Appeal by shipowner Cove Tankers Corp. from a judgment of the United States District Court for the Southern District of New York, Leonard B. Sand, J., granting defendant employer's motion for judgment on the pleadings in action seeking indemnification for payment made after one employee was killed and another injured while repairing shipowner's vessel on the high seas as barred by the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 905(b).
Feinberg, Chief Judge, Winter, Circuit Judge, and Jacob Mishler,*fn* District Judge.
This appeal raises the issue whether on the facts before us the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. (Act), applies beyond the territorial waters of the United States to cover ship repairmen injured or killed while working on a ship on the high seas. Judge Leonard B. Sand of the United States District Court for the Southern District of New York, in an opinion reported at 528 F. Supp. 101, concluded that the Act covers these employees. We affirm the judgment, but on narrower grounds than those relied on by the district court.
Two employees of defendant United Ship Repair, Inc. (employer) were repairing the boilers of a ship owned by plaintiff Cove Tankers Corp. (shipowner) while the vessel was underway on a voyage from Philadelphia to New York. During the voyage, the vessel deviated from its scheduled course onto the high seas 135 miles offshore. There, we are told, a boiler exploded and one ship repairman was killed and another injured. The injured employee and the next of kin of the deceased employee brought damage claims against the shipowner, which settled the claims for almost $300,000. Thereafter, the shipowner sought indemnification for that amount and for legal fees and expenses from the employer, which had compensated the claimants under the Act. The district court granted judgment on the pleadings, finding that the phrase "injury occurring upon the navigable waters of the United States," 33 U.S.C. § 903(a), covered employees repairing ships on the high seas, and that therefore the shipowner's right of indemnification was barred by the Act, 33 U.S.C. § 905(b).
On appeal, the shipowner renews the argument it made in the district court, that the high seas are not "navigable waters of the United States." Not surprisingly, the employer argues that the contrary view of the district court is correct. The employer also presses two arguments that the district court did not address: First, in defining employer, 33 U.S.C. § 902(4), the Act includes maritime workers employed "in whole or in part, upon the navigable waters of the United States" (emphasis supplied); therefore, repairman on a voyage occurring in part on territorial waters are covered for the whole voyage. Second, the situs requirement of the Act has been replaced by a "functional" test and that "any harborworker including a ship repairman," 33 U.S.C. § 902(3), is covered without regard to the place where the injury occurred. Sea-Land Service, Inc. v. Director, Office of Workers' Compensation Programs, 540 F.2d 629, 636 (3d Cir. 1976). The parties agree that the only issue is whether on these facts the Act applies. If it does, the shipowner concedes that the Act bars it from obtaining indemnification from the employer.
Because we choose a narrower path to reach the same result, we discuss only briefly the reasoning and conclusions expressed by the district court in its careful opinion. The district court's analysis of the Act began with the section entitled Coverage, 33 U.S.C. § 903(a), which states in pertinent part:
Compensation shall be payable . . . but only if the disability or death results from an injury occurring upon the navigable waters of the United States. . . .
At first reading, it is tempting to equate the phrase "navigable waters of the United States" with coastal or territorial waters, a reading reinforced by the Act's definition of United States found at 33 U.S.C. § 902(9).
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.
This intuitive reaction is strengthened by the Supreme Court's definition of high seas as those outside the territorial sea. Louisiana Boundary Case, 394 U.S. 11, 22-3, 89 S. Ct. 773, 22 L. Ed. 2d 44 (1969).*fn1 However, the district court's deeper analysis disclosed an unexpected difference of opinion expressed in treatises; the district court concluded that the authorities analyzed pointed to the conclusion that the high seas are included in "navigable waters of the United States." The district court noted that the classic definition of that term is found in The Daniel Ball, 77 U.S. 557, 563, 19 L. Ed. 999 (1871): "[Waters] constitute navigable waters of the United States within the meaning of the Acts of Congress . . . when they form . . . a continued highway over which commerce is or may be carried on with other States or foreign countries. . . ." 528 F. Supp. at 106-7 & nn.8 & 9. Proceeding thereafter to the Administration section of the Act, 33 U.S.C. § 939, the district court found the high seas mentioned for the first and only time as follows:
(b) The Secretary shall establish compensation districts, to include the high seas and the areas within the United States. . . . Judicial proceedings . . . 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 ...