Jacksonville Shipyards, Inc. v. Perdue
| Decision Date | 27 September 1976 |
| Docket Number | 75-2833,75-2289,Nos. 75-1659,75-2317 and 75-4112,s. 75-1659 |
| Citation | 539 F.2d 533,1976 A.M.C. 1934 |
| Parties | JACKSONVILLE SHIPYARDS, INC., and Aetna Casualty & Surety Company, Petitioners, v. Herbert L. PERDUE and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents. JACKSONVILLE SHIPYARDS, INC., and Aetna Casualty & Surety Company, Petitioners, v. Charles W. SKIPPER and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents. P. C. PFEIFFER COMPANY and Texas Employers' Insurance Association, Petitioners, v. Diverson FORD and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents. HALTER MARINE FABRICATORS, INC., and Fidelity & Casualty of New York, Petitioners, v. John L. NULTY and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents. AYERS STEAMSHIP COMPANY and Texas Employers' Insurance Association, Petitioners, v. Will BRYANT and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents. |
| Court | U.S. Court of Appeals — Fifth Circuit |
J. Weldon Granger, Houston, Tex., for Diverson Ford.
Charles E. Lugenbuhl, Thomas J. Grace, New Orleans, La., E. D. Vickery, W. Robins Brice, Houston, Tex., John E. Houser, Jacksonville, Fla., for petitioners.
Marshall H. Harris, Assoc. Sol., Linda L. Carroll, U. S. Dept. of Labor, Washington, D. C., for respondents in 75-2317.
Edward A. White, Jacksonville, Fla., for Skipper.
Arthur L. Schechter, Houston, Tex., for Will Bryant.
William J. Kilberg, Solicitor of Labor, Laurie M. Streeter, Assoc. Sol., Joshua T. Gillelan, II, Atty., Ronald E. Meisburg, George M. Lilly, U. S. Dept. of Labor, Washington, D. C., for Dept. of Labor.
Petitions for Review of Orders of the Benefits Review Board, United States Department of Labor.
Before TUTTLE, THORNBERRY and TJOFLAT, Circuit Judges. *
The Parties and Their Dispute. With these five vigorously contested appeals, petitioners and respondents join battle for the third time. Each individually named respondent is a shoreside worker who was injured in the course of his employment. These respondents claim that their injuries are covered by the 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act (the Act), 33 U.S.C. §§ 901 et seq. (1970). In their fight for coverage, the workers have a new and virtually untested weapon, viz., those portions of the 1972 Amendments which expanded the scope of the Act. 1 They also have a powerful and articulate ally in the other respondent, the Director of the Office of Workers' Compensation Procedural History. In each of the cases, a preliminary skirmish was fought before an Administrative Law Judge. 3 Reports from these battlefields show mixed results; petitioners won three of the engagements, and respondents two. The theater of operations then shifted to the Washington, D.C., headquarters of the Benefits Review Board of the Department of Labor (the Board). 4 The Board adopted an extremely liberal view of the Act's coverage, and respondents swept to victory in all five cases. After losing the fight in Washington, D.C., petitioners chose to escalate the conflict by asking this Court to review the Board's decisions. 5
Programs of the United States Department of Labor (the Director). 2 The forces arrayed against respondents consist of the workers' employers and the employers' insurance carriers
The Issues on Appeal. Before this Court, the lines of battle have been drawn with admirable clarity and good sense. Both sides have declined to assume certain exposed legal positions where they would quickly fall prey to the enemy's fire. Thus, respondents concede that the five accidents would not have been covered by the pre-1972 Act. Similarly, petitioners concede that the 1972 Amendments have broadened the Act's scope to include some shoreside injuries. The issue which divides the two camps is, of course, whether the Act was expanded far enough to reach these five injuries. We hold that the Board properly awarded benefits to two workers who were handling maritime cargo on shore, as well as to a carpenter who was fabricating parts for a new ship. However, the Board misconstrued the Act in extending coverage to the other two respondents, a shipboard worker who stumbled in front of his employer's office a mile from the ship, and an employee who was helping to tear down a shed in a disused marine repair facility.
Not content with merely jousting over the scope of the revised Act, three of the petitioners have broken ranks to seek out other casus belli. The petitioners in the Halter Marine case argue that the Act is unconstitutional if it covers injuries to shipbuilders on shore. In Pfeiffer, we are told that the Board violated the petitioners' right to due process by the method in which it awarded a fee to the claimant's attorney. The Ayers Steamship petitioners enter the lists with a plan to split the enemy forces; they claim that the Director is not a proper respondent in these appeals. As will hereinafter appear, we reject all of these additional contentions.
Of the many changes which Congress made in the Act in 1972, we are here concerned with only one: the extension of the Act's coverage inland to reach certain maritime-related injuries. Under the prior Act, coverage was overwhelmingly situs-oriented. As a general rule, an employee's injury was compensable if it occurred "upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen's compensation proceedings may not validly Two of the Act's new sections are pertinent to the present appeals. 9 The first of these defines the status which the affected employee must occupy to bring his injury within the Act's coverage:
be provided by State law . . . ". 6 Interpretation of this provision was immensely complicated by a judicially created doctrine under which some "maritime but local" injuries could be covered by both state and federal compensation schemes. See, e. g., Calbeck v. Travelers Ins. Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962); Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942). However, the Supreme Court made it clear that, whatever the exact parameters of the "maritime but local" doctrine, the federal Act would generally be confined to injuries occurring over the waters. Thus, in Nacirema Operating Co. v. Johnson, 396 U.S. 212, 90 S.Ct. 347, 24 L.Ed.2d 371 (1969), the Court held that the Act did not cover injuries to longshoremen who were working on a pier permanently affixed to the shore. Coverage was denied despite the fact that the workers had been injured while loading and unloading ships, an employment as maritime in nature as any land-based employment could be. 7 The inequities of this "water's edge" division between covered and non-covered work were a major factor behind the decision to expand the scope of the Act. 8
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 . . . 33 U.S.C. § 902(3).
The other provision describes the situs where a covered injury must occur:
Compensation shall be payable under this chapter 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). Id. § 903(a).
From these statutes, the general thrust of the new Act's coverage is clear. Congress has replaced the old "water's edge" analysis with a two-part test which requires (1) that the claimant have been engaged in "maritime employment" and (2) that the injury have taken place upon the situs specified in the Act.
The Act's definition of "maritime employment" is the focus of most of the legal controversy which rages in the parties' voluminous briefs. Unfortunately, much of this learned debate is of little relevance, if We specifically reject a theory which petitioners in the Pfeiffer and Ayers Steamship cases advance as the proper rule for cargo handling operations. They claim that the Act's coverage depends upon whether cargo has reached its shoreside "point of rest", as that term is used in the maritime industry. 19 To these petitioners, men who are handling cargo on its way to a vessel are not covered by the Act until that cargo reaches its last marshaling area prior to being taken on board a ship. Similarly, under this theory men who are unloading cargo from ships are performing covered work only until they reach the first marshaling area for cargo on shore. We are unable to find any support for such a hypertechnical construction of the 1972 Amendments. 20 In our view, if Congress had wished to adopt the "point of rest" as the test for coverage, it would have made that intention clear. As it is, the "point of rest" analysis is to be found neither in the statute itself nor in the legislative history. The closest approach to such a test appears in the following passage from the House Report:
any, to the cases now before this Court. Counsel have drawn our attention to a host of pre-1972 decisions which discussed the meaning of the term "maritime employment" as used in the former Act. See, e. g., Pennsylvania R. R. v. O'Rourke, 344 U.S. 334, 73 S.Ct. 302, 97 L.Ed. 367 (1953); Nalco Chemical Corp. v. Shea, 419 F.2d 572 (5th Cir. 1969). Under the old Act, as under the present one, an employer was liable if he had one or more employees engaged in "maritime...To continue reading
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