Petition — Perini North River Associates v. Fusco

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Supreme Court, U. &

iq FILED

29-759 i

tert! 19/9

IN THE

MISHARL RODAK, JR., CLERK

Supreme Court of the United States

Octoser Term, 1979

Prertnr Norro River Associates and

Hartrorp AccIDENT AND INDEMNITY Co.,

Petitioners,

—V

Ronaup Fusco,

Respondent,

—and—

BerNARD SULLIVAN,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

FiscHER BRoTHERS

Wnuu1am F. Fiscuer, Jr.

Attorneys for Petitioners

Perini North River Associates

and Hartford Accident and

Indemnity Co.

90 John Street

New York, New York 10038

(212) 267-6456

Of Counsel:

Martin KRuUTZEL

November 14, 1979

TABLE OF CONTENTS

PAGE

oe, EMS LSE EEO ees 2

GRE ot SE RA 2

Questions Presented .................-..-.-..--.-cse--eorscscscscseeeensenenenes 3

Statutory Provision Involved. ....................-c-cssc-cseeeeeeeeeees 3

I on cccentcenncnsesevnencveveneenesconsece 3

Reasons for Granting the Writ ...............-..-.-----:-1-ee 6

I. By Adopting a Geographical Interpretation of

the Phrase “Maritime Employment” the Circuit

Court of Appeals Has Ignored the Clear Lan-

guage and Intent of 33 U.S.C. §902(3) -............--- 7

Il. The Second Circuit’s Geographical Interpreta-

tion of “Maritime Employment” Conflicts With

the Decisions of Five Other Circuit Courts

Which Have Applied an Occupational Status

I ool lesccsnnseenenssncenrecsescercensene 10

Ill. The Second Circuit’s Conclusion That All Work-

ers Who Would Have Been Covered Under the

1927 Act Are Automatically Covered After the

1972 Amendments Addresses an Issue Explicitly

Left Open by This Court and Directly Conflicts

With the Decision of the Ninth Circuit ................ 15

IV. The Circuit Court’s Construction of 33 U.S.C.

§902(3) Creates Confusion, Ambiguity and Un-

certainty in the Basic Administration of the Act 17

EE 91

TABLE OF APPENDICES

PAGE

AppenpDIx A—

Opinion of the United States Court of Appeals

for the Second Circtiit .....0.....-......-.-cececcersencerssecoes Al

Appenpix B—

Decision and Order of the United States Court of

Appeals for the Second Circuit Denying Rehear-

ing & Rehearing En Bane ............--.-.------------e0000+ A24

ApPENDIx C—

Decision and Order of the Benefits Review Board

of the Department of Labor, together with the

dissenting opinion of Member Miller .................. A28

Apprenpix D—

Decision and Order of the Administrative Law

Judge in the case of Ronald Fusco ....................-. A79

AppenpDIx K—

Decision and Order of the Administrative Law

Judge in the case of Bernard Sullivan ................ A88

AppenpDIx F—

Statutory Provision Involved .....................:--:ces-ese00 A95

ili

TABLE OF AUTHORITIES

CASES: PAGE

Abrahamsen v. Perini North River Associates, 9 BRBS

1041 (1979) ; appeal docketed, No. 79-4081 (2nd Cir.,

April 218, 1979) ......01-----.c.ccseseoresevensososenesenseseseonnenenssesneesee 6n

Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137

CDT Dim. TTB) ances icscsenscnceenonstrnsesdnnssntonncsneanensenesaccssenens 12n

Christiansen v. Perini North River Associates, No. 78-

LHCA 450, BRBS —— (ALJ 1979), appeal

docketed, No. 79-424 (BRB, June 29, 1979) ............ 7n

Conti v. Norfolk and Western Railway Co., 566 F.2d 890

CR Ce TOT) acca cacscsnneceencnceneesvnscscnconsnasornocsnpsanpeasanatans 14

Dantes v. Western Foundation Corp., 10 BRBS 541

(1979), appeal docketed, No. 79-1358 (1st Cir., July

BE, TOI occa vines acecsassiseteonnnntntectensnittnissesnccensnatenannnemantion 6n

Domenico v. Crimmins-Vacar Joint Venture, 9 BRBS

668 (1979), appeal docketed, No. 79-4069 (2nd Cir.,

a TE FOI scr ntiassecsenesoveveseesenivtasnoninsoeeenitciwnitamnimttion 6n

Dravo Corp. v. Mazin, 545 F.2d 374 (3rd Cir. 1976),

cert, denied, 433 U.S. 908 (1977) .............----ccscssesesceesees 12n

Ernst & Ernst v. Hochfelder, 425 U.S. 185, 199 n.19

CI cecasccdccctneesccinenseseatncencasemeennmeiionnatapemnmmasitgagneintarsts 9n

Fusco v. Perini North River Assoc., 601 F.2d 659 (2nd

TN acca ater cooatieencnnneteoninonccencininns 5, 8, 15, 18, 19

1.7.0. Corp. of Baltimore v. Benefits Review Board,

529 F.2d 1080 (4th Cir. 1975), modified en banc on

other grounds, 542 F.2d 903 (4th Cir. 1976), vacated

and remanded sub nom., Adkins v. 1.7.0. Corp. of

Baltimore, 433 U.S. 904 (1977), rev’d on remand,

BS f Bh yy ee ee 14n

PAGE

Maher Terminals Inc. v. Farrell, 548 F.2d 476 (3rd Cir.

NTT) ccna nen nnaneennennneswnnsnnensnsereseenenecnemnenennneseemesnnsnensaseaae 12n

Matson v. Perini North River Associates, 9 BRBS 967

(1979), appeal docketed, No. 79-4085 (2nd Cir., April

SD | (|) nen nn En 6n

NLRB v. Coca Cola Bottling Co., 350 U.S. 264, 268

(nh. ae MEE ilar nk On

Northeast Marine Terminal Co. v. Caputo, 432 U.S.

DAD (UGTT) sn cnennsennscneccses serene passim

Pennsylvania R. R. Co. v. O’Rourke, 344 U.S. 334 (1953) 16

Robinson v. Perini North River Associates, No. 78-

LHCA-257, —— BRBS —— (ALJ 1979), appeal

docketed, No. 79-164 (BRB, February 21, 1979) ...... 6n

Ronald Fusco v. Perini North River Associates, Case

No. 76-LHCA-GRT qnnncnicccsomenaee 4

Sea-Land Service, Inc. v. Director, Office of Workers’

Compensation Programs, 540 F.2d 629 (3rd Cir.

WOTG) acacia nnicsanesneorensiiosnrsicnsiesanieeneaen enna 12, 13

Sedmak v. Perini North River Assoc., BRB Nos. 77-

896, 77-579, 77-579A, 78-129, 78-407 (November 30,

1978), reported in 9 BRBS 378, 386 (1978) .............. 16n

Stockman v. John T. Clark & Son of Boston, 539 F.2d

264 (1st Cir. 1976), cert. denied, 433 U.S. 908 (1977) 13

Bernard Sullivan v. Perini North River Associates,

Case Neo. 77-LaOASD —ccccceneceneeeeee 4

Walter Tantzen, Inc. v. Shaughnessy, 601 F.2d 670 (2d

Cir. 1979) 2... ae 17-18, 20

Thibodaux v. Atlantic Richfield Co., 580 F.2d 841 (5th

Cir., 1978), cert. denied, 99 S.Ct. 2820 (1979) ............ 13

PAGE

Weyerhauser Co. v. Gilmore, 528 F.2d 957 (9th Cir.

1975), cert. denied, 429 U.S. 868 (1976) ........ 11, 16, 17, 20

MISCELLANEOUS:

Larson, WorKMENS Compensation Law §2.20 (1971) 15n

Comment, The Longshoremen’s and Harbor Workers’

Compensation Act: Coverage after the 1972 Amend-

ments, 55 Tex. L. Rev. 99, 106, 107 (1976) ........ 8n, 9n, 17n

Note, Coverage Under the LHWCA Amendments of

1972: Developing A Practical Uniformly Applicable

Interpretation Of The Status Requirement, 18 Wm.

NE ik, TNT, TI CRUE ED wiscatcinsncvsencrsvenesnntsinsacemonsevenions 19n

S. Rep. No. 92-1125, 92d Cong., 2d Sess., 12-13 (1972)... 19n

H.R. Rep. No. 92-1441, 92d Cong., 2d Sess., 10-11 (1972) 19n

Note, Longshoremen, Longshoring Operations and

Maritime Employment: A Dual Test of Status After

Northeast Marine Terminal Co. v. Caputo, 64 Va.

Se cae os sds acon eeraieniiaanaalinnaes 13n

STATUTES:

Longshoremen’s and Harbor Workers’ Compensation

Act, 33 U.S.C. §901, et seq. (1970 ed. Supp. V 1975) ..passim

28 U.S.C. §1254(1)

In THE

Supreme Court of the United States

Octoser Term, 1979

; Seen

Pertnr Nortu River Associates and

Hartrorp ACCIDENT AND INDEMNITY Co.,

Petitioners,

a ea

Ronaup Fusco,

Respondent,

—and—

BERNARD SULLIVAN,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioners, Perini North River Associates and Hartford

Accident and Indeinnity Company respectfully pray that a

writ of certiorari issue to review the judgment and opinion

of the United States Court of Appeals for the Second Cir-

cuit entered on June 29, 1979. That decision reversed the

Benefits Review Board judgment dated November 30, 1978,

denying coverage under the Longshoremen’s and Harbor

Workers’ Compensation Act, 33 U.S.C. §901 et seg. (1970

ed. Supp. V 1975) and dismissed the Petition of the Direc-

tor, Office of Workers’ Compensation Programs for lack of

statutory standing.

Petitioners do not in this application seek a writ of

certiorari to review the ruling of the court below dismissing

the petition of the Director, Office of Workers’ Compensa-

tion Programs for lack of statutory standing.

Petitioners seek the issuance of a writ of certiorari only

to review the ruling of the court below on the issue of

coverage under the Act.

Opinions Below

The Opinion of the Court of Appeals (Appendix, herein-

after “App.”, A), is dated June 29, 1979 and reported at

601 F.2d 659. A timely Petition for Rehearing and Rehear-

ing En Bane was denied by Order dated August 21, 1979

(App. B). The Order is contained in the published opinion.

The decision of the Benefits Review Board of the Depart-

ment of Labor and dissenting opinion of Member Miller,

dated November 30, 1978 and January 19, 1979, respectively

(App. C) is reported at 9 BRBS 378.* The Administrative

Law Judge decision in the case of Ronald Fusco was filed

on December 28, 1977. (App. D). The Administrative Law

Judge decision in the case of Bernard Sullivan was filed

on August 26, 1977. (App. E).

Jurisdiction

The judgment of the Court of Appeals for the Second

Circuit was entered on June 29, 1979. On August 21, 1979,

the Second Circuit denied Petitioners’ timely Petition for

Rehearing and Rehearing En Banc.

The jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1).

*The Benefits Review Board Service (BRBS) is the unofficial

reporter of the Board’s decisions.

Questions Presented

(1) Whether the maritime employment requirement of

§902(3) of the Longshoremen’s and Harbor Workers’ Com-

pensation Act, as amended, 33 U.S.C. §901 et seq. requires

an occupational test of status to determine whether con-

struction workers are covered under the Act.

(2) Whether all workers who could have been covered

employees under the 1927 Longshoremen’s and Harbor

Workers’ Compensation Act are automatically covered

after the 1972 Amendments to the Act, solely by virtue of

their prior coverage.

Statutory Provision Involved

Section 902(3) of the Longshoremen’s and Harbor Work-

ers’ Compensation Act, as amended, 33 U.S.C. §902(3)

(1970 ed. & Supp. V) is set forth as Appendix F to this

Petition.

Statement of the Case

The case at bar involves two employees of Petitioners,

Perini North River Associates, who were injured in sepa-

rate accidents. Each accident occurred at the site of the

North River Pollution Control Project. Both employees

filed claims for benefits under the Longshoremen’s and

Harbor Workers’ Compensation Act, as amended 86 Stat.

1251, 33 U.S.C. $901, et seq. (1970 ed., Supp. V). Perini

controverted the claims, raising, inter alia, the issue of

coverage.

Separate Formal Hearings were held by Administrative

Law Judges. In the case of Ronald Fusco, the Adminis-

trative Law Judge held that the claim came within the

coverage provisions of the Act, and awarded benefits.

Ronald Fusco v. Perini North River Associates, Case No.

76-LHCA-927 (A79). An Administrative Law Judge re-

jected the claim of Bernard Sullivan, finding that his claim

was not properly subject to the provisions of the Act. Ber-

nard Sullivan yv. Perini North River Associates, Case No.

77-LHCA-85 (A88).

On appeal, the Benefits Review Board consolidated the

above claims with two other cases arising out of the North

River Pollution Control Project, since they involved com-

mon questions of law and fact. By majority decision dated

November 30, 1978, the Board affirmed the Administrative

Law Judge decision in Sullivan and reversed the decision

in Fusco. In denying coverage under the Act, the Board

specifically held that none of the claimants were engaged

in maritime employment as required by §902(3) of Act

(A41). The Benefits Review Board stated:

[W]e conclude that a claimant’s employment must have

a realistically significant relationship to maritime ac-

tivities involving navigation and commerce over navi-

gable waters in order for that employment to be

deemed rnaritime employment under Section 2(3) [cita-

tions omitted]. Since the claimants herein were en-

gaged in iie construction of a sewage disposal plant,

their employment did not have a realistically signifi-

cant relationship to maritime activities involving navi-

gation over navigable waters. (A41).

Agreeing with the decision of the Administrative Law

Judge in Sullivan, supra, the Board noted:

Congress did not intend that the phrase “maritime

employment” include a worker in the building or con-

struction trades performing his usual function in the

erection of any structure that happened to be situated

upon navigable waters. To conclude otherwise wou'd

be to include under the Act a whole new group or class

of employees not originally intended to be covered.

Furthermore, to provide coverage to workers under the

Act based solely upon injury over navigable water

without regard to their individual status would be tan-

tamount to the establishment of dual standards in

the determination of jurisdiction. One standard for

workers injured over navigable water and yet another

for workers injured shoreside. The result is simply

untenable. Id.

Fusco and Sullivan filed Petitions for Review of the

Board’s Order in the United States Court of Appeals for

the Second Cireuit. The Director, Office of Workers’ Com-

pensation Programs also petitioned the Second Circuit for

review of the Board’s decision in the four consolidated

eases. In reversing the decision of the Benefits Review

Board, the court rejected the occupational test of “maritime

employment”. The court stated: “[WJe interpret the crit-

ical phrase “person engaged in maritime employment”

geographically so as to include any person whose principal

duties are perfec med on navigable waters as that term

was understood before 1972.” Fusco v. Perini North River

Assoc., 601 F.2d 659, 669 (2nd Cir. 1979) (A21). Under this

interpretation, the court held that Fusco and Sullivan were

persons engaged in maritime employment and hence, cov-

ered employees under §902(3) of the Act. The court also

held that the Director, Office of Workers’ Compensation

Programs lacked standing to petition for review under 33

U.S.C. §921(¢c) and dismissed his petition. 601 F.2d at 670

(A22-3).

After the Second Circuit opinion was issued on June 29,

1979, Perini North River Associates and Hartford Accident

and Indemnity Company filed a timely petition to the Sec-

ond Cireuit Court of Appeals, requesting rehearing and

rehearing en bane. The Petition for Rehearing and Re-

hearing En Bane was denied on August 21, 1979. 601 F.2d

at 670 (A24-5).

Reasons for Granting the Writ

The instant petition squarely presents this Court with

the question whether the “maritime employment” require-

ment of §902(3) of the Longshoremen’s and Harbor Work-

ers’ Compensation Act,’ as amended, 86 Stat. 1251, 33

U.S.C. §901 et seq. (1970 ed., Supp. V), requires an oceupa-

tional test of status to determine whether construction

workers are covered under the.Act. The decision below

further raises the question whether all workers who would

have been covered employees under the 1927 Act are auto-

matically covered after the 1972 Amendments to the Act,

solely by virtue of their prior coverage.

The questions raise important, basic issues of statutory

construction, the resolution of which are essential for the

effective administration of the Act. The issues presented

are troublesome and involve numerous cases now pending

before the Circuit Courts, the Benefits Review Board and

Administrative Law Judges.’

1 Hereinafter referred to as the “Act.”

? See, e.g., Domenico v. Crimmins-Vacar Joint Venture, 9 BRBS

668 (1979), appeal docketed, No. 79-4069 (2nd Cir., March 21,

1979) ; Matson v. Perini North River Associates, 9 BRBS 967

1979), appeal docketed, No. 79-4085 (2nd Cir., April 20, 1979) ;

Abrahamsen vy. Perini North River Associates, 9 BRBS 1041

(1979) ; appeal docketed, No. 79-4081 (2nd Cir.,-April 13, 1979) ;

Dantes v. Western Foundation Corp., 10 BRBS 541 (1979),

appeal docketed, No. 79-1358 (1st Cir., July 27, 1979); Robinson

v. Perini North River Associates, No. 78-L.HCA-257, BRBS

— (ALJ 1979), appeal docketed, No. 79-164 (BRB, February

Perini North River Associates, the employer herein, is

engaged in the business of heavy construction. Ronald Fusco

and Bernard Sullivan, employed by Perini, were construc-

tion workers building a substructure for a sewage treat-

ment facility extending out over the North River between

West 133rd and West 148th Streets in New York City.

By Adopting a Geographical Interpretation of the

Phrase “Maritime Employment” the Circuit Court of

Appeals Has Ignored the Clear Language and Intent of

33 U.S.C. §902(3).

§902(3) defines an employee within the meaning of the

Act. The subsection states:

The term “employee” means any person engaged in

maritime employment, including any longshoreman or

other person engaged in longshoring operations, and

any harbor-worker including a ship repairman, ship-

builder, and ship-breaker, but such term does not in-

clude a master or member of a crew of any vessel, or

any person engaged by the master to load or unload

or repair any small vessel under eighteen tons net.

The court below held Fusco and Sullivan to be employees

subject to the coverage of the Act on the ground that

their injuries occurred upon “navigable waters” as that

term was defined in §903(a) of the original Act, 44 Stat.

1426, 33 U.S.C. §903(a). The court concluded:

Weighing all relevant factors, we interpret the criti-

cal phrase “person engaged in maritime employment”

geographically so as to include any person whose prin-

21, 1979) ; Christiansen v. Perini North River Associates, No. 78-

LHCA 450, —— BRBS (ALJ 1979), appeal docketed, No.

79-424 (BRB, June 29, 1979).

cipal duties are performed on navigable waters as that

term was understood before 1972.

Since each claimant—that is, Fusco and Sullivan—

performed his principal duties upon navigable waters

as that term was defined in §3(a) of the original 1927

LHWCA, ..., and sustained on such waters a work-

related injury, we hold that each was eligible for

compensation as “a person engaged in maritime em-

ployment” within the meaning of §2(3) of the LHWCA

as amended in 1972, ... Fusco v. Perini North River

Assoc., 601 F.2d 659, 669 (2nd Cir. 1979) (A22) (Cita-

tions omitted).

By adopting a geographical interpretation of “maritime

employment” herein, the court below has predicated cov-

erage solely on the basis of the situs of the injured worker.

The court’s analysis in the case at bar effectively eliminates

any inquiry into the occupation (status) of the claimant.

The language employed in §902(3) of the Act undeniably

describes employees occupationally. This court in North-

east Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977),

explained that the Act focuses primarily on occupation—

longshoremen, harbor workers, ship repairmen, shipbuild-

ers and ship-breakers. 432 U.S. at 273. Indeed, the court

below concedes that “[t]he strongest argument for an

occupational interpretation rests on a portion of the bare

text of the statute.” 601 F.2d at 664 (A9).* The court

further agreed:

>See generally, Comment, The Longshoremen’s and Harbor

Workers’ Compensation Act: Coverage after the 1972 Amend-

ments, 55 Tex. L. Rev., 99, 106, 107 (1976). The phrase maritime

employment has traditionally connoted a type of work done, not

a place of work. 7d. at n. 61. Absent an unambiguous indication

But it is noteworthy that, with the possible exception

of harborworkers, each of the persons specifically de-

scribed is described occupationally not geographically.

The noscitur a sociis and ejusdem generis canons of

construction suggest that the critical phrase is used

occupationally and as a description of a class of per-

sons in terms of their occupation. Jd.

If Congress had intended to establish a geographical test

of “maritime employment”, it would simply have defined

an “employee” as “any person engaged in any employment

upon navigable waters as that term was understood prior

to 1972”.

In prepared questions and answers suomitted to the

House of Representatives prior to enactment of the 1972

Amendments to the Act, Representative William Steiger

made it clear that, while the covered situs was to be ex-

panded, coverage would still be determined by an inquiry

into the occupation of the employee.

QUESTIONS AND ANSWERS

Question: The present law covers employees work-

ing on navigable waters. Do the amendments change

the scope of coverage?

Answer: Yes. The present law’s coverage is limited

to employees working on navigable waters, including

those working on dry docks. The amendments will ex-

tend coverage to wharfs, terminals, marine railways,

and other adjoining areas customarily used in build-

by Congress that the phrase was to be given a situs meaning, it

should be interpreted solely as a status term. When interpreting

legislation, courts should use the ordinary meaning of words other

than technical terms. NERB v. Coca Cola Bottling Co., 350 U.S.

264, 268 (1956); Ernst & Ernst v. Hochfelder, 425 U.S. 185, 199

n. 19 (1976).

ing, repairing, loading, or unloading vessels. Also, the

definition of “employee” is clarified by the amendments.

The latter change was made so that a determination

of coverage can be made on the basis of the definition

of “employee.” Under the present law that definition

is so vague that the determination must be made on

the basis of whether the injured individual was work-

ing for a covered “employer.” The expansion of cov-

erage is intended to bring about a measure of compen-

sation uniformity applicable to persons customarily

considered to be working in the business. Thus, even

if an employee does not happen to be over navigable

waters at the time he is injured, he will be covered

as long as he is working as a longshoreman or harbor-

worker, whether engaged in repairing a vessel or un-

loading it. 118 Cone. Rec. 36,385 (1972) (Emphasis

added).

The Second Circuit’s Geographical Interpretation of

“Maritime Employment” Conflicts With the Decisions

of Five Other Circuit Courts Which Have Applied an

Occupational Status Test Under §902(3).

In rejecting the status test of maritime employment for

the construction workers herein, the court below asserted:

A petitio principti is built into the frequently-re-

peated statement that before 1972 the right to recover

under the LHWCA was based primarily on the situs

of the injury and that the 1972 amendments changed

the basis of recovery to make it dependent both on a

status test and a situs test, 601 F.2d 659, 668 (A18).

Yet, Mr. Justice Marshall writing for a unanimous Court

in Northeast Marine Terminal Co. v. Capute, 432 U.S. 249

(1977), specifically stated that the 1972 Amendments to the

Act created dual situs and status tests of coverage. This

Court said:

But with the definition of “navigable waters” expanded

by the 1972 Amendments to include such a large geo-

graphical area, it became necessary to describe affir-

matively the class of workers Congress desired to com-

pensate....

The 1972 Amendments thus changed what had been

essentially only a “situs” test of eligibility for com-

pensation to one looking to both the “situs” of the

injury and the “status” of the injured. 432 U.S. at 264-

265.

By its rejection of an occupational status test, the lower

court drastically departs from the standards set forth by

other Cireuit Courts.‘ Of the six circuits that have con-

sidered the meaning of “maritime employment,” only the

court below has rejected an occupational interpretation.

The Ninth Circuit decision in Weyerhauser Co. v. Gil-

more, 528 F. 2d 957 (9th Cir. 1975), cert. denied, 429 U.S.

868 (1976), stands in direct conflict with the decision below.

The court in Weyerhauser reversed an award of compen-

sation benefits to a “pondman” injured upon pre-1972

navigable waters, on the ground that his occupation failed

to meet the “maritime employment” requirement of §902(3).

The court held that

for an injured employee to be eligible for federal com-

pensation under LHCA, his own work and employ-

ment, as distinguished from his employer’s diversified

* While the circuits have differed on the precise wording of the

test to be employed in ascertaining status under §902(3), see dis-

eussion in Northeast Marine Terminal v. Caputo, 432 U.S. 249,

n. 40 (1977), all have adopted occupationally-oriented tests.

operations, including maritime, must have a realis-

tically significant relationship to “traditional maritime

activity involving navigation and commerce on navi-

gable waters,” with the further condition that the in-

jury producing the disability occurred on navigable

waters or adjoining areas as defined in $903. 528 F. 2d

at 961.°

The Court of Appeals for the Third Cireuit employed a

similar analysis in Sea-Land Service, Inc. v. Director, Office

of Workers Compensation Programs, 540 F. 2d 629 (3rd

Cir. 1976).° The court held that “maritime employment”

was occupational in nature.” It found that the inclusion of

a “maritime employment” test supplied the necessary ele-

ment of federal admiralty jurisdiction in contract. Admi-

rality jurisdiction requires a relationship to maritime ac-

tivity involving commerce or navigation,

[T]he overall intention appears to be to afford federal

coverage to all those employees engaged in handling

° The Ninth Circuit has consistently used an occupationally-

oriented status test in determining “maritime employment” under

§902(3). In Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d

137 (9th Cir. 1978), the court stated: “Situs and status must co-

ineide before coverage will attach. Each test acts as a control upon

the other so as to diminish the potential for undue expansion of

coverage. 568 F.2d at 140.

* Sea-Land Service involved a land-based truckdriver. Petition-

ers submit, however, that the occupation or location of the claim-

ant under consideration should not affect the test to be applied.

7In Dravo Corp. v. Mazin, 545 F.2d 374 (3rd Cir. 1976), cert.

denied, 433 U.S. 908 (1977), Judge Van Dusen applied the Sea-

Land rationale to a land-based worker in the shipbuilding indus-

try. The Third Cireuit confirmed its use of an occupational test

of status in Maher Terminals, Inc. v. Farrell, 548 F.2d 476 (3rd

Cir. 1977) noting that “[{w]hat is controlling [for determination

of coverage] is the nature of [the employee’s] primary duties.”

548 F.2d at 478. 7”

cargo after it has been delivered from another mode

of transportation for the purpose of loading it aboard

a vessel, and to all those employees engaged in dis-

charging cargo from a vessel... The key [to coverage]

is the functional relationship of the employee’s activity

to maritime transportation, as distinguished from such

land-based activities as trucking, railroading or ware-

housing. 540 F.2d at 638.

In Thibodaux v. Atlantic Richfield Co., 580 F.2d 841 (5th

Cir. 1978), cert. denied, 99 S.Ct. 2820 (1979), the Court of

Appeals for the Fifth Cireuit considered the meaning of

“maritime employment” with respect to an oil worker

fatally injured while being transported, upon pre-1972

navigable waters, to his job site. Applying the alternative

tests of status isolated by this Court in Northeast Marine

Terminal Co. v. Caputo, 432 U.S. 249 (1977), namely, oc-

cupation and activity at the time of injury, the Fifth Cir-

cuit affirmed the judgment of the district court dismissing

decedent’s claim under the Act. 580 F. 2d at 844-45.'

The First Cireuit, in Stockman v. John T. Clark & Son

of Boston, 539 F. 2d 264 (1st Cir. 1976), cert. denied, 433

U.S. 908 (1977), rejected the proposition that any employ-

ment-related injury occurring within the Acts’ territorial

limits was automatically covered. 539 F. 2d at 275. The

court clearly chose an occupational approach in construing

the status requirement.

Coverage was still to be geared only to persons who

loaded and unloaded vessels (or else repaired or built

8 For a discussion of the alternate status tests of occupation and

activity at the time of injury, see, Note, Longshoremen, Longshor-

ing Operations, and Maritime Employment: A Dual Test of Status

After Northeast Marine Terminal Co. v. Caputo, 64 Va. L. Rev.

99 (1978).

them) and who fit such traditional maritime designa-

tions as longslroremen, harbor workers and the like.

539 F. 2d at 276.

The Fourth Circuit has consistently held that the “mari-

time employment” requirement of §902(3), as amended,

has an occupational basis.’ In Conti v. Norfolk € Western

Railway Co., 566 F. 2d 890 (4th Cir. 1977), the court, after

considering the decision of this Court in Northeast Marine

Terminal Co. v. Caputo, supra, concluded:

To us the nub of the Court’s decision is that an em-

ployee who is not engaged in an integral part of the

unloading process will not fall within the coverage of

the Act unless his occupation is of a traditional mari-

time nature. 566 F. 2d at 895.

Based on the foregoing analysis, Petitioners submit that

the Second Cireuit’s geographical interpretation of the

“maritime employment” requirement has created a direct

and irreconcilable conflict with the occupational tests em-

ployed by the First, Third, Fourth, Fifth and Ninth Cir-

cuits. This conflict, leading to contradictory results in the

application of a federal statute would, in and of itself,

justify the granting of the writ requested herein. The

questions raised in the instant petition involve the funda-

mental scope and coverage of an Act designed to afford

a uniform system of compensation to covered employees.

The confusion and lack of certainty in the Act’s applica-

tion, and the inevitable litigation occasioned by the deci-

sion of the court below, defeats a central purpose behind

the statute: namely ... “providing, in the most efficient,

* See, 1.7.0. Corp. of Baltimore v. Benefits Review Board, 529

F.2d 1080 (4th Cir. 1975) modified en banc on other gounds, 542

F.2d 903 (4th Cir. 1976), vacated and remanded sub nom., Adkins

v. 1.7.0. Corp. of Baltimore, 433 U.S. 904 (1977), rew’d on remand,

563 F.2d 646 (1977).

most dignified, and most certain form, financial and medi-

eal benefits for the victim of work-connected injury . . .”

1 Larson, WorKMEN’s CoMPENSATION Law §2.20 (1952).

Under these circumstances, petitioners submit that the

time has come for this Court to resolve these issues.

ill

The Second Circuit’s Conclusion That All Workers

Who Would Have Been Covered Under the 1927 Act

Are Automatically Covered After the 1972 Amendments

Addresses an Issue Explicitly Left Open by This Court

and Directly Conflicts With the Decision of the Ninth

Circuit.

In Northeast Marine Terminal Co. v. Caputo, 432 U.S.

249 (1977) this Court noted:

This case also does not involve the question whether

Congress excluded people who would have been cov-

ered before the amendments; that is, workers who are

injured on navigable waters as previously defined. See

Weyerhaeuser Co. v. Gilmore, 528 F. 2d 957 (CA 9)

cert. denied, U.S. (1976). 432 U.S. at n.25.

When the court below considered this question, it simply

stated in conclusory terms that:

Congress took it for granted that injuries occurring

upon water were covered and would remain covered.

There was no indication that Congress considered with-

drawing existing coverage or eligibility. 601 F.2d at

666 (A14). (Emphasis in original).

As a consequence of its geographical interpretation, the

Second Circuit resolved that a worker, who would have

been covered prior to the 1972 amendments by virtue of

his presence upon 1927 Act “navigable waters”, would be

covered after the amendment. 601 F. 2d at 669.

This conclusion directly conflicts with the decision of the

Ninth Circuit in Weyerhauser Co. v. Gilmore, 528 F. 2d 957

(9th Cir. 1975), cert. denied, 429, 429 U.S. 868 (1976). The

claimant in Weyerhauser was injured while sorting logs

on a saltwater bay of the Pacific Ocean. He would have

been covered under the 1927 Act: he was injured upon

navigable waters as defined in §903(a) of the original Act,

and his employer had other employees engaged in mari-

time employment, 528 F. 2d at 958. See: Pennsylvania R. R.

Co. v. O’Rourke, 344 U.S. 334 (1953). The Ninth Circuit,

however, termed the Benefits Review Board’s assertion

that “anyone covered under the Act prior to the 1972

amendment must indeed be permitted to come within its

protection subsequent to the amendments” (528 F. 2d at

958) an “exercise in judicial legerdemain.” 528 F.2d at

961.*° The court found that the Board’s conclusion stemmed

from a misinterpretation of the frequently stated “expan-

sion” of coverage provisions of the 1972 amendments. The

court stated:

[t]his expansion refers only to the broadened defi .-

tion of “navigable waters”, . . . which now include.

“adjoining” piers and other areas prescribed in Sec.

903(a). 528 F. 2d at 960.2?

*° Adopting a modified version of the Weyerhaeuser test, the

Benefits Review Board subsequently held that “maritime employ-

ment” requires “a realistically significant relationship to maritime

activity involving navigation and commerce over navigable waters

...” Sedmak v. Perini North River Assoc., BRB Nos. 77-896,

77-579, 77-579A, 78-129, 78-407 (November 30, 1978), reported in

9 BRBS 378, 386 (1978) (A41).

11 Professor Larson in his treatise explains that “[t]he addition

of the ‘status’ test is not an expansion but a contrac.ion. This is

necessarily so because, before 1972, there was no requirement

Under Weyerhauser, only those employees whose work

activities bear a “realistically significant relationship to

traditiona. maritime activity involving navigaton or com-

merce on navigable waters” are covered under the Act.

528 F. 2d at 961. To dispose of this status requirement,

as did the Second Circuit in the decision below, nullifies

“the clear and unambiguous congressional language of

maritime employment” and renders it to read “ ‘any em-

ployment’.” 528 F. 2d at 961.

The Circuit Court’s Construction of 33 U.S.C. §902

(3) Creates Confusion, Ambiguity and Uncertainty in

the Basic Administration of the Act.

The decision below does not merely represent a distine-

tion in theory. Nor are its effects confined solely to the

instant case and the multitude of claims arising out of the

North River Pollution Control Project. There will be in-

dustry-wide ramifications.

In another matter decided the same day as the case at

bar, the Second Circuit explained its interpretation herein,

defining “maritime employment” for purposes of §902(3)

and (4) as employment upon “actual” navigable waters,”

distinguishing these waters from the expanded “statutory”

navigable waters contained in §903(a). Walter Tantzen,

Inc. v. Shaughnessy, 601 F. 2d 670 (2d Cir. 1979). The

court noted:

whatsoever that this employee be in maritime employment .. .”

4 LARSON, WORKMEN’S COMPENSATION Law §89.27 at p. 16-181

(1952). (Emphasis in original).

12 By “actual” navigable waters, the court meant only those areas

defined as “navigable waters” under the 1927 Act, 44 Stat. 1426,

33 U.S.C. §903(a).

When §2(3) defines “employee” as “any person en-

gaged in maritime employment, including any long-

shoreman,” §2(3) uses the word “including” inexactly ;

as there used “including” means “as well as.” §2(3)

does not say, what obviously is not the case, that every

longshoreman is engaged in employment upon actual

water. Hence the mere fact that employment in long-

shoring operations is a type of employment within

§2(3) does not make it a type of maritime employment”

as those two words are used in §2(3).

Nor is employment in longshoring operations on land

“maritime employment” as that term is used in §2(4).

601 F. 2d at 673. (Emphasis in original).

In Fusco this interpretation extends coverage to con-

struction workers fortuitously located upon actual water.

Yet in Tantzen, the same interpretation denies benefits to

a claimant, clearly a longshoreman, who happens to work

entirely on a pier or adjoining land area where the em-

ployer has no other employees working upon actual navi-

gable waters.

As was recognized by this Court in Northeast Marine

Terminal Co. v. Caputo, 432 U.S. 249 (1977), the shifting

of longshoring operations onto land was a primary concern

of Congress when it enacted the 1972 amendments to the

Act. 432 U.S. at 269-271. Yet the decision below and its

explanation in Tantzen lead inescapably to the conclusion

that many of the workers enumerated in §902(3) will

not be covered under the Act even though they are injured

upon a situs specified in §903(a).

This analysis represents a clear subversion of the con-

gressional intent behind the amendment, and is totally un-

supported by reference to either the history of the Act or

the language in the statute itself. Most importantly, as

longshoring operations move increasingly onto land, the

Second Circuit analysis will result in loss of coverage for .

longshoremen—the single class of workers most clearly

meant to receive benefits under the Act.

This Court in Caputo, supra, stated that a dominant

theme behind the amendments was to eliminate the phe-

nomenon of shifting and fortuitous coverage due to a situs-

based test. 482 U.S. 249, 272%°

However, by again making coverage dependent on situs

alone, the Second Circuit defeats this Congressional pur-

pose. Indeed, the court below concedes that its decision

will lead to shifting coverage of construction workers but

suggests that “if uniformity is desirable, that is a question

for Congress, not for us”. 601 F. 2d at 669. By employing

an occupational status test, the five other circuits that have

considered the question have eliminated the problem of

shifting coverage.'* Petitioners submit that it is only the

misinterpretation of an otherwise clear statute by the Sec-

ond Circuit that will cause the conceded lack of uniformity

in application, a result neither envisaged by the Congress,

nor sanctioned by any other judicial construction.

The decision below states that “[w]le ought not to as-

sume that just because Congress moved into a two-pronged

situation with respect to injuries over land, it also moved

13 See, S. Rep. No. 92-1125, 92d Cong., 2d Sess., 12-13 (1972) ;

H.R. Rep. No. 92-1441, 92d Cong., 2d Sess., 10-11 (1972).

1* Whenever a geographical line is drawn, the danger of shift-

ing coverage increases. If the object is to extend coverage to an

admittedly mobile class of workers, logic demands that coverage

be defined in terms of the class, rather than in terms of a fixed

location. For further analysis of the need for an occupational

approach in defining “maritime employment,” see, Note, Coverage

Under the LHWCA Amendment of 1972: Developing A Practical

Uniformly Applicable Interpretation Of The Status Requirement,

18 Wn. & Mary L. Rev. 555 (1977).

into a two-pronged situation with respect to injuries over

water, ...” 601 F. 2d at 668 (Ai8). It is submitted

that the Act as amended, and the accompanying legislative

history, as well as the decisions of the United States Su-

preme Court and the lower federal courts will be searched

in vain for any authority which would permit dissimilar

tests of status to be applied to workers under §902(3). Such

an interpretation is unnecessarily confusing and will cer-

tainly give rise to needless litigation.

The coverage provisions of §902 are basic to the proper

application and administration of the Act. Indeed, such a

drastic divergence of judicial opinion, concerning the initial

determination of who is eligible for benefits, represented

by the decision below, ensures the destruction of the uniform

compensation system Congress sought to implement in 1972.

The Second Circuit takes liberties not warranted by the

clear language of the statute, extending coverage to em-

ployees whose work bears no relationship whatsoever to

those occupations for which Congress clearly wished to

provide benefits. The explanation of the Second Circuit’s

analysis in Walter Tantzen, Inc. v. Shaughnessy, 601 F. 2d

670 (2nd Cir. 1979), denies coverage to workers explicitly

named in the text of the Act. This “exercise in judicial

legerdemain”, as the Ninth Circuit termed it in Weyer-

hauser Co. v. Gilmore, 528 F.2d 957, 961 (9th Cir. 1975),

cert. denied, 429 U.S. 868 (1976), cannot be justified.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Second Circuit.

Respectfully submitted,

FiscHER BroTHERS

WriuiaMm F. Fiscuer, Jr.

Attorneys for Petitioners

Perini North River Associates

and Hartford Accident and

Indemnity Co.

90 John Street

New York, New York 10038

(212) 267-6456

Of Counsel:

Martin Krvutzent

November 14, 1979

Appendices

APPENDIX A

Opinion of the United States Court fo Appeals

for the Second Circuit

UNITED STATES COURT OF APPEALS

For tHe Seconp Circuit

Nos. 869, 870, 871—August Term, 1978.

(Argued April 30, 1979 Decided June 29, 1979.)

Docket Nos. 79-4006, -4015, -4016

ate

Ronaup Fusco,

Petittoner,

—and—

BERNARD SULLIVAN,

Petitioner,

——niinn

Dmecror, Orrice oF Workers’ COMPENSATION PROGRAMS,

Unitrep States DepaRTMENT OF LABOR,

Petitioner,

—_Y—

Pertnt Nortu River Associates,

—and—

Hartrorp Accipent & Inpemnity Company,

Respondents.

Before:

Gurren and MEskKILL, Circuit Judges, and

Wyzansk1, Senior District Judge.*

. Of the District of Massachusetts, sitting by designation.

Appendix A

Petitions for review of an order of the Benefits Review

Board, United States Department of Labor, denying com-

pensation to petitioners Fusco and Sullivan. Set aside on

the ground that a construction worker whose principal

duties are performed on navigable waters as that term was

defined in §3(a) of the original 1927 Longshoremen and

Harbor Workers’ Act, 44 Stat. 1426, 33 U.S.C. §903(a) and

who sustains on such waters a work-related injury is, within

the meaning of §2(3) of the Longshoremen and Harbor

Workers’ Compensation Act, as amended in 1972, 86 Stat.

1251, 33 U.S.C. §902(3) (1970 ed., Supp. V), “a person

engaged in maritime employment.”

Bernarp S. Epstein, Epstein & Epstein, New

York, NY, for petitioner Ronald Fusco.

Joseph Kuorz, New York, NY, for petitioner

Bernard Sullivan.

Cartin Ann Cxiauss, Laurie M, SrreeTer, Mark

C. Waters, U.S. Dept. of Labor, Washing-

ton, D.C., for petitioner Director, Office of

Workers’ Compensation Programs.

WuuaMm F. Fiscner, Jr. Martin Krvrzet,

Fischer Brothers, New York, NY, for re-

spondents Perini North River Associates

and Hartford Accident and Indemnity Com-

pany.

WrzanskI, Senior District Judge:

The main question presented is whether a construction

worker whose principal duties are performed on navigable

waters, as that term was defined in §3(a) of the original

Appendix A

Longshoremen and Harbor Workers’ Act, [LHWCA] 44

Stat. 1426, 33 U.S.C. §903(a), and who sustains on such

waters a work-related injury is, within the meaning of

§2(3) of LHWCA, as amended in 1972, 86 Stat. 1251, 33

U.S.C. §902(3) (1970 ed., Supp. V) a “person engaged in

maritime employment” so as to be covered by LHWCA.’

Fusco and Sullivan, having sustained work-related in-

juries in separate accidents in the course of their employ-

ment by Perini during the construction of a sewage dis-

posal plant, called the North River Pollution Control Pro}-

ect, filed claims for compensation under the Longshoremen’s

and Harbor Workers Compensation Act [LHWCA], as

amended in 1972, 86 Stat, 1251, 33 U.S.C. §901, (1970 ed.,

Supp. V) et seq.

Lesser, A.L.J. heard Fusco’s case; Feldman, A.L.J. heard

Sullivan’s case. Each ALJ made findings as to the Perini

project. These findings differ slightly from one another

and from parallel findings by Cappo, A.L.J. in a companion

case, which the BRB found most accurate. For our pur-

poses the following two paragraphs serve as a fair sum-

mary of the findings as to Perini.

Perini is engaged in the business of heavy construction.

The City of New York awarded it a contract to construct a

substructure for a sewage disposal plant called the North

River Pollution Control Project, to be located on the North

River between 133rd and 148th Streets and to extend from

1 The relevant statutory section, defining “employee,” with italics indi-

cating the material added to the original statute by 1972 amendments,

86 Stat. 1251, 33 U.S.C. §902(3) (1970 ed., Supp. V) provides:

“The term ‘employee’ means any person engaged in maritime employ-

ment, including any longshoreman or other person engaged in long-

shoring operations, and any harborworker including a ship repairman,

shipbuilder, and shipbreaker, but such term does not include a master

or member of a crew of any vessel, or any person engaged by the

master to load or unload or repair any small vessel under eighteen

tons net.”

Appendix A

the shoreline out over the water approximately 700 feet

to the pierhead.

Perini’s contract required it to place 2,300 hollow cir-

cular pipes, called caissons, in navigable waters down to

imbedded rock, to fill the caissons with concrete, to connect

them together at proper elevations above the water with

concrete beams, and to place precast concrete slabs on top

of the beams.

Lesser, A.L.J. found that Fusco “worked on floating

stages assisting the so-called ‘dock building’ in the construc-

tion of the substructure, performing such tasks as fetching

materials from barges or from the shore, assisting in the

driving of caissons into the riverbed, pouring concrete into

the caissons, fabricating wood forms for the pouring of

concrete beams across the caissons and helping to construct

platforms across those beams,” and that “he fell while

descending a ladder” and “in falling struck his head against

a concrete form.” The ALJ added that “one witness [whom

the ALJ seems to have credited] did observe the Claimant

climbing down a ladder from one of the concrete forms

down to a raft below; the witness saw the ladder twist

and the Claimant suddenly disappear from sight.” The

ALJ stated as a conclusion of law that “at the time of his

injury the Claimant was employed as a construction laborer

engaged in the construction of a substructure for a sewage

disposal plant over navigable waters, which employment

was within the coverage of the Act.” The ALJ entered an

order directing respondents to compensate Fusco. Respon-

dents appealed to the Benefits Review Board [BRB].

Feldman, A.L.J. found that Sullivan “was directly in-

volved” in “the building and filling of caissons (large

cylinders sunk upright into the water) into which steel re-

enforcing rods were inserted ... and re-enforcing horizontal

beams hanging over the water from caisson to caisson. ...

Appendix A

While working on beams at high tide, Claimant... would

frequently be standing in water. ... Two or three times a

week Claimant ... went aboard barges to unload steel rods

or to prepare such rods to be moved by cranes that were

aboard some of the barges.... At the time of the accident,

Claimant was standing about 12 inches above the water.”

The ALJ’s conclusions of law were “that the situs require-

ments for coverage under the Act have been met, Claimant

having been injured while at work upon navigable waters,”

and that “the Employer meets the requirements of Section

2(4) of the Act in that at least some of its employees are

engaged in maritime employment,” but that “Ciaimant is

not a longshoreman, ship repairman, shipbuilder, or ship-

breaker. Nor could he be classified as a harbor worker,”

and that “nothing in Claimant’s occupation ... entails mari-

time employment.” The ALJ entered an order rejecting

the claim. Sullivan appealed to the BRB.

The BRB heard in one proceeding Fusco, Sullivan, and

two other cases, and permitted the Director, Office of Work-

ers’ Compensation Programs, United States Department

of Labor, to become a party in interest. By its November

30, 1978 order, the BRB reversed Lesser, A.L.J. in Fusco

and affirmed Feldman, A.L.J. in Sullivan. Writing for him-

self and Member Kalaris, over the dissent of Member

Miller, Chairman Smith of the BRB,’ after noting that

“Claimants were found in each case to have satisfied the

Section 3(a) situs test ... [and that] [t]he findings of

situs are not on appeal,” held that “Since the claimants

herein were engaged in the construction of a sewage dis-

posal plant, their employment did not have a realistically

significant relationship to maritime activities involving

navigation and commerce over navigable waters. It follows

2 The BRB opinions are reported at 9 BRBS 378.

Appendix A

that the claimants were not engaged in maritime employ-

ment pursuant to Section 2(3) and thus are not covered

under the act.”

Fusco, Sullivan, and the Director, relying upon 33 U.S.C.

§921(c), petitioned this Court to set aside the BRB Novem-

ber 30, 1978 order.

The petitions before us raise only one question, the so-

called status issue—whether the claimant at the time of

his injury was a “person engaged in maritime employment,”

as that phrase is used in §2(3) of the LHWCA, 86 Stat.

1251, 33 U.S.C. §902(3) (1970 ed., Supp. V). Respondents

contend that we must also consider the so-called situs is-

sue—whether the injuries occurred on navigable waters.

In Sullivan, where respondents succeeded before both the

ALJ and the BRB, the respondents are entitled to contend

that if they do not prevail before us on the status issue

they are entitled to prevail on the situs issue. But in Fusco

we need not consider respondents’ contention because when

respondents appealed from the ALJ to the BRB they aban-

doned the situs issue by their failure to assign it as error.

(App. 31, note 2). Yet one of the arguments addressed

to us by petitioners with respect to the status issue—to wit,

that under the 1927 Act before it was amended in 1972 peti-

tioners would have been entitled to compensation for the

injuries of which they complain—makes it appropriate for

us, before we tackle the status issue, to scrutinize the ad-

ministrative findings not merely in Sullivan but also in

Fusco in order to determine whether the injuries occurred

upon navigable waters as that term was used in the original

1927 LHWCA and as it is now used under the 1972 amend-

ments.

In our scrutiny we need to bear in mind that under the

1927 LHWCA, before its amendment, there was coverage

only for “an injury occurring upon the navigable waters of

Appendix A

the United States.” 44 Stat. 1426, 33 U.S.C, §903(a). Since

the term “‘navigable waters” was then read literally and did

not include extensions of land, there was no coverage of an

injury occurring on a structure permanently affixed to land.

Nacirema Operating Co. v. Johnson, 396 U.S. 212, 214-215

(1969). It was only after the 1972 amendments that the

term navigable waters of the United States was defined

to include “any adjoining pier, wharf, dry dock, terminal,

building way, marine railway, or other adjoining area cus-

tomarily used by an employer in loading, unloading, repair-

ing, or building a vessel.” 86 Stat. 1251, 33 U.S.C. §903(a)

(1976 ed., Supp. V).

In Fusco the injury occurred as the claimant descended

a swinging ladder from a concrete form to a raft, and the

ladder twisted and threw him against the form, causing him

to fall, perhaps but not certainly, into the water. Respon-

dents contend that this was an injury occurring on a struc-

ture permanently affixed to land, and so was not within

the coverage of the original 1927 Act. We conclude that

respondents are mistaken. Fusco was injured over navi-

gable waters while on a rope ladder temporarily affixed to

a structure which may or may not have been permanently

affixed to land. He was hit by the structure not while on

it, but while on the ladder. Under both the 1927 LHWCA

and the 1972 amendments Fusco’s injury occurred “upon

navigable waters.”

In Sullivan the injury occurred while the claimant “was

installing beams about 150 feet from the shore and was

standing about 12 inches above the water.” The ALJ does

not tell us upon what he was standing. But from the ALJ’s

findings and the BRB’s opinion we know that the part of

Perini’s construction work in which Sullivan was involved

called for connecting embedded or sunken caissons at

proper elevations above the water with concrete beams.

Appendix A

We therefore cannot suppose that at the time of the acci-

dent, while installing beams hanging over water, Sullivan

was standing on a structure permanently affixed to land.

We conclude that Sullivan’s injury occurred “upon navl-

gable waters” as that term was used in 1927 as well as

in 1972.

The foregoing analysis disposes of respondents’ conten-

tion that, regardless of how we decide the status issue,

they are entitled on the basis of the situs issue to have the

November 30, 1978 BRB order affirmed.

We now turn to the main question presented in each of

the two cases before us—whether at the time of his injury

the claimant was a “person engaged in maritime employ-

ment” as that phrase is used in §2(3) of the amended

LHWCA 86 Stat. 1251, 33 U.S.C. §902(3) (1970 ed., Supp.

V).

The phrase “a person engaged in maritime employment”

(hereinafter sometimes called “the critical phrase”) is not

defined in the 1972 Amendments nor in the 1927 LHWCA

which was being amended.

Etymologically, the critical phrase could have an occupa-

tional, or a geographical connotation, or both: that is, it

could refer to a person engaged in an occupation character-

istically associated with the sea or other navigable

waters, and/or to a person engaged in work upon the sea

or other navigable waters.°

The BRB in the instant case gave to the critical phrase

an occupational interpretation,* modeled on, but somewhat

3 See 1A Benedict on Admiralty, (7th ed. 1973) §17: “On the basis

that there can be nothing more maritime than the sea, every employ-

ment on the sea or other navigable waters should be considered as

maritime employment.”

4 The BRB concluded “that a claimant’s employment must have a

realistically significant relationship to maritime activities involving

Appendix A

different from, the interpretation given by the Ninth Cir-

cuit’ in Weyerhauser Company v. Gilmore, 528 F.2d 957,

961 (9th Cir.), cert. denied, 429 U.S. 868 (1976). Petitioners

contend that the appropriate interpretation is geographical.

Respondents support an occupational interpretation.

The strongest argument for an occupational interpreta-

tion rests on a portion of the bare text of the statute. The

critical phrase is immediately followed by the words “in-

cluding any longshoreman or other person engaged in long-

shoring operations, and any harborworker, including a ship

repairman, shipbuilder and shipbreaker.” The word “in

cluding” does not necessarily determine that the critical

phrase refers to a class of which the following specifically

described persons are members.* But it is noteworthy that,

with the possible exception of harborworkers, each of the

persons specifically described is described occupationally

not geographically. The noscitur a socus and ejusdem

generis canons of construction suggest that the critical

phrase is used occupationally and as a description of a

class of persons in terms of their occupation.

Yet that argument fails to give any weight to another

argument also based on the bare text of the statute. The

navigation and commerce over navigable waters in order for that

employment to be deemed maritime employment under Section 2(3).”

5 Weyerhauser Company v. Gilmore, supra, held:

{[T]hat for an injured employee to be eligible for federal compen-

sation under LHCA, his own work and employment, as distinguished

from his employer’s diversified operations, including maritime, must

have a realistically significant relationship to ‘traditional maritime

activity involving navigation and commerce on navigable waters,’

with the further condition that the injury producing the disability

occurred on navigable waters or adjoining areas as defined in $903.

6 Thus, for example, the words “human beings” are descriptive of a

class when used in the phrase “human beings, including men and

women,” but are not descriptive of a class when used in the phrase

“human beings, including cats and dogs.”

A10

Appendiz A

critical phrase is so nearly identical with the phrase “em-

ployees .. . employed in maritime employment” which ap-

pears in §2(4) (quoted in footnote 7) of the very statute

which was being amended that it seems to have been

adapted, if not adopted, from §2(4). This invokes a dif-

ferent rule of statutory construction: when a legislature

borrows an already judicially interpreted phrase from an

old statute to use it in a new statute, it is presumed that the

legislature intends to adopt not merely the old phrase but

the judicial construction of that phrase. Barnet v. Harmel,

287 U.S. 103, 108 (1932).

In view of the ambiguity of the text of the 1972 Amend-

ments, we find it necessary for an understanding of the

critical phrase to turn to the legislative and judicial history

of the original 1927 LH WCA as well as the legislative his-

tory of the 1972 amendments, especially since, as we have

recently been reminded, the LHWCA “must be liberally

construed in conformance with its purpose, and in a way

which avoids harsh and incongruous results.” Voris v.

Eikel, 346 U.S. 328, 333 (1953) quoted in Northeast Marine

Terminal Co. v. Caputo, 432 U.S. 249, 268 (1977).

Congress enacted the original 1927 LHWCA in response

to Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917),

Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920), and

Washington v. W. C. Dawson & Co., 264 U.S. 219 (1924),

which held that the States were without power, and Con-

gress could not delegate to them power, to provide com-

pensation for longshoremen injured on navigable waters.

Mr. Justice Brennan, writing for the majority of the Su-

preme Court, in Calbeck v. Travelers Insurance Co., 370

U.S. 114 (1962) read the legislative history as showing

that it was the Congressional purpose to enact “a statute

which would provide federal compensation for all injuries

All

Appendix A

to employees on navigable waters; in every case, that is,

where Jensen might have seemed to preclude state com-

pensation.” (Ibid., pp. 120-121). He rejected the narrower

reading by Mr. Justice Stewart, who regarded the Con-

gressional purpose as merely “to provide a compensation

remedy for those who could not obtain such relief under

state law.” Ibid., p. 134.

In carrying out its purpose, Congress proceeded by

adopting special definitions of injury, employee, and em-

ployer’ and defining coverage.’ The consequence of those

definitions was that so long as a work-related injury oc-

curred on navigable waters and the injured worker was

not a master or member of a crew of any vessel, or any

person engaged by the master to load or unload or repair

any small vessel under eighteen tons net, the worker would

be eligible for federal compensation provided that his em-

ployer had at least one employee (who might be the claim-

ant himself) “employed in maritime employment in whole

7 “Injury, ‘employee,’ and ‘employer’ were defined in 33 U.S.C.

§$§902(2), (3), (4):

“(2) The term ‘injury’ means accidental injury or death arising out

of and in the course of employment, and such occupational disease

or infection as arises naturally out of such employment or as naturally

or unavoidably results from such accidental injury. . .

(3) The term ‘employee’ does not include a master or member of

a crew of any vessel, nor any person engaged by the master to load

or unload or repair any small vessel under eighteen tons net.

(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 dry dock).”

8 “Title 33 U.S.C. $903 defined the coverage provided by the Act:

“(a) Compensation shall be payable under this chapter in respect

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

death results from an 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 compensation proceedings

may not validly be provided by State law. ...”

A12

Appendix A

or in part.”® The 1927 statute gave no guidance as to the

meaning of the phrase just quoted, which appeared in the

definition of “employer.”

For decades the Supreme Court and inferior federal

courts struggled to interpret the eligibility provisions of

the 1927 LHWCA. In Parker v. Motor Boat Sales, Inc.,

314 U.S. 247 (1941) the Supreme Court upheld a finding

of a Deputy Commissioner that a janitor whose only mari-

time activity was one trip as a lookout on a boat was “en-

gaged in maritime employment” so as to make his employer

subject to the LHWCA. In Davis v. Department of Labor

and Industries, 317 U.S. 249 (1942) all of the members of

the Supreme Court agreed that federal coverage under

LHWCA would have been available for a structural steel

construction worker who worked over navigable waters,

but whose duties were exclusively related to construction

of a bridge. In Pennsylvania Railroad Co. v. O'Rourke,

344 U.S. 334 (1953) it was held that a railroad worker in-

jured on navigable waters was covered by the LHWCA.

Finally, Calbeck v. Travelers Insurance Company, supra,

in 1962 conclusively settled that any employee, no matter

what his calling, who was injured while at work on navi-

gable waters was [in maritime employment] covered by the

LHWCA.

We doubt that Supreme Court ever said in haec verba

that any person em} loyed upon navigable waters is, for

purposes of §2(4) of LHWCA, 33 U.S.C. $902(4), “em-

ployed in maritime employment ;” but that is the only prin-

cipled explanation of many of the cited Supreme Court

cases, especially Davis v. Department of Labor and Indus-

9 See Marshall, J. in Northeast Marine Terminal Co. v. Caputo, 432

U.S. 249, 264 (1977).

Al3

Appendix A

tries, and of many lower federal court cases, including

eases involving construction workers.”

We now come to the legislative history of the 1972

Amendments.

As is shown by the complete text of the 1972 Amend-

ments, 86 Stat. 1251-1265, and by the virtually identical

Senate and House reports—S.Rep.No. 92-1125, 92 Cong.

2 Sess. (1972) and H.R.Rep.No. 92-1441 (of which relevant

portions are printed in the margin),”* the main concerns

10 Peter v. Arrien, 325 F.Supp. 1361, 1365 (E.D. Pa. 1971) aff’d,

463 F.2d 252 (3rd Cir. 1972); Hardaway Cont: acting Co. v. O'Keeffe,

414 F.2d 657 (5th Cir. 1968); DeBardeleben Coal Corp. v. Henderson,

142 F.2d 481, 482, note 3 (5th Cir. 1944); Travelers Ins. Co. v.

Branham, 136 F.2d 873, 875 (4th Cir. 1943).

1l [I]n the section describing the shoreward extension, the Committee

Reports state:

“The Committee believes that the compensation payable to a long-

shoreman or a ship repairman or builder should not depend on the

fortuitous circumstance of whether the injury occurred on land or

over water. Accordingly, the bill would amend the Act to provide

coverage of longshoremen, harbor workers, ship repairmen, ship

builders, shipbreakers, and other employees engaged in maritime

employment (excluding masters and members of the crew of a ves-

sel) if the injury occurred either upon the navigable waters of the

United States or any adjoining pier, wharf, dry dock, terminal,

building way, marine railway, or other area adjoining such navigable

waters customarily used by an employer in loading, unloading, re-

pairing, or building a vessel.” S.Rep.13; H.R.Rep.10. { Emphasis

added].

“The intent of the Committee is to permit a uniform compensation

system to apply to employees who would otherwise be covered by

this Act for part of their activity. To take a typical example, cargo,

whether in break bulk or containerized form, is typically unloaded

from the ship and immediately transported to a storage or holding

area on the pier, wharf, or terminal adjoining navigable waters. The

employees who perform this work would be covered under the bill

for injuries sustained by them over the navigable waters or on the

adjoining land area. The Committee does not intend to cover em-

ployees who are not engaged in loading, unloading, repairing, or

building a vessel, just because they are injured in an area adjoining

navigable waters used for such activity. Thus employees whose re-

sponsibility is only to pick up stored cargo for further trans-shipment

would not be covered, nor would purely clerical employees whose jobs

Al4

Appendix A

of Congress were unrelated to “coverage.” See Northeast

Marine Terminal Co. v. Caputo, supra, pp. 261-262. Indeed,

that topic occupied only half a page of a 15-page set of

amendments.

When Congress did deal with coverage, it did not under-

take a general study of the subject. Congress did not ad-

dress itself to the problems raised in Parker, Davis, Penn-

sylvania Rauroad, Calbeck, or cognate lower federal court

cases, nor did Congress comment upon the Calbeck doctrine

that it was the Congressional purpose to give a federal

compensation remedy to all workers, except crew members,

injured seaward or the Jensen line. Congress took it for

granted that injuries occurring upon water were covered

and would remain covered. There was no indication that

Congress considered withdrawing existing coverage or eli-

gibility. What concerned Congress was injuries on land.

The original Act had not provided compensation to any-

one on land. Nacirema Operating Co. v. Johnson, supra.

do not require them to participate in the loading or unloading of

cargo. However, checkers, for example, who are directly involved in

the loading or unloading functions are covered by the new amend-

ment. Likewise the Committee has no intention of extending cover-

age under the Act to individuals who are not employed by a person

who is an employer, i.e., a person at least some of whose employees

are engaged, in whole or in part in some form of maritime employ-

ment. Thus, an individual employed by a person none of whose

employees work, in whole or in part, on navigable waters, is not

covered even if injured on a pier adjoining navigable waters.” S.

Rep.13; H.R.Rep.10-11. [Emphasis added].

“Section 2(a) amends section 2(3) of the Act to define an ‘employee’

as any person engaged in maritime employment. The definition

specifically includes any longshoreman or other person engaged in

longshoreing [sic] operations, and any harborworker, including a

ship repairman, shipbuilder and shipbreaker. It does not exclude

other employees traditionally covered but retains that part of 2(3)

which excludes from the definition of ‘employee’ masters, crew mem-

bers or persons engaged by the master to unload, load or repair

vessels of less than eighteen tons net.” S.Rep.16. See also, H.R.

Rep.14. [Emphasis added].

Al5

Appendix A

This often seemed inequitable, especially in the case of

longshoremen who moved back and forth from vessel to

dock? or who worked stripping and stuffing containers at

terminals, as has become common as a result of modern

technology.** So Congress decided to extend the coverage

shoreward for the benefit of “longshoremen, harbor work-

ers, ship repairmen, shipbuilders, shipbreakers, and other

employees engaged in maritime employment,” but Congress

did not want to include persons “just because they are in-

jured in an area adjoining navigable waters.” **

To give longshoremen, harborworkers, and any person

engaged in maritime employment the benefit of coverage

while they were on areas adjoining navigable waters, Con-

gress broadened the definition of “navigable waters” of the

United States to include “any adjoining pier, wharf, dry

dock, terminal, building way, marine railway, or other ad-

joining area customarily used by an employer in loading,

unloading, repairing, or building a vessel.” **

To make sure that on that new situs eligibility would

not extend to a person who had no relation to maritime

employment except that his employer had at least one em-

ployee employed in maritime employment, Congress

amended the definition of “employee.”

12 See Northeast Marine Terminal Co. v. Caputo, Ibid., pp. 259-260,

269.

13 Ibid., p. 269.

14 See footnote 11.

15 33 U.S.C. §903(a) (1970 ed., Supp. V) provides:

“Compensation shall be payable . . . in respect of disability or death

of an employee but only if the disability or death results from an

injury occurring upon the navigable waters of the United States

(including any adjoining pier, wharf, dry dock, terminal, building

way, marine railway, or other adjoining area customarily used by

an employer in loading, unloading, repairing, or building a ves-

sel) ....” [The italicized parts indicate material added in 1972).

Al6

Appendix A

Explaining the amendment to the definition of “em-

ployee” in §2(3), the Congressional Committees stated:

The definition specifically includes any longshoreman

or other person engaged in longshoreing [sic] opera-

tions, and any harborworker, including a ship repair-

man, shipbuilder ard shipbreaker. It does not exclude

other employees traditionally covered... .

In the phrase “other employees traditionally covered”

the word “covered” deserves emphasis. Of course it is only

the LHWCA’s coverage which would be relevant. “Tradi-

tionally covered,” therefore, means employees previously

covered by the LHWCA. The phrase does not mean tradi-

tionally employed in navigation or maritime commerce. In

fact, most employees engaged in navigation or maritime

commerce are crew members who are excluded by §2(3)

of the LHWCA and are traditionally covered by the Jones

Act, 46 U.S.C. §688, et seq.

There is another significant indication that Congress in-

tended that a person who, before 1972, had eligibility be-

cause his principal duties were on navigable waters as then

defined should retain his eligibility. In the Committee Re-

ports there is a discussion of the effect of the 1927 definition

of an “employer,” which appears in §2(4) of the 1927 Act,

49 Stat. 1426. Interestingly, the Committee misquotes §2(4)

both by changing “employed” to “engaged,” and by mis-

locating the phrase “in whole or in part.” The correct text

of the 1927 version of §2(4) reads:

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 dry dock).

Al7

Appendix A

The 1972 Congressional Committee’s description of the

term “employer” reads:

A person at least some of whose employees are en-

gaged, in whole or in part, in some form of maritime

employment.

If we reflect on this misquotation and then look at the intro-

ductory phrase in the 1972 definition of employee, “any

person engaged in maritime employment,” it does not take

a Sherlock Holmes to infer that whoever drafted the 1972

definition of “employee” borrowed the just-quoted part of

it from his reading of the 1927 definition of “employer.”

In the light of the judicial gloss on the 1927 definition of

“employer” there is a presumption that the draftsman in-

tended that the 1972 definition of employee should cover at

least any person whose principal employment was upon

water.

We now turn from the legislative history to a review of

factors not emphasized by Congress but in our view rele-

vant to the question presented to us.

1. The Supreme Court has given far more than lip serv-

ice to its oft-repeated statement that LHWCA and the

amendments thereto are remedial acts which are to be

liberally interpreted to benefit employees and avoid harsh

results. The Court has not hesitated even to read out of

the LHWCA an explicit statutory provision (to wit, that

part of §3(a) of the 1927 LHWCA, former 33 U.S.C. $903

(a) which provided that compensation shall be paid for

injuries occurring on navigable waters only “if recovery...

through workmen’s compensation proceedings may not

validly be provided by state law”), where the Court found

it repugnant to the general purpose of Congress to protect

A18

Appendiz A

persons injured seaward of the Jensen line. Calbeck v.

Travelers Ins. Co., supra.

2. A petitio principii is built into the frequently-repeated

statement that before 1972 the right to recover under the

LHWCA was based primarily on the situs of the injury

and that the 1972 amendments changed the basis of re-

covery to make it dependent both on a status test and a

situs test. The Congressional Committees never used the

words “situs” and “status” although those words must have

been known to Congress since they were used in Nacirema

Operating Co. v. Johnson, supra, 396 U.S. at 215, which

was one of the cases which triggered the 1972 Amendments.

We ought not to assume that just because Congress moved

into a two-pronged situation with respect to injuries over

land, it also moved into a two-pronged situation with re-

spect to injuries over water, especially when there is no

evidence of such an intention except possibly in one tan-

gential situation. The possible exception relates to a person

whose principal duties are on land and who sustains a

work-related injury on navigable waters. Under the pre-

1972 LHWCA a land-based worker injured on a single trip

over water could recover. Parker v. Motor Boat Sales, Inc.,

supra. When Congress amended §2(3) it borrowed from

the §2(4) text but omitted the words “in whole or in part,”

and thus Congress may have established as a test of status

the question whether the injured person had his major

activities upon navigable waters. Cf. Thibodaua v. Atlantic

Richfield Co., 580 F.2d 841 (5th Cir. 1978), cert. denied,

47 U.S.L.W. 3771 (U.S. May 29, 1979).

3. Unless the term a “person engaged in maritime em-

ployment” be read geographically to include a person who

while at work on navigable waters suffers a work-related

Al19,

Appendix A

injury, some persons employed on navigable waters will

be left without any compensation remedy, state or federal.

We have no data showing how large this group is in a

period of increased exploration, excavation, drilling, and

other enterprise on navigable waters. Moreover, even if

there is protection under state law, Congress might regard

it as inadequate. In 1972 Congress demonstrateé that it

did not want to leave persons injured on navigable waters

to the often low scale of state benefits: it removed the

restriction which, in the 1927 Act, had made federal com-

pensation payable “only ... if recovery for the disability

or death through workmen’s compensation proceedings may

not validly be provided by State law.” **

4. Any occupational interpretation such as that pro-

posed by the BRB—“a claimant’s employment must have a

realistically significant relationship to maritime activities

involving navigation and commerce over navigable waters

in order to be deemed maritime employment under Section

2(3)”—runs into great difficulty. Obviously it does not

apply to a member of a crew, because §2(3) itself excludes

him. If it were to be applied to all other significant rela-

tionships to navigation and commerce this would do vio-

lence to the statement in the Congressional Reports that

there would not be LHWCA coverage as a result of the

amendments for “purely clerical employees whose jobs do

not require them to participate in the loading or unloading

of cargo.” In short, it seems as though an occupational

definition of the critical phrase would be a perversion of

Congressional purpose unless it is limited to the specific

categories of longshoremen, harborworkers and so forth.

And if so limited it is duplicitous and superfluous.

16 See Northeast Marine Terminal Co. v. Caputo, supra, page 263,

n. 21; see historical note to 33 USCA $903.

A20

Appendix A

5. The geographical interpretation avoids the anomaly

of different readings of substantially the same phrase in

two adjacent sub-sections, §2(3) and §2(4) of the same Act.

Were different interpretations to be prescribed, there would

be sure to follow considerable confusion of claimants, their

counsel, administrators, and judges. The importance of

identical interpretations is illustrated by a case we are

deciding today. See Tantzen, et al. v. Shaughnessy, 2nd

Cir., No. 79-4034, , 1979.

6. The geographical interpretation gives administrative

agencies and courts the benefit of a vast body of previous

judicial interpretations of the phrase “employed in mari-

time employment.”

7. A geographical test, as experience shows, rests upon

a simple standard which will minimize litigation and in-

crease efficiency without any apparent social disadvantage.

See 4 Larson, Workmen’s Compensation Law (1979),

$89.27, at pp. 16-178; Gilmore & Black, The Law of Ad-

miralty (2nd ed. 1975) pp. 428-430.

8. Despite what is said in Weyerhauser Company v. Gil-

more, at p. 961, col. 1, the geographical interpretation of

“maritime employment” will not make superfluous the crit-

ical phrase in §2(3), 33 U.S.C. §902,\3) and will not leave

the Act with no status test whatsoever. Under such an

interpretation, the 1972 Amendment will still operate, as

Congress intended, to preclude compensation being paid

to a land-based employee whose only claim to coverage is

that he, while working for an employer who had an em-

ployee engaged in maritime employment, was injured on

land in an area adjoining navigable waters. See Larson,

supra, §89.27, p. 16-182.

A21

Appendix A

9. Even if under a geographical interpretation of the

1972 Amendment an employer like Perini finds that on the

same construction project some of its construction em-

ployees are under federal compensation law, some are

under state compensation law, and some alternating accord-

ing to their work assignments, this lack of uniformity may

be justified by genuine differences (not experienced, for

example, by longshoremen) between the risk of maritime

employment and the risk of land-based employment. More-

over, if uniformity is desirable that is a question for Con-

gress, not for us. So far, Congress has sought uniformity

only by assuring longshoremen and harborworkers that

they will be as highly compensated for injuries sustained

ashore as on navigable waters. It would be another story

for us, undirected by Congress, to hold that construction

workers injured on navigable waters are, for the sake of

uniformity, to be limited to the compensation that they or

other construction workers would receive for injuries on

land-based jobs.

Weighing all relevant factors, we interpret the critical

phrase “person engaged in maritime employment” geo-

graphically so as to include any person whose principal

duties are performed on navigable waters as that term

was understood before 1972. In this case we have no occa-

sion to decide whether the critical phrase also includes a

person whose principal duties are on land but who suffers

work-related injuries while performing duties upon naviga-

ble waters.”’

17 In this case it is unnecessary for us to decide the eligibility of a

person who performed merely incidental duties on navigable waters.

Cf. Thibodauz v. Atlantic Richfield Co., supra, holding that the amended

LHWCA does not apply to an employee who performs his duties on

land but is injured during his transportation over navigable waters

while journeying from one land duty to another land duty.

A22

Appendix A

Our conclusion is consistent with the purposes of the

Congress—to extend and not to withdraw eligibility—and

avoids the harsh results which would flow from a strictly

occupational interpretation.

Since each claimant—that is, Fusco and Sullivan—per-

formed his principal duties upon navigable waters as that

term was defined in §3(a) of the original 1927 LHWCA,

44 Stat. 1426, 33 U.S.C. §903(a), and sustained on such

waters a work-related injury, we hold that each was eligible

for compensation as “a person engaged in maritime employ-

ment” within the meaning of §2(3) of the LHWCA as

amended in 1972, 86 Stat. 1251, 33 U.S.C. §902(3) (1970 ed.,

Supp. V). |

There remains for us to consider the respondents’ mo-

tion to dismiss the Director’s petition on the ground that

he lacks standing to petition for review of the BRB’s No-

vember 30, 1978 order.

We hold that the Director was not “adversely affected or

aggrieved” by the Board’s November 30, 1978 order deny-

ing Fusco’s and Sullivan’s claims to compensation. There-

fore, he lacks statutory standing to petition for review

pursuant to 33 U.S.C. §921(c). Director, Office of Workers’

Compensation Programs v. Donzi Marine, Inc., 586 F.2d

377 (5th Cir. 1978). 1.7.0. Corporation of Baltimore v.

Benefits R. Bd., 542 F.2d 903 (4th Cir. 1976), vacated sub

nom. Adkins v. I.T.0. Corp. of Baltimore, 433 U.S. 904,

rev'd on remand on other grounds, 563 F.2d 646 (1977).

We cannot improve upon what seem to us the irrefutable

analyses of Judges Ainsworth and Winter, for the Fifth

and Fourth Circuits, respectively. If our earlier opinion

in Pittston etc. looks the other way, it is not controlling

because we simply found it unnecessary there to decide the

standing of the Solicitor of Labor to move to dismiss an

A23

Appendix A

appeal by an employer as untimely, 544 F.2d at 42. In

any event we do not suggest in Pittston that the Solicitor

or the Director could seek independent review to attempt

to reverse the BRB.

We need not decide whether the Director lacks consti-

tutional standing under U.S. Constitution Article III on the

ground that he does not present what is in his situation

a “case or controversy.”

Petitions of Fusco and Sullivan granted. The BRB’s

November 30, 1978 order is set aside and the case ts re-

manded for further proceedings not inconsistent with this

opinion.

Petition of the Director dismissed for lack of statutory

standing.

A24

APPENDIX B

Decision and Order of the United States Court of

Appeals for the Second Circuit Denying Rehearing

and Rehearing En Banc

UNITED STATES COURT OF APPEALS

Seconp CrircuIt

At a Stated Term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States

Court House, in the City of New York, on the twenty-first

day of August, one thousand nine hundred and seventy-

nine.

Present:

Hon. Murray I. Gurren,

Hon. Tuomas J. MESKILL,

Circuit Judges,

Hon. Cuas. E. Wyzansk],

District Judge.

Docket No. 79-4006

Ronautp Fusco, et al.,

Petitioners,

Vv.

Pertnt NortH Rrver Associates and

Hartrorp Accient & INDEMNITY ComPaNy,

Respondents.

A petition for a rehearing having been filed herein by

counsel for the respondents,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is denied.

/3/ A. DanreL Fusaro

A. DanieL Fusaro

Clerk

A25

Appendix B

UNITED STATES COURT OF APPEALS

Sreconp CIRcvuIT

At a stated term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States

Court House, in the City of New York, on the twenty-first

day of August one thousand nine hundred and seventy-

nine.

Docket No. 79-4006

Ronaup Fusco, et al.,

Petitioners,

Vv.

Perint Nortu River Associates and

Hartrorp Accipent & INDEMNITY Company,

Respondents.

A petition for rehearing containing a suggestion that the

action be reheard in bane having been filed herein by coun-

sel for the respondents, and no active judge or judge who

was a member of the panel having requested that a vote be

taken on said suggestion,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is denied.

/s/ Irvine R. KaurMan

Irvinc R. KaurMay,

Chief Judge

A26

Appendix B

UNITED STATES COURT OF APPEALS

For THE SECoND CIRCUIT

Nos. 869, 870, 871—August Term, 1978.

Decided August 21, 1979

Docket Nos. 79-4006, -4015, -4016

RonaLp Fusco,

Petitioner,

and

BERNARD SULLIVAN,

Petitioner,

and

Dmecror, Office of Workers’ Compensation Programs,

United States Department of Labor,

Petitioner,

—_—V —

Pertnt Nortu River Associates,

and

Harrrorp Accent & INDEMNITY COMPANY,

Respondents.

Before:

Gurrern, and Meski11, Circuit Judges, and

Wvyzansk1, Senior District Judge.*

* Of the District of Massachusetts, sitting by designation.

A27

Appendia B

Oprnion ON RESPONDENTS’ PeriTION For REHEARING.

Wyzansk1, Senior District Judge:

Contrary to what is alleged at page 10 of respondents’

petition for rehearing, the record does not show that Sulli-

van when injured was standing upon a substructure extend-

ing from the shoreline. It is true that one of the examining

counsel’s questions assumed that Sullivan was “on this

substructure.” But Sullivan never said or implied that he

was standing on that substructure. He testified that he

was “located right above the water.” The fair implication

is that he was on a temporary platform above the water

and the substructure was under the water. Thus there was

substantial evidence for the ALJ to conclude that Sullivan

“was standing about 12 inches above the water” and was

“injured while at work upon navigable waters.”

Petition for rehearing denied.

A28

APPENDIX C

Decision and Order of the Benefits Review Board

of the Department of Labor, Together With the

Dissenting Opinion of Member Miller

U.S. DEPARTMENT OF LABOR

Benerits Review Boarp

Wasurneton, D.C. 20210

FILep Aas PaRT

OF THE RECORD

November 30, 1978

(date)

Acnes Kurtz/WHA

(Clerk)

Benerits Review Boarp

BRB No. 77-896

STEPHEN SEDMAK,

Claimant-Petitioner,

Pertn1 Nortu River Associates,

and

Harrrorp Accipent & INDEMNITY COMPANY

Employer/Carrier-Respondents,

Drector, Orrice oF WorKERS’ COMPENSATION PROGRAMS

Party-in-Interest,

A29

Appendia C

BERNARD SULLIVAN,

Claimant-Petitioner,

Perini Nort River ASsociaTEs

and

Hartrorp Accripent & INDEMNITY COMPANY

Employer/Carrier-Respondents,

Dreector, OFFICE oF WorKERS’ COMPENSATION PRoGRAMS

Petitioner.

BRB No. 78-129

BRB No. 78-407

Ronaup Fusco,

Claimant-Respondent,

Vv.

Perini Nortu River ASSOCIATES

and

Hartrorp Accipent & INDEMNITY Company,

Employer/Carrier-Petitioners,

A390

Appendia C

Everett McNv tty,

Claimant-Respondent,

Pertn1 Nortu River ASsociaTEs,

and

Hartrorp Accipent & INDEMNITY CoMPANY,

Employer/Carrier-Petitioners,

DrmectTor, CFFICE OF Workrrs’ CoMPENSATION PROGRAMS,

Party-in-Interest.

Appeals from the Decisions and Orders of Joyce Capps,

Philip J. Lesser, and Robert J. Feldman, Administra-

tive Law Judges, United States Department of Labor.

Joseph F. Klotz, New York, New York, for Claimant

Sullivan.

Bernard S. Epstein (Epstein & Epstein), New York,

New York, for Claimant Fusco.

Hyman Bass (Roshwald, Bass & Caine), New York, New

York, for Claimant Sedmak.

William F. Fischer (Fischer Brothers), New York, New

York, for Perini North River Associates.

Mare C. Walters, Gilbert T. Renaut, Linda C. Carroll

(Carin Ann Clauss, Solicitor of Labor, Laurie N. Stree-

ter, Associate Solicitor), Washington, D.C., for the Di-

A3l

Appendia C

rector, Office of Workers’ Compensation Programs,

United States Department of Labor.

BEFORE:

Smitu, Chairman, Miier and Kauaris, Members.*

Situ, Chairman:

These are appeals from the Decisions and Orders of Ad-

ministrative Law Judges Joyce Capps (77-LHCA-877),

Philip J. Lesser (76-LHCA-927), and Robert J. Feldman

(77-LHCA-65 and 77-LHCA-877), pursuant to provisions

of the Longshoremen’s and Harbor Workers’ Compensa-

tion Act, as amended, 33 U.S.C. § 901 et seq., (hereinafter

referred to as the Act). In these four cases, each claimant

sustained an injury in the course of his employment on the

same construction project for Perini North River Associ-

ates (hereinafter, Perini). Since each case involves com-

mon questions of law and fact, we have consolidated the

cases for the purposes of these appeals, 20 C.F.R. § 802.104.

We first turn to a review of the construction project by

Perini at which each claimant was injured. Perini’s con-

struction project was thoroughly and accurately described

by Administrative Law Judge Capps:

[Perini] is engaged in the business of heavy con-

struction. Approximately five years ago Perini was

awarded a low-bidder contract by the City of New

York to construct a substructure for the North River

Pollution Control Project. The substructure (or foun-

dation) was needed to support the superstructure of a

* Dissent by MitLer, Member, to follow.

A832

Appendix C

sewage disposal plant which would eventually be built

by another contractor.

The location of the project is on the North River

(which is part of the Hudson River) between 133rd

and 148th Streets and extends from the shoreline out

over the water approximately 700 feet to the pierhead.

Perini’s job began with placing 2,300 caissons’ down

to imbedded rock approximately 25 feet apart. The

eaissons are then filled with concrete, after which they

are connected together at proper elevations above the

water with concrete beams 8 by 4 feet in size. Enclo-

sure between the caissons is completed by placing pre-

cast slabs of concrete 9 to 12 inches thick on top of the

beams, whereupon Perini’s job of constructing the sub-

structure is finished.

- * *

1 Caissons are hollow circular steel pipes about %4” thick,

42” in diameter, and vary in length from 80’ to 250’. [Caissons

are also referred to as piles. |

Sedmak v. Perini North River Associates, 77-LHCA-877

(slip. op., pages 2-3) (Nov. 9, 1977). With this background

in mind, we turn to the individual facts of each case.

SEDMAK

Claimant Sedmak, a dock builder, worked for Perini for

four to five months prior to his injury. About 60 percent

to 70 percent of his time was spent on a barge setting up

the caissons or piles which were an essential part of the

substructure or foundation for the sewage disposal plant.

He was injured while “working on the job of extending No.

2 ramp east over the North River approximately 229 feet

from the shore... .”

A33

Appendia C

Administrative Law Judge Capps concluded that Claim-

ant Sedmak was not engaged in maritime employment with-

in the meaning of Section 2(3), 33 U.S.C. § 902(3), and thus

not covered. Given that determination, she found it un-

necessary to address the other issues presented in the case.

Claimant Sedmak has appealed.

SULLIVAN

Claimant Sullivan, employed as a wire lather, performed

a variety of tasks involving the steel reinforcement of the

concrete beams and caissons for the substructure. Claim-

ant’s duties required him to frequently stand in water while

working on the beams and two or three times a week to

board barges to hook steel onto a crane and unload the

steel. At the time of injury, Claimant Sullivan was install-

ing beams about 150 feet from shore.

Administrative Law Judge Feldman concluded that, al-

though the claimant clearly met the “situs” requirement of

Section 3(a), 33 U.S.C. §903(a), and that Perini met the

requirements of Section 2(4), 33 U.S.C. § 902(4), Claimant

Sullivan did not satisfy the status test because he was not

engeged in maritime employment pursuant to Section 2(3).

He also found that the presumption in Section 20(a) of the

Act, 33 U.S.C. § 920(a), did not apply to the status issue.

Claimant Sullivan and the Director, Office of Workers’

Compensation Programs, have appealed.

FUSCO

Claimant Fusco, a construction laborer, worked on float-

ing stages and assisted the dock builders in the construc-

tion of the substructure. His duties included:

A34

Appendix C

... fetching materials from barges or from the snore,

assisting in the driving of caissons into the river bed,

pouring concrete into the caissons, fabricating wood

forms for the pouring of concrete beams across the

caissons and helping to construct the platforms across

those beams.

Fusco v. Perini North River Associates, 76-LHCA-927 (slip

op. pg. 2) (Dec. 19, 1978). Claimant Fusco was injured

while descending a ladder from one of the concrete forms

to a raft.

Administrative Law Judge Lesser concluded that Claim-

ant Fusco was injured over navigable waters according to

Section 3(a), and was engaged in maritime employment

according to Section 2(3). Perini has appealed.

McNULTY

Claimant MeNulty, a dock builder, also worked on the

same substructure or foundation as the other claimants.

His job duties involved dropping the forms in the river and

pulling them up with a crane in order to get them set. At

the time of injury, he was working on top of a concrete

form about 220 feet from shore.

Administrative Law Judge Feldman concluded that the

claimant was injured over a proper situs according to Sec-

tion 3(a) and was engaged in maritime employment accord-

ing to Section 2(3). He concluded that Claimant McNulty

had established a prima facie case for status, although he

appears to have deemed the Section 20(a) presumption in-

applicable. Perini has appealed.

A35

Appendix C

Although the primary issue in each ease is that of mari-

time employment, we must at the outset deal with the pre-

sumption under Section 20(a), 33 U.S.C. §920(a), whose

applicability was argued in several of the cases Section

20(a) provides that:

See. 20. In any proceedings for the enforcement of a

claim for compensation under this Act it shall be pre-

sumed, in the absence of substantial evidence to the

contrary—

(a) That the claim comes within the provisions of

this Act.

In Fusco, the administrative law judge did not consider

the applicability of Section 20(a). In McNulty, it appears

that the administrative law judge did not use Section 20(a)

in determining maritime employment. Rather, he concluded

that the claimant had established a prima facie case. In

Sullivan and Sedmak, the administrative law judge held

that the Section 20(a) presumption did not apply to a de-

termination of status under Section 2(3).

Claimant Sullivan and the Director, Office of Workers’

Compensation Programs, have appealed and contend in

Sullivan and Sedmak, the administrative law judges held

issues of status. We disagree and conclude that it does not

apply in the context of these cases, See Pittston Stevedor-

ing Corp. v. Dellaventura, 544 F.2d 35 (2d Cir. 1976), aff’d

sub nom. Northeast Maritime Terminal Co., Inc. v. Caputo,

432 U.S. 249 (1977) (hereinafter, Caputo/Blundo) ; Stock-

man v. John T. Clark & Son of Boston, 539 F.2d 264 (1st

Cir. 1976), cert. denied, 433 U.S. 908 (1977). Dellaventura

clearly states that the Section 20(a) presumption is in-

A36

Appendia C

applicable to “an interpretative question of general import

such as .. . [coverage under Section 3, and that the Su-

preme] Court’s decisions dealing with questions of cover-

age ... will be searched in vain for mention of the pre-

sumption.” 544 F.2d at 48. The court in Stockman came

to the same conclusion when it stated “[t]his basic inter-

pretative decision must precede any application of the pre-

sumption.” 539 F.2d at 269. Although both courts were

dealing with the Section 3 “situs” issue, “status” under

Section 2(3) also involves the threshold issue of coverage.

An earlier Second Circuit case, Overseas African Con-

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

is cited as authority to the contrary. Particular reliance

is placed on the court’s statement that “so long as any

reasonable inference from the facts supports jurisdiction

under the statutory presumption that jurisdiction may be

found.” 500 F.2d at 1296. Reliance on McMullen however

is misplaced. The Second Circuit’s later Dellaventura case,

affirmed by the Supreme Court, is clearly entitled to more

weight. Secondly, the court in McMullen also held that a

“prima facie showing of federal jurisdiction” had been

made, and thus the court did not totally rely on the Section

20(a) presumption.

We therefore decline to accept the proposition that the

Section 20(a) presumption applies to the threshold issue of

coverage, such as status under Section 2(3), in the context

of these cases. Accordingly, the determination in Sullivan

and Sedmak that the Section 20(a) presumption did not

apply to the issue of status is affirmed.

Il.

We now turn to the primary question with which we are

confronted, namely, the boundaries of coverage under the

Act.

a ee

;

A37

Appendix C

The Act clearly sets forth a test for situs under Section

3(a)! and test for status under Section 2(3), both of which

must be satisfied for coverage.’ Since these appeals focus

on the status of the claimants, we look to Section 2(3).

Section 2(3) provides in pertinent part:

(3) The term “employee” means any person engaged

in maritime employment, including any longshoreman

or other person engaged in longshoring operations, and

and harborworker including a ship repairman, ship-

builder, and ship-breaker, .. .

The claimants herein were clearly not shipbuilders, ship-

breakers, or ship repairmen. Nor could they be classified

as longshoremen or as engaged in longshoring operations.

Although Claimant Sullivan, a wire lather, on occasion

helped to unload steel used in the construction of the sub-

structure, Administrative Law Judge Feldman determined

that that did not alter the essential nature of his occupation.

We agree and add further that neither was Claimant Sul-

livan engaged in “indisputably” longshoring operations.

Viewing Claimant Sullivan’s overall activities, which has

been the standard consistently applied by the Board, see

McNeil v. Prolerized New England Co., 8 BRBS 1, BRB

1 Section 3(a) states in pertinent 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, repairing, or building a vessel.)

2 Claimants were found in each ease to have satisfied the Section

3(a) situs test, except in Sedmak in which the issue was not ad-

dressed. The findings of situs are not on appeal.

A38

Appendix C

Nos. 77-328 & 77-328A (March 20, 1978); Coppolino v. In-

ternational Terminal Operating Co., Inc., 1 BRBS 205,

BRB No. 74-136 (Dee. 2, 1974), he was a construction work-

er whose task of unloading the steel was an incidental

function to his job of constructing the substructure.

The term “harbor worker”, however, which is an occupa-

tion expressly covered by the Act, includes the occupations

of shipbuilder, shipbreaker, and ship repairman, but is not

limited thereto. Recognizing this fact, the Board, in Stewart

v. Brown & Root, Inc., 7 BRBS 356, 365, BRB No. 76-451

(Jan. 12, 1978), defined the term “harbor worker” to include

“at least those persons directly involved in the construc-

tion, repair, alterations, or maintenance of harbor facilities

(which include docks, piers, wharves and adjacent areas

used in the loading, unloading, repair or construction of

ships).” The claimants also cannot be deemed harbor work-

ers under the Stewart rule. As noted previously, all of the

claimants were involved in the construction of a substruec-

ture which was to be used as a foundation for a sewage

disposal plant. Accordingly, their employment was not re-

lated to the “construction, repair, alteration, or mainte-

nance of harbor facilities.”

It is clear that in order for any of the claimants to satisfy

the “status” test they must have been engaged in some

form of “maritime employment” other than that expressly

recognized in Section 2(3). As the Supreme Court acknowl-

edged in Caputo/Blundo, the question of maritime employ-

ment vel non is made difficult by the failure of Congress to

define it in the text of the Act or its legislative history.

432 U.S. at 265. This is due in part perhaps to the confusion

surrounding this question since the Act’s inception, as well

as to the fact that in many of the earlier cases the precise

A39

Appendix C

question before us was not in issue. See, e.g., Pennsylvania

R. Co. v. O’Rourke, 344 U.S. 334 (1953), and cases cited

therein, at 335-336. For example, in Calbeck v. Travelers

Insurance Co., 370 U.S. 114 (1962), the employees were

involved in the construction of vessels and thus the Court

focused on the Maritime but Local issue and hence situs,

rather than the maritime employment of the particular em-

ployees. Accordingly, in our attempt to ascertain maritime

employment, we must rely in part on the considerations

giving rise to the 1972 Amendments as well as those which

should be taken into account in applying the Act, which

were recently discussed by the Supreme Court in Caputo/

Blundo.

In approaching questions of status, the Supreme Court

stated in Caputo/Blundo that we should take an expansive

view of extended coverage and that the Act must be liberally

construed. 432 U.S. at 268. The Court also pointed to the

legislative history which establishes that by means of the

1972 Amendments, it was Congress’ intent to create a “uni-

form compensation system to employees who would other-

wise be covered by this Act for part of their activity,” 432

U.S. at 272, and to accommodate the Act to modern techno-

logical change. 432 U.S. at 270. The Court however tem-

pered these considerations by quoting other portions from

the committee reports to the effect that the committee did

not intend to cover employees not engaged in loading, un-

loading, repairing, or building a vessel just because they are

injured over a covered situs. 432 U.S. at 266, n.27. More-

over, the Court favorably cited Stockman v. John T. Clark

& Son of Boston, 539 F.2d 264, 4 BRBS 304 (1st Cir. 1976),

cert, denied, 433 U.S. 908 (1977). Caputo/Blundo, id. at

277, n.40, 281. In Stockman, the First Cireuit examined the

Act’s legislative history and concluded that

A40

Appendix C

{the statement in the committee reports that the Act

is to apply to employees who would be covered for

part of their activity] as well as other parts of the

committee reports, indicates that Congress, in moving

shoreward, did not see itself as including under the Act

whole new groups and classes of employees. Coverage

was still to be geared only to persons who loaded and

unloaded vessels (or else repaired or built them) and

who fit such traditional maritime designations as long-

shoreman, harbor worker and the like.

Stockman, id. at 276.

In view of the foregoing, it is clear that injury over

navigable waters in and of itself is an insufficient bench-

mark by which to ascertain maritime employment. See

Caputo/Blundo, supra; Thibodaux vy. Atlantic Richfield

Company, 580 F.2d 841, 8 BRBS 787 (5th Cir. 1978). In-

deed, the Supreme Court clearly stated in Caputo/Blundo,

432 U.S. at 264-265, that

[t]he 1972 Amendments thus changed what had been

essentially only a “situs” test of eligibility for com-

pensation to one looking to both the “situs” of the

mjury and the status of the injured. [Emphasis added.]

On the other hand, we continue to believe that the Weyer-

haeuser test’ for maritime employment under Section 2(3)

is overly restrictive. In particular, we decline to accept the

3 Weyerhaeuser Co. v. Gilmore, 528 F.2d 957, 961, 3 BRBS 140,

144 (9th Cir. 1976), cert. denied, 429 U.S. 868 (1976), (For status,

an employee’s work must “have a realistically significant relation-

ship to traditional maritime activities involving navigation and

commerce over navigable waters. . . [and specifically that] ... an

employee’s employment have a realistic relationship to the tradi-

tional work and duties of a ship’s service employment.’’)

A41

Appendix C

proposition that the maritime employment must be of a

“traditional” nature and have a “realistic relationship to

the traditional work and duties of a ship’s service employ-

ment.” 528 F.2d at 96. The continued validity of the

Weyerhaeuser test is questionable in light of Caputo/

Blundo* and the Ninth Circuit’s more recent approach to

questions of status which is in accord with Caputo/Blundo.

See Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d

137, 7 BRBS 409 (9th Cir. 1978) ; Handcor, Inc. v. Director,

Office of Workers’ Compensation Programs, 568 F.2d 143,

7 BRBS 413 (9th Cir. 1978).

Given the above considerations, we conclude that a claim-

ant’s employment must have a realistically significant re-

lationship to maritime activities involving navigation and

commerce over navigable waters in order for that employ-

ment to be deemed maritime employment under Section

2(3). Cf. Anderson v. McBroom Rig Building Service, Inc.,

5 BRBS 713, BRB No. 75-198 (April 7, 1977); Toups v.

Chevron Oil Company, 7 BRBS 261, BRB No. 76-453 (Dee.

29, 1977). Since the claimants herein were engaged in the

construction of a sewage disposal plant, their employment

did not have a realistically significant relationship to

maritime activities involving navigation and commerce over

navigable waters. It follows that the claimants were not

engaged in maritime employment pursuant to Section 2(3)

and thus are not covered under the Act. We thus agree

with the administrative law judge in Sullivan that Con-

gress did not intend that the phrase “maritime employ-

ment” include a worker in the building or construction

*In Caputo/Blundo, the Court, as noted above, acknowledged the

Congressional intent to accommodate the Act by means of the 1972

Amendments to modern technological change. 432 U.S. at 270.

A42

Appendix C

trades performing his usual function in the erection of any

structure that happened to be situated upon navigable

waters. To conclude otherwise would be to include under

the Act a whole new group or class of employees not orig-

inally intended to be covered. Furthermore, to provide

coverage to workers under the Act based solely upon injury

over navigable water without regard to their individual

status would be tantamount to the establishment of dual

standards in the determination of jurisdiction. One stan-

dard for workers injured over navigable water and yet

another for workers injured shoreside, The result is simply

untenable.

The Director argues that all construction over navigable

waters is maritime employment within the meaning of Sec-

tion 2(3). As we noted above, the Act now requires that

the tests of “situs” and “status” both be satisfied in order

for an individual to be covered. To hold that any employ-

ment over navigable waters is sufficient for coverage would

be to read out of the Act the “status” test, which we are not

at liberty to do. We note further that two of the claimants

were described as dock workers. Nevertheless, the label

put upon an employee’s activity or occupation is not dis-

positive of a determination of status. See Jacksonville

Shipyards, Inc. v. Perdue, 539 F.2d 533, at 541, 4 BRBS

482, at 488 (5th Cir. 1976), vacated and remanded, 433 U.S.

904 (1977), reaffirmed, 575 F.2d 79, 8 BRBS 468 (5th Cir.

1978). The Board’s earlier Decision in Sharp v. Pacific

Gas & Electric Company, 2 BRBS 381, BRB Nos. 75-170 &

75-170A (Oct. 30, 1975), is also used as authority to the

contrary. To the extent that Sharp is inconsistent with our

determination in these cases, it is overruled.

Further discussion however is in order. In Stewart v.

Brown & Root, Inc., 7 BRBS 356, BRB No. 76-451 (Jan.

a a ee ee eee

A43

Appendix C

12, 1978), we stated inter alia that if an employee was

covered under the Act prior to the 1972 Amendments, the

employee would similarly be covered after the amendments.

See also, Joyner v. Brown & Root, Inc., 7 BRBS 608, BRB

Nos. 76-471 & 76-471A (Jan. 12, 1978). Upon reconsidera-

tion in light of the standards enunciated in this case, we

have concluded that pre-amendment case law serves as a

useful framework in which to ascertain maritime employ-

ment but that it is not controlling. Compare Stewart v.

Brown & Root, Inc., supra, with Weyerhaeuser Co. v. Gil-

more, supra. This is particularly so since under pre-amend-

ment law,

. so long as a work-related injury occurred on nav-

igable waters and the injured worker was not a member

of a narrowly defined class, the worker would be

eligible for federal compensation provided that his or

her employer had at least one employee engaged in

maritime employment, [HMmphasis added. ]

Caputo/Blundo, 432 U.S. at 264. Thus, it is clear that

coverage of claimants in pre-amendment cases did not

necessarily depend on the individual claimant’s work ac-

tivity. See Pennsylvania R. Co. v. O’Rourke, 344 U.S. 334,

339-342 (1953). Consequently, all employees who were

injured over pre-amendment navigable waters were not

necessarily covered pre-amendment; if the employee was

not employed by a statutory employer pursuant to Section

2(4), 33 U.S.C, §902(4) (1970 ed.), there was no coverage.

See Calbeck v. Trav<clers Insurance Co., 370 U.S. 114, 117,

n.4 (1962). However, in view of our determination that

pre-amendment law is not controlling, we need not further

address the issue.

A44

Appendix C

Therefore, the Decisions and Orders of the administra-

tive law judges in Sullivan and Sedmak are affirmed. The

Decisions and Orders in Fusco and McNulty are reversed.

/8/ Samueu J. Smitru

SaMvueu J. Smiru, Chairman

I Concur:

/s/ IsMeNne M. Kataris

IsMene M. Kauaris, Member

Dated this 30th day

of November, 1978.

Mier, dissenting:

I respectfully but strongly dissent from my colleagues’

holding that the claimants in these eases are not covered

because they were not engaged in maritime employment.

In reaching this conclusion, not only has the majority

ignored numerous prior decisions of this Board that in-

juries sustained by employees over navigable waters’ are

covered under the Act, but also the clearly stated intent of

Congress that all employees who would have been covered

prior to the amendments would continue to be covered.

Finally, my colleagues have ignored the long standing

policy that the Act is to be liberally construed to carry

out its beneficent purposes.

The rule that the Act is to be liberally construed finds

expression in Section 20(a) of the Act, 33 U.S.C. §920(a),

that in any proceeding for enforcement of a claim for

* “Navigable waters” in this dissent refers to pre-amendment

navigable waters.

A45

Appendiz C

compensation it shall be presumed in the absence of sub-

stantial evidence to the contrary that the claim comes

within the provisions of the Act.

My colleagues have rejected the presumption as being

inapplicable to these proceedings and rely on Pittston

Stevedoring Corp. v. Dellaventura, 544 F.2d 35 (2d Cir.

1976), aff’d on other grounds, Caputo/Blundo, imfra, at

pg. 7 and Stockman v. John T. Clark & Son of Boston,

539 F.2d 264 (1st Cir. 1976). However my colleagues have

failed to perceive an essential distinction between those

eases and the cases at bar. In Dellaventura and Stock-

man, the issue was the extent to which the 1972 amend-

ments to the Act extended coverage to land-based em-

ployees. Until the 1972 amendments, the Act had been

limited to injuries on the navigable waters, which included

dry docks and marine railways. In the cases herein, the

injuries were all sustained in an area which has historically

and constitutionally’ been an area of Federal jurisdiction.

Thus, in earlier cases both by the Supreme Court, Car-

dillo v. Liberty Mutual Insurance Co., 330 U.S. 469 (1947),

and the Second Cireuit (which decided Dellaventura,

supra), Overseas African Construction Corp. v. McMullen,

500 F.2d 1291 (2d Cir. 1974); Michigan Mutual Liability

Co. v. Arrien, 344 F.2d 640 (2d Cir. 1965), the Section 20

presumption was held to apply.

In fact, the Second Cireuit held in McMullen “that so

long as any reasonable inference from the facts supports

jurisdiction under the statutory presumption that juris-

diction may be found.” 500 F.2d, at pg. 1296. The Second

Circuit repeated that rule in Dellaventura and went on

to say:

* See discussion on maritime and admiralty jurisdiction, infra,

at p. 9.

A46

Appendia C

[H]ere the question is not whether a line established

by Congress is sufficiently elastic to include the claim-

ant. The main issue is whether Congress placed the

line at the ‘point of rest’ or much further landward.

Only if we have made the latter basic decision might

the presumption come into play in ruling on cases

near the border.

544 F.2d, at pg. 48.

In Stockman, the First Cireuit perceived the issue in

the case in the same manner as the Second Circuit. Since

Congress drew no new lines seaward of the Jensen line,

[see infra, pg. 10] coverage may reasonably be inferred.

In Davis v. Department of Labor and Industries, 317

U.S. 249, 256 (1942), the Supreme Court said:

Where there has been a hearing by the federal ad-

ministrative agency entrusted with broad powers of

investigation, fact finding, determination, and award,

our task proves easy. There we are aided by the pro-

visions of the federal act, 33 U.S.C. §920, which pro-

vides that in proceedings under that act, jurisdiction

is to be ‘presumed, in the absence of substantial evi-

dence to the contrary.’ [Emphasis added.]

Accordingly, I would hold, that when a case arguably

falls within the jurisdiction of the Act, the Section 20 pre-

sumption will apply and unless there is substantial evi-

dence to overcome the presumption the claim comes within

the provisions of the Act. As all of the cases herein argu-

ably fall within the Act’s jurisdiction, I would find each

of the claimants covered. However, even if there were no

statutory presumption each of the claimants are entitled

to benefits as I will clearly demonstrate.

A47

Appendia C

The majority has concluded that to come within the Act’s

coverage “a claimant’s employment must have a realis-

tically significant relationship to maritime activities in-

volving navigation and commerce over navigable waters.”

The majority finds support in Anderson v. McBroom Rig

Building, Service, Inc., 5 BRBS 7138, BRB No. 75-198

(April 7, 1977), and Toups v. Chevron Oil Company, 7

BRBS 261, BRB No. 76-453 (Dec. 29, 1977), both of which

denied coverage to oil and gas field roustabouts who were

injured on man-made islands. What the majority failed to

note in relying on these cases was that the Supreme Court

in Rodrigue v. Aetna Casualty Co., 395 U.S. 352, at 364-365

(1969),? had held that such man-made islands were exten-

sions of the state. Thus, the injuries sustained in Anderson

and Toups were to land based employees and accordingly

their status as “maritime employees” under the 1972

amendments, which extended coverage to certain classes

of land based employees, had to be determined. The facts

involved in the Toups and McBroom cases and the law

applicable to land based injuries have no relationship to

the issue of coverage for injuries sustained on navigable

waters and are therefore clearly distinguishable.

III

Nevertheless, the majority has elected to construe the

1972 amendments in a manner which restricts coverage

under the 1972 amendments to persons injured over the

3The Rodrigue ease involved deaths on artificial island drilling

rigs located on the Outer Continental Shelf which the Court held

were not within the general admiralty jurisdiction. Anderson and

Toups were injured on similar structures within state territorial

waters.

A48

Appendia C

navigable waters in the same manner as to persons injured

on land. In so doing, they rely on Northeast Marine Ter-

minal Co., Inc. v. Caputo, 432 U.S. 249 (1977) (hereinafter

Caputo/Blundo), which in their view supports their con-

struction of the 1972 amendments. They do so despite the

intention expressed by Congress that:

Section 2(a) amends section 2(3) of the Act to de-

fine an “employee” as any person engaged in maritime

employment. The definition specifically includes any

longshoreman or other person engaged in longshoring

operations, and any harborworker, including a ship

repairman, shipbuilder and shipbreaker. Jt does not

exclude other employees traditionally covered but re-

tains that part of 2(3) which excludes from the defini-

tion of “employee” masters, crew members or persons

engaged by the master to unload, load or repair vessels

of less than eighteen tons net. [Emphasis added. ]

S Rep at 16, HR Rep at 14.

Although Congress retained certain exceptions to cover-

age, such as masters, crew members, and persons engaged

to load, unload, or repair vessels of less than eighteen

tons, it explicitly noted those exceptions. The legislative

intent not to exclude employees traditionally covered is

therefore plain.‘

In any event, to rely on Caputo/Blundo to deny coverage

to these claimants is to ignore the language of the Supreme

‘Until recently, that has been accepted by the Board. See, c.g.,

Stewart v. Brown & Root, Inc., 7 BRBS 356, 358-360, BRB No.

76-451 (Jan. 12, 1978); Nelson v. Warren Brothers, 7 BRBS 627,

632, BRB Nos. 76-414 and 76-414A (Jan. 24, 1978); Hed v.

Duncanson-Harrelson Co., 7 BRBS 821, 826, BRB No. 77-260

(Feb. 24, 1978); Hatchett v. Duncanson-Harrelson Co., 8 BRBS

173, 174, BRB No. 77-487 (April 24, 1978).

A49

Appendix C

Court in that decision. The opening paragraph sets forth

the issue involved:

In 1972 Congress amended the Longshoremen’s and

Harbor Workers’ Compensation Act, (LHWCA) 33

U.S.C. §901 et seq. in substantial part to ‘extend [the

Act’s] coverage to protect additional workers.’ 8S. Rep.

No. 92-1125, 92 Cong. 2d Sess. (1972) In these con-

solidated cases we must determine whether respon-

dents Caputo and Blundo, injured while working on

the New York City waterfront, are entitled to compen-

sation. To answer that question we must determine

the reach of the 1972 amendments. [Emphasis added. ]

432 U.S., at pgs. 251-252.

Caputo/Blundo, as the case indicates, involved claimants

who would have been considered land based employees

prior to the amendments and who were brought under the

Act’s coverage by the 1972 amendments. As the Court

pointed out:

This case also does not involve the question whether

Congress excluded people who would have been cov-

ered before the 1972 Amendments; that is, workers

who are injured on navigable waters as previously

defined, [Citation omitted.] [Emphasis added.]!°)

432 U.S., at pg. 265, n.25.

For a better understanding of which employees were tra-

ditionally covered under the Act prior to the 1972 amend-

(5} Tt is important to note that the Supreme Court recognized

that coverage under the Act prior to the amendments merely

required that an employment related injury occur on the ‘navigable

waters’ as that term was understood prior to the amendments.

A50

Appendia C

ments, a short history of the development of the maritime

law in the United States will be helpful.

Article Ili, Section 2, of the Constitution, extends the

judicial power of the United States “to all cases of admi-

ralty and maritime jurisdiction.”

Mr. Justice Story fully explored the scope of the mar-

itime and admiralty jurisdiction in the case of De Lovio

v. Boit, et al., 7 Fed. Cas. 418 (C.C.Mass. 1815). He con-

cluded that “they include jurisdiction of all things done

upon and relating to the sea, or, in other words, all trans-

actions and proceedings relative to commerce and naviga-

tion, and to damages or injuries upon the sea.” De Lovio,

supra, at pg. 441. Mr. Justice Story further said:

On the whole, I am, without the slightest hesitation,

ready to pronounce, that the delegation of cognizance

of ‘all civil cases of admiralty and maritime juris-

diction’ to the courts of the United States comprehends

all maritime contracts, torts, and injuries. The latter

branch is necessarily bounded by locality; the former

extends over all contracts, (wheresoever they may be

made or executed or whatsoever may be the form of

the stipulations.) which relate to the navigation, busi-

ness or commerce of the sea. [Emphasis added. ]

De Lovio, supra, at pg. 444.

Thus, it can be seen that from the earliest days the admi-

ralty and maritime delegation by the Constitution has been

interpreted as broad enough to encompass all injuries upon

the navigable waters. Mr. Justice Story had earlier stated

his view as to maritime jurisdiction in tort matters in

Adl1

Appendia C

Thomas v. Lane, 23 Fed. Cas. 957, 960 (C.C.Me. 1813), a

view adopted and expanded upon by the Supreme Court

in The Plymouth:

‘In regard to torts I have always understood that the

jurisdiction of the admiralty is exclusively dependent

upon the locality of the act. The admiralty has not,

and never, I believe, deliberately claimed any jurisdic-

tion over torts, except such as are maritime torts, that

is torts upon the high seas or on waters within ebb

and flow of the tide.’ Since the case of the Genesee

Chief, 12 How. 443, navigable waters may be substi-

tuted for tide waters. This view of the jurisdiction

over maritime torts has not been denied. [Emphasis

added. |

The Plymouth, 70 U.S. (3 Wall) 20, 33, 18 L.Ed. 125, 128

(1865).

It is interesting to note that Mr. Justice Story equated

tort upon the navigable waters with the term ‘maritime

tort.’ It is my opinion that Congress intended that the term

‘maritime employment’? be equated with employment on

navigable waters.

In Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 60

(1914), the Supreme Court stated:

[E]very species of tort, however occurring, and

whether aboard a vessel or not, if upon the high seas

or navigable waters, is of admiralty cognizance.

In 1917, the Supreme Court in the case of Southern

Pacific Co. v. Jensen, 244 U.S. 205 (1917), held that the

states could not constitutionally extend a compensation

remedy to maritime workers since coverage by each state

A52

Appendia C

would interfere with the uniformity and harmony of the

general maritime law.‘

Because of the Jensen case and its progeny, longshore-

men and other harbor workers injured on navigable waters

were left without any remedy under state compensation

acts while their fellow workers injured on land were cov-

ered by state law. It was for this reason that Congress

enacted the Longshoremen’s Act. See, Caputo/Blundo,

supra, at pg. 256.

However, in the period between Jensen (1917) and the

Longshoremen’s Act (1927), the Supreme Court began to

retreat from its Jensen decision and established what be-

came known as the ‘maritime but local’ doctrine. It held

that some matters, though maritime in nature, were of local

concern, and thus permitting local regulation would work

no prejudice to the general maritime law. Grant Smith-

Porter Ship Co. v. Rohde, 257 U.S. 469 (1922).

The Rohde case involved a claim for damages in admi-

ralty by an employee (a carpenter) of a shipbuilding con-

cern. He was working aboard a vessel which had been

launched but was not ready for delivery at the time he

sustained his injury. At the time, the State of Oregon

had a workmen’s compensation law in effect which gave

both employers and employees the option to accept or

reject the law; if notice was not given to reject the law,

it was applicable. Neither the employee nor the employer

rejected the law.

The Ninth Circuit certified two questions to the Supreme

Court:

®‘ Later attempts by Congress to permit the several states to

cover such employees were overturned by the Supreme Court. See

Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920) and Wash-

ington v. W.C. Dawson & Co., 264 U.S. 219 (1924).

A53

Appendia C

1. Is there jurisdiction in admiralty because the al-

leged tort occurred on navigable waters?

2. Is libellant entitled because of his injury to pro-

ceed against respondent in admiralty for the damages

suffered?

257 U.S., at pg. 475.

The Supreme Court found that the contract for building

the vessel was non-maritime and that neither the employee’s

general employment, nor his activities at the time had any

direct relationship to navigation and commerce."

It held that:

[A]s both parties had accepted and proceeded under

the statute by making payments to the Industrial Acci-

dent Fund it cannot properly be said that they con-

sciously contracted with each other in contemplation

of the general system of maritime law.

257 U.S., at pgs, 475-476.

However, the Court said:

[C]onstruing the first question as meaning to inquire

whether the general admiralty jurisdiction extends to a

proceeding to recover damages resulting from a tort

committed on a vessel in process of construction when

lying on navigable waters within a State, we answer,

yes.

257 U.S., at pgs. 477-478.

Thus, although the Court found that the contract for

construction of the ship was non-maritime, it found that

7I emphasize the Court’s language because it becomes important

in the determination of Congressional intent in enacting the 1972

Amendments which will be dealt with later.

A54

Appendix C

the injury sustained by claimant on navigable waters came

within the general admiralty jurisdiction. Nevertheless,

the Court found that to allow the claim to proceed under

the state workmen’s compensation law would not adversely

affect the uniformity of the general maritime law and with

it adopted the ‘maritime but local’ doctrine.®

By the time of the Act’s enactment in 1927, the ‘maritime

but local’ rule had become well established in the law.’

However, this rule created problems for both employers

and employees who could never be certain as to which law

controlled. The Supreme Court, to resolve the dilemma,

discussed what it referred to as “a twilight zone in which

the employees must have their rights determined case by

ease.” Davis v. Department of Labor and Industries, 317

U.S. 249, 256 (1942).

In that case, the employee, a structural steel worker, was

drowned while engaged in dismantling a bridge over a

river. His duties were to cut sections of steel from the

bridge which sections were then lowered into a barge. He

also worked on the barge, examining the sections of steel,

and, when necessary, cutting them to proper length,

The State of Washington Compensation Act provided

coverage to employees “engaged in maritime occupations

for whom no right or obligation exists under the maritime

laws.” Davis, id. at pg. 252. The Court permitted the state

act to apply relying on the presumption of constitutionality,

although it was clear that had the claim been brought

® At the time the Supreme Court adopted the ‘maritime but

local’ doctrine there was no federal compensation law in effect.

® See Miller’s Indemnity Company v. Braud, 270 U.S. 59 (1926) ;

See also Alaska Packers Association v. Industrial Accident Com-

mission, 276 U.S. 467 (1928), and cases cited therein, at pg. 469.

A5d

Appendix C

under the federal act, and an award been made, that award

would have been sustained.

The Court in Davis referred back to Parker v. Motor

Boat Sales, 314 U.S. 244 (1941), stating that in Parker

“We held that Congress has by the Longshoremen’s Act

accepted the Jensen line of demarcation between state and

federal jurisdiction.” 317 U.S., at pg. 256. That case in-

volved an employee who generally worked as a janitor for

a motor boat company who was sent out in a test run of

a boat where he was to keep a lookout for hidden objects.

The Court, in Parker, found that coverage under the Act

was proper and held that the nature of his regular em-

ployment, as a janitor, was not important but that “habit-

ual performance of other and different duties on land

cannot alter the fact that at the time of the accident he

was riding in a boat on a navigable river and it is im con-

nection with that clearly maritime activity that the award

was made.” (Emphasis added.) 314 U.S., at pg. 247.

The Parker case was again cited by the Supreme Court

in Pennsylvania Ry. Co. v. O’Rourke, 344 U.S. 334 (1953).

In O’Rourke, the issue was whether a railroad brakeman

injured while on a barge on navigable waters could bring

on action under the Federal Employers’ Liability Act, 45

U.S.C. §951 et seq.

The Supreme Court traced the history of the law from

Jensen to the enactment of the Longshore Act and said:

This act and the Jones Act provided means for in-

demnification for injuries of all maritime employees

who were beyond the constitutional reach of state

legislation. A quarter of a century of experience has

not caused Congress to change the plan. The “Jensen

line of demarcation between state and federal juris-

diction” has been accepted. [Citing Davis, supra].

AS6

Appendix C

New Jersey could not have enacted statutes granting

compensation for respondent’s injury on navigable

waters. Therefore respondent comes within the cover-

age of that portion of §903(a) that includes those

outside the reach of state compensation laws. [Em-

phasis added. |

344 U.S., at pg. 337.

The Court, concluding that the employee was engaged

in maritime employment, held that the Court of Appeals,

which found him not to be engaged in maritime employ-

ment within the meaning of the Act, was in error. The

Court said that the Act does not require both injury on

navigable waters and maritime employment.

However, a close reading of the Court’s analysis indi-

cates that it meant an employee did not have to be engaged

in “traditional maritime employment” to come under the

Act’s coverage. At pg. 341, the Court said:

[T]he result in Parker, as well, is totally inconsistent

with any “duties test.” Armistead, the employee

there, was a janitor with the motor boat company.

He had been ordered to ride in one of the boats dur-

ing a test trip in order to keep a lookout for hidden

objects. 314 U.S. at page 246, 62 S.Ct. at page 223.

Compensation under the Harbor Workers’ Act could

not have been paid in connection with his death if we

were to test its applicability by the nature of his regu-

lar work. A number of lower court cases are in simi-

lar vein. Those we collect in the margin deal with

various types of construction and service workers,

obviously not themselves engaged in traditional “mari-

time employment,” if one were to look solely to the

A57

Appendia C

particular type of job they were engaged for. [Foot-

note omitted. ]

The Court was obviously making a distinction between

‘traditional maritime employment’ and employment over

navigable waters which constituted maritime employment,

since it began its discussion of the Act by noting that it

“provided means for indemnification for injuries for all

maritime employees who were beyond the constitutional

reach of state legislation.” (Emphasis added.)

This distinction was recognized by the four dissenting

justices when they said:

Was it maritime employment to get these cars off the

car float or was it railroad employment? If this rail-

road employee had been doing his braking job on

land, no one would have thought he was engaged in

anything but railroad employment. Does it become

maritime employment because it happened over navi-

gable waters? We think not. The place is the only

thing that differentiates the situations. Place is ad-

mittedly not enough to make what is braking on land

other than braking when done over navigable waters.

Not only must we look to the place where the accident

happened, but of equal importance is the nature of

the employment. The nature of the employment is

certainly not maritime, It was an ordinary railroad

chore, done by an ordinary railroad brakeman. If this

were not so, the train crews on trains being ferried

across navigable streams in the United States would

be employed in maritime service. With the imagina-

tion of the Court’s opinion, a train crew, while cross-

ing a stream, would be employed in maritime service.

344 U.S., at pgs. 342-343.

A58

Appendix C

In any event, the Supreme Court later concluded that

irrespective of the ‘maritime but local’ rule, all employees

injured in the course of their employment while over navi-

gable waters were within the Act’s coverage. Calbeck v.

Traveler’s Insurance Company, 370 U.S. 114 (1962). The

Court emphasized that:

[t]here emerges from the complete legislative history

a Congressional desire for a statute which would pro-

vide Federal Compensation for all injuries to employ-

ees on navigable waters; in every case, that is, where

Jensen might have seemed to preclude State Compen-

sation. The statute’s framers adopted this scheme

because they meant to assure the existence of a com-

pensation remedy for every such injury, without leav-

ing the employees at the mercy of the uncertainty,

expense, and delay of fighting out in litigation

whether their particular cases fell within or without

state Acts under the “local concern” doctrine. [Em-

phasis added. |

370 U.S., at pgs. 120-122. The Court concluded that:

[I]n sum, it appears that the Longshoremen’s Act was

designed to assure that a compensation remedy ex-

isted for all injuries sustained by employees on navi-

gable waters, and to avoid uncertainty as to the source,

state or federal, of that remedy.

370 U.S., at pg. 124.

Accordingly, although an employee who was injured

during his employment over navigable waters, i.e., a mar-

itime employee, might previously have been excluded from

coverage under the Act due to the ‘maritime but local’

A59

Appendia C

doctrine, Calbeck declares that coverage is provided for

all injuries to employees on navigable waters. It is there-

fore clear that the employees traditionally covered were

those employees who sustained injuries in the course of

their employment over navigable waters.

The Supreme Court thereafter held that coverage under

the Act stopped at the water’s edge and said “[T]he invi-

tation to move that line must be addressed to Congress,

not to this Court.” Nacirema Operating Company v. John-

son, 396 U.S. 212, 224 (1969). See also Victory Carriers

Inc. v. Law, 404 U.S. 202, 216 (1971).

That line was moved landward by the 1972 amendments.

However, it can be seen from the foregoing that, at the

time of the 1972 amendments, all injuries on navigable

waters were within the Act’s coverage except those cases

specifically excluded by Subdivisions (1) and (2) of Sec-

tion 903(a), 33 U.S.C. §903(a)(1) & (2).

We now turn to congressional intent in the enactment

of the 1972 amendments. In doing so we find two things

are certain. First, at least since Calbeck, supra, all in-

juries to employees injured on navigable waters have been

within the Act’s cognizance. Second, at the time of enact-

ment of the 1972 amendments, the admiralty and maritime

jurisdiction was believed to encompass all claims for in-

juries occurring on the navigable waters.

In Victory Carriers, Inc. v. Law, 404 U.S. 202, 205-206

(1971), one of the decisions’® leading to the Act’s amend-

ments, the Supreme Court said:

1° See Nacirema Operating Co. v. Johnson, supra.

A60

Appendix C

The historic view of this Court has been that the mar-

itime tort jurisdiction of the federal courts is deter-

mined by the locality of the accident and that maritime

law governs only those torts occurring on navigable

waters of the United States. Maritime contracts are

differently viewed.”

At pg. 206, the Court stated:

The maritime law was thought to reach [E]very

species of tort, however occurring, and whether on

board a vessel or not if upon the high seas or nav-

igable waters . . . Atlantic Transport Company V.

Imbrovek, 234 U.S. 52 (1914). But accidents on land

were not within the maritime jurisdiction. ...

The Court denied a claim for unseaworthiness and neg-

ligence under the general maritime law for a longshore-

man injured on a pier holding that state law was applicable.

It concluded:

[I]f denying federal remedies to longshoremen in-

jured on land is intolerable, Congress has ample power

under Arts. I and III of the Constitution to enact a

suitable solution.

404 U.S. at pg. 216.

11 Although workers’ compensation is not based on any tort lia-

bility, being a form of liability without fault, and has been con-

sidered a hybrid of tort and contract, every injury sustained on

navigable waters may give rise to a claim under the general

maritime laws. Thus, In re Motor Ship Pacific Carriers, 489 F.2d

152, 156 (5th Cir. 1974), held that:

It should be noted that in attempting to determine exactly

what constitutes a tort for maritime jurisdictional purposes

the courts have generally made ‘tort’ synonymous with injury.

[Emphasis added. ]

A61

Appendix C

Congress is presumed to have had knowledge of the law

as it had been interpreted when it amended the Act.” See

Morisette v. United States, 342 U.S. 246 (1952); Shapiro

v. United States, 335 U.S. 1 (1948); Baptiste v. Govern-

ment of Virgin Islands, 529 F.2d 100 (8rd Cir. 1976). Ac-

cordingly, all injuries sustained by employees on navigable

waters are within the Act’s coverage.

Th.ce years after Nacirema, supra, and one year follow-

ing Victory Carriers v. Law, supra, Congress addressed

these problems and passed the 1972 amendments. The

primary intent of the amendments was to increase federal

benefits to employees covered under the Act and to pre-

vent the bifureated coverage with which maritime em-

ployees had to contend. Caputo/Blundo, 432 U.S., at pgs.

261-264. With respect to coverage, Congress expanded

shoreside the covered ‘situs’ under Section 3(a)** and added

the ‘status’ requirement under Section 2(3)'* as a limit to

coverage for that shoreside area. The foregoing is amply

supported by a reading of both the House and Senate

Committee Reports, which are identical:

_ 7 In fact, the Calbeck decision which extended coverage to all

injuries on navigable waters was before Congress in its entirety

when it was considering the 1972 amendments. See Hearings on

S. 2318, et al. before the Subcommittee on Labor of the Senate

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

p. 560 et seq.

” Section 3(a), 33 U.S.C. §903(a), now provides coverage for

injuries sustained

a 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 ail in loading, unloading, repairing, or building a

vessel).

‘"* For the text of Section 2(3), 33 U.S.C. §902(3), see page 9

of majority decision. |

A62

Appendix C

EXTENSION OF CovERAGE TO SHORESIDE AREAS

The present Act, insofar as longshoremen and ship

builders and repairman are concerned, covers only in-

juries which occur “upon the navigable waters of the

United States.” Thus, coverage of the present Act

stops at the water’s edge; injuries occurring on land

are covered by State Workmen’s Compensation laws.

The result is a disparity in benefits payable for death

or disability for the same type of injury depending on

which side of the water’s edge and in which State the

accident occurs.

To make matters worse, most State Workmen’s Com-

pensation laws provide benefits which are inadequate;

even the better State laws generally come nowhere

close to meeting the National Commission on State

Workmen’s Compensation Laws recommended stan-

dard of a maximum limit on benefits of not less than

200% of statewide average weekly wages. The follow-

ing are the maximum limits on the compensation pay-

able for permanent total disability in some maritime

States:

IN, ik csv enicashictcds manana aaa $70.00

TI asiescisaninh crtaileceniantaiesvvciearaiedenoeaiai 56.00

WHIIOIET «..s/::s:scncesinssshiaeusnniieatantatnasteesmaniaananaeamaaiaiael 112.50

iD 5. scintsisnessicnamidanioneneasenemanane 49.00

III aacaicssiscsiecsnsesroninivvstcsiitsinsindarscmmmennaeeandian 85.68

I oc iscnecctarescnanetctteernrcmntoimens ». Tae

PRO TIT sscesecesesinsccansnsaniomcbens sdvcipcuiniieaiseaaolal 101.00

eee TE vvsscicteiscce-tnctieadecia eee 80.00

CU iscsi ciccciestiecteecte neering 62.50

PRT W III, ecsnctcccnseieiteenninsinerntiomasommanpincnnniiinan 60.00

SI. ..cccieliiscceedesnitnsioniemnienstnsenaeaiapenaneiniaeiaaialia 49.00

1Plus $6 for each dependent.

A63

Appendia C

Also, under the laws of some states due to exemp-

tions based upon the number of employees hired some

workers might be uncovered in the event they are un-

fortunate victims of an injury.

It is apparent that if the Federal benefit structure

embodied in Committee bill is enacted, there would be

a substantial disparity in benefits payable to a per-

manently disabled longshoreman, depending on which

side of the water’s edge the accident occurred, if State

laws are permitted to continue to apply to injuries

occurring on land. It is also to be noted that with the

advent of modern cargo-handling techniques, such as

containerization and the use of LASH-type vessels,

more of the longshoreman’s work is performed on land

than heretofore.

The Committee believes that the compensation pay-

able to a longshoreman or a ship repairman or builder

should not depend on the fortuitous circumstance of

whether the injury occurred on land or over water.

Accordingly, the bill would amend the Act to provide

coverage of longshoremen, harbor workers, ship re-

pairmen, ship builders, shipbreakers, and other em-

ployees engaged in maritime employment (excluding

masters and members of the crew of a vessel) if the

injury occurred either upon the navigable waters of

the United States or any adjoining pier, wharf, dry

dock, terminal, building way, marine railway, or other

area adjoining such navigable waters customarily used

by as employer in loading, unloading, repairing, or

building a vessel.

The intent of the Committee is to permit a uniform

compensation system to apply to employees who would

otherwise be covered by this Act for part of their

A64

Appendia C

activity. To take a typical example, cargo, whether

in break bulk or containerized form, is typically un-

loaded from the ship and immediately transported to

a storage or holding area on the pier, wharf, or ter-

minal adjoining navigable waters. The employees who

perform this work would be covered under the bill for

injuries sustained by them over the navigable waters

or on the adjoining land area. The Committee does

not intend to cover employees who are not engaged m

loading, unloading, repairing, or building a vessel, just

because they are injured in an area adjoining navigable

waters used for such activity. Thus, employees whose

responsibility is only to pick up stored cargo for fur-

ther trans-shipment would not be covered, nor would

purely clerical employees whose jobs do not require

them to participate in the loading or unloading of

cargo. However, checkers, for example, who are di-

rectly involved in the loading or unloading functions

are covered by the new amendment. Likewise the Com-

mittee has no intention of extending coverage under

the Act to individuals who are not employed by a per-

son who is an employer, i.e. a person at least some of

whose employees are engaged, in whole or in part, in

some form of maritime employment. Thus, an indi-

vidual employed by a person none of whose employees

work, in whole or in part, on navigable waters, 1s not

covered even if injured on a pier adjoining navigable

waters. [Emphasis added. ]

S Rep 12-13, HR Rep No. 692, 1441, pgs. 10-11 (1972).”

15 The limitation imposed was clearly intended only on activities

and employees in areas adjoining pre-amendment navigable waters.

16 } have set forth the reasons behind the amendments to extend

coverage, in full, to demonstrate the concerns of Congress with the

és

Sint Nid eh ROTC TE La tm ho

A65

Appendia C

Caputo/Blundo was the first case in which the Supreme

Court had oceasion to view coverage under the amended

Act and the Court applied the ‘situs’ and ‘status’ tests. The

ease, however, involved two shoreside employees and is not

dispositive of the question before us. Nonetheless, the

Supreme Court emphasized that

[t]he language of the Amendments is broad and

suggests that we should take an expansive view of the

extended coverage. Indeed, such a construction is ap-

propriate for this remedial legislation. The Act “must

be liberally construed in conformance with its purpose |

and in a way which avoids harsh and incongruous re-

sults.” [Citation omitted. ]

Caputo/Blundo, 432 U.S., at pg. 268.

Therefore, it is incongrous for the majority, which has

strictly construed the amendments to deny benefits to these

claimants and thereby relegate them to the inadequacy of

state compensation laws, to find support in Caputo/Blundo.

The majority, in total disregard of the Supreme Court’s

admonition that ‘we should take an expansive view of the

extended coverage,’ and without any support either in the

legislative history or the Act, has imposed a requirement

that a claimant’s employment bear a ‘realistically signifi-

eant relationship to maritime activities involving naviga-

tion and commerce over navigable waters.’

disparity of benefits between longshoremen, shipbuilders and re-

pairman, depending on which side of the water’s edge an injury

occurred and secondly with the inadequacy of state compensation

laws, factors noted by the Supreme Court in Caputo/Blundo.

A66

Appendix C

The definition which the majority seeks to apply to the

term ‘martime employment’ was adopted from language in

Weyerhaeuser Co. v. Gilmore, 528 F.2d 957, at 961, 3 BRBS

140, at 144 (9th Cir. 1976), cert. denied, 249 U.S. 868 (1976),

which in turn had adopted similar language from the Su-

preme Court’s holding in Executive Jet Aviation v. Cleve-

land, 409 U.S. 249, at 268 (1972).*”

In Executive Jet, the Supreme Court was faced with a

claim for damages by the owner of an aircraft which

crashed into Lake Erie. The issue was whether the claim

was cognizable in admiralty. The Court began its discus-

sion:

Determination of the question whether a tort is “mari-

time” and thus within the admiralty jurisdiction of

the federal courts has traditionally depended upon the

locality of the wrong. If the wrong occurred on nav-

igable waters, the action is within admiralty jurisdic-

tioms-: sss

409 U.S., pg. 253.

The Court then cited Mr. Justice Story’s language in

Thomas v. Lane, supra, and language from The Plymouth,

supra, that:

« | | Every species of tort however occurring, and

whether on board a vessel or not, if upon the high

seas or navigable waters, is of admiralty cognizance.”

409 U.S., pg. 254.

17 Executive Jet was decided two months after the enactment

date of the 1972 amendments and therefore could have played no

part in congressional intent as to the meaning of ‘maritime em-

ployment.’

wnaneonsill

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Appendix C

Then, citing Victory Carriers Inc. v. Law, supra, the

Court reiterated its statement that:

[t]he historic view of this Court has been that the

maritime tort jurisdiction of the federal courts is de-

termined by the locality of the accident and that mari-

time law governs only those torts occurring on the

navigable waters of the United States.

409 U.S., at pg. 254.

The Court then discussed the problems inherent in try-

ing to apply a situs test to tort cases involving aircraft

and concluded:

It is far more consistent with the history and purpose

of admiralty to require also that the wrong bear a sig-

nificant relationship to traditional maritime activity.

We hold that unless such a relationship exists, claims

arising from airplane accidents are not cognizable in

admiralty in the absence of legislation to the contrary.

409 U.S., at pg. 268.

The Court made clear throughout the decision, however,

that its decision was aimed at aviation cases and that it

was not eliminating or overruling prior law as to situs on

navigable waters as the predicate for maritime jurisdic-

tion.*®

Vil

In adopting its ‘significant relationship to maritime ac-

tivities’ definition for maritime employment the majority

13 See Edynak v. Atlantic Shipping, Inc., 562 F.2d 215, 220 (3rd

Cir, 1977), in which the court emphasized that “(T]he language

of Justice Stewart’s opinion [in Executive Jet] was strictly lim-

ited to accidents involving aircraft... .”

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Appendix C

has reasoned that “to conclude otherwise would be to in-

clude under the Act a whole new group of class of em-

ployees not originally intended to be covered.”

A simple response to the majority’s conclusion is to

quote from the Supreme Court in Caputo/Blundo, supra,

when the Court rejected an attempt to limit coverage under

the Act to land-based employees by a ‘point of rest’ theory.

The Court said:

We too reject it. A theory that nowhere appears in

the Act, that was never mentioned by Congress during

the legislative process, that does not comport with

Congress’ intent, and that restricts the coverage of a

remedial Act designed to extend coverage is incapable

of defeating our conclusion that Blundo and Caputo

are “employees.”

Caputo/Blundo, supra at pg. 278.

Similarly, the ‘significant relationship to maritime ac-

tivities’ definition for ‘maritime employment’ espoused by

the majority must also be rejected, for as stated, it nowhere

appears in the Act or the legislative history; it does not

comport with Congress’ expression of its intent not to

exclude other employees traditionally covered; and it is

being used to restrict coverage of a remedial Act that was

designed only to expand coverage. Therefore, it should

not be used as a vehicle to defeat coverage for the claim-

ants herein.

Vill

Rather than the restrictive view of ‘maritime employ-

ment’ espoused by the majority, the amendments clearly

reflect the intent of Congress to establish a much broader

view of its meaning. As discussed earlier, supra, at pgs.

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Appendix C

12-13, employees engaged in new ship construction were

not considered to be engaged in maritime employment. The

Supreme Court in the Rohde case, supra, 957 U.S., at pg.

475, said, and J again repeat the Court’s language:

The contract for constructing “The Ahala” was non-

maritime, and although the incompleted structure upon

which the accident occurred was lying in navigable

waters, neither Rohde’s general employment, nor his

activities at the time, had any direct relation to navi-

gation or commerce, {Emphasis added. ]

Thus, it can be said that the activities of employees

engaged in new ship construction have no ‘realistically sig-

nificant relationship to navigation and commerce.’ Never-

theless, Congress has specifically included these employees

within the scope of ‘maritime employment.’ Therefore, it

is reasonable to conclude that Congress intended to give

the broadest possible scope to the meaning of ‘maritime

employment’ when it used that phrase in the 1972 amend-

ments.

Further, by including shipbuilders within the scope of

‘maritime employment,’ Congress at least by implication

has rejected the requirement that the activities of em-

ployees on navigable waters bear a ‘realistically signifi-

cant relationship to navigation and commerce,’ a require-

ment that can only lead to confusion and delay in the

administration of the Act.

Neither of my colleagues has attempted to define the

standard which we, the administrative law judges, and the

deputy commissioners are expected to apply in considering

claims under the Act. This is easy to understand because

there is no uniform standard which can be applied.

The Supreme Court long ago said that:

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Appendix C

What work has direct relation to navigation or com-

merce must, of course, be determined in view of sur-

rounding circumstances as cases arise.

John Baizley Iron Works v. Span, 281 U.S. 222, at pg. 230

(1930).

In Kelly v. Smith, 485 F.2d 520, 525 (5th Cir. 1973), the

court set forth the factors to be used in making a deter-

mination as required by Executive Jet in aviation cases

and by the majority in cases involving injuries over nav-

igable waters under the Act:’

These are: the functions and roles of the parties; the

types of vehicles and instrumentalities involved; the

causation and the type of injury; and traditional con-

cepts of the role of admiralty law.

Mr. Justice Frankfurter, in his concurring opinion in

Davis v. Department of Labor and Industries, supra, said:

[A]ny legislative scheme that compensates workmen

or their families for industrial mishaps should be

capable of simple and dependable enforcement.

317 U.S., at pg. 258.

I submit that to adopt the majority’s standard of cover-

age, however it may be measured, will once again open the

floodgates of litigation on issues long since laid to rest and

will re-establish that area of confusion and uncertainty

known as the ‘twilight zone’.

19The factors set forth in Kelly v. Smith, supra, have been

adopted by the Ninth Circuit in T.J. Falgout Boats, Inc. v. United

States, 508 F.2d 855, 857 (1974) ; the Eighth Circuit in St. Hilaire

Moye v. Henderson, 496 F.2d 973, 978 and Hdynak v. Atlantic

Shipping, Inc., supra, at pg. 221.

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Appendix C

Assuming however, that my colleagues are correct and

that an employee’s duties must bear a ‘realistically signifi-

cant relationship to maritime activities including naviga-

tion and commerce,’ each of the claimants would still be

entitled to coverage under the Act.

In these four cases the claimants were all engaged in

employment over navigable waters which involved job fune-

tions and responsibilities virtually identical to those per-

formed by workers involved in the construction of docks,

piers, wharves, bridges and other structures over and upon

navigable waters. Indeed, two of the claimants were de-

scribed, and accurately I believe, as dock builders. Kach

claimant was exposed to the same type of risk and hazard

and subjected to a type of accident similar to that experi-

enced by other maritime workers over navigable waters. In

similar situations, the Board has held that the employees

were covered. See, e.g., Hed v. Duncanson-Harrelson Co.,

7 BRBS 821, BRB No. 77-260 (Feb. 24, 1978) ; Hunter v.

Duncanson-Harrelson Co., 8 BRBS 83, BRB No. 77-433

(March 30, 1978); Hatchett v. Duncanson-Harrelson Co.,

8 BRBS 173, BRB No. 77-487 (April 24, 1978).

There have also been numerous court decisions involving

the status of employees engaged in employment similar to

that of the employees herein. The issue in those cases are

not whether the particular employee was engaged in mari-

time employment, but whether he was a seaman within the

Jones Act,?° or entitled to sue on an admiralty claim for

unseaworthiness of the vessel.

The case most pertinent to the issue at hand is that of

Stafford v. Perini Corp., 475 F.2d 507 (1st Cir. 1973), since

2046 U.S.C. §688 which gives a member of a crew a cause of

action for negligence.

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Appendix C

Perini Corp is one of the members of the joint venture

known as Perini North River Associates, the employer in-

volved in these proceedings. (See Transcript in Sedmak

at pg. 25).

That case involved a claim under the Jones Act and

under the general maritime law for unseaworthiness. The

Court described the facts involved as follows:

At the time of the accident, Stafford was employed as

a dock-builder in Perini Corporation, which was then

engaged in the construction of the Newport Bridge in

Rhode Island. One of Stafford’s principal duties in

this capacity was to build and repair certain “forms”

which were used for the pouring of concrete in erect-

ing the piers of the bridge. This work was generally

done on the deck of a barge owned by Perini (Scow

101), which was located about two miles offshore in

Narragansett Bay. The barge also served as a storage

area for various materials and carried a large crane

which was used for the purpose of lifting the forms

back and forth from the deck to the piers. In addition

to building and repairing the forms, Stafford did vari-

ous construction work on the piers themselves and also

assisted in moving the barge from one site to another

by handling its mooring and towing lines.”!

475 F.2d, at pg. 509.

Perini argued on appeal that the employee did not qual-

ify as a member of the crew. The Court of Appeals affirmed

a judgment in favor of the employee, stating:

We cannot agree with this assessment of the evidence.

Contrary to appellant’s assertion that plaintiff’s work

21 Compare description of duties of Stafford to those of claim-

ants herein.

A73

Appendix C

was done almost exclusively on the piers, the record

clearly indicates that a significant part of his job was

to build and renovate the forms used in connection

with the pier’s construction. According to appellant’s

own witness, this work was done on the deck of Scow

101. There was also testimony that on the day of the

accident, Stafford spent at least four hours on board

the barge. In light of this evidence, we cannot say, as

a matter of law, that plaintiff did not perform a sub-

stantial part of this work on Scow 101. Moreover,

since one of the primary functions of the vessel was

apparently to provide a work area for the construction

of the forms, it is clear that Stafford’s duties directly

related to the performance of its mission. The question

as to plaintiff's crew-member status, therefore, was

for the jury. Compare Grimes v. Raymond Concrete

Pile Co., 356 U.S. 252, 78 S.Ct. 687, 2 L.Ed. 737 (1958) ;

Butler v. Whiteman, 356 U.S. 271, 78 S.Ct. 734, 2 L.Ed.

2d 754 (1958); Biggs v. Norfolk Dredging Co., 360

F.2d 360 (4th Cir. 1966).

475 F.2d, at pg. 510.

The Grimes case involved a pile driver who had assisted

in construction of a tower. When the tower was towed

to sea, Grimes and twenty-five other workers lived on it

and kept it in condition. After the tower was anchored

at its permanent site, Grimes performed only pile driving.

He was drowned when he fell out of a life ring used to

carry him from a tug to the tower. The Supreme Court

reversed the First Circuit’s decision, at 245 F.2d 437, and

held that there was sufficient evidence presented for a

jury’s finding whether or not Grimes was a member of the

erew of any vessel. 356 U.S., at pg. 253.

A74

Appendix C

In Offshore Company v. Robison, 266 F.2d 769 (5th Cir.

1959) the Fifth Cireuit, referring to t

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