Dravo Corp. v. Maxin, 75-2403
| Citation | 545 F.2d 374 |
| Decision Date | 15 November 1976 |
| Docket Number | No. 75-2403,75-2403 |
| Parties | DRAVO CORPORATION and Liberty Mutual Insurance Company, Petitioners, v. Louis MAXIN and United States Department of Labor, Benefits Review Board, Respondents, The Director, Office of Workers' Compensation Programs, U. S. Department of Labor, Party-Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Before VAN DUSEN, HUNTER and WEIS, Circuit Judges.
This is a petition by an employer to review an October 20, 1975, decision (100a-104a) of the Benefits Review Board (BRB), United States Department of Labor, affirming the decision of the administrative law judge that the claimant, Louis Maxin, was covered by the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), as amended in 1972. 1 Although Judge Gibbons stated in his recent opinion in Sea-Land Service, Inc., et al. v. Director, etc., and Wallace C. Johns, 540 F.2d 629, Opinion of Aug. 5, 1976 (3d Cir.) (hereinafter Johns ), which involved a claimant allegedly engaged in longshoring operations, that the above 1972 Amendments "manifest an unmistakable congressional intention to afford federal coverage for injuries occurring in areas inland of the navigable waters of the United States," 2 id. at 634, this case is the first time that we have considered whether Congress could constitutionally extend the coverage of the LHWCA to land based workers in the shipbuilding industry. We affirm the October 20, 1975, decision of the BRB.
There is little dispute concerning the essential facts. The claimant, Louis Maxin, is an employee of Dravo Corporation (hereinafter "Dravo") who, on October 29, 1973, sustained an injury resulting in below-knee amputations of both legs while working for Dravo's Engineering Works Division (EWD) at its plant on Neville Island near Pittsburgh, Pennsylvania. At the time of his injury, Maxin was working in the Neville Island structural steel shop, his usual place of employment, burning steel plates which would ultimately become bottoms and decks of barges fabricated by Dravo at the Neville Island facility.
Neville Island is located in the Ohio River, a navigable waterway. The plant is closest to the southern shore of the river and generally extends towards the north. The main stream of the river is on the north side of the facility. On the south side is a lesser stream called the back channel. The entire facility is split north and south by Grand Avenue, a public thoroughfare. On the north side of Grand Avenue are the marine ways, boat yards, barge shop and other facilities of the EWD. On the south side of Grand Avenue are the structural shop and other facilities of the EWD (as well as the separate facilities of the Sand and Gravel Division), extending to the back channel which is navigable for most of its length. Historically, certain areas of the plant have always been considered by the parties to be subject to the jurisdiction of the LHWCA. This area includes the marine ways and the launching ways immediately adjacent to the water's edge on the north side. EWD designs and builds large tow boats, barges, steelmill equipment, and power plant equipment.
In addition to the structural shop, eight major areas of the Neville Island facility can be identified as connected with boat building or repair. The enclosed structural shop is about 2000 feet from the north channel of the river. In the structural shop, pre-assembly components of all types, including those of barges, towboats, damlocks, engine foundations, etc., are carried out. Some of the components such as "rake ends" range from 40 to 60 feet in width and 20 feet in length. Components fabricated in the structural shop are transported on rail cars to other areas for assembly. The major raw material used in the construction of vessels is steel. The majority of the steel is delivered to a storage area adjacent to the structural shop by truck or rail car. It is then brought into the structural shop as needed, where it is shaped, cut, punched and welded to the desired configuration.
In addition to marine construction, pelletizing machines and "feeders," which are used in handling iron ore and in making steel, are also built in the structural shop. No other areas in the facility beside the structural shop are used for other than marine fabrication. During the previous 12-month period, about eight pelletizing units were built. In that same period, about 300 barges and towboats were constructed. The employees in the structural shop may spend 15% of their time on non-marine work and 85% on marine work. 90% of the raw steel delivered to the shop finds its way into the marine products. The employees are assigned as needed; they do not specialize in either marine or non-marine work. Grand Avenue generally separates the structural shop from the pre-assembly and final assembly areas. To the extent that employees in the structural shop may be assigned to non-shipbuilding activities, the assignments are incidental and sporadic as the needs of the moment dictate. There is no delineation of labor between shipbuilding and non-shipbuilding functions (for example, the manufacture of pelletizing machines and "feeders").
On this appeal, Dravo raises a number of contentions challenging the award made to the claimant, as follows:
I. The Congress could not constitutionally extend coverage under the LHWCA landward to employees working in new ship construction.
II. Maxin, as a burner employed in metal fabrication at a preliminary stage of boat building, was not a shipbuilder or maritime employee within the meaning of the 1972 Amendments.
III. The injury did not take place at a situs within the landward extension
of the 1972 Amendments.
The 1972 Amendments extended the coverage of the earlier Longshoremen's and Harbor Workers' Compensation Act of 1927 (hereinafter "1927 Act") landward to employees "engaged in maritime employment" who were already covered by the 1927 Act while working upon navigable waters. Sea-Land v. Johns, supra at 636-637. Prior to the enactment of the 1972 Amendments, the Supreme Court had clearly indicated in a number of opinions that the coverage of the 1927 Act, ending at the water's edge, was not coterminous with the full geographical extent of the limits of maritime jurisdiction. See, e. g., Nacirema Operating Co. v. Johnson, 396 U.S. 212, 223-24, 90 S.Ct. 347, 24 L.Ed.2d 371 (1969). This history has already been extensively reviewed in a recent opinion of this Circuit, see Johns, supra at 636, deciding that, in a case such as this, Congress' landward extension of the LHWCA's coverage was authorized by the United States Constitution ().
The revised definition of "employee" in 33 U.S.C. § 902(3), as amended (§ 2(a) of P.L. 92-576, which contains the 1972 Amendments), 3 provides:
"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."
(Emphasis supplied.)
We note that although new ship construction contracts and the vessel itself until launched have been held traditionally not to be a subject of maritime jurisdiction, North Pacific S.S. Co. v. Hall Brothers Marine Ry. & Shipping Co., 249 U.S. 119, 39 S.Ct. 221, 63 L.Ed. 510 (1919); The General Smith, 17 U.S. (4 Wheat.) 438, 4 L.Ed. 609 (1819), shipbuilding employees were covered under the LHWCA prior to the 1972 Amendments if they were injured while working on new vessels under construction and afloat upon navigable waters. E. g., Calbeck v. Travelers Insurance Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962). This case, therefore, is not one that involves extension of the LHWCA to a class of employees who were entirely outside of the Act's coverage prior to 1972. As stated in Johns, supra at 637:
"(T)he dominant purpose of the 1972 Amendment in extending the Act's coverage to areas previously left to the states was to make more uniform the death and disability compensation system for maritime employees so that maritime workers would no longer walk into federal coverage and out of state coverage, and vice versa, in the course of a day's work."
(Emphasis supplied.)
The reasoning of Judge Gibbons in Johns and the result in Calbeck support our conclusion that a landward extension of the LHWCA to shipbuilding employees such as Maxin was a constitutional exercise of Congress' Article III power.
Our conclusion is reinforced by the consideration that when, on a number of other occasions, the Congress altered the substantive rules of maritime law or enlarged the classes of cases falling within the admiralty and maritime jurisdiction itself, the Supreme Court of the United States has sustained the congressional determination. 4 In Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21, 55 S.Ct. 31, 79 L.Ed. 176 (1934), the Supreme Court discussed Congress' authority to confer admiralty and maritime jurisdiction on the federal courts in classes of cases which had previously been held by the Court to be outside the jurisdiction:
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