Warren E. Burger: We'll hear arguments next in Pfeiffer Company against the Diversion Ford and others. Mr. Vickery, you may proceed whenever you are ready.
E. D. Vickery: Mr. Chief Justice, may it please the Court. These two cases combined for purposes of this hearing bring to the court for a resolution, that question which it did not have to reach in a decision in 1977 and what had commonly been come to known -- to be known among the bar as the Caputo case. In the Caputo case, the court held that an amphibious worker who is subject to being assigned to work both on the dock and on the navigable area -- navigable waters of the United States was a type of worker that Congress intended to cover in order to provide a uniform compensation system for him in the 1972 amendments to the Act. Caputo was such an amphibious worker being subject to assignment either on the dock or on the vessel on the navigable waters in the course of his employment on the date of his accident. Petitioners respectfully submit that it is this navigable water standard on which the court turned in its Caputo opinion. It is founded on historical decisions of this Court, stemming back to the famous case of Southern Pacific versus Jensen. Counsel in this case had drawn the line of demarcation between the two positions very clearly. Simply speaking in extending the Act's jurisdiction to show in 1972 and Congress intend to provide a uniform compensation system for amphibious workers who were covered prior to 1972 for only a part of their work activity, that part which was done on navigable waters, as we respectfully submit, that is all that Congress contended. Or did Congress contend -- intend as a federal respondent asserts to cover all waterfront workers who work on piers, wharf, terminals and other areas adjoining navigable waters. Before this Court in Caputo, the federal respondent contended that it reach only those waterfront workers who were directly involved in the loading or unloading of land transportation. That was their position in reply to our petition for certiorari in this case. In their reply brief here, they had expanded this to include all waterfront workers who may be injured on piers, wharves or other terminal areas that meet the situs test of the 1972 amendments.
Potter Stewart: Mr. Vickery, this case doesn't involve any controversy about situs, does it, but only about status?
E. D. Vickery: Situs is not at issue, Bryant, the cotton header was injured in a warehouse and the vessel would moor outside at the pier alongside this warehouse and Diversion Ford was injured on railroad tracks, it ran out onto the pier in the Port of Beaumont Navigation District, so situs is not an issue.
Potter Stewart: And does exist. I mean --
E. D. Vickery: It does exist in this case. There's no question of situs.
Potter Stewart: This is over the question of status.
E. D. Vickery: Question of status. Situs exist only to the extent that the federal respondent now contends that situs only is enough to also satisfy the status test.
Potter Stewart: Hmm, yes.
E. D. Vickery: But other than that, situs is not involved. Oddly enough we're not too far apart insofar as the factual situations existing in these three cases either. There's not much of a dispute as far as that is concerned but there are very distinct differences in the types of employment that these men were engaged in. First of all, this Court recognized that Caputo was a regular longshoreman or a longshoreman by occupation. That is, he spent a substantial part of his working time in the actual loading or unloading of vessels. Neither Ford nor Bryant spent any substantial period of time in loading or unloading vessels. In fact, Bryant had not engaged in the loading or unloading of cargo from a vessel for approximately five or six years prior to the day of his accident. Ford had participated in the loading and unloading of vessels in the Port of Beaumont on only seven days during the year immediately prior to his injury. Ford was not a longshoreman by occupation. He would be more aptly described as a laborer. He worked approximately seven days as a longshoreman during the year prior to his injury. He worked approximately 35 or 36 days as a warehouseman doing the type of work he was doing here, loading or unloading land transportation. The rest of the time we don't have specific dates but during the rest of the time he also did construction work in the Beaumont area and he also drove a beer truck for a beer distributor. So there is no way to classify either of the two men involved in this case as being longshoreman or as having engaged in loading or unloading of vessels prior to their injury of enough significance to make them longshoreman by occupation. In fact, Ayers Steamship Company for whom Bryant works has no stevedoring operations at all. It never loads or unloads a vessel. It is a steamship agent who assembles cargo for the vessels that it represents in the warehouses. It uses warehouse workers like Bryant to unload the land transportation, to load -- to stow the cargo in the warehouse to await the arrival of the vessel.
Harry A. Blackmun: Do they strip containers?
E. D. Vickery: No, sir.
Harry A. Blackmun: They're not subject to that type of work?
E. D. Vickery: No, sir.
Harry A. Blackmun: Ford is special, he's not subject to that assignment?
E. D. Vickery: The union contract provides that that is deep sea long shore work. Ayers has never stuffed or stripped the container.
Potter Stewart: In your brief, Mr. Vickery you urged the court not to place too much or any emphasis in its test in determining status on whether or not the claimant is a longshoreman, at least as I read your brief.
E. D. Vickery: Yes, sir.
Potter Stewart: Although the statute does make that one of the tests, doesn't it?
E. D. Vickery: Well, I think the statute requires him to be both a longshoreman and at the time of his injury to be engaged in maritime employment. For example --
Potter Stewart: So right, so then being a longshoreman is part of the test or one of the tests, isn't it?
E. D. Vickery: Yes, but if he --
Potter Stewart: Under the statute whether we like it or not?
E. D. Vickery: But let me give you an illustration of why I think you have to consider something other than longshoreman as an occupation. If Caputo had been moonlighting on the date of his accident and have been driving the truck, he would not have been subject to being assigned to work on the navigable waters of the United States.
Potter Stewart: Well, what if he --
E. D. Vickery: He would've been a longshoreman by occupation.
Potter Stewart: What if the collective bargaining agreement was the Teamsters Local, would then that trucking company had said in this case, we're going to call every truck driver a longshoreman and that's your job, longshoreman, just because you might someday want to get the advantage of this federal statute.
E. D. Vickery: Well, I think that's --
Potter Stewart: Does that make him a longshoreman if he's called so and if that's a job classification?
E. D. Vickery: No, sir. I don't think so.
Potter Stewart: -- Hmm?
E. D. Vickery: No, sir. I don't think so.
Potter Stewart: Why does it exist? What is it? What -- in your submission, what is the test?
E. D. Vickery: In my submission, the test is the traditional definition of maritime and along what this Court has given it.
Potter Stewart: But it says -- the statute says including any longshoreman and so what does that mean?
E. D. Vickery: A longshoreman is a man who loads and unloads vessels.
Potter Stewart: On the day he was hurt --
E. D. Vickery: Yes, sir.
Potter Stewart: -- according to the statute?
E. D. Vickery: Yes, sir.
Potter Stewart: Whatever his job description is?
E. D. Vickery: Yes, sir. He is directly involved in the loading or unloading of a vessel, then he could be properly denominated to be a longshoreman.
Potter Stewart: Even though his job description is something else like a laborer or messenger or something else.
E. D. Vickery: Yes, sir. The interchange of the laborers between the warehouseman and the actual loading of the vessels is something --
Warren E. Burger: Who is drafted?
E. D. Vickery: Sir?
Warren E. Burger: What if he is a night watchman who is drafted to do some loading and unloading?
E. D. Vickery: I think if he's involved in a loading or the unloading of the vessel, Congress intended to cover him because I think he is subject to being assigned to work either on the dock or on the vessel and --
Potter Stewart: Oh, that's covered by other persons --
E. D. Vickery: -- he becomes an amphibious worker.
Potter Stewart: That's covered by other person engaged in longshoring operations?
E. D. Vickery: Yes, sir.
Potter Stewart: What I'm -- my question goes to what your understanding is of the statutory meaning of longshoreman. That wasn't clear to me from reading your brief.
E. D. Vickery: Alright. The statutory meaning of a longshoreman is a person who engages in the loading or the unloading of a vessel.
Potter Stewart: Well, then why isn't it tautological in view of the other statutory language person engaged in longshoring operations?
E. D. Vickery: Why did they have to add that?
Potter Stewart: Yes, why isn't -- why is it -- how -- wholly meaningless if that's all it means?
E. D. Vickery: Well, it -- there are other people who engage in longshoring operations beside a longshoreman.
Potter Stewart: You said that's the definition of what a longshoreman is.
E. D. Vickery: Alright. But the -- what the Congress was trying to say Mr. Justice Stewart is reflected by what it said with respect to checkers. Checkers are directly involved in long -- in the loading or unloading of the vessels, are subject to being assigned to work either on the vessel or on the dock and Congress was specifically referring to that. It needed the other persons involved in longshoring operations to identify people like the checkers, to also identify shoreside crane operators who are not longshoreman but they are leased by the terminal facilities, the terminal owners, leased cranes to be used in the loading and discharging of the vessels with an operator. They are not longshoreman by occupation or they are not longshoremen working regularly in the loading or unloading of vessels. I think that that is in referring to it as an occupation, I think you're dealing with a man who spends substantially all of his working time working as a longshoreman in the loading or the unloading of vessels.
Potter Stewart: And is it on the day of the accident, what if he was a longshoreman up until yesterday?
E. D. Vickery: That's why you need --
Potter Stewart: How many are there?
E. D. Vickery: That's why you need the maritime employment.
Potter Stewart: Oh, I know but that's a separate --
E. D. Vickery: Yes, sir.
Potter Stewart: -- that stat -- a separate statutory language.
E. D. Vickery: Yes, sir.
Potter Stewart: It's our duty to try to give meaning to every word of the statute if we can.
E. D. Vickery: And what I'm trying to say to you is and -- because he is a longshoreman today, if he -- he has to be engaged in maritime employment tomorrow just like he does today when he's working as a longshoreman. The fact that he may be a longshoreman by occupation as I am an attorney by occupation but if I drive a taxi cab tomorrow, that wouldn't give me any benefits as an attorney. If he is driving a taxicab down to the dock tomorrow to pick up people in his moonlighting job even though he is a longshoreman by occupation, he is not engaged in maritime employment and even though he is injured on an adjoining area, he would not be covered simply because he is a longshoreman by occupation when he is engaged in at particular occupation. I submit that that's the importance, it's the reason I don't think that you can look at the terminology longshoreman and the statute in isolation. The Powell case from the Ninth Circuit is another good example of the situation if you consider the problems that were arise if you consider the longshoreman by occupation as being the sole test. In Powell, this man had been a longshoreman for a good many years until about seven months prior to his accident. He then quit working as a longshoreman and started working for the grain elevator unloading railroad cars of grain into the grain elevator. As such an employee, he could never be involved in the work of a longshoreman which was done by independent contracting stevedores in the loading and the unloading of a vessel.
Potter Stewart: And what did the Ninth Circuit -- to say?
E. D. Vickery: The Ninth Circuit held that he was no longer a longshoreman. That he had converted his job and he was now strictly an unloader of rail cars at the grain elevator.
Potter Stewart: So he wasn't covered by the statute.
E. D. Vickery: So he was not covered by the statute. And the problem of looking at longshoreman by occupation, Ford poses the question, is he a longshoreman by occupation because he works seven days, if not seven days, how many months, how many weeks to make him a longshoreman by occupation, to make him automatically covered regardless of what job he'd done.
Potter Stewart: Well, whatever the word means, you think he has to be that at the time that he's injured or killed?
E. D. Vickery: Yes, sir.
Potter Stewart: To be covered by the statute?
E. D. Vickery: If you're going to use just the word --
Potter Stewart: I mean if he'd never been a longshoreman, maybe he'd been a electro -- a lawyer --
E. D. Vickery: Right.
Potter Stewart: -- until this morning he was hired as a longshoreman, if he is here -- if he is killed today then he is a longshoreman --
E. D. Vickery: He's a longshoreman. Yes, sir.
Potter Stewart: -- he'd covered by the statute.
Byron R. White: Well, suppose he didnt died a longshoreman wheeled something off a ship and wheeled it right to a truck, wheeled it right to a truck that was going to carry it away and he was helped by Mr. Ford and the truck driver to load the truck and all three got hurt. I suppose the truck driver wouldn't be covered because he isn't engaged in maritime employment or what?
E. D. Vickery: Mr. -- that's -- the legislative history makes it clear that he is not covered.
Byron R. White: Then is it because of what?
E. D. Vickery: Because he is not engaged in maritime employment.
Byron R. White: That he isn't engaged in longshoring operations?
E. D. Vickery: He's not engaged in longshoring operation.
Byron R. White: Well, but this piece of cargo came straight off the ship and is being loaded right on the truck.
E. D. Vickery: Alright. Then what you have there, what you have to look at there is the congressional intent to cover or to provide a uniform compensation system. You've got to look at the maritime employment test.
Byron R. White: So you'd say that the driver --
E. D. Vickery: All have to meet maritime employment test.
Byron R. White: Did the truck driver just isn't engaged in maritime employment, that excludes him, you say?
E. D. Vickery: That's right.
Byron R. White: How about -- how about in this same accident at the same moment, the longshoreman would be -- clearly be covered.
E. D. Vickery: Yes, sir.
Byron R. White: Because he is unloading the ship.
E. D. Vickery: Yes, sir.
Byron R. White: Then he is a longshoreman. And how about Mr. Ford there, he is engaged in -- he always does this. He's on the pier. He's attached to the -- maybe he's hired by the stevedoring company but he isn't a longshoreman. He isn't -- right then he isn't -- he hasn't been unloading a ship, he hasn't been on the ship but would he be covered in that, my example?
E. D. Vickery: I do not think he would covered because he would not meet the maritime employment status test. The maritime employment test is whether or not a person who's subject to being assigned to work on board a vessel and on the dock because --
Byron R. White: Oh, I know but here comes a piece of cargo off the vessel. It never stops, it gets right to the truck, he helps a longshoreman put it on the truck and he's hurt.
E. D. Vickery: He is engaged in longshoring operations at that time. I would have to say that he is engaged in longshoring operations at that time. But it is not enough unless he also meets the maritime employment test and a maritime employment test that this Court has enunciated since Southern Pacific versus Jensen is only that work which is done on navigable waters. That's where the dividing line between maritime employment and non-maritime employment has been drawn by this Court repeatedly.
Potter Stewart: But Mr. Vickery, its not your contention that the injured employee has to be engaged in work on mari -- navigable waters at the time of his injury to be covered --
E. D. Vickery: No, sir.
Potter Stewart: -- at all, isn't it?
E. D. Vickery: No, sir. That's what Congress said. Congress said that we want to cover this man who -- prior to the 1972 amendments was covered only for the work that he did on the ship.
Potter Stewart: Right.
E. D. Vickery: Prior to the 1972 amendments, men who are engaged in maritime employment as this Court have repeatedly defined it were subject to having a compensation remedy determined as Congress said.
Byron R. White: Well, you said -- I thought you said a while ago there wasn't any situs problem in this case?
Warren E. Burger: There isn't.
Byron R. White: And there wouldn't -- why would there have been a situs problem in my example?
E. D. Vickery: There is no situs problem involved in your example Mr. Justice White but in determining maritime employment where the person is working is determinative to that issue. That's what started the whole thing in 1917 when Southern Pacific versus Jensen held maritime employment is on the vessel only and the state compact can apply. In Northern hope, they reaffirmed that. They said handling cargo on the dock is not maritime employment. In 1922 -- in 1927 Congress sought to solve the problem by passing the Longshoremen's Act and they put in a maritime employment requirement. This Court considered a question of what is maritime employment under the Longshoremen's Act Nogueira in 1930 and they expressly held, maritime employment was worked performed on the navigable waters of the United States. That was reaffirmed in O'Rourke versus Pennsylvania Railway Company in 1953. It was a basis of the holding of this Court in 1971 in the Erie Lackawanna case and again in 19 -- in the Cooper Stevedoring against Fritz Kopke case.
Potter Stewart: But your case and some of the other cases were purely situs cases, weren't they? O'Rourke was a -- as I remember a brakeman for the Pennsylvania Railroad?
E. D. Vickery: Yes, sir.
Potter Stewart: That was his job.
E. D. Vickery: That's right.
Potter Stewart: But he was injured on navigable waters and therefore it was held that the FELA was not applicable.
E. D. Vickery: That's right because --
Potter Stewart: And it was a situs case.
E. D. Vickery: Because -- because he was working on navigable waters is --
Potter Stewart: Correct.
E. D. Vickery: This is what made him engaged in maritime employment.
Potter Stewart: Even though he is a railroad brakeman.
E. D. Vickery: Even though he was a railroad brakeman. That's what made the railroad --
Potter Stewart: So it wasn't a status, it was a situs case.
E. D. Vickery: Well, the only person who had to have any stat -- status prior to the 1972 amendments was the employer and the employer had to meet the maritime employment test by showing that it had employees who worked on navigable waters. It -- O'Rourke himself would have satisfied that but the court held that the railroad had other employees who worked on navigable waters, therefore the railroad was --
Potter Stewart: Was an employer --
E. D. Vickery: Was --
Potter Stewart: -- within the meaning of the then statute.
E. D. Vickery: Alright and that required maritime employment.
Potter Stewart: Right.
E. D. Vickery: And that's what I'm saying that's where the court got the definition of maritime employment from the employer definition. Congress used precisely the same words in the 1972 amendment and now requires that both the employer and the employee meet the maritime employment status test.
Potter Stewart: Right. But is it -- the O'Rourke case was the one -- I haven't read it for a long, Justice Reed wrote it, that was a five to four case, wasn't it?
E. D. Vickery: It was a five to four -- I'm sorry I don't recall who wrote it.
Potter Stewart: I think Mr. Justice Reed wrote the opinion.
E. D. Vickery: But it was a five to four decision. That's correct. I'd like to save the rest of my time for rebuttal unless there are further questions.
Warren E. Burger: Very well, Mr. Vickery.
E. D. Vickery: Thank you.
Warren E. Burger: Mr. Bryson.
William C. Bryson: Mr. Chief Justice and may it please the Court. The question in this case is the extent to which the Longshoremen's Act as applied in 1970 as amended in 1972 applies to employees engaged in handling cargo on the waterfront. Now, the position of the Department of Labor is that the Act applies to all waterfront employees who are engaged in the process of transferring cargo between land and water transportation. Now, the petitioners have characterized the department's position as being somewhat broader than that, it is not. The position is that with respect to cargo handling, it is necessary that the employee be engaged in the process of moving cargo between land and sea transportation. Now, the board and the director have reached this position as a matter of construing the statutory term longshoring operations.
Harry A. Blackmun: Would that definition of yours include Mr. Justice White's truck driver in this case?
William C. Bryson: No, it would not Mr. Justice Blackmun and the reason would be --
Harry A. Blackmun: How would he be excluded? Tell me how he would be excluded.
William C. Bryson: Well, there -- essentially the reason is that that truck driver would not be engaged in maritime employment. That truck driver would be engaged in employment. Most of his employment was -- would be looking towards the land. He would engaged in -- most of his conduct, most of his daily conduct in moving cargo between the maritime and -- marine terminal and points inland of that and his job basically would not be a maritime job.
Harry A. Blackmun: Well, you said most of his efforts. So I guess we can all agree to that but in --
William C. Bryson: But --
Harry A. Blackmun: -- in Mr. Justice White's illustration, he was doing something more than that.
William C. Bryson: Exactly, but as this Court pointed out in the Caputo case, the whole thrust of the Act is to look to the nature of employment not the particular act of the employee, he is engaged in at the time.
Potter Stewart: Yes, it is over by both --
Harry A. Blackmun: (Inaudible)
Potter Stewart: Excuse me.
Harry A. Blackmun: Caputo case -- the opinion expressly excluded the truck driver.
William C. Bryson: Exactly.
Harry A. Blackmun: And my question of course is whether your proposed test doesn't include him?
William C. Bryson: No, I think not and the reason being that we focused on the marine terminal worker because this is a person who spends all of his time who as a matter of profession, as a matter of occupation, is someone who is constantly dealing with cargo that has immediately been unloaded from a vessel or is about to be loaded on to a vessel. He is like the harbor worker or like the shipbuilder or like the ship repairer, a person who is there on the marine situs, on the maritime situs is dealing day in and day out with cargo that is immediately to be loaded or immediately unloaded from a vessel. The truck driver comes in once a week or whatever and moves on to land occupation. His occupation is not that that could be fairly be termed maritime employment.
Potter Stewart: And Mr. Bryson, what do you think the phrase maritime employment means?
William C. Bryson: Well, the term of course is not given --
Potter Stewart: Well, it has been defined rather -- it's become almost a term of art in the decisions of this Court, hasn't it?
William C. Bryson: Well, the decisions of the court which counsel referred --
Potter Stewart: And indeed the predecessor statute required the employer to be in the maritime employment in order to be a covered employer. He had to have some of his employees --
William C. Bryson: He had to have some of his --
Potter Stewart: -- in maritime employment and that was given a specific and almost -- became almost a term of art, didn't it?
William C. Bryson: He had some of his employment -- employees --
Potter Stewart: In maritime --
William C. Bryson: -- engaged in -- over navigable waters.
Potter Stewart: Yes.
William C. Bryson: Now, navigable waters has been redefined. Of course, in the 72 Act to include --
Potter Stewart: Yes, but maritime employment hasn't been defined at all, has it?
William C. Bryson: No. Maritime employment has not --
Potter Stewart: -- in the statute?
William C. Bryson: -- been defined.
Potter Stewart: So wouldn't it be the national thing to look at -- to see what that term means in the decisions of the courts?
William C. Bryson: Well, but the problem Mr. Justice Stewart with trying to define maritime employment the way it was used although I think not defined in the old cases. The way it was used to the extent that it was used to suggest that maritime employment was limited to employment which actually occurred over water is that that would not take care of a lot of different kinds of maritime employment there involved in the 1972 amendments --
Potter Stewart: But they are --
William C. Bryson: -- for instance, ship builders.
Potter Stewart: But they are because they're specifically covered by the statute.
William C. Bryson: Well, that's right but the statute says maritime employment and then proceeds to include a number of groups within that concept of maritime employment and the legislative history on that point is quite clear that it means the entire group of specific occupations to be within the notion of maritime employment. If I can read from the section, the section analysis in the Senate Report, it says the amendment amends Section 2 (3) of the Act to define an employee as any person engaged in maritime employment and then it goes on to say the definition specifically includes any longshoreman or other person engaged in longshoring operations and any harbor worker including the ship repairman, shipbuilder and shipbreaker. Now, Congress knew, it was clear in 1972 that there were a number of different types of say, to -- just to take an example, shipbuilders who never set foot on the water, who would never be on the haul of a ship after it was launched. These are people who are spending their time working on land in a maritime situs but who are doing work which is so interrelated to maritime navigation and commerce that Congress saw fit to bring it within the definition of maritime employment. Now, they did not define the term of course and that's why so much trouble has ensued --
Potter Stewart: So that's why we're here.
William C. Bryson: -- in trying to find the statute.
Potter Stewart: What's a shipbreaker?
William C. Bryson: A shipbreaker I believe is someone who is either in the conversion, it's a form of ship repair, that I think it's a form of converting ships from one form to another. But the point is though that there are a number of these individuals who never set foot on land including --
Potter Stewart: You mean --
William C. Bryson: -- excuse me, on sea.
Potter Stewart: Set foot on navigable waters --
William C. Bryson: On navigable waters --
Potter Stewart: If he --
William C. Bryson: -- as it used to be defined. Of course, they spend all their time on navigable waters, that is -- as it is now defined, because it's been defined to include all of these maritime situs areas such as a dock, a pier, a wharf, a building way and so forth. Now, the director and the board have looked at --
William H. Rehnquist: Mr. Bryson, are those two separate entities or one entity for purposes of appellate review, the director and the board?
William C. Bryson: For the purpose -- well, they are clearly two different entities. The director is the delegee of the Secretary of Labor who is charged with administering the Act and appears as a party seeking to -- in this case support the board's order. Now, I'm impressed I didn't understand your question.
William H. Rehnquist: Who -- where is the director authorized to be a party in these proceedings? As I read Section 921 (c) application can be held at the Court of Appeals to set aside an award of the benefits review board and copies are to be served on the board and other parties. I -- I can certainly see why the board would be a party. Why is the director a party?
William C. Bryson: Well, the director is designated to defend the board's orders and I do not know that --
William H. Rehnquist: By whom?
William C. Bryson: I believe in the statute, there is a provision which provide --
William H. Rehnquist: In the statute?
William C. Bryson: In the statute there's a provision which provides that the Secretary of Labor shall assign attorneys to administer the Act and to -- I believe it says to defend the board's orders as well. Now the --
William H. Rehnquist: Why wouldn't the board nonetheless be the party all -- albeit defended by attorneys assigned by the --
William C. Bryson: Well, then it -- and there have been some cases in which the board has been named as a party. Some of the cases is -- it's come to be the fashion to characterize the director as the -- as a party but it could well be the board as in the National Labor Relations Board cases.
William H. Rehnquist: And you feel that's immaterial?
William C. Bryson: Here, because what happened here that -- although there is some dispute in -- as to whether the board has the power -- excuse me, the director has the power to seek review of the board order which is contrary to the director's position. In this case, it was the director's position and the private party's position that was sustained in the Court of Appeals and sustained in the board and so that the director's standing is --
William H. Rehnquist: There was no internal inconsistency?
William C. Bryson: That's right, no not here. There have been cases in which is there is internal inconsistency but not here. In fact, the board and the director from the beginning have taken the same position with respect to the definition of the terms lonshoring operation and maritime employment. By defining those terms to include the entire operation in the marine terminal with respect to cargo handling and --
Potter Stewart: Doesn't that go very far toward a -- as I think was suggested in question a few moments ago by my Brother Blackmun, doesn't that go very far toward eliminating this -- the status requirement in the statute?
William C. Bryson: It doesn't --
Potter Stewart: Assuming the employer is a covered employer could -- because he has other employees who work --
William C. Bryson: Exactly.
Potter Stewart: And then doesn't that go awfully forward toward eliminating the status requirement as to the employee, the claimant?
William C. Bryson: Well, with respect to cargo handlers, it certainly does. In our view, cargo handlers are engaged in longshoring operations and therefore, you don't have to go any farther to determine that that's maritime employment so there is no further status inquiry that has to be made.
Potter Stewart: Alright.
William C. Bryson: Now, the legislative history does point out that certain kinds of employees even though they may be there on the situs are not covered and that would include for instance clerical employees.
Potter Stewart: It's one thing if their employer is not covered, they are not covered.
William C. Bryson: Well, if their employer is -- their employer maybe covered.
Potter Stewart: If he's not in “employer” as defined by the Act?
William C. Bryson: No, he may be an employer and then they still not be covered.
Potter Stewart: Yes, but if he is not then they're not covered.
William C. Bryson: Oh exactly.
Potter Stewart: And if he is, they may or may not be covered.
William C. Bryson: Exactly.
Potter Stewart: That's right.
William C. Bryson: Right. The -- if he is covered though, they -- for instance in the case of --
Potter Stewart: Clerical employees --
William C. Bryson: Clerical employees may well not be because it's --
Harry A. Blackmun: It may well, what about a clerical employee who's doing clerical work in connection with moving cargo from -- within the maritime --
William C. Bryson: Well, that -- that gets --
Harry A. Blackmun: As a trucker?
William C. Bryson: Well, that's exactly right. I was just going to say that gets to a line, it's a difficult line to draw and it is a line which has come up in a couple of cases although not too often. The clerical workers tend not to suffer very many injuries and there haven't been -- there are many --
Harry A. Blackmun: What if he had a truck driver -- what if he had a truck driver who worked exclusively on the pier between, say a warehouse and hauling cargo from the warehouse to a railroad pick up?
William C. Bryson: He would be covered.
Harry A. Blackmun: As a truck driver he would be covered?
William C. Bryson: Well, he would be covered because he would be engaged in the overall process of moving the cargo in the marine terminal area between the vessel and the land for the land transportation which is the railroad which would take it off. Now, he would be covered because in our view, he'd be engaged in longshoring operations. For instance --
Harry A. Blackmun: And within the railroad to which he is delivered it was five miles off the maritime site.
William C. Bryson: Well, if it was off the --
Harry A. Blackmun: But he regularly picked -- took it up from the warehouse on the site to the --
William C. Bryson: Well --
Harry A. Blackmun: -- railroad station five miles away?
William C. Bryson: That's a difficult question to answer. I don't know that that sort of situation appears very often in the industry but the answer to that would depend I think -- if he is picking up the cargo at the terminal and carrying it on and just essentially being a middleman between the terminal and a further land transportation which is as I understand your example, I would say he would not be covered because he would not be --
Harry A. Blackmun: It could be under your definition as I understand your brief.
William C. Bryson: I don't believe so. I believe that his case would be a case in which he was not working at the terminal moving things through the terminal, rather he is taking it from the terminal, as I understand your hypothetical and moving it from the terminal to a further transfer point outside of the terminal. But if he were, for instance as --
Harry A. Blackmun: He regularly worked within the terminal moving cargo between maritime transportation and land transportation, everyday he does it.
William C. Bryson: But he is not working within the confines of the terminal. He is taking things from the edge of the terminal --
Harry A. Blackmun: Not all day but he does for the first portion of his journey.
William C. Bryson: The portion of the journey in which he --
Harry A. Blackmun: Are you -- is your test limited to the case in which the land transportation commences within the terminal, is that the test?
John Paul Stevens: He in fact know.
William C. Bryson: Where the land transportation commences at the interface between the term -- where the terminal employees give the cargo over to a mode of land transportation at that point and the land transportation takes it elsewhere.
Potter Stewart: Well, that's unloading but not how about the loading?
William C. Bryson: Well, in the case of loading, the reverse should apply. That he would not be covered if he were bringing the cargo into the terminal even if it were not at the edge of the terminal physically but actually put it down within 30 feet inside the terminal or wherever.
Potter Stewart: -- of the discredited point of rest test, doesn't it?
William C. Bryson: Well, I think not. The -- the point of rest test of course distinguished within the terminal between where the cargo came off the vessel and was placed down and so forth. Here we're talking about the edge of the terminal which is the status, excuse me, the situs line.
John Paul Stevens: Your hypothesis is that land transportation always commences right on the edge of the terminal?
William C. Bryson: No, it may not be but --
John Paul Stevens: Couldn't he not -- sometimes commenced within, sometimes on the edge and sometimes without.
William C. Bryson: Exactly. In the Ford case --
John Paul Stevens: And you get different results in those three cases?
William C. Bryson: No, I don't think so Mr. Justice Stevens.
John Paul Stevens: So that even if the land transportation commences five miles outside the terminal, if the truck driver regularly goes within the terminal, he's covered. That's what I understand you to say.
William C. Bryson: No, I think not because he would be basically --
John Paul Stevens: Well, there are three cases. Now, I want your answer on all three, one, where the land transportation commences within, another right on the edge and third where it begins without the term.
William C. Bryson: I think the --
John Paul Stevens: You'll get different results in the three?
William C. Bryson: I don't think so. I think that the place in which this land transportation agent is picking up the --
John Paul Stevens: He always picks it up within, he's unloading. He always picks it up within, that's the place of where the land transportation commences. Now, is it -- does it matter whether it's just outside the terminal and if it is just outside the terminal, six inches, is that the same case as if it's ten miles outside the terminal? Do you have a clearly defined position?
William C. Bryson: I may have your hypothetical somewhat mixed up. The -- this is a process in which we have unloaded a vessel.
John Paul Stevens: You put some cotton in the warehouse. You take it from the warehouse on some kind of -- in some kind of a truck to a railroad. And the railroad spur truck in which is loaded are three different examples. One, the spur truck comes onto the pier or wherever it is, secondly its right at the border, thirdly its outside.
William C. Bryson: No, I would say none of those three cases would be covered.
John Paul Stevens: Oh, none would be covered.
William C. Bryson: No, I think none of those three cases would be covered. The --
Thurgood Marshall: He's working on the water?
William C. Bryson: If -- well, but the point is that the railroad employee here --
John Paul Stevens: He's not a railroad employee. He's an employee of an employer.
Warren E. Burger: That's right.
William C. Bryson: Right.
John Paul Stevens: That's our hypothesis all the way through, an employer --
Potter Stewart: Right.
John Paul Stevens: -- who has some employees.
Potter Stewart: Right.
William C. Bryson: -- and if the -- his basic employment was to move the --
John Paul Stevens: Countervails from a warehouse to a railroad?
William C. Bryson: I would say he would not be covered because he would be moving basically engaged in land transportation into a marine terminal and further activities once you get to the marine terminal, further activities within the terminal --
John Paul Stevens: Oh, I was talking about unloading.
William H. Rehnquist: Oh, I think he -- you're -- Justice Stevens is asking you about just taking the stuff away, aren't you?
John Paul Stevens: That's right. I'm just talking about unloading, going away from the --
William C. Bryson: Right.
John Paul Stevens: -- from the ship to the land transportation. And he's a truck driver.
William C. Bryson: Right.
John Paul Stevens: And you say he's never covered because he's a truck driver, is that it?
William C. Bryson: Well, that is different. It's an important --
John Paul Stevens: -- it's --
William C. Bryson: -- an important element in determining --
Byron R. White: Well --
William C. Bryson: Well, because he's basically engaged in transporting cargo from a marine terminal to somewhere else.
Byron R. White: To a railroad?
William C. Bryson: Right.
John Paul Stevens: Every example I give you is from a warehouse within the terminal to a railroad which is going to ship it to New York or some place --
William C. Bryson: Right.
John Paul Stevens: -- across the country.
William C. Bryson: Right.
John Paul Stevens: And the three different examples are one, where the railroad has the spur on the terminal, secondly right at the edge and thirdly outside.
William C. Bryson: I'm sorry, I did misunderstand your example. I -- where the railroad spur is within the marine terminal, he would be covered.
John Paul Stevens: Alright.
William C. Bryson: I'm -- I am sorry, I --
William O. Douglas: And you'd say he'd be covered if it's right at the edge?
William C. Bryson: If it is right at the edge, if the --
William O. Douglas: Now, what if it is six inches outside the edge?
William C. Bryson: Well, if it's six inches outside the edge, I think he would also --
William O. Douglas: What if it's ten feet outside the edge?
William C. Bryson: Well, that's the kind of problem you're going to get. I understand. I am --
John Paul Stevens: You're asking us to draw a good hard fast line and have you got that line firmly in mind, that's what --
William C. Bryson: Well, the --
John Paul Stevens: -- I'm trying to find out.
William C. Bryson: The problem is that this situation doesn't appear very often in the industry. Now, that it's a difficult line to draw of course with respect to this -- the statute which has very general statutory language about what constitutes longshoring operations but the general pattern in the industry is for the spur to go into the marine terminal and you have people who are employed by the marine terminal to transfer cargo from the vessel or from the place inside the marine terminal to the spur that's located right there. Now, of course --
John Paul Stevens: But then are you saying that his entire employment must be on the situs?
William C. Bryson: No. Now, he --
John Paul Stevens: Then --
William C. Bryson: He may -- it may be that he is basically employed on the situs. He is em -- if he's employed by an employer that he spends a lot of his time on the situs that he's basically a terminal worker but he may occasionally go off the terminal and deliver something. The fact that he goes off the term --
Thurgood Marshall: I have seen some of these term, but I guess we all did, and I am seeing one yet that has a sign that says this is six inches passed. In the real ports, you don't where a terminal ends.
William C. Bryson: Well, the --
Thurgood Marshall: Isn't that true? Some of them have fences and some of them don't.
William C. Bryson: Well, in these cases it was --
Thurgood Marshall: If they don't have a fence, how do you know where the end of it? That --
William C. Bryson: Well, the -- the terminal is generally defined by the relationship of the land transportation and the sea, transmittal of cargo between the sea and the land transportation device as either the railroad or a truck. Now, in the Caputo case itself, there was some question as to whether -- where the limits --
Thurgood Marshall: When this -- where truck comes in, what I'm trying to get in my mind clear, onto the wharf, onto the pier, or whatever you want to call it, do you know exactly when it's on the pier?
William C. Bryson: When it's on the --
Thurgood Marshall: Is there a sign that says this is the pier?
William C. Bryson: It may well --
Thurgood Marshall: Of course there is none.
William C. Bryson: Well, in many cases for instance as in the Port of Beaumont, there is a sign that says this is the Port of Beaumont and in some cases it's true.
Thurgood Marshall: It's up in there?
William C. Bryson: Well, that's true. That's true. It -- it may create some difficulty in determining exactly what the limits of the terminal are but there aren't very -- many cases that we've had to look at in which --
John Paul Stevens: But in the point, the -- Mr. Bryson in the Caputo, reading from page 253 of the opinion, the container Blundo was checking, had been taken off a vessels at another pier facility outside of Brooklyn and brought overland unopened by an independent trucking company to the 21st Street pier. The question that raises my mind is the truck driver who hold that container from one pier to another is covered.
William C. Bryson: Well, that truck driver -- I believe, although I'm not sure that the record reflects it. I believe that truck driver was not employed by an employer.
John Paul Stevens: Again, assuming he was employed by an employer, would that --
William C. Bryson: Well, if he were employed by the terminal operator let's say, I would think he would be covered because he'd be moving between one facility of the terminal and another where you'd basically -- well, that may be and he would still be -- because the cargo had not been unloaded at that point he would still be --
John Paul Stevens: All I'm suggesting to you is that moving from one maritime terminal to another, it isn't very different for moving from one maritime terminal to a railroad station five miles away and I'm sure that happens fairly often.
William C. Bryson: Well, I think that the usual pattern is for the railroad spur to be coming up to the terminal and if it is the employee of the terminal operator that is doing the moving, he would be engaged in longshoring operations. Now, the --
Byron R. White: I think -- but then the gang point now is just -- extends to the edge of the terminal?
William C. Bryson: That's right. I think that's one way of putting it. It isn't the way I would put it but I think that's accurate and the definition of navigable waters is the way Congress did just that. They said, the Jensen line will be moved from the gangplank to the edge of the marine terminal and they used the word terminal in def -- redefining navigable waters. Now, the petitioners have proposed a test under which the coverage under the Act would depend on whether the employee was subject at any point during the day that he was injured to being assigned onboard a vessel. Now, there are number of problems with this test. And the first and most fundamental problem is that it fails to take account of the basic purpose of the 1972 Act which was to move the Jensen line inward, to move it away from the gang --
Byron R. White: What if that's situs again. I -- I think it's -- don't you think it's of any importance to distinguish between the test of situs and case -- test of status?
William C. Bryson: Certainly, except that before 1972 --
Byron R. White: Isn't it important not to confuse the -- confuse them.
William C. Bryson: Exactly.
Byron R. White: Because they're confusing enough statute as it is.
William C. Bryson: It certainly is. The problem though with petitioner's test I think it -- is that it reinstate situs, a situs test into the status definition by virtue of going back to the situs question of maritime employment which depended on its being as petitioners read it over the water and saying that that's necessary to get the status that you have to have the subject to being assigned onto a maritime situs in order to have a maritime employment status. I think that's exactly the problem with petitioner's test. The --
William H. Rehnquist: Oh, do you say that you can have maritime employment without ever being subject to assignment and employment as --
William C. Bryson: Exactly, as in the case of a shipbuilder for instance. Or as in -- to take an example, there are many instances in which somebody maybe a dockworker who is not subject to assignment on the ship but he is engaged integrally in the unloading and loading process. For instance, to take Mr. Blundo, the checker in the Caputo case, although as a matter of fact, as the court wrote in describing the facts, Mr. Blundo was subject to be going on a ship in certain cases. He could very well not have been. He could --
Potter Stewart: Well, the result might have been different if he had not been.
William C. Bryson: Well, but the court did not --
Potter Stewart: It's hard to tell from that opinion.
William C. Bryson: The court did not in discussing Mr. Blundo's status and why he was in -- was -- had a status that was a maritime status, they did not -- the court did not referred to the fact that he was subject to assignment on the ship.
Potter Stewart: Whether it should be -- an opinion as a matter of --
William C. Bryson: It's in the facts, that's true. The problem --
William H. Rehnquist: The outer limit then of this employment test is maritime employment?
Warren E. Burger: A case like this, which should not have --
William C. Bryson: That's right.
William H. Rehnquist: Someone who was not engaged in maritime employment couldn't qualify?
William C. Bryson: That's right. And maritime employment includes each of the various named categories and others, miscellaneous categories that may appear. But in that it covers each of those named categories that it covers such people as shipbuilders who in many instances as I say may not be subject to being assigned on a vessel and it also covers the dockworker who may be involved in an integral part of the unloading process. For instance, suppose I'm a dockworker standing right on the dock, taking cargo directly from the ship. I simply happened not to be subject to assignment to the ship, to work onboard a ship, I would clearly be engaged in longshoring operations even though I was not subject to being assigned on a ship. Now, I would be covered under the new Act. I would have a maritime status because I was engaged in longshoring operations, I would have the maritime situs because I would be involved in -- I would be working over navigable waters but I would not be included in petitioner's test because I would be -- not subject to assignment on the vessel not --
Byron R. White: So you would -- but your test could also cover the worker who took a cargo out of a warehouse on the dock that have been stored there for five or six days.
William C. Bryson: Well, that's true.
Potter Stewart: How was that in that -- this case, with respect to --
William C. Bryson: That's this case. That's right and in our view and in the view of the board and the director have taken, it is -- you can't distinguish between the case in which the cargo moves steadily from the ship to land transportation and the case in which the cargo is taken out of the ship, laid down at the point of rest and then allowed to sit there for a day or so and then picked up then and moved on to a land transportation. In that case, the board is determined that there just is no way to determine how long it has to sit there whether if -- if it sits there and is picked up by somebody who works in a different crew, that person should not be covered. Now, the court rejected that point of rest test in Caputo and the same considerations suggests rejecting the petitioner's test in this case which would depend on this business of assignment on a vessel on the day of injury. Suppose for instance a vessel was not in port on the particular day of injury, it's not clear that petitioner's test would --
Potter Stewart: This isn't really the petitioner's test. Its -- more accurately what the petitioner says, the statutory test is.
William C. Bryson: Well, that's right. That's right.
Potter Stewart: And if -- suppose a vessel weren't there on the date of the injury, the -- under his -- I understand the -- what the petitioner thinks the statute means will tell us the statute means then he wouldn't be covered.
William C. Bryson: Well, that's right but we suggest that that would not make good sense in applying --
Potter Stewart: Maybe not, maybe nothing in the statute that's very good sense --
William C. Bryson: Well --
Potter Stewart: -- but we're -- our duty is to decide what the statute means.
William C. Bryson: Well, that's certainly true and our suggestion is that particularly in light of the doctrine that this statute should be given an expansive construction in favor of the injury claimant that a narrow construction of the statute which would exclude claimants who were injured on the dock moving cargo clearly engaged in longshoring operations for instances suppose unloading a container, the fact that they were injured on a day when the ship was not in port should not determine their coverage. The --
John Paul Stevens: Mr. Bryson, could I ask one other question? No one argues this but is it conceivable that the status test should be answered by some kind of a consideration of the character, the work the man is doing? And others could, one for example say that truck driving is not typical longshoring work and an -- a truck driver would never be covered.
William C. Bryson: Well, that's right. I think, I would hesitate to say it because it may well be that the terminal would large enough that you will actually be driving a dolly or some mechanized vehicle, a forklift is a kind of truck I suppose and he may well be moving a truck or you may well be using a very large forklift that looks a lot like a truck. Typically, we would say of course that would be longshoring operations but --
Thurgood Marshall: Yes, but -- wouldn't that -- the Caputo case is like that, wasn't it?
William C. Bryson: Well, Caputo was busy loading a truck.
Thurgood Marshall: Where the trucks right on the dock?
Potter Stewart: Yes.
William C. Bryson: Well, that's right and --
Thurgood Marshall: It was right on --
William C. Bryson: But Caputo was covered but the truck driver who was --
Potter Stewart: Was not.
William C. Bryson: -- was not, who was busy --
Thurgood Marshall: But the trucks were on the dock.
William C. Bryson: That's right. The trucks were being loaded directly --
John Paul Stevens: I thought earlier, when we were talking before, you assumed the truck driver would be performing the kind of work that would normally be covered if it was at the right place in the chain of movement of good.
William C. Bryson: Well, if you have a -- I mean, certainly a truck driver could be employed in a marine terminal to move cargo from the vessel, the side of the vessel all the way to the railroad spur and he would be covered even though typically be --
John Paul Stevens: He did none of the actual physical loading of the truck himself, all he did was sit behind the wheel and drive back and forth, --
William C. Bryson: That's right forklift drivers often do just that.
John Paul Stevens: I understand forklift truck is a little --
William C. Bryson: Right,
John Paul Stevens: -- that's a little more like what typical longshoreman --
William C. Bryson: That's right.
John Paul Stevens: We're talking about a driver of a, you know, a teamster. Would he -- he is -- it's clear, everybody agrees he's covered if it's done in the right place and at the right chain?
William C. Bryson: I would certainly suggest --
John Paul Stevens: That it woud be covered --
William C. Bryson: -- that he would be covered, yes.
Potter Stewart: Oh, that's -- the petitioners certainly wouldn't agree with you.
William C. Bryson: Oh no, because they would say that he is not subject to go in on a vessel. Now, of course if he were subject to go in on a vessel by his union contract, if for instance, --
Potter Stewart: Assigned in that day --
William C. Bryson: -- he could to drive --
Potter Stewart: To being assigned --
William C. Bryson: -- to being assigned that day.
John Paul Stevens: (Inaudible)
William C. Bryson: If he could drive his truck onto a vessel.
John Paul Stevens: If he had to go on the ship to have the captain sign the bill of lading or whatever it might be.
William C. Bryson: Exactly. He would be --
Potter Stewart: He'd be covered.
William C. Bryson: Well, I -- that's my understanding of the petitioner's test because that would be an assignment onto the ship in the course of his employment.
Thurgood Marshall: Wouldn't the union send him onto that?
William C. Bryson: Well, that's a possibility and that may be how this will all be resolved. Thank you.
Thurgood Marshall: We're all concern with the brief --
Warren E. Burger: Mr. Vickery.
E. D. Vickery: May it please the Court. There are two things that I particularly need to say to the court. Please look at the last two sentences of the legislative history. They absolutely and categorically confirmed this Court's --
Byron R. White: Who doesn't agree?
Potter Stewart: Footnote 36 on page 13?
E. D. Vickery: Alright. They absolutely confirmed --
Potter Stewart: Is that correct?
E. D. Vickery: -- this Court's definition of maritime employment as being used in connection with the 1972 amendments. They state categorically that an employer who does not have any employees who works on navigable waters is not engaged in maritime employment. There are many companies around the country that do nothing but warehouse work and they don't have a single employee whoever goes on the navigable waters of the United States. They do exactly the same type of work that the Ford was doing, exactly the same type of work that Bryant was doing but they have not a single employee who does any work on navigable waters. Congress states categorically that they are not covered employers under those circumstances. If those people working on the dock who have no other employees employed by their employer cannot be involved in maritime employment either. This is the bootstrap operation that --
Thurgood Marshall: The dock is one --
E. D. Vickery: Sir?
Thurgood Marshall: The dock is --
E. D. Vickery: Yes, this Court has held many times the dock is an extension of the land --
Thurgood Marshall: Suppose you --
E. D. Vickery: -- and has nothing to do
Thurgood Marshall: But it -- that's the type (Inaudible)?
E. D. Vickery: Sorry?
Thurgood Marshall: That's the type you're talking about. It gives you the same dock. I wonder what type these docks would cover.
E. D. Vickery: Well, because of the -- because it's well settled in the law that a dock is the extension of the land whether there is water underneath the dock or a land underneath the dock Mr. Justice Marshall, I don't think it makes any difference.
Thurgood Marshall: I just wanted to know.
E. D. Vickery: I see. I believe that in Ford's case, there was no water under the area --
Thurgood Marshall: That's --
E. D. Vickery: -- involved in Bryant's case, most of the piers and warehouses in Galveston are --
Thurgood Marshall: Didn't you understand?
E. D. Vickery: Oh, the water, I'm sorry, I misunderstood you.
Thurgood Marshall: Yes.
E. D. Vickery: I misunderstood your question. Now, the second thing that I need to say to the court and I respectfully request that you carefully consider is whether as federal respondent contends Congress intended to move the Jensen line up to the edge of the terminal or whether Congress simply intended to provide a uniform compensation system for those workers who prior to the 1972 amendments had to cross the Jensen line and that's all Congress did. It says, the intent is to provide a uniform system to apply to employees who otherwise be covered by this Act for part of their activity that Jensen line is what split their workman's compensation remedy.
Potter Stewart: Now, Mr. Vickery, looking at the definition of the term employee in Section 2 (3), it says as you indicate that it means first of all that any person engaged in maritime employment including and then it says including a ship repairman, a shipbuilder and a shipbreaker. Is it your contention that for ship repairmen or shipbuilder or shipbreaker to be covered by this Act, he must be subject on the day of his injury or death to assignment on work on navigable waters?
E. D. Vickery: I believe that same maritime employment --
Potter Stewart: That can be answered yes or no, my question.
E. D. Vickery: Yes, sir. I think the same maritime employment requirement exists there.
Potter Stewart: So if he is a shipbuilder, full time, life long career, a shipbuilder but he's a shipbuilder -- on building a ship before it whatever is on navigable waters, then he's not covered at all and never was and never can be by this Act, is that it?
E. D. Vickery: Your Honor, I believe that's what Congress says. I believe that's what they say. I believe the only possibility of their being a variation in this and I've had no shipbuilder in cases and I'm sorry, I'm uninformed on it.
Potter Stewart: No, no, what the statute does express --
E. D. Vickery: But the Secretary of Labor had defined all of these terms that are used in the Act in connection with the Safety and Health Regulations for longshoring and ship repairers, shipbreakers and shipbuilders. Those were published in 1960 and the Secretary of Labor's definition of longshoring operations in connection with the Safety and Health Program which he has operated since 1960 is so different from the proposed longshoring operations test that the federal respondents submits to this Court, that is ludicrous.
Potter Stewart: Now, my -- my question doesn't have anything to do with longshoring operations. There's a different part of the definition --
E. D. Vickery: Right. I understand.
Potter Stewart: -- of an employee. It means any person engaged in maritime employment including a shipbuilder. Now, that's -- there's no claim that he is a longshoreman or anything like it.
E. D. Vickery: Right.
Potter Stewart: But let's assume that he is and always has been during his occupation in life, a shipbuilder but that his work is in building ships before they are ever on navigable waters. Your -- your argument has to be that he's not covered at all by this statute?
E. D. Vickery: And that is correct. That is not maritime employment within the meaning --
Potter Stewart: That's right.
E. D. Vickery: -- within the meaning of the Act.
Potter Stewart: And you do concede that there are shipbuilders all of whose occupational time is spent not on navigable waters.
E. D. Vickery: I believe the estimate given in the Senate hearings at about 65 to 70% of the work on a shipyard was on navigable waters. Then those workers who were involved --
Potter Stewart: And there's 30 to 35% that's not.
E. D. Vickery: That there would be about 35 that would be not. So a shipbuilder who builds it entirely on land, who builds a vessel --
Potter Stewart: And if he is subject on the day of his injury or death to assignment to navigable waters --
E. D. Vickery: That's right.
Potter Stewart: -- in his occupation --
E. D. Vickery: He is not engaged in --
Potter Stewart: -- he is not covered by this --
E. D. Vickery: He is not engaged in maritime employment.
Potter Stewart: (Inaudible)
E. D. Vickery: There are shipbuilders --
Potter Stewart: I thought that he was.
E. D. Vickery: Your Honor, there are shipbuilders who build tugs, barges and things like that entirely on land taken by trailer --
Potter Stewart: You mean --
E. D. Vickery: -- and then launch them.
Potter Stewart: Right.
E. D. Vickery: And in my opinion those people are not engaged in --
Potter Stewart: Some of them in World War II, I remember in Iowa as I remember it.
E. D. Vickery: Yes, sir. Consider --
Byron R. White: Steamships too.
Potter Stewart: Yes.
E. D. Vickery: Yes, they can be built entirely on land. Thank you very much Your Honor.
Warren E. Burger: Thank you gentlemen. The case is submitted.