933" in the first sentence of § 905(b), the right of § 905(b) to sue vessel owners who are also employers must be limited to longshore persons and not extended to harbor workers, like Guilles, who are not longshore persons.
Although Sea-Land's argument as understood by the Court is not wholly illogical, it is at best strained. The manner in which Sea-Land would like this Court to distinguish the rights of other harbor workers who are not longshore workers under § 905(b) is not supported by Supreme Court precedent or the language of the section itself. Well settled principles of statutory construction and applicable case law ineluctably lead to the conclusion that a harbor worker cook who receives worker compensation benefits under § 904 of the Act, may also bring a direct negligence action under § 905(b) against a vessel owner who is also its employer.
A. The Longshore and Harbor Worker's Compensation Act
A brief summary of the LHWCA's history is useful to understand Sea-Land's tortuous interpretation of the Act.
The LHWCA was signed into law in 1927, following the Supreme Court decisions in Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S. Ct. 524, 61 L. Ed. 1086 (1917), Washington v. W.C. Dawson & Co., 264 U.S. 219, 44 S. Ct. 302, 68 L. Ed. 646 (1924), and Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S. Ct. 438, 64 L. Ed. 834 (1920), where the Supreme Court held that states were without constitutional authority to provide worker compensation benefits to longshore persons injured on a gangplank between the ship and the pier, see Jensen, supra, and where the Court barred, as an unlawful delegation of legislative power, Congress' attempt to authorize states to expand their worker compensation coverage seaward from the pier. See, Dawson, supra, and Stewart, supra; see generally, Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 256-57, 97 S. Ct. 2348, 2354, 53 L. Ed. 2d 320 (1977).
Congress enacted the LHWCA to serve as the exclusive remedy for longshore persons and harbor workers injured on navigable waters, i.e., those whose injuries occurred on the gangplank or at any other point "seaward" of the gangplank. Caputo, 432 U.S. at 258-59, 97 S. Ct. at 2354. The Act created a worker compensation scheme that provided coverage to injured employees without regard to employer liability. Jones & Laughlin Steel Corporation, 462 U.S. 523, 528, 103 S. Ct. 2541, 2546, 76 L. Ed. 2d 768 (1983). coverage under the Act was determined by reference to the location, i.e. on navigable waters, where the injury took place or, as the courts would later referred to it, the "situs test." Caputo, 432 U.S. at 267-68, 97 S. Ct. at 2359-60.
This situs approach afforded compensation only to those longshore persons who were fortunate enough to be on the sea-side of the gangplank, see Nacirema Operating Co. v. Johnson, 396 U.S. 212, 218-20, 90 S. Ct. 347, 24 L. Ed. 2d 371 (1969) (coverage of the LHWCA ends at the water's edge), while abandoning those on the land side of the gangplank to what was then perceived as inadequate state compensation systems. Caputo, 432 U.S. at 262-63, 97 S. Ct. at 2356-57.
As dissatisfaction grew with the limited sea-ward coverage of the LHWCA, the Supreme Court was expanding the remedies available to employees covered by the Act.
The first step was taken by Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099 (1946), where the Supreme Court recognized the right of an individual performing the traditional stevedoring work of a longshore person to bring an action for unseaworthiness against a vessel owner as a third person when the vessel owner did not employ the longshore person directly but contracted with an independent stevedoring company that employed the longshore person. This case was followed by Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S. Ct. 232, 100 L. Ed. 133 (1956), where the Supreme Court held that an independent stevedore company which employed a longshore person and paid workers compensation for an injury to that employee could still be sued by a vessel owner for indemnification of the damages paid to the employee for the unseaworthiness of the vessel caused by the services provided by the stevedoring company. This result was consistent with the interpretation of many state courts that their worker compensation laws did not bar third party complaints against employers. Id. 350 U.S. at 128-31, 76 U.S. at 234-35. Finally, in Reed v. Steamship Yaka, 373 U.S. 410, 83 S. Ct. 1349, 10 L. Ed. 2d 448 (1963), the Court held that a longshore person employed by a stevecore company could bring an action directly against the vessel even when the employee's injuries occurred on the vessel while the stevedore company owned and operated the vessel under a bareboat charter.
B. The 1972 Amendments
In 1972, Congress overhauled the LHWCA. The 1972 Amendments sought to "raise the amount of compensation available under the LHWCA, to extend coverage of the Act to include certain contiguous land areas, to eliminate the longshoremen's strict liability seaworthiness remedy against shipowner, to eliminate the shipowner's claim for indemnification from stevedores, and to promulgate certain administrative reforms." Director, OWCPU v. Perini North River Associates, 459 U.S. 297, 313, 103 S. Ct. 634, 645, 74 L. Ed. 2d 465 (1983). In addition to expanding landward the employees covered by the Act in § 902(3), the existing exclusive worker compensation remedy language of § 905 was placed in subsection (a) and subsection (b) was added.
1. Landward Expansion Under the "Situs" and "Status" Tests
As noted, pre-1972, employees were covered by the Act only if they were on the sea-side of the gangplank when the accident occurred. In order to correct this inequity, Congress expanded the situs coverage of the Act landward under § 903(a) to include "any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling or building a vessel." 33 U.S.C. § 903(a) (1990 ed., and West Supp. 1992). In addition, the 1972 Amendment in § 902(3) defined employee to mean "any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operation, and any harbor worker including ship repairman, shipbuilder, and shipbreaker." 33 U.S.A. § 902(3) (1970 ed. and Supp. 1973) (emphasis supplied). This language created a new "status" test that supplemented the old "situs" test. See Herb's Welding, Inc. v. Gray, 470 U.S. 414, 415-16, 105 S. Ct. 1421, 1423, 84 L. Ed. 2d 406 (1984); Caputo, 432 U.S. at 264-65, 97 S. Ct. at 2357; Triguero v. Consolidated Rail Corp., 932 F.2d 95, 99 (2d Cir. 1991).
The expanded coverage of the 1972 LHWCA extends to all persons in maritime employment except those individuals enumerated in 903(3)(A)-(H) -- a list which Congress has explicitly admonished the courts not to read expansively. U.S.Code Cong & Admin.News 1984, pp. 2736-2740. Although, arguably, Guilles as a relief cook could be considered a crew member subject to the Jones Act and not the LHWCA, see McDermott International, Inc. v. Wilander, 498 U.S. 337, 112 L. Ed. 2d 866, 111 S. Ct. 807 (1991) ("A cook and a steward are seamen in the sense of maritime law, although they have particular duties assigned to them") and compare 902(3)(G) ("the term 'employee' . . . does not include . . . (G) a master or member of a crew of any vessel . . . ."), the parties have expressly stipulated that Guilles is not a crew member but is a harbor worker under the LHWCA.
Some Fifth Circuit precedent would suggest that an employee who is not assigned permanently to a particular vessel or who does not work substantially on one vessel is not a seaman under the Jones Act. See, e.g., Barrett v. Chevron U.S.A., Inc., 781 F.2d 1067, 1072-74 (5th Cir. 1986); Offshore Co. v. Robison, 266 F.2d 769, 779 (5th Cir. 1959). The Fifth Circuit in Bach v. Trident Steamship Co., 920 F.2d 322, vacated and remanded, 111 S. Ct. 2253, aff'd, 947 F.2d 1290 (5th Cir. 1991), cert. denied, 112 S. Ct. 1996 (1992), however, has held that an employee who does work on various vessels which are commonly owned can qualify as a seaman under the Jones Act. Because Guilles is a maritime worker covered by the terms of the LHWCA, this Court has no compelling reason to decide whether a relief cook is a seaman under the Jones Act or to reject the stipulation of the parties that Guilles is covered by the LHWCA.
There is some indication in the legislative history of the 1972 Amendments that suggests that Congress intended in the 1972 Amendments to the Act to cover only longshore persons involved in stevedoring services and as ship builders, repairers and breakers. House Report No. 92-1441 (1972) states, in relevant part, for example, that: "The Committee does not intend to cover employees who are not engaged in loading, unloading, repairing, or building a vessel, just because they are injured in an area adjoining navigable waters used for that activity." (emphasis supplied). See S. Rep. No. 92-1125, at 1 (1972); H.Rep. No. 92-1441 (1972), U.S.Code Cong & Admin.News 1972, p. 4708. The Supreme Court, however, has addressed the issue of Congress' intent and the language of the House Report quoted above and concluded that it does not support the proposition that the 1972 Amendments to the LHWCA intended to limit or did limit coverage only to such longshore persons. Director, OWCPU v. Perini North River Associates, 459 U.S. 297, 103 S. Ct. 634, 74 L. Ed. 2d 465 (1983) (hereinafter Perini).
In Perini, a worker in charge of a cargo barge used to unload materials for insertion in the foundation of a sewage treatment plan extending over the Hudson river in Manhattan was giving instructions to a crane operator when the crane line snapped and struck him. The worker sought coverage under the Act. Both the Administrative Law Judge and the Review Board denied coverage and the Second Circuit affirmed.
The Supreme Court reversed. Reviewing the language of the House Report previously quoted, the court concluded that Congress did not intend to withdraw coverage for those employees who were covered before 1972 under the Act, see 459 U.S. at 315-18, 103 S. Ct. at 646-47, but merely intended to "extend coverage to additional workers," see 459 U.S. at 316, 103 S. Ct. at 647, 74 L. Ed. 2d 465, by adding a status requirement which "defined the scope of the extended landward coverage." Id., 459 U.S. at 317-18, 103 S. Ct. at 647. Underscoring that the Act "must be liberally construed," see 459 U.S. at 315, 103 S. Ct. at 646, 74 L. Ed. 2d 465, the Court went on to hold that non-longshore persons who were nevertheless maritime employees enjoyed coverage under the Act when they suffered injury on navigable waters. If a maritime employee is injured on land, however, the employee must be a longshore person to be covered by the Act but maritime employees who are not longshore persons are covered by the Act if injured on navigable waters and are not otherwise excluded by § 902(3) of the Act. This Court concludes, therefore, like the parties, that shoregang harbor workers like Guilles who are injured from a gangplank, are covered by the LHWCA.
2. Application of Section 905(b)
Sea Land insists that in order to give meaning to the "third party" wording of § 905(b)'s first sentence, this Court must interpret the phrase to mean that Guilles as a harbor worker who is not a longshore person can not sue a vessel owner who is also his employer. Sea-Land argues that since the intent of Congress in § 905(b) was to codify and set limits to the Supreme Court decisions that had created negligence causes of actions for longshore persons, § 905(b) should be limited to longshore persons and not expanded to harbor workers.
Section 905(b)'s "third party" language, however, gave rise to considerable litigation about whether longshore persons doing stevedoring work could sue their employers who were vessel owners. Vessel-owner employers argued that the language of the Act precluded employees from bringing a direct negligence cause of action against them. The issue was laid to rest in Jones Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 532, 103 S. Ct. 2541, 2548, 76 L. Ed. 2d 768 (1983), where the Supreme Court held that an employee could bring a direct action against an employer who was also a vessel owner despite the "third party" language of § 905(b).
The Court reasoned that if Congress intended to bar such suits, it would not have needed the second sentence of § 905(b) which specifically contemplates the situation that some of the persons covered by the Act and by the first sentence of § 905(b) are involved in stevedoring services and are employed by the vessel: "If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services."
Despite the clear language of the statute, well settled principles of statutory construction and relevant Supreme Court case law, Sea-Land would still have this court ignore the beginning words of § 905(b), i.e. 'In the event of injury to a person covered under this chapter caused by the negligence of the vessel, then such person, . . ., may bring an action," and hold that § 905(b) permits only longshore persons, and not other harbor workers covered by the Act, to bring negligence suits against their employers who are vessel owners. Sea-Land argues that it is the second sentence of § 905(b) which permits a court to infer that longshore persons are exempted from the third party language of the first sentence but maintains that to give meaning to the words "third party" in the first sentence, all other persons covered by the Act must not be permitted to bring suit against their vessel owner employer. Sea-Land's interpretation is simply disingenuous.
This Court is guided in its analysis by principles of statutory interpretation recently summarized by the Second Circuit in United States v. Koehler, 973 F.2d 132, 134 (2d Cir. 1992):
The "starting point in every case involving construction of a statute is the language itself." When we find the terms of the statute unambiguous, judicial inquiry is complete except in rare and exceptional circumstances.
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