In 1972 Congress amended the Longshoremen's and Harbor Workers'
Compensation Act (Act) to extend coverage to additional workers in
an attempt to avoid anomalies inherent in a system that drew lines
at the water's edge by allowing compensation under the Act only to
workers injured on the seaward side of a pier. The relevant
sections, as so amended, broadened the definition of "navigable
waters of the United States" as the required situs of a compensable
injury to include
"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) (1970 ed., Supp. V), and also modified the
definition of a covered "employee" to mean
"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,"
33 U.S.C. § 902(3) (1970 ed., Supp. V). Respondent Blundo, whose
job as a "checker" at a pier for petitioner International Terminal
Operating Co. was to check and mark cargo being unloaded from a
vessel or from a container (a large metal box resembling a truck
trailer without wheels) which had been taken off a vessel, was
injured when, while marking cargo "stripped" (unloaded) from a
container, he slipped on some ice on the pier. Respondent Caputo,
who, though a member of a regular stevedoring "gang" for another
company, had been temporarily hired by petitioner Northeast Marine
Terminal Co. as a terminal laborer at a pier to load and unload
containers, barges, and trucks, was injured while rolling a dolly
loaded with ship's cargo into a consignee's truck. Compensation
awards to both respondents under the Act, as amended, were upheld
by the Court of Appeals.
Held:
1. Both respondents satisfied the "status" test of eligibility
for compensation, since they were both "engaged in maritime
employment" and
Page 432 U. S. 250
were therefore "employees" within the meaning of § 902(3) at the
time of their injuries. Pp.
432 U. S.
265-279.
(a) Congress' intent to adapt the Act to modern cargo-handling
techniques, such as containerization, which have moved much of the
longshoreman's work off the vessel and onto land, clearly indicates
that such tasks as stripping a container are included in the
category of "longshoring operations" under § 902(3), and hence it
is apparent that respondent Blundo, whose task was an integral part
of the unloading process as altered by the advent of containers,
was a statutory "employee" when he slipped on the ice. Pp.
432 U. S.
269-271.
(b) Both the text of the 1972 amendments to the Act, which
focuses primarily on occupations (longshoreman, harbor worker,
etc.), and their legislative history, which shows that Congress
wanted a system that did not depend on the fortuitous circumstance
of whether the injury occurred on land or over water, demonstrate
that Congress intended to provide continuous coverage to amphibious
workers such as longshoremen, who, without the amendments, would be
covered for only part of their activity, and that therefore the
amendments were meant to cover such a person as respondent Caputo,
who as a member of a regular stevedoring gang worked either on the
pier or on the ship, and who, on the day of his injury in his job
as a terminal laborer, could have been assigned to a number of
tasks, including stripping containers, unloading barges, and
loading trucks. Pp.
432 U. S.
271-274.
(c) Respondents' coverage as "employees" under the Act cannot be
defeated by the so-called "point of rest" theory, whereby
longshoremen's "maritime employment" would be considered, in the
case of unloading, to be taking cargo out of a vessel's hold,
moving it away from the ship's side, and carrying it to its point
of rest on a pier or in a terminal shed, since that theory appears
nowhere in the Act, was never mentioned by Congress during the
legislative process, does not comport with Congress' intent, and
restricts coverage of a remedial Act designed to extend coverage.
Pp.
432 U. S.
274-279.
2. The injuries of both respondents occurred on a "situs"
covered by the Act. Pp.
432 U. S.
279-281.
(a) The truck that respondent Caputo was helping to load was
parked inside the terminal area adjoining "navigable waters of the
United States." P.
432 U. S.
279.
(b) Although respondent Blundo's injuries occurred on a pier
used only for stripping and stuffing containers and for storage,
rather than for loading and unloading ships, nevertheless he too
satisfied the "situs" test, since the pier was located in a
terminal adjoining the water, so that,
Page 432 U. S. 251
even if it is assumed that the phrase "customarily used" in §
903(a) modifies all the preceding terms, rather than only the
immediately preceding term "other adjoining area," he satisfied the
test by working in an "adjoining . . . terminal . . . customarily
used . . . for loading [and] unloading." Pp.
432 U. S.
279-281.
544 F.2d 35, affirmed.
MARSHALL, J., delivered the opinion for a unanimous Court.
MR. JUSTICE MARSHALL delivered the opinion of the Court.
In 1972, Congress amended the Longshoremen's and Harbor Workers'
Compensation Act (LHWCA or Act), 33 U.S.C. § 901
et seq.,
in substantial part to "extend [the Act's] coverage to protect
additional workers." S.Rep. No. 91125, p. 1 (1972) (hereinafter
S.Rep.). [
Footnote 1] In these
consolidated cases, we must determine whether respondents Caputo
and Blundo, injured while working on the New York City waterfront,
are
Page 432 U. S. 252
entitled to compensation. To answer that question, we must
determine the reach of the 1972 Amendments.
The sections of the Act relevant to these cases are the ones
providing "coverage" and defining "employee." They provide, with
italics to indicate the material added in 1972:
"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) (1970 ed., Supp. V).
"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) (1970 ed., Supp. V). Specifically at issue
here is whether respondents Caputo and Blundo were "employees"
within the meaning of the Act, and whether the injuries they
sustained occurred on the "navigable waters of the United
States."
I
At the time of his injury, respondent Carmelo Blundo had been
employed for five years as a "checker" by petitioner International
Terminal Operating Co. (ITO) at its facility in Brooklyn, N.Y.
known as the 21st Street Pier. As a checker, he was responsible for
checking and recording cargo as it was
Page 432 U. S. 253
loaded onto or unloaded from vessels, barges, or containers.
[
Footnote 2] Blundo was
assigned his tasks at the beginning of each day, and, until he
arrived at the terminal, he did not know whether he would be
working on a ship or on shore. He was reassigned during the day if
he completed the task to which he was assigned initially. App.
63-69, 112.
On January 8, 1974, ITO assigned Blundo to check cargo being
"stripped" or removed from a container on the 19th Street side of
the pier. The container Blundo was checking had been taken off a
vessel at another pier facility outside of Brooklyn and brought
overland unopened by an independent trucking company to the 21st
Street Pier. It was Blundo's job to break the seal that had been
placed on the container in a foreign port and show it to United
States Customs Agents. After the seal was broken, Blundo was to
check the contents of the container against a manifest sheet
describing the cargo, the consignees, and the ship on, and port
from which, the cargo had been transported. He was to mark each
item of cargo with an identifying number. After the checking, the
cargo was to be placed on pallets, sorted according to consignees,
and put in a bonded warehouse pending customs inspection. Blundo
was injured as he was marking the cargo stripped from the
container, when he slipped on some ice on the pier.
Id. at
69-74, 86-90.
Blundo sought compensation under the LHWCA. The Administrative
Law Judge concluded that Blundo satisfied the
Page 432 U. S. 254
coverage requirements of the Act and the Benefits Review Board
(BRB) affirmed. [
Footnote 3]
Respondent Ralph Caputo was a member of a regular longshoring
"gang" that worked for Pittston Stevedoring Co. [
Footnote 4] When his gang was not needed,
Caputo went to the
Page 432 U. S. 255
waterfront hiring hall, where he was hired by the day by other
stevedoring companies or terminal operators with work available. He
had been hired on some occasions by Northeast Stevedoring Co. to
work as a member of a stevedore gang on ships at the 39th Street
Pier in Brooklyn; on other occasions, he had been hired by
petitioner Northeast Marine Terminal Co., Inc. (Northeast), for
work in its terminal operations at the same location. App. 8-10,
14-16.
On April 16, 1973, Caputo was hired by Northeast to work as a
"terminal labor[er]." App. to Pet. for Cert. in No. 76-444, p. 48a;
App. 8, 14. A terminal laborer may be assigned to load and unload
containers, lighters, [
Footnote
5] barges, and trucks. [
Footnote 6]
Id. at 8; Brief for Petitioners in
No. 76-444, p. 4. When he arrived at the terminal, Caputo was
assigned, along with a checker and forklift driver, to help
consignees' truckmen load their trucks with cargo that had been
discharged from ships at Northeast's terminal. [
Footnote 7] Caputo was injured while rolling a
dolly loaded with cheese into a consignee's truck. App. 27-40.
The Administrative Law Judge found that Caputo satisfied the
requirements of the Act, and awarded him compensation. The BRB
affirmed. [
Footnote 8]
The employers in both cases filed petitions to review the
Page 432 U. S. 256
decisions and the Court of Appeals for the Second Circuit
consolidated the cases. After thorough consideration of the
language, history, and purposes of the 1972 Amendments, the court
held, one judge dissenting, that the injuries of both respondents
were compensable under the LHWCA. [
Footnote 9] In view of the conflict over the coverage
afforded by the 1972 Amendments, [
Footnote 10] we granted certiorari to consider.both
cases. [
Footnote 11] 429 U,
S. 998 (1976). We affirm.
II
Congress enacted the LHWCA in 1927, 44 Stat. 1424, after this
Court had thwarted the efforts of the States and of Congress
Page 432 U. S. 257
to provide compensation for maritime workers injured on
navigable waters through state compensation programs. In 1917, the
Court, in
Southern Pacific Co. v. Jensen
,
244 U. S. 205,
held that the States were without power to extend a workmen's
compensation remedy to longshoremen injured on the gangplank
between a ship and a pier. The decision left longshoremen injured
on the seaward side of a pier without a compensation remedy, while
longshoremen injured on the pier were protected by state
compensation Acts.
State Industrial Comm'n v. Nordenholt
Corp., 259 U. S. 263
(1922). Dissatisfied with the gap in coverage thus created, and
recognizing that the amphibious nature of longshoremen's work made
it desirable to have "one law to cover their whole employment,
whether directly part of the process of loading or unloading a ship
or not," Congress sought to authorize States to apply their
compensation statutes to injuries seaward of the Jensen line.
[
Footnote 12] Its attempts
to allow such uniform state systems, however, were struck down as
unlawful delegations of congressional power.
Washington v. W.
C. Dawson Co., 264 U. S. 219
(1924);
Knickerbocker Ice Co. v. Stewart, 253 U.
S. 149 (1920). Finally, convinced that the only way to
provide workmen's compensation for longshoremen and
harborworkers
Page 432 U. S. 258
injured on navigable waters was to enact a federal system,
Congress, in 1927, passed the LHWCA.
The Act was, in a sense, a typical workmen's compensation
system, compensating an employee for injuries "arising out of and
in the course of employment." [
Footnote 13] But it was designed simply to be a
gap-filler -- to fill the void created by the inability of the
States to remedy injuries on navigable waters. Thus, it provided
coverage only for injuries occurring "upon the navigable waters of
the United States" and permitted compensation awards only "if
recovery . . . through workmen's compensation proceedings [could]
not validly be provided by state law." [
Footnote 14]
Page 432 U. S. 259
Congress' initial apprehension of the difficulties inherent in
the existence of two compensation systems for injuries sustained by
amphibious workers proved to be well founded. The courts spent the
next 45 years trying to ascertain the respective spheres of
coverage of the state and federal systems. As two commentators
described it, "the relationship between [LHWCA] and the otherwise
applicable State Compensation Act [was] shrouded in impenetrable
confusion." G. Gilmore & C. Black, Law of Admiralty 409 (2d
ed.1975) (Gilmore). It is unnecessary to examine in detail the
Court's efforts to dispel the confusion. [
Footnote 15] Suffice it to say that, while the Court
permitted recovery under state remedies in particular situations
seaward of the Jensen line,
see, e.g., Davis v. Washington
Labor Dept., 317 U. S. 249
(1942), the Court made it clear that federal coverage stopped at
the water's edge.
Nacirema Operating Co. v. Johnson,
396 U. S. 212
(1969).
In
Nacirema Operating Co., supra, the Court held that
the Act did not cover longshoremen killed or injured on a pier
while attaching cargo to ships' cranes for loading onto the ships,
even though coverage might have existed had the men been hurled
into the water by the accident,
Marine Stevedoring Corp. v.
Oosting, 238 F. Supp.
78 (ED Va.1965),
aff'd, 398 F.2d 900 (CA4 1968) (en
banc), [
Footnote 16] or been
injured on the
Page 432 U. S. 260
deck of the ship while performing part of the same operation,
Calbeck v. Travelers Ins. Co., 370 U.
S. 114 (1962). The dissent protested the incongruity and
unfairness of having coverage determined by "where the body falls"
and argued that the Act was "status oriented, reaching all injuries
sustained by longshoremen in the course of their employment." 396
U.S. at
396 U. S. 224
(Douglas, J., dissenting). The majority, however, did not
agree.
"There is much to be said for uniform treatment of longshoremen
injured while loading or unloading a ship. But even construing the
[Extension of Admiralty Jurisdiction Act of 1948, 46 U.S.C. § 740,]
to amend the Longshoremen's Act would not effect this result, since
longshoremen injured on a pier by pier-based equipment would still
remain outside the Act. And construing the Longshoremen's Act to
coincide with the limits of admiralty jurisdiction -- whatever they
may be and however they may change -- simply replaces one line with
another whose uncertain contours can only perpetuate on the
landward side of the Jensen line, the same confusion that
previously existed on the seaward side. While we have no doubt that
Congress had the power to choose either of these paths in defining
the coverage of its compensation remedy, the plain fact is that it
chose instead the line in
Jensen separating water from
land at the edge of the pier. The invitation to move that line
landward must be addressed to Congress, not to this Court."
Id. at
396 U. S.
223-224. [
Footnote
17] In 1972, Congress moved the line.
Page 432 U. S. 261
The 1972 Amendments were the first significant effort to reform
the 1927 Act and the judicial gloss that had been attached to it.
The main concern of the 1972 Amendments was not with the scope of
coverage, but with accommodating the desires of three interested
groups: (1) shipowners who were discontented with the decisions
allowing many maritime workers to use the doctrine of
"seaworthiness" to recover full damages from shipowners regardless
of fault; (2) employers of the longshoremen who, under another
judicially created doctrine, could be required to indemnify
shipowners and thereby lose the benefit of the intended exclusivity
of the compensation remedy; and (3) workers who wanted to improve
the benefit schedule deemed inadequate by all parties. [
Footnote 18] Congress sought to meet
these desires by
"specifically
Page 432 U. S. 262
eliminating suits against vessels brought for injuries to
longshoremen under the doctrine of seaworthiness and outlawing
indemnification actions and 'hold harmless' or indemnity
agreements[; continuing] to allow suits against vessels or other
third parties for negligence[; and raising] benefits to a level
commensurate with present day salaries and with the needs of
injured workers whose sole support will be payments under the
Act."
S.Rep. 5. [
Footnote
19]
In increasing the benefits, however, Congress recognized that
the disparity between the federal compensation rates and the
significantly lower state rates would exacerbate the harshness of
the already unpopular
Jensen line. It also realized that
modern technology had moved much of the longshoreman's work onto
the land, so that, if coverage were not extended, there would be
many workers who would be relegated to what Congress deemed clearly
inadequate state compensation systems. As both the Senate and House
Reports stated:
"[C]overage of the present Act stops at the water's edge;
Page 432 U. S. 263
injuries occurring on land are covered by State Workmen's
Compensation laws. The result is a disparity in benefits payable
for death or disability for the same type of injury depending on
which side of the water's edge and in which State the accident
occurs."
"To make matters worse, most State Workmen's Compensation laws
provide benefits which are inadequate. . . . "
"
* * * *"
"It is apparent that, if the Federal benefit structure embodied
in [the] Committee bill is enacted, there would be a substantial
disparity in benefits payable to a permanently disabled
longshoreman, depending on which side of the water's edge the
accident occurred, if State laws are permitted to continue to apply
to injuries occurring on land. It is also to be noted that, with
the advent of modern cargo-handling techniques, such as
containerization and the use of LASH-type vessels, more of the
longshoreman's work is performed on land than heretofore. [
Footnote 20]"
To remedy these problems, Congress extended the coverage
shoreward. It broadened the definition of "navigable waters of the
United States" to include
"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.
[
Footnote 21]"
At the same time, Congress amended the definition of the persons
covered
Page 432 U. S. 264
by the Act. Previously, so long as a work-related injury
occurred on navigable waters and the injured worker was not a
member of a narrowly defined class, [
Footnote 22] the worker would be eligible for federal
compensation provided that his or her employer had at least one
employee engaged in maritime employment. It was not necessary that
the injured employee be so employed.
Pennsylvania R. Co. v.
O'Rourke, 344 U. S. 334,
344 U. S.
340-342 (1953). But with the definition of "navigable
waters" expanded by the 1972 Amendments to include such a large
geographical area, it became necessary to describe affirmatively
the class of workers Congress desired to compensate. It therefore
added the requirement that the injured worker be "engaged in
maritime employment," which it defined to include
"any longshoreman or other person engaged in longshoring
operations, and any harborworker including a ship repairman,
shipbuilder, and shipbreaker, but . . . not . . . 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) (1970 ed., Supp. V). [
Footnote 23]
The 1972 Amendments thus changed what had been essentially
Page 432 U. S. 265
only a "situs" test of eligibility for compensation to one
looking to both the "situs" of the injury and the "status" of the
injured. We must now determine whether respondents Caputo and
Blundo satisfied these requirements.
III
We turn first to the question whether Caputo and Blundo
satisfied the "status" test -- that is, whether they were "engaged
in maritime employment," and therefore "employees" at the time of
their injuries. [
Footnote
24] The question is made difficult by the failure of Congress
to define the relevant terms -- "maritime employment,"
"longshoremen," "longshoring operations" [
Footnote 25] -- in either the text of the Act or its
legislative history. [
Footnote
26]
Page 432 U. S. 266
The closest Congress came to defining the key terms is the
"typical example" of shoreward coverage provided in the Committee
Reports. [
Footnote 27] The
example clearly indicates an
Page 432 U. S. 267
intent to cover those workers involved in the essential elements
of unloading a vessel -- taking cargo out of the hold, moving it
away from the ship's side, and carrying it immediately to a storage
or holding area. The example also makes it clear that persons who
are on the situs but are not engaged in the overall process of
loading and unloading vessels are not covered. Thus, employees such
as truck drivers, whose responsibility on the waterfront is
essentially to pick up or deliver cargo unloaded from or destined
for maritime transportation are not covered. Also excluded are
employees who perform purely clerical tasks and are not engaged in
the handling of cargo. But while the example is useful for
identifying the outer bounds of who is clearly excluded and who is
clearly included, it does not speak to all situations. [
Footnote 28] In particular, it is
silent on the question of coverage for those people, such as Caputo
and Blundo, who are injured while on the situs,
see
432 U. S.
infra, and engaged in the handling of cargo as it moves
between sea and land transportation after its immediate unloading.
[
Footnote 29]
Page 432 U. S. 268
Nevertheless, we are not without guidance in resolving that
question. The language of the 1972 Amendments is broad and suggests
that we should take an expansive view of the extended coverage.
Indeed, such a construction is appropriate for this remedial
legislation. The Act "must be liberally construed in conformance
with its purpose, and in a way which avoids harsh and incongruous
results."
Voris v. Eikel, 346 U.
S. 328,
346 U. S. 333
(1953). Consideration of the purposes behind the broadened coverage
reveals a clear intent to reach persons such as Blundo and Caputo.
[
Footnote 30]
Page 432 U. S. 269
One of the primary motivations for Congress' decision to extend
the coverage shoreward was the recognition that "the advent of
modern cargo-handling techniques" had moved
Page 432 U. S. 270
much of the longshoreman's work off the vessel and onto land.
S.Rep. 13; H.R.Rep. 10. Noted specifically was the impact of
containerization. Unlike traditional break-bulk cargo handling, in
which each item of cargo must be handled separately and stored
individually in the hold of the ship as it waits in port,
containerization permits the time-consuming work of stowage and
unstowage to be performed on land in the absence of the vessel. The
use of containerized ships has reduced the costly time the vessel
must be in port and the amount of manpower required to get the
cargo onto the vessel. [
Footnote
31] In effect, the operation of loading and unloading has been
moved shoreward; the container is a modern substitute for the hold
of the vessel. As Judge Friendly observed below,
"[s]tripping a container . . . is the functional equivalent of
sorting cargo discharged from a ship; stuffing a container is part
of the loading of the ship even though it is performed on
Page 432 U. S. 271
shore and not in the ship's cargo holds."
Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d
35, 53 (CA2 1976). Congress' intent to adapt the LHWCA to modern
cargo-handling techniques clearly indicates that these tasks,
heretofore done on board ship, are included in the category of
"longshoring operations." [
Footnote 32]
It is therefore apparent that respondent Blundo was a statutory
"employee" when he slipped on the ice. His job was to check and
mark items of cargo as they were unloaded from a container. His
task is clearly an integral part of the unloading process as
altered by the advent of containerization, and was intended to be
reached by the Amendments. Indeed, the Committee Reports explicitly
state: "[C]heckers, for example, who are directly involved in the
loading or unloading functions are covered by the new amendment."
S.Rep. 13; H.R.Rep. 11. We thus have no doubt that Blundo satisfied
the status test. [
Footnote
33]
The congressional desire to accommodate the Act to modern
technological changes is not relevant to Caputo's case, since
Page 432 U. S. 272
he was injured in the old-fashioned process of putting goods
already unloaded from a ship or container into a delivery truck.
Another dominant theme underlying the 1972 Amendments, however,
assists us in analyzing Caputo's status. Congress wanted a "uniform
compensation system to apply to employees who would otherwise be
covered by this Act for part of their activity." S.Rep. 13;
H.R.Rep. 10-11. It wanted a system that did not depend on the
"fortuitous circumstance of whether the injury [to the
longshoreman] occurred on land or over water." S.Rep. 13; H.R.Rep.
10. It therefore extended the situs to encompass the waterfront
areas where the overall loading and unloading process occurs. It is
the view of the respondent Director of the OWCP that a uniform
system must reach "all physical cargo handling activity anywhere
within an area meeting the situs [test]." Brief for Federal
Respondent 20. "[M]aritime employment," in his view,
"include[s] all physical tasks performed on the waterfront, and
particularly those tasks necessary to transfer cargo between land
and water transportation."
Id. at 25. Under this theory, it is clear that the Act
would cover someone who, like Caputo, was engaged in the final
steps of moving cargo from maritime to land transportation: putting
it in the consignee's truck.
We need not decide, however, whether the congressional desire
for uniformity supports the Director's view [
Footnote 34] and entitles
Page 432 U. S. 273
everyone performing a task such as Caputo's to benefits under
the Act. It is clear, at a minimum, that, when someone like Caputo
performs such a task, he is to be covered. The Act focuses
primarily on occupations -- longshoreman, harbor worker, ship
repairman, shipbuilder, shipbreaker. Both the text and the history
demonstrate a desire to provide continuous coverage throughout
their employment to these amphibious workers who, without the 1972
Amendments, would be covered only for part of their activity. It
seems clear, therefore, that, when Congress said it wanted to cover
"longshoremen," it had in mind persons whose employment is such
that they spend at least some of their time in indisputably
longshoring operations and who, without the 1972 Amendments, would
be covered for only part of their activity.
That Caputo is such a person is readily apparent. As a member of
a regular stevedoring gang, he participated on either the pier or
the ship in the stowage and unloading of cargo. On the day of his
injury, he had been hired by petitioner Northeast as a terminal
laborer. In that capacity, he could have been assigned to any one
of a number of tasks necessary to the transfer of cargo between
land and maritime transportation, including stuffing and stripping
containers, loading and discharging lighters and barges, [
Footnote 35] and loading and
unloading
Page 432 U. S. 274
trucks. App. 8. Not only did he have no idea when he set out in
the morning which of these tasks he might be assigned, but, in
fact, his assignment could have changed during the day. Thus, had
Caputo avoided injury and completed loading the consignee's truck
on the day of the accident, he then could have been assigned to
unload a lighter.
Id. at 24. Since it is clear that he
would have been covered while unloading such a vessel, [
Footnote 36] to exclude him from the
Act's coverage in the morning but include him in the afternoon
would be to revitalize the shifting and fortuitous coverage that
Congress intended to eliminate.
Petitioners and the NAS seek to avoid these results by proposing
a so-called "point of rest" theory. [
Footnote 37] The term "point of rest" is claimed to be a
term of art in the industry
Page 432 U. S. 275
that denotes the point where the stevedoring operation ends (or,
in the case of loading, begins) and the terminal operation function
begins (or ends, in the case of loading). Brief for Petitioner in
No. 7454, p. 9.
See n
4,
supra. Petitioners contend that the "maritime
employment of longshoremen" includes only
"the stevedoring activity of the longshore gang (and those
directly involved with the gang) which, in the case of unloading,
takes cargo out of the hold of the vessel, moves it away from the
ship's side, and carries it to its point of rest on the pier or in
a terminal shed."
Brief for Petitioner in No. 74-454, p. 9. Since Caputo and
Blundo were handling cargo that had already reached its first point
of rest, petitioners argue they are not to be covered.
This contention that Congress intended to use the point of rest
as the decisive factor in the "status" determination has several
fatal weaknesses. First, the term "point of rest" nowhere appears
in the Act or in the legislative history. It is difficult to
understand why, if Congress intended to stop coverage at this
point, it never used the term. The absence of a term that is
claimed to be so well known in the industry is both conspicuous and
telling.
But it is not simply the term's unexplained absence that
undermines petitioners' theory. More fundamentally, the
Page 432 U. S. 276
theory is simply too restrictive, failing to accommodate either
the language or the intent of the 1972 Amendments. The operations
petitioners would cover clear are "longshoring operations," and are
appropriately covered by the Act. But petitioners fail to give
effect to the obvious desire to cover longshoremen whether or not
their particular task at the moment of injury is clearly a
"longshoring operation." The theory does not comport with the Act's
focus on occupations and its desire for uniformity. As the First
Circuit noted:
"The evil of the old Act was that it bifurcated coverage for
essentially the same employment. The point-of-rest approach would
seem to result in the same sort of bifurcation, since the same
employee engaged in an activity beyond the point of rest would
cease to be covered."
Stockman v. John T. Clark & Son of Boston, Inc.,
539 F.2d 264, 275 (1976). In addition, the theory fails to
accommodate the intent to cover those longshoring operations that
modern technology had moved onto the land. Coverage that stops at
the point of rest excludes those engaged in loading and unloading
the modern functional equivalents of the hold of the ship. As we
have indicated, Congress clearly intended to cover such operations.
[
Footnote 38]
Page 432 U. S. 277
The only support petitioners can find for their theory is the
fact that it is consistent with the "typical example" given in the
Committee Reports.
See n 27,
supra. But, as we have already indicated,
supra at
432 U. S.
266-267, the example is equally consistent with a
broader view of coverage. Consistency with an illustrative example
is clearly not enough to overcome the overwhelming evidence against
the theory. [
Footnote
39]
In view of all this, it is not surprising that the "point of
rest" limitation has been rejected by all but one of the Circuits
that have considered it, [
Footnote 40] and by virtually all the commentators.
[
Footnote 41]
Page 432 U. S. 278
We too reject it. A theory that nowhere appears in the Act, that
was never mentioned by Congress during the legislative process,
that does not comport with
Page 432 U. S. 279
Congress' intent, and that restricts the coverage of a remedial
Act designed to extend coverage is incapable of defeating our
conclusion that Blundo and Caputo are "employees."
IV
Having established that respondents Blundo and Caputo satisfied
the "status" test for coverage under the Act, we consider now
whether their injuries occurred on a covered "situs" --
"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)."
There is no dispute with respect to Caputo. The truck he was
helping to load was parked inside the terminal area. As petitioner
Northeast correctly concedes, this situs
"unquestionably met the requirements of § 3(a) of the Act, . . .
because the terminal adjoins navigable waters of the United States
and parts of the terminal are used in loading and unloading
ships."
Brief for Petitioners in No. 7444, p. 3 n. 1.
Blundo's injury was sustained while he was checking a container
being stripped on a pier located within a facility known as the
21st Street Pier. The fenced-in facility was located on the water,
and ran between 19th and 21st Streets. It included
Page 432 U. S. 280
two "finger-piers." The pier on the 21st Street end was used to
berth ships for purposes of loading and unloading them. The one on
the 19th Street end was used only for stripping and stuffing
containers and storage.
See the Administrative Law Judge's
decision in Pet. for Cert. in No. 76-454, pp. 52a-53a. Blundo was
working on this latter pier.
Petitioner ITO argues that Blundo was not on a covered situs
because the 19th Street Pier was not "customarily used by an
employer for loading [or] unloading . . . a vessel." The Court of
Appeals labeled this argument "half-hearted," and dismissed it in a
footnote. 544 F.2d at 51 n.19. We agree that the argument does not
merit extended discussion.
First, we agree with the court below that it is not at all clear
that the phrase "customarily used" was intended to modify more than
the immediately preceding phrase "other areas." We note that the
sponsor of the bill in the House, Representative Daniels, described
this section as "expand[ing] the coverage which was limited to the
ship in the present law, to the piers, wharves, and terminals." 118
Cong.Rec. 36381 (1972). There was little concern with respect to
how these facilities were used. [
Footnote 42]
Page 432 U. S. 281
Second, even if we assume that the phrase should be read to
modify the preceding terms, we agree with the BRB and the Court of
Appeals that Blundo satisfied the situs test in the same way that
Caputo did -- by working in an "adjoining . . . terminal . . .
customarily used . . . in loading [and] unloading." The entire
terminal facility adjoined the water, and one of its two
finger-piers clearly was used for loading and unloading
vessels.
Accordingly, we conclude that, when Congress sought to expand
the situs to avoid anomalies inherent in a system that drew lines
at the water's edge, it intended to include an area such as the one
at issue here.
Accord, Stockman v. John T. Clark & Son of
Boston, Inc., 539 F.2d at 271-272;
I.T.O. Corp. of
Baltimore v. BRB, 529 F.2d 1080, 1083-1084 (CA4 1975),
modified en banc, 542 F.2d 903 (1976).
Since we find that both Caputo and Blundo satisfied the status
and the situs tests, we affirm.
It is so ordered.
* Together with No. 76-454,
International Terminal Operating
Co., Inc. v. Blundo et al., also on certiorari to the same
court.
[
Footnote 1]
86 Stat. 1251, Longshoremen's and Harbor Workers' Compensation
Act Amendments of 1972 (hereinafter 1972 Amendments).
[
Footnote 2]
A container is a large metal box resembling a truck trailer
without wheels. It can carry large amounts of cargo destined for
one or more consignees. If the goods are for a single consignee,
the container may be removed from the pier intact and delivered
directly to him, but if it carries goods destined for several
consignees, it must be unloaded or "stripped" and the goods sorted
according to consignee. This operation may be done at the
waterfront or inland. The analogous process during the loading
phase is called "stuffing." App. 889, 998, 101-103, 10107; Brief
for Federal Respondent 7 n. 4; Brief for National Association of
Stevedores as
Amicus Curiae 30.
[
Footnote 3]
Under the 1972 Amendments, contested compensation claims are
heard by an administrative law judge. 33 U.S.C. § 919(d) (1970 ed.,
Supp. V). Review is then available from the BRB, a three-member
board appointed by the Secretary of Labor. The BRB, created by the
1972 Amendments, is empowered
"to hear and determine appeals raising a substantial question of
law or fact taken by any party in interest from decisions with
respect to claims of employees under [the LHWCA]."
33 U.S.C. §§ 921(b)(1), (3) (1970 ed., Supp. V);
see
generally 20 CFR §§ 801-802 (1976). The decisions of the BRB
are subject to review in the courts of appeals. 33 U.S.C. § 921(c)
(1970 ed., Supp. V).
Prior to the 1972 Amendments, cases were heard in the first
instance by deputy commissioners, and review was then available in
the district courts. 33 U.S.C. § 921. There was no administrative
review procedure for LHWCA claims.
The Benefits Review Board Service (BRBS) is the unofficial
reporter of the Board's decisions. The BRB's decision in Blundo's
case may be found at 2 BRBS 376 (1975) as well as in App. to Pet.
for Cert. in No. 76-454, p. 45a. The Administrative Law Judge's
decision is reproduced
id. at 49a. A synopsis of it may be
found at 1 BRBS 71 (ALJ) (1975).
[
Footnote 4]
It is necessary, at this point, to introduce some
terminology.
"A stevedore or stevedore contractor is responsible for loading
or unloading a ship in port by contract with a shipowner, agent, or
charter operator."
U.S. Dept. of Labor, Office of Workers' Compensation Programs
Task Force Report, Longshore and Harbor Workers' Compensation
Program 103 (1976).
"[A] marine terminal operator, who may own or lease the terminal
property, is responsible for the safe handling of the ship, the
delivery and receipt of the ship's cargo, and all movement and
handling of that cargo between the point-of-rest and any place on
the marine terminal property except to shipside."
Ibid.
Typically, the work of getting the cargo on and off the ship is
done by a "gang" of longshoremen "distributed between the ship and
the pier so they can move cargo in an uninterrupted flow."
Id. at 104. A member of the gang may be designated by the
equipment he operates,
e.g., a winchman or hustler
operator, or by the area in which he works,
e.g., holdman.
A typical longshore gang ranges from 12 to 20 workers. Because ship
arrivals are irregular, the demand for a gang varies from day to
day.
Ibid.
[
Footnote 5]
A lighter is a closed barge. App. 8.
See discussion
n 35,
infra.
[
Footnote 6]
It is not clear from the record whether loading vessels with
"ships' stores" and laundry for the crew may be assigned to a
terminal laborer or whether there is a separate classification
called "ship laborer" for this.
Compare App. 8, 24-25
with Brief for Federal Respondent 5 n. 3.
[
Footnote 7]
It was stipulated that all the cargo handled at this terminal
either was going on board a vessel or had come from one. App.
6.
[
Footnote 8]
The BRB decision is reported at 3 BRBS 13 (1975). A synopsis of
the Administrative Law Judge's decision appears at 2 BRBS 4 (ALJ)
(1975). Both opinions may also be found in Pet. for Cert. in No.
76-444, pp. 47a, 51a.
[
Footnote 9]
Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35
(CA2 1976).
[
Footnote 10]
See ibid.; Sea-Land Service, Inc. v. Director, Office of
Workers' Compensation, 540 F.2d 629 (CA3 1976);
Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533 (CA5
1976),
cert. pending sub nom. P. C. Pfeiffer Co. v. Ford,
No. 76-641,
Halter Marine Fabricators, Inc. v. Nulty, No.
76-880, and
Director, Office of Workers' Compensation Programs
v. Jacksonville Shipyards, Inc., No. 76-1166;
Stockman v.
John T. Clark Son of Boston, Inc., 539 F.2d 264 (CA1 1976),
cert. pending, No. 76-571;
I.T.O. Corp. of Baltimore
v. BRB, 542 F.2d 903 (CA4 1976) (en banc),
cert. pending
sub nom Maritime Terminals, Inc. v. Brown, No. 76-706, and
Adkins v. I.T.O. Corp. of Baltimore, No. 76-730. For
discussion of these cases,
see n 40,
infra.
[
Footnote 11]
The Court of Appeals questioned whether the Director of the
Office of Workers' Compensation Programs (OWCP), the federal
respondent here, was a proper party in the Court of Appeals.
Pittston Stevedoring Corp. v. Dellaventura, supra at 42 n.
5. (The OWCP was established by the Secretary of Labor and given
the responsibility to administer several benefits programs,
including the LHWCA. 20 CFR § 701.201 (1976).) It concluded that
some federal participation was proper, and did not reach the
question whether the BRB should have been substituted for the
Director. Petitioners named the Director, rather than the BRB, as a
respondent in the Court of Appeals, and neither party has raised
any question in this Court concerning the identity of the federal
respondent. This question is therefore not before us. The
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).
[
Footnote 12]
H.R.Rep. No. 639, 67th Cong., 2d Sess., 2 (1922). More fully,
the Report noted:
"It is easy to understand the reason why the representatives of
the workmen ask for compensation under State laws. The longshoremen
are no more peripatetic workmen than are the repair men. They do
not leave the port in which they work; they do not go into
different jurisdictions. They are part of the local labor force,
and are permanently subject to the same conditions as are other
local workmen. The work of longshoremen is not all on ship. Much of
it is on the wharves. They may be at one moment unloading a dray or
a railroad car or moving articles from one point on the dock to
another, the next actually engaged in the process of loading or
unloading cargo. Their need for uniformity is one law to cover
their whole employment, whether directly part of the process of
loading or unloading a ship or not."
See also S.Rep. No. 139, 65th Cong., 1st Sess., 1
(1917).
[
Footnote 13]
"Injury," "employee," and "employer" were defined in 33 U.S.C.
§§ 902(2), (3), (4):
"(2) The term 'injury' means 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. .
. . "
"(3) The term 'employee' does not include 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."
"(4) The term 'employer' means an employer any of whose
employees are employed in maritime employment, in whole or in part,
upon the navigable waters of the United States (including any dry
dock)."
[
Footnote 14]
Title 33 U.S.C. § 903 defined the coverage provided by the
Act:
"(a) Compensation shall be payable under this chapter in respect
of disability or death of an employee, but only if the disability
or death results from an injury occurring upon the navigable waters
of the United States (including any dry dock) and if recovery for
the disability or death through workmen's compensation proceedings
may not validly be provided by State law. No compensation shall be
payable in respect of the disability or death of -- "
"(1) 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; or"
"(2) An officer or employee of the United States or any agency
thereof or of any State or foreign government, or of any political
subdivision thereof."
"(b) No compensation shall be payable if the injury was
occasioned solely by the intoxication of the employee or by the
willful intention of the employee to injure or kill himself or
another."
[
Footnote 15]
For discussion of the history,
see Victory Carriers, Inc. v.
Law, 404 U. S. 202,
404 U. S.
204-209 (1971);
Nacirema Operating Co. v.
Johnson, 396 U. S. 212,
396 U. S.
216-224 (1969); Gilmore 417-423; 4 A. Larson, Law of
Workmen's Compensation § 89 (1976); Note, Broadened Coverage Under
the LHWCA, 33 La.L.Rev. 683 (1973).
[
Footnote 16]
Nacirema Operating Co., supra, reversed the en banc
decision of the Fourth Circuit in
Marine Stevedoring Corp.
That decision involved four separate cases in which longshoremen
had been injured in different incidents while engaged in loading
cargo vessels. The Deputy Commissioner awarded compensation to the
man hurled into the water by his accident; the others were found to
be outside the Act's coverage. The Court of Appeals found that all
four should be compensated. No petition for certiorari was sought
in the case involving the worker who fell in the water, and thus
this Court did not have that question before it.
[
Footnote 17]
The Court reiterated its suggestion to Congress in
Victory
Carriers, Inc. v. Law, supra, which held that a longshoreman
injured on the pier by a pier-based forklift could not recover from
the shipowner under a warranty of seaworthiness. The Court noted
the sturdiness of the
Jensen line in the absence of
statutory modification. It observed, however, that,
"if denying federal remedies to longshoremen injured on land is
intolerable, Congress has ample power under Arts. I and III of the
Constitution to enact a suitable solution."
404 U.S. at
404 U. S.
216.
[
Footnote 18]
The Report of the Senate Committee on Labor and Public Welfare
described the need for the bill:
"The Longshoremen's and Harbor Workers' Compensation Act was
last amended in 1961, at which time the maximum benefit under the
Act was set at $70 per week. . . . Clearly, in order to provide
adequate income replacement for disabled workers covered under this
law, a substantial increase in benefits is urgently required."
"
* * * *"
"While everyone has agreed since at least the mid-1960's that
the benefits under this Act should be raised, there has been some
dispute over the years as to whether such benefits should be raised
so long as this compensation law was not the exclusive remedy for
an injured worker. It has been the feeling of most employers that,
while they were willing to guarantee payment to an injured worker
regardless of fault, they would only do so if the right to such
payment was the exclusive remedy, and they would not be subject to
additional law suits because of that injury."
"Since 1946, due to a number of decisions by the U.S. Supreme
Court [starting with
Seas Shipping Co. v. Sieracki,
328 U. S.
85 (1946)], it has been possible for an injured
longshoreman to avail himself of the benefits of the Longshoremen's
and Harbor Workers' Compensation Act and to sue the owner of the
ship on which he was working for damages as a result of this
injury. The Supreme Court has ruled that such ship owner, under the
doctrine of seaworthiness, was liable for damages caused by any
injury regardless of fault. In addition, [under the ruling of
Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp.,
350 U. S.
124 (1956),] shipping companies generally have succeeded
in recovering the damages for which they are held liable to injured
longshoremen from the stevedore on theories of express or implied
warranty, thereby transferring their liability to the stevedore
company, the actual employer of the longshoremen."
S.Rep. 4.
"The end result is that, despite the provision in the Act which
limits an employer's liability to the compensation and medical
benefits provided in the Act, a stevedore employer is indirectly
liable for damages to an injured longshoreman who utilizes the
technique of suing the vessel under the unseaworthiness
doctrine."
Id. at 9.
"The social costs of these law suits, the delays, crowding of
court calendars, and the need to pay for lawyers' services have
seldom resulted in a real increase in actual benefits for injured
workers."
Id. at 4.
[
Footnote 19]
See Pub.L. 92-576, §§ 5-11, 18, 86 Stat. 1253.
[
Footnote 20]
S.Rep. 12-13. This appears in the section of the report called
Extension of Coverage to Shoreside Areas. The House Report H.R.Rep.
No. 92-1441, pp 10-11 (1972) (hereinafter H.R.Rep.) contains the
identical section.
[
Footnote 21]
33 U.S.C. § 903 (1970 ed., Supp. V). Congress also removed the
provision that precluded federal recovery if a state workmen's
compensation remedy were available. It retained the exclusions
contained in 33 U.S.C. §§ 903(a)(1), (a)(2), and (b).
See
n 14,
supra.
[
Footnote 22]
The definition of "employee" excluded
"a master or member of a crew of any vessel, [and] 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). In addition, the coverage section, § 903,
provided that no compensation was pay able in respect of the
disability or death of an employee of the United States.
See n 14,
supra. These exclusions have been retained by the 1972
Amendments,
see n
21,
supra.
[
Footnote 23]
The definition of "employer" was changed so as to correspond
with the broadened definition of navigable waters. Title 33 U.S.C.
§ 902(4) (1970 ed., Supp. V) reads:
"The term 'employer' means an employer any of whose employees
are employed in maritime employment, in whole or in part, upon the
navigable waters of the United States (including any adjoining
pier, wharf, dry dock, terminal, building way, marine railway, or
other adjoining area customarily used by an employer in loading,
unloading, repairing, or building a vessel)."
[
Footnote 24]
There is no question in these cases that the injuries "arose out
of and in the course of employment," and that the employers are
statutory employers.
See App. to Pet. for Cert. in No.
76-454, pp. 53a-54a; App. to Pet. for Cert. in No. 76-444, pp.
52a-53a; Brief for Petitioners in No. 76-444, p. 3.
[
Footnote 25]
As the definition of "employee" makes clear, the category of
persons engaged in maritime employment includes more than
longshoremen and persons engaged in longshoring operations. It is,
however, unnecessary in this case to look beyond these two
subcategories.
This case also does not involve the question whether Congress
excluded people who would have been covered before the 1972
Amendments; that is, workers who are injured on navigable waters as
previously defined.
See Weyerhaeuser Co. v. Gilmore, 528
F.2d 957 (CA9),
cert. denied, 429 U.S. 868 (1976).
[
Footnote 26]
The Reports and discussions used only the terms of the statute,
without elaboration. Thus, for example, the Section-by-Section
Analysis in the Senate Report states:
"Section 2(a) amends section 2(3) of the Act to define an
'employee' as any person engaged in maritime employment. The
definition specifically includes any longshoreman or other person
engaged in longshoreing [
sic] operations, and any
harborworker, including a ship repairman, shipbuilder and
shipbreaker. It does not exclude other employees traditionally
covered, but retains that part of 2(3) which excludes from the
definition of 'employee' masters, crew members or persons engaged
by the master to unload, load or repair vessels of less than
eighteen tons net."
S.Rep. 16.
See also H.R.Rep. 14.
And in the section describing the shoreward extension, the
Committee Reports state:
"The Committee believes that the compensation payable to a
longshoreman or a ship repairman or builder should not depend on
the fortuitous circumstance of whether the injury occurred on land
or over water. Accordingly, the bill would amend the Act to provide
coverage of longshoremen, harbor workers, ship repairmen, ship
builders, shipbreakers, and other employees engaged in maritime
employment (excluding masters and members of the crew of a vessel)
if the injury occurred either upon the navigable waters of the
United States or any adjoining pier, wharf, dry dock, terminal,
building way, marine railway, or other area adjoining such
navigable waters customarily used by an employer in loading,
unloading, repairing, or building a vessel."
S.Rep. 13; H.R.Rep. 10.
[
Footnote 27]
"The intent of the Committee is to permit a uniform compensation
system to apply to employees who would otherwise be covered by this
Act for part of their activity. To take a typical example, cargo,
whether in break bulk or containerized form, is typically unloaded
from the ship and immediately transported to a storage or holding
area on the pier, wharf, or terminal adjoining navigable waters.
The employees who perform this work would be covered under the bill
for injuries sustained by them over the navigable waters or on the
adjoining land area. The Committee does not intend to cover
employees who are not engaged in loading, unloading, repairing, or
building a vessel, just because they are injured in an area
adjoining navigable waters used for such activity. Thus, employees
whose responsibility is only to pick up stored cargo for further
trans-shipment would not be covered, nor would purely clerical
employees whose jobs do not require them to participate in the
loading or unloading of cargo. However, checkers, for example, who
are directly involved in the loading or unloading functions are
covered by the new amendment. Likewise the 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. 13; H.R.Rep. 10-11.
[
Footnote 28]
That the example is not exhaustive is clear. Some types of
cargo, for example, are never brought to a "holding or storage
area," but are placed directly on a truck or railroad car for
immediate inland movement.
See Brief for Petitioner in No.
76-454, p. 38 n. 46; Tr. of Oral Arg. 44. And, while all would
agree that persons bringing such cargo directly from a ship to a
truck are engaged in maritime employment,
see infra at
432 U. S.
274-275, the example does not mention such activity. In
addition, while it is incontrovertible that workers engaged in the
process of loading a ship and performing steps analogous to those
mentioned in the example -- that is, moving cargo from storage and
placing it immediately on the ship -- are covered, the fact is that
the example also does not mention these steps.
See also
discussion,
n 38,
infra.
[
Footnote 29]
Accord, Pittston Stevedoring Corp. v. Dellaventura, 544
F.2d at 54;
Jacksonville Shipyards, Inc. v. Perdue, 539
F.2d at 540. The First Circuit in fact accused Congress of
"seemingly [going] out of its way to avoid taking any express
stance on the status of those engaged in stuffing and stripping
containers as part of the loading and unloading process just as it
is silent on the status of other terminal employees engaged in
moving, storing and culling cargo on the pier."
Stockman v. John T. Clark & Son of Boston, Inc.,
539 F.2d at 274.
[
Footnote 30]
We find consideration of the purposes more enlightening than
looking simply at whether respondents belong to the International
Longshoremen's Association.
See Brief for ILA as
Amicus Curiae 15. We cannot assume that Congress intended
to make union membership the decisive factor. The vagaries of union
jurisdiction are unrelated to the purposes of the Act.
Pittston
Stevedoring Corp., supra at 52;
Stockman, supra at
272;
Jacksonville Shipyards, Inc., supra at 543-544;
but cf. Weyerhaeuser Co. v. Gilmore, 528 F.2d at 962.
The private respondents suggest, Brief for Respondents Caputo
et al. 19-21, that Congress intended to use the
definitions found in the Bi-State Compact between New York and New
Jersey that created the Bi-State Waterfront Commission, and was
approved by Congress, 67 Stat. 541. The definitions may be found in
N.Y.Unconsol.Laws §§ 9806, 9905 (McKinney 1974). Section 9806
provides, in relevant part:
"'Pier' shall include any wharf, pier, dock or quay."
"'Other waterfront terminal' shall include any warehouse, depot
or other terminal (other than a pier) which is located within one
thousand yards of any pier in the port of New York district and
which is used for waterborne freight in whole or substantial
part."
"
* * * *"
"'Longshoreman' shall mean a natural person, other than a hiring
agent, who is employed for work at a pier or other waterfront
terminal, either by a carrier of freight by water or by a
stevedore"
"(a) physically to move waterborne freight on vessels berthed at
piers, on piers or at other waterfront terminals, or"
"(b) to engage in direct and immediate checking of any such
freight or of the custodial accounting therefor or in the recording
or tabulation of the hours worked at piers or other waterfront
terminals by natural persons employed by carriers of freight by
water or stevedores, or"
"(c) to supervise directly and immediately others who are
employed as in subdivision(a) of this definition."
Section 9905 provides supplementary definitions:
"(6) 'Longshoreman' shall also include a natural person, other
than a hiring agent, who is employed for work at a pier or other
waterfront terminal"
"(a) either by a carrier of freight by water or by a stevedore
physically to perform labor or services incidental to the movement
of waterborne freight on vessels berthed at piers, on piers or at
other waterfront terminals, including, but not limited to, cargo
repairmen, coopers, general maintenance men, mechanical and
miscellaneous workers, horse and cattle fitters, grain ceilers and
marine carpenters, or"
"(b) by any person physically to move waterborne freight to or
from a barge, lighter or railroad car for transfer to or from a
vessel of a carrier of freight by water which is, shall be, or
shall have been berthed at the same pier or other waterfront
terminal, or"
"(c) by any person to perform labor or services involving, or
incidental to, the movement of freight at a waterfront terminal as
defined in subdivision (10) of this section."
"
* * * *"
"(10) 'Other waterfront terminal' shall also include any
warehouse, depot or other terminal (other than a pier), whether
enclosed or open, which is located in a marine terminal in the port
of New York district and any part of which is used by any person to
perform labor or services involving, or incidental to, the movement
of waterborne freight or freight."
"As used in this section, 'marine terminal' means an area which
includes piers, which is used primarily for the moving,
warehousing, distributing or packing of waterborne freight or
freight to or from such piers, and which, inclusive of such piers,
is under common ownership or control."
While we find these definitions useful indicators of the
terminology used by the industry, we agree with the court below
that to assume, absent any indication in the legislative history,
that Congress in 1972 had in mind this action of the 1953 Congress
is "to attribute a degree of acumen few Congressmen would claim."
544 F.2d at 50.
[
Footnote 31]
"[T]he greatest economies promised by containerization are found
in the efficiency of using a specially fitted all-container ship. A
most important part of the costs of running a vessel is the dead
time in port while loading and unloading. A ship in port earns no
income, and its heavy fixed costs continue. Moreover, the fast
turnaround time of container ships -- a container ship can unload
and reload in 36-48 hours, compared to the seven or eight days
required for conventional ships -- substantially cuts the number of
ships needed to handle any given volume of cargo. . . ."
"Labor productivity is astonishingly increased by
containerization. One major shipping company reported that each of
its work gangs on a conventional ship produced an average of 15
tons per hour compared with 300 tons an hour worked by one gang at
a container ship hatch. More generally, the industry considers
that"
"it would take 126 men 84 hours each, or a total of 10,584
man-hours, to discharge and load about 11,000 tons of cargo aboard
a conventional ship. The same amount of cargo on a container vessel
can be handled by 42 men working 13 hours each, or a total of 546
man hours."
Ross, Waterfront Labor Response to Technological Change: A Tale
of Two Unions, 21 Labor L.J. 397, 399-400 (1970).
See
Goldberg, Containerization as a Force for Change on the Waterfront,
91 Monthly Labor Rev. 8, 9 (1968).
[
Footnote 32]
Accord, Pittston Stevedoring Corp., 544 F.2d at 53;
I.T.O. Corp. of Baltimore, 542 F.2d at 905;
Stockman, 539 F.2d at 275-277. As one commentator
observed:
"The work of the longshoreman, the loading and unloading of
cargo, remains the same; only the procedure and the place of
performance [have] changed. It seems unlikely that Congress would
acknowledge that longshoring today involves more shore-based
activity than formerly and then extend coverage only to those
longshoremen working closest to the ship."
Comment, Maritime Law -- LHWCA Recovery Denied Longshoremen
Injured Landward of the "Point of Rest," 10 Suffolk U.L.Rev. 1179,
1188 (1976).
[
Footnote 33]
We find no significance in the fact that the container Blundo
was stripping had been taken off a vessel at another pier and then
moved to the site of the injury. Until the container was stripped,
the unloading process was clearly incomplete. The only geographical
concern Congress exhibited was that the operation take place at a
covered situs.
See 432 U. S.
infra. It was precisely Congress' intent to accommodate
the mobility of containers and the ability to transport and strip
them at locations removed from the ship.
[
Footnote 34]
While the Director identifies this as the BRB's position as well
as his own, Brief for Federal Respondent 20, it appears to us that
the BRB has gone further than this position suggest. For example,
the BRB found that a clerk, who worked in an office processing the
paperwork for the delivery of cargo to truckmen for removal from
the terminal, was a covered "employee." It reasoned that this
function, although clerical in nature, was "essential to the
removal of cargo from the terminal and was an integral part of
longshoring operations."
Farrell v. Maher Terminals, Inc.,
3 BRBS 42, 45 (1975). Contrary to the view expressed by the
Director, the BRB showed no concern with the fact that the employee
did not handle cargo. Citing the Committee Reports,
see
n 27,
supra, the
Third Circuit has rejected this conclusion and granted a petition
for review.
Maher Terminals, In. v. Farrell, 548 F.2d 476,
478 (1977)
Regardless of whether the view advanced by the Director is the
position of the BRB, we agree with Judge Friendly that it would be
useful for the BRB to engage in an extensive study of the structure
of work on the various piers of the country. While the record
before us contains sufficient information to enable us to decide
the present cases, such a study will be helpful for future
cases.
[
Footnote 35]
Lighters and barges are part of the modern technological
advancements to which Congress referred when it mentioned
"LASH-type vessels." The term LASH is an acronym for "lighter
aboard ship." The National Association of Stevedores (NAS)
describes the system as follows:
"[C]argo is placed in special uniform size 'lighters,' or
barges, which are called LASH barges to differentiate them from
river barges. The LASH barges are towed from the loading port to
the location of the LASH vessel, which is sometimes called the
mother ship. The barges are mechanically loaded by a crane on the
mother ship, and are stacked in specially constructed holds in the
mother ship. The actual stowage or unstowage of the barges with
their contents in the mother ship requires substantially fewer
longshoremen than does the loading of cargo into a breakbulk type
ship. A very similar type of operation called SEABEE differs from
the LASH operation described only in the size of the barge and the
mechanical means for loading or unloading the barge onto or from
the mother SEABEE ship."
"The actual loading of the barges is performed by longshoremen
in precisely the same manner traditionally employed in the loading
or unloading of a breakbulk ship. However, in most instances, the
size of the longshore gang involved in LASH and SEABEE operations
is smaller than the regular ship's gang, primarily because of the
smaller size of the barge. The barges are, in fact, vessels, and
ply the navigable waters of the United States and may be loaded or
unloaded at any inland or coastal waterfront facility."
Brief for NAS as
Amicus Curiae 27-28.
[
Footnote 36]
The NAS specifically agrees:
"Workers who actually load or unload the barges are engaged in
traditional longshore operations, and, if injured while so engaged,
would obviously be entitled to the benefits of the LHWCA unless
their employer were a state, municipal or other public political
entity."
Id. at 28.
[
Footnote 37]
Petitioner Northeast also argues that the particular cargo
Caputo was handling at the moment of injury was no longer in
"maritime commerce" because it had been at least five days since it
had been taken off a ship.
See the Administrative Law
Judge's decision in App. to Pet. for Cert. in No. 76-444, p. 52a.
But the consignee's delay in picking up the cargo has no effect on
the character of the work required to effectuate the transfer of
the cargo to the consignee. The work performed by the longshoreman
is the same whether performed the day the cargo arrives in port or
weeks later.
In addition, we reiterate that Caputo did not fall within the
excluded category of employees "whose responsibility is only to
pick up stored cargo for further trans-shipment." S.Rep. 13;
H.R.Rep. 11. As we indicated
supra at
432 U. S.
266-267, that exclusion pertains to workers, such as the
consignees' truck drivers Caputo was helping, whose presence at the
pier or terminal is for the purpose of picking up cargo for further
shipment by land transportation.
[
Footnote 38]
Moreover, we are not convinced that the point-of-rest theory
provides the workable definition that petitioners claim for it. The
"point" varies from port to port and with different types of cargo.
See the Stevedore and Marine Terminal Industry of the
United States (unpublished survey by the NAS) (1971975); n. 28,
supra. The point can be moved seaward or landward at the
whim of the employer. Such characteristics make it inconsistent
with the uniform system Congress sought to design. As Judge Craven
observed, when a panel of the Fourth Circuit adopted the
point-of-rest theory and refused to cover persons holding jobs
similar to Caputo's and Blundo's:
"[Respondents] will, I think, be surprised to learn that they
are not longshoremen, and astonished to discover that they are not
engaged in maritime employment of any kind. If they are not, as my
brothers hold, then the Congress has labored prodigiously only to
have accomplished nothing at all in its effort to simplify the
problems of maritime workers' compensation. . . . Henceforth,
injured employees and their counsel must comb the waterfronts of
this circuit, probing hopelessly, like Diogenes with his lantern,
for that elusive 'point of rest' upon which coverage depends."
I.T.O. Corp. of Baltimore v. BRB, 529 F.2d 1080, 1089
(1975) (dissenting opinion),
modified en banc, 542 F.2d
903 (1976).
[
Footnote 39]
Petitioners also contend that it is too expensive to extend
coverage beyond the point of rest, and that Congress did not intend
to impose such expenses on the employers. Brief for Petitioner in
No. 76-454, pp. 68-73. However, there is nothing in the legislative
history to indicate what Congress anticipated the expanded coverage
would cost.
[
Footnote 40]
The Court of Appeals for the Second Circuit, in the case below,
rejected the point-of-rest theory and awarded compensation to
Blundo and Caputo for reasons similar to those upon which we rely.
Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35
(1976). The First Circuit, as noted in
n 29,
supra, has also found the point-of-rest
theory incompatible with Congress' desire for uniformity. Also
relying on factors similar to those we consider, the court
concluded that the operations of stuffing and stripping containers
were clearly longshoring operations and affirmed a compensation
award to one so engaged.
Stockman, 539 F.2d at
272-277.
The Third Circuit has extended coverage well beyond the point of
rest.
Sea-Land Service, Inc. v. Director, Office of Workers'
Compensation, 540 F.2d 629 (1976). Its analysis has differed
from the other Circuits. It concluded that Congress meant to
exercise its full constitutional authority, and to
"afford federal coverage to all those employees engaged in
handling cargo after it has been delivered from another mode of
transportation for the purpose of loading it aboard a vessel, and
to all those employees engaged in discharging cargo from a vessel
up to the time it has been delivered to a place where the next mode
of transportation will pick it up."
Id. at 638. The Circuit appears to have essentially
discarded the situs test, holding that only "[an] employment nexus
(status) with maritime activity is [necessary]," and that the situs
of the maritime employee at the time of injury is irrelevant.
Ibid. See also Sea-Land Service, Inc. v. Director,
Office of Workers' Compensation Programs, 552 F.2d 985 (CA3
1977);
Maher Terminals, Inc. v. Farrell, 548 F.2d 476 (CA3
1977)
The Fifth Circuit also has rejected the point-of-rest theory,
calling it a "hypertechnical construction."
Jacksonville
Shipyards, Inc. v. Perdue, 539 F.2d at 540. It affirmed
compensation awards to a worker securing a vehicle to a railway car
in preparation for its transportation inland and to a worker
unloading bales of cotton from a wagon and stacking them in the
warehouse to await future placement on a ship. The awards were
affirmed because both people were involved in "an integral part of
the ongoing process of moving cargo between land transportation and
a ship."
Id. at 543-544.
The Fourth Circuit is the one Circuit that has considered the
theory and not rejected it.
I.T.O. Corp. of Baltimore v.
BRB, 542 F.2d 903 (1976) (en banc). But it has also not
accepted it. While three of six judges sitting en banc accepted the
theory, the fourth held that the Act covered certain cargo handling
within the terminal shoreside of the point of rest. He found
coverage for two workers situated similarly to Blundo,
characterizing their activities as part of the overall loading and
unloading function.
Id. at 905. He denied coverage to a
worker in the same situation as Caputo. The other two judges of the
en banc court would have covered all three workers, since they were
engaged in "handl[ing] ships' cargo."
I.T.O. Corp. of Baltimore
v. BRB, 529 F.2d at 1097 (Craven, J., dissenting).
[
Footnote 41]
Only one of the commentators discussing the Act prior to the
early cases even thought of the point of rest as a line of
demarcation, but he makes no effort to explain why the term was
never mentioned in the Act or history. Vickery, Some Impacts of the
1972 Amendments to the Longshoremen's and Harbor Workers'
Compensation Act, 41 Ins.Counsel J. 63 (1974). Gilmore §§ 6-51, p.
427; Gorman, The Longshoremen's and Harbor Workers' Compensation
Act -- After the 1972 Amendments, 6 J.Mar.L. & Com. 1, 9-10
(1974); Note, The 1972 Amendments to Section 903 of the
Longshoremen's and Harbor Workers' Act, 4 Rutgers Camden L.J. 404
(1973); Note, Maritime Jurisdiction and Longshoremen's Remedies,
1973 Wash.U.L.Q. 649; Note, Broadened Coverage Under the LHWCA, 33
La.L.Rev. 683 (1973).
Those writing after the theory had been advanced in the courts
have universally found it inadequate. 4 A. Larson,
supra,
n 15, § 89.42; Note,
Shoreside Coverage Under the Longshoremen's and Harbor Workers'
Compensation Act, 18 B.C.Ind. & Com.L.Rev. 135 (1976); Comment,
Maritime Law -- LHWCA Recovery Denied Longshoremen Injured Landward
of "Point of Rest," 10 Suffolk U.L.Rev. 1179 (1976); Note,
Admiralty Law/Workmen's Compensation -- On the Waterfront, 54
N.C.L.Rev. 925 (1976); Comment, The Longshoremen's and Harbor
Workers' Compensation Act: Coverage After the 1972 Amendments, 55
Texas L.Rev. 99, 116-120 (1976).
[
Footnote 42]
Petitioner ITO contends that statements in the Committee Reports
indicate that the "customarily used" requirement is to apply to all
the specified areas. It points to the Reports' intent to exclude
persons not engaged in loading, unloading, repairing or building a
vessel "just because they are injured in an area adjoining
navigable waters used for such activity," S.Rep. 13; H.R.Rep. 11,
and the Senate Report's description of the bill as "expand[ing] the
coverage of this Act to cover injuries occurring in the contiguous
dock area related to longshore and ship repair work." S.Rep. 2.
These statements, however, serve to undermine, rather than to help,
ITO's attempt to read the situs requirement to exclude the pier on
which Blundo was working. Even assuming they suggest a usage
requirement for all such adjoining piers, it is clear that the
usage is broad enough to encompass stripping and stuffing
containers, integral parts of the overall loading and unloading
process.