HERB'S WELDING, INC. v. GRAY

Print this transcript Transcript: 

ORAL ARGUMENT OF WOOD BROWN, III, ESQ., ON BEHALF OF THE PETITIONERS

Chief Justice Warren E. Burger: We will hear arguments next in Herb's Welding against Gray.

Mr. Brown, you may proceed whenever you are ready.

Wood Brown Iii: Mr. Chief Justice, and may it please the Court, this is the case of Herb's Welding versus Gray.

It is a case involving the coverage under the Longshoremen and Harbor Workers Act to workmen on fixed platforms in inshore Louisiana waters.

Our position is that Congress did not provide for the coverage of this particular class of claimant, and that there is no justification for extending coverage to him and those like him.

The facts are stated in the Court of Appeals opinion.

The person was working as a welder on an oil production platform within the three-mile limit offshore Louisiana.

There was a gas explosion.

He was injured while he was welding.

From the record, we find that he did nothing on this work... on this platform except to weld, and he welded generally on everything, including gas lines, gradings, railings, and things like that.

The record establishes that he was doing some welding on a gas lift line and at one place in the record, and a gas flow line in the other.

That is significant because a lift line has absolutely nothing to do with transportation of the gas; a gas flow line conceivably could.

The question here, Your Honors, is not situs.

In other words, in a Longshoremen and Harbor Workers Act case, the Court has considered both situs and status.

We concede that if this person is found to be a maritime worker, that the platform itself is a place where this particular type of work is performed, and therefore situs would exist.

The question in the case is status.

In saying that, I have to start off by saying that there is really nothing maritime in the traditional sense about this type of platform.

I would like first to get into the concepts and the differences between the opponents and the applicants with respect to the details in the litigation.

I suggest to the Court that the case here, the decision in this case is controlled by the Court's previous decision in Rodrigue versus Aetna Casualty and Surety Company.

The opponents take the position that Rodrigue was a jurisdictional case.

I suggest that it is not.

I suggest that at that particular point makes no difference, because in Rodrigue this Court clearly decided that platform oilfield labor was no different from labor in the oilfields on land or anywhere else.

In other words, the type of work that this guy was doing at the time he was hurt is no different from oilfield labor anywhere else, either offshore on the Outer Continental Shelf, on the platforms inshore, or in Wyoming.

Unidentified Justice: Mr. Brown?

Wood Brown Iii: Yes, ma'am.

Unidentified Justice: Did Mr. Gray spend some time doing work on movable platforms as well?

Wood Brown Iii: The record does not establish that.

To the contrary, Justice, it says that he considered himself permanently assigned to this particular field, which would have been on fixed platforms.

To completely answer your question--

Unidentified Justice: If he did spend time doing this kind of work also on movable platforms, would he be covered because of the Caputo doctrine and holding?

Wood Brown Iii: --No, ma'am.

There is a problem with your question, because the term "platform" and the term "movable" are self-distinctive.

If the man worked on--

Unidentified Justice: A movable--

Wood Brown Iii: --a movable rig, which is usually a vessel... the fact of the matter is, it is all the time a vessel in the offshore... he would stand a very good chance to be a seaman.

Unidentified Justice: --And probably it would be maritime coverage, even if he were doing the same type of work?

Wood Brown Iii: Yes, ma'am.

If he was hurt on a vessel under your decision in the Director versus Perini, there is no question that that is all it would take.

Unidentified Justice: Well, how are the hazards different--

Wood Brown Iii: Your Honor, the hazards are no different--

Unidentified Justice: --in working on a movable rig and a fixed platform?

Wood Brown Iii: --There are no difference at all.

There is absolutely no difference between a person who is more or less permanently assigned to a vessel and drilling or a person who is more or less permanently assigned to a platform and drilling.

Unidentified Justice: Well, then, why isn't it logical to assume that Congress intended coverage here?

Wood Brown Iii: Because, Your Honor, in the case of a person more or less permanently attached to a vessel, Congress had before it in the Tower bill in... in consideration of the Tower bill in 1972 if... whether or not to cover that person under the Longshoremen and Harbor Workers Act, and deliberately chose not to.

Unidentified Justice: Well, I think that the nonaction by Congress doesn't either help you or hurt you in this particular regard.

Let me ask you how many platforms and workers this decision is likely to affect.

How many fixed platforms and workers are we talking about overall?

Wood Brown Iii: The State of Louisiana thinks, and I have called the Department of Natural Resources, they think that there are 20,000 workers working on inshore platforms.

They think there are 800 platforms offshore Louisiana, and 200 platforms offshore Texas.

The Department of the Interior, I called them.

There is no hard facts on these.

These are all estimates.

Unidentified Justice: But you would estimate 20,000?

Wood Brown Iii: Yes, ma'am.

That's what the State of Louisiana thinks, working offshore.

The Department of the Interior thinks there are nearly 60,000 people working on the Outer Continental Shelf, and another 70,000 in what they refer to as secondary and tertiary employment.

Unidentified Justice: Well, if they were working on a fixed platform on the Outer Continental Shelf, presumably coverage would be extended by the OCSLA.

Wood Brown Iii: OCSLA.

Unidentified Justice: OCSLA.

Wood Brown Iii: Yes, ma'am.

Unidentified Justice: However you want to pronounce it.

Right?

Wood Brown Iii: Yes, ma'am.

Unidentified Justice: They would be covered.

We know that.

Wood Brown Iii: No question about them.

They are covered because of the specific act of Congress which says they are covered.

Now, in reviewing those acts, Justice, keep in mind that there was a change in the text of the OCSLA in 1978, but if you go to the legislative history, it says that they didn't intend to change this particular doctrine or this particular application.

Unidentified Justice: Mr. Brown, Congress has just in the last few days enacted an amendment--

Wood Brown Iii: Yes, ma'am.

Unidentified Justice: --to the statute, has it not, to define employees, and who is covered and who isn't?

Wood Brown Iii: Yes, ma'am.

That was signed by the President, I understand, over the last weekend.

Unidentified Justice: Now, would you plan to address yourself to the effect, if any, on this case of those amendments?

Wood Brown Iii: Those amendments, as I read them, Justice, I don't believe they have any effect whatever on this case at all.

Unidentified Justice: Certainly this was filed earlier, but assuming that it applied, would it affect in any way the resolution of a case like this in the future?

Wood Brown Iii: I don't believe that those amendments... I have read them carefully, and I don't believe those amendments have anything to do with the issues before the Court in this case.

Now, it did address another opinion of this Court, and we are going to... probably one of us is going to be back in front of you as to whether it is retroactive or not.

I don't have any opinion on that point at this point, because I haven't researched it.

I don't know that.

Returning to the Rodrigue decision, Your Honors, if you read through the opinion itself, it is manifest that the Court's decision in Rodrigue was based on what it felt Congress had intended, but it justified Congress's intention on innumerable places throughout the opinion by references to this particular type of work as not being maritime or admiralty type work.

And if you look specifically at the comment on Page 360 of the Court's opinion, it said that the accidents in Rodrigue and Dory, which were the two cases before the Court at that time, the Court uses the word, this is not

"the ordinary stuff of the admiralty. "

In other words, this type of work is not the type of thing that you usually think of when you think of a maritime setting.

Now, of course, there is no question that the Rodrigue case involved a platform three miles out, so this guy with respect to his claim under some compensation Act would have been covered under the Longshoreman and Harbor Workers Act because of OCSLA.

There is no question about that.

But when the Court talks about his work being nonmaritime, there is no difference between the type of work that... the wire line work that was being done in Dory and Rodrigue and the wire line work that is done inside the three mile limit.

So that if the work that is done... described in Rodrigue and Dory is nonmaritime because it is nonmaritime, then it is nonmaritime because it is inshore as well as offshore.

Unidentified Justice: Well, except for those covered by the Outer Continental Lands Act, prior to '72, none of these workers on these drilling platforms were covered by the Longshoremen's Act.

Isn't that--

Wood Brown Iii: The ores offshore were, Justice.

Unidentified Justice: --Yes, offshore because of the--

Wood Brown Iii: Because of OCSLA, which was passed in 1953.

Unidentified Justice: --Yes, that's what I say, but aside from that, it is agreed that you either... they are either covered by the '72 amendments or not at all.

Wood Brown Iii: That's correct.

Unidentified Justice: And the question is, then, what did Congress intend by the amendments in '72.

Wood Brown Iii: Yes, sir.

I think you would have to go back to the original passage of the Act, because the question of situs and status... you are right.

The question of situs and status is one developed--

Unidentified Justice: It has to be changed by '72.

Wood Brown Iii: --Yes, sir.

There would have been no coverage--

Unidentified Justice: Because it is agreed that there weren't any coverage before that except under OSHA.

Wood Brown Iii: --That's what the difference between this case and the Director versus Perini case is.

And that is that in Director versus Perini, the decision was, there is coverage now because there was coverage before 1972.

In this case, you can't use that rationale.

Unidentified Justice: Well, the '72 Act at least extended coverage to those people who would have been covered if they were working on the ship, but they were working on the shore, too, and they certainly extended the coverage to them.

Wood Brown Iii: Yes, sir.

In other words, a person working on a vessel is clearly covered.

Unidentified Justice: Well, even if he is working on a beach.

Wood Brown Iii: Well, he is not covered under Director versus Perini.

Unidentified Justice: No, no, I mean under the '72 amendments.

Wood Brown Iii: Yes, sir.

He is covered on land or on the beach or a shore if he is doing "maritime work".

Unidentified Justice: Exactly.

Exactly.

Wood Brown Iii: And that is the key to this case.

In other words, you have got to get to the point of whether or not this Court agrees with the Fifth Circuit in its holding that oilfield labor is "inherently maritime in nature".

I don't believe it is, and I think that such a decision is contrary to what this Court said in Rodrigue.

Unidentified Justice: Wouldn't... if work on these platforms had been maritime in nature, wouldn't there have been coverage before 1972--

Wood Brown Iii: Absolutely.

Unidentified Justice: --wholly aside from OSHA?

Wood Brown Iii: Absolutely.

OCSLA, Judge, not OSHA.

Unidentified Justice: OCSLA.

I am sorry.

Wood Brown Iii: Yes, sir.

I say that because I realize we are being recorded, and I want to be correct about that.

But, no, you are absolutely correct.

If it was maritime in nature; if this sort of work was inherently maritime, then there would have been coverage prior to 1972.

Unidentified Justice: Well, Mr. Brown, I guess even before '72 there might have been coverage for any injury received if he had been working on a movable rig, right?

Wood Brown Iii: Well, Your Honor, I have to qualify the answer.

If a man is not a seaman, then the answer is yes.

That's correct.

Unidentified Justice: Right.

Wood Brown Iii: But if a man is a seaman, then of course by definition there is no coverage under the Harbor Workers Act.

Unidentified Justice: Yes, right, but we are assuming he is not a seaman, he is a welder on a movable rig.

Wood Brown Iii: Yes.

Well, that doesn't necessarily preclude him from being a seaman.

Unidentified Justice: Well, all right.

Okay.

But making that assumption.

Wood Brown Iii: At least not in the Fifth Circuit.

Unidentified Justice: And he also would have been covered had he been injured going over the water to and from the platform before '72.

Wood Brown Iii: Well, Your Honor, perhaps this is not the case, because the facts don't support it, but perhaps you are going to have to write us a postcript to Director versus Perini, because that particular thing is left over.

In other words, that is a matter, I think, for future litigation, whether a person who is strictly... in other words, he uses the boat strictly as a taxicab.

Is he covered as a result of an injury which occurs while he is using that boat as a taxicab.

I don't think Director versus Perini goes quite that far, although it may.

I don't know the answer to that.

Unidentified Justice: It may.

Yes.

Okay.

Wood Brown Iii: The question to be answered is whether or not this Court agrees with what the Fifth Circuit said in Pippin versus Shell, Pudrough versus American Workover, and Thornton versus Brown and Foot, all of which are cited, and that is whether or not there is any support in the jurisprudence or otherwise for the proposition that oilfield work is inherently maritime.

If you go back to Pippin and Budrough, you will find that that was one of the rationales of the Fifth Circuit's decision.

They held first that there was coverage because there was coverage pre-1972, yet there was also coverage because oil field work is inherently maritime.

I was counsel in the Budrough case.

I brought that case to this Court.

It was pending when the Director versus Perini was decided, and of course once this Court decided that there was coverage if there was coverage before 1972, then of course my writ got denied because it was unnecessary to consider the rest of the decision.

But that is before the Court this time, the question of whether or not oilfield work is inherently maritime, and I suggest to you that as previously stated in light of the Rodrigue decision, it is not so covered.

Unidentified Justice: Of course, Rodrigue might raise some question even about your concession about situs, because Rodrigue said that... at least it recited that these were islands.

Wood Brown Iii: Yes, sir, but--

Unidentified Justice: Not piers.

Wood Brown Iii: --in that particular point, Judge, you've got to remember that Rodrigue was decided pre-1972, when situs wasn't an issue, and when piers and wharves weren't covered under Victory Carriers versus Law and Nacirema versus Johnson.

Unidentified Justice: I know, but just extending the coverage to piers and wharves doesn't extend coverage to Iowa.

Wood Brown Iii: Exactly.

Precisely.

Unidentified Justice: So I don't know why you want to concede situs, but nevertheless you have.

Wood Brown Iii: Well, yes, sir.

I thought about it a long time, Judge, because the Act itself is fairly specific in its listing of the areas which are covered, but it seemed to me to be counter productive to try to convince you that--

Unidentified Justice: I don't want to have to deal with things you don't want us to deal with.

Wood Brown Iii: --Well, I don't think you need to deal with it.

I think I would lose it if I forced you to deal with it, Judge.

Unidentified Justice: I don't know.

Mr. Brown?

Wood Brown Iii: Yes, sir?

Unidentified Justice: I don't know at all.

Mr. Brown?

Wood Brown Iii: Yes, sir.

Unidentified Justice: The respondent here has recovered under the Louisiana Workmens Compensation Act, has he?

Wood Brown Iii: Yes, sir.

Unidentified Justice: What is the amount of that recovery, or what is the nature of it, in the first place?

Wood Brown Iii: Well, the nature of the recovery is exactly the same as the Longshoremen and Harbor Workers Act when Mr. Gray was injured in 1972, the benefits were substantially less than the Longshoremen and Harbor Worker Act benefits.

I think they were like $85 a week.

The Louisiana Act at that point was in the process of amendment, and now the benefits are, while they are not as handsome as the benefits under the Longshoremen and Harbor Worker Act, they are close.

The provisions, the computation is the same.

The only difference is that the maximums under the Longshoreman and Harbor Workers Act are substantially greater than the maximums under the Louisiana Compensation Act, a difference of... I believe the last figure, the maximum under the Harbor Workers Act is a little over $350, and the maximum under the Louisiana Act is a little over $200.

Unidentified Justice: I ought to know the answer to my next question, but I don't recall it.

If respondent wins this case, would he be entitled to return to Louisiana what it has paid him, and what it will in the future?

Wood Brown Iii: No, sir.

No, sir.

Unidentified Justice: Would there be a double recovery?

Wood Brown Iii: No, sir.

Unidentified Justice: What would happen?

Wood Brown Iii: If he wins this case, the only thing currently at issue is whether or not we get some money back which we paid him in response to the BRB's decision, and his attorney would get paid, because we haven't paid the attorney's fees.

Those are the two things at issue in respect to Mr. Gray.

The larger issue is the nearly 150,000 workmen in this area that I defined before.

That is the larger issue before the Court.

Unidentified Justice: I thought you said 20,000.

Now it is 150,000.

Wood Brown Iii: Yes, ma'am, 20,000 working in the offshore Louisiana area alone, but the secondary and tertiary employment... in other words, once you get on the beach, as I appreciate what the government is talking about when it gives these figures, it is talking about people in the transmission areas onshore, the refinery areas, in other words, as far out as you get, and you are talking about a lot of people.

Unidentified Justice: That is not what this case involves, is it?

Wood Brown Iii: No, ma'am.

This particular case talks about those 20,000 workers in Louisiana and another corresponding number of workers in Texas.

Unidentified Justice: We are talking about movable rigs and not the CA5's decision having to do with building a platform onshore.

Wood Brown Iii: We are not talking about that.

Unidentified Justice: No.

Wood Brown Iii: No, ma'am, except that if the maritime worker is not... except that if a maritime worker is not... excuse me, an oilfield worker is not inherently maritime, then the underpinning of the Thornton case falls, too, because Thornton is the one that said... it postulated from Pippin and Budrough that an oilfield worker is maritime, and it said when you are building a platform where you are going to do this maritime work, that is maritime work.

So if this... if I am right in this case, and oilfield work is not maritime, then Thornton falls, too.

Unidentified Justice: Well, suppose you are wrong in this case.

Wood Brown Iii: Then I lose.

Unidentified Justice: Does that necessarily affect the other situation of building platforms on the shore?

Wood Brown Iii: No, ma'am.

If this Court affirms what the Fifth Circuit did, then Thornton is a correct result.

Yes, ma'am.

That's right.

The second point that the opponents make is that there is this argument that a person should not be forced to walk in and out of coverage, and that there should not be checkered coverage.

I suggest to the Court that checkered coverage and walking in and out of coverage is a fact in the oilfield today.

It has been a fact since the oilfields started.

And it will be a fact regardless of what happens in this case, and that is so because these men who work on platforms and then move to a vessel, in other words, a roughneck who is working on a platform is not a seaman, he is a longshoreman and harbor worker if he is working more than three miles out.

If he goes out for his next seven-day hitch and gets assigned to a jackup rig five miles away, he is a seaman, and there is no question under those circumstances that he would have no right to be compensated under the Longshoremen and Harbor Workers Act.

The gray area, of course, occurs when he moves back to the platform, because then if he has got a right of action and damages, he would take the position that he would still be a seaman, and the Fifth Circuit has looked with favor on that sort of contention in a number of cases.

But the point of the argument is that checkered coverage and walking in and out of coverage is a fact of life in the oilfield, and it always has been.

Congress, I suggest to the Court, has authorized or permitted that to continue when the Congress failed to pass the Tower bill, because the Tower bill would in fact have prevented that sort of thing from happening.

There has been a suggestion that somehow is hasn't.

Unidentified Justice: Mr. Brown, may I ask you a question?

I want to be sure I understand your thinking on the case.

Wood Brown Iii: Yes, sir.

Unidentified Justice: You are primarily arguing status rather than situs--

Wood Brown Iii: Yes, sir.

Unidentified Justice: --if I understand your dialogue with Justice White, and do I also understand that you would not think your case would... your situs case, you would also take the same general position if this man never went out on the Outer Continental Shelf, but he was always within state waters.

Would you still not argue situs very forcefully?

Wood Brown Iii: Your Honor, intellectually... I am trying to be intellectually honest with myself.

I cannot argue situs, because if you... unless you figure that the section, that the words of Section 3 are exclusive, and I don't believe Congress intended them to be.

Unidentified Justice: Right.

Wood Brown Iii: And as soon as you say that if maritime work is performed in a particular identifiable area, which I think you have to do on a platform, you have to say that, and once you say that, then they are situs, if oilfield work is inherently maritime.

I don't believe it is.

Unidentified Justice: Yes, I see.

I understand.

But you would... in other words, his situs would be, he would satisfy the situs test even if he didn't occasionally or about half the time--

Wood Brown Iii: Absolutely.

Unidentified Justice: --Yes, okay.

Thank you.

Wood Brown Iii: To focus the situs argument, Judge, we all know that where longshoring work is done and it is done on a wharf, on a wharf... get away from the platform business for a second... it is done on a wharf, that is a maritime situs, but not everybody on the wharf is covered by the Longshoremen and Harbor Workers Act because he is not doing maritime work.

For instance, if you put an oil well on the end of a wharf and drilled a well under it, those oilfield workers wouldn't be covered under the Harbor Workers Act simply because they were on a wharf.

That being so, they are not covered by this platform.

That is the point.

Unidentified Justice: I understand.

Wood Brown Iii: One other thing that I would like to mention.

There is an argument by Gray's counsel to the effect that somehow there is an extension of the Outer Continental Shelf Lands Act.

I suggest to the Court that that is a meritless issue, because the Fifth Circuit had it before it and failed to reach it, and they reached coverage in this case because of their finding that the Longshoremen and Harbor Workers Act applied under its own force.

I suggest to you that you will not find any cases on point that deal with this particular issue.

There are, as I count them, four cases which talk about what the words "as a result of operations" mean, and all of those cases have to do with flights to and from the platform either on seaplanes or helicopters, and I think the result in those cases are correct.

Your Honor, I would like to reserve whatever time I have left for--

Unidentified Justice: Mr. Brown, may I just ask you one more question before you do?

Wood Brown Iii: --Yes, ma'am.

Unidentified Justice: Some of the oil and gas lines that Mr. Gray was working on presumably were lines that were used to transfer oil or gas from under the bed of the water into whatever vehicle is going to take the oil away.

Isn't that right?

Wood Brown Iii: You would have a hard time, Justice, in delving that out of this record, but I have to admit to you that some of the lines which fed into this platform were in fact coming from offshore.

If you look at the transcript which was made up before the Administrative Law Judge, you will see a map, and in that map it shows Mike platform, and it is in one definable area, and you will see platforms coming in from outside the three-mile limit.

Unidentified Justice: You mean lines?

Wood Brown Iii: Lines, yes, sir.

Excuse me.

I did say platforms.

The reason that I have trouble with making the conclusion that this man at the time of his injury was working on one of those lines is the fact that that map shows that those lines were four-inch lines, and he said specifically on three cases that they were two-inch lines.

Unidentified Justice: Presumably he would be working on it part of the time.

Wood Brown Iii: Presumably.

Unidentified Justice: And I just wonder if that doesn't bring this individual pretty close to the business of being really involved in loading or transferring oil and gas.

Wood Brown Iii: Well, Your Honor--

Unidentified Justice: For the purpose of maritime employment.

Wood Brown Iii: --Well, in one sense I guess you could say that, but in the same sense you would have to say that a railroad worker is in the same business as a barge worker with a barge going down the Mississippi River because they are both transporting goods from Minneapolis to New Orleans.

I don't think the analogy, with all possible respect, I don't think the analogy carries.

Unidentified Justice: Mr. Brown, is there anything in the record that shows this particular respondent was in fact working on two-inch line?

Wood Brown Iii: Yes, sir.

On Pages... the specific reference is on Page 55 of the transcript, and there is another reference on Page... I can't find it right now.

Unidentified Justice: That shows he was working on two-inch line?

Wood Brown Iii: It says he was working on a two-inch line.

Yes, sir.

Unidentified Justice: Not four-inch line?

Wood Brown Iii: Yes, sir, and it is a particularly good quote, because it is not... nobody led him into it.

They said, what happened to you?

He said, I was working on a two-inch line.

Unidentified Justice: Is there anything in the record that shows he was working on four-inch line?

Wood Brown Iii: No, sir.

Unidentified Justice: Well, then, why do you say presumably he was... we are talking about a record, not what you may know outside the record.

Wood Brown Iii: I said that, Judge, and perhaps it was a concession that I shouldn't have made.

I would suspect that in reading the record, you could draw the conclusion that at one time or another he worked on the flow line going from offshore onshore.

He wasn't working on that particular flow line at this particular time, according to this record.

Unidentified Justice: Did any of the fact finders below draw that conclusion?

Wood Brown Iii: Yes, sir, the board... Benefits Review Board drew it, and I don't know where they got it from.

It is not in the record.

In other words, it is not supportable in the record.

But of course we are not dealing with what the Benefits Review Board found because the Court of Appeals simply rejected or ignored its rationale.

Unidentified Justice: If we agree with you, I suppose we would remand for the Court of Appeals to reach the other possible ground.

Wood Brown Iii: Well, sir, you would... I would suggest to the Court that... I know the Court is in the business sometimes of--

Unidentified Justice: That is a possibility.

Wood Brown Iii: --I understand that.

I realize that the Court is in the business of drawing lines, but I would suggest to you that Congress when it passed the OCSLA and then repassed it again in 1978 and made it a strict geographical test for those areas outside the three-mile limit, that the Court ought to respect that which Congress has stated and not extend OCSLA to areas--

Unidentified Justice: That may be right, but wouldn't we want the judgment of the Court of Appeals first on the issue that... on the ground that the Benefits Review Board reached?

Wood Brown Iii: --I suspect that there could be some... if the Court found that there was any merit to that issue.

Of course, the Court has got to realize that once you extend OCSLA beyond its limits as a result of these operations and the result of that language, where is the back line?

Unidentified Justice: Well, you suggest we would decide that issue on the merits here?

It hasn't been briefed.

Wood Brown Iii: It has not been briefed.

That is correct.

Unidentified Justice: I don't know why we would want to just do it on our own.

Mr. Brown, may I ask you one unrelated question?

Wood Brown Iii: Yes, sir.

Unidentified Justice: You mentioned the new statute that was just passed does change one of our decisions and there may be a question of its retroactivity.

Would you mind telling me what decision?

Wood Brown Iii: Washington Metropolitan, Judge.

Unidentified Justice: Thank you.

0....

Chief Justice Warren E. Burger: Ms. Corwin.

ORAL ARGUMENT OF CAROLYN P. CORWIN, ESQ., ON BEHALF OF THE FEDERAL RESPONDENT

Carolyn P Corwin: Thank you, Mr. Chief Justice, and may it please the Court.

There is no doubt that in 1972 Congress expanded the coverage of the Longshoremens Act so that it would encompass more than injuries that took place on actual navigable waters.

Unidentified Justice: Didn't it also contract the coverage in some areas?

Carolyn P Corwin: Perhaps you are referring to the status requirement that was imposed in connection with the expansion of coverage.

I think the Court established at least to a considerable extent in Perini that there was no intent to withdraw coverage, but that imposition of the status requirement was merely a way to limit the expansion that was... that took place under the situs requirement.

Unidentified Justice: Weren't the '72 amendments supposed to be kind of a compromise that gave some things to the plaintiff's side and some things to the defendant's side?

Carolyn P Corwin: Overall, I am sure that is the case.

There were a number of provisions in the amendments.

Unidentified Justice: We have had about half a dozen rather close cases here since then, haven't we, involving the '72 amendments?

Carolyn P Corwin: In terms of the scope of coverage, there were a lot more provisions in the '72 amendments--

Unidentified Justice: Yes, and we have decided every one of them in favor of the plaintiff.

Isn't it about time we decided a case in favor of the defendant?

0 [Generallaughter.]

Carolyn P Corwin: --I would suggest not.

I suggest maybe the balance was struck in other parts of the statute, and that you shouldn't be concerned about striking your own balance here in that respect.

The question here is whether Congress in expanding the coverage meant to bring within the Act the sort of injury suffered by Mr. Gray in this case.

That is, an injury to an offshore oil worker, here a welder who happens to be at the time that there is injury on a fixed platform that rests in waters inside the three-mile boundary.

Now, Mr. Gray is the sort of worker who would have been walking in and out of coverage prior to 1972.

Unidentified Justice: Why would he?

Carolyn P Corwin: He would have for several reasons, and this is true of many offshore oil workers.

Unidentified Justice: You have to establish that, I take it.

You think that is critical to your case.

Namely, the '72 amendments didn't intend to cover anybody who never would have been covered before '72?

Carolyn P Corwin: Well, I think Congress's intent in expanding the coverage was to solve the problem of the amphibious worker, the worker who is sometimes--

Unidentified Justice: Walking in and out.

Walking in and out.

Carolyn P Corwin: --Right, sometimes on navigable waters in the course of his employment, sometimes in these areas adjoining the waters, and I think you have in Mr. Gray a prime example of someone like that, and Mr. Brown himself has suggested that the entire offshore oil industry involves people who are walking in and out of different working situations, different locales, different sorts of structures.

So, I think Congress was faced in 1972 with a number of these sorts of situations, and it wanted to provide uniform coverage to solve that sort of anomaly.

I think here you have the sort of employee who presents precisely that anomaly.

Now, I think, Justice White, you asked earlier of Mr. Brown about the situation before 1972 for this particular individual.

Had he been injured on a fixed platform prior to 1972, it appears that he would not have been covered, because he would not have met the actual navigable waters requirement of the statute.

Unidentified Justice: Even if he was walking in and out of coverage or anything else.

Carolyn P Corwin: Even if he had been walking in and out of coverage.

That was the problem that Congress faced.

It just appeared that there was this very strict situs requirement under the pre-1972 statute, so there was this problem for people like Mr. Gray.

Unidentified Justice: I know, but the problem was not just situs.

Carolyn P Corwin: Well, I am not sure that is so, but I think Congress was concerned about the sort of--

Unidentified Justice: Well, let's assume it is.

Let's assume it is, just for the moment, that prior to '72 this kind of employment was not considered maritime employment.

Carolyn P Corwin: --Well, there was not--

Unidentified Justice: Let's just assume that.

And you think Congress intended to change the definition of maritime employment by the '72 amendments?

Carolyn P Corwin: --Well, there was not a requirement that someone be in maritime employment prior to 1972.

Unidentified Justice: I understand that.

I understand that.

But nevertheless, let's assume it was not considered maritime employment.

Unless you answer that, you are not really meeting the argument of your adversary.

Well, I am not sure what you would mean by who was considering it to be maritime employment.

I think we have to look at what Congress had in mind in 1972 in terms of the sort of employee it was trying to bring within this statute.

Well, then, you just don't want to assume that it was not maritime employment prior to '72.

Carolyn P Corwin: Well, I--

Unidentified Justice: That is all right with me, if you don't--

Carolyn P Corwin: --Well, I don't want to really assume anything, but I am suggesting that when Congress spoke of maritime employment in 1972, you have to look at what it was trying to accomplish, and you have to look at kind of a common sense understanding of what they would have meant.

I don't think the term maritime has some fixed and immutable meaning.

Unidentified Justice: --I will just put it to you this way.

Do you think that whatever maritime employment was prior to '72, do you think Congress intended to change the definition of maritime employment in '72?

Carolyn P Corwin: Well, I just don't think there was some immutable definition of maritime employment.

I think you have to look at the--

Unidentified Justice: Well, I guess nobody had to define it before 1975.

It wasn't a requirement, was it?

Carolyn P Corwin: --Well, before 1970--

Unidentified Justice: So nobody had to decide that question.

Before '72, I mean.

Isn't that right?

Carolyn P Corwin: --Prior to 1972, the term maritime employment showed up only in the definition of employer, not employee, and it was an issue the courts rarely reached, because if something happened on navigable waters, it almost always turned out to be maritime in nature.

But I am suggesting that when you are talking about the term maritime, you don't necessarily go back to the Rodrigue case and say what did the court say about maritime there.

Unidentified Justice: Your adversary says that the prior cases in this Court and others indicate that this is not maritime employment prior to '72 and afterwards.

Carolyn P Corwin: Well, I think those cases simply don't relate to what Congress was talking about in 1972 when it amended the Longshoremen's Act.

I think you have to look at what Congress might have had in mind at that point in terms of what it must have meant by maritime employment.

Now, we know that Congress was interested in solving this sort of anomaly of walking in and out of coverage in 1972.

The language that Congress used in amending the statute on its face is clearly broad enough to encompass someone in Mr. Gray's situation, and we suggest that even if it weren't crystal clear on the face, that the language ought to be read to cover a situation like this one in view of Congress's overarching purpose of solving this anomaly of walking in and out of coverage.

Unidentified Justice: Ms. Corwin, may I ask, your opponent suggests, and I think he is probably right on this, that even under your view you will still have a problem of walking in and out of coverage.

It is just that the boundary has moved farther landward.

Carolyn P Corwin: Well--

Unidentified Justice: Because there are a lot of welders who do some welding on shorebased oil wells, and some who do them out on these rigs, and aren't they walking in and out of coverage?

Carolyn P Corwin: --Well, I suppose to some extent you can never completely solve the walking in and out of coverage problem, because coverage determinations under compensation systems by their nature are always going to have these fringe areas.

I think what Congress was trying to do in 1972 was to eliminate at least some of that anomaly to get rid of these rather obvious situations of the amphibious workers who in the course of their employment were regularly going back and forth.

I am sure that Congress knew that it couldn't precisely solve every last limit on this issue, but I think the intent was to go after this sort of anomaly to the extent they could do something practical about it.

Now, Justice O'Connor, you had raised the 1974 amendments, the ones that were signed by the President on Friday, I believe.

Unidentified Justice: The 1984.

Carolyn P Corwin: Excuse me, the 1984 amendments.

They don't address this case.

Congress did suggest it realized that in using the term maritime employment in 1972 it had created some problems that had generated litigation.

It enacted some exemptions to the maritime employment definition, things it said it really didn't consider to be maritime.

It did not address the offshore oil industry.

There was a proposal to reverse the Thornton decision, the Fifth Circuit decision about fabrication on land of these offshore platforms.

Ultimately that was not enacted, so there is nothing in the bill.

Unidentified Justice: What is your view on that?

And would the substantial relationship test of the CA5 which you are supporting lead to approval of the result of coverage as well for workers onshore building a platform?

Carolyn P Corwin: Well, I don't... I think that there is a pretty consistent line of cases that deals with marine construction workers and finds that to be within the maritme area, but... but I really don't think you have to reach that in this case.

I think that what you have got--

Unidentified Justice: But if you adopt the substantial relationship test, that is precisely the test which CA5 has used to reach that kind of worker as well.

Carolyn P Corwin: Well that... that's so, although I think then you get into the question of whether they have correctly applied the substantial relationship test, and I think clearly as to the body of offshore oil workers that we're talking about in this case, there's really no question that they have properly applied that test.

But I don't think the '84 amendments really tell you much one way or the other about the case we have here.

Now this court has recognized that Congress in 1972 clearly intended to end this anomaly of walking in and out of coverage with respect to longshoremen and ship repair types, the people who are the more familiar sort of employees covered by the Act, but there were always other employees covered by the Act, including people like, of course, the construction worker in Perini, including people like Mr. Gray, who by necessity is on water part of the time as a regular part of his employment.

It is of necessity in the offshore oil industry because these structures are out in the middle of the ocean.

They are surrounded by water on four sides, and it is inevitable that in the course of performing duties, people are going to be going on and off the water.

We don't think there is a reason to think that Congress meant to eliminate the anomaly of walking in and out of coverage with respect to these more familiar longshoremen and ship repair people, but to leave the same sort of anomaly, the walking in and out of coverage, with respect to these other employees who have been found by the courts to be covered during part of their activity, while they were on actual navigable waters.

I think that is precisely the sort of thing Congress was trying to get away from in 1972.

Now, offshore oil workers like Mr. Gray are inherently amphibious, as I have said.

They are a far cry from the truck driver who comes from an inland point, who drops off his cargo in the terminal, and who goes back to the inland point.

Congress wanted to exclude those sorts of people when it used the status requirement, the maritime employment requirement... here we've got someone who is in a much different situation, who works constantly on or directly adjoining water virtually the whole time.

And I think it may be worth noting in response to Justice Powell's question about the Lousiana compensation statute, at the time Congress was considering this problem, it noted that the state compensation benefits were quite low, and I would point out that Lousiana in fact was the lowest of the examples that Congress set out in its report.

So if you're concerned about that sort of discrepancy, so was Congress.

By way of perspective, I think it is useful to take a minute to look at the pre-1972 situation of offshore oil workers.

Substantial categories of these workers were covered, as Justice O'Connor's questions have suggested, and I think it is worth noting that the suggestion in some of the briefs in this case, the amicus briefs, that somehow by finding coverage for Mr. Gray, the Court would be bringing a whole new industry within the Longshoremen's Act, is not so at all.

It is really inaccurate to say that.

Obviously, most directly, Congress had provided under the Outer Continental Shelf Lands Act for coverage, so if you had an oilfield that spanned both sides of the three-mile line, the employer knew that he would be subject at least outside that three-mile boundary to the longshoremen's regime.

But you also had people who were inside the three-mile boundary.

You had the people on these movable rigs.

And some of these movable rigs, while they qualify as vessels, look very much like fixed rigs.

There are these jack up rigs that have legs that extend and retract, and they can sit right down on the seabed floor.

Those people, if they did not qualify as the longshoremen's scheme, and you would also have situations like that of Mr. Gray in which you had someone who was traveling between fixed platforms, and who would be covered if his injury was on actual navigable waters during that sort of travel.

And they would continue to be covered under the Perini haven't mentioned are those like that of Mr. Gray, who was injured while he was working on a fixed platform inside the three-mile limit.

He would be sort of an odd man out before 1972.

it probably wouldn't have been on actual navigable waters.

But his situation in which he was having to go back and forth on actual navigable waters and on the fixed platforms, and depending on the circumstances, possibly to a movable rig, and certainly to the Outer Continental Shelf, certainly suggests that Congress would have wanted to solve his situation.

Mr. Shelton of the Drilling Contractors Association testified before Congress when it was considering these amendments, and he said the same thing that Mr. Brown has said.

This is an area in which people are subject to job by job assignments.

You have workers going out to different structures.

The employers are confused because there is the series of compensation systems, and whether an employee is covered under one as opposed to the other may depend on what kind of structure he is on.

Extending coverage to a situation like this is clearly consistent with the sort of rationalization that Congress was attempting to achieve in 1972.

Unidentified Justice: May I ask you, are there any words, any language in the 1972 amendment that supports your position?

Carolyn P Corwin: Well, we think that this Court has noted that Congress used some broad language in amending the statute in 1972, and we do think it is clearly broad enough to encompass a situation like this one.

Unidentified Justice: Which specific words?

Carolyn P Corwin: Well, since we are focusing on the status requirement here, I guess, maritime employment is the category that we have to define.

Now, I think the Court and Congress have recognized that that is a broader category than the enumerated occupations that follow it.

I think as a matter of common sense you would find this sort of employee to be maritime in the sense that these employees are always on the water or right next to the water.

Indeed, the whole industry has an intimate connection with the ocean, with the water, with the vessels that are used in a variety of operations.

So, I think, you know, if you are trying to think of what Congress might have thought when it used that term, sort of as a matter of common sense, you would think that.

In addition, you had people testifying before Congress about the Tower bill, and talking about marine petroleum workers and maritime extractive operations.

But I think if you go beyond that, you also look to the intent of Congress, and this question of the amphibious employee, and there I think the maritime employment is also in existence here.

Unidentified Justice: Is there anything specific in the legislative history relating to offshore platforms?

Carolyn P Corwin: Well, not with respect to the statute that was finally enacted.

There was much talk during the hearings about the Tower bill, which was the proposal to bring all offshore oil industry workers within the statute, and that that would include the people who had qualified as seamen and who were entitled to the Jones Act remedy.

The people who wanted that Act characterized it in terms of needing to cut back on the Jones Act remedy to avoid the seamen member of the crew remedy.

The people who opposed the bill said, no, we want to retain that.

There wasn't that much focus on this other end of the spectrum of the--

Unidentified Justice: Do you think it was just sort of oversight that there was no mention made of workers in this category, even though there were apparently 20,000?

Carolyn P Corwin: --Well, I am not sure, I am not sure it was oversight, and the number 20,000 was used in the hearings, at least.

I think that Congress used a typical example when it was talking in the legislative history and the reports.

It used the example that people are familiar with of the longshoreman, who is sometimes on the boat and sometimes on the dock.

But I think that Congress was told in the course of these hearings by the drilling contractor representatives that a number of these offshore oil people were already covered under the Act.

I think it did not necessarily feel that it ought to enumerate each and every sort of employee.

I think we have to assume that Congress was aware that there were some other people out there other than longshoremen and ship repair people, but I don't think it is really unnatural for Congress to specifically refer to those more familiar types of employees, and to have assumed that it could sort of wrap up the others in this broader term.

Unidentified Justice: Is it fair to say that your argument is based on broad principles of common sense rather than any specific language either in the legislative history or the statute?

Carolyn P Corwin: Well, I think to the extent we would rely on the legislative history, I would go back to the language in the reports in both Houses, in which Congress said, the purpose of this amendment is to provide a uniform compensation system for those employees who were covered for part of their activity under the old Act.

I think that in a nutshell really expresses what Congress intended then.

Unidentified Justice: Well, this fellow wouldn't have been covered prior to '72.

Carolyn P Corwin: He wouldn't have been covered in this particular fact circumstance when he was injured on a fixed drilling platform, but during the course of his employment there were a number of different situations in which he would be covered.

He would be covered when he was on the boat between fixed platforms, which he did sometimes several times a day.

If he were assigned to a drilling barge to do some welding on that he would clearly be covered, because he was on actual navigable waters.

He is covered when he is on the Outer Continental Shelf, which he was at least part of the time.

Unidentified Justice: Isn't the heart of the... don't you think the heart of the Fifth Circuit's holding in this case is their statement that offshore drilling, the discovery, recovery, and sale of oil and natural gas from the sea bottom is maritime commerce?

It goes on to say that this is... and Gray's activity was part of that commerce.

Carolyn P Corwin: Well, yes, I think that is what the Fifth Circuit said.

Unidentified Justice: If they had come out the other way, that offshore drilling is not maritime commerce at all, the result would have been different in this case, I suppose.

Carolyn P Corwin: I suppose that is so.

I think they looked at the common sense, and I suggest we look at that plus what Congress had in mind.

Unidentified Justice: But we don't have any cases that are addressed to this, I don't suppose.

Carolyn P Corwin: Well, I don't think so.

You have addressed the longshoremen and ship repair situation.

You have addressed Mr. Churchill in the Perini case on actual navigable waters.

And this is really, I guess, the next step in what you would consider in that line.

Chief Justice Warren E. Burger: Mr. Henderson?

ORAL ARGUMENT OF T. GERALD HENDERSON, ESQ., ON BEHALF OF RESPONDENT GRAY

T. Gerald Henderson: Mr. Chief Justice, and may it please the Court, Robert Gray was injured, as has been noted, on a fixed gas and oil production platform located in the Bay Marshan Field, which is divided by the three-mile line separating Louisiana territorial waters from the OCS waters.

Gray estimated that approximately 25 percent of his work in the year preceding the accident had been conducted on the OCS, and a review of the map which was entered into evidence before the administrative proceeding indicated that the platform field is an interrelated field with gas operations covering waters that otherwise are not distinguished at all except for the line that runs through that.

In that regard, I think some of the figures that were given by Mr. Brown this morning, the number of workers, 20,000 workers, 60,000 nationwide, I would imagine that those aren't workers that are strictly in state waters.

Those are workers who work offshore.

And I would imagine that the overwhelming number of them are already covered under the Longshoremen's Act pursuant to the OCSLA provisions.

The workers also, like Gray, are moving in and out of coverage in these waters.

Gray could be on the OCS as easily as he could be in state territorial waters.

It has also been noted that Gray would have been covered had he been on the OCS through the Extension Act, that he would have been covered on transit through the oilfields, and that had he had work on a movable rig, he would have been covered.

But because of the combination of the injury in territorial waters and the fixed platform situs, the issue becomes a question about whether Gray is entitled to longshoremen's benefits.

In looking at status, it is necessary to examine the nature and purpose of Gray's activities, whether those activities have a significant connection to maritime navigation or commerce, and whether the purpose of the activities was to facilitate maritime commerce.

In Caputo, the Court noted that with respect to landward extension the language of the '72 amendments is broad, and suggests that the Court should take an expansive view of the extended coverage, as well as the focus on maritime connected nature and purpose of the job rather than the location also serves this particular purpose.

Focusing on Gray's work, the map introduced in evidence during the administrative proceedings depicts the number of platforms existing in both state and OCS waters, and Gray was responsible for welding maintenance work on all these platforms, and was required daily to travel among them in the performance of his duties.

On some days, he would have to travel to perhaps two or three or four platforms, and on other days he would have work duties on, for example, like the E structure of the platform where he was hurt.

He was on that for approximately three or four days.

But in any event, he would have to be transported back to the M structure, the Mike structure, where he was housed daily.

In addition to the regular and recurring travel by boat, Gray was required to board the structures, load and unload his equipment.

His work records document repair work that he did on swing ropes, which is the method by which one gets from a crew boat onto the structure.

He did repair work on boat bumpers, life raft launches, cranes, and decking.

But primarily he was responsible for maintaining and repairing and installing oil and gas lines connecting the Bay Marshan Field.

As noted by the court below, the maintenance of these lines is vital to the drilling and removal of gas and oil, and offshore oil and gas activity should be construed as maritime commerce because of its primary relationship with the sea.

It takes place on structures located in the sea.

It involves transportation across water.

And it of course poses hazards which are complicated by the maritime location.

Certainly Gray meets this test because his work activity is involved in each one of those requirements.

The test as formulated by the Fifth Circuit for land-based workers, drawing on the earlier Second Circuit case, is whether the work bore a realistically significant relationship to traditional maritime activity involving navigation and commerce on navigable waters.

Unidentified Justice: Mr. Henderson, could I ask this question?

This case is kind of like a jigsaw puzzle.

But supposing Congress had never enacted OCSLA.

Would your case be exactly the same?

Did they accomplish anything at all insofar as coverage under the Longshoremen's Act is concerned by OCSLA?

T. Gerald Henderson: Under OCSLA they brought coverage to the OCS worker.

Unidentified Justice: But wouldn't he have been covered anyway under your approach to the case?

T. Gerald Henderson: Yes, I think he would.

Unidentified Justice: So really they were wasting their time when they enacted that statute?

Yes, but OCSLA was before.

T. Gerald Henderson: That was in 1953.

Unidentified Justice: Pardon me?

That was before the '72 amendments.

T. Gerald Henderson: OCSLA was passed in 1953, bringing coverage--

Unidentified Justice: I understand.

T. Gerald Henderson: --to the offshore oil worker.

Unidentified Justice: But you would... do you agree that he would not have been covered prior to 1972, your client?

T. Gerald Henderson: My client would not have been covered.

Unidentified Justice: And nobody even on the--

T. Gerald Henderson: Not at the time of that particular injury.

He may have had coverage--

Unidentified Justice: --Supposing we were talking about an injury to a person on the Outer Continental Shelf doing exactly the same kind of work.

Would he have been covered before 1972?

Yes.

Apart from OCSLA?

Oh, no.

T. Gerald Henderson: --Oh, on the OC... if he--

Unidentified Justice: Under your view.

T. Gerald Henderson: --You are saying he is injured on the OCS without OCSLA?

Unidentified Justice: Yes.

T. Gerald Henderson: There would be--

Unidentified Justice: Wouldn't you still argue there was a substantial relation to maritime employment and all the rest of it?

T. Gerald Henderson: --Well, yes, but given the case of Rodrigue, if he were injured on the platform, he wouldn't be covered, but for the--

Unidentified Justice: Of course, Rodrigue didn't construe the statute.

It was really dealing with the question under the Jones Act.

T. Gerald Henderson: --Which is that, Your Honor?

Unidentified Justice: Well, Rodrigue didn't say a word about the Longshoremen and Harbor Workers Act.

T. Gerald Henderson: No, Your Honor.

The... and I wanted to get to Rodrigue for a minute.

Rodrigue dealt with the Death on The High Seas Act.

Unidentified Justice: Right.

Let me just phrase my question narrowly.

If... under your view, would there have been, apart from OCSLA and all other statutes, if this incident had occurred before 1972 on one of these rigs on the Outer Shelf, would the worker have had coverage under the Longshoremen Act?

T. Gerald Henderson: Without the provisions of OCSLA--

Unidentified Justice: Yes.

T. Gerald Henderson: --he would not have.

Unidentified Justice: Okay.

Thank you.

T. Gerald Henderson: Rodrigue--

Unidentified Justice: Just like he wouldn't have had if he was in state waters.

T. Gerald Henderson: --If he were injured on the fixed platform, that's correct, without the exception of OCSLA.

The Rodrigue case is not a maritime labor case, as has been argued here this morning.

It is no different.

I don't think there was any mention of labor in that particular case.

It was not in consideration of the kinds of maritime employment.

Of course, it was decided in 1969, prior to the 1972 amendments.

The Rodrigue case simply held that platforms were not vessels, and there was no discussion about what maritime employment was, but the argument that is brought here this morning is that because it occurred on a platform, hence it is not maritime employment, and I think what the petitioner does is the same theory that was brought before the Court by the employer in Pfeiffer versus Ford, where the employer attempted to build in another status or situs test on the issue of status, that is, whether there would be further geographical limitations in your consideration of whether an employee had status.

Unidentified Justice: Do you think to recover Gray has to... you have to hold that Gray was injured in an area that is customarily used by an employer in loading, unloading, repairing, or building a vessel?

T. Gerald Henderson: On the situs requirement?

I think he has to meet the situs requirement.

Unidentified Justice: Well--

T. Gerald Henderson: He has to be injured on an area--

Unidentified Justice: --That is used by his employer.

T. Gerald Henderson: --Customarily used for loading and unloading a vessel.

Unidentified Justice: Well, what vessel?

What was this employer doing to load or unload or repair a vessel, or building a vessel?

Don't they take this oil and gas in by pipes?

T. Gerald Henderson: It is done by pipes.

That's correct.

Unidentified Justice: They don't load it on the ships.

T. Gerald Henderson: I don't believe there is any evidence in this case of that.

Unidentified Justice: Well, what... is this area customarily used in loading and unloading or repairing a vessel?

T. Gerald Henderson: This area is customarily used in loading and unloading crews, supplies, and oil from the crew boat to the platform.

Unidentified Justice: But he doesn't have to be engaged in any activity that is related to loading or unloading a vessel?

T. Gerald Henderson: No.

Unidentified Justice: Because he certainly wasn't.

T. Gerald Henderson: Well, he was.

Unidentified Justice: Was he repairing a pipe?

T. Gerald Henderson: He was loading and unloading his equipment in and out of the crew boat.

Unidentified Justice: Every day, but not when the accident occurred.

T. Gerald Henderson: Not when the accident occurred.

Unidentified Justice: I mean, this is something that he did in the ordinary course of events, every day.

He traveled over water where he would be covered, and he would load and unload, but when he was injured, he was welding on a line.

T. Gerald Henderson: On a gas line.

Unidentified Justice: Yes.

T. Gerald Henderson: That is correct.

Thank you.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Brown?

ORAL ARGUMENT OF WOOD BROWN, III, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL

Wood Brown Iii: Yes, Your Honor.

Chief Justice Warren E. Burger: You have five minutes left, and we will hear you out before we rise.

Wood Brown Iii: I won't take the time, Judge.

I think that what the Court has to look at, and I think what is apparent in reading the Act and the cases which have arisen under the Act arising from... coming from this Court is that the Longshoremen and Harbor Workers Act deals essentially with vessel-related activity, and this is not a vessel-related case.

I think that takes this case out of the coverage under the Longshoremen and Harbor Workers Act.

Justice White, you asked the question of whether there was any change in maritime employment in the 1972 Act.

The forthright answer is, no, sir, there was not.

They did not change that definition.

So the definition that this Court came down with before 1972 presumably still applies.

Unidentified Justice: And before '72, for coverage, the employer had to be in a maritime activity.

Wood Brown Iii: That's correct.

And counsel says that Mr. Gray was an odd man out.

Well, he was an odd man out before 1972, and if Congress wanted to take him out of the category of being an odd man out, Congress had the opportunity in 1972, and they had the opportunity again in 1984.

That doesn't really apply to this case, but there is no action by Congress in either case to take him out, and under those circumstances the failure to pass, whether it was conscious or just a refusal or somebody didn't get around to it, the failure to pass the Tower case is, I believe, significant.

If there is a problem with respect to this worker's coverage, Congress should correct it, I suggest, and Congress has that power, as this Court noted in Victory Carriers versus Law under Articles I and III of the Constitution to do so.

That is all I have.

Thank you, sir.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.