specified language is covered.
However, ejusdem generis principle of statutory con-
struction would operate to provide that if the area
was not a specified area it would be another adjoin-
ing area of the type that would be used for the long-
shoreman’s work in connection with the loading, un-
loading, repairing or building of a vessel.
One specified term to which careful scrutiny must
be given is “terminal.” Can it be concluded that
“terminal” includes the entire facility or installation
on which longshore work is performed or is the term
to be defined more restrictively? Webster’s Third
New International Dictionary, S&C Merriam Co.,
1961, defines the word as:
Either end of a carrier line (as a railroad, truck-
ing or shipping line, or airline) with classifying
yards, dock and lighterage facilities, manage-
ment offices, storage sheds and freight and pas-
senger stations.
As applied to railroads the term has usually been
interpreted to indicate:
... a place provided by or for common carriers,
whether by land, water, or air, for the purpose
of receiving and discharging passengers or for
the purpose of receiving and delivering freight,
including buildings and structures incidental to
those purposes, such as shelters or enclosures for
56a
the convenience and comfort of passengers or for
the care and safety of freight pending shipment
and delivery to consignees or connecting carriers,
and does not include storage warehouses wherein
space is to be rented to customers for definite
periods of time for the permanent storage of
goods, wares, and merchandise until used or dis-
posed of in the usual course of business. Beazley
v. DeKalb County, 210 Ga. 41, 77 S.E.2d 740
(1953).°
These definitions lead to the conclusion that as used
in Section 3(a), “terminal” means that area near the
docks that has to do with the loading, unloading, re-
ceipt or shipment of cargo but does not extend to the
entire installation. A military installation such as
the Mayport Naval Station or a large industrial shore-
side complex can extend for many, many miles, much
of which may have nothing to do with loading, un-
- loading or shipping of cargo. Obviously this other
area is not a terminal within the generally accepted
definitions of the term and it is a basic canon of
statutory interpretation that language will be deemed
to be used in statutes in its ordinary sense in the
absence of a contrary indication by the legislature.
The location of the word, “terminal” in the section
also belies interpretations of grandeur. It is sand-
wiched between specifically defined, limited areas,
coming after “pier, wharf, dry dock” and before
“building way, marine railway.” If “terminal’’ in-
® This interpretation concurs with the definition for railroad
terminals in 74 CJS Railroads, §1, p. 332.
57a
cluded the entire facility, it would not only logically
be more appropriately set at the end of the phrase,
and would probably also render all other specific
terms superfluous.
Finally, by applying the rule of ejusdem generis in
reverse, a more limited interpretation of the word
“terminal” gains further support. This principle is
that where a general phrase follows specifically listed
words, language in the general phrase helps to de-
fine the meaning of specified terms.
Thus in United States v. Standard Brewery, 251
U.S. 210 (1920) Mr. Justice Day rejected a Govern-
ment argument that the statutory language, “no
grains, cereals, fruit, or other good product shall be
used in the manufacture or production of beer, wine, or
other intoxicating malt or vinous liquor for beverage
purposes” applied to all wine and beer whether intoxi-
cating or not. The Court held:
The prohibitions extend to the use of food prod-
ucts for making “beer, wine, or other intoxicat-
ing malt or vinous liquors for beverage pur-
poses.” These provisions are of plain import and
are aimed only at intoxicating beverages. It is
elementary that all of the words used in a legis-
lative act are to be given force and meaning
(Washington Market Co. v. Hoffman, 101 U.S.
112, 115, 25 L. ed. 782, 783); and of course the
qualifying words “other intoxicating” in this
act cannot be rejected. It is not to be assumed
that Congress had no purpose in inserting them,
or that it did so without intending that they
should be given due force and effect.
58a
Applying this rule to the general language in Sec-
tion 3(a) of the Act—“. . . or other adjoining area
customarily used by an employer in loading, unload-
ing, repairing, or building a vessel . . .”—the defini-
tion of “terminal” would require that the area de-
fined as a terminal area be customarily used for
loading, unloading, building, or repairing a vessel.
This is consistent with the definition in Beazley v.
DeKalb County, supra, and Corpus Juris Secundum
supra, which exclude from the meaning of the word
such areas as storage warehouses used for permanent
storage of goods. Mayport Naval Station is a mili-
tary installation which includes areas such as the
locus of Claimant’s injury which have nothing to do
with loading, unloading, building or repairing vessels.
Such areas are not terminal areas within the mean-
ing of Section 3(a).
Also, I cannot help but conclude that had Congress
intended to cover all injuries that arose out of and
occurred in the course of a longshoreman’s employ-
ment it could have used such words or similar lan-
guage rather than the words actually employed. Thus
in the Outer Continental Shelf Land Act, 43 U.S.C.
1333(b), Congress imposed jurisdiction in “cases and
controversy arising out of or in connection with any
operations conducted on the Outer Continental Shelf
for the purpose of exploring for, developing, remov-
ing or transporting by pipeline natural resources, or
involving the rights to the natural resources of the
sub-soil and sea bed of the Outer Continental
Shelf... .”
pita tain
ita
59a
In the Federal Employers Liability Act, 45 U.S.C.
51, Congress enacted the following language:
“Every common carrier . . . shall be liable for
damages to any person suffering injury while
he is employed by such carrier in such com-
merce. ...”
It is unnecessary to recount more instances. The
point is quite clear. Congress is capable of saying
what it means. The fact that language such as aris-
ing out of and in the course of employment was not
used as the sole criterion indicates an intent to provide
for a more restrictive coverage. This can be ex-
plained by the fact that a longshoreman working at
his normal duties is exposed to considerable hazards
and the hazards do not necessarily change whether
he is over water or on land. However, when the same
employee does not actively engage in loading, un-
loading, repairing a vessel, etc., the hazards are sub-
stantially reduced. Thus, a longshoreman such as
Claimant who injures himself by stepping into a de-
pression in the street is no less vulnerable than any
other employee who happens to step into such a
depression. Similarly a longshoreman who is injured
while driving a car on an errand for his employer is
exposed to no greater risks than a nonlongshoring em-
ployee who is injured in an automobile accident.
Whether or not it would have been more desirable
from the point of view of simplicty or fairness to
provide coverage to longshoremen regardless uf where
they happened to be when injured is not the question.
60a
The issue is whether this can be read into Section 3
(a)’s language on the basis of legislative intent, logic
and the meaning of the language employed. As has
been indicated, the application of these criteria leads
to the inescapable conclusion that the area in which
this Claimant was injured was not an area used for
loading, unloading, repairing or building a vessel as
specified and described in Section 3(a). Therefore
this claim is not within the jurisdiction of and not
compensable under the Longshoremen’s and Harbor
Workers’ Compensation Act.
Order
For the reasons set forth above, this claim is
denied.
Edwin S. Bernstein
EDWIN S. BERNSTEIN
ADMINISTRATIVE LAW JUDGE
Dated: September 19, 1974
Washington, D.C.
a
ee ere
6la
APPENDIX E
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
OCTOBER TERM, 1978
No. 75-1659
Docket No. BRB 74-200
JACKSONVILLE SHIPYARDS, INC., AND
AETNA CASUALTY AND SURETY COMPANY, PETITIONERS
versus
HERBERT L. PERDUE AND DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
U.S. DEPARTMENT OF LABOR, RESPONDENTS
Petition for Review of an Order of the
Benefits Review Board
JUDGMENT
Before:
TUTTLE, THORNBERRY AND TJOFLAT, Circuit Judges.*
This cause came on to be reconsidered on remand
following the vacation of this Court’s judgment by
* Judge Thornberry was a member of the panel that heard
oral arguments but due to illness did not participate in this
decision. 28 U.S.C. § 46(d) (1970).
62a
the Supreme Court of the United States; and on
further briefs of the parties;
ON CONSIDERATION WHEREOF, It is now
here ordered and adjudged that the original decision
of this Court entered on September 27, 1976 is re-
affirmed; and that the order of the Benefits Review
Board appealed from is reversed;
It is further ordered that respondents pay to peti-
tioners, the costs on appeal to be taxed by the Clerk of
this Court.
June 16, 1978
Issued as Mandate: SEP 7 1978
——
Pe ae
63a
APPENDIX F
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
OFFICE OF THE CLERK
New Orleans, La., August 30, 1978.
No. 75-1659—Jacksonville Shipyards, Inc. and Aetna
Casualty & Surety Company v. Herbert L. Per-
due and Director, Office of Workers’ Compen-
sation Programs, United States Department of
Labor.
DEAR COUNSEL: This is to advise that an order has
this day been entered denying the petition ( ) for
rehearing,** and no member of the panel nor Judge
in regular active service on the Court having re-
quested that the Court be polled on rehearing en
bane (Rule 35, Federal Rules of Appellate Procedure;
Local Fifth Circuit Rule 12) the petition( ) for re-
hearing en banc has also been denied.
See Rule 41, Federal Rules of Appellate Procedure
for issuance and stay of the mandate.
Very truly yours,
EDWARD W. WADSWORTH,
Clerk.
BRENDA M. HAUCK,
Deputy Clerk.
W OU. S. GOVERNMENT PRINTING OFFICE; 1979 285257 281
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.