Petition — South Street Seaport Museum v. McCarthy

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3 STEVAS

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IN THE

Supreme Court of the United States

OCTOBER TERM 1983

SOUTH STREET SEAPORT MUSEUM,

as Owner of the Bark PEKING,

Petitioner,

—_—Y .—

CRAIG MCCARTHY,

Respondent,

—and—

THE STATE INSURANCE FUND and NORTHBROOK EXCESS AND

SURPLUS INSURANCE COMPANY,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

FRANCIS X. BYRN, Counsel of Record

WILLIAM J. Troy III,

HAIGHT, GARDNER, POOR & HAVENS

Counsel! for Petitioner

One State Street Plaza

New York, New York 10004

(212) 344-6800

QUESTIONS PRESENTED FOR REVIEW

1. Can the Bark PEKING which is on exhibit afloat along-

side Petitioner’s pier, which has not sailed under its own power

in 50 years, which cannot be steered, which is not required to

be inspected by the United States Coast Guard, and which is

not intended to be returned to navigation, be deemed a

“vessel” so as to subject Petitioner to a suit for damages under

§ 905(b) of the Longshoremen’s and Harbor Worker’s Com-

pensation Act in addition to its workmen’s compensation

obligation?

2. By giving the broadest possible meaning to the term

“vessel” for purposes of permitting a liability action against

Petitioner-employer under § 905(b) of the Act, did the Court

of Appeals misinterpret the scope of this Court’s remand of

this case as well as other decisions of this Court which stress

the objective of the 1972 Amendments to the LHWCA of

reducing litigation in favor of compensation payments?

3. Was the decision of the Court of Appeals in error,

disruptive of the uniformity concept of the maritime law, and

in conflict with decisions of this Court, other Courts of

Appeals, as well as its own prior decision, in rejecting the

traditional “in navigation”, “in commerce”, and Jones Act

tests of a “vessel” for purposes of § 905(b) of the LHWCA in

favor of a vague and litigation inspiring “residual capacity”,

“hypothetically plausible possibility” or “non-nautical” test of

a vessel?

ili

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW .......... i

ois onc icld wn 5 6's bows 0 Oa biscbidein ows l

IS oa ea dca d shea WA wie soo 4 o-0.40's 4 00 0 ule ee 2

STATUTORY PROVISIONS INVOLVED ............ 2

EE GO BEMIS CAGES occ cncvaccnccaees 4

REASONS RELIED ON FOR ALLOWANCE OF THE

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APPENDIX

Court of Appeals Decision Reversing District Court

Following Remand From This Court............... la

Court of Appeals Decision Affirming District Court lSa

District Court Memorandum and Order............ 24a

Affidavit of Norman Brouwer in Support of Motion

NE GUMNIUINOINE on i's ccc ccceccccsvesucees 29a

TABLE OF AUTHORITIES

Cases:

B.F. Diamond Constr. Co. v. LeMelle, 6/4 F.2d 296 (4th

Cir. 1982), cert. denied, RES.) aes

830, 74 L.Ed. 2d 1024 (1983) ........ eee eee ee eee

Barger v. Petroleum Helicopters Inc., 692 F.2d 337 (Sth

Cir. 1982), cert. denied, __. U.S. 1316, 103 S.Ct.

2450. 77 LB. 20 1506 (1965) 2. vv cvcscssceseas

Blanchard v. Engine and Gas Compressor Services, Inc.,

SUF Poa ERO Se Ce IGTE vice dc centexivnaees

PAGE

Bloomer vy. Liberiy Mutual Ins. Co., 445 U.S. 74 (1980) 10, 1]

Bongiovanni v. N.V. Stoomvaart-Maats “Oostzee”, 458

F. Sepp. 602 .D.N.Y. 1976) «0.0 occ cccccsasinesoces

Burks v. American River Transportation Co., 679 F.2d

Ee Fels on kes ba Kune chek abescoveaaon es

Chahoc v. Hunt Shipyard, 431 F.2d 576 (Sth Cir. 1970)

Cope vy. Vallette Dry Dock Company, 119 U.S. 625

OES ks pdb chs bascnieonke deus euveeeeee a cna

Cook v. Belden Concrete Products Inc., 472 F.2d 999

(Sth Cir.), cert. denied, 414 U.S. 868 (1973) . .23, 24, 25, 26

Desper v. Starred Rock Ferry Co., 342 U.S. 187 (1951)

Director, Office of Workers’ Compensation Programs,

United States Department of Labor v. Perini North

River Associates, 459 U.S. __., 103 S.Ct. 634, 74

L.Ed, 20 465 €19GS) 6 oncicccvwsccesccsaces 5, 9, 18, 22, 28

Edmonds v. Compagnie Generale Transatlantique, 443

Ey POCA IONE s eek ciwheswdecsecostanceseeubens

Evansville v. Bowling Green Packet Co., 271 U.S. 19

DON a Wavie cided sed cecdsu nesdhwinid clea twheie eens

PAGE

Executive Jet Aviation Inc. v. City of Cleveland, 409

ENO on Pe Gs Soa 55 aouees kk eR KaS iM erae ee 28

Farrell Ocean Services Inc. v. United States, 681 F.2d 91

MOE ci" Ss WLS UN PER deus Sublee whaleet eke awh 27

Fleming v. Port Allen Marine Service Inc., 552 F. Supp.

SE OC PEG Aad vidcdedbabonedscanenaedee 26, 27

Foremost Insurance Company v. Richardson, 457 U.S.

Err 1s veh ae eae t 6 oe cake ae wee em rind 17

Fox v. Taylor Diving & Salvage Co., 694 F.2d 1349 (Sth

eta ys a anchs/l <cvieWebe waxeoS x6 ener eek 25

Garcia v. American Marine Corporation, 432 F.2d 6 (Sth

EE Ga can eek: UG eK SSE power ean eee hes 23

Garcia v. Universal Seafoods, Ltd., 459 F. Supp. 463

RC MEE go haa. uek yeasts oc ae eee ae 27

Hawn v. American Steamship Co., 107 F.2d 999 (2d Cir.

a FA tee aoa oe ao ee 8 Kh ak ae wie ke ae ws eee Oe 22

Hill v. B. F; Diamond, 311 F.2d 789 (4th Cir. 1962).... 22

Hudson Harbor 79 Street Boat Basin Inc. v. Sea Casa,

ee ir Ss SP COLEPLIGL Ds NOVED wei obs ce bersasiees 15, 28

In re Queen Lid., 361 F. Supp. 1009 (E.D. Pa. 1973) .. 27

Jefferson v. 8.8. BONNY TIDE, 281 F. Supp. 884 (E.D.

SAD CGEC paves h Cts eh ecdee de teNes bexewees aie 26

Jones v. One Fifty Foot Gulfstar Motor Sailing Yacht,

ee ae CU SLO: BOD ook cnn sicia wc oncuneevaweis 15

Jones & Laughlin Steel Corporation v. Pfeifer, —

U.S. ___, 103 S.Ct. 2541, 76 L.Ed. 2d 768 (1983) .. y

Keller v. Dravo Corporation, 441 F.2d 1239 (Sth Cir.

1971), cert. denied, 404 U.S. 1017 (1972)........... 23

Luna v. STAR OF INDIA, 356 F. Supp. 59 (S.D. Cal.

ke, DO eee ee er errs Pere Pr Pr ree 27, 28

PAGE

Lundy y. Litton Systems, Inc., 624 F.2d 590 (Sth Cir.

1980), cert. denied, 450 U.S. 913 (1981)............ 23

M/V MARIFAX vy. McCrory, 391 F.2d 909 (Sth Cir.

ee ek Pe a ek peda ns wabenes 6 28

Mayfield v. Wall Shipyard Inc., 510 F. Supp. 605 (E.D.

UCU EGON. ca cd cs Ch ek Oe aie ae wae Kent od 26

McCarthy v. The Bark PEKING, 1981 A.M.C. 2995

(S.D.N.Y. 1981), aff'd, 676 F.2d 42 (2d Cir. 1982),

vacated ___ U.S. __, 103 S.Ct. 809, 74 L.Ed. 2d

1010 (1983), on remand, 716 F.2d 130 (2d Cir. 1983) 1, 4,

5, 6, 7, 8, 12, 13, 18

Miami River Boat Yard, Inc. v. 60’ Houseboat, 390 F.2d

kkk aan an an ois el dc's bare wena 15

Morrison-Knudsen Construction Co. v. Director, Office

of Workers’ Compensation Program, ___. U.S. ___.,

103 S.Ct. 2045, 76 L.Ed. 2d 194 (1983) ............ 12

Nelson v. Greene Line Steamers, Inc., 255 F.2d 31 (6th

Cir.), cert. denied, 358 U.S. 867 (1958)............. 22

New England Fish Co. v. The Barge or Vessel SONYA,

gaa. seme. 463 (DD. Almske $971)... 20.0. cccccccs 27

Norton v. Warner Co., 321 U.S. 565 (1944) ....... 15, 17, 19

Parks v. Dowell Division of Dow, 712 F.2d 154 (Sth Cir.

DI. Ene co owen eu Gheasiseiinedbas.caktess 19

Pleason v. Gulfport Shipbuilding Corp., 221 F.2d 621

NS EN wie £5 Ca pabeadecs kn Ghanéens odue 27

Powers v. Bethlehem Steel Corp., 477 F.2d 643 (ist Cir.),

oe ae ro 24

Reed v. The YAKA, 373 U.S. 410 (1963)........... 9, 11, 23

Richardson vy. Norfolk Shipbuilding and Drydock

Corp., 479 F. Supp. 259 (E.D. Va. 1979), aff'd on

other grounds, 621 F.2d 633 (4th Cir. 1980)......... 15, 26

PAGE

Robert W. Kirk & Associates v. Holcomb, 655 F.2d 589

(Sth Cir. 1981), cert. denied, ___ U.S. ___., _ 103

B.A, B14, 74'L.Be. 20-1083 C1GGS) okicccewcccvenens 6

Rodriguez v. Compass Shipping Co., 451 U.S. 596

EE sp katte ci ue AeA ced eR eeanis ee resbaaks 9, 11

Roper v. United States, 368 U.S. 20 (1961) ........... 21

Salgado v. M.G. Rudolph Corp., 514 F.2d 750 (2d Cir.

i) FRR A A Gi gen een eat) 61 EE Pe Se me 15, 24

Sanger Boats Inc. v. Schwabenland, 683 F.2d 309 (9th

Cy. G2), cut. datied, ..._ US. —..., 16 5.CA.

i a TE 6 6s saceceseices eb bane 6

Scindia Steam Navigation Co. Ltd. v. De Los Santos,

er EOE OL awa pabukvvaecevastameee 10

Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946) ..... 20

South Chicago Coal and Dock Co. v. Bassett, 309 U.S.

acu a sent aca alate ate noe Laman ortoes 19

Swanson v. Marra Brothers Inc., 328 U.S. 1 (1946).... 20

Thames Towboat Co. vy. The Schooner “Francis Mc-

ST, 5 AO Shc Ue CRM. co edcendccacccccuews 16

The Robert W. Parsons, 191 U.S. 17 (1903) ....14, 15, 23, 24

25, 26, 27

The Showboat, 47 F.2d 286 (D. Mass. 1930).......... 28

Warner v. Goltra, 293 U.S. 155 (1934) ............... 19

Watkins v. Pentzien Inc., 660 F.2d 604 (Sth Cir. 1981),

cert. denied, 456 U.S. 944 (1982).............2005- 25

West v. United States, 361 U.S. 118 (1959) ........... 20

Zapata-Haynie Corp. v. Ward, 684 F.2d 1114 (Sth Cir.

1982), cert. denied, ___ U.S. ___., 103 S.Ct. 815, 74

a CEE, «acho cos 3 bdbwue west dee hedee. 6

Vill

PAGE

Statutes and Other Authorities:

SE CN ey er tsyi tans pA tagdene av ev awe 3, 13, 18

RE NES SC u.cibse elas sin da sce tape ehn seems 2

EMIS ViCsGh Paewataninccactpasaies suena e 4

GEC wa ch de cbbakn Sica keen wa ee 2

Federal Employers’ Liability Act (FELA), 45 U.S.C.

et eu Aas ke ees CR aa eka hamelbe hes 9

Pe awes Ms PO eH bOd, DiS CENF A) vc be cjchcecenewase 1]

somes Act, 46 U.S.C. GBB, CF MG. va cccccceces 4, 8, 9, 13, 27

Longshoremen’s and Harbor Workers’ Compensation

Act, 33 U.S.C. §§ 901 ef seq.

SE RSS. oe dovcvenesdcnianaus evs 2, 18, 21

PMs ED oS Ck See c Shaw esA ead pee cpkeuwae 2, 10

Te ED odd db vewsben sks san cuuytuaael 2, 18, 21

Der GPR ad EMS 4 WA bo cio od WER Suis bagh a gee 3, 8, 18

es Se Ry Os CNP I ED ad vac adecteecndeeswe 11

IN THE

Supreme Court of the United States

OCTOBER TERM 1983

a at

SOUTH STREET SEAPORT MUSEUM,

as Owner of the Bark PEKING,

Petitioner,

oa , ome

CRAIG MCCARTHY,

Respondent,

—and—

THE STATE INSURANCE FUND and NORTHBROOK EXCESS AND

SURPLUS INSURANCE COMPANY,

Respondents.

—-

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 716 F.2d

130 (2d Cir. 1983). The decision of this Court remanding the

case to the Court of Appeals is reported at____ ~‘U.S. ___., 103

S.Ct. 809, 74 L.Ed. 2d 1010 (1983). The first opinion of the

Court of Appeals is reported at 676 F.2d 42 (1982). The

opinion of the District Court is not officially reported, but is

reported at 1981 A.M.C. 2995 (S.D.N.Y. 1981). All opinions

are reprinted in the Appendix to this Petition.

JURISDICTION

The opinion and decision of the Court of Appeals for the

Second Circuit sought to be reviewed was entered on August

23, 1983. No Petition for rehearing was filed in the Court of

Appeals. This Petition for Writ of Certiorari is filed within 90

days of August 23, 1983. This Court’s jurisdiction is invoked

pursuant to 28 U.S.C. § 1254(1) and 28 U.S.C. § 2101(c).

STATUTORY PROVISIONS INVOLVED!

Title 33 U.S.C. § 902(3) provides:

The term ‘‘employee’’ means any person engaged in

maritime employment, including any longshoreman or

other person engaged in longshoring operations, and anv

harbor-worker including a ship repairman, shipbuilder,

and ship-breaker, but such term does not include a master

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

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

under eighteen tons net.

Title 33 U.S.C. § 902(21) provides:

The term ‘‘vessel’’ means any vessel upon which or in

connection with which any person entitled to benefits

under this Act suffers injury or death arising out of or in

the course of his employment, and said vessel’s owner,

owner pro hac vice, agent, operator, charterer or bare

boat charterer, master, officer, or crew member.

Title 33 U.S.C. § 903(a) provides:

Coverage

Compensation shall be payable under this Act in re-

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

disability or death results from an injury occuring upon

the navigable waters of the United States (including any

! Emphasis shows 1972 amendments.

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

marine railway, or other adjoining area customarily used

by an employer in loading, unloading, repairing, or build-

ing a vessel). No compensation shall be payable in respect

of the disability or death of—

(1) 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; . . .”’

Title 33 U.S.C. § 905(b) provides:

(b) Jn the event of injury to a person covered under this

Act caused by the negligence of a vessel, then such

person, or anyone otherwise entitled to recover damages

by reason thereof, may bring an action against such vessel

as a third party in accordance with the provisions of

section 33 of this Act, and the employer shall not be liable

to the vessel for such damages directly or indirectly and

any agreements or warranties to the contrary shall be

void. If such person was employed by the vessel to’

provide stevedoring services, no such action shall be

permitted if the injury was caused by the negligence of

persons engaged in providing stevedoring services to the

vessel. If such person was employed by the vessel to

provide ship building or repair services, no such action

shall be permitted if the injury was caused by the negli-

gence of persons engaged in providing ship building or

repair services to the vessel. The liability of the vessel

under this subsection shall not be based upon the war-

ranty of seaworthiness or a breach thereof at the time the

injury occurred. The remedy provided in this subsection

shall be exclusive of all other remedies against the vessel

except remedies available under this Act.

Title 1 U.S.C. § 3 provides:

The word vessel includes every description of watercraft

or other artificial contrivance, used, or capable of being

used, as a means of transportation on water.

Title 46 U.S.C. § 713 provides:

Definitions, schedule, and tables

In the construction of title 53 of the Revised Statutes,

every person having the command of any vessel belonging

to any citizen of the United States shall be deemed to be

the ‘‘master’’ thereof; and every peison (apprentices ex-

cepted) who shall be employed or engaged to serve in any

capacity on board the same shall be deemed and taken to

be a ‘‘seaman’’; and the term ‘‘vessel’’ shall be under-

stood to comprehend every description of vessel navigat-

ing On any sea or channel, lake or river, to which the

provisions of such title may be applicable, and the term

‘‘owner’’ shall be taken and understood to comprehend

all the several persons, if more than one, to whom the

vessel shall belong.

STATEMENT OF THE CASE

Jurisdiction arises in the District Court under 28 U.S.C.

§ 1333 where a maritime tort is alleged to have occurred over

navigable matters.

The opinion of the District Court, described in the first

Court of Appeals opinion as ‘‘well reasoned,’’ 676 F.2d at 45,

App. p. 19a, and in the second Court of Appeals opinion,’ 716

F.2d at 132, App. p. 3a, as ‘‘excellent,’’ described the Bark

PEKING as follows:

The [BJark PEKING, launched in 1911 at Hamburg,

Germany, is a four-masted steel-hulled 377-foot vessel

weighing 2,883 net tons. Between 1974 and 1976 it was

purchased for its present owners, defendant South Street

Seaport Museum; towed across the Atlantic to New York;

berthed for repairs on Staten Island; and ultimately,

towed to South Street Seaport. It there serves as a mu-

seum and is occasionally rented out to private parties as

an entertainment hall. Although it remains capable of

Both by the same panel and author.

being towed, its rudder has been welded in one position

and it has not put to sea under its own motive power since

the 1930's. It is not subject to inspection by the United

States Coast Guard and has not been so inspected. Its

present owners affirm that they do not intend ever to

return it to active navigation, and nothing in the record

before us suggests a contrary intent.

The Court adopted Judge Knapp’s description which it said

was supported by the record and which appears in both

opinions. See App. p. 18a and pp. 3a-4a.

It might be added that on the motion for summary judgment

in the District Court, the uncontested affidavit of the Mu-

seum’s historian stated among other criteria recited by the

District Court and the Court of Appeals on two occasions, that

when towed from England to New York, in July of 1975,

PEKING was ‘‘treated as a floating hulk by both English and

United States customs officials’’. (App. p. 30a).

As appears in the two opinions, respondent, a ‘‘self-styled,

historical iron-worker and shiprigger’’ employed by the Mu-

seum, was injured while painting the main mast and spars of

the PEKING.*

As summarized in the second opinion, 716 F.2d at 132, App.

p. 4a, the Court had on the first occasion affirmed the District

Court’s grant of summary judgment in favor of the Museum

on grounds that respondent was not engaged in maritime

employment at the time of his injury, that he was not therefore

an ‘‘employee’’ within the meaning of 33 U.S.C. § 902(3), and

since ‘‘not an ‘employee’ for purposes of the LHWCA, he

could not recover damages under its provisions.’’ The Court

went on to state that in Director, Office of Workers’ Compen-

sation Programs, United States Department of Labor v. Perini

North River Associates, 459 U.S. ____, 103 S.Ct. 634, 74

3 (App. pp. 3a and 18a). At the time according to the first opinion,

676 F.2d 42, 44, App. p. 17a, it was ‘‘berthed at the Museum’’. In the second

opinion the same Court states without support from the record that PEKING

“‘rides at anchor in the harbor.’’ 716 F.2d at 136, App. p. i3a.

L.Ed. 2d 465 (1983)* this Court had held that workers required

to perform their employment duties upon navigable waters

were engaged in ‘‘maritime employment’’ under the above

section of the LHWCA, irrespective of whether their activities

were traditionally maritime or not. As a result of the Perini

decision, this Court on January 24, 1983 remanded the within

action to the Court of Appeals for reconsideration in light of

that case. On the same day this Court denied petitions for

certiorari in seven other cases extending over a two year

period.*

In its first opinion the Court of Appeals isolated two issues:

1) Whether or not respondent was an employee in maritime

employment at the time of his injury and 2) Whether or not he

was injured as a result of the ‘‘negligence of a vessel’’ within

the meaning of 33 U.S.C. § 905(b). See 676 F.2d at 45, App. p.

19a. While the ‘‘vessel’’ issue was said to be left open, the

Court nevertheless came to grips with it by holding that

Respondent had ‘‘not satisfied the status test’? of maritime

employment because he was not working aboard a ‘‘vessel’’ at

the time of his injury. In evaluating the status of PEKING, the

Court noted, 676 F.2d at 45, App. p. 21a, that its rudder has

been welded in one position, that it had not sailed since the

1930’s and that there was no intention by Petitioner to return

her to active navigation. The Court concluded by stating:

4 Hereinafter ‘‘Perini.’’

5 The seven cases embrace, among others, such diverse employments

as a night watchman who boarded a vessel in port for repairs in the

performance of his duties, Robert W. Kirk & Associates v. Holcomb, 655

F.2d 589 (Sth Cir. 1981), cert. denied, _. U.S. ___, 103 S. Ct. 814, 74

L.Ed 2d 1013 (1983); a construction worker engaged in building a draw

bridge over navigable waters, B.F. Diamond Constr. Co. v. LeMelle, 674

F.2d 296 (4th Cir. 1982), cert. denied, _. U.S. ___, 103 S. Ct. 830, 74

L.Ed 2d 1024 (1983); a sales manager for custom built recreational and

racing boats who only devoted some of his time to maritime duties, Sanger

Boats Inc. v. Schwabenland, 683 F.2d 309 (9th Cir. 1982), cert. denied,

U.S. __, 103 S. Ct., 814 74 L.Ed. 2d 1013 (1983), and an airplane pilot

spotting fish in waters off the Gulf Coast, Zapata-Haynie Corp. v. Ward 684

F.2d 1114 (Sth Cir. 1982), cert. denied, _. U.S, __, 103 S. Ct. 815, 74

L.Ed 1013 (1983).

The LHWCA was intended to apply only to workers

employed in activities related to vessels which at least

have the potential to engage in navigation or in commerce

on navigable waters. The PEKING no longer has that

potential. (emphasis added)

Without anything intervening except this Court’s decision in

Perini, supra, which undeniably mandates that Respondent is

entitled to workmen’s compensation benefits under the

LHWCA rather than under the New York Workmen’s Com-

pensation Act, the Court of Appeals, continuing to adopt the

same findings of Judge Knapp which noted that PEKING has

not sailed under its own power for half a century, now

maintains (716 F.2d at 135, App. p. 12a):

A craft need not be actually engaged in navigation or

commerce in order to come within the definition of

‘vessel’. The question is one of residual capacity.

The Cour turther notes that as long as PEKING “rides at

anchor in the harbor, ready and able to head for the open seas,

even in tow, she remains a vessel.” The difference in the two

opinions between no longer having the “potential” to be in

navigation or commerce and a “residual capacity” to engage in

navigation or commerce could hardly be more striking, and the

change finds no justification in this Court’s remand.

Despite the inconsistency between the two opinions, Peti-

tioner did not move for reargument in the Court of Appeals on

these varying interpretations of what is a “vessel.” Petitioner

deemed it unlikely that the same Court, having changed its

mind once, would return to its original reasoning without

further instructions from this Court. If Petitioner’s position as

set forth herein be correct, and if review is not granted at this

time, it will have to await a trial on the merits, an appeal on

the merits to the Court of Appeals and an additional Petition

for Writ of Certiorari to this Court before that position may be

vindicated.

Meanwhile, as the law of the Second Circuit, the decision

can have an impact not only on Petitioner’s “vessels” but,

within this Circuit, on such similar museum exhibits as, for

example, at Mystic Seaport in Connecticut and the former

aircraft carrier INTREPID, berthed in the Hudson River in

Manhattan, in addition to other maritime museums without

the Circuit. Moreover, not only in the Second Circuit but

elsewhere at shipyards throughout the country, it will en-

courage litigation at any stage of the building of a “vessel” and

even render such structures as floating restaurants liable to

suits for damages by their employees, in addition to claims for

compensation under the LHWCA.

REASONS RELIED ON FOR ALLOWANCE

OF THE WRIT

1. The Court of Appeals misinterpreted the scope of this

Court’s iemand of this case, as well as other decisions of this

Court which stress the objective of the 1972 Amendments to

the LHWCA of reducing litigation in favor of compensation

payments, when it gave the broadest possible meaning to the

term “vessel” for purposes of permitting a liability action

against petitioner-employer under § 905(b) of the Act.

Throughout its second opinion the Court tends to find itself

bound, even with seeming reluctance, to employ the most

expansive definition of a “vessel” that can be mustered, casting

aside even the liberally construed Jones Act, 46 U.S.C. § 541-

713, interpretation, 716 F.2d at 134 n.2, App. p. 8a n.2, in

favor of one that is “broadly inclusive,” “perhaps even the

hypothetically plausible”. Thus it found that there had

emerged a “non-nautical concept of a vessel” that need not be

actually engaged in navigation or commerce but only have a

“residual capacity” to do so. The Court concluded that much

as it would like to formulate a definition which would capture

the seagoing essence of a vessel, it felt constrained, because

PEKING “still rests upon navigable waters and may be re-

turned to the sea, if only in tow”, to give the most “expansive

scope” to that term.

While clearly Respondent is now entitled to workmen’s

compensation benefits under the LHWCA, it is submitted that

aXe OE Ee

the Court of Appeals has gone too far and applied the

philosophy of broadest possible compensation coverage to the

construction of a /iability claim without any instruction or even

indication from this Court that it should do so.

fhe LHWCA is recognized as preeminently a Compensation

Act, not a Liability Act such as the Federal Employers’

Liability Act, 45 U.S.C. §§ 51-60, or the Jones Act, 46 U.S.C.

§ 688 ef seg., and when it is construed liberally to achieve its

purposes, those ends are intended which promote the prompt,

adequate and uncomplicated payment of compensation to the

injured worker. Rodriguez v.Compass Shipping Co., 451 U.S.

596, 612 (1981).

The statistics cited by Justice Stevens in his dissenting

opinion in Perini, supra, 74 L.Ed. 2d at 489-90, which note

that some 270,000 longshoremen and ship repairmen are cov-

ered by the Act, that in addition there are 300,000 employees

of private employers within the District of Columbia and

another 200,000 in defense bases and outer continental shelf

projects, further illustrate the point. Thus, it is not unreason-

able to conclude that while all are entitled to workmen’s

compensation benefits, a majority will have no occasion to sue

a “vessel” or take advantage of the one exception to the

exclusiveness of remedy provision found in § 905(a) to sue

their employers under the Reed v. The YAKA, 373 U.S. 410

(1963) concept, as more recently discussed by this Court in

Jones & Laughlin Steel Corporation v. Pfeifer,

U.S. ___., 103 S.Ct. 2541, 76 L.Ed. 2d 768 (1983).

While giving an expansive construction to compensation

coverage in accordance with the purposes of the Act, this

Court has moved in the opposite direction when litigation

rather than compensation is at issue. Thus there is no justifica-

tion in the Perini case for the Court of Appeals to have

afforded a broad “compensation interpretation” to what is a

“vessel” under § 905(b) of the Act.

Bearing in mind that Perini instructs us that the Act is to be

interpreted in terms of “statutory construction and legislative

intent”, this Court has already derived interpretations from the

overall Congressional intent to curtail litigation, those that

were not actually spelled out in the statute. The Court of

Appeals, finding no “precise guidelines” in § 902(21) and with

the legislative history “not helpful”, applied the broadest

possible definition to a “vessel”. Similarly, this Court in

Scindia Steam Navigation Co. Ltd. v. De Los Santos, 451 U.S.

156, 165 (1981) observed that § 905(b) did not specify what

acts or omissions of the vessel would constitute “negligence”

and said that the legislative history did not furnish “sure

guidance for construing § 905(b).” By way of contrast with the

Court of Appeals, however, this Court was able to formulate a

negligence standard of care, consistent with the Congressional

purpose of reducing litigation, one for example, that did away

with any obligation of the shipowner to inspect or supervise the

stevedoring operation.

While the Court of Appeals nods in the direction of this

Court’s decision in Bloomer v. Liberty Mutual Ins. Co., 445

U.S. 74 (1980), it fails to acknowledge the underlying philoso-

phy of that decision and its reliance on the Congressional

intent of reducing litigation to insure that employers would

have sufficient funds to pay the additional compensation rate.

Such an appreciation should be all the more noteworthy in a

situation where the employer is also said to be the “vessel

owner” and would have an exposure both for compensation

and liability, where in the more typical three-party situation,

the employer would no longer be liable for indemnification,

having only a compensation obligation, while the non-employ-

ing vessel owner would have a liability exposure but none for

compensation. In accordance with the principle of having

employer resources available for compensation payments, this

Court ruled in Bloomer that the employer was entitled to full

reimbursement for its compensation payments from its em-

ployee’s recovery of damages against a vessel owner, unre-

duced by any cost of that litigation. Here again, this Court

gave voice to the underlying purposes of the Act although the

result reached did not appear in so many words in any

statutory language. Indced, the very language of the House

Report® quoted on page 83 of the Bloomer decision, even

militates against the preservation of the Reed v. The YAKA

concept. Quoting from the Senate Report, this Court noted

“the social costs of these lawsuits, the delays, crowding of

court calendars and the need to pay for lawyers’ services have

seldom resulted in a real increase in actual benefits for injured

workers.” This Court therefore concluded in Bloomer, supra,

445 U.S. at 85-86, that “It would be ironic indeed” if the

amendments designed to eliminate the employer’s third-party

liability were so interpreted as to give birth to a new liability,

namely a charge against the compensation payments made for

the employee’s legal expenses in an action against the vessel

owner.

Might not this Court therefore paraphrase its own language

(p. 86) in Bloomer, to find application here:

We are unwilling to attribute to Congress an intention

to allow creation of [an expansive definition of a “ves-

sel”] irreconcilable with its general desire to reduce litiga-

tion and to ensure conservation of the legal expenses of

stevedores and their insurers.

Nor is the Bloomer decision an isolated one. On the same

topic of reducing litigation in favor of payment of compensa-

tion benefits, this Court had said earlier in Edmonds vy.

Compagnie General Transatlantique, 443 U.S. 256, 261 n.9

(1979), that while generally compensation does not compensate

for an employee’s entire loss “the 1972 Amendments to the

Act, however, make a determined effort to narrow the gap

between the harm suffered and the benefits payable.”

In citing Bloomer, this Court observed in Rodriguez v.

Compass Shipping Co., Ltd., supra, 451 U.S. at 616:

6 As the House Report notes, the consequence was that a “stevedore-

employer is indirectly liable for damage to an injured longshoreman who

utilizes the technique of suing the vessel, with the result that much of the

financial resources which could better be utilized to pay improved compensa-

tion benefits were now being spent to defray litigation costs.” H.R.Rep. No.

92-1441, p. 5 (1972); see S.Rep. No. 92-1125, p. 9 (1972).

Moreover those changes remind us that one of the

purposes of the Act is to minimize the need for litigation

as a means of providing compensation for injured

workmen.

Noting that the level of benefits was substantially increased,

this Court again noted (p. 616) the likelihood “that the statu-

tory compensation recoverable without proof of fault would be

adequate.” It went on to comment that the amendments were

intended to increase “the relative importance of statutory

awards as the favored method of compensation.”

Most recently this Court stated in Morrison-Knudsen Con-

struction Co. v. Director, Office of Workers’ Compensation

Program, ___. U.S. ___., 103 S.Ct. 2045, 76 L.Ed. 2d 194,

203 (1983):

. . the Act was not a simple remedial statute intended

for the benefit of the workers. Rather, it was designed to

strike a balance between the concerns of the longshore-

men and the harborworkers on the one hand and their

employers on the other. Employers relinquished their

defenses to tort actions in exchange for limited and

predictable liability. Employees accept the limited recov-

ery because they receive prompt relief without the ex-

pense, uncertainty and delay that tort actions entail.

It is submitted therefore that the Court of Appeals takes an

altogether incorrect approach, one out of step with all of the

decisions of the Court on the subject, when it maintains, 716

F.2d at 136, App. p. 13a, that § 905(b) and the legislative

history “evince no intention to limit the scope of the em-

ployee’s negligence remedy against the vessel by placing a

restrictive construction on the term ‘vessel’”. This is not the

point. Given the stated purposes of the Act, as set forth

repeatedly by this Court, it is rather whether the Court was

correct in utilizing the most expansive interpretation of the

word “vessel”.

It is therefore submitted that the Court of Appeals misinter-

preted the scope of the remand of this case by this Court, that

it construed the Bloomer case and the other cited decisions of

this Court having to do with the conservation of employer

resources and the curtailment of litigation fauitily and that this

Court in the exercise of its powers of supervision over the

Courts of Appeals should grant the Petition and resolve this

issue which now has become the law of the Second Circuit.

2. Whether the test of a “vessel” is measured by the lan-

guage of 1 U.S.C. § 3 or that generally applicable to seamen,

46 U.S.C. § 713, it would seem that the rejection of the “in

navigation” or “in commerce test” and the adoption of a

“non-nautical” or “residual capacity” test by the Court of

Appeals is in conflict with the traditional view laid down by

this Court in innumerable decisions and followed in over-

whelming number by the Courts of Appeals. This is especially

true in cases under the LHWCA where the definition of a

“vessel” is construed similarly, if not required to be entirely in

line with what is a “vessel” for Jones Act purposes, as will be

demonstrated infra (2(b)).

Curiously the Court of Appeals, not without reason, cites no

decisions of this Court in support of its “residual capacity”,

“non-nautical” or “hypothetically plausible” thesis of what is a

“vessel”.

a. Historically and even apart from the Jones Act and the

LHWCA PEKING would not be considered a “vessel”

under the decisions of this Court.

The Court of Appeals observed in the first opinion, 676 F.2d

at 44, App. p. 18a, that PEKING has not put to sea under its

own power since the 1930’s and while it would prefer to “slip

her moorings, ease into the harbor and head for the open seas

with the seagulls in her wake”, that “Sadly, she is fated not to

do so.” Indeed, it “no longer has that potential” to engage in

navigation or in commerce on navigable waters. 676 F.2d at 46,

App. p. 2la.

In the second opinion, it was again noted that PEKING “has

not put to sea under her own power for half a century.” 716

F.2d at 132, App. p. 4a. Moreover, the Court agreed, 716 F.2d

at 135, App. p. lla, that “No rational person would suggest

that the PEKING is in a position gracefully to ‘slip her

moorings, ease into the harbor and head for the open

Mes ee

While personifying PEKING in picturesque language in both

opinions, the Court fats to take into consideration the dif-

ference between “her once-proud bearing” as a vessel, one that

sailed the high seas under her own power, earning her way by

carrying cargo and passengers and her present state, where if

moved at all PEKING is reduced to being pulled in tow. It is

perhaps at this point and while considering venerability that we

should look to an eighty year old decision of this Court which,

judging by the frequency with which it is cited has, despite its

longevity, survived as an authority longer than PEKING has

fulfilled its original role as a vessel.

In The Robert W. Parsons, 191 U.S. 17 (1903) the issue was

whether there was state or admiralty jurisdiction to enforce a

lien for repairs on a canal boat, which at the time was engaged

in navigating the Erie Canal in New York. The boat was

propelled by horse power in the primitive sense of the term. In

holding admiralty jurisdiction controlled, this Court said (p.

30):

In fact, neither size, form, equipment, nor means of

propulsion are determinative factors upon the question of

jurisdiction, which regards only the purpose for which the

craft was constructed and the business in which it is

engaged. (emphasis added)

Ruled out as vessels were such items (p. 30) as “the floating

drydock, the floating wharf, the ferry bridge hinged or chained

to a wharf, the sailors Bethel moored to a wharf, . . . anda

gas float moored as a beacon... . .” Rejecting the argument

that maritime jurisdiction did not obtain because it was drawn

by horses along the Erie Canal, this Court said (p. 31):

So long as the vessel is engaged in commerce and

navigation it is difficult to see how the jurisdiction of

admiralty is affected by its means of propulsion, which

may vary in the course of the same voyage or with new

discoveries made in the art of navigation.

More important for us today than the means of propulsion

are the two criteria listed by the Court and their application to

PEKING. Certainly the Court of Appeals would agree that

“the purpose for which PEKING was constructed” is not being

fulfilled if it requires being towed to be moved, and the

“business in which it is engaged” as a museum exhibit is

certainly not navigation or commerce. It may also be seen that

this Court employed the present tense and not any “residual

capacity” nor “hypothetically plausible” capacity for transpor-

tation. In short, the test should be what is PEKING now, not

what PEKING was fifty years ago.

In this connection, the Court may also take notice that it has

never been the contention of Petitioner that the variety of

floating craft cited by the Court of Appeals are not vessels or

that self-propulsion is a requisite to being a vessel. Thus,

limited use vessels such as floating cranes,’ derricks and or-

dinary barges," houseboats’ and pleasure boats,'° all meet the

The Robert W. Parsons criteria and are irrelevant to an

evaluation of PEKING. Thus, if a houseboat without propul-

sion is towed from one point to another as the owners seek a

change in place of floating habitation, it is fulfilling its original

purpose and it is precisely how it was intended to be moved.

The Robert W. Parsons drew upon the earlier decision of

Cope v. Vallette Dry Dock Company, 119 U.S. 625 (1887),

7 Bongiovanni v. N.V. Stoomvaart-Maats “Oostzee”, 458 F. Supp. 602

(S.D.N.Y. 1978); Salgado v. M.J. Rudolph Corp., 514 F.2d 750 (2d Cir.

1975).

8 Richardson vy. Norfolk Shipbuilding and Drydock Corp., 479 F.

Supp. 259 (E.D. Va. 1979), aff'd on other grounds, 621 F.2d 633 (4th Cir.

1980) [derrick barge]; and Burks vy. American River Transportation Co., 679

F.2d 69 (Sth Cir. 1982); Norton v. Warner Co., 321 U.S. 565 (1944) [barges].

9 Hudson Harbor 79 Street Boat Basin Inc. v. Sea Casa, 469 F. Supp.

987 (S.D.N.Y. 1979); Miami River Boat Yard Inc. v. 60’ Houseboat, 390 F.2d

596 (Sth Cir. 1968).

10 Jones v. One Fifty Foot Gulfstar Motor Sailing Yacht, 625 F.2d 44

(Sth Cir. 1980).

which held that there was no maritime jurisdiction over a

salvage claim for drydock since “not used for the purpose of

navigation, . . .” stating as well:

The fact that it floats on the water does not make ii @

ship or vessel, and no structure that is not a ship or vessel

is a subject of salvage.

This Court cited as an example:

A sailor's floating bethel or meeting house, moored to

a wharf, and kept in place by a paling of surrounding

piles, is in the same category.

Similarly, in 1920 this Court in Thames Towboat Co. v. The

Schooner “Francis McDonald”, 254 U.S. 245, 246, ruled that a

claim for supplies furnished and repairs made to a schooner

which had been launched but not yet completed was not within

admiralty and maritime jurisdiction despite the fact that the

hull was capable of being towed and was indeed towed from

Groton to New London, Connecticut. This Court denied

maritime jurisdiction commenting that while the schooner had

been launched and was water-borne it was “not sufficiently

advanced to discharge the functions for which in-

tended, . . . .” Commenting that contracts for the construc-

tion of a vessel are not deemed to be within admiralty

jurisdiction, this Court said this was so because “It is said that

in no proper sense can they be regarded as directly and

immediately connected with navigation or commerce by wa-

ter.” (emphasis supplied).

In 1926 this Court in Evansville v. Bowling Green Packet

Co., 271 U.S. 19, held that a wharf boat which sank in the

Ohio River was not permitted limitation of liability. Reviewing

the predecessor statute of 1 U.S.C. § 3, it held that a wharf

boat employed to transfer freight between steamboats and land

and from one steamboat to another, and although capable of

being towed, was still not a vessel for purposes of seeking

limitation of liability. This Court noted (p. 21) that it was “not

subject to government inspection as are vessels operated on

navigable waters.” (p. 22) “It was not practically capable of

being used as means of transportation.” “It did not encounter

perils of navigation to which craft used for transportation are

exposed.”

In Norton v. Warner Co., 321 U.S. 565, 571 (1944), cited by

the Court of Appeals for the adoption of the 1 U.S.C. § 3

definition of a “vessel”, this Court insisted on a contemporary

capability for navigation and transportation, not a “residual

capacity”, stating (p. 57):

A barge is a vessel within the meaning of the Act even

when it has no motive power of it own, since it is a means

of transportation on water. (emphasis supplied).

More recently this Court held in Foremost Insurance Com-

pany v. Richardson, 457 U.S. 668 (1982), that two pleasure

boats in collision were within admiralty jurisdiction although

there was no commercial aspect to their navigation, citing 1

U.S.C. § 3. This Court reasoned (p. 674):

The federal interest in protecting maritime commerce

cannot be adequately served if federal jurisdiction is

restricted to those individuals actually engaged in com-

mercial maritime activity. The interest can be fully vindi-

cated only if a// operators of vessels on navigable waters

are subject to uniform rules of conduct.

. * * *

(p. 675):

The potential disruptive impact of a collision between

boats on navigable waters, when coupled with the tradi-

tional concern that admiralty law holds for navigation,

compels the conclusion that this collision between two

pleasure boats on navigable waters has a significant rela-

tionship with maritime commerce. (emphasis added)

b. The rejection by the Court of Appeals of the Jones Act

test of a vessel for purposes of § 905(b) of the LHWCA is

in conflict with the decisions of this Court and the Courts

of Appeals.

In citing a potpourri of authorities under a variety of

Statutes, it is clear that the Court of Appeals did not hew to the

admonition contained in footnote 29 of this Court's opinion in

Perini, supra, 74 L.Ed. 2d at 482 n.29, where among other

things this Court cautioned:

Although the term ‘maritime’ occurs both in 28 U.S.C.

§ 1333(1) and in § 2(3) of the Act these are two different

statutes ‘each with different legislative histories and

jurisprudential interpretations over the course of dec-

ades’. Boudreaux v. American Workover Inc., 680 F.2d

1035, 1050 (CAS 1982).

The Court of Appeals, in searching for a definition of the

term “vessel” as found in § 905(b) of the LHWCA stated, 716

F.2d at 135, App. p. 8a, that Congress did not provide a

definition “different from the generally acknowledged one”

found in | U.S.C. § 3. Therefore, it presumed that Congress

intended “to adopt this commonly-used term.” In so doing it

expressly discarded cases decided under the Jones Act, 46

U.S.C. §§ 541-713, which “have looked to a different test in

determining what is a vessel for Jones Act purposes.” 716 F.2d

at 132 n.2, App. p. 8a n.2. As will be developed, this is

essentially the “in navigation”'' criterion.

In rejecting the Jones Act analysis, the Court below has

overlooked that part of the original definition of employee

appearing in §§ 2(3) and 3(a)(1) of the Act which excludes “a

master Or member of a crew of any vessel,” (emphasis added)

as well as the historic interplay between the Jones Act and the

LHWCA found in so many of the decisions of this Court. As

to this, the Court of Appeals for the Fifth Circuit, as recently

1] The statutory definition of a “vessel” most closely associated with

the Jones Act is found in 46 U.S.C. § 713 (cited supra), which specifies a

vessel to be “in navigation”.

as August 15, 1983, in Parks v. Dowell Division of Dow, 712

F.2d 154, 158, has held that a Jones Act “seaman” and a “crew

member” “excluded from the Longshoremen’s Act are one and

the same.” Since the Jones Act definition of a “vessel” is

pertinent in determining who are “excluded” from LHWCA

coverage, it would hardly make for an orderly interpretation of

the same statute to have a different definition of a “vessel” to

determine who are “included.”

It is not altogether surprising that the Jones Act and the

LHWCA definition of a vessel should be read harmoniously.

As expressed by this Court speaking through Mr. Justice

Cardozo in Warner v. Goltra, 293 U.S. 154, 156 (1934), it was

thought at one time and despite their lack of resemblance to

seamen, that longshoremen were indeed entitled to sue under

the Jones Act. This was prior to the enactment of the

LHWCA. This Court provided guidance for the future when it

then said (p. 159):

The scheme of legislation becomes symmetrical and

consistent when the Merchant Marine Act of 1920 is read

in the light of another act in pari materia, the Longshore-

men’s and Harbor Workers’ Compensation Act (U.S.C.

title 33 §§ 901 ef seg.) adopted in [March 4] 1927. This

Act expressly excludes from its ‘coverage’ a ‘master or

member of a crew of any vessel’. $903.

The exclusion was inserted because seamen preferred to

remain outside of the compensation provisions. South Chicago

Coal and Dock Co. vy. Bassett, 309 U.S. 251, 257 (1940). Thus,

a distinction was made between those who perform a certain

service aboard the vessel as distinguished from those who were

“naturally and primarily onboard to aid in her navigation.”

Id., at 260.

So closely linked are the LHWCA and Jones Act that the

Court of Appeals in employing the | U.S.C. § 3 definition of a

vessel, set forth in Norton v. Warner, supra, 321 U.S. at 571

n.4, nevertheless overlooked the holding in the case which

ruled that a bargeman working on a vessel in navigation and

which served as a “means of transportation on water” was

actually covered under the Jones Act and not entitled to claim

under the LHWCA, as the Court below suggested. The same

intertwined relationship between the Jones Act and the

LHWCA is evident in this Court’s decision in Swanson v.

Marra Brothers Inc., 328 U.S. 1, 7 (1946).

It is also difficult to follow how the Court of Appeals could

reject the Jones Act criteria of a “vessel” when for so many

years (1946-1972) both seamen and longshoremen mutually

enjoyed the same warranty of seaworthiness as to a vessel

under Seas Shipping Co. v. Sieracki, 328 U.S. 85, 99 (1946).

The criteria for a “vessel” has continued to remain the same

for both seamen and longshoremen. In Desper v. Starred Rock

Ferry Co., 342 U.S. 187, 191 (1951), again contrary to the

“residual capacity” rationale espoused by the Court below, this

Court ruled, as to seamen:

The distinct nature of the work is emphasized by the

fact that there was no vessel engaged in navigation at the

time of the decedent's death. All had been ‘laid up for the

winter’.

There being no vessel, decedent became only (p. 191) a “proba-

ble navigator” and this Court held that the Jones Act “does

not cover probable or expectant seamen but seamen in being.”

On the longshoremen or harbor-worker side of the coin, this

Court ruled in West v. United States, 361 U.S. 118 (1959), that

no warranty of seaworthiness existed in favor of a repairman

employed by an independent contractor and engaged in reac-

tivating a previously laid-up vessel. Although in the mothball

fleet at Norfolk, Virginia, it was towed to Philadelphia with a

skeleton officer crew aboard, and where work commenced.

The repair specifications indicated (p. 121) that the vessel was

not seaworthy for a voyage, and that major repairs “would be

necessary before one could be undertaken.” The warranty of

seaworthiness was deemed inapplicable because as this Court

said (p. 122), “The MARY AUSTIN, as anyone could see was

not in maritime service.”

Two years later this Court decided Roper v. United States,

368 U.S. 20, 21, (1961), an action by a longshoreman. The

District Court had dismissed the suit because “since the ship in

fact was not in navigation there was no warranty of seaworthi-

ness.” As with PEKING, her rudder was secured, along with

other equipment and the ship “lost her Coast Guard safety

certificate as well as her license to operate, both of which were

requisites to a vessel in navigation.” Again as would be with

PEKING, this Court noted (p. 21), “Indeed the trial court

found that ‘admittedly’ reactivation of the ship would have

required a major overhaul.” The vessel was thereafter used for

grain storage, but “not reactivated for navigation nor use for

transportation purposes,. . . .” After being towed to loading

facilities and filled with grain, it remained for two years until

towed back to the grain elevator for unloading. No activation

repairs were made, nor was any effort made to obtain a license

to operate as a vessel in navigation, and none was issued. The

fact that the SS HARRY LANE was twice towed had no

impact on this Court’s decision. It was simply not a vessel in

navigation. The Court said (p. 24), “This movement was by

tug without assistance from the ship’s motive or directional

equipment which, indeed, was not in the least useable.” The

Court then concluded that since the “SS HARRY LANE was

not a vessel in navigation, it follows that there was no warranty

of the ship’s seaworthiness.” Significantly, this Court then

went on to comment (p. 24):

This limitation is analogous to that applied in libels under

the Jones Act, where it has long been held that recovery is

precluded if the ship involved is not a vessel in navigation.

When Congress amended the LHWCA in 1972, it did not, as

the Court of Appeals agrees, furnish a new definition of a

“vessel” and certainly not one different than in § 2(3) or

§ 3(a)(1) which were partially amended to broaden compensa-

tion coverage for “maritime employment” but did not alter the

exclusion for crew members on “any vessel”.

The seamen exclusion was indeed described by this Court in

Perini, supra, 74 L.Ed. 2d at 474, as the first of five conditions

a worker had to overcome to obtain coverage under the

original LHWCA."

Just as this Court has ruled in Perini that the 1972 Amend-

ments by their silence did not alter the maritime status of

workers injured over navigable waters, so too, the historical

definition and interpretation of the word “vessel” appearing in

§§ 2(3) and 3/a)(1) should also remain unchanged by a Con-

gressional stillness on the subject, especially where other por-

tions of the same sections were amended. If the word “vessel”

has already been defined and interpreted in §§ 2(3) and 3(a)(1),

should it be done any differently in §§ 2(21) and 5(b) which

were added in 1972 without qualification?

Various Courts of Appeals have also considered the interac-

tion between the Jones Act, and the LHWCA. In Hawn y.

American Steamship Co., 107 F.2d 999 (2d Cir. 1939), a vessel

was withdrawn from navigation for storage of soybeans and

was without her classification. Plaintiff was therefore deemed

not “a member of a crew of the ship at the time of his injury.”

He was limited to compensation under the LHWCA. In Nelson

v. Greene Line Steamers Inc., 255 F.2d 31 (6th Cir.), cert.

denied, 358 U.S. 867 (1958), a Mississippi River excursion

vessel was tied up for the winter, therefore not in navigation,

and one working aboard on repairs was held not a seaman. In

Hill v. B.F- Diamond, 311 F.2d 789 (4th Cir. 1962), the Court

Stated as a general proposition (p. 792):

Even ships, beyond question vessels in navigation when in

service, are not vessels in navigation when undergoing

major construction work to fit them for navigation, or

after decommissioning when they are being prepared for

storage.

12 “First, the worker had to satisfy the ‘negative’ definition of ‘em-

ployee’ contained in § 2(3) of the 1927 Act in that he could not be a ‘master

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

load or unlead or repair any small vessel under eighteen tons net.’ ”

Similarly, for purposes of Reed v. The YAKA, supra, the

Court of Appeals for the Fifth Circuit in Chahoc v. Hunt

Shipyard, 431 F.2d 576 (Sth Cir. 1970), cited by the Court

below, while acknowledging that a floating drydock might

under some circumstances be a vessel when actually under tow,

ruled as a matter of law that it was not “while moored to the

bank and operated as drydock.” Nor would a substantially

incomplete “vessel” qualify, as found in Garcia v, American

Marine Corporation, 432 F.2d 6 (Sth Cir. 1971)."° See also

Keller v. Dravo Corporation, 441 F.2d 1239 (Sth Cir. 1971),

cert. denied, 404 U.S. 1017 (1972), which held that a floating

drydock is not a vessel at least “when it is moored and in use as

a drydock” and that the barge inside the diydock was not a

vessel because undergoing substantial repairs and out of navi-

gation.

In Cook vy. Belden Concrete Products Inc. , 472 F.2d 999 (Sth

Cir.), cert. denied, 414 U.S. 868 (1973), recovery was sought

alternatively under the Jones Act and under Reed v. The

YAKA, supra. Involved was a floating construction platform

(flat-deck barge) moored in navigable waters. Citing, among

other authorities, The Robert W. Parsons, supra, the Court

noted the “determinative factors upon the question of jurisdic-

tion [are] the purpose for which the craft was constructed and

the business in which it is engaged.” Pertinent to our case, is

the language of the Fifth Circuit in footnote 5, p. 1001, which

observes that while the construction platform was capable of

being towed and while under tow in navigable waters might, as

with a dry dock, “for a limited time become a subject of

maritime jurisdiction . . ., “neither the capability for such

movement nor the fact that the dock has been moved through

navigable waters in the past establishes that the dock, while

secured to the bank and in service is a vessel.” (emphasis

supplied). The Court again noted on p. 1002 that if actually

engaged in navigation “at the time of appellant’s injury”, it

13 Cf., Lundy v. Litton Systems Inc. , 624 F.2d 590 (Sth Cir. 1980), cert.

denied, 450 U.S. 913 (1981), involving a vessel, moored to a dock, in its final

stages of outfitting preparatory to sea trials, 97% complete with a crew

aboard, one of whom was charged with negligence.

might be classified as a vessel but not while “engaged in its

primary function as a stationary construction platform.”

The Cook case in the Fifth Circuit was then closely followed

by Powers v. Bethlehem Steel Corp. in the First Circuit, 477

F.2d 643, cert. denied, 414 U.S. 856 (1973). There the Court

held that for purposes of the Jones Act or the LHWCA, a

work raft which had been previously moved or towed around

Boston harbor was not a vessel (p. 647):

The purpose and business of the present craft was not

the transportation of passengers, cargo or equipment

from place to place across navigable waters. It was tied to

the pier or its pilings virtually all of the time.

The Court went on to say that it “may well be” (p. 648) that

when “in actual navigation—such as when, unattached to land,

it is under tow for an appreciable distance over navigable

water—it will temporarily acquire a vessel’s status.”

By way of contrast, Salgado v. M.G. Rudolph Corp., supra,

514 F.2d 750 (2d Cir. 1975) also concerned with the mutually

exclusive question of whether the injured party was a seaman

or a longshoreman, while rejecting seaman’s status to a worker

without a more or less permanent connection with the vessel,

held that a floating crane performing its function (p. 756) of

transporting goods over water was indeed a vessel. The injured

employee (p. 757) “was doing work which was the primary

purpose of the crane, i.e. loading ships.”

As late as 1978 the Court of Appeals for the Fifth Circuit, in

Blanchard v. Engine and Gas Compressor Services, Inc., 575

F.2d 1140, again cited (p. 1142) the rule in The Robert W.

Parsons, supra, and its own earlier decision in Cook v. Belden

Concrete Products, supra, for the propositions that buildings

erected on permanently sunken barges are not Jones Act

vessels, since (p. 1143) “Gulf moreover did not intend to move

these structures on a regular basis . . .” “they did not carry

navigation lights or equipment, lifeboats or any lifesaving gear

nor were they registered with the Coast Guard as vessels.” The

Court went on to say (p. 1143) “In fact, Gulf emphasizes that

they could be moved, if at all, only under the most favorable

weather conditions.” It concluded as it had in its prior opinion

that “[mJere flotation on water does not constitute a structure,

WE 6k

In Watkins v. Pentzien Inc., 660 F.2d 604 (Sth Cir. 1981),

cert. denied, 456 U.S. 944 (1982), two barges secured together,

used as a construction platform and capable of being (p. 607)

“towed from place to place by a tug”, were held not vessels for

Jones Act purposes with the Court also saying:

Our decision that the two-barge structure in which

Watkins was injured was not a vessel in navigation also

disposes of his claim under the general maritime law.

Citing its decision in Cook v. Belden Concrete Products,

supra, the same Court updated the rule of The Robert W.

Parsons, supra, saying “The critical inquiry is ‘the purpose for

which the craft was constructed and the business in which it is

engaged’.”

In Barger v. Petroleum Helicopters Inc., 692 F.2d 337

(1982), cert. denied, ___ U.S. ___., 103 S.Ct. 2430, 77 L.Ed.

2d 1316 (1983), the Court of Appeals for the Fifth Circuit

concluded that the estate of a deceased helicopter pilot could

not claim a Jones Act remedy since a helicopter was not a

vessel. It also said in footnote 5, p. 341, again imposing the

same test for a vessel under the Jones Act as under § 905(b) of

the LHWCA, “However § 905(b) is simply irrelevant here

unless a helicopter is a ‘vessel’. We have concluded that it is

not.” Even the dissent qualified the helicopter as a “vessel”

only because (p. 343):

It is maritime because of the nature of the work it

regularly performed—the transportation of persons and

property.

In Fox v. Taylor Diving & Salvage Co., 694 F.2d 1349

(1983), the Fifth Circuit repeated (p. 1354) the oft cited criteria

that the so-called “vessel must be ‘designed for navigation and

commerce,’ ” and, “At the very least such a vessel must be in

use for navigation or direct commerce at the time of the

accident.” (emphasis supplied).

A District Court decision applying the definition of a “ves-

sel” correlatively under the Jones Act and the LHWCA is

Jefferson v. SS BONNY TIDE, 281 F. Supp. 884, 885 (E.D.

La. 1968). It was held that a “vessel” launched and riding on

navigable waters was still “unprepared for and incapable of

navigation af the time of plaintiff's injury.” (emphasis sup-

plied). The Court said that since the BONNY TIDE was not a

vessel, there was no cause of action under the Jones Act or for

unseaworthiness, and moreover:

Consequently, Reed v. The YAKA, 373 U.S. 410...,

does not apply to permit the plaintiff longshoreman to

circumvent the exclusiveness of his compensation remedy

under the Longshoremen’s and Harbor Workers’ Com-

pensation Act, 33 U.S.C. § 901 ef seq.

A “uniform test”, according to Richardson v. Norfolk

Shipbuilding and Drydock Corp., 479 F. Supp. 259 (E.D. Va.

1979), aff'd on other grounds, 621 F.2d 633 (4th Cir. 1980), has

been employed “applicable to both the Jones Act and the

LHWCA, to determine an individual’s status as a harbor

worker or a crewman/seaman.” Should not a uniform test also

be applied as to what is a “vessel” under each? Mayfield v.

Wall Shipyard Inc., 519 F. Supp. 605, 607 (E.D. La. 1981)

answers the question in the affirmative.

Fleming v. Port Allen Marine Service Inc., 552 F. Supp. 27

(M.D. La. 1982), citing such authority as The Robert W.

Parsons, supra, and Cook v. Belden Concrete Products Inc.,

supra, ruled that a work platform was not a vessel under

§ 905(b) of the LHWCA. The Court reached its decision

against an indistinguishable backdrop of both Jones Act and

§ 905(b) cases. It repeated that “mere flotation on water” was

not enough (p. 30) nor was the fact that it was moved around

the yard by a tug boat. /d., at 28. The Court concluded since

not “primarily designed to serve in navigation,” it was not a

vessel.

It is perhaps curious that the analysis of the Court of

Appeals places little, if any, emphasis on the decisions of this

Court in general or those of other Courts under § 905(b) and it

expressly puts aside the companion Jones Act evaluation of a

“vessel”. With the exception of Luna v. STAR OF INDIA, 356

F. Supp. 59 (S.D. Cal. 1973), it seems to rely on maritime lien

cases for its “hypothetically plausible”, “residual capacity”

and “non-nautical” concepts. At the same time, it entirely

overlooks the teaching of the enduring The Robert W. Parsons

decision of this Court, supra, itself a lien case, and followed in

so many other authorities construing a vessel alternatively

under the Jones Act or the LHWCA even down to the decision

in Fleming v. Port Allen Marine Service Inc., supra, of less

than a year ago.

If the lien cases afford a broader definition of vessel, as

suggested in New England Fish Co. v. The Barge or Vessel

SONYA, 332 F. Supp. 463, 468 n.4 (D. Alaska 1971),'* it may

well be under the rationale that liens are most often incurred

by vessels under 46 U.S.C. § 971 while they are not in active

service or navigation. See also In Re Queen Ltd., 361 F. Supp.

1009 (E.D. Pa. 1973). Cf., Pleason v. Gulfport Shipbuilding

Corp., 221 F.2d 621 (Sth Cir. 1955), (a stationary shrimp

processing, freezing and storage plant—held a vessel for lien

purposes under 46 U.S.C. § 671) with Garcia v. Universal

Seafoods Ltd., 459 F. Supp. 463 (W.D. Wash. 1978) (floating

seafood processor held not a vessel under Jones Act).

Farrell Ocean Services Inc. v. United States, 681 F.2d 91 (lst

Cir. 1982), involved the susceptibility to maritime liens under

46 U.S.C. § 671 of “four vessels” loaded and transported on a

barge. While not functioning as such at the moment, the Court

said (p. 93), “These four vessels certainly were fully capable of

operating as vessels.” This of course is much more than the

“residual capacity” or “hypothetically plausible” test of the

Court below.

14 However, in a lien claim for crew wages, the same Court employed a

test that it said had been frequently examined by Courts considering the

Jones Act and its relationship to the LHWCA (p. 467). It cited 46 U.S.C.

§ 713, and in deciding that no “vessel” existed for purposes of establishing a

lien for crew wages noted “The owners had no intention of ever using her

again as a means of transportation over the water. . . .” (p. 468)

M/V MARIFAX vy. McCrory, 391 F.2d 909 (Sth Cir. 1968),

was also a lien case, but here the vessel had actually been

restored to service after 15 years layup and had made a voyage

before being taken into a shipyard for repairs. The Court said

it was “not navigably impotent at the time of the appellees

repair work and certainly she was capable of being used in

navigation.” Other lien cases cited by the Court below are The

Showboat, 47 F.2d 286 (D. Mass. 1930), and Hudson Harbor

79th Street Boat Basin Inc. v. Sea Casa. 469 F. Supp. 987

(S.D.N.Y. 1979).

Luna v. STAR OF INDIA, supra, 356 F. Supp. at 65,

acknowledges that it was not applying the Jones Act test’® of a

“vessel” but “a broader definition” to determine whether or

not admiralty jurisdiction existed as to a visitor aboard a

museum “vessel”. The Court was obviously concerned with the

impact of this Court’s then recent decision in Executive Jet

Aviation Inc. v. City of Cleveland, 409 U.S. 249 (1972) and the

whole status/situs concept of maritime jurisdiction. Clearly it

was not deciding an action under the LHWCA.

We may be reminded once again of the cautionary language,

cited earlier, of this Court in Perini, supra, 74 L.Ed. 2d at 482

n.29, with respect to employing the same word, in several

different statutes, “Although the term ‘maritime’ occurs in 25

U.S.C. § 1333(1) and in § 2(3) of the Act these are two

different statutes ‘each with different legislative histories and

jurisprudential interpretations over the course of decades.’ ”

15 With more justification than the Court below which followed the

Luna decision without commenting on the difference.

CONCLUSION

For the reasons set forth herein, Petitioner believes that a

resolution of the definition of a “vessel” under the Longshore-

men’s and Harbor Workers’ Compensation Act is required and

therefore prays that a Writ of Certiorari issue to review the

opinion and judgment of the United States Court of Appeals

for the Second Circuit entered on August 23, 1983.

Respectfully submitted,

FRANCIS X. BYRN, Counsel of Record

WILLIAM J. Troy III,

HAIGHT, GARDNER, POOR & HAVENS

Counsel for Petitioner

One State Street Plaza

New York, New York 10004

(212) 344-6800

Zz.

Court of Appeals Decision Reversing District Court Following

Remand From This Court

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 1411—August Term, 1982

Docket No. 81-7587

(Submitted April 21, 1983 Decided August 23, 1983)

CRAIG MCCARTHY,

Plaintiff-Appellant,

—_—Vi—

THE BARK PEKING, her sails, equipment, appurtenances,

etc., and SOUTH STREET SEAPORT MUSEUM,

Third Party Plaintiff-Appellee,

THE STATE INSURANCE FUND and

NORTHBROOK EXcCEss AND SURPLUS INSURANCE,

Third Party Defendants-Appellees.

Before:

TIMBERS, KEARSE end CARDAMONE,

Circuit Judges.

On remand from the Supreme Court for further con-

sideration of our prior decision, 676 F.2d 42 (2 Cir. 1982),

in light of that Court’s subsequent decision.

Affirmed in part; vacated and remanded in part.

—

RICHARD L. DAHLEN, Edwin Fk. Lambert, Jr.,

and Dahlen & Gatewood, Boston, Mass.,

together with Zock, Petrie, Reid & Cur-

tin, New York, N.Y., submitted a brief

for plaintiff-appellant McCarthy.

FRANCIS X. ByRN, William J. Troy III, and

Haight, Gardner, Poor & Havens, New

York, N.Y., submitted a brief for third

party plaintiff-appellee South Street

Seaport Museum.

ALAN G. CHOATE, Joseph F. Moore, Jr.,

Wayne W. Suojanen, and _ Pepper,

Hamilton & Scheetz, Philadelphia, Pa.,

together with Mark O. Kasanin, Richard

C. Brautigam, and McCutchen, Doyle,

Brown & Enersen, San Francisco, Cal.,

submitted a brief amici curiae for Na-

tional Maritime Historical Society and

National Maritime Museum Association.

TIMBERS, Circuit Judge:

Following our prior decision in this case on April 12,

1982, 676 F.2d 42 (2 Cir. 1982), appellant petitioned for

certiorari with respect to a part of our decision. On

January 24, 1983, the Supreme Court entered the follow-

ing order (51 U.S.L.W. 3552):

“82-53 McCarthy v. Bark Peking. 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 Director, Office of Workers’

Compensation Programs, United States Department

of Labor v. Perini North River Associates, 459 U.S.

— ion”

On March 3, 1983, upon receipt of a certified copy of the

judgment of the Supreme Court, an order was entered by

our Court vacating our judgment of April 12, 1982. On

March 31, 1983, we entered a further order inviting

counsel to file supplemental briefs addressed to the issue

with respect to which the case had been remanded to us

for further consideration. Such briefs have been filed.

The case is now ripe for decision by us on the remand

from the Supreme Court.

For the reasons stated below, we affirm our prior

decision in part, and vacate and remand in part.

We assume familiarity with the facts of this case as

summarized in our prior opinion, 676 F.2d at 44-45, as

well as in the excellent opinion of the district court of

June 3, 1981.

-In short, McCarthy was injured on December 12, 1979

while painting the upper mainmast and spars of the Bark

Peking, a museum vessel on exhibit as one of the artifacts

at the South Street Seaport Museum. Her rudder is

welded in one position and she has not put to sea under

her own power for half a century. McCarthy commenced

an action in the Southern District of New York on June 9,

1980, seeking, in Count I, damages against the vessel

itself and against its owner, the Museum, under the

Longshoremen’s and Harbor Workers’ Compensation

Act, 33 U.S.C. §§ 901-950 (1976 & Supp. V_ 1981)

(LHWCA or Act). In Count II, he sought damages

against the Museum because of an allegedly wrongful

discharge pursuant to § Il(c)(1) of the Occupational

Safety and Health Act of 1970, 29 U.S.C. § 660(c)(1)

(1976) (OSHA).

In affirming the district court’s order granting sum-

mary judgment in favor of defendants, we held, with

respect to Count I, that McCarthy was not engaged in

“maritime employment” at the time of his injury; that he

therefore was not an “employee” within the meaning of

§ 2(3) of the Act, 33 U.S.C. § 902(3) (1976); and that,

since he was not an “employee” for purposes of the

LHWCA, he could not recover damages under its provi-

sions. 676 F.2d at 45-46.

With respect to Count II, we affirmed the district

court’s order granting summary judgment in favor of the

Museum on the ground that McCarthy had failed to file a

timely complaint with the Secretary of Labor, as required

by § 11(c)(2) of OSHA, and therefore had not exhausted

his administrative remedies. 676 F.2d at 46-47. Judge

Kearse, concurring in the judgment that McCarthy could

not recover under Count II, placed her concurrence on

the ground that there is no implied right of action under

§ 1l(c), as the Sixth Circuit had held in Taylor v.

Brighton Corp., 616 F.2d 156 (6 Cir. 1980).

Il.

As for Count II outlined above, McCarthy did not

include our decision with respect thereto in his petition

for certiorari. Our holding on that count, set forth in Part

IV of our opinion of April 12, 1982, stands undisturbed.

We therefore confirm that part of our prior opinion and

the judgment entered thereon.

III.

We turn next to Count I, as to which the Supreme

Court remanded the case to us for reconsideration.

(A)

In Director, Office of Workers’ Compensation Pro-

grams, United States Dept. of Labor v. Perini North

River Associates, 459 U.S. __ (1983), 51 U.S.L.W. 4074

(U.S. Jan. 11, 1983) (No. 81-897), the Court held that a

construction worker injured on a cargo barge—where he

was working to build a foundation for a sewage treatment

plant—was engaged in “maritime employment”. With

respect to the status requirement of § 902(3), the Court

held that “[w]e consider those employees to be ‘engaged

in maritime employment’ not simply because they are

injured in a historically maritime locale, but because they

are required to perform their employment duties upon

navigable waters.” 51 U.S.L.W. at 4081.

Having reconsidered our prior decision in the light of

Director, as the Court has ordered us to do, we now hold

that McCarthy was a covered employee for purposes of

the LHWCA, and that the Bark Peking is a “vessel” to

the extent that McCarthy properly may allege the “negli-

gence of a vessel” and thus bring his action for damages

under 33 U.S.C. § 905(b) (1976).

We conclude that McCarthy now must be considered to

have been engaged in “maritime employment” at the time

he was injured on the Bark Peking on December 12, 1979.

He was “injured on the actual navigable waters in the

course of his employment on those waters. . . .” Direc-

tor, 51 U.S.L.W. at 4081. Under this latest Supreme Court

decision, no more is required to qualify McCarthy as a

Statutory “employee”.

(B)

That, however, does not end our inquiry under Count I.

Since we hold that McCarthy was a statutory employee

and thus was covered under the Act, we must now

consider a second issue which we did not have the

occasion to reach in our prior decision, namely, whether

McCarthy was injured as the result of “the negligence of

a vessel” within the meaning of § 905(b), so that his

Statutory remedies are not limited by § 905(a), the exclu-

sivity provision of the Act.'

! Under the Act, an injured employee is entitled to prescribed com-

pensation from his employer. §§ 907-909. He may not bring an action

against his employer for damages beyond the compensation remedy.

§ 90S(a). An injured employee, however, may bring an action for

damages against the vessel and her owner if his injury was caused by

“the negligence of a vessel’’. § 905(b). If the owner also is the

employer, the action for damages will still lie notwithstanding the

purported exclusivity of the compensation remedy. Reed v. S.S. Yaka,

373 U.S. 410 (1963).

This current state of the law is the result of the 1972 amendments to

the LHWCA, Pub. L. 92-576, codified at 33 U.S.C. §§ 901-950 (1976),

they having replaced the employee's action for unseaworthiness-—

which in effect was a nautical rule of strict liability, Seas Shipping Co.

v. Sieracki, 328 U.S. 85, 95 (1946)—with an action against the vessel

for negligence. At the same time, Congress eliminated the owner's

indemnity action against the longshore employer. § 905(b). The net

result of the amendments was to limit the remedies of a statutory

The Museum and intervenors National Maritime His-

torical Society and National Maritime Museum Associa-

tion now ground their argument entirely on the claim that

the Bark Peking, museum piece that she is, does not

qualify as a “vessel” for purposes of § 905(b), and there-

fore McCarthy could not have been injured as the result

of “the negligence of a vessel”. We hold that this is an

unsupported narrowing of the term “vessel” as it is used

in the Act.

The 1972 amendments to the Act, note | supra, which

provided that a statutory employee may bring an action

for damages against a vessel for injuries caused by “the

negligence of a vessel”, § 905(b), added to the statute in

§ 902(21) only a circular definition of the term “vessel”:

“The term vessel means any vessel upon which or in

connection with which any person entitled to benefits

under this chapter suffers injury or death arising out

of or in the course of his employment, and said

vessel’s owner, Owner pro hac vice, agent, operator,

charter or bare boat charterer, master, officer, or

crew member.”

Obviously this definition does not provide precise guid-

ance as to what is included within the term “vessel”. The

legisiative history similarly is not helpful. Those courts

which have considered the term subsequent to the 1972

amendments, however, have held it to be broadly inclu-

sive.

For example, in Burks v. American River Transporta-

tion Co., 679 F.2d 69 (5 Cir. 1982), the court held that

non-propelled river barges, in use as transports, were

employee to two: compensation from the employer regardless of fault,

and an action for damages against the vessel where the employee’s

injury was caused by ‘‘the negligence of a vessel’’.

“vessels” within the meaning of § 905(b). Such varying

seafaring entities as a 97% completed destroyer, Lundy v.

Litton Systems, Inc., 624 F.2d 590 (5 Cir. 1980), cert.

denied, 450 U.S. 913 (1981), a yard derrick barge, Rich-

ardson v. Norfolk Shipbuilding & Drydock Corp., 479 F.

Supp. 259 (E.D. Va. 1979), aff’d on other grounds, 621

F.2d 633 (4 Cir. 1980), and a floating crane, Bongiovanni

v. N. Ve Stoomvaart-Matts “Oostzee”, 458 F. Supp. 602

(S.D.N.Y. 1978), also have been held to be “vessels”

within the meaning of § 905(b).

We do not believe that our canvass should be confined

to those cases decided subsequent to the 1972 amend-

ments. Courts which have construed the term “vessel”,

under the LHWCA as well as in analogous contexts,

almost uniformly have adopted the definition set forth in

the General Provisions of the United States Code, 1

U.S.C. § 3 (1976) (“section 3”), referred to below. E.g.,

Norton vy. Warner Co., 321 U.S. 565, 571 n.4 (1943)

(LHWCA); Burks v. American River Transportation Co.,

supra, 679 F.2d at 75 (LHWCA); Bongiovanni v. N. VM

Stoomvaart-Matts “Oostzee”, supra, 458 F. Supp. at 609

(LHWCA). Since Congress, in its use of the term “vessel”

in §§ 902(21) and 905(b), did not provide a definition

different from the generally acknowledged one found in

section 3, we may presume, as other courts have, that it

intended to adopt this commonly-used term. Nachman

Corp. v. Pension Benefit Guaranty Corp., 592 F.2d 947,

952-53 (7 Cir.), aff’d, 442 U.S. 940 (1979).?

2 In contrast, cases decided under the Jones Act, 46 U.S.C. §§ 541-

713 (1976), have looked to a different test in determining what is a

vessel for Jones Act purposes. E.g., Blanchard v. Engine & Gas

Compressor Services, 575 F.2d 1140, 1142 (S Cir. 1978); Hicks v.

Ocean Drilling and Exploration Co., 512 F.2d 817, 823 (5 Cir. 1975),

cert. denied, 423 U.S. 1050 (1976).

Section 3 defines “vessel” to include “every description

of watercraft or other artificial contrivance used, or

capable of being used, as a means of transportation on

water.” 1 U.S.C. § 3 (1976) (emphasis added). Pursuant

to the axiom that “vessels” must be at least capable of use

as a means of transportation on water, courts uncertain of

a particular craft’s place in nautical taxonomy have

drawn distinctions based cr the presence or absence of

this residual capacity. Compare, e.g., Keller v. Dravo, 441

F.2d 1239, 1243-44 (5 Cir.), cert. denied, 404 U.S. 1017

(1971) (floating drydock attached to dock and used as

construction platform held not be be a vessel under

LHWCA as a matter of law); Chahoc v. Hunt Shipyard,

431 F.2d 576, 577 (5S Cir. 1970) (same), with Burks v.

American River Transportation Co., supra, 679 F.2d at

71, 75 (non-propelled river barge held to be a vessel).

At the same time, however, virtually any capacity for

use aS seagoing iransportation—perhaps even the hy-

pothetically plausible possibility—has sufficed to lend the

dignity of “vessel” status to a host of seemingly unlikely

craft. E.g., Hudson Harbor 79th Street Boat Basin, Inc.

v. Sea Casa, 469 F. Supp. 987, 989 (S.D.N.Y. 1979)

(houseboat capable of being towed from one location to

another viewed as analogous to a “dumb barge” and held

therefore to be a section 3 vessel for purposes of ad-

miralty and maritime jurisdiction); Miami River Boat

Yard, Inc. v. 60' Houseboat, 390 F.2d 596, 597 (5 Cir.

1968) (powerless houseboat held to be a “vessel”); M/V

Marifax v. McCrory, 391 F.2d 909, 910 (S Cir. 1968)

(decommissioned Navy ship, 15 years in mothballs, held

to be a “vessel” while in preparation for return to service

as civilian ship); Luna v. Star of India, 356 F. Supp. 59,

63-66 (S.D. Cal. 1973) (historic ship in use as part of a

maritime museum held to be a “vessel” because she was

10a

“capable of engaging in maritime transportation, if only

as a towed craft”); The Showboat, 47 F.2d 286, 287 (D.

Mass. 1930) (retired schooner converted into a restaurant

and dance hall remained a “vessel” under section 3).

In a variety of contexts, adding for illustrative purposes

some of the cases we have already discussed, courts have

found the following to be ‘‘vessels’’: Salgado v. M. J.

Rudolph Corp., 514 F.2d 750, 755-56 (2 Cir. 1975)

(floating crane); Bongiovanni v. N.V. Stoomvaart-Matts

“‘Oostzee’’, supra, 458 F. Supp. at 610 (same); Jn Re

Queen Ltd., 361 F. Supp. 1009, 1010-11 (E.D. Pa. 1973)

(propellerless boat awaiting transfer to a permanent

berth); Lundy v. Litton Systems, Inc., supra, 624 F.2d at

592 (uncompleted destroyer);’ Jones v. One Fifty Foot

Gulfstar, 625 F.2d 44, 47 n.2 (5 Cir. 1980) (ocean-tested

yacht still in construction on dry land). Even more sur-

prising, a Navy vessel converted into a stationary shrimp-

processing plant was held to be a section 3 vessel in

Pleason v. Gulfport Shipbuilding Corporation, 221 F.2d

621, 623 (5 Cir. 1955).* As Judge John Brown of the Fifth

3 But see Garcia vy. American Marine Corp., 432 F.2d 6, 7 (S$ Cir.

1970) (substantially uncompleted ship held not to be a vessel); Jeffer-

son v. SS Bonny Tide, 281 F. Supp. 884 (E.D. La. 1968) (same).

4 The court in Pleason, 221 F.2d at 673, gave a graphic description of

the condition of the vessel: .

‘“‘A prior owner . . . had decided to scrap her, and had sold a

substantial amount of her tackle and apparel. At the time she was

brought in for the above-mentioned repairs, she was in substantially

the following condition: her propellers and propeller shafts had

been removed; she had no crew; none of her machinery was in

operation; she had no light, heat, or power in operation; her main

engines had been completely removed; all of her steering apparatus,

with the exception of the rudder, had been removed and sold; her

superstructure and masts were intact; her navigation lights were in

pleve, though not operable; her compartmentation, including cargo

holds, was intact... .

After the services . . . were performed, she was towed across the

Gulf of Mexico from Port Arthur to Port Isabel without crew or

lla

Circuit stated the section 3 ‘‘vessel’’ anachronism: ‘‘[n]o

doubt the three men in a tub would also fit within our

definition [of ‘‘vessel’’ under § 3], and one could proba-

bly make a convincing case for Jonah inside the whale.’”’

Burks vy. American River Transportation Co., supra, 679

F.2d at 75.°

In light of the non-nautical concept of a vessel which

has emerged in the case law, we are constrained to hold

that the Peking remains a vessel despite her age and

current use. No rational person would suggest that the

Peking is in a position gracefully to ‘‘slip her moorings,

ease into the harbor and head for the open seas. . . .”’

McCarthy v. The Bark Peking, supra, 676 F.2d at 44. On

the other hand, the district court found that the Peking

was capable of being towed, welded rudder notwithstand-

~~ ° Less than ten years ago, following her purchase by

motive power Or Operative steering device of any kind. ‘At Port

Isabel she was moored to a dock by steel cables and ropes and

engaged in receiving shrimp from trawlers for processing, freezing,

storing and resale in commerce, in the same manner as a similar

plant would operate on land. Shrimp were delivered on board in

baskets just as they are unloaded on a dock or wharf. Telephone

and electric lines from land were connected . . . although she had

her own power system. The location of the vessel was changed once

when she was towed down the ship channel and again secured, in

the same manner, in a stationary position.’ ”

5 Indeed, a recent generation of law clerks, in their nefarious account

of a voyage on a 22 foot sloop off the rock-bound coast of Maine,

undoubtedly would be surprised to learn that they had been on a

section 3 vessel and that they were covered by the LHWCA. Wald and

Ford, ‘‘The Death Voyage Of The Ensign’’ (1980) (unpublished).

6 The district court described the Peking as follows—a description

which we adopted in our prior opinion (676 F.2d at 44):

‘**The [Bjark PEKING, launched in 1911 at Hamburg, Germany, is

a four-masted steel-hulled 377-foot vessel weighing 2,883 net tons.

Between 1974 and 1976 it was purchased for its present owners,

defendant South Street Seaport Museum; towed across the Atlantic

to New York; berthed for repairs on Staten Island; and, ultimately,

towed to South Street Seaport. It there serves as a museum and is

l2a

her present owner, the Peking underwent a stormy voy-

age—albeit in tow—across the Atlantic to her berth at the

South Street Seaport Museum. The Museum concededly

is engaged in the restoration of the ship to at least a

semblance of her once-proud bearing—if only, as it

states, for illustrative purposes.

This brings the Peking into the category of many other

vessels with similarly limited capacities. A craft need not

be actually engaged in navigation or commerce in order to

come within the definition of ‘‘vessel’’. The question is

one of residual capacity. Farrell Ocean Services, Inc. v.

United States, 631 F.2d 91, 93 (1 Cir. 1982); M/V

Marifax v. McCrory, supra, 391 F.2d at 910. In Marifax

the vessel had been in mothballs for 15 years. In Luna v.

Star of India, supra, 356 F. Supp. at 63-66, the vessel was

an historic three masted bark on display, like the Peking,

as a museum ship. The court, interpreting section 3, held

that as a museum ship she remained a vessel despite her

long absence from the sea and her artifact status. See also

The Showboat, supra, 47 F.2d at 286-87.

The houseboat in Hudson Harbor 79th Street Boat

Basin v. Sea Casa, supra, 469 F. Supp. at 989, was no

more likely to slip her moorings and head for the open

seas than is the Peking. But the court in that case found,

for the purpose of establishing its admiralty and maritime

jurisdiction, that ‘‘it is clear that a floating houseboat

capable of being towed from one location to another is a

vessel within the admiralty and maritime jurisdiction of

this Court.’’

occasionally rented out to private parties as an entertainment hall.

Although it remains capable of being towed, its rudder has been

welded in one position and it has not put out to sea since the 1930's.

It is not subject to inspection by the United States Coas! Guard and

has not been so inspected. Its present owners affirm that they do

not intend ever to return it to active navigation, and nothing in the

record before us suggests a contrary intent.’’

l3a

The Museum and the intervenors, asserting that the

Peking cannot be considered a vessel, rest their argument

on the legislative history of § 905(b) which was added by

the 1972 amendments. They claim that this section was

intended to limit actions for damages. To the extent that

this argument relies on the provision of § 905(b) which

eliminates both the employee’s action for*unseaworthi-

ness and the shipowner’s action for indemnity from a

negligent employer, the argument is correct. Section

905(b) was intended to ‘‘reduce litigation, immunize

stevedores and their insurers from liability in third party

actions, and assure conservation of stevedore resources

for compensation awards to longshoremen.’’ Bloomer v.

Liberty Mutual Insurance Co., 445 U.S. 74, 84 (1981).

But this section of the statute and the accompanying

legislative history evince no intention to limit the scope of

the employee’s negligence remedy against the vessel by

placing a restrictive construction on the term ‘‘vessel’’.

See generally H.R. Rep. No. 92-1441, 92nd Cong., 2d

Sess., reprinted in 1972 U.S. Code Cong. & Ad. News

4698.

The Peking may be fated to ride at anchor for the rest

of her days. Her rudder is welded in place. Her owner has

no intention of slipping her moorings and taking her

again to the open seas, with the seagulls in her wake. But

she retains at least this much of the dignity of her former

venerable station: as long as she rides at anchor in the

harbor, ready and able to head for the open seas, even in

tow, she remains a vessel. Much as we should like to

formulate a definition of ‘‘vessel’’ that captures the

essence of the seagoing definiendum, no Platonic form

suggests itself; hence we are left with the halting efforts of

the common law. The Peking, despite her moorings and

her role as a museum piece, still rests upon navigable

l4a

waters and may be returned to the sea, if only in tow.

Paraphrasing the late Mr. Justice Frankfurter in a dif-

ferent context, we ‘‘cannot keep the word of promise to

[her] ear . . . and break it to [her] hepe.’”’

In light of the expansive scope that has been given to

the section 3 definition of ‘‘vessel’’, we hold that the

Peking is a vessel for purposes of the LHWCA, and that

McCarthy may bring his action under § 905(b) to recover ,

damages for the ‘‘negligence of a vessel’’.

Affirmed in part, and vacated and remanded in part

for further proceedings in the district court consistent

with this opinion. No costs in this Court on the instant

remand.

7 Griffin vy, Illinois, 351 U.S. 12, 24 (1956) (Frankfurter, J., concur-

ring).

lSa

Court of Appeals Decision

Affirming District Court

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

Argued Dec. 14, 1981 Decided April 12, 1982

No. 445, Docket 81-7587

aoe

CRAIG MCCARTHY,

Plaintiff-Appellant,

—_V—

THE BARK PEKING, her sails, equipment, appurtenances, etc.,

and SOUTH STREET SEAPORT MUSEUM,

Third Party Plaintiff-Appellee,

THE STATE INSURANCE FUND and

NORTHBROOK EXCESS AND SURPLUS INSURANCE,

Third Party Defendants-Appellees.

On appeal from a summary judgment entered on motion of

defendant South Street Seaport Museum, pursuant to

Fed.R.Civ.P. 54(b), in the Southern District of New York,

Whitman Knapp, District Judge, dismissing an action in which

plaintiff, an employee of the Museum, sought damages and

other relief as the result of his fall from a bosun’s chair

suspended by a gantline on the Bark Peking while the latter

was berthed at the Museum, the Court of Appeals, Timbers,

Circuit Judge, held: (1) that plaintiff was not engaged in

“maritime employment” within meaning of the Longshore-

l6a

men’s and Harbor Workers’ Compensation Act since vessel no

longer had potential to engage in navigation or commerce on

navigable waters, and (2) that since plaintiff had not exhausted

administrative remedies available to him, there was no need to

reach question whether he had private right of action under the

Occupational Safety and Health Act.

Affirmed.

KEARSE, Circuit Judge, filed a concurring opinion.

aoe

RICHARD L. DAHLEN, Boston, Mass. (Edwin F. Lambert,

Jr., New York City, Dahlen & Gatewood, Boston, Mass., and

Zock, Petrie, Reid « Curtin, New York City, on the brie?), for

plaintiff-appellant.

FRANCIS X. BYRN, New York City (William J. Troy III, and

Haight, Gardner, Poor & Havens, New York City, on the

brief), for third party plaintiff-appellee South Street Seaport

Museum.

RAYMOND C. GREEN and SUSAN R. PETITO, New York City,

filed a brief for third party defendant The State Insurance

Fund.

ALAN G. CHOATE, Joseph F. Moore, Jr., Wayne W. Suo-

janen, and Pepper, Hamilton & Scheetz, Philadelphia, Pa.,

and Mark O. Kasanin, Richard C. Brautigam, and McCut-

chen, Doyle, Brown & Enersen, San Francisco, Cal., filed a

brief amici curiae for National Maritime Historical Society and

National Maritime Museum Assn.

Before:

TIMBERS, KEARSE and CARDAMONE,

Circuit Judges.

17a

TIMBERS, Circuit Judge:

On this appeal from a summary judgment entered on motion

of defendant South Street Seaport Museum, pursuant to

Fed.R.Civ.P. 54(b),' in the Southern District of New York,

Whitman Knapp, District Judge, dismissing an action in which

plaintiff, an employee of the Museum, sought damages and

other relief as the result of his fall from a bosun’s chair

suspended by a gantline on the Bark Peking while the latter

was berthed at the Museum, the questions presented are (1)

whether the district court correctly ruled that plaintiff was not

engaged in “maritime employment” so as to bring him within

the definition of an employee in § 2(3) of the Longshoremen’s

and Harbor Workers’ Compensation Act (“LHWCA”"), 33

U.S.C. § 902(3) (1976);° and (2) whether the district court

correctly ruled that plaintiff had forfeited his right to claim a

wrongful discharge pursuant to § 11(c)(1) of the Occupational

Safety and Health Act of 1970 (“OSHA”), 29 U.S.C.

§ 660(c)(1)(1976).

l The district court issued a Rule $4(b) certificate because no adjudica-

tion was made with respect to defendants The State Insurance Fund

and Northbrook Excess and Surplus Insurance Company, both of

whom disclaimed coverage under their respective policies.

2-33. U.S.C. § 902(3) (1976) provides:

“(3) The term ‘employee’ means any person engaged in maritime

employment, including any longshoreman or other person engaged

in longshoring operations, and any harborworker including a ship

repairman, shipbuilder, and shipbreaker, but such term does not

include a master or member of a crew of any vessel, or any person

engaged by the master io load or unload or repair any small vessel

under eighteen tons net.”

3 29 U.S.C. § 660(c)(1) (1976) provides:

“(c)(1) No person shall discharge or in any manner discriminate

against any employee because such employee has filed any com-

plaint or instituted or caused to be instituted any proceeding under

or related to this chapter or has testified or is about to testify in any

such proceeding or because of the exercise by such employee on

behalf of himself or others of any right afforded by this chapter.”

18a

We agree with Judge Knapp’s rulings with respect to both

questions. We affirm.

In his opinion dated June 3, 1981, Judge Knapp succinctly

described the Bark Peking as follows:

“The [BJark PEKING, launched in 1911 at Hamburg,

Germany, is a four-masted steel-hulled 377-foot vessel

weighing 2,883 net tons. Between 1974 and 1976 it was

purchased for its present owners, defendant South Street

Seaport Museum; towed across the Atlantic to New York;

berthed for repairs on Staten Island; and, ultimately,

towed to South Street Seaport. It there serves as a mu-

seum and is occasionally rented out to private parties as

an entertainment hall. Although it remains capable of

being towed, its rudder has been welded in one position

and it has not put to sea under its own motive power since

the 1930’s. It is not subject to inspection by the United

States Coast Guard and has not been so inspected. Its

present owners affirm that they do not intend ever to

return it to active navigation, and nothing in the record

before us suggests a contrary intent.”

We adopt Judge Knapp’s description of the vessel which is

supported by the record. We note only that, like all venerable

vessels which never die, the Peking would like nothing more

than to slip her moorings, ease into the harbor and head for

the open seas, with the seagulls in her wake.

Sadly, she is fated not to do so.

On December 12, 1979, plaintiff Craig McCarthy, a self-

styled “historical ironworker and shiprigger,” while employed

by the Museum, was painting the upper mainmast and spars of

the Peking. He was suspended in a bosun’s chair which he

controlled by a gantline—a length of one-inch manilla line.

19a

The gantline “parted”, causing plaintiff to fall some 60 feet

where he grabbed a stay and thence climbed down another 60

feet to the deck below. He returned to work on March 13,

1980.4

On March-14,. 1980, the day following his return to work,

plaintiff, after conferring with members of the staff of the

Museum, met with John B. Hightower, the president of the

Museum. Plaintiff told Hightower that the Peking was se-

riously unsafe in several respects. Hightower, believing that

plaintiff’s conduct amounted to insubordination, fired him.

On June 9, 1980, plaintiff commenced the instant action in

the Southern District of New York. In Count I of his com-

plaint, plaintiff alleged admiralty and maritime jurisdiction

and asserted a claim under the LHWCA for negligence against

the Museum anc the Peking, claiming that their negligence

caused his fall on December 12, 1979. In Count II of his

complaint, plaintiff alleged that the Museum discharged him in

violation of his rights under the OSHA and the regulations

promulgated thereunder.

Upon the Museum’s motion for summary judgment, Judge

Knapp, in a well reasoned opinion granted the motion with

respect to both counts of the complaint and dismissed the

action. From the judgment entered on Judge Knapp’s opinion,

this appeal has been taken.

Turning to appellant’s claim under the LHWCA, he con-

tends, first, that he was an “employee” within the meaning of

§ 2(3) of the LHWCA, 33 U.S.C. § 902(3) (1976). Second, he

contends that he was injured as the result of the negligence of a

vessel within the meaning of 33 U.S.C. § 905(b) (1976), so that

his remedies are not limited by the exclusivity provision of the

LHWCA, 33 U.S.C. § 905(a) (1976). Since we hold that the

4 In order to obtain compensation for the injuries he sustained as the

result of his fall on December 12, 1979, appellant applied for and

received benefits under the New York Workers’ Compensation Law.

20a

record establishes that he was not engaged in maritime employ-

ment, we do not reach his second contention.

In P C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979), the

Supreme Court explained that the status test for recovery

under the LHWCA is not directed at geographical considera-

tions but “refers to the nature of a worker’s activities.”* /d. at

78. The fact that appellant’s accident took place on the Peking

is not dispositive of the question of whether he was engaged in

“maritime employment” within the meaning of § 2(3) of the

LHWCA.

Our Court, in decisions since Pfeiffer, has interpreted the

status test to “preclud[e] any application of the LHWCA.. .

to an employee whose activities do not bear a significant

relationship to navigation or to commerce on navigable wa-

ters.” Fusco v. Perini North River Associates, 622 F.2d 1111,

1113 (2 Cir. 1980), cert. denied, 449 U.S. 1131 (1981). Accord,

Churchill v. Perini North River Associates, 652 F.2d 255, 256

n.1 (2 Cir. 1981) (per curiam) (quoting Fusco), cert. granted

sub nom. Director, Office of Workers’ Compensation Pro-

grams v. Perini, __. U.S. ___._ (1982). Other courts of ap-

peals have adopted or retained similar tests subsequent to

Pfeiffer. E.g., Duncanson-Harrelson Co. v. Director, Office of

Workers’ Compensation Programs, 644 F.2d 827, 830 (9 Cir.

1981); Odom Construction Co. v. Department of Labor, 622

F.2d 110, 113 (5 Cir. 1980), cert. denied, 450 U.S. 966 (1981).

The latter two cases rely on Weyerhauser Co. v. Gilmore, 528

F.2d 957 (9 Cir. 1975), cert. denied, 429 U.S. 868 (1976), a

pre-Pfeiffer case which stated a requirement that “maritime

employment” must have “a realistically significant relationship

to ‘traditional maritime activity involving navigation and com-

merce on navigable waters.’ ” Jd. at 961, quoting Executive Jet

Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 272 (1972).

5 The LHWCA also includes situs requirements which are geographi-

cal in nature. Pfeiffer, supra, at 73-74. There is no suggestion that the

LHWCA'’s situs requirements are not satisfied in the instant case where

the accident did take place on navigable waters.

2la

We hold that appe..ant has not satisfied the status test. The

Peking’s rudder has been welded in one position. She has not

put to sea under her own power since the 1930’s. Her present

owners state that they do not intend to return her to active

navigation. The LHWCA was intended to apply only to

workers employed in activities related to vessels which at least

have the potential to engage in navigation or in commerce on

navigable waters. The Peking no longer has that potential.

The cuses cited by appellant do not support a contrary

conclusion. For example, in Arbeeny v. McRoberts Protective

Agency, 642 F.2d 672 (2 Cir.), cert. denied, __.. U.S. ___

(1981), we set aside orders of the Benefits Review Board which

denied recovery on the ground that the petitioner pier guards

were not engaged in “maritime employment” within the mean-

ing of § 2(3). In that case the dispositive factor was that

petitioners’ “major function . . . was to protect against the

loss of cargo which unquestionably serves a maritime pur-

pose—the safe transit of goods shipped by sea.” /d. at 675.

Appellant’s work in the instant case served no such purpose.

Likewise, appellant’s reliance on Mississippi Coast Marine,

Inc. v. Bosarge, 637 F.2d 994 (5 Cir.), modified, 657 F.2d 665

(1981), is misplaced. There, the Fifth Circuit reviewed an order

of the Benefits Review Board which affirmed an award to

respondent who, at the time of his injury, was working on a

pleasure boat in his employer’s boatyard. Respondent’s usual

work was that of a land-based carpenter in the boatyard. The

Fifth Circuit affirmed the award because “{[iJt is difficult to

conceive of an activity more fundamental to maritime employ-

ment than the building and repair of navigable vessels.” Id. at

998 (emphasis added). Appellant’s work in the instant case,

unlike that in Bosarge, bore no relationship to navigation or

commerce on navigable waters.

We hold that, since appellant was not engaged in “maritime

employment” within the meaning of § 2(3) of the LHWCA,

the district court correctly granted the Museum’s motion for

summary judgment with respect to Count I.

22a

IV.

This brings us to appellant's second count which alleged that

his discharge was discriminatory in violation of § 11(c)(1) of

the OSHA, 29 U.S.C. § 660(c)(1)(1976), because he had com-

plained that the Peking was unsafe. The district court granted

summary judgment as to this count on the ground that appel-

lant had failed to file a timely complaint with the Secretary of

Labor, as required by § 11(c)(2) of the OSHA, 29 U.S.C.

§ 660(c)(2) (1976).°

Appellant now urges us to hold that there is a private right

of action under § 11(c)(1) of the OSHA. The Sixth Circuit

declined to imply such a right of action in Taylor v. Brighton

Corp., 616 F.2d 256 (6 Cir. 1980). In the instant case, we hold

that there is no need for us to reach this question, since

appellant did not exhaust the administrative remedies which

were available to him.

Whether § 11(c)(2) precludes a private right of action under

§ 11(c)(1), as the Sixth Circuit held in Taylor, appellant first

must utilize the remedies provided by Congress. See, e.g.,

McKart v. United States, 395 U.S. 185 (1969). Appellant failed

to file a timely complaint with the Secretary. The word “may”

in § 11(c)(2) does not mean that the remedy provided for in

that section is merely one of several alternatives. While we do

not reach the question whether there is an implied private right

6 29 U.S.C. § 660(c)(2) (1976) provides:

“(2) Any employee who believes that he has been discharged or

otherwise discriminated against by any person in violation of this

subsection ay, within thirty days after such violation occurs, file a

complaint with the Secretary alleging such discrimination. Upon

receipt of such complaint, the Secretary shall cause such investiga-

tion to be made as he deems appropriate. If upon such investiga-

tion, the Secretary determines that the provisions of this subsection

have been violated, he shall bring an action in any appropriate

United States district court against such person. In any such action

the United States district courts shal! have jurisdiction, for cause

shown, to restrain violations of paragraph (1) of this subsection and

order all appropriate relief including rehiring or reinstatement of

the employee to his former position with back pay.”

23a

of action under § 1 1(c)(1), we do hold that, even if one existed,

it could be invoked only after the filing of a timely complaint

with the Secretary had proved fruitless.

We hold that, since appellant failed to exhaust his adminis-

trative remedies, the district court correctly granted the Mu-

seum’s motion for summary judgment with respect to Count

Il.

Affirmed.

KEARSE, Circuit Judge, concurring:

I concur in the judgment of the Court and in Parts I-III of

the majority opinion. With respect to Part IV of that opinion, I

agree that plaintiff may not recover, but I do so because I

conclude that, for the reasons set forth in Taylor v. Brighton

Corp., 616 F.2d 156 (6th Cir. 1980); see also Pavolini v.

Bard-Air Corp., 645 F.2d 144, 146 n.3 (2d Cir. 1981), there is

no implied right of action under 29 U.S.C. § 660(c).

24a

District Court Memorandum and Order

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

80 Civ. 3258 (WK)

— +

CRAIG MCCARTHY,

Plaintiff,

—against—

THE BARK PEKING, HER SAILS, EQUIPMENT, APPUR-

TENANCES, ETC., and SOUTH STREET SEAPORT MUSEUM,

Defendant and Third-Party Plaintiff,

—against—

THE STATE INSURANCE FUND and NORTHBROOK

EXCESS AND SURPLUS INSURANCE COMPANY,

Third-Party Defendants.

MEMORANDUM AND ORDER

KNAPP, D.J.

The bark PEKING, launched in 1911 at Hamburg, Ger-

many, is a four-masted steel-hulled 377-foot vessel weighing

2,883 net tons. Between 1974 and 1976 it was purchased for its

present owners, defendant South Street Seaport Museum;

towed across the Atlantic to New York; berthed for repairs on

Staten Island; and, ultimately, towed to South Street Seaport.

It there serves as a museum and is occasionally rented out to

private parties as an entertainment hall. Although it remains

capable of being towed, its rudder has been welded in one

25a

position and it has not put to sea under its own motive power

since the 1930’s. It is not subject to inspection by the United

States Coast Guard and has not been so inspected. Its present

owners affirm that they do not intend ever to return it to active

navigation, and nothing in the record before us suggests a

contrary intent.

On December 12, 1979 plaintiff, who was at that time an

employee of defendant South Street Seaport Museum, was

injured when a gant line gave way as he was repainting the

PEKING’s mast and spars in the course of his duties as an

“historic ironworker.” He returned to work on March 13,

1980. He has since filed a claim for workmen’s compensation

under, and has received benefits pursuant to, the New York

Workmen’s Compensation Law. He returned to work on

March 13, 1980.

On March 14, 1980, after conferring with various low-level

members of the museum administration, plaintiff met with the

president of the defendant museum and asserted that the

PEKING was seriously unsafe in several respects. The presi-

dent, claiming that plaintiff's conduct amounted to insubor-

dination, responded by firing him.

Plaintiff thereafter initiated this lawsuit against the bark

PEKING and her owners, defendant South Street Seaport

Museum. In Count I of the complaint plaintiff alleges ad-

miralty and maritime jurisdiction and purports to state a claim

against each defendant for negligence causing his December

12, 1979 fall. In Count II plaintiff claims that defendant South

Street Seaport Museum discharged him in violation of his

rights under § 11(c)(1) of the Occupational Safety and Health

Act of 1970 (“OSHA”), 29 U.S.C. § 660(c)(1), and regulations

promulgated thereunder, 29 C.F.R. § 1977.9(c) and seeks back-

pay and an order requiring the museum to reinstate him to his

employment and to refrain from instructing him to work in

unsafe conditions.

The defendants now move for summary judgment on both

counts. For reasons that follow, we grant that motion.

26a

Discussion

Count I

It is now settled that the Longshoremen’s and Harbor

Workers’ Compensation Act, 33 U.S.C. § 901, ef seq.

(“LHWCA”), extends only to workers engaged in “maritime

employment.” PC. Pfeiffer Co., Inc. v. Ford (1979) 444 U.S.

69, 73; Fusco v. Perini North River Associates (2d Cir. 1980)

622 F.2d 1111, 1113, cert. denied sub nom. Sullivan v. Perini

North River Associates (1981) 101 S. Ct. 953. Having carefully

considered the arguments of counsel, we conclude that plain-

tiff was not engaged in such “maritime employment.”

In Fusco, the Second Circuit construed “maritime employ-

ment” to imnort a “realistically significant relationship to

maritime activities involving navigation and commerce over

navigable waters.” Fusco, supra, 622 F.2d at 1112. This brings

to mind Judge Dawson’s observations concerning admiralty

law in McGuire v. City of New York (S.D.N.Y. 1961) 192 F.

Supp. 866. He there stated (at 871):

“Admiralty law is, in fact, the law of commerce. It was

engendered as a result of the needs of commerce and

flourished because of those same needs. Where it was

feared that local ordinances or decisions might unduly

impinge on international or interstate commerce, local

statutes were held inapplicable in the face of the need for

uniformity in maritime law. The touchstone has been

whether the action . . . was not merely one of local

concern but was in fact a thing having an intimate relation

with navigation and interstate and foreign commerce.”

In the case at bar plaintiff’s employment had no relationship

to navigation or to commerce over navigable waters. He was a

museum employee and his activities related to keeping the

museum in order. It is immaterial that the museum had at one

time been a vessel in navigation, or that it happens to be

located on navigable waters. Neither of these facts creates a

“realistically sixwificant relationship” between plaintiff’s em-

27a

ployment and ongoing navigation, or between such employ-

ment and interstate or foreign commerce. To the contrary, it is

clear that plaintiff's employment was of purely local concern. '

Plaintiff apparently concedes—as he must—that unless his

negligence claim falls within the ambit of LHWCA, it is barred

by the exclusivity provision of the New York Workmen’s

Compensation Law, O’Rourke v. Long (1976) 41 N.Y.2d 219,

391 N.Y.S.2d 553. It follows that such claim must be dis-

missed.

Count II

Plaintiff predicates his claim for wrongful discharge on

§ 11(c)(1) of OSHA, 29 U.S.C. § 660(c)(1). That section pro-

hibits an employer from discharging an employee for exercis-

ing “any rights” afforded by OSHA. It is clear beyond

peradventure, however, that plaintiff is in no position to claim

relief under OSHA. The statute sets forth in express detail the

procedures to be followed by an employee who believes he has

been discharged or otherwise discriminated against in violation

of § 11(c)(1)—i.e., because he has exercised any rights af-

forded him by the Act. Specifically, the statute provides in

§ 11(c)(2), 29 U.S.C. § 660(c)(2), that such an employee:

“may, within thirty days after such violation occurs, file a

complaint with the Secretary alleging such discrimination.

Upon receipt of such complaint, the Secretary shall cause

such investigation to be made as he deems appropriate. If

upon such investigation, the Secretary determines that the

provisions of this subsection have been violated, he shall

bring an action in any appropriate United States district

court against such person. In any such action the United

States district courts shall have jurisdiction, for cause

shown to restrain violations of paragraph (1) of this

l Any argument that the nature and location of the PEKING may

have imposed a greater duty of care on its owners than that borne by

owners of less intrinsically dangerous structures goes to the question of

negligence and not to the question of coverage under LHWCA.

28a

subsection and order all appropriate relief including re-

hiring or reinstatement of the employee to his former

position with back pay.”

Having never filed a complaint with the Secretary alleging

that his discharge on March 14, 1980 constituted discrimina-

tion within the meaning of § 11(c)(1), plaintiff has forfeited

any right OSHA may have afforded him to a remedy for such

discharge. We need pass on no other question.

It foliows that defendant's motion for summary judgment

must be granted. The action is dismissed.

SO ORDERED.

Dated: New York, New York

June 3, 198]

WHITMAN KNAPP, U.S.D.J.

29a

Affidavit of Norman Brouwer in Support of

Motion For Summary Judgment

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

80 Civ, 3258 (WK)

CRAIG MCCARTHY,

Plaintiff,

—against—

The Bark PEKING, her sails, equipment, appurtenances, etc.,

and SOUTH STREET SEAPORT MUSEUM,

Defendant and Third-Party Plaintiff,

—against—

THE SIATE INSURANCE FUND and NORTHBROOK

EXCESS AND SURPLUS INSURANCE COMPANY,

Third-Party Defendants.

AFFIDAVIT

STATE OF NEW YORK

COUNTY OF NEW YORK, ss.:

NORMAN BROUWER, being duly sworn, deposes and says:

J. I am the historian of the South Street Seaport Museum,

curator of collections and the associate editor of Seaport

Magazine responsible for historical accuracy. In my role as

historian | have become familiar with the full history of the

museum artifact PEKING and I now summarize that history.

2. PEKING was built in 1911 at Hamburg, Germany and

entered the nitrate trade. In 1914, PEKING was caught at

Valparaiso, Chile by the outbreak of World War I. At the

conclusion of that war, she was awarded to Italy as repara-

tions, but made only one passage under the Italian flag, from

Valparaiso to Europe when she was laid up. In 1922 PEKING

returned to the nitrate trade and continued in that trade until

1931 when she was purchased by the British Shaftesbury

Homes and Arethusa Society where she was used as a floating

school for boys. Conversion of PEKING for her schoolship

hulk duties included installation of berthing spaces, offices,

classrooms, & combination auditorium and gym, library,

chapel and living quarters for the school’s headmaster. PE-

KING was renamed ARETHUSA during this period, which

was disrupted only during World War II when PEKING was

used to provide accommodations for Royal Navy engineering

petty officers at Chatham Dockyard.

3. On October 31, 1974 PEKING was purchased for the

South Street Seaport Museum by the J. Aron Charitable

Foundation at which time the name was changed back from

ARETHUSA to PEKING.

4. PEKING was towed from England to New York by the

Dutch tug UTRECHT and arrived in New York on July 22,

1975. PEKING had no motive power of its own and, indeed,

was treated as a floating hulk by both English and United

States customs officials.

5. PEKING is located at the South Street Seaport Museum.

PEKING has not served as a commercial cargo vessel since at

least 1921. PEKING lacks any motive power and the rudder

has been welded into a fixed position since the 1930’s such that

PEKING would be incapable of movement under its own

power.

6. At present restoration work is performed aboard PE-

KING, but for the sole purpose of restoring PEKING as a

historically accurate museum exhibit and not for purposes of

making PEKING tit for a return to traditional maritime

3la

navigation and commerce, such as carrying passengers or

freight for hire.

7. PEKING is not an enrolled or registered vessel and has

not been such since its sailing days, with the possible exception

of the World War il use by the Royal Navy, at which time

PEKING was used only to provide accommodations to Royal

Navy personnel.

8. PEKING is not subject to inspection and in fact has not

been inspected by the United States Coast Guard.

/s/ NORMAN J. BROUWER

Norman Brouwer

Sworn to before me this

21st day of April, 1981

/s/ SUSAN J. PULASKI |

Notary Public

Susan J. Pulaski

Notary Public, State of New York

No. [illegible]

Qualified in Kings County

Commission expires on March 30, 1982

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.