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

   The Solicitor General, on behalf of the Director, Office of
Workers' Compensation Programs, United States Department of Labor,
petitions for a writ of certiorari to review the judgment of the
United States Court of Appeals for the Second Circuit in this case.

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

                       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
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C
   Appendix D

                            OPINIONS BELOW

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

                             JURISDICTION

   The judgment of the court of appeals (App. B, infra, 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 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 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 under 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 (App. A, infra, 3a).
 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 (App. D, infra, 30a).
The construction contract required Perini to "place 2,300 hollow
circular pipes, called caissons, in navigable waters down to imbedded
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), vacated and
remanded, 444 U.S. 1028, rev'd on remand, 622 F.2d 1111 (1980), cert.
denied, 449 U.S. 1131 (1981).  /1/ Employees on the project worked
from barges (T1 28, 29;  T2 124) /2/ and float stages (T2 116, 117) 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 (App. A, infra, 3a).
On this particular project, Churchill was in charge of all work
performed on one of the crane barges used to set caissons in position
for driving into the river bed and to load and unload construction
materials from supply barges (App. C, infra, 11a-12a, 14a-15a;  T1
27-29;  T2 120).  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 (App. D, infra, 30a;  T1
32-34).  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 (App.
A, infra, 3a;  T1 34-36), resulting in injuries to his left leg,
thumb, and head (App. D, infra, 30a).

   2. Churchill filed a claim for compensation under the
Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C.
901 et seq.  Respondent Perini denied that Churchill was covered under
the Act, and the case was referred to an administrative law judge for
a formal hearing on the coverage issue, pursuant to Section 19 of the
Act, 33 U.S.C. (& Supp. III) 919.  After an evidentiary hearing, the
ALJ held that Churchill's injury was not covered under the Act.  The
ALJ concluded that Churchill was not "engaged in a maritime
employment" because his job did not have a significant relationship to
navigation and commerce over navigable waters (App. D, infra, 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.

   Churchill and the Director, Office of Workers' Compensation
Programs, appealed to the Benefits Review Board pursuant to Section
21(b)(3) of the Act, 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 (App. C, infra, 11a-16a).
Relying on the Second Circuit's second decision in Fusco v. Perini
North River Associates, 622 F.2d 1111 (1980), /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 over navigable water are not
engaged in "maritime employment" (App. C, infra, 13a).  /4/The Board
also rejected the contention that Churchill's duties, involving
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) (App. C, infra, 14a-15a).

   Churchill sought review of the Board's decision in the court of
appeals pursuant to Section 21(c) of the Act, 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.
Notwithstanding the fact that Churchill was injured while unloading a
barge upon actual navigable waters, the court concluded that his
employment was not "maritime" within the meaning of Section 2(3) of
the Act because it lacked a "significant relationship to navigation or
to commerce on navigable waters" (App. A, infra, 2a n.1).

                   REASONS FOR GRANTING THE PETITION

   This case presents a significant unresolved question under the
Longshoremen's and Harbor Workers' Compensation Act, as amended in
1972.  The court of appeals has held that a marine construction worker
who was injured while performing his regular duties over actual
navigable waters was not "engaged in maritime employment" within the
meaning of the LHWCA.  In so holding, the court has denied coverage to
a worker who unquestionably would have been covered before the 1972
amendments to the Act /5/ -- amendments that were designed by Congress
to extend, not to contract, federal coverage.  Furthermore, the test
used by the court below to determine coverage revives formerly
resolved uncertainty regarding application of the Act to injuries
received on actual navigable waters and creates substantial
difficulties in administration of the Act, particularly in marine
construction coverage cases.  This decision warrants review by this
Court.

   1. This case squarely presents an important issue concerning the
1972 amendments to the LHWCA that this Court noted but left
unaddressed in Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249,
265 n.25 (1977):  "whether Congress excluded people who would have
been covered before the 1972 Amendments;  that is, workers who are
injured on navigable waters as previously defined."

   Prior to 1972, courts focused solely on the location of the injury
to determine whether the Act applied.  Former Section 3(a), previously
codified at 33 U.S.C. (1970 ed.) 903(a), provided that compensation
was payable for any "injury occurring upon the navigable waters of the
United States (including any dry dock) * * *." The general rule was
that all injuries sustained on actual navigable waters were covered
under the Act while those incurred on land were not.  /6/ Sun Ship,
Inc. v. Pennsylvania, 447 U.S. 715, 718 (1980), quoting Calbeck v.
Travelers Insurance Co., 370 U.S. 114, 124 (1962) (prior to 1972
"LHWCA comprehended 'all injuries sustained by employees on navigable
waters'").  See also P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 72-73
(1979);  Nacirema Operating Co. v. Johnson, 396 U.S. 212, 218-220
(1969).  Marine construction workers, 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 dry dock), with Hardaway Contracting Co. v. O'Keeffe, 414
F.2d 657 (5th Cir. 1968) (laborer building bridge).

   In 1972, however, Congress moved the coverage of the Act shoreward.
 Northeast Marine Terminal Co. v. Caputo, supra, 432 U.S. at 260.
Under the amended Act, coverage was extended to any "employee" injured
upon new, broadly-defined "navigable waters," which included "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 * * *." Section
3(a), 33 U.S.C. 903(a).  Eligible "employees" were defined as persons
"engaged in maritime employment, including any longshoreman or other
person engaged in longshoring operations, and any harborworker
including a ship repairman, shipbuilder, and shipbreaker * * *."
Section 2(3), 33 U.S.C. 902(3).  Thus, Congress sought to provide
benefits to all workers engaged in maritime employment who receive an
injury on the broadly defined navigable waters.

   The indisputable congressional purpose behind the 1972 amendments
was to expand coverage under the Act "to protect additional workers."
S. Rep. No. 92-1125, 92d Cong., 2d Sess. 1 (1972) (emphasis added).
See P.C. Pfeiffer Co. v. Ford, supra, 444 U.S. at 73;  Northeast
Marine Terminal Co. v. Caputo, supra, 432 U.S. at 251.  The
legislative history of the 1972 amendments clearly demonstrates that
Congress did not intend to exclude from coverage any employees who are
injured on actual navigable waters and who therefore 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 committee
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,
92d Cong., 2d Sess. 10-11 (1972).  The unmistakable assumption of the
committee reports is that the existing coverage of the Act would
remain intact.  /7/ Indeed, in its section-by-section analysis of the
statutory changes, the Senate committee stated (S. Rep. No. 92-1125,
supra, at 16 (emphasis added)):

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

   In holding that Churchill is not eligible for benefits under the
LHWCA, despite the fact that he was injured while working on actual
navigable waters and would have been entitled to federal benefits
prior to 1972, the court of appeals' opinion disregards Congress'
intent to retain coverage for traditionally covered employees and runs
counter to this Court's instruction that the Act be liberally
construed with "an expansive view of (its) extended coverage."
Northeast Marine Terminal Co. v. Caputo, supra, 432 U.S. at 268.

   The decision below, moreover, is inconsistent with the Fifth
Circuit's recent decision in Holcomb v. Robert W. Kirk & Associates,
Inc., 655 F.2d 589 (1981).  While the Second Circuit rejected the
contention that "the 1972 Amendments were not meant to remove
pre-existing coverage" (App. A, infra, 4a), the Fifth Circuit in
Holcomb concluded that "the 1927 statute had coverage provisions which
were not withdrawn by the 1972 amendment." 655 F.2d at 592.  Quoting
from the Second Circuit's first opinion in Fusco v. Perini North River
Associates, supra, 601 F.2d at 666, /8/ the Fifth Circuit stated that,
in enacting the 1972 amendments, "'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.'" 655 F.2d at 593.  The Fifth Circuit
therefore relied on pre-amendment cases to hold that a vessel watchman
injured on actual navigable waters was covered under the amended Act,
emphasizing that coverage was at least in part dependent on the fact
that the watchman was "injured aboard ship." 655 F.2d at 593.  Thus,
the Second and Fifth Circuits have reached conflicting conclusions
regarding whether the amended Act withdraws coverage from injuries
occurring upon actual navigable waters.  This Court should grant
review to resolve this conflict between the two major maritime
jurisdictions.

   2. Review by this Court is particularly appropriate because the
court of appeals' opinion in this case is based upon an erroneous
interpretation of P.C. Pfeiffer Co. v. Ford, supra.  The Second
Circuit in Fusco v. Perini North River Associates, supra, originally
held that workers injured on actual navigable waters are covered under
the Act because Congress in passing the 1972 amendments did not intend
to withdraw coverage from workers previously subject to the Act.  601
F.2d at 669.  After Fusco was remanded for reconsideration in light of
Ford, the court of appeals changed its view and held that "maritime
employment" under Section 2(3) of the amended Act requires a
significant relationship to navigation or to commerce on navigable
waters.  622 F.2d at 1113.  Ford, however, does not support that
proposition, and nothing in this Court's opinion was intended to
withdraw from the category of maritime employees those persons who are
injured while working on actual navigable waters.

   Persons who are injured 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 at a place that,
under Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917), may not be
reached by state workers' compensation laws.  /9/ The claimants in
P.C. Pfeiffer Co. v. Ford, supra, were not such workers.  Their
injuries did not occur on actual navigable waters.  Indeed, the
question before the Court in Ford was whether land-based cargo
handlers 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,"
as used in Section 2(3), has an occupational content and does not
focus exclusively on the locus of a person's workday activities.  444
U.S. at 78-81.  The Court, therefore, held that two marine terminal
workers engaged in the process of transferring cargo between sea and
land transportation were engaged in maritime employment by the very
nature of their work, even if they were never required to perform any
tasks on actual navigable waters.  The Court reached this result in
part because Congress specified in Section 2(3) that the phrase
"person engaged in maritime employment" includes "any longshoreman or
other person engaged in longshoring operations * * *."

   The Court never suggested, however, that the location of a person's
injury is irrelevant to the question whether he is "engaged in
maritime employment" or that a person who is injured on actual
navigable waters is not "engaged in maritime employment" unless his
work "bear(s) a significant relationship to navigation or to commerce
on navigable waters" (Fusco v. Perini North River Associates, supra,
622 F.2d at 1113).  The Court in Ford had no occasion to address such
matters because they were not germane to the claimants whose coverage
under the Act was then in dispute.

   The fact is that the phrase "maritime employment," as used in
Section 2(3), has both an occupational and a geographic content.  The
Court's decision in Ford was not intended to exclude the latter in
favor of the former.  By requiring a "significant relationship to
navigation or to commerce on navigable waters" as a precondition to
coverage under the Act, even for employees who are injured on actual
navigable waters, the court of appeals has adopted a test that in many
instances will re-create the very problem the LHWCA was initially
intended to solve, i.e., the potential unavailability of any
compensation remedy for persons injured on the navigable waters of the
United States.  /10/

   3. The court of appeals' denial of coverage to employees who
regularly perform duties on actual navigable waters will result in
substantial uncertainty and difficulty in administering the LHWCA.
The "significant relationship to navigation or to commerce on
navigable waters" test utilized by the Second Circuit to determine
coverage is highly amorphous and elastic;  indeed, the ambiguity the
test creates for workers seeking compensation for injuries incurred on
actual navigable waters revives a conflict between federal and state
jurisdiction that this Court had laid to rest under the original Act.

   Before enactment of the original LHWCA, the Court had ruled that
state law could apply to "maritime" injuries over navigable waters but
only if the job was a matter of purely "local" concern, i.e., having
no direct relationship to navigation or commerce.  Compare Grant
Smith-Porter Ship Co. v. Rohde, 257 U.S. 469 (1922) (local law could
apply), with Northern Coal & Dock Co. v. Strand, 278 U.S. 142 (1928)
(local law could not apply).  This principle came to be known as the
"maritime but local" doctrine.  After enactment of the LHWCA, a
dispute remained over whether Congress had intended to extend federal
coverage to injuries that were compensable by the states as maritime
but local concerns.  After years of uncertainty for injured workers
who did not know whether to pursue federal or state remedies, this
Court resolved the problem in Calbeck v. Travelers Insurance Co.,
supra.  The Court held that the "maritime but local" doctrine had no
effect on application of the federal statute and hence that the Act
could be applied to all maritime injuries, even if those injuries were
compensable under state statutes because they resulted from work not
directly related to navigation and commerce.  370 U.S. at 124-127.
See also Davis v. Department of Labor, 317 U.S. 249 (1942).  Calbeck
and Davis thus established that, on actual navigable waters, federal
law covered both work directly related to navigation and commerce and
work that was "maritime" but did not have that direct relationship.

   This Court has specifically endorsed the continuing validity of
Calbeck and Davis.  In Sun Ship, Inc. v. Pennsylvania, supra, the
Court ruled that state workers' compensation laws could reach
land-based injuries that were also now covered by the amended federal
statute.  The Court repeatedly relied on Calbeck's holding of
concurrent state and federal jurisdiction over "maritime but local"
injuries in holding that state and federal jurisdiction is concurrent
even over land-based injuries previously left solely to the states.
The Court expressly rejected the notion that Congress intended the
1972 amendments to resurrect the "jurisdictional monstrosity that
existed before the clarifying opinions in Davis and Calbeck." 447 U.S.
at 720.

   The decision below, however, recreates the "jurisdictional
monstrosity" previously discarded.  The jurisdictional linedrawing
between employment on the water that is of exclusively federal concern
and employment on the water that is of only local concern resurrects
the uncertainty that was ultimately resolved under the original Act.
Workers such as Churchill, injured on the water, cannot readily know
whether to pursue state or federal remedies.

   The difficulty of predicting the ultimate resolution of coverage
questions under the "navigation and commerce" test is illustrated by
comparing the result below with a recent Fifth Circuit decision that
applied the test to uphold federal coverage for a worker performing a
job virtually identical to that of the claimant here.  In Gilliam v.
Wiley N. Jackson Co., 659 F.2d 54 (5th Cir. 1981), the claimant,
working on a bridge construction project, was injured while standing
on a supply barge supervising the transfer of pilings from the barge
onto the shore.  The court found coverage because Gilliam 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).  /11/ The Second
Circuit's contrary decision, on essentially the same facts, highlights
the uncertainty now facing workers injured on actual navigable waters
and demonstrates the administrative difficulties inherent in applying
a flexible, ambiguous coverage test to such injuries.  /12/

   The creation and maintenance of this confusion contravenes the
congressional purpose behind the amendments to the LHWCA.  There is no
evidence to suggest that in 1972 Congress intended to exclude workers
injured on actual navigable waters from coverage;  on the contrary, it
was clearly seeking to expand federal coverage.  Review of the court
of appeals' decision in this case is necessary to effectuate that
legislative design.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   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

   LOIS G. WILLIAMS

      Deputy Associate Solicitor

   KERRY L. ADAMS

   MARK C. WALTERS

      Attorneys Department of Labor

   NOVEMBER 1981

   /1/ This description of the project was adopted by the court below
(App. A, infra, 3a).

   /2/ At the September 25, 1978 hearing in this case, the
administrative law judge accepted, in lieu of live testimony, a
transcript of the testimony of the project manager, Charles Edgar,
taken at an April 12, 1978 hearing involving similar issues.
Reference to "T2" are to the transcript of Mr. Edgar's testimony,
while references to "T1" are to the transcript of the hearing in the
instant case.

   /3/ See note 8, infra.

   /4/ Board Member Miller dissented, relying on his extensive dissent
in the Fusco litigation, in which he argued that a job can be
"maritime" without having a direct relationship to navigation or
commerce (App. C, infra, 17a-22a).  Sedmak v. Perini North River
Associates, 9 B.R.B.S. 378 (1978), rev'd sub nom. Fusco v. Perini
North River Associates, 601 F.2d 659 (2d Cir. 1979), vacated and
remanded, 444 U.S. 1028, rev'd on remand, 622 F.2d 1111 (1980), cert.
denied, 449 U.S. 1131 (1981).  He also stated that this Court's
rationale in Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715 (1980),
compelled a finding of coverage (App. C, infra, 22a-28a).

   /5/ This case is therefore materially different from Fusco v.
Perini North River Associates, supra.  Although that case involved the
same employer and construction project, the government opposed the
petitions for certiorari in Fusco because the record there failed to
establish definitively "that (the claimants) would have been covered
under the pre-1972 Act." Brief for Federal Respondent in Opposition,
Nos. 80-639 and 80-651, at 18.

   /6/ If an employee was injured in the course of his employment
while on navigable waters, the courts assumed that his employer
necessarily had an employee engaged in "maritime employment," as
required by Section 2(4) of the Act, 33 U.S.C. 902(4).  The necessary
maritime connection was established even if the particular employment
on the water was the kind of job typically performed on land.  See
Pennsylvania R.R. v. O'Rourke, 344 U.S. 334, 340-342 (1953);  see also
id. at 342-343 (dissenting opinion);  Noguiera v. New York, N.H.&H
.R.R., 281 U.S. 128, 131-132 (1930).

   /7/ 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, 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.

   /8/ In Fusco, the Second Circuit initially held that claimants
working on the same marine construction project involved here were
covered under the Act.  The court ruled 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.  As explained in another case decided the same day,
however, the court believed that only those persons whose principal
duties were performed on actual navigable waters were covered by the
Act.  See Walter Tantzen, Inc. v. Shaughnessy, 601 F.2d 670 (2d Cir.
1979).  Both the Fusco and Walter Tantzen cases were vacated and
remanded by this Court in light of P.C. Pfeiffer Co. v. Ford, supra,
which rejected the argument that the amendments covered only those who
are working or may be assigned to work over actual water.  On remand,
the Second Circuit reversed its position and adopted the "significant
relationship to navigation or to commerce" test in Fusco (622 F.2d at
1113) and found coverage for an injury sustained by a land-based
longshoreman in Walter Tantzen (624 F.2d 5 (1980)).

   /9/ While state law prior to 1972 could apply to injuries over
navigable waters occurring within the "maritime but local" zone, state
workers' compensation remedies could not reach an injury where the
claimant's employment had a direct relationship to navigation or
commerce.  See page 14, infra.

   /10/ Indeed, Holcomb v. Robert W. Kirk & Associates, Inc., supra,
presented just such a bizarre scenario.  Holcomb first pursued a claim
for workmen's compensation benefits under Florida law, which was
denied on the ground that his injury fell within the coverage of the
LHWCA.  655 F.2d at 590.  His subsequent claim under the LHWCA was in
turn denied by the ALJ and the Benefits Review Board on the ground
that his employment did not "have the necessary 'realistically
significant relationship to maritime activities involving navigation
and commerce over navigable water.'" 11 B.R.B.S. 835, 839 (1980).
Only the Fifth Circuit's willingness to find coverage under the
amended Act for this particular injury occurring upon actual navigable
waters prevented Holcomb from being denied both state and federal
compensation remedies.

   /11/ The Director argued below, in part, that Churchill was covered
because his duties included the unloading of caissons and other
material from a supply barge.  Although the Second Circuit did not
specifically address this issue in this case, it rejected a similar
argument on rehearing in Fusco:  "Longshoremen do not unload barges
used in connection with (marine) construction." 622 F.2d at 1113.  See
also App. A, infra, 4a.

   /12/ The quandary facing workers injured on actual navigable waters
over whether to seek state or federal remedies is further illustrated
by cases from the Ninth Circuit.  That court has concluded that a
"pondman" sorting logs and feeding them into a lumber mill was not
covered for an injury incurred while moving about on walkways and logs
floating on a saltwater bay of the Pacific Ocean.  Weyerhaeuser Co. v.
Gilmore, 528 F.2d 957, 961-962 (9th Cir. 1976).  But it has also held
that a pile driver was covered for an injury incurred on a floating
raft because he was constructing an off-shore dock for the unloading
of oil from tankers and barges -- work that was deemed "related to the
traditional maritime activity of facilitating commerce on navigable
waters." Duncanson-Harrelson Co. v. Director, OWCP, 644 F.2d 827, 830
(9th Cir. 1981).  The Benefits Review Board has also used the
"navigation and commerce" test to deny coverage to a number of workers
injured on actual navigable waters who would have been covered prior
to 1972, including a commercial diver constructing underwater sewer
pipelines, Brown v. Hydro-Dredge Corp., 13 B.R.B.S. 788 (1981), and a
dredge deckhand on an airport reef runway construction project, Ramos
v. Universal Dredging Corp., 10 B.R.B.S. 368 (1979), rev'd on other
grounds, 653 F.2d 1353 (9th Cir. 1981).

   Appendix Omitted