Director, Owcp v. Perini North River Assocs., 459 U.S. 297 (1983)

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Author: Justice Rehnquist

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Director, Owcp v. Perini North River Assocs., 459 U.S. 297 (1983)

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.

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(d) workers in the District of Columbia, Act of May 17, 1928, ch. 612, 45 Stat. 600, repealed by Act of July 1, 1980, D.C. Law 3-77, § 3, see D.C.Code § 36-301 (1981); and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.

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 (1756) ("[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").

3. Seamen are protected under the Jones Act. See 46 U.S.C. § 688.

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).

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:

(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).

§§ 902(3), (4) (1970 ed.). As amended in 1972, the definitions read:

(3) The term "employee" means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.

(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 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).

Second, the Amendments modified the section defining covered injuries, 33 U.S.C. § 903(a). Before the Amendments, it read:

Compensation shall be payable under this Act 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, or 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.

§ 903(a) (1970 ed.). As amended in 1972, the section reads:

Compensation shall be payable under this Act 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). No compensation shall be payable in respect of the disability or death of --

(1) 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; 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.

86 Stat. 1251, Longshoremen’s and Harbor Workers’ Compensation Act Amendments of 1972.

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. Seen. 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.

7. Seen. 1, supra.

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.

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).

10. The Minority Counsel, Eugene Mittelman, had the following exchange with a representative of the AFL-CIO:

Mr. MITTELMAN. My last question concerns the fact that the longshoreman [sic] applies only when the man is over the navigable waters of the United States, and, under whole series of court decisions, there has been established a line where the provisions of the Longshore Act apply when the man is over the water, and yet the provisions of the State workmen’s compensation law applies if the man is injured on land.

* * * *

Do you have any position on this, concerning whether the Federal law should be extended, really, so that a uniform system of benefits is applicable to longshoremen, regardless of which side of the waterline the injury occurred on?

Mr. McGUIGAN. The first position we would have is that obviously there would be no incentive to cover him under the act until we know the act gives him benefits superior to the State workmen’s compensation laws.

Mr. MITTELMAN. I appreciate that. But assuming we would amend the act to provide a reasonable schedule of benefits as proposed in this bill, would you favor the principle of extending of the Longshore Act to cover all longshore workers whether performed on land or over water?

* * * *

Mr. O’BRIEN. . . . [I]f the act were amended to take up its former place of prominence in the field of workmen’s compensation, we would certainly like to see the coverage of the act extended.

Hearings on S. 2318 et al. before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 92d Cong., 2d Sess., 73-74 (1972).

11. The language of the Committee Reports shows how clearly Congress understood who was to be covered:

The present Act, insofar as longshoremen and ship builders and ship repairmen are concerned, covers only injuries which occur "upon the navigable waters of the United States." Thus, coverage of the present Act stops at the water’s edge; 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.

* * * *

The Committee believes that the compensation payable to a longshoreman or a ship repairman or a 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.

H.R.Rep. No. 92-1441, at 10; S.Rep. No. 92-1125, at 12-13.

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.

13. The Court reasoned:

The work of a stevedore in which the deceased was engaging is maritime in its nature; his employment was a maritime contract; the injuries which he received were likewise maritime; and the rights and liabilities of the parties in connection therewith were matters clearly within the admiralty jurisdiction.

If New York can subject foreign ships coming into her ports to such obligations as those imposed by her Compensation Statute, other States may do likewise. The necessary consequence would be destruction of the very uniformity in respect to maritime matters which the Constitution was designed to establish, and freedom of navigation between the States and with foreign countries would be seriously hampered and impeded.

244 U.S. at 217 (citation omitted).

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).

15. In explaining why the holding in Rohde was consistent with Jensen and subsequent cases, the Court stated:

In each of them, the employment or contract was maritime in nature, and the rights and liabilities of the parties were prescribed by general rules of maritime law essential to its proper harmony and uniformity. Here, the parties contracted with reference to the state statute; their rights and liabilities had no direct relation to navigation, and the application of the local law cannot materially affect any rules of the sea whose uniformity is essential.

257 U.S. at 477.

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.

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.

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).

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.

20. In 1942, this Court observed:

The horns of the jurisdictional dilemma press as sharply on employers as on employees. In the face of the cases referred to above, the most competent counsel may be unable to predict on which side of the line particular employment will fall. The employer’s contribution to a state insurance fund may therefore wholly fail to protect him against the liabilities for which it was specifically planned. If this very case is affirmed, for example, the employer will not only lose the benefit of the state insurance to which he has been compelled to contribute, and by which he has thought himself secured against loss for accidents to his employees; he must also, by virtue of the conclusion that the employee was subject to the federal act at the time of the accident, become liable for substantial additional payments. He will also be subject to fine and imprisonment for the misdemeanor of having failed, as is apparently the case, to secure payment for the employee under the federal act. 33 U.S.C. §§ 938, 932.

Davis, 317 U.S. at 255. On that point, the dissenter was in complete agreement. See id. at 262 (Stone, C.J., dissenting).

21. See supra at 332-334

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 Resource, 97th Cong., 1st Sess., 924-936 (1981).

23. The "status" provision replaced the "unless recovery may validly be provided by state law" language that was being construed in Parker and Calbeck.

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. Seen. 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.

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.

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:

Before 1972 . . . 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. . . ."

Ante at 311.

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.

Ante at 315. "Congress . . . assumed that injuries occurring on the actual navigable waters were covered, and would remain covered." Ante at 319. On the other hand, it concludes:

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. . . . 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. . . .

Ante at 324, n. 34.

Similarly, at one point, the Court says

[Congress’] use of "employees traditionally covered" was intended to refer to those employees included in the scope of coverage under Parker, Davis, and Calbeck,

anteat 319-320, but at another point, it concedes that those very cases were read "not to limit LHWCA coverage only to "traditional" maritime activities," ante at 312, n. 21.

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.

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Chicago: Rehnquist, "Rehnquist, J., Concurring," Director, Owcp v. Perini North River Assocs., 459 U.S. 297 (1983) in 459 U.S. 297 Original Sources, accessed April 26, 2018, http://www.originalsources.com/Document.aspx?DocID=DAQ1S5F131JIANH.

MLA: Rehnquist. "Rehnquist, J., Concurring." Director, Owcp v. Perini North River Assocs., 459 U.S. 297 (1983), in 459 U.S. 297, Original Sources. 26 Apr. 2018. www.originalsources.com/Document.aspx?DocID=DAQ1S5F131JIANH.

Harvard: Rehnquist, 'Rehnquist, J., Concurring' in Director, Owcp v. Perini North River Assocs., 459 U.S. 297 (1983). cited in 1983, 459 U.S. 297. Original Sources, retrieved 26 April 2018, from http://www.originalsources.com/Document.aspx?DocID=DAQ1S5F131JIANH.