# Petition — RONALDO TUSCO v. PERINI NORTHRIVER ASSOCIATES (Nos. 80-651, 80-639) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0663%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 ## Text (10248) 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, V. 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. ii 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 15 20 23 39 52 (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 39 42 42 1,17, 46 2,20 32 32 32 (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, 37 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, 42 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 pe 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 10 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 1l 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 12 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) 13 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 14 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). 15 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. 16 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 17 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: 19 "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 20 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 21 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 22 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. 23 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 24 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). 25 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 26 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 27 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 28 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: 29 "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]. 30 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 31 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 32 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 33 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 34 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. 35 "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 36 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 37 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 38 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. 39 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: 40 "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 kkkkh hhh kkk hehehehehe akkkhehekheak 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 41 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 42 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 43 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) 44 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 45 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 46 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 47 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. 48 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 49 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, 50 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 51 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) 52 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 _— — 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 A8 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, a 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. — Al 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 10 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 tt 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, v. 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 AB 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, v. 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, v. 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, v. 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, v. Perm Norte River Associates and Hartrorp Accipext & Inpemniry Compary, Employer /Carrier-Petitioners, A-38 Appendia F Everetr McNoutry, Claimant-Respondent, v. 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 I. 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. I. 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. I 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0663%3A1. Public record. Not legal advice.