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COVE TANKERS CORP. v. UNITED SHIP REPAIR

September 10, 1981;

COVE TANKERS CORP., Plaintiff,
v.
UNITED SHIP REPAIR, INC., Defendant



The opinion of the court was delivered by: SAND

Defendant's motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) presents a question of first impression, namely whether injury and death occurring on the Atlantic Ocean 135 miles off the coast of the United States, meet the situs requirement of section 3 of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 903(a) (hereinafter "LHWCA"), which limits coverage to "injury occurring upon the navigable waters of the United States." Defendant argues that the act covers such injury, and that consequently this complaint of a shipowner who has already paid settlements to an injured worker and the family of a deceased worker and now seeks indemnification from the workers' employer must fail as a matter of law, inasmuch as Congress in the 1972 amendments to the LHWCA abolished indemnification actions brought by the shipowner against an injured worker's employer, see 33 U.S.C. § 905(b). Plaintiff argues that the LHWCA does not cover such injury.

 After many years of litigation and numerous judicial decisions devoted to locating the line demarking the landward reach of the LHWCA, plaintiff would have us now find a line three miles off the coast of the United States demarking the seaward reach of the act. Plaintiff would have us hold that these two injured workers, though covered by the LHWCA workmen's compensation system when the vessel they were repairing left port and ventured out into the Atlantic Ocean, ceased to be covered when the vessel crossed a line three miles offshore while deviating for testing purposes. We do not read the act this way, and decline to find such a line.

 The essential facts are not in dispute. Plaintiff Cove Tankers Corp. (hereinafter "Cove") was at the time of the accident the owner of the United States flag vessel S/S Cove Communicator. The accident occurred aboard ship on or about April 9, 1977, while the ship was en route from Philadelphia to New York. At the time of the accident, the ship was making a deviation of 135 miles offshore *fn1" for purposes of testing.

 The accident killed Nicos Georgopoulos and injured Christos Roussos. At the time of the accident, Georgopoulos and Roussos were functioning as ship repairers aboard the vessel and were employees of defendant United Ship Repair, Inc. (hereinafter "United").

 Roussos commenced suit against the shipowner, Cove, in the United States District Court for the Eastern District of Virginia to recover damages for his injury, and that claim, with medical and other expenses, was settled for $ 196,455.74. *fn2" The next of kin of Georgopoulos also made claims against Cove for his alleged wrongful death, see Complaint P 7, and these, together with funeral and burial expenses, were settled for $ 72,190.58.

 Cove then brought the current case against United for the amount of the two settlements, and for plaintiff's legal and other expenses amounting to over $ 25,000 allegedly incurred in defending the Roussos suit and obtaining the settlements. *fn3" Cove has alleged that the repairmen were "injured while doing said work, but not in a reasonably competent, safe, skillful, or workmanlike manner." Complaint P 5. Plaintiff states that the total amount for which it claims, $ 375,000, constitutes amounts "paid and incurred as a result in whole or in part of defendant's negligence, breach of contract, and/or breach of warranties to plaintiff." Id. at P 11.

 In opposition to defendant's motion, plaintiff argues that the accident occurred beyond "the navigable waters of the United States" within the meaning of the LHWCA so that the act does not apply. Plaintiff additionally argues that defendant's liability to the workers was under the New York Workmen's Compensation Law and that such state law does not shield the employer from liability to the plaintiff shipowner. *fn4"

 This case thus presents a question of statutory interpretation: whether the situs of injury, the high seas, precludes LHWCA coverage. This is the only respect in which LHWCA coverage is put in dispute. The parties are in agreement that apart from the injury situs question, the accident here falls within the purview of the LHWCA. *fn5"

 Counsel have informed us that this is a cast of first impression, and indeed we find no federal court to have analyzed the question of LHWCA coverage of the high seas. *fn6" Cf. Szumski v. Dale Boat Yards, Inc., 90 N.J.Super. 86, 216 A.2d 256 (Super.Ct.App.Div.1966) (LHWCA covers injury on the high seas, in the Atlantic Ocean) rev'd on other grounds, 48 N.J. 401, 226 A.2d 11, cert. denied, 387 U.S. 944, 87 S. Ct. 2077, 18 L. Ed. 2d 1331 (1967). In contrast, the landward extent of the act's coverage has been much litigated and analyzed. It is the recently expanded practice of sending repairmen to sea with a vessel in order for the ship to avoid costly time laid up in port which brings this question before us. This practice assures that although other federal courts have not had to face the high seas issue in the fifty-four years since the 1927 enactment of the LHWCA, the question will arise again.

 The LHWCA as originally enacted set up a workmen's compensation system covering longshoremen and including ship repairmen, injured or killed in the course of their work. However, among the conditions of coverage set forth in the act was a condition respecting the situs of injury:

 
(a) Compensation shall be payable under this Act in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) ....

 Sec. 3.

 The 1927 act included two other provisions relevant to its geographical coverage. In its "Definitions" section, it stated: "The term "United States' when used in a geographical sense means the several States and Territories and the District of Columbia, including the territorial waters thereof." Sec. 2(9). Lastly, in the "Administration" section of the act, it was provided that:

 
(b) The commission shall establish compensation districts, to include the high seas and the areas within the United States to which this Act applies, and shall assign to each such district one or more deputy commissioners, as the commission deems advisable. Judicial proceedings under sections 18 and 21 of this Act in respect of any injury or death occurring on the high seas shall be instituted in the district court within whose territorial jurisdiction is located the office of the deputy commissioner having jurisdiction in respect of such injury or death (or in the Supreme Court of the District of Columbia if such office is located in such District).

 Sec. 39.

 In 1972, Congress enacted substantive revisions to the LHWCA, including a change in the first of these three provisions. The other two remained unchanged. The change made in Sec. 3(a) added language so that it now reads in relevant part:

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

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