Warren E. Burger: Number 9 Nacirema Operating Company against Johnson and others. And with number 16 Trainer against Johnson and others. Mr. Coleman you may proceed whenever you're ready.
Randall C. Coleman: Thank you sir. Mr. Chief Justice and may it please the Court. The issues before the Court today involve whether or not injuries which have occurred to Longshoreman on piers are within the coverage of the Longshoreman's Act. This Court will also be called upon to consider the Admiralty Extension Act because the Court of Appeals for the Fourth Circuit answered in the affirmative the question of whether pier injuries were covered by the Longshoreman's Act and further stated that the Admiralty Extension Act extended the coverage of the Longshoreman's Act. The facts in this case, I think Your Honors are not disputed. They are consolidated cases and the cases before this Court involve three Longshoreman, initially I might say that four Longshoreman were involved but the fourth one, a man named Van had sustained his injury which resulted into his death on navigable waters and the Deputy Commissioner had awarded compensation in that case under the Longshoreman's Act. It was affirmed by the District Court and further affirmed for the Court of Appeals for the Fourth Circuit. So, it's not before the Court today. In the cases here, two Longshoreman were working in Maryland, William Johnson and Joseph Closeck were employees of the Nacirema Operating Company, they were working in a gondola car on the Bethlehem Steel High Pier at Sparrow's Point, Maryland. Their job was to act as slingers that is a man who hooked on steel beams to the cables or falls which were suspended from the vessel which was alongside the pier in the process of loading the ship. The accident which befell those men was the result of the draft swinging and it knocked Mr. Closeck from the gondola car to the pier, he sustained injuries which resulted in his death and Mr. Johnson was pinned against the side of the gondola car and he there sustained his injuries. In the Albert Avery case, the accident also befell him while he was in a gondola car and he was on the City Piers in Norfolk, Virginia, acting as a slinger and the cargo there involved was a cargo of logs. The logs swung against him and injured him while he was in the gondola car. Now in each case, in Maryland and in Virginia, the cases were presented to the respective Deputy Commissioners. The Deputy Commissioners in each instance denied coverage under the Longshoreman's Act and maintained that the accidents have not occurred upon the navigable waters of the United States. Thereafter, the cases were appealed to the District Court for the District of Maryland and to the District Court for the Eastern District of Virginia and in those two Courts, the decisions of the Deputy Commissioners were upheld. I might point out that as part of the facts and which the Court will certainly wish to consider, is that these piers were very long piers, they were on pilings. They did extend over navigable waters of the United States. The men who worked on these piers could and did pass freely between the ship and the pier. Now, when the case was taken from the District Court to the Court of Appeals for the Fourth Circuit, they were first argued before separate panels then consolidated and argued before the Court embank. The Court of Appeals for the Fourth Circuit reversed the District Court judges in the Eastern District of Virginia and in the District of Maryland and in a five to two decision held at these accidents did fall within the coverage of the Longshoreman's Act. The case was then presented to this Court, certiorari was granted, the Solicitor General applied for certiorari on behalf of the two Deputy Commissioners, we applied for certiorari on behalf of the Stevedoring companies below, certiorari was granted. The case was argued initially before this Court in March of this year and then set down for re-argument today. I recall that in the initial argument, I had been asked whether or not an appeal from the Deputy Commissioner came up in admiralty on the civil side and I replied that it arose on the admiralty side of the docket. I was correct so far as Maryland was concerned but I was not fully correct because I find that it's a matter of local practice and though in Maryland, those appeals come up in admiralty. In the Avery case which came up in Virginia, the local practice differed and it came up on the civil side. You can see the caption of the case is at pages 11 and 12 of the appendix and page 35 of the appendix in our cases.
Potter Stewart: Mr. Coleman, the so called appeal that's a District Court proceeding from the Deputy Commissioner?
Randall C. Coleman: Yes, sir.
Potter Stewart: And what practical difference, if any does it make whether it's denominated on the admiralty side or the civil side.
Randall C. Coleman: Your Honor, I don't think it makes any practical difference. I had been asked the question how they arose on what side. I find it it's entirely a practice, a matter of local practice within the courts. So,I think it makes no difference at all, it's just a matter what the clerk says you do and in Maryland they say you do it in admiralty and in Virginia they say you do it on the civil side that they were simply captioned that way. The thing that -- the point which I think is very critical in this case and which was entirely overlooked in the Court below despite the fact that it was argued in the briefs, extensively covered and the two opinions of the district judges is the fact that these injuries occurred on piers and the further fact that a long line of decisions has held without any question that piers are extensions of the land. I think probably the leading case is this Court's decision in 1945, it was announced by Mr. Justice Black, it was Mr. Chief Justice Stone's decision. Swanson against Marra Brothers, it involved a pier injury when Swanson was injured on the pier as a result of a life raft from the vessel dropping on him, falling on him and injuring him. In speaking of the Longshoreman's Act and this language has been quoted repeatedly when the question has arisen, the Court said but this Act, that's the Longshoreman's Act, is restricted to compensation for injuries occurring on navigable waters. It excludes from its own terms and from the Jones Act any remedies against the employer for injuries inflicted on shore. The Act leaves the injured employees in such cases to pursue the remedies afforded by local law and in these very cases, the accidents occurred on piers and compensation in all three cases has been given to the men and the widow of Mr. Closeck under the state act because they were considered land injuries.
Hugo L. Black: What case were you reading there?
Randall C. Coleman: I was quoting, Your Honor the Swanson against Marra Brothers, the one Your Honor announced, I think Mr. Chief Justice Stone wrote the opinion. This Court followed in Swanson against Marra Brothers and still follows, as always followed the line of demarcation which was drawn in the Jensen case, Southern Pacific against Jensen, if Your Honors recall involved fatal injuries which occurred on a gangway. That gangway was considered to be on navigable waters. There had been an effort to give New York compensation, New York State compensation for the injuries sustained there but the Supreme Court would not permit it saying that it was violative of the constitution and the line that was drawn in Jensen followed in the Dawson case, followed in the Knickerbocker case the Triambride that has frequently been referred to by this Court ever since that decision, those decisions was the line between navigable waters of the United States and land or extensions of the land and where it occurred on navigable waters, the Longshoreman's Act apply and where it occurred on land or extensions of land, the state acts applied. Now, these injuries did not occur on the exception that is included in the Longshoreman's Act of any dry dock. A pier such as this or a wharf is not considered a dry dock. What is considered a dry dock has been considered and discussed at length by this Court in Avendeo Marine Ways against Henderson, that was Mr. Justice Douglas' decision, certainly these accidents do not fall within the twilight zone which was Davis against Department of Labor. The twilight zone are the undefined and indefinable areas which are very shadowy but there's nothing shadowy in this instance because it was a clearly pier injury all the way where confusion sometimes arises and I was asked a number of questions along these lines at the last argument, is where the impact occurs at one place and the damage which ensues occurs somewhere else. This Court has been uniform in its holdings of how to apply coverage under those conditions. I can -- I intend to run down those cases very quickly if I may in the Admiral People's case which was a 1935 decision of the Court, a passenger who fell from a gangway to the dock was injured on the dock and it was held that that was within the Admiralty tort jurisdiction at the time because the accident or the tort occurred on navigable waters. The injury that is the damage to the person occurred to the passenger, occurred when he hit the dock. But it arose the tort, the wrong occurred on navigable waters. It approved that did not involve the Longshoreman's Act but within the body of the Admiral People's, this Court refer to the reasoning of the Court of Appeals for the Fifth Circuit in Lahode against Crawl and there, the Longshoreman had completed his job on the pier was being hoisted from the pier in a sling to the deck of the ship. He smacked the sling swung against the side of the ship and he hit the side of the ship, that's where the Court considered that the accident occurred, he fell back and sustained injuries on the pier and the Supreme Court in the Admiral People's approved of that finding of the Court of Appeals for the Fourth Circuit. In Minnie against Port Huron, it faced the problem directly involving the longshoreman. It denied, this Court denied state compensation coverage to a longshoreman who was on the ship when he was swung by a swinging load on the ship and not to the pier. It was held that the accident which brought about the damage occurred on navigable waters. It cited with approval its prior decision, it reaffirmed its prior decision in Smith and Son against Taylor which was a 1928 decision that State Law covered the Longshoreman who was struck by a swinging load on the pier and was knocked into the water so that the Supreme Court has been uniform in its holding that where the tort or injury occurs, even though the damage from it occurs elsewhere, the coverage depends upon the place of the happening of the accident, of the tort or the striking or the wrong. Now, I'm bound to say that this has not been absolutely uniformly applied in all of the circuits but it has been uniformly applied in the Supreme Court and there is absolutely uniformity when the accident clearly occurred on a pier or clearly occurred on navigable waters. There has been no holding anywhere by any court except the Court of Appeals for the Fourth Circuit and the decision below that when an accident clearly occurs on a pier and in this case both the impact and the injury occurred on the pier, there has never been a holding except the court below to the affect that that should be covered by the Longshoreman's Act. This -- this Court has uniformly applied it in these series of cases, Jensen, Knickerbocker, Dawson, those were navigable waters cases and the Court would not permit compensation under the State Compensation Acts in Nordenholt and Swanson against Marra Brothers, the injuries were clearly pier injuries and there the Court applied state compensation. The latest cases in the circuits are the Travelers against Shea and Nicholson against Calbeck from the Fifth Circuit. There they were clearly pier injuries. It was held that there was no compensation under the Longshoreman's Act and this Court denied certiorari in those two cases in 1968. The Ninth Circuit made the same holding in Houser against O'Leary likewise a pier injury clearly, unmistakably just as in this case, the Ninth Circuit denied coverage under the Longshoreman's Act and in 1968 this Court denied certiorari so the only exception to this uniform rule of all the circuits and this Court is the decision below. It relied on the Calbeck case, Calbeck against Traveler's Insurance Company, reported at 370 United States 114. Since the Court did rely so heavily on that, I would like to go into it if I may rather extensively because I think the Court below mistakenly read and applied the Calbeck decision. That case involved injuries to two or more shipyard workers who sustained injuries on ships which were under construction and on navigable waters. Now, the Court was concerned just what to do in that case because in a similar case which this Court had decided Grant Smith-Porter Ship Company against Rohde, the Court had held that in new construction, a state act applied. They were fearful that there might be a gap that in areas such as the new construction in the Calbeck against Traveler's Insurance Company case, there might be no coverage at all so what the Court did hold in Calbeck was that there could be coverage under either act, it did not say that pier injuries or land injuries were covered by a state act. What it said repeatedly over and over again was that irrespective of what else may be considered in this case, these workmen were injured on navigable waters. It said it over and over again and the Court held that since the injuries to the men in the Calbeck case did occur upon navigable waters, they had the right to recover under the Longshoreman's Act. Now, the Court in that case repeated and reaffirmed its adherence to the Jensen line of demarcation. It referred to it in so many words, the line again is that which has been drawn and clearly established for 42 years between navigable waters of the United States and land or extensions of land. It referred to the very language of Senate Report 973 which has been quoted extensively in the descending opinion below and in the opinion both of Judges Watkins and Hoffman in the District Courts as a language which shows that the legislative history likewise supports such a finding, Senate Report 973 says injuries occurring in loading or unloading are not covered unless they occur on the ship or between the wharf and the ship and these injuries didn't occur on the ship, nor did they occur between the wharf and the ship, they occurred on the pier. The Court below likewise held and considered that the Admiralty Extension Act extended and expanded the coverage of the Longshoreman's Act. I think, Your Honors that the Court below was mistaken in that. The Admiralty Extension Act did indeed expand admiralty, tort, jurisdiction to torts which occurred on land if caused by a vessel on navigable waters and that's all the Admiralty Extension Act did. Now. that does not mean that the Admiralty Extension Act did not have an impact on these very cases it's by virtue of the Admiralty Extension Act that this Mrs. Closeck and Mr. Johnson have presently pending third party damage claims in the United States District Court for the District of Maryland for damages as a result of this.
Potter Stewart: It would be against the ship owner?
Randall C. Coleman: Yes, sir. Against Bethlehem Steel Company.
Potter Stewart: Is that the ship owner?
Randall C. Coleman: Yes, sir. Bethlehem owns, the ship was the Beth Text. No sir, Bethlehem owned the ship, it was the Beth Text and --
Potter Stewart: It could be for unseaworthiness or --
Randall C. Coleman: Unseaworthiness, the allegation is, if I remember correctly the allegation is that the crane which was on the ship was defective and in someway and so there is a suit pending by virtue of the Admiralty Extension Act against the vessel owner and that's how the Admiralty Extension Act comes into play in this type of accident. It doesn't have anything to do with Longshoreman's Act coverage. Now, I think what the lower Court failed to take into account was the very language of the Admiralty Extension Act in the second paragraph, the second paragraph of the Admiralty Extension Act refers to bringing a suit in rem or in personam. That's not what happens under the Longshoreman's Act, the Longshoreman's Act is an administrative claim, you don't bring your suit, you don't sue in rem under the Longshoreman's Act. You can do that for damages by virtue of the expansion of admiralty tort jurisdiction. It's an administrative proceeding under the Longshoreman's Act which involves no suit at all, it's an administrative claim, it's brought only for compensation, a claim is filed rather than suit so I think the lower Court simply did not take into account the legislative history, the reasons, the purposes of the Act or anything else and misread the clear language. That act was passed entirely in 1948. It was passed in order to rectify certain inequities which existed when people who, people or persons which existed when people who, people or persons or things that were damaged on land by ships on navigable waters were, until the passage of this act denied the right to an admiralty proceeding. That leads Your Honors, into a brief consideration of this Court's decision in Rodrigue against Aetna Casualty Insurity Company. That case was decided by the unanimous Court after the argument in this case in March and I believe the Rodrigue case may have been argued before the March argument. It did not specifically involve the Longshoreman's Act but the Rodrigue case did involve the Death on the High Seas Act in which the Court held that Congress had adopted State Law rather than Federal Law for civil actions involving wrong for depths of workers employed on artificial island drilling rigs. Now, since the author of the decision, Mr. Justice White did refer in his opinion to admiralty jurisdiction and accidents which occurred on piers located above navigable waters, it seems important to examine that language in the light of this case. I think that it's perfectly clear from all the existing law to date that there is certainly no Longshoreman's Act coverage for land injuries. I believe Your Honors it's also clear that the Longshoreman's Act extends only to accidents which occurred on navigable waters and there can be admiralty jurisdiction of course where there's Longshoreman's Act coverage but there's not admiralty jurisdiction in every, I mean there's not Longshoreman's Act coverage in every place that there's admiralty jurisdiction because we've already seen that the Admiralty Extension Act gives admiralty jurisdiction in cases like Gutierrez case where a ship on navigable waters causes damage to shore. Now, the language of this Court and its unanimous opinion in Rodrigue just very recently was the accidents had no more connection with the ordinary stuff of admiralty than do accidents on piers. Mr. Justice White later on stated the accidents would be no more under admiralty jurisdiction than accidents on a wharf located above navigable waters. If that is what this Court thinks as a law that is what this case is all about. If these accidents didn't occur on navigable waters, if this case doesn't involve admiralty jurisdiction, then clearly the lower Court have to be wrong and that was the decision of this Court in Rodrigue since the argument, since the initial argument in March of 1969. The last point I would like to cover is the continued stress by the respondents below by the longshoreman that it is so unfair to longshoreman who happen to reside in Virginia and Maryland not to be able to receive federal compensation because federal compensation in Maryland and Virginia is considerably less than the state -- it is considerably greater than the state compensation in those two states. Well, one it seems to me that is clearly a legislative argument. But it ignores what they're planning to do to longshoreman located in those states where the state compensation is in excess of the federal compensation. I know for example as there's Alaska, California, New York to name three. Thus, if in fact they want to change the law for Maryland and Virginia, they're going to take away from the Longshoreman and other jurisdictions what those states provide. If the Congress see it's fit to change the language of the Longshoreman's Act or if the states see fit to change the amount of compensation, that is one thing but I've submit Your Honors that this case is one which falls clearly within the language of the Longshoreman's Act. It's been uniformly decided here that if the accidents do not occur on navigable waters, they are not covered for the Longshoreman's Act. Thank you sir.
Warren E. Burger: Mr. Solicitor General.
Erwin N. Griswold: Mr. Chief Justice and may it please the Court. Since this is a re-argument, I have tried to think of ways in which I could be of assistance to the Court and it has seemed to me that I might focus primarily on the two aspects of the case which has been so well covered by Mr. Coleman. The first is to emphasize again the fact that this case involves purely a question of statutory construction. It is not a question of constitutional laws. The statute is set forth at pages two to four of the government's brief and the immediately relevant language is that in section three of the Act about three inches below the top of page three. Compensation shall be payable under this chapter in respect to disability or death of an employee but only if the disability or death results from an injury and here are the crucial words, occurring upon the navigable waters of the United States, including any dry dock, and if recovery for the disability or death through workman's compensation proceedings may not be validly provided by state law. I think it is significant that that language does not say within the maritime or admiralty jurisdiction of the United States nor does it say as far as Congress may validly make federal law apply. On the contrary, the way the statute is worded shows that Congress was trying to restrict the scope of federal law and was endeavoring to have state law applied whenever it could but it knew that there were areas where state law could not apply and therefore it felt compelled to enact this statute to provide a remedy for those who were outside and the scope of state law. Not for those who were inside the scope of federal law but for those who were outside the scope of state law. Now, this statute was passed on March 4, 1927 and I suggest that the crucial question is the understanding of Congress in 1927 when that statute was written and not what the constitutional law was then, not what the constitutional law would be now but what was the common understanding and apprehension. A person's familiar with this problem in 1927. Now, that of course goes back to the fact that state workmen's compensation laws were enacted beginning about 1912. No federal workman's compensation law. In the Jensen case which came to this Court in 1917 but which involved an injury which occurred in 1913 or 1914, the facts were that the injury occurred to a man who was operating a truck on a gangway between a pier and the ship. He backed into the ship, his head was hit on the back by the ship as he was moving his truck in and he was killed. The accident occurred on a gangway but above navigable water and the actual impact was with the ship itself. And then the case of Southern Pacific Company against Jensen, decided in 1917. The Court held that that was within the maritime jurisdiction of the United States that the law as to that must be uniform and that couldn't be if the state law is applied and it was beyond the territorial jurisdiction of the legislative power of the states. Now it isn't relevant, it seems to me whether that was right or sound or was a decision which the Court would now follow. That was the decision which was made and was the important part of the background of the statute which Congress enacted ten years later. Then there is another decision which came before the statute, State Industrial Commission against Nordenholt decided in 1922. That was also a proceeding under the New York Workman's Compensation Act. For the death of a Longshoreman who was injured on a dock while engaged in unloading cement from a ship. His job was to receive the bags of cement and pile them on the dock in tiers. He fell from the pile of bags to the floor of the dock. The opinion says it was a dock, there's nothing to indicate whether it was a pier or a wharf and I don't think that makes any difference so wharf being parallel with the shore and a pier extending into the water away from the shore. And the court held in an opinion by Mr. Justice McReynolds that the State Compensation Law could apply and in the opinion, Justice McReynolds referred to and I quote “The doctrine that locality is the exclusive test of admiralty jurisdiction.” Hesona who was the workman was injured upon the dock, an extension of the land, see Cleveland Terminal and Valley Railroad Company against Cleveland Steamship Company in 208 U.S. and that was a case where a ship had hit some docks or piles over water and the protecting piling of the bridge, it was an admiralty case, liable against the ship. It was held that it was not within the admiralty jurisdiction. The result of that case might well be changed by the extension of the Admiralty Act but it is important and that it was the basis cited as a basis for the decision of this Court in the Nordenholt case in 1922. During this period, Congress made two efforts to provide compensation for Longshoreman. One was by an amendment of the jurisdictional provision with respect to jurisdiction of federal courts and the other was by a statute which in effect undertook to say that it is the will of Congress that State Compensation Act should apply to injuries to longshoreman whether on land or in water. In both situations, this Court held that the acts of Congress were unconstitutional, were beyond the power of Congress because of the requirement the Court found that the admiralty power should be exercised on a uniform basis throughout the United States. I mentioned that because it shows plainly that Congress had had its fingers burned and the draftsman of the statute in 1927 were not reaching out but were careful to avoid any possible, a constitutional pitfalls. And this is, made apparent, not only by the wording of the statute to which I have referred but also by the committee report at that time which was quoted by Mr. Coleman, Senate Report number 973 on the Bill which became the Longshoreman's Act where the committee referred to the fact that injuries incurring in loading or unloading are not covered unless they occur on the ship or between the wharf and the ship and what could be a clearer reference to the Jensen case than that. So as to bring them within the maritime jurisdiction of the United States, not as we now conceive it, not as it might have been conceived then but is it had been defined by this Court in the Jensen case and the two which followed. And not only do we have that clear statement in the legislative history in 1927 but we also have the contemporaneous administrative construction which is cited on page 17 of our brief, twice in 1927 within a few months after the statute was passed, again in 1928 and continuously thereafter right down to these two cases. The administrative construction by the agency chartered with administering this act has been to draw the line between ships, gangways to ships on the one end and piers on the other. I think it's also not irrelevant to point out a decision of this Court in 1928 which is just a year after the Longshoreman's Act was passed. This case did not involve the Longshoreman's Act but it does show the clearly enough the state of thinking at that time which is the state of thinking which determine the intension of Congress in drafting the Longshoreman's Act. This is T. Smith and Son Incorporated against Taylor in 276 U.S. and opinion by Mr. Justice Butler. There the deceased was a longshoreman. He was working on a staging and it rested solely upon the wharf and projected a few feet over the water to and near the side of the vessel. He was engaged in unloading the vessel when a sling loaded with five sacks of soda weighing 200 pounds each was being lowered over the side by means of a winch on the vessel. The sling struck the deceased and knocked him off the stage into the water where he was sometime later found dead. The Court referred to the fact that the stage and wharf on which deceased was working are to be deemed an extension of land and that's quotation, citing the Cleveland Terminal case. And said again on page 182 the blow by the sling was what gave rise to the cause of action. It was given and took effect while the deceased was upon the land. It was the sole, immediate and proximate cause of his death and the Court concluded that the state law should apply. After that we have some interval until 1941 and several cases thereafter. In two decisions written by Justice Black in 1941 and in 1942, and an opinion by Mr. Justice Reed in 1953 and most recently in Mr. Justice Brennan's opinion in the Calbeck case, the Court referred in these words to the Jensen line of demarcation as something which was established, known and accepted and it's perfectly plain of course that the Jensen line of demarcation is the line between the water and the land and specifically as applied to this type of occasion between the water and the pier because there are numerous cases of which perhaps the Nordenholt case is the most significant which hold that the pier is an extension of the land, is a part of the land and is to be treated as the land for that purpose. One of the significant cases in this period is the one to which Mr. Coleman has referred, Swanson against the Marra Brothers, one of the very final opinions of Chief Justice Stone in 328 U.S. that is significant here I think because it was a longshoreman working on a pier loading cargo and he was injured when a life raft fell from the vessel and injured him. And the Court decided there that the Longshoreman's Act excludes from its own terms and from the Jones Act any remedies against the employer for injuries inflicted on shore and it went on to refer and this is quoted on page 16 of our brief that to land torts and plainly contemplated that this injury to this workman who is a longshoreman working on a pier was a land tort. And so we feel that the setting in which the statute was drafted makes it quite plain that Congress was seeking to find and to lay down the Jensen line of demarcation, that that line had been made very clear by the decision of this Court at that time that this was expressly referred to and adopted by the congressional committee reports at the time that current administrative practice was in the Court and that this Court has ever since in numerous cases reiterated the fact that the line has been drawn as the Jensen line of demarcation.
Warren E. Burger: Thank you. Mr. Solicitor General you may proceed.
Erwin N. Griswold: Mr. Chief Justice and may it please the Court. Before the recess I tried to outline some of the background describing, defining the situation within which Congress acted when it legislated in 1927. I referred to the Nordenholt case decided by this Court in 1922 involving a pier injury and I would like simply o supplement that by referring also to the Court's opinion in Washington against Dawson and Company in 1924 and that was a case which held invalid the second effort of Congress to make state Workman's Compensation Acts applicable. In the Dawson opinion, the Court said on page 227 Industrial Commission against Nordenholt Company related to a claim based upon death which resulted from injuries received by the longshoreman while along the dock-a matter never within the admiralty jurisdiction. Now, whether that is right or not, whether that is what this Court would now hold seems to me not significant, that is what this Court declared in 1924 and that was the most recent basis upon which the Congress could act when it drafted the statute which was enacted in 1927.
Hugo L. Black: Whose opinion was that?
Erwin N. Griswold: Mr. Justice McReynolds. Nearly all of the opinions in this area in that period were of Mr. Justice McReynolds'. Now in concluding my portion of the argument, I would like to refer as Mr. Coleman did to the Rodrigue case decided last June. That case had a of course somewhat parallel to this case. It was argued in February. This case was argued in March. On May 19th, the Court set this case down for re-argument. On June 7th, it decided the Rodrigue case. And I had a relatively leisurely opportunity over the summer to consider the Rodrigue opinion and its application to this case and I must confess that I have not been able to find out any basis upon which I can come to any other conclusion than that the Rodrigue opinion in effect decides this case. Mr. Coleman referred to some of the passages, I have marked half a dozen of them. On page 355 the Court said since the Seas Act does not apply of its own force under admiralty principles and since the Lands Act deliberately as to the application of admiralty principles to these noble structures, Louisiana is not ousted by the Seas Act. And on page 359, the Act regresses only those that's stemming from wrongful actions or omissions occurring on the high seas and these cases involve a series of events on artificial islands. Admiralty jurisdiction has not been construed to extend to accidents on piers, jetties, bridges or even ramps or railways running into the sea. And again on page 360, it was an island albeit an artificial one and the accidents had no more connection with the ordinary stuff of admiralties than do accidents on piers. And finally on page 361, in these circumstances, the Seas Act which provides an action in admiralty clearly would not apply under conventional admiralty principles since these were structured and careful scrutiny of the hearings shows that it was the view that maritime law was inapposite to these fixed structures and there is finally a considerable reliance on the fact that the employees on these structures are land based, that they go back and forth to their homes on land and of course that is equally applicable to the longshoreman and who are involved here. I will have only one final point to make which is with respect to the Calbeck case which is a rather broad and sweeping opinion but I would point out that it deals entirely with the water side of the Jensen line of demarcation. It says that on the water side, the Longshoreman Act is intended to be provided broadly and comprehensively. There is nothing in the decision and little in the language in the Calbeck opinion which has any reference whatever to the land side. This case involves something on the land side. It may be arbitrary to draw the line at that particular point. It is of course arbitrary to draw that any point the line might well had been sensible to have said that Longshoreman are governed by state acts but then we would have had seamen who were governed clearly by admiralty. We would have had men working side by side getting different benefits. If the Longshoreman's Act was extended to longshoreman no matter where they were, we would have all kinds of problems about how far inland extended and we would again have people working side by side getting different benefits. It's our view that the line had been clearly and firmly drawn, whether rightly or not at the edge of the water, either on the shore or on a pier at the time the 1927 Act was passed that that is the line which Congress adopted that this Court has repeatedly referred to the Jensen line of demarcation and that should be controlling here.
Warren E. Burger: Thank you, Mr. Solicitor General. Mr. O'Connor.
Ralph Rabinowitz: It's Mr. Rabinowitz, we switched around if Your Honor please.
Warren E. Burger: Yes, you may.
Ralph Rabinowitz: Mr. Chief Justice if it please the Court. Ralph Rabinowitz and I represent longshoreman Albert Avery. Simply this case deals with question of whether Congress meant to cover a longshoreman working issue from a dock when he was injured by ship's gear. Did Congress fully exercise its power? Its subject matter power over this area, that is the central question here and I take it that this question was answered in the Calbeck case when this Court was treating the very section the act that we deal with today and the Court said this, “The elaborate provisions the act, reviewed in the light of prior congressional legislation as interpreted by the Supreme Court leaves no room for doubt as it appears to us that Congress intended to exercise to the fullest extent all the power and jurisdiction it had over the subject matter.” It is sufficient to say that Congress intended the Compensation Act to have a coverage co-extensive with the limits of its authority.
Byron R. White: Would you have made the same argument prior to the Admiralty Extension Act?
Ralph Rabinowitz: Yes, Your Honor. I would.
Byron R. White: You have to say that I think.
Ralph Rabinowitz: No, the holding, I don't have the have to say the holding below of course is grounded on mainly two, it's an altered holding, if Your Honor please.
Byron R. White: Well, if you're going to rely on the Calbeck statement, you would have to.
Ralph Rabinowitz: Calbeck statement supports this, the subject matter of power, going back to Jensen, if Your Honor please. The reason that Jensen did not allow state act to apply its compensation to a longshoreman was because the state act was construed to deal with an area which was exclusively of federal confidence and the Court said this in Jensen, the work of a stevedore is maritime in its nature and his employment was a maritime contract. The rights and liabilities of the parties in connection there worked where it matters clearly within the admiralty jurisdiction. So, going to the first holding of the Fourth Circuit below, this is a matter that is exclusively of federal confidence under the constitution and Jensen said State Compensation Acts cannot apply because of that, because of the character of the longshoreman's employment. And so this meshes bringing it up to date with what was said in Calbeck. If this is an area of federal confidence and Congress meant to exercise its full power over that area, the character of the employment. Now, the second holding or the alternate holding below, Mr. Justice White was the Admiralty Extension Act argument and we know that the Admiralty Extension Act was a valid exercise of congressional power. And we know that both the Longshoreman's Act, if Your Honors please, and the Admiralty Extension Act both speak in identical terms, one says upon the navigable waters, the other says on navigable waters.
Byron R. White: What do you -- how do you characterize cases in this Court or others which say that injuries on piers are not within the admiralty jurisdiction?
Ralph Rabinowitz: There are pre-1927 cases that say that.
Byron R. White: And then what are those, what do those cases represent, an announcement as to what the limits of the admiralty jurisdiction are?
Ralph Rabinowitz: They are announcement of limits of the admiralty tort jurisdiction, that contract, not status, not the character of employment, pre-1927 but in Calbeck, if Your Honor please, Mr. Justice Brennan said expressly, “We do not think the act should be construed on the basis of pre-1927, admiralty tort cases which were restrictive, which did not cover dock side injuries” of Your Honor please. However—
Byron R. White: But the Court had said, I think prior to 1927 that the admiralty jurisdiction did not reach -- admiralty tort jurisdiction did not reach pier injuries.
Ralph Rabinowitz: That's correct, that's correct.
Byron R. White: And if you say that Calbeck said that Congress intended to utilize its full power.
Ralph Rabinowitz: Yes, sir.
Byron R. White: To the full extent of the admiralty jurisdiction. The admiralty jurisdiction wouldn't extend landward to reach pier injuries until and unless the limits of the admiralty jurisdiction were changed either by decision on this Court or by the Congress.
Ralph Rabinowitz: If you take your statement to me, just admiralty tort jurisdiction, yes Your Honor. But if you mean that as we all know, admiralty jurisdiction is not just tort based, it's status based or contract based or as Jensen said, character of employment based and that's what Congress wanted to feel the void with. Jensen had said to the state act “Don't touch this area because these are longshoreman, the character of their employment.” The employment relationship is such that they cannot be made to come under an area of exclusive federal confidence. Now, when --
Byron R. White: Well, the day after the Longshoreman's Act, you would have argued that a pier injury is covered by the Longshoreman's Act.
Ralph Rabinowitz: Yes, sir. On the first holding of the Fourth Circuit below, I will do it at least since the Admiralty Extension Act has --
Byron R. White: On -- how would you make the argument?
Ralph Rabinowitz: I would say this, the day after the act was passed, I would say this if Your Honor please, Jensen kept Longshoreman from recovering under state acts, why? Because they said we cannot touch this area, the character of their employment, the contract, it is a maritime contract which cannot be touched. It is an area of exclusive federal confidence. The Act in 1927 was passed to cover these men that the state acts were kept from helping. And Congress had tried two times to make a state act. Do this and the Court had struck that down in 1927. The Court came along and filled this of it. Congress came along and filled this void.
Byron R. White: There wasn't any void on the pier.
Ralph Rabinowitz: Yes, Your Honor, there was. In the case called, for example, there is certainly a void on the appeal. In the case called Johnson. If Your Honor please, excuse me for coming but I'll find the case in a moment. Anderson against Johnson, 224 New York 539. 120 Northeast 55 a 1918 case. A man has slipped down on the pier. He tried to get state compensation.
Byron R. White: Yes, but other cases have said that the state can go up to the gangplank.
Ralph Rabinowitz: Sir?
Byron R. White: Didn't other cases always state to go to the gangplank?
Ralph Rabinowitz: Some did but there was this area where nobody knew much what was happening, if Your Honor please and this was what Congress was trying to do. It was an area where some states were giving the man compensation on the dock. Some states were not giving any compensation on the dock. There was no firm line. For example in the Davis case, Mr. Justice Black recognize this and quoted from Jensen, he said this, quoting Jensen, Jensen had said “When a state could and when it could not grant protection under a compensation act was left as a perplexing problem for it was held difficult, if not impossible to define this boundary with exactness.” That's quoted exactly from Jensen and Mr. Justice Black in Davis re-quoted that and said “There isn't even a firm line when the state act could apply and so the twilight zone document was started.” Even before the Admiralty Extension Act in the O'Donnell case, this Court extended the Jones Act for seamen at shore. And look at the language of this Court when it's juxtaposed with the language of this Court in Calbeck, identical, almost identical language. In O'Donnell, the Court said, and this is before the Admiralty Extension Act. Congress, in the absence of any indication of a different purpose must be taken to have intended to make them applicable so far as the words and the constitution permit and to have given to them the full support of all the constitutional power it possessed. Hence, the act allows the recovery sought unless the constitution forbids it. If you just juxtapose that language with the language of this Court in Calbeck, it's almost identical language.
William J. Brennan, Jr.: But wouldn't the—wouldn't your argument mean that what you are arguing is that Congress intended by the Longshoreman's Act has covered all maritime related employment which they could have controlled like for a short based activities of longshoreman?
Ralph Rabinowitz: Yes, Your Honor and -- they're in the course of their employment.
William J. Brennan, Jr.: So you're arguing that Congress intended to not to fill a void but to duplicate state remedies.
Ralph Rabinowitz: In some cases, there would be a duplication, but in Calbeck, Mr. Justice Brennan said that he didn't -- he said there's no mutually exclusive area here. State compensation doesn't preclude federal compensation, it's not usually exclusive if Your Honor please. There isn't -- there can be an area of overlapping jurisdiction. However, you cannot allow federal confidence to be ruled by whether or not a state acts, whether or not a state acts. Let us say --
Byron R. White: You can agree with that and still ask what Congress intended to do in this act. Was it in just to fill a void or did it intend to duplicate?
Ralph Rabinowitz: No, sir. It intended to fill a void which Jensen had mainly started by precluding state compensation from longshoreman because of the character of their employment, maritime contract and if Your Honor please, this is clear from the legislative history. In the Senate Report, particularly, it stated just like that, it stated in these terms, if Your Honor please the report in Calbeck -- if I can find it in just a moment. The act is construed. The legislative history is construed just like this in the senate report.
William J. Brennan, Jr.: What page?
Ralph Rabinowitz: I'm looking at my brief on page 24, if Your Honor please, which is a blue brief which is quoting from Mr. Justice Sovalloff's review of the legislative history. Page 24 from the Senate Report on the bottom of the page starting with the indented paragraph, this is from the Senate report. If longshoreman could avail themselves of the benefit of State Compensation Laws, there would be no occasion for this legislation but unfortunately, they are excluded from these laws by reason of the character of their employment and they are not only excluded but the Supreme Court has more than once held that federal legislation cannot constitutionally be enacted that will apply state laws at this occupation. And there Congress recognized what the Court had done in Jensen. It had said because of the character of the longshoreman's employment, this is an area of federal confidence. In Jensen the Court was worried about lack of uniformity, long shoring having to do with the ships that go from port to port and they said this is an area of federal confidence. Going on to just the realities of this case, we have the very simple facts that this ship caused the injuries here and the case could go off on those facts alone but I suggest that the Court should construe the Act in a way that I have suggested in which Congress mentioned. Congress, if you read the debates for once, you find that the employers and the employee's representatives were unanimous in wanting a broad Act. They wanted an Act that would cover all the men, all the longshoremen in the course of their employment.They didn't want an Act that would be here a bit there a bit. And it's not so strange to cover the dock in the course of maritime employment. When a ship comes into a dock, a ship has always been held to assert thereby a possessory character over the dock. Way back in ex parte eastern, 95 U.S. 68, this Court held that mortgage had to be paid. But the ship actually started to have a proprietary right over the pier when it tied up to load and unload. The Court said this, access to the ship or vessel rightfully occupying a birth at a wharf for the purposes of loading and unloading is the undoubted right of the owner or charterer of such a ship or vessel for which such right has been secured. In other words, the character of that right is a possessory right of the ship and the ship caused the injuries in this case. Now, there has been some comment about whether a third party action has been filed in certain cases. In Avery's case, no third party action, no tort action has been filed. Avery wants his federal compensation. He was hurt in 1961. He's yet to get it. He's a longshoreman. The Act is called the Longshoreman's Act. The legislative history says we are passing this act to give the longshoreman the benefit of compensation and I suggest to this Court that there is no common sense reason and no reason in the legislative history or in the development of the cases in this Court to keep these longshoremen who are hurt by the ship because they happen to be standing on the dock from getting federal compensation as Congress intended. The petitioners would rely strongly on Swanson against Marra Brothers. Swanson was not a case under the Longshoreman's Act, simple as that. It was not a case in this Court where the man had asked for Longshoreman's Act benefits. He had sued the ship under the Jones Act and he had not sued his employer. Now, the Jones Act requires you to sue your employer and that's all that that case was about, simple as that. This case today is ruled by Calbeck. The language in Calbeck is clear, statements are not hard to understand, they are as follows, in some it appears that the Longshoreman's Act was designed to ensure that a compensation readily existed for all injuries sustained by employees on navigable waters and to avoid uncertainty as to the source, state or federal of that remedy, Section 3 (a) should then be construed to achieve those purposes. Plainly, the Court of Appeals interpretation fixing the boundaries of federal compensation or federal coverage where the outer limits of state confidence had been left by pre-1927 constitutional decisions does not achieve them. There's the Court expressly says you cannot fix the boundaries of federal conference on a basis of pre-1927 constitutional decisions, again, the Court says the line of demarcation is not a static one fixed by pre-1927 constitutional decisions. Again, reiterating what the Court said in Calbeck, Congress intended to exercise to the fullest extent all the power and jurisdiction it had over the subject matter. In the application of the act therefore, the brawl of his ground, it permits you to take it. Why didn't the Court, why didn't Congress include docks when it said dry docks and that's simple. Dry docks are in the main on dry land, they were then they are now, just about all dry docks are built on dry land, there wasn't any reason to include docks. The reason they had to put dry docks on there as an express addendum was because they were built on dry land and this is recognized by Judge Palmerri in a District Court case, the Arrien case, when he said Congress obviously expected docks to be covered by the words upon navigable waters but fear that dry docks might be held by the Courts to be without the Act. And therefore felt it advisable to expressly mention the latter.
Hugo L. Black: Is a dry dock on land or water?
Ralph Rabinowitz: The dry dock is almost always on land, if Your Honor please.
Potter Stewart: How is that -- how do you suppose a ship gets into a dry dock if it's on land?
Ralph Rabinowitz: Well, they have a pumping. I'm not an expert on dry docks, if Your Honor please but once I've seen the new PANU shipyard --
Potter Stewart: I served about four years at sea and I never saw a dry dock that is built on dry land.
Ralph Rabinowitz: If Your Honor please, the dry docks I've seen at the new PANU shipyard all built on dry land but there might be some, there might be some that are on water, they have some that pump water in and out. I've seen that but most of the ones I've seen have been on dry land. My experience however has been confined to the Virginia area. Now, the Rodriguez case--
Byron R. White: But it still would have been maritime employment, wouldn't it even if it was on dry land, which I doubt -- dry dock. Wouldn't it have been maritime employment within the reach of Congress under the admiralty jurisdiction?
Ralph Rabinowitz: Yes, Your Honor. It would.
Byron R. White: But why do they have to say dry docks -- to include dry docks if they already intended to exercise the full scope of the admiralty jurisdiction.
Ralph Rabinowitz: If Your Honor please, they wanted to be sure, they just wanted to be sure. Rodriguez has nothing --
Warren E. Burger: A dry dock doesn't really have much in common with an ordinary pier or wharf, does it in terms of its function? Totally different --
Ralph Rabinowitz: Not really, it's a different --
Warren E. Burger: Functionally a totally different thing, isn't it?
Ralph Rabinowitz: I would say so, yes Your Honor, it's a different angle. One is having to do with ship repair and construction, the other has to do with the live vessel loading and unloading. If Your Honor please, the Rodriguez case has nothing to do that I can see with this case, does not deal with the Longshore Act. It is a case having to do with the interaction of two other acts, the Death on the High Seas Act and the Outer Continental Shelf Lands Act. The Court recognizes that admiralty jurisdiction would obtain if a vessel caused injury as was the case here, a vessel caused injury here. The Court expressly recognize in Rodrigue if a vessel causes injury, admiralty jurisdiction obtains. The most important case, this Calbeck and I say Calbeck rules in the instant area. Nordenholt began, Nordenholt is a case, it's a relic before Congress acted. It's a relic before Congress action. It acted where the Supreme Court stated expressly that our result is depending upon the fact that there is no pertinent federal statute, there is no pertinent federal statute and so the question is, are we going to let this widow recover before the federal act or are we not let her recover because Jensen had said he's a longshoreman and the character of his employment keeps us from helping him, under the state act. Are we going to start something, are we going to retrogress from what we said in Jensen and start a local concern document, a doctrine which was a beneficent doctrine to let the state act go ahead and give the widow the compensation. With the addendum that, remember there's no federal statute, with sort of the Court asking Congress, get on the stick, come on, let's pass and act for these longshoremen. Nordenholt in 1922 and Congress responding thereafter. Similarly, T. Smith & Son which is relied upon by the petitioners. Again, a pre-1927 case, well perhaps it is a 1928 however the death occurred in 1925 and this is what the Arrien Court in the Second Circuit said about T. Smith & Son. The Court simply held the application of a State Compensation Statute, did not impose approached upon admiralty jurisdiction. Mr. Butler -- Mr. Justice Butler and understandably did not mention the Longshoreman's Act for the federal remedy was not yet effective. Finally, I say to this Court that the holding could be grounded on either of the two bases at the Fourth Circuit, Judge Sobeloff's opinion for his ground. One, the character of the employment is such that Congress meant to cover these injuries and Jensen had precluded state compensation in this area, Congress dealt with this area and used the full power at hand. Or secondly or alternatively the Court could go off on the holding on the basis of the Admiralty Extension Act. The Admiralty Extension Act says in its legislative history, senate report number 1593, second section pages one and two. For example, if a bridge or a pier or any person or property situated thereon is injured by a vessel, the admiralty courts of the United States do not entertain the claim for damages thus caused, this was before. The Bill under consideration would provide for the exercise of admiralty in maritime jurisdiction in all cases, all cases in the type of I've indicated. Now it's been said and argued that the Longshore Act wasn't mentioned in this act, neither was the warranty of seaworthiness, either was a whole range of acts of Congress. Certainly it wasn't mentioned because the legislative history says that the jurisdiction is covered in all these cases, all these cases. So, why would Congress then have to go down and say when we mean all cases, we mean the Longshore Act, the Bridge Act, the Rivers Act, the this Act. They didn't have to do that and the Admiralty Extension Act has been applied in various and sundry ways that were never mentioned expressly by Congress in the legislative history of the Admiralty Extension Act. I suggest to the Court that simply stated Calbeck rules that the Fourth Circuit's opinion embank should be affirmed that there is no good reason in the legislative history or in the common sense of the situation to exclude the very men who were meant to be helped by Congress from the benefits of this Act. There's nothing in the literal language that excludes the injuries herein. There's nothing in the legislative history that excludes the injuries herein. The only reason that Congress didn't use maritime jurisdiction rather than upon navigable waters is because they were afraid that maritime jurisdiction, that phrase was too restricted. They wanted the most comprehensive phrase they could find and this is clear on the legislative history. So, I respectfully suggest and pray that this Court affirm the decision of the Fourth Circuit Court of Appeals embank.
Warren E. Burger: Mr. O'Connor.
John J. O'Connor, Jr.: Mr. Chief Justice may it please the Court. As we understand the issue in these cases that is this, does the Longshoreman's Act cover injuries occurring “Upon the navigable waters of the United States.” Whether on the deck of a pier as well as on the deck of a ship when the precipitating instrumentality is a ship a word crane. By a solid five to two embank decision, the Court of Appeals for our Fourth Circuit held that such a pier side injury was compensable under the Act. The Four bases of the holding are set forth on pages 2 and 3 of our original brief. Former Chief Judge Sobeloff altered a masterful opinion which carefully considered and rejected the various arguments advanced before this Court today. These cases involved longshoreman members of a six team man gang, a definite work unit actively engaged in loading ocean going freighters. Their duties, there are rest periods, there are lunch periods, all require them to go back and forth between the vessel and the pier. They were doing the same work, they were receiving the same pay. They were exposed to the same risks. They were employed by the same corporation. The thrust of our argument is that they were entitled to the same workman's compensation. In the last analysis, as the Solicitor General indicated, we can reduce these cases to their simplest component. They revolve about the correct liberal interpretation of the phrase “Upon the navigable waters of the United States.” In the opinion authored by Judge Sobeloff, the Court of Appeals held that this term applied equally to all structures on navigable waters, whether the structure happen to be a ship or whether the structure happen to be a pier. A ship actually displaces more water than does a pier and someone on a pier is considerably closer to the level of navigable waters than someone on a deck of a ship which may be 15 to 50 feet above the surface of the navigable waters. Now, we hear and frequently this particular phrase as banded about, a pier is an extension of the land. We submit that that is inaccurate factually as it is historically. Logically and functionally, a pier is an extension of the ship. It is really nothing more than an oversized gangway. A pier cannot be conceived of except in connection with navigable waters and a ship. Servicing a vessel, facilitating its loading or discharging is its reson d'etre. In the words of Johnson Company versus Garrison, a 1914 decision of this Court, “The mooring of a vessel is as necessary as its movement.” And the United States District Court for the Southern District of California came to their common sense conclusion that a pier is an extension of a ship. In the immigration case of United States versus Yi Ni Hau, a 1952 decision reported in 105 F. Supp. at page 517, Going into the history of the situation, in the waiting decades of the 17th century, Louis XIV of France promulgated his Ordinans de la Marin. This held that admiralty jurisdiction enter Oliave extended to “Damages done to keys, dikes, jetties, palisades and other works.” Answer: “Wrongs committed upon the seas, at ports, harbors and beaches.” When the courts restrictively applied his instructions, the King issued a clarifying directive in 1694 known as the royal declaration. He reiterated the comprehensive scope of admiralty. Benedict on admiralty in a pre-1865 edition, I found this in my notes but I have not been able to confirm it but I'm sure it is accurate, in Section 107, advisers that at the time of the Commonwealth, admiralty jurisdiction included “All cases of prejudice to the banks of navigable rivers.” Or to “Docks, Wharfs and Keys.” And the language of commissions issued to admiralty judges read in part “All injuries done upon the public rivers and upon the shores and banks adjoining them.” And as we all know the lien of a war finger is recognized and enforced in admiralty. And they come down to a more recent decision out of this Court, United States versus Louisiana, 1967, the denial of that fictional theory, a pier is an extension of the land is implicit in this decision which held that the natural shoreline of 1845 was the correct line of demarcation for measuring the three marine lakes. The case decided that a jetty was not an extension of land to push the boundary beyond a normal three marine lake figure. A pier similarly does not extend the jurisdiction of a state. It still is measured from a natural shoreline with a high watermark. We're somewhat baffled at the position of the Solicitor General in these cases because we had occasion to read the splendid brief that he filed in the Calbeck case. On page 51 he had this to say, “Where injured employee sought recovery under the state act, the presumption of constitutionality would sustain and award. Similarly, the statutory presumption in the Longshoreman's Act could sustain and award in the very same circumstances. The two presumptions in effect gave the employee injured in the twilight zone an election to proceed under federal or state law.” Let's turn our attention to the philosophy of Workman's Compensation Law. Workman's compensation is a recognition for the protection and compensation of persons who are injured in work connected activities. Since the act is remedial legislation, it is to be applied with the broadest liberality to achieve its humanitarian purposes. The Court of Appeals has directed the entry of an award in these cases. As Judge Palmerri admonished in the Michigan Mutual case, a federal compensation should be upheld “If there is any reasonable argument for coverage under the act.” There is considerably more than a reasonable argument for coverage under the act in these cases. As this Court has admonished, we are to avoid “Harsh and in Congress results.” And as a decision in the Fourth Circuit urged, the acts beneficent purposes are not to be “Frustrated by needless refinements.” The philosophy of workman's compensation statutes is protected. Liability arises as an incident of the employment relationship. It is related to the contract of employment. It is not predicated on fault as in tort actions. Let's turn our attention to the actual wording of the statute. The key expression in these cases is “If a disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock).” The touch tone of coverage is this generic phrase, upon the navigable waters of the United States. Now, Congress could very easily have restricted the application of this law by a simple provision such as “occurring upon a ship (including the gangway)” but Congress did not. It used the very generic, broad terminology because it wanted everyone under the umbrella of its protection.
Thurgood Marshall: Couldn't Congress always also said in the parenthesis dock or dry dock?
John J. O'Connor, Jr.: Ah -- yes, sir. Obviously it could but as was pointed out, a pier is clearly upon navigable waters. A dry dock is not so clearly upon navigable waters. I understand they gauged out an area and they permit the waters to flow into that part that was formally dry land. But your pier is in a different category, it does not replace the navigable waters, the navigable waters flow freely underneath the deck of the pier.
Byron R. White: What about a bridge?
John J. O'Connor, Jr.: I think a bridge is on a different --
Byron R. White: A bridge over navigable waters but resting on piers.
John J. O'Connor, Jr.: Ah -- I think that's a little bit different situation Your Honor because a bridge connects two segments of land. So, a bridge is more closely alive with a brand operation.
Byron R. White: It may be that but in terms of the phrase, you're talking about a pond of navigable water. How would that as a difference from a pier.
John J. O'Connor, Jr.: I suppose technically Your Honor, upon navigable waters you could say that someone on a bridge is upon navigable waters just as someone on a pier. Just as the courts have held someone locked in an airplane in Dollarman case is upon the high seas although he is several thousand feet up in the air. Now, let's look at some illustrative situations. According to the petitioner's concept of the law, they can see that if the same load involved in these proceedings, A, struck and crushed a longshoreman in the hold, the injury would be covered by the act. B, struck and crushed the longshoreman on deck, the injury would be covered. C, struck and crushed the longshoreman on the gangway, the injury would be covered. D, knocked the longshoreman from the ship onto the pier, the injury would be covered. E, knocked the longshoreman on the pier into the water, again coverage. F, struck and crushed the longshoreman in a boat under the pier, he would be covered. G, lifted the longshoreman up and dropped him back to the pier, the injury would be covered. H, as we all know if we had a third party action, he could recover under the seaworthiness doctrine, under (Inaudible) and the extension of admiralty. Now under these factual situations, they admit coverage under the act. But if the longshoreman is struck on the pier and merely not horizontally but remains on the pier, his injury are dealt, according to them is not covered. Obviously Congress never intended such a bizarre result. At the earlier arguments, some members of the Court asked about situations of this type. We're sure that Congress be an equally and practically minded thought of similar situations and they devised an act intended to bring all of these men, these longshoremen within their protective coverage of the statute.
Thurgood Marshall: Suppose that derrick was on the building, instead of the ship.
John J. O'Connor, Jr.: Well, I would say -- I think Your Honor if you are injured on the pier, I think it's compensable but that brings us to the next point, our case has an additional maritime or admiralty nexus because the upending instrumentality was not on the shore but on the vessel itself.
Thurgood Marshall: And you say that solidly on the shore wouldn't make any difference?
John J. O'Connor, Jr.: I say as far as the liberal purpose of the Longshoreman's Act is concerned, Your Honor, I don't think it makes any difference.
Thurgood Marshall: I think if you are that liberal, it wouldn't. That's a problem. Isn't that what our problem is, is interpreting plain language?
John J. O'Connor, Jr.: No, sir. Because here, you have the additional connection with the admiralty activity. You have a ship ward claim.
Thurgood Marshall: The Longshoreman, it's in the same gang or the same boss doing the same work. But there's a derrick on the building and the derrick swings loose and it strikes one man near the ship, one man in the middle of the pier, another man up against the building. You say all three in the exact same position.
John J. O'Connor, Jr.: On the -- no, sir. If a man is on the building on the shore, I do not say he's covered. I say he's on the pier.
Thurgood Marshall: But he's on the water. He's still over the water.
John J. O'Connor, Jr.: Yes, sir. I say he's covered.
Thurgood Marshall: Even though he's up against the building?
John J. O'Connor, Jr.: Well, if he's upon navigable waters, yes sir because that's a touchstone of jurisdiction and Your Honor we have -- with reference to the basis of this law, we have the tort jurisdiction of admiralty and we have the contract jurisdiction of admiralty. The contract of course, pertains to the nature of the activity. But over and above the admiralty basis, we have the commerce clause and at the very first hearing conducted into the act, reference was made to the applicability of the commerce clause and we don't even theoretically need admiralty of waters because your commerce gives the Congress authority over the activity because of this interstate nature. We feel that the fallacy of the position may be brought out a bit more clearly if we use this illustration. If a group of men were employed to work in a warehouse and during the course of the employment, a load broke free and injured someone in the warehouse, the same load also injured someone on the steps of the warehouse and the same load rolled down and injured someone on the sidewall. All three members or members of the gang, members of this work detail and employed by this warehouse. The employer and the insurer came into Court and suggested that the man working on the sidewalk was not entitled to the same protection and the same law as his co-employees working in the building and on the steps over the gangway. I'm sure this Court would lose no time in stating that that is offensive to the due process provision. And the Court is held that this is a limitation not only in state laws but it should also be applied to federal statutes to prevent unfair discrimination. Perhaps, I should now respond to some of the remarks made by the other side during the presentation of their case. The initial concession made by Mr. Coleman was that the piers did extend out over the navigable waters. We feel this is disposative of the case. And he also admitted that the men passed freely back and forth between the ship and the pier. We cannot conceive that Congress intended to have a part time statute that applies as a pendulum. As you go aboard ship does not apply as you come back on the pier. Swanson versus Marra is already been commented upon. And attempt in that case was made to avail the injured longshoreman of the Jones Act. He could not file a suit under the Jones Act, he could not do it then, he cannot do it now. If that longshoreman were to assert his claim today, there's no question that he would be entitled to benefits under a third party action. With reference to the Jensen line of demarcation, precisely what is meant by that, I don't think it's entirely clear. As I understand the phrase, what is meant is this. The Supreme Court held that admiralty is exclusively within the province of the Federal Government. We must have uniformity in maritime law. Because of this requirement for a uniformity, the state, through its workman's compensation cannot invade the field of admiralty. So all Jensen said was that there is a limitation on the state, not to legislate in this field. It did not indicate that the Federal Government had no authority to legislate in this field even if there may have been today an overlapping with reference to pier injuries. And respecting the cases mentioned about pier injuries, the Jensen decision has been termed an ill starred one. Some commentators have felt that the Court had some qualms of conscience after deciding this case and depriving the widow of any compensation. Subsequently, in every case which came before this body, when there was an award in favor of the injured man or his widow and dependents, this Court upheld it. Mr. Justice Black devised this twilight zone. We also have the local but maritime. The Court sought devices to get around that so we don't feel that the holding that injuries on piers have been recognized as state convincible have any real bearing because they do not denude or do not deprive this Court of its right to legislate in a feel which peculiarly is its own. With reference to the legislative history, an excerpt was given from one of the reports. If you review the legislative history in detail, you will note that everyone connected with this particular problem was interested in obtaining full coverage. The Government representative, the man from the U.S. Department of Labor Statistics said he wanted the job covered, not the man when he was on a particular position. The representatives of the ILE, the union involved here, similarly said it doesn't make any difference where he performs his duties whether it's on the ship or on the pier. The union wanted them—all the men protected. Similarly, industry, one of the more protected. Gentlemen, I see that my time has run out. I urge that the decision of the lower Court be affirmed on the basis of the arguments advanced here and what is contained in our briefs and also in the opinion of former Chief Justice Sobeloff.
Warren E. Burger: Thank you, Mr. O'Connor. I think you've exhausted all of your time gentlemen. We thank you for your submission and the case is submitted.