DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR, PETITIONER v. PERINI NORTH RIVER ASSOCIATES, ET
AL.

   No. 81-897

   In the Supreme Court of the United States

   October Term, 1981

   On Writ of Certiorari to the United States Court of Appeals for the
Second Circuit

   Brief for the Petitioner

                       PARTIES TO THE PROCEEDING

   In addition to the parties named in the caption, claimant Raymond
Churchill and Hartford Accident & Indemnity Company are respondents in
this Court.

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statute involved
   Statement
   Summary of argument
   Argument
      A marine construction worker injured upon actual
      navigable waters, who would have been covered
      before the 1972 LHWCA amendments, is "engaged in
      maritime employment" within the meaning of
      Section 2(3) of the amended Act
      A. In amending the Act in 1972, Congress
         intended to extend federal coverage to workers on
         shore, not to withdraw coverage from workers who are
         injured while at work on actual navigable waters
         1. Maritime jurisdiction before the 1927 Act
         2. Coverage under the 1927 Act
         3. Coverage under the 1972 amendments
      B. The "maritime employment" requirement of the
         amended Act does not incorporate the previously
         discredited "significant relationship to navigation
         or commerce" test
         1. Retaining LHWCA coverage for all injuries
            to workers occurring upon actual navigable
            waters is consistent with the statutory scheme of
            the 1972 amendments
         2. The "navigation or commerce" test is not
            mandated by this Court's decision in P.C.
            Pfeiffer Co. v. Ford
         3. Adoption of a "navigation or commerce" test
            would frustrate Congress' intent to provide
            a sure and effective compensation remedy for
            all injuries sustained on navigable waters
         4. Denial of LHWCA coverage to some workers
            injured on actual navigable waters would result in
            unacceptable difficulty in administering the
            LHWCA
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-6a) is reported
at 652 F.2d 255.  The opinion of the Benefits Review Board (Pet. App.
9a-28a) is reported at 12 B.R.B.S. 929.  The decision of the
Administrative Law Judge (Pet. App. 29a-32a) is not reported.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 7a-8a) was entered
on June 17, 1981.  On September 8, 1981, Justice Marshall extended the
time within which to file a petition for a writ of certiorari to and
including November 13, 1981.  The petition for a writ of certiorari
was filed on November 12, 1981, and was granted on February 22, 1982
(A. 21).  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                           STATUTE INVOLVED

   1. Section 3(a) of the Longshoremen's and Harbor Workers'
Compensation Act, 33 U.S.C. 903(a), provides in pertinent part:

         Compensation shall be payable under this (Act) in respect of
      disability or death of an employee but only if the disability or
      death results from an injury occurring upon the navigable waters
      of the United States (including any adjoining pier, wharf, dry
      dock, terminal, building way, marine railway, or other adjoining
      area customarily used by an employer in loading, unloading,
      repairing, or building a vessel). * * *

   2. Section 2(3) of the Act, 33 U.S.C. 902(3), provides in pertinent
part:

         The term "employee" means any person engaged in maritime
      employment, including any longshoreman or other person engaged
      in longshoring operations, and any harborworker including a ship
      repairman, shipbuilder, and shipbreaker * * *.

                          QUESTION PRESENTED

   Whether a marine construction worker injured while working on
actual navigable waters is "engaged in maritime employment" within the
meaning of Section 2(3) of the Longshoremen's and Harbor workers'
Compensation Act, 33 U.S.C. 902(3), and is thus covered by the Act.

                               STATEMENT

   1. Raymond Churchill, an employee of respondent Perini North River
Associates, was injured in a job-related accident at the site of the
North River Pollution Control Project, a sewage treatment plant under
construction on the Hudson River in New York City (Pet. App. 3a,
29a-30a).  Perini had contracted to build the foundation or
substructure for the plant, which extends approximately 700 feet over
the Hudson River between 135th and 145th Streets in Manhattan (id. at
30a).  The construction contract required Perini to "place 2,300
hollow circular pipes, called caissons, in navigable waters down to
embedded rock, to fill the caissons with concrete, to connect them
together at proper elevations above the water with concrete beams, and
to place precast concrete slabs on top of the beams." Fusco v. Perini
North River Associates, 601 F.2d 659, 661 (2d Cir. 1979) (Fusco I),
vacated and remanded, 444 U.S. 1028, rev'd on remand, 622 F.2d 1111
(1980) (Fusco II), cert. denied, 449 U.S. 1131 (1981).  /1/ The
caissons were delivered by railroad to the New Jersey side of the
Hudson River, where they were loaded onto supply barges and towed
across the river to await unloading and installation (A. 7-8, 18-19).
Employees on the construction project worked from barges (A. 7-8) and
float stages (A. 16-17) or from parts of the uncompleted substructure.

   Raymond Churchill is a dockbuilder foreman and has been a member of
the dockbuilders' union for more than 20 years (Pet. App. 3a).  On the
North River Project, Churchill was in charge of all work performed on
one of the crane barges used to load and unload caissons and other
construction materials from supply barges and to set caissons in
position for driving into the river bed (id. at 11a-12a, 14a-15a;  A.
6-8, 19).  Churchill was injured on the deck of his crane barge on
October 9, 1974, while giving signals to a crane operator engaged in
unloading a caisson from a supply barge (Pet. App. 30a;  A. 9-11).  As
the caisson was being lifted, the "tag line" attached to the bottom of
the caisson to keep it from turning suddenly became taut and struck
Churchill with enough force to hurl him about 15 feet (Pet. App. 3a;
A. 11-12), resulting in injuries to his left leg, thumb, and head
(Pet. App. 30a).

   2. Churchill filed a claim for compensation under the
Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C.
(& Supp. III) 901 et seq.  Respondent Perini denied that Churchill was
covered by the Act, and the case was referred to an administrative law
judge (ALJ) for a formal hearing on the coverage issue, pursuant to 33
U.S.C. (& Supp. III) 919.  After an evidentiary hearing, the ALJ held
that Churchill's injury was not covered by the Act.  The ALJ concluded
that Churchill was not "engaged in maritime employment" within the
meaning of Section 2(3) of the Act, 33 U.S.C. 902(3), because his job
did not have a significant relationship to navigation and commerce
over navigable waters (Pet. App. 31a):

      It is determined here that claimant's employment was not
      maritime in (the) traditional sense, but was customary
      construction work.  Indeed, it is typical of the support tasks
      performed for any construction project -- irrespective of
      location.  Mere construction over navigable water here does not
      magically convert his work, lacking even a remote connection to
      navigation and commerce, into maritime employment.  /2/

   Churchill and the Director, Office of Workers' Compensation
Programs, appealed to the Benefits Review Board pursuant to 33 U.S.C.
921(b)(3).  The Board consolidated the appeals with five other cases
involving Perini employees and affirmed the ALJ'S denial of coverage
by a 2-1 vote (Pet. App. 11a-16a).  Relying on the Second Circuit's
second decision in Fusco II, supra, 622 F.2d at 1111, /3/ which
involved the same employer and construction of the same project, the
Board held that marine construction workers building facilities that
are not ultimately used in navigation or commerce on navigable waters
are not engaged in "maritime employment" (Pet. App. 13a).  The Board
also rejected the contention that Churchill's duties, which included
unloading construction materials from barges, were alone sufficient to
bring him within the Act's coverage as a "person engaged in
longshoring operations" within the meaning of Section 2(3) of the Act,
33 U.S.C. 902(3) (Pet. App. 14a-15a).  Board Member Miller dissented
because, in his view, "all injuries sustained in the course of
employment by employees over 'navigable waters,' as that term was
defined prior to the 1972 Amendments, are covered under the (amended)
Act" (id. at 17a).  He also contended that this Court's rationale in
Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715 (1980), compelled a
finding of coverage under the amended federal Act (Pet. App. 21a-22a).

   Churchill sought review of the Board's decision in the court of
appeals pursuant to 33 U.S.C. 921(c).  The Director participated as a
respondent and filed a brief in support of Churchill's petition for
review.  The court denied the petition, relying on its earlier denial
of coverage to workers injured on the same construction project in the
Fusco litigation.  /4/ The court concluded that a marine construction
worker who is injured while unloading a barge upon actual navigable
waters is not a covered "maritime" employee under the amended Act
because his employment lacks a "significant relationship to navigation
or to commerce on navigable waters" (Pet. App. 2a n.1).

                          SUMMARY OF ARGUMENT

   The court of appeals improperly denied coverage under the
Longshoremen's and Harbor Workers' Compensation Act to a maritime
worker injured on actual navigable waters.  The original LHWCA was
enacted by Congress in 1927 in response to decisions of this Court
that held that state workers' compensation remedies could not
constitutionally extend to employees injured upon actual navigable
waters if their employment possessed a direct relationship to
navigation or commerce.  For nearly 35 years following the passage of
the original legislation, federal workers struggled under the
"maritime-but-local" doctrine to determine which injuries over
navigable waters were remediable under state compensation acts and
which fell exclusively within the jurisdiction of the LHWCA because
the employment at issue was significantly related to navigation or
commerce.  In Davis v. Department of Labor, 317 U.S. 249 (1942), and
Calbeck v. Travelers Insurance Co., 370 U.S. 114 (1962), this Court
finally put an end to this "jurisdictional monstrosity" by declaring
that federal jurisdiction extended to all injuries occurring on actual
navigable waters, regardless of whether the particular employment
involved was directly related to traditional concepts of navigation or
commerce.  Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 720 (1980).

   The 1972 amendments to the LHWCA do not revive the "jurisdictional
dilemma" that prevailed prior to this Court's "clarifying opinions in
Davis and Calbeck." Sun Ship, Inc. v. Pennsylvania, supra, 447 U.S. at
720.  The undisputed congressional intent behind the 1972 amendments
was to extend LHWCA coverage ashore "to permit a uniform compensation
system to apply to employees who would otherwise be covered * * * for
(only) part of their activit(ies)." S. Rep. No. 92-1125, 92d Cong., 2d
Sess. 13 (1972);  H.R. Rep. No. 92-1441, 92d Cong., 2d Sess. 10-11
(1972).  Congress expressly declared that the amendments did not
withdraw coverage from "employees traditionally covered." S. Rep. No.
92-1125, supra, at 16.  Thus, the amendments were not designed to
withdraw the coverage that previously had been held to exist for
employees injured while working on actual navigable waters.  Congress,
moreover, explicitly repealed a provision of the 1927 Act, that had
been interpreted as restricting federal coverage to employment on the
water possessing a significant relationship to navigation or commerce.
 There is therefore no basis for the court of appeals' conclusion that
federal jurisdiction under the amended Act extends only to employment
possessing a significant relationship to navigation or commerce.

   Preserving LHWCA coverage for all injuries occurring on actual
navigable waters is entirely consistent with the statutory scheme of
the amended Act.  Coverage under the Act as amended in 1972 hinges
upon the "situs" of the injury and the "status" of the injured
employee.  Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 265
(1977).  An injury occurring on actual navigable waters clearly meets
the "situs" test.  33 U.S.C. 903(a).  A worker injured in the course
of his regular employment over navigable waters, furthermore, meets
the "status" test of Section 2(3) of the Act, 33 U.S.C. 902(3).
Workers injured upon actual navigable waters are perforce engaged in
"maritime employment," because they must daily face the difficulties,
dangers, and challenges of working in a marine environment.  This
conclusion does not conflict with this Court's reasoning in P.C.
Pfeiffer Co. v. Ford, 444 U.S. 69, 79 (1979), that "maritime
employment" embodies "an occupational rather than a geographic
concept." Nothing in that opinion purports to exclude the location of
an employee's work activities from the determination of "maritime
employment." Rather, the opinion stresses that "the crucial factor" in
making that determination "is the nature of the activity to which a
worker may be assigned." 444 U.S. at 82.  No factor is more important
in evaluating the maritime nature of any employment than the fact that
it takes place upon actual navigable waters.

   Moreover, restricting federal coverage under the LHWCA to
employment on the water that meets the technical dictates of the
"navigation or commerce" test would undermine the central purpose of
the amended Act.  The federal compensation remedy embodied in the
LHWCA was designed to provide workers with "sure and certain relief"
(Davis v. Department of Labor, supra, 317 U.S. at 254) without
"uncertainty as to the source, state or federal, of that remedy."
Calbeck v. Travelers Insurance Co., supra, 370 U.S. at 124.  Confining
LHWCA coverage to employment meeting the "navigation or commerce" test
would result in the creation of two discrete jurisdictional spheres
for injuries occurring upon navigable waters:  the LHWCA would apply
solely to employment meeting the "navigation or commerce" test,
whereas state compensation remedies alone would apply to injuries
lacking that elusive requirement.  Because "the boundary at which
state remedies (give) way to federal remedies (is) far from obvious in
individual cases * * * the injured worker (would therefore be)
compelled to make a jurisdictional guess before filing a claim," with
the price of error being "unnecessary expense and possible foreclosure
from the proper forum by statute of limitations." Sun Ship, Inc. v.
Pennsylvania, supra, 447 U.S. at 718.  This result, which the Court
has consistently rejected, should not be permitted to prevail under
the 1972 amendments.

   Unless federal jurisdiction under the amended Act is preserved for
all injuries occurring upon actual navigable waters, this and other
federal courts will once again become embroiled in the futile search
for a definite dividing line between federal and state jurisdiction in
individual cases.  Injured employees seeking coverage under the Act
will be "thrust * * * into the same jurisdictional peril from which
they were rescued by Davis and Calbeck v. Travelers Insurance Co."
(Sun Ship, Inc. v. Pennsylvania, supra, 447 U.S. at 725), and the
administrative tribunals and federal courts administering the Act will
confront a rapidly expanding maze of conflicting coverage decisions.
"The legislative policy animating the LHWCA'S landward shift was
remedial;  the amendments' framers acted out of solicitude for the
workers." Sun Ship, Inc. v. Pennsylvania, supra, 447 U.S. at 725-726.
To affirm the decision below "would blunt the thrust of the 1972
amendments, and frustrate Congress' intent to aid the injured maritime
laborers." Id. at 726.

                               ARGUMENT

   A MARINE CONSTRUCTION WORKER INJURED UPON ACTUAL NAVIGABLE

   WATERS, WHO WOULD HAVE BEEN COVERED BEFORE THE 1972

   LHWCA AMENDMENTS, IS "ENGAGED IN MARITIME EMPLOYMENT"

   WITHIN THE MEANING OF SECTION 2(3) OF THE AMENDED ACT

   The court of appeals' decision denies coverage under the
Longshoremen's and Harbor Workers' Compensation Act to a marine
construction worker who was injured upon actual navigable waters and
who would have been covered under the Act before the 1972 amendments.
This case thus presents a straightforward issue of statutory
construction left unanswered by the Court in Northeast Marine Terminal
Co. v. Caputo, 432 U.S. 249, 265 n.25 (1977):  "(W)hether Congress
excluded people who would have been covered before the 1972
Amendments;  that is, workers who are injured on navigable waters as
previously defined."

   The court of appeals erred in concluding that Section 2(3) of the
amended Act necessarily demands that a worker injured on actual
navigable waters demonstrate that his work bears a "significant
relationship to navigation or to commerce on navigable waters'" (Pet.
App. 2a n.1, quoting Fusco II, supra, 622 F.2d at 1113).  This
requirement, as we show below, is contrary to both the congressional
intent in enacting the 1972 amendments and the past decisions of this
Court that have rejected such a predicate for federal coverage.  As a
result of the erroneous application of this "navigation or commerce"
test, the court of appeals denied LHWCA coverage to a worker who would
have been covered prior to the 1972 amendments, /5/ solely because he
was constructing a sewage treatment plant rather than a pier, dock, or
some other harbor facility presumably more directly related to
traditional navigation or commerce activities.

         A. In amending the Act in 1972, Congress intended to extend
      federal coverage to workers on shore, not to withdraw coverage
      from workers who are injured while at work on actual navigable
      waters

   The coverage of the Longshoremen's and Harbor Worker's Compensation
Act has been inseparably linked with the troublesome question of
delineating the scope of state and federal jurisdiction over maritime
injuries.  To understand fully the congressional intent behind the
1972 coverage amendments, therefore, it is necessary to trace once
again the history of the conflict between federal and state
jurisdiction in this area.  See, e.g., Sun Ship, Inc. v. Pennsylvania,
447 U.S. 715, 717-719 (1980);  P.C. Pfeiffer Co. v. Ford, 444 U.S. 69,
72-74 (1979);  Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249,
256-265 (1977).

             1. Maritime jurisdiction before the 1927 Act

   The LHWCA was enacted in 1927 because of the states' constitutional
inability to provide workers' compensation remedies for employment
injuries occurring on navigable waters.  /6/ In 1917, this Court held
that a state could not apply its workers' compensation remedies to an
injury sustained on a gangplank between a vessel and a wharf because
the federal government has the sole power, under the admiralty clause
of the Constitution, to regulate such occurrences on the navigable
waters of the United States.  Southern Pacific Co. v. Jensen, 244 U.S.
205 (1917).  Application of state workers' compensation law to such
injuries would "conflict() with the general maritime law, which
constitutes an integral part of the federal law under Art. III,
Section 2 of the Constitution." Id. at 212.  The Court reasoned that
allowing state law to apply "would impair the harmony and uniformity
which the constitutional grant to the Federal Government of the
admiralty power was meant to assure." Calbeck v. Travelers Insurance
Co., 370 U.S. 114, 117 (1962).  Thus, a boundary was drawn between
federal and state jurisdiction that came to be known as the Jensen
line:  injuries on the seward side of a pier were subject to federal
maritime jurisdiction, and injuries shoreward of that line could be
protected by state compensation acts.  See generally Northeast Marine
Terminal Co. v. Caputo, supra, 432 U.S. at 257.

   This coverage system proved unsatisfactory in practice, because
"the amphibious nature of longshoremen's work made it desirable to
have 'one law to cover their whole employment, whether directly part
of the process of loading or unloading a ship or not'" (Northeast
Marine Terminal Co. v. Caputo, supra, 432 U.S. at 257, quoting H.R.
Rep. No. 639, 67th Cong., 2d Sess. 2 (1922)).  In response to the
Jensen decision, Congress twice passed statutes placing injuries upon
the water within the reach of state compensation laws.  Act of Oct. 6,
1917, ch. 97, 40 Stat. 395;  Act of June 10, 1922, ch. 216, 42 Stat.
634.  The Jensen line, however, was held to be unyielding.  This Court
declared both statutes to be unconstitutional delegations of federal
admiralty power to the states.  Knickerbocker Ice Co. v. Stewart, 253
U.S. 149 (1920);  Washington v. W.C. Dawson & Co., 264 U.S. 219
(1924).

   As a result of Jensen and succeeding cases, thousands of maritime
workers were denied the benefits of workers' compensation coverage.
The rigors of the Jensen line, however, were somewhat softened during
this period by the development of the "maritime-but-local" doctrine.
Under that doctrine, state workers' compensation law could
constitutionally be applied to some "maritime" employment -- that is,
work on navigable waters -- if the particular maritime job was deemed
"local in character." The Court's rationale for this seeming break in
the Jensen line was that if employment was "local," application of
state law would not work "material prejudice to the general maritime
law," nor would it interfere with the proper harmony and uniformity of
that law in its international and interstate relations.  Grant
Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 477 (1922), citing
Western Fuel Co. v. Garcia, 257 U.S. 233 (1921).  Employment seaward
of the Jensen line was held to be "maritime-but-local" and thus
subject to state regulation if it bore no direct relationship to
navigation or commerce.  Calbeck v. Travelers Insurance Co., supra,
370 U.S. at 122-123.  Compare Grant Smith-Porter Ship Co. v. Rohde,
supra, 257 U.S. at 477 (local law could apply because the employment
"had no direct relation to navigation"), with Northern Coal & Dock Co.
v. Strand, 278 U.S. 142, 144 (1928) (local law could not apply because
the job had a "direct relation to commerce and navigation.")

   The "maritime-but-local" doctrine, predictably, engendered
considerable litigation.  /7/ But, despite this litigation, "(n)o
dependable definition of the area * * * where state laws could apply
ever emerged" from the many decisions of this and other courts that
attempted to identify direct relationships to navigation or commerce.
Calbeck v. Travelers Insurance Co., supra, 370 U.S. at 119.

                    2. Coverage under the 1927 Act

   In response to this state of affairs, in which a maritime employee
on the water was deprived of any compensation remedy if his work was
deemed to have a direct relationship to navigation or commerce,
Congress enacted the Longshoremen's and Habor Workers' Compensation
Act, ch. 509, 44 Stat. 1424 et seq., in 1927.  Under the original Act,
coverage depended upon where an injury occurred.  The general rule was
that all injuries sustained during the course of employment on actual
navigable waters were covered under the Act, while those incurred on
land were not.  Sun Ship, Inc. v. Pennsylvania, supra, 447 U.S. at 718
(piror to 1972 LHWCA comprehended 'all injuries sustained by employees
on navigable waters'") (quoting Calbeck v. Travelers Insurance Co.,
supra, 370 U.S. at 124);  G. Gilmore & C. Black, The Law of Admiralty
428 (2d ed. 1975).  See also P.C. Pfeiffer Co. v. Ford, supra, 444
U.S. at 72-73;  Nacirema Operating Co. v. Johnson, 396 U.S. 212,
218-220 (1969).  /8/

   Former Section 3(a) of the Act, 44 Stat. 1426 (previously codified
at 33 U.S.C. (1970 ed.) 903(a)), provided that compensation was
payable to an injured "employee" for any "injury occurring upon the
navigable waters of the United States (including any dry dock) * * *."
An "employee" was defined only in negative terms:  seamen and persons
engaged by a master to load, unload, or repair small vessels were
excluded from coverage.  See former Section 2(3), 44 Stat. 1425
(previously codified at 33 U.S.C. (1970 ed.) 902(3)).  More important,
Congress specifically rejected an exception to LHWCA coverage for
employment "of no direct relation to navigation and commerce" because
such an exemption "threatened to perpetuate * * * uncertainties of
coverage." Calbeck v. Travelers Insurance Co., supra, 370 U.S. at 122.
 The Act as adopted used the term "maritime employment" only in a
definitional section:  an "employer" under the Act was defined as "an
employer any of whose employees are employed in maritime employment,
in whole or in part, upon the navigable waters of the United States
(including any dry dock)." 44 Stat. 1425.  The "maritime employment"
requirement of the 1927 Act was rarely discussed by the courts,
however, because any employee injured while working on the water was
assumed to provide the requisite "maritime employment" nexus.  G.
Gilmore & C. Black, The Law of Admiralty, supra, at 428;  see also
Pennsylvania R.R. v. O'Rourke, 344 U.S. 334, 339-340 (1953);  Nogueira
v. New York, N.H. & H.R.R., 281 U.S. 128, 131-132 (1930).  As
Professors Gilmore and Black note, the question whether a worker was
employed by a statutory "employer" meeting the "maritime employment"
test did not, "before the 1972 amendments, account() for any
litigation." G. Gilmore & C. Black, The Law of Admiralty, supra, at
428.  There was some litigation regarding whether particular workers
were excluded from the Act as Jones Act seamen, but virtually none
regarding whether particular workers were engaged by a statutory
"employer." "Workers who are not seamen but who nevertheless suffer
injury on navigable waters are no doubt (or so the courts have been
willing to assume) engaged in 'maritime employment'. * * * (N)o one
seems to have doubted that they could recover under the L(W)HCA,
provided only that the proof satisfied the 'navigable waters' test."
Ibid.  /9/

   The clearest pre-1972 analysis of when a particular employment can
be considered "maritime" is contained in cases struggling with the
"maritime-but-local" doctrine.  The federal-state jurisdictional
dilemma continued unabated after 1927 for those workers injured on
navigable waters whose employment was arguably not directly related to
navigation or commerce.  Section 3(a) of the original Act provided
that employees were covered only "if recovery * * * may not validly be
provided by State law." 33 U.S.C. (1970 ed.) 903(a).  Many courts
construed this proviso as excluding from federal coverage any
employment that was previously held to be within the constitutional
reach of the states before the federal Act was passed, notwithstanding
the fact that Congress had specifically rejected an exemption from
LHWCA coverage for "employment of local concern." Calbeck v. Travelers
Insurance Co., supra, 370 U.S. at 122 (emphasis deleted).  Thus,
courts applied with considerable travail the "navigation or commerce"
test to determine whether a particular job was "maritime" within the
scope of the federal Act, or "maritime-but-local" and therefore
outside the coverage of the LHWCA.  See, e.g., Travelers Insurance Co.
v. Calbeck, 293 F.2d 52, 56 (5th Cir. 1961) ("those on the 'admiralty'
side are exclusively covered by the Longshoremen's Act;  those on the
'maritime but local' side are state";  footnote omitted), rev'd, 370
U.S. 114 (1962);  Motor Boat Sales, Inc. v. Parker, 116 F.2d 789,
792-793 (4th Cir.), rev'd, 314 U.S. 244 (1941);  Union Oil Co. v.
Pillsbury, 63 F.2d 925 (9th Cir. 1933).

   After 15 years of struggling with the unpredictable
"maritime-but-local" doctrine on a case by case basis, this Court
attempted to bring some order to this federal-state jurisdictional
quagmire in Davis v. Department of Labor, 317 U.S. 249 (1942).  Davis
was a maritime construction coverage case much like the instant one,
involving a structural steelworker who drowned after falling from a
barge while dismantling an abandoned bridge across a navigable river.
317 U.S. at 251.  The question was whether a state workers'
compensation law could apply in such a situation, even though the
state supreme court had concluded that the claimant's employment was
unquestionably maritime and beyond the limits of state coverage,
because it was not of purely local concern.  This Court noted that the
claimant's employment occupied a "shadowy area within which, at some
undefined and undefinable point, state laws can validly provide
compensation." 317 U.S. at 253.  Determination of whether a particular
employment was "maritime" and strictly federal or
"maritime-but-local," furthermore, had become "extremely difficult."
Ibid.  Notwithstanding the difficulty of the question, however,
"employees are asked to determine with certainty before bringing their
actions that factual question over which courts regularly divide among
themselves and within their own membership.  As penalty for error, the
injured individual may not only suffer serious financial loss through
the delay and expense of litigation, but discover that his claim has
been barred by the statute of limitations in the proper forum while he
was erroneously pursuing it elsewhere." Id. at 254.  Noting that the
"horns of the jurisdictional dilemma press as sharply on employers as
on employees" (id. at 255), the Court determined that some employment
on navigable waters lay within a "twilight zone" that could validly be
reached by either state workers' compensation law or the LHWCA.  Id.
at 256.  The Court therefore reversed the decision of the state
supreme court and permitted recovery under state law notwithstanding
the fact that the technical dictates of the "maritime-but-local"
doctrine did not clearly indicate that result.

   The final blow to the "maritime-but-local" doctrine came 20 years
after Davis in Calbeck v. Travelers Insurance Co., 370 U.S. 114
(1962).  In Calbeck, federal coverage was sustained for workers
injured while constructing new vessels afloat upon navigable waters --
maritime employment that traditionally had been held to be "local" and
thus subject to exclusive state jurisdiction.  See Grant Smith-Porter
Ship Co. v. Rohde, supra.  The Court completely abolished the
"maritime-but-local" exception to federal coverage for injuries
occurring on navigable waters, reasoning that by enacting the LHWCA
Congress had intended to establish concurrent jurisdiction over
"maritime-but-local" employment:  injuries on the water having no
direct relationship to navigation or commerce were compensable under
both federal and state law.

   "There emerges from the complete legislative history" of the
federal Act, the Court said, "a congressional desire for a statute
which would provide federal compensation for all injuries to employees
on navigable waters;  in every case, that is, where Jensen might have
seemed to preclude state compensation." Calbeck v. Travelers Insurance
Co., supra, 370 U.S. at 120-121.  The Court noted (id. at 122-123)
that Congress had deleted from the original version of the Act a
"local concern" exception to LHWCA coverage for employment of "no
direct relation to navigation and commerce" because of the
demonstrable uncertainty of such a test.  Although the courts had
imported the test back into the Act, after years of litigation "the
contours of the 'local concern' concept * * * have remained
necessarily vague and uncertain." Id. at 124-125.  This confusion
negated one of "the chief purposes of the Longshoremen's Act" (id. at
126), because the Act was "designed to ensure that a compensation
remedy existed for all injuries sustained by employees on navigable
waters, and to avoid uncertainty as to the source, state or federal,
of that remedy." Id. at 124.  The Court therefore concluded that
Congress intended the Act to reach "all those cases of injury to
employees on navigable waters as to which Jensen * * * had rendered
questionable the availability of a state compensation remedy" (id. at
126;  footnote omitted), whether or not the particular maritime
employment was directly related to navigation or commerce and thus
also "within the constitutional reach of a state workmen's
compensation law" (id. at 127;  footnote omitted).

                 3. Coverage under the 1972 amendments

   Following this Court's decisions in Davis and Calbeck, it was
finally clear that federal coverage extended to all injuries occurring
over actual navigable waters.  Other decisions of the Court, moreover,
made it equally clear that coverage stopped at the water's edge.
Nacirema Operating Co. v. Johnson, supra, 396 U.S. at 219.  See also
Sun Ship, Inc. v. Pennsylvania, supra, 447 U.S. at 719 ("(I)njuries
suffered beyond navigable waters -- albeit within the range of federal
admiralty jurisdiction -- were remediable only under state law").
But, while the jurisdictional reach of the LHWCA was finally settled
(injuries occurring on the water were covered under the Act, those
occurring on land were not), the coverage provided by the Act was
somewhat irrational.  Amphibious workers, such as longshoremen,
continually walked in and out of federal coverage during the course of
their working day, each time they crossed the Jensen line.

   In 1972, Congress undertook the first major revision of the LHWCA
since 1927.  The main concern of these amendments, however, "was not
with the scope of coverage but with accommodating the desires of three
interested groups:  (1) shipowners who were discontented with the
decisions allowing many maritime workers to use the doctrine of
'seaworthiness' to recover full damages from shipowners regardless of
fault;  (2) employers of the longshoremen who, under another
judicially created doctrine, could be required to indemnify shipowners
and thereby lose the benefit of the intended exclusivity of the
compensation remedy;  and (3) workers who wanted to improve the
benefit schedule deemed inadequate by all parties." Northeast Marine
Terminal Co. v. Caputo, supra, 432 U.S. at 261 (footnote omitted).
Congress resolved these concerns by eliminating "seaworthiness" suits
by maritime employees covered under the Act, outlawing indemnification
actions by shipowners, and substantially increasing the benefits
payable under the Act.  Id. at 261-262.

   While the coverage of the 1927 Act was not a major motivating
factor behind the 1972 amendments, the substantially increased benefit
schedule of the amended Act heightened the perceived irrationality of
the Jensen line's demarcation of federal coverage.  Northeast Marine
Terminal Co. v. Caputo, supra, 432 U.S. at 262-263.  As the Senate
report on the amendments stated:  "It is apparent that if the Federal
benefit structure embodied in (the) Committee bill is enacted, there
would be a substantial disparity in benefits payable to a permanently
disabled longshoreman, depending on which side of the water's edge the
accident occurred * * *." S. Rep. No. 92-1125, 92d Cong., 2d Sess. 13
(1972).  The report noted that the "compensation payable to a
longshoreman or a ship repairman or builder should not depend on the
fortuitous circumstance of whether the injury occurred on land or over
water." Ibid.  Congress, therefore, extended LHWCA coverage ashore for
the first time by defining certain areas landward of the Jensen line
as "navigable waters" under the Act.  Thus, amended Section 3(a)
directs that compensation be paid for death or disability resulting
from an injury "occurring upon the navigable waters of the United
States (including any adjoining pier, wharf, dry dock, terminal,
building way, marine railway, or other adjoining area customarily used
by an employer in loading, unloading, repairing or building a
vessel)." 33 U.S.C. 903(a).

   This shoreward extension of coverage solved a longstanding problem
for longshoremen, shipbuilders, and other amphibious workers who,
under the old Act, had walked in and out of coverage during the course
of their working day.  See S. Rep. No. 92-1125, supra, at 13;  H.R.
Rep. No. 92-1441, 92d Cong. 2d Sess. 10-11 (1972);  Northeast Marine
Terminal Co. v. Caputo, supra, 432 U.S. at 273.  But, in the course of
resolving this problem, Congress created a new one:  many employees
working in the newly covered shoreside areas were engaged in
employment with no maritime connection whatsoever.  While such workers
had rarely wandered onto the covered situs when the Act was limited to
injuries on navigable waters, with the Act's newly expanded situs "it
became necessary to describe affirmatively the class of workers
Congress desired to compensate." Id. at 264.  Congress, therefore,
amended the definition of "employee" to cover "person(s) engaged in
maritime employment, including any longshoreman or other person
engaged in longshoring operations, and any harborworker including a
ship repairman, shipbuilder, and shipbreaker * * *." 33 U.S.C. 902(3).
 The question presented here is whether the "maritime employment"
requirement of Section 2(3) has placed some traditionally covered
workers outside the protection of the amended Act.

   Although the legislative history of the 1972 coverage amendments is
not extensive, the indisputable congressional purpose behind those
amendments was to expand coverage under the Act "to protect additional
workers." S. Rep. No. 92-1125, supra, at 1 (emphasis added).  P.C.
Pfeiffer Co. v. Ford, supra, 444 U.S. at 73;  Northeast Marine
Terminal Co. v. Caputo, supra, 432 U.S. at 251.  Contrary to the court
of appeals' conclusion, Congress clearly did not intend to exclude
from coverage any employee who was injured during the course of his
regular employment on actual navigable waters and who would have been
covered under the original Act.

   The amendments to Section 2(3) of the Act, defining "employee," and
to Section 3(a), the general coverage provision, were discussed in
both the Senate and House reports under the heading:  "Extension of
Coverage to Shoreside Areas." S. Rep. No. 92-1125, supra, at 12-13;
H.R. Rep. No. 92-1441, supra, at 10-11.  The unmistakable assumption
of the reports is that existing coverage for injuries on the water
would remain intact;  the amendments merely extended LHWCA coverage to
shoreside activities not previously covered.  /10/ "The intent of the
Committee is to permit a uniform compensation system to apply to
employees who would otherwise be covered by this Act for part of their
activity." S. Rep. No. 92-1125, supra, at 13;  H.R. Rep. No. 92-1441,
supra, at 10-11.  Churchill, like all amphibious workers, was "covered
by this Act for part of (his) activity" before the amendments.
Congress meant to extend that coverage to his activities ashore -- not
to withdraw it from his work afloat.  Indeed, this congressional
intent is explicitly stated in the Senate report:

      (A)mend(ed) section 2(3) * * * specifically includes any
      longshoreman or other person engaged in longshoring (sic)
      operations, and any harborworker, including a ship repairman,
      shipbuilder and shipbreaker.  It does not exclude other
      employees traditionally covered * * *.

   S. Rep. No. 92-1125, supra, at 16 (emphasis added).

   There is, furthermore, absolutely no hint in the legislative
history of the 1972 amendments that Congress intended to revive the
"maritime-but-local" doctrine by requiring that workers injured on
actual navigable waters demonstrate a "substantial relationship to
navigation or commerce" before becoming eligible for federal benefits.
 To the contrary, Congress in 1972 eliminated the former requirement
that LHWCA coverage be extended only if recovery "may not validly be
provided by State law" (former Section 3(a), 44 Stat. 1426 (previously
codified at 33 U.S.C. (1970 ed.) 903(a)).  Prior to this Court's
unravelling of the "maritime-but-local" doctrine in Davis and Calbeck,
that provision frequently had been cited as limiting federal coverage
on the water to employment possessing a significant, albeit
ill-defined, relationship to navigation and commerce.  See Calbeck v.
Travelers Insurance Co., supra, 370 U.S. at 136 (Stewart, J.,
dissenting).  Far from imposing such a requirement anew, then, the
1972 amendments affirmatively evidence Congress' intent to do away
with the troublesome "maritime-but-local" doctrine and its unpleasant
baggage -- the "navigation or commerce" test.  As this Court noted in
Sun Ship, Inc. v. Pennsylvania, supra, 447 U.S. at 721, "(i)t would be
a tour de force of statutory misinterpretation" to conclude that
congressional amendments that removed phrasing arguably establishing a
navigaiton or commerce test also "manifest(ed) the intent to command
such (a test)."

   Finally, withdrawing LHWCA coverage from workers like Churchill who
are injured on actual navigable waters thwarts one of the primary
congressional objectives behind enactment of the 1972 amendments.  As
noted earlier, one of the fundamental concerns prompting the
amendments was Congress' desire to eliminate strict liability
"seaworthiness" suits by maritime workers against vessel owners.  The
1972 amendments abolished such suits for all "person(s) covered under
this (Act)." 33 U.S.C. 905(b).  If marine construction workers like
Churchill are not covered by the LHWCA, however, they are also freed
from the constraint of 33 U.S.C. 905(b).  Aparicio v. Swan Lake, 643
F.2d 1109, 1116 (5th Cir. 1981).  Since Churchill, at the time of his
injury, was "working on board (a vessel) in navigable waters," he is
almost certainly "entitled to the seaman's traditional and statutory
protections," including the right to a strict liability tort recovery
under the "seaworthiness" doctrine, because he was "doing a seaman's
work and incurring a seaman's hazards." Seas Shipping Co. v. Sieracki,
328 U.S. 85, 99 (1946);  Aparicio v. Swan Lake, supra, 643 F.2d at
1116-1118.  A broad subject area therefore remains for utilization of
the seaworthiness remedy Congress intended to abolish.  S. Rep. No.
92-1125, supra, at 10.  The 1972 amendments should not be construed in
a way that conflicts so sharply with expressed congressional intent.

   Congress did not inadvertently withdraw coverage from some workers
by adding the "maritime employment" requirement to Section 2(3) of the
amended Act, 33 U.S.C. 902(3).  The legislative design to retain the
traditional coverage of the 1927 Act is clearly and forcefully
expressed in the legislative history of both Sections 2(3) and 3(a) of
the amended Act.  Nor was Congress blind to the troubled courtroom
history of the LHWCA.  Instead of mandating that courts undertake a
frustrating and perhaps futile search for "substantial relationships
to navigation or commerce" under the amended Act, Congress removed
language from the Act that had previously been construed to require
such an inquiry.  See Sun Ship, Inc. v. Pennsylvania, supra, 447 U.S.
at 720-721.  This evidence is flatly inconsistent with the court of
appeals' view that the 1972 amendments somehow stripped workers of
pre-existing coverage under the 1927 Act.  "If Congress intended a
result so drastic, it is not unreasonable to expect that it would have
said so expressly." NLRB v. Bell Aerospace Co., 416 U.S. 267, 285 n.13
(1974).  See American Tobacco Co. v. Patterson, No. 80-1199 (Apr. 5,
1982), slip op. 8-9 n.6.

 B. The "maritime employment" requirement of the amended Act does not
incorporate the previously discredited "significant relationship to
navigation or commerce" test

   The Second Circuit has not always demanded a "significant
relationship to navigation or commerce" before finding coverage under
the 1972 amendments for injuries occurring on actual navigable waters.
 In earlier litigation involving the same employer and construction
project involved in the present case, the court concluded that marine
construction workers who were injured on the water and who would have
been covered under the 1972 Act retained their status as "maritime"
employees under the 1972 amendments.  See Fusco v. Perini North River
Associates, 601 F.2d 659 (2d. Cir. 1979) (Fusco I), vacated and
remanded, 444 U.S. 1028, rev'd on remand, 622 F.2d 1111 (1980) (Fusco
II), cert. denied, 449 U.S. 1131 (1981).  /11/ In Fusco I, after
thoroughly analyzing the judicial construction of the LHWCA and the
legislative history of the 1972 amendments, the Second Circuit
concluded that "Congress took it for granted that injuries occurring
upon water were covered and would remain covered.  There was no
indication that Congress considered withdrawing existing coverage or
eligibility" (601 F.2d at 669 (emphasis in original)).  The court thus
rejected the "significant relationship to navigation or commerce"
test, reasoning that when the Senate Committee stated that the amended
Act "does not exclude other employees traditionally covered" (S. Rep.
No. 92-1125, supra, at 16), it obviously meant all employees
previously covered by the Act and not merely those whose work was
traditionally deemed directly related to navigation or commerce.  601
F.2d at 667.

   The analysis of the Fusco I court is sound, and its approach has
been followed by other courts of appeals.  The Fifth Circuit recently
cited the Fusco I opinion and quoted from it at length in finding
LHWCA coverage for a night watchman who fell through an open hatch of
a vessel afloat on navigable waters.  Holcomb v. Robert W. Kirk &
Associates, Inc., 655 F.2d 589, 592-593 (1981), petition for cert.
pending, No. 81-1109.  See also Boundreaux v. American Workover, Inc.,
664 F.2d 463, 467 (5th Cir. 1981), rehearing en banc granted, No.
80-3287 (Jan. 11, 1982).  The Fourth Circuit used similar reasoning in
declaring that a marine construction worker who was injured while
constructing a bridge across the James River was a "maritime employee"
within Section 2(3) of the amended Act.  LeMelle v. B. F. Diamond
Construction Co., No. 81-1559 (4th Cir. Mar. 25, 1982), slip op. 4-5.
The court wrote that it "is not necessary to relate again the tortured
history of employee coverage under the LHWCA except to note that
bridge construction and demolition workers employed over navigable
water were covered prior to the 1972 amendments" (slip op. 5).
Quoting from its earlier opinion in Brown & Root, Inc. v. Joyner, 607
F.2d 1087, 1090 (4th Cir. 1979), cert. denied, 446 U.S. 981 (1980),
the court concluded (slip op. 5):

      (W)e are confident that employment held to be traditionally
      maritime under the former Act has not been stripped of its
      maritime character by the 1972 amendments.

   The Second Circuit, however, unfortunately abandoned this analysis
in Fusco II, supra, 622 F.2d at 1111, and in the present case.  /12/
Instead of considering past judicial experience in the construction of
the LHWCA and the express congressional intent to retain traditional
coverage under the amended Act, the court determined that only
activities bearing "a significant relationship to navigation or to
commerce on navigable water" are "maritime" under Section 2(3) of the
1972 amendments (Pet. App. 2a n.1).  This approach threatens to
frustrate the central purpose of the LHWCA, which was designed to
provide the nation's maritime workers with sure and speedy access to
an effective workers' compensation remedy.  The "navigation or
commerce" test, furthermore, conflicts with the rationale of this
Court's recent opinions construing the amended Act because it
threatens to recreate the "jurisdictional monstrosity" that existed
prior to Davis v. Department of Labor, supra, and Calbeck v. Travelers
Insurance Co., supra.  Finally, denial of LHWCA coverage to employees
who are injured on actual navigable waters creates substantial
practical difficulties in administration of the Act, with various
courts reaching divergent conclusions with regard to virtually
identical factual situations.  The 1972 amendments to the LHWCA are
"remedial (legislation) designed to extend (federal) coverage * * *."
Northeast Marine Terminal Co. v. Caputo, supra, 432 U.S. at 279.  They
should not be construed to reach these anomalous results.

 1. Retaining LHWCA coverage for all injuries to workers occurring
upon actual navigable waters is consistent with the statutory scheme
of the 1972 amendments

   Recent decisions of this Court have established that coverage under
the amended LHWCA hinges on "both the 'situs' of the injury and the
'status' of the injured." Northeast Marine Terminal Co. v. Caputo,
supra, 432 U.S. at 265.  Preservation of LHWCA coverage for workers
injured upon actual navigable waters is entirely consistent with this
statutory scheme, because such workers unquestionably are injured upon
a covered situs while engaged in "maritime employment."

   Marine construction workers, like respondent Churchill, are engaged
in "maritime employment" despite the fact that other land-based
workers may perform similar duties.  Loading and unloading supply
barges and driving large caissons into the bed of a river while
operating from a vessel floating on navigable waters differs in
substantial degree from similar construction activities taking place
solely upon dry land.  Marine construction workers, unlike land-based
workers, are constantly on, over, and surrounded by water.  Their work
is necessarily performed aboard barges, floating rafts, and other
vessels.  The job, furthermore, exposes them to conditions and hazards
that are uniquely maritime:  they must wear life jackets and use other
protective marine equipment;  they usually receive their construction
materials and equipment by barge;  and they must continually adhere to
special procedures, both in the unloading of supplies and materials
and in the construction process itself, in order to deal with the
exigencies of work on the water.  The courts have uniformly held that
non-maritime skills, when applied to a maritime project, are
"maritime" for coverage purposes.  See, e.g., P. C. Pfeiffer Co. v.
Ford, supra, 444 U.S. at 82-83;  Hullinghorst Industries, Inc. v.
Carroll, 650 F.2d 750, 756 (5th Cir. 1981), cert. denied, No. 81-693
(Jan. 11, 1982).  Maritime construction skills applied to a supposedly
non-maritime project -- such as the North River Pollution Control
Project -- are, if anything, even more deserving of that label.  See
LeMelle v. B. F. Diamond Construction Co., supra, slip op. 2, 5-6
("Although bridge demolition and construction is not classically
maritime work under the 'ancient traditions of the sea,' it has long
been merged with such work by the exigencies of modern coastal land
and sea traffic").

   There can be no doubt that a worker injured on actual navigable
waters meets the "situs" requirement of the amended LHWCA.  33 U.S.C.
903(a).  The practical realities of employment afloat navigable waters
should likewise compel the conclusion that such a worker satisfies the
"maritime employment" status provision of Section 2(3) of the Act, 33
U.S.C. 902(3).

 2. The "navigation or commerce" test is not mandated by this Court's
decision in P. C. Pfeiffer Co. v. Ford

   The court of appeals answered the argument that the 1972 amendments
were not intended to remove pre-existing coverage under the LHWCA for
workers injured on actual navigable waters by stating that these
arguments "are precisely those made in Fusco I and rejected in Fusco
II" (Pet. App. 4a).  In Fusco II, supra, 622 F.2d at 1112-1113, the
Second Circuit concluded that the "navigation or commerce" test for
"maritime employment" under Section 2(3) of the Act was mandated by
this Court's decision in P. C. Pfeiffer Co. v. Ford, supra.  The court
reasoned that because "maritime employment" is "an occupational rather
than a geographic concept" (444 U.S. at 79), employment cannot be
deemed "maritime" by virtue of its performance on the water -- it must
possess a significant relationship to navigation or commerce.  The
Ford decision, however, did not create a "navigation or commerce" test
for maritime employment, and nothing in that opinion withdraws from
the category of maritime employees those persons who are injured while
working on actual navigable waters.

   Persons who work upon actual navigable waters are precisely the
kind of employees Congress had in mind when it enacted the LHWCA.
They are the persons who most need the protection of a federal
compensation remedy because their injuries occur upon a situs that,
under Southern Pacific Co. v. Jensen, supra, might not be reached by
state workers' compensation law.  Calbeck v. Travelers Insurance Co.,
supra, 370 U.S. at 125 (LHWCA covers all injuries on navigable waters
to prevent possibility that "some injuries to employees on navigable
waters might not be compensable under any statute").  The claimants in
Ford were not such workers, because their injuries did not occur on
actual navigable waters.  Indeed, the question before the Court in
Ford was whether cargo handlers -- whose work was done entirely on
land -- could be "engaged in maritime employment" and therefore
covered under the Act even if they were not subject to assignment
aboard a vessel in the course of their working day.  The question, in
short, was whether workers could be engaged in maritime employment
even if they never worked on actual navigable waters.  In this
context, the Court emphasized that the phrase "maritime employment" in
Section 2(3) of the Act has an occupational content and does not
incorporate an additional requirement that some portion of the
worker's duties be performed afloat.  444 U.S. at 78-81.  /13/ The
Court therefore held that two marine terminal workers who transferred
cargo between sea and land transportation were engaged in maritime
employment by virtue of the very nature of their work, even though
they were never required to perform any tasks on actual navigable
waters.

   The Second Circuit in Fusco II correctly reasoned that work afloat
is not a necessary precondition to a finding of "maritime employment"
under the amended Act.  But it went too far in concluding that the
location of a person's work is irrelevant to the resolution of the
"maritime employment" issue.  There is no intimation in this Court's
opinion in Ford that a person who works on actual navigable waters
must demonstrate that his work "bear(s) a significant relationship to
navigation or to commerce on navigable waters" (Fusco II, supra, 622
F.2d at 1113) before he will be deemed to be "engaged in maritime
employment" (33 U.S.C. 902(3)).  The Court in Ford had no occasion to
address that issue because it was not germane to the claimants whose
coverage under the Act was then in dispute.

   The very concept of "maritime employment" has an innate
geographical link to navigable waters.  By its nature, the term
"maritime employment," which includes (among others) all
"harborworkers," has both an occupational and a geographical context.
The Court's decision in Ford was not intended to exclude latter in
favor of the former.  /14/ As the Fifth Circuit recently concluded,
"though (Ford) clearly stated that the status requirement 'focuses
upon the nature, not the location, of employment,' 100 S.Ct. at 337,
(Ford) did not forbid a consideration of location to determine whether
an activity is maritime commerce." Pippen v. Shell Oil Corp., 661 F.2d
378, 384 n.9 (1981).  Thus, in Pippen, the Fifth Circuit found
coverage under the LHWCA for a wireline operator working on a vessel
used to drill gas wells.  The court explicity noted that "(t)o reach
this conclusion, of course, we must to some extent look to location.
Whereas onshore drilling and production cannot be considered maritime
commerce, offshore drilling and production can be considered maritime
commerce because of its location." Ibid. (emphasis added).

   This Court's decision in Ford established that in setting the scope
of maritime employment "the crucial factor is the nature of the
activit(ies) to which a worker may be assigned." 444 U.S. at 82.  The
Court did not, however, mandate that the location of those activities
over navigable waters is irrelevant to a determination of their
nature.  And there is perhaps no other factor quite as salient in the
determination of the maritime nature of any activity as the fact that
it actually takes place upon navigable waters.

 3. Adoption of a "navigation or commerce" test would frustrate
Congress' intent to provide a sure and effective compensation remedy
for all injuries sustained on navigable waters

   As discussed above (see pages 15-18, supra), this Court disposed of
the "maritime-but-local" exception to federal coverage under the 1927
Act largely because the vague and uncertain contours of the doctrine
hopelessly muddled the jurisdictional reach of the LHWCA for workers
injured on actual navigable waters.  To ensure that injured workers
had a sure and effective compensation remedy, this Court softened the
jurisdictional boundary between state and federal remedies by
extending federal coverage to all injuries occurring on navigable
waters, regardless of whether a particular employment lacked a
"significant" or "direct" relationship to navigation or commerce and
was therefore within the reach of state law.  The decision below,
however, ignores the lessons of history by seizing upon the old
"navigation or commerce" test utilized under the discredited
"maritime-but-local" doctrine, "thereby resurrecting the
jurisdictional monstrosity that existed before the clarifying opinions
in Davis and Calbeck." Sun Ship, Inc. v. Pennsylvania, supra, 447 U.S.
at 720.  /15/

   The underlying purpose of the LHWCA is to provide maritime workers
with sure, certain access to a compensation remedy.  See Sun Ship,
Inc. v. Pennsylvania, supra, 447 U.S. at 720;  Calbeck v. Travelers
Insurance Co., supra, 370 U.S. at 124;  Davis v. Department of Labor,
supra, 317 U.S. at 254.  The court of appeals' denial of federal
coverage for work afloat unless a worker can show a "significant
relationship to navigation or commerce" negates that central mission
of the Act by creating two discrete jurisdictional spheres for
injuries occurring upon actual navigable waters.  If a particular
employment on the water lacks a significant relationship to navigation
or commerce, it is labelled "not maritime" and placed within the
exclusive jurisdiction of state workers' compensation remedies.  If,
on the other hand, the employment has such a relationship, it falls
within the federal domain -- and at some point may not, because of
Southern Pacific Co. v. Jensen, supra, 244 U.S. at 216, be reached by
state workers' compensation remedies.  /16/ Thus, under the court of
appeals' approach, workers injured on actual navigable waters are
faced with a choice between two discrete remedies, state or federal,
and should they stumble in their selection the "price of error (is)
unnecessary expense and possible foreclosures from the proper forum by
statute of limitations." Sun Ship, Inc. v. Pennsylvania, supra, 447
U.S. at 718, citing Davis v. Department of Labor, supra, 317 U.S. at
254.

   Workers injured on land do not face the same draconian choice
confronting workers afloat.  Following this Court's decision in Sun
Ship, Inc. v. Pennsylvania, supra, 447 U.S. at 722, all injuries
occurring upon the newly enlarged situs of the 1972 Act landward of
the Jensen line are presumptively covered by state workers'
compensation remedies.  /17/ Thus, a land-based worker does not face
an "either/or" choice:  he is assured of a state remedy and can obtain
supplemental federal coverage upon a proper showing of "maritime
employment."

   The "horns of the jurisdictional dilemma" (Davis v. Department of
Labor, supra, 317 U.S. at 255) created by the court of appeals'
approach therefore press exclusively on workers injured upon actual
navigable waters -- the group of workers the LHWCA originally was
enacted to benefit.  This Court should not construe the 1972
amendments, which were specifically designed by Congress to extend
rather than to withdraw federal coverage, as mandating such an
implausible and inequitable result.  The 1972 Act is remedial
legislation, and its "maritime employment requirement" 'must be
liberally construed in conformance with its purpose, and in a way
which avoids harsh and incongruous results.'" Northeast Marine
Terminal Co. v. Caputo, supra, 432 U.S. at 268, quoting Voris v.
Eikel, 346 U.S. 328, 333 (1953).

   Whatever the scope of "maritime employment" when work takes place
entirely upon land, the term historically has been construed to
include all work performed upon actual navigable waters.  See, e.g.,
Pennsylvania R.R. v. O'Rourke, supra, 344 U.S. at 339-340 (railroad
work is "maritime" when done on navigable waters);  Sultan Ry. &
Timber Co. v. Department of Labor, 277 U.S. 135, 137 (1928) (logging
work is "maritime," although also local in character, when it is done
on navigable waters).  There is every reason to retain this classical
construction of "maritime employment" under the 1972 amendments for
injuries occurring on actual navigable waters.  This construction is
faithful to the express congressional intent to retain coverage under
the amendments for workers that were "traditionally covered" (S. Rep.
No. 92-1125, supra, at 16) and accords with the historic and common
sense meaning of "maritime employment." See generally G. Gilmore & C.
Black, The Law of Admiralty 428-430 (2d ed. 1975);  1A Benedict on
Admiralty 517 (7th ed. 1973) (quoted in Fusco I, supra, 601 F.2d at
663 n.3);  Watson, Broadened Coverage Under the LHWCA, 33 La. L. Rev.
683, 694 (1973).  Perhaps most important, this approach avoids the
hair-splitting distinctions regarding whether a particular activity
has a "significant" relationship to navigation or commerce that
proliferated under the "maritime-but-local" doctrine.  See, e.g.,
Calbeck v. Travelers Insurance Co., supra, 370 U.S. at 119, 124-125.
See also G. Gilmore & C. Black, The Law of Admiralty, supra, at 430.

   The "navigation or commerce" test for "maritime employment,"
moreover, is not a principled and rational means of limiting LHWCA
coverage to workers who are "truly" maritime.  Under the court of
appeals' approach, a court resolving a LHWCA coverage question does
not look to the conditions of employment or the maritime hazards
confronting, for example, a marine construction worker.  Rather, the
court looks to the ultimate use of purpose of the facility under
construction to determine whether it -- not the worker or his
activities -- possesses some relationship to traditional maritime
concepts.  This is hardly a logical method of testing for coverage
under the Act.

   Under the court of appeals' analysis, marine construction workers
presumably are covered when building a pier, wharf, or other facility
viewed as having some "direct relationship to navigation or commerce.
Workers like Churchill, however, who are injured while building a
water pollution control project, are denied coverage -- even though
they are exposed to the same conditions and hazards of marine
employment as their more "directly connected" colleagues.  This
reasoning leads to the same irrational, doctrinaire results that
prevailed under the "maritime-but-local" rule, when workers building
new ships were accorded state workers' compensation benefits while
workers repairing old ships were denied them.  See Grant Smith-Porter
Ship Co. v. Rohde, 257 U.S. 469 (1922).  /18/ The LHWCA was designed
by Congress to provide a workers' compensation remedy for all injuries
"when Jensen might have seemed to preclude state compensation."
Calbeck v. Travelers Insurance Co., supra, 370 U.S. at 120-121.  The
Act was not designed as a general aid to navigation and commerce.  It
therefore makes little sense to restrict the coverage of the Act
solely to employment bearing a substantial relationship to those
activities, in derogation of the fundamental congressional purpose to
extend a "uniform compensation statute" to "hardworking men, engaged
in a somewhat hazardous employment" upon navigable waters.  S. Rep.
No. 973, 69th Cong., 1st Sess. 16 (1926), quoted in Calbeck v.
Traveler's Insurance Co., supra, 370 U.S. at 121.

   Rather than become embroiled in formalistic inquiries as to whether
a particular activity on the water is more or less related to maritime
commerce, this Court should embrace the logical and realistic view
that employment on the water is by definition "maritime employment."
The ultimate use of a facility under construction on navigable waters
has no bearing on the basic maritime nature of the construction
activities themselves.  /19/ The original 1927 Act was "designed to
ensure that a compensation remedy existed for all injuries sustained
by employees on navigable waters" (Calbeck v. Travelers Insurance Co.,
supra, 370 U.S. at 124), and the 1972 amendments do not retreat from
this fundamental purpose of the Act.  A holding that workers injured
upon actual navigable waters are necessarily engaged in "maritime
employment" is essential "to avoid uncertainty as to the source, state
or federal, of that remedy." Ibid.

   This Court's unwillingness in Sun Ship to impose a regime of
mutually exclusive federal and state jurisdiction over land-based
injuries should be equally dispositive of the present litigation.  To
paraphrase the Court's decision in Sun Ship, the jurisdictional
dilemma "that results when employees must claim relief under one of
two mutually exclusive compensation schemes is as acute when the
jurisdictional boundary between schemes is (drawn between two maritime
spheres), as when the line is (fixed upon land)." 447 U.S. at 720.
The decisions in Davis and Calbeck, which were explicitly reaffirmed
in Sun Ship inasmuch as Congress had expressed "no intimation of
intent to overrule" them (447 U.S. at 722), settled once and for all
that federal coverage under the LHWCA extends to all injuries
occurring on actual navigable waters, regardless of whether a
particular employment lacks a significant relationship to navigation
and commerce and is therefore also within the reach of state workers'
compensation laws.  The 1972 amendments to the LHWCA should not be
construed so as to revive the problematic "maritime-but-local" rule
that wrought jurisdictional havoc under the 1927 Act.  Here, as in Sun
Ship, Inc. v. Pennsylvania, supra, 447 U.S. at 725-726, an
"exclusivity rule" that would prohibit concurrent federal and state
jurisdiction any time state coverage can be constitutionally extended
to injuries on the water

      would thrust employees into the same jurisdictional peril from
      which they were rescued by Davis and Calbeck v. Travelers
      Insurance Co.  (Citations and footnote omitted.) The legislative
      policy animating the LHWCA's landward shift was remedial;  the
      amendment's framers acted out of solicitude for the workers.
      (Citations omitted.) To adopt (the exclusivity rule), then,
      would blunt the thrust of the 1972 amendments, and frustrate
      Congress' intent to aid injured maritime laborers.

 4. Denial of LHWCA coverage to some workers injured on actual
navigable waters would result in unacceptable difficulty in
administering the LHWCA

   This Court finally rejected the first incarnation of the
"navigation or commerce" test in Davis and Calbeck largely because,
after years of litigation, the area of "local concern" with no direct
relationship to navigation or commerce remained "undefined and
undefinable." Davis v. Department of Labor, supra, 317 U.S. at 253.
The court of appeals' reincarnation of the "navigation or commerce"
test under the 1972 amendments presents the same debilitating
ambiguity.  The amorphous and elastic nature of the test, if it is
approved by this Court, will create substantial uncertainty and
difficulty in administering the LHWCA and will inevitably result in a
large increase in generally unproductive litigation.  Attempts by
appellate courts to state the outer limits of the "navigation or
commerce" test, moreover, will almost certainly be doomed to failure
because, as this Court has already noted, "(t)here has never been any
method of staking (those limits) out except in litigation in
particular cases." Calbeck v. Travelers Insurance Co., supra, 379 U.S.
at 125.

   The disparity of results possible under the "navigation or
commerce" test has already led to numerous conflicts between and
within the federal courts and the administrative tribunals of the
Department of Labor.  For example, the Fifth Circuit has found
coverage under the "navigation or commerce" test for a worker
performing a job virtually identical to that of respondent Churchill.
In Gilliam v. Wiley N. Jackson Co., 659 F.2d 54 (5th Cir. 1981),
petition for cert. pending, No. 81-1039, a worker on a bridge
construction project was injured while standing on a supply barge
supervising the transfer of piling from the barge onto the shore.  The
court found coverage because the claimant was unloading cargo (the
pilings) from a vessel.  This, the court said, was longshore work and
"it follows a fortiori that (the) work had a realistically significant
relationship to maritime activities involving navigation and
commerce." Id. at 58.  The court below, however, denied coverage to
respondent Churchill, even though he also was injured on a barge while
unloading caissons from a supply vessel.  /20/

   Holcomb v. Robert W. Kirk & Associates, Inc., supra, manifests
similar confusion.  There, the Benefits Review Board applied the
"navigation or commerce" test to deny coverage to a vessel watchman,
11 B.R.B.S. 835 (1980), but the Fifth Circuit reversed, using the same
test.  Holcomb, moreover, dramatically illustrates the "jurisdictional
peril" (Sun Ship, Inc. v. Pennsylvania, supra, 447 U.S. at 725) posed
by the "navigation or commerce" test.  The injured employee in Holcomb
first pursued a claim for workers' compensation benefits under Florida
law, which was denied by state compensation authorities on the ground
that the injury fell within the coverage of the federal Act.  655 F.2d
at 590.  His subsequent claim under the LHWCA was in turn denied by an
ALJ and the Benefits Review Board on the ground that his employment
did not meet the "navigation or commerce" test.  Only the Fifth
Circuit's willingness to find coverage under the "navigation or
commerce" test for this particular injury on actual navigable waters
prevented Holcomb from being denied both state and federal
compensation remedies.

   Disparate results under the "navigation or commerce" test have
arisen not only among different courts, but also in connection with
the same construction project -- and even in cases decided by the same
judge.  The Benefits Review Board and Second Circuit recently
distinguished the decision below and found coverage for a marine
construction worker injured on the sewage treatment plant project
involved here.  Matson v. Perini North River Associates, supra.  These
results followed because, unlike Churchill (who was working on the
sewage treatment plant's substructure), the worker in Matson was
working on a dock that would be used to load vessels with processed
sludge.  /21/ The Chief Judge of the Benefits Review Board, who
authored the opinion in which the Board first adopted the "navigation
or commerce" test, /22/ has also experienced difficulty reaching
consistent results with identical factual situations under the
"navigation or commerce" test.  Although the judge joined in the
decision denying coverage to the watchman in Holcomb v. Robert W. Kirk
& Associates, Inc., supra, 11 B.R.B.S. at 841, he had earlier found
coverage for a similar worker because "it has been established for
many years that a watchman aboard a vessel is a maritime employee."
McGrath v. E.J. Ring Detective Agency, Inc., No. 74-LHCA-245 (Oct. 4,
1974), slip op. 6.  /23/

   In sum, the "jurisdictional monstrosity that existed before * * *
Davis and Calbeck" has rematerialized.  Sun Ship, Inc. v.
Pennsylvania, supra, 447 U.S. at 720.  The decisions of the courts of
appeals and the Benefits Review Board that attempt to apply the
"navigation or commerce" test again reflect the confusion and
uncertainty originally documented in Davis v. Department of Labor,
supra, 317 U.S. at 253 & n.2.  Unless the teachings of Davis and
Calbeck are reaffirmed and the federal Act is held to encompass all
work-related injuries occurring on actual navigable waters, the
"navigation or commerce" test will continue to cause an overabundance
of LHWCA coverage litigation.  Coverage will once again have to be
determined on a case by case basis.  Calbeck v. Travelers Insurance
Co., supra, 370 U.S. at 126.

   The Court should reject these unpalatable consequences.  The 1972
amendments to the LHWCA are remedial and should be liberally
construed.  Northeast Marine Terminal Co. v. Caputo, supra, 432 U.S.
at 268.  The "navigation or commerce" test should not be applied so as
to withdraw LHWCA coverage of injuries occurring on actual navigable
waters.  As the Court said of the "point of rest" theory rejected in
Caputo (id. at 278-279):  "A theory that nowhere appears in the Act,
that was never mentioned by Congress during the legislative process,
that does not comport with Congress' intent, and that restricts the
coverage of a remedial Act designed to extend coverage" may not be
used to deny recovery under the LHWCA.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   KENNETH S. GELLER

      Deputy Solicitor General

   RICHARD G. WILKINS

      Assistant to the Solicitor General

   T. TIMOTHY RYAN, JR.

      Solicitor of Labor

   DONALD S. SHIRE

      Associate Solicitor

   KERRY L. ADAMS

      Counsel for Appellate Litigation

   MARK C. WALTERS

   JOSHUA T. GILLELAN II

      Attorneys Department of Labor

   MAY 1982

   /1/ This description of the project was adopted by the court below
(Pet. App. 3a & n.2).

   /2/ The ALJ similarly concluded that Churchill was not a
"harborworker," one of the specifically enumerated categories of
maritime employees listed in Section 2(3), because of the nature of
the facility being constructed.  He reasoned that Churchill "was not
building a dock, pier, wharf, or any other type of harbor facility.
He was building a foundation for a sewage disposal plant which
happened to extend over navigable water" (Pet. App. 31a-32a).

   /3/ See pages 24-26, infra.

   /4/ While admitting that "the question is certainly not free from
doubt" (Pet. App. 6a), the court of appeals concluded that this
Court's rationale in Sun Ship did not require a reformulation of the
standard for coverage adopted in the Fusco litigation (id. at 4a-6a).

   /5/ Churchill cannot be viewed as a Jones Act seaman -- a "master
or member of a crew" excluded from LHWCA coverage by Sections 2(3) and
3(a)(1) of the Act, 33 U.S.C. 902(3) and 903(a)(1) -- because he
lacked any permanent connection with either the crane barge aboard
which his injury occurred or the supply barge from which caissons were
being unloaded.

   /6/ This early history of the federal law is set forth in Calbeck
v. Travelers Insurance Co., 370 U.S. 114 (1962).

   /7/ See, e.g., Sultan Ry. & Timber Co. v. Department of Labor, 277
U.S. 135, 137 (1928);  Millers' Indemnity Underwriters v. Braud, 270
U.S. 59, 65 (1926);  Robins Dry Dock & Repair Co. v. Dahl, 266 U.S.
449, 457 (1925).  See also 4 A. Larson, The Law of Workmen's
Compensation Section 89.22 (1981) (and cases cited therein).

   /8/ Marine construction workers like respondent Churchill, in
particular, were covered as long as they were injured on navigable
waters.  This was true regardless of whether the project under
construction was intended to aid navigation or commerce on navigable
waters.  Compare Travelers Insurance Co. v. Branham, 136 F.2d 873 (4th
Cir. 1943) (labor foreman building a dry dock), with Hardway
Contracting Co. v. O'Keeffe, 414 F.2d 657 (5th Cir. 1968) (laborer
building a bridge).  See also Davis v. Department of Labor 317 U.S.
249 (1942) (concurrent state and federal coverage for a construction
worker dismantling an abandoned bridge).

   /9/ Pennsylvania R.R. v. O'Rourke, supra, 344 U.S. at 339-340, and
cases cited therein, make it clear that under the 1927 Act workers
injured on actual navigable waters were engaged in "maritime
employment" even when their jobs were the type typically performed on
land.  In O'Rourke, for example, the Court concluded that a railroad
brakeman injured on a car float operation was covered under the Act.
The Court's implicit assumption that the brakeman supplied the
"maritime employment" nexus necessary to impose liability on the
railroad as an "employer" under 33 U.S.C. 902(4) was strongly
challenged by the dissent, which claimed that there was "but one
question" in the case -- "whether (the brakeman) was engaged in
'maritime employment' at the time of his injury." 344 U.S. at 342
(Minton, J., dissenting).  The majority, however, disregarded the
dissent's invitation to look to the "nature of the employment" (344
U.S. at 343) to revoke the coverage of a worker injured on actual
navigable waters.

   /10/ Such an assumption is not inconsistent with the fact that
coverage under the amended Act hinges on "both the 'situs' of the
injury and the 'status' of the injured." Northeast Marine Terminal Co.
v. Caputo, supra, 432 U.S. at 265.  A worker, like Churchill, who is
injured on actual navigable waters is perforce engaged in maritime
employment at the time of injury.  Churchill's employment, for
example, required the use of barges, float stages, life jackets, and
special procedures for construction on water, and exposed him to
conditions of employment that were uniquely maritime.  See discussion
at pages 27-28, infra.

   /11/ The Second Circuit concluded that both claimants in Fusco II
had been injured on the water.  601 F.2d at 663.  The record, however,
failed to establish definitively that they were injured on actual
navigable waters rather than on construction structures already
permanently affixed to land.  See 80-639 and 80-651 Brief for Federal
Respondent in Opposition at 18.

   /12/ This Court vacated and remanded both Fusco I and Walter
Tantzen, Inc. v. Shaughnessy, 601 F.2d 670 (2d Cir. 1979), for
reconsideration in light of P. C. Pfeiffer Co. v. Ford, supra.  444
U.S. 1028;  446 U.S. 905.  The court of appeals ruled in Fusco I that
"any person whose principal duties are performed on navigable waters
as that term was understood before 1972" remained covered under the
amendments.  601 F.2d at 669.  In Shaughnessy, however, the Second
Circuit stated that only those persons whose principal duties were
performed on actual navigable waters were covered by the 1972 Act.
The Shaughnessy court plainly went too far in concluding that maritime
employment requires some presence on actual navigable waters, but the
Second Circuit's subsequent withdrawal in Fusco II from the
proposition that maritime employment necessarily includes employment
that is performed on the water is also in error.

   /13/ The argument advanced by the employer in Ford was that "the
1972 Act covers only workers who are working or who may be assigned to
work over the water itself." 444 U.S. at 77 (emphasis added).  This
construction of "maritime employment" would have resulted in a
geographic limitation narrower than the one contained in the Act's
situs provision, 33 U.S.C. 903(a), and it was therefore rejected by
the Court.  444 U.S. at 78.  The mere inclusion of employment on the
water within the category of "maritime employment," however, does not
create a limitaion on the Act's coverage narrower than that contained
in 33 U.S.C. 903(a), but rather furthers the remedial purposes of the
1972 amendments.  See Northeast Marine Terminal Co. v. Caputo, supra,
432 U.S. at 268 (Act is to be liberally construed with "an expansive
view of (its) extended coverage").

   /14/ The Ford opinion itself made indirect use of the fact that the
activities in question in that case took place alongside navigable
waters.  The Court noted that both claimants were engaged in
"transferring goods between ship and land transportation." 444 U.S. at
81.

   /15/ The "significant relationship to navigation or commerce" test
adopted by the court below was first used under the amended Act by the
Ninth Circuit in Weyerhaeuser Co. v. Gilmore, 528 F.2d 957 (1975),
cert. denied, 429 U.S. 868 (1976).  See Fusco II, supra, 622 F.2d at
1113.  In determining whether the amended Act extended coverage to a
worker injured while sorting logs on actual navigable waters, the
Ninth Circuit in Gilmore declined to look to Calbeck and other
pre-1972 cases in interpreting "maritime employment." The court,
instead, chose to "relegate those decisions to limbo because * * * the
1972 amendments radically changed the basis" of federal coverage.  528
F.2d at 960.  The Ninth Circuit therefore denied coverage to a worker
who would have been covered under this Court's decisions in Davis v.
Department of Labor, supra, and Calbeck v. Travelers Insurance Co.,
supra, because his work lacked a "significant relationship to
navigation or commerce."

   As sole authority for its use of the "navigation or commerce" test,
the Ninth Circuit cited (528 F.2d at 961) Executive Jet Aviation, Inc.
v. City of Cleveland, 609 U.S. 249 (1972).  Executive Jet, however, is
totally inapposite to claims under the LHWCA.  1A Benedict on
Admirality Section 17, at 2-6 n.6 (7th ed. 1981).  That case held that
federal admiralty jurisdiction did not extend to tort claims arising
from a crash of an airplane into navigable waters on a flight that
would have been almost entirely over land, because there was no
significant relationship to traditional maritime activity involving
navigation and commerce.  409 U.S. at 272.  As the Third Circuit has
observed, "the language of Justice Stewart's opinion (in Executive
Jet) was strictly limited to accidents involving aircraft * * *."
Edynak v. Atlantic Shipping Inc., 562 F.2d 215, 220 (1977), cert.
denied, 434 U.S. 1034 (1978).  See 409 U.S. at 265, 267-268, 271-272,
274.  The Court emphasized that the fact that the plane crashed into
navigable waters was "wholly fortuitous." 409 U.S. at 266.  Moreover,
the Court carefully noted that its decision was reached "in the
absence of legislation to the contrary" and that any applicable
federal statute establishing a contrary principle would control.  409
U.S. at 274 & n.26.

   Marine construction workers, of course, are not "fortuitously"
located on the water, but are required by the nature of their jobs to
work on the water.  The LHWCA, furthermore, is applicable federal law
that controls the resolution of this case.  The question here is one
of statutory construction:  what did Congress intend by the term
"maritime employment"?  The history of the Act, discussed above,
reveals that the term is not limited to matters deemed to have some
direct relationship to navigation or commerce.  Finally, the concern
that the Court expressed in Executive Jet for state authority, which
is generally displaced upon appliction of admirality jurisdiction, has
no relevance here.  See 409 U.S. at 272-273.  Coverage under the LHWCA
is not exclusive of state law, but rather is concurrent and
supplemental to the constitutional reach of local workers'
compensation law.  See Sun Ship, Inc. v. Pennsylvania, supra, 447 U.S.
at 722.

   /16/ The Jensen decision retains vitality, and it is clear that at
some point federal authority over maritime work becomes exclusive.
Askew v. American Waterways Operators, 411 U.S. 325, 344 (1973);  Hahn
v. Ross Island Sand & Gravel Co., 358 U.S. 272, 273 (1959).

   /17/ In Sun Ship, Inc. v. Pennsylvania, supra, this Court endorsed
the continuing validity of the Davis and Calbeck decisions and
specifically found concurrent state and federal jurisdiction over
land-based injuries occurring on the newly enlarged situs of the
amended Act.  The Court rejected the claim that the 1972 amendments
displaced state jurisdiction of land-based injuries, because a
mutually exclusive regime of federal and state jurisdiction over land
would present the same "jurisdictional dilemma" that was found to be
unacceptable over water under the 1927 Act.  447 U.S. at 720.  Absent
legislative history to "suggest a congressional decision to exclude
state laws from the terrain newly occupied by the post-1972
Longshoremen's Act" (id. at 721), this Court declined to revert to
"two mutually exclusive remedial systems" that would "'defeat the
purpose of the federal act'" by depriving workers of "'sure and
certain relief'" (id. at 720, quoting Davis v. Department of Labor,
supra, 317 U.S. at 254).

   /18/ Indeed, the "navigation or commerce" test has led to differing
results in LHWCA claims arising from the same construction project
involved in this case.  The Benefits Review Board and the Second
Circuit found coverage under the amended Act for a worker who was
injured while building a dock at the North River Pollution Control
Project.  Matson v. Perini North River Associates, 9 B.R.B.S. 967
(1979), aff'd mem., 661 F.2d 910 (2d Cir. 1981).  Since the dock would
be used to load processed sludge aboard vessels for disposal at sea,
this construction worker, unlike respondent Churchill, was held to be
engaged in maritime commerce.

   /19/ Inquiries into the ultimate use of a facility are arguably
appropriate only when considering whether shoreside construction
workers are covered by the Act.  Such workers are always at least one
step removed from the sea, but may nonetheless be covered as
"harborworkers" if their work is linked to the sea by virtue of the
intended use of the facility under construction.  33 U.S.C. 902(3).
See Hullinghorst Industries, Inc. v. Carroll, 650 F.2d 750 (5th Cir.
1981), cert. denied, No. 81-693 (Jan. 11, 1982), and authorities cited
therein.

   /20/ The Director argued below, in part, that Churchill was covered
because his duties included the unloading of caissons and other
materials from a supply barge.  Although the Second Circuit did not
specifically address this issue, it rejected a similar argument in
Fusco II:  "Longshoremen do not unload barges used in connection with
(marine) construction." 622 F.2d at 1113.  See also Pet. App. 4a.

   /21/ Each of the Board's three members filed a separate opinion:
one found coverage under the "navigation or commerce" test, one
concurred on the basis that all marine construction workers are
covered, and one would have denied coverage under the "navigation or
commerce" test.  9 B.R.B.S. 967 (1979).  The Second Circuit summarily
affirmed.  661 F.2d 910 (1981).

   /22/ Sedmak v. Perini North River Associates, 9 B.R.B.S. 378
(1978), aff'd sub nom. Fusco v. Perini North River Associates, supra.

   /23/ In another case predating the "navigation or commerce" test,
involving a commercial diver being trained to make underwater
inspections of various structures, the same judge wrote:

      It would be an absurdity, without equal, to find that an
      engineer performing a highly specialized function as a marine
      diver, which required him to descend 30 to 40 feet beneath the
      navigable waters of the United States, is not maritime in
      nature.

   Sharp v. Pacific Gas & Electric Co., 2 B.R.B.S. (ALJ) 25, 32
(1975), aff'd, 2 B.R.B.S. 381 (1975).  Nevertheless, as Chief Judge of
the Benefits Review Board, the judge subsequently applied the
"navigation or commerce" test to the work of another commercial diver
working on an underwater sewer pipeline and held that "claimant's work
as a commercial diver constructing a sewage pipeline did not have a
realistically significant relationship to maritime activities
involving navigation and commerce over navigable waters." Brown v.
Hydro-Dredge Corp., 13 B.R.B.S. 788, 791 (1981) (footnote omitted).