Ramos v. Universal Dredging Corp.

• Decision Date: 17 August 1981
• Docket Number: 79-7285 and 79-7302,Nos. 79-7257,s. 79-7257
• Citation: 653 F.2d 1353
• Parties: Raymond C. RAMOS, Petitioner, v. UNIVERSAL DREDGING CORPORATION, Industrial Indemnity Company, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1353

653 F.2d 1353

Raymond C. RAMOS, Petitioner, v. UNIVERSAL DREDGING CORPORATION, Industrial Indemnity Company, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.

Nos. 79-7257, 79-7285 and 79-7302.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 24, 1981.

Decided Aug. 17, 1981.

Mark C. Walters, U.S. Dept. of Labor, Washington, D.C., argued, for petitioner; Benjamin L. Carroll, III, McKenzie, Trecker & Fritz, Honolulu, Hawaii, on brief.

John A. Roney, Stubenberg, Shegemura, Roney & Gniffke, Honolulu, Hawaii, for respondents.

On Petition for Review of Order of Benefits Review Board.

Before KILKENNY, SNEED and FARRIS, Circuit Judges.

KILKENNY, Circuit Judge:

Ramos and the Director, Office of Workers' Compensation Programs, United States Department of Labor (Director) both petition for review of an order of the Benefits Review Board (Board) which vacated an award of an Administrative Law Judge (ALJ) under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA or Act), 33 U.S.C. § 901 et seq., and remanded to dismiss for lack of subject matter jurisdiction.

BACKGROUND

Ramos was employed by Universal Dredging Corporation (Universal) as a deck hand on the Dredge EXPLORER. The dredge was being used in connection with the construction of a reef runway of the Honolulu International Airport, which extended into Hickam Harbor and Keehi Lagoon. The dredge, located some distance from the shore, had no motor for transportation. Its function is to scoop soil, rock, coral, and other ocean floor material and pump the material through pipes to the levee. We can assume that Ramos' job duties included keeping the deck clean, checking the fuel level for the next shifts, inspecting the pipes for leaks, removing stones that might jam the machinery, and supplying general maintenance to the dredge.

Ramos was injured while working on the dredge in late September and early October, 1975. He filed claims for benefits under the Act and Universal voluntarily paid those claims for temporary total disability until August, 1977. At that time, the parties could not agree on continued compensation and the case was transferred to the ALJ for a formal hearing. Her decision, which can be termed both findings and conclusions, states, among other things, the following:

"The issues here under consideration are: (1) whether the Claimant was a 'member of the crew' of a vessel excluded from coverage at the time of his injury; and, (2) the nature and the extent of injury."

Her findings recite that the dredge was in navigable waters, that the activity was maritime employment and that the parties so agreed. She also found that the injuries occurred during and in the course of employment. Her decision and order filed July 10, 1979, found that Ramos was: (1) not a "member of the crew" of a vessel excluded from coverage; (2) permanently disabled, and (3) entitled to compensation. Ramos appealed the failure of the ALJ to award attorney fees and 10% additional compensation under 33 U.S.C. § 914(e). Universal appealed urging, among other things, that the ALJ erred in finding that Ramos was not a member of the crew of the vessel. The Director filed a brief and presented oral argument in response to Universal's petition for review.

Later, in a two to one decision, the Board vacated the ALJ's award. The Board decided that issues presented by §§ 902(3) (whether plaintiff was an "employee") and 903(a) (whether the injury occurred upon navigable waters) presented issues of subject matter jurisdiction, rather than issues of "coverage." These were issues that could not be waived and the Board was required to raise them on its own motion. It found that the claimant was not a "harbor worker" because the reef runway under construction was not a "harbor facility" and that Ramos was not engaged in "maritime employment" because his work did not have a "realistically significant relationship to navigation and commerce on navigable waters."

ISSUE

We have concluded that the only issue necessary to be decided is whether the Board erred when it concluded that it did not have subject matter jurisdiction.

DISCUSSION

The majority in the Board's decision makes it clear that it did not reach the merits, but concluded that it lacked subject matter jurisdiction. We quote from it:

"We will not address the issues raised in these appeals as we have determined that, regardless of the disposition of the issue of claimant's status as a member of the crew, the award must be vacated for lack of subject matter jurisdiction. The record clearly reveals that claimant was not engaged in maritime employment under the Act." (Emphasis added.)

The decision concludes with the language:

"Accordingly, the award is vacated and the case is remanded to the Office of Administrative Law Judges with instructions to dismiss for lack of subject matter jurisdiction."

The 1972 Amendment under scrutiny, § 903(a) of the Act, reads:

"(a) 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).... (The portion in parentheses was added by the 1972 Amendments).

Section 902(3) of the amended Act describes the class of workers covered as follows:

"(3) 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."

The portion underlined was added by the 1972 Amendments. An employer is defined to mean:

"The term 'employer' means an employer any of whose employees are employed in maritime employment, in whole or in part, 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)." § 902(4) of the Act.

The majority obviously confused subject matter jurisdiction with personal coverage under the Act. There is no question but that the injury to appellant occurred on navigable waters of the United States.

Although the Board disclaimed a consideration of the issues of fact raised before the ALJ, in fact it rather fully discussed the issues and arrived at the ultimate conclusion that since the claimant was not engaged in maritime employment under § 2(3), the case had to be dismissed for lack of subject matter jurisdiction.

CONSTITUTIONALITY OF THE 1972 AMENDMENTS

Intertwined with the principal issue of subject matter jurisdiction is the constitutionality of the 1972 Amendments to the Act, as applied to the facts before us.

Before the 1972 Amendments, it was only necessary for an injured employee to satisfy a situs requirement, i. e. the injury had to have occurred upon the navigable waters of the United States. In Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 264, 97 S.Ct. 2348, 2357, 53 L.Ed.2d 320 (1977), it was said:

"So long as a work-related injury occurred on navigable waters ... the worker would be eligible for federal compensation provided that his or her employer had at least one employee engaged in maritime employment. It was not necessary that the injured employee be so employed."

In the same case it is said:

"The 1972 Amendments thus changed what had been essentially only a 'situs' test of eligibility for compensation to one looking to both the 'situs' of the injury and the 'status' of the injured." Id. at 264-265, 97 S.Ct. at 2357. (Emphasis added.)

In the case before us, the Board's conclusions follow the argument presented by petitioner in Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137, 141 (CA9 1978). There, the stevedore urged, in part, that the claimant was not engaged in maritime employment when he was injured and that, therefore, he had not met the status requirements of the 1972 legislation. It also urged that the coverage of the claimant under the Act would exceed the power of Congress under the Constitution. The court, in passing on the question, said:

"Such contention is without merit. Congress has 'paramount power to determine the maritime law which shall prevail throughout the country,' Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21, 43, 55 S.Ct. 31, 38, 79 L.Ed. 176 (1934), including authority over maritime contracts. Id. at 48, (55 S.Ct. at 40)." Id. at 141.

The Board's theory in declining subject matter jurisdiction was that the Admiralty and Maritime Clause of the Constitution, Article III, Section 2, Cl. 1, did not confer power on Congress to extend the coverage to petitioner. This was the position taken by the shipyard in Newport News Shipbuilding & Dry Dock v. Graham, 573 F.2d 167, 170 (CA4 1978), cert. denied, 439 U.S. 979, 99 S.Ct. 563, 58 L.Ed.2d 649. There, the court said:

"... (W)e conclude that Congress acted constitutionally when it extended the Act's coverage to an employee maintaining machinery utilized to build ships in a shipyard adjoining navigable waters even though his shop was relatively distant from the shore." Id. at 170.

Arguments similar to respondents have been recently rejected by other courts. Dravo Corp. v. Maxin, 545 F.2d 374, 375-379 (CA3 1976), cert. denied, 433 U.S. 908, 97 S.Ct. 2973, 53 L.Ed.2d 1092 (1977); Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 56-57 (CA2 1976), aff'd sub nom. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249,...