I. T. O. Corp. of Baltimore v. Benefits Review Bd., U.S. Dept. of Labor

• Decision Date: 26 August 1976
• Docket Number: 75-1075,Nos. 75-1051,75-1196 and 75-1088,s. 75-1051
• Citation: 542 F.2d 903
• 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 Longshoremen'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

Page 903

542 F.2d 903

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 Longshoremen'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.

Nos. 75-1051, 75-1075, 75-1196 and 75-1088.

United States Court of Appeals Fourth Circuit.

Argued May 4, 1976.

Decided Aug. 26, 1976.

David R. Owen, Baltimore, Md. (Francis J. Gorman, Semmes, Bowen & Semmes, Baltimore, Md., on brief), for Liberty Mut. Ins. Co.

John B. King, Jr., Norfolk, Va. (Vandeventer, Black, Meredith & Martin, Norfolk, Va., on brief), for Maritime Terminals and Aetna Cas. and Surety Co.

Donald A. Krach, Baltimore, Md. (William C. Stifler, III, Paul B. Lang, Niles, Barton & Wilmer, Baltimore, Md., Thomas D. Wilcox, Washington, D. C., on brief), for Nat. Ass'n of Stevedores.

Linda L. Carroll, Atty., Washington, D. C. (William J. Kilberg, Sol. of Labor, Marshall H. Harris, Associate Sol., George M. Lilly, Karen L. Gilbert, Attys., U. S. Dept. of Labor, Washington, D. C., on brief), Amos I. Meyers, Baltimore, Md. (Terry Paul Meyers, Baltimore, Md., on brief), Charles S. Montagna, Norfolk, Va., for respondents.

Thomas W. Gleason, Jr., New York City (Herzl S. Eisenstadt, Richard H. Kapp, New York City, on brief), for International Longshoremen's Ass'n, AFL-CIO as amicus curiae.

Before HAYNSWORTH, Chief Judge, and WINTER, CRAVEN, BUTZNER, RUSSELL and WIDENER, Circuit Judges, in banc.

WINTER, Circuit Judge:

These consolidated appeals present two major questions: (1) the extent of coverage of the 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901 et seq. (sometimes "LHWCA"), to persons engaged in the 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, sustained in the process, only under state law; and (2) whether, in a petition for review under 33 U.S.C. § 921(c), the Director, Office of Workers' Compensation Programs, Department of Labor, is a proper respondent. The appeals were first heard and decided by a divided panel of the court. I. T. O. Corp. v. Benefits Review Bd., 529 F.2d 1080 (4 Cir. 1975). Chief Judge Haynsworth and I, comprising the majority, held that during the loading and unloading process the coverage of the Act extended to the first (last) point of rest. As applied to the facts, this holding resulted in the conclusion that none of the three claimants was entitled to benefits. Judge Craven was of a contrary view. He would have held that the three claimants were engaged in maritime employment on navigable waters of the United States, as defined in the Act, and hence they should be entitled to benefits under the Act for their accidental injuries. The panel was unanimous in deciding that the Director was not a proper respondent, although it was recognized that, in a proper case, he might be permitted to become an intervenor.

Because of the importance and novelty of the questions decided, the entire court granted cross-petitions for rehearing and reheard the appeals in banc. At the time the appeals were reargued, the in banc court consisted of six judges.

I.

On the issue of the extent of the Act's coverage, Chief Judge Haynsworth, Judge Russell and I subscribe to the views expressed in the majority panel decision. Judge Widener subscribes to the principle expressed in that opinion, although he defines the exact point between coverage and non-coverage somewhat differently.

In his application of the principle, Judge Widener concludes that the claimant Adkins is not covered by the Act, but that claimants Brown and Harris are covered. He reasons that the test of coverage is whether an otherwise eligible employee is injured while engaged in loading or unloading a ship; coverage would not extend to activities for transshipment of goods removed from a ship or goods destined for a ship. In Adkins' case, a container was removed from the ship and stored in the marshaling area. From there the container was moved to a shed where it was stripped and the contents were stored. Adkins was injured when he was moving the contents from the storage area onto a waiting delivery truck. The cargo was no longer being unloaded from the ship but was in the process of being loaded into a delivery truck. Adkins, in Judge Widener's view, was thus not covered because he was not participating in the unloading process; he was handling the goods for transshipment. Accordingly, Judge Widener concurs in the judgment of Chief Judge Haynsworth, Judge Russell and me to reverse Adkins' award.

In Brown's case, the cargo was brought from somewhere inland and deposited in a warehouse. Brown, operating a forklift, picked up cargo and stuffed it into a container. While stuffing the container, Brown was injured. When the stuffing would have been completed, a hustler would have carried the container to the marshaling area, and from there the container would have been taken to the pier to be loaded on board. Thus, in Judge Widener's view, Brown was engaged in the overall process of loading the ship. The cargo was not merely being moved to storage for convenience or facility; the cargo was in the process of being loaded on board ship, and Brown was engaged in the loading process. Accordingly, Judge Widener concurs in the judgment of Judge Craven and Judge Butzner to sustain the award made to Brown.

Harris was a hustler who was injured while he was taking a container, stuffed with goods which had been stored after inland delivery, from the stuffing area to the marshaling area. From the marshaling area, the container would have been taken to the pier where it would have been loaded on board. The goods were being moved solely for loading purposes, not for mere convenience, and therefore, in Judge Widener's view, Harris, like Brown, was engaged in the overall process of loading the ship. Accordingly, Judge Widener concurs in the judgment of Judge Craven and Judge Butzner to sustain the award made to Harris.

Judge Craven and Judge Butzner subscribe to the views expressed by Judge Craven in his dissenting panel opinion, and for those reasons and the additional reasons expressed by Judge Butzner in his separate opinion attached hereto, they vote to affirm the awards made to Adkins, Brown and Harris.

By the majority votes of Chief Judge Haynsworth, Judge Russell, Judge Widener and me, the award to Adkins (Nos. 75-1051 and 75-1088) is reversed. By an equally divided court, the awards to Brown and Harris (Nos. 75-1075 and 75-1196) are affirmed.

II.

On the issue of whether the director is a proper respondent, an issue raised only in Nos. 75-1051 and 75-1088, Chief Judge Haynsworth, Judge Russell, Judge Widener and I subscribe to the views expressed in the majority panel decision as hereafter amplified. Judge Craven and Judge Butzner subscribe to the views expressed in Judge Butzner's separate opinion attached hereto.

III.

Chief Judge Haynsworth, Judge Russell, Judge Widener and I amplify our conclusion that the Director is not a proper respondent as follows:

Prior to the 1972 Amendments, the Act provided for judicial review by an injunction suit against the deputy commissioner making a compensation award. The pertinent part of 33 U.S.C. § 921(b) (1970), as amended, 33 U.S.C. § 921(c) (1976 Supp.), provided:

If not in accordance with law, a compensation order may be suspended or set aside, in whole or in part, through injunction proceedings, mandatory or otherwise, brought by any party in interest against the deputy commissioner making the order, and instituted in . . . the judicial district in which the injury occurred . . . .

One of the 1972 Amendments revised § 921 so that subsection (c), the counterpart of the previous subsection (b), now provides:

Any person adversely affected or aggrieved by a final order of the Board may obtain a review of that order in the United States Court of Appeals for the circuit in which the injury occurred, by filing in such court . . . a written petition praying that the order be modified or set aside. A copy of such petition shall be forthwith transmitted . . . to the Board, and to the other parties, and thereupon the Board shall file in the court the record in the proceedings . . . .

Certainly the deputy director was a party to pre-1972 litigation, but neither he nor his counterparts is expressly designated as a party by the 1972 Amendments. The legislative history is unenlightening as to the reason for this omission. While it is true that old § 921a ¹ provided that the United States Attorney would represent the Secretary or the Deputy Commissioner in any court proceedings under old § 921, and that § 921a was continued by the 1972 Amendments although modified to permit the Secretary to appoint his own counsel, ² the legislative history is again unenlightening. To conclude from the mere existence of new § 921a that the Secretary, or his designee, the Director, is automatically a party to a review proceeding is to beg the question. This section's existence can as well mean only that if otherwise made a party, e. g., by intervention in a review proceeding, the Secretary or Director will be represented by attorneys appointed by him.

Indeed, § 939(c)(1), added by the 1972 Amendments, suggests the latter reading. It provides that "(t)he Secretary may, upon request, provide persons covered by this chapter with legal assistance in processing a...