Churchill v. Perini North River Associates, No. 1429

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: Before MESKILL and KEARSE, Circuit Judges, and LASKER; PER CURIAM
• Citation: 652 F.2d 255
• Parties: Raymond CHURCHILL, Petitioner, v. PERINI NORTH RIVER ASSOCIATES and Hartford Accident & Indemnity Company, Respondents, and Benefits Review Board, U. S. Department of Labor, Respondent, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondent. ocket 80-4250.
• Decision Date: 17 June 1981
• Docket Number: D,No. 1429

Page 255

652 F.2d 255 Raymond CHURCHILL, Petitioner,
v.
PERINI NORTH RIVER ASSOCIATES and Hartford Accident &
Indemnity Company, Respondents,
and
Benefits Review Board, U. S. Department of Labor, Respondent,
and
Director, Office of Workers' Compensation Programs, United
States Department of Labor, Respondent. No. 1429, Docket 80-4250. United States Court of Appeals,
Second Circuit. Argued June 2, 1981.
Decided June 17, 1981.

Page 256

David MacRae Wagner, New City, N. Y. (Freedman, Wray, Wagner, Tabakman & Weiss, New City, N. Y., of counsel), for petitioner.

Mark C. Walters, U. S. Dept. of Labor, Washington, D. C. (T. Timothy Ryan, Jr., Sol. of Labor, Cornelius S. Donoghue, Jr., Acting Associate Sol. of Labor, Washington, D. C., of counsel), for respondent Director of Compensation.

Martin Krutzel, New York City (Fischer Brothers, New York City, William F. Fischer, Jr., New York City, of counsel, Richard A. Cooper, New York City, on brief), for respondents Perini Associates and Hartford Accident & Indemnity Co.

Before MESKILL and KEARSE, Circuit Judges, and LASKER, District Judge. ^*

PER CURIAM:

This case presents a clear, if not easy, issue: was the claimant engaged in "maritime employment" within the "status requirement" of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 902(3) (LHWCA). ¹ The answer to this question depends on whether Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458 (1980), has implicitly reversed the decision of this Court in Fusco v. Perini North River Associates, 622 F.2d 1111 (2d Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 953, 67 L.Ed.2d 119 (1981) (Fusco II ). Because we believe that Sun Ship, Inc. has not undermined Fusco II, we

Page 257

deny the petition for review and uphold the decision of the Benefits Review Board (Board).

I.

This claim arose as a result of an injury occurring in the course of the construction of the North River Pollution Control Project, a massive undertaking described at length in Fusco v. Perini North River Associates, 601 F.2d 659, 661-62 (2d Cir. 1979), vacated and remanded, 444 U.S. 1028, 100 S.Ct. 697, 62 L.Ed.2d 664 (1980) (Fusco I ). Petitioner Raymond Churchill is a dock-builder foreman and has been a member of the dockbuilders' union for more than 20 years. At the time of the accident, Churchill was responsible for the work performed on one of the "crane barges" which carried the huge "caissons" ² to the construction site. On October 9, 1974, Churchill was injured when, in the course of supervising the unloading of a caisson, a line snapped against his leg, pitching him into the air.

On December 4, 1978, Administrative Law Judge Julius Johnson denied Churchill's claim for compensation under the LHWCA, ruling that "claimant's employment was not maritime in (the) traditional sense, but was customary construction work.... Mere construction over navigable water ... does not magically convert his work ... into maritime employment." (A. 106). On October 31, 1980, the Board affirmed, with one judge dissenting. ³ The majority held that Churchill failed to satisfy the status requirement of § 902(3), ruling that mere proximity to navigable water is not sufficient to convert the work of a construction worker into maritime commerce. Rather, the Board held, the work must have a "realistically significant relationship to maritime activities involving navigation and commerce over navigable waters." (A. 113). Rejecting Churchill's argument that unloading the barge was "indisputably" a longshoring activity, the Board held that Churchill "was a construction worker whose task of unloading the (caisson) was an incidental function to his job of constructing the substructure." (A. 115). Churchill now petitions for review.

II.

Churchill advances in this Court the argument of Appeals Judge Miller in his dissent below: (i) the claim would have been covered under the LHWCA before the 1972...