Kollias v. D & G Marine Maintenance

• Decision Date: 06 July 1994
• Docket Number: D,741,Nos. 567,s. 567
• Citation: 29 F.3d 67
• Parties: Spyridon KOLLIAS, Petitioner, v. D & G MARINE MAINTENANCE, State Insurance Fund, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents. B & A MARINE CO. and State Insurance Fund, Petitioners, v. Eleftherios GOUVATSOS and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents. ockets 89-4114, 92-4109.
• Court: U.S. Court of Appeals — Second Circuit

Page 67

29 F.3d 67

63 USLW 2044

Spyridon KOLLIAS, Petitioner, v. D & G MARINE MAINTENANCE, State Insurance Fund, and Director, Office of Workers' Compensation

Programs, United States Department of

Labor, Respondents.

B & A MARINE CO. and State Insurance Fund, Petitioners, v. Eleftherios GOUVATSOS and Director, Office of Workers'

Compensation Programs, United States Department of

Labor, Respondents.

Nos. 567, 741, Dockets 89-4114, 92-4109.

United States Court of Appeals Second Circuit.

Argued Oct. 21, 1993.

Decided July 6, 1994.

Bernard Rolnick, New York City (Jane R. Goldberg, Philadelphia, PA, of counsel), for Spyridon Kollias.

Joshua T. Gillelan, II, Office of the Sol., U.S. Dept. of Labor, Washington, DC (Thomas S. Williamson, Jr., Sol. of Labor, Carol A. De Deo, Associate Sol., U.S. Dept. of Labor, of counsel), for Director, OWCP.

Richard A. Cooper, New York City (Amy Levitt, Martin Krutzel, Fischer Brothers, Bernard Rolnick, New York City, Jane R. Goldberg, Philadelphia, PA, of counsel), for D & G Marine Maintenance, State Ins. Fund and B & A Marine Co.

Before: MESKILL, PIERCE and MAHONEY, Circuit Judges.

MESKILL, Circuit Judge:

These petitions for review require us to determine whether the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. Secs. 901-950, applies to injuries sustained on the high seas. In Docket No. 89-4114 (Kollias case), petitioner Spyridon Kollias petitions for review of a final order of the Benefits Review Board (Board) denying his claim for LHWCA benefits. The Board based its denial of benefits on the ground that Kollias' injury had occurred on the high seas, which is not a statutorily covered situs as defined in the coverage provision of the LHWCA, 33 U.S.C. Sec. 903(a) (section 3(a)). In Docket No. 92-4109 (Gouvatsos case), petitioner B & A Marine Co. (B & A Marine) petitions for review of a final order of the Board granting LHWCA benefits to B & A Marine's employee, respondent Eleftherios Gouvatsos. The Board granted Gouvatsos' claim for benefits on the ground that Gouvatsos' injury, which had occurred on the high seas, was covered by the LHWCA because the phrase "navigable waters of the United States" in section 3(a) includes the high seas. We grant Kollias' petition and reverse the Board's denial of benefits; we deny the petition in the Gouvatsos case and affirm the Board.

BACKGROUND

Kollias Case

Kollias, an employee of respondent D & G Marine Maintenance (D & G Marine), was injured while working as a repairman on the T.T. WILLIAMSBURGH (WILLIAMSBURGH). Kollias' injury occurred during a voyage from Galveston, Texas, to Long Beach, California. At the time of the injury, the WILLIAMSBURGH was on the high seas, which have been defined as those waters beyond the territorial waters of the United States, which extend three miles from the coast. See Moragne v. States Marine Lines, 398 U.S. 375, 397-98, 90 S.Ct. 1772, 1786, 26 L.Ed.2d 339 (1970); United States v. Hilton, 619 F.2d 127, 131 n. 1 (1st Cir.), cert. denied, 449 U.S. 887, 101 S.Ct. 243, 66 L.Ed.2d 113 (1980); Cove Tankers Corp. v. United Ship Repair, 528 F.Supp. 101, 105 (S.D.N.Y.1981) (Cove Tankers I ), aff'd on other grounds, 683 F.2d 38 (2d Cir.1982) (Cove Tankers II ). After Kollias' injury, the WILLIAMSBURGH made an unscheduled stop in Curacao and traveled through the territorial waters of other foreign nations on an unscheduled basis.

Kollias sought compensation for his injury from D & G Marine pursuant to section 4(a) of the LHWCA, which provides that "[e]very employer shall be liable for and shall secure the payment to his employees of the compensation payable under [the LHWCA]." 33 U.S.C. Sec. 904(a). D & G Marine's compensation insurer, State Insurance Fund (Fund), was also a party to the action.

After a hearing, an administrative law judge (ALJ) of the United States Department of Labor denied Kollias' claim on the ground that Kollias' injury had not occurred on a covered situs, which is defined in section 3(a) as "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, dismantling, or building a vessel)." The parties did not dispute that Kollias met the LHWCA's status requirement, that is, that he satisfied the statutory definition of "employee." 33 U.S.C. Sec. 902(3) (section 2(3)). Although the ALJ made no factual findings with respect to Kollias' citizenship, the WILLIAMSBURGH's country of registry, or the location of D & G Marine, the parties appear to agree that Kollias is a New York resident, D & G Marine is based in New York, and the WILLIAMSBURGH is an American flag ship. We will assume, without deciding, that these representations are accurate.

Kollias appealed to the Board, which affirmed. In its decision, the Board noted that Kollias had received state workers' compensation benefits paid voluntarily by D & G Marine and that the parties had agreed that state workers' compensation coverage would be available to Kollias if he were not covered under the LHWCA.

Kollias then filed a petition for review in this Court. This Court received full briefing and heard oral argument on May 31, 1990. The Court then remanded the case to the Board for further factual findings and retained jurisdiction. 909 F.2d 1473. The questions put to the Board were: (1) was the WILLIAMSBURGH's stop in Curacao unscheduled, and (2) did the WILLIAMSBURGH travel or was it scheduled to travel through other foreign territorial waters. After the Board provided answers to these questions, the parties submitted supplemental briefs relating to the new findings and presented further oral argument on October 21, 1993. The Director of the Office of Workers' Compensation Programs of the Department of Labor (Director), who is charged by the Secretary of Labor with administering the LHWCA, has participated in the Kollias case in this Court as a respondent and supports Kollias' position.

Gouvatsos Case

Gouvatsos, an employee of B & A Marine, a New York ship repair company, was injured while working as a repairman and supervisor on the AMOCO CREMONA, a ship of Bermudian registry. At the time of Gouvatsos' injury, the AMOCO CREMONA was on the high seas during a return voyage from Bagaritos, Mexico, to Galveston Roads, Texas. The record does not reveal Gouvatsos' citizenship or residence, but the Director represents that Gouvatsos is American. For purposes of this case, we assume that this representation is accurate.

Gouvatsos sought compensation for his injury from B & A Marine pursuant to the LHWCA. The Fund, B & A Marine's compensation insurer, was an additional party to the action. The parties agreed that the sole issue presented by Gouvatsos' claim was whether his injury had occurred on a statutorily covered situs for purposes of section 3(a) of the LHWCA. After receiving written submissions, an ALJ of the Department of Labor granted Gouvatsos' claim for benefits. B & A Marine and the Fund appealed to the Board, which affirmed. B & A Marine and the Fund then petitioned for review in this Court. The Director has participated in the case in this Court as a respondent and supports Gouvatsos' position.

Issues on Appeal

The Director and the claimants generally contend that the LHWCA applies to the high seas and, therefore, provides a remedy for the claimants' injuries. More specifically, they assert that the presumption against extraterritorial application of statutes does not bar the application of the LHWCA to the high seas in these cases. ¹ In addition, the Director argues that its construction of the LHWCA is entitled to deference. The employers and the Fund (collectively "the employers") contend, on the other hand, that the presumption against extraterritoriality precludes the application of the LHWCA to the high seas and that the Court should not defer to the Director's interpretation of the jurisdictional scope of the statute.

DISCUSSION

I. Presumption Against Extraterritoriality

The claimants' and Director's contentions that the claimants are entitled to relief under the LHWCA rest on the premise that the LHWCA may be applied extraterritorially, that is, beyond the territorial jurisdiction of the United States. According to recent Supreme Court pronouncements, however, we must presume that Congress intended its enactments to apply only within the territorial jurisdiction of the United States, unless the legislation reflects a contrary intent. See Smith v. United States, --- U.S. ----, ----, 113 S.Ct. 1178, 1181, 122 L.Ed.2d 548 (1993); EEOC v. Arabian Amer. Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227, 1230, 113 L.Ed.2d 274 (1991) (Aramco ). The presumption against extraterritorial application of statutes embodies several important policies. For example, it "protect[s] against unintended clashes between our laws and those of other nations which could result in international discord." Aramco, 499 U.S. at 248, 111 S.Ct. at 1230. Moreover, the presumption recognizes that Congress "is primarily concerned with domestic conditions." Foley Bros. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 577, 93 L.Ed. 680 (1949). Accordingly, "[w]e assume that Congress legislates against the backdrop of the presumption against extraterritoriality." Aramco, 499 U.S. at 248, 111 S.Ct. at 1230.

A. Applicability of the Presumption

We must begin our analysis by considering whether the presumption against extraterritoriality applies at all with respect to the LHWCA. The Director and Kollias assert a host of arguments against the applicability of the presumption in this context. None of these arguments is persuasive.

First, the Director and Kollias contend that neither of the two primary considerations underlying the presumption--avoidance of international discord and Congress' focus on domestic matters--is implicated here. See Aramco, 499 U.S. at 248, 111 S.Ct at...