Petition for Writ of Certiorari — Calbeck v. Travelers Insurance Co.

Supreme Court brief1962

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Text

INDEA

Paxe

Opimions below. ‘ sane Sy erate 2

Jurisdiction = et +P Raa ee 2

Question presented, ae

Statute involved ie say aT 2

Statement . Soran eee 4

Reasons for granting the writ apa 9

Conclusion 19

Appendix A Lee esa 21

Appendix B ' a 3S

Appendix © 40

CITATIONS

Cases

Arond le Marine Warys LiF Th nile rson, 346 US.

SHG P Sh TS, Ye, i5

Baizlhy Iron M ‘orks v. "Span, O81 U $.228-.- - 12

Baskin v. Industrial Accident ¢ vommission, 338 U.S. 8: 54,

vacating 89 Cal. App. 2d 257, 632, 201 P. 2d 549;

on remand, 97 Cal. App. 2d, 217 P. 2d 733, affirmed

eub nom. Kaiser Co. v. Baskin, 340 U.S. 886. - - - - -- 12

Bethlehem Steel Co. v. Moores, 335 U.S. 874, affirming

Afoores’s Case, 323 Mass. 162, 8O N. E. 7 i vf. ee 12

Daris v. Department of Labor, 317 US. 249 ----g-- 10,

1, 12, 14, 16

Dirie Sand & Gravel ¢ or poration v. Holland, 255 F. 2d

404 EE BN 2 BOF Pepe Ee hac aa ae

Grant Smith-Porter Shiv Co. v. Rohde, 257 U.S. 469.- 8,9, 14

Great Lakes Dredge & Dock Co. v. Kieregewski, 261

ye ei a ee eee Aa Yee tet cara ein ae 12

Hahn v. Ross Island Sand é Gravel (o., 358 U.S. 272- 14

Industrial Commission v. Nordenholt, 259 U.S. 263... 14

Kelly v. Summers, 210 F. 2d 665... ----.---------- 6

Morrison-Knudsen Co. v. O'Leary, 288 F. 2d 542,

certioran’ denied, October 9, 1961, No. 99, this

‘eee 2 Ee 15

Newport News Shipbuil ding & Dry Dock Co. v.

on eerae 192 F. 2d 968 : ees |e

618227 — 61-—-1 ip @)

(‘ases——Cont inued

Parker v. Motor Boat Sales, 314 U.S. 244. ~2.

Pennsylvania Railroad Co. ¥. O Rourke, 34S, 334

Travelers Insurance Co. v. MeManigal, 139 F. 2d 949

United States Casualty Co. v. Taylor, 64 F. 2d 521, cer-

tiorart denied, 290 US. 639. _- et eee Ste

Voris v. Eikel, 346 US. 328. —___-.

Statutes:

Longshoremen’s and Harbor Workers’ Compensation

Act, 38 U.S.C. 901, et seq.:

Section 902__._.-.

Section 903 : .

Section 903 (a)

Section G04

Section GO6(b)

Section GOSia)

Section 909

Section G20

Section G20 (a)

ve Fo.

Section 23 1202

Section 23:1221

Texas Workmen's Compensation Law

V.RCS., Art. 8306, § 8

Miscellaneous:

Comment, Orerlapping Remedies for Injured Harbor-

workers: Interaction on the Waterfront, 67 Yale Ld

1205

Employment and Eavninge, Bureau of Labor Statistics,

Department of Labor (July, 1961 issue

H. Rep. No. 1767, 69th Cong., 2d Sess ~

H. Rep. No. 2287, 85th Conv., 2d Sess_____.-

2 Larson, Workmen's Compensation __. sees

er eae Workmen's Compensation for Moritine Em-

ployees: Obscurity in the siaspalh Zone, tS Harv. L

Rev. 637 eR ob Re Be OE ei a ad eh Sore

S. Rep. No. 973, 69th Cong., Ist Sess

Page

-15

12,

13,

15,

Sn sow

In the Supreme Court of the United States

OcToBER TERM, 1961

No, ——

C. D. Catseck, Deputy COMMISSIONER, BUREAU OF

I’ MPLOYEES’ COMPENSATION, UNITED STaTes DEPART-

MENT OF LABOR, PETITIONER

THE TRAVELERS Insurance Co. AND LEVINGSTON

SHIPBUILDING Co. ‘

P. J. Donovayx, Deputy COMMISSIONER, BUREAU OF

I] MPLOYEES’ COMPENSATION, UNITED STATES Deparrt-

MENT OF LABOR, PETITIONER

AVONDALE SHIPYARDS, Ive.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

The Solicitor General, on behalf of Deputy Com-

missioner C. D. Calbeck and Deputy Commissioner

P. J. Donovan, petitions for a writ of certiorari to

review the judgments of the United States Court of

Appeals for the Fifth Circuit entered in these cases

on July 13, 1961.

(1)

OPINIONS BELOW

Phe opinion of the district court om the Travelers

Jusutance case has ret vet brevet reported, The dis

triet court rendered te opinion in the Arowdale cease.

The options of the court of appeals in the cases

Ayop. NAN and B, mitra, py. PU) ee reported at 245

Bd 2 and OL, respectively,

JURISDICTION

The judgments of the court of appeals were en-

tered on July 13, 1961 CApp. Cy aetra, pp. 40-41). Dy

order dated October 5, 1961, Mr. Justice Black ex-

tended the time for filing a petition for a writ of

certiorart te and imeluding November 3, 1961. The

jurisdiction of this Court is inveked under 28 U.S.C.

Ieo4( 1).

QUESTION PRESENTED

Whether injuries sustained by an employee while

working ona vessel under construction that was afloat

upon navigable waters are excluded from the coverage

of the Longshoremen’s and Harbor Workers’ Compen-

sation Act because recovery for such injuries may be

had under a State workmen's compensation law.

STATUTE <NVOLVED

The Longshoremen’s and Harbor Workers’ Compen-

sation Act, as amended, 33 U.S.C. 901, et seq., provides

in pertinent part:

§ 902. DEFINITIONS.

When is om this echapter—

”

(2) The term “injury? means accidental in-

Jury or death arising out of and in the cCOUrSe

ofeinplovinent, * * *,

7 * * * *

(4) The term “employer means an emplover

any of whose employees are employed in mari-

time employment, in whole or in part, upon

the navigable waters of the United States (in-

cluding any dry dock).

* * * * *

§ 903. Coverade.

(a) Compensation shall be payable under this

chapter in respect of disability or death of an

employee, but only if the disability or death

results from an injury occurring lipon the navi-

gable waters of the United States” (ineluding

any dry dock ) and if recovery for the disability

or death through workmen's compensation pro-

ceedings may not validly be provided by State

muy. 7-F

* 7. * * *

6904. Liabiniry ror COMPENSATION.

(4) Every employer shall he liable for and

shall seeure the payment to his employees of

the compensation payable under sections 907—

WIM of this title, * * *

7 * * * *

S920. Prese mprions,

In any proceeding for the enforeement of

a claim fer compensation under this chapter it

shall be presumed, in the absence of substantial

evidence to the contrary—

(a) That the claim comes within the provi-

sions of this chapter,

o * * * *

STATEMENT

These cases involve the application of the Long-

shoremen’s and Harbor: Workers’ Compensation Act

(“the Longshoremen’s Act’’) to injuries sustained by

employees while working on vessels under construe-

tion that are afloat on navigable waters. The basie

facts in each case were found by the Deputy Com-

missioner and-are not in dispute.

l. (a) The Travelers Insurance case. The em-

plover owns and operates a shipyard on the Sabine

River, between Orange, Texas, and Calcasieu Parish,

Louisiana, at which it constructs new vessels and re-

pairs completed vessels. Its employees work on both

kinds of vessels, and it is usual for an employee to

work on a repair project one day, and upon new con-

struction the next (R. 24, 39-42).’. The employer had

numerous employees engaged in traditional maritime

employment upon navigable waters (Rt. 15, 40-41).

Roger McGuyer was a welder employed by the em-

plover at an average wage of $81 a week. On July

8, 1957, he was working upon an oil drilling barge

which was in process of construction. The barge was

afloat on the navigable waters of the Sabine River in

Lofisiana (RD 14-15). The barge had been launched,

and the superstructure was being built. While Me-

Guyer was welding on the port side of the deck, a

tank exploded about 40 feet away, throwing a bucket

through the air which struck him and caused severe

head injuries. On July 16, 1957, he died from a

* References are to the printed record in the court of appeals

in each case.

cerebral concussion which resulted from those injuries,

He was survived by his wife and two children (R.

14-16).

(b) The Avondale Shipyards case. The employer,

which is qualified as a self insurer Minder the Act,

operates two shipyards near New Orleans, Louisiana,

where it builds and repairs vessels. At its Avondale

yard, the greater part of the work consists of fabriea-

tion of machinery and structural steel and the con-

struction of new vessels, but repair work on completed

vessels, which is the principal work at its second yard,

is also performed there. The employer has numerous

employees at both plants who are engaged in tradi-

tional maritime employment (repair work) upon navi-

gable waters (R. 48-49).

Minus Aizen was a 25 year old tack welder employed

at the Avondale yard at an average weekly wage of

$89.32 (R. 38, 49,51). On August 11, 1956, he was en-

gaged in work upon a drilling barge intended for use

in offshore oil operations. The barge had been

launched and was floating on the Mississippi River

but had not been completed (R. 49-50). When he

was placing an eye-lug welded to pipe in proper place

with a “come-along’’, the latter broke and caused a

piece of steel to hit him on the head, knocking him off

the scaffold onto the barge below and then into the

river (R. 33, 38, 50). He suffered a fractured skull,

brain damage, a fractured right forearm, broken left

wrist, arm, and hip, and body contusions (R. 33, 39).

As a result of these injuries, which arose out of and

in the course of his employment, Aizen suffered total

and permanent disability (R. 50-51).

2. The Texas Workmen's Compensation Law could

probably have been applied to Roger MeGuyer’s death,

even though the injury occurred within Louisiana’ It

provides that the maximum compensation for death 1s

£35 a week fora period of 360 weeks, or a gross amount

of $12,600.) VLRLCLIS., Art. 8306, 68. The Longshore-

men's Act, however, provides maximum benefits for an

employee's death of $54 a week during widowhood and

dependency. Under that Act, Mrs. MeGuyer and her

children would receive $52.65 a week as long as the ehil-

dren were under 18, and Mrs. MeGuyer would receive

$28.35 thereafter during widowhood. 33 U.S.C. 909.

Based upon standard mortality tables, the gross

amount due for MeGuyer’s death under the Long-

shoremen’s Act would be approximately $77,500 °—

six times more than the sum recoverable under the

Texas Workmen’s Compensation Law.

The maximum payment for total disability for

Minus Aizen under the [puisiana Workmen’s Com-

pensation Aet would be #55 a week, for a period of

400 weeks, or a gross amount of $14,000.) La. RS.

23: 1202 and 1221. Under the Longshoremen’s Act,

however, he was entitled to $54 a week fer life. 33

U.S.C. 906(b) and 908(a). Based on a life expect-

aney of 40 vears, he could expect to receive a gross

amount ef S112520 under federal coverage, plus

medical expenses—at least eight times the payments

under the Louisiana law.

Mrs. MeGuyer and Aizen both elected to seek

compensation under the Longshoremen’s Act by filing

? See Kelley vo Summers, 210 F. 2d 665, 673 (CLA. 19).

‘Brief for Appellees MeGuyer, in the court of appeals, p. 6.

claims for benetits thereunder. In each case the em-

plover had actual knowledge of the injury and the

employer (Cor ansuranee carrier) had attempted

(prior te the filing of the claim) to pay compensa-

tron due under the applicable state law.’ In each

ease, after a full hearing, the Deputy Commissioner

found the facts set forth above and made an award

of compensation under the Longshoremen’s Act2 In

each case the employer sougat judicial review, and

in each case the district court upheld the award.

The Court of Appeals for the Fifth Cireuit re-

versed in both cases. In the principal opinion (in

‘In the Zreredirs Tnerrance ease the insurance carrier ae-

tually paid MeGuyer’s widow and children $153.57, purportedly

under the Texas Workmen's Compensation Act (R. 16). In

the Avondale case, the empioyer paid Aizen S35 a week for

ist) weeks with cheeks which indicated that they represented

payment under the Louisiana Workmen's Compensation Act,

plus medical expenses, and also paid him approximately 83800

by cheeks marked “advance on compensation” CR. 7,51).

2 In the Tretclers Tnserance ease, Deputy Commissioner

Calbeck originally denied the claim of Mrs. MeGuyer and. her

children for death benefits on the ground that work on un-

completed vessels is “not within the coverage of the Act.

When the claimants brought suit to review the denial of

the claim in the Zravelers case, Deputy Cominissioner Calbeck,

after various procedural motions, filed an answer on January

11, 1960, admitting the allegations and asking that the case

be remanded. In the meantime, Deputy Commissioner Dono-

van had made an award to the claimant in Arondu/e on Jan-

wary 27, 160 (R. 51-53). On April 20, 1960, the district court

remanded the 7 rreelers case, and Deputy Commissioner Calbeck

thereafter entered an award under the Longshoremen’s Act in

favor of Mrs. MeGuyer and her children. (Civil Action Ne. 7507,

W.D. La.).

G1S227- 41

the Tirave lens Fusurance ease ), it held { prer Judge

brown) that although longshoremen Working on a

slap and reparrmen working on a completed vessel

are covered by the Loneshoremen’s Act, “persons

working on oan uncompleted vessel afloat but ander

construction” are covered only hy state workmen's

compensation laws CApp. A, fafra, p. 36). The

court noted (/4., pp. 24-25) that Section 905(a) of the

Loneshoremen’s Net (supra, yp. 3) provides that

compensation thereunder ‘shail be payable * * *

only aif * * * reeovery for the disability or death

through workmen's compensation proceedings may

not Validly be provided by State law.” It) stated,

(ad., po 20) that, five vears before the enactment of

the Longshoremen’s Act in 1927, this Court, in Grant

Smith Porter Ship Company VN. Rohde, 257 U.S.

fo, held that a State “could provide workmen's com-

pensation to a person injured while working on an

uncompleted vessel then under construction and afloat

In navigable waters"; and that ‘the line which the

Court drew in the pre-L927 days” betweey “uncom-

pleted construction versus repair of a completed ves-

sel twas the tine which Congress adopted = in

$903(a) * * *”* CApp. A, pp. 25-26; see id., p30).

In that section Congress adopted” the “‘categorical

pre-1927 holding * * * that injvfries on an uncom-

pleted vessel afloat but still under construction pray,

in the words of the sfatute, be ‘validly * * * previded

by state law’ " Crd,, p. 34.

REASONS FOR GRANTING THE WRIT

The court of appeals in these cases has announced

the rule that employees injured while working on

Vessels under construction which are atloat on

navigable, waters are not covered by the Longstore-

nien’s Act) This ruling is contrary to the standards

Which this Court has applied iv determining the

coverage of the Longshoremen’s Act: it) contlicts in

principle with the decisions of three other circuits:

and it presents an important question in the admin-

istration of the Longshoremen’s Act which atfects

many thousands of shipyard workers,

1. A literal reading of the Aet would appear to

support the decision below. Section ata) (33 USS.

9OS(a) Csupra, p.3) provides that compensation shall

he payahle under the Act only (1) if the disability or

death results from an injury occurring upon the navi-

gable waters of the United States (including any dry

dock), and (2) ‘if recovery for the disability or death

through workmen's compensation proceedings may not

validly be provided by State law.” In 1922 this Court

held that the Oregon workmen's compensation statute,

Which provided the exclusive remedy for injuries suf

fered within the State, could be constitutionally ap-

plied to injuries sustained by a workman on a vesse!

in process of construction which was on navigable

waters within the State. Grant Smith-Porter Ship

Co. Vv. Rohde, 257 U.S. 469. Thus, if the Rhode case

stands for the broad proposition that a State com-

peysation law may apply to injuries sustained while

working on new construCtion on navigable waters (as

the court below held), and if recovery under the

Longshoremen’s Actos barred Whenever a State Wwork-

tnen’s compensation law may validly cover the mjury,

the court below correctty, held that the Net does not

apply to the injuries suffered in these cases while the

ehiplovees were performing construction work Upon

new vessels atloat upon navigable waters,

Ina series of eases, however, this Court has im

pheitly rejected this literal reading of the Act, and

has indicated its applicability to injuries occurring

Upon navigable waters even though they may also be

compensable under State compensation laws. In Dav-

is Vv. De partment of Labor, 317 US. 249, 256, the

Court, in holding that a State could apply its com-

pensation law to the death of a constrietion company

employes who was killed while working on a barge on

anavigable river, recognized that there is a “twilight

gone" in Whieh reeovery for injuries cecurring Upon

navigable waters may, at the election of the lnijured

eiiplovee, be hed under either federal or State law.

The Court stated (pp. 255-256) that since “the line

separating the scope of federal and State jurisdie-

ton was “tundetined and undetinable with exact pre-

elsion, marginal employment may, by reason of par-

henlar facts, fall on either side’: and that

** * we must give great—indeed, presump-

tive—weight to the conclusions of the appropri-

ate federal autherities and to the state statutes

themselves. Where there has been a hearing

by the federal administrative ageney entrusted

with broad powers of investigation, faet find-

Ing, determination, and award, our task proves

easy. Phere, we are aided by the provision of

the federal aet. 33 ome Me » 920, which provides

that, in proceedings under that act, jurisdiction

“presumed, in the absence of substan-

tink evidence to the contrary.” Faet. findings

of the agency, where supported by the evidence,

are made final Their conclusion that a case

Talis within the federal Jurisdiction is there-

fore entitled to great Weight and will be re-

Jeeted only in eases of apparent error, * * *

IX fo tee

Mr. Justice Frankfurter, in’ a cONCUITINE opinion,

stated (p. 259) that “the practical result’’ of the

Court’s practice was that “the employee in a situa-

thon like the present aS permitted to reeover either

under the federal aet * * * op under a state stat-

ck Chief Justice Stone, dissenting,

similarly recognized that the Court had enuneiated

the doctrine “that recovery under cither the state

or the federal aet is to he sustained if the case is

thought a close one” (}. 201), and he criticized the

“proposition that an employee in a ‘twilight zone’

(Where it is doubtful whether the federal or a state

act apples) can recover under either act * * *" (p.

262). |

Following the Davis case, this Court twice held,

per curiam, that State compensation laws cover in-

Juries incurred by employees while repairing exist-

ing vessels on navigable waters, even though prior

to the Longshoremen's Act it had held that recovery

for such injuries could be had only under federal

maritime law, and not under State compensation

laws. Bethlehem Steel Co. ve Moore é, 335 U.S, 874,

aftirming 323 Mass. 162, SO N.E. 2d 478; Baskin v.

Industrial Accident Commission, 338 ULS. So4, va-

eating the judgment in 89 Cal. App. 2d 632, 201 P.

Pd 549, and remanding for reconsideration ino the

heat of the Moores case, supra.

In Avondale Marine Ways We Henderson, 346 U.S.

366, the Court upheld the applicability of the Long-

shoremen’s Act to an injury that occurred on land.

An employee was killed while working approximately

400 feet from the water, on a barge that had beer

drawn out of the water on a marine railway. The em-

plover argued that since the injury eecurred on land,

the State compensation law could validly apply and

that the federal Aet was therefore inapplicable. Brief

for petitioner, No. 44, October Term. 1953, })}). re o 0%

This Court, however, affirmed per ceri, the award

under the federal statute, citing the Darrs, Moores and

Baskin cases, spree

—— ™

®* Raizley Tron, Works vi Spon, 251 US. 222: Great Lakes

Dredae ct Dore Ae o>. hie re I rewhes, Y61 TLS. 470.

Following the remand, the California court ordered the

State Industrial Accident Conimission to take jurisdiction of

the claim under the State compensation law (97 Cal. App.

Yd vat, 2IT PL gd 733). and this Court affirmed that) order.

Naiser Company Vv. Basking 340 U.S. 886,

“In Pennsylvania Railroad Co. v. O Rourke, 344 U.S. 554, a

freight brakeman was injured while releasing a brake on a

railroad freight car that was located on a car float on navigable

waters. The question was whether the Longshoremen’s Act or

the Federal Employers’ Liability Act applied. In holding that

the injuries were compensable exclusively under the Longshore-

men’s Act, this Court first stated (p. 537) that “New Jersey

could not have enacted statutes granting compensation for re-

eer injury on navigable water. Therefore respondent

The Present cases, in which the Injuries occurred

pen navigable waters, are obviously stronger cases

for the appleability of the federal statute than the

Avendale Marine Ways case where, although the em-

plovee Was injured wlule working on a barge, the

actual aceident occurred’on land. In both Avondale

Marine Ways and the present cases, State law might

validly provide compensation for the injuries. The

decision in Avondale Marine Ways upholding the

applicability of the federal Act necessarily means that

coverage under that Act is not) foreclosed merely

because the employee could also be covered by State

law.

comes within the coverage of that portion of §903(a) that in-

cludes those outside the reach of state compensation laws.” The

Court then ruled (p. 559) that the fect that the employee's

duties were conimonty regarded as “railroading” rather than

those of longshoremen “miusses the mark. The statute applies,

*by its own terms, to accidents on navigable waters when the em-

ployer has any employees engaged in maritime service.” The

Court stated (p. 540) that the exclusive coverage of the Long-

shoremen’s Act “extends to an employee of an ciaployer, made

liable by $94, when he is injured, in the course of his employ-

tient, on navigable water, The ¢ ourt of Appeals, We think, Is

inerror in holding that the statute requires, as te the employee,

both injury on navigable water and maritime employment as a

ground for coverage by the Compensation Act.”

The Court thus held that. regardless of the nature of the

individual employee's activity at the time of the accident, the

Longshoremen's Act apphed if the injury occurred upon navi-

gable waters, The Court's reference to “that portion of § 905

» (a) that includes those outside the reach of state compensation

laws” does not indicate that, if the injury is within the reach of

such laws, the Longshoremen’s Act cannot apply. Moreover, to

whatever extent it may so indicate, this statement appears con-

trary to the Avondale Marine Ways case, supra. decided the next

Term after ORourke.

The court of appeals in the present cases attempted

to distinguish Avondale Marine Ways on the ground

that here there was “the categorical pre-1927 helding

In Grant Smith-Porter Ship Co, ve Rohde, 257 U.S.

469, that a State may validly provide competisation

for Injuries sustained while working on urfeompleted

construction upon navigable waters (App. A. mfra, pp.

33-34). There was, however, an equally “categorical

pre-1927 holding” that acState may provide conipen-

sation for injuries sustained while performing mar

the werk upon land — the precise situation which this

Court held in Aeowdeale Martie Was was covered by

the federal Net. Tadustival Commission Vv. Nordenkolt,

259 ELS. 263.

In short, the teaching of the line of cases starting

with Daris is that, in the “‘twittght zone” in whieh

Injures occurring dpen navigable waters mav also be

compensable under State law, the emplovee has an

election to seek redress under either federal or State

law. See Haha ve Ross Island Sand & Gravel Ca., 358

US. 272, 273. The court below, by denving the erm

plovees the right to federal coverage in the present

“twilight zone’ cases, has thus failed to follow the

controlling decisions of this Court. Here, the em-

plovees elected to proceed under the federal law, and,

as this Court stated in Davis (317 U.S. at 256-257).

the conclusion of the deputy commissioner “that a

ease falls within the federal jurisdiction is therefore

entitled to great weight and wii! be rejeeted only in

cases of apparent error.” See Parker v. Motor Boat

Sales Co., 314 U.S. 244," and the Avondale Marine

Ways case, supre.

2. The decisions below, whieh hold that the Long-

shoremen’s Act is not applicable to injuries oecurring

upon navigable waters for which State compensation

laws may validly provide recovery, contliet. in prin-

ciple with the decisions of three circuits which have

upheld the coverage of the federal Act for accidents

subject to State compegsation laws. The Fourth Cir-

cult has sustained the applicability of the federal Act

to injuries suffered by workers while engaged in the

construction of a dry dock. Travelers Insurance Co,

V. MeManigal, 139 F. 2d G4: see, also, Ne wport News

Shipbulding & Dry Dock Co. v. O' Hearne, 192 F.2d

YOs, The Ninth Cireuit has held the federal Aet ap-

plicable to injuries sustained while working upon navi-

gable Waters by emplovees constructing a dam on a

river. Morrison-Knudsen Co. v. O'Leary, 288 BF. 2d

O42, certiorart demed, October 9 L96L ONo. 99, this

Perm). Under the rationale of the court of appeals in

the present cases, however, none of these mjunes would

De covered hy the Longshoremen’s Aet,

In Dirie Sand & Gravel Corporation v. Holland, 255

F.2d 304, the Sixth Cireuit held that the Longshore-

men’s Act applied to the deatlaof a clean-up man in

a sand and gravel vard located on the bank of a

“In Parker v. Motor Boat Sales, 314 U.S. 244, this Court sus-

tained an award of compensation under the Longshoremen’s

Act for injuries sustained by a janitor or porter suffered on

navigable waters while testing an outboard motor for his em-

plover, a local boat dealer.

618227—61—— 38

navigable river, which occurred when he fell off a

barge while inspecting it. The court ruled (p. 307)

that since the death occurred upon navigable waters,

‘his widow was entitled to compensativn under the Act

if his death arose out of awd in the course of his employ-

ment, Whether or not he was engaged in “maritime em-

ployment.’ "See also Pennsylvania Railfoad Ce, V.

O'Rourke, 344 US. 334, supra, pp. 12-135, footnote 8.

The ruling in Dirte Sand that the Longshoremen’s Aet

applies im such cireumstar ‘es is Incensistent with the

view of the court of appeals in the present cases that,

even though those circumstances are present, the Act

does not apply if compensation may be available under

State law.

2 Bor these reasons, we believe that the decisions

‘of this Court and of other courts of appeals fully

sustam the rulings by two deputy commiusstoners, Up-

held by two different district courts. But in any

event, the question whether injuries sustained by em-

ployees while working on new construction afloat on

navigable waters are covered by the federal Act ts

one that this Court sheuld deeide. Other than the

decisions below, we have found neo cases since Daves

which have disallowed an election by employees in-

jured while working on navigable waters to seek com-

pensation under the Longshoremen’s Act.” Simi-

shoremen’s Act does not cover imjuries sustained by an em-

plovee working of new construction afloat on navigable waters.

I nited States Casualty C0. \. Taylor, 64 F. 2d 521, certiorari

denied, voo TUS. 690. As the court of appeals noted in these

cuses, howes er, the i a7, hat case is "ne longer followed” by the

* .

larly, commentators have agreed that federal cover-

age is not to be denied merely because the injury

might also be compensable under State law.’ The

decisions of the court of appeals in these cases will

inevitably create doubt and uncertainty im an im-

portant area of federal taw that has hitherto been

considered settled. fe

The decisions below would lead to anomalous re-

‘sults. For example, a shipyard employee would not

Loe covered by the federal statute if he were working

ona new ship, but woitld be covered if he momentarily

happened to mate ever to work on an existing ship

which was neXt to the new one.’ There is nothing in

the Janguagé or the legislative history of the Long-

shoremen’s Act which indicates that Congress intended

to produce such inconsistencies," or that it intended

Fourth Cireuit (App. Ay infra. pp. 38. m. 20). See the WeManigal

and (7 //earn cases, muprt ap. La.

Rodes, Ww ork flint ‘i ( (Ht pet sae ation for Mar, Sime Employees:

Ohseurity in the Toctlight Zone. 6 Harv. L. Rev. 657, 644; Com-

ment, Orerlapping Remedies for Injured Havhorwarke rei Inter-

action on the Waterfront, 67 Yale L. J. 1205.

Roger Metiuyer, the deceased eniployee in the 7 ravelere

Ins. Co. case, was a welder. It was the practiee in his ship-

yard for welders to do repair work or completed vessels on one

day and work on new vessels on the next (R. 4l- 42).

“On the contrary, the legislative history is fully consistent

with the view that Congress merely intended to apply the tra-

ditional line of demarcation between state and federal maritime

jurisdiction, namely, that injuries upon navigable waters (in-

cluding dry docks) would be compensable under the federal Act,

and injuries on land would be compensable under State com-

pensation legislation. See S. Rep. No. 973, 69th Cong., Ist

Sess. p. 16; H. Rep. No. 1767, 69th. Cong., 2d Sess., p. 19.

Indeed a report accompanying the most recent Congressional

amendment to the Act indicates that this was mer" intent of

Congress. H. Rep. No. 2287, 85th Cong., 2d Sess., p. 2

federal coverage to depend on whether, prior to the

Act, this Court had considered the applicability of

State compensation laws to the particular maritime

employment involved. As this Court has pointed out,

the Longshoremen’s Act “must be liberally construed

in conformance with its purpose, and in a way which

avoids harsh and incongruous results’” ( Voris V. Etkel,

346 U.S. 328, 333).

The question of the compensation coverage of work-

ers engaged in the construction of new vessels upon

navigable waters is important and recurring. There

are approximately 120,900 employees of private ship-

vards in the United States, of which 18,400 are in the

Gulf Region (which includes Florida, Alabama, Missis-

sippi, Louisiana, and Texas, but not Georgia). See p.

17 of the July, 1961 issue, Employment and Earnings,

Bureau of Labor Statistics, Department of Labor. Be-

cause most of the shipyards perform both construction

and repair work, no statisties are available on the

number of employees engaged in construction of new

vessels, and that number probably varies from day to

day. However, the number engaged in construction

work undoubtedly constitutes a large proportion of

the 120,900 employees, and a substantial number of

those who are engaged in construction of new vessels

work upon navigable waters. Disparities between the

amount of compensation provided under the Long-

shoremen’s Act and the smaller amounts provided

under State law, similar to those here involved (see

supra, pp. 6-7), are common, particularly in cases where

the injury results in death or total disability of the *

employee."* Thus the question presented here vitally

affects important rights of many thousands of

employees.

CONCLUSION

It is respectfully submitted that this petition for a

writ of eertiorari should be granted.

ARCHIBALD Cox,

Solicitor General.

Wititiam H. Orrick,-Jr.,

Assistant Attorney General.

Morton HOLLANDER, »®

Davin L. Rose,

Attorneys.

NOVEMBER 1960.

*2 Larson, Workmen's Compensation, Appendix B, Table 8,

pp. 524-525, and Table 15, pp. 548-49.

APPENDIX A

In the United States Court of Appeals for the Fifth

Circuit

No. 18802

Tue TRAVFLERS INSURANCE COMPANY AND LEVINGSTON

SHIPBUILDING COMPANY, APPELLANTS

C. D. CaLspeck, Deruty CoMMIsSIONER, E1iautH Com-

PENSATION DisTRICT FOR THE BUREAU OF EMPLOYEES’

CoMPENSATION, U.S. DEPARTMENT OF LABOR, ET AL.,

APPELLEES

Appeal from the United States District Court for the Western District of

Louisiana.

(July 13, 1961)

Before CAMERON, Brown and Wispom, Circuit

Judges. 4

Brown, Circuit Judge: We have again the old, old

contest: is the claim for injuries to an amphibious

worker under the State Compensation Act? Or 1s it

under the Federal Act?’ Phrasing it differently, the

question is all embracing. As to an occurrence of this

type, has there been doubt and uncertainty in the past

as to coverage? If not, what is there about contem-

porary developments which should now make twilight

out of that which has been thought to be as clear

* Longshoremen’s and Harbor Workers’ Compensation Act,

33 USCA §§ 901-950.

(21)

as dav or as black as night?’ Specifically the ques-

tion presented is whether a person injured while work-

ing on an uncompleted vessel then launched and afloat

in navigable waters, but still under construction, is

covered by the State Act, or the Longshoremen’s Act,

or perhaps either one or both depending on the injured

party’s ultimate choice under the “first-come-first-

served” * Twilight Zone option?

Again as we remarked before, “the facts, strikingly

simple, neither complex nor conflicting, are not the

cause of bewilderment.”? Flowers v. Travelers Ins.

Co., 5 Cir., 1958, 258 F. 2d 220 at 221. The Employer

operates a shipyard on the Sabine River. At the

shipyard it builds new vessels and also repairs com-

pleted ships. Its employees, including welders, per-

form work both on repairs and on construction. There

is constant interchange between the two types of work.

The Emplovee MeGuyer on July 15, 1957, was in-

jured while working on an oil drilling barge then

under construction. The barge had been launched

and the superstructure was being built. Whrie Me-

(Ginver was welding on the port side of the deck, a

tank exploded causing severe head injuries from

which he died three days later. The drilling barge

had never been used in navigation, and there was still

substantial work to be done before it could be so

utilized.

*Ky mre coincidence the identical question is before us in 8

separate case from a different district. Argued and submitted

on the same day, it has been decided this day. Avondale Nhip-

yords, Ine v. Pod. Donovan, Deputy Commissioner, 5 Cir., 1961,

F. 2d

No. 18,695].

* Davis vPepartment of Lahor of Washington, 1942, 317 U.S.

40, OF SB Cr. ves, 87 L. Ed. 246, 1942 AMC 1653, was so char-

acterized in Lie Bard leben Coal Corp. v. Henderson, 5 Cir., 1944,

'te Fo 2d 4s Lat 43.

In proceedings before the Deput; Commissioner *

the original Compensation Order made on February

18, 1959, rejected the claim for death benefits filed by

the widow and children. The Deputy Commissioner

went right to the heart of the matter. As the reason

for rejecting the claim, he formally stated that “It

has not been held that the work on an uncompleted

vessel comes within the provisions of the Longshore-

men’s and Harbor Workers’ Compensation Act.”’

But while that was thought to be the final order

it was not. Indeed, a vear and a half later the final

Award now under review was a complete reversal

and held that the Longshoremen’s Act did apply. In

review proceedings that Order was twice remanded

to the Deputy Commissioner.’ Except that there was

an elaboration on essentially inconsequential details,

the last Award of May 13, 1960, with no explanation

for the change of decision, now declared the injury

subject to the Longshoremen’s Act and made an

Award of death benefits. The record, as such, does

not spel] out this change of heart. On the argument,

however, there was general agreement by all counsel

that this change in the Deputy Commissioner’s de-

*United States Department of Labor, Bureau of Employees’

Compensation.

‘Apparently the Employer took an appeal under 383 USCA

§ 921(b) from the original Order of February 18, 1959. The

Court remanded the case for further proceedings for the

Deputy Commissioner “to reconsider the question of the situs

of injury to be in Orange, Texas.” By a modification award

on July 30, 1959, the order was amended to show the situs to

be Calcasieu Parish, Louisiana. The Order as thus amended,

denying benefits for want of coverage, was again brought

before the Court. On April 20, 1960, the Court ayain re-

manded it to the Deputy Commissioner “in order to permit

him to make findings and conclusions in accordance with the

facts and the law.”

cision was largely the result of a like change of view

by the Bureau of Employees’ Compensation concern-

ing the underlying legal question of coverage for new

construction. For reasons we later discuss, we regard

this change as significant, not because either counsel

or court consider this an intrusion into the inde-

pendent adjudicatory functions of the Deputy Com-

missioner, but rather as a convincing demonstration

that until thes® two cases * there was no serious con-

tention that new construction work was covered.

While this problem has its genesis in the consti-

tutional travail which gave birth to Jensen,’ which de-

spite severe criticism displays a remarkable tenacity

so that each vear sees fresh evidence of its continued

vitality, Kossick v. United Fruit Co., 1961, — U.S. —,

— S. Ct. —, 6 L. Ed. 2d 56, our inquiry is no longer

on that level. Now it is simply a question of statu-

tory construction to determine, not how far Congress

could have gone, or what Congress had to de, but

rather what Congress did. That question of statu-

tory construction centers around § 903(a)"° which de-

fines the coverage of the Longshoremen’s Act in terms

* See note 2, supra.

* Southern Pacifie Ce. v. Jensen, YT, 244 ULS. 205, 37S.

Cr. 524, 61 1. Ed. 1086.

*To the synopsis A Flowers, supra, 258 F. 2d 220 at 221,

note 2, may be added that developed in some subsequent cases

of this Court. 7. Smith & Sons, Inc. vy. Williams, 5 Cir., 1960,

275 F. 2d 397 at 398-401; Atlantic & Gulf Stevedores, Inc. v.

Donovan, 5 Cir., 1960, 274 F. 2d 74, 1960 AMC 1311, modified

on rehearing, 279 F. 2d 75; Vouk \. Liberty Mutual Ins. Co.,

5 Cir., 1959, 265 F. 2d 547, 1959 AMC 572, overruled on re-

hearing en bane 5 Cir., 267 F. 2d 218, 1959 AMC 2u4t; 7) tho-

deaus Vv. J. Ray McDermott & Co., 5 Cir. 1960, 276 F. 2d 42.

*The numbers in brackets [1] and [2] are inserted to em-

phasize the two distinctive separate jurisdictional requirements:

33 USCA $908(a). “Compensation shall be payable under

this chapter in respect of disability or death of an employee,

which are jurisdictional in nature and impact. Cro-

well v. Benson, 1932, 285 U.S. 22, 52 8S. Ct. 285, 76 L.

Ed. 598. Precisely the question relates to prerequi-

site [2] “if recovery for the disability or death

through workmen’s compensation proceedings may

not validly be provided by State law.”’

We start with an historic legal fact. In 1922 tive

years before the enactment of the Longshoremen’s

Act in response to the constitutionally unsuecessful

efforts to adopt state compensation laws for maritime

workers, the Supreme Court dealt with this very sit-

uation. With Jensen then, as now, a matter of every-

day preoecupation, the Court held that Oregon could

provide workmen’s compensation to a person injured

while working on an uncompleted vessel then under

construction and afloat in navigable waters. Grant

Smith-Porter Ship Company v. Rohde, 1922, 257 U.S.

469, 42S. Ct. 157, 66 L. Nd. 521.0 That the line was

drawn precisely on uncompleted construction versus

repair of a completed vessel is dermonstrated over-

whelmingly by contemporary cases upholding the

supremacy of admiralty and prohibiting the applica-

tion of state compensation acts to Injuries received

by those repairing existing vessels.” Rejecting the

but only if [1] the disability or death results from aa injury

occurring upon the navigable waters of the United States (in-

eluding any drydock) and if [2] recovery for the disability

or death through worknién’s compensation proceedings may not

validly be provided by state law.”

"© John Baizley Tron Works v. Span, 1930, 281 U.S. 222,

nO S. Ct. 306, 74 L. Ed. 819, 1980 AMC 755: Robins Drydock

& Repair Co. v. Dahl, 1925, 266 U.S. 449, 45 S. Ct. 157, 69 L. Ed.

372, 192% AMC 182: Great Lakes Dredge & Drudock Ca, v.

Kierejewski, 1923, 261 U.S. 479, 43.8. Ct. 418, 67 L. Ed. 756,

12 AMC 441; oops ek Vv. Morse Des Dock & Repair Co.,

1924, 226 U.S. 171, S. Ct. 39, 69 L. Ed. 228, 1924 AMC

1539: m4 Me evel Wai yeantaite ('o.. 1927, are | U.S. 427, 47 Ss. cA.

695, 71 L. Ed. 1135, 1927 AMC 1047.

contention of the injured repairman that “when hurt

he was doing work of a nature which had no direct

relation to navigation or commerce; and to permit

application of the state Workmen’s Compensation

Act would work no material prejudice to the essential

features of the general maritime law as in Grant

Smith-Porter Ship Co. v. Rhode * * *,”’ the Court

went on to pinpoint the very ground of distinction.

“In Grant Smith-Porter & Co. v. Rohde, supra,

claimant when injured was working upon an incom-

pleted vessel—a thing not vet placed into navigation,

-and which had not become an instrumentality of c¢om-

meree.”’ Baizley Tron Works v. Span, supra, 281

U.S. 222 at 230, 231.

And the line which the Court drew in the pre-1927

days was the line which Congress adopted in § 903(a),

note 9 supra. The Court itself has said so in the

plainest of terms, often repeated." **The main im-

petus for the longshoremen’s * * * Act was the need

to correct a gap made plain by decisions of this Court.

We believe that there is only one interpretation of

the proviso in §3(a) which would accord with the

Davis v. Department of Labor of Washington, 1942, 317

TS. 249 at 256, 63S. Ct. 225, 87 L. Ed. 246, 1942 AMC 1653,

the Court stated: “In our decision in Parker v. Motor Boat

Sales * * * we held that Congress has by the Longshoremen’s

Act accepted the Jensen line of demarcation between state and

federal jurisdiction.”

Even more recently in Pennsylvania Ry. Co. v. O'Rourke.

1952, 344 U.S. 334, 73 S. Ct. 302, 97 L. Ed. 367, 1953 AMC

257, it first stated, “This Act and the Jones Act provided means

for indemnification for injuries for all maritime employees who

were beyond the constitutional reach of state legislation.” The

Court went on to declare: “A quarter of a ae of experi-

ence has not caused Congress to change the plan. The */Jensen

line of demarcation between state and federal jurisdiction’ has

heen accepted.” 344 U.S. 334 at 337.

aim of Coneress: the field in which a state may not

validly provide for compensation must be taken, for

the purposes of the “Aet, as the same field whieh the

Jensen line of decision excluded from state eompen-

sation laws. Without affirming or rejecting the con-

stitutionel impheations of those eases, Wweaceept them

as the measure by which Congress intendad to mark

the scope of the Act they brought into existence.”

Parker vy. Motor Boat Sales, Inec., 1941, 314 U.S. 244

at 250, 62 S. Ct. 221, 86 L. Ed. 184, 1942 AMC 1.

Of course in this analysis we may not ignore the

Twilight Zone concept announced by Davis, supra.

In effect it holds that where it is difficult to ascertain

What the line is, or on which side of any such assimed

line the facts put a partienlar case, “tan injured

waterfront employee’? was given ‘tan election to re-

cover compensation under either the Longshoremen’s

Act or the Workmen's Compensation Law of the

State in which the injury occurred.” Hahn vy. Ross

Island Sand & Gravel Co., 1959, 358 U.S. 252 at 273.

79 S. Ct. 266, 3 L. Ed. 2d 292. But neither Danis

nor Moore’ nor Baskin’ were intended to make

everything twilight merely because the injury oe-

curred near the waterfront to one who worked in, on,

under or around it. The Twilight Zone concept was

“devised to solve cases in, not to create, the twilight.”

Flowers v. Travelers Ins. Co., su pra, 258 F. 2d at 228.

1? Moore’s case, 1948, 323 Mass. 162, 80 N.E. 2d 478, 1958

AMC 1S62, affirmed per curiam, sub nom. Bethlehem Steel Co.

v. Moore, 1948, 335 ULS. 874, 69S. Ct. 239, 93 L. Ed. 417,

® Baskin v. Industrial Accident Commission, 1919, 338 U.S.

854, 70 S. Ct. 99, 94 L. Ed. 523, reversing, per curiam, 89 Cal.

App. 2d 632, 201 Pac. 2d 549; on remand to the state court,

97 Cal. App. 2d 257, 217 Pac. zd 733, affirmed per curiam,

Kaiser Co., Inc. v. Baskin, 1950, 340 U.S, 886, 71S. Ct. 20s,

95 L. Ed. 643.

Indeed, Davis properly understood is a recognition

that there are some activities and some areas in which

the Jensen line is clear and distinct. As to those the

command of Congress is emphatic: those on the ‘ad-

muralty” side are exclusively covered by the Long-

shoremen’s Act; those on the “maritime but local”

side are state.

There is here more than the normal cotpulsion

to heed the congressional command simply because

it is the law. Here there is an imperative necessity.

All—ecourts, judges, counsel, employers and employ-

ees in the industrial maritime field, insurers and

marine underwriters—deplore the uneertamity inthis

problem. Reeognized, of course, is the ineseapabit

fact that from the nature of this overlapping of

state and federal sovereignty, the problem at. times

is serious and substantial and, like Mordecar at the

Gate, simply will not go away. But im those areas—

rare as they might be—in which there is clamtys, in

Which the line is clearly drawn, in which it may be said

with some competent asstrrance that it ois either one

or the other, effectual enforcement of the socially

desirable aim oof seeuring ao speedy determinable

money indemnity under the operation of automatic

self-executing compensation statutes reqnires that

Phe Seman problem does not arise unless there is a con

junction of (1) an injury and (2) its occurrence on navigalle

waters. Where the injures occur on land or what is deemed an

extension of land, the maritime law has no application at all,

State Industrial Commission v. Nordenholt Corp. VWre2, 259

U.S. 263 at 275-76, 42:8. Ct. 4735, 66 L. Ed. 933.

We have several times outlined the self-executing nature

of the Longshoremen’s Act. Flowers vo Travelers Ina. €o.,

supra, 258 F, 2d 220 at 225-27; Atlantic & Gulf Stevedores,

Inc. v. Donovan, 5 Cir., 1960; 274 F. 2d 794 at 799-801; and

7. Smith & Son, Ine. v. Williams, supra, 275 F. 2d 397 at 400,

note 11.

courts have the resourcefulness to ascertain, and

when ascertained, tht fortitude to stand by the decla-

ration of an identifiable line.

Such consideraions have cut a large figure im the.

disposition this Court has made in two weil-detined

areas. Where from contemporary action by state

courts in the maritime states of this Circuit the pre-

existing certainty was imperiled by the beguiling

appeal of a free-wheeling election or the assertion

that what had been clear was now Twilight, this

Court, not without some travail of its own, hewed to

the line. Longshoremen, loading or unloading ves-

sels on navigable waters were restored once and for

all to the place where Jensen put them. Noah v.

Liberty Mutual Ins. Co., supra, note 8. This stand

has more than restered symmetry within the federal

establishment of this Cireuit. It has, without a

doubt, been a substantial facter in the decisions of

the state courts. If federal courts whe are charged

primarily with the immediate responsibility of eluct

dating the statutery and constitutional principles

which inhere in this aeute problem of federalism

stand fast, it eneourages, if not assures, a cohesive,

consis@ent, harmonious treatment by our counterparts

in the state judiciaries. Thus, for example, did the

confidence in the ultimate rightness of the decision

of Louisiana eourts, expressed without reservation

in T. Smith & Sow, Ine. vo Williams, 5 Cir, supra,

975 F. 2d 397, turn out te be well founded. This

was accomplished without the aid of the much sought

for Federal injunction against prosecution in. the

state court of claims under the Louisiana Workmen's

Compensation Act or the necessity or artful con

structions of the anti-injunetion statute, 28 USCA

§ 2283. Louisiana has new spoken iff terms as post-

tive as Noah, Longshoremen are not in the Twilight.

Jt)

Loreshoremen are im the federal area only. The

Lour ana State Compensation Aet may not validly

apply te them. Ellis veo Travelers Tie, Co., 1961,

— La. —, 129 Se, 2d 724; consolidated with Wlliam

Stepter vi To Smith & Sov, Ine., 1961, — La. —

129 So. 2d 740. affirming the Court of Appeals, 125

So. 2d 780 and TSS, respectively,

Likewise, in the face of some state court dgeisions

Which we have expressly declined to approve or follow,

have we spoken in positive terms as to ship repairers.

A ship repatrer is not in the Twilight. Hle is in the

federal domain. The State Aet may not validly apply.

Flowers Vv. Travelers Ins. Co., supra, 258 F.2d 220.

it mav seem te be unimportant that a restricted

eatyzory of workers on new construction should be

Classified so sharply. But it is of such stuff we the

certainty so badly needed in the routine operation of

any compensation program will come. The conVerse is

true. The moment what has been theught’ to Wee

hight or dark now beeomes Twilight, the whole process

hecomes encumbered with the collateral and disruptive

controversy Which comes te an end authoritatively

only after a long struggle culminating ma Noah or a

Flows rs decision. 4

The Supreme Court drew the line. For those work-

Ing on uncompleted vessels afloat state compensation

acts may validly apply. Congress adopted that line in

§ 908¢a). There is no shadow, There is no obscurity.

There is no uncertainty. It is as clear as it was in

1922 that sech mjuries are for state compensation.

None of the arguments offered to overcome this sim-

ple, but positive, lesson of history in action is of any

merit. The main contention is that Grant Smith-

Porter Co. was a “maritime but local” ease. Two

things are then asserted. The first is that the Jegisla-

tive history, meager-and searee as it is on this point,”

made ne reference -fo the “loeal coneern” doctrine,

This rests in part on the faet that the Committee Re-

port in its statement that maritime werkers are “*un-

fortunately * * * exeluded from” state laws and that

the ‘‘Supreme Court has more than once held that

Federal legislation cannot, constitutionally, be enacted

that will apply State laws to this occupation” cited, in

addition to Jensen, only the two cases holding Con-

gress could not adapt state legisiation.” That, it is

ueced, demonstrates that Congress was not legislating

with the other cases in mind. But the Supreme Court

has not read the legislative history that narrowly (see

nete Tl, sapra and appended text). When reference

was made to Jensen, Congress thought, just as do

judges, courts and lawvers today, of the whole thing

turned loose by that auspicious doetrine. Part of that

struggle, inherently part and parcel of the conipelling

supremaey of the admiralty in the areas where wni-

formity Was essential, was the reflex of that—the area

in Which application of lecal laws would not work any

“material prejudice to the general maritime law,’

Western Fuel Co. v. Gareia, 1921, 257 ULS. 233, 42

S. Ct. 89, 66 L. Ed. 210.

That concept of maritime but loeal is still valid.”

The problem is all wrapped up together. “The mame

Jensen is a shorthand abbreviation that embraces all.

This is manifest from the very recent declaration by

Ist Sess., Vol. 3, Rep. 972, p. 916: and HER. 1767, 69 Cong. 2nd

Sess. p. 19. a

' These were Anichkerbocker Tee Co. vo Stewart, 1920. 253

TUS. 149, 40S. Ct. 458, 64 L. Ed. 834: Stote of Woshington v.

W.. Dawson & Co., 1924, 264 UlS. 219, 44.5. Ct. Son, 68 LL.

Ed. 646, 1924 AMC 403.

* See note 14, suprv.

the Court in Aossickh v. United. Fruit Co., 1961, —

US. —, — 8. Ct. », 6 L. Ed. 2d 56-at 62, — AMC —.

“This brings us, then, to the remaining, and what we

believe is, the controlling question: whether the alleged

contract, though maritime, is ‘maritime and local,’

Western Fuel Co, v. Garcia, 257 U.S, 233, 242, * * *

in the sense that the application of state law would

not disturb the uniformity of maritime law, Southern

Pacific Co. v. Jensen, 244 US, 205 * * *." And in the

context of this compensation struggle, like language

was used in Hahn v. Ross Island Sand & Gravel Co.,

supra, 358 U.S. 272. Of Darts the Court said, “* * *

we recognized that in some cases it Was impossible to

predict in advance of trial whether a worker's injury

oceurred in an operation which, although maritime in

nature, was so ‘local’ as to allow state compensation

laws validly to apply under the limitation of Southern

P. Co. v. Jensen * * *. In view of these strong

contemporary recognitions of the vitality of the mari-

time but loeal concept and our present “clear duty to

consider carefully what the law is on this important

and far-reaching question,” River Terminals Corp. v.

Southwestern Sugar & Molasses Co., 5 Cir., 1958, 253

F. 2d 922 at 925, 1958 AMC 1534, affirmed and

remanded, 1959,/360 U.S. 411, 79S. Ct. 1210, 3 L. Ed.

2d 1334, 1959 AMC 1631; 274 F. 2d 36, 1960 AMC

DOO, expressions In some of our prior eases cannot

be controlling. In several it has been said or implied

that the consequence of the enactment in 1927 of the

Longshoremen’s Act was a congressional declaration

that “maritime but local” no longer applied. The

reasoning essenfially was that by virtue of the Long-

shoremen’s Act “Congress intended to exercise to the

fullest extent all the power and jurisdiction it had

over the subject matter.” Continental Casualty Co..

v. Lawson, 5 Cir., 1933, 64 F. 2d 802 at 805, 1933

AMC 794. At another time it was phrased this way.

“No ground should be vielded to state jurisdiction

In eases falling within the principle of the Jensen case

** *" De Bardeleben Coal Co. v. Henderson, supra,

142 F. 2d 481 at 484.) But as the reeent cases show

without doubt, this igneres element [2], see note 9,

supra, of the coverage clause, That was made plain

in Davis, supra. After reviewing the unsuecesstul

efforts of Congress to adopt state compensation acts,

it said of the Longshoremen’s Act: “Here again, how-

ever, Congress made clear its purpose to permit state

compensation protection whenever possible by making

the federal law appheable only ‘if recovery for the

disability or death threngh workmen's compensation

proceedings may not validly be provided by state

law." 317 U.S. 249 at 252-538. And O'Rourke and

Hakn are fresh reminders that element [2] makes

the inquiry indispensable. Moreover that) inquiry,

when made, ultimately has to be in the classic terms

embodied in the “maritime but loeal” formula.”

This analysis disposes, at the same time, of all of

the dryvdock or marine railway eases” even though

“In Dees the formula was translated into these terms:

“ee * Tt must be remembered that under the Jensen hypoth-

esis, basic conditions are factual: Does the State law “interfere

with the proper harmony and uniformity of maritime law?”

Davis v. Department of Laher, supra, SIT US. 249 at 204.

** See from this Court: Maryland Casualty Co. v. Lawson,

5 Cir, 1939, 101 FL 2d 732, 1939 AMC 129: Massachusetts

Bonding & Ins. Co. v. Laurson, 5 Cir. 1945, 149 F. 2d 853,

1945 AMC 878: Avondale Marine Ways v. Henderson, 5 Cir,

1953, 2Ol F. 2d 437.1993 AMC 432, affirmed, 346 U.S. 366,

74.8. Cr. 100, 98 L. Ed. 77, 1953 AMC 1990. Also from other

Circuits, Vonited States Casualty Co. v. Taylor, 4 Cir. 1933,

64 F. vd 521, 1933 AMC 1200, no longer followed, see Travelers

Ins. Co. v. McManigal, 4 Cir., 1944, 139 F. 2d 949, 1944 AMC

377, and Newport News Shipbuilding & Drydock Co. v.

plansible arguments from analogy tay be corstrneted

that if a marine railway on land is within the cover-

ave, a tloating uneempleted hull should likewise be.

[bat these Cases le ret overeong the eatevorien| pre-

1927 holding, adopted by Congress in 9 903 (a), that

injuries on an uncompleted vessel afloat but. still

under construction may, in the words of the statute,

be tvalidivy * * * provided by state law.”

Nor does O'Rourke, supra, require any different

result. We pomted out in Flowers that this case in

the resolution of some of these problems ‘has, in our

judgment, been given altogether too little attention,”

YaS FL 2d 220 at 223. The case, we stated, “added

the further and entirely new concept that where

coverage of 6 903Ca) is applicable, the exclusive ha-~

Inlity of 6905 does not depend on the nature or

character of the work beimg done by the injured

emplovee as lone as (1) that injury oeenrs on navi-

vable waters and (2) the employer is such a person

‘ony of whose emplovees are emploved in maritime

employment, in whele or in part, upon the navigable

Waters of the United States * * * .’ § 902(4).°° 258

Bo 2d 220 at 224. But that does net come into play

until it as first determined whether the case is within

SWSCa) and that requires a finding under element

12), see note 9, supra,

As a final thrust it is then insisted that even though

“maritime but loeal’’ still survives, this is a Twilight

case under Davis. But what, apart from these very

decisions of the two Deputy Commissioners affirmed

by two Distriet Courts, brings about the haze of un-

certainty? It was clear enough for the Deputy Com-

missioner to first rule that “It has not been held that

OTearne, 4 Cir, 1951, 1% F. 2d 968; Western Boat Bidq. Co.

v. PLeary, 9 Cir, 1952, 198 F. 2d 409, 1952 AMC 1639.

the work on an uncompleted vessel comes witain the

provisions of the Longshoremen’s * * * Aet.’ For

this February 1959 declaration the Administrator

acting within the confines of the Fifth Cireuit had

some fairly substantial, if not infallible, grounds in

the expressions which we made in 1958 in Flowers.

To acknowledge that this statement may perhaps

properly be characterized as dicta does not detract

from the fact that this Court in drawing the line for

ship repairers thought it necessary to consider that

group in contrast to those engaged in new econstrue-

tion and in doing so used very positive language. “In

contrast to” repair of a completed vessel, we declared,

“work on an uncompleted hull before it has become

a ship is not under Federal coverage and is, on the

contrary, under State jurisdiction: Grant) Smtth-

Porter Ship Co. v. Rohde * * *,” 258 F. 2d 220 at

222, note 5.”

It is surprising, indeed, that with Grant Smith-

Porter Co, still very much alive in its 49th year and

the Longshoremen’s Act now in its 4th decade of op-

erations, a thing as well settled as this has suddenly

become aa Davis with all of its **Theoretie

iMegic,”” S. 247 at 259 (concurring) is, as the

Court's an ‘isions reflect, “a practical solution to a

practiral problem,’* 358 U.S. 272 at 274 (dissenting).

It does not serve that function 1f it is used as a basis

** It would be doctrinaire to quibble over the phrase “before

it has become a ship” as does the Deputy Commissioner's brief

in reliance on Zucker v. Alerandroff, 1902, 183 US. 424,

S. Ct. 195, 46 L. Ed. 264. In any event, in a situation in-

volving the nature of the building of a ship. in contrast to the

repair of an existing vessel, the Supreme Court sharply re-

stricted the Zucker case. Thames Toiwhoat Co. ¥. Schooner

Francis McDonald, 1920, 254 US. 242 at 244. 41S. Ct. 85, 65

L. Ed. 2d 245.

for finding new uncertainty, of creating, not solving,

doubt.

It is no answer to urge that the distinction at times

conceivably may produce results that are extremely

fine. That is the inevitable likelihood in dealing with

strict jurisdictional lines. The Constitution at times

sets up a barrier at the water’s edge. It probably

does not make much sense from an operational stand-

point that a longshoreman injured while handling one

end of a bale of eotton on the dock has a state remedy

only whereas his counterpart injured when the other

end drops while he stands with both feet on the ship’s

deck must go the federal route. Nor is it any more

appealing that a welder fabricating a repair fitting

on the dock adjacent to a completed ship is a state

case Whereas a fellow welder on the ship’s deck work-

ing on precisely the same fitting must look exclusively

to the Longshoremen’s Aet.

We know by now that nothing written in this field

is the last word. All it can be is “the latest word.’

T. Smith & Son, Ine. vy. Williams, supra, 275 F. 2d 397

at 407. Until there is a further word, this Court, for

one at least, has three clear-cut categories: (1) long-

shoremen working on aship and (2) repairmen work-

ing on a completed vessel are under the Longshore-

men’s Aet; (3) persons working on an uncompleted

ewissel athoat but under construction are covered by the

state act. Thus do we afford to “these hard-working

men, engatéd in a somewhat hazardous employment,

the justice involved in the modern principle of eom-

pensation * * *"'” by a proceeding which is certain

and swift and virtually self-exeeuting. The eongres-

sional policy retleeted in element [2] of § 903(a) has

#S. R. 69th Cong., Ist Sess., Vol. 3, Rep. 973, p. 916: see

note 16, evpre,

freed this remedy for these workers from the agony of

‘ase-by-case adjudication with the portentious consti-

tutional overtones * involved in’ nearly every such

elaim and which, for scholars and historians may be

interesting, if not decisive, but which hardly offer a

solution to the pressing, immediate, urgent problem of

the injured worker, his employer and its Insurance

earrier.

The compensation order was not in accordance with

law and must be set aside, 33 USCA § 921(b).

REVERSED AND RENDERED.

**This is no better illustrated than in the complex field of

maritime death actions. See Thibodeaux v. J. Ray McDermott

& Co. 5 Cir., 1969, 276 F. 2d 42 at 47, note 6, and Emerson v.

Holloway Concrete Products Co., 5 Cir, 1960, 282 F. 2d 271 at

281, notes 10 and 11 (dissenting) for a summary of the shifting

position and alignment of the several Justices; and see Currie,

Federalism and Admiralty, The Devil's Own Mess, 1960, The

Supreme Court Review 158; Baer, At Sea With the United

States Supreme Court, 38 N.C.L. Rev. 307 (1960).

APPENDIX B

In the Unites States Court of Appeals for the Fifth

Circuit

No. 18695

AVONDALE SHIPYARDS, INC. APPELLANT

e’. =

P. J. Donovan. Depury Com MISSIONER, SEVENTH Com-

PENSATION District, Bureau oF EMPLOYEES” Com-

PENSATION, U.S. DEPARTMENT OF LABOR, AND MINUS

AIZEN, APPELLEES

Appeal from the United Stutea District Court for the Eastern District of

Lousiana.

(July 13, 1961)

Before Cameron, Brows and Wispom, Cirenit

Jndyves, :

Brown, Crrent Judge: This case presents for deei-

sion the identical question this day decided in) The

Travelers Tus. Co.v. Calbeal:, Deputy Commissioner, 5

Cir., 1961, r. 2d —. AMC [No TSS02 |,

whether I pUries recerved hy a bers working om an

nncompleted vessel, lannehed and afloat but still under

construction, are covered under the-State or the Fed-

eval Longshoremen’s Act.

The facts are not significantly different. The Fm

plover, Avondale Marine Wavs/Ine.. has two large

shipyards and regularly performs new construction

work and repair work. Generally in the Employer's

large labor force the work performed by a particular

employee was primarily one rather than the other.

Oceasionally an employee would perform the other.

(38)

The injured employee, however, worked regularly and

solely in) new construction, The injuries were re-

ceived on Aucust 11, 1956, while the employee was

working as a welder on an uneompleted elevated deck

drilling barge. The hull had been launched July 26,

1956, but the vessel was not completed and delivered

until November 17, 1956. By stipulation the barge,

at the time of the accident. was 57 percent complete

based both on probable dollar cost and estimated man

hours of work.

Unlike the Calbeck case only one Award was issued

here. On January 27, 1960, Deputy Commissione r

Donovan entered an Award of compensation be nefits

under the Longshoremen'’s Act. This was, of course,

subsequent to the two Orders of Deputy Commis-

sioner Calbeck in the other similar case then pending

before the Bureau of Employees’ Compensation, but

it was prior to the Distriet Court's Order of April 20,

1960, which remanded the matter for further proceed-

ings and resulted in a complete about-facé—See note

5 in Calbeck, — F. 2d — at —. The uncertainty

and confusion was, therefore, being generated by the

two cases themselves. F

As in the other case, we hold that injuries to such a

worker may validly be covered by the State“ Com

pensation Act. Consequently, the Order of the Dep-

uty Commissioner must be set aside as not in accord-

ance with law, 33 USCA 6 921(b).

This makes it unnecessary to pass on the additional!

contention of the Employer that payments aggregat-

ine several thousand dollars for compensation and

medical expense ostensibly made under the Louisiana

Act constituted such an administrative determination

as to be within that aspeet of Davis v. Department of

Labor, 1942, 317 U.S. 249, 63 S. Ct. 225, 87 L. Ed.

246, 1942 AMC 1653.

REVERSED AND RENDERED.

APPENDIX C

JUDGMENT

Extract from the Minutes of July 13, 1961

No. 18802

THe TRAVELERS INSURANCE COMPANY AND LEVINGSTON

SHIPBUILDING COMPANY

C. PD. Carspeck, Derpcty CoMMISSIONER, EIGHTH

COMPENSATION District FOR THE Bureat oF EM-

PLOYEES’ COMPENSATION, U.S. DEPARTMENT OF

LABOR, ET AL.

This cause came on to be heard on the transerpt

of the record from the United States District Court

for the Western District of Louisiana, and was ar-

gued by counsel;

On consideration whereof, It is now here ordered

and adjudged by this Court that the judgment of

the said District Court in this cause be, and the

sare is hereby, reversed and here rendered for the

appellants, The Travelers Insurance Company and

Levingston Shipbuilding Company.

, (40)

JUDGMENT

Extract from the Minutes of July 13, 1961

No. 18695

AVONDALE SHIPYARDS, INC.

P. J. Donovan, Deputy COMMISSIONER, SEVENTH

CoMPENSATION District, BuREAU OF EMPLOYEES’

CoMPENSATION, U.S. DEPARTMENT OF LABOR, AND

Minus AIZEN *

This cause came on to be heard on the transcript

of the record from the United States District Court

for the Eastern Distriet of Louisiana, and was ar-

gued by counsel;

On consideration whereof, It is now here ordered

and adjudged by this Court that the judgment of the

said District Court in this cause be, arid the same is

hereby, reversed and here rendered for appellant,

Avondale Shipyards, Ine.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.