I.T.O. Corp. of Baltimore v. Benefits Review Bd., U.S. Dept. of Labor
| Decision Date | 22 December 1975 |
| Docket Number | 75--1196 and 75--1088,Nos. 75--1051,75--1075,s. 75--1051 |
| Citation | 529 F.2d 1080 |
| Parties | I.T.O. CORPORATION OF BALTIMORE, Employer, and Liberty Mutual Insurance Company, Carrier, Petitioners, v. BENEFITS REVIEW BOARD, U.S. DEPARTMENT OF LABOR, Respondent, William T. Adkins, Respondent, International Longshoreman's Association, Amicus Curiae. MARITIME TERMINALS, INC., and Aetna Casualty and Surety Co., Petitioners, v. SECRETARY OF LABOR, and Donald D. Brown, Respondents. MARITIME TERMINALS, INC., and Aetna Casualty and Surety Co., Petitioners, v. Vernie Lee HARRIS, and United States Department of Labor, Respondents. NATIONAL ASSOCIATION OF STEVEDORES et al., Petitioners, v. BENEFITS REVIEW BOARD, U.S. DEPT. OF LABOR, Respondent, William T. Adkins, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
David R. Owen, Baltimore, Md. (Francis J. Gorman, Semmes, Bowen & Semmes, Baltimore, Md., on brief), for I.T.O. Corp. of Baltimore and Liberty Mutual Ins. Co.
Donald A. Krach, Niles Barton & Wilmer, Baltimore, Md. (Paul B. Lang, William C. Stifler, Baltimore, Md., Thomas D. Wilcox, Washington, D.C., on brief), for National Ass'n of Stevedores.
Amos I. Meyers, Baltimore, Md. (Terry Paul Meyers, Baltimore, Md., on brief), for William T. Adkins.
Thomas W. Gleason, Jr. (Herzl S. Eisenstandt and Richard H. Kapp, on brief), amicus curiae for Intern. Longshoremen's Ass'n, AFL-CIO.
George M. Lilly, Atty., Washington, D.C. (William J. Kilberg, Sol. of Labor, Marshall H. Harris, Associate Sol., and Karen L. Gilbert, Atty., U.S. Dept. of Labor, on brief), for Director, Office of Workers' Compensation Programs.
John B. King, Jr., Norfolk, Va. (Walter B. Martin, Jr., Vandeventer, Black, Meredith & Martin, Norfolk, Va., on brief), for petitioners, Maritime Terminals, Inc. and Aetna Cas. and Sur. Co.
Charles S. Montagna, Norfolk, Va. (Breit, Rutter & Montagna, Norfolk, Va., on brief), for respondents, Donald D. Brown and Vernie Lee Harris.
Linda L. Carroll, Atty., U.S. Dept. of Labor (William J. Kilberg, Sol. of Labor, Laurie M. Streeter, Acting Associate Sol., and George M. Lill, Atty., U.S. Dept. of Labor, on brief), for Director, Office of Workers' Compensation Programs.
Before HAYNSWORTH, Chief Judge, and WINTER and CRAVEN, Circuit Judges.
These appeals present the question of first impression of the extent to which the 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq., extend benefits under the Act to persons engaged in necessary steps in the overall process of loading and unloading a vessel, but who, prior to the Amendments, could claim benefits for accidental injury or death only under state law. The Administrative Law Judge and the Benefits Review Board of the Department of Labor held that benefits under the Act had been extended to all persons handling cargo or performing related functions in the terminal area. We disagree, and reverse each of the three awards in these cases.
We conclude that the Act's benefits extend only to those persons, including checkers, who unload cargo from the ship to the first point of rest at the terminal or load cargo from the last point of rest at the terminal to the ship. While the 1972 Amendments do extend the benefits of the Act to some persons who were not previously eligible, coverage is limited by the concept of 'maritime employment,' and not every person handling cargo between ship and point of discharge to the consignee or point of receipt from the shipper is engaged in 'maritime employment.' On the facts we conclude that these three claimants were not. The 1972 extension of coverage was intended only to remove inequities and anomalies arising when a person otherwise engaged in 'maritime employment' was injured on land.
A subsidiary question in Nos. 75--1051 and 75--1088 is raised by the motion of Benefits Review Board, Department of Labor, to substitute the Director, Office of Workers' Compensation Programs, Department of Labor, as to which is the proper respondent in a petition to review under 33 U.S.C. § 921(c). We think that neither is a proper party to the proceedings. We therefore deny the Board's motion to substitute, and dismiss the Board. We will treat the Director as amicus curiae.
The awards presented for review were made to William T. Adkins, who was injured at Dundalk Marine Terminal in the Port of Baltimore, and to Donald D. Brown and Vernie Lee Harris, both of whom were injured at Marine Terminals, Inc., the lessee and operator of Norfolk International Terminals in Norfolk, Virginia.
A. Adkins was a forklift operator and he sustained his injuries while he was moving a load of brass tubing from its storage place in a warehouse to a waiting delivery truck which would transport it to its ultimate destination. He performed a function in the overall unloading of the ship and discharge of its cargo from the terminal. The tubing had arrived at the terminal some seven days earlier aboard the SS American Legend, packed in a container. The container had been removed from the vessel and immediately taken from the ship's side to a marshaling area one-half to three-quarters of a mile away where it was stored with other containers. The ship sailed on the same day that it had docked. Three days later the container was moved 1,000--1,200 feet to a warehouse or transit shed, known as Shed 11, where the container was 'stripped,' i.e., unloaded, and the brass tubing stored to await transportation to its destination. The delivery truck did not arrive until four days later, and shortly thereafter Adkins was injured loading the tubing into it with his forklift.
Shed 11 was 685 feet from the water's edge. It was not connected geographically or functionally with the ships' berthing area, and ships were neither loaded nor unloaded from it.
B. Brown suffered carbon monoxide poisoning while he was engaged as a forklift operator at Marine Terminals. He performed a function in the overall loading of cargo on board a ship. He operated his forklift in a warehouse where cotton piece goods and barrels of chemicals had been deposited after delivery by truck or rail. His job was to move loads of these items from their storage place to a container which was then 'stuffed,' i.e., loaded with the items he had moved.
After a container was fully loaded, it was sealed and moved by another vehicle, called a 'hustler,' to a marshaling area adjacent to the pier. The container would then be lifted from the 'hustler' and placed in a stack with other containers to await the arrival of a ship. When the ship arrived the container would be loaded aboard. Brown took no part in these latter operations. They were performed by persons other than employees of Marine Terminals. At no time was Brown required to board a ship. The warehouse in which he worked was 850 feet from the water's edge.
C. Harris was injured when the brakes failed on a 'hustler' which he was operating and it collided with a container. He, too, performed a function in the overall loading of a ship; his was the next after that performed by Brown. Harris moved containers from the longterm container storage area to the container marshaling area adjacent to the pier. He had just deposited a container at the container marshaling area and was on the return trip to the long-term container storage area to pick up another container when his brakes failed. No ship was present at the pier at the time, and the containers in the marshaling area were not scheduled to be loaded aboard a vessel until later in the day when one was scheduled to arrive.
The awards were made under § 3(a) of the Act, 33 U.S.C. § 903(a) (1975 Supp.), which, in pertinent part and with italics to show the Amendments made in 1972, provides:
Compensation shall be payable . . . in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). . . .
The meaning of the words 'employee' and 'employer' is found in § 2(3) and (4), 33 U.S.C. § 902(3) and (4) (1975 Supp.), and these subsections, with italics to show the 1972 Amendments, provide:
(3) The term 'employee' means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.
(4) The term 'employer' means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel).
Prior to 1972, 1 benefits were payable under the Act to any person (except a master or member of a crew or a person loading or unloading a vessel under eighteen tons net) if he was injured 'upon the navigable waters of the United States (including any dry dock) and if recovery for the disability through workmen's compensation proceedings (could) not validly be provided by State law,' with certain exceptions not material here. The pre-1972 Act thus did not distinguish among employees depending on the function they performed. Instead, the geographical location of the injury was all-important, with coverage stopping at the water's edge.
Sections 2 and 3 of the present Act establish a dual test for coverage. The situs requirement has been retained, with the...
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