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Arbeeny v. McRoberts Protective Agency and State Insurance Fund

UNITED STATES COURT OF APPEALS, SECOND CIRCUIT


decided: March 9, 1981.

SAMUEL ARBEENY, AND DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, PETITIONERS,
v.
MCROBERTS PROTECTIVE AGENCY AND STATE INSURANCE FUND, RESPONDENTS ; SAMUEL ARBEENY, PETITIONER, V. MCROBERTS PROTECTIVE AGENCY AND STATE INSURANCE FUND AND DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, RESPONDENTS ; MICHAEL CONLON, PETITIONER, V. MCROBERTS PROTECTIVE AGENCY AND STATE INSURANCE FUND AND DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, RESPONDENTS .

Petitions for review of orders of Benefits Review Board which held that petitioners were not "engaged in maritime employment" as defined in the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 902(3), and thus not entitled to compensation for injuries suffered while working as pier guards on the Brooklyn Waterfront. Petitions for review granted and orders of Benefits Review Board set aside.

Before Mansfield and Mulligan, Circuit Judges, and Pollack,*fn* District Judge.

Author: Mulligan

These petitions for review of an order of the Benefits Review Board, United States Department of Labor (Board) pose the question whether the petitioners Samuel Arbeeny and Michael Conlon were engaged in "maritime employment" within Section 2(3) of the Longshoremen's and Harbor Workers' Compensation Act (Act), 33 U.S.C. §§ 901-950, and are thus entitled to compensation for injuries suffered while working as pier guards on the Brooklyn Waterfront. A majority of the Board held that neither came within Section 2(3) because their duties "lacked the realistically significant relationship to maritime activities involving navigation and commerce over navigable waters."*fn1 We grant the individual claimants' petitions for review and set aside the orders of the Board.

Both petitioners were injured on waterfront piers in the course of their employment as pier guards. There is no question therefore that the "situs" requirement of 33 U.S.C. § 903(a) has been satisfied.*fn2 The issue is whether they were within the "status" requirement of the Act which by the 1972 amendments thereto extends coverage to "any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker ...." Act § 2(3), 33 U.S.C. § 902(3).

At the time of their injuries both petitioners were employed by the respondent McRoberts Protective Agency. Their primary duty as pier guards was to insure the protection of cargo on the pier, dock and adjacent areas of marine terminals against theft, pilferage, vandalism and fire. While most of their surveillance activity was performed on the pier, at times petitioners were obliged to board vessels and position themselves on gangways, decks or in ships' hatches or holds. When valuable cargo was involved they were required to go below the deck to ensure the safety of the cargo. On occasion Arbeeny counted the cargo with a "checker" whose responsibility was to check and record the cargo removed from the hatch. Conlon in the year before his injury boarded docked ships almost nightly to deliver or obtain manifests or invoices which in the latter case he then brought to stevedores or other dockside personnel responsible for checking shortages in the shipments. Conlon was also responsible for the inspection of mooring lines to determine whether the ship was securely moored to the dock.

It has been suggested that in order "to avoid the judicial morass involved in determining whether each worker in any of "the almost infinite range of conditions of waterfront employment' is or is not involved in the process of unloading vessels," the Act should be construed to cover all waterfront employment. Warren Bros. v. Nelson, 635 F.2d 552, 556 (6th Cir. 1980) (quoting G. Gilmore & C. Black, The Law of Admiralty 430 (2d ed. 1975)). This court has rejected this interpretation, which would in effect read the "status" requirement out of the Act. Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 56 (2d Cir. 1976), aff'd sub nom. Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 97 S. Ct. 2348, 53 L. Ed. 2d 320 (1977). Nonetheless the language of the 1972 Act "is broad and suggests that we should take an expansive view of the extended coverage. Indeed, such a construction is appropriate for this remedial legislation." Northeast Marine Terminal Co. v. Caputo, supra, 432 U.S. at 268, 97 S. Ct. at 2359.*fn3 It is also clear that the specific occupations mentioned in Section 2(3) do not exhaust its scope. P. C. Pfeiffer Co., Inc. v. Ford, 444 U.S. 69, 100 S. Ct. 328, 62 L. Ed. 2d 225 (1979). Longshoremen, ship repairmen, shipbuilders and shipbreakers comprise only "a part of the larger group of activities that make up "maritime employment.' " Id. at 77 n. 7, 100 S. Ct. at 324 n. 7, see Trotti & Thompson v. Crawford, 631 F.2d 1214, 1220 (5th Cir. 1980).

The fact that the petitioners here were not job designated as longshoremen is certainly not dispositive of the issue. Neither is the fact that they did not physically load or off load cargo essential. The checker found covered by Section 2(3) in Northeast Marine Terminal Co., Inc. v. Caputo, supra, was assigned the task of checking and marking items of cargo as they were unloaded from a container. The Court found that "(t)his task is clearly an integral part of the unloading process ...." 432 U.S. at 271, 97 S. Ct. at 2361. Similarly here the activities of the petitioners were an integral part of the loading and unloading of cargo. Pilferage of cargo is endemic at piers. The loading and unloading process presents innumerable opportunities for theft. The major function of these petitioners was to protect against the loss of cargo which in our view unquestionably serves a maritime purpose the safe transit of goods shipped by sea. The pervasive surveillance conducted by guards on the pier and occasionally on board ship is essential to the longshoring operation and is indeed required by the International Longshoremen's Association during the loading and the unloading process.*fn4

Because we find both claimants to be engaged in maritime employment, we grant their petitions for review and set aside the orders of the Board.


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