CALBECK v. TRAVELERS INSURANCE CO.

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Argument of Cox

Chief Justice Earl Warren: Number 532, C.D. Calbeck, Deputy Commissioner, et al., Petitioners, versus Travels -- Travelers Insurance Company et al.

Mr. Solicitor General.

Mr. Cox: Mr. Chief Justice, may it please the Court.

These are two cases hereon certiorari to the Court of Appeals to the Fifth Circuit.

The question presented is whether injuries sustained by shipyard employees while working on vessels under construction but which have been launched and are float on navigable waters are compensable under the Longshoremen's and Harbor Workers' Act.

The facts on which this question arises differ in immaterial respect for case to case but they are substantially identical, indeed identical in all material respect and the Travelers Insurance case, the first case, will serve to illustrate both.

The insured -- the Levingston Shipbuilding Company operated the shipyard on the Sabine River which flows between Texas and Louisiana.

It's engaged both in new constructions of new vessels and in the repair of vessels which are previously been put into service.

Unquestionably, many of its employees are engaged in maritime employment and therefore undeniably, Levingston was an employer covered by the Longshoremen's Act.

McGuyer, the employee who was killed was employed by Levingston as a welder to work indiscriminately at repairing vessels which had been in service or taken out of service for repairs and also at completing vessels which were under construction.

On the day in question, he was working on the superstructure of a building rig, a vessel which had been launched and was floating in the navigable waters of the Sabine River but it had not been completed and therefore had not been put into service.

There was an explosion and the cause of which is immaterial, McGuyer suffered very severe injuries of which a week later caused his death.

In seeking compensation for these injuries sustained in the course of his employment, McGuyer's family had to choose between seeking compensation under the federal statute or under the Texas Act which has agreed would've been the applicable state statute even though the injury happened to occur over on the Louisiana side of the river.

Under the Texas Act, the widow would receive $35 a week for 360 weeks.

That would be the maximum, or a total of $12,600.

Under the federal statute, the widow would receive in her own right something over $28 a week during her widowhood and an additional $12.15 a week for each of two children on account of their minority.

This would make a total maximum compensation to Mrs. McGuyer and the children of $83,500 or approximately six and half times to some payable under the Texas Act.

Mrs. McGuyer in fact filed claims under both the Texas and federal statutes but the Texas claim was expressly made subject to the claims under the Federal Act.

The Deputy Commissioner, conducting a hearing on the claim under the Federal Act at first found that this was not a covered injury.

The case was then carried by the widow to the District Court and while it was pending there, the Deputy Commissioner asked to have it remanded.

It was remanded.

The Deputy Commissioner then made a new finding and then awarded compensation to the widow and minor children.

That award was taken to the District Court by the Insurance Company, the respondent here.

The District Court ruled that they're -- McGuyer had been engaged in covered employment and that therefore the injury was compensable under the federal statute.

The gist of its opinion is at page 40 of the record.

The Court said in a short opinion, “Here, McGuyer's death arose out of it in the course of his employment and since Levingston had other employees engaged in maritime employment and since McGuyer's death admittedly occurred upon navigable waters of the United States.”

His widow and children are entitled to compensation under the Act.

So you're not -- the District Court made the right to compensation turn on three facts which we think are decisive.

First, that the Levingston Shipbuilding Company, the employer, admittedly had the employees engaged in maritime employment.

Second, that the injury occurred in the course of McGuyer's work and as a result of his employment.

And third, that it occurred upon navigable water and we think were those three facts here the Federal Act applies.

Justice Potter Stewart: That was -- that was pretty much the holding of O'Rourke case, was it not?

Mr. Cox: That seems to us to be the holding of the O'Rourke case.

Justice Potter Stewart: An opinion (Voice Overlap) --

Mr. Cox: It is the holding numeric on the Dixie Sand and Gravel case --

Justice Potter Stewart: On the Sixth Circuit.

Mr. Cox: -- Sixth Circuit 1958 and we think those cases to assume I will state my whole argument now (Voice Overlap) --

Justice Potter Stewart: The O'Rourke case, if I have it in mind, that was the opinion written by Mr. Justice Reed, was it not?

Mr. Cox: Yes, it was.

Justice Potter Stewart: That involved a sort of conflict between this federal statute and the Federal Employers Liability Act.

Mr. Cox: That's true.

It was not a question of whether the --

Justice Potter Stewart: State --

Mr. Cox: -- State Act could apply.

Of course, as Your Honor will recall the day --

Justice Potter Stewart: That was a --

Mr. Cox: -- Federal and State Acts are not mutually exclusive --

Justice Potter Stewart: I know.

Mr. Cox: -- in all cases.

Justice Potter Stewart: We know that.

I know.

Mr. Cox: And it squarely was held in O'Rourke that -- although the injured employee in that case was in fact, I think, a railroad employee, still this three elements were made out and the majority of the Court concluded that the Longshoremen's Act could apply and that went on and said, “This impliedly excluded the Federal Employer's Liability.”

Justice Potter Stewart: He was a member of our train crew (Voice Overlap) --

Mr. Cox: He was the brakeman employed on one side of the North River I take it.

And part of his work in the yard there would be to go up on trains or the cars of the trains and release the breaks so that the locomotive could back up and they could then be pulled off on the shore.

Justice William J. Brennan: He was the brakeman who went to sea?

Mr. Cox: He was the brakeman who went a little bit at sea, yes.

The case --

Justice Potter Stewart: His injury did occur on navigable water.

Mr. Cox: The injury did occur on navigable waters, the clerks build out on the same three elements that the District Judge relied on here.

Justice Potter Stewart: His employer did have employees engaged in maritime employment.

Mr. Cox: That the injury was on navigable water and that the injury arose out of its employment.

Justice Potter Stewart: Right.

Mr. Cox: And we think those are the decisive circumstances.

In the Avondale Shipyards' case, the second case, the employee, Minus Aizen was also employed to work indiscriminately upon both vessels being repaired in the Avondale Shipyard and upon vessels under construction and he, like McGuyer, was working upon a drilling rig, a vessel which had been launched and was floating on navigable waters at the time of the injury.

Aizen was injured while also working.

In his case, he was not killed.

He was totally and permanently disabled.

And again, we have a marked difference between the compensation that he would receive if he were -- permitted to the state law and the compensation which he may recover under the Federal Act may recover in our view.

In human terms, the difference is this, under the Louisiana Act, he would receive $25 for 400 weeks.

This would cover him until he was 35 years old.

From the time he was 35 until his death, he would have no means of support.

Under the Federal Act, the payments would run, he being totally and permanently disabled for as long as he lives.

In actuarial terms, the payments might come to 10 times as much under the federal statute as under the state law.

In his case, the Deputy Commissioner's initial award, awarded compensation under the federal statute.

The company took the case to the District Court, a different District Court, I may say than the Levingston Shipbuilding case went to and that district judge also sustained the award that's upholding the coverage of the Federal Act.

The cases were argued on the same day in the Court of Appeals for the Fifth Circuit and both were substantially decided in the opinion in the first case.

The Court held squarely that employees injured while working on the construction of a new vessel even though it has been launched and float in navigable water, must obtain compensation under the state law and may not obtain compensation under the Federal Act.

The opinion, I think, really stands on two legs.

First, the Court drew a very sharp distinction between the completion of a new vessel and the repair of an existing vessel.

Now, of course, both types of work when the vessel is in float are within the maritime jurisdiction.

But the new construction the Court -- the Fifth -- the Court of Appeals for the Fifth Circuit said, it's within the category maritime but local so that the state law can apply and therefore it said, “The Federal Act cannot apply.”

The second leg of the Court's opinion was to go back to the early president in Grant Smith-Porter Ship Company against Rohde, a case decided before the enactment of the Longshoremen's Act.

And to say that since that case held that an employee engaged in new construction upon navigable waters on a floating (Inaudible), could recover under a state Longshoremen's Act, therefore, he could not recover under the federal law.

There are two consequences of this distinction and reasoning that I'd like to advert too very quickly, the first is that it makes the compensation, to employee like -- employees like these, turn entirely on the happenstance of whether on a particular day they are on a new home or upon an old house being repaired because they are employed like many of -- these both were employed like any -- many other workers to work indiscriminately on new construction and repair.

The second point I would simply mention briefly at this day is that the drawing of this distinction led the court below into a dictum which I think is revealing of its error because it is squarely contrary to two recent decisions of this Court.

In drawing this distinction between new construction and repair, the Court flatly stated that if the men were engaged in repair work, they must sue under the state law and could not recover under the Federal Law because this is squarely inconsistent with the decisions of this Court in the more vast cases.

Both of which hold that employees engaged in repair work may recover under the state statute and I think while this is the not -- is the other half of the pair than the case we have here that it is the converse and shows the essential error in the court below.

Now the critical words of the statute are conveniently found on pages two and three of our brief.

At the top of page three, you will find the definition of employer.

The term employer means an employer any of whose employees are employed in maritime employment in whole or in part on navigable waters of the United States including any dry dock.

And this plainly encompasses both the respondents in these cases.

Then Section 3 (a) 903 of the Code, provides compensation should be payable under these chapter with respect of disability or death of an employee which incorporates by reference as you see the definition of employer and 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, we admittedly meet that requirement.

And if recovery for the disability or death through workmen's compensation proceedings may not validly be provided by state law of the critical question in this case stated in general terms is whether that concluding proviso or qualification, if recovery for disability or death may not be validly provided by state law, bars federal compensation here because through the tolerance or sufferance of admiralty, prior to 1927, states had been allowed to give state compensation under the conditions obtained in here.

In answering these question, there is one premise which must be borne in mind and that is whatever may have been the initial intention in this respect, it is plainly clear today that the statute does not make state and federal compensation mutually exclusive in all cases, and that, I say, whatever may I have been the initial meaning of this language, has now become a premise so well established that I think it takes no argument.

This is the statute which has evolved in role to meet real conditions and we interpret it in the light of present and not simply going back to earlier interpretation as it was a bare colloc -- bare collocation of words.

In our view, the concluding portion does not bar recovery under the federal statute, and as I said before, we think the federal statute applies where the three significant factors that I mentioned in the discussion with Mr. Justice Stewart are brought out.

We find support for this view in the legislative history and background of the statute.

We think it is plainly sustained by the decisions of this Court and indeed except for some recent decisions in the Fifth Circuit by the uniform course of decisions for 20 years in the Court of Appeals.

And finally, we urge that even if these contentions were not enough alone to make out petition in this case, even then under the twilight zone doctrine, established by Davis against Department of Labor, the award of compensation should've been sustained.

I think it would be helpful at this point before coming to those three contentions, if I were to recall for the Court, the background against which the Longshoremen and Harbor Workers' Act were mentioned and also, I recognized, the Court has been offered a good many times.

You will recall and I can do it by referring to three cases.

You will recall first that the Jensen case laid down the proposition of constitutional law that injuries occurring within the jurisdiction of the admiralty courts were not compensable under state statutes because admiralty law required uniformity and therefore the diverse rules of the 48 states might not be applied and that distinction was subsequently extended in two cases, the Knickerbocker Ice and Dawson cases to hold that Congress could not permit the states to apply their compensation statutes in this area.

The second case that I would refer to is this case of Grant Smith-Porter Ship Company against Rohde, which introduced the so-called doctrine of maritime but local.

In Grant Smith-Porter Ship Company against Rohde, an employee was injured while engaged in new construction of a ship which was afloat on the navigable water.

He had been employed to engage only in new construction.

His employment contract contained references expressed or implied to the state compensation act and the state compensation act provided that an employee who elected to come under the Act should be deemed to have waived his rights under the substantive law of torts to sue for personal injury.

And the particular case which ultimately came to this Court was a suit in tort to recover for personal injuries but it was held that the employee was barred by his acceptance rights under the state law and that the state compensation act could apply because the Court said, this was maritime but local.

Many of the commentators striated the Rohde case as they retreat in part from Jensen.

There were a series of five or six cases in this Court that applied the doctrine and the various other kinds of employees.

The third case, I need to mention only briefly, Industrial Commission against Nordenholt Corporation which drew the line between state and federal -- between -- through the permissible line of state acts in such a way between the ship and the dock so that even if the dock reached out in the navigable waters, if the injury occurred on the dock, the state law might be applied.

I mentioned this case because it's one of the things to which the concluding words of Section 903 might be taken to apply.

So the question here stated in the length of its background -- of the background of the Longshoremen's Act is whether this concluding if clause -- if recovery for the disability or death through workmen's compensation, may not be validly provided by state law is to be held to incorporate into the Federal Act a limitation on the cover of which excludes from the Federal Act this pre-1927 category of maritime but local.

Our first point is that the legislative history shows that the Congress did not have any intention -- affirmative intention to incorporate in the Section 903 the doctrine of maritime but local.

I stated in terms but did not have any intention to incorporate it because I do think that this is a statute of which must be interpreted as I have said earlier in the length of developments since it's neck but if there were clear evidence that Congress laid stress on the maritime but local doctrine, naturally, that would give us a pause in arguing that it was not effective law today but quite contraries the case.

Well, I do not know that one could press so far as to say that the legislative history shows affirmatively that the doctrine was repudiated.

It certainly finds more in that direction than it did in any direction of preserving it or attaching importance to it.

The bill of which ultimately was enacted, originated in the Senate and it's interesting to note that the original Senate Bill did incorporate the maritime but local doctrine.

We've set forth the relevant excerpt on page 32 of our brief.

This actually apply to any employment performed on a place within the admiralty jurisdiction of the United States except employment of local concern and of no direct relation to navigation and commerce which will not apply to imply if he's a master or a member of the crew of a vessel.

In the hearings, those critical words which are taken from the Rohde case, employment of local concern and of no direction, no direct relation to navigation and commerce were explained as coming from the Rohde case and were severely criticized, indeed in a written memorandum filed some time after the conclusion of the hearings but before the committee made its report, on behalf of the insurance companies, the association of ship builders, there was a precise criticism of this doctrine, the criticism is quoted over on page 34 of our brief.

It finds both with the indefiniteness of the words that says that there would be enumerable questions coming before the court if they were preserved and urges that the statute be expanded so as to cover all maritime employment under the admiralty jurisdiction of the United States Court.

Justice Potter Stewart: This cert -- occasionally was from an employer's group was it not?

Mr. Cox: This was from an employer group.

The American Shipbuilders Inc. and New Jersey Dry Dock Association.

Justice Potter Stewart: They wanted to include the seamen as well I think.

Mr. Cox: They also wanted to include seamen.

Justice Potter Stewart: Then what to -- to repeal the Jones Act?

Is that the other --

Mr. Cox: I -- well that's -- they'd -- there's no suggestion of an expressed repeal in any of the hearings that I read.

The chief debate, indeed, was throughout to the hearings of the Senate and in the House and such a few references are on the floor was over the position of seamen.

But I do think that some significance must be attached to this change in wording which the committee made because if you will look over on page 35, Mr. Justice Stewart, you will see that the Committee, when it reported the bill, rewrote the definition of coverage in such a way as to leave out any references to the language of the Rohde case or maritime but local and to expand its coverage even though it did not changed it to include seamen.

It then -- it read at that stage, compensation should be payable under these act in respect to disability or death of an employee but only if the disability or death results from an injury occurring upon navigable waters of the United States including any dry dock or occurring while such employee was employed onboard the vessel of the United States on the high seas and if recovery for disability or death through workmen's compensation proceedings, may not validly be provided by state law.

That is the law as it stands today except that there is this phrase coming right after footnote 10 or occurring while such employee was employed on board the vessel of the United States which was of course subsequently believed.

I may say that although that suggest Justice Stewart, that seamen might have been covered at that stage.

If you turn over to the next page, you will see that there is even then was an exception that took most seamen out, so that while the committee did broaden the bill, it did not broaden it to the full point of including seamen.

The best explanation of this chain that I can find is that the Committee did not wish to incorporate in to the Longshoremen's and Harbor Workers' Act, the maritime but local distinction of the Rohde case.

Justice Potter Stewart: Now what do you think and maybe you've told us but if it's so I've missed it, what do you think this phrase meant to the Congress at the time it was enacted?

Mr. Cox: Well, I think there are -- I think there are two choices looking at it as you just did at the time it was enacted.

Justice Potter Stewart: In -- in --

Mr. Cox: I think it --

Justice Potter Stewart: -- in the light against the background of the decided cases of this Court.

Mr. Cox: Of that time -- yes.

Justice Potter Stewart: -- Jensen, Knickerbocker Ice and Dawson cases.

Mr. Cox: Yes.

Well, I think that if we -- I think that it must have had served one or two purposes.

One is that it was put in primarily as a recital of the reasons for enacting the statute as it were to add the saying there in coverage, in the coverage section that we have to act because Jensen and the other cases have excluded the state jurisdiction.

And this interpretation is certainly supported by the view -- by the fact that the committee report refers to Jensen and Knickerbocker Ice but neither on the committee of reports or anywhere else was there a references to the maritime but local doctrine.

Indeed, perhaps you gain some slight additional strength from the fact that when the Senate Bill was read on the House floor, they simply stopped reading it after occurring on the navigable waters of the United States and nobody attributed any significance to this recital.

Now, if it must be given some substitutive meanings as of that time, I would say that it was intended to cover the situation involved in the Nordenholt Corporation case.

To with -- to make it clear that the longshoreman who was injured on the dock, reaching in the navigable waters, belong to the state rather than under the Federal Act because if you had left that out, it would certainly have been possible to argue that an injury upon a fixed structure, reaching out in the navigable water, was an injury on navigable waters just as much as it appeared on the floating structure.

Those seem to me taking this now as you have to interpret it as of the -- as of 1927, as to the two most likely interpretations of the words.

The legislative history in the House does not require the same detailed exposition.

It's enough to say simply this, in the House the movement was only for expanding comfort.

Indeed, the original House Bill expanded in coverage to the point where seamen and masters were included.

It apparently was impossible in view of the legislative situation than existing to enact such a bill in an effort to get a bill properly enacted.

There was a return to the Senate floor and that was what the bill became -- and that was the bill that became the law.

Now, the point that I'm trying to make is that all of the -- except for seamen, all the changes in language were consistent with the notion of expanding the federal coverage to the full extent of admiralty jurisdiction and that there were certainly nothing to indicate beyond the fact that the Rohde case was on the books since that's an indication but there's nothing beyond that bare fact to indicate that the Congress attributed any importance to the maritime but local exception.

Now of course, coming at the statute today, 35 years later, we think that it is not to be interpreted as it might have been in 1927 or 1928, even so, we would have had a pretty good case then.

But the later decisions, the growth, the revolution of the statute, make it all together plain that the maritime but local doctrine is not a limitation upon the coverage of the federal statute.

The first case that we think establishes that proposition is Parker against Motor Boat Sales Corporation.

You will recall that in that case, a janitor named porter who was employed to work on land about the premises in someone who was selling out boat motors and small boats went upon a single boat ride with his superior to act.

It was said, as a look out for any possible obstructions in the James River.He fell overboard and was drowned.

The Court of Appeals for the Fourth Circuit set aside an award made by the Deputy Commissioner in favor of the widow upon the ground that the state could award compensation under the doctrine that the accident while maritime was a local concern and this really, I think, not the slightest precedent but that it was on that ground the maritime but local exception that the Court of Appeals had acted.

Nevertheless, this Court reversed and sustained the award of compensation, and while the opinion is not explicit upon that point, it seems to us that it rather clearly repudiates the whole maritime but local doctrine as a measure of the coverage of the Federal Act.

There was no discussion of the maritime but local test, on the Rohde case and others like it were not cited, the opinion below, I think, would've been very persuasive if these were the tips.

Instead, this Court held very simply that the proviso, the concluding language that I've sought to direct your attention to several times, referring the cases where recovery might be had by state law, did not provide an exception, large enough to cover the Parker case.

The commentators and the lower courts have -- with rather complete uniformity, interpreted the Parker case as rejecting the maritime but local doctrine.

Professor Larson and his book on Workmen's Compensation says, this decision by the highest Court appear to scrap the local exception to maritime employment but the relation to navigation and commerce of an unauthorized print in a tiny outward motor might seem to approach the vanishing point.

The second case, which if necessary, puts this proposition beyond dispute is the case of Pennsylvania Railroad against O'Rourke to which I referred earlier in answer to some questions from Mr. Justice Stewart.

You will recall that it involved the freight brakemen in the yards of the Pennsylvania Railroad at jury's decision.

The argument and decision in the Second Circuit had been inter -- had been directed to the proposition that the place where the injury occur because it had occurred on navigable waters was not decisive and that it was necessary to inquire into the character of the employment and the opinion below went on in the respondent's argument in defense of it was that if the employment was not maritime, the Federal Act had no application.

Now, this argument is essentially the same as the argument that was made in Rohde and the other old maritime but local cases.

In Grant Smith-Porter against Rohde itself, the emphasis was on the character of what the employee was hired to do.

Now, the contract for constructing the Ahala that was the vessel he was working on, the Court said was not maritime and also the uncompleted structure upon which the accident occurred was lying in navigable waters, neither Rohde's general employment or his activities at that time had any relation to navigation or commerce.

And in that opinion, the Court said with reference to Jensen and similar cases, in each of them, the employment or contract was navigable in the cha -- it was maritime in the character.

Here, the parties contracted with reference to the state statute and the Alaska Packers' case, another leading exposition of the maritime but local doctrine is written even more explicitly in terms of the fact that the employee who in that case had been injured pushing a vessel in the navigable waters had been hired to work about a cannery.

It was a dead season and he was a cannery worker the Court had said and therefore the Local Compensation Act could apply.

The similarity between the two arguments, the argument by the -- in the O'Rourke case and the argument in the maritime but local cases, had been noted in the District Court.

Indeed, it expressly referred to the Rohde case and indicated that in its judgment, Rohde was an outlaw under the Longshoremen's Act.

And the Rohde case and others were cited not unnaturally in the briefs in this Court, in the O'Rourke case, for the proposition that the Federal Act would not apply.

Never the -- nevertheless, this Court squarely repudiated the test which calls for one look at the character of the employment and indicated, we are clear that the emphasis of the nature of respondent's duties here misses the month.

The statute applies by its own terms when the employer has any employees engaged in maritime service than going on the exclusive coverage of Section 903.

That's the one we are arguing about, 905, extends to an employee of an employer made liable by 904 when he is injured in the course of his employment on navigable water and we have those same three facts, an employee of an employer covered by the act, injured in the course of his employment on navigable waters.

Justice Potter Stewart: Of course the O'Rourke case did not involve directly, certainly, the exemption -- the exception that we're talking about today did it?

Mr. Cox: It -- I think it did in this sense if you'd say directly and let me state in the sense in which it applies without (Voice Overlap) --

Justice Potter Stewart: Let me ask you this --

Mr. Cox: If the Longshoremen's and Harbor Workers' Act could not apply because the exception took the case out.

Then there would have been an altogether different question as to whether the fact that a State compensation law applied, prevented recovery under the FELA.

Justice Potter Stewart: May I ask you --

Mr. Cox: The whole argument was --

Justice Potter Stewart: May I ask this Mr. Solicitor General just for my own information, did the Court in the O'Rourke case discuss the proviso that the Act -- the Federal Compensation Act is applicable if the state law may not apply?

Mr. Cox: No, it did not and I suppose because --

Justice William O. Douglas: On page 337, I just happen to have it in front of me Mr. Solicitor General.

The opinion of the Court says that Jensen wanted a demarcation to state and federal jurisdiction had been accepted.

New Jersey could not have enacted statutes granting compensation for respondent's injury on navigable water.

Mr. Cox: That's true.

Justice William O. Douglas: That's the dictum of course.

Mr. Cox: It did say that and it seems to me that the statement with deference to the author of opinion and the majority cannot be taken literally because since the Davis case, it has not been true that the federal and state laws are mutually exclusive.

There are certainly instances in which the state may grant compensation where the injury occurs under circumstances where the federal law might apply.

The clearest illustration is the case of the work on the repair of a vessel where it has been squarely held even though the vessel is afloat on navigable water as in the Baskin case out on the West Coast that the state law may apply.

But so, Justice Douglas is not only obviously right but I appreciate him calling into my attention, it seems to me that that statement, however, is too broad and simply does not accord with the precedents in this Court.

I may point out that these three facts that I've sought defect towards, that I've sought to emphasize have been applied Justice Stewart as you recalled earlier in cases where the clearer question was one of the coverage of the Federal Act and whether an award on the Federal Act should be sustained.

Thus in this Dixie Sand and Gravel case on the Sixth Circuit stated very categorically in an opinion on which -- from which there was no descent on this point that given these three facts, then the federal statute apply.

And I think that it's a -- this is rather clearly the rule not only in Fourth and Sixth Circuit but the Ninth Circuit has held that the maritime with local test does not applied.

I would add the Fifth Circuit where it's not the present case.

Justice Potter Stewart: Now Mr. Solicitor --

Mr. Cox: But (Voice Overlap) --

Justice Potter Stewart: -- General.

Excuse me again if I may interrupt.

Judge Brown in his powerful style, indicates in this case that the rule has been pretty definite at least in his circuit and I should gather from what he says that he -- that the rule as being quite definite and certain throughout the federal courts that in this specific factual context regardless of what the general rules might be, i.e. -- i.e. new construction even though the -- even though the ship being built is far out for long so it's floating on navigable water that new construction is outside the coverage of the Federal Act.

That's what he seems to apply and he seems to -- opinion seems to be positive on the wisdom of having the certainty in this area.

Mr. Cox: Well I think it's -- yes.

Justice Potter Stewart: Is he right factually about that or is he wrong factually about that (Voice Overlap) present?

Mr. Cox: Well, I think that speaking only of this exact factual situation.

Justice Potter Stewart: On the category of new construction.

Mr. Cox: Alright.

Yes, that's what I meant but -- as distinguished from the status of the maritime but local doctrine in general.

Justice Potter Stewart: Right.

Mr. Cox: Speaking of this category of new construction, I think the facts as to the decisions and law are these.

First, there are no cases upholding federal coverage as applied to new construction.

We have to concede that.

Second, this is not an area in which it is practicable to ascertain what the practice of the Deputy Commissioner has been.

The awards are not filed in a way that they are digested or analyzed and you simply can't run it down.

On the other hand, I think that I must acknowledge that probabilities are that there were not any significant number of awards and compensation because I suppose that they would have been taken to courts in view of the decisions if there has been, although I think that's a little speculative.

I think I have to worsen it on that point.

So that Judge Brown's -- if limited sufficiently, Judge Brown's reasoning is correct.I would make these points in reply.

In the first place, I think the notion that an exact pre-1927 president removed something from the area of doubt, has been thoroughly repudiated.

The more Baskin cases, are the best illustrations and indeed the difficulties into which Judge Brown's search for certainty in the pre-1927 precedents leads one, are very well illustrated by his own opinion as I indicated earlier, he said in the Fifth Circuit, the rule is, I'm referring to page 50 of the opinion, in the face of some state court decisions which we have expressly declined to approve or follow, have we spoken in positive terms as to ship repairers.

A ship repairer is not in the twilight.

He is in the federal domain.

The State Act may not validly imply but this is just flatly inconsistent with the decisions of this Court.

So that's one thing that conventions made that to say that certainty was given by the pre-1927 decision is not really proved in a realistic sense.

Second, I can't help noting also perhaps it's not with significance that the Rohde case itself is distinguishable on these facts and indeed the opinion that some of the Deputy Commissioners apparently relied on is also distinguishable.

The Rohde case dealt with a man who worked on new construction.

Justice Potter Stewart: Wholly.

Mr. Cox: Wholly.

And these are men who work indiscriminately back and forth and it involve a contract referring to the State Act that apparently lose no such contract here.

Again, the only case which followed Rohde early under the Longshoremen's and Harbor Workers' Act, was a case in the Fourth Circuit and Judge Brown himself acknowledges that that case has not been followed in the Fourth Circuit, not in the narrow sense in which we were talking earlier but in the sense of its broader rationale.

Again, the distinction between new construction and repair has been clearly repudiated in the case of dry docks and marine ways.

Now I see no greater reason for applying it to the construction of ships than there is for applying it to the construction of dry docks and marine ways.

Chief Justice Earl Warren: We'll recess now.

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Argument of Cox

Chief Justice Earl Warren: -- you may continue.

Mr. Cox: Thank you, Mr. Chief Justice.

May it please the Court.

Before the recess, I have almost concluded by comments upon the proposition that the one thing that was settled in this area was that one engaged in new construction even upon navigable waters could recover under state law and therefore, not under the Federal Act.

I gave a number of illustrations or quite some reference that seem to me to show not only that all around that doctrine had been shipped away but that indeed, even the Rohde case itself could be sharply distinguished from the Travelers Insurance case and could be distinguished even from the Avondale case where, also, the worker had worked only on new construction during his tenure of employment.

He had apparently been hired to do either or both.

Now, of course, the underlying point to which I was attempting to direct myself was that I think in this area, you can't take a single decision and say that, well, that settles the law on this point.

These cases are all interrelated.

The Rohde case laid down a maritime but local doctrine.

And surely a lawyer in the Fifth Circuit deciding under which act to proceed prior to the decision in this case, would have read three opinions by Judge Hutcheson saying that the maritime but local doctrine is not law in interpreting the Federal Act.

Indeed, so that I think each development necessarily affects the other cases and one could, I won't take the Court's time, but if you were to take the maritime but local decisions in this Court prior to 1927, you will find that there are several of them which can't possibly be reconciled with the later cases applying the scope or defining the scope of the Longshoremen's Act.

Indeed, it would seem to me more fundamentally that the basic postulate of Davis against Department of Labor is that we should not interpret this Act by looking to see if we can find some particular precedent that seems to be close enough to say that the case has been definitely assigned one way or the other.

We rely, of course, very heavily upon the Davis case, as I understood it -- understand it, it lays down the proposition that when a case falls in the penumbra about which -- about what might otherwise be the exact demarcation line between state and federal jurisdiction then without engaging and breaking up all these old precedents, the employee may proceed under either statute and that compensation should be awarded under either as he may proceed.

That doctrine rests upon two in the sense -- three predicates.

One is certainly that we are dealing with remedial humanitarian legislation that the aim above all else is to provide these men with compensation because they have been injured in the course of their employment and therefore the -- the business, the industry should compensate them as part of the cause.

A second predicate of the twilight zone doctrine is that the expense, we should not incur expense, delay uncertainty in litigation, that by applying either the state law or the federal law liberally as the case may be and construing exceptions narrowly as one done -- one does with remedial legislation, the award by either authority in this peripheral area should be sustained.

When dealing with a state award, that is justified by the presumption of constitutionality.

When dealing with a federal award, there isn't the statute a creative presumption that the federal law does apply so that both of those are available.

Taking these forces together, it undoubtedly does result in some overlapping.

The Moore and Baskin cases shall have the state jurisdiction may overlap unto repair work which had been under federal law.

The Avondale Marine Ways case, the earlier Avondale Marine Ways case, shows how the federal law has overlapped into areas which might originally have been regarded as that of the State.

Now, the only problem that is left if one gives affect to these guides to interpretation and to the humanitarian purposes of both sets of laws is the electoral problem.

What does one do with the words if compensation may not be validly awarded under state law?

I'm tempted to escape simply by saying, well, as Justice Frankfurter did in his opinion in the Davis case, one can't expect to complete logical nicety.

This is a practical doctrine and therefore no further explanation is recalled.

I think the Court is entitled to a little better explanation than that.

Let me try and put it this way.

I think that it is clear and must be taken today as I said in the beginning, that the notion of exact mutual exclusiveness does not and can no longer obtain.

I would explain these words in one of two ways.

I would say that they are simply a recital, as I suggested earlier, of a condition rather than an attempt to limit the scope of the federal statute, that they recite one of the conditions that lead to its neck.

The other possibility is that they were intended to take out of the federal statute and give to the states jurisdiction over injuries occurring on fixed structures built out into the water like a long jet or something of that kind because it was supposed to be the law at the time of the longshorebern -- Longshoremen's Act was enacted.

That even so this, literally, may be an accident in navigable waters or unnavigable waters.

Nevertheless, it was not within the admiralty jurisdiction that was the doctrine at that time.

And it may be that the language was intended to make it clear that there was no effort to subsume that under federal jurisdiction.

But I think the dominant point and the one which led me to lay -- take some time going through the legislative history is that whatever maybe the explanation of this language, it was -- it was not something which -- to which Congress gave prime importance.

It was not something that bulks as large as the consideration of policy that gave rise to the Davis case and which we think should be controlling here.

And consequently, the Court has extended the scope of federal jurisdiction when the injury involved the three factors that I mentioned earlier and since this language had no such important purpose, that whatever its motive or explanation maybe, it must be subordinated to the policy that lies behind the twilight zone cases and accordingly, the judgment below should be reversed.

Justice Byron R. White: Mr. Solicitor General, is it your position that this case should be held to be in the twilight zone or is this is a clear case for federal jurisdiction (Voice Overlap) --

Mr. Cox: No, we would think -- we would think it should be held that the Federal Act applies if a case supplying state jurisdiction to these facts should arise, we think that the duty of the state court would be to sustain that award also.

Justice Byron R. White: So it -- this is a -- is it a (Voice Overlap) --

Mr. Cox: This is a case that -- where jurisdiction might go either way, just like the case of work at repairing a vessel that has been put in service.

Justice Byron R. White: Which is already been held.

Mr. Cox: Which is already been held to go either way.

Justice Byron R. White: But what should the State do with the petitioner (Inaudible) expressly make subject to federal (Inaudible)?

Mr. Cox: Well, it -- the plaintiff hasn't -- hasn't pushed forward with it and isn't pressing so there's no occasion for the State to do anything with.

Justice Byron R. White: Well, didn't the one -- didn't he collect under the -- if one of them appear collect for two years for the State of (Voice Overlap) --

Mr. Cox: There was some money paid by Avondale Marine Ways to Aizen.

He received checks which would have been due either under the state act or under the Federal Act.

The checks were simply marked on account of compensation or some similar blind expression like that.

It seems to me that --

Justice William J. Brennan: He made them pay without the proceeding being filed?

Mr. Cox: Yes.

Oh, yes, there was been no -- there's been no proceeding.

And indeed, as I recall the facts the -- wait a minute, I've been -- I said there's been no proceeding.

I stated it too broadly.

There's no -- at that time, there was no proceeding.

Under the Louisiana Act, there's an obligation to go ahead and make payment even though no proceeding has been instituted so that Aizen, my point was Aizen could have received this money under either statute.

He was entitled the money under either statute and he did nothing which could constitute an election.

Justice William J. Brennan: Are the amounts the same with the amounts received?

Mr. Cox: The amounts are larger under the federal statute.

Justice Byron R. White: Well, how about under the Texas law, wasn't there -- did one of these (Voice Overlap) --

Justice William J. Brennan: Well, there were no -- yes the Texas law would apply in the Travelers Insurance case.

Justice Byron R. White: Yes.

Justice William J. Brennan: But there were no payments made with the Travelers Insurance case.

There were proceedings filed in each court but -- in each -- before reaching administrative body.

But the Texas one has not been pressed because he simply filed it to make sure that he wouldn't be bothered by the statute limitation and also filed it in such ways to make the claim that if there were any necessity of an election, he wasn't electing under the Texas Act.

We cited, I may say, in our reply brief sub-cases dealing expressly with this problem of the payment.

They seemed to us to show, I suppose the respondent wouldn't be as persuaded, that there has been no election here and that accepting the payments does not under the settled authorities, bar isn't from proceeding before the Deputy Commissioner and under the Federal Act.

Unknown Speaker: You don't construe basically, its on appeal whether the court (Inaudible).

Mr. Cox: Oh, yes, yes

Unknown Speaker: You do?

Mr. Cox: That was -- that was -- I thought that was what I was saying --

Justice William O. Douglas: (Inaudible)

Mr. Cox: I meant to say.

Justice William O. Douglas: (Inaudible) as I understand with the Deputy Commissioner, he was on either way.

Mr. Cox: Yes, that's the way he proceeded.

But I suppose that if he had chosen to proceed under Texas law and had not filed under the Federal Act, that the Texas body would have taken jurisdiction and that it would be the duty of the courts to sustain that award.

Justice William O. Douglas: (Inaudible)

Mr. Cox: Well, I hope I've made it clear because I -- I do take it.

He could have gone either way.

The only problem, it seems to me to be left open and we don't have to face it here, is that what point has an employee, if any, has an employee irretrievably pursued one remedy to the exclusion of the other but there's no problem with that kind here and no occasion to pass judgement upon it.

Chief Justice Earl Warren: Mr. Solicitor General, you've -- you've been trying for five minutes to sit down.

I'll give you five minutes to --

Mr. Cox: Thank you, sir.

Chief Justice Earl Warren: -- rebuttal and you may have five minutes more.

Mr. Kohlmeyer, if you desire it.

Argument of Charles Kohlmeyer, Jr.

Mr. Charles Kohlmeyer, Jr.: Mr. Chief Justice, may it please the Court.

We are, of course, at complete variance with the whole argument of the Government both as to the background judicially and legislatively of the Harbor Workers' Act, the meaning of the twilight zone theory and finally, the question of election.

I should like, if I might, to correct what I think was an inadvertent error on the part of the Solicitor General in referring to the nature of the employment of Aizen in the Avondale case.

Your Honors will recognize that the two cases were tried below as separate cases and were consolidated for the first time only on the application of -- for a writ in this Court, therefore, I will present only the Avondale portion and Mr. Nelson, who handled the Travelers case in Texas, will present that portion of it.

Insofar as Avondale is concerned, this case went before the Deputy Commissioner on an agreed statement of fact in which it is stated that during the entire term of Aizen's employment by Avondale, he worked solely on new construction and performed no work on repair jobs.

Secondly, not withstanding that Aizen worked solely on new construction and performed no work on repair jobs, other workmen in particular crafts assigned to work on repair of vessels on rare occasions performed work in the new construction field.

Avondale is a shipyard which principally works on new construction.

New construction is completely different from repair.

New construction involves molds, lofts, design, shore work, cutting of steel plate, prefabrication.

Repair work, on the other hand, connotes an actual physical onboard work whether in dry dock or whether floating, of course.

But there are two different types of crafts generally that are used.

There is nothing peculiar about a separation of these two types of craft.

The crafts -- the new construction work is, as I say, laid out in advance and probably is less skilled than is the repair work.

Nevertheless, this man was working on new construction.

And in the face of this statute, we find it difficult to understand how the Government hopes to get around the words that compensation is payable if recovery for the disability or death through state compensation proceedings may not validly be provided.

This is the point in the case, the question of how this clause got into the act is clearly shown in the hearings which are cited by the government but one portion of which was omitted.

It is to be understood, of course, in this connection that this Act was adopted with the background of the Jensen case before the Senate Committee which -- in which the Act originated.

They were looking to get away from Jensen to adopt the theory of compensation, liability without fault, which at that time was a rather new theory, and they found it in the area of adopting this federal legislation, principally applicable to longshoremen, not to harbor workers.

It was aimed at the longshore area.

As the Senate Committee stated in its report, if longshoremen could avail themselves of the benefits of state compensation laws, there would be no occasion for this legislation.

But unfortunately, they are excluded from the laws by the character of their employment.

And they are not only excluded but the Supreme Court has more that once held that federal legislation cannot constitutionally be enacted that will apply state laws to this occupation citing Jensen, Knickerbocker Ice and Dawson.

Now, this isn't a constitutional problem that is before Your Honors today, it's a question of legislative interpretation and the meaning of the statute.

The statute must, however, be viewed in the light of the Constitutional Law which existed at the time that it was adopted.

And that law, as we understand it and very obviously as the Senate Committee understood it, precluded the Federal Government from encroaching into the State field just as it precluded the State Governments from encroaching into the federal field.

The admiralty was on one side, the state law was on the other side.

The federal legislation could take care of the admiralty.

The State could take care of its own on the purely local matters.

The local concern issue had been settled by Rohde which was a pre-1927 case, 1927 being the date of the enactment of the Harbor Workers' Act.

And likewise, the Nordenholt case had been decided which held that an injury sustained on a wharf or an extension of the land over water, nevertheless, was covered by state law.

Now, this whole area is an area of great dynamic movement today.

We don't know where we stand on any of these cases in the twilight zone until there has been a judicial appraisal of the particular facts as we understand it.

We don't, of course, go along with the Government's position that twilight zone offers a complete remedy to any worker in the amphibious field nor did the Fifth Circuit go along with that theory when the argument was pressed upon it below.

I think that Mr. Justice Douglas indicated in the Avondale-Henderson case that there was no twilight zone as to a barge which was on a dock where a man was injured there.

And likewise, Mr. Justice Stewart, Mr. Justice Harlan dissented in the Ross Island-Hahn case on the theory that only in doubtful cases is Davis necessary.

That point, of course, can be developed later but at the moment, I should like to address myself only to the interpretation of this Clause 2 as Judge Brown called it below in the Act, namely, that recovery through compensation proceedings must not be validly providable under state law in order for the Federal Act to apply.

It would've been very easy with the background that the Congress had at the time the statute was enacted for this whole theory to be pitched upon the admiralty jurisdiction, a locust injury as distinguished from any type of employment concept.

Of course, the Congress knew of this with the background of the Jensen Case before it.

Jensen had held unconstitutional, as Your Honors recall, the application of a New York State comp law to an employee engaged in stevedoring.

Throughout the years following Jackson, numerous cases came up to this Court including one leading case from Louisiana, Messel against the Foundation Company in which the Louisiana State compensation law was held to be -- was held not applicable on constitutional grounds in a situation where a repairman onboard ship injured while in -- on the navigable waters sought comp under the state act.

He was refused compensation because the state act would have unconstitutionally encroached upon the federal field if it would have been applied in that case.

That's the background that was applicable in the adoption of the Harbor Workers' Act.

Now, insofar as the quotations from the individual members of the legal profession who appeared at the hearings, it's our submission that this is a pretty weak guide to an interpretation.

On the contrary, the Senate Report which condensed all the arguments pro and con, clearly indicates that the Senate did not intend and thought that they could not encroach upon the State field and therefore had to stay with the two types of available remedies.

First, the federal, insofar as what was classically known as the “admiralty area” and secondarily, the State, but preferring to give the state jurisdiction because they provide that compensation maybe payable if recovery through workmen's compensation proceedings may not validly be provided by state law.

And so far as the Act itself is concerned to prove that there is no question or was no question in the mind of Congress when it adopted the law as to the Locust Theory, Section 2, Subsection 3 particularly excludes from the coverage any person engaged by the master to load or unload or repair any small vessel of under 18 tons and indeed in Section 3, it is provided that no compensation shall be payable in respect to the disability of any person engaged to load or unload or repair any small vessel of under 18 tons net.

Now, if the Congress felt -- if the Senate felt that they could constitutionally have or rather if they wished in enacting the statute solely to base liability on the jurisdictional grounds which were covered by the admiralty law then why would they have excluded a person engaged to load or unload or repair a small vessel of under 18 tons net?

Obviously, they had concern for the big ships.

Obviously, they did not have concern for the over water or over land theory.

The fact that an injury occurs over water doesn't necessarily make it subject to compensation under the Federal Act.

The fact that it occurs on land probably does but, of course, at the time that the Act was adopted, no one could have -- would have dreamt of the recent constitutional developments and that we have seen take place where an affect on commerce could be the basis for the reaching of jurisdiction by the Congress.

Based upon that interpretation and based upon the Rohde case which was likewise a pre-1927 Supreme Court decision, only one other case, the Taylor case in the Fourth Circuit, that we have been able to find and apparently that the Government has been able to find, has covered this particular isolated question of new construction.

These two cases are the only two and in both of those cases, the Courts held that new construction was not covered by federal but was covered by the state act.

Moreover, the Government has cited in its brief a report from or rather opinion from the Compensation Commission and it -- the appendix to the Government's brief on page 83 in a letter from the Compensation Commission on page 84.

It is our submission that these two documents clearly show that the contemporaneous construction of the Harbor Workers' Act by the Deputy Commissioners and the United States Employees Commission, are to the effect that new construction would not be covered.

If there are only two reported cases, it's our deduction and I assume reason -- of reasonably arrived that that there have been no attempts on the part of any claimants or on the part of any Deputy Commissioners to throw this type of work into the federal field because if there had been, I'm quite confident that there would have been reported cases and there would have been appeals.

There are none, however, that we have able to find.

And we feel that the contemporaneous construction of the Act, which certainly is one of the best guides to an interpreted -- interpretation, shows that there is an ability here on the part of the Commission to refrain from reaching or rather not an ability but a tendency to refrain from reaching out into the other fields.

And these two cases, arising almost simultaneously in the same circuit, are the only two cases that we know of where there have been attempts by the Commissioners to take jurisdiction.

But the question -- the question of interpretation is not a constitutional question, it's solely and only a question of statutory interpretation.

And when it is a question of statutory interpretation, this Section 2 or Clause 2 in the 1st Section conditioning recovery on a state act not applying, we think governs this particular area that -- of the case.

And so far as the Parker and O'Rourke cases are concerned, O'Rourke, if the Court please, did not involve a state compact.

The state compacts of the -- of the Compensation Act of New Jersey could not constitutionally have been applied to O'Rourke, he was either a harbor worker or he was a railroad worker, one of the two.

And Your Honors decided in O'Rourke that he was a harbor worker and entitled to the compensation under the Federal Act.

There was no conflict there between the state and the federal law.

There was a conflict there between two federal laws.

As for example, Your Honors have had these cases involving Jones Act and compensation which continuously arise down in our circuit anyway.

But in the O'Rourke and in the Parker cases, it was clearly recognized that the field in which a state may not validly provide for compensation must be taken for the purposes of the Federal Act as the same field which the Jensen line of decision excluded from state compensation laws.

The line of demarcation between the state and the federal jurisdictions was set at Jensen and was continued through on the bases of Jensen, the whole way.

Even though Parker, probably, was a precursor of the twilight zone decision, it's our understanding of the twilight zone theory that there was never an intention to grant concurrent jurisdiction to two separated and completely different bodies such as a state and the federal bodies simply because an amphibious worker was injured somewhere near a waterfront.

Now, this raises the whole question of the interpretation of Davis.

Davis, as Your Honors will recall, was the original twilight zone case.

But in that case, Davis was a man who was capable of being called a shore side or an -- a longshoreman worker.

Davis was cutting down a bridge and if he was classified as a man who was burning steel on a bridge, then he would be a shore worker and the matter would be purely local.

There would be no question of federal jurisdiction entering into it.

On the other hand, if he was cutting the steel and ordered to fit it on the barge which would be taken away and he died, of course, when he fell overboard from the barge, if that was so, then he would be classified as a longshoreman.

And on that basis, the Federal Act would -- should necessarily apply on a constitutional basis because the state act couldn't.

It was a factual difference though, I believe that Mr. Justice Black found to exist, that was hard to determine and therefore, created this twilight zone theory.

It was not a general overall theory as I understand the Government contends for today, that anyone smelling of the sea can get recovery under one or the other law.

This just reads out entirely the proviso of the law that compensation may only be had if recovery can't be given by the state acts.

Justice Potter Stewart: Don't you think that the Parker-Motor Boat case just about accomplish that job of reading -- reading out that proviso of the law?

Mr. Charles Kohlmeyer, Jr.: No, if the Court please, I do not think so.

It seems to me that in Parker, I -- I would rather think that -- that today, Parker would come closer to being a Jones Act case than he -- Parker would come to being a compensation case under the federal law.

He was certainly employed as a seaman.

He was a look-out on a small boat and under existing jurisprudence arising principally out of the Fifth Circuit but the Texas Tower case that Your Honors decided a couple of years ago, the (Inaudible) case, the Jen Faller case.

All of them held that such a man could go to the jury on the question of whether he was a seaman under the Jones Act.

I would think that Parker would be classified properly as a seaman doing the work that he was doing but --

Justice Potter Stewart: But for well that -- that may be, that's an interesting idea but that case did not involve that question -- of whether --

Mr. Charles Kohlmeyer, Jr.: No, sir.

Justice Potter Stewart: -- the seaman is involved whether or not --

Mr. Charles Kohlmeyer, Jr.: Of course, he did --

Justice Potter Stewart: -- covered by the -- this federal compensation statute.

Mr. Charles Kohlmeyer, Jr.: That is correct.

But it is also true, I think, that Your Honors did state in the Parker case that the field which it -- in which a state may not validly provide for compensation must be taken as a Jensen line of demarcation.

Now, if this be true and if that statement is the basis under rationale of the proceeding, I should think that there would be no intention to completely have a mixup between the two.

Justice Potter Stewart: Now, how -- how did -- how did the Parker opinion deal with this proviso of the statute?

You just said it shouldn't be read to prevent recovery here or something like that, didn't it?I have to have -- in front of me, I have read it through.

Mr. Charles Kohlmeyer, Jr.: I think that's right, if the Court please, I think that there was an indication in Parker that the twilight zone was coming --

Justice Potter Stewart: Yes.

Mr. Charles Kohlmeyer, Jr.: -- and -- in the course of the opinion, the Section of the Senate Committee would -- report which is quoted in our brief, was reviewed by Justice Black.

He stated, there can be no doubt that the purpose of the Act was to provide for federal compensation in the area which the specific decisions referred to placed beyond the reach of the States.

The proviso permitting recovery only where a compensation may not valid will be provided by state law cannot be read in a manner that would defeat this purpose, an interpretation which would enlarge or contract the effect of the proviso in accordance with whether this Court rejected or reaffirmed the constitutional basis of the Jensen and its companion cases cannot be accepted.

The result of such an interpretation would be to subject the scope -- would be to subject the scope of protection that Congress wished to provide to uncertainties that Congress wish to avoid.

The theory was that this accident was local concern I think and yet --

Justice Potter Stewart: And therefore would have been --

Mr. Charles Kohlmeyer, Jr.: -- (Voice Overlap) the business.

Justice Potter Stewart: -- would have been within the constitutional power of a state to provide compensation.

Mr. Charles Kohlmeyer, Jr.: I'm inclined to believe that that could have been, yes.

Justice Potter Stewart: And the Court said --

Mr. Charles Kohlmeyer, Jr.: It was not said --

Justice Potter Stewart: -- we -- we --

Mr. Charles Kohlmeyer, Jr.: -- in those words, no.

Justice Potter Stewart: No, no, but -- but the Court did say the -- this proviso of the statute could not be interpreted to defeat recovery under the --

Mr. Charles Kohlmeyer, Jr.: That is --

Justice Potter Stewart: -- Federal Act whatever --

Mr. Charles Kohlmeyer, Jr.: I think that that so, yes.

I think that if Parker had sought recovery under the state law and his twin had sought recovery under the federal law simultaneously, I think you might have had your same situation of the twilight zone being announced a couple of years before it was.

Justice Potter Stewart: Then you say that -- that opinion seems to foreshadow the twilight zone?

Mr. Charles Kohlmeyer, Jr.: Yes.

Justice Potter Stewart: Twilight could be foreshadowed.

Mr. Charles Kohlmeyer, Jr.: I think so.

But again if the Court please, this is again a situation where there was a man who had a doubtful employment because this man, Parker, was a janitor.

He wasn't an amphibious worker at all.

He simply happened to be a janitor in a -- a small boat retail sales organization and went out on a trip with them.

His janitorial services were obviously purely local and had no smell of the sea.

He's working as a lookout onboard the small boat which I think would've rather be stretching things to call him a seaman, gave him an area that -- that he should have, I think, properly have been classified as a seaside worker insofar as the actual moment preceding his drowning was concerned.

But I have no difficulty factually in saying that Parker and Davis are identically the same because they present those very difficult factual situations that Your Honors were anxious to avoid continuous litigation on.

That, however, is not true in the instant case because new construction from 1922 on to date has always been classified as state comp -- as being a state matter because first, it's purely local and second, generally speaking, new construction doesn't have anything to do with harbor workers.

It -- it just -- I don't think the Act was ever intended to cover a new construction work.

If he happened to fall overboard, well, then he was still covered by the state law.

And Your Honors, so held, of course, in the Millers' Indemnity case in connection with the diver and several other cases in the inferior courts.

The idea that the Solicitor General had propounded as to his -- as to the question of the availability of the remedy on Nordenholt, basing on -- on Nordenholt, the theory that the dock was to be covered -- the dockside worker was to be covered, we think this just can't be justified because in Nordenholt case had been decided although the admiralty -- extension to Admiralty Jurisdiction Act had not been adopted at this time.

It was clearly shown through the jurisprudence that a man standing onboard ship as -- as Judge Brown said in his opinion below, handling one end of a bale of cotton and a man standing on a wharf handling the other end of the bale of cotton and they dropped it on their feet together and hurt themselves, one man was covered by one system, the other man is covered by the other system of compensation.

Now, this might be illogical.

It might be anything Your Honors wished to classify but the fact remains that that is what the law was.

And if this twilight zone extension covers the entire waterfront rather than this specific cases that are difficult to determine from a factual basis, then we will really have chaos in this field and there will be a great deal of litigation.

I think Mr. Justice Douglas concurred especially in Avondale-Henderson case and said that there could be no twilight zone as to a barge in a dock of marine railway where an injury occurred on that because it was particularly covered by the Federal Act.

I think that Mr. Justice Stewart and Mr. Justice Harlan both dissented in the Ross Island-Hahn case holding that there was no twilight zone except in factually doubtful cases.

And if the decision --

Justice Potter Stewart: Was the dissent -- the dissent doesn't hold anything.

The dissents are the same.

Mr. Charles Kohlmeyer, Jr.: No, if the Court please, I understand that but again, Hahn was difficult and -- and again these cases all are in such a difficult field.

And with the law being as a dynamic as it is in this field, it -- it makes it almost impossible for a practitioner to know what to advise a client and what a client should do and what a -- a laborer should do.

Justice Hugo L. Black: That was one thing the Davis case was intended to get away from, wasn't it?

Mr. Charles Kohlmeyer, Jr.: That is correct, if the Court please.

Justice Hugo L. Black: They defend the Parker.

Mr. Charles Kohlmeyer, Jr.: I think that that is exactly right.

In these doubtful cases, go on and let's don't get to a point where we're going to weigh the balance and do tenacities.

Let's give the man compensation.

Justice Hugo L. Black: How are you going to get us away from the doubt?

Mr. Charles Kohlmeyer, Jr.: I think you can have to get away from the doubt, if the Court please --

Justice Hugo L. Black: Like holding --

Mr. Charles Kohlmeyer, Jr.: How --

Justice Hugo L. Black: -- just holding on the basis of whether it's purely local?

Mr. Charles Kohlmeyer, Jr.: No, but Louisiana has -- has -- no, not at all.

Louisiana has held the Louisiana Supreme Court in the (Inaudible) case last year, held directly that there was no twilight zone as to a stevedore or a longshoreman working onboard ship.

He had one remedy and that was under the Federal Act.

Now, this doesn't involve a twilight remedy.

This involves a state remedy if he's working onshore, a federal remedy if he's working on ship.

But if you have a man that's working like Davis was, cutting down a bridge and loading a barge, if he -- if you have a man like Parker was, a janitor who was out onboard, work -- of a small boat working as a lookout, then you have your doubtful situation where Davis and Parker should create your twilight zone and let your first come first serve basis remedy serve.

This is, I think, perfectly proper and perfectly consonant with the -- what I believe Your Honors opinion was intended to do insofar as that case is concerned.

The one question that I should like to address myself to in the moment or two that remains is this question of the finality of the election.

This is a question that is not common to both cases, it's only in the Avondale case and it's a subject of the Government's supplemental brief.

The brief indicates that the point is raised for the first time in this Court.

That is not correct.

It was raised below but it was not met by the court below because, of course, they didn't get to that point but the last paragraph of Judge Brown's opinion below does treat of this question.

This man was paid compensation under the state law for two years and three months prior to the time that he took it and he said that he wanted federal compensation.

Now --

Justice William J. Brennan: However, is that statement, as I understand it, without the necessity to file any procedure?

Mr. Charles Kohlmeyer, Jr.: Yes, if the Court please.

The Louisiana Act is self-operative.

We have no commission, you'd make no reports, you simply go into the court of general -- original jurisdiction if there is a dispute.

If there is no dispute after the first week, the employer starts paying compensation and compensation is continued until it runs out or until there is a complete recovery or whatever the matter is.

Now, insofar as the payments were concerned, it is stipulated in the stip -- agreed stipulation of fact that Avondale paydays end $35 a week, which is the maximum permissible under the state law, by checks which clearly showed on their face that they represented compensation under the State Compensation Act.

There was no dispute about this.

They clearly showed that.

And it is so stipulated.

On that basis -- I see my time is up.

I might finish this one statement.

On that basis, this man got his compensations for two years and three months --

Chief Justice Earl Warren: I don't -- I don't understand you're saying your time is up.

You have -- you have ample time --

Mr. Charles Kohlmeyer, Jr.: We're splitting our time.

Chief Justice Earl Warren: Oh, you're splitting your time, are you?

Very well, I would just call it's -- that's all right then.

Mr. Charles Kohlmeyer, Jr.: On -- on this basis, if this man comes in two years and three months late and seeks federal compensation.

Now, you say, "What difference does it make?"

It makes a great deal of difference, of course, as to what the liability of the employer is as to setting up reserves as to whether or not he's going to be finished with the payment and there has to be a completion of -- of this compensation liability sooner or later.

On that basis, it is our submission that an election has been made, such an election as Mr. Justice Black contemplated was possible under the Davis case.

And once having made that election, then just as if there were an election of remedies at common law, he's barred from switching his horses.

He just does not have another bite at this cherry.

Chief Justice Earl Warren: Mr. Nelson, you may --

Argument of Louis V. Nelson

Mr. Louis V. Nelson: Mr. Chief --

Chief Justice Earl Warren: -- proceed.

Mr. Louis V. Nelson: Justice, may it please the Court.

I represent the Levingston Shipbuilding Company and the insurance care -- the Travelers Insurance Company.

As I see it, the question here is as to whether the Longshoremen's Act has repeal the Texas Workman's Compensation Act or say they decide and its all to what extent.

We have the Texas Act passed in 1913 applicable to navigable injuries.

It has been held by the courts of Texas that the Texas Act is applicable to navigable injuries.

It has been held that new construction on the Sabine River, where Levingston is the employer on, I believe, the same barge, was under the Texas Act in Gonzalez against the Travelers Insurance Company.

Now, we have here a case that unti -- as Judge Brown says until these two cases, there was no serious contention that new construction work was covered.

That has been the belief, the advice and the reasoning of the lawyers, the employers, their attorneys in the courts ever since the Longshoremen's Act was passed and prior thereto.

Even the Sabine River in Millers' against Braud by this Court, in the middle of the Sabine River, a navigable injury was held not only to be under the Texas Act but that the Texas Act was exclusive, the exclusive remedy.

Justice Potter Stewart: What case is that?

What decision is that?

Mr. Louis V. Nelson: Millers' Indemnity against Braud, about 1920.

Justice Hugo L. Black: 270 -- what court is that?

What court is that?

Justice Potter Stewart: United States --

Mr. Louis V. Nelson: The United States Supreme Court --

Justice Potter Stewart: -- confirm -- affirmed by this Court, right?

Mr. Louis V. Nelson: The -- the --

Justice Potter Stewart: 270 U.S. 59 affirmed here?

Mr. Louis V. Nelson: 270 U.S. 59 is this Courts' opinion.

Justice Potter Stewart: Affirmance.

Mr. Louis V. Nelson: And affirmance of the Texas Supreme Court allowing recovery.

Justice Potter Stewart: And this is 1924?

Mr. Louis V. Nelson: About that time.

Justice Potter Stewart: Prior to the enactment of this Federal Act?

Mr. Louis V. Nelson: Prior to the enactment of this -- that's correct.

But they particularly granted the exclusive remedy features of the Texas Act as against the contention made in that case, that the Texas Act could not bar any rights they may have on a maritime or admiralty law.

Now, the courts and the lawyers assume or familiar with the pre-1927 history.

But it hasn't been pointed out yet in the arguments here and I just want to run over the history that we are faced with at the time Congress passed this Act.

We have Jensen, of course, which held that the -- I mean the state acts could not apply.

Congress immediately saved the state compensation acts in the Act of 1917 to maritime workers and Knickerbocker set it aside.

Then the Act of 1922, saved it to the compensation under the state acts to whom and provided that it was exclusive remedy and Washington against Dawson struck that down.

At the same time thereafter, the Grant Smith-Porter case came up and specifically held that new ship construction was a matter that could be governed by state compensations laws, that state compensation laws were applicable and to be precise, that the Oregon State compensation law in its provision that it was the exclusive remedy was to be given effect.

That's the very words in the Grand Smith-Poter case.

And it was that about that time that the Millers' Indemnity against Braud which involved the Texas Workmen's Compensation Act which we have here in the same river.

One of the other cases that might be understood and bring a different light to it is the Sultan Railway case in which logging and sawing industry was recognized as something the States could provide although the men were on navigable streams.

The fact that they were on these logs and putting them in booms did not make the federal law applicable nor the fact that other men at the end of the line were taken them out of the booms and guide them up to conveyer to the sawmill and they held that that was not.

Now, that's before the Act.

At the time Congress passed this Longshoremen's Act, that's what they had.

Some cases allowing the state acts to apply and some cases allow -- not allowing the state acts to apply and two attempts on their part to allow the state acts to apply in all cases having been struck down, they were forced to pass this Act.

We need not go to the record back in 1926 or 1927 because certainly, it's been examined many times before.

There is an indication though in page 37 of the petitioner's brief that shows the purpose of the Act does not to include new ship construction because it says the purpose of this bill is to provide for compensation instead of liability for a class of employers commonly known as “longshoremen”.

These men are mainly employed in loading, unloading, refitting and repairing ships.

But that's what Congress was faced with at that time.

And immediately after the passage of the Act, the Bureau issued its own opinion number 7 which I have the -- is in the petitioner's brief in the appendix in which it specifically held that new ship construction would not be considered, that's the petitioner's brief page 83 and the actual holding and based upon this Rohde case and the Francis McDonald that new -- employers en -- engaged in new construction would not be considered covered by the Act even though they also did ship repair.

Now, since that time up to the present time, we have the -- this Court's pronouncements but not directly as on new ship construction.

The Court is familiar, however, with the provision placed in the Act by Congress.

It can be read several ways and I know that in some of the decisions it has been quoted several ways but the words do include “But only if recovery may not be had under the State, validly had under the State law.”

As to that provision is been quoted in 1930 in Cook and Nogueira, in 1932 in Crowell against Benson, in 1941 in Parker, 1942 in Davis, 1953 in O'Rourke, and 1959 in Hahn.

I believe that is all of this Court's decisions that have attempted to construe or interpret that provision.

Now, we have the Bureaus opinion already that is in charge of enforcing this Act.

We have the dissenting opinion in Cook, I'm not quoting it for its holding but it is the first pronouncement I could find that referred to the Section 3 (a), that portion of it where it says, "But only if recovery may not validly be provided by the -- the State Act."

And what does Cook says?

Cook uses the word “withheld”.

Withheld covers and it says this, "But the remedies given by the Act or withheld where a recovery maybe held on the local Compensation Act.”

Nogueira is another case, it followed in 1930 and referring to Section 3 (a) he says, "Explicitly made to depend upon whether recovery could be held."

The exact words is, "The application of the Act in such cases was explicitly made to depend."

Now, Nogueira might pose one moment there, Nogueira, we mustn't forget because O'Rourke is Nogueira.

There is absolutely no difference between the two and here's the 1930 case that held the Longshoremen's Act applicable to a railroad employee and it was nothing that could be done but follow Nogueira and O' Rourke case, as O'Rourke says, "There's no difference between the employments in the two."

But the Nogueira case is at 281 U.S. 128 and a 1930 case.

And we have the -- those two opinions, Crowell against Ben -- Benson used this word, "limiting the application."

The opinion says, in limiting the application of the Act to cases where we're covering through workmen's compensation proceedings may not validly be provided by a state law.

The Congress evidently had in view the decisions of this Court with respect to the scope of the exclusive authority of the National Legislature.

Now, where could we get better authority for the interpretation of the intention of Congress in this Court's pronouncements as to its interpretation, and the footnote to that quotation cites Jensen, Knickerbocker, Washington in that line of cases for authority of no coverage under the State and Grant Smith-Porter and Sultan Railway in that line of authorities for recovering under the state workmen's compensation.

Now, we come to Parker-Motor Boat in 1941 and language used in that case with reference to these three "A".

Congress have and expressly kept out of the area in which recovery may validly be provided by a state law or again, Section 903 (a) appears to be subscrac -- subtraction from the scope of the Act.

1942 with Davis, here again, however, Congress made clear its purpose to permit state compensation protection where an -- whenever possible by making the federal law applicable only if recovery made not be validly provided by state law.

And O'Rourke, outside the reach of state compensation law, the exact quote is this, "New Jersey could not have enacted statutes granting compensation for respondent's injury on navigable waters, therefore, respondent comes within the coverage of that portion of Section 903 (a) that includes those outside the reach of the state compensation law.”

And finally to the last decision, Hahn, 1959 and what words did it use does not apply.

The Longshoremen's Act does not apply.

The exact quote is, "By its terms, the Longshoremen and Harbor Workers' Compensation Act does not apply if recovery for the disability or death through workmen's compensation proceeding may validly be provided by State Law.”

Now, we must completely eliminate that provision in Section 9 -- 903 or 3 (a) where in it says, if Your Honors please, that the coverage is only if recovery cannot be validly provided by a state law and in every -- every discussion or pronouncement by this Court since the Act was passed, you need not go any further but each one has recognized that there's some subtraction, some withholding, some taken their way or some restriction or some limitation or some outside the reach or that the Longshoremen's Act does not apply because of this very section, that's the opinions of this Court in each and every case.

The answer to this problem, if they'd be a problem by a problem, I mean other than this one lawsuit here, the answer to this problem cannot be obtained by holding the injuries on navigable water or compensable under the Longshoreme's Act.

That's an extension of the Jensen doctrine but be that as it may, it will certainly be an extension of other forms shall be.

Anytime the jurisdictional line is let down or expanded to live, that doesn't end it because it will be contended that it goes a little bit further.

I might divert here because it was brought out in the brief and here in the presentation to this Court, that it is the intention of Congress to give speedy and inexpensive relief and that it would be delayed any expense involved if the Court did not look on the Act so liberally as to let it apply to anyone who wanted to come under it.

But now, this case we have here today, this Travelers Insurance case, my own client, we have paid the claimants in this case more than the Texas workmen's compensation law, and why?

Because we're paying it on an order number 3 made by the Deputy Commissioner after he twice said we did not owe it.

But certainly a change was held in one of the District Courts in Louisiana and the Department came in and said, "We are wrong, send it back" in the third time he awarded the compensation.

Now, what is the delay?

We are paying no relief because of the fact that the claimant cannot replay -- repay is not sufficient to obtain a stay under the compensa -- Longshoremen's Compensation Act so even if -- if the claimants should lose, they will win and if they win, of course, they will win.

There is no way to get out for a month.

And as to the expense, they are furnished competent counsel by the Government.

They are well protected.

If there's any question that someone may come under the Longshoremen's Act, they have no hesitancy at all to get the protection that they need by the federal courts and by the Government's attorneys.

May I call the Court's attention to this, that this is a diversion but it was pointed out that to get so much more money under the Longshoremen's Act than they do under the Texas Act, well, now that all depends.

Now, at this time, I'm sure the Longshoremen's Act provides more for a week -- per week and for a longer term.

But that can change and it is noted that the cases that have come up claiming workmen's compensation under the Longshoremen's Act have been death cases.

You don't see them coming in and claiming back into it because then they run to the Texas juries or a finger injury that involves their wrist and the pain goes up into the shoulder and produces total impairment, because then they go to the Texas juries to get more but part --

Justice Potter Stewart: You got a jury in Texas --

Mr. Louis V. Nelson: Yes, sir.

Justice Potter Stewart: -- workmen's compensation?

Mr. Louis V. Nelson: Yes, sir.

Justice Potter Stewart: Really?

Mr. Louis V. Nelson: After the hearing before the Industrial Accident Board, which is a matter of form, either side can appeal and is a trial mainly before 12 of their workmen sometime they -- sometimes they are of a different trade than the injured party.

Justice Potter Stewart: With a special kind of jury?

Mr. Louis V. Nelson: Ordinary selection of the jury and the jury will --

Justice Potter Stewart: And is there a -- is there a limitation on the awards or -- or is the -- is there no -- no ceiling on it?

Mr. Louis V. Nelson: There is a limitation.

Justice Potter Stewart: And usually the question for the jury is whether or not it's permanent disability or --

Mr. Louis V. Nelson: Total --

Justice Potter Stewart: -- partial.

Mr. Louis V. Nelson: The variety of question which we might say result in a finding of total impairment for a minor injury whereas the Deputy Commissioner who passes on is familiar with these doctors that testify all the time and his finding is final except as to matters of law.

And Parker is a death case, Avondale is a death case, and U.S. case versus Taylor is a death case.

U.S. case this new construction and turned it back and Parker and Avondale to let it stand.

But the only position I might take in this matter, which I think we must all agree, and that is that there must be some line drawn somewhere upon the applica -- application of this Longshoremen's Act and exclusive in the same way with reference to the Texas or any other state act.

Now, perhaps, I'm diverting but sometimes the -- the examples I -- I think that some of the opinions here pointed out show that examples or the or -- or -- are helping clarifying -- thinking sometime unless we step into a trap.

Now, if we have -- I have answered the petition in my brief and I -- I won't let this time take this -- the time to answer with reference to this one contention but if we say that we have navig -- an injury on navigable waters and it is therefore under the Longshoremen and Harbor Workers' Act, where are we going to stop?

Is the clothing salesman that goes to Galveston, Texas on the ferry that crosses the Houston ship -- ship channel, is he under the Act?

Justice Potter Stewart: But his employer wouldn't be a government employer, would he?

Mr. Louis V. Nelson: If the -- if U.S. Steel or Bethlehem Steel or somewhere on that.

Justice Potter Stewart: (Inaudible) appointed to?

Mr. Louis V. Nelson: Well, they might have something just like --

Justice Potter Stewart: Have any in some of these days.

Mr. Louis V. Nelson: The point -- my point is when is the legal enmity going to stop?

How about the one that has the repair shop and the new shop at Galveston, Texas but in -- on the Atlantic Coast has only the new construction, is the one with only the new construction -- that new construction not covered or is the one that has the repair and the new construction at Galveston, new construction is coming or suppose that the -- it is the same legal entity to -- that owns both plants then there's new construction on the Atlantic in that plant covered even though the one next to is not covered, both doing only new construction but one owning a repair plant in Galveston and the other not only a repair plant or has in a separate corporation?

Is the employee who's out fishing in a small boat in the Sabine River catching bus and has a customer and in the course of his employment covered by the Longshoremen's Act?

The position here of the petitioner, I believe if I interpret it other than the quotes from the Congressional Record, is to -- is depended upon O'Rourke.

O'Rourke states at the outset that it was granted because of the Nogueira case that held exactly the same thing that O'Rourke had to finally hold and that that the fact that the employee was generally employed as a railroad man was immaterial in determining the act -- the Longshoremen's Act would apply if at the time, he was actually engage in what would be interpreted maritime employment and at the time he was engaged in unloading a railroad car that was on a barge on a navigable stream and they considered the unloading of that railroad car on the barge the same as if he was unloading a vessel, what is the difference?

And O'Rourke followed that exactly and quoted that the -- both services in both cases were maritime service.

Now, O'Rourke said this, our differ -- if petitioner's position on O'Rourke.

When O'Rourke discusses the fact that it is important to know whether the employer has other employees or any employees engaged in maritime service, O'Rourke is speaking of the application of the exclusive remedy provision of Section 905 where it says, "In reverse to employer who is defined as a person who has any employees in maritime service."

In other words, the opinion first takes up the question of coverage and refers specifically to Section 903 (a) and refers specifically to the withholding portion, if recovery may be held under a state, and then concludes that the Jensen line was the line of demarcation that the State in the O'Rourke case could not have awarded compensation that therefore it was within the Longshoremen's Act because it could not have been provided by the State.

From that point on, O'Rourke then discusses as to whether it will be the exclusive remedy as against another federal statute and then they look to the definition of employer in Section 905 and say that in that instance, if he has any employees, then it will be the exclusive remedy and that's the way I interpret O'Rourke.

I might point out this to the Court.

It's quite a difference or appears to me to be quite a difference between the application of the Longshoremen and Harbor Workers' Act and the application of the state act from the standpoint of Your Honors.

In the first place, as I read the decisions particularly Davis in the per curiam after that, Davis merely came to the conclusion that Jensen was probably wrong or at least a lot of people thought it was right or wrong and a lot of judges though it was wrong and probably some of them now think it was wrong.

And all that Davis said is, "We just won't find any constitutional obstacle to apply in the State law because otherwise, we must, in this case, hold that the law of the State for workmen's compensation is unconstitutional and we must presume validity of the State law."

And that is the last word of the holding of the majority opinion that we find no constitutional obstacle or objection I believe it was.

Now that the -- the position that I take on behalf of respondents here is that Moore and Baskin which allow state coverage was merely a court saying that they would find no constitutional objection to the application of the state law and the did not say that they would not apply the Longshoremen's law obviously because it was repair of a vessel afloat on navigable waters.

But the Court did hold in saying Davis in the per curiam decisions that we will find no constitutional objection.

How far that would go?

We do not know.

But that is an entirely different holding.

That is a disagreement with Jensen.

On the other hand, to hold that new construction in face of all of the preexisting authorities, pre-1927 and post-1927, to hold that that is under the Longshoremen's Act, is an extension of the Jensen, further, and a holding that the state act cannot apply because you're -- the Court has the decision of Grant Smith-Porter to exclude it in their own interpretation since that time, the Bureau's own interpretation and the words of the statute itself.

I have only one other thing to note to the Court and it's probably insignificant but the counsel for the petitioner referred to the second award but we did get two awards from the Deputy Commissioner.

In this case, just -- I want to bring that out just to show the Court how this thing has been handled all along all the years, two times.

First, he denied it completely, he filed a suit to set aside, it was pointed that out that perhaps it was not on the Texas side of the river or no one knew where the line was anyway whether if it's in the middle or on the bank.

So, it went back remanded by the District Court and the second time, the Commissioner again denied recovery and referred to the same thing that it has never been held that new construction was under.

And it was only the third time that it was sent back to him at the request of the attorneys for the Bureau in a suit to set aside in the Western District of Louisiana that this award came up against the Travelers and the Levingston Shipbuilding which is the -- made the basis of this claimant's suit.

Justice Potter Stewart: Is there any evidence of -- exterior to the record in this case in the story that you've just told us, is there any evidence of administrative change of mind in this whole area?

Mr. Louis V. Nelson: Well, other than they're here, Your Honor --

Justice Potter Stewart: Because of?

Mr. Louis V. Nelson: -- as I understand the Bureau represent --

Justice Potter Stewart: The first two times the Deputy Commissioner disallowed the recovery and based to that on the statement that the compensation or --

Mr. Louis V. Nelson: It is true.

Justice Potter Stewart: -- in fact have never been -- never been held to apply to new construction, did that twice and then at the request of the -- the counsel for the Deputy Commissioner was remanded to him the third time and he didn't arrive about face, is not it?

Mr. Louis V. Nelson: Is February 18, 1959 a rejection with that quotation that's -- that never had been held and July the 30th, 1959, that's about six months, the same thing and they -- the final order was May 13, 1960.

And the only notice we have of any change of opinion was, in fact, that they came in and we were on the same side that is Deputy Commissioner Calbeck and the employer carried to sustain the award and I don't know whether it was an original answer or an amended answer to which they, in effect, say that “We, Travelers and Levingston, all are incorrect remanded for a change in the law.”

Justice Potter Stewart: Now, that was early, what did they rely on in thinking that (Voice Overlap) --

Mr. Louis V. Nelson: That was -- I don't know, that was purely procedure in answer to a complaint filed in the Western --

Justice Potter Stewart: They didn't refer to any administrative or any change in the administrative (Voice Overlap)?

Mr. Louis V. Nelson: None that we know of.

That -- I'll put it this way, if Your Honor please, there is nothing in this record or nothing in the hearing or nothing in the prior proceedings to indicate any official change an opinion.

Our ruling --

Justice Potter Stewart: Obviously -- obviously a change did occur.

Mr. Louis V. Nelson: Some change occurred somewhere, sometime whereas the letter to me from the Director, I -- I asked him, I see it's in the brief, page 85, I believe, he said that he knew of none since 19 -- before 1959 that allowed recovery but they qualified their opinion.

And he referred to this -- this opinion number 7 as not exactly an administrative ruling or determination or opinion.

Chief Justice Earl Warren: Mr. Solicitor General.

Rebuttal of Cox

Mr. Cox: Mr. Chief Justice, may I take just a minute to then -- effort to clarify a few points.

There is some little light, Mr. Justice Stewart, some dim light on this in a letter beginning at page 84 of the Government's brief from the Director of the Bureau of Employees' Compensation and the United States Department of Labor.

I'm relying very largely on it and what additional advice I've been able to get here from my assistants the last few minutes.

Apparently, the Deputy Commissioners, up until about 1959, did feel that they were bound by that 1930 or thereabouts opinion.

Then when this Travelers Insurance case was taken to the District Court on appeal by the -- the state of the dissident, the Department of Labor became in charge for defending the Deputy Commission.

And as I understand it, its lawyers felt that in view of Parker and O'Rourke, they had no defense.

And it was at that stage that it was requested that the matter be remanded.

I have no -- I take it that the Deputy Commissioner in the colloquial word got the word one way or another.

I doubt from what I'm able to learn that he was directed to change his opinion that apparently, the events were enough to persuade him.

After 1959 or thereabouts, in the light of this Court's opinions and most particularly the O'Rourke opinion, the Department of Labor, and I believe it shouldered down to the Deputy Commissioners, began to change their view.

A second point which I should mention is that in my opening argument with respect to the payments under the Louisiana Compensation Act, I went inadvertently way beyond the record.

I misunderstood a passage in our replied brief.

It was not accurate for me to say that the payments were simply indicated as payments of compensation or the stipulation clearly sets forth that they showed there were payments under the Louisiana statute.

We do point out that they were, in fact, were more than would be due under the Louisiana statute.

And I had that fact in mind that was misled by but the stipulation is perfectly plain, of course, I don't attempt to go back on it.

Two other points that I would like to make clear, although, perhaps, they are of the essence.

But first, let me make it plain, especially in view of Mr. Kohlmeyer's argument, that there was never any doubt about power of the Congress to enact the Compensation Act or any other legislation reaching in to this maritime but local area.

Justice William J. Brennan: But even if there was validly (Inaudible)

Mr. Cox: State law it's --

Justice William J. Brennan: (Voice Overlap)

Mr. Cox: -- still could be subject to -- and I think perhaps I assumed that, without making it clear enough to begin with, the state law in this maritime but local area came in either to supplement or indeed there's some thinking that it came in and was adopted by the admiralty and applied as if it were admiralty law but I don't need to go that far, the point is the defense --

Justice Potter Stewart: Well, now, Mr. Solicitor General, I've just -- I haven't -- before me now because within the last few minutes, I read the Court's opinion in Millers' Indemnity, this Court's opinion in which the opinion stated that this would be a matter in which admiralty would have jurisdiction except that it was maritime and local and the State had acted with its Compensation Act and therefore, maritime -- the Government -- Federal Government could not (Voice Overlap) --

Mr. Cox: Well, but isn't it -- isn't it everything except could not.

It was that the admiralty court wouldn't done under those circumstances --

Justice Potter Stewart: I could not --

Mr. Cox: -- there's no --

Justice Potter Stewart: -- I don't have it but I had a (Voice Overlap) --

Mr. Cox: -- but the Congress do act in this area.

It seems to me quite clear.

Let's step aside from the compensation field for a minute.

Take the matter of wrongful -- wrongful death and they sue the common law where under the Garcia and others that laid the foundation through this, state wrongful death statutes were allowed to supplement the admiralty.

I take it that if Congress were to pass a uniform law applicable in the admiralty for that area, then no one would dispute the power of Congress to act.

And I submit to you that the Rohde case is simply an application of Wester Fuel against Garcia and lack points.

Now, the reason I emphasize this, if I may take just one additional moment --

Chief Justice Earl Warren: You may.

Mr. Cox: Mr. Chief Justice.

Is that, of course, this concluding -- the -- the references to Jensen in the legislative history and in this Court's opinions, say in Parker, the references to Jensen do not necessarily carry with them references to Rohde and the maritime but local rule.

There's no reason to suppose that they must have gone hand in hand in the minds of the authors of those opinions or the authors of the Senate Committee report.

Indeed, most of the commentators had treated them as quite separate and the maritime but local is being a retreat from Jensen.

So that seems to me that one could take the words but not if recovery may be validly provided by state law as incorporating Jensen without the rubric of Rohde and other cases on it rather than as incorporing -- incorporating it with that revert.

Now, my final point is that the real issue here is whether, although we think we would have a good case even in terms of the original statute, is whether this case is to be decided as if it were 1927 or in the light of the growth and evolution of this statute in the intervening 35 years.

And that's epitomized by essential difference between Mr. Kohlmeyer's argument and my own.

Mr. Kohlmeyer said it would have been very easy for Congress to impeach this upon a locust -- locust theory rather than upon type of employment and went on to argue in terms of type of employment.

And counsel for Travelers put us issues of clothing salesmen and people out on a single boat ride, again, referring to type of employment.

That question was plainly decided first by Nogueira and then by O'Rourke.

And the Court's words, they are precisely applicable here.

We've clear that the emphasis on the nature of respondents' duties misses the mark.

The statute applies by its own terms to accidents on navigable waters when the employer has any employees engaged in maritime service.

And we think just as it epitomizes the difference so that language in the O'Rourke case which had been followed in the Circuit Courts including the opinion in the Sixth Circuit that I mentioned is dispositive of the case.

Justice Byron R. White: Well, Mr. Cox, you still say though that -- that Morse -- the Morse case requires you to say that this is in the twilight area rather than any clear area.

Mr. Cox: Well, I think -- I would put -- I would say that one could resort to state law on these facts.

I do not contend that these men would have been barred from proceeding under state law.

I say --

Justice Byron R. White: So you say this is a -- is an election question.

This isn't clearly federal clearly matters --

Mr. Cox: I don't think I should -- I don't think I have to argue this clearly federal and -- and I don't.

I say that the effect really, I think what might, to bring my argument into one single point.

I would say that the policies that lie behind the twilight zone because it isn't just a slogan, it represents some important policies in the growth of this statute in the award of compensation and I say that the language of the statute, the legislative history and those policies are enough to carry one at least out to the line laid down by O'Rourke which corresponds with the exact words of the statute except for this somewhat doubtful phrase that we've been arguing about and as to that I say can be given meaning in terms of Jensen alone without incorporating the doctrine of maritime but local.

Chief Justice Earl Warren: Very well.