# Petition — South Street Seaport Museum v. McCarthy

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 465 U.S. 1078

## Text

8 3 Office - Supreme Court, U.S.
-85) FILED
N / cod 19
ree v 383
3 STEVAS
tt K
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
a nck g aia os ocak gutiene bk oevne ws 8
ee ol ua an s'n'e uh 'n aa us ccldk case 30n 29
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

25

24

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

15

23

(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

20

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

<a

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

Vi
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

Re

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.

4

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:

2

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.

5

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.

6

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,

8

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

9

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

10

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

13

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

14

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.

15

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).

16

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

17

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)

18

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”.

19

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

20

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.”

21

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”.

22

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.’ ”

23

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.

24

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

25

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

26

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

27

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)

28

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.

29

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

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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.

2a

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.

a

TIMBERS, Circuit Judge:

Following our prior decision in this case on April 12,
1982, 676 F.2d 42 (2 Cir. 1982), appellant petitioned for

3a

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

4a

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).

Sa

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-

6a

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

Ja

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’’.

8a

“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).

9a

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.

1

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

a

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)

a
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.

am

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.

Oa

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0641%3A1. Public record. Not legal advice.