NORTHEAST MARINE TERMINAL CO. v. CAPUTO

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Argument of William M. Kimball

Chief Justice Warren E. Burger: We will hear arguments first this morning in no. 76-444, Northeast Marine Terminal against Caputo, consolidated with 76-454, International Terminal against Blundo.

Mr. Kimball, I think you may proceed when you are ready?

Mr. William M. Kimball: Mr. Chief Justice and May it please the court.

These consolidated cases present first impression questions as to the meaning and scope of the status and situs 1972 amendments to Sections 2(3) and 3(a) of the Longshoremen and Harbor Workers’ Compensation Act.

Petitioners in 76-444 whom I represent, have always conceded that there is no situs question in their case and so I hope to be permitted to limit my remarks to the status question.

These consolidated cases present the status question in two distinguishable fact situations.

In 76-444, the employee Caputo was helping load a consignee’s truck with break bulk boxes of cheese.

In 76-454, employee E. Blundo was tallying cargo which was being removed from a shipping container.

Therefore, I hope to be allowed to focus my remarks on whether employees doing this sort of work which Mr. Caputo was doing, truck loading work have the coverage status.

Now, the threshold question is whether I may properly focus solely upon the work which Mr. Caputo was doing when he was injured or whether as did the majority below.

I must also consider the fact that on other occasions, Mr. Caputo spent a significant part of his time aboard ships doing the traditional loading and discharging work of a longshoreman.

Neither the Administrative Law Judge nor the Benefits Review Board paid any attention whatsoever nor even mentioned what Mr. Caputo did on other occasions.

The Administrative Law Judge specifically fixed Mr. Caputo’s status at the time of the injury and the board affirmed on the ground that at that time, he was loading and discharging a ship and not loading a truck as Judge Widener discerned in a similar fact situation in the Adkins case which is initially cited on page 5 of petitioner’s blue covered brief.

The legislative history is not crystal clear.

The majority below and the First and Third Circuit Courts of Appeals have held that status should not be determined solely as of the time of injury.

The Fifth and Ninth Circuit Courts of Appeals have held to the contrary.

This court in decisions prior to the 1972 amendments, has held that Section 3(a) situs, Section 2(2) injury in the course of employment and Section 2(3), Section 3(a)(1) exclusion of crew members must all be determined at the time of injury and not with reference to what the employee generally did on other occasions.

It’s suggested on our brief that it would be anomalous, if Section 2(3) employee status were determined on the basis of what the man generally did, but then he was excluded under the same Section because of what he was particularly doing on an occasion.

It is further suggested on our brief that the general functional criteria will be almost appallingly difficult to administer and adjudicate for reasons which we have suggested at pages 10 and 11.

Now, the federal respondent has distorted our first point by suggesting that longshoremen who are working on a ship and who are obviously covered by both the old and the new Act would not be covered while they were using the ship’s toilet facilities.

They would be, because of the work they were doing or had been assigned to do, and they would also be covered while they were taking a coffee break aboard the ship because of the work which they had been assigned to do.

Although the federal respondent makes an important concession that Congress’ express intent to extend coverage “To employees who would otherwise be covered by this Act for part of their activity implies that only persons who might have been partly covered under the old Act are covered under the new Act and parenthetically I would respectfully suggest to the court that in context of what I had just quoted by this Act” pretty clearly means by the old Act which the committee was looking to amend.

As I say although the federal respondent makes that important concession, it argues that because of what it says is the risky task of cargo handling on the waterfront, all “physical” cargo handling activity within the statutory situs confers statutory status.

We have a stipulation in 76-444 that the work which the employee was doing, namely loading cheese in a consignee’s truck with the assistance of a dolly, had the same risk factor wherever trucks are loaded or unloaded with dollies.

Now, presumably the government’s suggestion that there should be a limitation on physical activity was meant to exclude clerical employees on the situs who as Judge Friendly wrote, are not covered even by the most liberal construction of the statute.

I should add also parenthetically that in a considerable number of un-appealed Benefits Review Board decisions, the Board has held that clerical personnel are covered by the amendments.

Unknown Speaker: What would clerical personnel be doing on the dock?

I can understand a checker or somebody keeping track.

Would that be within your definition of a clerical employee?

Mr. William M. Kimball: I am thinking more precisely if Your Honor pleases, these are vast installations.

Unknown Speaker: Yes.

Mr. William M. Kimball: And they have offices on these terminals.

No longer do the executives go to the city and conduct or work long range.

They are down on the terminal and of course they have all the usual clerical people down there.

Secretaries…

Unknown Speaker: Telephone operators?

Mr. William M. Kimball: Telephone operators, all of people of that sort.

Unknown Speaker: I see.

Who were employees of Longshoreman?

Mr. William M. Kimball: They are employees of a statutory employer, if Your Honor pleases.

Unknown Speaker: (Voice overlap)

Mr. William M. Kimball: Because that employer has some of its employees who definitely are working loading and discharging --

Unknown Speaker: At site the as on the dock?

Mr. William M. Kimball: That is true sir.

Unknown Speaker: And one of the work of a secretary is hazardous?

Mr. William M. Kimball: Excuse me if Your Honor please?

Unknown Speaker: Is a secretary’s work hazardous?

Mr. William M. Kimball: I do not conceive it to be so, no.

Unknown Speaker: Well then how is it covered?

Mr. William M. Kimball: It is not covered according to the opinion below, but the Benefits Review Board has repeatedly decided.

Unknown Speaker: On what basis, is what I want to know?

Mr. William M. Kimball: Well the Benefits Review Board, if Your Honor pleases, is virtually reading situs and status requirements out of the statute.

They seem bent upon extending this coverage to an appalling extent.

They would blanket, I believe the United States with this coverage, if they could do so.

In the thousands and thousands of cases which are now must be before the Benefits Review Board, I do not recall a single one in which an employer has prevailed.

Unknown Speaker: Would not a bookkeeper or a telephone operator whose place of employment was on the dock and whose employer was followed in the definition of 2(4) and that would be maritime employment because that is the employers’ business, so would not a telephone operator or a bookkeeper fall within the literal terms of these two statutory provisions?

Mr. William M. Kimball: No sir.

They would not fall within the literal terms of the statute or within its intendment terms.

Because of the necessity --

Unknown Speaker: The necessity of intendment -- just I think, how about the literal terms?

You do not think they are in maritime employment?

Mr. William M. Kimball: No, if your Honor pleases because of the definition of employee in section 2(3).

Unknown Speaker: Where are you referring to?

Mr. William M. Kimball: I am referring on page 1 of an appendix in the blue brief.

Unknown Speaker: Which is on page 3 on your brief, I think, is it?

Mr. William M. Kimball: That may be there as well sir?

And the language there is, employee means any person engaged in maritime employment and so on and on.

Unknown Speaker: Well, do you not think that a telephone operator employed by Stevedore & Company whose business is to load and unload ships, is engaged in maritime employment?

Mr. William M. Kimball: No sir, because I believe the statute necessitates that the employee of the Stevedore be engaged in loading and unloading ships.

Unknown Speaker: Well, we are talking now about maritime employment.

Mr. William M. Kimball: That is right sir.

Unknown Speaker: Then it says including any Longshoreman but that just stopped with the first phrase, would not the clerical employee be covered?

Mr. William M. Kimball: I do not conceive it to be so.

Chief Justice Warren E. Burger: Well, are you reading the following phrase after the word Longshoreman as modifying the entire concept that is “or other persons engaged in longshoring operations” and you say I take it that the secretary is not engaged in longshoring operations even if she works for a maritime employer.

Mr. William M. Kimball: That is true sir.

Chief Justice Warren E. Burger: And that would be true to the telephone operator or all the other people who do not actually --

Mr. William M. Kimball: Participate in some way in the movement of cargo.

Participate in some way other than remotely by shuffling papers or doing things of that nature.

Unknown Speaker: There is no other definition of maritime employment in the Act?

Mr. William M. Kimball: There is no definition of maritime employment in the Act Your Honor, and that of course has been the difficulty all along.

Unknown Speaker: Mr. Kimball, on the question of situs 2, do you read the definition in 3(a) as including buildings which are on a pier or?

You have a list of things, none of which includes a building, but they do include building way which kind of suggests to me they did not intend to include building.

Mr. William M. Kimball: You Honor, I read the situs requirement as including structures on a pier, dock or adjoining structure.

Unknown Speaker: What is a building way mean in 3(3)?

Mr. William M. Kimball: I am trying to find it.

I think building way, if Your Honor pleases, is a structure having to do with the construction or repair of ships.

It goes along with marine railway.

Now, adapting a suggestion in the Third Circuit Johns’ case, the federal respondent argues that congress’ inclusion of “employees who pick up, I say inclusion on this book myself and badly so, and this gets into why we don’t cover telephone operators perhaps.

Congress specifically excluded “employees who pick up stored cargo for further transshipment.”

The government respondent argues that that must necessarily mean truck men who received delivery of cargo for further overland transportation, but that interpretation makes the last two sentences of the committee report, which are quoted on page 5 of the appendix to the Blue covered brief.

It makes those last two sentences idiotically redundant and it ignores the fact that by statutory definition, those truck men are not covered by the Act because the trucking companies are not statutory employers as defined by Section 2(4) of the statute.

And I would like to point out, because we had read these things so many times and the words escape us unless we read them over and over, but it is interesting to note the distinction which the committee is making and I think inarguably with a malice aforethought if you please, on this fifth page, they talk up there towards the top, does employees, thinking in terms of statutory employees, whose responsibility is only to pick up stored cargo and so forth.

Then they talk down the last two sentences about individuals and they talk not about employers, but they are talking about persons and then they make an interesting distinction, at the very last two lines they talk about navigable waters which under the expansive situs definition, we know includes shore installations of discharge that Mr. Justice was remarking about, but here they draw a distinction between navigable waters and pier adjoining navigable waters, which under the amended definition is part of navigable waters.

Now the federal respondent has made some diversionary suggestions which I respectfully submit both to the federal respondent and to this Honorable Court are less than helpful.

They refer, for instance to defense based Act decisions by this court, The O’Leary case.

Unknown Speaker: Mr. Kimball.

Mr. William M. Kimball: Sir?

Unknown Speaker: Before you leave your point about navigable waters including a pier, I did not understand the argument you have based on that last sentence.

I did not understand your point at all.

Mr. William M. Kimball: If Your Honor pleases --

Unknown Speaker: I understand that the pier is within the statutory definition of navigable water and the report says the pier is to be distinguished from navigable waters, which seems inconsistent?

What do you draw from that?

Mr. William M. Kimball: I draw from that, if Your Honor pleases that the last two sentences of the report are an effort to indicate that truck men who are employed by trucking companies are not intended to be included.

Therefore, in an earlier part of the report, when the committee excludes employees whose responsibility is only to pick up stored cargo for further transshipment, they are not talking about truck men or employees of trucking companies.

They are talking about somebody else and I respectfully suggest that they are talking about people like Caputo or indeed people who are performing functions like Mr. Blundo which Mr. Prettyman will talk about in just a moment.

These defense based Act citations, I suggest are not helpful.

The court has held that being injured at a defense based Act situs is not sufficient to entitle an employee to compensation.

The decisions which the government has cited hold that the injury must result from a zone of special danger risk at the defense based situs.

We know by stipulation that Mr. Caputo was not performing any high risk longshoring activity, for which as the majority below conceded the Act is intended to compensate.

The federal respondent pleads for deference to the Benefit Review Board, consistent administrating of interpretation, which as I have, I hope not offensively, suggested to the court and as is recognized by the majority below, is a bootstrap operation by the Board wherein they started off the first day, expanding this Act, I think beyond meaning and as illustrated in the reply brief in 76-454, the Board has given virtually no heed to any status or situs limitations.

Unknown Speaker: Well, it would not be the first government agency that did that sort of thing, would it and it is a lot of those have been upheld by this court as being administrative constructions.

Mr. William M. Kimball: I think the difficulty if Your Honor pleases is that the Benefits Review Board does not appreciate that in ever expanding the statute it maybe depriving employees of other rights and remedies which are superior to those provided by the Act.

I suggest for instance that if you expand the statute to the ultimate limits then no one is ever going to be able to sue under the authority of this court’s decision in Gutierrez, no one is going to be able to sue a ship owner for damages because of an un-seaworthy cargo container nor is a railroad employee is going to be able to sue.

Thank you, Your Honors.

Chief Justice Warren E. Burger: Mr. Prettyman

Argument of E. Barrett Prettyman, Jr.

Mr. E. Barrett Prettyman, Jr.: Mr. Chief Justice and May it please the court.

I am Barrett Prettyman and I represent the International Terminal Operating Company which I will call ITO, the employer of the injured employee, Mr. Blundo in this case.

ITO really wears two hats.

It is a stevedoring company whose traditional job is to load and unload a vessel, but it is also a terminal operator.

It employs terminal workers and warehouseman to do the remaining work that needs to be done on a terminal after the ship is loaded or unloaded.

Mr. Blundo is a checker and had been for some five years with ITO.

Interestingly, checkers also wear two hats.

A checker can be at the vessel’s edge checking the seal for example of containers as they come off the vessel and he is part of the longshoring operation.

He checks those containers as they are lowered as they first hit the pier.

That is the checker “directly involved in the loading or unloading functions” that Congress referred to in their reports and those are the checkers that they said were going to be covered and of course we contend that they were going to be covered because they are part of the loading or unloading process.

But Mr. Blundo at the time of the accident and most of the other time was wearing his other hat as a checker, that is, he was engaged some distance away from where the loading and unloading had taken place.

He was removed both distance and by function.

He was at a different terminal.

A substantial period of time had passed since the container that he was working had been unloaded and this particular container was being stripped in a warehouse used for customs inspection.

His sole job was to break the seal and as the contents were unloaded by strippers, he was to check them against his manifest to make sure that the contents inside the container corresponded with the manifest that he had and were the right things.

Unknown Speaker: Was this container unloaded at this pier?

Is this the case were we do not know where even that it was unloaded in this pier or from what ship?

Mr. E. Barrett Prettyman, Jr.: That is correct.

We know that it was not unloaded at this terminal, but we do not know where it was unloaded.

Unknown Speaker: Or from what ship.

Mr. E. Barrett Prettyman, Jr.: Or from what ship or by whom.

Unknown Speaker: And it might have come by truck from the pier.

Mr. E. Barrett Prettyman, Jr.: We do know it came by truck.

I happen to know it came 14 miles because I measured it, but that is not in the record.

The record does not even show how far it came, but he himself did not know whose it was, from what ship it came, from what terminal it came, or even who unloaded it.

Unknown Speaker: Or how long it had been?

Mr. E. Barrett Prettyman, Jr.: Or how long it had been there.

He said that sometimes the period of time was up to a week and another witness said that is quite off and even longer than that before they got to the particular function that he was engaged in.

Unknown Speaker: Where was this, on north side of pier or?

Mr. E. Barrett Prettyman, Jr.: What?

This was a 19th St. Pier in Brooklyn where he was engaged.

Unknown Speaker: In Brooklyn.

Unknown Speaker: And when you used the word unloaded you mean removed from the ship to the dock?

Mr. E. Barrett Prettyman, Jr.: And taken to the first point of rest.

Unknown Speaker: But there is no question what this container came from a ship?

Mr. E. Barrett Prettyman, Jr.: That is correct, no question.

Now, we say that Mr. Blundo was not directly involved in the loading or unloading functions which I have just referred to as Congress’ criteria as to whether he was to be covered or not.

Unknown Speaker: Is it your contention that everything that happened up to where the container was, was part of the unloading process?

Mr. E. Barrett Prettyman, Jr.: The unloading process starts when the container is taken out of the hole or off the top of the ship, kind of, depends upon whether you are break bulk or container operation and taken down to the ground and then moved either to the marshalling area for the container or the transit shed for the break bulk cargo and at that point, when it reaches that point, you are loading or unloading.

Unknown Speaker: So your answer is yes?

Mr. E. Barrett Prettyman, Jr.: Yes sir.

Unknown Speaker: You would back a little point rest for?

Mr. E. Barrett Prettyman, Jr.: Absolutely!

Unknown Speaker: But you do not want to stay there, do you?

Mr. E. Barrett Prettyman, Jr.: Actually that is where I want to stay.

I am advocating the point of rest.

Unknown Speaker: And do you think the 1972 amendment had nothing to do with this?

Mr. E. Barrett Prettyman, Jr.: Well, I think the 1972 amendment adapted point of rest, because 1972 amendment specifically says and refers to the fact that in terms of unloading taking it to the storage area or holding area and that is point of rest, and I will get there in just a minute to some of the specific language they used in the reports in which they clearly indicated that they wanted all the operations up to that storage or holding area covered because that was the unloading operation, but they did not want covered people working beyond that in the terminal area.

Unknown Speaker: So there is a difference between you and Mr. Kimball?

Mr. E. Barrett Prettyman, Jr.: No.

Unknown Speaker: Mr. Kimball said that the congressional history did not do him any good at all.

Mr. E. Barrett Prettyman, Jr.: Well, let me put it into you this way.

Mr. Kimball and I are in slight disagreement on one point only as I understand it and that that is I think that the congressional history is crystal clear as I read it.

Mr. Kimball does not think it is as clear as I do.

But I do not think that Mr. Kimball disagrees with me about point of rest.

I think he reads the congressional history in the end, clear or unclear as adapting the point of rest thesis.

Now first of all, I think it is very important that the point that I was just trying to make that Congress really intended loading and unloading to be maritime employment and that is what they were talking about.

I think it is very important that that be established.

Let us just take one sentence from the committee reports and the Senate and the House adapted that is really virtually the same committee reports.

In those committee reports, the significant portions are at the end of Mr. Kimball’s brief, this blue backed brief here, starting in the appendix and he first has the words of the statute and then on page little 2, you will see the present Act down at the bottom and this, we have a very significant statement here, really the only statement, because there was virtually no floor debate on that.

We have the only statement as to what Congress really intended by maritime employment.

It quite true Mr. Justice Rehnquist that we do not have a definition within the statute itself of maritime employment, but I do not think anyone can read these few pages without it becoming crystal clear what they intended by maritime employment, namely the loading and unloading process.

For example they say, now just listen to this sentence, “The committee does not intend…”

Unknown Speaker: (Inaudible) Mr. Prettyman.

Mr. E. Barrett Prettyman, Jr.: I am sorry Your Honor.

Unknown Speaker: What page of the blue brief?

Mr. E. Barrett Prettyman, Jr.: This would be on little page 4 at the very bottom.

Unknown Speaker: Thank you.

Mr. E. Barrett Prettyman, Jr.: The sentence at the very end.

Unknown Speaker: Right at the top of it.

Mr. E. Barrett Prettyman, Jr.: “The committee does not intend to cover employees who are not engaged in loading, unloading, repairing or building a vessel just because they are injured in an area adjoining navigable waters used for such activity.”

Now, if I may interpret that, what they are saying is, you can even meet the situs test, but you are not covered if you are not engaged in that loading or unloading process, I am emphasizing loading or unloading because obviously the building of the vessel is not part of cases before the court.

Unknown Speaker: Well, those employees may be employees of an employer, who does not meet this test try test too.

It might well be a taxi driver from the streets of Brooklyn who is over there on the pier to pick up a fare.

Mr. E. Barrett Prettyman, Jr.: Well, it could be your Honor, except I really do not think that that is…

Unknown Speaker: I mean, it may be that to which the committee was addressing itself.

Mr. E. Barrett Prettyman, Jr.: I do not think so Your Honor because the sentences before this…

Unknown Speaker: Because it is not defined by the word employees?

Mr. E. Barrett Prettyman, Jr.: Yes that is exactly right.

It says the employees, so in order to qualify an employee you have to be the employee of a covered employer.

Unknown Speaker: Exactly!

Mr. E. Barrett Prettyman, Jr.: Yes.

Well, it is saying the employee that is people who are normally covered by the Act.

Unknown Speaker: I.e. as an employer as a covered employer, I think that is implicit.

Mr. E. Barrett Prettyman, Jr.: Yes, right, who perform this work would be covered.

I am sorry it is at the top of page 5 of course.

Unknown Speaker: Yes.

Mr. E. Barrett Prettyman, Jr.: The committee does not intend to cover the employees.

Unknown Speaker: The definition is almost tautological in a way, is it not and the term employer is defined in terms of what employees you employ?

Mr. E. Barrett Prettyman, Jr.: You have a very strange setup here Your Honor, in which you do say that an employer is an employee if he has employees who are employees and at the same time you are saying that so long as one man is an employee then you have an employer under the Act.

You do have a rather strange dichotomy there, but I think if this entire discussion really does not go to employer, everyone has simply assumed that if you have one or more employees you are covered, you automatically have your employer, but I think what this sentence is talking about, that it cannot, they are not really talking about a cab driver with all due respect because they are talking about somebody who is injured in this particular area and I think it is clear throughout this whole paragraph here that when they are talking about employees, they are talking about people who are employed on the pier to do some type of terminal work.

Unknown Speaker: Mr. Prettyman to what --

Unknown Speaker: (Voice overlap) as covered employees?

Mr. E. Barrett Prettyman, Jr.: Yes.

Unknown Speaker: To what extent did the 1972 Act extend covered?

Mr. E. Barrett Prettyman, Jr.: It extended to this extent Your Honor and it substantially extended it.

You remember during the 1972 discussions before Congress Representative of ILA got up and said “Look we got longshoreman who cut in half.

Here is a man who is injured on the ship and he is a longshoreman doing typical longshoreman’s work.

If the same man happens to be on the pier, he is going down the pier to do maybe even similar work.

He is not covered.

We have got a cut in half situation.”

Unknown Speaker: Like the checker in this case.

Mr. E. Barrett Prettyman, Jr.: Well, except that, if I may for a moment?

It was really addressed to the Nacirema situation, and the Nacirema case, you know, set up this strange situation.

Unknown Speaker: There are dozens of Nacirema cases.

Mr. E. Barrett Prettyman, Jr.: Pardon me?

Unknown Speaker: Which Nacirema case, there are literally dozens of them?

Mr. E. Barrett Prettyman, Jr.: Well, I am sorry Your Honor, it is the one cited on our brief.

It is the 69th case and it is the one that holds that you cannot be covered by under the 27 Act, you cannot get compensation if you have an injury on the pier even if it caused by an appurtenance of the ship.

Unknown Speaker: Yes.

Mr. E. Barrett Prettyman, Jr.: Even though you could be injured, but you would be covered if you were injured onboard the ship, that is the Nacirema case.

That was the case that was cited again and again to the Congress and that is precisely the evil that Congress was attempting to get at here.

It was trying to say that you do have these employees who are engaged in the loading or unloading process, right up to the point of rest where the storage or holding area and if they happen to be on the pier, they are not covered.

If they happen on the ship, they are.

There was even a Fourth Circuit case in which the man was injured on the pier but happen to fall in the water.

Unknown Speaker: Right.

Mr. E. Barrett Prettyman, Jr.: And they said because he was lucky enough to fall in to the water, he was covered, but if he happened to fall on the pier he was not covered and that was what Congress was concerned about and that was what they were addressing these amendments to.

Now, if I may complete my answer, Mr. Justice Marshall, the reason that there has been a substantial extension of coverage is that a great many of the gangs that work these ships increasingly work on shore and this in particularly true of containers and Congress specifically noted that.

In these last few pages here, they refer specifically to the fact that containerization has resulted in more and more men working on the pier.

Unknown Speaker: But is not the checker in this case, in the language of the people talking about the Act, a demand that it was in and out of federal jurisdiction?

Mr. E. Barrett Prettyman, Jr.: No, at the time…

Unknown Speaker: The checker in this case?

Mr. E. Barrett Prettyman, Jr.: The checker in this case had nothing to do at the time that he was injured with the unloading process.

Unknown Speaker: But just before that he did that?

Mr. E. Barrett Prettyman, Jr.: No, not just before that.

We have no evidence to that in record at all.

Unknown Speaker: Well, then I misunderstood you.

I thought you said the checker, one of his hats to use your word, was to check these things as they came off.

Mr. E. Barrett Prettyman, Jr.: I am sorry.

Unknown Speaker: And the other hat he wore was what he was doing here.

Mr. E. Barrett Prettyman, Jr.: Mr. Justice…

Unknown Speaker: Just in and out of federal jurisdiction.

Mr. E. Barrett Prettyman, Jr.: I see where the difficulty lies and I apologize for confusing you.

When I began talking about a checker wearing two hats, I was talking about checkers in general.

Checkers in general wear two hats in the sense that they can be doing one of two types of jobs, one at the ship’s edge and the other at some distant terminal.

Now, this particular man was working at the time of injury at the distant terminal.

We do have evidence that is part of a proffer that is not actually proof, but part of a proffer, that he did spend on other occasions up to 20% of his time on lighters or onboard a ship, but we have no indication that how long ago this was or what the precise nature of that work was or anything else.

This man so far as this record is concerned was wearing the second hat that I was talking about and was far removed from the unloading process and I would like to point out to you in that regard that Congress specifically said in the report that I was just referring to you that checkers were covered only if they were directly involved in the loading or unloading process.

Now, that statement simply makes no sense.

If you adapt the view for example of the Benefit Review Board, that it does not make any difference where a checker is or what he is doing or whether you have a clerical worker or not.

Let me just give you an example of the extent to which the Benefit Review Board is going.

Despite these statements in here, at least eight statements, eight statements in the legislative history that I have just referred you to which severely qualify the extension of compensation and made clear that Congress was not attempting to cover the entire terminal of the entire universe.

Despite that, the Benefit Review Board has said that a temporary delivery clerk who slipped on ice between the parking lot and the time clock checking it out was covered.

They have said that a man who trips over a beam while returning to a work shack with his men’s time cards is covered.

They have said that a fellow who injures his back while replacing paper in an IBM machine is covered.

Now, if you take those examples and I want to emphasize that the government apparently backs the Benefit Review Board.

They say a number of times in their brief that they are truly backing them, if you take those statements and you compare them with statements in the legislative history that says that for example, there is a transfer to the storage or holding area and if it is not unloading or loading it is not covered even if the injury occurs in that area or that if an employee engaged only in transshipment which can only mean in context to taking from the holding area or the first point of rest to another point of the terminal, if he is engage in transshipment he is not covered they say that.

Unknown Speaker: Well, if it happens that a ship is unloaded directly into a consignee’s conveyance, you would say that all the people engaged in putting it in the conveyance are covered, I take it?

Mr. E. Barrett Prettyman, Jr.: Normally the only time you have…

Mr. E. Barrett Prettyman, Jr.: No, I did not say about normally.

I said if ever.

If ever a ship is unloaded into a consignee’s conveyance.

Mr. E. Barrett Prettyman, Jr.: That would be a bulk operation.

You would not have a longshoreman.

Unknown Speaker: Then you would not have a point of rest, would you?

That would be a break bulk operation.

Mr. E. Barrett Prettyman, Jr.: I know, but somebody does it.

They would be covered.

Unknown Speaker: Yes, that is all I wanted to know.

Mr. E. Barrett Prettyman, Jr.: Now, in the situation where analogous to that where you have it unloaded directly to the point of rest and immediately picked up by the consummate, all the people up to the point of rest would in fact be covered.

Unknown Speaker: Let us assume there is a point of rest and the cargo is unloaded there.

Do the same crews; is it possible that on some piers or on some terminals the same crews move it from the first point of rest into consignee’s conveyance?

Mr. E. Barrett Prettyman, Jr.: This virtually never happens Your Honor.

You have a gang which is the unloading gang.

They are assisted by certain other people who are engaged in what we call the longshoring operation.

Those people work really as a unit.

Now, the only time that I can imagine that what you are talking about occurs is when let us say for example everybody is through work at 5 o’clock and they are about to go home and all of a sudden the Stevedoring Company says wait a minute, we have got a crash job over here in the terminal area, would you be willing to take it?

Unknown Speaker: Is your client responsible for loading cargo into consignee’s conveyances?

Mr. E. Barrett Prettyman, Jr.: As a terminal operator he is responsible for getting them to the consignee’s truck.

Unknown Speaker: So assume that I work for your client.

On one day could I be assigned to unloading the ship, the next day assigned to moving cargo to the consignee’s?

Mr. E. Barrett Prettyman, Jr.: It is possible.

The more likely thing that what normally happens is that if you work as a part of a gang, which is normally about 18 people plus drivers, if you work as part a gang, you even have on the computer run-out you have a number for gang.

You check the day before to see whether your number is up and if your gang’s number is up and if you are not sick or something then you know that you are to turn up at a certain ship the next day and you work that gang and you work the gang the all day and then you check the next day and you normally are going to work.

Unknown Speaker: But you might be part of another gang the next day?

Mr. E. Barrett Prettyman, Jr.: Well, you can be, but normally what has happened is that these gangs have tended to become units and they tend to work together and the men change only when there is a death, retirement, illness or something of that sort.

Unknown Speaker: But there is not a different Union, is there?

Mr. E. Barrett Prettyman, Jr.: Normally, the ILA covers everybody on the terminal, but you have different locals.

For example, the checkers, Mr. Blundo was in an entirely separate local and normally in most piers, the locals are different.

If you are a terminal operator then if you are part of the gang and I want to emphasize that in terms that even where you have one company like ITO that does both the stevedoring work and the maritime work on their records, in their computer run-outs, in their pay scale and all the rest of it you are treated completely separately if you are part of the unloading process as opposed to if you are a part of the terminal operation, completely different operation on the books of that company even though it is the same company hiring both sets of people.

Now, in terms of the respondents indicate to us that there are certain inequities that are going to grow out of our system if you adapt point of rest.

I will just take a couple of minute because I want to save some time for rebuttal to point out inequities arise if you adapt their system rather than ours.

For example, you would have Mr. Caputo covered and the truck driver is doing exactly the same work and he is not covered.

You would have Mr. Blundo covered, but the off terminal checker who could be checking precisely the same container on another day and this is done off terminal would not be covered.

Unknown Speaker: Out of situs?

Mr. E. Barrett Prettyman, Jr.: That is correct.

Unknown Speaker: Mr. Blundo would be on the account of the employer, test with?

Mr. E. Barrett Prettyman, Jr.: Pardon me?

Unknown Speaker: Your first example had to do with truck drivers and that would be because presumably his employer would not be a covered employer?

Mr. E. Barrett Prettyman, Jr.: Well, they would also concede I think and I think they would concede, I am not sure if you are interested in hearing, but I think they would say that the truck driver does not meet the status test period, but in addition to that you have Mr. Blundo and Caputo both covered, but you have state workers, and this is something they never mentioned, stayed very carefully away from, but in your terminal operations, in a great numbers in these docks, you have state workers doing your terminal operations and under the statute, they are excluded which is going to give them, if you adapt their view point, a tremendous cost advantage of course, because they do not have to pay these higher federal methods and they had said nothing about the fact that you are going to have state employees who are excluded doing exactly the same work as the terminal operators who are covered and entirely different system for both.

Unknown Speaker: Were state employees excluded in the old Act?

Mr. E. Barrett Prettyman, Jr.: Under the old act Your Honor I am not sure.

I just do not know and finally you have strippers and stuffers who work both sides of the terminal.

You have consolidators who are quite a distance away from the terminal, stripping and the stuffing containers and yet only those who happen to be inside the terminal are going to be covered if you adapt their viewpoint.

Well, I can go on and on with these examples, but the real inequities and the kind of crazy situations develop not under our theory, but they develop under the theory if you try to extend coverage as far as the government would have you do it.

I would like to save if possible the rest of my time for rebuttal.

Chief Justice Warren E. Burger: Very well Mr. Prettyman.

Mr. Gucciardo.

Argument of Angelo C. Gucciardo

Mr. Angelo C. Gucciardo: Mr. Chief Justice and May it please the court.

I represent the two injured employees in both these cases, Carmelo Blundo and Mr. Caputo.

First before starting my argument though I wish to correct certain misconceptions that have already been put forth to you.

Namely, it is this that the way of life on the waterfront is that it is a shake job.

Even though you may have a regular employer or be a member of a regular gang, you have to report in the New York and New Jersey area to a Hiring Hall that is maintained by the Waterfront Commission and then you are sent out to work wherever work is available.

Unknown Speaker: Mr. Gucciardo, Mr. Prettyman has given us some conception of his ideas of how the waterfront works.

You are now giving us some of yours.

I do not know that either of you would qualify as an expert witness if this was in a trial court.

If there are disputes between the two of you, whose word are we to take as to the practices?

Mr. Angelo C. Gucciardo: Your Honor, may I state this?

I come from a family of longshoreman.

I have been in this business since 1953, handling longshore work almost regularly from 1953 up until the present time.

I am familiar with the waterfront.

So a longshoreman gets hired and he goes to his hiring boss.

If he is hired as terminal labor, his duties are a number of categories that is he can load and unload a Lighter, which is a float.

He can load and unload ship stores on a ship.

Load and unload containers and load and unload trucks.

He does not know in advance when he gets to that pier, exactly where he is going to be assigned.

That is Mr. Caputo for you.

When he gets there in the morning, even though he maybe a regular employee, he may go onboard a Lighter to unload a Lighter, this is the walking in and out of federal jurisdiction that Congress intended to correct.

Not only that, if he is assigned in the morning to unload a Lighter and that work is finished and the Lighter is finished, his extra labor boss may then say unload the trucks that are delivering cargo that have to be put onboard a vessel.

The same way with the checker, the checker does not know in advance each day where he will be assigned.

He reports to his boss, who is incidentally the same extra labor boss and he tells him where to go and what to do.

ITO is involved in this case…

Unknown Speaker: Mr. Gucciardo, could I ask just one question before you get too deep into your argument?

Under your theory of the statute, supposing Mr. Caputo took his wife to the movies and after the show they decided to walk across the pier where he normally works and he fell and was injured, will he be covered?

Mr. Angelo C. Gucciardo: No sir, under that theory he is not in the course of employment.

He is not working.

If he chose to go there on his off time and wanted to --

Unknown Speaker: But then do you contend that his status at the time of the injury is controlling?

Mr. Angelo C. Gucciardo: That is correct.

Unknown Speaker: The fact that he is generally a longshoreman is irrelevant?

Mr. Angelo C. Gucciardo: No, that is material Your Honor.

He is generally a longshoreman, but you also have to be in the course of employment to have a compensable injury.

You cannot, for example quit at 5 o’clock and decide to come back because a friend of yours is working and you want to meet with him so you can go home together, you may have the same car.

Well, after you quit and you are waiting for your friend who may work an hour overtime, which happens and get hurt, he is not covered.

Unknown Speaker: Is the reason he is not covered because of something in Section 2(4) or something in Section 3(a)?

What is the reason under the statute if he is not covered?

Mr. Angelo C. Gucciardo: Because he is not in the course of employment.

Unknown Speaker: Where does the statute require that?

Mr. Angelo C. Gucciardo: This is general compensation law.

In order for an accident to be compensable you must be in the course of employment, people working for their employer and furtherance of their employer’s activity.

Unknown Speaker: I understand that is general compensation, but does this statute contain a similar requirement and if so, in what section?

Do you know or if you do not?

Mr. Angelo C. Gucciardo: No, I am not aware of any particular statute dealing with that particular point.

Unknown Speaker: So we have to go outside the written language of the statute to find the limitation you have just described?

Mr. Angelo C. Gucciardo: Yes, because when Congress says they are covered these compensation cases then you refer to compensation law and that is what the mistake is made in dealing with these cases.

They are citing a lot of cases involving unseen worthiness.

Well, longshoremen who are looking to establish the liability on the plot of the ship have to establish that they are in the service of the ship on the theory of unseen worthiness.

That has nothing to do with compensation law.

Unknown Speaker: Well, you are not even an employee if you are off work, are you?

Mr. Angelo C. Gucciardo: That is correct.

You are not an employee if they are-

Unknown Speaker: And you are engaged in maritime employment if you are not working?

Mr. Angelo C. Gucciardo: That is correct.

You might just as well be a walker in the street.

Unknown Speaker: Well, that is just plain.

Is it not that in Section 2(3), the term employee?

You are not even an employee if you are not on duty, are you?

Mr. Angelo C. Gucciardo: That is correct.

You are not an employee and I would say that under that term of Section 2(3) encompasses that meaning.

It means a person engaged in maritime employment.

Unknown Speaker: And by that you then mean at the time of the injury.

There is a dispute in the briefs that apparently has evaporated because I thought one that Judge Friendly relied on part as a status over a period of time as an employee.

You seemed to have abandoned that?

Mr. Angelo C. Gucciardo: Judge Friendly took a more narrow view than I take Your Honor.

I maintain that once you are an employee within the terminology used on the Act, which is clear, then the whole body of compensation law is applicable.

So that if this person has to go to the bathroom and sustains an accident in the bathroom on the employers premises of course or if he is checking out and has to punch out, which is the Jackson case in the Fifth Circuit, that employee should be covered.

I take issue with the Jackson case as decided by the Fifth Circuit, because the man was working all day long within the covered employment.

Then all of a sudden he has to check out.

For that purpose, he is covered under State Law?

I do not see it.

The only reason that the Justices in that particular case decided that way because the employers and the carriers would have us put blinders on and say he has got to be doing something in maritime employment at that time.

That is not so.

Unknown Speaker: Well, on your theory, if the man starts out doing maritime employment on the dock in the morning and is asked to drive a truck 10 miles away at noon to take some stuff, comes back at 2 o’clock and has an accident while he is driving the truck he is covered.

Mr. Angelo C. Gucciardo: That is not what happens on the waterfront.

Unknown Speaker: If that did happen on the waterfront, would he or would he not be covered under your theory?

Mr. Angelo C. Gucciardo: The purposes for which he is then driving that truck would have to be examined.

Unknown Speaker: But he could be?

Mr. Angelo C. Gucciardo: Yes, it could be and I will tell you where that has come about.

There was a Scafidi case, which was involved in the Della Ventura case was dismissed for technicalities.

In that particular case, an employer had been moving, the Piston Stevedoring Company had been moving its pier from one location to another, which was within 10 blocks.

So rather than hire a private trucking for all of the existing cargo that was remaining on pier 10 to go to the state pier or pier 12, I do not remember the number of the pier, they used their own drivers to go across city streets and within the terminal.

In the Scafidi case, of course he was injured after he got inside of the terminal and was opening the container for the purposes of re-stuffing them into another container, so that the Administrative Law Judge held that to be compensable and the Benefits Review Board also held it to be compensable, but taking your example, if he had been hurt between pier 10 and pier 12, I would say under those particular set of circumstances that he would also be covered under the Act.

Unknown Speaker: It would not come under 3(a), would it not, the situs test?

Rebuttal of E. Barrett Prettyman, Jr.

Mr. E. Barrett Prettyman, Jr.: Yes, because Mr. Scafidi was injured in an area that is commonly waterfront in Brooklyn, that entire area.

Unknown Speaker: On the streets of Brooklyn, you say that is navigable waters of the United States?

Rebuttal of Angelo C. Gucciardo

Mr. Angelo C. Gucciardo: Gowanus Bay, Your Honor.

Brooklyn borders on Gowanus Bay and those are…

Unknown Speaker: We do not have that case here.

Mr. Angelo C. Gucciardo: Yes.

Unknown Speaker: We do not have quite a appeal on argument at the moment.

Mr. Angelo C. Gucciardo: Yes we do have it your Honor because Blundo occurred in Brooklyn and so did Caputo.

Unknown Speaker: Up here?

Mr. Angelo C. Gucciardo: Yes.

Unknown Speaker: What if during the course of true longshoreman operations, the longshoreman wants to go uptown or half a mile off the pier to get some cigarettes.

The gang boss says it is all right for him to do it and he is injured as he is going in or out of the tobacco shop.

He is covered or not covered?

Mr. Angelo C. Gucciardo: There is a provision of the law which says under the Compensation Law, if you abandon your employment and/or injured while abandoning employment then you are not covered.

Unknown Speaker: Well, did he abandon it when the gang boss let him go?

Mr. Angelo C. Gucciardo: Under those sets of circumstances, yes Your Honor.

The boss says you can have some time off.

Unknown Speaker: Has not the Review Board taken rather different view of that in some comparable cases?

Mr. Angelo C. Gucciardo: Not to my knowledge.

I could give you a similar example perhaps, if you are being disturbed by that particular point where I did have a case involving a longshoreman who was told by the boss, now you go pick up the pay of all the men who worked on pier so and so during the week, because it is a shake job, they have to go to the various piers to pick up their salary.

So if the boss gives him time off with pay, that is very crucial, that with pay and he goes to pick up that pay of all his employees for that particular gang and brings it back, that is also compensable under the law because they are traveling the waterfront and this is accepted procedure between terminal operators and the International Longshoreman’s Association, that one man goes to pick up the pay for all of the men.

Unknown Speaker: As far as the law the longshoreman is a seaman, did he not suddenly extend the waterfront to Time Square in the seamen’s case?

Mr. Angelo C. Gucciardo: Of course Seamen are excluded on this Act, but I know what you have reference to that it is possible to extend.

Unknown Speaker: None of that washes off on the longshoreman.

Mr. Angelo C. Gucciardo: Not at all Your Honor, that has to do with Seamen and it has to do with the Jones Act and is entirely different.

I wanted to make a point that Section 9(20) which deals with presumptions should be continued to be enforced.

The average longshoreman cannot afford the proceedings to prosecute these cases.

All of the costs of these proceedings are born by me personally and my firm of course.

So that the purpose of the law was that the burden of proof should be on the employers and their carriers because they were best able to sustain the cost of prosecuting these claims.

All a person has to do, who is injured on the waterfront, is to say, I am a longshoreman.

I was working on the job and I got hurt and my employer engages longshoreman to work on the ship and on the piers.

Now, the burden is on the employer and carrier to come forth and disprove that claim.

You will notice in both these cases, the Caputo case they presented no evidence of what so ever.

In the Blundo case they attempted to present some evidence in the form of a safety man, whose knowledge of the facts seem to be faulty, but in any event, there is no proof to the contrary or of any record that this does not fall within the presumption of the Act, also the other phase of the law which says that if there are serious questions of fact and law then it is to be resolved in favor of the claimant.

Well is this not what is occurring here now?

There is a serious question of fact and law and if that is truly bothering you gentlemen it has to be resolved in favor of the claimant because that is what the law has been for many, many years.

Another misconception, I am sorry to jump back and forth, but my adversary, Mr. Prettyman says that it almost never happens that ships are unloaded directly.

It happens quite often.

It happens in two instances that I know of, banana ships and frozen cargo.

They are perishable items.

So that if that has to be unloaded the same longshoreman, Mr. Caputo, Mr. Blundo, are used in a direct line from the ship directly into the consignee’s truck.

They have to use the longshoreman to load their trucks because they require special heavy equipment such as high-lows, dollies and manual labor to put it into the truck.

A truck man cannot possibly carry all these equipment with him.

It is recognized on the waterfront that this is the way it has to be done.

The only reason that the truck man participates is otherwise the employer is paying him to do nothing and watch the truck being loaded.

So he tells him you have to help.

The word transshipment used by the committee reports in the House and in the Senate meant exactly that.

An employer does not transship within his own terminal.

Somebody else does it, takes it outside of.

You do not move furniture in your own house from upstairs to downstairs.

That is not moving away from your house and moving the cargo away from the terminal, somebody else does it and it is that person who picks it up that was intended to be excluded.

I am sorry I went over Your Honor.

Chief Justice Warren E. Burger: Thank your Mr. Gucciardo.

Mr. Easterbrook?

Argument of Frank H. Easterbrook

Mr. Frank H. Easterbrook: Mr. Chief Justice and May it please the court.

It is the position of the Department of Labor that the amended Longshoremen’s And Harbor Workers’ Compensation Act applies to all injuries suffered by waterfront workers during the process of transferring cargo between land and water transportation.

It is a simple rule, easily applied and we believe that it correctly divines the meaning of the statute.

Unknown Speaker: Mr. Easterbrook, just I so am sure of your position, if I read your brief correctly, is the government’s position that the example I gave, a man returning from the movie and walking across the pier, there would be coverage, am I right?

Mr. Frank H. Easterbrook: It is the government’s position that there would not be coverage and the reason for that does not have to do with his status as an employee.

It has to with the test established in Section 2(2) of the statue which is not reprinted in any of the briefs.

Unknown Speaker: Where is the 2(2)…

Mr. Frank H. Easterbrook: Section 2(2)…

Unknown Speaker: I am trying to find it in the…

Mr. Frank H. Easterbrook: Section 902(2).

Unknown Speaker: 902(2)?

Mr. Frank H. Easterbrook: Right.

Unknown Speaker: Thank you.

Mr. Frank H. Easterbrook: That section requires that the injury have a reason out of the course of employment.

That would not be matching the case of the injury in your hypothetical, Mr. Justice Stevens.

Justice John Paul Stevens: What about my friend who is going up to get cigarettes, in your view, the government’s view?

Mr. Frank H. Easterbrook: Assuming that he is moving away from the waterfront, Your Honor, in that event, coverage is excluded by the situs rule of the statute section 3(a) or Section 903(a).

He too, is not covered.

Unknown Speaker: How about transshipment?

It comes off the ship of dock A, it is moved to dock B, to dock C, to dock D and the man is looted on to dock X, is he covered?

Mr. Frank H. Easterbrook: Yes, Your Honor.

In our view, he is covered and indeed that is very similar to the Blundo case we have here.

Unknown Speaker: Well would that be, if that would be six months later?

Mr. Frank H. Easterbrook: In our view, time has nothing to do with it and I would like to develop for a moment, if I might, what we believe is the correct test of coverage.

The statute establishes on its face a test that as Judge Friendly pointed out, can be satisfied in three ways.

A worker is covered if he is a longshoreman or if he is engaged in longshoring operations or if he otherwise meets the test of maritime employment.

It is clear that unless Congress was wasting words, some persons are covered, even though they are not injured at a moment when they are engaging in longshoring operations.

Justice William H. Rehnquist: Well, that is not a necessary reading of 2(3), is it?

If you take the phrase, including any longshoreman or other person engaged in longshoring operations.

It is certainly possible as a matter of usage, to re-engaged in longshoring operations as modifying the word longshoreman as well as other person, does it not?

Mr. Frank H. Easterbrook: It is conceivable that that is correct, Mr. Justice Rehnquist, but although we do not believe that that is the best reading of the statute.

But it seems tolerably clear that the focus of the statute was upon the occupation of the worker.

The description of longshoreman and the other description in section 2(3) of the statute is a description of the occupations in which persons engage on the waterfront.

Longshoreman, harbor worker, ship repair man, it is a focus on occupations rather than a focus on particular tasks at the moment of the injury and that focus on occupation, rather than on tasks at the moment of injury is sufficient to doom petitioner’s theories and arguments.

The occupation of longshoreman traditionally has been understood to include a wide variety of waterfront tasks.

In Victory Carriers against Law, for example, this court used longshoreman in that generic sense to include the persons who carry out most tasks on the waterfront.

And there is no reason to suppose that Congress, which enacted this statute only a few months later and in some measure in response to this court’s decision in Victory Carriers and Nacirema Operating Company was using longshoreman in some more narrow sense.

All of this too, must be considered against the fact that a maritime carrier employs Stevedore contractors and marine terminal operators like petitioners to carry out its duty to make cargo available to consignees.

The task is Maritime.

It is the marine carrier who engages petitioners to carry out tasks on its behalf and it pays for their services.

The ultimate responsibility is that of the marine carrier.

Petitioners act on their behalf.

We have discussed this duty at pages 27 to 28 of our brief and this has caused some difference of view I think, between the two petitioners.

Petitioner North East concedes at pages 18 and 19 of its brief that this duty exists and that the coverage of the act, therefore, continues until the marine terminal or the Stevedore contractor has carried out that duty of making cargo available.

Since Blundo was injured before cargo was made available, under the test advocated by petitioner North East, Blundo would be covered by the Act.

Petitioner’s contrary argument takes us a long way from the statute.

Petitioners practically ignore the statute’s plain words.

The counsels for petitioners were not talking about longshoreman and longshoring operations during their oral argument.

They were talking instead about loading and unloading, words that do not appear in the statute.

The words loading and unloading have come from the legislative history of the statute and petitioners suggest that this, rather than longshoreman and longshoring operations, is the proper test of coverage.

Unknown Speaker: Do you suggest Mr. Easterbrook that this statute is so clear that we need not to resort to legislative history?

Mr. Frank H. Easterbrook: No Your Honor, it is not and we think resort to the legislative history is perfectly appropriate.

Unknown Speaker: That is unclear as any statute could conceivably be, is it not or perhaps you could conceive at one…

Mr. Frank H. Easterbrook: It leads to something to be desired.

I think that the most important part that we draw from the face of the statute is its focus on occupations rather than tasks and I think that is very important for the argument because petitioners have tried in order to manufacture a moment of injury test to shift the focus to tasks rather than occupations.

In any event, petitioners –

Unknown Speaker: I think it is just as easy if it said, we are abandoning the point of rest?

You know, in just plain English?

Mr. Frank H. Easterbrook: I am sorry Your Honor.

I did not grasp the question?

Unknown Speaker: Congress could have said we are abandoning the theory of coming to rest.

(Voice overlap) Did they abandon it of not?

Mr. Frank H. Easterbrook: Your Honor Congress never adapted it, and therefore, it was not there as to abandon.

It had never been a test under the pre amendment Act.

The test before…

Unknown Speaker: It was not considered?

Mr. Frank H. Easterbrook: In our view, it was not even considered by Congress.

Unknown Speaker: It was not even mentioned?

Mr. Frank H. Easterbrook: It is not even mentioned in the legislative history.

Unknown Speaker: Just mentions the fact that you walk in and out of Federal Jurisdiction?

Mr. Frank H. Easterbrook: That is very strongly mentioned.

Unknown Speaker: It is the same thing.

Mr. Frank H. Easterbrook: Your Honor, I believe that it is terribly important that Congress focused on walking in and out of the coverage of the statute.

The question presented in this case is in large measure where they walk in and out of that coverage.

It used to be, before the 1972 Amendments that they walked in and out of that coverage at the water’s edge, right smack at the edge of the water and that is what this court held in Nacirema Operating Co. and Victory Carriers against Law that is where the dividing line was.

What petitioners propose to do is to move that dividing line inland to the point of rest and then any longshoreman who walks back and forth from one side to the point of rest, walks in and out of federal coverage just like before.

Only he walks in and out of federal coverage at a different place.

Unknown Speaker: What is the difference Mr. Easterbrook that under the old view you walk in and out of coverage during the same day regularly whereas here he is pretty much in or out for a whole day at the time.

Mr. Frank H. Easterbrook: Your Honor, we believed that that argument is inconsistent with the record.

Petitioner Mr. Caputo testified that during times when he was assigned to the terminal labor category as he was assigned to the terminal labor category on the day he was injured, he spent approximately 20% of his time on the water.

He further testified in the record of this case.

Unknown Speaker: But were they not 20% of the day?

It is not 20% of each day?

Mr. Frank H. Easterbrook: It was not broken down in the record.

He testified further that if he had succeeded in loading the truck which he was doing when he was injured, his very next assignment could have been on the water and that within days, he worked on the water sometimes and other assignments at other times.

Mr. Blundo testified similarly.

That testimony came in as part of an offer of proof.

The reason it was an offer of proof rather than ordinary evidence in this case was that counsel for petitioner ITO objected on the ground that testimony was irrelevant.

Unknown Speaker: Well, is it your view of the record that it supports the notion that it is quite frequently true that employees work on both sides of the point of rest during the same day?

Mr. Frank H. Easterbrook: Both longshoremen in this case testified that they themselves worked on both sides of the point of rest.

Unknown Speaker: Well, that really was not my question.

Do you think the record fairly supports the view that employees typically work on both sides of the point of rest on the same day?

Mr. Frank H. Easterbrook: There is no testimony in the record concerning that from anyone other than the two respondents and they testified that that was true.

Unknown Speaker: Do you think we can take judicial notice of the material in the brief that has this kind of a Brandeis brief on where the point of rest is.

That seems to support the contrary view as I read.

Mr. Frank H. Easterbrook: Your Honor, it is a very funny brief.

I see no reason why you cannot take it for whatever it is worth with the understanding that it was written by an adversary.

Unknown Speaker: Judge Friendly, of course pointed out his difficulty was that we did not have those facts before us.

So he in effect suggested he might have viewed the case differently if they had them before him.

My question is do you think they are before us now?

Mr. Frank H. Easterbrook: I think you can consider them in a way that you ordinarily consider data that as it comes in the Brandeis brief with the understanding that it is inserted there by an advocate.

But I think --

Unknown Speaker: But assuming we accept the entirely the truth of all that, what relevance does it have?

Mr. Frank H. Easterbrook: In our view very little.

Our point is that it makes not very much difference whether a lot of people walk back and forth from one side to the point rest to another.

Our point is that, it should not be that that kind of dividing line of coverage exists at all, no matter how many people are walking back and forth?

Unknown Speaker: And then Judge Friendly in his opinion for the Court of Appeals in the Second Circuit laid a video store (ph) by the fact that one or more of these employees, at least at other times and on other days had worked in employment that would be clearly covered.

Do you think -- how important is that in your view?

Mr. Frank H. Easterbrook: At the minimum, it is just positive in these cases because it indicates that these respondents meet the test of longshoreman.

Unknown Speaker: But your point is?

But they met the test when they were engaged in the occupation which they were engaged at the time they were injured, is it not right?

Mr. Frank H. Easterbrook: It is two fold.

I agree entirely with what you said and in addition they need to test because they meet the description of Judge Friendly.

Unknown Speaker: Why do you need that addition?

Mr. Frank H. Easterbrook: We do not need it.

Unknown Speaker: Is that a proper test?

Mr. Frank H. Easterbrook: It is a proper test.

Unknown Speaker: I thought your point was that under the statute these people are covered when they were engaged in what they were engaged in at the time they were injured.

Mr. Frank H. Easterbrook: Precisely and perhaps, I am not being sufficiently clear.

It is a proper test for inclusion and not for exclusion.

If they meet the description of Judge Friendly of having been on ships before, then they are surely included, but you do not need to.

Unknown Speaker: You do not mean that they quit their job and are now a taxi driver, do you?

Mr. Frank H. Easterbrook: No, then they will no longer be engaged to maritime operations.

Unknown Speaker: The test is what they were doing and where they were at the time they are injured, is it not your submission?

Mr. Frank H. Easterbrook: No, it is not Your Honor.

We believe that what they are doing at the moment of injury is not necessarily as positive if they meet the status of being a longshoreman.

So the fact that they were at the moment of injury taking time off that they were on a rest break that they were on a rest break that they were otherwise not doing maritime task.

Unknown Speaker: I do not think your brothers on the other side differ with you on that?

Mr. Frank H. Easterbrook: Well, I understand that, but there are some cases that differ with us, the Jacksonville Shipyards Case.

Unknown Speaker: Those cases are not here.

Mr. Frank H. Easterbrook: That is right, but there has been that view.

Unknown Speaker: Suppose Blundo instead of loading the cheese was repairing the truck.

Mr. Frank H. Easterbrook: This was the truck that came from off the waterfront.

Unknown Speaker: The truck in this case?

Mr. Frank H. Easterbrook: I think we would have to know in that event more about Blundo’s ordinary duties, more about the nature of the truck and more about how the truck got there.

Unknown Speaker: How in the world can repairing the truck be longshoreman duties?

Mr. Frank H. Easterbrook: I think it could Your Honor be maritime employment, if the truck was a truck that shuttled goods from one part of the waterfront to another and they are preparing the truck where he is facilitating that.

Unknown Speaker: Was this truck doing that?

Mr. Frank H. Easterbrook: This truck was not as far as we know.

Unknown Speaker: That is right.

Mr. Frank H. Easterbrook: If this was a truck that simply was making a stop at the waterfront coming from elsewhere and going back to elsewhere.

Unknown Speaker: And they were repairing that truck is no way you can recap.

Mr. Frank H. Easterbrook: Assuming that he came with the truck.

If he was an ordinary longshoreman and he is (Voice Overlap).

Unknown Speaker: Mr. Carmelo Blundo, he would not be covered on this.

Mr. Frank H. Easterbrook: With the ordinary duties that he had done he would be covered, yes.

Unknown Speaker: In repairing the truck?

Mr. Frank H. Easterbrook: Yes, Your Honor he would.

Unknown Speaker: Mr. Easterbrook, I would have thought in kind of as indefinite statute as this that one of the arguments against the point of rest, there would be its administrative difficulty that you would have constant factual disputes, but I frankly gather from your answer to Mr. Justice Marshall’s question that we would have be engaged in very much the same kind of disputes if we followed your theory.

Mr. Frank H. Easterbrook: I do not believe so Your Honor.

I think we could ask a very simple question that the Board asks.

The Board asks two kinds of questions.

One is, did this injury occur on the waterfront that replaces satisfying situs test?

That is ordinarily determined relatively clearly.

The second kind of question the Board asks is whether this person is a person who devotes his life to waterfront activities sufficient to make him a longshoreman.

At that point, we do not care whether he was at the moment of his injury doing things that are traditionally thought of his longshoreman work.

The Board’s test is a mean of excluding a very broad category of inquiries that petitioners would have you want to take.

Chief Justice Warren E. Burger: Mr. Easterbrook, what do you think Congress or the committee meant when they said that the committee does not intend to cover employees who are not engage in loading, unloading and then some irrelevant words just because they are injured in an area adjoining navigable waters used for such activity.

Mr. Frank H. Easterbrook: Mr. Chief Justice I believe.

Chief Justice Warren E. Burger: You just said it is diametrically contrary.

Mr. Frank H. Easterbrook: I do not believe so.

I believe the key to understanding that sentence is to clause beginning, just because.

It is not enough that they simply be injured in a maritime situs.

They have to have something more.

They have to be engaged in the career of being a longshoreman or in longshoring activities.

Just because they are in a situs they do not qualify, but if they are a longshoreman that is a different reason for qualifying under the Act other than loading and unloading.

But I would like to point out something else about that.

It is something that drew some comment by Mr. Justice Rehnquist earlier that part of this was tautological.

The sentence in the committee report says that the committee does not intend to cover employees who are not engage in loading and unloading.

Under Section 2(3) of the statute, no one is an employee unless he is engaged in maritime employment the Longshoreman operations and so on.

If you read the word employee in the legislative history together with its use in the statute, the committee must be talking about people who are already employees having qualified because they are a longshoreman perhaps.

That one should do that that entire sentence becomes less than perfectly accurate because then the committee is saying we do not intend to cover employees who are in the Section 2(3) covered and that clearly is not right.

Perhaps, it indicates that the sentence was written with the less than precise attention to detail.

But in any event, the explanation I just gave to you Mr. Chief Justice is we believe the correct interpretation of the statute, the just because clause is referring to what the situs requirement is all about and not to status requirement.

Unknown Speaker: Mr. Easterbrook, another of way saying the same thing that you do not really read the word employees in that sentence is being used in the statutory definitional sense.

Mr. Frank H. Easterbrook: No, we do not.

Unknown Speaker: And the employer may not be a covered employer?

Mr. Frank H. Easterbrook: Well, in part, that is part that is tautological too because an employer is a covered employer if he has any employees.

Unknown Speaker: The use of employees in the committee report may not be the technical use of how it is defined in the statute, does it?

Mr. Frank H. Easterbrook: I think it probably is not the technical use as defined in the statute and that is the problem that infects this committee report considerably.

There is a slide back and forth in many places in the committee report between technical language as defined in the statute and lay language and it makes it very difficult to read the committee report side-by-side with the statute in a good sense.

The point of rest test is in many ways highly artificial.

In order to demonstrate this I have taken some examples from a book compiled by the National Association Stevedores, one has been submitted to this court.

In Philadelphia, the point of rest is the very first resting place after cargo has left the ships tackle.

In other words, words drop by the ship’s tackle is the point of rest, except for container vessels of Tucker Avenue where the point of rest is in a marshalling yard.

In Boston, the point of rest in sheds near next to the pier.

The cargo is picked up and dropped in several cases before it gets to the point of rest where it stops waiting for someone to pick it up.

In Willington, North Carolina, the point of rest is seaward of the real resting point.

It is other words, that one of the intermediate stops and those are different intermediate points used for break bulk cargo and container cargo.

In Hampton Roads, Virginia, the point of rest is a 100 feet forward of the bow and a 100 feet aft of the stern.

Unknown Speaker: What definition are you taking of point of rest for this comment?

Mr. Frank H. Easterbrook: My point was there is no definition of point of rest your Honor.

Unknown Speaker: But using your statements it does, you are saying it occurs a hundred feet such and such what definition are you taking, even though you may disagree with me?

Mr. Frank H. Easterbrook: I am using the statement of the National Association of Stevedores at to what it means.

What definition may be used to come up with these lines is quite beyond me.

I do not know.

My point is that the same words mean different things in different ports and my suggestion is that perhaps it does not mean anything at all.

Unknown Speaker: Do any of these definitions bind any courts or any Board?

Mr. Frank H. Easterbrook: I do not believe so.

Unknown Speaker: Then what is the relevance?

Mr. Frank H. Easterbrook: What I was suggesting is that petitioners have asked you to adapt a point of rest test and I am suggesting that it does not mean anything.

Unknown Speaker: Well, because it does not mean anything to some of these people does not suggest that it would not be meaningful to a court to something they assume, does it?

Mr. Frank H. Easterbrook: If you adapted a point of rest test you would use those words to mean something else.

Unknown Speaker: Could not a court make its own definition?

Mr. Frank H. Easterbrook: Yes, it could, but at that point the question becomes why?

Unknown Speaker: I making a clear definition, I mean making it in light of the statute and the legislative history.

Mr. Frank H. Easterbrook: One of the problems with the legislative history in this regard is that the words point of rest never appears in the legislative history.

Unknown Speaker: The point of rest whenever it hits the land?

Mr. Frank H. Easterbrook: Pardon your Honor.

Unknown Speaker: The point of rest is whenever the cargo leaves the water and hits the land.

Mr. Frank H. Easterbrook: That is also a conceivable definition.

It is once that is used apparently in Philadelphia.

But the problem with that and one that is overriding the legislative history is that that would create the same sort of walking in and out of coverage that was discussed in Nacirema and Victory Operators and lead to the statute.

I think it is clear indeed that if petitioners are right in this case, both Caputo and Blundo were the victims of shipping coverage.

Both men worked on ships.

Caputo spent most of his time in the holds of ships and even when as in the day of this accident, he was assigned to terminal labor.

He testified that he spent approximately 20% of his time on ships.

Blundo did likewise.

Both men could have been assigned to tasks on the water immediately after completing the tasks at which they were injured.

Both men, therefore, spent part of their time doing tasks covered even under petitioner’s interpretation of the statute.

Both Congressional committees wrote in a portion of the legislative history appearing at page IV of the appendix in the blue brief that the statute would “permit a uniform compensation system to apply to employees who would otherwise be covered by this Act for part of their activity.”

That indeed explains why the Act is written in terms of covered occupation.

Unknown Speaker: Mr. Easterbrook, what if the telephone operator working for the Stevedore employer in his office on the pier when she is injured in the course of her employment?

Mr. Frank H. Easterbrook: Assuming that the telephone operator does nothing, but operate telephones, it is quite likely that that is a truly clerical activity.

It does not fall within the ordinary understanding or longshoreman and longshoring operations.

Unknown Speaker: Well, would not the test be whether or not it is maritime employment?

Mr. Frank H. Easterbrook: That is the ultimate test.

Unknown Speaker: Would that not be the ultimate statutory?

Mr. Frank H. Easterbrook: It is the ultimate statutory.

Unknown Speaker: So it is covered in so far as both certainly as situs.

Mr. Frank H. Easterbrook: Yes, it is a case Your Honor on --

Unknown Speaker: How a employer is a covered employer?

Mr. Frank H. Easterbrook: It is a case Your Honor on which I would not want to do anything to pre-empt an ultimate determination by the Benefits Review Board and it is not a case before us.

But there are some problems meeting the Longshoreman or longshoring operations.

Unknown Speaker: But maritime employment would be the ultimate issue?

Mr. Frank H. Easterbrook: Maritime employment is the ultimate issue and I think that is something the board will have to determine.

Unknown Speaker: Plenty of weight was given to the legislative history, would you think there could be any result other than upholding the telephone operator is not covered, much of these words are all meaningless?

Mr. Frank H. Easterbrook: I think it is very difficult to find out in coverage for the telephone operator your Honor.

Unknown Speaker: Mr. Easterbrook, is there any support for the notion that the term maritime employment has sort of a historical significance that refers to the kind of work that years ago was done by people who went down to the sea and ships etc?

Mr. Frank H. Easterbrook: Your honor, the term maritime employment has a long history in the law of admiralty.

I think it is quite clear that statutory term maritime employment does not mean in the admiralty word maritime employment and the clearest example of that is the coverage of ship builders.

In the law of admiralty, ship builders were not engaged in maritime employment.

Unknown Speaker: But under the Act…?

Mr. Frank H. Easterbrook: Maritime employment including ship builders.

Unknown Speaker: I disagree with you Mr. Easterbrook.

It has two categories.

One is a maritime employment category and the other is the harbor worker category.

The harbor worker category is the one that includes the ship repairman and the ship builder and ship breaker.

Mr. Frank H. Easterbrook: Your Honor, I suppose that interpretation of the statute in that respect depends on where you put the parenthesis.

Unknown Speaker: If you say if term employee means (1), any person engaged employment operation in maritime employment including longshoreman or other longshoring activities and (2), any harbor worker including ship repairman and so forth.

Is that a permissible reading grammatically?

Mr. Frank H. Easterbrook: It would be.

Unknown Speaker: The Section is also supported by the fact that traditionally the harbor worker was not in maritime employment as you point out in your own foot note.

Mr. Frank H. Easterbrook: It would be with one exception.

The Section by Section description of that Section in both the Senate and House committee reports makes it clear that there is only a single test maritime employment and that everything else in that Section is used as a subset of that single test.

That is in the Section by Section description.

Unknown Speaker: Is that a part of the legislative history any clearer than the paragraph about loading and unloading?

Mr. Frank H. Easterbrook: It is, I think.

It is at page 16 for Senate Committee report.

Unknown Speaker: And would apply to dock worker who never put a foot on the ship?

Mr. Frank H. Easterbrook: We think the Act applies to a dock worker who has never put a foot to the ship, we think is unnecessary.

Unknown Speaker: And the uses of the exact same dollies and winches and everything that people on land use?

Mr. Frank H. Easterbrook: Yes Your Honor.

Ultimately the test comes down to what the statute is has aimed at.

We think the statute is aimed at the interface between land and water transportation.

The occupations involved in moving cargo between one mode of transportation and another.

The whole stevedoring and marine terminal industry exists to provide that interface.

Petitioners were injured while performing ordinary and necessary tasks during the movement of cargo between land and water transportation while the cargo was still on the waterfront.

They were the central beneficiaries of the statute and the awards in their favor should be upheld.

Perhaps there is uncertainty in this.

To the extent there is, we believe that they are entitled to the assistance of three time tested principles.

One, the presumption of coverage in section 20(a) of the statute, two the rule of liberal construction for a medial statutes and the presumption of coverage in the statutes indicates that this is one of those statutes and three, the difference due to the agency charged with the administration of the statute.

These principles mean at the minimum that uncertainties in the scope of coverage of the statute should be resolved in favor of coverage.

Petitioner’s arguments raised no more than uncertainty.

They harp upon ambiguities and they offer plausible tests to resolve those ambiguities.

But the Board too has offered plausible tests to resolve any ambiguities.

Its test is more in harmony with the statute and its legislative history and we believe that the awards in this case were proper.

Unknown Speaker: Mr. Easterbrook is the government’s position consistent with the opinion of the Court of Appeals for the Second Circuit?

Mr. Frank H. Easterbrook: No, it is not Your Honor.

The test coverage that the Benefits Review Board has constructed is somewhat more expansive than the test articulated by Judge Friendly.

Unknown Speaker: So you support the position of the board?

Mr. Frank H. Easterbrook: Yes, we do your Honor.

Rebuttal of E. Barrett Prettyman, Jr.

Mr. E. Barrett Prettyman, Jr.: A few brief points if it pleases the court.

First of all I do not know of a single decision of the Benefit Review Board that has denied compensation to any clerical worker of any kind who was injured and I now understand the government to be fully supporting the position of the Benefit Review Board.

You will notice in their brief there was some confusion there because they were talking about people who physically handled cargo.

They apparently now have abandoned that requirement.

Anyone who is on the terminal working and employed is going to be covered.

No. 2, the government shows some perplexity about point of rest.

One of the respondents in these cases is a Director of the Office of Workers’ Compensation Programs of the Department of Labor.

He is a respondent in this case.

That very office issued a report just last December.

The government has never referred to that report in its briefs although we referred to it and quoted it in our briefs.

It is interesting that in that report there does not seem to be any confusion about point of rest because the Department of Labor there says, the respondent in this case their says, “The marine terminal operator is responsible for all movement and handling of the ship’s cargo between the point of rest and any place on the marine terminal property except the shipside.”

And the respondent in this case also says Stevedore operations are confined to the area between the ship and the terminal area called point of rest.

So, I suggest to you that when Mr. Justice Rehnquist asked which of the attorneys we should listen to as to the difficulties of the case and the phrases and so forth, I suggest we should listen in at least in this regard to the respondent who is certainly is an expert as to what the point of rest is, Mr. Easterbrook.

And I might say incidentally that as to point of rest, you do not go back and forth across the point of rest as has been described in oral argument because we are talking about a function here and not a geographical point.

If a man is engaged in the loading and unloading process, if he is part of the gang for example, it makes know difference whether he walks back and forth on the other side of the marshalling area or not, if he is engaged in the unloading process by way of example, he is covered.

Now, as the exact point of physical point of rest may in fact change from terminal to terminal or yard to yard as the government has suggested, but it does not make any difference because in each yard, at each terminal the point is exactly fixed and believe me, there is no confusion at each place as to exactly where the point of rest is as he has described himself using those examples.

It does not make any difference that geographically it may be different in Los Angeles than it is in New York, if in fact it is fixed in each place and everyone knows where it is.

Let me just finally say, that I think the statement was made that unloading and loading was not specifically referred to in the statute.

If that was there, I refer you to Section 2(4) where it is referred to, Section 3(a) where it is referred to and four times during the reports that I have repeatedly referred you to, they specifically talk about the loading and unloading function.

Thank you very much.

Chief Justice Warren E. Burger: Thank you gentlemen.

This case is submitted.