# Petition for Writ of Certiorari — Calbeck v. Travelers Insurance Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0102%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1962 - **Citation:** 370 U.S. 114 ## 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 @) I! (‘ases——Cont inued Parker v. Motor Boat Sales, 314 U.S. 244. ~2. Pennsylvania Railroad Co. ¥. O Rourke, 34S, 334 at 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 14 -15 12, 13, 15, > 16 17 16 18 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 v. THE TRAVELERS Insurance Co. AND LEVINGSTON SHIPBUILDING Co. ‘ ne P. J. Donovayx, Deputy COMMISSIONER, BUREAU OF I] MPLOYEES’ COMPENSATION, UNITED STATES Deparrt- MENT OF LABOR, PETITIONER v. 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 . 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 13 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. l4 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 15 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 16 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- © Prior to Janis, the Fourth Cireuit had held that the Long- 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 * . 17 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 18 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 * 19 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 v. 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) 22 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. m4 X 23 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.” 24 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, 25 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. t= 26 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. ae 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. 28 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. 29 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- ol 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 ‘© See the Senate Judiciary Comittee Report, SR. 69 Cong. 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. 32 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 \ , 33 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. 34 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. 35 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. 36 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, 37 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) 39 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 U. 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) 41 JUDGMENT Extract from the Minutes of July 13, 1961 No. 18695 AVONDALE SHIPYARDS, INC. v. 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. ©. 8. GOVERNUENT PRINTING OFFICE: 1948 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0102%3A02. Public record. Not legal advice.