Marine Stevedoring Corporation v. Oosting
| Decision Date | 20 June 1968 |
| Docket Number | No. 10060,10299,10298,10323.,10060 |
| Citation | 398 F.2d 900 |
| Parties | MARINE STEVEDORING CORPORATION, and Liberty Mutual Insurance Company, Appellants, v. Jerry C. OOSTING, Deputy Commissioner, United States Employees' Compensation Commission, Fifth Compensation District, Appellee. William H. JOHNSON, Appellant, v. John P. TRAYNOR, Deputy Commissioner, U. S. Department of Labor, and Nacirema Operating Co., Inc., a body corporate, Appellees. Julia T. KLOSEK, widow of Joseph J. Klosek, Deceased Employee, Appellant, v. John P. TRAYNOR, Deputy Commissioner, U. S. Department of Labor, and Nacirema Operating Co., Inc., a body corporate, Appellees. Albert AVERY, Appellant, v. Jerry C. OOSTING, Deputy Commissioner, United States Employees' Compensation Commission, Fifth Compensation District, and Liberty Mutual Insurance Company, Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
L. S. Parsons, Jr., Norfolk, Va. (John A. Field, III, and Parsons & Powers, Norfolk, Va., on brief), for appellants, Marine Stevedoring Corp. and Liberty Mutual Ins. Co.
Leavenworth Colby, Atty., Dept. of Justice (John W. Douglas, Asst. Atty. Gen., Morton Hollander, Atty., Dept. of Justice, on brief), for appellee, Oosting.
Jno. J. O'Connor, Jr., Baltimore, Md. (O'Connor & Preston, Baltimore, Md., on brief), for appellants, Johnson and Klosek.
Leavenworth Colby, Atty., Dept. of Justice (John W. Douglas, Asst. Atty. Gen., and David Rose, Atty., Dept. of Justice, on brief), for appellee, Traynor.
Randall C. Coleman, Baltimore, Md. (Thomas W. Jamison, III, Baltimore, Md., on brief), for appellee, Nacirema Operating Co., Inc.
Jacob Rassner, New York City, on brief for International Longshoremen's Assn. as amicus curiae.
Ralph Rabinowitz, Norfolk, Va. (Kelsey & Rabinowitz, Norfolk, Va., on brief), for appellant, Avery.
Leavenworth Colby, Atty., Dept. of Justice (John W. Douglas, Asst. Atty. Gen., and David Rose, Atty., Dept. of Justice, on brief), for appellee, Oosting.
William B. Eley, Norfolk, Va. (Rixey & Rixey, Norfolk, Va., on brief), for appellee, Liberty Mutual Ins. Co.
Before HAYNSWORTH, Chief Judge, and SOBELOFF, BOREMAN, BRYAN, WINTER, CRAVEN and BUTZNER, Circuit Judges, sitting en banc.
Certiorari Granted December 9, 1968. See 89 S.Ct. 444.
The common question presented by these cases consolidated for appeal1 is whether injuries sustained by four longshoremen while working on the docks and engaged in three separate loading operations are compensable under the Longshoremen's and Harbor Workers' Compensation Act of 1927, 33 U.S.C.A. § 901 et seq. In none of the cases are the facts in dispute; only the intended scope of the Act is contested.
In Marine Stevedoring v. Oosting, No. 10,060, a stevedoring company was under contract to handle the lines and cables in moving and mooring the S. S. JAMES E. HAVILAND. Vann, one of its employees, was lifting a cable off the stern bollard when it suddenly straightened, catapulting him off the pier and into the river where he drowned. Death benefits awarded by the deputy commissioner were affirmed by the District Court. 238 F.Supp. 78 (E.D.Va.1965).
In Nos. 10,298 and 10,299, Johnson and Klosek were members of a longshoremen's "gang" engaged in loading a cargo of steel beams aboard the S. S. BETHTEX, moored to the Bethlehem Steel High Pier, Sparrows Point, Maryland. They had been assigned to the pier to work as "slingers or hook-on men," and it was their job to board the railroad gondola cars used to carry the beams onto the pier and to fasten drafts to the ship's crane in preparation for loading. At the time of the accident, as the crane raised a draft out of the car, it began to rotate. One end of the draft caught Klosek, lifted him from the car and dropped him head first onto the pier, killing him, while the other end struck Johnson and crushed him against the side of the car. The deputy commissioner denied the claim brought by Klosek's widow and also the claim submitted by Johnson, who had sustained disabling injuries. The District Court affirmed, holding that the injuries had not occurred within the jurisdictional scope of the statute. 243 F.Supp. 184 (D.Md. 1965).
Like Klosek and Johnson, Avery, in No. 10,323, was working as a slinger in a gondola car attaching drafts of logs to a ship's crane for loading. He too was severely injured when a swinging draft pinned him against the side of the car. For the same reasons as in Klosek and Johnson, he was denied relief under the Longshoremen's Compensation Act. The District Court affirmed.
Each of the injured men was a member of a "gang" of approximately twenty assigned by his employer to work on a particular vessel. As was the practice at the ports where these injuries occurred, the entire gang reported to the vessel and two to four of the men were then ordered back onto the pier to work as "slingers or hook-on men" during the loading operation.2 The job performed by the men on the pier is basically the same as the work done by their fellow longshoremen on board. Indeed, it is not uncommon for the men to rotate positions and continually pass back and forth between ship and wharf during a given operation. Indisputably, at the time of each accident the injured longshoremen were engaged in maritime employment on a high pier at a point several hundred feet from shore. Further, it has been stipulated that the piers in question extended into navigable waters and were sufficiently high to permit the passage of small boats and barges under them.
The Longshoremen's and Harbor Workers' Compensation Act provides in relevant part that:
The issue before us is whether an injury on a pier falls within the jurisdictional provision "upon the navigable waters," and thus within the coverage of the Act.
The answer is found in part in the history of this legislation. Ten years before the passage of the Act, the Supreme Court held that longshoremen injured on vessels or on gangplanks between vessels and piers were exclusively within federal maritime jurisdiction and thus barred from recovery under state compensation acts. Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917); Clyde S. S. Co. v. Walker, 244 U.S. 255, 37 S.Ct. 545, 61 L.Ed. 1116 (1917). Subsequent efforts by Congress to extend the benefits of existing state acts to maritime injuries were struck down as unconstitutional delegations of the legislative powers of Congress.3 Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834 (1920); State of Washington v. W. C. Dawson & Co., 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 646 (1924). In its third attempt to provide compensation for the yet uncovered longshoremen, Congress in 1927 enacted the Longshoremen's Compensation Act.4
Denominated "an act to provide compensation for disability or death resulting from injuries to employees in certain maritime employment," 44 Stat. 1424, the Act embodies a comprehensive compensation plan for all longshoremen engaged in "loading, unloading, refitting, and repairing ships," on navigable waters. S.Rep. No. 973, 69th Cong., 1st Sess., p. 16. As originally drafted, the bill provided coverage for injuries "on a place within the admiralty jurisdiction of the United States, except employment of local concern and no direct relation to navigation or commerce." S. 3170 & H. R. 9498. Although enthusiastic about its general objectives, representatives of both the unions and the shipping industry uniformly voiced dissatisfaction with the bill's jurisdictional provison. At the Committee hearings, a union spokesman pointed out that as originally drawn, the effect of the bill would necessarily be harmful to repairmen and longshoremen who continually pass back and forth between state and federal jurisdiction, each exclusive of the other. Hearings on S. 3170, Senate Judiciary Committee, 69th Cong., 1st Sess., March 16 and April 2, 1926, pp. 29-31. In the same vein, spokesmen for the shipping industry complained that the bill was not sufficiently inclusive and urged that the final bill "include all maritime employment under the admiralty jurisdiction." Senate Hearings, pp. 95-101. A representative of the Labor Department also appeared and testified that Congress had sufficient power to enact a compensation statute that would extend to all injuries to maritime workers occurring "on the dock, on the bridge and in the ship," and on behalf of the department argued for an amendment to the bill that would provide "coverage of the contract and not coverage of the men in one spot, performing one part of the contract." Senate Hearings, pp. 40-41.
The lone dissident voice was that of the International Association of Industrial Accident Boards and Commissions, author of the pending bill and the Acts previously declared unconstitutional. It sought to maintain the limited scope of the bill, leaving as much as was constitutionally permissible to the states.
At the conclusion of the hearings, the bill was revised and submitted to Congress in its present form. While no further explanation of the various revisions is to be found in either the committee reports or congressional debates, it is certainly reasonable to infer that the modifications represent an acquiescence in the broader coverage sought by almost all witnesses and, consequently, a rejection of the narrow jurisdictional position espoused by the IAIABC.
Beyond question, Congress could constitutionally ground jurisdiction on the function or status of the...
To continue reading
Request your trial
-
I.T.O. Corp. of Baltimore v. Benefits Review Bd., U.S. Dept. of Labor
...knocked into the water and drowned was able to recover. (Her case was not taken to the Supreme Court.) See Marine Stevedoring Corporation v. Oosting, 398 F.2d 900 (4 Cir. 1968). See also the dissenting opinion of Chief Judge Haynsworth in Oosting commenting on incongruities in application o......
-
Pittston Stevedoring Corp. v. Dellaventura
...have existed had they been hurled into the water, Marine Stevedoring Corp. v. Oosting, 238 F.Supp. 78 (E.D.Va.1965), aff'd, 398 F.2d 900 (4 Cir. 1968) (en banc), 11 or injured on deck while performing part of the same operation, Calbeck v. Travelers Ins. Co., 370 U.S. 114, 82 S.Ct. 1196, 8 ......
-
United States v. Crow, Pope & Land Enterprises, Inc.
...Id., 344 F.2d at 596. This synopsis of Appalachian has been cited with approval and followed by the courts in Marine Stevedoring Corp. v. Oosting, 398 F.2d 900, 908 (4th Cir. 1968) reversed on other grounds, 396 U.S. 212, 90 S.Ct. 347, 24 L.Ed.2d 371 (1969); Spiller v. Thomas M. Lowe and As......
-
Gebhard v. SS Hawaiian Legislator
...an alternate ground of decision relied on the Extension Act to expand coverage under the Longshoremen's Act. Marine Stevedoring Corp. v. Oosting, 398 F.2d 900, 906 (4th Cir. 1968). Judge Sobeloff suggested that the alternative to so construing the Longshoremen's Act was the toleration of a ......