Petition — Director, Office of Workers' Compensation Programs v. Walter Tantzen, Inc.

mee ne Vel, Us,

FILED

FEB:

79-1829 | “7

0. | “Micuagy RO

JAK, JR, CLERN

Iu the Supreme Court of the United States

OcTOBER TERM, 1979

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION

PROGRAMS, UNITED STATES DEPARTMENT

OF LABOR, PETITIONER

Vv.

WALTER TANTZEN, INC., AND

INSURANCE COMPANY OF NORTH AMERICA

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

WavE H. McCREE, JR.

Solicitor General

Department of Justice

We-hington, D.C. 20530

CARIN ANN CLAUSS

Solicitor

LAURIE M. STREETER

Associate Solicitor

Mary A. SHEEHAN

MarK C. WALTERS

MARY-HELEN MAUTNER

Kerry L. ADAMS

Attorneys

Department of Labor

Washington, D.C. 20210

ST PRET ns

rat

oo er

INDEX

Page

Opinions below 1

Jurisdiction ‘SSS 2

Question presented _....__...._----- 2

Statute involved 2

Statement I Fe 3

Reasons for granting the petition -..________---. 9

Conclusion __ tai 15

cent ———————- la

Appendix B __ lla

ei papi enentee 13a

Appendix D _____. 16a

Appendix E _ 30a

CITATIONS

Cases:

Fusco v. Perini North River Associates,

601 F.2d 659, vacated and remanded,

No. 79-759 (Jan. 14, 1980) 8, 9, 11

P.C. Pfeiffer Co. v. Ford, No. 78-425 (Nov.

| SE 9, 12, 18, 15

Statute:

Longshoremen’s and Harbor Workers’

Compensation Act, 33 U.S.C. 901 et

seq. 4

Section 2(3), 33 U.S.C. 902(3) _.... 8, 5, 6, 7,

8, 10, 11, 12, 13, 14

Section 2(4), 33 U.S.C. 902(4) -_.8, 5, 6, 7, 8,

10, 11, 12, 13

Section 3(a), 33 U.S.C. 903(a) _..2, 5, 10, 13

Section 21(b), 33 U.S.C. 921(b) 5

Ju the Supreme Court of the United States

OCTOBER TERM, 1979

No.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION

PROGRAMS, UNITED STATES DEPARTMENT

OF LABOR, PETITIONER

Vv.

WALTER TANTZEN, INC., AND

INSURANCE COMPANY OF NORTH AMERICA

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

The Solicitor General, on behalf of the Director of

the Office of Workers’ Compensation Programs,

United States Department of Labor, petitions for a

writ of certiorari to review the judgment of the

United States Court of Appeals for the Second Cir-

cuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

la-10a) is reported at 601 F.2d 670. The opinion of

the Benefits Review Board (App. D, infra, 16a-29a)

(1)

2

is not reported. The decision of the administrative

law judge (App. E, infra, 30a-38a) is not reported.

JURISDICTION

The judgment of the court of appeals (App. B,

infra, 1la-12a) was entered on June 29, 1979. The

Director’s petition for rehearing was denied on Octo-

ber 5, 1979 (App. C, infra, 18a-15a). On January

10, 1980, Mr. Justice Marshall extended the time

within which to file a petition for a writ of certiorari

to and including February 2, 1980, and on January

28, 1980, he further extended the time to and includ-

ing March 3, 1980. The jurisdiction of this Court is

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

QUESTION PRESENTED

Whether a claimant under the Longshoremen’s and

Harbor Workers’ Compensation Act must show that

at least one of his employer’s employees works “upon

actual, as distinguished from statutorily defined,

navigable waters of the United States.”

STATUTE INVOLVED

1. Section 3(a) of the Longshoremen’s and Har-

bor Workers’ Compensation Act, 33 U.S.C. 903(a),

provides 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

3

pier, wharf, dry dock, terminal, building way,

marine railway, or other adjoining area custom-

arily used by an employer in loading, unloading,

repairing, or building a vessel). * * *

2. Section 2(3) of the Act, 33 U.S.C. 902(3), pro-

vides in pertinent part:

The term “employee” means any person engaged

in maritime employment, including any long-

shoreman or other person engaged in longshoring

operations * * *,

3. Section 2(4) of the Act, 33 U.S.C. 902(4), pro-

vides:

The term “employer” means an employer any of

whose employees are employed in maritime em-

ployment, in whole or in part, upon the navigable

waters of the United States (including any ad-

joining pier, wharf, dry dock, terminal, building

way, marine railway, or other adjoining area

customarily used by an employer in loading, un-

loading, repairing, or building a vessel).

STATEMENT

1. On October 21, 1974, Thomas Shaughnessy, a

member of Scaleman’s Local 935 of the International

Longshoremen’s Association and an employee of re-

spondent Walter Tantzen, Inc., was injured in the

course of his employment when he was struck in the

chest by a 40-pound pry bar (App. D, infra, 17a).

The injury occurred on a pier in Brooklyn, New York,

at a cargo inspection point approximately 20 feet

from the water. As the result of his injury, Shaugh-

iia

4

nessy is permanently and totally disabled (App. D,

infra, 17a, 18; App. E, infra, 34a-36a).

Respondent Tantzen is in the business of weighing,

sampling, inspecting, and reconditioning imported

bulk commodities such as rubber, coffee, cocoa, and

tin. The company is retained to perform these tasks

by the domestic consignees of the goods. Shaugh-

nessy’s work, like that of Tantzen’s other employees,

was normally performed on the pier near the water

as soon as possible after cargo had been unloaded

from a ship (App. D, infra, 20a-21a). Longshoremen

would remove cargo from a ship and place it at an

off-loading point on the pier. From there, either long-

shoremen or Tantzen’s employees, including Shaugh-

nessy, would move the cargo to the weighing and

sampling site (ibid.). When reconditioning was neces-

sary, Shaughnessy and his co-workers would move

the cargo within the pier to the extent required

(id. at 21a). Once the tasks of sampling, weighing, and

reconditioning were completed, Shaughnessy’s involve-

ment with the cargo would end, and longshoremen

would remove the cargo from the inspection point and

either deliver it to the consignee for immediate trans-

portation out of the marine terminal or place it in a

storage area within the terminal to await land-based

transportation (ibid.; App. E, infra, 33a).

2. After his injury, Shaughnessy filed a timely

claim for compensation under the Longshoremen’s

and Harbor Workers’ Compensation Act, 33 U.S.C.

901 et seg. An administrative law judge held that

5

Shaughnessy and respondent Tantzen were both “en-

gaged in maritime employment” and thus were a

covered “employee” and “employer” within the mean-

ing of the Act (App. E, infra, 34a). The judge stated

that “the weighing, sampling, and reconditioning of

the cargo prior to delivery to the consignee is [sic]

an integral and essential part of the process of un-

loading and movement” of bulk commodities (ibid.).

The judge further concluded that Shaughnessy is

permanently and totally disabled as a result of his

employment-related injury (id. at 35a). The judge

therefore entered a compensation order on Shaugh-

nessy’s behalf (id. at 37a-38a).

Respondent Tantzen (and its insurance carrier, re-

spondent Insurance Company of North Aiton) ap-

pealed the administrative law judge’s decision to the

Benefits Review Board. See 33 U.S.C. 921 (b). Re-

spondents conceded that Shaughnessy was injured on

the “navigable waters of the United States,” as that

term is used in Section 3(a) of the Act, 33 U.S.C

903(a), and that the “situs” requirement of Section

3(a) was therefore satisfied (App. D, infra, 19a).

Respondents argued, however, that Shaughnessy was

not an employee within the definition of Section

2(3) of the Act, 33 U.S.C. 902(3), “because his job

of inspecting break-bulk cargo is not maritime em-

ployment” (App. D, infra, 19a). They also contended

that, “because [Tantzen] has no control over the

movement of cargo, it is not a statutory employer”

within the meaning of Section 2(4) of the Act, 33

U.S.C. 902(4) (App. D, infra, 19a).

6

A divided panel of the Benefits Review Board af-

firmed the administrative law judge’s ruling (App.

D, infra, 16a-29a). The Board held that an employer

is a statutory “employer” under Section 2(4) if it

has an employee who is engaged in maritime snr

ment (App. D, infra, 20a). Accordingly, the iaby

stated, if Shaughnessy’s employment activities can

characterized as maritime employment, then he 6 an

“employee” under Section 2 (3) and Tantzen is an =

ployer” under Section 2(4) (App. D, infra, 20a). :

Board then concluded that Shaughnessy’s tasks qua

fied as “maritime employment” within the meaning 0

Section 2(3). It explained (App. D, infra, 22a, 24a,

25a): e

f scalemen such as claimant 1s analo-

ae of Jongshore checking and is .

closely related to the process of unloading as

1 part of it.

ze es Te is the nature of break-bulk sort

and the exigencies of shipping it by sea, nie

necessitate the type of inspection and recone -

tioning provided by [Tantzen’s] personnel.

* * * * *

It is well established also that although a

claimant does not actually load, unload, or ed

port maritime cargo, his or her employmen

duties come within the scope of maritime ae

ployment if they are found to be essential to the

movement of maritime cargo. ieee

The principle is applicable here ; ;

the scalemen’s report which clears the way for

the consignee’s acceptance. The scalemen S od

spection activities are therefore essential se a

movement of maritime cargo from the vesse

7

ward the point of transshipment to a land-based

mode of transport. Claimant’s employment is

consequently a part of the overall longshoring

operations, and thus a type of maritime employ-

ment within the meaning of Section 2(3) of the

Act.

Respondents petitioned for review in the court of

appeals, challenging the Board’s holding that

Shaughnessy was engaged in “part of the overall

longshoring operations” and was therefore an “em-

ployee” under Section 2(3) of the Act. Although the

question of Shaughnessy’s employee status was the

sole dispute between the parties (App. A, infra, 2a),

the court decided the case on a wholly different

ground.

The court of appeals observed that no evidence in

the record showed that “Shaughnessy or any other

employee of Tantzen was ever upon actual, as distin-

guished from statutorily defined, navigable waters of

the United States” (App. A, infra, 6a). For this

reason, the court held (id. at 7a-9a), the record failed

to establish that respondent Tantzen is a statutory

employer under Section 2(4) of the Act. Accord-

ingly, the court concluded, Shaughnessy cannot be

covered by the Act, even if he was engaged in long-

shoring operations within the meaning of Section

2(3) at the time of his injury.

The court of appeals’ analysis followed three steps.

It began with the assumption that “employer” status

"under Section 2(4) is an independent requirement

for coverage under the Act. The court then empha-

sized that an employer is not a Statutory employer

under Section 2(4) unless it has at ri one a.

engaged in “maritime employment. Finally, ?

court declared that the phrase “maritime employ

ment” as used in the Act “means employment sea-

ward of the line drawn by Southern Pacific Co. v.

Jensen, 244 U.S. 205 * * * (1917)” (App. A, ya

7a). In other words, according to the court 0 : ma

peals, when the Act refers in Sections ile and (

to persons or employees engaged * maritime ‘si

ployment,” it means only persons — in .

ployment upon actual water” (App. A, infra, “i

lying on its decision in Fusco ve Perini Nor ane

Associates, 601 F.2d 659 (2d Cir. 1979), vacated an

remanded, No. 79-759 (Jan. 14, 1980), the court .

plained (App. A, infra, 7a) that, when Section 2 es 0

the Act defines “employee” as “any person engaged 1n

maritime employment, including any longpnoreman al

other person engaged in longshoring ein gt e

statute “uses the word ‘including’ inexactly ; as =

used ‘including’ means ‘as well as.’” Thus, in ( e

court’s view, not every person engaged in —

operations is engaged in “maritime _

within the meaning of the Act. Only persons working

on actual water are engaged in “maritime employ-

ment,” and an employer must have at least one _

employee if any of its empleyees are to be cove

_ the record did not demonstrate that -

spondent Tantzen employed any person who spe

on actual water, the court remanded the case to a

Board, “leav[ing] the [Board] free in its turn

9

remand the case to an [administrative law judge] to

hear any evidence that shows that in fact Shaugh-

nessy or any other Tanizen employee was employed in

maritime employment in the sense of employment

upon actual water” (App. A, infra, 9a).

REASONS FOR GRANTING THE PETITION

The court of appeals’ decision and reasoning are

directly contrary to this Court’s ruling in P.C. Pfeif-

fer Co. v. Ford, No. 78-425 (Nov. 27, 1979), decided

weveral weeks after the court of appeals’ denial of

rehearing in the present case. In another case under

the Longshoremen’s and Harbor Workers’ Compensa-

tion Act, decided on tl > same day as this case by the

Same court of appeals’ panel, this Court has recently

grated certiorari, vacated the judgment below, and

remanded for reconsideration in light of Pfeiffer. See

Fusco v. Perini North River Associates, 601 F.2d 659

(2d Cir. 1979), vacated and remanded, No. 79-759

(Jan. 14, 1980). Although we believe that the result

reached by the court of appeals in Fusco was correct,

the panel’s opinion in that case was flawed by the

same overly restrictive reading of the phrase “mari-

time employment” that produced an incorrect outcome

here. The Court should now dispose of the present

case in the same way that it handled Fusco. A re-

mand for reconsideration would permit the court of

appeals to apply the teachings of Pfeiffer consistently

and would avoid an erroneous interpretation of the

Act in the circuit that contains the nation’s busiest

Ceep-water port.

10

The court of appeals erred in two respects. First,

the court assumed without discussion that, in order

to establish coverage under the Act, an injured

worker must show that his employer is a statutory

“employer” within the meaning of Section 2(4). This

assumption ignores the plain language of the cover-

age provision in Section 3(a), which requires only

that an injured worker be an “employee” within the

meaning of Section 2(3) and that his injury have

occurred on a covered “situs,” i.e., on the navigable

waters of the United States, including any adjoining

pier, wharf, dry dock, or terminal area. As this

Court remarked in Pfeiffer (slip op. 4), “[t]o be

eligible for compensation, a person must be an em-

ployee as defined by § 2(3) who sustains injury on

the situs defined by § 3(a).” There is no additional

requirement that his employer satisfy the statutory

definition in Section 2 (4).

The court of appeals’ error in adding a third prong

to the Act’s coverage test would have been of little

consequence if the court had not also misinterpreted

the phrase “maritime employment” as it is used ™

Sections 2(3) and 2(4). In defining “employee,

Section 2(3) first uses the general description “per-

son engaged in maritime employment” and then pro-

vides several specific examples of workers engaged

in such employment, including longshoremen and

1 We agree with the Benefits Review Board, however, that

if an employee qualifies as an employee under Section 2(3)

of the Act, his employer will inevitably qualify as an em-

ployer under Section 2(4) (App. D, infra, 20a).

11

other persons engaged in longshoring operations. In

defining “employer,” however, Section 2(4) refers

only to “an employer any of whose employees are

employed in maritime employment”; the subsection

does not give specific examples of employees who are

so employed. No significance should be attached to

Section 2(4)’s failure to repeat the catalogue of spe-

cific occupations that qualify as maritime employ-

ment. The examples are listed in Section 2(3), and

there was no need for Congress to repeat them in the

very next sentence of the Act.

The court of appeals, however, ruled that “mari-

time employment” comprehends only employment on

the actual navigable waters of the United States and

that the full meaning of the statutory term can be

derived from cases decided before the 1972 amend-

ments to the Act. See Fusco v. Perini North River

Associates, supra, 601 F.2d at 664-665, cited with

approval in App. A, infra, 7a. Because it believed

‘that “maritime employment” should be interpreted in

accordance with decisions applying the original 1927

Act, the court adopted an unnatural reading of the

word “including” as it is used in Section 2(3). In-

stead of recognizing that all the specific occupations

listed in Section 2(3) are examples of “maritime em-

ployment,” the court held that, to the extent those

occupations are not performed on actual water, they

should be viewed as additional kinds of work covered

by the Act in the same way that maritime employment

is covered. In short, the court decided that the word

12

“including” in Section 2(3) means “as well as” rather

than “for example” (App. A, infra, 7a).

This analysis was explicitly rejected in P.C. Pfeif-

fer Co. v. Ford, supra. The Court there stated (slip

op. 8 & n.7) (citations omitted) :

Section 2(3) restricts the scope of coverage by

further requiring that the injured worker must *

have been engaged in “maritime employment.”

* * * The term “maritime employment” refers

to the nature of a worker’s activities. Thus § 2

(3) uses the phrase “longshorem fe]n or other

person[s] engaged in longshoring operations ’ as

one example of workers who engage in maritime

employment no matter where they do their job.

* * *

* * * * *

Petitioners apparently assume that @ person en-

gaged in “longshoring operations” is not necee-

sarily engaged in “maritime employment.” But

the language of § 2(3) provides that an employee

is “any person engaged in maritime employment,

including any longshoreman or other’ person en-

gaged in longshoring operations * * *. The peti-

tioner’s argument supposes that the word in-

cluding” means “and” or “as well as. We

understand the word “including” to indicate that

‘“longshoring operations” comprise a part of the

larger group of activities that make up “mari-

time employment.”

Moreover, the Court’s discussion of the definition

of “employer” in Section 2(4) of the Act demon-

strates that the term “maritime employment” should

13

not be construed more narrowly in that context than

in the definition of “employee” in Section 2(3). The

Court stressed in Pfeiffer (slip op. 9) that, in the

amended version of the Act, Section 2(4), like Sec-

tion 3(a), refers to “the navigable waters of the

United States (including any adjoining pier, wharf,

dry dock, terminal, building way, marine railway, or

other adjoi..:ng area customarily used by an employer

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

sel).” The Court observed that it would have made

no sense for Congress to speak, in Section 2(4), of

“maritime employment” in this broad geographical

setting if “maritime employment,” by its very nature,

embraces only work performed on the actual naviga-

ble waters. In the Court’s words (slip op. 9):

If the term “maritime employment” [in Section

2(4)] referred only to work that might take em-

ployees seaward of the Jensen line, then the

broader situs test in the final clause of this sec-

tion would become virtually superfluous. We de-

cline the invitation to construe “maritime em-

ployment” so as to create two differing- situs

requirements in a single sentence.

In the present case, the court of appeals’ erroneous

addition to Section 3(a)’s coverage test and its overly

restrictive reading of the phrase “maritime employ-

ment” produced a holding that neither Shaughnessy

nor any other Tantzen employee could recover compen-

sation under the Act unless at least one such employee

worked on the actual navigable waters of the United

States. This misreading of the statute would deny

14

coverage to numerous employees clearly engaged in

longshoring operations (¢.g., the stripping and stuff-

ing of containers) because of the fortuity that their

employers do not have any employees working on the

actual navigable waters of the United States. More-

over, if the court’s decision is permitted to stand, em-

ployers and their insurance carriers in the Second

Circuit may well revise the employment structure in

marine terminals in order to avoid covering more

employees than necessary under the Act. For exam- —

ple, employers of dock and pier workers might at-

tempt not to employ any persons who may at times

work either aboard a vessel or in some other capacity

on actual water. By this strategem, employers would

be able to ensure that none of their employees is en-

titled to the benefits of the Act, even if all or vir-

tually all of them are engaged in longshoring opera-

tions and therefore qualify as statutory “employees”

under Section 2(3).

In large measure, the ultimate result of the court

of appeals’ holding would be similar to the one spe-

cifically rejected in Pfeiffer: an employee’s coverage

would depend on whether he or one of his co-workers

is subject to assignment aboard a vessel. The Court

should grant certiorari and vacate the judgment of

the court of appeals in order to avoid the accomplish-

ment, through a slightly more circuitous route, of the

very end held impermissible in Pfeiffer.

15

CONCLUSION

The petition for a writ of certiorari should be

granted, and the case should be remanded for re-

consideration in light of P.C. Pfeiffer Co. v. Ford

supra.

Respectfully submitted.

WavDE H. McCREE, Jr.

Solici

aie Wii tice icitor General

Solicitor

LAURIE M. STREETER

Associate Solicitor

Mary A. SHEEHAN

MARK C. WALTERS

MARY-HELEN MAUTNER

KERRY L. ADAMS

Attorneys

Department of Labor

FEBRUARY 1980

ied el al i an a i i ‘a

la

APPENDIX A

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

No. 949, Docket: 79-4034

WALTER TANTZEN, INC., and INSURANCE COMPANY OF

NORTH AMERICA, PETITIONERS

Vv.

THOMAS SHAUGHNESSY and DIRECTOR, OFFICE OF

WORKERS’ COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR, RESPONDENTS

Argued April 30, 1979

Decided June 29, 1979

Joseph F. Manes, New York City, for petitioners-

appellants.

Saul C. Downes, Rowen, Downes, Cascione &

Chechanover, New York City, for respondent-appellee.

Carin Ann Clauss, Laurie M. Streeter, Mary A.

Sheehan, U.S. Dept. of Labor, Washington, D.C., for

party in interest.

Before GURFEIN and MESKILL, Circuit Judges, and

WYZANSKI, Senior District Judge.*

WYZANSKI, Senior District Judge:

An employer and its insurer petition us to review

the December 29, 1978 order of the Benefits Review

Board, [BRB], United States Department of Labor

affirming the order of the administrative law judge

* Of the District of Massachusetts, sitting by designation.

2a

[ALJ] awarding compensation to Thomas Shaugh-

nessy [hereinafter “claimant”] pursuant to the Long-

shoremen’s and Harbor Workers’ Compensation Act.

44 Stat. 1424; 86 Stat. 1251. 33 U.S.C. §§ 901-950

(1976) [LHWCA].

The petition assigns no specific error. (App. la).

Petitioners’ brief (p. 2), reciting that “the sole ques-

tion presented is whether the claimant’s njary.. . .

meets the jurisdictional requirements (status) of the

Act,” discusses only whether plaintiff was an “em-

ployee” within §2(3) of the LHWCA, 33 U.S.C.

§ 902(3).' The employee question is also the only

issue discussed by respondents’ briefs. However, as

will appear, we are of the opinion that we cannot

avoid another question—whether the respondent Wal-

ter Tantzen, Inc. was an “employer” within § 2(4)

of LHWCA, 33 U.S.C. § 902 (4).

1 The relevant statutory section defining “employee,” with

italics indicating 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-employment, including any longshoreman or

other person engaged in longshoring operations, and any

harborworker including a ship repairman, shipbuilder,

and shipbreaker, but such term does not include a master

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

by the master to load or unload or repair any small vessel

under eighteen tons net.

2 “Employer” was defined in 33 U.S.C. § 902(4) :

The term ‘employer’ means an employer any of whose

employees are employed in maritime employment, in

whole or in part, upon the navigabie waters of the United

States [including any dry dock].

3a

The ALJ made the folowing brief findings* as to

the nature of the employer’s business and of the

claimant’s work:

Employer was engaged in the business of weigh-

ing, sampling, and inspection of various imported

commodities, including rubber, the material be-

ing handled by Claimant on October 21, 1974.

Employer is hired by the importing dealers or

their agents. The particular material being

handled is unloaded from the ship by longshore-

men and placed inside the pier. From that point

Employer’s personnel move the commodity in

position to be weighed, after which the bale is

opened by means of pry bars and a cutting in-

strument to be inspected. The container is re-

closed by Employer’s men, and then the com-

modity is moved by longshoremen to its ultimate

destination to be accepted by the consignee. Em-

ployer’s main functions are weighing, recon-

ditioning, and sampling the commodity.

8’ We deprecate the course followed by the BRB in supple-

menting the ALJ’s findings with its own findings, especially on

contested matters. Congress provided that “the findings of

fact [by the ALJ] in the decision under review by the [Bene-

fits Review] Board shall be conclusive if supported by sub-

stantial evidence in the record considered as a whole.”

§ 21(b) (8) of the Longshoremen’s and Harbor Workers’ Com-

pensation Act, 33 U.S.C. §921(b)(3) (Supp. III, 1973).

Presley v. Tinsley Maintenance Service, 529 F.2d 488, 436

(5th Cir. 1976) ; Potenza v. United Terminals, 524 F.2d 1136

1137 (2nd Cir. 1975). If additional findings are necessary the

BRB may “remand a case to the administrative law judge”

to make additional findings. § 21(b) (4) of the LHWCA;; 33

U.S.C. § 921(b) (4). Except with respect to uncontested mat-

ters, the BRB is not entitled to make its own findings of fact,

nor are we. —

Ben ates.

4a

On the basis of his limited findings the ALJ stated

that:

I find and conclude that Employer is engaged

[sic] in maritime employment, and that at the

time of his injury Claimant was doing [sic] like-

wise. It is clear that the weighing, sampling,

and reconditioning of the cargo prior to delivery

to the consignee is [sic] an integral and essential

part of the process of unloading and movement

of the commodity to the point where it is turned

over to the consignee.

Accordingly, the ALJ entered a compensation order

for claimant.

Upon appeal by the employer and its insurer, a

majority of three members of the BRB concluded

that the claimant was “engaged in longshoring op-

erations” within the meaning of § 2(3) which was a

“type of maritime employment within the meaning

of §2(38) of the Act” (App. 17a. Compare App.

15a) and, therefore, the BRB entered its December 29,

1978 order affirming the ALJ’s order.

We do not find it necessary on this inadequate

record‘ to decide whether Shaughnessy was indeed

4 The inadequate record makes it difficult, if not impossible,

to know what duties longshoremen customarily perform. We

repeat the suggestion of Judge Friendly in Pittston Stevedor-

ing Corp. Vv. Dellaventura, 544 F.2d 35, 47 (2nd Cir. 1976),

approved on appeal by the Supreme Court, Northeast Marine

Terminal Co. v. Caputo, 482 U.S. 249, 272-278, note 34, 97

S.Ct. 2348, 538 L.Ed.2d 320, that the BRB prepare a study

of what work longshoremen perform. We, apparently like

Judge Friendly and Mr. Justice Marshall, would regard it

as appropriate for the BRB, even though it is not a fact-

5a

“engaged in longshoring operations.” ®

finding body (see 33 U.S.C. § 21(b) (3)) and has only review

functions, to use such a study in later reviews of orders of

ALJ’s. This would amount to an exercise of judicial notice

with respect to facts “either generally known,” or “capable

of accurate and ready determination by resort to sources

whose accuracy cannot reasonably be questioned.” This would

be in accordance with Fed.R.Evidence 201(a), which, al-

though not controlling BRB or other tribunals acting in an

appellate capacity, as is evident from Fed.R.Evidence 1101,

nonetheless sets a standard appropriate for an appellate

tribunal which contemplates taking judicial notice of any

matter. United States v. Casson, 140 U.S.App.D.C. 141, 148,

434 F.2d 415, 422 (1970).

5 On the record as it now stands we cannot tell whether

Shaughnessy’s case is distinguishable from Blundo’s case de-

cided in Northeast Marine Terminal Co. v. Caputo, 482 U.S.

249, 97 S.Ct. 2348, 53 L.Ed.2d 820 (1977). Blundo in opening

containers, checking the contents, stripping from the contain-

ers the cargo, marking the separate shipments destined for

different consignees, and placing those shipments in a bonded

warehouse was performing in a new setting work which was

the functional equivalent of what longshoremen had pre-

viously done. It was for that reason that the Court held that

Blundo was engaged in longshoring operations. Ibid., pp. 270-

271, 97 S.Ct. 2348. Until we know more about what long-

shorenien customarily do we cannot tell whether there is a

similar equivalency with respect to Shaughnessy’s duties in

weighing bales which belong to an individual consignee,

opening them, inspecting them, reconditioning their contents,

and reclosing them. Obviously, what Shaughnessy does is

directed at the weighing of a particular consignee’s shipment

and the inspection and reconditioning of its contents, and we

are uninformed as to what longshoremen do with respect to

individual shipments.

Moreover, the present findings of the ALJ do not show

clearly whether after Shaughnessy has finished his inspection

he, in effect like a switchman, directs a gang of longshoremen

6a

An examination of the record reveals no evidence

that Shaughnessy or any other employee of Tantzen

was ever upon actual, as distinguished from stat-

utorily defined, navigable waters of the United States

(hereinafter sometimes called “actual water’). Nor

do either the ALJ or the BRB say that Shaughnessy

or any other employee of Tantzen was on actual

water. What they do say or imply is that the fact

that Shaughnessy was engaged in longshoring opera-

tions means that he was in maritime employment”

within the meaning of both §2(3) and § 2(4) and

that it follows that Tantzen was an employer within

§2(4). In our opinion, this reasoning involves a

nonsequitur, a misconstruction of § 2(3), an incor-

rect interpretation of the term “maritime employ-

ment” as used in both §2(3) and §2(4), a mis-

application of the cases holding that once it has

been determined that a claimant is engaged in ‘“‘mari-

time employment” it follows that his employer is an

employer within § 2(4), and a result squarely con-

trary to a declared Congressional purpose.

whether to take the bales to the consignee’s truck or to take

them to a storage warehouse.

In pointing to these lacunae, we have not indicated whether

we agree with Shaughnessy’s contention and the BRB’s view

that the word “engaged” in the phrase “engaged in long-

shoring operations” means merely “directly involved.” See

Brady-Hamilton Stevedore Co. v. Herron, 568 F.24 187 (9th

Cir. 1978) ; Texports Stevedore Co. v. Winchester, 554 F.2d

245, 247 (5th Cir.), second pet. for rehearing on other

grounds granted, 569 F.2d 428 (1978) ; J. A. McCarthy, Inc.

v. Bradshaw, 547 F.2d 1161 (8d Cir. 1977), vacated and

remanded, 483 U.S. 905, 97 S.Ct. 2967, 53 L.Ed.2d 1088

(1977), adhered to on reconsideration, 564 F.2d 89 (8d Cir.

1977).

Ta

In Fusco et al. v. Perini et al., F.2d ——

(2nd Cir. 1979) we explained that, as used in § 2(3),

the phrase a “person engaged in maritime employ-

ment” is to be read geographically as meaning a

person engaged in employment upon actual water.

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

gaged in maritime employment, including any long-

shoreman,” §2(3) uses the word “including” inex-

actly; 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 em-

ployment in longshoring operations is a type of em-

ployment within §2(3) does not make it a type of

“maritime employment” as those two words are used

in § 2(3). 7

Nor is employment in longshoring operations on

land “maritime employment” as that term is used in

§ 2(4). As Fusco v. Perini, supra, details at length,

and as Calbeck v. Travelers Insurance Co., 370 U.S.

114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962) finally

settled, the term “maritime employment” as used in

§ 2(4) means employment seaward of the line drawn

by Southern Pacific Co. v. Jensen, 244 U.S. 205, 37

S.Ct. 524, 61 L.Ed. 1086 (1917). There is no show-

ing that Shaughnessy or any other Tantzen employee

ever spent any part of any working day seaward of

the Jensen line.

The cases to which the BRB refers, such as North-

east Marine Terminal Co. v. Caputo, 4382 U.S. 249,

97 S.Ct. 2348 (1977) and Handcor Inc. v. Director,

8a

568 F.2d 148, 144 (9th Cir. 1978), and cases like

I.T.0. Corp. of Baltimore v. Benefits Review Board,

529 F.2d 1080, 1083 (4th Cir. 1975), modified en

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

vacated and remanded sub nom. Adkins v. I.T.O.

Corp. of Baltimore, 433 U.S. 904, 97 S.Ct. 2967, 53

L.Ed.2d 1088 (1977), rev’d on remand on other

grounds, 563 F.2d 646 (1977), as well as texts such

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

§ 89.27 p. 16-178, and Gilmore and Black, The Law

of Admiralty (2d ed., 1975), p. 429, lines 14-16,

which indicate that once the claimant’s status as an

“employee” is established the employer automatically

becomes an “employer” failed to consider the problem

presented by the instant case—where a worker claims

the status of a statutory § 2(3) “employee” because

he is a longshoreman but is not himself in maritime

employment. What those authorities say about the

claimant’s proving that his employer is a statutory

§ 2(4) employer by proving that he is a § 2(3) em-

ployee is true if and only if the employee also proves

that he is employed over actual water.

That the foregoing statement is sound is con-

vincingly shown by the Congressional Committee Re-

ports which accompanied the 1972 amendments to the

1927 LHWCA. See, S.Rep.No.92-1125, 92 Cong. 2

Sess. (1972) and H.R.Rep.No.92-1441, U.S.Code

Cong. & Admin.News 1972, p. 4698. The Committees

were explicit in their intention to exclude from

LHWCA liability any employer who had no employees

on actual water:

9a

Likewise the Committee has no intention of ex-

tending coverage under the Act to individuals

who are not employed by a person who is an

employer, i.e., a person at least some of whose

employees are engaged, in whole or in part, in

some form of maritime employment. Thus, an

individual employed by a person none of whose

employees work, in whole or in part, on navigable

waters, is not covered even if injured on a pier

adjoining navigable waters. S.Rep. 15; H.R.

Rep. 11.

Although we must set aside the BRB’s Decem-

ber 29, 1978 order because there is no proof that the

employer Tantzen is subject to the LHWCA, we, in

remanding the case, leave the BRB free in its turn

to remand the case to an ALJ to hear any evidence

that shows that in fact Shaughnessy or any other

Tantzen employee was employed in maritime employ-

ment in the sense of employment upon actual water.

Such a reopening of the case may seem fair in view

of a misunderstanding so generally shared in this

case by all, and not even exposed in the briefs or at

the oral argument.

If the case is re-opened it might be appropriate to

take further evidence and to make more specific find-

ings as to (1) Shaughnessy’s own duties, (2) what,

if any, duties longshoremen perform in connection

with weighing, opening, inspecting, and recondition-

ing the contents of bales or other packages of in-

dividual consignees, and (3) what form of report, if

any, a scaleman like Shaughnessy makes to the long-

10a

shoremen who pick up bales when the scaleman has

finished his work.

Petition granted.

The December 29, 1978 Benefits Review Board

order is set aside and the case is remanded to the

Benefits Review Board for further proceedings not

inconsistent with this opinion.

lla

APPENDIX B

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

. 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-ninth day of June, one thousand nine

hundred and seventy-nine.

Present: HoN. Murray I. GURFEIN,

Circuit Judge

HoN. THOMAS J. MESKILL,

Circuit Judge

HON. CHARLES EDWARD WYZANSKI, JR.,

District Judge

79-4034

WALTER TANTZEN, INC., and INSURANCE COMPANY OF

NORTH AMERICA, PETITIONERS

Vv.

THOMAS SHAUGHNESSY, RESPONDENT

and

DIRECTOR, OWCP, PARTY IN INTEREST

A petition for review of an order of the Benefits

Review Board of the Department of Labor

12a

This cause came to be heard on the record of the

Benefits Review Board and was argued by counsel

Upon consideration thereof,

It is hereby ordered adjudged and decreed that

the petition for review be and it hereby is granted

and the action remanded to said Board for further

proceedings in accordance with the opinion of this

court with costs to be taxed against the respondents.

A. DANIEL FUSARO

Clerk

BY: /s/ Arthur Heller

ARTHUR HELLER

Deputy Clerk

13a

APPENDIX C

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

_ 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 fifth day of October, one thousand nine

hundred and seventy-nine.

Present: HON. Murray I. GURFEIN,

Circuit Judge

Hon. THOMAS J. MESKILL,

Circuit Judge

HON. CHARLES E. WYZANSKI,

District Judge

Docket No. 79-4034

WALTER TANTZEN, INC., and INSURANCE COMPANY OF

NORTH AMERICA, PETITIONERS

Vv.

THOMAS SHAUGHNESSY, and

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION

PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

RESPONDENTS

A petition for a rehearing having been filed herein

by counsel for the Director, Office of Workers’ Com-

pensation Programs,

l4a

Upon consideration thereof, it is

Ordered that said petition be and it hereby is

denied.

/s/ A. Daniel Fusaro

A. DANIEL FUSARO

Clerk

ee ane ene

15a

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

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 fifth day of October, one thousand nine-

hundred and seventy-nine.

Docket No. 79-4034

WALTER TANTZEN, INC., and INSURANCE COMPANY OF

NORTH AMERICA, PETITIONERS

Vv.

THOMAS SHAUGHNESSY, and DIRECTOR, OFFICE OF

WORKERS’ COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR, RESPONDENTS

A petition for rehearing containing a suggestion

that the action be reheard in bane having been filed

herein by counsel for the Director, Office of Workers’

Compensation Programs, and no active judge or

judge who was a member of the panel having re-

quested that a vote be taken on said suggestion.

Upon consideration thereof, it is

Ordered that said petition be and it hereby is denied.

/s/ Irving R. Kaufman

Chief Judge

l6a

APPENDIX D

U.S. DEPARTMENT OF LABOR

BENEFITS REVIEW BOARD

Washington, D.C. 20210

[SEAL]

BRB No. 78-133

[Filed as part of the record—Dec. 29, 1978—

Agnes Kurtz, Clerk, Benefits Review Board]

THOMAS SHAUGHNESSY, CLAIMANT-RESPONDENT

Vv.

WALTER TANTZEN, INC.

and

INSURANCE COMPANY OF NortTH AMERICA,

EMPLOYER/CARRIER-PETITIONERS

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION

PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

PARTY-IN-INTEREST

DECISION

Appeal from the Decision and Order of Freeman C.

Murray, Administrative Law Judge, United States

Department of Labor.

Saul C. Downes (Rowen, Downes, Cascione & Che-

chanover), New York, New York, for the claimant.

Joseph F. Manes, Croton-on-Hudson, New York, for

the employer/carrier.

Linda L. Carroll (Carin Ann Clauss, Solicitor of

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

17a

ington, D.C., for the Director, Office of Workers’

Compensation Programs, United States Department

of Labor.

Before: SMITH, Chairman, MILLER and KAL-

ARIS, Members.

MILLER, Member:

This appeal by the employer/carrier (hereinafter,

the employer), from a Decision and Order (77-LHCA-

597) of Administrative Law Judge Freeman C. Mur-

ray, is brought pursuant to the provisions of the

Longshoremen’s and Harbor Workers’ Compensation

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

the Act). .

The claimant, a member of Scaleman’s Local 935,

International Longshoremen’s Association, was struck

in the chest on October 21, 1974, by a forty-pound

pry bar with which he was helping to open a half-

frozen bale of rubber weighing approximately 245

pounds. Claimant was working at the time on a pier

in Brooklyn, about twenty feet from the water’s edge.

He was hospitalized from the day he was struck until

November 11, 1974, as well as several times there-

after. In a report dated June 8, 1976, a Veterans

Administration Hospital staff physician rated the

claimant as “100% totally disabled.” The claimant,

when injured, was in his late forties and had worked

for the employer off and on for about twenty years.

Since being injured, claimant has undergone coronary

bypass surgery and has not worked.

18a

At the hearing, claimant and employer stipulated

to the employer-employee relationship; the injury;

that the injury arose out of and in the course of

employment; notice; timely filing of the compensation

claim; average weekly wage of $272; voluntary pay-

ment of compensation for temporary total disability

from October 21, 1974, through March 7, 1977; that

employer had not paid for medical services pursuant

to Section 7 of the Act, 33 U.S.C. § 907; and that

claimant has not returned to his regular employment.

The administrative law judge found claimant to be

permanently, totally disabled by arterioscierotic heart

disease connected with his employment. He then held

that the claim came under the Act, and accordingly

awarded the claimant compensation for permanent

total disability in the amount of $181.33 per week,

to be adjusted pursuant to Section 10(f) of the Act,

33 U.S.C. §910(f). The administrative law judge

also ordered the employer to pay additional compen-

sation pursuant to Section 14(e) of the Act, 33

U.S.C. §914(e), with interest at six percent per

annum from the due date of each overdue payment,

as well as medical benefits pursuant to Section 7 of

the Act.

The employer appeals the administrative law

judge’s determination that the claim comes within

the jurisdiction of the Act. The Board is limited to

determining whether the findings and conclusions of

the administrative law judge are supported by sub-

stantial evidence, are not irrational, and are other-

19a

wise consistent with applicable law. If so, they must

be affirmed. 33 U.S.C. § 921(b)(8); O'Keeffe v.

Smith Associates, 380 U.S. 359 (1965). We affirm

the Decision and Order of the administrative law

judge.

For this claim to be compensable under the Act,

the jurisdictional “situs” and “status” requirements

must be met. First, the claimant must be injured

over the navigable waters of the United States. 33

U.S.C. § 903(a). The employer concedes that claim-

ant was injured on a situs covered by the Act.

The second requirement is that the claimant have

the status of a statutory employee. Section 2(3) of

the Act, 33 U.S.C. § 902(8), defines this as

any person engaged in maritime employment, in-

cluding any longshoreman or other person en-

gaged in longshoring operations, and any harbor-

worker including a ship repairman, shipbuilder,

and ship-breaker. ...

The employer maintains that claimant is not an em-

ployee within the meaning of the Act, because his

job of inspecting break-bulk cargo is not maritime

employment. The employer argues also that, because

it has no control over the movement of cargo, it is

not a statutory employer.

Section 2(4) of the Act, 33 U.S.C. § 902(4), pro-

vides that

the term ‘employer’ means an employer any of

whose employees are employed in maritime em-

ployment, in whole or in part, upon the navigable

waters of the United States. ...

20a

The Act does not provide that, in order to be a statu-

tory employer, one must have control over the move-

ment of cargo. Statutory status as an employer re-

sults from having an employee who is engaged in

maritime employment. We need therefore consider

claimant’s employment activities only. If these can

be characterized as maritime employment, the em-

ployer is thereby brought within the purview of Sec-

tion 2(4). Accord: Northeast Marine Terminal Com-

pany, Inc. v. Caputo, 482 U.S. 249, 6 BRBS 150

(1977); Kelley v. Handcor, Inc., 568 F.2d 148, 7

BRBS 413 (9th Cir. 1978), af’g 1 BRBS 319, BRB

Nos. 74-165 & 74-165A (Feb. 28, 1975) ; Jacksonville

Shipyards v. Perdue, 589 F.2d 533, 4 BRBS 482 (5th

Cir. 1976), vacated and remanded in part sub nom.

Director, OWCP v. Jacksonville Shipyards, Inc., 433

U.S. 904 (1976), vacated and remanded sub nom.

Director, OWCP v. Jacksonville Shipyards, Inc., 483

U.S. 904 (1977), reaffirmed, 575 F.2d 79 (5th Cir.

1978); Carroll v. Hullinghorst Industries, Inc., 7

BRBS 538, BRB No. 76-500 (Jan. 22, 1978) ; Harris

v. Maritime Terminals, Inc., 1 BRBS 301, BRB No.

74-178 (Feb. 8, 1975).

The sole business of the employer in this case is

to weigh, sample, test, inspect and, when necessary,

recondition imported commodities such as rubber,

cofive, cocoa, and tin. The employer is hired for this

purpose by domestic consignees of the commodities.

Most of the time, the claimant worked with rubber.

: Longshoremen off-load the commodities from ships

2la

and bring them to where they are to be weighed and

sampled. On rare occasions this can be some distance

from the water, but usually the weighing is done in

the pier as closely as possible to the off-loading point

and very shortly after cargo is deposited there. Fre-

quently, scalemen themselves remove cargo from the

sling and transport it from off-loading point to pier.

Claimant testified that “nine times out of the ten,

we'll unhook the nets from the crane because they

haven’t got enough men or the facilities to do it.”

The inspection and sampling is done soon after off-

loading, sometimes within twenty minutes.

The employer also reconditions commodities which

have been damaged in transit, by drying dampened

bales, for instance, and by removing wood splinters

which have become embedded in bales of rubber.

When such reconditioning is necessary, claimant and

his fellow workers hand-truck the bales fifty or one

hundred [sic; the Board’s opinion appears to contain

an omission at this point] finished weighing, inspect-

ing, or otherwise handling a given shipment, they re-

port on its condition to an agent of the consignee. This

ends the employer’s involvement with the cargo. It

can be as many as five days thereafter before long-

shoremen remove the bales from the weighing point

for transfer to a land-based form of transportation.

Although Congress, when enacting the “status” re-

quirement, did not define “maritime employment,”

“longshoreman,” or “longshoring operations,” the

Senate and House Committee reports give some guid-

ance.

22a

The committee does not intend to cover employees

who are not engaged in loading, unloading, re-

pairing, or building a vessel, just because they

are injured in an area adjoining navigable

waters used for such activity. . . . However,

checkers, for example, who are directly involved

in the loading or unloading functions are covered

by the new amendment.

S. Rep. No. 92-1125, 92d Cong., 2d Sess. 12-13

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

1972 U.S. Code Cong. & Admin. News, pp. 4707-08,

quoted in Northeast Marine Terminal Co., supra,

note 27. Longshore checking includes noting damage

sustained by cargo during shipping. Dictionary of

Occupational Titles, Third Edition, 1965, Vol. »

119. The work of scalemen such as claimant is analo-

gous to aspects of longshore checking and is so closely

related to the process of unloading as to be an inte-

gral part of it.

There is, moreover, no question that removing

cargo from slings and trucking it to the pier are

longshoring operations, and therefore maritime em-

ployment. The record indicates that longshoremen

are by contract supposed to do it. Longshoremen in-

jured while engaged in this activity would be covered

by the Act: 33 U.S.C. § 902(3); scalemen or weigh-

ers do that same work. The record indicates also that

it is the nature of break-bulk cargo, and the exigen-

cies of shipping it by sea, which necessitate the type

of inspection and reconditioning provided by employ-

_ er’s personnel. We think that the maritime nature

of the work is clear.

23a

When claimant dealt with cargo, it was unques-

tionably in the stream of maritime rather than land

commerce. “The line which Congress intended to

draw was between maritime commerce and land com-

merce, and the coverage of the federal law starts at

the point where the cargo passes to or from an em-

ployer engaged in the former to an employer engaged

in the latter... . The line should still be drawn where

cargo is delivered to a segregated place for delivery

to the next mode of transportation.” Sea-Land Serv-

ice, Inc. v. Director, OWCP and Johns, 540 F.2d 629,

639 (8d Cir. 1976). Claimant regularly worked on

the pier and on the stringpiece, close to the water and

well away from the line drawn in Johns. |

The claimant, in addition, actually handled the

break-bulk cargo, hand-trucking it as necessary, mov-

ing it on and off the scales, and so forth. This dis-

tinguishes him from “purely clerical employees whose

jobs do not require them to participate in the loading

or unloading of cargo ... ,” whom the Senate and

House Committees did not intend to cover. Northeast

Marine Terminal Co., supra, note 27. It distin-

guished him likewise from the claimant in Maher

Terminals Inc. v. Farrell, 548 F.2d 476, 5 BRBS 393

(3d Cir. 1977), rev’g 3 BRBS 42, BRB No. 75-183

(Dec. 10, 1975), which denied benefits under the Act

to a marine terminal office clerk whose principal duty

was to examine documents presented by outside truck-

ers. Although cargo was evidently in maritime com-

merce when he was concerned with it, the clerk in

24a

Farrell did not handle it, and was therefore held by

the Third Circuit to be outside the coverage of the

Act.

It is well established also that although a claimant

does not actually load, unload, or transport maritime

cargo, his or her employment duties come within the

scope of maritime employment if they are found to

be essential to the movement of maritime cargo. It

has been so held, for instance, in the case of water-

front mechanics who maintain equipment used in

longshoring operations. Bradshaw v. J.A. McCarthy,

Inc.,.38 BRBS 195, BRB Nos. 75-209, 209A, and 209B

(Jan. 26, 1976), petition for review denied, 547 F.2d

1161 (3d Cir. 1977), vacated and remanded, 97 S.Ct.

2967 (1977), aff'd mem. 564 F.2d 89 (1977). See

also Jameson v. Marine Terminal Corp., 6 BRBS 424,

BRB No. 76-275 (Aug. 11, 1977) ; Stecz v. Sea-Land

Service, Inc., 6 BRBS 291, BRB No. 76-350 (July

5, 1977); Thompson v. Oceanic Containers Service,

Inc., 5 BRBS 831, BRB No. 76-294 (May 12, 1977 ).

The U.S. Court of Appeals for the Ninth Circuit,

affirming the Board, has applied this principle in the

case of a gear lockerman who inspected, maintained,

refueled, and repaired stevedoring equipment, and

transported it between the locker and the dock: the

lockerman’s function was an “integral and essential

part of the overall longshoring operations.” Brady-

Hamilton Stevedore Co. v. Herron, No. 75-1535 (8th

Cir. Jan. 23, 1978), 7 BRBS 409, 410, aff’g 1 BRBS

273, BRB No. 74-171 (Jan. 23, 1975).

i nine AOE i sn

25a

The principle is applicable here, as well. It is the

scalemen’s report which clears the way for the con-

signee’s acceptance. The scalemen’s inspection activi-

ties are therefore essential to the movement of mari-

time cargo from the vessel toward the point of trans-

shipment to a land-based mode of transport. Claim-

ant’s employment is consequently a part of the over-

all longshoring operations, and thus a type of mari-

time employment within the meaning of Section 2(3)

of the Act.

We do not think that claimant’s status as a con-

signees’ agent affects his status as a statutory em-

ployee. The record shows that it is the consignee who,

after accepting, arranges for longshore personnel to

take the inspected cargo from the weighing point to

the point of transshipment. We do not doubt that

the longshoremen effecting this further movement of

the cargo do so as the consignee’s agents, and we do

not doubt that they are covered under the Act. Cf.

Northeast Marine Terminal Co. supra.

We are enjoined so to interpret the Act as to avoid

“harsh and incongruous results.” Voris v. Hikel, 346

U.S. 328 (1953). Discussing maritime workers in-

jured on a shoreside “situs,” the Supreme Court has

observed that “The language of the [Act] is broad

and suggests that we should take an expansive view

- of the . ... coverage. Indeed, such a construction is

appropriate for this remedial legislation.” Northeast

Marine Terminal Co., supra, at 264. Our Decision

that claimant is an employee within the meaning of

26a

Section 2(3) of the Act accords with this policy. To

hold otherwise would open a gap in the Act’s shore-

ward coverage excepting claimant and similar work-

ers, while protecting other shoreside workers who

handle cargo still moving in the stream of maritime

commerce from vessel to point of transshipment.

We hereby affirm the Decision and Order of the

administrative law judge.

/s/ Julius Miller

JULIUS MILLER

Member

I Concur:

/s/ Ismene M. Kalaris

ISMENE M. KALARIS

Member

Dissent of SMITH, Chairman, to follow.

Dated this 29th day of December 1978.

27a

SMITH, Chairman, Dissenting:

I respectfully dissent from the decision of the

majority.

When Cengress in 1972 amended Section 3(a) of

the Act, 33 U.S.C. § 903(a), to include in the defini-

tion of navigable waters “. . . any pier, wharf...

terminal . . . or other adjoining area customarily

used by an employer in loading, unloading, repairing,

or building a vessel,” it did not intend thereby to

provide benefits under the Act for every worker in-

jured on a newly-covered situs.

The Committee does not intend to cover em-

ployees who are not engaged in loading, unload-

ing, repairing, or building a vessel, just because

they are injured in an area adjoining navigable

waters used for such activity. Thus, employees

whose responsibility is only to pick up stored

cargo for further trans-shipment would not be

covered, nor would purely clerical employees

whose jobs do not require them to participate in

the loading or unloading of cargo. However,

checkers, for example, who are directly involved

in the loading or unloading functions are covered

by the new amendment.

S. Rep. No. 92-1125, 92d Cong., 2d Sess. 12-13

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

1972 U.S. Code Cong. & Admin. News, pp. 4707-08,

quoted in Sea-Land Service, Inc. v. Director, OWCP

and Johns, 540 F.2d 629 (3d Cir. 1976). For cover-

age under the Act, Congress therefore required that

a claimant be injured on the situs, and that he have

28a

the status of an employee, that is, a “person engaged

in maritime employment, including any longshore-

man or other person engaged in longshoring opera-

tions... .” 33 U.S.C. § 902(3). The activities of the

employer and the claimant in this case both lack the

maritime nexus necessary to found appropriate status

under the Act.

The employer acts always as the agent for Good-

year, Firestone, Uniroyal, and other land-based con-

signees. The claimant handled cargo solely to protect

those consignees’ interests by ascertaining, before ac-

ceptance, the quality and condition of the cargo; he

did not handle it in order to further its progress

through the stream of maritime commerce. Claim-

ant’s position is therefore legally indistinguishable

from that of a consignee’s outside trucker who picks

cargo up on the pier for shipment by land. The

trucker, although injured over navigable waters, is:

not intended to be covered under the amended Act.

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

249, 267 (1977); Sea-Land Service, Inc., supra at

637, 688. This is because the amended definition of

navigable waters is less a delineation of a geographi-

cal area than a means of expressing the relationship

of dockside activities to maritime transport.

The reference in §§ 902(4) and 903(a) to the

navigable waters of the United States should be

regarded [as] no more than a shorthand way of

relating the function being performed by the in-

jured employee to waterborne transportation, the

jurisdictional nexus.

ee cena

ae ee ee ee

29a

Sea-Land Service, Inc., supra at 638. There is no

jurisdiction under the Act if the maritime relation-

ship is not established.

The committee reports’ examples of workers not

covered under the amended Act indicate that the

touchstone for longshore employment is whether a

claimant is required “to participate in the loading

or unloading of cargo” or is “directly involved in the

loading or unloading functions.” Sea-Land Service,

Inc., supra at 637, 688. The claimant here is neither

directly involved in unloading operations nor indi-

rectly involved. Those operations would be unaffected

by the absence of scalemen such as claimant. Claim-

ant handles cargo to facilitate inspecting operations

only. His employment activity is oriented toward the

demands of land commerce exclusively. He is there-

fore not engaged either in longshoring operations, or

in maritime employment within the meaning of Sec-

tion 2(3) of the Act. I would reverse.

/s/ Samuel J. Smith

SAMUEL J. SMITH

Chairman

30a

APPENDIX E

U.S. DEPARTMENT OF LABOR

OFFICE OF ADMINISTRATIVE LAW JUDGES

Suite 700 - 1111 20th Street, N.W.

Washington, D.C. 20036

[SEAL]

Case No. 77-LHCA-597

OWCP No. 2-37667

IN THE MATTER OF

THOMAS SHAUGHNESSY, CLAIMANT

v.

WALTER TANTZEN, INC., EMPLOYER

and

INSURANCE COMPANY OF NORTH AMERICA, CARRIER

Saul C. Downes, Esquire

Rowen, Downes, Cascione and Chechanover

Suite 4000, The Woolworth Building

233 Broadway

New York, New York 10007

For the Claimant

Joseph F. Manes, Esquire

Finney Farm

Croton-on-Hudson

New York, New York

For the Employer

and Carrier

3la

Carin Ann Clauss, Solicitor of Labor

Laurie M. Streeter, Associate Solicitor

Linda L. Carroll, Esquire

U.S. Department of Labor

Suite N-2716, NDOL

200 Constitution Avenue, N.W.

Washington, D.C. 20210

For the Director,

OWCP

BEFORE: FREEMAN C. MURRAY

Administrative Law Judge

DECISION AND ORDER

Jurisdictional and Procedural History —

This is a claim for compensation benefits under

the Longshoremen’s and Harbor Workers’ Compensa-

tion Act (the Act), 33 U.S.C. 901 et seq.

Stipulations

It is stipulated and agreed by and between the

parties that at all times pertinent to this case that

(Tr. 5-7):

1. Claimant and Employer were in an employee-

employer relationship.

2. The injury occurred on October 21, 1974.

3. The injury arose out of and in the course of

the employment.

4. Employer had timely notice of the injury.

5. Claimant filed a timely claim for compensa-

tion.

32a

6. Claimant’s average weekly wage at the time

of injury was $272.00, indicating a compensation

rate of $181.33.

7. Employer voluntarily paid compensation for

temporary total disability from October 21, 1974,

through March 7, 1977. The first payment was

not made until January 30, 1975, when $2,160.00

was paid, bringing up to date the installments

due from October 22, 1974, to January 21, 1975.

From January 21, 1975, to March 7, 1977, com-

pensation payments were made on a bi-monthly

basis, and the parties agreed there was no con-

troversy as to penalties under Section 14 of the

Act with respect to this latter period.

8. Employer has not paid for medical services

pursuant to Section 7 of the Act.

9. Claimant has not returned to his regular

employment.

Issues

1. Whether the parties are subject to the juris-

diction of the Act.

2. The nature and extent of disability conse-

quent to the injury of October 21, 1974.

Findings of Fact and Conclusions of Law

Based upon the entire record in this case, and my

observation of the witnesses and their demeanor, I

make the following Findings of Fact and Conclusions

of Law.

The stipulations agreed to by the parties are con-

sistent with the evidence, and I find them to be es-

tablished as facts.

33a

Issue No. 1—Jurisdiction:

Respondents assert that Employer is not subject

to the jurisdiction of the Act since it has no employees

engaged in maritime employment, and the functions

performed by Claimant on the day of the injury were

not maritime employment.

Employer was engaged in the business of weighing,

sampling, and inspection of various imported com-

modities, including rubber, the material being handled

by Claimant on October 21, 1974. Employer is hired

by the importing dealers or their agents. The par-

ticular material being handled is unloaded from the

ship by longshoremen and placed inside the pier.

From that point Employer’s personnel move the com-

modity in position to be weighed, after which the

bale is opened by means of pry bars and a cutting

instrument to be inspected. The container is re-

closed by Employer’s men, and then the commodity

is moved by longshoremen to its ultimate destination

to be accepted by the consignee. Employer’s main

functions are weighing, reconditioning, and sampling

the commodity.

Section 2(3) of the Act defines an “employee” as

a person engaged in maritime employment, including

any harbor-worker, and Section 2(4) defines an “em-

ployer” as anyone who has any employee engaged in

maritime employment on navigable waters, including

designated adjoining areas. Compensation is paid for

disability of an employee arising from an injury oc-

curring upon navigable waters and environs. 33

U.S.C. § 903.

34a

I find and conclude that Employer is engaged in

maritime employment, and that at the time of his

injury Claimant was doing likewise. It is clear that

the weighing, sampling, and reconditioning of the

cargo prior to delivery to the consignee is an integral

and essential part of the process of unloading and

movement of the commodity to the point where it is

turned over the consignee. It is also clear that Claim-

ant is a harbor-worker. Camitros v. B. T. Ilsley, Inc.,

6 BRBS 295, BRB No. 76-866 (July 15, 1977) is

virtually on all fours with the case under considera-

tion. I also find and conclude that the injury occurred

on navigable waters. 33 U.S.C. § 903.

Issue No. 2—Disability :

At the time of the hearing Claimant was 48 years

of age, had completed two years of high school, and

had worked for Employer about 20 years.

Claimant testified that on the day he was injured

he was engaged in breaking open a bale of rubber

when the bale suddenly parted and the pry bar struck

him in the chest. (Tr. 20, 21) George W. Anderson,

a supervisor for Employer, testified that Claimant

told him he didn’t feel well, that he had a pain in his

chest. Mr. Anderson told him to sit and rest, and

later Claimant asked for an ambulance. (Tr. 38, 39)

Mr. Shaughnessy was hospitalized from October 21,

1974, to November 11, 1974, and rehospitalized Jan-

uary 16, 1975, for supra-ventricular tachycardia.

(Respondent No. 2)

0 AES el ht we thes lt tn aan Od Se ia Aaa

35a

A report by the Veterans Hospital dated June 8,

1976, showed Claimant’s admission on March 5, 1976,

and discharge on March 29, 1976. A cardiac cath-

eterization was performed on March 24, and the

diagnosis included arteriosclerotic heart disease; coro-

nary insufficiency; old inferior wall myocardial in-

farction; status post coronary by-pass August 1975;

and status post cardiac catheterizations, June 1975

and March 1976. The staff physician remarked that

the Claimant was “100 percent totally disabled.” Mr.

Shaughnessy was discharged to the Outpatient Clinic.

He was again admitted May 24, 1976, and discharged

May 27, 1976, to the Outpatient Clinic. (Claimant

No. 3) |

A report by Dr. Seymour S. Cutler dated March

2, 1977, showed he begun treating Claimant in July

1976, and that the most recent treatment was in

March 1977, to continue. Dr. Cutler noted there had

been 2 hospital admissions because of chest pain and

premature ventricular beats. The doctor reports there

is a causal connection to an occurrence, but the oc-

currence to which he refers is not definitely shown

in the record. (Claimant No. 2)

Claimant testified that he could not lift weights of

five or ten pounds because of numbness in his arms

which he attributed to the bypass surgery. (Tr. 32)

I am persuaded by the evidence that Claimant is

permanently totally disabled by reason of his arter-

iosclerotic heart disease. I am also persuaded that

Claimant’s heart disease is causally connected to his

employment. See, e.g., Collins v. General Dynamics

36a

Corporation, 5 BRBS 675, BRB No. 76-181 (April

5, 1977), et al.

Penalties and Interest:

It was stipulated that compensation was not paid

until January 30, 1975, when a lump sum of $2,160.00

purported to bring the payments up to date to Jan-

uary 21, 1975. Penalties provided by Section 14(e)

of the Act are applicable to that period for each pay-

ment not made within fourteen days after the due

date, together with interest at the rate of six percent

per annum.

The compensation rate is $181.33 per week based

on an average weekly wage of $272.00.

It was further stipulated that payments were made

on the bi-weekly (semimonthly) basis until March

7, 1977, and that no payments were subject to penal-

ties. The evidence does not indicate otherwise. How-

ever, payments subsequent to that time are subject

to penalties and interest.

Attorney Fee:

Saul C. Downes, Esquire, and Samuel S. Hyams,

Esquire, have submitted a request for an attorney

fee of $2,000.00. Respondents have commented

thereon.

An attorney fee is payable in this matter; however,

I am unable to award a fee on the basis of the ap-

plication. 20 C.F.R. 702.132 et seg. requires the ap-

plication to be supported by a complete statement of

the character and extent of the work done. Time in-

37a

crements of 15 minutes or more should be utilized.

Time will be afforded.

Order

1. Respondents shall pay Claimant compensation

for permanent total disability based on a compensa-

tion rate of $181.33 per week, beginning October 21,

1974, and continuing, said sums to be adjusted pur-

suant to Section 10(f) of the Act.

2. Respondents shall pay Claimant as additional

compensation, pursuant to Section 14(e) of the Act,

an amount equal to ten percent of each such payment

not paid within fourteen days after due, together with

interest thereon at the rate of six percent per annum

computed from the date each payment became due

until paid.

3. Respondent shall pay for or reimburse Claimant

for the reasonable cost of such medical benefits as the

nature of Claimant’s injury shall require pursuant to

Section 7 of the Act.

4, Ail payments now due Claimant shall be paid

forthwith in a lump sum.

5. Respondents shall receive credit for all ap-

propriate payments made to Claimant in this matter.

6. Claimant’s counsel shall have twenty days from

the date hereof to apply for an attorney fee, with a

38a

copy to Respondents, who shall have an added ten

days to comment.

/s/ Freeman C. Murray

FREEMAN C. MURRAY

Administrative Law Judge

Dated: November 14, 1977

Washington, D.C.

FCM :seg

* U. S. GOVERNMENT PRINTING OFFICE; 1960 309912 217