# Amicus Curiae Brief — Norfolk & Western Railway Co. v. Goode (No. 88-127)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1988

## Text

CHESAPEAKE AND Oui0 RAILWAY COMPANY, PETITIONER .
¥ v.
q Nancy J. SCHWALB AND WILLIAM MCGLONE

NORFOLK AND WESTERN RAILWAY COMPANY, PETITIONER
Vv.
Rosert T. Goooe, Jr.

ON WRITS OF CERTIORARI t
TO THE SUPREME COURT OF VIRGINIA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE .
SUPPORTING PETITIONERS a

» Davi L. SHAPIRO
ae - a

Depariment of
Washington, D.C. 20530
(202) 633-2217

QUESTION PRESENTED

Whether “employee{s]” engaged in “maritime employ-
ment” under Section 2(3) of the Longshore and Harbor
Workers’ Compensation Act, 33 U.S.C. 902(3) (1982 &
Supp. IV 1986), include not only those workers who ac-
tually load or unload cargo but also all workers on a
covered site who perform work that is an essential element

or integral part of the process of loading or unloading.

(1)

TABLE OF CONTENTS

Argument:
“Employees” engaged in “maritime employment” include
all workers on a covered situs who perform work that is an
essential element or integral part of the process of loading

A. The broad language and the legislative history of
the LHWCA’s status provision require an expan-
sive view of the Act’s coverage ...............

B. The state court’s standard conflicts with the prin-
ciples of coverage enunciated by this Court and
followed by the lower federal courts and the
Benefits Review Board .....................

C. The Department of Labor’s view on the scope of
LHWCA coverage is entitled to deference .....

TABLE OF AUTHORITIES

Cases:

Bennett v. Mason Terminals, Inc., 14 Ben. Rev. Bd. Serv.
ESTEE DI OOOO EO
Cabezas v. Oceanic Container Serv., Inc., 11 Ben. Rev.
I ono. cc ccc cccccccecccece
Calbeck v. Travelers Ins. Co., 370 U.S. 114 (1962) ......
Caldwell v. Ogden Sea Transport, Inc., 618 F.2d 1037
EEE EE
Chevron U.S.A. Inc. v. Natural Resources Defense Coun-
ee I OED og occ c cc cece cctsccccce.
Conti v. Norfolk & W. Ry., 566 F.2d 890 (4th Cir. 1977)...
De Robertis v. Oceanic Container Service, Inc., 14 Ben.
Rev. Bd. Serv. (MB) 284 (1981) ....................

(111)

Page

sw N =

10

10

24

10, 28

26

IV
Cases — Continued: Page
Director, OWCP v. Perini North River Assocs., 459 U.S.
PEE a cccucocacnesecesenenecenabemense 7, 11, 13, 27
Garvey Grain Co. v. Director, OWCP, 639 F.2d 366 (7th
PE eucacvcedcveseceseseceuncsesasenseteses 23
Harmon v. Baltimore & O.R.R., 741 F.2d 1398 (D.C.
NGA Se Serra l
Longshoremen’s and Harbor Workers’ Compensation Act
of 1927, ch. 509, § 3, 44 Stat. 1426 ..............55.. 10
Miscellaneous:
IED « cadccvecccccnccacosesesse 16
Se Es CPCI 5 cc cccccorcccccicocccces 17
130 Cong. Rec. (1984):
TA. cans cekoséenes ecnenatnecetaiesss 18
PERT en66. cdoys cgcnanecenncaeececés besent 17
PT chneds cobccedvenethseeeees o¥enieneinbs 17
th h «oes bods aduccesandes cegnenesenens 19
Di ihas dcceudacetseneeseosssdocbaseeneas 17, 18
PT Ui 6. cise eduphbésesednsnceussethenhen 18, 19
he ee dee comes pesecenpeeéstenteus 17
p. S11622 (daily ed. Sept. 20) .................. 17, 18, 19
p. S$11623 (daily ed. Sept. 20) ..............00005- 17
4 A. Larson, Larson's Workmen's Compensation Law
GED aber cocanedesiéieienh ds shes eminence 23, 2¢, 28-29
H.R. Rep. No. 1441, 92d Cong., 2d Sess. (1972) ........ 11, 12,
13, 14, 27
H.R. Rep. No. 570, 98th Cong., Ist Sess. (1983) ...... 16, 17, 18 .
1 M. Norris, The Law of Maritime Personal Injuries 3d
GE, TEE éneoccckshensbacddesesdanseseencs cee 24

Office of Workers’ Compensation Programs, Employ-
ment Standards Admin., U.S. Dep’t of Labor, LHWCA
Program Memorandum No. $8, Guidelines for Deter-
mination of Coverage of Claims Under Amended Long-
shoremen’s Act (Aug. 10, 1977) ... 2... oo eee 29

Report of the National Commission on State Workmen’s
Compensation Laws (Washington, D.C., July 31,
BUD nncocveveace Comasbele 0Cse subs cbkadeudas 14, 15, 29

Vil
Miscellaneous — Continued: Page
S. 1182, 97th Cong., ist Sess. (1981) .................. 16
S. Rep. No. 973, 69th Cong., Ist Sess. (1926) ........... 28
S. Rep. No. 1125, 92d Cong., 2d Sess. (1972) ........... 11, 12,
13, 14, 15, 27
S. Rep. No. 498, 97th Cong., 2d Sess. (1982) ........... 16
S. Rep. No. 81, 98th Cong., Ist Sess. (1983) ............ 16, 17,
18, 19

In the Supreme Court of the Gnited States

OcToBER TERM, 1988

No. 87-1979
CHESAPEAKE AND OHIO RAILWAY COMPANY, PETITIONER
v.
Nancy J. SCHWALB AND WILLIAM McCGLONE

No. 88-127
NORFOLK AND WESTERN RAILWAY COMPANY, PETITIONER
v.
Rosert T. Goope, Jr.

ON WRITS OF CERTIORARI
TO THE SUPREME COURT OF VIRGINIA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

The Secretary of Labor, through the Department of
Labor’s Office of Workers’ Compensation Programs
(OWCP), administers the Longshore and Harbor
Workers’ Compensation Act (LHWCA), 33 U.S.C. 901 e
seq.' The Director of the OWCP is a party to and may
participate in any proceedings under the Act. These cases

' The Longshoremen’s and Harbor Workers’ Compensation Act
was retitled by the Longshore and Harbor Workers’ Compensation
Act Amendments of 1984, Pub. L. No. 98-426, § 27(d)(1), 98 Stat.
1654.

(1)

2

require the Court to determine the scope of the employee
status requirement for coverage set forth in Section 2(3) of
the LHWCA, 33 U.S.C. 902(3) (1982 & Supp. IV 1986).
As indicated in our brief filed at the Court’s invitation at
the petition stage, resolution of the issue will affect federal
policy concerning coverage provided by the Act and will
implicate the Secretary’s administration of the Act. The
United States therefore has a substantial interest in this
case.

STATEMENT

1. Petitioners, Chesapeake and Ohio Railway Com-
pany (C&O) and Norfolk and Western Railway Company
(N&W), operate coal loading terminals in the Hampton
Roads a:ca of Virginia. C&O’s terminal abuts the James
River (87-1979 Pet. 7), while N&W’s facility, known as
Lambert’s Point, adjoins the Elizabeth River (88-127 Pet.
7). Petitioners’ freight trains transport coal mined inland
for loading onto ships docked at the terminals’ piers.
Upon arrival, the coal-laden railway cars remain in the ter-
minals’ “barney” yards until the shiploading process
begins. J.A. 35. The process of loading coal into ships’
holds is highly mechanized and, in all material respects,
identical at both petitioners’ terminals. When shiploading
begins, railway cars move one-by-one from the barney
yards and onto “dumpers” at the land end of the piers. A
mechanical device called a “retarder” stops each loaded
coal car at the correct position on the dumper. Next, other
mechanical devices lift and rotate the car, so that its con-
tents drop through a hopper to conveyor belts that feed
the coal directly onto the waiting ships. After unloading,
the cars rell back to the terminals’ holding yards, from
which they are eventually sent inland. Barring mechanical
failure or other incident, the coal loading process is con-

3

tinous from the time a car leaves the barney yard until it
returns, empty, to the holding yard™9.A. 21, 35; 87-1979
Pet. 7-9; 88-127 Pet. 8-9.

The respondents in No. 87-1979, Nancy J. Schwalb and
William McGlone, were laborers employed by C&O to
perform general cleaning at its terminal. Though each had
varied duties, they both were frequently required, during
the actual shiploading process, to clear away coal that
spilled from the conveyor belts and the “trunnion rollers,”
the devices at the ends of the dumper that enable it to
rotate suspended railway cars. Failure to clear away this
“trash coal” results in malfunction of the shiploading
equipment, thus halting the loading process. J.A. 21, 29,
30-31; 87-1979 Pet. 9. While Schwalb and McGlone easily
could have replaced the trash coal on the conveyor belts,
applicable union agreements prohibited them from doing
so; rather, laborers from a different department per-
formed that task. J.A. 21; 87-1979 Pet. 9-10; 87-1979 Br.
in Opp. 5.

The respondent in No. 88-127, Robert J. Goode, Jr.,
was a machinist for N&W who worked in the Motive
Power Department at Lambert’s Point.? That depart-
ment’s function was to maintain and operate the coal
facility, with machinists in the Department devoting the
majority of their time to maintaining and repairing
loading equipment and machines. J.A. 35-37.

Schwalb sustained a serious head injury on January 11,
1983, when she fell while walking to clear trash coal from
the trunnion rollers. 87-1979 Pet. 10-11; 87-1979 Br. in
Opp. 2. McGlone was injured on February 1, 1983, as he
was attempting to clear away trash coal beneath a moving

? N&W employs machinists throughout its rail system, assigning
them to different sites and different jobs on the basis of seniority.
J.A. 35-36; 88-127 Br. in Opp. 5-6.

4

conveyor belt. 87-1979 Pet. 10; 87-1979 Br. in Opp. 3.
Goode was injured on February 11, 1985, while repairing
the retarder located on one of the dumpers at Lampert’s
Point. 88-127 Pet. 9-10; N&W Br. in Opp. 2-3. Each re-

spondent brought a timely action under the Federal

eee Liability Act (FELA), 45 U.S.C. 51 ef seq., in
the appropriate circuit court of Virginia. J.A. 20-21;

N&W Br. in Opp. 2. C&O filed special pleas to the courts’
jurisdiction, contending that the respondents’ exclusive
remedy was under the LHWCA, 33 U.S.C. 901 ef seq.
N&W moved to dismiss on the same basis. J.A. 28-29, 30,
34-35.

2. The courts for the Third Judicial Circuit
(McGlone), Fourth Judicial Circuit (Goode), and Seventh
Judicial Circuit (Schwalb) of Virginia each decided that
the LHWCA applied to respondents’ claims, sustained
petitioners’ jurisdictional challenges, and dismissed the
FELA actions. J.A. 40-42, 34-35. In each case, the court
found no serious dispute that the respondents satisfied the
LHWCA’s “situs” requirement by working in a statutorily
covered geographical area (J.A. 28-29, 31, 38-39), and
thus focused principally on whether the respondents were
“employee[s}” as defined by Section 2(3) of the Act, 33
U.S.C. 902(3) (1982 & Supp. IV 1986).

In resolving this issue of employee status, the circuit
courts in the McGlone and Good: cases explicitly
acknowledged a conflict between the restrictive approach
to the question that the Virginia Supreme Court followed

> FELA makes “common carrier(s] by railroad” liable in damages to
their employees for work-related injuries occurring as a result of
employer negligence, and confers concurrent jurisdiction over claims
under the Act on state and federal courts. 45 U.S.C. 52, 56. As this
Court long ago recognized, however, the LHWCA is the exclusive
remedy for railroad workers who are injured while engaged in
maritime employment. Nogueira v. New York, N.H. & H.R.R., 281
U.S. 128, 136-138 (1930).

5

in White v. Norfolk & W. Ry., 217 Va. 823, 232 S.E.2d
807, cert. denied, 434 U.S. 860 (1977), and the more ex-
pansive standard adopted by the federal courts of appeals
in such decisions as Price v. Norfolk & W. Ry., 618 F.2d
1059 (4th Cir. 1980). J.A. 31-33, 37-38. The courts viewed
the Virginia Supreme Court’s White standard as confining
LHWCA coverage to only those workers on the situs who
were “directly involved” in the loading of cargo. J.A.
31-32, 37-38. By contrast, the courts believed, the prevail-
ing standard among the federal courts of appeals is con-
siderably broader, encompassing all workers on the situs
whose jobs comprise “an essential element in the loading
and unloading of the vessels.” J.A. 32, 38. As the
McGlone court interpreted it, the federal standard does
not require an employee to be involved “in the actual
loading of ships,” if the maintenance work the employee
performed “was essential to the movement of maritime
cargo.” J.A. 32. The McGlone and Goode courts resolved
this conflict between state and federal court «mterpreta-
tions against adherence to the Virginia Supreme Court's
test; in their view, following White “would be to interpret
a Federal law contrary to all of the decisions of the Federal
courts” (J.A. 33), and the test formulated by the federal
courts was, in fact, the proper test. J.A. 38.

Applying the federal courts’ status test, the Virginia cir-
cuit courts concluded that the LHWCA covered the re-
spondents because they performed tasks essential to the
loading of coal at petitioners’ terminals. McGlone’s clean-
ing duties were essential because the failure to clear away
coal that had fallen from the belts “would eventually in-
terfere with the loading operation and bring it to a halt.”
J.A. 31. Similarly, Schwalb’s cleaning duties conferred
LHWCA coverage because “if the spilled coal was not
removed * * * it could have haulted [sic] the process of
loading the coal aboard the vessels.” J.A. 29. And Goode

6

was an employee under the LHWCA because he main-

of loading and unloading” (J.A. 36-37, citing Herb’s
3. The Supreme Court of Virginia consolidated

LHWCA to a painter who did not actually handle cargo
but who had maintenance duties essential to the “entire
[loading] process” (J.A. 24-25 (quoting Price, 618 F.2d at
1062 n.4)), and agreed here that the failure to remove
“trash coal” could interrupt that process. J.A.

N
—

process” standard, and adhered instead to the restrictive
test set out in White. J.A. 26-27. Under that test, the court

held, workers must show that their “‘own work and
employment’ ” bears “ ‘a realistically significant relation-
ship’ to ‘traditional maritime activity involving navigation
and commerce on navigable waters,’ ” to bring themselves
within the LHWCA. J.A. 23-24, quoting Weyerhaeuser
Co. v. Gilmore, $28 F.2d 957, 961 (9th Cir. 1975), cert
denied, 429 U.S. 868 (1976). Reading this Court's “essen-
tial elements of [loading or] unloading” language in
Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249
(1977), to limit LHWCA coverage only to those employees

* The circuit court in Goode, explicitly concluding that the federal
«‘andard should prevail over the State’s White standard to the extent
that the standards differed, held in the alternative that the activities of
Goode qualified him for coverage under the White test as weil. J.A.
37.

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1. The Supreme Court of Virginia erroneously con-
strued Section 2(3), 33 U.S.C. 902(3), of the LHWCA to

require that workers be directly involved in the physical
process of loading or unloading cargo in order to qualify
as employees under the Act. Congress defined “employee”

* The Court did not consider, as an independent ground on which it
could sustain the lower court's holding, the fact that Goode’s duties as
a pier mechanic at times involved work “over the water” (88-127 Br. in
Opp. 6; J.A. 191, 195), and that such work therefore may have
qualified Goode as a covered employee under Northeast Marine Ter-
minal Co. v. Caputo, 432 U.S. 249, 273 (1977) (post-1972 LHWCA
meant to cover “amphibious workers” or those who spent “at least
some of their time in indisputably longshoring operations and who,
without the 1972 Amendments, would be covered for only part of
their activity”) and Director, OWCP v. Perini North River Assocs.,
459 U.S. 297, 311-312 (1983) (workers injured on navigable waters
before 1972 were covered under LHWCA without regard to duties
performed; post-1972 Act covers all who were previously covered).

to mean “any person engaged in maritime employment.”
The breadth of the statutory language suggests that courts
should take an expansive view of the LHWCA's extended

costa and Go adenn thn Aan

that of respondents here. Even as to these exclusions,

however, Congress precluded LHWCA coverage only if
the workers involved were eligible for benefits under state

the Act’s status provision should be interpreted broadly
and in functional terms, so that the Act achieves as objec-
tive of providing uniform coverage for those engaged in
longshoring and related jobs. Thus, this Court has ‘ound
coverage for an employee whose work was an integral part
of the unloading process as altered by the advent of new
technology, and for a terminal laborer who spent only
some of his time in indisputably longshoring operations.
Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249
(1977). Similarly, the Court has found coverage for two
land-based workers who did not load or unload material

9

directly to or from ships, but who nonetheless were
responsible for some portion of the loading and unloading
activity and thus performed tasks that were an integral
part of the overall process of loading or unloading cargo.
P.C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979). In so doing,
the Court has rejected distinctions in coverage on the basis
of union labels, the “point of rest” theory, or similar
restrictions created by employer assignment policies,
because they would artificially curtail the functional
analysis required by the Act.

Consistently with these decisions, the courts of appeals
and the Benefits Review Board have uniformly viewed the
question whether employees are engaged in “longshoring”
and thus have status under the Act by focusing on the
nexus between a worker’s actual duties and the overall
process of loading and unloading cargo. Employing this
functional approach, the courts of appeals and the Board
have extended LHWCA coverage to any employee on a
covered situs who, like respondents, performs duties that
comprise an “essential element” or “integral part” of the
overall loading and unloading process, even if those duties
do not themselves include physically or mechanically
handling maritime cargo. The court below erred in reject-
ing this approach and in limiting the Act’s coverage to only
that considerably smaller class of employees who have a
direct involvement with the physical process of loading
and unloading cargo.

3. Finally, the state court’s restrictive interpretation of
landward coverage under the LHWCA conflicts with the
Department of Labor’s interpretation of the Section 2(3)
Status requirement, an interpretation the Department has
consistently applied since 1972 in administering the
LHWCA workers’ compensation program. Because that in-
terpretation is based on a permissible construction of the
Statute, it is entitled to deference and should be given effect.

10

ARGUMENT

“EMPLOYEES” ENGAGED IN “MARITIME EMPLOY-
MENT” INCLUDE ALL WORKERS ON A COVERED SITUS
WHO PERFORM WORK THAT IS AN ESSENTIAL ELE-
MENT OR INTEGRAL PART OF THE PROCESS OF
LOADING OR UNLOADING

A. The Broad Language And The Legislative History Of
The LHWCA’s Status Provision Require An Expansive

View Of The Act’s Coverage

1. The language and legislative history of the 1972
amendments indicate that they provide broader coverage
of land-based workers than that identified by the Supreme
Court of Virginia. Congress amended the Act in an at-
tempt to conclude a long saga of jurisdictional disputes
over the coverage of the LHWCA.® In particular, Con-

* That saga, frequently revisited by this Court, began with this
Court’s determination in Southern Pac. Co. v. Jensen, 244 U.S. 205
(1917), that a State was without power to extend workers’ compensa-
tion to a worker injured on a gangplank between a wharf and a vessel
lying in navigable waters. According to the Court, such state action
threatened the “uniformity in respect to maritime matters” that the ad-
miralty clause of the Constitution was meant to ensure (id. at 217); the
Court consequently struck down two subsequent attempts by Con-
gress to delegate the power to provide workers’ compensation for
maritime injuries to the States. See Knickerbocker Ice Co. v. Stewart,
253 U.S. 149 (1920); Washington v. W.C. Dawson & Co., 264 U.S.
219 (1924). In response, Congress in 1927 enacted the LHWCA, which
provided federal compensation to workers injured on the seaward side
of the “Jensen line,” but only “if recovery * * * [could] not validly be
provided by State law.” The Longshoremen’s and Harbor Workers’
Compensation Act of 1927, ch. 509, § 3, 44 Stat. 1426.

The work of hammering out the respective jurisdictions of the state
and federal systems continued during the next four decades. By 1972,
three jurisdictional spheres of coverage had emerged. Sun Ship, Inc.
v. Pennsylvania, 447 U.S. 715, 719 (1980). Concurrent federal and
state remedies were available for maritime injuries that were also of
“local concern” (Calbeck v. Travelers Ins. Co., 370 U.S. 114, 126

gress sought to expand the Act’s scope; it wanted to
remedy the coverage anomaly that limitea longshore and
harbor workers to recovering LHWCA benefits for work-
related injuries sustained on navigable waters and left
those who sustained similar injuries on the adjoining land
without an LHWCA remedy.’ See. S. Rep. No. 1125, 92d
Cong., 2d Sess. 1, 12-13 (1972); H.R. Rep. No. 1441, 92d
Cong., 2d Sess. 10-11 (1972); Perini, 459 U.S. at 306-312;

(1962)), while federal remedies alone were available for maritime in-
juries that were not “local” in character (Jensen, supra). Finally,
workers injured landward of the Jensen line—beyond the water's
edge—were consigned to the varying remedies provided by state
workers’ compensation laws. As to these workers, the Court explicitly
invited the Congress to intervene once again, observing that “[t}here is
much to be said for uniform treatment of longshoremen irrespective
of whether they were performing their duties upon the navigable
waters * * * or whether they were performing those same duties on a
pier.” Director, OWCP v. Perini North River Assocs., 459 U.S. 297,
316 (1983) (describing the Court’s statement in Nacirema Operating
Co. v. Johnson, 396 U.S. 212, 219 (1969)). In 1972, Congress
responded to the invitation. See Perini, 459 U.S. at 316.

’ The amendments changed the Act in another major respect as
well. As a quid pro quo for the expansion of coverage under the Act,
Congress eliminated circumvention of the LHWCA compensation
system through resort to an action for unseaworthiness. Sun Ship,
Inc. v. Pennsylvania, 447 U.S. 715, 724 (1980); see S. Rep. No. 1125,
92d Cong., 2d Sess. 1-2, 5-12 (1972); H.R. Rep. No. 1441, 92d Cong.,
2d Sess. 1-8 (1972); Perini, 459 U.S. at 313; Northeast Marine Ter-
minal, 432 U.S. at 260-261. Prior to the 1972 amendments, a
longshoreman or related worker could bring an unseaworthiness ac-
tion against a ship owner for injury incurred on board the ship, and
could do so even if the condition causing the injury had been the fault
of the longshoreman or his or her employer. See, e.g., Seas Shipping
Co. v. Sieracki, 328 U.S. 85 (1946). The shipowner could then recover
the damages paid to the worker from that worker's employer under
theories of express or implicit warranty of workmanlike performance.
See, e.g., Ryan Sievedoring Co. v. Pan Atlantic §.S. Corp., 350 U.S.
124 (1956).

12

Northeast Marine Terminal, 432 U.S. at 256-265; Pfeiffer,
444 U.S. at 72-73.

Congress effected the coverage change through two
specific amendatory clauses. First, it modified the Act’s
“situs” requirement, expanding the definition of
“navigable waters” under Section (a), 33 U.S.C. 903(a),
to include “ ‘any adjoining pier, wharf, dry dock, ter-
minal, building way, marine railway, or other adjoining
area customarily used by an employer in loading,
unloading, repairing, or building a vessel.’ ” Northeast
Marine Terminal, 432 U.S. at 263. Second, Congress
added a new “status” requirement to Section 2(3), 33
U.S.C. 902(3), in order “to describe affirmatively the class
of workers [it] desired to compensate ” Northeast Marine
Terminal, 432 U.S. at 264. Under the amended status test,
LHWCA coverage extends to injured workers “engaged in
maritime employment,” including specifically “any
longshoreman or other person engaged in long: horing
operations, and any harbor-worker including a ship
repairman, shipbuilder, and shipbreaker.” 33 U.S.C.
902(3).

Congress did not define “maritime employment,”
“longshoreman,” or “longshoring operations” in either the
Act or its legislative history. See Northeast Marine Ter-
minal, 432 U.S. at 265.* Nor is coverage limited in any

* The Committee reports accompanying the Act posit only a single
“typical example” of the new status requirement: workers unloading
cargo from a ship or checking it as it is unloaded are to be covered,
while those picking it up for transshipment inland, or performing
“purely clerical” functions not directly involved with the loading or
unloading process, are not to be covered. S. Rep. No. 1125, 92d
Cong., 2d Sess. 13 (1972); H.R. Rep. No. 1441, 92d Cong., 2d Sess.
11 (1972); Northeast Marine Terminal, 432 U.S. at 266, 267. The ex-
ample is useful in identifying the outer bounds of coverage, but it
clearly “does not speak to all situations.” Jd. at 267.

13

case to the explicitly enumerated categories (like “long-
shoreman” and “ship repairman”) that appear in the sec-
tion. See S. Rep. No. 1125, supra, at 13; H.R. Rep. No.
1441, supra, at 10; Perini, 459 U.S. at 318 n.27. Rather,
the broad language of the status test itself suggests that the
courts should take “an expansive view of [its] extended
coverage.” Northeast Marine Terminal, 432 U.S. at 268.

The remedial purpose of the statute reflected in the
legislative history further supports an expansive view of
the Act’s coverage. Northeast Marine Terminal, 432 U.S.
at 268, citing Voris v. Eikel, 346 U.S. 328, 333 (1953). As
chronicled by this Court (see 432 U.S. at 268-273), Con-
gress decided to extend the coverage of the Act shoreward
because of two main concerns. First, the fact that pre-1972
benefits under the LHWCA applied only to those workers
injured over navigable waters led to a significant “dispari-
ty in benefits payable * * * for the same type of injury
depending on which side of the water’s edge and in which
State the accident occurs.” S. Rep. No. 1125, supra, at 12;
H.R. Rep. No. 1441, supra, at 10. Moreover, the disparity
between federal benefits and generally lower state benefits
promised to widen after the passage of the federal benefit
reforms contained in the 1972 amendments. S. Rep. No.
1125, supra, at 12-13; H.R. Rep. No. 1441, supra, at 10;
Pfeiffer, 444 U.S. at 83; Northeast Marine Terminal, 432
U.S. at 262. Second, Congress recognized that the realities
of modern shipping practices, including containerization
and other technological innovations, had moved onto the
land much of the longshoring work it wished to protect. S.
Rep. No. 1125, supra, at 13; H.R. Rep. No. 1441, supra,
at 10; Northeast Marine Terminal, 432 U.S. at 270.°

* The magnitude of the change in the longshoring industry effected
by containerization alone, and the difficulties that change engenders

14

These concerns support a construction of the Act’s land-
ward coverage that focuses on the occupations of those the
Act seeks to protect rather than the “fortuitous cir-
cumstance” of where injuries occur (S. Rep. No. 1125,
supra, at 13; H.R. Rep. No. 1441, supra, at 10; see Pfeif-
fer, 444 U.S. at 78-84; Northcast Marine Terminal, 432
U.S. at 272-273), and that makes allowance for changing
technology (see Northeast Marine Terminal, 432 U.S. at
269-271). As this Court has articulated the functional ap-
proach of the status provision, all employees “involved in
the essential elements of loading and unloading” meet the
status requirement of the Act; employees are excluded
only if they are “ ‘not engaged in the overall process of
loading or unloading.’ ” Herb’s Welding, Inc. v. Gray, 470
U.S. 414, 423 (1985) (quoting Northeast Marine Terminal,
432 U.S. at 267 (emphasis added)). Coverage thus extends
to any worker “responsible for some portion of” the
loading and unloading activity since he or she is “as much
an integral part of the process * * * as a person who par-
ticipates in the entire process.” Pfeiffer, 444 U.S. at
82-83.'°

when it is necessary to identify “longshoring tasks,” have been docu-
mented by this Court. See NLRB v. International Longshoremen's
Ass'n, 447 U.S. 490 (1980) (concerning appropriate focus of work
preservation agreement in longshoring industry under National Labor
Relations Act).

'® The expansion effected by the 1972 amendments is particularly
telling for purposes of this case because it targeted not only inade-
quate state compensation systems, but tort liability remedies as well.
Congress made the decision to expand its federal workers’ compensa-
tion system after giving “the most careful consideration” to a report
prepared by the National Commission on State Workmen's Compen-
sation Laws. H.R. Rep. No. 1441, supra,at 2; S. Rep. No. 1125,
supra, at 2; see Report of the National Commission on State
Workmen's Compensation Laws, (Washington D.C., July 31, 1972)
{hereafter Report on Comp. Laws]. The report compared state com-

15

2. In 1984, Congress further amended the status provi-
sion.'' Both the specifics of the change and the reasoning
behind it confirm that the landward scope of the status
provision should be defined broadly to include employees
like respondents.

First, Congress addressed the status of certain limited
categories of employees more tenuously connected to
maritime work than those involved here, but who had
been considered by the courts to be covered by the Act.
Specifically, it removed from coverage “individuals
employed exclusively to perform office clerical,
secretarial, security, or data processing work”; those
working for a club, restaurant, museum, or other recrea-
tional or retail establishment; those employed by a marina
(including “routine maintenance” workers, but not con-

pensation systems to those providing remedies through actions for
negligence. It found that a modern workers’ compensation system
tial protection against interruption of income, and assured provision
of medical services, while “[e})mployees excluded from coverage are
forced to fall back on liability suits, a drawn-out, costly, and uncer-
tain process that was dismissed long-ago as a means of dealing with
occupational injuries and diseases.” Report on Comp. Laws 35, 45;
see generally id. at 25, 119-120. Thus, the Commission endorsed as an
ultimate objective “universal mandatory coverage” of workers under
compensation systems. Jd. at 44. And, in order to further that goal,
the Commission recommended, inter alia, “that the term ‘employee’ be
defined as broadly as possible.” Jd. at 48. Congress, in turn, noted
that “the provisions in [the 1972 amendments] are fully consistent with
the recommendation of the National Commission * * * [and the bill]
will provide an adequate, prompt, and equitable system of compensa-
tion.” S. Rep. No. 1125, supra, at 2.

'' The 1984 amendments and their history are directly relevant to
the instant case involving respondent Goode, who was injured on
February 11, 1985. 88-127 Br. in Opp. 7. They are also relevant to the
cases involving respondents MeGloae and Schwalb, insofar as they
clarify the intent of the 1972 amendments. See Red Lion Broadcasting
Co. v. FCC, 395 U.S. 367, 380-381 (1969). See also note 14, infra.

16

struction or repair workers); and employees of vendors,
suppliers, or transporters only temporarily on the premises
of a maritime employer.'? In fashioning these categories,
Congress deliberately declined to remove employees
engaged in “maintenance[] or repair of gear or equipment”
from coverage of the Act: although the bill (S. 1182, 97th
Cong., Ist Sess. (1981)) that became the basis for the 1984
amendment contained such an exclusion, the idea died in
committee. Compare S. 1182 as introduced, 127 Cong.
Rec. 9829 (1981), with S. Rep. No. 498, 97th Cong., 2d
Sess. 2 (1982).'?

Further, Congress made clear that even the exclusions it
delineated “are intended to be narrowly construed.” H.R.
Rep. No. 570, 98th Cong., Ist Sess. 5 (1983). And, it pro-
vided that workers within the named categories are ex-
cluded only if they are eligible for state workers’ compen-
sation programs. 33 U.S.C. 902(3) (Supp. IV 1986).'*

'2 Congress also exempted from the Act aquaculture workers and,
for unrelated reasons, employees building, repairing, or dismantling
small, recreational vessels. See H.R. Rep. No. 570, 98th Cong., Ist
Sess. 6 (1983); S. Rep. No. 81, 98th Cong., Ist Sess. 26-28 (1983).

'? The proposed bill also contained an exclusion for “railcar loading
and unloading.” 127 Cong. Rec. 9829 (1981). The exclusion sumilarly
did not leave committee. See. S. Rep. No. 498, 97th Cong., 2d Sess. 2
(1982).

'* While emphasizing the limited nature of the new exclusions, Con-
gress simultaneously was at pains to disclaim that its exclusions im-
plied coverage (or noncoverage) for other groups. Although the Con-
ference Report Joes not repeat the refrain, the Senate Report em-
phasizes that:

It is the committee’s intention that these amendments not be in-
terpreted to enlarge the present scope of the act's coverage. * * *
[I}t ts obvious that a large body of decisional law relative to tradi-
tional maritime employers and harbor workers remains un-
disturbed. [A] decision not to evaluate, endorse, or reject, ex-
plicitly or implicitly, the lower court and agency decisions in these

17

The reason Congress fashioned the specific exclusion it

other areas was made deliberately by the Committee in conjunc-
tion with the limited changes that are being made.
S. Rep. No. 81, 98th Cong., Ist Sess. 26 (1983); see also, e.g., 129
Cong. Rec. 16255 (1983) (remarks of Sen. Hatch); 130 Cong. Rec.
25,902 (1984) (remarks of Rup. Miller); 130 Cong. Rec. 8325 (1984)
(explanation of House amendment).

While Congress's actions in 1984 must therefore be viewed with
some caution, they indicate at the least that Congress considers the
plain language of the status provision sufficiently broad to include
those written out of the Act in 1984— because their exclusion from
coverage under the status provision becomes effective only if those
same workers are covered under state acts. In the words of the House

under the coverage of the Longshore Act.” H.R. Rep. No. 570, 98th
Cong., ist Sess. 5 (1983) (emphasis added); see also S. Rep. No. 81,
supra, at 18; 130 Cong. Rec. 8324 (1984) (remarks of Rep. Erienborn)
(amendments “carve out” areas); id. at 8325 (explanation of House

employtent).

Moreover, it is relevant that Congress could reach “no political con-
sensus” to disturb the judicial interpretation of the status provision
that had developed by 1984. 130 Cong. Rec. $11,623 (daily ed. Sept.
20, 1984) (remarks of Sen. Hatch). If anything, Congress indicated its
acceptance of “the limits of jurisdiction [that] hajd] begun to emerge
out of the judicial process.” S. Rep. No. 81, supra, at 25; see also 130
Cong. Rec. $11,622 (daily ed. Sept. 20, 1984) (remarks of Sen. Hatch)
(courts’ imerpretation of LHWCA in many instances “in keeping”
with congressional iment although sometimes “clearly owt of
bounds”); Lorillard v. Pons, 434 U.S. 575, 580 (1978). By 1984, the
courts of appeals had consistently interpreted the coverage of the
LHWCA to include maintenance and repair workers who facilitated
the loading process. See note 21, infra (citing cases).

ployees” who, although at work on a covered situs, lack “a
sufficient nexus to maritime navigation and commerce.”
S. Rep. No. 81, 98th Cong., Ist Sess. 25 (1983). Specifi-
cally, Congress determined whether employees had “a suf-
ficient nexus” to things maritime by looking to either “the
nature of the work which they do, or the nature of the
hazards to which they are exposed.” H.R. Rep. No. 570,
supra, at 4.'* In turn, it analyzed the “nature of the work”
done in terms that confirm the broad, functional approach
employed by the federal judiciary since 1972. See, e.g., S.
Rep. No. 81, supra, at 30 (excluding employees temporari-
ly on premises because their duties were “not an integral
part” of traditional maritime employment); 130 Cong.
Rec. 25,903 (1984) (remarks of Rep. Miller) (coverage
focuses on “substance and purpose of the work being per-
formed as integral to overall longshore operations”); cf.
H.R. Rep. No. 570, supra, at 3-4 (employing functional
approach). Congress’s consideration of the “nature of the
hazards” affccting workers additionally supports coverage
of workers facilitating a loading process, because they are
subject to the same harbor-side risks as those actually

handling cargo.'* Cf. H.R. Rep. No. 570, supra, at 3
(noting that clericals confined to office work were ex-

'* See also H.R. Rep. No. 570, supra, at 3; 130 Cong. Rec. 8322
(1984) (remarks of Rep. Miller); 130 Cong. Rec. $11,622 (daily ed.
Sept. 20, 1984) (remarks of Sen. Hatch); 130 Cong. Rec. 25,902 (1984)
(remarks of Rep. Miller).

'* This Court's determination in Herb’s Welding, Inc. v. Gray, 470
U.S. 414, 425 (1985), that the hazards faced by an employee were rele-
vamt only to the situs inquiry, not to the status provision of the Act,
was made on the basis of the language and history of the 1972 amend.
ments alone, and in the context of an employee whose work was
wholly unrelated to the loading and unloading process. See note 27,
infra.

19

In short, both the language of the status provision and
the purposes expressed by Congress in 1972 and 1984 sup-
port an expansive approach to the landward coverage of
the LHWCA, rather than the restrictive standard applied
by the Supreme Court of Virginia. :

B. The State Court's Standard Conflicts With The Principles
Ot Coverage Enunciated By This Court Aad Followed By
The Lower Federal Courts Aad The Benefits Review Board

1. In Northeast Marine Terminal Co. v. Caputo,
supra, this Court first determined the reach of LHWCA
coverage under the status provision of the 1972 amend-
ments. The case involved two employees, a “checker” (the
worker responsible for checking and recording cargo as it
is loaded or unloaded) and a longshoreman who at the
time of injury was working as a “terminal laborer” helping

to load already-discharyed cargo into consignees’ trucks.

'’ Congress also acted in 1984 for a simpler end: it sought to stem
the litigation generated by the 1972 status provision. S$. Rep. No. 81,
supra, at 24-25. Several members of Congress indicated their belief
that the litigation had been generated by the imprecision of the defini-
tion of covered employees. See, ¢.g., 130 Cong. Rec. 8335 (1984)
(remarks of Rep. Boggs); 130 Cong. Rec. $11,622 (daily ed. Sept. 20,
1984) (remarks of Sen. Hatch). Another member indicated that the
litigation had been caused by “the failure [of courts] to recognize that
covered longshoring workers “have traditionally engaged in a full
range of activities respecting the handling of ocean cargo” and had job
tasks (including, for example, the use of computers) that reflected the
advent of modern technology. See 130 Cong. Rec. 25,903 (1984)
(remarks of Rep. Miller). In either case, Congress's purpose to
minimize litigation must enter the calculus of the Act's interpretation.
That purpose will be most effectively served by a bright line definition
that clearly protects all activity on the waterfront that is “integral to
overall longshore operations.” /bid.

After reviewing the history of the LHWCA with attention
to Congress’s continued efforts to provide uniform
coverage to “amphibious” workers (432 U.S. at 257, 271),
the Court concluded that the Act's status provision should
be broadly interpreted. The Court held that the “checker”
satisfied the status requirement because, although his
longshoring tasks had been somewhat changed by
technology (the employee was checking the contents of a
container on shore on the day of the accident), his work
was “an integral part of the unloading process as altered
by the advent of containerization.” Jd. at 271. The Court
held that the terminal laborer also met the status require-
ment; since he spent some of his time in “indisputably
longshoring operations” (id. at 273), the Act’s “focus on
occupations and its desire for uniformity” supported con-
tinuous coverage under the LHWCA (id. at 276).

The court explicitly rejected restrictions that would have
artificially curtailed its approach. First, it denied that
union membership should determine eligibility as a
“longshoreman” under the Act, noting that “[t}he vagaries
of union jurisdiction are unrelated to the purposes of the
Act.” Northeast Marine Terminal, 432 U.S. at 268 0.30.
Second, the Court rejected a limitation not unlike that
adopted by the Virginia court here. The Court held that
the “point of rest” doctrine—according to which
“stevedoring” was limited to loading or unloading opera-
tions seaward of the first “point of rest” on a pier or dock
from which cargo is moved into vessels or removed for
further transport ashore — was incompatible with the Act's
objective of extending uniform coverage on an occupa-
tional basis. /d. at 275, 276.

This Court confirmed its expansive interpretation of the
landward extension of coverage in P.C. Pfeiffer v. Ford,
supra, where it found coverage for two workers, neither of

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Herb’s Welding, 470 U.S. at 423, 425 (injured worker not
an employee under Section 2(3) because “{hjis work had
nothing to do with the loading or unloading process, nor
{was} there any indication that he was even employed in
the maintenance of equipment used in such tasks”) (em-
phasis added).

Consistently with the rationale of these decisions, the
courts of appeals and the Benefits Review Board'’ uni-

'* Ford was a “warchouseman” injured while fastening military
vehictes (which had been unloaded from a vessel days before) to a
railroad flatcar. U ‘der union rules, he was prohibited from moving
cargo either direct, from a vessel to a point of rest in storage or to a
railroad car, or directly from shoreside point of rest onto a vessel.
Pfeiffer, 444 U.S. a 71. Bryant was a “cotton header” injured while
unloading cotton from its land transport by wagon into a pier
warehouse His loading activities were limited by union rules similar
to those applied to Ford. jd. at 71-72.

'* The Benefits Review Board is charged under section 21(b3) of

the LHWCA, 33 U.S.C. 921(b)(3), with determining “appeals raising
a substantial question of law or faci taken by any party in interest

formly view the question whether employees are engaged
in “longshoring” by focusing on the nexus between a

whose actual duties comprise an “essential element” or “in-
tegral part” of the overall loading and unloading process,
even if those duties do not themselves including physically
or mechanically loading or unloading maritime cargo. The
standard applied by the courts of appeals,*' and by the

from decisions with respect to [benefit) claims of employees.” Since
the Board is not a policymaking agency, its interpretation of the
LHWCA is not entitled to deference for that reason, see Potomac
Elec. Power Co. v. Director, OWCP, 449 U.S. 268, 278 0.18 (1980),

* The courts use the same approach in determining
employees are “harbor-workers.” See, ¢g.. Newport News Ship
building 4 Drydock Co. ¥. Graham, $73 F.2d 167 (4th Cir.), cert.
denied, 439 U.S. 979 (1978).

™ See, ¢.¢.. Hermon v. Baltimore 4 O.R.R., 741 F.2d 1398, 1404
(D.C. Cir. 1984) (railroad worker injured while repairing coal loading
equipment is covered employee because his “functions were an integral
part of the process of unloading and loading vessels and were vital to
the movement of maritime cargo”), Proderized New England Co. v
Miller, G1 Fld 45, 47 (ist Cir. 1982) (worker performing
maintenance of shiploading equipment plays “integral part” in loading
process); See-Land Services, Inc. v. Director, OWCP, 685 F.2d 1121,
1123 (9th Cir. 1982) (LHWCA applies to mechanic responsible for
repairing equipment used to load cargo onto ships and move Ht within
terminal area because “repair and maintenance of equipment

——eE——————=———

23

Board,*? specifically encompasses workers who, like re-

necessary to loading and unloading ships is integral to the process and
is therefore ‘maritime employment’ ”); Hullinghorst Indus., Inc. v.
Carroll, 650 F.2d 750, 755-756 (Sth Cir. 1981) (carpenter building
scaffolding for repairs to loading pier engaged in “maritime employ-
ment,” since “the maintenance and repair of tools, equipment, and
facilities used in indisputably maritime activities lies within the scope
of ‘maritime employment’ ” under the Act and such work is “an in-
tegral part * * *, an essential and indispensable step in the [pier]
repairs to be effected”), cert. denied, 454 U.S. 1163 (1982); Garvey
Grain Co. v. Director, OWCP, 639 F.2d 366, 370 (7th Cir. 1981)
(millwright responsible for maintenance and repair of shiploading
equipment is employee under LHWCA, since these “functions are an
integral part of the loading and unloading” process and “are directly
connected with and are vital to the movement of maritime cargo”);
Prolerized New England Co. v. Benefits Review Bd., 637 F.2d 30, 37
(ist Cir. 1980) (coverage extends to employee whose duties include
shortening scrap steel for shipment because “[vjiewed in terms of this
functional analysis * * * [the claimant's] repair, maintenance and oc-
casional operation of the varied elements of Prolerized’s integrated
loading system qualify as peculiarly maritime services”), cert. denied,
452 U.S. 938 (1981); Price v. Norfolk & W. Ry., 618 F.2d 1059, 1061
(4th Cir. 1980) (railroad worker injured while painting “gallery” used
for loading grain into ships falls within LHWCA's ambit because
“[t}he gallery, and its maintenance, are essential to the loading and
unloading of all vessels”); see also 4 A. Larson, Larson’s Workmen's
Compensation Law §§ 89.45(b), 89.45(e), 89.45(f), 89.49 (1989)
(citing cases).

22 See, e.g., Powell v. International Transp. Services, 18 Ben. Rev.
Bd. Serv. (MB) 82, 84 (1986) (“vessel planning and stowage coor-
dinator” is employee under the LHWCA because his “duties planning
the loading and unloading of cargo,” though clerical, “are integral to
the longshoring process and as such are peculiarly maritime”); Wuellet
v. Scappoose Sand & Gravel Co., 18 Ben. Rev. Bd. Serv. (MB) 108,
110-111 (1986) (welder/mechanic injured while repairing conveyor
belt at barge loading facility is covered under LHWCA since “the
repair of equipment at employer's barge facility is an integral part of
the loading process * * * and therefore is a maritime activity”);
Verderane v. Jacksonville Shipyards, Inc., 20 Ben. Rev. Bd. Serv.

24

spondents, engage in cleaning, maintenance, and repair of
equipment used to load ships.??

2. In holding that respondents were not employees
under the LHWCA, the Supreme Court of Virginia ex-

pressly rejected the courts of appeals’ functional test and
adhered, instead, to its earlier decision in White v. Norfolk
& W. Ry., supra. J.A. 26-27. White limited coverage under

the Act to those employees having a “ ‘realistically signifi-
cant relationship’ to ‘traditional maritime activity involving
navigation and commerce on navigable waters.’” 217 Va.
at 832, 232 S.E.2d at 812 (quoting Weyerhaeuser Co. v.

(MB) 62, 64 (1984) (manager of shipyard’s Medical, Safety and Securi-
ty Department, whose duties required inspecting certain shipbuilding
equipment and assuring compliance with safety regulations, was
covered employee since he “performed an integral role in assuring”
shipyard workers’ safety and his duties “were important to the overall
progress of maritime construction”); Bennett v. Mason Terminals,
Inc., 14 Ben. Rev. Bd. Serv. (MB) 526, 528-529 (1981) (workers refur-
bishing containers satisfy LHWCA’s status requirement as their “work
[is] essential to the continued use of containers and thus is integral to
longshoring operations”; benefits precluded here, however, because
workers were not employed on a covered situs); De Robertis v.
Oceanic Container Serv., Inc., 14 Ben. Rev. Bd. Serv. (MB) 284,
287-288 (1981) (container repairmen, even if “not personally involved
in loading and unloading cargo from ships” are nonetheless covered
employees under the LHWCA, because “they maintained and repaired
equipment used in longshoring operations” and “[t}heir work was an
‘integral part’ of, or ‘necessary ingredient’ in, longshoring operations,”
citing Cabezas v. Oceanic Container Serv., Inc., 11 Ben. Rev. Bd.
Serv. (MB) 279, 285-286 (1979)); see also 4 A. Larson, supra,
§§ 89.45(b), 89.45(e), 89.45(f), 89.49 (citing cases).

2) The treatise writers agree that an expansive approach to coverage
under the Act is appropriate. See 1 M. Norris, The Law of Maritime
Personal Injuries 3rd 128 (Supp. 1988); 4 A. Larson, supra,
§ 89.42(a), at 16-261 (rejecting, in discussion concerning “point of
rest” theory, semantic distinctions excluding from coverage worker
“whose entire function is associated with the movement of goods
within the terminal”).

25

Gilmore, 528 F.2d at 961).24 The White decision makes
clear that the Supreme Court of Virginia views the
“realistically significant relationship” test as requiring
direct involvement in the physical process of loading and
unloading cargo. Thus, although White’s duties required
him to maintain electrical equipment essential to the coal
loading process, the court concluded that he lacked the re-
quisite relationship to the loading of cargo, because he was
“not actually handling any cargo, either manually or
mechanically,” and “was not manipulating * * * any of the
controls of the electrical mechanism, which furnished the
power for this automated loading process.” 217 Va. at
832-833, 232 S.E.2d at 813. Applying White, the court
concluded here that respondents Schwalb and McGlone
were not statutory employees because they also were not
actually “ ‘engaged in the handling of cargo’ ” (J.A. 25),
notwithstanding that failure to clean trash coal from the
rollers and belts would halt the loading process (J.A. 21)
and that only the “vagaries of union jurisdiction” —
specifically, union agreements covering various groups of
workers at the terminal—prohibited Schwalb and
McGlone from placing the coal back on the belts (ibid.).?*
The court applied its narrow approach again when it ruled

** The Supreme Court of Virginia’s continued reliance on Weyer-
haeuser Co. v. Gilmore is misplaced. The Ninth Circuit has made it
clear that it reads Weyerhaeuser’s “realistically significant relation-
ship” language to mean that “repair and maintenance of equipment
necessary to loading and unloading ships is integral to the process and
is therefore ‘maritime employment’ covered by the Act.” Sea-Land
Service, Inc., 685 F.2d at 1123. Thus, the Ninth Circuit applies its
Weyerhaeuser formulation in harmony with authority in the other
federal circuits.

?> But for the union contracts that prohibited them from placing the
trash coal that they had cleared away back on the conveyor belts,
Schwalb and McGlone indubitably would have done so.

26

that respondent Goode was not an employee under the
Act, although Goode’s duties consisted largely of mainte-
nance and repair of machinery and equipment used ex-
clusively for coal loading in a terminal where loading ap-
parently is almost entirely automated (see J.A. 35).?*
The Supreme Court of Virgini@sapparent conclusion
that Northeast Marine Terminal and Pfeiffer established
the outer limits of coverage is inappropriate. As this Court

2¢ Goode makes an unpersuasive argument that the state court's ex-
clusion of him from LHWCA coverage is not at odds with the over-
whelming weight of federal case law because, until the “unloading proc-
ess had been completed, the coal was still in land transportation and
was not ‘a the process of being loaded aboard a ship.” 88-127 Br. in
Opp. 20-21. The circuit court specifically found that “the process of
loading the coal into vessels begins” once the rail cars leave the barney
yard (J.A. 35), and Goode has not even suggested that this finding
should be set aside. Additionally, although the decision of the Fourth
Circuit in Conti v. Norfolk & W. Ry., 566 F.2d 890 (1977) (brakemen
injured at Lambert's Point were not employees under the LHWCA)
supports Goode’s argumeni, we agree with the observation of the Court
of Appeals for the District of Columbia Circuit that the Fourth Circuit
has “moved away from using the distinction between ‘traditional
railroading tasks’ and ‘traditional maritime tasks’ as the sole inquiry, or
the dispositive issue in LHWCA cases.” Harmon, 741 F.2d at 1104
(citing Caldwell v. Ogden Sea Transport, Inc., 618 F.2d 1037, 1050 (4th
Cir. 1980) (Conti cited only for “integral part” language); Price, supra
(drawing no Conti-like distinction between “traditional railroading” as
opposed to “traditional maritime” tasks), and Vogelsang v. Western
Maryland Ry., 670 F.2d 1347, 1348 (4th Cir. 1982) (distinguishing
Conti)). This and other courts have, of course, found railroad workers
covered by the LHWCA despite the parallel coverage of the FELA. See,
e.g., Pennsylvania R.R. v. O'Rourke, 344 U.S. 334 (1953), Harmon,
supra; Vogelsang, supra; Price, supra; cf. Powell v. Cargill, Inc., 444
U.S. 987 (1979) (vacating and remanding for reconsideration in light of
Pfeiffer, supra, \ower court's exclusion from coverage of employee
whose “work was more oriented to the rails than to the sea” (573 F.2d
561, 564 (1978), withdrawn after remand, 625 F.2d 330 (9th Cir. 1980)).
In such circumstances LHWCA coverage is exclusive under 33 U.S.C.
905.

27

has noted, the claimants in those cases were “ ‘engaged in
longshoring operations,’ ” and the Court “had no occasion
* * * to determine other possible applications of the status
test to activities performed on the expanded landward
situs.” Perini, 459 U.S. at 318 n.27. Thus, the Virginia
court read the “essential elements” and “overall

language in Northeast Marine Terminal and Pfeiffer in far
too cramped a manner (J.A. 25-26), giving no effect to the
directive in those cases that the Act’s coverage be viewed
expansively, and making no accommodation for the im-
pact of modern technology on cargo handling techniques,
for the high degree of job specialization, or for the extent
of unionization within the longshore industry.?’

Nor is the line drawn by the Virginia court rendered
more palatable by the fact that it may, in some cir-
cumstances, relegate employees to a tort, rather than a
state workers’ compensation remedy. Congress deliberate-
ly chose to extend federal workers’ compensation because
of the advantages specific to that system. See note 10,
supra; S. Rep. No. 1125, supra, at 2 (noting necessity for
compensation system to ensure employer responsibility for
unsafe conditions in high-risk industry, and consistency of
1972 amendments with recommendations by National
Commission on State Workmen’s Compensation); H.R.
Rep. No. 1441, supra, at 2-3 (similar); see also Nogueira,

*’ To the extent that the state court relied on Herb’s Welding, Inc.
v. Gray, supra, its reliance is misplaced. See J.A. 26. The employment
at issue in that case — off-shore drilling — was not maritime, and the
claimant, a welder on an oil rig, had “nothing to do with the loading
or unioading process” and was not “even employed in the maintenance
of equipment used in such tasks.” 470 U.S. at 425. By contrast, peti-
woners’ terminal operations are uncontestably maritime in nature, and
the respondents plainly were “employed in the maintenance of equip-
ment used to [load and unload cargo].”

281 U.S. at 136 (Congress that enacted LHWCA “distinct-
ly recognized” the importance of the policy of compensa-
tion acts, and their advantages in providing for ap-
propriate compensation in the case of injury or death of
employees without regard to the fault of the employer”);
Pennsylvania R.R. v. O’Rourke, 344 U.S. 334, 337 (1953)
(LHWCA chosen as compensation act instead of em-
ployers’ liability statute so as to bring admiralty law into
harmony “with modern concepts of the duty of an
employer although without fault to carry the burden of in-
dustrial accidents”).?*

2? The advantages offered by a workers’ compensation system, as
opposed to a system of tort liability such as the FELA, have repeated-
ly been recognized by this Court and by others. See, e.g., Parker v.
Motor Boat Sales, 314 U.S. 244, 249 (1941) (discussing congressional
purpose to extend “modern principle of compensation” by cnacting
LHWCA) (quoting S. Rep. No. 973, 69th Cong., ist Sess. 16 (1926));
Urie v. Thompson, 337 U.S. 163, 196-197 (1949) (Frankfurter, J.,
concurring in part) (describing concept of negligence as “antiquated
and uncivilized basis for working out rights and duties for disabilities
and deaths inevitably due to the conduct of modern industry”);
Wilkerson v. McCarthy, 336 U.S. 53, 65 (1949) (Frankfurter, J., con-
curring) (describing concept of negligence in FELA cases as an “out-
moded * * * working principle for the adjustments of injuries in-
evitable under the technological circumstances of modern industry,”
and as a “cruel and wasteful mode” of dealing with injuries that has
“long been displaced in industry generally by the insurance principle
that underlies workmen's compensation laws”); cf. Calbeck, 370 U.S.
at 121-122 (noting, while reviewing disadvantages of jurisdictional
confusion in LHWCA cases, that Act's framers meant “to assure the
existence of a compensation remedy for every * * * injury, without
leaving employees at the mercy of the uncertainty, expense, and delay
of fighting out [results} in litigat.oa”).

Larson notes in his treatise that the FELA, while considered a great
step forward as a method of handling work injuries in 1908, had, by
1912, already begun to receive unfavorable comparison with non-fault
compensation acts beginning to appear in the States. See 4 A. Larson,

29

C. The Department Of Labor's View On The Scope of
LHWCA Coverage Is Entitled To Deference

The Supreme Court of Virginia’s restrictive construction
of landward coverage under the LHWCA also conflicts
with the expansive interpretation of the Section 2(3) status -
requirement that the Department of Labor has consistently
applied since 1972 in administering the LHWCA workers’
compensation program. Under the Department's inter-
pretation, respondents would be considered employees
under Section 2(3) because their work was directiy related
to the equipment used to load cargo. See Office of
Workers’ Compensation Programs, Employment Stand-
ards Admin., U.S. Dep't of Labor, LHWCA Program
Memorandum No. 58, Guidelines for Determination of
Coverage of Claims Under Amended Longshoremen’s Act
8-9 (Aug. 10, 1977) (“Longshoring operations may be
regarded as all operations necessary to the transfer of
cargo between land and water modes of transportation
which are performed by workers associated with that
transfer rather than with the transportation itself. The test
is essentially quite simple: was the injured worker
employed in the waterfront cargo-handling industry, in
work directly related to the cargo or to the equipment or
premises used to handle it? If so, the worker had
‘employee’ status under § 2(3).”): Northeast Marine Ter-
minal, 432 U.S. at 272 (Director's view is that “ ‘[mJaritime

supra, § 91.74, at 16-481; see also id. at § 91.76 (observing that the
debate about the continued vitality of the FELA generally assumes
that the negligence principle is an “anachronism” in the handling of
workplace injuries, but continues because of failure of non-faulk
systems to meet objectives); Report on Comp. Laws 25, 48, 119-120
(criticizing tort liability suits as method of workers’ compensation
because determination of negligence by litigation expensive, leaves
some workers without protection for injury, crowds court dockets,
delays payment, and may deter successful rehabvivation)

30

employment * * * include[s] all physical tasks performed
on the waterfront, and particularly those tasks necessary to
transfer cargo between land and water transportation’ ”).

The Department’s interpretation of the Section 2(3)
status requirement is “based on a permissible construction
of the statute.” Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 843 (1984). Thus, it
is entitled to deference and should be given effect.?*

CONCLUSION

The judgments of the Supreme Court of Virginia should
be reversed.

Respectfully submitted.

WILLIAM C. BRYSON
Acting Solicitor General

DAVID L. SHAPIRO
Deputy Solicitor General
CHRISTINE DESAN HUSSON
Assistant to the Solicitor General
JERRY G. THORN
Acting Solicitor of Labor
ALLEN H. FELDMAN
Associate Solicitor
CHARLES I. HADDEN
Deputy Associate Solicitor

CHRISTINE L. OWENS
Altorney
Department of Labor

APRIL 1989

29 See, e.g., Morrison-Knudsen Constr. Co. v. Director, OWCP,
461 U.S. 624, 635 (1983) (consistent practice of those charged with en-
forcement and interpretation of LHWCA entitled to deference);
Zenith Radio Corp. v. United States, 437 U.S. 443, 450 (1978) (great
deference due interpretation of officers or agency administering
statute); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381 (1969)
(construction of statute by those charged with executing it should be
followed “unless there are compelling indications that it is wrong”).

w U.S. GOVERNMENT PRINTING OFFICE: 1989—241-699/00220

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0234%3A09. Public record. Not legal advice.