Nacirema Operating Company, Inc. v. Johnson

PETITIONER:Nacirema Operating Co. Inc. and Liberty Mutual Insurance Company
RESPONDENT:William H. Johnson, Julia T. Kloseck, and Albert Avery
LOCATION:Bethlehem Steel Corp. High Pier

DOCKET NO.: 9
DECIDED BY: Burger Court (1969-1970)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 396 US 212 (1969)
ARGUED: Mar 25, 1969 / Oct 20, 1696
REARGUED: Oct 20, 1969
DECIDED: Dec 09, 1969

ADVOCATES:
Erwin N. Griswold – Solicitor General argued the case for the petitioners in No. 16
John J. O’Connor, Jr. – For the Respondents Johnson et al.
Randall C. Coleman – For the Petitioners in No. 9
Ralph Rabinowitz – For the Respondent Avery

Facts of the case

These are two consolidated cases involving the same Respondents. William Johnson and Jonathan Klosek (husband of Julia Klosek) were employed by Nacirema Operating Company as longshoremen and Albert Avery was employed by Old Dominion Stevedoring Company. Johnson and Avery were injured and Klosek was killed during separate accidents that occurred while on the dock unloading a ship. The Deputy Commissioners of the United States Department of Labor denied claims by the men and their families under the Longshoremen’s and Harbor Worker’s Compensation Act (the Act) because the injuries did not occur “upon the navigable waters of the United States” as required under the Act. The district court upheld those decisions and the U.S. Court of Appeals for the Fourth Circuit reversed.

Question

Are injuries to longshoremen that occur on piers permanently affixed to shore compensable under the Longshoremen’s and Harbor Workers’ Compensation Act?

Earl Warren:

Number 528, Nacirema Operating Company Inc., petitioners versus William H. Johnson et al case.

Yes, and number 663, John P. Traynor and Jerry C. Oosting, Deputy Commissioners, petitioners versus William H. Johnson.

Mr. Coleman?

Randall C. Coleman:

Mr. Chief Justice, may it please the Court.

The issues before the Court today are whether pier injuries to longshoreman are injuries which occurred on navigable waters of the United States and are thus within the coverage of the Longshoreman’s Act.

That question was answered in the affirmative by the Court of Appeals for the Fourth Circuit, and therefore as one of the reasons that the Fourth Circuit decided the case affirmatively was that the Admiralty Extension Act broadened and expanded the coverage of the Longshoreman’s Act.

The Court will also have before it the Admiralty Extension Act and whether or not it did in fact extend the coverage to the Longshoreman’s Act.

The facts in the case are undisputed and I will give them, Your Honors together with the history of the case.

These consolidated cases arose from pier injuries to three longshoremen.

One of the injuries resulted in the death of the longshoreman.

The cases arose, two of them, William Johnson and Joseph Klosek arose in Maryland and one Albert Avery arose in Virginia.

They were pier injuries under virtually identical circumstances because all three of the longshoremen involved were, what is known as slingers.

They worked and were working at the time of the injuries in gondola cars on piers.

They were slinging on cargo which was attached to ships’ falls or cables which then loaded the cargo which was being slung on to the vessel.

The piers in the — well the pier in the Maryland case was on the Patapsco River.

It extended out into that river approximately 600 feet, I believe, and there’s no question that the Patapsco River is navigable waters of the United States.

The pier in the Virginia case, city piers of north of Virginia extended I think about a thousand feet into the Elizabeth River.

There’s also no dispute that the Elizabeth River is on navigable waters of the United States.

It was found as a fact and not disputed that these longshoremen in both cases might have been working on the pier at one time.

They might also have gone aboard the vessel.

They sometimes switched positions.

It is also found as a fact and undisputed that these particular piers were piers which were erected on pilings.

And certain small craft could get under them, and I think canoes and rowboats were named. Large vessels could not because the piers instructed them.

The Deputy Commissioner Oosting in Virginia and Deputy Commissioner Traynor in Maryland both found that the injuries to these men which resulted when cargo swung against the men, in the case of Joseph Klosek, he was knocked out off the gondola car to the dock and sustained fatal injuries.

The other two men Johnson and Avery were pinned against the side of the railroad car.

The Deputy Commissioner found that those injuries, both Deputy Commissioners, found that those injuries were injuries which did not occur upon navigable waters.

The opinions of both the Deputy Commissioners were then appealed to the district courts first to the Eastern District of Virginia and to the District Court for the District of Maryland.

And the district judges, Judge Hoffman from the Eastern District of Virginia, Judge Watkins from the District of Maryland affirmed the findings of the Deputy Commissioner.

The cases were then appealed to the Court of Appeals for the Fourth Circuit.

They were first, the Avery case and the Johnson and Klosek cases were first argued in separate panels, and after that they were consolidated and the Court of Appeals for the Fourth Circuit en banc heard all three cases.

Randall C. Coleman:

They reversed the two district judges.

Certiorari was applied for by the Nacirema Operating Company in the Maryland case by Liberty Mutual Insurance Company in the Virginia case, and by Solicitor General on behalf of the two Deputy Commissioners and with us before the Court.

The principal point upon which I rely is that for some years, the piers have been considered extensions of the land.

I believe that was the law some time ago and is presently the law.

The point was never mentioned by the Court of Appeals below and I think the Court of Appeals might have had somewhat difficult time answering the question.

A number of cases from this Court were cited, they were on page 10 of our briefs.

The most recent that I can think of, of this Court is the opinion announced by Mr. Justice Black in Swanson against Marra Brothers which I think is certainly still the law, it certainly the most well known case.

I will only quote that portion of the opinion which relates to this point.

“Swanson was a longshoreman who was injured on the pier when a life raft fell from the ship and injured him.”

And this Court said without dissent, but since the Act, that’s the Longshoreman’s Act, is restricted to compensation for injuries occurring on navigable waters, it excludes from its own terms and from the Jones Act, any remedies against the employer for injuries inflicted on shore.

The Act leaves the injured employees in such cases to pursue the remedies afforded by local law.

The Court then and prior to that had always considered pier injuries to be shore injuries, and I submit Your Honors that that is still the law.

The Court, this Court has always followed I believe, the line of demarcation which was set out in the Jensen case years ago, and that line is the line between state and federal coverage.

And specifically it’s the line between navigable waters and land, or extensions of the land.

I think that has always been the law.

So far as I know, there has never been a decision, except that of the Fourth Circuit which disputes that pier injuries are considered as land injuries.

The injuries in this instance, all having occurred on the pier don’t fall within the stated exception of the Act, which is any dry dock.

Dry docks were explained and detailed as to what they were by Mr. Justice Douglas in Avondale Marine Ways against Henderson I think.

And it was clearly pointed out that the types of dry dock referred to are not wharfs or piers, as they were in this instance.

The case does not — the injuries do not fall within the Court’s exception which was in Mr. Justice Black’s decision in Davis against the Department of Labor in the twilight zone.

The twilight zone as I understand it is that sort of hazy area between the ship and the pier where it’s difficult to determine which coverage does apply.

And the Court in the twilight zone cases has held that there may be both state and federal coverage and the injured longshoreman may elect.

The case most heavily relied upon by the court below was Calbeck against Travelers Insurance Company.

I hope since it was discussed at some length that this Court won’t consider it presumptions of me, in particularly Mr. Justice Brennan to try to state what I think that case held.

I do not think that the case held as the Court of Appeals below said it held that pier injuries could be covered by the Longshoreman’s Act.

That was a case Your Honors will recall which involved two or more shipyard workers who were injured aboard ships which were on navigable waters under new construction.

They were ships under construction.

Now the Court had before it, its prior holding in 1922 of Grant Smith-Porter Ship Company against Rohde, and that case long ago had established that there was a local concern in navigable — in ships that were under construction in navigable waters.

And where there were such local concern that the State Compensation Acts could apply that there and in that instance the state acts may apply and federal coverage did not come into effect.

Now, I gathered from Mr. Justice Brennan’s opinion that this Court was very much concerned with whether or not in all the cases where there was local concern, and particularly in the very case it was before it there would definitely be coverage for longshoremen who were injured.

Randall C. Coleman:

There was the fear, I got from the opinion there was the fear that there might not be state or federal coverage somewhere for those men who were working in areas that the pre-1927 decisions had set aside as local concern areas.

So the court in reversing the Fifth Circuit, I believe it was the Fifth Circuit, in reversing the Fifth Circuit held that what this Act meant was precisely what it said.

It wanted to cover injuries which occurred to longshoreman on navigable waters.

It didn’t mean all injuries.

It meant injuries on navigable waters.

There was no dispute that there is no dispute.

There can be no dispute that ships under construction just as much as ships that have been built are on navigable waters if they are afloat or in a dry dock or a marine railway.

Abe Fortas:

Well, on of these men was knocked off the pier into the water, was he?

Randall C. Coleman:

No sir, not —

Abe Fortas:

No?

Randall C. Coleman:

Your Honor that was a case that was not brought up on certiorari.

Abe Fortas:

I see.

Randall C. Coleman:

There were two men in Norfolk, I can’t recall the other man’s name, but you’re quite right.

Abe Fortas:

Well, —

Randall C. Coleman:

One was knocked off.

Abe Fortas:

Well would that make any difference?

Randall C. Coleman:

Your Honor, to me it makes a difference in that — well, I felt too that that man was injured on navigable waters.

I think this is totally situs-oriented and that a man who sustains his injury in the ocean, or in the river, in the water is clearly on navigable waters.

Abe Fortas:

Well that gets it down to pretty — to a point that does of the greatest appeal to legal technicians, doesn’t it?

Randall C. Coleman:

I suppose.

I suppose whenever you draw a line, it’s a difficult line to draw, yes sir.

Abe Fortas:

Well, here’s a man on a pier — there are two men working on the pier and now this is a crane, isn’t it or a line swing that’s attached to the ship?

Randall C. Coleman:

This — well let’s see.

In each instance particularly — well I know in the Maryland case, there was a derrick or crane on a ship and from that derrick or crane, the line descended to the gondola car and hoisted the steel beams, that was the same was true —

Abe Fortas:

So here — there’s a ship here and there’s a crane on it, a line coming from the crane, two men working on the pier in my hypothetical situation.

Randall C. Coleman:

Yes, sir.

Abe Fortas:

And they’re both hit.

One of them was just knocked to the floor, to the floor of the pier and he sustains injuries, he’s not covered.

His fellow worker is knocked off the pier and into the water and that being navigable water, he is covered, is that about it?

Randall C. Coleman:

That’s exactly it, Your Honor.

Randall C. Coleman:

I know — I recognize — I can’t dispute that incongruities are going to develop wherever line is drawn.

Potter Stewart:

Didn’t the Deputy Commissioner make an award in that case with that?

Randall C. Coleman:

Oh yes.

Potter Stewart:

That’s what I thought.

He made that precise distinction?

Randall C. Coleman:

Yes.

Potter Stewart:

And that precise distinction is made by the cases isn’t it?

Randall C. Coleman:

Yes, sir.

Thurgood Marshall:

Mr. Coleman, suppose a man is —

Randall C. Coleman:

No wait.

I’m not sure the Deputy Commissioner did Your Honor.

I know the Court of Appeals held —

Potter Stewart:

Well I thought I read the briefs the Deputy Commissioner had unlike these other cases?

Randall C. Coleman:

I believe the Deputy — that’s right, it did uphold the award in that case.

I haven’t born that one as closely that —

Potter Stewart:

No, because that’s not before us, but I thought I read in the briefs —

Randall C. Coleman:

I believe —

Potter Stewart:

— or a footnote somewhere that the Deputy Commissioner had made that precise distinction?

Randall C. Coleman:

Yes, sir.

Potter Stewart:

For the man knocked into the water and drowned —

Thurgood Marshall:

What happens if the longshoreman is on the ship deck it did not into the pier?

Randall C. Coleman:

The injury occurred on the ship Your Honor.

That case was covered by this Court, the Admiral Peoples is the same idea as the — it happened to be the gangway in that case.

Thurgood Marshall:

And that was it, that’s why I can’t see the difference when he’s on the pier and gets knocked into water.

Randall C. Coleman:

Your Honor, again you’re hitting me right where that line is drawn and it’s tough.

Thurgood Marshall:

But you can’t give the line up, obviously?

Randall C. Coleman:

Sir?

Thurgood Marshall:

You can’t do you?

Randall C. Coleman:

No sir, I can’t give the line up.

But all that the Court of Appeals has done below is it just redrawn the line.

Randall C. Coleman:

It’s just a question of where you are going to draw it.

Wherever its drawn, somebody on the other side of it whose agreed is going to be nudging and say “I ought to be on that side of it.”

And I think that this is a clearly established line.

I honestly think it’s a logical line to draw that is navigable waters.

It was drawn by this Court for constitutional reasons, navigable waters and the land.

Now, there are a number of examples that show what might happen if it were extended further shoreward.

They might sound farfetched, but they’re not farfetched if the Court adopts the status approach that was adopted by the Fourth Circuit, anytime the status approached — approach is adopted, it’s going to be extremely difficult to tell what to do about that line.

But if a clear situs approach is adopted, you know if it happened on navigable waters.

It was covered by this Act.

If it happened on land or extensions of land, it’s covered by the state Act.

The Court in Calbeck went on to point out that the pre-1927 decisions which has been referred to in the respondent’s brief as static decisions where we should not freeze the line, were those very decisions of local concern, so I — and it was brought out in the Calbeck case just as it was brought out in the Parker against Motor Boat Sales before it, that the local concern doctrine was said to have been read out of the Act.

And that it simply means that where there are navigable waters, and the Court used to term navigable waters frequently, where there are navigable waters, that is where the federal Act applies.

The Court also recognized in the Calbeck case the Jensen line of demarcation.

It had recognized it in previous cases.

The Court cited in the Calbeck case, the Fifth Circuit case of DeBardelen which quoted that Congress intended to exercise to the fullest extent its power to act in this area.

The fullest extent was determined by the Court sometime ago to be where there are navigable waters and apart from land or extensions of land which were then the domain of the State Compensation Acts.

Judge Sobeloff in the majority decision below stated that it would have been interesting if the three courts or at least in the Fifth Circuit which decided the case contrary-wise from the Fourth Circuit.

If the Fifth Circuit had considered the impact of the Calbeck decision in reaching the result which was opposite this one, the Fifth Circuit did not in precise terms refer to the Calbeck decision.

It did however refer “to the extensive scholarly opinion of Judge Watkins who had at length discussed the Calbeck case because the Calbeck case had been argued to him.”

And in the Ninth Circuit case, which also held that is Houser against O’Leary, which also held that piers are extensions of the land and that pier ridges are covered by the state Act rather than the federal Act.

There the Calbeck case was discussed at some length.

Byron R. White:

Did you suggest that the admiralty jurisdiction at its maximum extension would not reach an injury on a pier?

Randall C. Coleman:

Now, wait a minute, the Admiralty Extension Act, Your Honor —

Byron R. White:

I understand that.

I understand the admiralty but you — a while ago you said it had been determined that the maximum extension of the admiralty jurisdiction still didn’t reach injury on a pier?

Randall C. Coleman:

No, Your Honor, you misunderstood me.

What I said was that the Longshoreman’s Act does not — no extension of the Longshoreman’s Act will reach a pier injury because that is not on navigable waters.

Byron R. White:

I understand.

Randall C. Coleman:

Now, I — perhaps what you’re asking me Mr. Justice White is do I contend that Congress hasn’t the right in the exercise of its maritime jurisdiction to move all the way into the pier and thus let the Longshoreman’s Act cover that?

I think sir that was the very point that was in Jensen at Knickerbocker and Dawson where they held no and it’s the same Constitution.

Randall C. Coleman:

And it’s —

Byron R. White:

So you do say that admiralty jurisdiction ends with the pier.

Randall C. Coleman:

Not admiralty jurisdiction.

Admiralty jurisdiction goes on land, Your Honor’s decision in Gutierrez by virtue of the —

Byron R. White:

Admiralty —

Randall C. Coleman:

Admiralty Extension Act.

Byron R. White:

But by the —

Randall C. Coleman:

But jurisdiction under this statute is strictly limited to navigable waters by its terms.

Byron R. White:

Then what about the Congress saying that it isn’t, but I suppose it could, is that it?

Randall C. Coleman:

Now that’s where it should be decided.

I think maybe Congress could but it would be faced with this Court saying it couldn’t back in Jensen and Knickerbocker and Dawson.

Hugo L. Black:

You think Jensen is still the law?

Randall C. Coleman:

I beg your pardon sir?

Hugo L. Black:

You think Jensen is still the law?

Randall C. Coleman:

Yes, sir.

It hasn’t been overruled.

I remember Your Honor’s decision in Davis against the Department of Labor when no one there suggested that it would be appropriate to try to overrule Jensen because of the confusion it would create.

Now, I’m mindful of the fact that the Solicitor General suggest that in an appropriate case, it might be a good idea.

But he also points out that this wouldn’t be that case, because this calls for strictly an application of the Longshoreman’s Act.

Byron R. White:

What — what power do you think Congress was exercising in passing the Longshoreman’s Act?

Randall C. Coleman:

It was exercising the power granted it under Article III, I think it is the maritime power in the area where the states may not act.

And that act — and where that maritime jurisdiction extends under the very lengthy discussions in those three cases Jensen, Knickerbocker and Dawson was again navigable waters because the lands were within the exclusive jurisdiction of the state.

Now, I’m not at all sure that that would be followed now.

All I know is that’s what it has been for some time.

The Court wrote fairly convincing opinions.

Byron R. White:

But what was the power of Congress, I suppose in passing the Admiralty Extension Act was the maritime jurisdiction?

Randall C. Coleman:

Well, they merely expanded the admiralty tort jurisdiction, and I’m not sure whether that was commerce or whether it might have been Maritime, I don’t know.

I think it might’ve been commerce but I’m not sure.

But I know that the approach given by the court below which is a status approach certainly contradicts any idea that the Admiralty Extension Act extends — extends the coverage of the Longshoreman’s Act.

I finally point out that the Court in the Calbeck case also quoted extensively Senate Report 973, which was the crux of the legislative history in a footnote and in part it said “injuries occurring in loading or unloading are not covered, unless they occur on the ship or between the wharf and the ship.”

Randall C. Coleman:

That’s what Congress intended and as I understand this Court’s decision in Calbeck and many others, it felt the same way.

And certainly did as recently as Calbeck.

Now, to the Admiralty Extension Act, I believe the reading of the Act itself makes it fairly clear that the court below in finding that the Admiralty Extension Act did extend the coverage of the Longshoreman’s Act was mistaken.

The second part of the Admiralty Extension Act to which very little attention seems to have been paid, and which was not commented upon is that in any such case, suit may be brought in rem or in personam according to the principles of law and the rules of practice obtaining in cases where the injury or damage has been done and consummated on navigable water.

Now one thing that is definite about the Longshoreman’s Act, suit is not brought.

The Longshoreman’s Act is — involves an administrative proceeding where in a claim is filed with an administrative agency.

It can’t be done in rem.

It can’t be done for damages — for damage, it is done for injuries.

And it is strictly and purely an administrative proceeding.

And to argue as is argued below and by respondents that the Admiralty Extension Act expands.

It is completely contradictory to the same argument that the Longshoreman’s Act is status-oriented, because if there’s one thing the Admiralty Extension Act is, it is clearly situs-oriented.

Byron R. White:

And as review of the District Court on the civil-sided court?

Not an admiralty —

Randall C. Coleman:

Review of the Deputy Commissioner’s?

It was in admiralty.

Byron R. White:

It is an admiralty?

Randall C. Coleman:

Right now it’s civil, it’s just called a complaint civil — it was in admiralty, yes sir.

Byron R. White:

Considered an admiralty not a —

Randall C. Coleman:

The appeal was taken up in admiralty, yes sir.

I don’t think it proves anything sir?

Byron R. White:

Well, that’s not your viewpoint.

Randall C. Coleman:

No certainly not.

The — what the Admiralty Extension Act has done and did for these longshoremen, is give them the right to do what they done.

When there’s a pier injury caused, that is the Maryland longshoreman, caused by a vessel and there’s some fault, they have the right to sue the third party, and they’ve exercised that right.

So I think the Admiralty Extension Act applies only to a right which they have exercised and does not expand the rights they have which are considerable under the Longshoreman’s Act.

Unless there’s some further questions.

Thank you, sir.

Earl Warren:

Mr. Solicitor General.

Erwin N. Griswold:

Mr. Chief Justice, and may it please the Court.

The question in this case is solely one of statutory construction.

Erwin N. Griswold:

Though there is of course a constitutional background.

In some ways as Mr. Justice Fortas has indicated, it’s in a sort of never-never land.

But I think that it helps if we focus on the fact that we are dealing with the construction and application of a statute which was passed by Congress in 1927 more than 40 years ago, and has never been amended.

It’s appealing to think that the time has come when the statute here involved should be given a broader sweep as the court below has done.

But it’s an appeal I submit that should be resisted in the interest of proper allocation of governmental powers.

We’ve become accustomed to growing and expanding constructions of the Constitution, and there’s reason for this.

Since constitutions are often written in general terms and they are hard to change.

In the area of statutory construction though, Congress always has the power to amend the statute if it thinks that is desirable.

And in the allocation of powers between the great branches of the Government, it’s the function of Congress to amend statutes and not of the court.

As this Court itself pointed out in the Pillsbury case involving the Longshoreman’s Act some years ago.

We don’t contend that the proper construction of the statutory provision is a matter of black and white, as legal questions rarely are.

But there are elements which we believe point clearly enough to a decision.

The relevant language is in Section 903 of Title 33 and is set out just about the middle of page 3 of the Government’s brief.

Beginning with fourth line of that provision, I would call attention to three elements in the statutory language.

There is first, occurring upon the navigable waters of the United States.

Now, upon is a common word and common words often have many shades of meaning.

This word in this place must take its content in part at least from its background, the most important element of which was the Jensen case.

The dictionary definition of upon is short and sweet.

I looked it up this morning in the second edition of the Webster’s International “upward so as to be on.”

And that makes it turn to on and on as defined as the position of contact with or against a supporting surface.

I don’t think the dictionary definition helps a great deal, but it does make it apparent that here the men were upon the pier and not upon the water.

But in addition to the Jensen case, there was also the Nordenholt case and not to mention the Cleveland Terminal and Valley Railroad case, both of which were well known when the statute was written.

In both of those cases, pier injuries were held to be outside the admiralty jurisdiction.

It said that these piers were above the water, and that indeed small boats and canoes can travel beneath the piers on the water.

But that’s not where the injury occurred.

It occurred on a pier which is a structure fixed in land.

Now when these workmen were on the pier, they were above the water surely, but they were not upon the water they were upon the pier.

Suppose they’ve been on a bridge over the water but resting on the two banks of the navigable stream?

They would then have been above the water, and thus upon the water in the same sense that they were here.

But no one would say that a person on a bridge was upon that water even though ships could pass underneath.

Erwin N. Griswold:

Next, we come to the phrase immediately following (including any dry dock).

Note that this is including any dry dock, not any dock or any dock or pier.

The fact that Congress expressly included any dry dock is some indication that it did not include other docks or piers.

I don’t suggest that the other construction is impossible.

I do submit that it is unlikely and that the construction which would make the applicable — the Act applicable to injuries occurring on any dock or pier is not only unnatural in the light of the situation which Congress understood when it wrote the statute.

But also makes this phrase of little use in the statute.

Such a construction should I think be avoided.

And finally, in these same few lines of the statute, we come to the last clause and if recovery for the disability or death through workman’s compensation proceedings may not validly be provided by state law.

Now it’s said that this last clause was written out of the statute by this Court’s decision in the Calbeck case.

I’m planning to devote the final portion of my available time to a discussion of the Calbeck case, but I will say now that I don’t think the statement I have just recounted is true.

Writing provisions out of the statute is not the function of the Court.

And I don’t interpret the Calbeck decision as attempting to do so. On the contrary, the present case is I submit an excellent example of a situation where this final clause is applicable and is dispositive of the question of construction and of the litigation.

Turning specifically to the question of construction, I’ve already referred to the language of the statute but the argument is confirmed by the legislative history.

The statute including this jurisdictional language was of course passed following the Jensen decision and the two cases where the Court struck down the first two attempts of Congress to deal with the problem.

Not only was the Jensen case there was clear territorial implications, but this Court had already decided the Nordenholt case in 259 U.S. in an opinion by Mr. Justice McReynolds who was the author of the Jensen opinion.

And the Court held that an injury to a longshoreman on a pier was covered by the State Workers’ Compensation Law.

This is no — this was no mere straining to find some way to provide compensation.

The Court in its opinion referred to the doctrine that locality and I’m quoting “locality is the exclusive test of admiralty jurisdiction.”

It said, Eisends who was the injured workman, was injured upon the dock, an extension of the land, “See Cleveland Terminal and Valley Railroad Company against Cleveland Steamship Company.”

This was the setting in which Congress legislated.

Its understanding was made explicit in the report of the Senate Committee which is set forth on page 13 of the Government’s brief.

Now the Senate Report said that injuries occurring in loading or unloading are not covered unless they occur on the ship or between the wharf and the ship so as to bring them within the maritime jurisdiction of the United States.

In the process of enacting the statute, we have further evidence.

For there was at one time in the Bills as they went through Congress a general provision that it should apply to any employment performed on a place within the admiralty jurisdiction of the United States, except employment of local concern, and of no direct relation to navigation or commerce.

All of which would have been very uncertain in scope and would have yielded would’ve meant itself to a construction in this case in accordance with that of the court below.

But Congress took that out and substituted in its place the language which has persisted unchanged for more than 40 years upon the navigable waters of the United States including any dry dock.

This showed a clearly territorial approach which is surely understandable in the light of the decisions as they stood at that time.

Next, I would point out that this was the immediate and long continued consistent administrative construction of the statute which should be given great weight at this late day.

Almost at once, and in a long series of rulings, the administrative agency charged with the application of the statute construed it not to apply to pier side injuries as it has done in this case.

And finally, since the statute was enacted, this Court’s decisions lead to the same conclusion as long ago as 1941.

Erwin N. Griswold:

This Court said in Parker against Motor Boat Sales and I quote, “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.

And shortly thereafter in Davis against the Department of Labor, the Court said that “Congress as by the Longshoreman’s Act accepted the Jensen line of demarcation between state and federal jurisdiction.”

And more specifically in Swanson against Marra Bros. Company, to which Mr. Coleman has referred, the Court held almost directly that a pier side injury was covered by the Longshoreman’s Act citing and relying on the Nordenholt case.

I turn now to the Calbeck case, which is of course an important authority in the construction of the Longshoreman’s Act.

My submission is that it supports our construction of the statute.

Some language in it is taken out of context to sustain the contrary argument.

But that argument will not survive, I submit, when the language is placed in the context of the decision as a whole.

In the first place, we must give consideration to the actual facts of the Calbeck case.

The language of an opinion of course takes significance as applied to the facts which were before the Court.

And in the Calbeck case, the Court was dealing with an injury to an employee who was working on a ship which was afloat on navigable waters.

This is the clearest possible situation within the admiralty jurisdiction and within the Jensen case.

The workmen there were on the water side of the Jensen line of demarcation.

And what the Court said has great relevance to injuries which are so clearly maritime that this was the area on which the Court focused is clearly shown by the repeated references in the opinion to “injuries incurred on navigable waters.”

This phrase occurs at least nine times in the opinion with slight variations. As to such injuries, the Court did use some rather broad language, but it was only such injuries that were actually before the Court.

That the Court did not intend to go further is shown by its reference to the ex-adoption of, and here again I quote “the Jensen line between admiralty and state jurisdiction as the limit of federal coverage.”

And its reference to the fact that in Davis against the Department of Labor, the Court had pointed out that, and again I quote “the Act adopts the Jensen line of demarcation.”

It should be observed too that the in the Calbeck case, the Court at page 129 cited the Nordenholt case with approval.

Where it had been held just before the enactment of the statute, that injuries on piers were on the state authority side of the Jensen line of demarcation.

Thus, Calbeck when closely examined deals only with the water side of the Jensen Act of demarcation.

It accepts —

Abe Fortas:

Suppose there were a — suppose Mr. Solicitor General it were a floating pier upon tombs, there are some, does that make any difference?

Erwin N. Griswold:

Yes, I think the floating dock might be the equivalent of a vessel, I don’t know.

Then it would be upon navigable waters.

I can only say that we don’t have that case here.

Abe Fortas:

I understand we don’t have that case here.

But it’s just the fact that it’s above the water and not on it that makes a —

Erwin N. Griswold:

Certainly a barge floating beside a ship which is being used in unloading a ship would be within the admiralty jurisdiction.

And I don’t recall a case which has involved a floating pier.

But I think that it’s very likely that that would be held to be within the admiralty jurisdiction.

Erwin N. Griswold:

Certainly, it was not the situation which was involved in the Nordenholt case which was a fixed structure built on land.

Calbeck as I have said does accept the Nordenholt case and makes it plain that a pier side injury such as that involved here is and always has been understood to be covered by the state acts.

And is thus outside the scope of the Longshoreman’s Act not only because the injury is on the state side of the Jensen line of demarcation, but also because coverage of the Longshoreman’s Act is expressly excluded by the final clause of Section 3 (a) since a remedy under the State Act is clearly available.

And this is the case it seems to me where that final clause can properly be applied.

In the Calbeck case, the Court did quote some rather expansive language from Judge Hutcheson in the De Bardeleben Coal case.

But nevertheless, the case itself involves injuries which were clearly on the water side of the Jensen line of demarcation.

Congress did undertake to use its authority to the full as it then understood its authority to be under this Court’s decisions.

In undertaking to meet its responsibility, it drew the line which it understood to be the Jensen line of demarcation to which this Court has frequently since made reference.

Though it may be that it could draw the line some place else if it were enacting the statute now, and I think it could. This is the place where it did draw the line when it enacted this statute in 1927.

Nothing that has happened since is an appropriate reason for a court to draw the line someplace else that is the responsibility and the prerogative of Congress.

Earl Warren:

We’ll recess.

John J. O’Connor, Jr.:

I should like to define the issues involved in these cases.

At the conclusion of my introductory portion, I’ll be very happy to proceed in which ever direction you suggest.

One, discuss the points set forth in my brief but in a different sequence.

Two, limit my discussion basically to the philosophy of five cases of this Court commencing with O’Donnell versus Great Lakes and terminating with the Reed decision.

Or three, devoting the time I have allotted to responding to any questions you may care to direct to me.

First of all, these cases involve longshoreman who are members of a gang, a work unit, actively engaged in discharging cargo from a vessel alongside of a pier.

Their duties, their rest periods, their lunch periods require them to go back and forth between the vessel and the pier.

They’re doing the same work.

They’re receiving the same pay.

They are exposed to the same risks.

We’re not dealing in this case with anyone running to an office downtown, anyone working in a machine shop, anyone driving a laundry truck.

My second point is the issue in these cases is not of constitutional magnitude.

Jensen, Stewart, Dawson these cases held that admiralty was exclusively federal and that states could not be permitted to invade that domain with or without attempted congressional sanction.

The crucial question in these cases is this.

May the federal government legislate in a field where the states may also have exercised some dominion?

These other cases we’re looking in the opposite direction.

They were — the issue there was one of permissiveness by this Court and not a limitation on the power or the authority of the federal government.

The third point, there are two basic sources of jurisdiction for Congress, one the admiralty article, two the commerce article.

I’m afraid I must differ with the distinguished Solicitor General when he appeared before you a few moments ago.

John J. O’Connor, Jr.:

He indicated that the exclusive source of admiralty jurisdiction was locality.

Locality determines jurisdiction with reference to torts.

But admiralty also has the contract aspect and there, it’s the nature of the contract and not the locality.

In addition to this, we have the commerce power.

These two powers are totally separate distinct independent.

They may be exercised jointly or independently.

In the Longshoreman Act, Congress was aware of and actually did exercise both of these powers.

The next point I find myself in agreement with the Solicitor General, we feel that these cases revolve about the correct liberal interpretation of the simple term “upon the navigable waters of the United States.”

The Court of Appeals held that this term applied equally to all structures on navigable waters whether the structure happened to be a pier or a ship.

And also to all injuries, whether the longshoreman happened to be aboard the ship on the deck, or on the deck of a pier.

The final comment in this introductory portion I should like to make is this Your Honors.

Under the Maryland law, the widow and the family would receive a maximum of $15,000.00, under the federal statute the benefits will be in the neighborhood of $63,000.00.

We submit that a hidden issue in this case the cause to the insurance company and ultimately to the stevedoring contractor.

And as this Court has repeatedly held that is not a valid issue.

The human cost of doing business should be born by the industry and not by the victim of the industry.

The — before I leave that, I think Mr. Justice Fortas directed a question to the Solicitor General and inquired “suppose we have a floating dry dock belay that a floating pier, what would be the ruling in such a situation?”

Well it so happens that there has been such a case.

And this is illustrative of the conflict and the confusion which is existing throughout the country today.

A recovery for the longshoreman was awarded by the compensation commissioner.

As I recalled it, this recovery was affirmed by the District Court.

It then went up to the appellate level in the Fifth Circuit.

The same circuit that has provided several of the authorities relied upon by the petitioners in this case.

The Court of Appeals for the Fifth Circuit in a decision in 1967, I’m not sure whether it’s Travelers versus Shea in 382 F.2d. or Nicholson versus Calbeck in 385 F.2d.

But the Court of Appeals reversed and held that the injury was not compensable under the Act.

Now, my first point, if you wish me to follow the brief basically.

Alright, but suppose I take the first point that I may deviate to another system Mr. Chief Justice.

My first point is, in addition to mean factually upon navigable waters, piers or their indispensable edge-ons, the facts of these cases are conceded.

We might say that there’s a veritable tidal wave of navigable waters in these cases.

First, we have the Solicitor General’s brief.

He says the relevant facts are not in dispute.

John J. O’Connor, Jr.:

Then we have the admissions on the pleadings and the Klosek and Johnson cases.

I’m on page 29 of my brief at this point.

And of course in these undisputed verities is the fact the piers involved on our controversy are “upon navigable waters.”

Now going back to Johnson and Klosek, in our complaint for review which was filed on the admiralty side in the District of Maryland, we asserted “the complainant was working as a longshoreman on the 600 foot Bethlehem Steel High Pier located upon navigable waters” that’s our allegation.

Paragraph two of the answer of the petitioner in Nacirema in this particular case reads as follows.

“This respondent admits the matters and facts alleged in the second article of the complaint.”

Turning our attention briefly to the Avery case, there is an expressed stipulation to that effect.

That appears at page 9 of the appendix that the pier is upon navigable waters.

Over and above that, in the finding of fact by Deputy Commissioner Traynor, he held as a fact “the surface of the pier is situated over the navigable waters.”

And of course we have the admissions made by Mr. Coleman when he first appeared before you.

He stated “there’s no question that the Patapsco River is navigable waters of the United States.”

Point three of his concession was that the pier was located on pilings and its small boats could navigate under them.

It is our position that this often by itself is dispositive of the issue involved in this case.

Now, suppose I pass on to an analysis of the principle and philosophy in the — what I consider the five leading cases.

My brief, I believe, contains references to 60 some odd cases.

I think these are the most important.

The first one is O’Donnell versus Great Lakes Dredge and Dry — Dock Company.

This particular decision involved a suit by a seaman incidentally where back in — that’s right 1943.

This case involved a suit by a seaman who was working on a type of vessel that transported sand.

This sand was taken ashore by some sort of a pipeline system.

He was ashore repairing a gasket on this discharging device.

He filed a suit under the Jones Act and his claim was denied by the lower court.

This Court entertained certiorari, issued the writ and the case came up for disposition.

Now, we feel that it’s extremely interesting to note that O’Donnell in 1943 interpreted the scope of the Jones Act and fundamentally the same words as this Court did some 20 years later when it delineated the borders of the Longshoreman’s Act in Calbeck.

In O’Donnell Mr. Chief Justice Stone in resisting an attempt to restrict the coverage of this beneficial Seaman’s Act stated, I quote this is on page 39 of the opinion.

“Congress in the absence of any indication of a different purpose, must be taken to have intended to make them” — them is the words of the Jones Act — “make them so far as the words and the Constitution permit and to have given to them the full support of all the constitutional power it possesses, hence the Act allows the recovery sought unless the Constitution forbids it.”

That is the end of the quotation.

The Jones Act as you may recall was passed in 1920.

It took that Act 23 years to come before this Court for the final interpretation.

The Longshoreman Act is taken a bit longer.

John J. O’Connor, Jr.:

The second case I should like to discuss briefly with you is Avondale Marine Ways versus Henderson.

This is a 1953 decision of this Court in which the Court issued a per curiam decision representing the views of eight members of the Court.

There was no dissent, one judge did not participate.

O’Donnell I believe was also a unanimous decision.

In Avondale, the Court was dealing with a dry dock case.

The Longshoreman Act covers two categories of workers.

It covers your longshoreman who’s working on the pier and the ship and also covers your dry dock employees.

In Avondale, the situation is set forth in a footnote in the lower court’s opinion.

The factual backdrop was this, this is footnote 2.

By stipulation or by the uncontroverted testimony, it was established that at the time of the explosion on the barge, the barge had been hauled out of the Mississippi River on the cradle of a marine railway.

We’re dealing with a marine railway not technically a dry dock.

And that both cradle and barge at the time of the explosion and for sometime previously thereto, had been at rest ashore at a point 400 feet from the water.

To the predecessor court, it was so obvious that the Longshoreman Act should be liberally construed and applied.

It did not even bother with writing an opinion.

It had a one sentence per curiam affirming an award in favor of the man who was injured on this barge 400 feet inland of navigable waters.

Not on a dry dock but on a marine railway.

Our analogy there is that if the dry dock portion of coverage is to be applied with sufficient liberality as to embrace someone 400 feet inland, certainly a man injured on a pier just a few feet from the edge of the ship and still at that time physically upon navigable waters should also be held to be encompassed within the protection intended by Congress when this Act was passed back in 1937.

The third case of course is our incomparable Calbeck.

That has been pretty well commented upon already.

I don’t know whether any further elaboration is required at this time.

I don’t want to belabor it.

The courts have not concurred in the views expressed by Mr. Coleman when he tries to place a very limited application on this case.

Now as we all know, a case has basically two components.

First it has the precise determination of the issue based on the particular facts.

Secondly, from that precise determination it transcends into establishing or following a principle.

Now the principle of law, we all know the facts of Calbeck.

Simply that although in the past state camp was held applicable to a launched but uncompleted ship.

The lower court I think said it’s about 57% complete.

Although the past law stated that the state could award compensation.

Calbeck held that nevertheless the compensation, the Longshoreman’s Compensation Act also applied to that situation.

John J. O’Connor, Jr.:

And the mere fact that there may have been recognized or permitted stated jurisdiction did not oust the federal government either Congress or the courts of its or their control and jurisdiction over admiralty matters and navigable water.

We feel we have the same precise situation here.

In Calbeck, there’s no question that the statutes of Louisiana could apply too and be availed out by that workman.

Similarly here, there’s no question that the statutes, the workman’s compensation of Maryland could apply to Mr. Johnson and also to the widow of Mrs. Klosek.

But we submit that is totally insignificant.

This case is not one of constitutional scope.

We’re not determining how far can the states go.

We’re merely deciding if the state was permitted in the past to exercise some jurisdiction in this field.

Does that mean if we have been ousted of our tradition authority, which of course is all way back of 1789?

The next —

Abe Fortas:

What do you do with the last part of 903 (a)?

John J. O’Connor, Jr.:

What is that Mr. Justice Fortas?

Abe Fortas:

It says that after providing a compensation shall be payable in respect of disability or death if the injury occurred on navigable waters.

John J. O’Connor, Jr.:

Yes, sir.

Abe Fortas:

And it says “and if recovery for the disability or death may not validly be provided by state law.”

John J. O’Connor, Jr.:

Well Calbeck very effectively disposed of that sir.

I’ll see if I can get the precise quotation from that decision.

Yes sir, on page 117 of 370 U.S., this Court asserted.

Let’s see, that was a 6 to 2 decision.

“Our conclusion is that Congress invoked its constitutional power so as to provide compensation for all injuries sustained by employees on navigable waters whether or not a particular injury might also have been within the constitutional reach of a state workman’s compensation law.”

Abe Fortas:

Well do you say that that’s the answer to my question?

John J. O’Connor, Jr.:

Yes, sir.

That was one of the main points that was emphasized and stressed in the Calbeck case, in the briefs and also in the opinion of, I forgot who authored the opinion in the Fifth Circuit.

Is there any further elaboration you would like sir?

Abe Fortas:

Well, I suppose that calls for study and not elaboration.

Thank you.

John J. O’Connor, Jr.:

Thank you Mr. Justice Fortas.

The next case I should like to discuss briefly with Your Honors is Gutierrez versus Waterman Steamship Corporation decided in 1963, and authored by Mr. Justice White.

That was a decision by this Court that divided the 8 to 1.

This is frequently been referred to as the “beans on the dock case” in Puerto Rico.

John J. O’Connor, Jr.:

A longshoreman filed a suit and recovered in his action.

This was appealed to the First Circuit and the lower court’s decision was reversed.

The recovery was taken away from him.

Then it came up before this Court on writ.

I’d like to read these excerpts from the opinion.

This is 209 of 373 U.S.

“Respondent contends that it is not liable at least in admiralty because the impact of its alleged lack of care or unseaworthiness was felt on the pier rather than aboard ship.

Whatever validity this proposition may have had until 1948, the passage of the extension of Admiralty Jurisdiction Act swept it away when it made vessels on navigable water “liable for ‘damages or injury’ not withstanding that such damage or injury may be done or consummated on land.”

On page 210 we find this excerpt and I read it principally because of the situations conjured up in the brief submitted by an amicus on behalf of petitioners.

“Various farfetched hypotheticals are raised such as a suit in admiralty for an ordinary automobile accident involving a ship’s officer on ship’s business and port, or for someone slipping on beans that continue to leak from these bags in a warehouse in Denver.

We think it’s sufficient for the needs of this occasion to hold that the case is within the maritime jurisdiction under 46 U.S.C. Section 740, when as here it is alleged that the shipowner commits a tort while or before the ship is being unloaded.

And the impact of which is felt assure at a time and place not remote from the wrongful act.”

Byron R. White:

What’s the —

John J. O’Connor, Jr.:

This quotation Your Honor?

From Gutierrez, the Gutierrez decision.

The final excerpt is this brief paragraphed on page 215 of the same decision.

“We agree with this reading of the case law and hold that the duty to provide a seaworthy ship and gear, including cargo containers applies to longshoremen unloading the ship whether they are standing aboard ship or on the pier.”

We think we have a very analogous situation here.

We feel that the Longshoreman Act applies whether the man is on the deck of the ship or on the deck of the pier.

And the basis of that is that the foundation of the Longshoreman Act is the admiralty power of the United States.

It is the same power which gave rise to the enactment of the Jones Act, which again was an employer-employee relationship.

The admiralty article of the Constitution also confers admiralty jurisdiction on this Court.

This Court in exercise of that jurisdiction and in recognition of its humanitarian objective to protect maritime workers has been constantly extending the seaworthiness or the unseaworthiness doctrine.

We feel that it’s almost incomprehensible to hold that this open-end unseaworthiness protection is available to a longshoreman if he’s injured on the pier, and yet the protection expressly designed for him by the Longshoreman Act has denied him when he is injured on that same pier.

The final case is Reed versus S.S. Yaka.

That was decided the same term of the Court 1963.

This particular opinion was authored by Mr. Justice Black.

It represented the views of seven members of the Court.

In that case, we were dealing with a situation where the injured person filed suit against the bareboat charterer who was also his employer.

There was a provision in the Act which exonerated the employer from a damage suit.

John J. O’Connor, Jr.:

The Court of Appeals held that since a suit could not be instituted in personam, therefore a suit could not be instituted in rem.

This of course was an in rem proceeding, so the lower court held that he had no cause of action.

This Court took the case and of course held otherwise.

I’m reading now from page 415 of 373 U.S.

We have previously said that the Longshoreman’s Act “must be liberally construed in conformance with its purpose and in a way which avoids harsh and incongruous results.”

We think it would produce a harsh and incongruous result one out of keeping with a dominant intent of Congress to help longshoreman to distinguish between liability to longshoremen injured under precisely the same circumstances, because some draw their pay directly from a shipowner, and others from a stevedoring company doing the ships service.

The analogy here I think was sort of anticipated by Mr. Justice Fortas when he said, “suppose this sling of cargo struck two men working on the pier, just knocking one down or over to the edge of the pier and flushing the other one off into the water.

The one that went into the water would be covered.

The one who had the misfortune to just be knocked sideways a little distance would not be covered under our — under the theory that is argued for by the petitioners in this particular case.”

And we say this would be harsh and incongruous result, because their dawned the same precise type of work.

Byron R. White:

Was it reasonably clear before the Admiralty Extension Act that injuries on a pier were not — injuries on a pier to a longshoreman were not actionable in admiralty?

John J. O’Connor, Jr.:

I really can’t directly answer that sir.

I tried to find out Mr. Justice White just at what point a pier being an extension of land came into the law books.

And I couldn’t locate it.

Now it makes —

Byron R. White:

Well, what gave rise to the Admiralty Extension Act?

John J. O’Connor, Jr.:

I wish I could answer that sir but I can’t.

Perhaps the Solicitor General when he comes back before you may be able to fill that void.

Byron R. White:

But you are using the Admiralty Extension Act —

John J. O’Connor, Jr.:

Yes sir, I am.

Byron R. White:

— in your argument aren’t you?

John J. O’Connor, Jr.:

Yes, sir.

Byron R. White:

But you don’t know what gave rise to it?

John J. O’Connor, Jr.:

Well, possibly the — back in 1865 or thereabout that was a situation where for some sparks from the funnel set fire on the shore.

Byron R. White:

Well, what was the so-called Jensen line?

John J. O’Connor, Jr.:

The Jensen line Your Honor, as I understand it, is solely a decision that the states cannot legislate in the admiralty field.

For the simple reason that must be uniform — I beg your pardon?

Byron R. White:

And did the Jensen case defined what that line was between the — did it have anything to do with docks and gangplanks and ships?

John J. O’Connor, Jr.:

Jensen itself, Your Honor — Jensen was a longshoreman who operated an electric truck who went back and forth from the pier to the ship.

He was killed when he was taking cargo out off the ship’s hold on to the gangway.

John J. O’Connor, Jr.:

It somehow it became filed up, he went back and he hit his head on the ship and sustained a broken neck.

So Jensen sustained his injury as a result of striking the ship.

It was held that his injury was within the federal domain and that the New York State Compensation Act could not be applied.

That’s the factual backdrop of the Jensen decision.

Following that we have Dawson and Knickerbocker-Ice case, and the — belay that.

Following that, Congress tried to pass two different laws, but neither one passed judicial scrutiny by this Court because both laws tried to confer on the state authority to act in this field.

And this Court stated that that would interfere with, disrupt and perhaps destroy the uniformity that we must have in the admiralty field.

Byron R. White:

What do some of the cases mean when they say that the Longshoreman’s Act adopted the Jensen line?

John J. O’Connor, Jr.:

That escapes me, Your Honor, because this Court has never held that Congress did not have the authority to legislate in this particular field.

I think one of your questions directed to Mr. Coleman and —

Byron R. White:

I know but the Court has indicated the — this Court has indicated that the Longshoreman’s Act adapted the Jensen line.

Now, whatever that line is?

John J. O’Connor, Jr.:

Well I don’t think it’s —

Byron R. White:

Hasn’t the Court so indicated that the Longshoreman’s Act adopted the Jensen line?

John J. O’Connor, Jr.:

There are — yes sir.

There are dictas in the various decisions which expressly refer to the Jensen line of demarcation.

That is absolutely correct.

Byron R. White:

Between what demarcation?

John J. O’Connor, Jr.:

I don’t know.

Jensen actually was injured as a result of a ship — might I say ship born injury because he struck the side of the ship.

And also, it’s been universally held that a — except that I shouldn’t say held, because I don’t think it’s been expressly before this Court in dicta has appeared in different cases.

It has been sort of universally accepted that on board ship or on board the gangway federal on the pier state.

I believe at one time with reference to pier injuries, they even held that depends on what direction what you’re going.

If you’re going from the pier to the ship, it’s land.

If you’re coming from the ship to the pier, you’re still on a ship until you reach the pier.

But I think these hairsplitting distinctions have all been done away with.

And again Your Honor, I think we’re dealing in this particular case or these cases with a liberal interpretation of a liberal statute, Workman’s Compensation Law.

So these distinctions which might have to be measured by maybe Johansen blocks the real delicate calipers shouldn’t take up the time of the Court, where I think we should be dealing what is fair and equitable and what did Congress intend by passing this Act to aid and assist these men that were exposed to these numerous damages and injuries because of the hazards of their occupation.

The final excerpt from Reed versus Yaka is the following.

“As we said in a slightly different factual context all were subjected to the same danger, all were entitled to light treatment under law.”

John J. O’Connor, Jr.:

In the conclusion portion of my brief commencing on page 34, I set forth various anomalies and bizarre situations which the petitioners are requesting this Court to ratify and support.

If I may touch briefly upon the legislative history of the Act, if one thing stands out pre-eminently, it’s the congressional resolve to avoid the constitutional pitfall of lack of uniformity which caused Congress to stumble in its two earlier attempts to help longshoremen.

The preoccupation of the chairman with uniformity and his apprehensiveness over its possible vitiating absence, seamen were left out of the Act.

The only omission to seamen, everything else there is to extend and enlarge it that’s why they put in “including any dry dock”, because in normal common sense factual appraisal, a dry dock is not upon navigable waters.

So that was a term of inclusion.

The chairman was concerned because seamen were omitted.

And this preoccupation is apparent throughout all the proceedings, the Senate hearings and also the hearings before the House of Representatives.

Now with represent — with reference to the uniformity of full coverage, there was just about unanimous accord.

The committees in both Houses wanted to avoid the constitutional flaw in the law.

Labor both the ILA and the shipyard unions wanted full coverage.

Management supported it, in fact Mr. Keating was very critical who represented the shipowners and a very noted admiralty proctor at that time.

He was critical of the Act because he was afraid that wasn’t embracive enough, it didn’t include everyone.

And that was one of the reasons why they changed the terminology from a place upon — place in admiralty jurisdiction and provided that it’s not a question of local concern and whatnot.

The government agency entrusted with the administration of the Act when it all facets of the job covered.

And to argue that the Congress of the United States deliberately excluded 25% of the longshoreman workforce, statistically 25 were on the pier and 75 are aboard ship.

To argue that, that they’re not protected by the Act is driving to defeat the very uniformity that Congress not only strove for but actually achieved.

My final comment will be this Your Honors.

It may come as a shock to petitioners who are so patently outnumbered of some pre-1927 views, but one can not thrust the mighty 42-year oak of the Act back into its embryonic acorn.

Both the seaworthiness doctrine and the Act, and we may also interpolate here the Jones Act as well, are traceable to a common origin solicitude for maritime workers who spend their lives in such a hazardous occupation.

As the seaworthiness doctrine has grown, as the application of the Jones Act has been extended, these have expanded these have developed down through the years, so to it is respectfully submitted must the Longshoreman Act.

Thank you.

Ralph Rabinowitz:

Mr. Chief Justice, and may it please the Court.

My name is —

Earl Warren:

Mr. Rabinowitz.

Ralph Rabinowitz:

— Ralph Rabinowitz from Norfolk, Virginia and I represent longshoreman Albert Avery who has been attempting to get compensation under this Act since 1961.

I take it the question before the Court is, did not Congress whose dominant purpose was to help longshoremen intended the Longshoreman’s Compensation Act to cover injuries caused by ship’s gear to a longshoreman in the ship’s gang working the ship from a pier built upon freely flowing navigable waters.

Going right to Calbeck, the Solicitor General would have us disregard what he calls broad language.

The Court was construing the very coverage language that we are involved here today with 903 of the Act.

And the Court said in Calbeck, “Our conclusion is that Congress invoked its constitutional power so as to provide compensation for all injuries sustained by employees on navigable waters whether or not a particular injury might also have been within the constitutional reach of a state Workman’s Compensation Law.”

Potter Stewart:

Yes, but you rather slipped over a rather key phrase that is on navigable waters.

Ralph Rabinowitz:

Yes, Your Honor, and this injury was upon the navigable waters.

This injury was upon the navigable waters both factually and legally.

Now going right to the question that was asked about Jensen, which I think the Court has asked.

Jensen was a case that said “state compensation commissions you can’t touch these people because this is an admiralty matter.”

After that the states over reacted to Jensen.

For example, the best illustration of that is a case called Anderson against Johnson Lighterage Company, 120 New York 55.

That’s a case where a longshoreman on the dock, he was on the dock and he slipped down on the dock.

And it was in 1918 which is right after Jensen in 1917.

Now, the New York people wanted to give this fellow compensation.

It went up through the courts, through the Court of Appeals of New York, which included Cardoso, and reading Jensen the said “we can’t give this fellow compensation, why?

Because in Jensen the court had said the work of a stevedore is maritime in nature and his employment was a maritime contract.

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” and so even the fellow on the dock couldn’t get compensation.

Then the Nordenholt case came along and this is history which Mr. Justice Brennan went through in the Calbeck case to come out with the holding in Calbeck, which is very important to this Court.

Now you come up with Nordenholt.

Now in Nordenholt, the Court said “well, this fellow fell down from a bag of stock of pile on the dock and there’s no pertinent federal statute.”

And they started the local concern doctrine, or they said it’s a bad result, let’s start a local concern doctrine.

Let’s say that fellow who fell on the dock and his mother won’t be able to get compensation, he was killed because of Jensen.

If we say that, he won’t get compensation, let’s start the local concern doctrine.

And they said “there’s no pertinent federal statute and the — that result will not do material prejudice or will not affect materially the maritime jurisdiction of the United States.”

And so they started the local concern doctrine.

Now let’s go back to poor Johnson, poor Johnson the fellow in New York. After the Nordenholt case came out he said “I fell on the dock too.”

He went back and asked for a rehearing and the New York courts said “no, no, no we don’t care about Nordenholt.

We still think Jensen doesn’t let you get compensation because you are fulfilling a maritime contract.

You are a stevedore.”

And citing Imbrovek, which I never can pronounce, I don’t know if that’s quite correct.

But the Court in Jensen said citing Imbrovek that “this is a maritime matter.”

This is exclusively within the cognizance of maritime matters.

The Constitution Article III Section 2 gives these powers to admiralty which is a federal domain, area of federal conference.

Now this is what the Court meant I believe in Calbeck.

When Mr. Justice Brennan said at 37120 “there emerges from a complete legislative history a congressional desire for a statute which would provide compensation for all injuries to employees on navigable waters; in every case that is where a Jensen might have seen to preclude state compensation.”

Ralph Rabinowitz:

I think that’s important.

Remember poor Johnson here on the dock.

The New York court saying “you can’t get compensation” because Johnson said it appear to us that you can’t get compensation because of Jensen.

So I think that’s what the Court’s were talking about and that’s what Mr. Justice Brennan, so precisely set out in Calbeck.

And that’s why he said “we can’t allow this area of federal domain to be — to depend on whether or not a state act applies or not, we can’t let that happen, this is a Longshoreman’s Act.”

And that’s precisely what he said.

And that’s why it is important to remember that Calbeck said “it is sufficient to say that Congress intended the Compensation Act to have a coverage coextensive with the limits of its authority.”

Excuse me Your Honor, Justice Black?

Hugo L. Black:

Limits of what?

Ralph Rabinowitz:

Limits of its authority, limits of its authority.

And its authority is the admiralty in maritime jurisdiction of the United States, if Your Honor please.

And the Extension Act, going to that question, the Extension Act.

The Extension Act only cleared up a fuzzy area.

It’s been applied retroactively, it’s been applied retroactively.

Mr. Justice Hand in the Second Circuit had held in the Strika case that dock side injuries were within maritime competence without benefit, without benefit of the Admiralty Extension Act.

And I believe it’s clear that you just cleared up an area that was fuzzy.

Now the basis of the Act —

Byron R. White:

What was the basis for this Court (inaudible) jurisdiction?

Ralph Rabinowitz:

Admiralty tort jurisdiction, they were old cases that said that.

Yes Your Honor, they were old cases that said, pre-1927 cases that said that they were not within the admiralty tort jurisdiction.

Byron R. White:

One that a seaman or a long — a seaman that was injured on the dock couldn’t sue the vessel?

Ralph Rabinowitz:

There were cases, pre-1927 cases that said that.

Byron R. White:

Were they ever changed or overruled that you know of?

Ralph Rabinowitz:

Well the Strika case did and that was before the Extension Act.

Strika was a longshoreman who was injured in the dock, if Your Honor please.

Byron R. White:

What’s the citation of that here?

Ralph Rabinowitz:

Yes sir.

He is hurt by something falling from the vessel or either swinging low or something like that.

Byron R. White:

Whose case was that?

Ralph Rabinowitz:

Justice Learned Hand.

Ralph Rabinowitz:

Strika against Netherlands Ministry 185 F.2d 555, Second Circuit.

Byron R. White:

And the other case is — were cases in this Court?

Ralph Rabinowitz:

There were cases in this Court that pre-1927 cases did not — that said docks —

Byron R. White:

Well, Strika couldn’t very well overrule them, couldn’t it?

Ralph Rabinowitz:

Strika got around them.

I don’t remember how Judge, but to be precise and correct to tell Your Honor, I direct myself to this Court.

It would not — if he expressly —

Byron R. White:

Well if you look at the legislative history of the Admiralty Extension Act?

Ralph Rabinowitz:

Obviously.

Byron R. White:

Well, do you know why it was passed?

Ralph Rabinowitz:

I think it was passed and this is just to surmise.

It’s not based on a study of the history that —

Byron R. White:

Well never mind then.

Ralph Rabinowitz:

Yes sir.

Going on to the argument, it is clear that Calbeck expressly repudiated a determination on the basis of the line of demarcation.

And this is quoting from Calbeck again.

“A line of demarcation as a static point fixed at pre-1927 constitutional decisions.”

The Court in Calbeck holds if there are areas where the states may act or may not act.

But this has not effect on whether federal compensation applies.

There’s nothing in the history — I have read the legislative history of the Longshoreman’s Act, and the — it’s one time when the employer’s and the employee’s representatives were together.

They all wanted a broad Act, and there’s nothing in that Act or the legislative history which shows anything but a congressional interest in covering workers in maritime employment injured as these fellows were right beside the ship, working the ship, they could’ve gone aboard the ship if their employer had said “go aboard the ship” that morning they would’ve been aboard the ship.

If one of their fellows had said “I want to switch places with you today” they would’ve been aboard the ship.

There’s no difference in the hazards or the work they do.

Going now to and closing as I see my time is close to ending.

Sir?

Earl Warren:

It is ended.

Ralph Rabinowitz:

Has it ended?

May I say one last thing Judge and I will close with that if you — Mr. Chief Justice?

I say to this Court in conclusion that this case could be affirmed and should be affirmed.

It could be affirmed on a very narrow ground, and that is that all these fellows, all these longshoreman, remember this is an Act called the Longshoreman’s Act passed for the benefit of longshoremen, were injured by ship’s gear while serving the ships.

Ralph Rabinowitz:

And they were on areas.

They were on areas that were constructed over the navigable waters of the United States, as simple as that.

And I respectfully suggest to the Court that that is the proper result.

And I respectfully pray that the Court affirm the judgment of the en banc court of the Fourth Circuit.

Earl Warren:

Mr. Coleman.

Randall C. Coleman:

Mr. Chief Justice, and may it please the Court.

I have about a minute left.

I’d like to call Mr. Justice White’s attention and I won’t attempt to read it.

But in — at page 25 Your Honor of the appendix, Judge Watkins the District Court — the district judge who decided these cases did go into the legislative history of the Extension Act.

Byron R. White:

Thank you.

Randall C. Coleman:

And the last thing I would say, Your Honors, is that I think it becomes abundantly clear why the argument made by respondent should be made to the legislature when one considers that there are states in which the benefits afforded by the state acts exceed those afforded by the federal acts.

And in those states, I would suggest that perhaps this action would not have been brought.

And this is not a case of no compensation.

These men have gotten state compensation.

It’s just a question they’re trying here to get compensation under an Act, which we submit, Your Honors, does not apply to them.

Thank you, sir.