Petition — RONALDO TUSCO v. PERINI NORTHRIVER ASSOCIATES (Nos. 80-651, 80-639)

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30-651 ado FILED

No. 80- | QGK 17 1980

iim

Supreme Court, U.S,

eragianc MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1980

RONALD FUSCO,

Petitioner,

PERINI NORTH RIVER ASSOCIATES AND

HARTFORD ACCIDENT AND INDEMNITY CO.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

EPSTEIN ¢& EPSTEIN

Attorneys for Petitioner

Ronald Fusco

450 SEVENTH AVENUE

New YoRK, N.Y. 10001

(212) 868-3050

Of Counsel:

BERNARD S. EPSTEIN

OCTOBER 16, 1980

QUESTIONS PRESENTED

(1) Whether a construction worker

engaged in the construction of a sewage

plant to eliminate pollution of navigable

waters, and whose principal duties are

performed on such navigable waters is a

"person engaged in maritime employment"

within the purview of §902(3) of the Long-

shoremens and Harbor Worker's Compensa-

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

seq. |

(2) Whether the 1972 amendments

to the Longshoremens and Harbor Worker's

Compensation Act had the effect of de-

priving water based construction work-

ers of benefits which they would have

enjoyed prior to such amendments.

TABLE OF CONTENTS

QUESTIONS PRESENTED.........

OP INIONS BELOW eseeneeseeeeees#2e#2nesees

JURISDICTION. eeee3#es#ss#esesesee#e#see*es#se#ee#e?

STATUTORY PROVISIONS IN-

de. eee ee ew he ee ee os

STATEMENT OF THE CASE.......

THE Dtbdh biwen se Ob «060608

THE PROCEEDINGS BELOW.......

REASONS FOR GRANTING THE

Dh Wh. ok sitihe ss gp 6666520668

POINT I: THE NATURE OF PE-

TITIONER FUSCO'S ACTIVITIES

CLEARLY CAST HIM IN THE

ROLE OF "MARITIME EMPLOYEE"

WITHIN THE PURVIEW OF

§2(3) OF THE LONGSHORE-

MEN'S AND HARBOR WORKERS '

COMPENSATION ACT....eseeees

POINT II: PETITIONER FUSCO

WOULD HAVE BEEN COVERED

UNDER THE PRE-AMENDMENT

STATUTE. THE PURPOSE OF THE

AMENDMENT WAS TO EXPAND

COVERAGE, AND NOT TO EX-

CLUDE PREVIOUSLY COVERED

EMPLOYEES... ccccccccccceces

ie cc te ee bes wa e.e's 6-6

Page

(iii)

TABLE OF CITATIONS

CASES:

Brown & Root Inc. v. Joyner,

607 F.2d BOOT cihhewsécvk ives

Calbeck v. Travelers In-

surance Company, 3/0 U.S. 114

ef} herrea ae a ae a

Davis v. Dep't. of Labor and

Industries, 317 U.S. 249

CLOW? 640% ove 4s 8 hE 8 O e*eve#*ee#ees¢ ee

Dixon v. Costing, Deputy

Commissioner, 235 F. Supp.

25, (D.C. Vaer PT ua b Wee's’ s

Fusco v. Perini North River

Assoc., 601 F.2d 059 (ond

Cir. 1979) (decided June

SPs PR L.Gk seh 0 ee 046 +e ee

Fusco v. Perini North River

Assoc., 622 F.2ag Llll (2nd

Cir. Rs ake ea ewe be

Hatchett v. Duncanson-

Harrelson Co., 8 BRBS 173,

O. -487 (April 24,

Py | Rr eee re ne eee

Hed v. Duncanson-Harrelson

Co., 7 BRBS , le a

260 (Feb. 24, 1978) e*eeee#ee#e#ee#es#es

Hunter v. Duncanson-Harrelson

Co., 8 BRBS 83, BRB No. 77-

433 (Feb. 24, Sy 2 Ee are

Page

21,46

1,17,

2,20

(iv)

Morrison-Knudsen Co. Vv.

hs Commissioner,

F. ( oie 9, L961) eee 42

Northeast Marine Terminal Co.

v. Caputo, 432 U.S. 249 (1977). Hf al

’

Odom Const. Co. v. U.S. Dept.

Of Labor, 622 “?. 2d re ake 36,

Parker v. Motor Boat Sales, Inc.,

3L4 U8. 244, 247, G2 S.CE. 2él,

86 L.Ed 184 AEA us i eakee 40

Pennsylvania R.R. Co. v.

O'Rourke, 344 U.S. 334 (1953)... 40

Peter v. Arrien, 325 F. Supp.

I361 (1971) affirmed 463 F.2d

252 (3rd ees Pee ees Ce a ald aluie « 39,41,

P.C. Pfeiffer Company, Inc.

et al v. Ford, et al., 444 U.S.

69 (1979), 62 L.Ed.2d 225, 100

Sit Ge Db tak ee Oh ahmed abiskeee 2,19,20,

7 23,37,47

Kenneth C. Sharp v. Pacific

Gas & Electric Company, 2

BRBS 351, 10/30/75 43

, e*eeecseee#ev#eee#*#ee#ee#es

Voris v. Eikel, 346 U.S. 328,

333 2) BRD TARGET Ne CAG en ae 43

(v)

STATUTES:

Longshoremen's and Harbor

Worker's Compensation Act,

(33 om oe - 901 et. eee oF

Federal Water Pollution

Control Act (33 U.S.C.S.

$1251 Ot. SOG.) occcccccccccesecs 5,7,

(vi)

TABLE OF APPENDICES

Page

APPENDIX A

Opinion of the United States

Court of Appeals for the

Second Circuit dated June

4, 1980 eeeee#ee#ess e*eeecsee#e##e#8s¢ A-1

APPENDIX B

Decision and Order of the

United States Court of

Appeals for the Second

Circuit Denying Rehear-

ing and Rehearing En Banc

dated August 19, 1980.... A-6

APPENDIX C

Decision and Order of the

United States Supreme

Court dated January 14,

LPOG scccosccccccocecscéesne§ AMG

APPENDIX D

Opinion of the United States

Court of Appeals for the

Second Circuit dated June

29, ATF ccccccvcecvceccee A=9

APPENDIX E

Decision and Order of the

United States Court of

Appeals for the Second

(vii)

Circuit Denying Rehear-

ing & Rehearing En Banc

dated August 21, 1979....

APPENDIX F

Decision and Order of the

Benefits Review Board

of the Department of

Labor, together with the

dissenting opinion of

MGMDOE NLL LOE. ssscccevsece

APPENDIX G

Decision and Order of the

Administrative Law Judge

in the case of Ronald

PUROO « s.b:0.6 0 tbs bees enbeneoe

APPENDIX H

Decision and Order of the

Administrative Law Judge

in the case of Bernard

DRLA AVE sc pec se sei weccetes

APPENDIX I

Statutory Provisions In-

Wak bak beedaeee eee 8

A-32

A-36

A-87

A-96

A-104

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF AP-

PEALS FOR THE SECOND CIRCUIT.

Petitioner, Ronald Fusco, respect-

fully prays that a Writ of Certiorari

issue to review the judgment and opin-

ion of the U.S. Court of Appeals for

the Second Circuit entered on June 4,

1980.

The original judgment and opinion

of the Court of Appeals for the Second

Circuit entered on June 29, 1979 (Fusco

et al v. Perini North River Associates,

et al, 601 F.2d 659), set aside the

order of the Benefits Review Board

dated November 30, 1978, denying

coverage to petitioners Fusco and

Sullivan under the Longshoremen's and

Harbor Worker's Compensation Act, 33

U.S.C. §901 et seq.

Thereafter, this Court, in Perini

North River Associates v. Fusco, Sup.

Ct. of U.S. Oct. Term 1979 No. 79-759

January 14, 1980, 100 Sup. Ct. 697

(1980), vacated the judgment of the

Court of Appeals for the Second Circuit

and remanded the case to the Court of

Appeals for "further consideration in

light of P.C. PFEIFFER CO. v. FORD,

444 U.S. 69" (Nov. 27, 1979).

The Court of Appeals for the

Second Circuit in its decision of

June 4, 1980 (Fusco et al v. Perini

North River Associates, et al, 622

F.2d 1111), on the basis of the

reasoning in P.C. Pfeiffer Co. v.

Ford (infra) denied the petitions of

Fusco and Sullivan and affirmed the

Benefit Review Board's November 30,

1978 order denying coverage to

petitioners.

Petitioner Ronald Fusco seeks the

issuance of a Writ of Certiorari to re-

view the ruling of the Court below on

the issue of coverage under the Act.

OPINIONS BELOW

The opinion of the Court of Appeals

(Appendix, hereinafter "App. A.") is

dated June 4, 1980 and reported at 622

F.2d l1lll. A timely petition for re-

hearing and rehearing en hanc was denied

by order dated August 19, 1980 (App.

B). The order is contained in the

published opinion. The order of this

Court dated January 14, 1980 remanding

the case to the Court of Appeals for

further consideration (App. C) is re-

ported at 100 S. Ct. 697 (1980). The

original opinion of the Court of Ap-

peals (App. D) is dated June 29, 1979

and reported at 601 F.2d 659, as is its

decision denying rehearing and rehearing

en banc dated August 21, 1979 (App. E).

The decision of the Benefits Review

Board of the Department of Labor and

dissenting opinion of Member Miller

dated November 30, 1978 and January 19,

1979, respectively (App. F) is reported

at 9 BRBS 378.* The Administrative Law

Judge decision in the case of Ronald

Fusco was filed on December 28, 1977 and

reported at 76 LHCA 97 (App. G). The

Administrative Law Judge decision in the

case of Bernard Sullivan was filed on

August 26, 1977 and reported at 77 LHCA

85 ew H).

*The Benefits Review Board Service

(BRBS) is the unofficial reporter of

the Board's decisions. The LHCA re-

ports are also contained in the BRBS.

JURISDICTION

The judgment of the Court of Ap-

peals for the Second Circuit was enter-

ed on June 4, 1980. On August 19,

1980 the Court of Appeals denied

Petitioner Sullivan's timely Petition

for Rehearing and Rehearing En Banc.

The jurisdiction of this Court

is invoked under 28 U.S.C. §1254(1).

STATUTORY PROVISIONS INVOLVED

Section 902(3) of the Longshore-

men's and Harbor Worker's Compensation

Act, as amended, 33 U.S.C. §902(3)

(1970 ed. and Supp. V is set forth as

Appendix I.

Section 125l(a) (1) (2) of the

Federal Water Pollution Control Act

is also set forth in Appendix I.

STATEMENT OF THE CASE

The Facts

On January 8, 1975, the petitioner,

Ronald Fusco, was 29 years old and had

been employed as a laborer by Perini

North River Associates for about two

years. (5)*

Perini North River Associates was

engaged in the construction of the

foundation of a sewage treatment fa-

cility at a site on the Hudson River,

a navigable waterway of the United

States, in the vicinity of West 138th

Street, Borough of Manhattan, City of

New York.

*¥Where preceded by " A “" the

numerical references herein are to

pages of the Joint Appendix. Other

numerical references pertain to

pages of the transcript of the

proceedings before the Admin-

istrative Law Judge in Fusco v.

Perini. ne

The project, entitled the North

River Pollution Control Project, had

been contracted by the City of New

York in 1971 or 1972, with financing

wholly or in part by the United |

States Environmental Protection Agency.

Its purpose was to eliminate pollution

in the navigable waters of the Hudson

River (110, 123), and had been made

possible by the Federal Water Pol-

lution Control Act (33 USCS § 1251

et seq) which authorized Congress to

provide Federal Funds to municipal-

ities for the erection of such

facilities.

The national policy expressed in

the Act was to eliminate the discharge

of pollutants into the navigable

waters, and to achieve water quality

providing for "the protection and

propagation of fish, shell fish and

wildlife and [provide] for recreation

in and on the water." (§1251(1) (2))

In connection with the con-

struction of the substructure of such

facility, Perini's employees were

driving caissons into the river bed

and building a concrete pier on top

of the caissons. (8, 10, 122, 123)

After completion of the concrete

pier or substructure by Perini, the

plans called for the erection of the

sewage treatment facility to be

situated upon the concrete pier.

On the river side (or West side)

of the gradually expanding pier,

Perini owned, operated, maintained

and moored five rotary drill barges,

two churn drill barges and seven or

eight supply barges. It also owned

and operated two small tug boats which

it used to position the barges. (124,

125)

In addition to the fourteen or

fifteen large barges and tug boats,

a number of smaller vessels called

"float stages" were also employed on

the job. These were wooden rafts

approximately six feet in width by

fifteen feet in length, constructed

of 12 by 12s. The "float stages"

contained no engine and no oars. The

men occupying these rafts would pull

themselves along the water from cais-

son to caisson by holding onto pieces

of steel welded across the tops of the

Caissons. These vessels during high

tide were used to transport equipment

of the dock builders from the shore

to each working site, and from one

working site to another. (ll, 12, 13,

14, 126, 127)

Petitioner, Ronald Fusco, was a

laborer and a member of Local 731 of

the Laborers Union. His primary

function, during the two years of his

employment at the job site, was to as-

sist the dock builders, the men actu-

ally installing the pier on top of

the caissons. In aiding the dock

builders, the petitioner perfofmed

several specific tasks. The first of

such duties was to transport required

tools and equipment from the ware-

house on the shore to the working

sites, and thereafter from site to

site. The dock builders were usual-

ly working on the grillage above

the caissons or on forms suspended

from the grillage. If the tide was

low, or if the working site was quite

close to the shore, the petitioner

would transport such tools and equip-

ment by carrying them across the grill-

age on foot. If the tide was high, he

would deliver the equipment by using

one of the rafts or "float stages",

pulling himself across the water to

the working site and handing the equip-

ment up to the dock builders on the

grillage. At the end of each working

day, the tools and equipment used

during that day were returned to the

warehouse by the same means of trans-

portation.

In addition to transporting

equipment thereon, Fusco assisted the

dock builders by utilizing the "float

stages" to perform work on the under-

side of the pier and other portions

thereof, which were accessible only

by use of such "float stages". (4,

5, 11, 14, 85)

Significantly, during the two

years of his employment, with small

exception, the petitioner spent some

time during each and every day, on

one of the above described "float

stages". At the same time, follow-

ing the directions of his employer,

he wore a life jacket while perform-

ing his work. (15)

In addition to his duties on

the "float stages", the petitioner

was also called upon to perform

work on the barges owned by Perini.

On several occasions during his

employment, he was directed to and

did enter the holds of such vessels

to repair leaks. (16, 17, 18)

Petitioner Fusco also assisted the

dock builders in working on the cais-

sons embedded in the river bed. When

it proved necessary to cut down a cais-

son, the dock builders would use a

torch to reduce the metal exterior, and

he would empty the interior with a pick

and shovel, or pneumatic drill.

Another of the petitioner's duties was

to help assemble the concrete forms

hanging from the grillage. Such forms

were suspended over the surface of the

viver. (18, 19, 20; 21,.22, 23)

The accident occurred at about

2:30-3:00 p.m. on January 8, 1975.

Fusco was assisting a crew of dock

builders working over the river, ata

point on the pier some 200 to 300

feet from the shore, between West

138th and West 140th Streets. They

were involved with some forms suspended

from steel beams, affixed to vertical

beams imbedded in the caissons. Fusco,

positioned atop of the grillage above

the forms, was carrying air hoses for

an impact drill being used to tighten

the clamps on the grillage from which

the forms were hung. The particular

form at the accident site was a metal

one about 8 1/2 feet in width by 4-6

feet in depth. While Fusco was descend-

ing an unsecured crude wooden ladder of

"two by fours" into the form, the ladder

partially turned, spinning him to his

right and into the form. His head

struck the beam, upon which the ladder

rested, his helmet fell off and he fell

to the bottom of the form. (26, 27, 28,

57, 58, 59, 60, 61, 93).

THE PROCEEDINGS BELOW

Fusco filed a claim for benefits

under the Longshoremen's and Harbor

Worker's Compensation Act, as amended

86 Stat. 1251, 33 U.S.C. §901, et seq.

(1970 ed., Supp. V). Perini contro-

verted the claim, raising inter alia

the issue of coverage.

A formal hearing was conducted by

Administrative Law Judge Philip Lesser

who awarded benefits to Fusco holding

that he was engaged in maritime employ-

ment and thus covered under the Act.

Ronald Fusco v. Perini North River As-

sociates, Case No. 76-LHCA-927 (App. G).

kanther Administrative Law Judge

rejected the claim of Bernard Sullivan,

a Perini employee, injured ina

separate accident at the site of the

North River Pollution Control Project.

Bernard Sullivan v. Perini North River

Associates, Case No. 77-LHCA-85 (App. H).

On appeal, the Benefits Review Board

consolidated the above claims with two

other cases arising out of che North

River Pollution Control Project, since

they involved common questions of law

and fact. By majority decision dated

November 30, 1978, member Miller dissent-

ing and rendering a separate Opinion, 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 em-

ployment as required by §902(3) of the

Act (App. F).

Fusco and Sullivan filed Petitions

for Review of the Board's Order in the

United States Court of Appeals for the

Second Circuit. The Director, Office

of Workers' Compensation Programs also

petitioned the Second Circuit for review

of the Board's decision in the four con-

solidated cases. In reversing the deci-

sion of the Benefits Review Board, the

court rejected the occupational test of

"maritime employment". The court

statei: "[Wle interpret the critical

phrase "person engaged in maritime em-

ployment" geographically so as to in-

clude any person whose principal duties

are performed on navigable waters as

that term was understood before 1972."

Fusco v. Perini North River Assoc., 601

F.2d 659,669 (2nd Cir. 1979) (A229). Under

this interpretation, the court held

that Fusco and Sullivan were persons

engaged in maritime employment and hence,

covered employees under §902(3) of the

Act. The court also held that the

Director, Office of Workers' Compen-

sation Programs lacked standing to

petition for review under 33 U.S.C.

§921(c) and dismissed his petition.

601 F.2d at 670 (A=-30).

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 Second Cir-

cuit Court of Appeals, requesting

rehearing and rehearing en banc. The

Petition for Rehearing and Rehearing

En Banc was denied on August 21, 1979.

601 F.2d at 670 (A-33).

Perini and Hartford thereupon

petitioned this court for a Writ of

Certiorari to review the deter-

mination of the Court of Appeals and

on January 14, 1980 the following

order was entered:

"The petition for a writ of

certiorari is granted. The

judgment is vacated and the

case is remanded to the United

States Court of Appeals for

the Second Circuit for

further consideration in light

of P.C. Pfeiffer Co. v. Ford,

444 U.S. (1975). Mr.

Justice Brennan, Mr. Justice

Marshall and Mr. Justice

Blackmun dissent." Perini

North River Associates v.

Fusco, 100 5. Ct. (1980) 697

(A-8 ) .

The Court of Appeals thereupon

rendered another decision on June 4,

1980 wherein by virtue of its own

interpretation of this court's reason-

ing in P.C. Pfeiffer Co. v. Ford, it

denied the petitions of Fusco and

Sullivan and affirmed the decision of

the Benefits Review Board.

The Benefits Review Board dent-

ing coverage under thé’act on the

ground that "the claimant's activities

had nothing significant to do with

navigation and commerce on navigable

waters." Fusco v. Perini North River

Associates, 622 F.2d 1111 (2nd Cir.

1980) (A-5).

Petitioner Sullivan thereupon

filed a timely petition for rehearing

and rehearing en banc which was denied

on August 19, 1980. (A-7)

REASONS FOR GRANTING THE WRIT

The instant petition squarely

presents this court with the question

of whether a construction worker en-

gaged in the construction of a

sewage plant to eliminate pollution of

navigable waters and whose principal

duties are performed on such navigable

waters meets the occupational require-

ments defined by this court in P.C.

Pfeiffer Company Inc., et al v. Ford,

et al (decided November 27, 1979), 444

U.S. 69, for coverage under the Long-

shoremen's and Harbor Worker's

Compensation Act, as amended, 86 Stat.

1251, 33 U.S.C. § 901 et seq. (1970

ed., Supp. V). Moreover the decision

below, denying coverage under the Act

_ to such a construction worker, is in

conflict with the recent decisions of

the U.S. Court of Appeals for the

Fifth Circuit in Odom Const. Co. v.

Dept. of Labor (decided July 21, 1980),

622 F.2d 110, and the Fourth Circuit

in Brown & Root Inc. v. Joyner

(decided October 26, 1979), 607 F.2d

1087) wherein coverage was held to

apply to construction workers engaged

in activities similar to those tasks

performed by the petitioner herein.

The decision below further raises the

question of whether the 1972 amend-

ments to the Longshoremen's and Harbor

Worker's Compensation Act and the effect

of depriving previously covered water

based construction workers of benefits

which they would have enjoyed under the

pre-1972 law.

The questions raise important, basic

issues of statutory construction, the

resolution of which are essential for

the effective administration of the Act.

POINT I

THE NATURE OF PETITIONER FUSCO'S

ACTIVITIES CLEARLY CAST HIM IN

THE ROLE OF "MARITIME EMPLOYEE"

WITHIN THE PURVIEW OF §2(3) OF

THE LONGSHOREMEN'S AND HARBOR

WORKER'S COMPENSATION ACT.

In P.C. Pfeiffer Company, Inc., et

al v. Ford, et al (decided November 27,

1979), 444 U.S. 69, this Court defined

the Act's occupational requirements as

follows:

"The term ‘maritime employment'

refers to the nature of a work-

er's activities. Thus, §2(3)

uses the phrase 'longshorem[e]n

or other person[s] engaged in

longshoring operations’ as one

ex le of workers who engage in

maritime employment no matter

where they do their job. [emphasis

ours] [p. 78] kkkkkkkhkkkkkkkkkkkak

the language of §2(3) provides that

an employee is ‘any person engaged

in maritime employment, including

any longshoreman or other person

engaged in longshoring operations,

and any harbor-worker including

a ship repairman, shipbuilder and

ship-breaker KkKkKRKKKRKKKKKKRKKRKRKKASE

We understand the word ‘including'

to indicate that ‘lonshorin

Operations' comprise a part of the

Larger group of activities that

make up ‘maritime employment '

[emphasis ours] [p. 77 Note 7].

We do not suggest that the

scope of maritime employment

depends upon the vagaries of

union jurisdiction, ******#kee*

Instead the crucial factor is

the nature of the activity to

which a worker may be assigned."

[p. 82].

The Court below, in its decision

of June 4, 1980 misinterpreted the

spirit and intent of this court's hold-

ing in Ford when it said:

"In the cases at bar the claimants'

activities had nothing significant

to do with navigation or with com-

merce on navigable waters. They

were engaged exclusively in con-

structing a sewage disposal plant.

It is not significant that the

plant was being constructed so

that sewage would not cause pol-

lution of navigable waters; nor

that the claimants performed part

or all of their work while upon

floating stages or upon barges.

The only sense in which the claim-

ants' activities were maritime was

in the sense of their locus. To

base a decision upon the locus of

work is to found it upon a

geographic concept - a foundation

precluded by the reasoning in the

Ford case." Fusco yv. Perini (A-5).

In the instant case, Fusco's em-

ployer, Perini North River Associates,

was engaged in constructing a concrete

pier extending some 300 or more feet

into and over the navigable waters of

the Hudson River. This structure was

to hold upon it an anti-pollution

facility to be utilized for the ex-

press governmental purpose of al-

leviating pollution in the Hudson River.

In furtherance of the work, it maintain-

ed a fleet of drill bearing craft,

supply barges, two tug boats and numer-

ous rafts or "float stages", which were

used on a daily basis for transporting

men and material to various working

sites on the expanding pier. Perini

was manifestly a "maritime employer",

as defined in Section 2(4) of the Act,

which "defines an employer as one ‘any

of whose employees are employed in

maritime employment, in whole or in

part, upon the navigable waters of

the United States' as broadly defined

by §3(a)." [Ford, supra, at p. 78]

By the same token, the activities

assigned to and performed by petition-

er, Ronald Fusco, were similarly

maritime in nature. During each work-

ing day, while regularly transporting

equipment by "float stage", conducting

repairs on barges, actively assisting

in the construction of a pier on

navigable waters to house a pollution

control facility and while wearing a

life jacket as required, Fusco was

manifestly performing the role of

"maritime employee" within the pur-

view of Section 2(3) of the Act, as

defined by this Court in Ford. More-

over, the nature of the work in which

Fusco was engaged was clearly related

to the national goals and policy set

forth in the Federal Water Pollution

Control Act [33 U.S.C.S. §§1251- 1376].

Certainly, when Congress spoke of "the

protection and propagation of fish,

shellfish"...and "recreation in and on

the water" (§1251(2), it meant to deal

with the troubles of the fishing in-

dustry and the problems of pleasure

craft owners who had been severely

damaged and inhibited by the pollution

of navigable waters. In §1251(4) and

§1255 of the Act, Congress, through

the Environmental Protection Agency,

provided Federal funds to enable

municipalities (like the City of New

York, in the instant case) to con-

struct such anti-pollution facilities.

Such construction manifestly bore a

direct relationship to maritime ac-

tivities. Significantly, unlike

apartment houses or other dwellings,

which might incidentally be erected

upon navigable waters for scenic

purposes, the sewage treatment fa-

cility here could only serve its

expressed purpose of eliminating

pollution in the Hudson River, if

erected upon navigable waters.

Furthermore, the fact that

Fusco and his employer, Perini, were

engaged in the construction of the

concrete pier, upon which the sewage

treatment facility was to be later

erected, rather than upon the fa-

cility itself, has no relevancy when

considered in the light of Ford.

There, this Court in extending bene-

fits to a warehouseman and a cotton

header, held:

"A worker responsible for some

portion of that activity [moving

Cargo directly from ship to land

transportation] is as much an

integral part of the process of

loading or unloading a ship as

a person who participates in the

entire process." [emphasis ours?

[pp. 82, 83].

Following the same line of reason-

ing, Fusco, although employed only upon

the foundation of the sewage treatment

facility, was as much an integral part

of the process of erecting the entire

facility as if he had participated in

the construction from foundation to

roof.

Similarly, the fact that Fusco was

neither a longshoreman nor a member of

a maritime union is not dispositive of

his status under the Act. Clearly, his

daily tasks "comprise[d] a part of the

larger group of activities that make up

‘maritime employment'." [Ford, supra,

p. 77, Note 7].

While the ultimate purpose of the

North River Pollution Control Project,

upon which Fusco was employed, did in

fact bear a significant relationship

to maritime activities, coverage under pe

the Act shou! i not, as viewed by the

court below, be predicated solely upon

the expressed, ultimate goals of the

project, with no consideration what-

soever of the activities engaged in

by the individual workers employed

thereon.

When this Court in Ford (supra,

p. 78),said "The term 'maritime em-

ployment refers to the nature of a

workers activities" it clearly meant

that the issue of coverage in each

case should be determined by an exam-

ination of the principal duties per-

formed by the employee claiming such

coverage. Nothing contained in such

opinion imposed a further limitation

upon coverage, by requiring that a

construction worker engaged in maritime

activities, be employed upon a con-

struction project with an undisputably

maritime purpose.

Member Miller of the Benefits Re-

view Board, in his dissenting opinion

(A-79) also viewed the issue of cover-

age as unrelated to the ultimate pur-

pose of the project when he said:

"In these four cases the claimants.

were all engaged in employment over

navigable waters which involved job

functions and responsibilities

virtually identical to those per-

formed by workers involved in the

construction of docks, piers,

wharves, bridges and other struc-

tures over and upon navigable

waters. Indeed, two of the claim-

ants were described, and accurately

I believe, as dock builders. Each

Claimant was exposed to the same

type of risk and hazard and subject-

ed to a type of accident similar to

that experienced by other mari-

time workers over navigable

waters. In similar situations,

the Board has held that the em-

ployees were covered. See, e.g.,

Hed v. Duncanson-Harrelson Co.,

’ Oo. baa °

24, 1978); Hunter v. Duncanson-

Harrelson Co., ’

No. 77-433 (March 30, 1978);

Hatche tt v. Duncanson-Harrelson

Co., 8 BRBS 173, BRB NO. 77-457

(April 24, 1978)."

The Second Circuit, in denying

coverage overlooked the irrefutable

fact that the activities, and parti-

cularly the risks inherent in and to

the performance of such tasks, of a

construction worker engaged in the

erection of a structure over water,

markedly differ from those duties

and attendant hazards associated with

construction upon land. Here, the

very nature of the work, and the

manner in which it was performed,

consisting of construction of a pier

on navigable waters, and necessitating

the utilization of float stages (rafts)

and the wearing of life jackets reveals,

that the activities engaged in by Fusco

on a daily basis were in and of them-

selves maritime in nature. By artificial-

ly distinguishing "locus" from "activ-

ities" to deny coverage, the Court below

implied that employees can have regu-

larly assigned duties that are performed

on water which are not in any sense

maritime. In Ford, this court gave no

indication that it would adopt such a

physically untenable approach in ap-

plying the Act to water based employment

nor does the Act itself suggest such a

construction.

The Court below in affirming the

decision of the Benefits Review Board,

scrupuously ignored the maritime nature

of the activities engaged in by Fusco

and Sullivan and declined coverage on

the premise that "They were engaged

exclusively in constructing a sewage

disposal plant", Fusco v. Perini

(A-5)*.

This restrictive distinction

proposed by the Second Circuit directly

contravenes both the spirit and intent

of the Act as defined in this Court in

Caputo/Blundo p. 273 (supra) viz.:

*NOTE. The majority of the Benefits

Review Board in Matson v. Perini

North River Associates, 78 LHCA 693

(September 15, 1978) extended

coverage to a Perini employee work-

ing on the same North River Pollution

Control Project as Fusco. At the

time of their respective injuries,

Fusco was working on the pier con-

stituting the actual substructure

of the sewage disposal plant while

Matson was involved in the con-

struction of a pier for the docking

of barges upon which the processed

sludge from the same sewer plant

was to be loaded.

"Both the text and the history

demonstrate a desire to provide

continuous coverage throughout

their employment to these

amphibious workers who, with-

out the 1972 Amendments, would

be covered only for part of

their activity."

The effect of the decision appealed

from is to make coverage dependent

not upon an employee's activities but

upon his employer's assignment

policies. Such reasoning was express-

ly rejected by this Court in Ford

(supra), p. 83 when it said:

"Congress intended to apply a

simple, uniform standard of

coverage. Adoption of the

petitioners' test would con-

flict with that goal, because

any individual worker's

coverage would depend upon

the assignment policies of

his employer. For example,

a land-based worker would

be covered if his employer

allowed him to alternate as-

signments with co-workers who

work on the water, but he

would not be covered if the

employer never allowed him

to board a ship. Congress

did not intend the Act's cover-

age toshift with the employer's

whim."

In Odom Construction Co. v. U.S.

Dept. of Labor, 622 F.2d 110, decided

July 21, 1980, the United States Court

of Appeals for the Fifth Circuit inter-

preted this court's reasoning in Ford

to apply coverage under the Act to a

normally land-based construction

worker engaged in a two-day job that

required moving concrete blocks located

on the bank of a navigable canal and

where approximately 20% of his employ-

er's work involved bulk heading and

pile driving in navigable waters, viz.:

"First, the act of moving the

blocks is maritime work. Section

902(3) lists harbor-workers

among the types of workers cover-

ed. It is at least arguable that

the repair of moorings, even of

those not adjacent to main docks,

is a type of job that could be

performed by a typical harbor-

worker. Yet we need not hold

that Maze was engaged in "“harbor-

working" at the time of his

injury, for § 902(3) by its own

terms states that longshoremen

and harborworkers are not the

only persons engaged in maritime

employment. Cf. P. C. Pfeiffer

Co. v. Ford,

* * * * *

Where, as here, the claimant was

doing maritime work that required

him to go into the water and

where a significant part of the

employer's overall work, 20%,

was maritime, the policy of the

Act strongly favors coverage."

In the case at bar, 100% of Perini's

work involved driving caissons into the

river bed and building a concrete pier

on top of the caissons (3, 10, 122, 123).

Perini was thus far more of a maritime

employer than Odom. Similarly, Fusco

who during the two years of his employ-

ment, with small exception, spent some

time during each and every day on "float

stages" wearing a life jacket (15) was

far more Of a maritime employee than

Maze who only spent two days on water.

It requires a strained interpretation

of this court's opinion in Ford wherein it

extended benefits to land-based workers

such as a warehouseman and a cotton head-

er to perceive an intention to deny the

same coverage to a manifestly water-based

employee like Fusco.

POINT if

PETITIONER FUSCO WOULD HAVE BEEN

COVERED UNDER THE PRE-AMENDMENT

STATUTE. THE PURPOSE OF THE

AMENDMENT WAS TO EXPAND COVERAGE,

AND NOT TO EXCLUDE PREVIOUSLY

COVERED EMPLOYEES.

In Calbeck v. Travelers Insurance

Company, 370 U.S. 114, 117 (1962), this

court defined pre-amendment coverage as

follows:

"Our conclusion is that Congress

invoked its constitutional power

so as to provide compensation for

all injuries sustained by em-

ployees on navigable waters

whether or not a particular in-

jury might also have been within

the constitutional reach of a

state workmen's compensation

law."

In Peter v. Arrien, 325 F. Supp. 1361,

1365 (1971), affirmed 463 F.2d 252 (Third

Circuit), a pre-1972 case, the District

Court in determining which employees come

within Section 2(3) of the Act held, as

follows:

"Section 3 of the Longshoremen's

Act, 33 U.S.C. § 903 contains no

reference to ‘maritime employment’.

Rather that language is contained

in Section 2(4) of the Act, 33

U.S.C. § 902 (4) which defines an

employer as ‘an employer any of

whose employees are employed in

maritime employment in whole or

in part, upon the navigable waters

of the United States * * *'. The

term ‘maritime employment' is

directed at the employer and not

at the work that the employee is

doing. Pennsylvania Railroad Co.

v. O'Rourke, 344 U.S. 334, 73

S.Ct. 302, 97 L.Ed. 367 (1953) **

kkkkkhkkkkkkhkhkhkhkkaekkhkkkhkhkhkkhkkk

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In the case at bar, Reid employed

one Joseph Yardley to operate a

motorboat .for the purpose of trans-

porting men and material to the

pier in the middle of the river.

This is clearly maritime activity

under the Longshoremen's Act.

Parker v. Motor Boat Sales, Inc.,

314 U.S. 244, 247, 62 S. Ct. 221,

86 L.Ed. 184 (1941)."

In the instant case, Perini was

engaged in constructing a concrete pier

extending some 300 or more feet into and

over the navigable waters of the Hudson

River. This structure was to hold upon

it an anti-pollution facility to be

utilized for the express governmental

purpose of alleviating pollution in the

Hudson River. In furtherance of the

work, it maintained a fleet of drill

bearing craft, supply barges, two tug

boats and numerous rafts or "float

stages", used on a daily basis for

transporting men and material to various

working sites on the expanding pier.

How else could Perini be described, if

not as a “maritime employer" within the

purview of the pre-amendment Act, as

defined in Peter v. Arrien (supra)?

By the same token, the work of

petitioner, Ronald Fusco, was no less

Maritime in naturé than that of his

employer. In each working day,

regularly transporting equipment by

"float stage", performing repairs on

barges and actively assisting in the

construction of a pier on navigable wa-

ters to house a pollution control facil-

ity, while wearing a life jacket as re-

quired, clearly cast him in the role of

"Maritime employee" within the purview of

the pre-amendment Act.

In pointing out the pre-amendment

coverage, which would have been applicable

here, the Administrative Law Judge cogently

reviewed analagous situations as follows:

"But the courts have already held

that the term "maritime employment"

includes such non-traditionally

maritime activities as, for example,

the construction of a driver diversion

tunnel in connection with the build-

ing of a dam (Morrison-Knudsen Co. v.

O'Leary, Deputy Commissioner, 288 F.2d

542 (C.A. 9, 1961)), the operation of

a crane in connection with the con-

struction of a bridge (Dixon v.

Costing, Deputy Commissioner, 238 F.

Supp. 35, (D.C. Va., 1965)), and the

activities of a steelworker and of

a crane operator in dismantling a

bridge (Davis v. Dep't. of Labor and

Industries, 317 U.S. 249 (U.S. Sup.

Ct., 1942) and Peter v. Arrien, Deput

Commissioner, 463 F.2d 252 (C.A.3, 1572).

And it has been held by the Benefits

Review Board in affirming an Admin-

istrative Law Judge decision that

an engineer was engaged in “maritime

employment" while in a scuba diving

training program for the purpose of

inspecting underwater facilities

of a public utility company (Kenneth

C. Sharp v. Pacific Gas & Electric

Company, 2 > :

have no hesitancy in concluding that

a construction laborer who works on

a raft to help construct a fixed

structure lying directly above the

water, is just as much engaged in

maritime employment as a marine

diver who inspects fixed structures

lying below the water." (A-91,

92),

In Northeast Marine Terminal Co. v.

Caputo, 432 U.S. 249, 268 (hereinafter

referred to as Caputo/Blundo), this Court

held:

"The language of the 1972 amend-

ments is broad and suggests that

we should take an expansive view

of the extended coverage. In-

deed such a construction is ap-

propriate for this remedial “legis-

lation. The act ‘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)." (emphasis ours)

In Caputo/Blundo, p. 275 (supra),

this court in rejecting the restrictive

"point of rest" theory said:

"This contention that Congress

intended to use the point of rest

as the decisive factor in the

"status' determination has several

fatal weaknesses. First, the term

"point of rest' nowhere appears in

the Act or in the legislative

history. It is difficult to under-

stand why, if Congress intended to

stop coverage at this point, it

never used the term. The absence

of a term that is claimed to be

so well known in the industry is

both conspicuous and telling.

But it is not simply the term's

unexplained absence that under-

mines petitioners' theory. More

fundamentally, the theory is

simply too restrictive, failing

to accommodate either the

language or the intent of the

1972 Amendments."

Had Congress intended that, of the

employees injured on navigable waters,

only those workers whose duties bore a

"significant relationship to maritime

activities" should be covered, it would

have clearly expressed such intention.

Instead, the only limitations on

coverage in the Congressional Commit-

tee reports, are those addressed to

newly-covered land based employees ad-

ded by the Shorewood Extension of the

1972 Amendments: (Caputo/Blundo,

p. 266 (supra)

"Thus, employees whose responsi-

bility 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. *********

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 ad-

joining navigable waters. S.

Rep. 13; H.R. Rep. 10-11."

With regard to employees who would

have been covered prior to the 1972

Amendments as defined by the Court in

Caputo/Blundo, p. 273 (supra), the

intention of Congress was to expand

rather than limit coverage, viz:

"Both the text and the history

demonstrate a desire to provide

continuous coverage throughout

their employment to these

amphibious workers who, without

the 1972 Amendments, would be

covered only for part of their

activity."

The Court below in its initial

decision in the case at bar construed

the spirit and intent of the 1972 Amend-

ments as follows:

"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 eligibility.

What concerned Congress was in-

juries on land." Fusco v. Perini

North River Assoc., 601 F.2d 659,

666 (A-22).

In Brown & Root Inc. v. Joyner, 607

F.2d 1087, 1090 (1979), the Fourth Circuit

in applying coverage to construction work-

ers engaged in building a dry dock viewed

the effect of the amendments upon

formerly covered employees as follows:

"We are confident that employment

held to be traditionally maritime

under the former Act has not been

stripped of its maritime character

by the 1972 amendments."

Close scrutiny of this court's sub-

sequent opinion in P.C. Pfeiffer Co. v.

Ford, 444 U.S. 69 reveals a judicial view

of the 1972 amendments as extending

coverage to additional land based em-

ployees. However, there is no indication

therein, either on the part of Congress

or this Court, of an expressed or implied

intent to withdraw coverage from water

based employees, who would have been

covered under pre-amendment law, viz:

"The issue in this case thus be-

comes whether Ford and Bryant are

the kind of land-based employees

that Congress intended to encom-

pass the term ‘maritime employ-

ment.'" Ford (supra), p. 8l.

Further examination of the language

in Ford reveals that this court perceived

Congressional intent, in enacting the

1972 amendments, as not only preserving

coverage previously applicable to pre-

amendment water based employees, but as

extending benefits to such water based

employees who sustained injury while

working in an adjoining shoreward area,

viz:

"Congress wanted to ensure that a

worker who could have been covered

part of the time by the pre-1972

Act would be completely covered by

the 4972 Act." p. 75.

The Court below, apparently mis-

‘construed this court's rejection of its

"geographical" definition of the term

"person engaged in maritime employment"

as a direction to apply the amended act

in a restrictive rather than expansive

manner. In so doing it reversed its

original decision and denied coverage

to a maritime construction worker like

Fusco, who would have been covered

under pre-amendment law.

When this Court in Ford said:

"The term 'maritime employment' refers

to the nature of a worker's activities.",

(p. 78), it imposed no requirement that

such activities "bear a significant

relationship to navigation or to com-

merce on navigable waters" (Fusco

v. Perini, A-4) so as to withdraw

benefits under the Act from a class of

water based workers who would have been

covered under the pre-1972 law. The

clear purpose of the "occupational"

requirement imposed by this court in

Ford was to preclude the application of

the Act from those land based employees,

clearly not engaged in maritime work,

who might incidentally sustain injury

in the newly added adjoining shoreward

areas, viz:

"Our decision serves the intent of

Congress in creating the status

requirement. First, it focuses

upon the nature, not the location,

of employment. Second, it does

not extend coverage to all work-

ers in the situs area. There is

no doubt for example, that neither

the driver of the truck carrying

cotton to Galveston nor the

locomotive engineer transporting

military vehicles from Beaumont

was engaged in maritime employ-

ment even though he was working

on the marine situs. Sucha

person's ‘responsibility is only

to pick up stored cargo for

further trans-shipment.' S. Rep.

No. 92-1125, p. 13 (1972); H. R.

Rep. No. 92-1441, p. 11 (1972);

see Northeast Marine Terminal Co.

v. Caputo, 432 U.S. at 26/, 2/5,

1.3

In imposing its own restrictive

definition of the term "maritime employ-

ment" to deny coverage to a construction

worker whose principal duties are per-

formed on navigable waters and who would

have been covered under pre-amendment

law, the Court below ignored the spirit

and intent of this court's decision in

Ford, viz:

"Our decision today also serves

the broader congressional pur-

pose of expanding coverage."

(p. 83)

CONCLUSION

FOR THESE REASONS, A WRIT OF

CERTIORARI SHOULD ISSUE TO

REVIEW THE JUDGMENT AND OPIN-

ION OF THE SECOND CIRCUIT.

Respectfully submitted,

EPSTEIN & EPSTEIN

Attorneys for Petitioner

Ronald Fusco

BERNARD S. EPSTEIN,

Of Counsel

APPENDIX

A-1

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

—

Nos. 1377-9—September Term, 1979.

(On remand from the Supreme

Court of the United States Decided June 4, 1980)

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

RONALD FUSCO,

Petitioner,

and

BERNARD SULLIVAN,

Petitioner,

and

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR,

Petitioner,

_—V—

PERINI NORTH RIVER ASSOCIATES,

and

HARTFORD ACCIDENT & INDEMNITY COMPANY,

Respondents.

3275

A-2

Appendix A

Before:

MESKILL, Circuit Judge* and

WYZANSKI, Senior District Judge.**

—i

_— — <n cm

WYZANSKI, Senior District Judge:

This case is before us on a remand from the Supreme

Court of the United States.

Perini No. River v. Fusco, Sup. Ct. of U.S. Oct. Term

1979 No. 79-759, January 14, 1979, 48 L.W. 3451,

__.. U.S. ____, vacated our judgment in Fusco, et al. v.

Perini North River Associates, et al., 601 F.2d 659 (2nd

Cir. 1979) and remanded the case to us “for further

consideration in light of P.C. Pfeiffer Co. v. Ford, 444

U.S... . ,” 48 L.W. 4018 (Nov. 27, 1979), Mr.

Justice Brennan, Mr. Justice Marshall and Mr. Justice

Blackmun dissenting.

As shown in our original opinion in Fusco v. Perini

North River Associates, supra, p. 661, this case

involves two separate claims for compensation under

the Longshoremen’s and Harbor Workers’ Compensa-

tion Act [LHWCA], as amended in 1972, 86 Stat. 1251,

83 U.S.C. §901 (1970 ed., Supp. V), et seg. Each

claimant was injured over navigable waters while

engaged in constructing a sewage disposal project

extending over the water.

The claimants contended that when injured they were

“employees” within §2(3) of LHWCA on the broad

ground that each was “engaged in maritime employ-

? Circuit Judge Gurfein, who presided over the panel when the appeal

was first argued and decided, died on December 16, 1979 before this

case had been remanded by the Supreme Court of the United States.

** Of the District of Massachusetts, sitting by designation.

3276

A-3

Appendix A

ment” and on the narrow ground that each was a

“harborworker.”*

In Fusco’s case Administrative Law Judge Lesser,

without expressly ruling on the narrow ground that

Fusco was a “harborworker,” concluded 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.” (p. 661) Accordingly, the ALJ allowed Fusco

compensation.

In Sullivan’s case Administrative Law Judge Feldman

concluded that “Claimant is not a longshoreman, ship

repairman, shipbuilder, or shipbreaker, nor could he be

classified as a harbor worker,” (p. 662), and, therefore,

denied, him compensation under the LHWCA. :

The Benefits Review Board [BRB] reversed the ALJ

in Fusco and affirmed the ALJ in Sullivan on the

ground that “the claimants herein were engaged in the

construction of a sewage disposal plant, their employ-

ment did not have a realistically significant relationship

to maritime activities involving nagivation and com-

merce over navigable waters. It follows that claimants

were not engaged in maritime employment pursuant to

Section 2(3) and thus are not covered under the Act.”

(p. 662). Thus the BRB explicitly rejected the broad

ground and implicitly rejected the narrow ground of the

claims of both Fusco and Sullivan.

1 We decline to consider Sullivan’s claim in his May 19, 1980

Supplemental Brief that he comes within §2(3) because he

occasionally performed longshoring operations. Sullivan did not

make this claim in his petition for review to this court. Moreover,

the evidence does not show that at the time he was injured Sullivan

eo»

3277

wr.

A-4

Appendix A

In our original opinion, without considering whether

either claimant was a harborworker, we concluded that

each claimant was a “person engaged in maritime

employment” because the term “maritime employment”

was to be interpreted geographically as including

anyone whose principal duties are performed on

navigable waters.” We, therefore, held that each

claimant was entitled to compensation. (p. 669).

The conclusion upon which our earlier opinion rested

has been rendered untenable by the holdings in P.C.

Pfeiffer v. Ford, supra, (hereinafter called the Ford

case) that, as used in §2(3) of the LHWCA, “the term

‘maritime employment’ refers to the nature of a

worker’s activities,” 48 -L.W. 4020, and that it isan

occupational rather than a geographic concept.” Jbid.

While the ot with construction

workers and the opinion does not address itself to the

question whether the 1972 amendments had the effect

of depriving any class of workers of henefits which it

would have enjoyed under the pre-1972 law, we read

the_opinion_as precluding any application of the

navigation or to commerce on davizable waters.

That reading is consistent with the construction of

§ 2(3) of the LHWCA given in this case by the BRB, and

given earlier by Weyerhaeuser Co. V. Gilmore, 528 F.2d

957 (9th Cir. 1975), cert. denied 429 U.S. 868 (1976). It

is also consistent with the specific instances of “maritime

employment” set forth in the §2(3) definition

of employee—where the reference is to “any longshore-

man or other person engaged in longshoring operations,

any harborworker including a ship repairman, ship-

builder, and shipbreaker.”

3278

A-5

Appendix A

In the cases at bar the claimants’ activities had

nothing significant to do with navigation or with

commerce on navigable waters. They were engaged

exclusively in constructing a sewage disposal plant. It is

not significant that the plant was being constructed! po

that sewage would not

waters; nor that the claimants performed part or all of

their work while upon floating stages or upon barges.

The only sense in which the claimants’ activities were

maritime was in the sense of their locus. To base a

decision upon the locus of work is to found it upon a

geographic concept—a foundation precluded by the

reasoning in the Ford case.

Parallel reasoning leads us to hold that the claimants

were not within the meaning of §2(3) “harborworkers.”

As there used, the term “harborworker” does not refer

to the place where the employee: works but to the

activity he performs. To come within §2(3) a

harborworker’s activity must relate to ships, as is

shown by the test of §2(3) which refers to a

“harborworker including a ship repairman, shipbuilder,

and shipbreaker.”

In summary, on the basis of the reasoning in P.C.

Pfeiffer Co. v. Ford, we deny the petitions of Fusco and

Sullivan and affirm the BRB’s November 30, 1978 order.

We adhere to our earlier opinion’s conclusion that the

Director’s petition should be dismissed for lack of

statutory standing.

Petitions of Fusco and Sullivan denied.

Petition of the Director dismissed for lack of

statutory standing.

3279

A-6

Appendix B

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

—

Nos. 1877-9—September Term, 1979

(On remand from the Supreme

Court of the United States Decided June 4, 1980)

(Petition for Rehearing

filed June 18, 1980 Decided August 19, 1980)

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

RONALD Fusco,

Petitioner,

and

BERNARD SULLIVAN,

Petitioner,

and

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PRO-

GRAMS, UNITED STATES DEPARTMENT OF LABOkK,

Petitioner,

all

Vv.

PERINI NORTH RIVER ASSOCIATES,

and

HARTFORD ACCIDENT & INDEMNITY COMPANY,

Respondent.

5085

Appendix B

Before:

MESKILL, Circuit Judge* and

WYZANSKI, Senior District Judge**

WYZANSKI, Senior District Judge:

This case is before us on a petition for haan filed

by Sullivan. |

Our Footnote 1 on page 3277 of our opinion dated

June 4, 1980 erroneously stated that Sullivan had not

claimed that he occasionally performed longshoring

operations.

Nonetheless, our conclusion that Sullivan was not

engaged in longshoring operations was correct. The

evidence shows that his duties were exclusively in

connection with the construction of a sewage disposal

plant. When Sullivan unloaded a barge used in carrying

construction materials from the shore to the point of

construction, he was not performing operations which

longshoremen perform. Longshoremen do not unload

barges used in connection with construction of a

structure which reaches from a point on shore to a

point in the river.

Petition denied.

550—8-21-80 ¢ USCA—4498

OUTPUT SYSTEMS, INC., 157 Chambers St., N.Y. 10007, (212) 874-1234

APPENDIX C

PERINI NORTH RIVER ASSOCIATES et al.,

petitioners, v. Ronald FUSCO and

Bernard Sullivan. No. 79-759,

Facts and opinion, 601 F.2d 659,

Jan. 14, 1980. On petition for writ

of certiorari to the United States Court

of Appeals for the Second Circuit. Peti-

tion for writ of certiorari granted.

Judgment vacated and case remanded to

the United States Court of Appeals for

the Second Circuit for further consider-

ation in light of P.C. Pfeiffer Co. V.

Ford, 444 U.S. _ - , 100 S.Ct. 328, 62

L.Ed.2d 225 (1979),

Mr. Justice BRENNAN, Mr. Justice

MARSHALL and Mr. Justice BLACKMUN dis-

sent.

A-9

APPENDIX D

Opinion of the United States Court fo Appeals

for the Second Circuit

UITtTED STATES COURT OF APPEALS

For tHe Seconp Crmcvurr

—4-

Nos. 869, 870, 871—August Term, 1978.

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

Docket Nos. 79-4006, -4015, 4016

—>-

RonaLtp Fusco,

Petitioner,

—and—

Berrarp SvULLIVAN,

Petitioner,

—and—

Dmecror, Orrice or Workers’ ComMPENsATION PROGRAMS,

Unrrep Srares Department or Lazor,

Petitioner,

Pernt Norte Rrver Assocutes,

—and—

Harrrorp Acciwext & Inpemniry Company,

Respondents.

—4>—

Before:

Gorrer and Mzsxm1, Circuit Judges, and

Wvrzansx1, Senior District Judge.°

° Of the District of Massachusetts, sitting by designation.

—

A-10

Appendiz p

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 waiers a work-related injury is, within

the mezning 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.”

Brerxarp S. Epsreix, Epstein & Epstein, New

York, NY, for petitioner Ronald Fusco.

JosePpx Kuiorz, New York, NY, for petitioner

Bernard Sullivan.

Cannxs Anw Cravss, Laver M. Sraeerer, Manx

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

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

Workers’ Compensation Programs.

Wuium F. Fiscuer, Jz. Marto Knrvrzet,

Fischer Brothers, New York, NY, for re-

spondents Perini North Rwer Associates

and Hartford Accident and Indemnity Com-

pany.

—_™

Wrzansxl, 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

A-11

Appendix p

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 Proj-

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 seg. |

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 Contro] 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 materia) added to the origina) statute by 1972 amendments,

_ 86 Stat. 1251, 83 U.8.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 ao 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 smal) vesse] under eighteen

tons net.”

A-12

Appendix p

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..4.%8und 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... .

A-13

Appendiz D

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 “Claimant 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.

A-14

Appendiz D

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 a. that term was used in the original

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

ments.

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

1927 LH WCA, before its amendment, there was coverage

only for “an injury occurring upon the navigable waters of

A-15

Appendiz p

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.

Nactrema 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)

(1970 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.

A-16

Appendiz p

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 navi-

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

8 See 1A Benedict on Admiralty, (7th ed. 1978) $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

A-17

Appendiz p

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 socits 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 Weyerhaeuser Company v. Gilmore, supra, held:

[T)bat 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 ‘traditiona) 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

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

“buman beings, including cats and dogs.”

A-18

Appendiz ph

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 judicia] 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

A-19

Appendiz p

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

where Jensen might have seemed to preclude state com-

pensation.” (Jbid., 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), (8), (4):

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

of and in the course of employment, and such occupationa) disease

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

or unavoidably results from such accidenta] injury... .

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

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

or unload or repair any smal) 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.8.C. $903 defined the coverage provided by the Act:

“(a) Compensation shal) 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... .”

A-20

Appendiz p

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 « boat was “en-

gaged in maritime employment” so as to make fis 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 emy.Joyed 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-

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

U.S. 249, 264 (1977).

A-21

Appendiz p

tries, and of many lower federal court cases, including

cases 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

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

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

414 F.24.657 (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).

[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 Joading, 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 termina) adjoining navigable waters. The

employees who perform this work would be covered under the bill

for injuries sustained by them over the na\icable 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 adjoming

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

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

would not be covered, nor would purely clerical whose jobs

A=22 _

Appendiz D

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 Railroad, 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 of 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 elt-

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.¢., 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.” 8.

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 jongshoreman 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).

A-23

Appendiz p

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, Idid., pp. 259-260,

269.

13 Ibid., p. 269.

14 See footnote 11.

15 33 U.6.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 ony adjoining pier, wharf, dry dock, terminal, building

ares

A=24 *

Appendiz p

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 and 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 ory

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

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 seg.

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 wavigable waters of the

United States (including any dry dock).

A-25

Appendiz Dp

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 genera] purpose of Congress to protect

A-26

Appendix D

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 Nactrema

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. Thibodauz 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

A-27

Appendiz D

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 @

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 19°72 Congress demonstrated 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,

m. 21; see historical note to 88 USCA $903.

A-28

Appendix D

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 superfinons 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 stil] 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.

A-29

Appendiz D

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 faters 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 incidenta) duties on navigable waters.

Cf. Thidodaur v. Atlantic Richfield Co., supra, bolding that the amended

A=-30 |

Appendiz p

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

A-31

Appendiz D

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 its re-

manded for further proceedings not inconsistent with this

opinion.

Petition of the Director dismissed for lack of statutory

standing.

A-32

APPENDIX E

Decision and Order of the United States Court of

Appeals for the Second Circuit Denying Rehearing

and Rehearing En Banc 3

UNITED STATES COURT OF APPEALS

Sscoxp Crecurr

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

in and for the Second Cirenit, 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:

Hox. Murray I. Gurrerm,

Hox. Txomas J. Mesxnu1,

a Circuit Judges,

Hox. Czas. E. Wrzansx1,

District Judge.

Docket No. 79-4006

Roxatp Fusco, et al.,

Petitioners,

Pernt Norre Rrver Associates and

Hartrorp Accipext & Inpemyrry Compary,

Respondents.

A petition for a rebearing having been filed herein by

counsel for the respondents,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is denied.

/s/ A. Daxter, Fusaro

A. Dantet Fvsano

Clerk

A-33

Appendiz £

UNITED STATES COURT OF APPEALS

Szoonp Crecoir

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

Ronaxtp F'vsco, et al.,

Petitioners,

Perri Norra Rrver Associates and

Hartrrorp Acowent & Inpemniry Company,

Respondents.

A petition for rehearing containing a suggestion that the

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

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

was a member of the pane] 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/ Invine R. Kavrman

Invine R. Kavrman,

Chief Judge

A-34

Appendia EF

UNITED STATES COURT OF APPEALS

For tHe Seconp Crcurr

Nos, 869, 870, 871—August Term, 1978.

Decided August 21, 1979

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

RowaLtp Fusco,

Petitioner,

and

Bernard SuLiivan,

Petitioner,

and vo

Dmector, Office of Workers’ Compensation Programs,

United States Department of Labor,

Petitioner,

oY es

Perix1 NortH River Associates,

and

Harrrorp Accient & Inpemniry Compary,

Respondents.

Before:

Gunreix, and Meskm1, Circuit Judges, and

Wrzansk1, Senior District Judge.*

* Of the District of Massachusetts, sitting by designation.

Ae-35

Appendiz E

Ormiox on Responpents’ Perrriox ror REHEARING.

Wrzansk1, 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 dented.

A-36

APPENDIX F

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

Benerirs Review Boarp

Wasuinetor, D.C. 20210

Fruep as Part

oF THE REcorpD

November 30, 1978

(date)

Acnes Kurrz/WHA

(Clerk)

Bewnerits Review Boarp

BRB No. 77-896

SrepHen SepMak,

Claimant-Petitioner,

Perri Norrs River Associates,

and

Hartrorp Acciwext & Ixpemniry Company

Employer /Carrier-Respondents,

Dmector, Orrice oF Workers’ CoMPENSATION PROGRAME

Party-in-Interest,

A-37

Appenda FP

BeRNakp SULLIVAN, |

Claimant-Petitioner,

Perini Norrx Rrver ASSociares

and

Harrrorp Accient & Inpemyrry Company

Employer/Carrier-Respondents,

Dmector, Orrick or Workers’ CoMPENSATION Programs

Petttioner.

BRB No. 78-129

BRB No. 78-407

RonaLp Fusco,

Claimant-Respondent,

Perm Norte River Associates

and

Hartrorp Accipext & Inpemniry Compary,

Employer /Carrier-Petitioners,

A-38

Appendia F

Everetr McNoutry,

Claimant-Respondent,

Perini Norra River Associates,

and

Haztrorp Acciwwext & Inpemniry Company,

Employer /Carrter-Petitioners,

Director, Orrice or Workers’ 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. 7

Bernard §. 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-

A-39

Appendix F

rector, Office of Workers’ Compensation Programs,

United States Department of Labor.

BEFORE:

Saurx, Chairman, Muier and Kararis, Members.*

Smiru, 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 seg., (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 Nev.

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 Mmuer, Member, to follow.

A-40

. Appendia F |

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

caissons 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.

2 Caissons are hollow circular stee] pipes about 34” thick,

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

are also referred to as piles.]

Se®mak 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 225 feet

from the shore... .”

Ae41

| Appendia p

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 feund 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 stee] reinforcement of the

concrete beams and caissons for the substructure. Claim-

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

working vn 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

engaged 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 substrncture. His duties included:

Aw-42

| Appendix Pp

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

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 McNulty, 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 irjured 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 facte case for status, although he

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

applicable. Perini has appealed.

A-43

| Appendia Pp

Although the primary issue in each case 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:

Sec. 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-

A-44

Appendiz F

applicable to “an interpretative question of general import

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

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 Dellaventwra case,

affirmed by the Supreme Court, is clearly entitled to more

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

“prima facte 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.

We now turn to the primary question with which we are

confronted, namely, the boundaries of coverage under the

Act.

A-45

' Appendix F

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

1Section 3(a) states in pertinent part:

Compensation shal] be pavable 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

otber ‘adjoining area customarily used by an employer in

loading, unloading, repairing, or building a veanel.)

? Claimants were found in each case 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.

A-46

| Appendiz F

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

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

BRB No. 74-136 (Dec. 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 rnle. As noted previously, all of the

claimants were involved in the construction of a substruc-

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

disposa] 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 mon 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

A-47

| Appendia F

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

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, 0.40, 281. In Stockman, the First Circuit examined the

Act’s legislative history and concluded that

A-48

| Appendia F

[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 v. 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

injury 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

* 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 cally that) ... an

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

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

A-49

| Appendia F

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/Blumdo.

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 (Dec.

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. 482 U.S. at 270.

A-50

Appendix F

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-51

. Appendia F

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 conclude? that pre-amendment case law serves as a

useful framework in which te 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,

... 80 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. [Emphasis 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 emploved by a statutory employer pursuant to Section _

2(4), 33 U.S.C. §$902(4) (1970 ed.), there was no coverage.

See Calbeck v. Travelers 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.

An52_

| Appendia F

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.

/s/ Samveu J. Smrrze

Samve. J. Smrrx, Chairman

I Concur:

/s/ IsmenE M. Kauazis

Ismene M. Kararis, Member

Dated this 30th day

of November, 1978.

Mnuszr, dissenting:

I respectfully but strongly dissent from my colleagues’

holding that the claimants in these cases 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.

A-53

Appendix F

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, mfra, 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

cases 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 Circuit (which decided Dellaventura,

supra), Overseas African Constructio: 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 Circuit 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

Cirenit repeated that rule in Dellaventura and went on

to say:

3 "" discussion on maritime and admiralty jurisdiction, infra,

at p. 9.

A-54

Appendiz F

[Here 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 Circuit 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 Dawis 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

ts 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 substantia] evi-

dence to overcome the presumpiion 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.

A-55

Appendiz F

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

Buildimg, Service, Inc., 5 BRBS 713, 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 Zoups 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.

ae I

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

*The Rodrigue case 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.

A-56

Appendiz fF

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, e.g.,

Stewart v. Brown d: 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).

4-57

Appendiz FP

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 seg. in substantial part to ‘extend [the

Act’s} coverage to protect additional workers.’ S. 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) It 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.

A-58

Appendiz F

ments, a short history of the development of the maritime

law in the United States will be helpful.

Article ITI, 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 anJ 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

A-59

Appendix F

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

ts 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

A-60

Appendiz pp

would interfere with the uniformity and harmony of the

genera] 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 emplovees were overturned by the Supreme Court. See

Enickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920) and Wash-

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

A-61

Appendia F

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:

[AJs 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.

A-62

Appendia F

the injury sustained by claimant on navigable waters came

within the genera] 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 genera] 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

case.” 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

loca)’ doctrine there was no federa]) 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.

A-63

Appendix F

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

“TWle 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 ts in 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’ Mdabibty Act, 45

U.S.C. §951 et seg.

The Supreme Court traced the sical of the law from

Jensen to the enactment of the Longshore Act and said:

This act and the Jones Act provided means for im

demnification for injuries of i 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].

A-64

Appendia PF

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 traditiona] “mari-

time employment,” if one were to look solely to the

A-65

Appendiz F

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 equa) 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.

A-66

Appendiz F

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 “loca] 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 al] 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’

A=67

Appendix fF

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:

2° See Nacirema Operating Co. v. Johnson, supra.

A-68

Appendiz F

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 . . . Atlamtic 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 denring 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.

21 Although workers’ compensztion 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 Jaws. Thus, Jn 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.]

A-69

Appendiz F

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 (3rd Cir. 1976). Ac-

cordingly, all injuries sustained by employees on navigable

waters are within the Act’s coverage.

Three 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 bifurcated 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:

22 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 seg.

18 Section 3(a), 33 U.S.C. §903(a), now provides coverage for

injuries sustained

... 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 todd in loading, unloading, repairing, or building a

vessel).

14 For the text of Section 2(3), 33 U.S.C. §902(3), see page 9

of majority decision.

A-70

Appendiz F

EXTENSION OF CovEeRAsGE 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:

California naa $70.00

Florida 56.00

TIE iiatisencieicsiahcshinissnicecckiac . 112.50

pT EEO CLONE IS ... 49.00

I ii i iid cella tampinieatillbniieiipiakadiin 85.68

Massachusetts .... soils 1 77.00

PT NO sapidisisediipinesiionehe liens iosiigiearnciciainanahasihets 101.00

pT RE ARES aE nD SOO 80.00

Oregon 62.50

Pennsylvania 60.00

Texas 49.00

1Plus $6 for each dependent.

A-71

Appendiz F

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 Jongshoreman 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

A-72

Appendiz F

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 in

loading, unloading, repairing, or building a vessel, just

because they are injured in an area adjoining navigable

waters used for such activity.» Thus, employees whose

responsibility is only to pick up stored cargo for 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 imdi-

vidual employed by a person none of whose employees

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

covered even tf 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.

1¢T have set forth the reasons behind the amendments to extend

coverage, in full, to demonstrate the concerns of Congress with the

A-73

Appendix F

Caputo/Blundo was the first case in which the Supreme

Court had occasion to view coverage under the amended

Act and the Court applied the ‘situs’ and ‘status’ tests. The

case, 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

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