White v. Norfolk & W. Ry. Co.

• Citation: 232 S.E.2d 807,217 Va. 823
• Decision Date: 04 March 1977
• Docket Number: No. 751407,751407
• Parties: Ralph J. WHITE, III v. NORFOLK AND WESTERN RAILWAY COMPANY. Record
• Court: Supreme Court of Virginia

Page 807

232 S.E.2d 807

217 Va. 823

Ralph J. WHITE, III v. NORFOLK AND WESTERN RAILWAY COMPANY.

Record No. 751407.

Supreme Court of Virginia.

March 4, 1977.

Henry E. Howell, Jr., J. Gray Lawrence, Jr., Norfolk (Howell, Anninos, Daugherty & Brown, Norfolk, on briefs), for plaintiff in error.

William T. Prince, Norfolk (Williams, Worrell, Kelly & Greer, Norfolk, on briefs), for defendant in error.

Before I'ANSON, C.J., and CARRICO, HARMAN, POFF and COMPTON, JJ.

COMPTON, Justice.

In this personal injury action brought under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51--60, we must decide whether, under the circumstances of this case, the exclusive remedy is under the Federal Longshoremen's and Harbor Workers' Compensation Act (LHWCA or the Act), 33 U.S.C. §§ 901--950.

Plaintiff-appellant Ralph J. White, III, filed suit in June of 1974 in the court below against his employer, defendant-appellee Norfolk and Western Railway Company (N & W). During the period of time in question, plaintiff worked as an electrician in rooms housing electrical equipment at defendant's Lambert's Point terminal in Norfolk. Plaintiff alleged defendant negligently failed to furnish him a safe place to work and negligently failed to provide him with protective equipment, and as a result of excessive noise in the electrical rooms he suffered permanent damage to his hearing and developed a constant ringing in his ears. The FELA case was tried in November of 1974 and the jury found for the defendant. Thereafter, the trial judge sustained plaintiff's motion to set the verdict aside and ordered a new trial.

In June of 1975, shortly before the scheduled retrial, defendant filed a motion to dismiss on the ground the court lacked jurisdiction over the subject matter in that plaintiff's exclusive remedy was under the LHWCA. Following an evidentiary hearing, the trial court sustained the motion. We granted plaintiff a writ of error to the July 29, 1975 order dismissing plaintiff's action.

Enacted in 1927, the LHWCA, like the FELA, is a federal industrial accident statute. The enactment emanated from the problems created when some of the States applied State workmen's compensation acts to claims of longshoremen and other harbor workers. 1 M. Norris, The Law of Maritime Personal Injuries 103 (3d ed. 1975). ¹ These claims, for the most part, stemmed from injuries aboard vessels in navigable waters and thus were in the distinctly Federal field of maritime torts, even though the claims arose within the territorial boundaries of the States. After the United States Supreme Court, in a line of pre-1927 cases, barred these State awards to maritime workers, Congress enacted this comprehensive maritime workers compensation law.

In 1972, extensive changes were made in the LHWCA. Prior to 1972, the Act provided that compensation was payable only if the claim arose 'upon navigable waters' including 'any dry dock' and only if recovery for the disability or death could not validly be provided by State law through workmen's compensation proceedings. The Supreme Court thus construed the earlier act 'to reimburse only injuries seaward of the pier, e.g. on shipboard or other like structure within the narrow confines of the admiralty tort jurisdiction.' Stockman v. John T. Clark & Son, Inc., 539 F.2d 264, 270 (1st Cir. 1976). Before the 1972 amendments, the Act was considered to be a mere 'supplement to state workmen's compensation laws, designed not to supersede or improve upon those laws but to fill a gap which the states were without jurisdiction to fill.' Id. at 270 (footnote omitted). Pre-1972 coverage under the Act was 'overwhelmingly situs-oriented.' Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533, 537 (5th Cir. 1976). For example, coverage was granted to a longshoreman injured aboard the vessel but denied if his injury occurred several feet from the ship on the pier. 539 F.2d at 270. In Nacirema Co. v. Johnson, 396 U.S. 212, 90 S.Ct. 347, 24 L.Ed.2d 371 (1969), the claims of three longshoremen were denied when two were injured and a third killed, on piers permanently affixed to the shore, while they were attaching cargo from railroad cars to ships' cranes. The Supreme Court rejected the argument that the 1927 Act provided a broader coverage which was premised on "status' of the longshoreman employed in performing a maritime contract.' 396 U.S. at 215, 90 S.Ct. at 350. The Court noted:

'Congress might have extended coverage to all longshoremen by exercising its power over maritime contracts.7 [7 The admiralty jurisdiction in tort was traditionally 'bounded by locality,' encompassing all torts that took place on navigable waters. By contrast, admiralty contract jurisdiction 'extends over all contracts, (wheresoever they may be made or executed . . .) which relate to the navigation, business or commerce of the sea.' Since a workmen's compensation act combines elements of both tort and contract, Congress need not have tested coverage by locality alone. As the text indicates, however, the history of the Act shows that Congress did indeed do just that.]' 396 U.S. at 215--16, 90 S.Ct. at 350 (citations omitted).

The Court also observed that movement of the coverage line landward should be accomplished by legislative and not judicial action. 396 U.S. at 224, 90 S.Ct. 347.

The inequities resulting from the fact that coverage under the Act stopped at the water's edge prompted Congress in 1972 to enlarge the scope of the Act. See H.R.Rep. No. 1441, 92d Cong., 2d Sess. 10, Reprinted in (1972) U.S.Code Cong. & Admin.News pp. 4698, 4707--08. By enactment of the 1972 amendments, Congress, Inter alia, expanded the 'situs' requirement; it also enhanced the significance of the 'status' requirement by defining the class of persons who are 'employees' entitled to coverage under the Act.

Section 3(a) of the Act sets forth the situs where a covered claim must occur, and provides in pertinent part as follows, with the Amendment made in 1972 shown by italics:

'Compensation shall be payable . . . 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). . . . ' 33 U.S.C. § 903(a).

Section 2(3) of the Act defines the status which the employee must occupy to be covered, and provides as follows, with the 1972 Amendment indicated by italics:

'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.' 33 U.S.C. § 902(3).

The Act further provides that an employer, defined in the Act, Id. § 902(4), shall be liable for compensation of his employees, Id. § 904, and that such liability shall be exclusive and in place of all other liability of such employer to the employee. Id. § 905.

As we turn to the facts, it will become apparent that the critical question presented by this case is whether plaintiff was a 'person engaged in maritime employment' and thus an 'employee' within the meaning of the Act. To make this determination, a thorough understanding of the coal-loading process from beginning to end, and the plaintiff's function as it relates thereto, is essential; it is also relevant that other N & W employees performed purely maritime work.

The evidence which was developed during the hearing on the motion to dismiss is without substantial conflict. N & W is a rail carrier of coal and operates the Lambert's Point facilities, which include railroad yards and two coal piers, Piers 5 and 6, extending into the navigable waters of the Elizabeth River, a part of Hampton Roads. Pier 5 is about 1000 feet long, Pier 6 is approximately 1600 feet in length with a 200-foot dolphin extension. The coal is brought to Lambert's Point by rail, to be shipped worldwide, from mines in West Virginia, Kentucky and Pennsylvania; it is sent to Norfolk from staging areas in Roanoke and Crewe, but only when a designated ship is scheduled to arrive at Lambert's Point to receive it.

When the ship's arrival time is known, transfer of the coal from the staging areas to classification or storage yards at Lambert's Point is coordinated by N & W. Upon arrival in Hampton Roads, the vessel stands off Lambert's Point until called to the piers by N & W. Defendant arranges with Curtis Bay Towing Company for tug service to aid in berthing. One of the tugs employed is owned by N & W and operated by Curtis Bay to 'service' the coal piers exclusively. As the ship approaches the pier designated by defendant's piermaster, line tenders employed by N & W handle the lines to secure the ship to the pier. These line tenders may be shop helpers, helper machinists, helper electricians, or helpers of any description.

When docking of the vessel is completed, the following procedure is used to transfer the coal from the storage yards to the coal piers and thence into the ship's hold. The loaded coal cars are brought from the classification or storage yards to the Barney or hump yard, so named because its tracks are laid at a 3.5 per cent upgrade, by a hump crew composed of an engineer, a fireman, a conductor and two brakemen. The 20 or 30 coal cars are shoved by the hump engine into the yard where the cars' brakes are applied. Individual cars are then uncoupled manually upon orders of a conductor and allowed to roll unassisted down a 1.5 per cent grade over scales which weigh the cars and through the thawing chamber to the Barney Pit where the cars...