DIRECTOR, OWCP v. PERINI NORTH RIVER ASSOC.(1983)
Before 1972, coverage under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA or Act) extended only to injuries sustained by workers on the actual "navigable waters of the United States (including any dry dock)." In 1972, the Act was amended by expanding the "navigable waters" situs to include certain adjoining land and by adding a status requirement that employees covered by the Act be "engaged in maritime employment" within the meaning of 2(3) of the Act. In this case, an employee (Churchill) of respondent construction firm was injured while performing his job on the deck of a cargo barge being used in the construction of a sewage treatment plant extending over the Hudson River in New York. Churchill's claim for compensation under the LHWCA was administratively denied on the ground that he was not "engaged in maritime employment" under 2(3). On Churchill's petition for review, in which the Director of the Office of Workers' Compensation Programs (Director) (petitioner here) participated as respondent in support of Churchill, the Court of Appeals held that Churchill was not in "maritime employment" because his employment lacked a "significant relationship to navigation or to commerce on navigable waters."
O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined. REHNQUIST, J., filed an opinion concurring in the judgment, post, p. 325. STEVENS, J., filed a dissenting opinion, post, p. 325.
Richard G. Wilkins argued the cause pro hac vice for petitioner. With him on the briefs were Solicitor General Lee, Deputy Solicitor General Geller, T. Timothy Ryan, Jr., Donald S. Shire, Kerry L. Adams, Mark C. Walters, and Joshua T. Gillelan II.
Martin Krutzel argued the cause for respondents Perini North River Associates et al. With him on the brief for respondents Perini North River Associates et al. was Richard A. Cooper. David MacRae Wagner filed a brief for Raymond Churchill, respondent under this Court's Rule 19.6.
JUSTICE O'CONNOR delivered the opinion of the Court.
In 1972, Congress amended the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. (part 2) 1424, as [459 U.S. 297, 299] amended, 33 U.S.C. 901 et seq. (1976 ed. and Supp. V) (hereinafter LHWCA or Act). Before 1972, LHWCA coverage extended only to injuries sustained on the actual "navigable waters of the United States (including any dry dock)." 44 Stat. (part 2) 1426. As part of its 1972 Amendments of the Act, Congress expanded the "navigable waters" situs to include certain adjoining land areas, 3(a), 86 Stat. 1251, 33 U.S.C. 903(a). At the same time, Congress added a status requirement that employees covered by the Act must be "engaged in maritime employment" within the meaning of 2(3) of the Act. 1 We granted certiorari in this case, 455 U.S. 937 (1982), to consider whether a marine construction worker, who was injured while performing his job upon actual navigable waters, 2 and who would have been covered by the Act before 1972, is "engaged in maritime employment" and thus covered by the amended Act. 3 We hold that the worker is "engaged in maritime employment" for purposes of [459 U.S. 297, 300] coverage under the amended LHWCA. Accordingly, we reverse the decision below.
The facts are not in dispute. Respondent Perini North River Associates (Perini) contracted to build the foundation of a sewage treatment plant that extends approximately 700 feet over the Hudson River between 135th and 145th Streets in Manhattan. The project required that Perini place large, hollow circular pipes called caissons in the river, down to embedded rock, fill the caissons with concrete, connect the caissons together above the water with concrete beams, and place precast concrete slabs on the beams. The caissons were delivered by rail to the shore, where they were loaded onto supply barges and towed across the river to await unloading and installation.
The injured worker, Raymond Churchill, was an employee of Perini in charge of all work performed on a cargo barge used to unload caissons and other materials from the supply barges and to set caissons in position for insertion into the embedded rock. Churchill was on the deck of the cargo barge giving directions to a crane operator engaged in unloading a caisson from a supply barge when a line used to keep the caissons in position snapped and struck Churchill. He sustained injuries to his head, leg, and thumb. 4
Churchill filed a claim for compensation under the LHWCA. Perini denied that Churchill was covered by the Act, and after a formal hearing pursuant to 19 of the Act, 33 U.S.C. 919 (1976 ed. and Supp. V), an Administrative Law Judge determined that Churchill was not "engaged in maritime employment" under 2(3) of the Act because his job lacked "some relationship to navigation and commerce on navigable waters." App. to Pet. for Cert. 31a. Churchill and the Director, Office of Workers' Compensation Programs [459 U.S. 297, 301] (Director), appealed to the Benefits Review Board, pursuant to 21(b)(3) of the Act, 33 U.S.C. 921(b)(3). The Board affirmed the Administrative Law Judge's denial of coverage, on the theory that marine construction workers involved in building facilities not ultimately used in navigation or commerce upon navigable waters are not engaged in "maritime employment." 12 BRBS 929, 933 (1980). 5 One Board Member dissented, arguing that "all injuries sustained in the course of employment by employees over `navigable waters' as that term was defined prior to the 1972 Amendments, are covered under the [amended] Act." Id., at 935. 6
Churchill then sought review of the Board's decision in the Court of Appeals for the Second Circuit, under 21(c) of the Act, 33 U.S.C. 921(c). 7 The Director participated as respondent, and filed a brief in support of Churchill's position. The Second Circuit denied Churchill's petition, relying on its decision in Fusco v. Perini North River Associates, 622 F.2d 1111 (1980), cert. denied, 449 U.S. 1131 (1981). According to the Second Circuit, Churchill was not in "maritime employment" because his employment lacked a "`significant relationship to navigation or to commerce on navigable waters.'" Churchill v. Perini North River Associates, 652 F.2d 255, 256, n. 1 (1981). The Director now seeks review of the Second Circuit denial of Churchill's petition. The Director agrees with the position taken by the dissenting member of the Benefits Review Board: the LHWCA does not require [459 U.S. 297, 302] that an employee show that his employment possesses a "significant relationship to navigation or to commerce," where, as here, the employee is injured while working upon the actual navigable waters in the course of his employment, and would have been covered under the pre-1972 LHWCA. 8
Before we consider whether Churchill is covered by the Act, we must address Perini's threshold contention that the Director does not have standing to seek review of the decision below. According to Perini, the Director's only interest in this case is in furthering a different interpretation of the Act than the one rendered by the Administrative Law Judge, the Benefits Review Board, and the Court of Appeals. 9
Perini's claim ignores the procedural posture in which this case comes before the Court. That posture makes it unnecessary for us to consider whether the Director, as the agency [459 U.S. 297, 303] official "responsible for the administration and enforcement" of the Act, 10 has standing as an aggrieved party to seek review of the decision below. 11 The Director is not alone in arguing that Churchill is covered under the LHWCA. Churchill, the injured employee, is before the Court as well. He has filed a brief in support of the Director's request for a writ of certiorari, and a brief addressing the merits of his claim, in which he presents the same arguments presented by the Director. But, for some reason that is not entirely clear, Churchill has not elected to seek review as a petitioner, and by virtue of the Rules of this Court, he is considered a party [459 U.S. 297, 304] respondent. 12 It is in this procedural context that Perini's challenge to Art. III standing must be considered. Perini concedes that the Director was a proper party respondent before the Court of Appeals in this litigation. 13 As party respondent below, the Director is entitled under 28 U.S.C. 1254(1) to petition for a writ of certiorari. Although the Director has statutory authority to seek review in this Court, he may not have Art. III standing to argue the merits of Churchill's claim because the Director's presence does not guarantee the existence of a justiciable controversy with respect to the merits of Churchill's coverage under the LHWCA. However, the Director's petition makes Churchill an automatic respondent under our Rule 19.6, and in that capacity, Churchill "may seek reversal of the judgment of the Court of Appeals on any ground urged in that court." O'Bannon v. Town Court Nursing Center, 447 U.S. 773, 783 -784, n. 14 (1980). The Director's petition, filed under [459 U.S. 297, 305] 28 U.S.C. 1254(1), brings Churchill before this Court, and there is no doubt that Churchill, as the injured employee, has a sufficient interest in this question to give him standing to urge our consideration of the merits of the Second Circuit decision.
The constitutional dimension of standing theory requires, at the very least, that there be an "actual injury redressable by the court." Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 39 (1976). This requirement is meant "to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action," as well as to assure "an actual factual setting in which the litigant asserts a claim of injury in fact." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982). The presence of Churchill as a party respondent arguing for his coverage under the Act assures that an admittedly justiciable controversy is now before the Court.
The question of Churchill's coverage is an issue of statutory construction and legislative intent. For reasons that we explain below, there is no doubt that Churchill, as a marine construction worker injured upon actual navigable waters in the course of his employment upon those waters, would have been covered by the LHWCA before Congress amended it in 1972. In deciding whether Congress intended to restrict the scope of coverage by adding the 2(3) status requirement, we must consider the scope of coverage under the pre-1972 Act and our cases construing the relevant portions of that Act. We must then focus on the legislative history and purposes of the 1972 Amendments to the LHWCA to determine their effect on pre-existing coverage. [459 U.S. 297, 306]
Beginning with our decision in Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917), we held that there were certain circumstances in which States could not, consistently with Art. III, 2, of the Constitution, provide compensation to injured maritime workers. 14 If the employment of an injured worker was determined to have no "direct relation" to navigation or commerce, and "the application of local law [would not] materially affect" the uniformity of maritime law, then the employment would be characterized as "maritime but local," and the State could provide a compensation remedy. Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 477 (1922). See also Western Fuel Co. v. Garcia, 257 U.S. 233, 242 (1921). If the employment could not be characterized as "maritime but local," then the injured employee would be left without a compensation remedy.
After several unsuccessful attempts to permit state compensation remedies to apply to injured maritime workers whose employment was not local, 15 Congress passed the LHWCA in 1927, 44 Stat. (part 2) 1424. Under the original statutory scheme, a worker had to satisfy five primary conditions in order to be covered under the Act. First, the worker had to satisfy the "negative" definition of "employee" contained in 2(3) of the 1927 Act in that he could not be a "master or member of a crew of any vessel, nor any person engaged by the master to load or unload or repair any small vessel under eighteen tons net." Id., at 1425. 16 Second, the [459 U.S. 297, 307] worker had to suffer an "injury" defined by 2(2) as "accidental injury or death arising out of and in the course of employment . . . ." Ibid. Third, the worker had to be employed by a statutory "employer," defined by 2(4) as "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 dry dock)." Ibid. 17 Fourth, the worker had to meet a "situs" requirement contained in 3(a) of the Act that limited coverage to workers whose "disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock)." Id., at 1426. Fifth, 3(a) precluded federal compensation unless "recovery for the disability or death through workmen's compensation proceedings may not validly be provided by State law." Ibid.
Federal compensation under the LHWCA did not initially extend to all maritime employees injured on the navigable waters in the course of their employment. As mentioned, 3(a) of the 1927 Act permitted federal compensation only if compensation "may not validly be provided by State law." Ibid. This language was interpreted to exclude from LHWCA coverage those employees whose employment was "maritime but local." See, e. g., Crowell v. Benson, 285 U.S. 22 (1932). Application of the "maritime but local" doctrine required case-by-case determinations, and a worker was often required to make a perilous jurisdictional "guess" as to which of two mutually exclusive compensation schemes was applicable to cover his injury. Employers faced uncertainty as to whether their contributions to a state insurance fund would be sufficient to protect them from liability.
In Davis v. Department of Labor, 317 U.S. 249 (1942), this Court recognized that despite its many cases involving the [459 U.S. 297, 308] "maritime but local" doctrine, it had "been unable to give any guiding, definite rule to determine the extent of state power in advance of litigation . . . ." Id., at 253. Employees and employers alike were thrust on "[t]he horns of [a] jurisdictional dilemma." Id., at 255. 18 Davis involved an employee [459 U.S. 297, 309] who was injured while dismantling a bridge from a standing position on a barge. We upheld the application of the state compensation law in Davis not because the employee was engaged in "maritime but local" employment, but because we viewed the case as in a "twilight zone" of concurrent jurisdiction where LHWCA coverage was available and where the applicability of state law was difficult to determine. We held that doubt concerning the applicability of state compensation Acts was to be resolved in favor of the constitutionality of the state remedy. Relying in part on Davis, the Court in Calbeck v. Travelers Insurance Co., 370 U.S. 114 (1962), created further overlap between federal and state coverage for injured maritime workers. In Calbeck, we held that the LHWCA was "designed to ensure that a compensation remedy existed for all injuries sustained by employees [of statutory employers] on navigable waters, and to avoid uncertainty as to the source, state or federal, of that remedy." Id., at 124. Our examination in Calbeck of the "complete legislative history" of the 1927 LHWCA revealed that Congress did not intend to incorporate the "maritime but local" doctrine in the Act. Id., at 120. "Congress used the phrase `if recovery . . . may not validly be provided by State law' in a sense consistent with the delineation of coverage as reaching injuries occurring on navigable waters." Id., at 126. 19
Before 1972, there was little litigation concerning whether an employee was "in maritime employment" for purposes of being the employee of a statutory employer: "Workers who [459 U.S. 297, 310] are not seamen but who nevertheless suffer injury on navigable waters are no doubt (or so the courts have been willing to assume) engaged in `maritime employment.'" G. Gilmore & C. Black, Law of Admiralty 428 (2d ed. 1975) (Gilmore & Black). One case in which we did discuss the maritime employment requirement was Parker v. Motor Boat Sales, Inc., 314 U.S. 244 (1941). In Parker, the injured worker, hired as a janitor, was drowned while riding in one of his employer's motorboats keeping lookout for hidden objects under the water. When the employee's beneficiary sought LHWCA compensation, the employer argued that the employment was "`so local in character'" that the State could validly have provided a remedy, and the 3(a) language ("if recovery . . . may not validly be provided by State law") precluded federal relief. Id., at 246. A unanimous Court rejected the employer's argument, and held that the employee was engaged in maritime employment and that LHWCA coverage extended to an employee injured on the navigable waters in the course of his employment, without any further inquiry whether the injured worker's employment had a direct relation to navigation or commerce. 20 In abolishing the "jurisdictional dilemma" created by the "maritime but local" doctrine, Calbeck relied heavily on Parker, see 370 U.S., at 127 -128. [459 U.S. 297, 311]
It becomes clear from this discussion that the 1927 Act, as interpreted by Parker, Davis, and Calbeck, provided coverage to those employees of statutory "employers," injured while working upon navigable waters in the course of their employment. Indeed, the consistent interpretation given to the LHWCA before 1972 by the Director, the Deputy Commissioners, the courts, and the commentators was that (except for those workers specifically excepted in the statute), any worker injured upon navigable waters in the course of employment was "covered . . . without any inquiry into what he was doing (or supposed to be doing) at the time of his injury." Gilmore & Black, at 429-430. 21 As a marine construction [459 U.S. 297, 312] worker required to work upon navigable waters, and injured while performing his duties on navigable waters, there can be no doubt that Churchill would have been covered under the 1927 LHWCA. [459 U.S. 297, 313]
In its "first significant effort to reform the 1927 Act and the judicial gloss that had been attached to it," Congress amended the LHWCA in 1972. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 261 (1977). The purposes of the 1972 Amendments were to raise the amount of compensation available under the LHWCA, to extend coverage of the Act to include certain contiguous land areas, to eliminate the longshoremen's strict-liability seaworthiness remedy against shipowners, to eliminate shipowner's claims for indemnification from stevedores, and to promulgate certain administrative reforms. See S. Rep. No. 92-1125, p. 1 (1972) (hereinafter S. Rep.); H. R. Rep. No. 92-1441 (1972) (hereinafter H. R. Rep.).
For purposes of the present inquiry, the important changes effected by the 1972 Amendments concerned the definition of "employee" in 2(3), 33 U.S.C. 902(3), and the description of coverage in 3(a), 33 U.S.C. 903(a). These amended sections provide:
According to Perini, Congress intended to overrule legislatively this Court's decision in Calbeck, and the status requirement was added to ensure that both the landward coverage and seaward coverage would depend on the nature of the employee's duties at the time he was injured. Perini's theory, adopted by the court below, is that all coverage under the amended LHWCA requires employment having a "significant relationship to navigation or to commerce on navigable waters." 25 Perini argues further that Churchill cannot meet the status test because he was injured while working on the construction of a foundation for a sewage treatment plant - an activity not typically associated with navigation or commerce on navigable waters.
We agree with the Director and Churchill. We are unable to find any congressional intent to withdraw coverage of the LHWCA from those workers injured on navigable waters in the course of their employment, and who would have been covered by the Act before 1972. As we have long held, "[t]his Act must be liberally construed in conformance with [459 U.S. 297, 316] its purpose, and in a way which avoids harsh and incongruous results." Voris v. Eikel, 346 U.S. 328, 333 (1953). See also Baltimore & Philadelphia Steamboat Co. v. Norton, 284 U.S. 408, 414 (1932); Northeast Marine Terminal Co., 432 U.S., at 268 .
It is necessary to consider the context in which the 1972 Amendments were passed, especially as that context relates directly to the coverage changes that were effected. Despite the fact that Calbeck extended protection of the LHWCA to all employees injured upon navigable waters in the course of their employment, LHWCA coverage still stopped at the water's edge - a line of demarcation established by Jensen. In Nacirema Operating Co. v. Johnson, 396 U.S. 212 (1969), we held that the LHWCA did not extend to longshoremen whose injuries occurred on the pier attached to the land. We recognized that there was much to be said for the uniform treatment of longshoremen irrespective of whether they were performing their duties upon the navigable waters (in which case they would be covered under Calbeck), or whether they were performing those same duties on a pier. We concluded, however, that although Congress could exercise its authority to cover land-based maritime activity, "[t]he invitation to move that [Jensen] line landward must be addressed to Congress, not to this Court." 396 U.S., at 224 . See Victory Carriers, Inc. v. Law, 404 U.S. 202, 216 (1971).
Other aspects of the statutory scheme support our understanding of the "maritime employment" status requirement. Congress removed from 3(a) the requirement that, as a prerequisite to federal coverage, there can be no valid recovery under state law. 30 As we noted in our discussion in Part [459 U.S. 297, 321] III-A, supra, the continued use of the "maritime but local" doctrine occurred after passage of the 1927 Act because the original coverage section contained this requirement that Congress explicitly deleted in 1972. Surely, if Congress wished to repeal Calbeck and other cases legislatively, it would do so by clear language and not by removing from the statute the exact phrase that Calbeck found was responsible for continued emphasis on the "maritime but local" doctrine. 31
Congressional intent to adhere to Calbeck is also indicated by the fact that the legislative Reports clearly identified those decisions that Congress wished to overrule by the 1972 Amendments. As mentioned above, the 1972 Amendments had other purposes apart from an expansion of coverage to shoreside areas. Two other purposes involved the elimination of a strict-liability unseaworthiness remedy against a vessel owner afforded to longshoremen by Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946), and an indemnity claim against the stevedore by the vessel owner afforded by Ryan [459 U.S. 297, 322] Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U.S. 124 (1956). The legislative Reports explicitly identified these decisions as intended to be overruled legislatively by the 1972 Amendments. See S. Rep., at 8-12; H. R. Rep., at 4-8. It is, therefore, highly unlikely that Congress would have intended to return to the "jurisdictional monstrosity" that Calbeck sought to lay to rest without at least some indication of its intent to do so.
In considering the scope of the status test as applied to land-based employees in Northeast Marine Terminal Co., we rejected the "point of rest" theory proposed by the employer, under which landward coverage under the 1972 Amendments would include only the portion of the unloading process that takes place before longshoremen place the cargo onto the dock. We reasoned that the "point of rest" concept is "[a] theory that nowhere appears in the Act, that was never mentioned by Congress during the legislative process, that does not comport with Congress' intent, and that restricts the coverage of a remedial Act designed to extend coverage . . . ." The absence of the concept, "claimed to be so well known in the industry is both conspicuous and telling." 432 U.S., at 278 -279, 275. In the same sense, the absence of even the slightest congressional allusion to the "maritime but local" doctrine, a concept that plagued maritime compensation law for over 40 years and that would have the effect of restricting coverage in the face of congressional intent not to "exclude other employees traditionally covered," is equally conspicuous and telling.
Finally, we note that our conclusion concerning the continued coverage of employees injured on actual navigable waters in the course of their employment is consistent with, and supported by, our recent decision in Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715 (1980). In Sun Ship, the issue before the Court was whether extended shoreside coverage under the 1972 Amendments had the effect of displacing concurrent [459 U.S. 297, 323] state remedies for landward injuries. After a review of the development of the "maritime but local" doctrine, and review of certain portions of the legislative history of the 1972 Amendments, we concluded that those Amendments were not intended to resurrect the dilemma, created by mutually exclusive spheres of jurisdiction, that Calbeck and Davis eliminated. Our reasoning was based, in part, on the removal by Congress of the language in the 1927 Act that made federal compensation available if recovery could not validly be provided by state law: "[T]he deletion of that language in 1972 - if it indicates anything - may logically only imply acquiescence in Calbec[k] . . . ." 447 U.S., at 721 .
Sun Ship held that with respect to land-based injuries, "the . . . extension of federal jurisdiction supplements, rather than supplants, state compensation law." Id., at 720. If we were to hold that the addition of the status requirement was meant to exclude from coverage some employees injured on the actual navigable waters in the course of their employment, a most peculiar result would follow. Concurrent jurisdiction will exist with respect to the class of employees to whom Congress extended protection in 1972, while employees "traditionally covered" before 1972 would be faced with a hazardous pre-Davis choice of two exclusive jurisdictions from which to seek compensation. Such an anomalous result could not have been intended by Congress. We also note that a return to exclusive spheres of jurisdiction for workers injured upon the actual navigable waters would be inconsistent with express congressional desire to extend LHWCA jurisdiction landward in light of the inadequacy of most state compensation systems. See S. Rep., at 12; H. R. Rep., at 10.
In holding that we can find no congressional intent to affect adversely the pre-1972 coverage afforded to workers injured upon the actual navigable waters in the course of their employment, we emphasize that we in no way hold that Congress [459 U.S. 297, 324] meant for such employees to receive LHWCA coverage merely by meeting the situs test, and without any regard to the "maritime employment" language. 32 We hold only that when a worker is injured on the actual navigable waters in the course of his employment on those waters, he satisfies the status requirement in 2(3), and is covered under the LHWCA, providing, of course, that he is the employee of a statutory "employer," and is not excluded by any other provision of the Act. 33 We consider these employees to be "engaged in maritime employment" not simply because they are injured in a historically maritime locale, but because they are required to perform their employment duties upon navigable waters. 34 [459 U.S. 297, 325]
In conclusion, we are unable to find anything in the legislative history or in the 1972 Amendments themselves that indicate that Congress intended to withdraw coverage from employees injured on the navigable waters in the course of their employment as that coverage existed before the 1972 Amendments. On the contrary, the legislative history indicates that Congress did not intend to "exclude other employees traditionally covered." Moreover, Congress explicitly deleted the language from 3(a) that we found in Calbeck to be responsible for the "jurisdictional dilemma" caused by two mutually exclusive spheres of jurisdiction over maritime injuries. Accordingly, the decision of the Court of Appeals is hereby reversed, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion.
[ Footnote 2 ] We use the expression "actual navigable waters" to describe the covered situs as it existed in the 1927 LHWCA, 44 Stat. (part 2) 1424: "navigable waters of the United States (including any dry dock)." Id., at 1426. As explained below, the 1972 Amendments to the LHWCA expanded the concept of "navigable waters" to include certain adjoining shoreside areas. 3(a), 33 U.S.C. 903(a).
[ Footnote 3 ] In Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977), we examined the scope of the 2(3) status requirement as it applied to injuries that occurred on the newly covered landward situs. In that case, we expressly declined to speculate whether congressional addition of the status requirement meant that "Congress excluded people who would have been covered before the 1972 Amendments; that is, workers who are injured on the navigable waters as previously defined." Id., at 265, n. 25.
[ Footnote 4 ] At the time Churchill was injured, he was working on a barge in actual navigable waters. There is no claim that he was standing on the foundation of the sewage treatment plant.
[ Footnote 5 ] The Board also determined that Churchill's duties did not make him a "person engaged in longshoring operations" under 2(3) of the LHWCA.
[ Footnote 6 ] The dissenting Board member also relied on this Court's decision in Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715 (1980), to support his position.
[ Footnote 7 ] Title 33 U.S.C. 921(c) provides in pertinent part:
[ Footnote 8 ] The Ninth Circuit is in agreement with the Second Circuit position. See Weyerhaeuser Co. v. Gilmore, 528 F.2d 957 (1975), cert. denied, 429 U.S. 868 (1976). The Fifth Circuit takes a position contrary to that of the Second Circuit and Ninth Circuit. See Boudreaux v. American Workover, Inc., 680 F.2d 1034 (1982) (en banc) (Tate, J.).
[ Footnote 9 ] Perini bases its standing argument on 21(c) of the Act, 33 U.S.C. 921(c). See n. 7, supra. According to Perini, the Director is not "adversely affected or aggrieved" by the decision below, and does not have standing before this Court. Perini relies on several Court of Appeals decisions which, in construing 21(c), have held the Director to be without statutory standing in cases before the Courts of Appeals. See Fusco v. Perini North River Associates, 601 F.2d 659 (CA2 1979), vacated and remanded on other grounds, 444 U.S. 1028 , adhered to on remand, 622 F.2d 1111 (CA2 1980), cert. denied, 449 U.S. 1131 (1981); Director, OWCP v. Donzi Marine, Inc., 586 F.2d 377 (CA5 1978); and I. T. O. Corp. of Baltimore v. Benefits Review Board, 542 F.2d 903 (CA4 1976), vacated and remanded on other grounds sub nom. Adkins v. I. T. O. Corp. of Baltimore, 433 U.S. 904 , adhered to on remand, 563 F.2d 646 (1977).
Section 21(c) is not relevant to our present inquiry. Perini concedes that 21(c) applies on its face to statutory review before the courts of appeals. Moreover, the cases on which Perini relies do not purport to address the Art. III standing issue.
[ Footnote 10 ] 20 CFR 802.410(b) (1982). Section 39 of the Act, as set forth in 33 U.S.C. 939, provides that "the Secretary [of Labor] shall administer the provisions of this chapter, and for such purpose the Secretary is authorized (1) to make such rules and regulations . . . as may be necessary in the administration of this chapter." The Secretary has assigned enforcement and administration responsibilities to the Director.
[ Footnote 11 ] We acknowledge that on three occasions, this Court has granted petitions for certiorari to review cases brought by the Director. See Director, OWCP v. Walter Tantzen, Inc., 446 U.S. 905 (1980), vacating and remanding Walter Tantzen, Inc. v. Shaughnessy, 601 F.2d 670 (CA2 1979), revised on remand, 624 F.2d 5 (1980); Director, OWCP v. Rasmussen, 436 U.S. 955 (1978); and Director, OWCP v. Jacksonville Shipyards, Inc. 433 U.S. 904 (1977), vacating and remanding Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533 (CA5 1976), adhered to on remand, 575 F.2d 79 (1978), cert. denied, 440 U.S. 967 (1979).
Tantzen and Jacksonville Shipyards were both summary dispositions, and Rasmussen was decided on the merits, see Director, OWCP v. Rasmussen, 440 U.S. 29 (1979). In none of these cases did we have occasion to consider whether the Director had standing in his own right to seek review of a decision of the Benefits Review Board with which the Director disagreed. In Rasmussen, the employer and the insurer also petitioned for certiorari, and the cases were consolidated. It was not necessary to consider the issue of the Director's standing in that case because a justiciable controversy was before the Court by virtue of the petition of the employer and insurer. In both Tantzen and Jacksonville, the Director had defended a Board decision in the Courts of Appeals as the federal respondent, and continued to defend the Board decision before this Court. See n. 13, infra.
[ Footnote 12 ] This Court's Rule 19.6 provides in part: "All parties other than petitioners shall be respondents, but any respondent who supports the position of a petitioner shall meet the time schedule for filing papers which is provided for that petitioner . . . ."
Under Rule 19.6, Churchill is a party in this Court by virtue of his being a party in the proceedings below. Moreover, he has demonstrated his continued stake in the outcome of this case by filing in support of the Director at both the certiorari and merits stages of the proceedings.
[ Footnote 13 ] The fact that Perini concedes that the Director was a proper party respondent before the Court of Appeals in this case means that no question is thereby presented concerning whether the Director, as party respondent below, is a "party" for purposes of 28 U.S.C. 1254(1), which states that a writ of certiorari may be "granted upon the petition of any party" below.
Given that the parties do not question the identity of the federal respondent, it is not necessary for us to decide the issue explicitly left open by the Court in Northeast Marine Terminal Co. v. Caputo, 432 U.S., at 256 , n. 11, as to whether the Director is a proper party respondent in the Court of Appeals. Although we declined to address this issue because the parties did not raise it in Northeast Marine Terminal, we noted that "[t]he Department of Labor has recently promulgated a regulation making it clear that the Director of OWCP is the proper federal party in a case of this nature. 42 Fed. Reg. 16133 (Mar. 1977)." Ibid.
[ Footnote 14 ] Article III, 2, extends the federal power "to all Cases of admiralty and maritime Jurisdiction." In Jensen, we held that state compensation Acts could not cover longshoremen injured seaward of the water's edge. The line of demarcation between land and water became known as the "Jensen line."
[ Footnote 15 ] See Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920); Washington v. W. C. Dawson & Co., 264 U.S. 219 (1924).
[ Footnote 16 ] Section 3(a), 44 Stat. (part 2) 1426, also excluded from coverage "[a]n officer or employee of the United States or any agency thereof or of any State or foreign government, or of any political subdivision thereof."
[ Footnote 17 ] The 1927 Act did not contain any provision that an injured employee must be "engaged in maritime employment" at the time of injury in order to be covered. Rather, the Act employed the expression "maritime employment" only as part of the definition of a statutory "employer."
[ Footnote 18 ] In Davis, our concern for the employer's dilemma was related to the fact that because the employer did not know with any certainty whether his employee would be covered under the LHWCA, "[t]he employer's contribution to a state insurance fund may therefore wholly fail to protect him against the liabilities for which it was specifically planned." 317 U.S., at 255 . We resolved that dilemma in Calbeck v. Travelers Insurance Co., 370 U.S. 114 (1962), by making it clear to employers that if they required their employees to work upon actual navigable waters, those employees would be covered by the LHWCA. The dissent takes this certainty in favor of LHWCA coverage to mean that in 1972 Congress wanted to ensure that employers like Perini would have only to pay for state compensation benefits, and would not have to obtain more costly LHWCA protection.
The dissent's concern about duplicative insurance seems exaggerated for two reasons. First, even under the dissent's view of coverage, both state and federal remedies are available to injured workers, and employers with employees working on the shore would have to contribute to state compensation funds in the event that an employee covered by the LHWCA's shoreside extension sought state compensation, or an employee was deemed for whatever reason not to be eligible for LHWCA relief. "[T]he 1972 extension of federal jurisdiction supplements, rather than supplants, state compensation law." Sun Ship, Inc. v. Pennsylvania, 447 U.S., at 720 .
We also note that the dissent argues that before 1972, the financial burden of duplicative coverage was not heavy because LHWCA benefits were lower than they now are, and insurance carriers would cover LHWCA operations for a nominal addition to state compensation program premiums. There is nothing in the record in this case, in the legislative history, or, for that matter, in the dissent, concerning whether the relative spread between state and federal insurance premiums is higher now than before 1972.
Second, the dissent's view clearly does not result in any certainty whatsoever for employers like Perini with respect to whether those employers have to pay for LHWCA coverage. If any Perini employee (including Churchill) were to engage in loading, unloading, or repairing of the barge on which Churchill was working, the employee would be covered. Indeed, [459 U.S. 297, 309] if Churchill himself had to make some minor mechanical adjustment on the barge and was injured while doing so, he would be covered under the dissent's view.
[ Footnote 19 ] We noted in Sun Ship, Inc. v. Pennsylvania, supra, that in extending LHWCA coverage into the "maritime but local" zone, Calbeck did not overturn Davis "by treating the federal statute as exclusive." 447 U.S., at 718 -719. Rather, Calbeck eliminated the "jurisdictional dilemma" that resulted from the existence of two spheres of exclusive jurisdiction, by making injuries within the "maritime but local" sphere compensable under either state or federal law.
[ Footnote 20 ] The majority opinion in Davis assumed that if the claimant in that case sought federal relief, and such relief was awarded at the administrative stage of the proceedings, the Court would have sustained the award under Parker. In his dissent in Davis, Chief justice Stone argued that the federal Act applied to give exclusive relief in that case: "after our decision in Parker v. Motor Boat Sales, . . . [the Davis claimant's] right of recovery under the federal act can hardly be doubted." 317 U.S., at 260 .
Professor Robertson has noted that "Parker should have meant the abolition of the `maritime but local' exception," but that Davis indicated that the doctrine had continued vitality. D. Robertson, Admiralty and Federalism 210 (1970). Professor Robertson also states that if the claimant in Davis had sought federal, rather than state, compensation, "the Parker case would certainly have said that [the claimant] could get it." Id., at 211.
[ Footnote 21 ] The dissent attempts to carve a new "maritime but local" area in which the exclusive remedy is state compensation. The dissent argues that Congress meant to exclude from LHWCA coverage all employees who are not longshoremen or harbor workers, and that only longshoremen and harbor workers possess the "direct link to maritime commerce" necessary for LHWCA coverage. According to the dissent, the pre-1972 case law, with the exception of Parker, supports its position. The dissent's view rests on a misreading of our decisions in Davis and Calbeck, and a failure to consider the impact of Parker, Davis, and Calbeck on the scope of pre-1972 coverage.
The dissent points out that Davis involved an employee who sought state compensation, and it concludes that Davis says nothing about LHWCA coverage. The employee in Davis was standing on a barge and assisting in the dismantling of a bridge, an activity that would clearly not have the "direct link to maritime commerce" that the dissent suggests is required. Although though the Davis employee sought state compensation, both the Davis majority and the Davis dissent assumed that if the Davis employee sought LHWCA coverage, Parker would require that he get it. In Calbeck, the claimants were welders performing work on vessels, but our holding in Calbeck was clearly predicated on Parker and Davis, and cannot properly be characterized as a case where LHWCA coverage was predicated on the existence of some "direct link to maritime commerce" or "traditional" LHWCA employment. The dissent claims that since Churchill could be covered by a state compensation remedy, it is consistent with Calbeck to deny LHWCA coverage. This, of course, neglects the fact that Calbeck made clear that "Congress brought under the coverage of the Act all such injuries [suffered by employees working on the navigable waters] whether [459 U.S. 297, 312] or not a particular one was also within the constitutional reach of a state workmen's compensation law." 370 U.S., at 126 -127.
Parker, Davis, and Calbeck were read by the lower federal and state courts not to limit LHWCA coverage only to "traditional" maritime activities, but to cover injuries that occurred on the navigable waters in the course of employment. See, e. g., Nalco Chemical Corp. v. Shea, 419 F.2d 572 (CA5 1969) (a pilot salesman traveling to offshore platform); Interlake S.S. Co. v. Nielsen, 338 F.2d 879 (CA6 1964) (watchman), cert. denied, 381 U.S. 934 (1965); Radcliff Gravel Co. v. Henderson, 138 F.2d 549 (CA5 1943) (workers who trimmed sand and gravel loaded on barges after being dredged from water bed), cert. denied, 321 U.S. 782 (1944); Rex Investigative and Patrol Agency, Inc. v. Collura, 329 F. Supp. 696 (EDNY 1971) (land-based employee sent temporarily onto vessel to act as watchman); Standard Dredging Corp. v. Henderson, 57 F. Supp. 770 (Ala. 1944) (employee engaged in dredging bed of intracoastal canal); Ford v. Parker, 52 F. Supp. 98 (Md. 1943) (night watchman); Perry v. Baltimore Contractors, Inc., 202 So.2d 694 (La. App. 1967) (worker injured while diving in order to assist in construction of a tunnel under intracoastal canal), cert. denied, 390 U.S. 1028 (1968). This list is by no means exhaustive, and does not include various administrative decisions.
In another case, Pennsylvania R. Co. v. O'Rourke, 344 U.S. 334 (1953), we held that a statutory "employer" existed as long as the employer had any employee engaged in "maritime employment," and that it was not necessary that the injured employee be the one employee that made his employer a statutory "employer." However, we also held in that case that the injured employee was, in fact, engaged in maritime employment when he was working as a railway brakeman, removing railroad cars from a car float by the use of an ordinary switch engine. Id., at 340. Although Pennsylvania R. Co. involved a question as to which of two federal statutes applied to cover the employee's injury (the LHWCA or the Federal Employers' Liability Act), and did not involve an application of the "maritime but local" doctrine, the Deputy Commissioners had interpreted Pennsylvania R. Co. to mean "that injury over the water means, without much more inquiry, that they ought to grant [LHWCA] awards." Robertson, supra n. 20, at 220. In the two cases that came to us in Calbeck, the Deputy Commissioners had granted LHWCA awards on the basis of Pennsylvania R. Co. See Robertson, supra n. 20, at 219-220.
[ Footnote 22 ] We note that the new coverage section still provides that no compensation shall be paid to "[a]n officer or employee of the United States or any agency thereof or of any State or foreign government, or of any political subdivision thereof." 3(a)(2), 33 U.S.C. 903(a)(2).
[ Footnote 23 ] "Injury" is defined in 2(2), 33 U.S.C. 902(2), as "accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of a third person directed against an employee because of his employment."
[ Footnote 24 ] "Employer" is defined in 2(4), 33 U.S.C. 902(4) as "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)."
The Reports also add: "[T]he Committee has no intention of extending coverage under the Act to individuals who are not employed by a person who is an employer, i. e., a person at least some of whose employees are engaged, in whole or in part in some form of maritime employment. Thus, an individual employed by a person none of whose employees work, in whole or in part, on navigable waters, is not covered even if injured on a pier adjoining navigable waters." S. Rep., at 13; H. R. Rep., at 11.
We note that there is an apparent inconsistency between the actual wording of 2(4) and the expression in the legislative history. Section 2(4) defines an "employer" to be the employer of any employee engaged in maritime [459 U.S. 297, 315] employment on the "navigable waters" as defined by the 1972 Amendments to include the expanded landward situs. The legislative history, however, appears to contemplate that a statutory employer must have at least one employee working over the actual navigable waters before any employee injured on the new land situs can be covered.
[ Footnote 25 ] We see no real distinction between the "direct relationship" test used to articulate the "maritime but local" doctrine, and the "significant relationship" test urged by Perini. In support of the use of this test, Perini relies on the "maritime but local" cases.
[ Footnote 26 ] The reasons for the extended landward coverage are set forth in Report sections labeled "Extension of Coverage to Shoreside Areas":
[ Footnote 27 ] Perini argues that Congress' intent to eliminate the problem associated with movement from covered to noncovered areas will be frustrated by our holding because some employees may be deemed to satisfy the status test while working upon the navigable waters, but be deemed not to satisfy the status test when performing the same activity on land.
We have had two opportunities to examine the scope of landward coverage under the 1972 Amendments. See Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977), and P. C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979). In neither case did we interpret the "maritime employment" status provision to require an examination into whether the employment had a "direct" or "significant relationship to navigation or commerce." Rather, in both cases, we decided that the employees were covered because they were "engaged in longshoring operations," and thus fit one of the categories explicitly enumerated by Congress as part of "maritime employment." See 432 U.S., at 271 , 273; 444 U.S., at 82 .
We have had no occasion as yet to determine other possible applications of the status test to activities performed on the expanded landward situs. Although we do not maintain that landward coverage could never be determined by reference to anything but the explicitly enumerated categories of activities in the 2(3) definition of "employee," we note that our cases to date have focused on these explicit categories because the legislative history indicates that Congress intended to extend landward coverage to those specifically included occupations. See S. Rep, at 13; H. R. Rep., at 10-11. See also Northeast Marine Terminal Co., supra, at 273. Regardless of the potential difficulties that may arise in the future in applying the status test to land-based injuries, it is clear that in extending coverage landward, Congress sought to make available LHWCA compensation to those who, before the 1972 Amendments, regularly did move from covered to noncovered areas, but did not intend to withdraw coverage from those employees, traditionally covered by the Act, who were injured in the course of their employment on navigable waters as previously defined.
[ Footnote 28 ] Ignoring the references in the Committee Reports to the fact that in 1972 Congress merely sought to extend benefits landward, the dissent focuses instead on passages in the legislative history which indicate that Congress wanted to extend benefits to certain employees who regularly did (in Congress' view) walk in and out of coverage, and who performed the same tasks on land as they performed over the actual navigable waters. The dissent concludes from this that Congress sought to withdraw coverage from those employees injured over the actual navigable waters in the course of employment who would have been covered before 1972 and who we now hold are "engaged in maritime employment" for purposes of the amended LHWCA. The fact that Congress desired to extend coverage landward for a certain group of employees does not tend to prove that Congress sought to withdraw coverage from another group of employees who were customarily covered before the 1972 Amendments. The dissent's view would relegate a number of employees to state compensation remedies in the face of express and extensive congressional findings that "most State Workmen's Compensation laws provide benefits which are inadequate." S. Rep., at 12-13; H. R. Rep., at 10.
The dissent claims that it "cannot find a single word" in the legislative history to support LHWCA coverage of any employee who is not a longshoreman or harbor worker. Post, at 330. The word that the dissent overlooks is "maritime" in 2(3) of the Act. Before 1972, employees such as Churchill were considered to be engaged in "maritime" employment. In order to withdraw coverage from employees, such as Churchill, who are maritime employees injured in the course of their employment upon the actual navigable waters, Congress would have had to ignore the consistent interpretation given the Act before 1972, by the Director, the Deputy Commissioners, the courts, and the commentators. See n. 21, supra.
[ Footnote 29 ] Perini cites our decision in Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249 (1972), and argues that the LHWCA is premised upon admiralty jurisdiction, which requires a connection between an employee and traditional maritime activity. Perini's reliance on Executive Jet is misplaced. In that case, the only issue before the Court was whether federal admiralty jurisdiction extended to tort claims arising out of the crash of an airplane into navigable waters on a flight "within the continental United States, which [is] principally over land." Id., at 266. Jurisdiction in Executive Jet was predicated on 28 U.S.C. 1333(1), which provides that the federal district courts have original and exclusive jurisdiction of "[a]ny civil case of admiralty or maritime jurisdiction."
The explicit language of Executive Jet makes it clear that our discussion was occasioned by "the problems involved in applying a locality-alone test of admiralty tort jurisdiction to the crashes of aircraft" in a situation where "the fact that an aircraft happens to fall in navigable waters, rather than on land, is wholly fortuitous." 409 U.S., at 265 , 266. Although the term "maritime" occurs both in 28 U.S.C. 1333(1) and in 2(3) of the Act, these are two different statutes "each with different legislative histories and jurisprudential interpretations over the course of decades." Boudreaux v. American Workover, Inc., 680 F.2d 1034, 1050 (CA5 1982) (footnote omitted). In addition, Churchill, as a marine construction worker, was by no means "fortuitously" on the water when he was injured.
[ Footnote 30 ] The dissent argues that it is "now perfectly clear" that Churchill (or any other "shore-based worker" injured upon actual navigable waters) could have received a state compensation award, and there should be no concern about such an employee being left without a remedy. This position is by no means "perfectly clear." See, e. g., Holcomb v. Robert W. Kirk and Associates, Inc., 655 F.2d 589 (CA5 1981) (watchman injured while working on vessel sought compensation under state scheme, and was denied recovery because injury was covered under LHWCA - Court of Appeals granted LHWCA compensation, holding that when Congress passed the 1972 Amendments, it took for granted that injuries occurring on the actual [459 U.S. 297, 321] navigable waters were covered under Parker, Davis, Pennsylvania R. Co., Calbeck, and the myriad lower court cases applying our decisions); Rex Investigative and Patrol Agency, 329 F. Supp., at 698 (the court found that the injured watchman's state compensation claim had been dismissed because the "claim properly belonged before a federal, rather than a [New York] state, agency").
[ Footnote 31 ] Certain comments made in the debates preceding passage of the 1972 Amendments in the House indicate support for our view that Congress intended to extend protection in 1972, and not to withdraw protection. For example, Representative Steiger posed the following question and answer to explain the coverage provision:
[ Footnote 32 ] In both Northeast Marine Terminal Co., 432 U.S., at 263 -264, and P. C. Pfeiffer Co., 444 U.S., at 78 -79, we recognized that the status requirement is occupational and the situs test is geographic.
[ Footnote 33 ] See also, e. g., 1A E. Benedict, Admiralty 17, 19 (7th rev. ed. 1982); Gilmore & Black, at 428-430; Robertson, Injuries to Maritime Petroleum Workers: A Plea for Radical Simplification, 55 Texas L. Rev. 973, 986-987 (1977); Comment, Broadened Coverage under the LHWCA, 33 La. L. Rev. 683, 694 (1973); Note, 54 N.C. L. Rev. 925, 940 (1976). But see 4 A. Larson, Law of Workmen's Compensation 89.27, 89.41 (1982); Tucker, Coverage and Procedure under the Longshoremen's and Harbor Workers' Compensation Act Subsequent to the 1972 Amendments, 55 Tulane L. Rev. 1056, 1062 (1981).
[ Footnote 34 ] Our holding, of course, extends only to those persons "traditionally covered" before the 1972 Amendments. We express no opinion whether such coverage extends to a worker injured while transiently or fortuitously upon actual navigable waters, or to a land-based worker injured on land who then falls into actual navigable waters. Our decision today should not be read as exempting water-based workers from the new status test. Rather, our holding is simply a recognition that a worker's performance of his duties upon actual navigable waters is necessarily a very important factor in determining whether he is engaged in "maritime employment."
Contrary to the suggestion by the dissent, post, at 342-343, n. 26, there is no inconsistency in our failing to decide the question of coverage as to these employees, and our reliance on Parker. In Parker, we held that the injured employee was engaged in "maritime employment" in a situation where we did not discuss whether the employer was a statutory "employer."
JUSTICE REHNQUIST, concurring in the judgment.
At the time of his injury, Churchill was engaged in unloading materials from a supply barge to a cargo barge. This work is very much like the work of longshoremen, who typically load and unload vessels. Therefore Churchill was "engaged in maritime employment" within the meaning of 2(3) of the Act, and was within its coverage. Accordingly, I concur in the judgment of the Court.
JUSTICE STEVENS, dissenting.
Neither the legislative history nor the judicial history on which the Court relies today justifies a departure from the language of the statute defining the post-1972 coverage of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA). Indeed, when the issue is viewed in its proper historical perspective, it becomes even more clear that a literal reading of the Act will avoid anomalies that troubled Congress in 1972 as well as unnecessary litigation and duplicate [459 U.S. 297, 326] insurance coverage in the post-1972 period. I shall first comment on the statutory language and then discuss its history.
The principal focus of the statute is identified by its title as well as its text. It provides workers' compensation benefits for injuries to longshoremen and harbor workers. 1 The coverage of the statute is defined by two basic tests - a situs test focusing on the place where the injury occurred, and a status test focusing on the character of the injured employee's occupation. An injured person is entitled to compensation under the Act only if he satisfied both tests at the time of the injury. The two tests work together to provide comprehensive coverage for a large class of workers who perform hazardous longshore and ship repair work.
The requisite occupational status is defined in 2(3) of the Act. It provides: [459 U.S. 297, 327]
First, one of the oldest and most respected rules of statutory construction teaches us that general terms should be construed in the light of the specific examples that are expressly identified as included therein. In this statute, the subcategories - longshoremen and harbor workers - are both described in detail, and no other subcategory is even mentioned, giving rise to an especially strong inference that Congress intended a snug fit between "maritime employment" and the two subcategories. 2
This inference is corroborated by the fact that Congress took the trouble to add language making it clear that the statutory [459 U.S. 297, 328] concept of "maritime employment" was not intended to describe either the master or a member of the crew of any vessel. 3 In short, the ordinary meaning of the words "maritime employment" is actually excluded from the description of the occupational categories that Congress intended the LHWCA to cover.
It is also clear that the definition of "employee" is entirely unaffected by where he may be injured; if a worker is not an "employee" when ashore, he is not an "employee" when afloat. Therefore, it is critically significant that the definition of where "employees" are covered - the situs provision - reveals the same limited concern for the same key occupations as the status provision. An "employee" is covered only while on navigable waters and on "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) (emphasis added).
If we ignore history, and merely concentrate on the text of this statute, the conclusion is inescapable that it merely provides coverage for people who do the work of longshoremen and harbor workers - amphibious persons who are directly involved in moving freight onto and off ships, or in building, repairing, or destroying ships. A "checker" is such a worker. 4 So are "terminal laborers," Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977), "cotton headers," P. C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979), and "warehousemen," ibid. A construction worker on a sewage treatment plant plainly lacks this direct link to maritime commerce, regardless of where he may have been working at the time of his injury. [459 U.S. 297, 329]
If we examine the legislative history of the 1972 Amendments 5 - without regard to the text of the statute or judicial [459 U.S. 297, 330] decisions that are unmentioned in that history - we must reach the same conclusion. I cannot find a single word 6 in the Committee hearings, the Committee Reports, or the legislative debates that even suggests that any Congressman or Senator believed that the statute provided coverage for anyone other than longshoremen, harbor workers, and persons in the entirely separate categories that had been included by special statutory enactment. 7 [459 U.S. 297, 331]
At the opening of the House Subcommittee hearings, Congressman Daniels explained his understanding of the existing scope of the LHWCA 8 and the need for amendments:
When the House and Senate Committees reported out their respective bills, they had granted the sought-after increase in benefits. They had also amended the provisions defining the scope of coverage, including the language of "status" and "situs" discussed in the previous section. They had done so in response to a problem in the scope of prior coverage. Before 1972, longshoremen's and harbor workers' federal coverage had stopped at the water's edge. Because their duties regularly took them off the vessel and onto the [459 U.S. 297, 333] pier, they were constantly "walking in and out of coverage." On the House side, Joseph Leonard, the international safety director of the International Longshoremen's Association, spoke about the hardship this system imposed:
The Committee amendments responded to this problem by defining the protected situs to encompass the entire area in which members of the protected class customarily perform their regular duties. This definition of situs clearly precludes coverage for a construction worker standing on a sewage treatment plant or a bridge. Yet if one accepts the view of the claimant in this case, the statute grants him coverage while aboard a floating vessel and therefore expects him to walk in and out of coverage during a typical workday. Such a view is flatly inconsistent with the explicit intent of Congress to "permit a uniform compensation system to apply to employees who would otherwise be covered by this Act for [only] part of their activity." H. R. Rep. No. 92-1441, pp. 10-11 (1972); S. Rep. No. 92-1125, p. 13 (1972). 11 Only if [459 U.S. 297, 335] we adhere to the language used by Congress to define the relevant status harmoniously with the relevant situs can the congressional purpose be achieved.
The pre-1972 judicial history of the LHWCA confirms my construction of the 1972 Amendments and also explains why the work of longshoremen and harbor workers is described as "maritime employment" in the statute. Only once during the 45-year interval between the enactment of the LHWCA in 1927 and its amendment in 1972, in Parker v. Motor Boat Sales, Inc., 314 U.S. 244 (1941), did this Court uphold an award of benefits under the LHWCA for a worker who was neither a longshoreman nor a harbor worker. 12 That lonely decision rested on a concern that is no longer significant, and surely provides an insufficient predicate for the Court's all-inclusive interpretation of "maritime employment." Before commenting specifically on the Parker case, however, I shall briefly identify the two principal chapters in the pre-1972 history of the LHWCA.
The first chapter (which covers the period from 1917 to 1927) explains why there was a need for federal legislation to provide compensation for injured longshoremen and harbor workers. Prior to 1917, it was assumed that these workers were adequately protected by whatever state legislation existed. In that year, however, this Court held that the national [459 U.S. 297, 336] interest in the uniform regulation of maritime commerce precluded state jurisdiction over injuries occurring on navigable waters. Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917). 13
Over the classic dissents of two of our greatest Justices, the Court adhered to that view even though Congress twice attempted to authorize the exercise of state jurisdiction over these "maritime" injuries. 14 The so-called "Jensen line" thus developed as a constitutional limit on the exercise of state power over maritime employment.
The reasoning of the Jensen case originally appeared to foreclose the application of state workmen's compensation schemes to any injury occurring on navigable waters. The Court soon made it clear, however, that there was a somewhat vaguely defined area - an area that became known as the "maritime but local" area - in which state jurisdiction survived. Thus, in 1922, five years before the enactment of the LHWCA, the Court held that a carpenter injured at work aboard an uncompleted ship that had been launched in the Willamette River could recover under the Oregon Workmen's Compensation Law. Grant Smith-Porter Ship Co. v. [459 U.S. 297, 337] Rohde, 257 U.S. 469 (1922). The national interest in uniformity that had been considered paramount in Jensen was not thought to be materially prejudiced by Oregon's regulation of "certain local matters." 15
Unlike the work of the carpenter in Rohde, the work of the longshoreman was considered by the Court to have a character that required regulation by a uniform federal scheme. That much was made clear by the Court's opinion in Northern Coal and Dock Co. v. Strand, 278 U.S. 142 (1928), 16 a case involving a fatal shipboard injury to a longshoreman.
The second chapter (which covers the period from 1927 to 1972) explains why it was necessary for Congress to limit the [459 U.S. 297, 338] coverage of the LHWCA to a defined category of employees. As originally enacted in 1927, the LHWCA was merely intended to fill the gap in state coverage that had been created by Jensen and its progeny. 17 The provision that defined the scope of coverage, 903(a) (which remained unchanged until 1972), purported to exclude federal coverage if recovery may "validly be provided by State law." At first, the statutory language was taken literally, and state and federal coverage were thought to be purely complementary and mutually exclusive. See Crowell v. Benson, 285 U.S. 22, 39 , and n. 3 (1932). But given the imprecision of the Jensen-Rohde line, that system risked serious unfairness: If an injured employee asked for state benefits and was seaward of the line, a literalist interpretation of the LHWCA would bar recovery. An employee close to the line might easily misguess, miss the statute of limitations, and end up with no benefits at all.
This Court responded to this potential for injustice in two ways. Notwithstanding the plain language of the statute which purported to describe mutually exclusive spheres of state and federal jurisdiction, 18 the Court first upheld a state award in a case in which it was assumed that the federal statute would also apply, Davis v. Department of Labor, 317 U.S. 249 (1942), and then upheld a federal award in a case in which the Court assumed that recovery could "validly be provided [459 U.S. 297, 339] by State law." Calbeck v. Travelers Insurance Co., 370 U.S. 114 (1962). 19 But the Court's mechanism for ensuring that no employee would go entirely unprotected created a twilight zone of overlapping jurisdiction in which many employers were required to obtain duplicate insurance coverage. 20 Moreover, the practice of defining coverage entirely by reference to the place where an accident occurred gave rise to the anomalous circumstance that longshoremen regularly walked in and out of coverage during the performance of their routine duties.
Whatever force the Jensen rule may once have had, it is now perfectly clear that a shore-based worker who is normally covered by a state compensation program may still recover state benefits even though he is injured over navigable waters. Surely no Member of this Court would question the [459 U.S. 297, 340] fact that the construction worker injured in this case could have received a state award even though he was on a barge in the Hudson River when he was injured. The concern about the inability of the States to protect land-based workers who may temporarily cross the Jensen line is no longer significant - surely that concern provided no motivation whatsoever for the action Congress took in 1972 when it amended the LHWCA.
On the other hand, the 1972 Congress clearly did have reason to be concerned about the cost of duplicate insurance coverage and the unpredictability of coverage that depends entirely on the happenstance of where an accident occurs. As I have mentioned above, 21 the unpredictability of coverage was mentioned explicitly in the legislative history. And the burdens of duplicate insurance for employees who might occasionally walk into federal coverage became substantially more onerous as a result of the 1972 changes that made federal LHWCA benefits significantly higher than state workers' compensation benefits. 22 Both of these concerns are alleviated by defining the scope of the statutory coverage in terms of the status of the covered employee. And both of these concerns can only be aggravated by indiscriminately [459 U.S. 297, 341] extending coverage to an undefined group of workers who plainly do not "load, unload, build, or repair ships."
All that remains to support the Court's rewriting of the statute is the absence of an expressed intent to withdraw pre-1972 coverage. As I have already noted, that intent is adequately demonstrated by the changes in the text of the statute itself. 23 Even if that were not sufficient, however, the Court is really objecting to nothing more than a failure to mention a single case decided in 1942 - Parker v. Motor Boat Sales, Inc. - during the hearings or the debates. But when one considers the highly unusual facts of that case, it is unlikely that any Member of Congress had it in mind and virtually inconceivable that Congress would have wanted to provide federal coverage for similar future cases. The employee in the Parker case - a janitor for a small boat concern located on the James River - was not protected by a state workmen's compensation program for a reason that had nothing to do with the character of his employment or the place of his injury. The employer did not have the minimum number of employees to bring it under the Virginia statute. See Motor Boat Sales, Inc. v. Parker, 116 F.2d 789, 793 (CA4 1941). The happenstance that the janitor was riding in a motorboat at the time of his injury enabled the Court to find a basis for sustaining an award under the LHWCA as it was then written. 24 Even if the presumption that Congress understands the legal context in which it legislates justifies [459 U.S. 297, 342] the inference that it remembered this isolated case decided three decades earlier, it by no means follows that Congress had a duty to disavow the case explicitly in order to give effect to its otherwise plainly expressed purpose. 25
This case presents us with a straightforward problem of statutory construction. The Court should begin its analysis with the language of the statute itself. "Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). In this case the statutory language plainly encompasses longshoremen and harbor workers; there is no affirmative evidence of a legislative intent to provide coverage for any other type of occupation. Surely there is no evidence of an intent to classify the work of a janitor or a builder of sewage treatment plants as "maritime employment." 26 [459 U.S. 297, 343] Because the claimant in this case was neither a longshoreman nor a harbor worker, I would affirm the judgment of the United States Court of Appeals for the Second Circuit.
[ Footnote 1 ] By reason of several specific statutory enactments, the LHWCA's compensation scheme is, or has been, also applied to:
(a) employees on defense bases, Act of Aug. 16, 1941, ch. 357, 1, 55 Stat. 622 (codified, as amended, at 42 U.S.C. 1651-1654);
(b) employees of nonappropriated fund instrumentalities such as post exchanges, Act of June 19, 1952, Pub. L. 397, 2, 66 Stat. 139 (codified, as amended, at 5 U.S.C. 8171-8173);
(c) employees of Government contractors injured overseas by war-risk hazards, Act of Dec. 2, 1942, ch. 668, Title I, 102, 56 Stat. 1031 (codified, as amended, at 42 U.S.C. 1702);
(d) workers in the District of Columbia, Act of May 17, 1928, ch. 612, 45 Stat. 600, repealed by Act of July 1, 1980, D.C. Law 3-77, 3, see D.C. Code 36-301 (1981); and
(e) workers on oil drilling rigs on the Outer Continental Shelf, Act of Aug. 7, 1953, Pub. L. 212, 4(c), 67 Stat. 463 (codified, as amended, at 43 U.S.C. 1333(c)).
In this case, however, we are concerned with the coverage provided by the LHWCA itself.
[ Footnote 2 ] Coincidentally, two authors named Sutherland have made this point in language that is strikingly suitable to this case. See W. Sutherland, The Shipbuilder's Assistant 77 (1755) ("[T]he straiter and snuger the Sheer lies, the less Wind is held to hinder the Motion of the Ship") (emphasis added); J. Sutherland, Statutes and Statutory Construction 273 (1891) (footnote omitted) ("The words `other persons,' following in a statute the words `warehousemen' and `wharfinger,' must be understood to refer to other persons ejusdem generis, viz., those who are engaged in a like business, or who conduct the business of warehousemen or wharfingers with some other pursuit, such as shipping, grinding, or manufacturing").
[ Footnote 3 ] Seamen are protected under the Jones Act. See 46 U.S.C. 688.
[ Footnote 4 ] See H. R. Rep. No. 92-1441, p. 11 (1972); S. Rep. No. 92-1125, p. 13 (1972); Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977).
[ Footnote 5 ] The 1972 Amendments made two changes that are relevant here. First, they modified the definitions in 33 U.S.C. 902(3) and 902(4). Before the Amendments, the definitions read:
[ Footnote 6 ] The Court assumes that the words "traditionally covered" in the Committee Reports are intended to refer to employees who are not longshoremen or harbor workers. Ante, at 319, quoting S. Rep. No. 92-1125, at 16. See n. 1, supra. In particular, the Court assumes that the Committee was referring to the claimants in Parker v. Motor Boat Sales, Inc., 314 U.S. 244 (1941), Davis v. Department of Labor, 317 U.S. 249 (1942), and Calbeck v. Travelers Insurance Co., 370 U.S. 114 (1962). As I point out in Part III, infra, the Calbeck claimants were shipbuilders, a subcategory of the statutorily defined class of harbor workers, who are of course still covered under the 1972 Act; Davis held only that the claimant was entitled to state benefits; and Parker was plainly not a "traditional" LHWCA case. None of these cases was cited at any time in the hearings or the Reports. In my opinion the reference to the "traditional" coverage of the Act was intended to identify the coverage of longshoremen and harbor workers as opposed to the special categories of coverage defined by specific statutory enactment.
[ Footnote 7 ] See n. 1, supra.
[ Footnote 8 ] None of the original bills proposing amendments to the LHWCA in 1972 embodied any change in the scope of coverage. See H. R. 247; H. R. 3505; H. R. 12006; H. R. 15023; S. 2318; S. 525; S. 1547 (all in 92d Cong., 2d Sess.). The changes were incorporated between the hearings and the final Committee action. See H. R. 12006; S. 2318 (as reported). The hearings are nonetheless relevant because they give more direct evidence of what groups the legislators intended to protect than does the history of pre-1972 Supreme Court decisions.
[ Footnote 9 ] E. g., Statement of James Hodgson, Secretary of Labor, House Hearings, at 47-64 (referring throughout to "longshoremen" and the "longshore industry"); Statement of Ralph Hartman, Bethlehem Steel Corp., id., at 67 ("reference to the Longshoremen's and Harbor Workers' Compensation Act seems to suggest that the only industry involved is `longshoring,' which fails to recognize that the act is also applicable to shipbuilding and ship repair yards - and to the District of Columbia"); Exhibits D1, D2, E, and F to Statement of James Flynn, New York Shipping Association, id., at 98-100 (pointing out how hazardous longshoring is); Statement of Howard McGuigan, AFL-CIO, id., at 255-258 (pointing out how LHWCA benefits were far below 66 2/3% of current wage levels in the longshore industry, in the shipbuilding and ship repair industry, and in the District of Columbia). Cf. Statement of John J. O'Donnell, Air Line Pilots Association, id., at 327-329 (suggesting that coverage be extended to flight crews).
[ Footnote 10 ] The Minority Counsel, Eugene Mittelman, had the following exchange with a representative of the AFL-CIO:
[ Footnote 11 ] The language of the Committee Reports shows how clearly Congress understood who was to be covered:
[ Footnote 12 ] Arguably one other case, mentioned in a footnote of the Court's opinion, ante, at 312, n. 21, echoed Parker's broad construction of the scope of LHWCA coverage. Pennsylvania R. Co. v. O'Rourke, 344 U.S. 334 (1953). There, this Court struck down an award of benefits under the Federal Employers' Liability Act, reasoning that the employee in that case - a brakeman who worked moving freight cars onto "car floats" - could have recovered under the LHWCA. The opinion in O'Rourke is somewhat cloudy, however, since it does not explicitly state that the particular employee was engaged in maritime employment, but only that his employer had such employees. Id., at 339-340. Like the cases on which the Court relies, O'Rourke was not mentioned in the 1972 legislative history.
[ Footnote 13 ] The Court reasoned:
[ Footnote 14 ] See id., at 218-223 (Holmes, J., dissenting); Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 166 -170 (1920) (Holmes, J., dissenting); Washington v. W. C. Dawson & Co., 264 U.S. 219, 228 -239 (1924) (Brandeis, J., dissenting).
[ Footnote 15 ] In explaining why the holding in Rohde was consistent with Jensen and subsequent cases, the Court stated:
[ Footnote 16 ] The Strand case was decided in 1928 but arose out of an injury that had occurred in 1924, prior to the enactment of the LHWCA.
[ Footnote 17 ] "The main impetus for the Longshoremen's and Harbor Workers' Compensation Act was the need to correct a gap made plain by decisions of this Court. We believe that there is only one interpretation of the proviso in 3(a) which would accord with the aim of Congress; the field in which a state may not validly provide for compensation must be taken, for the purposes of the Act, as the same field which the Jensen line of decision excluded from state compensation laws. Without affirming or rejecting the constitutional implications of those cases, we accept them as the measure by which Congress intended to mark the scope of the Act they brought into existence." Parker v. Motor Boat Sales, Inc., 314 U.S., at 250 .
[ Footnote 18 ] See Davis v. Department of Labor, 317 U.S., at 261 (Stone, C. J., dissenting); Calbeck v. Travelers Insurance Co., 370 U.S., at 132 (Stewart, J., dissenting).
[ Footnote 19 ] The Court relies heavily on the proposition that Congress did not wish "to repeal Calbeck" (ante, at 321). It is, of course, true that the claimants in that case are still covered by the Act. What Congress repealed was the statutory language that appeared to preclude coverage for harbor workers like the Calbeck claimants who were injured in the maritime but local area. The problem confronted by the Court in Calbeck simply no longer exists.
[ Footnote 20 ] In 1942, this Court observed:
[ Footnote 21 ] See supra, at 332-334.
[ Footnote 22 ] Before 1972, the financial burden of duplicate coverage had not been particularly heavy. LHWCA benefits were low, and insurance carriers offered to cover operations subject to the LHWCA for only a nominal addition to the state workers' compensation premiums. See Note, 50 Calif. L. Rev. 342, 347 (1962); Comment, 30 NACCA L. J. 200, 203, 206 (1964); Gardner, Remedies for Personal Injuries to Seamen, Railroadmen, and Longshoremen, 71 Harv. L. Rev. 438, 449-450, and n. 34 (1958).
Today, of course, things are quite different. In 1981, LHWCA premiums averaged 252 percent higher than California construction worker premiums, and 160 percent higher than Florida premiums. See Testimony of the Associated General Contractors of America, Hearings on S. 1182 before the Subcommittee on Labor of the Senate Committee on Labor and Human Resources, 97th Cong., 1st Sess., 924-936 (1981).
[ Footnote 23 ] The "status" provision replaced the "unless recovery may validly be provided by state law" language that was being construed in Parker and Calbeck.
[ Footnote 24 ] In 1942, as it does today, the LHWCA expressly excluded coverage of injuries to members of the crew of any vessel and to persons who load or unload small boats. See n. 5, supra. Thus, a janitor could not recover on the theory that he was a member of the crew of the motorboat, or that he helped to load or unload the motorboat. It is difficult to explain the narrow category of workmen associated with motorboat operations for whom Parker expressed concern or for whom the Court preserves coverage today.
[ Footnote 25 ] The Court cites three cases from the Federal District Courts, three from the Courts of Appeals, and one from a state appellate court in which workers who were not longshoremen or harbor workers were stated to have been covered by the LHWCA before 1972. Ante, at 312, n. 21. It uses these cases to support its argument that it would have been a radical and unsettling change for the 1972 Congress to limit post-1972 coverage to people who perform the work of longshoremen and harbor workers. I would draw a somewhat different inference. It is hard to believe that Congress had in mind such a light sprinkling of cases during the 45-year interval between 1927 and 1972 when it spoke of the traditional coverage of the Act, especially given Congressman Daniels' reminder that in 1970 there were 68,000 injuries to longshoremen. See supra, at 332.
[ Footnote 26 ] I note some tension among different components of the Court's opinion with regard to whether the janitor in Parker would be covered after 1972. On the one hand, the Court states:
I agree with the Court that the post-1972 Act provides coverage for "traditional" maritime activities. However, as I have indicated supra, at 328-335, Congress understood such activities to be those of longshoremen and harbor workers, not janitors and construction workers. [459 U.S. 297, 344]