Nacirema Operating Co. v. Johnson, 396 U.S. 212 (1969)

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U.S. Supreme Court NACIREMA CO. v. JOHNSON, 396 U.S. 212 (1969) 396 U.S. 212

NACIREMA OPERATING CO., INC., ET AL. v. JOHNSON ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 9. Argued March 25, 1969 Reargued October 20, 1969 Decided December 9, 1969*

[Footnote *] Together with No. 16, Traynor et al., Deputy Commissioners v. Johnson et al., also on certiorari to the same court.

[Page 396 U.S. 212, 213]

and on the reargument in both cases. Ralph Rabinowitz argued the cause and filed a brief for respondent Avery on the original argument and on the reargument in both cases.

E. D. Vickery, Francis A. Scanlan, Scott H. Elder, and J. Stewart Harrison filed a brief for the National Maritime Compensation Committee as amicus curiae urging reversal in both cases.

Briefs of amici curiae urging affirmance in both cases were filed by Louis Waldman and Seymour M. Waldman for the International Longshoremen's Association, AFL-CIO, and by Paul S. Edelman for the American Trial Lawyers Association.

MR. JUSTICE WHITE delivered the opinion of the Court.

The single question of statutory construction presented by these cases is whether injuries to longshoremen occurring on piers permanently affixed to shore are compensable under the Longshoremen's and Harbor Workers' Compensation Act of 1927 (Longshoremen's Act), 44 Stat. 1424, 33 U.S.C. 901-950.

Johnson and Klosek were employed by the Nacirema Operating Company as longshoremen; Avery was similarly employed by the Old Dominion Stevedoring Corporation. All three men were engaged at the time of their accidents in performing similar operations as "slingers," attaching cargo from railroad cars located on piers[Footnote 1] to ships' cranes for removal to the ships. Klosek was killed, and each of the other men was injured, when cargo hoisted by the ship's crane swung back and knocked him to the pier or crushed him against the side of the

[Page 396 U.S. 212, 214]

railroad car. Deputy Commissioners of the United States Department of Labor denied claims for compensation in each case on the ground that the injuries had not occurred "upon the navigable waters of the United States" as required by the Act.[Footnote 2] The District Courts upheld the Deputy Commissioners' decisions. 243 F. Supp. 184 (D.C. Md. 1965); 245 F. Supp. 51 (D.C. E. D. Va. 1965). The Court of Appeals for the Fourth Circuit, sitting en banc, reversed.[Footnote 3] 398 F.2d 900 (1968). We granted certiorari, 393 U.S. 976 (1968), to resolve the resulting conflict with decisions in other circuits holding that pier injuries are not covered by the Act.[Footnote 4] We have concluded from an examination of the language, purpose, and legislative history of the Act, as well as prior decisions of this Court, that the judgment of the Court of Appeals must be reversed.

[Page 396 U.S. 212, 215]

and piers, permanently affixed to land, are extensions of the land.[Footnote 5] Thus, literally read, a statute that covers injuries "upon the navigable waters" would not cover injuries on a pier even though the pier, like a bridge, extends over navigable waters.[Footnote 6]

Respondents urge, however, that the 1927 Act, though it employs language that determines coverage by the "situs" of the injury, was nevertheless aimed at broader coverage: coverage of the "status" of the longshoreman employed in performing a maritime contract. We do not agree. Congress might have extended coverage to all longshoremen by exercising its power over maritime contracts.[Footnote 7] But the language of the Act is to the contrary

[Page 396 U.S. 212, 216]

and the background of the statute leaves little doubt that Congress' concern in providing compensation was a narrower one.

Ten years before the Act was passed this Court in Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917), held that a State was without power to extend a compensation remedy to a longshoreman injured on the gangplank between the ship and the pier. The decision left longshoremen injured on the seaward side of the pier without a compensation remedy, while longshoremen injured on the pier enjoyed the protection of state compensation acts. State Industrial Commission v. Nordenholt Corp., 259 U.S. 263 (1922).

Twice Congress attempted to fill this gap by passing legislation that would have extended state compensation remedies beyond the line drawn in Jensen.[Footnote 8] Each time, this Court struck down the statute as an unlawful delegation of congressional power. Washington v. Dawson & Co., 264 U.S. 219 (1924); Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920). Finally, responding to this Court's suggestion that what Congress could not empower the States to do, it could do itself,[Footnote 9] Congress passed the Longshoremen's Act. The clear implication is that in enacting its own compensation statute, Congress

[Page 396 U.S. 212, 217]

was trying to do what it had failed to do in earlier attempts: to extend a compensation remedy to workmen injured beyond the pier and hence beyond the jurisdiction of the States. This purpose was clearly expressed in the language limiting coverage to injuries occurring "upon the navigable waters," and permitting recovery only "if recovery . . . through workmen's compensation proceedings may not validly be provided by State law."[Footnote 10]

This conclusion is fully supported by the legislative history. As originally drafted, 3 extended coverage to injuries "on a place within the admiralty jurisdiction of the United States, except employment of local concern and of no direct relation to navigation and commerce."[Footnote 11] During the hearings, it was repeatedly emphasized and apparently assumed by representatives from both the shipping industry and the unions that a "place within the admiralty jurisdiction" did not include a dock or pier.[Footnote 12] In fact, a representative of the Labor Department

[Page 396 U.S. 212, 218]

objected to the bill precisely for that reason, urging the Committee to extend coverage to embrace the contract, "and not the man simply when he is on the ship."[Footnote 13] If Congress had intended to adopt that suggestion, it could not have chosen a more inappropriate way of expressing its intent than by substituting the words "upon the navigable waters" for the words "within the admiralty jurisdiction."[Footnote 14] Indeed, the Senate Report that accompanied the revised bill, containing the language of the present Act, makes clear that the suggestion was rejected, rather than adopted: "[I]njuries occurring in

[Page 396 U.S. 212, 219]

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." S. Rep. No. 973, 69th Cong., 1st Sess., 16. We decline to ignore these explicit indications of a design to provide compensation only beyond the pier where the States could not reach. "That is the gap that we are trying to fill."[Footnote 15] In filling that gap Congress did not extend coverage to longshoremen like those respondents whose injuries occurred on the landward side of the Jensen line,

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clearly entitling them to protection under state compensation Acts.[Footnote 16]

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by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land."

By its very choice of language, the Act re-enforces the conclusion that Congress was well aware of the distinction between land injuries and water injuries and that when it limited recovery to injuries on navigable waters, it did not mean injuries on land. The Act no doubt extended the admiralty tort jurisdiction to ship-caused injuries on a pier. But far from modifying the clear understanding in the law that a pier was an extension of land and that a pier injury was not on navigable waters but on land, the Act accepts that rule and nevertheless declares such injuries to be maritime torts if caused by a vessel on navigable waters.

The Extension Act was passed to remedy the completely different problem that arose from the fact that parties aggrieved by injuries done by ships to bridges, docks, and the like could not get into admiralty at all.[Footnote 17] There is no evidence that Congress thereby intended to amend or affect the coverage of the Longshoremen's Act or to overrule Swanson v. Marra Bros., supra, decided just two years earlier.[Footnote 18] While the Extension

[Page 396 U.S. 212, 223]

Act may have the effect of permitting respondents to maintain an otherwise unavailable libel in admiralty,[Footnote 19] see Gutierrez v. Waterman S. S. Corp., 373 U.S. 206 (1963), the Act has no bearing whatsoever on their right to a compensation remedy under the Longshoremen's Act.

[Page 396 U.S. 212, 216]

elements of both tort and contract, Congress need not have tested coverage by locality alone. As the text indicates, however, the history of the Act shows that Congress did indeed do just that.

Footnote 8 Act of October 6, 1917, 40 Stat. 395; Act of June 10, 1922, 42 Stat. 634.

Footnote 9 Washington v. Dawson & Co., 264 U.S. 219, 227 (1924). The passage from Dawson & Co. was referred to in the hearings in both the Senate and the House. See Hearings on S. 3170 before a Subcommittee of the Senate Committee on the Judiciary, 69th Cong., 1st Sess., 18, 31, 103 and n. 3 (1926) (hereinafter "Senate Hearings"); Hearing on H. R. 9498 before the House Committee on the Judiciary, 69th Cong., 1st Sess., ser. 16, pp. 18, 119 and n. 3 (1926) (hereinafter "House Hearing").

Footnote 10 Drydocks were conceded to be within the admiralty jurisdiction in both the hearings and the debates, even though such structures are not always floating structures. See House Hearing 34; 68 Cong. Rec. 5403 (1927). If Congress had thought the words "upon the navigable waters" were broad enough to embrace the limits of admiralty jurisdiction, there would have been no need to add the parenthetical "(including any dry dock)."

Footnote 11 See Senate Hearings 2.

Footnote 12 Mr. Dempsey, representing the International Longshoremen's Association, testified that the bill would cover injuries on the dock as well as on the ship. When pressed as to how injuries on the dock could come within the admiralty jurisdiction, he confessed he did not understand the legal theory, and would defer to the longshoremen's attorney, Mr. Austin. Mr. Austin proceeded to testify: that the dock was not within the admiralty jurisdiction; that injuries on the dock were compensable under state law; that the problem arose because the longshoreman was left "high and dry" once he left the State's jurisdiction and stepped on the gangplank; and that "[t]hat is the gap that we are trying to fill . . . ." Senate Hearings 28, 30-31. Testimony that longshoremen injured on the docks would

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not be covered by the Act also came from representatives of the shipbuilders. See Senate Hearings 58, 95, 103. See also n. 15, infra; Hearing on S. 3170 before the House Committee on the Judiciary, 69th Cong., 1st Sess., ser. 16, pt. 2, pp. 141, 157 (1926) (testimony on the revised bill, containing the language of the present 3).

Footnote 13 Senate Hearings 40.

Footnote 14 While the reason for the change in the language concerning the bill's coverage is not expressly indicated, it appears to have been a response to objections that the original language, carving out an exception for employment of "local concern," was too vague to define clearly the line being drawn, and might even encounter problems once again at the hands of this Court. See Senate Hearings 56-57, 95; House Hearing 77, 100. In fact, the same spokesman for the shipbuilders who objected to the vagueness of the "local concern" exception, also objected that the bill as written might "upset all the present arrangements with respect to compensating men on the dock." Senate Hearings 57. The implication is that no one expected the federal law to extend into the area of the State's jurisdiction on the dock, but that confusion existed as to whether, conversely, state remedies would be exclusive as to injuries "on navigable waters" but within the "maritime but local" exception created by Grant Smith-Porter Ship Co. v. Rohde, (1922). This reading of the legislative history was adopted in Calbeck v. Travelers Insurance Co., 370 U.S. 114, 121-127 (1962), where the Court concluded that the Act did not prevent recovery for injuries on navigable waters, even though a state remedy would also have been available under Rohde.

Footnote 15 See n. 12, supra. Other indications that Congress had no intention of replacing or overlapping state compensation remedies for dockside injuries can be found throughout the hearings. At one point, in attempting to calculate the increased costs involved in the federal Act, Senator Cummins, Chairman of the Committee, pointed out that "we are proceeding on the theory that these people can not be compensated under the New York compensation law or any other compensation law." "[T]he purpose of this law," he agreed with a witness, was simply to cover the men who "are going to be exposed a part of the time on board vessels . . . and therefore will have to be compensated in some other way where the New York law is not the remedy available." Senate Hearings 84-85. Similarly, Representative Graham, Chairman of the House Committee, agreed that "the real necessity for this legislation" was to provide workers with compensation when they stepped from dock to ship. House Hearing 25. In fact, the labor representative who was testifying at that point in the hearing insisted that the legislation sought was only for "[t]hose who are injured on board vessels at the dock." Those injured on the dock "are taken care of under the State law." Id., at 28. There was also testimony by a longshoremen's representative that "65 per cent of the accidents in the courts of New York happen on board ships or on gangplanks; . . . therefore . . . 65 per cent of the accidents of the men who are injured by performing this work will be compensable under this bill." Id., at 35. See also id., at 44. Another noted that "our men that are working on the dock are protected, and well protected, under the New York compensation act, but our men on board ship are not protected. We feel that Congress wants to protect them . . . ." Senate Hearings 42.

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is inescapable. "The two statutes do not deal with the same subject matter, are inherently inconsistent with each other, and cannot be read as being in pari materia." 243 F. Supp. 184, 194 (1965). It is worth noting that a contemporaneous amendment of the Longshoremen's Act contains no cross reference to the Extension Act. See Act of June 24, 1948, 62 Stat. 602 (a bill to increase benefits under the Longshoremen's Act, passed five days after the Extension Act). And, a House Report dated July 28, 1958 - 10 years after enactment of the Extension Act - points out that employees "on the navigable waters of the United States" are covered under the Longshoremen's Act, but are under state protection "when performing work on docks and in other shore areas." H. R. Rep. No. 2287, 85th Cong., 2d Sess., 2 (accompanying a bill to provide safety programs for longshoremen).

Footnote 19 We were informed in argument that two of the parties have in fact already commenced actions against the shipowner.

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK and MR. JUSTICE BRENNAN concur, dissenting.

We dissent for the reasons stated by Judge Sobeloff speaking for the Court of Appeals sitting en banc. 398 F.2d 900. As he says, the Longshoremen's and Harbor Workers' Compensation Act is not restricted to conventional "admiralty tort jurisdiction" but is "status oriented, reaching all injuries sustained by longshoremen in the course of their employment." Id., at 904. The matter should be at rest after Calbeck v. Travelers Insurance Co., . In that suit under this Act we said that "`Congress intended the compensation act to have a coverage co-extensive with the limits of its authority.'" Id., at 130, quoting from De Bardeleben Coal Corp. v. Henderson, 142 F.2d 481, 483. Judge Sobeloff in the instant cases, while answering the argument that Calbeck was not concerned with the meaning of "upon the navigable waters," referred to Judge Palmieri's opinion in Michigan Mutual Liability Co. v. Arrien, 233 F. Supp. 496, 500, aff'd, 344 F.2d 640:

"What is just as important as the actual holding in Calbeck is the general approach to the [Longshoremen's Compensation] Act taken by the Court. No longer is the Act viewed as merely filling in the interstices around the shore line of the state acts, but rather as an affirmative exercise of admiralty jurisdiction."

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