Todd Shipyards Corp. v. Witthuhn

• Decision Date: 14 May 1979
• Docket Number: Nos. 76-1067,76-3759,s. 76-1067
• Parties: TODD SHIPYARDS CORPORATION and The Travelers Insurance Company, Petitioners, v. Edith WITTHUHN and William G. Witthuhn, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents. TODD SHIPYARDS CORPORATION and The Travelers Insurance Company, Petitioners, v. Julia V. FOLEY (widow of Clarence Foley), Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 899

596 F.2d 899

TODD SHIPYARDS CORPORATION and The Travelers Insurance

Company, Petitioners, v. Edith WITTHUHN and William G. Witthuhn, and Director, Office

of Workers' Compensation Programs, United States

Department of Labor, Respondents.

TODD SHIPYARDS CORPORATION and The Travelers Insurance

Company, Petitioners, v. Julia V. FOLEY (widow of Clarence Foley), Respondent.

Nos. 76-1067, 76-3759.

United States Court of Appeals Ninth Circuit.

May 14, 1979.

Robert Madden, San Francisco, Cal., for petitioners.

Edward Kay, San Francisco, Cal., for respondent, Foley.

Joshua T. Gillelan, II, for respondent, Director, Office of Workers' Compensation Program.

Petitions to Review Decisions of the Benefits Review Board.

Before DUNIWAY and SNEED, Circuit Judges, and SPENCER WILLIAMS, ^* District Judge.

DUNIWAY, Circuit Judge:

In each of these cases, Todd Shipyards Corporation ("Todd") and its compensation insurance carrier, the Travelers Insurance Company ("Travelers"), petition for a review of a final order of the Benefits Review Board of the United States Department of Labor awarding a death benefit to the survivor or survivors of a harbor worker who died after sustaining permanently and totally disabling injuries while working for Todd. The Board made the awards under Section 9 of the Longshoremen's and Harbor Workers' Compensation Act, as amended ("the Act"), 33 U.S.C. § 909. Todd and Travelers dispute the applicability of amended § 909, and, assuming its applicability, they challenge its constitutionality. We have jurisdiction under Section 21(c) of the Act, 33 U.S.C. § 921(c).

I. Background.

Amended Section 9 of the Act provides:

If the injury causes death, Or if the employee who sustains permanent total disability due to the injury thereafter dies from causes other than the injury, the compensation shall be known as a death benefit and shall be payable in the amount and to or for the benefit of the persons following . . ..

33 U.S.C. § 909 (emphasis added).

The italicized language was added by Section 5(d) of the Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972, Pub.L. 92-576, 86 Stat. 1251, 1253-1254. Those Amendments took effect on November 26, 1972. See § 22 of the Amendments, 86 Stat. at 1265.

In No. 76-1067, the Board upheld claims filed by the surviving widow and minor son of Harold P. Witthuhn, who died on August 11, 1973, eight and one-half months after amended § 909 took effect. On May 31, 1968, he sustained permanently and totally disabling injuries while working as a pipefitter at Todd's Seattle shipyard. He died from causes other than the injury itself.

In No. 76-3759, the Board upheld claims filed by the surviving widow of Clarence Foley, who died on December 17, 1973, over a year after amended § 909 took effect. On October 15, 1966, he sustained permanently and totally disabling injuries while working as a marine machinist at Todd. He died from causes other than the injury itself.

II. Amended Section 909 Applies.

Nothing in the 1972 Amendments states that the death benefit in cases of permanent total disability provided by the amendment to Section 909 shall not be applicable when the disabling injury occurred before the effective date of the amendment but the death occurred after that date. Nothing in the legislative history suggests that Congress intended that the amended section should not apply in such a case.

A representative of the maritime industry did urge both houses to adopt a generalized amendment which would have had that effect. See Hearings before the Sub-Committee on Labor of the Committee on Labor and Public Welfare, U. S. Senate, 92d Cong., 2d Sess. on S.2318, S.525 and S.1547 at 314, 360 (1972); Hearings before the Select Subcomm. on Labor of the Comm. on Education and Labor, House of Representatives, 92d Cong., 2d Sess. on H.R.247, H.R.3505, H.R.12006, and H.R.15023 at 115, 131-32 (1972). (Testimony of Edward D. Vickery.) Congress, however, did not do so. Instead, it simply provided that "The amendments . . . shall become effective thirty days after the date of enactment of this Act." Pub.L. 92-572, § 22, 86 Stat. at 1265.

Where Congress meant to restrict the applicability of a particular provision of the 1972 Amendments, as in the case of its elimination of the longshoremen's unseaworthiness remedy and of shipowner indemnity actions, it expressed its intentions through carefully constructed legislative history. See, e. g., 118 Cong.Rec. 36382 (Statement of Congressman Daniels); 118 Cong.Rec. 36384 (colloquy among Congressmen Burton, Quie and Eckhardt). Accord, Hanseatische Reederei Emil Offen & Company v. Marine Terminals Corporation, 9 Cir., 1979, 590 F.2d 778, 782, n.1.

In Dillingham Corporation v. Massey, 9 Cir., 1974, 505 F.2d 1126, 1129, we followed Overseas African Construction Corp. v. McMullen, 2 Cir., 1974, 500 F.2d 1291, 1297, relying upon an absence of restrictive legislative history to uphold an award of attorneys' fees pursuant to the 1972 amendment to 33 U.S.C. § 928(b), even though the case in question arose before the 1972 Amendments. So here, in the absence of restrictive legislative history pertaining to amended § 909, we hold the amended provision fully applicable to claims based upon death occurring on or after November 26, 1972. St. Louis Shipbuilding and Steel Company v. Casteel, 8 Cir., 1978, 583 F.2d 876, 877; Nacirema Operating Company v. Lynn, 3 Cir., 1978, 577 F.2d 852, 853-54; State Insurance Fund v. Pesce, 2 Cir., 1977, 548 F.2d 1112, 1114. See also Norfolk, Baltimore and Carolina Lines, Inc. v. Director, Office of Workers' Compensation Programs, United States Department of Labor, 4 Cir., 1976, 539 F.2d 378, 380.

Petitioners also argue that our interpretation of the amending language so conflicts with the meaning of other provisions of the Act that were not amended as to render the application of amended § 909 "utterly impossible." Congress apparently did neglect to amend some of these provisions to reflect the broadened availability of death benefits under amended § 909. Nevertheless, "(d)espite the possible incongruities . . ., the intention of Congress . . . remains altogether clear and intelligible." Norfolk Lines, supra, 539 F.2d at 380. The Department of Labor and the appellate courts should have little difficulty in construing these technical provisions in light of amended § 909's overriding purpose. If there is a genuine conflict between amended § 909 and other, unnamed, provisions, § 909, as the later enactment, prevails.

III. Application of Amended Section 909 is Constitutional.

Petitioners bear the burden of overcoming the presumption of constitutionality which attaches to amended § 909 as a "legislative Act( ) adjusting the burdens and benefits of economic life." Usery v. Turner Elkhorn Mining Co., 1976, 428 U.S. 1, 15, 96 S.Ct. 2882, 2892, 49 L.Ed.2d 752.

Petitioners say that amended § 909 denies them due process by retroactively trenching upon their vested rights. This argument rests on the premise that Petitioners' rights vis a vis the now deceased harbor workers' eventual survivors became fixed as of the date those harbor workers suffered their totally and permanently disabling injuries. We conclude, however, that amended § 909 does not retroactively affect vested rights. The deaths of Harold Witthuhn and Clarence Foley gave rise to new claims for relief not in existence during their lifetimes. When they died, after November 26, 1972, their survivors' rights to death benefits first vested, and at that time the Amendments had taken effect. It could not be known, until the deaths occurred, whether there would be any eligible survivor(s) or, if so, who those survivor(s) would be. Thus amended § 909 operates prospectively when applied to the cases before us. See St. Louis Shipbuilding and Steel Company, supra, 583 F.2d at 877; ¹ State Insurance Fund v. Pesce, supra, 548 F.2d at 1114; Travelers Insurance v. Toner, 1951, 89 U.S.App.D.C. 77, 78, 190 F.2d 30, 31; Hampton Roads Stevedoring Corp. v. O'Hearne, 4 Cir., 1950, 184 F.2d 76, 79; Penn Jersey Welding Co. v. Lowe, 3 Cir., 1950, 183 F.2d 936, 937-38; Hitt v. Cardillo, 1942, 76 U.S.App.D.C. 334, 335, 131 F.2d 233, 234; Norton v. Travelers Insurance Co., 3 Cir., 1939, 105 F.2d 122, 123-24; International Mercantile Marine Co. v. Lowe, 2 Cir., 1938, 93 F.2d 663, 665.

Moreover, even if we were to agree that to apply amended § 909 would be to give it a "retroactive" effect, we would still uphold its constitutionality. "(W)hile statutes of retrospective force are not favored, they are not per se unconstitutional." Norfolk, Baltimore and Carolina Lines, Inc. v. Director, Office of Workers' Programs, supra, 539 F.2d at 380.

In the recent case of Usery v. Turner Elkhorn Mining Co., supra, the Supreme Court rejected a quite similar due process attack on the Federal Coal Mine Health and Safety Act of 1969 as amended by the Black Lung Benefits Act of 1972, 30 U.S.C. § 901 Et seq. The statute provided death benefits to the survivors of miners irrebuttably presumed to have died from pneumoconiosis (black lung disease). The Court conceded that the Act has some retrospective effect and that the liability imposed upon mine operators for disabilities suffered by former employees may not have been "anticipated at the time of actual employment," 428 U.S. at 16, 96 S.Ct. at 2892, 2893. The Court nevertheless upheld the law.

. . . (O)ur cases are clear that legislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations. . . . This is true even though the effect of the legislation is to impose a new duty or liability based on past acts.

428 U.S. at 16, 96 S.Ct. at 2893 (citations omitted).

After stating that it would "hesitate to approve the retrospective imposition of liability on any theory of deterrence . . . or blameworthiness," 428 U.S. at 17-18, 96 S.Ct. at 2893, the Court upheld the law on a basis...